Customary communities as 'peoples' and their customary tenure as 'culture': What we can do with the Endorois decision

 Wilmien Wicomb
 BA, BA (Hons), MA (Stellenbosch); LLB (UNISA), LLM (Human Rights and Democratisation in Africa) (Pretoria)
 Legal Resources Centre, Cape Town, South Africa
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 Henk Smith
 BA LLB (Stellenbosch), LLM (Warwick)
 Legal Resources Centre, Cape Town, South Africa
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 Edition: AHRLJ Volume 11 No 2 2011
  Pages: 422 - 446
 Citation: (2011) 2 AHRLJ 422-446
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The article is based on a paper presented at a conference entitled 'Thirty years of the African Charter on Human and Peoples' Rights: Looking forward while looking back’, hosted by the African Commission on Human and Peoples’ Rights and the Centre for Human Rights, University of Pretoria on 11 July 2011.

Summary

The peoples' rights protected in the African Charter, and in particular the right to culture, development, natural resources and the emphasis on community self-determination and self-identification, potentially provide the basis for creative jurisprudence to protect rural communities and promote their participation in decision making and benefit from the development of their land. In the Endorois decision, the African Commission could have relied on domestic African jurisprudence to give new content to the participation rights of all rural communities living under customary law, and not just those that can prove their own indigeneity. The article deals with the notion of self-defining customary communities in Africa and the jurisprudence of the South African Constitutional Court on living customary law, being varying, localised systems of law observed by numerous communities. The African Charter does not explicitly recognise customary law, but the award of title in the case of the Endorois, the evidence of customary forms of tenure and the centrality of land and associated practices in the culture of the people, amount to such recognition. The article concludes with a note on the procedural aspect of participation in decision making. The consent standard for any limitation on the right to property, culture and development reflects respect for and recognition of customary law and culture. The customary law tenure rules of communities require community permission before outsiders could use and share in the community's property and resources.

1.  Introduction

Ten years ago, Alston [1] wrote that 'there is no reason to expect that the African Charter on Human and Peoples' Rights (African Charter) will prove in the years ahead to be a force for the progressive development of peoples' rights, despite the occasional invocation of the concept for rhetorical purposes'. Two years later, the African Commission on Human and Peoples' Rights (African Commission), the institution mandated with giving content to the rights contained in the African Charter, took a bold step in proving Alston's pessimism wrong by recognising the Ogoni people of Nigeria as a 'people' in terms of the Charter and protecting their rights in this capacity. [2] This prompted Murray and Wheatley to argue that the African Commission has taken peoples' rights beyond mere 'aspirational' and 'exhortatory' tools of rhetoric, to being the subject of legal claims before the Commission. [3]

In the communication brought by the Endorois community against the Kenyan government, the African Commission found the Endorois community to constitute a 'people' and, as such, recognised the violation of its rights to property, culture, development, free disposal of resources and religion. [4]

The question we pose is whether the Endorois decision opens the door for customary communities [5] to also seek recognition of their customary rights in communal land and other resources and, importantly, whether they can use the African Charter to protect their tenure rights and enforce their right to participate in any decision involving the use of their land by mining companies and other extractive industries. We argue that this is a crucial and urgent potential role for the Charter and the Commission because few, if any, African domestic courts have protected customary tenure rights effectively. If the African Charter continues to protect the rights of individuals and indigenous communities only, the majority of the continent (living on communal land under customary law) will remain onlookers of the human rights discourse in Africa.

At this stage, a qualification is in order: We write as practitioners rather than academics, and therefore declare our interest. We are deliberately promoting a purposive interpretation of the Endorois decision that provides room for the recognition of African customary tenure rights [6] beyond the rights ascribed to indigenous peoples by certain international law instruments. [7]

We are not advocating for the re-drawing of the African map in order to recreate some pre-colonial ideal; rather, we are attempting to assert the rights of customary African communities who live on land still effectively regarded as terra nullius.

We proceed to analyse how the African Commission reached its decision to recognise the title claim of the Endorois community with particular reference to their choice of authorities and their use of international instruments and precedents relating to indigenous peoples' rights.

In the next section, we address the situation of customary communities in Africa. We briefly outline the history that has led to the current predicament of rural communities in that their customary forms of land tenure receive scant formal legal recognition in domestic African courts.

