Government of Malawi World Bank Irrigation, Rural Livelihoods and Agriculture Development Project Resettlement Policy Framework Volume 2: Framework for Land Acquisition and Compensation Final Report March 2005 Updated November 2011 Ministry of Agriculture Capital City, Lilongwe 3 Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized
Transcript
Government of Malawi World Bank
Irrigation, Rural Livelihoods and Agriculture Development Project
Resettlement Policy Framework
Volume 2: Framework for Land Acquisition and Compensation
Final Report
March 2005
Updated November 2011
Ministry of Agriculture Capital City, Lilongwe 3
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Irrigation, Rural Livelihoods and Agriculture
Development Project
Resettlement Policy Framework
Volume 2: Framework for Land Acquisition and Compensation
Final Report
Proponent: The Principal Secretary
Ministry of Agriculture P.O. Box 30134 Capital City
Lilongwe 3
Tel: (265) 1789033 (265) 1789252
Fax: (265) 1789218
(265) 1788738
Consultant: Kempton Consultancy Services
Plot No. 4/354D
Shire Limited Building
P.O. Box 1048
Lilongwe.
Malawi.
Mobile: (265) 9958136
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Table of Contents
EXECUTIVE SUMMARY .......................................................................................................................................... V
ACKNOWLEDGEMENTS ...................................................................................................................................... VII
LIST OF ACRONYMS ........................................................................................................................................... VIII
LIST OF TABLES...................................................................................................................................................... IX
5.0 RATIONALE OF THE FRAMEWORK ........................................................................................................ 5
6.0 GENERAL PRINCIPLES ................................................................................................................................ 6
7.0 AN OVERVIEW OF LAND USES IN MALAWI. ......................................................................................... 7
9.0 POLICY AND LEGAL FRAMEWORK ON RESETTLEMENT IN MALAWI........................................ 9
9.1 REVIEW OF POLICIES AND LAWS ON RESETTLEMENT IN MALAWI. .............................................. 9 9.2 POLICIES OF THE WORLD BANK ON RESETTLEMENT. ..................................................................... 12 9.3 COMPARISON AND GAPS BETWEEN POLICIES OF WORLD BANK AND MALAWI ON
10.1 COORDINATION OF THE FLAC ............................................................................................................... 15
11.0 IMPLEMENTATION OF THE PROJECT COMPONENTS ................................................................... 15
11.1 IMPLEMENTATION PROCESS ................................................................................................................. 15 11.2 PROCEDURES ............................................................................................................................................. 15
11.2.1 PUBLIC CONSULTATION AND PARTICIPATION ........................................................................ 15 11.2.2 LAND ACQUISITION PROCEDURES .............................................................................................. 16 11.2.3 NOTIFICATION AND VALUATION PROCEDURES ..................................................................... 16 11.2.4 PROCLAMATION OF THE ACQUIRED LAND .............................................................................. 17
12.0 VOLUNTARY LAND CONTRIBUTION WITHOUT COMPENSATION .............................................. 17
12.1 COUNTRY CONTEXT AND PRACTICE OF LAND CONTRIBUTION ....................................................... 17 12.2 PROCEDURES FOR LAND CONTRIBUTION .............................................................................................. 18
13.0 INVENTORIES OF ASSETS DONATED OR ACQUIRED ...................................................................... 19
14.0 CATEGORIES AND IMPACTS OF LOSSES ............................................................................................. 19
17.1 DISPUTES OVER LAND ACQUISITION AND LAND ACCESS RIGHTS .............................................. 21 17.2 GRIEVANCES OVER COMPENSATION AND ENTITLEMENTS DELIVERY ...................................... 22
20.1 CENSUS AND INVENTORY SURVEYS ................................................................................................... 24 20.2 TIME FRAMES ........................................................................................................................................... 25
21.0 BUDGETARY IMPLICATIONS AND FUNDING ..................................................................................... 25
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22.0 MONITORING AND EVALUATION .......................................................................................................... 26
ANNEX I: ORGANOGRAM FOR PROJECT COORDINATION ........................................................................................ 27 ANNEX II: ORGANIZATIONAL STRUCTURE FOR THE PROJECT COORDINATION UNIT ........................................... 28 ANNEX III CONSENT FORM: VOLUNTARY LAND CONTRIBUTION ........................................................................ 29 ANNEX IV GRIEVANCE ADDRESS CONSENT FORM .............................................................................................. 30 ANNEX V INVENTORY FORM: LAND ACQUISITION ................................................................................................. 31
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EXECUTIVE SUMMARY
A proposed Framework for land acquisition and compensation (FLAC), has been prepared based on the social impact assessment and public consultations. It establishes parameters for the conduct of land acquisition and compensation including resettlement of Displaced Persons (DPs) who may be affected during implementation of the Irrigation, Rural Livelihoods and Agriculture Development Project (IRLADP) in Malawi. It is anticipated that demand driven activities under the IRLADP will require more land, especially customary land, to be alienated from local people. With
increasing population and the decreasing available land resources, the number of people and magnitude of adverse impacts are likely to be significant especially in resource strained areas. This framework, therefore, serves to provide safeguards against adverse impacts of future development projects by minimizing the number of Displaced Persons and adequately compensating them for the losses they incur.
The proposed project also falls under prescribed projects (category B) of the World Banks Operational Policy (OP 4.12) on involuntary resettlement. This framework therefore will adopt applicable principles outlined in the World Bank’s Operational Policy (OP 4.12) on involuntary resettlement into local experiences and legislation because the latter are not comprehensive enough to accord fair compensation and resettlement arrangements. A comparison of both World Bank provisions in O.P. 4.12 and those of the Malawi laws have been compared and suggestions for bridging gaps between them suggested to ensure that land acquisition, compensation and resettlement issues are effectively addressed. This framework includes guidelines for land contributed voluntarily for development projects in return for compensation; land contributed voluntarily for development projects without seeking compensation; and land acquired involuntarily for development projects. The guiding principle for land acquisition shall be that where land is required for implementation of irrigation or agricultural related projects, certain safeguards shall be observed to reduce the suffering of the affected community members.
The framework is intended to assist all proponents implementing World Bank funded (Category B) projects. Overall responsibility for the implementation of this Framework under (IRLADP) shall reside with the Department of Irrigation under the Ministry of Agriculture Irrigation and Food Security (MOAIFS). The Department will be assisted by the Ministry of Local Government (MoLG), Ministry of Lands and Valuation (MoLV), the Ministry of Water Development (MoWD) and the Ministry of Finance (MoF). The MOAIFS will ensure that the Framework is publicly disseminated and that project staff has the requisite skills and knowledge and, where necessary, receive appropriate training to implement the framework.
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The District Irrigation Officer shall take responsibility for implementation of the Framework at District Level with assistance from other line district offices of the above mentioned government ministries. Implementation of the framework shall require a number of steps including public consultation and participation; the jurisdiction of the framework; land acquisition procedures; proclamation of the acquired land; guiding principles for the various types of land acquisition; categories of losses; notification and valuation procedures; eligibility criteria; entitlements; procedures for payment of compensation; resettlement plans; census and inventory surveys; budgetary implications and funding; and monitoring and evaluation. These steps will ensure that future micro-projects are adequately reviewed and assessed for any adverse social and economic impacts before implementation.
