Customary Governance and Earth Jurisprudence
A presentation to the 1st Parliamentary Council (Attorney General) of Uganda
By DENNIS TABARO
OF African Institute for Culture and Ecology (AFRICE)
At the Workshop on the (Bagungu Customary Laws) Ordinance, 2020
15th-16th April 2021
At Garuga Beach Resort Hotel, Kampala, Uganda.
The purpose of the workshop was to present the “Buliisa District) Bagungu Customary Laws and protection of Sacread Natural Sites ordinance” (Under Section38 and 40 of the local Government act,Cap243)to the 1st Parliamentary Council (Attorney General) of Uganda, for discussion and consequent approval.
This presentation will explain both customary governance and Earth Jurisprudence – and bring to our attention the relationship between the two terms. It will also introduce the community process through which the Bagungu Custodian Clans have revived their customary laws to protect sacred natural sites in Buliisa District.
Customary governance systems are the ancestral governance systems of indigenous and local communities, passed down through successive generations.
These systems are firmly rooted in Nature and ancestral territories, and are exercised through traditions, customs, beliefs, social, cultural, spiritual and livelihood practices, stories and laws of origin, rituals, values and cosmology.
Customary governance ensures a healthy balance between humans and their natural surroundings, for living in harmony with Nature. It is also a governance system that recognizes and respects the inter-relationship, inter-connectedness and inter-related rights of human and non-human beings as subjects in a communion on Earth. (Thomas Berry, The Great work, 1999)
The African Commission recognises customary governance systems and “customary land rights resulting from occupation and use since time immemorial” (ACHPR/WGIP report, 2007). The right to customary governance systems is also enshrined in the African Charter, and legal pluralism encourages African States to enable custodian communities to freely practice their customary laws, within the overall framework of national law.
Sacred Natural Sites and Customary Governance
Sacred natural sites and territories – known widely as places of ecological, cultural and spiritual importance – are where human, peoples’ and nature’s rights converge.
Scientific studies such as the Intergovernmental Platform on Biodiversity and Ecosystem Services highlight the function of sacred natural sites as key biodiversity areas for insect pollinators, for supporting the recovery of threatened species, for regulation of air quality, for freshwater, and for contributing positively to the resilience of the dry land ecosystems to the climate effects of drought.
For this reason, international debate and a growing body of legislation now support the scientific research, traditional knowledge and custodian testimonies, in that sacred natural sites and territories play a critical role in protecting biodiversity, essential for building climate change resilience for the ecosystems on which food systems depend.
They are also at the heart of traditional customs, values, norms and laws from which customary governance systems are derived. For indigenous and traditional cultures, these are sites where the ancestors and the spirit world reside.
Where sacred forests, waterfalls, wetlands and other sacred natural features remain intact, it is thanks to the efforts of custodian communities, their customary laws and governance.
International laws and precedents on Customary Governance and Sacred Natural Sites
Internationally the understanding and recognition of the intrinsic values of sacred natural sites and their related customary governance systems have been gathering pace over the last 40 years.
The call to adopt and implement rigorous policies for the protection of sacred natural and cultural sites and other key biodiversity areas has been made by various government bodies and conservation agencies, as well as civil society groups and custodians.
These include: The UNESCO Universal Declaration on Cultural Diversity (2001), the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003), Convention on the Protection and Promotion of Diversity of Cultural Expressions (2005)
The United Nations Declaration on the Rights of Indigenous Peoples (2007); IUCN resolutions and recommendations on the “Recognition and conservation of sacred natural sites in protected areas” (4.038) and “support for custodians and customary laws in the face of global threats and challenges” (5.147); and the Convention on Biological Diversity.
A Call to African States to Recognise Sacred Natural Sites and Customary Governance
In 2015, a powerful statement and Call to Action was drawn together by African custodian communities of sacred natural sites and territories, from Benin, Ethiopia, Kenya, South Africa and Uganda. They said:
“The future of our children and the children of all the species of Earth are threatened. When this last generation of elders dies, we will lose the memory of how to live respectfully on the planet, if we do not learn from them now.
Our generation has a responsibility like no other generation before us. Our capacity to stop the current addiction to money from destroying the very conditions of life and the health of our planet, will determine our children’s future.”
The custodian communities from East, West and Southern Africa made a plea to protect the well-being of our continent, and of the planet. They called on “the African Commission, governments in Africa, as well as corporations, law and policy makers, and civil society, to recognize that Africa has sacred natural sites and territories and custodian communities who are responsible for protecting them in accordance with our customary governance systems.”
Their statement led to the passing of Resolution 372 by the African Commission for Human and Peoples’ Rights, which calls on States Parties to uphold their obligations and commitments under regional and international law on sacred natural sites and territories and their customary governance systems, and the rights of custodian communities. (ACHPR/Res.372(LX)2017)
Relationship between Customary Governance and Earth Jurisprudence
Developments in international law and practice over the past decades reflect a rapidly evolving consensus on the importance of customary governance systems.
It is noted that the values of culture and tradition that are contained within customary governance systems which have an inherently Earth-centred lens and regulate human behaviour for living in harmony with Nature. Customary laws serve to ensure, for example, that the habitat and the breeding cycles of mammals, birds or fish are not disturbed, that medicinal plants are harvested with care and only during certain seasons for health care, that agricultural activities are prohibited in riverine areas, and that the cutting of live trees from sacred forests is forbidden.
Such customary laws are derived from understanding the laws of the Earth, and reflect the intimate relationship indigenous and traditional communities have with their sacred natural sites and territories. Abiding by the laws of the Earth is also the central tenet for Earth Jurisprudence.
