Free, Prior and Informed Consent: Why Communities Affected by Mining Should be Fully Engaged

“We were forcibly evicted and tortured by Uganda Police. We had to run for our precious lives, “

Hassan Serwaada, a Kasanda Gold Mining machinery operator, said in a community awareness dialogue. This dialogue was organised in the newly established Kasanda District by the Africa Freedom of Information Center (AFIC).

Many people in Uganda can relate to Hassan’s story. During the community dialogue, women, youth and people with disabilities highlighted problems they face including lack of community participation, forceful evictions, inadequate compensation, torture, among other challenges.

In spite of being essential to extractive projects, there is a lack of respect for community participation.  Communities often wake up to news about the establishment of a factory on their land. Kato Ahmed, another victim of strong evictions, said that they had to vacate without adequate compensation or compensation. He noted that, if consulted competently, they would be willing to offer their land to the Government.

Community participation in the early stages of any project that may affect other people’s rights is crucial according to various doctrines and international treaties, such as the African Charter on Human and Peoples’ Rights, to which Uganda is a signatory. Communities have a right to the use and disposal of natural resources, but their rights to the governance of natural resources have been denied.

Despite legal safeguards and guarantees, lack of access to information and awareness of their rights have increased the risks and occurrence of the exploitation of ordinary people by connected individuals and powerful companies. Security organs help these well-connected individuals drive ordinary people out in hoards. People fighting back face torture. Some have lost their lives and property

A high court judge recently ruled in Mubende District that over 3,000 people were tress-passers in “their land.” In 2018, one George Kaweesi expelled the said victims from their 323-hectare piece of land covering five villages. This case is just one of the country’s many examples of forceful eviction.

Mineral discovery leads to uncertainty in the communities concerned.  Locals were made to believe that minerals belong to the state, so once minerals are discovered, they’ must’ look for alternative places to live or risk being expelled without consent or fair compensation. The key question everyone should ask themselves is, should mineral discovery on one’s land deprive him / her of the right to that piece of land?

The right to land and natural resources for African citizens is guaranteed under Article 21 of the African Charter on Human and Peoples’ Rights which holds that “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people”. The Charter further obliges state parties to ensure that citizens are entitled to legal property recovery and adequate compensation where disposition occurs.   

In Uganda, the existence of a mineral right in itself does not extinguish the rights of a landowner or any other landowner. Article 244 of the 1995 Constitution of the Republic of Uganda provides that minerals and minerals shall be exploited in the interests of individual landowners, local governments and Government.

Neither Uganda’s Government nor individuals own minerals. The Mining Act, 2003 is to the effect that the Government controls all minerals in Uganda, despite any right to own the land in which those minerals are found. This means mineral wealth is invested in the state to benefit all Ugandan citizens. Accordingly, Article 244(2) of the Constitution implies that the interests of affected persons should never be set aside; free, prior and informed consent forms those interests.

The right to Free, Prior and Informed Consent (FPIC), a standard of the international human rights law is one of the most potent instruments in protecting communities from the devastation caused by the extractive industries projects. Communities have the right to freely consent to a project on their lands, including during mineral exploration before it begins. For it to be meaningful, consent must be given free of pressure and manipulation from Government or industry (these usually have the potential to exert significant influence), prior to any activity that may impact the environment or social well-being of a community, and must be informed— that is, with sufficient information provided in a region’s native language, such as the communiqué. This means communities are entitled to know what is being proposed, and they are entitled to say no.

While the United Nations Declaration on the Rights of Indigenous Peoples and the International Labor Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples affirms these rights most clearly, they derive from existing international law. States have a duty, and under international law, companies are responsible for consulting and cooperating with indigenous peoples through their representative institutions to obtain their free and informed consent. This should occur before any project affecting their lands or territories, and other resources are approved, particularly in connection with the development, use or exploitation of mineral, water, or other natural resources.

According to the UN Declaration on the Rights of Indigenous Peoples, States must also provide effective mechanisms for fair and equitable redress for any such activity, and appropriate measures should be taken to mitigate adverse environmental, economic, social, cultural or spiritual impacts.

African regional institutions have also significantly advanced the right to free, prior, and informed consent and do not limit its application to indigenous peoples. In May 2012, the African Commission on Human and Peoples’ Rights (ACHPR) at its 51st Ordinary Session adopted ACHPR/Res.224 (LI) 2012 on a Human Rights-Based Approach to Natural Resources Governance calling on State Parties to “confirm that all necessary measures must be taken by the State to ensure participation, including the free, prior and informed consent of communities, in decision making related to natural resources governance.”

It further provided that;

Respect for human rights in all matters of natural resources exploration, extraction, development and in particular ensure independent social and human rights impact assessments that guarantee free, prior and informed consent; effective remedies; fair compensation; women, indigenous and customary people’s rights; environmental impact assessments; impact on community existence including livelihoods, local governance structures and culture, and ensuring public participation; protection of the individuals in the informal sector; and economic, cultural and social rights.

The African Mining Vision, adopted by the African Union in 2009, aims to uplift the lives of ordinary Africans like Hassan Sserwadda by ensuring a “Transparent, equitable and optimal exploitation of mineral resources to support broad-based sustainable growth and socio-economic development.”

However, the firms have consistently failed to secure free, prior, and informed consent from local communities before starting operations on their lands. Uganda’s central and local governments have not insisted on this international standard. Companies have promised benefits to communities, including schools, hospitals, boreholes, jobs, scholarships, and money for compliance. But exploration work has often continued, and communities are still seeing the promised benefits that should help mitigate current and future land-use loss, livelihood, and other impacts.

 Some national laws and constitution guarantee free, prior and informed consent to a people like the Mineral and Petroleum Resources and Development Act (MPRDA) of South Africa. Based on the above the law, the October 2018 Constitutional Court ruled in favour of affected communities arguing that they had a more significant say in mining decisions. The court noted that:”… to strip somebody of their livelihood, then strip them of their dignity.”

Although cabinet passed the Minerals and Mining Policy, early in 2019, we are yet to see its actual implementation. The said document seeks to adopt an open policy on information sharing to the public and seek free prior informed consent of landowners, communities and local governments concerning prospecting, exploration, development and exploitation of mineral resources.

It is sometimes argued that compulsory acquisition of property or eminent domain precedes free, prior and informed consent. On the contrary, compulsory acquisition laws, like all other laws, must respect human rights including free, prior and informed consent rights of indigenous peoples.

While the Ugandan Government is primarily responsible for carrying out these consultations and preventing works without community consent, businesses also have a responsibility to respect these and related rights. As the UN Special Rapporteur on Indigenous Peoples ‘ Rights stressed, “Companies should conduct due diligence to ensure that their actions do not violate or be complicit in violating the rights of indigenous peoples, identifying and assessing any actual or potential adverse human rights impacts of a resource extraction project.”

Access to information and citizens ‘ awareness of mining rights makes a big difference. Citizens need the information to decide how their governments are run, and above all, to hold their leaders accountable. Without information, citizens can never improve their lives. Through the AFIC community awareness session, citizens could understand that they have the right to participate in development projects that affect them; free, prior, and informed consent should be obtained before any project

To mitigate the adverse conditions of Hassan Sserwadda and thousands of other Ugandans affected by mining and mining activities, Africa Freedom of Information Center calls on the Ugandan Government to fully implement Free, Prior and Informed Consent principles that will give people a real voice and ensure that resources are exploited for their development.

Also, the Government should ensure that companies carefully and meaningfully prepare human rights impact assessments to analyse the consequences of their work.

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