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ACKNOWLEDGEMENTS
This social impact assessment could not have been accomplished if it were not for the input of so many people and organizations from various parts of the
country. Special thanks should be accorded to the management and staff of the Ministry of Agriculture for all the support provided during the study and to the World Bank for financial support for the study.
We would also like to thank all district Assemblies, local leaders, community members and smallholder farmers from various districts who provided
information and other support.
In particular we would also like to thank the Commissioner for Lands, the Director of Irrigation Services, members of the project task team from various ministries and other private organizations for their insight and information
support.
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LIST OF ACRONYMS
CEO Chief Executive Officer
DADO District Agricultural Development Officer
DPs Displaced Persons
ELUS Estates Land Utilization Study
FLAC Framework for Land Acquisition and Compensation
GoM Government of Malawi
IRLADP Irrigation, Rural Livelihoods and Agriculture Development Project
MOAIFS Ministry of Agriculture food Security and Irrigation
MoF Ministry of Finance
MoLG Ministry of Local Government
MoLH Ministry of Lands and Housing
MoWD Ministry of Water Development
MoWP Ministry of Works and Public Transport
PAP Project Affected Persons
DP Displaced Persons
TA Traditional Authority
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LIST OF TABLES
Table 9.1 Outline of selected differences on management of resettlement
between World Bank Policy on Resettlement (OP 4.12) and Laws of Malawi…14
Table 14.1 Categories of losses and their impacts ………………………………….19
Unless the context dictates otherwise, the following terms shall have the following meanings: -
1. “Census” means a field survey carried out to identify and determined the
number of Project Affected Persons (PAP) or Displaced Persons (DPs) in
accordance with procedures, satisfactory to the Ministry, including criteria for eligibility for compensation, resettlement and other measures, emanating from consultations with affected communities and the local
chiefs.
2. “Compensation” means the payment in kind, cash or other assets given in exchange for the taking of land including fixed assets thereon, in whole or in part.
3. “Cut-off date” is the date of commencement of the census of PAPs/DPs within the project area boundaries.
4. “Displaced Persons” means persons who, for reasons of the involuntary
taking or voluntary contribution of their land and other assets under the
Project result in direct economic and or social adverse impacts, regardless of whether or not the said Displaced Persons physically relocate, but have their:
(a) standard of living adversely affected, whether or not the
Displaced Person must move to another location ; (b) right, title, interest in any house, land (including premises,
agricultural and grazing land) or any other fixed or movable asset acquired or possessed, temporarily or permanently, adversely affected;
(c) access to productive assets adversely affected, temporarily or
permanently; or (d) business, occupation, work or place of residence or habitat
adversely affected; and “Displaced Person” means any of the Displaced Persons.
5. “Involuntary Displacement” means the involuntary taking of land
resulting in direct or indirect economic and social impacts caused by:
(a) Loss of benefits from use of such land;
(b) relocation or loss of shelter;
(c) loss of assets or access to assets; or (d) loss of income sources or means of livelihood, whether or
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not the Displaced Persons has moved to another location; or not, and
6. ”Involuntary Land Acquisition” is the taking of land by government or
other government agencies for compensation for purposes of a public project against the will of the landowner. The landowner has the right to negotiate the amount of compensation proposed. This includes land or
assets for which the owner enjoys uncontested customary rights. 7. “Land” refers to agricultural and non-agricultural land and any structures
thereon whether temporary or permanent and which may be destroyed/required by/ for the Project.
8. ”Land acquisition” means the taking of or alienation of land, buildings or
other assets thereon for purposes of a Project.
9. “Ministry” means the Ministry of Agriculture, Irrigation and food Security.
10. ”Rehabilitation Assistance” means the provision of development assistance in addition to Compensation such as land preparation, credit
facilities, training, or job opportunities, needed to enable Displaced Persons to improve their living standards, income earning capacity and production levels, or at least maintain them at pre-Project levels.
11. ”Replacement cost” means replacement of assets with an amount
sufficient to replace lost assets and cover related transaction costs. In
terms of land, this may be categorized as follows;
“Replacement cost for agricultural land” means the pre-project or pre-displacement, whichever is higher, market value of land of equal productive potential or use located in the vicinity of the affected land, plus
the costs of:
(a) preparing the land to levels similar to those of the affected land; and
(b) any registration and transfer taxes;
“Replacement cost for houses and other structures” means the prevailing
cost of replacing affected structures, in an area and quality similar to or better than that of the affected structures. Such costs shall also include:
(a) transporting building materials to the construction site; (b) any labor and contractors’ fees; and
(c) any registration costs. 12. “Resettlement Assistance” means the measures to ensure that Displaced
Persons who may require to be physically relocated are provided with assistance during relocation, such as moving allowances, residential
housing or rentals whichever is feasible and as required, for ease of
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resettlement.
13. “Voluntary Land Contribution” refers to a process by which an individual or communal owner agrees to provide land or property for project-related
activities. Voluntary contribution is an act of informed consent, made with prior knowledge of other options available and their consequences, including the right not to contribute or transfer the land. It must be
obtained without undue coercion or duress.
Voluntary Land Contribution may be of two types: -
(a) Voluntary Land Contribution for Compensation, or (b) Voluntary Land Contribution without Compensation.
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1.0 INTRODUCTION
Following the results of the findings from the field visits, interviews with local people and officials from various ministries; and information from some
previous studies and other documents, a proposed Framework for land acquisition, compensation (FLAC), has been prepared. This Framework establishes parameters for the conduct of land acquisition and compensation
including resettlement of Displaced Persons (DPs) who may be affected during implementation of the Irrigation, Rural Livelihoods and Agriculture Development Project (IRLADP) in Malawi. As a component of the project, the government
intends to rehabilitate some of the irrigation schemes developed in the early 1960’s and hand them over to local communities. It is anticipated that with
success in community managed schemes, other communities will demand assistance for more community-managed projects. Such demands will require more land to be alienated for such projects. From experience, most of such land
is customary land which may at the time of need be in use. Since most of the existing schemes have been implemented in sparsely cultivated areas, with low
population, the magnitude of adverse impacts may have been minimal. However, with increasing population and the decreasing available land
resources, the number of people and magnitude of adverse impacts are likely to be significant especially in resource strained areas. Experience indicates that unmitigated involuntary resettlement under development projects often leads to
severe economic, social and environmental risks where: production systems are dismantled, people face impoverishment if their productive assets or income
sources are lost; people are relocated to environments where their community institutions and social networks are weakened; kin groups are dispersed, and cultural identity, traditional authority and the potential for mutual help are
diminished or lost. This framework, therefore, serves to provide safeguards against severe adverse
impacts of development projects and mitigate against potential impoverishment risks by minimizing the number of Displaced Persons and/or adverse impacts of
the intended interventions or adequately compensating them for the losses they incur.
2.0 OBJECTIVES OF THE PROJECT
The project seeks to increase incomes and improve rural livelihoods in a
sustainable manner by raising the productivity of smallholder farms in the selected 11 districts of Malawi. Government intends to achieve this goal by providing enabling conditions in areas of irrigation, rain water harvesting input
supply, extension and technology transfer, improving farmer cooperation and provision of market support structures.
