A National Compensation Policy Matters: why consolidation of the existing compensation provisions to constitute a new uniform framework is principal

Part 4

Photo by Tatenda Mapigoti on Unsplash

1. Introduction

Consolidation or adoption of a uniform government policy and regulatory framework on such matters as compensation for expropriation is not a phenomenon unique to Lesotho. Many other countries in consideration of the complexities in the processes have adopted uniform comprehensive frameworks. As regards compensation for expropriation in Lesotho, there are a number of legislations which feature compensation as a section within a myriad of other unrelated provisions. Some of these legal instruments are project specific and no matter their fairness or nobleness cannot be applied in contexts they were not intended for. Some of the statutory pieces even run parallel or seek to amend the constitution without necessarily being specific. In essence, there is no uniformity in the laws when it comes to compensation.

There exists a feeling of prejudice against non-uniformity of laws much less the non-existence of a universal and uniform law. Notwithstanding the existence of these statutes which feature compensation for expropriation, the expropriating authorities have been accused of giving inadequate and insufficient amount of compensation. To this end, the scales of justice tilt towards adoption of a uniform compensation policy and legal framework as a matter of public interest.

The principal threat running through the need for consolidation of existing frameworks to inform a universal and uniform framework is creation of a conducive environment and setting up efficient mechanisms. This will engender a healthy social, judicial and financial environment which will address effectively compensation issues and ancillary matters during the expropriation process. In order to address the social, judicial and financial aspects of the expropriation process as far as the victims of the expropriation processes are concerned, there is a need to ensure that their fundamental rights are well considered and protected.

One of the means to this end is for the government to secure a uniform and an extensive but comprehensive policy and legal framework free from the limitations and inadequacies that has placed expropriation and compensation under the spotlight for the wrong reasons. Uniformity of the policy framework under which compensation will be prescribed will influence adoption of a legislative enactment and this enhances accessibility and clarity of the law and legal processes.

2. Uniformity

One key aspect of designing and adopting a consolidated policy and regulatory framework on compensation during expropriation processes is uniformity. The primary advantage is that those affected in any whatsoever would know to find the mechanisms and solutions to their grievances. As such, a uniform compensation policy framework would have real practical effects on those affected by the expropriation process.

It is a fulltime occupation of a lawyer to keep abreast with minute developments in the law. However, it remains a difficult where the relevant provisions applicable to a particular issue are scattered in many statutes. As a result, a relevant section to a specific issue may escape even a qualified and well trained legal practitioner when hidden amongst a whole lot of provisions that do not relate directly to the issue at hand.

What adds to the complexity is the dynamic nature and the fluidity of the law – that is to say the law changes. These changes occur when amendments to provisions within fairly unknown laws are enacted. This creates a situation where certain amendments to particular sections which may deal with compensation within a particular act of parliament whose title is not compensation is amended with X, which will then be amended with Y which will also be amended with Z etc. Furthermore, changes to a uniform and universal framework are easy to track.

The ability to create uniformity will streamline the requisite compensation framework and processes. It is time and resource saving to have a single ship sailing to a desired destination than to have many ships sailing in the same direction when one would suffice. In this regard, uniformity and universality takes precedence over the current system which either has many ships in the same direction or no universal ship to take the crew to a desired destination. Where there is a ship, in the case of Lesotho Highlands Development Authority (LHDA) Act, 1986 for example, it would carry only that luggage within the confines of its legal prescripts and nothing else even if it had the capacity to carry more.

3. Accessibility

Access to legal information is one of the keys to the city of democracy. Consolidation of this information enables the citizens to exercise, assert and enforce their fundamental rights. An informed citizenry participates meaningfully in process with direct and adverse effects on them. This enables productive discussions which enhances the efficiency of the government.

James Madison, the architect of the United States of America Constitution and the 4th President of the United States of America is credited to have said, “Knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” This is one of the key reasons why such essential people-centred policy formulations as the compensation policy needs to be accessible to those it applies to in a consolidated and an all-encompassing piece. It is paramount to ensure that legal frameworks that have a direct impact on the rights of the citizens are readily accessible as a uniform object.

Consolidating the existing provisions on compensation from different instruments to design and develop a more comprehensive and uniform object consecrates the right to information which makes access to the policy and legal framework easier. Openness and transparency as foundational principles to a democratic dispensation are greatly enhanced. In principle, freedom of expression which citizens are entitled to in expropriation and compensation negotiations has as one of its facets the freedom to seek and receive information.

Development of an accessible uniform cross-cutting compensation framework will promote participation of citizens’ involvement in the decision making and setting up priorities from an informed stance. The continuing acrimonious conflict between the vulnerable people affected by capital intensive projects and the expropriating authorities stem from inaccessibility and lack of information about the guiding framework as well as the rights and responsibilities that stem from such a framework.  

In the preceding paragraphs, the importance of making the policies and laws accessible to citizens was outlined. The next question or issue would be on government’s interest in adopting a uniform cross-cutting framework in order to make it accessible. In a nutshell, the socio-economic need to strengthen institutions and to address inequalities, injustice, unfairness and inefficiencies calls for structural reforms. In this context, the compensation policy is one key framework to change the socio-economic fabric where the people and businesses operate. An adoption of a uniform and cross cutting compensation policy framework as part of the structural reforms will balance the economic interest in undertaking developmental projects and citizen’s welfare. In this way, the economy will at least be better suited to realise its growth potential in a balanced way. The government’s undertaking to adopt a compensation framework will mitigate the growing unrest and instability in the issues around compensation.

4. Conclusion

The essay has outlined the dire need for the government to consolidate the existing compensation provisions in order to design and adopt a more comprehensive compensation policy/framework in consideration of two (2) factors – uniformity and accessibility. One of the reasons explored is that without uniformity, those who are not advantaged will find it hard to know their rights regard being had to the scattered provisions in a lot of legislations or complete inexistence of policy and/or legislative framework. This also makes it hard for even a seasoned legal practitioner to keep track of the changes. This is prejudicial to the vulnerable. On the other hand, accessibility emphasises the need to have an open and transparent constitutionally democratic system that is responsive to the needs of the most vulnerable and disadvantaged citizens.

Under the Department of Social Justice, the Transformation Resource Centre (TRC) identified a problem with the compensation after expropriation scheme and it is advocating for structural reforms in that regard. That is to say, TRC is promoting and advocating for designing and adoption of policies and regulatory framework to ensure that the compensation schemes for expropriation are fit and able to realise the need to balance the economic need to improve the infrastructure or to engage in development projects without leaving the most vulnerable worse off. To this extent, the TRC has a draft National Compensation Policy ready to assist the government. The current essay is one of the 5 essays to be published as a series for 5 consecutive weeks. The purpose of these essays is to analyse and explain how expropriation of land and property are undertaken in an effort to clarify the dire need for formulation of a uniform comprehensive framework to influence stable, efficient and fair compensation practices.