African Land Rights Given New Life

During the colonial period in Africa, the European powers and their descendants took over what African land they wanted and thought nothing of making the former residents landless and without means of making a living. After independence, the confusing overlap of traditional land ownership and growing urban and peri-urban lands created conflict that has led to serious clashes and ongoing unrest.

In the platinum-rich Maandagshoek area of South Africa several years ago, clashes among local community people, police and mining interests erupted into violence that led to hundreds of arrests. The Government of South Africa assumed control of tribal lands in order to grant mining rights to companies whose investors included well-connected members of the ruling African National Congress. The government contended that, in an area with astronomical unemployment, hundreds of mining jobs could help the economically depressed people. However, local residents said the mines encroached on their lands without adequate compensation and without prior agreement.

Nearly 30 years ago, the Government of Kenya evicted the Endorois people from their ancestral land in the Rift Valley to create a wildlife reserve. The traditional cattle herders had no recourse, and their longstanding way of life was threatened, along with the survival of their culture. Now the Endorois, the people of Maandagshoek and many others across Africa do have recourse when governments seize their land no matter what the economic calculation.

The African Commission on Human and Peoples’ Rights, the body charged with protection of human rights, has issued a ruling that Kenya’s Endorois people, and by extension all indigenous African people, must be either consulted or adequately compensated for land the government wishes to use. In the case of the Endorois, the commission ruled that the Kenyan government must recognize their ownership of their ancestral land and make restitution.

In the last year or so, there has been an acceleration of African land sold or leased to foreigners, especially Asian and Middle Eastern interests wanting arable land on which to grow food. In too many cases, these deals push indigenous people off their land and do not provide jobs to compensate for their lost livelihoods. Supposedly, the infrastructure and share of food grown will compensate the African society at large, and even if that were truly what happens, it wouldn’t compensate the people moved off land their families have worked or on which their livestock has traditionally grazed, sometimes for centuries.

Nomadic people in Africa have long gotten the short end of land deals. Like many American Indian tribes, they didn’t consider themselves to be land owners; they merely were part of a natural system in which they used the land as necessary, when necessary. In a modern land-owning society, however, such traditions are considered obsolete. This is one of the issues plaguing the Saharawi people of Western Sahara. Not having title to land is dangerous when a nation such as neighboring Morocco is intent on making their control official.

The ruling of the commission will be an important check on what we would call eminent domain – the practice of government confiscating land for what it considers the greater good. Even in a country like the United States where due process can often check government excess in this regard, land is still sometimes taken despite the interests of those who own it or have had use of it for a long time.

This is the first time the African Charter on Human and Peoples’ Rights has been invoked to protect the rights of indigenous people. The execution of this ruling will determine if this is genuinely a new day or just another piece of paper to be ignored by governments and wealthy interests who want their own way no matter who gets hurt.