Resolution of the African Commission on Human and Peoples’ Rights on the Protection of Sacred Natural Sites and Territories: a critical overview

2.2.1 Earth jurisprudence

Earth jurisprudence is a nascent theory promulgated by Thomas Berry in the late twentieth century. The theory places at its centre the earth. It states that, earth is the primary source of law and that all other laws governing humans are derived from it and must duly comply with its laws for the integrity and well-being of all present and future generations.17 Berry recognised that the two sources of inspiration for Earth jurisprudence are earth itself, and indigenous and local communities who directly derive their governance systems from earth’s laws.18

Earth jurisprudence presents an ecocentric approach towards environmental conservation as opposed to an anthropocentric approach that seeks to put human beings at the centre of rights. Other writers have expounded on this to provide that earth jurisprudence challenges human beings to transform their destructive presence on earth by modifying human-centred governance including policies, laws, practices, religion and economics, into earth-centred governance.19 This is because the earth, just as human beings, is considered to be a subject of the law that has rights which are duly protected and not merely an object of the law (commodity).

An approach where the environment unlike humans is the centre of the law is a radical paradigm shift that will find difficulty to be embraced by various jurisdictions. Many laws, more so laws of protection of environment, look at environment as a tool to be used upon regulation and supervision by government agencies or institutions.20 Recognition of SNST, however, requires that this current status quo be challenged and that laws are made or practices encouraged while considering the integrity and health of the earth

because this provides better legal protection for mother earth, its systems plus non-human elements of the environment.21 Earth jurisprudence considers the desires of human beings not to be superior to those of other beings but to constitute part of a broader context of the earth system as a whole.

Therefore, preservation of SNST requires a meaningful human-nature relationship that is rooted in spiritual, traditional and customary way of life of a community. As nations continue to destroy these areas of great traditional significance due to ignorance, over consumption and exploitation, the entire fabric of our traditional well-being is in turn affected.

2.2.2 Rights of nature

As postulated by earth jurisprudence jurists, every element of the earth has the right to be, the right to habitat and the right to fulfil its role in the cycle of the earth community.22 Nature has its own rights. Rights of nature laws advance the principle of intrinsic value of nature further developing the idea that humans should consider themselves as well as nature to be part of an entire ecosystem and that the two must live in harmony with one another.23 Intrinsic value of nature ‘stands on the premise that all beings, systems, and entities in nature warrant legal consideration and should be given legal recognition’.24

On the international scene, the Universal Declaration of Rights of Mother Earth, 2010 recognises the fact that mother earth (nature) is a living being entitled to inherent rights and the rights to exist, regenerate capacity and to maintain its integrity. Human beings are enjoined, through their own cultures, traditions and customs, to respect mother earth.25 Countries are increasingly recognising rights of nature to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.26 The argument is that if un-natural persons such as companies have rights and are recognised in law, so should nature which is considered to be the source of law.

The Resolution relies on the rights accorded to nature to preserve and protect SNST for present and future African generations. This is because the said areas are maintained as a matter of right and not merely as objects of environment management plans.

2.2.3 Customary governance

SNST are preserved and managed according to culture-based systems of governance.27 These are equally termed as customary governance systems. Customs, spiritual practices and taboos regulate the relationship between humans and SNST. These vary from society to society. Customary governance is a decentralised system that allows individual communities to govern their SNST in accordance with their peculiar laws or ways of life. Earth jurisprudence emphasises customary governance. It is the residents and dwellers of these areas that understand the dynamic of nature in these places, the well-being of the flora and fauna, seasons, ecosystems, and processes of the earth.28 Decisions, therefore, are made at the most appropriate level- the lower level.

