The UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly on 13th September 2007 following two decades of negotiations between governments and representatives of indigenous people.
The Declaration is the most comprehensive instrument detailing the rights of indigenous peoples in international law and policy, containing minimum standards for the recognition, protection and promotion of these rights. It establishes a universal framework of minimum standards for the survival, dignity, wellbeing and rights of the world’s indigenous peoples.
The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against indigenous people and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between states and indigenous peoples.
It is important to state here that 144 States voted in favour of the Declaration, 4 states (Australia, Canada, New Zealand and the US) voted against while 11 states including Nigeria abstained from the votes.
Therefore Nigeria today has not formally and explicitly indicated its readiness to implement the letter and spirit of the Declaration. It is also interesting to note that the four western countries that voted against it have since reversed their position and are now fully in support of it.
Now talking about the Nigerian context, it is believed by scholars that Nigeria abstained from supporting the Declaration because of the complex nature of Nigeria as a nation with many ethnic nationalities. Therefore, the definition of who are indigenous people in Nigeria will be met with many challenges. The 1999 Constitution of the Federal Republic of Nigeria which came into existence about eight years before the Declaration did not help matters in its definition of indigenous people. The Constitution in section 25 states, ‘a person is indigenous to Nigeria if either of their parents or any of their grandparents belongs or belonged to a community indigenous to Nigeria, and if either of their parents or any of their grandparents was born in Nigeria.’ The Constitution guarantees the fundamental rights of all citizens without specifically and explicitly protecting the rights of indigenous people.
In the context of the Federal Capital Territory, the original inhabitants of the FCT are the only persons that should be regarded as the indigenous people of the FCT, strictly speaking. They are the first people to settle in the FCT before the influence of state formation, state institutions and subsequent changing of the capital of Nigeria from Lagos to Abuja. They include the Gbagyi, Gwari, Ebira, Koro, Nupe, Bassa, Gwandara, Gade and Dibo. It is pertinent to state that Abuja was carved from Kaduna, Niger, Kogi, Nasarawa and Kwara states.
In view of the fact that the previous Nigerian Constitutions and the current 1999 Constitution of Nigeria have never in any line specifically endorsed or protected the rights of indigenous persons of the FCT, the adoption of the UN Declaration on the Rights of Indigenous Peoples would have been a golden opportunity for Nigeria to correct this anomaly. Incidentally, the Federal government of Nigeria shied away from that.
First, we cannot deny the special status of the original inhabitants of the FCT in comparison to other citizens of Nigeria who have their various states of origin and who therefore enjoy all the rights and privileges accruing to states of the federation and indigenes of the states of the federation. Unfortunately for the original inhabitants of the FCT, the same Constitution which guarantees fundamental rights for all citizens failed to protect their political and cultural rights, their rights to equal representation and equal development. Obviously, Chapter IV of the Constitution of the Federal Republic of Nigeria which addresses fundamental human rights is not enough to guarantee the equality of the original inhabitants of the FCT with other citizens of Nigeria. That is a blatant injustice which Nigeria missed the opportunity to address when it failed to adopt the UN Declaration on the Rights of Indigenous People.
Let us go down to identify some of these injustices of the Nigerian Constitution on the original inhabitants of the FCT for indeed the injustices are legion. First, let us look at political rights. The Constitution fails to recognize the original inhabitants of the FCT under the Federal Character Act which requires each state of the Federation to produce a Minister. The Federal Character Commission, among other federal executive bodies, was set up by section 153 of the 1999 Constitution to consolidate the Federal Character Act which has been in existence since 1995. Both the Constitution and the Act have failed to expressly mention the FCT while mentioning all the states of the federation as the sources from which the President shall appoint a minister in the interest of Federal Character. It is therefore absurd that a conscious effort to ensure Federal Character advertently or inadvertently omitted the FCT which happens to be the seat of the Federal Government.
The effect of this neglect is that since the creation of the FCT in 1976, not many ministers of the Federal Republic of Nigeria have been of FCT origin and, in fact, no indigene of the FCT has even been the Minister of the Federal Capital Territory. Unfortunately, there is nothing like Governor or Mayor of the FCT under the Nigerian Constitution. It might interest you to note that more often than not, the seats of the area council chairmen are won by non-indigenes because they use their numerical strength to vote in members of their own states and ethnicity. Where are the original inhabitants of the FCT in the entire picture? It is obvious that they need special legal protection if they are not to remain bystanders.
Talking about legislative representation, by virtue of the Constitution, whereas other states have Houses of Assembly, the FCT has no House of Assembly of its own. The Senate of the Federal Republic of Nigeria makes laws for the entire FCT and only has Senate Committee of the FCT which is not compulsorily made up of FCT indigenes. In fact, how can it be made up of FCT indigenes when the Constitution only allows the FCT one member of the Senate while States are allowed to have three senators each? Talking about the House of Representative which also partakes in law making for the FCT, the Constitution only allows the FCT to send two members of the House of Representatives while states are allowed to send between five to twenty four representatives each. The House of Representatives also has a Committee on the FCT.
Talking about economic rights, whereas states of the Federation have budgets and receive monthly allocations from the federal purse, the FCT’s budget is based on one percent of the consolidated revenue of the Federation and any other revenue that it may generate. Little wonder why the indigenous people of the FCT who have been pushed to the suburb and outskirts of the FCT still suffer poor medical and educational facilities, poor sanitation and drinking water, uncontrolled grazing on their crops, and high infant and maternal mortality rate. I wish to state that even where these indigenous people of the FCT are seen in the City Centre (though it’s rarely the case), they still lack these social amenities and infrastructures. There is no conscious effort to set apart a bulk of this FCT budget for the development and welfare of the indigenous people of the FCT. Alas! There is no constitutional requirement for that in the first place.
