Promoting Development through Legal Identity

Millions of people around the world are shadow citizens in their own country. In its latest white paper, Haki analyzes the barriers to development created by legal identity deficits around the world. From Egypt to the Dominican Republic, the poor and marginalized are deprived of legal recognition, rights, and access to public services that legal identity helps provide. In many cases its systematic, political and discriminatory.

Haki Legal Identity and Development White Paper

How Strong Land Rights Improve Governance and Promote Transparency

There is a movement at hand to reform land governance and increase transparency in large-scale land acquisition and resource extraction.

The movement to date has largely focused on international mechanisms, such as the Extractive Industries Transparency Initiative and the Voluntary Guidelines for Land Governance, that intend to create standards by which national governments and multinational companies abide. Their creation and enforcement rely on political pressure, international coordination, input from stakeholders and voluntary goodwill.

These initiatives are an important, sincere effort by the international community that should be championed loudly. They are, however, an incomplete solution. The premise they rely on is that improving transparency is critical to improving land rights and resource governance. In fact, it is the other way around. Strong land rights improve transparency.

Land rights and local ownership of land and resources are the bedrock for effective institutions, government transparency and democracy. This point is rarely understood to its full extent by the international community which largely prefer to operate at the international framework and treaty level to create headlines and flashy new initiatives, neglecting the roots and harsh local reality of the problem.

To understand how land impacts transparency, you need to consider how governments work.

Governance, in its purest form, is a social contract with the people to provide services. In return, the people submit to taxation to generate the funds necessary for this service delivery. If service is below expectations, governments are forced to change, reduce taxes, or be voted out. This tax and spend dynamic and the social contract that frames it is the essence of democratic governance and creates the incentives for government transparency.

In developing countries around the world, this social contract has never adequately formed. Why? Because land and resource rights are not in the hands of citizens.

Upon independence, national governments inherited legal ownership from colonial powers over large swaths of land, and, in most cases, over all natural resources. This colonial vestige has never been rectified, despite the fact that people have been and continue to live on the land that legally is not theirs. This is particularly true for natural resources such as minerals and timber, where state ownership and access is supreme to the surface use rights of local inhabitants. The state’s social contract is with with its resources, not its citizens.

This basic legal framework has far-reaching effects on transparency and good governance. Because local land and resource ownership is weak or nonexistent, there is no dynamic between taxation, government revenue, and service to its citizens. Most government revenue comes directly from natural resource extraction and concessions with multinational companies. This independent, unmonitored revenue stream dwarfs all others in many developing countries and destroys the fundamental incentives for governments to be transparent and responsive to citizens, causing the infamous “resource curse”.

This dynamic, however, is coming to light amid a groundswell of support to community land rights.

I spent the last week at an international meeting on community land rights of local organizations and their international partners. A coalition is being formed, composed of local efforts to legalize the devolution of land rights to individuals and local communities. Indigenous communities in the Philippines, villages in Tanzania, and communities across the Amazon basin are titling their land and demanding that their ownership extend to the resources on and below.

Their efforts are increasingly being supported by the international development and donor community and, as was evident in the conference, by private sector companies such as Nestle, Unilever and Rio Tinto that desire a more transparent, humane way of investing in developing countries. This is not a radical agenda. It is a collective declaration that healthy democracies, transparent and effective governance, economic development, food security, environmental conservation, and peace depend on land rights.

THaki and our network partners are advancing this agenda and strengthening local land rights to promote transparency at the national and international level. Locally we advocate for greater openness in the titling of land and its management and provide dispute resolution mechanisms that ensure that local communities have access to the legal tools they need to challenge corrupt or nontransparent land titling and land use decisions. We are also supporting the transparent administration of land cadaster data, strengthening courts that deal with land disputes, and increasing access to information for citizens.

Internationally, regional human rights bodies, such as the African Commission on Human and Peoples’ Rights and the Inter-American Court of Human Rights, and national supreme courts are re-examining prior cases of disposition of land and resource rights and returning them to the rightful community and individual owners. In Kenya, for example, ACHPR ruled in favor of immediate retribution to the indigenous Endorois who had been displaced from their ancestral lands more than 40 years ago. In India, the Supreme Court recently ruled in favor of local landholders that their ownership extends to the subsurface and that they are entitled to direct benefits from mineral extraction.

While international efforts have increased in recent years, we are still far away from the legal and political recognition that is needed to place local land rights squarely on the development agenda. Major multilateral institutions still undermine transparency by bypassing local land rights in favor of lending to national governments; diplomacy and development are not united in an approach to local land and resource ownership; and principles are voluntary without effective means of domestic enforcement.

With increasing land displacement due to industrial agriculture and biofuel schemes and the coming resource boom in many developing countries, now is a critical time to re-examine and strengthen policies and programs that emphasize transparency through local control.

Reverse the Curse: How Can Oil Help the Poor?

A version of this article originally appeared in the January/Feburary 2014 volume of Foreign Affairs. Read Diamond and Mosbacher’s response.

Larry Diamond and Jack Mosbacher (“Petroleum to the People,” Foreign Affairs, September/October 2013) rightly observe that the coming oil boom in Africa is, paradoxically, a frightening prospect for the continent’s poor and marginalized. If the so-called resource curse holds, this new surge of easy money will indeed “poison the prospects for development,” fueling corruption, inflation, and authoritarian regimes. The authors’ proposed solution, however, falls short. Diamond and Mosbacher suggest that governments could reverse the curse by distributing oil revenues directly to the people as taxable income. But doing so would not address the fundamental issue that gives rise to the resource curse in the first place: weak land rights.

