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A Human Rights-Based Approach to Foreign Agricultural Investment in Uganda

Document Cited authorities 1 Cited in Related
Vincent
Author
Published date01 May 2019
Date01 May 2019
Pages268-291
DOI10.3366/ajicl.2019.0272
INTRODUCTION

Foreign agricultural investment (FAI) refers to investment in the agricultural sector of a host country by a foreign investor, which could be a foreign government or a corporation, and is directed towards the production of agricultural goods for use in the food and energy sectors, among others.1 It has over the past decade emerged in developing countries generally and sub-Saharan African countries as the next best alternative to the food and energy crises. In Uganda, FAI-related activities have greatly impacted on local communities' human rights. This article argues for the adoption of a rights-based approach (RBA) to FAI in Uganda as a necessary measure to be used by the government of Uganda to counter the negative impacts of the activity in the country.

Although it would be disingenuous not to acknowledge documented research on the human rights approach to FAI in Uganda,2 it is important to note that such research has focused only on substantive human rights issues and not on procedural rights. This article extends the scope of such research and investigates both substantive and procedural rights concerns for two reasons. Firstly, concerns relating to substantive and procedural rights form part of the broad RBA advocated in the international and regional rights instruments discussed below. Secondly, both substantive and procedural rights are often susceptible to violation in the context of FAI. Consequently, an understanding of the use of both approaches during FAI activities in Uganda could be instrumental in enhancing the respect for and protection of local communities' human rights.

Section II of this article discusses the regulation of FAI activities in Uganda by looking at contractual leases and memoranda of understanding, while also highlighting the impact of the activities on people's fundamental human rights, while section III provides the rationale for the adoption of an RBA to FAI land deals in Uganda. Section IV provides an analysis of the substantive and procedural human rights contained in the relevant international and regional instruments and focuses on the so-called ‘International Bill of Rights’ (IBR), which consists of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR). Regionally, the African Charter on Human and People's Rights of 1981 is discussed. The focus on these instruments is motivated by the consideration that Uganda is a signatory to them and they provide international benchmarks to the extent that the rights contained in them must be respected, protected and fulfilled by states that are party to them. This section also distils relevant benchmarks to be used as standards by states, including the government of Uganda, to the extent that they should guide the negotiation and implementation of FAI land deals in the hope of ensuring that local communities' rights are respected, protected and fulfilled. Section V provides a discussion of the Ugandan legal framework and focuses on the Constitution of the Republic of Uganda 1995 (the Constitution),3 the Access to Information Act (AIA),4 the National Environment Act (NEA) Cap 153 of 1998,5 the National Land Act (NLA),6 the Whistle-blower Protection Act (WPA)7 and the National Forestry and Tree Planting Act (NFTPA).8 Section VI measures this framework against the distilled minimum human rights requirements to ascertain if and the extent to which it conforms to these requirements, and attempts to establish if it is adequate to provide and ensure respect for, the protection of and the fulfilment of local communities' rights during FAI. The last section – section VII – provides a conclusion and recommendations.

 THE REGULATION OF FAI IN UGANDA AND ITS IMPACTS ON PEOPLE'S HUMAN RIGHTS The Regulation of FAI in Uganda

In Uganda, as in other sub-Saharan African countries, FAI is regulated by means of contractual agreements in the guise of contractual leases and memoranda of understanding.9 Some contractual leases extend the terms/duration of an existing FAI activity. For example, the Wilmar Palm Oil Plantation land lease was for an extension of 10,000 hectares of land in addition to the initial lease agreement of 40,000 hectares of land for 99 years in the Lake Victoria area.10 Others establish new FAI activities. Examples are the 2001 Kaweri coffee plantation project of a German Corporation Neuman Kaffee Gruppe (NKG), the 20,000 hectares of land leased to the New Forest Company for carbon offsetting, and the 11,864 hectares of land leased to a Norwegian company, Green Resources, for 50 years, for carbon credit. These contractual agreements serve to determine the price per hectare of land and the duration of the lease, among other matters. While government commits to providing land, as was the case with the lease agreement between the government of Uganda, Wilmar International and the International Fund for Agricultural Development (IFAD), which obliged the government to acquire and make land available for the project under a 99-year lease,11 the foreign investor is committed, inter alia, to job creation, the provision of sanitation and healthcare services and road construction, and also commits to respect human rights and the relevant rules and regulations.

The Ugandan Investment Authority (UIA) promotes investment activities by facilitating foreign investors' access to land.12 It also receives applications and issues licences and certificates to potential foreign investors in the country.13 Although various government agencies such as the District Land Board (DLB), the UIA and the Uganda Land Commission (ULC) are involved in land leases, it is reported that there is currently no enabling legislation that specifies the procedures to lease land to foreign investors,14 perhaps because there are no statutory definitions of the terms ‘public’ land, ‘government’ land and ‘local government’ land, which makes it difficult to specify the particular competent authority with respect to a specific parcel of land. The different authorities reserve the right to institute different and possibly conflicting procedures relating to the leasing of public land to foreign investors as they deem fit.15 The fact that the ULC and the UIA are both government agencies acting in the interests of the state and have the right to acquire and lease public land for investment purposes, including FAI, means that either the ULC or the UIA could determine the terms and conditions of the land deals without allowing the public to have access to these deals, properly consulting them or providing them an opportunity to effectively participate in the decision-making processes. The process of striking such deals is therefore opaque and exclusionary.16

In Uganda, memoranda of understanding are signed and concluded between the president and other members of government and the foreign investor. Local communities are not often informed or do not actively participate in the negotiation and signing of memoranda of understanding. It has been reported that President Yoweri Museveni and the Minister of Energy, Irene Muloni, signed a memorandum of understanding with major companies from the UK, France and China, including Tullow Oil and Total France,17 without disclosing vital information to the public. The details of the memoranda of understanding were ‘kept a top secret to only a few individuals’ despite the oil being a national resource.18

The regulation and implementation of FAI activities have reportedly impacted on local communities' rights in Uganda. These impacts are considered below.

 The Negative Human Rights Impacts of FAI Activities in Uganda The Impacts of FAI on Procedural Rights

In Uganda, local communities have limited access to vital information about the nature, scale and location of FAI land deals, as the conditions for their negotiation and implementation are generally not transparent and the government insists on not releasing information on FAI land deals even to some lesser government officials.19 District land officials, local chiefs and area land boards are often not informed of potential land deals, while a government official in Mubende District confirmed the following:

The way people (meaning foreign investors) are buying land in Mubende leaves a lot to be desired. How land is acquired is only known by the seller and the buyer and may be, by the land officer who issues the title since many come carrying title claiming that they are the new owners of land. We only get to know about any land transfer and acquisition when there are problems with squatters.20

It would be better if landowners and the local administration were informed about potential land ownerships because changes in the holding of public land should and must be guided by openness and transparency. Yet this is not the case. Lack of access to prospective and existing FAI land deals violates the public's constitutional and legislative right to access to information, and severely hinders their effective participation in decision-making processes. It is reported that local communities often get very surprised when they come across someone or a group of persons who claim to have bought the land the community is occupying and ask that community to vacate the land. One local from Manyogaseka Mubende District described the situation thus:

One day someone came to our place, he told us he had bought land, he instructed us to vacate the place. We wondered how he had got the land. We later learnt that he had got land after paying the bank. Later we also learned that he had sold the land to a certain army man who does not want anybody living on the land. We do not know this new person. We are now being forced to leave the land to clear way for the new owners.21

 Local communities rarely participate in the decision-making processes of FAI land...

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