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Constitutionalism, ethnicity
and minority rights in Africa:
A legal appraisal from the Great
Lakes region
Jeremie Gilbert*
The last decade has witnessed a constitutional revival in Africa, with several countries adopting
new constitutions. Several of these constitutions have been adopted following serious ethnic tensions, especially in the Great Lakes region. Because of the nature of the ethnic conflicts which were
rooted in the repression of minority communities, the new constitutional frameworks regarding
ethnicity and minority rights are going to be extremely significant for the peace and stability of the
region. By analyzing the recently adopted constitutions of Rwanda, Burundi, and the Democratic
Republic of Congo, this article seeks to examine the extent to which some of the most recently
adopted constitutions of the continent are addressing, or not, the rights of the most marginalized
minority communities. By focusing on the Great Lakes region, this article explores why there is
still a general reluctance towards the recognition of minority rights in most African constitutions.
1. Introduction
In recent years, several African countries have adopted new constitutions leading to what
has been characterized as a “constitutionalism revival.”1 From 2000 to 2010 alone, at
least ten countries have adopted a new constitution.2 As captured by Oloka-Onyango,
[N]ew winds are definitively blowing across the African continent: from Dakar to Dar es
Salaam, from the Cape to Cairo, a resurgence of both popular and elite concern with issues
revolving around governance, statecraft and constitutionalism is clearly discernible.3
* Middlesex University, School of Law. Email: [email protected]. The author would like to acknowledge
the support of the British Academy in undertaking the research for this article. The author wishes to
thank Joshua Castellino and David Keane for comments on an earlier draft of this article.
1
See Henry Kwasi Prempeh, Africa’s Constitutionalism Revival: False Start or New Dawn?, 5(3) Int’l J. Const.
L. 469 (2007)
2
Those include: Côte d’Ivoire (2000), Comoros (2001), Congo (2002), Rwanda (2003), Somalia
(Transitional Charter 2004), Burundi (2004), Mozambique (2004), Sudan (2005), Swaziland (2006),
Democratic Republic of Congo (2006), and Kenya (2010).
3
Joe Oloka-Onyango, Constitutionalism in Africa: Yesterday, Today and Tomorrow, in Constitutionalism In
Africa: Creating Opportunities, Facing Challenges 1 (Joe Oloka-Onyango ed., 2001).
I•CON (2013), Vol. 11 No. 2, 414–437doi:10.1093/icon/mot002
Constitutionalism, ethnicity and minority rights in Africa
415
In parallel to such movement of constitutionalism, the continent has witnessed
some serious ethnic tensions. The Great Lakes region4 has been particularly tormented
by ethnic hatred, as Rwanda, Burundi, and the Democratic Republic of Congo (DRC)
have witnessed genocide, civil wars, and inter-state conflicts.5 All of these events have
been predominately fueled by ethnic tensions that found their roots in the repression
of minority groups. Such repression took the worst form in Rwanda where the Tutsi
minority and moderate Hutus were physically exterminated. Moving away from this
dreadful past, most countries of the region have embarked on a transition to more
stable democratic endeavors. The adoption of new constitutions in Rwanda (2003),
Burundi (2005), and the DRC (2006) have marked an end of the transitions in these
three countries. Due to the recent history of ethnic conflicts, in all three states the
relationship between the different ethnic groups formed a fundamental backdrop to
the constitutional momentum. The aim in each case was to open a new era of power
sharing amongst the different ethnic communities.6
This article examines to what extent the relationship between the different ethnic
communities in these three countries has been effectively realized in the new constitutional design. Based on each case study, the main objective of the article is to examine
the broader issue of minority rights protection in the constitutional design of subSaharan African states. The concept of minority rights remains largely underdeveloped on the continent. Traditionally, a large majority of African states have adopted
an attitude marked by political skepticism and juridical ambiguity towards the rights
of minorities.7 Constitutionally, only a handful of African states have acknowledged
the need to protect the rights of minorities. As noted by Heyns in a recent review of all
the constitutions of Africa: “only three African constitutions protect minority rights
making specific reference to ‘minorities’.”8 These constitutions are those of Cameroon
(preamble), the Democratic Republic of Congo (art. 51), and Uganda (art. 36). Out of
the 48 Sub-Saharan countries, this represents a very small minority of states having
adopted a special legal framework of protection for minorities.9
Geographically, the region of the Great Lakes usually comprises Rwanda, Burundi, north-eastern DRC,
Uganda, and north-western Kenya and Tanzania, but economically and politically it mainly refers to the
Great Lakes Countries Economic Community (CEPGL) which is composed of Rwanda, Burundi, and the
DRC. See generally Jean-Pierre Chretien, L’Afrique des Grands Lacs: Deux mille ans d’histoire [Great Lakes
Africa: Two Thousand Years’ History] (2001).
5
See generally Gerard Prunier, Africa’s World War: Congo, the Rwandan Genocide, and the Making of
Continental Catastrophe (2009); Christian P. Scherrer, Genocide and Crisis in Central Africa: Conflict Roots,
Mass Violence, and Regional War (2002).
6
See René Lemarchand, Consociationalism and Power Sharing in Africa: Rwanda, Burundi, and the Democratic
Republic of the Congo, 106(422) Afr. Affairs 1 (2006); Stef Vandeginste, Théorie consociative et partage du
pouvoir au Burundi in L’afrique des Grands Lacs, Annuaire 2005–2006, at 175 (F. Reyntjens & S. Marysse
eds., 2006); Denis Tull & Andreas Mehler, The Hidden Costs of Power-sharing: Reproducing Insurgent Violence
in Africa, 104(416) Afr. Affairs 375 (2005).
7
See Lo Gourmo, Identité et Statut des Minorités en Afrique, in Droit, Culture et Minorités 355 (Arnaud De
Raulin, Sidi Mohamed Ould Abdallahi, & Gourmo Lo eds., 2009).
8
C. Heyns, Constitutional Human Rights Law in Africa, 22 S. Afr. J. Hum. Rts. 674 (2006).
9
Official documents usually list 47 countries in Sub-Saharan Africa, but South Sudan by becoming independent in July 2011 became the 48th country.
4
416
I•CON 11 (2013), 414–437
Before undertaking a review of the reasons for the inclusion or not of minority rights,
it is necessary to first establish what is meant by minorities and minority rights. While
there is no generally accepted legal definition of minority, several elements for such a
definition have been put forward. At the United Nations level, the proposed definition by
Special Rapporteur Capotorti is often viewed as authoritative. It defines a minority as:
a group, numerically inferior to the rest of the population of a State, in a non-dominant position, whose members—being nationals of the State—possess ethnic, religious or linguistic
characteristics differing from those of the rest of the population and show, if only implicitly, a
sense of solidarity, directed towards preserving their culture, traditions, religion or language.10
Likewise, the 1992 United Nations Minorities Declaration in its article 1 refers to
minorities as based on national or ethnic, cultural, religious, and linguistic identity,
and provides that states should protect their existence. There are several other working
definitions of minorities, all of which present slight differences but by and large all the
definitions put forward the same main characteristics.11 Minorities are groups who are
ethnically, religiously, or linguistically different from the rest of the society and who are
non-dominant in that society. More subjectively, another important factor to take into
consideration is the wish of the minorities to preserve their own specific identity.
Minority rights aim at ensuring the right of the minorities to preserve and enjoy
their own culture while also having the right to participate, on an equal footing, in
the political, economic, and social life of the society at large. While the standards of
non-discrimination and equality are crucial, they constitute only the first pillar of the
protection of minorities. The second pillar goes a step further by providing minorities
with the right to practice their own religion, develop their own culture, and use their
own language. The aim is to ensure that minorities have the right to enjoy their own
identity, in other words the right to be treated equally while remaining different. The
right to remain different constitutes the quintessence of minority rights. This dual
approach to minority rights is reflected in the “equality approach” versus the “minority rights approach” adopted in the constitutional design of most states. The “equality
approach” favors a strong legal affirmation of the principle of equality and the prohibition of discrimination to ensure that all ethnic groups are treated equally. The other
approach, the “minority rights approach,” argues that an attitude based on equality
and non-discrimination is not enough to ensure the protection of minority communities, and instead favors the establishment of legal norms to protect and promote the
respect of cultural, ethnical, linguistic, and religious differences.12 This article aims at
Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities UN Doc. No. E/
CN.4/Sub.2/384/Add.1–7 (1977)
11
For review and analysis, see José Bengoa, Existence and Recognition of Minorities, UN Doc. E/CN.4/Sub.2/
AC.5/2000/WP.2; Timo Makkonen, Identity, Difference and Otherness: The Concepts of “People,” “Indigenous
People” and “Minority” in International Law (Erik Castrén Institute Research Reports 7/2000 Forum Iuris,
Helsinki 2000).
