Consultation and consent

The research found a widespread failure to adequately consult. People were likely to be affected by commercial investments, either because there were no national norms for consultation (as in Zambia) or because these existed but were flouted in practice (as in Mozambique, Namibia).

Consultation had been done in a cursory manner, often after a decision to go ahead with a project was agreed in principle by key players – it had been reduced to a matter of ‘ticking boxes’. Poor levels of information and understanding also rendered consultation hollow. In some instances, rural people had understood that they were signing up to apply for jobs, when in fact they signing documents indicating community consent for a project on their land.

A short movie produced as part of the project records the experiences of rural people who say that their chief informed them that they were to be removed from their homes and farms – and that they were not themselves consulted on the commercial investment on their land.

A striking finding of the study was that inadequate consultation is not only a problem for affected communities – it’s not good for investors either. Several commercial investments have been delayed by years, or have had to be re-negotiated, as a result of local opposition, and the absence of due process also led to costly court battles in some cases, as in Malawi.

Achieving ‘free, prior and informed consent’

‘Free, prior and informed consent’ is a principle embodied in international law, and in the FAO Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests as well as the African Union’s Guiding Principles on Large Scale Land Based Investments in African Agriculture. It is a precondition for good governance of transactions affecting community land.

Yet FPIC is still to be guaranteed in Zambia’s land and investment laws. Achieving FPIC is about providing full information in an accessible manner to everyone who may be directly or indirectly affected; doing so before any decision is taken; and about people having free choice as to whether to provide or withhold consent.

As Eneya Maseko of Oxfam aptly put it, ‘it is like this: if I as a man want to be with a woman, she must be able to say yes and she must be able to say no. That is what I mean by consent. Not that you are consulted and then the decision gets taken by someone else.’

Displacement and resettlement

The meeting heard that, in the cases studied, communities had been unable to affect decisions regarding their land, and compensation, resettlement and corporate social responsibility programmes were inadequate.

Ceasar Katebe of Zambia Alliance of Women recounted the effects on 570 households displaced to make way for a Canadian mining project in Solwezi district, North-western province.

‘Families have to walk 35 km to bury deceased relatives – their land has been fenced off, and resettled communities have no graveyards’, he said, following a follow-up field trip earlier this month. ‘These are poor people; they have no money to transport their dead relatives.’

In the four case studies presented by Zambia Land Alliance, there had been minimal and sometimes no community consultation on the resettlement process. As Katebe pointed out, this is a distinct process from consultations on a land deal: even if people are willing to transact their land, what constitutes adequate provisions for resettlement?

Zambia currently has no legal or regulatory provisions to guide resettlement and compensation.

Repeated dispossessions

There is also the spectre of repeated dispossession. In the Solwezi case, the people who were removed are still within the mining rights area, and have not and will not receive title to the houses where they have been resettled. This renders them vulnerable to further dispossession in the future if or when the company expands its operations to their resettlement area.

The meeting heard of another case at Mbonge, close to Solwezi town, where a community is now earmarked to be resettled for a third time. Sub-chief Mbonge reportedly said his community had lived in the area for more than 100 years, and in recent years they were moved to make way for mining, then moved again, and now face another displacement – this time possibly out of the area.

Dispossession or development?

The Lusaka meeting saw a lively discussion on how the costs and benefits of mining are distributed, and what material improvements it brings in impoverished rural areas.

As an official from the Ministry of Mines put it:

‘Why is this so controversial? When mines come, there is development, there are houses and schools and clinics close by. These are communities that have been living there for hundreds of years, and they haven’t seen any improvement. When mines come, they come with development.’

This was not a view shared by other participants, including government officials. Katebe disputed this view on the basis of the research conducted. In the absence of any written agreements, he said, companies have reneged on their verbal commitments to provide social services and jobs for local people:

‘The resettled communities are thrown away from where they were, and are quite isolated. They have houses but not land to farm on. They walk back to their old farmland, even though they are not meant to farm there – they commute back, and have to employ people to look after their children. The houses provided as resettlement are formal houses – in that sense better than their prior houses – but are small and whole extended households are crowded into two-roomed structures, whereas in the past they had separate homes as part of one homestead.’

The meeting heard that, in the absence of legal and policy clarity, responsibilities for providing social services to people displaced to make way for commercial investments tends to fall between stools.

One participant asked: ‘But who is in charge? Is it the mine? Is it the government?’ In practice, in the Solwezi case, the resettled community has neither a school nor a clinic, and the meeting heard testimony from a woman that her children had not been to school since they were relocated.

Customary land: weak rights, cheap deals

Zambia is an attractive destination for investors due to the relatively low cost of land – particularly if obtained directly from chiefs, as pointed out by Maseko. Added to this is the perceived abundance of land and water, access to Southern African markets, and political stability, he said.

Obtaining state land is simpler than obtaining customary land, but state land is far more expensive. The pressure by investors to get customary land, then, is influenced by the fact that the insecure tenure arrangements make this land artificially cheap.

Zambia’s state of flux in law and policy

Current and recent efforts to strengthen Zambia’s land governance include:

• Amendments to the Lands Act of 1995 (Bill not passed by parliament)
• National Land Policy (which has been in draft for over a decade)
• Land Audit
• Customary Land Administration Bill (not yet published)
• National Resettlement Policy (adopted by Cabinet but not yet published)
• Resettlement and Compensation Guidelines

While Zambian lawmakers re-write this framework, they are doing so apparently in the absence of needed information on the current status of landholdings in the country. Statistics of land under customary tenure have reportedly not been properly updated since the colonial period and, while there have been numerous conversions from customary to statutory land, nobody knows how much or where it all is.

The meeting heard calls for the policy process to be opened up to more meaningful public participation. As one participant observed, ‘we have a new resettlement policy but we don’t know where it is or who took part in drawing it up.’ ZLA director, Nsama Nsemiwe confirmed the news: ‘Government adopted the Resettlement Policy 2-3 weeks ago [but] we haven’t seen it.’

One of the options discussed at the meeting is the possibility of establishing a national working group of relevant stakeholders to look at all of these bills, policies and guidelines in conjunction with one another. Given that they are all inter-related, what is needed is a holistic vision of what new land tenure regime is to be legislated and how it will be governed.

More about the project

Project homepage: Commercialisation of Land and ‘Land Grabbing’: Implications for Land Rights and Livelihoods in Southern Africa

Photo: Anna Fawcus / WorldFish / Flickr