Perspectives on the rights of minorities and indigenous peoples in Africa

Solomon Dersso (Ed)

Description

This book is a result of a collaboration between the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) and the Centre for Human Rights, University of Pretoria. Most of the chapters of the book are based on the workshop that the two institutions jointly organised, with the funding from the Conflict and Governance Facility (CAGE). The workshop was held on 13 and 14 April 2007 at the Faculty of Law, University of Pretoria. The chapter by Kristin Henrard and Dwight Newman were subsequently added as they were not present at the workshop. The book combines contributions from emerging African and internationally recognised scholars in the filed. The chapters in the book have been peer-reviewed and reworked by the authors. All efforts have also been made to incorporate a major development subsequent to the conference, namely the adoption of the UN Declaration on the Rights of Indigenous Peoples in September 2007.However, developments after December 2009, including the African Commission’s finding in the Endorois case against Kenya, has not been incorporated. The peer-review process and updating of the chapters account for the unfortunate delay in the publication of this book. The patient cooperation of the contributors and the generous funding of CAGE are much appreciated. The book aims primarily to develop African perspectives regarding the international discourse on minority and indigenous peoples’ rights. The major contributions of the book are its articulation and analysis of the particularities of the African context and its critique and (re)conceptualisation of minority and indigenous peoples rights to cater for these particularities. It should be of great interest to scholars, students, government officials and indigenous peoples’ organisations in Africa and elsewhere in the world.About the editor:Solomon Dersso

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2010
• Nombre de lectures: 0
• EAN13: 9780981442020
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

PERSPECTIVES ON the rights of minorities and indigenous peoples in Africa

Solomon Dersso (editor)

2010

Perspectives on the rights of minorities and indigenous peoples in Africa

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer-reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-0-9814420-2-0

© 2010

The financial assistance of theConflict and Governance Facility(CAGE) is gratefully acknowledged.

Africa and the United Nations Declaration on the Rights of Indigenous Peoples Dwight G Newman

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CONTRIBUTORS

The evolution of the concept of Indigenous peoplesand its contemporary dimensions S James Anaya

PART I: Minorities and indigenous peoples: the evolution of concepts

The African Commission Working Group of 95 Experts on the Rights of Indigenous Communities/ Populations: Some reflections on its work so far Kealeboga N Bojosi

PART III: International dimension of indigenous peoples’ protection

The socio-historical and political processes leading to the emergence and development of norms on minorities Solomon A Dersso

PART II: The African human rights system pertaining to indigenous peoples

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Introduction Solomon A Dersso

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Reflections on the legal protection of indigenous peoples’ rights in Africa Frans Viljoen

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TABLE OF CONTENTS

FOREWORD

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Indigenous Peoples’ Rights and the UN Committee on the Elimination of Racial Discrimination Fergus MacKay

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PART IV: Specific rights of minorities and indigenous people in Africa

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Minorities in Africa and the right to equality and non-discrimination Kristin Henrard

The right to self-determination, minorities and indigenous peoples in Africa Solomon A Dersso

Towards an effective right of indigenous minorities to political participation in Africa Kealeboga N Bojosi

Indigenous peoples’ rights to land and natural resources George Mukundi Wachira

SELECTED BIBLIOGRAPHY

SELECTED INTERNATIONAL INSTRUMENTS AND DOCUMENTS

SELECTED CASES

INDEX

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FOREWORD

This book is a result of a collaboration between the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) and the Centre for Human Rights, University of Pretoria. Most of the chapters of the book are based on the workshop that the two institutions jointly organised, with the funding from the Conflict and Governance Facility (CAGE). The workshop was held on 13 and 14 April 2007 at the Faculty of Law, University of Pretoria. The chapter by Kristin Henrard and Dwight Newman were subsequently added as they were not present at the workshop. The book combines contributions from emerging African and internationally recognised scholars in the filed. The chapters in the book have been peer-reviewed and reworked by the authors. All efforts have also been made to incorporate a major development subsequent to the conference, namely the adoption of the UN Declaration on the Rights of Indigenous Peoples in September 2007. However, developments after December 2009, including the African Commission’s finding in theEndoroiscase against Kenya, has not been incorporated. The peer-review process and updating of the chapters account for the unfortunate delay in the publication of this book. The patient cooperation of the contributors and the generous funding of CAGE are much appreciated.

The book aims primarily to develop African perspectives regarding the international discourse on minority and indigenous peoples’ rights. The major contributions of the book are its articulation and analysis of the particularities of the African context and its critique and (re)conceptualisation of minority and indigenous peoples rights to cater for these particularities. It should be of great interest to scholars, students, government officials and indigenous peoples’ organisations in Africa and elsewhere in the world.

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CONTRIBUTORS

Dwight G Newmanis Associate Professor of Law at the University of Saskatchewan in Canada, where he served as Associate Dean of Law from 2006 to 2009. He is also an Honourary Senior Research Fellow at the University of the Witwatersrand School of Law. He completed his law degree at the University of Saskatchewan, following which he served as a law clerk to Chief Justice Lamer and Justice LeBel at the Supreme Court of Canada. He completed his doctorate at Oxford University, where he studied as a Rhodes Scholar. He has written extensively on indigenous rights, constitutional law, and international law, and he is author ofThe duty to consult: New relationships with aboriginal peoples(2009).

