LITIGATING INDIGENOUS PEOPLES’ RIGHTS IN AFRICA: POTENTIALS, CHALLENGES AND LIMITATIONS JÉRÉMIE GILBERT* Abstract Adopting a comparative analysis, this article examines some recent litigation which has focused on indigenous peoples’ rights across the African continent. The aim is to explore both the potential and the challenges and limitations of litigation as a tool for supporting the rights of indigenous peoples. The article explores the extent to which a specific African jurisprudence is emerging 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 when engaging with litigation in order to explore the extent to which litigation can contribute to the legal empowerment of some of the most marginalized indigenous communities in Africa. Keywords: Africa, development, indigenous peoples, land rights, legal empowerment, litigation. I. INTRODUCTION It is estimated that approximately 50 million indigenous peoples live across the African continent. 1 Commonly across the continent, they face hardship, discrimination, non-recognition of their rights to lands and natural resources, as well as high levels of economic, social and cultural marginalization. 2 In many parts of Africa, indigenous communities are forced out of their ancestral lands to make room for the establishment of wildlife reserves, tourism resorts, or to allow the extraction of natural resources. All these issues have been examined and analysed in a groundbreaking report issued in 2003 by the Working Group on Indigenous Populations/Communities of the * Professor of Human Rights Law, University of Roehampton, jeremie.gilbert@roehampton.ac. uk. This article is based on a presentation given at the Half-Day Workshop on ‘Adjudication and Indigenous Peoples’ organized at Queen Mary University, London in January 2016. The author would like to thanks Chris Kidd, Ben Begbie-Clench, Maria Sapignoli, Lucy Claridge and Paul McHugh for comments on an early draft of the article. 1 See International Work Group on Indigenous Affairs, at <http://www.iwgia.org/regions/ africa>. 2 On the situation of indigenous peoples in Africa, see R Laher and K Singí Oei (eds), Indigenous People in Africa: Contestations, Empowerment and Group Rights (Africa Institute of South Africa 2014); S Dersso (ed), Perspectives on the Rights of Minorities and Indigenous Peoples in Africa (PULP 2010). [ICLQ vol 66, July 2017 pp 657–686] doi:10.1017/S0020589317000203 use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0020589317000203 Downloaded from https://www.cambridge.org/core. IP address: 54.70.40.11, on 08 Sep 2019 at 02:19:49, subject to the Cambridge Core terms of