Summary

Some things are getting better. There is electricity in the next village, and we may get electricity here, too. But none of that matters if our land is gone.

–Nu Yee, San Klo, Karen State, February 2015

The businessman takes the land from the farmer, but when the farmer protests, he becomes the criminal.

–Lawyer, Hpa-an, Karen State, August 2015

In Burma, where 70 percent of people earn a living through agriculture, securing land is often equivalent to securing a livelihood. But instead of creating conditions for sustainable development, recent Burmese governments have enacted abusive laws, enforced poorly conceived policies, and encouraged corrupt land administration officials that have promoted the displacement of small-scale farmers and rural villagers.

Conflicts over land have come to the forefront of Burma’s national agenda in recent years. These tensions have intensified as the country has embarked on a process of democratic transition and reform, with greater openness in some areas, but continued military dominance in other sectors, particularly where the military controls key government ministries.

Land disputes are a major national problem, with rising discontent over displacement for plantation agriculture, resource extraction, and infrastructure projects—often without adequate consultation, due process of law, or compensation for those displaced. In many parts of the country, those contesting land seizures have taken to the streets in frequent demonstrations but have faced retaliation in the courts.

The dual problems of land confiscation and reprisals against protesters is particularly acute in Karen State. Located along the border with much more prosperous Thailand, Karen State is viewed by many as a desirable site for investment in the tourism, extractive, and agriculture industries.

The economic opening of the country to investors has made land more valuable, while the peace process in Karen State and other ethnic areas has given access to areas previously beyond the reach of the Burmese armed forces and military-linked businessmen. The result is that powerful interests are gaining land through questionable means while farmers are losing it, often without adequate compensation.

Launch Gallery

As peace negotiations continue and the return of refugees from Thailand gains credence,land tenure issues will likely intensify, particularly as those who return find that land they previously farmed has now been occupied by government or business interests.[1]

This report focuses on government abuses related to land confiscation in areas near Hpa-an, the capital of Karen State. The villages in this area are under the effective control of the Burmese military, called the Tatmadaw, and military-controlled militias called Border Guard Forces (BGFs), or are located in areas of mixed governance by the ethnic armed group Karen National Union (KNU) or other militias and the government.

The report illustrates the dynamics of land confiscation in Karen State—a longstanding problem previously documented by Human Rights Watch and local organizations such as the Karen Human Rights Group.[2] It details cases in which government officials, military personnel and agents on behalf of the army, local militia members, and businessmen have used intimidation and coercion to seize land and displace local people. It also documents the impact of land loss on local villagers, some of whom have farmed land for generations but lack legal documentation to prove it.

Launch Map

Human Rights Watch found that farmers who protest land-taking and try to stake a claim to their land face retaliation by police and government officials, and prosecution under peaceful assembly and criminal trespass laws. Many farmers whose land has been confiscated as far back as a decade have not been able to obtain any redress and, in some cases, continue to suffer abuses after calling for compensation or attempting to reclaim land. The government’s failure to provide adequate compensation or other redress for land confiscation means that victims struggle to make ends meet, and frequently must become migrant workers abroad or rely on relatives working in Thailand or elsewhere abroad for economic survival.

Villagers and local groups say that government land registration services are effectively inaccessible to them, and farmers assert that local government offices fail to uphold their rights against more powerful moneyed interests. In some cases, villagers allege that local government officials have acted as brokers for land deals or facilitated the granting of licenses for mining and other projects, leaving long-time residents and farmers empty-handed and without effective recourse.

Burma’s departing national government adopted a cabinet resolution to enact a National Land Use Policy in early 2016, which could form the basis of future land law reform. The new policy aims to improve land classification and land information management systems, recognize communal tenure systems and shifting cultivation practices, create more independent dispute resolution procedures, and provide restitution for victims of land confiscation or those who have been forced to abandon lands due to past or ongoing conflict.

In November 2015, the opposition National League for Democracy (NLD), led by Aung San Suu Kyi, swept nationwide elections. The party assumed executive power in March 2016 and appointed U Htin Kyaw as president. Since then the NLD government has made little progress on reforming land policy to advance these policy goals or otherwise ensure that rights are protected.

To address the problems facing farmers and other villagers such as those detailed in this report, the government should adopt additional safeguards (see Section IV). Crucial is tackling the significant gap between government documentation of land rights and the manner in which land is actually being used or occupied, and by whom, in rural communities. Measures to be adopted should include recognizing community land tenure systems and shifting cultivation systems, providing formal documentation to farmers and villagers recording existing land use, and ensuring that villagers can challenge government decisions about land in an independent forum or body with the power to adjudicate land disputes.

In addition, the government should enact administrative changes to ensure that land reform at the national level results in actual changes at the local level, including by providing genuine notice to farmers where proposed land use changes would affect their livelihoods, and by implementing robust public consultation procedures. The government should also end the arbitrary arrest and detention of land activists for engaging in peaceful activities to protest land seizures.

A special taskforce consisting of the Burmese Defense Services (Tatmadaw), the Justice Ministry, and the Myanmar National Human Rights Commission should investigate all alleged abuses by Border Guard Forces (BGF) connected to land confiscation in BGF-controlled areas, make public the findings of the investigation, and ensure the return of land taken improperly by members of the BGF to the villagers and farmers who had previously been using it.

Methodology

From January to August 2015, Human Rights Watch conducted interviews in Burma with ethnic Karen farmers, laborers, and other villagers from 27 different villages in Hpa-an township and Hlaingbwe township, Karen State. Some villages were visited multiple times. In April 2015, Human Rights Watch also interviewed Karen migrant workers in Mae Sot and Bangkok, Thailand.

Altogether, Human Rights Watch interviewed 72 farmers and laborers, 48 men and 24 women. Interviews were conducted in Po Karen, Sgaw Karen, and Burmese with the help of interpreters, and in English. Local groups working on land rights helped identify individuals to interview. Human Rights Watch also conducted interviews with people displaced during fighting in October 2014. Migrant workers in Thailand were referred to Human Rights Watch by family members in Burma.

All participants were informed of the purpose of the interview, its voluntary nature, and the ways in which the data would be collected and used. All orally consented to be interviewed. The names and other identifying details of some interviewees and villages have been withheld or changed to prevent possible reprisals.

Most interviews were conducted in villagers’ homes with between one to four people interviewed. Often the interviews included other members of the village, some of whom participated in the interviews.

A number of villagers expressed concerns about security and possible retaliation if they spoke with Human Rights Watch in their villages. In such instances, Human Rights Watch reimbursed villagers for travel expenses to meet in a secure location.

Human Rights Watch also interviewed and obtained information from land experts, former government officials, nongovernmental organization workers, and local community members.

Human Rights Watch sought information from the national government and the Karen State government relating to land confiscation in Karen State and in Burma more generally. A Human Rights Watch representative met with the vice chair of the Hpa-an Special Industrial Zone in August 2015 in Hpa-an, and officials from the national Ministry of Agriculture and Irrigation in Burma’s capital, Naypyidaw, in February 2016.

In October 2015, Human Rights Watch received a letter from the office of the chief minister of Karen State in response to our letter seeking information on alleged human rights abuses related to land confiscation.

Throughout the research, Human Rights Watch collected copies of land use certificates, tax receipts, letters to government officials and responses received, land registers prepared by villages, and site maps. We visited almost all of the sites of land confiscation discussed in this report.

Because of government-imposed travel restrictions and security concerns at the time of the research, Human Rights Watch was unable to conduct interviews in areas under the control of the Karen National Union (KNU), the main ethnic Karen political organization, whose armed wing, the Karen National Liberation Army (KNLA), has waged a war against central government control since 1948. As a result, this report does not document abuses that may be occurring in KNU-controlled areas.

Glossary

Terminology

In this report Human Rights Watch uses the terms “Burma” in reference to the country and “Burmese” for the population generally, regardless of specific ethnicity. “Karen” is used in reference to the state and its predominant ethnic group. The Burmese government refers to the country as “Myanmar” and the state and ethnic group as “Kayin,” reflecting changes to the English translations of names made by the military State Law and Order Restoration Council (SLORC) after it seized power in 1989. All of these terms are still commonly used inside Burma. The 2008 constitution also changed the administrative areas called “Divisions” to “Regions,” so for example Pegu Division became Pegu Region after March 2011 when the constitution came into force.

In this report, Human Rights Watch uses the term “land confiscation” to describe instances in which the government, military, or private individuals claiming ownership appropriate via legal or extralegal means land that is already occupied or used by another. In most cases addressed in this report, the “legal” means by which government and businesses have acquired land fail to meet domestic procedural requirements and international legal standards, notably notice and compensation requirements.

Article 37 of Burma’s constitution establishes the state as the ultimate owner of all land in the country, while also recognizing the right to private property. Given this legal framework, Human Rights Watch uses the term “land use rights” to refer to the rights of farmers to work farmland. The term “claim to land” is used for individuals who may qualify for land use rights, particularly through inheritance or under a customary system, but have not yet registered land with the government. In Karen communities visited by Human Rights Watch, references to “ownership” were often made, as reflected in direct quotes of interviews.

I. Background

The population of Karen State has for decades suffered from armed conflict between the Burmese military and Karen armed groups, widespread human rights violations, and forced displacement and outflows of refugees. These have created a complex, competing, and overlapping governance system in the state that affects land ownership and use as well as access to justice.[3]

A nationwide census in Burma in 2014 recorded the population of Karen State as approximately 1,573,000. However, observers criticized the census for not including certain areas of Karen State, including conflict-affected areas covered by this report.[4] Most residents of Karen State are ethnic Karen, but there are also ethnic Mon, Shan, Pa-o, and Burman populations.[5] Most people earn their living in agriculture or animal husbandry.

Since Burma attained independence in 1948, ethnic armed groups, including those in Karen State, have operated in many areas along Burma's borders. After Karen nationalist hopes for independence at the end of British rule were left unrealized, the Karen National Union (KNU) and its armed wing, the Karen National Liberation Army (KNLA), advanced the nationalist cause both politically and militarily.^[6]

Successive Burmese civilian and military governments have sought to suppress the Karen nationalist movement. The Burmese military’s counterinsurgency strategy—known as the “Four Cuts” strategy aimed to cut insurgents off from food, supplies, intelligence, and recruits—resulted in widespread and systematic human rights violations and displacement. Several major waves of refugees fled over the border into Thailand to seek protection in the 1980s and 1990s. The military committed with impunity countless acts of extrajudicial killings, rape, torture, child soldier use, and abusive forced labor, as documented by Human Rights Watch and others.^[7]

Internal divisions in Karen political and insurgent organizations have created difficulties in articulating or achieving a unified political position on behalf of the Karen. The KNU suffered a serious split in the mid-1990s, when the Democratic Karen Buddhist Army broke away in 1994.[8] Additional fractures occurred with the formation of the Karen Peace Force in 1997, and the KNU/KNLA Peace Council (KPC) in 2007. Various smaller “peace groups” run by retired military or non-state armed group officers also operate throughout Karen State.

In 2010, a large section of the Democratic Karen Buddhist Army broke away and renamed itself the Democratic Karen Benevolent Army (DKBA), while other units transitioned to become various units of the Border Guard Force (BGF). BGFs are militia units that the government created after the adoption of the 2008 constitution to assimilate ethnic armed groups into the national army.

Conflict After the 2010 Elections

Karen State today remains a zone of intermittent armed conflict, though fighting has decreased dramatically since the signing of an initial peace agreement in 2012 and a nationwide ceasefire agreement in October 2015.[9]

In September 2014, fighting broke out between the Burmese army and the DKBA, causing thousands of villagers to flee their homes.^[10] In early 2015, skirmishes continued between the DKBA and the army in Hpapun and Kawkareik.^[11] Starting in July 2015, clashes occurred along the Asia Highway between Myawaddy and Kawkareik.[12] In February 2016, a BGF unit was attacked by remote-controlled landmines and gunfire along the same road.[13] Landmines generally remain a major problem, and reports indicate that fighters continue to plant new mines in the region.^[14] In September 2016, clashes between DKBA units and BGF battalions #1011 and #1012 broke out in Hlaingbwe township, displacing nearly 4,000 civilians.[15]

In a July 2016 survey, The Border Consortium (TBC), an umbrella group of nongovernmental organizations, counted the number of refugees living in camps along the Thai-Burma border at 104,149, of whom about 79 percent are Karen.^[16] A large number of internally displaced persons (IDPs) still living in Karen State face challenges in obtaining basic services including health care and education due a lack of humanitarian access. A 2014 TBC survey found there were approximately 400,000 IDPs in southeast Burma who are displaced due to armed conflict, generalized violence, large-scale development projects, or natural disasters.^[17]

Many Karen have also migrated to Thailand for economic reasons. According to the International Organization for Migration (IOM), in 2015 the total number of Burmese migrants in Thailand was just under 2 million.[18] Human Rights Watch found that migrants face harsh and often abusive conditions upon reaching Thailand, including killings, torture, sexual violence, and extortion.^[19]

Karen State Governance

Karen State governance is divided among government-controlled (as designated by the government) “white” areas, non-state armed group-controlled “black” areas, and mixed-controlled or contested “brown” areas.

The chief minister runs the state government, with various other state ministers covering portfolios such as transport, security and border affairs, forestry and mining, and social development, among others.

The KNU divides Kawthoolei (its name for the free state of Karen) into nominally civilian-administered districts that are each correlated with an armed group military brigade.[20] The KNU has its own governance systems delivering health care, education, and land and forestry regulation.^[21] After the signing of an initial ceasefire agreement with the government in 2012, the KNU also opened offices to help liaise with the government.

Areas near Hpa-an, the state capital, are heavily government-controlled, while the KNU exercises greater control in border zones close to Thailand. In some areas, villagers continue to pay taxes to both the government and armed groups. Furthermore, in contested areas, business projects may require permission from both the government and the KNU, or from any combination of armed groups. Powerful business interests and companies, many of whom are former members of the military or ethnic armed groups, play a dominant role in local life.

Business Development Plans

Political reforms in Burma have promoted new laws and international agreements to enable investment, sparking plans for infrastructure development and special economic zones. Foreign investment in Burma reached US$8 billion in 2014-2015, double that of the previous year.^[22]

At the national level, the government has accelerated plans to encourage foreign investment. In December 2015, parliament passed a new investment law, developed with the assistance of the International Finance Corporation (IFC).[23]

The new law consolidates the Foreign Investment Law of 2012 and the Myanmar Citizens Investment Law.[24] In addition to guarantees of regulatory stability for investors, it protects the government’s “right to regulate” in favor of human rights, including health and the environment.^[25] In a reversal of prior drafts, the final version of the law removed a contentious investor-state dispute mechanism clause opposed by many civil society groups.[26]

Karen State is considered an attractive area for investment because of its abundant natural resources and strategic location on the Thai border. Construction of the Asia Highway, which the Asian Development Bank (ADB) asserts will “dramatically improve connectivity within Kayin [Karen] State, between the state and the economic hub of Yangon [Rangoon], and regionally between Myanmar and Thailand, and onwards across the GMS [Greater Mekong Sub-region],” is already underway.[27] A portion of the road, which links the border town of Myawaddy to Kawkareik, was financed by Thailand and is already complete. The second portion, financed by the ADB as part of its GMS East-West Economic Corridor project, will connect Kawkareik to Eindu, a small town close to Hpa-an.[28]

Hydropower is also being developed in the area, with seven dam sites planned along the Salween River, including the Hatgyi, Weigyi, and Dagwin dam sites in Hpapun district, Karen State, all backed by the Electricity Generating Authority of Thailand (EGAT).

In 2005, the Burmese government signed a Memorandum of Understanding to develop the Hatgyi dam site with EGAT, and pledged 60 percent of electricity flow to China, 30 percent to Thailand, and 10 percent to Burma.^[29] The dam has been controversial, with protesters raising environmental, economic, and social concerns, and blaming the project for an increased Burmese military presence in the area.^[30]

In 2011, the Karen State government opened the 1,000-acre Hpa-An Industrial Zone, where three factories were operating at time of writing.^[31] Land around the industrial zone has reportedly tripled in value since its opening.^[32]

Cement production is another source of investment, with a French-led factory near Hpa-an constructed in 1986, and two military-backed plants that caused relocation of at least five villages around 2000.[33] Four large-scale mining licenses for limestone extraction and at least 10 exploration permits have also been granted in Karen State.[34] In 2014, villagers in Mi Kayin village resisted development of a Chinese-led cement factory near the banks of the Salween River. At time of writing, the KNU’s refusal to grant permission has halted the project, though it still retains official government permission.[35]

Tourism has greatly increased in Burma since 2011, with the country on track to draw 7.5 million tourists in 2016.[36] Though most tourism to date is concentrated in Rangoon, Bagan, Inle, and Kyaiktiyo, the opening of four new crossings on the Thai border adds the potential for expansion of tourism in Karen State.[37]

Japan is a major supporter of investment in the area. The Japan International Cooperation Agency (JICA) is considering development in the Hpa-an to Myawaddy corridor, with plans for additional special economic zones that would utilize labor from displaced ethnic minority communities, including refugees living in camps across the border in Thailand.^[38] In response, the Karen Peace Support Network, a network of Karen civil society organizations, has expressed concern over potential exploitation of low-wage workers and natural resources, and encouraged the Japanese government to consult with local communities on the planned projects and to protect vulnerable populations.^[39]

II. Barriers to Realization of Land Rights

The following section presents a range of challenges faced by communities in Karen State, particularly farmers and other villagers in the Hpa-an area, as they try to maintain use of land they depend on for their livelihoods.

Intimidation by the Border Guard Force and Other Armed Groups

Human Rights Watch received several complaints of land confiscation that involved armed units operating in Karen State.[40] These cases ranged from alleged land grants by the government to more straightforward forced expropriations of land by Border Guard Force (BGF) commanders and various militias.

The BGFs often used intimidation to silence villagers’ objections—including firing assault rifles, bringing in armed soldiers to guard disputed land, and threatening villagers.[41]

Human Rights Watch witnessed firsthand BGF threats to detain villagers in relation to land confiscation in Hlaingbwe township. Villagers in Htantabin village in Hlaingbwe told Human Rights Watch of land appropriation by the BGF, which had built a compound near their farmland in 2012. U Be Be, who lives in the village, said when the BGF arrived in the area, they laid claim to the 20-acre plot used for sugarcane and vegetables that he said had been in his family for four generations, planning to divide the land into blocks and sell it for houses. BGF commanders resisted repeated requests by some villagers to show them their legal documents providing evidence of their right to the land, and insisted the land was in a military zone. U Be Be, like many of the villagers, said his family lacked documents for the land: “In 2013, we planted some rubber on that land. A year later, the BGF came to us and said that they would build a road on the land and they were going to divide the land into blocks 80 feet by 60 feet and sell it for houses.”^[42]

In April 2015, a few weeks after villagers held a meeting about land confiscation in the area, a BGF commander arrived with two trucks filled with armed soldiers in an attempt to intimidate villagers from speaking out further. The dispute followed a series of efforts by a local family to get back land they claimed as their own from the BGF commander.

After a direct conversation with the BGF commander, who would not return the land to the family, the family matriarch sent a letter directly to the commander’s superior officer.^[43]

While Human Rights Watch was visiting the village, the BGF commander arrived with armed troops and confronted the woman. “Why would you do this?” he shouted. “If you do this to me, I can arrest you.” The commander called to the soldiers outside, and six rushed into the house with ropes, threatening to tie up family members and take them to BGF headquarters. After protracted discussions, the BGF commander eventually withdrew with his troops from the village.

The villagers remained terrified of the BGF unit and told Human Rights Watch they felt it was hopeless to seek redress through direct contact with the BGF unit or higher levels within the BGF. They said that they were too fearful to initiate legal action against the BGF unit.^[44]

In some reported cases, BGF units have acted on their threats to carry out arrests, including without apparent legal basis. In May 2015, in a different village in Hlaingbwe township, a BGF unit held a man, Yar Kut, in Mae Thein jail for four days regarding a land dispute in which the BGF claimed rights to land which the man’s family asserted they had been working for generations.[45]“They didn’t charge me, they didn’t tell me any number [of the penal code] that I broke in the law,” Yar Kut said. “They just said it’s because of the land.” He was he was held in jail for four days without charge, and only released from jail after his parents paid 50,000 kyat (US$41).

In some cases, armed groups stood guard over land for businesses seeking to develop the site.[46] In Mine Kan, villagers said BGF soldiers came to protect land claimed by the Kyaw Hlwan Moe Company for a 450-acre agricultural project on land claimed by villagers, who were actively protesting the project. According to villager Kaw Doe: “The company came to destroy the land [in early 2015] with big machines. Most of the land is destroyed now. They planted some teak and other trees just to show that they own the land.”[47]

Villagers said that armed soldiers from the BGF, led by Gen. Thein Zaw Min, had since come to guard the land. One local resident said: “The villagers don’t dare to go to that area anymore. The villagers are afraid because when the BGF came, they shot a lot, almost every day when they first came.”[48]

Daw Mu Pulu of Ateyebu village told Human Rights Watch that in 2006, Bo Sar Yay—who was in charge of a group of 10 DKBA fighters—seized the 20 acres of land she and her sister had inherited from her mother: “He started to plant teak and rubber on our land. He didn’t tell us anything. We wanted to complain but we were too afraid to say anything.”[49]

U Di Yay, a farmer in the village, said: “We are afraid of [the BGF]. They have guns. Even if we are angry we can’t argue very strongly because they have guns.”[50]

Smaller militias or “peace groups” have also been involved in land confiscation.[51] In February 2015, Human Rights Watch interviewed a group of villagers in San Klo, near Eindu.[52] The villagers complained that in 2013, Padoh Aung Sang, a member of the KNU who had left to form his own “peace group” in the late 1990s, had started to plant rubber on land owned and used by villagers for generations.

The villagers said they feared retaliation if they contested his seizure of their land. They stated that Padoh Aung San leads a local militia, the “Pyago Peace Group,” that consists of about 15 to 20 armed men living within 20 minutes of the village.[53] As Nu Yee explained:

Padoh Aung San and his armed group stay 10 minutes from here. When they came to plant the rubber, we didn't say anything to him because we were afraid of him. They have guns; they came with their guns when they checked the soil for planting.[54]

Even when less explicit threats are used, some villagers remain fearful because of the shadow of past abuses by BGFs and other armed groups in Karen State. The threat of violence by BGFs and other armed groups remains a reality in Karen State, which may explain why many farmers are reluctant to protest against the taking of their land when armed groups are involved.

In January 2015, Human Rights Watch interviewed seven villagers from Myaingyinu who were displaced due to fighting between the BGF and the DKBA in October 2014. One villager said: “The BGF shot at my house. I ran away to another village and stayed with my niece.… Sometimes I cannot sleep the whole night.… One of the BGF soldiers has beaten my son three times.”[55]

Villagers also said that BGFs continue to use forced labor:

The BGF told us we had to help them build a BGF camp. We worked for about a week, collecting bamboo. They didn’t pay us anything. The BGF soldiers speak rudely to the villagers, and threaten to kill them if they don’t do what they say.[56]

BGF leaders in one case refused to respect villagers’ requests that BGF personnel be stationed away from the children at the village school.^[57]

Similar findings were reported by Karen Rivers Watch after interviewing displaced villagers.^[58] Many BGF soldiers were also reportedly belligerent in areas they controlled. As one villager told Human Rights Watch, “When they are drunk, they shoot around and can hit the homes.”^[59]

Forced Eviction and Destruction of Property

Villagers said police have destroyed houses and other property in response to protests or other efforts to prevent the seizure of land which villagers had long used.

New Ahtet Kawyin

In June 2015, police officers torched more than 100 houses in New Ahtet Kawyin village, west of Hpa-an, after evicting over 200 people. The eviction followed villagers’ attempts to reclaim land they said had long belonged to their village. Several elderly villagers told Human Rights Watch that local people had previously farmed the disputed area of land. One elder, Mu Htaw, said:

Before the government seized our land, we did taungya farming [shifting cultivation] in that area. We grew vegetables and collected bamboo shoots from the forest. We used leaves to shelter our houses from the rain.^[60]

Villagers said that after they refused police demands in March 2015 to remove huts from the disputed land, they joined villagers from Kaw Sa Ka Lo village in a peaceful protest in Hpa-an on March 21, 2015, where police arrested 13 people under section 18 of the Peaceful Assembly and Peaceful Procession Law.

