The Moroccan
Charter for the Protection of Collective and Individual Rights over Lands,
Forests and Natural Resources
Based on the
Amazigh Common Law, the new Constitution, and Convention 169 relating to Indigenous
and Tribal Peoples in Independent Countries
This is a declaration of the signatories of the
present Charter, taking part in the International Conference on Collective and
Individual Rights over Lands, Forests and Natural Resources, organised in
Agadir, Morocco, on 19 and 20 April 2014, by Tamunt n‘Iffus Confederation and
Tamaynut Organisation, and attended by representatives of Amazigh cultural and
development NGO’s.
During this conference, presentations focused on diagnosing the different
situations of the collective and individual rights over lands, forests and
natural resources in various regions of Morocco, as well as the Amazigh
customary laws, oral or written, in contrast with the laws passed during the
French Protectorate period. Mechanisms and strategies necessary for the
protection of the collective and individual rights over lands, forests and natural
resources were also discussed, including a set of recommendations, partly based
on previous meetings, attended by male and female researchers, scholars,
judges, lawyers, engineers, heads of cultural and development NGO’s,
representatives of indigenous communities, human rights activists, gathered by the
Amazigh Human Rights Committee of Tamaynut Organisation in Rabat from November
2013 through April 2014, along with the Rabat coordination of the Amazigh
cultural and development NGO’s.
Given that the 2011 Constitution was adopted to usher the
country into a state of law where collective and individual rights over lands,
forests and resources are recognised, in conformity with the developments in
the International Law, namely with the adoption of Convention 169 relating to
Indigenous and Tribal Peoples in Independent Countries, as well as the United Nations
Declaration on the Rights of Indigenous Peoples.
Considering that the government’s plan to appropriate
20 million hectares by the end of 2016 will inevitably deprive members of
indigenous communities and tribal peoples of their collective and individual
rights over land, forests and resources, supported by the local Amazigh
customary law, the Constitution and International law, is in contradiction with
the essence of the new constitution, which for the first time ever recognises
the Amazigh cultural identity and the Amazigh language as an official language.
This constitution is perceived by most Moroccans as protecting rather than
denying those rights, bearing in mind that since Independence, members of
indigenous communities have been illegally deprived of their collective and
individual rights, while influential or authority-backed individuals easily grab
thousands of hectares of land, forests and natural resources, in total
disregard for “the right and principle of prior, free and informed
consent”. Moreover, rich individuals from the Gulf Arab countries and some
local and foreign companies have readily been granted appropriation of
thousands of hectares, thus making prejudice to the dignity of the members of
indigenous communities and tribal peoples, guaranteed under the said Constitution.
Consequently, the participants agreed on a set
of recommendations to be listed hereinafter and addressed to the King, pursuant
to Article 42 of the Constitution, to the Government and other institutions of
Morocco, to the United Nations, and particularly to the United Nations Forum on
Indigenous Issues, which will be held from 12 to 23 May 2014 in New York, as
well as to the United Nations World Conference on Indigenous Peoples, scheduled
for 22-23 September 2014.
Regional, national and international background:
Most historical and legal evidence confirms that
the Amazigh peoples in Tamazgha land [1]
were among the first peoples who set laws to rule their societies organised in
the forms of communities, tribes or tribal confederations, turning at times
into mighty empires, kingdoms and principalities in ancient, medieval and modern
history. Their organisation made of them some of the fiercest defenders against
invaders. Even when central authority was in decline, communities and tribes
quickly recovered their strength thanks to their solidarity and cooperation
based on the system of collective ownership and the free election of their
representatives, named “Imgharen”, “Inflas”, “Imzwaren” or “Ait kumraw”,
depending on regions.
While some oriental and Arabised Amazigh
scholars considered the people’s resistance against “Arab expansion” as an
excuse for legitimising invasion and the expropriation of fertile lands while humiliating
resistance, Amazigh tribes all along their history have never renounced their laws, regulations
and customs, which form the basis of their system of collective and individual
ownership of land , forests and resources.
Most experts in Moroccan laws, whether Moroccans
or foreigners, argue that this system of collective ownership, based on oral
tradition, engraved in tablets, or otherwise used by the tribes and
communities, and especially their elected above-mentioned elected bodies, all prove
that Amazigh tribes and communities were management units for local and
regional governance.
That era, often trashed under the term “siba[2]”,
was in fact a time of effective self-government. “Siba” was meant to demean
the system of collective ownership and management of lands, forests and
resources through which those communities and tribes practised self-autonomy
within national unity, as part of the Moroccan/North African age-old heritage,
which enabled them to directly manage
their affairs, territories, forests and resources according to the Amazigh
written and oral laws, and on the basis of their traditions, know-how,
technology, legal systems, and economic expertise, with total respect for
national unity while opposing oppression, dictatorship and enslavement
throughout history.
