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Reconstituting the role of law in development-induced displacement and resettlement : lessons from Uganda's.. Kangave, Jalia 2011

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 RECONSTITUTING THE ROLE OF LAW IN DEVELOPMENT-INDUCED DISPLACEMENT AND RESETTLEMENT: LESSONS FROM UGANDA’S        BUJAGALI HYDROELECTRIC PROJECT    by    JALIA KANGAVE       A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF    DOCTOR OF PHILOSOPHY  in  THE FACULTY OF GRADUATE STUDIES  (Law)     THE UNIVERSITY OF BRITISH COLUMBIA  (Vancouver)   July 2011       © Jalia Kangave, 2011   ii ABSTRACT  Imagine that one morning you wake up and learn that the place you have called home for generations is no longer going to be home. Your house will be demolished and in its place, government or a private developer will construct a dam or put up a residential complex. You have no right to say no because government has eminent domain over your land (or a legal right to compulsorily acquire it in the public interest).   Now imagine that the development will also result in the acquisition of the land on which you grow crops for subsistence and trade. It will close off access to the river where you fetch water for daily household use and catch fish for home consumption and for trade. In other words, this is the land where you live and where you obtain your means of living.     Lastly, imagine that the project area also contains your social, cultural and spiritual being. It is where over time, you have built social capital consisting of relatives and friends: a community network that you can count on for daily survival. It is where your ancestors are buried, the religious and spiritual institutions you subscribe to are located and your cultural ties entrenched.   This is no fiction. And it is not abstract. It is the everyday reality of the millions of people displaced by mega projects such as dams that are built in the name of development. There is a rich body of literature that explores the issue of development-induced displacement and its impact on communities. This thesis builds on that conversation by situating its analysis in law. Throughout the thesis, I trace the silences of law on the one hand and its aggressiveness on the other hand to determine the ways in which formal legal tools have enabled or disabled Project Affected Communities to secure their interests. I also explore how understanding dam projects from an investment perspective can further the understanding of the challenges faced by these communities when striving for inclusive laws and policies. Uganda’s Bujagali Hydroelectric Project is used as the case study for the analysis.               iii PREFACE  Ethics Approval for this research was obtained from the University of British Columbia’s Behavioural Research Ethics Board. The Approval Certificate Number is: H09-02038.                            iv TABLE OF CONTENTS ABSTRACT ........................................................................................................................... ii PREFACE ............................................................................................................................. iii TABLE OF CONTENTS ..................................................................................................... iv LIST OF ABBREVIATIONS .............................................................................................. vi ACKNOWLEDGMENTS ................................................................................................... vii DEDICATION ...................................................................................................................... ix INTRODUCTION: Through a Legal Lens: Analyzing the Role of Law in Facilitating the Inclusion (and Exclusion) of Project-Affected Communities in Decisions Relating to Large Dam Projects........................................................................................................... 1 I. Background to the Research Problem .............................................................................. 1 II. Research Questions ....................................................................................................... 10 III. Thesis Contribution ..................................................................................................... 12 IV. Chapter Arrangement .................................................................................................. 14  CHAPTER 1: Laying the Foundation: Constructing Large Dams, Defining Project- Affected Communities and Establishing the Domestic Legal Framework .................... 19 I. Introduction .................................................................................................................... 19 II. Providing Context: A Brief History of Uganda and Background to the Project ........... 22 III. Constructing Meanings and Establishing Boundaries: Who are “Project Affected Communities”? .................................................................................................................. 32 IV. Displacement under Uganda’s Domestic Legal Framework ....................................... 41 V. Conclusion .................................................................................................................... 50  CHAPTER 2: Setting the Theoretical Groundwork: A TWAIL Critique of International Law and Development ................................................................................. 52 I. Introduction .................................................................................................................... 52 II. The Foundation: A Synthesis of TWAIL and Critical Development Theory ............... 54 III. A TWAIL Critique of International Law and Development: Thematic Components . 61 IV. The Reconstruction Project ......................................................................................... 78 V. Methods of the Study .................................................................................................... 80  CHAPTER 3: Explaining the Failure of Resettlement Initiatives in Development Projects: A Critical Analysis of the World Bank’s Policy on Involuntary Resettlement  ............................................................................................................................................... 92 I. Introduction .................................................................................................................... 92 II. OP 4.12 on Involuntary Resettlement and the Impoverishment, Risks and Reconstruction Model: Landmarks in Resettlement Policy .............................................. 98 III. DIDR: Understanding the Theoretical-Practical Disconnect .................................... 107 IV. Reincorporating Policy Analysis: Rhetoric and Reality in OP 4.12 ......................... 113   v V. Protecting Indigenous Peoples: Operational Policy 4.10 ............................................ 121 VI. Excluding the “Plenty Vulnerable” through Universalizing the Indigenous       Mission ............................................................................................................................ 130 VII. Conclusion: An Inquiry into the Legal Implications of OP 4.12 ............................. 138  CHAPTER 4: The Legal Impact of the Operations of the World Bank Inspection Panel: Establishing Patterns of Inclusion and Exclusion of Project-Affected Communities ...................................................................................................................... 148 I. Introduction .................................................................................................................. 148 II. The World Bank Inspection Panel: Composition, Operation and Procedures ............ 150 III. The Inspection Panel as a Tool of Inclusion .............................................................. 155 IV. The Limited Capability of the Inspection Panel as a Tool of Inclusion: A Legal Perspective ....................................................................................................................... 161 V. Writing Resistance into the Operations of the Inspection Panel ................................ 172 VI. Conclusion ................................................................................................................. 183  CHAPTER 5: The Bujagali Project as an Investment Project: Understanding Involuntary Resettlement from an Investment Perspective .......................................... 187 I. Introduction .................................................................................................................. 187 II. Neo-liberalism and the Internationalization of Private Property Rights ..................... 193 III. Privatization: Laying the Foundation for Protection of Investment Interests ............ 204 IV. Institutionalizing the Electricity Sector ..................................................................... 209 V. The Impact of Foreign Investment Contracts: An Analysis of Power Purchase Agreements ...................................................................................................................... 213 VI. In Lieu of a Conclusion: Why Affected Communities Need More Protection under  the Law ............................................................................................................................ 228  CHAPTER 6: Recommendations: Increasing Protection of Affected Communities through Legal Reform ....................................................................................................... 242 I. Introduction .................................................................................................................. 242 II. Recommendations Relating to the Reform of Formal Legal Infrastructure ............... 248 III. Implementation of Recommendations ....................................................................... 281 IV. Preamble to the Conclusion: The Role of Resistance ............................................... 284  CONCLUSION .................................................................................................................. 286 I. The Role of Law in DIDR: A Recap ............................................................................ 286 II. Explaining the Limited Public Resistance against the Bujagali Project: Some Preliminary Thoughts ...................................................................................................... 287  BIBLIOGRAPHY .............................................................................................................. 307     vi LIST OF ABBREVIATIONS  Affected Communities Project Affected Communities APRAP Assessment of Past Resettlement Activities and Action Plan BIT    Bilateral Investment Treaties Bank    World Bank Bujagali Project  Bujagali Hydroelectric Project (the Project) CDAP    Community Development Action Plan DIDR    Development-Induced Displacement and Resettlement FDI    Foreign Direct Investment Government   Government of Uganda IBA    Impact and Benefit Agreements IBRD    International Bank for Reconstruction and Development ICSID International Centre for Settlement of Investment Disputes IDA    International Development Association IFC    International Finance Corporation IFI    International Financial Institutions IMF    International Monetary Fund Inspection Panel  World Bank Inspection Panel (the Panel) MIGA    Multilateral Investment Guarantee Agency Management   Management of the World Bank NAPE    National Association of Professional Environmentalists OD    Operational Directive OP    Operational Policy PPA    Power Purchase Agreement PERD Act   Public Enterprises Reform and Divestiture Act RAP    Resettlement Action Plan ERA    Electricity Regulatory Authority SAPs    Structural Adjustment Programmes   TWAIL   Third World Approaches to International Law UEB    Uganda Electricity Board UEDCL   Uganda Electricity Distribution Company Limited UEGCL   Uganda Electricity Generation Company Limited UETCL   Uganda Electricity Transmission Company Limited             vii ACKNOWLEDGMENTS  I thank the Almighty Allah for giving me good health, patience, courage and the perseverance to make it this far.       I have worked with an amazing group of professors whose intellectual guidance and commitment to this project has been invaluable. I am greatly indebted to my supervisor, Professor Natasha Affolder, for her great mentorship, enthusiasm and constant availability for counsel. My supervisory committee members: Professors Ljiljana Biuković, Catherine Dauvergne and Obiora Chinedu Okafor have enriched this thesis through their thought- provoking comments, meticulousness and their diverse expertise and experiences. I also thank my university examiners, professors Karin Mickelson and Matthew Evenden, and my external examiner, Professor Balakrishnan Rajagopal, for their constructive feedback.   I owe great thanks to the Faculty and Staff of UBC Law. I thank the Associate Dean of Graduate Studies, Professor Doug Harris, for providing great leadership. I am grateful to Ms. Joanne Chung, our Graduate Programme Advisor, for her dedication to the program and the support she provided me throughout the years. I also express my gratitude to the staff of the UBC Law Library who provided research assistance. Many thanks also to the Law Foundation of British Columbia, Faculty of Law, Professor Emeritus Charles Bourne (UBC Faculty of Law), the Liu Institute of Global Issues and the University of British Columbia who provided the funding that made this research possible. I thank the Faculty of Graduate Studies for providing administrative support throughout the years.  The discussion in the thesis has been greatly enriched by the contributions of those I interviewed. I owe great thanks to members of the Project-Affected Community at Naminya Resettlement Area, the Malindi Dam-Affected Community and Jaja Budhagaali for sharing their stories with me and allowing me to pass them on. I am grateful for the insights provided by Mr. Kenneth Kakuru (Kakuru & Company Advocates/Greenwatch Uganda); Dr. Emmanuel Kasimbazi (Faculty of Law, Makerere University); Engineer Paul Mubiru (Ministry of Energy & Mineral Development); Mr. Oweyegha Afunaduula (National   viii Association of Professional Environmentalists - NAPE); Engineer Dr. Frank Sebbowa (Electricity Regulatory Authority); Mr. Kamese Geoffrey (NAPE); Ms. Noreen Nampewo (NAPE) and Mr. Angelo Izama (The Monitor). Thank you all very much for making the time to respond to my inquiries.  Professor Kim Brooks (Dalhousie University) has been a mentor and friend for years and I continue to be indebted to her for her intellectual guidance and support. I am grateful for the many friendships that I have made at UBC, which have made the past four years memorable. Special thanks to Ronke, Mosope and Claudia for their constant encouragement and support. To my countless dear friends in different parts of the world, thank you for encouraging me and providing the much-needed support.  My family has always been my rock and I can never thank them enough. Mummy: for being the source of my courage, strength and providing infinite love. My dad: for the support that you have provided over the years. My amazing siblings: Didi, Natasha, Nina, FT, Sarah, Moses and Big Ish, for believing in me always, loving me and making me laugh. Khaila, Jamal, Adam and Amira: for being such huge bundles of joy. And Ebrah: for being my sounding board and making me laugh. To my Vancouver family: Annette, Shiva, Esau, Shawn, Asher and Isaac – your selflessness and kindness have provided a home away from home. You have made this a truly memorable journey.                    ix DEDICATION   To the loving memory of my grandfather: Hajji Musa Kasule (Abii)   and to my mother: Hajjati Nuruh Luttah Kasule, forever my inspiration.     1 INTRODUCTION  Through a Legal Lens: Analyzing the Role of Law in Facilitating the Inclusion (and Exclusion) of Project-Affected Communities in Decisions Relating to Large Dam Projects   I. Background to the Research Problem  Uganda is experiencing an acute energy crisis that has resulted in frequent electricity rationing, diverted government finances from other public expenditure to subsidize the energy sector, threatened the means of livelihood of many, led to erratic increases in electricity tariffs, and increased agitation as those affected become anxious about how long the crisis will last and how much will be lost in the process.1 As a major part of the solution to the crisis, the Government of Uganda (the Government) – in close consultation with the World Bank (the Bank) – seems to have found its answer in the construction of a large hydropower plant: the Bujagali Hydroelectric Project (the Bujagali Project/the Project). The Bujagali Project is a proposed 250 megawatt run-on-the-river hydroelectric plant designed to provide a reliable source of electricity to customers on the national grid and to expand connectivity to the grid.2 Described as the largest private sector investment in East Africa, project proponents contend that once it is commissioned, the Project will provide a cheaper source of energy that will fuel economic growth and development in the country.3                                                    1 See World Bank, “Bujagali Hydropower Project: About the Project”, online: The World Bank Group< http://www.worldbank.org/bujagali> [About the Project]; World Bank, “Bank Management Response to Request for Inspection Panel Review of the IDA-Financed Uganda Third Power Project (Credit 2268-UG) and the Proposed Bujagali Hydropower Project” online: World Bank<http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/BUJ_Management_Response _09_12_01.pdf> at 1[2001 Management Response to Request for Inspection]; Christopher Gore, “Electricity and privatisation in Uganda: The origins of the crisis and problems with the response” in David A McDonald, ed., Electric Capitalism: Recolonising Africa on the Power Grid (South Africa: HSRC Press, 2008) at 359 [Electricity and Privatisation in Uganda].  2 World Bank, About the Project Ibid. 3 World Bank, 2001 Management Response to Request for Inspection supra note 1 at vi.    2 Critics argue otherwise. They maintain that the generated electricity will be exclusive to a few Ugandans because of its anticipated high price and its inability to expand connectivity as widely as its proponents claim.4 Consequently, a majority of Ugandans will remain without access.5 Opponents also argue that the Bank and the Government did not adequately explore cheaper alternatives such as solar, geothermal and wind, before approving the Project.6 Additionally, they maintain that the Bujagali Project has a number of adverse impacts on local communities including lack of proper resettlement plans for those displaced7 and the threats caused by the Project to the rich cultural and spiritual heritage of the Basoga.8 Furthermore, they opine that the Project has numerous adverse environmental impacts including submerging highly productive land on the river banks, destroying endemic fisheries and submerging highlands of high biodiversity.9 Lastly, they argue that by cordoning off the spectacular Bujagali Falls, the Project will kill the budding tourism industry.10                                                  4 International Rivers, “Stop US-based AES Electric, Ltd. From Damming Uganda’s Bujagali Fall” online: International Rivers<http://www.internationalrivers.org/en/africa/stop-us-based-aes-electric-ltd-damming- ugandas-bujagali-falls> [Stop AES Electric].     