In June 2015, police began making arrests under the Forest Law. Twenty-seven men charged under articles 40 and 43 were later convicted, and served between two to six months in prison. Article 40 prohibits trespassing in a reserved forest, with a penalty of up to six months in prison and a fine of 5,000 kyat (US$4). Article 43 prohibits cutting teak trees in government forests, with a penalty of up to seven years in prison and a fine of 50,000 kyat (US$40). Villagers dispute that there were any teak trees on the land that they occupied.[61]

Villagers said that they had not seen any documents specifically naming individuals for arrest.[62] According to Daw Hla Nyut, 21, who was in the village: “The police came on June 2, 4, and 9, and they came to arrest people. If they saw any men [there], they would arrest them.”[63]

On June 15, Hpa-an police held a meeting in the village, informing villagers that they had one week to leave their homes. They also posted signs on fences notifying villagers that any houses not vacated by June 22 would be burned down. Most villagers decided to remain on the land. According to Daw Hla Nyut, “Many people had no place to go, and so they had to stay in the village.”[64]A week after the meeting, police officers came and destroyed the village. Tin Shwe, another villager, said:

On June 22, the police came. There were 20 cars and over 40 police and they hired some villagers from a different village to come with them. The police were wearing dark blue shirts. The police cut down all of the houses with chainsaws and they burned the bamboo houses.[65]

The house of 27-year-old Mu Kalote’s mother was among those destroyed, even though family members said they had no idea that the home was part of the disputed area and no signs had been posted indicating that they had to leave. According to Mu Kalote: “Two days after the police burned the village in New Ahtet Kawyin, they came to my mother’s house and destroyed it. We didn’t expect this. We had lived there for 16 years.”[66]

In February 2016, the Myanmar National Human Rights Commission concluded, in the event of an eviction of “squatters”:

Measures should be taken, based on humanitarian principles, such as, treating them humanely, giving educative talk prior to eviction, giving prior notices, making arrangements for transportation, providing assistance in health, education and social welfare needs and resettlement following the eviction.^[67]

Obstacles in the Justice System

Several villagers said they faced arrest when peacefully attempting to defend their continued use of land they had been living on.

“In the past, even if you didn’t have documents for your land, nobody would arrest you,” one villager said.[68]

Human Rights Watch received several reports of charges against farmers whose land had been confiscated under section 447 of the penal code for “trespass” or “squatting.”^[69] Charges were also brought for trespass under article 40 of the Forest Law against individuals foraging for food and materials in areas traditionally used by Karen as communal forests.[70] Since trespass is a criminal charge, those convicted face fines and prison.

Ka Sa Ka Lo

In Ka Sa Ka Lo village, police arrested a group of villagers who in March 2015 had built structures on land they said had been in their possession since their grandparents’ time, although they lacked documents to prove it. Six were charged with trespass under section 447 of the penal code. One of the villagers present said:

The [police] asked us questions about our land ownership. At the [police] station we were charged with [article] 447. Each person needed two guarantors to be released. It is 1 million kyat [US$800] guarantee.[71]

“This land is old land, owned by our grandparents,” Shue Kalay, a woman from the village, said.^[72] A group of Kaw Sa Ka Lo villagers walked the land with Human Rights Watch, pointing out old trees planted by their grandparents and a stone post that marks the site of the village, and telling local folklore about a tiger living in the mountain at the base of the town. When Human Rights Watch visited the village again in August 2015, the farmers had managed to maintain their huts on the land.

Trespass cases often arise when villagers oppose claims by businessmen who receive government permission to take land. When farmers dispute such claims by attempting to return to the land as a form of protest, businesses file a complaint and police initiate trespassing charges against the farmers. “The businessman takes the land from the farmer,” said one lawyer. “But when the farmer protests, he becomes the criminal.”[73]

In these cases, farmers usually had little more than tax receipts from the government to argue for their claims to the land, which under Burmese law do not count as evidence of “ownership” against which a trespass charge may be defended.

Villagers often do not have the resources to defend themselves in court against criminal charges. As one villager whose land was confiscated for a hotel project said, “The hotel said, ‘If you don’t like it you can go to court against us.’ I want to go to court, [but] if you don’t hire a lawyer it doesn’t work. But I don’t have any money to pay a lawyer.”^[74]

Farmers pointed out that the trials can become onerous, especially when government officials fail to appear, and complained that it is time consuming and expensive for them to travel to get to courtrooms—adding to the costs of defending themselves.^[75]

Moung Pi, a villager from a town just outside of Hpa-an, was charged in 2013 with trespass after building a fence on land he claimed as his own. He said the cost of defending the suit was overwhelming: “I’ve nearly bankrupted myself trying to defend against the trespass suit. I had to sell another piece of land just to pay for the lawyer.”^[76]

After being convicted of trespass, Moung Pi spent two months in prison with hard labor, working in an agriculture field: “I worked in the heat as a farmer. If you wanted a rest, you had to pay a 50,000 kyat [US$45] bribe.”^[77]

Tokawklay

In Tokawklay village, land just outside the Hpa-an Special Industrial Zone is now the subject of a trespassing case instigated by U Khin Kyu, an influential local businessman who was an army general and government official in Karen State during the State Peace and Development Council (SPDC) military government. Villagers interviewed by Human Rights Watch indicated that they had claims to the land—showing tax receipts dating back to as early as 2004.[78] However, the value of the land near the zone has reportedly tripled since its opening.^[79]

Villagers told Human Rights Watch they had put up a fence to demarcate the boundaries of their land in May 2014. Hpa-an police officers then came to the village and ordered the farmers to remove the fence. In July, after the farmers did not comply with the order, police filed trespass charges against seven villagers under section 447 of the Penal Code.

In June 2015, the Hpa-an court convicted six of the villagers—U Ne Win, U Myint I, Maung Kyaw Klone, U Ti Lone, U Tin Win, and U Shwe La Nge—and ordered them to each pay a 500 kyat (US$0.40) fine. While the final fine was nominal, the villagers said that at many of the 21 court hearings they were compelled to attend, government officials failed to turn up, delaying the trial and adding to the cost of defending the suit. Villagers added that it was difficult to travel to court, and each time their effort to go to court prevented them from working the entire day. The six convicted farmers estimated that they each spent 440,000 kyat (US$360) defending themselves against the charges.[80]

Farmers find it difficult to obtain lawyers who will represent them against powerful figures in the community. Lawyers in Hpa-an and Rangoon said that few lawyers in Hpa-an were willing to take on land cases.[81] To defend high-profile cases in Karen State involving political activists, legal aid lawyers had to be brought in from other parts of the country.

At time of writing, there is no institutionalized legal aid infrastructure to assist farmers with their land issues.^[82] While nongovernmental legal aid services have cropped up throughout the country, few such activities are currently being undertaken by civil society groups in Karen State.^[83]

Lack of Free Expression and Assembly

Many farmers said that positive initiatives by the newly elected government meant that, unlike in the past, they could now raise their voices against governmental abuses.[84]

However, as farmers gain confidence to speak out in public spheres, charges related to protests are becoming increasingly common. The authorities and local police frequently deny applications for demonstrations; those who protest without permission face arrest and charges under section 18 of the Peaceful Assembly and Peaceful Procession Law.[85]

According to one activist, some 40 to 50 people are currently detained in Hpa-an prison in relation to land issues.[86]

Nongovernmental organizations in Hpa-an repeatedly expressed frustration over the restrictive environment imposed by the local government. In October 2015, the Hpa-an township General Administration Department (GAD) issued an order prohibiting domestic and international nongovernmental organizations from holding meetings in hotels without first obtaining official permission from the township.[87]The letter stated no apparent rationale for the decision.

Since 2014, protesters said authorities were unresponsive to requests to hold demonstrations against land confiscation, and that several of those who decided to protest without official permission were arrested. For example, Saw Maung Gyi, leader of the 88 Karen Student Generation Organization, which was prominently involved in organizing protests in Karen State, reported that on August 16 and 18, 2014, organizers sought police permission to protest, but were ignored:

We officially requested permission to protest peacefully but [the police] didn't reply to us until the night before the protest would take place. If we have to do things according to the law, they are responsible to get back to us in 48 hours prior to a demonstration but police officer [name withheld] said that he failed to reply to us just because he was so busy that night. So we prepared everything necessary and went to protest anyway.[88]

Although they say the protest was peaceful, local police arrested 10 people—six farmers and four activists. The Hpa-an court sentenced four activists to four months in Hpa-an’s Taungalay prison. Farmers had to pay a fine but avoided any prison time. The activists allege they were kept in solitary confinement for 10 days in prison before they were allowed to interact with others.[89]

Similarly, in March 2015, a group of nearly 300 people organized by the 88 Karen Student Generation Organization to protest their problems securing land in Karen State decided to go ahead with their demonstration, despite lack of official permission. Although the protest was peaceful, police called a number of participants to the Hpa-an police station the next day for questioning and charged 13 people under section 18 of the Peaceful Assembly and Peaceful Procession Law.[90] The protesters secured bail after guarantors provided a financial guarantee of 2 million kyat (US$1,600) per person.^[91]

The activists also faced intimidation and threats of closer police surveillance. Saw Maung Gyi was charged on August 17, 2015, on trumped-up charges under section 17(1) of the Unlawful Associations Act and sentenced in November 2015 to two years’ imprisonment. He ended up spending four months in solitary confinement until he was released on parole through a pardon from then-President U Thein Sein on January 22, 2016.

After assuming office in April 2016, the NLD-led government of President U Htin Kyaw released scores of political prisoners, including prominent land rights activists and community leaders imprisoned for their activities connected to defending land and natural resources.

In May 2016, the Assistance Association for Political Prisoners (Burma) estimated that 86 people were in prison for politically related offenses and exercising their civil and political rights.[92] Observers noted that a significant number of these political prisoners were imprisoned for their work related to land issues.[93]

Lack of Notice, Consultation

Human Rights Watch found that in general the state and local governments, or companies involved, did not provide villagers with notice that would allow them to contest a proposed sale or confiscation, or even plan ahead for relocation.

Tin Shwe from New Ahtet Kawyin village, where police torched more than 100 houses in June 2015 after evicting 200 people, told Human Rights Watch: “We never had a chance to explain. The government just sent a letter to the village chief and then he had to stick it up on the fence.”^[94]

The provisions of the Vacant, Fallow and Virgin Lands Management Act (“Lands Management Act”) and the Farmland Law provide farmers the opportunity to contest land sales that affect their historical land use. The Farmland Law requires that a notice for objection be posted at the township department office as well as ward/village tract administration office pertaining to the land in question. The objection should be filed within 30 days after the notice was issued.[95]

Similarly, the Lands Management Act requires the Ministry of Agriculture and Irrigation (“Agriculture Ministry”) to notify the public by posting an objection form on the notice board of the “Naypyidaw Department Office or Regional or State Department Office, the District Department Office, the Township Department Office, and the Administrator’s Office of the ward or village tract where the vacant, fallow and virgin lands are located.” Individuals have 30 days from notification to object to the proposal.[96]During this period, the Agriculture Ministry must inquire into whether the allegedly vacant lands are truly vacant, and “whether there is a holder currently utilizing the land,” among other things.[97]

In practice, villagers interviewed by Human Rights Watch did not receive these notifications nor were such measures apparently applied. Consequently, many were not aware of impending projects until it was too late to formally object under the regulations.

Agriculture Ministry officials told Human Rights Watch that most land problems occur between investors and villagers or government and villagers. They conceded that notice was a fundamental issue with the land system, and while farmers have the right to object to land sales, most often they do not.[98]

In some instances we documented, villagers received no advance notification at all about a governmental project, only finding out about the project when their paddy fields were flooded or construction on a new project began.^[99]

In Naw Kyaw Myine village, more than 3,000 acres of land were flooded by the Ye Bo irrigation dam project initiated by the Agriculture Ministry in 2009. Despite villagers’ claims to the land, when the dam project planning started in 2006, the government did not inform most villagers of their impending land loss. Aung Thay, a local man who organized and collected documentation to oppose the dam, said:

The government called the district and village tract administrator and made a decision. There was no consultation with the villagers. The village administrator did not share information about the project. He only invited leaders from only three of the four affected villages to a meeting about the dam.

He added that villagers were dismayed over the loss of their ancestral lands: “It feels like we lost our parents.”^[100]

In late 2014, the Agriculture Ministry built a new channel for the dam, affecting another 10 acres and displacing two more families. Again, families reported that they received no notice of the impending flood or compensation.

In addition, most farmers received no advance notice when the land they were using was sold to private parties, in many cases only learning of the sale after its execution. Mit Tarlar, a villager from a town outside of Hpa-an, told Human Rights Watch that the government developed the land without consultation with local people, who were not given a chance to raise their objections.^[101]

Another villager, Hla Khin, said he was not even notified of the government meeting with the affected community: “They didn’t invite us to the meeting because we do not own large parcels of land. They only invited landowners with over five acres of land.”^[102] Hla Khin owned less than one acre of land. He said that he had had plans to use the land to build a house for himself and his wife.

In a few cases, government officials visited the village or issued a written notice that farmland would be repurposed but then failed to provide information about the scope of the project, or its impact on farmland. One villager said of the Hpa-an Special Industrial Zone: “The big problem is that we do not know the size of the industrial zone. We do not know whether it will reach our land or not, and we don’t know whether we can register land that is not yet registered.”[103]

In other cases, consultation was offered but did not provide villagers with a meaningful opportunity to give views and inputs into plans for the zone.

With respect to the Hpa-an Special Industrial Zone, of which foundations were laid in December 2011, the government’s consultations about land with villagers were cursory and incomprehensible to many attendees. According to farmer U Ne Win, in May 2014, Special Industrial Zone authorities invited villagers from affected communities to a meeting regarding the industrial zone; however, it was conducted in Burmese, which most Karen villagers do not understand.^[104]

This lack of adequate notice by government officials puts people who would contest a sale or development of land at a severe disadvantage. Discussions with local lawyers in Hpa-an indicated that any legal appeal of a land transfer will likely be rejected if the buyer already has received the proper forms from the government.[105]

Further, as described below, the grievance mechanisms put in place by the Farmland Law fail to provide an adequate substitute for a court of law in deciding such issues. As a result, failure to properly notify individuals of proposed land projects often results in a nearly uncontestable legal transfer of land without input from those utilizing the land.

Difficulties Demonstrating Land Claims

Prior to the 2012 land reforms, tax receipts were the only form of documentation available to farmers. Among farmers who spoke to Human Rights Watch, they were the form of documentation most commonly held.

However, while tax receipts document land use they are not a legal document that can be used to certify land ownership. As such, they do not protect against government confiscation and government officials have been unwilling to consider these when making land grants.

Human Rights Watch found numerous cases of farmers who had worked land for years and had recorded their land and paid tax to the government, but then lost the land to the government, or businessmen or non-state armed groups who had obtained more recent government certification of ownership of the land.[106]

For example, U Muu Tay from Ta Nyin Kone village said local residents had been working the land since 1985 and had registered the land with the government in 1999. From 2000 to 2006, the villagers regularly paid tax on the land, and received receipts for those payments.^[107] In 2006, he said, the DKBA came:

When they first arrived, they told us that we owned the land. But later they took 500 acres [of the land tax had been paid on] for their own plantation. They never offered us any money for the land. Since the DKBA took the land, we haven’t received any tax payment requests [for that land] from the government.[108]

Despite recent legal reforms related to land rights, there has not been significantly improved land tenure for farmers whose claims were not already registered at government offices. Only since 2012 have farmers been able to access Land Use Certificates (LUCs), which contain the right to sell, exchange, and lease land in a manner comparable to a system of private property rights.

Most of the villagers interviewed by Human Rights Watch had not received LUCs for their land, which are supposed to be given to all individuals with farmland currently on record with the Agriculture Ministry.[109] Those interviewed said that apparently as a result of the poor registration and documentation system, there were frequent mismatches between the land use maps in possession of the land office and actual land use in communities.[110]

For example, some farmers affected by the newly opened Hpa-an Special Industrial Zone showed Human Rights Watch tax bills paid to the government for use of their land and maps from local government land administration offices marking use rights to the land that they allege the government has now taken for the zone.^[111] The dates of the documents varied, with some having been issued as far back as 2004.

Villagers stated that the government had not recognized their claims to the land nor given them any compensation. One aggrieved villager said, “They [government officials] look at the maps in the land office but they don’t compare them to the real use [of the land],” pointing out that the current land office maps do not reflect the community’s historical use of the land.^[112]

Even where farmers possessed some form of documentation for their land, Human Rights Watch found that it often provided little protection against confiscation.^[113]

U Lwan Kyaw, 72, one of several villagers who said their land was taken for the construction of the Zwebakin Hotel on the outskirts of Hpa-an, said that efforts to prove his ownership with records were dismissed: “We sent a letter to Shwe Mann [then speaker of the national parliament] but didn’t get any response. Before the hotel came, the land office said, ‘The government has taken the land, you cannot have it.’”^[114]

Villagers presented Human Rights Watch with documents that showed they had paid taxes for the right to use the land, as well as maps provided by the local land office indicating that their names were on record at the local government offices as the farmers utilizing the land.^[115] U Lwan Kyaw said that in 2013, he and his wife approached the local land administration office for assistance, but officers there told them they could do nothing to help. Later, the General Administration Department under the Ministry of Home Affairs told villagers they should go to court if they were unhappy with the decision.

Burma’s land registration system primarily focuses on farmland that has already been recorded.[116] As a result, LUCs have been issued only to those whose rights to land are already on record. Farmers that are actively using land but whose rights have never been recorded have still not benefited from the new registration systems. The registration maps on record are notoriously outdated, in some cases with maps dating back to the early 1960s.[117]

Further, the government’s land registration system appears ill-equipped to address the problems faced by people living in rural, ethnic, or conflict-affected areas, where farmers find it difficult to access government services and thus obtain registration.[118]

Registration in conflict-affected areas is particularly low. According to one study, fewer than a quarter of farmers in these areas have land documentation.[119] Humanitarian access is coordinated through the state chief minister’s office but is not comprehensive, leaving many internally displaced persons without access to personal identification documents, which are necessary to show to government officials when seeking land registration.[120]

Many of these farmers in conflict-affected areas possessed no government-registered land documents whatsoever; neither tax documents nor LUCs.[121] In these communities that Human Rights Watch visited, land ownership was recognized through community practices based on physical boundaries and historical land use, resulting in arrangements in which all the villagers knew who possessed which piece of land.^[122] During times of conflict, when villagers either abandoned land or were prevented from accessing government services to pay land use taxes, the community land practices were simply not recorded or maintained.

In addition, LUCs cover only farmland, whereas many earn livelihoods in Karen State from land other than farmland.[123] One common example is land used in a shifting cultivation system. In some cases, land that is classified as vacant, fallow, and virgin by the government may actually be land that is part of the local community’s taungya (shifting cultivation) practice in which crops are rotated and sections of land are left vacant for periods for the soil to recover.[124]

There is currently no form of land title available to protect this type of use, meaning that farmers must attempt to request that the government transfer classification of such land to farmland before the use rights can be documented.[125] In the meantime, the government may determine that land is vacant, fallow, or virgin, and grant land use rights to others without protecting the rights of villagers who have traditionally used the land. As noted above, while individuals under the law have the right to contest such grants, they are rarely informed in a timely manner so as to do so.

Human Rights Watch also encountered some villagers with land registration documents issued by the insurgent Karen National Union. At times, land recognition by the government and the KNU came into conflict.^[126] In some conflict-affected areas, villagers perceived the possession of KNU land registration documents as putting them at grave risk. One villager from Hlaingbwe township, an area now controlled by the Border Guard Force, explained that she had at one point received registration documents from the KNU, which evidenced her family’s ancestral possession of the land: “In the past, we had documents from the KNU. But if the military sees KNU documents they will kill you, so we threw them away.”^[127]

Problems with Local Land Administration Offices

Farmers reported problems dealing with government offices in charge of administrating the land system, particularly when they were seeking to register land.

Academic research has found that Settlement and Land Records Department (SLRD) offices are severely understaffed and do not have adequate capacity to perform their legal and regulatory functions.[128] Interviewees also indicated that offices made little effort to respond or fulfill requests put forth by farmers, and many villagers told Human Rights Watch that they perceived the offices as focused solely on furthering the interests of businesses or wealthy individuals.

In Karen State, several factors make it difficult for farmers to access the SLRD. Many farmers do not speak Burmese and are illiterate; the government has not undertaken serious efforts to ensure that its land offices in Karen State have officers who can speak Karen.[129]

Illiteracy and an inability to speak Burmese means that language is a major barrier for villagers seeking to access government services. “It is not easy for me to communicate with government officials,” said one villager. “I don’t speak Burmese and they do not speak Karen.”[130]This language barrier has led farmers to sign documents that they did not fully understand.[131]

Farmers stated other practical factors, such as poor road conditions and lack of public transport, that made it difficult, time consuming, and expensive for them to travel from remote rural areas to the records departments, which are based in cities.[132]

Villagers also alleged that in many cases, SLRD officers failed to perform their duties or demanded bribes to do so. Several villagers stated that the SLRD did not respond to their inquiries, claiming that officials were out to lunch, that the weather was “too hot” to travel to their village to measure the land, or other apparent excuses.^[133] In one village, farmers reported having to bribe officials with 400,000 kyat (US$325) simply to get them to visit their land.

In some instances where village leader permission was sought, farmers complained that they were unresponsive, refused to perform their duties, or were corrupt.^[134] In one village, the local village leader is said to have told villagers that he expected to receive new motorbikes in exchange for his acquiescence.^[135] Other farmers also stated they believed village leaders took pay-offs from people and groups trying to get ownership of land.^[136]

Nonexistent or Inadequate Compensation

In most of the cases that Human Rights Watch documented, people who had had their land seized received no compensation. This was true even where villagers could produce some form of documentation providing evidence of government-recognized land use rights.

Aung Thay from Naw Kyaw Myine village said the government provided no compensation and that most farmers in his area, including almost “80 percent of the village youth,” had to go to Thailand when it flooded their land for a dam project.

“Now I’m just planting rubber and other small plants,” another farmer from the village said. “I have six kids. Two are in Thailand and one is in Malaysia.”[141]

Villagers in Htantabin village, Hlaingbwe township, said they had tried speak to the Border Guard Force commander of the area, requesting compensation for their destroyed rubber trees: “We told him we wanted some compensation for the rubber [trees] that we had planted. He said to us, ‘Who told you to plant rubber on that land?’ He wouldn’t give us any money.”^[142]

Failure to compensate occurred even in a number of cases involving official taking of land by the government for a public purpose under the 1894 Land Acquisition Act, which requires the government to provide compensation.[143]

In cases where villagers were compensated, many said it fell far short of what they were owed or what allowed them to earn a sustainable living or even survive.

