Article/ Feature
13/January/2012
Time to recognize specific rights of indigenous population in Tanzania
By: Clarence KIPOBOTA (Advocate)*
Probably, most of Tanzanians are indigenous as they find their roots here comparing with colonialists who invaded our boarders and remained to be aliens in our land. But, there are some tribal people here in Tanzania like Maasai, Hadzabe, Barbaig, Akie, and Taturu who have voluntarily decided to perpetuate their cultural distinctiveness from other groups.
According to United Nations Working Group on Indigenous Populations; the African Commission on Human and Peoples Rights and findings of reputable international organizations including International Working Group for Indigenous Affairs (IWGIA) there are indigenous people in Africa and Tanzania in particular.
The literatures from those institutions show that, because of the nature of the life style of people like Maasai and Hadzabe, they become completely attached to and use of their traditional land, where their ancestral land and cultural survival has a fundamental importance for their collective and cultural survival as peoples.
This is just one of the many factors which make them distinct and therefore indigenous to their land, culture and ways of survival.
It is very unfortunate that Tanzania, like several other governments of African states have refused to recognize use of the ‘indigenous’ term to refer to certain or particular group within their states. However, the Working Group of Experts on Indigenous Populations/Communities of the African Commission on Human and Peoples’ Rights, observes that, ignoring to address this issue because of any reason means failure to address internal structural relationships of inequality that have persisted after liberation from colonial dominance.
In other words, the equality of rights amongst different groups within the communities need to accord special attention of certain groups with distinctive characteristics from the main streams. Failure of this means violation of their right to choose ways of livelihood.
According to IWGIA, because of the failure to grasp this important focus, the indigenous people, especially the Maasai and Hadzabe, have been subjected to a myriad of rights denials, as they are regularly face land alienation, denial of justice, violation of cultural rights and lack of constitutional and legislative recognition.
Speaking before the UN Working Group on Indigenous Population in 2006, Mr. Moringe Parkipuny, a Maasai from Ngorongoro District who is former Member of Parliament of that District, said the following statement regarding the complexity of issue concerning minority (and indigenous) rights in Tanzania:
‘Preoccupation with the promotion of the rights of the minority and the vital needs to consolidate national identity and unity are beyond doubt necessary undertakings. But, these concerns should never be persuaded to the exclusion of the protection of the legitimate rights of vulnerable minorities. To do that undermines the very objective of national unity and places a primary component of human rights to cultural diversity outside the agenda of national ethics, integrity and freedom to development options.’
That is, most fundamental rights for the indigenous minorities is to maintain their specific cultural identity and the land that constitutes the foundation of our existence as people are not respected by the state and fellow citizens who belong to the mainstream population.
The provisions of the ILO Convention Number 169 Concerning Indigenous and Tribal Peoples in Independent Countries of 1989 state the same. The said convention calls for recognition of specific rights of these communities especially the intrinsic link between their survival and their traditional land.
Article 26 of the ILO Convention Number 169 state that, indigenous peoples have the right to the lands, territories· and resources which they have traditionally owned, occupied or otherwise used or acquired and that, States should give legal recognition and protection to the same. Sub-article three elaborates further that, such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
There are several countries around the world which have already enacted specific law to give legal recognition of indigenous peoples in their countries. One of those countries is Congo Brazzaville. Tanzania can do the same rather than continuing using a general defense to deny the reality.
My recent survey to twelve districts including Ngorongoro and Mbulu districts where Maasai and Hadzabe are respectively and predominantly living shows that, non-recognition of specific rights of these groups has actually been to the detriment of their culture and aspirations.
Because of their poor education background (among other factors), their conventional land, which the ILO Convention Number 169 talks about, have been taken by ‘invaders’ and push them out of their ways of life.
Then, having lost their only asset and means of survival as traditionalists, the Maasai men and women are forced to go to the cities to secure their survivals. They guard rich people and paid trivial remunerations. The Hadzabe try their luck in Yaeda Chini and Mono-wa-Mongo villages (Mbulu District) to wear traditional garments so that tourists can tip them. They display themselves in that way for a pay. It is unfair and inhuman for whatever justification one can advance.
The civil society organizations such as Hakiardhi, Pingo’s Forum, Cords, Taphgo, Ngonet, Alapa, Paicodeo, TNRF and Ujamaa CRT have spoken a lot about all these. On 27 March, 2007 the United Nations Committee on Elimination of Racial Discrimination (CERD) required the government of Tanzania to adopt legislative measure to recognize the specific rights of indigenous population living in Tanzania. On 29 July, 2009 the United Nations Human Rights Committee (HRC) did the same.
Therefore, local and international pressures need to be adhered to. There is a point that they convey for the betterment of these minority and indigenous people.
The first and immediate avenue that could give a government of Tanzania a reason to move to a the second stage is to accept the recommendations from paragraphs number 86.45 to 86.52 which were put on-hold by the Human Rights Council (HRC) sat on 3-14 October, 2011 under Universal Periodic Review (UPR) process.
The said paragraphs hold lots of meaning to indigenous population. They advise the government to commit itself that it will take action against alleged perpetrators of forced eviction and pollution of drinking water; align the policies to ensure access to land and water for pastoralists; and recognize the notion of indigenous people with a view to effectively protecting their rights.
Moreover, adopt measures to preserve cultural heritage and traditional ways of life of indigenous people; launch a credible investigation of forced evictions and land conflicts and use the results of this investigation to help draft new legislation, which fully takes the rights of indigenous peoples into account; and to set up statutory consultative mechanism with organizations working on the rights of indigenous peoples to help avoid further conflicts.
It is also important for the constitutional review process to consider including specific provision on the rights of these groups. Their vulnerability, as stated above, is quite vivid and justifies special and specific attention under the provisions of the constitution and other laws. Kenya and South Africa have done this.
The minority and marginalized people should be part of the large population which enjoys the fruits of being independent nation.
* Clarence KIPOBOTA holds Bachelor of Laws Degree (LL.B (Hons)), Masters of Community Economic Development (Msc. CED) and Certificates in Human Rights and UN Treaty Monitoring Bodies. He is an Advocate of the High Court of Tanzania, currently working as Legal Consultant with LEGAL AND DEVELOPMENT CONSULTANTS LIMITED (LEDECO Advocates). He is also Human Rights Activist. Email: kipobota@yahoo.com Tel: +255 762776281/ +255 222761730.
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