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Reactions to the ‘land grabs’ article posted on the 26 July 2012 [Chofor Che, 28 July 2012]

28 Jul

On the 26 July 2012, i posted an article by CNN on land grabs in Africa. Here are some interesting responses to this article from friends on the social network Linkedin.

Rebecca Browning • Interesting – and its usually the marginalised whose land gets grabbed. Interesting to note is the Endorois recommendation at the African Commission, where an indigenous communities got their land back after it being taken as a nature reserve, and later ruby mining concessions tried to move in. I wrote a little about it here:
http://www.kenyalaw.org/klr/index.php?id=979
Worrying that now there is a second scramble, I saw the Chinese in Zim and Namibia building large infrastructure projects, never too sure who was benefiting out of the scheme the most?

Chofor Che Christian-A • Disturbing indeed. The issue is that, native people are less informed about approaching the African Commission. Besides, the African Commission usually banks on exhaustion of local remedies before giving an ear to claims of human rights abuses, including land rights related abuses. Exhaustion of local remedies means approaching the courts of the very governments responsible for these human rights abuses. A tricky and disturbing conundrum indeed.

Barbara Harrell-bond • It is not just marginalised land. In Tanzania there is a plot to take the acreage that the Burundian refugees have been cultivating for 40 years. They were to get citizenship; now the rule is that each refugee family will have to disperse to another part of Tanzania to get the Certificate of citizenship in a thinly veiled guise to get them off the land, or repatriate to Burundi. If anyone is interested I can refer you to various papers on the subject off line.

Rebecca Browning • All very disturbing yes, and there is very little one can do about it. The African Court is not a viable solution if your state hasn’t signed the individual complaints protocol – and can they order substantive relief, what remedies can they order? Just declarative ones? Barbara I would be interested in some articles. Although I am out of the field now, I would like to get back into it. The balance between development and the land rights of inhabitants is a tough question.

Silvia Luchiri
This is one major issue that should be presently addressed as it has the impetus of a ticking time bomb in the long run. I will draw your attention to certain international laws that have a direct relation to this subject matter.

The United Declaration on Human Rights (UDHR) Articles 3 Right to life, liberty and security of a person, Article 17 on the right to property, Article 25 on the right to a decent standard of living and Article 27 on the right to cultural life. All this rights have strong or loose connections to the right to land. The rights within the UDHR could be interpreted as somewhat vague but they provided the basis of the development of the human rights law.

The International Covenant on Civil and Political Rights went further in defining its Article 1 on the right to self-determination. Sub-section 1 provides that “All peoples have the right to self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. Sub-section 2 further states that “All peoples may, for their own ends freely dispose of their natural wealth and resources without the prejudice to any obligations arising out of international economic co-operation based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence. You have got to be a bit creative in interpreting the exact parameters of this right as it is subject to controversy though land is a significant matter and to be taken seriously.

The International Covenant on Economic, Social and Cultural Rights basically covers the same subject matter that is on Article 1 on the right to self determination. Article 11 is the one that we could focus on as it deals with the right to an adequate standard of living that includes adequate food, clothing and housing. Article 11 (2) provides us with provisions on the right of individuals to freedom from hunger, an issue that is at the nexus on the land matter.

Article 11 (2) elucidated by the Committee goes as follows; “The right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect existing access to adequate food requires State parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individual do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate) means the State must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or a group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly…”)

Moving on to the African Charter on Human and Peoples Rights, our continent’s authoritative document on human rights, the rights could not have been clearer. Articles 14 deals with the right to property where it suggests that this right shall be guaranteed and may only be restricted in the interest of public need or in the general interest of the community. In as much as it mentions that the expropriation of property would have to be in accordance with the provisions of the law, it does not elaborate the grounds for expropriation or provide us with examples. A well reasoned argument that touches on this issue should prevail but that should not be an issue for land related disputes.

Article 21 provides the following: (1) All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. (2) In the case of spoliation the dispossessed people shall have the right to lawful recovery of its property as will as to an adequate compensation. (3)The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting economic cooperation based on mutual respect, equitable exchange and the principles of international law. (4) State parties to the present Charter shall undertake to eliminate all forms of economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their natural resources.