The resource curse described by Diamond and Mosbacher is rooted in legal frameworks established primarily for colonial-era exploitation that vest all natural resources as property of the state. These frameworks were continued upon independence. This means that in most developing countries individual or community property rights only cover the topsoil and structures, but do not extend to sub-surface minerals, petroleum, water, air, trees, carbon, or other natural resources attached to the land. Instead, the state owns all natural resources and administers and profits from their extraction through a licensing system. This state monopoly produces the ill consequences associated with intense rent seeking. Governments grant companies access to explore for and extract oil or other resources. Local people who live on this land, and have traditional claims to it, rarely participate in contract negotiations and are often displaced so investors have access to the resources. In many instances the state invokes eminent domain and forcefully removes residents. This is not surprising: when the state owns all resources attached to the land the contrast in bargaining power is severe – the government and companies on one side, individual property owners and communities on the other. To further complicate matters for the poor, especially in Africa, most property ownership is informal and/or customary – based on traditional claims – so communities lack official title records or deeds to support these claims and ensure adequate compensation.

This contrasts markedly with the legal framework of developed countries, particularly the US, which have harnessed natural resource wealth and still managed to create strong economies, large-middle classes, and democratic societies. In these countries natural resources are a blessing, not a curse. In the US, resource rights are attached to the land. In most states, landowners have rights to the oil, coal, and natural gas below their land, the timber on, and the water that flows through, and can lease those rights to a third party. In no case does the government automatically own the resources below the surface. Instead, the state gains revenue from taxing the income of those benefiting, both landowner and company. Think of the basic premise of the TV series the Beverly Hillbillies – Jedd Clampett accidently shoots the ground and finds oil. He instantly gets rich and moves his family to Beverly Hills. This fairy tale is incomprehensible to citizens in the developing world.

The US system differs from some developed countries where the state owns all natural resources, such as Norway, Australia and Canada. But the context of extraction in these states is far different than what is seen in developing countries. Minerals and oil are either offshore or in sparsely inhabited interiors. They also are complementary revenue streams and represent a more recent addition to already sound governance and economic systems. The US experience offers a better lesson to developing countries, as economies and local democratic institutions were effectively developed in conjunction with intense extractive activities and in areas with major population centers. This equity in ownership and distribution of natural assets across a society, summarized crudely (pun intended) by the Beverly Hillbillies, is the mechanism that creates incentives for productive use and is the foundation of market economies and democratic societies.

While the grand solution proposed by Diamond and Mosbacher is innovative and better than the status quo, it would create other problems and further undercut the principle that resources should be tied to land (it has more relevance in the case of offshore oil extraction, which is of particular importance in the Gulf of Guinea). To start, extraction creates localized problems. The destruction of land and environmental pollution has a greater adverse effect on communities that live nearby. In Uganda, these are the minority Banyoro, Batwa, Bagungu and other tribes that depend on the resources around Lake Albert and are being pushed off their land. In South Sudan it is the Nuer and Shilluk tribes whose seasonal grazing land is displaced by oil fields. In Nigeria, it is the communities in the Niger River Delta whose livelihoods are destroyed by oil spills from nearby offshore platforms. In Peru and Colombia, Andean indigenous and local people that live above vast gold, copper, and silver deposits have been displaced for decades. Creating secure resource rights that tie both risks and benefits to land ownership allows rights’ holders to weigh the trade offs involved in developing resources and transact according to their utility. The state then assumes its more natural role as regulator. It is the most effective and efficient way to ensure that those occupying land are not disproportionately harmed. On the other hand, a cash-for-petroleum scheme would provide equal amounts of income to all people, whether affected by the extraction or not. And any attempt to provide more cash to those adversely affected would be virtually impossible without first establishing who has rights to what resources.

Tying resources to land is not an easy objective. To begin with, arable, surface land is already under increasing pressure from global land grabs for industrial farming and biofuels, without considering sub-surface resources. Vast swaths of countries such as Cambodia, Madagascar, and Sudan are already claimed by the state (often as a vestige of colonial-era land grabs), and leased to investors with no regard for those that have lived and used the land for generations. Strengthening land tenure for individuals and communities that use and live on land without formal recognition is the first step. This fight is being waged in communities around the world, including the growing attempt to recognize customary, communally owned land as having equal rights as individual, fee simple. Institutions like the World Bank, UN, and international aid agencies need to develop clear policies on land governance (the UN Voluntary Principles on Land Governance is a start), heighten the pressure on national governments to increase local ownership of land, and link trade agreements, aid budgets and loans to criteria for the recognition and protection of land rights. After this is accomplished, or even once the security of local ownership improves, countries should embark on a measured transition from state ownership to devolved land-based resource rights, ensuring that sufficient checks, corruption monitoring tools, and dispute resolution mechanisms (i.e., fair and efficient courts) exist. In Africa, Afghanistan, Indonesia and many other places, this also means recognizing customary or traditional land ownership systems and enshrining these communal arrangements in law with clear borders and rights. Support would also need to be provided to individuals and communities to negotiate beneficial concessions with private investors.

There are powerful examples of communities that are currently managing valuable natural resources – from forests to wildlife to fisheries – the Alaska’s Native Corporations, for example, or Namibia’s community-based natural resource conservancies. Empowering locals to manage resources, generate revenue, and contribute to the tax base would reverse the resource curse while avoiding the pitfalls of Diamond and Mosbacher’s cash-for-petroleum scheme. Doing so would address the cause of the curse, not merely its symptoms.

by Tiernan Mennen and Karol Boudreaux.

Haki is reversing the curse one community at a time through a global network of local NGOs. We help communities and individuals map their legal claims to land, provide legal representation to people that have had their land expropriated, and advocate for legal reforms that accord stronger devolved land rights and greater control of natural resources by communities.

