By The Rwandan Analyst
Since soon a decade Rwanda has proceeded to expropriations of private lands in favor of potential real estate moguls and for urbanization imperatives banning slums accused of having unlawfully erected those makeshift shacks. The expropriation law provides procedures to protect the rights of property owners in the expropriation process. The implementation of that law, however, has caused concerns about potential human rights violations and about how expropriation is affecting the population both economically and socially. This research, carried out from October 2014 – August 2015, showed that expropriated households faced severe declines in their monthly income, and sometimes faced months of restrictions on being able to make basic improvements to their properties while expropriations were pending. Despite these issues, however, government did manage to notify most landowners being expropriated of the expropriation process through public meetings, and in fact most expropriated households believed the projects causing expropriation were in the best interests of the community. Insufficient and delayed compensation were the most pressing issues reported by both government stakeholders and expropriated households, suggesting the possibility for collaborative efforts to decrease delays. Arbitrary variations in property values were also shown, which could be addressed by improving the independence of the valuation process. Compensation-related issues also have a negative impact on expropriated individuals, especially those losing a large percentage of their property or relocating.
I.Factual Context: Bannyahe;Kangondo;Kiyovu, Nyarutarama and Kibagabaga.
The City of Kigali (CoK) has scheduled to October the relocation of residents living in the disputed Kangondo and Kibiraro slum in Nyarutarama neighborhood – Gasabo district despite controversies. Kangondo I&II and Kibiraro commonly known as “Bannyahe” is a slum located in Remera sector adjacent to Kigali’s posh residential areas of Nyarutarama and Kibagabaga. Most of the residents of Bannyahe shifted to the area over 10 years ago after being expropriated from the former Kiyovu in the Heart of Kigali city. Slowly and over time, residents profited the loopholes in the land administrative systems and laws to invest in constructing brick and tile houses while others built shanty homes.
It’s until 2018, that the Gasabo district in Kigali City awoke to this situation and said that they had to evacuate them to pave way for developmental activities, and prevent disaster related incidents. However the proposal was received with controversial divide, as only 79, of the over 1200 home owners agreed to the proposition, and the majority led by Jean de Dieu Shikama sought to battle the issue in court. From July 2018, they battled a court case in Gasabo Intermediate Court in Rusororo with the break-away group demanding Gasabo district authorities to expropriate them in monetary terms. However, the district contended on relocating them to new houses in Busanza estates, in Kicukiro district.
The Busanza housing project comprises of over 1,000 units, now above 20% level is being undertaken by Savannah Creek Development Company for residents of the slum area. Newly elected CoK vice Mayor in- charge of settlement and Infrastructure, Dr. Ernest Nsabimana said government is aware of the residents’ concern in this matter, adding however, that “it would be shameful to overlook the housing status in the image of the city.”“With no doubt, the first batch of over 360 residents of Kangondo I&II will be shifted to the new houses by October 2019. We cannot sit back in front of a situation of a high risk zone,” Nsabimana said.
The beneficiaries however, have mixed reactions. Vedaste Mpakaniye, in his retirement age said he had accepted to shift but when he visited the new location he wants to change his mind.“I found the three roomed houses were far too small with a single toilet, and no cooking area compared to where I was living. I wish to change my mind on the agreement,” Mpakaniye said.
For Yotamu Ntivuguruzwa, who agreed to shift, he says that the move by government is appropriate and could improve their socio-economic lifestyle.“It may be hard to start a new life because I had a kiosk business but my wife visited the place and we agreed to shift even if the new house is small,” Ntivuguruzwa said.
On the other hand, the break- away group that had filed an earlier court case, said that they are not backing down.This CoK announcement has not been received with both hands for the breakaway group leader Jean de Dieu Shikama who told this reporter they are going to court again. “The fact on ground is we are going to file another case, this time with a better argument,” Shikama said. In the argument, Shikama revealed that instead of filing a case as a group, all the 1200 claimants will this time be seeking, each, a separate lawyer to represent them.
