The legal protection of land rights of the indigenous pygmy remains a concern in the Democratic Republic of the Congo. In spite of some of the applicable international and national laws that govern the land rights of indigenous peoples in the country, it has been the major challenge in the applicability of which the absence of a national policy adequate seems to be one of the key challenges in its execution.
Historical Context and Theories of Dispossession
Based on PROSPER NOBIRABO, M (2008) in his work on the "dispossession of indigenous land rights in RD Congo : historical perspectives and future", of its word of the introduction, the author mentions that researchers say well before the Berlin Conference in 1885, several european traders, missionaries, etc ; lived on the current territory of the DRC.
Some would have gained legal titles to be in good and due form, giving them the right to occupy these lands. Others would be installed under some theories of international law prior to the Seventeenth century, considering Africa as a "terra nullius", this Latin expression meaning : a piece of land or territory which does not belong to anyone, that is to say, a well without a master, where each could be carried out to settle without a legal basis being required.
The occupation of the soil as the main object only came later and, in particular, when the european powers wanted to recognize their right of sovereignty ; It is then that have been entered into numerous treaties, either with traditional leaders Bantu, nilotic sudan, between the european powers, they are characterized by misunderstandings about the nature of the rights transferred ; whereas it was rather a permission to occupy land to the traditional leadership of the congolese.
The europeans dealt most often with the dominant ethnic groups in society, to the detriment of minorities and indigenous bacwa, the bambuti or batwa. During the negotiations, no one has sought to know if for the "pygmies" the ground was inalienable, and what were the real powers of the traditional leaders bantu, nilotic and sudanese on the territories of the congolese at the time.
In the various treaties, the transferor congolese was designated by the words "chief", which was under the mistaken impression that the political structures of traditional congolese were prioritized as those of the europeans. The principle of the sovereignty of european assumed, incorrectly, that these traditional leaders could commit the entire territory. However, the indigenous communities were located outside the sphere of power of the traditional leaders. It is in this confusion that in 1885, king Leopold II of the Belgians, has created the Congo free State, a territory consisting of the possessions of the International Association African, that was his property, whereas two million years ago, the peoples of pygmies lived in the territory of the congolese ; Thus, they were the first occupants, and lived by gathering and hunting.
The waves of migration of other groups (Bantu, Nilotic and Sudanic) to this part of Africa have taken place in the course of the second millennium before Christ, and the latest took place between the Seventh century before Christ. These new communities, such as the Bantu, the Nilotic and the Sudanese, have always belonged to structured societies, the leaders of which came from ancient lines of heads-the chiefdoms.
Lack of Land Ownership and Continued Marginalisation
Indeed, the lack of ownership of land among the indigenous peoples "Pygmy" is the result of the historical fact of their occupation of the forest where, according to the tradition of hunter-gatherers in central Africa, the land rights were recognized neither under customary law, nor under written law. The hunter-gatherer societies are regarded as falling under the jurisdiction of the dominant groups who have claims on the same land. Moreover, the invisibility of indigenous people's land rights from the point of view of customary law and written law has meant that they have not received compensation or land replacement when they were expropriated from their lands for agricultural, conservation, industrial agriculture development or pastures.
The Pygmies, who reside mainly in the DRC, were historically inhabitants of the forests, dependent on hunting and gathering for their subsistence. However, their life took a dramatic turn when the colonial authorities in belgium enacted a law in 1925 creating national parks and promoting tourism in the region. As a result, the pygmies were driven by force from their ancient forests, without any compensation for their land. These spaces, once sacred and abundant, are now prohibited areas, changing forever the way of life of the pygmies.
Faced with displacement and deprivation of land, the Pygmies have become nomads, struggling to survive without resources. Isolated from other communities, they have experienced social exclusion, and have often been caught in conflicts related to land and forest. PPSDR has recognized that the integration of the Pygmies into society was crucial, not only for their well-being but also to foster a peaceful coexistence.
A major barrier to the inclusion of the Pygmies has been their historical marginalisation and lack of advocacy on their behalf. Although they are the first inhabitants of the country, they are left speechless and deprived of the opportunity to express their views and to participate in national debates. The lack of education among native pygmies has even more hampered their ability to have leaders who can represent them effectively with the public authorities.