Creating an International Indigenous Right to Land

Vestiges of colonial land regimes still plague both developing and industrialized societies and further marginalize vulnerable, indigenous populations worldwide. Recent progressive jurisprudence – in particular the Endorois case out of Kenya – has begun to change this landscape. In it’s latest report Hakí and authors Tiernan Mennen and Cynthia Morel further advance the movement for greater indigenous and native rights to land by synthesizing historical and modern developments in common law and international legal systems that definitively establish native title rights. It contextualizes the history of dispossession experienced by indigenous peoples and the constitutional and legal reforms needed to change both law and practice. Despite developments over the last decades native title recognition is far from universal. Many countries lag behind in recognition and in the process condone exploitative colonial legacies. This new report argues for an immediate increased emphasis on implementing reforms that respond to modern jurisprudence and the growing international jus cogens on indigenous rights to land.

Land Reform Revisited

As global pressure on land rises and its distribution becomes more equal, there is a growing call for greater attention to the role land distribution plays in transforming feudal societies into egalitarian, democratic nations. Many countries are now revisiting land rights and distribution through both large-scale and micro, market-driven policies. Despite a tumultuous past of failed agrarian reform, many Latin American governments are once again promoting redistributive policies such as land reform. At the same time analyses of the reasons for the resounding economic success of East Asian countries over the past twenty years have identified land reform as a major tool for restructuring societies and stimulating long-term economic growth. In its latest white paper, the Hakí Network analyzes and contrasts the past, divergent land reform movements in Asia and Latin America with an eye toward informing contemporary reforms and strengthening land rights for the poor and marginalized. The paper identifies five core elements that have distinguished success from failure – 1) inclusive policies, 2) discrete land ownership/rights, 3) clear, marketable title to land, 4) democratic redistribution mechanisms and 5) post-distribution extension support.

Land Reform Revisited_Haki White Paper Series 

Accelerating Achievement of the MDGs through Rights

A robust array of rights – political, civil, economic, and social – are the foundation from which to achieve the Millennium Development Goals (MDGs). This basic, yet fundamental concept was largely ignored when the MDGs were first crafted in 2000. Twelve years later, as we approach the 2015 end date for the MDGs with disappointing progress, the Hakí Network, UN, and various global actors are re-examining the MDGs. The role of rights, rule of law and equitable development feature prominently in discussions toward a new set of MDGs.

This past month, Hakí Network founder and CEO Tiernan Mennen contributed to these discussions through two chapters in the UNDP Asia Region publication – Accelerating Achievement of MDGs by Ways and Means of Economic and Social Rights. The publication was launched at a conference in Vietnam on August 27-29.

The Hakí Network strives to ensure equitable development for all by monitoring and integrating human rights-based approaches grounded in national legal frameworks into wider development efforts – contributing, in our own modest way, to the achievement of the MDGs.

Accelerating Achievement of the Millennium Development Goals through Social and Economic Rights

Excerpts from the publication:
From a human rights perspective, the MDG agenda has often been criticized for overemphasizing aggregate country-level analysis that mask sub national and social disparities, and often disregard serious human rights concerns. The efforts to find inclusive and sustainable access to the benefits of human development for all must continue to be based on a comprehensive and pro-active understanding of human rights concern.

This publication aims to offer a number of concrete suggestions to the development practitioner, whether in government, civil society or with an international organization. The task of the contributors was to go beyond the often normative, general and high-minded approach taken by human rights advocates when addressing development practitioners often perceived as abstract lecturing. Instead, the authors wish to suggest innovative and practical ways and means to make a difference in terms of the MDGs and other development goals by promoting changes in the constitutional or legislative framework, legal empowerment, introducing affirmative action, applying a human development approach to social protection, disaggregating data and identifying, for instance, the special needs of indigenous communities, mobilizing public action through focused advocacy or campaigns, or leveraging the powers of the judiciary wherever possible in order to overcome “bottlenecks” that may hold up progress on human development indicators.

Resource rights – the magic bullet for development?

I’ve spent the last three weeks in rural South Sudan documenting community ownership and customary use of land. South Sudan is the world’s newest country, but it seems destined to fall prey to an old trap. As with most developing countries, natural resources are owned and controlled by the State. Individual or community ownership of assets such as timber, minerals, oil and even water is weak or nonexistent.

State ownership of subterranean and other natural resources is a vestige of colonial rule that has become a mainstay in most developing countries. It’s a vestige that ensured continued extraction and provision to former colonial powers and companies. It now concentrates wealth in a few ruling elite, creates democratic deficits, and breeds corruption. In sum it is the driving force behind the infamous “natural resource curse” that has affected countries around the world – from Congo to Indonesia to Peru.

Throughout my many years of work and living on all continents I have seen this scenario repeated over and over again. In Peru, Andean communities that had lived in villages and grazed their livestock on fields for centuries are routinely displaced to make room for gold and copper mines. Because they have no right to the minerals under their feet they do not benefit from its extraction. In Papua, Indonesia, the government and foreign mining companies are committing genocide to access the rich gas and natural resources to which the local people, under Indonesian law have no legal claim. In Honduras, local farmers don’t even own the trees on their land. Now in South Sudan you can literally see the State (and the well-connected) grow daily off its substantial oil revenue with little benefit actually reaching the people that have been displaced by oil fields, pipelines, and environmental destruction.

Many developed countries have benefitted from natural resources in an equal and democratic fashion by vesting, enforcing and regulating local property ownership to extend below and above the land. Those countries that are afflicted by the natural resource curse almost universally have a concession system where the State owns all natural resources, even those connected to private land, and contracts with private (or parastatal) companies for their extraction. The revenue goes straight to government coffers where it becomes the primary source of government funds… and corruption. Its responsible use is virtually impossible to track, while its prominence in the national budget creates disincentives for governments to develop other resource streams that require greater accountability. Elections become fights for control over this unregulated revenue stream and the chance to enrich, rather than good governance.