The objectives of the Project therefore are: -
1. To support the implementation of Government’s National Irrigation
Development Policy and Strategy through rehabilitation of existing irrigation schemes;
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2. To support the implementation of Governments new extension strategy by implementing pluralistic extension services and technology transfer to
raise agricultural productivity;
3. To improve market access and efficiency of smallholders 3.0 COMPONENTS OF THE PROJECT
The proposed Irrigation, Rural Livelihoods and Agricultural Development Project (IRLADP) is an integrated project and has a number of subcomponents which
include Irrigation Rehabilitation and Development, Extension and Technology Transfer, Market Development and Institutional Support and Capacity
Development. Of particular interest to this framework are the Irrigation Rehabilitation and Development Component. The subcomponents proposed under this component include: -
1. Selective rehabilitation of existing government owned irrigation schemes;
2. Development of new small-scale Irrigation Schemes
3. Small-scale farmer demand driven-rainwater harvesting and catchment conservation;
4. Rehabilitation of existing small scale reservoirs and development of new reservoirs.
4.0 TARGET SUB-COMPONENTS
Project components which may require land acquisition, compensation and resettlement of the displaced persons, and therefore subject to the provisions of the framework include: (a) rehabilitation of originally government managed
schemes in readiness for handover to local communities; (b) Extension of land of certain selected schemes; (c) construction of demand driven schemes; (d)
Construction of and upgrading of feeder roads to allow for transportation of produce; (e) construction of markets and related infrastructure; and (f) construction of facilities for rain water harvesting and water retention including
rehabilitation and construction of small scale reservoirs.
5.0 RATIONALE OF THE FRAMEWORK
1. The proposed project falls under prescribed projects (category B) under
the World Banks Operational Policy (OP 4.12) on involuntary resettlement. A framework has been prepared because details of the activities to be undertaken in the various locations are not known by
appraisal of the main IRALDP project. This framework therefore, while adopting and adapting some of the local experiences and the provisions of local legislation, is also based on the World Bank’s Operational Policy (OP
4.12) on involuntary resettlement, which emphasizes on the following principles:
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(a) Avoiding or minimizing involuntary land acquisition and resettlement where feasible.
(b) Providing assistance to displaced persons with a view to maintain and/or improve their standards of living, earning capacities and
production levels. (c) Encouraging community participation in planning and
implementing land acquisition, compensation and/or resettlement,
and provision of assistance to affected people regardless of the legality of their land rights or their title to land.
2. This framework includes guidelines for: -
(a) land contributed voluntarily for development projects in return for compensation;
(b) land contributed voluntarily for development projects without seeking compensation; and
(c) land acquired involuntarily for development projects.
3. The guiding principle for land acquisition shall be that where land is required for implementation of irrigation or agricultural related projects, certain safeguards shall be observed to reduce the suffering of the affected
community members.
4. The Government of Malawi (GOM) through the Ministry of Agriculture, Irrigation and Food Security (MOAIFS) shall make every effort to ensure that no land is acquired against the will of the person(s) exercising their
rights over their land. In the event that such acquisition is unavoidable, it shall be done according to the process outlined in the following sections of the framework.
This framework shall be used on all government schemes where land disputes
have not been resolved and on all demand-driven schemes.
6.0 GENERAL PRINCIPLES Implementation of this framework will take into account provisions of the local
legislation and the World Banks Operational Policy 4.12 (Involuntary Resettlement) in implementing the provisions of this framework. Among other things:
1. Land acquisition including resettlement of people, unless absolutely
necessary shall be avoided. In particular, acquisition of sites of spiritual or cultural/historical significance shall be avoided.
When unavoidable the project shall take all measures to minimize the impacts of physical and economic displacement of people as a result of
the implementation of the project; provided, however, that, when the acquisition of land is required,
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2. The Project shall, initially endeavor to utilize available freehold or public
land
3. Any land acquisition and resettlement plans shall be done in consultation with affected or displaced persons and communities as per the provisions of this RPF
4. Displaced Persons shall be compensated at the replacement cost of loss
assets in an effort to restore or improve his or her livelihood at the pre-
project and pre-displacement level? Where the landowner has willingly or voluntarily contributed land, but is seeking compensation, the
assessment for compensation shall be treated as land acquisition. 5. Where the owner has freely contributed land but is not seeking
compensation for it, the assessment shall only include assets thereon and not land.
6. Compensation shall be limited to valuations made after the cut-off date.
7. Compensation related to former schemes shall only be limited to new land for scheme land extension, rehabilitation of infrastructure and construction of feeder roads.
8. Any land conflicts shall be resolved in a transparent way and in a manner that is not coercive. Attempts shall be made to resolve conflicts at village,
Traditional Authority (TA) or District level. If the problem persists, courts of law shall be consulted.
9. Given the delicate social balance and tension in government schemes, projects shall ensure that communities surrounding these schemes
benefit from the project. 7.0 AN OVERVIEW OF LAND USES IN MALAWI.
Malawi is a relatively small country with one of the highest population density in Southern Africa. The country has an estimated population of 13 million
people against land size of about 9.5 million hectares. The average population density is 139 persons per square kilometre. However, the southern half of the country has an average population density of about 350 persons per square
kilometre. About 85% of the population live in rural areas and depend on small holder farming while only 15% of the population live in towns where as much as 75% of the urban population live in poor peri – urban and informal settlements
Agriculture is the main stay of Malawi’s economy, accounting about 40% of gross domestic product and about 85% of export revenue. Small holder farming
occupies about 4.5 million hectares while estates occupy about 1.2 million hectares of rural land .Some studies indicates that as much as 55% of the smallholder farmers have less than half of a hectare of cultivable land. As a
result of this constraint, most rural households face difficulties in producing enough output for food and cash throughout the year. Poverty levels are
estimated at 60% and 65% of populations in rural and urban areas respectively.
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One of the priorities of the National Education Sector Plan is to address infrastructure and capacity requirements in the education sector across the
country. In context of Malawi situation, infrastructure interventions pose realistic risks on involuntary resettlements because by design, the preferred
choice of sites of schools would be within proximity of communities. Resettlement activities within highly populated areas generate long term setbacks on agro - based livelihood systems.
8.0 LAND TENURE REGIMES IN MALAWI
Malawi embraces the capitalistic ideals with regard to land ownership. There are
five distinct land tenure classes existing in Malawi. The implementation of the country wide Malawi Fast Truck Initiative would likely involve land access to
any one of the classes. Furthermore, cases of construction of new education facilities within selected sites would trigger land tenure and access changes. The description and extents of the classes of land in Malawi are as follows:
(i) Customary Land
This is land held in trust for all people of Malawi by the State President,
who delegates his authority to traditional chiefs. This constitutes about 75% of the total 9.5 million hectares of the land. The land is commonly held and distributed to the people by local chiefs. Although each person
has recognised ownership to a piece of land, he or she cannot trade on it as the land can be reassigned to other people in case the chiefs deem it fit. A coherent system in the distribution of land exists in both patrilineal
and matrilineal societies. This system has allowed smallholder agriculture to survive without access to bank loans.
(ii) Leasehold Land
This is part of private land that is leased by individuals or other legal residents. The lease period varies according to type of use that someone
has applied for. Currently these fall into three groups of 21 years old leases for agricultural uses, 33 to 99 years old for property and infrastructure developments, and over 99 year lease for those who would
wish to sublease to tenants of 99 years. About 8% of the land in Malawi is in this category.
(iii) Registered Land
This is grouped into two classes called customary registered and adjudicated land. The first exists in Lilongwe District only. This land is
registered in the family leader name with all family names in that area registered including the size of their land holdings. Their implicit freehold
status as the families can trade in its holding by leasing out or selling bits of it with groups consent. Loans can therefore be obtained on strength of their certificates to the land
The second class is a simplified leasehold system, which allows owners to have certificates for their pieces of land based on survey and registration number. This is common in the urban areas, but has been applied in
rural areas for agricultural, commercial and residential uses.
