Sacred natural sites as a global phenomenon

Historically, sacred natural sites have been central to ecological cosmologies. Be it Africa, Asia, the Americas, or even Europe, sacred natural sites occupied a special place in human-nature interrelations.Footnote ¹⁴ These sacred spaces are “land or water having special spiritual significance to peoples and communities”.Footnote ¹⁵ They sit at the intersection of society and nature, representing spiritual, religious or similar sociocultural beliefs. While they hold religious and spiritual significance, sacred natural sites do more than simply represent metaphysical significance. They are also sources of valuable ecological resources for human sustenance and nonhuman ecological balance.Footnote ¹⁶

These sacred natural sites are the bedrock upon which “indigenous cultures have developed customary laws and rituals that govern their interactions with nature, ensuring the preservation of ecological balance and biodiversity”.Footnote ¹⁷ As a culturally relevant, spiritually significant and environmentally grounded aspect of the human-nature interaction, sacred natural sites are also “social institutions that have effectively preserved nature and culture”.Footnote ¹⁸ These sites include “mountains, rivers, trees or water bodies known by indigenous peoples to be inhabited by a deity or numina, more commonly known as nature spirits”.Footnote ¹⁹ The interconnectedness of land and water (or more generally, place or space) and peoples bounded together by a network of belief systems in this intimate manner evolves a unique sociality where humans and nonhumans stand together harmoniously as complementary entities. This interaction is the foundation of an ecological jurisprudence grounded in the idea of law’s interaction with a sacred geography.Footnote ²⁰

To this end, sacred natural sites remind humans of their duty to the nonhuman. It was never a self-assumed superiority of humans over nature. For indigenous peoples, these sites evoke and evolve a body of mores, ethics and laws that ensure they continually aspire to live in harmony with nature. While these sites are found across the world, their significance is impaired by Eurocentric influences. Here, even though the destruction of nature is not specific to one religion, the evidence suggests that the Eurocentric approach to the Christian religion greatly transformed nature. This process started in Europe and quickly spread into colonial jurisdictions and, along with it, a strong rejection of indigenous sacred sites as un-Christian and synonymous to idolatry.Footnote ²¹ These European approaches to nature use and conservation quickly transformed into dominant “settler colonial conservation” practices.Footnote ²² Thus, this European expansionist philosophy became a threat to sacred natural sites as Christianity and colonial law converged with a common purpose of civilizing both peoples and their nature.Footnote ²³

As was evident in this civilizing mission, Eurocentrism threatened disequilibrium through its ambitious development ideologies that carried with them a subtle religious fervour to remake the colonized world in the image of Europe.Footnote ²⁴ Paradoxically, while Christianity revered its own sacred spaces, the colonialists, employing Christian precepts, did not accord similar reverence to those of indigenous non-Christian peoples that pre-existed the colonial encounter.Footnote ²⁵ Yet, whether it is Africa, the Americas or Asia, sacred natural sites remain an integral part of social life.Footnote ²⁶ As Barclay and Steele describe it, the indigenous belief system “is inseparable from the integrity of and access to the place”.Footnote ²⁷ Thus, despite long periods of colonial violence against these spaces, there is now a resurgent consciousness and an increasing turn to the legal values embedded in the social and cultural systems underpinning these sites and their capacity to guide lawmaking for effective nature conservation.Footnote ²⁸

However, while there is a significant uptake of indigenous values underpinning nature conservation through these sites by way of novel reconstructions such as rights of nature, such recent developments have been less prominent in Europe.Footnote ²⁹ Frascaroli and Verschuuren confirm this point by noting that, “incorporating spiritual values into biodiversity management has been a slow process across Europe. This has resulted in under-appreciating the contribution of spiritual and religious traditions to shaping and conserving local biocultural heritage, and in fact overlooking some of the deepest linkages between biological and cultural diversity”.Footnote ³⁰ It is in this sense that a renewal of African customary law and governance of nature through Euro-centred definitions of sacred natural sites is misguided and likely to fail despite its seemingly noble intentions.

The imperial and colonial distortion of nature in Africa

The early attempts at some form of programmatic continent-wide nature conservation in Africa can be traced to colonialism. Of course, nature protection has always been endogenous to African societies.Footnote ³¹ However, colonialism fundamentally reoriented African societies and their ways of life including human-nature interrelations. Colonialism, styled as nature conservation, intruded upon customary laws and influenced Africa’s relationship with nature while legitimizing new forms of international environmental governance.Footnote ³² These Eurocentric ideas radically changed African approaches to engaging with nature that hitherto involved complex religious and spiritual belief systems that inhabited African legal orders.Footnote ³³ In this process, Eurocentric law eroded African ideas and supplanted them with European conceptions.Footnote ³⁴

