Predation and dispossession in Africa: enabling constructive contestation over natural resources

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Predation and dispossession in Africaenabling constructive contestation overnatural resourcesAlexandra L Carletona

a Department of Land Economy Cambridge University CambridgeUKPublished online 10 Apr 2014

To cite this article Alexandra L Carleton (2014) Predation and dispossession in Africa enablingconstructive contestation over natural resources Journal of Contemporary African Studies 32156-78 DOI 101080025890012014900309

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Predation and dispossession in Africa enabling constructivecontestation over natural resources

Alexandra L Carleton

Department of Land Economy Cambridge University Cambridge UK

(Received 22 April 2012 final version received 3 September 2013)

The lsquoright to contestrsquo is an internationally recognised principle embodied in theInternational Covenant on Civil and Political Rights (ICCPR) The issue posited bythis paper is whether and how contestation can occur in resource-rich countries inAfrica constructively or destructively Constructive contestation in Africa isparticularly important in relation to natural resources those under the land on theland and perhaps most importantly in relation to the land itself Without the politicaland social spaces to contest decisions regarding those resources constructivelyviolence or other forms of destructive contestation may ensue In Africa the problemof contestation is exacerbated by the predation of resources ndash its illicit taking by moredominant parties ndash and consequent territorial dispossession loss of culture andidentity and the often justified feelings of betrayal and anger If one accepts thatcontestation in a constructive manner ought to be provided for the questions then ariseas to who can legitimately contest and on what basis

Keywords autochthony predation constructive contestation

The first man who having fenced in a piece of land said lsquoThis is minersquo and found peoplenaiumlve enough to believe him that man was the true founder of civil society From how manycrimes wars and murders from how many horrors and misfortunes might not any one havesaved mankind by pulling up the stakes or filling up the ditch and crying to his fellowsBeware of listening to this impostor you are undone if you once forget that the fruits of theearth belong to us all and the earth itself to nobody (Jean-Jacques Rousseau Discourse onInequality 1754)

The lsquoright to contestrsquo is an internationally recognised principle embodied in theInternational Covenant on Civil and Political Rights (ICCPR) Constructive contestationin Africa is particularly important in relation to natural resources those under the land onthe land and perhaps most importantly in relation to the land itself Land or territory hasbeen called lsquothe most critical flash-point of conflictrsquo (Cain 2004 quoted in Palmer 2004)being both instigator and continuer of conflict Cain notes

It has often been said that land is the basic natural resource Over the span of human historyman has drawn most of his sustenance and much of his fuel clothing and shelter from theland Land has been manrsquos habitat and living space land has been a matter of life and deathof survival or starvation (Cited in Mather 1986 1)

Email alexcarletonlycoscom

Journal of Contemporary African Studies 2014Vol 32 No 1 56ndash78 httpdxdoiorg101080025890012014900309

copy 2014 The Institute of Social and Economic Research

In Africa the problem of contestation is exacerbated by the predation of resources ndash itsillicit taking by more dominant parties ndash and consequent territorial dispossession loss ofculture and identity and the often justified feelings of betrayal and anger This paperconcerns itself with the exploitation and predation undertaken by multinational miningcompanies of resources as part of a global disposition towards hegemonic resourceextraction The entitlement to contest predation of mineral and land assets and reclaimsuch wealth is inherently accepted in this paper

Constructive contestation

Constructive contestation is a phrase borrowed from Handley (2008 12) who uses it inrelation to the ability of the local private sector in Africa to develop their own voice andcontest proposed policies of the government She finds a positive correlation betweeneconomic growth in certain African states and the emergence of an lsquoautonomous businesscommunityrsquo (2008 12) defined lsquoas one which conceives of its economic and politicalinterests as identifiable and distinct (from those of other groups in society including thestate) and is organized in pursuit of those interestsrsquo (2008 12) Handley (2008) arguesthat much of economic development depends on the dialogue between the governmentand the private sector Where state and business are too closely aligned whether byfamilial ethnic or ideological ties the economy suffers This is her concept ofconstructive contestation

Constructive contestation is applied here to examine the health of the relationshipsbetween foreign extractors and agrarian populations whose land holds mineral wealthand to a lesser degree between agrarian populations and their governments and betweenthese governments and foreign extractors Constructive contestation is about creating apolitical or legal space to positively challenge decisions and actions and positivelyresolve disputes A lsquoforum that intensifies interaction increases the number of exchangesand reduces the interval between them can develop stable mutual expectations regardingfuture behaviorrsquo (Benvenisti 1996 412) Constructive contestation describes both theability of a people to challenge assert claims against and engage in disputes with theirgovernment or foreign extractors and the ability of a government to assert its rights overits sovereign mineral resources against more dominant nations It can apply in situationswhere there is a threat of mineral predation and where predation has already occurredencapsulating notions of participatory governance and reclamation without being strictlylimited to civil society fora such as media and community networks for engaging inpolitics In this way the term also includes the right to reclaim onersquos inheritance

Constructive contestation is closely tied to who the state considers legitimate groupswith legitimate claims Wilkinson (2008) notes that the relationship between some formsof contestation (for example that based on religious identity) and violence could better beexplained by focusing on state perception as the basis for contestation That is where thestate perceives certain mobilising identities as illegitimate and uses force against them(291) rather than there being anything intrinsic to that particular identity that makes themmore prone to violence The state ties legitimate contestation (that which it will allow) tolegitimate identities which may change as policies change (293)1 In other wordsconstructive contestation is tied to the statersquos perception of what it perceives or chooses tobe legitimate groups arguing for legitimate claims State incentives to legitimise certain

Journal of Contemporary African Studies 57

identities and not others cannot be ignored particularly when the use of violence isdirected against delegitimated identities (294ndash295)

In this paper the author categorises contestation broadly as either constructive ordestructive Each of these may be further delineated as discursive and litigative (bothconstructive) and subversive and violent (both destructive) Broadly constructivecontestation is the enablement of peaceful (mostly institutional) challenge and disputeresolution whereas destructive contestation uses violent or chaotic means to presentchallenges and resolve disputes Constructive contestation includes any non-violentpathway to challenge extraction or expropriation of land excluding local populations forthe benefit of mining companies and may embody a number of pathways or actions forresolving competing claims over land Legislative action for example taken by thegovernment on behalf of the population against an extractor (or other local businessforeign armed force or local rebels) for breaches of environmental labour or human rightstandards as enshrined in international charters is an indicator of a successfulconstructive contestation2 Indeed such legislative action where the state constructivelycontests the actions of multinationals may affect how successful any local constructivecontestation is because it demonstrates the willingness of the state to both recognise andassert its primary right over national natural resources and to do so with an eye to theconditions and benefits to be acquired for the local population Without this willingnessthe effectiveness of any system which increases access to politicondashlegal lsquojusticersquo could beimpeded Other means of constructive contestation include those that foster amicable andalternative dispute resolution or adjudication and those that are or promote discursivemeans of contestation such as community participation Even secession may be aconstructive contestation mechanism regaining rights of control over mineral resources

The right to contest

The right to contest could be entrenched constitutionally or statutorily as a non-derogableright The right to contest is a necessary start for providing the state and local populationswith the legal ammunition required to legitimate local claims over land and naturalresources over those of multinational mining companies The right would allow both thestate and the locals to contest exclusive access to or control over land that has been orwill be awarded by the government such as mining grants or applications The right tocontest ought to apply to land already taken and to land in the process of concessionnegotiation The lsquorightrsquo itself may not be indicative of a functioning contestation spacebut it is perhaps a necessary first ingredient It also responds to and highlights aninternationally agreed principle enshrined in the ICCPR Article 1(2)

All peoples may for their own ends freely dispose of their natural wealth and resourceswithout prejudice to any obligations arising out of international economic co-operationbased upon the principle of mutual benefit and international law In no case may a people bedeprived of its own means of subsistence

It is also a part of the African Charter Article 21(1)

All peoples shall freely dispose of their wealth and natural resources This right shall beexercised in the exclusive interest of the people In no case shall a people be deprived of it

58 AL Carleton

Predation of natural resources

Despite the existence of these principles predation of natural resources dispossessionand deprivation still occur in Africa Many indigenous and other land-based groups whodepend upon the land and its natural resources for their livelihood often occupy areas ofintense resource richness3 The inherent conflict caused by extraction activities has led toforcible dispossession of the people who depend upon the land for sustenance (DowneyBonds and Clark 2010 417ndash445)4 In Southern Sudan for example extraction activitieshave been linked to the forced displacement of a reported four million civilians since1983 (Human Rights Watch 2003)5 Forcible displacement is used to secure access to oil-rich fields and is supported by the prohibition of aid provision to civilians located on ornear the oilfields and the exploitation of ethnic tensions (Human Rights Watch 2003)More specifically the lsquo[e]xpansion of oil development has continued to be accompaniedby the violent displacement of the agro-pastoral southern Nuer and Dinka people fromtheir traditional lands atop the oilfieldsrsquo (Human Rights Watch 2003) Boixrsquos statisticalwork finds a correlation between destructive contestation (his work focuses on civil war)and agrarian sector dominance unequal distribution of land and in some cases assetimmobility (for example oil reserves Boix 2008 197 and 199) Conflict becomes all themore acute where assets are immobile because the assetrsquos economic value is realised (thatis extracted) in a specific geographic location (199) Moreover oil whose disposal (andany revenue generated by its extraction and sale) belongs to the citizens of the state areused to fund armed conflict against those citizens who occupy oil land (Human RightsWatch 2003)