In June 2015, the BGF commander offered to give the villagers five blocks of the developed land, significantly less than the 20 acres they claimed. According to villager U Be Be:

Now the commander has offered to give us five blocks of the land, but it is not the same.… My grandmother on my father’s side is already old, she cannot work. If I can work that land I can give some money to my grandmother. If we lose that land, I will be very upset.^[144]

Villagers from New Ahtet Kawyin also said that the land which the Karen State government offered before they were evicted in 2015 was not sufficient for all of the families to move to. The government told villagers they would determine who could receive land plots through a so-called lucky draw.[145]One of the villagers explained that the plots on offer were too small to earn a sufficient livelihood:

The plot [offered by the government] is 40 by 90 feet. On land that size we can only build a home, we cannot make anything or do farming. We cannot even build an outhouse. Also, there are some farmers who have small plantations already on that land. How can we know that we are not taking their land?[146]

Moung Pi, from a village just outside of Hpa-an, said that despite possessing an executed land sale contract and land tax receipts, the government confiscated his land without compensation. He noted: “It is good land. You could not work in Thailand for 10 years and make enough money for this kind of land.”^[147]

Mit Tarlar from Ta May[148] said that the two parcels of land sized 60 by 160 feet that the government offered to compensate him for his 5-acre plot was woefully inadequate:

We cannot do farming on the land [given for compensation] because it is so small. You can only build a small house.… The economic situation is worse here since we lost the land. There aren’t a lot of jobs here. All of our sons and relatives had to go to work in Thailand.… I only have the house I am living in now because I went to Thailand to work.[149]

In the case of the newly opened Hpa-an Special Industrial Zone, villagers told Human Rights Watch that they were not offered any compensation for the land, though they reported that other people dispossessed of land within the zone did receive other land.[150]U Ne Win, whose eight acres was flooded by a dam built within the zone, told Human Rights Watch that he was still waiting for the government to fulfill its promise to give him land. In the meantime, his sons and daughters had moved to Thailand to find work to support the family.[151]

Government officials did not appear to apply consistent criteria for determining the amount of compensation. When determining compensation, officials did not take into account the livelihood impact of the land confiscations.

In Kaw Klone village, then-chief minister U Zaw Min promised the return of land confiscated for rubber plantations.^[152] However, when Human Rights Watch visited the village in March 2015, villagers indicated that only 186 acres out of a total of 700 acres had been returned.^[153] In another case, villagers were told that they would receive new land, only to discover that the new land in question was already claimed by other people.[154] As one farmer said, “The government offered us new land, but we cannot move there because our neighbors already own that land.”^[155]

Others have yet to receive the land promised, and have no information as to when or whether it may come. One villager dispossessed by the Hpa-an Special Industrial Zone said: “Two years ago the government built a small dam and it flooded our land.… The SLRD [Settlement and Land Records Department] has promised new land but we still haven’t received anything.”^[156]

In a few cases, businesses involved in land seizures offered token payments aimed at placating those whose land was confiscated. Villagers told Human Rights Watch that they refused to accept such payments, which they did not consider to be fair compensation for their land.In the case of the Zwekabin Hotel described above, villagers are still seeking compensation from the company. They said that they have received a 1 million kyat (US$800) “donation,” but not actual compensation for the land.^[157]

The instances in which villagers were successful in obtaining compensation often came through political, rather than legal, means.^[158]For example, in some cases villages banded together with the assistance of an influential Buddhist monk, the help of a local nongovernmental organization, or through a well-educated individual within the village, such as a school teacher or headmaster. The most successful strategies for obtaining compensation or the return of land appeared to be appealing directly in writing to the Karen State chief minister at the time, U Zaw Min, or then-President Thein Sein. In other cases, villagers sought assistance of non-state armed groups with political clout in the area to help negotiate an acceptable outcome.

In the rare instances when the government has admitted an error in seizing land, redress has been limited. Villagers in Kaw Klone said that the Karen State government had eventually acknowledged in a letter to the villagers that their land was improperly confiscated in 2008 by a wealthy businessman, Myit U, who had forced them to pay to keep the land and threatened violence against those who could not or would not pay. Despite this admission, they said, more than 1,000 acres of their land have yet to be returned, and some of the returned land is now in the hands of non-villagers. A Kuklo visitor said:

Chief Minister U Zaw Min now said that he has given back 700 acres of land, but in reality, they’ve given it to businessmen, cronies. We received a document that lists land return for 58 individuals. But some of the people on the list are not from this village. About 30 [people] from the village are missing from the list. Villagers from here got back only 186.31 acres.^[159]

Recognizing land to be one of the most pressing issues facing the country, the government in 2012 established a Land Acquisition Investigative Commission to deal with complaints of improper land confiscation, though the commission has no authority to actually resolve cases. In its first report issued in 2013, the commission concluded that most land acquisitions broke existing land laws.[160]

The commission noted that more than 117,000 acres were acquired for industrial zones, agriculture projects, or urban growth.[161] It found a lack of transparency between government, businesses, and individuals. It further found that, though required by law, most projects which were incomplete had not reverted back to the original landowners.[162]

If compensation was paid, it was most often well below market level.[163]

In April 2016, Burma’s parliament announced it would investigate 6,000 out of some 18,000 complaints in its next term.[164]

Loss of Livelihood, Migration to Thailand

Like much of Burma, Karen State remains a primarily agrarian society where individuals rely heavily on rice production for incomes.[165] Access to land is central to livelihoods, as there are few other methods to earn income. One farmer, who lost her land and did not know what other job she could do, said, “I know everything about rice farming, but I have no other education. I did not go to school.”[166]

A family’s loss of land typically results in significant loss of earnings, and the resulting harm to livelihoods and food security can place immense burdens on those for whom there is little or no economic cushion. Government policies that facilitate unlawful or uncompensated land seizures reflect a failure to take adequate steps to ensure everyone’s rights to an adequate standard of living, including food and shelter.[167]

Htee Htar from Ta Nyin Kone described the impact the loss of land has had on his village: “With no land, we cannot do farming and we cannot make a business. Since 2006 we have been working as day laborers in other fields.”^[168]

Daw Mu Pulu from Ateyebu said that after DKBA soldiers seized her 20 acres of land in 2006, she became a day laborer and others in her family were compelled to become migrant workers in Thailand. While they occasionally sent her money, the situation had deteriorated since they farmed their own land. She said: “Now we only make 3,000 kyat (US$2.40) per day and we have to buy rice. If we had our own paddy, we could grow our own rice.”^[169]

Despite the recent establishment of factories and agricultural plantations around Hpa-an, villagers claim that the factories and plantations have created few jobs for local people. They say that instead, the businesses are employing laborers from other parts of the country who may be in debt and thus accept very low wages.^[170] The vice chair of the Hpa-an Special Industrial Zone told Human Rights Watch that he estimated that only 30 percent of workers employed at the Hpa-an Special Industrial Zone are from Karen State.[171]

Families have also been fractured by land confiscations. Human Rights Watch found in the cases examined that land confiscation in Karen State almost always prompted migration for work to Thailand by at least one member of an affected family.^[172]

Kaw Sa Ka Lo villagers said that after their land was seized, “most of the young people went to Thailand.”^[173] One villager, whose brother is now in Thailand, told Human Rights Watch: “We just want our land back. We have large families but no land for our children. Our brothers and sisters are in Thailand now. They want to come back but there is no land to support them.”^[174]

An elderly woman said, “Now that I have no farm … my family in Bangkok sends me money to support me.”

Many individuals said that they would have preferred to keep their families intact and would not have migrated were it not for the confiscation: “After our land was ruined, about half of the young people left for Bangkok. Before the factory came, we were happy farming; we could create jobs for the youth.”^[175]

Those who lost land and wished to stay were sometimes able to rent farmland from neighbors, borrowing money from relatives living abroad.^[176] Other landless farmers who were determined to remain in their area turned to day labor if it was available: “We have nothing to do now. We are just looking for new land, and some of us do day labor. With day labor we earn 3,000 or 4,000 kyat (US$3-4) per day.”^[177]

Land confiscation has led to cross-border migration for some, but many have migrated to Thailand for economic reasons apart from land confiscation. Overall, migrants to Thailand often face poor working conditions and exploitation. “Our relatives want to come back,” said one villager. “The working conditions [in Thailand] are poor and the salary is low.”[178]

Lack of Redress

Villagers interviewed by Human Rights Watch repeatedly cited the lack of compensation or other forms of redress when their land had been seized. “It’s like hitting a cement wall,” one community leader said.^[179]

When a land dispute arises, the first avenue of recourse for villagers is with the Ward or Village Tract Farmland Administration Body. The committee consists of a chairperson from the General Administration Department, a secretary from the Settlement Land Records Department, and two farmer representatives. It is unclear what processes or criteria are used to select farmer representatives.

From this first level committee, contested decisions can be appealed to the township, district, and ultimately region/state level Farmland Management Bodies. Redress becomes more difficult when land disputes cannot be resolved at the ward or village tract level.

Farmers typically said their ward or village tract representative had been their initial point of contact in expressing a complaint over a land problem.

Local representatives frequently were unable to resolve the disputes. National-level Agriculture Ministry officials conceded that farmer representation at the district and region/state level was weak, and said this was because the farmer organizations were weak.[180] This suggests that farmers’ interests are likely to be less well-represented the higher their appeal goes.

While the land administration system allows for review of local level decisions, there is no mechanism to challenge or review decisions by an independent administrative or judicial body.^[181] Under the 2012 Farmland Law, decisions made by the Farmland Management Body regarding land classification and land ownership may not be appealed in a court of law.[182]

The Ta Nyin Kone case highlights the difficulties faced by villagers seeking redress for land confiscation.

Ta Nyin Kone

In the village of Ta Nyin Kone, locals started experiencing land problems after a DKBA unit arrived in their village in 2006. U Muu Tay, a local villager, said the villagers had been working the land since 1985 and had registered it with the government in 1999. From 2000 to 2006, the villagers regularly paid tax on the land, and received receipts for those tax payments.^[183] But in 2006:

The DKBA came. When they first arrived, they told us that we owned the land. But later, they took 500 acres [of the land we had been paying tax on] for their own plantation. They never offered us any money for the land. Since the DKBA took the land, we haven’t received any tax payment requests [for that land] from the government.^[184]

The villagers sought redress for their land taken, but because Border Guard Forces operating in their village were themselves involved in the land confiscation, they were afraid of retaliation if they raised the issue. U Muu Tay told Human Rights Watch that villagers wanted to protest in 2006 when the DKBA soldiers seized their land but had been too frightened to do so. “We wanted to complain but we didn’t dare,” he said.

Villagers from Ta Nyin Kone stated that they brought their case through the land dispute system but at every level the Farmland Management Body ruled against them.

Villagers said that BGF commander Bo Sar Yay was responsible for many problems in the village, and alleged that he had started using land that the villagers set aside to build a new Buddhist monastery. Several also alleged that Bo Sar Yay threatened them concerning their land. A villager said that when they raised their problems directly with him, “Bo Sar Yay said to us, ‘You should be careful because there are no police here and there is no lawyer.’”^[185]

Despite those warnings, in early 2015, the villagers attempted to initiate a lawsuit against Bo Sar Yay to get the land returned to them. However, the court dismissed their suit—accepting the government’s classification and registration of the land as belonging to Bo Sar Yay—on the grounds that under the Farmland Law the court had no jurisdiction to review the matter and reevaluate the decision of the land committee.

Agriculture Ministry officials confirmed that the mechanisms under law to address land disputes were not often helpful to farmers whose land was confiscated. However, they considered this to be a problem of farmers’ failing to understand and assert their rights, which could be address with public education.[186] In October 2015, Agriculture Ministry officials responded to a Human Rights Watch letter requesting information about land issues in Karen State by saying that they had received no complaints at their office of land confiscations. This suggests that farmers were either not aware of the requirements to file complaints—or found such mechanisms inaccessible or futile.

III. Land Rights Under Domestic and International Laws and Policies

National Law

Land Laws

Current land laws in Burma are a continuation of land policies adopted after independence in 1948, when the government asserted ownership over all land within the country. Under the 2008 constitution, land ownership still rests with the government, which retains the power to rescind any grant of land rights.[187]

The acquisition of land for government purposes remains governed by colonial-era legislation. The 1894 Land Acquisition Act remains a key piece of legislation detailing legal requirements for proper land acquisition for public purposes. Under this law, the government can compulsorily acquire land for “public purposes” or for a companywhen notice is given and compensation is at market value.^[188] Human Rights Watch’s research found little evidence of proper compensation being provided as required under the Land Acquisition Act.

Farmland and Virgin Lands Management Laws

Recent legal developments from 2012—such as the passage of the Farmland Law and the Lands Management Act—have initiated what is akin to a private property system. Under the two land laws, land is classified into different categories including farmland, virgin, fallow, or vacant land, and forest land. The Farmland Law regulates paddy land; the Land Management Law regulates a range of lands including unused plots and abandoned lands.[189]

Under the Farmland Law, farmers can register, sell, mortgage, and lease land.[190] Farmers can secure their rights to land by obtaining Land Use Certificates (LUCs).[191] Farmland must be used for agricultural purposes and is not permitted to become fallow.[192] Ultimately, the state still retains ownership of all land, though it must continue to comply with the provisions of the Land Acquisition Act where the government acquires the land for a different purpose.

The Farmland Law and its rules create Farmland Management Bodies (FMBs).[193] FMBs carry out a variety of duties including issuing LUCs for farmlands, scrutinizing land use, and revoking land use rights. FMBs are also the bodies that resolve disputes relating to farmland.

The Lands Management Act regulates land that is not currently in use, or was previously used but was been subsequently abandoned. The act is important for farmers in Karen State because the traditional ways in which many Karen farmers cultivate land, including through taungya, or shifting cultivation, may cause the government to classify their land as vacant or fallow.[194] In addition, the “majority of these areas of land fall outside of the land surveys conducted by the SLRD,” meaning they are not well-documented at local land administration offices.[195]

The Lands Management Act contains provisions that recognize use of informal and undocumented farming, providing that such land can be reclassified as farmland and subsequently an LUC can be issued. In addition, rules implementing the Lands Management Act provide individuals informally using land with the right to contest the grant of land to a proposed user.[196]

Forests are important for the livelihood of rural Karen, many of whom forage in forests for fruits, herbs, and building materials. Such uses of forest are regulated under the Forest Law of 1992, so those who forage for materials in the forest can be accused of improper use and charged with trespass.

In some parts of Karen State, the KNU also plays a significant role in land disputes, in some cases issuing land documents under its own land regime for those within its zone of governance.[197] In 2014, the KNU formally adopted its own Land Use Policy, which “envisions recognition, restitution, protection and support of the socially-legitimate tenure rights of all Karen peoples.”^[198]

National Land Use Policy

In January 2016, the outgoing cabinet adopted a new National Land Use Policy. Key topics addressed by the policy include land administration, classification, dispute resolution, equal rights of men and women, and communal tenure systems.[199] The policy is intended to form the basis for amendments to existing land laws as well as implementation by new bodies to address land issues.

Adopted after several rounds of government-led expert and public consultations, the policy envisages that the government review and amend existing land classifications, including “recognition and registration of rights for all stakeholders including ethnic nationalities and smallholder farmers, when their rights have not previously been recognized and registered,” and specifically mentions rotating and shifting cultivation.[200]

Key aspects of the policy include a call for:

• A review of the status of land, including forest land, currently used for village livelihoods;
• Protection of that land as “customary land”;[201]
• Suspension of land use other than for public purposes until such a review is possible;[202]
• Emphasis on community consultations and participatory procedures;[203]
• Ensuring “equal rights” for individuals “to access accurate and complete information related to land use”;[204]
• Ensuring equal rights for men and women;[205]
• Creation of new procedures to oversee processes to provide notice and share information;
• The right to appeal land use changes;[206]
• Representation and participation of local farmer organizations when dealing with dispute resolution;[207]
• Providing for Environmental and Social Impact Assessments (ESIAs), conducted by future land use committees; and
• Providing for policy monitoring and evaluation by a still to be formed National Land Use Council, including assessing and analyzing “whether environmental and social safeguards are being applied for impact assessment purposes,” and whether those procedures guarantee free, prior, and informed consent.[208]

Part 5 of the policy speaks to issues of land acquisition, relocation, compensation, rehabilitation, and restitution, stipulating application of international best practices and human rights standards, and participation of “township, ward or village tract level stakeholders, civil society, representatives of ethnic nationalities and experts.”^[209] It also provides for land use and housing rights for individuals who lost land due to conflict.[210]

While civil society organizations have been generally positive about the adoption of the policy, representatives have expressed some serious concerns, including the need to promote democratic access to land for poor, vulnerable, and marginalized people who have little or no access, in line with the UN Food and Agriculture Organization’s Voluntary Guidelines for Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security.[211]

Land Administration

The Ministry of Forestry, recently merged into the Ministry of Natural Resources and Environmental Conservation (MNREC) as part of President U Htin Kyaw’s policy implemented in March 2016,[212] and the Ministry of Agriculture and Irrigation, are the responsible ministries for forestry and agriculture, respectively.

Under the MNREC, the Settlement Land Records Department (SLRD) is the main office responsible for managing land. The SLRD’s mandate includes “recording and registering interests in farmland and vacant, fallow and virgin land and for issuing LUCs to farmers whose use rights have been approved by a Farmland Management Body.”[213] The SLRD has officials at the state, division, district, and township levels.[214] The SLRD acts as the administrative office executing the decisions of FMBs, described above, as well as performing other administrative tasks and record keeping.

One problem is the SLRD has ostensibly conflicting mandates. On one hand, it is tasked with deciding rights to farmland but on the other hand, it is responsible to grant land for agri-business projects.[215] As a result, decisions over issues of land use and approving such projects need closer scrutiny. Per the Farmland Law, a fundamental problem is there is no explicit provision to appeal an FMB decision to a court of law, and courts have resisted taking jurisdiction in such cases.^[216]

The strong military presence among the staff of many Burmese administrative offices dealing with land is another issue, raising conflict of interest concerns among bodies that are supposed to be independent.

At the district and township level, FMBs are staffed by members of both the MNREC and the Ministry of Home Affairs’ General Administration Department (GAD), which “acts as the civil service for the new state and region governments and provides the administration for the country’s districts and townships.”[217] The Ministry of Home Affairs is one of three ministries reserved by the 2008 constitution to be headed by a high-ranking active duty military official appointed by the commander-in-chief of the armed forces.^[218]The Ministry of Home Affairs, particularly the GAD, is predominantly staffed by former military officers, a process of reassignment and retirement that increased during the Thein Sein administration.

Military “retirement” to civilian ministries elicited a series of public protests in 2015, although there is little the new NLD-led government can do in regard to the Ministry of Home Affairs because of its control by the military.

International Law

In the context of land issues, the government of Burma is obligated under international human rights law to respect rights to food, housing, and an adequate standard of living, as well as rights to peaceful assembly and freedom of expression. The government must also act to end discrimination against women and ethnic minorities in all spheres, including in public and political life and development planning.

Burma’s land laws and practices concerning confiscation of land, as well as restrictions on fundamental liberties, have resulted in violations of the rights of Karen farmers and other villagers in Karen State. The absence of adequate avenues for redress both to contest confiscation and to obtain compensation add to the abuses.

Right to Adequate Food, Housing, and Standard of Living

The right to food, housing, and an adequate standard of living are enshrined in article 25 of the Universal Declaration of Human Rights, which is generally considered to be reflective of customary international law. The declaration provides that everyone has a right to “a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care.”[219]These rights are also set out in article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR obligates member states to undertake steps to the “maximum of its available resources, with a view to achieving progressively the full realization” of the rights enshrined therein.[220] Burma has signed but not ratified the ICESCR, which means that it must not take actions that undermine the object and purpose of the treaty.[221]

A growing body of international human rights norms recognize the importance of access to land in ensuring these rights, particularly in areas where families rely on land to provide for their food. The UN Committee on Economic, Social and Cultural Rights, in its General Comment No. 12 on the Right to Adequate Food, noted:

[Access to food] is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights.… It is also inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies, at both the national and international levels, oriented to the eradication of poverty and the fulfilment of all human rights for all.[222]

In addition to the right to housing under the ICESCR, the International Covenant on Civil and Political Rights (ICCPR) obligates governments to respect and protect the rights of all people from arbitrary interference in their home and family life.[223] International standards prohibit “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”[224]

The UN Food and Agriculture Organization’s Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security reflect international best practices in relation to land tenure security. The guidelines specify that relevant political authorities should engage and seek:

The support of those who, having legitimate tenure rights, could be affected by decisions, prior to decisions being taken, and responding to their contributions; taking into consideration existing power imbalances between different parties and ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes.[225]

The guidelines urge governments to encourage “mechanisms for monitoring and analysis of tenure governance in order to develop evidence-based programs and secure on-going improvements” in land tenure programs, “to prevent corruption through transparent processes and decision-making,” and that beneficiaries are “selected through open processes” in which there is no political or other discrimination in order to promote social equality.^[226]

The guidelines recommend that to achieve all this, authorities should “set up multi-stakeholder platforms and frameworks at local, national and regional levels” to monitor and evaluate the implementation of land tenure policies and programs, including with technical support from international bodies.[227]

Right to Peaceful Assembly

Article 20 of the Universal Declaration of Human Rights and article 21 of the ICCPR recognize the right to peaceful assembly.^[228]

Under Burma’s 2012 Peaceful Assembly and Peaceful Procession Law, protesters can be charged for violating a variety of limitations that the law places on freedom of speech and assembly. Those wishing to hold an assembly must apply for advance permission from the chief of the township police force.[229] The law also states that the organizer of an assembly can be held criminally liable if the assembly deviates from the announced location of the protest or if participants use different chants than those notified to the authorities, even if the assembly was peaceful and did not disrupt public order.[230]The application process under the law not only requires basic date, time, and place information about the planned assembly, but seeks unnecessarily invasive information about the assembly’s purpose and schedule, the names and addresses of organizers and speakers, and even the chants they wish to use.

A new Peaceful Assembly and Peaceful Procession Law—passed by the upper house of parliament on May 31, 2016, but still pending debate in full parliament at time of writing—corrects some of the flaws of the 2012 statute yet still restricts freedom of assembly and freedom of expression in ways that significantly exceed those permissible under international legal standards.[231]

The Peaceful Assembly Law contradicts international human rights standards. Maina Kiai, the UN special rapporteur on the rights to freedom of peaceful assembly and of association, has stated that people wishing to exercise their right to peaceful assembly should not be required to obtain prior authorization to do so.[232] According to the special rapporteur, the imposition of criminal penalties on individuals who fail to ask the government for consent to exercise their right to peaceful assembly is an unacceptable interference with their right to freedom of assembly under international law.

