Wsf 2007 Africa Territories Report

African Alliance on Community Territorial Rights Focus on Land Rights and Poverty alleviation strategies in Rural Africa

A view from Giitune Forest overlooking the community land, Meru Kenya Photo Peter Kuria SHALIN Suomi ry Mii ry Porini Association African Biodiversity Network Gaia Foundation WIMSA HUGAFO//IPACC

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

This project was supported by funds from the Finnish Foreign Ministry (FORMIN) Counterpart Funding was from Gaia Foundation and ABN

Marching for HIV/AIDS during the WSF 2007 Nairobi. Their message "Another World without Aids is Possible" Photo P Kuria

SHALIN Suomi ry Pohjavedenkuja 5 C 44 00980 Helsinki +(358) 40 768 3440 Finland [email protected]

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

ACRONYM AND ABBREVIATIONS (ACHPR) (ABN) (CEMIRIDE) (CERD) (CNOOC) (CEDA) (CEPSA) DfID (FAO) (FDI) (FORMIN) (FTAA) (HUGAFO) (HRC) (IBEAC) (ICCPR) (ILO) (IMF) (IPACC) (MDGs) (MEG) (MOSOP) (N.A.F.C.O) (NNPC) (PSRC) (SPDC) (SAP) (UNESCO) (UNEP) (WIMSA) (WSF) (WTO)

Africa Commission of Human and People’s Rights African Biodiversity Network The Centre for Minority Rights Development Committee for Eradication of Racial Discrimination China National Offshore Oil Company Ltd Community Empowerment and Development Association Compania Espanola de Petrolas of Spain Department for International Development, UK Food and Agricultural Programme Foreign Direct Investment Foreign Affairs Ministry - Finland Free Trade Areas of the Americas Hunter Gatherer Forum Human Rights Committee Imperial British East African Company International Covenant on Civil and Political Rights International Labour Organization The International Monetary Fund Indigenous Peoples of Africa Coordinating Committee Millennium Development Goals Metal Economic Group Movement of the Survival of Ogoni People National Agricultural and Food Cooperation Nigerian National Petroleum Company Parastatal Sector Reform Commission Shell Petroleum Development Corporation Structural Adjustment Programmes United Nations Educations Social and Cultural Organisation United Nation Environmental Programme Working Group of Indigenous Minorities in Southern Africa World Social Forum World Trade Organization

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

Introductory summary overview The report is in two parts, part one comprises of the group reports that were compiled by Porini (ABN), HUGAFO and by WIMSA reflecting on their participation at the WSF and a synthesis report on the Pre-WSF. The second part is the appendix to the report, with detailed reports, abstracts and supporting documents to the report. In summary, the support from FORMIN through the joint application between SHALIN ry and Mii ry facilitated the participation of three different African groups to the WSF 2007 in Nairobi. The feedback was positive and the groups’ declared short-term objectives were met. The support from FORMIN played a very significant role in the deliberation of a report “A new scramble for Africa’s remaining collective territories: the trends, tensions and challenges”. This report had been commissioned by ABN as part of its preparation for the WSF. The report explores the historical dimension to land, the conceptual view, contextual rights and the responsibilities of African communities and their relationship with their environment. The report, which is work in progress, concludes that the current approaches to the definition of land, natural resources plus the structure of policies that govern land need a complete overhaul and reformulation to accord community’s real rights to their territories. These rights must not be “inferior” to the rights accorded to private landowners or commercial concerns. There is also a need for governments to overhaul the current legislations pertaining to land. The existing systems fail to comprehensively protect rural communities and to uphold their rights. This translates to the majority of African population being left vulnerable to economic policies, which end up opening their lands and territories to outsider interests and speculators in the name of Delegates arrive at Kasarani for the 7th Edition of the World development. A new approach to the land and Social Forum, Nairobi, 2007 territory question that integrates traditional Photo: Peter Kuria (cultural) worldview into the current legal and constitutional frameworks is the best way to dealing with poverty comprehensively and at the same time ensures the integrity of our ecosystems, promotes the biodiversity of the natural systems. A second report “ Kaya Forests: A case study of collective rights over territory in the coastal Kenya”, highlights how different pieces of legislations create contradictions in the approach to sustainable development and utilization of natural resources. The dominant view has been for new legislations to remove the management and rights of important resources such as “shrines” and biodiversity hotspots from the real custodians and placing them under institutionalized frameworks. The mainstreaming of such culturally, spiritually, and sensitive resources within the economic and market framework might have some economic gains on the short term but this might also have some major social, environmental and cultural implications in the future. The approach is also adding to the undermining and destruction of proven systems of governance and management and introducing new paradigms that have in some cases been proven to be destructive and contributing to entrenching of poverty to the masses.

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

WIMSA (Working Group of Indigenous Minorities in Southern Africa) participation is summed up by Victoria Haresebs comments, their participation was a great opportunity for networking, “I am happy to hear stories of survival, hope and recovery from Africa.” According to HUGAFO/IPACC (Hunter Gatherer Forum) the WSF forum appeared to be only NGO’s talking to each other, however, it was a good forum to highlight issues that are important for the indigenous/minority communities. In the future, to avoid the risk of community groups being swallowed by the different agendas and sheer numbers, they need to be better organized. Strategically, the conceptual importance and significance of the WSF process cannot be underplayed; it is unique in its own space. However, there is a need to emphasize what and who the WSF serves best. While the forum can claim to be the best or the only avenue to champion the cause for the marginalized majority, it is not the marginalized who will be airing their concerns at the WSF platform, but proxy bodies who are a construct of the donor-recipient structure that has evolved over the last 50 years or so. If WSF is to wean itself out of this framework an be a true representative of the declared constituents, then it needs to move deeper into peoples movements who currently represent a minority in the WSF organized events. The current framework is set to evolve into a bureaucracy, which will be wheeled by flamboyant activists and anchored by international NGOs and thus remain a domain of those who have connections with the globalised world and those who share a common currency in the language of development and activism. In this regard, the funding agencies need to evaluate their level of engagement and support plus the efficiency of their funds. It would make more strategic sense at one level to support in country social movements on a more regular basis as opposed to the grand event. The grand event should only come in as a demand from the local movements. In this way, the local context of issues is digested and represented at the international level in a coherent manner, rather than the local context becoming diluted by the competing alliances. At the organizational and country level, the WSF in Nairobi failed to coalesce the voice of the amorphous society and the dis-empowered. It also failed to influence the politics of Kenya and was instead influenced by the Kenya politics. The activities on the other hand were restricted to formal and institutionalized civil social structures and within the framework of the global development speak. The use of the international “intellectual language of development” ensured that sessions that were discussing issues that were fundamentally linked to that other world were “inaccessible to the masses”. In this regard, the NGO world can be said to have hijacked its own platform for communicating the issues of the afflicted masses. A lot of goodwill and energy has gone into actualizing this global process that culminates in the event like the WSF Nairobi 2007. Without donor support, the forum would not happen, at least not on the international scale. However, there is an urgent need to examine how the different donors support the various players in the process and movement. From a casual observation, in Nairobi, quite a number of NGOs had multiple funding from different donors. This presents a risk of double financing from limited resources of specific groups, which might not translate to double participation. A transparent system of funding might allow the resources to reach more participants (grass roots) or support other pressing development concerns. If the WSF or any other such global occurrence is to retain its credibility and attain a high moral ground, a mechanism of coordinated funding must be established which will seek to streamline the funds allocation and improve on the efficiencies. Finally, everyone agrees that there is a need for dreams, and for those dreams to be realized, it is also important that a contextually new world emerges based on our understanding of our history and our vision for the future, and this new world which might be a little difficult to see was on display in slogans and placards that characterized the Nairobi WSF 2007. Thank you for the support. (SHALIN Suomi ry) 5

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

Part One........................................................................................................................................................... ..........7 1.0 The Pre-WSF meeting at Giitune Forest (Meru) January 2007.........................................................................7 2.0 African Biodiversity Network experience at the Nairobi WSF 2007 .............................................................11 3.0 The HUGAFO experience at the WSF 2007......................................................................................... ...........15 3.7 Yiaku Peoples experience of participation at the WSF ........................................................................... ........18 4.0 Report on the WSF 2007 by WIMSA .................................................................................. ...........................20 Part Two............................................................................................................................................... ...................22 5.0 A new scramble for Africa’s remaining collective territories: The trends, tensions and challenges .............23 Conclusion.......................................................................................................................................................... .....61 6.0 A case study of collective rights over territory in the coastal Kenya .............................................................65 7.0 Africa’s Wealth of Seed Diversity and Farmer Knowledge – Under threat from the Gates/ Rockefeller “Green Revolution” initiative............................................................................................................. ....................70 8.0 A Call for Building Alliances......................................................................................................... .................74 9.0 Participants at the Pre-WSF 2007 ............................................................................................................ ........75

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

Part One 1.0 The Pre-WSF meeting at Giitune Forest (Meru) January 2007 By Mumbi Murage and Tetu Maingi The African Biodiversity Network pre-Wsf meeting at Giitune forest aimed at critically looking into issues related to privatization of land around Africa. Of particular concern to ABN and its partners, is the fragmentation and titling of land, all in the name of poverty alleviation/reduction. And while the strategies have not yielded much in reducing or alleviating poverty- the gap between the poor and the rich has continued to grow- local communities have disintegrated and their cultures destroyed in the process. Huge chunks of land have been privatized and landed in the hands of a few rich individuals and companies whose sole purpose is to produce for foreign markets, with little or no regard to the communities who previously owned the land. The complexity of land issues in Africa and the controversy surrounding land policies in most African countries have not helped much in the case of most indigenous and usually marginalized communities in the continent. It is against such a hazy backdrop that the participants hoped to gain an overview of trends and responses to privatization of land in Africa, share information and experiences and develop common and specific strategies to address the issue. The presentations drew a clear picture of how post independence trends on land ownership and management have contributed towards the death of communal/collective land holding. Further discussions by the participants helped to cement the presentations. From Adam’s presentation of the main research findings, it is evident that the second scramble for Africa is on. Lots of foreign investors and companies, with their eyes on African resources have fronted camouflaged proposals and An Ethiopian farmer campaigns against GMO at the WSF 2007, Nairobi efforts to hoodwink Africans to actually believe that such Photo Peter Kuria processes were meant to alleviate poverty from the continent while in the real sense, the forces behind such machinations are just out to ensure their political and economical well-being. Apart from the usual culprits such as the World Bank, IMF, WTO and other multinationals, several sectors in our own economies have were also identified as key players in the violation of territorial/communal rights. The research identified tourism/ecotourism as a great threat to communal land holding. The earmarking of some area by the players in the tourism industry as touristic sites and destinations for tourists has seen the communities living in or around such areas being forced to give up their land to be ‘developed’ for such purposes. Areas that were previously of great cultural and historical significance to the communities have been given to investors for development and have been opened up to tourists. Apart from the alienation of the land from the community, the ecosystem is further endangered by the development activities.

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

Closely related to the issue of tourism is that of mining. The current standoff between the Kenyan government, the titanium mining company and the community in Kwale district leaves no doubt as far as the state and private companies collude to rip off communities of their rights. The locals have been offered a small mount of money or other pieces of land in other areas that are barely arable/ productive as compensation for their land to allow for the mining of the mineral. Apart from the disintegration of such a community once they are relocated, their attachment to their ancestral land is also lost. The actual damage done by the mining companies on the land under the pretext of ‘sustainable mining’ is in most Dr M'rimberia Mwongo, a traditional leader and herbalist explains the link between biodiversity, culture and human health cases irreparable. Similarly, the Photo Peter Kuria state has again wielded its power through asset of oppressive laws to acquire land for ‘agricultural development’. Production on such farms is usually capital intensive and targets foreign markets. With the rising of new economic trends and the advancement of such concepts as ‘fair trade’ with both the East and the West, signing of more Economic Partnership Agreements is likely to see an aggravation of the land privatization issue. While many communities are struggling to re-awaken the old African self, complete with African worldviews, systems of governance and spirituality, has not been without some hiccups. Notably, the language used in the struggle is usually foreign which by no means supports the journey back to our roots. Concepts related development, poverty and such issues are coined and expressed using a foreign language. Such a language is one that cannot describe our attachment/intimacy to land nor effectively address issues relating to land. Transmission of our indigenous knowledge has been disrupted and the need to understand in our own language, to be seen from our own eyes has not been addressed. According to the research, about 65% of the land in Kenya is in private land, usually in form of ranches or plantations. In addition, most community land has been placed under the trusteeship of local authorities. This leaves the communities in a vulnerable position as the civic bodies take an upper hand in the management of the land/resources. At the same time, the state is also in a position to repossess the land at a whim and to sell it or lease it out without consultations with the community. Contradictions within our laws have not helped matters either. For instance, while the Forests Act was observed asfriendly and beneficial to the communities, the Heritage Bill has been criticized as too harsh and stifling to the struggles of the local people in as far as management of their resources and heritage is concerned. Bakari’s presentation outlined land issues in Ghana from the pre-colonial times, through colonization and into the post-colonial era. It is a journey from a point when all the land was owned by the communities to a point when all the land was declared crown land. Efforts by the Aboriginal rights movements saw the crown land withdrawn but a later ordinance allowed the government to acquire land for development. A dual land system exists in Ghana whereby all the land is either a state land or communal land. Under the state land, the state may actually own the land or hold it in trust for the community while under the customary system, land is owned by 8

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

all under collective authority. Today about 10% of the land in Ghana is held by the state and the mushrooming of cocoa and palm oil plantations has accelerated privatization of land, leaving little room for communal land. To make it worse, World Bank has funded a land administration project to encourage the registration o individual rights and individual ownership of land. Although the current constitution has tried to put checks on the government’s acquisition of land and putting strict restrictions on adequate, prompt and fair compensation of land, an ideal situation for communal ownership of land has not been achieved. DfID is also running a project to enhance the performance of customary landowners and reaffirming customary systems of land ownership. Mohamed’s presentation further reveals the use of state power and oppressive laws in acquisition and privatization of communal land. Thousands of hectares of land in the arable and highly productive Ethiopian Highlands is currently under sugar and cotton plantations. The social organization of the pastoralists has been disrupted as the rush for the privatization and individual ownership of land picks up. Although the country can boast of having not been colonized, its constitutions and the systems of power are not seen to be emerging from a traditional Ethiopian setting. Mohamed identifies poor legal and policy frameworks as the main factors in fragmentation and privatization of land in Ethiopia. The Ethiopian government predominantly comprises mostly of highlanders allowing minimal representation of the pastoralists who live in the lowlands. At the same time, the country had had four constitutions since 1931, most of which have not favored communal land ownership. The 1931 constitution saw the invasion of pastoralists’ land after it was declared no man’s land by the constitution. The fact that the land was unregistered made it easy for Mohamed from a pastoralist tribe in Ethiopia identifies poor legal and policy the individuals to register the land frameworks as the main factors in fragmentation of land in Ethiopia. Photo Peter Kuria as their own. In 1994, a constitution was adopted that recognized traditional communities’ land rights. This was however quickly reverted in the 2005 constitution which declared that there was no more communal land in the country. Kariuki’s presentation on the Kaya Forests at the Kenyan coast clearly outlines the communal/territorial rights of the communities living along the coast and the eventual loss of the rights due to a number of factors. The Kayas were previously managed and preserved under the local indigenous land tenure system. Currently, the management of the Kaya forests is under the local county councils. This has opened doors for some civic leaders to misuse their powers to make unilateral decisions, to hive off, degazette and sell some parts of the Kayas without consulting the community. Agricultural extension and private property development have been highlighted as major threats to the Kayas in the reports. The location of the Kayas in an area with such high mining prospects and tourism development also makes them vulnerable to exploitation. (Details of this presentation can be seen in the attached paper on Kaya forest: A case study of Collective rights over territory in the coastal Kenya”.

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

In the face of such threats to these forests which are of great historical and cultural importance to the local communities, then the future of the culture of these people stands threatened too. Their secrets have been exposed and their livelihood options destroyed. The communal resources they previously shared at the forests are now at the disposal of other forces with little concern for the community. Apart from the presentations, Wanjiku’s journey back through previous forums emphasized the need for a common voice in the push for collective rights. This calls for joint efforts in streamlining our thoughts to design a strategy to defend communal rights and express it in an understandable language. The discussions elicited passionate among the participants. The elders were particularly concerned that land has continued to be alienated from the communities day by day. Territories are gradually being replaced by the individual pieces of land which are open to selling/leasing out thereby destroying the social organization of such a community. Through stories and proverbs, the elders steered the discussions to underpin the need to religiously defend communal/territorial rights. Clearly, deskilling of indigenous communities through western based systems of has greatly affected their livelihood options. As one elder put it, ‘We produce what we do not eat and eat what we do not produce.’ Our resources have been taken away and we are reduced to buying what we could initially produce for our markets. At the same time we have lost what is indigenously ours and taken what is foreign. Our traditional seeds are now lost we buy genetically modified ones advanced to us from the west. Basically, what emerges here is the need for an understanding that a community and its land are inseparable, land cannot/should not be taken away from us and it is intergenerational. This was to be part of what was to be taken to the World Social Forum. At the end of the day, the meeting laid a deep emphasis on the well being of society as whole as opposed to individualism. While thinking about forging a front to defend communal territorial rights-such as an African Alliance on Land- it is important all to remember that each individual is an organ of the society and as such bears a duty towards it. Each person bears a responsibility towards the available inter/intercommunity unifying factors/common resources bearing in mind that land is the most important unifying factor. It therefore emerged that there is the need to structure a platform based on our indigenous knowledge to fight for communal territorial rights. This meeting was also the product of the revised version of the document attached herein “A new Scramble for Africa’s remaining collective territories: the trends, tensions and challenges”. The research had being commissioned by Africa Biodiversity network three months earlier and was a key element of discussions during one of the Workshops in WSF.

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

2.0 African Biodiversity Network experience at the Nairobi WSF 2007 The 7th edition of the World Social Forum brought activists, social movements, networks, and coalitions from all the continents in the world. This was the first time it was being held in Africa. Pivoted on the clarion call of Another World is Possible and the theme of Peoples struggles Peoples alternatives, the WSF had top on the agenda, issues related to Social justice, international solidarity, gender equality, HIV, peace, and defense of the environment. The ABN and several of its partner (member) organizations attended the WSF in Nairobi in January 2007, with the following specific intentions: To link and raise awareness about core ABN issues - Seed Diversity, Genetic Engineering (GE), Cultural Biodiversity (CB) and Community Ecological Governance (CEG); And to highlight topical emerging threats to the African continent - such as the threat to indigenous Land Rights from privatization trends, and the new Gates/ Rockefeller “Alliance for a Green Revolution in Africa” (AGRA) initiative. Participating in the WSF was an important opportunity for the ABN to link with other African and international organizations, network, raise its profile, and to raise African issues from an African, indigenous perspective. The ABN thematic co-coordinators for CB, CEG and GE & Seed all participated. Other ABN partners present were Porini Trust (Kenya), Melca (Ethiopia), PELUM-Kenya, Centre for Development Initiatives (Uganda), RAINS (Ghana), Institute of Sustainable Development (Ethiopia) and the Gaia Foundation (UK). Also present were representatives from WIMSA an organization from Namibia championing the rights of the San people. An ABN/Porini stand was hosted by Porini Trust, as an opportunity for ABN to showcase and explain the ABN’s CB and CEG methodologies, and the importance of elders and intergenerational learning in regaining traditional ecological knowledge, culture and biodiversity. It was also a space to share information on GE and Seed issues, to raise the issue of the Privatization threat to land rights, and The ABN stand at the WSF 2007 Nairobi to collect signatures from African organizations for the statement against the Gates/Rockefeller AGRA initiative.

Photo Peter Kuria

The stall was well attended by visitors, who recognized the need for an indigenous African network that deals holistically with issues of environment, culture, traditional knowledge, food security, biodiversity and threats from Western development. In fact, the ABN stood out among the other organizations present as having a truly indigenous and yet innovative and pioneering ethos and approach.

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

The week long event was quite demanding as people shared experiences and stories of struggles and aspirations for a more equitable world. The group took part in four interesting events under the auspices of African Biodiversity network. The events were: “A New Green Revolution for Africa? A Warning from India with Dr Vandana Shiva” was held on the 21st January. This event was extremely well attended, with over 200 people packed into the space. Dr Shiva related the new threat from the Bill Gates/ Rockefeller Foundation AGRA initiative, and explained why a push for a chemical and hybrid-dependent, high-input, intensive and expensive agriculture would in fact threaten Africa’s food security and farmers. Outlining how the Green Revolution in India has led to increased hunger, farmer suicides, destroyed the environment and opened the door to even more harmful GM crops, Dr Shiva emphasized the important lessons that Africa must learn from India’s experience. The AGRA initiative poses a threat to the real solutions for food sovereignty, which are to be found in Africa’s own wealth of seed diversity and biodiversity-based agricultural knowledge systems. Dr Vandana concluded by giving a challenge to Africa to choose the path they would like to follow- to produce their food in a more healthy indigenous way or to choose the seeds of death. ABN’s GE & Seed thematic co-ordinator, together with four Ethiopian farmers, presented the positive alternatives for food security. Demonstrating an enormous variety of indigenous seeds, the farmers spoke of how shifting to organic farming methods and growing a diversity of seeds had improved their livelihoods, environment and hopes for the future. Building a Movement for Seed Diverse and GE Free Zones in Africa” was held the following day, on the 22nd January. Vandana Shiva joined a panel of ABN partners, who talked about the importance of Seed Diversity, the threats from GMOs, the need to establish Zones as a protective measure and political message, and the experience of developing GE-Free zones in other countries. Ethiopian farmers in Gambella region also shared their experience on how they have succeeded in creating Seed and free Zones by their own and how government authorities have recognized and respected the initiative. The farmers pressed the point that Africa has the capacity to say no to GMOs and still remain food secure. A lively discussion followed, with good participation from the audience, who were invited to explore the option of Seed Diverse and GE-Free Zones in their own African countries. First steps were agreed, which were to identify local areas as possibilities; and contact information was shared between those that wished to keep in touch and build a movement. “Towards an African Communal Land Rights Alliance: recognizing Africa’s traditional territorial relationship between land and people” was held on the 23rd January. The talk presented the findings of a report done by ABN and the Centre for Minority Rights Development (CEMIRIDE) that looked at the effect that emerging trend of privatization of land in Africa is having on critical ecological systems, livelihoods and the cultural heritage of rural communities. The forum also integrated in its discussions the recommendations, which emerged fro the Pre- WSF meeting, held between 16th and 18th of January in Meru Kenya still on the same subject. Elders from four communities that Porini is working with gave a testimony on the relationship between indigenous communities and their territories, and the meaning and importance of land to them and the challenges facing them. The workshop was attended by representatives from across the globe with a total of 104 participants. The discussion brought solid comments from the participants and it was clear how indigenous communities are attached to their territories. Towards the end of the talk it was agreed upon on the formation of a global land alliance on territorial and land rights. Culture and biodiversity – This was held on 23rd January. In this forum four elders from the communities Porini is working with and a panel drawn from ABN partners had an opportunity of detailing to the world the links between culture and biodiversity. They narrated how through use of culture they have since time immemorial being able to maintain a balance in their immediate ecosystems. They lamented about the modern western industrialization and the evils emanating from 12

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

the forces of globalization, capitalism and modern religion, which are purely extractive and thus a threat to conservation of Mother Nature. Through their discussion they were able to get in a partnership with the indigenous people of India and a loose coalition of Kenya India Indigenous Peoples Association (KIIPA) was formed. The central communication office will be Porini association, Kenya. This was a milestone for the two countries. Towards the end of the WSF, ABN wrote and circulated a statement from African Civil Society “Africa’s Wealth of Seed Diversity and Farmer Knowledge – Under threat from the Gates/ Rockefeller ‘Green Revolution’ initiative.” This was signed by 70 civil society organizations from 12 African countries – in just one afternoon. The letter was circulated internationally through email networks and posted on several websites, and has become a focal point to raise awareness and build alliances to oppose these developments. The statement was reported on in the Kenyan press and the WSF daily paper. As a result of ABN’s initiative and networking at the WSF, a new loose coalition is emerging in Kenya, which plans to use AGRA’s intentions to set up headquarters in Nairobi as a focal point for opposition. ABN’s collaboration with Dag Hammarskjold Foundation (Sweden) to bring over Dr Vandana Shiva and coordinate her schedule enabled Dr Shiva’s message about the AGRA initiative and GM crops, to reach huge numbers. Dr Shiva was able to contribute to several events (including 2 for Dag Hammarskjold Foundation, 2 for ABN and 1 for PELUM) and spoke passionately and articulately about this emerging threat to packed audiences, as well as giving media interviews. The support offered by FORMIN, Finland though SHALIN ry , Finland is also appreciated This enabled participation of 22 individuals drawn from members of ABN. This enabled their voices to be heard and merging their experiences with the rest of the world. ABN’s participation at the WSF was noted as filling an important gap at these international events, particularly one held in Africa. One observer noted that ABN was the only organization genuinely reflecting indigenous views, particularly on land issues. ABN’s articulation of this voice and these concerns was appreciated by those attending, and had a significant impact in bringing these issues and perspectives to the African and international civil society fora. Conclusively, the forum was a wonderful experience as the Northern and the Southern countries stood and mingled in solidarity and in serious discussions and dialogues on how to face the world’s serious problems Delegates from across the world attend the ABN session on culture and biodiversity. Photo Peter Kuria such as global warming negative effects of globalization, modern education, religion and capitalism.

