Introduction

On August 8, Mozambique’s Council of Ministers announced that it had adopted the Regulation for Resettlement Resulting from Economic Activities [Regulamento sobre o Processo de Reassentamento Resultante de Actividades Económicas].[1]

This decree aims to fill an important gap by providing safeguards for people displaced and resettled by economic activities and development projects. Such safeguards are particularly crucial in the context of Mozambique’s natural resource boom and the rapid expansion of large investments in mining, forestry, agribusiness, and other activities that may result in the displacement of the current land-users.

 

While the decree includes important protections, many significant gaps remain. Key stakeholders were not given an adequate opportunity to participate in its drafting. The government carried out a limited process of consultation that failed to include important stakeholders such as civil society organizations, local communities, donors, the private sector, and multilateral institutions. The decree provides detailed requirements on some elements such as housing, but overlooks vital protections related to land and livelihoods, access to health care, grievance mechanisms, and meaningful consultation and participation of affected communities.

 

Human Rights Watch has prepared this analysis of the decree to identify where it falls short of protections required by Mozambican and international human rights standards. The analysis below is not exhaustive, but highlights some key areas of concern. Human Rights Watch believes that these gaps should be addressed if the decree is to live up to its important purpose: ensuring that the rights and livelihoods of resettled communities are respected and protected.

 

In May 2012, Human Rights Watch carried out field research in Tete province, Mozambique to examine the resettlements carried out in Moatize district due to coal mining operations owned by Vale and Rio Tinto. Based on these findings and an analysis of national and international human rights protections, we seek to identify practical recommendations that will be of broader relevance to potential resettlements resulting from the many development projects likely to be initiated in Mozambique in the coming years.

 

We urge the Mozambican government to revise the current resettlement decree and to incorporate broad consultation into the process. Human Rights Watch’s key recommendations for revision include commitments to:

  • Avoid involuntary resettlement when possible and minimize its scope and impact when it takes place;
  • Ensure public consultation and participation at all stages of the resettlement process, including full and informed consent regarding relocation;
  • Re-establish and improve the affected population’s standard of living, including livelihoods and access to services such as health care and education;
  • Provide accessible mechanisms for grievance redress and right to a remedy; and
  • Integrate resettlement plans into district, provincial, and national-level development plans, budgets, and oversight.

 

 

General Commentary

Resettlements, and particularly involuntary resettlements, implicate a wide range of rights guaranteed under Mozambique’s national laws and international human rights law. These include the rights to adequate housing, health, education, work, security of the person, security of the home, and freedom from cruel, inhuman, and degrading treatment.[2]

 

In Mozambique, all land is the property of the state, and the Land Law of 1997 outlines the rights of use and benefit of the land to individuals, communities, and corporations.[3]Under Mozambican law, the government owns mineral resources under the ground and land may be expropriated from its current users if the government deems it in the national interest. Mozambican law also includes key safeguards for affected populations including fair compensation prior to expropriation. Article 82(2) of the Constitution of Mozambique states that, “[e]xpropriation may take place only for reasons of public necessity, utility, or interest, as defined in the terms of the law, and subject to payment of fair compensation.”[4]The Land Law additionally stipulates that the compensation be fair, cover losses and lost profits, and that such payments should precede revocation of land use.[5]

 

Resettlement from land may be constitutional if conducted in line with constitutional requirements; however, it typically causes disruptions to livelihoods and access to services. Resettlement can impact rights the Mozambican constitution guarantees including the rights to education, health, a balanced environment, and housing.[6]Disruptions to the enjoyment of these rights caused by resettlement may have a disproportionate impact on certain groups, such as women, children, people with disabilities, or the elderly. The constitution also provides for special consideration and support of these groups.[7]A national decree regulating resettlements such as the Regulation for Resettlement Resulting from Economic Activities should comprehensively address the multiple constitutional rights at stake for affected populations.

 

Mozambique is also required to uphold its international human rights obligations as a party to the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the African Charter on Human and Peoples’ Rights (African Charter).[8]Article 43 of Mozambique’s constitution stipulates that the constitution be interpreted in harmony with the Universal Declaration of Human Rights and with the African Charter.[9]

 

Our recommendations below are based on interpretations of national and international human rights law, and also draw upon examples of standard and best practice in the resettlement policies from other institutions.[10]Not all of these constitute sources that Mozambique is required to abide by, however we believe they provide useful examples of how other institutions and governments have successfully addressed similar concerns and obligations regarding involuntary resettlements.

