RAILWAY and mining developments in the Tete province of Mozambique have been heralded by many for delivering economic growth and prosperity, as well as the promise of a brighter future for the country.
However, there is a dark side to Mozambique's economic boom. Protests from local residents forced to leave their homes to make way for mining projects have been common in the past few years, with the general complaint being that mining companies have not delivered on their promises to share wealth with local people.
Brazilian mining giant Vale in particular has come under attack. Between November 2009 and April 2010 the company resettled hundreds of households from the area surrounding its mining concession around Chipanga. While many households refused to move and sought monetary compensation, which was not forthcoming, those that did found that they were moving into sub-standard accommodation that often lacked proper foundations, suitable roofs and adequate structures.
The dissatisfaction felt by many was subsequently expressed through the local government. But with no resolution in sight, it soon spilled into protests. Around 500 people blocked the road and railway to Moatize from Cateme for 24 hours on January 10 2012, while similar protests were reported in May 2013 when brickmakers blocked traffic on the Sena Railway line complaining that their resettlement had cost them their ability to make a living.
Their claims are backed up by independent action group Humans Rights Watch, which in a 2013 report stated that farming communities resettled on arid lands are now suffering from "serious disruption in their access to food, water and work." It added that not enough has been done to implement irrigation schemes and provide assistance to families as promised, pointing the finger at companies like Vale and Rio Tinto, as well as the government.
Vale welcomed the report, praising it for communicating with the companies involved, and responded by saying that it is taking steps to compensate families fairly, improve housing, and irrigation and farming yields. This view was echoed by the company's president and CEO Mr Murilo Ferreira during a visit to Tete in January, where he outlined the company's "long term vision" for Mozambique.
"We want to see in each kilometre of railway a new opportunity from which companies and people can enjoy the benefits of our projects," he said. "We don't want to create an activity from which we emerge victorious and the population of Mozambique does not benefit. It should contribute to the development of the country."
Waking up
While Vale appears to be finally waking up to the seriousness of developing suitable relations with the public, in its public pronouncements at least, Rift Valley Railways (RVR), which signed a 25-year concession agreement to operate the railway, puts this among its core business activities.
Alongside freight transport (including marine activities), long-distance and commuter passenger transport, and intermodal logistics, it says its mission is to "transform lives in Africa with every move." It aims to "ensure that our customers' needs for transport and logistical solutions will be met in a sustainably efficient and safe manner and with the utmost respect to our employees, the environment and communities that live around our operations, and that we will do so profitably to guarantee a healthy return on investment for our shareholders."
Railways like RVR and those being built by Vale in Mozambique can certainly deliver social value and promote economic growth, but projects in Africa face formidable challenges to deliver benefits to communities affected by railway development. As we have seen, where community rights are overridden or simply not catered for, developers, including railways, risk opposition and even violence.
These difficulties are not necessarily the result of corruption at government level, but stem in part from the complex and often undocumented forms of land ownership, and communal and tribal rights over land.
While each customary or communal rights regime is distinctive to its community, there are common themes across Africa:
• community-based jurisdiction over landholding and land use, often extending over large areas of land
• collective ownership or possession and control over naturally communal resources such as forests, rangelands or marshlands, and
• the tendency for the periodical adjustment in the size of customary territories so that they remain at the scale at which community-based control is effective.
Identifying and dealing with these rights is a major challenge for rail developers because they are generally not documented. As a result it becomes very tempting to plan routes around rather than through areas which may encounter these issues. However, engaging with communal land rights and providing practical and economic benefits to communities is a highly effective way to secure support and enthusiasm for projects, which will result in an optimal engineering solution.
Issued in 2013, Securing Africa's Land for Shared Prosperity is a co-publication by the World Bank and the Africa Development Forum. At the core of its argument is the understanding that inadequate systems used to determine and administer land rights severely affect productivity and lock African countries into poverty.
