Communication 588/15 Minority Rights Group International and Environnement
Ressources Naturelles et Developpement (on behalf of the Batwa of Kahuzi-Biega
National Park, DRC) v. Democratic Republic of Congo (DRC)
Summary of the Complaint
1. The Secretaria t of the African Commission on Human and Peoples' Rights (the
Secretariat) received on 7 November 2015, a complaint filed by Minority
Rights Group International (MRG) and Environnement Ressources
Naturelles et Developpement (ERNB) (the Complainants), on behalf of the
Batwa of Kahuzi-Biega National Park (the Victims).
2. The Complaint w as filed against the State of the Democratic Republic of Congo
(hereinafter referred to as the Respondent State or the DRC), a State that
ratified the African Charter on Human and Peoples' Rights (the Africa n
Charter) on 23 July 1987.
3. From the Complainants' presentation, it is understood that:
The Batwa of the Kahuzi-Biega National Park are a hunter-gatherer community
who have lived in the forests of the Kahuzi Mountains for centuries. Their
livelihoods, homes, traditional and cultural way of life, and well-being depend
on these forests and lands. They are recognized by other ethnic groups in the
region as the original inhabitants of the forests.
4. They allege that in July 1937, the Belgian colonial administra tor had by Decree
No. 81/ AGRI established " the Mount Kahuzi Zoological and Forestry
Reserve" a small natural reserve belonging to the Congolese State. But the
Ba twas remained on these lands and occupied them continually and practised
their traditional lifestyles. In 1957, the Kahuzi reserve was extended to include
the Biega forest, thus covering a total land surface area of 600 km2.
5. In November 1970, Law No. 70-316 transformed the zone into a National Park
code-named " the Kah.uzi-Biega National Park" . This change of name came along
with a measure interdicting any human presence in the Park based on a
proposal by the Congolese Institute for the Conservation of Nature (ICCN).
This proposal was supposedly intended to protect gorillas in the eastern low
altitude region. The Batwa families who were using the lands according to
their traditional customary ways of life, were expelled from the forest without
any appropriate means of consultation, nor were they adequately
compensated before or after the evictions meted out to the_!ll. -~-~1·," :
I ·'
,
•
.I•. /,· ' \
1
: • '' (
\•.
\
\
\.,L
I
.
:J )., 2/.,,
,C'
,.•,
. _ _ , _ / / .-
II
6. In July 1975, the Congolese government passed another law, No. 75-238, which
extended the area of the National Park from 60,000 to 600,000 hectares, further
encroaching on the ancestral lands of the Batwa communities, resulting in an
increase in evictions, bringing the number of evicted families since 1970 to
about 6,000, w ithout any compensation or prior consultation. Thou gh other
communities were also evicted, they refused to leave and to date they still live
on their lands in the forests and use some parts for agricultural activities.
7.
According to them, the situation of the Batwas w ho are a vulnerable and
mar ginalised community as a result of some societal prejudices against them,
has worsened considerably d ue to the evictions and their aftereffects w hich
have disrupted their harmonious existence with nature. Currently, they live in
abject p over ty in makeshift camps on the fringes of the forests of other Bantu
villages. They have been deprived of their lands and can no longer practice
their traditional way of life n or even have access to the most basic social
services. Furthermore, they are suffering from a high rate of malnutrition,
m ortality and various diseases. Additionally, the fact that they live among
other majority groups without the same culture or lifestyle makes them victims
of a d eep-seated discrimination in terms of behaviours and attitudes.
8. In order to recover their lands, the Batwa communities have initiated a legal
action against the Congolese government and the ICCN at the District Court
in Uvira, South Kivu (TGI), with the support of ERN D, by alleging the
violation of Law No. 77-001 of 22 February, 1977, governing expropriation for
a public purpose, thus culminating in their arbitrary eviction from their lands
w ithout compensation w hich is a violation of Articles 34(1), (2) and (4) of the
Constitution of the DRC on expropriation.
9. The Complainants allege that they also relied on many prov1s1ons of
international law, in particular, the African Charter on Human and Peoples'
Rights (the African Charter) to claim the specific righ ts of the victims,
including the right to life; the right to practice one's culture and religion, the
right to freely dispose of their natural wealth and resources, the righ t not to
suffer any discrimina tion, as well as the right to health and education.
10. The Dish·ict Court gave a judgement on 28 February 2011, in w hich it declared
that the case bordered on the issue of the constitutionality of the laws
establishing and extending the boundaries of the Park (Laws No. 70-316 of 30
November 1970 and No. 75-238 of 22 July 1975). It therefore ruled that it la~k~d
jurisdiction to hear the case on its merits and dismissed the Comp laint:' .
/
2
11. The Batwas appealed the judgment at the Court of Appeal of Bukavu by
arguing, inter nlia, that the original application never requested the judge of the
District Court to rule on any issue of constitutionality, and that by so doing,
the court ruled ultra petita. Notwithstanding the relevance of the arguments
put forward and submitted on behalf of the Batwa victims, the Court of Appeal
confirmed the judgment of the District Court in all its provisions and
dismissed the appeal.
12. In December 2013, the Ba twas lodged an appeal in cassation with the Supreme
Court of Kinshasa, by alleging, among others, that the judges of the two lower
courts had distorted the meaning of Article 34 of the Consti tution by viewing
it as the object of the application and not as the source of the relevant law and
asserting that the dispute bordered on an issue of unconstitutionality. To date,
the case is still pending at the Supreme Court and no progress has been made
in recent years.
The Complaint:
13. The Complainants allege that the following Articles of the African Charter
have been violated: 1, 2, 4, 8, 14, 16, 17, 21,22 and 24.
Prayers:
14. The Complainants are requesting the Commission to:
a. Grant provisional measures to the Batwa community of the Kahuzi-Biega
Park as a means of protecting the community from any possible acts of
harassment and intimidation that may arise from the seizure of the
Commission;
b. Declare the Communication admissible;
c. Establish that the facts constitute a violation by the Respondent State of the
following articles of the African Charter: 1, 2, 4, 8, 14, 16, 17, 21,22 and 24.
The Procedure
15. The Complaint was received by the Secretariat of the African Commission on 2
November, 2015 and the Secretariat ackn owledged receipt on 21 January, 2016.
16. At the 19 th Extraordinary Session held from 16 to 26 February, 2016 in Banjul, The
Gambia, the African Commission considered the Communication and decided to
/
3
I
\.I
be seized of it. The Commission however decided not to grant provisional
measures to the Respondent State since there was no conclusive evidence to
warrant such measures.
17. By letter d ated 3 March, 2016, the Secretariat informed the Complainants and the
Respondent State about the seizure of the Communication and simultaneously
sent a copy of the petition of the Complainants to the Respondent State and urged
the Complainants to submit their arguments on admissibility w ithin two (2)
months from the date of notification.
18. On 29 April 2016, the Secretariat received the arguments of the Complainants
w hich were then forwarded to the Respondent State and the latter was urged to
present its arguments within two (2) months from the date of notification.
19. At its subsequent sessions, the Commission p ostponed the consideration of the
Communication several times, pending receipt of the Respondent State's
arguments, which were never submitted despite numerous reminders, namely
throu gh :(ACHPI1/COMM/588/15/RDC/319/16;
ACHPI1/COMM/588/15/RDC/783/16 ;ACHPI1/COMM/588/15/RDC/913/16 ;A
CHPI1/COMM/588/15/RDC/1183/16 ;ACHPI1/COMM/588/15/RDC/1888/16;
ACHPI1/COMM/588/15/RDC/75/17 ;ACHPI1/COMM/588/15/RDC/219/18; et
ACHPI1/COMM/588/15/RDC/1766/18).
20. Since the Respondent State had gone beyond the prescribed timeframe and
failed to make any request for extension of the deadline, the Commission
instructed the Secretariat to prepare a decision on admissibility by default after
the Parties had been duly informed.
21. During its 64 th Ordinary Session held from 24 April to 14 May 2019 in SharmEl-Sheikh, Arab Republic of Egypt, the Commission examined the
Communication and declared it admissible.
22. By letter and note verbale da ted 23 May 2019, the Secretariat informed the
parties of the decision on admissibility and requested the Complainants to
submit their arguments on the merits within sixty (60) days in accordance with
Rule 108(1) of the Commission 's Rules of Procedure 2010 in force at that date.
23. On 30 May 2019, the Complainants requested an extension of the deadline for
submission of their arguments on the merits which was granted by letter dated
11 June 201,.9. ··.-
'
I
I
\\
/
4
24. On 12 September 2019, the Complainants submitted their arguments on the
merits w hich were transmitted to the State by note verbale dated 11 October
2019.
25. By Letters and Note Verbales dated 3 January and 12 March 2020, the
Secretariat informed the parties that the Commission had decided to defer its
decision on the merits to a later Session pending the State's submissions which
were due on 7 April 2020.
26. The State has yet to submit its arguments and has not requested any additional
time for submission.
27. After the 68 th Ordinary Session held virtually from 14 April to 4 May 2021, the
parties to the Communication were informed by letter and Note Verbale, that
the Commission has decided to draft a decision on the basis of the elements in
its possession, given that the Respondent State has not yet submitted its
arguments on the merits.
THE LAW
Admissibility
The Complainants' submissions on Admissibility:
28. The Complainants maintain that the Communication must be declared
admissible on grounds that it fulfils all the requirements stipulated under
Article 56 of the African Charter.
29. At the outset, they emphasise that it is important to note that for the
Commission to be seized of the Communication, the Complainants must
present a case that meets the prima facie conditions set out in Article 56(5).1
30. The Complainants maintain that the domestic remedies are not available,
effective or sufficient since there are no sufficient domestic remedies in the
'Communication 71/92- Rencontre Africaine pour la Defense des Droits de /'Homme v/ Zambia ( 1996) AO-IPR para 10;
Communication 368/09 - Abdel Hadi, Ali Radi1 and others v/ Republic of Sudan ( 2013) ACHPR para 44 ;
Communication 413/12 -David Mendes (represented by the University of Pretoria Human Rights Centre) v / Angola
(2013} AO-IPR para 52; Communication 155/96 - Social Economic Rights 'Action Centre (SERAC) and Centre for
Economic and Social Rights (CESR) v/ Nigeria (2001) ACHPR para.38.
I.
I
5
\
DRC to address the situation of the Batwas by way of reparation of the
violations and specific harms alleged in the Communication.
31. They further allege that the national procedures initiated by the Batwas with
tribunals and Courts in the DRC, including seizure of the Supreme Court, have
been unduly prolonged for more than eight years, which represents w1due
delay in the light of the Commission's jurisprudential practice, including those
of the Inter-American Court of Human Rights (CIDH) and the European
Commission on Human Rights (CEDH). They allege that upon seizure of the
Commission in November 2015, no date had been set for the hearing whereas
the Supreme Court had been seized on 20 December, 2013.
32. The Complainants also allege that there is no law protecting group and
individual rights of Ba twas regarding their ancestral lands and their resources.
They further maintain that there is no procedure for demarcation of lands nor
for granting titles to indigenous communities on lands they occupy and
depend on for their livelihood and survival. Furthermore, in the event of
expropriation, there does not exist any effective legal mechanism for the
restitution of traditional lands of indigenous communities. As a result, the only
potential means of redress open to the Batwas are civil remedies generally
available to persons who oppose unjustified eviction pursuant to the
Ordinance-Law governing expropriation of lands for a public purpose. These
civil redress mechanisms are not adequate nor sufficient to deal specific
violations contained in the Complaint since they do not prov ide the possibility
for Batwas to ascertain their rights to their ancestral lands.
33. The Complainants argue that Article 56(5) does not require them to exhaust all
discretionary and/ or non-judicial remedies2 . In support of their argument,
they point out that the Commission clearly established in its Communication
375/09-Priscilla Njeri Echaria (represented by the Federation of Women
Lawyers of Kenya and the International Centre for the Protection of Human
Rights) v. Kenya that « the domestic remedy referenced in Article 56(5) involves a
remedy of the judicial 111.easure sought from the courts "which shall not be subject to
the discretionan; power ofa public authorih/' [. ... ] Only mandaton; domestic remedies
must be exhausted » 3 Consequently, the Batwa are not required to exhaust all
2
Communication 231/99 -Avocats Sans Frontieres (pour le compte des Bwampamye) c/ Burundi (2000) CADHP paras
22-23; Communication 268/03 -lllesanmi c/ Nigeria (2005) CADHP pa ra 42, See also Communication 211/98 -Alfred
B. Cudjoe c/Ghana (1999) CADHP para. 14 & Communication 313/05 -Kenneth Good C/ Republic of Botswana (2010)
CADHP para 88
3 Communication 375/09 -Priscilla Njeri Echaria (represented by the Federation oj-W<ffffen-Lawyers of Kenya and the
International Centre for the Protection of Human Rights) v/ Kenya (2011) par~53
•
,
I
6
I
/
non-judicial or discretionary domestic remedies that may or may not be
available in the DRC.
34. Furthermore, and notwithstanding the aforementioned arguments, the
circumstances of this present case are such that the requirements of Article
56(5) of the Charter must be deemed to have been complied with. In fact,
according to the Complainants, the requirement of having exhausted domestic
remedies is based on the principle according to which the Respondent State
must be aware of any alleged violation in order to have the opportunity to
provide remedies within the confines of its own national legal system before
they are submitted to the Commission. According to the Complainants, the
Respondent State had knowledge of the content of their Communication for
decades and had not reacted. Consequently, the rationale for Article 56(5) has
been fully complied with.
35. With respect to the requirement of Article 56(6), the Complainants submit that
this requirement is met since the Communication was filed with the
Commission "within a reasonable period of time" after the date on which the
d omestic procedures initiated by the Complainants (if they were to be
considered as "domestic remedies") were to be deemed to have been exhausted
in terms of what constitutes a "reasonable period of time within which to
exhaust domestic remedies" under Article 56(6).
36. They also point out that in its Communication 308/05 - Michael Majuru v.
Zimbabwe4 , the Commission considered that "six months seems to be the usual
standard" . It explained, however, that "each case must be dealt with on its own
merits" and thus, "where there are valid and compelling reasons for the Complainant
not to submit his or her complaint in time, the Commission may consider the complaint
in order to ensure fairness nnd justice"5
37. The Complainants consider that domestic remedies within the meaning of
Article 56(5) that need to be exhausted do not exist. However, the Batwas
sought to exhaust all available domestic mechanisms before submitting the
Communication. Moreover, they state that the Communication was submitted
within six months of being informed that the Public Prosecutor's Office had
not produced its conclusions in the app~al proceedings before the Supreme
Court, contrary to the law in force.
·.•) -.\'.
\
/
4 Communication 308/05 -Michael Majuru v/. Zi111babwi (2008) ACHPR pa ra. 109
5 /bidem
7
38. The Complainants request that the Commission consider the deadline for
submission to be reasonable.
39. Thus, in the absence of a response from the Respondent State concerning their
findings and arguments, the non-exhaustion of domestic remedies cannot
stand in the way of the Batwa victims. In any case, it is incumbent on the latter
to prove to the contrary by establishing in particular that the non-exhausted
redress mechanisms meet the requirements of availability, effectiveness and
sufficiency of the Commission. 6
The Commission's analysis on Admissibility
40. The Commission notes that in spite of the numerous requests sent to the
Respondent State to obtain its arguments on the admissibility of the
Communication in question, in accordance with Rule 102(2) of its Rules of
Procedure, the latter State has failed to make any submissions.7
41. In accordance with its well-established jurisprudence on the matter, the
Commission decides on the basis of the facts communicated by the Complainants. 8
42. Article 56 of the African Charter prescribes seven (7) conditions that must be cumulatively
met for a communication to be declared admissible by the Commission.
43. The Commission notes that the Complainants submitted arguments on all the
criteria required under Article 56 of the African Charter. It observes that in this
present case, only the conditions provided for under Article 56 (5) of the African
Charter on exhausting domestic remedies could be challenged by the Respondent
State.
