By Sonkita Conteh, Director, Sierra Leone Program, Namati
Three years ago I wrote about how communities in Sierra Leone were getting the short end of the stick in large-scale land transactions. Many did not understand the provisions of the complex lease agreements they were signing. Not only are these leases legally complicated, they are sometimes signed under pressure and are not always translated into a community’s local language.
Since that time, we have witnessed some encouraging improvements in the land-leasing process. Hopeful changes in national policy and a steady increase in local activism have empowered communities to better understand and exercise their rights to communal lands. The problem that persists, however, is the power imbalance these communities face every time they enter into a negotiation with developers. Where the companies have money, lawyers and political allies, communities can find themselves without protection when contracts are violated or their lands are destroyed by industrial uses they scarcely knew they had agreed to.
I remember a Friday evening in 2013 when landowners from a village called Pan House in the north of the country urgently reached out to Namati’s office in Freetown. They needed help understanding the terms in a draft of a fifty-year lease for a thousand acres of land. The foreign-owned rice company wanted the agreement signed in two days and was coming to the community on Sunday to pay the first year’s rent of $5 per acre. The land to be leased included the village’s entire supply of arable land, some of which was being farmed exclusively by the village women. The women had no knowledge that they were about to lose their farms. Some of the landowners who were familiar with Namati’s work on contract negotiations asked for help in examining the specific provisions of the draft lease.
The document, as one might expect, turned out to be very good for the company and potentially disastrous for the village. For example, it would allow the company to mine sand from the river bank for construction, free of cost. The company could also take a further ten acres of land to construct its base camp and would be entitled to remove any buildings, structures or vegetation in the leased area without providing any compensation to the owners. The document further specified that the company would be entitled to “stop or alter the course of any watercourse” - a provision with the potential to change the landscape for generations to come. Finally, the lease gifted the company “a reasonable period” to rectify any breach of contract -- including non-payment of rent -- without ever defining what constituted a “reasonable period”. By the terms of the lease, the community could get stuck waiting years for their rightful compensation.
What happened to the villagers in Pan House is not at all uncommon — it is the rule, rather than the exception. Communities are often under pressure to conclude deals they do not fully understand and which do not safeguard their rights and interests. A perusal of registered large-scale land leases in Sierra Leone reveals many disturbing provisions, the details of which may not have been fully comprehended by the communities and local leaders who signed them. In one notable example, a company appropriated “villages, rivers, forests and all other forms of the environment” for its exclusive use. There was an angry outburst and wailing when paralegals read and explained this particular provision to a community affected by the lease some four years after it was signed. Community members had copies of the agreement under their beds, but because it was never translated into their local language they couldn’t read or understand the terms. No one from the company bothered to explain to them that they would be giving up, for the next half-century, some of their most valued assets and the source of their livelihood - for just $5 USD per acre.
Change, however, is in the air. Over the past several years, a small band of grassroots advocates has been helping communities secure progressively better arrangements with investors interested in their land. Supported by public-interest lawyers, these community paralegals ensure that communities understand and have a voice in the content of large-scale land agreements before they sign them.
In 2016 alone, paralegals worked with more than 85 communities involved in land contract negotiations. The result is that more equitable and socially responsible land lease drafts are being agreed to, with the full participation of those affected, including women and the youth. These “new generation” agreements go beyond the inadequate minimum provisions of the Provinces Land Act, the law widely used by companies to acquire land in rural areas. Instead, the new agreements incorporate international standards such as the Convention on Persistent Organic Pollutants, the Convention on Biological Diversity, the Roundtable on Sustainable Palm Oil, and the Principles and Criteria for Sustainable Palm Oil Production, among others. In doing so, the non-binding standards of these international instruments can become enforceable against companies who fall short.
Risks identified by environmental impact assessment reports are also factored into these new agreements, especially risks related to water, soil pollution, and deforestation. Provisions that give corporations unfair, exclusive access to common resources like water are now being replaced by ones that guarantee sustainable, shared use. Additionally, corporations often make verbal promises of development, such as building schools or clinics, when cajoling communities to give up their land. These promises are now being captured with specific contractual language, making them legally enforceable.
In some instances, not everyone in a community is keen to turn land over to investors. Community members who do not want to lease their land are offered paralegal support so they can keep their land without fear of a backlash from political or traditional authorities. After all, one important test of land ownership is the ability to say “no” to an investment even in the face of more powerful interests.
Most large-scale land investments profoundly affect the community as a whole, not just those whose lands are acquired. Getting everyone in the community involved in contract negotiations is a demanding but worthwhile process. Paralegals can help navigate this challenging terrain, traveling to far-flung locations and helping communities organise into smaller, representative units to facilitate communication, participation, and internal accountability. For contracts that are meant to last for fifty years and cover thousands of hectares of land, this level of engagement and detail is difficult but necessary.
Communities take this negotiation process seriously, too. For example, in July of this year, over 250 community members from a chiefdom in northern Sierra Leone gathered under an ancient mango tree for four hours to discuss the terms of a proposed lease with paralegals and lawyers. They were completely dedicated to the process, seeking clarification, objecting to clauses and adding new ones. Women, men, the youth and elderly all made their input.
As communities get more involved in the land leasing process, some companies are beginning to see the value of this responsible approach to large-scale land investments. Issues that may lead to disruptive conflicts in the future, such as development promises or use of commons are addressed in a transparent way at the start. Currently, more than half a dozen agri-business corporations are working with our paralegals to improve land contracts.
This community consultation process needs to become the norm rather than the exception. But while community paralegals are riding their bikes through rugged landscapes and crossing flimsy palm bridges to support communities as they negotiate with investors, some high-level standard setting is also required.
Steps are being taken in the direction of such a systemic change. In March, the government launched a comprehensive national land policy, which seeks to overhaul the country’s “chaotic and unsustainable” land sector. The policy, which has been praised by the Food and Agriculture Organisation, the United Nations Development Programme and local civil society, as progressive, aims to address power imbalances between landowners and investors by ensuring that communities have access to independent legal and paralegal assistance during negotiations. This independent assistance would be financed through a basket legal assistance fund to which investors would be required to contribute. Structures for the fund need to be in place quickly to guarantee access to independent legal services for communities.
Equally, there is a need for improved, mandatory guidelines on the terms and processes of large-scale land transactions. These guidelines should reflect the lived realities of communities targeted for investment and should incorporate the best local and international industry practices. The guidelines should set clear requirements for seeking prior, informed consent of communities and should stipulate that contracts must address important environmental, social, and health concerns within the affected community.
It is unrealistic to assume that these matters could be adequately addressed by adopting good faith voluntary standards, which are not as easily enforceable as contracts between companies and communities. Responsible corporate behavior is key to sustainable development of the country’s land resources, and robust contracts between corporate players and those directly affected is a necessary first step. But we must also acknowledge and address the persistent power imbalance that exists between well-financed, global companies and what are often traditional agricultural communities. These communities must be formally brought into the process, empowered by a knowledge of the law to have a say in what becomes of their lands. This may require long hours spent under mango trees and in policy meetings, but for agreements that can last a lifetime, we need community paralegals and a land policy that will protect communities’ rights and uphold their interests.
Sonkita Conteh is the Sierra Leone program director for Namati, an international organization dedicated to putting the power of law in the hands of people.
This blog was originally published on Place by the Thomson Reuters Foundation.