How can governments and investors be held to account for land deals in Africa?

PLAAS | 11 December 2015

How can governments and investors be held to account for land deals in Africa?
by Sofia Monsalve Suarez and Ruth Hall 
This is the question addressed by researchers and activists at a recent IDRC Workshop on Large-scale Land Acquisitions (LSLAs) and Accountability in Africa, in Dakar, Senegal on 24-25 November 2015.  
The work was prompted by the rise in large-scale land acquisitions or ‘land grabs’ across many countries in sub-Saharan Africa — often dubbed Africa’s Land Rush — over the past seven years. Several international guidelines now exist stipulating how people rights should be secured in the face of such land acquistions, and the responsibilities of states and investors vis-à-vis rural communities.
Starting from a wide consultative meeting with civil society and research organisations in Accra in September 2012, IDRC programme leaders Ramata Thioune and Adrian Di Giovanni have over the past few years built an impressive funded programme to respond to the rush for land and other natural resources in Africa. The current programme that IDRC supports consists of 5 action research projects across 10 countries in West, East and Southern Africa.
The projects investigate how to build accountability over land governance. This is at the core of defending the rights of local people – sometimes against both states and investors – while also enabling them to choose to engage with commercial enterprises that may bring benefits to them. All this was informed by a set of scoping studies on women and land, and how to secure rights in different regions of Africa as well as research legal empowerment as a route to accountability in Africa’s land rush.
Across the countries, there is a combination of evident shortcomings in national laws, but also in their implementation. This much was clear from a synthesis of findings from all 5 projects. Law on paper seldom accords with law in practice, and the disparities disproportionately affect rural women whose tenure rights are often less recognised. For this reason, while having a broad scope, all the partners are focusing specifically on how the laws, their implementation, and local people’s own perspectives and alternatives, are gendered — and how alternatives in terms of land rights and land use can promote women’s access and benefits from land.
Land governance
Partners from across Africa discussed what has been learnt about the state of land governance.
In Mozambique, as in so many countries, laws recognising customary rights are widely violated, in part because people don’t know about them, and because there aren’t accessible institutions that can defend them, said Issufo Tankar of Centro Terra Viva.
It’s difficult to hold governments accountable when there is no transparency over land deals. As Téodyl Tchoudjen of CED in Cameroon reflected, ‘We try to identify all LSLAs. But this is not easy. Take just mining. The ministry does not have a centralised data bank and yet there are several hundred licenses. We need to warn people about these dangers.
‘We have used the Tenure Guidelines to raise awareness of rights among people. It is important for people to know that they are not alone or isolated in their struggle. The Tenure Guidelines give them the sense of being part of a larger movement’, said Chantal Jacovetti of CNOP/CMAT in Mali. The existence of the Guidelines also has enabled peasant movements to open doors to establish dialogue with governments, in some cases.
As Stephan Loroux of COPAGEN in Cote d’Ivoire argued, the state plays a two-pronged role: on the one hand a predatory role (expropriating land from its rural citizens) while also being neglectful (shirking its responsibilities to enforce its own laws). This echoes other work on ‘governing the global land grab’ which argued that not only does state-backed leasing of land to investors confirm state authority — especially in Africa where many states claim state ownership or trusteeship of all land — but that, in doing so, such transactions may well undermine state legitimacy.
Strengthening governance requires a multi-level strategy: at policy level as well as at community level. Philippine Sutz of the International Institute for Environment and Development, who argued for a more optimistic view of both states and investors. A project on Pathways to Accountability in the Global Land Rush: Lessons from West Africa has found that forging more inclusive business models can be game-changer, enabling both investors and local communities to benefit — but, they emphasise, the state is still centrally important if people’s rights are to be defended and concessions leveraged from investors.
Across the studies, there are gaps in terms of procedural rights. Who should be involved in decision-making about land transactions? Mamadou Fall of IED in Senegal argued that here, where municipalities are meant to publish any land transactions, local communities can forge agreements with them about democratic land governance and decision-making — in anticipation of possible future investment deals. Here, as in other countries, ‘consultation’ is in effect diluted to participation in meetings rather than meaningful or open discussions that comply with the principle in international law of ‘free, prior and informed consent’.
There are real risks, though, for those who object to land deals. As a participant from Ghana observed, ‘if demanding your rights would have negative effects on the social equilibrium, people might not be that willing to pursue their rights. There are many structural factors, including belief systems which militate against demands for rights.’ In fact, in this view, the ‘rights’ framing tends to ignore the social relations in which land is embedded and, for this reason, if not likely to gain traction in some social settings.
Valuation, benefit-sharing and compensation
Perhaps the most refreshing and contentious debate in all these discussions was about valuation, benefit-sharing and compensation. Even these terms presuppose that investments should dispossess people — but pay them out in some way, in cash, kind or alternative land. This in itself sparked debate. But Mark Kakraba Ampeh of the Land Resources Management Centre in Ghana recounted cases of people’s land being valued at $1 per acre per year. Acquisitions of community land involve valuations that bear no relation to any notional market value. As Mwenda Makathimo of LDGI in Kenya pointed out, conventional valuation methodologies do not capture the full stream of benefits for users. Community use of public land attracts no compensation for lost land rights and people are often unable to take legal action to challenge this as their rights fall outside of legal categories.
