Somali Pastoralists’ Right of Access to Cross-Border Ancestral Pastureland: An Assessment of International Law and African Union Regional Policy on Pastoralists ()
1. Introduction
The Somali community is residing in the Horn of Africa, with its community members living in Kenya, Ethiopia, Djibouti, and Somalia. Pastoralism is the main source of income for this community, though some members also engage in trade and agro-pastoralism. However, as a result of global climate change, the areas in which Somali people live have been severely affected by extreme droughts and famine in recent years, with the consequences being the death of livestock due to a lack of pasture, starvation of its people in some cases, displacements of peoples and clan conflicts within the community itself, and inter-tribal conflicts with other neighboring communities, primarily caused by competition for meagre and shrinking livelihood resources, particularly pasture fields (Pavanello, 2009). The challenge that the Somali community and other pastoralists in Africa face is exacerbated in part by artificial international boundaries, which have confined them to subscribing to nationalities and citizenships of different territorial states, thus restricting their movements and pasture fields of their livestock, as they are subjected to the international border crossing immigration rules of different individual states (Hammond, Bakewell, & Chordi, 2017). The historical books, indicate that the Barlin Conference held between 1884-1885 (Craven, 2015), resulted in the enactment of the General Act of 1885, which paved the way for the territorial division of the African continent; its impact was the irreparable harm to the African communities and tribes, whereby the Africans were forced to separate and adopted different colonizers languages (General Act of the Berlin Conference on West Africa, 1885). Pastoralist communities in the Horn of Africa (HoA) are primarily found in Kenya, Tanzania, Ethiopia, Djibouti, Somalia, South Sudan, and Uganda; their primary source of income is livestock raring and nomadism (Rass, 2006). Pastoralism has become a less reliable means of livelihood in many ways as a result of climate change, owing to the extreme weather patterns that have negatively impacted these communities in recent years, forcing some of them to become pastoralist dropouts and, in some cases, forcing them to rely on humanitarian aid (Henry Mahoo, 2013). Pastoralists have complained of being marginalized because of skewed prioritization of infrastructural, social, and economic development, which has been blamed for exacerbating the situation by causing the areas they occupy to languish behind in infrastructural development, posing other related livelihood challenges to them (Ayele, 2019). The Somali community is one of those whose lives have been significantly impacted and disrupted by colonial governments’ territorial separations, which deny them their right to self-determination as peoples while also subjecting them to permanent alienation and condemnation of unfair territorial restriction (Hassan, 2020). Prior to the arrival of colonization in Africa, this community had practiced their freedom of movement as pastoralists and nomads for many centuries. In light of the restrictions imposed on this community in crossing international borders, which are governed by the various immigration rules of their respective citizenship states, it is observed that this community’s
right to self-determination as peoples, as provided for under international law, found in the United Nations Charter in Articles, 1(2), 55, and 73 (e)1 as well as other statutes, such as the International Covenant on Civil and Political Rights (ICCPR)2, and International Covenant on Economic, Cultural and Social Rights (ICESCR).3 The restrictions to the freedom of movement that the pastoralist communities used to enjoy prior to the colonization, continue to exist today (Guyo, 2017). Conflicts over biased resource sharing and the need for equitable distribution of national developments, and the economy are among the reasons in many countries that have led to demands and claims for peoples’ rights to self-determination, the demand on whose cause has in the past led to civil wars, is viewed because of territorial boundaries that separates same tribal African communities. The larger Somali community in the Horn of Africa is no exception; for example, in Kenya, Somalis fought against the Kenyan government in Shifta wars in the 1980s (Khalif & Oba, 2013). Similarly, to the reasons for the Somali people’s war with Kenya, was similar with kinds of rebellion which have been witnessed against the Ethiopian government by the Somali people in Ethiopia. In Ethiopian case, the members of a Somali clan, the Ogaden, formed the Ogaden National Liberation Front (ONLF), a rebel group founded in 1984, and which has in the past engaged Ethiopia in a civil war with the objective of separating from Ethiopia and uniting with the larger Somalia (OBE’, 2007). These armed conflicts, in most contexts, do not yield the expected result for both the government and the dissident population. Instead, they result in civilian deaths and population displacements, violations of human rights, and in most cases, property destruction, a negative impact on livelihood sources, and a slowing of the economy in both the affected country and the rebelling population (Seddon & Hussein, 2002). In most cases, in a community where the concerned population’s demands for the right to self-determination, for whatever reasons, most of such communities opted to engage in armed conflicts with state, of which the outcome has been disastrous.