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(iv) Freehold Land
This is land, which has been granted to persons for perpetuity. The
government has no specific control on transactions except on planning permission on uses. This lease is now limited to Malawian citizenship
only. It is difficult to enforce conservation measures on this land because of the exclusivity, which the persons enjoy, particularly some owners who live overseas.
(v) Government Land
The is land which is owned and used by government for public utilities, schools, hospitals, government offices and other properties, markets,
government farms and other public goods throughout the country.
(vi) Public Land
Land managed by agencies of the government and traditional leaders in trusts for the people of Malawi, openly used or accessible to the public at large. This includes catchment areas, protected forest reserves, national
parks, game reserves, dambos, community forests, riverines, flood plains, wet lands, military sites and others.
9.0 POLICY AND LEGAL FRAMEWORK ON RESETTLEMENT IN MALAWI. 9.1 REVIEW OF POLICIES AND LAWS ON RESETTLEMENT IN MALAWI.
Policy and legal framework on resettlement in Malawi is drawn from various government policies and pieces of legislation .In addition to a review of the Constitution of Republic of Malawi, other key government policies and pieces of
legislation considered here include: Malawi National Policy, Land Act, Land Acquisition Act, The Public Roads Act, The Town and Country Planning Act, and
the Forestry Act. The following paragraphs highlight some resettlement related requirements in the planning of education infrastructure under National Education Sector Plan.
9.1.1 The Constitution of Republic of Malawi.
The Constitution of the Republic of Malawi guarantees land as a basic
resource for social and economic asset for all Malawians. It affirms equitable access of land and ownership of property. The constitution also
sets a benchmark on the issue of land acquisition. It provides in section 28(2) that “No person shall be arbitrarily deprived of property” and in section 44(4) that “Expropriation of property shall be permissible only
when done for public utility and only when there has been adequate notification and appropriate compensation provided that there shall
always be a right to appeal a court of law”. In regard to these facts, it will be necessary for the community to provide adequate land to for displaced persons. The Constitution of Republic of Malawi further guarantees
security of tenure of land and free enjoyment of legally acquired property rights in any part of the country. The implication of this provision to resettlements related education infrastructure under National Education
Sector Plan that government will have to pay out fair and adequate compensation to land owners in event of the need to acquire persons’ land
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for construction of new schools and colleges.
9.1.2 The Malawi National Land Policy. The Malawi National Land Policy focus on land as a basic resource
common to all people of Malawi and for enhancement of socio – economic development. Section 4.11 affirms equitable access to land to all citizens of Malawi. The policy recognizes human settlement and agriculture as the
major benefactor land use sector. As such, the policy advocates for orderly resettlements of villages or households especially in rich agricultural zones. Furthermore the policy guarantees full legal protection
to customary land tenure to the people of Malawi in order to enable the ordinary Malawians adequately participate in subsistence farming and
socio-economic development activities. The Malawi National Land Policy also advocates for fair compensation on open market value to local people on all classes of land (whether held under customary land tenure or
leasehold) in case such land is acquired for public interest or for development of public infrastructure. In reference to relocation of
displaced people, the policy advocates adequate consultations with the affected people so that their interests are taken care of. Such provisions will have to be made in education infrastructure under National
Education Sector Plan for consideration of acquisition of land for some selected new schools and colleges.
9.1.3 Land Act Land Act covers land tenure and land use quite comprehensively. Section
27 and 28 of the act guarantees landholders for appropriate compensation in event of disturbance of or loss or damage to assets and interests on land Act also provides procedures of acquisition of one class
of land to another. The process begins with appropriate notice the existing lessee of the land.
9.1.4 Land Acquisition Act. This law covers procedures relating to the acquisition of land by either the
government or individuals or developers from any form of the land tenure systems in Malawi. The act makes provision for preliminary investigation, preliminary survey of the area and the procedure to be followed where
land should be acquired. The procedure for land acquisition starts with issue of a formal notice to persons who have existing interests in the land.
Such notices are issued under section 6 of this act. Sections 9 and 10 of the act covers the steps for assessment of land, crops, fruits and other landed properties and subsequent procedures for payments of the
compensations to the displaced people. Section 11 to 14 outlines the necessary steps for land surveying and land transfer following notices in government gazette. The responsibility of identifying alternative land for
those affected people rests with their village headman, their traditional authority and District Commissioner of the district. The District
Commissioner assists in transportation and provisions of necessary services on new sites of resettlement.
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9.1.5 Town and Country Planning Act. The Town and Country Planning Act, is a principal act for regulating land
use planning and physical developments in Malawi. The aim of regulating land uses and location of physical developments is to enhance orderly
spatial physical growth of human settlements activities. In addition the laws promotes orderly physical planning in order to enhance optimum use of land and service infrastructures, protect and conserve fragile
environmental systems in space. These objectives are achieved by guiding physical developments, and controlling building uses in designated zones with regulated planning permissions. Section 40 basically prescribes
environmental and socio-economic screening for medium to large scale development projects before they can be granted planning permissions
under this act. Normally this screening is undertaken by local assemblies and developers of proposed large projects before they can be sanctioned under this act.
Sections 63 - 65 recognize the need of appropriate compensations to land owners in case of compulsory acquisition of land for public interest.
Although the provisions indicate that compensation is at discretion of government, recent amendment to the sections have provided room for appeal to the high court by land owners in case they are aggrieved on
amount of compensation on their assets.
It is expected that there will be no cases of compulsory acquisition of land on the project.
9.1.6 Public Roads Act.
The public roads act covers the management of road reserves and streets. Land acquisition and resettlement issues are outlined in part II of the act. Section 44 provides assessment of compensations which can be paid
under this act. The compensations cover surface and land rights of the owner or occupier of land. Section 45 provides for compensation for conversion of land into public use and the section states specifically that
in case of customary land compensation is in respect to disturbance to people, section 49 and section 50 provide opportunities for land owners or
occupiers to appeal to the High Court on grievances related to resettlement and compensations provided for in this act.
9.1.7 Forest Act. The Forestry Act number 11 of 1997 affirms the role of Department of
Forestry on control, protection and management of forest reserves and protected forest areas. In addition the act recognizes the need to promote participatory social forestry and empowerment of communities for
conservation and management of trees within the country. In this regard the act encourages community involvement in woodlots and management of forest reserves through co-management approaches. Section 86 of
Forestry Act has provided guidelines on values/rates for sale of both indigenous trees and exotic trees. These rates are gazetted, and are
reviewed from time to time by senior government officials. The values are used so that those who are involved in forestry are paid reasonable
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compensations on their timber trees and fruit trees .In case the department has not reviewed the rates at the material time, the
department of Forestry normally assigns an officer to value the trees for purpose of immediate sale or compensations. Normally, the valuation of
people’s trees are done based on species of trees, measured diameter of breast height and market price in kwacha per cubic metre.