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

In general the World Social Forum was a good avenue of show casing the work PORINI and other ABN partners are doing. A number of donor organizations and academic institutions have shown a lot of interest in our programs and we have received a number of them in our Porini office. It was worth for Porini and ABN partners to have attended this forum. But a general observation to make is that the WSF Secretariat needs to critically evaluate their guiding principles and the activities on the ground and the general mode of organization. For one the general co-ordination of the activity was poor from the beginning and delegates were kept hanging unaware of the program from the start of the forum. There were no clear modalities of registration for both individuals, organizations and activities- what could actually be seen was a chaotic world. It was also ironical to see the elements of capitalism and globalization deeply entrenched in the forum as multinational organizations squeezed the little from the poor who had convened in Kasarani for WSF. Closing with a remark from one of the visitors to the ABN/ Porini stand, “Treat the Earth well she will smile at you, otherwise she will frown”, lets therefore make a commitment to keep Mother Earth smiling for our survivor and that of other species.

Elders in the ABN delegation and from different Kenyan tribes are engaged in a traditional prayer before the start of a session at the WSF 2007 Nairobi. Photo P Kuria

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

3.0 The HUGAFO experience at the WSF 2007 By Paul Kanyinke Sena and Jennifer Koinante 3.1 Introduction The 7th World Social Forum was hosted in Africa for the first time in January, 2007 in Nairobi. Community member organizations of the Hunter Gatherer Forum (HUGAFO) felt the need to participate, share and learn from similar groups at the forum. Their preparations for effective participation at the forum were made possible through the generous support of Siemenpuu through IPACC. The preparations included a series of strategic meetings and the establishment of website (www.hugafo.org) among other activities. With a pressing need to actually participate at the forum, HUGAFO visited Finland and requested Shalin ry to assist them in seeking for Financial support from the FORMIN. There was a funding commitment of Euro 4 600 to enable 25 HUGAFO representatives from the Ogiek and Yiaku communities to participate at the forum. Of the 25 representatives, 10 were to be from the Ogiek community while 15 were to be from the Yiaku community. The participants were pre-selected. The Euro 4600 was to be available on a reimbursement basis and was to cover transport, accommodation and a daily subsistence allowance for the 25 representatives. 3.2 Goals HUGAFO was of the view that the forum will be an ideal and unique opportunity to bring their issues to a national, regional and global level. HUGAFO and other indigenous networks would immensely benefit by interactions with the colossal number of expected participants at the forum. At a board meeting in Nakuru – Kenya on 2nd of September 2006, it was resolved that: 3

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HUGAFO will benefit immensely through its participation in the following: 1.

Cultural events to be staged at the Kasarani Stadium. The forum wished to pitch tent in the stadium where it will showcase the rich cultural diversity among the hunter gatherers from Kenya including the Sengwer, Ogiek, Elmolo, Malakote, Aweer, Yiaku and Waata.

2.

There will be side events for hunter gatherers at the Kenyatta International Conference Centre (KICC) or any other venue where presentations of keynote papers on HG’s, video shows, display of pamphlets, brochures, and launching of a website.

3.

Cultural ambassadors from hunter gatherer communities were also to grace events from the opening ceremony, meetings and other events at the forum.

4.

HUGAFO was also to secure entry into the official catalogue of the WSF to arouse interest in prospective participants

The forum will identify a “Torch bearer” to speak on the issues and champion the HG agenda in the forum, especially during the parallel sessions.

3.3 The Forum HUGAFO as a unit had no event that they had organized on their own. This was largely because of lack of resources to organize an activity or hire space at the forum’s venue or at any other alternative place in Nairobi. 15

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

HUGAFO’s participation was uncertain until the last minute when it managed to secure resources to bring participants to Nairobi. Consequently, their registration was done hastily at the last minute. For this reason, we were also unable to organize video shows and any side events. However, we manage a website (www.hugafo.org) where we covered our participation at the WSF. Though this was not formally launched at the forum as initially intended, the forum was a good opportunity to tell people about it. Our actual participation at the forum was therefore restricted to events organized by other organizations. Our focus was on discussions on land rights, forestry issues, water and other natural resources. Some of our participants also actively participated in human rights discussions. Organizations with which we collaborated included the Friends of the Earth International, The Global Forest Coalition, The World Rain Forest Movement, Indigenous Information Networks, African Biodiversity Network, Norwegian Church Aid, Caritas, Ms Kenya and many others. The Yiaku community was hosted space wise at the venue by Ms-Kenya, a Danish organization. On top of displaying posters that highlighted their issues, the community also managed to present a traditional dance. On their part, Ogiek representatives addressed various forums that touched on natural resources, land rights, forestry issues and human rights in general. They were also involved in intellectual property rights discussions with special emphasis on highlighting intellectual property rights developments in Kenya. 3.4 Challenges HUGAFO experienced the following challenges:Lack resources before hand to enable good organization for effective participation. High prices for space, accommodation and foods at the forum. Unclear purpose of the forum due to the variety of issues that were being discussed and presented. This was the first WSF that most of the HUGAFO representatives had participated in. Conflicting standpoints on issues by the different organizations present at the forum. 3.5 Outcomes For HUGAFO the WSF brought the following blessings:Increased visibility for HUGAFO at the National, Regional and International levels. Strengthening of and establishment of new partnerships all levels including a visit by several partners/activist to the Ogiek and Yiaku community areas immediately before and after the forum. Increased understanding issues from a global perspective. Establishment of a website (www.hugafo.org) that will be used by the organization even after the WSF and is updatable on a daily basis for the next one year. Deputing of an HUGAFO representative, Kanyinke Sena to be the East African Focal Point, Global Caucus on Community Forest Management. Increased awareness of the purpose, nature and organization of the WSF. 3.6 Critical analysis

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The WSF 2007 was a unique opportunity for HUGAFO to discuss their issues with a diverse forum. HUGAFO had come to it with a set of objectives as previously outlined. We are of the opinion that despite the challenges, we were able to meet these objectives. Further, though the forum appeared to be only NGO’s talking to each other, massive coverage by the local and international media took the issues under discussion to governments and the general public. In Kenya, the government allowing such a forum to take place in its backyard was in itself unprecedented political goodwill and increased democratic space for activist and the general Kenyan population. The WSF also generated at has increased interest of the general public in diverse issues. This is attributable to public curiosity being piqued by the large number of participants at the forum. HUGAFO is of the opinion that the WSF is a good forum to highlight issues for indigenous/minority community issues. However, to avoid the risk of these communities being swallowed by the different agendas and sheer numbers, they need to be better organized before hand. HUGAFO therefore is therefore keen on attend other various other forums.

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3.7 Yiaku Peoples experience of participation at the WSF By Senteu Ole Kimirri, Yiaku Peoples Association As the curtains dawn, a new day filled with glittering dreams of recognition, appreciation and realization engulfed the atmosphere. The onset of World Social Forum was marked with support from various parties to enable the few remaining hunters and gatherers access world participation space. Remarkably, MS Kenya, a Danish co-operation Organization extended their helping hand to bring on board, a young vibrant and creative youth group that dramatized the menace of FGM and early/forced marriage facing the vulnerable Maasai girlchild. The deep-rooted traditional cultural practice has continued to deny the girl-child access education as equal as the boy-child. At foremost, it was a good opportunity for socialization where the interaction led into making friends from different points of the world. The sharing, discussion and exchange of views, and publications (bronchures, reports, banners) enhanced networking and strong linkage development. The flexible environment that allowed people shout out their constraints and challenges to the whole world really brought live into the ongoing world debate on globalization to the indigenous and minority peoples. Deep into their concerns, the participants could express their bitter feelings; by use of best words and actions. The game was played with very flexible and user-friendly rules that encouraged expression even in our own mother tongue. The extents of each day were moderated with various entertainments ranging from traditional songs, modern dances to religious songs and dances. The aura enabled the dialogue among people of different ethnicity, tribes’ cultures and social backgrounds. The forum created a chance for indigenous and minority groups exchange experiences and learnt new skills of approaching their unique challenges and perceived constraints. It was a show of solidarity that signified talking in one voice over the various issues that affects the lives of indigenous and minority people’s participation and involvement in their own developments in the modern world. Yiaku community joined the whole world affirming that another world is possible free from discrimination of all forms, that the 2007 world social forum will reach unprecedented levels of inequality and injustice of human right abuses, insecurity and human suffering. The community also showed solidarity in condemning wars and terrorism, especially invasion of Somali, where many people have been killed as the warlords and terrorists continued to dictate the rules of the game. They joined the voice for calling a world of justice and peace for all, where people become actors of their own development. Therefore, Yiaku also reaffirms becoming actors, thus, walking the talk. The forum was a learning platform for sharing innovative management tools including information, advocacy strategies and support initiatives that promote and strengthen the organization at all levels. The different entrepreneurship dynamics ranging from tale of traditional beadwork to complex advocacy t-shirts and caps created a room of learning to the few Yiaku women participating at the forum. The Yiaku participants were able to use both local and International media in speaking out their strong commitments towards reviving their almost extinct Yiakunte language. The demand for ownership and control of their ancestral Mukogodo forest, since time in immemorial, they have been able to preserve Mukogodo forest intact despite demarcation as a government Reserve forest in early 1940s. The community has continued 18

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

to show relentless efforts in conserving the forest by use of traditional methods of natural resource management. The call for fair trade was another voice to reckon as the world experiences the effects of globalization, Yiaku community joined in condemning unfair prices on common goods despite the government claiming favourable economic growth. They World Social Forum 2007 rejected politics inspired by IMF and WB that are not conducive to the prosperity of African economies. Just like Yiaku needed support from other tribes in Kenya; Africa also calls other countries in the World for support toward bringing remarkable changes. The war against other ills of the society requires collective actions. Another voice of Africa for Africa is possible.

Samy Lenoile and Jennifer Koinante (HUGAFO/Yiaku Peoples), and Wagari from ABN/Porini take some time to reflect at the ABN stand. Photo P Kuria

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4.0 Report on the WSF 2007 by WIMSA Victoria HARASEB (Mrs) 4.1 Introduction The Working Group of Indigenous Minorities in Southern Africa (WIMSA), established in 1996 as an umbrella and networking non-governmental organisation (NGO) for all San in the Southern African sub-region, was hosted at the World Social Forum (WSF) held in Nairobi, Kenya from 20 to 25 January 2007 by the Porini Association, Kenya. Mrs Victoria HARASEB, Assistant Education Advisor at WIMSA and Mr Gideon (Costa) ORESEB was scheduled to attend the WSF 2007 in Kenya. Unfortunately, Mr Costa ORESEB couldn’t attend due to financial constraints and personal reasons and instead, Mr Samuel HARASEB, the Executive Director of Community Empowerment and Development Association (CEDA) attended the WSF 2007 accompanying Mrs Victoria HARASEB. CEDA is a non-governmental community empowerment and development organisation focusing on poverty reduction, economic empowerment, capacity building, paralegal services and HIV/AIDS research, management and prevention. 4.2 Funding The funding budget approved for the WSF 2007 event covered the return air tickets, accommodation, local and airport transfers as well as subsistence allowance. The air ticket of Mrs Victoria HARASEB was paid by WIMSA, while CEDA paid the air ticket of Mr Samuel HARASEB. 4.3 What is WSF? The World Social Forum, alias WSF can be seen as a space of deliberation, a public space of deliberative democracy. What is so unique about WSF? The WSF had since its inception in Porte Alegre, Brazil at the turn of the millennium, became the platform for anti-globalisation campaigns, especially for the world’s struggling population, mostly in the southern parts of the globe. The WSF is seen politically as a process in terms of its open space character, from which no unified statements are presented and at which no one represents the WSF as a whole. It is an international event at which many individuals, civil society organisations and others gather to debate on issues, network and partner, plan and develop action plans and further strengthen collaboration between themselves. The event is timed almost exactly as the world’s elite gather in winter-freezing Davos, Switzerland for the World Economic Forum (WEF). The WSF, unlike the WEF, is not done in the exclusivity of Swiss comfort where top CEO’s and world leaders gather to also talk about the state of the world, but the WSF for 2007 was held in the Moi International Sports Stadium in the Kasarani suburb of Nairobi, Kenya. 4.4 Reflections from the WSF When the world clock reached 18H45 Namibian time on 19 February 2007, the journey started in Namibia (Windhoek) via South Africa (Johannesburg) to Kenya (Nairobi). We arrived on 20 February 2007 in time for the opening ceremony of the WSF 2007 in Uhuru Park in central Nairobi, an Eastern African city. After registration and being stuffed with a 200-page long programme of events and activities, it was now about time to scrutinise the programme for activities to be joined and debates to be part of. The week-long event was neck-breaking, intimidating, competing for time and resources as well as challenging as fellow social activists from all over the world convened in this East African city to share experiences and stories of struggles and aspirations for a more equitable world. Hence the slogan, “Another World is Possible”. It was estimated that around 60 000 people attended this event. 20

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We decided to participate in the following activities: a) Ensuring universal and sustainable access to the common good of humanity b) Democratising knowledge and information c) Ensuring dignity, defending diversity, guaranteeing gender equality and eliminating all forms of discrimination The more interesting activities and dialogues we got involved in were: a) Indigenous territorial and land rights in Africa as presented by Porini Association b) Culture and Biodiversity as presented by African Biodiversity Network The warmth of solidarity, however, couldn’t be escaped as whites, blacks, people from northern and southern countries, from the First and Third World mingle in solidarity and in serious discussions and dialogues on how to face the world’s serious problems such as global warming, negative effects of globalisation, HIV/AIDS, education, indigenous and territorial land rights, culture and biodiversity. Reflecting on our short stay in Nairobi for the World Social Forum, I am happy to hear stories of survival, hope and recovery from Africa. 4. Learning and way forward for the WSF

Victoria Hareseb (WIMSA), Namibia "I am happy to hear stories of survival, hope and recovery from Africa... "

Proper and detailed planning is essential for participants to gain valuable information and networking opportunities at such an international forum.

The key issues with regard to WSF in general are the frequency of events, the democratisation of the WSF process and the need for concrete outcome and strategies. In order to benefit from WSF, the process needs to be methodical and strategic with clear measurement metrics. In terms of democratisation of the process, WSF need to reach out to the marginalised, the minorities and the destitute. Participating in the WSF events requires too much energy in terms of organising and limited resources. Such social forums need to be localised and regionalised within the region (e.g Africa) to ensure greater participation and involvement in the WSF. Exchange of learning’s, proposals and action plans between different country specific social forums need to be setup.

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Part Two Annex 1

A New scramble for Africa’s remaining collective territories: The trends, tensions and challenges.

Annex 2

A case study of collective rights over territory in the coastal Kenya

Annex 3

Africa’s Wealth of Seed Diversity and Farmer Knowledge – Under threat from the Gates/ Rockefeller “Green Revolution” initiative

Annex 4

A Call for Building Alliances

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Annex 1

5.0 A new scramble for Africa’s remaining collective territories: The trends, tensions and challenges BY KORIR A. SINGOEI & ADAM HUSSEIN ADAM1 EXECUTIVE SUMMARY This study seeks to interrogate the present status of collective, cultural, communal, territorial, and environmental rights in Africa. The study is aimed at policy makers; territorial, land, environmental, indigenous peoples and other rights champions; citizens of Africa and Africa’s development partners of all kind. It is designed to raise debate and to obtain solution on the subject - re-claiming territory rights and to build community interests in land at all levels borrowing from best practices, particularly within Africa itself and Latin America A momentum is growing of yet another scramble for Africa’s communal territories in the name of development. Indigenous and local communities are resisting as their territories and associated spirituality are being turned into property for commercial exploitation. A recent research shows that the remaining sixty-five percent (65%) of collectively held territories in Africa are now under threat. These threats are growing under various guises, some of the most prevalent being: extractive industries, tourism, conservancies, push for individual property rights in the name of poverty alleviation, African governments drive for investments, export oriented agriculture, bio-fuels as well as the various bi-lateral and multi-lateral agreements and policies and continuing land reform programmes. This is done in the name of mainstreaming Africa into the development process. For indigenous and local communities, territory comprises of complex system of land, livelihood, culture, governance and spirituality which embodies the living, the dead (ancestors) and the yet unborn of all species including humans. This system is held together by a clear understanding of intergenerational responsibility underpinned by core principles such as: Inalienability (no-one can be alienated from the system because ones identity is derived from it) Indivisibility (requires all elements for the whole to function) Perpetuity (inter-generational responsibility) African people’s cultures (spirituality, norms, values and customs) find expression in their native ecological systems, which have been primary instruments for the preservation of healthy community-ecosystem relationships, which have sustained them for centuries prior to colonization and independence. Recognizing Africa’s culturally diverse heritage requires that these territorial systems are respected and legally protected from the last throws of colonization from both national and international forces of globalization. Colonial processes and attempts to mainstream Africa into global economy without Africa’s rooted ‘ideological and definitional support’ has facilitated the importation of mutant terminologies and deficient definitions on the nature and quantum of African territory which has thus exposed land to enormous pressure and radical transformation hence the loss of the territory concept. *The Authors are Founder members of the Centre for Minority Rights Development (CEMIRIDE) Mr. Singoei former Executive Director of CEMIRIDE and now a graduate Law student at Pretoria University. Mr. Singoei is a Public Interest Litigation Lawyer and foremost an indigenous and minority rights champion. Mr. Adam is an the current Diversity Programmes Officer at (CEMIRIDE) and Africa Cultural Study student at Maryknoll Institute of African Studies of Saint Mary’s University of Minnesota (MIASMU) Mr. Adam is equally rights activist who focus is cultural communication, diversity and inclusion. 1

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“The lust for [Africa’s] land has become a giant epidemic (Loughran, 2007),” beside countless reforms, Indigenous land expropriation has been rationalized and provided legitimacy through law. Law and judicial precedents remains the single most important instrumentality tool of exploitation. Restoring indigenous territory and dignity has resulted in a never ending and intensive dual process with variants of both capitalism and socialism in affairs of African people. Consultations with local and indigenous communities struggling to resist displacement by asserting their responsibilities, rights and will to maintain their heritage for future generations, are calling for the building of national and regional alliance to prevent Africa’s remaining communal territories from decimation. Lessons from Brazil have re-enforced commitment to avert a landless movement in Africa. We must unite in order to protect our Mother Earth and we the children from being apart. Conclusion and Recommendations While the international and national systems, which are heavily influenced by the global market, will continue to do everything they can to subordinate indigenous peoples, it is not a lost cause. The Bretton Woods institutions and other bilateral and multi- lateral donors and institutions, including WTO, remain guilty as charged for the violations of territorial rights of communities. The power they wield however is such that they cannot take the sentence so imposed by movements and communities. More strategic engagement must thus be pursued, whose central motif must rest in greater involvement of victim communities. Africa’s HOPE of the future and PURPOSEFUL present is linked unity of Africa’s people and resolves to hold Africa’s’ primordial principles and exercising territorial rights. Therefore this study calls for reclaim language, concepts and definitions that support the commons and Africa’s territory. The study calls for mainstreaming into policy sphere concepts that restored dignity of African as people capable of shaping their destiny. The study thus, warns that champions for common held territories to stay alert to both the tactics and language being used against us, and that we do not fall into the trap of trying to define our interests and future through concepts and frameworks. While the international Human right regime is weak in implementation, costly and time consuming it however offers a viable, in re-articulation and reclamation of rights to territory. Recent applications of these standards in South Africa, Nigeria and Botswana on territorial rights claims have shown success and therefore set standards for the future. This study therefore calls for strengthening of this frontier needs to be strengthened through deliberate monitoring of standard setting and more vigorous usage of emerging institutional opportunities, such as the new African Court on Human and Peoples Rights and United Nations Permanent Forum on Indigenous Populations etc. This report unequivocally recommends that there is need to establish an African alliance to defend/promote collective territorial rights, based on African worldviews, within the modern context. Such a platform must be structured so as to have good representation of communities, civil society groups, particularly land and housing alliances, indigenous peoples and minority rights movements, environmental and biodiversity rights movements etc. The platform must however be issue specific and targeted in so far as the key personalities and institutions being pursued is concerned. It must have key spokespersons/public faces, who can become the embodiment of the movement. Autonomy and creativity at country and sub regional levels ought to provide the needed energy and enhanced ownership. The Platform must provide networking, learning channels and information sharing to its membership, while developing the necessary capacities for solidarity mobilization and knowledge development. The internal governance of the Network/Platform must be an early concern so that a proper foundation is constructed. The publicity of community struggles in Africa, even successful ones, remains poor. This lack of visibility of success, owing largely to the fact that most media institutions owe their existence to large business enterprise and can thus “not bite the finger that feeds it”, is an impediment that ought to be overcome. A clear media and 24

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communication strategy should be conceived as early as possible to bring forward both the successes and challenges of these initiatives. The use of e-communication, in particular, is of utmost necessity, at the horizontal and vertical levels, of course due regard being paid to the capacity challenges of the digital divide that continues to imperil the South. More quantitative research should be undertaken to measure in more specific terms impacts of territorial loss on communities and African economies. This would constitute an important input to the reparations agenda against the West, which Africa ought to pursue. Such research output should be well documented and disseminated at all levels, including in appropriate form, at community level. In addition dialogue on language and ideas to reverse the erosion of Africa’s self esteem. A strategy of sensitization and re-information must be embarked on targeting both African states, through its core Pan state institutions, and communities. African visions and world views, particularly those that relate to spirituality and governance viz a viz land/territory must be articulated. The clanging symbols of modernity have had a captive audience in Africa, so much so that the African reality sounds like distant drums to many. The re-awakening of the African self, cannot take place without ceremony or strategy. The enemy camp is active and ever so daring in its quest for more territory for mining, tourism, and other forms of exploitation. Surveillance and monitoring of key institutions, has taken place, with no specific focus on territorial rights issues. Indeed, the kind of monitoring that has taken place is premised on the benchmarks set by the adversary, such as Millennium Development Goals (MDGs), rather than those established on the objective reality of the context of communities. A more proactive monitoring of the Bretton Woods institutions, must become a preoccupation of this initiative When all is said and done, it is fact that the instrumentality of the constitution and law has been applied in a manner capricious of the territorial interests of communities in Africa. These laws are now bed-rocked on judicial presents, which cannot be overturned, merely by a wishful wave of the hand. It is imperative that legal and policy reform at national level be pursued. Model legislation on territorial rights would be an important benchmark against which specific reforms can be orchestrated at the national level. Targeted strategic litigation, however, needs to be considered against further large scale expropriation of territory. Such litigation could take advantage of solicitous frameworks at the international and regional level e.g. the Africa Commission of Human and People’s Rights (ACHPR). We have also seen the ways state and industry collude to undermine our rights. The official balance of power between indigenous peoples and the state and market is much skewed in favor of the latter. But our ultimate power is the profound legitimacy of our causes, the strength of our struggles, and the foundation of our organized communities and formations, combined with the renewed support of our allies.

