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Final Master Thesis

Nigeria’s Spiralling Herder-Farmer Conflict as an African Human Rights Issue

A study of the role of African human rights law in the violent intercommunal clashes between herders and

farmers in Nigeria

Name: Berty Bannor

E-mail: bertybannor14@gmail.com Student number: 12906867

Master track: Public International Law (International and European Law) Supervisor: M. Plagis

Academic year: 2020 – 2021 Date of submission: 1 July 2021

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Abstract

This thesis studies how the African Charter can be a tool in solving natural resource conflict in Nigeria. Confrontations over natural resources between farmers and herders have increased considerably in recent years in Nigeria. The conflict between farmers and herders has reached levels of violence that are not seen elsewhere, particularly in the country’s Middle Belt. This escalation of the conflict results from multiple factors; however, the root cause is the lack of natural resources due to environmental changes. The Nigerian government has taken welcome but insufficient steps to resolve the conflict and restore peace between the two groups. It is crucial to stop the killings and make natural resources accessible for farmers and herders.

Therefore, this thesis engages in another approach to resolving the conflict. Nigeria is a party to the African Charter on Human and Peoples’ Rights, the most influential human rights document due to its wide ratification. Besides the general obligation for Nigeria to respect, protect, promote and fulfil human rights under the African Charter, Nigeria is also under the obligation to protect several natural resources and environmental rights for both individuals and communities in Nigeria. This thesis sought to answer the question of how exactly this protection is framed. Moreover, this thesis answers how this protection can be used as a tool in conflict resolution. In general, the fields of human rights and conflict resolution engage in different methods in reaching peace. However, this thesis argues that the two fields should integrate for purposes of reaching the same goal. After all, if human rights are part of the problem, they should be part of the solution.

Keywords: resource scarcity, communal conflict, climate change, African human rights

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Table of contents

Abstract ... 2

Table of contents ... 3

1. Introduction ... 5

1.1 Which natural resources? Terminology and definitions ... 6

1.2 Research questions ... 6

1.3 Research methodology ... 7

1.4 Structure of this thesis ... 10

2. The Context of the Herder-Farmer Conflict in Nigeria ... 11

2.1 The Federal Republic of Nigeria ... 12

2.2 Fulani’s as herdsmen ... 13

2.3 Causes of the conflict ... 15

2.3.1 Climate change ... 15

2.3.2 Population growth ... 15

2.3.3 Growing insurgent groups ... 16

2.3.4 Lack of political will ... 17

2.4 Government’s responses to the herder-farmer conflict ... 17

2.5 Conclusion ... 19

3. The African Charter and Access to Natural Resources ... 20

3.1 Obligations of Member States under the African Charter ... 21

3.1.1 To Respect ... 21

3.1.2 To Protect ... 22

3.1.3 To Promote ... 23

3.1.4 To Fulfil ... 23

3.2 Protection of African human rights relevant to access to natural resources ... 24

3.3 Protection of Minorities... 27

3.4 Conclusion ... 29

4. The African Charter as a Tool in Conflict Resolution ... 31

4.1 The human rights and conflict resolution fields ... 31

4.2 A human rights approach to conflict resolution ... 32

4.3 The African Conception of Human Rights in the African Charter ... 34

4.4 Conclusion ... 35

5. Conclusion ... 36

Bibliography... 38

1. Primary Sources ... 38

1.1 National Legislation... 38

1.2 Treaties ... 38

1.3 Cases ... 38

1.4 Documents of the African Commission ... 39

1.5 Documents of the Committee on Economic Social and Cultural Rights ... 40

1.6 Documents of the United Nations ... 40

1.7 Others ... 40

2. Secondary Sources ... 40

2.1 Books ... 40

2.2 Book Chapters ... 41

2.3 Journal Articles ... 41

2.4 Websites and blogs ... 45

2.5 Newspaper Articles ... 46

2.6 Reports... 48

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2.7 Others ... 49 APPENDICES ... 50

Map of Nigerian States with High Incidence of Herder-Farmer Causalties ... 50

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1. Introduction

In West Africa, pastoral-sedentary dynamics have existed for centuries. Mostly, herders and farmers lived in a relatively peaceful symbiotic relationship: herders’ cattle would graze on the farmer’s land, and in exchange, the cattle would fertilise the fields. Even though strife between herders and farmers was not uncommon, reports of violent clashes between these two groups have increased significantly in the last decade.1 In Nigeria, the conflict between farmers and herders has reached levels of violence that are not seen elsewhere, resulting in many casualties and the loss of many lives.2

One key issue is the (lack of) access and management of essential natural resources like land and water. Another relevant issue is that the herders moving in northern Nigeria and large parts of West Africa are part of the minority group of Fulani's. The Fulani’s are an ethnic group of people who are known for traditionally pastoral nomadic practices herding cattle, goats and sheep across West Africa.3 Fulani’s in Nigeria are known to live a marginalised life.4 This adds to the complexity and the exacerbation of the conflict.

While both farmers and herders suffer an acute need for adequate access to natural resources, the Nigerian government has not had many successes addressing these needs.5 Nigeria's regulations regarding pastoralism, anti-grazing, and land management have intensified the conflict between farmers and herders in central Nigeria.6 Many human rights organisations have condemned the Nigerian government for not taking appropriate action.7

1 Surulola Eke, ‘‘Nomad Savage’ and herder-farmer conflicts in Nigeria: the (un)making of an ancient myth’ (2020) 41(5) Third World Quarterly 745, 745

<https://www.tandfonline.com/doi/abs/10.1080/01436597.2019.1702459> accessed 20 June 2021.

2 International Crisis Group, ‘Herders against Farmers: Nigeria’s Expanding Deadly Conflict’ (Report 252, 19 September 2017) 7 – 9 <https://www.crisisgroup.org/africa/west-africa/nigeria/252-herders- against-farmers-nigerias-expanding-deadly-conflict> accessed 20 June 2021.

3 Roosevelt Osazenaye Idehem & Ubelejit Renner Ikuru ‘Migration and the Emerging Security Challenges in West Africa: Case of Fulani Herders/Sedentary Farmers Conflicts in Nigeria’ (2019) 8(4) International Journal of Arts and Humanities 128, 129.

4 Ibid.

5 Ugwumba Egbuta, ‘Understanding the Herder-Farmer Conflict in Nigeria’ (Accord.org, 14 March 2018) <https://www.accord.org.za/conflict-trends/understanding-the-herder-farmer-conflict-in- nigeria/> accessed 20 June 2021.

