DAMS, DISPLACEMENT, AND COMMUNAL COMPENSATION: A LESOTHO HIGHLANDS LEGAL CASE

Abstract

This article addresses the major problems created for people and communities who are displaced by the construction of large dams. We focus specifically on the Lesotho Highlands Water Project, (LHWP), one of the largest hydroelectric and water transfer projects of its kind in Africa.  The LHWP  was implemented in 1986, when a treaty was signed between Lesotho and South Africa to undertake a series of large-scale dams, reservoirs, transfer tunnels and related infrastructure, in a vast multi-phase scheme.  LHWP Phase I ended in 2007, having received numerous awards for its engineering components. However, there were and there remain problems with Phase I, in terms of its failure to restore livelihoods of project-affected communities to the point where they were at the time of the first disturbance. Some 644 households were resettled during the course of Phase I, with some cash and in-kind compensation paid to those households. A total of 27,400 people were adversely affected by the project.   However, while the project-affected people downstream of the two dams, Katse and Mohale, were promised communal compensation, they have yet to receive that compensation. The Lesotho Highlands Water Authority (LHDA) is now arguing that the downstream communities affected by the project should have development projects implemented for them in a top-down fashion by the Lesotho Highlands Development Project authorities.  The communities, for their part, want to be paid the compensation that they were promised under the Treaty and the Order, and under the various compensation policies developed during the course of the project. We examine a legal case brought against the Lesotho Highlands Development Authority in the High Court of Lesotho by the Khabang Lejone Multipurpose Co-operative Society (CIV/APN/370/2012) which was heard on 21 July 2015 and a judgment delivered on 10 September 2015.  The Lesotho Highlands Development Authority has complied only partially with the current order. After considerable delay, the Lesotho Highlands Development Authority (LHDA) complied with part of the court order by paying one third of the compensation owed for the years 2003 to 2012 as ordered by the court. The balance of the compensation due for this period was paid in late 2020.  Payment of the annual amount owing for the years 2013 to today, has not yet been paid, apparently because of a change in payment policy adopted by the LHDA. This article considers the legality of such arbitrary changes in policy and the rights of the affected communities entitled to compensation. It concludes with some reflections on the nature of compensation, and it contemplates whether current legal structures for the administration of compensation in Lesotho are compliant with emerging legal norms and recommended international best practice.