THE CSCO NATIONAL OIL AND GAS CONFERENCE

By

Shem Byakagaba Executive Director Kitara Heritage Development Agency (KHEDA)

Mob: +256 772 433 440 Email: byashem@gmail.com 21st, October, 2013

Presentation outline Introduction

Land and compensation in Bunyoro KHEDA/IA study on land and compensation. National policy and legal framework International frameworks on management of land and compensation matters. Resettlement and compensation general issues. Free, informed and prior consent. Conclusion.

Introduction
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 improved access to basic human needs and rights. For this to happen, good governance, transparency and accountability should be key principles governing the management of this nascent sector. In the absence of these, conflicts, insecurity, corruption, neglect of vulnerable groups and violations of human rights disrupting livelihood will occur.

Land &Compensation in Bunyoro

Concerns about land tenure security, property compensation and relocation of communities have always generated much concern to Ugandans. The expansive oil industry has generated the need to acquire land to set up a refinery, access roads and other supportive infrastructure for the oil industry.

Land &Compensation contd..

There is increased demand for land to support the industry; and diminishing security of tenure. Critical issues arising include compensation for surface land rights, compensation upon compulsory land acquisition by government and resettlement of people displaced by oil activities. There is direct bearing on human rights such as the right to own property, the right to life, the right to culture and the right to education among others

KHEDA & IA Study

KHEDA and International Alert have therefore carried out a study to examine the policy and practical dimensions of compulsory land acquisition, compensation and resettlement amidst land tenure security concerns in Ugandas oil and gas sector.

Issues of study
Land security, land acquisition, property compensation, displacement and resettlement in the Albertine Graben The legal, policy and institutional frameworks guiding land security, land acquisition, property compensation and resettlement in the Albertine Graben

 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, land acquisition, property compensation and resettlement of project affected persons The recommendations for fair and adequate compensation of persons affected by oil activities

Issues contd..

Salient Findings
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 of customary land ownership. Most land in the region is not titled, or surveyed. Neither is it properly demarcated. Actual size of peoples land remains a speculation! There has been a government "ban on processing of land titles in the region though not fully adhered to by all.

Salient Findings
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 especially from the unsuspecting customary land owners. There is a definite scramble for land and artificial pricing of land in the region. The new land acquisitions are mainly by persons from outside the region

Salient Findings
The region is experiencing a diversity of projects. There is a misunderstanding of the different projects and their respective impacts, e.g. the exploration activities, the Kaiso Tonya road and the proposed refinery. 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 of Lands, or ministry of Energy??

Salient Findings
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 and signing of documents without clearly appreciating the import of such documents. There are also critical gender concerns with women rights inadequately protected. Child headed house holds and other vulnerable groups remain anxious.

Salient Findings
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 adequately prepared and equipped with knowledge and skills on utilization of money and harnessing the opportunities accruing from these developments.


Application of the National Policy And Legal Framework on Land and Compensation

1995 Constitution
Article 20 provides for: Fundamental and other human rights freedoms which states that fundamental and other human rights are inherent and not granted by the state Equality and freedom from discrimination which provides that all persons are equal before and under the law in all spheres of political, social, economic and cultural life and shall enjoy equal protection of the law

Constitution contd
Article 26 provides inter alia: Every person has a right to own property either individually or in association with others No person shall compulsorily be deprived of property or any interest in or right over property of any description except where under the following conditions: I. The acquisition is necessary for public use, or in the interest of national defence, public safety, public order, public morality or public health II. The acquisition is made under the law which makes provision for; prompt payment of fair and adequate compensation prior to the taking of the possession or acquisition of property

Constitution contd
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 the privacy of that persons home, correspondence, communication or other property Article 36 provides for protection of minorities to participate in decision making processes and their views and interests shall be taken into account in the making of national plans and programmes.

Constitution contd
Article 37 provides for a right to belong to, enjoy, practice, profess and promote any culture, cultural institution, language, tradition, creed or religion in community 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
Article 41 provides for the right to access to information and states; Every citizen has a right to information in the possession of the state or other organ or agency of the state except where the release of the information is going to prejudice the security or sovereignty of the state or interfere with the right of privacy of any other person

The Draft National Land Policy of 2011

The foreword to the 2011 Draft National Land Policy has described land as the most emotive, culturally sensitive, politically volatile and economically central issue in Uganda. The policy also recognizes that due to a breakdown of land dispute resolution mechanisms, land rights of vulnerable groups and land resource-dependent communities are either inadequately protected or poorly enforced. The Policy remains a draft!!!

The Land Act:

Section 43 provides that the Government or local Government may acquire land in accordance with the provisions of article 26 and 237(2) of the 1995 constitution. Section 76(1) (b) provides guidance on considerations 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 the unimproved land.

Land Act contd

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 the period 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 payable in respect of crops , building of a non permanent nature, and any other things that may be prescribed. The list mentioned must be reviewed annually.

Land Acquisition Act:

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

minister is empowered to acquire any land if he is satisfied that the land is required for Public Purpose. Compensation to any person whose interest in land is extinguished as a result of the compulsory acquisition is expressly provided for and any person aggrieved by the Ministers decision or by the compensation paid may appeal to the High Court. Section 5(1) provides that an assessment officer shall make an award under his hand specifying the compensation, which in his opinion should be allowed for the land.

