The post-World War II surge of international human rights instruments and mechanisms has provided an invaluable opportunity to give voice to the world’s marginalised and oppressed. Of those groups suffering perhaps the greatest levels of victimisation in the narrative of recent global history are indigenous peoples. While slow to respond to demands of representation within the new human rights regime, the international community has shown itself increasingly willing to take up the banner of indigenous rights. The recent United Nations (UN) General Assembly Declaration on the Rights of Indigenous Peoples, adopted in 2007, demonstrates a new commitment to the protection of cultural heterogeneity and traditional knowledge.

The San peoples of Southern Africa are amongst those indigenous groups demanding an adequate and workable balance between greater inclusion and the right to maintain their culturally specific practices. On a continent largely battling to establish and assert its post-colonial identity, the question of indigenous protection has been controversial. This CAI paper examines the status of the San peoples of Southern Africa, with a particular focus on Angola, Botswana, and South Africa. The analysis considers the practical and legislative protections in place, considering the adequacy of current approaches in the face of international commitments. Ultimately, the paper concludes that the on-going exclusion of the San from political life has resulted in an inability of these peoples to advance recognition of other fundamental rights, instead feeding a cycle of isolation and marginalisation. Only with broader political reform and the ability to enforce international commitments will the San peoples be afforded comprehensive protection for their way of life.

The status of the San peoples

In the era of independence and concurrent institution building, the San peoples have found themselves struggling in a battle for recognition and representation. Despite signs of some gains made over recent years, substantial concerns remain that the San face long-term exclusion from political, economic, and social life. These are concerns expressed as a theme through the most recent United States (US) State Department Human Rights Reports, in which the endemic marginalisation of the San is addressed. The report on Angola points to the San peoples’ “very limited participation in political life” as problematic.⁽²⁾ Perhaps more worryingly, the report on Botswana’s human rights record indicates a consistent failure to enforce the country’s anti-discrimination policies with regards to the San (also known as the Basarwa). The report states that “the San remained economically and politically marginalized and generally did not have access to their traditional land. The San continued to be geographically isolated, had limited access to education, lacked adequate political representation, and were not fully aware of their civil rights.”⁽³⁾ The on-going conflict between the Basarwa in Botswana and the administration, particularly with regards to land rights, is something that shall receive further elaboration in this paper. With South Africa representing perhaps the most responsive of countries to the demands of the San, its State Department Report further confirms the almost endemic marginalisation of these indigenous peoples, pointing most particularly to the fact that “by law the San have the same political and economic rights as other citizens; however, the government did not always effectively protect those rights or deliver basic services to the San communities.” Further, “their [the San’s] formal participation in government and the economy was limited due to fewer opportunities, minimal access to education, and relative isolation.”⁽⁴⁾

The failure of governments to meet their obligations to their indigenous inhabitants, particularly with regards to representation, is perhaps the greatest obstacle facing the San. With South Africa hailed as “one of the few countries on the continent that has embarked on ambitious efforts aimed at redressing the problems of its indigenous peoples,”⁽⁵⁾ the continued inability of its institutions to enforce the legislative and constitutional protections in place detracts from the initial positivity with which reforms were met.

Of the three cases outlined above, it is within Botswana that the San’s struggle for representation is the most contentious. The official stance of Botswana’s Government is one of non-recognition; the administration “does not recognize the Basarwa as indigenous peoples on the basis that all ‘Batswana’ are indigenous to Botswana.”⁽⁶⁾ In practice, however, this policy of non-discrimination based on an assertion of cultural homogeneity has failed to procure protection and representation for the San.⁽⁷⁾ The dominance of the Tswana tribes has manifested a situation in which the Basarwa are subordinated and “unhappy with the lack of official recognition of their traditional leaders in the same way that Tswana traditional leaders are recognised.”⁽⁸⁾ The inadequacy of the Basarwa’s current levels of political representation in Botswana has served to perpetuate the cyclical nature of physical and psychological isolation experienced by the group, facilitating a situation in which “the Basarwa consider themselves to be politically, socially and economically marginalised. Indeed, there is evidence to suggest the Basarwa are at the bottom of the economic, political and social strata in Botswana.”⁽⁹⁾ Despite intentions of creating a society premised on principles of de-racialism, the historical disparity of power amongst the various indigenous and non-indigenous groups in Botswana has created a situation in which the Basarwa are facing extensive discrimination. The “thread that runs through the discontent of indigenous peoples is the government policy of underplaying ethnic and cultural diversity under the guise of nation-building. However, underlying this policy is the long-enduring philosophy of Tswana supremacy which resulted from the pre-colonial tribal organisation in which non-Tswana groups were either conquered or attached themselves to militarily and politically-stronger Tswana groups.”⁽¹⁰⁾ Ultimately, therefore, attempts at de-racialisation cannot navigate the terrain of historical inter-tribal power dynamics; the policy has instead resulted in a situation whereby the cultural heterogeneity of Botswana is denied and the Basarwa are marginalised.

