A little-known Ugandan tribe, evicted from their ancestral lands to make way for three internationally famous national parks that are home to endangered gorillas, have won an important legal victory. The constitutional court of Uganda has held they must be helped and compensated for the loss of their lands. The Batwa people lived in the forests that are now known as the Mgahinga Gorilla National Park, the Bwindi Impenetrable National Park and the Echuva Central Forest Reserve. When they were evicted for the formal proclamation of these reserves, however, they were not paid proper compensation and live under what the court called appalling conditions. The exact extent and nature of the ‘affirmative action’ that the state must now take to improve the condition of the Batwa is to be decided by the high court after hearing proper evidence on what is needed.
Uganda’s Batwa people, forced out of their traditional lands when some of the world’s last reserves for mountain gorillas were declared, are now to be given compensation and a chance at a decent life again.
The Batwa have been forced to live as squatters since they were effectively evicted from what are now the internationally acclaimed Mgahinga Gorilla National Park, the Bwindi Impenetrable National Park and the Echuya Central Forest Reserve. Earlier this month they succeeded in a case brought to Uganda’s constitutional court and, on instruction from this court, they will now put their position to the high court to work out how best to compensate them.
Also known as the forest people, the Batwa gave evidence to the court that they saw the forests as their spiritual and cultural home. Through their legal team they told the court that their eviction from what are now protected wildlife reserves was illegal since they had been in occupation of these forests from ‘time immemorial.’
They claimed that their rights in international law as well as under Uganda’s constitution had been violated. They had used the land from long before colonial rule, and, while conservation of forests was necessary for the safeguarding of biodiversity, it had not been necessary to evict them.
The legal team for the Batwa people said that their way of life was such that they should have been allowed to continue living in the forests even after the forests were declared special reserves. The Batwa who lived in the forests, sometimes called Batwa pygmies, (now regarded as a pejorative term), were hunter-gatherers who collected honey and plants from the forest. They hunted small animals and fished from the rivers and swamps in the area. Their burial grounds and religious sites were also in the forests.
According to the one of the Batwa in whose name the application was brought, several of the group had been exposed to sexual violence as a result of their eviction. In addition, their language and traditional customs were in danger of dying out because the government gave them no support.
They had never been compensated for the loss of their lands caused by the establishment of the protected wildlife areas. Nor were they provided with alternative ways to survive once they were cut off from their traditional way of life.
Evidence accepted by the court showed that the British colonial government in Uganda had not agreed to creating protected reserves for gorillas because – according to an official letter of 1930 – ‘an absolute sanctuary for all wild life could not be reconciled with the needs of the Batwa, a local people who inhabited the area and lived by hunting small animals.’
Shortly after this letter, the UK colonial office was advised that the governor of the colony ‘now proposed to stop short of declaring a national park “chiefly because of the difficulties engendered by the inhabitation by the Batwa pygmies of the district in Uganda now in question.”’ The same letter also noted that the Batwa did not hunt the gorilla.
Writing for a unanimous five-member court, Justice Elizabeth Musoke said she found the evidence of the Batwa ‘more compelling’ than that of the government officials opposed to the Batwa application. This evidence included that the present generation of Batwa were descended from ancestors who inhabited the forests even before colonial rule in Uganda and that their eviction had left them landless.
By comparison, the government had tried to paint the Batwa as people who ‘merely encroached’ on the forest land and who only had ‘user rights’ to the resources of the forests.
The court said that the law required the state to take ‘affirmative action’ in favour of a group where two conditions were met. The group had to have been ‘marginalised’ on the basis of gender, age, disability ‘or any other reason created by history, tradition or custom’. Secondly, affirmative action had to be taken for the purpose of redressing imbalances working against the marginalised group concerned. Clearly, the Batwa were marginalised ‘due to their eviction’ from the lands they had lived on, ‘without payment of compensation’.
‘The Batwa are now relegated to a lesser class of citizens, inherently landless and fated to be encroachers on other people’s land,’ said the court.
Under Uganda’s constitution, the state had to take steps to ensure that a marginalised group such as this ‘feel secure and confident in the knowledge that they are recognised in society as human beings equally deserving of concern, respect and consideration.’
‘I find that the circumstances of the Batwa … call for the taking of all necessary steps in the interest of affirmative action in their favour.
‘I find that no adequate compensation was paid to the Batwa, despite the fact that some monies were paid to some Batwa in about 1991.’
They were disadvantaged because they had been left landless. This ‘destroyed their identity, dignity and self-worth as a people and as equal citizens with other Ugandans.’
What ‘affirmative action’ should the government take in relation to the Batwa?
The court said that evidence on the question of the affirmative action required had been given via affidavits, but that this had not been enough to decide what action needed to be taken to improve the situation of the Batwa.
Musoke therefore referred the matter to the high court to investigate and determine appropriate affirmative action measures. ‘I would urge the high court that the most important consideration is that the situation of the Batwa people must improve. [They] find themselves in a vulnerable and appalling situation.’ The high court should ensure that its orders would be ‘practically effective and enjoyed by all the Batwa people,’ Musoke said.
* 'A matter of justice', Legalbriefs, 31 August 2021