This input by the Resolution is an avenue for enhancing African cultural renaissance as it allows for exercise of customary law in administering SNST. It is worth noting that customary law is applicable in various jurisdictions of African nations.29 The African Commission has recognised customary law and customary governance systems in various cases. In the Endorois case, it ruled that African states have a duty to sustain African culture by protecting and preserving the art, law, morals, customs, and any other habits of a given community.30

Customary governance, more so in matters of environmental conservation, is bolstered by the Durban Accord and Plan of Action arising from the World Parks Congress in 2003. It called for modification of conservation initiatives by allowing for inclusion of innovative and traditional or customary governance types practised in indigenous communities.31 At a national level, various laws provide for the role of traditional communities in environment conservation and management, however, they do not empower the traditional systems with the power or duty of governing their own sites or resources in accordance with customs.

Custodians of SNST in their report to the African Commission clearly identified that customary governance systems are the bed rock of preservation of SNST and that these systems are directly based on their ancestral law of origin. They, additionally, requested that the systems be recognised and legally protected to allow for continuity. 32

Despite the intention of the Resolution to bring forth exercise of customary law, this body of law has its pitfalls. The law is mostly uncodified and incompatible either directly or by necessary implication with written law.33 The Resolution postulates that these governance systems must be legally protected to alleviate the challenges that customary law faces in application and enforcement today. The implications of this are examined in detail later in the paper.

3.1.1 International Bill of Rights

The International Bill of Rights provides a foundational basis for advocating for protection and preservation of SNST. The instruments within the international bill of rights provide for the freedom of conscience and religion, which allows for freedom to manifest one’s beliefs in teaching, practice, worship and observance either alone or in community with others.35 SNST are places of spiritual significance, akin places of worship or temples, where custodians act as a link between the deity and the communities,36 and this right is adequately protected by the international bill of rights.

The International Bill of Rights, additionally, provides for the right to culture allowing individuals to freely participate in the cultural life of the community.37 Under article 27 of the International Covenant on Civil and Political Rights, 1966 (ICCPR), the instrument goes further to recognise the rights of indigenous people or ethnic minorities to enjoy their own culture and to profess and practise their own religion. The International Covenant on Economic Social and Cultural Rights, 1966 (ICESCR) additionally charges state parties to progressively take steps necessary for conservation, development and diffusion of culture.38 As an African continent, progressive realisation of cultural rights entails entrenching customary governance systems into our laws to allow for adequate protection of these rights.

3.1.2 United Nations Convention on Biological Diversity (1992)

This Convention requires state parties under article 8(j) to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities relevant for the conservation and sustainable use of biological diversity. Additionally, under article 10(c) it enjoins states to protect and encourage customary use of biodiversity in accordance with traditional cultural practices. This is a major aspect that fosters use of traditional mechanism of conservation of environment that are effective and more practical in addressing environmental degradation.

In a May 2010, the secretariat of the UN Convention on Biological Diversity, and the UN Environmental Programme (UNEP) carried out a major assessment of the prevailing state of biodiversity. It was recommended that there is need for urgent action to curb biodiversity loss. The team among its recommendations advocated for protection of SNST highlighting the role played by indigenous and local communities in protecting and preserving areas of crucial biodiversity concentration. 39

3.1.3 United Nations Declaration on the Rights of Indigenous Peoples (2007)

This landmark Declaration recognises the rights of communities to cultural practice, customary governance systems and self-determination. This includes the right to revitalise their culture in accordance with the traditions and customs of the community including their spiritual and religious lives. This can equally be interpreted to advocate for respect for SNST that form part of the cultural sites and spiritual lives of the communities.

There are various other international instruments, resolutions and statements from international institutions as well as reports to the United Nations that speak to protection of cultural heritage and the preservation of the earth and often include preservation of mother earth.40

3.1.4 Sustainable Development Goals

The Resolution is a step towards achieving sustainable development goals by Africa in particular; SDG 9 which attributes great biodiversity loss to industry, innovation and infrastructure activities; SDG 15 on preservation of life on land; as well as SDG 14 on life under water which requires taking a more ecocentric approach that looks at nature as having rights and allows for laws to protect sacred natural sites and territories. Of particular importance, SNST in preserving biodiversity build climate change resilience upon which African nations promote climate action as per SDG 13.41

