The concepts of minorities and indigenous peoples are controversial under international law and politics. The very difficulty arises from identifying with precision those people falling under the two categories and the extent of the rights and level of protection to be claimed. Owing to the difficulties surrounding the two notions, the purpose of this section will be limited to elaborating any existing legal norms relating to the two groups.
Protection of Minorities
There is no legally binding and accepted definition of minority. Even there are conflicting positions regarding the very need of definition. However, for the purpose of this text, the following are provided from the UN minority framework. Francesco Capotorti, the UN Special Rapporteur of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, defines minority as:
“A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members-being nationals of the state-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.
Another Special Rapporteur of the UN, Jules Deschenes, has defined the concept in more or less similar manner. But what are the basic elements behind the above definition and what problems can we observe?
Certain relevant defining characteristics can be identified from the above definition: objective and subjective criteria.
Those elements which can be categorized under objective criteria are the requirements of: - distinct groups, the numerical factor, non-dominance, nationality of the state and existence in the state. Factors falling under the subjective criteria are the sense of community, goal and self-identification. Do you see any problem with one or more of the above elements?
As to the protective regimes of minorities, there are little and unsatisfactory regimes despite the long period movement (at least formally and vigorously starting from IWW). The two possible reasons behind repeated reluctance for the recognition of minority rights by the international community were: ideological and the implication of its recognition. In the first case, the individualistic notion of human rights development has not been willing to accept certain groups as holder of rights. The second arises from the ambivalence of the international community that abuse of powers and violation of state sovereignty had occurred in the name and under the guise of minority rights.
This has minimized the scope of protection of minority rights during the extensive standard setting as envisaged by the inclusion of a single individualist version under the ICCPR. Article 27 of ICCPR, though it contains some rights of group/collective dimension, is more of individualist as it begins by ‘persons belonging to…’ the UN Declaration on Minorities has also primarily taken the individualist approach of minority protection.
In the African Context, unlike ICCPR, there is no single provision in the ACHPR or other separate instruments dealing with the protection of minority groups. This was too unfortunate as African states had inherited colonial boundaries under the uti posidetis principle which fragmented a single ethnic group. The ever-increasing conflicts among the diverse ethnic groups and interventions from neighboring states or peoples are creating a devastating effect on the peace, stability and development of the continent. Thus, it is contended that real minority protection regimes can only be emerged from national constitutions by citing the Ethiopian and South African constitutions.
However, it is still possible to argue for the existence of minority rights protection regimes under the ACHPR. In the first place, members of minority groups can invoke the safeguards of equality and non-discrimination. If there is any differential treatment on the basis of their membership in a certain minority group (ethnic, linguistic, religious, etc) which prejudices their rights, it is possible to challenge. Freedom of religion, rights of participation in the government of ones state (political participation), freedom of association, assembly and expression can also essentially serve the rights of minorities.
The more pertinent grounds of minority protection in the ACHPR can be the principle of equality of peoples, the rights of people to existence, the self-determination, and the right to development (Arts.19-22 of ACHPR). The notion of ‘peoples’, though usually taken from colonial aspect or oppression by external(alien) power, there has been a strong argument to apply it within the set up of sovereign state and its peoples. Thus, Article 19 of the ACPPR on the equality of peoples would be a condemnation of all hegemony-de jure or de facto-exercised by one or more ethnic group over one or more others. Similar approach was taken by the African Commission when it stated that the right of equality peoples to equality had not been violated by the Government of Mauritania. It has been contended that Article 19 of the Charter would thus serve to prevent all discrimination against any particular ethnic group, in other words, all discriminatory practices aimed at its members solely on the basis of their membership of that group.
The rights to existence and self-determination are other closely related rights of paramount importance to certain minority groups. The right to existence relates to the right of certain groups of people (as minority) to physical existence. Thus, like the Genocide Convention, it prohibits the acts directed towards extermination of certain groups of peoples including minorities.
The last to come in this relation is the right of peoples to self-determination. Even if the holders of this broad right have been still debatable, it is possible and legitimate for certain minority groups to claim the right to self-determination.
It is more plausible to invoke the internal dimension of the political, economical, social and cultural self-determination of certain group of peoples whatever meaning is given to the later term. Of course, the practice of African Commission, as revealed in the Katangese secession case, confirms the same position.
