James Anaya

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Cases examined by the Special Rapporteur (June 2009 – July 2010)

A/HRC/15/37/Add.1, 15 September 2010



XXXI. Uganda: Situation of the Benet community living in the Kapchorwa District of Eastern Uganda, on the edges of Mount Elgon

397. In a letter dated 14 May 2009, the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, James Anaya, together with the Special Rapporteur on the right to food, Olivier de Schutter, the Special Rapporteur on the right to adequate housing as a component of the rights to an adequate standard of living and on the right to non-discrimination in this context, Raquel Rolnick, and the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, called the attention of the Government to allegations received concerning the situation of the Benet community living in the Kapchorwa District of Eastern Uganda to the Government of Uganda. The content of the Special Rapporteurs joint communication of 14 May 2009 was included in the Special Rapporteur’s second annual report to the Human Rights Council (HRC/12/34/Add.1, paras 430-439). There is no record of a response this communication from the Government of Uganda in the files of the Office of the High Commissioner for Human Rights the 14 May 2009.

398. In light of the information received on the Benet situation, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people offers the observations below, which include a series of recommendations. These observations, made in an ongoing spirit of constructive dialogue and cooperation conducive to the promotion and protection of human rights, were conveyed to the Government in a communication dated 1 April 2010.

Background

399. As already stated, the the contents of the 14 May 2009 joint communications were included in the Special Rapporteur’s 2009 annual report to the Council, but for ease of reference the allegations received and tramsitted in that letter are summarized here.

400. According to information received by the Special Rapporteurs, 400 members of the Benet indigenous people were forcibly resettled from a 1,500 hectare area within the Mount Elgon National Park in February 2008. The evicted people were part of a larger group of Benet people who had been resettled during the 1980s into what is known as the Benet Resettlement Area, to make way for what would be the Mount Elgon National Park. However, because the Government did not originally survey the resettlement area, it did not notice that this area was 7,500 hectares and not the originally intended area of 6,000 hectares. After surveying the area in 1993, the Government evicted around 6,000 people residing in the extra 1,500 hectares, which it then declared to be part of the National Park. These people were allegedly evicted without alternate land allocation and received no compensation. Reportedly, the Government has persistently attempted to evict Benet families living in the area, thus resulting in the eviction of February 2008.

401. The 2008 evictions allegedly occurred despite the fact that, according to a 27 October 2005 Consent Judgment and Decree of the Ugandan High Court (“Consent Judgment”), the 1,500 hectare area in question has to be withdrawn from its designation as a National Park area and the indigenous Benet inhabitants therein were entitled to stay within the area undisturbed and carry out their agricultural activities. The temporary resettlement area to which the Benet were moved is reportedly inadequate for them to sustain their traditional agricultural practices and maintain their traditional livelihoods. In some resettlement areas, Benet families are given inadequate amounts of land for subsistence; and, according to information received, in one resettlement within a privately owned area, they are not allowed to cultivate any crops and are prohibited to set up permanent housing units by both the private landowner and the Uganda Wildlife Authority.

402. According to allegations received by the Special Rapporteurs, the Uganda Wildlife Authority has been seeking payments of as much as 600,000 Uganda shillings in exchange for the Benet’s permanent resettlement outside the Mount Elgon National Park, contrary to the provisions of the Consent Judgment which allow them to live just outside of the National Park. It has also been alleged that Benet individuals are regularly threatened by the Uganda Wildlife Authority and sometimes forcibly evicted from their temporary dwellings, which has brought them constant insecurity and prevented them from conducting their traditional subsistence activities as well as deprived them of sufficient and adequate food, leading to the deaths of at least two children. The Uganda Wildlife Authority and Ugandan police frequently arrest community members, especially those involved in advocacy against forceful evictions and displacement, and that Benet community members have also been subject to alleged beatings by Uganda Wildlife Authority officials when they search for food or firewood within areas considered to be part of the National Park.

Observations of the Special Rapporteur

403. The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples notes that, in the joint communication sent to the Government of Uganda on 14 May 2009, a response from the Government within 60 days was requested. To date, there is no record of a response in the files of the Office of the High Commissioner for Human Rights.

