Conservation approaches should recognize role and rights of indigenous communities

As delegates engaged in both raucous and amicable debates in Nairobi during the Fourth meeting of the Open-ended Working Group on the Post-2020 Global Biodiversity Framework dubbed the “United Nations Biodiversity summit” scheduled for 21 – 26 June 2022, there is no doubt that governments and other stakeholders are keen to conserve mother nature albeit with mixed approaches.

It is also beyond doubt that the zeal by governments, the civil and even commercial entities to protect the environment amid vagaries of climate change and ‘anthropogenic’ cause is unprecedented in this era.

But apparently, some governments are lagging behind while some strategies employed may turn counter-productive given the tactics involved especially where indigenous communities themselves voiceless, vulnerable and mostly mariganalised are involved.

As a result observers among them leaders and scientists indicate that indigenous communities are increasingly under siege worldwide, yet from the rainforests of the Amazon and the Congo to the savannahs of East Africa, they could continue to play the protective role.

A case example is in Tanzania where already experts are warning that violence against the people Maasai as a result of the move by the country’s government to evict the community in Loliondo, Ngorongoro district, in the northern region of the country could have global ramifications. This is because the move could embolden other governments to institute nature conservation plans that fail to protect indigenous rights.

Much efforts have been extended in protecting indigenous peoples rights across the globe though. These is because they are inextricably linked to their lands which by coincidence tend to harbour huge natural resources or are themselves coveted for commercial use.

The saddening development is that their ways of life which is arguably close to nature is seen as a hindrance to the exploitation of the resources despite their centuries of custodianship that has enable them bequeath them to the current generations.

Indeed, according to the United Nations Permanent Forum on Indigenous Issues (UNPFII), indigenous peoples have historical continuity or association with a given region or part of it and posses strong links to territories, surrounding natural resources and ecosystems.

The United Nations General Assembly adopted the Declaration on the Rights of Indigenous People in September 2007. Despite not t legally binding, it has provisions that can advance the rights of indigenous people. The provisions include territorial rights, which states that indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used.’

Secondly, it provides for bio-cultural rights that confers indigenous peoples the right to practice and revitalise their cultural traditions and customs as well as spiritual rights whereby they have the right to manifest, practice, develop and teach their spiritual and religious traditions.

Other provisions are decision-making rights whereby indigenous peoples have the right to participate in decision-making in matters which would affect their rights.

It additionally confers to them the right for free prior and informed consent in that they are free to determine and develop priorities and strategies for the development in addition to the use of their lands or territories or other resources.

In fact, under free prior and informed consent, states are required to consult with indigenous peoples through their own representative institutions to obtain their free prior informed consent prior to the approval of any project affecting their lands or territories.

Back to the situation of the Maasai community in northern Tanzania, the African Commission on Human and Peoples’ Rights (the African Commission), through the Chairperson of the African Commission’s Working Group on the Rights of Indigenous Populations/Communities and Minorities in Africa recently raised concern over what it termed Tanzanian police of use violence to evict members of the Masaai community in Loliondo, in the country’s northern district of Ngorongoro.

Commissioner Solomon Ayele Dersso, Chairperson of the Working Group on Indigenous Populations/Communities and Minorities in Africa, in a statement condemned the move which he noted had left several people injured.

The African Commission is gravely concerned that the forcibly uprooting of the affected communities entails grave danger to various rights of the members of the communities, including their rights to: life, bodily integrity, freedom of association, property, culture, family, existence and natural resources, noted the statement.” he said

Citing the ruling of cases lodged by Kenyan indigenous communities, The African Commission reminded the United Republic of Tanzania that it held its decision in Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, that, not only should the members of affected community be fully consulted, but also their consent should be sought and obtained.

It thus requested the government of the United Republic of Tanzania to halt the forcible eviction of the affected the Maasai community in the Loliondo Division of Ngorongoro District, Arusha Region, and east of the Serengeti National Park, from their ancestral lands. It also urged the government to open an independent investigation.

In the same vein, a statement from the International Indigenous Forum on Biodiversity (IIFB), a collection of representatives from indigenous governments, indigenous non- governmental organizations and indigenous scholars and activists that organise around the Convention on Biological Diversity (CBD) and other key international environmental meetings to help coordinate indigenous strategies condemned the eviction of the Maasai from their ancestral land in Loliondo.

Ramson Karmushu, IIFB’s who read the statement at the UN Headquarters in Nairobi, on the sidelines of the ongoing Fourth meeting of the Open-ended Working Group on the Post-2020 Global Biodiversity Framework said that while countries negotiate a new framework for the protection of biodiversity, Maasai communities in Tanzania are fighting government-imposed displacement. These he said was a result of Tanzanian government plans to create a big game hunting area on Maasai farmlands and pastures and was taking place despite the land being legally and historically recognised as belonging to the Maasai community.

Currently, conservation frameworks do not provide sufficient protections for indigenous peoples giving room to abuses by state and non-state actors across the world. Luckily, the gap is under under discussion in preparatory negotiations for the Convention on Biodiversity (CBD), the fifteenth session of the Conference of the Parties COP15, which will be held in Montreal in December this year.