2.  Customary communities in Africa: What we do not see does not bother us

2.1  Customary law and the colonial imposition

The renowned scholar of customary law and related systems of tenure, the late Professor Okoth-Ogendo, recounted how, as the colonial era drew to a close in the 1950s and 1960s, British legal scholars organised a series of conferences to discuss the 'future' of customary law in Africa and the need to 'construct a framework for the development of legal systems in the emerging states'. [8] These initiatives assumed that the 'indigenous' legal systems of African countries and peoples of which they were well aware, were inadequate and inferior compared to the English common law.

These scholars must have felt vindicated when, upon independence, most African countries adopted the colonial legal framework wholesale – especially, as Okoth-Ogendo points out, in view of the development framework's 'general ambivalence as regards the applicability of indigenous law'. [9] Indigenous law and customary legal systems were regarded as inferior, were never extended to areas covered by colonial laws and, when applied, it was done only to the extent that they were not repugnant to Western justice and morality or inconsistent with any written law.

It is trite that the post-colonial era relegated customary law to a separate and unequal system of law that rarely found its way into the formal, 'Western' courts. In an attempt to gain some legitimacy and to give a measure of status to the separate systems, customary courts were created. Bennett argues that these courts were 'intended not only to settle disputes but also to proclaim the reach of government and the values of Western civilisation'. [10]

However, the impact on customary law systems went further. Under colonial rule, the foreign powers gradually realised that they could utilise customary institutions of governance to achieve the subjugation of local communities. Traditional leaders who were open to co-operating with the colonial powers (often for compensation) were supported: Legislation was passed to ensure that the powers of the favoured leaders were entrenched. [11] These statutes were based on a distorted colonial understanding of custom skewed to benefit colonial interests. [12] 

When these legislative frameworks were entrenched in post-independent states, the colonial distortions of customs were also entrenched. As a result, customary governance systems and community rules were overruled by statutes regulating traditional leadership and, in some cases, communal tenure.

Mnisi [13] describes two possible outcomes of the imposition of inappropriate legislation upon customary communities. On the one hand, the fixed, hierarchical system of state law that is intolerant to negotiated rules sometimes stifles communities' customary law into obscurity. On the other hand, the irreconcilability between the two systems often leads to a complete lack of local engagement with state law beyond the strictly formal, with communities choosing to ignore the state's 'rules' as far as possible. It is the latter phenomenon that is most prevalent in Africa.

As a result, not only was customary law – insofar as it was recognised – relegated to an inferior legal system in terms of the 'official' legal framework, but the imposition of inappropriate statutes upon customary communities forced most of these communities to ignore these statutes as far as possible and continue regulating their lives in terms of their custom. Customary law systems thus developed in spheres invisible to the dominant legal system, but these informal systems remained central to the lives of most of their subjects.

The post-colonial entrenchment of the colonial status quo retained this divide. Little effort was made to reinstate customary law as an equal to the imposed colonial legal framework. [14]

Towards the end of the twentieth century, many African countries adopted constitutions which in many cases recognise customary law as an equal source of law to be applied by the courts 'where appropriate'. However, the application of customary law in the formal courts remains almost exclusively limited to issues of personal law, and rights claimed by individuals.

The Food and Agriculture Organisation (FAO), [15] as other international organisations, asserts that 'protecting and enforcing the land claims of rural Africans may be best done by passing laws that elevate existing customary land claims up into nations' formal legal frameworks and make customary land rights equal in weight and validity to documented land claims.' This statement ignores the fact that these claims should, in any event, have equal weight and validity where custom is recognised as a source of law. The reason why communities are not protected, we contend, has more to do with the parallel nature of African legal systems and the inability of domestic courts to engage with customary forms of tenure. In addition, codifying customary forms of tenure in terms of common law rights will arguably once more create a parallel system with 'legal' rights on paper and unrecognised customary rights in practice. Rather, we argue, customary rights should be recognised on their own terms, and measured according to standards set by their own systems. [16]

It is trite that African customary law is a community-based system of law in which rights are generally relational and not held by individuals as atomistic beings, but as members of a group and relational to the other members. [17] To restrict the protection of customary law to individual rights, therefore, denies members of customary communities the ability to assert their tenure rights outside the sphere of their own communities and their internal, customary dispute resolution mechanisms.