5 Ibid.    6 National Association of Professional Environmentalists (NAPE), “Lodging A Claim on the Proposed Bujagali Hydropower Dam and Interconnection Projects in Uganda” (March, 2007) online: World Bank Inspection Panel                       <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/InspectionPanelClaim.pdf> [2007 Request for Inspection] at 5; NAPE, A Spot Check on Compliance and Performance of World Bank and African Development Bank in Uganda’s Energy Sector: Success or Failure Story? (Uganda: NAPE-(FOE), 2009) at 1 [A Spot Check on Compliance].  7 NAPE, 2007 Request of Inspection Ibid. at 11 & 12; NAPE, The Unresolved Issues in the Bujagali Project in Uganda: A Lack of Transparency and Public Participation (National Association of Professional Environmentalists, June 2007) at 4 [The Unresolved Issues in the Bujagali Project].  8 NAPE, A Spot Check on Compliance supra note 6 at 9 & 10. 9 Tom Nevin, “Battle lines drawn over Bujagali dam” African Business (June 2007) at 57. See also Lori Pottinger et. al., “Letter to World Bank: Outstanding Concerns on Bujagali” (April, 2007) online: International Rivers< http://www.internationalrivers.org/en/africa/bujagali-dam-uganda/letter-world-bank-outstanding- concerns-bujagali>. 10 NAPE, The Unresolved Issues in the Bujagali Project supra note 7 at 4. In fact, in April 2010, a local newspaper reported that Bujagali Falls would cease to exist in January 2011 as construction of the power plant neared completion. It also noted that the site at Bujagali Falls had been famous for white water-rafting, bird watching, site seeing and educational trips. See David Mugabe, “Bujagali Falls to Close in January 2011” (9   3 While the Bujagali Project attracts numerous angles of contestation,11   this thesis focuses on its impact on communities living around the project area i.e. project-affected communities (Affected Communities). Specifically, it inquires into the manner in which law has been employed to facilitate the inclusion or exclusion of the interests of Affected Communities. It also compares the legal framework governing the interests of these communities with that established to protect the proprietary interests of the private investors that construct and operate the dams that cause displacement.  Extant literature about large infrastructure projects such as hydropower plants frequently analyzes these projects from two main perspectives: a “dams and development” perspective on the one hand and an investment perspective on the other hand.12 Dam literature largely concentrates on the social and environmental impacts of dam construction, economic benefits (or the lack thereof) of dams, and the process of decision-making, particularly the mechanisms put in place to ensure that the different stakeholders are represented in the decision-making process.13                                                                                                                                                      April 2010) online: The New Vision <http://www.newvision.co.ug/D/8/13/715734>; NAPE), 2007 Request for Inspection supra note 6 at 5.   At the centre of “dams and development” discourse are “people”, “the environment” and a conflict between traditionally weak parties (such as Affected Communities) and powerful actors (such as multinationals, governments and 11 See Chapter One, Part II.  12 The phrase ‘dams and development’ as used here refers loosely to that literature that makes the case for or against the construction of dams, and literature that illustrates the manner in which grassroots have participated in dam debates – largely through social movements. The ‘investment perspective’ on the other hand concentrates primarily on literature that highlights the concerns of investments in large infrastructure projects.    13 See generally World Commission on Dams, Dams and Development: A New Framework for Decision Making – The Report of the World Commission on Dams, (Earthscan Publications Limited, November 2005), online: The World Commission on Dams <http://www.dams.org//docs/report/wcdreport.pdf> [Dams and Development] and Sanjeev Khagram, Dams and Development: Transnational Struggles for Water and Power (Cornell University Press, 2004).    4 international organizations, particularly, International Financial Institutions (IFIs)).14 This literature is also largely dominated by anthropologists, sociologists, environmentalists, political scientists, and engineers. Where legal scholars have interacted with these projects, it has often been in the context of human rights15 and the expanding role played by extra- legal methods such as resistance.16 It is important to keep this human rights debate alive. However, on its own, the language of human rights is insufficient in contesting the manner in which such projects distribute and allocate rights and responsibilities.17    The other related – yet often unconnected part of the conversation – takes place in the literature on investments in large infrastructure projects. Because this discourse views these projects first as investments (and increasingly, as private investments) before (or to the exclusion of) anything else, this literature takes a largely property-centred approach. This is the case whether the literature supports or contests the projects in question. For example, those who support such projects lobby for the protection of the proprietary interests of investors on grounds of: the huge amounts involved, the ability of investors to deliver more efficiently than governments and the fact that these investments release government                                                  14 It is observed here that the apparent divide between traditionally weak parties and those considered powerful is a complex one. As has been noted elsewhere, neither of these actors is homogenous in thought or action and there are often internal struggles and conflicts between these actors. In other words, hegemony is constantly shifting and power shifts exist even within what have often been considered traditionally weak parties. See William F. Fisher, “Development and Resistance in the Narmada Valley” in William F. Fisher, ed., Toward Sustainable Development: Struggling Over India’s Narmada River (Armonk: M.E. Sharpe, 1995) at 15 and Dolores Koenig, “Enhancing Local Development in Development-induced Displacement and Resettlement Projects” in Chris De Wet (ed.) Development-Induced Displacement: Problems, Policies and People 18 Studies in Forced Migration (Berghahn Books, 2006) at 118 & 119.  15 See, for example, Upendra Baxi, “What Happens Next is Up To You: Human Rights at Risk in Dams and Development” (2001) 16 American University International Law Journal at 1507 – 1529. 16 See generally Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge University Press, 2003).  17 David Kennedy, “‘Laws and Developments’: The ‘Rule of Law’ As Development” in John Hatchard & Amanda Perry-Kessaris (eds.) Law and Development: Facing Complexity in the 21st Century (United States: Cavendish Publishing, 2003) at 18.    5 finances to other public expenditures.18 They dislocate “people issues” in favour of a healthy business climate. In practice, investors themselves often incorporate Affected Communities only as part of their risk-factor analysis and primarily to satisfy conditions for project approval. The investment literature that problematizes such projects resides more in the genre of literature problematizing investments in general (not dams in particular).19   This literature contests the biased protection of private proprietary interests and the role of law in legitimizing that protection.    Ultimately, these two bodies of literature often talk past each other by studying these projects in independent and mutually exclusive camps – as though they dealt with two totally unrelated aspects. The literature is undeniably invaluable in articulating the challenges and proposing solutions for the issues identified in each category. Yet for the case of involuntary displacement and resettlement, taking such unipolar perspectives invariably underplays the fact that in reality, these tensions – of “the human” and “the property”20                                                  18 Colin Kirkpatrick, David Parker and Yin-Fang Zhang, “Foreign Direct Investment in infrastructure in developing countries: does regulation make a difference?” (2006) 15:1 Transnational Corporations; Sheoli Pargal, “Regulation and private sector investment in infrastructure: Evidence from Latin America” (2003) World Bank Policy Research Working Paper 3037; Anton Eberhard, “Infrastructure Regulation in Developing Countries: An Exploration of Hybrid and Transitional Models” Public-Private Infrastructure Advisory Facility Working Paper No. 4 <http://www-wds.worldbank.org>.  – coexist in the same space and dictate the ordering of different interests. In other words, without interacting simultaneously with these two often conflicting tensions, 19 See, for example, Anthony Anghie, “International Financial Institutions” in Christian Reus Smit (ed.) The Politics of International Law (Cambridge University Press, 2004) at 217 – 237; M. Sornarajah, The International Law on Foreign Investment 2d ed. (Cambridge University Press, 2004); Anthony Anghie, “Time Present and Time Past: Globalization, International Financial Institutions and the Third World” (2000) 32 N.Y.U J. Int’l L & Pol. at 243 – 290. 20 The distinction between “the human” and “the property” as used here should not be interpreted as suggesting that displaced communities do not have property interests. In fact, property interests are central to the livelihoods of these communities. Consequently, “property” as used here should be seen as highlighting the emphasis that (international) law has placed on protecting a particular type of property, being the proprietary interests of foreign private investors.      6 without deliberately acknowledging that the tensions overlap in decision-making, the analysis of the challenges to and proposals for improvement become somewhat removed from the everyday realities and complexities of such projects. Therefore, for purposes of dealing with the issue of involuntary resettlement, instead of analyzing these projects as either dam projects or investments in large infrastructure, this thesis studies them for what they actually are: investments in dam (and other development) projects. By breaking the walls between the two, the thesis hopes to:  (a) understand the tensions surrounding the two perspectives and how these tensions influence the ordering of different interests; (b) establish whether the knowledge gleaned from such a merger is helpful in developing systems that incorporate the interests of Affected Communities.   To achieve the above objectives, the thesis uses law as its analytical tool. In practice, law often serves a dual – but conflicting - purpose. On the one hand, it has the potential to further the interests of the less powerful by serving as a “protective shield”.21 For example, the international legal order has sometimes empowered Third World states against the domination of the more powerful Western countries.22 At the same time, it has created infrastructure through which Third World peoples can contest the marginalization emanating from their own governments.23                                                  21 B.S. Chimni, “Third World Approaches to International Law: A Manifesto” in Anthony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Okafor (eds.) The Third World and International Order: Law, Politics and Globalization (Martinus Nijhoff Publishers, 2003) at 72.  For example, as illustrated in Chapter Three, soft 22 B.S. Chimni, “International Institutions Today: An Imperial Global State in the Making” (2004) 15:1 European Journal of International Law at 6.  23 Ibid.    7 law has been employed to insist on resettlement plans even in countries that lack regulatory frameworks on the issue of involuntary resettlement.24   Also, the recommendations contained in Chapter Six of this thesis utilize legal tools to propose a framework in which Affected Communities can benefit from development projects.  On the other hand, it is important to acknowledge that law is rarely a neutral arbiter.25 However, by claiming neutrality, rationality and objectiveness, it is often able to legitimate dominant ideas.26 Too frequently, law is the (unjust) process through which ideology is imposed as reality and unsanctioned intervention promoted in the name of even- handedness.27 Law is also the apparatus utilized to snatch (economic) power from Third World peoples and states to place it in the hands of seemingly rational, apolitical and technical IFIs.28 Consequently, if left uncontested, law often buttresses hegemony.29                                                        24 See generally Chapter Three. See also World Bank, “Operational Manual: Operational Policy (OP) 4.12” (December, 2001 - as updated in March, 2007) online: World Bank< http://web.worldbank.org> [OP 4.12]; World Bank, “Operational Manual: Operational Policy (OP) 4.10” (July, 2005) online: World Bank<http://web.worldbank.org> [OP 4.10]. 25 James Thuo Gathii, “Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy” (2000) 98 Mich. L. Review  at 2025 [Neoliberalism, Colonialism and International Governance]; Ibironke T. Odumosu, “Locating Third World Resistance in the International Law on Foreign Investment” (2007) 9 International Community Law Review at 440.  26 Chimni, “Third World Approaches to International Law: A Manifesto” supra note 21 at 60. 27 Gathii, “Neoliberalism, Colonialism and International Governance” supra note 25 2026.  28 Chimni, “Third World Approaches to International Law: A Manifesto” supra note 21 at 52; Anghie, “International Financial Institutions” supra note 19 at 223.  See also Sundhya Pahuja, “Beheading the Hydra: Legal Positivism and Development” 2007 (1) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/elj/lgd/2007_1/pahuja> at 7; Chimni, “International Institutions Today: An Imperial Global State in the Making” supra note 22 at 1 & 2. 29 Trubek & Galanter argue, for example, that “Legal changes ostensibly designed to reform major areas of social life and achieve developmental goals may in fact be a form of symbolic politics, the effect of which is not to cause change but to defeat it by containing demands for protest, thereby strengthening, rather than weakening groups committed to the status quo.” David M. Trubek & Marc Galanter, “Scholars in Self- Enstrangement: Some Reflections on the Crisis in Law and Development Studies in the United States” (1974) Wisconsin Law Review at 1084.   8 Ultimately, whatever its role (whether positive or negative) in a particular project, the centrality of law cannot be denied. Law is the politics through which the interests of competing parties are formalized and secured. By focussing on a legal approach, this thesis does not claim that the boundaries between law and other issue areas such politics or economics are clear. Neither does it seek to displace or underplay the role of traditional political or economic theories in explaining the issues under review. Importantly, it is conscious of the fact that law is not a substitute for the economically and politically driven development framework but rather, one through which the distribution of those resources is contested and realised.30 As such using a legal lens makes it possible to magnify the interplay of these different factors and actors.31 I speak of a lost law in terms of international law on the basis that the moorings of international law should lie in peace, fairness and justice to the people of the world … It has been cut off from these moorings in the last few years as a result of the rise of doctrines of neo-conservatism with its emphasis on economic liberalism, democratic governance and use of force to achieve these objectives, if necessary, for the benefit of dominant groups within dominant states. As a result, the true basis of the law has been subverted so that the prosperity of a few could be callously achieved. Clever arguments are made to justify the position. Caught in  And while the thesis draws attention to the negative aspects of formal legal tools, it does not, by such action, deny the ability of law to reform. To this end, this thesis aspires for a framework in which the greed of a selected few is replaced by the ethics and morality of legal justice. Sornarajah opines, for example:                                                  30 See Kennedy, “‘Laws and Developments’: The ‘Rule of Law’ As Development” supra note 17 at 18. 31 Ibid. at 19 & 20. Kennedy notes at 26 that “… the struggle for development itself – the struggle to grow the pie in the first place – is also and unavoidably a place of political and economic choice. Choices which are contested. Building a legal regime involves choices, choices implicate distributive objectives which contribute to development in different ways.” While Kennedy proposes an analysis of political and economic theories (as opposed to the laws on investment reviewed in this thesis), an analogy can be drawn here between his argument and the one made in this thesis. Kennedy posits that it is important to study economic theories to understand the manner in which law distributes resources. Similarly, it is suggested here that it is necessary to study the investment perspective of dams (through studying the legal infrastructure affecting investment) in order to understand how different interested are represented and what drives the decision-making process.   9 this vortex of greed, the element of the normative content of law has gone missing in international law.32    In a bid to uncover the traces of legal (in)justice, the critique in this thesis is loosely divided into three sections (found in Chapters 3, 4 and 5): an investigation of the role of international legal norms in resettling and rehabilitating Affected Communities, an examination of the adequacy of the institutional frameworks that have been established to protect the interests of Affected Communities and how these compare with those established to protect the interests of private investors. In the end, the thread that stitches all the pieces together is the documentation of the hegemonic character of formal legal institutions and how this hegemony can be reversed and reconstructed for the benefit of Affected Communities. My hypothesis is that by studying the domestic and international legal infrastructure governing resettlement issues on the one hand, and understanding the manner in which investment policy largely foregrounds economic liberalization on the other hand, we are able to locate how different interests are prioritized and to design strategies targeted at reconstructing and expanding the margins of inclusion.    