Abstract

WICOMB, Wilmien  and  SMITH, Henk. Customary communities as 'peoples' and their customary tenure as 'culture': What we can do with the Endorois decision. Afr. hum. rights law j. [online]. 2011, vol.11, n.2, pp.422-446. ISSN 1996-2096.

The peoples' rights protected in the African Charter, and in particular the right to culture, development, natural resources and the emphasis on community self-determination and self-identification, potentially provide the basis for creative jurisprudence to protect rural communities and promote their participation in decision making and benefit from the development of their land. In the Endorois decision, the African Commission could have relied on domestic African jurisprudence to give new content to the participation rights of all rural communities living under customary law, and not just those that can prove their own indigeneity. The article deals with the notion of self-defining customary communities in Africa and the jurisprudence of the South African Constitutional Court on living customary law, being varying, localised systems of law observed by numerous communities. The African Charter does not explicitly recognise customary law, but the award of title in the case of the Endorois, the evidence of customary forms of tenure and the centrality of land and associated practices in the culture of the people, amount to such recognition. The article concludes with a note on the procedural aspect of participation in decision making. The consent standard for any limitation on the right to property, culture and development reflects respect for and recognition of customary law and culture. The customary law tenure rules of communities require community permission before outsiders could use and share in the community's property and resources.

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