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Consent and Protection of the rights of land owners by State functionaries in rural Sierra Leone: Maintaining a Critical Balance

By THOMAS DAVOWA

The subject of Land and its management continues to occupy Centre stage in Sierra Leone’s development dialogue and based on available evidence of the enormity of the challenges in this sector (land), the discourse shall remain to feature prominently among others as constraining factor for sustained national development. It is perhaps as a result of the consequencies of the land management issues that national and international interest in advocating for sanity and mechanisms for improved land tenure governance continues to be of concern to academics, development practitioners and other segments of the society in countries which are likely to take on huge consequences with Sierra Leone not being an exception.

There is an abundance of literature on the need for developing Countries like Sierra Leone to strike and attract Foreign direct investment (FDI) as a necessary condition for the promotion of national growth and development, and this argument of FDI stimulating transformation in the country has over time been seen by the citizens as a route which Government’s must embark on if they are to create jobs and by extension wealth and improvement in the lives and living conditions of their citizens. This seeming over reliance on ‘’ stimulus for development and wealth creation from abroad’’ has in several instances tended to cloud rational judgement of State actors when addressing concerns around land management especially in Sierra Leone.  This Think piece seeks to present an argument that development is always a welcome phenomenon in every community, but that the Rights of community members as Land owners  is never the less much more paramount. In the context of the on-going debates about large scale land acquisition in Sierra Leone and the need for FDI promotion resulting into the appropriation of large tracts of land as leases,  it  must be recognised that  fundamental issues such as the Right to ownership of land owning families as well as seeking their free, prior consent should be tabled for discussions before Government and other power and authority wielding authorities could even negotiate any form of land leases and for whatever explanation be it to promote development or to serve the Public good.

The irrational  conduct of most public officials working in concert with agents of Foreign investors as well as the complicity of  traditional and community leaders in the ‘’ allocation  of individual, clan and family lands’’ has brought to prominence the need to reflect on the place and role of the major land acquisition determinant of  ‘’ consent’’. There are issues around the factors which prompt the actions for land acquisition, the approaches, the beneficiation considerations and the observance of due process. This is all done against the back drop of ascertaining whether State actors at all levels have been entering into land arrangements on the principles of fairness and whether their individual and collective actions could pass the due diligence litmus test based on international best practice.

There is need at this point of the discourse to further interrogate the issue of consent, its meaning, observance and current practice in Sierra Leone in relation to land management weighed against the principles contained in the VGGT concept.

There are basic Rights which individuals are entitled to in any society and one of such is the Right to property ownership, use and disposal and any attempt to deny any individual of such Rights is considered as a major travesty which often meets with not only condemnation but even stiff resistance especially when the deprived is aware of his or her Rights. There is a common notion in Sierra Leone that Land is not owned by individuals but by families, clans and wider communities and such views have often tended to support denial and in extreme cases deprivation of individuals and groups of their Rights to land which they believe belong to them by inheritance and or through gifts and in other cases purchase. In whatever the circumstances, where Land is believed and recognised to have been owned ‘’ legally’’ –  through a means that is recognised by law, custom and tradition, any action(s) geared towards taking it over should be subject to free, informed prior Consent.

In the exercise of free, informed, prior consent, the individual or group voluntarily cedes the parcel of land to other parties for whatever purpose(s) they have agreed upon necessitating the transfer of ownership or use.  One of the key features in exercising Consent is that the individual should be provided with all the material facts necessitating action(s) that will result in h/her having to cede the land in question to another party under agreed terms and conditions that should be acceptable to all parties. In many instances, one of the main sources of tension and disagreement in land deals is the denial of opportunity for Consent to be exercised. This piece is concentrating on the central role of Consent in order to make a case for Government and its auxiliaries such as Local councils and Chiefdom administration to give due attention to Consent in all their dealings related to Land management which involves taking over or requesting transfer of land from individuals and or land owning families for reasons such as Community or national development. In cases where there is demand or need to meet some community or national development aspirations, there is the common practice of identified land being taken over without consent, often without adequate family or clan consultations being allowed and often without adequate compensation. The VVGT concept will denounce such practices as falling short of meeting the recognised threshold for responsible land tenure governance and if such issues are not addressed it may have implications for the Country’s overall governance ratings linked to observance of citizen’s rights.

 

It is important at this point in this treatise to detail out the prevailing situation in Sierra Leone with respect to how the ownership of land is often affected in contravention of principles contained in the VGGT Concept and which could also result in violation of the Rights of affected Persons. There are legal explanations in Sierra Leone that ‘’ things and substances beneath any parcel of land belongs to the State and by extension to the Government”. This explanation have often tended to provide broad latitude for the Community and State actors to enter into arrangements for the acquisition of large portions of land, originally owned by individuals and families with the explanation that such lands are required to support Public good often referred to as investments leading to development of a community or part of the Country.