Removing indigenous and other agrarian communities from lsquoor denying them accessto lands once regarded as free hellip to subsurface resources which in most parts of theworld are regarded as belonging to the community as a wholersquo (Morse 1965 371ndash372)destabilises the access to and control over the natural resource needed to sustain theirlives and livelihoods6 Forced resettlement and consequent lsquoprogressive shrinking of theprimary resourcesrsquo (Ndahinda 2007 9) base threaten the very survival of these groups[Report of the African Commission on Human and Peoplesrsquo Rights Working Group ofExperts on Indigenous PopulationsCommunities (hereafter African Commission Report2005 13) see also Van Genugten 2010 34 Benvenisti 1996 384ndash415] Traditionalaccess to land and natural resources is inherently linked to the basic well-being and rightof survival of autochthonous or traditional occupiers of territory and their arguably moreenvironmentally aware alternative ways of life The African Commission Reportstates that

Dispossession of land and natural resources is a major human rights problem for indigenouspeoples hellip Large-scale extraction of natural resources hellip have had very negative impacts onthe livelihoods of indigenous pastoralist and hunter-gatherer communities in Africa (AfricanCommission Report 2005 12)

Moreover negative environmental consequences brought about by the exploitation andextraction activities compound the loss of a livelihood so environmentally tied(Benvenisti 1996 404ndash406)

Physical dispossession is compounded by the loss of landscape-attached identity anddenial of cultural existence7 Ancestral land is an inherent part of cultural and spiritualvalues which comprise identity (Short 2007 873) The importance of land to culture is

also recognised in the Draft Declaration on Indigenous Rights Article 26 and the AfricanCommission

The dispossession of land and natural resources threatens both the economic social andcultural survival of indigenous pastoralist and hunter-gatherer communities and this violateshellip the African Charter which states that all peoples shall have the right to their economicsocial and cultural development with due regard to their freedom and identity and in theequal enjoyment of the common heritage of mankind (African Commission Report 2005 12)

Therefore policies which threaten the integrity of the land may also threaten the integrityof indigenous culture (Holder 2008 17) Culture is a defining characteristic of collectiveidentity reflected in land (Jovanović 2005 633) and lsquothe collective corollary toindividual rights of free expressionrsquo (Holder 2008 18) Culture has been used to increasethe legitimacy of claims against the state where access to or control over ancestral landand resources has been denied and there have been some successful claims forpreservation of land access rights globally In the case Centre for Minority RightsDevelopment (Kenya) and Minority Rights Group International on behalf of EndoroisWelfare Council v Kenya African Commission on Human and Peoplesrsquo Rights 2010 theEndorois filed a complaint against the government of Kenya for dispossession fromspecific ancestral lands ndash Lake Bogoria area of the Baringo and Koibatek administrativedistricts ndash and the associated loss of the communityrsquos pastoral lifestyle and ability topractise their religion and culture The Endorois claimed this specific ancestral land waslsquoinextricably linked to the cultural integrity of the community and its traditional way oflifersquo (para 16) believing

that the spirits of all Endorois no matter where they are buried live on in the Lake withannual festivals taking place at the Lake The Complainants further claimed that the Endoroisbelieve that the Monchongoi forest is considered the birthplace of the Endorois and thesettlement of the first Endorois community (para 6)

The Endorois had pursued domestic litigation to the High Court which found there wasno lsquoproper identity of the people who were affected by the setting aside of the landrsquo (para12) The case was brought and considered as a collective claim (para 75) and was decidedin favour of the Endorois the African Commission finding violations of several articlesof the African Charter including Article 21 The Commission requested Kenya torecognise the rights of ownership of the Endorois to restitute their ancestral lands togrant unrestricted access to the lands and to award compensation for all loss

The issue of forced displacement is gaining greater attention in international circlesForcible displacement of a particular group might be a violation of international lawbecause it is discriminatory removal from specific land destroying localised culturalattachment (Stavropoulou and Lee 1996 552 Kolers 2009 93) Freedom of residencethe antithesis of forcible displacement is enshrined in many constitutions andinternational agreements including the ICCPR Article 12 Such lsquorights against forcibleremoval are linked to rights to maintain and strengthen relationships to specific territoriesand waters and to use these in accordance with a peoplersquos own customs laws andprioritiesrsquo (Holder 2008 18 this right is also recognised in the African Charter Articles25 and 26)

The Kaiama Declaration of 1998 an indigenous declaration of the Ijaw Nation of theNiger Delta declared at the end of the All Ijaw Youths Conference 11 December 1998

60 AL Carleton

lsquoall land and natural resources (including mineral resources) within the Ijaw territorybelong to Ijaw communities and are the basis of our survivalrsquo (Kaiama Declaration para1) Under the Declaration the Ijaws lsquocease to recognise all undemocratic decrees that robour peoplescommunities of the right to ownership and control of our lives and resourceswhich were enacted without our participation and consentrsquo (Kaiama Declaration para 2see also Obi 2010a 228) The Kaima Declaration claims that lsquodegradation of theenvironment of Ijawland by transnational oil companies and the Nigerian state arisemainly because Ijaw people have been robbed of their natural rights to ownership andcontrol of their land and resourcesrsquo (para g) and the lsquoexisting and continuing trend ofstealing by public office holders in the Nigerian statersquo (para j) Whether ownership (seeVandenberg 1998 9ndash17)8 ought to be considered a natural right or more than simply anaddition to the problem is a separate question which is dealt with in part below inaddressing the nature of property rights

Privatisation of communal property appropriation of mineral wealth exclusion fromthe commons and the associated forceful expulsion of agrarian populations are part andparcel of Harveyrsquos (2007 34ndash35) lsquoaccumulation by dispossessionrsquo Environmental andsocial costs (Ross 2003 28) and the associated losses of governance independence andidentity as traditional occupiers are dispossessed and alienated from their land are born atthe local level while

profits go to the state the transnational elites hellip global financial institutions and oilcorporations hellip the costs and real curses go to those whose lands and livelihoods are pollutedor expropriated and whose rights are trampled underfoot as they continue to live out aparadoxically impoverished existence in an oil-rich but blighted context (Obi 2010b490ndash491)

This accumulation of wealth by dispossessing others of that wealth where wealth istransferred from the vulnerable population to the elite of the capitalist system is plunder(Obi 2010a 221 Harvey 2007 34ndash35)9 effected by a lsquotransnational hegemonic classunited around a common interest of hellip extraction hellip ndash and the sharing of its spoils ndash buthaving little or nothing in common with the ordinary folkrsquo (Obi 2010b 491) Thoseresponsible for this dispossession include state and non-state actors militia armed forcesand foreign occupying armies foreign corporations and kleptocratic governments(Raeymaekers 2002 Raeymaekers and Cuvelier 2002 Custers Cuvelier and Verbruggen2009 Human Rights Watch 2005)

Inequitable power relations often lie at the heart of violent conflict with internationalcorporations (along with more dominant nations and local elites) able to exploit thenatural resource potential of less powerful states and citizenry The Kaiama Declarationdirectly blames the lsquosuppression and marginalisation visited on Ijawshellip[on the] thealliance of the Nigerian state and transnational oil companiesrsquo (para d) Obi (2010b 490)notes that

The roots of violent conflict in the Niger Delta as in other oil-rich contexts in Africa do notlie in pools of oil they lie in the inequitable (transnational local national and global) powerrelations embedded in the production of oil and the highly skewed distribution of its benefitsand pernicious liabilities

Obi finds that conflict in Africa as a whole is due to the lsquosubordination of the continentand its resources to transnational processes and elites embedded in globalised capitalist

relationsrsquo (483)10 Natural resource assets are held lsquoin trust for the people it represents hellipTo snatch these away and sell them as stock to private companies is a process of barbaricdispossession on a scale that has no parallel in historyrsquo (Roy cited in Harvey 2007 36)

Etymologies discussed by Proudhon denote a thief or robber as one who lsquoconcealscarries away or diverts in any manner whatever a thing which does not belong to him hellip[it is a] profiteer who takes all who gets the lionrsquos sharersquo (Kelly and Smith 1994 198)Where few control and benefit from common natural resources depriving a communityof both a share in the wealth and participation in the decisions regarding use of the wealthis theft in the sense defined by Proudhon Vandenberg (1998 9ndash17) notes that the truesignificance of African independence lay in the control given back to Africans overproperty land and extractive and trading rights Yet despite a constitutionally enshrinedright of sovereignty the sovereignty regained by the people of African states such as theDemocratic Republic of the Congo (DRC) over their mineral wealth is questionable

