The Constitution and Indigenous Peoples’ Rights in Nigeria

Nigeria, a nation boasting an extraordinary tapestry of over 250 ethnic groups, each with its unique history, culture, and traditions, faces a complex challenge in reconciling its constitutional framework with the distinct rights and aspirations of its indigenous peoples. While the Nigerian Constitution, particularly the 1999 Constitution (as amended), espouses principles of equality and fundamental human rights, its practical application often creates a chasm between legal theory and the lived realities of indigenous communities. This extensive exploration will delve into the constitutional provisions, the inherent challenges, the role of international law, notable case studies, the devastating impact of resource extraction, and the ongoing struggles for cultural preservation and self-determination, aiming for a comprehensive and nuanced understanding of this critical issue.

I. Defining “Indigenous Peoples” in the Nigerian Context: A Constitutional Conundrum

One of the foundational challenges in addressing indigenous peoples’ rights in Nigeria lies in the absence of a universally agreed-upon definition of “indigenous peoples” within the Nigerian legal framework. While internationally, the term generally refers to descendants of those who inhabited a country or geographical region at the time of conquest, colonization, or the establishment of present state boundaries, and who retain some or all of their own social, economic, cultural, and political institutions, Nigeria’s Constitution employs the term “indigene” which has been widely criticized for creating a “dichotomous citizenship.”

The concept of “indigeneity” in Nigeria is often tied to one’s “place of origin” or the community to which one’s parents or grandparents belonged. This differs significantly from the “jus soli” (right of soil) principle, where citizenship is primarily determined by place of birth, as seen in countries like the United States. Instead, Nigeria largely operates on a “jus sanguinis” (right of blood) principle, intertwining birthright with indigenous lineage. This has led to a system where individuals, even if born and having lived their entire lives in a particular state or local government area, may be considered “non-indigenes” or “settlers” and thus denied certain rights and opportunities readily available to “indigenes.”

Section 318(1) of the 1999 Constitution, for instance, implies that only a person who satisfies conditions of “indigeneity” can qualify to be a citizen of a local government or state. Furthermore, Section 147(3) mandates that the President appoint at least one Minister from each state, who must be an “indigene” of that state. These provisions, while seemingly aimed at promoting representation, have inadvertently fostered an “us against them” culture, creating a hierarchical citizenship that undermines national integration and leads to widespread discrimination against so-called “settlers.” This dual citizenship structure, a legacy of post-independence constitutional drafting, has been a persistent source of ethnic tensions and a significant barrier to the full realization of rights for many Nigerians.

II. Constitutional Provisions and Their Limitations: A Mixed Bag of Protections

The 1999 Constitution of the Federal Republic of Nigeria, while not explicitly mentioning “indigenous peoples” as a distinct category with specific rights, does contain several provisions that, in principle, should safeguard the rights of all citizens, including those who identify as indigenous. These include fundamental human rights provisions enshrined in Chapter IV:

• Right to Life (Section 33): Guarantees the right to life, though frequently violated in conflicts involving indigenous communities, particularly in resource-rich areas.
• Right to Dignity of Human Person (Section 34): Prohibits torture, inhuman or degrading treatment, and forced or compulsory labor.
• Right to Personal Liberty (Section 35): Protects against arbitrary arrest and detention.
• Right to Fair Hearing (Section 36): Ensures due process and access to justice.
• Right to Private and Family Life (Section 37): Protects privacy and family life, which is often intertwined with communal land and traditional practices for indigenous groups.
• Right to Freedom of Thought, Conscience, and Religion (Section 38): Upholds religious freedom, crucial for the spiritual practices often tied to indigenous cultures.
• Right to Freedom of Expression and the Press (Section 39): Guarantees freedom of speech and expression.
• Right to Peaceful Assembly and Association (Section 40): Protects the right to gather and form associations, vital for indigenous advocacy and community organizing.
• Right to Freedom of Movement (Section 41): Ensures free movement throughout Nigeria and the right to reside in any part of the country. This right is often undermined by the “indigene-settler” dichotomy, which restricts access to land, employment, and political participation for “non-indigenes.”
• Right to Freedom from Discrimination (Section 42): Prohibits discrimination on the grounds of ethnic group, place of origin, sex, religion, or political opinion. This is a critical provision that, if fully enforced, would address many of the challenges faced by indigenous groups. However, the practical application of the “indigene” concept often directly contradicts this section.
• Right to Acquire and Own Immovable Property Anywhere in Nigeria (Section 43): This fundamental right is often at the core of land disputes involving indigenous communities, especially when their ancestral lands are subject to government acquisition or resource extraction.
• Compulsory Acquisition of Property (Section 44): While allowing for the compulsory acquisition of property for public purposes, it mandates prompt payment of compensation. This provision is frequently a point of contention, with indigenous communities often receiving inadequate or no compensation for their dispossessed lands.

