National Society for Human Rights (NSHR) deplores the leading role Namibia has played in the deference last week of the adoption of a UN instrument on indigenous minority rights.
On November 28 2006 a group of 30 African States, led by Namibia, succeeded in dealing a lethal blow to the overdue passage by the United Nations General Assembly (UNGA) of the UN Declaration on the Rights of Indigenous Peoples. The Declaration is the result of 24 years of negotiations within the UN system. On June 29 2006 newly formed 47-nation and the Geneva-based Human Rights Council urged UN Member States to adopt the Declaration.
The non-legally binding instrument asserts inter alia that “indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms” as set out in the UN Charter, the Universal Declaration of Human Rights and international human rights law.
The overwhelming majority of Latin American nations, led by Peru, as well as European Union (EU) Member States, spearheaded by Finland, strongly urged the UNGA to adopt the Declaration without further delay. The Declaration also enjoys strong support from indigenous peoples themselves and civil society organizations worldwide.
On November 9 2006 the said African nations listed a total of seven objections affecting the substantive provisions of the Declaration. The nations include the continent’s most ruthless human rights abusers, such as Angola, Eritrea, Mauritania, the Sudan, Swaziland and Zimbabwe. They contended that the Declaration “may be misunderstood as “embracing and promoting the rights of indigenous peoples to self-determination within nation states”. Speaking on behalf of Namibia and 29 other African States, a Namibian representative at the UN argued that some of the provisions of the Declaration “ran counter to the national constitutions of a number of African countries”.
“As a Namibian human rights group, we totally reject this claim at least in so far as the country is concerned. The country’s Constitution, which has been praised worldwide, contains a bill of rights entirely consistent with the Universal Declaration of Human Rights of 1948 as well as the purposes and principles of the UN as contained in the UN Charter. Moreover, this bill, read together with the provisions of Articles 95(d), 96(d) and 144 of the Constitution, clearly shows that the Namibian Constitution is wholly consistent with the norms of international human rights, humanitarian and customary law”, argued NSHR executive director Phil ya Nangoloh.
Namibia’s attitude vis-à-vis the Declaration is compatible with the Government’s de facto policy of ethno-cultural leveling and its superficial approach towards both the Constitution and international human rights treaties and declarations adopted by the UN. Namibian representatives in the various international forums have shown reluctance or indifference towards progressive human rights treaties and declarations aimed at addressing pressing human rights situations worldwide. The country’s track record of voting at the UN and other international human rights forums reveals a pattern of negative behavior towards adoption of, and compliance with, international human rights instruments.
“For example, since becoming a UN Member State in 1990, Namibia has constantly either refrained from voting or has voted against UNGA resolutions on grave human rights situations in such countries as Burma (i.e. Myanmar) and North Korea. Hence, if this pattern of conduct were anything go by, then one should not be should be surprised if Namibia either abstains or votes against a possible UNGA resolution on the serious human rights situation in Darfur”, warned ya Nangoloh.
The said African countries also objected to the fact the Draft Declaration does not define the term “indigenous peoples”, arguing inter alia that the absence of a definition in the text of the declaration “creates legal problems for the implementation of the Declaration” and “tensions amongst ethnic groups and instability within sovereign States”. However, through its travaux préparatoires (i.e. the preparatory work) which are the official records of negotiations and which often clarify the intentions of treaty negotiators, the UN defines “indigenous peoples” as:
“[P]eoples and nations having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories and who consider themselves distinct from other sectors of societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems”.
Hence, although the Declaration does not per se define the term “indigenous peoples”, there is general consensus about who such peoples are ought to be. Moreover, Namibia, having been dependent for centuries on unwritten customary law, African peoples should have been the least and last to complain about the absence of a written definition about whom “indigenous peoples” are and or who they ought to be.
“It is also inconceivable that Namibia, which has benefited enormously from international solidarity against the delaying tactics by apartheid South Africa, is among those frustrating the adoption of the Declaration” ya Nangoloh added.
Furthermore, the territorial integrity of the states should not be maintained via the claw back legal clauses. Rather, territorial integrity, national security and peace and stability are best achieved and maintained through a holistic realization of the principles of democracy, the rule of law and strict observance of the principles of equality and non-discrimination.
In addition, in June 1993 the UN World Conference on Human Rights recognized the “inherent dignity and the unique contribution of indigenous people to the development and plurality of society” and reaffirmed “the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development” The Conference also called upon UN Member States to “take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization”.