The extractionndashdispossessionndashresistance paradigm is exacerbated where extractivecompanies operate11 because visible control of both land and subterranean resources isseen to result in few benefits for local populations lsquo[T]he repressive and extractiveactivities of governments often constitute the largest current threats to the livelihoods oftheir own citizens many governments operate essentially in the same ways as racketeersrsquo(Niemann 2007 24)12 Human rights abuses have been linked to plunder by internationalmining companies including abduction forced labour arbitrary detention and exploitationof artisanal miners whose position and existence are already under added strain becauseof the industrialisation of the mining sector13 Exclusive rights over mineral landsobtained through concessions allow mining monopolies to act like economic enclaves

Destructive contestation

Obi (2010a) finds that dispossession by accumulation not only deprives people of theirrights over their natural wealth and loss of livelihoods and identity but also provides thelegitimacy needed for destructive contestation lsquoHarveyrsquos position that ldquoaccumulation bydispossession in our times has provoked political and social struggles and vast swaths ofresistancerdquo is exemplified by the resistance in the Niger Deltarsquo14 Social mobilisation metwith military oppression in turn encourages violent resistance through necessity becausethe state fails to either listen to or heed the rights of its people (Obi 2010a 229) thedestructive contestation becoming a tool of both empowerment and survival Thus lsquo(in)access to a local resource in combination with other factors such as class power orisolation of a social group may be sufficient in some cases to generate a violent conflictrsquo(Obi 2010a 229)

It could be argued that where extraction or expropriation incites violence both hostgovernments and local people lack the ability and political weight to constructivelycontest claims for exclusive land use Where constructive contestation is disableddestructive contestation may consequently result War and violence could be consideredindicative of a dis- or non-functioning politicondashlegal space where peoplersquos grievances canbe heard A violent response may be justified where recourse to a functioning judiciary15

or the ability to approach a court of law and contest or assert land claims or the denial ofother political non-litigative means is denied

The roots of violent conflict in the Niger Delta hellip was manifested in the non-response to ndashand later repression of ndash peaceful protests against the exploitation and pollution of the

62 AL Carleton

oil-rich region by a statendashtransnational oil alliance whose activities alienated the ordinarypeople from the land and means of their livelihoods poisoned the ecosystem deepened pre-existing inequalities and grievances and paved the way for the descent into violent conflicthellip They can also be explained by the high-handed response of the state to initially peacefulprotests the militarisation of the region and the complicity of oil multinationals andtransnational elites benefiting from oil production (and pollution) in the region (Obi2010b 490)

If channels to constructive contestation are kept open and multiple levels and layers arisethe mechanisms which complainants have or feel they have to assert claims are broadenedthus potentially minimising the need to revert to violent means of destructive contestation

The force of the language in the Kaima Declaration is evidence of a kind of angercaused by theft en masse and particularly the loss of land home livelihood and identitythat causes an eventual lsquobrimmingrsquo of multiple grievances These are grievancesfacilitated by inequitable global power relations

injustices embedded in the separation of those that profit from and enjoy the benefits of oilproduction and commoditization (the transnational alliance of petro-state oil multinationaland ruling elites) from the hellip dispossessed in local communities from under whose landsand waters the oil is extracted (Obi 2010a 221)

Local resentment and insecurity builds as money are seen to be siphoned away from localcommunities benefits accruing to government and foreign companies while16 localpeople bear the costs of extraction land expropriation and environmental damageConsequently local populationsrsquo demands for a fair share of the extractive value of theland on which they live may contribute significantly to the commencement of territorialstruggle (Borras and Franco 2010 3ndash4)

When a privileged elite defends its too large share of too few resources the link is createdbetween poverty inequality and the abuse of human rights The denial of basic freedoms ndash toorganize to express yourself to vote to disagree ndash forces people to choose betweenaccepting gross injustice and securing a fairer share by violent means (Smith cited inThomas and Wilkin 1999 5)

The emotive response to dispossession and alienation from ancestral or cultural landcannot be ignored Groups that begin to seek a contestation pathway in response are oftenposited as bandits Perceiving them thus that is as lsquodevoid of any kind of political agendahellip [as] bandits hellip significantly narrows the number of possible policy interventions youcan negotiate with armed rebels with a political agenda but bandits are to be crushed byforcersquo (Boslasharings and Dunn 2007 1) However such groups may simply arise lsquoout ofdesperation to achieve power when no other means seem availablersquo (Furley 1995 5) Thishas repercussions for negotiating with such groups Groups which vie for power are seenby Boslasharings and Dunn (2007 5) as lsquomanifestations of rage against the ldquomachineryrdquo ofdysfunctional states their equally fragmented and corrupted institutions and the unevenimpact of a globalised modernityrsquo They agree with Clapham that most lsquoinsurgenciesderive basically from blocked political aspirationsrsquo and sometimes from lsquoreactivedesperationrsquo (Clapham 1998 cited in Boslasharings and Dunn 2007 4) The cause is seen asworth fighting for and this is cemented by at least initial popularity and support of localpopulations who feel the group is fighting a just cause on their behalf They are fightingthe failure of

not just entering the 21st century with little hope of adequate homes or income but the failureof their elders to get it right to make a safe transition from the village to the national state tokeep relations consultative and accountable ndash- and distribution of resources relatively stableand fair where this was the case Instead the young poor in modern agrarian nationsrecognize a world that has become less not more equitable by the decade with little remedyin sight (Wily 2008)

The state rather than protecting the interests of its citizenry exploits them lsquoanoverdeveloped device for extracting resources (for the fortunate few)rsquo (Furley 199512) Yet the state lsquo(no matter how corrupt bankrupt or moribund) is still regarded as thesole legitimate actor within the international communityrsquo (Boslasharings and Dunn 2007 25)

As such local rebellions are more than lsquomanifestations of rage against theldquomachineryrdquo of dysfunctional states their equally fragmented and corrupted institutionsand the uneven impact of a globalised modernityrsquo (5) They are lsquomanifestations of ragersquo atthe unjustified and legalised theft of lands once free and resources once commonly heldsanctioned by an international order that subverts its own claimed aspiration of equalityThe history of exclusion and alienation of local peoples from their lands only adds to thejustification for rage Those fighting against their institutionalised poverty see their causeas just as indeed it is for they are fighting not just against the monopolisation of revenueand complete annexation of their land but itrsquos legalised taking and the nullification ofcustom and identity

According to Bates (2008) political disorder begins with predation The possibility ofgaining benefits from making decisions which take from subjects rather than protects themthat is in following a predatory path leads to political disorder (25)17 Public revenue mayprovide an incentive for the government to protect its sources of wealth (for example theindividual taxpayer) but where the wealth does not come from individual citizens then thegovernment has more incentive to digress (31) Where wealth is generated by extractorsthe government is more likely to defend them Even where revenue comes from both theprivate individual and an extractor the immediacy and directness of revenue collectionfrom extractors as opposed to long-term accrual through taxation may be influential Thiswould increase the likelihood of political instability If the source of wealth is detachedfrom the citizen and stepping onto a predatory path has its own personal rewards ofenrichment it could be said that resource revenues actually encourage the government toprey upon private citizens If extractors are plundering the resources of a country then thegovernment in protecting that revenue stream defends and protects predation

Bates (2008 40) concludes that the prospects of wealth from predation are a factorwhich increases the likelihood of political disorder This means that extractors can beresponsible for influencing political order and stability in African resource-rich countriesWhere extractors are able to influence the legitimacy and policies of governments andother factions operating in mineral-rich territories simply by signing contracts with themthey also may be able to affect the social responsibility of those in power includingmandating where resource profits are spent Prevailing business-as-usual practicesobscure the potential influence extractors have on policy and often exempt themdeliberately or otherwise from accountability for the adverse impacts their activities haveon local populations18 Mineral enclaves need to be lsquo[i]slands of integrity with positivespillover effects in other regionsrsquo (Garrett is quoted in The Enough Project Team with theGrassroots Reconciliation Group 2009 9) that is the focal point for constructive andmoral development rather than centres of plunder

64 AL Carleton

Plunder by foreign and domestic elites is now coming to the fore in internationaljustice concerns In December 2005 the International Court of Justice found that Ugandahad illegally plundered the natural resources of the DRC during its armed occupation ofthe east of the country between 1998 and 200319 In another case involving KatangaMining Justice Tomlinson noted that the DRC has a history lsquomarked by predation of itsenormous wealth and the oppression of its people by foreigners and its own elitesrsquo20

Without government support for resolving claims over land and natural resourceswhich challenges the contractual extractive rights of extractors local people defrauded oftheir wealth have the right to resist This right to resist is justified by the existence of anunaccountable government who fails to respond to the needs and wishes of its people(Kalin 2000 47) In this sense the absence of contestation or confrontation violent orotherwise ndash the lsquoabsence of action [simply means] hellip the relentless pervasive exploitationof the masses at once a denial of democracy and a more sinister form of violenceperpetrated on the overwhelming majority through contractual formsrsquo (Clairmonte 196011 Cited in Chomsky 1969) Therefore where violence or destructive contestationlsquoconstitutes the only means of opposing very grave encroachments by the governmentauthority in a state where the rule of law does not prevailrsquo (Kalin 2000 59) it islegitimate

Self-determination

Local resentment and restlessness caused by dispossession have links to claims for self-determination The prevalence of separatist groups may be evidence of restlessness andanger The Ijaw nation under the Kaiama Declaration aims for lsquoreclaiming the control ofour livesrsquo (para 4) and lsquowork for Self Government and resource controlrsquo (para 10)21

