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No Consent in Nimiyama Chiefdom

For one woman in Nimiyama Chiefdom in eastern Sierra Leone, the first sign of trouble came when she went into her family’s fields to brush for planting and was told to leave immediately because the land had been “sold.” For another landowner, it was when a group of people entered and surveyed his family lands without his consent – and just told him to take the issue up with his chief. And for many, it was the seven-foot poles erected in their backyards, signaling that their lands are in the process of being handed over to a foreign company.

In July 2014, Namati took up the case of landowning families in Nimiyama Chiefdom in Kono District, a district known for diamond-rich soils and for being a main battleground during Sierra Leone’s decade-long civil war. While diamond operations continue, new enterprises entering Kono are coming for agribusiness. In Nimiyama’s case, a Chinese company has recently concluded a Memorandum of Understanding (MOU) with local chiefs for a large-scale rubber operation. As one community activist remarked: “It was diamonds in the past, now it is rubber.”

At the request of Nimiyama landowners, Namati traveled to Kono to meet with over fifty individuals and conduct interviews of twenty heads of landowning families and activists from five villages. They overwhelmingly stated they had not been apprised of the MOU’s content, did not consent to the MOU, and actively oppose the sale or lease of their land.

As one landowner said: “We have been using the land for farming, especially now that our government has been advising us to do more farming rather than mining.” Another landowner said, “This is devastating. These lands have been the sources of our sustenance and the support for schooling of our children.”

The fear in Nimiyama was clear as residents paused their interviews to observe passing cars. We interviewed a man who alleged that he had been beaten in the stomach and back for speaking out against the land deal (his case is pending with local police and he is unable to afford the necessary medical treatment). Another woman from a landowning family recounted how after she “loudly made clear that I will forever remain against the sale of our land by the chiefs,” she was arrested, beaten, and detained for three days until she paid a fine.

In Sierra Leone, nearly one-fifth of the country’s arable land is now covered by or under negotiation for large-scale lease agreements, aiming to extract deposits of iron ore, platinum, gold, diamonds, bauxite, and rutile and to utilize the fertile land to produce ethanol, rubber, oil palm, and other agricultural products. The Government of Sierra Leone points to the burgeoning minerals and agribusiness industries as having the potential to lift Sierra Leone to a middle-income country by 2035, in addition to bringing jobs, health clinics, and schools. Sierra Leone boasted a GDP growth of 20.1% last year, but its Human Development Index remains one of the lowest in the world.

Namati’s past experience shows that many mining and agribusiness activities result in paltry rents for large tracts of land, extracted resources sent almost exclusively to foreign countries, and a net loss to the communities most acutely affected by the business operations. Namati’s experience has also shown that the very landowning families that will be most affected by deals are often marginally consulted or altogether ignored in the land acquisition deals. Nimiyama is a case in point.

Under Nimiyama’s customary law (law based on traditions and culture), families are permitted to own land. But the Provinces Land Act—a vestige of British indirect rule—declares that all lands in the provinces are vested in the tribal authorities (now Chiefdom Councils) who hold land “for and on behalf of” the communities concerned. The law placed ultimate decision-making authority with chiefdom authorities, undermining customary family rights to manage their land. Today, the Act continues to generate confusion—specifically over whether chiefs are at liberty to lease family lands and under what conditions. As Nimiyama residents explained, the chiefs, elected for life terms, often claim they “own” the land. While the recently enacted Local Government Act of 2004 states that Chiefdom Councils shall hold land “in trust for the people of the Chiefdoms,” it does not specify the duty to consult with families in deals over their land.

Multiple reform efforts are underway to include communities in land negotiations, but none currently provide enforceable rights. For example, Sierra Leone’s draft Guidelines for Sustainable Agricultural and Bioenergy Investment outlines a streamlined process for community consultation on land deals. The Draft National Land Policy announces a vision for safeguarding local interests while accommodating investments. However, Parliament has not integrated them into binding law. Similarly, the Code of Ethics and Services Standards for Chiefs of Sierra Leone, a project spearheaded in 2013 by the Ministry of Local Government and bearing the signatures of all 149 Paramount Chiefs, states that chiefs should “ensure that the interests of the people/communities are met in any dealings/agreements with commercial entities/investors,” but enforcement is only through “self-regulation.”

At the international level, human rights law does not require states to regulate the extraterritorial activities of businesses domiciled in their jurisdiction, giving foreign companies in Sierra Leone leeway to negotiate with only those individuals favorable to their entry. To fill this gap, the U.N. has introduced the Voluntary Guidelines for the Responsible Governance of Tenure, an instrument calling on transnational businesses to respect legitimate tenure rights.

Given weak protections for family land security, Namati is drawing from multiple sources of law recognized by the Constitution of Sierra Leone—including customary law, common law, and statutory law—to squeeze justice out of the current system. In the Nimiyama case, Namati is supplementing the vague statutory provisions onland tenure with principles from the common law of trusts—British judge-made law that remains influential in legal systems derived from the former colonial power—to argue that chief agreements made against community wishes breaches their trustee duty to administer affairs solely in the community’s interest. Namati is also invoking the Code of Ethics to argue that one of the substantive duties of chiefs as trustees is to incorporate the interests of communities in dealings with foreign companies. Drawing on customary law, Namati additionally emphasizes the rights of families to manage their family land.

Namati hopes that its legal representation of Nimiyama residents will send a clear message that powerful interests cannot operate with impunity, even in rural Sierra Leone. In a country with approximately 400 lawyers, any legal representation sends a strong message. While communities themselves have little legal recourse, under the Constitution of Sierra Leone, a Paramount Chief may be removed from office by the President for “any gross misconduct in the performance of the functions of his office.” Last month, President Koroma fired a top executive official for an illicit timber export license. With enough pressure and creativity, Namati hopes to encourage local authorities to engage in ethical and equitable dealings with foreign companies so that the deals benefit the affected communities. As one Nimiyama activist stated, “We don’t have to say ‘no’ to investment. But, we don’t accept this deal through this current leadership.”

Karima Tawfik is a summer Law Fellow for Namati in Freetown, Sierra Leone. She is a J.D. candidate at the University of Michigan Law School. 

Interviews by Hassan A. Sesay, Daniel Sesay, John B. Kargbo, and John Y. Tarawallie during Namati’s visit to Nimiyama Chiefdom contributed to the content of this blog.

July 22, 2014 | Namati Author

Region: Sierra Leone   |  Western Africa