Therefore, minority groups can (through the instrumentality of these rights) ensure their right to separate identity. Ensuring ones separate and distinct identity in turn requires an exercise of a series of other rights such as linguistic rights, cultural rights, participatory rights and even including the right to equality. Owing to their numerical inferiority and non-dominant position, minorities should be positively assisted in keeping their distinct identity though this does not prevent any voluntary assimilation.
3.4.2. Indigenous Peoples
The term ‘indigenous’ in ‘indigenous peoples’ rights is a result of significant population movements spearheaded by colonial conquest, mass murder, dispossession, and displacement, particularly in the Americas and Australia. ‘Indigenous’ came to be defined in opposition to those who came later (‘second peoples’), who dislocated ‘first peoples’ through conquest and colonialism. The ‘primitive’ cultural distinctiveness of a particular group also emerged as a further defining feature denoting indignity.
In the international arena, it is the ILO which for the first time adopted a separate Convention in 1957 and lager in 1989 concerning Indigenous and Tribal Peoples in Independent countries. Echoing the ‘first peoples’ and ‘primitiveness’ elements, the later convention applies to people who descended from populations ‘which inhabited the country…at the time of conquest or colonization’, and whose ‘status is regulated… by their own customs or traditions’. The basic obligation of state parties is to guarantee these groups ‘the full measure of human rights and fundamental freedoms’. Since few states ratified this convention (esp African states are reluctant), the UN developed other institutional mechanisms-a Working Group on Indigenous populations and a Special Rapporteur for Indigenous Peoples.
According to such initiatives, the UN came up with the working definition of indigenous populations as follows:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.
The indispensable element of the definition of indigenous peoples seems to be the desire or interest in the preservation of certain historical and traditional characteristics of the group. These include a groups desire for maintain the continuity of its distinctive characteristics, preserve its ethnic identity, maintain occupation of its ancestral lands, keep its religious beliefs and use of its language.
After a long process within the UN, the Human Rights Council in June 2006 approved the UN Declaration on the Rights of Indigenous peoples and this was adopted by the GA on Sept. 13, 2007. This declaration discards the notion of ‘tribalism’ and introduces the right to self-determination of indigenous peoples (Arts 3&4). This includes the right to autonomy in their internal and local affairs.
The involvement of African states in the UN initiatives has been very limited: no African state has ratified the ILO Convention 169 and of the 13 African members of the Human Rights Council, only four of voted in favour of the UN Declaration. The resistance to accepting the rights of ‘indigenous peoples’ is due in to the association of the term with colonialism, informing uneasiness about the determination of who ‘first peoples’ are, and fear the recognition of the right to self-determination. Even in January 2007, the AU assembly expressed its concern on the destabilizing effect of the UN Declaration invoking its blind acceptance of the principle ‘uti posidetis’.
It is said that in Africa, most nationals are in varying degrees ‘indigenous’ in the original sense of the term. Attaching the term to only one particular group would, therefore, be an unacceptable privilege of a part of the nation and would undermine nation-building. Therefore, the need to focus the term indigenous to refer to ‘marginality’, and ‘self-identification’ rather than priority of time’ developed in Africa.
However, it is asserted that indigenous group may still be identified, mainly on the basis of their life style and the ethnical imperative of their marginality and vulnerability. It is the confluence of a historical dependence for survival on the land, exemplified, in Africa, by a life of hunter-gatherer and pastoralists, and a present day neglect and exploitation that constitute an ‘indigenous’ group. It is precisely their traditional lifestyles that left indigenous groups unprepared for life in a modernizing state, eroding the basis of their survival, increasing their vulnerability and exposing them to the real risk of extinction.
Like the minority cases, the African Charter does not expressly include indigenous peoples within its ambit. However, it is still possible to argue that indigenous peoples can be beneficiaries of the charter-guarantees both as an individual and collectivity (from peoples rights). Among these, one could be the right to autonomy as clarified in the Katangese secession case. It is also interesting to note that the African Commission has provided an institutional foothold for the concerns of indigenous peoples in 2002 when it established the Working Group on Indigenous Populations or Communities in Africa. The Working Group prepared a report which was adopted by the Commission in 2003. In this very significant report, the Commission takes the view that indigenous peoples are present in many African countries, that the African charter guarantees their rights as individuals and ‘peoples’, and that state parties to the charter routinely violate these rights.