MRG Submission to the UN Special Rapporteur on the Rights of Indigenous Peoples Regarding Criminalisation and Attacks on Indigenous Peoples Defending their Rights
16 March 2018
Further to the consultation being held on 19-20 March 2018 by the Special Rapporteur on the rights of indigenous peoples Victoria Tauli-Corpuz to address the issue of criminalisation and attacks faced by indigenous peoples defending and asserting their rights, Minority Rights Group International (MRG) has the pleasure of submitting the following to the Special Rapporteur to assist in her work. With the help of indigenous activists and colleagues, we have compiled this brief compilation in-depth case-studies concerning Bangladesh, Egypt, Kenya and Thailand.
One can draw generally applicable lessons from these four case-studies. They show that the criminalisation and attacks on indigenous peoples usually occur in a multi-layered and multi-targeted manner. Single instances hardly ever occur in isolation.
There will often be rhetoric – sometimes even from the highest level – denouncing indigenous peoples, their rights and their representatives. There will also often be legislation put in place, e.g. states of emergency, anti-terror laws and/or laws against foreign funding of NGOs, which will be used to criminalise advocacy by indigenous peoples’ representatives. Indigenous traditional activities, such as grazing, hunting and gathering, are routinely criminalised. Peaceful protests are also often met by excessive use of force. Indigenous activists who are arrested often face unfair trials. And all four examples include deaths of indigenous community activists – with inadequate investigation of the circumstances or any justice for family members. These aspects together create a generalised climate of impunity, encouraging other acts of violence.
In recent years, indigenous activists in Bangladesh have been the target of numerous attacks at the hands of both state and non-state actors. Enabling such violence and the criminalisation of activism are laws, policies, and practices which have contributed to making Bangladesh a hostile environment for human rights defenders (HRDs) – particularly those protecting or promoting the rights of indigenous peoples, who lack legal recognition as ‘indigenous’ by the Constitution. This includes indigenous activists in plain lands areas and the Chittagong Hill Tracts (CHT) working to address a range of violations to their rights.
Land grabbing remains an especially critical issue amidst the ongoing seizure of indigenous lands for large-scale ‘development’ projects which lack free, prior, and informed consent of indigenous peoples; the continued settlement of non-indigenous Bengalis on indigenous lands in the CHT; and arson attacks on indigenous villages and homes resulting in the displacement of indigenous peoples such as in December 2016 in Gaibandha and in June 2017 in Rangamati District.
Legislation such as the Information and Communications Technology Act (ICT) Act 2006 (amended in 2013), the Anti-Terrorism Act (2009), and the Foreign Donations (Voluntary Activities) Regulation Act (2016) have had a restrictive impact on freedom of expression and association of indigenous peoples who seek to defend and assert their rights. These laws put those working for the protection and promotion of indigenous peoples’ rights at a heightened risk of criminalisation, as has been highlighted by cases of arrest and detention without due process, as well as enforced disappearances and killings which have increased in recent years.
In the CHT, these laws operate within a particularly hostile, heavily militarised context. Over 20 years since the signing of the CHT Accord between the Parbattya Chattagram Jana Samhati Samiti (PJCSS) representing the indigenous Jumma peoples and the Government of Bangladesh in 1997, the accord remains largely unimplemented, and those advocating to redress this issue frequently face state-sponsored repression. Freedom of expression and association in the area was further curtailed in 2015 with the issuing of a government order barring indigenous peoples in the CHT from interacting with foreigners without supervision, effectively silencing Jumma peoples from speaking to outsiders about the human rights situation. A number of assemblies and rallies organised by indigenous peoples’ organisations have also reportedly been banned.
In July 2016, Mithun Chakma, an indigenous human rights advocate from the CHT and organiser of the United People’s Democratic Front, was detained without charge in Khagrachhari District. Upon securing bail in October 2016, he was notified of several other charges against him. These included charges related to his social media activism, brought under the ICT Act, which has been widely criticised for imposing severe restrictions on the right to freedom of expression and under which activists have routinely been charged. Frequent resulting court appearances curbed his efforts advocating for the rights of indigenous peoples, and in January 2018 Mithun Chakma was fatally shot upon returning home from court, although a full investigation into his murder is pending.
According to the Kapaeeng Foundation, in 2016 191 members of indigenous peoples’ organisations, indigenous HRDs, and innocent indigenous villagers across Bangladesh had ‘fabricated’ cases filed against them. Moreover, atrocities carried out against indigenous HRDs have allegedly involved state actors, such as law enforcement and military personnel as well as local political officials. In April 2017, indigenous student leader Romel Chakma was arbitrarily arrested and died after allegedly being tortured by the army in Rangamati District. Just a few years prior, in August 2014, Timir Baran Chakma, an indigenous activist from the CHT, was killed while reportedly in military custody.