6 Juliana Nnoko-Mewanu, ‘Farmer-Herder Conflicts on the Rise in Africa’ (Human Rights Watch, 6 August 2018) <https://www.hrw.org/news/2018/08/06/farmer-herder-conflicts-rise-africa> accessed 20 June 2021; International Crisis Group, ‘Stopping Nigeria’s Spiralling Farmer-Herder Violence’

(Report No. 262, 26 July 2018) <https://www.crisisgroup.org/africa/west-africa/nigeria/262-stopping- nigerias-spiralling-farmer-herder-violence> accessed 20 June 2021.

7 ‘Nigeria: Rising Toll of Middle-Belt Violence’ Human Rights Watch (28 June 2018) <

https://www.hrw.org/news/2018/06/28/nigeria-rising-toll-middle-belt-violence> accessed 20 June 2021; Amnesty International, ‘Nigeria: The Harvest of Death – Three Years of Bloody Clashes

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Currently, the country has ratified international human rights instruments that recognise rights relevant to the farmers and herders. For example, the International Covenant on Economic, Social and Cultural Rights specifies in Article 11 the right to an adequate standard of living, which includes the right to water.8 Relating more specifically to access to natural resources in Nigeria is the African Charter on Human and Peoples' Rights9 (hereafter African Charter or Charter), which sets several standards underlying the protection of access to natural resources.

Even though there has been criticism by the international human rights community on Nigeria’s approach and there has been quite some elaboration on the role of the State in protecting natural resources rights under the African Charter, it seems to be unclear how the protection of these rights can play a role in solving this deadly inter-communal conflict.

Therefore, this thesis aims to employ the protection of access to natural resources of herders and farmers under the African Charter on Human and Peoples’ Rights could be used by Nigeria in resolving this natural resource conflict.

1.1 Which natural resources? Terminology and definitions

The term ‘natural resources’ refers to ‘those materials or substances of a place that can be used to sustain life or economic exploitation’.10 The definition adopted in this thesis aims to examine all natural resources that are exploited and used by the farmers and herders. Primarily, this thesis will refer to essential resources, such as water and land, rather than extractive resources such as gas, oil and other minerals that people can use. Nuances are adopted when the nature of the resources influences the legal framework. However, in general, this thesis aims to include all substances that exist naturally on the earth and are used by farmers and herders.

1.2 Research questions

The main research question of this thesis is:

Between Farmers and Herders in Nigeria (17 December 2018)

<https://www.amnesty.org/en/documents/afr44/9503/2018/en/> accessed 20 June 2021.

8 CESCR, ‘General Comment No. 15: The Right to Water’, UN Doc E/C.12/2002/11 (20 January 2003), paras 2 – 6.

9 Organization of African Unity, African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 rev. 5 (1982) 21 ILM 58 (hereafter African Charter).

10 Oxford English Dictionary Online, ‘Definition of natural resources’ <https://www-oed-

com.proxy.uba.uva.nl/view/Entry/125333?redirectedFrom=natural+resources#eid35412885> accessed 20 June 2021.

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To what extent can the protection of access to natural resources under the African Charter on Human and Peoples’ Rights be used as a tool by Nigeria to solve and de-escalate the violent herder-farmer conflict in Nigeria?

To go into more detail, the following sub-questions guided the research:

1. This thesis examines the exact context of the conflict. What are the issues and causes, who are the main stakeholders and what has been done to solve the conflict?

2. This thesis looks into the protection of access to natural resources. How is the protection of access to natural resources is framed by the African Charter on Human and Peoples’

Rights, and how are the horizontal and vertical obligations conceptualised?

3. This thesis examines how the protection of access to natural resources in the African Charter relates to the conflict. What are the implications of the protection under the African Charter, what role does the status of the Fulani herders in Nigeria play in the protection?

4. This thesis examines the implications of human rights law in conflict resolution. What is the relationship between human rights law in conflict situations, how can a State use human rights law as a tool in conflict resolution, and more specifically, how can the protection of access to natural resources under the African Charter be used in resolving the herder-farmer conflict?

1.3 Research methodology

This research investigates the adequacy of the African Charter on Human and Peoples’ Rights as a tool of conflict resolution in the intercommunal herder-farmer conflict. To answer the research questions described above, this thesis engages in a descriptive study of the herder- farmer conflict to describe the context. It is important to know what the conflict is and why it has escalated to identify the main issues relevant to the protection of access to natural resources.

This study is of the herder-farmer conflict based on texts, articles and (news) reports.

This thesis also engages in doctrinal research, making a descriptive and detailed analysis of the law on protecting natural resource rights in texts consisting of primary and secondary sources.11 Doctrinal research aims to systematise, rectify and clarify the law on any particular

11 P. Ishwara Bhat, Idea and Methods of Legal Research (Oxford University Press 2020) 163 – 164; S.

N. Jain, ‘Legal Research and Methodology’ (1972) 14(4) Journal of the Indian Law Institute 487, 491 – 492 <https://www.jstor.org/stable/43950155> accessed 20 June 2021.

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topic by analysing authoritative texts that consist of primary and secondary sources.12 In doctrinal research, interpretative tools or legal reasoning are used to evaluate legal rules and suggest recommendations for further development of the law.13 Doctrinal research is also referred to as ‘black-letter’ research as it extensively relies on using court judgements and statutes to explain the law.14 This thesis analyses the text of the African Charter on natural resource rights by looking into the legal rules, legal meaning of the rules, scope, its underlying principles, and decision-making under the rules. It also looks through secondary materials such as journal articles, textbooks or reports for additional clarification relating to a particular law.

The reason for engaging the African Charter in this thesis is, first, because of the location of the conflict. Nigeria is a country in Africa that is a party to the African Charter. Moreover, the herder-farmer conflict is not a problem in Nigeria but in West Africa in general.15 Engaging with a regional instrument shows its applicability not just in one country. Second, its wide ratification makes it the most influential human rights instrument at the regional level.16 Third, within the international human rights system, the Charter is very particular. The importance of African ownership and African identity is often equated with the African Charter.17 These themes show the great sense of pride the continent has in developing its institutions, standards and mechanisms.18 The African Charter is the result of a desire to adopt an instrument written by Africans for Africans.19 Even though the content and the interpretations of the provisions reflect norms from more universal documents and instruments (to which many African States are also a party), the African Charter also shows particular characteristics and features that might not resonate on the same wavelength of other international human rights standards.20 Moreover, the Charter drafters aimed to create an instrument that embodied human rights norms and principles founded on the historical traditions, values of African civilisations, and

12 Mike McConville & Wing Hong Chui, Research Methods for Law (Edingburgh University Press 2017) 3.

13 Ibid 3 – 7.

14 Ibid 3.

15 Nnoko-Mewanu (n 6).

16 African Commission on Human and Peoples’ Rights, ‘Ratification Table:- African Charter on Human and Peoples’ Rights’ (achpr.org) < https://www.achpr.org/ratificationtable?id=49> accessed 21 June 2021.

