The “voluntary perpetuation of cultural distinctiveness”, as well as the recognition by other groups or the state are new features. With regard to the cultural distinctiveness, it is questionable, whether this element is not already covered by the principle of self-identification. Moreover, it seems to convey an essentialist understanding of culture, which does not sufficiently acknowledge that culture is constantly changing through endogenous and exogenous influences.
While the identification as indigenous community by other communities may be a reasonable indicator for the status of a group, it can be quite problematic to give much weight to the point of view of state institutions in view of the non-recognition of indigenous rights in the majority of sub-Saharan African states. Regrettably.
The right to land
While the indigenous right to land is recognised by ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the African Charter does not explicitly contain a right to land. In the African context, the right to land has been derived in three different ways: from the right to property (Art. 14), the right to practice religion (Art. 8) and the right to culture (Art. 17) of the African Charter.
In the Endorois case, the African Commission found an infringement of the indigenous community’s right to access religious sites, which constituted a violation of the right to practice religion (Art. 8). Religious communities have the right to “worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes” (para 165). The African Court followed the African Commission’s jurisprudence emphasizing that the “practice and profession of religion are usually inextricably linked with land and the environment“(para 164).
Reading the right to land as an aspect of the right to culture is quite common in the context of minority rights and the approach has also been applied to indigenous groups. The African Commission office 365 database emphasized the intrinsic link between culture and land. Consequently, it found that the respondent’s claim that the protection of the environment constituted a public interest exception under Art. 27(2) not convincing in the Endorois case.
However, subsuming land under the right to culture and the right to religion bears dangers: it allows for easy contestations by states that argue the community has embraced another religion or culture. Moreover, religious and cultural sites can be interpreted in a geographically narrow way.
Interpreting the communal right to land as a property right could thus be a promising alternative. It is driven by the principle of non-discrimination and challenges the original, Western understanding of property. Just like the Inter-American Court of Human Rights, the African Commission takes the view that the right to property also includes “rights guaranteed by traditional custom and law to access to, and use of, land and other natural resources held under communal ownership”. It is thus not very surprising that the African Court also interpreted Art. 14 in a broad way and in light of the UNDRIP. As the expulsion happened against the Ogieks’ will, without prior consultation and without sufficient public interest, the Kenyan government violated Art. 14. Consequently, the African Court’s position is in line with the approach of the African Commission, the Inter-American Court, as well as the ILO Convention 169 and the UNDRIP.