II. Assessment of violations of law and rights
If people residing in the above areas complain; there must be some rules infringed by the authorities of Kigali City. The present part point out rules applied on property and expropriation on one side and on the other side assesses the extent of their implementation by those authorities.
Various Rwandan legal instruments regulate the issue of expropriation for public interest
The constitution of 04 June 2003 and its different amendments confirmed explicitly or implicitly the right to private property and conditions to be dispossessed.
22.214.171.124.Constitution of 04 June 2003
Article 29 Every person has a right to private property, whether personal or owned in association with others. Private property, whether individually or collectively owned, is inviolable. The right to property may not be interfered with except in public interest, in circumstances and procedures determined by law and subject to fair and prior compensation.
Article 30 Private ownership of land and other rights related to land are granted by the State. The law specifies the modalities of acquisition, transfer and use of land.
126.96.36.199.Constitution of 2003 as revised in 2015
As per Article 34, Everyone has the right to private property, whether individually or collectively owned. Private property, whether owned individually or collectively, is inviolable. The right to property shall not be encroached upon except in public interest and in accordance with the provisions of the law.
according to Article 35 of the same text, right to private ownership of land Private ownership of land and other rights related to land are granted by the State. A law determines modalities of concession, transfer and use of land.
Article 5 of the Land Law confirms the right to private ownership of land both for land originally acquired through customary practices or by official title. Article 34 of the law protects private ownership rights, stipulating that “the State recognizes the right to freely own land and shall protect the land owner from being dispossessed of the land whether totally or partially, except in case of expropriation due to public interest.” In this regard, the 2007 Expropriation Law defines the permissible acts of public interest giving rise to the State’s right of expropriation: roads and railway lines; water canals and reservoirs; water sewage and treatment plants; water dams; rainwater canals built alongside roads; waste treatment sites; electric lines; gas and oil pipelines and tanks; communication lines; airports and airfields; motor car parks, train stations and ports; biodiversity, cultural and historical reserved areas; facilities meant for security and national sovereignty; hospitals, health centers, dispensaries and other public health related buildings; schools and other related buildings; government administrative buildings and public institutions; public entertainment playgrounds and buildings; markets; cemeteries; genocide memorial sites; activities to implement land use plans and master plans; valuable minerals and other natural resources in the public domain; basic infrastructure and any other activities aimed at public interest which are not indicated on this list that are approved by an Order of the Minister in charge of expropriation, at his or her own initiative or upon request by other concerned persons
2.2.Critical analysis of the implementation of laws and regulations
2.2.1.Infringement of international law
The Expropriation Law in Rwanda aligns with international law and best practices, which essentially hold that: “fair” or “just” compensation must be paid to both nationals and non-nationals who are expropriated; and States must establish and follow clear and transparent procedures that apply equally to all expropriated individuals. Those procedures should regulate the process of the valuation of land, and also create dispute resolution mechanisms to address complaints over valuation and compensation. In line with these international standards, the 2007 Expropriation Law clarifies the rights of individuals in the process of expropriation, including the valuation and compensation processes. Any individual who is expropriated under the law is entitled to receive “just compensation” for the property lost. The law dictates that the amount of compensation should be established based on “market prices” of the property. Funding for the compensation and for other related costs must be available before taking any steps in the expropriation process and every project must provide in its budget funds to ensure fair compensation of property, including a full inventory of assets of each person to be expropriated.
2.2.2.Public interest determination
The process of determining the “public interest” nature of an expropriation project can be opaque and compromise the integrity of land use planning. The definition of “public interest” in the 2007 law is broad and includes activities related to the implementation of Master Plans as well as general national land management, and does not expressly exclude activities carried out by individuals for profit. International best practices establish that expropriations be limited to a legitimate public purpose, but does grant States broad discretion to determine whether a project is in the public interest. The 2007 Expropriation Law generally follows these international standards by including a list of “public interest” reasons for expropriation. However, vagueness in the application of those stated purposes complicates the public interest determination. Common “public interest” reasons for expropriation projects conveyed by respondents included implementation of Master Plans, projects to build roads, and projects to install electric lines.12 However, the vagueness in implementation of Master Plans, and the catch-all provision in the public interest article means that it is practically impossible to challenge a public interest determination. The issue of whether expropriation for private investment purposes is actually a “public” benefit was frequently raised. Some reports indicated that authorities expropriated people where a project was designed to advance private/investor interests. Because of perceptions of abuse of the public interest determination in expropriations, CSOs support a revision of the “acts of public interest” in order to exclude private interests linked with investment. The amended expropriation law does not address these concerns.