Beyond these fundamental rights, the Constitution also vests control of all minerals, mineral oils, and natural gas in the government of the federation (Section 44(3) and the Land Use Act, 1978, now incorporated into the Constitution). This effectively nationalizes all land, placing control in the hands of state governors, rather than recognizing customary land tenure systems prevalent in indigenous communities. This centralisation of land ownership and resource control is a major source of conflict and marginalization for indigenous groups whose livelihoods, cultural practices, and identities are intrinsically linked to their ancestral lands.

Moreover, the Constitution acknowledges the role of customary law in certain areas, particularly personal law, but its application is often subordinate to statutory law. This creates a disjuncture, as many indigenous legal systems and governance structures are based on customary practices that predate colonial rule.

III. The Indigene-Settler Dichotomy: A Root Cause of Conflict

The indigene-settler dichotomy, deeply embedded in Nigeria’s socio-political fabric and reinforced by certain constitutional provisions, is arguably the most significant blind spot concerning indigenous rights. This distinction categorizes individuals into “indigenes” (those considered native to a particular locality) and “settlers” (those who have migrated from elsewhere). The practical implications of this distinction are far-reaching and detrimental:

• Discrimination and Exclusion: “Settlers” often face systematic discrimination in access to land, employment opportunities, education, political participation, and social services. They may be denied chieftaincy titles, political offices, or even scholarships, regardless of how long they have resided in an area or contributed to its development.
• Ethnic Tensions and Violence: The indigene-settler divide fuels inter-communal conflicts, particularly over land and resources. Cases abound where clashes erupt between groups, with “indigenes” asserting their ancestral claims against “settlers” they perceive as encroaching on their rights. The recurring farmer-herder conflicts, for example, often have deep roots in these indigene-settler dynamics.
• Weakened National Integration: Rather than fostering a unified Nigerian identity, the indigene-settler paradigm promotes parochial loyalties and hinders national integration. It creates a sense of “otherness” within the same national borders, impeding social cohesion and shared progress.
• Undermining Fundamental Rights: The discriminatory practices stemming from this dichotomy directly contravene the constitutional guarantees of freedom from discrimination and the right to freedom of movement and residence.

Addressing this deeply ingrained issue requires a fundamental re-evaluation of how “citizenship” is understood and practiced at local and state levels, moving towards a system that prioritizes residence and contribution over ancestral lineage.

IV. International Law and its Limited Domestication: A Missed Opportunity

Nigeria is a signatory to various international human rights instruments that uphold the rights of indigenous peoples, even if they don’t explicitly use the term “indigenous peoples” in the Nigerian context. Key among these are:

• The African Charter on Human and Peoples’ Rights (ACHPR): This regional instrument, ratified by Nigeria, explicitly recognizes “peoples’ rights,” including the right to self-determination, the right to economic, social, and cultural development, and the right to a satisfactory environment. While the ACHPR does not specifically define “indigenous peoples,” its provisions have been interpreted by the African Commission on Human and Peoples’ Rights to encompass groups facing similar challenges.
• The International Covenant on Civil and Political Rights (ICCPR): Article 27 of the ICCPR states that “in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” While Nigeria has ratified the ICCPR, the application of Article 27 to Nigerian “indigenous” communities remains a complex legal debate.
• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP): Adopted by the UN General Assembly in 2007, UNDRIP is a non-binding declaration that sets out the individual and collective rights of indigenous peoples. It covers a wide range of rights, including self-determination, land rights, cultural rights, and the right to free, prior, and informed consent (FPIC) before any project affecting their lands or territories is undertaken. While Nigeria was among the states that voted in favor of UNDRIP, its principles have not been fully domesticated into Nigerian law. This lack of domestication means that UNDRIP cannot be directly invoked in Nigerian courts, limiting its practical impact.
• International Labour Organization (ILO) Convention No. 169 (Indigenous and Tribal Peoples Convention): This is the only legally binding international instrument specifically on indigenous and tribal peoples’ rights. Nigeria has not ratified ILO Convention No. 169. Ratification would impose specific obligations on the Nigerian government to protect and promote the rights of these communities, particularly regarding land, resources, and cultural heritage.

The limited domestication of these international instruments represents a significant missed opportunity for Nigeria to bolster the legal protection of its indigenous communities. Without explicit incorporation into national law, the principles of self-determination, FPIC, and collective land rights remain largely aspirational rather than legally enforceable within Nigeria.

