THE DEMOCRATIC REPUBLIC OF CONGO

387 THE DEMOCRATIC REPUBLIC OF CONGO The concept of “indigenous peoples” is accepted and endorsed by the government and civil society organisations i...
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THE DEMOCRATIC REPUBLIC OF CONGO The concept of “indigenous peoples” is accepted and endorsed by the government and civil society organisations in the Democratic Republic of Congo (DRC). The term indigenous peoples in the DRC refers to the Mbuti, Baka and Batwa peoples who consider their generic appellation of “pygmies” as derogative and discriminatory. The exact number of indigenous peoples in the DRC remains unknown. The government estimates that there are around 600,000 (1% of the Congolese population), while civil society organisations argue that there are up to 2,000,000 (3% of the population). They live in nomadic and semi-nomadic groups in almost all the country’s provinces. The life of indigenous peoples in the DRC is closely linked to the forest and its resources: they live from hunting, gathering, collecting and fishing and they treat their illnesses with the help of their pharmacopoeia and medicinal plants. The forest forms the heart of their culture and their living environment. The situation of the indigenous peoples in the DRC continues to be of concern. Their ancestral lands and natural resources are facing increasing external pressure; they are being forced to relinquish their traditional economy and live on the margins of society in extreme poverty. Indigenous peoples in the DRC are not represented in decision-making at all levels and their access to basic services, including health and education, remains below the national average. Unless their rights, as guaranteed under international standards, are duly protected, indigenous peoples’ living space will shrink yet further, depriving them of the resources on which they depend for their survival and resulting in the disappearance of their culture and their traditional knowledge. There is no law or policy for the promotion and protection of indigenous peoples’ rights in the DRC. However, a draft law on the rights of indigenous peoples was recently developed by civil society organisations, in collaboration with parliamentarians. The DRC endorsed the UN Declaration on the Rights of Indigenous Peoples and its climate change-related programmes refer to indigenous peoples’ rights.

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Positive trends in relation to indigenous peoples in the DRC International Festival of Indigenous Peoples ndigenous peoples’ organisations in the DRC, led by the Dynamique des Groupes des Peuples Autochtones (DGPA) in collaboration with the Congolese government, successfully organised the second International Festival of Indigenous Peoples in Kinshasa from 27-29 March 2015. This international gathering brought together hundreds of indigenous participants from Asia, Latin America, Europe and across Africa to share their experiences and celebrate indigenous cultures, arts and traditional knowledge. On this occasion, indigenous peoples’ groups from various regions took to the stage to showcase their cultures, dances and traditions. The Congolese state participated actively in the festival, through parliamentarians and numerous ministries, including those in charge of environment and sustainable development, social affairs, lands and foreign affairs. The occasion also enabled Congolese indigenous peoples to voice their concerns to the government and other state institutions with regard to their landlessness and lack of access to basic services, justice, health facilities and education for their children. Indigenous international participants shared their own experiences and good practices, including key legal and policy reforms as well as national programmes developed to address the specific situations of indigenous peoples in their respective countries. The key recommendations to the DRC that emerged from this second edition of the Festival included the adoption of a law on indigenous peoples’ rights, ratification of ILO Convention No. 169 on indigenous peoples and national programmes aimed at addressing the key socio-economic challenges faced by indigenous communities, notably in education, access to health facilities, land ownership and effective participation in decision-making.1

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Draft law on indigenous peoples A process of drafting a specific law on indigenous peoples’ rights in the DRC has been ongoing for over three years. This process is being led by an indigenous peoples’ umbrella organisation, DGPA, and a coalition of parliamentarians interested in indigenous peoples’ issues. Following its formal submission to Parliament in July 2014, the draft law was for the first time put on the parliamentary

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agenda in June 2015 but it is yet to be debated and, eventually, adopted. Numerous key political leaders, including government ministers, have thrown their support behind the draft law.

DRC Report to the Universal Periodic Review (UPR) The latest report of the DRC to the UPR led to several recommendations, including the need for the country to continue and complete the process of adopting a specific law on indigenous peoples, as well as ensure compliance with the United Nations Declaration on the Rights of Indigenous Peoples on the part of the Congolese REDD+ and climate change-related programmes. The representatives of

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the DRC accepted all the recommendations on indigenous peoples and indicated that many of them were already being implemented.2

Persistent discrimination and human rights violations Continued killing of Batwa in Katanga Province The human rights situation of indigenous peoples in the DRC continues to feature serious human rights violations, extreme discrimination and lack of access to justice. This is illustrated by the situation of Batwa indigenous peoples living in Katanga Province, where local militia groups are particularly targeting them. As reported by Human Rights Watch, in one incident, over 30 Batwa women, men and children were killed by local militia in April 20153 and thousands of Batwa peoples have been displaced following several waves of killings and burning of their villages. National and international human rights organisations continue to call upon the government and United Nations mission in the Congo to pay particular attention to Batwa indigenous peoples as they are an especially vulnerable social group in a conflict situation. There are numerous underlying causes to the targeting of the Batwa, including competition for lands, structural discrimination against them and negative cultural beliefs. Human Rights Watch indicates that “tensions between Batwa and Luba in Katanga erupted … after Batwa started demanding respect for their basic rights, including access to land and an end to alleged forced labor or a form of slavery”.4

