by Natalie Bugalski
NB: For background on this piece, please see a previous post on this site here.
In October the World Bank Inspection Panel will submit its report to the Bank’s Board of Directors on the Cambodia Land Management and Administration Project (LMAP). The Panel is investigating whether the design and implementation of LMAP constituted non-compliance with World Bank operational policies on involuntary resettlement and project supervision, and whether harm was suffered as a result of non-compliance.
The Request for Inspection submitted to the Panel in September last year claims that households living around a large lake in central Phnom Penh, known as Boeung Kak, were denied their right to proper adjudication of their land tenure status when the entire area was demarcated as being of “unknown” ownership, a de facto classification used when an area is claimed by the State. At around the same time that the flawed adjudication process was being completed in early 2007, the Cambodian Government leased the area to a private company with links to top echelons of power. The company has since filled in most of the lake and about a third of the residents living on and around the lake have been evicted, without ever having their rights to the land assessed. The approximately 12,000 remaining residents live under threat of eviction and report regular acts of intimidation and threats by local authorities in cahoots with the company.
On a supervision mission in June 2008, the World Bank Task Team was taken to the Boeung Kak area by Government LMAP staff and told that the villages surrounding the lake had not received titles because the area was State land. While lakes are clearly listed as State public property in the 2001 Land Law, the banks of lakes are not, and thus while it is possible that some parts of the surrounding area could be State land for some other reason, there is nothing apparent or evident about such a classification. In fact if one were to make a quick assessment based on the visible character and use of the land, the area would appear to be residential property subject to private claims. Despite this, and the ubiquitous news reports on the leasing of the area and fear of mass evictions, Bank staff did not question the classification or take any action to investigate whether proper legal procedures were followed. Nor did Bank staff raise the potential triggering of the Resettlement Policy Framework (RPF) attached to LMAP since households would lose their interests to the land as a result of the State land classification and thus be more vulnerable to eviction without fair compensation.
Interestingly, the LMAP project appraisal document stated that no eviction, involuntary resettlement or land acquisition was anticipated under the Project but nevertheless, in accordance with new thinking on safeguard policies at the time, an RPF was attached to the credit agreement for the Project. The appendage of the RPF appears to have occurred as an afterthought, perceived as probably superfluous. The RPF was to be triggered, inter alia, in the case of evictions from land classified as State property during the land registration process. The RPF was intended to ensure that people who “may be negatively affected by the Project will be assisted to improve, or at least restore their living standards, income and/or production capacity to pre-project levels.”
The presumption that no evictions would occur in connection to the land registration program, in a country in which land-grabbing and forced evictions were already endemic, deserves closer attention. The rationale behind this thinking was presumably as follows: First, if the adjudication process and classification of land was to occur according to proper procedure and legal provision, anyone with a rightful claim to land would have that right recognized and protected during the adjudication and registration process and would thus have their tenure secured; Secondly, anyone residing on what was to be classified at State land during the process was already “illegal” under the Land Law before LMAP ever began and thus was not negatively affected by the project per se. The former point is at best naïve in the context of Cambodia, where land-grabbing by elites and forced evictions of the poor were in full swing at the time of project design, and the weaknesses in rule of law and the extent of corruption was well known. The latter argument suggests an overly narrow and technical acceptance of responsibility, since LMAP’s aim was to give effect to the Land Law by inter alia formally classifying State land.
A third likely rationale was the existence of a parallel UN-Habitat program initiated at around the same time as LMAP, the Phnom Penh Urban Poverty Reduction (UPR) Project, which aimed to upgrade and strengthen tenure security for low-income informal settlements. However, the UPR Project ended in 2005 before the land registration process was fully underway. And the project only ever aimed to support 150,000 beneficiaries in Phnom Penh. Anyone else living on land claimed by the State was left unprotected.
The Involuntary Resettlement operational policies of the World Bank were evidently conceived in response to displacement that occurred as a result of infrastructure projects and have never been a good fit with land administration and management programs. However, limiting the application of involuntary resettlement safeguard policies to infrastructure projects is too narrow since the World Bank is involved in land administration, management and use planning projects in developing countries around the world. Such projects should be designed with comprehensive resettlement policy and program obligations for developing countries with poor records on land-grabbing that frequently do not have their own legal framework and programs to protect people against forced eviction and resulting homelessness and impoverishment.
