Human dignity has long been a subject of great interest in various disciplines. It is widely considered the foundation of modern international law.
This explains why the United Nations Charter reaffirms the indispensability of respecting “the dignity of the human person” as a precondition to saving “succeeding generations the scourge of war, which… has brought untold sorrow to mankind.”
Similarly, the Universal Declaration of Human Rights (UDHR), considered the most influential normative document in the world, confirms that all human beings are born free and equal in dignity and that recognition of dignity is the foundation of freedom, justice, and peace.
The inclusion of respect for human dignity in constitutions of countries from civil and common law traditions, accompanied by robust court jurisprudence generated by courts of records, is a testament to the UDHR’s unparalleled normative influence and inspiration.
For example, Article 9(f) of the Constitution of the United Republic of Tanzania of 1977, as amended occasionally, obliges the state to ensure that “human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights.”
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Broadly, dignity entails respecting the inherent worth of every member of the human family and calls for treating everyone equally, irrespective of race, sex, language, political or other opinion, national or social origin, property, birth, or other status.
Stock-taking exercise
However, as the world celebrates the International Day of Forests and the International Day for the Elimination of Racial Discrimination, it is important to reflect on the perceived universality of human dignity, including the protection of equality and non-discrimination in the context of establishment and management of forests and other protected areas in Africa.
Three reasons justify the urgency of this stock-taking exercise. First, it aligns with the timeless advice of the Greek philosopher Socrates: “The unexamined life is not worth living.”
Secondly, while human dignity is firmly grounded in authoritative international instruments and is currently inscribed in almost all national constitutions, protected areas legislation and their implementation underscore a growing body of evidence contending that lives of marginalised communities self-identifying as indigenous peoples all over the world are not valued the same way as the lives of mainstream communities concerning conservation, and this contravenes the assumed universality of human dignity.
Thirdly, the present reflection is crucial in today’s revitalised concerns globally about conservation and Indigenous peoples’ rights. The heightened concerns result from, among other things, a report submitted to the UN General Assembly, a body comprising heads of state and governments by the UN Special Rapporteur on the Rights of Indigenous Peoples, Jose Francisco Carlí Tzay, on July 19, 2022.
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Titled ‘Protected Areas and Indigenous Peoples’ Rights: Obligations of States and International Organizations,’ the report followed that by Mr Carlí Tzay’s predecessor, Victoria Tauli-Corpuz, titled ‘Conservation and Indigenous Peoples’ Rights’ dated July 29, 2016.
The 2016 report brings to the attention of heads of state and governments under paragraph 51, “large scale violations of the rights of indigenous peoples in the context of conservation measures”, resulting from forceful evictions from their lands.
It lists the impacts of the forceful evictions to include “marginalisation, poverty, loss of livelihoods, food insecurity, extrajudicial killings, and disrupted links with spiritual sites and access to justice and remedy.”
Unfortunately, these impacts disproportionally target communities on the margin, those self-identifying as indigenous peoples, hence calling to question and casting doubts on the perceived universality of human dignity, including protection of equality and non-discrimination.
Custodians of biodiversity
Paradoxically, as authors Marjo Lindroth and Heidi Sinevaara-Niskanen confirm, there is an overwhelming consensus globally that indigenous peoples play pivotal roles as custodians of global biodiversity. Hence, leaving them to steward their lands makes ecological sense rather than forcefully evicting them from it.
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Building on the situation above, the current mandate holder UN Special Rapporteur Jose Francisco Carlí Tzay, while agreeing with the findings of his predecessor, adds under paragraph 18 of his 2022 report that “such violations have had particularly negative impacts on women and girls, who are primarily responsible for gathering food, fuel, water and medicine and are therefore exposed to risks of sexual violence at the hands of militarised security forces, park rangers and law enforcement.”
He advances seven recommendations under paragraph 70 (a) to (g) for consideration by States. They include “applying a strict rights-based approach to creating or expanding existing protected areas.” How can this be done in practice? I offer some suggestions in the paragraphs that follow.
Framework environmental protection legislation in most African countries contains key provisions on “principles of environmental management” to guide implementing and interpreting the laws in question. These provisions also mandate that the principles strictly guide anyone implementing the laws.
For example, South Africa’s National Environment Management Act 1998 states in section 2(2) that “environmental management must place people and their needs at the forefront of its concern and serve their physical, psychological, developmental, cultural, and social interests equitably.”
In contrast, laws governing protected areas do not have similar “guiding principles,” including a commitment to respecting human dignity. This finding is based on a comprehensive review of legislation for protected areas in six selected Southern and Eastern African countries.
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The six countries this author studied are Botswana, Namibia, and South Africa for Southern Africa and Tanzania, Kenya, and Uganda for Eastern Africa.
Since most of these countries’ laws are available in English, the linguistic criterion is that the selection of the six countries is attributable to their being in the international limelight for allegations of indigenous peoples’ rights violations in conservation.
For example, the UN Special Rapporteur’s report indicates that most of these countries are “among the African countries in which large parts of the protected areas are located on the indigenous people’s ancestral domains.”
Human dignity
The choice of ‘human dignity’ as a reference framework underscores its foundational and all-encompassing usage under international human rights law, including equality and non-discrimination.
The choice is also premised on key findings of the two UN Special Rapporteurs’ reports and numerous literature, which show that violation of human rights in the context of protected areas disproportionately targets indigenous peoples, hence implicating the perceived universality of human dignity as a foundation for equality and non-discrimination.
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A key finding of the study is that, unlike framework environmental legislation, most protected areas laws are human-dignity blind. The spirit of the laws in question is still largely the relics of the countries’ colonial past. Consequently, the laws replicate the “Yosemite Model” of fortress conservation as evidenced by recurring forceful evictions of stewards of the lands.
Prof Esme Murdock describes the “Yosemite Model” that it aims to foster “incredible violence, hardship and harm not only through the loss of land through dispossession but also through the interruption of indigenous lifeways that are tied to the lands themselves.”
Accordingly, to implement the UN Special Rapporteurs’ recommendation mentioned above, here is a practical starting point: enshrining laws in all protected areas in Africa, reference to human dignity as an interpretive principle. A leaf can be borrowed from framework environmental laws in this case.
A model provision, to paraphrase section 7(3) of Tanzania’s Environmental Management Act of 2004, would read like this, “in achieving the objectives of this Act, every person exercising powers under this Act shall observe the principle that everyone is entitled to respect for human dignity, including non-discrimination and equality, irrespective of one’s race, sex, language, political or other opinion, national or social origin, property, birth, or other status.”
Elifuraha Laltaika is a visiting professor at the Peter Allard School of Law, University of British Columbia, Canada, and a former UN Permanent Forum on Indigenous Issues member. He can be reached at Elifuraha.laltaika@ubc.ca. The opinions expressed here are the writer’s own and do not necessarily reflect those of The Chanzo. If you are interested in publishing in this space, please contact our editors at editor@thechanzo.com.