Under the pioneering nature-specific treaty, that is the 1900 London Convention for the Preservation of Wild Animals, Birds and Fish in Africa, the United Kingdom, France, Germany and other European imperial powers joined together ostensibly for nature conservation in Africa.Footnote ³⁵ These European powers were interested in introducing legal rules backed by their dominant colonial logic into Africa through this treaty. These colonial powers established a discriminatory framework aimed at protecting and conserving selected animals for the benefit of the imperial establishment, especially for trophy and game hunting.Footnote ³⁶ As Gissibl points out, the adoption of the 1900 London Convention was directed by Eurocentric interests as “[t]he conference assembled representatives from all European colonial powers in Africa and agreed upon a convention that claimed imperial stewardship over African nature and asserted that wildlife preservation was part of Europe’s civilizing mission on the continent”.Footnote ³⁷ Thus, even though the 1900 London Convention did not come into force partly because of the First World War and disagreements between colonial administrators and white settler farmers, the treaty’s premise was decidedly against the interests of both nature and African peoples as its inspiration was distinctly a colonial and imperial imperative.Footnote ³⁸

After the First World War, Europe’s imperial powers renewed their interest in colonial approaches to nature conservation in Africa. These approaches involved “[c]ordoning off land for protected areas under [s]tate authority [which] became a colonial tool to extend control over remote territories and reluctant population”.Footnote ³⁹ This process led to the 1933 Convention Relative to the Preservation of Fauna and Flora in their Natural State.Footnote ⁴⁰ This 1933 London Convention expanded the scope of its predecessor, the 1900 London Convention, and this time, it brought within its remit plants and certain animals that were previously excluded under the 1900 London Convention. Notably, the 1933 London Convention also abandoned terminologies like vermin which had been used by colonial administrators to describe supposedly undesirable animals that then legitimized their subsequent extermination.Footnote ⁴¹ Some legal scholars confirm this fact as they point out that the 1933 London Convention, much like its 1900 antecedent, was designed to protect Africa’s animals for European sport hunting, with its one significant transformative heritage being that “it ended the concept of nuisance species”.Footnote ⁴²

However, the 1933 London Convention too, just like its 1990 predecessor, was fixated on imperial interests. As Prost and Otomo argue, the process for classifying nature in Africa under this treaty was predominated by “a growing involvement of scientists and political administrators in the organizational management of the conservation movement”.Footnote ⁴³ In a crude sense, nature conservation in Africa became an experimental project in international relations, law, science and politics where colonial efforts targeted nature for continuous exploitation by European imperialists.Footnote ⁴⁴ This distortion in nature conservation through the science and politics of conservation set the stage for latter interventions, including in the actions of postcolonial African states.Footnote ⁴⁵ As we learn from forestry and environmental conservation scholars, whether it was the 1900 London Convention or its latter iteration under the 1933 London Convention, it was evident that terms like preservation, conservation or protection were premised upon Eurocentric conceptions which were inconsistent with African legal perspectives which emphasized relationality.Footnote ⁴⁶ The influence of the 1933 London Convention was soon exported from Africa to other parts of the world.Footnote ⁴⁷

In many respects, these imperial and colonial-era treaties represented a conjunction of dominant British and German conservation practices. For example, German conservation laws were introduced into present-day Tanzania in the late 1890s.Footnote ⁴⁸ These laws, policies and practices targeted the protection of animals from large-scale hunting. As Gissibl argues in his study on East Africa, “German colonial rule in Tanzania witnessed the formation of a regime of wildlife conservation that emerged from the precolonial and colonial politics of hunting in East Africa”.Footnote ⁴⁹ The British also passed a network of conservation laws in Southern Africa beginning in the 1880s, similar to what the Germans did in their African colonies.Footnote ⁵⁰ Soon, these laws were replicated across Africa, but were also extended to jurisdictions beyond Africa. For example, the British colonial rule in India integrated nature use into the British colonial economy, a process undergirded by colonial laws and imperial control over the Indian sub-continent through the domination of Indian wildlife.Footnote ⁵¹ Thus, the melding of German and British legal rules represented the “early legal governance of colonial conservationism”, and along with them a disruption in indigenous belief systems and the consequent de-sacralization of sacred natural sites.Footnote ⁵²

It is also important to recall that the domination, suppression and re-characterization of nature through legal instrumentalization occurred through legal language. This process of disciplining legal language is observable in the colonial control over nature and sacred natural sites in Africa and elsewhere. This vision of nature preservation and conservation served Eurocentric interests. Additionally, Eurocentric law and legal language became the modes of communicating, assimilating, coopting or neutralizing existing categories of environmental rules that were brought into alignment with the dominant colonial law.Footnote ⁵³ In this way, the replacement of the 1900 and 1933 London treaties in the period immediately following independence without a corresponding transformation in the language of law upon which these foundational ideas of nature conservation proceeded only meant a continuation of these colonial tropes.