Many of the international instruments refer to sustainable development but have failed to deliver the required optimum relationship between humans and society or environment that ensures survival of both subjects.42 It is time to rethink the approach and generate a more cross-sector coordination and coherent policy and law.43 Preservation of SNST represents a move from the ‘weak sustainability’ principle to the ‘strong sustainability’ principle.44

3.2.1 African Charter on Human and Peoples’ Rights 1981

The African Charter on Human and Peoples’ Rights (African Charter) in its Preamble reaffirms the commitment to eradicate all forms of colonialism from Africa, and to consider the virtues of African tradition and values of African civilisation to guide its conception of human and peoples’ rights. Furthermore, under article 17, it allows for every individual to freely take part in the cultural life of their community and charges state parties with a duty to promote morals and traditional values recognised by communities.

Articles 22 and 24 are recognised in the resolution on SNST as they provide for the right of all Africans to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. As is the normative text of the African Charter, individuals have duties imposed on them such as the duty to preserve and strengthen positive African cultural values in their relations with other members of the society and to promote the moral well-being of society.45

The African Charter sets up the African Commission46 which is charged with a duty to ensure the protection of human and peoples’ rights under conditions laid down by the Charter.47 The African Commission in exercising its mandate may consider African practices consistent with international norms on human and peoples’ rights plus customs generally accepted as law.48 It is on this basis that in passing the Resolution, the Commission drew upon customary governance systems and the need to promote African culture as a basis for such a method of culture-based conservation.

3.2.2 Charter for African Cultural Renaissance (2006)

This Charter is of particular importance to the preservation of SNST. It affirms that any human community is governed by rules and principles based on culture; and that culture encompasses, lifestyles, ways of living together, value systems, traditions and beliefs.49 It encourages state parties to integrate cultural objectives in development strategies50 and also to assert the dignity of African men and women as well as the popular foundations of their culture.51 The Charter is a regional instrument that acknowledges the importance of culture including spiritual value systems and traditions in promoting African identity and good governance, and the protection of tangible and intangible cultural heritage. 52

This Charter has so far been ratified by only fourteen countries and as such is not yet into force. This may be attributed to the limited popularisation and sensitisation around this charter or the need for support of grass root institutions that can advocate for ratification as opposed to a top-bottom approach where the African bodies call onto states to ratify the Charter.

The Resolution on protection of SNST provides such an approach by encouraging recognition of customary systems of governance at the grassroots as a means of promoting culture-based conservation mechanisms and in the end appreciate the African culture.

3.3.1 Constitutions

Various constitutions of African states provide for rights to a clean and healthy environment, right to culture, freedom of conscience and freedom of religion. It comes against the backdrop of environmental constitutionalism. This entails recognising the environment as a subject for protection in constitutional texts and the same to be enforced as a right in courts of law.54 This provides better consolidation and safeguard for realising the right in question, though it does little to protect SNST. This is because protection of SNST necessitates legal protection that envisages the earth as having her own inherent rights to exist and flourish, and not merely the right to a clean and healthy environment.

The Constitution of Kenya 2010, however, comes out strong on rights of culture and indigenous communities. The Constitution expressly states that culture is the foundation of the nation55 and provides for the right to participate in any culture. 56 It recognises indigenous peoples as part of minority and marginalised communities, acknowledges their cultural norms and supports community self-governance.57 The supreme law further requires government to involve communities in its efforts to conserve and manage lands and ecosystems. It provides for the right to a clean and healthy environment, duties of protecting the environment.58

Though many countries have provisions in their constitution providing for the right to a clean and healthy environment, no country in Africa has a constitution recognising protection of SNST or rights of nature. At the present, the best alternative is, therefore, to look towards the provisions of rights to a clean and healthy environment, right culture and freedom of religion as a basis to encourage states to enact laws to protect SNST.

3.3.2 National legislation

Thera are various SNST all over Africa.59 However, the score card of laws protecting SNST is quite poor. Almost all African countries have national legislation providing for environmental protection and conservation. But these laws fail to provide the required protection to sacred natural sites and do not envisage the principles of earth jurisprudence or customary governance. This is because the laws are bent on how to use the environment for human benefit allowing for supervised destruction (anthropocentric approach) as opposed to an ecocentric approach.60 Control is also centralised in government agencies such as environment agencies.

