Update on Lesotho Highlands Water Project - February 2016

Many of the poorest communities in Lesotho have been resettled, in the wake of the massive ‘Lesotho Highlands Water Project’, which is a multiyear infrastructure construction of a series of dams and transfer tunnels, taking water from the mountains of Lesotho, and tunnelling it down to South Africa, who pay a healthy price for it, and thus contribute substantially to the Lesotho economy.

In July last year, a tiny community in the mountains of Lesotho finally brought the Lesotho Highlands Development Authority (LHDA) to the Commercial Court in Maseru, after years of prevaricating battles, including preliminary applications, obfuscation, delays, failed attempts to settle, and a range of other less obvious tactics which to the outside observer have frequently called into question the integrity of the LHDA itself. One of 64 cooperatives which were set up as legal entities to represent the interests of the resettled, in the wake of a massive displacement programme, the Ha Lejone Cooperative members had been left without compensation for fodder, brushwood, medicinal herbs and other sustainable assets, since 2004. Molete J, in his ruling, in September 2016, declared that the Ha Lejone Cooperative was indeed entitled to payment, subject to certain conditions, one being that the Cooperative should take steps to produce accounts, for which purpose he ordered that they should receive a third of the sum currently due. This ruling has had the impact of breaching the notional wall which the LHDA has built between the 64 cooperatives and the compensation to which they have been long entitled.

The LHDA then waited a further four months, with a threat of enforcement proceedings finally prompting it to pay that first third to the Ha Lejone Cooperative, three months after judgment had been handed down. The Ha Lejone Cooperative is now putting its financial house in order, following which the remainder of the sum due will be sought from the LHDA. The LHDA continues to resist the idea that it must also pay the interest due on compensation, which has mounted to a staggering sum, being the commercial rate over the last 14 years. One can understand why the LHD is fighting every inch of the way, as there are now 63 other cooperatives standing in line, waiting to use this precedent to ensure that they all too receive their overdue compensation. In some cases, these communities have received nothing at all, since the moment when they were involuntarily resettled, in 1996, making way for the Katse Dam, a modern miracle of science and technology, which daily yields huge sums for the wider benefit of the Lesotho economy. The value of 64 such claims ultimately runs into billions of rand, and mounting. It may be that the LHDA cannot afford to pay.

However, this individual case raises a far larger question of international law: when communities are resettled, what in fact constitutes compensation, if such communities are to be restored to the position they occupied before resettlement? It is obvious that such communities need more than just money, to return to health, and flourish: for example, an experienced pastoralist, who has spent his life tending cattle ranging across the Highlands of Lesotho, is likely to have great knowledge and understanding of how to manage those cattle, previously ensuring the sustainability of his family and by extension, his community life. He is not so easily able to draft a business plan, and move into the world of the Small and Medium Enterprise, (SME). It seems that to date, the LHDA has failed to include any technical assistance in what is offered to the resettled.

In a recent meeting of the lawyers who are working on this project, the legality of the Treaty which established the Lesotho Highlands Water Project came under question. How should the care of these communities, in their transitions from old lives to new, be encapsulated in the law? The LHWP Treaty, brokered secretly in London by Mrs Thatcher in 1986, predates the formal abolition of apartheid, and therefore does not reflect the provisions of either of the Constitutions of Lesotho and South Africa. The legal team is now considering the bases upon which a challenge can be mounted to the LHWP Treaty, in the constitutional courts of Lesotho and South Africa.

Meanwhile, the impact of the litigation is emerging in encouraging initiatives from the LHDA. It appears to be considering, before the next construction phase of LHWP, how it is going to assist future resettled communities to generate incomes after they lose their homes and land to the next Dam. The legal team has been invited to engage with the LHDA on this issue, some 7 months after its refusal to attend a mediation, or engage in settlement talks. It may be that the Protimos/Seinoli legal team’s approach, with the carrot of mediation accompanied by the stick of a successful judgment will yield a series of impacts which will begin to determine and articulate the way in which resettled communities are treated by state agencies. More important still, major lenders such the World Bank, as they provide financial backing for these kinds of infrastructure development projects, may now begin to take note of the inadequacy of existing legal mechanisms which seem unable to ensure that communities are treated lawfully, and according to the body of international and domestic law which is expressly enacted to protect those who are involuntarily resettled or relocated. Any proposed review of the LHWP Treaty will focus the international community as a whole, upon an issue which is of global application. Readers are invited to keep an eye out for further developments!

Fiona Darroch



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