Fergus MacKay is a human rights lawyer and Coordinator of the Human Rights and Legal Programme of UK-based NGO, the Forest Peoples Programme. He has worked as an attorney for indigenous peoples in Alaska and was legal advisor to the World Council of Indigenous Peoples for five years. He has litigated a number of cases before the Inter-American Court of Human Rights and the Inter- American Commission on Human Rights and before the United Nations treaty bodies, including the 2007Saramaka People v Surinamecase, decided by the Inter-American Court. He previously served as an expert advisor to the Organization of American States concerning its proposed American Declaration on the Rights of Indigenous Peoples and as a member of the advisory panel on the World Bank’s Extractive Industries Review. In 2002-05 and 2007, he was the lead instructor at the International Training Center of Indigenous Peoples, based in Nuuk, Greenland. Recent publications include: ‘Indigenous Peoples and International Financial Institutions’ in D Bradlow & D Hunter (eds),International financial institutions and international law Kluwer Law International: Den Haag; forthcoming: From ‘sacred commitment’ to justiciable norms. Indigenous peoples’ rights and the Inter-American human rights system’ in M Salomon, A Tostensen & W Vandenhole (eds),Casting the net wider – Human rights and development in the 21st Century Intersentia Press, Antwerp, 2007 and; The Draft World Bank Operational Policy 4.10 on Indigenous Peoples: Progress or More of the Same? 22(1)Arizona Journal of International and Comparative Law65-98 2005.

Frans Viljoenis professor of International Human Rights Law and Director of the Centre for Human Rights, at the University of Pretoria. Prof Viljoen has published widely on human rights in Africa. In 2009, the Centre completed a project with the ILO and the African Commission on the legal protection of indigenous peoples’ rights in 24 selected African countries, see www.chr.up.ac.za/indigenous.

George Mukundi Wachira was a researcher at the Centre for Human Rights, at the University of Pretoria, at the time of writing this chapter. He later became the Africa Regional Coordinator for the Transitional Justice Programme of the Centre for the Study of Violence and Reconciliation in South Africa. He holds a LLM (2003) and

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LLD (2009) (on land and natural resource rights of indigenous peoples in Africa) from the Centre for Human Rights, University of Pretoria.

Kealeboga Bojosiis a lecturer in law at the University of Botswana. He has written widely on human rights in general and the rights of indigenous peoples in particular. He holds LLM degrees from the University of Pretoria and the University of Cambridge and is currently a DPhil candidate at the University of Oxford, writing on the concept of indigenous peoples in post-colonial Africa.

Kristin HenrardProfessor of Law at Erasmus University is Rotterdam, where she teaches human rights, refugee law and constitutional law. She has written in the areas of human rights and minority rights and has for her credit several books that she wrote and edited. Furthermore, Kristin Henrard is managing editor of the Netherlands International Law Review, member of the international advisory board of theGlobal Review of Ethnopolitics, and chair of a working group on the political participation of minorities (ethnic autonomy).

S James Anayais the James J Lenoir Professor of Human Rights Law and Policy at the University of Arizona's James E Rogers College of Law. Anaya has served as a consultant for organisations and government agencies in numerous countries on matters of human rights and indigenous peoples, and he has represented indigenous groups from many parts of North and Central America in land mark cases before courts and international organisations. He was the lead counsel for the indigenous parties in the case ofAwas Tingni v Nicaragua, in which the Inter-American Court of Human Rights for the first time upheld indigenous land rights as a matter of international law. In addition, he directed the legal team that successfully achieved a judgment by the Supreme Court of Belize affirming the traditional land rights of the Maya people of that country. In March 2008, he was appointed by the United Nations as its Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples. Anaya teaches and has widely published in the areas of international human rights law, constitutional law and most importantly the rights of indigenous peoples. His bookIndigenous people in international lawpublished twice, (1996, 2004) is a leading reference book on indigenous peoples.

Solomon A Derssois a Senior Researcher at one of Africa’s leading think tanks, the Institute for Security Studies (ISS). Before joining the ISS, Solomon worked as Doctoral Research Fellow at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) where he completed his PhD research entitledTaking ethno-cultural diversity seriously in constitutional design: Towards an adequate framework for addressing the issue of minorities in Africa.He holds a LLM degree (2003) from the Centre for Human Rights, University of Pretoria and received his PhD degree in 2009 from the University of Witwatersrand. Solomon has written on constitutional law, the African human rights system particularly in relation to the protection of group rights. His current area of research

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covers the African Union peace and security regime, minority rights law, the African human rights system and constitutional law.

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I NTRODUCTION

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I NTRODUCTION

Solomon A Dersso

The problems of minorities and indigenous peoples in different parts of the world generally have different socio-historical origins, take different forms and are expressed under very different circumstances. In other words, the nature of minorities and indigenous peoples’ issues are generally context-specific, although they can have a common thread that ties them all together. They are results of different historical experiences that emerged from the diffusion of the European nation-state system through colonialism to different parts of the world. As a result, different minorities and indigenous peoples encounter different political, economic and social contexts. To that extent, the specific characteristics and particular form of the issues of minorities and indigenous peoples are colored by the particular contexts in which they arise. This is clearly recognised in the Preamble to the United Nations (UN) Declaration on the Rights 1 of Indigenous Peoples.

This does not deny that there are some dimensions that commonly characterise the problems of all minorities and indigenous peoples. One can cite as an example here discrimination. All minorities and indigenous peoples have historically suffered and still suffer discrimination. Nevertheless, the historical and political situations that created the context for discrimination, the form that the discrimination takes and the nature of the discrimination vary not only from region to region, but also from country to country. While articulating international norms applicable to all minorities and indigenous peoples, it is therefore equally important to use the international framework as a source of legitimacy for conceptualising and framing the application of norms with due regard to the particular historical, socio-economic and political circumstances that define the issue of minorities and indigenous peoples in different regions of the world.

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UN GA Res/61/295 adopted by the General Assembly on 13 September 2007.

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