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New indigenous peoples’ rights law in Republic of Congo

16 March 2011: New indigenous peoples’ rights law in Republic of Congo – a step in the right direction
The Rainforest Foundation UK (RFUK) welcomes the signing of a new national law on the rights of indigenous peoples by the President of the Republic of Congo, Denis Sassou Nguesso as the first step to ensuring greater legal protection for some of the most marginalized groups in Congolese society. The law was approved in Parliament in December 2010, and passed into law on 25th February 2011. The country is one of only two African countries legally recognizing indigenous peoples’ rights.

“The passage of this law is a huge step forward for the protection of the most vulnerable and marginalized communities in Congo, as well as for indigenous peoples’ rights in Africa,” said Francesca Thornberry, The Rainforest Foundation UK Programmes Manager.

The Rainforest Foundation UK has worked with its partner organization, the Observatoire Congolais des Droits de l’Homme (Congolese Human Rights Observatory) since 2004 to support this process from the outset through supporting research, training and civil society/indigenous participation in the drafting of the law and will continue to work with local partners to ensure its implementation.

“Although some compromises have been made, this law nevertheless represents among the first comprehensive national legal effort to address indigenous peoples’ rights in Africa – along with the ratification of ILO Convention No. 169 by neighbouring Central African Republic.”

“What remains to be seen is how it will be implemented, and whether indigenous peoples will be involved adequately in this process.” Francesca Thornberry, The Rainforest Foundation UK Programmes Manager, added.

Indigenous peoples in the Republic of Congo are the so-called “Pygmy” peoples, belonging to a number of different groups (Babongo, Baaka and others), present in all the regions of the country. They face severe discrimination and marginalisation, and many are held in conditions of forced labour and slavery despite national laws against such practices. They have relentless problems in accessing land and resources for their subsistence, and are not included in decision making on matters that affect them.

The Rainforest Foundation UK hopes that the new law, which covers a wide range of indigenous peoples’ rights, from land and resources, to education, to cultural and economic rights, will result in tangible, positive impacts on the situation of these groups. Possibly most important in this law, is that it contains several cross-cutting articles aimed at ensuring adequate consultation of indigenous peoples in decision making.

The passage of the law is a step forward whose significance cannot be underestimated. The concept of indigenous peoples in Africa in general has been the subject of controversy in the past, with many governments taking the position that all Africans are indigenous.

Two countries in Africa (Republic of Congo and the Central African Republic) in Africa have now adopted legislation that is specifically aimed at protecting indigenous peoples’ rights. In both countries, the question of who is indigenous for the purposes of the law has not been the subject of a protracted discussion and has been relatively clear all along – something which we hope can send a positive signal to other African governments to follow suit and adopt laws to protect indigenous peoples within their own boundaries.

The law is not perfect. Indeed, some significant clauses from previous drafts of the law have been changed or removed. For example, one article on ensuring indigenous representativity in decision making at all levels from national to local level has been removed. This would have been key to ensuring more equality of indigenous peoples in national and local decision making, which at present they are completely excluded from.

Another key clause that has been removed concerns the provision of judicial assistance to indigenous people. Given their severe levels of poverty, it is highly unlikely that they would be able to pursue any form of legal action, or indeed obtain legal representation if accused, without such a form of assistance.

However, what is key, and what the Rainforest Foundation UK and its national partner organisations in Congo will focus on is ensuring that this law is now put into practice. A number of articles in the law require further legislation to be developed so they can be properly implemented. This includes fundamental provisions on consultation of indigenous peoples. It is of utmost importance that indigenous peoples are able to participate in this process of implementation.

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