Customary systems are not based strictly on rules associated with the mainstream understanding of common law. In all societies there are discrepancies between the 'rules' people describe and the actual practices in which they engage. This discrepancy is particularly pertinent with regard to customary law systems. While underlying values and commonalities can be identified in customary practices, rules are not treated as a fixed structure that regulate societal organisation with some occasional leeway for exceptions. Rather than blindly referring to rules in making a decision, the current reality of every situation is considered and the rule tested against the customary values. [18] Customary systems are thus outcomes-based rather than rule-based. Once custom is codified, it loses this ability to adapt contextually. [19]

To make matters worse, Africa has seen decades of efforts from international institutions (notably the World Bank and more recently some documents emanating from the FAO) to promote individual titling and land registries in Africa. These efforts formed an integral part of the so-called structural adjustment programmes as the World Bank recommended formal titling as a precondition for the modernisation of agriculture and promoted the abandonment of communal/collective tenure as less compatible with a market-based system. [20] As we will see, the uneven outcomes of these programmes has been the cause of an about-turn in various regional policy and soft law instruments on the continent now calling for the recognition of customary law systems of tenure.

Unfortunately, these efforts will remain of little use, we argue, if formal courts do not find a way to accommodate and adjudicate customary systems of tenure – not as versions of common law ownership, but on their own terms. [21]

In the following section, we briefly discuss why this has become an urgent challenge for the customary communities of Africa.

2.2  Customary land tenure and the problem of recognition

In a recent study by the FAO on the statutory recognition of customary land rights in Africa, Knight [22] writes:

These thousands of hectares are most likely not unoccupied, but rather land being held in terms of customary law by rural communities. These communities are unable to assert their customary tenure rights against their governments or any other external entity simply because they cannot assert their rights in courts that know, understand and apply common law ownership only. The relegation of customary law – and, as a result, customary communities – to the invisible, thus continues domestically.

The human rights discourse that first entered African domestic legal systems by way of the continent-wide ratification of the African Charter and later by its inclusion in African constitutions is only relevant where it can be applied. This is evident from the fact that the rare encounters between the rights- and custom-based discourses have largely been in personal law cases before the formal courts where in some instances rights were found to trump custom. [23]

The human rights discourse cannot reach as far as community-based rights as long as these rights never reach formal courts. For the majority of rural Africans, therefore, the African Charter, their countries' constitutions and human rights in general remain foreign concepts of a system of law parallel and irrelevant to their lives.

3.  South African Constitutional Court's engagement with customary forms of ownership

One of the few African countries where domestic courts have been forced to engage with customary forms of tenure is South Africa. In terms of section 211(3) of the South African Constitution, the courts are obliged to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law. [24] In doing so, the courts must have regard to the spirit, purport and objects of the Bill of Rights. The Constitution [25] declares that

Section 39(2) of the Constitution envisages the development of customary and common law whilst promoting the Bill of Rights. [26]

To its credit – and perhaps due to its very recent past of racial segregation and discrimination – the South African Constitutional Court has placed great emphasis on the dangers of understanding custom in terms of that which was codified by the colonial powers or, indeed understanding customary forms of tenure in terms of familiar common law principles. As a result, the court has come to distinguish between 'living' and 'official' customary law and notes that it is the former that is recognised by the Constitution rather than the statutory entrenchments of custom. [27]

Living customary law refers to customary law that is 'actually observed by the people who created it', as opposed to ''official' customary law that is the body of rules created by the state and legal profession. [28] Living customary law is a 'manifestation of customary law that is observed by rural communities, attested to by parol. Although the term 'living customary law' gives the impression of a singular, unified legal system being the referent, this term actually points to a conglomerate of varying, localised systems of law observed by numerous communities. [29] 

The seminal case with regard to customary forms of tenure is that of the Richtersveld community which reached the Constitutional Court in 2003. In recognising the aboriginal title of the Richtersveld community, the Court held that [30]

The Court bases its approach on a finding by the Supreme Court of Appeal [31] according to which the mainstay of the community's culture was its customary land tenure laws and rules. The Court then interprets the finding of the lower court in language reminiscent of the Commonwealth authorities on aboriginal title that similarly defer to the origin of the right and the regime in traditional laws, custom and culture (as discussed below).

Finally, it relies on the principle stated as early as 1922 by the Privy Council in Amodu Tijani: [32]

In its Tongoane judgment of 2010, [33] the Constitutional Court insisted on the important principle that customary law systems are not invisible, but systems of law equal to statutory and common law. The case was brought by four rural communities who challenged the Communal Land Rights Act (CLARA) of 2004, the legislation created to 'codify' communal forms of tenure in the former homelands of South Africa.