12
For a discussion of these two approaches, see Kristin Henrard, The Right to Equality and Non-discrimination
and the Protection of Minorities in Africa, in Perspectives on the Rights of Minorities and Indigenous Peoples in
Africa 207 (Solomon Dersso ed., 2011)
10
Constitutionalism, ethnicity and minority rights in Africa
417
examining how these two approaches have been translated and favored in the constitutional design of the sub-Saharan African states.
While most, if not all, African countries do have specific protection to ensure equality and non-discrimination in their constitutions, very few have taken the next step
which is to adopt a minority rights approach. The need to address the right of minorities to enjoy their own culture and have access to power has been crucially highlighted
by recent events, which have put forward the question of ethnicity in the constitutional arrangement of several African states. This includes ethnical division in Sudan
which resulted in the separation of South Sudan after decades of repression; the
recent implosion of previously peaceful Ivory Coast; the post-electoral ethnic violence
in Kenya; or the ongoing fratricidal violence against minorities in Nigeria. The list
could be extended as, to some extent, all recent ethnic violence has been largely driven
by either the repression of minorities or the rebellion of minorities against oppression.
From this perspective, the situation in the Great Lakes Region offers a tragic illustration of the intricate connection between ethnic violence and the lack of protection for
minorities.
This article focuses particularly on the Great Lakes Region to analyze how some
of the most recent constitutions have dealt with the issue of ethnic minorities in
countries which had witnessed the most horrific ethnic hatred. The recent decades
of ethnically driven conflict instigated by the repression of minorities are therefore
the primary reason for focusing on the Great Lakes Region. Secondly, in Rwanda,
Burundi, and the DRC, the adoption of a new constitution marked the end of a transitional period from conflict to peace, and as such, the new constitutions were seen as
crucial legal instruments to organize the new ethnical relations under the banner of
consociationalism.13 Third, in terms of methodology, the region offers a good platform
for comparing countries that have adopted very different constitutional approaches to
the issue of ethnicity: from the absolute ban on the use of ethnic markers in Rwanda,
through a carefully crafted ethnical power sharing arrangement in Burundi, to full
constitutional protection for minorities in the DRC. The examination of these three
different approaches will provide a good snapshot of the relationship between ethnicity and constitutional minority protection. Based on an analysis at the national level,
this article will go on to examine the historical, theoretical, and objective contentions
towards the affirmation of constitutionally embedded protection clauses for minorities. Ultimately, the overall aim of the article is to examine to what extent the concept
of minority rights is relevant in the context of Africa.
2. Rwanda: Banning ethnicity
The constitutional history of Rwanda is marked by its association with ethnicity. The
post-independence constitutions of 1962, 1973, and 1991 were all seen as legal
instruments that imposed the domination of the Hutus over the political affairs of
Lemarchand, supra note 6.
13
418
I•CON 11 (2013), 414–437
the country.14 Until the tragic events of 1994, the constitutions offered tools to support one of the dominant ethnic groups to maintain its control of power. As noted by
Senator Wellars Gasamagera: “the Constitutions were tailored to suit aspirations of
those in power at such particular times of Rwanda history.”15
In a stark contrast to the former close interlinking of ethnicity and constitutionalism, the post-genocide Rwandan Constitution of 2003 rejects any mention of ethnicity. The new Constitution, which is the result of a transition period
lasting nine years, affirms in its preamble that the government is determined to
eradicate all ethnic division. The constitution aims at promoting national unity
by supporting the elision of concepts of ethnicity. This is declared in article 9 of
the Constitution which affirms that the government of Rwanda commits itself to
the “eradication of ethnic, regional and other divisions and promotion of national
unity.”
The strongest element supporting the aim of eradicating ethnicity is found in article
54 which prohibits any form of association between ethnicity and political parties.
Article 54 states: “[P]olitical organizations are prohibited from basing themselves on
race, ethnic group, tribe, clan, religion, sex, religion or any other division which may
give rise to discrimination.” The rationale behind the ban is that a reference to ethnicity might create division and run contrary to the ongoing national policy of unity
and reconciliation. Given the historical association between politics and ethnicity
this article aims to ban any association of the two. In a similar perspective, article 33
which guarantees freedom of religion also prohibits any ethnic or racist propaganda.
Likewise, article 35 which guarantees freedom of association affirms that any association may be banned if it has an ethnic basis.
The secondary aim of promoting national unity is inscribed in several articles of
the Constitution. The preamble highlights Rwanda’s privilege of possessing a common language, shared culture, and a long history. Several articles of the Constitution
contribute to the elaboration of a program promoting national unity. Article 50
affirms that all citizens have the right to take part in activities aiming at the promotion of the national culture, and establishes the “Rwandese Academy” to support the
development of language and culture. Article 168 establishes the “National Council
of Dialogue” which meets at least once a year to address issues relating to the power of
the local council and national unity. Article 178 provides for an independent national
institution in charge of promoting the unity of the country.16 The “National Unity
and Reconciliation Commission” has the mandate of supporting “ways and means to
restore and consolidate unity and reconciliation among Rwandans.” The Commission
For an analysis, see: Bibiane Gahamanyi-Mbaye, Culture, Ethnicity and Citizenship: Reflections on Senegal
and Rwanda, and Jean-Marie Kamatali, Ethnicity and Constitutionalism in Post-Genocide Rwanda, in
Constitutionalism in Africa, supra note 3, 103.
15
See Senator Wellar Gasamagera, The Constitution Making Process in Rwanda: Lessons to Be Learned, Paper
presented at the 7th Global Forum for Reinventing Government, Vienna, June 26–29, 2007.
16
A national commission to promote the unity of the country was part of the 1993 Arusha agreement and
a 1999 law established the National Unity and Reconciliation Commission.
14
Constitutionalism, ethnicity and minority rights in Africa
419
has adopted several strategies including training for community groups to support
national social cohesion.17
Besides the constitutional ban on the creation of ethnically identifiable political parties, associations, or religious groups and the constitutional goal of promoting unity,
the Constitution also expresses a strong guarantee for equality and non-discrimination. Article 11 states:
[D]iscrimination of whatever kind based on, inter alia, ethnic origin, tribe, clan, colour, sex,
region, social origin, religion or faith, opinion, economic status, culture, language, social status, physical or mental disability or any other form of discrimination is prohibited and punishable by law.18
Likewise, article 46 affirms that all citizens have a duty to treat each other without discrimination. The principle of non-discrimination is identified as a constitutional pillar in support of the aims of unity and the eradication of ethnic divisions.
On a theoretical front, Rwanda places itself on the side of states that have adopted an
approach based on non-discrimination and equality when it comes to ethnicity.19 One
could argue that the strong constitutional affirmation of equality and the ban on discrimination will act as a powerful legal tool to ensure that the ethnic question remains
under control. If people and communities are not discriminated against based on their
identity, then ethnic markers might just go away.
The only noticeable special measure of minority protection concerns access to the
Senate. Article 82 of the Constitution establishes that out of the 26 members of the
Senate, eight should be appointed by the President of the Republic to “ensure the
representation of historically marginalized communities.” While article 82 does not
guarantee access to politics to members of minority groups, it nonetheless remains
the only direct recognition that some communities have been historically marginalized. Outside this minimal reference to historical marginalization, the governmental
project of banning any reference to ethnicity is upheld by the Constitution. Overall,
the Constitution supports the official policy of the total eradication of anything having to do with ethnic identification and the maturation of unity. Instead, the principal message of the new Constitution is not so much that Rwanda is pluri-ethnic, but
rather that Rwanda is a non-ethnic state.
The recent ethnic bloodshed certainly gives serious justification to this ban on ethnicity. The attitude of the present Constitution of banning ethnicity in politics, promoting unity, and ensuring equality can be viewed as a legally pragmatic approach
to the question of ethnicity. On questions of ethnicity there are two distinct camps in
post-genocidal Rwanda: one supports the view that there is and ought to be no ethnic
distinction between Tutsis and Hutus, and that any attempt to differentiate between
the groups is a reification of the colonial strategy of divide-and-rule. The other holds
For a review of the Commission’s work, see Institute for Justice and Reconciliation, Evaluation and Impact
Assessment of the National Unity and Reconciliation Commission (NURC), Final Report, December 2005.
18
An English version of the Constitution is available at http://www.amategeko.net/index.
php?&Parent_ID=7796.
19
Ironically, this attitude favoring equality over ethnicity is internationally viewed as the French approach.
