By Kemo Cham
Last month the International Criminal Court (ICC) announced a landmark development in its mandate.
The office of the Prosecutor said it was expanding its mandate to include cases of environmental destruction, which include issues of land-grabbing.
This means that governments and individuals who help broker deals that lead to such environmental problems could face prosecution for crimes against humanity.
In Sierra Leone there are a lot of such potential cases, say campaigners, given that the country is a magnet for foreign investors seeking to explore its natural vegetation and mineral resources.
Already there are complaints about pollution of water sources and deprivation of whole communities of their farmlands, leading to hunger in such communities.
A rights group, NAMATI, has been working with communities across the country affected by such environmental issues.
In this edition of The Interview, Politico talked to Lawyer Sonkita Conteh, Director of the legal empowerment group, about their reaction to the ICC announcement.
Politico: Please tell us briefly what Namati does.
Sonkita: Namati is a legal empowerment organization. Basically what we do is take the law to the people. We make sure that the laws do not remain in the books, that people understand the law and are able to use the law to defend their rights and other interests. And in this respect we work on two main issues in Sierra Leone. One is environmental justice. We seek to ensure that companies and other players comply with environmental regulations. And where they breach those regulations we take them to court or we push for some sort of remedy of those violations.
Politico: When you say breach what exactly are you talking about…?
Namati: I mentioned that we work on two areas. Environmental justice is one. The other one is community land protection. Now for this we provide legal services to communities that interact with investors, on one hand. So where we are aware that an investor wants to obtain land from communities we provide legal services for these communities to ensure that they understand the processes, and to ensure that the agreement that emanates from these discussions are fair and balanced and represents sober compliance with the laws of the land.
Politico: Do you provide these services free to the communities?
Namati: Yes, absolutely. We provide our services to these communities free of charge. And one key thing about our work is that we are not a retail service … We don’t just provide legal services, we provide legal empowerment services; meaning that as we go along communities understand exactly what their roles are, what their rights are and they are in the position to deal with those issues themselves if their rights in the future were violated.
Politico: Ok, in light of the subject that we are talking about. What was your reaction when you heard about it?
Namati: Well, I couldn’t believe when I read some sort of a report from Global Witness. So I went to the primary document itself, and I went through it and saw that yes indeed the office of the prosecutor of the ICC had issued some guidelines for prosecutors which she had made public. Now what thrilled me was that paragraph 41 of that particular policy document stipulates that when the office of the prosecutor would be looking at the major offences, the offences that the ICC was created to deal with – war crimes, crimes against humanity, genocide and the crime of aggression - they would now begin to look at issues relating to environmental destruction, land grabbing and unlawful exploitation of natural resources.
So what that means is the ICC is now broadening its investigative and prosecutorial scope, in the sense that in the past when you talk about war crimes and crimes against humanity, you mostly would be thinking of the mass killing of people, and rape and other kinds of pillages that occur. But here we are talking about the ICC now been holistic in its approach, that those offences could still be committed by acts which destroy the environment which people rely on, acts which take land from people; of course we know that land is very important, which deprive people of the ability to engage in livelihoods, acts which exploits unlawfully the natural resources that people rely on to improve their lives.
So essentially what this means is the ICC is now, or at least the prosecutor of the ICC, is going to be taking a much broader look at what would constitute the characteristics of those offences.
Politico: And as you read that document, did cases that you have dealt with, which fit that profile, come to mind?
Namati: Well, definitely when you look at the kind of issues we are dealing with in this country…now the country has opened up. Of course, with Ebola things have gone back a bit. But there was a time when all kinds of corporations were coming in to secure land for either agriculture or mining. And our experience shows that in many of these cases people were not properly engaged, people who owned the land, the land owning families, the land users, did not properly consent to some of these arrangements. And you will find that companies would come with the blessing of government officials or the government as an entity, and people would be deprived of the ability to actually say no to some of these deals.
I think it is important for us to understand that even at the domestic level that is an unlawful act, where you go in and take land without the consent of those who own the land, or those who have right to the land. You are breaching domestic laws, and you are acting illegally. And so the ICC expects governments to take action, to prevent those kinds of situations occurring.
But then now we see that it has been elevated to the level where it could constitute part of their investigations into crimes that they have jurisdictions over.
And so yes, we do see those kinds of issues cropping up. And at the moment we are representing a number of communities… Currently we are negotiating about 23 contracts between companies and communities in Sierra Leone and our push is to make those contracts fair, balanced, compliant with regulations and actually protect the rights and interests of these communities.
Politico: These are contracts that are in preparation stages…?
Namati: Well some of them are new, so we are dealing with a draft from scratch. Others had already been signed and registered, but they are terribly one-sided. They completely ignored very basic provisions that protect the environment or secure the rights and interests of the communities.
So for some of those we are reopening them and the companies are willing to work with us to reopen those agreements and make them better for those communities.
Politico: Ok, now back to the ICC… I am sure I haven’t read as much as you have about this latest development. We do know [however] that the ICC and other international bodies operate in such a way that they intervene when, whatever case it is, has not been handled properly at home. What is it going to be here…are they going to jump in only if you are not comfortable with the local justice system?
Namati: No. Well that will not happen and the ICC will still follow its existing mandate, which is to complement the efforts of state parties, and Sierra Leone is a state party to the Rome Statute.
So essentially what will happen is the ICC would work with the local authorities to ensure that they have the capacity to prosecute these kinds of offences, to deal with them. And where they are unwilling or unable to do that, then the ICC would step in and take action.
The importance of this is that – this whole thing about environmental degradation, about land grabbing and unlawful exploitation of resources - is no longer a local matter, it’s no longer a national matter, it now has been elevated to the level of international realm.
