Communication to the African Commission on Human and Peoples' Rights Working Group on Indigenous Populations/Communities Regarding the systematic, pervasive and widespread violations of the rights of indigenous peoples in DRC, October 2006

Communication to the African Commission on Human and Peoples' Rights Working Group on Indigenous Populations/Communities regarding the systematic, pervasive and widespread violations of the rights of Indigenous Peoples in DRC that have given rise to a threat of immediate and irreparable harm.Submitted by:

Centre d’Accompagnement des Autochtones Pygmées et Minoritaires Vulnérables (CAMV)

Association pour le Regroupement et l’Autopromotion des Pygmées (ARAP)

Collectif pour les Peuples Autochtones au Kivu (CPAKI/RDC)

Action pour la Promotion des Droits des Minorités Autochtones en Afrique Centrale (APDMAC)

Solidarité pour les Initiatives des Peuples Autochtones (SIPA)

Union pour l’Emancipation de la Femme Autochtones (UEFA)

Forest Peoples Programme (FPP)

1. This communication to the African Commission’s Working Group on Indigenous Populations/Communities highlights the widespread, persistent and systematic violations of the rights of indigenous peoples in the Democratic Republic of Congo. The accompanying NGO report and annexes provide detailed information in support of this communication.
2. The Democratic Republic of Congo (‘DRC’) ratified the African Charter on Human and Peoples’ Rights (‘the Charter’) on 20 July 1987. It is therefore bound to respect and guarantee the rights set forth in this treaty without delay, however it has failed to do so with regard to indigenous Twa peoples, who suffer pervasive, massive and institutionalized racial discrimination on a daily basis, in violation of their rights under Articles 2 and 3 of the Charter.
3. In violation of Charter Articles 14, 20, 21, 22 and 24, indigenous peoples land and resource rights are neither recognized nor respected in DRC. These and other rights are neither enumerated nor guaranteed in domestic law, domestic remedies are unavailable in the case of violations, and generally applicable legal guarantees do not provide adequate and effective protection for indigenous peoples.[1] This disregard for indigenous peoples’ rights is typified in the recently operationalized 2002 Forest Code, its implementing laws and the large number of forestry concessions that have been issued pursuant thereto, many of which are causing or threaten to cause irreparable harm to indigenous peoples’ rights to their traditional lands, territories and resources. This legislation also violates Articles 13 and 22, by denying indigenous peoples their right to free, prior and informed consent, to political participation, and to development.
4. As detailed in this report, the situation in DRC has deteriorated to the point that the physical and cultural integrity and survival of indigenous peoples is threatened. This is confirmed by independent experts and expert bodies, including the African Commission on Human and Peoples’ Rights (hereinafter ‘the Commission’) and the UN Special Rapporteur on the situation of human rights in DRC (see Section III and Annex 1 of the NGO Report). For example, the Commission has noted that “[i]ndigenous peoples suffer from particular human rights violations – to the extent that some groups are on the verge of extinction.”[2]
5. Additionally, the United Nations Committee on the Elimination of Racial Discrimination (hereinafter ‘CERD’) has noted its concern about racial discrimination against indigenous peoples in DRC. For instance, in its 1996 Concluding Observations, CERD expressed its grave concern about, among others, “…allegations of large-scale discrimination against the Pygmies (Batwa) ….”[3] These experts have confirmed that international oversight and intervention are urgently required to avoid further irreparable harm to indigenous peoples’ rights, dignity and integrity. In brief, the situation has become desperate.
6. 6. In 2002, DRC promulgated a new Forest Code and has subsequently begun adopting a series of implementation laws. Furthermore, 103 forestry “concessions” (equivalent to 147,426 km2 of forest, or an area the size of England and Wales) have been granted, despite a moratorium on forestry adopted in May 2002[4]. The 2002 Forest Code and the forestry concessions have been brought into effect without the participation of the affected indigenous communities (see Section IV of the NGO Report). Additional implementation decrees continue to be adopted without the participation of indigenous peoples (see Section IV of the NGO Report). The 2002 Forest Code and implementing laws violate the rights of indigenous peoples to their lands, territories and resources, and are discriminatory as, inter alia, and in violation of their rights under Article 3, they fail to protect indigenous peoples’ rights to equality before the law and equal protection of the law and criminalize indigenous peoples’ subsistence rights and right to dispose of their natural wealth (see Section IV of the NGO Report).
7. The State has been unresponsive to the efforts made by indigenous peoples to resolve questions surrounding their land, resource and other rights. These efforts have included: submitting a series of complaints to the DRC authorities and the World Bank, the latter of which is providing assistance to the State with regard to natural resources management issues including forestry (see Section III and Annex 7 of the NGO Report); submission of a formal request for an investigation by the World Bank’s Inspection Panel, which has since recognised the need for a thorough enquiry (see Annex 8 of the NGO Report); informing and sensitizing indigenous communities about the Forest Code (in the absence of any similar activity by the authorities); and forming a coalition with several indigenous and international environmental and human rights organisations. As noted above, adequate and effective domestic remedies capable of addressing and resolving violations of indigenous peoples’ rights are unavailable as a matter of fact and law (see Section IV of the NGO Report).
8. Despite these complaints and other advocacy work, the State has not sought to meet with indigenous peoples’ representatives nor has it taken any action to address their concerns in relation to the impact of the 2002 Forest Code and forestry concessions on their rights. Indigenous peoples in DRC are therefore rendered defenceless and are left with no alternative but to seek international oversight and assistance. There is an urgent and compelling need for such assistance as they face daily and severe harm to their livelihoods and cultural integrity and their ability to exercise and enjoy their rights. As the Commission has noted, the very survival of indigenous peoples in DRC is threatened (see Section III of the NGO Report).
9. The authors respectfully requests that the Working Group on Indigenous Populations/Communities:
   1. organise a country visit to DRC to examine the situation of indigenous peoples in that country;
   2. further its collaboration with other human rights mechanisms, including the UN CERD, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, and the Independent Expert on the situation of human rights in the Democratic Republic of Congo.

[1] African Commission on Human and Peoples’ Rights (ACHPR) and International Work Group for Indigenous Affairs (IWGIA) (2005), Report of the African Commission’s Working Group of Experts on Indigenous Peoples/Communities, Submitted in accordance with the “Resolution on the Rights of Indigenous Populations/Communities in Africa”, Adopted by The African Commission on Human and Peoples’ Rights at its 28th ordinary session, (Gambia, Denmark) (hereinafter “ACHPR Working Group on Indigenous Populations/Communities (2005))”, page 25.

[2] Ibid, page 5.

[3] Concluding Observations of the Committee on the Elimination of Racial Discrimination: Democratic Republic of Congo 27/09/96. CERD/C/304/Add.18. (Concluding Observations/Comments).

[4] Ministère de l’Environnement et Ministère de Finances de la République démocratique du Congo, Communiqué de Presse, No. 3519, 1/11/2005. This Press Release by the DRC Ministries of the Environment and of Finance lists 141 existing forestry concessions as at 29 October 2005, of which at least 103 were granted since the May 2004 moratorium. See Annex 5.