17
420
I•CON 11 (2013), 414–437
that ethnic distinctions are real, and that avoiding their recognition might only lead
to more bloodshed.20 Some voices have started to wonder if the ban on ethnicity is
sustainable, or even realistic. In the words of Mgbako:
Rwanda remains a society in which many (if not most) Rwandans still cling to the idea of ethnicity, despite the havoc and destruction that this concept has wreaked. Ethnicity is a powerful
idea; it cannot simply be talked out of existence.21
Knowing that in reality ethnicity is still a predominant driving force in politics, the
statement appears particularly acute. As highlighted by Minority Rights Group:
The current government’s attitude that everyone is Rwandan and there are no minority ethnic groups in the country does not address the deep rooted tensions that continue to exist in
Rwandan society. In fact, it allows a situation to develop in which a group can enjoy a de facto
situation of privilege, but people are not allowed to challenge it. This provides fertile ground
for frustrations which can be exploited by movements wishing to challenge the state through
violence.22
In this debate on ethnicity and constitutionalism, one wonders if the legal ban on
all things ethnic is not particularly problematic when studying the situation of the
most marginalized ethnic community of the country, the Batwa.23 The situation of
the Batwa, Rwanda’s third ethnic group, provides a real test on the constitutional
approach to ethnicity and the rights of the non-dominant groups.
The Batwa have been largely forgotten in the constitutional project despite having
also suffered a great deal during the genocide. While much has been written on the
relationship between Hutus and Tutsis in the region, the Batwa community remains
excluded. It is estimated that in 1994 the community made up only approximately 0.4
percent of the total population of the country, but it has been estimated that up to 30
percent of the Batwa were killed or died as a consequence of the genocide and ensuing
war.24 Despite such numbers, the Batwa have not been integrated in the process of reconciliation and unity.25 More generally, the Batwa remain oppressed and marginalized
as Rwanda adopts a bi-cultural approach to the transition; excluded from the national
project, the Batwa face serious discrimination in access to education, healthcare, and
land rights. Beyond the difficulty for the Batwa to get representation, the absolute ban
on ethnicity has profound consequences on the advancement of their rights.
For an overview on these two camps, see Nigel Eltringham, Accounting for Horror: Post-Genocide Debates In
Rwanda (2004).
21
Chi Mgbako, “Ingando” Solidarity Camps: Reconciliation and Political Indoctrination in Post-Genocide Rwanda,
18 Harv. Hum. Rts. J. 201 (2005)
22
Minority Rights Group International, Report to the Human Rights Committee: Country Report Task Force:
Rwanda, Human Rights Committee, 94th Session, Oct. 13–31, 2008.
23
The Batwa (or Twa) are most commonly referred to as Pygmies. However, the term is also attached to
pejorative connotations. On the Batwa, see Jerome Lewis, Batwa Pygmies of the Great Lakes Region (2000);
Central African Hunter-Gatherers in a Multidisciplinary Perspective: Challenging Elusiveness (K. Biesbrouck,
S. Elders, & G. Rossel eds., 1999).
24
See Judy Knight & Jerome Lewis, The Twa of Rwanda: Assessment of the Situation of the Twa and Promotion
of Twa Rights in Post-War Rwanda (1995).
25
See Susan Thomson, Ethnic Twa and Rwandan National Unity and Reconciliation Policy, 21 Peace Rev. J. Soc.
Just. 313 (2009).
20
Constitutionalism, ethnicity and minority rights in Africa
421
The constitutional ban on ethnicity means that no specific program can be put
in place to address their marginalization. With no proper legal framework, there is
little chance of the Batwa cause being promoted, and even less of being adequately
addressed. This was highlighted in the 2009 concluding observations of the United
Nations Human Rights Committee (HRC) which expressed its concerns “about the
non-recognition of the existence of minorities and indigenous peoples in Rwanda, as
well as reports that members of the Batwa community are victims of marginalization
and discrimination.”26 The governmental report to the Committee had put forward the
argument that:
given the factors that led to the Rwandan genocide of 1994, . . . the Government refuses to recognize as a category communities seeking to identify themselves as ethnic minorities or groups
that claim to have been born with rights denied to the rest of the population.27
The ever-present danger is that this argument may contribute to continued
oppression and marginalization by the majority, who then find a theoretical justification in rejecting special measures of protection for the most marginalized communities. This perpetuates the cycle of discrimination and marginalization. The
situation of the Batwa shows how a total ban on ethnicity and an anti-minority
rights approach can undermine the fundamental rights of some of the most marginalized communities.
More generally, in terms of constitutional design, the situation of the Batwa in
Rwanda illustrates how the constitutional protection of equality and non-discrimination might not provide enough legal protection for communities who are in a minority
position. As a community, the Batwa are in danger of extinction through not having
the right to practice their own culture. From this perspective, the premises of equality and non-discrimination remain extremely far-flung arguments for a community
which is de facto banned from enjoying and perpetuating its own culture. While the
promotion of unity between the two major communities is understandable, an outright constitutional rejection of minority rights protection can sweep aside a legitimate need for legal protection, with minorities suffering from an extreme ban. In this
situation the lack of recognition of the Batwa’s specific cultural rights probably means
the ineluctable destruction of their culture. Promoting unity between the dominant
ethnic communities should not be seen as running counter to a constitutional recognition that the country includes some “historically marginalized communities” which
are in need of constitutional protection. While Rwanda is not the only country to put
forward the argument that minority rights oppose the goal of unity and equality, such
arguments run contrary to the recent history of a country which had witnessed the
most blatant abuse of minority rights by the majority.
Concluding observations of the Human Rights Committee: Rwanda, UN Doc. CCPR/C/RWA/CO/3 at 5, ¶
22 (May 7, 2009).
27
Rwanda, Third Period Report to the Human Rights Committee: Rwanda, UN Doc. CCPR/C/RWA/3 ¶ 289
(2007).
26
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I•CON 11 (2013), 414–437
3. Burundi: Power sharing versus minority rights
Often designated “false twins,”28 Rwanda and Burundi share a common history
and ethnic makeup. The ethnic fabric of the country is similar to Rwanda’s, with
a population composed of the Hutus (80 percent), the Tutsis (13 percent), and the
Batwa (5 percent).29 While access to power for the Hutus and the Tutsis has been
different in the two countries, they share a parallel history of ethnic conflicts and
violence. In Rwanda, the repression of the minority Tutsi reached its nadir with
the 1994 genocide. Burundi also witnessed decades of extremely high levels of violence between the dominant minority Tutsi and the statistical Hutu majority.30 The
country has witnessed 11 years of intense civil war. The most recent wave of ethnic
fratricide started with the assassination of the president of the Republic belonging
to the Hutu ethnic group in 1993.31 This was followed by a wave of Hutu–Tutsi
violence in which an estimated 300,000 people were killed. The Arusha Peace and
Reconciliation Agreement, signed in 2001, started a period of transition towards
democracy which led to the adoption of a new constitution in 2005.32 The “PostTransitional Constitution” was approved by a referendum held on February 28,
2005. The new constitution guarantees representation for both ethnic groups
(Hutus and Tutsis) by establishing a quota of posts they will have in parliament, the
government, and the army.
As in Rwanda, the issue of ethnicity was at the heart of the Burundi Constitution.
Despite the similarities, the two countries have adopted radically different
approaches to the ethnic question in their constitutional design. Rwanda opted for
the full rejection of ethnicity by banning mention of ethnicity in political and legal
affairs. Burundi moved towards power sharing with the aim of establishing a political balance between the Hutus and the Tutsis. When it comes to minority rights,
Burundi fully deserves its designation as Rwanda’s “false twin.” Burundi’s new constitutional framework is based on the explicit recognition of ethnicity and minority
rights.
The preamble of the Constitution affirms the will to move away from ethnic tensions by declaring the unshakeable determination to put an end to the causes of ethnic violence, genocide, and exclusion. The preamble establishes that “the protection
and the inclusion of ethnic, cultural and religious minority groups in the system
See Christian P. Scherrer, Genocide and Crisis in Central Africa: Conflict Roots, Mass Violence, and Regional
War (2002).
29
Report of the African Commission’s Working Group on Indigenous Populations/Communities, Research
and Information Visit to the Republic of Burundi, March–April 2005. The last census was in 1978, and
the last census that surveyed ethnicity took place in the 1930s. See also D. Jackson, Twa Women, Twa Rights
in the Great Lakes Region of Africa (2003); Lewis, supra note 23.
30
See René Lemarchand, Burundi: Ethnic Conflict and Genocide (1995).
31
See id.
32
For an analysis of the process, see Devon Curtis, Transitional Governance in the DRC and Burundi, in Interim
Governments: Institutional Bridges to Peace and Democracy? 171 (Karen Guttieri & Jessica Piombo eds.,
2007); see also Filip Reyntjens, Briefing: Burundi: A Peaceful Transition After a Decade of Civil War?, 105
(418) Afr. Affairs 128 (2006).