The solution is simple. Ownership and rights to resources, particularly subterranean, should be strengthened and vested in communities and individuals. The right to property, enshrined in the Universal Declaration of Human Rights should be realized to its full potential. Private resource extraction companies should have to negotiate leases with the landowners above the resources (such as is done with coal, gas and oil in the US). The government’s role is to regulate this process and ensure fair contracts and environmental feasibility. The government then taxes extraction revenue from both company and landowner rather than having direct access to profits, thus encouraging democratic dialogue over the degree and use of tax revenue.

But behind this simple solution lies a dirty secret. Governments – both developed and developing – as well as multinational companies favor this system. It ensures the majority of the world’s assets and resources bypass the majority of the people in order to enrich the rich. It is also the primary reason undemocratic governments thrive. It is how multinational companies strike sweetheart deals with governments to operate in their countries for great gain.

The stakes are increasing as other resources, such as land and water, are under greater pressure by high commodity prices, global warming and population growth. A lack of secure property rights has opened the door for massive land grabbing by foreign governments and companies working in cohort with national governments. (The Oakland Institute’s series on land grabbing in Africa is disturbing)

The world can achieve equitable and sustainable development that can lift billions out of poverty and from under the siege of conflict. But the solutions are tough and require a collective resolve. The Haki Network is starting a new Resource Rights Program to help build this resolve. Through our global network we will conduct research, heighten engagement and spur collective effort to ensure community ownership and control over natural resources. We will be partnering with local organizations and international advocacy groups to challenge government expropriation of resources and enforce the universal right to property. Join us for updates on how you can be involved. 

Strengthening Access to Justice in Iraq

Justice is a nebulous reality in Iraq. Since the end of the war and throughout reconstruction the international community has been helping Iraq rebuild and develop effective and responsive democratic institutions. Hakí has been a partner in these efforts.

There are currently approximately one million widows, another million divorced women, four million orphans, two million refugees and 2.8 million internally displaced persons in Iraq. Their needs are overwhelming – to reclaim homes that are occupied by others, to secure the meager government benefits that allow them to feed themselves and their children, to find jobs or sources of income in a society where certain groups are advantaged at the expense of others, to be safe from physical violence in the home, on the street and in the workplace, to name just a few (Source: USAID 2009 Rule of Law Sector Assessment).

Iraq’s legal system has weak access points that frustrate justice for vulnerable populations and fails to translate rights on paper into material remedies. Vulnerable populations, such as widows and IDPs lack knowledge on their basic rights and entitlements; and there is an inadequate supply of capable legal service providers and institutions to help vulnerable citizens maneuver through the legal system to realize their rights.

Hakí was recently contracted to evaluate and propose recommendations for improving USAID programming on access to justice in Iraq. We reviewed a unique civil society-driven justice and legal aid program that has provided access to tens of thousands of vulnerable Iraqis. Despite overall progress and a concerted effort by civil society, the Government of Iraq, and international partners such as USAID, there are substantial improvements that can be made and a number of innovative solutions to address stubborn challenges.

Hakí provided 10 primary recommendations for improving access to justice for vulnerable populations:

1. To strengthen both the sustainability of CSO legal aid models and increase the effectiveness of advocacy, donors should help develop a national network of legal aid CSOs, law school clinics, and legal associations. Such networks have proven in many contexts to substantially increase the availability and quality of legal aid for vulnerable populations, by promoting standards, referring cases to specialized organizations, and playing an essential role in advocacy for legal and policy reform. It is important that legal associations or Bars, such as Iraq Bar Association and Kurdistan Bar Association, are incorporated into this network to ensure buy-in by the legal profession, increase potential for pro bono requirements, and enhance advocacy. The network should be convened regularly and an online forum should be created to bring solidarity across the CSO members.

2. Donor-funded projects should help CSOs develop and refine tools such as a model case management system and database, and establish standards that can be adopted by all legal aid network members. Developing standard case management and M&E tools across all legal aid service providers is an essential step in creating the standardized approach and reporting requirements that will be required by any publicly-funded legal aid scheme. CSOs should be accustomed to reporting on their activities at a high-level that reinforces management goals, but that also addresses the information needs of donors.

3. Donors should support both established CSOs and identify and invest in new, promising CSOs that will target yet-unreached populations, have identified new, innovative approaches, or will tackle difficult issues not being addressed by existing CSOs. CSOs should be nurtured to ensure their legitimacy and their ability to sustain activities post-donor assistance. Mentor relationships between established CSOs and new, promising CSOs should be developed as part of its network and capacity-building efforts.

4. Donors should help CSO networks to advocate for greater support by the GOI. A sustainable system of government funding of legal aid should be explored and developed, borrowing from successful models in other countries. The system should create a legal services fund and independent legal aid board that oversees and coordinates grants to legal aid organizations to provide legal services to vulnerable populations. Under this system CSO clinics would have to follow set standards and be monitored by the government while maintaining autonomy. Donors could consider contributing to an initial fund, along with other donors and GOI, that would create an endowment of sorts to support the clinic system.

5. Donors should explore and consider expanding support to CSO legal aid services into other critical social justice issues that equally affect vulnerable populations, such as labor issues, housing and land rights. Data indicates that most cases currently received by legal aid clinics are focused on obtaining government benefits (32%) and accessing legal identity documents (17%). Alimony and divorce issues are the next most frequent number of cases. However, survey data on vulnerable populations indicates a range of other legal issues and disputes as extremely important to vulnerable populations. Housing (3%) and land disputes (3%) were indicated to be as important as crime (3%) and similar to poverty (5%) and public health (5%). Land and housing in particular are a critical issue for IDPs, returning refugees/IDPs and other vulnerable groups in post-conflict countries around the world.

