THE governments of Lesotho and South African last week approved the Lesotho Highlands Water Project (LHWP) Phase II Compensation Policy, giving project implementers the go-ahead to appoint consultants and contractors to assist with the execution of the policy.
The approval came at a time when the LHWP’s implementing agency, Lesotho Highlands Development Authority (LHDA), had been under fire for allegedly ignoring the “legitimate” demands by Mokhotlong communities that will be affected by the construction of Polihali Dam envisaged to commence in 2019.
In this wide-ranging interview, LHDA Polihali Operations Manager Gerard Mokone talks to Lesotho Times (LT) reporter Pascalinah Kabi on the significance of the Phase II Compensation Policy approval among other issues.
LT: Is it true the Lesotho and South African governments approved the LHWP Phase II Compensation Policy?
Mokone: The Phase II Compensation Policy was finally approved following a very long process of engaging various stakeholders during its preparation.
The approval means we now have to disclose it to the people and engage them.
LT: What does the policy entail?
Mokone: We started with a draft that was prepared by LHWP. Our basis for preparing the draft before we could go out to the stakeholders was to address the Phase II Agreement which states the Phase I Compensation Policy must be used as a basis for developing the Phase II Compensation Policy.
This was because we were supposed to look at the lessons learnt during the Phase I implementation, particularly on social and environment issues – specifically on compensation and resettlement issues.
The policy took into consideration Phase II’s feasibility study results. We also consulted the environmental experts’ panel who help us with their in-depth knowledge based on global experiences in the field of compensation and resettlement.
We also looked into some of the principles provided by the World Bank as they deal with compensation and resettlement issues.
The draft further looked into new laws in this country which were not put into place after Phase 1 was completed. The policy is guided by the involuntary resettlement principles which seek to minimise land acquisition and resettlements to ensure that the negative impacts on the affected people are avoided or minimised.
Our understanding is that resettlements have both positive and negative impacts. It is also important for LHDA to inform people about the project. We will ensure the affected people participate in the planning and implementation of the project as much as possible.
The objective is to improve the livelihoods of the affected people, but where we fail to do that, we will ensure by all means possible we at least restore their livelihoods.
Another challenge we had in the past, and which we are going to address in Phase II, is the prompt provision of compensation for the loss of assets attributed to the project.
It is critical to ensure the affected people get their compensation on time. We will also work hard to ensure sites are identified for the provision of housing support (residential), replacement housing or monetary compensation.
The affected people will help us identify areas they would like to relocate to. We don’t compel people to move to certain areas. Yes, the project would have identified resettlement or relocation sites. But those are chosen in consultation with the affected households.
We intend to develop such areas in terms of roads construction, water and sanitation services. It is also the choice of each household to move out of Mokhotlong district, but we strongly advise people against moving to Maseru. We have seen in the Phase I project where people moved from Likalaneng to places like Makhoakhoeng and Thetsane resulting in a big change in their methods of livelihoods.
Based on this, we advise people to move up slope under the same chieftainship, council and importantly under the same neighbourhood.
LT: Which laws come into play in this policy?
Mokone: Importantly we comply with the treaty when drafting the policy, the Phase II Agreement, LHDA Order, LHWP Compensation Regulation and importantly the Lesotho Constitution.
There are also new laws which were not in place during Phase I implementation like the Land Act of 2010. If you look at the act’s Part 10 section 56, it covers issues of compulsory acquisition of land.
The act says: “In all cases in which the implementation of this act results in compulsory acquisition of the property, the person deprived of such property shall be entitled to compensation at market value.”
Although we are basing ourselves on the law, we are doing even better than what the law provides in a sense that the Land Act clearly states there is no market value in rural areas; making section 56 generally not applicable to compensation for Phase II on land, houses and trees in the areas affected by the project.
The law does not provide for compensation over years, but the LHWP has accepted people’s request to compensate them over years instead of once-off lump sum.
They argued that based on miners’ experiences during retirement, they would prefer to get their compensation over a long period, and as a project we settled for a period of 50 years.
LT: What does the approval of the policy mean to people affected by the project?
Mokone: We have to go back to the people to help them understand the policy and how it is going to be applied. I believe in the next two to three weeks we will go back to the communities and discuss the approved policy with them and other stakeholders.
During our past discussions, affected communities voiced their concerns and we took them to the authorities. However, there are two or three issues we did not agree on. We had already informed them about issues that were not approved, and we will once again go back to the communities to ensure we all share the same understanding during the implementation of this policy.
We will organise workshops for trusted community leaders who will then share this with the communities. LHWP will also go to different villages to discuss the policy.
The approval of the policy means there will be land acquisition and resettlement management – meaning in acquiring the land, LHDA will comply with the legal framework when acquiring people’s assets.
We will have permanent land acquisition like land required for the reservoir; establishment of the village (similar to that of Mohale, Katse and Liking villages), and construction of roads.
However, as a caring project, access will be granted to individuals who have a need to use such land acquired permanently and compensated. For instance, dam demarcation has already been done, and it is going to be 2 075 metres above sea level. But to protect the dam and other things, the demarcation is 2 080 metres above sea level. You will find that the excess land can still be used for grazing areas and people will continue to have access to that land.
We will still allow people to fish and operate their boats.
On the issue of powerline servitudes, we are going to pull electricity from the Matsoku site to Polihali and all permanent loss for the construction of the powerline will be compensated according to the provisions of the policy.