The aforementioned legal frameworks exist to deal with matters such as this. I am also familiar with the fact that majority of the African population are clueless on such affairs and they are not at fault for not possessing this knowledge. Some of us however have been privileged to understand and interpret the legal language. The excuse has always been that these laws are unenforceable in national laws due to the weak nature of the implementing mechanisms of international law; lack of will from our political leaders…the list could be endless.

I reckon that food wars are next on the international agenda. Africa is blessed with plenty arable land that should make us self sufficient in food production in an ideal environment. This ideal is achievable. The issue of land has never been adequately addressed and once in a while pockets of unrest unfold even in the more stable nations due to failure to address the land issue. Why the politicians are selling virgin/fertile lands to companies from Asia and the Middle East questions their competence whether they are actually running the country in the interests of the people. I have high lighted several provisions on international documents that they should be aware of and take in consideration when negotiating these deals with the aforementioned companies. Could it be like the majority of Africans that they are clueless of such legal frameworks? Their blatant disregard of important affairs such as these is not to be tolerated further.

The onus therefore is on educating and sensitizing our people on such matters to enable them to know that they have a redress, an option that they could undertake to challenge their political and legal establishment to enforce their rights. If the politicians do not have the will to address these issues, the African people could take action by starting to question the status quo and participate actively in this dialogue.

Chofor Che Christian-A • Spot on. Educating and sensitising our people is the way to go. But my problem is, with some awareness, how will our people challenge governments before local courts, not to talk about regional institutions like the African Commission and Court?

Sylvia Luchiri • Well, our people are unlikely to challenge their governments without being equipped with the appropriate knowledge. A cultural renaissance is a sort of pre-requisite to enable regional institutions such as the African Commission and Court to take action. When that time comes (mass intellect) this Institutions would have to conform or become redundant. The work my friend is education and sensitisation at a level that we have not seen so far.

Our governments so far have not been put in a position where they are accountable for their actions. Who can blame them? They have not been challenged so far and the status quo prevails. A profound shift in attitude would aid in this cause.

Chofor Che Christian-A • Thanks so much Sylvia for the enlightenment. We still have a lot of work to do, with regards this land issue. The time is now before it gets out of hand.

Barbara Harrell-bond • The quickest way to get everything in print and reports is to write “Lucy Hovil” <lucy@hovil.co.uk>, who is in South Africa and in touch with the US think tank, whose name I can’t remember, for papers and other things including an excellent video that shows the valuable land. She will be pleased that someone from ABA is interested because it is so hard to get anyone involved. There is a lot about Land Grabs in Pambazuka News as well. Also we covered it in a back issue of http://frlan.tumblr.com/ since it concerned refugees.

Chofor Che Christian-A • Thanks so much Dr. Babara Harell-Bond and Rebecca Browning for the enlightenment. It is indeed an honour to share information of this nature, with learned minds like you.  We still have a lot of work to do on land grabs.

Donald Rukare • In Uganda the existence of a multi-layered land tenure system lends itself to land grabbing. Land held under customary and communal land tenure is particularly at risk. This was evident in the recent High Court judgment in the case of Honourables M Ocula,C Aciro, D Pentyoo, U Zakeo, J Obalim vs. Amuru District Land Board, Major General Oketa, C.Atimango, Amuru Sugar Works Ltd HCT 02 CV MA No 126 of 2008. The application in this case where contesting the allocation of what they claimed was customary land by the Amuru District Land Board. Their application was thrown out because the court held they had inter-alia failed to prove that they held the land under customary tenure.

Chofor Che Christian-A • This is very vital information Donald Rukare. The case law is very useful. In such a situation, there is need for such a case to be taken to the African Commission. Where are the human rights lawyers in Uganda to help out with such a situation? Besides if such a case goes before the African Commission and eventually before the African Court, will the applicants benefit from any substantial redress?

 
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Posted by on July 28, 2012 in Uncategorized

 

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