The Somali community in the Horn of Africa occupies a greater area comparable with other communities; the areas or land which Somalis occupy are largely dry and with harsh climatical conditions, owing to the adverse changing climatical conditions globally, of which in recent years, especially between 2011 and 2012. The Somalis were severely impacted by droughts and famine, which negatively impacted on their livelihoods (Maxwell, Majid, Stobaugh, Kim, Lauer, & Paul, 2014). These hash climate conditions has been exacerbated by the inter-clan and tribal conflicts, and the worsening of the climate conditions, that have left Somali people vulnerable to the pastoralism shocks caused by droughts. This vulnerability has been the main reason for armed conflicts arising because of the competition to access the pasture fields for the animals, and of which have made pastoralism an ineffective exercise of livelihood, thus pushing this community into a penurious situation with pastoralist way of livelihoods being interrupted. Therefore, several members of this community, particularly youths, have been rendered pastoralist dropouts because of drought and conflict, and as a result; subsequently forcing Somali youths to seek alternative means of livelihood, including pushing some Somali youths into joining proscribed groups such as Al Shabab (Halabo & Berisso, 2020).
This article examines the right of Somali people to access ancestral pastureland within the Horn of Africa. The author contends that the international borders of the respective states where the Somali tribe is found should develop a regional law that would allow Somali people to freely access their ancestral land without being subjected to immigration and custom rules imposed by any of these states on Somali nomadic tribes.
The Somali People’s Pastoralism Livelihood: The Need for Free Movement for African Pastoralist Communities in Their Ancestral Land
The Somali community is the largest pastoralist single community in the Horn of Africa. As a pastoralist community, the Somalis occupy the larger percentage of the Horn of Africa. This community belongs to the Cushitic group of people, and their main occupation is livestock keeping or pastoralism, traditionally Somalis live a nomadic lifestyle, however, following the colonization and partition of African continent among the Western colonial powers, the Somali people found themselves confined into four independent sovereign states of: Kenya, Somalia, Ethiopia and Djibouti. According to Wikipedia, the Somali Ethnic group in 2020 had a population of approximately 20.2 million people in the Horn of Africa, which is distributed as follows: in Somalia (around 12.3 million), Ethiopia (4.6 million), Kenya (2.8 million), and Djibouti (534,000) (Wikipedia, 2020). Somalis are one large community with one language, culture, and are predominantly a pastoralist community; the one distinction is that they belong to different clans. However, because they are divided by international borders, they are denied basic free access to cross international borders to graze their animals and practice their nomadic culture freely within their ancestral grazing land, as they are subjected to immigration and customs requirements whenever they cross the international border within their domicile land. The imposition of different citizenships and nationalities on Somalis has impacted free movement of its community members within “Somali people inhabited areas” in the Horn of Africa (HoA) region. Considering that this community shares a common culture, language, and religion across their ancestral land in the HoA, the challenge posed by international borders to the Somali pastoralists’ livelihood is arguably a violation of their human rights and right to self-determination under international law (Galaty, 2016).
2. A Review of International Law and African Regional Policy on Pastoralist Cross-Border Access to Ancestral Pastureland
Almost all the African territories, except Ethiopia and Liberia, were for a long time under the colonial rule after a group of European powers suddenly became involved in the territorial partitioning of Africa between 1884 and 1885 (General Act of the Berlin Conference on West Africa, 1885). The purpose of dividing African land, according to the colonial powers was to prepare Africa for colonization to “civilize” African people (Keller, 2007).
