Indigenous People in Africa: Contestations, Empowerment and Group Rights

Introduction

x Africa Institute for South Africa Introduction Ridwan Laher and Korir Sing’Oei That the indigenous world of custom, ritual and communal governance, especially in Africa, pre-dated the current configurations of nation-states in the continent is unarguable. Despite this reality, international and domestic law, in failing to accord this reality pride of place, has historically banded together customary communities under the rubric of peoples without cognisable sovereignty. Treaties and armistices,1 whenever entered into, between the European powers and native inhabitants were, in the main, considered transitory and clever artifices designed to secure territories without conquest, but were never intended to be enforceable contracts against colonialists.2 Deemed backward and uncivilised, John Westlake, the foremost apologist of colonial annexation of territories in new lands in the nineteenth century, would argue that indigenous people, insofar as they did not enjoy European-style governance and a sedentary lifestyle, could not have constituted part of ‘international society’ which was limited to the civilised nations,3 and any domination and conquest exercised over them would be considered a legitimate expression permissible by the international standards of the time. Other later apologists would attribute the exclusion of indigenous people from the comity of nations to their non-recognition by other civilised states.4 A more egregious legal doctrine used during the nineteenth century to appropriate indigenous peoples’ territories, especially in Africa, was terra nullius under which land occupied by the indigenous peoples was considered ‘legally unoccupied’, and therefore free to be owned by colonialists through ‘legal means’. International law in the twentieth century has, however, discounted the legitimacy of this doctrine.5 More nuanced approaches were also pursued to secure the wanton spoliation of indigenous territories. Franciscus de Vitoria, a sixteenth century Spanish Renaissance Roman Catholic theologian and jurist, noted especially for his contributions to the theory of just war in international law,6 held the view that while conquest was an impermissible moral basis for annexing land occupied by indigenous communities, such an annexation could be justified by the need to advance free trade and halt any barbaric practices on the part of natives, which he deemed contrary to the laws of nature.7 Consequently, the major attributes deployed to discount the legitimacy of the legal status of indigenous communities in international law rested on three issues that ran foul of a Eurocentric vision of modernity: lack of centralised political organisation; a nomadic livelihood system; and their culture.8 To adherents of this school of thought, indigenous rights, if even recognised at all, were either totally overrun or severely constricted by the entrance of the colonial state.9 The extractive character of the colonial state was designed to transfer resources to the metropolitan power with little regard for local development. Its arrival in Africa ushered in xi Indigenous People in Africa: Contestations, Empowerment and Group Rights a period of untrammelled turmoil, violence, population transfers and dispossession. The consequence of colonisation was compounded by the creation of the colonial state, whose inherent exclusion was seized with gusto to further the marginalisation of indigenous peoples. Decolonisation in Africa did not witness an era of extensive restitution of property in land to indigenous and other rural communities whose homelands had been forcefully seized in order to advance colonial agricultural, nature conservation and mining enterprises. Except in post-apartheid South Africa where broad normative admission has been made in regard to the inequity of forced dislocation of communities through discriminatory legislation of the apartheid state,10 most African countries have taken the view that the imperatives of a modern developmental state were incompatible with the recognition of indigenous property systems.11 This is the cloak that post-colonial Africa has deployed to put a wrap on claims of past appropriations while establishing a new foundation for contemporary elite land grabs for purposes not too dissimilar from those of the departed colonial order. This is the context in which the decade-long struggle for the recovery of Endorois land in Kenya is waged. The decision by the African Commission on Human and Peoples’ Rights (ACHPR), the continent’s premier quasi-adjudicative human rights body that broadly recognised the feasibility of restitution of the Endorois’ communal lands forcefully expropriated by the state, provides a critical juncture for a re-examination of the place and meaning of customary-based property rights systems on the continent. Riding the wave of developments in national courts, especially within South Africa, whose constitutional court had, in 2004 in the Richtersveld...