The illusion of postcolonial change

The decolonization process in Africa was a frenzied period marked by a resistance to the European hallmarks of colonial rule.Footnote ⁵⁴ One such notable intervention was the call to replace the 1933 London Convention with an Africa-centred approach to nature conservation. This call led to the OAU’s adoption of the 1968 African Convention.Footnote ⁵⁵ This new convention replaced the imperial 1933 London Convention as it expressly provided that “[t]he London Convention of 1933 or any other Convention on the conservation of flora and fauna in their natural state shall cease to have effect in [s]tates in which this Convention has come into force”.Footnote ⁵⁶

The newly adopted 1968 African Convention, under the auspices of the OAU, breathed new life into African ways of doing nature conservation. Some African scholars rightly described this treaty as the “emergence of the first indigenous Africa-wide conservation agreement”.Footnote ⁵⁷ The new treaty was intended to end colonial approaches to conservation in Africa. However, the Eurocentric classificatory heritage of the 1900 and 1933 treaties remained with the new 1968 African Convention, with the list of protected species enhanced under this new treaty.Footnote ⁵⁸ This was partly the result of the leading role played by international conservation organizations like the International Union for Conservation of Nature (IUCN) which incorporated the restrictive classificatory regimes under the 1933 London Convention.Footnote ⁵⁹ Thus, the legacy of the 1933 London Convention was manifest in the 1968 African Convention as it retained the categorization on import and export restrictions of African wildlife and plants.Footnote ⁶⁰ Understandably, the new convention was inspired by a Pan-African attitude which reaffirmed the interest of postcolonial African states to control their natural resources.Footnote ⁶¹ However, the ongoing struggle to assert political and economic sovereignty, and the enduring legacy of colonialism and imperialism, conspired to ensure that these efforts only remained state-centric endeavours, without much consideration for the interests of indigenous peoples nor their nature conservation practices.

Nature conservation also assumed a national security dimension, warranting the use of state-sanctioned force to advance the so-called interests of state sovereignty.Footnote ⁶² In this sense, the economic prospects and commodification of nature, either through licensing systems or other activities like safaris and nature parks within the context of ecotourism, became lucrative even to the postcolonial African state.Footnote ⁶³ As Luoma recently argues, “[t]hey are often denominated as national parks, wildlife reserves, wilderness areas, and nature reserves, among other labels”.Footnote ⁶⁴ This new domination of nature by the postcolonial state is “termed the double fracture of modernity, the salient divide between (post)colonial and environmental histories, movements, and theories”.Footnote ⁶⁵ Thus, ironically, the divergence in theory and practice reinforces the fact that even sacred natural sites across Africa are still under the jurisdiction of the state and not indigenous peoples.Footnote ⁶⁶

Therefore, even though a Pan-African approach was the foundation for the 1968 African Convention, individual state-centric objectives of the newly independent African states rendered this collective approach impracticable. As well, a lack of clarity compounded this situation where concepts like preservation, conservation or protection lacked precise definition.Footnote ⁶⁷ With no exact definition or meaning, African states applied these concepts differently with varying degrees of limited success.Footnote ⁶⁸ This lack of definition (or clarity) created enabling conditions for some African states to pursue objectives that either violated the rights of indigenous communities or chose options that did not align with nature conservation. In the decades that followed, international conservation law scholars who pondered the failure of international law to intervene successfully in nature conservation emphasized the need to break away from the imperial pedigree of these terminologies and the lack of clarity that allowed those terminologies to flourish. These scholars argued that Africa must move towards a collective approach, which if properly conceptualized reflects the original Pan-African indigenous, communitarian ethos that inspired the 1968 African Convention.Footnote ⁶⁹

Thus, the 1968 African Convention was revitalized by significant developments as part of the decolonization process. Remarkably, the adoption of the African Charter in 1981 played a vital role by urging a shift in how nature conservation is undertaken as a continental objective.Footnote ⁷⁰ One legal scholar reinforced this point by noting that “[o]f significance to the efforts made by the OAU in the protection of the environment was the contentious shift in approach from the regulatory nature of the other environmental treaties, to a rights-based approach with the inclusion of the right to a satisfactory environment in the African Charter on Human and Peoples’ Rights (African Charter) in 1986”.Footnote ⁷¹ With the entry into force of the African Charter and its influence over the Pan-African conception of environmental jurisprudence, it was imperative that the 1968 African Convention should be instilled with the language of rights within the context of a continent-wide nature conservation agenda.Footnote ⁷² This development was the catalyst for the revision of the 1968 African Convention in 2003.Footnote ⁷³ On this subject, Kotzé and du Plessis conclude that “[t]he Revised African Convention on the Conservation of Nature and Natural Resources of 2003, which acts as an environmental framework convention for AU Member States, also explicitly recognizes the centrality of a rights-based approach to the achievement of the Convention’s objectives”.Footnote ⁷⁴

The embedding of rights language in nature protection and conservation is present across multiple sections of the 2003 Revised African Convention. For example, article XVI outlines procedural rights including environmental democracy and participation rights.Footnote ⁷⁵ It also includes references to traditional and indigenous knowledge and rights which elicit customary environmental consciousness.Footnote ⁷⁶ While these changes significantly advanced mainstreaming nature conservation into human rights and sustainable development as provided for in the African Charter and the 2003 Revised African Convention, there has been little attempt to translate the normative content of sacred natural sites into national laws across Africa.Footnote ⁷⁷