The partitioning of African territories amongst the colonizers resulted in permanent territorial demarcations, from which the current African states inherited their borders. The process of carving out the continent’s administrative units and creating nations, did in some cases, determine that one or more completely unrelated tribal societies would from that time live together and share a common citizenship or nationality (Mutua, 1995). However, after these African territories got their independence, there was no point of return in retreating back to the former tribal territories pre-dating the colonization, as the new entities were now states and the African Union (AU), restricted the redrawing of the territorial frontiers in the post-colonial Africa under the principle of uti possedentis, prohibiting the changing of African states borders after the independence.4 This principle outlaws nations from retreating or claiming to have back their former pre-colonial borders, after the independence. The issue concerning the principle of uti possedentis was extensively explained in a dissenting opinion of Judge Yusuf, in the Burkina Faso v. Niger case (Dissenting Opinion of Judge Abdulqawi A. Yusuf in Frontier Dispute (Burkina Faso/Niger), Judgment, 2013). Following the partitioning of Africa, the continent was divided into more than fifty countries, the Somali community seems to have been the most affected, considering that this tribe, as a consequence of colonization, ended-up being scattered across four countries of the HoA; Somalia, Kenya, Ethiopia, and Djibouti (Dahir, 2014).
The Somali people have previously fought with the governments of Kenya and Ethiopia, their main desire, among others, has been a demand to be allowed to reunite with the larger Somalia territory rather than being divided into different jurisdictions (Michalopoulos & Papaioannou, 2011). Beyene discovered that historical changes in land use by one of the ethnic groups, resource scarcity, violation of customary norms, power asymmetry, and livestock raids are among the factors that have contributed to the conflict’s recurrence in his study of Miesso, Somali region of Ethiopia. These raids cause conflict and restrict access to grazing areas, which has a socioeconomic and political impact (Beyene, 2007). According to respondents in a baseline survey conducted by the United Nations Food and Agriculture Organization (FAO), revealed that, land in Somaliland is the most important and valuable natural asset. In many areas of Somaliland, communal ownership of land and land use reduces conflicts while increasing the utility of land for their primary livelihood, pastoralism. The study concluded that land conflict issues, can be mitigated by developing policies that address the conflicts associated with community encroachment (FAO, 2015). According to the United Nations Declaration on the Rights of Indigenous Peoples, in Article 2, “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.5” According to Kohl, one of the most frequently cited descriptions or working definitions on who are the indigenous peoples was drafted in 1986 by José Martinez Cobo, the former Special Rapporteur on the Problem of Discrimination Against Indigenous Peoples, it state that;
“Indigenous communities, peoples and nations are those, which, having a historical continuity with pre-invasion and pre-colonial societies considers themselves distinct from other sectors of the societies now prevailing in those territories or part of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. (Kohl, 2020)”
If Cobo’s definition is applied to the Somali people, and indeed other pastoralists facing similar challenges, they should be entitled to unlimited pasture access on their ancestral land as indigenous people of the Horn of Africa (HoA), regardless of international borders. However, one of the most significant challenges has been the lack of both international and national laws that recognize customary rights of indigenous regarding land access and usage by pastoralist communities, despite the fact that the pastoralist community is estimated to have a global population of 180 million people (Bruce, Ngaido, Nielsen, & Jones-Casey, 2013).
For example, in 2017, the media reported that diplomatic relations between Kenya and Tanzania had strained due to the seizure and sale of 1125 cattle belonging to Kenyan Maasai herders; Tanzania was also accused of auctioning off another 2400 cattle for crossing into Mount Kilimanjaro National Park in search of pasture (Olingo, 2017). Nonetheless, the Maasai pastoralists regard those areas as ancestral pastureland, belonging to their community regardless of the territorial sovereignty of the relevant state jurisdiction.