17 Rachel Murray, The African Charter on Human and Peoples’ Rights: a commentary (First edition, Oxford University Press, 2020) 8.

18 Ibid.

19 Ibid.

20 Ibid 9.

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responsiveness to the real needs of Africa.21 This offers an interesting basis for a human-rights approach to conflict resolution.

Whilst relying on these legal rules and interpretations of the relevant rights under the African Charter, this thesis distinguishes minorities and indigenous peoples. Under international law, in general, these two concepts have different legal consequences.22 When looking at indigenous peoples under international law, this category enjoys internal self- determination.23 Indigenous peoples claim territorial self-government, which protects the group from unwelcome regulations for the governments.24 This creates a space within which the group enjoys a greater degree of cultural security.25 The Fulani’s share many common characteristics with indigenous groups within other (African) countries. However, this thesis refers to Fulani’s as a minority group. Minorities, on the other hand, do not enjoy the right to self-determination but enjoy rights in the areas of language, culture and politics.26 Minorities make claims for cultural security.27 A difference between these two categories is that the purpose of minority rights is to include minorities in the majority population while maintaining their distinctiveness.

In contrast, indigenous rights aim at autonomous development.28 For this research, the autonomous development of Fulani’s is not an issue; therefore, they are referred to as a minority group.

In terms of theories on conflict resolution, this thesis will mainly explore the relationship between international human rights law and conflict resolution. Thus far, it seems to be that the national responses to the herder-farmer conflict are mainly focused on restoring the peace and stopping the violence between the farmers and herders, which aligns with methods of conflict resolution. Therefore, combining conflict resolution with human rights law will explain how

21 African Charter, Preamble para 4 – 5.

22 Ulrike Barten, ‘What’s In a Name? Peoples, Minorities, Indigenous Peoples, Tribal Groups and Nations’ (2015) 14(1) Journal on Ethnopolitics and Minority Issues in Europe 1, 2

<https://heinonline-

org.proxy.uba.uva.nl/HOL/Page?handle=hein.journals/jemie2015&id=1&collection=journals>

accessed 21 June 2021.

23 Ibid, 8 – 11.

24 Rachel Murray & Steven Wheatley, ‘Groups and the African Charter on Human and Peoples’

Rights’ (2003) 25(1) Human Rights Quarterly 213, 219 <https://heinonline-

org.proxy.uba.uva.nl/HOL/Page?lname=&public=false&collection=journals&handle=hein.journals/hu rq25&men_hide=false&men_tab=toc&kind=&page=213> accessed 21 June 2021.

25 Ibid.

26 Barten (n 22) 6 – 8.

27 Murray & Wheatley (n 24).

28 Asbjorn Eide & Erica-Irene Daes, ‘Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples’ (2000) UN Doc.

E/CN.4/Sub.2/2000/10, para 8 <https://digitallibrary.un.org/record/419546> accessed 21 June 2021.

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human rights law can play a role as a tool of conflict resolution within a particular conflict study.

After studying the conflict, legal research of the human rights law, and exploring the relationship between law and conflict resolution, this thesis will apply the research to the problem. This will form an answer to the research question.

1.4 Structure of this thesis

Part two of this thesis sets out an overview of the herder-farmer conflict in Nigeria’s Middle Belt, highlighting the (historical) context, current issues, and Nigeria’s response to the conflict.

Part three unpacks the African Charter for Human and Peoples’ Rights. It focuses on access to natural resources as part of human rights for farmers and herders and lays the foundation for its protection under the African Charter. It will also consider the state obligations under the African Charter. Doing so answers mainly how the protection of natural resources is framed under the African Charter. Part four links human rights to conflict resolution and answers mainly if and how the African Charter can be used as a tool in resolving the herder-farmer conflict. It will also focus on the appropriateness of the African Charter concerning conflict resolution. To sum up everything that has been stated so far, the final part five deals with concluding remarks.

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2. The Context of the Herder-Farmer Conflict in Nigeria

The herder-farmer conflict is best described as a competition for the use of limited available natural and essential resources.29 Increasing desertification, which leads to a scarcity of land, has constrained northern herders’ movement, forcing them to move further south into farmer’s territory, creating a deadly conflict between them.30 This is limiting the groups to live peacefully together. Pastoral-sedentary dynamics have existed in Nigeria and West Africa in general for centuries.31 Historically, the relations between herders and farmers in West Africa have been characterised harmonious.32 By and large, they lived in a relatively peaceful symbiotic relationship: herders' cattle would fertilise the farmers’ land, and in exchange, the cattle would fertilise the fields for the following year’s harvest.33 Alternatively, farmers would enter into contracts with herders by exchanging milk for whatever the crops have produced, such as corn.34 Given the relationship between these two communities, systems in place handled and resolved contentious cases.35 If herders fail to control their herd, the landowner will take the dispute to the courts, such as customary institutions with traditional rulers and chiefs, state administrators or formal courts, which invariably ends in the herder paying heavy compensation for damaging the crops.36 However, these mechanisms for adjudicating claims over land and water have deteriorated, and in the last decade, reports of violent clashes between these two groups have increased significantly.37 In Nigeria, the herder-farmer conflict is already a significant instability and death toll that is not seen anywhere else. According to Amnesty International, in 2015 – 2018, over 3,600 people have died in clashes between herders and

29 Udo Jude Ilo, Ier Jonathan-Ichaver & Yemi Adamolekun, ‘The Deadliest Conflict You’ve Never Heard of. Nigeria’s Cattle Herders and Farmers Wage a Resource War’ Foreign Affairs (23 January 2019) <https://www.foreignaffairs.com/articles/nigeria/2019-01-23/deadliest-conflict-youve-never- heard> accessed 22 June 2021.

30 Olivia Bizot, ‘Farmer-herder crisis in Nigeria’s Middle Belt could ‘blow up into a civil war’’

France24 (28 April 2021) <https://observers.france24.com/en/africa/20210428-farmer-herder-crisis- in-nigeria-s-middle-belt-could-blow-up-into-a-civil-war> accessed 22 June 2021.

