Ensure compliance with core principles
40 section does not aim to exhaustively list all the core principles that might be
considered important, but rather how a core principle can be expressed in the law to promote compliance. Such measures also show how national law can
help address tensions between customary practices and core principles – for example where customary laws discriminate against vulnerable groups within the
community e.g. women or vulnerable groups in neighbouring communities e.g. indigenous peoples.
Ensuring compliance with the principle of equal land rights for women in Tanzania
Under Tanzania’s Village Land Act, women’s land rights are protected not only in processes of application for land, divorce and widowhood, but also in
the sale, transfer or surrender or land. Importantly, the burden is not on the woman, widow or orphan to raise an objection in the event of a transgression
against her land claim, but on the village council. If a man has surrendered his land the village council must ofer that right irst to the individual’s
wife and then to all dependents. Finally, to ensure against intra-community discrimination in land administration, management and dispute resolution,
the act provides for gender balance on land administration and management bodies and allows the village assembly to seek the support of district oicials
when they feel that the village council is acting unjustly.
7 7
Knight R. 2010 Statutory recognition of customary land rights in Africa. An investigation into best practices for lawmaking and implementation. FAO Legislative Study 105: 151-213. Available
at http:www.fao.orgdocrep013i1945ei1945e00.htm
Taking special legal measures to address the marginalisation and discrimination of indigenous peoples in the Republic of Congo
he Republic of Congo’s 2011 Law Concerning the Promotion and Protection of the Rights of Indigenous Populations takes steps to address
indigenous peoples’ rights issues through a stand-alone law. he law forbids discrimination against indigenous peoples and underlines their right to
equality. It gives a deinition of indigenous populations based on their distinct cultural identity and way of life, and their extreme vulnerability, and states that
the use of the derogatory term ‘pygmy’ is a criminal ofence. It also contains provisions on civil, political and cultural rights and provisions relating to
health, education, labour and environmental rights. Importantly, the law
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Complianc e with c
or e principles
places a duty on the State to consult indigenous populations in a culturally- appropriate manner and through their own representative institutions or
self-chosen representatives, in all decision-making about legislative and administrative measures and development projects that may have a direct or
indirect efect on indigenous populations.
Consultation must include the participation of indigenous women and men, take account of indigenous decision-making processes, use a language
understood by indigenous populations and provide all relevant information to them in terms that they can understand. Consultation must be done in
good faith, without pressure and threats, with a view to obtaining indigenous populations’ free, prior and informed consent.
Another key provision is that the law guarantees rights of property, possession, access and use over lands and natural resources that indigenous
populations have traditionally occupied and used. As a step towards implementing this right, the State is to facilitate delimitation on the basis of
customary land law and preserve customary land law even where indigenous populations do not have documented land titles.
he law arguably lacks practical procedures for ensuring its enforcement and implementation. Successful implementation will therefore depend on the
quality of planned implementing decrees and whether other State laws and practices e.g. sector laws on forests, mines, agriculture and environmental
impact are made consistent with the rights and principles protected by the indigenous populations law. he deinition of indigenous populations falls
short of international law, as it does not speciically refer to the right to self- deinition as indigenous, or attachment to particular lands, territories and
their natural resources, which are both widely regarded as key aspects of what it means to be indigenous. International and regional law may therefore be
needed to interpret and supplement the deinition in practice. However on the whole, the law is a huge step forward for indigenous rights in the Republic
of Congo and provides a valuable example of good practice that could be considered and adapted by other African law reform processes.
Other African countries are also developing laws on indigenous peoples’ rights, for example Democratic Republic of Congo has developed a draft
bill on indigenous peoples, Central African Republic is in the process of implementing ILO 169 on the rights of indigenous peoples and Cameroon
has taken initial steps towards developing a national policy or law on indigenous peoples.
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✔ At the beginning of the reform process, develop a multi-stakeholder
process including commonly marginalised groups such as women and indigenous peoples, to agree on the core principles to which the law
reforms should adhere. hese can be in a separate policy andor in the law itself. his avoids risk of divisions between the parties due to continued
debate about the core principles throughout the process. Rather, the agreed principles will provide an agreed framework for the law reform.
✔ Explicitly protect the land and resource rights of minority communities
and indigenous peoples who have sufered long-standing marginalisation and discrimination from State policies and practices, as well as from more
dominant ethnic groups. A national and local ‘culture’ of discrimination is likely to require special protective measures to achieve real change.
hese measures should relect the urgency and importance of securing land and resource rights for indigenous peoples, whose very survival as a
people is put at risk by poor or insecure rights to their lands, territories and resources.
For more information about such multi-
stakeholder processes see FERN 2006 Provoking
change: A tool kit for African NGOs.
http:www.fern. orgpublicationstoolkits-
reportsprovoking-change- toolkit-african-ngos
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