44. The Commission notes that the other requirements stipulated in Article 56 of the
African Charter were complied with in the Communication. More precisely, the
author of the Communication has been identified; the Communica tion shows
primn facie violations of the African Charter by a State Party; it is inconsistent with
both the Constitutive Act of the AU and the African Charter. The Commission also
does not find any insulting or disparaging language in the Communication and it
6 Communkation 268/03 -1/sanni v. Nigeria (2005) ACHPR pa ra 46 ; Commun ication 275/03 -Article 19 v . Eritrea
ACHPR para, 51.
See paragraph 19
.
8 See Communications 25/89, 47/90, 56/91, 100/93, Com1111111icatio11 60/91, Co1111111111icatio11159/1996,
7
Co1111111111ica tio11 276/03 and Co1111111111icatio11 292/04.
,.
8
\
\
is not based on news disseminated through the mass media and it does not deal
with cases or claims which have been brought to the attention of an international
dispute body or settled by such a body.
45. The Commission is satisfied that the five (5) conditions set out in sections 56 (1),
(2), (3), (4) and (7) are met. This leaves paragraphs 5 and 6 of Article 56 of the
Charter.
46. According to Article 56(5), Communications "must be sent after the exhaustion of
domestic remedies, if any, unless it is obvious to the Commission that the procedure for
such remedies is being unduly prolonged ". In its jurisprudence, the Commission
maintained that three major criteria must be met in determining whether domestic
remedies have been exhausted and if that is the case, they must be available,
effective and sufficient9, while also noting that " A remedy is considered available if the
petitioner can access it without any obstacles whatsoever; it is deemed effective if it offers a
prospect of success and it is deemed sufficient if the complaint is upheld" .10 Where one of
these characteristics is not present, the requirement of exhaustion of domestic
remedies is deemed not to have been met as stipulated in Article 56(5).
47. In this present Communication, the Complainants maintain that domestic
remedies have not been available, neither have they been effective and sufficient
to provide remed y as a result of the unduly prolonged nature of the procedure
initiated with the aforementioned jurisdictions.
Unavailability of Remedy
48. The Complainants claim that the District Court (TGI) of Uvira and the Court of
Appeal of Uvira have successively declared themselves incompetent on the
grounds that the issue raised by the Complainants falls within the realm of
constitutionality. They indicated that they had been obliged to refer the matter to
the Supreme Court, but that no hearing had been scheduled up to the date on
which the case was referred to the Commission.
49. The Commission has clearly established that a remedy is available if the petitioner
can have access to it without any hindrances. In this specific case, the successive
abandonment of claim by the District Court and the Appeal Court on grounds of
an unstated allegation by the Complainants can cause an obstacle since it
compelled the latter to seize the Supreme Court, thus prolonging the waiting time
9 Communication 147/95-149/96 - Sir Dawda Jawara v/ The Gambia (2000) ACHPR para 31
10 Idem, para 32.
9
of the victims to seek redress for their grievances. Moreover, since the sole purpose
of the Supreme Court's referral is to determine whether or not the Congolese courts
have jurisdiction over the Complainants' claim, the dismissal of the Appeal would
de facto result in the unavailability of remedies.
50. The Commission is of the opinion that in this specific case there is a de facto
unavailability of remedy and therefore has decided to receive the Complainants
based on this submission.
Ineffectiveness of the Remedy
51. The Commission considers that the Complainants have clearly demonstrated the
w ill to exhaust the existing remedies despite the various obstacles encountered,
coupled with the uncertainty as to their effectiveness, and with no real prospect of
success for the victims.
Inadequacy of the remedy
52. In its Communication 147/95-149/96-Dawda Jawara v. The Gambia, the
Commission established that a remedy is considered sufficient if it is capable of
redressing the grievance11 .
53. The arguments previously developed by the Complainants, particularly those
concerning the absence of a legal framework conducive to the resolution of their
grievances and the declared incompetence of the courts seized of the case, reinforce
the Commission's conviction, based on its jurisprudence, that a rem edy that does
not present all the guarantees required to obtain the desired solution or at least to
guarantee conclusive prospects of satisfaction, cannot be considered sufficient12. In
the case in point, it appears that the domestic remedies do not have any likelihood
of resolving the problem, and cannot be considered sufficient.
Unduly Prolonged Remedy
54. In its Communication 293/04- Zimbabwe Lawyers for Human Rights and Institute
for Human Rights and Development in Africa /Zimbabwe 13, the Commission
asserted the need to take into consideration the circumstances of the case and the
11
See note 3 para. 32
i2 Id.
13 African Commiss ion on Human and Peoples' Rights, decision on Communication 293/04 Zimbabwe Lawyers fo r
Human Rights and Institute for Human Rights and Development in Africa /Zimbafrwe, ava ilable at:
http://www.achpr.org/ fr/ communications/ decision/ 293.04/
10
I
:
/.
'\
) ., .\
/
\
\
.__,,
)
., /
reasons put forward to justify the prolongation of the remedy in order to determine
whether the prolongation is normal or abnormal.
55. From the analysis of the arguments of the Complainants, it appears that the
procedure for domestic remedies is unduly prolonged, particularly in the light of
eight years of proceedings already gone by at the lower courts in addition to two
years of seizure at the Supreme Court for w hich a hearing date is yet to be
scheduled. Furthermore, considering that the sole purpose of the application to the
Supreme Cour t is to rule on a question of constitutionality before referring the case
to the lower courts for examination on the merits, it is clear that there is a lack of
expediency in the handling of this case, which in this case constitutes an abnormal
extension of the remedies.
Reasonable time
56. Finally, w ith regard to the requirement in article 56(6) of the African Charter that
the Communication must be "submitted within a rensonnble time after the exhaustion
of domestic remedies or after the date on which the Commission considers that the time
limit for the submission of the Communication has expired". Having already established
the fact that appeals are abnormally prolonged, the Commission should confirm
whether the time limits for submissions meet its criteria.
57. The African Charter only provides that communications must be submitted
I
"within a reasonable time 11 which is not defined. The Commission acknowledged
in Communication 308/05-Michael Majuru v. Zimbabwe14, that 11 six months seems
to be the usual standard" for bringing a case before the Commission after the
exhaustion of domestic remedies15 . But it also emphasised that each case must be
dealt with on its own merits, stating that if there are valid and compelling reasons
for the Complainant not to be able to submit his or her complaint within the time
limit, the Commission may consider the complaint in order to ensure fairness and
justice 16
~
58. In the case at hand, the Complainants ind icated that they had filed a complaint
with the Commission six months after being informed that the Public Prosecutor's
Office had n ot given its opinion in the appeal procedure before the Supreme Court,
•
contrary to the law in force.
59. On the basis of the above facts and in accordance with its jurisprudence, it appears
to the Commission that the time limit within which the matter w as referred to it,
can be considered reasonable and it accepts the Complainants' argument on this
ground.
Decision of the Commission on Admissibility
60. In the light of the foregoing, the African Commission on Human and Peoples'
Rights declares the present Communication admissible pursuant to Article 56 of
the African Charter.
On the merits
The Complainants' Pleas on the Merits
Alleged violation of Article 1
61. The Complainants allege a violation of Article 1 of the Charter, w hich states that
Member States parties to the Charter recognize the rights, duties and freed oms set
forth therein and undertake, to ensure their observance by adopting legislative or
other measures for their implementation.
62. In support of their allegations of a violation of this provision of the Charter, the
Complainants base their argumen t on the Communication Dawdn Jawara v. The
Gambia (2000) in which the Commission held that the obligation under Article 1 is
a "mandatory" obligation in the sense that States Parties to the Charter have
undertaken to adopt legislative or other measures to give effect to it. The
Complainants state that the obligation imposed by Article 1 is not an obligation of
obligation of result.
diligence, but rather
an
63. Referring to the Commission's jurisprudence m the Communication Kevin
Mgwangn Gunme et al. v. Cameroon (2009), the Complainants state tha t it is because
of the mandatory nature of Article 1 above tha t the Commission itself has in some
instances found it to be violated without the Complainant's having referred to it.
They ask, therefore, that if the Commission finds any violation of the articles of the
Charter, then the Respondent State must have violated Article 1.
Alleged violation of Article 2
Batwa of Kahuzi-Biega is reflected in the lack of compensation following their
eviction, the fact that other non-Batwa communities are allowed to remain in the
KBNP, the community1s lack of land tenure and access to basic social services
outside the forest, and the absence of Batwa representation in the political and
administrative institutions of the DRC.
65. The Complainants state that the Respondent State has allowed other non-Batwa
communities to remain in the KBNP despite national legislation prohibiting
human presence and activities in the park. According to the Complainants, such
discriminatory application of the law constitu tes a violation of Article 2 because,
they insist, 'there is no objective justification as to why other non-Batwa
communities have been allowed to remain in the park'. They claim that,
furthermore, non-Batwa activities were more damaging to the environment than
Batwa activities, which they claim were favourable and protective of the
environment.
66. The Complainants submit that the discrimination against the Batwa is also
manifested in 'access to basic social services'. According to the Complainants, the
Batwa do not have access to basic social services because "they are unable to access
schools and health centres, water, sanitation and infrastructure due to their state
of poverty after eviction and the poor quality of the land on which they are allowed
to settle.
\
67. The Complainants allege that another area of discrimination against the Batwa
relates to political representation and participation. They claim that the Batwa are
not represented in 'the political, institutional and administrative institutions of the
DRC', which excludes them from the process of governance and decision-making
on issues that affect them.
68. The Complainants argue that the State has no 'objective' and 'reasonable'
justification for this discrimination against the Batwa, and that it has therefore
violated Article 2 of the Charter.
Alleged violation of Article 4
health care and social services. The Complainants insist that the existence of the
Batwa in conditions of 1destitution has resulted in increased rates of maternal
mortality, infant mortality, malnutrition and morbidity in the community 1•
70. The Complainants also p oint out that the Batwa continue to be subjected to
violence by State agents, in the form of extrajudicial killings of individuals trying
to enter the fores t in search of food and traditional medicin es. For all these reasons,
the Complainants conclude that the DRC has violated and continues to violate
Article 4.
Alleged violation of Article 8
71. The Complainants allege a violation of the right to freedom of religion under
section 8 of the Charter. In support of this allegation, they rep ort that the KahuziBiega forest is the centre of the Batwa's religious and spiritual life. According to
the Complainan ts, the religious beliefs and practices of the Batwa are in timately
linked to their traditional way of life in the Kahuzi-Biega forest.
72. In the same vein, the Complainants argue that the eviction of the Batwa from the
Kahuzi-Biega forest has deprived them of access to their ancestral lands, which not
only prohibits them from worshipping their gods and ancestors, but also prohibits
them from organising their religious ceremonies in the forests and from properly
burying their d ead in their ancestral homes
73. In light of these facts, the Complainants conclude that the DRC has violated Ar ticle
8 of the Charter.
Alleged violation of Article 14
I
74. The Complainants allege a violation of the right to property under Article 14. They
point out that the eviction of the Batwa community constitutes a serious
encroachment on the Batwa's right to property that 1is not in accordance with
applicable law and is totally disproportionate to a public need or general
community interest'.
75. In support of this allegation, the Complainants state tha t the Kahuzi-Biega forest
is the ancestral hom e of the Batwa community and that the community draws
benefits from the forest's resources and the sacred sites erected there. They add·
that the Batwa have a 'symbiotic relationship with the land 1 and that they rely on
this land and its forest to sustain all aspects of their economic, social, cultural
14
•
religious life. They report that these Batwa have exercised a 'form of indigenous
customary tenure, holding the land through a form of collective ownership'.
76. The Complainants argue that some of the uses that the Batwa made of this forest,
including m odest houses built from branches, leaves and mud, as well as custommade tools and traditional clothing made from animal skins and tree pods, is 'an
indication of traditional African ownership'. According to them, it was rarely
written as a codification of rights or titles, but was eventually understood by
society through "mutual recognition and respect for property.
77. The Complainants point out that the seriousness of the DRC's infringement of
these property rights is encapsulated in the fact that it has attempted to sever the
Batwa's relationship with the central element of their cultural identity, which is the
forest. According to the Complainants, the Batwa have been evicted and
expropriated from their communal lands, relegating them to an existence defined
by poverty, discrimination and social marginalization.
78. The Complainants go on to state that this infringement of property rights by the
DRC was not justified by either the public interest or the general interest of the
community. Furthermore, they insist that the Batwa were better protectors of the
environment during the time they lived in the Kahuzi-Biega forest.
79. The Complainants also indicate that this infringement was not compliant with
existing laws either. They argue that at the time of the eviction, the forest was still
"under indigenous reservations," which they say makes the eviction illegal under
domestic law. The Complainants add that the regime of expropriation governed
by a 1977 law was not followed, since the Batwa were neither informed of the
eviction nor compensated.
Alleged violation of Article 16
80. With regard to Article 16 of the Charter, the Complainants allege that the DRC
violated the Batwa's right to health 'by evicting and exclud ing them from the
Kahuzi-Biega forest, cutting off their sources of food and medicinal plants, and
failing to implement positive measures to ensure their non-discriminatory access
to health care, education, hygiene, food, drinking water, sanitation and adequate
_.::.:...__ .. •
-.Q'\ , UtA~ <t,t •. ,>.
i..,~of,.,tt,_~llP. IA• • L •. ',\
0:
1·
~
-
.
•
•
'
1/.:
..;;{7.,\\
' \\
\!~..,,~,
\
·,1\
f.
'. '.7
Ii
-.7,)~.•/
\'° \~~C-, ..
'-
4 ,.-•~r.,,.,
-,,
•
.
--
"~
.
15
81. In support of their allegations, the Com plainants argue that by expelling the Batwa
from the Kahuzi-Biega fores t, the DRC has impeded the availability of health care
that is dependent on traditional medicines and their particular health practices.
They add that the DRC has also failed to make health care accessible in all its
dimensions (as d efined by the UN Committee on Economic, Social and Cultural
Rights (CESCR), which include physical accessibility, economic accessibility,
information accessibility and non-discrimination.
82. The Complainants reiterate that by evicting the Batwa, the DRC has failed to
respect, fulfil and protect their underlying health rights, including the right to
food, water and sanitation.
Alleged violation of Article 17 (1)
83. With regard to Article 17(1), w hich protects the right to education, the
Complainants allege that the eviction of the Batwa from the Kahuzi-Biega forest
violated the right to education in all its aspects as set out in the Principles and
Guidelines on Economic, Social and Cultural Rights in Africa (« Pretoria
Declaration »)
Alleged violation of Article 17 (2) et (3)
84. Article 17(2) and (3) protects the right to culture. The Complainants allege that the
eviction of the Batwa violated their right to culture because the DRC denied them
access to their traditional lands in the Kahuzi-Biega fores t and its spiritual sites.
85. In fact, the Complainants argue that the DRC has violated the right to culture
under Article 17(2) and (3) in two respects. Firstly, they state that by evicting them
and 'prohibiting them from entering ancestral lands, the DRC has impeded the
Batwa's access to cultural sites and their right to engage in traditional, territorybased cultural practices and rituals'. Secondly, the Complainants explain that the
DRC has violated the Batwa's right to culture 'by irreversibly damaging their
traditional way of life, in particular by preventing them from accessing traditional
forest-based knowledge, w hich is integral to the Batwa's distinct cultural identity
and way of life'.
births, dealing with family conflicts, remedying drought, sterility or illness, and
promoting good luck in hunting. They indicate that because of this exclusion from
the Kahuzi-Biega forest, the Batwa have lost their cultural identity.
87. Regarding the second aspect of this violation, the Complainants allege that the
Batwa have a symbiotic relationship with the forest and that this relationship gives
them sp ecial knowledge about the forest that they pass on from generation to
generation. The Complainants reiterate that, as a result, 'the Batwa's relationship
with their trad itional lands and resources is essential to their w ay of life and
ultimately to their preservation and survival as a distinct people'.
88. The Complainants allege that the DRC's interference with the Batwa's right to
culture is neither justified nor proportionate.
Alleged violation of Article 21
89. Complainants allege a violation of Article 21, which guarantees the right of peoples
to freely disp ose of wealth and natural resources, in three respects: throu gh their
eviction, the Batwa have been denied access to their natural resources; the DRC
has benefited from and/ or allowed others to exploit them without consultin g and
compensating them; and finally, the DRC has failed to prevent environmental
degradation of the natural resources of the forest that were beneficial to the Batwa.
