Over four days in November 2018, two remarkable events took place in the progression of indigenous and rural peoples’ rights in South Africa and internationally.

The first was a final vote within the United Nations General Assembly, leading to the signing of the United Nations Declaration on the Rights of Peasants and Other People Living in Rural Areas (UNDROP).

The second was the Baleni judgment in South Africa, which secured the Umgungundlovu residents’ “right to say no” to mining on their land without their consent.

However, when President Cyril Ramaphosa signed into law the Traditional and Khoi-San Leadership Act on 20 November 2019, one year after the above-mentioned events, it dealt a massive blow to the momentum of rural and indigenous groups in making visible their plights and asserting their rights in South Africa.

The act has been widely criticised in public consultations across the country, rejected by social movements and condemned by some KhoiSan leadership. Many argue that the law recreates apartheid-era “tribal” boundaries rather than contributing to building a postapartheid democracy and upholding equal citizenship.

Condemnation of the act also stems from the fact that it allows kingship and queenship councils to create partnerships with investors without first securing the consent of those living in traditional territories, who will bear the brunt of the impact of these partnerships. In addition to these critiques, the two events in 2018 illustrate that the act is widely out of step with the gains made by indigenous and rural people in South Africa and internationally.

International declaration

The UN General Assembly’s Third Committee, which deals with social and humanitarian affairs and human rights issues, voted in favour of the UNDROP on 19 November 2018, fundamentally securing its adoption by the UN General Assembly a month later. Importantly, South Africa was one among a small group of countries that championed this effort.

The declaration is the result of more than a decade of organising by some of the world’s largest peasant rights movements, including international farmers’ organisation La Via Campesina. It provides international visibility and protection for rural people in the context of, for example, economic policies and agreements between states and corporate entities for large-scale investment that ignores their human rights.

Importantly, Article 2(3) of the UNDROP states that “before adopting and implementing legislation and policies … that may affect the rights of peasants and other people working in rural areas, states shall consult and cooperate in good faith with peasants and other people working in rural areas through their own representative institutions … responding to their contributions, taking into consideration existing power imbalances between different parties and ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes.”

Signing the Traditional and Khoi-San Leadership Act into law fails to uphold these principles in a significant way; thousands of people participated in public consultations on the act but their input was not acknowledged.

Many more participated in consultations and conducted research that contributed to the final reports of two panels – the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change and the Presidential Advisory Panel on Land Reform and Agriculture – both of which concluded that the act required amendments to protect the rights of indigenous and rural people and recognise their customary law.

As such, the act represents a failure to live up to an international declaration for which South Africa has otherwise advocated.

Mining rights

Just days after the UNDROP was signed, the Pretoria high court affirmed on 22 November the rights of the Umgungundlovu group, known as Xolobeni, to “say no” to a proposal to begin mining on their land without their consent.

In Baleni and Others vs Minister of Mineral Resources and Others, it was determined that prior to granting a mining right, the Department of Mineral Resources must gain the consent of indigenous and rural people living by customary law through their own traditional governance institutions.

This court victory came hot on the heels of a major victory in the Constitutional Court on 25 October 2018. In Maledu and Others vs Itereleng Bakgatla Mineral Resources, the Constitutional Court upheld that the Mineral and Petroleum Resources Development Act does not trump the rights of rural people to tenure security, as protected in the Interim Protection of Informal Land Rights Act. Effectively, according to the judgment, the department cannot grant mining rights without the consent of impacted communities.

The Baleni judgment is recognised internationally as being at the forefront of struggles to protect the rights of rural people to free, prior and informed consent (FPIC). By referring to FPIC, the judgment applies this transnational standard in terms that make sense in the local context. Importantly, the court elaborated on FPIC by finding that consent must be achieved collectively and through customary law and governance practices, and needs to be granted before mining begins.

In their arguments before the court, the Xolobeni community aligned themselves with indigenous people from around the world, recognising their common experiences of state-enforced exclusion and denial of customary law. Interested international parties took notice of and celebrated this victory for Xolobeni, as they had the Constitutional Court’s Maledu judgment the previous month.

Leading South African researchers identify the significance of FPIC in the South African context.

Researchers with the Legal Resources Centre, a public interest law firm, have written in a report produced in partnership with Oxfam that FPIC is an emerging standard for customary communities to leverage in their resistance to development projects forced on them.

“In the African context, recognising the unique histories of colonialism and postcolonialism across the continent, FPIC is increasingly interpreted as a standard for affected local communities … African regional human rights law, customary law and indeed various existing statutes and jurisprudence, elevate the standard of consent to a right to be claimed by customary land rights holders.”

The authors of the report go on to describe the convergence of international indigenous peoples’ rights and the recognition of customary law and tenure rights as “unstoppable”, a movement propelled by the efforts and resistance of rural communities across the continent.

Willingness to marginalise

Members of the WoMin Collective in South Africa, an alliance of women united against destructive resource extraction, similarly describe the emancipatory character of FPIC in a 2017 article in which they explain “consent” as deriving centrally from struggle. “Complex and intersecting inequalities of class, race and gender across households, communities, states and regions are challenged by the notion of FPIC, which gives power to individuals and communities to claim their right to development on their own terms.”

FPIC is not simply a legal claim, they suggest; rather it is one aspect of “a political process won through local organising, combined with clear ideas about local development, and political solidarity from outside the community”.

In light of this transnational movement, Ramaphosa signing the Traditional and Khoi-San Leadership Act demonstrates the ANC’s willingness to marginalise South Africa among interested international parties, which are moving towards a deeper recognition of the distinct rights of indigenous and rural people. The act is at odds with the achievements of not only rural communities in South Africa with significant court victories to celebrate but also with the achievements of indigenous and rural people around the world who are similarly advocating for state recognition, control over resources and self-determined development.

In other words, in addition to being out of step with constitutional guarantees of human rights, dignity and equal citizenship, the act is out of step with the gains made by rural and indigenous people in southern Africa and globally.

Fundamentally, the act undercuts, rather than elevates, the rights of people and communities, particularly in the context of extractive industries. Instead of working in solidarity with powerful transnational movements of rural and indigenous people, the ANC and traditional leaders are isolating themselves in a twisted brand of South African exceptionalism that resurrects colonial and apartheid forms of chiefly autocracy.

This article first appeared in New Frame on 16 January 2020.