 

Human Rights Watch’s key recommendations for aligning the current resettlement decree with the Mozambican constitution, international human rights standards, and prevailing best practice include:

 

A commitment to avoiding involuntary resettlement when possible and minimizing its scope and impact when it takes place.
A key principle that should be highlighted prominently in a revised decree is that resettlements should be carried out only in exceptional circumstances, after exploring all possible alternatives, and that their scope and impact should be minimized where no viable alternatives exist. This principle is highlighted in the UN Special Rapporteur on Housing’s guidance on development-based resettlements, the Committee on Economic, Social, and Cultural Rights’ General Comment on Forced Evictions, and is a standard component in the resettlement policies of international finance institutions, the OECD, and other countries’ national regulations.

 

A comprehensive definition and elaboration of public consultation and participation at all stages of the resettlement process, including full and informed consent regarding relocation.
The current decree interprets public participation narrowly by primarily relying upon public meetings and by designating community representatives to be involved in dissemination of information about the resettlement process. Public participation should be defined broadly to include meaningful consultation in the design, implementation, and post-move phases of resettlement. Hearings should be seen as just one mode of participation that should be coupled with others, including individual and small group consultations. There should also be dedicated measures that facilitate the participation of groups that may face specific impacts or that are marginalized such as women, children, the elderly, people with disabilities, and minorities.

 

Affected groups and individuals should give their full and informed consent regarding the relocation site. The state should consider alternative plans proposed by affected persons and communities and establish accessible channels for providing feedback outside the framework of planned consultations. A positive element of the current decree that should be retained in a revised decree is the obligation for public administration bodies to respond to clarification requests, observations, and recommendations within 15 working days.

 

The government and proponents of economic activities causing involuntary resettlements should present affected populations with viable alternatives so they can make real choices in their best interest instead of having to accept one standard compensation package.

 

 

A focus on re-establishing and improving the affected population’s standard of living, including livelihoods and access to services such as health care and education.
Affected populations should have the right to compensation prior to displacement to minimize disruptions to their standard of living. A central concern for resettled populations is their ability to maintain or improve their livelihoods. The current decree pays some attention to the variety of issues that need to be addressed to ensure a smooth transition for farmers or for those who engage in other types of work, but it overlooks important elements. The decree provides for the “consideration” of environmental characteristics such as soil fertility. But it fails to establish clear standards for the type and quality of replacement land, access to water supply, timing of moves to avoid disruptions to farming cycles, and technical assistance for those who adapt or change their livelihoods. Moreover it fails to recognize the importance of secondary economic activities including vegetable gardens on housing plots, transportation, and access to key markets. Further details are provided in the analysis below.

 

The current decree incorporates some requirements for housing and access to schools, health posts, and infrastructure. However, these standards should be strengthened to ensure these are established prior to the move. They should also take into account the availability, affordability, accessibility, and quality of health care, housing, and education. The standards on housing should take into account cultural adequacy.

 

Provision of accessible mechanisms for grievance redress and right to a remedy.
Establishing channels for various stakeholders to make complaints or resolve disputes related to the resettlement process is a critical element that has been excluded from the decree. The Mozambican constitution provides several guarantees for citizens to freedom of expression, to claim compensation, and to present complaints to the authorities.[11]The resettlement decree should be revised to ensure that clear and accessible channels are established for parties to raise grievances and resolve resettlement-related disputes. Existing channels for making complaints through the formal justice system should also be available. Along with robust monitoring, including inspections, a process for making complaints is essential for fair implementation of the decree and accountability.

 

 

Integration of resettlement plans into district, provincial, and national-level development plans, budgets, and oversight.
There are wide-ranging implications for overall governance when a resettlement takes place involving a population shift, and in particular for the adequate provision of services and relevant infrastructure. While each resettlement plan may address one specific project, there is a broader issue of cumulative impacts, especially when economic projects are concentrated in specific geographic areas such as coal mining in Tete province. The Mozambican government should take this into account and provide channels for integrating individual resettlement projects into general district, provincial, and national planning.

