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“Land grabbing” in Africa: An emerging legal framework highlights a lack of accountability for the UK’s role in the violation of land rights

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“Land grabbing” in Africa: An emerging legal framework highlights a lack of accountability for the UK’s role in the violation of land rights

RebeccaLast month, in honour of Human Rights Day on the 8th of December, the London law firm Leigh Day hosted an event entitled “‘Land Grabs,’ Human Rights, and the UK.” Rebecca Marlin, MRG’s legal Fellow, reports back.

The event was well-attended and fostered a stimulating discussion of the very important issue of “land grabbing,” a term used to describe the seizure of land belonging to or inhabited by indigenous people, farmers, and those living in informal urban settlements, by governments and non-state actors for commercial exploitation.

Land grabbing is of particular relevance to MRG, as our legal cases department has made significant progress in representing indigenous people in East Africa who have been deprived of their ancestral lands by the government. In 2010, MRG assisted the Endorois of Kenya in securing a landmark victory against the government before the African Commission of Human and Peoples’ Rights, and and for the last 5 years, MRG has been representing the Ogiek of Kenya in a land rights case that was heard by the African Court of Human and Peoples’ Rights in November 2014. MRG has also been working with a Maasai community in Tanzania to secure rights to land claimed by a US-based tourism company called Thomson Safaris, as well as advising in several other East Africa indigenous land rights cases.

Copyright Carla Clarke, MRG
Land claimed by Thomson Safaris, Tanzania. Copyright Carla Clarke, MRG

 

The first speaker of the night was Meghna Abraham of Amnesty International, who gave a concise yet highly informative overview of the human rights foundation which has been developed to protect against land grabbing. She clarified that “land grabbing” in fact refers to forced eviction, which is addressed  by many human rights treaties, including in article 16 of the UN Convention Against Torture prohibiting cruel, unusual or degrading treatment.

Ms. Abraham then went on to lay out the 3-part test of whether a forced eviction has occurred. The first part asks whether there has been genuine consultation with the community, with a focus on providing information as well as exploring alternative options as suggested by the community. Secondly, there is an examination of due process of the eviction: was there adequate prior notice that an eviction would occur? Were remedies offered for those who wished to challenge the eviction? And thirdly, there must have been adequate alternative land and compensation provided after the eviction.

To illustrate these concepts, Ms. Abraham described a forced eviction which took place in the Badia East settlement in Lagos, Nigeria in February 2013. An informal settlement housing 150,000 people was demolished with no prior notice to the inhabitants, no consultation with the community, and no compensation or alternative housing provided. Ironically, the forced eviction was orchestrated by the local government in order to build housing on the land for others. Ms. Abraham emphasized that “they had bulldozed years of investment for the community.” The take-away from this portion of the evening’s discussion was that more legal analysis must be undertaken to determine on what basis a government can acquire land, and what framework a government must have established before taking land.

The second speaker was Rosa Curling, a solicitor at Leigh Day who addressed the role of the UK government in land grabbing cases. Ms. Curling discussed the troubling process of “villagisation,” whereby governments choose to move indigenous people or long-time inhabitants of an area to a newly-created “village,” often with disastrous consequences. In one such case in Ethiopia, a man identified only as Mr. O was forced off his land by soldiers and moved into a new village. He alleges that members of his community suffered beatings, rape, and consequently new infections of HIV due to the villagisation process.

Maasai women of Sukenya village. Copyright Carla Clarke, MRG.
Maasai of Sukenya village, Tanzania. Copyright Carla Clarke, MRG.

Mr. O now has refugee status in the UK and is challenging the UK’s role in his particular case of villagisation: Ms. Curling reports that the Ethiopian government currently receives approximately £324 million of aid through the UK Promotion of Basic Services Program, some of which has gone to the villagisation process. UK policy requires action if it is found that violations of human rights have been committed using UK money, and a UK assessment of aid in the Ethiopia villagisation was thusly conducted. The UK has since refused to make public the findings of the assessment or to publish it. Leigh Day has issued proceedings to have the findings made public and to challenge the assessment process. A hearing will be held in March.

The last segment of the discussion involved the rights of indigenous people to ancestral land. The barrister Gordon Bennett, who has extensive experience on such cases in Botswana, spoke on the issue and discussed FPIC– Free, Prior, and Informed Consent.

Mr. Bennett explained that though FPIC is a human rights principle, it is statutory and actionable in very few jurisdictions, and the UK is not one of them. There exists only one international legally-binding instrument on the rights of indigenous people, International Labor Organization Convention No. 169; the UK has refused to ratify the Convention based on the claim that there are no indigenous people within the UK. Mr. Bennett has proposed the idea of a bill which obligates UK companies to use reasonable measures to ensure that projects are compliant with Convention 169, but this proposition has been rejected. The result is that there currently exists no way for indigenous people to challenge the actions of UK companies using UK law on any basis stronger than tort law, for example, requesting small amounts of compensation for damage to specific properties.

Mr. Bennett made a salient point about how forced eviction for indigenous people is different than for other communities. Although it may be possible to relocate indigenous people, alternative land will never be adequate because of the inextricable link between the people and their particular ancestral land: “There is an extraordinarily intimate connection between tribal communities and their lands,” he highlighted. Often this land contains the graves of ancestors, special sites of worship, and plant and animal life which play a role in the community’s way of life. The land is part of their life, livelihood, and cultural heritage; these lands are priceless. MRG has found this to be the case for the Endorois, the Ogiek and the Maasai, who now struggle to maintain traditional values and links to their ancestors while being denied access to their ancestral land. The loss of such traditions is devastating, as cultural diversity is valuable for progress and development.

A running theme through each of the three parts of the discussion was the need for further development of a legal framework that adequately addresses forced eviction. Ms. Abraham highlighted that as the law stands it is not always clear in what circumstances a government may appropriate land for public use. Ms. Curling explained there must be an emphasis on proper investigation by the UK into alleged violations. Mr. Bennett used the analogy of rummaging through a “toolbox” of legal remedies to look for a way to advocate for victims of forced eviction.

This comprehensive evening of discussion provided an excellent overview of the problem of forced eviction and the UK’s role in such land grabbing in Africa, and will hopefully prompt further exploration of proper remedies. Overall the message came through clearly that it is necessary to listen to affected communities and speak with them on their own terms about managing their land.

To hear a recording of the event, please visit https://soundcloud.com/leighday-1/land-grabs-human-rights-and-the-uk.

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