V. Land Rights and Resource Extraction: A Battleground for Indigenous Communities

The issue of land rights is perhaps the most contentious and critical aspect of indigenous peoples’ struggles in Nigeria. Prior to colonial rule, land ownership was largely communal, governed by customary laws and traditions, with communities holding land in trust for their members. The advent of colonialism and subsequent post-independence legislation fundamentally altered this system.

The Land Use Act of 1978 (now embedded in the 1999 Constitution) effectively nationalized all land in Nigeria, vesting ownership in the state governor. While the Act aimed to simplify land administration and promote equitable access, it dispossessed many indigenous communities of their ancestral lands, replacing customary tenure with a system of statutory rights of occupancy. This shift has had devastating consequences:

• Dispossession and Displacement: Indigenous communities are frequently dispossessed of their lands without adequate consultation or fair compensation, often for large-scale development projects, agricultural schemes, or, most notoriously, resource extraction.
• Environmental Degradation: The unchecked exploitation of natural resources, particularly crude oil in the Niger Delta, has led to widespread environmental degradation, including oil spills, gas flaring, and pollution of water sources. These activities destroy the livelihoods of indigenous communities who depend on their environment for farming, fishing, and traditional practices. The Ogoni people’s decades-long struggle against environmental destruction by multinational oil corporations is a stark example of this plight.
• Loss of Livelihoods: With their lands and waters polluted or acquired, indigenous communities face immense challenges to their traditional livelihoods, pushing many into poverty and internal displacement.
• Violation of Free, Prior, and Informed Consent (FPIC): Despite international norms, indigenous communities in Nigeria are rarely afforded the right to free, prior, and informed consent before projects impacting their lands or resources are approved. Decisions are often made by government agencies or corporations without meaningful consultation with affected communities, leading to resentment and conflict.
• Lack of Benefit Sharing: Even when resource extraction occurs on their ancestral lands, indigenous communities rarely receive a fair share of the revenues or benefits. This exacerbates their marginalization and fuels grievances against the state and extractive industries.

Case studies like the struggles of the Ogoni people in the Niger Delta, the displacement of communities due to dam construction, or the ongoing conflicts over mineral resources in various parts of the country highlight the profound impact of current land and resource management policies on indigenous rights. The concept of “eminent domain,” while constitutionally recognized, is often exercised in a manner that disproportionately disadvantages indigenous communities.

VI. Cultural Preservation and Traditional Institutions: Under Siege

Indigenous cultures in Nigeria are vibrant and diverse, encompassing unique languages, customs, spiritual beliefs, traditional knowledge systems, music, art, and governance structures. However, these invaluable elements are increasingly under threat:

• Language Endangerment: Many indigenous languages are at risk of extinction due to the dominance of major languages, the lack of support for mother-tongue education, and the erosion of traditional practices that transmit linguistic heritage.
• Erosion of Traditional Knowledge: Traditional ecological knowledge, medicinal practices, and agricultural techniques, developed over centuries and crucial for sustainable living, are being lost due to environmental degradation, displacement, and the marginalization of traditional knowledge holders. There is a growing recognition of the need for legal frameworks to protect traditional knowledge and cultural expressions from misappropriation.
• Weakening of Traditional Institutions: While traditional rulers and institutions still hold significant influence in many communities, their constitutional role is largely advisory. Decades of military rule and the imposition of Western governance structures have diminished their formal authority and often politicized their appointments, undermining their legitimacy and ability to protect their communities’ interests. There are ongoing calls for greater constitutional recognition and integration of traditional institutions into formal governance, while also ensuring democratic principles and gender inclusivity.
• Cultural Assimilation: The pressure to conform to dominant cultural norms, coupled with limited opportunities for cultural expression and transmission, contributes to cultural erosion.

The protection of intellectual property rights over traditional knowledge and cultural expressions is an emerging area of legal discourse in Nigeria, seeking to prevent the unauthorized exploitation of indigenous heritage without benefit-sharing.

VII. Self-Determination and Autonomy: An Unresolved Aspiration

The concept of self-determination, while a cornerstone of international human rights law, remains a highly sensitive and often misunderstood issue in Nigeria. For many indigenous communities, self-determination is not necessarily about secession but about the right to determine their own political, economic, social, and cultural development, to have greater control over their lands and resources, and to govern themselves according to their own customary laws and institutions within the Nigerian federation.

However, discussions around self-determination are often viewed through the lens of secessionist movements, leading to suspicion and a strong centralist stance by the Nigerian government. The agitation by groups like the Indigenous People of Biafra (IPOB), for instance, highlights the deep-seated grievances related to perceived marginalization, economic exclusion, and historical injustices that resonate with the broader aspirations for self-determination among various ethnic groups.

