Fahamu (Oxford)

22 June 2012

Africa: Land Grabs - How the Law Pushes People Off Their Land

analysis

The state as an instrument of capital interests is providing cheap and disposable labour, land, and fiscal privileges to land grabbers.

Subverting the classic vision of the private-public power relationships, some African countries are repeating the same motto that an East European newspaper used on the occasion of the visit of the German chancellor in 1999: 'We forgive the crusaders and await the investors'.[1] As pointed out by Ulrich Beck, in fact, 'in a global context where capitals are free to flow without restrictions and where competition among countries represents the rule rather than the exception, the threat is no more represented by the fact of being absorbed in the dominant paradigm, but of being left outside'. It must be of no surprise, therefore, that ideologically and economically constrained participants of a global competition for investments, which are mainly subsidised by low interest rates and financial alchemies, are currently participating in a global regulatory race to the bottom where anything is on sale, included land.

In particular, there are two different legal ways through which investors can acquire different rights over land, depending on their counterparts and on the proprietary regime of the host countries. Without making any reference to the distinction between private and public law, these two mechanisms could be called that of 'public grabbing' and 'private grabbing'. Independently from the chosen method, the current events and the historical comparison demonstrate that whether land in Africa is expropriated, declared void, or exposed to rising competition between small and commercial farmers, the fact that the regional population increased from 230 to 860 million between 1960 and 2010, that the average cultivated are amounts at 0.3 hectares per capita,[2] and that the global demand for land and production is far from refraining, make us affirm that the paradigmatic shift from small-scale farming to industrialized exploitation will inevitably impact on low income countries and the poorest and most vulnerable and marginalized segments of the populations. If that is the reality of the facts, the history of Africa shows that displacement and migrations, mainly intra-regional, represent the solution to present or perceived risks, and thus what we have to expect.

PUBLIC LAND GRABBING AS DIRECT EVICTION

Entering more into the details of the 'public grabbing', which on the basis of the available data seems to be the most diffuse,[3] the land at the center of the deal is considered by the host State as 'public or national' on the basis of its own legal order or expropriated on the basis of a declaration of 'public interest' or 'public necessity'. In both cases, sovereign states maximize their internal power in order to define the content and boundaries of their internal legal system, giving meaning to broad concepts like 'public domain' and development, or drawing a series of lines that trace a clear distinction between legal and illegal occupation, used and unused land, available and not available land, and determining who has the right to see his/her property title formalized. The way in which these sovereign actions are undertaken can lead toward very divergent paths, the two extremes of which are represented by the complete pursuit of the common good and the total subordination to the needs of the global market and of exogenous actors. What I claim hereafter is that sovereign, trapped in the prisoner dilemma and in a ideological homogenization, is exercised by several Sub-Saharan African countries in a way that unequivocally tends toward the latter extreme, completely turning its back toward legal diversity and alternative forms of development.

WHAT 'PUBLIC' AND WHAT 'INTEREST' IN THE DECLARATION OF PUBLIC INTEREST?

Taking as an example the 2012 report on villagization in Ethiopia by Human Right Watch provides the dramatic reconstruction of the ongoing process of resettlement that is taking place in the Gambella Region, and across the border between Ethiopia and Somalia, under the auspices of the Ethiopian government and its project of villagization for rural development. Undertaken with the official goals of guaranteeing to relocated populations 'access to basic socioeconomic infrastructures [...] and to bring socioeconomic & cultural transformation of the people', the Gambella plan is part of a broader program of resettlement, that concerns 1.5 million people in four regions (Gambella, Afar, Somali, and Benishangul-Gumuz), more then 100,000 of which lived or are still living in the Gambella Region. On the basis of the data presented in the report, the decision of the federal government to intrusively exercise its sovereign power over its land and population,[4] undoubtedly raises several doubts concerning the respect for national and international procedures in resettlements, the existence of the required Free, Prior, and Informed Consent (FPIC) of the local population, the pledged voluntary character of the resettlement, the effectiveness of the compensation plans, and the subordination of people's interests to the needs and wills of global investor. But, above all, it clearly demonstrates the potential of sovereignty as a legitimate coercive power over the population.

Although in the report the connection between large-scale agricultural development and land displacement is kept in the background and there is no direct connection with the 100,000 hectares of land that have already been leased by the Federal Government to Karuturi Global Ltd.,[5] the case of the Gambella Region appears as an emblematic example of a functional use of sovereign prerogatives: according to the Ethiopian national constitution, in fact, the federal state is provided with the power to expropriate and resettle people after having identified and declared the existence of a public purpose. In particular, Proclamation No. 455/2000 has codified in the federal legislation the constitutional provision that protects people from unjustified expropriation and guarantees the right to compensation.[6] More precisely, Proclamation No. 455/200558 discloses the rationale lying behind expropriation, and provides us with a clear image of how the notion of development is currently filling the empty box of public interest and giving it a meaning.

From the point of view of smallholders, public purpose represents a double-edged sword that in the past was certainly utilized by some governments in favor of local farmers and non-owners and against the rights and interests of landlords, but that is now become a legitimate tool for forced eviction informed by what certainly is a constrained, market-led and economically driven ideological and political framework of the leading elite. The Ethiopian case, together with the endless series of cases of development projects which have been undertaken over inhabited land and forced resettlement, represents, in fact, a classical example of the monopolization of 'public purpose' by the idea of 'development', and of its use in order to pursue objectives which are clearly against development as intended by international law.

