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African Constitutions Push to Recognize Group Rights.

In Africa, recent constitutions have included provisions to protect group rights. Supporters say the move helps promote national unity by bringing formally disenfranchised groups into national politics.

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William Eagle

Most African countries have a number of religious, linguistic and ethnic groups – and many of those say their concerns are not taken into account by those in power. Some recent constitutions have provisions to encourage nation-building, including measures to guarantee the voices of alienated or disenfranchised groups are heard.

The move toward greater inclusivity can be seen in constitutional support for group rights.

Winluck Wahiu is the project manager at the Constitution-Building Processes Program at the Stockholm-based International Institute for Democracy and Electoral Assistance, or International IDEA.

He said the constitutions of South Africa, Uganda and Ethiopia offer provisions that protect group rights.

Ethiopia recognizes the territories of many ethnic groups, and says citizenship is defined by belonging to one of them. Uganda and Ghana acknowledge the cultural autonomy of traditional kingdoms, and South Africa names 11 national languages to be included in all government transactions.  In Nigeria, the constitution requires that the country’s ethnic composition be reflected in political parties, universities and the military.

On the political periphery

Wahiu said Kenya’s 2010 constitution recognizes the rights of what it calls “marginalized” peoples, including nomadic pastoralists like the Turkana and the Masai.

"Which is to say the Masai have the first claim on taxes that are paid by tourists who go to the world famous Masai Mara [game and wildlife reserve]," he explained. These are recognized as rights only the Masai have, because they are the ones that traditionally have a claim on the land and they are the ones who have been marginalized by the state in terms of development philosophy since independence which focused resources in the capital."

Kenya's 2010 constitution recognized the rights of marginalized groups such as Masai pastoralists that live along the border.
Kenya's 2010 constitution recognized the rights of marginalized groups such as Masai pastoralists that live along the border.

Also among the marginalized groups recognized by the Kenya constitution are ethnic Somalis. They, like the Masai, straddle several borders in the Horn of Africa.

"Don’t forget that in Kenya at least since 1967, the northern part where you have Somalis has been put under emergency law," he said.

"It’s been governed through martial law which started when the Somali communities there sought succession through violence in order to join Somalia.  And so this is the first time we are waiving martial law and recognizing them as citizens of the country and allowing them to move and settle anywhere else in the country -- not just saying they have to be contained in that part of Kenya.

"[Also] you’ve got groups that have settled in Kenya from South Sudan," he continued, "but the country has never recognized their citizenship since 1963…so under the new constitutional dispensation, they are now allowed to apply for  citizenship, which is to say that their status as citizens who have settled in the country is going to be regularized."

Individual vs. group rights

In other African states,  citizenship is extended to all people living within the territory, but without an emphasis on group rights.

This is the case in Mali, where the last constitution before the military coup in March emphasized individual rights, with little recognition of economic or social differences in the country’s various administrative units.  The constitution’s philosophy is summed up in its motto,  “one people, one purpose, one faith.”

Wahiu said in practice, the approach tends to favor educated citizens near the capital, but ignores the needs of traditionally disadvantaged rural groups, including the Tuareg of the north-central Sahel region  They’ve often lacked the political power to get state support for affirmative action, the distribution of tax benefits or recruitment into the civil service and army.

"The Tuareg felt the very definition of Malians as citizens ignored the factor of social inequality and second class citizenship status of the groups in the north," said Wahiu.

In recent weeks, Tuareg rebels have widened their control over northern Mali. In the capital, the military overthrew the elected government and suspended the constitution.
In recent weeks, Tuareg rebels have widened their control over northern Mali. In the capital, the military overthrew the elected government and suspended the constitution.

"Now, this is something that is repeated all over Africa where groups claim that using language which is neutral --  that everyone is a citizen -- belies the fact that some groups have been disadvantaged for quite some time and that you need to recognize them specifically so they can claim special remedies.

"They want measures," he said, "like affirmative action, positive discrimination, claims on national resources that come to them directly so that their position can be improved, their welfare can be improved, to be economically brought up to par with the rest of the community."

Burundi and Rwanda: similar problem, different solution

Group rights, at least among ethnic groups,  are also not emphasized in Rwanda, where divisions between Hutu and Tutsi led to civil war and genocide in 1994.  The country’s constitution does not recognize ethnic or linguistic differences. It instead calls for the eradication of ethnic divisions and the promotion of national unity.

Rainer Grote is a senior research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and an adjunct professor of law at the University of Gottingen, Germany.

He said Rwanda’s approach to national unity and group rights is the the opposite of neighboring Burundi, where the constitution guarantees that state structures and organs include members of the main ethnic groups.

"The first [approach followed by Rwanda]," he explains, "says ethnicity is a divisive issue that should be banned from national politics including constitutional politics, so no mention should made to it in the constitution at all.'

"The other approach adopted in Burundi is that ignoring these kinds of dividing lines within the political community does not help and that it’s necessary to create confidence, an atmosphere of trust where you acknowledge these existing divisions. You reflect them within the supreme bodies of the state by reserving a quorum of seats for each major group of the population, by providing for a collective presidency in which all major groups shall be represented and so on."

Backlash

Sometimes, recognition of group rights can lead to a backlash. Wahiu said it may occur when the drive for greater rights involves widely dispersed ethnic groups with separatist elements.

"These ethnic groups that straddle borders," he said, "have always been seen suspiciously by the mainstream groups within these countries as people who want to dismember the country -- and there is resistance toward territorial autonomy schemes.  [Some believe] by holding claims for example of the Somalis to govern themselves in those areas you are giving them an impetus to start demanding secession – to form their own greater Somalia."

Wahiu says granting more local sovereignty can also create conflict with the national government.

For example, he said the Masai in Kenya would rather use fees from tourist areas to strengthen their cultural way of life, rather than to comply with central governmental directives that may undermine it.  In Kenya, this includes mandatory universal access to primary education.

"They put the money into land-buying schemes," he said, "so they can have more land to graze their cattle as they move up and down which means they are buying land from the neighboring communities.  Much of this land used to belong to them in the first place, it was just alienated in the 1960s and converted into settled agricultural land.  As people move from the rural countryside to the cities, the Masai are finding there’s an opportunity to buy these lands."

Other countries, like Zambia and Ivory Coast do not recognize groups who moved there decades ago as migrant workers. There, citizenship is tied to landowners who can trace their claims to pre-colonial times. Botswana does not recognize the rights of indigenous Bushmen or their claims to lands.

Wahiu said countries need to address such group tensions with national legal and political institutions. He said solutions to the problem are often not possible when a constitution says such claims can’t exist in part because all citizens are already nominally equal.

That approach can be dangerous, he warned, and can lead to war or some other form of rupture in society that can set back a country’s overall economic development.

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