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Maasai women in Kenya at a rally to protest their political marginalization and the sale of their communal lands.

Photograph: Panos / Sven Torfinn

The San, the indigenous people of the Kalahari Desert in Botswana, won a major victory in December 2006, at the end of the longest and most expensive court proceeding in that country鈥檚 history. The High Court ruled that the state had wrongfully evicted them from a reserve four years earlier and that they could return home. Civil society activists around the world hailed the ruling as a historic precedent for the rights of indigenous people everywhere, especially in Africa, where many governments have been reluctant to recognize the concept of indigenous rights.

The Botswana case stemmed from the San鈥檚 eviction from the Central Kalahari Game Reserve (CKGR), one of the world鈥檚 largest reserves, in 2002. In response to a class action suit filed by the San that same year, the court ruled that the government had acted 鈥渦nconstitutionally鈥� and 鈥渦nlawfully.鈥� According to Mr. Rupert Isaacson of the Indigenous Land Rights Fund, a San advocacy group, 鈥淭he removals were accompanied by beatings and the destruction of water sources.鈥�

The British colonial government created the reserve, which is 52,800 square kilometres 鈥� larger than Switzerland 鈥� during the days leading up to Botswana鈥檚 independence in 1966. Anthropologists maintained that the San had inhabited the area for at least 40,000 years, but that their numbers were declining at an alarming rate. The colonial administration deemed them to be 鈥渆ndangered鈥� and established the CKGR as a refuge.

Ms. Adophine Muley, representing the Twa 鈥減ygmies鈥� of the eastern Democratic Republic of the Congo, at a UN press conference on indigenous issues.鈥�

Photograph: UN / Stephenie Hollyman

After independence, the new government in Botswana encouraged the San to move out of the park into state-assisted settlements that were within reach of modern services such as schools and clinics and where they could assimilate into modern society. But many San refused, preferring to remain in a natural habitat where they could continue to live as hunters and gatherers, as they had done for thousands of years. Finally, the government decided to evict 3,000 San from the reserve, setting off the legal action.

Despite the court settlement, the battle is not over. The court ruled that the 189 applicants in the case and their children may return to the reserve. Some activists, such as members of the First Peoples of the Kalahari, contend that the ruling should cover all 50,000 San in the country. But the government of Botswana maintains that other San who wish to return may do so only if they apply for and obtain permits from the state.

Who is indigenous?

The case of the San in Botswana brings to the fore a delicate question in Africa: who is an indigenous person? Some communities claim indigenous status in Africa today on the grounds that their ancestors resisted the influence of the massive waves of migration of Bantu-speaking agro-pastoralists who migrated from western to southern Africa beginning around 1000 BC. While some were subsumed by those migrations, others maintained their distinct linguistic, cultural and social characteristics, largely as communities of hunters, gatherers and herders.

Later, Arab language and culture spread across northern and eastern Africa. And finally, a number of European countries colonized the continent, bringing their own influences. Those colonial governments often favoured the dominant, food-producing populations they found in their new colonies and marginalized the 鈥渁boriginal鈥� peoples, as some historians refer to the indigenous people that had settled on the land before the Bantu.

Most governments that came to power following independence have been reluctant to acknowledge claims to rights, especially political rights, on the basis that a particular community regards itself as indigenous. After all, government officials argue, all black Africans consider themselves indigenous to the continent.

Mr. Nigel Crawhall, director of the Indigenous Peoples of Africa Coordinating Committee (IPACC), says the argument for recognizing indigenous rights does not rest on historical precedence. Communities arising from the Bantu migrations, he acknowledges, are just as African as everyone else. 鈥淭he claims of indigenous peoples need to be seen in the context of their systematic discrimination and marginalization鈥� under contemporary political and economic conditions.

鈥淚t was colonialism that brought new economic and political structures that reinforced the power of agricultural peoples over herders and gatherers, and set down the rules of who had access to the state apparatus,鈥� Mr. Crawhall explains. This meant that during colonial rule, agricultural peoples had easier 鈥� if still very limited 鈥� access to education, health care and other social services that were almost completely denied to indigenous communities. When colonialism ended, it was these educated elites that were able to take over the institutions of political and social power.

Bottom of the hierarchy

At the bottom of the colonial hierarchy were nomadic hunters and gatherers. They often withdrew into less hospitable environments, such as deep forests and deserts. In the worst cases, as in colonial South Africa, recalls Mr. Crawhall, European settlers tried to virtually exterminate the San. 鈥淭hey were hunted on horseback, killed with diseases, families were destroyed and children were given to other people as servants,鈥� he told Africa Renewal.

Among Africa鈥檚 many indigenous peoples are the hunter-gatherer forest peoples (鈥減ygmies鈥�) of central Africa, nomadic pastoralists such as the Maasai and Samburu in East Africa, the San in Southern Africa and the Amazigh people (Berbers) of North Africa and the Sahel.

鈥淭he claims of indigenous peoples need to be seen in the context of their systematic discrimination and marginalization鈥� under contemporary political and economic conditions.

鈥擭igel Crawhall, Indigenous Peoples of Africa Coordinating Committee

鈥淲e may not all agree on the definition of indigenous or the categorization of communities as indigenous,鈥� notes Ms. Angela Khaminwa, a Nairobi-based expert on social inclusion policies. 鈥淩egardless of what label we place on ethnic communities that maintain traditional lifestyles and livelihoods, there is no doubt that many of these communities are vulnerable to labour and sexual exploitation.鈥�

Many such groups are struggling with the encroachment of farming into their areas. Others are threatened by conservation policies intended to protect species of animals and plants, but that forbid local communities to hunt or gather. Their languages and ways of life are being eroded. 鈥淭he hesitancy of governments to address the issue of internal difference full force may be due to a need to promote national cohesion,鈥� says Ms. Khaminwa. Giving a community special protection, she adds, might be perceived as political favouritism.