9.2 POLICIES OF THE WORLD BANK ON RESETTLEMENT. World Bank Policy on resettlement is outlined in Operational Policy (OP 4.12, and the overall objective of this safeguard is to avoid or minimize involuntary
resettlement where feasible, exploring all viable alternative project designs. Further the policy advocates encourages community participation in planning
and implementing resettlement. More specifically, where resettlement is un avoidable, the policy stipulates criteria for eligibility to compensation, resettlement assistance and rehabilitation assistance measures to displaced
persons on the following conditions:
a. Those who have formal legal rights to land, including customary
and traditional rights recognized under the laws of Malawi. This class of people includes those holding leasehold land, freehold land and land held within the family or passed through generations.
b. Those who have no formal legal rights to land at the time the census but have a claim to such land or assets provided that such claims are recognized under the laws of Malawi. This class of people
includes foreigners and those that come from outside and given land by the local chief to settle.
c. Those who have no legal right or claim to the land they are occupying to the land they are occupying. This class of people includes squatters, pirates and those that settle at a place on semi-
permanent basis, or those settling at a place without any formal grant or authority.
Displaced persons classified under paragraph 3.2(a) and 3.2 (b) shall be
provided compensation, resettlement assistance and rehabilitation assistance for the land, building or fixed assets on the land and buildings taken by the
project in accordance with the provisions of this framework if they occupy the project area prior to the cut-off date (date of commencement of the census). Displaced persons classified under paragraph 3.2 (c) shall be eligible for
compensation for the assets but not land.
In addition the World Bank policy on resettlement stipulate those displaced
persons who encroach on the project area after the cut-off date shall not be entitled to compensation, or any resettlement assistance or any other form of rehabilitation assistance.
9.3 COMPARISON AND GAPS BETWEEN POLICIES OF WORLD BANK AND
MALAWI ON RESETTLEMENT
Policies of the World Bank on resettlement and of Government of Republic of Malawi have a number of common aspects in management of resettlement. For
13
example both policies emphasise on minimisation of the extent of resettlement .Secondly, the policies recommends considerations of fair and adequate
compensations to project affected persons. However, there some gaps which exists between the policies of World Bank and those of Government of Republic
of Malawi. A detailed comparative analysis is provided in table 2. Some selected examples are as follows:
(a) On aspect of compensations on assets to project affected people, the
policies of World Bank on resettlement include illegally built structures of squatters and pirates as eligible for compensations on their assets. In case of Malawi, such claimants are not entitled to
compensations.
(b) On aspects on compensations on land, the policies of Government
of Malawi considers the different intrinsic values associated with various classes of land (customary land, leasehold land, freehold land , public land) .In such cases, rates for compensation on land
vary from one site to another and from one class of land tenure to the other. World Bank policies do not distinguish such differential
aspects of land classes and corresponding different market rates.
(c) In cases on compensation of loss of land by project affected people, the World Bank policies prefer land for land compensation. In
Malawi an option of land for land compensation is normally preferred in customary land transaction while option of land for money compensation is the preferred options in urban areas.
(d) World Bank policies clearly stipulate resettlement as an upfront project – in that all issues of land acquisition and relocation of
project affected people has to be done prior to commencement of the project site on the acquired site. The policies do not clearly spell out this approach and in practice; resettlement is treated as a separate
exercise outside project planning and implementation process.
World Bank Policies clearly recommends for adequate resettlement assistance and rehabilitation assistance to relocated people as a way of restoring and
enhancing socio – economic living standards. This is supposed to be undertaken within the first years of relocation on the new sites. Malawi legislation does not
clearly define the extent f resettlement assistance to relocated people. Much of available support is normally left in hands of District Commissioner and local chiefs within the district and area of relocation of the project affected people.
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Table 9.1: Outline of selected differences on management of resettlement between World Bank Policy on Resettlement (OP 4.12) and Laws of Malawi Project affected person
Provisions from relevant laws of Government of Malawi World Bank Provision on the aspects
Appropriate measures for addressing the gaps.
Name of Legislation Provision within piece of legislation in Malawi
Land Owner/Occupier
Public Roads Act (chapter 69:02)
The law stipulates payment of cash compensation based on loss or damage or destruction to structures. No compensation on land.
The policy stipulates that land owners are entitled to compensation of land, compensation of building on replacement costs, expenses on labour
The policy stipulate that land owners are entitled to compensation for crops
Compensation of land for land to project affected persons.
Compensation of all structures at full replacement costs prior to displacement
Compensations on crops and trees on real replacement values.
Land Owner/Occupier
Public Roads Act (chapter 69:02)
The law stipulates that land owners are entitled to reasonable compensation offered by government on customary land
The law stipulates that land owners can be compensated for land to land if alternative land is available.
The law stipulates that land owners can be compensated for land to money if there is not alternative land or if the offered alternative land is not economically productive
The policy stipulates that the recommended option is compensation of land for loss land. Other losses to be compensated at replacement costs.
The policy stipulates that temporary structures or buildings are entitled for in land compensation or cash compensation at full replacement costs including labour and relocation expenses prior to displacement
Compensation of land for land to project affected persons will be the first priority.
Compensation of money for land to project affected persons in cases of lack of alternative suitable land.
Compensation of all structures at full replacement costs and labour costs prior to displacement
Compensations on crops and trees on market values.
Resettlement assistance to project affected persons.
Land Owner/Occupier
Public Roads Act (chapter 69:02)
The law stipulates that no compensation to improvements on land within road reserves ( section 44)
The law stipulates that no compensation to squatters unless they occupy the land for continuously for a period of more than 7 years
The policy stipulates that persons are entitled to compensation regardless of the legal status of their structures or occupation of the land
The policy stipulates that owners of buildings built illegally are entitled to in land compensation at full replacement costs including labour costs prior to displacement.
Compensation of all structures at full replacement costs prior to displacement
Compensations on crops and trees on real replacement values..
Compensation on labour costs based on real replacement values..
Land Owner/Occupier
Land Acquisition Act (Chapter 57:04)
The law stipulates that compensation based on assessment done by government and agreed by parties.
The law stipulates that compensation given when land is acquired.
The law stipulates that compensation not to exceed market value.
The policy stipulates that owners of buildings built illegally are entitled to in land compensation at full replacement costs including labour costs prior to displacement.
Compensation of all structures at full replacement costs prior to displacement
Land Owner/Occupier
Land Act (Chapter 57:01)
The law stipulates that reasonable cash compensation to loss of affected persons for loss of land
The policy stipulate that owners of buildings built illegally are entitled to in land compensation at full replacement costs including labour costs prior to displacement.
Compensation of structures at full replacement costs and labour costs prior to displacement
Land Owner/Owner
Customary Land Act The favours land for land compensations
The policy favours land for land compensations in cases of loss of land by project affected persons.
The policy stipulates that owners of buildings built illegally are entitled to in land compensation at full replacement costs including labour costs prior to displacement.
Compensation of land for land to project affected persons.
Compensation of structures at full replacement costs prior to displacement
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10.0 INSTITUTIONAL ARRANGEMENTS
The framework is intended to assist all proponents implementing World Bank funded (Category B) projects.
10.1 COORDINATION OF THE FLAC
The overall coordination of the FLAC will be carried out by the Project Coordination Unit (PCU) to be located in the Ministry of Agriculture (See Annex 1 for Organogram for PCU and Annex 11 for Organizational structure for the
same). Specifically, the Monitoring and Evaluation Specialist (MES) will act as a link between the DADO at the District Assembly level and the PIU. The MES will
liaise with relevant technical services departments and the World Bank Project Task Manager for guidance on World Bank procedures.