In their first survey of land property in
Morocco, Colonial authorities confirmed that the indigenous communities and
tribes of Morocco had collective rights over land, forests and resources secured
by the Amazigh oral and written legal system.
However, because the Amazigh tribes were the
spearhead of resistance against both colonial invasion and oppressive central
government, French colonisation, disguised as a protectorate, focused on
undermining the inherited cultural and spiritual relationship binding the
Amazigh people to their land, forests, and resources, which constituted the
backbone of their survival, resistance and freedom in the face of central
government tyranny and imperialism. The showdown resulted in the French colonial
power abolishing the local autonomy so far enjoyed by the Amazigh tribes in
their territories within the national unity of Morocco. The Act (Dahir)
of 27 April 1919, setting
the colonial collective
property trusteeship, pays lip service to the rights of tribes and communities
over their lands, forests and resources, as well as their right to maintain
their traditional institutions.
In spite of the conflict situation, a large
corpus of pre-colonial government as well as French documents, including
colonial legislation, confirm that the Amazigh communities and tribes always had
their own written and oral laws for managing collective and individual
ownership of lands, forests and resources, and these laws continued to be in
effect not only after the French
Protectorate in 1912, but also up to the date of the Arabisation Act of 1965,
and even till the 1990’s, when the Amazigh Cultural Movement stood against a
move by the authorities to refresh the attempt to delimit state property in
accordance with measures taken by the French authorities in the framework of
their strategy to crush the fight of the Amazigh tribes, and cancelled when the
Amazigh fighters were needed to support France in the two great Wars. The
Amazigh tribes particularly resisted Marshall Lyautey’s 1922 Act relating
to the land registration plan.
More recently, while the 2011 constitution was hailed
for some of its advances, which for the first time in Moroccan history
recognises the Amazigh culture and language, the authorities have in parallel
devised an evil scheme to register as private state property 20 million
hectares, between 2012 and 2016, in total disregard for legal procedures
required in such matters, even procedures in effect before the 2011
constitution. The scheme follows the same methods used by the French colonial
authorities to crush the Amazigh tribes’ resistance between the two World Wars.
Worse even, The Moroccan national authorities are reviving the colonial
archives after the adoption of the new constitution.
It is indeed The post-2011 constitution Moroccan
government[3] that
has adopted the said land conservation scheme enabling the “ Agence
Nationale de la Conservation Foncière, du Cadastre et de la Cartographie” (National
Agency for Property Registry, Land Survey and Mapping), operating under the
government’s direct control, to conclude three secret agreements: one with the High Commissioner For water, Forests
and Desertification Control (“Le Haut Commissariat aux Eaux et Forêts
et à la Lutte Contre la Désertification”) in 2012; one with the ministry of
Interior, in March 2013; and the last one with the “The State Property
Administration” (“la Direction des Domaines de l’Etat”) in 2013. Those
agreements, which have not been made public, all aim at expropriating and
alienating the collective and individual rights of the Amazigh communities and
tribes over their lands, forests and resources, in total breach of the legal
procedures observed in property registration.
Also, since January 2013, The General Property
Registrar instructed all regional registrars, through an ordinary
administrative note, disregarding the new principles embodied in the 2011
constitution, such as The Code of Property Rights, to secretly hasten the
process of registering property files prepared during the colonial era to
expropriate lands, forests and resources. Through this procedure, the
government is discretely breaking the registration procedures of the Code of
Property Rights of tribal and community lands, forests and resources, on the
basis of files prepared before 1934, when those tribes were busy waging
resistance against colonial occupation. Clearly publicity is avoid to evade
potential protests of ordinary peasants, who considered themselves rich as long
as they enjoyed their inherited collective and individual rights over lands,
forests and resources. Unfortunately, the first government under the new
constitution, which formally guarantees all rights including the right to
property[4],
is launching a discreet process aiming to deprive those indigenous peasants of
their collective rights over the lands, forests and resources they have inherited
from their ancestors and have safeguarded for thousands of years.
Initially, the colonial legal system partially
recognised the Amazigh laws, the legal and judicial systems of the Moroccan
indigenous communities and tribes, as legitimate owners of lands, forests and natural
resources, and also recognised their right to the fifth of revenues resulting
from the private or public exploitation of the lands, forests, resources, including
the state’s collective resources, as well as mineral resources; however, the
national Moroccan state, has been waging an Arabisation campaign against the
Amazigh written and oral laws, and undertaking with zeal to abolish the Amazigh
judicial system, depriving those tribes and communities not only of their
cultural and linguistic identity, but also of any of their collective and
individual rights to property assets.