2.2.3. Effect on Property Ownership
All expropriated households lost land, and in some cases, other types of property as well. Over 50% of expropriated households lose annual and perennial crops and trees, and over 30% lose feed for livestock—all productive assets for most rural households (Figure 20). Approximately 21% of households report losing their residences in the expropriation, which is only slightly higher than the percentage of individuals who relocate due to the expropriation, which is reported to be approximately 15% of expropriated households
2.2.4.Effects of delays
In addition to the financial implications of delayed compensation, expropriated households also faced prohibitions on their right to improve their property while the expropriation was pending. While the 2007 law prohibits improvements made to property after the inventory of the land and related improvements and the approval of the just compensation in order to prevent individuals from inflating the compensation owed, the law only prohibits these improvements within the 120-day period (the maximum period for paying compensation after the approval of just compensation), after which the inventory would become outdated and invalid, unless otherwise agreed upon by the parties. After the expiration of the 120 day period, property owners would be allowed to regain their full rights to their land, including making improvements, because the expropriating entities have unreasonably delayed the process. However, in practice this is not the case, because payments are frequently delayed for over a year, and many landowners have been continuously prohibited from improving their properties or planting certain crops. Given that the mean monthly income of expropriated households was just 110,000 RWF, and the median monthly income only 50,000 RWF, these delays in improving property, planting, and cultivating can cause serious ramifications to the livelihoods of these households.
2.2.5.Effects of Inadequate Compensation
Both government entities and CSOs cited concerns about individuals not being able to acquire replacement property with their compensation monies. CSOs tended to attribute this to the compensation being too low, and indeed over 80% of expropriated individuals report their property valuations to be below market value. Some CSOs also identified cases of non-compensation and inadequate compensation, especially in cases of partial expropriations undertaken for infrastructure or imidugudu development. This could be due in part to unresolved policies about the prohibition against subdividing small parcels of land, as found in Article 30 of the 2013 Land Law. Local authorities also signaled a significant issue linked to Article 15 of the Ministerial Order on Land Leases, which seems to exempt government entities from paying for expropriation of land so long as it is less than 5% of the total plot. While many government entities recognized a need to assist expropriated individuals with the costs of relocation, they also noted the lack of a legal requirement to do so. Kigali City officials feared that compensating relocation expenses without a legal mandate to do so would be embezzlement of public funds, and RSSB noted that it should be the responsibility of the government and not the investor. This issue has been addressed in the new expropriation law, which defines “fair compensation” to include payment for “disturbances due to relocation.” When considering the option of resettlement in lieu of cash compensation, some officials praised the Kiyovu/Batsinda project as an example of successful resettlement. However, some residents found their economic opportunities diminished after being moved from the city center to the outskirts of the city. While this particular expropriation project was carried out before the adoption of the 2007 law, it is often cited as a model for using resettlement rather than cash compensation.
III. Ways forward
There is hereby proposed a series recommendations based on the analysis of the findings in the context of international best practices and the recommendations of all respondents, from expropriated households to government stakeholders to interested members of civil society. These recommendations strive to address the issues in particular of low valuation, delayed compensation, and increased transparency, along with a few general recommendations.