In the absence of effective legal policies that recognize pastoralists’ specific rights to land access, pastoralist communities have made some efforts to agitate for their right to graze on ancestral land by banding together in global forums. Case-studies have shown that, the outcomes of the partners’ deliberations at a workshop, where 17 states in Africa, Asia, Europe, and Latin America prepared case-studies describing how pastoralists’ organizations were successful in asserting their land rights. One of these workshops was held in Arusha between 10th-15th of March 2008, Tanzania titled “Organization of Pastoralists to Defend their Land Rights (IUCN, 2011)”. As a result, some African states have implemented legal instruments that formalize common property systems. In Ethiopia, for example, communal rural land holdings can be given as property if there is a tribe-based communal landholding system in place (Proclamation No 456 Article 40, Sub Article 5). Similarly, in Uganda, customary land rights can be formalized through the formation of “Communal Land Associations” (Uganda Land Act 1998, Sect. 16 (133)). Certain areas in Kenya have been designated as “Trust Land,” a common property land tenure system in which land is managed on behalf of people and local governing authorities (Native Land Act 1904). Trust Lands are areas that were once occupied by “natives” during the colonial period but were not adjudicated, consolidated, or registered by individuals or groups and were not taken over by the government. In Samburu, Kenya, for example, land parcels are assigned to groups (IUCN, 2011). Efforts have been made at the Regional Economic Communities (RECs) to incorporate pastoralist policy. For example, the East African Community (EAC), which consists of seven states (Kenya, Uganda, Tanzania, South Sudan, Burundi, Rwanda, and the Democratic Republic of the Congo (DRC), has adopted a policy framework to address pastoralist welfare, particularly in Kenya, Uganda, Tanzania, and South Sudan. The pastoralism-related policies, developed collaboratively by the AU, IGAD, and EAC, are aimed at addressing the challenges that pastoralists encounter in the production and livelihoods systems. It seeks to advance and strengthen pastoralism governance of land and natural resources, livestock disease control and livestock trade, disaster risk management, climate change, and conflict resolution (AFSA, 2017). The African Union (AU) launched the Policy Framework for Pastoralism in Africa in 2007, with the goal of supporting and harmonizing policies across Regional Economic Communities and Member States (African Union, 2010). It has two goals.
Objective 1: Secure and protect pastoral peoples’ lives, livelihoods, and rights, and ensure continental commitment to the political, social, and economic development of pastoral communities and pastoral areas.
Objective 2: Strengthen pastoral livestock’s contribution to national, regional, and continental economies.
Gelan observes that, the socioeconomic significance of African pastoralism stems from facts. 1) Pastoral areas cover roughly 40% of Africa’s land area, with significant variations between countries; 2) livestock or livestock-related activities account for at least 50% of the total value of marketed and subsistence production consumed by an average pastoralist household; 3) Pastoralists are custodians of key national resources found in arid and semi-arid areas, and pastoralism as a system helps to protect and safeguard these resources; 4) Pastoralists are custodians of key national resources found in arid and semi-arid areas, and pastoralism as a system helps to protect and safeguard these resources (Gelan, 2013).
However, in Africa, pastoralist policies implemented at the national, regional, and continental levels have failed to address the right to pasture on ancestral land for the pastoralist communities where inter-state border crossings are concerned. Despite the substantial challenges that the Somali pastoralist community faces in their respective countries of residence, it is critical to assess the Somali pastoralist community’s plight in terms of their right to access pastureland in a larger Somali ancestral land, without the need to prove nationalities or citizenship of any of the four HoA states in which this tribe resides, for the Somali people to exercise their international law right to self-determination.
According to the author of this article, with the absence of a legal policy in place to support African pastoralists cross-border access to the ancestral pastureland; the respective governments of the Horn of Africa (HoA) are viewed as continuing to violate the rights of Somali people to access pasture fields in their ancestral land. A similar situation applies to all African states with pastoralist communities facing similar challenges. As a result, the Somali people’s rights to self-determination under international law, and, in a broader context, the rights of all pastoralists in Africa to self-determination under international law relating liberties provided under Article 1 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) Adopted on 16 December 1966, General Assembly resolution 2200A (XXI), which states that.
“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.
Therefore, the continued restriction of the Somali people, as well as other pastoralist communities around the world, such as the Maasai in Kenya and Tanzania, to access their ancestral pastureland across borders is a violation of their human rights.
