SOME INHERENT LEGAL CONTROVERSIES IN THE CAUSE FOR

INDIGENOUS PEOPLES RIGHTS: The indigenous conception

pitting the West versus Africa.
By Elvis Galabe Ntungwen
This short essay seeks to identify the concept of indigenous peoples (IPs) beyond the traditional
western conception. I do not by any means engage in the debate as to the definition of IPs not
necessarily because of a blank resume but because I share the view that IPs first need to be
properly identified before they can be appropriately defined. Any rush attempt at a definition is
likely to throw into the sidelines of identification a people entitled to IP status. Like Terrorism,
the subject matter can be handled while the parameters of a definition are being explored. The
pattern or trend of the debate conceives the notion of IPs in a pro-western light thereby exposing
non-western IPs to the danger of deprivation of IP status. I now humbly submit my arguments in
the hope that the debate can be expanded and any subsequent definition broadened.
It is true that the colonialists from the west met and conquered or cowed into submission IPs.
Before this time, most non-western societies were scattered indigenous communities. In the west
these communities inhabited a vast expanse of land with a relatively sparse population. Small
wonder that when the colonialists came from Europe, they sought and fought to occupy the
uninhabited remainder which has turned out to be the chunk of the terrain. Both parties eased the
tension over land through amicable accords or treaties the value of which have become
disputable under international law. Progressively, the colonialists settlement and grip to land
rights have been legitimized by the forces of time in like manner as the initial settlers.
On the African continent the scenario is the opposite. The colonialists met a densely populated
continent with little or no extra expanse of land for strangers. Traditional authorities defined and
mapped out their constituencies far beyond the needs of their time with future generations in
mind. Land was something special, almost everything! When the colonialist came, they had no
land to negotiate or to occupy and colonization in this part of the world took the form of what is
referred to as civilization. The colonialist imposed often with the collaboration of the
indigenous populations a European culture that reflected an identifiable European uniqueness.
Unlike the IPs of the west, indigenous systems were eroded and the indigenous personality
disappeared with that tidal wave. The scattered nature of these communities made it difficult for
the civilizing missionaries to spread into every nook and cranny of inhabited areas. The
colonial masters unavoidably left the continent with a partly fulfilled mission. Those areas that
never had a romance with western culture remained as indigenous as western culture had met
them. Same goes for those areas which had the opportunity to compare and to prefer their system
and values to the alien ways from the west. When power was handed to the so-called modern
elite, the legacy of colonialism refused to quit and symbolically had a stranglehold on the
continent in the principle of uti possidetis a slice and dice arbitrary formula of land
apportionment that only reflected the Will of Europe.

The problems created by the colonial legacy on African indigenous identity are manifold: first, it
erased indigenous populations and disregarded prior existing land boundaries. The colonialists
who moved westward left home for good, formed new states and now cohabit alongside their
indigenous hosts. IPs in this part of the world (e.g Americas) can therefore be identified as those
that the colonialists met. On the other hand, the colonialists who moved southwards could barely
cohabit and sought to transform IPs. IPs in this part of the world can be identified as those that
the colonialists left. At the time when the colonialists left for home, there was a struggle in Africa
a struggle between the modern and the traditional elite. The modern elite (i.e the pro-colonialist
elite during colonization) inherited the colonial apparatus and immediately recognized the
sidelined anti-colonialist traditional elite. A new-found consensus developed and the modern
state was born in which the traditional elite and his people take an active part.
On the other hand, the modern African state was no more successful in extending its influence to
every territorial enclave than the colonial masters. A new indigenous structure developed from
colonization. Most indigenous societies had been transformed and were now part of the neocolonial static structure. However, communities still abound where the colonial or the modern
state have not and do not have any impact. Their rights to land are not embedded within the uti
possidetis restructuring of the continent and predate the new dispensation. This view is reflected
in the contemporary customary legal position as advocated by such distinguished scholars as
Professors Siegfried Wiessner and James Anaya who identify a sacred relationship between IPs
and their land. There is breeding tension between pre-colonial and post-colonial land rights.
Unlike their counterparts in the west who can cling to pre-negotiated treaties for their survival,
IPs in Africa have nothing that safeguards their prior land rights and can only count on the mercy
of the uti possidetis (if any). They cling onto this venomous snake as they drown steadily into an
endless ocean of cultural oblivion. When land rights are inexistent, indigenous identity is at the
brink of loss and when land is lost, indigenous identity goes with it.
Generally, IPs all over the world share a common threat of acculturation and a common destiny
of re-identification. Westernization has produced inequality at the international level. A United
Nations in the 18th century would have been dominated by indigenous nations who now lack
representation in the modern community of nations. Clamoring for the rights of IPs carries with
it the dangers of cultural pollution. This is likely the outcome of the legal interaction between IPs
and pro-western global institutions or as a result of the encroachment upon indigenous values by
the forces of globalization. There is a tendency to harm in every effort to assist or protect as long
as indigenous socio-legal resources remain deficient in advancing their causes and claims
(education, military, economic etc)