The Court held that 'the presence of living customary law as a form of regulation on the ground is not equivalent to a legal vacuum. It is rather a genuine presence that must be treated with due respect, even if it is to be interfered with.' The 'field ... not unoccupied' with 'living indigenous law as it evolved over time' includes all communal land in South Africa: [34]

If it is the case that one cannot deal with communal land without dealing with indigenous or customary law, then the only avenue for the African regional human rights system to protect the communally-held rights of peoples in Africa is through proper engagement with customary law. In the following section, we investigate the extent to which the African Charter recognises customary law before turning to the significant recent African Commission decision in the matter of the Endorois community of Kenya.

4.  African Charter and recognition of customary law

There is no explicit recognition of customary law in the African Charter. [35] However, it has been acknowledged that the Charter was designed to speak to the unique circumstances and needs of the African continent and its people. [36]

The most significant and explicit feature of the African Charter in this regard, and one that certainly seems to indicate an acknowledgment of the communal nature of rights in Africa, is the protection of the rights of 'peoples' in the Charter. [37] The interpretation of this inclusion as a nod in the direction of customary legal system is strengthened by the inclusion of duties alongside rights in the Charter. This has led some analysts to argue shortly after the adoption of the Charter that it [38]

It is perhaps not surprising, however, that these analyses were propounded at the very beginning of the African Commission's mandate of interpreting the African Charter in terms of article 45(3). Given the last 25 years of jurisprudence of the Commission, this interpretation has been eroded seriously. Not only did it take the Commission years to give content to the term 'peoples', but it has shown very little indication that it aims to protect communally-held rights. It was only in the famous SERAC decision, [39] handed down in 1996, where the Commission boldly recognised the Ogoni people – as a section of a population – as a 'people'. It has since also referred to an entire nation as well as an indigenous community as a 'people'. [40]

In this context, it is interesting to relate the comments of the Commission in the Endorois decision on its delay in giving content to the term 'peoples'. [41]

This comment seems odd and even disappointing in view of the fact that the African Charter – by the African Commission's own admission – aims to speak to the unique needs of Africa and therefore it should refrain from modelling itself on international jurisprudence exclusively. Indeed, the Commission goes on to say that [42]

If this is the case, the African Commission should be brave in giving content to these innovative provisions without impoverishing the African Charter by falling back on inappropriate international jurisprudence operating within a context where 'indigenous' or 'tribal' people are absolute minorities, recognised by international law and therefore can exist despite a measure of exclusion from the dominant legal system.

In fact, it could even be argued that the African Commission should rather rely on the jurisprudence of domestic African courts that do battle with the difficulties of uniquely African problems of legal pluralism as was shown in the previous section. As we will see, the Commission had a great opportunity to do just that in the Endorois decision, but unfortunately relied on the accepted wisdoms of other regional systems.

This development in the African Commission's jurisprudence seems out of step with the African Charter itself. Articles 60 and 61 of the Charter empowers the Commission to 'draw inspiration from international law on human rights', but in particular from 'the provisions of various African instruments on human and peoples' rights'. While the instruments referred to are not specified, the principle of resorting to African instruments in preference of international human rights instruments is clear.

Article 61, relating to subsidiary means of interpretation, reflects the emphasis on the African context even stronger. It reads: [43]

This article could be read to include both local customary law systems and African domestic jurisprudence as sources to be considered by the African Commission – especially, we would argue, when uniquely African issues are at stake.

This interpretation was supported by the Preamble to the Commission's Draft principles and guidelines to the interpretation of socio-economic rights in the Charter [44] which stated that the Commission draws 'inspiration from domestic courts within the jurisdiction of states parties to the African Charter'.

However, the same document did reveal a narrow, common law-inspired understanding of the property clause contained in the Charter. Article 14 reads: 

In its comments on the article, the draft principles and guidelines failed to even mention communal property and customary forms of tenure – despite the fact that more than 60 per cent of land in Africa is held in this way.

On other fronts, however, the tide is slowly turning. International and regional human rights institutions are increasingly moving towards the idea that proper recognition of customary law tenure systems may be a solution to Africa's problems of poverty and unequal resource distribution – and indeed to realise the right to land. An emphasis on customary principles is also found in many international, regional and sub-regional soft law documents promoting sustainability.