These groups are more than simply rebel factions vying for control of the resource lsquopiersquo(Furley 1995 4) and they are more than simply peasants with grievances overneighbourly land disputes These are organised groups with political aspirations whoare fighting for the freedom to govern their own lives and with it the territory on whichthey live and the resources that lie in it According to the National Coalition of AboriginalOrganisations self-determination is a claim to lsquothe right to control our territory ourresources the organisation of our societies our own decision-making institutions and themaintenance of our own culture and ways of lifersquo22 Liberty itself is the freedom tochoose how one lives including on ancestral or inherited land without interference orthreat of interference Furthermore lsquo[m]aterial conditions such as secure access to sitesartefacts technologies media plants animals and minerals are explicitly linked toensuring that peoples can act and live as they (and not someone else) have chosenrsquo(Holder 2008 18) Liberty is inherent in the ability to choose how one can be tied to theland and therefore what relationship one has with the land Failure to recognise alternativeconceptions of land has made much of African nations (and other resource rich nations)slaves lsquoof the resource-richrsquo (Kolers 2009 54) both because they are forced to bear theresource demands of the industrialised world and because they are forced to share aconception of land ndash that land is there for wealth creation

The ICCPR Article 1(1) states lsquoAll peoples have the right of self-determination Byvirtue of that right they freely determine their political status and freely pursue theireconomic social and cultural developmentrsquo Kalin (2000 49) notes that lsquothe right toexternal self-determination thus essentially means the right of peoples to pursue their

political and economic development in freedom from foreign hegemonyrsquo Self-determination is thus essentially a question about liberty

To have little or no say individually or collectively about the content of our shared lives is tolack an unacceptably large degree of say over the direction and possibilities of our lives inprecisely the way that human rights are supposed to guard against (Holder 2008 24)

Plunder thus not only leads to alienation and a loss of identity but also a loss of freedomReclaiming rights to access and govern national mineral wealth (at least to be

afforded the mechanisms to challenge state agency) is hugely important for thedisinherited and dispossessed peoples of Africa Self-determination does not necessarilyequate to secession although the historical record that the two are contemporaries hasengendered fear among states (see Morgan 2004 488ndash490)

The right of secession is a dormant right that may only be triggered by extremes of politicaldisenfranchisement ruthless exploitation or material dispossession On the other hand theright may be neutralised by access to meaningful political participation23

Failure to address claims to self-determination arguably has the potential to increase intra-state conflict and instability Furthermore lsquothe denial of indigenous peoplesrsquo right to self-determination will leave the most marginalised and excluded of all the worldrsquos peopleswithout a legal peaceful weaponrsquo to press for genuine change at home (Erica-Irene Daes1996 cited in Morgan 2004 491)

The history of predation in Africa entitles Africans to enter the struggle for resources(Mamdani 2002 505) They morally have a claim to the land and natural resources andits wealth both under Article 21 of the African Charter [and ICCPR Article 1(2)] and byvirtue of their cultural attachment to the land Moreover these people have a claim to thewealth defrauded from them from mining companies and their local counterparts Apeople elect a government to dispose of natural wealth on their behalf under the premiseof nationhood where the disposition of natural wealth and resources becomes thedisposition of national mineral wealth But where the government is neither represent-ative nor accountable the right reverts to the people The question which naturallypresents itself next is just exactly who are these lsquopeoplersquo

The claimants of mineral resource wealth autochthonous people

People who ought to have the power to contest natural resource decisions are termed inthis paper as autochthones Autochthony is a lsquodebate over who belongs and who doesnotrsquo (Niemann 2007 36) It is a fluid and potentially problematic concept which informsrights of citizenship indigeneity and ethnic affiliation (see Mamdani 2002)24 Questionssurrounding these concepts ndash questions about belonging and identity ndash are highlycontentious in African society today (Boslasharings and Dunn 2007 31) Autochthones may haveagrarian lifestyles or not In some cases those who once lived agrarian lifestyles but whostill live on the same land may still be autochthones Despite its problematic nature theterm autochthone is more inclusive of multiple groups of people who live upon the landand may have a claim to being there It is essential the definition be kept fluid (Niemann2007 36) to avoid it both becoming as politically charged and dangerous and beingrelegated to the same basket as the concept lsquoindigenousrsquo

66 AL Carleton

Indigeneity is a narrow concept based on original inhabitants granting lsquoprivilegedrights to land and natural resources on the basis of descent from the original inhabitants ofa country or hellip representation of the original human population of the worldrsquo (Pelican2009 53) This narrow definition is contentious however and criticised for being divisive(Pelican 2009 53) Others have advocated a definition focused on priority in timeperpetuation of cultural identity and historical or present subjugation or exclusion (56)

Autochthony literally means lsquoemerging from the soilrsquo (Boslasharings and Dunn 2007 31) andthis could be the liberal yardstick around which belonging is framed A system oflegitimating claims to land and natural resources based on autochthony discards thenecessity to delineate indigeneity citizenship and ethnicity concepts which have onlyincreased the basis upon which divisions and exclusions have been made These versionsof lsquobelongingrsquo which grant one group rights to land and its resources over another grouppromote new ways of excluding along identity lines Belonging becomes not about whobelongs but who does not belong which identities are excluded Lund (2006 19) notesthat these dynamics of inclusion and exclusion new ways to belong are linked to thewestern construct of property where once some belonged to land now the propertybelongs to someone and they have the ability to exclude others Any autochthonous claimneeds to be looked at carefully to avoid the concept becoming yet another divisive tool

As such a definitive definition is left outside the scope of this work There are ofcourse problems to leaving any definition fluid the primary one being that it is thencapable of multiple legitimate understandings (and misunderstandings) Either waydefining such a concept or not is capable of semantic loading and political abuse Thispaper does not seek to posit the best definition it simply uses autochthony as a broaderconcept than something such as indigeneity

Various attachments or belonging to land could be recognised and consideredlegitimate entitling one or a collective lsquoto enter the struggle for resourcesrsquo (Mamdani2002 505) Autochthony should be used to determine and provide the basis for lsquowho hasentitlement to speak to represent to vote to access resources like land and so forthrsquo(Boslasharings and Dunn 2007 33 see also Mamdani 2002 505) and who is entitled to make aclaim over land and its resources Most importantly it provides the basis upon whichforeigners who are not of the soil are excluded (Boslasharings and Dunn 2007 31ndash32) or at thevery least the basis upon which foreign access to land can be contested As Mamdani(2002 505) puts it

How do we reform the state from one that divides its population into settlers and natives intoone that takes the distinction between residents and visitors as key to defining rights

Rather than autochthony being exercised to exclude one citizen or ethnic or indigenousgroup it could resolve tensions where multinationals have claims to land throughextractive licences Claims made between local groups are wasted claims which ignorethe real issue Rather autochthonous claims could be made against the foreign elite25 whohave less linkage to the land than any other group and yet obtain more than any other interms of the benefit Claims to land could be based on the right to exclude the lsquootherrsquo ndashthe lsquootherrsquo being a visitor to the land The question is not lsquowhat are the rights of thisgroup vis-agrave-vis that grouprsquo but rather lsquowho is entitled to make a claim for those rightsrsquo

The distinction could be as Mamdani (2002) suggests according to who is a residentand who is a visitor Claims based on these rights would have liberal limitation periodsand sui generis time indicators for distinguishing between residents and visitors Anyone

defined as a visitor would have significantly reduced rights to both access and controlland and natural resources Such rights may be better described as territorial rights ratherthan property rights The right to contest can only be asserted where autochthonouspeoples have a legitimate claim to the land and natural resource wealth that is wherethere is legal standing to assert rights over land and natural resources

Territorial rights vs property rights

Territorial rights are not synonymous with property rights Property rights are part of whatKolers (2009) calls the Anglo-American ethnogeography26 derived from and allied withthe functioning of the capital market Based on notions of control and possessionproperty rights whether private or state owned are entitlements and limitations that onehas in using a resource (Tietenberg 2006 63) Property ownership refers to theexclusivity27 (at odds with the traditional understanding of the concept of commonproperty) and therefore tradability of that property (all benefits and costs accrue to theowner and no one else Tietenberg 2006 63) It encompasses the right of perpetualcontrol and the right to exclude third parties This construct of property is based on aconception of land and a value of land which is the result of one dominantethnogeography the Anglo-American ethnogeography

This conception views land as essentially worthless until the input of labour (andcapital) that value is added with labour (Kolers 2009 59)28 It follows that the profits orbenefits derived from the use of the land accrue to those who are responsible for the inputof labour (and capital) Land is commodified and lsquo[b]ecause value is imbued in landsolely through economic or instrumental activity land is taken to have importance only asa store of natural resources or economic potentialitiesrsquo (60) Yet as Kolers (2009 59)argues

Market mechanisms purport to measure values but they do so only after imposing somevalues and obscuring others Anything that nature provides hellip is assumed to be free andinexhaustible (Brown 2000)hellip These fluctuations did not reveal anything about the real valueof the land hellip [r]ather the market changed in some way and that change imposed values oncertain pieces of land Any one piece of land has an infinite number of properties andchanges in social circumstances can cause the values of those properties to fluctuate