Earth Jurisprudence is both a philosophy and a practice that calls for a transformation from human-centred to Earth-centred ways of seeing and being in the world. It recognises that human laws and governance systems were traditionally derived from and complied with Earth’s laws, which govern life.
The term was first proposed by cultural historian Thomas Berry, who promoted the need for an Earth-centred jurisprudence. He was clear that Earth Jurisprudence, whilst a new term, is not a new philosophy or practice. Indeed, for most of human history we have understood that we are born into this lawful, self-regulating and living being we call Earth or Mother Earth. (For more information: https://www. earthjurisprudence.org)
Earth Jurisprudence questions the very foundations of law – its source and orientation – and invites us to decolonise our thinking and to meaningfully embrace legal pluralism. It affirms that human laws should be aligned with the laws of Nature if we are to live in harmony with our home planet.
Earth Jurisprudence asserts that the Earth is the source of the law and primary text from which humans must read the law .The earth is lawful ,self-regulating and orderly. Human societies will only be viable and flourish if they regulate themselves as part of this wider earth community, and do so in a way that is consistent with the fundamental laws or principles that govern how the Universe functions.
The philosophy presents what is called anthropocentrism; the position that human beings are the master and manager of Nature and therefore give rights to Nature. It is this anthropocentrism that has led to human exploitation and consequent destruction of Nature by way of commodifying it. Earth Jurisprudence, instead, calls for Ecocentrism which asserts for Earth -centered laws which put the Universe as the giver of all rights, not the Humans.
Thomas Berry, the father of Earth Jurisprudence, says that all forms of creation, including human beings are members of the Earth community. He says, “The Universe is a communion of subjects but not a collection of objects” (Thomas Berry; The evening thoughts)
Across Africa, and elsewhere, traditional peoples continue to derive their customs, practices and governance systems from their intimate relationship with Nature, and their understanding of the ecosystems in which they are embedded. Despite external pressures and colonialism, many still revere and protect their sacred natural sites and territories and uphold their customary governance systems.
The Revival of Bagungu Customary Laws
Since colonisation, Bagungu culture and ecosystems have been suppressed and eroded. In 2015, a historic gathering of custodians of sacred natural sites from across Africa took place in Ethiopia’s Rift Valley. Bagungu custodian Kagole Margaret was one of the participants and upon her return, encouraged by the gathering, she worked with Dennis Tabaro, among others, to initiate intergenerational community dialogues among the Bagungu Custodian Clans.
Over the past 5 years, the Bagungu Custodian Clans have embarked on a path to cultural and ecological revival and decolonisation in one of Uganda’s most biodiverse regions. As part of this community-led process, they have undertaken regular community dialogues to revive their traditional knowledge and practices, governance systems, seed diversity and sacred natural sites, healing some of the losses suffered by colonialism and neo-colonialism.
As a result, sacred natural sites have been restored and revitalised and more and more custodians have come forward to participate in the revival process. Bagungu sacred natural sites are a haven for wildlife and include forests, rivers, lake shore and wetlands. In these areas, Bagungu customary law dictates that wildlife must go undisturbed.
In 2017, Bagungu custodians played a critical role in convincing the African Commission on Human and People’s Rights to adopt Res. 372 calling for continent-wide recognition and protection of indigenous sacred natural sites and ancestral lands and the rights of the communities who conserve them. This is a landmark achievement towards the decolonisation of conservation and Africa’s legal systems.
In November 2018, Bagungu clans came together to develop eco-cultural maps and calendars and to document their customary laws and clan constitutions. These co-created documents were central to building a dialogue with councillors, which led to the development of the bill for an ordinance. The Bagungu customary laws protect sacred natural sites in Buliisa, which are highly sensitive ecosystems.
Dialogues and mapping events have also been occasions for seed exchanges. As a result, food security, nutrition and adaption to the changing climate have been boosted in Bagungu communities through the revival of a rich diversity of traditional, locally-adapted, climate-resilient seed varieties.
Cultural pride and community self-governance are surging back amongst the Bagungu as a result of these efforts. They have revived their ecological knowledge together and through the revival of their customary laws they are healing their ecosystems for present and future generations. In the midst of climate and biodiversity emergency and a pandemic caused by ecological destruction, the Bagungu are demonstrating the vital contributions African indigenous people can make to planetary health in the strongest possible terms.
The roots of the converging crises we face lie, ultimately, in our broken relationship with Mother Earth – of seeing ourselves as separate and superior to the living systems that sustain us. Climate and biodiversity collapse, social injustices and global pandemics are symptomatic of the breakdown of our relationship with Mother Earth and systemic violation of her laws.
Sacred natural sites and associated customary laws inherently recognise the rights of Nature, acknowledging human dependency on the health and vitality of the wider ecosystem, thereby demonstrating Earth Jurisprudence in practice.
Recognition of customary governance systems as part of plural legal systems, forms an essential component of respecting the essence of Africa, as aspired to and intended by the African Charter.
“Africa is a plural legal continent, currently recovering from generations of colonial and post-colonial cultural, social and economic devastation. Sacred natural sites and territories are central to the cultural values, morals and traditions and customary laws which we need to revive our customary governance systems.” (from 2015 Custodian Call to Action)
About the Author;
Dennis Tabaro Natukunda is the founder and Executive Director of African Institute for Culture and Ecology (AFRICE), Earth Jurisprudence Practitioner;Member of the UNHarmony with Nature Initiative of the United Nations, and one the 1st members of the African Earth Jurisprudence Collective- (AEJC)