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KASIMA CASE

Kasima community after court session

 


 


Kasima community during petition

 

 



 

Zambian law provides clear procedures, under section 3(4) of the Lands Act, for land held by customary tenure to be compulsorily acquired or alienated. This includes taking into consideration the local customary law on land tenure; consulting the Chief and the local authority in the area in which the land to be alienated is situated; and consulting persons whose interests are affected. As a rural traditional community living on customary land, they also have the right to free, prior and informed consent prior to their resettlement and the extraction of natural resources in their area, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples. Zambian common law also requires that evictions should be conducted by way of court order, with the opportunity for judicial remedies. 


Article 16 of the Zambian Constitution also provides that adequate compensation shall be paid for compulsory deprivation of property. As state parties to the African Charter on Human and People’s Rights (ACHPR), Zambia is also obligated to protect the rights of dispossessed people to the lawful recovery of their property as well as to adequate compensation (Article 21). The ‘State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment’ confirm that ‘reparation in ‘case of spoliation’ for ‘dispossessed people’ takes the form of restitution or compensation.’ ‘Peoples affected by land dispossession should be provided both with full, effective, fair and adequate compensation and support for rehabilitation. Such compensation has to be made available prior to the removal of such peoples from their land, has to be determined in consultation with the affected people, and should not in any way make their living conditions worse off.




In contravention of these rights, the Kasima community’s customary land rights were not considered; they were not adequately consulted; they did not consent to their evictions or the installation of boreholes and extraction of water in their area; no court order for the evictions was obtained; and no compensation has been paid. 


Numerous other fundamental rights protected in the Zambian Constitution (as well as the International Covenant on Civil and Political Rights (ICCPR) and the ACHPR) have also been violated by the violent eviction — including the rights to personal liberty (Article 13), protection from deprivation of property (Article 16), protection for privacy of home and other property (Article 17), protection from inhuman treatment (Article 15), protection of freedom of expression (Article 20), protection of freedom of assembly and association (Article 21), protection of freedom of movement (Article 22), and protection from discrimination (Article 23). 


The community’s economic, social and cultural rights, protected in terms of Zambia’s obligations under the International Covenant on Economic Social and Cultural Rights (ICESCR), including their rights to an adequate standard of living with adequate food, and housing (Article 11), and to the enjoyment of the highest attainable standard of physical and mental health (Article 12) (also protected in Article 16 of the ACHPR) have also been violated. The deprivation of the community’s access to their homes and agricultural plots; and to communal water, sanitation, food, health, and educational facilities, is in clear violation of these fundamental rights.




The implementation of the water extraction project without consideration of the rights and interests of the very stakeholders it is meant to serve, violates the community’s constitutional rights to a safe and healthy environment, to sustainable development, to protection of natural resources, and to public participation in the utilisation of natural resources (Articles 256 - 257). It also violates peoples’ rights protected in the ACHPR: to a general satisfactory environment favourable to their development (Article 24); to the disposal of natural resources in the interest of the people (Article 21.1); and to economic, social and cultural development with due regard to their freedom and identity and in the “equal enjoyment of the common heritage of mankind” (Article 22). 




In interpretation of these rights, the ACHPR ‘State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment’ provides that ‘the use of natural resources should be for the … benefit of the citizens of a State in general and host communities in particular… the rights of the people of the State as a whole may not detract from the specific rights of affected people who are directly impacted by extractive industries to benefit from the exploitation of natural resources.’ ‘Peoples’ and individuals are … entitled to live on, access, develop and use the land, vegetation, water sources and the aquatic resources on which they depend for their survival and livelihoods.’ ‘[T]he principle of sovereignty and ownership… bars the non-participation of affected people in the development processes (involving the use of natural resources) and the exclusion of affected people from material benefit accruing to them.’ Finally, Articles 21 and 24 of the African Charter specifically guarantee the ‘participation of affected people in all decisions relating to the exploration and use of natural resources.’ 

The exclusion of the affected community in the decision to exploit water resources in their area, and to violently evict them from their land without compensation, is in gross contravention of their rights. While it may be in the public interest to proceed with the project, this can only be determined in consultation with, and with the consent of, the affected communities; and must be implemented with due adherence to the community’s rights, including to full, effective, fair and adequate compensation.


FIAN Zambia defended the community by holding government accountable, engaging the UN human rights mechanism, the ACHPR and finally the Zambian Judiciary. Outcomes of the case were in favor of the community who have been compensated for their land and dwellings.

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