157.
The "public utility test" is more broadly understood in the case of encroachment
on indigenous land than in the case of individual ownership. Indeed, this
condition is more stringent when applied to ancestral land rights of indigenous
peoples. In 2005, this point was highlighted by the Special Rapporteur of the
UN Sub-Commission on the Promotion and Protection of Human Rights in the
following terms:
"Limitations, if nm/, on the right of indigenous peoples to their natural l('SOlHC€S
mus f floui only from the most urgent mid compelling interest of the State. Few,
if any, limitations on indigenous resource rights are appropriate, because the
indigenous ownership of the resources is associated with the most important and
.limdamental human rights, including the rights to life, food, self-determination,
shelter and the right to exist as a pe0ple."'*7
158.
In its own jurisprudence, the Commission notes that "... the reason for the
limitations mast he strictly proportional rind absolutely necessary in relation to
lie
henejils irzvoI1>ed".
159.
lt also recalls the case of Handyside v UK, in which the European Commission of
Human Rights stated that any conditions or restrictions imposed on a right must
be "proportionate to the legitimate aim pursued".'"' The African Commission
therefore considers that any limitation of rights must be proportionate to the
legitimate need and must be the least restrictive measure possible.
160.
In this case, it is clear that the Batwa, an indigenous people, were dispossessed,
without compensation or resettlement, of their ancestral land, whereas it was
not proven that their presence or continued presence on the site was harmful,
given their way of life, which consisted of food gathering and hunting.
161.
It follows that Article 14 was violated.
On the alleged violation of Article 16
162.
Article 16 of the African Charter states that "t. Even/ individual shnll have the
right to enjoy the best attninnMe state of physiml and mental health. 2. Stale Parties to
the present Charter shall fake the necessary measures to protect the health of their people
find to ensure that they receive medieval attention when they
of the Charter advocates the right to health.
""'.'
'" See Communlcatlon 276/03 - op.cit., para 212
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