Significantly, in its recent Framework and Guidelines on Land Policy in Africa, the African Union Commission, the African Development Bank and the United Nations (UN) Economic Commission for Africa encouraged countries to 'acknowledge the legitimacy of indigenous land rights' and 'recognise the role of local and community-based land administration/management institutions and structures, alongside those of the state'. Unfortunately, a closer analysis of the document reveals a complete lack of understanding of what the recognition of customary law systems as equal to the state law system would entail, and rather defers to the FAO position of recognising customary tenure in common law terms.

This move towards the recognition of customary law tenure systems alongside that of Western models of private ownership is arguably also in line with the UN Committee on Economic, Social and Cultural Rights (ESCR Committee)'s longstanding emphasis on the appropriateness of measures taken to achieve the progressive realisation of rights. In their General Comment on the right to adequate housing, for example, they add: 'The way housing is constructed ... and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing'. The Committee on the Convention to Eliminate All Forms of Discrimination has declared a failure to recognise indigenous forms of land tenure as contrary to the Convention. [45] Within this context, we argue, the Endorois decision, with all its flaws and missed opportunities, can and should be seen as opening a door to the recognition of customary community-based rights of rural Africans. 

5.  Recognising the title of the Endorois community

The Endorois are a community of about 60 000 people who have lived in the Lake Bogoria area of Kenya for centuries. They claimed that they were dispossessed of their land in 1973 through the government's gazetting of the land and, as a result of not being able to access their land ever since, their rights to property and religion and, as a people, their rights to development and to freely dispose of their natural resources.

The community had no formal title to the land, but sought to prove their customary ownership in terms of the concept of 'aboriginal title'. Significantly, they argued that Kenyan law does not make provision for ownership by a community (which the Kenyan government disputed in their arguments on admissibility, but to no avail) and that the African Commission was thus the only forum where they could bring this claim as a community.

The community claimed that they had a right to property both in terms of Kenyan law and the African Charter 'which recognise indigenous peoples' property rights over their ancestral land'. [46] They argued that in cultivating the land and enjoying unchallenged rights to pasture, amongst other things, 'they exercised an indigenous form of tenure, holding the land through a collective form of ownership. Such behaviour indicated traditional African land ownership, which was rarely written down as a codification of rights or title but was, nevertheless, understood through mutual recognition and respect between landholders. [47]

To support their argument, they contended that both international and domestic courts have [48]

They cited Amodu Tijani (as the Court did in Richtersveld), the Canadian Supreme Court's decision in Calder and the Australian High Court's decision in Mabo as examples of courts recognising indigenous property rights even in the face of colonial seizure. In arguing that the rights of customary communities survived annexation, they quoted Richtersveld. [49] 

When the African Commission turns to its reasoning on the merits of the property argument, it resorts to a judgment of the European Court of Human Rights, in Dogan v Turkey, to reach a decision that registered title is not necessary for a right to property, and could include other rights and interests. [50]

In recognising the framework of communal property, they cite various cases of the Inter-American Commission on Human Rights at length (including Mayagna Awas Tingni and Saramaka). [51] These cases relate both to what was defined as 'indigenous' communities and 'tribal communities': the former consistent with the narrow definition of 'first nation' people, while the second community (in Saramaka) was in fact not indigenous to the land, but regarded as 'tribal' and therefore entitled to the protection afforded to indigenous peoples. [52] The significant point for our argument, however, is that both these definitions rely on the community sharing 'distinct social, cultural, and characteristics, including a special relationship with their ancestral territories, that require special measures under international human rights law in order to guarantee their physical and cultural survival', in the words of the Inter-American Court. [53]

The African Commission's final authority before deciding that the right to property of the Endorois community was indeed encroached upon is the UN Declaration of the Rights of Indigenous Peoples. [54]

It is difficult to understand why the African Commission completely ignored the African jurisprudence before it (both Amodu Tijani and Richtersveld). It is significant, however, as these cases dealt with communities who were not asking recognition for their system of property and governance to be treated as a 'special case' and protected from the dominant legal system by ring-fencing their rights. Rather, these communities asked for the recognition of their legal systems as equal to the dominant system – and relied on this recognition in order to gain access to the dominant legal system and assert their rights in that space. 

It may be that the African Commission feels apprehensive about 'creating' law as a quasi-judicial body without being able to call on their regional and international counterparts for authority. This is particularly disappointing and alarming, however, in the face of the Commission's mandate to give content to a uniquely African document.