31 International Crisis Group, ‘Herders against Farmers: Nigeria’s Expanding Deadly Conflict’ (n 2) 1.

32 Ibid.

33 Ibid.

34 Mustafa B. Ibrahim, ‘The Fulani – A Nomadic Tribe in Northern Nigeria’ (1966) 65(259) African Affairs 170, 174.

35 International Crisis Group, ‘Herders against Farmers: Nigeria’s Expanding Deadly Conflict’ (n 2) 6.

36 Ibrahim (n 34) 174 – 175; Karim Hussein, James Sumberg & David Seddon, ‘Increasing Violent Conflict between Herders and Farmers in Africa: Claims and Evidence’ (1999) 17(4) Development Policy Review 397, 400 – 401 <https://library.fes.de/libalt/journals/swetsfulltext/9632968.pdf>

accessed 22 June 2021.

37 International Crisis Group, ‘Herders against Farmers: Nigeria’s Expanding Deadly Conflict’ (n 2) 6.

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farmers, which is higher than the number of people who died from the terrorist group Boko Haram.38 In addition, over 18 000 people have been internally displaced in the last decade due to the conflict.39

The following sections give an extensive overview of the herder-farmer conflict in Nigeria: the geographical context, the Fulani herders, the causes, and the national responses to the conflict.

2.1 The Federal Republic of Nigeria

Nigeria is a country in West Africa, bordering Niger, Chad, Cameroon and Benin. The federation comprises 36 states and 1 Federal Capital Territory.40 Under the Nigerian Constitution, all 36 states are co-equal, but the sovereignty resides with the Federal Government. 41 The Federal Capital Territory is the capital of Nigeria and located in Abuja. It administered by elected officials whom the Federal Government supervises. Each state is divided into Local Government Areas. 42

Nigeria is divided into six geopolitical zones. These are the North Central (Benue, Kogi, Kwara, Nasarawa, Niger and Plateau states); North East (Adamawa, Bauchi, Borno, Gombe, Taraba and Yobe states); North West (Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto and Zamfara states); South-East (Abia, Anambra, Ebonyi, Enugu and Imo states); South West (Ekiti, Lagos, Ogun, Ondo, Osun and Oyo states); and South (Akwa Ibom, Bayelsa, Cross River, Delta, Edo and Rivers states).43 The North Central zones are also referred to as the Middle Belt.44 Many parts of the country have been affected by the conflict; however, the most

38 Amnesty International, ‘Harvest of Death: Three Years of Bloody Clashes Between Farmers and Herders in Nigeria’ (2018) 16

<https://www.amnesty.org/download/Documents/AFR4495032018ENGLISH.PDF> accessed 22 June 2021.

39 Adémóla Òrúnbon, ‘Herders and farmers clash over land: matters arising’ Vanguard (29 January 2021) <https://www.vanguardngr.com/2021/01/herders-and-farmers-clash-over-land-matters-arising/>

accessed 22 June 2021.

40 Constitution of the Federal Republic of Nigeria 1999, Art 3(1).

41 J. F. Ade Ajayi & others, ‘Nigeria’, Britannica (2020)

<https://www.britannica.com/place/Nigeria/Government-and-society#ref259749> accessed 22 June 2021.

42 Constitution of the Federal Republic of Nigeria 1999, Art 3(6).

43 ‘Geopolitical zones of Nigeria’, Wikipedia

<https://en.wikipedia.org/wiki/Geopolitical_zones_of_Nigeria> accessed 22 June 2021.

44 Haranu Izah, ‘The Middle Belt: History and politics’ Nasarawa State Weekly Newspaper (29 November 2004)

<https://web.archive.org/web/20120229202021/http://www.nasarawastate.org/newsday/news/culture/1 1129114540.html> accessed 22 June 2021.

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recent surge in violence is mostly in the Middle Belt.45 The persistent attacks in Benue state have had a spill-over effect on the neighbouring state of Nasarawa.46 Especially along the Lake Chad basin, there is an increased struggle between farmers and herders.47

2.2 Fulani’s as herdsmen

Nigeria has over 250 ethnic groups, amongst which the most numerous are Yoruba, Igbo, and Hausa/Fulani.48 According to the International Crisis Group, most of the herders in Nigeria from the traditionally nomadic and Muslim Fulani make up 90 per cent of Nigeria’s pastoralists.49 The Fulani’s, Fula or Fulbe are an ethnic group of people spread over many countries, predominantly in West Africa.50 The origin of the Fulani seems to be somewhat obscure. However, some views trace the Fulani roots from Senegambia to West Africa and the Sahel region, up to Western Sudan and the Central African Republic.51 The Fulani’s then started migrating into Northern Nigeria around the thirteenth or fourteenth century. They began to drive their cattle into the Middle Belt zone during the dry season.52 Other views trace them from both North Africa and sub-Sahara Africa into Central and West Africa from the Senegal region, where they spread in all the countries in West Africa.53

Over time, the Fulani’s have established themselves as a religious group. They are one of the early tribes to embrace Islam, and through their nomadic lifestyle, creating several routes across West Africa, they have spread Islam.54 In the nineteenth century, the Muslim Fulani clans successfully gained control over northern Nigeria.55 Since then, the Fulani’s split into two

45 Emmanuel Akinwotu, ‘Nigeria’s Farmers and Herder Fight a Deadly Battle for Scarce Resources’

The New York Times (25 June 2018) <https://www.nytimes.com/2018/06/25/world/africa/nigeria- herders-farmers.html> accessed 22 June 2021; see appendices for a map of Nigerian States with High Incidence of Herder-Farmer Casualties.

46 Egbuta (n 5).

47 Ibid.

48 ‘Nigeria’ (Minority Rights Group International, 2018) <https://minorityrights.org/country/nigeria/>

accessed 22 June 2021

49 International Crisis Group, ‘Herders against Farmers: Nigeria’s Expanding Deadly Conflict’ (n 2) 1.

50 Roosevelt Osazenaye Idehen & Ubelejit Renner Ikuru, ‘Migration and the Emerging Security Challenges in West Africa: Case of Fulani Herders/Sedentary Farmers Conflicts in Nigeria’ (2019) 8(4) International Journal of Arts and Humanities 128, 129.

51 Ibid.

52 Ibid 130.

53 A. G. Adebayo, ‘Of Man and Cattle: A Reconsideration of the Traditions of Origin of Pastoral Fulani of Nigeria’ (1991) 18 History in Africa 1, 3 – 11 <https://www.jstor.org/stable/3172050> accessed 22 June 2021.