3. Climate Change Impacts and Lack of Infrastructure Development in Pastoralist Inhabited Areas in Africa
3.1. The Climate Change and Its Impacts to the Pastoralists
Pastoralism is one of the oldest forms of livelihood for many African communities. Pastoralists in the Horn of Africa mostly occupy the arid and semi-arid lands (ASAL), that are mostly regarded as dry or semi-desert areas. Because of global warming, dry-land areas have become increasingly vulnerable to harsh climate patterns in recent years. Climate change has caused erratic climate conditions with extreme weathers, forcing pastoralists to abandon their lifestyles as they face numerous challenges because of the effects of climate change, which is blamed for causing droughts and floods, as well as other extreme weather impacts (FAO, 2010). Gutu Boka has provided some figures of the affected people in Ethiopia’s Somali region. For instance, these statistics show that in April 2018, 43, 887 households representing 283,322 people were affected by floods and required emergency food aid, clean drinking water, health services, and non-food items (Boka, 2020). Similarly, the United Nations (UN) reported that the famine that occurred in the Horn of Africa from 2010 to 2012 killed more than 260,000 people, with the majority of those who died coming largely coming from the Somali people inhabited areas in areas they occupy within the Horn of Africa (BBC, 2013). The effects of climate change have forced a sizable number of Somali pastoralists to abandon their long-held cultural and economic practices, forcing some pastoralists to rely on humanitarian aid for survival, and subsequently continuing to receive or depended on food aid for several years with no foreseeable end. Apart from the Somali community, which has been regularly and severely affected by climate change-related droughts and floods, other pastoralist communities have also been affected. For example, the Maasai people, who live in both Kenya and Tanzania, they are pastoralist community. The Maasai as pastoralists; also practices pastoralism, which has been the source of their livelihood and has long been practicing nomadism in the Horn of Africa region; they, too, have felt the effects of climate change and lost their animals during the dry seasons, which are exacerbated by erratic rainfall patterns (Kimiti, Western, Mbau, & Wasonga, 2018). Climate change threatens pastoralist livelihoods and cultural traditions not only in the Horn of Africa, but throughout the African continent. The pastoralists’ coping mechanisms in view of the climate change are expected to pose a significant challenge to the pastoralists and other non-pastoralists around the world. To address these extreme weather challenges, it is necessary to assist the pastoralist community in diversifying their livelihoods.
The immediate need, however, is for respective governments to support pastoralist people within their domiciled territories, by creating laws at national and regional level which would discarding bottlenecks in access to marketing of livestock and its products through lobbying and opening of international markets and borders of immediate neighboring countries for free movement and trade within the pastoral community and other communities. This could only be accomplished through the passage of laws and the implementation of policies that encourage livelihood diversification at both the national and regional economic levels, such as the African Union (AU).
3.2. Neglect of Infrastructure Development in Pastoralists Inhabited Areas
The governments’ priorities for the development of pastoralist areas have been very low; this lack of attention is compounded by the absence of a viable policy to address the challenges faced by the pastoralists (African Union, 2010). In Kenya, for example, pastoralist communities have less social and physical infrastructure, inadequate health services, and lower educational standards than the national average. For a long time, the North-Eastern Kenya region, where the Somali community live, has suffered greatly because of neglect by successive Kenyan governments in infrastructural developments, the past Kenyan governments have paid less attention compared to other parts of the country in providing social, economic, and physical infrastructural developments (Nyanjom, 2014). Therefore, most residents in North-Eastern Kenya are poorer than in other parts of the state, though this has improved since 2013 thanks to the devolved governance style. As a direct consequence of this neglect, Somali youth have fewer employment opportunities, making them more vulnerable to being conscripted to join terrorist groups (World Bank Report, 2008). Similarly, the Maasai have faced challenges with limited pasture area for their livestock due to land ownership and unfavorable government policies that have not fully embraced pastoralism practices in many years (Tarayia, 2004). The situation is similar with the pastoralists in Ethiopia, where social, economic, and infrastructure development is also lagging in Somali people inhabited areas, similar with other parts of the state where pastoralists are found. According to Firehiwot Sintayehu and Yonas Ashine, the severity of the effects of natural and man-made environmental challenges is the root cause of the problems that pastoralists face in Ethiopia.