The government has an obligation to facilitate peaceful assemblies “within sight and sound” of their intended target. When it fails to meet that obligation, arresting and prosecuting those who seek to assemble in a more appropriate venue is a disproportionate and inappropriate response.[233]

The special rapporteur noted in a report on the right to peaceful assembly and association in the context of natural resource exploitation that “the rights to freedom of peaceful assembly and of association play a key role in opening up spaces and opportunities for genuine and effective engagement by civil society in decision-making processes across the spectrum of natural resource exploitation activities”[234]

The special rapporteur has commented that the most egregious violations of freedom of association and assembly in relation to natural resource exploitation in many cases occur:

Far from centres of power, [against people] who are often at risk or already marginalized within society. They may lack access to information or the means of effectively advocating for their concerns, or they may be confronted with authorities are that are unable or unwilling to address their grievances. The ability to freely associate and to peacefully assemble are indispensable in this regard.[235]

Indigenous Peoples’ Rights, and Free, Prior and Informed Consent

International law concerning the rights of indigenous peoples is most clearly enunciated in the United Nations Declaration on the Rights of Indigenous Peoples,[236] which Burma supported at the UN General Assembly in 2007, and in the International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries.^[237] The UN Declaration provides for governments to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”^[238]

Under the Declaration, governments should also provide effective mechanisms so that indigenous peoples obtain just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural, or spiritual impact.[239]

As the UN Food and Agriculture Organization (FAO) notes, “At present, international law is much less clear about the land and resource rights of other individuals or groups who may not recognize themselves as ‘tribal’ or ‘indigenous’ but who nevertheless gain access to lands and resources through customary law, traditional inheritance or other informal processes.”[240] In its principles of implementation of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, the FAO calls for governments to engage in “active, free, effective, meaningful and informed consultation and participation with all those affected, including indigenous peoples and other communities with customary tenure.”[241]

While Burma has not enacted legislation providing for free, prior, and informed consent, its January 2016 National Land Use Policy contains references to “free, prior, informed, consent” without defining what the process or procedures entail.[242]

Women’s Rights

As a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Burma is obligated to end discrimination against women in laws, policies, customs, and practices. CEDAW requires states to “eliminate discrimination against women in the political and public life,” and in particular protects the rights of women to “participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.”[243]

In article 14 on rural women, CEDAW obligates governments to guarantee equal treatment of women and men in land and agrarian reform, as well as in land resettlement schemes.[244] CEDAW also provides that states must “eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development.”[245] CEDAW calls on states to eliminate discrimination against women in matters relating to marriage and family relations, including with respect to “ownership, acquisition, management, administration, enjoyment, and disposition of property.”[246]

The CEDAW Committee, the UN expert body that monitors state compliance with CEDAW, has stated in its General Recommendation No. 34 on the rights of rural women that states should “ensure that land acquisitions … do not violate the rights of rural women or result in forced evictions, and protect them from the negative impacts of acquisition of land by national and transnational companies, as well due to development projects, extractive industries and megaprojects.”[247]

Business and Human Rights

Although governments have international legal obligations to promote and ensure respect for human rights, businesses also have a responsibility to avoid causing or contributing to human rights abuses. The United Nations Guiding Principles on Business and Human Rights provide that business enterprises should undertake human rights due diligence to identify and mitigate the human rights harm not only of their own activities but also activities to which they are directly linked by their business relationships. Specifically, companies have a responsibility to “avoid causing or contributing to adverse human rights impacts through their own activities,” as well as to “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”[248]

Companies are also expected to undertake adequate due diligence to identify the potential adverse human rights impact arising from their activities and that of their suppliers, and to help ensure that victims have access to adequate remedies for any abuses that occur in spite of these efforts. Under the Guiding Principles, companies should consider ending business activity where severe negative human rights consequences cannot be avoided or mitigated.[249]

IV. Recommendations

To the Government of Burma

• End the arbitrary arrest of land activists by police, and release activists awaiting trial for undertaking peaceful activities to protest land seizures.
• Impartially investigate allegations of unlawful land confiscation, including those detailed in this report, publicly report the findings, and investigate and appropriately prosecute those responsible for rights abuses. Provide prompt and adequate compensation to villagers who have wrongfully lost access to their land.
• Amend the Peaceful Procession and Peaceful Assembly Act to bring it fully into compliance with international human rights standards:
  • Eliminate criminal sanctions for protests that fail to give advance notice or deviate from protest locations notified to the authorities, and eliminate all criminal sanctions for peaceful expression of views by protesters; and
  • Significantly narrow the overly broad restrictions on free expression included in the act, including by removing the ban on “incorrect” information and limits on political speech, and ending the requirement that protesters identify chants in advance.
• Create a special taskforce consisting of the Burmese Defense Services (Tatmadaw), the Justice Ministry, and the Myanmar National Human Rights Commission to investigate all alleged abuses by Border Guard Forces (BGF) connected to land confiscation in BGF-controlled areas, make public the findings of the investigation, and ensure the return of land taken improperly by members of the BGF to those who had previously been using it.
• Promptly implement a system to allow villagers to effectively report abuses by local government officials—including Settlement Land Records Department (SLRD) officers and other land officials, village tract and township leaders, and police—and protect complainants against retaliation for reporting abuses. Investigate allegations of improper behavior by district and township-level SLRD officials, including refusals to register land or make site visits for local farmers.
• Improve access to free or government-subsidized legal services for the rural poor for land and other cases.
• Amend the Farmland Law to provide a clear procedure that allows individuals to challenge decisions made by Farmland Management Bodies to a court of law. Direct Farmland Management Bodies to implement an independent dispute resolution mechanism for land conflicts, ensuring that such bodies are linguistically and geographically accessible and contain representation of women and relevant ethnic groups.
• Ensure that in all future government land acquisitions:
  • The “public purposes” for which the government may acquire land under the Land Acquisition Act are clarified;
  • Proper advance notice is given to affected farmers, and farmers are given an adequate opportunity to voice disagreement and have their reasons for disagreement heard by authorities; and
  • When land is taken, fair compensation is paid to affected farmers, including individuals who have long occupied or used the land in question but do not possess land registration documents.
• Expand programs to ensure effective and fair land registration processes for individuals in conflict-affected and formerly conflict-affected areas. In the interim, adopt policies to ensure that no land parcels for which there are credible existing claims, including historical claims not currently documented by formal government systems, are granted to businesses for new projects.
• Improve existing local land administration by:
  • Ensuring broad representation of farmers, ethnic minorities, and women in Farmland Administration Bodies;
  • Providing additional support for efforts aimed at documenting existing land usage and claims to land;
  • Amending the land tenure registration system to increase land tenure security for smallholder famers, and include recognition of communal land ownership. The tenure registration system should also recognize that individuals in conflict-affected areas face particular difficulties in obtaining land registration, and relevant officials should take steps to ameliorate those difficulties; and
  • Ensuring that farmers can document claims to land through processes consistent with historical practices in their community, including by seeking attestation of other community members living in the village.
• Ensure that new laws and regulations promoting business and development contain provisions that take account of the consequences that new investment will have on existing land conflicts.
• Adopt government monitoring systems to collect land statistics, disaggregated by gender. This should include the percentage of women and men with legally recognized and documented land rights.
• Implement robust consultation procedures so that affected ethnic minority groups, working transparently through their own representative institutions, can intervene in accordance with the National Land Use Policy prior to the approval or commencement of any project affecting their lands.
• Ensure that all land evictions or displacements are implemented in accordance with international human rights standards, including the UN Basic Principles and Guidelines on Development-Based Evictions and Displacement and, for indigenous peoples, the UN Declaration on the Rights of Indigenous Peoples.

To the Burmese Defense Services (Tatmadaw)

• Ensure that Border Guard Force (BGF) units operate under the effective control of the military, and ensure that any abuses by BGF personnel, including seizure of land, are impartially investigated and prosecuted.
• Immediately issue a decree to BGF personnel prohibiting intimidation tactics against individuals who oppose land confiscation, and stating that doing so will subject them to discipline or prosecution as appropriate.

To the Government of Karen State

• End all arbitrary restrictions on public protests regarding land confiscation and other matters. Permission should be routinely granted subject only to reasonable restrictions on time, place, and manner.
• Ensure that policy consultations on land issues in Karen State include all relevant stakeholders, including women and ethnic minority groups, and are in accordance with the National Land Use Policy.
• Immediately end the use of arbitrary arrest and detention and other tactics aimed at intimidating and silencing land rights activists.

To Domestic and Multinational Companies Operating in Karen State

• Refrain from investments or business activities that involve arbitrary seizure of land from farmers.
• Operate in accordance with the UN Guiding Principles on Business and Human Rights to ensure that operations do not cause, benefit from, support, or, through other business relationships, engender human rights abuses. Proceed with projects only after assessing human rights risks, including risks concerning seizure of land and labor rights. Identify measures to prevent or mitigate the risk of rights abuses, and establish and implement effective monitoring mechanisms that permit continual analysis of human rights risks.
• Implement robust consultation procedures with communities affected by business operations, making sure that affected communities fully participate in every part of the process. Take steps to ensure meaningful participation by women in consultations concerning land acquisitions.
• Establish effective grievance mechanisms, in line with best international practice, so that individuals affected by projects can raise complaints directly to companies in addition to the government.
• Operate in accordance with the National Land Use Policy on proposed investments and operations using land in Karen State, in negotiation with local communities.
• Urge the Burmese government to respect existing land rights, including customary land rights, and to reform land laws and regulations in line with international human rights standards.
• In cases where a company’s operations have contributed to land seizures, ensure that displaced communities are provided with adequate compensation.

To International Donors and Financial Institutions

• Take measures with respect to activities funded by international donors and international financial institutions to:
  • Undertake due diligence to identify the potential human rights impacts of all proposed activities and avoid or mitigate adverse impacts, and do not support activities that will contribute to or exacerbate human rights violations;
  • Provide relevant information in a timely and easily understood form to communities about proposed and ongoing activities;
  • Consult and cooperate with communities in an effort to obtain support from ethnic minorities whose lands or territories and other resources are affected in any way prior to commencing with activities. Act to ensure full and open public participation without risk of retaliation for those expressing critical views; and
  • In activities that risk an adverse human rights impact, require independent supervision and grievance mechanisms.
• Support nongovernmental organizations to provide legal services and land rights education to individuals and communities affected by land seizures in Karen State and elsewhere.
• Support outside training programs for state and local level government land administration offices on best international practice on human rights and land issues.

Acknowledgments

This report was researched and written by Caroline Stover, a fellow with the Asia Division of Human Rights Watch. Lara Casalotti, an intern with the Asia Division, provided research support. David Scott Mathieson, senior Burma researcher, advised and assisted with the research. The report was reviewed by Janet Walsh, deputy director in the Women’s Rights Division; Arvind Ganesan, director of the Business and Human Rights Division; and Jessica Evans, senior researcher and advocate on international financial institutions. This report was edited by Phil Robertson, deputy Asia director, and reviewed by Brad Adams, Asia director. James Ross, legal and policy director, and Danielle Haas, senior program editor, provided legal and program review. Production assistance was provided by Shayna Bauchner and Storm Tiv, Asia Division associates; Olivia Hunter, publications and photography associate; Fitzroy Hepkins, administrative manager; and Jose Martinez, senior coordinator.

Human Rights Watch would like to thank the land rights experts who consulted with us on the laws, policies, and context of land issues in Burma, including SiuSue Mark, Rob Oberndorf, and staff at the Karen Human Rights Group (KHRG) and Karen Environmental and Social Action Network (KESAN). Above all, we gratefully acknowledge those who shared their stories with us.

Summary

Whenever they want to do mining again, they should do it far from the people and not the way they did it this time. They should explain to everyone what the advantages and disadvantages are. People need to know what to expect.

—Nagomba E., Mwabulambo, March 8, 2016

Nagomba E., 75, has lived all her life in Mwabulambo, a small rural community in northern Malawi. Like most women in the area, she works as a farmer to support her family—her husband and three grandchildren who survived their own parents—growing rice, maize, and cassava close to her home.

In 2008, she was surprised to find strangers driving big trucks and carrying heavy machinery near her crop fields. They were workers of Eland, a coal mining company. While the government had already given the company a license to operate a mine right by her village, Nagomba and her neighbors first heard about the mine when they saw the trucks.

When she eventually learned that they were digging coal, she hoped it would bring development to the village and some benefits such as job opportunities and healthcare infrastructure for her and her family. Instead, the mining company cut the community’s existing drinking water supply by destroying the water pipes running through the mining area. They left the community with a few boreholes and river water for drinking and domestic use. Nagomba used to have access to tap water near her house. Since the pipes were destroyed, she has had to make the strenuous hike down to the river about four times a day to fetch water. She worries that the river may be polluted from the mine, and she is uncertain if water from the river is safe to drink.

With little information from the company, Eland Coal Mining Company, or the government about the health and environmental impacts associated with mining or how to protect her family against them, Nagomba and other community members also face considerable health risks, especially in the absence of a community health center.

Launch Gallery

A few months after the trucks arrived, Eland, with the government’s approval, told Nagomba’s family and more than a dozen of their neighbors to move from the land the community had used as farms and upon which they had built their homes for several generations. They were told the company needed the land. The company gave Nagomba’s family just 50,000 Malawian Kwachas (MWK) (about US$150) as compensation: an amount that, she says, fell short of the basic material costs to buy new land and replace her house. As a result, her family was forced to sell two cows to cover the expenses needed to build a new home, and they lost some of their fields. Later on, the company started using coal to fill holes in the dust road leading from the main road to the mine. Nagomba believes that some of the coal floated into her remaining fields by the road and caused her harvest to decrease significantly.

Launch Map

Two years later, in 2010, the mining company asked Nagomba and her family to move again. This time they refused. “I really wish I had known before moving the first time that where we built our second house was a location that would be used for mining later on,” Nagomba said. In 2015, Eland closed operations in Mwabulambo, leaving behind piles of coal and several open pits filled with water next to Nagomba’s house.

Nagomba is worried about her family’s future. She thinks that children and animals could fall into the open pits and that the river water she and other villagers are using might be polluted because the company has not cleaned up the mining site. The local government officer in charge of environmental inspections at the mine left in 2015, and Nagomba has not seen any government or company official in more than a year.

***

Stories like that of Nagomba are all too common in Malawi’s mining communities. Over the past 10 years, Malawi’s government has promoted private investment in mining and resource extraction as a way to diversify its economy, which previously was mostly comprised of agricultural production. Malawi possesses considerable mineral deposits, including large uranium and coal reserves in the north as well as gemstones and rare earths in the south. The government has issued a high number of prospecting licenses for many parts of the country, allowing exploration for oil and gas extraction in areas including those around Lake Malawi that are protected United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage sites.

Karonga, where Nagomba lives, is located on the northwestern shores of Lake Malawi and on the border with Tanzania. Karonga has been the country’s test case for coal and uranium mining. It is the district where the first uranium mine opened in 2009, and where two out of the four biggest coal mines in the country are now located.

The government hopes that private sector investment from Malawian and international companies will transform the country, creating jobs and improving residents’ livelihoods as well as their access to water, health care, education, and other infrastructure.

But this development strategy poses significant risks to local communities. As multinational extractive companies—including from Australia and Cyprus—have started to explore and mine in Karonga district and neighboring districts around the lake, communities have voiced serious concerns about potential environmental damage, which in turn threatens people’s rights to health, water, food, and housing. More than 10 existing and potential future extraction sites are located on the shores and tributaries of Lake Malawi, a fragile ecosystem and a key source of livelihood for over 1.5 million Malawians. Where mining activities require land acquisitions, communities are worried they might lose their lands and homes without due process, adequate compensation, or suitable alternatives.
 

Based on more than 150 interviews with community members, government officials, civil society groups, and company representatives, this report examines the human rights impacts of Malawi’s nascent mining industry on communities living in and around the country’s mining areas and assesses the nature and extent of the information about mining to which local residents have access. Using Karonga district in northern Malawi as a case study, the report documents how Malawi currently lacks adequate legal standards and safeguards to ensure the necessary balance between developing the mining industry and protecting the rights of local communities. It examines how weak government oversight and lack of information leave local communities unprotected and uninformed about the risks and opportunities associated with mining.

While Malawi has some laws and policies that protect the rights of communities potentially affected by mining—some of which mention the need to monitor impacts of mining licenses and to compensate them for certain losses—they are poorly implemented and enforced. The result is that key government watchdogs stand by as spectators while mining operations are allowed to progress, regardless of the negative impact they may have on local communities or the environment.

A new draft law, the Mines and Minerals Bill (MM Bill), while relatively progressive in many respects, fails to address one of the core problems described in this report: a lack of transparency about the risks related to mining.

This report makes recommendations to strengthen existing laws, to improve the proposed MM Bill and Access to Information Bill (ATI Bill), and to enforce existing regulatory protection standards.

Malawi’s extractive industries are still in their infancy and there are opportunities for the government and investors to respect rights and minimize the risks faced by communities and natural ecosystems, even as they push for economic development. These include ensuring that the draft mining bill protects the rights of local communities, including their right of access to information; that the social and environmental impact of new mining projects is comprehensively and credibly assessed and addressed; that resettlements are implemented with full respect for rights; and that there are enough regulators to evaluate new proposals and follow up with onsite visits. It is important that the government assesses how much damage has already been done due to mining projects, and that it ensure that communities are properly informed about the potential benefits and risks of existing and future projects.

Mining Practice and Promises

Global industry standards have evolved to recognize that unless mine operators exercise caution and vigilance, it is likely that mining will harm surrounding communities. In Malawi and globally, there is evidence that without effective government regulation, not all companies behave responsibly. Even companies that make serious efforts to do so often fall short without proper government oversight. The United Nations Guiding Principles on Business and Human Rights provide basic steps companies should take to respect human rights, including conducting due diligence to avoid causing or contributing to human rights abuses through their operations; avoiding complicity in abuses; and taking steps to mitigate them if they occur.

Several extractive companies have come to Karonga district in the past 10 years seeking to exploit natural resources, particularly uranium and coal. As in Nagomba’s case, communities do not often have prior knowledge of proposed mining operations since consultation is either insufficient or nonexistent. This is especially worrying as mining operations have had a major impact on the daily functioning of these communities, often complicating access to water, health, cropland, and food, and forcing relocations of community members. At the same time, companies operating in the district, including Paladin Africa Limited (Paladin), Eland Coal Mining Company, and Malcoal, have largely failed to deliver on promises to build schools, health centers or clinics, and boreholes, and to create employment opportunities for community members.

None of the communities in Karonga or civil society organizations interviewed by Human Rights Watch indicated they opposed, in principle, exploration or mining activities on their lands. However, community members repeatedly stressed inadequate information about mining-related health risks; inadequate participation in decision-making about the relocation process; a lack of proper notification before resettlement; inadequate compensation for losses from mining; a lack of government oversight to help mitigate current and future risks to health, water, food security, land and livelihoods; and a lack of awareness of their rights or companies’ responsibilities under national laws and international standards.

For example, in the coal and uranium mining areas in Karonga district that Human Rights Watch visited, residents said that they face health and livelihood risks due to the mining and suffer from increasing rates of illnesses that could be mining-related. Some complained that trucks pass along narrow village roads, coating homes and local schoolhouses in dust, and worried about the potential for serious respiratory diseases and other health impacts that scientific studies have associated with exposure to mining-related pollution. Several villagers also claimed that mining had destroyed water pipes or contaminated other water sources such as boreholes they depend on for drinking and irrigation. Farmers complained that dust in the air, coal on the road, and poor water quality impacted their crops and decreased the harvest of their fields, threatening economic ruin. Mining in Karonga district has also resulted in some families being resettled, often without adequate warning, decent resettlement conditions, or compensation.

In some cases, the harm that communities have suffered due to nearby mining operations is reported by the media or documented in studies conducted by international and civil society organizations. But in many other instances, the data simply does not exist to confirm or refute alleged negative impacts or their links to mining operations. Some community activists may wrongly attribute health or environmental problems to nearby mining operations. Others may fail to perceive a link that does in fact exist. The lack of healthcare infrastructure in these communities makes monitoring and addressing the health impacts of mining operations nearly impossible. This uncertainty is part of the problem. Government regulators repeatedly fail to determine whether companies are complying with their legal responsibilities, or whether they are causing harm to nearby communities.

Out of three companies featured in this report and contacted by Human Rights Watch, only one company, Paladin, said that they are monitoring the environmental impact of their mining activities in Malawi and are sharing these reports with the government. But they have never published their results, leaving communities unable to properly assess the risks associated with mining or mitigate the impacts that it can have on livelihoods. None of the companies contacted made any monitoring results available to Human Rights Watch.

Impact on Women

Human Rights Watch found that when mining has negative consequences for communities, women are disproportionately impacted. Malawi’s Constitution and policies recognize women’s right to full and equal protection in the law as well as their right to non-discrimination on the basis of their gender or marital status. However, in practice, their rights are largely curtailedby socio-cultural gender norms and patriarchal beliefs and attitudes.

It has often been particularly difficult for women to access information about mining and its risks—important to them as family caregivers—because their participation in meetings with companies or the government was limited. Women could be directly or indirectly excluded from such meetings. For example, if and when meetings were called by companies or the government they were not typically announced ahead of time, and women would often be busy working on their fields or at home at the time of such meetings. As a result of the short notice, they would not have the time to make the necessary arrangements to be able to attend. Even when women were present, they were sometimes unable to engage due to gender norms that restrict women participation in public gatherings or because of language issues. That is, meetings were sometimes conducted in English or Chichewa, which rural women in Karonga district typically do not speak.

In Malawi, women, both young and old, are often the primary caregivers at home and are also largely responsible for growing crops on the fields that feed the family. Therefore, when mining and climate change impacted crop productivity and contributed to food shortages, women have had to work long hours to make up for the shortfall and sustain the family. Also, concerns about water pollution compelled many women and girls to walk longer distances to fetch water from what they believed was a less contaminated source, further away from the mines. This exposed them to dangers and left them with less time to attend school, earn money, and rest.

The communities in Karonga district follow largely patrilineal systems of land inheritance, and men tend to have more decision-making power concerning land transfers. As a result, women have little say in how compensation is spent.

Government Role

Many human rights abuses described in this report result from the government’s failure to effectively monitor, let alone systematically address, the impacts of mining operations.

International and regional human rights law obliges Malawi’s government to protect the rights of its citizens from potential harmful impacts of mining operations and to ensure that communities have access to information about these impacts and risks before, during, and after operations.

Malawi’s current regulatory framework for mining and the environment is outdated. The laws were passed long before current mining operations started and afford communities little protection from environmental pollution and harmful social impacts. While impact assessments should be mandatory for all projects that potentially affect the environment and community health, Malawi’s regulatory framework regarding Environmental Impact Assessments (EIAs) for mining operations remains unclear and incomplete as it does not require the assessments of social impacts. Malawi’s mining law also provides little guidance with regard to environmental impacts of mining, leaving the scope and cycle of environmental monitoring at the discretion of government officials. It also largely fails to make information about mining and related risks available and accessible to affected communities. Land laws establish a variety of forms of land tenure and set out standards for land transfers or compulsory acquisitions. However, there is no national resettlement policy, and, in practice, land rights for individuals and communities near mining sites are highly insecure.

The draft MM Bill the government is developing does not address the core problem described in this report: access to adequate information. Quite the contrary, one of its major weaknesses is a broad confidentiality provision that would essentially prevent communities from accessing information about the risks related to mining. This is happening at a time when Malawi has just joined the Extractive Industries Transparency Initiative (EITI)—a global network aimed at improving transparency in mining governance— as a candidate country and is preparing and negotiating an ATI Bill. Even though the draft ATI Bill from November 2015 appeared to be acceptable to most relevant stakeholders, the government revised the bill again in February 2016. Unlike the 2015 draft, the revised bill does not provide for the establishment of an independent oversight body; it limits the principle of maximum disclosure to documents created after the adoption of the law; and it gives the minister of information the power to determine “fees payable for processing requests for information,” which can discourage poor people from requesting information.

The government should dramatically improve the process for considering mining project proposals to ensure that it assesses and addresses possible environmental and social impacts in a comprehensive and credible manner. This means mandating a greater and more explicit focus on environmental risks and human rights in the licensing and monitoring process in the proposed Mines and Minerals bill. Implementation will also require adequate numbers and capacity of regulators so new proposals can be evaluated properly, including through site visits wherever appropriate. The government should also ensure that communities are properly informed about the potential benefits and risks of mining and are involved in developing mitigation strategies to address any adverse impacts. Moreover, the government should require compensation for loss of land and other resources and ensure that effective and accessible grievance mechanisms provide redress to those who suffer harm.

Government and Company Responses

Several public officials interviewed by Human Rights Watch openly admitted that they do not know how prevalent or how serious the impacts of mining on communities are and that they are not proactively providing information about the risks to affected communities. In fact, some government officials said that the government essentially leaves companies to regulate themselves, a practice that is inconsistent with Malawi’s obligations under international human rights law and that has consistently proven disastrous in other countries, including neighboring countries in southern Africa.

Malawi’s government has also acknowledged the impact mining can have on the health and livelihoods of people living in nearby communities. Government officials are aware of the weaknesses of the regulatory system and admitted that authorities sometimes fail to adequately protect environmental health and monitor pollution due to capacity problems or lack of internal coordination among government agencies at the various levels of government.

In interviews with Human Rights Watch, the government committed to increasing the number of health facilities for residents in mining communities and to including a focus on social issues in guidelines for EIAs. The Ministry of Natural Resources, Energy and Mining promised to visit each mine once per month. In a meeting with Human Rights Watch, officials of the ministry said that they were working with Eland to set up a closure plan to ensure the safety of the residents. However, at time of writing no updates about the implementation of these steps were communicated to Human Rights Watch.

The three companies examined in this report have a mixed track record on preventing, mitigating, and monitoring social and environmental harms from mining.

In a letter to Human Rights Watch, Paladin stated that the company maintains safety, health, radiation, and environmental management programs. Paladin also pointed to a Human Rights Policy, highlighting Paladin’s commitment to respecting human rights. However, it is not clear how these programs or the Human Rights Policy intend to assess and mitigate the environmental and social impacts of mining. In an interview with Human Rights Watch, Paladin Malawi said that the company does not publicly disclose monitoring results regarding water testing or other potential environmental impacts. Paladin did not reply to Human Rights Watch’s request for information about the monitoring results at their mine in Kayelekera.