The Bujagali Project serves as a case study for wider questions relating to development, law and hegemony. This research is timely because in addition to other large hydropower projects being planned in the country,33                                                  32 M. Sornarajah, “A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment” (2006) 6 International Environmental Agreements at 331.   Uganda promises to host an increasing number of privately sponsored development projects in the coming years, especially given the recent 33 See Chapter One Part II.    10 discovery of oil wells in the country.34 Also, large infrastructure and development projects in neighbouring Kenya and Tanzania – and in fact in most of Africa – would benefit from the analysis in this thesis. At the same time, the relevance of the thesis extends to development projects worldwide. While the past thirty years or so have witnessed a considerable decrease and even decommissioning of dam projects in most developed and some developing countries,35 there continue to be other huge development projects that displace large populations.36   Invariably, the questions asked here and the solutions proposed will likely differ by geographical location. However, the central notion of demanding a rethinking of the role of law in guiding social change and promoting counter-hegemonic struggles remains relevant worldwide.   II. Research Questions This thesis poses the question: In what manner and to what extent has interacting with international and national legal norms and institutions facilitated the inclusion or exclusion                                                  34 Oil exploration activities intensified in 2006 when in January of that year, an Australian oil exploring company – Hardman Resources Limited – discovered oil in western Uganda. In January 2009, two other companies (Tullow Oil and Heritage Oil) that had been involved in the exploration since the initial discovery found what promised to be perhaps the largest oil wells in Africa in western and northern Uganda. See Daily Trust, “Africa’s largest oil wells discovered in Uganda”, online: Daily Trust<http://www.dailytrust.com/index.php?option=com_content&task=view&id=2973&Itemid=15:testset>. Also, in the Government’s 2009/2010 Budget speech, the Minister of Finance noted that petroleum reserves had grown from 300 million barrels of oil in 2006 when the first discovery of oil was made to 2 billion barrels of oil at the end of 2008/2009. See Syda N. M. Bbumba, “Budget Speech: Financial Year 2009/10” (June, 2009) online: Ministry of Finance, Planning & Economic Development <http://www.finance.go.ug/docs/Budget%20Speech_FY2009_10_Final.pdf> at 21 & 22.  35 In 2004, for example, Khagram observed that “Over the past quarter century, opponents of big dams have contributed to the reform, postponement, cancellation, and even decommissioning of these projects in industrialized countries, such as the United States, Sweden, and France; in the former Communist bloc, Soviet successor states and Eastern Europe; and across the third world from Chile to Namibia to Nepal.” Khagram, Dams and Development: Transnational Struggles for Water and Power supra note 13 at 2 & 3.  36 Examples of such projects include mineral, oil and gas exploration projects that often displace vulnerable members of communities such as First Nation/Aboriginal communities (indigenous groups); and large housing and commercial development projects which displace the poor.    11 of the interests of Affected Communities in decisions relating to development projects? More specifically:   a) Why is it that, despite the existence of a long-standing World Bank policy on involuntary resettlement, Affected Communities continue to be adversely affected by development-induced displacement and resettlement (DIDR)? Specifically, why have the communities displaced by the Bujagali Project not adequately benefited from the application of this Bank policy?   b) What is the legal status of the World Bank Inspection Panel (the Inspection Panel/the Panel) and how does this status affect the findings that it makes? What does this mean for the findings that the Panel made in respect of the Bujagali Project? c) How do investment decisions, including the conclusion of contracts and enactment of investor-friendly legislation, help us understand, first, how Affected Communities are marginalized, and second, how marginalization can be eliminated or at least reduced?  d) What is the importance of examining and interrogating projects such as the Bujagali Project from a Third World legal optic?    The wider questions, which are of great interest, but which are not fully answered by this thesis are: a) How do we explain the continued failure of commercial development projects to improve livelihoods of the poor in the Third World despite the astronomical amounts that have been invested by different parties?   12 b) Given the negative publicity against the Bujagali Project by activist groups, what explains the absence of sustained grassroots opposition to the Project?  III. Thesis Contribution  This thesis contributes to international legal discourse in various ways. First, it extends existing legal analysis of the role that IFIs (such as the World Bank) play in domestic investment and development decisions of Third World countries. Specifically, it locates itself within the rapidly expanding genre of literature known as Third World Approaches to International Law (TWAIL).  As illustrated in Chapter Two, TWAIL scholarship unpacks mainstream international law with the aim of exposing its biases and hegemony on the one hand, and reconstructing it to a counter-hegemonic international law on the other hand. It undertakes both tasks by writing a Third World voice – of both states and peoples – into international law. This thesis adds its voice to TWAIL literature by unpacking the manner in which the Bank, through its policy on involuntary resettlement and its neo-liberal economic policies, may protect the interests of economically powerful actors to the detriment of weak Third World peoples.37   To this end, the thesis develops what it calls ‘A TWAIL Critique of International Law and Development’. Second, by analyzing simultaneously the legal framework governing decisions on investments and dams – or by analyzing dams as investments projects – this thesis produces a nuanced approach to the understanding of the practical realities and complexities involved in designing large infrastructure projects. Christopher Gore has recently explored the                                                  37 See, for example, Anghie, “International Financial Institutions” supra note 19 at 217 – 237.   13 relationship between privatization and the decision to construct the Bujagali Project by arguing that there is an intimate connection between the privatization of Uganda’s energy sector and the Bujagali Project as the preferred response to the country’s electricity crisis.38 the future of the electricity sector did not simply rest on a desire to clean up and improve operational efficiency of the service provider. Public sector reform was part of a much more complex and ambitious vision for sector change reminiscent of the colonial period and the construction of Owen Falls Dam.  He maintains that:  39    Gore’s analysis is insightful in establishing the strong link between neo-liberal policies (such as privatization) advocated by IFIs and the manner in which these policies translate themselves into development projects (such as dams). The thesis draws inspiration from Gore to conceptualize the relationship between investment decisions and the choice of dams as development projects. In addition to expounding on Gore’s work, the thesis distinguishes itself by grounding its discussion in a legal analysis (as opposed to one based principally on the politics of power).40   The discussion does not provide an in-depth inquiry into the important question of whether the Bujagali Project was the right option for addressing Uganda’s energy crisis. Rather, it interrogates the role of law in protecting the interests of the communities affected by the Project by comparing the legal framework governing the latter’s interests with that protecting the proprietary interests of investors.                                                   38 Gore, “Electricity and privatisation in Uganda” supra note 1 at 364.  39 Ibid. at 382.  40 This, of course, is not to suggest that the law is apolitical. In fact, the TWAIL theoretical analysis that is applied extensively in the discussion in this thesis explicitly acknowledges law as a political dialectic. See, for example, Makau wa Mutua, “What is TWAIL?” (2000) American Society of  International Law Proceedings at 31. Yet like TWAILers, the analysis in this thesis will work ‘from the law outwards’ – that is, it will use legal analysis as the starting point to project the politics of law, especially in as far as hegemony is concerned.   14 Third, this thesis is symbolic of the diversity that exists even within the category of states and peoples collectively identified as constituting the Third World. As such, it opposes claims of universality and homogeneity by aligning itself with those who see the Third World as a “chorus of voices”.41   What this means is that there are instances where the thesis acts as a counter-narrative to experiences and solutions found useful in some other parts of the Third World. This is the case, for example, with the way in which the discussion problematizes the construction of indigeneity offered by organizations such as the Bank (Chapter Three). The dynamics of difference is also relevant in making the preliminary observations about why resistance has been largely absent in Uganda (Conclusion).  The study also promises to be policy-relevant and prescriptive. The findings and recommendations made here may be useful to a number of actors including the Government of Uganda and its peoples, social activists in and outside Uganda, international organizations (particularly the World Bank), the investment community and practitioners in international law and development studies.   IV. Chapter Arrangement  The thesis has six chapters and a conclusion. Chapter One lays the foundation for the discussion in the rest of the thesis by providing a brief background on Uganda, describing the Bujagali Project and outlining some of the debates surrounding dam construction. This chapter also contains some definitional work on how Affected Communities have been                                                  41 See Karen Mickelson, “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16 Wisconsin International Law Journal at 360.     15 constructed, highlights some of the concerns raised by these communities and details the domestic legal framework governing development-induced displacement.    Chapter Two is the main theoretical and methodological chapter. It employs a combination of TWAIL and critical development theory to establish a theoretical base for analysing the issues raised in the thesis. TWAIL is pertinent to the present analysis for a number of reasons. First, it demonstrates that law is neither apolitical nor neutral. It is a tool used by dominant groups to suppress alternative ways of knowing and being. Second, TWAIL showcases the diversity within the Third World and rejects views that perceive the Third World as a monolithic entity. This means that laws and policies that have a tendency to treat Third World peoples as a block are bound to be ineffective. Third, it acknowledges the differences between Third World states and Third World peoples, observing that it is not in all instances that these states act in the interests of their peoples. Lastly, TWAIL is a theory of resistance. It maps out the contributions of grassroots movements to the remaking and redefining of international legal norms.   Critical development theory is useful in interrogating development as a construction aimed at furthering the interests of dominant groups in the global society. It exposes the biases of development to explain why development projects are largely unsuccessful. Chapter Two combines the theories of TWAIL and critical development to produce what I refer to as a TWAIL Critique of International Law and Development. It then develops themes around this merger that are used to guide the analysis in the rest of the thesis. This chapter also contains a detailed description on the methodology used for the study.    16 In Chapter Three, one major question is posed: why is it that despite the existence of a long- standing Bank policy on involuntary resettlement, DIDR initiatives have largely failed to benefit Affected Communities? After exploring the various explanations that have been given for the failure of involuntary resettlement initiatives, the discussion examines the provisions of the Bank Policy on involuntary resettlement. The chapter submits that one reason for this failure is that the Bank policy places emphasis on physical resettlement and/or compensation for lost assets, without fully incorporating other long-term impacts of displacement on those affected. It juxtaposes the Bank policy on involuntary resettlement with that on indigenous peoples to illustrate the shortcomings of the former. Lastly, the chapter observes that the legal framework governing the policy is insufficient to secure the interests of Affected Communities.   Following from the Chapter Three analysis of the Bank’s operational policies, Chapter Four analyzes the practical application of these policies through the operation of the Inspection Panel. This chapter critically examines the role and powers of the Panel, particularly whether the latter’s findings are binding on the parties to a claim. This inquiry is helpful in understanding and establishing the extent to which Affected Communities should rely on the Inspection Panel as a mechanism of inclusion. This chapter also traces how resistance has been used to expand the Panel’s margins of inclusion.   Because this thesis promises to introduce an investment perspective to an issue that is too frequently analyzed in non-investment terms, Chapter Five brings investment considerations to the forefront. The introduction of investment issues at this stage in the thesis is   17 strategically designed to follow the previous discussions that place Affected Communities at the centre. It also flows from the fact that the literature discussing DIDR rarely does so from an investment perspective. Consequently, the “non-investment” literature produces the groundwork on which the investment-centred analysis is made. The chapter examines the relevant domestic and international legal infrastructure noting that often, this infrastructure places emphasis on attraction of private investment and protection of proprietary interests of investors. Because investment interests often run counter to the interests of others (including Affected Communities) placing private investors’ interests ahead of all else means that concerns of Affected Communities are normally side-stepped and/or suppressed.  Chapter Six provides recommendations aimed at ensuring that the planning and execution of development projects incorporate and protect the interests of Affected Communities. It proposes changes to the international legal framework including revising the Bank policy on involuntary resettlement and giving the Inspection Panel powers to produce binding decisions. For the domestic level, the chapter provides a detailed proposal on the enactment of legislation on involuntary resettlement and rehabilitation, including some of the important aspects that should be contained in such legislation. Lastly, it recommends that contracts aimed at protecting Affected Communities should be entered into between project developers and affected communities. As an example of such contracts, it suggests Impact and Benefit Agreements. These agreements are increasingly being used to protect local communities in oil, gas and mining projects in countries such as Canada and Australia and in large housing and infrastructure projects in countries such as the United States.     18 The Conclusion raises one question for future inquiry: Why is it that despite the numerous claims made against the Bujagali Project, the project has managed to proceed without as much grassroots resistance as has been witnessed in similar projects in other parts of the Third World?  Some preliminary explanations are offered, which require further investigation. One is the impact that ethnic cleavages may have on mobilizing resistance. The other is the challenge of establishing a culture of resistance in a country which was ravaged by civil and political wars for more than twenty years after independence.             19 CHAPTER 1  Laying the Foundation: Constructing Large Dams, Defining Project-Affected Communities and Establishing the Domestic Legal Framework    I. Introduction  By the end of the year 2000, there were approximately 45,000 large dams worldwide.1 In Africa alone, dams account for approximately one fifth of total electricity generating capacity installed.2 This is a significant proportion when one takes into account the fact that most of the total generating capacity is actually concentrated in a few countries such as South Africa (where 90% of the electricity is generated by coal plants) and North Africa (which has converted oil-fired facilities to run gas).3 Most other African countries rely heavily on hydropower plants that were constructed either during the colonial era or shortly thereafter.4 In Uganda, for example, it is estimated that 99% of the country’s electricity supply is from hydropower.5                                                  1 World Commission on Dams, Dams and Development: A New Framework for Decision-Making (Earthscan Publications Limited, 2000) at ix. Also available online: United Nations Environment Programme<http://www.unep.org/dams/WCD/report/WCD_DAMS%20report.pdf> [Dams and Development].    Elsewhere in the continent, countries are aggressively exploring and exploiting this natural resource. For example, currently, there are more than 2 It is estimated that dams generate 23,000MW of the 115,000MW total installed capacity. See Neil Ford, “Unlocking African hydro potential” (2007) 59:8 International Water, Power & Dam Construction at 11.   