Letter to UHRC regarding the 2013 special oil report on emerging Human rights issues.

Thursday, March 27th, 2014

Letter to UHRC regarding the 2013 special oil report on emerging Human rights issues.

 24th March 2014

The Chairperson, Uganda Human Rights Commission,
Dear Sir/Madam,

The above refers,
This is to kindly request you to give us an opportunity to meet you and discuss the findings and the recommendations of the 2013 Special Oil Report that was launched on the 20thMarch 2014 at the Grand Imperial Hotel‐Kampala. The main objective of this letter is to enable us meet you and discuss ways through AFIEGO can contribute to the implementation of the report recommendations for the benefit of the citizens and national development. We request to meet you on 16th April 2014 or any other date convenient for you. First, we take this opportunity to thank you for the great work the commission and its staff is doing for promoting respect for human rights in Uganda and for involving CSOs including AFIEGO in the process of compiling and launching the 2013 special oil report. As an organization, we appreciate and thank you for such a participatory approach, a key ingredient of any functioning democracy. In AFIEGO, you are assured of a committed partner willing to continue supporting the UHRC to fulfill her constitutional mandate. AFIEGO (Africa Institute for Energy Governance) is a Ugandan registered public policy research and advocacy NGO whose main objective is to promote good governance in the management and utilization of energy resources for the common good and national development. It was established in April 2005.
We strongly believe that the UHRC report is timely and if well implemented will significantly contribute in ensuring that Uganda’s oil is used for the common good, human dignity and national development. While the content of the report is good, in the proposed meeting, we shall point out some of the gaps and propose how they can be addressed to improve future reports that your commission may wish to produce as the oil sector midstream and downstream activities increase. In summary, the following is a summary of issues which intend to discuss in the proposed meeting:
1. Compensation rates: On page 16, the report creates an impression that the Chief
Government Valuer (CGV) or the District Valuer (DV) has powers to change the rates of crops and buildings of non permanent nature. But if you consider sections 59 and 60 of
the Land Act on the functions and powers of the district land board respectively, the board is required to be independent and can only seek advice from district technocrats, including the district valuer but not the CGV.It should be noted that the failure by the District Land Boards (DLB) to appreciate their functions and powers against those of the CGV regarding compensation is one of the major factors that has continued to cause trouble in Uganda. We believe that the reason why the legislature opted to give all powers on determining rates of compensation for crops and buildings of non permanent nature to the DLBs was clear, the CGV who seats in Kampala cannot know the market prices in all parts of Uganda and the aggrieved affected persons, most of who are poor people cannot access his office easily. And the citizens especially the poor and rural based cannot enjoy their right to property provided for under Article 26 of the Constitution if the institutions are not doing their work well. So, for the UHRC to create an impression that the rates used were well determined by the DLB of Hoima without inquiring whether the process met the standards set under Article 26 of the Constitution and section 60 of the 1998 Land Act is unfair.
As AFIEGO, we are not happy to see that in all your recommendations, you are not advising the DLBs to do their work better by exercising all their powers and appreciating their functions and the scope of their work, and the CGV to desist from interfering with
the DLBs. From our investigations, the interference of the CGV in the work of DLBs is the
single biggest factor causing delays in compensation annual reviews across Uganda because every district has to wait for the decision of the CGV every year. While the approval may be okay in practice and for purposes of harmony across districts, it violates
the powers of DLBs as provided for under sections 60 and 59 of the Land Act 1998 as amended and its consequence of causing delays is a violation of Article 26 of the Constitution which provides for the payment of prompt, fair and adequate compensation prior to depriving a person his or her property. So, it would have been fair to advise the CGV to stop interfering in the work of the DLBs as a way of promoting prompt payment of compensation to affected Ugandans. Second, the land act requires each DLB to have a seal but during the compilation of the report, AFIEGO met and presented the 2010/2011 rates which had been used in 2012 for valuation of the affected people’s property to UHRC team. Later, the payment of compensation started in late 2013 and continued in 2014 on the basis of 2010/2011 rates. How then could you conclude that the disputed rates were duly and legally determined by the Hoima DLB?. The rates used had no seal and were signed by the district valuer instead of the Board. Surely, how can people enjoy their rights if laws are not being followed by government institutions?
2. UHRC satisfied with the rates of UGX‐3.5M‐7M per acre and rates for crops: the report