11.0 IMPLEMENTATION OF THE PROJECT COMPONENTS
11.1 IMPLEMENTATION PROCESS
Implementation of FLAC activities will be coordinated through existing
structures of the MoA at Headquarters, ADD, District and EPA levels. At Headquarters level, the Project Implementation Unit (PIU) will work closely with
the Department of Irrigation and Planning Department in collaboration with other technical Departments. A Desk Officer appointed at ADD or Departmental and District level to act as a link on project activities at these
levels will also be responsible for linking information related to the FLAC.
At district level the District Assembly (DA) through the District Agriculture Development Officer (DADO) will have the overall responsibility for implementing the FLAC activities. The district Project Implementation Unit (PIU)
set up at each of the district will responsible for making final assessment and decisions relating to the FLAC.
The ADDs covering the target districts will be expected to play a crucial role of providing technical back up support services, monitoring, and evaluation of
compensation owing to the existing capacity constraints at district level. 11.2 PROCEDURES
Implementation of the framework shall require the following steps to be
undertaken: - 11.2.1 PUBLIC CONSULTATION AND PARTICIPATION
Public consultations through participatory rural appraisal or extended participatory rural appraisal shall be mandatory for all projects requiring
land acquisition, compensation and resettlement.
The aim of public consultations shall be to:
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1. Disseminate project concepts for proposed projects with a view to
provoke project interest amongst communities;
2. Determine communities’ willingness to contribute in kind towards implementation of the project;
3. Determine community willingness to contribute towards Demand Driven Project.
Experience shows that any successful community project owes its success to community participation and involvement from planning to
implementation. Community participation and community consultation shall therefore be imperative right from the planning stage in implementation of this framework.
Any Plans for involuntary acquisition of land and assets thereon and the
provision of compensation shall be carried out in consultation with the Displaced People or persons, and local chiefs such a manner that ensures minimal disturbance.
The Displaced Persons shall participate throughout the various stages of the planning and implementation of the land acquisition, compensation
and resettlement plans and processes. Prior to the preparation of the Resettlement Plans, the Displaced Persons, will be informed of the
provisions of this Framework and their entitlements at public meetings.
The Lands Acquisition Act (Cap 58:04) and the Public Roads Act (Cap
69:02) set out in detail, the procedures for the acquisition of customary land and freehold land by Government for public purposes.
11.2.2 LAND ACQUISITION PROCEDURES
Upon identification of the specific land area to be acquired, the DADO will initiate negotiations with the village heads and their ndunas, or
occupier(s) of customary land, registered proprietor or their representatives. Inter-departmental cooperation shall be utilized wherever
necessary to tap on the expertise and experiences of the various stakeholder institutions.
The DADO in consultation with the proponent shall prepare action plans for implementation of land acquisition and resettlement that comply with
the provisions of the framework. 11.2.3 NOTIFICATION AND VALUATION PROCEDURES
1. The Ministry shall by public notice to be published in the Daily
Newspapers notify the public of its intention to acquire such land.
2. A copy of such notice shall be served to each owner, occupier and
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person having an interest in the land or agent thereof, whose name and address are readily ascertainable.
It shall state:
(a) Government’s Proposal to acquire the land;
(b) The public purpose for which the land is wanted;
(c) The area of land required and the owners right to
compensation in accordance with the present Resettlement Policy Framework
(d) That the proposal or plan may be inspected at the Ministry or in the Office of the District Agriculture Development Officer or District Chief Executive during working hours; and
(e) That any person affected may by written notice object to the
transaction with reasons to the Principal Secretary of the Ministry within 30 days of the first publication of the Notice who will forward it to the PCU.
(f) That only objections other than those relating to the amount or nature, and method of payment of compensation shall be
admissible
3. The Ministry shall then value assets of the PAP/DPs. It will ensure
that the land is valued at the market value and notify landowner(s) (who may deem it necessary to obtain an independent valuation) the outcomes of the valuation.
4. Compensation shall be based on replacement value of similar land
or assets in terms of location and productive capacity.
5. Local practices should be taken into consideration when developing
methodologies or framework for loss valuation affecting them. 11.2.4 PROCLAMATION OF THE ACQUIRED LAND
The processes and procedures for proclamation of the land to be acquired
should follow the steps as provided for in the existing Lands Acquisition Act (Chapter 58:04) Sections 3-11.
The local communities shall be consulted on every step.
12.0 VOLUNTARY LAND CONTRIBUTION WITHOUT COMPENSATION 12.1 COUNTRY CONTEXT AND PRACTICE OF LAND CONTRIBUTION
1. For most development projects established in the 1960’s, the government
of Malawi relied on patriotism of the beneficiary communities to provide
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land for projects of national or community interest. Such projects have been implemented unimpeded. In such cases communities or their chiefs
have pledged their land as part of the villagers’ contribution towards government initiatives.
2. While this land acquisition practice may have had its merits, some
landowners have been made poorer. Mostly, the vulnerable people were
disadvantaged because they did not have a say in the land acquisition process. The situation was aggravated by lack of capacity on the part of landowner(s) to forward their grievances to those responsible including
the Courts of law to address their grievances;
12.2 PROCEDURES FOR LAND CONTRIBUTION Individuals or groups may choose to voluntarily contribute their land without
seeking compensation for use in community projects. Where such donations of lands for the Project are made, arrangements should be made to ensure that:-
1. The land is indeed voluntarily given,
2. The donor is the legitimate owner of such land or pieces of land;
3. The donor is fully informed of the nature of the community project and the implications of donating the property.
4. The Ministry shall, however, ensure that the following requirements are fulfilled:
In the case of customary land contribution, the Ministry shall
ascertain from the village head, the land Register or whichever is applicable in order to determine the person or persons who have the right over that land as ascertained by the local chief and other
bonafide local residents.
In the case of freehold land the Ministry shall ascertain the registered
owner or owners of the freehold land to be acquired from the land registers.
The Ministry shall commission a survey on such land to be acquired.
Thereafter a plan shall be prepared and certified to be accurate showing:
(i) Land to be acquired;
(ii) Names of the owners and occupiers of that land as far as they can be ascertained; or
(iii) A copy of such plan shall be deposited in the Office of the Chief Executive and another at the premises of the local chiefs.
5. Make an assessment in such a manner that the affected person does not
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suffer a substantial loss affecting his/her economic viability as a result of the donation.
6. In the case of Customary land, confirmation should be made by the village head and any beneficially owners in writing, that the land is free of claims or encroachments from any third party or parties;
7. Deeds of donation should be submitted, witnessed by a person authorized
under the Oaths, Affidavits and Declarations of the Lands Acquisition Act.
8. Declaration of Ownership with waiver of claims for affected assets should
be made.
Any voluntary contribution of land without compensation must be accompanied
by a consent form (annex III), which includes the name of the land donor(s), and details of the contribution (type, size, location, specified period of use etc. as
appropriate).
This should be signed by the land donor(s), including the male and female
heads of the household involved and/or any person(s) who has rights over the land.
Land contribution procedures shall ensure that persons affected either physically or economically by the Project maintain their livelihood.
13.0 INVENTORIES OF ASSETS DONATED OR ACQUIRED
An inventory of land donations and/or assets acquired will be kept. The
information will constitute the baseline for planning, progress reporting, and monitoring in sub-projects that require land for civil works. Information for
each owner or household who donates land or is affected by land acquisition
will be recorded on a proposed form shown in Annex II.
14.0 CATEGORIES AND IMPACTS OF LOSSES
As a result of the projects activities in the project areas, there will be a lot of
social impacts that will occur. The specific likely social impacts are shown in table 1 below.