In this respect, the colonial legal constructions of nature which began with both the 1900 London Convention and its 1933 iteration were never fully displaced by postcolonial developments. Rather, these colonial influences continued under the 1968 African Convention and its restatement in the 2003 Revised African Convention. For example, article XII of the 2003 Revised African Convention reaffirmed the importance of conservation areas and the establishment of nature reserves and parks as enunciated in these imperial treaties.Footnote ⁷⁸ This confirmation of the colonial heritage of nature conservation as enunciated through the creation of new nature reserves in Africa was a source of tension between the postcolonial African state and its peoples.Footnote ⁷⁹ Even more, in the case of countries like South Africa, nature reserves created during the Apartheid era exacerbated the already fractious relationship between majority black South Africans and the minority white government.Footnote ⁸⁰ This development dispossessed African peoples of their lands and outlawed indigenous land use practices.Footnote ⁸¹ Regrettably, the situation remains significantly unchanged even in the post-Apartheid period since the philosophy underlying nature conservation is still defined by Eurocentric ideas.Footnote ⁸²

The Western ideas foisted upon Africa through the creation of nature reserves and parks did not respect nor take seriously customary legal principles on nature conservation including sacred groves and other culturally and spiritually significant natural sites. Since these Eurocentric conservation ideologies introduced into Africa were based on Anglo-German conceptions of capture and control, the nature reserves and parks did not always align with African cosmologies on nature conservation.Footnote ⁸³ The continuation of these ideologies by newly independent African states was equally unhelpful, as it did not represent the collective postcolonial aspirations of African peoples who were now alienated by their own postcolonial governments.Footnote ⁸⁴ This new challenge is observed through recent developments in Africa where, for example, the Endorois and Ogiek communities brought cases against the government of Kenya relating to the cultural significance of their ancestral lands.Footnote ⁸⁵ Thus, the continuous reliance on these pedigrees of nature conservation in Africa’s environmental jurisprudence risks re-inscribing the underlying normative deficiencies of these Eurocentric ideas that created the problem in the first place.

The contested politics and law on rights and nature conservation

The relationship between law and nature in the context of the work of the African Commission invites a closer examination regarding how it can deliver a better approach to nature conservation. Here, it is important to delve into the role of the African Commission relating to nature protection, and subsequently sacred natural sites. To begin, the African Charter established the African Commission “to promote human and peoples’ rights and ensure their protection in Africa”.Footnote ⁸⁶ The African Commission’s tripartite mandate under the African Charter is:

The African Commission’s three-fold mandate directs it to promote, protect and interpret human and peoples’ rights under the African Charter. The performance of these duties requires that the African Commission passes resolutions that take the form of “recommendations to [g]overnments”.Footnote ⁸⁸ These resolutions adopted by the African Commission are, in the strict sense, not binding on state parties.Footnote ⁸⁹ Additionally, this three-way mandate restricts the African Commission from enforcing compliance with its recommendations backed by the threat of sanctions.Footnote ⁹⁰ While these recommendations by the African Commission are considered nonbinding, they provide important points of reference for state parties in their lawmaking processes and observance of human rights at both domestic and continental levels.Footnote ⁹¹

Despite this implementation gap, the African Commission frequently adopts resolutions in advancing its mandate. It is in this respect that the African Commission adopted the SNST Resolution in 2017.Footnote ⁹² However, even before it adopted the SNST Resolution, the African Commission has typically assumed a significant role in continental environmental jurisprudence.Footnote ⁹³ Its participation in nature protection was defined by the incorporation of the language of rights in African regional environmental and human rights law, starting with Social and Economic Rights Action Centre and Centre for Economic and Social Rights v Federal Republic of Nigeria (Ogoni).Footnote ⁹⁴ In Ogoni, the African Commission affirmed the right of the indigenous Ogoni people to enjoy a healthy environment following widespread environmental destruction caused through oil pollution in the Niger delta in Nigeria.Footnote ⁹⁵

Subsequently, the African Commission expanded its environmental jurisprudence beyond Ogoni. The enlarged jurisprudence of the African Commission in its interpretation of the African Charter demonstrates its reverence and respect for indigenous rights and claims to ancestral lands.Footnote ⁹⁶ This approach was the crux of Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of the Endorois Welfare Council) v Kenya (Endorois) where the applicants brought a communication before the African Commission alleging that their forced removal by the government of Kenya and the “creation of the Lake Hannington Game Reserve in 1973, and a subsequent re-gazetting of the Lake Bogoria Game Reserve in 1978 by the [g]overnment of Kenya” was a violation of their property rights and a disruption of their relationship with their ancestral lands.Footnote ⁹⁷ Through the exercise of its quasi-judicial mandate, the African Commission invoked nature conservation in its interpretive analysis where it cautioned that an analysis and implementation of the right to development under article 22 of the African Charter must contemplate culture-based nature conservation practices that are evocative of sacred natural sites, religious and ancestral practices.Footnote ⁹⁸

