Kyrgyzstan property issues update, part 2 – Unen-durable Solutions

by Kaigyluu

‘Kaigyluu’ is the pseudonym of a longtime TerraNullius reader with broad experience working on housing, land and property (HLP) and legal reform issues in many countries post-socialist, post-conflict or both. Having provided an earlier briefing last year on the aftermath of the 2010 ethnic riots, Kaigyluu yesterday updated TN readers on the local and regional politics of rebuilding Osh, and today addresses the policy choices of international actors involved in humanitarian response and reconstruction.

While housing, land and property (HLP) rights were put on the agenda in the immediate aftermath of the June 2010 inter-ethnic violence in South Kyrgyzstan, the HLP process was complicated (a) by a lack of clear rationale or objective and (b) strategic choices made at the outset.

With respect to the first point, based upon an initial assessment by the Global Protection Cluster (GPC) conducted in the wake of the June events, UNHCR focused first on the construction of shelter and then on legal assistance to restore HLP documents lost or destroyed. The assumption upon which provision of such legal aid was based proved faulty, in that it was soon discovered that over 80% of affected households had never had proper documentation. And so the HLP project concentrated on obtaining documentation for those whose homes were destroyed, as well as registering the newly constructed replacement shelters.

Nevertheless, the justification for securing documentation only for those whose homes were destroyed, whereas the majority of the affected population – and, indeed, the population at large – also lacked such documentation, was undermined. The project might have been realigned – and was, ad hoc, to provide documents to those whose homes were threatened with expropriation – but the follow-up scoping mission recommended by the GPC to conduct a full situational assessment was never carried out.

This leads into point (b) on strategic choices, namely that the international community chose to channel their support through the State Directorate for Reconstruction and Development for Osh and Jalal-Abad Cities (‘SDRD’ – previously, the State Directorate for Rehabilitation and Reconstruction or ‘SDRR’) set up by the central government, and headed by current Prime Minister Jantoro Satybaldiev. The international community decided to bypass the Osh mayor, Melis Myrzakmatov – understandable, given his nationalist (and often erratic) rhetoric.

Myrzakmatov was opposed to anything directed by Bishkek: an opposition entrenched when he successfully resisted the attempt of the interim government to remove him. Unfortunately, in the case of reconstructed (and, indeed, all) housing, the issuance of building permits was controlled at the municipal level. Therefore, in Osh, construction permission was never granted. And so, the majority of the shelters constructed there remain unregistered; whereas, in Jalal-Abad, where the mayor was successfully replaced (twice) by Bishkek, authorities were more cooperative, building permission was issued, and registration proved relatively simple.

More broadly, apart from reliance on the SDRD, there a choice by the international community – perhaps by default – to opt for a ‘rule of law’ approach, as opposed to one driven by the need for a recognition of rights. That is, the reconstruction and HLP process was channelled through the existing domestic land and housing regime. As such, it became vulnerable to the inefficiencies or gaps in the system, as well as any political or personal manipulation of it.

Given the extraordinary nature of the June 2010 events – which constituted a massive and illegal ‘taking’ – a special regime should have been established to strengthen the position of those affected, rather than just restoring them to their status ante using the pre-existing (flawed) system. Reconstruction in 2010 began based upon a ‘green-light’ given by Satybaldiev, then both SDRR Director and Vice-PM, the legal effect of which is now debatable. Officials in Osh, uncooperative during the reconstruction planning phase, could then ‘legitimately’ refuse to proceed with registration on technical grounds once construction was completed. (Again, in Jalal-Abad, officials were willing to overlook such minor technical faults.)

Despite international support to state institutions – UNHCR, for instance, provided substantial assistance to strengthen the State Registration Service, under which land registration fell – and repeated promises from Satybaldiev, while he was still director of the SDRD, an unambiguous order to register the 2010 shelters was never issued by Bishkek. Instead, there was some tinkering with the construction registration process at the beginning of 2012, theoretically to strengthen the hand of central authorities: a parting gift from Satybaldiev when he left the SDRD. The changes, however, just ended up blurring responsibilities, calling into question the legal basis for any subsequent registration, and further delaying the process.

By contrast, in July 2011, President Atambayev was moved to issue an Order instructing all officials, including those in Osh, to approve the necessary permits and plans for the ADB-funded (second) phase of reconstruction, when the ADB threatened to cancel all reconstruction assistance, including fiscal support and major infrastructure investment. Local authorities quickly fell into line – although the final registration of the ADB-financed structures was also a victim of the aforementioned registration-related amendments, as well as being held up by the delays in registering the 28 m2 built in 2010.

