A/HRC/51/50 Republic of Congo is the only State in Africa that recognizes indigenous peoples in its Constitution (art. 16). In the case of African Commission on Human and Peoples’ Rights v. Republic of Kenya, the African Court on Human and Peoples’ Rights found that Kenya violated article 2 of the African Charter on Human and Peoples’ Rights by failing to recognize the Ogiek population as a distinct tribe.54 In its Constitution, Kenya recognizes the duty of the State to address the needs of members of minority or marginalized communities and members of particular ethnic, religious or cultural communities, as well as other vulnerable groups such as women and children.55 The Constitution of Cameroon mentions indigenous populations in its preamble, while the Constitution of Burundi reserves three seats in the Senate to “people of the Twa ethnicity” (art. 185 (2)). In a case involving the San and Bakgalagadi peoples, the Hight Court of Botswana recognized that “the Applicants belong to a class of peoples that have now come to be recognized as ‘indigenous peoples’”.56 32. The Sami people have been recognized as indigenous peoples in the Finnish Constitution since 1995, although the Sami Parliament reported that there are still challenges regarding how this right should be implemented. In Australia, the demands of Aboriginal and Torres Strait Islanders to have their right to self-determination constitutionally recognized have still not been met.57 However the Government of Australia affirms that it is committed to holding a referendum on the subject within the term of the current administration. 58 33. It is critical to stress that when constitutions or laws recognize indigenous peoples and their rights, they are affirming rather than creating those rights, which are inherent59 and inalienable.60 Such recognition should also be reflected in substantive structural reforms. The fact that States do not attribute juridical personality to indigenous peoples is an obstacle for them in terms of their inclusion as part of formal agreements under the dominant legal system.61 Similarly, despite the extensive recognition that indigenous peoples enjoy in the Mexican Constitution (art. 2), they still have the status of entities of public interest rather than of subjects of public law, a controversial aspect of law that indigenous peoples and scholars have been questioning.62 The constitutional reform intended to change this status, promised in 2019, has not yet materialized. The recognition of juridical personality is essential for indigenous peoples to exercise their rights – above all their rights to selfdetermination and to land, territories and natural resources.63 However, juridical personality should not be a prerequisite for the exercise of the rights of indigenous peoples. Furthermore, in his final report the Special Rapporteur stated that should indigenous peoples who never 54 55 56 57 58 59 60 61 62 63 8 African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/2012 (2017), Judgment of 26 May 2017, paras. 112 and 146. Constitution of Kenya, art. 21 (3), see http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=Const2010. High Court of Botswana, Roy Sesana, Keiwa Setlhobogwa and Others v. The Attorney General, Judgment of 13 December 2006, sect. H.1, para. 5. Submissions of Harry Hobbs and the Castan Centre for Human Rights Law. Submission of Australia. United Nations Declaration on the Rights of Indigenous Peoples, seventh preambular para. Universal Declaration of Human Rights, preamble. Inter-American Commission on Human Rights, Derecho a la libre determinación de los Pueblos Indígenas y Tribales, paras. 310–311. This has been reported for the United States and the Russian Federation (presentations of David Wilkins (United States) and Vladimir Kryazhkov (Russian Federation) at the Expert Mechanism seminar). A/HRC/39/17/Add.2, para. 10; see also Francisco López Bárcenas and others, Los Derechos Indígenas y la Reforma Constitucional en México, 2nd edition (Mexico City, 2002), see https://www.franciscolopezbarcenas.org/_files/ugd/afcdf2_ea87b8b180ae45d08460d19e42ca992b.pdf; and Francisco López Bárcenas, “La diversidad negada: los derechos indígenas en la propuesta de reforma constitucional”, in Globalización, Identidad y Democracia: México y América Latina (Mexico City, Siglo Veintiuno Editores, 2001), pp. 449–463, see https://www.franciscolopezbarcenas.org/_files/ugd/afcdf2_5f891922295943bb9ca650559023c099.pdf. Organization of American States, American Declaration on the Rights of Indigenous Peoples, article IX: “Juridical personality. States shall recognize fully the juridical personality of indigenous peoples, respecting indigenous forms of organization and promoting the full exercise of the rights recognized in this Declaration”; see also Inter-America Commission on Human Rights, Indigenous and Tribal peoples’ Rights Over Their Ancestral Lands and Natural Resources (OEA/Ser.L/V/II, doc. 56/09), 2009, chap. X, paras. 372–375, see http://cidh.org/countryrep/indigenous-lands09/Chap.X.htm#.