Since the early nineties of the last century, the
state has launched an aggressive campaign, particularly following the emergence
of the Amazigh Cultural Movement, in land mapping and registration already initiated
by the colonial authorities in 1920, immediately after the first World War, but
halted on the eve of the Second World War, when the colonial authorities needed
to encourage tribes to take part in the War against Hitler to free France and
the rest of Europe from Nazism.
The Protectorate administration resumed its land
grabbing policy a few years before independence and power transfer to the
modern national state, indeed liberated from French colonial rule through the resistance
of those very autonomous indigenous tribes[5].
Despite their sacrifices, the independent national state set out to destroy every
aspect of their autonomy, including all traditional political, cultural,
economic and legal institutions. Thus, the Amazigh legal and judicial systems
in place were abolished while others were maintained (the Islamic, the Jewish
and the French), and the Amazigh language was excluded from the educational
system while others were maintained (French, Arabic, Islamic, and Hebrew).
The new government and the policy of appropriation
of 20 million hectares between 2012 and 2016:
Surprisingly, with complete disregard for the
legal and human rights references enshrined in the 2011 constitution, the new government,
instead of seeking to cancel its control over communities and tribes, excluded every Amazigh, national
and international human rights standard, and adopted a policy similar to that
of the Protectorate between the two Wars. It even now uses the colonial
archives against the children of resistance tribes and communities, who freed
France from Nazism, and the Moroccan state from French occupation.
In principle, the 2011 constitution, entitles and
safeguards the individual right of property for all Moroccans. In fact, a tribe
who has been living on the Moroccan soil for thousands of years, occupying well
known lands and forests, having Amazigh laws, whether oral, or documented on
tablets and later on paper, cannot register its collective rights over lands,
forests and resources, as all its written deeds are rejected by the related
public institutions, under the pretext that Argan or cedar trees grow on the
land, in which case they are either considered woodlands or collective
property. To prepare a property registry file for such a land, applicants face
a vicious circle in that they must submit an official document, usually issued
by notaries, who would produce it only if certified by an administrative authority
(governor), who in turn will issue that document only if a certificate proves
that the land is not a woodland or a collective property.
Indigenous communities or tribes in Argan or
cedar areas are deprived of their right to register their collective property.
Under this oppressive policy, an area with just one Argan or cedar tree is
considered woodland, which is totally inconsistent with the new constitution,
the Amazigh written and oral laws, as well as the international standards of
collective and individual human rights.
Furthermore, no individual belonging to any
indigenous group has the right to register his land exploitation rights under customary
Amazigh law, colonial or national laws. On the other hand, any potentate could easily
possess thousands of hectares belonging to the indigenous Amazigh communities
and tribes dealing directly with the High Authority for Water and woodland
Resources, before the 2011 constitution. Such practices are now even easier with
the new Constitution.
Thus, people in or linked to government circles
and Gulf princes have grabbed thousands of hectares of collective lands,
forests and resources belonging to the Amazigh indigenous tribes and
communities to the detriment of the members of communities and tribes, who are
deprived of their rights in blatant disregard for “the right and principle
of prior, free and informed consent”, as stipulated in the
Moroccan civil law. In some cases so-called investors establish so-called
natural conservation projects without the consent of the local communities and
tribes, only to build private palaces with airfields among other amenities,
surrounded with enclosures and barbed hedges.
Now, despite the symbolic recognition in the
2011 constitution of the Amazigh cultural dimension in the Moroccan identity
and of Amazigh as an official language, the government plan to register 20
million hectares between 2012 and 2016 would will result in total destruction of
the relationship between the Amazigh culture and the land, as well as the
spiritual bond joining together the Amazigh indigenous communities and tribes
with their lands. This symbiotic bond has throughout history mobilised them to
defend their freedom and autonomy against the tyranny of the colonial hegemony,
today in the form of foreign corporations and Gulf capital, or Moroccan family holdings
linked to the ruling class.
To stand against this destructive scheme and wild
offensive under the cloak of 2011 so-called “Constitution of Rights”, the
Amazigh cultural and development NGO’s as well as all associations and
organisations concerned with human rights, which have signed, joined or
supported the present Charter declare their alliance, and join efforts to use
every legal and legitimate means, at all levels, local, provincial, national,
regional and international, to protect and defend their collective rights over
their lands, forests and resources. They will take any actions and measures in
every field, working with all partners to claim back and safeguard the
collective rights of communities and tribes, partially or totally denied by
public or private entities or institutions, in disregard for “the right and principle
of prior, free and informed consent”.