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CHAPTER ONE 1.1 Introduction Territorial and land disputes are very emotive subjects. Often such dispute results in violent conflicts and lately in South America landless movement. Africa is however, undergoing major land internal territorial struggle without major displacement and all out violence. Africa is in the middle of a very well choreographed and orchestrated scramble and partition of its internal territory. It is noteworthy that notwithstanding nearly a century of colonial and post colonial governance, 65% of land in Africa is still held under customary tenure. Why has communal tenure survived this onslaught thus far? Is it due to the inefficiency of African governments in ensuring that land is titled under some specific tenurial arrangements or is it due to the resilience of customary tenure? Either way, land governed under customary land tenure is the subject of much interest globally. From multi lateral agencies to bilateral donors, the focus on common-held territory has increased over the last 20 years. This interest is manifest through funding for researches on common property relations, support to agrarian reforms, encouragement of the formulation of national land policies and support to non state actors’ lobby and advocacy efforts, among others. Why all these efforts? The prevailing thinking is that land is the main factor of production in Africa’s largely agricultural economies, and that therefore harmonizing land relations would secure poverty reduction, address environmental degradation and reduce conflicts inter alia. In other words, the full exploitation of all land, particular customarily held land, is the central motif in the locus of meeting the food security needs of the continent and feeding the industrial and post industrial demands of Northern countries. Others argue that titling will facilitate private sector investments in land since in so far as land is governed under informal and imprecise regimes such as customary law; this constitutes dead capital, which according to Hernando De Soto amounts to about US$ 245 billion globally2. The other premise is that population growth is putting enormous pressure on land already demarcated. Further sub-division renders this land economically unviable therefore demanding for encroachment to new lands. The need to bring customarily held land under some regimes that would facilitate efficient disposal becomes the more urgent. Yet the most apparent interest is founded on the notion that customarily held land holds in a promissory form, huge quantities of flora and fauna being the unchartered paradise, yet to be tampered with and despoiled by modernity. This diversity, according to many, needs to be conserved and economically exploited, either by being ensconced in conservancies, or by way of establishing joint management regimes between communities and private sector. In the same vein, customarily held land also happens to provide the promise for the mining industry without the attendant heavy cost and time constraints that would be demanded in the case of individually held property. It is easy for extensive exploratory and extractive works to take place in such territories and for massive negative social and environmental impacts to be occasioned upon communities, without much ado. 1.2 The study Hypothesis This study hypothesized that compartmentalization and de-fragmentations of territory has escalated the attack on indigenous land rights in Africa. On the other hand, the commoditization process of land as property has increased the tempo of expropriation of collectively held territories and is depriving rural populations of means of subsistence and livelihoods in sub-Saharan Africa. It is apparent that African territory is under siege from market led forces whose ultimate target appears set to bring collectively held territories under the purview of formal property by way of registration and issuance of 2

Overview Paper, High Level Commission on Legal Empowerment of the Poor pg.9

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certificates of ownership to individuals and corporate entities. Under the guise of reforms in land tenure and use to enhance efficient management, improve agricultural productivity and reduce conflicts; legal definitions, frameworks and judicial decisions have been imported whose net effect is to avail land for extractive industries including energy and mining, tourism, commercial agriculture and other capital enterprise to the detriment of the poor. This report further observe that the attempted mainstreaming of Africa into the global economy has been facilitated by a deliberate importation of mutant terminological and definitional deficiencies on the nature and quantum of African territory which has thus exposed land and natural resources to enormous pressure. An intensive dual process with variants of both capitalism and socialism have been operational and are presently being replaced by countless hybrid processes all ostensibly aimed at poverty eradication and economic development. Yet the bottom line really is whether Africa is free to holistically develop in its own terms, and whether it will be left to evolve its own models and ideas that will emancipate its people from hunger, disease and poverty. As land is the singular significant resource in rural Africa where the majority dwell, it becomes incumbent to thus investigate the causality between land relations and the economic, social and political development or otherwise of the continent. From the foregoing, this study will seek to interrogate the present status of collective, cultural, communal, territorial, and environmental rights in Africa and recommend a way forward to secure territorial rights for local communities. In this pursuit, the study will undertake the following:  Generate conceptual understanding and historical underpinnings of the issues of collective, cultural, communal and environmental rights to provide adequate foundational thrust of the issues and enable deeper elaboration and discussion of the various contours of the issues.  Analyze the legal and policy context that inform and under gird the emerging land scenarios in Africa;  Exposition of regional and International forces that undermine or support collective territorial rights in Africa;  Discourse on land as property in Africa be it private or collectively held;  mapping and analysis of major stakeholders in the land movement in Africa to inform any alliance building initiatives;  Conceptualize and propose mechanisms and strategies for re-claiming territory rights and community interest in land at all levels borrowing from best practices, particularly within Africa itself and Latin America 1.3 Data Sources and Methodological Approach Data from this study is from variety of sources and cuts across several disciplines, including philosophy, law, anthropology, governments, multilateral institutions, international NGO’s, research organization and foundations. It is all secondary data that is available in the public domain and it was obtained primarily from internet, several documents, books, official/unofficial, published/unpublished and any other sources. A list of the internet websites and books that were accessed is included in the reference sections. Three considerations guided choice of the sources and presentations of the data:  Consistency: only data that could obtain from credible sources such as the United Nations, World Bank, national bodies on the same issues across time was used to develop and plot trends. This was to ensure relevant indicators were being defined, captured and measured in the same way for all the selected countries and regions across time;  Comparative: Similar information and trends (policies, reforms, processes and practices) were obtained from different sources across geographical space selected regions south of sub-Sahara and elsewhere were used to obtain high degree of confidence; 27

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

Chronological: A Histro-chronological process was used to set the trends. This was to ensure rational sequence of events and process. The study will confine itself to popular and standard definitions of concepts. The data and reports are presented as both graphical and narrative. It is worth keeping in mind that quantitative data presentation and analysis cannot capture the full richness of the subject at hand. Some issues are too recent (climatic changes, networking on territorial issue) and too global to build consistent statistics. 1.4 The Organization of the Report This study is subdivided as follows: Chapter one exposes the research issues; chapter two then delves into the foundational and philosophical exposition of the various concepts of land in the African setting including, territory, collective and individual land rights, customary law, tenure etc; chapter 3 discusses the reality of the ongoing assault on collective territory; while chapter 4 interrogates the drivers of territorial transformation, while looking more closely at some of the emerging models of struggle against neoliberalism and globalization in the context of land. The last chapter makes conclusions and proposes key recommendations for the establishment of a autochthonous movements for territory in Africa.

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CHAPTER TWO 2.1 Sub-Saharan Africa Today The arithmetic of poverty in Africa conveys a damning picture. First with some 40 percent of the people living on less that $US 1 a day, Africa is the poorest region in the world (Economic Commission for Africa, 2004, pg.15). Second, poverty in Africa is predominantly located in rural areas, where more than two-thirds of the total population and 70 percent of the poor of the continent live. Third, the livelihoods of the African poor, both in rural and urban areas, depend primarily on agriculture, as at least two-thirds of the total labor force is engaged directly or indirectly in agriculture-related enterprises. Moreover, urban poverty and rural poverty are inter-linked, because the former feeds on the latter through rural-urban immigration. Hence, for the majority of poor African households, improving the productivity of the domestic food and agricultural systems (production, processing and marketing) is key to enhancing well-being and getting out poverty3. As the main foundation for agricultural production and rural livelihoods, land is at the core of the challenge of triggering a Green Revolution and getting agriculture moving for food security and poverty reduction in Africa. It can be easily used as an asset for social and regional integration or disintegration, as can be illustrated by many examples across Africa. Consequently, access to, and security of, land rights are prime concerns for policies and strategies aiming at reducing food insecurity and poverty. Rapid population growth, widespread poverty, persistent food insecurity, and alarming rate of environmental degradation have fueled an increasing debate on land tenure systems and land reforms in Africa. Some expert and donor circles have attributed the interrelated problems of rural poverty, poor agricultural performance and low levels of economic growth to the persistence of farming systems based on customary tenure. This view has inspired a variety of land reforms with a general trend toward market-oriented access to, and privatization of, land through private entitlement, on the premise that individualized tenure offers the best certainty in land rights, which provides incentive and facilitates access to credit for investment in agriculture and natural resources and, thereby, contributes to increasing agricultural productivity and improving natural-resource stewardship. Yet, other voices are challenging such a single-solution approach on the basis that social relation within and between local communities in rural Africa have traditionally been able to provide secure land rights. 2.2 Africa’s Contested Lands and Minds How we define our world has impact on how we perceive it. Nowhere is this demonstrated than in the definition of land. According to Hegel, Africans live in a state of innocence and the conditions under which they live are incapable of any historical development or culture (Masolo op cit 91). In the introduction of his book The Philosophy of History Hegel (1956) concluded that he could not include Africa in his analysis of philosophy of history because Africa was a tabula rasa - (empty slate). As far as reason was concerned, Hegel thought that Africa lacked history, development, and culture, in so far as these dimensions were not documented in a westaphalian sense. Hegel derogatorily detached Africans from rationality. Succinctly stated, Hegel conceived the African as one who does everything accept the ability to reason or reflect philosophically4. The philosophical definition of African people as being empty of “abstractive thought” led to the legal

3

4

Economic Commission for Africa, Land Tenure Systems and their Impacts on Food Security and Sustainable Development in Africa (2004), page 15. The Economic Commission of Africa, like many UN and other multilateral bodies see poverty as merely an economic condition, hence the obsession with the measure of American dollars one makes per day as the main indicator for poverty. This thinking has been criticized as being too materialistic, a vast preoccupation of the West. See http://www.conservatives.com/tile.do?def=news.story.page&obj_id=133781 for new thinking in the political context of the United Kingdom on poverty. Inyang John: Hegel’s Idea of the Absolute and African Philosophy, in http://www.frasouzu.com/Seminar%20 Papers/Hegel %20 The %20 Absolute%20and %20 African %20 Philosophy. htm, cited on 4 th January 2007

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definition of African territory as teranulius – vacant territory. As such Africans relation with their land could not constitute property capable of legal protection. What followed the above premises was the massive expropriation of lands first by multinational companies, such as the Imperial British East African Company (IBEAC) in Kenya with the express aim of extracting natural resource out Africa; then, the colonial empires which came to legitimize and support the quests of their commercial enterprises. Today the actors in the “neo-scramble and partition of Africa” are multi-lateral companies –energy and exploration companies; and multi lateral and bilateral donors. Tensions between traditional communities in Africa and elsewhere and modern nation states take a number of forms, but none are as frequent or seemingly intractable as the question of control and access to natural resources (resource sovereignty). Colonial processes of territorial acquisition and state formation had dramatic consequences for the resource rights of communities: Indigenous peoples’ assets, interests and property have been sold, leased, traded, and despoiled; communities have been dispossessed, displaced and impoverished; lands have been submerged, cleared, fenced and degraded; seas, rivers and lakes have been polluted … and appropriated for private use; sacred sites have been dynamited, excavated, desecrated and damaged in every possible way; cultural knowledge and material has been stolen, displayed, appropriated as national heritage, and commodified as an economic good; and even indigenous peoples themselves have been classified, subjected to repressive legislation, arbitrarily removed from their families by state apparatuses, and most recently, subjected to patenting of their genetic materials (Howitt, Connell, and Hirsch 1996, p.15) Law and judicial precedents remained the single most important instrumentality that rationalized and provided legitimacy and credence to the foregoing state of affairs. Thus in Kenya, the decision in Isaka Wainaina Wa Gathomo and Kamau Wa Gathomo vs. Murito Wa Indagara & Attorney General (1922-23) 9 (2) KLR 102(Barth judgment) confirmed the benign reality that Africans in Kenya were but tenants at the will of the crown, with the court affirming that all legal rights on lands occupied by the Africans were made subject to the rights of His Majesty and the Africans living therein could only have possesory rights or right to beneficial occupation as the largest quantum of rights. The judges had the opportunity of asserting the position that the concept of native land rights had been redefined with the effect that, given the natives did not have legal rights to their settlements, the same could be taken away by a simple administrative action as and when the settlers deemed fit especially if found suitable for European settlement. Similar decisions were generated by courts with respect to African lands in Nigeria and Zambia5. The post colonial state is founded on the same colonial substructure and legal and policy imperatives have taken on an ominously similar course. We shall be focusing more on the role of law in dispossession and accumulation of land in section 2.4. For now, it is important to outline that while the appropriation of land was an obvious loss to the African peasantry, this was not the greatest tragedy, unfortunate as it may have been. What radically transformed African land relations the effects of which reverberate to the present was the loss of the philosophy of land as territory as understood by the African indigene. What constituted territory in Africa is therefore a question that demands the focus of this work. 2.3 Territory in Africa: Conceptual and Practical Implications There is no dearth of material on the subject of territory particularly in the context of Africa, and yet it is surprising that this conception of land has continued to suffer immense obfuscation in intellectual and advocacy discourses on land. Perhaps it is Mbiti 1969, quoting a Ghanaian Chief, who captures the essence of territory thus: I conceive that land belongs to a vast majority of whom many are dead, a few are living and countless hosts are still unborn. The implications here are clear. That land is not merely the surface and subsurface 5

Re Southern Rhodesia (1919) AC 211,233, per Lord Sumner; Amodu Tijani v. Secretary Southern Nigeria,1921,2 AC ,399,407,per Viscount Haldane

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resources as per the latin maxim: quik quid plantatur solo solo cedit (land is the surface as well as the space above it and the ground beneath it).It is an intergenerational resource that links the visible to the invisible and imports serious ethical, social, environmental and spiritual implications. Out of the quest to ensure that land and its resource is used sustainably for the present and future generations, a strong environmental movement on intergenerational equity has emerged, which posits that “The human species, hold the natural environment of our planet in common with all members of our species: past generations, the present generation, and future generations. As members of the present generation, we hold the Earth in trust for future generations. At the same time, we are beneficiaries entitled to use and benefit from it.”6 As a consequence of this thinking, intergenerational equity obligates each generation of people to act responsibly by conserving the diversity of the natural and cultural resource base, maintaining the quality of the planet, and, providing its members with equitable rights of access to the legacy of past generations and conserving this access for future generations7. The intergenerational equity principles are in concord with African customary conceptions as well as other traditions, which more or less viewed people and its rulership as trustees over territory. African customary thinking contains deep roots for the principle that we are only tenants on Earth, with obligations to past and future generations. Land thus belongs to the community, not to the individual. The chief of the community or head of the family is like a trustee who holds it for the use of the community. Members of the community can use the property, but cannot alienate it. A number of theoretical bases have emerged over time to buttress this forgoing thinking in relation to African relation with land. According to the essentialist school of thought land is not alienable in Africa by virtue of its immutable relationship with the dwellers thereon, “land (in Africa) is distributed according to a system of caste, seniority and gender.8” The land can only be transferred while observing certain clauses and it cannot be “attributed permanently to someone outside the clan (ibid).” The ‘village’ is seen in this model as the primary sociopolitical unit for land tenure and other political decisions. While acknowledging the existence of units within the village (individuals and families), entities which overarch the village, such as the state; and political structures which cut across villages; are accorded secondary importance. This approach has been taken by various authors. Belloncle (1982) sees this as a potentially democratic advantage for African rural communities: ‘African villages ... generally have democratic power structures. This is particularly evident in the existence of a council of household heads assisting the village chief (the first among equals), and by the consultation surrounding public decision making. It is never sufficiently recognized what a trump card this may constitute from the perspective of ‘contractual’ development. ... In general, African villages still exhibit a great deal of economic homogeneity. And primarily, but for a few exceptions, the general rule is equal access to land’ (Belloncle, 1982: 76- 77, Our translation). Belloncle is, however, not alone in arguing that land in sub-Saharan Africa is so imbued with the intrinsic and ineffable identities of their owners that it is virtually inalienable. For instance, one of the most influential French writers on African land tenure, Étienne Le Roy 1996, argued together with two colleagues, Karsenty and Bertrand, that: It is fundamental, in the French understanding of a good, for it to be valued in terms of money. This is not the case in Africa, at least not generally, since all things are not considered goods because they are considered as at times outside the realm of commerce and at times transferable though without complete alienation. In the absence of such full command the thing is, in the strict sense, not a good. Still, land is not only an anonymous and interchangeable thing. It is not only riches but also at times “a person” (in the traditional sense) which can 6 7 8

http://www.unu.edu/unupress/unupbooks/uu25ee/uu25ee0z.htm Cited on 1 st January 2007 Ibid Lind Christian: African Land Tenure- Questioning basic assumptions, pg 3

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be made to talk (like the dead). It was also (at least sometimes) a deity holding vital powers which should be dealt with with precaution. It is in this sense that we propose to use the concept of “common patrimony” (p.52). According to Cormac Cullinan, an adherent of earth jurisprudence9, while speaking globally rather than just with reference to African territory, land cannot be seen as property, which can be fragmented into all sorts of incidences. He argues that the relationship between humans and land is fundamental. It is a relationship that shapes the minds and hearts of individuals and the identity of nations. Changing how we understand and recognize this relationship is at the heart of shifting to a new governance paradigm (Cullinan 2002). The starting point according to Cullinan is to recognize that this area of governance is concerned with the primary relationship between a component of the Earth Community (humans) and that part of Earth that provides human beings with both physical and psychic sustenance. “As humans who live in intimacy with the land are fully aware, it is a reciprocal relationship which involves deep emotional, and even spiritual, connections. By choosing to characterize this relationship as one of master and chattel, we impoverish ourselves and prevent ourselves experiencing and benefiting fully from this most fundamental of relationships (ibid).” This school of thought thus presents an incorporeal perspective to land arguing that the relationship between humans and the land on which they depend is not a relationship between peers but one comparable to that between a nurturing mother and a dependent child, and as such needs to be characterized by respect. “The human roles as land career and guardian require personal intimacy between human and land. Intimacy of this kind requires real people: people with bodies sensitive to the wind and the tingling dance of the morning sun on flesh after a cold night. People with minds that can share the consciousness and feel the pain of wounded earth, people with tongues to taste poisoned water, noses that can run with the black phlegm of polluted cities and lungs that can expand with the joy of pure mountain air (ibid). Our relationship, says Meru (community in Kenya) diviner and Nchurincheke elders (Council of elder for the Meru people) is that of mother and a child. We come from this mother and recycled back to our mother. It is thus instructive according to earth jurists that the breakdown in the relationships between humans and Earth has been exacerbated by the fact that many landowners are incorporated persons that exist by virtue of legal fictions and are wholly incapable of forming an intimate relationship with the land. This lack of capacity means that they cannot connect and communicate with the community and so are incapable of functioning as part of it. Alexandre Suralles et al (2005) presents interesting dimension on the indigenous perspective of territory, particularly from Latin America , as referring to “… the protection of a space in which an individual or a species reproduces and obtains its resources.” Territoriality in this context is defined with signals such as occupation marks, reactions to intruders, real or ritualized combats, etc. ‘Territories’, in this sense, can be delimited, albeit without fixations with boundaries or enclosures. For indeed, one or more species can define different territorialities within the same area, thus generating competition for the same resources; coexisting when occupying different niches or establishing complementary relationships. Territories so defined lack clearly delimited borders and thus can be perceived as networks of niches interlacing and competing with other networks”. Territories so defined, in the indigenous sense, although encompassing settlement, productive and natural resources extraction areas could also include areas not necessarily associated with economic production. 9

Earth jurisprudence draws its foundational vigor from natural law, which espouses a world in which human beings are but one of the key actors and not the only one. In this regard, man cannot thus arrogate himself the role of final decision maker in so far as the destiny of other earth species is concerned. Thomas Berry is undoubtedly the father of this school of thought. See www .earthjursiprudence.org

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Although this territorial notion comes close to the concept of national territory, insofar as it represents a collective asset and identity marker (national or ethnical), it differs in one crucial aspect. Whereas a politicaljurisdictional territory is primarily defined by a closed and precise limit, an indigenous territory, although possibly demarcated and delimited, is defined not primarily by its borders and limits but by geographical marks which represent the bond between a group of humans, land-scape and history. Summary of Land Tenure in Ghana Today: Three land systems exist in Ghana. These are 1) State lands which are lands acquired by the state under various legislation notable the Public Lands Act 1876, the State Lands Act 1962 Act 125 as well as other legislation establishing various institutions that empowered them to acquire lands for the fulfillment of their statutory functions 2) Vested lands which are specie of public lands whereby there is a form of dual ownership in which the community still retains the equitable interest in the land while the state retains a legal interest. In this case the state assumes the right of management of the land for the benefit of the landowners. However until such time that the state relinquishes its interest the landowners merely receive the benefits accruing to the property. This creates a fiduciary relationship between the state and the land owners. 3) Customary lands comprising the Stool or skin of family or clan lands where the land is owned and managed by the traditional landowners. Customary Lands The nomenclature attached to the particular land holding varies with the nature of the social arrangement. Land in all traditional societies in Ghana is regarded as an ancestral trust. The oft-quoted statement by an African chief before the West African Land Committee that the land belongs to a vast family of which many are dead, few are living and countless numbers are still unborn aptly summarises this relationship and the reverence with which land is held. It is important to appreciate the diversity that characterises the various social groups in Ghana. This section outlines the salient features that are common to these group, and which have a strong bearing on the pattern of land ownership, the nature of rights and responsibilities and the pattern of administration. Two main social groups may be identified, based on the nature of their political organisation. There are the centralised social groups. These have strong centralised political institutions organised around decentralised structures often in the form of the family or clan units. The first group embraces the Aka cluster and a few ethnic groups in the Northern parts of the country namely the Gonjas, the Dagombas and the Mamprusi. Among these communities, land is an expression of territorial sovereignty and so constitutes an important instrument of political authority. Political authority is hierarchical with the stool or ski head or chief, at the apex. These stools may be grouped under an overall head generally referred to as the paramount chief. The stool or skin is seen as a material object which is regarded as sacred as it contains the soul of an important ancestor and sometimes also the magic of political authority or war power of the tribe. It is the symbol of authority of the tribe and is regarding as the embodiment of the collective spirit of the ancestors of the particular group. In this system the stool the Chief or stool/skin occupant derives his authority, by selection, to the community of which he is a member. The hierarchical structure is such that the stool/skin occupants at the lower levels owe their positions to the paramount chief at the top, and this sometimes reflects the nature of their control over lands. In come cases such as the Ashanti, the Divisional chief, holds his office and stool by kin-right and his selection is by the elders and people of his own division and not by the overall head of the tribe, the Asantehene. Within this schema, Divisional Chiefs are custodians of the lands of their divisions. This may or may thus not be delegated to them by the higher chief. The chiefs and the principal elders of the groups or divisional chiefs act as a council and the main administering body over lands. They thus hold the land as “co-owners”, so to speak, and are accountable not only to the living but also to the ancestors and those yet unborn the stool or skin being the symbol of authority of the community. With the groups with decentralised social system, the social grouping is organised in a loosed political structure with not centralised authority for the whole community. Here political authority is essentially diffused, sometimes giving the impression that they are societies without rulers. Within this set up, however, conceals the complex organisational pattern with territorial control being through clans and family units. In these societies the land priest or tendana or head of the family or clan is an important symbol of authority. The Tendana is usually a member of the pioneer settlers on these lands and therefore the original landowners. The Tindana symbolises ultimate authority over land in the respective villages and towns. This land priest or “landowner” as the name simply implies, performs the appropriate rituals concerning land thereby acting as an intermediary between the living members of the community and the earth which, it is believed, accommodates the spirits of the ancestors. These land priests control, not only the use but also the allocation of, lands. Proprietary interest in land is therefore, vested in the land priest. The land priest ensures that the land is not profaned and, if this occurred, he has the obligation to propitiate the gods through sacrifice and the imposition of sanctions, which in the past may even involve expulsion from the grou in extreme cases. In similar decentralised social organisations where no land priests exist, land is administered by clan or family heads. Here the allodial title to the land is vested in the family or clan head who holds it in trust for the other members of the family or clan. The land priest or the head of the family or clan with the principal members or elders of the group form the main administering body over lands in these societies. Thus the head is accountable not only to the living but also to the ancestors and have responsibility for protecting future generations as well. The main administering body is thus the Council of Elders selected from each of the constituent divisions, clans or families. Procedures may vary according to tribe or clan but the basic element remains that the elders were representatives of the various cognate groups and these form the mouth piece of the constituent units. The various functions that they perform are done keeping in mind, the main objectives of land management under traditional practices namely, a. to ensure that land was available and each segment of the group had access to the land to meet their economic pursuits, and that areas brought into use by a group or individual was recognised and protected, that members use the land in accordance with accepted customary practices which were primarily designed to preserve and protect all life forms within the community lands, that non-members are adequately screened to ensure that those accepted into the group would effectively integrate into the group and comply with the customs and traditions of the people and that disputes among members were amicably settled bearing in mind the powers of the ancestors to exact retribution for flouting the rules that sustain the community in its relationship with the land.