6. Donors should consider moving away from typical awareness-raising workshops and instead consider awareness-raising activities that directly engage vulnerable populations in public campaigns, radio programs, and advocacy with the government.

7. Donor-funded projects should do more to develop skills for vulnerable populations that encourage greater participation and empowerment by the vulnerable to realize their rights. Donors should consider supporting partner CSOs to adopt community paralegal approaches to extend both legal awareness/empowerment and provision of legal aid to more communities. Projects should provide trainings to CSOs on how to develop and implement paralegal programs that ensure quality and professional standards while enhancing the ability of CSO lawyers to reach more vulnerable populations.

8. Support should be provided to the IBA and KBA and government decision-makers to finalize the draft law that will require pro bono service requirements for lawyers and assist with implementation of the law by helping draft policies that outline what qualifies as “pro bono” with a strong link to lawyers providing legal representation assistance for clients of CSO-run legal clinics.

9. Similarly, donors need to increase support to and establish more functioning law schools clinics. Law school clinics can be an important source of legal assistance for cases. Furthermore, many law school students that are involved with clinics during their studies will continue to work post-graduation, or will stay involved through pro bono work and/or advocacy to support clinics. Donors should explore with the IBA and GOI the creation of an educational requirement for law students to serve a practicum in clinics (or other public interest requirement) before being licensed to practice.

10. Donors should work with GOI counterparts to promote a more conducive operating environment for legal service CSOs. This includes increasing recognition by GOI institutions such as the Ministry of Human Rights, NGO Directorate, and Council of Ministers of the invaluable service these CSOs provide to vulnerable populations. Donor-funded projects have a role to play in advocating with the GOI on behalf of its partners on the importance of creating and maintaining a space for legal aid CSOs to operate and of the important public function they play.

Combatting Violence Against Women in the Customary Courts of South Sudan

Violence against women is an epidemic in conflict-affected societies worldwide; impunity for its perpetrators a black eye for domestic and international justice. Protection and prosecution is, however, complicated. Violence is often cloaked by ignorance and disputes settled according to restorative customary practices. In the attached study Haki takes a look inside the administration of justice for gender-based violence cases in the customary courts of South Sudan.

Combatting GBV in South Sudan_Haki

Gender-based violence is a priority for Haki. We work with local partners around the world to harness legal tools that empower communities to fight violence against women.

Special thanks to Edmund Yakani of Community Empowerment for Progress Organization (CEPO) in South Sudan for his tremendous leadership during this study.

Support Labor and Women’s Rights in Bangladesh

The Haki Network is launching a new campaign to highlight the inspiring human rights and legal empowerment work of our members around the world.

This month we are highlighting the amazing efforts of BLAST (Bangladesh Legal Aid and Services Trust) to bring justice to women and children victims of violence and inhumane working conditions. BLAST has been on the forefront of the fight to bring garment factory owners to account for their abuses of human rights in Bangladesh. They have also led a groundswell in labor rights education and supporting women and girls caught in the web of rights abusers throughout the country.

Through Haki’s new relationship with Global Giving, we are now able to help connect BLAST and other network members directly to fundraising opportunities in the U.S. and elsewhere. Please visit the BLAST entry on Global Giving, http://www.globalgiving.org/projects/support-women-victims-of-violence-in-bangladesh/ to read more and support the fight for justice in Bangladesh.

The Haki Network is a global coalition of local civil society organizations fighting for justice and development. Each month Haki will be featuring initiatives of our members on Global Giving. We encourage you to visit and support our work. 100% of all donations go directly to Haki members.

Gender justice: The entry point to reforming the post 2015 development agenda

By Faustina Pereira
Director, Human Rights and Legal Aid Services, BRAC

There are important evidence-based studies that have shown, not least through the work of BRAC and Grameen Bank in Bangladesh, that by investing in and focusing on women as the centre of development interventions we achieve multi-layered levels of progress which rapidly spread from the household to the community and to the State level. These are also the interventions which have the most long lasting impact. When a woman is helped to recognize her own agency, and when her own justice seeking behavior increases, the behavior of the whole household changes. When we analyze Bangladesh’s achievements of being “on-track” in several key MDG targets, we see that placing women at the centre of an integrated multi-sectoral plan has worked best. For example, when analyzing Bangladesh’s remarkable achievement in case of maternal mortality reduction under the MDG framework, we see that investment a decade ago on retention of girl children in secondary schools has paid off.

Worldwide as well, we are able to tag national progress with the closing of the gender gap in girls’ enrolment in primary education and increase in women’s participation in the labor market. Now what is required is to go beyond meeting women’s basic needs to amplifying their voices as rights-holders to those development interventions.

Women’s rights advocates have been claiming for over a decade now the centrality of gender equality to any development framework. It is crucial that this message of approaching the post 2015 MDG formulations from a gender lens is understood adequately. Overwhelming evidence already tells us that despite decades of development interventions, it is women who continue to be the majority of the world’s poor. There is also evidence to show that the greatest barrier to progress on development goals has been gender inequality. The critical link between women’s empowerment and their equal access to education, work, health care and decision making to development outcomes is already well established. Such evidence and ground realities should be the driving force behind the framing of global development goals.

Justice, equality and empowerment: Issues that go beyond “smart” indicators … Read more here

Global Land Grab Brings Significant Risk to Investors As Communities Respond to Economic Harm, Human Rights Abuses

The Rights and Resources Initiative annual review for 2012-2013 was released recently and highlights a number of evolving trends in resource tenure that threaten to disempower communities and create inequitable development.

http://www.rightsandresources.org/pages.php?id=972

Land conflicts continue to wreak havoc on economic development and human rights around the globe, threatening both the financial health of investors as well as the livelihoods of those who live on the land, according to two reports released today.