Land Acquisition Act:

Section 20 provides that the Minister, by Statutory Instrument shall make regulations for the assessment and payment of compensation under the Act. No such regulations have been made!! Section 13 provides for redress to any aggrieved persons and provides that in such event, the person objecting to the award made or any part of the award or where the assessment officer excludes the person from apportionment, may appeal to the High Court within 60 days of the award made. How feasible is it for such PAPs to invoke s.13?


International Frameworks on handling Land, Compensations and Resettlements

The Universal Declaration on Human Rights (UDHR):

Article 2 of the UDHR provides for the guarantee and protection of all the rights defined under the declaration for everyone. It prohibits discrimination on 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 individual against arbitrary deprivation of ones property. Recognizes that all human beings are born free and equal in dignity and rights

The International Covenant on Civil and Political Rights (ICCPR):

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 of subsistence. Article 2 (1) obligates state parties to respect and ensure that the rights of individuals defined in the Covenant are enjoyed without distinction or without discrimination on the basis of the prohibited grounds mentioned in the UDHR above.

ICCPR contd..
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 protection from discrimination within their domestic settings.

International Covenant on Economic, Social and Cultural Rights (ICESCR):

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 people of its subsistence means. Article 2(2) obligates state parties to the covenant to guarantee non discrimination of individuals in the enjoyment of Covenant rights on the basis of the prohibited grounds discussed above. Article 3 adopts the spirit in the ICCPR by requiring states to ensure the right to equal treatment for all men and women in the enjoyment of the Covenant rights.

The African Charter on Human and peoples Rights:

Article 2 provides for the protection and guarantees the individuals right to enjoy charter rights without any distinction and or based on any of the prohibited grounds. Article 3 provides for equality before the law and for equal protection by the law for every individual. Article 14 guarantees the right of every individual to property. It provides the exception of public interest where such property may be encroached on or taken but in any event this must be in accordance with the existing laws.

The World Bank Policy on Involuntary Settlement (Revision of 2013)

The World bank acknowledges that involuntary resettlement under development projects, if unmitigated, often gives rise to severe economic, social, and environmental risks: production systems are dismantled; people face impoverishment when their productive assets or income sources are lost; people are relocated to environments where their productive skills may be less applicable and the competition for resources greater; community institutions and social networks are weakened; kin groups are dispersed; and cultural identity, traditional authority, and the potential for mutual help are diminished or lost. The policy is thus intended to safeguard, address and mitigate these impoverishment risks faced by PAPs.

 The overall objectives of the Bank's policy on involuntary resettlement are the following: Avoid where feasible, or minimize and explore all viable alternative project designs. Where it is not feasible to avoid resettlement, resettlement activities should be conceived and executed as sustainable development programs, providing sufficient investment resources to enable the persons 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 and implementing resettlement programs. Displaced persons should be assisted in their efforts to improve their livelihoods and standards of living or at least to restore them, in real terms, to pre-displacement levels or to levels prevailing prior to the beginning of project implementation, whichever is higher.

World Bank contd

World Bank contd 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 another location; or The involuntary restriction of access to legally designated parks and protected areas resulting in adverse impacts on the livelihoods of the displaced persons. This policy applies to all components of the project that result in involuntary resettlement, regardless of the source of financing. It also applies to other activities resulting in involuntary resettlement.

World Bank contd

In addition, the resettlement plan should also include measures to ensure that displaced persons are Offered support after displacement, for a transition period, based on a reasonable estimate of the time likely to be needed to restore their livelihood and standards of living; and Provided with development assistance in addition to the compensation described above such as land preparation, credit facilities, training, or job opportunities.

 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

Compensation assets, rights, are multi Resettlers losses in income,

faceted and include: economic ( cash and kind), social, cultural, opportunities, power. Resettlers lose not only natural or man-made physical capital but also human and social capital, through the unraveling patterns of social organization and of mutual help networks. The income lost is not only cash income, but also wealth that is psychological in nature, including culture, status, and identity. Compensation MUST therefore be cognizant of the above.

Compensation contd.. Michael M Carnea ( 1999) has asserted that;

Compensation

and resettlement serve to make Project affected persons poorer. Compensation is structurally unable to resolve the task of restoring incomes and livelihoods to where they would be in the absence of forced displacement. Despite the use of compensation payments, many development projects intended to alleviate poverty end up increasing poverty by displacing large numbers of people without reestablishing them viably.

Compensation contd..
That being confined to compensation as the lone economic remedy, prevents the realistic financing of resettlement: It does not lead to the allocation of commensurate resources for post-displacement reconstruction, but rationalize under-financing, and contributes to project-induced impoverishment. He argues that; the magnitude of the combined material and nonmaterial impoverishment risks and losses experienced by those displaced far exceeds the redeeming powers of narrow compensation-centered solutions offered by conventional economics.

Free, Prior and Informed Consultation/Consent

This is early engagement with stakeholders (esp. indigenous peoples) with the aim of obtaining broadbased 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 impacts o Consultation = methodical approach to engagement o Consent = agreement

Conclusion & Recommendations

There is urgent need to review and carefully/ sensitively manage the whole compensation exercise. Free, informed and prior consent should always be adhered to in the execution of such sensitive projects The policy and legal frame work on land in Uganda specifically the Land Act, the Land acquisition Act and the 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.

God Bless Uganda