 

 

Commentary on Specific Articles

Below is a more detailed commentary on specific articles of the Regulation for Resettlement Resulting from Economic Activities. This analysis does not evaluate each article in the resettlement decree or selected articles in their entirety. Human Rights Watch’s commentary follows excerpts of the current decree, which are indented and italicized.

 

Article 4 - Principles

The resettlement process resulting from public and private activities is based on the following principles:

               

Principle of Social Cohesion – the resettlement shall guarantee social integration and re-establish the standard of living of the affected people to a higher level;

               

Principle of Social Equality – all those affected by the resettlement process are entitled to the re-establishment or creation of conditions equal or above their previous standard of living;

               

Principle of Direct Benefit – the affected people shall be given the possibility to benefit directly from the undertaking and its socio-economic impacts;

               

Principle of Social Equity – the resettlement of populations in new areas shall take into account access to the available means of subsistence, social services, and resources;

               

Principle of Non-Alteration of the Income Level – the resettled people shall have the possibility to re-establish their previous basic income level;

 

Principle of Public Participation – in the resettlement process there shall be hearings of local communities and other parties interested in and affected by the activity;

 

Principle of Environmental Accountability – whoever pollutes or in any other way degrades the environment has always the obligation to repair or compensate the resulting damages;

               

Principle of Social Responsibility – the investor must create social infrastructures, which promote learning, leisure, sports, health, culture, and other projects of community interest.

 

The current resettlement decree contains many protective elements for affected populations including principles of social equality, direct benefit, public participation, and environmental accountability. However, there are key principles missing from these overarching goals:

 

  • Principle of Avoiding and Minimizing Displacement— As discussed in the previous section, the government should allow evictions only in exceptional circumstances and minimize their scope and impact where no viable alternatives exist. The government should ensure that evictions are undertaken solely for the purpose of promoting the general welfare, are reasonable and proportionate, and are carried out in accordance with international human rights law.

 

  • Principle of an Improved Standard of Living—The wording of the principle on non-alteration of income level in the decree (see above) should be made consistent with the wording in article 10 (see below) which calls for the affected population’s standard of living to be restored or improved. The current wording of this principle is weaker than Article 10 as it only targets income level and it calls for resettled people to have the opportunity to re-establish their basic income level rather than to have it restored. A principle of an improved standard of living should include ensuring that resettled people will have land-based or employment-based productivity as appropriate, and protecting their rights to adequate food, water, and housing.

 

  • Principle on the Rights to Education and Health—Resettlement should not lead to any deterioration in the affected population’s access to affordable health care or education, nor to a deterioration in the quality of available health care or education. Resettlement processes should include appropriate coordination with the health and education sectors of the government.

 

  • Principle of Public Participation— As discussed in the previous section and below, public participation should not be limited to public hearings and consultations, but instead be defined broadly to include meaningful consultation and participation in the design, implementation, and post-move phases of resettlement. Affected persons and communities should give their full and informed consent to the relocation site.

 

  • Principle of Environmental Protection and Accountability—Resettlement of human populations and the expansion of economic activities is often closely linked to environmental impact. There should be an expansion of the current principle on environmental accountability to prioritize the prevention and mitigation of environmental harm as well as accountability. This includes regular monitoring, public information, and the obligation to rehabilitate or provide fair compensation for affected areas.

 

  • Principle of Respecting the Rights of Indigenous Peoples—Indigenous people have rights over the land, territories, and resources they have traditionally owned, occupied, or otherwise used or acquired. Indigenous peoples can only be relocated with their free, prior, and informed consent, after agreement on just and fair compensation of land, property, or livelihood. Where possible, they should be provided with the option of return.

 

Article 6 - Composition of the Technical Committee

1. The Technical Resettlement Monitoring and Supervision Committee includes representatives of the following sectors:

a) Two members of the Land Use Planning sector;

b) One member of the Local Administration sector;

c) One member of the Public Works and Housing sector;

d) One member of the Agricultural sector;

d) One member of the related area;

e) One member of the Provincial Government

f) One member of the District Government.

 

2. Whenever justified by the nature of the work, representatives of other sectors, specialists or individuals of acknowledged merits may be invited to participate in the sessions.