The African Commission also noted in its decision that the government of Kenya had violated the African Charter relative to the indigenous communities by failing to consider the sacred relationship between the Endorois people and their lands. The Commission recommended that these violations be remedied through the recognition of “the rights of ownership to the Endorois” people and restoring the Endorois people to their “ancestral lands”.Footnote ⁹⁹ The African Commission also recommended that the government of Kenya must guarantee “that the Endorois community has unrestricted access to Lake Bogoria and surrounding sites for religious and cultural rites and for grazing their cattle”.Footnote ¹⁰⁰ The Commission’s conclusion in Endorois is significant as it affirms environmental rights. However, this conclusion is also important in its emphasis on the recognition and reverence of the cultural, religious and spiritual integration of the ancestral lands as a sacred natural site for the Endorois people.Footnote ¹⁰¹

Importantly, the African Commission’s recommendations in Endorois are significant for understanding the contested politics embedded in the inherited colonial legacies of nature parks and reserves and the role law plays in this question. As this case demonstrates, the creation of nature parks and reserves even by the postcolonial African state is often without recourse to the traditional, sacred and ancestral connections of the indigenous communities who have long lived on the land or use sacralized waters before the advent of colonialism.Footnote ¹⁰² As was demonstrated in Endorois, the government of Kenya continued the old, imperialist legacy of nature parks and reserves as handed down through British colonialism. This example epitomizes the failure of the postcolonial African state to redress the fundamentally destructive processes embedded in mandating these so-called protected areas created and maintained through Eurocentric law.Footnote ¹⁰³

African states, even in the postcolonial period, continued to use colonial legal techniques like the creation of nature parks and reserves to dispossess, dislodge and override time-honoured African cultural, spiritual and religious linkages to land and water disguised as nature conservation. In this sense, domestic efforts aimed at compliance in the postcolonial context were simply attempts to meet “straitjacket international conservation obligations” without significant input from African peoples and long-established values from their indigenous knowledge systems.Footnote ¹⁰⁴ This point echoes the view that the overarching purpose of the interaction between law and nature was for law to civilize nature. As Gissibl, Höhler and Kupper have argued, “[n]o matter for what purpose wild nature came to be protected, its enclosure was employed not to exclude nature from civilization but rather to incorporate certain forms of valued nature into schemes of national or imperial development”.Footnote ¹⁰⁵ Construed this way, the creation of nature parks and reserves are purposefully integrated into a state’s development agenda, which agenda is likely to override sociocultural and religious significance of sacred natural sites within the artificiality of these nature parks and reserves. This civilizing technique employed by colonial powers later became a convenient tool for postcolonial states to continue the extension of state power over both nature and indigenous peoples.

As the African Commission concluded, the government of Kenya attempted to re-characterize ancestral lands in question as trust lands under its Trust Land Act. This singular act was intended to dislodge the Endorois people as customary landowners, and effectively re-constitute these indigenous peoples as merely beneficiaries of trust lands, while endowing the state as trustee of these lands.Footnote ¹⁰⁶ The Commission noted in its decision in Endorois that the government of Kenya’s grant of “mere access” to the Endorois people was insufficient.Footnote ¹⁰⁷ These ancestral lands, as sacred natural sites, held cultural and religious significance and occasional access granted the Endorois people by the state interfered with the customary enjoyment of the cultural rights of the people. The Mau Forest, which was at the centre of this dispute, was a sacred natural site for the Endorois people, a point that was later affirmed by the African Court of Human and Peoples’ Rights in another case brought against the government of Kenya.Footnote ¹⁰⁸ In a review of its decision in Endorois, Nasirumbi notes that “[a]fter assessing the reasons given by the government to evict the community, and the meagre compensation given to them, the [African] Commission concluded that there was severe encroachment of their land, which was neither proportionate to any public need nor in accordance with national and international law”.Footnote ¹⁰⁹ Accordingly, these developments, whether in the colonial or postcolonial era, are unjustifiable so far as they disrupt indigenous relationality with sacred natural sites.

The SNST Resolution

The colonial influence on nature conservation and its vestigial influences continued into Africa’s postcolonial existence. These colonial laws persisted within the interaction between law and nature in Africa, and any attempt at improving the situation was welcome. It is in this respect that the SNST Resolution adopted by the African Commission in 2017 was heralded as an important addition, and perhaps a significant clarification, to law-nature interrelations in Africa. This addition to the continental legal framework on environmental consciousness is a notable endeavour that could change the course of nature conservation that began under the earlier 1900 and 1933 imperial treaties and continued with the adoption of the 1968 African Convention and its revision in 2003. Thus, the adoption of the SNST Resolution as a further attempt at nature conservation must be examined for both its normative content and decolonization ethos.