Table 14.1 Categories of losses and their impacts CATEGORY OF LOSS IMPACTS OF LOSS
Planted fruit trees Increased poverty and loss of food
Planted non-fruit trees Loss of income and building materials
Groceries (shops) and other local
businesses
Loss of income and increased poverty
Rental income from houses (shelter)
and gardens
Loss of income and increased poverty
Physical (dwelling) shelter (houses)
including domestic animal shelter)
Loss of shelter
Farm land (gardens) and crops Loss of farmland leading to hunger and poverty
Relocation and disturbance Loss of cultural identity and disruption of normal life
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15.0 ELIGIBILITY CRITERIA
1. The procedures, for determining eligibility to Compensation, Resettlement
Assistance and Rehabilitation Assistance measures, and the actual Displaced Persons shall consider the following: -
(a) those who have formal legal rights to land, including customary and traditional rights recognized under the laws of Malawi. This class of people includes those holding leasehold land, freehold land and
land held within the family or passed through generations.
(b) those who have no formal legal rights to land at the time the census begins but have a claim to such land or assets provided that such claims are recognized under the laws of Malawi. This class of people
include those that come from outside and given land by the local chief to settle, and “mkamwini or mtengwa” in matrilineal society;
(c) squatters and encroachers who have no legal right or claim to the land they are occupying to the land they are occupying. This class
of people includes those that settle at a place on semi-permanent basis, or those settling at a place without any formal grant or authority.
However most the current scheme beneficiaries fall in category (a)
above
2. Displaced Persons classified under paragraph (a) and (b) shall be provided Compensation, Resettlement Assistance and Rehabilitation Assistance for the land, building or fixed assets on the land and buildings taken by the
Project in accordance with the provisions of this framework if they occupy the Project area prior to the Cut-off date (date of commencement of the Census). In any case, there will be need for: -
(a) an estimation of the time likely to be needed to restore their living
standards, income earning capacity and production levels, or at least maintain them at pre-Project levels;
(b) provision of development assistance in addition to compensation measures described in sub-paragraph (iii) above, such as land preparation, credit facilities, training, or job opportunities; and
(c) provision of; where displacement is unavoidable of residential
housing, or housing sites, or, as required, agricultural sites for which a combination of productive potential, locational advantages, and other factors shall be at least equivalent to the advantages of
the old site and assistance to Displaced Persons during relocation.
3. Displaced Persons classified under paragraph 12.1 (c) shall be eligible for compensation for the assets but not land
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4. Displaced Persons who encroach on the Project area after the Cut-off date
shall not be entitled to Compensation, or any Resettlement Assistance or any other form of Rehabilitation Assistance.
16.0 OBJECTIONS
All objections to land acquisition shall be done in writing to the Minister of Agriculture Irrigation and Food Security within 20 days after the public notice; or formal complaint lodged via traditional authority or District Commissioners.
17.0 GRIEVANCES ADDRESS MECANISM
Consensus and negotiation are central to addressing grievances. Generally, people are aware of their rights, their commitments to the country as citizens
and their allegiance to village and family issues. For that reason, many Government funded community projects have been implemented without
obstacles from displaced persons. However some projects have been known to stall due to delays in disbursement of compensation. Prior negotiations between Government representatives and project beneficiaries, is crucial to the success
or failure of any project. As a guiding principle emphasis should be put on simplicity and proximity of the conflict resolution mechanisms to the affected persons. The following should be noted:
17.1 DISPUTES OVER LAND ACQUISITION AND LAND ACCESS RIGHTS
1. Negotiation and agreement by consensus will provide the best avenue to
iron out and resolve any grievances expressed by the individuals, the land
owners, households or communities/villages whose land, assets or livelihood, or livelihood source might be negatively affected by the project’ activities. These grievances shall be channeled through local chiefs.
2. The MOAIFS should ensure that any consensus achieved is freely entered
into by the main parties involved. The general public should be advised clearly by the MOAIFS or other government representative as to who is responsible for the activity and the procedure for handling grievances or
compensation claims.
3. The issue will then go back to the community for discussion where the local chiefs and DC’s office will redress the matter of concern to assist the claimants. The mediation process will be implemented according to
traditional methods of mediation/conflict resolution. The resolution will then be verified and documented on the relevant consent forms as proposed in annex IV.
4. If an agreement cannot be reached at community level the aggrieved party
or parties shall raise their concerns with the MOAIFS team who shall refer them to the TA or their respective District Officials, within 20 days of the verification meeting.
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5. Any grievances related to land acquisition and/or land access rights
should be addressed during the verification and appraisal process. If a suitable solution is not found, the MOAIFS Team shall defer consent of
the project’s activity and such activity or sub-project shall not be allowed to proceed.
17.2 GRIEVANCES OVER COMPENSATION AND ENTITLEMENTS DELIVERY 1. Grievances resulting from all aspects of resettlements entitlements and
related activities shall therefore be managed as follows:
(a) Complaints and grievances will be filed with the District Chief Executive in consultation with the local chiefs who shall maintain a records book where grievances and complaints will be recorded
including minutes of discussions, recommendations and resolutions made.
(b) Grievances that cannot be resolved at the district level shall be
officially referred to the Project Coordination Unit (PCU). Should
grievances remain unresolved at the PCU level, they can be referred to a court of law.
18.0 ENTITLEMENTS
Entitlements for compensation shall be based on the criteria above and the various categories of losses identified in the desk studies and field
consultations. The matrix below will be used in the settlement of claims for compensation for lost assets of PAPs/DPs based on the aforementioned principles and legal framework where land is involuntarily taken. Unless
otherwise indicated, payment of compensation and other entitlements and the extension of assistance will be given to PAP/DPs’ households and not
individuals. In dealing with compensation, preference shall be given to land based
resettlement strategies for displaced persons whose livelihoods are land-based.
If land is not the preferred option for the displaced persons, the provision of land would adversely affect the sustainability of the project, or if sufficient land is not available at a reasonable price, non-land based options built on
opportunities for employment or self-re-employment should be provided in addition to cash compensation for land and other assets lost. However the lack of land shall be documented and justified.
In addition to these entitlements, households who are found to be in difficult
situations and are at greater risk of impoverishment (i.e. widowed household heads, households without employment, single parent households etc) as identified by the census will be provided with appropriate assistance by the
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DADO.
Table 18.1 Compensation Entitlement Matrix
TYPE OF LOSS ENTITLEMENT Land (Farm and other
class of land) Cash compensation at market value or replacement of agriculture sites for which a
combination of productive potential, locational advantage and other factors are at least
equivalent to the original land.
Dwelling houses/Structures
1. Cash compensation at replacement cost including labour cost for reconstruction as
determined by a licensed independent appraiser.
2. Where the impacts include physical relocation, the DP shall be provided with:
a) Assistance allowance (such as moving allowance) during relocation.
b) Residential housing or housing sites as
required
Shops/Groceries and
other businesses 1. Cash compensation at replacement cost
including labour cost for reconstruction as
determined by a licensed independent appraiser.
2. Calculated loss of income from their businesses during reconstruction of their
shops or an amount not exceeding one month of their computed income to be
determined by an independent appraiser; whichever is larger.
Squatters and encroachers shall only be compensated for their loss of income
Planted fruit and other trees
Cash compensation at market value.