28
Constitutionalism, ethnicity and minority rights in Africa
423
of good governance”33 is an essential element to reach this goal. The preamble also
affirms the need for re-structuring the national security and justice systems to guarantee the security of all, including ethnic minorities. Article 1 affirms that Burundi is
an independent, sovereign, secular, democratic, unitary Republic which respects its
ethnic and religious diversity. Article 14 states that all Burundians have the right to
live in Burundi in peace and security, and that all Burundians should live together in
harmony while respecting human dignity and tolerating their differences.34
Despite the acknowledgment that addressing ethnic tensions is necessary to ensure
peace and stability, Part 1 of the Constitution (arts. 21–61), which is dedicated to the
fundamental rights of citizens, does not provide any specific rights for ethnic minorities. This part includes standard human rights protection for specific groups such as
women and children but falls short of providing specific rights for minorities. Part 2,
dedicated to the duties and obligations of citizens, invites all citizens to respect each
other without any discrimination. Article 67 affirms that all citizens have the duty
to respect each other without discrimination and to promote tolerance among each
other. However, this remains an obligation of citizens. Thus, despite the strong declaration in the preamble of the Constitution for the protection of minority groups (the
word “minority” appears three times), the Constitution does not guarantee any specific constitutional rights to minorities, such as access to education or cultural rights.
The main focus of the Constitution is on organizing the power sharing arrangement. It guarantees proportional representation to all the ethnic groups: it prescribes
that the National Assembly be composed of 60 percent Hutus and 40 percent Tutsis.
Ethnic quotas are also used for representation in the executive, the administration and
the military.35 The constitution sets aside three seats in the National Assembly (out of
118) and three seats in the Senate for members of the Twa community. The constitution also guarantees proportional representation to all ethnic groups at local level.
Taking an absolute opposite approach to that of Rwanda, the Burundi Constitution
“institutionalized ethnicity as a criterion for participation in the state.”36
Nonetheless, the exclusive focus on political representation falls short of providing
a proper constitutional framework for the protection of minority rights. For a marginalized community such as the Batwa, the concept of political representation remains
out of reach. Ironically, while the Batwa have benefited from power-sharing constitutional arrangements by getting seats in political state institutions, the political representation fails to address the entrenched issues of extreme marginalization of the
The official French versions reads: “La protection et l’inclusion des groupes ethniques, culturels et religieux minoritaires dans le système général de bonne gouvernance.” A translation is available in 3 Rudiger
Wolfrum & Rainer Grote, Constitutions of the Countries of The World. Republic Of Burundi (November 2005).
34
The official French versions reads: “Tous les burundais ont le droit de vivre au Burundi dans la paix et
dans la sécurité. Ils doivent vivre ensemble dans l’harmonie, tout en respectant la dignité humaine et en
tolérant leurs differences.”
35
For more analysis on this issue, see Patricia Daley, Ethnicity and Political Violence in Africa: The Challenge to
the Burundi State, 25 Pol. Geography 657 (2006).
36
Åshild Falch & Megan Becker, Power Sharing Agreements in Peace Building Burundi: Power-Sharing Agreements,
Negotiations and Peace Processes 28 (2008).
33
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I•CON 11 (2013), 414–437
Batwa. As noted by Amani: “[D]ue to stereotyping and marginalisation the Batwa are
not involved in public life. Despite positive progress made recently, they rarely attend
political or religious gatherings.”37 The Constitution fails to address the critical issues
faced by the Batwa. The general discrimination towards the Batwa directly affects their
access to land rights and education. Access to education is a central issue as, “despite
governmental adopted policy and some tangible progress made so far in the schooling
of Batwa children, major constraints of a normative, economic, and structural nature
do impede real change.”38 A full integration of a minority-rights framework regarding
cultural rights is lacking. The absence of constitutional commitments to tackle these
issues reflects the general embedded discrimination towards the Batwa.
In terms of constitutional design, one of the lessons from Burundi to bear in mind
is that power sharing is not to be taken as a synonym of minority rights. Behind the
façade of entrenching minority rights, the Constitution is predominantly concerned
with political arrangements between the two dominant ethnic groups, and the nondominant minority communities are left out of these carefully drafted constitutional
arrangements. While consociationalism addresses the main issue of power sharing
among the dominant ethnic groups,39 the question of minority rights goes significantly further. The overall objective of consociationalism remains political in ensuring both sharing and access to power for the different ethnic groups. The rights of
minorities go a step further by focusing on the obligation of governments to ensure
that ethnic minorities can use their own language, practice their own culture and
religion, and enjoy some form of autonomy.40 While the power-sharing agreements
which allowed the development of a new constitution were the first steps of the constitutional process, the next step is to design specific protection for marginalized minorities. This next step hasn’t been taken in Burundi, despite the fact that the country’s
recent history has shown how the lack of legal protection of minorities could easily
lead to serious ethnic tensions.
4. The Democratic Republic of Congo: The ethnic
conundrum
The DRC offers a particularly intriguing case study in terms of understanding
the dynamics between ethnicity and constitutionalism. The third largest African
Jean-Pierre Amani, Historical Developments in Burundi’s Land Law and Impacts on Batwa Land Ownership 5
(2009).
38
Hermenegilde Rwantabagu, Problems and Prospects in the Education of a Marginal Minority: The Case of the
Batwa Community in Burundi, 3(2) Diaspora, Indigenous, & Minority Education 110 (2009).
39
See Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (1977); Arend Lijphart,
Constitutional Design for Divided Societies, 15(2) J. Democracy 96 (2004); John Mcgarry & Brendan O’leary,
The Politics of Ethnic Conflict Regulation: Case Studies of Protracted Ethnic Conflicts (1993); Sid Noel, Jr.,
From Power Sharing to Democracy: Post-Conflict Institutions in Ethnically Divided Societies (2005); Arend
Lijphart, Thinking About Democracy: Power Sharing and Majority Rule in Theory and Practice (2008).
40
See generally Patrick Thornberry, International Law and the Rights of Minorities (1991); 1 Gaetano
Pentassuglia, Minorities in International Law (2002).
37
Constitutionalism, ethnicity and minority rights in Africa
425
country, it presents a complex jigsaw puzzle of ethnicities sharing the same territory. Its 68 million inhabitants make up over 250 ethnic groups, including several
minority groups such as Kasaians, Banyarwanda, Hunde, Nyanga, Nande, Bangala,
Batwa, and Bambuti. This ethnical puzzle has given rise to both a resonant and
tragic history.
Since gaining independence in 1960, the country has been confronted with per­
sistent ethnic conflict, including the Katangese independence movement, tribal
clashes in the Eastern Provinces, and two recent civil wars. Repercussions from the
Rwandan genocide started the “First Congo War” (1996–97) which spread the violence between the Hutus and the Tutsis into the territory of the DRC.41 At the heart of
the “Second Congo War” (1998–2003) was inter-communal violence in the eastern
regions of the Congo.42 While it is clear that the bid to control the vast natural wealth
of the country has been fueling the conflicts, ethnicity has been at the heart of the
violence since independence.
The signing of the Pretoria Accord in 2002 paved the way towards the adoption of a
new constitution. The agreement affirmed that “all the Congolese minorities, whether
ethnic, religious or linguistic, are protected in a general human rights framework in
accordance with the legislation in force and the international instruments ratified by
the Democratic Republic of the Congo.”43 Based on this affirmation, article 14 of the
transitional Constitution provided that “all ethnic groups and nationalities, which
make up the people and territory of what has become the Congo [now the Democratic
Republic of the Congo] upon independence, shall enjoy equal rights and protection
under the laws as citizens.”44
The new Constitution was adopted by the transitional legislature in May 2005
and was later ratified by the electorate in a referendum held in December 2005. The
Constitution came into effect in 2006. The Constitution makes two specific mentions
of minority rights. Article 13 of the Constitution, which spells out the principle of
non-discrimination, specifically mentions ethnic minority groups. It states that no
Congolese individual should face discrimination in access to education or public
The Hutus (Mai Mai) and the Tutsis (Banyamulengues) have been living in the Congo for centuries following migrations movements that pre-date colonization. See Mwaylia Tshiyembe, Refondation de la Nation
et Nationalité en Republique Democratique du Congo [Reconstruction of the Nation and Nationality in the
Democratic Republic of Congo] (2007).
42
The conflict which has involved several countries: Rwanda, Burundi, DRC, from 1997 to 2005 has
claimed the lives of more than 3.8 million Congolese. See L. Roberts, P. Ngoy & C. Mone et al., Mortality
in the Democratic Republic of Congo: Results From A Nationwide Survey (2002); B. Coghlan, R. J. Brennan,
P. Ngoy, D. Dofara, B. Otto, M. Clements, & T. Stewart, Mortality in the Democratic Republic of Congo:
A Nationwide Survey, 367 (9504) Lancet 44 (2006). See also Office of the High Commissioner for Human
Rights, Report of the Mapping Exercise Documenting the Most Serious Violations of Human Rights and
International Humanitarian Law Committed Within the Territory of the Democratic Republic of the Congo
Between March 1993 and June 2003 (United Nations, Aug. 2010).