In the last 20 years in Sierra Leone, there has been a lot of pressure on individual and community lands mostly in response to the Country being targeted by Multi-national corporations (MNCs) for launching Foreign Direct investments (FDIs) in various sectors but principally so in the Mining and agri-business sectors of the Country. The drive by Governments ( past and present) to be seen promoting national growth and development have witnessed the preparation of various forms of policies, regulations and guidelines all geared towards encouraging and promoting investment in Sierra Leone, and in many instances these policies and instruments have tended to provide more flexibility and advantages to the in-coming investors geared towards encouraging them to come in and invest and in so doing some basic rights of citizens ( especially Clans and Communities) regarding land owning and tenure have been seemingly compromised. This piece is again positing that, investment could be welcome but the Government and other State actors should be mindful of core principles contained in the VGGT concept and ensure among other things that Consent is central to all the discussions for land to be made available for the incoming investors. There should also be another cardinal consideration which is to ensure that the land for investment needs  and Community or national development is also balanced against the individual and community land needs to support Life and their livelihoods as Land for most community people is the basis of existence – homes, farms, sources of acquiring traditional medication, cultural sites etc.- are all land based and any removal without full and comprehensive discussions to make alternative arrangements as well as seeking consent will be seen as ‘’ infringement on Rights’’ of usually vulnerable citizens who could hardly unaided bring any action for redress to bear on the Government and the State.

In Sierra Leone today, there is so much emphasis by Government and to some extent even the leadership of Communities on land for development – mining, agri-business, quarrying, infrastructure etc. to the extent that it could be argued that such concerns about bringing ‘development’ has in many instances taken primary consideration over preservation of the Rights to ownership and support of livelihood for which land and often prime and fertile plots are required by the citizens.

This seeming ‘ clamour for development’ is taking place almost across the entire country in Sierra Leone to the extent that even international principles and practices set out not only by the VGGT Concept but even multi-lateral agencies regarding ‘ reasons and manner of acquisition and displacement of persons’ are hardly given due considerations. There are protestations in many communities and most of these centre around notions of unfair treatment in the acquisition of land, the use of deceit and deception involving agents of the Government and the investing parties etc. These feedback often from affected parties directly and also gathered from articles in newspapers and researched publications mostly tend to raise the issue of lack of focus and or regard to the issue of Free prior Consent of the parties that are affected by the national or community push for development which is often perceived to come through Foreign Direct Investment.

The current Land management situation in Sierra Leone requires some serious rethink by both State and non-State actors and there have been some good work done to date with active engagement of CSOs like Green scenery, Namati etc.  and the alliance of CSOs known as ALLATworking in concert with the Government of Sierra Leone and numerous Development Partners. There is however very urgent need for more robust actions to be taken if Sierra Leone should continue to be considered as notable in advancing the mainstreaming and rolling out of the VGGT Concept. There is need for a review of Policies, guidelines, bye-laws and practices to ensure that a good balance is struck between: – meeting the minimum threshold to confirm that Consent is always given- land for investment is identified and land owning families have adequate access to land to support personal and livelihood needs. This in itself will bring more credibility to the nation’s efforts at promoting investment and development, it will propel individuals and communities to fully support and collectively further the development aspirations of the Government, local authorities and the investors. The incidences of social unrest will be minimised and loss of assets and lives also contained within substantial limits. On the flip side, if the issues raised around Consent and striving to strike and maintain balance between investor Land requirements and the citizen’s needs for land are not prioritised and given all the attention by the key national and community actors, Sierra Leone will miss the opportunity of being counted among nation States that are meeting acceptable international benchmarks and standards as mostly articulated in the VGGT Concept with regards to responsible tenure of land governance in the World.

The writer of this piece is not oblivious of the potential hurdles that the State and non-state actors will encounter in their drive to respect consent, satisfy the requests from investors while also taking great care of the Land owners. There will always be explanations such as ensuring that the Government could raise adequate revenue to support its programmes, Government does not have all it takes to improve infrastructure, create jobs, wealth and provide all the required Social services etc. These are great and strong arguments, this writer however is of the conviction that there are Countries which share similar socio-economic and even cultural orientation and in almost similar state of development that are striving to ensure that a fine balance ( between investment requirements and citizens land needs) are maintained. In the case of Sierra Leon, an opportunity avails itself and this is by the Government taking advantage of the on-going enthusiasm and popularisation of the VGGT Concept (which has strong international appeal) to mainstream it into the draft Land policy and the several regulations and guidelines supporting Land tenure and management in the Country, in so doing, international best practice would not only be adopted and domesticated, but also the citizens would realise that the Government is listening to their concerns and is taken appropriate remedial actions.

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