First people’s land plight stressed
Human rights commission report sets out steps for redress to government
Land redistribution has been a constant topic of conversation since 1994 and the tempo has mounted since President Cyril Ramaphosa reopened discussion on expropriation without compensation. But indigenous people have been lamenting their stolen land for centuries.
The South African Human Rights Commission has heard them and has set out concrete steps for the government to restore their access to the land and resuscitate their dying culture.
Groups such as the San, Khoi, Griqua and many others have been slighted often regarding redistribution and access to their land. Their claims remain a fraught process due to bureaucratic red tape, but their continued marginalisation makes an already tumultuous and arduous process worse.
The San and Khoi have persisted in their struggle for equality and rights and recently the tide has tangibly begun to turn in their favour.
From 2015 to 2017, the commission conducted a series of national hearings after a memorandum was handed to them by the Gauteng Provincial Khoi and San Council, which outlined concerns about racial classification, access to housing and land, and allegations of violence against indigenous communities since 1440.
These hearings came against the backdrop of the failure to adequately act on the 2005 recommendations of the UN’s special rapporteur on the rights of indigenous peoples, Rodolfo Stavenhagen, after his visit to SA that year.
In his report, Stavenhagen referred to the plight of the Griqua, Khoi, San, Khwe, Nama and others. Indigenous people “constitute some of the poorest of the poor in SA”, he said. The obstacle to their economic development was the “forced dispossession of traditional land that once formed the basis of hunter-gatherer and pastoralist economies and identities”, he said.
His visit came after the commission released the 2004 Khomani San Report, which set out to highlight the extent of human rights violations in the Khomani San community in the Northern Cape. The commission noted that despite the land claim process of the Andriesvale Ashkam region succeeding, the implementation phase failed to initiate a process of sustainable development that protected basic human rights.
The report said that local government had failed to provide water, sanitation, waste management or development in general and that sufficient measures had not been taken to incorporate the unique language and culture needs of the Khomani San into schools.
It concluded with recommendations that included “to provide assistance to the Khomani San community in managing and cultivating the land and in understanding the rights and assets afforded to the community [and] to prioritise furthering the language project aimed at encouraging the use of indigenous language among Khomani San children”.
What is perhaps most disconcerting about the UN and SAHRC recommendations is that they were never fully acted upon. This illustrates the level of importance given to the rights of indigenous people by the state and a lack of leadership.
While the concerns of groups such as the San and Khoi are multifaceted — including police brutality and substance abuse, as identified in the commission’s report released on Sunday — what remains the most urgent concern is identity erosion. Land and language are intimately connected with this struggle to retain, maintain and sustain identity. A lack of representation in public office and within government leadership circles is a structural frailty that directly affects how concerns of indigenous people are treated.
Khoi-San people submitted descriptions of cultural genocide at a commission hearing in response to the continued erosion of their identity. Submissions cited indigeneity as being stigmatised, which caused people to identify as coloured due its perceived sense of superiority regarding indigeneity.
The seriousness of assimilation due to desertion of indigenous identities and practices led the commission to recommend: “The state, through the Presidency and [the Department of Arts and Culture], must take steps on or before March 31 2019 towards removal of the forceful categorisation of Khoi and San peoples as ‘coloured’.”
It did not explain why this is a matter left to the Department of Arts and Culture, while the Presidency will certainly focus on more “pertinent” issues.
Many indigenous people were racially classified as “coloured” against their will. They actively assimilated into “colouredness” by abandoning their indigenous languages and exclusively speaking Afrikaans, which is more accessible, more widely spoken and far less stigmatised than indigenous languages and, depending on the spatial context, is a language of power.
The languages of the San, Khoi and all SA’s indigenous groups are protected by international law, although this does not guarantee their survival. International law guarantees the right of indigenous peoples to maintain and use their own languages, as well as the right of people to be taught in their indigenous language or mother tongue. International law has, however, rarely come to the aid of the most marginalised people in the world, whether it has been in SA or abroad.
In SA several languages are on the brink of extinction; the international community is unlikely to rescue them.
Indigenous people in SA have oral traditions, passing their history and traditions down generations through language. There are no books or ancient scriptures that can be passed down to keep indigenous languages alive, which is why accusations of cultural genocide were so readily made by members of the Khoi-San community.
Concern about land holds as much weight as language, and indigenous communities’ spiritual connection with land has long been documented. In its report, the commission states that “indigenous communities are entitled to obtain adequate redress or compensation for dispossession of land and territories and must be consulted by the state or private parties in relation to development or other projects which may impact indigenous communities”.
However, land has cultural significance to indigenous people because certain spaces are deemed sacred and others have specific and irreplaceable traditional value. This makes compensation for stolen land a moot point, as groups can no longer engage in rituals or practise their way of life.
The commission “requires” that the Department of Rural Development and Land Reform, together with the Office of the Presidency, take steps to expedite the process of restitution for indigenous communities, “in light of the recognition of the centrality of access to land, traditional territories and natural resources for the fulfillment of other rights of the Khoi-San”.
The department is required to provide the commission with a report within 12 months setting out steps taken to achieve this.
The commission also requires that the department conducts “meaningful consultations with indigenous communities and representative bodies with a view of developing culturally appropriate and practically implementable systems of land tenure”.
“The system adopted must ensure that sufficient checks and balances are in place to provide for the active participation of indigenous communities in the control, use and development of land, as well as for transparency and accountability,” its report states.
The commission directs the Department of Rural Development and Land Reform to align land redistribution programmes with capacity and skills development programmes to enable beneficiary communities to effectively manage and use land and natural resources in a sustainable way.
The knock-on effects of not being able to enjoy their livelihood as before are almost immediate as social disintegration quickly follows and the practicality of maintaining tradition is lost, as fewer people retain a specific indigenous identity and most of them are assimilated into other cultures.
Self-reliance is central to the lifestyle of indigenous people and as it wanes on ever-receding tracts of land, an adapt-ordie reality is quickly enforced.
The commission has given the Pan South African Language Board, in collaboration with several state departments, including those of basic education and of higher education and training, a year to “take steps to design and implement specific projects aimed at promoting and protecting the use of Khoi and San languages”. These projects should specifically include “the recording of indigenous languages into written format [and] policies to incorporate indigenous languages into the formal education curriculum, particularly for indigenous youth,” the commission emphasises.
In the two years of nationwide hearings on their plight, indigenous communities cited 1440 as the year when their violent land dispossession — by black groups — began. In 2019, there are finally recommendations in place to begin the process of redress. It remains to be seen whether this results in legislation and concrete action.
RARELY HAS INTERNATIONAL LAW COME TO THE AID OF THE WORLD’S MOST MARGINALISED PEOPLE