Jérémie Gilbert

LITIGATING INDIGENOUS PEOPLES’ RIGHTS IN AFRICA: POTENTIALS, CHALLENGES AND LIMITATIONS

Adopting a comparative analysis, this article examines some of the recent cases of litigation which have focused on indigenous peoples’ rights across the African continent. The aim is to explore the potentials but also the challenges and limitations of litigation as a tool for supporting the rights of indigenous peoples in Africa. The article explores to what extent an African jurisprudence is emerging from these cases on issues that are essential to indigenous peoples such as non-discrimination, self-identification, land rights and development. It also focuses on the practical issues that arise with engaging with litigation to explore to what extent it could contribute to the legal empowerment of some of the most marginalised communities in Africa.

Litigating indigenous peoples’ cultural rights: Comparative analysis of Kenya and Uganda

ABSTRACT Across Africa, indigenous peoples have increasingly approached courts for legal redress for violations of their rights. Many indigenous peoples have turned to litigation to reclaim their rights over their ancestral territories and protection of their cultural identity and heritage. Significantly, these claims have been legally articulated as cultural rights since land rights are connected with their right to culture, spirituality and cultural survival. In examining the situation in Kenya and Uganda, this article analyses how the framing of these claims under the banner of indigenous peoples’ rights to culture could provide some of the most marginalised communities with new legal avenues to challenge the dominant cultural and developmental agenda imposed by states’ authorities. In doing so, the article explores how litigation and the use of international norms can contribute to new interpretations of constitutional norms, allowing for a more encompassing interpretation of cultural rights which includes a customary cultural system of land usage. The article argues that the recognised right to cultural integrity for indigenous peoples could offer a relevant legal approach not only in Kenya and Uganda but also for the whole continent.