A second important reason may be its fear of taking politically-contentious decisions. While the Endorois community based their claim to aboriginal title on judgments that mostly protected communities not necessarily identified as 'indigenous', the African Commission was at pains to formulate its entire analysis of the merits in terms of the rights of indigenous (or 'tribal') peoples. This may be the most disheartening aspect of the decision as it could be interpreted to narrow the protection of customary tenure rights to a handful of groups in Africa recognised as 'indigenous' or 'tribal' in the analysis of the Inter-American Court cited above – leaving half of the continent out to dry. This interpretation is supported by the opening statements of the African Commission in its merits analysis.

Before going into the substance of the claims of violations, the Commission [55] notes that 'the respondent state has requested the African Commission to determine whether the Endorois can be recognised as a 'community'/sub-tribe or clan on their own'. Instead of answering this simple question, the Commission – without explanation – changes the question to: 'Are the Endorois a distinct community? Are they indigenous peoples and thereby needing special protection?' [56] The Commission's agenda to turn the case into one about the rights of indigenous peoples only is revealed – and continued throughout the remainder of the text.

It is with little rigour that the Commission conflates the notion of 'peoples' with 'indigenous peoples' throughout the decision, moving seamlessly from speaking about 'peoples' to speaking about 'indigenous communities', thereby intimating that peoples' rights (in the context of communal tenure at least) belong to indigenous peoples only.

For example:

This conflation by the African Commission is not only dangerous in suggesting that only indigenous communities can claim aboriginal title to land, but also because it allowed the Commission to resort to the far more stringent principles of consultation and limitation of rights that international law provides to indigenous communities without reading these into the African Charter. For example, by falling back on the international law principle of free, prior, informed consent as contained in the ILO Convention 169, amongst others, when dealing with the Endorois community's right to development, the African Commission gave no further content to the Charter right for rural communities or 'peoples' who do not benefit from the international protection of indigenous peoples.

6.  Re-interpreting Endorois

Despite the insistence of the African Commission to narrow their legal interpretation of the Endorois' rights to those of indigenous peoples, there is a strong argument to suggest that the decision may still be used to enable customary communities to claim their tenure rights in terms of the African Charter.

Firstly, even despite itself, it seems, the African Commission acknowledges in the decision [57]

It could well be argued that the marginalisation of customary law systems and the inability of domestic African courts to protect customary forms of tenure – as recognised elsewhere in the Endorois decision – constitute present-day injustices and inequalities. This would extend the protection to all customary communities.

We have also raised the distinction between 'indigenous' and 'tribal' peoples that is included in the Endorois decision by way of the citation of the cases of the Inter-American Court. Whereas the interpretation of the Inter-American Court errs on the side of caution by insisting that the two categories both refer to groups who require special protection for the survival of their cultures, a re-interpretation of this distinction may well be possible.

Arguably, many customary communities will be able to identify themselves in terms of a broad reading of article 1(a) of the Convention, thereby providing them with the recognition of their customary ownership, the right to proper consultation and the right to natural resources in terms of the Convention.

In fact, many customary communities would be able to identify themselves as 'tribal peoples' or indeed as indigenous peoples on the African Commission's own analysis of the factual evidence in Endorois. Its reasoning suggests that the labels indigenous and local customary community may be used interchangeably. For example, the African Commission appears to measure the Endorois community's indigeneity to its seasonal semi-nomadic occupation of the lake shores and inland areas. However, trans-humant nomadism is but one of the characteristics of both 'indigenous' and 'local' customary communities who occupy communal land.

Finally, we argue that the connection that the African Commission makes between aboriginal rights and the right to culture provides the most important avenue for broadening the interpretation of 'peoples' to customary communities. For this argument, we turn briefly to an analysis of how the connection between these rights has been dealt with in comparative jurisprudence.

7.  Recognition of custom in terms of the right to culture

Legally and politically, the justification for the doctrine of customary or aboriginal title is the protection of culture.

We argue that in the case of indigenous (or tribal) communities the argument for the protection of their property rights is more often than not about the survival of a 'distinct' culture on land currently and or partially occupied by the group defining itself as an indigenous community with a distinct culture. It is a form of 'special' protection for a community that finds themselves outside the dominant development discourse, culturally, socially and economically and, we would add, legally. As such, this protection can only be afforded to minorities and does little to integrate these communities within the 'formal' legal systems of their countries.