It is no surprise then that compensation for land loss almost always fails to take full account of the real value of natural resources in people’s lives — from growing food for themselves, to free water, grazing land, thatch grass and fuelwood, and numerous other uses which, once taken away, must be paid for.
So, how can communities determine value of their land and resources as a basis to decide whether or not to lease it out — and on what terms?
Namati’s ‘grassroots land and resource valuation exercise’ is one methodology that is being used to demonstrate to communities the full value of their current land and natural resources uses. This is based on estimating the monetary opportunity cost. Communities engage in participatory exercises to identify as many uses as possible, apply a monetary value for the purchase of equivalents, multiply by family members, and scale up to an annual figure in local currency. This shows that common lands and other resources are severely undervalued in general assessments, both by authorities and by communities themselves.
‘We want to use this data in advocacy, and make the case that low compensation rates and leases undermine people’s livelihoods, said Marena Brinkhurst. ‘Our calculations challenge conceptions that common lands have little value. There is all this value that is not in traditional market systems.’
Also discussed were alternatives to once-off compensation such as hybrid forms (cash, alternative land, shareholding) that can provide rural people with more resilient livelihood resources.
But how can one put a monetary value on a whole livelihood and lifestyle? And whose version of ‘value’ prevails when there is no ‘market’ but rather highly asymmetrical negotiations? As IDRC programme officer Adrian di Giovanni observed, our discussions highlighted the reality that land valuation is a political rather than a technical question.
‘There is a criticism that valuations promote land deals, whereas our experience is that having conducted a community resource valuation exercise actually reduces the likelihood of them selling off their land. It also strengthens the position of those in communities who are opposed to selling off land cheaply, and helps them with tools with which to challenge leaders who promote this’, said Brinkhurst.
Further questions arose about the fact that it is often family elders who gain compensation. What are the options for inter-generational benefit-sharing? So that young people and future generations will come to benefit from the proceeds of having transacted land.
Action strategies
In Liberia, SDI developed an ‘early warning system’ – a hotline staffed by trained activists who, when they get a call, obtain basic information about the land deal or land dispute and link communities up with local support organisations. They have also distributed some cellphones to rural community representatives and hosted radio talk shows. From these relatively simple interventions, they have dealt with about 70 calls about 20 different large-scale land acquisitions, mostly relating to oil palm and mining investments.
The US-based organization Namati, working with civil society groups in Mozambique, Liberia and Uganda, has assisted communities to hold leaders accountable by initiating participatory processes of drafting bylaws — before the investors come.
Marena Brinkhurst of Namati explains: ‘We found that it is a very effective way to give community members tools to hold their leaders accountable… It means community members can act as watchdogs of their own leaders. Having gone through this, they feel more empowered to engage in wider consultations.’
But how do local leaders react?
‘We found a lot of willingness from officials to participate in processes in which communities document their lands and land governance processes. The officials want to be involved and to support communities to develop their own bylaws and clarify their landholdings.’
Some of this experience suggests that involving leaders in local land governance early in the process can also strengthen their own legitimacy.
Women’s rights and ‘family land grabbing’
Many organisations supporting rural communities faced with losing their land are challenged with trying to ensure that women’s rights are respected, and their voices heard in the process. They navigate the territory of appealing for the recognition of culture and custom — including customary land rights — while at the same time arguing that customary tenure systems need to be transformed to secure women’s rights. This ‘double act’ is a widespread challenge for those who have political commitments to transforming gender relations even while resisting land grabs.
Land is not only being ‘grabbed’ by outside investors or state authorities. Judy Adoko of Uganda’s Land Equity Movement explained how her organization is focusing not on these big land deals, but on ‘family land grabbing’ which often occurs in cases of conflicts following the death of a family member. Her organisation is often approached by widows who have been evicted from their homes and dispossessed of their land by their in-laws.
Adoko explains: ‘When there are physical barriers (trees) or boundaries it is easier to defend the land. We advise women to plant trees so that it is not easy for the in-laws to take away the land of women after the death of husbands.’
These cases show how weak rights are in practice, and how cultural rather than legal strategies may be more effective. ‘At policy level, when we talk about customs and traditions, lawyers do not listen and refuse to accept evidence from the ground and to find ways to accommodate customary practices with the statutory system. But we are determined to show that the customary system works and can be much efficient and fair than the formal system’ said Adoko.
This was echosed by Irene Sama-Lang of the University of Buea in Cameroon, who observed that, in their study sites, ‘When women lost their land, they could not feed their families. Their social role was eroded. They have to start selling their labor force in plantations. Rural women have become in many places landless.
Collaboration and how to keep up to date with these projects
These diverse research and action projects across African countries provide a basis for information sharing and joint action. Teams agreed to share the tools they have developed and to build thematic clusters around early warning systems, community rights mapping, valuation and women’s rights in customary systems. Outputs from the projects will be shared on a virtual platform hosted by IDRC where videos and other materials will be available, and some plan to collaborate in joint advocacy efforts at national and sub-regional level and in engagements with the African Union and other continental bodies. 
Original source: PLAAS

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