Malcoal stated in an email to Human Rights Watch that they “strive to help the government to reduce rural poverty by providing employment while at the same time taking care of our communities and the environment.” Malcoal disputed that any resettlements had taken place in Kayelekera but did not comment on any of the other issues raised in this report.

Representatives of Eland Coal Mining Company informed Human Rights Watch in writing and by phone that their mine has suspended operations. At the time of writing, they had yet to reply to Human Rights Watch’s request for comment on the substantive issues raised in this report, including plans for rehabilitation of the mining site.

The Way Forward

The government of Malawi should take preventive measures to ensure that mining projects are planned and carried out in a way that does not violate the rights of local communities, and that minimizes displacement and disruption of livelihoods. This includes the addition of provisions to the draft MM Bill that require robust environmental and health monitoring at all stages of the mining process and ensure access to information as guaranteed under the constitution.

The government should also put in place effective mechanisms to oversee the activities and impacts of mining during and after operations. This involves robust reporting requirements for companies and regular, unannounced inspections by the government. The government needs to ensure that impact assessments and periodic inspections contain relevant details, including the potential impacts that exploration, active mining, and abandoned mines may have on communities and their rights; steps the government and companies will take to continually inform and communicate with affected communities; and how adverse rights impacts will be mitigated or avoided. The government should also ensure effective coordination between different ministries and national, regional and district government bodies involved in mining governance and oversight.

Finally, the government needs to effectively disseminate information to communities that may be adversely affected by operations of extractive industries before, during, and after operations. Impact assessments, environmental monitoring reports, and resettlement plans should be easily and readily available and accessible to the public by providing short summaries in non-technical language; translating the summaries and the full reports into local languages; posting them on the Internet; providing copies in public buildings such as local schools; and holding information sessions in directly affected communities.

Key Recommendations

To the Government of Malawi

• Include provisions in the draft Mines and Minerals Bill that require robust environmental and health monitoring at all stages of the mining process and ensure access to information as guaranteed under the constitution.
• Ensure coordination between different ministries and national, regional and district government bodies involved in mining governance and oversight.
• Revise the draft Access to Information Bill to ensure that minimum requirements for access to information follow international best practices and are in line with the model law by the African Union.

To the Ministry of Natural Resources, Energy and Mining

• Ensure that impact assessments and periodic inspections contain relevant details, including the potential impacts that exploration, active mining, and abandoned mines may have on communities and their rights; steps the government and companies will take to continually inform and communicate with affected communities; and how adverse impacts will be mitigated or avoided.
• Ensure impacts on marginalized populations, such as women and children, are monitored and addressed.Such monitoring should cover the cumulative impacts on the environment and livelihoods, including impacts resulting from extractive industries, social changes, and climate change.
• Ensure that impact assessments, environmental monitoring reports, and resettlement plans are easily and readily available and accessible to the public, including by providing short summaries in non-technical language; translating the summaries and the full reports into local languages; posting them on the Internet; providing copies in public buildings such as local schools; and holding information sessions in directly affected communities.
• Promptly fill all vacancies for inspectors in the Ministry of Mining and at the district level including the vacant environmental officer position in Karonga district. Increase the number and capacity of staff and resources available to conduct more regular in-field assessments, including unannounced inspections.

To the Ministry of Lands, Housing and Urban Development

• Provide a process for fair compensation and remedy negative human rights impacts of relocation in mining communities, including through compensation for losses that have already occurred. Pay special attention to the impacts on women and ensure they are appropriately compensated for their losses.

To the Ministry of Health

• Actively monitor health indicators and disease patterns in mining communities and ensure that results are easily available and accessible to the public.
• Develop a national strategy to improve health in mining communities and increase access to healthcare in mining areas, taking into account the increased health risks for marginalized populations. Include measures to support family caregivers, especially women.

To the Ministry of Agriculture, Irrigation and Water Development

• Map out the boundaries of watersheds potentially impacted by mining operations and actively monitor water throughout watersheds under the influence of mining to identify potential contamination, including monitoring waste water discharges, ground and surface water sources, and drinking water in mining communities on an ongoing basis. Ensure that results are easily available and accessible to the public.

To the Mzuzu Regional Office of Mines and to the Karonga District Commissioner

• Ensure that environmental monitoring reports are easily available and accessible to the public in the northern region.

To Companies Extracting Minerals in Malawi

• Improve public access to information and transparency by strengthening communication with local and national civil society and with affected community members. Make the outcomes of environmental assessments, periodic environmental monitoring reports, resettlement action plans, and updates on implementation available in easily accessible formats and fora. Include short summaries of each document available in non-technical language. Summaries and full reports should be translated into local languages, made available online, and posted in public buildings.
• Provide a process for fair compensation and remedy negative human rights impacts of relocation in mining communities, including compensation for losses that have already occurred. Pay special attention to the impacts on women and ensure they are appropriately compensated for their losses.

Methodology

This report is based on research conducted between July 2015 and July 2016, including six weeks of field research in Malawi. Human Rights Watch visited the capital city, Lilongwe; the regional capital Mzuzu; as well as mining sites in Karonga district and Rumphi district. Human Rights Watch undertook field work in two rural communities in Karonga district. The district was chosen for the research because large-scale and mid-scale mining activities in this area are most advanced. The first large-scale uranium mine was opened in Karonga in 2009, and two out of four major coal mines are located in the area.

Human Rights Watch interviewed more than 150 people for this report, including 78 people living in mining communities; 9 company representatives; and more than 45 people who currently work, or have worked, on mining issues in Malawi and neighboring countries, including: staff of international and nongovernmental organizations (NGOs), health administrators, and academic researchers. We also spoke to 24 government officials, including five from the Ministry of Natural Resources, Energy and Mining, two from the Ministry of Health, two from the Ministry of Information, two from the Ministry of Lands, Housing and Urban Development, one from the Ministry of Agriculture, Irrigation and Water Development and six local political representatives.

Of the 78 community members, 45 were adult women and 33 were adult men. Six were traditional leaders. Interviews were conducted in Chichewa, Tumbuka, and Nkhonde via an interpreter. All interviewees provided verbal informed consent and were assured that they could end the interview at any time or decline to answer any questions. Where requested or appropriate, this report uses pseudonyms to protect their privacy. Interviewees were not compensated for speaking to us.

Human Rights Watch reviewed secondary sources—including mining inspection reports, academic research, and media reports—to corroborate information from community members. We also reviewed Malawian laws and policies. In March and August 2016, Human Rights Watch met with government officials at the relevant ministries in Lilongwe. In July 2015, February 2016, and July 2016 Human Rights Watch wrote to the mining companies cited in this report to request information on the steps taken to address the lack of access to information and other human rights issues documented in this report. In response to our request Human Rights Watch received a letter from Paladin in August 2015, an email from Eland in August 2015, and several emails from Malcoal in July 2016. Human Rights Watch also met with then-Paladin Malawi Manager Greg Walker in August 2015.

I.Background

Extractive Industries in Malawi

In this country, as I have said so many times before, we have no mines, no factories. The soil is our only mine, in fact. And all the money that we have here comes from the soil. It comes from the soil in the form of [m]aize, [g]roundnuts, [b]ananas, [b]eans, [p]eas, [t]obacco, [c]offee, [c]otton, [r]ice and so forth.[1]

—Former President Hastings Kamuzu Banda, Lilongwe, 1964

Like many other countries in southern Africa, Malawi is rich in a range of natural resources. Among these are deposits of coal, gemstones, rare earths, cement, uranium, oil, and gas.[2] While the largest coal fields are located in northern Malawi (Karonga and Rumphi districts), most of the gemstones and rare earths can be found in the south. More significant considering Malawi’s small size are the uranium reserves found in Karonga district, which amount to 0.5 percent of global deposits.[3] Oil and gas deposits around Lake Malawi are currently under exploration.

During more than 30 years of dictatorship from 1961 to 1994, former President Hastings Banda promoted farming as the path to development and prosperity. He opposed the extraction of minerals, even denying their existence.[4] In the absence of other industries, most Malawians lived as subsistence farmers in the countryside.

Today, Malawi’s extractive industries only make up a small portion of the Gross Domestic Product (GDP). This is in contrast to most neighboring countries, such as Zambia and Zimbabwe, where mining has long made substantial contributions to the national economy.^[5] The mining sector has grown since 2009, with growth rates of 14.9 percent in 2012 and 6.9 percent in 2013.[6] Several mines stalled their operations with the collapse of global commodity prices in 2014, which explains the modest contribution of the mining sector to Malawi’s GDP in recent years. The amount that the mining sector contributes to Malawi’s GDP has fluctuated over the years and data on the matter varies across sources. One government report put the 2014 contribution at around 3 percent, while another one only attributes 0.9 percent of the GDP to mining for the same year.[7] President Peter Mutharika suggested in 2015 that mining was contributing 6 percent to the country’s GDP in that year.[8]

When market prices recover, the government expects substantial increases in Malawi’s extractive output. For 2016, government analysts anticipated growth of 3.6 percent.[9] The government has already approved an estimated total of 500 licenses for industrial and artisanal mining and has repeatedly affirmed its plans to diversify the economy. There are currently only 50 large-scale active mining licenses in Malawi. The number of prospecting licenses for future large scale industrial mining is at 74, which, if all came to production, would more than double the number of active mining operations.[10]

In 2011, the World Bank provided the government with US$25 million in credit for its Mining Governance and Growth Support Project, which aims to increase efficiency and transparency within the mining sector. In 2015, the government published the results of a countrywide, geophysical airborne survey which showed geophysical data about mineral occurrences in Malawi. The extractive sector is likely to attract more investment.^[11]

Several existing and potential mining sites, including those for energy resources such as uranium and coal, are located along the shores and tributaries of Lake Malawi, a fragile ecosystem and key source of livelihood for lakeside communities of more than 1.5 million people. In 2009, Paladin (Africa) Limited, a Malawian-incorporated subsidiary of Australia-based Paladin Energy Ltd., started production in Malawi’s first large-scale uranium mine, with around 10,000 tons of yellowcake uranium deposits and a projected capacity of 1,500 tons of yellow cake uranium a year.^[12] While the mine is currently not in production because of declining uranium prices after the 2011 nuclear accident in Fukushima, Japan, Paladin remains on “care and maintenance," with the possibility of resuming activities in the near future. Exploration for uranium continues in other parts of Malawi such as Mzimba district.^[13]

Malawi is also beginning to explore ways to further exploit its coal reserves totaling at least 22 million tons.^[14] Malawi’s coal production declined from around 67,000 tons in 2013 to under 63,000 tons in 2014 due to fuel shortages.^[15] In 2015 the four largest coal mines had a combined capacity of 10,000 tons per month, with an average workforce in the coal sector of around 600 people between 2013 and 2015.^[16]

According to the World Bank-funded 2016 Strategic Environmental and Social Assessment of the Minerals Sector, the Department of Mines has issued 10 mining licenses and 13 prospecting licenses for coal. Most of these licenses were issued for areas located in northern Malawi, including the Lufira coal field where the Eland coal mine is located and the North Rukuru coal field where Malcoal Mining Limited (Malcoal) operates.^[17] The assessment also reports that several planned coal power plants are set to open in Malawi, which could increase coal mining and production.^[18] In 2015, Chinese companies announced intentions to invest in coal power plants in the Mwanza District of southern Malawi.^[19] The cost of a new plant is estimated at $600 million, the bulk of which will be carried by a Chinese bank with contributions from the Malawi government.^[20]

Further exploration for oil and gas extraction are underway, including in areas around the lake that are protected UNESCO World Heritage sites. The government started to issue petroleum exploration licenses between 2011 and 2014, awarding prospecting licenses to four multinational companies.[21]Criticism from civil society and allegations of corruption voiced by the attorney general slowed the licensing process down and the attorney general recommended a cancelation of the exploration licenses.^[22]

In 2014 UNESCO published a report warning of the risks to Lake Malawi’s ecosystem and asking the government not to issue exploration licenses for areas within the national park.^[23] With respect to threats originating outside the protected area, the report also recommended that the government “[p]revent[s] pollution of the lake and its inflowing rivers through effective regulation and control of mining effluents, other industrial and domestic pollution and agrochemicals.”[24] In the same year, the World Heritage Committee urged “the State Party to cancel the oil exploitation permit which overlaps with the property and reiterated its position that oil, gas and mineral exploration and exploitation are incompatible with World Heritage status.”[25] In July 2016, the committee reiterated its recommendations from 2014 and requested a progress report on their implementation in February 2017 and again in December 2017.[26]

Poverty and Impacts of Climate Change

Today, Malawi remains one of the world’s poorest countries. A series of droughts and floods in 2015, followed by another long period of drought in 2016, adversely impacted Malawi's economy, which is heavily reliant on its agricultural sector.^[27] The country's GDP growth slowed from 6.2 percent in 2014 to 3 percent in 2015, and inflation has been growing rapidly.^[28] These droughts have caused numerous food shortages, especially of maize, leading to increased food insecurity in the country.^[29] In April 2016, the government declared a state of national disaster after drought conditions continued on from the 2015 season. To help the country weather the economic storm caused by the droughts, the International Monetary Fund (IMF) recently released to Malawi $76.8 million in extra loans, which is in addition to existing programs.[30]

According to the Intergovernmental Panel on Climate Change (IPCC) and other scientific studies, the African continent is already experiencing the effects of climate change in many regions.[31]For example, a recent study characterized countries in southern Africa as “global hotspots” of climate change, noting a high likelihood of drought or flooding and declining crop yields or ecosystem damages in the future.[32]The effects of climate change will put an additional strain on local economies, which already see increasing poverty and high population growth rates.

While Malawi’s current carbon emissions are among the lowest in the world—about 0.1 metric tons of carbon dioxide emission per capita—increasing fossil fuel extraction, including coal mining, contributes to global climate change, which in turn affects food security.[33]

Human Rights Concerns

The extractive industries can be a highly destructive and dangerous industry if not managed and regulated responsibly.^[34] Researchers and activists around the world also increasingly perceive it to be an industry that benefits foreign investors while the local economy sees little benefit, and, most importantly, local communities are left empty-handed.^[35]

Critics have long alleged that the push for industrialization and growth needs to be accompanied by a government-regulated“social license”—a legal and policy framework to ensure that local communities will not suffer harm—instead of leaving social responsibility to the discretion of mines and other industrial projects.^[36] Even the world’s major mining firms generally acknowledge that mining can be dangerous when not carried out responsibly and that painstaking evaluation of possible negative impacts is imperative.^[37] In particular, mining activities can impact several fundamental human rights, including the rights to health, water, food, and housing.

Negative health risks are common in mineral mining. The risks are especially high in uranium mining due to its radioactivity and toxicity.^[38] Individuals who work in or live near uranium mining activities can face a broad array of health challenges associated with exposure to uranium, including cancers and kidney and respiratory diseases.^[39] While most existing studies focus on the health impact of uranium mining on miners, several studies show that uranium can also lead to health problems in nearby communities.^[40] Manifestations of negative health impacts are often delayed, however, because the initial cell damage is not lethal.^[41]

Health outcomes are also worsening for individuals who work in or live near coal mining activities. Rates of illnesses such as lung and other types of cancers, respiratory and kidney diseases, heart attacks, and high blood pressure are increasing within these communities.^[42] Air contamination caused by mining activities affect the health of nearby communities. For example, fugitive dust, small airborne particles generated by the blasting of heavy equipment used in surface coal mining, contains particulate matter that can be toxic to human health.^[43] Also, the transport of coal releases dust and rocks, particularly when trucks are uncovered, which can cause respiratory symptoms in surrounding communities.^[44] Children in these communities often suffer increased rates of asthma.^[45]

Finally, mining also significantly contributes to climate change, which in turn adversely impacts governments’ ability to realize the rights to health, water, and food. Although disaggregated statistics covering the global mining sector are not available, mining has been recognized as a significant contributor to human-made climate change by emitting significant amounts of greenhouse gases during production and through the extraction of fossil fuels.^[46]

Minimizing Risks and Protecting Rights

International law requires governments to take effective steps to minimize or mitigate risks and harms stemming from mining operations and to monitor and respond to resulting impacts.^[47] Human rights law also imposes procedural obligations with regard to access to information, participation in the formulation and implementation of government policy, and access to a remedy. These obligations are meant to protect the rights of local communities before, during, and after mining operations.^[48]

On company responsibilities, the United Nations (UN) Guiding Principles on Business and Human Rights (Guiding Principles) detail basic steps companies should take to respect human rights, including conducting due diligence to avoid causing or contributing to human rights abuses through their operations; avoiding complicity in abuses; and taking steps to mitigate them if they occur. Several voluntary industry initiatives similarly emphasize the important role of risk assessments and regular and transparent monitoring.^[49]

First, governments and companies should take preventive measures to ensure that mining projects are planned and carried out in a way that does not violate the rights of local communities and that minimizes displacement and disruption of livelihoods. A central element of any efforts to minimize risks is to assess environmental and social impacts throughout the lifecycle of mining. Governments’ obligations under international human rights law to protect and prevent mean they should investigate the actual and potential implications of mining operations, including generating and collecting information related to environmental and social impacts before mining starts. Data collection should include assessments of:

1. Hazardous properties and other potential risks from mining;
2. The likelihood of impacts on community members, including those at higher risk;
3. The risk of harm to people, communities and the environment; and
4. Options that are available to prevent harm.

Impact assessments for mining operations should include baseline data for pollutants in water, food, and other natural resources and should evaluate how the project will affect marginalized groups and individuals. Land use also requires careful planning and robust monitoring to minimize the impacts of resettlement on the rights of affected communities.

Second, governments should establish effective mechanisms to oversee the activities and impacts of mining during and after operations and publish updates on the potential health and environmental risks. Such mechanisms involve robust reporting requirements for companies and regular unannounced inspections by the government. Affected groups and individuals should be given the opportunity to contribute to monitoring activities, and data should be disaggregated. Governments should also ensure that adequate healthcare infrastructure is in place to monitor the potential health impacts of the mining activity on communities.

Third, governments should effectively disseminate information to communities that may be adversely affected by operations of the extractive industries before, during, and after operations. Access to information is a prerequisite for communities to participate in discussions with the government and mining companies. Meaningful participation relies upon, and cannot be achieved without, information. Participation also helps to ensure that development projects involving land and natural resources adequately and equitably address the rights of affected communities. The availability and accessibility of information also enables affected communities—especially those vulnerable to mining’s potential impacts—to seek redress for harms suffered.

II. Gaps and Weaknesses in Malawi’s Legal Framework

The 1981 Mines and Minerals Act (MMA) is the principal law currently governing mining in Malawi, and provides for the licensing and regulation of private mining companies. It also contains a section setting out some environmental protection standards throughout the lifecycle of mining.[50] General standards for protecting the environment, including Environmental Impact Assessments (EIAs), and monitoring are laid out in the 1996 EnvironmentManagementAct (EMA). The 1983 Petroleum (Exploration and Production) Act governs oil exploration and production. The 2013 WaterResourcesAct regulates the use of natural water sources for mining activities and the discharge of water from mining operations.

Discretionary Protection and Monitoring Standards

Malawi’s legal and regulatory framework does not ensure proper assessment of the risks from environmental pollution before the mining starts and fails to effectively protect the rights of nearby communities by rigorous monitoring during and after operations. Environmental and social impact assessments and ongoing monitoring are intended to ensure scrutiny and rigor in evaluating the possible negative impacts of proposed new mines and in developing mitigation strategies. Unfortunately, weak regulations for impact assessments and monitoring have rendered this key safeguard largely ineffectual in Malawi.

First, legal standards for EIAs leave too much discretion to authorities. While impact assessments should be mandatory for all projects that potentially impact the environment and community health, Malawi’s regulatory framework on EIAs for mining operations remains incomplete and unclear. Per the MMA it is at the minister’s discretion to require an EIA to be carried out before a license for a mining project is approved.^[51] The EMA in conjunction with the 1997 Guidelines for Environmental Impact Assessments (EIA Guidelines) have been interpreted to impose mandatory EIAs for mining projects, but the EIA Guidelines are vague about the types of mining projects that require an EIA.^[52] In any event, the current environmental legislation entirely fails to require applicants to evaluate the social impacts of mining on nearby communities.

An additional problem is the weak provisions on public participation during the EIA process. According to Section 26 (1) of the EMA, the public will be invited to send written comments on the EIA, but the nature and structure of public hearings remain at the discretion of the director of environmental affairs (“where necessary”). Furthermore, consultation is not mandatory prior to the commission of the EIA. While the EIA Guidelines are slightly more emphatic about the role of public consultation in the EIA process, the government’s role in ensuring meaningful participation remains discretionary.^[53]

Second, Malawi’s mining law provides little guidance with regard to the environmental impacts of mining. In considering whether or not to approve a project, the director is required to “take into account” any likely environmental impact of the project.^[54] This provision is weak and highly discretionary, as neither the EMA nor MMA specify the ways in which this impact should be measured or the criteria that need to be fulfilled for the project to go ahead.

Third, according to the EMA, the director of environmental affairs shall conduct “periodic environmental audits of any project” after a project has been approved and begun operating.^[55] However, the current law does not specify how often these audits should be carried out and what they entail. As a result, regular monitoring and enforcement of environmental protection measures remain at the discretion of the director and the implementing entities such as the district environmental officers.

Legal Barriers to Accessing Environmental Health Information

While Malawi’s Constitution sets out various procedural rights that apply to environmental decision-making, such as the right of access to information, the current regulatory regime on mining does not promote access to environmental and health information.^[63]

The current MMA contains provisions that could render any information delivered to the government for mining-related activities confidential. In particular Section 7 of the MMA, the Prohibition Against Disclosure of Information, could be read as preventing the release of environmental monitoring and related information for the duration of the mining license’s validity, unless both the director and the holder of the mineral right agree otherwise.^[64]

While Section 52 of the EMA appears to emphasize the importance of access to information for the general public, the limitations contained in the same provision act to significantly limit this content. Section 52 (3) of the EMA contains a confidentiality provision relating to the publication or disclosure of proprietary information relating to the environment.^[65]

III. Karonga District: Malawi’s Mining Experiment

Karonga is the northernmost district of Malawi, with Lake Malawi to the east, Tanzania to the north, and highlands to the west and south. The district was isolated until 1981, when the national highway was extended to the district from the south.

Still one of Malawi’s poorest regions, the majority of the district’s 250,000 residents depend on subsistence farming and international and governmental food aid. The terrain is flat and fertile along the lake and increasingly hilly toward the west. The main sources of income for most families are farming maize, rice, and cassava and fishing in the lake.

