ANCL-RADC ANNUAL CONFERENCE – ‘The Internationalisation of Constitutional Law’ Rabat, Morocco, 2011-01-20
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Effective Protection of Indigenous Peoples in Africa through the Constitutional Recognition of their Customary Law
ES Nwauche
Associate Professor of Law
Rive Rivers State University of Science and Technology Port Harcourt Nigeria
Director
Centre for African Legal Studies
Port Harcourt Nigeria
Abstract
This paper assumes that indigenous people exist in Africa and explores the existing protection of their rights in the constitutional framework of a number of African States through the recognition of their customary law. The paper determines whether a constitutional recognition of customary law is substantially different from a statutory protection and how the recognition of their customary law interfaces with the constitutional protection afforded ‘Other’ cultural linguistic and religious communities in multicultural African States.
1. Introduction
This paper contends that examines to what extent the constitutional protection of the customary law of indigenous people in Africa can contribute to the effective protection of their rights. In this regard, the similarity of indigenous peoples with other ethnic groups in Africa can be an advantage because what applies to the latter communities also apply to indigenous people. Even though indigenous people are relatively disadvantaged the constitutional recognition of their customary law significantky enhances their ability to protect and preserve the unique features that define them. However the challenge of multicultural African States is how to reconcile the colonial legacy of a dominant liberal legal system with the communal ordering of ethnic communities. It is the constitutional recognition of customary law that in some ways resolves this tension especially if customary law is placed on the same pedestal as common and civil law. It appears however that the recognition of group rights implicit in the recognition of customary law can be enhanced through a better understanding of indigenous people like all other people as communities.
This paper is organized as follows. The next part sketches an overview of indigenous people in Africa and in part three the inferiority customary law in African States is considered. In the ensuing part a review of the recognition of customary law in African States is undertaken. Part five of the paper argues that the constitutional recognition of the customary law of indigenous people will be qualitatively enhanced through the recognition of group rights inherent in the protection of indigenous people as cultural linguistic and religious communities.
II. Indigenous People in Africa
Any serious doubt about the existence of indigenous people in Africa appears to have been erased by the decision of the African Commission on Human and Peoples’ Rights (ACHPR) in the case of Centre for Minority Rights Development (Kenya) and Minority Rights International on behalf of Endorois Welfare Council v Kenya[1] which recognized the Endorosi people in Kenya as indigenous people.[2] The African Commission found that:
“ From all the evidence (both oral and written and video testimony) submitted to the African Commission, the African Commission agrees that the Endorois are an indigenous community and that they fulfil the criterion of „distinctiveness.‟ The African Commission agrees that the Endorois consider themselves to be a distinct people, sharing a common history, culture and religion. The African Commission is satisfied that the Endorois are a “people”, a status that entitles them to benefit from provisions of the African Charter that protect collective rights. The African Commission is of the view that the alleged violations of the African Charter are those that go to the heart of indigenous rights – the right to preserve one‟s identity through identification with ancestral lands. ”[3]
The decision of the ACPHR is consistent with the 2007 Advisory Opinion of the African Commission on Human and Peoples´ Rights on the United Nations Declaration of the Rights of Indigenous Populations.[4] In the Advisory Opinion the ACHR dealt with the definition of indigenous peoples and concluded that: `… it is much more relevant and constructive to try to bring out the main characteristics allowing the identification of the indigenous populations and communities in Africa.´[5] These characteristics were listed by the ACHPR as `(i) Self Identification; (ii) A special attachment to and use of their traditional land whereby their ancestral land and territory have a fundamental importance have a fundamental importance for their collective physical and cultural survival as peoples; (iii) A state of subjugation, marginalization, dispossession, exclusion, or discrimination because these peoples have different cultures, ways of life or mode of production than the national hegemonic and dominant model.´[6]
The Commission further pointed out that:
` in Africa, the term indigenous populations does not mean “first inhabitants” in reference to aboriginality as opposed to non-African communities or those having come from elsewhere. This peculiarity distinguishes Africa from the other Continents where native communities have been almost annihilated by non-native populations. Therefore, the ACHPR considers that any African can legitimately consider him/herself as indigene to the Continent.´[7]
If every African can be regarded as an indigenous person the concept of indigenous people may be considered instrumental in drawing attention to groups and peoples who for different reasons have not been treated as other groups or enjoyed rights common to all groups. The Advisory Opinion recognizes this point when it declares that:
`In Africa the term indigenous populations or communities is not aimed at protecting the rights of certain category of citizens over and above others. This notion does not create a hierarchy between national communities, but rather tries to guarantee the equal enjoyment of the rights and freedoms on behalf of groups, which have been historically marginalized.´[8]
Even though indigenous people differ from one another and from other ethnic communities, they bear the same feature as ethnic religious and cultural communities organized on a communal normative framework where the interests of the community is generally privileged over that of the individual members. The constitutional recognition of customary law which places customary law on the same pedestal as common and civil law has a powerful effect of largely reconciling the tension between customary law and the dominant liberal legal system.