Table 1: Depicts Land Tenure and Focuses on Traditional Land 'Ownership' Dynamics in Ghana in the Past and Today

In our attempt to make sense of a host of richly detailed case studies, we have found Okoth-Ogendo’s (1989) analytical framework to be particularly useful. He provides a persuasive analysis of the nature of property 33

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

rights in Africa. The core of his argument is that a ‘right’ signifies a power that society allocates to its members to execute a range of functions in respect of any given subject matter; where that power amounts to exclusive control one can talk of ‘ownership’ of ‘private property’. However, it is not essential that power and exclusivity of control coincide in this manner. Access to this power (ie. a ‘right’) and its control are distinct, and there are diverse social and cultural rules and vocabularies for defining access and control10. In Africa, land rights tend to be attached to 'membership of a community of people bound together by an ancestral linkage, real or putative'. In this sense thus membership in a group becomes the cornerstone for any claim for rights of use, access or any other entitlement; the basis being the ancestral, spiritual and other metaphysical attachments to a given territory, be it a water mass, a shrine of bushes or rangeland. Thus, In African land tenure regimes while there is no coincidence of access and control, it is arguable that ownership in a communitarian sense is imported to a group. In this context, the rights and responsibilities of chiefs, Earth Priests, Clan/Family Heads and other indigenous institutions of governance will interplay with individual membership, albeit with little contradistinction. Several rights of the members could be inferior to, or coterminous with, or indeed superior to the sum total of rights of a group. Hence while customary law does not vest ownership in the English sense in the family or group, it ascribes to it/them the aggregate of the rights that could be described as ‘ownership’. Explorations of land regime in Africa demonstrate a duality of tenure system a weakening traditional or customary tenure and an emerging strong contemporary western model of tenure. Ghana’s case sets out this dynamics: Rights over land in the African regime are thus undoubtedly trans-generational and territorial; management is exercised through membership in the group and through the diverse governance systems where spirituality cemented the relationship between custodians and community members. In this set of things, different land uses would naturally attract different management and governance structures at varying levels of socio-political organization (e.g. allocations of arable are often controlled at the family level, while grazing is the concern of a wider segment of society (ibid: 11). Using this conceptual framework, the distinctive features of African tenure regimes can be listed:  Land rights are embedded in a range of social relationships and units, including households and kinship networks and various levels of ‘community’; the relevant social identities are often multiple, overlapping and therefore ‘nested’ or layered in character (eg. individual rights within households, households within kinship networks, kinship networks within local communities, etc).  Land rights are inclusive rather than exclusive in character, being shared and relative. They include both strong individual and family rights to residential and arable land and access to common property resources such as grazing, forests, and water.  Rights are derived from accepted membership of a social unit, and can be acquired via birth, affiliation or allegiance to a group and its political authority, or transactions of various kinds (including gifts, loans, and purchases). They are somewhat similar to citizenship entitlements in modern democracies.  Access to various bundles of rights in land is effected through systems of authority and administration  Management of land resources either through traditional authority or at family levels is concerned primarily with guaranteeing access and enforcing rights, regulating the use of common property resources, overseeing mechanisms for redistributing access (e.g. trans-generationally), and resolving disputes over claims to land. It is often located within a hierarchy of nested systems of authority, with many functions located at local or lower levels.  Social, political and resource boundaries while often relatively stable are also flexible and negotiable, given the nested character of social identities, rights and authority structures. 2.4 Transformation of Territory in Africa: Role of Law and other normative frameworks 10

See also Bennett’s (2004: 380) discussion of Allott’s analytical framework in which he distinguishes between interests of ‘benefit’ and ‘control ’ .

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That colonialism was more than anything a paradigm battle cannot be gainsaid. From the Christianizing mission to forceful conquests, the one message that resonated was that African systems, both secular and religious were inferior and profane and needed to be fundamentally altered in order to humanize and modernize the black race. Within the colonial enterprise Africa’s strategic import was in so far as it could provide raw materials for its industries and market for its manufactured goods, hence land ownership constituted a critical area of contestation, and forceful annexation of African territories had to be rationalized away. It is in this context that customary tenure was described as incapable of granting property. In Kenya, contempt for customary land tenure has been widely documented (Ogendo, 1991). Even before the Swynnerton Plan of 1954 defined systematic procedures for the conversion of customary tenure into individual freeholds, official policy always contemplated the ultimate disappearance of that system. As was the case then, so it is now, the official policy of Governments in Sub Saharan Africa is the extinguishment of customary tenure through systematic adjudication of rights and registration of title, and its replacement with a system akin to the English freehold. To sustain the foregoing logic, the colonial state introduced the concept of customary tenure backed by an institutional framework under the chief imbued with powers that went beyond the chieftaincy as it was known in traditional society. Communities that did not have centralized leadership, were made to instrumentalize the form of leadership which vested an individual with sovereign authority over the community’s resources, to reduce the need for broader community consultation required before fundamental decisions affecting it would be undertaken. Indeed, it is observable that a profound connection between the use of the chieftaincy as an institution of colonial government and the development of the customary law of land tenure exists. The development of the concept of a leading customary role for the chiefs with regard to ownership and allocation of land was fundamental to the evolution of the paradigm of customary tenure….. the chiefs were seen as the holders of land with rights of administration and allocation. Rights in land were seen as flowing downward. (Chanock 1991: 64).This ‘feudal’ model fitted well with western ways of thinking about states and societies, linked colonial land law and colonial contexts, and served the interests of regimes seeking to acquire land for settlers. The Anglo- Maasai Agreements of 1904 and 1911 is an excellent exemplification of the manipulation of traditional governance to suit colonial territorial interests in Africa. It also epitomizes the role of language in the process of domination. In 1904, the Maasai through their religious head, Olonana (Lenana) purportedly entered into an agreement with the Crown in which they allegedly agreed of their own free will to move their people, flocks and herds into lands reserved for them away from the railway line and from any land that may be known open to European settlement. Through this “Agreement” thousands of Maasai and millions heads of cattle were moved from the fertile and productive northern Rift Valley (later known as the White Highlands to Laikipia and other designated areas south of the Rift Valley. It was stated in the “Agreement” that the settlement then arrived at was to endure so long as the Maasai as a race shall exist and that European or other settlers were not be allowed to take up land in the settlements. However, when in 1911 Laikipia was found suitable for European settlement the Maasai were again removed there to the more arid southern Rift valley. The Maasai community became one of the first indigenous African communities to take the British rulers to court challenging the move. In the now famous Ole Njogo Case of 1912 some eight (8) Maasai men protested vehemently and took the matter to court. The plaintiff’s claimed as individuals and on behalf of the Maasai of Laikipia and also on behalf of the Maasai tribe generally, that the treaty made between the Maasai and Her. Majesty, the Queen of England through Sir. Donald Stewart, the Colonial governor in 1904 was null and void to the extent that the Lenana had no capacity to confer proprietary rights to the British sovereign. While some defendants were brought on record as witnesses to the agreement made in 1911 whereby they agreed that they 35

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

and other Maasai should leave Laikipia the said defendants had no authority to enter into such an agreement, hence the agreement stood void. In the instant, the plaintiffs were seeking declaratory relieves as follows: (a) That the Southern Reserve to which their stocks were being moved was infected with East Coast fever and tsetse fly in many places; (b) That the cattle moved had depreciated the total depreciation estimated at Sterling pounds 100, 000.00; (c) That the 1911 Agreement was not binding on the plaintiffs and the other Maasai. In raising an objection to the hearing of the case in a lower court (municipal court), the colonial government argued that the Agreements of 1904 and 1911 were treaties between two sovereign states and therefore could not be heard by a lower court. The fact to note here is that African cultural nationalities such as the Maasai were treated as nations in their own right by the colonial government. The management – hearing and determination of the case was full of biases, arbitrariness, and abuse of office and the due process of law. Paradoxically, when it came to the hearing of the case, only the English legal jurisprudence applied and judgment was based on this factor. The judges and the prosecutors were all from Europe. The Maasai traditional customary laws and norms had no say in the matter. It is noteworthy that the Maasai people had no centralized form of governance, and the elevation of Lenana, a mere religious cohort, to the position of chief and sovereign possessor of all Maasai territory, was an aberration of reality, whose intent was to dispossess the community by manipulating its governance structures. It is noteworthy that this was the pattern across Africa through the enactment of various ordinances, laws, and other promulgations by the colonial and post-colonial governments of different political persuasions. Of course this is not to say that in all traditional African communities, Chiefs were non existent. In fact, in most Bantu communities, who practiced a more sedentarized life, there existed a more centralized from of governance often under a chieftaincy. Reader (1966: 65), for example, describes Zulu land tenure rights as “usufructory” and not “absolute”, stemming from “the tradition that the chief holds all tribal land in trust for those who owe political allegiance to him.” In Swaziland, according to Kuper (1961: 44), “the land and the people are interlocked, and the political bond between rulers and subjects is based largely on the power that the rulers wield over the soil on which the people live, [and] as representative of the nation, the king allots land to his people (ibid: 45)11.” In contrast, Gluckman (1965: 78) asserts that the underlying principle of African land tenure is that rights to land “are an incident of political and social status. By virtue of membership in the nation or tribe, every citizen is entitled to claim some land, from the king or chief, or from such political unit as exists in the absence of chiefly authority.” According to Hunter (1979: 112-13) a chief in Pondoland in the 1930s had “jurisdiction over people but also over land.” When asked, a Pondo would say that an area “belongs to’ the paramount chief, or the chief of a district, or the name of a tribe or predominant clan, but this implied political over lordship not ‘ownership in the European sense’ that imported absolute proprietorship of individuals over territory. It must be pointed out here, that the notion of ‘political over lordship’ simply means that chiefs, Earth Priests, Clan Heads and other institutions of governance are regarded as living embodiments of the common ancestral heritage not political overlords in the European feudal sense!, …, the interpretation of ‘customary’ law by colonial administrators and magistrates served to strengthen, not weaken, patriarchal controls over women and to freeze a level of subordination to male kin (father, husband, brother-in-law, son) that was unknown in pre-colonial societies… this project involved not simply the imposition of Eurocentric views and prejudices on the part of colonisers, but also the collusion of male patriarchs within African society, who were anxious to shore up their diminishing control over female reproductive and productive power’ (Walker 2002: 11)

11

It might be significant that both the Zulu and Swazi cases involve societies in which state power became highly centralised in the period immediately before colonial subjugation.

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Poor interpretation of custodianship role over territories and land in particular in Africa, coupled with patrilineal tendencies has made groups of women Africa to be first casualties of landlessness. Some writers have creatively argued that secure rights in land within the context of indigenous systems range along a continuum from the most temporary to the most permanent, and can swing backwards and forwards along the continuum (Okoth Ogendo 1993). As to the issue of land alienability, it is no longer tenable to argue that there never was a transfer of land to a stranger, for example. Customary law does not prohibit land alienation. Instead, it imposes a condition precedent to the effect that what is transferred is not the physical entity, but specific user rights necessary for the needs of a stranger. This disabuses the perpetual assertions that indigenous systems of land tenure are static and unable to respond to changing, largely economic needs, and that the system fails to provide security of tenure. The reality is that the basic needs of the people, to wit, food, housing, spiritual fulfillment et al, have always been met due to the ever adaptive and evolving nature of customary systems. Pastoralism, a traditional livelihood predicated on collective holding of land by mobile populations to ensure food security is a case in point, to which we shall turn shortly. When most African states became politically independent, they embraced western jurisprudence on property, wherein the state is held as the possessor of eminent domain, to wit, ultimate title to land, and consequent upon which, it has final control of and management over land, including alienation and disposal to whomsoever. The government took further decisions to state manage other land resources which ultimately impacted on a people’s way of lives. This included the creation of National parks and game reserves which meant denial of access to the benefit of wildlife and forest reserves by the communities. What is hard to concede on the part of the government is the fact that despite the introduction of private rights ownership in form of individual ownership and state ownership of land and its resources, communities did not abandon their land use practices and notions of ownership hence leading to the emergence of a dualistic system of law, one based on statute and the other, firmly anchored on customary norms. Post colonial jurisprudence however deprecated indigenous norms and spirituality, the sustainer of all other relations and in many jurisdictions subordinated customary law to statutory/western law, and further subjected its application to customs non repugnancy to public morality, public interest and public health12. All these indices may sound good, except that judicial interpretation has consistently reinforced the notion that these terms must be interpreted against the benchmarks of civilized society, a euphemism for the west and thus western based interests. On the other hand, Some courts have tended to argue that terms such as public interest ought to ensure that the state decisions, often out of variance with interest of communities, and often supportive of the interests of transnational capital, should have the day, in so far as the state “ is the custodian of national interest”13 International law as encapsulated in various United Nations Instruments as well as customary international law, however seem to be increasingly supportive of the position that indigenous systems are coherent with human rights standards, and should be upheld. For example, the European Court on Human Rights (the “European Court”) recently held that: The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently whose situations are significantly different.14 However, the principle that different situations should be treated differently does not only follow from the jurisprudence of the European Court. Also under UN jurisprudence, such as the findings of the Human Rights 12 13

14

See for instance section 117(5) of the Kenyan constitution The Secretary General of OTTU v. The Presidential Parastatal Sector Reform Commission, Civil Case No. 145 of 1995, High Court at Dar es Salaam, unreported See Case of Thilmmenos v. Greece , Application No. 34369/97, European Court of Human Rights, and Judgment of 6 April 2000.

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Committee, state parties are obliged to take positive measures to safeguard the rights under the International Covenant on Civil and Political Rights (the “ICCPR”). Also mentioned in this context should of course be the CERD Convention Art. 1.4, pursuant to which: “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination …” For years now, the Human Rights Committee, pursuant to article 27 of the International Covenant on Civil and Political Rights has argued that protection of cultural rights of minorities often requires the protection and promotion of traditional livelihoods15. The framing of general comment No. 23 of the HRC is instructive in this regard: With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.16 Inspired by the minimal gains in the positive interpretation of article 27 of the ICCPR above, indigenous people have been able to push for more comprehensive international legal framework to undergird their human rights, the bedrock of which is land rights. The International Labour Organization’s Convention 169 and the United Nations Draft Declaration on Indigenous Peoples are the foremost instruments that encapsulate the aspirations of indigenous peoples the world over in relation to land. ILO 169 for instance provides in article 14 that 1).The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect. 2). Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. 3). Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.17 However, limited ratifications of ILO Convention 169, the lack of international consensus on the adoption of the UN Draft Declaration on Indigenous Peoples, limited domestication of international standards at domestic level, and weak enforcement mechanisms clearly undermine the utility of these standards. In the light of these limitations, it is small wonder then that international human rights law has remained largely incapable of checking the excesses of globalization and structural adjustment programmes, notwithstanding the reality that they constrict access to rights. The lack of a universal norm binding on non-state actors demonstrates this

15

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Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada), views adopted on 26 March 1990, and Communication No. 197/1985 ( Kitok v. Sweden), views adopted on 27 July 1988. HRC General Comment No 23, The rights of minorities ( Art . 27) : . 08/04/94. CCPR / C /21/ Rev .1/ Add.5 cited in http://www.unhchr.ch/tbs/doc.nsf/8e9c603f 486cdf83802566 f 8003870 e 7/fb7fb12c 2fb8bb21c 12563ed004df111 ?OpenDocument#5%2 F %20 See %20 note On 4 th January 2007 Cited from http://www.ohchr.org/english/law/indigenous.htm on 5th January 2007

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dilemma. The foregoing notwithstanding, recent trends and developments in Kenya18, SouthAfrica19,Botswana20 and Uganda21, among others, seem to suggest that time is perhaps ripe for the overturning of the domination of colonial land jurisprudence with much more progressive judicial interpretations which support community sovereignty over natural resources in a manner consistent with the UN Declaration on Permanent Sovereignty Over Natural Resources22. Yet in this euphoric state of possibility, the dichotomy between collective and individual land rights will need some rationalization in order to reengineer the reforms that must take place if Africa’s day under the sun will come to pass. 2.5 Collective and individual land rights One must trace the evolution of individual land rights from John Locke, one of Europe’s foremost philosophers who grew up during the century in which conflicts between Crown and Parliament and the overlapping conflicts between Protestants, Anglicans and Catholics swirled into civil war in the 1640s. His exposition on legitimacy of revolt to tyranny is particularly celebrated. Locke23 wrote against his protagonist Filmer and those who defended the divine right of kings. Royalty owned the land and claimed that the rights to it had been handed down in succession from Adam, the first man, who received them from God. Locke's counterargument was that God gave the earth to everyone in common and that in thi 18

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In Kenya, the Constitutional Court in Miscellaneous Case No 305 of 2004 Rangal Lemeiguran and Others VS . Attorney General, in an unprecedented move judged that an indigenous community, the Ilchamus, have a right to be represented in public processes that have a bearing on their livelihood and survival. It found that “ … Minorities such as the Ilchamus, have the right to influence the formulation and implementation of public policy, and to be represented by people belonging to the same social, cultural and economic context as themselves” (pg 76) In the Richtersveld case, the South African Constitutional Court held that the rights of an indigenous community survived the annexation of the land by the British Crown and could be held against the current occupiers of their land ( Alexkor Ltd v Richtersveld Community, Constitutional Court of South Africa, CCT 19/03, (2003).) In the Basarwa case whose decision was only made on 13 th December 2006, the Botswana Constitutional Court ruled that the forcefully evictions of the Bushmen from the Central Kalahari Game Reserve as unlawful and unconstitutional In her judgment, justice Unity Dow described the Bushmen as community with a unique rich culture, language and tradition. “ Its amaze me to realize that government that embraces such cultural value and a signatory of the International Covenant on Civil and Political Rights ( ICCPR ) has jeopardized its pledge to the convention. Even though the Republic of Botswana is not a signatory to the International Labour Organisation ( Con.169) on indigenous issues, it ’s sad to note that what thelose in culture is not restorable”. See http://www.legalbrief.co.za/article.php?story=20061218154843558 In the Ugandan case involving the Benet, a hunter gatherer group who had been evicted to pave way to conservation, Justice J . B Katutsi of the Ugandan High Court found the occupation of the land by the Uganda Wildlife Authority to be illegal and retuned the land to the Benet saying they were the “historical and indigenous inhabitants” of the land and were entitled to “stay and carry out economic and agricultural activities including developing the same undisturbed.” See http://www.actionaid.org/uganda/955.html cited on 5th January 2007 for more information on the Benet case The right of peoples and nations to permanent sovereigny over their natural resources was affirmed in the 1962 General Assembly Declaration on Permanent Sovereignty Over Natural Resources No 1803 ( XVII ), 14 th Dcember 1962. The term peoples to which this principle applies had in mind nation states within the context of decolonisation, but it is now equally understood to refer to people within a nation state. There thus exists both an internal and external dimensions. See Salomon M , The right to development: obligations of states and the rights of minorities and indigenous peoples , MRG , London, 2003, at page 35 In deference to standard practice in Locke scholarship, references to the Two Treatises of Government will indicate Treatise I or II , followed by Locke's paragraph number, followed by the page number in the 1993 paperback edition edited by Mark Goldie and published by Everyman.

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s state of nature and plenty, people are "all free, equal and independent, no one can be put out of this estate and subjected to the political power of another, without his own consent" (Locke II, 95, p. 163).1 According to him, two natural properties of men (and women) are given: (1) their ownership over their own lives (which he calls life) and (2) their ownership over their own labor (which he calls liberty). The full meaning of "property" according to Locke is "life, liberty and estate," where estate refers to the means of sustenance—food, shelter, land, and other goods (Tully 1980, 167). The problem Locke faced was to explain how men justified the private ownership and use of property they appropriated from the commons. The argument is complex but illustrate how the central Lockean appropriation of property through labor embodies a mystical creative act. For the sake of exposition, Locke divides history into two periods. The first is a state of nature and plenty in common in which the basic rules of property are developed. The second is one necessitating government, brought about by the development of scarcity and money. Life (self-control) and liberty (the freedom to work) are givens: Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say are properly his. Whatsoever then he removes out of the state that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. (Locke II, 27, p. 128) In the state of nature, a person acquires things by making them or mixing them with his or her labor. This is a simple ethic. Those who labor have a right to the fruits of their labor. Because they own their own labor to begin with, by irretrievably investing or mixing what they already own with what is not theirs but part of the commons, they make that part of the commons their own as well. The alternative would be to lose their investment: their liberty, which Locke likens to slavery. Locke imposes three ethical constraints on this acquisition process (Simmons 1992). First, one must take only as much as one can use before it spoils (Locke II, 31, p. 130). Second, one may take only as much as there is “enough and as good left in common for others (Locke II, 27, p. 128).” (In a state of plenty, there is enough in common that this taking harms no one, so that the issue of obtaining the consent of others for one's use is moot.) Third, "charity gives every man a title to so much out of another's plenty, as will keep him from extreme want, where he has no means to subsist otherwise (Locke I, 42, p. 31).” So why does labor have such power to play the central role in just acquisition? First, making something is like the act of creation, which was God's act of simultaneously making and owning His creation. One might say that God set the example. To Locke, speaking of creative human work also reflects the fact that the essence of the act of making something is intellectual. The maker's claim is not just to the energy of construction or mixing, but also to the idea that motivates and guides the action (Sreenivasan 1995). This is the essence of owning something, of making it one's own: It is a welding together of an idea and an action; it is simultaneously physical and intellectual, he argued. Lock’s ideas, less the ethical considerations he had prescribed, constituted the key building block upon which capitalism was constructed. It is from here that Maine was to present the irrefutability of the notion that customary land tenure is merely a stage in the historical evolution of societies from ‘status to contract’ (Maine, 1861). Fuelled by conclusions of legal anthropologists, it was thus indeed believable that customary land relations would wither away as Western civilization became progressively dominant in African social relations. The basic premise here being the conversion of land into a “good” of a private nature, capable of being subjected to market, like a common chattel. In this context therefore, negotiability of land would only be assured by creating different estates in land, for instance by separating possession from ownership. This is done by issuing a title, a paper representation of ownership. Ownership is not a relation between a person and a thing. It is a relation between a person and a person. Ownership of land means that the owner can exclude others from access to it. One’s right to own a piece of land means one’s right to exclude the whole world from it. And when the State guarantees one’s right to own, it undertakes to exclude others from it by law, the latter being the coercive force. 40

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At the height of capitalistic orgy of acquisition, socialism appeared in the scene to countermand it. As it were, Marxism thus was the very antithesis of capitalism, its extreme opposite. According to the socialist thought, original property was not only theft but robbery; forced and violent acquisition. Marx called it primitive accumulation, in the sense of original accumulation.24 2.5.1 Marxist model In the process of primitive accumulation, which included the gruesome slave trade and ruthless colonialism, force was the dominant agency. Force was the midwife of the birth of capitalism. ‘…Capitalism comes dripping from head to foot, from every pore, with blood and dirt (ibid, pg 112).’25 Upon the accomplishment of original property, freedom, Equality, and Property were held to be sacrosanct, hence facilitating exchange and transference in the open market. To the Marxist thus, land, in the ‘land struggle’ slogan was understood as the peasantry’s fundamental means of production, whose control had to be recuperated from the bourgeoisies. In this left-wing ideology thus the state, as the instrument of emancipation for the populace, held all the land, as in the case of the Soviet Union, or part of it, as in the Ujamaa experience in Tanzania. The populace just worked the land and derived sustenance from it. However, this experiment miserably failed as it took on the flawed character of the state in third world countries, and soon, corruption, such as in the case of Ghana under Nkrumah, begun to take its tool on the otherwise institutionalized attempt at egalitarianism. Moreover, socialism as a tool for rapid industrialization, which most African states perceived it to be, was therefore pursuing the wrong target, quite consistent wit capitalistic ideals. In any event, with the emergence of Gorbachev’s Perestroika, and the official collapse of socialism (it had been receding for years), capitalism became the singular dominant economic paradigm, with its alter ego, globalization and market based economics, taking their rightful place in the table of decision making. There are those who subscribe to the view that socialism and communalism are sides of the same coin, the former being a modern variant that responds better to the challenges and demands of modernity. According to them, in socialism, the principles underlying communalism are given expression in modern circumstances. “It is a form of social organization that, guided by the principles underlying communalism, adopts procedures and measures made necessary by demographic and technological developments26.” The irony is that this group holds that only under socialism can reliable accumulation of the capital needed for development is secured. The accumulation of capital appears thus to be an end and socialism a mere efficient means to its acquisition. Thus the embrace of the collective by socialism is pretended and not premised on real commitment to it. 2.5.2 The Alternative Thinking The above two schools of thought failed to appreciate that there existed a more coherent indigenous model, which espouses land more holistically. Indigenous peoples commonly prioritized self-sufficiency and food security over production for the market or for the state, guided by and emphasizing on the importance of social values, equity and reciprocity. The basic drivers of indigenous territorial understanding were the interrelated concepts in human survivals in scarcity: reproduction and production (Mkangi 2002) resulting to the development of a non-capitalists social formation. Thus, when African’s first met European colonialist land ownership became the first issue of confrontation. Many western anthropologists wrote that Africans did not have a concept of ownership. In A Preliminary Survey of Turkana: A Report for Compiled for the Government of Kenya, Gulliver (1951) argued that Turkana a pastoralists’ in Kenya had no “sense of work” (ibid p. 85) nor the “sense ownership” (ibid 62). On the 24 25