Other nations have come close by drafting rights of nature clauses in environmental legislation. The principle that nature, having intrinsic value, is worthy of legal consideration and codification. As per this, the SNST are meant to be protected and granted status equivalent to that of human beings which provides better protection.

Uganda is the only country in Africa, which provides for rights of nature in her National Environment Act 2019. Section 4 provides that the nature has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution rights. It allows any individual to enforce such a right and this is a good avenue through which an individual may enforce the duty of the state to make laws that protect and preserve SNST.

In some cases, however, we have nations that have drafted national legislation providing for recognition of SNST. These are the countries embarking on jurisprudential changes. For instance, in Benin, a national Sacred Forest law (Inter-ministerial Order No 121, 2012) provides for the legal recognition of sacred forests and forests of gods and spirits as protected areas.61 The law goes ahead to provide for customary leaders such as kings to govern the preservation of SNST and prohibits activities that affect protected sacred forests. 62

For the case of Uganda, legal recognition and preservation of SNST is an ongoing process through subsidiary legislation (district ordinance) in western Uganda, Buliisa District. The District Council passed a resolution recognising the customary laws of the Bagungu People pertaining to preservation of sacred natural sites; detailing the role of Bagungu custodians and expressly recognising the rights of the SNST to exist and thrive.63 The District Council and the Bagungu Custodian Clans are currently developing an ordinance, which will demonstrate how pluri-legal systems comprising state and customary law can be implemented at district level. 64

4.1.1 Legal pluralism

Legal pluralism is the existence of multiple legal systems within one geographic area or alternatively, when a country has more than one source of law in its legal system.67 Africa is a plural-legal continent.

The Resolution calls for legalising customary governance systems, which rely on customary law. This includes reliance on cultural values, morals and traditions meant to protect SNST. This is because recognition of customary governance systems as part of plural-legal systems takes into consideration the virtues of African historical tradition and the values of African civilization in realising human and peoples’ rights as set out in the African Charter.68

In the report submitted to the African Commission, the communities called for recognition of a priori legal systems to foster renaissance of African identity in the process of development.69 Many African states are today following the legal systems put in place by their colonial masters, that is the civil law system or common law. This is coupled with statutory law formulated by the legislative arms of government.

Reviving customary governance systems raises questions about the nature and status of customary law in relation to statutory law, common law and civil law. In many African jurisdictions, customary law is recognised as law and is applicable in courts of law and other dispute resolution mechanisms.70 The African Commission for instance acknowledges and recognises customary land rights resulting from occupation and use since time immemorial. 71

But these are clothed with the repugnancy clause. A clause that requires that the customs can only be applied if they are consistent with or not contrary to public policy, natural justice, equity and good conscience; and not incompatible either directly or by necessary implication with any written law.72 This reduces customary laws to a lower hierarchy. Indeed, the African Commission’s working group of experts on indigenous populations in their report on their visit to Kenya in 2010 acknowledged that customary laws are often treated as subordinate to a nation’s laws since they are qualified against written laws.

One method to cure this is by making sure the codified laws are in consonance with the Constitution and principal Acts of Parliament by engaging with the law makers to ascertain consistency. Additionally, the Courts must interpret the repugnancy clause in a restrictive manner to allow for the rebirth of the African cultural systems especially in matters of biodiversity preservation.

4.1.2 Conflict of laws

Another substantive hurdle is the conflict of laws, more so in the field of environmental management. Countries have a multitude of laws regulating environment. These for instance set up various management structures such as district committees, local government committees that have mandates like those, which the Resolution grants to customary governance structures. Matters of access to sacred areas are very contentious. A situation such as in the development of the ordinance on SNST in Buliisa district, Uganda, where the district committee on environment and natural resources has the mandate to implement any ordinance yet the Earth jurisprudence which is meant to be entrenched on the ordinance dictates that such mandate should be left to the customary leaders who are the custodians of SNST in this case.73

As a solution, various laws concerning SNST establish bodies that are a hybrid of the customary leadership and a local government leadership to be the governing body. These are usually termed as customary law boards,74 stewardship councils, 75 or guardian bodies. In the event of the SNST of Whanganui River (Te Awa Tupua) in New Zealand, there is established a Guardian body comprised of one iwi representative and one government official to protect the interests of the river.76 It then ceases to be customary governance system largely because of the lack of desire by government to relinquish power over such SNST.

