Land Rights and Compensation Issues in Uganda's Oil Bearing Areas

7/27/2019 Land Rights and Compensation Issues in Uganda's Oil Bearing Areas

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THE CSCO NATIONAL OIL AND GASCONFERENCE

By

Shem Byakagaba

Executive Director

Kitara Heritage Development Agency (KHEDA)

Mob: +256 772 433 440

Email: [email protected]

21st, October, 2013
mailto:[email protected]:[email protected]


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Introduction

Land and compensation in Bunyoro

KHEDA/IA study on land and compensation.National policy and legal framework

International frameworks on management of landand compensation matters.

Resettlement and compensation general issues. Free, informed and prior consent.

Conclusion.

Presentation outline


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The discovery of oil in Uganda presents an opportunity

for the country to earn revenues to uplift millions of

Ugandans from poverty to better life with improvedaccess to basic human needs and rights.

For this to happen, good governance, transparency andaccountability should be key principles governing themanagement of this nascent sector.

In the absence of these, conflicts, insecurity, corruption,neglect of vulnerable groups and violations of humanrights disrupting livelihood will occur.

Introduction


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Concerns about land tenure security,

property compensation and relocation ofcommunities have always generated muchconcern to Ugandans.

The expansive oil industry has generated the

need to acquire land to set up a refinery,access roads and other supportiveinfrastructure for the oil industry.

Land &Compensation

in Bunyoro


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There is increased demand for land to support

the industry; and diminishing security of tenure.

Critical issues arising include compensation forsurface land rights, compensation uponcompulsory land acquisition by government andresettlement of people displaced by oil activities.

There is direct bearing on human rights such asthe right to own property, the right to life, theright to culture and the right to education amongothers

Land &Compensation

contd..


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KHEDA and International Alert have

therefore carried out a study to examinethe policy and practical dimensions ofcompulsory land acquisition,compensation and resettlement amidstland tenure security concerns inUgandas oil and gas sector.

KHEDA & IA Study


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Land security, land acquisition,

property compensation, displacementand resettlement in the AlbertineGraben

The legal, policy and institutional

frameworks guiding land security, landacquisition, property compensation andresettlement in the Albertine Graben

Issues of study


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The impact of oil exploration on land security,

land acquisition, property compensation and

resettlement in the Albertine Graben

The lessons to be leant about land security, landacquisition, property compensation andresettlement of project affected persons

The recommendations for fair and adequatecompensation of persons affected by oil activities

Issues contd..


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Land concerns in Bunyoro are historical. Majority of

land is held under customary tenure. However, there

are very few people that have or know certificates ofcustomary land ownership.

Most land in the region is not titled, or surveyed.Neither is it properly demarcated. Actual size ofpeoples land remains a speculation!

There has been a government "ban on processing ofland titles in the region though not fully adhered toby all.

Salient Findings


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The community has limited information about land, land

rights, land acquisitions, compensation processes,

compensation rates and remedies when aggrieved. Notwithstanding the ban on land purchase, there is

continued and vigorous purchasing of land especiallyfrom the unsuspecting customary land owners.

There is a definite scramble for land and artificial pricingof land in the region. The new land acquisitions aremainly by persons from outside the region

Salient Findings


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The region is experiencing a diversity of projects.

There is a misunderstanding of the different projects

and their respective impacts, e.g. the explorationactivities, the Kaiso Tonya road and the proposedrefinery.

As a result, some people do not know who exactly is

supposed to compensate them: Is it Oil companies,the Central government, the Local Government,UNRA, strategic Friends international, ministry ofLands, or ministry of Energy??

Salient Findings


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The RAP process has raised fundamental concerns

including disputes on sizes of affected land,

valuation of land and the developments there on,acknowledgment of payments not yet received andsigning of documents without clearly appreciatingthe import of such documents.

There are also critical gender concerns with womenrights inadequately protected. Child headed households and other vulnerable groups remain anxious.

Salient Findings


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There is visible impact of the new developments in

the region. Majority of the community welcome the

developments.However, the community in the refinery area and

the region as a whole has not been adequatelyprepared and equipped with knowledge and skills

on utilization of money and harnessing theopportunities accruing from these developments.

Salient Findings


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Application of the NationalPolicy And Legal Framework on

Land and Compensation


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Article 20 provides for:

Fundamental and other human rights freedoms

which states that fundamental and other humanrights are inherent and not granted by the state

Equality and freedom from discrimination whichprovides that all persons are equal before and

under the law in all spheres of political, social,economic and cultural life and shall enjoy equalprotection of the law

1995 Constitution


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Article 26 provides inter alia:

Every person has a right to own property either individually orin association with others

No person shall compulsorily be deprived of property or anyinterest in or right over property of any description exceptwhere under the following conditions:

I. The acquisition is necessary for public use, or in the interest ofnational defence, public safety, public order, public morality

or public healthII. The acquisition is made under the law which makes provision

for; prompt payment of fair and adequate compensation priorto the taking of the possession or acquisition of property

Constitution contd


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Article 27 provides for the right to privacy of person,

home and other property and states in clause 2, that

no person shall be subjected to interference of theprivacy of that persons home, correspondence,communication or other property

Article 36 provides for protection of minorities to

participate in decision making processes and theirviews and interests shall be taken into account in themaking of national plans and programmes.