90. With regard to the first aspect, the Complainants allege that since their eviction,
the Batwa have no longer had access to the natural resources of the forest and that
w henever they have tried to enter the forest to collect these resources, they have
been fined, imprisoned and even subjected to excessive violence by State agents.
'
91. With regard to the second aspect, the Complainants allege that the forest has
significant economic activity, including various forms of agricultural exploitation. 1
They claim that by undertaking to dispossess the Batwa of their ancestral lands,
the DRC has not prevented other groups from illegally extracting and exploiting
the same resources through these various agricultural activities. According to the
Complainants, by exploiting and profiting from the natural resources of the
Kahuzi-Biega forest, or allowing others to do the same without consulting or
compensating the Batwa, the DRC has violated Article 21.
•
deforestation and environmental degradation of the Batwa1s traditional lands and
natural resources. They insist that, on the contrary, the Batwa had managed to
conserve and safeguard these natural resources of the Kahuzi-Kiega forest.
Consequently, they conclude that by causing or failing to prevent environmental
degradation of the natural resources contained in the Kahuzi-Biega forest, the DRC
has viola ted Article 21 .
93. In light of the above, the Com plainants argue that the Batwa, as indigenous
peoples, have an absolute right to freely dispose of their wealth and natural
resources under Article 21(1) and that the DRC has therefore violated it. Finally,
they insist that under Article 21(2), the Batwa are entitled to the recovery of their
land and to an adequate compensa tion for their losses, including a share of the
profi ts from the u se and exploitation of their natural resources.
Alleged violation of Article 22
94. The Complainants allege a violation of the right to economic, social and cultural
development under Article 22. The Complainants argue that the DRC has violated
the right to development through numerous cumulative actions and omissions.
95. Accord ing to them, the exclusion of the Batwa from the Kahuzi-Biega forest
subjected them to conditions that 1deprived them of any meaningful control over
their institutions, culture, traditions and territories 1. They argue that this has had
an impact on their development as a people.
96. The Complainants further submit that the DRC has failed to ensure the Batwa1s
access to basic public services since their eviction I including 1water, sanitation,
health and education - services necessary for the realization of other basic h~man
rights - firmly associated w ith development and the d etermination of ecodomic
and social programs that affect them 1.
97. The Com plainants conclude that, as a result, the eviction of the Batwa from the
Kahuzi-Biega Forest has prevented them from realizing their individual and
collective human potential and ambitions, which they claim is a violation by the
DRC of their rights under Article 22 of the Charter.
98. In particular, the Complainants consider that the DRC has violated the Batwa 1s
right to development under Ar ticle 22 in two fun damental ways. First, they
consider that the State did not consult them or obtain their prior consen t before
classifying the Kahuzi-Biega forest as a national park, before evicting the
~::~~
, . F,~,
t; ,
,,
18
~,~
'•It
:
,~ I
\ •• '4
.
1\
'
.
t !
,. .
_.,,:; .._: ., "," . •
~
their ancestral lands and before determining their capacity in terms of conservation
that might be appropriate to conserve the Kahuzi-Biega forest. Instead, they argue,
the Batwa are being denied access, use, and participation in decisions abou t their
an cestral lands. This threatens 1their traditional ways of life and their collective
development in accordan ce with their right to self-determination.
99. Secondly, the Complainants allege that the DRC has failed to fulfil the Batwa 1s
right to development as an indigenous people. They contend that it was the DRC's
obligation to ensure that the Batwa 1retain control over their institutions, culture,
traditions and territories in order to contribute to their collective development and
well-being as a traditional people 1• To the contrary, their eviction from the KahuziBiega forest has forced them to live in miserable conditions, even thou gh the forest
used to provide them with everything they needed to meet their basic needs. They
maintain that the degradation of the Batwa's living conditions is a consequence of
the DRC's actions, amplified by the fact that it has not taken the necessary
measures to mitigate the effects.
Alleged violation of Article 24
100. Article 24 protects the right of all peoples to an adequate and comprehensive
environment for their development. The Complainants argue that by evicting the
Batwa from the Kahuzi-Biega Forest, the Government has failed to provide them
with a favourable environment. According to them, the Kahuzi-Biega forest is the
only favourable environment for the Batwa. They point out that the right protected
by Article 24 includes not only the protection of the natural environment from
pollution and environmental degradation, but also 1the obligation to take measures
to provide the community with an environment that enables it to develop
economically, socially and culturally 1•
101. The Complainants allege that under Article 24, the DRC has breached three
main obligations, namely the obligation to respect, the obligation to protect and
the obligation to provide.
102. Regarding the obligation to respect, the Complainants argue that the State has
an obligation to put in place internationally acceptable expropriation rules that
provide safeguards against arbitrary dispossession. They insist that these
measures should detail the process and standards to be applied 11 including
consultations with affected members of society, timely notification, payment of
adequate compensation and assistance for rehabilitation. The Complainants
further state that the Batwa had a special bond with the land of their ancestors s&,u1c••i: ,...
{•· . .\
r.• {(Y~f~v-u·~;\
1/•-~'~ ~e,l'<P•F•••
•J '
~
,'!
19
',
•
I
•
- .. .
, •
\ I
..,
• ;
'\
r
""f
I
._,,,
Q.
j
I
: •
.-. '
~
~\:
"\ :
'
i~
-
• • _ ._ ;; ;
;
".·
~
.'
I
•
that ''nothing can adequately replace the loss of the forest and no land can offer
them similar cultural and material benefits. They reiterate that evicting the Batwa
from the Kahuzi-Biega forest by violence, without notice or compensation
constitutes a violation of the obligation to respect the Batwa's right under Article
24.
103. As for the duty to protect, the Complainants assert that the State has an
obligation to protect the environment under Article 24. They argue that the
Kahuzi-Biega forest is the only environment conducive to the favourable
development of the Batwa people, and that the State "has an obligation to protect
this environment". In the Complainants' view, "the DRC has failed to safeguard
and protect the environment. They argue that by evicting them, the State has
removed a n effective layer of en v irorunenta l protection. They conclude that this
constitutes a violation of the State' s obligation to protect the Batwa' s right to a
favourable environment.
104. Finally, the Complainants claim that the State has breached the obligation to
provide, which consists of the State's obligation to 'invest in the provision of
necessary social services and physical infrastructure and provide support for the
improvement of the livelihoods of local people ... as well as investing in the benefits
for future generations'. The Complainants allege that the DRC has not taken any
steps to restore the environment and repair the damage, while insisting that in
addition the "key problems faced by the Batwa stem from the lack of access to basic
social services, such as schools and health care".
Respondent State's Submissions on the Merits
105. As indicated above, the Respondent State did n ot submit its observations on the
merits of the Complainants' allegations, despite several letters sent by the
Secretariat and the time it was given in accordance with the relevant provisions of
the Commission's Rules of Procedure.
Amicus curiae submissions
106. Various Organisations, led by the Secretariat of the ESCR - International
Network for Economic, Social and Cultural Rights - submitted an Amicus Curiae
brief, namely: Asia Indigenous Peoples Pact (AIPP), Asociacion Interamerican de
Derechos Ambientales (A IDA), Comision Colombinnn de Juristas (CC]), Due Process
of Law Foundation (DPLF) and Global Initiative for Economic, Soc·
20
/
\~
I' I
f! I
•
\
. .,
n
...,
..
~ ;'
,:
..
.,, ..
.h
Cultural Rights (GI-ESCR). These Organisa tions claim to have experience in
human rights analysis and litigation with respect to indigenous peoples' rights
and economic, social, cultural and environmental rights.
107. While not referring to violations of Charter provisions, the amzcus cunae
provides an interpretation of the rights of indigenous peoples to the lands,
territories and resources they traditionally own, occupy or use. To support
their arguments, they rely on the standards of the UN human rights system, the
Inter-American human rights system, the UN International Labour
Organisation and the standards of comparative constitutional law.
108. Thus, the Amicus Curiae brief concludes that States should harmonise their
environmental protection measures w ith the rights of indigenous peoples over
their lands, territories and resources. It also emphasises that States should
recognise and respect the role of indigenous peoples and their traditional
knowledge in conserving biodiversity; recognise and implement cultural
rights; and respect, protect and fulfil the right of indigenous peoples to free,
prior an d informed consent when adopting environmental measures.
Analysis of the Commission on the Merits
109.
In light of the Respondent State's failure to submit its arguments, the
Commission, in accordance with its jurisprudence17, will proceed with its
consideration of this Communication on the basis of the information at its
disposal. The following analysis also takes into account the Amicus Curiae brief
submitted.
110. The facts as reported indicate that the Congolese State expelled the Batwa people
from their forest without resettling them.
On the concept of indigenous people
111. Asserting that the Batwa are an indigenous people, the Complainants argue that
they are entitled to the protection contained in the African Charter on Human and
Peoples' Rights relating to collective rights, and in accordance with related
17 See Communication 155/96 - Social and Economic Rights Action Centre (SERAC) and Centre for Economic
and Social Rights (CESR) v/ Nigeria (2001) ACHPR para 49; See also Communication 292/04 - Institute for
Human Rights and Development in Africa v/ Angola (2008) ACHPR para 34 and Communication 159/96 - InterAmerican Union for Human Rights, International Federation of Human Rights Leagues, African Meeting for
Human Rights, Nat ional Organisation for
.
s in Senegal and Malian Associatio n for Human Rights v/
Republic of Angola (1997) ACHPR para
<~,·,;;~; ·,' •
,:; , _;-·,·;:,' \ .
r. :' -~. . . 21. /
'/.-$> ..."-1,
,.
.•
.,
/>•,-,f t1 -,,
1
1i-·•· ..,,
.
1
•
\'·
'·
,
•~"'\ ...::...:,..>·.
I
international standards. In support of their claims, they point to the various
statements contained in the decisions rendered by the Commission, as well as by
other international judicial bodies.
112. The African Commission notes that the African Charter, in Articles 20 to 24,
provides tha t peoples can assert their rights as peoples, i.e. as communities. In
this regard, on the question of whether the BATWA constitute an " indigenous
people", the Commission notes that the term contains two concepts that have
been defined. These are the concept of" people" and the concept of" indigenous".
113. With regard to the concept of "people", and on the basis of d efinitions provided
by various experts, who understood this concept as either a "group of human
beings living in socieh; on a given territon; and who, often sharing a communihJ of
origin, present a relatively homogeneous form of civilisation and are linked by a certain
number of shared customs and institutions" 18, or a" group of persons who, not living on
the same territon; but having the same ethnic origin or religion, have the feeling of
belonging to the same communiti/', the African Commission was able to observe
that there is consensus on some objective features tha t a group of individuals
should manifest to be considered as "a people" .
114. It is therefore a question, in particular, of a common historical tradition, racial
or ethnic identity, cultural homogeneity~ linguistic unity, religious and
ideological affinities, territorial connection, economic life, in addition to other
bonds, identities and affinities which they collectively enjoy or are denied - in
particular the rights enumerated under Articles 19 and 24 of the African
Charter19 .
115. With regard to the term "indigenous", the Commission notes that Article 1 of
ILO Convention 169 on "Indigenous and Tribal Peoples" defines them as, inter
alia, "peoples in independent countries who are regarded as indigenous on account of
their descent from the populations which inhabited the country, or a geographical region
to which the countn; belongs, at the time of conquest or colonisation or the
establishment of present state boundaries and who, irrespective of their legal status,
retain some or all of their own social, economic, cultural and political institutions"20.
116. However, the Commission notes that in the African context, the term
"indigenous" is not intended to create a special class of citizens, but rather to
take into account past and present-day injustices and inequalities suffered by
these first inhabitants. This is clear in the work of the African Commission's
Working Group on Indigenous Populations/Communities, which also noted
that the notion of" peoples" is closely related to collective rights 21 .
117. This Mechanism presented four criteria for identifying indigenous peoples:
occupation and use of a specific territory;
voluntary perpetuation of distinctive cultural traits;
self-identification as a distinctive community, as well as recognition by
other groups;
an experience of subjugation, marginalisation, dispossession, exclusion
or discrimination.
118. It also identified some common characteristics of indigenous groups in Africa,
including, but n ot limited to, the various hunter or former hunter groups and
some pastoralist groups, noting the key characteristic for most of them that the
survival of their special way of life depends on their access to, and rights to, their
traditional space and the natural resou;rces it contains
119. It can therefore be concluded that, in general, all definitions of the concept of
indigenous people recognise the linkages between peoples, their lands and their
culture and the fact that such a group expresses its wish to be identified as a
people or is aware that it is a people. The United Nations Working Group on
Indigenous Peoples, recognises that" [ndigenous communities, peoples and nations
are those which, having a historical continuihJ with. pre-invasion and pre-colonial
societies that developed on their territories, consider themselves distinct from other
sectors of the societies now prevailing in those territories, or parts of them.. They form at
present non-dominant sectors of societi; and are detennined to preserve, develop and
transmit to fu ture generations their ancestral territories, and their ethnic identity, as the
basis of their continued existence as peoples, in accordance with their own cultural
patterns, social institutions and legal systems" .22
120. Thus, in addition to a sacred relationship with their land, self-identification is
an other important criterion for determining indigenous peoples. In this regard,
the Inter-American Court considered that the Saramaka people constitute a tribal
community whose social, cultural and economic traditions are different from
21 Communication 276/03 op. cit, para. 149
,,~· •
22 Report of the UN Special Rapporteur of the Sub-Commission on Prevention of Discriminatio,!'.1(~lW{ie.,11on
.
of Minorities on the Study of the problem of discrimination against Indigenous People, para f l ., .,- .
l''.,,r· ' :\
", • 11~-;,\,
•
:·
1:23
• •
.\ .';,. •,,if,
.-.:..7
'
-. • ·4
••
\
~1;_.,,
-.,.v,~ • .._. ...
\
·,,
."
•
✓/
'i
I
:u ·' I
:··
other sections of the national community, mainly because of their special
relationship with their ancestral land, and because they regulate themselves, at
least partially, by their own norms, customs, and traditions.23
121. The UN Panel on Indigenous Peoples also stated that "on an individual basis, nn
indigenous person is one who belongs to these indigenous populations through selfidentification ns indigenous (group consciousness) and is recognized and accepted by
these populations ns one of its members (ncceptance by the group). This preserves for
these communities the sovereign right and power to decide who belongs to them, without
external interference" .24
122. In the present Communication, it appears from the documents and testimonies
available to the Commission that the Batwa community identifies itself as a
distinct social and cultural entity and "considers itself as a distinct people
sharing a unique common history, ethnicity, culture and religion as a traditional
people living in the forest". Moreover, other non-Batwa groups recognise, accept
and identify them by their culture and physical traits.
123. The Batwa have built a sp ecial relationship with their ancestral lands in the
Kahuzi-Biega forest based on a spiritual and material life. For example, H. K.,
one of the Batwa expelled from Kahuzi-Biega, testifies: "Our life is conditioned by
the presence of a forest. It is important for us to hnve access to the park because that is
where our hospital, food and place of worship are. [. ..] we used to hunt, look for yarns to
make traditional loincloths and plates, collect firewood, yams and fruit. » 25
124. In view of the above, the Commission, relying also on its jurisprudence in the
Endorois case, as well as that of the African Court on Human and Peoples' Rights
in the Ogiek case, considers that the Batwa people, as presented in the documents
produced by the Compl~inants, have the characteristics of an indigenous, and
therefore primitive, people. As such, its existence, in all its aspects, is linked to
the environment of this area, which has been declared a national park. Thus, its
eviction from this area without resettlement, if proven, constitutes a general
infringement of its right to existence, as set out in the violations alleged by the
Complainants, which they are entitled to bring before the Commission.
On the alleged violation of Article 2
125.
Article 2 stipulates that "Even; individual sh.all be entitled to th.e enjoyment of the
rights and freedoms recognised and guaranteed in the present Charter with.out
distinction of any kind such as race, eth.nic group, colour, sex, language, religion,
political or any other opinion, national and social origin, fo rtune, birth or other status" .