on pages 15 and 16 states that the above rates were good and that you got information from the MEMD which indicated that the ministry was about to buy land for people who asked for relocation at a cheaper price. How can the commission make a conclusion based on speculation? We want to present to you evidence to show that the MEMD has up to now failed to secure land for the people who want relocation because they are being asked to pay UGX6.5m and above per acre. So, the report’s conclusion that the rates are good based on the words of the MEMD who we have been complaining about to be mismanaging the refinery compensation process leaves a lot to be desired. It is like an accused or complainant being asked to be a judge in her own case. Yes, the majority affected people accepted and signed for compensation and many have since then received their compensation but that should not be taken as a sign that all those people signed voluntarily. Remember, the communities of Kabaale like many other rural areas in Uganda are poor people most of whom have no money to hire lawyers to go to court in case of disagreements. The nearest court is 40km away in Hoima town. So, in most villages, it is a take it or leave it affair. For instance, to date, the people who rejected the compensation rates that were given to them from above and later lodged complaints in June 2013 are yet to receive any feedback. Instead, they have been isolated and if we cannot urgently help them, they will sign, not because they agree but because they have lost hope for justice. At the end, they will console themselves that unfair and inadequate compensation is better than nothing. So, no one should be deceived that all those who signed are happy. Instead, it should be noted that the majority are forced by factors beyond their means to sign and transfer their property. Right now, the people who rejected the compensation have asked AFIEGO to help them go to court. And we have already served the Attorney General with a notice of intention to sue (see as attached). AFIEGO and other NGOs, who are helping the downtrodden to get justice, need the commission’s support and protection. But when you conclude in your report that CSOs are acting unprofessionally, are not accountable and do not act in public interest without evidence, you make our operational environment even worse. In the meeting, we shall request for advice on how to proceed with the above court process and our protection as human rights defenders.
PEOPLE WHO ASKED FOR RELOCATION: the report recognizes that many children in the refinery area have stopped going to school because their parents are living a life of uncertainty. Despite this finding, the report does not recommend a timeline within which to resettle the people who asked for relocation to start a new life and ensure that their kids go back to school. The commission should have appreciated that it is in itself a violation of human right for one to be made to live a life of uncertainty on his/her own land for over 17 months. It is clear that the dropping of children out of school is just a symptom of a bigger problem. If you do more investigations, you will discover that the life of uncertainty in the Kabaale households has led to grave break down of many families in the area. Because of the CUTOFF DATE IN THE RAP, since June 2012, the people have continued to live in Kabaale affected villages as displaced persons and landless. That is a violation of their right to own and use their property freely. Again, the above people like the one who rejected compensation have asked AFIEGO to help them go to court. The case will be filed on 27thMarch but we still need your advice and any mediation is welcome.
WANT TO GO TO COURT FOR REDRESS: I am wondering why the report does not find it strange that over 86 people who rejected the compensation rates and lodged complaints in June 2013, up to now, they haven’t gotten any feedback. Paying some people and leaving others with complaints for years has left many isolated. This in itself is an injustice which the report should have pointed out and called upon government to address. We would have expected the UHRC report to make a recommendation on how such people should be helped in a specific timeframe to avoid possible litigations. As mentioned above, the affected people want AFIEGO to help them go to court as a last resort. The above people with our support have tried everywhere including the speaker of parliament, ministry of energy, lands, Bunyoro Affairs, Bunyoro MPs and others without success. The remaining option is court.
To that extent, the report falls short of the people’s expectations and I am sure, if you presented into the refinery affected people in its current form, the commission would have many questions than answers. People will feel betrayed. If you had given them an opportunity to validate the draft report, may be your findings, conclusions and recommendations would have been different and more appropriate to the challenges of the affected people.