A legacy of colonialism and the nature of transition to independence have resulted in anassumption that Africans have the same Anglo-American relationship to land sharing thesame ethnogeography (Kolers 2009 54) Alternative ontologies of land have not beenrecognised ontologies which place people as the custodians of resources rather than thepossessors and where territory is an integral part of culture and society informing anattachment to the land beyond the superficial and commercial The value of land derivesnot only from its commercial potential but also from its place as a source of spiritualreligious or environmental connection and beauty The market along with its propertyconstructs struggles to incorporate these other aspects and rather than being lsquoinsulatedrsquo asKolers (2009) argues would be appropriate (places kept away from the purview of themarket) these aspects are largely ignored (they are considered externalities that is valuesnot considered or quantified in a market dynamic) Thus no legitimate claim can be madefor entitlement to land on the basis of historical ties or environmental custodianship Onthe other hand

68 AL Carleton

hellipterritory is held in trust for a population including future generations and futureimmigrants thus territorial rights have at their core a stewardship element that is typicallyabsent from or peripheral to property rights Further territorial rights exclude certainactivities such as wholesale eviction of people who do not own their land and thedestruction willy-nilly of religious treasures or other objects of great significance to insidersor outsiders Property rights permit these behaviours (Kolers 2009 27ndash28)

Current efforts to capture the interests of people whose lives depend on the land focuseson the formalisation of land rights It is thought that in creating regimes of tenure securitya perpetual interest in the land will be a far more effective tool in securing moreenvironmentally and socially sustainable land use29 The pivotal concept for any doctrineon territorial rights is disregarding the property concept of exclusion Territorial rightscould provide the basis upon which alternative ontologies of land which view it assomething apart from exploitative wealth are recognised and legitimated

Territory provides the link between an amorphous parcel of lsquolandrsquo and sovereigntylsquoLandrsquo is amorphous No inference can be drawn from the use of this word aboutsovereign control Kolersrsquo (2009 1) political theory of territory seeks to fill in thisomission in political theory He describes territory as lsquoa conception of land made concretethrough acts of bounding controlling and shaping space and being shaped by it in turnover timersquo(67) These two elements of territory ndash requiring land to be concrete andrelating to being ndash can be further extrapolated

Territory is created through bounding and controlling the access and flow of ageographical space Thus the ability to control access to a territory is essential toestablishing territorial rights or territoriality At the centre of establishing territorialitythen is access whosoever controls access rights are asserting their territorial rights Itfollows that territoriality over natural resources would involve an attempt to affectinfluence or control by means of establishing rights of access to and exploitation of thoseresources Exercising control over such a space asserts territorial rights Conversely theexercising of control over a territory (for example by a non-state group) is a declarationof territorial rights (although this does not necessarily warrant statehood) Any groupasserting such control is effectively establishing its territorial rights However this formof territorial control does not necessarily mean prohibited access to others Rather it is lsquoageographic place bounded with borders that are semi-permeable to (among other things)people and that are structured in a stable fashion by a legal systemrsquo (what Kolers calls ajuridical territory ndash Kolers 2009 73)

At the centre of the concept of territorial rights is lsquolegitimate accessrsquo Those groupswho have access rights given with the consent of other affected groups whether to livefarm or mine have a form of territorial rights For Sack (1986 quoted in Kolers 2009)access or more particularly the ability to control access to a territory is essential toestablishing territoriality It is manifested through lsquothe attempt of an individual or groupto affect influence or control people phenomena and relationships by delimiting andasserting control over a geographic arearsquo (quoted in Kolers 2009 71) That isestablishing and enforcing the lsquoin and outrsquo rules the means of regulating flows (quotedin Kolers 2009 71 paraphrasing Sack 2003)

It follows that territoriality over natural resources would involve an attempt to affectinfluence or control by means of establishing access rights to and exploitation of thoseresources Groups attempting to assert such control are in effect asserting territorialrights Similarly extractors who gain access to a mining site have territorial rights rather

than ownership rights But they are not sufficient to claim lsquountrammeled ownership ordestruction rights over particular buildings or rights to the outright exclusion of themembers of other groupsrsquo (Kolers 2009 25)

Distinguishing between property rights on the one hand and territorial rights on theother could be used to resolve the discord between the value that resources offer and therights attached to them the right to mine or extract a resource does not constitute animmediate right of property over the resource (and following the right to sell the productand gain sole benefit of its realised value) but rather a right of access Territorial rightsmay not nullify the existence of property rights History has shown that withoutrecognised ownership traditional lsquorightsrsquo to manage access and use the land and itsresources and to determine how the fruits of the land may be shared are not legitimated(Wily 2001 76ndash99) Territorial rights could however be the prima facie rights of access

[T]erritorial rights include the power to determine whether something is to be the object ofproperty rights and hence a piece of land is no less the statersquos territory just because a privatecitizen or even a citizen of a foreign country owns it (Kolers 2009 28)

Territorial rights could provide the basis of any claim to the land and the basis of anycontestation of exclusion from land sites Acknowledging territorial rights would providea basis for both local populations and governments to constructively contest exclusiveownership as well as access to or control of land and resources by multinationals who areengaged in extractive activities

Territory also relates to being which identifies territory as a subjective conception ofland a space associated with identity and belonging This can occur on an individual aswell as a collective basis As identity has a role in spurring challenges to the existingorder it is unwise to ignore identity and belonging-based discourse in discussions onterritory (Cederman 2008 242ndash270)30

Four theories have dominated discussion on the theory of political territory conflict-resolution (the object being an interest-based resolution for the major parties to theconflict) individualistic (which reduces everything to individual interests) dissolutionist(which rejects territory as being significant) and attachment theory (Kolers 2009 1ndash2)The last is most relevant for this paper and includes discourses on the linkages betweenpeople and land Not only is the relationship between people and land of importance butalso an understanding of these relationships is essential if we are to reinvigorate andrefocus the discussion on contested political and geographical spaces particularly inAfrica

It is certain that multiple attachments to the same parcel of land may form and manymay be legitimate Autochthonous ties could include those which are hereditary thoughnot current that is where onersquos ancestors are from the land but they no longer live on theland Autochthonous ties may include national ties to a parcel of land which isuninhabited The determination for who has a true claim upon the land is tricky andmust be decided on a case by case basis But where autochthony is the primary basis for aterritorial claim many local groups would have a territorial claim in the African context

Thus any system of land governance should lsquomake space for multiple andoverlapping forms of participation thus permitting ordinary individuals to play a rolehellipin deliberations over land tenure access to resources and the many local and regionalinstitutions that affect individualsrsquo livesrsquo (Niemann 2007 36) At the core of landgovernance then is local level participation and greater responsibility of resource

70 AL Carleton

management given to autochthonous peoples so that those peoples who depend (howevernarrowly or broadly) on the land can maximise their development opportunity in thefairest and most environmentally responsible manner Autochthones perhaps couldchoose which system best accommodates how they relate to the land For example theDraft Land Rights Bill (SA) 1999 whilst never adopted allowed people to choose thetenure system appropriate to their circumstances

Locally designed systems may be more effective in implementation able to betterrespond to the needs of locals Decentralised land management may provide for greaterfreedom at the local level The potential ability of local systems to deliver better systemslsquofrom belowrsquo than those imposed in a lsquoone-size-fits-allrsquo approach may mean a set systemof land tenure or formalisation of land rights does not need to be designed A system oflegitimating claims to territorial rights discards the importance of discourses onformalisation of title Formalising land rights may in fact increase division and findlimited application in rural settings

This does not mean the state has no role The state in the case of localised landmanagement may still retain an overseer role For example autarkous communities whocan devise a system that is workable in accommodating their own and national interests(for example by being able to enter into workable agreements with multinationals) couldbe given greater autonomy The state in this case grants the local community an activerole in managing the presence of foreigners and respects their decisions This type ofsystem is about altering the power relations attached to land governance and wealth apolitical process that allows contestation

by multiple state and societal actors to control the nature pace extent and direction of accessto control over and use of landhellip[requiring] reformist contributions from both state andsocietal actors and so necessarily combines perspectives on formal and informal official andnon-official and state and non-state institutions and processes It is necessarily carried out atmultiple levels of the polity national and local and even international (Borras and Franco2010 23)

Furthermore in this way multinationals could be made to respect local customs and thestate and if they prove unwilling players and rather abusers of process and people ie aplunderer they could be cut-out of the process by the local people This is particularlyrelevant because states may pass the responsibility for providing social welfareprogrammes to the corporations which work in the extractive industries

Yet the power implications of this shift in approach are unlikely to gain it adherents amonggovernments except in rhetorical terms As many a revolutionary has asserted power isnever willingly handed down from above but must be seized from below Reaffirmation ofthe strength diversity and flexibility of local practice hellip provides one step in the argumentfor bringing about such a shift in power (Toulmin in the foreward to Benjaminsen andLund 2005)

Differentiated territorial rights

Multiple and overlapping autochthonous ties to a parcel of land may be accommodatedby recognising differentiated territorial rights Vandenberg (1998 8) developed theconcept of differentiated property rights lsquoin which the rights to own and otherwise deal inproperty are differentiated between societal groups It includes differential treatment by

the legal systems over property matters differential rights regarding the control ofphysical propertyrsquo