And I have read a couple of critical comments about the motivation for the ICC to issue out these kinds of directives to its prosecutors, but I think many of them are unfair because clearly we see the mad rush for land in Africa, because mostly the land is cheap in Africa and there is less regulation in Africa. So all kinds of companies are coming in, some of them are not actually genuine investors; they are coming in to make a quick buck, come in to get fifty, sixty thousand hectares of land and then look for somewhere to sell the land. Meantime they are paying the communities US$2 per hectare. And so genuinely they are not coming in to work with communities or the government to ensure that both sides win.
Unfortunately, you also have government officials who are not working in the interest of their people. They are also keen on making a quick buck by aligning themselves with the interests of these companies. So they turn a blind eye to many of these provisions. Sometimes we are amazed at the contents of some of these agreements, and you wonder like, where are the people who are supposed to be vetting these kinds of agreements. Didn’t they see these copies before people put their thumbs to them?
And unfortunately it’s worst because our people in the rural areas do not understand English. And these agreements are done by company lawyers, they are taken to them, and they tell them here is the rents, and just put your thumb prints onto this thing and we are good to go for 50 years. And then when you go now with a copy for the agreement and you begin to interpret that agreement in Temne, or in Mende or in Limba or in Loko to them, and they begin to understand it, you see the change in their countenance. But we tell them that there is your thumb print, there is your Paramount Chief’s thumb print.
Politico: But in the law, even before the ICC comes in, isn’t there any provision to ensure that these people know what they are getting into before they get into it? Because all what we are hearing is that they are fooled into it.
Namati: Exactly; upcountry we have different systems. There is the customary system, which put the chiefdom council as the custodian, more like the trusty of the land. And the chiefdom council, as the trusty, is expected to undertake due diligence…You don’t involve yourselves in transactions that you don’t understand. And if it involves specialist assistance then you must seek specialist assistance. And we see that often they don’t even bother doing that or they simply look to the company.
We have had situations where the company would have lawyers draw up agreements and the company would say let’s pay for lawyers for the communities.
Now you know the saying that he who pays the piper calls the tune. There is a clear conflict of interests where the company pays lawyers on both sides.
So we have challenged a number of these deals on the basis that you cannot have a fair deal if the company is paying for lawyers for the other side.
Politico: These chiefdom authorities you mentioned. Should they be concerned about this ICC development?
Namati: They should be concerned because now it’s very clear that the ICC’s eyes are basically on countries that are at risk. And Sierra Leone is one country that is at risk, because companies come in to exploit all kinds of minerals here. They come in to set up all kinds of plantations here.
And we have records of some of these transactions not complying with best practices or even our local laws. So definitely every single person must be concerned because now there is the potential that we could become part of an investigation into some of these offences, if we are not careful.
Politico: I know there is this issue about the ICC wherein countries that are not signatories to its treaty are not accountable; their citizens don’t get prosecuted. We know that China, for example, is not a signatory, and most of our investors here are Chinese. Recently there was report that you [Namati] won a case relating to a Chinese company.
So when we get to these kinds of cases how do we handle them?
Namati: That’s a valid point and that perhaps would be one of the weaknesses to international mechanisms to enforce justice because it’s based on the consents of states.
However, there could be ways to go around that. So, for one, the [United Nations] Security Council could refer certain cases. So if it gets to a point where it really requires the attention of the ICC, the Security Council, for example, could say ICC please investigate these kinds of issues.
And not being a party to it is, in actual fact, not a complete exoneration. Because Sierra Leone is a party and Sierra Leone is the place where these acts are happening, the ICC will be in the position to investigate and take action on those cases because Sierra Leone is a party to these proceedings. I think most of that they would really quite fall on the government because the government as a state party has obligations when it comes to these kinds of issues.
So it’s important that our government really ensures that companies that are operating here are properly regulated. And I think there is light at the end of the tunnel because last November the government adopted a land policy which has been billed as quite progressive and it really speaks to international best practices.
So now the challenge is to implement those provisions by turning them into legal provisions and then getting people to understand and then use them. The policy is beautiful, it’s fantastic, but then we need to bring the policy to life.
Politico: On a final note….how many cases have you handled and how many of them have you been able to win for communities you have helped.
Namati: Well, the interesting thing is our approach relies mostly on negotiations, on getting these companies and the communities together and resolving these disputes without going to court.
Court for us is a last resort. So, maybe less than 10 percent of our cases go to court. What we get in return, when we use the letter of the law to tell companies that listen, if you don’t sit down and negotiate with these communities properly, if you don’t accede or if you don’t remedy these breaches of regulations, we can take you to court, they see reason and they comply.
Currently, our offices are handling over 30 cases, ranging from negotiations, which I just mentioned, and then enforcing compliance.
In the north, for example, we are working with several communities within the Addax project. There they have complained of pollution of water sources and things like that. And in the north also we are working with communities like Port Loko, where a company called Sierra Leone Agricultural is operating. There is couple of complaints that we are handling and the good thing is that the company is willing to engage with us. So we are actually making significant inroads with some of these issues.
Politico: You just mentioned that in the north you have complains against companies …. Do you mind mentioning one?
Namati: I mentioned Addax … especially a village where the factory is located. They have complained of pollution to the river, within their own localities. The factory is there and the factory processes sugarcane and converts it to ethanol. So there has been some problems relating to how they dispose-off the waist, and so we are looking at those issues.
And of course we realized that Addax has some problems. We read in the papers that a Chinese company has bought over Addax. So we are waiting to see, we are just waiting for someone to take over Addax and then we will proceed with that matter.
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