In post-colonial Africa there was a restructuring and refashioning of African Political Institutions. There was a common aspiration amongst the newly independent African states to “modernize” in a bid to join the rest of the world. The process of decolonization was a momentous progress in international law as there was the creation of satisfactory conditions to implement the conceptual integrity of sovereignty and self-determination. It should be highlighted that the discourse of international law imbibed and became the language of expressing Western rationality and thus the initial process of “homogenization” of non-western states into the “family of nations” became a process of differentiation.
There was an encouragement on contemporary African states to homogenize their socially and culturally fragmented populations. This was without due consideration to the fact that African societies were characterised by the collection of different communities co-existing together. At the time, the international discourse relating to indigenous peoples was criticised for the same. The ILO Convention 107 was under scrutiny for being “integrationist” due to its dictation and conformity with the view that indigenous people were to be integrated and assimilated. This led to the ECOSOC formation of the Working Group of Indigenous Peoples’ (WGIP), which was tasked to review developments pertaining to the human rights of indigenous populations and to give attention to the evolution of standards concerning the rights of such populations. [1]
However, despite international developments pertaining to indigenous rights, African states had different perceptions of these rights. In the national scene, there was the perceived need for internal sovereignty, which was equated to a process of incorporating and assimilating those who the colonisers had forgotten to modernize, mainly the indigenous communities. Indigenous people were then viewed as a developmental problem, leading to a focused political agenda on such groups to be integrated into the larger society. In this process, indigenous people in Africa were subjected to inhumane treatment, their lands expropriated by the successor states and genocidal practices unleashed on them.
In modern Africa today, while indigenous peoples are protected as vulnerable groups under International Law, in many African states their rights are still violated. The Ogiek landmark decision of the African Court of Human right attempted to turn this discourse, by setting precedence in its affirmation on indigenous rights. These included that they have a right to free, prior and informed consent as an exercise of their self-determination when it comes to state decisions on developments that might affected them or their lands. Previous to this, cases such as the Endorois and Ogoni decided by the African Commission, did not successfully dispute the political thinkers of post-colonial Africa. It can be concluded that despite numerous international conversations about indigenous peoples, African political thinkers are not able to understand how a small community removed from the greater population has a self-determination within a sovereign state headed by an overarching government. Moving forward the question comes to be, how can international law pertaining to indigenous people mend this loophole?
[1] ECOSOC Res. 1982/34 (1982).
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