This provision of the Charter advocates non-discrimination. The Complainants'
allegations of violation of this right draws upon their understanding of nondiscrimination.
126.
The right to non-discrimination is a fundamental right in the contemporary
organisation and design of modern societies.
127.
In the Communication Zimbabwe Lawyers for Human Rights & Institutefor Human
Rights and Development in Africa (on behalf of Andrew Barclay Meldrum) v
Zimbabwe, the Commission defined discrimination as: "any act which aims at
distinction, exclusion, restriction or preference which is based on any ground
such as race, colour [... ] or other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all persons,
on equal footing, of all rights and freedoms" .26
128. Similarly, in the Communication World Organisation Against Torture and the
Ligue de la Zone Africnine pour la Defense des Droits des Enfants et Eleves (on behalf
of Celine) v. Democratic Republic of Congo, the Commission stated that
discrimination is unlawful or unjustified differentiation, i.e. based on one of the
distinctions listed in Article 227. Differentiation necessarily involves an explicit
or implicit, known or assumed comparator.
129. In the Communication Kenneth Good v. Republic of Botswana, the Commission set
out three requirements to be considered in assessing whether there has been
discrimination. Thus, discrimination occurs when equal cases are h·ea ted in a
different manner, when the difference in treatment does not have an objective
and reasonable justification, and if there is no proportionality between the aim
sou ght and the means employed.28 The Commission also stressed that the three
requirements are cumulative and therefore proof of the existence of one of them
automatically implies a violation of the right to non-discrimination.
26 Communication 294/04 -
ZLH R & IH RDA v. Zimbabwe (2006) ACHPR, para 91
27 Communication 325/06- World Organisation Against Torture and the Ligue de la Zone Africaine pour la
Defense des Droits des En/ants et Eleves (on behalf of Celine) v. Democratic Republic of Congoj2015) ACH PR
... v:' • ... . · - ~ •• ,•,• ~•n
! cL')r, • ,
• ,
Para 74
• "'
•
'•
28 Communication 313/05- Kenneth Good v. Republic of Botswana (2010) ACHPR para/2,19
25
//.
(
e:-::_,
:•
( .lfJ -.•, ..,• '\,,
',
•.j,
:l•~~
\
,..,, . .
':.
'I
. •.-'/
-7
,I
,.u •· I'
.
:·; ·/'
;#·;
,,
•
130. In this case, it appears to the Commission that the Batwa have been treated
differently from others without any valid objective or reasonable justification.
Testimonies available to the Commission converge on the fact that non-Batwa
people have always had access to the Kahuzi-Biega National Park despite
national legislation prohibiting human presence and activities within the park.
For example, in the sworn testimony of S. M. of the Twa community, he states:
"Other communities such ns the Tembo, Shi, Hnvu and Rwandophone Hutu with farms,
fields and even villages have not been affected so far nnd continue to make use of the park
by mnking money from minerals, cattle, plants, embers and wood that are sold and they
pay taxes to local authorities on these products". 29
131. K.N., another member of the pygmy community, claimed that " some people from
other communities are illegally exploiting the PNKB without facing any problems from
the park rangers" and that "they apparently have an agreement with the park
authorities" .30 On the basis of all these facts, the Commission concurs with the
Complainants that the Batwa were treated differently from other communities
in the locality of Kahuzi-Biega because of their identity as Batwa, since nonBatwa people were treated more favourably.
132. A related question is whether the DRC had any justification for treating the
Batwa differently from other communities. Although the Respondent State did
not submit its arguments, the Commission is of the view that there is no
justification for such a difference in treatment. Indeed, one of the fundamental
characteristics of national legislation is its general nature. If it only applies to a
specific group, it becomes discriminatory and therefore would violate Article 2
of the Charter.
133. For all these reasons, the Commission concludes that the Respondent State
violated the right to non-discrimination prescribed by Article 2 of the Charter.
On the alleged violation of Article 4
134. Article 4 of Charter provides: "Human beings are inviolable. Even; human being shall
be entitled to respect for his life and the physical and moral integrihJ of his person. No
one may be arbitrarily deprived of this right." This Article promotes respect for the
right to life.
29
See Affidavit of S. M., Annex 100. See ~-1,s~~~p~v!t of F. K., Annex 112; Affidavit of F. K , Annex 114; Affidavit
of M. K., Annex 116. Affidavit of M. N
.tf;~ IT~.iiA.', ·.: ,
30
See Affidavit of K. N. Annex 109 « : ·:"' ._<c:
•/
,
I f l1!
1
•
;•
,'--'-',:•
/i .:.h ❖
-i - · t:1 ,,
I•·
\- . .'
\
~-~.. ...
~
•!·"1
•
~."" I
'~\
26
;·
'
135. The Commission reiterated in the Communication Forum of Conscience v Sierra
Leone that the right to life is the fulcrum of all other rights; it is the fountain
through which other rights flow and that any violation of this right without due
process amounts to arbitrary deprivation of life. 31 The UN Human Rights
Committee emphasises that the right to life "concerns the entitlement of
individuals to be free from acts and omissions that are intended or may be
expected to cause their mrnatural or premature death, as well as to enjoy a life
with dignity" _32
136. The definition of indigenous people shows that this category of the population
is distinguished by its umbilical relationship with its living environment. This
being the case, the Commission notes that the link between the mass eviction of
an indigenous p eople from their living environment, w ithout adequate remedy,
and their right to life is particularly narrow, given that this is a non-derogable
right under international law.33
137. As a result, if indigenous peoples are displaced without resettlement under the
same living conditions, their lives are threatened. For instance, in Yala;e Axa v .
Paraguay, the Inter-American Court ruled that the consequence of the eviction
of indigenous peoples from their ancestral lands could constitute a violation of
Article 4 (right to life), if the community's living conditions are incompatible
w ith the principles of human dignity.34 It thus incorp orated the right to life into
the elements of " public interest" in its jurisprudence.
138. In the Endorois case, the Commission concluded that one of the obligations that
the State must respect as guarantor in order to protect and ensure the right to
life is to create minimum living conditions compatible with the dignity of the
human person and not to create conditions that prevent or impede such
dignity. It insisted that in this regard, the State has a d u ty to take positive and
concrete measures to realise the right to life, especially in the case of vulnerable
and exp osed persons, whose protection becomes of high priority.35
31
Communication 223/98- Foru lll of Co1Lscie1Lce v . Sierra Leone (2000) ACHPR p ara 20.
32 UN Human Rights Committ ee General Comment No. 36 on Article 6 of the International Covenant on Civil
and Political Rights, para 3
33 See General Comm ent No. 3 on the African Charter or:i Human and Peoples' Rights on the right to life (Article
4), para 1
34 lnter-american Court of Human Rights, case of Yakye Axa Indigenous Community v. Paraguay, Judgement of
June 17, 2005; para 160- 178
-. . : ; - . ~
35
Communication 276/03 - op. cit., parf f ~ i\ ..o:.~~t•r.,;; · , '
1/ :, ~-:-,
I:·
•
' ,\
{fc:l(,°1')'9-1
(
'
~
\ I
·-~-,
•
~ . ,,
\
\)
f
t}.
u .. ,
1·
·-,
••. '·
i.
.
•• '"
/
•
'----""
•, : -
·:. ,,'
_.,,
;
I
139. It is not disputed that the Batwa were evicted from their ancestral home, since
the national park exists. There is no evidence that they have been resettled
elsewhere. In particular, the testimonies and documents available to the
Commission provide ample evidence that by expelling the Batwa from their
living environment, the DRC has created conditions that negatively affects their
potential for a decent life. The Report of the African Commission on Human
and
Peoples'
Rights
Working
Group
on
Indigenous
Populations/Communities, as produced by the Complainants, states that
indigenous peoples in the Democratic Republic of Con go have been driven off
the land they have occupied for centuries and are currently living in conditions
under which they are deprived of economic, social and cultural rights.36
140.
It follows that Article 4 has been violated by the Respondent State.
On the alleged violation of Article 8
141. Article 8 stipulates: "Freedom of conscience, profession nnd free practice of religion
shall be guaranteed. No one may, subject to law and order, be submitted to measures
restricting the exercise of these freedoms". This provision protects the right to
freedom of religion. It is an obligation for States to respect and ensure freedom
of conscience, profession and free practice of religion.
142. In the case African Commission on Human and Peoples' Rights v . Republic of Kenya,
the African Court on Human and Peoples' Rights (the African Court) observed
that in the context of traditional societies, where formal religious institutions
often do not exist, the practice and profession of religion are usually
inextricably linked with land and the environment. 37 In this respect, it placed
particular emphasis on indigenous societies. In the view of the African Court,
in these societies, the freedom to worship and engage in religious ceremonies
depends on access to land and the natural environment.38 It concluded that, any
impediment or interference with accessing land constitutes a violation of the
right to engage in religious rituals with considerable repercussions on the
enjoyment of their freedom of worship.
143. The Commission has, in its jurisprudence, examined this existing relationship
between land and religion. It noted that religion is often linked to land, cultural
36
Report of the African Commission's Working Group on Indigenous Populations/ Communities, Research and
Information visit to the Democratic Republic of Congo, adopted at the 49th Ordinary Session held from 28 April12 May 2011, p. 73
.
37
Application No. 006/2012- African Commission on Human and Peoples' Rights v. Kenya, para ,· ..,t,:,\'.~:~:~
38 Ibidem
1/ •.; , •• -__;• • , '
I•
28
~•"
t)
f· : ;_l. ( ', ) ) :,,
\ : .. .Y./
/
,
:
·:. :,,..
beliefs and practices, and that the freedom of worship and engage in such acts
is central to freedom of religion.39 Furthermore, the African Commission
considered in the Communication Free Legnl Assistance Group v . Znire, that the
right to freedom of conscience allows individuals or groups to worship or
assemble in relation to a religion or belief, and to establish and maintain places
in relation thereto, as well as to perform ceremonies in accordance with the
precepts of the religion or belief.
144. States should ensure that this right is respected. In accordance w ith Article 8,
the Commission considers that the restriction that could be placed on the
exercise of this right to freedom of conscience, profession and free practice of
religion is maintaining law and order. However, as the African Court indicated
in the Ogiek case, this restriction must be" necessary and reasonable" .40
145. Based on the submissions of the Complainants and witnesses, the Commission
notes that the land of the Kahuzi - Biega forest is for the Batwa a sanctuary for
their religious and spiritual life and that their religious beliefs and practices are
inextricably linked to their traditional way of life in the forest. 41
146. It further notes from the same testimonies, as well as from the Report of the
Commission's Working Group on Indigenous Populations/Communities as
presented by the Complainants, that the local authorities refuse to allow the
Batwa to return to the Kahuzi-Biega forest, alleging that they pose a threat to
the ecosystems. 42 On the contrary, this Report by the Commission's Working
Group indicates that this is only a pretext because, traditionally, the Batwa have
never hunted gorillas and do not destroy the forest by cutting down h·ees. 43
147. Consequently, and in the present case, the Commission considers that the
eviction of the Batwa people from their ancestral lands, with a ban on their
return, constitutes an infringement on their freedom of worship, and a violation
of Article 8 of the African Charter.
On the alleged violation of Article 14
39
Communication 276/03 - op.cit., para 16
Application No. 006/2012 African Commission on Human and Peoples' Rights v. Kenya, para 167.
41
See para 395 of the Complainants' submissions on the merits
42 See the Report of the African Commission on Human and Peoples' Rights Working Group on Indigenous
Populations/Com
• ~opted by the African Commission on Human and Peoples' Rights at its 28th
:;,::' (9{.ll~-1-•, ~,.. • ......
Ordinary Sessi .- ,,.P\ u,J,•r,,_; ' , ·, \
40
43
lb "d
, em
• _•.,- .,1::
,".
"'•
(:: , {i~i,t')\
•
'\
•
'
'' -~'\_.,
".
•
·1.;1
\ • .. •' 'f
I'
"
••,
. ,) > .'
•,;-, ..
. ,._ ,,
. ..,,..
....•., ..,
I
I
29
148. Article 14 stipulates that" the right to properhJ shall be guaranteed. It may only be
encroached upon in the interest of public need or in the general interest of the
communihJ and in accordance with the provisions of appropriate laws »
11
•
149. In the case between the Malawi African Association and Others v. Mauritania, the
land was considered "property" .44 The African Commission, in the Ogoni case,
also found that the right to properhf includes not only the right to have access
to one's property and to prevent invasion and encroachment of that property,
but also the right to possession, use and control of that proper ty in total peace
of mind, as desired by its owners. Indeed, the right to property, as understood
by civil law, includes usus, abusus andfructus.
11
150. The African Commission also notes that, according to the European Court of
Human Rights, "properhJ rights" can also include economic resources and rights
to the community land of applicants. In this regard, in the case of Dogan and
Others v. Turkey, although the applicants were unable to produ ce a title deed to
the land taken from them by the Turkish authorities, the European Court of
Human Rights nevertheless observed that: " the notion "possessions" in Article 1
has an autonomous meaning which is certainly not limited to ownership of physical
goods: certain other rights and interests constituting assets can also be regarded as
"properh; rights", and thus as "possessions for the purposes of this provision.
11
11
151. The African Commission notes that Articles 26 and 27 of the UN Declaration on
Indigenous Peoples use the terms "traditionally occupied or used". This means that
it is recognised that indigenous people are entitled to ownership of their
ancestral land under international law, even in the absence of a title deed. This
position was taken in the Mayagna (Sumo) Awas Tingni CommunihJ v. Nicaragua
judgment. In this case of 31 August 2001, the Inter-American Court decided that
logging concessions granted to private investors by the N icaraguan authorities,
in an area claimed by a tribal community, constituted a violation of the property
rights of the applicants, w ho were members of that community, guaranteed by
the Convention (Art. 21).45
152. Despite the absence of any explicit reference to a community's right to property,
the Court, in a progressive interpretation, included the customary right of •
44
Communication 54/91-61/91-98/93-164/97_196/97-210/98 Malawi Africa Association, Amnesty
International, Ms Sarr Diop, Union interafricaine des droits de /'Homme et RADDHO, Collectif des veuves et
ayants-Droit, Association mauritanienne des droits de /'Homme v. Mauritania (2000) ACHPR para 128.
.
45
Inter-American Court of Human Rights, Case of Mayagna (Sumo) Awas Tingni Communiy v. Nicar l/~ ,;;.,_~l~•,~
,•?: fr~,j •.j
rChE :.r.. ,
,, .• ; ,.J
Judgement of August 31, 2001; para 155
.
.
30
•
•
,
<l •
(
••.
.(' I
•
·,,·
. ,,. ....
.·
I
indigenous communities to use their ancestral lands for agriculture and hunting
in order to block an environmentally harmful project.
153. For its part, the Inter-American Commission interpreted the right to life to
protect communities threatened by environmental degradation. In the case of
the Yanomani Indigenous People of Brazil, the Commission on 5 March 1985
considered the connection between the destruction of the environment and
natural resources and the right to life, in response to a Communication
submitted by Yanomani indigenous people of Brazil.
154. In this regard, the Commission's Working Group on [ndigenous
Populations/Communities recognised that some African minorities are facing
dispossession of their lands and that special measures are needed to ensure
their survival, in accordance with their traditions and customs.46
155.
In view of the foregoing, the African Commission draws the following
conclusions:
a. the traditional possession of their land by indigenous people has effects
equivalent to those of a title granted by the State;
b. traditional possession implies that indigenous people have the right to
demand official recognition and registration of title deed;
c. indigenous community members w ho have involuntarily left their
ancestral land, or who have lost possession of it, retain the right to
possession and ownership, even if they do not have legal title, unless the
land has been legally transferred to bona fide third parties; and
d. Members of an indigenous community who have involuntarily lost
possession of their land, where such land has been lawfully transferred
to bona fide third parties, are entitled to restitution of the land in question
or to obtain other land of equal size and quality.
156. However, total or partial expropriation is not in itself a violation of Article 14
of the Charter as long as it is done in accordance with the law. Indeed, Article
14 of the African Charter provides for a double condition should such
expropriation be unavoidable: it must be done "in the interest of public need or in
the general interest of the community" and "in accordance with the provisions of
appropriate laws".