43
Global and Inclusive Agreement on the Transition in the Democratic Republic of Congo. Signed in
Pretoria, Dec. 17, 2002.
44
The Constitution of the Transition of the Democratic Republic of Congo, 2003. Translation available in 5
Rudiger Wolfrum & Rainer Grote, Constitutions of the Countries of the World. Democratic Republic of Congo
(Mar. 2006)
41
426
I•CON 11 (2013), 414–437
functions by reason of belonging to a cultural, ethnic, or linguistic minority.45 The
constitution goes further by adopting a full minority rights agenda. Article 51 affirms
that one of the principal missions of the government is to promote the coexistence
of all ethnic groups in the DRC by ensuring the protection of minorities. This article
establishes a duty for the government to ensure the protection of vulnerable groups
and of all minorities. Article 51 adds that the government not only has a duty to protect, but that it should ensure the promotion and the advancement of minorities.46
From this perspective, the Constitution offers a rare example of a clearly identifiable
constitutional duty for the state to protect its own minorities and to ensure their
development.
Despite this constitutional obligation, the government approach to minority rights
has shown some serious contradictions between the constitutional framework and the
reality. The constitutional guarantee for minority rights has so far been meaningless. It
could be argued that the constitution was adopted in 2006 and that it would take time
for the government to deliver on its constitutional obligations regarding minorities.
The quasi-permanent conflict situation in the north-eastern regions of the country
is another reason that could justify the lack of delivery.47 However, these arguments
are not put forward by the government, which instead insist that, despite the constitutional affirmations, the notion of minority rights is not relevant to the country.
The submission of the country’s report to the UN Committee on the Elimination of
Racial Discrimination (CERD) in 2007 has underscored the contradiction between the
constitutional affirmation in article 51 and the lack of concrete measures of actions
for the protection of the minorities into perspective. During the dialogue between the
governmental delegation and CERD, a member of the delegation affirmed that: “the
term ‘minority,’ as used in the Constitution, was a purely quantitative term, referring to groups which were small in number, not to their ethnic composition.”48 This
The official French version reads:
45
Aucun Congolais ne peut, en matière d’éducation et d’accès aux fonctions publiques ni en aucune autre
matière, faire l’objet d’une mesure discriminatoire, qu’elle résulte de la loi ou d’un acte de l’exécutif, en
raison de sa religion, de son origine familiale, de sa condition sociale, de sa résidence, de ses opinions ou
de ses convictions politiques, de son appartenance à une race, à une ethnie, à une tribu, à une minorité
culturelle ou linguistique.
A translation is available in Wolfrum & Grote, supra note 44.
The official French version talks about a duty of ensuring the “development” of the minorities. It reads:
46
L’État a le devoir d’assurer et de promouvoir la coexistence pacifique et harmonieuse de tous les groupes
ethniques du pays. Il assure également la protection et la promotion des groupes vulnérables et de toutes
les minorités. Il veille à leur épanouissement.
It is worth noting that the minorities are disproportionately impacted by the conflict in the region. See
Réseau des Associations autochtones Pygmées du Congo (RAPY) & Minority Rights Group International (MRG),
“Erasing The Board”: Report of the International Research Mission into Crimes under International Law
Committed against the Bambuti Pygmies in the Eastern Democratic Republic of Congo (2004).
48
Summary Record of the First Part Public Meeting between CERD and the DRC, 1828th Meeting, Aug.
7, 2007, UN Doc. CERD/C/SR.1828, ¶ 4 (see comments by Mr. Lokwa Ilwaloma) [hereinafter Summary
Record].
47
Constitutionalism, ethnicity and minority rights in Africa
427
affirmation sheds a light on the reluctance of the government to recognize minority
rights despite its constitutional legal obligation. Ultimately, the government is refusing
to recognize the very existence of minorities. There is a clear contradiction between
article 51 of the Constitution, which establishes a duty to ensure the protection and
advancement of minorities, and the government affirmation that there are no minorities in the country.
The dialogue taking place at the UN level between the government and the CERD
shows a serious dichotomy between the constitutional affirmation of minority rights
and the governmental approach to the issue.49 It demonstrates reluctance towards the
concept of minority rights. One of the central justifications developed by the delegation was that ensuring specific rights for specific groups would go against the goal of
unity enshrined in the Constitution.50 Part of the argument is that providing such special rights to specific groups would create “privileges” and go against the ultimate goal
of national unity. Hence, despite the constitutional affirmation of minority rights,
the government is arguing that such recognition will go against the aim of unity and
equality.
Many of the states resisting the recognition of minority rights put forward the argument that such rights create a category of “privileged” rights holders, since these are
rights that other groups, not in a minority position, would not have. This misconception of minority rights fails to grasp their essence, which is to establish equality vis-à-vis
members of the dominant society, rather than providing privileged rights, and to recalibrate the balance that always favors dominant groups. While the DRC has clearly
adopted a different approach to minority rights by being one of the few countries on
the continent to mention minority rights in its constitution, it nonetheless shares with
other states similar attitudes to minority rights. In many ways, the approach of the
DRC government is comparable to the agenda adopted by Rwanda which views ethnicity (and minority rights) as going against the goal of unity by focusing on ethnically
based rights. This argumentation against the establishment of specific rights for ethnic minorities is common to most African states. It principally relies on the fact that
rights for minorities go against the unity of the country by supporting “tribalism” and
creating “privileged” legal entitlements—an approach which has strong echoes in the
colonial history of the continent.
5. Tribalism, colonialism and nation-state building
The issue of ethnic identity and affiliation has, paradoxically, been both a marginal
and a central feature in the colonization of Africa. It is equally clear that despite its
prominence in African societies, the issue of ethnicity has been largely negligible in the
drawing of borders.51 Colonialism paid little attention to existing ethnic allegiances,
See the Concluding observations of the Committee on the Elimination of Racial Discrimination:
Democratic Republic of Congo, UN Doc. CERD/C/COD/CO/15 ¶ 14 (2007).
50
Id.
51
See Joshua Castellino & Stephen Allen, International Law and Title to Territory: A Temporal Analysis (2003).
49
428
I•CON 11 (2013), 414–437
with colonial powers instead defining borders based on their own interests.52 The
“sphere of influences,” which contributed greatly to the design of most of the contemporary borders, was not based on historic ethnic lines but rather on the colonial
powers’ interests and visions of identity across the continent. Hence maps were drawn
in Paris, London, or Brussels, with no consideration for the preexisting borders, especially ethnic markers, in the colonial enterprise. As noted by Griffiths:
The use of physical features (rivers and river basins, 46 per cent) and geometric lines (48 per
cent) dehumanized the boundaries of Africa. Only rarely did they coincide with culture or
ethno-linguistic areas. Every boundary in Africa cuts through at least one culture area. . . .
Boundary lines and nation states are alien concepts imposed on Africa. The lines were drawn
with a general disregard for local human factors and an incomplete knowledge of the chosen
physical features, so that problems and ambiguities, often the cause of strife, were inevitable.53
The maps drawn up by the colonial powers have been largely preserved in post-colonial Africa. This legacy was perpetuated by international norms such as uti possidetis
under which the borders were maintained throughout the decolonization process.54
Consequently, several ethnic communities still find themselves divided by international borders established with total disregard for ethnicity. This creates a dichotomy
between ethnicity and a state’s territorial existence with different ethnic tribes and
cultures grouped under a single political entity. Such dichotomy between ethnicity
and territoriality is bound to have consequences on the contemporary constitutional
design of most African states.
While ethnicity was largely absent from the physical division of the sphere of influences, it was central to the political program of the colonial powers. Ethnic identities
had been widely used to support the political dominance of the colonial administration. Although strong political entities and kingdoms existed throughout the continent, colonial powers pretended that Africa was under the domination of “tribes.”55
This “tribalism” perpetuated the idea that local populations were living in apolitical
and stateless societies. The aim was largely to use the notion of “tribes” both to ignore
existing political powers and to “divide and conquer.”56 With few degrees of variation, colonial administrations relied on selected local rulers to impose their own will,
and in this process they created false identity markers to justify the control of some
of those rulers.57 By treating some specific ethnic groups with preference and using
them against other groups, colonial powers established disparities among ethnic
See Ian Brownlie, African Boundaries: Legal and Diplomatic Encyclopaedia (1st ed. 1979).
Ieuan Ll. Griffiths, The Atlas of African Affairs 69 (2d ed. 1994).
54
On this issue, see S. Ratner, Drawing a Better Line: Uti Possidetis & the Borders of New States, 90 Am. J. Int’l L. 590
(1996); M. Shaw, The Heritage of States: The Principle of Uti Possidetis Juris Today, 67 Brit. Y.B. Int’l L. 67 (1996).
55
See generally 1 Colonialism in Africa, 1870–1960. The History and Politics of Colonialism, 1870–1914 (L.H.