The adoption of the SNST Resolution by the African Commission was supposedly welcome news considering the challenges confronting nature conservation, in both colonial and postcolonial times. This resolution underscored the importance of the protection of sacred natural sites by connecting their relevance to indigenous cosmologies.Footnote ¹¹⁰ It emphasized the African Commission’s interest in indigenous rights protection as intrinsic to the broader framework of human rights protection in Africa. This point is evident in the Commission’s work, as it has previously demonstrated this link through its decisions and recommendations analysing environmental protection and development as integral to the cultural rights of Africans, especially indigenous peoples.Footnote ¹¹¹

The SNST Resolution also acknowledged the efforts made by some African states like Benin and Ethiopia to protect sacred natural sites ahead of the adoption of the Resolution. These developments emerged in the past decade where African states including Benin and Ethiopia undertook a renewal of their indigenous laws in the service of the conservation and protection of sacred spaces.Footnote ¹¹² Since the adoption of the SNST Resolution, other African states like Uganda have passed laws to incorporate rights of nature as a domestic commitment.Footnote ¹¹³ Importantly, subnational or local authorities have moved forward with specific laws on sacred natural sites. Notably, the Buliisa district local government council in Uganda adopted a resolution and subsequently enacted an ordinance respectively to protect sacred natural sites.Footnote ¹¹⁴ This recognition of Bagungu customary law on sacred natural sites at the district level increases its visibility and legal efficacy as a source of law.Footnote ¹¹⁵ In this respect, the transformative capacity of the SNST Resolution could galvanize greater interest in sacred natural sites as a source of legal normativity in Africa and beyond.

The SNST Resolution’s relevance goes beyond Africa. It invokes a broader transnational sentiment on the protection of sacred natural sites as it joins its significance to similar global developments.Footnote ¹¹⁶ A look at the Canadian experience shows indigenous peoples have consistently faced difficulties in asserting their rights to access sacred natural sites since such claims are subjected to Eurocentric standards of proof inherent in the Canadian settler-colonial legal system.Footnote ¹¹⁷ On this subject, some Canadian legal scholars argue, “the lack of legal protection for [i]ndigenous sacred sites is an impediment to the full restoration of Indigenous spiritual traditions in Canada”.Footnote ¹¹⁸ Similarly, the Sámi indigenous people across the Scandinavia are also revitalizing their relationship with their sacred natural sites after long periods of Eurocentric Christo-legal influence.Footnote ¹¹⁹ Latin America also presents comparable developments on the ecological and legal value of sacred natural sites.Footnote ¹²⁰ Altogether, there is an attempt to mainstream customary laws of indigenous peoples and sacred natural sites as valuable sources of legal normativity for renewing environmentalism. In this respect, the SNST Resolution aligns with a growing transnational consciousness on the intrinsic legal value of sacred natural sites and similar spaces like sacralized waters as lawgivers.Footnote ¹²¹ Their resurgence suggests that sacred places did not cease to have religious or spiritual relevance due to supposed claims of modernity. For example, in the Kenyan context, the African Commission rejected the government of Kenya’s attempt to justify its forced removal of the Endorois people from their ancestral lands. As Petersmann points out, for indigenous societies like the Endorois people with connection to sacred grounds, “culture and religion are intertwined and cannot be separated”.Footnote ¹²²

Despite these significant contributions made by the African Commission through the SNST Resolution as a reboot of the postcolonial impetus for nature conservation, the basis of the resolution remains defective. In this rather short resolution, the African Commission relied on the IUCN’s characterization of sacred natural sites which it “defined as ‘areas of land or water having special spiritual significance to peoples and communities’ (IUCN, 2008) and often harbouring rich biodiversity contributing to connectivity, resilience and adaptability of valuable landscapes and ecosystems”.Footnote ¹²³ Scholarly commentaries point to the fact that the IUCN popularized “the phrases ‘cultural and spiritual values’ and ‘cultural and spiritual significance of nature’” in the broader literature on nature conservation.Footnote ¹²⁴ So, the inclusion of these words do not necessarily signify a commitment to their underlying values. In fact, the complicity of international environmental organizations like the IUCN in the destruction of indigenous conservation system is blurred by a reliance on buzzwords and terminologies that do not carry forward the intentions and aspirations of affected communities whose dispossession was, in the first place, made possible by the pioneering influence of these organizations.Footnote ¹²⁵

The IUCN has been at the forefront leading significant reforms on the protection of sites and species, a process that dates back to the post-Second World War period. Today, it comprises a wider global membership with participation from postcolonial states. However, its Anglo-German heritage remains noticeable, even today.Footnote ¹²⁶ A case in point is the conclusion and adoption of the World Heritage Convention where the IUCN actively sought to lead the identification and designation of natural sites as world heritage sites.Footnote ¹²⁷ The IUCN plays an important role in this process by developing the identification and evaluative tools for this determination.Footnote ¹²⁸ While this is supposedly an important step, the misidentification of sacred natural sites can result in their exclusion.Footnote ¹²⁹ In this respect, the IUCN’s disciplining gaze over these processes and developments evokes a colonial past.

Thus, it is difficult to discount the IUCN’s control over global nature conservation efforts. As Macekura points out, “the IUCN’s early officials had cut their teeth working in imperial game reserves or nature protection schemes”.Footnote ¹³⁰ Knox echoes these concerns by arguing that, through the work of leading international conservation organizations like the IUCN in the creation of nature conservation spaces, these organizations have been valorized for their nature heritage value while violating the rights of indigenous communities.Footnote ¹³¹ As he points out in his review of the role of the IUCN globally in the nature conservation regime, Knox contends that the IUCN was actively involved in the drafting of the 1968 African Convention, “which continued the exclusionary definitions of nature reserves and national parks”.Footnote ¹³² Furthermore, the IUCN’s commitment to fortress conservation, which it exported across the world, appealed to African states as it often came with financial incentives.Footnote ¹³³ This Eurocentric contrivance prevents Africa and its peoples from assuming the necessary agency to formulate Africa-specific norms based on the traditional and customary signification of their spiritual and religious connections to nature.