Articles 4 and 5 of the UN Declaration on Indigenous Peoples’ Rights would have been instructive in protecting the political and economic rights of the original inhabitants of the FCT had it been that Nigeria adopted and ratified the Declaration Article 4 states:
‘Indigenous people in exercising their right to self-determination have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.’
Article 5 states:
‘Indigenous people have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social, and cultural life of the State’
Article 5 therefore extends this protection to the cultural and social institutions and way of life of the indigenous people without depriving them of the right to also participate in the general political, economic, legal, social, and cultural life of the State. In Abuja, the original inhabitants have lamented gross neglect of their social and cultural institutions, for instance the erection of structures on their holy sites, their burial grounds, their evil forests and places that evoke certain cultural or spiritual interpretations. These provocative acts of successive governments in Nigeria have more often than not been done without compensation or adequate compensation even when such places could ordinarily have been avoided by the government out of respect for the rights of the indigenous people.
Talking about the very annoying case of multiple acquisitions by the Federal Government of the lands of the indigenous people of the FCT without adequate compensation, that also reminds us of the lacuna in the Nigerian Constitution which would have been taken care of by the UN Declaration in view. First, the Land Use Act which is recognized by the Nigerian Constitution is only applicable to the states of the Federation and inapplicable to the FCT. This Act was adopted by the Nigerian constitution without it being amended. The implication of that is that whereas all lands in the state are held in trust by the State Governor for the people of that state, lands in the FCT can only be allocated by the FCT Minister who is an agent of the Federal Government. In fact, Area Councils in the FCT by virtue of previous judicial decisions have no power to allocate land in the FCT.
Flowing therefrom, the question is: Which lands is the FCT Minister empowered in law to allocate to the entire Nigerians? He is empowered to allocate the lands which belonged to the original people of the FCT before the FCT Act of 1976 which was initially Decree No.6. The FCT Act of 1976 created the Federal Capital Development Authority and vested it with the power to among other things, move the Seat of the Federal Government to the FCT, manage land within the FCT and in fact take over any property within the FCT for the purposes of its functions. Section 6 of the Act states a very rigorous and I must state unfriendly mode and procedure of compensation which has today resulted in either the non-compensation or inadequate compensation of the indigenous people of the FCT for their lands.
At a time, the inadequacy of the extant laws in doing justice to the indigenous people of the FCT whose lands have been seized by the FCDA via its policies led to mass public outcry thereby prompting the FCDA to consider ‘reintegration policy’ instead of its previous ‘resettlement policy’. As beautiful as the reintegration policy would have been provided it maintained the distinct identity of the indigenous peoples of the FCT, it also failed due to bad faith and haphazard implementation. Unfortunately section 44 of the Nigerian Constitution only requires the payment of compensation for such immovable property without stating how the compensation shall be computed even as it gives the owner of the property the power to apply to the courts for the determination of the amount of compensation. It avoids qualifying the compensation with ‘adequate’.
On the other hand, the UN Declaration on the Rights of Indigenous People states in Article 26 (1) and (2):
‘Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.’
‘Indigenous peoples have the right to redress, by means that can include restitution or when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.’
These are but a fraction of the numerous clauses in the said UN Declaration which seek to protect the rights of the indigenous people to their lands, territories and resources. Special notice should be taken of the qualification of ‘compensation’ with ‘fair and equitable’, a term which the Nigerian Constitution and the FCT Act of 1976 shied away from.
The Nigerian Constitution forbids any form of discrimination and guarantees the equality of all citizens in section 42. This section is in tandem with the provisions of the UN Declaration on the Rights of Indigenous People regarding the non-discrimination and equal treatment of indigenous people. However, the problem here lies in the unfair interpretation and political implementation given to this section by the Federal Republic of Nigeria as regards the rights of the indigenous people of the FCT. The Nigerian Government usually pretends as if giving a special status to the original inhabitants of the FCT will amount to discrimination against the other Nigerians whereas that will rather shore up the rights of the original people of the FCT to the same levels of the other Nigerians, thereby ensuring equity and justice.
Talking about employment rights for instance, we should have in mind that every Nigerian that works with a federal ministry or agency has the alternative of working in his state where such job opportunities exists in his state. Unfortunately, the indigenes of the FCT have no state to fall back on. Therefore it is unfair to allow them to compete equally with those other Nigerians who have other opportunities in their states. This naturally means that the rate of unemployment among the indigenes of the FCT will be higher than that among the indigenes of any state of the federation.
As at the time a population census was conducted on the FCT indigenes in 1978 by the Geography Department of the University of Ibadan, the population was about 450,000. It is estimated that the population today will be about 6,000,000 indigenes in Nigeria and in diaspora. How much job opportunity exists for them? Unfortunately we see them doing menial works where they are usually being underpaid or exploited. Sadder is the fact that those of them that have taken to street hawking to survive have been outlawed and are being harassed daily in execution of the FCT anti-street trading laws.
Finally, Article 22 of the UN Declaration on the Rights of Indigenous People states that particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of the Declaration. There is no equivalent provision in the Nigerian Constitution. Unfortunately that consideration will never be given to the original inhabitants of the FCT because Nigeria has not adopted or ratified the Declaration.
In summary, it may be difficult to understand the complex and difficult situation which the Nigerian Constitution as it is presently places the indigenous people of the FCT but which would have been fairly addressed and resolved by virtue of Nigeria adopting and ratifying the UN Declaration on the Rights of Indigenous People. You can only understand it better if you are an indigenous person of the FCT.
—–Ndukwe Charles Ndukwe, Esq is a legal practitioner, one of the two founders of Lloyds & Smith Attorneys Abuja, and an author. He has a special flair for public interest litigation and litigation in human rights and environmental rights.