Housing is not the only problematic issue for those displaced in 2010. Many of those whose homes were severely damaged or destroyed have since been hit with massive utility bills for the period of their displacement. Although, in most cases, their meters were also destroyed, the electricity company nevertheless levied charges on a pro rata basis for unaccounted for electricity usage. In some cases, the home owners may have managed to tap into the mains while their houses were being reconstructed. In many cases, however, the affected persons did not: the electricity company routinely ‘loses’ huge amounts of power, siphoned off or unpaid for by various actors. Not only do these charges prevent reconnection of returnees’ utilities, the penalties for their failure to pay have reached unmanageable levels. Destruction of meters and reconstruction, it seems, may provide a windfall allowing the company finally to get into the black.

Appeals from UNHCR and others for a presidential decree that would break the housing registration impasse, and perhaps even provide an amnesty for IDPs’ utility and other fees, have fallen on deaf ears. In hindsight, it might have been better to have pressed for stronger emergency powers to be vested in the SDRD at the beginning. Foresight, however, does not seem to be in any greater supply: while supporting amendments to the Law on Emergencies – and providing frequent material assistance in the earthquake-prone South – UNHCR has not availed itself of the opportunity to press for incorporation of the UN Guiding Principles on Internal Displacement (Deng Principles), and still less the Pinheiro Principles, into domestic law. The risk of not so doing being that, if events along the lines of June 2010 recur, as they may well do, those affected will be in no better position than the affected population in 2010, registration or no registration.

Greater willingness on the part of the Kyrgyz Government to harmonise domestic law with international standards would, of course, not be a panacea. Black-letter law, in so far as one can ever describe international law as such, is notably vague on specific problems such as those encountered in South Kyrgyzstan: illegal settlement and construction, as well as informal or (forgive the pun) ‘constructive’ rights, as are prevalent in a transition society, built on top of a customary system, where the scope and content of property rights is still being (re)defined.

There is no clear-cut obligation on the part of the authorities to register and, having agreed to utilise the existing system, the international community can hardly now complain. Even if the reconstructed houses are eventually registered, applicable international principles – e.g., the Basic Principles and Guidelines on Development-based Evictions and Displacement – focus more on due process and compensation, not on indirect discrimination, respect of home or the necessity of a taking.

That said, there are more rigorous – i.e., backed by money – standards that might have been applied: notably, the ADB Safeguards and WB Involuntary Resettlement policies. For example, the World Bank policy includes a proportionality test dictating that a taking of land should be avoided whenever possible. Both policies require compensation or restoration for lost livelihoods. It is even whispered that ADB debated designating the Uzbeks an ‘indigenous people’, which would have triggered additional safeguards; including cultural protection.

Indeed, the ADB fudged on its own policies, positively, by involving itself in individual reconstruction and encompassing reconstruction (up to 100 m2) based upon the pre-conflict foundations, rather than just that which was legally registered, but also – somewhat more problematically – without clearly documenting the ownership of the properties first. Unfortunately, full application of the banks’ safeguard policies was not triggered in this situation: the banks were supporting reconstruction and land registration, not projects that would result in expropriation and resettlement.

That said, the development banks were reluctant to invoke their safeguards proactively. The reform, formalisation, and strengthening of land rights are issues being addressed in Kyrgyzstan, but in a more conventional development – or rule of law – manner. Naturally, there is an urgent need to normalise administrative systems, especially land administration. The problem – and it is not unusual in a post-conflict setting – was that there was little recognition of the specific problems posed by such a situation – or coordination between the emergency response and mainstream technical assistance. The ADB steered its social safeguard specialists well away from South Kyrgyzstan. Moreover, and somewhat curiously, while the World Bank claims to have systematically registered over 90% of the land in Kyrgyzstan through its Land & Real Estate Registration Project, Osh and Jalal-Abad seem to have been completely missed – and, therefore, affected persons’ land had to be registered on an ad hoc basis, using precious emergency reconstruction funds, after June 2010.

Someone with imagination might think to file a grievance against the World Bank, but, after more than ten years, the Bank itself has grown disillusioned at the prospect of meaningful (land) reform in Kyrgyzstan. And it would be churlish to criticise the ADB unduly: after all, such reconstruction assistance was unprecedented and approval required some arm-twisting within ADB HQ. The naysayers in Manila would be vindicated; proof that it was more trouble than it was worth. That said, ADB technocrats are keen to push ahead with the more traditional large-scale infrastructure projects – projects local officials actually want – while the linked promises about reconstruction registration remained unfulfilled. An Inspection Panel is one thing that might strike terror in the technocrats’ hearts – and actually steel them to stand their ground with the government.

But there is no one to criticise the banks – and only a few who will openly challenge the government’s record. Those charged with protecting the rights of the affected population are beholden to the donors, as well as dependent upon the goodwill of the government in a vast array of matters, beyond just clearing up the aftermath of June 2010. It is convenient, therefore, to lay the blame on the Mayor of Osh, because no one is talking to him anyway; whereas, with nothing at stake or on offer, the Mayor can turn a deaf ear to the international community.