3 Ibid. 4 Ibid at 11 - 13. Ford notes that in Ethiopia, for example, hydro contributes 670mw out of the total generating capacity of 713mw on the national grid. Elsewhere, Sharife submits that 60% of Africa is dependent on hydroelectricity as a major source of their energy. See Khadija Sharife, “Damnation for Africa’s big dams?” (April, 2009) African Business at 52.   5 Sharife, “Damnation for Africa’s big dams?” Ibid.  See also Kaijuka who states that hydropower dominates electricity generation in Uganda producing nearly 100 times more than any other source. Elizabeth Kaijuka, “GIS and Rural Electricity Planning in Uganda” (2007) 15:2 Journal of Cleaner Production at 216. However, with the electricity crisis in Uganda, the World Bank recently reported that the country had to move from a primarily hydro-based system of generation in 2005 to a situation in 2007 in which at least 45 per cent of generation relies on thermal plants. See World Bank, Bank Management Response to Request for Inspection Review of the Uganda Private Power Generation Project (Proposed) (2007) online: World Bank Inspection Panel <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/ManagementResponse.pdf> at 3 [2007 Management Response to Request for Inspection].   20 7500MW of large hydropower projects being built in different parts of Africa.6 There is even talk of a mega 45,000MW (US $ 50 billion worth) Grand Inga Project to be constructed in the Democratic Republic of Congo that would dwarf most – if not all – other projects in the continent and supply electricity not only to the continent but also to the Middle East and Europe.7    Each of these statistics has significant implications for the communities living around dam- construction sites. Conservative estimates reveal that each year, about ten million people globally are displaced by large infrastructure projects such as dams, transportation systems or other urban infrastructure.8 In 2000, for example, the World Commission on Dams reported that a total of between 40 and 80 million people worldwide had been displaced by large dam projects.9 Displacement has resulted in landlessness, loss of livelihoods, disruption of social networks, and destruction of cultural and religious sites.10                                                  6 Norman A. Bishop, “The Key to Africa’s Energy Future” (2008) 60:10 International Water, Power & Dam Construction at 19. See also generally, Neil Ford, “Will integration spur dam construction?” (2008) 60:10 International Water, Power & Dam Construction at 10 -12 for the variety of large dam projects planned in different parts of Africa, particularly East Africa.    Quite often, those displaced are also the most marginalized members of society in terms of their (in)ability to contest decisions or bargain for more favourable terms – at least as far as formal legal and political frameworks are concerned.  7 David A McDonald, “Electric capitalism: Conceptualising electricity and capital accumulation in (South) Africa” in David A McDonald, ed., Electric Capitalism: Recolonising Africa on the Power Grid (South Africa: HSRC Press, 2008) at 34 [Electric Capitalism: Conceptualising]; Sharife, “Damnation for Africa’s big dams?” supra note 4 at 52.   8 Ismail Serageldin, “Involuntary Resettlement in World Bank-Financed Projects: Reducing Impoverishment Risks for the Affected People” in Hari Mohan Mathur (ed.) Managing Resettlement in India: Approaches, Issues, Experiences (Oxford University Press, 2006) at 46. See also Michael M Cernea, “Risks, safeguards, and reconstruction: a model for population displacement and resettlement” in Michael M Cernea & Christopher McDowell (eds.) Risks and Reconstruction: Experiences of Resettlers and Refugees (Washington DC: The World Bank, 2000) at 11.  9 World Commission on Dams, Dams and Development supra note 1  at 104.   10 See Part II below and Chapter Three.    21 The central objective of this thesis is to establish the role that law plays in involuntary resettlement initiatives and to suggest legal reforms in this regard. The discussion utilizes the dominant role of IFIs in funding the construction and operation of large dams,11   to suggest changes in the legal framework of these institutions that will enable better protection for Affected Communities. The questions raised in the thesis are as much a call for a rethinking of the role of law as they are a moral or ethical reminder of the need for concerted efforts to fight against hegemonic structures that frustrate the livelihoods of vulnerable members in our global society. These questions are intended to provoke us into rejecting – or at least feeling uncomfortable about – the manner in which legal tools are used to legitimize the over-protection of private capital to the detriment or at the expense of the protection of the interests of vulnerable groups. The issues explored here are thus as relevant to rural Uganda as they are to urban Canada.      This chapter is divided into five parts. Part II provides a brief background to Uganda’s economic, social and political status before embarking on a description of the Bujagali Project. That part concludes with a discussion of some of the debates surrounding dam projects, including the issue of Affected Communities. Part III contains some definitional work on how Affected Communities are constructed and proposes a definition aimed at casting a wider net on who should be included in this definition. This is followed by Part                                                  11 In 1997, for example, Cernea (then a Senior Advisor for Social Policy and Sociology at the World Bank) noted that since 1970, the World Bank had supported the construction of about 350 large dams worldwide. Also, between 1980 and 1995, over 3 million people were displaced by approximately 225 projects that were supported by the Bank. Michael M. Cernea, “African Involuntary Population Resettlement in a Global Context” [Environment Department Papers] Social Assessment Series 045 (February 1997) online: World Bank<http://www-wds.worldbank.org> at 13. Similarly, the 2000 Report of the World Commission of Dams noted that of the World Bank-financed projects that result in displacement, large dams constitute 63%. World Commission on Dams, Dams and Development supra note 1 at 104.    22 IV, which discusses the domestic legal framework governing displacement in Uganda before concluding the chapter in Part V.   II. Providing Context: A Brief History of Uganda and Background to the Project    Uganda is a landlocked country located in East Africa. It is bordered by Kenya to the east, Sudan to the north, Democratic Republic of Congo to the west, and Tanzania and Rwanda to the South. It occupies a total surface area of approximately 241,550 square kilometres, with 199,807 square kilometres being covered by land and the remaining 41,743 square kilometres under water and swamps.12 The country gained independence from Britain in October 1962. Aside from the political strife in the first twenty years following independence, there has been relative peace since the mid-1980s, with the exception of the prolonged civil unrest in northern Uganda, which continues to be an issue of concern.13    Uganda’s population has been growing exponentially with an increase of almost five times between 1948 and 2002.14 As at mid-2009, the population was estimated at 30.7 million people.15                                                  12 Uganda Bureau of Statistics, “General Information on Uganda” online: Uganda Bureau Of Statistics <http://www.ubos.org/onlinefiles/uploads/ubos/pdf%20documents/general%20information%20on%20uganda. pdf>.  With a growth rate of almost 3.2% per annum, it is projected that by 2025, the country will have a population of approximately 55 million people and 130 million people 13 See the Conclusion to this thesis for a brief discussion of civil and political unrest in Uganda in the period following independence.    14 In 1948, the population was estimated at 5 million people. By 2002, it was 24.3million people. See Population Secretariat, National Population Policy for Social Transformation and Sustainable Development (2008) online: Population Secretariat, Ministry of Finance, Planning and Economic Development<http://www.popsec.org/publications_7_3950299347.pdf> at 8 [National Policy for Social Transformation].  15 Uganda Bureau of Statistics, “General Information on Uganda” supra note 12.   23 in 2050.16 As of 2006, there were approximately 65 indigenous communities or ethnic groups in the country.17 Each group has its own customs and norms, and while English is the official language in the country, each indigenous group has its local language.18 At least 31% of the population live below the poverty line.19 Despite the high levels of poverty, however, the country boasts of a fairly stable economic growth rate averaging 6% per annum.20 Agriculture is the major source of income, contributing about 38.5% of Gross Domestic Product and providing a livelihood for about 90% of the population.21    In 2004, Uganda experienced an energy crisis, a situation that worsened in 2006 when electricity supply fell 22 per cent short of demand, thereby necessitating frequent “load shedding”.22                                                  16 Population Secretariat, National Policy for Social Transformation supra note 14 at 8.  As a consequence, for some time now, businesses and other consumers have gone without electricity for several hours every day and at times even for days, leading many businesses either to shift production to times when electricity is available or to rely on 17 Constitution of the Republic of Uganda, 1995 [As at 15 February 2006], Third Schedule [The Constitution].  18 Uganda Bureau of Statistics “The 2002 Uganda Population and Housing Census, Economic Characteristics” (October 2006) online: Uganda Bureau of Statistics  <http://www.ubos.org/onlinefiles/uploads/ubos/pdf%20documents/2002%20CensusEconomicXteristicsAnalyt icalReport.pdf> at 1.  19 Population Secretariat, National Policy for Social Transformation supra note 14 at 3. 20 Uganda Investment Authority, “Why Uganda: Uganda – A Distinctly Pro-Business Climate” online: Uganda Investment Authority < http://www.ugandainvest.com/uia.php?uhpl=why_uganda&&uhpl1=Why%20Uganda>. In fact, in the financial year 2008/09, the country registered a real growth of 7% when compared to the Sub-Saharan average of 2.4%. See Syda N. M. Bbumba, Budget Speech: Financial Year 2009/10 (June, 2009) online: Ministry of Finance, Planning and Economic Development <http://www.finance.go.ug/docs/Budget%20Speech_FY2009_10_Final.pdf> at 2 [2009/10 Budget Speech]. 21 Population Secretariat, National Policy for Social Transformation supra note 14 at 15.  22 International Bank for Reconstruction & Development (IBRD) and International Development Association (IDA), Management Report and Recommendation in Response to the Inspection Panel Investigation Report: Uganda Private Power Generation (Bujagali) Project (2008) online: World Bank Inspection Panel  <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/Management_Report_Nov_7_FIN AL.pdf> at 1 [Management Response to 2008 Inspection Panel Report].  The Bank defines load shedding to mean “A procedure in which parts of an electric power system are disconnected in an attempt to prevent failure of the entire system due to overloading.”   24 high-cost back up generators.23 In 2007, the World Bank reported that the country was losing approximately US$ 6 million with each month that the commissioning date of the Bujagali Project was delayed.24 As of December 2009, government estimated that it was spending approximately US$ 50 million25 every year to subsidize the electricity sector.26    The electricity crisis has been attributed to a number of factors27 including an 8 per cent increase in electricity demand that resulted in a surpassing of the supply; a drastic fall in water levels at Lake Victoria,28 which affected the generation capacity at the two existing hydropower plants; 29 inefficiency in the distribution system that resulted in losses of both a technical (e.g. transmission losses) and non-technical (e.g. power theft and illegal connections) nature;30                                                  23 World Bank, 2007 Management Response to Request for Inspection supra note 5 at 3.  delays in commissioning additional generation capacity; and an increase in world petroleum product prices that resulted in an increase in the cost of 24 Ibid. 25 This estimate is based on Bank of Uganda exchange rates of December 1 to 31 of 2009. The rates during that month were somewhere between Uganda Shillings 1,800 – 1900 to the US dollar. For purposes of the estimation, I have used an exchange rate of Shs 1,850 to the US dollar. See Bank of Uganda, “Financial Markets: Major Exchange Rates 2009 (December)” online: Bank of Uganda <http://www.bou.or.ug/bouwebsite/opencms/bou/collateral/download_archive.html?path=/bou/collateral/inter bank_forms/&title=Financial%20Markets&subtitle=Major%20Foreign%20Exchange%20Rates&restype=Bou InterbankAvgRate&secname=2009&year=2009&month=Dec> [Financial Markets]. 26 Interview of Engineer Paul Mubiru (Commissioner, Ministry of Energy & Mineral Development) (24 November, 2009) at Ministry of Energy Offices, Kampala, Uganda.  27 See generally Christopher Gore, “Electricity and privatisation in Uganda: The origins of the crisis and problems with the response” in David A McDonald, ed., Electric Capitalism: Recolonising Africa on the Power Grid supra note 7 at 359[Electricity and privatisation in Uganda]; World Bank, “Bujagali Hydropower Project: About the Project” online: The World Bank Group <http://www.worldbank.org/bujagali> [About the Project]; World Bank, 2007 Management Response to Request for Inspection supra note 5 at 2. 28 The fall in water levels was attributed to a number of factors including drought, excessive irrigation and overuse by electricity generation. As a consequence of the low water levels, generation capacity is reported to have reduced significantly from 300MW to 135MW. Gore, Ibid. at 361.  29 Between August 2006 and 2007, for example, the actual generation capacity at Nalubaale-Kiira was 120MW instead of the installed capacity of 380MW. See The Inspection Panel, “Investigation Report – Uganda: Private Power Generation (Bujagali Project (Guarantee No. B0130-UG)” (2008) online: World Bank <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/FULL_September_2_2008_FINAL _Red.pdf> at 16 [2008 Report of the Inspection Panel].  30 In 2002, the total average system losses in Uganda, including technical and non-technical were at 41.5% when compared to an international average of 12%. See Gore, “Electricity and privatisation in Uganda” supra note 27 at 361.   25 alternative thermal sources. It should also be noted that the political crises of the 1970s and 1980s left public infrastructure in such a poor state31 that once relative peace was restored and the economy started booming, demand for electricity quickly surpassed supply.32   As early as the 1990s, the Government had identified Bujagali Falls as a site for an energy project that would meet the country’s medium to long-term energy requirements.33 In 1997, the Government made its first request to the World Bank for an International Development Association (IDA) Partial Risk Guarantee to support construction of the Bujagali Project.34 At the time, the Project would be sponsored by AES Nile Power (whose majority shareholder was a United States firm – AES Corporation) on a build-own-operate-transfer (BOOT) basis at a cost of US $582 million.35 On December 18, 2001, the World Bank approved the Partial Risk Guarantee.36 However, partly as a result of local and international activism against the project, in August 2003, AES Nile Power announced that it was discontinuing construction at Bujagali and pulling out of the Project.37                                                  31 Simon Peter Engorait, “Power Sector Reforms in Uganda: Meeting the Challenge of Increased Private Sector Investments and Increased Electricity Access Among the Poor” in Edward Marandu and Dorcas Kayo, The Regulation of the Power Sector in Africa (London: Zed Books, 2004) at 301 [Power Sector Reforms in Uganda].     The victory of 32 Engorait notes, for example, that after completing the installation of all the turbines at the Owen Falls dam in 1968, it was found that demand still exceeded capacity – both locally and for export. However, plans to expand capacity upstream from the Owen Falls dam were brought to a halt when the country suffered political and economic turmoil between 1971 and 1986. In fact, in addition to the inability to expand capacity, that period did not allow even for the maintenance and smooth operation of the existing energy infrastructure. Ibid. at 301 & 302.  33 The Inspection Panel, “Investigation Report – Uganda: Third Power Project (Credit 2268- UG) and the Proposed Bujagali Hydropower” (2002) online: World Bank< http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/UGANDAIRMainReport.pdf> at 3 [2002 Report of the Inspection Panel]. In fact, some argue that the site was identified much earlier than this. Gore opines, for example, that as early as the 1920s, there were plans by the colonial government to build a dam at Bujagali. Gore, “Electricity and privatization in Uganda” supra note 27 at 383.  34 The Inspection Panel, 2002 Report of the Inspection Panel Ibid.   35 Ibid.   36 Ibid. at 5.  37 International Rivers, “AES Pulls Out of Uganda Dam” online: International Rivers   26 project opponents was short-lived. In February 2005, the Government presented a new project design to a group of stakeholders and voted to revive the Project.38 On 30 December 2005, the government concluded a deal with a consortium led by Industrial Promotion Services of the Aga Khan Fund.39 The Project was officially revived. Through Bujagali Energy Limited (the Company), a company jointly owned by Sithe Global Power LLC (a US company) and Industrial Promotion Services, the Project resumed construction. According to the Power Purchase Agreement (PPA), Bujagali Energy Limited will own the project for a 30-year period, after which the facility will revert to government ownership.40 The Company contracted Salini Costruttori S.P.A. (Salini) to construct the facility.41 The latter is also responsible for making all hiring decisions during the construction phase.42   Financial closure of the Project occurred on December 21, 2007 where it was agreed that Bujagali Energy Limited would inject US$ 190 million in equity; and IDA, International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA) would contribute respectively US$ 115 million in the form of an IDA Partial Risk Guarantee, US$                                                                                                                                                      <http://www.internationalrivers.org/en/africa/aes-pulls-out-uganda-dam>. International Rivers and NAPE argue that AES pulled out for a number of reasons: performance shortfalls, reports of AES’s involvement in corrupt practices relating to the project, social, economic and environmental controversies surrounding the project and the failure to reach financial closure at the Bank. See also National Association of Professional Environmentalists (NAPE), “Lodging A Claim on the Proposed Bujagali Hydropower Dam and Interconnection Projects in Uganda” (March, 2007) online: World Bank Inspection Panel                       <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/InspectionPanelClaim.pdf> at 2 [2007 Request for Inspection]. The World Bank on the other hand maintains that AES withdrew because of delays in implementing the project and a weakening of AES’s financial position which was a result of the downturn in the United States markets around that period. World Bank, 2007 Management Response to Request for Inspection supra note 5 at 8. 