46
See the Report of the African Commission on Human and Peoples' Rights Working Grou p on Indigenous
th
Populations/Communities, ad<?J.~ ~~ican Commission on Human and Peoples' Rights at its 28
Ordinary Session, p. 26 and 2'7',f'\.~¥,.._,m;.• .,. '\
,'\?
;/ .';
!;,.
•
e:.;
:_,\
,/;"..:'}\\
~;\\
J,)··''.
'~-, ~
11~~1.~
'-!·,m
\· . ,,:::,
•
.
/ /
..;::.:,. ! ... : '
./1
31
157.
The "public utilihJ test" is more broadly understood in the case of encroachment
on indigenous land than in the case of individual ownership. Indeed, this
condition is more stringent w hen applied to ancestral land rights of indigenous
peoples. In 2005, this point was highlighted by the Special Rapporteur of the
UN Sub-Commission on the Promotion and Protection of Human Rights in the
following terms:
"Limitations, ifany, on the right ofindigenous peoples to their natural resources
must flow only from the most urgent and compelling interest of the State. Few,
if any, limitations on indigenous resource rights are appropriate, because the
indigenous ownership of the resources is associated with the most important and
fundamental hum.an rights, including the rights to life, food, self-determination,
shelter and the right to exist as a people. "47
158. In its own jurisprudence, the Commission notes that " .. . the reason for the
limitations must be strictly proportional and absolutely necessan; in relation to the
benefits involved".
159. It also recalls the case of Handyside v UK, in which the European Commission of
Human Rights stated that any conditions or restrictions imposed on a right must
be "proportionate to the legitimate aim pursued".48 The African Commission
therefore considers that any limitation of rights must be proportionate to the
legitimate need and must be the least restrictive measure possible.
160. In this case, it is clear that the Batwa, an indigenous people, were dispossessed,
without compensation or resettlement, of their ancestral land, whereas it was
not proven that their presence or continued presence on the site was harmful,
given their way of life, which consisted of food gathering and hunting.
161. It follows that Article 14 was violated.
On the alleged violation of Article 16
162.
Article 16 of the African Charter states that "1 . Even; individual shall have the
right to enjoy the best attainable state of physical and mental health. 2. State Parties to
the present Charter shall take the necessan; measures to protect the health of their people
and to ensure that they receive medical attention when they are sick". This provision
of the Charter advocates the right to health.
•/:•"c,"c'M·,.' r ", •.
/2~
47 See Communication 276/03 - op.cit., para 212
48
~, • t-"'
'->Y.\J ..
Case of Handyside v. United Kingdom, ECHR, para.~7;
I
'·,
J.
("i ~ '-'.r.f
·-✓:.,\
•. H- \· .>1'
/ , :.
~•
,,,.
'•
,.,.,,~.,.
<f,
:.....
•
\\
•
:0.'i
;I
,"' .. 1:
;;•':•,I
. ·"
. ... ..·. ·:.•.. ., .
:
,"
'
163. The right to the best attainable state of health includes the right to health
facilities, goods an d services which must be guaranteed to all without
discrimination of any kind.49 The right to the best attainable state of health
refers to the availability, accessibility, acceptability and quality of health care,
services and conditions and it is an obliga tion for the State to respect, fulfil and
protect this right. As explained by the Commission in the Pretoria Declaration
on Economic, Social and Cultural Rights in Africa, heal th care, services and
conditions entail, among other things, access to health services for all, access to
the minimum essential food to prevent malnuh·ition, access to housing, safe
drinking water, reproductive health and protection against major infectiou s
diseases.so
164. The Commission also notes that there is a close link between th e right to health
and the living environment of indigenous peoples.
Indeed, indigenou s
peoples find in their living environment the resources necessary for their
growth and development in terms of physical and mental health.51 In its
Declaration on the Rights of Indigenous Peoples adopted on 13 September 2007,
the United Nations General Assembly revisited this p oint. It stressed that
indigenous p eoples have the right to their traditional medicines and the right
to maintain their health practices, including the conservation of their vital
medicinal plants, animals and minerals. 52 Thus, removing them from this
environment, w ithout providing them with a similar, if not identical,
environment, undeniably constitutes a violation of their right to health.
165. In this case, the Commission concurs with the Complainants that the KahuziBiega forest is the only source of medicinal plants necessary for the traditional
health practices of the Batwa and that these plants were part of the resources
available to them to treat various illnesses from which they suffer. This is based
on the various testimonies available to the Commission. For example, M.M.,
one of the Batwa expelled from the Kahuzi-Biega park, said: "I watch with dread
as our grandchildren often die ofdiseases that could have been cured in the PN KB using
49
Communication 241/01- op. cit., para 80
50 See Pretoria Declarat ion on Economic, Social and Cultural Rights in Africa, 17 September 2004, para 7
51
In this regard, for th e BAKA populations of East and South Cameroon, " the fo rest is (our) life" (Dieudonne
Tombombo), and "for the Baka, it is a supermarket, a hospital and a bank" (Rene Ndameyang). Interview by
Josiane Kouagheu, for Le M onde Afrique, for the article "Au Cameroun, la cartographie participative, un
"puissant outil" de reconnaissance des Pygmees" [In Cameroon, participatory mapping is a " powerful t ool" for
recognising Pygmies], published on 24 ~ st 2021
52
Article 24 of the United Nat. io~ ~-~~A..~n the Rights of Indigenous Peoples, adopted by the General
\
Assembly on 13 September 200f,;.·<~t...t • ~
f ., /,;; ·, \
,.··
•
,_\
\,t-r.,~,
, ..
'"'I
\ .• •,i,
--:.....
'
ll
.j, 33
~ • •'.f f ) ~ !1 i
·/
\·~:-•.,. ·.:> ·.::/
.
our medicinal plants as well as pregnant women, most of whom are operated on in
hospitals and unable to find the money to pay their hospital bills" _53
166.
The Commission also notes that the removal of the Batwa from the
Kahuzi-Biega Park has led them to live under difficult conditions with no
access to health care. For example, K. M. states: "My family and I are finding it
difficult to live whereas our land and resources in the PNKB provided us with
even; thing... [. .. ] I do not have health insurance and have to pay for access to health
cnre; we the landless poor will die without receiving appropriate care and deprived of
access to medicinal plants usually found in the park .... [. ..] Our sick people die at home
because the hospital will not treat us without money and the principle of paying n
deposit before going to the hospital for treatment. At this ven; moment, we have a
seriously ill child here and his parents have been asked to pay for treatment. 1154 As a
result, the lack of access to public services provided by the State aggravates the
physical health of the Ba twa.
167.
The allegations indicate that the Batwa were evicted and not resettled in
a similar setting, and that they were n ot provided w ith any facilities. It follows
that their right to the highest attainable standard of physical and men tal health,
as understood by them, has been violated.
On the alleged violation of Article 17
168.
Article 17 stipulates:
"1. Even;one has the right to education.
2. Even; individual may freely take part in the cultural life of his communihJ3. The promotion and protection of morals and traditional values recognized by the
communi hJ shall be the duh; of the State".
On the alleged violation of Article 17 (1)
169. Under Article 17 (1) "Even;one has the right to education" . The Complainants
allege that following the eviction of the Batwa from the Kahuzi-Biega forest, the
Respondent State violated the right to education in all its aspects.
170. In its General Comment No. 13 on the right to education, the UN Human Rights
Committee stated that this right is fundamental in itself and is an indispensabl~.=..:---....
; / \1 \il'',;.,•
0
/
• •
/:/··(t•~'
:.::·-.....
'f', -.;J i:1' \.i
I,·, .. •
, '.,
53
See Affidavit of M.M., Annex 103
54
See Aff idavit of K. M., An nex 99
••
~>\~c'o.r,~?- ., .
\~~
..:~ t
\
,_\,\
:\,
V
\ \;,Tf}
34
mean s of realizing other inherent human rights.55 It includes the right to all
levels of education and training, on the basis of intellectual capacity. Modern
education is one of the ways in which people can lift themselves out of poverty
and identify and defend their rights.
171. The right to education affects the growth, development and welfare of human
beings, particularly children and youth. 56 The Commission recognises that, as
a fundamental right, education is the primary vehicle by which economically
and socially marginalised children and adults can lift themselves out of poverty
and obtain the means to participate fully in their comrnunity.57 Thus, it plays a
vital role in the protection of human rights in that its aim is to develop
intellectual capacity and thereby enable individuals to claim their rights at all
levels.
172. Moreover, education should be directed to the full d evelopmen t of the human
personality and to the strengthening of respect for human righ ts and
fundamental freedoms. As an empowerment right, education is the primary
vehicle by which economically and socially marginalized adults and children
can lift themselves out of poverty and obtain the means to participate fully in
their comrnunities.ss
173. Based on the foregoing, the Commission notes that education is one of the ways
in which people can lift themselves out of poverty and identify and defend their
rights. In particular, it enables marginalized populations to participate fully in
community life. Furthermore, the right to education also includes the right to
traditional and ancestral knowledge for indigenous peoples.
174. In this case, the eviction of the Batwa from their ancestral forest deprived them
of this form of teaching, as the elders were no longer able to pass on their
knowledge, particularly medicinal knowledge, to the younger generations in
situ, as stated in the various testimonies made by members of this community
who were victims of this eviction. These testimonies all point to the fact that
there is knowledge related to the identity of the Batwa from which they
55 General Comment No. 13 of the Committee on Economic, Social and Cultural Rights on the
imple mentation of Article 13 of the International Covenant on Economic, Social and Cultural Rights;
adopted at the 21 st Session, 1999
56 ACHPR, Principles and Guidelines on the implementation of economic, socia l and cultural rights in
the African Charter on Human and Peoples' Rights, para 69
57 ACHPR, Principles and Guidelines on the implementation of economic, social and cultural rights in the African
Cha rter on Human and Peoples' Rights, para 69
General Comment No. 13 of the Committee on Economic, Social and Cultural Rights on the
implementation of Article 13 of ~ ~~ ~ ona l Covenant on Economic, Social and Cu ltura l Rights;
adopted at the 21st Session, 1~9) ·~,.,.tr.r,·; ' , ••.
58
:
·
"'
"
\
\
I
.'. '
. :..
I
\
\
' '<1-
\
#
~
'-'i
t
•
-t,J
,,1~
_;!
:i
.. .~ ....:,: . .......·--/ .'
••
~
-
~
.
35
benefited while in the Kahuzi-Biega forest but to which they no longer have
access. For example, O.M. one of the Batwa expelled states: "The Forest was our
space for education and initiation of young people into adulthood" .59 N. B. I., another
victim of the expulsion reiterates that "this lack of access to their land and natural
resources makes them more vulnerable because they now face difficulties in accessing
basic social services such as education" .60 In this regard, the Commission concludes
that failure to provide access to such knowledge constitutes a violation of the
right to education protected under the provisions of Article 17(1).
On the alleged violation of Article 17(2) and 17(3)
175.
Under Article 17(2) and (3) "2. Even; individual may freely take part in the
cultuml life of his communihJ- 3. The promotion and protection of mornls and
traditional values recognized by the communihJ shall be the duti; of the State". Based
on the considerations and arguments presented by the Complainants,
understanding of the concept of 'culture' within the meaning of Article 17(2)
and 17(3) of the Charter and its conception in the context of indigenous peoples
is of particular importance in the present Communication.
176. Culture was defined as follows by the UNESCO World Conference on Cultural
Policies in the Mexico City Declaration: "in its widest sense, culture may now be
said to be the whole complex ofdistinctive spiritual, material, intellectual and emotional
features that characterize a societi; or social group. It includes not only the arts and
letters, but also modes of life, the fundamental rights of the human being, value systems,
traditions and beliefs".61 Later, in the Fribourg Declaration, a group of
international experts, the 'Fribourg Group', decided that: "The term "culture"
covers those values, beliefs, convictions, languages, knowledge and the arts, traditions,
institutions and ways of life through which a person or a group expresses their
humanihJ and the meanings that they give to their existence and to their
development". 62
177.
According to the Charter for African Cultural Renaissance, adopted by the 6th
Ordinary Session of the Assembly held on 24 January 2006 in Khartoum,
"culture should be regarded as the set of distinctive linguistic, spiritual, material,
59
Affidavit of 0. M., Annex 101
Affidavit of N.B.I, Annex 1
61
Mexico City Declaration on Cultural Policies. World Conference on Cultural Policies, Mexico City, 26 July - 6
August 1982
62
Article 2 of the Fribourg Declaration on Cultural Rights, adopted in Fribourg on 7 May 2007
Founding text, dat ed 1993 (cf: http://www.droitshumains.org/ONU_GE/Comit e_ Drtcult/decla-fribourg.htm
The Fribourg Declaration on Cu
=R~ is the result of 20 years of work by an international group of experts,
r,; u:\ \I.it, ·, ►,
known as t he " Fribourg Gr pr,?~. ~'""·. ; ··,. '•..
60
•
I ,;
' •
··ce"":,.,..-:_:
•
,, •..J . \
!~ '- /,'I f
. ''
~
•\ .
\
\
' i'
--,1
-. . , •.] ,
<f.·:
..
'
,µ " I,
. • •t
'
C
lj
. :·;"!
... I
"~:,.- .. :.:,. .~:.•.. ;.,'
~
. ·._,,.,,,.
36
intellectual and emotional features of the sociehJ or a social group, and that it
encompasses, in addition to art and literature, lifesti;les, ways of living together, value
systems, traditions and beliefs".63
178.
In its Mexico City Declaration on Cultural Identity, UNESCO stated that: "Every
culture represents a unique and irreplaceable body of values since each people's
traditions and forms of expression are its most effective means of demonstrating its
presence in the world." 64
179.
The African States, in the framework of the 1976 Cultural Charter for Africa
adopted by the Heads of State and Government of the Organisation of African
Unity at its Thirteenth Session held in Port Louis, Mauritius, from 2 to 5 July
1976, were already aware " that any people has the inalienable right to organise its
cultural life in full harmony with its political, economic, social, philosophical and
spiritual ideas" and " that any human society is necessarily governed by rules and
principles based on traditions, languages, ways of life and thought in other words on a
set of cultural values which reflect its distinctive character and personality" .65
180. In the Endorois case, the Commission held that culture refers to that complex
whole which includes a spiritual and physical association with one's ancestral
land, knowledge, belief, art, law, morals, customs, and any other capabilities
and habits acquired by humankind as a member of society - the sum total of
the material and spiritual activities and products of a given social group tha t
distinguish it from other similar groups and that cultural identity encompasses
a group's religion, language, and other defining characteristics. 66
181. Referring to all these different definitions and considerations, the Commission
notes that due to its complexity, the notion of culture should be understood in
a broader sense. Indeed, as summarized by the African Court in the case of the
African Commission on Human and Peoples' Rights v. Republic of Kenya, culture
should be construed in its widest sense "encompassing the total way of life of a
particular group, including the group's languages, symbols such as dressing codes and
the manner the group constructs shelters; engages in certain economic activities,
63 Charter for African Cultural Renaissance, adopted by the 6 th Ordinary Session of the Assembly held on 24
,
January 2006 in Khartoum, Sudan
64 M exico City Declaration on Cultural Policies. World Conference on Cultural Policies, M exico City, 26 July - 6
August 1982
See the Preamble of the 1976 Cultural Charter for Africa adopted by the Heads of State
and Government of the Organisation of African Unity at its Thirteenth Session held in Port
Louis, Mauritius, from 2 to 5 July 1976
__
65
-----:--...'
/..:.,-ll~"t!.I •~
66 Communication 276/03 -
/ ~,,,-,., IJ
- .. ,_
op. cit, para f ' l :::-"~l(,"'P•r,.;, •). ,
I '!
I •.•
~ ·,
-'~
ff_::I r.,37
_ \\\
••
\
.\.•-. \.':. \ _·..:t v!.!f~,:I.
'
'\
'
-
...
