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non-judicial or discretionary domestic remedies that may or may not be available in the DRC. 34. Furthermore, and notwithstanding the aforementioned arguments, the circumstances of this present case are such that the requirements of Article 56(5) of the Charter must be deemed to have been complied with. In fact, according to the Complainants, the requirement of having exhausted domestic remedies is based on the principle according to which the Respondent State must be aware of any alleged violation in order to have the opportunity to provide remedies within the confines of its own national legal system before they are submitted to the Commission. According to the Complainants, the Respondent State had knowledge of the content of their Communication for decades and had not reacted. Consequently, the rationale for Article 56(5) has been fully complied with. 35. With respect to the requirement of Article 56(6), the Complainants submit that this requirement is met since the Communication was filed with the Commission "within a reasonable period of time" after the date on which the domestic procedures initiated by the Complainants (if they were to be considered as "domestic remedies") were to be deemed to have been exhausted in terms of what constitutes a "reasonable period of time within which to exhaust domestic remedies" under Article 56(6). 36. They also point out that in its Communication 308/05 - Michael Majuru v. Zimbabwe4, the Commission considered that "six months seems to be the usual standard". It explained, however, that "each case must be dealt with on its own merits" and thus, "where there are valid and compelling reasons for the Complainant not to submit his other complaint in time, the Commission llllll/ consider the complaint in order to ensure fairness and justice"5 37. The Complainants consider that domestic remedies within the meaning of Article 56(5) that need to be exhausted do not exist. However, the Batwas sought to exhaust all available domestic mechanisms before submitting the Communication. Moreover, they state that the Communication was submitted within six months of being informed that the Public Prosecutor's Office had not produced its conclusions in the appeal proceedings before the Supreme Court, contrary to the law in force. ' Communication 308/05 Michael Majuro v/ Zimbalnvd (2008) ACHPR Para. 109 5 Ibidem 7

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Communication 588/15 Minority Rights Group International and Environnement Ressources Naturelles et Développement (on behalf of the Batwa of Kahuzi-Biega National Park, DRC) v. Democratic Republic of Congo (DRC)

ACHPR Decision

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Type of Document

Decision

Keywords

Adequate Standard of Living
Economic, Social and Cultural Development
Education
Forced Eviction
Free Disposal of Wealth and Natural Resources
Freedom from Discrimination
Freedom of Religion
Indigenous Communities
Internal Displacement
Land Expropriation
Land Rights
Right to a General Satisfactory Environment
Right to Education
Right to Health
Right to Life
Right to Property
Rights of Minority Communities

Case Head Notes: The Complainants, the Batwa, are recognized by other ethnic groups in the region as the original inhabitants of the forests of the Kahuzi Mountains. Their livelihoods, homes, traditional and cultural life, and well-being depend on the forests and land. In 1970, Law 70-316 transformed the zone, where the Batwa live, into a National Park. The change came along with a measure interdicting any human presence in the park, with the supposed intention to protect gorillas in the eastern, low-altitude region of the zone. The Batwa were expelled from the forest without any appropriate means of consultation, or adequate compensation. In 1975 the Respondent State passed another law, No 75-238, which extended the area of the park significantly, further encroaching on the ancestral lands of the Batwa communities and resulting in an increase of evictions. Between the two laws about 6000 Batwa families were evicted. While other communities were also evicted, they refused to leave and, to date, still live on the lands and use some parts for agricultural activities. The Batwa state that their situation has worsened considerably due to the evictions and their aftereffects. They currently live in abject poverty, in makeshift camps, on the fringes of the forest. In addition to being deprived of their lands and traditional way of life, the Batwa are suffering from a high rate of malnutrition, mortality and various diseases and, as a minority group living amongst different ethnic groups, the Batwa are often victims of deep-seated discrimination. First, the Commission confirmed that the Batwa people have the characteristics of an Indigenous people and that, therefore, their eviction from the area without resettlement constitues a general infringement of their right to existence. The Commission found a violation of Article 2, stating that it appeared that the Batwa were treated different from others, without any valid objective or reasonable justification. Specifically, the Commission cited sources that other communities continue to make use of the park without problems. Noting that if Indigenous peoples are displaced, without resettlement under the same living conditions, their lives are threatened, the Commission found a violation of Article 4 stating that, by expelling the Batwa from their land, the Respondent State created conditions that negatively effected the Batwa peoples' potential for a decent life. The Commission found a violation of Article 8, as the eviction of the Batwa from their land, and the ban on their return, infringed on the Batwa peoples' freedom of worship. Acknowledging that the right to exercise the free practice of religion could be limited by a "necessary and reasonable" restriction, that is necessary to maintain law and order, the Commission noted that the local authorities refused to allow the Batwa to return because they stated that the Batwa posed a threat to the ecosystem. However, the Commission cited a report by the Commission's Working Group which indicated this the local authorities justification is just a pretext because the Batwa have never hunted gorillas, and do not destroy the forest by cutting down trees. Stating that the traditional possession of land by Indigenous peoples has effects equivalent to those of title granted by the state, and that Indigenous community members who have involuntarily left their ancestral land retain their right to possession and ownership, and that, if their land has been transferrred to a third party, Indigenous peoples are entitled to restitution, the Commission found a violation of Article 14 because the Batwa, an Indigenous people, were dispossesed without compensation, or resettlement, and there was no evidence that their continued presence on the site was harmful. Noting that the forest from which they were evicted was the only source of medicinal plants necessary for the traditional health practices of the Batwa, and that their eviction, without resettlement in a similar setting, forced the Batwa to live under difficult conditions, with no access to healthcare, the Commission found that the Batwa's right to the highest attainable standard of health (Article 16) had been violated. The Commission found a violation of Article 17 (1), and stated that the eviction of the Batwa from their ancestral land deprived the community of passing knowledge, partciularly medicinal knowledge, on to younger generations. The Commission found a violation of Articles 17(2) and (3) because the Respondent State did not take into consideration the right to culture as envisaged in the context of Indigenous peoples, as the eviction of the Batwa deprived the Batwa people of cultural and religious references. Stating that the establishment of a national park should not be done to the detriment of the original inhabitants, the Commission found a violation of Article 21, because the Batwa had the rights to access and occupy the forest, and benefit from it, and the Respondent State failed to produce any evidence that the establishment of the national park was not to the detriment of the Batwa people. On the contrary the Commission said it was clear that the Batwa were denied access to their lands, which contained a number of natural resources, and that the Respondent State has exploited these resources without paying the Batwa compensation for the benefits derived from those resources. Noting that, in order to realize the right to development, the Respondent State has an obligation to involve Indigenous peoples in the planning of health, housing and other economic and social programs affecting them, the Commission found a violation of Article 22 because the Batwa were not consulted when they were expelled from their ancestral forests, and the eviction had a serious impact on the Batwas' socio-economic and cultural development. The Commission found a violation of Article 24 stating that the Respondent State must take into account the specificity of the Indigenous population, in order not to create an unfavourable environment for them. The Commission stated that, in the present case, the Respondent State did not take into account the natural and cultural conditions, associated with the eviction of the Batwa, that would have a negative impact on lives of the Batwa people. The Commission found a violation of Article 1, noting that a violation of any provision of the Charter automatically implies a violation of Article 1. The Commission declared that the Kahuzi-Biega Forest has been the ancestral home of the Batwa since time immemorial and that the continued occupation of the forest is essential for their survival. The Commission also declared that the occupation of the forest, by the Batwa, did not constitute any danger to biodiversity and that, by excluding the Batwa from the forest, the conservation model used in the Kahuzi-Biega National Park failed. The Commission requrested the Respondent State to, in consultation with the Batwa, establish a mechanism for demarcation and titling of Batwa ancestral territory and related rights, ratify ILO Convention No C107, reintegrate the Batwa into their ancestral territory, refrain from any action that may prevent the Batwa from using or enjoying their ancestral lands until these measures are adopted and implemented, rescind all laws or other measures that prohibit the presence of the Batwa on their ancestral lands, take the necessary measures to implement the Kampala Convention, remove non-Batwa from Batwa ancestral lands and territories, establish an independent committee of experts in compensation and reparations to examine the value of compensation required to address the harm suffered by the Batwa, establish a community development fund administered by the community to address growing deficiences in health, housing, and education, ensure the Batwa are given priority for employment opportunities in the National Park, engage in regular dialogue with the Batwa, adopt national legislation on the rights of Indigenous peoples, make a full public apology to the Batwa people, recognize the Batwa as citizens of the DRC, provide training on national and international human rights to ICCN administrators and park rangers, and to publicise the present decision.

Country

Democratic Republic of Congo

Outcome: Decided on Merits

Year Decided: May 13, 2022

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 1: General Obligations
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 17: Right to Education
ACHPR 2: Freedom from Discrimination
ACHPR 21: Right to Free Disposal of Wealth and Natural Resources
ACHPR 22: Peoples' Right to Economic, Social and Cultural Development
ACHPR 24: Right to a General Satisfactory Environment
ACHPR 4: Right to Life and Integrity
ACHPR 8: Right to Freedom of Conscience

Rights Violated (ACHPR Provisions)

ACHPR 1: General Obligations
ACHPR 14: Right to Property
ACHPR 16: Right to Health
ACHPR 17: Right to Education
ACHPR 17.2: Freedom to Participate in Community Cultural Life
ACHPR 17.3: Promotion/Protection of Community Values
ACHPR 2: Freedom from Discrimination
ACHPR 21: Right to Free Disposal of Wealth and Natural Resources
ACHPR 22: Peoples' Right to Economic, Social and Cultural Development
ACHPR 24: Right to a General Satisfactory Environment
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 4: Right to Life and Integrity
ACHPR 8: Right to Freedom of Conscience

Duration of Procedure

Nov 7, 2015 ~ May 13, 2022

Country Geolocation

Latitude: -4.038333

Longitude: 21.758664

Country Geolocation (linked ACHPR Decision): Democratic Republic of the Congo

Primary Documents

Minority Rights Group International and Environment Ressources Naturelles et Developpement (on behalf of the Batwa of Kahuzi-Biega National Park, DRC) v DRC.pdf
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African Human Rights CLA 2.0

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Communication 588/15 Minority Rights Group International and Environnement Ressources Naturelles et Développement (on behalf of the Batwa of Kahuzi-Biega National Park, DRC) v. Democratic Republic of Congo (DRC)

Primary Documents

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