Prompted by the consistent desire and fervent hope
for a democratic interpretation of the spirit of the 2011 constitution, and
with reference to the constitutionally recognised Amazigh legal systems,
especially the collective property regime, and under the international standards
of the individual and collective human rights, namely the United Nations
Declaration on the Rights of Indigenous Peoples, the Convention 169 relating to
Indigenous and Tribal Peoples in Independent Countries,
We set out the following recommendations addressed
to the Moroccan constitutional institutions and the United Nations, which is
holding the UN World Conference on Indigenous Peoples between 22 and 23
September 2014:
1-Recommendations
addressed to the King, as the ultimate constitutional institution in Morocco,
according to article 42 of the Constitution:
- To set up a panel of experts, ranking as high
as the commission that drafted the 2011 constitution, to prepare an organic law
in order to implement the constitutional recognition of the Amazigh language
and culture (Article 4 of the constitution) as well as the Amazigh laws
relating to the collective and individual ownership of lands, forests and
resources.
- Activate article 42 of the 2011 constitution
to protect the collective and individual rights over lands, forests and
resources and repeal any legislation which runs counter to those
rights.
- Ratify Convention 169 relating to Indigenous
and Tribal Peoples in Independent Countries.
- Establish an Institute for Amazigh Legal Studies.
- Revise the report on Advanced Regionalisation,
which has not taken into account the Amazigh laws relating to autonomy in
indigenous and tribal territories in Morocco.
II-
Recommendations addressed to the government and other public institutions:
- To adhere to the national
standards of human rights pursuant to the new constitution, which ensures the
collective rights over lands, forests and resources, following the democratic
interpretation of the constitution and its recognition Morocco’s Amazigh identity
and culture, which includes the Amazigh written and customary oral laws, as
well as the traditional forms of knowledge, which regulate collective property,
in consistence with the international standards of human rights. Morocco took
part in the adoption of the Convention 169 relating to Indigenous and Tribal
Peoples in Independent Countries during the International Labour Conference
held in Geneva in 1989. Morocco also adopted the Universal Declaration on the
Rights of Indigenous Peoples of the 2007 UN General Assembly in New York.
- Adopt and implement the entire recommendations
of all the sessions of the United Nations Permanent Forum on Indigenous Issues
attended by both the Ambassador of the Kingdom of Morocco and representatives
of the Amazigh cultural associations.
- Respect “the right and principle
of prior, free and informed consent” which is a right guaranteed for individuals
by civil law, and for indigenous peoples and tribal communities by
international conventions and declarations, such as Convention 169 relating to Indigenous
and Tribal Peoples in Independent Countries as well as the Universal
Declaration on the Rights of Indigenous Peoples.
- Adopt a participatory approach
involving all parties, provided that constitutional institutions carry out the
following actions:
1- Consider all property registry
and administrative delimitation operations conducted by colonial authorities as
an illegal expropriation and a denial of property rights.
2- Cancel the ongoing property
registry and administrative delimitation operations and review previous ones.
3- Lift government tutelage on all
tribal and clan communities, and enforce their customary laws in consistence
with principles of human rights and democracy, without any gender
discrimination.
4- Return the lands, forests and resources to
the communities, individuals and tribes who used to own or exploit them, before
being expropriated during the Protectorate or independence eras, in disregard
for the principle of the prior, free and informed consent of the owners.
5- Compensate justly and fairly the
victims.
6- Subject the accounts of tribal
and clan communities to the competent financial courts audits.
7-Set up a parliamentary commission
to investigate the details of the financial resources run by the ministry of
the interior, and publicise in all transparency, the sources of its funds and expenditures.
8- Create special departments at law
faculties for the Amazigh legal system and its written and oral laws.
9- Integrate the Amazigh law and the
history of Amazigh legislation into the curricula of the National Institute for
Judiciary Training.
10- Set up regional centres (In
collaboration with the land-owning communities and tribes and with the
participation of their cultural, development, youth and women’s organisations,
without discrimination) for training in Amazigh laws and traditional legal
systems (such as Tiwizi, Agudal, Tanast, elections), to promote development and
sustainable exploitation of lands, forests and resources.
11- Provide regional funds to
finance sustainable development for the indigenous communities and tribes while
respecting collective and individual rights over lands, forests and resources.
