A/74/149
recognized traditional communities are acknowledged. Pursuant to section 3,
subsection 1, of the Act, traditional authorities administer and execute customary laws
and are responsible for protecting and promoting the culture, language, tradition and
traditional values of the community and preserving cultural sites, works of art and
traditional ceremonies. Recognized traditional authorities receive funding from the
Government to carry out their functions. 65
65. The Constitution of Botswana provides for a house of chiefs with an advisory
role to the National Assembly and executive authority on issues related to the tribes
in the country. Under section 14, subsection 3 (c), the Constitution provides for a
restriction in the freedom of movement to ensure the protection or well -being of
Bushmen. Governance at the community level is through the system of chief and ward
meetings, recognized and regulated by the Bogosi Act, a system that originated in
Tswana custom, although not necessarily adequate for non-Tswana peoples. 66
66. The 2010 Constitution of Kenya includes several provisions related to
vulnerable and marginalized communities, who are defined in a way consistent with
the language of the United Nations Declaration on the Rights of Indigenous Peoples. 67
It promotes and protects indigenous languages, includes a recognition of the cultural
and intellectual rights of those communities and their right to dual citizenship,
important for indigenous peoples living across national borders, and includes
provisions for affirmative measures. In terms of autonomy and self -government, the
Constitution refers to devolution, meaning the transfer of d ecision-making powers to
authorities at the subnational level, which will increase the participation of indigenous
communities in overall governance. Measures to increase participation in the political
life of the State are also included, as is a chapter o n land and environment, which
provides for the recognition of community lands, a fundamental issue further
developed in the recent Community Land Act (No. 27 of 2016) and through the
establishment of a national land commission.
67. The Special Rapporteur considers that the above-mentioned legal and policy
measures and commitments, as well as the growing regional jurisprudence on the
rights of indigenous peoples, may provide a platform for States and indigenous
peoples to launch or continue a discussion on how to advance the harmonization of
such commitments and measures with international human rights laws on the rights
of indigenous peoples. She stresses the constructive role that engagement with her, as
mandate holder, the regional human rights systems and organizations and the national
human rights institutions can play in that regard.
4.
Recognition of plurinationality and nation-building processes
68. As previously mentioned, the full recognition of the right of indigenous peoples
to self-determination calls for a reconceptualization of the State. A new generation of
constitutions and subsequent legislation has emerged as a result of the assumption of
the plurinational nature of the States, as has the recognition of the need for renewed
nation-building processes to adequately include indigenous peoples.
69. The 2008 Constitution of Ecuador enshrines Ecuador as a plurinational and
intercultural State. It includes a recognition of the rights of indigenous nationalities,
peoples and communities to preserve and develop their models of social organization
and authorities, the exercise of jurisdictional functions by indigenous authorities and
the application of indigenous justice systems. It also enshrines the rights of
indigenous peoples over their traditional lands and territories and provides that
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66
67
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A/HRC/24/41/Add.1, para. 51.
A/HRC/15/37/Add.2, paras. 10, 11, 16, 50, 51 and 91.
Barume, Land Rights of Indigenous Peoples in Africa, p. 127; A/72/186; E/C.19/2013/18.
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