Land Rights and the Forest Peoples of Africa

Land rights and the forest peoples of Africa – Part II
Another important consequence of the Berlin Conference came through the move towards a
process of formal colonisation. While colonial powers had for centuries been colonising the
continent in piecemeal fashion, it is only in the last part of the 19th century that a formal
process of colonisation was put in place, due largely to increased competition between the
colonial powers. Colonial powers had traditionally exercised absolute control over costal
regions and ports to guarantee commerce, while for the interior of the continent the legacy
was based on protectorate or jurisdictional capitulations. But following increased competition
and the reference to ‘effective occupation’, colonial powers increasingly moved to a more
formal process of colonisation. One of the consequences of such formalisation was the
establishment of boundaries throughout the continent. Colonisation played a huge role in the
development of the present borders in Africa, as boundaries were mainly drawn by competing
colonial powers. Before the arrival of the European colonisers, the social and ethnic
structures throughout the African continent had some territorial basis, but there was no
concept of frontiers in the European sense. 23 The drawing of the boundaries by the colonisers
was mostly based on the logic of regulating ‘spheres of influence’ between the different
colonial powers. The establishment of such borders had some direct implications for
indigenous communities that were suddenly submitted to different rules depending on where
the borders were drawn. In terms of land rights, it meant the application of different regimes
by different states. International law played a crucial role in the period of transition to
independence, as under the rules of international law states had to maintain these fictive
borders. The rule governing such transition came through recycling the Roman law principle
of uti possidetis juris (continue to rule that which you possess), which in practical terms
entailed African states maintaining existing borders. In 1964 the Organisation of African
Unity passed a resolution stating that the principle of stability of borders – the key principle
of uti possidetis – would apply throughout Africa. For several indigenous communities
divided across borders, such adoption of the principle of uti possidetis meant that the legal
regime applicable to their rights to land was going to be different depending on which side of
the border they were. As highlighted in a recent report by the Commission for Africa:
the demarcation of new colonial boundaries disrupted many existing clan, ethnic and
religious boundaries. Land ownership was caught between customary and new statutory
legal systems. The new systems were more often than not designed with a colonial wish
in mind to ‘divide and rule’ local communities. This created both artificial divisions and
new hierarchies within groups and sowed seeds for conflicts after the colonial leaders
departed. The consequences of some of these divisions are very much alive today … 24
23
Romain Yakemtchouk (1970) ‘Les Frontières Africaines’ in Revue Générale de Droit International Public,
Vol. 74, p 27; see also Marc Ferro (1996) Histoire des Colonisations, Seuil, Paris, p 252; Ian Brownlie (1979)
African Boundaries, A Legal and Diplomatic Encyclopedia, C Hurst and University of California Press for
the Royal Institute of International Affairs, London and Berkeley. More specifically, on the issue of
boundaries and indigenous peoples, see Lynette Russell (ed) (2001) Colonial Frontiers, Indigenous–
European Encounters in Settler Societies, Manchester University Press.
24
Commission for Africa (2005) Our Common Interest: Report of the Commission for Africa, London, p 125.
Couillard & Gilbert 34
March 2009