3. Compensation before acquiring the property: we don’t know why the report does not condemn the RAP report where on page 33, it puts a CUT OFF date on people’s land before payment of their compensation contrary to Article 26 of the Constitution. Since 2012 June, no owner of land in Kabaale affected villages is allowed for instance to build a house on the affected land. In view of the above Article 26 of the constitution, the CUTOFF date makes the RAP report unconstitutional. The UHRC should have questioned the legality of the CUTOFF DATE and where the government got such powers to impose it when the Constitution is clear that an owner of property has absolute right over his/her land until fair and adequate compensation is paid. To that extent, the RAP report is illegal. Perhaps, it is the reason why it was never availed to the affected people and the commission could only access it from Entebbe when the affected people are in Bunyoro, 230km away.
4. Valuation of customary land and other property rights: in section 77 of the Land Act,
the value of customary land is the open market value of unimproved land while that of buildings is the open market value of urban areas depreciated with the replacement value of rural areas. We had hoped that the UHRC would investigate whether or not the MEMD and SFI complied with these requirements rather than relying on the speculation that the MEMD was in the process of buying land at a cheaper price in the same area.
That way, you would have given Article 26 of the Constitution a rich and progress meaning.
5. Regulations for the assessment and payment of compensation: Section 20 of the Land Acquisition Act 1965 requires that the minister of lands should put in place such regulations to help avoid discretions and create certainties on how compensation rates are determined but for over 40 years, the regulations are yet to be formulated. We would have expected the commission to recommend for the formulation of such regulations as a matter of urgency to give full effect to the Land Acquisition Act as a means to stop or at least reduce the increasing cases of conflicts in compensation processes and land grabbing where Ugandans have continued to lose lives.
6. Government’s suspicion of some CSOs: on pages 36 and 37, the report appreciates that CSOs are important in any functioning democracy and goes ahead to rightly note that one of the roles of CSOs in good governance is to hold duty bearers/government for their actions and decisions. The report confirms that the roles of CSOs more often make them conflict with the government and in the oil region; the suspicions between CSOs and government are real. Some CSOs reported harassment. Unfortunately, in paragraph1 on page 37—you conclude that there is a capacity problem among CSOs to effectively handle oil issues. That due to capacity gaps, most CSOs had resorted to speculation and disseminating misleading information to members of the public thus causing unnecessary clashes amongst themselves and some government officials. Further, on pages 4 and 43 (recommendation 4.6), you conclude and recommend that CSOs should endeavor to always act professionally and be accountable; they should always strive to advance the interests of the people. This conclusion is very unfortunate because a look at the list of interviewees, only 4 NGOs were interviewed and I am sure, NGOs such as International Alert and AFIEGO cannot be faulted for lack of capacity without proof. Indeed, the UHRC Chairperson’s speech opening the launch meeting clearly stated that you began investigations based on the 9th May 2013petition which had been drafted by AFIEGO and submitted by the PAP to the MEMD, Speaker of Parliament, Minister for Lands, Minister for Bunyoro Affairs and other government agencies.
Surely, is that a sign of lack of capacity? Where is evidence in the report to show that NGOs act unprofessionally and are not accountable or do not act in the interests of the public? This is not to attempt to say that all NGOs have capacity but to show that the recommendation and conclusion is over‐exaggerated as generalizes all CSOs. We gave you evidence of how the government was harassing NGOs to cover up excesses of some officials. Yourself, you failed to get the RAP report in the Albert region and you had to go to Entebbe to get a copy. How many of the affected people or NGOs in Bunyoro can manage to go to Entebbe‐over 230km away from the affected people. Now, isn’t it our right to access such information? If we say that the government is hiding information, is that speculation and misleading? Who should be blamed in that situation?
Further, Why didn’t you recommend the MEMD and police to facilitate NGOs/CSOs with relevant and timely information such as the RAP report, feasibility study, the EIA report for the refinery and others which are key to the refinery affected people and others? Why didn’t you recommend the government to stop harassing CSOs? What evidence does the report provide to show that CSOs are not professional, accountable and are not acting in the interests of the public? Did you find any affected citizens complaining about CSOs We would like to discuss these and other questions in the proposed meeting of 16th April2014 at your office. NB. Attached is a statement and a list of cases regarding harassment, intimidation and threats to environmental and human rights defenders by some government officials in Uganda and the Great Lakes Region.
Thank you in advance for your positive response.
Signed by;

• Africa Institute for Energy Governance (AFIEGO),
• National Association for Professional Environmentalists (NAPE)
• Global Rights Alert (GRA)
• Ecological Christian Organisation (ECO)
• Pro-biodiversity Conservationists in Uganda (PROBICOU)
• Lake Albert Children and Women Advocacy and Development
• Association (LACWADO)
• Uganda Youth Voluntary Efforts in Advancement and
• Environmental Protection
• Butimba group
• Buseruka Women’s Association