Momentum and national interest in Karonga’s extractive industries was first ignited by the commissioning of Kayelekera’s uranium mine in 2007. Kayelekera is a community consisting of nine villages and located 52 kilometers west of Karonga amid rolling hills covered with patchy forest. It is located about halfway between the district capital of Karonga town and Chitipa. The population in this area has grown significantly over the past decade—in part due to an influx of migrant laborers—with about 3,000 people living there at its peak in 2009.^[71]

The uranium mine in Kayelekera is the largest mine in Malawi. In fact, it is the first and only large-scale mine defined by heavy equipment, sophisticated technology, and a workforce in the hundreds of employees.[72] The mine, which became fully operational in 2009, is operated by Paladin—a company based in western Australia—while the Malawian government maintains a 15 percent stake. Between 2011 and 2014 the mine’s output was near capacity, producing about 1,000 tons of yellowcake per year.[73] In 2014, operations were temporarily stopped due to low uranium prices globally, with the mine placed on so-called “care and maintenance,” but the company continues to employ over 200 workers.[74]

Several other mining ventures followed Paladin’s example. These include Karonga-based Malcoal and Eland Coal Mining that are two of the country’s four biggest coal mines, along with Mchenga and Kaziwiziwi in Rumphi district. Together, these mines make up 95 percent of the total coal production with a combined capacity of 10,000 tons per month.^[75]

The Malcoal open pit coal mine is based on the back of a mountain close to a river, about 3 kilometers from the Paladin mine. Formerly known as Nkhachira, the mine was taken over by Malcoal in 2013.^[76] As of June 2015, Malcoal was a joint venture with 90 percent owned by Australian Intra Energy Corporation (through its subsidiary East Africa Mining Limited) and 10 percent owned by Consolidated Mining Industries Limited, a private Malawian entity.[77] Malcoal was reported to have closed down operations because of a shrinking local market at the end of 2015, but the mine was operational as of July 2016.[78] Intra Energy has also announced plans to construct a coal-fired power station at Chipoka, Salima, with coal supplies coming from the mining site in Kayelekera.^[79]

Mwabulambo coal mine, an open pit mine located 30 kilometers north of the district capital, is operated by Eland Coal Mining Company, a Malawian company. Eland is a subsidiary of the Isle of Man based Heavy Mineral Limited, which is in turn owned by Independent Oil & Resources PLC, a company based in Cyprus.^[80]Over 70 percent of Independent Oil & Resources PLC is owned by the Norwegian oil magnate Berge Gerdt Larsen and members of his family.^[81] The coal mine is located on a flat and fertile area near Lake Malawi where residents have traditionally relied on subsistence farming, especially rice farming. It is unclear when and if operations will resume after they stopped in 2015. According to information given by Jan Egil Moe, chairman of the board of Independent Oil & Resources PLC, in July 2015, “Eland Coal Mine has suspended operations as the operations were not sustainable, and is in the process of being liquidated.”^[82]However, site visits in August 2015 and March 2016 suggested that the company still employs a local watchman and has not started rehabilitating the area.

Before Mining Starts

In Malawi’s Karonga district the government and companies have failed to comprehensively assess environmental and social risks and impacts before mining operations begin and have not communicated potential risks with affected communities.

Insufficient Consultation about Risks of Mining

Silence reigns in this country over the mining issue, especially uranium.… When ignorance reins, it’s the poor that suffer. Nobody, whether mine or government officials, takes responsibility to educate people on the hazards of mining. People lack basic education about uranium and coal mining.^[83]

—Archibald Mwakasungla, chairman of Uraha Foundation, Karonga, August 2015[84]

Many residents of mining communities, especially women, interviewed by Human Rights Watch said that they did not receive sufficient information about mining and its potential risks before the operations started.

One woman at Mwabulambo, where Eland started operating in 2007, said that she “didn’t know anything about the mining before the machines came in.”^[85]"They didn’t give us any information, they just started digging,” she said. Another female resident of Mwabulambo “just saw vehicles coming through…. No government official came to tell us what was going on.”^[86]

A 46-year-old woman in Mwabulambo recalled:

The first thing I remember was that a white man came into the village and asked children about the rocks in this area. The people found out that there is coal. They started talking to the government, but they didn’t discuss their plans with us. They only told us that we would all become very rich once they start with the mining. We didn’t know anything about mining and we believed them.^[87]

EIAs are supposed to be carried out before mining starts production, and according to EIAs reviewed by Human Rights Watch, companies held community meetings in Mwabulambo and Kayelekera before the mining started or at an early stage of exploration. However, it is not clear how inclusive and comprehensive these consultations were. The EIA for Eland coal mine explicitly states that “[a]lthough a lot of effort was made to ensure gender balance …, women, especially at village levels, were not keen to provide their comments and inputs.”^[88] The EIA for Nkhachira Coal Mine, Malcoal’s predecessor, reports that the managing director informed the people that there is a “requirement for establishment or improvements of some infrastructures including health center, Police Unit, potable water, maize mills, roads and many more,” but does not mention any potential risks posed by coal mining.^[89]

Villagers interviewed by Human Rights Watch in fact emphasized that the community meetings, if they happened at all, often did not include information about how the project would impact the environment and their livelihoods, including planned use of land, water, and other natural resources.^[90]

The minister of mining pointed out that the Mwabulambo and Kayelekera communities’ knowledge about the health centers and schools promised by the companies can be seen as a “sign that they [the communities] have been consulted, otherwise they wouldn’t know that there is a promise.”^[91] However, even if this type of information was given prior to the start of mining operations, promising benefits to the community cannot be a replacement for providing adequate information about the associated risks and mitigation strategies.[92]

Government officials confirmed that the current legal framework does not require companies to include and communicate social impacts and health risks of mining, such as threats to water sources or specific impacts on marginalized populations, and does not provide for avenues through which communities may access environmental health information.^[93]

Relocations

The company put white crosses on all the houses that should be relocated. They also put such a cross on our house…. They first came in March 2012 and said that we need to move in April. But they only waited one week and then came back to say that now is the time to move. We didn’t know where to go. We had to sleep outside for a couple of days. It was difficult to move as this was in the rainy season and we ended up putting up at someone’s verandah and under the tree.^[100]

—Resident, Mwabulambo, March 2016.

Mining in Karonga district has resulted in the resettlement of some families often without adequate warning, decent resettlement conditions, or compensation.

Malawi’s laws and policies do not adequately regulate resettlement or land transfers for commercial investment. Although Malawi’s Constitution, the Land Act, and the Mines and Minerals Act (MMA) offer some standards for compulsory land acquisition through the government, they do not provide adequate safeguards or sufficient guidance on this process or related compensation.^[101]

Government officials from the Ministry of Lands, Housing and Urban Development told Human Rights Watch that the land acquired by mining companies in Karonga district was customary land. Community members and NGO representatives also mostly suggested that this was previously customary land.

When the government claims customary land, they bear the responsibility of resettling and compensating those using such land. According to the constitution, “[f]air and adequate compensation must be given in the event of compulsory acquisition.”[102] The Land Act also stipulates that “any person who … suffers any disturbance … loss or damage to any interest which he ... may have … in such land, shall be paid such compensation for such disturbance, loss or damage as shall be reasonable.”^[103]With regard to mining, the MMA also provides for fair and reasonable compensation for disturbance of land rights and damage to any crops, trees, buildings, stock, etc.[104]

However, the principal secretary at the Ministry of Lands, Housing and Urban Development told Human Rights Watch that people who have been using customary land in mining communities will not be compensated for the land as such because they do not possess a land title.^[105]

Neither of the existing laws defines what “reasonable” compensation is and, to date, Malawi does not have a national resettlement policy that guides the process of resettlements and compensation.^[106] This exacerbates a broader problem of insecure land tenure, especially for customary land that is communally owned.^[107]

Under the Land Acquisitions Act, compensation is determined by the lands commissioner or by agreement between parties.[115] According to Section 9, if compensation is not agreed upon by the parties, it will be assessed by the government. Criteria to be considered when calculating compensation are the value of the land, the value of the improvements made to the land, and how much the land has appreciated in value since the land was originally acquired.

According to the Ministry of Lands, Housing and Urban Development, the process of assessing compensation is carried out by the regional offices of the ministry.^[116] The results will be shared with the affected people and district commissioner who will be responsible for implementation.

Further guidance for resettlement in the case of government seizure of customary land can be found in the 2013 Mines and Minerals Policy and the 2002 National Land Policy. According to the Mines and Minerals Policy, “[c]ompensation and resettlement of land owners and communities affected by mining” is identified as a social issue that “the government will adequately address.”[117] According to the National Land Policy, “all land acquisition, including the acquisition of customary land, by the government requires negotiations and payment of compensation at fair market prices.”[118]

While these policies state that it is the responsibility of the government to compensate and resettle those displaced in mining activities, the National Land Policy indicates the mining companies also bear some responsibility. Specifically, the policy states that “mining rights will include conditions for practicing conservation methods including setting aside funds for compensation to those adversely affected by the activity and mining and quarrying operators will be required to meet the costs of reclaiming land.”[119]

With no national guidelines or regulations on resettlement, the mining companies operating in Karonga district have been inconsistent in how they go about this process.[120]

Although the Karonga district commissioner told Human Rights Watch that relocation processes fall under her authority, they said they were unaware of the current situation of relocated families at the Eland or Malcoal mines.^[121] The principal secretary at the Ministry of Lands, Housing and Urban Development said that they were not aware of any irregularities in the relocation processes in Karonga district.^[122]

Complicating the relocation process is the role of local chiefs in negotiating deals for resettled families when customary lands are involved. Both Malawi’s 1967 Land Act and the 2016 Customary Land Bill reaffirm the notion that customary land is administered by the chiefs for the community.[123] In recent years, however, numerous conflicts over land have arisen because chiefs appear to have participated in land deals without fully consulting local residents or gaining their consent.[124] In an interview with Human Rights Watch, Karonga District Commissioner Rosemary Moyo said that, in some cases, chiefs may have taken some of the money meant for the resettled families.^[125] Several villagers in Kayelekera and Mwabulambo said that they believed the chiefs had received money from the companies in exchange for agreeing to the relocations.^[126] Asked about the allegations of corruption levied against him, Chief Kayelekera told Human Rights Watch: “Whenever I answer questions people will say I am saying the wrong thing.”^[127]

In Kayelekera, community members said that Malcoal resettled at least 12 households about 5 kilometers away from the actual mining site in September 2013.[128] A school teacher confirmed to Human Rights Watch that the 12 families who were moved lived next to the Malcoal offices, across the street from the primary school.^[129] Even though some of the families had already heard about the planned relocation, three families told Human Rights Watch that they did not know when the move was going to happen. In the process, furniture was destroyed and several animals were killed. A 20-year-old woman at Kayelekera recalled:

The people from the company came to us and said they wanted to build a police station where our house was.… They didn’t give us any notice and just chased us away. Two of our goats died because of a bulldozer. They were in a cage and couldn’t escape while we were busy protecting our furniture.… We couldn’t say anything because the machines were already there. We didn’t manage to save all our belongings. We lost some pots, bags and many other things.^[130]

Another woman, whose family was contacted by Malcoal’s workers in June 2013, said that the company had told her family that they “could come any time to make us move.”^[131] Three months later, company workers came back to tell them that they have to leave. “They came with bulldozers and told us to pack our stuff immediately,” she said.^[132]

Malcoal disputes the assertion that Malcoal has resettled community members. Mr. Hastings Jere, director of Malcoal, said in an email to Human Rights Watch that there was “not even a single villager or village … to be relocated to pave way for mining.”[133] The company did not specifically respond to our request for further information about any resettlements at a later stage, or to the accounts provided by families who reported that they were relocated from their homes, which were near the Malcoal offices.

In Mwabulambo, community members said that more than 30 households were relocated from customary land at different stages of Eland’s operations between 2008 and 2015. Human Rights Watch interviewed individuals from four of these households.[134] They complained that the company did not notify them sufficiently in advance of the resettlement, and they criticized the company and the government more generally about a lack of transparency regarding the terms of the relocation and compensation.[135] They reported that, while they had heard about the relocations before, the actual timing of the resettlement came as a surprise, and they had to leave their homes before they managed to build new ones. One family even had to stay under a tree for about a month because they had to move so quickly.^[136]

Eland Coal Mining Company did not respond to our request for information about the resettlement process in Mwabulambo.

In Kayelekera, none of the relocated families Human Rights Watch interviewed said they had received compensation for any of their losses when they were resettled by Malcoal. “We had to ask the chief for new land and had to pay 30,000 MWK (about $90) for it. We had also lost our fields and needed to buy new ones,” one woman said. “The company didn’t pay us any compensation.”^[137]

Another family in Kayelekera said that Malcoal’s manager had initially promised to compensate them. “In June 2013 [Malcoal] workers came and wrote down our name and assessed the value of our house. They said that they could come any time to make us move and that we may receive compensation,” the woman remembered. But when the company workers came back three months later, “they came with bulldozers and told us to pack our stuff immediately. They didn’t say anything about compensation anymore.”^[138]

In Mwabulambo, each family received some form of compensation from Eland when it relocated them, ranging from 50,000 to 200,000 MWK (about $150 to $600), but the basis for individual payments remains unclear.^[139] A community representative interviewed by Human Rights Watch suggested that these were standard amounts that the company paid to each relocated family—independent of the actual value of their belongings—and that they had increased payments over time in response to mounting pressure from the community.^[140] A representative of a local NGO who worked with the community for many years said “no one knows” the formula used to determine compensation.^[141]A 58-year-old widow and mother of 12 said: “We were never told why we received 50,000 MWK (about $150). They just told us this is the amount you get.”^[142] Another family who had also been paid 50,000 MWK (about $150) had to sell two cows to be able to build a new house.^[143]

Several families said they could not maintain the same standard of living after resettlement due to the minimal compensation they received. A woman from Mwabulambo said:

Even though they offered us very little money, we had no choice but to move. They said that they own the land and put us under pressure. We didn’t have the power to resist and we were afraid of the risks of coal. 50,000 MWK (about $150) is too little money. We had a brick house in the old location. But the money wasn’t enough to build a new one, so now we only have a mud house.… The area where we had our fields was also taken away by the miners. There is only a small part that we can still use.^[144]

In addition to the lack of adequate compensation for the house and other property, several families told Human Rights Watch that the relocation had reduced their income because the new land they acquired after the move was not as fertile. A woman in Kayelekera told Human Rights Watch that her family was relocated to “a really bad piece of land” by Malcoal in 2013. She explained that the land from where they were moved had good soil; she was able to grow maize, cassava, sweet potato, and groundnuts. She used to harvest 30 to 50 bags of maize per season, but now she only has 10 bags or less.^[145] Another woman from Mwabulambo who was relocated by Eland said:

Our harvest in these existing fields is also reduced because the coal is flowing into the fields during the rainy season. We used to have 3 bags (50 kg per bag) of maize, now we are left with less than one bag. The maize doesn’t grow well any more.^[146]

According to community members, Eland company officials claimed that they had bought the land from the government and would not compensate the families for all their land because they did not have a legal title. One woman said: “Our fields are gone; we can’t use them anymore…. We weren’t compensated for the fields, they just gave us money for the house.”^[147]

When asked about plans for how to address these challenges, the principal secretary in the Ministry of Lands, Housing and Urban Development said that residents should not have moved out of their homes before receiving compensation.^[148] The principal secretary also said that people would usually be assigned new land by the chief. The government has also been working on a draft resettlement policy. However, none of these initiatives include steps that the government will take to investigate and remedy harm already caused by relocations in Karonga district.

The issue of land ownership and control is central to many women’s concerns around mining in Malawi. Most women we interviewed did not possess a formal title or maintain significant control over customary land allocated to families, despite describing making significant improvements to and use of family plots. They said that in Karonga district, traditional leaders assigned customary lands to their husbands and considered them to be in charge.

Several women told Human Rights Watch that they felt excluded from participating in meetings with the company or chiefs.^[149] Women from Mwabulambo said that company officials or chiefs often organized meetings on very short notice, which makes it difficult for women to attend, or they otherwise felt uncomfortable attending the meetings, which are traditionally dominated by men. As a result, they said they relied on their husbands as the main source of information about the planned relocation, including the amount of money the family received. Women also said they had little say, if any, in how the compensation was spent. A woman in Mwabulambo said: “The money for the new house was given to my husband. I was not happy with how he spent it. But he is the head of the household, he decides.”^[150]

Officials at the Ministry of Lands, Housing and Urban Development expressed hope that the new customary land law will increase women’s participation in relocation processes. They emphasized that of the seven members of the planned customary land committees managing the resettlement process at the local level, at least three will need to be women.^[151] Ministry officials also said that the new land laws will enable local communities to register their land. The ministry hopes to facilitate joint registration between husband and wife through the development of guidelines and trainings. The ministry also pointed out that the Land Acquisitions Bill will clarify the criteria and process for compensation. At time of writing the Land Acquisitions Bill has not yet been tabled by the parliament.

During Mining Operations

In Karonga District the government has largely failed to put in place effective mechanisms to oversee the activities and impacts of mining operations, and it has failed to effectively disseminate information to affected communities.

Deficient and Irregular Monitoring

It is obvious that mining affects health, but the companies oversee the impact. If there is a problem, we will react. But we are not proactive regarding health monitoring in mining areas.^[152]

—Minister of Health Peter Kawale, Lilongwe, March 2016

As described in the following sections, people in communities in Karonga district have numerous concerns about what they perceive to be the impacts of mining on their health, food, soil, and drinking water. For some of their concerns, it is easy to determine that they are linked to mining activity. For others, a link can only be established through regular monitoring and scientific research.

Although Malawi’s government has a duty to monitor the health impacts under the national environmental regulations, Human Rights Watch found that it has often failed to do so in Karonga district. Indeed, weak government oversight and inadequate reporting practices lie at the core of many challenges experienced by mining-affected communities in Karonga district.

During mining operations, the government has failed to regularly and comprehensively carry out environmental and social inspections and monitoring. Government monitoring is not of sufficient frequency and scope to assess the potential community health risks associated with mining. A particular concern in Malawi has been the lack of baseline information about the presence of hazardous substances in air, water, and soil that would allow community members to understand the effects of the extractive industries and to make informed decisions.

While government officials at the Ministry of Natural Resources, Energy and Mining said that they are planning to visit each mine at least quarterly, the government acknowledged that mining inspections often happen only about once per year.^[153] A review by Human Rights Watch of a total of 27 inspection reports by the Regional Mining Office from 2004 to 2014 suggested that inspections at most mining sites are conducted less than once per year.^[154]

In an interview with Human Rights Watch, chief mining engineer at the Regional Mining Office in Mzuzu also said that they are planning “quarterly inspections at the mines.” However, he admitted that the current equipment and staff is not sufficient to do this.^[155] He also indicated that inspections are focused on workers’ health and safety, rather than on community impacts.

An August 2014 inspection report from the northern region states that the government “should seriously consider (without fail) carrying out quarterly inspections in order to enforce mining regulations which have been abandoned by mining companies as noted in the previous financial year.”^[156] The same report indicates that no inspections were conducted in 2013 due to insufficient funds.^[157]

At the local level, government officials in Karonga district told Human Rights Watch that they often fail to do regular monitoring visits. The director of the Water Department in Karonga, Aaron Chaponda, said that his office only takes water samples from the Paladin uranium mine, but does not perform any testing at Eland or Malcoal mines.^[158] In Karonga district, where Paladin, Malcoal, and Eland are based, there is an additional challenge for monitoring and access to information. The district environmental officer, who oversees environmental monitoring at the district level, was moved to Lilongwe after a conflict with the community in 2015. According to ministry officials, the communities in Karonga had accused the officer of not telling them the truth about the water quality, but government officials denied the allegation.^[159] At time of writing, the position has not been filled and District Commissioner Rosemary Moyo told Human Rights Watch that she had not visited the communities since the departure of the district environmental officer.^[160] As a result, no testing may have been undertaken by a qualified government official for more than a year.

The scope of the inspections of the Regional Mining Office is often limited to qualitative observations made by the inspection team, including observations of working conditions and safety equipment for mine workers. None of the reports Human Rights Watch examined included results of water or soil testing or any indication that such testing had been conducted.^[161] Ministry officials also told Human Rights Watch that the scope of their monitoring is limited to occupational health and safety and does not include community impacts.^[162] A government official from the Ministry of Agriculture, Irrigation and Water also told Human Rights Watch that water testing is not performed more than once a year.^[163]

There are also indications that government decisions about which mines to prioritize for inspection or monitoring are taken on based on the reputation of the company, rather than the risks posed to the community. For example, one government official pointed out: “Paladin is very mindful and they have a reputation of protecting the environment and the community. We go there less often, because the smaller mines and underground mines are more concerning.”^[164] Another government officer said that the costs for water testing will be shared between the company and the Water Department. As a result, the Water Department only carries out inspections for Paladin uranium mine.^[165] Ministry officials told Human Rights Watch that they sometimes rely on company test results, which undermines the independence of the monitoring process. They also said that they sometimes receive financial or transportation support from the companies. For example, government officials may travel to the mines in vehicles owned by the company.^[166] This can create additional mistrust and fear among communities that companies may be influencing monitoring results.

In interviews, government officials made conflicting statements about who bore the responsibility for monitoring the operations of mines and overseeing the follow up to inspections. For example, the district commissioner in Karonga told Human Rights Watch that they are not responsible for mining issues in the district because this is not an area of governance that falls under their responsibilities after the devolution of the government.^[167] Harry Hardson Mwanyembe, chairman for health and environment on Karonga’s District Council, also said that the local government is not responsible for the mines and that this would be one of the reasons why things were “not going right.”^[168] Local government representatives also told Human Rights Watch that they do not receive the environmental monitoring reports.^[169]“The [central] government fears that the community will act on the reports if given access,” said Patrick Kishombe, chair of the district council. “They don’t want that.”^[170]

Ministry of Mining officials claimed, however, that the district commissioner represents the government at the district level and should be the first point of contact for the communities, including for monitoring.^[171] At the same time, central government officials acknowledged that the ministry is not appropriately represented at the district level. “We have very few offices, only in Lilongwe and two additional ones in the regions, but not at the district level,” said Charles Kaphwiyo, then-director of the Department of Mines.^[172] Company officials indicated that the government performs inspection visits at the mines, but did not specify the scope, frequency, or agencies involved.^[173]

At the core of many people’s concern about the risks of mining is the fact that neither Mwabulambo nor Kayelekera have health facilities where they can be diagnosed and have their treated. Even the district hospital in Karonga town, serving more than 200,000 district residents, is not equipped to run the necessary tests to determine whether patients might have become ill from mining.

Dr. Ted Bandawe, medical officer at the District Hospital in Karonga, told Human Rights Watch that the hospital lacks “basic equipment to do proper diagnostic” procedures and, consequently, “[they] are failing to undertake basic procedures.”^[174] For example, blood testing equipment is so basic that it cannot test for the presence of toxic substances such as lead or arsenic in blood. Such substances can get into the water, or food sources that live in that water, through the mining process.

A woman told Human Rights Watch that her husband had worked at Paladin from 2006 to 2014, and she said that he has suffered from asthma since 2009. “We don’t know whether this is caused by uranium or coal,” she said. “We live very close by the road to Malcoal. Right now there are two [mining] vehicles passing by about seven times a day. My small son also has asthma.”^[175]

In Kayelekera, the closest health center is about 15 kilometers away from the village, and most families struggle with paying the costs for transportation to this location. “I can hardly afford [to get there],” said one 33-year-old woman, who lives with her husband and six children in Mwenelupembe village.”^[176]

In Mwabulambo, a traditional leader explained that community members often cannot access appropriate health care for themselves or their children because the health center is too far away.^[177] The health worker, who is only trained to distribute vitamins, also observed that his patients sometimes do not go to the health center because they cannot afford the trip. “They just go to the grocery store instead and buy some of the simple medication that is sold there,” he said.^[178]

According to the community, Paladin and Eland committed to building a clinic or health center when they started mining several years ago, but this has not yet happened.^[179] In fact, the commitment to “construct at Kayelekera … a clinic to a typical standard for such facilities in Malawi” is part of the development agreement between the Government of Malawi and Paladin.^[180] A community member in Kayelekera remembered: “By the time they opened the Kayelekera [uranium mine] they promised the community a clinic, but until today they have not built it. We are poor, so they will never keep their promises.”^[181]

“The situation for women is especially difficult,” said a 37-year-old woman who is the wife of a chief in Mwabulambo. “There is a law that says that women have to give birth at the hospital, otherwise they need to pay a fine. But the hospital is too far and the poor women can’t afford to go there…. People here are crying.”^[182]

When asked about implementation of these commitments, Minister of Health Peter Kawale indicated that his ministry was “not involved in the monitoring of company commitments for healthcare.”^[183] Officials at the Ministry of Natural Resources, Energy and Mining acknowledged that health centers are urgently needed in mining communities, but admitted that the government has not yet managed to promote enforcement of company commitments.^[184] None of the three companies responded to this issue when contacted by Human Rights Watch.