“Landowners or Laborers: What Choice Will Developing Countries Make?”, a new report produced by the Rights and Resources Initiative (RRI), highlights the key choice facing developing countries in 2013. The choice confronting these nations is whether to embrace a more sustainable development path built on inclusiveness and respect for the rights of all their citizens, or instead to opt for a short-cut, handing out their people’s lands and forests to industrial investors, hoping for faster-paced growth.

“It is unfortunate to see national governments still embracing failed development models, especially when the evidence is so overwhelming,” said Andy White, coordinator of RRI. “In this equation, political stability, democracy and long-term economic gain is often sacrificed for short- term cash.” “Rarely have local communities—and ultimately their national governments—prospered through this development model,” he added. “It’s even more astounding given that investors often fail to prosper as well. This model proved unsustainable in 2012, nowhere more apparent than in Liberia. And now the conflict in Kachin shows that Myanmar could be the next country to fail with this approach.”

“The Financial Risks of Insecure Land Tenure: An Investment View”, a report produced by The Munden Project., examined a number of high-profile land conflicts involving corporate entities around the world. Companies that ignore the issue of land tenure, the report concluded, expose themselves to substantial, and in some cases, extreme risks, whether their investments are in infrastructure, mining, agriculture or forestry. Companies that ignore the issue of land tenure, the report concluded, expose themselves to substantial, and in some cases, extreme risks, whether their investments are in infrastructure, mining, agriculture or forestry.
In examining financial risk, the report detailed five case studies around the world:
• Orissa, India, where a failed venture by the metals and mining firm Vedanta resulted in a negative financial outlook from credit ratings agencies including Standard and Poor’s. The company’s actions have also been connected to an upswing of the Naxalite insurgency in Eastern India.
• Futrono, Chile, where a hydropower project failed when the energy company SN Power didn’t consult with indigenous communities and tried to proceed without consent. The company eventually abandoned its investment and wrote off US$23 million in losses.
• Zanzibar, Tanzania, where the biofuels importer SEKAB strong-armed communities while attempting to purchase 400,000 hectares for a massive plantation with severe environmental impacts. When these efforts were revealed, SEKAB’s attempt to obtain additional credit was denied and the company was forced to sell off assets at a loss of over US$20 million.
• Isiboro Sécure National Park and Indigenous Territory (TIPNIS), Bolivia, which would have been bisected by a major road project planned by the national government. The local communities were never consulted on the project, however, and the national protests that resulted delayed and ultimately sidelined construction. BNDES, a Brazilian development bank, pledged US$332 million for the project but ultimately retracted the grant; Bolivia’s relationship with Brazil suffered as well.
• Grand Cape Mount, Liberia, where the world’s largest palm oil producer, Sime Darby, planned to develop 220,000 hectares into oil palm and rubber plantations after signing a 63-year concession with the national government. Because of inadequate community consultation and compensation, operations have been repeatedly disrupted by tenure disputes.

“So many times in these land deals we see that subsistence farmers are converted into laborers who earn wages below subsistence levels,” added White. “This is not economic progress; some level of conflict becomes inevitable and investments are then halted, retracted or lost.”

RRI_Landowners or Laborers

RRI_Financial Risks of Insecure Tenure

New litigation forum for securing indigenous title to land

The Haki Network is launching a new litigation forum to bring action to our recent call for universal implementation of the Endorois decision of the African Commission on Human and Peoples’ Rights. The Endorois decision is the latest step in an international movement to restore land rights to indigenous and native peoples around the world. The new forum corresponds with the recent publication by Haki members Cynthia Morel and Tiernan Mennen, “From M’Intosh to Endorois: Creation of an International Indigenous Right to Land”, which calls for national policy and legal reform, and when necessary, litigation to recognize traditional land use and rights.
M’Intosh to Endorois: Creation of an International Indigenous Right to Land

Haki Network members are invited to the new forum to discuss potential strategies and identify partners in litigation.

Why Nations Fail – linking justice to development

I think what I’ve found most heartening about “Why Nations Fail: the Origins of Power, Prosperity and Poverty” (http://whynationsfail.com/) is that it is written by two economists. Daren Acemoglu and James Robinson provide a powerful historical argument that economic growth and development is not a product of economic know-how but the result of responsive institutions that ensure policy decisions benefits the economic interests of a diverse swath of citizens. In short: justice creates development, not the other way around.

This is the reason the Haki Network was created – to provide international support to local voices to take a leading role in promoting good and just governance, in turn promoting development and fighting poverty. Too often we have seen good development projects frustrated by elite capture or, worse, used as a tool to further entrench existing power dynamics. As Acemoglu and Robinson deftly document, development is a process of constructive destruction that often threatens the power of an established few, but benefits the vast majority. This process cannot be realized without broader democratic participation and the legal empowerment of communities. 

Investment-related Conflict, Contested Rights, and the Power of Information in South Sudan

By David Deng,

I’ve worked in South Sudan for the past few years on several projects relating to land rights. Most recently, my work has touched on the surge in land-based investment after the 2005 peace agreement, which brought to an end the 22-year civil war between north and south in Sudan.

INVESTMENT AND CONFLICT

The first issue that I’d like to touch on is the complex relationship between investment and conflict in resource-rich states. I think it is fairly clear that poorly planned investments can contribute to conflict, particularly in fragile, post-conflict states; but what is perhaps a little less obvious is how conflict can actually serve to attract certain types of investment.

Let me explain. Struggles over land and natural resources were among the root causes of the civil war in South Sudan. Foreign investments during this period often contributed to the violence. Oil companies colluded with the government in Khartoum to forcibly displace local populations from oil producing areas, in order to make the land available for oil exploration. Armed groups in South Sudan used local monopolies of violence to control cross-border trade in precious woods.