Gann & Peter Duignan eds., 1969). See also H.S. Wilson, The Imperial Experience in Sub-Saharan Africa Since
1870 (1977); Cheikh Anta Diop, Precolonial Black Africa (1987).
56
See Paul Mercier, On the Meaning of ‘Tribalism’ in Black Africa, in Africa: Social Problems of Change and
Conflict 483 (Pierre L. Van Den Berghe ed., 1965); Aristide R. Zolberg, Tribalism through Corrective Lenses,
51(4) Foreign Affairs 728 (1973).
57
See Robert H. Jackson & Carl G. Rosberg, Personal Rule in Black Africa: Prince, Autocrat, Prophet, Tyrant
(1982); Siba N’zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in
International Law (1996).
52
53
Constitutionalism, ethnicity and minority rights in Africa
429
communities which have significant resonances on contemporary ethnic politics
across the continent. In some circumstances, colonial anthropologists, missionaries,
and colonial administrators even “created” ethnic groups.58 Arguably, the most tragic
consequences of such “tribalization” were visible in Rwanda where the colonial legacy
of distinguishing between the Hutus and the Tutsis has been regarded as one of the
ingredients that led to genocide.59 By playing on the “tribal” identity, it is certain that
colonial powers played a role in the crystallization of ethnic identities across the Great
Lakes Region, and the continent as a whole.60
The historical use of ethnic identity to rule and conquer, and the role law played
in it, represents a critical legacy of colonization that impacts on contemporary legal
approaches to ethnicity in most African states. As captured by Deng in his book on
identity and constitutionalism in Africa, such historical bias towards ethnicity is an
important factor in the “crisis of identity” in Africa:
The tendency of colonial powers to treat certain groups and regions preferentially in the development of political and economical policies led to considerable disparities amongst ethnic
groups in the shaping and sharing of power, national wealth, social services and development
opportunities and effectively sowed the seeds for future conflict amongst indigenous groups.
Instead of seeking in addressing these disparities through an equitable system of distribution
of power and representation, many post independence African governments adopted wholesale
the constitutional models and governance structures prescribed by their colonizers. In doing
so, they emphasized monolithic concepts of unity by suppressing territorially definable ethnic
minorities, who sought not only to be recognized for their distinctive identities but also to participate in the constitutional and governing frameworks of the states within which they live.61
Moreover, the “tribalization” of the continent implemented by the colonial administration has influenced a movement of “de-tribalization” in the post-independence
period. Tribal allegiances were seen as “non-modern,” something that most post-colonial countries have been fighting against.62 As an illustration, one of the justifications
against minority rights put forward by the government of the DRC is that fighting
“tribalism” was still part of its policy to ensure the unity of the country.63 Overall,
See the Creation of Tribalism in Southern Africa (Leroy Vail & Landeg White eds., 1989); Ethnicity In Africa:
Roots, Meanings and Implications (L. De La Gorgondière, K. King, & S. Vaughan eds., 1996); Gérard Prunier
& Jean-Pierre Chrétien, Les Ethnies ont une histoire [Ethnic Groups Have a History] (1989).
59
There is abundant literature on this issue, see, e.g., Jean-Pierre Chrétien, Le défi de l’éthnisme: Rwanda et
Burundi, 1990–1996 [The Challenge of Ethnicity: Rwanda and Burundi 1990–1996] (1997); Gérard
Prunier, The Rwanda Crisis: History of a Genocide, 1959–1994 (1996); Human Rights Watch & Alison Des
Forges, Leave None to tell the Story: Genocide in Rwanda (1999); Mahmood Mamdani, When Victims Become
Killers: Colonialism, Nativism, and the Genocide in Rwanda (2001).
60
For an in depth analysis on such dynamic, see Au Cœur de l’ethnie: ethnies, tribalisme et état en Afrique
[At the Heart of Ethnicity: Ethnic Groups, Tribalism and State in Africa] (Elikia M’bokolo & Jean-Loup
Amselle eds., 2005).
61
Francis Deng, Identity, Diversity, and Constitutionalism in Africa 2 (2008). See also Julia Maxted & Abebe
Zegeye, State Integration and Human Rights in Africa, 38 Int’l J. Comp. Soc. (1997).
62
See Ronald Cohen & John Midleton, From Tribe to Nation in Africa (1970); Seyoum Hameso, Ethnicity in
Africa: Towards a Positive Approach (2001); Mordechai Tamarkin, Culture and Politics in Africa: Legitimizing
Ethnicity, Rehabilitating the Post-colonial State, 2(3) Nationalism & Ethnic Pol. 360, 380 (1996).
63
See Summary Record, supra note 48, ¶ 4.
58
430
I•CON 11 (2013), 414–437
colonialism has left a definitive stain on the relationship between law and ethnicity by
generating skepticism towards “tribalism” (seen as anti-modern) but also a tradition
of mixing ethnicity and constitutionalism to ensure the dominance of some groups
over others. This shadow of colonialism is visible in the nation-building period that
took place in the first decades of post-colonial constitutionalism.
The post-colonial momentum of nation building that took place across most of
Africa has played an important role in preventing the development of a strong corpus of constitutional law protecting minority rights.64 In the years that followed independence, most sub-Saharan states actively engaged in an exercise of nation building
to ensure the unity of their emerging countries. In such nation-building exercises,
ethnic identity was viewed as treacherous. The declaration by the then president of
Malawi—“so far as I am concerned there is no Yao in this country, no Lomwe, no Sena,
no Chewa, no Ngoni, no Nyakyusa, no Tonga, there are only Malawians”—is representative of the general feeling towards ethnicity across the continent.65 Nationalism
was put ahead of ethnicity, and the general view was that putting too much emphasis
on ethnicity might trigger a false sense of identity, or even a lack of loyalty towards the
national identity. Consequently, in the post-colonial years, several constitutions have
put emphasis on being a national of the state and have rejected any reference to ethnicity. While tension between ethnicity and nationalism is not particular to Africa,66
the colonial history of the continent and the imperative to establish a strong sense of
nationalism in the immediate post-independence era gave a specific tone to the relationship. As Selassie noted:
African governments, believing that multiple cultures and languages foster divided loyalties
and a sense of separateness, have too frequently assumed that nation-building requires supplanting the individual’s ethnic and other particularist ties.67
As a result, most of the post-independence constitutions sought to achieve equilibrium in favor of citizen’s rights rather than the rights of ethnic minorities. As seen in
the case of Rwanda, Burundi, and the DRC, the suspicion towards ethnicity and the
sacrifice of anything ethnic in the name of national unity are still present in some of
the constitutions most recently adopted on the continent.
In a post-cold war world, the fear of “Balkanization” is another central argument
in favor of a strong constitutional framework guaranteeing unity and rejecting ethnicity. The label “Balkanization”—a reminder of the role that ethnicity played in the
disaggregation of the former Yugoslavia—refers to the belief that the recognition of
ethnicity might lead to the self-destruction of national unity. As a result, the rights of
minorities are seen as an ingredient towards the fragmentation of the country along
For an enlightening analysis, see Alemante G. Selassie, Ethnic Identity and Constitutional Design for Africa,
29 Stan. J. Int’l L. 1 (1992).
65
President Hastings Banda, as quoted in The Creation of Tribalism in Southern Africa 151 (Leroy Vail &
Landeg White eds., 1989).
66
See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (rev’d ed.
2006); Ernest Gellner, Nations and Nationalism (2d ed. 2006); Thomas Hylland Eriksen, Ethnicity Versus
Nationalism, 28(3) J. Peace Res. 263 (1991).
67
Selassie, supra note 64, at 18.
64
Constitutionalism, ethnicity and minority rights in Africa
431
ethnic lines.68 This fear has played an important role in the rejection of ethnicity and
minority rights in the different post-independence constitutions on the continent.69
There is a perception of a domino effect under which, if you provide some form of special legal protection based on ethnicity, then everybody will soon start to claim specific
rights.
The fear of “Balkanization” is particularly acute in the context of Africa where ethnic identity is still considered significant since most African citizens have several facets
to their personal identity including ethnic, tribal, and national. From this perspective, the equation that a state is the representation or the celebration of a “nation”
is tainted by its Western origins of imposed nation building.70 While most Western
liberal democracies are based on a strong notion of a “nation” undergirding a
single predominant identity (often to the detriment of minority groups), in Africa,
most states are composed of myriads of different ethnic, religious, and cultural identities. Usually, the tribe, the clan, or the community remains a strong marker of identity on the continent.71 In most African countries, every single individual belongs to
a tribe, a community, but then is also a citizen of a state.72 The argument is not that
there are no minorities but rather that everyone, to some extent, belongs to a minority group. Yacoub speaks of “minorities with no majorities.”73 Accordingly, the strict
majority/minority dichotomy seems to make little sense in Africa. This raises the question whether the whole concept of minority rights is Western, with little relevance to
Africa.