In this regard, the SNST Resolution’s overreliance on a non-Africa specific definition of sacred natural sites, one that is popularized by Western-influenced conservation organizations like the IUCN, poses challenges to this renewed African effort directed towards nature conservation through sacred natural sites. Owing to the IUCN’s Eurocentric heritage, it was surprising that the African Commission premised the epoch-defining SNST Resolution on the IUCN’s definition of sacred natural sites. While some scholars approach the IUCN’s work with a sanguine outlook, one cannot gloss over its intimate connection to the Anglo-German nature conservation legacy that culminated in the IUCN’s establishment and ensuing global mission.Footnote ¹³⁴ This approach raises concerns over whether the African Commission attached great importance to the SNST Resolution. It would seem the African Commission and, perhaps, other relevant African regional institutions appear to have quickly forgotten the role that certain Western-dominated institutions like the IUCN played in Africa’s ecological despoliation through experimenting with different approaches to nature conservation, that evidently produced mixed results.Footnote ¹³⁵ For example, it is a well-established fact that African states did not play an active role in the founding of the IUCN and its earlier programmes for nature conservation.Footnote ¹³⁶ Notably, one of the earlier pilot projects of the IUCN’s Environmental Law Programme was its involvement in the drafting of the 1968 African Convention, which regrettably continued foundational aspects of the legacy of the Anglo-German heritage of conservation policies in the 1933 London Convention, including marginalizing indigenous peoples.Footnote ¹³⁷

These critical assessments of the colonial and patrimonial guidance of the IUCN are not out-of-place. For example, Macekura once again notes that the postcolonial era was an important period for the IUCN since “[f]und-raising success and decolonization led the IUCN and [similar nature conservation organizations like the] WWF to focus their attention on the continent in unprecedented ways”.Footnote ¹³⁸ In this sense, the IUCN’s formulation of principles on nature conservation must be examined under the lens of its neo-imperial heritage and related attempts to reinvent its usefulness to postcolonial African states. Other scholars like MacDonald raised similar concerns over the neoliberal tendencies of the IUCN to urge “the conservation movement to seek out and work with ‘new types of partners’, – [which was a] code for deepening interconnections with the private sector”.Footnote ¹³⁹ MacDonald provides further evidence, which demonstrates the neoliberal strategies of the IUCN to promote “nature protection” as integral to techniques of dominance disguised as economic development.Footnote ¹⁴⁰ Other legal scholars have also cautioned against the IUCN’s paternalistic attitude towards standard-setting, characterization and designation of nature or sacred natural sites, often based on Eurocentric prescriptions, further dividing nature and culture.Footnote ¹⁴¹

The IUCN’s checkered heritage calls for greater scrutiny in the deployment of its language in a worthy effort to protect nature.Footnote ¹⁴² From both old and more recent accounts, a sanguine adoption of IUCN language should be a source of concern to the African Commission since the IUCN plays a leading role in environmental treaty-making processes.Footnote ¹⁴³ As Knox advances in his recent critique of the international conservation industry, organizations such as the IUCN play an important role in evangelizing the mission of Western-led efforts regarding nature conservation, including using language that neither advances the interest of affected communities nor of nature itself.Footnote ¹⁴⁴ This observation once more foregrounds the hazards of overlooking international law’s past as it continues to shape the course of present and future ideas and their subsequent implementation.Footnote ¹⁴⁵ This observation also paints a portrait that is inconsistent with the African Commission’s mandate to formulate its own guidance on matters of continental interest.Footnote ¹⁴⁶ Accordingly, it would seem the SNST Resolution was a missed opportunity for the African Commission to formulate a Pan-African approach, away from its reliance on the IUCN definition as the linchpin for outlining its engagement with such an important issue for Africa’s environmental aspirations.

Nonetheless, soon after the adoption of the SNST Resolution, the African Commission adopted another resolution to conduct a study into sacred natural sites and their role in promoting customary law and culture-based conservation.Footnote ¹⁴⁷ This new Resolution 403 is based on the first mandate of the African Commission, which is “to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organize seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights, and should the case arise, give its views or make recommendations to [g]overnments”.Footnote ¹⁴⁸ Additionally, Resolution 403 directs the African Commission’s Working Group on Indigenous Populations / Communities, tasked with this study, to consult African sources of international law including the 1976 Cultural Charter for Africa and the 2003 Revised African Convention.Footnote ¹⁴⁹