UNHCR was already on the ground in June 2010, having maintained a presence in the South since the days when Uzbek refugees fled across the border from Andijan in 2005, and assumed the lead in June 2010. In terms of the emergency response, UNHCR was clear and efficient on what had to be done: i.e., provide shelter, as well as other necessities for the affected population. In terms of HLP, it was operating on less familiar ground.

As noted, the GPC HLP assessment identified replacement of lost or destroyed HLP documents as a possible need for those displaced. UNHCR used this initial recommendation as the template for protection programming: reconstruction of housing and, linked to that, restoration of documentation – deviated from only in so far as there were few pre-conflict documents to restore. On this basis, within 3 years – a notional wind-down point according to UNHCR theory – it should be possible to achieve a ‘durable solution’ for those displaced: e.g., rebuild and register their houses. If the houses are subsequently demolished, it will no longer be UNHCR’s responsibility. Indeed – or so the theory goes – because of UNHCR’s HLP project, owners will be assured of compensation, which they could then use to establish a new life: durable solution achieved.

Such a (deceptively) straightforward and well-defined programme sidelined more difficult questions about the long-term viability of reconstruction and return, not to mention any need to enunciate a clear objective: protection and, perhaps, restoration of the status quo ante – or sustainable return and reconciliation; i.e., peace-building. Protection, in a sense, addresses the symptoms; whereas peace-building seeks to alleviate the underlying causes of conflict.

UNDP, OHCHR and UNHCR all received support from the UN Peace-building Fund (PBF). UNHCR used the money to continue its HLP documentation project: but the case backlog was still not cleared when the money finally ran out in June 2012. The systemic impact of the UNDP and OHCHR PBF-financed projects is also not manifest, but it would not be unreasonable to suppose that it was no more profound than UNHCR’s. The PBF was used more shore up stretched budgets for existing programming, than to launch bold new initiatives.

The underlying (but almost uncontested) certainty of the eventual demolition of the mahallahs, including the reconstructed houses, reinforced the notion that registration, expropriation, and compensation was the only viable durable solution. At times, the rationalisation of this cut-off also seemed to push the focus toward one of satisfaction of contractual obligations, rather than on protection and achievement of sustainable return: from certifying the completion of reconstruction, and thereby fulfilling UNHCR’s performance under the ‘contract’, to focusing registration efforts primarily on those houses reconstructed by UNHCR and ADB. (Those foolish enough to let their houses be reconstructed by USAID are out of luck.)

Inconveniently, officials in Osh did not wait 3 years – and could scarcely hold off until international organisations drew down staff at the end of 2011. Arguably, the HLP project may even facilitate the future, final demolition of the mahallahs – albeit, admittedly, in a rule of law fashion – as formal registration is a prerequisite for the formal transfer (e.g., expropriation) of land. However, HLP documentation ‘restoration’ remains incomplete. Furthermore, the law – and, still less, practice – on expropriation and compensation is, as was demonstrated this summer, less than unambiguous and transparent. As such, the rule of law may yet prove lacking in safeguarding the rights of those affected by the June 2010 clashes, with respect to international standards on due process and compensation.

UNHCR’s great strength – but also its weakness – is that it has, and needs to maintain, a good working relationship with the government; i.e., dealing with ‘routine’ issues under its other 3 pillars, such as asylum cases and or disaster preparedness and response. As such, while aware of the problems and pitfalls, it will not openly criticise: preferring to ‘chip away’ behind the scenes. Other UN agencies, the OSCE, and the majority of the international community – somewhat less understandably in some cases – pursue a similar policy.

The word is that, in the face of the recent spate of expropriation and demolition in Osh, they will “continue with dialogue”. Such dialogue, not to mention the financial support, does not seem to have achieved much to date. Perhaps Mr. Satybaldiev, now that he is finally in a position of power, will at last make good on past promises. Or maybe, as even municipal elections have failed to dislodge the Mayor of Osh (did anyone seriously believe they would?) someone will at last engage local authorities in a serious dialogue.

Otherwise, there is little follow-up. International personnel change, offices shrink, projects end, and the drift sets in. Not only does the drift – or, rather, the potential consequences of a lack of focus – threaten UNHCR’s ‘legacy’; i.e., the timely and fairly effective response to the June 2010 events, including emergency reconstruction of 2000 homes. More importantly, such inertia jeopardises effective protection of the (property) rights of thousands of individuals and a minority community (with 25 million restive cousins a stone’s throw, and sparsely-defended border, away). This sets a dangerous precedent and has already heightened tensions in the Ferghana. In a region where Kyrgyzstan was hitherto a beacon of relative progressiveness and tolerance, the potential for a wider inter-ethnic backlash, political and religious extremism, and cross-border conflict should not be idly dismissed.

One response to “Kyrgyzstan property issues update, part 2 – Unen-durable Solutions

  1. Pingback: Kyrgyzstan cracks down on the ICG in Osh | TerraNullius

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