3.1 Improve Planning and Valuation Procedures for Expropriation Projects
Much of the data point to a pervasive problem of improper planning, causing artificially low valuations, excessive delays in payment, institutional coordination issues, and undue hardship on the affected population. By improving planning in the expropriation process, many of these issues would be addressed and individual experiences in the expropriation process would be improved. Specific recommendations to improve planning and valuation procedures are: use independent valuers to produce valuations of land to be expropriated; enhance independence and activities of the IRPV; support IRPV in setting and updating annual land survey/prices; improve feasibility studies on expropriation projects, including an assessment of socioeconomic impacts on the affected population; clarify and follow project timelines; improve and streamline the payment procedures; and improve coordination and planning by allocating sufficient project budgets before commencing projects.
3.2 Improve the notice procedures
Giving expropriated households adequate notice of the prospective expropriation affecting their lands is one of the fundamental legal principles of expropriation internationally and nationally. specific recommendations to improve notice procedures are: provide better, more personalized notice to expropriated households.
3.3 Increase Opportunities for Public Participation in the Expropriation Process
Public participation in various forms was shown to have exceedingly positive effects on an individual’s experience in the expropriation process, including through indicators such as satisfaction with valuation process and also belief in the public interest aspect of the project. Specific recommendations to increase opportunities for public participation are: increase consultative nature of land use planning; ensure meaningful consultation with the public at meetings on expropriation; and ensure all owners of jointly held property are involved in every stage of the expropriation process.
3.4 mitigate negative impacts on expropriated households
Expropriated households on average reported fairly significant negative impacts on their lives because of the expropriation, with resettled households and female-headed households reporting even more negative impacts. Expropriated households also reported notable declines in their household monthly income after the expropriation. Some specific aspects of these negative impacts can and should be mitigated by institutions involved in the expropriation process. Specific recommendations to mitigate the negative impacts on expropriated households are: provide compensation for relocation expenses where applicable; reduce unnecessary limitations on individuals being prohibited from improving their lands; shift the narrative about expropriation to reflect its predominantly rural nature; promote alternatives to expropriation, including coordinated rebuilding/improvement of lowcost housing, enhanced focus on imidugudu development, profit-sharing arrangements, grandfathering and allowing time for current owners to come into compliance with master plans; and empower local authorities to put the best interests of the population as the foremost goal.
3.5 Improve Transparency and Accountability in the Expropriation Process
Transparency and accountability in the process of expropriation are essential for improving accuracy of valuation, adherence to timelines, and also minimizing opportunities for corruption. Furthermore, transparency and accountability are cornerstones of fairness in all government processes, and an increased commitment to these principles will greatly improve both adherence to the legal requirements of expropriation, and also the individual’s experience in the expropriation process. Specific recommendations to improve transparency and accountability in the expropriation process are: increase accessibility of appeal/counter-valuation procedures; enhance the capacity of local authorities to participate in the expropriation process; and publicize feasibility studies.
3.6 Carry out legal reforms
Further, specific legal reforms will help to bring the expropriation law and practice into compliance with international standards, and will also reduce the possibility of poor implementation even where the law itself is adequately well-defined. specific recommendations for further legal reforms are: repeal ministerial orders determining reference land prices; repeal the provision allowing non-payment for small takings (ministerial order on land leases); ensure that households affected by road widening under the new law governing roads are compensated for expropriated land; narrow the definition of “public interest” in the expropriation law; and include a clearer definition of institutional roles and responsibilities and coordination in the expropriation law.
The implementation of a policy of expropriation is necessary in Rwanda for the promotion of modern developments that will have positive impacts on Rwanda’s citizens. In general, Rwandans support the government’s development plans and are often supportive of expropriation projects that affect their own lands. However, many expropriated households report being negatively impacted by low valuation of their properties and delayed compensation payments. In Rwanda’s predominantly rural economy, these types of delays can cause extreme hardship on vulnerable groups such as subsistence farmers and female-headed households. Urban dwellers likewise report problematic application of the procedural requirements of the expropriation law. Improved planning and coordination to ensure that expropriation projects are not commenced without proper allocation of funds or preparation for construction or related work will lessen the negative impacts of expropriation on affected households and individuals. Moreover, an increased effort to involve citizens, and in particular expropriated households, at every stage in the process is likely to garner more support for expropriations, and also individual satisfaction with the process overall