The idea behind differentiated property rights is to change the balance of power tolevel the playing field by giving power where none was recognised before Vandenbergdevelops his idea from North (1990) who argues lsquoInstitutions are not necessarily or evenusually created to be socially efficient rather they or at least the formal rules are createdto serve the interests of those with bargaining powerrsquo (North 1990 cited in Vandenberg1998 8) The idea is to create differential rights to deal with the unequal bargainingpositions in which different players are put most particularly to try to compensate theweaker position of financially poorer or socially outcast players Vandenberg bases hisdifferentiator on societal groups though it could be applied on any basis where one partyis economically or politically weaker than another and where their rights to land orterritory and resources are unjustifiably and unfairly threatened or impeded by a muchstronger player In this way the balance of power vis-agrave-vis extractive companies can bechallenged While differentiated territorial rights are different to differentiated propertyrights because territorial rights are not synonymous with property rights the same shiftsin the balance of power could apply using the same or similar differentiator

International companies hellip are often urged to act in the national interest as if it and theprivate interest were closely similar But why is it assumed that an impersonal corporatepersonality should be the agent of the national interest of the investor country and not of thehost country The answer surely lies not in the investor countryrsquos higher moral claim to thecompanyrsquos loyalty but in its stronger political claim There is no permanent basis for thisstronger political claim It reflects a historical asymmetry in private-public power relation-ships which lies at the root of many current problems particularly in the sphere of privateinternational investment in natural resources (Morse 1965 414)

Furthermore in countries where there is international investment in raw materials theforeign investor and host government often differ on their perceptions of common interestand fair treatment particularly where it regards lsquothe acquisition retention and use ofpropertyrsquo(376) Foreign investment in raw materials has made lsquolittle contribution toeconomic growth and development in the host countriesrsquo (380)

Recognising and codifying differentiated or alternative forms of territorial rightstogether with a complementary right to contest and changing the legal boundaries overrights to land may alter the bargaining positions of weaker populationsrsquo (and their states)vis-agrave-vis extractive companies Additionally any political weight that backs the interestsof a multinational and creates unfair bargaining power as between the state andcorporation may be reclaimed by the state by placing restrictions on use of land

Governments and their agencies may hellip control the use of land in a more general way byimposing legal constraints on the range of choice open to the private decision maker andthey may support or encourage certain forms of land use by intervention in the market or byfinancial inducements (Mather 1986 96)

Shareholder responsibility and the structure of industry means international companieswill never act solely for the interests of the host state and its peoples But the recognitionand use of such laws and restraints may compel foreign multinationals to become dualagents in action to act not just in the interests of their shareholders but in the interests ofthe host countryrsquos people also

72 AL Carleton

In the authorrsquos opinion developing such rights will not deprive foreign extractiveindustries of the incentive to extract because of western demand for oil and minerals (andother resources) that African lands hold The needs of energy-consumptive populationsmean that extraction will be an ongoing occurrence even if western governments have togive their companies subsidies lsquoDevelopmentrsquo is the rhetoric used to alter the balance ofpower in favour of high energy-consuming states and foster the perceived need to enticeforeign investment and extractive industry Rather improving and recognising territorialrights may provide the means by which African peoples at both the government andlocal level are able to constructively contest the exploitation of minerals and oil byextractors Establishing a basis for autochthonous communities to establish and contestrights over valuable land through developing territorial rights and rights of contestationmay increase the chances of the value extracted from the land being shared moreequitably

Once these rights have been formalised a framework needs to be put in place foreither contesting or mediating competing claims to territory both before mining tenementsare issued and where lsquovisitorsrsquo have already been granted access Locals could be assureda right of participation before any mining contract has been signed and such a right couldinclude prior-informed consent and negotiation Any claim for contesting already-awarded land contracts and asserting territorial claims could be made to a national courtWhere problems of judicial independence mean that there is no national court willing orable to hear claims then there could be the ability to appeal to a court of a third nation oran international court both problematic and worthy of additional research though onlysuggested as possible avenues here Criteria for legal standing and appropriate forumwould need to be addressed as would the issue of asset recovery Of course non-legalisticsolutions may also be relevant

Conclusion

Legitimised systems of plunder leave people dispossessed alienated and devoid ofcultural attachment Mineral-rich countries are heavily indebted as their people areexploited and their national natural resource wealth leaves the land by globalised systemsof hegemony Plunder and the dispossession of land and identity which follows is asignificant contributing factor in providing the motivation for violent resistance secessionand self-determination Providing a mechanism to constructively contest could betterprovide a peaceful solution to challenging the dominant bargaining position of the globaland local extraction hegemony Recognising and legitimating multiple and overlappingalternative ontologies of land is the first step to a more constructive contestation systemLegitimate autochthonous claims could form the basis as to who has territorial andconsequent contestation rights In mineral areas any agreement or negotiated outcomecould recognise multiple legitimate layers of interest in the land and resources Whereextractive industry has already encroached onto the territory of autochthonous peoplesand been legitimated through licences contestation could be through making a territorialclaim based on autochthony

AcknowledgementsThe author gratefully acknowledges Cambridge University for the opportunity to carry outindependent research All views expressed herein are those of the author alone

Notes1 Wilkinson (2008 295) hopes to develop the ways of testing whether policy changes in India

historically alters legitimate group identities2 Conversely the ability of a multinational to file a successful case against a hostile host

government in either ICSID WTO or other bilateral trade agreement dispute settlement body isan indicator for the ability of multinationals to contest the conduct of poor governing hostgovernments

3 African Commission Report (2005 13) Also cited in Van Genugten (2010 33)4 This research lists many examples of dispossession and armed violence against indigenous

peoples associated with mineral operations including the operation of the Carajas GrandeProject in Brazil operation of the Grasberg mine in West Papua operation of the Pangunacopper mine in Bougainville operation of the Kelian gold mine in Indonesia operation of theMurowa diamond mine in Zimbabwe operation of the Inco mine in Guatemala operation ofthe Sulawesi mine in Indonesia operation of the Tintaya copper mine in Peru (this listimplicates BHP Billiton CVRDVale and Rio Tinto Downey Bonds and Clark 2010 430432 433 435)

5 This report states lsquoThe large-scale exploitation of oil by foreign companies operating in thetheatre of war in southern Sudan has increased human rights abuses there and has exacerbatedthe long-running conflict in Sudan a conflict marked already by gross human rights abuses ndashtwo million dead four million displaced since 1983 ndash and recurring famine and epidemicsrsquo

6 See African Commission Report (2005)7 Inter-American Court of Human Rights the case of Mayagna (Sumo) Awas Tingni Community

v Nicaragua 31 August 2001 judgement Ser C no 79 at 149 cited in Holder (2008 17)The case stated lsquoThe close ties of indigenous peoples with the land must be recognised andunderstood as the fundamental basis of their cultures their spiritual life their integrity and theireconomic survival For indigenous communities relations to the land are not merely a matterof possession and production but a material and spiritual element that they must fully enjoyrsquo

8 Vandenberg (1998 9ndash17) notes that the failure to redress colonially enforced stigma andseparation coupled with intense desire to take back property rights at independence became afight for property with the colonially induced stigma and separation attached and the reason tobenefit onersquos own ethnicity over another (see also Wily 2008)

9 Harvey (2006) says lsquoAccumulation by dispossession is about plundering robbing other peopleof their rightsrsquo

10 For an examination of state differential power relations in the international political order seeDowney Bonds and Clark (2010 417ndash445)

11 For problems of corruption associated with state-owned extractive enterprise see Weinthal andLuong (2006 35ndash53)

12 In the DRC in 2006 the transitional government was accused of interfering in the negotiationof mining contracts which led to large-scale looting of the countryrsquos natural wealth as a largeshare of the profits went to international companies and a minimal amount to the state-ownedGeacutecamines see Global Witness (2006a)

13 See Human Rights Watch (2005) AngloGold Ashanti has been notorious for its complicity inabuse in its gold concession in Mongbwalu eastern DRC (see also Global Witness 20052006a 2009 21ndash22 Human Rights Watch 2006)

14 Obi examines the occurrence of this and the extractionndashdispossessionndashresistance paradigm inrelation to the Niger Delta (Obi 2010a 221 see also Harvey 2006)

15 In Alberta Inc v Katanga Mining Ltd before the English High Court Queenrsquos BenchDivision (Commercial Court) 5 November 2008 The English High Court deemed theSupreme Court of Katanga in the DRC not an appropriate forum for the resolution of thedispute because there was no guarantee that justice would be done due to the lack ofinfrastructure per Tomlinson J

16 Abi Dymond analyst at Scottish Catholic International Aid Fund who wrote the reportoutlining the issue quoted in Kemp (2010) It stated that in Zambia lsquohellipthere is a lot ofanger and resentment from the people in the copper belt who see these huge sums beingmade by the mining companies They are aware of what has happened to the price of

74 AL Carleton

copperrsquo(see also Downey Bonds and Clark 2010 423) In relation to gold see GlobalWitness (2006a)