26

Marx, Capital, vol. 1, Part VIII Ibid, pg 112 Nkrumah K . 1967 “ African Socialism Revisited”, in Africa: National and Social Revolution , (1967) Prague, Peace & Socialism Publishers cited on 5 th January 2007 in http://www.marxists.org/subject/africa/nkrumah/1967/african-socialism-revisited.htm

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contrary, the Turkana owned land just as they owned livestock. Men owned animals; they decided when to kill or gave them out as gift (ibid 78). There are many different kinds of ownership, individuals both men and women owned; men collectively owned “staked claims” on animals, water trough while women owned anthills and claimed stake on milk animals Turkana cosmos is owned by Turkana men the Mountain and the Leopard, all birds, fish, and vegetation are divided among them. However the idea of collective ownership and sharing remains supreme, with the individual’s rights ending where collective rights begin. Failure to respect these rights especially collective rights has caused many conflicts. It must therefore be restated here that land within the indigenous paradigm was held as a collectivity, out of a coherent logic based on the desire to pursue both the attainment of basic human needs as well as maintain the solidarity of the group by way of cultural integrity. Yet, development specialists often ignore indigenous visions of land and development in favour of narrow, ‘productivist’ goals. Recognition of communal tenures implies considerable economies of administration, but land administration units dealing with indigenous peoples are nevertheless often under funded and of weak capacity. Competing pressures on indigenous lands have discouraged states from effecting land regularization and international agencies often pursue contradictory development policies, promoting indigenous peoples’ rights with small-scale projects while supporting broad national reforms that result in indigenous peoples being dispossessed (Colchester, 2001, pg.5) For instance, the Himba people, a pastoralists’ community in Namibia buries its people on the banks of river Kunene, which borders Namibia and Mozambique. Investors have been interested in the waterfalls on River Kunene for development of Hydro-Electric Power plant. To the community, the water fall is its sacral epicentre because the communities’ ancestors are buried beside the grave waterfalls. Because of this building a hydro-electric power plant at Epupa has been difficult. ‘This is the land where we are grazing our animals and where our graves are,". [The government] know very well that this place is not for them; this is for the Himba people… building the dam will cause the river to die. God created the Himba to stay near to the Kunene River so that they can graze their cattle there, and so that they can take the water out of the river of Kunene…The dam at Epupa will not be built while I am still alive, while I am still speaking.’27 From the case the basic drivers on collective territory are interrelated concepts in spiritual nourishments, human survivals reproduction and production resulting to the development of a non-capitalists social formation. This has not been lost to many in African people despite colonialism and destruction of Africa’s tradition education and its earth jurisprudence. However, drive to re-invent relationship between spiritual and spatial in some Africa now commercial centered. Movements to protect sacred sites are no longer guided by spiritual potency but greed to turn such sites into touristic monuments. Kaya and Mijikenya People: A Case of Commercializing Spirituality This is the story of the Mijikenda people (nine ethnic-subgroups) and their Kaya’s (sacred shrine) at the Kenyan coast. Today over 50 of these patches have been identified in the coastal towns of Kwale, Mombasa, Kilifi and Malindi but in a vision keen to ‘commercializing spirituality’ different government authorities are fighting to take control of the shrines for touristic purposes. The Mijikenda people were forced into the Kenya’s Coastal town around 17th Centaury through constant attack to their lives by the Orma and Gala a pastoralists’ community. The continued attack on the Mijikenda people by the pastoralists’ community forced them to establish fortified villages in hilltops and call it Kaya. As the security situation improved in 19th century, most clans moved begun to cultivate portions of land a way from the Kaya’s. The ‘original home’ which constituted Kaya including the perimeter forests remained under the custody of Kaya elders as sacred place for burial and traditional ceremonies. Kaya forests are residual patches of measuring 10 to 400 ha of the one extensive coastal lowland; they are of high biological diverse ecosystems and have high natural conservational values. Cutting tree is prohibited by Mijikenda indigenous laws. Whereas many adjacent lands are turning into farm lands the Kaya have maintained their status. Of the 1745 ha of Kayas known to have existed only 325ha have been lost to agriculture and properties development however, the remaining are under profound pressure. Table 2: Commercializing Spirituality

27

The Himba's chief, Capicka, on http://news.bbc.co.uk/2/hi/africa/3027056.stm

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Cultural link between the story of creator and territory or between ancestors and territories forms the basis of collective rights. Cultural rights are dependant on the land as a principle form of people’s territories. Spiritual practice and religious ceremony also form a principle and integral part of land, land resources and ecological governance. In the indigenous cosmology, there is no separation between the collective, and land and the sacred. Clearly thus, identifying with, knowing, and balancing rights is the hallmark of group ownership. For centralized systems such as that of the Zulu and many communities in Ghana (see case study above), territories were the dominions of the ruler (king or chief) holding it in trust for well-being of subjects. For non-centralized authority system every subject had a stake in use but had no authority of disposal of land, while a council of elders arbitrated on conflicts and held collective spiritual sites in trust for the community (e.g. Kikuyu). Spiritual link, human survival, mode of production and ecological governance conditions were important to influence the mode and nature of use of natural resources (read pastoralisms’) the mechanics of production was small scale less expropriating. Communal relation in a territory therefore seeks to balance between human survivals – physically and spiritually and ecological governance (environment). These interrelations raises four core principles linked to collectively held territories: People’s culture (spirituality, values, norms and customs); people’s livelihoods; people’s land the link and land ecological Governance. These principles are interrelated that loss of one means loss of the others. As a principle resource, collectively held lands in Africa revolves around inherently and inextricable trilogy of rights:  Land rights are in alienable;  Land rights are indivisible;  Land rights are perpetual; Ironically, over three hundred years after the Lockean revolution, communal tenures are once again gaining favor as a means to secure biodiversity, environmental services and values. Community-based forest and wildlife management has begun to be accepted as a viable means of managing natural resources and even conservationist agencies have accepted that indigenous rights must be respected in protected areas. Communal tenures have historically been seen as obstacles to development but new data question these conclusions. The World Bank, IDB and ADB, though not the AfDB, have all adopted programmes to promote indigenous rights. However, this interest is curious, and must be interrogated more, a task which the following chapter will attempt to pursue. Africa’s future hope and purposeful present therefore is linked to its people’s unity and resolve to hold these principles and exercising these rights.

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CHAPTER THREE 3.1 The Last Assault on Collective Territories The perception of Africa as a poor, weak kneed continent has not changed. However one can sense urgency, not necessarily borne out of Africa’s need, to mainstream the continent economically vide a legion of initiatives, including Poverty eradication strategies, Millennium Development Goals (MDGs), World Trade Organization (WTO) and other globalizing perspectives. Africa is part of Global society but still “fishing for solutions of its problems from elsewhere (Mbiti, 1969)”. These solutions seem centered on alleviation of poverty and extreme hunger, two major challenges to African population. As a result Africa has become a guinea pig for the rest of the world to test their models of development. Indeed, it is no-longer just the Western nations but the East through China, Japan, and India who have come with open purses and Africa, is ready to go shopping with all by opening up its doors to free trade and unregulated market forces. One should thus see the ongoing interest on communally held property as an attempt at conquering the unchartered territory, which, for historical reasons, colonial processes were never quite unleashed. For instance, according to Paul Goldsmith (2004) by 1920,Kenya’s landscape had been neatly configured into zones of white settlement, tribal reserves, and the Northern Frontier District- “…the large expanse of northern rangelands w hose main function was to act as spatial barrier to Abyssinian and Italian encroachment” Goldsmith notes that the British adopted an essentially laizzez faire policy towards Kenya’s pastoralists, w ho for the most part passed the remainder of the colonial era in conditions of splendid isolation and benign neglect. As in other remote areas of Africa, this represented the most expedient and least expensive w ay of governing the vast but economically marginal tracts of their regional empire Northern Kenya, for example was viewed as a difficult posting, and thus attracted the kind of rugged individual who shared with the explorers and sportsmen w ho preceded them a certain desire to place them selves in challenging situations. As Brown remarks, the North w as: "Not a place for faint hearts and spirits, it was a country intolerant of those who lacked resolve and cynical of those who tried to change it ways. Its obstacles were regarded by many as a testing challenge, by others a thrilling adventure; and for a few, a task to be treated with an earnest dedication. The administration of the Northern Frontier District was certainly never a light undertaking (1989, 316). Curiously, it is these God forsaken territories, until now managed by customary law in a communal sense that are attracting the greatest attention of transnational investors of all genres 3.2 The final Scramble and Partition for Africa Reforms are replete everywhere in Africa today. Reforms in (a) “agricultural best practices” aimed at mostly improving quality of products for export, reforms in (b) extractive industries and tourism to liberalize the sectors; reforms in (c) sustainable environment and common heritage (water sources, wild life, and wetland e.t.c.), (d) land reforms, and (e) mining reforms are (f)key interrelated reforms. Examples of countries in subSaharan Africa states - Lesotho, Namibia, Tanzania and Kenya are undergoing land policy process. Zimbabwe economy has been affected by land reforms. Kenya, Mauritania and Tanzania are in the process of reforming their mining policies; tourism is equally being redefined to conform to main global demands. In typical fashion reminiscent of the “agrarian revolution in Europe” and colonialism in Africa, African land today are being transformed, yet again. Agrarian revolution in Europe “enclosed” and mobilized land; mechanized Agriculture - pushed population from land to market and created rapid urbanization. Why all these efforts in Africa? 1) One of the raison detre of colonial occupation was to use Africa as source of raw material; hence African territories were administered as extension of the colonizing nation. This ensured availability of cheap labour and raw material for demanding industries of the western capitals. Independence came too soon for many Africa and this interfered with long term agenda of colonialism. The focus shifted to transforming Africa into market place for industrial product of the west. The essence has been to increase “capitalist penetration 44

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(Makoloo 2005)”. The last item to come within the capitalists fold is collectively held territories, hence the current scramble. 2) According to Hernando De Soto28, the most-sought after consultant by ‘poor’ countries, who supplied the mechanism for turning trillions of dollar “worth of assets of the poor”, ,unless the poor of the Third World are brought into the capitalist mainstream, West’s capitalist civilization is at risk (De Soto 2003). ‘In the business community of the West’, he says, ‘there is a growing concern that the failure of most of the rest of the world to implement capitalism will eventually drive the rich economies into recession (Ibid pg. 3). 3) Poverty alleviation and elimination of extreme hunger is yet another reason for pursuing broad based reforms on land. It is hoped that developing nations using their natural resources, will tame suffering brought about by escalating natural calamities (droughts, floods among others) and mitigate resource based conflicts. 4) Interest on common held territories is further manifested through the considerable funding for researches and reform from both multi lateral agencies and bilateral donors targeting tourism, forest and catchments areas as well as the mining sector to name but a few. For instance, increase in tourism sector funding has been tremendous. Between 1980 and 1992 tourism in developing countries increased from 3.0% to 12.5% (WTO in Burns and Holden, 1995). Tourist destinations are increasing under the eco-tourism and private sanctuaries where communities are encouraged to partake in the venture as part of poverty eradication. The challenge is that most of the communities have no funds to set up the eco-tourism and private sanctuaries and conservancies. The best of the sanctuaries belong to individuals from the western counties and conservancies compete for revenue with government held wildlife sanctuary. Similarly, Sub Saharan Africa has experienced a growing boom in the mining sector investment, which more than doubled between 1990 and 1997. Africa showed the biggest growth nearly 60% mining exploration in 1997 compared to any region in the world, during the same year, over US$ 10 billion of Foreign Direct Investment (FDI). According to Metal Economic Group (MEG) of Halifax Nova Scotia, Canada, some US$662.6million representing 16% of total exploration budgets of the leading 270 companies were to be spent in Africa in 1997, in comparison to US$417 million in 1996,US$320 million 1995, and US$199 million in 1994. The boom which remained outlawed in many countries in 1980’s boosted small scale mining. The number of small miners keeps increasing as government downloads mining companies to private hands who often lay off skilled work force. In Zimbabwe small scale miners amount to 600,000 are engaged in gold and gem stone production. 200,000 miners are responsible for entire diamonds production which is approximately 2% of total gold output. Similar sector contribute for supply of minerals in Tanzania, Sierra Leone, Burkina Faso, the republic of Congo, the Democratic Republic of Congo e.t.c The Chinese for instance have lately taken a keener interest in oil exploration in sub Saharan Africa – regarded as one of the fastest growing oil arenas in the world oil. In an unprecedented act of generosity, the government of Kenya in April 2006, gave the state-owned China National Offshore Oil Company Ltd (CNOOC) exclusive rights over a total of six out of 11 available blocks, including the hotly contested Blocks 9 and 10A in the Mandera area of Kenya’s Northern frontier district, where land is held in common by the Local authority in trust for communities. So dominant has China become in the oil exploration scene in Kenya that CNOOC alone now controls 28 per cent of the total exploration acreage in Kenya. Kenya has emerged as the latest frontier in the ferocious global battle between Europe and China for oil resources has resulted to two major European oil exploration companies (Compania Espanola de Petrolas (CEPSA) and Sweden’s Lundin International) to protest that they are unable to access Kenya. Compania 28

De Soto’s outfit, the Institute of Liberal Democracy, is involved in a million-dollar project in Tanzania to assess and create the legal framework for the registration of the ‘assets of the poor’. In the typical Tanzanian style the project has been given a Swahili acronym, Mkurabita

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

Espanola de Petrolas (CEPSA) of Spain, the first to apply to the Kenyan government for the two sought-after blocks, was until last year 2005 considered a frontrunner in the race for the coveted Block 9 and 10A when the Chinese jumped into the fray Beside mining and tourism, land transformation through adjudications and land policies has received extensive donor support. In 1970’s group ranching process in Kenya was supported by World Bank. Since the coming of Structural Adjustment Programmes of the 1980’s, governments in Africa have been under pressure from the World Bank and the international Monetary Fund to privatize land and create enabling environment for investment. In addition there has been support for reforms to the energy sector and extractive industries. All these reforms are designed to rationalize the privatization of territory. A few concrete cases will be presented in the following section to verify the foregoing postulations 3.3 Case Study 1: A Closer zoom on the assault on pastoral commons in Africa Pastoralism is a livelihood system in the arid and semi-arid land of Africa, Asia, Australia and America’s and a livelihood that is heavily reliant on livestock interacting with the natural environment such as grassland. Pastoralism for instance survives even in the extremities of climate zones that range from semi-arid to arid, high temperatures and low elevation. Aridity occurs where the rainfall is insufficient to replenish the loss of moisture: less than 500mm a year makes for aridity, 500mm to 750mm for semi aridity. More than half Africa’s total land areas, approximately 1,300 -1, 6000 million hectares is devoted to animal husbandry and some 50 million people in Africa are either wholly or partially dependent it (Bos & Peperkamp 1989:32) There are more than 120 ethnic groups relying on pastoralism making the largest population of pastoralists to be in Africa. Approximately 50%-60% global pastoralists’ population is found in Africa, 25-30% in Asia whiles the America’s 15% while Australia 1% percent. From the second millennium B.C. Africa’s Nomadic pastoralism has developed locally in an almost continuous band from Atlantic and Indian Ocean in African savanna and steppe zones (Unesco/UNEP/FAO1979: 265). This constitutes three main Africa pastoralists’ zones: Nilo-Saharan; Afro-Asiatic and Congo-Kordofanian, which constitute 12 subgroups with several clusters of related pastoralists’ ethnic groups. For example the NiloSaharan group is subdivided into: Saharan, Nubian, Beir, West Nilotic, East Nilotic and south Nilotic subgroups. The Eastern subgroup is composed of Karamojong and Maasai cluster. The Maasai, Samburu and the agro-pastoralists Njemps and the agricultural Arusha people belong to Maasai cluster (Rutten, 1992). Generally unregulated lands using the Romanic or Mosaic laws constitute the bulk of communally held territories in which pastoralism is practiced. Example of such territories are land held in trust by local authorities in Kenya, Tanzania, Ethiopia, Nigerian, which are ostensibly managed and territory managed by traditional laws etc. The transference of custodianship over collectively owned pastoral territories from traditional governance structures to the state has seriously undermined the pastoral systems, and exposed pastoral lands to further expropriation for wildlife sanctuaries, water catchments areas, gazetted forests, mining lands, military training grounds etc. According to Rutten (1992) who has undertaken extensive research work in Kajiado, one of the three Maasai districts in Kenya, grazing land had reduced by well over 40% over the period 1982 and 1992, particularly due to the imposition of the Group ranching model of land ownership. It is thus curious that some scholars have indicated that poverty in Kajiado district can be reversed if the process of group ranching is expedited. KabuboMariara, investigated the relationship between rural poverty, property rights, and environmental resource management in Kajiado using analysis of survey data and found that reduced environmental degradation would increase agricultural productivity, and which will then translate into lower levels of poverty as incomes and consumption expenditures rise. Kabubo recommends that there was need to speed up privatization of the remaining group ranches so that the community could enjoy the benefits of private property. Failing that then 46

Focus on Land Rights and Poverty alleviation strategies in Rural Africa

the existing common rights systems ought to be enhanced in-order to boost productivity and reduce poverty (Kabubo 2002, pg 31) 3.4.1 Case study 2: Privatization in Tanzania: NAFCO VS. Vulnerable Communities It has been said that "…The economic and social costs of privatization process in Tanzania has outweighed the benefits accrued from the whole exercise” In his recent speech Minister of state in President's Office Mr. Nasoro Malocho said 295 parastatals have been privatized out of 395 earmarked for privatization. He mentioned the weaknesses of the privatizing institution, difficulties to get credible buyers, treatment of retrenches in terms of their benefits, valuation of assets and how to assist the indigenous Tanzanians in the whole exercise, as among the problems29. One such case stands out; the most notorious incursion of common property by the government parastatal (National Agricultural and Food Cooperation N.A.F.C.O) which compulsorily acquired lands to introduce large scale farming for wheat. The two minority communities to have been affected this government policies are Dagota/Barabaig (derogatorily refereed to as Wamang’ati) who are nomadic and Iraqw (Known as Hadzabe) who are hunter-gatherers. The Dagota are highly migratory and live across four regions i.e. Arusha, Singida, Shinyanga and Dodoma.30The Dagota have in many occasion been attacked by Tanzanian regime. Not only because of their migratory ways of life, but also in bids to expropriate them of their land in a form of modern “primitive accumulation of capital”31 The same account records that in pursuing this exercise, the Police and semi-military Field Force Unit (F.F.U) were unleashed on innocent citizens and their houses burnt in order to provide room for N.A.F.C.O. to establish wheat firms to feed breweries and bakeries.32 Residence of the Dakotas led to serious brutalization and violations of their fundamental rights and freedoms in the hands of the coercive state apparatus. The community went to court to challenge the decision in the case of Mulbadaw v. NAFCO, the High Court decided in their favour on the ground that the ‘due process’ under the Land Acquisition Act had not been followed. The villagers entered their land to repossess it. NAFCO appealed and filed a stay of execution. The Chief Justice expeditiously granted it. The Field Force Unit as expeditiously evicted the villagers forcefully for the second time around. On appeal, the appellate judges agreed with the High Court that customary rights could not be acquired without following the processes under the Acquisition Act, but decided against the villagers on the ground that they had not produced evidence in the High Court to show that they were ‘natives’ and only ‘natives’ could claim customary rights. The dispute was not resolved. Since then the Hanang people have filed several court cases through the Legal Aid Committee but most have failed because of various technical reasons. Meanwhile, a new element has appeared. NAFCO is a specified corporation to be privatized by the privatization agency, the Parastatal Sector Reform Commission (PSRC). Peasants are demanding that the NAFCO land should be returned to them. The State is saying it is not in ‘public interest’ to do so. Public interest demands that they be privatized. Against NAFCO, peasants could complain to the president and the prime minister and the party and file human rights complaints to shame the State. But when the Hanang lands have been sold to a private investor, most probably a foreign company, where will they complain?

