Search Results (4)

The Voluntary Guidelines on the Responsible Governance of Tenure (VGGT) call for governments to clearly define the term ‘public purpose’ to allow for judicial review of the goals of expropriations of property. However, recent research indicates that national-level legal frameworks that govern expropriation decision-making not only vary greatly from country to country but also often fail to comply with the VGGT standards on expropriation. This creates the potential for unpredictable and, in some cases, arbitrary applications of expropriation law in practice. Focusing on legal norms and jurisprudence applicable to ‘public purpose’ decision-making in South Africa and India, this article provides a comparative analysis of these countries’ legal frameworks as means of ascertaining (1) the current legal boundaries to decisions on the expropriation’s goal; (2) whether these boundaries comply with the VGGTs; and (3) what these two countries can learn from one another in terms enacting legislation and regulations that comply with the VGGTs. To conduct this comparative analysis, we thoroughly examine constitutional provisions, relevant case law, legislation, regulations, and relevant secondary sources to highlight the current status of India’s and South Africa’s law on ‘public purpose’ and how they relate to the VGGTs. We conclude by distilling some key findings that can inform the decisions of expropriation lawmakers in both countries, especially in South Africa where a draft Expropriation Bill is currently being considered. Full article

In Nigeria, the recurring impoverishment and other negative socioeconomic impacts endured by landholders affected by expropriation are well-documented and call into question the Land Use Act’s (LUA) effectiveness in protecting local land rights. The World Bank’s Land Governance Assessment Framework found that, in Nigeria, “a large number of acquisitions occurs without prompt and adequate compensation, thus leaving those losing land worse off, with no mechanism for independent appeal even though the land is often not utilized for a public purpose”. Such negative outcomes may be due to a number of factors, including corruption, limited capacity, and insufficient financing as well as Nigeria’s weak legal framework. According to a recent study of compensation procedures established in national laws of 50 countries, Nigeria’s compensation procedure lags behind many of the countries assessed because the LUA mostly fails to adopt international standards on the valuation of compensation. This article examines Nigerian expropriation and compensation procedures in more detail by combining both an in-depth legal analysis of Nigeria’s expropriation laws as well as survey and qualitative research that indicates, to some extent, how expropriation laws function in practice in Nigeria. Based on our legal assessment, surveys, and interviews with both government and private sector officials involved in the LFTZ, we found that the Nigerian government failed to comply with international standards on expropriation and compensation, both in terms of its laws and its practices in the LFTZ case. This article expands our conference paper written for the UN Economic Commission of Africa Conference on Land Policy in Africa, which took place in Addis Ababa, Ethiopia in November of 2017. Under Nigeria’s LUA, affected landholders are not granted the right to participate in expropriation and compensation decision-making or otherwise be consulted on matters affecting their land and livelihoods. In 2004, the LUA enabled the Lagos State government to set aside 16,500 hectares of expropriated agricultural land from Lagos coastal communities to develop the Lekki Free Trade Zone (LFTZ). Following the expropriation, the Lagos State Government (LSG) and Lekki Worldwide Investment Limited signed a Memorandum of Understand (MOU) with nine affected communities in 2007. The MOU is a legally binding document that promises compensation, alternative land, jobs, healthcare, and educational opportunities to the communities affected by expropriation. However, our research suggests that the MOU has not been fully honored. According to a survey of 140 affected households conducted in August 2017, the government still had not paid sufficient compensation to all affected communities or had not yet provided them with suitable alternative land, jobs, equity shares and other entitlements promised by the MOU. While there are several reasons why the MOU has not been honored, this article mainly focuses on the failure of the LUA to establish binding obligations on government officials to compensation, resettle, and reconstruct the livelihoods of affected landholders. This article argues that the LUA must be reformed so that, whenever land is expropriated for development projects, the government and private sector entities (i.e., acquiring bodies) have a legal obligation to provide sufficient and prompt compensation, alternative land, jobs, equity shares, and other entitlements to affected landholders. Moreover, the LUA should obligate the government and acquiring bodies to follow a transparent and participatory process when expropriating land and compensating communities so that, if properly enforced, the reformed LUA can mitigate the risks commonly associated with expropriation, including landholder impoverishment, displacement, food insecurity, and conflict. Full article

This paper analyzes whether national laws acknowledge indigenous peoples and other rural communities in 100 countries as owners of waters that arise within their lands. Results derive from information collected by LandMark to score the legal status of community land tenure. Findings are positive; half of all countries recognize communities as lawful possessors of water on their lands. Three quarters permit communities to manage the distribution and use of water on their lands. While 71 percent of countries declare water to be a public resource, this belies the substantial existence of privately owned water. In 29 percent of countries, private water is an identified legal category, and in many other countries obtainable rights to water are sufficiently substantial to imply lawful possession. Communities are beneficiaries mainly where customary rights are accorded status as property rights, or where ownership of public lands and water are devolved to rural collectives. However, opposite trends of nationalization and regulation of water suggest that while legal recognition of community land ownership may rise in the future, this will not necessarily include waters on the land. Irrespective of tenure, rural communities in 72 of 77 countries (93.5 percent) are legally assured access to water for domestic purposes. This is consistent with the rising definition of safe drinking water as a human right, although access does not necessarily come free of cost. Full article

The challenges associated with determining fair compensation for expropriated land have been extensively discussed and debated among scholars, practitioners, policymakers, and the public. However, to date, a comprehensive study of national-level compensation procedures established by law considering whether such procedures meet internationally recognized standards on compensation valuation has not been conducted. This article aims to bridge this gap by serving as a reference point and informing “fair compensation” debates among scholars, practitioners, and policymakers. This article examines national-level legal provisions on compensation in 50 countries/regions across Asia, Africa, and Latin America against a set of legal indicators that are based on international standards on the valuation of compensation. The legal indicators focus on the substantive and procedural requirements pertaining to the calculation of compensation. The indicators ask whether laws require assessors to account for various land values when calculating compensation, and whether there are legal processes in place that allow affected persons to negotiate compensation amounts, receive prompt payments, and hold governments accountable by appealing compensation decisions in courts or before tribunals. The results of the study show that most of the 50 countries/regions assessed do not have national laws that comply with internationally recognized standards on the valuation of compensation. Based on the findings from the legal indicator analysis, this paper presents a set of recommendations for reforming compensation procedures to bring them into conformity with international standards. Full article