III- Recommendations addressed to
the United Nations:
Twenty years after the participation
of a delegation of the Amazigh movement for the first time in the World
Conference on Human Rights in Vienna in 1993, where a seminar was organised on
the linguistic and cultural rights in North Africa, with the distribution of
the memorandum of the Amazigh cultural associations in Morocco, while
collecting support signatures for the “Agadir Charter” during the March of the
One thousand Cultures on the banks of the Danube in Vienna;
Recalling that the Vienna
Declaration and the action plan arising from the World Conference on Human
Rights are being implemented through the nomination of the special rapporteur
in 2000 to monitor violations of the rights of indigenous peoples, setting up the
United Nations Permanent Forum on
Indigenous Issues
in 2001, the formation of the working group for drafting the final declaration
with the participation of representatives of indigenous peoples’ associations
(including the representative of the Amazigh cultural movement in North
Africa),
And finally, through the final
adoption of the UN declaration on the rights of indigenous peoples by the
General Assembly of the UN on 13 September 2007;
In view of the UN’s decision to hold
its World Conference on Indigenous Peoples in New York on 22-23 September 2014,
to sustain progress and activate the Declaration’s recommendations, and in particular
to urge governments to implement the Declaration’s recommendations;
Looking forward to the United
Nations Forum scheduled from 12 to 13 May 2014, which will be attended by the
Amazigh associations and organizations from different regions of Tamazgha[6]
and by all the governments of North Africa, to debate the main topic of
“Democratic governance” in every filed, including governance in the field of “the
collective rights in culture, lands, forests and resources”;
Further looking forward to
participate in the World Conference on Indigenous Peoples with an Amazigh
delegation in both events to affirm that Morocco and the world are in dire need
for peaceful life, that can only be cherished through the preservation of the
sacred relationship between human beings and their land and the adoption of
democratic constitutions that endorse the principle of sharing values, wealth,
resources and power.
Aware that this can only be achieved
through democratic systems of government based on true regionalisation,
enabling people to directly take part in running public affairs at the local,
national, regional and international levels, endorsing equality between men and
women, and between peoples and nations, big or small, without any discrimination against indigenous
peoples,
Therefore the hereunder signatory
associations recommend the United Nations institutions to take the following
actions:
1- Adopt an
international policy to provide financial, technical and training assistance to
the organisations of indigenous peoples, and to their elected bodies, in
conformity with their laws and principles of democracy, in order to implement
the provisions of the United Nations Declaration on the Rights of Indigenous
Peoples.
2- Urge all
countries and governments which have failed to recognise the existence, the
identities, the languages of the indigenous peoples and their rights over
lands, resources and forests and all their collective rights as proclaimed in
the Declaration on the Rights of Indigenous Peoples, to carry out
constitutional reforms leading to democratic transition.
3- Endorse the
recommendations of the World Summit on Indigenous Peoples, which aim to
democratically implement the provisions of the Declaration on the Rights of
Indigenous Peoples.
4- Declare a worldwide
third decade for the implementation of the provisions of the Declaration on the
Rights of Indigenous Peoples relating to the collective rights over lands,
forests and resources, and the other collective rights, and push towards including
these provisions in national constitutions all over the world.
(The present Charter shall be, after
completion of the list of signatures, addressed to the Royal Cabinet, the
premiership, parliament and the other institutions. It shall be published by every
possible means and translated to be addressed to the United Nations and to its
different bodies.)
[1] Tamazgha: is the Berber name for North Africa, the
homeland of the Amazigh people, that stretches from the Canary Islands in the
Atlantic Ocean to Siwa Oasis in Egypt and from the Mediterranean to the north
to the Sahara in the south.
[2] “Blad Siba” literally
anarchy territory, were autonomous Amazigh territories out of reach of the
Sultan’s control. In official history documents, the term is pejoratively used
to refer to anarchy and the absence of law, which is not true as it is a form
of autonomy by which tribes run their internal, economic, political and
military affairs.
[3] The Government headed by
Abdel-Ilah Benkirane installed on 3 January 2012.
[4] Article 35 of 2011 constitution: “The right to property is guaranteed. The
law can limit the extent and the exercise of it if the exigencies of economic
and social development of the country necessitate it. Expropriation may only
proceed in the cases and the forms provided by the law.”
[5] The Amazigh territories, which are
outside the control of the central government, autonomously run their internal,
economic, social, political and military affairs. ( See n° 2 above).
[6] Tamazgha: is the Berber name for North Africa, the
homeland of the Amazigh people, that stretches from the Canary Islands in the Atlantic Ocean
to Siwa Oasis in Egypt and from the Mediterranean to the north to the Great Sahara to the south.