29 30

31

32

See http://www.hartford-hwp.com/archives/36/346.html See KESB Y , John D., The Cultural Religions of East Africa, London/New York and San Francisco: Academic

Press, 1977,pg 68 and 95 Prof Chris Maina Peter: Racism, Racial Discrimination, Xenophobia and Related Intolerances in Tanzania: A

paper presentedat the East African Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerances organized by East African Law Society ( EALS ) in Arusha, Tanzania on 9 th and 10 th August 2001. Ibid

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

3.4.2 Case Study 3: Resource conflicts and decaying role of the state: Case of the Niger Delta and the Ogoni struggle The government of Nigeria has been directly involved in oil production through the State oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC). The oil consortium has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards. The consortium has also neglected and/or failed to maintain its facilities causing numerous avoidable spills in the proximity of villages. The resulting contamination of water, soil and air has had serious short and long-term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems. The Nigerian Government has condoned and facilitated these violations by placing the legal and military powers of the State at the disposal of the oil companies and has neither monitored operations of the oil companies nor required safety measures that are standard procedure within the industry. The Government has withheld from Ogoni Communities information on the dangers created by oil activities. Ogoni Communities have not been involved in the decisions affecting the development of Ogoniland. The Government has not required oil companies or its own agencies to produce basic health and environmental impact studies regarding hazardous operations and materials relating to oil production, despite the obvious health and environmental crisis in Ogoniland. The government has even refused to permit scientists and environmental organizations from entering Ogoniland to undertake such studies. The government has also ignored the concerns of Ogoni Communities regarding oil development, and has responded to protests with massive violence and executions of Ogoni leaders. Nor does the Nigerian government require oil companies to consult communities before beginning operations, even if the operations pose direct threats to community or individual lands. ILO 169? The acts and omissions of the Nigerian state and its collaborators, the Shell Corporation was the subject matter of intense arguments in a communication filed by the Ogoni community at the African Commission on Human and Peoples Rights33: 1. The Communication alleged that in the course of the last three years, Nigerian security forces had attacked, burned and destroyed several Ogoni villages and homes under the pretext of dislodging officials and supporters of the Movement of the Survival of Ogoni People (MOSOP). These attacks had come in response to MOSOP's non-violent campaign in opposition to the destruction of their environment by oil companies. Some of the attacks have involved uniformed combined forces of the police, the army, the air-force, and the navy, armed with armoured tanks and other sophisticated weapons. In other instances, the attacks have been conducted by unidentified gunmen, mostly at night. The military-type methods and the calibre of weapons used in such attacks strongly suggest the involvement of the Nigerian security forces. The complete failure of the Government of Nigeria to investigate these attacks, let alone punish the perpetrators, further implicates the Nigerian authorities. 2. The Nigerian Army had admitted its role in the ruthless operations which have left thousands of villagers homeless. The admission is recorded in several memos exchanged between officials of the SPDC and the Rivers State Internal Security Task Force, which has devoted itself to the suppression of the Ogoni campaign. One such memo calls for "ruthless military operations" and "wasting operations coupled with psychological tactics of displacement". At a public meeting recorded on video, Major Okuntimo, head of the Task Force, described the repeated invasion of Ogoni villages by his troops, how 33

African Commission on Human and Peoples Rights, Communication 155/96 The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights / Nigeria

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

unarmed villagers running from the troops were shot from behind, and the homes of suspected MOSOP activists were ransacked and destroyed. He stated his commitment to rid the communities of members and supporters of MOSOP. 3. The Communication alleges that the Nigerian government had destroyed and threatened Ogoni food sources through a variety of means. The government has participated in irresponsible oil development that has poisoned much of the soil and water upon which Ogoni farming and fishing depended. In their raids on villages, Nigerian security forces have destroyed crops and killed farm animals. The security forces have created a state of terror and insecurity that has made it impossible for many Ogoni villagers to return to their fields and animals. The destruction of farmlands, rivers, crops and animals has created malnutrition and starvation among certain Ogoni Communities. The Commission found in favour of the Ogoni community arguing that Governments had a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties (See Union des Jeunes Avocats /Chad34). This duty calls for positive action on part of governments in fulfilling their obligation under human rights instruments. The practice before other tribunals also enhances this requirement as is evidenced in the case Velàsquez Rodríguez v. Honduras35. 2 In this landmark judgment, the Inter-American Court of Human Rights held that when a State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized, it would be in clear violation of its obligations to protect the human rights of its citizens. Similarly, this obligation of the State is further emphasized in the practice of the European Court of Human Rights, in X and Y v. Netherlands36.3 In that case, the Court pronounced that there was an obligation on authorities to take steps to make sure that the enjoyment of the rights is not interfered with by any other private person. But even with this decision, Shell Corporation and the Nigerian state continue to abuse the territorial human and environmental rights of the Ogoni indigenous community. 3.4.3 Case Study 4: Conservation casinos: The Bwindi Mgahinga impenetrable forest and the Batwa predicament Internationally, tourism is the largest economic sector in terms of earnings, and in terms of number of people employed. International tourist arrivals in 1995 were 563 million and are expected to reach 1.6 billion by the year 2020. These forecasts use a conservative growth rate of 4.3% and 6.7% respectively; less than the current growth rate. They do not include any domestic tourism which can readily be anticipated to equal the international. It is obvious that most of this increase will have to be absorbed by cities, (World Tourism Organization). In terms of revenues, this would easily translate to billions of dollars yearly. In the 1960s, for example, tourism earned 'only' US$6.8 billion. In 1997, revenues jumped to US$448 billion. By the year 2000, the WTO predicts tourism earnings to reach $621 billion and by 2010, a whopping $1.5 trillion. At both global and national scales, tourism is the fastest-growing economic sector today. Here are some basic fact about the tourism industry to highlight its importance, and impacts: In 1998, it accounted for over 10 per cent of the world GNP and directly or indirectly for 200 million jobs worldwide. In 2000, 700 million people visited a foreign country - 62% of them for leisure, accounting for US$ 478 billion of international receipts/revenues. 34

35

36

African Commission on Human and Peoples Rights, Communication 74/92 See, Inter-American Court of Human Rights, Velàsquez Rodrígeuz Case, Judgment of July 19, 1988, Series C , No. 4 91 ECHR (1985) ( Ser. A ) at 32.

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

Tourism is one of the five top export categories for 83% of countries, and the main one for 38% of them. Tourism employs 3% of the total global workforce (8% if indirect/informal jobs are included, or one in every 12 workers). In France, the world's number-one tourism destination, tourism accounts for over 7% of GDP Third World countries view tourism as a shortcut to rapid development. Its potential to earn billions of dollars easily has resulted in it being viewed as a panacea for debt-ridden countries. But more than this, tourism has become part and parcel of multilateral financial institutions' package for financial bail-outs for countries in distress. Tourism is now being pursued as a serious development strategy for the Third World. The International Monetary Fund (IMF) has included tourism as part of its Structural Adjustment Programmes (SAPs). The SAPs, which are preconditions for the approval of financial assistance, require the indebted country to: be integrated into the global economy; deregulate and liberalize its economy; shift from an agriculture-based to a manufacturing and service industry-based economy; and liberalize its financial sector37. The above status explains the context within which Uganda government presided over the blatant displacement of the Batwa forest community in Bwindi forest to pave the way for tourism. Mgahinga Gorilla National Park was originally established as a forest reserve. It was later gazetted as a gorilla sanctuary managed by the game department.38 In 1941 the area was upgraded to a game reserve39 and in May 1991 it was elevated to National Park status so as to protect the gorilla population and the forests that were greatly undermined by the high rate of forest clearing caused by the high population levels in the area.40 The park boundaries were aligned on the original boundaries of the gorilla game sanctuary and the name of the park was subsequently changed to Mgahinga Gorilla National Park.41 Because of the proximity of the two parks to each other and similarity of conditions and challenges of management, Uganda Wildlife Authority placed them under one management unit called Mgahinga Bwindi Conservation Area. For the Batwa communities, they were uprooted from the forest and exposed to the vagaries of a cash economy largely characterized by settled agriculture. The majority of the Batwa live in very poor housing conditions characterized by makeshift housing structures made of sticks, mud and grass -thatched roofs. The houses are often overcrowded with several extended family members living in tiny dwellings.26 Worse still, when it rains, their houses often leak. The Batwa people consider it normal for rainwater to leak into their huts, which demonstrates their pathetic situation and state of despair.27 A medical needs survey undertaken in 1999 observed the lack of safe drinking water, latrines, schools, clinics, and access to government health care facilities as the major problems faced by the Batwa. For example, the child mortality rate for Batwa was 41% while for non-Batwa was 17% while infant mortality rate for Batwa was 21% and for non-Batwa 5%.3 The Batwa thus suffer double jeopardy; Displacement implying lack of access to indigenous medicine, herbs, food etc and landlessness demonstrating the ultimate measure of vulnerability. At the same time, nonacceptance by ‘modern’ systems implies lack of access to services required by the displaced, landless group, also reinforcing further exploitation. 37 38 39 40 41 2 2 3

See http://www.twnside.org.sg/title/chavez-cn.htm Legal Notice No.21 of 1930. Statutory Instrument No. 216 of 1964 as amended by Statutory Instrument No. 136 0f 1965 Statutory Instrument Opcit Statutory Instrument No. 27 of 1991 as amended by Statutory Instrument Supplement No. 3 of 1992. Field data Field data Rudd Kristina (2002) “ Development and Primary Health Care in under served Populations: A case study of the Work of Dr. Scott and Carol Kellermann “ ( Unpublished)

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

But the major economic problem facing the Batwa is limited access to land and insecure land tenure. In a 1996 study by Kabananukye, it was found more than 82% of the Batwa were landless while a small percentage occupied land as private owners (about 74 households). About 9.4% occupied land belonging to the government, 10% were living on church of Uganda land while 80% lived on land belonging to private land landlords. Most of the Batwa work as laborers on the farms of neighboring communities and do not receive payment for their labor other than the right to stay on the landlord’s property, cultivate a small piece of his land and receiving handouts of food and old clothing.4

Some governments are giving away forests to investors with the basic assumption that the investment is part of the road map out of "poverty".

4

Information from ACODE field trip

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Focus on Land Rights and Poverty alleviation strategies in Rural Africa

CHAPTER FOUR 4.1 Unveiling and Interrogating the Drivers of Territorial Transformation in Africa The process of transforming territories in Africa is not set in space it has as stated drives. Different players and actors have been playing different roles and have different interest and power as shown herein in the analysis. 4.1.1 Stakeholder Analysis The table below shows an assembly of individuals and institutions that directly or indirectly influences impact on territories and its attributes. The table is not an absolute but it is the authors’ way of presenting a complex scenario of actors’ interest and relationship in a simple schematic. The analysis lists the prospective stakeholders therein, identify their interests, determine their impact based on their inherent powers or lack of it to generate participation matrix of stakeholders. The stakeholder influence and importance’s is measured on scale as follows {1=low priority influence; 2=medium priority influence; and 3=high priority influence}. Interests have been weighed against neo-scramble and partition of Africa’s Common held territories. For instance the table shows that should the neo-scramble and partition of Africa’s common held territories continue unchecked, it will have negative effects on the on citizen’s of Africa – in their livelihoods-food security, decision making and spiritual life among other interest. On the other hand, African governments as institutions are set to benefit from unchecked acceding of territories for investments, albeit in the short run. However, in this case Africa’s state sovereignty is highly threatened. Since most African states lack coherent policies on privatization and investments, the processes have tended to be whimsical and have constituted massive breeding grounds for grand corruption42. Equally, the need to check or engage in the process is a high priority as shown in the table. In the second instance the multi lateral donor’s interest of ‘creation of an enabling environment for investments’ and ‘deepening capitalism’ are best served if the neo-scramble and partition of Africa’s territories common held territories is carried out without hitch. Neo-scramble and partition of Africa’s common held territories to the multilateral donors is a medium term priority and depending on geopolitical factors such as the war on terrorism and the pursuit of alternative sources of energy for the west, could become top priority. Like African citizens’ unchecked neo-scramble and partition of Africa’s can affect the mandate of the social movements. But, in social movements and citizens, an alliance of the oppressed can be built to protect national sovereignty and ensure sustained community access to natural resources.

42

Fatal Transactions campaign has for instance documentedcases of corruption on in the DRC mining sector. See www .osisa.org/files/transparency_cd/NIZA /the %20state%20 vs.pdf

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Stakeholder Analysis Primary Stakeholders

Interest on territories

Citizens

Livelihood -Food security;

Neo-scramble and partition of Africa’s Common Held Territories (-ve)

Participate in decision making on their territories; spiritual

(-ve)

Governments

Investment; Alleviate poverty - Food security; Sovereignty;

(+ve) (+ve) (-ve)

Secondary Stakeholders

Interest on Land

Multi-lateral – World bank, IMF,

Create enabling environment for investment;

Neo-scramble and partition of Africa’s Common Held Territories (+ve)

Bilateral & Bilateral Agencies

Protect national investment abroad;

Multi-national

Social movements43:

Priorities Of Interest

Type of Power

(3)

Political Power: Social movement, political organization and legitimacy

(3)

State Power: Executive and Judicial Power

Priorities Of Interest

Type of Power

(2)

Economic Ideological power: Cooperation, judicial and financial structure

(+ve)

(2)

Economic Ideological power: Diplomatic muscle, judicial and financial structure

Protect national interest abroad;

(+ve)

(2)

Create investments a broad;

(+ve)

Economic Ideological power: Cooperation and ‘financial muscle’

Profit making

(+ve)

Develop social dimension;

(-ve)

(2)

Protection of social dimensions;

(-ve)

Social Power: Social movements, Intellectual, research, civil association and political organizations

Deepening capitalism

(+ve)

Create investments a broad;

Table 3: Stakeholder Analysis Driving the Neo-scramble and partition of Africa’s Common Held Territories

43

World Social For a ( WSF ), Indigenous Movements, Environmental Movements, Land Alliances, Housing alliance, Traditional religions, Bio- diversity Network

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4.1.1.1 Primary Stakeholders From the above, there are two types of stakeholder - primary and secondary stakeholders. The primary stakeholders are composed of African governments and its citizens inhabiting the common held territories. Both governments have different legitimate claims; where the governments have political sovereignty within the four corners of a state and enjoys legitimate claim to control its territories on behalf of its citizens, the citizens on the other hand have ‘birth rights possession or ownership’ viz a viz territories. Nevertheless the two are under external as well as internal pressure to relinquish claims on common held territories or change their legitimacy. Governments in Africa have a unique status of being ideologically vulnerable despite being sovereign. Because of this unique arrangement in which collectively held territory is vested in the state or its agency in trust for the people, governments in Africa are under constant pressure to relinquish custodianship of commonly held land by way of privatization of their ownership, and accelerating investments. Privatization is said to be the answer that will address poverty of the African population. In such arrangement it is the inhabiting citizens who get sacrificed at the expense of nationalistic interest and therefore are less involved in negotiations. Sovereign states have an obligation of securing and protecting their citizens’ rights both living and the unborn. However, African governments have tendencies of negotiating themselves for short term gains. For instance most multi-national mining and oil explorations in Africa have not been carrying out activities without adequate compensations or consultation of communities nor do they need to procure communities’ prior informed consent. This contrasts sharply with the case of Alaska in Canada where the interest of indigenous communities is foremost protected from one generation to another. In African however, interests’ of future citizens is always never anticipated by governments which negotiate deals on behalf of citizens and are forever under pressure to only look at the basic demands of present generation of displaced Africans. For instance Tiomin Company, a Canadian cooperation, currently negotiating for the mining of titanium in the Kenyan coast is pursuing a deal where it only compensates local communities for displacement without having safety nets for the future generations of the local community44. In Nigeria past negotiation have become source of constant conflict between communities and investing companies often leading the Nigerian government to apply force against its citizens to ensure compliance. Where interests of future generations appear better secured through external intervention, African government pull out the sovereignty card, to defeat this purpose. For instance, the recent refusal by the Chadian government of an arrangement where petroleum extraction proceeds for its country was to be deposited in a special account in London for accountability purpose and to be used for specific social development projects. The Chadian authorities argued that such an arrangement contravened its sovereignty45. In all these arrangement, it is the poor displaced citizens who lose out while the investor and state interests are ultimately the most protected. 4.1.1.2 Secondary Stakeholder Whereas the primary stakeholders are powerless in capacity, financial resource and solidarity of purpose, the secondary stakeholders on the other hand have the advantage of ‘soft and hard power’. The secondary stakeholders have ideological instrument of power – laws and definitions; social support for each other, political power and financial resource. An analysis of the secondary stakeholders shows that this group is divided into two – market oriented movers and shakers and social transformative groups. 44

45

See http://www.tiomin.com/s/NewsReleases.asp?ReportID =163603 &_Type = News-Releases&_Title= Rulingin-Favor-of-Tiomin-to-Obtain-Access-for-the-Construction-of-the-Kwal ...cited on 5 th January 2007 for further information on the Tiomin deal See the story on http://www.washingtonpost.com/wpdyn/content/article/2006/07/14/ AR 2006071401409. html, cited on 5 th January 2007

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The market oriented group led by multi-lateral donor agencies and transnational capital enterprise has as its main instrument of power its global presence. In addition the multi-lateral agencies have perhaps the capacities and coercive force against states that don’t take multi-lateral prescriptions and remedies. For instance multilateral donors using land played a largely ambiguous role in Kenya’s democratization process and the subsequently violent conflict. From the 1970s up to the late 1980s, Kenya attracted large inflows of international aid (annual average 1970: $ 200 million, 1980s: $ 600 million, 1990-1996: $ 1 billion), which mainly supported national development priorities of poverty reduction, education and health. One such scheme was the support to politically motivated resettlement programmes (Rift Valley) as well as to government Agricultural policies resulting in the political and economic marginalization of vulnerable groups e.g. pastoralists. Both policies of resettlement and marginalization became source of communal conflict in 1990s’. Today multi-lateral donors have invested heavily in land policy formulations in Sub Saharan Africa. Yet land access is only one part of the equation. Skills and knowledge to use the land in a sustainable manner, access to inputs, seed security rights, inter alia, are not being addressed, nor is there acknowledgement of the negative impact on them by international trade agreements such as within the World Trade Organization and specifically Trips. The market oriented group has bilateral communities, multi-national companies and bilateral donor agencies. These three works in a collective fashion where bilateral donor agencies engage the public in the countries of interest, the multi-lateral companies compete in projects of interest e.g. mining while the bilateral donor gives the companies the necessary diplomatic and political back ups. What the market oriented group have are the international laws, finances, solidarity of operations and the fact that their processes are mainstreamed. The market oriented movement is old, setting agenda for the world to follow and has only been transforming their operational objectives. In the article The Evolution of the World Bank’s Land Policy: Principles, Experience, and Future Challenges (1999) Klaus Deininger and Hans Binswanger observes …evolution of policy recommendations concerning rural land issues since the formulation of the World Bank’s “Land Reform Policy Paper” in 1975. That paper set out three guiding principles: the desirability of owner-operated family farms; the need for markets to permit land to be transferred to more productive users; and the importance of an egalitarian asset distribution. In the 25 years since that paper was published, these guiding principles have remained the same, but it is now recognized that communal tenure systems can be more cost-effective than formal title, that titling programs should be judged on their equity as well as their efficiency, that the potential of land rental markets has often been severely underestimated, that land-sale markets enhance efficiency only if they are integrated into a broader effort at developing rural factor markets, and that land reform is more likely to result in a reduction of poverty if it harnesses (rather than undermines) the operation of land markets and is implemented in a decentralized fashion. Achieving land policies that incorporate these elements requires a coherent legal and institutional framework together with greater reliance on pilot programs to examine the applicability of interventions under local conditions Cheap availability of land has been the guiding force behind the World Bank’s action in Sub Saharan Africa. Deeper analysis will reveals why individualization of land is no longer sustainable. To a large scale operator titled individual lands come with a baggage of negotiation with land owners and governments. Trends have shown how difficult it is to negotiate individuals out of land. Therefore the World Bank land policy is aimed at collectively held land. The rationale for “land rental” is not for citizens of any African state but this is an attempt to pave way for multi-nationals companies.

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Such is the power in the market group. It is a forceful group that has assumed more rights than the legitimate citizens. It is a group that has been granted more protection than local citizens’. It is a group more powerful than African state. The fundamental questions are: Do African countries understand the principles of statehood? Isn’t it treasonable to accede all citizens’ rights to foreign entity? The second category of secondary stakeholders is the Social transformative group. This group unlike the market oriented group which pursues macro economic development addresses itself to poverty through people centered approaches. This group comprises Social Movements, Indigenous Movements, Environmental Movements, Land Alliances, Housing alliance, ecumenical religions movements and the entire rubric of civil society. This is in outside group in so far as direct territorial claims is concerned and has had limited power in Africa compared to other parts of the world, such as in Latin America, where social movements are proving to play a politically significant role. In Africa, this group is not yet grounded within people’s psyche but can be grounded if it begins to mobilize public around key agenda of interest to communities. It has the unique position of having enormous capacity to generate relevant knowledge and mobilize resources to monitor state conduct and pursue change. It is within this group that a movement on territorial rights in Africa can emerge. However, an alliance with the citizenry, who are the primary stakeholders in so far as the issue is concerned, is critical. Progressive Governments in Africa link with social movements to pursue a broader social agenda and wrest more power from bilateral and multi lateral institutions, hence ensuring more equity and sustainable development. 4.2 Rays of Hope: Reading the entrails from the Latin American successes Science shows us much from entrails, both signatures of the past, and predictions of the future. Same as pastoralists have ‘read’ for centuries. By extension the reading of dung, now interpreted via Near Infrared Reflectance Spectroscopy: can predict up to three weeks ahead the nutritional/ health status of vegetation and livestock Pastoralists have always studied the dung of animals to tell their health status, and aid decisionmaking. Some indigenous make predictions beit related to conflicts, a raid, or expect a raid, or some other impending disaster on the basis of animal entrails. Much scientific work: started out to modernize but convinced of the viability of the indigenous system and indeed knowledge systems. The thinking in the following success stories attempt to ‘read the entrails’: to understand the past and ‘predict’ the future of collective land rights in Africa through a critical analysis of the very bowels of various struggles. 4.2.1 Case Study1: The Awas Tignyi case in the Inter-American court 46 On August 31, 2001, the Inter-American Court of Human Rights, the principal human rights tribunal in the western hemisphere, issued its judgment in the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Affirming that indigenous peoples have rights to the lands and resources they traditionally have used and occupied, that decision was a milestone in a prolonged legal dispute between the Awas Tingni community and the state of Nicaragua. Awas Tingni is an indigenous Mayangna community of some 1,100 members, located in a densely forested area in the isolated Atlantic Coast Region of Nicaragua. The Awas Tingni decision is the first case in which an international tribunal with legally-binding authority has ruled in favor of indigenous peoples’ collective rights, thus setting a precedent of enormous importance for the Americas and elsewhere. In its decision, the Inter-American Court concluded that Nicaragua had violated the rights of the Mayangna community of Awas Tingni by granting a logging concession within the community’s traditional territory without its consent and by ignoring the consistent complaints and requests of Awas Tingni urging demarcation of the territory. The Court found that the right to property, as affirmed in the Inter46

Most facts on the case have been sourced from university of Arizona webpage: http://www.law.arizona.edu/depts/iplp/advocacy_clinical/awas_tingni/case_summary.htm

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American Convention on Human Rights, protects the traditional land tenure of indigenous peoples. The Court set out its concept of indigenous property rights: Given the characteristics of the instant case, some specifications arerequired on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centred on an individual but rather on the group and its Community.47 As a remedy for the violation of the community’s human rights, the Court ordered Nicaragua to demarcate and title the community’s traditional lands within a period of fifteen months, as well as to reform its laws and administrative procedures to effectively guarantee the land rights of all indigenous peoples in the country. After the decision was issued, the government declared publicly its intent to implement the decision. Despite the government’s promise and the community’s willingness to move forward, additional lobbying of the government, and further advocacy within the inter-American human rights system was needed to advance the implementation process. Although the deadline for the implementation of the Awas Tingni judgment was passed on December 17, 2002, the community’s territory remained yet to be titled. Soon after the deadline, the implementation team filed on behalf of the community an amparo action with the Appellate Court in Bilwi (Puerto Cabezas), requesting that the case be forwarded to the Supreme Court of Nicaragua for its consideration. This new suit, which is pending before the Nicaraguan Supreme Court, named as defendants the President of Nicaragua and various ministers and other government officials. In its complaint, the community claims that these officials, by failing to implement the Inter-American Court's judgment and protect Awas Tingni land rights, have violated Nicaragua's own constitution and other domestic laws. A new phase of the implementation process was opened in January 2003 with the adoption of the new indigenous land demarcation law by the Nicaraguan National Assembly. This law defines a set of rules and procedures for the demarcation of indigenous communal lands in the Atlantic Coast. Relevant Nicaraguan officials have declared that Awas Tingni will be the first community to get its land titled under the new law. In 2004 the first phase of the demarcation and titling process was completed with a diagnostic study and set of maps documenting the community’s demographics and traditional land tenure - a first step under the new law towards achieving a title over these lands. Even though, the outcomes are yet to be fully felt by the Awas community, in reality, the impact of this decision has reverberated across the globe. For instance, in South Africa, the Constitutional court of that country has recently, in the Richtersveld case, held that the rights of a particular community survived the annexation of the land by the British Crown and could be held against the current occupiers of their land.48 The Centre for Minority Rights Development (CEMIRIDE) is currently litigating at the African Commission on behalf of the Endorois community in Kenya, seeking restitution of ancestral land annexed by the state for the establishment of a wildlife sanctuary without the consultation of the community49. Iconic Case study also Ogoni? 47

48 49

Id. at para. 149. The Court also drew attention to the cultural, spiritual connection of indigenous peoples with their land, as well as the fundamental basis this resource representsfor their economic survival. Alexkor Ltd v Richtersveld Community, Constitutional Court of South Africa, CCT 19/03, (2003). African Commission on Human and Peoples Rights Communication 276/2003, CE MI RID E ( on behalf of the Endorois Community )/ Republic of Kenya