Southern Africa’s attempts to address the demands of the San have not, however, been entirely marred by allegations of discriminatory intent or impact. Indeed, South Africa’s “legislative, policy and judicial interventions…are emerging as possible best practices for other countries on the continent to borrow in their bid to address indigenous peoples’ concerns.”⁽¹¹⁾ With the !Xun, Khwe, and Khomani representing the three groups of San people inhabiting South Africa, acknowledgement of cultural diversity has been key to South Africa’s post-apartheid reform. Indeed, “the San are regarded by the state as ‘indigenous people’ who have been marginalised and who deserve special protection.”⁽¹²⁾ A strong legal framework has been put in place for the protection of the San, with the Government also supporting a revival of “traditional leadership and institutions through the Constitution and legislation in a bid to promote self-government.”⁽¹³⁾ Despite these gains, and as previously alluded to, enforcement of protections and guarantees of representation have been a disappointment in practice. Stymied by economic underdevelopment, “indigenous peoples in South Africa continue to lack capacity, partly due to extreme levels of poverty, and a lack of awareness to enforce these rights and provisions for their benefit...” It is also the case that “there has been little if any consultation of these [indigenous] groups on matters of national importance, least those that affect them.”⁽¹⁴⁾

The South African example illustrates the inadequacy of domestic legislative protection without comprehensive enforcement; it is, like much of the struggle characterising the battle for human rights, a failure to meet rhetoric with reality.

Faced with substantial obstacles in achieving redress from domestic sources, the San people remain marginalised through both discriminatory practices and insufficient political enforcement. The following section of the paper shall consider international protections, considering whether the global human rights regime might provide an effective forum through which the San can achieve both representation and protection.

Free and equal?

The decision to adopt the UN Declaration on the Rights of Indigenous Peoples [the Declaration] on 13 September 2007 was a victory for the recognition of indigenous rights. The Declaration, adopted by the General Assembly, asserts that “indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular based on their indigenous origin or identity.”⁽¹⁵⁾ This broad guarantee commits States to the comprehensive protection of indigenous rights in a manner that does not discriminate against indigenous groups. Given the levels of historical marginalisation to which many indigenous groups have been subject, however, the Declaration goes further in recognising the necessity of a balance between protection and independence. Article 5, addressing the issue of representation, asserts that “indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic social and cultural life of the State.”⁽¹⁶⁾ The understanding of indigenous representation as requiring participation to the extent that indigenous peoples wish to have it must be integral to any attempts to legislate on indigenous rights. With the goal of offering indigenous peoples protection for their traditional way of life, representation must be available without being forced.⁽¹⁷⁾ It is undoubtedly, however, of central importance that political recognition and representation are available; without the capacity to have a political voice, indigenous groups such as the San lack the capacity to bring their grievances and opinions before political bodies. It is from the ability to work within the political that the facility to fight for other fundamental rights inevitably springs.

The Declaration also offers specific protections for aspects of life integral to comprehensive recognition of indigenous groups. The issue of land reform and protection of land rights, particularly contentious within Botswana following attempts to forcibly relocate the San away from the Central Kalahari Game Reserve,⁽¹⁸⁾ receives particular focus. Article 26, for example, states that “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”⁽¹⁹⁾ Article 10 is also invoked to specifically outlaw attempts to forcibly relocate indigenous groups from their territories.⁽²⁰⁾ It is vital to understand these protections as part of a broader attempt to develop a capacity for indigenous peoples to retain their history, tradition and culture. Article 11 of the Declaration allows that “indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visuals and performing arts and literature.”⁽²¹⁾ Without specific protections regarding relocation, land rights and political representation – to name but a few – the ability to build and maintain a narrative of culture and tradition is severely hindered. As such, the Declaration outlines narrow provisions on the protection of language, land, and knowledge, with a view to building a picture of multifaceted support for the maintenance of indigenous culture and tradition.

