International and Comparative Law Quarterly

Current Developments: Public International Law

III. INDIGENOUS PEOPLES' HUMAN RIGHTS IN AFRICA: THE PRAGMATIC REVOLUTION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

Jérémie Gilberta1

a1 Senior Lecturer, Middlesex University. Email: j.gilbert@mdx.ac.uk..

The definition and scope of indigenous peoples' human rights are usually contentious in the context of Africa. While in recent years indigenous peoples' human rights have expanded immensely internationally, in Africa indigenous peoples' rights are still perceived to be in their infancy. At the United Nations, the group of African States delayed the process that finally led to the adoption of the United Nations Declaration of the Rights of Indigenous Peoples in 2007 (UNDRIP). At a national level, most of the States in Africa are still reluctant to recognize the specific rights of indigenous peoples. Until recently, the African Commission on Human and Peoples' Rights (the Commission), the leading human rights institution for the continent, had kept a low profile on the issue and had ‘not always interpreted indigenous peoples’ rights favourably'. From this perspective Commission regarding the communication submitted by the indigenous Endorois community against Kenya casts new light on the rights of indigenous peoples in Africa. The decision, which has already been hailed as a ‘landmark,’ touches on several crucial issues regarding the development of indigenous peoples' human rights in Africa. This groundbreaking decision did not materialize unexpectedly but is part of a wider evolution of the Commission regarding indigenous peoples' human rights in Africa. It echoes the work of the Commission's own Working Group of Experts on Indigenous Populations/Communities (Working Group) which was established in 2001 with the mandate to focus specifically on the promotion and protection of the rights of indigenous peoples in Africa. The mandate of the Working Group is to examine the concept of indigenous communities in Africa, as well as to analyse their rights under the African Charter on Human and Peoples' Rights (African Charter). In 2003 the Commission adopted the report of the Working Group which proposes several avenues for the recognition and promotion of indigenous rights in Africa. The adoption of an Advisory Opinion by the Commission to support the adoption of UNDRIP marked another step toward the affirmation of indigenous peoples' rights in Africa. The Advisory Opinion not only participated in unlocking the reluctance of the group of African States to adopt the UNDRIP, but also reflected developments taking place at the international level on the rights of indigenous peoples as well as their connection to the continent. Remarkably, in recent years, the Commission has started to refer to indigenous peoples' rights in its examination of States' periodic reports. All these factors and the recent decision of the Commission in the Endorois case indicate the emergence of a consistent jurisprudence on indigenous peoples' rights in Africa.

(Online publication January 27 2011)

Footnotes

The author wishes to thank Cynthia Morel, David Keane and Joshua Castellino for comments on an earlier draft of this article.