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The success of the Awas struggle has been borne for long by the community, academic institutions, such as the Indigenous Peoples Law & Policy Program at the University of Arizona, and civil society advocacy groups including the Indian Law Resource Centre. 4.2.2 Case Study 2: The Bolivian and Venezuelan indigenous peoples struggle By 2003, it was clear that poor Bolivians did not want to export natural gas, objected to global institutions and companies buying and selling their natural resources, and rejected neo-liberal institutions, including the Free Trade Areas of the Americas (FTAA) agreement. The people wanted control over their resources; they wanted Bolivians to be the first to benefit, not the last. In the words of Bolivian indigenous leader Roberto de la Cruz, “We will no longer permit the transnational corporations to benefit more than Bolivians from our own natural resources” (The Nation, Oct. 22, 2003). The National Coalition in Defense of Our Gas demanded establishment of a new government within the constitutional framework, and demanded: Derogation of Decree #24806 of August 1997,which permits transnational control of Bolivian gas; Immediate modification of the Hydrocarbons Law (created to promote foreign investment) to allow the Bolivian people to regain control of this resource; Immediate suspension of negotiations on gas and the Free Trade Agreement with Chile; Organization of a constituent assembly to restore participative democracy for the people. Other demands include comprehensive land reform, higher wages, better pensions, transparency in government, political autonomy, and the right to grow coca. In July 2004, Bolivia held a national vote on what to do with its natural gas resources. Voters approved an ambiguously worded five-point plan, submitted by the new president, Carlos Mesa, to develop the country’s gas reserves. The next move was for the Bolivian congress to create a new oil and natural gas law, modify the Hydrocarbons Law, and establish how the reserves would be developed. Mesa argued against nationalization, reasoning that it would frighten off foreign investors. But for those wanting sovereignty over natural resources, nationalization is seen as the only way to end the exploitation. Oscar Olivera, a leader of the earlier uprising against water privatization and now the leader of the National Coalition in Defense of Our Gas, has emphasized that the referendum would not, by itself, bring changes in the daily lives of working people. “The people are building their own horizon. The referendum ended today but the struggle continues; it’s irreversible.” Olivera was right; in spring 2005, Bolivia was again racked by protests and blockades led by indigenous groups frustrated at the government’s lack of meaningful action on the nationalization issue. Protestors called for the re-nationalization of the natural gas industry and for rewriting the constitution to give more power to indigenous citizens. President Mesa, under pressure from indigenous groups, corporations, regional interests, and the IMF, tried to please all sides but could not negotiate a consensus. And as before, the failure to listen to the demands of the people resulted in the resignation of yet another president only twenty months after Lozada had been ousted. Carlos Mesa stepped down and was replaced on an “interim” basis by Eduardo Rodriguez, former head of Bolivia’s Supreme Court. Rodriguez pledged to organize elections for a constituent assembly to rewrite the constitution, and to hold a referendum on regional autonomy, as demanded by the protestors. Before the IMF had intervened to privatize Bolivia’s petroleum industry, oil and gas revenues were split evenly between Bolivia and foreign oil companies. After Bolivia heeded the IMF’s advice (based on the theory that more investment =greater oil production = more revenue), Bolivia’s share of oil revenues declined to 18 percent. According to the Cochabamba-based Democracy Center, the government was supposed to receive a package of taxes and royalties to replace its former 50 percent share of oil and gas benefits. Instead, new petroleum taxes were passed on to Bolivian consumers in the form of taxes on domestic use and higher energy

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prices. By 2001, government gas revenues had fallen by $40 million and Bolivia’s deficit was increasing. Bolivians hoped that this time the government would take their demands seriously. Bolivia’s congress passed a new Hydrocarbons Law in May 2005, pleasing no one. Though the new law raised taxes on foreign companies to 50 percent, it failed to return control of the nation’s gas and oil reserves to the Bolivian people, thus igniting protests from social movements. Shortly after taking power, interim president Rodriguez put the congressional Hydrocarbons Law into effect. Large foreign investors reacted by putting investment plans on hold and threatening to go to arbitration if an acceptable accord was not reached. As the struggle continues, regional divisions are gaining hold. The eastern half of the country, where the natural gas is located, is mostly non-indigenous and more prosperous than the poorer, indigenous-majority western half. The eastern departments are opposed to nationalization and welcome foreign investment. Still, the results of a nation-wide poll in June 2005 found 75 percent of Bolivians in favor of nationalization. Even the World Bank recently concluded that although Bolivia’s indigenous groups have increased their political influence, this has not yet resulted in an improvement in their living conditions. In a country where 64 percent of the population lives below the poverty line, half the population survives on less than $2 a day, and the richest 10 percent of Bolivians consume twenty two times that consumed by the poorest 10 percent, is it any wonder the indigenous majority want to benefit from the natural resources surrounding them? Bolivia’s indigenous people take pride in their defiant demonstrations and are empowered by the recent success of their political activism, especially the election of President Morales. Bolivia’s indigenous people are not alone in fighting the current economic system. As reported elsewhere in these pages, peoples’ movements —frustrated with false promises of free markets and fed up with the Washington Consensus—are gaining ground throughout Latin America, particularly in Argentina, Brazil, Ecuador, Guatemala, Mexico, Paraguay, Peru, and Venezuela. Opposition in these countries is based on experience with what indigenous and poor campesinos see as the failures of privatization, deregulation, structural adjustment, and free entry of foreign investment. Indigenous peoples were promised that this new model would improve the economy and thus their lives. What they got instead was high unemployment, rising poverty, and recession. The indigenous opposition to the economic model was particularly strongly felt in November 2005, with the unified rejection of President Bush’s advocacy of a new Free Trade Area of the Americas (FTAA). Right now, the momentum is clearly with the indigenous peoples, who now have the opportunity to make their voices and ideas heard. In both phases of the gas wars, Bolivians called upon their government to use the natural gas first for in-country employment and income. If there is a surplus, it can be exported on terms favorable to Bolivia’s people. According to new president Evo Morales, the question isn’t whether or not to export but whether “the property of our oil and gas is going to belong to Bolivians or to the multinationals.” (One ominous sign was that the United States reacted to Morales’s statements and election by sharply cutting Bolivia’s military aid, raising fears that a disgruntled military corps might revert to old behaviors and head a coup.) Beyond control of gas and water, the indigenous people of Bolivia want not only a full say in how all resources of their country are used, but basic fairness, equality, and a chance to regain their dignity. While the long-range results of the Bolivian uprisings and elections are yet to be known, the immediate result has been to place new collective power and momentum in the hands of the indigenous peoples. On the other hand, in 1999, the newly elected National Constituent Assembly of Venezuela completed a new constitution, which included some of the most supportive language for indigenous rights of any country in the Western Hemisphere. The specific rights include protection from alienability of lands, the right to collective ownership and full consultation; recognition and respect for indigenous worldviews, languages and economic

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and political systems. Despite such language, there remains some question about whether the commitments are being honored. At the 2006 America Social Forum in Caracas, huge protests by indigenous peoples focused on government plans to grant coal concessions to energy corporations within collectively held indigenous lands along the northern border, without the promised prior consultations. As this book goes to press, negotiations with the government are about to begin. Venezuela’s indigenous population represents only about 1.5 percent of the country’s population and is divided into twenty-eight ethnic groups, the largest being the Wayuu (or Guajira), numbering about 200,000, in the state of Zulia, near the Colombian border. Pressures for codification of indigenous rights began in the 1980s, when most of the indigenous peoples of Venezuela joined in the creation of the Venezuelan National Indian Council, opposing that government’s neo-liberal reforms, especially an IMF mandated oil price hike. Mass protest led to riots in Caracas. With the 1998 election of Hugo Chavez (himself partly Pumé) as president, and the formation of the new National Assembly, indigenous interests seemed to take a turn for the better. Following is the partial text of Chapter 8, On the Rights of Indigenous Peoples, from the 1999 Venezuelan Constitution:

Article 119: The State recognizes the existence of indigenous peoples and communities, their social, political and economic organization, their cultures, practices and customs, languages and religions, as well as their habitat and original rights to the lands they ancestrally and traditionally occupy, and which are necessary to develop and guarantee their way of life. It shall be the responsibility of the National Executive, with the participation of the native peoples, to demarcate and guarantee the right to collective ownership of their lands, which shall be inalienable, not subject to the law of limitations and nontransferable. Article 120: Exploitation by the State of the natural resources in indigenous habitats shall be carried out without harming the cultural, social and economic integrity of such habitats, and likewise subject to prior information and consultation with the indigenous communities concerned. Profits from such exploitation by the indigenous peoples are subject to the Constitution and the law. Article 121: Indigenous peoples have the right to maintain and develop their ethnic and cultural identity, world view, values, spirituality and sacred places of worship. The State shall promote the appreciation and dissemination of the cultural manifestations of the indigenous peoples, who have the right to their own education, taking into account their special social and cultural characteristics, values and traditions. Article 122: Indigenous peoples have the right to a full health system that takes into consideration their practices and cultures. The State shall recognize their traditional medicine and supplementary forms of therapy, subject to principles of bioethics. Article 123: Indigenous peoples have the right to maintain and promote their own economic practices based on reciprocity, solidarity and exchange; their traditional productive activities and their participation in the national economy, and to define their priorities. Article 124: Collective intellectual property rights in the knowledge, technologies and innovations of indigenous peoples are guaranteed and protected. Any activity relating to genetic resources and the knowledge associated with the same, shall pursue collective benefits. Article 125: Indigenous peoples have the right to participate in politics. The State shall guarantee indigenous representation in the National Assembly and the deliberating organs of federal and local entities. Source: Paradigm Wars: Indigenous Peoples Resistance to Globalization, pg. 187

Table 4: Show Constitution Citation by Indians - Wayuu, Anu, Yukpa and Bori in Venezuela for Recognition of their Collective Land Rights

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These extraordinary constitutional commitments have been celebrated as a model for other nations to follow, but now they are cited by indigenous Wayuu, Anu, Yukpa and Bori peoples demanding they actually be followed. The Indians specifically ask for recognition of their collective land rights to the disputed territory, and that all energy concessions be reversed. The ultimate outcome is not clear. In Africa, intervention must bare in mind the different challenges and dynamics in land reforms and ecological management herein presented in the table below. Each country will require different strategies but perhaps the unifying issue will be on how to re-think territory and people spirituality. Africa’s Land Scene – An Overview of Reforms

There are three trends appear to manifest on the land reforms scene in sub-Saharan Africa. In the Nigerian situation under the Decree No 6 of 1978 all lands were nationalized and vested in state government. The outcome is that process on land is thus dependent state bureaucracies which have increasing become corrupt with opportunistic bevaviour of state and head of government officials. An efficient public system that responds to people’s needs is thus pre-requisite to such model. In the Kenyan situation emphasis appears to be placed on a private registration system with strong state support. Here an efficient bureaucracy and incontrovertible legal framework supported by clear procedures are necessary to avoid graft and landlessness and the injustice that emerges from land grabbing. In case of the French speaking countries especially Burkina Faso and Cote D’ Ivoire the elements of Napoleonic law with its notions, of ‘alloyed ownership’ of property dominates. Under the framework traditional rulers play a key role in enforcing the state regulations under the guise of interpreting customary relationship relating to land. In the case of Ghana, there is dominance of customary land system. The state however, through various legislative has made several intrusions into the traditional scheme in an effort to truncate the fullest expression of the customary system. Existence of these include the process of the state granting concurrence and consent to grant by traditional landowners to give legality, reducing the extent of the user rights of the native are ‘stool and skin’ land and the overriding power acquisition although watered down by Article 20 (5) of the 1992 constitution. However, recent policy and programme sponsored by the World Bank and western countries are pushing rapidly to process of private registration of interest.

Table 5: An overview of Africa's Dynamic Reform Patters on the land scene

Conclusion The international and national systems, which are heavily influenced by the global market, will continue to do everything they can to subordinate African viewpoints, particularly in so far as territorial collective rights is concerned. Yet there are a lot of developments within the indigenous movements and other land movements as well as within international law, which should act as a break to the wanton onslaught, including their thirst for privatization of land. This report has dwelt at length on how they co-opt and distort concepts and processes to ensure the perpetuation of their political and economic dominance. We have also seen the ways state and industry collude to undermine our rights. The official balance of power between African communities on the one hand and the state and market on the other is much skewed in favor of the latter. But the ultimate power of communities is the profound legitimacy of its causes, rooted in custom, ancestral attachment to territory and African spirituality. This report has observed that taken in combination and hurled against the powers that be through organized struggles, alliance building and imbued with community spirituality such as in Latin America, the cause of communities in so far as territorial and other rights are concerned, can be severed from the insatiable exploitation of capital interests. However, the foundation of organized communities and formations, working together with full support of allies from movements and civil society in the global south and North, must be in place, working ever constantly to thwart the energized and singular purposes of globalization.

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The report has noted the use of language as a tool of domination. For instance, the language and concept of “sustainable development,” first introduced at the Earth Summit in Rio in 1992, has been increasingly hijacked and distorted by the market. The mining industry tried to sell the bizarre concept of “sustainable mining,” even though mining was not discussed at all in Rio in 1992, because it was (and is) inconceivable to think of mining as a sustainable activity. Similar conceptual distortions have appeared in proposals for ecotourism, forest certifications, and proposals that claim to “protect” traditional knowledge and genetic resources within regimes that actually do the opposite: commercial monopolization of the common intellectual property of indigenous peoples, as in the TRIPS agreement of the WTO. Even such neutral-sounding concepts as “access and benefit sharing,” supposedly created to protect indigenous and Third World interests against global corporations, have now been distorted by the CBD to serve countries that are economically rich but poor in biodiversity over Third World and indigenous communities. Thus, it is imperative that there be constant surveillance of the manipulation of some of the well meaning tactics and language to the derailment of intended purposes. The international Human right regime, while weak in implementation, costly and time consuming still appears viable, in so far as the re-articulation and reclamation of rights to territory is concerned. This report has observed the application of these standards successfully in South Africa, Nigeria and Botswana, more recently, to restitute or compensate communities whose territorial rights have been violated. It thus implies that this frontier needs to be strengthened further through more deliberate monitoring of standard setting and more vigorous usage of emerging institutional opportunities, such as the new African Court on Human and Peoples Rights and United Nations Permanent Forum on Indigenous Populations etc. The Bretton Woods institutions and other bilateral and multi- lateral donors and institutions, including WTO, remain guilty as charged for the violations of territorial rights of communities. How then ought these institutions to be engaged? While the report clearly holds them culpable, the power they wield is such that they cannot take the sentence so imposed by movements and communities, aka the Saddam Hussein style. More strategic engagement must thus be pursued, whose central motif must rest in greater involvement of victim communities. Recommendations This report unequivocally recommends that there is need to establish an African alliance to defend/promote collective territorial rights, based on African worldviews, within the modern context. Such a platform must be structured so as to have good representation of communities, civil society groups, particularly land and housing alliances, indigenous peoples and minority rights movements, environmental and biodiversity rights movements etc. The platform must however be issue specific and targeted in so far as the key personalities and institutions being pursued is concerned. It must have key spokespersons/public faces, who can become the embodiment of the movement. Autonomy and creativity at country and sub regional levels ought to provide the needed energy and enhanced ownership. The Platform must provide networking, learning channels and information sharing to its membership, while developing the necessary capacities for solidarity mobilization and knowledge development. The internal governance of the Network/Platform must be an early concern so that a proper foundation is constructed. The publicity of community struggles in Africa, even successful ones, remains poor. This lack of visibility of success, owing largely to the fact that most media institutions owe their existence to large business enterprise and can thus “not bite the finger that feeds it”, is an impediment that ought to be overcome. A clear media and communication strategy should be conceived as early as possible to bring forward both the successes and challenges of these initiatives. The use of e-communication, in particular, is of utmost necessity, at the

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horizontal and vertical levels, of course due regard being paid to the capacity challenges of the digital divide that continues to imperil the South. More quantitative research should be undertaken to measure in more specific terms impacts of territorial loss on communities and African economies. This would constitute an important input to the reparations agenda against the West, which Africa ought to pursue. Such research output should be well documented and disseminated at all levels, including in appropriate form, at community level. A strategy of sensitization and re-information must be embarked on targeting both African states, through its core Pan state institutions, and communities. African visions and world views, particularly those that relate to spirituality and governance viz a viz land/territory must be articulated. The clanging symbols of modernity have had a captive audience in Africa, so much so that the African reality sounds like distant drums to many. The re-awakening of the African self, cannot take place without ceremony or strategy. The enemy camp is active and ever so daring in its quest for more territory for mining, tourism, and other forms of exploitation. Surveillance and monitoring of key institutions, has taken place, with no specific focus on territorial rights issues. Indeed, the kind of monitoring that has taken place is premised on the benchmarks set by the adversary, such as MDGs, rather than those established on the objective reality of the context of communities. A more proactive monitoring of the Bretton Woods institutions, must become a preoccupation of this initiative When all is said and done, it is fact that the instrumentality of the constitution and law has been applied in a manner capricious of the territorial interests of communities in Africa. These laws are now bed-rocked on judicial presents, which cannot be overturned, merely by a wishful wave of the hand. It is imperative that legal and policy reform at national level be pursued. Model legislation on territorial rights would be an important benchmark against which specific reforms can be orchestrated at the national level. Targeted strategic litigation, however, needs to be considered against further large scale expropriation of territory. Such litigation could take advantage of solicitous frameworks at the international and regional level e.g. the Africa Commission of Human and People’s Rights (ACHPR).

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BIBLIOGRAPHY Burns, P. and Holden, A. (1995). Tourism: A New Perspective. Englewood Cliffs: Prentice Hall Bos & Peperkamp 1989:32 Commission for Africa (2005) Our Common Interest: Report of Commission for Africa. London: www.commissionforafrica.org Colchester, M. (2001). A Survey of Indigenous Land Tenure. London: Forest People Programme. Cullinan, C. (2002). Wild Law. Syber Ink & Gaia Foundation: London. De Soto, H. (2000). The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, New York, NY,Basic Books ELEG (2003). Community Guide to Environmental Management in Kenya. Nairobi: ILEG Gulliver, P.H. (1951).A Preliminary Survey of Turkana: A Report for Compiled for the Government of Kenya (No 26). Cape town: University of Cape town Rondebosch Global Alliance on Community Ecological Governance (GA-CEG) (2006). “Land Reform: Community Rights, Individual Rights, Community Ecological Governance –which path for empowering the poor?”. London: http://www.gaiafoundation.org Hegel, G.W.F. (1956). The Philosophy of History. New York: Dover Publications Inc ------------------ (1975). Lectures of Philosophy of the World History: Introduction. Cambridge: Cambridge University Press Kalisch, A. (2002). Tourism as Fair Trade – NGO Perspectives. London: Tourism Concern Klaus Deininger and Hans Binswanger (1999). The Evolution of the World Bank’s Land Policy: Principles, Experience, and Future Challenges. New York: World Bank Publication Locke (1993) Treatises of Government I or II ed by Mark Goldie, M. paperback edition edited by and published by Everyman. Masolo, D. A. (1989). Some Aspects and Perspectives of African Philosophy Today. Rome: Instituto Italiano - Africano Mbiti, J.S. (1969). African Religions and Philosophy. Nairobi: East African Educational Publishers Ltd Nairobi Mkangi, K. (2002). “Identity and Conflicting Identities: A Colonials Legacy and A Neo-Colonial African Dilemma.” Nairobi: Unpublished MIASMU Lecture Notes Ogendo, O. (1989). Tenant of the Crown -------------- (1991).In Land We Trust -------------- (1993). Rutten, M.M.E.M (1992). Selling Wealth to buy Poverty: The Process of Individualization of Land Ownership Among the Maasai Pastoralists Of Kajiado District, Kenya 1890-1990. SaarbrukenFortlauderdale: Verlag beitenback Publishers SID (2006). The State of East Africa Report 2006: Trends, Tensions and Contradictions: The Leadership Challenge. Tanzania: SID publication Simmons (1992) Sreenivasan 1995Third World Network Africa (2001) Mining, Development and Social Conflicts in Africa. Accra: Combert Impressions Ltd Toulmin, C. (2006). “Securing land rights for the poor in Africa —Key to growth, Peace and Sustainable Development.” London: IIED Walker, R. and Omar, H. G. (2003). Pastoralists Under Pressure: The Politics of Sedentarisation and Marginalization in Northeast Kenya. Nairobi: Oxfam Publication Unesco/UNEP/FAO (1979). Tropical Grazing Land Ecosystem: A State-of-Knowledge Report, UNESCO Natural Resources Research no. XVI. Paris: UNESCO Publication World Neighbors (2002). A New Wave of Power, People & politics: The Action Guide for Advocacy and Citizen Participation. Oklahoma: Paragon Press, Inc

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Annex 2 6.0 A case study of collective rights over territory in the coastal Kenya By Kariuki Thuku and Amini Tengeza Introduction Much of the written history about the Kenyan coastal strip revolves around Transatlantic trade. But much more about the aggressive wars of invasion to seize and control the coastline by the Portuguese, Arab and British empires. Vasco Da Gama Pillar, Gede Ruins, Mnarani Ruins and Fort Jesus are a few tangible relics that can attest to the above. To this effect, an attempt to dissect land and territorial dynamics of the coastal Kenya elicits a very broad area of discussion that would include the rights of the local communities to access and utilize the resources of the Indian Ocean. The aforementioned historical perspective has to some extent created a street assumption that Swahili people are the rightful owners of the coastal region. To put the records straight, the word Swahili is of Arabic root, Sahil, meaning a port of trade. More so, the entire Swahili language is a product of both Arab and Bantu interaction. Swahili is then understood to be a language of trade by most of the Bantu speakers who got into direct contact with Arab traders. For instance, the initial perception of the Agikuyu people of Central Kenya towards Swahili dialect was not only a language of Arab merchants but also that of liars and sweet-talkers. Simply because the trading approach of Arabs was one purely inclined towards profit with hardly no elements of present or future inter-personal relationship. Basically, the ports of trade established by 'Swahili traders' along the coastline cannot by any merit guarantee the transfer of the rights of territorial ownership from the indigenous inhabitants to traders. For all the sahils were acquired and protected by the mouth of the canon and the ungodly influence of the cowries. To understand the communal territorial rights of the coastal ethnic groups of Kenya and the consequent loss of the same rights over time it is essential to consider the effects of Transatlantic trade, slavery, beliefs of the coastal indigenous groups about the ocean, Islamization, colonization, the formation of a sovereign territory called state [Kenya] and eventually a village called globe. History of the Mijikenda People Mijikenda is a Swahili word whose English equivalent is 'nine sub-groups'. In their story of origin, the nine Mijikenda sub-groups claim to have come from a place called Shungwaya in the southern tip of the current Somalia. However, all the scholarly efforts done so far have failed to locate Shungwaya in the Somalia map. Galla and Orma pastoralist communities pushed Mijikenda down towards the Kenyan coast in around 17th century. There is sufficient and reliable evidence that on entering Kenya, Mijikenda found a few other forestdwellers [hunters and gatherers] like Waata and Wasanya. Being farmers they found the Kenyan coast suitable for cultivation and settlement. Thus they referred to the region as Kaya meaning home. The nine sub-groups are of Mijikenda community are Digo, Chonyi, Rabai, Duruma, Kauma, Jibana, Kambe, Rimbe and Giriama. These sub-groups have a common ancestral lineage and their languages and cultures are pretty comparable. The attacks from pastoralists continued even after the migration. This forced the establishment of fortified villages on the hilltops. Each village was concealed by a thick forest making it very difficult for the enemy to locate the central clearing. Both the forest and the central area are referred to as Kaya or home. As from the 19th century, the security factors improved and most clans left the fortified villages and started to cultivate portions of land away from the Kaya. The original village sites including the perimeter forest were maintained by the Kaya elders as sacred places for burial and other traditional ceremonies. They are to date highly revered symbols of Mijikenda identity. To conclude, Kaya forests are residual patches of between 10 to 400ha of the once-extensive lowland forest of coastal Kenya. They are of high biological diverse ecosystems and have a high nature conservation value. At

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present, over 50 of these patches have been identified in the contiguous coastal districts of Kwale, Mombasa, Kilifi and Malindi. Cutting of trees and destruction of vegetation around these sites is prohibited by the Mijikenda indigenous laws. And, whereas the surrounding areas are gradually getting converted into farmlands, Kayas have relatively maintained their status. A few have however lost in size. Communal land rights and the legal opportunities for protection of Kaya forests Kaya forests have been preserved by Mijikenda indigenous land tenure system for generations. Considering their great cultural value, the government has continued to gazette them as national monuments under the Monuments and Antiquities Act cap 215 of National Museums of Kenya [NMK]. Recently, NMK proposed for nomination of the Kayas as world heritage sites under UNESCO. Nonetheless, most of the Kaya forests are under the management and patronage of their respective local county councils. These local authorities play the role of a trustee on behalf of the community. However unscrupulous leaders in the councils have misused the very powers conferred on them by the community. This loophole has continued to allow unilateral decisions to excise and sell off Kaya land without the express authority from the community. The main problem with the trust-land policy is that apart from being of colonial origin it vests a lot of powers on the local authorities denying the community the space for first-hand participation in decision making. It does not even attempt to define the word community. However, Makaya have remained communally owned by different clans living together since their foundation. Traditional institutions of management are quite specific on the use and ownership of the Kaya. These traditional land ethics are set-out and enforced by the Kaya elders but are oftenly overridden and rendered null and void in the face of western written law. Taboos and traditional cursing ceremonies to deal with defaulters are clearly laid down but modernity has to a great extent disrupted the intergeneration transmission of indigenous knowledge and spirituality about land. Sadly, even after the gazettement of Kaya forests as national monuments in an effort to legally protect them from the looming threats of mining and mineral prospecting, tourism development, demand for agricultural land and building materials, the communal ownership of Kayas is exponentially getting eroded. In his paper, Antony Githitho, 2002 [Kew UK] reveals shocking statistics about the estimated hectares of land so far annexed in some selected Kayas. He highlights agricultural extension and private property development as the two main threats. Find the statistics herebelow. Habitat loss for selected Kaya sites Kaya Estimated original area [ha] Jibana 140 Chonyi 200 Rabai 1, 000 Kambe 80 Kauma 100 Diani 130 Chale 50 Kinondo 45

