Free, Prior and Informed Consent: Why affected mining communities should be involved.
Free, Prior and Informed Consent: Why affected mining communities should be involved
“We were forcefully evicted, police tortured us and we ran for our dear lives.”
This was a comment we got from Hassan Sserwadda, a machine operator in one of the Gold mining sites during a community awareness session conducted by the Africa Freedom of Information Centre (AFIC) in the newly created Kasanda District.
There are many people in Uganda who can relate to Hassan’s story. Forceful evictions have become a common sight in many parts of Uganda. Citizens are and continue to be deprived of the only asset they may probably ever own and their only source of livelihood. A few powerful individuals have taken advantage of their lack of awareness of their rights, to rob them off their land. These individuals are aided by security organs to drive people out in hoards. Those who try to fight back are tortured and their property destroyed. Some have been unfortunate to lose their lives in the process.
Most recently in Mubende District, a High court judge ruled that over 3,000 people were tress passers in “their own land”. The said victims were first evicted from their 323-hectare piece of land covering five villages in 2018 by a one George Kaweesi. This case is just one of the so many cases of forceful eviction in the country.

The discovery of minerals comes with uncertainty for the affected communities. They have been made to believe that minerals belong to the state thus once minerals are discovered, they ‘must’ look for alternative places to live or risk being evicted. Key question we should all ask ourselves is, does discovery of minerals on one’s land deprive him/her of the right to that piece of land?
The existence of a mineral right does not in itself extinguish the rights of a landowner or any other occupier of the land in question. Article 244 of the 1995 Constitution of the Republic of Uganda provides that minerals and mineral ores shall be exploited taking into account the interests of the individual landowners, local governments and the Government.
Neither Government nor individuals own minerals in Uganda. The Mining Act, 2003 is to the effect that, control of all minerals in Uganda is vested in the Government, notwithstanding any right of ownership of the land those minerals are found in. This means that mineral wealth is vested in the state for the benefit of all the citizens of Uganda. Article 244 (2) of the Constitution, therefore, implies that affected persons’ interests should never be set aside; free, prior and informed consent forms these interests.
The right to Free, Prior and Informed Consent (FPIC) is one of the most powerful instruments in protecting communities from devastation caused by the extractive industries projects. Communities have a right to freely give or withhold their consent to a project on their lands prior to its commencement including during mineral exploration. For it to be meaningful, the consent needs to be given free of pressure and manipulation from government or industry (these usually have the potential to exert significant pressure), prior to the beginning of any activity that may impact a community’s environment or social well-being, and must be informed — that is, with sufficient information delivered in a region’s native language so the community can make a proper decision. This means that communities have the right to know what is being proposed, and they have the right to say no.
While these rights are most clearly affirmed in the United Nations Declaration on the Rights of Indigenous Peoples and in the International Labour Organization (ILO) Convention №169 on Indigenous and Tribal Peoples, they stem from existing International Law. States have a duty, and companies have a responsibility under International Law to consult and cooperate with indigenous peoples through their representative institutions in order to obtain their free and informed consent. This is supposed to occur before 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 natural resources.
According to the United Nations Declaration on the Rights of Indigenous Peoples, states must also provide effective mechanisms for just and fair redress for any such activities, and appropriate measures should be taken to mitigate adverse environmental, economic, social, cultural, or spiritual impact.
African regional institutions have also significantly advanced the right to free, prior, and informed consent and do not limit its application to indigenous peoples. In May 2012, the African Commission on Human and Peoples’ Rights (ACHPR) issued a resolution (Resolution on a human rights-based approach on natural resources governance) calling on states to “confirm that all necessary measures must be taken by the State to ensure participation, including the free, prior and informed consent of communities, in decision making related to natural resources governance.”
It further provided that; Respect for human rights in all matters of natural resources exploration, extraction, development and in particular ensure independent social and human rights impact assessments that guarantee free, prior and informed consent; effective remedies; fair compensation; women, indigenous and customary people’s rights; environmental impact assessments; impact on community existence including livelihoods, local governance structures and culture, and ensuring public participation; protection of the individuals in the informal sector; and economic, cultural and social rights.
However, the companies have consistently failed to secure free, prior, and informed consent from the local communities before they started operations on their lands. Central and local governments have failed to insist on this established international standard. Companies have promised communities benefits, including schools, hospitals, boreholes, jobs, scholarships, and money in exchange for their compliance. But often exploration work has continued and communities are yet to see the promised benefits that were supposed to help mitigate current and future loss of land use, livelihood, and other impacts.

Some national laws and constitution’s guarantee a people’s right to free, prior and informed consent like South Africa’s Mineral and Petroleum Resources and Development Act (MPRDA). Based on the above law, the Constitutional Court in October 2018, ruled in favour of affected communities arguing that they had a bigger say in mining decisions. The court noted that: “…to strip someone of their livelihood, then you strip them of their dignity too.”
Although cabinet passed the Minerals and Mining Policy, early in 2019, we are yet to see its actual implementation. The said document seeks to adopt an open policy on information sharing to the public and seek free prior informed consent of landowners, communities and local governments concerning prospecting, exploration, development and exploitation of mineral resources.
It is sometimes contended that compulsory acquisition of property or eminent domain takes precedence over free, prior, and informed consent rights. To the contrary, laws regarding compulsory acquisition must, like all other laws, respect human rights including indigenous peoples’ free, prior, and informed consent rights.
While the obligation to carry out these consultations and prevent works without community consent lies primarily with the Ugandan government, businesses also have the responsibility to respect these and related rights. As the UN Special Rapporteur on the rights of indigenous peoples emphasized, “Companies should conduct due diligence to ensure that their actions will not violate or be complicit in violating indigenous peoples’ rights, identifying and assessing any actual or potential adverse human rights impacts of a resource extraction project.”
The Ugandan government should uphold international standards by reforming its laws to ensure that the free, prior, and informed consent of affected communities is required before exploration operations begin and throughout the life of a project. It should also ensure that companies prepare human rights impact assessments carefully and meaningfully to analyze the consequences of their work.