The fears of African governments are not baseless. Insurgents and politicians have all too often dwelt on ethnic differences to mobilize support against their competitors. Claims by different ethnic communities over land and mineral rights, often justified on the basis of historical precedence, have frequently contributed to armed conflict.

鈥楢 legitimate call鈥�

The UN estimates that there are about 370 million indigenous people in more than 70 countries around the world. They are among the most marginalized people in economic, social and cultural terms. Despite the challenges, the world鈥檚 indigenous people have scored notable achievements in their efforts to reclaim rights during the last decade, designated by the UN as the International Decade of the World鈥檚 Indigenous People (1995-2004). That period saw many changes in Africa, notes Mr. Crawhall. One of the most profound was 鈥渢he rise of an organized civil society representing diverse indigenous peoples from one end of the continent to the other.鈥�

These civil-society groups lobbied the African Commission on Human and People鈥檚 Rights, a continental body, to recognize that the concept of indigenous peoples is applicable in Africa. In 2003 the commission adopted a report of the commission鈥檚 Working Group on Indigenous Populations/Communities, which acknowledged that 鈥渃ertain marginalized groups are discriminated against in particular ways because of their particular culture, mode of production and marginalized position within the state 鈥�[a] form of discrimination that other groups within the state do not suffer from. The call of these marginalized groups to protection of their rights is a legitimate call to alleviate this particular form of discrimination.鈥�

The adoption of the report, in theory, subscribed all 53 member governments of the commission to the aims of promoting indigenous rights. But in reality, the majority of countries continue to struggle with putting such concepts into practice, explains Ms. Lucy Mulenkei, director of the Indigenous Information Network in Kenya. While a number of African governments argue that recognizing indigenous rights will foster ethnic tensions, 鈥渨e who are working among indigenous communities still say we want to have these people recognized in order to deal with issues of marginalization and so forth,鈥� she told Africa Renewal.

Under pressure from organizations representing indigenous people, some countries have made significant progress, she notes. Recently, Burundi amended its constitution to guarantee representation in the national assembly to the indigenous Twa people, who live in several countries in Africa鈥檚 Great Lakes region. In neighbouring Rwanda, the government is working with the main Twa organization to investigate war crimes perpetrated against them during the 1994 genocide, in which an estimated one third of all Twa in that country were killed.

Elsewhere in Africa, Cameroon recognizes 鈥減ygmies鈥� and nomadic pastoralists as indigenous people. The government agreed to comply with policies to compensate and resettle indigenous people affected by the construction of the Chad-Cameroon oil pipeline, an initiative supported by private investors and the World Bank. Morocco lifted a ban on the teaching of the Amazigh (Berber) language in schools and has set up a national commission to formulate policies on indigenous language and culture.

Contentious negotiations

The Decade of the World鈥檚 Indigenous People also helped activists focus their attention on the creation of a Permanent Forum on Indigenous Issues at the UN and draft a declaration on the rights of indigenous peoples. The Permanent Forum, which held its first meeting in 2002, gathers annually at UN headquarters to give a voice to the world鈥檚 indigenous people at an intergovernmental level.

Representatives of indigenous people and the international community first began working on the declaration on the rights of indigenous people in 1985. The draft was completed in 1993 () and has been under negotiation since then. On the International Day of the World鈥檚 Indigenous People in August 2006, then UN Secretary-General Kofi Annan described it as the product of 鈥渕any years of complex and at times contentious negotiations.鈥� The declaration, he said, was 鈥渁n instrument of historic significance for the advancement of the rights and dignity of the world鈥檚 indigenous peoples.鈥�

The expected adoption of the declaration by the UN General Assembly in November of that year, Mr. Annan noted, would be a major achievement. But that was not to be. Namibia and other African countries, joined by Australia, New Zealand, Canada and the US, blocked the adoption of the agreement.

The Namibian representative to the meeting explained that some of the declaration鈥檚 provisions ran counter to the national constitutions of a number of African countries. However, he added, the declaration was of such critical importance that it was only 鈥渇air and reasonable鈥� to defer its adoption to allow more consultations.

Kenya鈥檚 representative said the declaration contained a number of contradictions. For instance, it talks of 鈥渟elf-determination鈥� as if it were referring to people living under colonial rule. In his country, he said, all citizens enjoyed the right to self-determination. Another African delegate noted that the concept of self-determination was in direct contradiction to efforts to integrate indigenous people into the mainstream of society. The declaration was divisive, he argued, isolating groups and inciting them to establish their own institutions alongside existing central ones.

The General Assembly delayed the adoption of the declaration until its next session, in September 2007. The failure to approve the draft declaration surprised many observers because in June 2006, African and other states had adopted it at the UN Human Rights Council. 鈥淲e feel very sad about the failure to adopt the declaration,鈥� says Ms. Mulenkei, a member of Kenya鈥檚 indigenous Maasai community.

Ms. Mulenkei notes that many of the concerns that African countries are now bringing up have been debated for a long time, over two decades of negotiations. She believes the real reasons for blocking the resolution are political and economic. Many of the countries opposing the declaration fear that it would give indigenous people the authority to reclaim land and seek compensation for centuries of discrimination.

鈥淎ll these years that the discussions on the draft declaration have been going on, we barely had African governments participating,鈥� Ms. Mulenkei says. 鈥淎nd then at the last minute they come in and say no to the draft declaration. This takes us back many years.鈥� But, she adds, it is now too late for governments to break the momentum. She foresees more progress on indigenous rights in the near future.