38 International Rivers, “Bujagali Being Revived: Civil Society Concerns” online: International Rivers< http://www.internationalrivers.org/en/bujagali-being-revived-read-civil-society-concerns>.  39 International Rivers, “Bujagali Dam Rises Again in Uganda” online: International Rivers < http://www.internationalrivers.org/en/africa/bujagali-dam-rises-again-uganda>.  40 Interview of Engineer Paul Mubiru supra note 26.  41 Bujagali Energy Limited, “Employment Opportunities” online: Bujagali Energy Limited<http://www.bujagali-energy.com/bujagali_contactUs1.htm>. 42 Ibid.    27 130 million as “A” and “C” Loans and US$ 115 million as political risk guarantee.43 As a temporary measure, in late 2006 and early 2007, the Government commissioned Dubai- based Aggreko International to operate two 50MW thermal generators.44 Also, IDA financed an additional 50MW under the Bank-funded Power Sector Development Operation.45    The Bujagali Project consists of the construction of a 250MW hydropower plant and a 30meters high rock-filled dam on the River Nile just below Bujagali Falls and about 8 kilometres downstream of the existing Nalubaale-Kiira hydropower plants.46 The complex also involves the construction of a sub-station, 100km of transmission lines and other associated works.47 A total area of 238 hectares is needed to construct project facilities.48 The project sponsors identified 8,700 people as being directly affected by the Bujagali Project, 714 of whom were physically displaced and the rest affected in ways other than physical displacement.49 Because this figure relates to “direct” impacts,50 and given the fact that it is provided by the project sponsor, there is a likelihood that it is a conservative estimate. Also, while this number may appear small when compared to the hundreds of thousands and even millions of people displaced by dams in countries such as China and India,51                                                  43 IBRD & IDA, Management Response to 2008 Inspection Panel Report supra note 22 at 6.   it is important to keep in mind that for each person displaced, there is a real impact 44 Gore, “Electricity and privatisation in Uganda” supra note 27 at 363.  45 The Inspection Panel, 2008 Report of the Inspection Panel supra note 29 at 17.  46 Ibid. at 29.  47 Ibid. at 29 & 30. 48 Ibid. at 29. 49 IBRD & IDA, Management Response to 2008 Inspection Panel Report supra note 22 at 25.  50 See discussion in Part III below.  51 The World Commission on Dams reported, for example, that between 1950 and 1990, official reports in China indicated that approximately 10.2 million people had been displaced by dams. Independent reports stated that the actual figures were higher with the Yangtze Valley alone displacing about 10 million people.   28 that distorts a means of livelihood, social network, cultural attachment and even emotional core.52    One can expect that with the country’s plans of expanding hydro-generation, the numbers of those displaced by large dams will continue to be on the high side. For starters, the 2002 Energy Policy prepared by the Ministry of Energy and Mineral Development placed the country’s hydropower potential at 2000MW.53 So far, only 380MW – excluding Bujagali – has been installed.54 In fact, the Ministry of Energy and Mineral Development is unequivocal about the fact that the Bujagali Project has not placed a cap on the exploration of the country’s natural resources.55 Consequently, all the potential of the Victoria Nile needs to be utilized if access to electricity is to meaningfully increase.56                                                                                                                                                      The number of those displaced by dams in China is expected to have increased tremendously following the construction of the Three Gorges. In India, large dams are estimated to have displaced between 16 and 38 million people between 1950 and 1990. See World Commission on Dams, Dams and Development supra note 1 at 104. See also Michael M. Cernea, “Involuntary Resettlement in Development Projects: Policy Guidelines in World Bank-financed Projects” World Bank Technical Working Paper No. 80 (Washington, D.C: The World Bank, 1988) at 3 for examples of hundreds of thousands of people displaced by major dams outside Africa [Involuntary Resettlement in Development Projects].    Already, in addition to the Bujagali Project, the Government is reported to be planning other large hydropower 52 See also The Inspection Panel, 2002 Report of the Inspection Panel supra note 33 at 76 where the Panel noted that “While the number of those relocated is small relative to most Category A dam projects, dislocation is just as significant to those directly affected by it”. Rew et. al. also point out that many times, what appear to be small numbers may still represent a large percentage of a country’s population when compared to seemingly larger cases of displacement. Alan Rew, Eleanor Fisher and Balaji Pandley, “Policy Practices in Development-induced Displacement and Rehabilitation” in Chris De Wet (ed.) Development-Induced Displacement: Problems, Policies and People Volume 18 Studies in Forced Migration (Berghahn Books, 2006) at 42 [Policy Practices in Development-induced Displacement]. See also Michael M. Cernea, Ibid. at 7. 53 Ministry of Energy & Mineral Development, The Energy Policy for Uganda (September, 2002) online: Ministry of Energy & Mineral Development<http://www.energyandminerals.go.ug/pdf/EnergyPolicy.pdf> at 14 [2002 Energy Policy].  54 This includes the 180MW installed at Owen Falls Dam/Nalubaale – the first hydroelectric dam in the country – and the 200MW capacity installed at Owen Falls Extension/Kiira. See Engorait, “Power Sector Reforms in Uganda” supra note 31 at 301 & 302.   55 Interview of Engineer Paul Mubiru supra note 26.  56 Ibid.    29 projects including Karuma (700MW),57 Ayago South (234MW), Murchison Base (222MW) and Mpanga (144MW).58      Behind every large dam structure are multiple competing narratives. These include the debate over whether the economic costs of a dam justify it as an option over other alternative sources of energy.59 Divisions also persist over the environmental impacts of dams including their impact on forests, fisheries, vegetation and other aspects of biodiversity.60                                                  57 Bbumba, “2009/10 Budget Speech” supra note 20 at 20.  Additionally, there is contention over whether the destruction of burial grounds, cultural/spiritual heritage and tourism sites is an acceptable price to pay for 58 NAPE, A Spot Check on Compliance and Performance of World Bank and African Development Bank in Uganda’s Energy Sector: Success or Failure Story? (Uganda: NAPE-(FOE), 2009) at 1 [A Spot Check on Compliance].  59 See generally, World Bank, 2007 Management Response to Request for Inspection supra note 5 at 4, 26, 27; NAPE, 2007 Request for Inspection, supra note 37 at 5, 6, 8 & 9; McDonald, “Electric capitalism: Conceptualising” supra note 7 at 3; Sharife, “Damnation for Africa’s big dams?” supra note 4 at 53; Leonard Gentle, “Escom to Eskom: From racial Keynesian capitalism to neo-liberalism (1910 – 1994)” in David A. McDonald (ed.) Electric Capitalism: Recolonising Africa on the Power Grid supra note 7 at 52 – 60; Rebecca Ghanadan, “Connected geographies and struggles over access: Electricity commercialisation in Tanzania” in David A. McDonald (ed.)  Ibid. at 400 – 436; Terri Hathaway & Lori Pottinger, “The great hydro-rush: The privatisation of Africa’s rivers” in David A. McDonald (ed.) Ibid. at 149 & 152; NAPE, “A Spot Check on Compliance” Ibid. at 1; Stephen Linaweaver, “Falling for AES’s Plan? Uganda Debates Damming the Nile” (June 1999) Multinational Monitor at 17; Prayas Energy Group, “The Bujagali Power Purchase Agreement – an Independent Review: A Study of the Techno-Economic Aspects of the Power Purchase Agreement of the Bujagali Hydroelectric Project in Uganda” (November, 2002) online: International Rivers< http://www.internationalrivers.org/files/bujagalippa-review.pdf > at 3 & 24. 60 Bujagali Energy Limited, “Bujagali Hydropower Project: Environmental Responsibility” online: Bujagali Energy Limited <http://www.bujagali-energy.com/bujagali_environmentalResponsibility1.htm>; World Bank, 2007 Management Response to Request for Inspection supra note 5 at 12, 13, 18; Tom Nevin, “Battle lines drawn over Bujagali dam” African Business (June 2007) at 57; Hathaway & Pottinger, “The great hydro-rush: The privatisation of Africa’s rivers” Ibid. at 151; NAPE, 2007 Request for Inspection Ibid. at 3 – 5; Lori Pottinger & Frank Muramuzi, “Letter to the World Bank Regarding Owen Falls Dam and Lake Victoria” (February, 2006) online: International Rivers< http://www.internationalrivers.org/en/letter-world-bank-regarding-owen- falls-dams-and-lake-victoria>; NAPE, “A Spot Check on Compliance” Ibid. at 4; Michel Wormser, “World Bank Response to IRN Letter on Bujagali” (June, 2007) online: World Bank <http://siteresources.worldbank.org/EXTBUJHYDPOWPRO/Resources/ResponseLetterIRN6-07.pdf>; Lori Pottinger et. al., “Letter to World Bank: Outstanding Concerns on Bujagali” (April, 2007) online: International Rivers< http://www.internationalrivers.org/en/africa/bujagali-dam-uganda/letter-world-bank-outstanding- concerns-bujagali>.   30 expanding the national grid.61 Then there is the story of the communities affected by these projects in various ways.62  These communities, even though rarely benefiting from such projects, bear a disproportionate share of the adverse social and economic project impacts.63 Each of the above narratives presents important questions for inquiry. What animates this thesis, however, is the impact of dam construction on Affected Communities.64    In March 2007, local NGOs and individuals in Uganda approached the Inspection Panel requesting it to review the Bujagali Project’s compliance with Bank policy on a number of issues including environmental and social impacts, economic feasibility of the Project, transparency in decision making and the impact that climate change would have on the success of the Project.65                                                  61 Stephen Linaweaver, “Tourism at Bujagali” (January 2001) online: International Rivers<http://www.internationalrivers.org/en/africa/tourism-bujagali>; F.C. Oweyegha- Afunaduula, “Bujagali as Ethnocide: Cultural and Spiritual Death of the Indigenous Community of Basoga, Uganda” (June, 2005)online: Oweyegha Afunaduula  In 2008, the Panel published its findings, which revealed multiple areas of non-compliance including a failure to meet a number of the requirements pertaining to involuntary resettlement. To begin with, the Panel concluded that there were flaws in the socio-economic survey, which rendered the survey an inaccurate reflection of the social and < http://www.afuna.o-f.com/articles/BUJAGALI%20AS%20ETHNOCIDE.htm>; The Inspection Panel, 2008 Report of the Inspection Panel supra note 29 at 163; NAPE, “A Spot Check on Compliance” Ibid. at 9 & 10; World Bank, 2007 Management Response to Request for Inspection supra note 5 at 10; NAPE, The Unresolved Issues in the Bujagali Project in Uganda: A Lack of Transparency and Public Participation (National Association of Professional Environmentalists, June 2007) at 4; David Mugabe, “Bujagali Falls to Close in January 2011” (9 April 2010) online: The New Vision< http://www.newvision.co.ug/D/8/13/715734>; NAPE, 2007 Request for Inspection supra note 37 at 5. 62 World Bank, 2007 Management Response to Request for Inspection supra note 5 at 11, 38, 40 – 43; Nevin, “Battle lines drawn over Bujagali dam” supra note 60 at 57; World Commission on Dams, Dams and Development supra note 1 at 102, 107 & 108; NAPE, 2007 Request for Inspection Ibid. at 12.  63 World Commission on Dams, Ibid. at 98.  64 In the thesis, the phrase “project-affected communities” (Affected Communities) is used interchangeably with phrases such as displaced persons and dam-affected communities.  65 See NAPE, International Rivers and Bank Information Center , “Summary of Key Findings from the Inspection Panel Investigation Report on Bujagali Hydropower Project, Uganda” online: International Rivers<http://www.internationalrivers.org/en/node/3492> [Summary of Panel Findings].     31 economic conditions of those displaced.66 Also, it found that the Assessment of Past Resettlement Activities and Action Plan (APRAP)67 prepared by Bujagali Energy Limited (as an update of the Resettlement Action Plan initiated by AES Nile Power) did not adequately incorporate the policy objectives of the World Bank’s policy on involuntary resettlement.68 In addition, the Panel found that the Community Development Action Plan (CDAP)69  that Bujagali Energy Limited had prepared was weak because it was targeted more towards the short term than the long term and did not commit adequate funding to development projects.70 The Panel further held that the Project failed to mitigate the losses and impoverishment risks threatening those engaged in fishing and agriculture, thereby failing to restore their livelihoods.71 Related to this was the observation that the project sponsor had not paid adequate attention to the potential livelihood risks suffered by vulnerable members of the community.72 Lastly, the Panel problematized the consultation strategy of the project sponsor, concluding that it was structurally flawed since it excluded a majority of the displaced people from its processes.73   These, and other findings gleaned from published literature74                                                  66 Inspection Panel, 2008 Report of the Inspection Panel supra note 29 at 143.   and interviews conducted by the researcher, constitute the groundwork for tracing the role of law in incorporating the 67 Burnside, Assessment of Past Resettlement Activities and Action Plan (December, 2006) online: The World Bank <http://siteresources.worldbank.org/EXTBUJHYDPOWPRO/Resources/HPPSEAAppendixI.pdf>. 68 Inspection Panel, 2008 Report of the Inspection Panel supra note 29 at 138 & 139.  69 Burnside, Community Development Action Plan (December 2006) online: The World Bank <http://siteresources.worldbank.org/EXTBUJHYDPOWPRO/Resources/HPPSEAAppendixJ-CDAP.pdf>. 70 Inspection Panel, 2008 Report of the Inspection Panel supra note 29 at 160 & 161.  71 Ibid. at 147 – 151.  72 Ibid. at 153.  73 Ibid. at 143. 74 See, for example, Naminya Resettlement Areas, “Unfulfilled Promises by Bujagali Dam Project and problems we are facing at the Naminya Resettlement area” in NAPE, 2007 Request for Inspection supra note 37 at 15 – 20.    32 concerns of Affected Communities in projects of this nature. The details of the methodology for the interviews are contained in Chapter Two. 75   However, given the fact that this Chapter deals with the general background to the project and also dedicates a significant segment to defining Affected Communities and highlighting their concerns, it is useful to draw certain references from interview findings. As much as possible, however, the details of interviews have been reserved for the chapters after the methodology chapter.   III. Constructing Meanings and Establishing Boundaries: Who are “Project Affected Communities”?  Defining Affected Communities has significant implications for both project sponsors and affected communities. For project sponsors, identifying these communities is integral to the process of evaluating the project’s performance record.76 That is, determining the number of people affected by the project speaks to the overall impact of the project and hence, its feasibility – particularly when compared to other options. The number of people affected and the extent of the impacts also have cost implications depending on the resettlement and rehabilitation requirements under the law in question. For the communities themselves, the construction of who qualifies as a part of the Affected Community is a mechanism of establishing boundaries that distinguish those who will be included in the compensation scheme from those who will be excluded from it.77                                                  75 See Chapter Two, Part V.  The process of establishing who is affected determines not only those who should be compensated but also the form and extent (and/or duration) of the compensation. Too frequently, Affected Communities have been 76 World Commission on Dams, Dams and Development supra note 1 at 97.  77 See also Frances Cleaver, “Paradoxes of Participation: Questioning Participatory Approaches to Development” (1999) 11 Journal of International Development at 603 [Paradoxes of Participation].   33 perceived in the narrow sense of those physically dislocated by a project.78 Such an interpretation is problematic because it ignores other people whose source of livelihood has been disrupted and whose socio-cultural milieu has been destabilized as a result of the project.79   One definition of Affected Communities that extends beyond physical displacement can be found in the World Bank policy on involuntary resettlement.80 The policy defines displaced people to mean “persons who are affected in any of the ways described in para.3 of [Operational Policy 4.12].”81 According to that paragraph, displacement covers loss of shelter; loss of assets or access to assets; disruption of means of livelihood; and restriction of access to shared areas such as legally designated parks and protected areas.82 It includes “all direct economic and social losses resulting from land taking and restriction of access, together with the consequent compensatory and remedial measures.”83 This definition is helpful because it captures physical, economic and social disruption resulting from development projects.84                                                     78 World Commission on Dams, Dams and Development supra note 1 at 102.  