And in the Nuba Mountains along the border between north and south, where today, we hear reports of mass killings and hundreds of thousands of people at risk of conflict induced-famine, the government expropriated community lands and gave them to foreign and domestic elites in order to establish large-scale mechanized farms. The disregard that Khartoum showed for their community lands caused many Nuba to join the liberation movement in the south. What followed was a long and costly civil war that eventually resulted in the secession of South Sudan.

But with its newfound independence, South Sudan finds itself in a harsh new world. It has a population of only 8 or 9 million, spread across a land area more than twice the size of the UK, considerable supplies of oil and minerals, fertile land and water; all this makes South Sudan an attractive prize in a resource-strapped world.

And there are plenty of investors out there that are more than willing to take a calculated risk when the possibility is there for a quick return. According to a recent study that I was involved with, in just four years, from the beginning of 2007 to the end of 2010, private interests sought or secured lease rights to more than 8 percent of the country’s total land area.

Here we have a country that is probably at the most unpredictable time in its entire history, faced with a very real possibility of a return to war, with a government that is just getting on its feet, and it still manages to attract considerable amounts of interest from foreign investors.

So not only can investment cause conflict, but conflict can also attract investment, as opportunistic companies come to take advantage of power vacuums, and in the case of South Sudan, a massive transfer of wealth to a bureaucratically weak government.

CONTESTED NATURE OF RIGHTS

My second point is an observation about the nature of rights. It has become increasingly apparent to me that meaningful rights can only be born through struggle. Rights are not inert principles granted through legislation or some constitutional promise; they are born from contests between specific people, at a specific place, and a specific time. These struggles give birth to norms that are tailored to address particular circumstances. Eventually these norms coalesce into clearly defined rights.

Let me illustrate with a couple examples. The right of self-determination for South Sudan was not a gift granted by a cornered opponent in Khartoum, or an act of generosity from global superpowers; it was a right demanded by virtue of a long and brutal civil war. As the late Dr. John Garang, leader of the liberation movement, explained: “The right of self-determination by its very nature must be determined by people for themselves.”

Or if we look at the struggles over land in South Sudan during the war. These struggles gave rise to a popular sentiment in favor of community land rights, captured in a wartime slogan, ‘land belongs to the community’, which people have used to great effect to resist unwanted government development projects and private investments in the postwar period. Community land ownership was later formalized in the Land Act of 2009, which put customary land tenure on equal footing with other forms of land ownership.

Despite the progressive laws, wartime economies die hard in a place like South Sudan, and in practice, communities continue to be marginalized in decision-making about community lands; nonetheless, the strides that they have made thus far are evidence of the support that exists for community land ownership among many groups in South Sudan.

PUSHBACK

My final point relates to the pushback from affected individuals and groups at the local level. We’re still at an early stage of agricultural development in South Sudan and few projects are having tangible impacts yet, but we have already seen several examples of communities successfully opposing investments that were negotiated without their consent.

Allow me illustrate with another story. In the month’s preceding South Sudan’s independence, I was conducting research on land investments for a CA-based think tank called the Oakland Institute. I had heard of a big 10 thousand square kilometer project involving an American company in a place called Mukaya. The investment had first been uncovered by local papers in 2008, and by 2011 it had been picked up by several international media outlets. I decided to take a trip out there to talk with local leaders and find out more.

To my astonishment, however, despite the considerable media attention that the project had received, the people residing in the area had never heard of it. When I showed them a copy of the investment agreement they reacted with shock, asking if this meant that they would be forced off their ancestral homelands. I tried to tell them that it seemed to me like a rather implausible investment, but when I left I was a bit concerned about what I had done. Did I properly manage their concerns? What if they turn on the people who signed the deal?

Then, about a month later, a delegation of 12 community leaders came from Mukaya to meet with the president and the state governor who authorized the lease. After hearing their position, the president and the governor publicly assured the community that no investment would proceed without their consent.

It was a partial victory to be sure. Due to the lack of transparency associated with these things, no one knows the real status of the agreement. But what struck me was that all it took was information, and the community was able to quickly and efficiently mobilize themselves and force the government to give in to their demands.

So the free flow of information, I guess we could call it transparency, is of paramount importance in these resource-based struggles. When people’s rights are being ignored, the most effective solution is to provide them with information and fast; people are best positioned to protect their own rights, and that’s why any advocacy initiative that does not place the people who stand to be affected most at the center, is usually doomed to fail.

The three issues that I’ve touched on —investment-related conflict, the contested nature of rights, and the power of information—are just a few of the issues that characterize this emerging global struggle over land and natural resources. For me the key point is that the struggle exists. The mere fact that people are demonstrating the power to resist means that new rights are being born. These struggles are a sign of health, and at least from my little corner of the world in South Sudan, I am confident in the ability of people who have rights and know it, to have their voice heard.

David K. Deng is Research Director for the South Sudan Law Society. These observations were originally presented at an event entitled,“Turning Point: What future for people and resources? A panel on the trends shaping rural lands and lives,” on February 1, 2012 at The Royal Society of London.

Land Conflict in Northern Uganda

Disturbing updates on the peace and rebuilding process in Northern Uganda. Customary land tenure systems weakened by the conflict are under even more pressure now with foreign and internal speculation. There is not a simple, formalized solution to this, but a need to employ an iterative process that informs and involves local citizens, working within the customary system to ensure rights.

Also, a good article from LPDI about land grabbing in Northern Uganda.
Land Grabbing in Uganda_Mabikke

 

UGANDA: Land disputes threaten northern peace

http://www.irinnews.org/Report/95322/UGANDA-Land-disputes-threaten-northern-peace

“Land is the only asset remaining for us”
GULU, 19 April 2012 (IRIN) – Inter-communal disputes over land and the allocation of land to private investors for cultivation, could threaten peace in parts of northern Uganda, warn officials.