According to the 2004 'Review of progress and obstacles in the promotion, implementation, operationalization, and enjoyment of the right to development' by the UN Economic and Social Council, and on the basis of article 1 and the preamble of the Declaration of the Right to Development, in fact, the right to development is defined as a right to a particular process of development in which 'all human rights and fundamental freedoms can be fully realized'.[7] Pursuing development, rather than being a mere economic process, has to enable people to realize the 'rights and freedoms set forth in the International Bill of Human Rights, in their totality as an integrated whole'.[8] Pursuing development, in other words, is not an end that legitimizes any violation and abuse, but a process that has to be treated as a right, a dialectic between state and people where all rights, i.e. economic, social and cultural, as well as civil and political, are realized together.

However, irrespective of the limits and boundaries determined by international law as a supranational obligation, States are continuously referring to 'development' as the key word to ideologically and legislatively legitimize the acceptance of large-scale investments in land that, as stated before, clearly violate the most fundamental rights of the involved population. On the other hand, international financial institutions, oblivious of the fact that, 'if one excludes the performance of China from the estimates, from 1987 to 1999 there was a rise in the number of poor from 880 million to 945 million',[9] and deaf to the critics, continue pursuing an economic-development strategy, and to play a fundamental role in financing large-scale investment in Sub-Saharan Africa, manly by 'helping attract investors and shaping policy and law that allows streamlined and lucrative contracts'.[10]

Although some remedies are some time provided in order to minimize the negative impact of forced resettlement or to obtain the free, prior and informed consent, it is also true that it is possible to count infinite cases in which rules have been violated, therefore transforming the completed resettlement from legal to illegal, and that the idea underlying the possibility of compensation is that any plot of land is the same for farmers, disregarding the evidence that the fact that some land is commercially more attractive than other means that it is more productive, and completely ignoring all the anthropological and sociological studies that have demonstrated the unique relationship between land, culture and identity. The clearest evidence is provided by the Gambella case: although the Ethiopian authorities affirm that the entire 'villagization' procedure is voluntary, entire households are moving back to their original villages, unequivocally demonstrating the fact that land is not a commodity that can be exchanged with any other available good.

By defining as 'national interest' or 'national good' land-related development projects that do not respect the idea of the right to development, that generate migration, and produce unresolvable violations of the fundamental rights of people and local communities, states abuse the rights that are conferred on them both by the international and national community. If the distinction between internal and external sovereignty is artificial, and if internal sovereignty has to be exercised in respect of international law, in fact, the use of internal discretion in order to define as 'of national interest' projects which negatively impact local people and violate international obligations even when mitigation procedures are in place, is, therefore, an abuse of sovereignty that can be condemned in the appropriate fora.

In conclusion, as recently reminded by Liza Alden Wily,[11] the current rush to land does not represent anything new for our planet, nor is the use of sovereignty and legality as an instrument to perpetuate injustices and favor private accumulation. The state as an instrument of capital interests is utilizing its prerogatives to provide the latter with cheap and disposable labor, land, and fiscal privileges. Extending what Erik Hobsbawn had already affirmed in the '50s of the last century about public interest, we can thus conclude that in many circumstances sovereign prerogatives are 'no more than the forces of profit-pursuing private enterprise' which seek 'to turn land into a commodity', 'to pass this land into the ownership of a class of men impelled by reason; i.e. enlightened self-interest and profit', and 'to transform the great mass of the rural population into freely mobile wage-workers' (1962, 184).

In a system of international and national law based on fragmentation and the maximization of national prerogatives in favor of selfish interests, the legal response can hardly succeed if it remains individual: What is needed is a network of local seeds of global resistance.

Tomaso Ferrando is a PhD Student, Sciences-Po Law School, Paris.

REFERENCES:

[1] Beck U., 2010, 'Reframing Power in the Globalized World', Organization Studies 29(05)

[2] Int'l Fund for Agric. Dev., Doc. EB 2008/94/R.2, 'Policy on Improving Access to Land and Tenure Security', 17

[3] Liz Alden Wily, 'Looking back to see forward: the legal niceties of land theft in land rushes', 39 Journal of Peasant Studies 751-775 (2012).

[4] Article 51 (1) of the Federal Constitution entrusts the federal government with the task of enacting laws 'for the utilization and conservation of land'. Article 52(2)(d) gives regional states the powers and functions 'to administer land and other natural resources in accordance with Federal laws.'

[5] Article 1.1 of the Land Rent Contractual Agreement Made between Ministry of Agriculture and Rural Development and Karuturi Agro Products PLC, signed 25 October 2010, states that: 'The scope of this Lease Agreement is to establish a long-term land leas of rural land for [the] development [of] palm, cereals and pulses farm on the land measuring 100,000 hectares (Itang 42,088 hectares and Jikao 57,912 hectares), located in Gambela Regional State, Nuer Zone, Jikao District and Itang Special District together with the lease certificate serial No. EIA-IP 14584/07 with all rights of easement of amenities, fittings, fixtures, structures, installations, property or other improvements standing thereon, to the company incorporated for the purposes hereinafter mentioned by the lessee in the Federal Democratic Republic of Ethiopia'. See Stebek E.N., op. cit.

[6] 'A Proclamation to Provide for the Expropriation of Land Holdings for Public Purposes and Payment of Compensation', Proclamation No. 455/2005, Federal Democratic Republic of Ethiopia.

[7] First report: E/CN.4/1999/WG.18/2; second report: A/55/306; third report: E/CN.4/2001/WG.18/2; fourth report E/CN.4/2002/WG.18/6 and E/CN.4/2003/WG.18/2

[8] UN Economic and Social Council

[9] UN Economic and Social Council, op. Cit., p. 9

[10] Oakland Institute, 2011, 'Understanding Land Investment Deals in Africa. The Role of the World Bank Group', The Oakland Institute, Oakland, USA

[11] Alden Wily, supra note 3.

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