Constitution contd


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Article 37 provides for a right to belong to, enjoy,

practice, profess and promote any culture, cultural

institution, language, tradition, creed or religion incommunity with others.

Article 40 provides for economic rights whereby:

I. persons should work under satisfactory, safe and

healthy conditions.II. There is equal payment for equal work without

discrimination

Constitution contd


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Article 41 provides for the right to access to informationand states;

Every citizen has a right to information in thepossession of the state or other organ or agency of thestate except where the release of the information isgoing to prejudice the security or sovereignty of the

state or interfere with the right of privacy of any otherperson

Constitution contd


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The foreword to the 2011 Draft National Land Policy

has described land as the most emotive, culturally

sensitive, politically volatile and economicallycentral issue in Uganda.

The policy also recognizes that due to a breakdownof land dispute resolution mechanisms, land rightsof vulnerable groups and land resource-dependent

communities are either inadequately protected orpoorly enforced.

The Policy remains a draft!!!

The Draft National Land Policy of

2011


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Section 43 provides that the Government or local

Government may acquire land in accordance

with the provisions of article 26 and 237(2) of the1995 constitution.

Section 76(1) (b) provides guidance onconsiderations to be made when valuing land to

include the following; In the case of a customary owner, the value of

land shall be the open market value of theunimproved land.

The Land Act:


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The value of building on the land, which shall be

taken at open market value for urban areas and

depreciated replacement costs for the rural areas. The value of standing crops on the land, excluding

annual crops which could be harvested during theperiod of notice is given to the tenant, etc.

S59 (l) (e) requires a District Land Board to compile

and maintain a list of rates of compensation payablein respect of crops , building of a non permanentnature, and any other things that may be prescribed.The list mentioned must be reviewed annually.

Land Act contd


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S.2 (1) of the land Acquisition Act provides that the

minister is empowered to acquire any land if he issatisfied that the land is required for Public Purpose.

Compensation to any person whose interest in land isextinguished as a result of the compulsory acquisition isexpressly provided for and any person aggrieved by theMinisters decision or by the compensation paid mayappeal to the High Court.

Section 5(1) provides that an assessment officer shallmake an award under his hand specifying thecompensation, which in hisopinion should be allowedfor the land.

Land Acquisition Act:


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Section 20 provides that the Minister, by Statutory

Instrument shall make regulations for the assessment andpayment of compensation under the Act.

No such regulations have been made!!

Section 13 provides for redress to any aggrieved personsand provides that in such event, the person objecting tothe award made or any part of the award or where theassessment officer excludes the person fromapportionment, may appeal to the High Court within 60days of the award made.

How feasible is it for such PAPs to invoke s.13?

Land Acquisition Act:


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International Frameworks onhandling Land, Compensations

and Resettlements


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Article 2 of the UDHR provides for the guarantee

and protection of all the rights defined under the

declaration for everyone. It prohibits discriminationon the grounds of race, color, sex, language, religion,political or other opinion, national or social origin,property, birth or other status.

Article 17 of the declaration guarantees specifically

the right to property and protects an individualagainst arbitrary deprivation of ones property.

Recognizes that all human beings are born free andequal in dignity and rights

The Universal Declaration on HumanRights (UDHR):


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Article 1 (2) provides for the right of peoples to

freely dispose of their natural wealth and resources

and protects against deprivation of their means ofsubsistence.

Article 2 (1) obligates state parties to respect andensure that the rights of individuals defined in the

Covenant are enjoyed without distinction or withoutdiscrimination on the basis of the prohibited groundsmentioned in the UDHR above.

The International Covenant on Civil and PoliticalRights (ICCPR):


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Article 2 (3) provides for the right of an individual to

an effective remedy in the event of a right under the

said instrument being violated.Recognizes equality before the law and equal

protection of the law and without discrimination.

States are accordingly obliged to enact legislation to

provide for equality before the law and protectionfrom discrimination within their domestic settings.

ICCPR contd..


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Article 1 provides for the rights of peoples to freely

dispose of their natural resources and wealth.

It further prohibits the arbitrary deprivation of a peopleof its subsistence means.

Article 2(2) obligates state parties to the covenant toguarantee non discrimination of individuals in theenjoyment of Covenant rights on the basis of theprohibited grounds discussed above.

Article 3 adopts the spirit in the ICCPR by requiring statesto ensure the right to equal treatment for all men andwomen in the enjoyment of the Covenant rights.

International Covenant on Economic, Social andCultural Rights (ICESCR):


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Article 2 provides for the protection and guarantees the

individuals right to enjoy charter rights without anydistinction and or based on any of the prohibitedgrounds.