The District Office shall furnish the Ministry with the necessary information. Assistance may be in form of food, temporally accommodation, medicine
subsidy, employment referrals or priority employment in project activities. The assistance is meant to help them cope with the displacement caused by the project.
19.0 PROCEDURES FOR PAYMENT OF COMPENSATION
Payment shall be made in the following ways: -
1. By agreement between the government and the landowner(s):
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(a) The government shall offer such sums deemed adequate as compensation to that person; and that person may accept that
amount as compensation payable to him.
(b) Such sums will be disbursed to the Chief Executive Officer (CEO) for the district in question for payment to the DPs. The CEO shall maintain a record of DPs, their claims and entitlements. After
payment of such sums, the CEO shall document the name(s) of the DP, the amount of compensation and the records of how the compensation was arrived at. A copy of such records shall be made
available to the government and local chiefs.
2. By the Court if there is no agreement: -
(a) If the compensation payable is not agreed upon between the
government and the land owner, such compensation shall be determined by the Courts of law.
3. Claim for compensation statute barred: -
(a) Every claim shall not be entertained after five years from the date of the Proclamation; and or 12 months after the execution of the purpose out of which the claim has arisen in respect of any damage
done to the land acquired.
Payment of compensation shall strictly be based on results of the census and shall be recorded in the register at the District office and a copy to be with TA for record purposes and future reference. A proposed copy of the inventory form
is attached in annex V.
20.0 RESETTLEMENT PLANS
The Ministry of Agriculture and Food Security shall make sure that following the census; a comprehensive resettlement plan is prepared for each component. In this undertaking, the Ministry may employ the MOLH or a private
consultant(s) to provide valuation services required for the development project. The cost of such an assignment shall be financed by the government and in
case of involuntary resettlement; approval of the new pieces of land to be used for resettlement purposes shall be sourced and approved by Government in consultation with local communities. The process of preparing the plan will
involve the following: -
20.1 CENSUS AND INVENTORY SURVEYS 1. Using information from 10.7 above, a census shall be carried out to
identify Displaced Persons in accordance with procedures, satisfactory to the Ministry.
2. The census will generate information about the Displaced Persons, their entitlements regarding compensation, resettlement, resettlement and
25
rehabilitation assistance as required;
3. Disturbances, especially those affecting income-earning activities, should be properly recorded for the sake of compensation or replacement in case
of resettlement. 5. Based on the census and inventory of losses, and in consultation with the
Displaced Persons, a time phased action plan with a budget for provision of compensation, resettlement, and other assistance as required shall be prepared.
To ensure transparency of procedures, Displaced Persons shall be informed of
the method of valuation employed to assess their assets, and all payments of Compensation, Resettlement Assistance and Rehabilitation Assistance, as the case may be, shall be made in the presence of the Displaced Person in question
and the local chiefs.
20.2 TIME FRAMES
The following timeframes shall apply unless otherwise agreed between the
MOAIFS and the Recipient; provided, however, that no such agreement to waive the timeframes shall adversely affect the rights or interests of Displaced Persons under this Framework:
1. The inventory shall be completed at least four months prior to the
commencement of work. 2. The Resettlement Plan shall be submitted to the government for its
approval. 3. Compensation, resettlement and rehabilitation activities shall only
commence after the Ministry and Project Displaced Persons have accepted the Resettlement Plan.
4. Compensation payments for acquired land and affected assets,
resettlement of households and documentation/validation of voluntary
land donations, as described above, must be completed as a condition for taking away of land and before commencement of civil works under the
project. The compensation, resettlement and rehabilitation plans, if any, shall be
completed at least one month prior to the commencement of work. Timely attention should be paid to both the displaced and host communities even if it means mere consultations with host communities before bring new comers.
21.0 BUDGETARY IMPLICATIONS AND FUNDING
Each inventory, land transactions and resettlement plan shall include a detailed account of compensations and other entitlements, with an outline or
26
replacement and or rehabilitation costs for agriculture, residential land, houses, and other structures, businesses, and assets including public facilities, services
and utilities.
Funds for implementing inventories as well as land acquisition and resettlement action plans will be provided by MOAIFS through the concerned District Irrigation Officer based on budgetary requirements established by the project in
consultation with PAPs/DPs and local chiefs. 22.0 MONITORING AND EVALUATION
1. Implementation of the plan shall be supervised by the Project Technical
Committee (PTC) based at the district. The PTC shall record the findings and report regularly to the Project Management Team with copies to the Chief Executive Office in the respective district. The report shall include:
(a) Confirmation and verification that all the baseline information has
been captured and that the valuation of lost and or damaged assets and provision of compensation and other entitlements have been carried out in accordance with this framework;
(b) Verification and follow-up meetings that will make sure that
resources for implementation of the plan are provided by the
proponent in a timely manner and in accordance with respective agreed plans;
(c) Records of all grievances and resolutions made for reference as well
as ensuring that grievances are dealt with on time; and
(d) Records of people compensated or resettled with confirmation that
the resettlement plans have been fully implemented to the
satisfaction of the DPs;
2. The progress of implementation of the Land Acquisition and Compensation Plan will form part of the quarterly reporting by the District Irrigation Officer to the government. Further, at the end of the
project a resettlement audit which is an investigation and reporting on the land taken up by project activities, the people affected and all the
processes involved will be undertaken. This audit will provide input into the Implementation Completion Report (ICR) of IRALDP.
ANNEX III CONSENT FORM: VOLUNTARY LAND CONTRIBUTION
Ministry of Agriculture Irrigation and Food Security
Consent Form: Voluntary Land Contribution
Date…../…./………
Name of Land Owner (s)
1. 2.
3. 4.
Village:
T/A:
District:
Location of Land:
Class of Land (Please tick): Freehold □ Leasehold □ Customary □
Land holding size:
Contribution Type (Please tick):
Voluntary □ Involuntary □
Period of Use: Short Term (Specify) …………………….
Indefinitely
Losses as a result of land contribution
Loss Category Value of Loss
Certification of land ownership
I certify that this land legally or traditionally belongs to: ……………………………………..
of……………………Village, TA…………………… in …………………………….District ……………..…………….. ………………….………. Chief/TA Signature (Or his representative) Date…/……./………..
Declaration of landowner(s)/ Occupier (s)
I declare that this land belongs to me/us and I/we hereby contribute it free of charge for a community project ………………….….. ………………………. Landowner Signature
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ANNEX IV GRIEVANCE ADDRESS CONSENT FORM
Ministry of Agriculture Irrigation and Food Security
Grievance Address Consent Form
Date…../…./………
Name of Land Owner (s)
1. 2.
3. 4.
Village:
T/A:
District:
Location of Land:
Class of Land (Please tick): Freehold □ Leasehold □ Customary □
Land holding size:
Contribution Type (Please tick):
Voluntary □ Involuntary □
Period of Use: Short Term (Specify) …………………….
Indefinitely
Type of Grievance
Was the grievance settled amicably (please tick
Yes No
Certification of land ownership
I certify that the grievance or complaint was amicably settled between both parties. ………………….. ……………………. Chief/TA Signature (Or his representative) Date…/……./………..
Declaration of landowner(s)/ Occupier (s)
I agree/do not agree my grievances were addressed according to my satisfaction ………………….….. ……………………….
Landowner Signature Date…/……./………..
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ANNEX V INVENTORY FORM: LAND ACQUISITION
Ministry of Agriculture Irrigation and Water Development