79 Examples of these are upstream and downstream communities who, even though not physically dislocated, are destabilized in various ways by dam construction. Ibid. at 102 & 103.  80 World Bank, “Operational Manual: Operational Policy (OP) 4.12” (December, 2001 - as updated in March, 2007) online: World Bank< http://web.worldbank.org> [OP 4.12]. 81 Ibid. endnote 3.  82 Ibid. paragraph 3.  83 World Bank, Involuntary Resettlement Sourcebook: Planning and Implementation in Development Projects (International Bank for Reconstruction and Development/World Bank, 2004) at 5 [Involuntary Resettlement Sourcebook]. 84 This definition is similar to that provided by the World Commission on Dams, which defined displacement as both physical and livelihood displacement (or deprivation). See World Commission on Dams, Dams and Development supra note 1 at 102. See also International Finance Corporation (IFC), “Performance Standards on Social and Environmental Sustainability” (April, 2006) online: IFC <http://www.ifc.org/ifcext/sustainability.nsf/AttachmentsByTitle/pol_PerformanceStandards2006_full/$FILE/ IFC+Performance+Standards.pdf>. See particularly, Performance Standard 5: Land Acquisition and Involuntary Resettlement paragraph 1.    34 Yet even the Bank definition is incomprehensive because it qualifies project impacts by restricting its coverage to “direct” impacts. Prior to Operational Policy (OP) 4.12, there was no distinction between direct and indirect impacts of Bank-assisted investments.85 When in 2001, the Bank’s Executive Directors wondered whether such an introduction would not dilute the existing policy,86 Bank management (Management) responded that the import was made to clarify a long-standing interpretation of the existing policy.87 The policy, Management added, was never intended to cover “all adverse socio-economic impacts of Bank projects – only those directly caused by land taking and restriction of access to legally designated parks and protected areas.”88 Management advised that indirect impacts could be dealt with using other mechanisms such as social and environmental assessments.89   The introduction of a demarcation between direct and indirect impacts is problematic. Labelling an impact as “direct” connotes tangible and ‘see-able’ cause-effect patterns, when in fact impacts of projects of this nature often extend beyond such patterns. Such a definition risks excluding, for example, the psychological impacts (such as stress and depression) that result from displacement. Also, by qualifying project impacts in this manner, communities such as those living downstream could be excluded since, as observed                                                  85 For example, while Operational Directive 4.30 did not explicitly define displacement, Paragraph 3 thereof provided that “The objective of the Bank’s resettlement policy is to ensure that the population displaced by a project receives benefit from it.” World Bank, “The World Bank Operational Manual: Operational Directive 4.30” (June 1990) online: International Finance Corporation <http://www.ifc.org/ifcext/enviro.nsf/AttachmentsByTitle/pol_Resettlement/$FILE/OD430_InvoluntaryResett lement.pdf> 86 World Bank, “Conversion of the World Bank’s Policy on Involuntary Resettlement: Substantive Comments from Executive Directors on Draft OP/BP 4.12 dated July 25, 2000” (March 6, 2001) online: The Center for International Environmental Law<http://www.ciel.org/Publications/Matrix-final.pdf> paragraphs 24, 27, 29 & 33 [Conversion of the Bank’s Policy on Involuntary Resettlement].   87 Ibid. paragraph 27.  88 Ibid. paragraph 27. 89 James D. Wolfensohn, “OP/BP 4.12, Involuntary Resettlement Background Note on the Conversion Process” (September 2001) online: The Center for International Environmental Law<http://www.ciel.org/Publications/wolfensohn_28sep01_memo.pdf> at 2; Ibid. paragraph 29.    35 by the World Commission on Dams, the impacts on these groups often become evident after dam construction is complete.90   Lastly, there is a tendency for solutions associated with direct impacts to be geared towards short-term quick-fix strategies that downplay the long- term consequences of displacement.  It does not help much to move – as suggested by Management – indirect impacts to environmental and social assessments. To begin with, because they affect people, these impacts are likely to be placed on the back burner when assessing environmental concerns, strictly speaking. Even if they were to be incorporated in environmental impacts, their assessment would result in insufficient (if any) protection for those affected. Environmental impact assessments are based on a cost-benefit analysis that weighs the negative impacts of a project against its overall positive (usually economic) benefits.91 Because they concentrate on net impacts of projects, these impact assessments cannot “guarantee that identified impacts will be mitigated, only that the overall optimal outcomes will be pursued.”92 Social assessments are also not without their limitations. Commentators observe that it is often difficult to zero down on what constitutes a social impact.93 Even after they have been identified, there is always contention about which of these impacts should be addressed by the state and which should be attended to by private actors.94 Consequently, these impacts are rarely taken seriously by either party.95                                                  90 World Commission on Dams, Dams and Development supra note 1 at 103.   Further, it has been observed that “where social impact assessments [SIAs] are required, ‘there is seldom a requirement for results of SIAs 91 David Szablowski, Transnational Law and Local Struggles: Mining, Communities and the World Bank (Oregon: Hart Publishing, 2007) at 51 [Transnational Law and Local Struggles].  92 Ibid.   93 Ibid. at 50 & 51.  94 Ibid.  95 Ibid. at 51.    36 to be seriously considered. SIAs often go unread, at least unheeded, and mitigation measures seldom taken seriously’.”96    By removing indirect impacts from the policy on involuntary resettlement, these impacts are transferred to a place where they do not really belong and where protection of those affected cannot be guaranteed. It is important to think about impacts in terms of people and their experiences. This means that the exclusion of certain impacts excludes either a group of people or denies some of the adverse impacts that they suffer at the hands of a project. It could also translate into providing short-term as opposed to long term benefits. Whatever the implication, the direct-indirect demarcation results in a further marginalization of otherwise affected peoples. Understandably, some boundaries have to be drawn; many times on a case-by-case basis. Even so, it is better that the blanket definition be wide enough to include an assortment of impacts instead of restricting inclusion from the onset.   This thesis proposes an adoption of the Bank definition of displaced persons with some modification: revising/reverting the policy to one in which the element of “direct” impacts is removed. Even with such an adjustment, the construction of Affected Communities adopted here is artificial and limited in its application.97                                                  96 Ibid.    It is artificial because the discussion restricts itself to “people” without venturing into the institutions to which these people belong. In other words, “Affected Communities” as explored in this thesis does not include institutions relating to cultural heritage and spiritual beliefs, yet these institutions invariably 97 In fact, one author observes that the very act of establishing boundaries undermines the “overlapping, shifting and subjective nature of ‘communities’ and the permeability of boundaries”. Cleaver, “Paradoxes of Participation” supra note 77 at 603.   37 affect people both collectively and individually. One of the activists interviewed argued that one of the shortcomings of the Bujagali Project is that the World Bank and the Government of Uganda have localized the definition of dam-affected people by limiting it to the population living around the project area when in fact there are millions other Basoga who are affected by it – especially from a spiritual-cultural perspective.98   A similar attack could be lodged against the boundaries drawn by the definition suggested here. Consequently, by focussing primarily on displacement or involuntary resettlement of communities (as opposed to the communities and their institutions), this thesis is conscious of the fact that it removes itself from the wide impact that the Project has on other aspects that affect the community such as its impact on the Nabamba Budhagali institution: the cultural institution of the Basoga. It is particularly cautious of the fact that Nabamba Budhagali constitutes part of the identity of the Basoga and it is one of the aspects that distinguishes Basoga from other ethnic groups.  The decision to artificially separate displacement as it relates to communities from displacement as it relates to the community’s ethno-cultural institutions is a strategic one. It is driven by the need, first, to comprehensively analyze the issue of involuntary resettlement of people by development projects – irrespective of the relevance of the sites on which these projects are located. Second, the discussion recognizes that cultural heritage and spiritual affiliations are in and of themselves significant issues which warrant independent analysis, despite their connectedness to people issues. Third, such an approach allows the discussion to concentrate on the common values shared by the communities affected by the Project.                                                  98 Interview of Oweyegha Afunaduula (Programme Manager, Sustainability School at NAPE) (10 November 2009) at NAPE Offices, Kampala, Uganda.     38 Concentrating on ethno-specific institutions in cases where the population displaced is diverse could create other categories of divisions and power struggles between those affected. For example, in 2008, the Inspection Panel noted that the Basoga constitute up to 46% of those immediately adjacent to the dam site when compared to 17% Baganda.99 The Panel also reported that while there were other ethnic groups around the Project area “the Busoga claim spiritual dominion of both sides of the Nile, its islands and its waterfalls.”100   Therefore, it is only the Basoga who claim cultural and spiritual heritage to the Bujagali Falls. By removing the (important) component of Budhagali as a cultural institution, the discussion focuses on peoples qua peoples and their personal and common assets such as land, businesses, social networks, markets and schools. This focus also allows the definition proposed here to be transplanted to other development projects (such as roads, large housing projects, mining, oil and gas projects) which take place in areas with diverse cultures and in the absence of cultural-specific institutions.  However, the exclusion of ethno-cultural institutions from the discussion should not be read as suggesting a disregard for the communal ethos that often defines the relationships between those displaced. Consequently, this thesis retains the character of the social capital that is entrenched in the associations of those displaced. It adopts a definition of displaced persons that is skewed more towards communal set-ups than it is to individualized ways of being. It recognizes the fact that frequently, these projects are undertaken in rural or semi- urban locations in which those affected rely not simply on agricultural land, but also, on their communal networks for their livelihoods. In other words, they posses “shared identities                                                  99 The Inspection Panel, 2008 Report of the Inspection Panel supra note 29 at 28.  100 Ibid.    39 and common institutions that provide the basis for collective actions.”101 Therefore, an “apolitical individualization” of these displaced persons would have the impact of undermining their collective struggles.102   For example, while economic displacement may result in the unemployment of an individual, it also affects the immediate and extended family (that is, the community of persons) that depend on the individual for subsistence. At the same time, the choice to use “communities” as opposed to “people/individuals” should not be interpreted as eliminating individual interests all together. For instance, while these communities are largely agro-based and many times hold land interests communally, they can also own land on an individual basis.103  It is also difficult – if not impossible – to speak of homogeneous or monolithic communities because even though these persons often act in concert, they also retain their individual identities and interests, which many times conflict with each other. Therefore, the community is not a non-problematic solidarity. It is composed of individuals whose diverse interests result in conflict and power struggles.104 As one author observed, the community is, “More realistically … the site of both solidarity and conflict, shifting alliances, power and social structures.”105   To this end, the inclusive reforms desired in this thesis are both communal and individual.                                                   101 Szablowski, Transnational Law and Local Struggles supra note 91 at 138. 102 See, for example, Cleaver, “Paradoxes of Participation” supra note 77 at 599. 103 See, for example, The Land Act 1998 Cap 227 Laws of Uganda, Part II.  104 See generally Dolores Koenig, “Enhancing Local Development in Development-induced Displacement and Resettlement Projects” in Chris De Wet (ed.) Development-Induced Displacement: Problems, Policies and People supra note 52 at 105 - 140.  105 Cleaver, “Paradoxes of Participation” supra note 77 at 599. See also pages 605 – 608.   40 Also, for purposes of this thesis, host communities106 are not treated as Affected Communities, despite acknowledging the fact that they too are adversely affected by the resettlement of displaced people into their communities. Therefore, while not explored in any material detail here, the thesis recommends that project sponsors should factor host communities’ concerns in at an early stage in project planning. The World Bank requires, for example, that hosts should be provided with timely information, consulted and offered opportunities to participate in resettlement planning.107 In addition, Bank policy requires host communities to be provided with the necessary infrastructure and services to ensure that their lives are not disrupted by resettlement.108 It is also important that the social and cultural institutions of these communities are preserved.109   Lastly, the process of identifying Affected Communities should involve the proper identification of the different components of projects. The World Commission on Dams observed that sometimes, affected groups are not compensated because they are not displaced by the core components of a project.110                                                  106 Host communities are the communities residing in the resettlement area before resettlement takes place.  The chances of exclusion in this manner are perhaps even higher when the different components of the project are being sponsored and/or financed by a variety of institutions that are governed by different policies. In the case of the Bujagali Project, there are two main components: the Bujagali Hydropower Plant (sponsored by Bujagali Energy Limited and financed by the World Bank, among others) and the Bujagali Interconnection Project (implemented by the Uganda Electricity Transmission 107 World Bank, OP 4.12 supra note 80 paragraph 13 (a). 108 Ibid. paragraph 13 (b). 109 Ibid. paragraph 13 (c).  110 World Commission on Dams, Dams and Development supra note 1 at 105.    41 Company Limited (UETCL) and financed by the African Development Bank).111 The latter consists of the construction of transmission lines from Bujagali substation to different substations including Kawanda, Naluubale and Mutundwe; construction of part of the Bujagali substation, the Kawanda substation and an extension of the Mutundwe substation.112 One of the challenges of arrangements of this nature is in ensuring that resettlement policy is applied fairly and consistently to all the communities affected. Fortunately, in the Bujagali case, the African Development Bank has a policy on involuntary resettlement.113 Also, when the Bank finances a project, its policy on involuntary resettlement applies to all components of that project irrespective of the source of finances.114 The Bank policy also covers any other activities that are “directly and significantly related to the Bank-assisted project”.115   Problems arise where projects are financed by parties who have no involuntary resettlement policies or whose policies are weak. In such cases, it is helpful if there is a strong domestic policy on resettlement. IV. Displacement under Uganda’s Domestic Legal Framework There is no specific legislation on development-induced displacement in Uganda. Instead, the domestic legal regime governing displacement caused by projects such as the Bujagali Project can be found in three main pieces of legislation: the Constitution of the Republic of                                                  111 Inspection Panel, 2008 Report of the Inspection Panel Report supra note 29 at 30. See also African Development Bank Group, “Bujagali Interconnection Project” online: African Development Bank Group<http://www.afdb.org/en/projects-operations/project-portfolio/project/p-ug-fa0-002/>. 112 African Development Bank Group, Ibid. 113 African Development Bank, Involuntary Resettlement Policy (November, 2003) online: African Development Bank Group< http://www.afdb.org/fileadmin/uploads/afdb/Documents/Policy- Documents/10000009-EN-BANK-GROUP-INVOLUNTARY-RESETTLEMENT-POLICY.PDF>. With the exception of some of the recommendations made in Chapter Six, this thesis does not analyze in any material detail the effectiveness of the African Development Bank policy. Neither does it delve into any significant detail on issues surrounding the Interconnection project funded by the African Development Bank.  114 World Bank, OP 4.12 supra note 80 paragraph 4. 115 Ibid. paragraph 4 (a).   