Abuses are a global problem. The shocking disappearance and murder of British journalist Dom Phillips and Brazilian Indigenous expert Bruno Pereira in Javari Valley, in Brazil’s Amazon rainforest is a pointer to how risky championing indigenous peoples can turn out.

Javari Valley in the Amazon is home to the world’s largest number of uncontacted Indigenous people, threatened by illegal miners, loggers, hunters and increasingly, coca-growing groups that produce the raw material for cocaine.

Back home in Kenya, indigenous communities have been keen in seeking protection of their rights and resources. The scenario has seen them successfully lodge cases locally, regionally and continental level.

A report on The State of Indigenous Human Rights in Kenya Prepared for Committee on Economic, Social, and Cultural Rights (CESCR) in 2016 noted that peoples who identify with the indigenous movement in the country are mainly pastoralists and hunter-gatherers, some fisher peoples and small farming communities.

The report noted that the two groups which comprise 25 percent of the national population, face land and resource tenure insecurity, poor service delivery, low political representation, discrimination and exclusion.

They include the indigenous peoples in Kenya include hunter-gatherers such as the Ogiek, Sengwer, Yaaku, Waata and Sanya, while pastoralists include the Endorois, Turkana, Maasai, Samburu and others. The report added that their situation seems to get worse each year, with increasing competition for resources in their areas.

Kenya is yet to pass a specific legislation on Indigenous Peoples and endorse the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in addition to ratifying International Labour Organization (ILO) Convention 169. The convection recognises Indigenous peoples’ right to self-determination within a nation-state, while setting standards for national governments regarding Indigenous peoples’ economic, socio-cultural and political rights, including the right to a land base. The convention is law within the nation-states that have ratified it.

In terms of safeguarding the rights of indigenous people Article 10 of the 2010 constitution human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.

Article 21 of the constitution All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities.

Moreover, article 56 of the constitution stipulates that the state shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups participate and are represented in governance and other spheres of life, ) are provided special opportunities in educational and economic fields,(c) are provided special opportunities for access to employment, develop their cultural values, languages and practices; and have reasonable access to water, health services and infrastructure.

Likewise, Article 174 of the constitution is among several articles that protect indigenous or minorities in peoples rights for it recognizes the right of communities to manage their own affairs through devolution and to further their development, protect and promote the interests and rights of minorities and marginalised communities.

The Community Land Act that was adopted in September 2016, is also perceived as a great step forward for securing indigenous communities land rights.

Much more, Chapter Four of the Kenyan Constitution has the Bill of Rights that makes international law a key component of the laws of Kenya and guarantees protection of minorities and marginalised groups.

But like elsewhere, in Kenya the principle of Free, Prior and Informed Consent (FPIC) is a matter of key concern and one that Indigenous Peoples are advocating for.

Indeed, the Endorois indigenous community case against the government in which it successfully contested their eviction from their ancestral land was a turning point that gave hope to indigenous communities.

As noted by the African Commission on Human and Peoples’ Rights, its landmark decision adopted by the African Union on February 2010, declared the expulsion of Endorois from their ancestral lands was illegal.

The African Union Commission found that the Kenyan government had violated certain fundamental rights of the Endorois community protected under the African Charter on Human and Peoples’ Rights and other international instruments.

The land which the Endorois’ had owned for hundreds of years had originally been appropriated by the Kenyan government in the 1970s to create the Lake Bogoria National Reserve.

Yet in another ruling that reverberated across the continent , after an eight year protracted case , in 2017, the African Court on Human and Peoples’ Rights based in Arusha, Tanzania, ruled that the Kenyan government had violated the rights of the Ogiek people by repeatedly evicting them from their ancestral lands in the then threatened Mau Forest, which the government had sought to conserve.

The ruling had found that the Kenyan government had broken seven out of 68 articles of the African Charter on Human and Peoples’ Rights, ordered the government to take remedial action.

Coincidentally, it was good tidings on 23rd June, 2022 when as the world focused on the Fourth meeting of the Open-ended Working Group on the Post-2020 Global Biodiversity Framework in Nairobi where the role of indigenous communities in biodiversity conservation and their rights took a centre when it emerged that the African Court on Human and Peoples’ Rights, in Arusha, Tanzania, delivered a reparations judgement in favour of Kenya’s Ogiek community.

The community has been waiting for the judgment since the Court ruled in 2017 that the Kenyan government had violated their rights as guaranteed by the African Charter of Human and Peoples’ Rights after and declared that it would rule on the issue of reparations separately at a later date.

Under the ruling, the court rejected the government’s pleas and objections and ordered it to tittle Ogiek ancestral land in the Mau where they had been evicted to pave way for the water tower’s conservation.

The court ordered that the government to pay Kenya Shillings 57,850000 to the Ogiek for material damage and another Kenya Shillings 100,000 000 in moral damage and also to delimit and tittle Ogiek lands and grant collective title for their ancestral land in the Mau.