The Cambodian case exemplifies how difficult it is to implement a land administration program fairly and in accordance with the law and procedures so long after a conflict that wiped out the pre-existing tenure system. In the years in between, the political patronage system filled the void left by an absence of comprehensive legal and institutional mechanisms and took control of land administration, resulting in an entrenched system of land-grabbing and forced evictions in the name of the State and well-connected elites. This de facto system is very difficult – perhaps impossible – to challenge through programs like LMAP because the incentives to keep the status quo are so high for the powers-that-be.
The result is that land administration programs that are designed for corruption-free environments in which laws prevail and rights are upheld by an independent judiciary, are likely to fail in implementation wherever they pose a challenge to the status quo that benefits powerful and unaccountable groups. In such settings, land adjudication and registration processes can be rolled out smoothly in ‘easy’ areas but must either detour around valuable areas that are sought after by elites or be manipulated to conform to and hence formalize the political patronage system. In Cambodia, LMAP should have been better designed to deal with these ‘difficult’ areas, which would mean tackling some deep-seated political and financial interests – certainly not something the Bank is comfortable with.
The Bank Management’s Response to the Request for Inspection euphemistically alluded to these problems, describing the project as a “risky undertaking in an environment with significant governance challenges.” The Bank Management made some striking admissions about problems with LMAP, describing “significant shortcomings in past Project implementation and supervision.” Specifically, it admitted that “the Project lost focus on some of the key elements of its original design” in that the Information Dissemination and Community Participation Program, and the legal aid support that was to be provided to disadvantaged people under the dispute resolution mechanism were never implemented. Only partial progress was made in the area of State land management. Management also recognized “that attention had shifted towards fiduciary aspects and the issuance of titles, and that it missed opportunities to engage the Government on the dispute resolution mechanisms in the Project and on how to respond to changing circumstances (e.g., the unanticipated exponential growth of land values and resulting land conflicts in Phnom Penh).” The Management further acknowledged that “supervision of safeguards and other social measures should have been more robust” and that, in its view, the RPF should have indeed been triggered in the Boeung Kak case.
Accordingly Bank Management made a number of commitments to attempt to address harm suffered. It committed to “[w]orking with the Government and Development Partners towards ensuring that the communities who filed the Request will be supported in a way consistent with the Resettlement Policy Framework.” Management pledged to “continue to pursue actions so that people can benefit from a set of protection measures in line with what they would have received under the RPF,” including the possibility of using other World Bank credits or trust fund mechanisms.
An attempt was made by the Bank early this year to get agreement from the Government to undertake a feasibility study on a new project aimed at improving living conditions for urban poor and resettled communities. This proposal was rejected, apparently by the Prime Minister himself, potentially motivated either by a grudge held against the World Bank for being so bold as to “interfere” with control of land issues, or because of a concern that such a project would get in the way of plans of those close to the Prime Minister.
In any case, the proposal was shelved, and the Bank retreated despite its earlier commitments and its recognition that moving forward to find a resolution would not be easy given the current environment and strained relationship between the Bank and Government. The Bank appears to have lost its energy and/or will to try anything else, preferring to quietly retreat into its shell on this matter and plod along with business as usual on other projects. Recently the Bank Board has approved new projects in other sectors in Cambodia, apparently unperturbed by the message this sends to the Cambodian and other Governments about the extent to which contractual obligations with the Bank are inviolable and to which safeguard policies are mandatory.
If the Panel finds that there was non-compliance with World Bank operational policies in the design and implementation of LMAP and that harm resulted, the Bank Management will have to develop a new action plan to address the harm. In the difficult context of Cambodia in which the Government does not want to play ball, the Bank will need be creative. One way to do this would be to set up a trust to be administered by an NGO to provide assistance to the affected people, including for example, livelihood assistance or cash payments. While this would be pushing the boundaries of what the Bank has done in the past in response to Inspection Panel findings of non-compliance, it is well within the realm of possible mechanisms available to the Bank and would show that the Bank is serious about its safeguard policies and its poverty alleviation mission.
In a similar case in Albania, in which a Bank-financed project was also implicated in forced evictions, the Bank responded by directly paying legal and court fees for the people adversely affected by the project. This response shows that establishing a mechanism through which affected people receive direct benefits is possible. The Albanian Government consented to the Bank’s payment of the legal fees, although the establishment of a trust fund for direct civil society support without Government approval is also conceivably possible.
In the Albania case World Bank President Robert Zoellick promised “the Bank would move promptly to strengthen oversight, improve procedures and help the families who had their buildings demolished” stating that “the Bank cannot let this happen again.” As David Pred, Executive Director of Bridges Across Borders Cambodia observed in a Press Release on the investigation of LMAP, in the case of Cambodia “[t]hey [have] let it happen again.”