So far in 2012, at least five people have been killed in violent land disputes in the villages of Lakang, Apar and Pabbo in the northern district of Amuru. Two more people were killed, in late 2011, in neighbouring Nwoya District.

At present, the Acholi and Langi communities in Pader District, also in the north, are in dispute over ancestral land in Pader‘s Acwinyo and Lamincwida villages. While the two communities are not armed, there has been traditional animosity between them.

Other reported land disputes in the region involve:

The Madi and Acholi communities in Adjumani and Amuru districts. Both claim ownership of the border areas of Apar and Joka in Pabbo sub-county and Alegu and Bibia in Atiak sub-county (the sub-counties of Pabbo and Atiak are in Amuru District);

The Acholi communities in Labala and Palwong in Pabbo sub-county (inter-clan land disputes);

The Alur of Nebbi District and the Acholi of Nwoya District over ownership of the areas of Got Opwoyo and Nyamokino;

The Langi of Oyam District and the Acholi of Nwoya District over the Lii area in Koch Goma sub-county, Nwoya District.

The resettlement of internally displaced persons (IDPs) in the Agoro, Lokung and Madi-Opei sub-counties of Lamwo District has also been hampered by land disputes.

These communities are part of an estimated 1.8 million people in northern Uganda who were forced into protected villages by the army; they began returning home in 2006 when the rebel Lord’s Resistance Army (LRA) moved into neighbouring countries.

But some of the returnees found their land, which they had presumed was lying idle, occupied by strangers, family members with no rights to the land, and people who left the protected villages before those with rights to the land.

With few if any possessions to start a new life, land has become a very prized and fiercely defended possession for the returnees, according to an April 2011 report entitled Escalating Land Grabbing In Post-conflict Regions of Northern Uganda: A Need for Strengthening Good Land Governance in Acholi Region.
Acholi Region comprises the districts of Agago, Amuru, Gulu, Kitgum, Lamwo, Nwoya and Pader.

Uncertain boundary demarcations such as trees and stone markers, which may have been lost or shifted over the years of conflict, have exacerbated land disputes, as has the presence of a youthful regional population with an estimated median age of 14 for females and 13 for males, the report said.

“Most of the elders who knew about the land died in IDP camps. The remaining ones have become liars. They can’t show the boundaries,” Francis Okot, a resident of Otwee village in Amuru District, told IRIN.

Land-tenure system

Land in northern Uganda is held under customary tenure. The lack of official land ownership documents is one of the reasons people fear losing their land.

The government is currently issuing customary ownership certificates in parts of the region; but this is drawing mixed reactions.

“It might go a long way to address the land conflicts as long as it’s properly done. It could be a mitigating measure to the land issue in the region,” said Howard Ayo, a Kitgum resident.

According to Godfrey Akena, Pader District Council chairperson, “the issuance of land certificates is good but not timely… Let the government wait with their certificates until when everything is OK and people are no longer talking about land disputes.”

According to analysts, statutory and customary land laws contain ambiguities. Earlier laws, for example, gave landowners with 12 or more years occupancy legitimate rights over the land. During the civil war this allowed some powerful individuals to claim legitimate rights over some communal land.

Uganda’s National Land Policy, which was drafted following the setting up of a National Land Policy Working Group in 2011 to deliver a framework guiding land use in national development, provides for the setting up of a customary land registry to support the registration of land rights under customary tenure and to issue Certificates of Title of Customary Ownership, giving rights equal to freehold tenure.

But it is yet to pass into law. “The last draft we have in [is] as of March 2011. However, one year later, it has not been passed yet. A lot of developments that would be addressed by the policy continue to occur unguided and at a whirlwind speed,” Deo Tumusiime, Uganda Land Alliance’s communication officer, told IRIN.

“We believe that when passed into law, the policy will help to address a number of questions, some of which have led to bloodshed – questions of land inheritance, inconsistencies arising from colonial mistakes, women and land, minorities, land administration, compulsory acquisition, and lately the vice of land-grabbing…

“For a key resource like land, which is a question of life and death for many, you cannot afford to politicize it. The policy must apply to all citizens irrespective of political, religious or socio-economic background, but taking into consideration the peculiar interests of the voiceless Ugandans.”

Investors seek land

Against this background, the allocation of land in parts of northern Uganda to investors has exacerbated residents’ fears of land-grabbing. Some of the fears may be genuine while others are fuelled by politicians, analysts say.

“People… think the government wants to grab land. It’s going to be [a] hindrance to development if the land issue is not addressed,” said Betty Bigombe, Uganda’s water minister and a former negotiator with the LRA.

Bigombe warned that failure to address the land disputes could lead to “another conflict like [the one with] the LRA. People will be pitted against each other”.

Already, some politicians in Amuru are already asking residents there to resist government planned land allocation to investors for sugarcane cultivation.

“We shall mobilize our people to fight for our land. Land is the only asset remaining for us, the Acholi. We shall guard it jealously,” Gilbert Olanya, the legislator of Kilak in Amuru District, told IRIN.

Experts are recommending that a more secure land tenure system is created in northern Uganda, complementing customary tenure.

With unclear land rights among former IDPs a major source of tension, the Acholi land-grabbing report further recommends that “the two parallel legal and judicial systems [customary and state land administration] dealing with land issues in northern Uganda should be harmonized to avoid unresolved contradictions.”

“War is over, but factors remain that could threaten progress, such as economic disparity, land tenure irregularities, high levels of unemployed youth and disenfranchized population, as well as high expectations regarding peace dividends,” said Rebeca Grynspan, the UN Development Programme’s associate administrator, during a recent conference in Gulu.