404. Having cross-checked the information received on the situation of the Benet people in the absence of a response from the Government of Uganda, the Special Rapporteur considers it sufficiently credible to indicate a pressing problem requiring the attention of the Government and urges the Government to take corrective measures as needed. In a spirit of constructive dialogue and cooperation, the Special Rapporteur presents the following observations, which include a series of recommendations, in hopes that they assist the Government in addressing the situation of the Benet people in Eastern Uganda. As already noted, these observations and recommendations were transmitted to the Government of Uganda in a letter dated 1 April 2010.

405. The situation of the Benet people who have been resettled to allow for the establishment of the Mount Elgon National park represents a problem that is common to other indigenous peoples in Africa and beyond in relation to the establishment of national parks over indigenous lands. The African Commission on Human and Peoples’ Rights has found that the “establishment of national parks and conservation areas has led to severe dispossession of pastoralist and hunter gatherer communities across the African continent.”[90] Thus, the Special Rapporteur’s observations touch on a number of issues and questions relevant to this area of concern, including: whether and to what extent traditional territories are recognized by the State; whether indigenous peoples are consulted prior to the establishment of these parks; and whether provisions by the State for redress, compensation and general welfare for indigenous peoples who have suffered loss of and relocation from traditional territories have been adequate.

Duty to recognize and protect indigenous rights in lands and natural resources

406. Information received by the Special Rapporteur indicates that there has been no effective recognition of the Benet peoples’ land or natural resource rights before, during or after the establishment of the Mt. Elgon National Park. It is apparent that even after having been displaced to the resettlement areas, the Benet continued to experience the lack of legal certainty as to their rights to the lands they have occupied and to the natural resources they have sought to access for traditional subsistence activities. In this regard, it bears emphasizing that the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on 13 September 2007 with affirmative votes by an overwhelming majority of member States of the United Nations, states the following:

Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories, and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due, respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

407. The African Commission on Human and Peoples’ Rights has affirmed that such rights to lands and natural resources based on traditional tenure or effective possession are protected by artic1e 14 of the African Charter on Human and Peoples’ Rights, to which Uganda is a party. In a recent decision concerning the Endorois indigenous people in Kenya (dealing with similar facts of an indigenous people forcibly removed to make way for a national reserve and tourist facilities), the Commission affirmed that traditional indigenous tenure constitutes property that State parties to the Charter are bound under article 14 not only to respect but also to affirmatively protect.[91] Based on its reading of applicable international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples, the African Commission observed that indigenous peoples have the right to effective ownership of traditional lands rather than mere permissive access, since if they are limited to only access “indigenous peoples would remain vulnerable to further violations/dispossession by the State or third parties. [Thus] [o]wnership ensures that indigenous peoples can engage with the state and third parties as active stakeholders rather than as passive beneficiaries.”[92]

408. Building upon the existing jurisprudence on the subject, the Commission concluded that Article 14 of the African Charter obligates States to adhere to the following principles:

• Traditional possession of land by indigenous peoples has the equivalent effect as that of a state-granted full property title;
• Traditional possession entitles indigenous peoples to demand official recognition and registration of property title;
• The members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and
• The members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently possession is not a requisite condition for the existence of indigenous land restitution rights.[93]

409. Like other property interests, the property rights of indigenous peoples based on their traditional land and resource tenure may be subject to limitations for legitimate, non-discriminatory public purposes in accordance with law. However, as emphasized by the African Commission in the Endorois case, a much higher threshold than ordinarily required must be met, and in the most compelling of circumstances, for justifying significant limitations on the rights to lands and resources of indigenous peoples, where those rights are “associated with the most important and fundamental human rights, including the right to life, food, the right to self-determination, to shelter, and the right to exist as a peoples.”[94]

410. It does not appear that the State has adequately considered the existence or extent of the property rights that the Benet people may have on the basis of traditional tenure in the vicinity of the Mount Elgon National Park. Nor is there indication of a sufficient justification to resettle the Benet people and severely limit the property rights they may be shown to have in the area. Establishment of the park alone cannot be viewed as a sufficient justification. In this connection, an analysis of the justification of any limitation on indigenous land and resource rights must also include an analysis of the mechanisms, if any, used by a State for consulting with the affected indigenous people.