42 Uganda, the Land Act and the Electricity Act.116 When the Electricity Regulatory Authority (ERA) invites applicants for any license under the Electricity Act – as was the case with Bujagali – the application submitted should contain inter alia a statement on the impacts of the proposed project on public interests, and possible mitigation measures.117 In addition, it should disclose the likely impacts of the project on private interests, including interests of landowners and holders of other rights.118 Within forty days of receiving an application, ERA is required to publish the application in the Gazette and at least one widely circulated newspaper.119 In its publication, ERA invites those directly affected by the project to lodge an objection (within thirty days) against granting the project sponsor a licence on personal, environmental or other grounds.120 The Act is silent about the procedure to be followed in the event that objections are raised but states that in granting or rejecting an investor’s application, ERA takes into account a number of factors, including the energy needs of the country, the impact of a project on social, cultural and recreational life of a community, land use at the project site, the need to protect the environment and natural resources, and other public or private interests that may be affected by the project.121   Section 34 (1) (j) of the Electricity Act requires that when granting the application for a licence, the ERA should take note of any consents or permits that may be required under any other law. If the licensee requires land other than for maintaining electricity supply lines, she or he needs to apply to the Minister responsible for lands to approve the land                                                  116 There is of course other legislation that impacts on operations of the project as far as people are concerned, such as the Employment Act. However, this legislation is secondary to the aspect of development-induced displacement and as such, does not form part of the present analysis. 117 The Electricity Act 1999 section 34 (1) (f). 118 Ibid. section 34 (1) (h).  119 Ibid. section 36 (1). 120 Ibid. section 36 (2) (d).  121 Ibid. section 38 (1).   43 use.122 If the Minister is satisfied that the land or right to use land is required for the provision or maintenance of electricity to the public (that is, required in the public interest), the Minister shall pursue the land acquisition in accordance with the provisions of the Constitution, the Land Act and the Land Acquisition Act.123 Articles 26 and 237 of the Constitution are to the effect that no person shall be compulsorily deprived of their property unless such acquisition is in the public interest.124 Before acquiring the property, those affected should be promptly given “fair and adequate compensation” and have a right to access courts of law if dissatisfied with the compensation.125    Every district in Uganda has a land board,126 which compiles, maintains and annually reviews the rates of compensation relating to property.127 The provisions of the Land Act pertaining to settlement of disputes relating to compulsory acquisition are instructive of what amounts to “fair and adequate compensation”. Each district has a land tribunal,128 which is tasked with resolving land acquisition disputes129 including establishing the appropriateness of the compensation paid.130 In assessing compensation, the tribunal is guided by the rates compiled by the district land board.131 It also takes into account: in the case of customary land, the market value of that land;132                                                  122 Ibid. section 72 (1).  the value of buildings on the land basing on open market value for urban areas and depreciated replacement costs for rural 123 Ibid. section 72 (4).  124 The Constitution supra note 17, Articles 26 (2) (a) and 237 (2) (a). See also The Land Act supra note 103 section 42.  125 The Constitution Ibid. Article 26 (2) (b).  126 The Land Act supra note 103 section 56 (1). 127 Ibid. section 59 (1) (e) & (f). 128 Ibid. section 74 (1)  129 Ibid. section 76 (1) (a). 130 Ibid. section 76 (1) (b).  131 Ibid. section 77 (3).  132 Ibid. section 77 (1) (a).    44 areas;133 and the value of standing crops on the land.134 In addition to the computed compensation, those displaced should be paid a disturbance allowance equal to 15% of the value of the property.135 Where displaced persons are given less than 6 months notice to vacate their property, the disturbance allowance should be 30% of the value of the property.136    In 1995, with the support and influence of the Bank, the Government drafted policy guidelines on resettlement and rehabilitation of displaced persons, but these never resulted in any formal binding policy.137 What this means is that the only recourse under domestic law for those displaced by projects such as the Bujagali Project is monetary compensation. Those contesting the compensation can file claims with the domestic courts. Often times, the compensation is delayed and even inadequate.138 For example, a senior Faculty member at Makerere University who has interacted closely with the project revealed that while assessments for compensation were undertaken in 2001, it was not until 2008/09 that compensation was paid.139                                                  133 Ibid. section 77 (1) (b).  Also, even though the Land Act requires the land board to regularly update rates, this exercise is rarely translated into practice despite the fact that the 134 Ibid. section 77 (1) (c).  135 Ibid. section 77 (2). 136 Ibid. section 77 (2).  137 Rew et. al., “Policy Practices in Development-induced Displacement” supra note 52 at 46. 138 See, for example, Tweyambe Emmy, Kiwanuka Andrew, Namubiru Alice, Tukahumura Rosemary & Judith Nakirya versus Uganda Electricity Transmission Co. Ltd & Joyti Structures Ltd. High Court Civil Suit No. 147 of 2009 [Tweyambe & Others versus UETCL & Joyti]. The World Commission on Dams also observed that often, compensation of those displaced is delayed, with processing times ranging from 5 to 15 years. See World Commission on Dams, Dams and Development supra note 1 at 107.  139 Interview of Dr. Emmanuel Kasimbazi (Lecturer, Makerere University Faculty of Law) (23 November 2009) at Makerere University Kampala, Uganda.     45 rates are constantly changing.140 Consequently, the rates recommended by the land boards are often overtaken by inflation and other changes in the market conditions.141    Elsewhere, it has been argued that one of the problems with cash compensation is that it “neglects entire categories of loss afflicted on disrupted communities.”142 For example, it ignores the loss of access to “informal property” such as collective use rights and access to social networks that are central to the performance of agricultural production systems.143 Cash compensation also underplays the significant start up costs that are required for survival in new locations, such as having to acquire ecological knowledge of the new place for agro-based communities.144 Lastly, because these communities are rarely exposed to large sums of money, it is not uncommon for those compensated to be overwhelmed by the seemingly huge sums and misuse the money for alcohol, buying old vehicles and financing marriage.145   In any event, because of rare exposure to huge sums of money, most of these people do not have a saving culture, let alone own bank accounts.  As at the end of 2009, one of the Affected Communities (the Malindi dam-affected community) informed the researcher that they had filed a case in court against Bujagali Energy Limited, but no hearing had yet been conducted.146                                                  140 Ibid.   However, in the closely related Bujagali Interconnection Project, five people residing along a corridor on which the UETCL intends to set up high voltage transmission lines filed a suit with the High Court of Uganda 141 Ibid. 142 Szablowski, Transnational Law and Local Struggles supra note 91 at 109.  143 Ibid.   144 Ibid.   145 Interview of Dr. Emmanuel Kasimbazi supra note 139. 146 Interview of members of the Malindi Dam-Affected Community (18 November 2009) at Jinja, Uganda.     46 on 20 May 2009.147   The detailed facts of this case are presented at this early point in the thesis because they exemplify the vulnerability that often characterizes displaced communities and reflect the business as usual attitude often taken by project sponsors in responding to Affected Communities’ concerns. Because Uganda’s domestic legal framework only provides for cash compensation, the remedies requested by the plaintiffs are limited to that compensation. What is important, however, is that the narrative that follows lays the foundation for the discussion in the rest of the thesis by providing a preview to some of the challenges often faced by Affected Communities.      In the UETCL case, the first plaintiff complained that a valuation and survey were undertaken on his land but from the outset, he disagreed with the defendants because he was labelled a non-resident for purposes of their valuation. The second plaintiff complained that first, his land was undervalued. Second, even the little money that had been assessed had not been paid to him despite the fact that a bank account had been opened for him for purposes of payment. Meantime, the plaintiff was not able to use his land because the defendant’s workers were constantly digging on it and destroying his crops. The third plaintiff complained that even though the construction of the transmission lines affected her land, she was never consulted on the process and neither was permission sought from her. In addition, the defendants put a caveat on her land.148                                                  147 Tweyambe & Others versus UETCL & Joyti supra note 138.   Also, no file was opened by the defendants relating to the valuation or otherwise of her land. The fourth plaintiff submitted that even before her land could be valued, the defendants were already passing transmission lines 148 A caveat serves the purpose of acting as a notice to any third parties that the land is encumbered. Consequently, buyers and other third parties should be aware that the piece of property has other underlying claims and interests.   47 through it, without her permission. They had also forced her to sign for a compensation amount which was too low considering the location of her land. The documents were in English, a language she did not understand. By the time of filing the application, she had not received a single shilling of the promised compensation. The last plaintiff was also forced to sign for very little compensation for land that was in a very prime area near Kampala. The compensation was not yet paid. To make matters worse, while she was away, the defendants went to her land and destroyed her property. They also threatened to evict her. The plaintiffs prayed for orders by the court that the defendants were liable to compensate them for their crops, property and land; that court should assess and establish the compensation rates that should apply to the property; and that they should be paid damages, interest and costs of the suit.  The first defendant denied all the plaintiffs’ claims, contending that all those whose land and developments were affected by the transmission corridor between Mukono and Kampala were adequately compensated for their land, crops and fixtures in accordance with the compensation rates that had been set by the district. 149                                                  149 1st Defendant’s Written Statement of Defence in Tweyambe & Others versus UETCL & Joyti, supra note 138.   Once compensation was made, some plaintiffs granted the defendant easements over their land while others transferred their interests in the land to the defendant. Consequently, the defendant only took possession of that land to which it had been granted easements and transferred interest. Further, the first defendant contended that those plaintiffs who had not been compensated were not entitled to any compensation in the first place. In fact, some had put up fixtures   48 overnight targeting compensation. Also in the alternative (and without prejudice) the first defendant claimed that the plaintiff’s action had been highly exaggerated.   The second defendant started its defence by raising a preliminary objection to the effect that the plaintiffs had no cause of action against the second defendant because the latter had never negotiated nor dealt with the plaintiffs in any transaction relating to the land in question.150   The defendant argued that it was UETCL’s obligation (under a contract signed between the two defendants) to acquire physical and legal possession of the land on which the second defendant would undertake construction of the transmission lines. For this reason, the second defendant claimed that it had been wrongly joined as a party to the suit. The second defendant was subsequently struck off the claim.  On 28 October 2009, the court pronounced a temporary order to the effect that the defendants, their workers or any person claiming through them were restrained from evicting, trespassing and/or interfering with the plaintiffs’ rights to quiet possession of their property until the suit was concluded.151 The next day – 29 October 2009 – the parties (with the exception of the first plaintiff) entered a consent judgement against the defendant in which the latter was ordered to pay compensation to the four plaintiffs and costs of the suit within thirty days from the taxation of costs for the suit.152                                                  150 Written Statement of Defence in Tweyambe & Others versus UETCL & Joyti, Ibid.  As would later be explained, the intervention through court action certainly went a long way in increasing compensation. One of the National Association of Professional Environmentalists' (NAPE) officials interviewed explained, for example, that a plaintiff whose property had been valued at 151 Temporary Order in Tweyambe & Others versus UETCL & Joyti, Ibid. 152 Consent Judgement in Tweyambe & Others versus UETCL & Joyti, Ibid.   49 approximately US $ 810 (Uganda shillings 1.5 million) ended up getting US $ 3,812 (Uganda shillings 7,053,474).153 Another whose property had been valued at approximately US $ 18,900 (Uganda shillings 35 million) was awarded approximately US$ 57,300 (Uganda shillings 106,004,557).154     The UETCL case highlights some of the challenges faced by persons displaced by development projects. It also demonstrates the centrality of law in constructing boundaries that exclude on the one hand and establishing protective mechanisms on the other hand. The language of the Constitution and the Land Act automatically defined the boundaries within which the court could operate and the remedies that those affected could request. Claims would have to be limited to cash compensation. On a positive note, the court was able to protect the interests of vulnerable groups by providing them with compensation amounts which they might not have been able to negotiate without court intervention. However, court processes are not without their shortcomings. Cases are often delayed. Already, at the time of the interviews, the hearing of the case filed by the Malindi-dam affected community had been adjourned from 9 November 2009 to 4 February 2010.155   Also, not every displaced person can afford court action meaning that often, many will accept whatever little compensation, if any, that they are given. It is also important to remember the limitations of cash compensation that have been outlined above.                                                  153 Interview of Noreen Nampewo (Gender and Community Support Officer, NAPE) (16 November 2009) at NAPE Offices in Kampala, Uganda. The rates are estimated using the Bank of Uganda exchange rates. Bank of Uganda, “Financial Markets” supra note 25.   154 Interview of Nampewo Ibid.  155 Interview of members of the Malindi Dam-Affected Community supra note 146.    50 In recognition of the inadequacy of cash compensation, some financiers have provided for more comprehensive compensatory packages. For example, the World Bank through its policy on involuntary resettlement demands land-for-land resettlement when there is physical displacement156 unless “land is not the preferred option of the displaced persons, the provision of land would adversely affect the sustainability of a park or protected area, or sufficient land is not available at a reasonable price”.157 The Bank also requires cash compensation – at replacement cost – for assets lost as a result of either physical or economic displacement.158   These World Bank provisions have without doubt compelled project sponsors to undertake measures that go beyond the requirements of domestic law, thereby offering more protection to dam-affected communities. However, as discussed in more detail in Chapter Three, the Bank’s resettlement policy also has its limitations. V. Conclusion While the protection of the interests of dam-affected communities is increasingly becoming relevant in development policy initiatives, these interests are still largely placed in the periphery when compared with other aspects of project planning. As one author noted: In addition to the problems of policy practice, resettlement projects often suffer from a number of mutually reinforcing critical shortages, such as participation, money, manpower, skills and time. Resettlement is all too often seen as an external cost, and is accordingly not planned as a development exercise, with the result that, by default, what should be resettlement with development becomes reduced to relocation with minimal (if any) development.159                                                    156 World Bank, OP 4.12 supra note 80 paragraph 6 (b).  157 Ibid. paragraph 11.  158 Ibid. paragraph 6 (a) (iii).  159 Chris de Wet, “Introducing the Issues” in Chris de Wet (ed), Development-Induced Displacement: Problems, Policies and People supra note 52 at 10.    51 Whether the decision to construct the Bujagali Project as a solution to Uganda’s energy crisis was the right decision or not is beyond the scope of the analysis in this thesis.160 What takes centre stage is the extent to which this decision incorporates the interests of Affected Communities. If shortcomings in the process of incorporation and inclusion taint the decision to build the dam as a whole, then the deduction of this thesis is that the Project is bad. In other words, the adverse impacts on these communities are significant enough to warrant their detailed consideration in the overall assessment of project worthiness.161                                                  160 In fact, to be clear, even project opponents are not against the construction of the dam per se, but rather, the manner in which decisions to construct the dam were reached. For example, in 2007, NAPE indicated that it was willing to support Bujagali if certain conditions were met. Conditions included resolving resettlement and compensation claims, relocating the Bujagali shrines before proceeding with the project, obtaining necessary permits from the Directorate of Water and the National Environment Management Authority and establishing a monitoring committee. As to whether an agreement could be reached on how reasonable these conditions were is, of course, a different issue altogether. See NAPE, The Unresolved Issues in Bujagali supra note 61 at 9.   