Though this is a fair compromise, it leaves a lot to the political systems which, as observed in the case of Uganda, may fail to appreciate the intrinsic value that society accords to these sites.

4.1.3 Gender considerations

The African Charter is clear on equality of all persons and the need for respect of rights of women77 yet in many cultural settings and customary governance systems, we find that women are not treated equally with men. The question that arises is whether entrenching these customary systems into law will not result into an affront to rights of women.

Preservation of SNST allows for equal treatment of women. Earth Jurisprudence brings in the element of all beings including women, children, youth, vulnerable and local dwellers directly engaging with nature to be considered when undertaking any decision affecting nature. This is because all beings are objects of the law and form part of a complex eco-system that must be duly respected. More so, women in most of the African societies interface with nature more than the men through agriculture. Through this, we can ably state that women become part of the decision makers. Additionally, women are accorded duties strictly performed by them in preservation of SNST such as cleansing the site for rituals,78 and planting seeds.

4.1.4 Dispute resolution

The method of resolving disputes is problematic with many of the potential violators of laws protecting SNST being users of adversarial systems such as courts of law as opposed to the traditional systems of amicable settlement of issues. Under customary systems of governance disputes are usually addressed at the neighbourhood level or at the level of elders,79 whereas in other systems the matter is decided by established courts of law. The question would be whether the codified law on protection of SNS would advocate for adversarial or customary systems of resolving disputes.

The other issue regards penalties for violation of the laws governing SNST. Whereas the customary governance system leans more towards restorative justice for instance rituals to rectify any act of desecration such as animal sacrifice, subjecting offenders to sessions of traditional knowledge imparting, the statutory law, civil or common law looks to custodial sentence or financial penalty. It is argued that customary punishment are too uncertain and cannot be easily codified at the same time the law cannot grant wide discretion to the customary leaders as they may misuse their power.80 However, the customary governance regime argues that the custody or fine does not restore the environment or appease the spirits of the sacred places. Such disparity generates a large impasse that affects effective implementation of the resolution.

4.1.5 The land question

Most of the SNST are housed in areas that are under customary land tenure. Many of the occupants of SNST do not have title to the land since it is used for the benefit of the community. Such land presents many challenges when it comes to enforcement of the right to land especially where outsiders obtain title to land through the land laws of the country. The custodians of SNST and the clans are left without a legally recognised claim to land. Evictions from such land as in the Kenyan Endorois case are always imminent especially where all the land is in the hands of government as is in the United Republic Tanzania or in Suriname (South America).81

But as a means of safeguarding these spaces, the land should be clearly identified as non-transferrable and not to be converted to any other tenure so as to secure it. Certain countries, such as Kenya, provide better safeguards to communally owned land. The 2010 Kenya Constitution provides that ‘all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals’82 and recognises community land and that such land can be held by the community and at the same time be titled/registered.83 This is a more robust safe-guard to traditional communities and nations must provide for similar provisions to allow for security of tenure of land in which SNST are situated.

4.1.6 Enforceability of earth jurisprudence and rights of nature

Aside from the governance system, the philosophy of earth jurisprudence, though potent, has many challenges when it comes to implementation. Much more needs to be done especially the legal intricacies to better breakdown how Earth jurisprudence and rights of nature laws are to be implemented in practice.84 The issue of locus standi in matters of advocating for rights of nature is of great concern, whether the community or management bodies represents the SNST in court. But the said bodies may not be recognised in law. The other is the matter of reparations or compensation for destroying SNST and how they are to be assessed and awarded. Whether the assessment be by the customary governance structures or civil jurisdiction.