Cameroon’s 1994 Forest Code is being reformed and civil society has serious and urgent concerns about the process by which the reforms are taking place and the content of the draft reform proposals.
The Forest Code is the central legal instrument setting out rules regulating relations, rights, and obligations with respect to forests and wildlife. Contrary to Cameroon’s international obligations, the 1994 Code does not recognise the rights of indigenous peoples to the lands, territories, and resources they have traditionally owned, occupied or otherwise used and acquired. It also fails to adequately protect the many interconnected social and economic rights relied on by the cultures and livelihoods of a range of forest-based communities and peoples, such as rights to food and protection from involuntary displacement. The reform of the Forest Code is an opportunity to redress these failures by recognising the rights of indigenous peoples, but the process by which the Code is being reviewed and the content of the draft reform proposals raise serious and urgent concerns as to the government’s commitment to respecting the rights of indigenous peoples and other forest-based communities in respect of their lands and resources.
National civil society groups are concerned that the timetable for these legal revisions, and the manner and process via which civil society and forest community are consulted, remains entirely unclear.
Civil society has at best only received informal reassurances that they will be consulted in due course. In the meantime, closed meetings in relation to the new Forest Code have taken place, to which national civil society were not invited. No open meetings have been advertised to which civil society would be invited to participate.
While it is good that stakeholders including civil society were given ample time to submit proposals for reform before any draft was produced, a first draft of the revised Forest Code has only recently been made public, and we now learn that the Ministry of Forestry and Wildlife (MINFOF) has completed a second, and now even a third version of the Forest Code, without communities or civil society being properly informed, consulted or otherwise involved.
The government’s rapid, successive, and seemingly ad hoc, release of formal reform proposals have frustrated civil society’s ability to analyse the draft provisions and develop a collective response. It has also proceeded without consulting the rights-holders themselves: forest communities and indigenous peoples. Under current government plans (or the lack of them), very little time is being made available and no (or no apparent) resources or consultative process and structure are being put in place to ensure the adequate consultation of either communities or civil society, which is the legal duty of the government. It is deplorable that a third draft of the Forest Code was released before civil society even had the chance to provide comments on the first draft, let alone the second. As a result, forest communities and indigenous peoples are at risk of being further marginalised and discriminated against by the existing reform process.
Despite the limited time and resources available, a preliminary analysis of a third draft of the Forest Code has identified serious shortcomings.
The underlying assumption of the draft reform proposals continues to be that communities have only usage rights over forest lands and resources, rather than meaningful control and property rights over customary forests and resources, which instead remain under the control and ownership of the state.
The law therefore remains inconsistent with international law, which attributes full property rights to indigenous and tribal peoples over the lands and resources that they have traditionally owned, occupied or otherwise used or acquired. While provisions for community forestry, hunting and protected areas have some benefit for communities with the capacity to satisfy the necessary administrative hurdles, they are clearly intended to cover a small minority of forest areas. They therefore wholly fail to mitigate the de jure dispossession of communities from customary forest lands and resources implied by this law, leaving the latest draft incompatible with international human rights law.
The law does contain some limited reference to consultation and participation by communities, including the statement that vulnerable social groups ‘are taken into account’ in forest management. However this perpetuates the current model of forest management which fails to give real control and ownership to communities to set their own development priorities over customary forest lands and resources which for them are essential for food, homes, livelihoods and in many cases for maintaining their very physical and cultural survival. Moreover, the current draft lacks clear, accessible and participatory procedures (such as the right to free, prior and informed consent) to guarantee the procedural safeguards necessary to protect the rights of communities as required by international law.
Under Article 45 of the Cameroon Constitution, domestic laws must be revised so as to be consistent with international law. Of immediate relevance is the UN Committee on the Convention on the Elimination of all forms of Discrimination’s (CERD’s) 2010 concluding observations that it ‘regrets that the land ownership legislation in force does not take into account the traditions, customs and land tenure systems of indigenous peoples, or their way of life’ and recommends that Cameroon ‘take urgent and adequate measures to protect and strengthen the rights of indigenous peoples to land’. These recommendations are reflected in recent concluding observations of the African Commission on Human & Peoples Rights (May 2010) and the UN Committee on Economic, Social and Cultural Rights (January 2012). Although the draft code is of course a law relating to forests rather than land per se, its implications for forest lands means that it must be consistent with relevant international laws and jurisprudence, such as mentioned above, on rights relating to forest land and resources.
The Voluntary Partnership Agreement (VPA) agreed between the EU and the Government of Cameroon under the FLEGT(Forest Law Enforcement, Governance and Trade) mechanism is currently in the process of being implemented by a series of institutional, legal and other governance reforms. Of the many reforms committed to by the government in the VPA is integration of international law into domestic legal framework relevant to forests. Since the Forest Code is the fundamental legislative back-bone relating to forests and forest governance, a failure to ensure that the reform process and content of the new forest code respects international law would undermine the legality and legitimacy of VPA implementation in Cameroon. It would also set a precedent for FLEGT-VPA processes in other countries negotiating or implementing VPAs in the African region and beyond.
Ultimately there is an urgent need to take the vital process steps outlined above to ensure meaningful participation of indigenous peoples in the law reform process going forward before it is finalised by the Prime Minister’s office and the Parliament, so that the substance of the law reflects the rights and needs of those who will be most affected by it.