Lack of Access to Environmental and Health Information

Malcoal had promised us a health center, new taps, and bridges. They didn’t talk about any risks.[185]

—41-year-old woman, Kayelekera, March 2016

Communities in Kayelekera and Mwabulambo told Human Rights Watch that they did not receive regularly updated information about ongoing risks associated with mining, nor did they receive monitoring results from the mining companies. People are concerned that the dearth of knowledge about mining makes it difficult to protect themselves from risks, properly diagnose diseases, and access treatment. “The government should come and talk to the community about mining. They should educate us, including about the risks of coal mining,” one woman said.^[186]

A resident of Kayelekera, where Paladin and Malcoal are located, recalled that the community had asked Malcoal to do water quality testing for any harmful substances, but the company refused. She said: “Paladin does its own testing but they don’t tell us about the results.”^[187]

In 1992, the United Nations Conference on Environment and Development recognized access to environmental information, public participation in decision-making over natural resources, and access to justice as important pillars of sustainable development.

Chiefs, teachers, and health workers also confirmed the lack of access to the results of environmental testing done by both the government and the companies.^[188]“The government was here last month to test the water. But they usually don’t report back,” a teacher at a public primary school in Kayelekera told Human Rights Watch. She said: “I told them that they should come back and explain to the people what they found, but they never did.”^[189] Paramount Chief Kyungu, who is the traditional authority for the entire district, also expressed concern about the lack of access to environmental and health information for the communities affected by mining.^[190]

Malawian civil society organizations have voiced concern about the lack of access to information. Activists in Karonga said that they have contacted the companies several times to gain access to EIAs and monitoring reports but did not receive a response.^[191] Rachel Etter-Phoya, head of accountability and programs at Citizens for Justice, said: “The government keeps talking about win-win situation for the country and companies, and that's not going to happen when there is limited communication [with the communities] and poor access to information.”^[192]

Government officials at the Ministry of Mining acknowledged that they often fail to report back to communities after monitoring visits because they are afraid that this might create further tension.^[193]

Mining ministry officials pointed to a communications strategy that they are developing for the mineral sector.^[194] The draft of the strategy from November 2015 includes elements that could help improve communications with the communities. The strategy acknowledges that significant knowledge gaps exist on some key issues relating to the sector, including “the potential role of mining in local development, the legislative framework governing the sector; the appropriate roles and responsibilities of all stakeholders; and the typical steps of a mine lifecycle (including wrong perceptions that are widely held about the exploration phase, and the length of time required to develop a mine from exploration to full production).”^[195]It seeks to improve and increase direct communication with community members about “health issues; protection of vulnerable groups, including women and children; …relocation; resettlement; and land ownership.”^[196] However, the strategy fails to ensure that mining-affected communities receive regular and updated information about the results of environmental monitoring.

Ministry of Mining officials also said that Malawi is in the process of developing a new online cadaster system, which could also serve as a portal to make inspection reports available to the public.^[197] The Malawi Mining Cadastre Portal was launched in August 2016 and currently displays all large-scale mining licenses at the exploration and production stages.[198]According to the portal “additional datasets will be included as and when the data are validated and made available”.

The District Commissioner in Karonga said that they have never seen any monitoring reports.^[199] Local and foreign NGOs have long argued that the lack of access to results of the monitoring in Karonga district fuels rumors of contamination.^[200]

When asked about their environmental testing results in Kayelekera, Paladin’s then-Malawi Manager Greg Walker said the company tests the discharged water every four hours and submits monthly, quarterly, and yearly reports to the government. However, Greg Walker admitted that the company doesn’t disclose monitoring results regarding water testing.[201] Mr. Walker said: “We don’t disclose our monitoring results regarding water testing because there might always be outliers that can be misinterpreted by the general public.”[202]Mr. Walker said Paladin would not be opposed to the government sharing the results with the villagers, but the government has not done so to date.

Women and girls may be particularly affected by lack of access to information about mining and its dangers. Malawi’s Constitution and policies recognize women’s right to full and equal protection in the law, and non-discrimination on the basis of their gender or marital status. However, in practice, their rights are largely curtailedby socio-cultural gender norms and patriarchal beliefs and attitudes.[203] Poverty and discriminatory treatment in the family and in public life also negatively affect women and girls. Patrilineal systems of land ownership in parts of the country, including Karonga district, can further perpetuate discrimination against women in the family.[204]

Limited participation in meetings with companies or the government is one of the main challenges women face regarding access to information about mining, often of particular importance to them as family caregivers.

Several women said that they would learn from their husbands or the chiefs about promises companies made to the community, but could not access information about the risks of mining themselves. A woman who lives in Kayelekera recalled:

Many women attended a meeting [with Malcoal] but weren’t given the opportunity to speak. I attended the meeting but I didn’t raise my hand … I didn’t dare to ask a question. I would have liked to ask about transportation for child delivery.[205]

At Mwabulambo, several women said that women were excluded from participating in meetings organized by Eland.[206] One woman said: “Only the men can get information directly from the company or the government.”[207]As a result, women often rely on their husbands for information about what is happening.

Threats to Water

The pipes were right by my house, [with running water] in the kitchen and bathroom. And then they destroyed everything.[208]

—Nagomba E., 75, Mwabulambo, July 2016

Mining can have significant impacts on water in communities, and on watersheds more broadly.[209] These can include declining water quality—both ground and surface water—due to contamination; reduced availability of water; inadequate amounts of water for domestic and other uses; and decreased access to water and sanitation facilities due to resettlement.[210] Steps can be taken to mitigate the impact on communities or watersheds, but monitoring is necessary to ensure that the most severe effects are contained.

Both coal and uranium mining are known to be potential threats for nearby water sources and watersheds. Explosives used in coal mining can damage water tables; mining can release heavy metals in bodies of water and create acid mine drainage (AMD) and methane gas, contaminating nearby water supplies.[211] Surface coal extraction also directly causes AMD because it exposes rocks, both in the mine and in mine waste, to sun and rain. This exposure causes chemical reactions that lead to the formation of sulphuric acid and dissolved iron. When rain washes over the acidified rocks, the runoff into streams and groundwater acidifies water sources. Slurry (also known as tailings), a byproduct created when the coal is chemically washed to separate it from other minerals, can also contaminate water used by communities.[212]

Uranium mining creates radioactive and chemically toxic waste. The tailings retain radioactive elements as well as other hazardous materials including heavy metals.[213]

Open pit uranium mining sites produce waste rock on an average scale of 40 tons of waste to every one ton of recovered uranium, and the waste rock can also retain radioactive elements.[214] Historically, water overflows during heavy rains and leaching of contaminants into groundwater through the bottom of the tailings pond are the most common causes of accidental radiation release into communities.[215]

Interviewees in Kayelekera, where Malcoal and Paladin operate, described changes in the color, taste, and smell of the water used by households for drinking, cooking, and cleaning. One woman described the water that she believed to be contaminated as “sour and salty.”[216] While most people observed that the water they used generally looked clear, one woman stated: “During the rainy season the coal is swept from the mountain into the river as well as from the gulley, and at those times the water turns blackish.”[217] They do not know what impact this has had on the safety of the water since water testing does not happen on a regular basis, and, even when it does, results are not reported back to the community.[218]

Residents in Kayelekera complained that Malcoal does not properly manage its mining site and coal, and potentially dangerous coal run-off can enter the local river during the rainy season between November and March.[219] In particular, the mining company failed to take appropriate measures to segregate and contain tailings from the watershed and prevent the coal and mining waste from running into the local river.[220] An inspection report from the Regional Mining Office from 2014 also indicated that the mine “pose[s] severe environmental challenges to the local community and Sere River.”[221]

Malcoal company representatives interviewed by Human Rights Watch reported that government officials come about every three months for an inspection. “I don’t know whether the government is doing any testing,” said a site administrator at Malcoal. “But we make sure that the river does not get polluted.” Despite repeated requests, he and other company officials did not provide any details on the company’s strategy for mitigating the risks.[222]

People living in the community were also concerned about potential water pollution from the Paladin mining site. Bruno Chareyon, a French scientist who undertook partial testing of water sources in the village in 2012, warned that some “water sources will probably be impacted by the mining activities [including by] spillage, direct discharges and contamination of underground water resources.”[223]

In a letter to Human Rights Watch, Paladin explained that the company maintains safety, health, radiation, and environmental management programs.[224] Beginning in 2015, Paladin had started to discharge water from one of its tailings ponds into the river system. The company justified this by claiming it became necessary because the mine was not operational at the moment.[225] Company representatives said the water had been treated prior to discharge to ensure that uranium levels were below the World Health Organization’s guidelines for drinking-water quality, an authoritative basis for the setting of national regulations and standards for water safety in support of public health; however, the community remains skeptical.[226] A 24-year-old woman in Kayelekera said: “Everyone I know is scared of the water. But people still drink it because they are too far away from the taps or because they are not fit enough to walk such long distances.”[227]

For the community in Mwabulambo, one of the biggest worries is the destruction of previously available water sources by the mining company. Former President Hastings Banda ran a nationwide program to install piped water in rural areas. Mwabulambo was one of its beneficiaries, and the government installed several community drinking water taps.[228] When mining started in 2007, the company destroyed the pipes that supplied these taps in the process of their mining operations.[229] A 75-year-old woman who has lived all her life in Mwabulambo told Human Rights Watch:

When the company came in 2007, they cut the pipes of water from the government water supply and left the villagers to drink water from the river. The company promised that they would drill boreholes for us, but they didn’t. I worry about the safety of the [river] water due to the fact that it has remnants of coal from the water from the abandoned mining pits, which bursts at the seams and leaks into the river.[230]

Community members complained repeatedly to the government and company managers and asked for boreholes to replace the taps, but they said that it was not until 2015 that two boreholes were installed. Without access to improved sources for water, many villagers explained that they have used water collected directly from the river for many years, including for drinking, even though they did not think it was safe because of mining. A woman explained: “Before the mining started, we used tap water. But after the company destroyed the pipes my family used river water for drinking for a while.”[231]

The experience of some families in Mwabulambo, who see no alternative but to use river water because their homes are too far from boreholes,runs counter to that of many other Malawians. Most Malawians (86 percent) have access to improved water—i.e., boreholes, shallow wells with a hand pump, protected wells, and tap water—due to efforts made by government and international donor to meet the Millennium Development Goals, a set of anti-poverty goals agreed to by 189 countries in 2000.[232] Some 62 percent use a tube well, boreholes with pumps, or a water point connected to a piped source as their source of drinking water.[233]

The challenges in accessing safe water for household use disproportionately impact women and girls, who are often primarily responsible for getting water for the family. Caregivers, often women, also shoulder a greater burden of care work and bear the responsibility of ensuring that vulnerable individuals—children, older people, and those recovering from surgeries or illnesses—avoid exposure to unsafe water.

In Karonga’s mining communities, women often walk longer distances to access what they believe to be safer, less contaminated water, even if that can mean having to walk more than several kilometers up to five times a day.[234]

The limited number of boreholes in the community means that women often face significant wait times to fill the containers they carry to the water source. A Mwabulambo resident told Human Rights Watch that she has to travel one hour round trip to the borehole and back. As a result, her family sometimes uses water from the closest river, including to drink. She said:

The river is pretty far from my house, but the advantage is that there is no waiting line for the water there.… When we started drinking the river water, it was ok. But the coal changed the color of the water. Fishermen also complained. The water eventually turned black.[235]

Traveling long distances or waiting in line to collect water can expose women and girls to danger and leaves them with less time to attend school, earn money, or simply to rest. Having to walk long distances can also have a distinct impact on older women, pregnant women, or women with physical disabilities. A 75-year-old woman in Mwabulambo told Human Rights Watch:

As an old woman I find it very difficult to walk to the river all the time. My husband is very old and needs me to bring him water for bathing, my three grandchildren are at school during the day, so the situation is difficult for me. I go to the river three times a day. In the morning I collect water for my husband to bathe. Then mid-morning I go and collect water for drinking, and then midday I go and collect water for cooking.[236]

Community Health Concerns

My husband … would spit black saliva when he returned from work. He eventually got really sick. He has difficulty breathing and his heart is weak…. The doctors told him not to work because of his illness. He can’t help me with the household, so I am responsible for everything.

—Lucia K., Kayelekera, 41, who lives in a household of 13 people, March 2016

In Karonga district, many community members whom Human Rights Watch interviewed reported illnesses, including respiratory diseases, gastrointestinal illnesses, and skin problems that they believe might be related to coal or uranium mining due to the prevalence in the community since the mining started.[237]

The absence of regular environmental monitoring and limited access to healthcare make it difficult to attribute specific diseases to the impacts of mining operations on the environment. However, it is important to recognize that environmental health studies in other countries have shown that mining increases the health risks for people living in areas near mining operations.[238]

In Kayelekera, the dirt road to the coal mining and uranium mining sites passes by several mud and stone houses, tucked away behind hills and trees, and the primary school with five classrooms. Community members interviewed by Human Rights Watch complained about the dust blowing up from the mining trucks on the road and reported increasing prevalence of bad coughs and asthma in their community.[239] A 34-year-old woman who lives with her husband and five children in a house by the road to Paladin told Human Rights Watch:

One of the big problems with the primary school is the dust from the road [used by trucks from Paladin and Malcoal]. I have two of my children there and they cough a lot. We had written to Mr. Jere [manager of Malcoal] and they started using another road. But then this year’s rainy season made the other road impassable and they started using the old road again that passes directly by the primary school.[240]

High dust volumes alongside the dirt road and from coal trucks also created problems for the community in Mwabulambo. Residents said that he Eland coal mine produced 15 truckloads of coal per day when it was still operational. “They went in and out the whole day, covering the road, our houses and our fields with dust,” said a woman from Mwabulambo.[241]

Community members in Mwabulambo also complained about an increased prevalence of illnesses that they suspect might be related to drinking polluted water.[242] As part of a country-wide program, a health worker employed by the government comes to the community several times a year to distribute vitamins for children. He thinks that children in particular are at risk of contracting mining-related diseases because they bathe and drink water from the rivers and are specifically vulnerable to water-borne diseases or toxic substances that might be in the water. He also observed that many children have skin rashes. “They look like chicken pox, but it is something else. Some of them are from the sun, for others I don’t know. Small children here are coughing a lot.”[243]

Caregivers—most often women—of children, older people, and people with disabilities told Human Rights Watch that health risks in their communities made their care work more burdensome and time-consuming and increased their worry about loved ones.

One woman explained that she takes care of her husband and her child who have both fallen sick with asthma and need additional care.[244]

Another woman who lives in Kayelekera told Human Rights Watch that her husband became ill with a bad cough when he worked at the coal mine. In order to sustain her family of 13 she sells vitumbuwa, traditional Malawian donuts, at the local market. When she is not at the market, she needs to take care of the fields where she grows maize, sorghum, groundnuts, and cassava. “I am responsible for everything,” she said. “If I get sick, my children have to take care of the house. They can’t go to school then.”[245]

Impacts on Food and Livelihoods

Since the mining came we have had many problems. The coal is in our gardens and running into our fields. The way the crops look, you would think that someone had poured petrol on them.[246]

—Resident of Mwabulambo, Mwabulambo, March 2016

Community members voiced concern that mining is damaging their food and livelihoods.

Some villagers at Mwabulambo said they had noticed a significant decrease in the productivity of their fields. They believe this is related to the fact that Eland uses coal to patch up potholes on the road, which then would wash into their land during the rainy season. A 58-year-old widow, mother of 12 children, said:

The produce is not the same any more. The coal is all over the fields. Where I am staying now the fields are very close from the mine. The coal mine is uphill and enters into the field with the rains. When the coal flows into the fields the rice and maize look like they burnt. The crops don’t grow well.[247]

One of the traditional leaders in Mwabulambo said the mining company also damaged the culverts, tunnels that allowed the water to pass under the road from the rice fields.[248] As a result, the irrigation system for the rice fields is not functioning properly, adversely affecting rice production. A member of the village mining committee, a group of villagers who represent the community vis-à-vis the company and government, also said that the mining company cut down trees, reducing the amount of firewood available to the community.[249]

Changing weather conditions and water pollution may also be contributing to less productive harvests.[250] One community member said:

We grow rice and maize here, but it has become more difficult to do so with the poor rains in recent years. Last year we had 32 bags of rice, this year only 8. We think that the bad rice harvest also has to do with the contamination of the water.[251]

Danny Simbeye, who works with a local civil society organization in Karonga, thinks that climate change also contributes to the water scarcity. “Now, animals, and women they are fighting for water so it's a big problem,” he said.^[252] Fear of environmental pollution has caused some people to change their diet and spend additional money buying food. One 36-year-old woman from Mwabulambo said: “I don’t eat fish anymore because I am afraid. We used to eat a lot of fish from the river. Now we have to buy usipa [regional type of fish] from the lake.”[253]

As farmers and caregivers, women in Malawi are often particularly impacted by food shortages and decreased crop productivity, which makes them work even longer hours and worry about producing enough to sustain their family. A 75-year-old woman in Mwabulambo recalled:

I had six acres of land. But because the coal mine had spread some coal on the road to make the road better for their trucks, during the rainy season the coal seeps into my gardens and this has negatively affected my [fruit] crop output…. Why did you destroy our land? They left us behind with nothing. We are suffering from hunger.[254]

After Mine Closure

Regarding environmental protection after mine closure and rehabilitation, the MMA requires a mining license applicant to submit a proposal for “the progressive reclamation and rehabilitation of land disturbed by mining and for the minimization of the effects of mining on surface water and ground water and on adjoining or neighboring lands.” However, enforcement of this provision is at the discretion of the government.[255]

In Mwabulambo, locals said they were not informed about plans to close the mine before the closure in 2015, including how the company intended to mitigate risks stemming from the abandoned mining site.The company left behind several open pits, piles of coal, and deep holes filled with water that were not adequately protected. One woman who lives in the community said: “I believe they left last year … but they didn’t even say goodbye. When we realized they are leaving we told them to clean up. But until this day they have not cleaned up the area.”[256]

With the departure of the mining company people are also worried that the pipes to the seven boreholes would never be replaced. A 58-year-old widow and mother of 12 children in Mwabulambo said: “Before the company leaves they need to do something for us. They broke our pipes and left us without tap water.”[257]

Mining byproducts are capable of contaminating water sources long after a mine closes and need to be managed to prevent future contamination. There are indications that mining waste in Mwabulambo may not have been properly managed by Eland coal mine since it stopped operations in 2015. In particular, the mining company failed to install adequate dams to prevent coal and mining waste from entering the local water sources during its operation, and these contaminants are still threatening the community in Mwabulambo.[258] Without an environmentally and socially conscious closure and rehabilitation plan, mines threaten further chemical leakage into water supplies either from breaches of storage or from further oxidation and acid runoff from exposed rocks.[259]

According to the Ministry of Agriculture, Irrigation and Water government water testing results from 2015 indicated that the water in the open pits is acidic and therefore harmful for human health.[260] During a Human Rights Watch visit in August 2016 children were swimming in the open pits filled with water.

Government officials from the Ministry of Natural Resources, Energy and Mining said that the failure of the Eland coal mine to rehabilitate the area after mine closure violated Malawi’s legal regime for mining.[261]The government noted that “the Operator did not adhere to the mine closure and abandonment plans. Worse still, they did not even bother to inform the regulatory Institution (the responsible Ministry [of Natural Resources, Energy and Mining]) of their plan to abandon the site and subsequenttermination of the mining activities.”[262] Ministry officials further indicated that after their monitoring visit in May 2016, the government sent an official letter to the operator asking them to ensure that they follow the applicable laws before leaving the site permanently, including “filling the pits or putting fences around them for safety purposes”.

However, government officials said that the operator of Eland coal mine has not responded to their request.

IV. Reform Efforts

Malawi is poised to enact a revised law to govern mining. In August 2015, the latest draft for a new Mines and Minerals Bill (MM Bill) was forwarded by the Ministry of Natural Resources, Energy and Mining to the Ministry of Justice for finalization after a consultation period with civil society. The government announced plans to table the bill in Parliament in March, July, and November 2016. However, its adoption looks likely to be delayed until 2017 as civil society and lawmakers have raised concerns about the bill’s content.[263]

While remarkably progressive in some respects, the MM Bill fails to address the some of the core problems described in this report, most importantly the lack of transparency. One of its major weaknesses is a provision that acts to essentially prevent communities from accessing information about the risks related to mining. Section 38 (4), which deals with submission and ownership of mining-related information, contains a restrictive confidentiality provision.[264] It presumes that “any information submitted by a mineral tenement” to the government is confidential until after the license expires and does not provide any relevant exceptions, even in situations where the director and the holder of the mineral right provide consent. Section 233 of the MM Bill addresses inspection results and reports produced by the government.[265] It is unclear whether inspection reports carried out by the government could be made available to communities or workers.

The government has been working on revising other related regulation including the land laws, petroleum law, and the Environmental Management Act (EMA). The government also announced that they are planning to develop a policy drawing on international best practices in the oil and gas sector and then work to revise the 1983 Petroleum (Exploration and Production) Act.[266] However, the timeline for the development and adoption of these laws and policies remains unclear. Recent pressure from various civil society organizations urging the Malawian government to review the 33-year-old law have been met with silence.[267]

At the same time, as Malawi revises the legal regime for extractive industries, it is also preparing and negotiating an Access to Information Bill (ATI Bill), which may impact the mining sector in terms of information disclosure and transparency. The ATI Bill and the type of information to be made available and accessible to the public have been the subject of intense debate within and between the Malawi Parliament, executive branch, and civil society over the course of many years.[268] Even though the November 2015 draft of the bill appeared to be acceptable to most stakeholders, the government revised the bill again in February 2016. In its most recent form, the ATI Bill does not provide for the establishment of an independent oversight body; compromises the principle of maximum disclosure by avoiding retroactive application; and gives the minister of information the power to determine “fees payable for processing requests for information.”[269] Members of Parliament have requested more time to review and amend the draft given civil society’s mobilization against this watered-down draft.[270]

Government officials who spoke to Human Rights Watch in March 2016 seemed optimistic that the proposed ATI bill would be adopted by the end of 2016 and would make it easier for communities to access environmental health information.[271] Asked about the changes made by the government to restrict the scope of the ATI bill to exclude information predating the bill, then-Minister of Information Jappie Mhango, said: “We don’t want to open a lot of books. Every government has something to hide, and applying the law retroactively would create a lot of problems.”[272]

In an interview with Human Rights Watch, the former minister also said that their own ministry should act as the oversight body because the Malawi Human Rights Commission, which the previous draft named as the designated oversight body, did not have the capacity to fill that role.[273]

Another major initiative aimed at improving transparency in mining governance is Malawi’s steps to become a compliant country with the Extractive Industries Transparency Initiative (EITI).[274] EITI promotes good governance in resource-rich countries by fostering open public debate about how oil, gas, and mining revenues are used and setting a global standard for the governance of these resources.[275] 51 countries currently implement the EITI and 31 countries are fully compliant with the EITI requirements. Malawi was admitted as an EITI member candidate in October 2015 and is currently undergoing a validation process within two and a half years of admittance. After validation, the EITI Board will give final approval of acceptance.[276]

At the regional level Malawi is also aiming toalign its mining policy to the Africa Mining Vision (AMV).[277] The Africa Mining Vision was adopted by Heads of State at the February 2009 AU summit and has been presented as “Africa’s own response to tackling the paradox of great mineral wealth existing side by side with pervasive poverty.”[278] It contains a roadmap to “transparent, equitable and optimal exploitation of mineral resources” to support sustainable growth and socio-economic development in Africa.[279]

V. Government and Company Response

Malawi’s government has acknowledged the impact that mining can have on the health and livelihoods of nearby communities.[280] The minister of health said that their ministry was not proactive regarding health monitoring in mining areas.^[281] Government officials at the Ministry of Natural Resources, Energy and Mining were also aware of the weaknesses of the regulatory system and said that authorities sometimes fail to adequately protect environmental health and monitor pollution, creating health risks for communities.^[282] Specifically, ministry officials admitted that, while inspections are carried out for occupational health and safety issues for workers, the government has failed to monitor health impacts of mining on nearby communities.^[283]

Ministry officials described capacity problems, such as the lack of facilities equipped to perform water testing.^[284] The government also acknowledged that there is a lack of coordination among the different ministries and levels of government to carry out effective monitoring.^[285]

Asked about plans for how to address these challenges, the government said that every mining community should have a health facility for local residents and also committed to including social issues in EIA guidelines.^[286] The government further highlighted that the MM Bill contains a provision making community development agreements mandatory for future mining licenses.^[287] In a meeting with Human Rights Watch in March and August 2016, officials at the Ministry of Natural Resources, Energy and Mining further announced intentions to visit each mine once per month and to implement the new communications strategy.[288] Ministry officials also said that they were working with the company in Mwabulambo to set up a rehabilitation plan to ensure the safety of the residents.^[289] However, at time of writing the situation at Eland coal mine site has not changed.