 

Given the important role that the technical committee plays in monitoring and evaluating the resettlement plan and determining the options for compensation, Human Rights Watch recommends that this committee include more than one representative of the affected community and, as appropriate, other relevant members such as representatives of civil society and independent experts. Community representatives should include both men and women. The Mozambican government should also consider inviting independent resettlement experts to become members of the technical committee in especially sensitive cases.[12]

 

Given the importance of integrating adequate plans for resettled communities’ access to schools, health care, and jobs, the government should consider adding officials from the relevant sectors, including labor, health, women and social affairs, and education, to the technical committee. At a minimum, the decree should stipulate that the technical committee is required to consult regularly with them.

 

Measures should be taken to ensure the technical committee's deliberations are as transparent as possible, including by recording minutes and making these publicly accessible. Regarding Article 6(2), the committee should consult with or invite the participation of civil society actors and additional representatives of affected communities as needed.

 

Article 7 - Functions of the Technical Committee

1. As a multi-sectoral and technical advisory body, the Technical Committee has the following functions:

a) To monitor, supervise and make methodological recommendations for the entire resettlement process;

b) To issue technical opinions about the resettlement plans;

c) To prepare monitoring and evaluation reports of the resettlement process, taking into account the previously approved plans;

d) To propose the notification of the proponent of an activity to provide information about the progress of the resettlement process;

e) To prepare the draft Internal Regulations of the Committee;

f) To propose complementary rules for the implementation of these Regulations.

 

In addition to the responsibilities enumerated above, the functions of the technical committee should be elaborated to specify that the term “entire resettlement process” covers the early design phase, the move, and the post-move evaluation phase. There is also a lack of clarity about whether this body will handle complaints from either the affected community or the proponents of the project. Finally, the technical opinions, monitoring and evaluation reports, and other related documents should be made publicly available in a language understood by the local community.
 

Article 8 - Other Stakeholders of the Resettlement Process

1. Without prejudice to the Technical Resettlement Monitoring and Supervision Committee, the following stakeholders participate in the resettlement process:

a) Five representatives of the affected population;

b) One representative of Civil Society;

c) Three community leaders;

d) Two representatives of the private sector.

 

2. The participation of the stakeholders referred to in the previous paragraph aims at the following:

a. Mobilization and awareness-raising of the population regarding the resettlement process;

b. Intervention during all phases of the resettlement process, including the respective supervision;

c. Awareness-raising about their rights and obligations resulting from the resettlement process;

d. Informing the competent authorities about any irregularities or illegalities detected during the resettlement.

 

The delineation of members of the affected community, civil society representatives, community leaders, and the private sector in the resettlement process is a positive element of the current decree. However, the description of their role is largely limited to mobilizing their constituencies and awareness-raising. These are key stakeholders who should not only have a role in facilitating the implementation of a resettlement, but also play an influential part in the design of the resettlement and compensation package.

 

The role of these stakeholders should include, but not be limited to, becoming members of the technical committee or being regularly consulted by the technical committee. The community representatives should reflect the makeup of the affected populations, including both women and men and major social and ethnic groups. Including representatives of the affected population in the design and monitoring phases is a critical component of meaningful consultation and public participation.

 

Article 9 - Approval of the Resettlement Plan

1. The District Government is competent to approve the Resettlement Plans.

 

2. The approval of the resettlement plans is preceded by an opinion of conformity issued by the sector supervising the Land Use Planning area, after hearing the Agriculture, Local Administration, Public Works, and Housing sectors.

 

Human Rights Watch believes that assigning district authorities with sole authority for approving resettlement plans may carry limitations. For example, some projects may run across more than one district. The scale, technical expertise, and implications of some projects may be beyond a district government’s resources and capacity to evaluate properly. Human Rights Watch suggests broadening this clause to allow provisions for the provincial or central government to approve resettlement plans in certain cases and for the district government to solicit input and technical advice from appropriate bodies at the provincial and central level.

 

Given the range of social services and aspects of community life affected by resettlement, the approval of resettlement plans should also involve input from the labor, health, education, and women and social affairs sectors in addition to the agriculture, local administration, public workers, and housing sectors.

 

As outlined throughout this analysis, approval of resettlement plans should be agreed in consultation with affected people, including their full and informed consent regarding the relocation site, and their participation in determining other aspects of the compensation package and restoration of their standard of living.