54 Ibrahim (n 34) 171.

55 Adebayo (n 53).

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groups.56 One group known to be the ‘town Fulani’ are urban dwellers, and most of them now engage in commerce, administration, and education.57 Members of this group found political and economic fortune and are part of the upper level of Nigerian society. They are generally found in positions of importance and responsibility.58 The other group continued with its pastoral life and has remained as such today.59 Often they are distinguished by the name

‘Bororo’, referring to them as bush or cow Fulani.60 This Fulani group is highly nomadic and maintains a close system refusing to be integrated into the general Nigerian society.61 The ‘town Fulani’ took on many characteristics of the peoples living in northern Nigeria and gradually lost their language, although they have retained a cultural bond with the pastoralist Fulani.62 Currently, their (political) relationship seems to be somewhat an ambiguous situation. Most writers speak of the Fulani in a homogenous manner; however, this thesis is concerned with the Fulani, who is still engaged in herder practices when referring to the Fulani’s.

Today, the Fulani herder communities in (mainly) northern Nigeria are known for their nomadic cultural tradition of herding cattle, goats, and sheep across vast dry hinterlands, searching for green pastures for their herds to graze on.63 Their transhumance movement is both random and planned. However, a primary factor is searching for abundant natural resources, such as grass and water, for the cattle.64 Their primary source of income constitutes the sale of goat, sheep and dairy products as milk.65 Generally, herder groups live in the arid and semi-arid parts of Northern Nigeria. However, due to heightened drought in the northern states, the lifestyle of the herder groups is affected, forcing them to adapt to changing circumstances.66

56 Ibid.

57 Adebayo (n 53).

58 Ibrahim (n 53) 171.

59 Ibid.

60 Ibid.

61 Adebayo (n 53) 2.

62 Roger Blench, ‘The Expansion and Adaption of Fulbe Pastoralism to Subhumid and Humid Conditions in Nigeria’ (1994) 34(133/135) Cahiers d’Études Africaines 197, 198.

63 United Nations Office for West Africa and the Sahel, ‘Pastoralism and Security in West Africa and the Sahel’ (2018) 69 – 71

<https://unowas.unmissions.org/sites/default/files/rapport_pastoralisme_eng-april_2019_-_online.pdf>

accessed 22 June 2021.

64 Ibid.

65 ‘Fulani’ Worldmark Encyclopedia of Cultures and Daily Life (3rd ed., Gale 2017) vol 1, 239, 239

<https://go.gale.com/ps/i.do?p=GVRL&u=amst&id=GALE%7CCX3648200049&v=2.1&it=r&sid=bo okmark-GVRL&asid=cc7d1643> accessed 22 June 2021.

66 Blench (n 62).

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2.3 Causes of the conflict

The causes of the conflict between farmers and herders are complex and multidimensional. The leading direct and indirect causes which have resulted in growing violent conflicts are climate change, population growth, increasing insurgencies and lack of political will.

2.3.1 Climate change

The conflict’s roots lie primarily in the lack of pastures and water sources in the country. 67 Climate change has led to frequent droughts, land degradation, or desertification, which have altered migration routes, limited access to land and reduced the availability of reliable water sources. 68 It is no news that this global phenomenon is currently affecting many parts of the world with its significant consequences. Nearly 70 million people are already estimated to be harmed by desertification in the Sahel, and 30 million are affected by the rapidly shrinking Lake Chad, whose water volume has decreased roughly 90% since 1963.69 This includes the farmers and herders’ communities in Nigeria. In West Africa, in general, the changing climate is undoubtedly taking a toll on the survival of herders and farmers’ activities. 70 The desertification and other associated changing climatic conditions in the Sahara region towards the Sahel region have a continued effect on the available space for farming and herding practices.71 Consequently, herders are forced to move southwards of Nigeria with their cattle into new communities, resulting in more competition over land and water use and more frequent disputes with farmers about land and water use.72

2.3.2 Population growth

Nigeria is booming. Now more than ever. The country is the most populous in Africa, and the seventh-most populous country globally, with an estimated population of 200 million in 2019.73 Since its independence, the Nigerian population grew with over 145 million people and the

67 Abba Gana Shettima & Usman A. Tar, ‘Farmer-Pastoralist Conflict in West Africa: Exploring the Causes and Consequences’ (2008) 1(2) Information, Society and Justice 163, 172

<https://core.ac.uk/download/pdf/36771572.pdf> accessed 22 June 2021.

68 Egbuta (n 5).

69 Shettima & Tar (n 67) 172 – 173.

70 Leif V. Brottem, ‘Environmental Change and o in Agro-Pastoral West Africa’ (2016) 44(5) Human Ecology 547, 549 <https://www.jstor.org/stable/44132345> accessed 22 June 2021.

71 Ibid.

72 Egbuta (n 5).

73 ‘Population, total – Nigeria’ (The World Bank)

<https://data.worldbank.org/indicator/SP.POP.TOTL?locations=NG> accessed 22 June 2021.

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growth is expected to persist.74 Ongoing urbanisation and demographic shifts in present Nigeria have increased food and animal products’ demand as a basic human need.75 Moreover, this increase demands farmland expansion adding pressure on the available lands. This also implies an increase in the quest for space for farmers. However, due to industrialisation and urbanisation, available land is more likely to be claimed by big agriculture businesses, leaving little or nothing for farmers’ survival.76 Consequently, more farmers and herders try to use the same land, while land availability in many areas is diminishing. It is important to note that climate change and population growth are not direct causes of these violent conflicts.77 Instead, these changes often exacerbate the frequency of disputes because it makes resources scarcer.

2.3.3 Growing insurgent groups

A significant cause for the conflict’s escalation is the rapid growth of militias. Jihadists and insurgent groups exploit the herder-farmer tensions to further their objectives and expand their operations.78 The rise of their activities across the Sahel and West Africa has resulted in herders’

restricted movement in formerly accessible areas for them to access.79 Especially in Nigeria’s northern states, where the Boko Haram insurgency, rural banditry and cattle rustling is driving herders southward.80 Under such conditions, following traditional grazing routes would risk life and cattle.81 This has changed herders’ routes, forcing them to find new terrain.82

74 Egbuta (n 5).

75 Ibid.

76 Ibid.

77 Ibid.

78 International Crisis Group, ‘Herders against Farmers: Nigeria’s Expanding Deadly Conflict’ (n 2) 6.

79 Kaley Fulton & Dr. Benjamin Nickels, ‘Africa’s pastoralists: A new battleground for terrorism’

(The Broker, 13 March 2017) <https://www.thebrokeronline.eu/africa-s-pastoralists-a-new- battleground-for-terrorism/> accessed 23 June 2021.