Article 3 provides for equality before the law and forequal protection by the law for every individual.

Article 14 guarantees the right of every individual toproperty.

It provides the exception of public interest where suchproperty may be encroached on or taken but in any eventthis must be in accordance with the existing laws.

The African Charter on Human andpeoples Rights:


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The World bank acknowledges that involuntary resettlement

under development projects, if unmitigated, often gives rise tosevere economic, social, and environmental risks: production

systems are dismantled; people face impoverishment whentheir productive assets or income sources are lost; people arerelocated to environments where their productive skills may beless applicable and the competition for resources greater;community institutions and social networks are weakened; kingroups are dispersed; and cultural identity, traditional

authority, and the potential for mutual help are diminished orlost.

The policy is thus intended to safeguard, address and mitigatethese impoverishment risks faced by PAPs.

The World Bank Policy on InvoluntarySettlement (Revision of 2013)


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The overall objectives of the Bank's policy on involuntary resettlement

are the following:

Avoid where feasible, or minimize and explore all viable alternativeproject designs.

Where it is not feasible to avoid resettlement, resettlement activitiesshould be conceived and executed as sustainable developmentprograms, providing sufficient investment resources to enable thepersons displaced by the project to share in project benefits.

And the displaced persons should be meaningfully consulted and

should have opportunities to participate in planning andimplementing resettlement programs.

Displaced persons should be assisted in their efforts to improve theirlivelihoods and standards of living or at least to restore them, in realterms, to pre-displacement levels or to levels prevailing prior to thebeginning of project implementation, whichever is higher.

World Bank contd


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The involuntary taking of land resulting in (i) relocation

or loss of shelter; (ii) loss of assets or access to assets; or(iii) loss of income sources or means of livelihood,

whether or not the affected persons must move to anotherlocation; or

The involuntary restriction of accessto legally designatedparks and protected areas resulting in adverse impacts onthe livelihoods of the displaced persons.

This policy applies to all components of the project thatresult in involuntary resettlement, regardless of thesource of financing. It also applies to other activitiesresulting in involuntary resettlement.

World Bank contd


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In addition, the resettlement plan should also

include measures to ensure that displaced persons

are Offered support after displacement, for a transitionperiod, based on a reasonable estimate of the timelikely to be needed to restore their livelihood andstandards of living; and

Provided with development assistance in addition tothe compensation described above such as landpreparation, credit facilities, training, or jobopportunities.

World Bank contd


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Evidence reveals that resettlement & compensation is

always accompanied by the following risks: Landlessness;

Joblessness; Homelessness; Marginalization; Increased morbidity and mortality; Educational losses; Food insecurity; Loss of common property; and Social disarticulation.

Resettlement &

Compensation


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Resettlers losses in income, assets, rights, are multi-faceted and include: economic ( cash and kind),social, cultural, opportunities, power.

Resettlers lose not only natural or man-madephysical capital but also human and social capital,through the unraveling patterns of socialorganization and of mutual help networks. Theincome lost is not only cash income, but also wealththat is psychological in nature, including culture,

status, and identity.Compensation MUST therefore be cognizant of the

above.

Compensation


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Michael M Carnea ( 1999) has asserted that;Compensation and resettlement serve to make

Project affected persons poorer. Compensationis structurally unable to resolve the task ofrestoring incomes and livelihoods to where theywould be in the absence of forced displacement.Despite the use of compensation payments,

many development projects intended toalleviate poverty end up increasing poverty bydisplacing large numbers of people withoutreestablishing them viably.

Compensation contd..


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That being confined to compensation as the loneeconomic remedy, prevents the realistic financing ofresettlement: It does not lead to the allocation of

commensurate resources for post-displacementreconstruction, but rationalize under-financing, andcontributes to project-inducedimpoverishment.He argues that;the magnitude of the combined material and non-

material impoverishment risks and losses experiencedby those displaced far exceeds the redeeming powers ofnarrow compensation-centered solutions offered byconventional economics.

Compensation contd..


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This is early engagement with stakeholders (esp.indigenous peoples) with the aim of obtaining broad-

based acceptance of the project. It means:o Free = no external pressures/interference

o Prior = before major project decisions made

o Informed = locals understand potential project

impactso Consultation = methodical approach to engagement

o Consent = agreement

Free, Prior and Informed

Consultation/Consent


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There is urgent need to review and carefully/ sensitively

manage the whole compensation exercise.

Free, informed and prior consent should always beadhered to in the execution of such sensitive projects

The policy and legal frame work on land in Ugandaspecifically the Land Act, the Land acquisition Act andthe attendant Regulations need to be urgently updated or

enacted to take care of the unique scenarios of O&G CSOs should proactively influence policy and facilitate

redress to PAPs.

Conclusion &

Recommendations


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God Bless Uganda

Land Rights and Compensation Issues in Uganda's Oil Bearing Areas

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