17 lsquoIn a state of disorder G engages in predation rather than earning his income fromsafeguarding the possessions of others he seizes them The citizens for their part stop payingtaxes and rearm either so as to raid or to defend themselves against raids by others Becausethe citizens reallocate resources from leisure and production to military activities prosperitydeclines Living in disorder People are insecure and poorrsquo (Bates 2008 25)

18 In fact some concession contracts may include clauses that stipulate that the extractor mustprovide health and education facilities to the local people in the vicinity of the concession or inthe concession Social benefits by way of community projects were undertaken by a companyinvolved in the Endorois case Centre for Minority Rights Development (Kenya) and MinorityRights Group International on behalf of Endorois Welfare Council v Kenya This may be seenas the state selling its legal accountability and responsibility for its people to the extractorswhich have no liability and responsibility for the civilians otherwise (see Clover 2005 362)

19 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of theCongo v Uganda para 242 per Tomlinson J) Although Uganda ignored the judgement thatcompensation be paid the significant fact was that plunder was seen as a crime and was foundto have taken place

20 Alberta Inc v Katanga Mining Ltd para 28 per Tomlinson J21 See generally Xanthaki (2004)22 National Coalition of Aboriginal organisations Statement to the WGIP 1988 in Morgan

(2004 489)23 National Congress of American Indians and Native American Rights Fund Statement to the

WGDD 2002 cited in Morgan (2004 489)24 Mamdani (2002) identified that during colonial times in Uganda peoples were classified either

according to race or according to ethnicity not both Only races had full citizenship rightsAfter independence the situation was reversed At the same time two different legal systemsexisted one for races and another (customary law) for ethnicities (494ndash495) In Uganda rightsof citizenship for example the right to vote were often not accorded to indigenouspeoples (496)

25 Local elites may also take more benefits compared to other citizens However local elites maybe autochthonous thus complicating the issue This paper only addresses local citizenry vis-agrave-vis foreign elite

26 Ethnogeography is a term Kolers (2009 3) borrows from a geography subdiscipline articulatedby Blaut Kolers uses the term to identify lsquoculturally specific conceptions of landrsquo lsquoAnethnogeography is a culturally specific ontology of land and our relationship to itrsquo (59)

27 Exclusivity often fails because owners of rights do not always bear all the costs particularly thecost of public goods like environmental preservation or social stability Tietenberg (2006)argues that markets are concerned about future profitability and that without foresightexternalities will eventually impinge future profits I argue that it depends on the length ofthe telescope Owners are interested in securing economic advantage over time but 100 years inthe future the current owner has no interest in the profitability or productivity of the propertythese concerns have been passed to another owner (Tietenberg 2006 68 and 140)

28 This is essentially the same view as classical economists (see Alao 2007 17)29 This follows the belief that lsquo[i]nsecure tenure is often associated with exploitative forms of land

use in which the occupier seeks to reap as much as he can from the land irrespective ofpossibly harmful effectsrsquo (Mather 1986 49)

30 This paper explores culture and identity and its relationship to geography as a significant factorin civil war production

Note on ContributorAlexandra L Carleton is an independent scholar who has previously practised law in Australia andthe UK The author gratefully acknowledges Cambridge University for the opportunity to carry outindependent research Alexandra can be contacted at alexcarletonlycoscom

ReferencesAlao Abiodun 2007 Natural Resources and Conflict in Africa The Tragedy of Endowment

Rochester University of Rochester PressAlberta Inc v Katanga Mining Ltd [2008] EWHC 2679 [2009] ILPr 14Bates Robert H 2008 ldquoProbing the Sources of Political Orderrdquo In Order Conflict and Violence

edited by Stathis N Kalyvas Ian Shapiro and Tarek Masoud 17 Cambridge CambridgeUniversity Press

Benvenisti Eyal 1996 ldquoCollective Action in the Utilization of Shared Freshwater The Challengesof International Water Resources Lawrdquo The American Journal of International Law 90 (3) 384ndash415 doi1023072204064

Boslasharings Morten and Kevin C Dunn 2007 African Guerillas Raging against the Machine BoulderCO Lynne Rienner

Boix Carles 2008 ldquoCivil Wars and Guerilla Warfare in the Contemporary World Toward a JointTheory of Motivations and Opportunitiesrdquo In Order Conflict and Violence edited by Stathis NKalyvas Ian Shapiro and Tarek Masoud 197 Cambridge Cambridge University Press

Borras Saturnino M Jr and Jennifer C Franco 2010 ldquoContemporary Discourses and Contestationaround Pro-poor Land Policies and Land Governancerdquo Journal of Agrarian Change 10 (1) 1ndash32 doi101111j1471-0366200900243x

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of theCongo v Uganda) ICJ 19 December 2005 General List No 116

Cederman Lars-Erik 2008 ldquoArticulating the Geo-cultural Logic of Nationalist Insurgencyrdquo InOrder Conflict and Violence edited by Stathis N Kalyvas Ian Shapiro and Tarek MasoudCambridge Cambridge University Press

Centre for Minority Rights Development (Kenya) and Minority Rights Group International onbehalf of Endorois Welfare Council v Kenya 2762003 African Commission on Human andPeoplesrsquo Rights 4 February 2010 Accessed March 18 2014 httpwwwrefworldorgdocid4b8275a12html

Clairmonte Frederick 1960 In Chomsky on Anarchism 2005 edited by Noam Chomsky 11Edinburgh AK Press

Clover Jenny 2005 ldquoLand Reform in Angola Establishing the Ground Rulesrdquo In From theGround Up ndash Land Rights Conflict and Peace in Sub-Saharan Africa edited by Chris HugginsPretoria Institute for Security Studies

Custers Raf Jeroen Cuvelier and Didier Verbruggen 2009 Culprits or Scapegoats Revisiting theRole of Belgian Mineral Traders in Eastern DRC Fatal Transactions IPIS wwwipisresearchbedownloadphpid=261

Downey Liam Eric Bonds and Katherine Clark 2010 ldquoNatural Resource Extraction ArmedViolence and Environmental Degradationrdquo Organization amp Environment 23 (4) 417ndash445

Furley Oliver ed 1995 Conflict in Africa London Tauris Academic StudiesGlobal Witness 2005 Under-mining Peace Tin ndash The Explosive Trade in Cassiterite in Eastern

DRC Global Witness httpwwwglobalwitnessorglibraryunder-mining-peace-tin-explosive-trade-cassiterite-eastern-drc

Global Witness 2006a Digging in Corruption Fraud Abuse and Exploitation in KatangarsquosCopper and Cobalt Mines Global Witness httpwwwafricafederationnet07diggingpdf

Global Witness 2006b Widespread Fraud and Abuse in Katangarsquos Copper and Cobalt MinesPress Release 5 July 2006 Global Witness httpwwwglobalwitnessorglibrarywidespread-fraud-and-abuse-katangas-copper-and-cobalt-mines

Global Witness 2009 Natural Resource Exploitation and Human Rights in the DemocraticRepublic of Congo 1993 to 2003 A Global Witness Briefing Paper Global Witness httpwwwglobalwitnessorgsitesdefaultfilespdfsdrc_exploitation_and_human_rights_abuses_93_03_enpdf

Handley Antoinette 2008 Business and the State in Africa Economic Policy-making in the Neo-liberal Era Cambridge Cambridge University Press

Harvey David 2006 ldquoA Conversation with David Harvey (Interview)rdquo Logos A Journal ofModern Society and Culture 5 (1) httpwwwlogosjournalcomissue_51harveyhtm

Harvey David 2007 ldquoNeoliberalism as Creative Destructionrdquo The Annals of the AmericanAcademy of Political and Social Science 610 (1) 21ndash44 doi1011770002716206296780

76 AL Carleton

Holder Cindy 2008 ldquoCulture as an Activity and Human Right An Important Advance forIndigenous Peoples and International Lawrdquo Alternatives Global Local Political 33 (1) 7ndash28doi101177030437540803300102

Human Rights Watch 2003 Sudan Oil and Human Rights Brussels Human Rights Watch httpwwwhrworgreports2003sudan1103sudanprintpdf

Human Rights Watch 2005 The Curse of Gold Democratic Republic of Congo New YorkHuman Rights Watch httpwwwhrworgreports20050601curse-gold

Human Rights Watch 2006 DR Congo Army Abducts Civilians for Forced Labor Soldiers ForceScores to Work for Them in Iturirsquos Gold Mines and Fields Press Release October 15 2006 HumanRights Watch httpwwwhrworgnews20061015dr-congo-army-abducts-civilians-forced-labor

Jovanović Miodrag A 2005 ldquoRecognizing Minority Identities through Collective Rightsrdquo HumanRights Quarterly 27 (2) 625ndash651 doi101353hrq20050019

KalinWalter 2000 ldquoArticle 1F(b) Freedom Fighters Terrorists and the Notion of Serious Non-politicalCrimesrdquo International Journal of Refugee Law 12 (1) 46ndash78 doi101093ijrl12suppl_146

Kelly Donald R and Bonnie G Smith eds 1994 Proudhon What Is Property Cambridge Textsin the History of Political Thought Cambridge Cambridge University Press Reprinted in 2002