80‘Sources: Boko Haram kill 19 Nigeria Herders in Clashes’ VOA News (15 December 2019)

<https://www.voanews.com/africa/sources-boko-haram-kill-19-nigeria-herders-clashes> accessed 23 June 2021; Orji Sunday, ‘Nigeria cattle crisis: how drought and urbanisation led to deadly land grabs’

The Guardian (11 January 2021) <https://www.theguardian.com/environment/2021/jan/11/nigeria- cattle-crisis-how-drought-and-urbanisation-led-to-deadly-land-grabs> accessed 23 June 2021.

81 International Crisis Group, ‘Stopping Nigeria’s Spiralling Farmer-Herder Violence’ (n 6) 4.

82 Akinwotu (n 45).

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2.3.4 Lack of political will

Lack of political interest remains a hindering factor.83 There is a near absence of political will to find lasting solutions to the ongoing conflict between the herdsmen and farmers at all governmental levels. The Federal government has made attempts to regulate and control pastoral activities.84 However, the proper political will is needed to enforce laws. Moreover, there is a perception that the government is being sympathetic to the herders’ activities. Many believe President Buhari is inattentive to the killings because he is a Fulani Muslim and complicit in herders' attacks, a charge which the President rejects.85 The President has responded to the public outcry and ordered the Nigerian security forces to crack down on the cattle raiders; however, the issue is much more complicated than this.86 In addition, both farmers and herders have complained that their demands for justice for past criminal acts or attacks get little or no response from federal authorities.87 According to them, the government fails to protect farmer and herder communities or hold the perpetrators of violent attacks responsible.88

2.4 Government’s responses to the herder-farmer conflict

The Nigerian government recognises the challenges farmers and herders are facing. In 2017, the Benue state government introduced a new law that, in its essence, forbids pastoralism.89 The anti-grazing law permits livestock to graze only on ranches; requires people with rear livestock to buy land and establish ranches; prohibits movement of animals within the state except by rail or road; and spells out punishments, including five years’ jail time or a 1 million naira (about

83 ‘Nigeria Spearheads Recharge of Lake Chad with Water Congo River – Buhari’ The Nation (21 June 2018) <https://thenationonlineng.net/nigeria-spearheads-recharge-of-lake-chad-with-water- congo-river-buhari/> accessed 23 June 2021.

84 Egbuta (n 5).

85 Levinus Nwabughiogu, ‘Killings have nothing to do with Buhari being Fulani - Femi Adesina’

Vanguard (14 January 2018) <https://www.vanguardngr.com/2018/01/killings-have-nothing-to-do- with-buhari-being-fulani-femi-adesina/> accessed 23 June 2021; Johnbosco Agbakwuru, ‘To suggest that I, being Fulani, must be encouraging satanic acts is evil – Buhari’ Vanguard (6 July 2018)

<https://www.vanguardngr.com/2018/07/to-suggest-that-i-being-fulani-must-be-encouraging-these- satanic-acts-is-evil-buhari/> accessed 23 June 2021.

86 Naziru Mikailu, ‘Making sense of Nigeria’s Fulani-farmer conflict’ BBC News (5 May 2016)

<https://www.bbc.com/news/world-africa-36139388> accessed 23 June 2021.

87 International Crisis Group, ‘Stopping Nigeria’s Spiralling Farmer-Herder Violence’ (n 6) 6.

88 Ibid 6 – 8.

89 Celestine Verlumun Gever, ‘When Solution triggers more conflicts: Frames and tone of media coverage of the anti-open grazing law of Benue State, Nigeria’ (2019) 12(4) Media, War & Conflict 468, 469 <https://doi-org.proxy.uba.uva.nl/10.1177%2F1750635218810908> accessed 22 June 2021.

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$3000) fine for anyone whose cattle are grazing outside a ranch.90 It also provides compensation to victims whose cattle damage farms or property, and two years of imprisonment for anyone whose cattle injure a person and penalties for cattle rustling.91 The rationale behind anti-grazing laws is to curb conflicts as open grazing, and the destruction of crops by cattle are significant factors in herder-farmer violence.92 However, herders in the Middle Belt have primarily opposed the law because they would have to go through a long process to get permission for their cattle to graze in Benue.93 Moreover, the anti-grazing law resulted in herders and cattle moving into other states of Nigeria.94 The amounts of incidents in Benue decreased, but it shifted to neighbouring states.95

In 2018, the Ministry of Agriculture announced a plan to establish ‘cattle colonies’.96 All across Nigeria, colonies of 5000 hectares were established, forming a cluster of ranches with the necessary resources for the cattle to live off.97 According to the government, the plan would benefit and protect herders from cattle theft.98 In addition, it would reduce the conflicts between farmers and herders, increase the production of herders and create revenue for state governments.99 However, this plan was met with fierce resistance, especially by Southern and Middle Belt states, given that there is land scarcity in Nigeria.100 First, many found the plan’s name provocative since the Fulani people’s influence is historically considered a sensitive topic.101 Creating a particular assigned area for Fulani herders would only fuel a narrative of

90 Ibid.

91 Ibid.

92 Aondofa Aligba, Mary Omanchi & Terzungwe Gbakighir, ‘The Open Grazing Prohibtion and Ranches Establishment Law, Benue State 2017 and Ruga Settlement Policy of the Federal

Government: Constitutional Implications’ (2019/2020) 9 Benue State University Law Journal 171, 175 – 176 <https://bsum.edu.ng/journals/files/law/vol9/article8.pdf> accessed 23 June 2021.

93 International Crisis Group, ‘Stopping Nigeria’s Spiralling Farmer-Herder Violence’ (n 6) 8 – 11;

Laila Johnson-Salami, ‘Nigeria’s grazing crisis threatens the future of the nation’ Financial Times (15 July 2019) <https://www.ft.com/content/a56ccf22-a331-11e9-a282-2df48f366f7d> accessed 23 June 2021.

94 Aligba, Omanchi & Gbakighir (n 92) 176.

95 Ibid.

96 ‘Ogbeh defines cattle colonies, ranches, as panacea to farmers-herders crisis’ Daily Trust (14 January 2018) <https://dailytrust.com/ogbeh-defines-cattle-colonies-ranches-as-panacea-to-farmers- herders-crisis> accessed 23 June 2021; ‘Cattle colonies: How FG plans to end farmers-herders clash’

Daily Trust (28 January 2018) <https://dailytrust.com/cattle-colonies-how-fg-plans-to-end-farmers- herders-clash> accessed 23 June 2021.