 

Article 10 - Rights of the Affected Population

1. The rights of the directly affected population are:

a) To have their income level re-established, equal to or above the previous level;

b) To have their standard of living re-established, equal to or above the previous level;

c) To be transported with their goods to the new place of residence;

d) To live in a physical space with infrastructures and social facilities;

e) To have space to perform their subsistence activities;

f) To give their opinion about the entire resettlement process.

 

In accordance with the national and international protections elaborated in the introduction to this paper, and upon review of comparable resettlement policies adopted by other institutions, Human Rights Watch recommends that the rights of the affected population be expanded to include:

 

Rights prior to resettlement

  • The right to full and informed consent regarding the relocation and to be consulted in the design phase of the resettlement plans, including determination of compensation and rehabilitation measures;
  • The right for affected persons and their advocates to challenge the resettlement decision, to present alternative proposals, and to articulate demands and development priorities;
  • The right to opportunities for facilitated provision of legal, technical, and other advice about legal rights and options; 
  • The right to full information about the resettlement well ahead of time, including at least 90 days’ notice before the date of the move;
  • The right to have harvest seasons and other cycles of livelihoods factored into the timing of the move;
  • The right to live in a place with adequate infrastructure and social facilities, including health posts, schools, water supply, sanitation, and roads established before their move; and
  • The right to compensation prior to displacement to give affected populations enough time to minimize disruption to their livelihoods.[13]

 

Rights regarding compensation

  • The right to replacement land that is of better or at least equal quality as the land from which affected people are being displaced;[14]
  • The right to live in a physical space that respects cultural and social arrangements, although these should not be used to perpetuate discrimination;
  • The right to compensation for all lost assets through cash or replacement assets. Compensation, when appropriate, is based on the principle of replacement cost. Preference should be given to land-based resettlement strategies for displaced persons whose livelihoods are land-based;[15]
  • The right to have compensation and rehabilitation measures include common property resources, cultural property, public facilities, and infrastructure;
  • The right for resettlement not to take place in inclement weather, at night, during festivals or religious holidays, prior to elections, or during or just prior to school examinations;
  • The right to have alternative housing situated as close as possible to the original place of residence and source of livelihood; and
  • The right for local government officials and neutral observers, properly identified, to be present during the resettlement to ensure that no force, violence, or intimidation is involved.

 

Overall

  • The right to genuine choices among feasible resettlement alternatives;[16]
  • The right to policies sensitive to the makeup of the population in terms of gender, ethnicity, urban/rural, etc.;[17]
  • The right to have easily accessible opportunities to make complaints and get a timely response;
  • The right to assistance prior to, during, and after the relocation or transition, until the affected population has had ample time to achieve the standard of living set out in the resettlement plan;
  • The right to have access to legal advice prior to, during, and after the relocation;
  • The right to protection and support of social and cultural institutions of the affected people, and, where relevant, of the host communities;
  • The right for the standard of living of host communities to be protected;[18]and
  • The right to legal advice throughout the process.

 

Article 12 – Responsibilities at Central and Local Level

4. The responsibilities of the Agriculture sector in the resettlement process are to provide technical assistance to the implementation bodies in land register organization matters.

 

5. The responsibilities of the District Government in the resettlement process are the following:

a) To make spaces available for the resettlement of the affected families;

b) To guarantee the regularization of the occupation of the lots;

c) To inspect the implementation of the resettlement plans;

d) To make spaces available for the practice of subsistence activities.

 

A key responsibility of the government is to help ensure that affected populations are able to re-establish or improve their standard of living after resettlement. Government agriculture authorities should be tasked not only with land registration matters, but also to assist with selection of appropriate agricultural land to verify that it is suitable for crop production. At minimum, the new land should be the same quality as affected population’s previous land and they should be able to realize their rights to food and water, including the ability to grow or buy food appropriate to their traditions. Government agriculture authorities should also provide technical assistance as necessary.

 

Furthermore, in order to ensure implementation and protection of the full range of rights of the resettled population, the decree should also outline the responsibilities of other relevant government sectors such as labor, health, education, and women and social affairs.

 

The district government should be responsible for facilitating regularly updated information, effective consultation procedures, and accessible complaint mechanisms and responses. It should also solicit input and technical advice from appropriate counterparts at the provincial and central level as necessary.