' .. ... ~ .:.... -,,,'°
•
produces items for survival; rituals such. as the group s particular way of dealing with
problems and practicing spiritual ceremonies; identification and veneration of its own
heroes or models and slurred values ofits members which. reflect its distinctive charncter
and personality". 67
I
182. On this basis, the Commission is of the view that protecting human rights also
requires respec t for, and protection of, their religious and cultural heritage
essential to their group identity, including buildings and sites su ch as libraries,
churches, mosques, temples, synagogues and similar places.68
183. In the context of ind igenous peoples, the preservation of their culture is of
particular importance. Indeed, as the African Court notes, these populations
have often been affected by activities of other groups and deliberate p olicies of
exclusion, exploitation, forced assimilation, discrimination and other forms of
persecution.69 On this point, the African Commission agrees with the
Complain ants that in its interpretation of the African Charter, it has recognised
the duty of the State to tolerate diversity and to introduce measures that
protect identity groups different from those of the majority/ dominant group.7°
184. In this respect, it considers that Article 17(2) requires governments to take
measures" aimed at the conservation, development and diffusion of culture," such as
promoting "cultural identihJ as a factor of mutual appreciation among individuals,
groups, nations and regions; promoting awareness and enjoymen t of cultural heritage
of national ethnic groups and minorities and ofindigenous sectors of the population".71
185. In this case, the Commission concurs with the Complainants that the eviction
of the Batwa from their ancestral land deprives them of their cultural and
religious references as understood above in its various senses, and
consequently, no longer allows them to take part freely in the cultural life of
the community of the Democratic Republic of Congo. The various testimonies
gathered prove that these Batwa are no longer able to engage in their religious
and cultural practices that were associated with the Kahuzi-Biega forest.
186. This is the case for M.M, one of the Batwa expelled from Kahuzi-Biega
National Park, who testifies as follows: "The causes for the disappearance of our
culture are mainly related to lack of access to our traditional land and to the various
67
Application No. 006/2012, African Commission on Human and Peoples' Rights v. Republic of Kenya, Para 179
Communicat ion 276/03 - op. cit, para 241.
69
Application No. 006/2012- African Commission
.
and Peoples' Rights v. Kenya, para 180.
7 C
• • 276/03 - op. cit.,
• para 246 , .. ·;'·_,
/ . (,''llt
ommumcatron
...,,,. • •
.,
71
Communication 276/03 - op. cit., para 2 f;_;-··r<,~-·~-< • \
68
°
,: :
' •
',
,'f'
\\
' 38
~I
I:
:•. ,'
/
I
• •..;_ '
L, ' '
~ ---· .. ,.~.
-
,
L
displacements thnt our communihJ has suffered. How can we tench our children nbout
our culture when we are outside of our own home and how can one be initiated into a
culture when one does not know the ins nnd outs of tliat culture? [...] All our rituals
are associated with the forest where there are rivers, sacred sites and species such ns
the Muhumbnhumbn which reflect the culture nnd the right to reside in the communihJ
of a dignitary". 72 M. M., another member of the Batwa community expelled
from the Kahuzi-Biega National Park wonders: "Where cnn we practice our
rituals when we nre outside our ancestral lands? Our children will no longer be able
to know our cultures and practice our rituals so ns to understand our cultures nnd
values". 73
187. Thus, on the basis of all these observations, the Commission considers that the
DRC did not take into consideration the right to culture as envisaged in the
context of indigenous peoples. It thus violated Article 17 (2) and (3) of the
Charter.
On the alleged violation of Article 21 (1 and 2)
188. The Complainants allege violation of Article 21(1) and (2) which provides that:
"1. All peoples shall freely dispose of their wealth and natural resources. This right
shall be exercised in the exclusive interest of the people. In no case shall a people be
deprived of it. 2. In case of spoliation, the dispossessed people shall have the right to
the lawful recovenJ of its properhJ as well as to an adequate compensation." This
provision upholds the right of peoples to freely dispose of their wealth and
natural resources. The drafters of the African Charter obviously wanted to
remind African governments of the continent's painful legacy and restore
cooperative economic development to its traditional place at the heart of
African Society.74
189. Indeed, the African Court in its jurisprudence considers that the Charter
primarily targets the peoples comprising the populations of the countries
sh·uggling to attain independence and national sovereignty.75 And the
Commission notes, in Social and Economic Rights Action Centre (SERAC) and
Centre for Economic and Social Rights (CESR) v. Nigeria, that the origin of Article
21 may be traced to colonialism, during w hich colonial powers exploited the
72
Affidavit of M. M., Annex 102
73
Affidavit of M.M., Annex 103
74
Communication 155/96- Social al!d Eco110111ic Rights Action Ceutre (SERAC)and Centre for Eco110111ic and
Social Rights (CESR) v. Nigeria (2001) ACHPR para 56
<o:1~w">-7s Application No. 006/ 2012- African Co111111ission Oil Human and Peoples' Rights v. Kenya, para 1 ....·;:.'• ~tc.><E'or,,; ••. '·.
39
I / .,•,' . ~
..- .
:.
• ,,
.1\
\
/{◄I,'\\
i. ~- ~ ;\
/, ::
\ ,~ <f.,
t ...
:')'
,~
~: ..,IJ . f. I
/! ;
.. ..,., .
··: -.:. :, •::>·, /.
-
~
~, , .·
natural resources of African countries to the detriment of African peoples.76
The aftermath left Africa's people and natural resources still vulnerable.
190. Notwithstanding this interpretation originating from a specific context, the
Commission has consistently held that this provision still applies to groups
belonging to a State77 . Thus, it has indicated that the term "People" in this
Article 21 can mean either any people of a given State or a 11 people 11 w ithin that
State78 . It is therefore understandable that both categories of 'peoples' are
entitled to the rights guaranteed under the provisions of Article 21 .
191. This view is also shared by the African Court. Indeed, regarding the question
as to whether the enjoyment of the rights recognised to the peoples
constituting the population of a given State can be extended to sub-state ethnic
groups and communities which are part of that population, this Court has
responded in the affirmative79. It does, however, set a condition that such
groups must not challenge the sovereignty or territorial integrity of the State
without the State's consent in the exercise of their rights.
192. Thus, governments have a duty to protect their citizens, not only by adopting
appropriate legislation and effectively enforcing it, but also by protecting them
from harmful activities that may be perpetrated by private actors (see Union des
jeunes avocats v. Chad 12)80 . As emphasised by the African Court, this duty
requires a positive obligation on the part of the State to act whenever the rights
of the people under its protection are threatened; and this must be done in
accordance with human rights instruments.
193. More specifically, the situation described and objected to in this case calls into
question the criteria, conditions and objectives for the establishment of
national parks. Indeed, the issue that arises is whether the establishment of a
national park must necessarily be to the detriment of the primary occupying
population. In other words, if the purpose of creating a park is to protect
biodiversity for the good of all, should the way of life, cultur-e and environment
of the indigenous populations occupying it not be taken into account?
Communication 155/96- Social and Economic Rights Action Centre (SERAC)and Centre for Economic and
Social Rights (CESR) v. Nigeria (2001) ACHPR para 56
77
/dem, parns 56-57
78
Communication 328/06 - Front de liberation de l'Etat du Cabinda v. Republic of Angola (2013) para 130
79
Applicatio n No. 006/2012, African Comiµ-issionon Huma n and Peoples' Rights v. Republic of
·,-. c:••~•·· ...
Kenya, para 198-199
:•<~~r-~•,r. ;; ··,
8
°Communication 155/96 - op. cit. para{ .:( f.~·•.•-::
·
. }
76
: ..
I
\
•
·,1
1~J:,,)
\
•4fl
~
.... . . .
{,\
(
O
'" I'I
• \_;~~-/' jl
--~
·
194. The UNESCO Convention on the Protection of the World Cultural and Natural
Heritage, in its Part 2, entitled "National and International Protection of the
Cultural and Natural Heritage'1, states in its Article 5: "In order to ensure that the
cultural and natural heritage situated on their territory is protected and preserved as
effectively as possible and that it is enhanced as actively as possible under conditions
appropriate to each country, the States Parties to this Convention shall endeavour as
far as possible: (a) to adopt a general policy designed to assign afunction to the cultural
and natural heritage in the life of the community, and to incorporate the protection of
that heritage into general planning programmes"81 .
195. In view of the foregoing, the establishment of a natural site as a national park
should not be done to the detriment of the original occupants, especially when
it is an indigenous people, unless the State can prove that the actions of these
populations are harmful to the said protection.
196. In this case, the Respondent State has not produced any evidence to show that
the choice of the Kahuzi-Biega Park was not to the detriment of the Batwa
people. On the contrary, it is clear from the testimonies and documents at the
Commission's disposal that, in the aftermath of the establishment of this Park,
the Batwa were denied access to their ancestral lands, which contain a number
of natural resources. The Commission also notes that the DRC has exploited
these natural resources or allowed other parties to do so without consulting
them or paying them compensa tion for the benefits derived from these
resources, and that it has caused or failed to prevent the environmental
degradation of the natural resources of their fores t.
197. In this regard, the Commission recalls that it has already recognised a number
of rights to ancesh·al land for the Batwa people, including the right of use (usus)
and the right to enjoy the fruits (fructus). In their nature, both rights imply the
right to access and occupy this forest in order to benefit from it. It is clear that
in this case, both rights have been violated.
198. From all the above, the Commission concludes that Article 21 (1 and 2) of the
Charter has been violated.
On the alleged violation of Article 22
199. Article 22 states: 111. All peoples shall have the right to their economic, social and
cultural development, with due regard to their freedom and identihJ, and in the equal
enjoyment of the common heritage of mankind 2. States sh.all have the duh;,
individually or collectively, to ensure the exercise of the right to development. In light
of the complainants' allegations, the Commission proposes to analyse the
scope of the right to development as it applies to indigenous p eoples.
200. The UN Declaration on the Right to Development adopted by the General
Assembly on 4 December 1986 defines the right to development as an
inalienable right by virtue of which every human person and all peoples are
entitled to participate in, contribute to, and enjoy economic, social, cultural and
political development in which all human rights and fundamental freedoms
can be fully realised82 . Looking at it from this angle, the right to development
is a right that is vested in individuals and peoples. Indeed, as the Declaration
emphasises, this right also implies the realisation of the right of peoples to selfdetermination, which entails the exercise of their inalienable right to full
sovereignty over all their natural wealth and resources 83 .
201. The right to development of indigenous peoples has, moreover, been
recognised in the United Nations Declaration on the Rights of Indigenous
Peoples. Under Article 23 of the Declaration, indigenous peoples have 11 the
right to define and establish priorities and strategies for the exercise of their
right to development 1184 • In order to ensure the realisation of this right, States
have an obligation to involve indigenous peoples in the plan and d efinition of
health, housing and other economic and social programmes affecting them,
and, as far as possible, in their administration through their own institutionsss.
202. Thus, as Article 8 of the same Declaration emphasises, the components of this
right to development are, among others, "the right to food, the right to health,
the right to education, housing, employment, [...] equitable distribution of
income, the elimination of all social injustices through economic and social
reforms". Ultimately, the right to development is simply about the
82
Arti cle 1 of the United Nations Declaration on the Right to Development in its Resolut ion 41/ 128 of 4
December 1986
83
Article 2 of the United Nations Declaration on the Right to Development in its Resolution 41/128 of 4
December 1986
84
Article 23 of the United Nations Declaration on the Rights of Indigenous Peoples, Resolution 61/295 adopted
by th e General Assembly on 13 September 2007
85
Article 23 of the United Nations Declaration on the Rig _. :t~i~nous Peoples, Resolution 61/295
,.. (_J'll~N
...._,_
adopted by the General Assembly on 13 September 2 .,::<,cP~TN• '. •. ·.,
.J" .
/.."/:,~
' ·42
'"">
..,
...... ,__
!f' •.,,_\i
~•'-
. •.
\
1\
I.\ :'~. \_- ~~: /,, j)j,,
' ~~~~ •.=.·- ,··--' •
:~, :..: .
\
•-~. \
·y·-
participation of all people in the design and implementation of development
programmes.
203. States are the primary actors to ensure implementation in the sense that they
represent the p eople and have the means and legitimacy to enact laws or take
the necessary measures to achieve this goal. Thus, for example, in African
Commission on Human and Peoples' Rights v. Republic of Kenya, the African Court
held that the failure to involve the Ogiek in the development and definition of
health, housing and other social programmes that affect them constituted a
violation of Article 22 of the Charter86 . Similarly, in Endorois, the Commission
made it clear that for any development or project that would have a major
impact on the territory of the Endorois, the State has a responsibility not only
to consult the community, but also to obtain their free, prior and informed
consent, in accordance with their customs and traditions87.
204. In this case, analysis of the various documents and testimonies available to the
Commission shows that the Batwa were not consulted becau se they were
expelled from the Kahuzi-Biega Forest. This has had a serious impact on their
socio-economic and cultural d evelopment. The Commission notes that the
DRC, w hich has not responded to the arguments of the Complainants, has not
provided evidence that it was satisfied that the Batwa, as an indigenous
people, were involved in this development programme that affects them
directly or indirectly.
205. In these circumstances, the Commission concludes that the DRC has violated
Article 22 of the Charter.
On the alleged violation of Article 24.
206. Article 24 of the Charter states: "All peoples sh.nll have the right to a general
satisfactory environment, conducive to their development". According to Fatima ta
Dia, former Director of the Ins ti tut de la Francophonie pour le Developpement
Durable, '' the environment can be defined as all the natural and cultural conditions
likely to affect living organisms and human activities"88 . In this sense, one of the
main obligations that States are called upon to fulfil is to ensure that natural
86
Application No 006/ 2012 African Commission on Human and Peoples' Rights v. Republic of Kenya, para 210
Communication 276/03 - op. cit. para 291
88
Fatimata DIA was Director of the lnstitut de la Francophonie pour le developpement durable, and t his
definition comes out of her introductory words in issue 98 of the Revue Liaison Energie- FrarJF?J1l1,rinJt.~ f the
lnstitut de la Francophonie pour le Developpement, which came ou t in t he 3rd quarter of ~-0;4.'· ~<~'t'••..;, • ..
__ __,.,(I
, - --..
.
87
43
,: ..
I'//,,.
'-
\
' :
( J.::/ \\
.'\
¾1"
I., · , , !i~ ~J,
\ ·; '
/
<l
.. .--
. . • _';
.,,./,
//
:,:- ,f
····:, ·:>-/
and cultural conditions which are likely to have a negative impact on human
life do not change or are at least improved .
207. The importance of the right to a satisfactory and comprehensive environment
for development is recognised in many international instruments. For
example, according to Rebecca GRYNSPAN, then Associate Administrator of
the UNDP (at the Development with Culture and Identity Forum): "States must
recognise cultural differences in their laws and institutions and in the creation of
policies to ensure that the interests of certain groups are not ignored or supplanted.
And they must do so in ways that do not conflict with other human development goals
and strategies, such as human rights, building a competent State, and ensuring equal
opportunities for citizens".
208. Furthermore, Article 10 of the United Nations Declaration on the Rights of
Indigenous Peoples states: "Indigenous peoples shall not be forcibly removed from
their lands or territories. No relocation shall take place without the free, prior nnd
informed consent of the indigenous peoples concerned and agreement on fair and
equitable compensation and, where possible, the option of return 11 • The sam e applies
to ILO Convention 169. Its Article 2 (1) (2) (b) states: 11 1. Governments, with. the
participation of the peoples concerned, sh.all develop coordinated and systematic action
to protect the rights of these peoples and to ensure respect for their integrihj- 11 This
action shall include measures to (b) promote the full realization of the social, economic
and cultural rights of these peoples, with due respect for their social and cultural
identihj, customs and traditions and institutions"89
209. In its Article 7, the same ILO Convention 169 emphasises on this right of
peoples to an environment favourable to development in the following terms
11
1. The peoples concerned shall have the right to determine their own priorities for
the process of development as it affects their lives, beliefs, institutions and spiritual
well-being and the lands they occupy or othenuise use, and to exercise as much control
as possible over their own economic, social and cultural development. Furthermore,
these peoples shall participate in the formulation, implementation and evaluation of
national and regional development plans and programmes that may directly affect
them.