In the case of communities on communal land adhering to living customary law by contrast, the argument for the recognition of their rights to property is about the recognition of informal tenure rights as cultural activities and therefore the right to culture. [58] In other words, the way in which these communities exercise their tenure rights within a communal system is an articulation of their culture – and must thus be protected simply on the basis of their right to exercise their culture. It does not matter whether the community is distinct in every way, or whether their cultural survival is linked to a specific piece of land, or whether they constitute a minority. If they can demonstrate a system of tenure, then this system constitutes a form of aboriginal title. If this title has never explicitly been extinguished by statute, then the title deserves recognition and protection based on the system being an expression of the culture of the people.

This distinction is nuanced. The African Commission missed it in its decision in Endorois. The jurisprudence with regard to aboriginal title could be read to support this assertion – but also indicates that courts have always battled to keep distinction with regard to land and culture clear.

The Canadian jurisprudence on aboriginal title is concerned with the aboriginal rights recognised under its Constitution. The Supreme Court recognises the protection of culture as the rationale behind the recognition of specific customary rights in land over which communities do not enjoy full ownership of customary title.

The link between land and culture was clearly made in Canada by the Supreme Court in R v Adams and R v Van der Peet: [59]

In Van der Peet, the Court was preoccupied with the integrality of the customary practice or cultural activity to the culture and the distinctiveness and difference of culture. [60] In the next important decision of the Canadian Supreme Court on aboriginal title, it spelt out the theoretical underpinning of the doctrine of aboriginal title in disappointingly narrow terms: [61]

The centrality of land to the culture then apparently becomes the 'rationale' – similar to definitions of indigenous peoples as related in the Endorois decision.

In Sappier, [62] the Canadian Supreme Court's more recent consideration of aboriginal rights, the Court rejected the Van der Peet articulation of the standard for aboriginal title recognition. It now states that the use of the word 'distinctive' as a qualifier is meant to incorporate an element of aboriginal specificity. However, 'distinctive' does not mean 'distinct', and the notion of aboriginality must not be reduced to 'racialised stereotypes of aboriginal peoples'. It continues: 'Flexibility is important when engaging in the Van der Peet analysis because the object is to provide cultural security and continuity for the particular aboriginal society.' [63] The essential test, however, seemingly remains that the court must also determine whether the activity claimed to be an aboriginal right is part of a practice, custom or tradition that was an integral part of the distinctive culture of the aboriginal community asserting the right prior to contact with Europeans. [64]

This interpretation that underplays the necessity of the cultural relation to land is supported by the Human Rights Committee. In Apirana Mahuika and Others v New Zealand, [65] the Committee observed that

Likewise, Australian courts have held that aboriginal title is rooted in the traditional laws and customs of aboriginal peoples. To the extent that indigenous communities have survived dispossession from their land, they possess a title to the land based on their traditional laws and customs.

Arguably, the South African courts have gone further than their international counterparts in its application of so-called 'indigenous law', culture and its relation to land. It may even be argued that the right to culture has been linked explicitly to customary land tenure and rules. The Constitutional Court in Richtersveld based its finding of aboriginal title on a finding by the Supreme Court of Appeal according to which the mainstay of the community's culture was its customary land tenure laws and rules – but not its link to a specific piece of land.

The South African Constitution, like the African Charter and the International Covenant on Civil and Political Rights (ICCPR), [66] recognises a direct right to culture. This may attract a negative and positive content. It may require the nation state to take positive measures to ensure the promotion and development of the right to culture including its attributes of developing local living law, customary title and customary rights in land. In short, the following principles emerge from this jurisprudence:

(a)    Communal ownership is associated with customary law and culture.

(b)    Customary community law is founded on the premise that it is a system of law developed by the community through practice by the community. A thorough investigation on a case-by-case basis is necessary to ascertain its content.

(c)    What matters for a community seeking protection of its communal land is that it defines itself as adhering to customary law.

(d)    The community's custom as culture may be related to a specific territory, but this is not essential (for example in the case of communities that have been removed from their land).

In Endorois, the right to culture is given limited explicit coverage. Despite this, we would argue that the right to culture is crucial to the overall approach of the African Commission.

The property and development rights asserted and recognised in Endorois are inextricably linked to the community's culture with the relevance granted to the promotion of culture in the African Commission's premises relating to the bearers of rights and victims of violations of rights. The African Commission argues that, under the African Charter, the concept community, indigenous or otherwise, recognises the links between people, their land and culture and that such a group expresses its desire to be identified as a people or have the consciousness that they are a people. It thus understands culture to mean that complex whole which (may) include a spiritual and physical association with one's ancestral land, knowledge, belief, art, law, morals, customs: the sum total of the material and spiritual activities and products of a given social group that distinguishes it from other similar groups. 