Provisions state that as far as possible we will avoid permanent land acquisition to minimise impacts. We will therefore avoid residential places and this does not mean we will be running away from connecting people to the electricity.
This is going to be a high-powered electricity voltage but it can also be trapped down by the Lesotho Electricity Authority.
However, where the powerline runs over farming land that will be acquired the owners will be given around 50 percent compensation as they would still be able to access their fields but not allowed to plant trees taller than three metres, store explosives or build any structures.
The LHWP is really trying to compensate for everything that may stop people from using the land as they had done in the past.
On top of the baseline study we have conducted, we are also going to do another socio-economic status analysis of the people directly affected by the project. Baseline was more general to the population of the affected areas. As per the feasibility study results, there are 534 directly affected households.
Lt: Has the Phase II Compensation Policy taken into consideration issues raised by ordinary citizens and non-governmental organisations?
Mokone: As indicated earlier, there was a long process of consulting and giving feedback. One thing we should always remember is consultations don’t necessarily mean agreeing with each other. There are situations where we agree to disagree and there are very few issues where we disagreed during the compensation policy consultations.
We basically failed to reach an agreement on the issue of duration of compensation. Maybe there are some people who are still worried about this matter, but I am confident we did justice to consultation and public participation processes.
We also failed to reach an agreement on issues of share croppers. It was suggested that people sharing cropping should be treated as land owners and equally be compensated but we flatly refused, saying only land owners would be compensated.
However, in a situation where we acquire land when there are still crops on the farm, we will give a certain percentage to the block farmer because we compensate on the loss of a standing crop.
I must also mention the project will ensure share croppers are included in the livelihood restoration programme – giving people livelihood skills and our understanding is that we must give share croppers other means of livelihood.
It is much more important than compensation because we are giving people livelihood skills applicable during and after project implementation.
On the issue of resettlement, the project gave in to a demand that households must be at liberty to choose their own building materials like stones instead of bricks. Households also have an option of looking for their own builders who will be paid by the project. If their fees are less than the project’s budget, the surplus will be given to the household.
In a situation where a member of the affected household is a builder, the project will hand-over the labour money to the family without any hesitation. The project’s mandate is to only ensure the houses are of the required standards.
LT: As per the policy, there are some people who will only be affected by the project in 2018. Can they still develop their land in anticipation their compensation money will increase?
Mokone: Until a cut-off date is announced, people are free to use their already allocated land as they please. However, there is a restriction on new land or site allocation in the project area declared by the government of Lesotho as selected for public purposes as well as the Phase II LHWP scheme area. In those cases, we have to be consulted. The cut-off date will be announced and that would mean no more developments even on already allocated land.
There will come a time for asset registration and we will register all the assets we found during that time. All the assets registered during that time will be compensated for their loss.
LT: Does the Phase II policy address some of the challenges recorded in the first phase?
Mokone: We have the livelihoods restoration programme. As a matter of principle, before people receive their compensation money, they should be equipped with the capacity to handle money. Financial literacy and management courses will be offered to the beneficiaries. We will take time to train people on these matters, including investments and general use of money.
LT: What is your reaction to an allegation put forward by non-governmental organisations (NGOs) that LHDA always has an upper hand during negotiations because of their lawyers?
Mokone: For me, the issue of lawyers does not hold water. We have lawyers working in the project to serve the interests of the people. Their work is only to ensure we operate within the constraints of law. The lawyers don’t negotiate with people; we do the negotiating. Believe it or not, we are not working for South Africa. We are Basotho, and have the people’s best interests at heart. We always invite NGOs to our public gatherings so they see for themselves that lawyers are not negotiating with people.
LT: Would you say the policy is gender sensitive in a sense that it allows women and children to benefit from compensation monies?
Mokone: Issues of Legal Capacity of Married Persons Act (2006) were noted in the policy. During the registration of people’s properties or assets, we make sure the spouses benefit.
We will not allow a situation where a man or woman comes on their own to register a property.
They will have to come together unless they produce a letter from the chief explaining in detail why the spouse is not available.
LT: Do you have a mechanism under the policy to ensure community leaders don’t work in cahoots with unscrupulous people to defraud the rightful beneficiaries of their compensation?
Mokone: Yes. The policy does not only consider married people or spouses but there is also a Children’s Protection and Welfare Act of 2011. This caters for children in the event their parents died and on their own.
Assets registration and acquisition will be done in the presence of the land owners, local authority representatives and liaison community committee members. People will be expected to bring along ownership documents in the form a lease, Form C or proof of local authorities.
Now that the policy has been approved, we are going to engage the Ministry of Home Affairs to register people ahead of the land acquisition to avoid delays in compensating people. When registering the properties, we will record statements both on written and video forms to produce in future when confronted with false claims.
For instance, if the husband is still alive and working out of town, we will demand the wife produces a letter from the chief detailing reasons for his absenteeism. We will also demand evidence from the council, neighbours and community liaison committees; a letter from the absent spouse and their identification documents.
Part V of the Children’s Protection and Welfare Act states the administration of the property of children by the Office of the Master of the High Court and we will ensure that orphaned children get what’s rightfully due to them. We have a good experience with the Phase I where the Office of the Master of the High Court is handling orphaned children’s properties.
LT: Will we see the project respecting cultural practices especially in terms of grave relocation?
Mokone: We will respect cultural and religious practices in any possible way we can. Existing cultural and religious practices will be preserved and respected to the maximum extent possible. For instance, we will engage the people on grave relocations and other important religious places.