Duty to consult

411. When decisions made by the State affect indigenous peoples’ particular interests, including decisions directly affecting their rights or interests in lands upon which they rely, special, differentiated consultation procedures are necessary. This is especially so when, as appears to be the case with the Benet, they are marginalized in the political sphere such that the normal political and representative processes do not work adequately to address their particular concerns.[95] Hence, article 32 of the Declaration on the Rights of Indigenous Peoples provides that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources ...”


412. As made clear by article 19 of the Declaration, the duty of states to consult with indigenous peoples applies generally to “administrative and legislative decisions that may affect them.” The duty applies, therefore, when indigenous peoples’ material reliance on, or cultural connections to lands and natural resources are affected by the establishment of a national park or conservation area and related measures, independently of whether or not specific property rights exist. Considering the apparent lack of legal recognition of the territorial rights of the Benet, it is important to keep in mind that the duty to consult is not limited to circumstances in which a proposed measure will or may affect an already recognized right or legal entitlement in lands and resources, as explained in the Special Rapporteur’s 2009 report to the Human Rights Council.[96] Thus, the duty arises whenever their particular interests are at stake, even when those interests do not correspond to a recognized right to land or other legal entitlement.

413. Consultation processes must allow indigenous peoples the opportunity to genuinely influence the decisions that affect their interests. This requires governments to fully engage indigenous peoples in the discussions about what the outcomes of those decisions should be before they are taken. It also requires procedural safeguards to account for indigenous peoples’ own decision-making mechanisms, including relevant customs and organizational structures, and ensuring that indigenous peoples have access to all needed information and relevant expertise.

414. Furthermore, in all cases in which indigenous peoples’ particular interests are affected by a proposed measure, obtaining their consent should, in some degree, be an objective of the consultations. This principle is designed to build a dialogue in which both States and indigenous peoples are to work in good faith towards consensus and try in earnest to arrive at a mutually satisfactory agreement. The processes of consultation and consent are aimed at avoiding the imposition of the will of one party over the other, and at instead striving for mutual understanding and consensual decision-making.

415. In examining the situation of the Benet people in the Mount Elgon National Park area, the Special Rapporteur is concerned that the Benet were not adequately consulted, if at all, prior to the creation of the National Park and also that their land and resource use patterns were not adequately taken into account. In cases involving the creation of natural parks in indigenous territories, it is imperative that governments inform the indigenous peoples of the area about the intention of creating a national park and build cooperative frameworks of dialogue in accordance with the international standards outlined above. It is in this way that the legitimate State goals associated with the development of conservation areas and the rights of indigenous peoples to lands and natural resources may best be accommodated.

416. The need to consult with indigenous peoples is especially heightened when their relocation from their traditional lands is at issue, given the profound effects on them that such relocations invariably have. Because the relocation of indigenous peoples who have strong cultural and material connections to the lands from which they are removed implicates threats to a range of human rights,[97] the establishment of national parks and conservation areas should not result in the relocation of indigenous peoples as a general matter. Ways should be explored, in consultation with the indigenous peoples concerned, to develop conservations regimes without their removal. If relocation is considered an option, however, that option should only be realized with adequate mitigation measures and with the consent of the indigenous people being resettled. The Declaration on the Rights of Indigenous Peoples states in its article 10 that “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”

Need for redress and measures to provide for the welfare of indigenous peoples

417. It appears, however, that in the case of the Benet in the Mount Elgon area, involuntary resettlement and relocation have occurred on more than one occasion, without prior consultation or consent. Thus, it is necessary to ensure adequate redress for the resettlement and its ongoing effects on the Benet people. In addition to article 10 of the United Nations Declaration, which calls for just and fair compensation and the option of return in cases of relocation, article 28 of the Declaration affirms the right of indigenous peoples “to redress, which can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.” And, “Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.” Furthermore, in accordance with article 32(1), “States shall provide effective mechanisms for just and fair redress for any projects affecting their lands or resources, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.”


418. States, moreover, have the duty to provide special attention to the social and economic welfare of indigenous peoples who have been disadvantaged historically or by recent circumstances. This duty extends to ensuring adequate health, education, housing and general living conditions. In light of the allegations regarding the precarious housing and other living conditions currently experienced by the Benet, the Special Rapporteur considers steps to implement the provisions, of article 21 of the United Nations’ Declaration to be matter of urgency.

Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.