Stagnant implementation of the law on community forests The implementation of community forests in the DRC is a 14-year-long delayed action. The community forest mechanism is key to securing indigenous peoples’ rights to lands and natural resources because almost all Congolese indigenous peoples live in the forests. It was, indeed, instituted by the 2002 Congolese Forest Law, which required the government to pass two key enabling legislative texts, notably a Prime Ministerial Decree on the allocation of community forest and a ministerial decision on community forest management. The Prime Ministerial Decree on community forests was finally adopted by the Government of the DRC in August 2014, following a drafting process that lasted more than four years. And, in February 2015 the ministerial decision on

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implementing community forests was finally passed. However, in September 2015, the Congolese Minister in charge of forest issues signed Decision No. 050 instituting forest concessions for local governments or decentralised entities, a category of forest titles not provided for by the 2002 Forest Code. Indigenous peoples’ organisations, the wider Congolese civil society and several international organisations have formally questioned the legality of this new ministerial decision and are currently considering its judicial review.5 Many see in this latest ministerial decision an attempt by the government to deviate from the 2002 Forest Law’s intention to ensure indigenous peoples and local communities enjoy enhanced rights over their forests.

Delayed and denied justice over land rights Several indigenous peoples’ communities in the DRC have continued to experience delayed and denied justice over their rights to lands and natural resources. In most cases, indigenous peoples’ claims to their ancestral lands are obstructed by old Congolese land laws that consider the state to be the sole owner of all lands, minerals and natural resources. And yet other non-indigenous communities continue to enjoy customary rights over their traditional territories. The Batwa indigenous peoples of the Kahuzi-Biega National Park are an illustration of this denied and delayed justice over traditional lands. After decades of living as displaced people, following their expulsion from their traditional lands in the 1970s, the Batwa of Kahuzi-Biega decided to seek justice through the domestic courts, the first decision of which, taken in 2011, was unfortunately unfavourable to them. The Batwa then lodged an appeal but once more did not obtain justice through the Appeal Court’s decision of December 2013. Following this decision, the Batwa of Kahuzi-Biega decided to go to the Supreme Court but, as of the end of 2015, they have not even had the first hearing of their case. Many legal analysts foresee that the case is likely to take many more years before it is decided upon by the Supreme Court, which in the end might not even decide on the case’s merits.6 The Batwa of Kahuzi-Biega are now considering the option of taking their case to the African Commission on Human and Peoples’ Rights.7 

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Notes and references 1

See the final report of the Festival on the website of Moabi http://rdc.moabi.org/rapport-du-festival-international-des-peuples-autochtones-fipa-2015/fr/#6/-1.121/23.258&layers=moabi_ intactforests,moabi_indigenous 2 Human Rights Council, 2015, DR Congo: Ethnic militias attack civilians in Katanga: Dozens of ‘pygmy’ killed in camp following deadly raids on Luba, see documents on DR Congo at http://www.ohchr.org/EN/HRBodies/UPR/Pages/CDSession19.aspx 3 See Human Rights Watch report at https://www.hrw.org/news/2015/08/11/dr-congo-ethnic-militias-attack-civilians-katanga 4 Ibid 5 See a joint petition-letter written by a coalition of national and international non-governmental organisations questioning Congolese Ministerial Decision 050 on community forests http://loggingoff.info/sites/loggingoff.info/files/NGO%20letter%20on%20DRC%20Arrete%20 050_5.10.15_final.pdf 6 Forest Peoples Programme, 2008, Land rights and the forest peoples of Africa: Historical, legal and anthropological perspectives, see at http://www.rightsandresources.org/documents/files/ doc_1203.pdf 7 Minority Rights International (MRG) is working with the Batwa on the alternative of taking their case to the African Commission on Human and Peoples’ Rights. See latest report on MRG field visit to Kahuzi-Biega at http://www.minorityvoices.org/news.php/en/1827/drc-mrgs-head-of-law-visits-batwa-communities

Dr. Albert K Barume is an African-trained lawyer with a Ph.D. in international human rights law from the University of Essex in the United Kingdom. He also holds a Master’s degree in Environmental Management from Yale University in the USA. Dr. Barume has worked on the issues of indigenous peoples’ rights and the environment in Africa for over 20 years, including as a Geneva-based Senior Specialist on indigenous peoples at the International Labour Organization (ILO) for five years. He has been an Expert Member of the African Commission on Human and Peoples’ Rights’ Working Group on Indigenous Peoples. He is also the current Africa representative at the United Nations Experts Mechanism on the Rights of Indigenous Peoples (EMRIP), a sub-organ of the Geneva-based United Nations Human Rights Council and whose thematic study for 2016 is on the right to health of indigenous peoples. Dr. Barume has written and published books and articles on indigenous peoples’ rights.