 

Article 13 - Public Participation and Article 23 - Public Consultation

1. Public participation is guaranteed during the entire preparation and implementation process of the resettlement plans.

 

2. Public participation includes public consultation and hearings and comprises:

a) Requests for clarification;

b) Formulation of suggestions and recommendations;

c) Interventions in public meetings.

 

3. Public consultations are held through public meetings, according to the nature of the issues, for analysis of the local dimensions of the environmental planning and national-level coordination strategies, for harmonization of the strategies and evaluation of their suitability for the evolution of reality.

 

4. Public hearings are held with a periodicity defined according to the nature of each process, properly advertised in the main media, addressed to the interested and affected parties, and in other adequate media, so that these parties can express their opinion regarding any proposals that have been or will be made.

 

5. The conclusions and recommendations of the public consultations and hearings referred to in this article, which are included in the resettlement plan, take the form of minutes.

 

6. The minutes of the public consultations and hearings are approved by the competent bodies, referred to in article 10 of these Regulations.

 

7. The approval or disapproval of the conclusions and recommendations of the minutes referred to in the previous paragraph shall be justified, through an opinion of the body supervising the Land Use Planning area, after having heard the Technical Resettlement Monitoring and Supervision Committee.

 

Article 23

1. The preparation and implementation of the resettlement plan includes holding at least four public consultations, advertised in the main media and at the intervention sites.

 

2. The dissemination of this process, through the means deemed adequate to guarantee public participation, with a view to collect comments, suggestions or recommendations concerning the draft resettlement plan, constitutes a guarantee of citizens' right to information, particularly of the affected or interested people.

 

3. For each public consultation the respective minutes which shall be drawn up and signed by the members of the Technical Resettlement Monitoring and Supervision Committee, representatives of the affected persons and the proponents, and shall be posted in the usual places for public knowledge.

 

Public consultation should not be limited only to large public hearings, but should involve a wide array of activities to ensure broad consultation and diverse inputs. Some individuals may find it difficult to speak up in a large public meeting or may lose their opportunity to provide input if they are in their fields, traveling, or sick that day. Other methods of public consultation could include focus groups,[19]especially with populations that may experience specific impacts or who may be marginalized from participation in large public meetings (women, children, minorities, people with disabilities, a group of workers whose main economic livelihood may be particularly affected by the move, etc), and household or individual visits when feasible. There should be accessible mechanisms to receive and consider any in-person or written inputs from affected communities or their representatives.

 

Article 14  - Right to Information

1. The interested and affected parties have the right to information about the contents of the studies with respect to the resettlement process.

 

In order to stimulate and allow public participation in the process, the entities responsible for its preparation shall disseminate the main aspects of the plan in question, through adequate means of information for each context and provide all relevant documentation for consultation by the interested parties.

 

2. The Public Administration bodies have the obligation to respond to the requests for clarification referred to in the previous paragraph, in the same way in which these were presented to them, as well as to examine and take a position on the observations, suggestions and recommendations presented during the public participation process, within fifteen working days from the date of the request.

 

3. The dissemination of the following aspects is compulsory, through all means deemed necessary:

a) The decision to start the process, identifying the objectives to be aimed at;

b) Information to the Land Use Planning sector about the start of the resettlement process;

c) The start and duration of the public consultation phase and the respective conclusions;

d) The implementation mechanisms used.

 

The resettlement decree should require resettlement plans to detail a public information strategy that ensures the realization of the right to information.[20]In order that affected populations and other stakeholders have information about resettlement, the authorities should make resettlement plans and related documents publicly available, should translate them into appropriate languages, and disseminated them in an effective manner for the local context, for example through print, radio, and television media, informational booklets written in a simple, illustrated style, and street plays.

 

In order to promote a fair process that protects the right to information and to assist in the resolution of disputes, written documentation should be made available to the public and to affected stakeholders as an authoritative reference about the process. In many places, confusion, lack of information, or misinformation may cloud the communities’ understanding of a finalized compensation package and the timeline of action. Proponents of a project may make promises early in the process to secure a community’s agreement to the resettlement that later become matters of dispute. At a minimum, affected households should receive a written receipt detailing the full terms of their compensation. Affected communities should have access to easily understandable, written documentation of their options during the design and consultation period, and to outcomes of community-wide complaints in the post-move period.