More recently, on 15 February 2018, Chakma Circle Adviser Rani Yan Yan and one of her volunteers were violently assaulted by men and women in civilian clothes while providing support to two Marma indigenous sisters at the Rangamati General Hospital. The sisters had reportedly been sexually assaulted by soldiers in their home in Orasori village, in Rangamati District on 22 January, and were unlawfully confined in the hospital from 24 January, where the assault against Rani Yan Yan and the volunteer occurred as the sisters were placed against their will in the custody of their parents. This incident is reflective of rising threats against indigenous women’s rights defenders in the CHT, where violence against indigenous women and girls remains a critical issue. As yet, an independent investigation on Rani Yan Yan’s case has not been carried out, and the perpetrators have not been brought to justice.
Impunity enjoyed by the perpetrators of such violations is a key contributing factor to the ongoing criminalisation and targeting of indigenous peoples who seek to assert their rights in Bangladesh. Particularly instructive is the well-known case of Kalpana Chakma, who was the organising secretary of the Hill Women’s Federation when she was kidnapped from her home in Rangamati in 1996 by plain-clothes security personnel. Over 20 years after her abduction, the investigation has yet to be concluded and the perpetrators have not been held to account – possibly the result of delaying tactics to protect those implicated, according to some members of civil society.
Nubian indigenous activists have faced attacks and harassment over the past four years as a consequence of their campaign claiming their right to return to the remaining parts of their ancestral lands located around Lake Nasser, southern Egypt. Nubians were displaced from these lands over the past 116 years, during the construction of the Aswan reservoir and the Aswan High Dam.
These attacks and harassment persist despite the 2014 Egyptian Constitution which stipulates in article 236 that the Egyptian state allows the return of the residents of Nubia to their original territories located around Lake Nasser. This provision has been substantially undermined by Presidential Decree 444/2014 which designates 16 areas belonging to Nubian villages as ‘border-military zones’, effectively banning civilian residence in these areas. These constitute about 125 km of the historical lands of Nubia. Furthermore, in 2016, the Egyptian government included part of the Nubian lands for sale to investors within the economic project on land reclamation for agricultural purposes called the ‘One and a Half Million Acres Project’.
Nubian youth led by the General Nubian Union have called on the Egyptian government to implement the provisions of article 236. Nubian activists also planned a peaceful protest in November 2016 in the form of a convoy called ‘Nubian Return Convoy’, to push the government to abandon the plan to sell their land. The convoy was besieged in the desert between Aswan and Abu Simbel by security forces. The security forces also prevented supplies (food and drink) from reaching the protesters for 48 hours. The security services in Egypt then harassed the young activists. In January 2017, the first incident of arrests of the Nubian activists took place. A protest against a new displacement of Nubian villagers in West Aswan was organized. This displacement was further to Decision of Expropriation No. 498 /2016. Seven young activists were arrested and later released according to complaint 74/2017. They were released after 48 hours, following investigation by the Public Prosecution. They were charged with disrupting the implementation of a presidential decision, collective gathering and road obstruction.
In the same month, Egyptian President Abdel Fattah al-Sisi attended a youth conference in Aswan Governorate. While he issued a statement excluding the Nubian region from the ‘One and a Half Million Acres Project’, the President also threatened the ‘evil people’ who are inciting the Nubian society, likely referring to young activists.
In February 2017, a security decision was issued to dissolve the board of directors of the General Nubian Union and remove its chairperson. Nubian activists held a rally after which these decisions were revoked.
Then, in July 2017, the Prime Minister issued a decree (which was not published in the official gazette) to compensate the Nubians for their land. A compensation committee was formed, including the Minister of Justice and the Governor of Aswan. It requested the Nubian community to provide proof of their old properties within the areas from which their ancestors were displaced. The Nubian organizations objected to this decree, given that the successive Nubian displacements took place beginning more than 116 years ago, and many of these documents have been lost.
As a result, a march was organized in September 2017 in reaction to this decision. On 3 September 2017, Nubian activists decided to conduct a musical march called the ‘March of the Drums’ requesting the implementation of the provisions of the Egyptian Constitution to return Nubian people to their original lands. The Egyptian security forces attacked protesters and arrested 24 of them. A 25th person was arrested on 9 September as he came to visit the detainees. Among the detainees were: the former President of the General Nubian Union, a human rights defender; the President of the Association of Nubian Lawyers; and the President of the former Nubian Union in France. In addition to the detainees, seven others were listed as defendants in the case.
On September 4, 2017, the detainees were interrogated by the Public Prosecution at 6 am, on an official holiday without their lawyers. They were charged with holding an unauthorized demonstration, road obstruction, carrying leaflets and funding the protest. They were detained for four days pending investigation.
Hearings for extending the custody period were held in their place of detention, namely the Shalal Camp, a security camp rather than in a court of law. On 3 October 2017, when the custody was extended again for 15 days the families objected outside the court. Security forces used tear gas in front of Aswan Court in order to disperse family members and colleagues of the detainees. Seven other people were arrested according to Complaint No. 5653 /2017. They were held for 15 days pending investigation on charges of demonstrating and blocking the road. They were released after 30 days’ detention on a bail of five thousand Egyptian Pounds each.