For decades, since the independence of the Democratic Republic of the Congo in 1960, until the year 2022, the government has not recognized the Pygmies as citizens, which has led to the neglect of their basic rights, including access to health care, education and justice.
This situation affects not only the pygmies of the congo, but also the whole of Africa in general, as in Rwanda, these indigenous peoples "Pygmies" who lived in the forest of Gishwati, the Volcanoes Park and conservation areas of the forest of Nyungwe in Rwanda, have not received compensation, neither for the land from which they have been expropriated, nor for the destruction of their culture and their food resources.
Major Obstacles to the Land Rights of Indigenous Peoples
1. Lack of legal recognition One of the main obstacles is the lack of legal recognition of indigenous peoples' land rights. In many countries, including the DRC, national laws do not recognize customary rights over traditional territories, leaving Pygmy communities defenseless against land grabbing and arbitrary eviction.
2. Forced evictions Indigenous pygmies are frequently evicted from ancestral lands by state authorities or powerful commercial entities without prior consultation or free, prior, and informed consent.
3. Exclusion from decision-making Pygmy communities are systematically omitted from land allocation, logging concessions, mining licenses, and conservation planning directly impacting their survival.
4. Discrimination and social stigmatization Deep-rooted societal prejudice undermines indigenous representation before judicial and administrative bodies.
5. Land and tenure insecurity Forest loss forces indigenous pygmies into precarious casual labor and extreme vulnerability. Dispossessions for national park creation (Virunga 1925, Kahuzi-Biega, Maiko) and industrial concessions (BBC, ITB, SODEFOR) occurred without compensation, violating international conventions.
Omission of Pygmy Land Rights in Ongoing Reforms
Neither the 2006 Constitution nor the 1973 Land Law nor the 2002 Forest Code explicitly address indigenous Pygmy land tenure. Current zoning, REDD+, and EU FLEGT frameworks risk deepening vulnerability unless indigenous territorial rights are proactively secured.
Obstacles to Justice
In spite of Article 12 of the 2006 Constitution providing that all Congolese are equal before the law, and Article 150 establishing the judiciary as guarantor of fundamental rights, access to justice remains elusive for indigenous pygmies. Illiteracy, unfamiliarity with official languages, lack of legal information, geographic remoteness of courts, financial barriers, and judicial bias constitute formidable obstacles.
"Before, in the forest, we had everything we needed for an easy and happy life: food, shelter, medicines, clothes." — Mr BAHIDIKA BALEKE, Pygmy representative, Eastern DRC.
"Today, the pygmies have lost their bearings and their means of subsistence; as a material and spiritual refuge, source of religion, medicine and cultural identity, the forest cannot be underestimated. The close links they have with the forest they venerate and protect for generations is a central element of their identity." — Survival International.
The Legal Turning Point: Law No. 22/030 of 15 July 2022
Under the presidency of Félix Antoine Tshisekedi, the promulgation of Law No. 22/030 of 15 July 2022 on the protection and promotion of the rights of indigenous pygmy peoples marked a decisive legal advance. Article 48 explicitly provides that the Congolese State grants recognition and legal protection to the lands and resources traditionally occupied and used by indigenous pygmy peoples.
Article 42 stipulates that indigenous pygmy peoples have the right to lands and natural resources they possess, occupy or use, and that no relocation can take place without free, prior, and informed consent. Article 47 establishes their right to equitable benefits from commercial exploitation by third parties under agreed terms of reference.
Recommendations and Advocacy to the Congolese Government
In light of the multiple land rights violations faced by indigenous pygmy peoples in the DRC, and to ensure the genuine operationalisation of Law No. 22/030 of 15 July 2022, PPSDR recommends that the Congolese Government :
- Support a nationwide popularisation campaign of Law No. 22/030 across all territories of the country ;
- Ensure land restitution and compensation for Pygmy communities to provide dedicated spaces for cultural preservation, housing, and agricultural development ;
- Establish a dedicated governmental department specifically mandated to address indigenous peoples' concerns while safeguarding their minority identity and culture.
Article published in Goma, April 10, 2024 by PPSDR, a mentoring organisation for indigenous pygmy peoples in the Democratic Republic of the Congo ; Drafted by Enoch MUHINDO MUTHETHE, Coordinator and Founder of PPSDR.
For more information on PPSDR, visit : www.ppsdr.org — Contact us : ppsdrongdasbl@gmail.com