 

Civil society organizations, trade unions, journalists, researchers, donors, and other actors should be able to operate freely in areas where a resettlement is being planned or has taken place. These actors often play a key role in disseminating information, raising awareness about potential problems, and ensuring accountability.

 

Article 17 - Environmental Characteristics

1. The environmental characteristics to be considered in the resettlement areas are the following:

a) Soil permeability;

b) Water table;

c) Inclination of the terrain;

d) Storm water drainage;

e) Soil fertility.

 

2. Resettlement is prohibited in:

a) Areas with significant environmental impacts, such as the occurrence of erosion and areas prone to being flooded;

b) Protected areas under specific legislation.

 

Human Rights Watch welcomes the consideration of a healthy and appropriate environment during the assessment of potential resettlement areas. This is a critical element to protecting the rights to food, water, health, and housing. As an elaboration of the criteria listed above, assessment of air quality is another key consideration. The component elements of the right to water should also be factored into the site selection, including the availability, accessibility, and quality of the water supply. Water supply is critical for consumption, agricultural purposes, health outcomes, and may have significant consequences for the time and safety of women and girls, who typically fetch water.

 

Examples of other land-based environmental threats to evaluate during consideration of resettlement areas include: deforestation, desertification, and the presence of hazardous waste or pollution.

 

Article 20 – Data Collection and Analysis

m) the more vulnerable groups, elderly, households headed by women, widows and youths, shall be heard in order to guarantee their rights;

 

Article 20 provides a detailed list of the types of data collection and analysis that should inform the resettlement process, including information on the number of disabled people in a household.  Article 20 (3)(m) should be clarified to include identification and attention to the concerns of people with disabilities along with other potentially vulnerable groups.

 

Article 24  - Inspection

The resettlement process is subject to inspections carried out by the Environmental Inspection, without prejudice to other inspections in the light of specific issues.

 

Inspection and monitoring of the resettlement process should take place at all stages, for example to ensure proper public consultation and participation, including during the design, during the move, and after resettlement. The implementing guidelines that the government develops to elaborate further the resettlement decree may consider minimum requirements for the number and frequency of inspections. In large-scale projects or those that are controversial, the resettlement decree should stipulate that inspections or monitoring mechanisms also be carried out by a panel of independent experts.

 

 

 




[1]Conselho de Ministros. 2012. Regulamento sobre o Processo de Reassentamento Resultante de Actividades Económicas Aprovado pelo Decreto No 31/2012 de 8 de agosto, da Assembleia da República. Publicado no Boletim da República No 32, 1.ª Série, Suplemento. Maputo: Imprensa Nacional de Moçambique.

[2]Constitution of the Republic of Mozambique, 1990, arts. 11, 40, 59, 68, 84, 88-91.

[3]Land Law, No. 19/97 of 1 October, arts. 3, 9, 10.

[4]Constitution of the Republic of Mozambique, 1990, art. 82(2).

[5]Land Law, No. 19/97 of 1 October. Article 18(1)(b) on the Termination of the right of land use and benefits states, “1. The right of land use and benefit shall be extinguished….  b) By revocation of the right of land use and benefit for reasons of public interest, preceded by payment of fair indemnification and/or compensation.”

[6]Constitution of the Republic of Mozambique, 1990, arts. 82, 86-91.

[7]Ibid., 121-124.

[8]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Mozambique July 21, 1993; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, acceded to by Mozambique April 16, 1997; Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, acceded to by Mozambique April 26, 1994; African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc.CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, acceded to by Mozambique February 22, 1989. 

[9]Constitution of the Republic of Mozambique, 1990, art. 43. Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948).