97 Ibid.

98 Ibid.

99 Ibid.

100 Olalekan Adetayo and others, ‘Cattle colonies: Southern states shun FG’s request for land’ The Punch (23 January 2018) <https://punchng.com/cattle-colonies-southern-states-shun-fgs-request-for- land/> accessed 23 June 2021.

101 International Crisis Group, ‘Stopping Nigeria’s Spiralling Farmer-Herder Violence’ (n 6) 24.

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Fulani colonisation.102 Secondly, Middle Belt states had not much land to offer and would force farmers to offer their land for cattle colonies.103 Some farmers have been using their land for generations and would have to give up ancestral lands by force for Fulani herders.104 This result would only intensify the conflict between farmers and herders. Thirdly, cattle colonies would require herders to settle in Nigeria permanently.105 This would be contrary to the nomadic culture and origins of the herders, diminishing their ability to express their form of culture.106

To stop the increasing violence, the Nigerian government established the National Livestock Transformation Plan (NLTA) in 2018.107 This plan includes 94 ranches in ten states, in which cattle herders can organise themselves as cooperatives and lease land from the government.108 However, a repeated problem with this plan is the limited availability of the requested land. In addition to this, the target states fear that an influx of Fulani herders could lead to future conflict.109

2.5 Conclusion

Dynamics between farmers and herders have existed in West Africa for centuries. However, in the last decade, conflicts between farmers and herders have escalated, resulting in many casualties, especially in Nigeria’s Middle Belt. An important root cause is the lack of access to natural resources such as land and water, which has caused migration routes to be altered for pastoral Fulani herders and added pressure on local farmers. Due to multiple factors such as climate change, population growth, growing insurgencies, and lack of presence and will of state authorities, the conflict has only escalated. Unfortunately, Nigeria has made attempts to restore the security and peace between the herders and farmers, yet it could not effectively respond to the conflict. Even more so, it has only contributed to the escalation of the conflict. Therefore, there is an urgent need for a sustainable plan to end the crisis.

102 Ibid.

103 Ibid 25.

104 Ibid.

105 Ibid.

106 Ibid.

107 ‘Fed Govt to build 94 ranches in 10 states’ The Nation (20 June 2018)

<https://thenationonlineng.net/fed-govt-to-build-94-ranches-in-10-states/> accessed 23 June 2021.

108 Ibid.

109 Egbuta (n 5).

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3. The African Charter and Access to Natural Resources

The African Charter on Human and Peoples’ Rights is unique in its human rights guarantees.

As mentioned earlier, the African Charter reflects an African take on human rights, which are at the same time also not typically or exclusively African, as it reaffirms its adherence to general international human rights law.110 The uniqueness of the Charter is also defined in the fact that it encompasses both civil and political rights and economic, social and cultural rights, which all have the same legal validity and are equally enforceable.111 From this perspective, human rights are considered in their entirety.112 It is also one of the fewer human rights documents that provide rights for both individuals and peoples.113 The reason for the recognition of ‘peoples’

rights’ lies in the fact that, historically, entire ‘peoples’ in Africa have been colonised and otherwise exploited.114 This reflects its importance as a part of the ‘African’ conception of human rights.

In the jurisprudence related to the African Charter, there has been quite some elaboration on how States should protect human rights related to natural resources. For examples, in cases such as the Endorois case115, Ogoni case116 and Ogiek case117, the African Commission and the African Court have interpreted some of the relevant human rights in the herder-farmer crisis.

Therefore, the following section examines how the protection of access to natural resources is framed in the African Charter concerning the herder-farmer conflict.

110 African Charter, Art 60; Rose M. D’Sa, ‘Human and Peoples’ Rights: Distinctive Features of the African Charter’ (1985) 29(1) Journal of African Law 72, 73.

111 Ebow Bondzie-Simpson, ‘A critique of the African Charter on Human and People's Rights’ (1988) 31(4) Howard Law Journal 643, 645.

112 Ibid.

113 Ibid 645 – 646.

114 Christof Heyns & Magnus Killander, ‘Africa’ in Daniel Moeckli and others (eds), International Human Rights Law (Third edition, Oxford University Press 2018) 469.

115 African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya,

Communication No. 276/03 (4 February 2010) (hereafter Endorois case).

116 African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria, Communication 155/96 (26 October 2001) (hereafter Ogoni case).

117 African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No. 006/2012 (Judgement, 26 May 2017) (hereafter Ogiek case).

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3.1 Obligations of Member States under the African Charter

Under the African Charter, the general obligations placed on States are to recognise the rights and take measures to give effect to them.118 Article 1 states that ‘the Member States of the Organisation of African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them’.119 The African Commission has used this article to remind them of their obligations under the African Charter.120 The African Commission also refers to this provision to call on States to adopt specific measures to address human rights violations.121

Though not explicitly described in the African Charter, the African Commission has adopted a similar approach to the UN and other regional bodies. Member States owe the obligations to ‘respect, protect, promote or fulfil’ the rights under the African Charter.122 This was first clearly outlined by the African Commission in the Ogoni case.123 These obligations apply equally, and there is no hierarchy among them and all rights in the African Charter.124

3.1.1 To Respect

The obligation to respect requires States to ‘refrain from interfering directly or indirectly with the enjoyment of rights’, referring to it as a ‘negative’ obligation.125 Therefore, a State fulfils its obligation to respect rights under the African Charter by not violating and respecting the rights-holders freedoms, autonomy, resources and liberty of their action.126 This obligation also compels States to remove any obstacles that would prevent individuals from enjoying

118 Bronwen Manby, ‘Civil and Political Rights in the African Charter on Human and Peoples’ Rights:

Articles 1–7’ in Malcolm Evans & Rachel Murray (eds), The African Charter on Human and Peoples’

Rights: The System in Practice 1986–2006 (Cambridge University Press 2008) 172.

119 African Charter, Art 1.

120 Murray (n 17) 16.

121 Ibid.

122 Ogoni case (n 116) para 44.

123 Ibid.

124 African Commission on Human and Peoples’ Rights, ‘Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights’ (adopted 24 October 2011) (hereafter Nairobi Principles) para 4; African Commission on Human and Peoples’ Rights, Dino Noca v Democratic Republic of the Congo, Communication No. 286/2004 (22 October 2012) para 156.