The Nigerian Constitution, while promoting national unity, does not explicitly provide mechanisms for the exercise of self-determination in a manner that would grant significant autonomy to indigenous communities. This lack of a constitutional framework for meaningful self-governance contributes to feelings of disempowerment and marginalization among many indigenous groups.

VIII. Pathways Forward: Towards a More Inclusive Future

Addressing the complex challenges surrounding the Constitution and indigenous peoples’ rights in Nigeria requires a multi-pronged approach that goes beyond mere legal reforms.

• Constitutional Reforms:
  • Redefining “Citizenship”: A crucial step is to re-evaluate and reform the “indigene-settler” dichotomy by amending constitutional provisions that perpetuate discrimination based on place of origin. A move towards a more inclusive, residence-based citizenship model would foster national integration and ensure equal rights for all Nigerians, regardless of their ethnic background or ancestral home.
  • Recognition of Indigenous Peoples’ Rights: While avoiding fragmentation, the Constitution could be amended to explicitly recognize the existence and distinct rights of indigenous communities, drawing inspiration from UNDRIP. This would provide a stronger legal basis for their protection.
  • Land Tenure Reform: Revisiting the Land Use Act to incorporate principles of customary land rights and communal ownership, while ensuring equitable access and responsible land management, is vital. This could involve co-management frameworks for lands and resources.
  • Strengthening Traditional Institutions: Providing clearer constitutional roles and powers for traditional institutions, particularly in local governance, cultural preservation, and dispute resolution, while ensuring accountability and inclusivity.
• Policy and Legislative Interventions:
  • Domestication of International Instruments: Nigeria should move to domesticate key international instruments like UNDRIP and consider ratifying ILO Convention No. 169 to strengthen the legal framework for indigenous rights.
  • Legislation on Free, Prior, and Informed Consent (FPIC): Enacting specific legislation that mandates FPIC for any development project, resource extraction, or policy decision affecting indigenous lands and livelihoods.
  • Protection of Traditional Knowledge and Cultural Expressions: Developing sui generis legal frameworks to protect indigenous intellectual property rights and ensure benefit-sharing for the commercial use of traditional knowledge.
  • Targeted Development Programs: Implementing development programs that are culturally sensitive and address the specific needs and priorities of indigenous communities, focusing on sustainable livelihoods, education, healthcare, and infrastructure.
• Strengthening Judicial Activism and Access to Justice:
  • Judicial Interpretation: The Nigerian judiciary has a crucial role to play in interpreting existing constitutional provisions in a manner that is more protective of indigenous rights, drawing on international human rights jurisprudence.
  • Legal Aid and Awareness: Providing legal aid services and raising awareness among indigenous communities about their rights and how to seek redress for violations.
• Promoting Dialogue and Reconciliation:
  • National Dialogue: Initiating a national dialogue on the “indigene-settler” question and the broader issue of ethnic relations to foster understanding, reconciliation, and a shared vision for national identity.
  • Conflict Resolution Mechanisms: Strengthening traditional and formal conflict resolution mechanisms to address land disputes and inter-communal conflicts peacefully and justly.
• Education and Advocacy:
  • Curriculum Development: Integrating indigenous histories, cultures, and languages into the national education curriculum to promote inter-cultural understanding and respect.
  • Civil Society Engagement: Supporting and empowering indigenous peoples’ organizations and civil society groups in their advocacy efforts for rights recognition and social justice.

Conclusion

The Constitution of Nigeria, while a foundational document for the nation, presents a complex and often contradictory landscape for the rights of indigenous peoples. The absence of a clear constitutional definition for “indigenous peoples,” coupled with the deeply entrenched “indigene-settler” dichotomy and the centralisation of land and resource control, has created significant challenges. Despite the promise of fundamental human rights enshrined in the Constitution, indigenous communities frequently face discrimination, dispossession, environmental degradation, and the erosion of their cultural heritage.

However, the path forward is not insurmountable. By drawing upon international human rights standards, engaging in genuine constitutional and legal reforms, fostering inclusive national dialogue, and empowering indigenous communities, Nigeria can move towards a more just and equitable future. This requires a fundamental shift in perspective, recognizing that the strength of Nigeria lies not in the homogenization of its diverse peoples, but in the celebration and protection of their unique identities, cultures, and inherent rights as co-architects of the Nigerian nation. Only then can the constitutional promise of equality and dignity truly extend to all, regardless of their ancestral lineage or place of origin.