III The Inferiority of Customary Law in African States
The colonial practice of subjecting the application of customary law to validity tests continues in many African States continues up till now. For example in Botswana Customary law exists side by side with civil law, provided that the latter is not deemed repugnant to morality.[9] In Uganda section 14 of the Judicature Act[10] provides that the jurisdiction of the High Court shall be exercised in conformity with written law. In Kenya the Judicature Act[11] permits the application of customary law as far as it is applicable and not repugnant to justice and morality or inconsistent with any written law. In Nigeria customary law is to be applied subject to three validity tests.[12] The first is that customary law must not be repugnant to `natural justice equity and good conscience´; the second is that it must not also conflict with statutes while the third is that it must be compatible with public policy. These validity tests effectively make customary law inferior to the common and civil law. This is even moreso because customary law is oral requiring evidence of its content before it can be applied. The validation of customary law weakens that law in two respects. First it leads to a homogenization of customary law by the judiciary in its evaluative function of customary law because the principles of judicial precedent and judicial notice has led to a situation where a customary law that is applied in one case by superior courts become adopted as the customary law of different communities even when the content nuance and application differ in reality between these communities. Secondly many African judiciaries create new customary law at least in common law countries because the evaluative function of the judiciary in the application of the validity tests is often done with foreign standards and values. This situation is further worsened by the fact that the oracular nature of customary requires that in some countries like Nigeria customary law is a question of fact. This means that customary law must be proved by evidence in court. Usually after a number of applications courts are allowed to take judicial notice of customary law rules. One consequence of the proof of customary law is that the discretion of the judicial officer is fundamental in the recognition and ascertainment of customary law rules. It is thus possible that an asserted customary law rule will be rejected restated reformed or created. In many cases judicial officers have created customary law which has led to the observation of a difference between the peoples’ customary law and judicial customary law.[13]A good example is how the colonial Nigerian judiciary gradually recognized the individualization of land holding.[14] It is important to note that in some African countries such as Ghana and South Africa, customary law is a question of law like other laws. The content of the customary law is supposed to be in the contemplation of the judge. However because of the fact that customary law is oral and largely unwritten, there is also a need to prove customary law as if it is regarded as question of fact.
The validation of customary law in many African States continues the colonial denigration of customary law and its inferior status to the common and civil law. The liberal ethos of the common and civil law has made it even more difficult for African States to meaningfully recognize and integrate customary law into their national legal systems. It is therefore very unlikely that indigenous people can take advantage of customary law in the protection of their rights even when there is a Bill of Rights in the national constitutions. This is moreso for indigenous communities who are marginalized oppressed and discriminated against. It can be asserted that it was the inferior status of customary law in Kenya that led the Endorois to bring their action before the ACPHR.
IV The Constitutional Protection of Customary Law
Many African States have not utilized numerous periods of constitutional design to effectively address the challenges posed by the plurality of their legal system. This not to say that the Constitution does not address of contemplate customary law in some respects. This is not feasible and that is why for example the constitutions of Ghana[15] and Sierra Leone[16] declare in their Constitutions that the common law of their countries shall include customary law. It would appear this constitutional elevates customary law the same status as the common and civil law especially in the case of Ghana where the repugnancy tests are no longer applicable.[17]
Another way of an effective constitutional recognition of customary law is to declare that customary law is of the same status as the common and civil law. This is what South Africa has done where s. 211 (3) of the 1996 Final Constitution provides that “ The Courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that deals specifically with customary law.’ South African courts have interpreted the nature of the constitutional protection of customary law. In Alexkor Ltd and Another v Richtersveld Community and Others,[18] the Constitutional Court stated that:
“While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common-law, but to the Constitution.” (footnotes omitted) [19]
Whatever doubt that remained of the position of customary law in the South African legal system was erased in Bhe v Magistrate Khayelista[20] where the Court again affirmed the recognition granted to customary law in the FC[21]:
`…Quite clearly the Constitution itself envisages a place for customary law in our legal system. Certain provisions of the Constitution put it beyond doubt that our basic law specifically requires that customary law should be accommodated, not merely tolerated, as part of South African law, provided the particular rules or provisions are not in conflict with the Constitution.´ [22]
There is evidence that the countries that directly recognize customary law are more likely to recognize the customary law of indigenous peoples. For example in South Africa the Constitutional Court declared in the landmark case of Alexkhor Ltd v Government of the Republic of South Africa v Richtersveld Community the Constitutional Court declared that:
‘we are of the view that the real character of the title that the Richtersveld Community possessed in the subject land was a right of communal ownership under indigenous law. The content of that right included the right to exclusive occupation and use of the subject land by members of the Community. The Community had the right to use its water, to use its land for grazing and hunting and to exploit its natural resources, above and beneath the surface. It follows therefore that prior to annexation the Richtersveld Community had a right of ownership in the subject land under indigenous law.’[23]