[10]Human Rights Council, Basic principles and guidelines on development-based evictions and displacement, Annex 1 of the report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, A/HRC/4/18; UN Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions, and the right to adequate housing (Sixteenth session, 1997), U.N. Doc. E/1998/22, annex IV at 113 (1997), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 45 (2003); Commission on Human Rights, The Practice of Forced Evictions: Comprehensive Human Rights Guidelines On Development-Based Displacement, adopted by the Expert Seminar on the Practice of Forced Evictions Geneva, 11-13 June 1997, E/CN.4/Sub.2/1997/7 http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.Sub.2.1997.7.En?Opendocument (accessed August 14, 2012); African Charter on Human and Peoples’ Rights; African Development Bank (AfDB), “Involuntary Resettlement Policy,” Abidjan, November 2003 http://www.afdb.org/psdu/involuntary_resettlement (accessed August 23, 2012); Organisation for Economic Co-operation and Development (OECD), “Guidelines for Aid Agencies on Involuntary Displacement and Resettlement in Development Projects,” No. 3, Guidelines on Aid and Environment, Paris, 1992; World Bank, “BP 4.12 – Operational Policy on Involuntary Resettlement,” Washington DC, December 2001 (revised February 2011), http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUA..., (accessed August 23, 2012); International Finance Corporation (IFC), “Performance Standard 5 on Land Acquisition and Involuntary Resettlement,” January 1, 2012; and Inter-American Development Bank (IDB), Safeguard Policy on Involuntary Resettlement,OP-710, Washington DC, 1998.

[11]Article 48 (1): All citizens shall have the right to freedom of expression and to freedom of the press, as well as the right to information. Article 58 (1): Everyone shall have the right to claim compensation in accordance with the law, for damages caused by a violation of their fundamental rights. Article 79: Right of Petition, Complaint and Claim, All citizens shall have the right to present petitions, complaints and claims to the competent authority in order to demand the restitution of their rights violated or in defence of the public interest. Article 80: Right of resistance. All citizens shall have the right not to comply with orders that are unlawful or that infringe on their rights, freedoms and guarantees.

[12]For example, the World Bank’s BP 4.12 stipulates, “in the case of highly risky or contentious projects, engaging a panel of independent, internationally recognized resettlement specialists.”

[13]For example, the African Development Bank policy states, “Compensation at the full replacement cost for loss of lands and other assets should be paid prior to projects implementation with the view to improve the former living standards, income earning capacity and production levels of the affected population,” AfDB, Involuntary Resettlement Policy, executive summary, art. 8.  The Inter-American Development Bank resettlement policy states that “[t]hese measures must be taken in a timely manner to ensure that transitional hardships are not unnecessarily prolonged and do not result in irreparable harm,” IDB, Safeguard Policy on Involuntary Resettlement,OP-710, p. 4, v. 3 and

[14]This is a critical and standard provision found in all of the resettlement guidelines listed in footnote 10.

[15]For example, the African Development Bank Policy requires, “Agricultural or pastureland provided through land-for-land resettlement should be equal or better in quality, including access to safe drinking water and irrigation water for agricultural lands,” AfDB, Involuntary Resettlement Policy, p. 10, 4.1.7.

[16]The World Bank policy stipulates that displaced people should be, “(ii) consulted on, offered choices among, and provided with technically and economically feasible resettlement alternatives,” World Bank, OP 4.12, Annex A, Involuntary Resettlement Instruments, art. 6 (ii).

[17]The IDB, for example, says: “The resettlement plan will include the results of consultations carried out in a timely and socio-culturally appropriate manner with a representative cross-section of the displaced and host communities… Care will be taken to identify the most vulnerable subgroups and to ensure that their interests are adequately represented in this process,” IDB, Safeguard Policy on Involuntary Resettlement, OP-710, p. 4, V.2.

[18]“The displaced persons and host communities should be offered support after relocation, for a transition period that covers a reasonable period of time necessary for them to improve their livelihood and standard of living,” AfDB, Involuntary Resettlement Policy, p. 16, IV, 4.1.1.

[19]For example, the African Development Bank’s policy states, “The feasibility of holding separate women’s meetings and fair representation of female heads of households, in addition to mixed meetings should be explored. Also, the way in which information is disseminated should be cautiously planned as levels of literacy and networking may differ along gender lines,” AfDB, Involuntary Resettlement Policy, p. 10, III, 3.3 (b).

[20]In its resettlement guidelines, the African Development Bank states that “[t]he resettlement plan should include an explicit public information strategy. This would include the use of mass media, particularly radio and television, to advise the dates and times of public meetings, availability of documents, selection criteria, cutoff dates, and compensation measures…,” AfDB, Involuntary Resettlement Policy, p. 17, 4.1.3.