The express reference to these Pan-African treaties alongside other international instruments in Resolution 403 is an improvement over the Commission’s initial approach with the SNST Resolution which only referenced international instruments under the auspices of the United Nations, with no reference to the 1976 Cultural Charter for Africa or the 2003 Revised African Convention, which speak explicitly to Africa and its concerns. Resolution 403 presents a valuable opportunity to build a more durable Africa-centred blueprint for the protection of sacred natural sites. In this respect, I propose a definitional approach that highlights indigenous understandings and perspectives that create a more robust framework, paying attention to the core components of ecological integrity and their intrinsic connections to society. This effort should reflect foundational ideas including a widescale study of traditional African meteorological knowledge and their connections to customary norms on environmental protection.Footnote ¹⁵⁰ Here, a growing body of scholarship is retracing indigenous knowledge systems including meteorological understandings that could play a major role in integrating indigenous perspectives in weather forecasting.Footnote ¹⁵¹ I endorse these works and their direction on the interconnectedness between indigenous climatic and atmospheric patterns as important to biodiversity law and protection including migratory patterns of animal species.Footnote ¹⁵²

Also, the opportunity to craft an Africa-facing definition can mainstream African indigenous approaches into cognate aspects of ecological integrity. For example, soil vitality is a central feature of African cosmologies and must be prominent in the legal study being undertaken by the working group established under Resolution 403. Recent interdisciplinary scholarship in Africa demonstrates the benefits of indigenous knowledge of soil governance.Footnote ¹⁵³ This exploration of indigenous knowledge and its connection to soil systems has been highlighted as central to global efforts directed at nature conservation.Footnote ¹⁵⁴ Thus, the reverence of soil as sacred is commonplace in Africa and must be contemplated in the definition and characterization of sacred spaces in the study being conducted under Resolution 403. However, my proposal is not simply to acknowledge the significance of soil systems in African environmental jurisprudence. Rather, it is an invitation to think more robustly about the reverential quality of soil within the guiding definition of sacred natural sites and their contemporary relevance to the overall project of environmental lawmaking, nature conservation and sustainability.Footnote ¹⁵⁵ In this respect, the integration of an Africa-focused definition must establish these cosmological reflections and their prominence to soil governance, as well as the connectedness of soil to all aspects of ecological integrity.Footnote ¹⁵⁶

Additionally, the study and its definitional outcome must consider other aspects of ecological integrity. For example, African legal scholars have highlighted the value of water to eco-cosmologies.Footnote ¹⁵⁷ In this respect, the 2003 Revised African Convention can play a renewed role in joining its strategic Pan-African focus to the present aim of developing an Africa-specific definition of sacred natural sites. One way to think about this renewed effort is through the integration of African indigenous legal theory and the significance of water to the definition of sacred natural sites. Since water is one of the four focal points of the 2003 Revised African Convention, it is vital to incorporate indigenous perspectives into the definition of sacred natural sites; one that connects water to land, soil and other elements of the ecological community.Footnote ¹⁵⁸ This assessment is relevant to current approaches to rethinking and reforming customary water tenure in revitalizing indigenous understandings of water rights across Africa. Additionally, it will be equally useful if such an expanded definition derives from a broader renewal and elevation of customary laws through a wider definition of water in the context of sacred natural sites.Footnote ¹⁵⁹

These indigenous knowledges are central to the cosmological constitution and designation of sacred natural sites. By devoting attention to the interconnectedness of water, land, soil and biota, and their interrelations with human society, such a definition under the framework of Resolution 372 and Resolution 403 highlights sacred natural sites and their relevance to Africa. These culturally significant spaces and their links to society are deeply embedded with legal precepts and moral values that are relevant to human interactions with nature.Footnote ¹⁶⁰ As the process of developing a common definitional framework for sacred natural sites in Africa is underway, it is imperative that the working group tasked by the African Commission under Resolution 403 recognizes that these sacred natural sites preceded the current systems of governance that Africa received as part of its colonial experience.Footnote ¹⁶¹ This is the foundation upon which this important work must proceed upon.

Ultimately, the outcome of this study is to garner support and a broader recognition of sacred natural sites as integral to Africa’s environmental consciousness, laws and governance. Without setting out what Africa wants from the SNST Resolution and allied processes, efforts directed at implementing it on a wider scale are doomed to suffer similar fate as the 1968 African Convention, which ultimately underwent significant revision in 2003. It remains a question of thoughtful guidance and how much leadership the African Commission demonstrates on the issue that will provide direction that African states can draw upon to develop an Africa-centred approach to the recognition and incorporation of sacred natural sites in their domestic legal systems. The clarification of this definitional question under the African Charter offers the African Commission an opportunity to develop its own jurisprudence around a question that has sufficient indigenous significance across the continent. On this subject, I argue that considering its Eurocentric history, the IUCN definition cannot be the standard for Africa given that there is ample room to develop a home-grown definitional framework. With the study report yet to be released, the African Commission and the working group still have an opportunity to improve on the definition and significance of sacred natural sites to nature conservation in Africa.Footnote ¹⁶² Accordingly, the solution is for the African Commission to return to its mandate under the African Charter as it has now done under Resolution 403 and conduct the needed research to design its own Pan-African approach to nature conservation via sacred natural sites.Footnote ¹⁶³