Land rights and the forest peoples of Africa: Historical, legal and anthropological perspectives

Los derechos a la tierra y los pueblos de los bosques de África: perspectivas históricas, jurídicas y antropológicas
Valérie Couillard, Jérémie Gilbert, Justin Kenrick and Christopher Kidd

Land rights and the forest peoples of Africa: Historical, legal and anthropological perspectives

FPP has published a series of five country studies, and an in-depth overview, examining indigenous peoples' land rights in the forested countries of Africa. The country studies have been produced in collaboration with African experts from Burundi, Cameroon, Democratic Republic of Congo, Rwanda and Uganda.

This composite publication presents and complements a study conducted on the land rights of indigenous peoples in five countries of the forested region of Africa, namely Burundi, Cameroon, Democratic Republic of Congo (DRC), Rwanda and Uganda.

Building on historical facts and legal developments, the study highlights indigenous peoples' loss of resources and land to colonists, commercial enterprises and conservation initiatives. It also describes how, having been dispossessed of their ancestral lands and, in many cases, not allocated alternative land, indigenous forest peoples in Africa today live in extremely vulnerable conditions and experience marginalisation and poverty.

Research in the five countries took place in 2008 and was published in 2009. The authors analysed the main legal developments since the pre-colonial period that have affected indigenous property and access to land. The findings have been discussed with field-based organisations working to promote indigenous rights, and in some cases these organisations have contributed considerably to their content.

The studies retrace in history the manner in which territory was acquired by the state according to international law and the consequences for traditional 'Pygmy' forest-dwelling hunter-gatherer peoples (Batwa, Bacwa, Bambuti, Bagyeli, Baka, Ba'Aka, Baaka), hereafter referred to as 'indigenous peoples'. They thus reveal the manner in which the territory was acquired under the law of the coloniser, and the consequences of this for indigenous peoples. Specific attention was paid to the incorporation or non-incorporation of customary law as a source of law. Post-colonial and independence law was also examined with a view to tracing any legislation that can amount to a plain and clear intent to extinguish prior rights of first/previous occupants and/or rights arising by virtue of customary law. Post-independence and contemporary law and jurisprudence as well as international human rights law also fell within the scope of the research.

The country studies show that legislative evolution has had, and continues to have, tremendous discriminatory consequences for indigenous peoples. They explain how tenure regimes implemented since the pre-colonial era have ignored customary ownership, and how new conditions for land acquisition were imposed after the land was unilaterally declared state property. The findings common to all five countries include the following:

  • Colonial and then independence laws have slowly dispossessed indigenous peoples of their customary rights. There is a long-standing denial of customary tenure rights, coupled with the enactment of official (written) law transferring property to states, notably through imported legal concepts such as 'terra nullius' ('nobody's land').
  • Indigenous peoples have experienced displacement for the purpose of creating protected areas and environmental norms. They were evicted without compensation and without being given alternative land:
    • In Rwanda, the Batwa were dispossessed of their land in the Nyungwe Forest and out of the Parc des Volcans, which became a national park and a sanctuary for gorillas;
    • In Uganda, the Batwa had to leave their ancestral lands in the forests of Bwindi, Mgahinga and Echuya, which were established as conservation areas;
    • In DRC, Batwa families were evicted from the Kahuzi-Biega Forest in order to create a gorilla reserve;
    • In Cameroon, the Baka's community rights have been abolished as a result of the establishment of the Dja Reserve;
    • In Burundi, the creation of the forest reserve on the Congo-Nile watershed, which today corresponds to the Kibira, the Bururi forest reserve and the Kigwena forest reserve, have also involved the displacement of indigenous peoples.
  • Landlessness of indigenous communities is reported as a common denominator throughout the region. This situation has not been redressed. Many families squat on land to which they have no legal right, and suffer permanent risk of eviction. In some cases, indigenous people are allowed to remain on land owned by non-indigenous communities in exchange for agricultural work; others are allowed to stay on land owned by charitable organisations.
  • Indigenous peoples have no, or very restricted, access to their ancestral lands, which have become protected areas and/or national parks.
  • Marginalisation and exclusion of indigenous peoples from ownership and administration of forest resources is widely reported.
  • Processes for acquisition of land titles are barely available to indigenous peoples because the procedures and costs are not accessible to them.
  • Governments of the five countries are committed to international and regional treaties guaranteeing the rights of indigenous peoples, and some have also been extensively guided by treaty bodies on the implications of international and regional standards. But there is a blatant lack of implementation of human rights treaties.
  • The content and structure of colonial, independence and contemporary laws pertaining to tenure and forests have clashed with pre-existing customary laws and practices. Contradictory and conflicting legal norms have stemmed from the mixture of codified and customary systems.

Overall, the five country studies demonstrate that historical tenure regimes have amounted to blatant violations of indigenous peoples' right to equality and non-discrimination. In doing so they assert solidly the need for reparation. It is hoped that the country studies will become useful advocacy tools to incite change and inform reparation processes.

Land rights and the forest peoples of Africa - 1 - Burundi
Jean-Pierre Amani
Land rights and the forest peoples of Africa - 2 - Cameroon
Samuel Nguiffo, Pierre Étienne Kenfack and Nadine Mballa
Land rights and the forest peoples of Africa - 3 - Democratic Republic of Congo
Prosper Nobirabo Musafiri
Land rights and the forest peoples of Africa - 4 - Rwanda
Chris Huggins
Land rights and the forest peoples of Africa - 5 - Uganda
Rose Nakayi