125 Nairobi Principles (n 124) para 5; African Commission on Human and Peoples’ Rights, Zimbabwe Human Rights NGO Forum v Zimbabwe, Communication No. 245/02 (15 May 2006) para 152;

African Commission on Human and Peoples’ Rights, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon, Communication No. 272/03 (25 November 2009) para 88.

126 Ogoni case (n 116) para 45.

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guaranteed rights.127 The obligation to respect may require States to ‘take positive measures to ensure that all branches of government at all levels (national, regional and local) and all organs of State do not violate’ rights.128 In the Ogoni case, the African Commission found that ‘with respect to socio-economic rights, the State is obliged to respect the unrestricted use of resources owned or at the disposal of the individual alone or in any form of association with others for rights-related needs. And with regard to a collective group the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs’.129

3.1.2 To Protect

The obligation to protect requires a State to ‘take measures to protect beneficiaries of the protected rights against all political, economic and social interferences’.130 Protection entails creating and maintaining an atmosphere or framework by an effective interplay of laws and regulations so that individuals can freely realise their rights and freedoms.131 In general, this obligation requires States to protect the rights in the African Charter ‘even if the State or its agents are not the immediate cause of the violation’.132 This group would be characterised as

‘Non-State actors’, which includes individuals suspected of terrorist activities, a ‘terrorist group’, multi-national corporations, local companies, local companies, private persons, armed groups, private security contractors, and private individuals.133 Where non-State actors commit violations, it has been recognised as the State’s failure to protect the victims and violations committed by State, not non-State, actors.134

127 N. J. Udombana, ‘Between Promise and Performance: Revisiting States’ Obligations under the African Human Rights Charter’ (2004) 40(1) Stanford Journal of International Law 105, 131.

128 Nairobi Principles (n 124) para 6.

129 Ogoni case (n 116) para 45.

130 Ibid para 46.

131 Ogoni case (n 116) para 46.

132 African Commission on Human and Peoples’ Rights, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v Zimbabwe, Communication No. 295/04 (12 October 2013) para 141.

133 African Commission on Human and Peoples’ Rights, ‘Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa’ (adopted 3 August 2016); Nairobi Principles (n 124) para 7; African Commission on Human and Peoples’ Rights, Association of Victims of Post Electoral Violence & INTERIGHTS v Cameroon (n 125) para 88.

134 African Commission on Human and Peoples’ Rights, Abdel Hadi, Ali Radi & Others v Republic of Sudan, Communication No. 368/09 (4 June 2014) para 92.

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3.1.3 To Promote

The obligation to promote requires a State to ensure that individuals can exercise their rights and freedoms by promoting tolerance, raising awareness, and building infrastructures.135 An example of the obligation to promote is Article 25 of the African Charter, which states the duty to ‘promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see it that these freedoms and rights, as well as corresponding obligations and duties, are understood’.136 In the context of Article 1 of the African Charter, the African Commission has referred to this obligation as a State’s obligation to ‘adopt measures to enhance people’s awareness of their rights, and to provide accessible information relating to the programmes and institutions adopted to realise them’.137

3.1.4 To Fulfil

According to the African Commission, the obligation to fulfil includes a ‘positive’ obligation in which States must ‘move its machinery towards the actual realisation of the rights’.138 For example, when a State fulfils economic, social and cultural rights, it should adopt’

comprehensive, co-ordinated, transparent and contain clear goals, indicators and benchmarks for measuring progress’.139 This obligation is intertwined with the duty to promote human rights.140 This duty incorporates a particular attention to vulnerable and disadvantaged groups in programmes to ensure access to appropriate services and resources.141

The African Commission has given a broad interpretation to the African Chart regarding States’ obligations to fulfil human rights.142 For example, the Commission has imposed several clear obligations upon a government in guaranteeing a ‘general satisfactory environment’ in the Ogoni case.143 The obligation to fulfil ‘requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.144

135 Ogoni case (n 116) para 46.

136 Nairobi Principles (n 124) para 8.

137 Ibid.

138 Ogoni case (n 116) para 47.

139 Nairobi Principles (n 124) para 10.

140 Ogoni case (n 116) para 47.

141 Nairobi Principles (n 124) para 12.

142 Udombana (n 127) 136.

143 Ogoni case (n 116) para 52.

144 Ibid.

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3.2 Protection of African human rights relevant to access to natural resources A right to access natural resources is not recognised as a right as such under the African Charter.

However, the access to natural resources is interconnected to several issues which the Charter captivates. These include the right to property145, the right to take part in cultural life146, the peoples’ right to control and freely dispose their wealth and natural resources147, the peoples’

right to development148 and the right to a general satisfactory environment.149 These articles have been expanded on in a few cases that showcase African judicial bodies' movement enforcing norms when an African government’s conduct violates treaty-protected environmental rights.150 In the Ogoni case, the African Commission dealt with violations of human rights due to Nigeria’s role in the oil development practices in Ogoniland. The African Commission stated that the right to a general satisfactory environment ‘requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation and to secure an ecologically sustainable development and use of natural resources’.151 And that Article 21 provides for ‘a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties’.152

Similarly, in the SERAP v Nigeria case before the ECOWAS Court, the Court ruled that Nigeria had violated African human rights, amongst which central the right to a general satisfactory environment, due to extreme environmental degradation resulting from oil spills in the Niger Delta.153 It stated that the general obligation under Article 1 and the right to a general satisfactory environment together outline the obligation of every State to ‘take every measure to maintain the quality of the environment … such that the State of the environment may satisfy the human beings who live there, and enhance their sustainable development’.154 The Court also established that even though the State was not directly responsible for the oil pollution, it

145 African Charter, Art 14.

146 African Charter, Arts 17 (2) and 17 (3).

147 African Charter, Art 21.

148 African Charter, Art 22.

149 African Charter, Art 24.

150 James Thuo Gathii, ‘Saving the Serengeti: Africa’s New International Judicial Environmentalism’

(2016) 16(2) Chicago Journal of International Law 386, 388

<https://chicagounbound.uchicago.edu/cjil/vol16/iss2/3/> accessed 30 June 2021.

151 Ogoni case (n 116) para 52.

152 Ibid para 57.

153 Community Court of Justice of the Economic Community of West African States, The Registered Trustees of the Socio-economic and Accountability Project (SERAP) v. Federal Republic of Nigeria), ECW/CCJ/JUD/18/12 (14 December 2012) para 113 – 121.

154 Ibid para 82.

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