In a letter to Human Rights Watch, Paladin explained that the company maintains safety, health, radiation, and environmental management programs. Paladin also pointed to the company’s Human Rights Policy, highlighting the company’s commitment to respecting human rights. However, in an interview with Human Rights Watch, Paladin Malawi admitted that the company does not disclose monitoring results regarding water testing or other potential environmental impacts. Paladin had yet to reply to Human Rights Watch’s questions regarding the situation in Kayelekera at time of writing.

Malcoal stated in an email to Human Rights Watch that they “strive to help the government to reduce rural poverty by providing employment while at the same time taking care of our communities and the environment”.[290] Malcoal disputed that any resettlements had taken place in Kayelekera but did not comment on any of the other issues raised in this report.

Representatives of Eland informed Human Rights Watch in writing and by phone that the company has suspended operations at Mwabulambo.^[291] They had yet to reply at time of writing to Human Rights Watch’s request for comment on the substantive issues raised in this report.

VI. Regional and International Legal Obligations

Malawi’s government is obliged under international and regional law to protect the rights of people who live in mining communities, including their rights to access information and to water, health and a healthy environment, food, housing, and nondiscrimination.

At the international level, Malawi is a party to core human rights treaties, which provide for the protection of basic civil, political, economic, social, and cultural rights. These include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child (CRC).[292]

At the regional level, Malawi is party to several relevant treaties, including the African (Banjul) Charter on Human and Peoples’ Rights (the African Charter) and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the Maputo Protocol).^[293]

The 2012 Guiding Principles on Extreme Poverty and Human Rights, which are global policy guidelines focused specifically on the human rights of people living in poverty, state that governments “should take into account their international human rights obligations when designing and implementing all policies, including international trade, taxation, fiscal, monetary, environmental and investment policies.”^[294] These guidelines also elaborate:

States have a duty, in accordance with their international obligations, to prevent and protect against human rights abuse committed by non-State actors, including business enterprises, which they are in a position to regulate. Where transnational corporations are involved, all relevant States should cooperate to ensure that businesses respect human rights abroad, including the human rights of persons and communities living in poverty.^[295]

Right of Access to Information

Information is a prerequisite for the exercise of various other rights, including the right to the highest attainable standard of physical and mental health, the right to food, the right to safe drinking water and sanitation, the right to a healthy environment, the right to self-determination, and the right to life.

The right of access to information is enshrined in international and regional instruments.

The UN Human Rights Committee’s General Comment 34 expressly articulates a right for citizen access to information held by public bodies as such access relates to Article 19 of the ICCPR.^[296]The Human Rights Committee stated that in order to “give effect to the right of access to information, States parties should proactively put in the public domain government information of public interest,” ensuring access is easy, prompt, effective, and practical.[297] Malawi is also a party to the African Charter, which, in Article 9, states “every individual shall have the right to receive information” and “every individual shall have the right to express and disseminate his opinions within the law.”[298] The African Commission on Human and Peoples’ Rights has further developed an African Model Law on Access to Information “to give effect to the right of access to information as guaranteed by the African Charter on Human and Peoples’ Rights.”[299]

In 1992, the United Nations Conference on Environment and Development specifically recognized access to environmental information, public participation in decision-making over natural resources, and access to justice as important pillars of sustainable development.

Principle 10 of the 1992 Rio Declaration on Environment and Development emphasizes that “each individual should have appropriate access to information concerning the environment … including information on hazardous materials and activities in their communities.”^[300] The 2010 voluntary Bali Guidelines developed the concept further and proposed steps for effective national legislation with regard to access to environmental information.^[301]

The right of access to environmental information is also recognized under international human rights law. As Fatma Zohra Ksentini, special rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, noted as early as 1994: “The right to information includes the right to be informed, even without a specific request, of any matter having a negative or potentially negative impact on the environment.”^[302]

Several UN human rights treaty bodies have further explained the link between access to information and other substantive rights. In its General Comment 15 on the Right to Water, the Committee on Economic, Social and Cultural Rights (CESCR) noted that a core obligation of states under the right to water is that individuals have the right to seek, receive, and impart information concerning water issues.^[303] In General Comment 14 on the Right to Health, the CESCR further stated that a “core obligation” of states is to “provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them.”^[304]

According to the UN Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, a lack of information, particularly as it relates to factors affecting the environment or health, prevents free, active, and meaningful public participation, decision-making.^[305]

Information that is related to the environment or that may have an effect on any individual’s health must be available, accessible, and functional.^[306] In order for information to be available, it must be current, reliable, and generated and collected in a manner that adequately assesses all potential negative impacts on human rights.^[307] In order for information to be accessible, everyone must be able to seek, obtain, receive, and hold available information, subject only to an overriding, legitimate public-interest justification for non-disclosure, discussed further below.^[308]

In order for information to be functional it must be fit for its intended use, which, in the case of hazardous substances, is to prevent harm, to enable informed decision-making, and to ensure accountability, access to justice, and an effective remedy. In addition, the information must be scientifically accessible, meaning that where information is highly technical, it must be translated into a language that will enable individuals to understand the information so that they may make informed choices.^[309]

The African Commission on Human and People’s Rights has also interpreted the African Charter to protect the right of access to environment information.^[310]Specifically, the commission found in 2001 that governments have the following obligations: to order or at least permit independent scientific monitoring of threatened environments; to publicize environmental and social impact studies prior to any major industrial development; to undertake appropriate monitoring; to provide information to those communities that were exposed to hazardous materials and activities; and to provide meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.^[311]

The African Ministerial Conference on the Environment and regional bodies have also repeatedly recognized the importance of access to information in environmental decision-making.^[312]

Right to Water

The human right to water entitles everyone, without discrimination, “to have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use.”^[313] Various resolutions from the UN General Assembly and Human Rights Council affirm that the human right to safe drinking water is derived from the right to an adequate standard of living.^[314] The right to an adequate standard of living is enshrined in human rights instruments ratified by Malawi, such as the ICESCR, CEDAW, and the CRC. The Maputo Protocol explicitly references the government’s obligation to “provide women with access to clean drinking water.”^[315]

The CESCR, in General Comment 15 on the Right to Water, noted that an aspect of the core content of the right to water is that water required for personal or domestic use must be safe. This means it must be free from microbes and parasites, chemical substances, and radiological hazards that constitute a threat to a person’s health.^[316]

The special rapporteur on water and sanitation has stated in the context of service provision by non-state actors: “Given that intrinsic link to the fulfilment of human rights, exercising due diligence to become aware of and address potential negative impacts is particularly important.”^[317] She continues:

To meet [their] responsibility, service providers should take certain measures, such as ensuring that the water they provide is of safe quality, ensuring the regularity of supply, not discriminating in their operations, adopting fair procedures in cases of disconnections due to non-payment and refraining from disconnections when people are unable to pay and the disconnection would leave them without access to minimum essential levels of water.^[318]

Right to Health and Right to a Healthy Environment

The right to highest attainable standard of health is found in Article 25 of the Universal Declaration of Human Rights (UDHR) and in international and regional treaties binding upon Malawi, including the ICESCR and the CRC.^[319]

The CESCR, in its General Comment 14 on the Right to Health, has interpreted the ICESCR to include:

[T]he requirement to ensure an adequate supply of safe and potable water and basic sanitation [and] the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health.^[320]

The Committee on the Rights of the Child, in its General Comment 15 on children’s right to health, asserts:

States should regulate and monitor the environmental impact of business activities that may compromise children's right to health, food security and access to safe drinking water and to sanitation.^[321]

The Maputo Protocol specifically obliges governments to “provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas.”^[322]

It is well established that the right to health encompasses the right to healthy natural environments.^[323] Article 12 of the ICESCR obliges states parties to improve "all aspects of environmental and industrial hygiene" in order to prevent, treat, and control "epidemic, endemic, occupational and other diseases." The CESCR has clarified that this right imposes on states "the requirement to ensure an adequate supply of safe and potable water and basic sanitation; the prevention and reduction of the population's exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health."^[324]

Relevant regional human rights instruments—such as the African Charter, and its Additional Protocol on the Rights of Women—also recognize a right to a healthy environment.^[325] The Maputo Protocol stipulates that states parties shall take all appropriate measures to “ensure greater participation of women in the planning, management and preservation of the environment and the sustainable use of natural resources at all levels.”

Right to Food

The right to adequate food is enshrined in international and regional instruments. Pursuant to Article 11(1) of the ICESCR, states parties pledge to use available resources to progressively realize "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions." As with all socioeconomic rights, theright to adequate foodwill have to be pursued in a non-discriminatory manner. The Maputo Protocol specifically requires that states parties provide “women with access to clean drinking water, sources of domestic fuel, land, and the means of producing nutritious food.”

Right to Housing

The right to housing is enshrined in Article 25 of the UDHR, as a part of the right to an adequate standard of living, and in international and regional treaties binding upon Malawi.^[326] Article 19 of the Maputo Protocol also promotes women’s access to and control over productive resources such as land and guarantees their right to property.

The CESCR, in its General Comment 4 on the Right to Adequate Housing, has interpreted the right to include:

[C]ertain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency.^[327]

International human rights law recognizes that evictions are legitimate in some circumstances but prohibits resort to forced evictions. Under international law a “forced eviction” is the permanent or temporary removal against the will of individuals, families, or communities from the homes or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.^[328] Governments are prohibited from conducting forced evictions themselves, and are obligated to ensure through law and regulation that other parties do not carry out forced evictions. These obligations apply regardless of whether residents are legally entitled to reside on the land they occupy.

The UN Basic Principles and Guidelines on Development-Based Evictions and Displacement, drafted by the UN expert on housing rights, set out the human rights framework under which states may, in exceptional circumstances, resort to involuntary resettlements.^[329]

Any such involuntary resettlement must be properly provided for in, and comply with, domestic law as well as be in compliance with international human rights law. Those subject to involuntary resettlement should not suffer regression in the enjoyment of their rights due to the resettlement, nor bear any undue burden that undermines their right to maintain and improve a standard of living that is equal or better to the one they previously enjoyed.^[330]

Those subject to involuntary resettlements “have the right to relevant information, full consultation and participation throughout the entire process,” as well as to just compensation in accordance with human rights standards. Compensation should cover both material losses and lost opportunities including employment, business losses, lost crops, livestock, and lost income. Where resettled people have lost land, the guidelines clearly state:

Cash compensation should under no circumstances replace real compensation in the form of land and common property resources. Where land has been taken, the evicted should be compensated with land commensurate in quality, size and value, or better.^[331]

The guidelines also provide special protections to women, children, and marginalized members of society and call for states to give special assistance to these groups when carrying out development projects.^[332]

Right to Nondiscrimination

Core international and regional human rights treatiesexpresslyprohibitdiscrimination, and require the parties to these conventionstotakemeasures to eradicate all forms of discrimination against individuals.

The CESCR, in General Comment 20 on non-discrimination in economic, social, and cultural rights, recommended that states parties adopt “specific legislation that prohibits discrimination in the field of economic, social and cultural rights. Such laws should aim at eliminating formal and substantive discrimination, attribute obligations to public and private actors and cover the prohibited grounds discussed above. Other laws should be regularly reviewed and, where necessary, amended in order to ensure that they do not discriminate or lead to discrimination, whether formally or substantively, in relation to the exercise and enjoyment of Covenant rights.”^[333]

Corporate Responsibility to Respect Human Rights

In 2008, then-Special Representative of the UN Secretary-General on Business and Human Rights John Ruggie elaborated the “Protect, Respect and Remedy” framework for business and human rights, which were further supplemented by a set of “Guiding Principles on Business and Human Rights” (Guiding Principles) endorsed by the United Nations Human Rights Council in 2011.^[334] The Guiding Principles set out 1) the state’s duty to protect human rights, 2) the corporate responsibility to respect human rights, and 3) the need for a remedy for victims of business-related human rights abuses.^[335] The Guiding Principles detail basic steps companies should take to respect human rights, including conducting due diligence to avoid causing or contributing to human rights abuses through their operations; avoiding complicity in abuses; and taking steps to mitigate them if they occur.

Ruggie’s framework outlines integral components of human rights due diligence that businesses should undertake, including assessment of potential human rights impacts with explicit reference to internationally-recognized human rights; integration of respect for human rights throughout the company; and monitoring as well as communicating performance.^[336]

VII. Recommendations

To the Government of Malawi

• Amend the draft Mines and Minerals Bill to include provisions that ensure robust environmental health monitoring at all stages of the mining process. In particular, amend the bill to require that impact assessments and regular inspections detail the potential impacts that exploration, active mining, and abandoned mines may have on affected communities and their rights; steps the government and companies will take to continually inform and communicate with affected communities; and ways in which adverse rights impacts will be mitigated or avoided. Include a provision to require that impacts on marginalized populations such as women and children are specifically monitored and addressed.
• Amend the draft Mines and Minerals Bill to ensure it has provisions that guarantee access to information. In particular, replace any provisions that limit access to mining-related information and ensure that communities receive information on all adverse environmental and social impacts. Include provisions to ensure that environmental impact assessments, environmental monitoring reports, and resettlement plans are easily available and accessible to the public.
• Revise the draft Access to Information Bill to ensure that minimum requirements for access to information follow international best practices and are in line with the model law by the African Union.
• Develop, through broad consultation, a policy for corporate social responsibility in the extractive industry that meets the international human rights standards laid out in the “Protect, Respect, and Remedy” framework. Make a strong human rights due diligence procedure a legal requirement for all companies extracting minerals in Malawi and monitor company compliance.
• Ensure coordination between different ministries and national, regional and district government bodies involved in mining governance and oversight. Provide written information to government officials about the different responsibilities with regard to mining, making clear who bears each responsibility. Hold regular coordination meetings across ministries and government levels to ensure that information is exchanged and disseminated to community members. Consider creating positions for district mining officers who can communicate and coordinate at the local level.
• Participate in partnerships and informational exchanges with other governments and institutions with relevant experience in ensuring human rights safeguards in managing natural resource booms, including institutions able to provide independent monitoring.

To the Ministry of Natural Resources, Energy and Mining

• Ensure that impact assessments and regular inspections contain relevant details, including: the potential impacts that exploration, active mining, and abandoned mines may have on communities and their rights; steps the government and companies will take to continually inform and communicate with affected communities; and ways in which adverse impacts will be mitigated or avoided.
• Ensure impacts on marginalized populations, such as women and children, are monitored and addressed. Such monitoring should cover the cumulative impacts on the environment and livelihoods, including impacts resulting from extractive industries, social changes, and climate change.
• Regularly communicate environmental information to affected communities and detail the potential impacts that exploration, active mining and abandoned mines may have on affected communities and their rights; steps the government and companies will take to continually inform and communicate with affected communities; and ways in which adverse impacts will be mitigated or avoided.
• Ensure that outcomes of environmental assessments, periodic environmental monitoring reports, resettlement action plans, and updates on implementation are easily and readily accessible and include short summaries in non-technical language. Summaries and full reports should be translated into local languages, available on the internet, posted in public buildings, including at sub-county headquarters and local schools in directly affected communities. Government authorities should not only make the information accessible upon request, but also proactively disseminate information that is relevant to the protection of rights of affected communities.
• Require companies that prepare environmental impact assessments, environmental monitoring reports, and resettlement plans to make them easily available and accessible to the public, including to women and other marginalized groups.
• Amend the draft Communications Strategy for Malawi’s Mineral Sector to ensure that mining communities receive regular and updated information about the results of environmental monitoring.
• Promptly fill all vacancies for inspectors at the Ministry of Mining and at the district level including the vacant district environmental officer position in Karonga district.
• Increase the number and capacity of trained staff to analyze environmental impact assessments (including resettlement action plans), monitor compliance reports, and form inspection teams to verify that companies adhere fully to their commitments. Empower and instruct ministry staff to carry out more thorough and proactive monitoring and oversight of existing mining projects, including by providing the staff and other resources necessary to fulfill this role effectively.
• Approve proposed extractive industries projects only after duly assessing human rights and environmental risks, particularly in areas such as land and labor rights.
• Identify measures to avoid or mitigate risks of adverse impacts.
• Implement mechanisms that enable continual analysis of developing human rights and environmental risks and that ensure adequate supervision.

To the Ministry of Lands, Housing and Urban Development

• Provide a process for fair compensation and remedy negative human rights impacts of relocation in mining communities including the payment of compensation for losses that have already occurred. Pay special attention to impacts on women and ensure they are appropriately compensated for their losses.
• Develop a national resettlement policy in line with international human rights standards. In the meantime, international best practice should guide displacement, resettlement, and compensation and be used as a basis for educating communities in negotiating resettlement arrangements.
• Ensure regular, broad, and meaningful public consultation and participation at all stages of resettlement, including through meaningful consultation in the design, implementation, and post-move phases of resettlement.
• Promote women’s equal rights and access to land in rural areas including joint registration of customary land. Ensure that women are appointed to land committees in accordance with the Customary Land Bill and support their meaningful participation on an equal basis with men.

To the Ministry of Health

• Actively monitor health indicators and disease patterns in mining communities and ensure that results are easily available and accessible to the public.
• Develop a national strategy to improve health in mining communities and increase access to healthcare in mining areas, taking into account the increased health risks for marginalized populations. Include in the strategy measures to support family caregivers, especially women.
• Ensure that commitments by extractive industries to build additional health facilities in mining communities are implemented.
• Devise a comprehensive public health strategy to tackle the health problems of residents in mining communities.

To the Ministry of Information

• Increase mining communities’ knowledge of the impacts of mining on community health and global climate change.

To the Ministry of Agriculture,Irrigation and Water Development

• Map out the boundaries of watersheds potentially impacted by mining operations and actively monitor water throughout watersheds under the influence of mining to identify potential contamination, including monitoring waste water discharges, ground and surface water sources, and drinking water in mining communities on an ongoing basis. Ensure that results are easily available and accessible to the public.

• Actively monitor boreholes, shallow wells, and rivers in mining communities on an ongoing basis and ensure that results are easily available and accessible to the public.

• Monitor fisheries within mining-affected watersheds for unsafe levels of heavy metal contamination. 

To the Ministry of Justice

• Work with the Ministry of Information to ensure that the draft Access to Information Bill follows international best practices and are in line with the model law by the African Union.

To the Ministry of Gender

• Work with Ministry of Mining to ensure that impacts of mining on marginalized populations such as women and children are specifically monitored and addressed.

• Work with Ministry of Mining to implement dedicated measures that facilitate access to information about mining for groups that may face specific impacts or that are marginalized, such as women, children, older people, people with disabilities, and minorities.

• Work with Ministry of Mining to ensure regular, broad, and meaningful consultation with, and participation of, women in affected communities with respect to large extractive industries projects.

To the Mzuzu Regional Office of Mines and to the Karonga District Commissioner

• Ensure that environmental monitoring reports are easily available and accessible to the public in northern region, including by providing short summaries in non-technical language; translating the summaries and the full reports into local languages; posting them online; providing copies in public buildings such as local schools; and holding information sessions in directly affected communities. Implement dedicated measures that facilitate access for groups that may face specific impacts or that are marginalized, such as women, children, older people with disabilities, and minorities.

To the Water Department in Karonga

• Ensure that water testing reports are easily available and accessible to the public in Karonga district, including by providing short summaries in non-technical language; translating the summaries and the full reports into local languages; posting them on the internet; providing copies in public buildings such as local schools; and holding information sessions in directly affected communities. Implement dedicated measures that facilitate access for groups that may face specific impacts or that are marginalized, such as women, children, older people, people with disabilities, and minorities. 

To the Parliament of Malawi

• Work with the government to ensure that the draft Mines and Minerals Bill provides robust environmental and health monitoring in the extractive industries.
• Work with the government to ensure that the draft Access to Information Bill includes minimum requirements for access to information that follow international best practices and are in line with the model law by the African Union.

To Companies Extracting Minerals in Malawi

• Improve public access to information and be more transparent by strengthening communication with local and national civil society and with affected community members. Make information available to both literate and non-literate community members. Outcomes of environmental assessments, periodic environmental monitoring reports, resettlement action plans, and updates on implementation should be easily accessible and include short summaries in non-technical language. Summaries and full reports should be translated into local languages, made available online, and posted in public buildings, including at sub-county headquarters and local schools in directly affected communities of Malawi.
• Establish a thorough due diligence process, including regular monitoring, to ensure that the rights of affected communities. Monitors should be independent and the results of monitoring should be published. If there are reports of human rights violations companies should specifically investigate these reports. The due diligence, process should also include procedures to address adverse human rights impacts.
• Provide a process for fair compensation and remedy negative human rights impacts of relocation in mining communities, including the payment of compensation for losses that have already occurred. Pay special attention to impacts on women, and ensure they are appropriately compensated for their losses.
• Establish effective grievance mechanisms—in line with good international practice—so that individuals affected by mining projects can complain directly to companies in addition to the government.

To the Governments of Australia, Cyprus, and Other Home Governments of Mining Firms Operating in Malawi

• Take steps to regulate and monitor the human rights conduct of domestic companies operating abroad, such as requiring companies to carry out and publicly report on human rights due diligence activity.

To UNESCO

• Work with the government of Malawi to ensure robust environmental and health monitoring in the extractive industries, including at the UNESCO world heritage site at Lake Malawi.
• Work with extractive industries operating within or in the vicinity of the world heritage site to minimize the impacts of its operations on the world heritage site.

To the Donor Community

• Work with the government of Malawi to ensure robust environmental and health monitoring in the extractive industries. Support the government to ensure that environmental impact assessments, environmental monitoring reports, and resettlement plans are easily available and accessible to the public.

Acknowledgments

This report was researched and written by Katharina Rall, researcher in the Health and Human Rights division, with research support from Joe Amon, former director of the Health and Human Rights Division, Babatunde Olugboji, deputy program director, and a consultant to the Women’s Rights Division of Human Rights Watch.

It was edited by Diederik Lohman, director of the Health and Human Rights Division, and Danielle Haas, senior editor in the program office. The report was reviewed by Janet Walsh, deputy director; Juliana Nnoko-Mewanu, researcher on women and land; and Amanda Klasing, senior researcher in the Women’s Rights Division; Arvind Ganesan, director of the Business and Human Rights Division; Dewa Mavhinga, senior researcher; and Felix Horne, senior researcher in the Africa division; and Margaret Wurth, researcher in the Children’s Rights Division. Aisling Reidy, senior legal advisor; and Babatunde Olugboji, deputy program director, provided legal and program reviews.

Meg Msyczo and Matthew Parsons, associates in the Health and Human Rights division, provided production assistance and support. Layout and production were undertaken by Grace Choi, publications director; Olivia Hunter, photo and publications associate; and Fitzroy Hepkins, production manager. Farah Alhaddad, Brooke Guven, Jennifer Glaudemans, Oliver Mendelin, Camryn Pearson, and Katherine D’Onfro, interns in the Health and Human Rights division, provided research assistance.

We would like to thank all the Malawian organizations and individuals that provided invaluable assistance in compiling information for this report, notably the members of the Natural Resources Justice Network.

We are also grateful for very helpful advice and comments from Ramin Pejan, staff attorney at Earthjustice, USA; Michael Karanicolas, senior legal officer at the Center for Law and Democracy, Canada; Tracy Lynn Hubby, professor at the University of Witswatersrand, South Africa; Hanri Mostert, professor at the University of Cape Town, South Africa; and Claret Vargas of DeJusticia, Colombia.

Most of all, we would like to thank the community members and women in Karonga who generously shared their stories.