The detention of the 24 Nubian activists continued until the death a detainee (Jamal Sorour) due to medical negligence inside the prison on 4 November 2017. Many of Sorour’s relatives and colleagues protested in anger over his death in Kalabsha area in South Egypt. Clashes took place between the protesters and the security forces, which resulted in the arrest of ten other individuals who were taken to the Shalal prison. They were charged with blocking the road and railway, and damaging public facilities. On 9 December, the ten individuals arrested during the Kalabsha events were released on bail of five thousand Egyptian Pounds each.
After Sorour’s death, the Public Prosecutor’s Office referred the ‘Drums Protest case’ of the 25 detainees to the Aswan Misdemeanour State Security Emergency Court under Case No. 28 /2017. This is an exceptional court which does not uphold fair trial standards. Its verdicts are implemented upon the President’s approval and thus cannot be appealed. At the first trial session held on 14 November 2017, 24 activists were released and the hearings adjourned.
There are now three cases in court: the 32 Nubian activists’ Case No. 28 /2017, where the date for the verdict has been extended exceptionally on 27 February 2018. The final verdict is now expected to be issued in March 2018; the seven individuals arrested after protesting in front of the court on 4 October – this has been referred to a regular court; and the events of Kalabsha are still being investigated by the Public Prosecution after six other activists were listed as defendants.
Indigenous leaders, community members and entire communities in Kenya continue to be criminalized when they claim or assert their rights. Examples include the arrest, on 8 October 2017, of Emily Chemutai, member of the Ogiek people, together with her children by the police in Elburgon in Nakuru County for going back to her family’s ancestral land from which she had been evicted in March 2016. On various occasions in January 2018, officers from the Kenya Wildlife Service (KWS) and Kenya Forest service (KFS) have harassed, arrested, detained and confiscated the personal belongings of members of the Ogiek community in Sasimuani, Nkareta and Olpusimoru in Narok County, when they have attempted to assert their customary hunting and gathering rights in the Mau Forest complex.
In 2017, hundreds of indigenous pastoralists were incarcerated for entering white-owned ranches in Laikipia, Kenya to assert their livestock grazing rights, as they have been doing for centuries. And throughout 2017 and early 2018, members of the Sengwer community have regularly been arrested and forcibly evicted by officers of the KFS for living in their ancestral territories in Cherangany forest. Forced evictions have included the burning down of homes. Despite court orders barring such evictions, the KFS has continued with them, which resulted in the killing of a Sengwer land rights activist, Robert Kirotich on 16 January 2018. Witnesses say that KFS officers shot at a group of Sengwer, herding cattle. Another Sengwer man David Kipkosgei Kiptilkesi was injured.
Protective mechanisms for indigenous peoples include the Kenya National Commission on Human Rights (KNCHR), which is mandated to act as a watchdog over the Government and to provide key leadership in moving the country towards a rights-based state. Although KNCHR investigates human rights violations against indigenous peoples, it has not provided redress for reasons that range from lack of: enforcement powers, personnel and resources, or government commitment.
In Thailand, indigenous rights defenders are targeted because of their legitimate human rights activities, often related to protecting their rights to traditional territories and resources. In 2014, Karen activist Porlajee ‘Billy’ Rakchongcharoen was last seen in the custody of the Chief of Kaeng Krachan National Park, arrested on the auspices of carrying ‘illegal’ honey. Billy had been working on pushing for legal redress after park authorities burned villagers’ homes and property in the national park. Investigation in his disappearance has stalled, in part due to inadequate legislation in Thailand regarding enforced disappearances.
Indigenous communities are persecuted for encroachment on protected lands, despite legal rulings that allow them to reside. On 7 September 2016, the Thai Central Administrative Court ruled that officials from the Department of National Parks, Wildlife and Plant Conservation were not wrong in burning down Karen houses in Kaeng Krachan National Park, disregarding a 2010 cabinet resolution that gave them rights to reside there. The Supreme Court upheld the ruling on 14 March 2018.
In March 2017, a 17-year old Lahu activist and documentary filmmaker Chaiyaphum Pa-sae was summarily executed in Chiang Mai province by Thai military. The military claimed they had tried to arrest Pa-sae as a drug suspect which he violently resisted, prompting the soldiers to kill him, which the authorities claim was in self-defense. The official investigation has made little progress, with relevant CCTV footage not being produced in court. Pa-sae’s community has long been stigmatized by security officials as drug traffickers.
In 2016, thirty-seven Pakayaw Karen in Mae Hong Son province were convicted for encroachment and illegal logging under the Forestry Master plan of the Thai junta, sentenced to 1-3 years in jail or fined between 10,000-20,000 baht (320-640 USD), using the wood to repair their traditional homes. The Master Plan does not recognize the land tenure rights of indigenous people, but follow-up Order No. 66/2014 states that poor people and those living in protected areas prior to the announcement of the Order will not be affected by the policy, and that the authorities will only apply strict measures to prevent further encroachment into protected areas.
Photo: Ogiek community meeting, Kenya