2. The improvement of the living nnd working conditions of the peoples concerned and
of their standard of health and education, with their participation and co-operation,
sh.all be given priorihJ in the overall economic development plans of the regions the1;
inhabit. Specific development projects in these regions shall also be designed to promote
such improvement.
3. Governments shall ensure that, where appropriate, studies are carried out in cooperation with the peoples concerned to assess the social, spiritual, culturnl and
environmental impact that planned development activities may have on them. The
results of such studies shall be considered as a fundamental criterion for the
implementation of such activities.
4. Governments shall take measures, in co-operation with the peoples concerned, to
protect and preserve the environment in the territories they inhabit.
210. All these texts and declarations recognise the importance of a healthy
environment, as part of economic and social rights, on the understanding that
the environment affects the quality of life and the safety of the individual.
211. In the Communication Social and Economic Rights Action Centre (SERAC) and
Centre for Economic and Social Rights (CESR) v. Nigeria, the Commission stated
that the right to a healthy environment imposes obligations on States to take
reasonable and other measures to prevent pollution and ecological
degradation, to promote environmental conservation and to ensure
environmentally sustainable development and use of natural resources90 . In
its 2012 Resolution 224 on Natural Resources Governance in the run-up to the
Rio+20 Conference on Sustainable Development, the Commission had already
considered that the State has the primary responsibility to preserve and protect
natural resources, together with and in the interest of the people91 .
212. Thus, for example, in activities related to exploration, extraction, toxic waste
management, exploitation and governance of natural resources, States are
called upon to ensure that independent social and human impact assessments
are carried out, in order to guarantee, inter alia, indigenous and customary
rights, and environmental impact assessments92.
213. The Commission therefore considers that in the implementation of its
activities, the State must take into account the specificity of the indigenous
population in order not to create an unfavourable environment for their
fulfilment as human beings. As with all other human rights, States have an
obligation to respect, protect and fulfil. In the present case, the Congolese State,
°Communication 155/96 - op cit., para 52.
9
91 Resolution 224 on a Human Rights-Based Approach to Natural Resources Governance
ACHPR/Res.224(Ll)2012
Resolution 224 on a ~rj:)an~Vit!ts-_Based Approach to Natural Resources Governance
92
ACHPR/Res.224(Ll)20J~ ·:;• 4•';_-·--..
.
(f. • 0'f.:l i.; ~9;(
• i
I, :. ••
\
'-..... '
'
·.·;;
~ ••
- -
. ,t
.
•J
'f \
:",! J/
•'/
45
which has not resp onded to the submissions of the Complainants, has not
provided any evidence that it has complied with the requirements of the
provisions of Article 24 after the eviction of the Batwa people. In other words,
the Commission agrees that the eviction of the Batwa from the Kahuzi-Biega
Forest did not take into account the natural and cultural conditions that are
likely to have a negative impact on their lives. It is clear that the alleged
violation is established.
On the alleged violation of Article 1 of the Charter
214. It is clear from the Commission's well-established jurisprudence that a
violation of any provision of the Charter automatically implies a violation of
Article 1 93 . Thus, for example, in the Communication Kevin Mgwanga Gunme
and Others v. Cameroon, the Commission reiterated that a violation of any
provision of the African Charter automatically constitutes a violation of Article
1 insofar as it reflects the failure of the State Party to adopt adequate measures
to give effect to the provisions of the African Charter'94 . It therefore concluded
that having found violations of several provisions in the course of its analysis,
the Respondent State had violated Article 1'95 .
215. Noting that there was a violation of a number of Articles of the Charter in this
case, the Commission concludes that the DRC has therefore violated Article 1.
The Commission's comments on the claims for compensation
216. The Complainants allege that they are entitled to reparation and have therefore
made a number of requests for reparation. The Commission notes that the
African Charter does not contain a specific provision on reparation for
violations of the rights enshrined therein. However, in accordance with its
jurisprudence, it notes that the violation of the rights protected by the Charter
gives rise to a right for reparation. For example, in the Communication JeanMarie Atangana Mebam v . Republic of Cameroon, the Commission indicated that
reparation can take various forms depending on the rights violated and the
circumstances of the case, ranging from administrative, legislative and judicial
actions to monetary compensation96 .
93
Communication 147/95-149/96 - Sir Dowda K. Jawara v. The Gambia (2000) ACHPR para 46
Communication 266/03- Kevin Mwanga Gunme et al v. Cameroon (2009) ACHPR para 213
95
Ibid
94
96
.--- __...
/ ··, u,••~,~-~-......,
/
Communicatio n 416/12- Jean-Marie Atangana Mebara v/ Republic of Cameroon (2015) ACHPR para/!~'/
46
i;~< '··
' : ( t'~.J1,:•i,;
. i·
i
l\ ·..,;. ' ~ . :,, ..'.u .:,.I
,' ' i/
7/i
. .... ·.:.. ..._........
,
.
.
:
-
-
217. In the present case, also on the basis of the various considerations set out
above, the Commission finds the following claims for compensation to be
justified:
1. The d eclaration that the Democratic Republic of Congo is in violation of
Articles 1, 2, 4, 8, 14, 17(1)-(3), 21, 22 and 24 of the African Charter .
Indeed, as can be seen from the above developments, the Commission
found that the DRC had violated the above-mentioned Articles of the
Charter .
2. Th e sta tement that the Kahuzi-Biega Forest has been the ancestral home of
the Batwa people since time immemorial, and that its occupation by the
Batwa is essential to the preservation of their identity.
The Commission has noted that the Batwa people are an indigenous people
and as a result their way of life is intimately linked to their ancestral lands.
Indeed,
the Commission's Working Group
on
Ind igenous
Populations/Communities noted that one of the characteristics of
indigen ous peoples is the occu pation and use of a specific territory97 . In
particular, the Working Group reiterated that the survival of particular
ways of life of indigenous peoples depends on the recognition of their
rights and access to their traditional lands and natural resources98 . In this
case, the Kahuzi-Biega forest is the ancestral home for the Batwa people.
3.
The statement that the occupation of the Kahuzi-Biega forest was in no way
an obstacle to biodiversity occurring in the KBNP and that, furthermore,
their occupation created a customary property right w hich the Responden t
State has a duty to recognise and protect under international law. As the
Commission has already noted, the report of the Working Group of Experts
of the African Commission on Human and Peoples' Rights states that
traditionally the Batwa have never hunted gorillas and do not desh·oy the
forest by cutting down trees99 .
4.
A statement that fortress conservation models based on the eviction of
indigenous peoples are no longer relevant, and that in cases where such
97 Report of t he Working Group of Experts of the Afri can Commission on Human and Peoples' Rights on
Indigenous Populations/Communit ies, adopted by t he African Commission on Hu man and Peoples' Rights at its
28th Ordinary Session, 2005, p. 100
98
Report of t he Worki ng Group of Experts of t he Afri can Commission on Human and Peoples' Rights on
Indigenous Populations/Communities, adopted by the Afri can Commission on Human and Peoples' Rights at its
28th Ordinary Ses i
·.._ p. 100
99 Jd
27 .:;.;'.,.o:1•~•"·',,;:;·em, p.
• /•,•' r1<£T, 1· · 'o.• ",
,4·:·•' ~~...
'/
I
.
·,
.,~
}t,.,.
'j;
,,
~ · ·-·;:
', '
•\
i•\'I'
':· . ( J;:1r,!'1i.t
l · --~
\
• '·•,. • ,,'
..-~
. _:' I
• - -... ::- ... -,.,,,.,"'
47
5.
6.
a.
measures are necessary, they must take into account their impact on
ind igenous p eoples.
The Commission has already indicated this in its Resolution on the
approach to the governance of natural resources. In this resolution, it
stressed that in activities related to exploration, extraction, toxic waste
management, exploitation and governance of natural resources, States
must ensu re that social and human impact assessments are carried out, to
guarantee, inter alia, indigenous and customary rights, and environmen tal
impact assessments100
A statement that the Batwa are the best gu ardians of the environment and
tha t conservation measures to exclude them from their land can be
dangerous and counterproductive to conservation efforts.
A finding that the creation of the KBNP, and the decision to allow nonBatwa communities to settle and remain on their ancestral lands, has
contributed to the destruction of the Kahuzi-Biega forest and has not
benefited the Batwa people, in violation of Article 21 (2) of the Charter
Restitution
218. The Complainants appeal for restitution. Restitution is a procedure that is
provided for in the Charter. Article 21 (2) provides that in case of spoliation,
dispossessed persons have the right to legally recover their proper ty as well as
to receive adequate compensation. The Commission regards restitution as a
valid and appropriate way to restore victims to the state they were in before
the violation of the rights concerned . For exam ple, in the Communication
Mbiankeu Genevieve v. Cameroon, it notes that restitution remains the reparation
par excellence since it responds to the principle of restitu tion in integrum which
requires restoring the victim to the situation prior to the violation101 . In the
Endorois case, the Commission called on Kenya to "recognise the property
rights of the Endorois and to return the Endorois" ancestral land 1102 .
219. In this case, the Complainants are asking for the restitution of their ancestral
land throu gh a series of measures they wish to be taken by the Democratic
100
Resolution 224 on a Human Rights-Based Approa ch to Natural Resou rces Governance
ACHPR/ Res.224(ll)2012
.....-.:=101
Communication 389/10 - Mbiankeu Gene(ie_
,0
,,._) ·,r s t r ~ -(2015) ACHPR para 131
102
Communication 276/03 - op. cit. para 298 ·: •• •~" ___
~'
'• ~
-- - '
·,,
('
, ..•·.
.. :·
'••.•
\·
\
'
v·J\
\
i,:
::~·4g_\~
~ •• :r
.t
?'
..i. ·,
.'
•
. ·"
• - ·-· .. ~ ,:,/
.
.
'
•
JI·
Republic of Congo. Of all these requests, based on Article 1 of the Charter,
which stipulates that the Member States, party to the Charter recognise the
rights, duties and freedoms set out in the Charter and undertake to adopt
legislative or other measures to give effect to them, the Commission finds the
followin g to be justified:
1.
Adoption in its domestic legislation, as soon as possible, after free and
fully informed consultation with the Batwa, of legislative, administrative
and any other measures necessary to establish an effective mechanism
for the delimitation, demarcation and titling of the territory traditionally
occupied by the Batwa and the various natural resources attached to it
in accordance with their tradition.
The DRC may also ratify the International Labour Organisation
Convention No. C107 concerning Indigenous and Tribal Peoples, 1957.
11.
Take physical, legislative and administrative measures to (1)
d emarcate, delineate and provide a title, or clarify and protect, the
relevant Batwa land, and (2) until such measures are implemented, to
refrain from any act or omission that may lead the State or its agents
- or third parties acting with its consent or tolerance - to have an effect
on the existence, value, use or enjoyment of Batwa ancestral lands or
lands currently occupied by the Batwa on the periphery of the KBNP
iii.
The annulment of all laws, ordinances or other measures prohibiting
the presence of the Batwa on ancestral lands and the enjoyment of the
fruits of these lands.
1v.
The withdrawal of non-Batwa from Batwa territories and ancestral
lands within six months of notification of the decision. Indeed, these
non-Batwa groups are damaging and degrading the forest through
their activities.
220. However, the Commission finds the following request inappropriate and
therefore rejects it. In particular, the Complainants request a review of II the
conditions for the establishment nnd mnnngement of nature reserves nt the nntionnl
level to ensure that they do not impede the full use and enjoyment of indigenous
peoples' lands. Further ensure that all measures relating to the future of these
territories, particularly but not exclusively in the area of conservation, place
indigenous communities nt the forefront, with the State seeking to build models of comanagement of the territories with the indigenous peoples concerned. The ~. .>.
Commission rejects this request because the Com plainants represent only tW':· /4:_:~_ .:
49
!"-: ( ~ - '
\.i \
\ \'
·:,\
'
u
~J
-~
·• ~-
~,,,.. "
-----
.
• ./
I
/
Batwa in this case and therefore cannot act on behalf of any other person or
community.
b. Compensation
221. In its jurisprudence, the Commission recognises that w hen restitution is
impossible or inappropriate, the related obligation is resolved throu gh
compensation. The principle being that "compensation must be fair, adequate,
effective, sufficient, appropriate, victim-oriented and proportionate to the
damage suffered 11103 .
222. In the present case, the Complainants have submitted a series of claims for
compensa tion. The Commission w ill attempt to give its opinion on any of
these claims. In particular, the Complainants request:
1.
The establishment, in consultation with the Batwa, of an independent
panel with expertise in the area of compensation and redress for human
rights violations, to assess the appropriate level of compensation that
should be awarded to the Batwa.
The Commission notes that this panel is necessary and implores the
Independent National Human Rights Commission to play the role of
appointing these experts at its convenience.
11.
The payment of damages to reflect the loss of life, property, hindrance to
development, depletion and destruction of natural resources on ancestral
lands.
The Commission notes that the Complainants have not established,
with the help of supporting documents, the value of their moral and
material losses. Thus, in the absence of a mathematical benchmark for
this claim, the Commission cannot d etermine the amount
corresponding to the damage caused by the DRC. Consequently, and
in accordance with its relevant practice, it refers the Complainants to
the national courts for the assessment of damages, in accordance with
its well-established jurisprudence.104 In any event, such compensa tion
should be fair, adequate, effective, sufficient, appropriate, victimoriented and proportionate to the harm suffered. 105
111.
Payment of non-pecuniary damages, to include the loss of their freedom
to practice their religion and culture, and the threat to their livelihood, as
well as to compensate community members for abuses commi tted by the
PNKB guards.
For this claim too, the Complainants were unable to show the estimated
value of the damage that the Batwa suffered. In this sense, it is difficult
for the Commission to estimate the amount of this damage.
zv.
The crea tion of a community development fund administered by the
community to address the growing deficiencies in health, housing and
education in the community.
In this regard, the Commission notes the jurisprudence of the InterAmerican Court which has already established such a fund. Thus, in the
case of Kali I na and Lokono Peoples v. Suriname, this Court found it necessary
to create a community development fund w hose main purpose is to
develop projects in the areas of health, education, food security, resource
management and other provisions that the Kalina and Lokono Peoples
consider relevant for their development. 106 It ordered the State to take
administrative, legislative an d financial measures and to make available
the necessary human resources to create and implement this fund 107 . The
court also su ggested that the Kalina and Lokono peoples choose a
representative to dialogue with the State on the implementation of this
fund in accordance with the will of these peoples. In the case of
Sawhoyamaxa Indigenous Community v. Paraguay, the same court ordered
the Uruguayan State to create a Sawhoyamana Indigenous People's
Development Fund worth US$ 1,000,000.00 (one million United States
Dollars) to be used in a programme of education, housing, agricultural
and health projects, as well as the production of drinking water and the
construction of sanitary infrastructure for the benefit of the members of
this community108 . Thus, based on this jurisprudence, the Commission
requests the DRC to create a development fund to support the Batwa of
Kahuzi-Biega in projects that would enable them to provide themselves
w ith a decent life in terms of health, education, housing, water and
sanitation and other areas that the Batwa themselves deem necessary.
106
Inter-American Court of Human Rights, case of the Kalina and Lokono Peoples v. Surname, Judgment of 25,
2015, para 296
107
lnteramerican Court of Human Rights, case of the Kalina and Lokono Peoples v. Suriname, Judgment of 25,
2015, para 296
_ :-·--...,_
108
lnteramerican Court oU-tu~r:i'.Sights,'Case of Sawhoyamaxa Indigenous Community v. Paraguay, Judgment
of March 29, 2006, parri:i ~G~~
~•:·~
/I ''
II :
\ · -~~ l. _·
':-
-~
11 li:1~
1
\
.- 1
f
ri
11
I
.) ;
:..\, ·< . .:-. ;, _;~_..~
J
51
v.
The payment of royalties from existing economic activities in the KahuziBiega Forest.
As the Commission has already indicated in its analysis on the merits, the
Batwa of Kahuzi-Biega have a right of ownership over their ancestral lands
and territories. Since this right implies the right to enjoy, use and dispose of
the land, this indica tes that the royalties from economic activities related to
this land should accrue to them. Therefore, the Commission finds this claim
justified and calls on the DRC to pay these royalties.
v i.