6. Minority rights as a Western concept?
Minority rights are often perceived as a Western concept.74 This view relies on the
fact that while the notion of a “national minority” might make sense in Europe or
in Canada, for example, in the African context, the concept has little resonance.
Several factors explain this perception of minority rights, including the use of ethnicity during the colonial era but also the perceived Western background attached to
the international framework of minority rights, which has created strong distrust.
Internationally, the origins of a special regime of protection of minorities are often
derived from the post-Westphalian era in Europe, where monarchs and religious
See Li-Ann Thio, Battling Balkanization: Regional Approaches Towards Minority Protection Beyond Europe, 43
Harv. Int’l L. J. 409 (2002).
69
See Benyamin Neuberger, The African Concept of Balkanisation, 14(3) J. Mod. Afr. Stud. 523 (1976).
70
For a discussion on this point, see Will Kymlicka, Nation-Building & Minority Rights: Comparing the West &
Africa, in Ethnicity and Democracy in Africa 54 (Bruce Berman, Dickson Eyoh & Will Kymlicka eds., 2004).
71
See William F. S. Miles & David A. Rochefort, Nationalism Versus Ethnic Identity in Sub-Saharan Africa, 85(2)
Am. Pol. Sci. Rev. 393 (1991).
72
See Ethnicity and Nationalism in Africa: Constructivist Reflections and Contemporary Politics (Paris Yeros ed.,
1999).
73
Joseph Yacoub, Les Minorités dans le monde [Minorities in the World] (1998).
74
See notably the debate in Universal Minority Rights? A Transnational Approach (Yasutomo Morigiwa,
Fumihiko Ishiyama, & Tetsu Sakurai eds., 2004)
68
432
I•CON 11 (2013), 414–437
leaders started to establish some form of protection for religious minorities in the different peace treaties that followed the numerous wars that had raged across Europe
during this period.75 The fact that the treaty system of protection of minorities born
under the auspices of the League of Nations in the early twentieth century focused
chiefly on the protection of minorities within Europe, also contributes to the charge
that it is in fact a European idea.76
Taking a broader perspective, the debate on the relevance of the concept of “minority” outside Europe is part of the larger debate on whether the whole human rights system is based on Western values. From an African perspective, by being entrenched into
an individualistic approach to rights, the international human rights system is often
perceived as being too Western; further, it is seen to neglect the predominantly communitarian approach to rights that is found in the traditional socio-legal systems across
Africa.77 This individualistic approach to human rights emerged from the nineteenthcentury liberal constitutionalism which saw the adoption of the first constitutionally
guaranteed human rights.78 The movement of liberal constitutionalism was predominately concerned with the rights of individuals, not communities.79 This gave rise to the
adoption of constitutional norms guaranteeing the rights of individuals only. Still today
most constitutions (written or not) remain under the influence of liberal constitutionalism that puts forward individual human rights.80 As highlighted by Selassie: “[L]iberal
constitutionalism has held sway in Africa and since the time of independence.”81
The contemporary international human rights system is still largely influenced by
liberal constitutionalism.82 The influence of individual constitutionalism on human
rights norms is certainly one of the central theoretical justifications for the labeling
of human rights as Western. In these debates, one of the central arguments is that
“African communitarianism” should be seen as an important ingredient which could
make the system more universal.83 Most African nations, tribes, families, and clans
See Patrick Thornberry, International Law and the Rights of Minorities (1991); Solomon A. Dersso, The
Socio-Historical and Political Processes Leading to the Emergence and Development of Norms on Minorities, in
Perspectives on the Rights of Minorities and Indigenous Peoples in Africa 43 (Solomon A. Dersso ed., 2010).
76
See Joshua Castellino, The Protection of Minorities and Indigenous Peoples in International Law: A Comparative
Temporal Analysis, 17(3) Int’l J. on Minority & Group Rts. 393 (2010).
77
See Bonnie Ibhawoh, Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights
in the African State, 22 Hum. Rts. Q. 838 (2000).
78
See Roger Smith, Liberalism and American Constitutional Law (1990). See also Michael C. Davis,
Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values, 11 Harv. Hum. Rts.
J. 109 (1998).
79
See Vernon van Dyke, Collective Entities and Moral Rights: Problems in Liberal Democratic Toughs, 44 J. Pol.
21 (1982).
80
See L. C. Keith & A. Ogundele, Legal Systems and Constitutionalism in Sub-Saharan Africa: An Empirical
Examination of Colonial Influences on Human Rights, 29(4) Hum. Rts. Q. 1065 (2007); B. Ibawoh, Between
Culture and Constitution: Evaluating the Cultural Legitimacy of human Rights in the African State, 22(4) Hum.
Rts. Q. 838 (2000).
81
Selassie, supra note 64, at 14.
82
See Makau Mutua, Human Rights: A Political and Cultural Critique (2002).
83
Josiah Cobbah, African Values and the Human Rights Debate: An African Perspective, 9 Hum. Rts. Q. 209
(1987).
75
Constitutionalism, ethnicity and minority rights in Africa
433
have by and large always put a great emphasis on the rights (and duties) of the community.84 While human rights are often perceived to be individualistic, the African
approach to human rights clearly encompasses a collective and communitarian
approach to rights.85 This is reflected both in socio-legal traditions, as well as contemporary human rights instruments. For example, the European Convention of Human
Rights provides rights to individuals only, whereas the African Charter puts a great
emphasis on peoples, communities, and collective rights.86
Going back to minority rights, which is evolving as part of the larger international
human rights system, the individualist approach to rights is also perceptible. On the
whole, minority rights are still largely individualistic.87 The UN Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
protects the rights of individuals.88 As its title clearly asserts, rights are granted to persons belonging to minorities, not to the minority groups themselves. Article 27 of the
International Covenant on Civil and Political Rights, which remains the fundamental
treaty provision for the protection of minorities, also addresses the rights of the individuals belonging to a minority group, rather than the rights of the group.89
However, recent developments regarding the rights of minorities are pushing towards the gradual affirmation of group rights. Not surprisingly, the African
Commission on Human and Peoples’ Rights is playing a leading role in the evolution
towards a more communitarian approach to rights. The Commission has often highlighted how the African Charter on Human and Peoples’ Rights “combines African
values with international norms by not only promoting internationally recognized
individual rights but also by proclaiming collective rights.”90 In its recent decision
regarding the Endorois community in Kenya, the Commission affirmed that property
rights could be exercised in a collective manner by an ethnic group.91 This evolution
towards a gradual recognition of group rights will certainly influence the general
development of international law. Overall, while the human rights system is certainly tainted by its original Western individualist approach to rights, the most recent
This point is largely developed by id.
See Rhoda Howard, Group versus Individual identity in the African Debate on Human Rights, in Human Rights
in Africa: Cross Cultural Perspectives 159 (Abd Allah Ahmad Na’im & Francis Mading Deng eds., 1990)
86
See notably arts. 19 and 20.
87
See Tom Hadden, The Pendulum Theory of Individual, Communal and Minority Rights, 3(1) Crit. Rev. Int’l
Soc. & Pol. Phil. 77 (2000).
88
Declaration on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, U.N. Doc.
A/RES/47/135 (Dec. 18, 1002).
89
See Philip Vuciri Ramaga, The Group Concept in Minority Protection, 15(3) Hum. Rts. Q. 575 (1993); Peter
Jones, Human Rights, Group Rights, and Peoples’ Rights, 21(1) Hum. Rts. Q. 80 (1999).
90
Office of the High Commissioner for Human Rights, Minority Rights under the African Charter on Human
and Peoples’ Rights, Guide to Minorities, Pamphlet No. 6, available at http://www.ohchr.org/Documents/
Publications/GuideMinorities6en.pdf. See also Rachel Murray, African Commission on Human and Peoples’
Rights and International Law (2000).
91
African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and
Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication
276/2003. The decision was adopted by the African Commission in May 2009 and approved by the
African Union at its January 2010 meeting.
84
85
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developments are challenging this approach and providing greater scope for collective
rights. An evolution towards group rights will hopefully have some impact on the perception that human rights and minority rights are open to a more African communitarian approach to rights. This evolution at the international and regional level might
be significant at the national level since several constitutions in Africa provide that
ratified international treaties have a legal value superior to national law.92 Likewise,
several constitutions make direct references to international human rights treaties as
well as to the African Charter as sources of legal interpretation.93 More importantly,
the evolution towards the recognition of a collective form of rights for ethnic communities might pave the way to a new understanding of minority rights at both international and national levels, showing that collective rights are not antithetical to states’
territorial integrity and unity.
7. Conclusion: Towards the Africanization of minority
rights?