419. Related to the above concerns, the African Commission has stated that the right to development under Article 22 of the African Charter requires States to effectively involve and benefit indigenous peoples in the development process, “including in the establishment of conservation areas. In its Endorois decision, the Commission stated that Kenya’s failure to consult with and provide the Endorois with adequate compensation, benefits and suitable land for traditional subsistence, activities violated their right to development – emphasizing that a State bears the burden of creating conditions favourable to people’s development.[98] In this connection, similar obligations apply to the Government of Uganda with regards to the Benet people in the Mount Elgon National Park area, since they are entitled to similar protections under the African Charter in connection with their right to consultation, compensation, and development.


Recommendations

420. In light of the foregoing, the Special Rapporteur makes the following recommendations to the Government of Uganda regarding the situation faced by the Benet people in the Mount Elgon National Park area.

420.1. Examine the traditional or customary land tenure patterns of the Benet people in and around the Mount Elgon National Park, and provide appropriate recognition and protection of their rights to lands and natural resources, in consultation with them.

420.2. Develop and implement an effective mechanism for consulting with the Benet people affected by the establishment of the Mount Elgon National Park on the further development of the Park and on any future measures that may affect them; and refrain from any further relocation of them or other indigenous peoples without their free, prior and informed consent.

420.3. Establish a comprehensive process to provide appropriate redress and mitigation measures for Benet individuals and families that have been resettled to be designed and implemented with participation of the Benet people through their representative institutions. Consideration should be given to the return of Benet individuals and families to their original homeland areas within the Mount Elgon National Park, if they so desire, or the provision of alternate lands and monetary compensation.

420.4. In connection with this process of redress, implement a systematic action to provide for the health, housing, education and overall social and economic wellbeing of Benet individuals and families living within or outside or the Mount Elgon National Park. This systematic action should also be developed and implemented in consultation with the Benet people and through their representative institutions.

420.5. Establish a process of cooperative management for the Mount Elgon National Park with the participation of the Benet people, through their representative institutions, which respects their land and natural resource rights both within and outside the Park boundaries, and which enables them to become active participants and direct beneficiaries of this type of natural conservation activity. Special consideration should be given to the use, preservation and legal protection of the Benet people's traditional knowledge of the environment and resources in the Park.

420.6. Carry out an investigation into alleged abuses committed by agents of the police and the Uganda Wildlife Authority against members of the Benet people in the course of the resettlement process and afterwards, and ensure that sanctions are imposed against those agents responsible for human rights violations against Benet individuals and families.

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NOTES

[90] African Commission on Human and Peoples' Rights, Report of the African Commission’s Working Group of Experts on Indigenous Populations/ 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 (2005), p. 22.
[91] African Commission on Human and Peoples' Rights, 276/2003 - Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (2010) [Hereinafer “ACHPR Endorois Case”], para. 191.
[92] Ibid., para 204.
[93] Ibid., para. 209. Cf., Inter-Am. Ct,H.R, Indigenous Community of Sawhoyamaxa v. Paraguay. (Ser. C) No. 146 (2006), at para. 128 (enunciating these principles within the framework of the American Convention on Human Rights).
[94] ACHPR Endorois Case, supra, para. 212, citing Nazila Ghanea and Alexandra Xanthaki (2005) (eds “Indigenous Peoples' Right to Land and Natural Resources” in Erica-Irene Daes, Minorities, Peoples and Self-Determination, Martinus Nijhoff Publishers.
[95] See Report of the Special Rapporteur on the, situation of human rights and fundamental freedoms of indigenous people, James Anaya, A/HRCI12/34 (15 July 2009), para. 42.
[96] Ibid., para 44.
[97] See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission on Human Rights resolution 2001/65, E/CN.4/2003/90 (21 January 2003), para. 12. As stated in this report, many development projects (which include national parks) are located on indigenous traditional lands, and therefore, “it is not surprising that they should raise the issue of the rights to land, the right to prior consent about use of this land, the right to participation in decision-making process regarding the implementation of such projects, the right to share in the potential benefits and, beyond this, the right of indigenous peoples to self-determination…[The latter which is intrinsically linked to] the right to land and natural resources, the preservation of cultural identity, and the rights to language and education.”
[98] ACHPR Endorois Case, supra, para. 298.


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