Ensure that the Batwa benefit from employment opportunities within the
KBNP, particularly in the area of conservation and land repair.
The Commission agreed to this request. Indeed, the Batwa have been found
to be good protectors of the environment. Thus, offering them an
opportunity to work in the Park will contribute to the conservation and
protection of the env ironment in this forest.
vii.
Ensure regular dialogue with the community on how best to implement
measures to provide the Batwa with access to free basic public services, with
particular emphasis on issues relating to water and sanitation, adequate
health care and education.
The Commission finds this request relevant. Indeed, as the Inter-American
Court indicated in the case of the Yakye Axe Indegenous Community v. Paraguay,
the State has a duty to take positive and concrete measures to realise the right
to life, especially in the case of vulnerable and exposed persons, whose care
becomes a matter of high priority109 . In this sense, one of the most effective
ways to ensure the realisation of the right to life for indigenous peoples is to
engage in regular dialogue with the peoples concerned . It is from this dialogue
that the State w ill know the weak points that require special attention.
viii. Work collectively with the Batwa community to protect their traditional values
and beliefs and work constructively with community members to disseminate
it nationally as a source of pride in Congolese culture.
The Commission finds this request relevant as well. Traditional values and
beliefs are important pillars of a people's cultural identity. States have an
obligation to protect and promote them in order to avoid their disappearance.
In the present case, the Commission invites the DRC to integrate the culture
of indigenous peoples into the educational curriculum. The Commission had
alread y made such a recommendation in other countries. This is the case, for
-::-::=-~,,__
109
Inter-American Cour!tJlµ~~~\Rigt'jts{ . ·ase ~f the Yakye Axe lndegenous Community v. Paraguay, Judgment
;,,'~
of June 17, 2005, para . .i ,,'<-t"
. .. . . .
,;
,. :
\_,
• .
\•
..~\ '
\
.t; ,._...J f,1 \l
tf
... \
._.
. :;\•
-~
f
.,. .•··
"'•-.
I
•,/
·-
•I
7')
'/
✓
-
/
;
52
example, in the Republic of Congo, a neighbour of the DRC. In its report on
its mission to the Republic of Congo from 15-24 March 2010, the Commission 's
Working Group on Indigenous Populations/Communities urged the State to
"integrate elements of indigenous culture and identity into education and
literacy programmes; and develop technical and vocational education that
takes into account indigenous know-how and econom y 11110 .
b.
Guarantees of non-repetition
223. As measures to guarantee non-repetition, the Complainants requested a series
of actions including:
1. Adoption, without any further delay, of national legislation to implement
the rights and duties enshrined in the UNDRIP, officially recognising
ind igenous peoples in the DRC and defining specific measures for their
protection.
The Commission notes that this request is not relevant. Indeed, a
declaration is not a binding instrument. Thus, States are not obliged to
incorporate it into their domestic law. It would therefore be contrary to the
rules of international law to require the DRC to put in place a law
implementing the rights and duties enshrined in the Universal Declaration
on the Rights of Indigenous Peoples. Instead, the Commission invites the
DRC to put in place a law on the promotion and protection of indigenou s
peoples as is the case for its neighbour, Congo.111 This law could be a source
of inspiration for the DRC.
2.
Ad option of legislative, administrative and other measures to recognise
and guarantee the right of the Batwa to be effectively consulted, in
accordance w ith their traditions and customs, and/ or to give or withhold
their free, prior and informed consent to development, conservation or
investment projects on Batwa ancestral lands in the Kahuzi-Biega forest, in
order to implement adequate protection measures to minimise the adverse
effects that such projects may have on the social, economic and cultural
survival of the community;
This claim requires legislative, administrative and other measures to
recognise and guarantee the rights of the Batwa. The Commission considers
110 African Commission on Human and Peoples' Rights, Report of the Working Group of the African Commission
on Indigenous Populations/Communities, Mission to t he Republic of Congo from 15-24 March 2010, adopted at
the 49th Ordinary Session of t he Commission from 28 April t o 12 May 2011, p. 97
,, ;-:::::- -- - ..
111 The Republic of Congo has a law on th e promotion and protection of indigenous peopJ.ef~S~f ~a~ No·:s,,2011
of 25 February 2011 on the pro mot ion and protection of the rights of indigenous peopt ~·--•0
:,5-.:
_.-::
\
53
j,
:; /
'-1~ .•
~
, ,1
r' i
,\ : __ , ~ \ .·;
'-'-. '-,
\.
.
-
' , .. -;,·..
·/
# , , ,"
,,: ..~>
~,
'
that this request would be contrary to the general rules of law. Indeed, it
considers that a law cannot be created for the Batwa alone. One of the
fundamental characteristics of laws is their generality. When it is made for
a group of people, it becomes discriminatory and therefore contrary to the
rules of law.
3.
4.
Issuance of a full public apology by the Respondent State to the Batwa
people, including an acknowledgement of its responsibility for: (a) the
abuse by park rangers resulting in loss of life; (b) the deaths resulting from
the eviction; and (c) the inhumane and degrading living conditions to
which the community was subjected as a result of their eviction, as well as
any death or other harm caused to its members as a result of these
conditions.
The Inter-American Court has considered this remedy necessary and
impor tant. Thus, in the case, Kichwn Indigenous People of Saraynku v . Ecuador,
the Inter-American Court requested the State to acknowledge publicly of
the breach of international responsibility over the violations that the Court
had found in the judgment. 112 Referring to this jurisprudence, the
Commission finds that this request of the Complainants is relevant.
Consequently, it requests the Democratic Republic of Congo to publicly
acknowledge its international responsibility for the human rights
violations of which the Batwa of Kahuzi-Biega were victims within a period
not exceeding six months from the notification of the judgment. This
acknowledgement should be made in a public ceremony in the presence of
senior state officials and the people, in the language that the Batwa
understand, and should be w idely publicised in the media.
Recognise the Batwa as full citizens of the DRC, and their social, cultural
and other contributions to the heritage of humanity, including but not
limited to their knowledge of medicinal plants, to be included in school
curricula throughout the DRC;
The Commission finds this request justified and appropriate. Indeed, it
would be in line with the United Nations Declaration on Indigenous
Peoples. Actually, in the preamble to this Declaration, States have
recognised that indigenous peoples are equal to all other peoples while
acknowledging the right of all peoples to be different, to consider
themselves different and to be respected as such.113 The Declaration also
112
Inter-American Court of Human Rights, case of Kichwa Indigenous People of Sarayaku V. Ecuador,
Judgement of June 27, 2012, para 305
113
Preamble of the United Nations D:)2~~~;~~ -ttie··R~~hts of Indigenous Peoples, Resolution adopted by the
---=---
General Assembly on 13 September
i,?':'/ .f;,-:
."·..-:--:
·,:\
\•
\(,.
•· -··.,,.
.,~
•
54·''
I'" ..
•·. ..
~• •
··~'
'
\ ..
'
' .....
./.,, •I
recognises that all "peoples contribute to the diversity and richness of
civilisations and cultures which constitute the heritage of humanity 11114 .
Therefore, in the opinion of the Commission, the recognition of the Batwa
as a People of the DRC and their social and cultural contributions to the
Heritage of Humanity is commendable.
5.
Provision of training in human rights and indigenous peoples' rights to
ICCN administrators and park rangers in PNKB involving the Batwa
community.
Referring to the jurisprudence of the Inter-American Court in this matter,
the Commission recommends this training. Indeed, on a similar request in
Kalina and Lokono Peoples v . Suriname, the Inter-American Court ruled that
the State of Suriname must, within a reasonable time, establish mandatory
permanent programmes and courses that include modules on national and
international standards of indigenous and tribal peoples' rights, in
particular on respecting, protecting and guaranteeing the right to collective
property.115 The court d ecided that these programmes should be addressed
to law enforcement officials. In this case, such training would be an
important remedy to the violations of Batwa rights that are perpetrated by
PNKB guards and ICNN administrators perhaps out of ignorance. The
Commission calls on the DRC to organise such training for the two
categories mentioned above.
224. Furthermore, the Complainants request that an independent compensation
body be appointed within three months of the decision; that the amount of
compensation, royalties and the Community development fund be agreed
within one year of the date of the decision, and that payment be made within
18 months of the date of the judgment. The Commission agrees to the
establishment of this body and proposes that payment be made wi thin 6
months of the notification of the judgment.
225. On the other hand, the Commission does not find the Complainants' request
tha t the Respondent State identify the State representatives, ministries or other
competent bodies responsible for implementing these recommendations to be
justifiable. Indeed, the Commission considers that the requests already
granted in this decision are sufficient to allow for effective reparation for the
damage suffered by the Batwa. In particular, the establishment of an
114
Preamble of t he United Nations Declaration on the Rights of Indigenous Peoples, Resolution adopt ed by the
General Assem9)y:.oi:i:13-5eptember 2007.
115
lnteram&~·
.•a\ ~~-~t ~•f;H~,an Rights, case of the Kalina and Lokono Peoples v. Surname, Judgment of 25,
2015, para ,09 • .,,~~ ~ - . . ·-.. \
i' J / ,., •.., ·,~ t
·J:,\.. :·
\ • • •• i
'., I
·,' . ...·
,. \
-. j y
,;:
'
,
°' .
: ..- .· , ·,_,
55
independent panel with expertise in the field of compensation and reparation
for human rights violations already proposed is sufficient.
226. The Complainants requested the Commission to make such further or other
recommendations as it deems appropriate in the circumstances of the case.
In this regard, based on the jurisprudence developed by the Inter-American
Court, the Commission requests the DRC to publish this judgment. Indeed,
in the case of Xti.kmok Kti.sek Indigenous CommunihJ v. Paraguay, the Court found
that even if the Complainants had not requested this remedy, it would be an
important measure of satisfaction for the time that this community has waited
in requesting the protection of its rights. 116 It requested the Republic of
Paraguay to publish certain parts of its judgment in the official gazette, the
publication of a summary of the judgment prepared by the court in a daily
newspaper of national scope, the publication of the judgment in its entirety
on an official government website for a period of at least one year117 . Finally,
it requested that the summary of the judgment be read on a radio station
covering the region of the Xakmok Kasek community. The Inter-American
Court has decided this remedy in a number of other judgments118 . Thus, in
the present case, the Commission requests the Democratic Republic of Congo
to publish a summary of the judgment within a p eriod not exceeding 6 months
after notification of the judgment:
• The official summary of the judgment prepared by the
Commission in an official journal.
• The summary of the judgment prepared by the Commission in a
reputable newspaper with national coverage.
• This decision in its entirety on an official website which will be
available for one year.
The Commission also finds that it would be appropriate for the State to
publish the summary of this decision in French; that of BATWA and other
surrounding communities on a radio station that covers the Kahuzi-Biega
Park area.
116
Inter-American Court of Human Rights, Case of The Xakmok Kosek Indigenous Community V. Paraguay,
Judgement of August 24, 2012, para 298.
117
Ibid
118
lnteramerican court of Human Rights, case of Hui/ca Tecse v. Peru, Judgment of March 3, 2005,
para 111. See also Inter-American Court of Human Rights, case of the Kalina and Lokono Peoples v.
Surname, Judgment of 25, 2015, paras 312 & 313. See also lnteramerican Court of 1-!'!~!tPi:!1)?.i:lt~, case
of The Kichwa Indigenous People of Sarayaku V. Ecuador, judgment of June 27,2012, p cl 50J L•~•,i ., ··, •
t
56
r1X.-~'\ /\\
\ .... ,
.
Jf'''
' --~ ~~
__
'
~.. ·~ .- ,,
,.:;··,
-~
The Commission's Decision on the Merits
In view of the foregoing, the Commission
227. Declares that the Democratic Republic of Congo has violated the provisions of
Articles 1, 2, 3, 4, 8, 14, 16, 17 (1)-(3), 21, 22 and 24 of the African Charter.
228. Declares that the Kahuzi-Biega Forest has been the ancestral home of the Batwa
people since time immemorial. Consequently, the occupation of this forest by
the Batwa people is essential for their survival and the maintenance of their
cultural identity.
229. Declares that the occupation of the Kahuzi-Biega Forest did not constitute any
danger to biodiversity and that, consequently, the forest is a customary
property that the Democratic Republic of Congo is obliged to recognise and
protect under international law by putting in place a law on customary
property.
230. Declares that fortress conservation models based on the exclusion of
indigenous peoples from their ancestral lands without their free and prior
consent are no longer relevant and recalls that, in cases w here such
conserva tions are necessary, their impact on indigenous peoples must be
carefully analysed and remedied. In particular, the conservation model used
in the Kahuzi-Biega National Park has failed, by excluding the Batwa as
custodians of the forest.
231. States that as good stewards of the environment, measures to exclu de the
Batwa from their land may be harmful to the environment given the positive
historical record of conservation of the Kahuzi-Biega forest by the Batwa
232. Notes that the creation of the Kahu zi-Biega National Park and the
authorisation of other non-Batwa communities to continue to exploit their
ancestral lands constitutes a violation of the Charter.
233. The Commission therefore requests the Democratic Republic of Congo to:
1.
Adopt as soon as p ossible, in consultation with the Batwa, such legislative,
administrative and other measures as may be necessary to establish a
mechanism for demarcation and titling of Batwa ancestral territory and
related rights in accordance with their values, customs and beliefs.
m.
Take physical, legislative and administrative measures to clarify and
d etermine Batwa ancestral lands
IV .
Reintegrate the Batwa into their ancestral territory
v.
Refrain from any action that may prevent the Batwa from using or enjoying
their ancestral lands in the Kahuzi-Biega National Park until these measures
are adopted and implemented,
v1.
Rescind all law s, ordinances or other measures that prohibit the presence of
the Batwa on their ancestral lands and their traditional use and enjoyment.
vii.
Take the necessary material, legislative and administrative measures to
implement the African Union Convention for the Protection and Assistance
of Internally Displaced Persons in Africa (Kampala Convention)
viii.
Remove, within a period not exceeding 6 months from the notification of
this decision, non-Batwa from Batwa ancestral lands and territories.
IX.
Establish, in collaboration with the National Independent Human Rights
Commission, an independent committee of experts in compensation and
repara tions for human rights violations to examine the value of
compensation required to redress the harm suffered by the Batwa.
x.
Establish a community development fund administered by the community
to address growing deficiencies in health, housing and education;
x1.
Paying royalties from economic activities in the Kahuzi-Biega Forest;
xii.
Ensure that Batwa are given priority for employment opportunities in
Kahuzi Biega N ational Park, particularly in guarding, conservation and
land repair;
xm.
Engage in regular dialogue with the Batwa to provide them w ith the basic
public services they need;
xiv.
Work with the Batwa, through the ministry responsible for culture, to
protect thei_!.::~9-.1 itional values and beliefs as a source of pride in Congolese
.:
CU 1tu:i;,e·;.~ ,·. ", "l'.
. . ,,..• ~t...
• '
I~
••
I ,.• ; • J
'·
•• \
(C-:-·, ··\
\\,---J
'
:.:~ .. _. --< •
f •
; ··_ ··&
::>_;__..-,:)\ \
.'~',.1;
58
xv.
Adopt national legislation on the rights of indigenous peoples and define
measures for their protection
xvi.
Make a full public apology to the Batwa people, acknowledging the abuse
by park rangers resulting in loss of life, the deaths resulting from eviction,
and the inhumane and degrading living conditions to which the Batwa
community has been subjected
xvii.
Recognise the Batwa as citizens of the DRC, including their social, cultural
and other contributions to the heritage of humanity;
xviii. Provide training on national and international human rights and
indigenous peoples' standards to ICCN administrators and PNKB rangers;
xix.
Publicise this decision in accordance with the instructions drawn up by the
Commission in paragraph 226 of this decision.
Adopted by the African Commission on Human and Peoples' Rights at its 71st Ordinary
Session held virtually from 21 April 2022 to 13 May 29~ •-~i.;_,•~·-·• .:, ,. •.
.. ·,
'':
•
,
( , ·; ~} •
• I
.!. •,
\
,.,--·--.
. \
;~ • • ,
,, ~I;
,:
·,
I
' - ~~'---~-'. J
' ~
59
'.