The review of constitutional arrangements regarding minority rights shows that the
concept of minority rights remains contentious in the design of most African constitutions. The analyses of the constitutions of Rwanda, Burundi, and the DRC as well as
the more theoretical analysis on the concept of minority rights have put in perspective
three main types of arguments against minority rights:
(1) The “Balkanization” argument, which asserts that the recognition of minority
rights might go against the aim of national unity;
(2) The “ethnical jigsaw puzzle” argument, which proposes that, since everyone in
Africa belongs to a specific tribe or clan and since every country is composed of a
myriad of different ethnic groups, to some extent, “everybody is a minority”;
(3) The “privileged” argument, which contends that the recognition of specific rights
for minorities would create a “privileged” category of rights holders.
Put together these three arguments, and a profound lack of understanding of the
content of minority rights emerges.
The “Balkanization” argument fails to understand the essence of minority rights.
The aim is not to provide legal grounds for minorities to break away from the state,
but rather to ensure that minorities, by getting protection and recognition, join a concerted movement toward national unity. As Thio highlights:
This includes Benin (art. 147), Burkina Faso (art. 151), Burundi (art. 292), Cameroon (art. 45), Central
African Republic (art. 69), Chad (art. 222), Comoros (art. 10), Congo (art. 185), Democratic Republic
of Congo (art. 215), Djibouti (art. 37), Guinea (art. 79), Madagascar (art. 82(3)), Mali (art. 116),
Mauritania (art. 80), Niger (art. 132), Rwanda (art. 190), Senegal (art. 98), Togo (art. 140), and Tunisia
(art 32).
93
Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d’Ivoire,
Equatorial Guinea, Gabon, Guinea, Madagascar, Mali, Mauritania, Niger, Rwanda, Senegal, and Togo.
See C. Heyns, Constitutional Human Rights Law in Africa, 22 S. Afr. J. Hum. Rts. 674 (2006)
92
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435
A constitution may contribute to the pacification of minorities, mute ethnic tensions, and promote the peaceful co-existence of disparate groups within the state framework by promoting
their effective protection, recognition, and participation in all aspects of public life.94 It is usually when minorities are not protected, and are facing entrenched discrimination that they want to break away, and the threat of “Balkanization” becomes real.
In fact, if anything, the situation in the Balkans is a good illustration of how the repression of a minority community could lead to claims for secession. Generally, most of the
recent ethnic conflicts involving a minority community fighting for secession have
been rooted in the repression of the rights of that community. By ensuring a strong
legal protection of minorities, states are actually providing more scope to their overall
goal of national unity. The international guidelines on minority rights are inviting
states to “promote” the rights of minorities with the overall aim of maintaining order
and protecting the national unity of the states. In a world where there are more than
8,000 ethnic groups and only 193 states, minority rights are not part of a “suicide
club” whereby each ethnic group should get its own country; rather, the argument is
that by ensuring minorities’ protection states will protect their unity.95 Minority rights
should be seen as a protection against the fear of “Balkanization” rather than a process that seeks to oversee the ethnic disintegration of states.
The “ethnic jigsaw puzzle” argument fails to understand the scope of minority
rights. The minority rights framework does not concern all ethnic, religious, or linguistic groups. Not every ethnic community can or ought to be able to claim minority status. The essence of the emerging regime of minority rights is to protect the
“non-dominant” and the vulnerable. Statistical minorities often hold power, and
historically several constitutions have supported the political domination of minorities.96 Under international law, the question of who is a statistical minority or majority is not central to the definition. While there is no universally accepted definition,
all the formulations regarding minorities have clearly placed emphasis on the fact
that minorities are groups in a situation of non-dominance.97 This focus on nondominance rather than on the strength of numbers is crucial to understanding the
scope of minority rights: the concerned communities are those living in a “marginalized” situation. Applied to the three countries analyzed here, the Batwa fall under this
notion of non-dominance since they are facing discrimination and subjugation in all
spheres of economy, politics, and education. Minority rights concern communities
which are clearly “marginalized” within the dominant society, and not necessarily
all “ethnic” communities.
States seem to be more inclined to refer to “marginalized” communities rather
than minorities. In many situations, the term “minority” itself is contentious. Several
national legislations are putting in place special measures of protection for specific
Li-ann Thio, Constitutional Accommodation of the Rights of Ethnic and Religious Minorities in Plural
Democracies: Lessons and Cautionary Tales from South-East Asia, 22(1) Pace Int’l L. Rev. 43, 47 (2010).
95
See Lea Brilmeyer, Territorial Integrity versus Self-determination, 16 Yale J. Int’l L. 177 (1991).
96
The most illustrative situation was probably the control of power by the white majority during the apartheid in South Africa.
97
For an overview and analysis of these definitions, see Makkonen, supra note 11.
94
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I•CON 11 (2013), 414–437
communities but are referring to “communities,” “local communities,”98 “forest communities,” or “marginalized communities”—terms which are often preferred to the
term “minority.” Ultimately, this is more an issue of terminology since the “marginalized” or “forest communities” are the minorities in need of special measures of protection. This issue of terminology goes to the heart of the debate as to whether the
concept of minorities is a “Western” formulation that reflects the origins of the discourse and fails to conceptualize modern realities in post-colonial states. In the end,
this is an issue of terminology since the essence of minority rights is to protect the
most “marginalized.” Perhaps the future of minority rights in Africa resides in such
small linguistic transfers into legal discourse on the rights of the most “marginalized”
communities rather than “ethnic” minorities. While everybody belongs to an ethnicity (the “ethnic jigsaw puzzle argument”), not everybody is in a marginalized situation
because of his/her ethnic affiliation. Keeping that in mind, until recently, the minority rights framework was tainted by the Western approach to “national minorities,”
adopting the terminology of “marginalized minorities” might well be a way to make
the human rights discourse on minority rights much more universal. Marginalized
communities are groups that are facing hardship and discrimination because of historical stigmatization based on ethnicity, language, or religion. This is not very far
from the notion of minority groups who are facing discrimination because of their
ethnic, linguistic, or religious belonging.
In the context of Africa, the concept of “marginalized” communities seems to
be emerging. The term “marginalized communities” is now used by the African
Commission, but it has also been used in the most recent constitution adopted on the
continent; the new Constitution of Kenya adopted in 2010 qualifies “marginalized
community” as one that
out of need or desire to preserve its unique culture and identity from assimilation, has remained
outside the integrated social and economic life of Kenya as a whole, or an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on hunter or
gatherer economy; or pastoral persons and communities whether they are nomadic or a settled
community that because of its relative geographic isolation has experienced only marginal
participation in the integrated social and economic life of Kenya as a whole.99
The focus on “marginalization” might also provide an answer to the “privileged”
argument. The “privileged” argument puts forward the idea that by creating special
minority rights, governments are according “privileges” to specific ethnic groups. The
focus on marginalization highlights how such arguments misinterpret the content of
minority rights. Minority rights are concerned with the rights of the most marginalized communities, and the aim is to provide special rights to allow such communities
to attain equality with the rest of the society. The aim is not to provide such communities with “more” rights, but with enough protection to allow them to enjoy a similar
level of protection to that of the dominant communities. The rights are not “privileges” but rights to enjoy their culture, language, and religion in a way that any other
Or “communautés riveraines” in Francophone Africa.
Constitution of Kenya, the new constitution was promulgated on Aug. 27, 2010.
98
99
Constitutionalism, ethnicity and minority rights in Africa
437
non-marginalized community does. The aim is equality, not creating new privileges.
The focus on “marginalized” communities might help erase misconceptions regarding
the content of minority rights.
The emphasis on the need to put in place a special legal framework of protection
of the most marginalized communities rather than ethnic minorities might well be
a way of making the minority rights framework better adjusted to Africa. This focus
addresses most of the issues regarding the “ethnic jigsaw puzzle,” the privileged argument, and the fear of Balkanization. The focus on marginalized communities might
shift the emphasis to the fact that the rights of minorities are not about breaking away
from states but rather ensuring that the most marginalized remain within the state.
While legal protection of minorities developed in Europe, based on the very European
concept of “national” minorities, African states could develop their own approach to
minority rights by focusing on ‘marginalized’ minorities—an approach better suited
to Africa. The focus on marginalization could bolster the “Africanization” of minority rights in the constitutional design of states, and support a much more universal approach to human rights law. The current wave of constitutional development
marks an important step towards the “Africanization” of post-colonial constitutions
which were often perceived as illegitimate and largely influenced by the ex-colonial
powers.100 Within this momentum, the inclusion of a specific African approach to
minority rights which focuses more on marginalization than on ethnicity could mark
an important step in the development of a specific legal corpus to protect minorities.
See H.W.O. Okoth-Ogendo, Constitutions without Constitutionalism: Reflections on an African Paradox, in
Constitutionalism and Democracy: Transitions in the Contemporary World 69 (Douglas Greenberg et al. eds.,
1993).
100