The government was at the same time required to recognise and respect Ogiek rights to effective consultation in accordance with Ogiek traditions and development on their land.

With the Ogiek customary law and customary land ownership recognized, state agencies and other actors involved in the Mau complex restoration have no otherwise but to work with the Ogiek community as a partner in their endeavors.

Indeed, the legal victories by indigenous communities in Kenya point to a need for a paradigm shift in conservation strategies. Sound policies and progressive laws that entrench wider consultation and in-depth participation in decision by communities are urgently required.

Principle 22 of the Rio Declaration on Environment and Development (1992) states that Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. It calls on states to recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

The command and control and approaches employed by authorities negate the aim and goals for legal instruments and protocols in place to protect indigenous communities.

Additionally, a human rights approach that also put communities at the centre of conservation can yield huge dividends. These encompasses respect and recognition to the land, territories, traditional knowledge, and the free, prior and informed consent of Indigenous Peoples and Local Communities.

Not to be ignored is the support of scientific community, which incidentally alarmed by the high levels of species extinction and with the United Nations calling for countries to designate 30 percent of their land and sea areas for conservation by 2030, will definitely work with Indigenous Peoples, due to their ability to conserve nature. Scientists have for long recognised that indigineous knowledge systems are a key ingredient in solutions for tackling climate change, biodiversity loss and forestalling pandemics.

Perhaps the chilling images of injured pastoralists due to use of force by Tanzanian law enforcers that are a source of consternation even among the diehard conservationists could have been forestalled had a participatory approach involving engagement with the community had been employed.

This is illustrated by the case of Nashulai Community Conservancy in Narok county. It is one of the first ever community-owned and directed wildlife conservancy that is inspiring positive change in terms of local or community resource management and environmental conservation in the East Africa region.

Just like in the day of their ancestors, at Nashulai Community Conservancy people and wildlife coexist for mutual benefit. The community’s stewardship has enabled it conserve the ecosystem sustainably and reap heavily from proceeds of tourism an aspect that has won it recognition far and wide.

A recent report prepared by the United Nations Environment Programme (UNEP), The International Union for Conservation of Nature IUCN, and major conservation organisations titled ‘The state of Indigenous Peoples’ and Local Communities’ lands and territories,’ noted that with increased threats to the global environment, local leadership in governing and managing natural resources is increasingly becoming a critical solution for both people and nature.

The report was majorly a technical review of the state of Indigenous Peoples’ and Local Communities’ lands, their contributions to global biodiversity conservation and ecosystem services, the pressures they face, and recommendations for actions was as a result of broad collaboration of organizations and individuals from different backgrounds.

The parties collective goal in producing the report was ensuring better understanding, highlighting and supporting Indigenous Peoples and Local Communities (IPLCs) and their critical role in conservation and sustainability.

The report underscored the role of indigenous people in biodiversity conservation. “ Indigenous Peoples and Local Communities are vital custodians of the world’s remaining natural landscapes. As such, achieving the ambitious goals and targets in the post-2020 global biodiversity framework will not be possible without the lands and territories recognised, sustained, protected and restored by IPLCs. IPLCs warrant appropriate recognition of their rights and governance authority as well as support to equitably and effectively participate in these global efforts,” reiterated the report.

Admittedly the UNEP report observes that a key challenge is identifying the most appropriate pathways for enabling the resilience and security of local environmental custodians around the world.

But all it is not all gloomy. The UNEP report revealed that The majority of IPLC lands are in good ecological condition with 65 percent of IPLC lands having zero to low levels of human modification.

This means that they are natural to semi-natural lands that are no more than 10 percent modified by intensive human impacts hence offering ecosystems benefits and playing a key role in climate change mitigation. “In total, 91% of IPLC lands are in good or moderate ecological condition, providing further evidence that IPLC custodianship is consistent with the conservation of biodiversity,” added the report.

Delegates at Nairobi conference hope that the that the final proposal agreed on in Nairobi adopts a human-rights approach that gives impetus to conservation models that do not marginalise indigenous communities and local communities.

Lucy Mulenkei, Co-Chair of IIFB and executive Director of Indigenous Information Network in Kenya reiterates that there is irrefutable evidence that the only way the marginalisation of indigenous people can end is by incorporating and ensuring a strong human rights element, that enshrines respecting of the role of Indigenous Peoples and Local Communities into the new global biodiversity framework.

To quote a common wise saying of the late former Australian Prime Minster, John Malcolm Fraser, ‘Solutions will not be found while Indigenous people are treated as victims for whom someone else must find solutions.


About the Writer: Justus Bahati Wanzala

The writer is a Translator (English-Swahili) at the Kenya Broadcasting Corporation, a Journalist and post graduate student of Development Studies and Environmental Law.


Latest posts

Diaz: Is the world free from Covid-19 pandemic?

KBC Digital

Diaz: There is need to improve health standards

KBC Digital

Diaz: Infrastructure development and their significance

KBC Digital

This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. Accept Read More

%d bloggers like this: