Friday, August 28, 2009

Community, Customary Law and Political Stability - New Study in East Africa; New Representation in Australia

Results of a study published this week highlight community-based systems of justice and governance in resolving conflicts between communities in East Africa.

International non-governmental organisation, Minority Rights Group International (MRG), has this week released a report which explains the need to utilise traditional systems for conflict resolution and governance. The study consulted with communities in Karamoja and Teso in Uganda. Simon Nangiro, Executive Director of Karamoja Agro-Pastoralist Development Programme, explains: "Both communities in Karamoja and Teso have their own systems of negotiation and compensation when resolving conflicts." As Nangiro explained to Reuters, "We are advocating to the government to give a place to customary institutions, for elders to play a role in the justice system, because they are the ones living with the people."

Significantly, greater emphasis on traditional systems strengthens trust and belief in negotiations, arguably the basis for the legitimacy of any legal framework. The research established that past abuses by the state had led to mistrust in local communities, eroding the legitimacy of stte intervention. In contrast, community-based mechanisms were established and resilient, despite the external pressures of imposed boundary disputes, competition for land and environmental damage: "interviewees were virtually unanimous in their opinion that these mechanisms are an essential part of conflict and justice regulation in these communities, because they are accessible where often the state is absent, and because, being based on traditional principles of spirituality and peaceful coexistence, the outcomes are respected by community members."

Indeed, the sustainability of communities supported by traditional governance systems resonates with traditional knowledge with respect to environmental and agricultural sustainability, as distinct from adversarial models of justice. The press release explains: "Communities in both Karamoja and Teso, traditionally pastoralists, strive for amicable relations and depend on each other for survival in harsh environmental conditions. Government imposed conditions on their traditional way of life, shortage of resources, problems involving cattle rustling and border disputes have led to increasing conflict between the groups in recent times."

The study follows earlier work by MRG in strengthening traditional community governance structures, including assisting with the establishment of the Regional Elders Council in East Africa. The Interim Council included 13 elders, and was chaired by Eunice Marima. The Council, now composed of 10 elders including 4 women, is chaired by Dr Abdullahi Haji Wako (pictured at right), a member of the Borana community in Kenya, implements traditional systems of conflict resolution for communities in Ethiopia, Uganda, Kenya and Tanzania.

In Australia, a National Representative Body for Aboriginal and Torres Strait Islander peoples has been proposed by the Australian Human Rights Commission in a new report, Our Future in Our Hands. The Steering Committee behind the proposal is led by Social Justice Commissioner Tom Calma (pictured at right), an Aboriginal elder from the Kungarakan tribal group and a member of the Iwaidja tribal group. In his speech at the launch of the report, Calma emphasised the importance of the establishment of a national representative body for Aboriginal and Torres Strait Islander peoples both as a true exercise of self-determination and in terms of national governance: "We have suffered from the absence of a strong national representative organisation over the past five years. And governments have also suffered from the absence of a national body."

Previously, Aboriginal and Torres Strait Islander peoples were represented by the Aboriginal and Torres Strait Islander Commission (ATSIC), which was abolished by the Howard government in 2005, which criticised the Commission for corruption and mis-handling of funds. Some have criticised the proposed replacement, saying that it may not offer appropriate representation for those in remote areas. And already, the independence of the new body is in doubt with Indigenous Affairs Minister, Jenny Macklin, refusing to commit funds to ensure its financial self-sufficiency.

This is amid criticisms this week from the UN Special Rapporteur on Indigenous People, Professor James Anaya, who has described entrenched racism in Australia after his 12 day visit. Anaya has condemned the ongoing intervention into remote indigenous communities, commenced by the Howard government but controversially continued by the new Rudd administration. Although Anaya was congratulatory of Prime Minister Rudd on the 2008 apology to indigenous Australians that was reported around the world, the intervention continues the historical discrimination.

Terri Janke (pictured below left) has recently proposed a national approach in another context, that of indigenous and traditional knowledge. The conflict between conventional intellectual property rights and communal systems of traditional knowledge and cultural expression is well-documented, and calls for sui generis systems of protection have not led to substantial actions towards protection of traditional knowledge, in the Australian context or internationally. Ms Janke, an Indigenous arts lawyer, writer and consultant, has recently produced Beyond Guarding Ground: A Vision for a National Indigenous Cultural Authority. Her report calls for a national authority for indigenous culture, pursuant to Article 31 of the UN Declaration on the Rights of Indigenous Peoples (UN Dec):

Article 31

(1). Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

(2). In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Emphasising the requirement of prior and informed consent, the report provides a model of the procedure for approval to use material, which includes applications to the national authority, the identification of rights-holders and a consideration of the propose use of the material, examination of the application by committee and then a procedures for the granting of consent and the monitoring of the use of the material according to the terms and conditions under which that consent is granted. The model both provides assistance to indigenous right-holders as well as establishes a system by which material can be revived culturally and socially in a secure and appropriate way.

Terri will be delivering a public lecture on the model as part of the 20th Anniversary Celebration of the Jabal Centre, Friday 2 October 2009, Australian National University (ANU).

Robynne Quiggan, indigenous lawyer and quoted in Janke's report, explains with respect to music: "Observing customary law means finding out who can speak for that music."

Giving respect to customary systems of governance within national frameworks ensures that those who can speak are able to speak.

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