This interpretation is significant as the right to culture cannot be limited. [67] Thus, if customary forms of tenure are indeed understood to be central to a community's culture, it provides a strong argument for the recognition and protection of these land rights. [68]

8.  Consent in customary law and Endorois

A short note on consent and customary law is apposite because the consent standard for any limitation on the right to property, culture and development reflects respect for and recognition of customary law and culture. The customary law tenure rules of communities, as expected, require community permission before outsiders could use and share in the community's property and resources. [69] The scope of possible transactions with parties who are not part of or members of the community and its legal systems is restricted. The nature of aboriginal title has been found to eschew alienation of the resource. [70]

In Endorois, the African Commission set a high standard of limitation to the right to development of the community. It emphasised community equity and choice and required of the state that [71]

The African Commission found that the Endorois community suffered a 'major impact' and ruled that the procedural development right had been violated. It did not elaborate on what in general terms would constitute major as opposed to other impact. It referred to international precedent and soft law on the content of the free prior informed consent standard. We would argue that customary law also provides a sound basis for the consent requirement.

The principle and right of 'free, prior and informed consent' demands that states and institutions obtain the consent and authorisation of customary communities before adopting and implementing development projects, land use changes or new laws that may affect them. Information on the likely impact of activities must be disclosed in advance. The development process should be self-determined and any development project must respond to community concerns and prioritisation. This cannot happen without a legitimate process of participation in decision making and consent. The consent principle requires full and effective participation at every stage of any action that may affect communities directly or indirectly. Communities should be included as competent partners in projects that affect their sphere of existence and culture.

In addition to being free, prior, informed and consensual, such consent must be enduring, enforceable and meaningful. [72] In this context, meaningfulness translates into tangible recognition, in word and deed. Recognition of the rights of traditional communities over their lands as the basis for negotiations over proposed extractive industries, necessarily involves the organisation of engagement, partnership and sharing of financial benefits. In instances where communities consent to extractive activities on their land, payments or benefit-sharing arrangements should be based on annual reviews throughout the life of the activity. Incomes from any mining must cover all costs associated with closure and restoration and include sufficient funds to provide for potential future liabilities.

Where benefit-sharing arrangements are channelled through a foundation or other entity, corporations must ensure that these entitlements remain under the control of the customary community. [73] Consent is not transferable.

9.  Conclusion

We have argued that there is an urgent need for the recognition of customary forms of tenure of communities across the continent in order to allow them to have an effective 'bargaining position' when confronted with the possibility of land grabs. While we have shown that this need has similarly been identified by international organisations and the African Union itself, we argue that it cannot be done, as is often suggested, by awarding common law tenure rights to customary communities and formalising these – because common law notions are by and large incompatible with customary law forms of tenure.

The jurisprudence on aboriginal title and customary ownership, including associated jurisprudence on land-related resources such as forests and fisheries, can be depicted as a search for the current and future legal implications of

(a)    cultural activities, practices and customs;

(b)    often exercised in terms of customary law.

The different outcomes in the different jurisdictions of evaluation exercises of such activities more often than not depend on the relative weight given to customary law as opposed to common law. The African Charter and the Endorois decision may offer a new angle. The right to culture and the promotion of cultural rights apply equally to indigenous and other communities who use communal land under customary law. It requires that the relevance of cultural activities in recognising land and tenure rights be considered in terms of and through the lens of living customary law.

This potential will only be unlocked, however, if the African Commission (and even domestic African courts) recognises customary communities as 'peoples' whose rights to development and resources deserve protection. While we are critical of the Commission's deference to international jurisprudence despite relevant African jurisprudence argued before them, we argue that the African Commission's reasoning still resonates with the understanding of aboriginal title developed in the South African Constitutional Court and other foreign and international jurisdictions. We submit that the right to culture as protected in the African Charter (devoid of a claw-back clause) provides the basis for an interpretation of the protection of custom as culture. As the South African courts have recognised, customary land holding is often the central expression of a community's culture. In keeping with this argument, there is no need to resort to a definition of indigenous peoples and evaluate communities in terms of their aboriginality or indigeneity in order to protect the land rights of a community.

This will require a brave leap by the African Commission which may have risky political consequences. However, if we fail to provide this protection to the customary communities of Africa, it becomes difficult to argue that the African Charter is indeed an instrument for the protection of the continent's peoples.