Kemp Jackie 2010 Mining Giants Continue Plundering Billions of Dollars from Zambia PressRelease 30 September 2010 24-hour Breaking News on Zambia

Kolers Avery 2009 Land Conflict and Justice A Political Theory of Territory CambridgeCambridge University Press

Lund Christian 2006 Land Rights and Land Conflicts in Africa A Review of Issues andExperiences Paper presented at Land Rights and Land Conflicts in Africa Monday October 9Copenhagen Danish Institute for International Studies

Mamdani Mahmood 2002 ldquoAfrican States Citizenship and War A Case-studyrdquo InternationalAffairs 78 (3) 493ndash506 doi1011111468-234600263

Mather A S 1986 Land Use Harlow Longman Scientific amp TechnicalMorgan Rhiannon 2004 ldquoAdvancing Indigenous Rights at the United Nations Strategic Framing

and Its Impact on the Normative Development of International Lawrdquo Social and Legal Studies13 (4) 481ndash500 doi1011770964663904047330

Morse Chandler 1965 ldquoPotentials and Hazards of Direct International Investment in RawMaterialsrdquo In Natural Resources and International Development edited by Marion Clawson367ndash414 Baltimore MD The Johns Hopkins University Press

Ndahinda Felix Mukwiza 2007 ldquoVictimization of African Indigenous Peoples Appraisal ofViolations of Collective Rights under Victimological and International Law Lensesrdquo Interna-tional Journal on Minority and Group Rights 14 (1) 1ndash23 doi101163138548707X181539

Niemann Michael 2007 ldquoWar Making and State Making in Central Africardquo Africa Today 53 (3)20ndash39 doi102979AFT200753320

Obi Cyril I 2010a ldquoOil Extraction Dispossession Resistance and Conflict in Nigeriarsquos Oil-richNiger Deltardquo Canadian Journal of Development Studies 30 (1ndash2) 219ndash236

Obi Cyril 2010b ldquoOil as the lsquoCursersquo of Conflict in Africa Peering through the Smoke andMirrorsrdquo Review of African Political Economy 37 (126) 483ndash495 doi101080030562442010530947

Palmer Robin 2004 ldquoOxfam and Land in Post-conflict Situations in Africa Examples fromZimbabwe Mozambique South Africa Rwanda and Angolardquo Paper presented for ACTSConference on Land Tenure and Conflict in Africa Prevention Mitigation and ReconstructionICRAF Complex Gigiri December 9ndash10

Pelican Michaela 2009 ldquoComplexities of Indigeneity and Autochthony An African ExamplerdquoAmerican Ethnologist 36 (1) 52ndash65 doi101111j1548-1425200801109x

Raeymaekers Tim 2002 Network War An Introduction to Congorsquos Privatised War Economy IPIShttpsdocsgooglecomviewerurl =http3A2F2Fipisresearcheu2Fdownloadphp3Fid3D60

Raeymaekers Tim and Jeroen Cuvelier 2002 Contributing to the War Economy in the DRCEuropean Companies and the Coltan Trade IPIS wwwipisresearchbedownloadphpid=197

Report of the African Commission on Human and Peoplesrsquo Rights Working Group of Experts onIndigenous PopulationsCommunities 22 April 2005 UN Doc ECN4Sub2AC52005WP3Accessed March 18 2014 httpwww2ohchrorgenglishissuesminoritiesgroup11sessionhtm

Ross Michael 2003 ldquoThe Natural Resource Curse How Wealth Can Make You Poorrdquo In NaturalResources and Violent Conflict Options and Actions edited by Ian Bannon and Paul Collier17ndash42 Washington DC The World Bank

Sack Robert David 1986 Human Territoriality Cambridge Cambridge University PressSack Robert David 2003 A Geographical Guide to the Real and the Good New York RoutledgeShort Damien 2007 ldquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in

Australiardquo Current Sociology 55 (6) 857ndash876 doi1011770011392107081989Stavropoulou Maria and Luke T Lee 1996 ldquoThe Question of a Right Not to Be Displaced Are

International Institutions Doing their Jobrdquo Proceedings of the Annual Meeting (AmericanSociety of International Law) 90 549ndash558

The Enough Project Team with the Grassroots Reconciliation Group 2009 A ComprehensiveApproach to Congorsquos Conflict Minerals Strategy Paper April 24 2009 Lead researchers wereDavid Sullivan of the Enough Project and Sasha Lezhnev of the Grassroots ReconciliationGroup httpwwwenoughprojectorgpublicationscomprehensive-approach-conflict-minerals-strategy-paper

Thomas Caroline and Peter Wilkin eds 1999 Globalization Human Security and the AfricanExperience Critical Security Studies London Lynne Rienner

Tietenberg Tom 2006 Environmental Natural Resource Economics 7th ed Boston MA PearsonEducation

Toulmin Camilla Foreword to Tor A Benjaminsen and Christian Lund eds 2005 Securing LandRights in Africa London Frank Cass

Vandenberg Paul 1998 ldquoRisk Ethnicity and Property Rights Towards a Political Economy ofAfricarsquos Institutionsrdquo Working Paper Series No 84 Department of Economics School ofOriental and African Studies University of London London

Van Genugten Willem 2010 ldquoProtection of Indigenous Peoples on the African ContinentConcepts Position Seeking and the Interaction of Legal Systemsrdquo American Journal ofInternational Law 104 (1) 29ndash65

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Wilkinson Steven I 2008 ldquoWhich Group Identities Lead to Most Violence Evidence from IndiardquoIn Order Conflict and Violence edited by Stathis N Kalyvas Ian Shapiro and Tarek Masoud271ndash300 Cambridge Cambridge University Press

Wily Liz Alden 2001 ldquoReconstructing the African Commonsrdquo Africa Today 48 (1) 76ndash99doi102979AFT200148176

Wily Liz Alden 2008 ldquoWhose Land Is It Commons and Conflict States Why the Ownership ofthe Commons Matters in Making and Keeping Peacerdquo The Rights and Resources Initiativehttpwwwrightsandresourcesorgpublication_detailsphppublicationID=853

Xanthaki Alexandra 2004 ldquoIndigenous Rights in the Russian Federation The Case ofNumerically Small Peoples of the Russian North Siberia and Far Eastrdquo Human RightsQuarterly 26 (1) 74ndash105 doi101353hrq20040012

78 AL Carleton

Abstract

Self-determination

Conclusion

AcknowledgementsThe author gratefully acknowledges Cambridge University for the opportunity to carry out independent research All views expressed herein are those of the author alone

Acknowledgements

References

Predation and dispossession in Africa enabling constructivecontestation over natural resources

Alexandra L Carleton

Department of Land Economy Cambridge University Cambridge UK

(Received 22 April 2012 final version received 3 September 2013)

The lsquoright to contestrsquo is an internationally recognised principle embodied in theInternational Covenant on Civil and Political Rights (ICCPR) The issue posited bythis paper is whether and how contestation can occur in resource-rich countries inAfrica constructively or destructively Constructive contestation in Africa isparticularly important in relation to natural resources those under the land on theland and perhaps most importantly in relation to the land itself Without the politicaland social spaces to contest decisions regarding those resources constructivelyviolence or other forms of destructive contestation may ensue In Africa the problemof contestation is exacerbated by the predation of resources ndash its illicit taking by moredominant parties ndash and consequent territorial dispossession loss of culture andidentity and the often justified feelings of betrayal and anger If one accepts thatcontestation in a constructive manner ought to be provided for the questions then ariseas to who can legitimately contest and on what basis

Keywords autochthony predation constructive contestation

The first man who having fenced in a piece of land said lsquoThis is minersquo and found peoplenaiumlve enough to believe him that man was the true founder of civil society From how manycrimes wars and murders from how many horrors and misfortunes might not any one havesaved mankind by pulling up the stakes or filling up the ditch and crying to his fellowsBeware of listening to this impostor you are undone if you once forget that the fruits of theearth belong to us all and the earth itself to nobody (Jean-Jacques Rousseau Discourse onInequality 1754)

The lsquoright to contestrsquo is an internationally recognised principle embodied in theInternational Covenant on Civil and Political Rights (ICCPR) Constructive contestationin Africa is particularly important in relation to natural resources those under the land onthe land and perhaps most importantly in relation to the land itself Land or territory hasbeen called lsquothe most critical flash-point of conflictrsquo (Cain 2004 quoted in Palmer 2004)being both instigator and continuer of conflict Cain notes

It has often been said that land is the basic natural resource Over the span of human historyman has drawn most of his sustenance and much of his fuel clothing and shelter from theland Land has been manrsquos habitat and living space land has been a matter of life and deathof survival or starvation (Cited in Mather 1986 1)

Email alexcarletonlycoscom

Journal of Contemporary African Studies 2014Vol 32 No 1 56ndash78 httpdxdoiorg101080025890012014900309

copy 2014 The Institute of Social and Economic Research

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Self-determination

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References

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Self-determination

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Self-determination

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Self-determination

Conclusion

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Conclusion

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Self-determination

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Self-determination

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Self-determination

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Self-determination

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Abstract

Self-determination

Conclusion

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Abstract

Self-determination

Conclusion

Acknowledgements

References

Documents

Predation and dispossession in Africa: enabling constructive contestation over natural resources