30 80 30 25 30 50 50 30

Estimated forest loss Main cause Agricultural extension -do-do-do-doProperty development -do-do-

A lot of attention should then be given to communities living around Kayas to enable them to come up with alternative Kaya-friendly livelihood options. Lastly, and most crucial is to enact or else redesign the current land laws as to make them reflect the communities' definition of land/territory, its meaning, principles, sanctity to mention a few. This cannot be achieved unless the Mijikenda traditional council of elders ‘Ngambi’ or 'Kambi' is recognized and legally accorded more space in the overall management of the Kayas. The Ngambi institution is still a living culture but most of its mandate has been usurped by legally acknowledge bodies like

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National Museums, local authorities and Ministry of Lands. Other factors like modern education, and Christian evangelization are becoming are now true threats to the future of the Kayas. Communal resources within a Kaya Water points All water points inside the Kaya forests were communal and were strictly managed by the council of elders. The elders assessed and worked around procedures of using the Kaya waters for the benefit of all living units as to include humans, livestock, wild animals and trees. It was a taboo to desecrate water resources inside a Kaya and the Mijikenda history cannot recall a single moment when this act happened. Were it not for this tradition, Kayas would not be enjoying the best water catchment points today in the coastal Kenya. The water catchment areas outside the Kayas are in deplorable state and some of them have dried up completely. Burial grounds The Kaya forests have remained communal burial grounds to date since their establishment by the ancestors. There is designated burial site within the Kaya forests and every member of the community has a right to be buried there. Culturally, there used to be carved timber grave posts or ‘Vigango’ serving as grave makers but most of these have disappeared (Tengeza, 2000, Spear 1979). In certain cases, different clans living in one Kaya could have separate burial sites. The burial section is the highly and respected as resting places of the community ancestors. Other resource use as found in the forest (trees, herbs) Each community member has the entire blessing to utilize the resources found in the Kaya forest for as long as such action does not negatively interfere with the sanctity of the Kaya. Having sought prior consent from Ngambi elders, one can cut minimal poles for building a house (traditional huts) within the Kaya, collect firewood for cooking foods in event of a cultural ceremony taking place inside the Kaya and collect traditional herbal medicines. Qualified medicine men and diviners can harvest traditional medicines and treat patients residing inside or outside the Kaya. However, collecting herbal medicine for commercial purposes is prohibited. There are a few sacred spots where no one is allowed to collect whatever resources. One of them is the Fingo. The Fingo is regarded as a powerful protective magic that the Mijikenda carried with them from their original home, Shungwaya. It is secretly buried at a very special point within the Kaya forest and only selected elders can gain access to Fingo area. Livestock grazing is abhorred in most Kaya forests and the penalty for such an offence is slaughtering of one of the cattle found grazing. Livestock grazing is believed to have potential to demean the sacredness of Kaya. All in all, animals meant for sacrificial and rituals within the Kaya are exempted from the above law. Gazettement for protection, policy and law The gazettement process of the Kaya forests was at the very least meant to enhance the protection and management the Kaya forests. By providing the Monuments and Antiquities Act cap 215, the National Museums of Kenya intended to facilitate communities with a legal framework that would check the destruction and excision of the sacred and cultural sites. The gazettement has a component on sustainable use of resources found within a community managed and protected area. The act has however failed to arrest the desecration and grabbing of communal portions of land of great cultural, spiritual or biodiversity significance. Apart from having a number of enforcement discrepancies the Monument and Antiquities Act is supposed to work in a medium of other related acts and legislation which, most of them are relatively inconsistent. The act has substantial amount of conflict of duties and responsibilities between NMK and the communities. The

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gazettement has also not successfully addressed the careful use of rare and endangered plant, and animal species given the fact that 50% of Kenya rare plants are found in the Kaya forests. On the other hand, the gazettement allows elders to perform ceremonies and ritual in these forests. In most of the Kayas the gazettement process was community-driven in particular during the petition, boundary marking and surveying stages. With the help of an elected committee of Kaya elders and local administration, the boundaries were determined and a cut-line made to separate the Kaya from agricultural land. This process was democratically done upon reaching an understanding between the elders and persons bordering the Kaya. A constellation of state departments and NGO organizations have helped in the formulation of principles on sustainable utilization and management of the gazetted Kaya forests over a number of years. These principles have been acquired and developed through relentless listening, observing and analyzing of the indigenous knowledge of the Mijikenda. The same insights are becoming powerful tools of negotiating for communitycentred Kaya management policies with the relevant state departments. This approach being the most appropriate enjoins clout of people called the politicians. Making the process partly political as well as futureless yet issues appertaining to Makaya conservation ought to be handled as sacred and apparently nonnegotiable. Due to increased publicity emanating from diverse conservation concepts and approaches embraced by different interested groups, Kayas are now getting national and international profiling as tourism sites. Tourism is now a key threats to the existence of Makaya since it has the ability to degrade Makaya values, ethics and philosophy. The recently assented New Heritage Act which is about to replace the Monuments and Antiquities Act has articulated the protection and conservation of the Kaya forests though it too has a number of flaws. The locals are not happy since amongst other reasons the act does not make a distinction between minor and severe environmental destroyers. They feel the penalty is unnecessarily too high. It states that ‘a person shall be charged not less than one million Kenya shillings if found guilty of imperiling a Kaya forest’. It is utterly illogical for a magistrate to fine a poor local 1,000,000 Kshs for simply cutting down two posts in a Kaya for domestic use! In the end, this kind of law shall dilute all the community efforts to revere the Makaya. Impacts and other trends in land tenure agitation for change in rural coastal communities Huge chunks of land in the coastal strip belongs to Arab absentee landlords. Locals are demanding for the revocation of those title deeds and some have already invaded those farms. Kisauni, Likoni, Takaungu, Shariani and Majengo are case examples. The ongoing agitation for nullification of the title deeds on the ten-mile strip and settlement of squatters. In most areas along the coastline beaches are totally blocked by hotels. Gazettement of Kayas and other communal sites. In Kaya Chale elders are against the intended tourist hotel development and a section of local politicians supporting the hotel construction are claiming that Chale was not a Kaya and thus it should be degazetted. In Kaya Rabai elders are opposing the intended excision of Kaya Bendeje. So far the dynamics are that a section of saved Christians and a few councilors are machinating the cutting out. The conflict is still highly volatile to an extent that Kaya Bendeje was left out during the boundary marking and surveying stage carried out by NMK. The some locals had been promised land for supporting certain councilors who want to remain in power. The current land stalemate in Maumba-Nguluku(Kwale District) for the Government approved Tiomin Resources Company to mine the titanium sand dunes. Government is asking the locals to move in order for the mining to start and the compensations is a mere peanut amount, 1176USD per an acre of land. Nomination of Kayas as world heritage under UNESCO has its potential benefits and threats. Stakeholders in Kaya forest conservation National museums of Kenya through Coastal forest conservation Unit WWF EARPO through CFCU and EACF programme. 68

Forest Department Nema ( National Environmental Management Authority Kaya elders Councils Provincial administration through the local chiefs Local Members of parliament Kenya land alliance Media (print and broadcast) Kenya wildlife service Traditional herbalists/ spiritualists/divine healers and other interest groups Local community Community Conservation groups and other CBOs Nature Kenya KEFRI Local county councils IUCN Practical actions needed to save Kayas The communal custodianship of land and the settlement of land disputes should be taken back to the Kaya council of elders and should be recognized by the Government. More Kayas should be gazetted as communal areas/ reserves or national monuments and the enforcement component of the New Heritage Bill should be should be revised. Legitimate spiritual councils of elders should be respected and given the mandate to set guidelines of resource utilization on strict traditional bylaws. Traditional management institutions in resource allocation, use and control should be entrenched in the constitution as a way of strengthening their capacity and recognition. The state should allocate resources to complement the elders efforts by supporting people's systems that enhance Kaya conservation like traditional ceremonies and community guarding ) An experiential education system for pupils and students that incorporates the mandatory learning of local traditions and cultures should be emphasized. Strengthening and provision of adequate support to stakeholders working with Mijikenda community to save the Kayas. In general, the Kaya forests have a good future to exist since Mijikenda traditions are still strong. But, organizations working towards this course should form a consultative working group to avoid double management of Kayas. More to that enhancing Community Ecological Governance and kick-starting on process on Cultural Biodiversty could be a big boast to Kaya longevity. Long live Kayas; long live Mijikenda people; long live Mijikenda traditions. References Lawrence Chiro, 2005: Profile of kaya Kauma. (Unpublished CFCU report) Robertson, S.A and Luke, W.R.Q. 1993. Report of the Coastal Forest Survey. (Unpublished) Report to the Director, National Museum of Kenya and WWF International. Nairobi, Kenya Amini Tengeza, 2000: The Mijikenda Grave Markers (Links between Cultures and Biodiversity: Proceedings of Cultures and Biodiversity Congress 2000, 20-30July 2000, Yunnan, P.R.China” ).Cubic 2000 Justin Willis, 1996: The Northern Kayas of the Mijikenda; A Gazetteer and an Historical Reassessment. T.T spear, 1979: The Kaya Complex; A History of the Mijikenda peoples to 1900. 69

Annex 3 7.0 Africa’s Wealth of Seed Diversity and Farmer Knowledge – Under threat from the Gates/ Rockefeller “Green Revolution” initiative A green revolution in Africa? A warning from India - Dr Vandana Shiva, Dr Vandana Shiva, a renown environmental activist, took the participants through the lessons learnt from the India Green revolution and the introduction of genetic engineering in the country. This has resulted in dependency in India and the farmers have being reduced to beggars in the name of poverty alleviation. She gave a case of Bt cotton whose output is far below the organically grown indigenous cotton. The terminator gene technology has ensured that the farmers also do not save seeds to grow in the next season and have to buy loyalties for seeds every season from Monsanto. This has culminated to a number of suicides by poor farmers due to frustrations. She further cited a case of introduction of green revolution in Africa by Rockefeller and gates Foundation to Dr Vandana Shiva engages with an art and craft dealer at the WSF 2007 Photo P Kuria alleviate hunger in Africa. She indicated that that the way the green revolution was introduced in India and the seeds that were meant to bring sunshine have become seeds of death. She gave a challenge to Africa to choose the path they would like to follow, to produce their food in a more healthy indigenous way or to choose the seeds of death. After the workshop 12 African states and 70 organizations signed a petition against Rockefeller and gates foundation. The petition was as follows; Africa is the source of much of the world’s agricultural knowledge and biodiversity. African farming represents a wealth of innovation: for example, Canada’s main export wheat is derived from a Kenyan variety called “Kenyan farmer”; the US and Canada grow barley bred from Ethiopian farmers’ varieties; and the Zera Zera sorghum grown in Texas originated in Ethiopia and the Sudan. This rich basis of biodiversity still exists in Africa today, thanks to the 80% of farmers in Africa that continue to save seed in a range of diverse ecosystems across the continent. The future of agriculture for Africa and the world will have to build on this biodiversity and farmers’ knowledge, especially in the current context of climate change. The diversity of seed varieties continually 70

developed by African farmers will be vital to ensure that they have the flexibility to respond to changing weather patterns. With the challenges that climate change will bring, only a wealth of seed diversity maintained by farmers in Africa can offer a response to prevent severe food crises. However, new external initiatives are putting pressure on these agricultural systems. A new initiative from the Bill Gates/ Rockefeller Foundation partnership, called the “Alliance for a Green Revolution for Africa” (AGRA) is putting over $150 million towards shifting African agriculture to a system dependent on expensive, harmful chemicals, monocultures of hybrid seeds, and ultimately genetically modified organisms (GMOs). Another initiative funded by the G8 is pushing biotechnology in agriculture through four new major Biosciences research centres in Africa. And GM companies such as Monsanto and Syngenta are entering into public-private-partnership agreements with national agricultural research centres in Africa, in order to direct agricultural research and policy towards GMOs. These initiatives under-represent the real achievements in productivity through traditional methods, and will fail to address the real causes of hunger in Africa. This comes at a time when the world is realising the need for organic agriculture; however these initiatives would promote the use of more chemicals, and less seed diversity in the hands of farmers. These initiatives will destroy the bases of biodiversity, knowledge and adaptive capacity – at a time when it is needed most. This push for a so-called “green revolution” or “gene revolution” is being done once again under the guise of solving hunger in Africa. Chemical-intensive agriculture is, however, already known to be outmoded. We have seen how fertilisers have killed the soil, creating erosion, vulnerable plants and loss of water from the soil. We have seen how pesticides and herbicides have harmed our environment and made us sick. We know that hybrid and GM seed monocultures have pulled farmers into poverty by preventing them from saving seed, and preventing traditional methods of intercropping which provide food security. We vow to learn from our brothers and sisters in India, where this chemical and genetically modified system of agriculture has left them in so much debt and hunger that 150,000 farmers have committed suicide. The push for a corporate-controlled chemical system of agriculture is parasitic on Africa’s biodiversity, food sovereignty, seed and small-scale farmers. Farmers in Africa cannot afford these expensive agricultural inputs. But these new infrastructures seek to make farmers dependent on chemicals and hybrid seeds, and will open the door to GMOs and Terminator crops. Industrial breeding has in fact been driven by the industry’s demand for new markets – not to meet the needs of farmers. We know, however, that the agro ecological approach to farming, using traditional and organic methods, provides the real solutions to the crises that we face. Studies show that a biodiversity-based organic agriculture, working with nature and not against it, and using a diversity of mixed crops, produces higher overall yields at far lower costs than chemical agriculture. A 2002 study by the International Centre for Research on Agroforestry (ICRAF) showed that Southern African farms using traditional agroforestry techniques did not suffer from the drought that hit the region so severely that year. We reject these new foreign systems that will encourage Africa’s land and water to be privatized for growing inappropriate export crops, biofuels and carbon sinks, instead of food for our own people. We pledge to intensify our work for food sovereignty by conserving our own seed and enhancing our traditional organic systems of agriculture, in order to meet the uncertainties and challenges that will be faced by present and future generations. Agricultural innovation must be farmer-led, responding to local needs and sustainability. We celebrate Africa’s wealth and heritage of seed, knowledge and innovation. We will resist these misguided, topdown but heavily-funded initiatives from the North, which show little or no understanding or respect for our complex systems. We ask that we be allowed to define our own path forward.

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Petition Signed by African civil society organisations at the World Social Forum in from 70 organisations from 12 African countries Gebremehdin Birega, Africa Biodiversity Network, Ethiopia. Zachary Makanya, PELUM-Kenya, Kenya. Treazah Nganga, Kenya GMO Concern (KEGCO), Kenya. Kazungu Thuva, Porini Association, Kenya. Tetu Maingi, Porini Association, Kenya. Stephen Musubire, Centre for Development Initiatives,Uganda. Davis Ddamulira, Centre for Development Initiatives,Uganda. Million Belay, MELCA, Ethiopia. Bakari Nyari, RAINS, Ghana. Gao Dorothy Ndaba, PELUM-Botswana, Botswana. P.D. Muritu, SACDEP, Kenya. W. Kimwea, SACDEP, Kenya. Wanjiru Kamau, Kenya Organic Agriculture Network, Kenya. Samuel Ndungu, Kenya Organic Agriculture Netwowrk, Kenya. Njoki Njoroge Nehu, Daughters of Mumbi, Kenya. Rose Ochieng, Crisis Center, Kenya. James Senjire, Oloingok,Kenya. Daniel Kipainoi, Yiaku People Association, Kenya George M. Kirigia, MCPBO, Kenya. Julius Juma MUSTA, Kenya. Andrew, ILFFR, Kenya Migwi Mwamiki, Mount Kenya Camps,Kenya Kennedy Mitati, Porini Association, Kenya Keefe Kewesi, Econc –Uganda chapter,Uganda. Allan Babunga, ARP East Africa Stephen Owoko, ADF, Kenya Gabriel Nyanjini, AFYA group, Kenya Vincent Maroq, Mara River Resource, Kenya Enoh Raymond, GLOHEDEP,Nigeria Lawrence Kabuthi, ILYEPRO, Kenya Ann Mumbi, USIU, Kenya Tom Deiters, Africa Ecology, Kenya Munanairi, KVDA, Kenya Stephen Kimani, SEATINI, Uganda Enoch Manwa, SOCF, Kenya Esther Munda, MWAFO, Kenya Raychelle Injete, Westwise, Kenya Mowana Rajad, OUT, Tanzania Murtala A. Mohd, GEDI Nigeria, Nigeria Anatole Bandu, ADEBECO, Congo DRC George Opiyo, NAREC Kenya Rosette Businge CEEWA, Uganda Eliud Ngunjiri, RODI-Kenya, Kenya Peninah Kyarimba, VECO - Uganda, Uganda Geffrey Duma, VECO – Uganda, Uganda Ronald Buke, Black Art, Uganda Caroline Anonya, ISEERM, Kenya Regina Mwanza, ZCD, Zambia Martha Simukounda, EGCAZ, Zambia Peter Malomba, Sacred Africa, Kenya Nancy Muthiani, Green Belt Movement, Kenya Esther Mutiga, Green Belt Movement, Kenya Sena Alouka, JVETogo, Togo Muthee Thuku, Afripad, Kenya Senteu Ole Kimirri, Yiaku Peoples Assocoation, Kenya Vincent Ntekemu, Saru Enkiteng, Kenya Rachel Wanyatu, Gramwa Designs, Kenya W Wambui, Granwa Designs, Kenya K Martin, Ecosystems, Kenya

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Robert Koigi, UON, Kenya Edris N. Omondi, CGP, Kenya Dr Macharia Githigia, SCAN, Kenya Anne Nderitu, MKADI, Kenya Wanjiru Kakai, ROC, Kenya John Mburu, SELF, Kenya Lucas Sinda, Mara River, Kenya Enguday B., PAC, Ethiopia Areb Giri Mai, Enda-Ethiopia, Ethiopia Sue Edwards, ISD, Ethiopia Dagmalit Gilas,Ursnon Utus, Ethiopia, Ephrem Fetene, YNSD, Ethiopia Kassahun Belete, YSND, Ethiopia Biniam Tesfaye, Merewa Ethiopia, Ethiopia Tigist Teregaya, Tana Keben Digen Haden Assn, Ethiopia Meseret Mulugeta, CRDA, Ethiopia Zegeye Asfau, HUNDEE, Ethiopia Mekonnen Tola, Inter Africa Group, Ethiopia Kiflu Gebrewold, CDRA, Ethiopia Mdunwayo Onesplace, OAG, Burundi Yabrurt, ACORD, Ethiopia Abiy Mekonna, ACSO, Ethiopia Ore Peleing, ANCRA, South Africa George Mwai, LRF, Kenya James Otonga, NASU,Kenya

A movement for seed diverse GE free zones for Africa- An experience was heard from India and Ethiopia how farmers have been able to create GE free zones by their own and how government authorities have recognized and respected the initiative. The underlying idea is that Africa has the capacity to say no to GMOs and still remain food secure. Indigenous territorial and land rights in Africa_ this was the forum used to present the discussions of the pre Wsf gathering in Giitune, Meru. Culture and biodiversity – In this forum the Kenyan elders from the communities’ Porini is working with had an opportunity of detailing to the world the links between culture and biodiversity. They narrated how through use of culture they have since time immemorial being able to maintain a balance in the immediate ecosystems. They lamented about the modern western industrialization and the evils emanating from the forces of globalization, capitalism and modern religion which are purely extractive and thus a threat to conservation of Mother Nature. Through their discussion they were able to get in a partnership with the indigenous people of India and a loose coalition of Kenya India indigenous peoples Association (KIIPA) was formed. The central communication office will be Porini association, Kenya. This was a huge break through for the two countries.

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Annex 4 8.0 A Call for Building Alliances

AFRICAN BIODIVERSITY NETWORK A NEW SCRAMBLE FOR AFRICA’S REMAINING COLLECTIVE TERRITORIES A CALL FOR BUILDING ALLIANCES

Context A momentum is growing of yet another scramble for Africa’s communal territories in the name of development. Indigenous and local communities are resisting as their territories, associated spirituality, identity and ways of life are being turned into commercial exploitation. A recent study shows that the remaining sixty-five percent (65%) of collectively held territories in Africa are now under threat. These threats are growing under various guises, some of the most prevalent being: extractive industries, tourism, conservancies, push for individual property rights in the name of poverty alleviation bi-lateral and multi-lateral agreements and policies and continuing land reform programmes. This is in the name of mainstreaming Africa into the development process. African principles For indigenous and local communities, territory comprises a complex system of land, livelihood, culture, governance and spirituality which embodies the living, the dead (ancestors) and the yet unborn of all species including humans. This system is held together by a clear understanding of intergenerational responsibility underpinned by core principles such as: Inalienability (no-one can be alienated from the system because ones identity is derived from it) Indivisibility (requires all elements for the whole to function) Perpetuity (inter-generational responsibility) African people’s cultures (spirituality, norms, values and customs) find expression in their native ecological governance systems, which have been primary instruments for the preservation of healthy community ecosystem relationships which have sustained them for centuries prior to colonization and independence. Recognizing Africa’s culturally diverse heritage requires that these territorial systems are respected and legally protected from the latest manifestations of re-colonization from both national and international forces of globalization. The case for an African alliance Consultations with local and indigenous communities determined to resist displacement by asserting their responsibilities, rights and will to maintain their heritage for future generations, are calling for the building of national and regional alliances to prevent Africa’s remaining communal territories from decimation. Lessons from Brazil have re-enforced commitment to avert a landless movement in Africa. As elder Leriman of Yiaaku community says, “We must unite in order to protect our Mother Earth and we her children from being torn apart”. Anyone interested or involved in recuperating Africa’s traditional knowledge, livelihood and governance systems to protect and strengthen territorial resilience please contact: ABN Coordinator on +254 722 250 550, +254 20 4453777, +254 204768766 or [email protected]

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Annex 5 9.0 Participants at the Pre-WSF 2007 NO. 1

NAMES Bakari Sadiq Nyari

Organization RAINS

Country Ghana

2

Liz Hosken

Gaia Foundation

South Africa

3

Wanjiku Mwangi

Porini Association

Kenya

4

Kariuki Thuku

Porini Association

Kenya

5

Tetu Maingi

Porini Association

Kenya

6

Gathuru Mburu

Porini Association

Kenya

7

Thuku Njembui

Karima Forest community

Kenya

8

Beatrice Wachira

Karima Forest community

Kenya

9

Basilius Kagwe

Karima Forest community

Kenya

10

Dr.Mwongo M’tomberia

Giitune Forest community

Kenya

11

Martha Gituma

Giitune Forest community

Kenya

12

Julius Gikundi

Giitune Forest community

Kenya

13 14 15

Andrew Mutwiri Cornelius Kiambati Stephen Leriman

Giitune Forest community Giitune Forest Community Mukogondo Forest community

Kenya Kenya Kenya

16

Daniel Kipianoi

Mukogondo Forest community

Kenya

17

Mwaro Baya

Nyali Malafa community

Kenya

18

Kazungu Tuva

Nyali Malafa community

Kenya

19

Njuguna Gichere

National Museums of Kenya - Meru

Kenya

20

Kennedy Mutati

Mtito Ndoa community

Kenya

21

Adam Hussein

CEMIRIDE

Kenya

22

Muthee Thuku

AFRIPAD

Kenya

23

Mumbi Murage

AFRIPAD

Kenya

24

Mohammoud Abdulai

MELCA

Ethiopia

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