Although there has been progress, such as the establishment of Kenya's National Land Commission in 2012, most African countries still use land administration systems inherited at colonial independence, along with antiquated survey and mapping techniques. One consequence of this is that only 10% of Africa's rural land is registered, with the remaining 90% undocumented and informally administered, which makes it susceptible to land grabbing, expropriation without fair compensation and corruption.
Community land rights have specific constitutional protection in a number of African states, including Kenya and Uganda. However, translating constitutional form into real protection depends on documentation of title. A key recommendation in Securing Africa's Land is the use of satellite mapping techniques and data, or large-scale aerial orthophoto maps, to chart the boundaries of parcels of land subject to communal rights.
Registration of communal rights provides a documented basis for contact and negotiations between infrastructure projects and the affected communities. It also offers a recognisable legal basis for payment of compensation in a form that reaches communities rather than going into general government coffers, with the attendant risks of corruption, and for legally binding obligations that protect productive land use.
Where initiatives involve project finance or debt-funding from a lending institution that subscribes to the Equator Principles of due diligence in responsible risk-decision making, project promoters are required as a condition of funding to put in place measures to engage with affected communities and to provide an effective dispute resolution scheme. However, while laudable, it can be extremely difficult to deliver these objectives unless there is a reliable way to identify community bodies or individuals with the standing to speak and negotiate for the community.
Registration of communal land rights can address this problem. And by working with communal groups legitimised by documented title, railway projects might credibly become "steel ribbons," promoting connections between regions and fostering economic growth, rather than "steel barriers" cutting through and disrupting land rights and land use.
Registration of community and tribal rights over land potentially offers railway and other infrastructure projects a viable route to meaningful engagement with communities affected by development. However, there is a risk that community rights might be regarded as a primitive precursor of individual ownership and control of land.
Once areas have been registered, even if registered as land subject to community rights, the administrative process of subdividing that land into individually-owned parcels becomes considerably less difficult. Perhaps ironically, formalisation and documentation of land rights potentially creates circumstances in which those rights can be supplanted by individual title. In response to that threat, some countries have made it possible to register customary rights without being extinguished and replaced by individual tenure. Consequently, in countries such as Mozambique, Uganda and Tanzania it is possible for the same area of land to be subject to different registrations. That possibility must be taken into consideration when seeking to acquire land and rights for rail projects on a basis that minimises the risk of future challenge and unrest.
Experience in several African countries, notably Ghana and Uganda, also indicates the difficulties, disputes and delays that can arise from a system of registration that seeks to establish fixed boundaries. Precise fixing of boundaries tends to cause dispute rather than prevent it, with the potential to increase the complexity and cost of land access for railway and infrastructure projects. Furthermore, any perceived transition from community rights to individual title may well become in themselves a source of conflict and civil unrest.
Africa's rail projects are extremely ambitious in scale and scope. The Mombasa - Kigali scheme promises a 2953km link between Rwanda and Kenyan port facilities. RVR is involved with a mixture of long-distance and gap-filling routes, with current projects including 73km of new track between Mombasa and Nairobi to improve the speed and reliability of freight services, the rebuilding of over 360km of track as part of an upgrade to improve the track geometry and safety on previously under-invested lines, and rehabilitation of the main line from Mombasa to Kampala.
Given the scale of development, and the need to negotiate with and accommodate landowner and communal rights, rail projects offer exceptional opportunities to accelerate and secure documentation of rights in large areas of Africa. Positive identification of communal rights, and of the groups or individuals with the standing to represent and speak for communities, reduces the risks of challenge and delays to key projects. It also makes it possible to put contractual provisions in place that will direct the benefits of development, such as local employment opportunities and access to rail services, to the communities directly affected by the scheme.
The interaction between customary or communal land rights and more formal individualised title to land across Africa is an extremely complex issue. Low levels of documentation and the often-fluid relationship between customary laws and norms, statute and constitutional protections mean that investigation and due diligence for rail projects can be a complex and lengthy process. However, investing time and effort to identify and engage with all relevant interests can pay huge dividends and give reality to mission statements like that offered by RVR.