In general, the areas inhabited by the pastoralist in Africa, have been observed to be neglected by the respective governments, who have made pastoralists to become victims of political marginalization by failing to develop concrete national and regional policies which supports in addressing the plight pastoralists (Gebeye, 2016). Therefore, pastoralists have been denied access to social and infrastructure developments, as well as, more importantly, to traditional governance structures and market linkages (Sintayehu & Ashine, 2015). The absence of government policies that support pastoralists’ livelihoods has been viewed as an indirect contributor to the inaccessibility of rural schemes of financing for pastoralists’ ventures in economic progression, as well as a source of resource-related violent conflicts. The failure of tangible regional governments’ policies within the Horn of Africa governments, as well as a lack of financial support to assist pastoralists, have contributed to the pastoralists’ vulnerability in losing the economic value of their livestock.
Even though, the African Union (AU) acknowledges the need to implement a pastoralist policy document that addresses issues affecting pastoralists on the African continent; however, the AU has yet to adopt that policy document (African Union, 2010). So far, the AU has only issued a policy framework for pastoralism in Africa, outlining key steps for member states to take in developing pastoral policy. Although only a few AU member states’ governments have put in place policy structures to implement the AU pastoral policy framework, significant progress has yet to be made. The key steps outlined in the “Policy Framework for Pastoralism in Africa (African Union, 2010)”, which are as follows:
· Stakeholder consultation and identification of salient problems in the pastoral sector.
· Preparation of working documents for further discussion with stakeholders.
· Appraisal of institutional and financial/budgetary options.
· Refinement,processing,and approval of the national pastoral policy.
· Design of implementation programs and rationalization of institutional responsibilities for implementation; enactment of new and revision or repeal of existing pastoral-related legislation.
· Further dissemination of information to the public,training,and capacity building to support implementation.
African pastoralists face two general challenges: marginalization and restrictions on their rights to freely access across-border ancestral land. Climate change has exacerbated the lack of favourable regional policy for pastoralists, which has had negative consequences for nomadism and pastoralism. While the conditions and effects of climate change are a global challenge, the absence of viable legislative policies that support pastoralists access to cross-border ancestral pastureland in the Horn of Africa is within the respective states’ powers. To address the plight of the region’s pastoralists, the concerned States should enact relevant regional laws and policies that allow access to trans-boundary movements for livestock pasture.
4. Conclusion
This article contends that, while there are regional policies in Africa intended to support pastoralists, these policies have failed to recognize that pastoralists, as indigenous people, have a right to access their ancestral pastureland as provided under Article 2 of the United Nations Declaration on the Rights of Indigenous Peoples, Resolution adopted by the UN General Assembly on September 13, 2007. As a result, these restrictions on access to cross-border pastureland continue to violate the pastoralists’ right to self-determination under international law, as enshrined in the Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
As a result, the Somali people should be granted the right to self-determination as pastoralists under the ICESCR, allowing them to practice pastoralism across international borders within the scope of their ancestral pastureland. To that end, the concerned sovereign governments of Kenya, Ethiopia, Somalia, and Djibouti are encouraged to collaborate on a flexible policy that recognizes pastoralism and nomadism’s right to cross-border pasture fields for their people and livestock; such a policy should be extended to other pastoralist communities across Africa.
NOTES
1United Nations, Charter of the United Nations (UN Charter), 26 June 1945, 1 UNTS XVI, Art. 1(2), 55 and 73(e).
2International Covenant on Civil and Political Rights (ICCPR) Art. 1(2), UNGA Res 2200A (XXI), 999 UNTS 171, adopted on 16 December 1966, entered into force on 23 March 1976.
3International Covenant on Economic, Social and Cultural Rights (ICESCR) Art. 1(1), UNGA Res 2200A (XXI) UNTS, Vol. 993, adopted on 16 December 1966, entered into force on 3 January 1976.
4See Constitutive Act of the African Union, adopted 7 November 2000, at Article 4 (b), available at https://au.int/sites/default/files/treaties/7758-treaty-0021-constitutive_act_of_the_african_union_e.pdf.
5See, united nations declaration on the rights of indigenous peoples, article 2, resolution adopted by the general assembly on 13 September 2007, [without reference to a Main Committee (A/61/L.67 and add.1)] 61/295 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.