With regards to the situation facing the San people of Southern Africa, and outlined in the above Section, the Declaration goes some way towards offering redress for the marginalisation and oppression suffered to date. Without any capacity for enforcement and lacking the status of a legally binding treaty, however, the Declaration does little more than add bulk to the steady flow of rhetorical support for indigenous rights.

Recommendations for reform

The San are undoubtedly facing a significant uphill struggle in their fight for recognition, representation, and rights. With their countries of habitation still battling with their own questions of identity in the post-colonial era, the question of protection for the San has found itself low on the political agenda. Despite some advance in legislative and judicial interventions on behalf of the San, particularly within South Africa, there remains a significant gap between the rhetoric of Government policy and the reality of poverty, marginalisation, and isolation. As such, it falls to the international and regional communities to take up the banner of indigenous rights and ensure that these groups are afforded a voice. With the international human rights regime making moves on the protection of indigenous groups, there must be a concerted effort towards the creation of a legally binding treaty on the subject of indigenous rights; without such a commitment, documents such as the Declaration garner very little tangible action or reform. The creation of a concurrent international institution to monitor the protection of indigenous groups and administer recommendations to States’ parties would also be a welcome and necessary development.

The nature of the San’s marginalisation, embedded in a history of colonial oppression and power disparity, ensures that adequate protection is unlikely to be gained in any one forum. Rather, a multidimensional approach to indigenous rights, engaging domestic, regional, and international actors and mechanisms, is necessary in working for comprehensive protection of these groups. With indigenous peoples worldwide facing multiple threats to the maintenance of their way of life,⁽²²⁾ the situation is becoming increasingly urgent. Attempts to address the San’s on-going isolation cannot, therefore, come too soon.

Written by Laura Clarke ⁽¹⁾

NOTES:

(1) Contact Laura Clarke through Consultancy Africa Intelligence’s Rights in Focus Unit (rights.focus@consultancyafrica.com).
(2) ‘Country report on human rights practices for 2011 – Angola’, U.S. Department of State, http://www.state.gov.
(3) ‘Country report on human rights practices for 2011 – Botswana’, U.S. Department of State, http://www.state.gov.
(4) ‘Country report on human rights practices for 2011 – South Africa’, U.S. Department of State, http://www.state.gov.
(5) ‘Country report on the constitutional and legislative protection of the rights of indigenous peoples: South Africa’, Report of the International Labour Organisation and the African Commission on human and peoples’ rights, 2009, http://www.chr.up.ac.za.
(6) ‘Country report on the constitutional and legislative protection of the rights of indigenous peoples: Botswana’, Report of the International Labour Organisation and the African Commission on human and peoples’ rights, 2009, http://www.chr.up.ac.za.
(7) It must be noted that the Basarwa reject the failure to distinguish between indigenous and non-indigenous tribes in Botswana. Rather, “the Basarwa regard themselves, as indeed historians suggest, as the earliest inhabitants of large parts of Southern Africa, including the territory that is present day Botswana. Furthermore, they are considered linguistically, culturally and even physically distinct from the rest of the population in Botswana.” in ‘Country report on the constitutional and legislative protection of the rights of indigenous peoples: Botswana’, Report of the International Labour Organisation and the African Commission on human and peoples’ rights, 2009, http://www.chr.up.ac.za.
(8) Ibid.
(9) Ibid.
(10) Ibid.
(11) ‘Country report on the constitutional and legislative protection of the rights of indigenous peoples: South Africa’, Report of the International Labour Organisation and the African Commission on human and peoples’ rights, 2009, http://www.chr.up.ac.za.
(12) Ibid.
(13) Ibid.
(14) Ibid.
(15) ‘United Nations Declaration on the rights of indigenous peoples’, United Nations, 13 September 2007, http://www.un.org.
(16) Ibid.
(17) This balance is further elaborated upon in Article 18 of the Declaration. The Article allows that “indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.” Ibid.
(18) For further information, see Suzman, J., ‘An introduction to the regional assessment of the status of the San in Southern Africa’, April 2001, http://www.lac.org.na.
(19) ‘United Nations Declaration on the rights of indigenous peoples’, United Nations, 13 September 2007, http://www.un.org.
(20) Ibid.
(21) Ibid.
(22) For more information, see Survival International, http://www.survivalinternational.org.