Yet there can be no suggestion by this deduction that a poor resettlement policy on its own makes the decision to construct a dam a wrong one or vice versa. Such a conclusion only gains legitimacy when channelled through the different filters of the various components of the project and is unlikely to succeed as justification for the unfeasibility of the project when scrutinized independently. Consequently, for strategic purposes, the “people issue” in this thesis is examined independent of the question of whether Bujagali should have been constructed. Such an approach is also useful because it encompasses other projects, which may be sound on purely technical grounds but whose record of dealing with Affected Communities is weak. In the next chapter, the theoretical and methodological framework in which this thesis operates is laid out before reverting to a substantive discussion of the legal issues raised here.  161 World Commission on Dams, Dams and Development supra note 1 at 98. In fact, costs of resettlement constitute part of the overall cost of the project and form part of the economic analysis (rate of return) of the project as a whole. See Cernea, “Involuntary Resettlement in Development Projects” supra note 51 at 5.   52 CHAPTER 2  Setting the Theoretical Groundwork: A TWAIL Critique of International Law and Development   I. Introduction  This thesis is about the relationship between development and Third World peoples. It is also about the interaction between these people and the institution of law. And it is as much about the “here and now” as it is about the past and the future of these interactions. How does one pick a theoretical framework that speaks to issues so complex, people so diverse and times both present and past? How does this engagement ensure that the theoretical framework chosen does not, itself, result in the hegemony and exclusion being contested? And how does this theory translate into practical realities?  These questions are in and of themselves complex and do not elicit easy answers. That said, research projects, I believe, are driven as much by a hunger for knowledge as they are by a search within oneself. They are – or should be – as much about the contribution to a general pool of knowledge as they are about a contribution to our personal capital as researchers, as a people. They are personal and impersonal. Public and private. And even as we struggle to draw the line between “us” (the researchers) and “them” (the subjects of our study) we are drawn back in – willingly or unwillingly – by an investment in the subject of our inquiry. This investment has a bearing on the choices that we make about the theoretical and methodological tools to apply to our research. It influences how we interact with available knowledge to produce more knowledge by either contesting what exists, supporting it, expanding on it or seeking to replace it.    53 Like most other research projects, this thesis is a combination of all these components. It contests universal ways of knowing and being by situating its study in and contextualizing its findings to a particular geographical location. It adds to the voices of and supports the theories that contest these universal truths by documenting alternative truths. And in the process, it replaces or substitutes these understandings by creating alternative meanings. The process of contesting, supporting, adding to and substituting is grounded in two theoretical frameworks: Third World Approaches to International Law (TWAIL) and critical development theory. These theories provide an optic through which to critically analyze the impact of international law and development on Affected Communities in a particular part of the Third World. They also speak to the personal interests of the researcher as self-identifying with that part of the world. I am cautions about the fact that I am an outsider to the communities under study and as such, cannot claim to speak on their behalf. At the same time, my birth and upbringing in Uganda position me as an insider whose personal experiences inform my understanding of and interaction with the issues under investigation. Therefore, mine is a Third World perspective that emanates from being a subject of, observing and questioning development projects and policies. Hence my choice of what I refer to as a TWAIL Critique of International Law and Development.  The chapter proceeds as follows. Part II sets the stage for the rest of the discussion by interweaving the relevant components of TWAIL with those of critical development theory to produce the TWAIL Critique of International Law and Development. In Part III, the components of the combined theories are studied. Three themes are developed. The first discusses the manner in which development has been negatively institutionalized. This is  54 followed by an illustration of the diversity that characterizes the category “Third World peoples” and a critical analysis of the adverse impacts that result from treating these peoples as a monolithic block. The last theme illustrates how resistance is used by Third World peoples to contest negative institutionalization and universal truths. Part IV contains a discussion on the reconstructive project of TWAIL and critical development literature, concluding with a discussion of how this thesis fits into that reconstructive project. The chapter ends with a discussion of methodology in Part V.   II. The Foundation: A Synthesis of TWAIL and Critical Development Theory  One of the core projects of TWAIL scholarship is the unpacking and understanding of international law from a historical perspective. TWAILers trace mainstream international law back to its colonial origins to demonstrate that it is neither neutral nor universal.1 Rather, it is a European construction that was imposed on the rest of the World to facilitate colonial administration.2 They maintain that this colonial mission was neither temporary nor short-lived.3                                                  1 Makau wa Mutua, “What is TWAIL?” (2000) American Society of  International Law Proceedings at 31; James Thuo Gathii, “Neoliberalism, Colonialism and International Governance: Decentering the International Law of Governmental Legitimacy” (2000) 98 Mich. L. Review at 1997 & 2017 [Neoliberalism, Colonialism and International Governance]; Anthony Anghie, “The Evolution of International Law: colonial and postcolonial realities” in Richard Falk, Balakrishnan Rajagopal and Jacqueline Stevens (eds.) International Law and the Third World: Reshaping Justice (New York: Routledge-Cavendish, 2008) 35 – 49 [The Evolution of International Law]; Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004).   Consequently, even though formal colonialism ended, there are important 2 Anthony Anghie & B.S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” in Anne Marie Slaughter and Steven R. Ratner (eds) The Methods of International Law (American Society of International Law Studies in Transnational Legal Policy, 2004) at 191; Anthony Anghie, “Francisco de Vitoria and the Colonial Origins of International Law” in Eve Darian- Smith & Peter Fitzpatrick (eds.) Laws of the Postcolonial (University of Michigan Press, 1999) at 103; Anghie, “The Evolution of International Law” Ibid. at 38 & 42. 3 See generally Anthony Anghie, “Time Present and Time Past: Globalization, International Financial Institutions and the Third World” (2000) 32 N.Y.U J. Int’l L & Pol. at 277 – 279 [Time Present and Time Past].  55 continuities between “then” and “now” that facilitate the West’s domination over the Rest.4 This “cunning of colonialism” manifests itself in various forms5 including its reproduction through the post-colonial state6 and its influence on other aspects of international law such as the international economic order,7 the war on terror,8 and aspects of feminism.9    As a counter-hegemonic intellectual and political movement, TWAIL engages with and draws inspiration from a number of theories that are critical of the mainstream including postcolonialism, critical race theory, cultural studies, Marxism, feminism, new approaches to international law and critical legal theory.10                                                  4 See generally Gathii, “Neoliberalism, Colonialism and International Governance” supra note 1 at 2020; Obiora Chinedu Okafor, “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective” (2005) 43 Osgoode Hall L. J at 178 [Newness, Imperialism, and International Legal Reform]; Muthucumaraswamy Sornarajah, “Economic Neoliberalism and the International Law on Foreign Investment” in Anthony Anghie, Bhupinder Chimni, Karin Mickelson and Obiora Okafor (eds.) The Third World and International Order: Law, Politics and Globalization (Martinus Nijhoff Publishers, 2003) at 173.  However, while fundamentally oppositional 5 See, for example, Anghie, “Time Present and Time Past” supra note 3 at 277 – 279 for a discussion of the Mandate System of the League of Nations and how it served as a continuation of colonialism primarily in the form of economic subordination.  6 See, for example, Gathii, “Neoliberalism, Colonialism and International Governance” supra note 1 at 1996 – 2071; James Thuo Gathii, “Imperialism, Colonialism and International Law” (2007) 54 Buff. L. Rev. at 1013 – 1066.  7 Anghie, “Time Present and Time Past” supra note 3 at 243 – 290; B. S. Chimni, “International Institutions Today: An Imperial Global State in the Making” (2004) 15:1 European Journal of International Law at 1 – 37 [International Institutions Today]; Ibironke T. Odumosu, “Locating Third World Resistance in the International Law on Foreign Investment” (2007) 9 International Community Law Review at 427 - 444 [Locating Third World Resistance]; Anthony Anghie, “International Financial Institutions” in Christian Reus Smit (ed.) The Politics of International Law (Cambridge University Press, 2004) at 217 – 237.  8 Okafor, “Newness, Imperialism, and International Legal Reform” supra note 4 at 171 – 191; Upendra Baxi, “The War on Terror and ‘The War of Terror’: Nomadic Multitudes, Aggressive Incumbents, and the ‘New International Law’ (2005) 43 Osgoode Hall Law Journal at 7 – 43; Upendra Baxi, “Operation Enduring Freedom: Towards a New International Law and Order?” in Anghie et. al, (eds.) The Third World and International Order: Law, Politics and Globalization supra note 4 at 31 – 46; Anghie, Imperialism, Sovereignty and the Making of International Law supra note 1 at 273 – 309.  9 Vasuki Nesiah, “The Ground Beneath Her Feet: TWAIL Feminisms” in Anghie et. al. The Third World and International Order: Law, Politics and Globalization Ibid. at 133 - 143; Celestine I. Nyamu, “How Should Human Rights and Development Respond to Cultural Legitimations of Gender Hierarchy in Developing Countries” (2000) 41 Harvard International Law Journal at 381; J.Oloka-Onyango & Sylvia Tamale, “’The Personal is Political’ or Why Women’s Rights are Indeed Human Rights: An African Perspective in International Feminism” (1995) 17 Hum. Rts. Q. at 691.   10 Gathii, “Neoliberalism, Colonialism and International Governance” supra note 1 at 1997 & 1998; Okafor, “Newness, Imperialism, and International Legal Reform” supra note 4 at 178.  56 to particular aspects of international law, 11 most TWAIL scholars do not reject international law altogether.12 Rather, they seek to transform and reconstruct international law from a language fraught with Eurocentric biases to one which captures the dynamics of difference and diversity.13   They strive for a counter-hegemonic international law.  TWAIL provides the main theoretical groundwork for the analysis in this thesis. It is useful in explaining why the World Bank’s involuntarily resettlement and rehabilitation framework has failed to adequately address the concerns of Affected Communities in the Third World. A TWAIL analysis is also applied to demonstrate that while international law may claim to be neutral, it has established an international economic order in which the proprietary interests of private capital are protected at the expense of the interests of communities displaced by development projects. The analysis contained in this thesis, therefore, adds its voice to TWAIL to support the argument that there are significant continuities and discontinuities between the economic imperialism that was prevalent in the colonial era and the post-colonial neo-liberal globalization that characterizes today’s international investment legal order. Also, like TWAIL, this thesis seeks to displace hegemonic                                                  11 Mutua, “What is TWAIL?” supra note 1 at 36; Madhav Khosla, “The TWAIL Discourse: The Emergence of a New Phase” (2007) 9 International Community Law Review at 295.  12 Chimni notes, for example, that while contemporary international law is fraught with injustices against the Third World, it has also been used - albeit marginally - as a “protective shield” by less powerful states. B.S. Chimni, “Third World Approaches to International Law: A Manifesto” in Anghie et. al., The Third World and International Order: Law, Politics and Globalization supra note 4 at 72. Similarly, Okafor posits that despite a largely hegemonic international law regime, African countries have managed to obtain some modicum of success (largely through resistance) in areas such as access to essential HIV/AIDS drugs. See Obiora Chinedu Okafor, “Poverty, Agency and Resistance in the Future of International Law: an African Perspective” in Falk, Rajagopal and Stevens International Law and the Third World: Reshaping Justice supra note 1 at 105 [Poverty, Agency and Resistance]. I say “most” because, as Okafor observes, there is no monolithic TWAIL theory. Consequently, while some TWAIL scholars seek to reconstruct international law, others are more sceptical of such an effort. Okafor “Newness, Imperialism and International Legal Reform” supra note 4 at 176. 13 Anghie and Chimni, “Third World Approaches to International Law and Individual Responsibility” supra note 2 at 186.   57 international law with an international law that can be used by counter-hegemonic struggles “to advance their own interests, to protect themselves against an oppressive state, to improve their standards of living, and to make their voices heard in the international arena.”14    To support the TWAIL approach adopted in this thesis, the discussion also engages with the various criticisms that have been lodged against development i.e. critical development theory. Literature criticizing development often steers in one of two directions. There are those calling for the writing of an obituary to development.15 These scholars reject the whole institution of development on grounds that it has always been a fake, with no real intention of benefiting those it purports to develop.16 The less radical group contends that the problem is not so much with development as a concept. Rather, the problem is that the rhetoric of development has been used to satisfy the interests of a selected few.17 Proponents of this latter school of thought suggest that we should rethink the whole concept of development to rid it of its hegemony.18                                                  14 Anghie, “Time Present and Time Past” supra note 3 at 243.   Central to this rethinking process is creating mechanisms through which various stakeholders participate in the processes of decision- 15 Wolfgang Sachs, “Introduction” in Wolfgang Sachs (ed.) The Development Dictionary (Johannesburg: University of Witwatersrand Press, 1993) at 1. 16 Ibid. at 1 - 5; Gustavo Esteva, “Development” in Wolfgang Sachs (ed.) The Development Dictionary Ibid at 6 - 25 ; Aturo Escobar, Encountering Development: The Making and Unmaking of the Third World (New Jersey: Princeton University Press, 1995) 55 – 101; Ruth E. Gordon and Jon H. Sylvester,  “Deconstructing Development” (2004) 22 Wisconsin International Law Journal 1-98; Ziauddin Sardar, “Development and the Locations of Eurocentrism,” in Ronaldo Munck and Denis O’Hearn (eds.) Critical Development Theory: Contributions to a New Paradigm, (London: Zed Books, 1999) at 44 – 62; Majid Rahnema, “Towards Post- Development: Searching for Signposts, a New Language and New Paradigms,” in . M Rahmena and V. Bawtree (eds.) Post-Development Reader (London: Zed Publishers, 1997) at 377-404.  17 Balakrishnan Rajagopal, “Counter-hegemonic International Law: rethinking human rights and development as a Third World strategy” (2006) 27:5 Third World Quarterly 767 – 783 [Counter-hegemonic International Law]; Vincent Tucker, “The Myth of Development: A Critique of a Eurocentric Discourse,” in Munck & O’Hearn (eds.), Critical Development Theory: Contributions to a New Paradigm  Ibid. at 1-26 [The Myth of Development]. 18 Rajagopal, Ibid.  58 making.19   While the two camps offer different solutions, both agree on the fact that there is a crisis of development. Also, both attribute this crisis to the actions of economically powerful actors including First World nations, international organizations (particularly IFIs) and multinational corporations.  The thesis employs critical development theory as one of the prisms for assessing the impact of large dams on Affected Communities. Many observe that for centuries, large dams have been constructed to symbolize development.20 Dams manifest the ability of human beings to progress from a state of being controlled by nature to one in which humans achieve economic growth (development) by using science and technology to exploit natural resources.21 It is perhaps no coincidence then that the phenomenal rise in dam construction globally occurred after World War II:22 around the same time that the “underdeveloped world” was “discovered” by the West.23                                                  19 Joseph Stiglitz, “Participation and development: Perspectives from The Comprehensive Development Paradigm” Available at: <  This was also around the time when colonial empire was collapsing, allowing the United States to utilize its newly-gained dominance to http://siteresources.worldbank.org/CDF/Resources/stiglitzparticipation1999.pdf>. 20 Khagram posits, for example, that “Behind the intensified and transnationalized struggles over big dams lie deep struggles between competing visions and models of development.” Sanjeev Khagram, Dams and Development: Transnational Struggles for Water and Power (Oxford University Press, 2004) at 4. Similarly, the World Commission on Dams concluded in its 2000 report that the debate on dams is a debate about “the very meaning, purpose and pathway of development”. World Commission on Dam, Dams and Development: A New Framework for Decision Making – The Report of the World Commission on Dams <http://www.dams.org//docs/report/wcdreport.pdf> at 11. 21 Khagram, Ibid. Dams have been marketed for their development potential including job creation, supporting electricity-intensive industry (and thus increasing productivity) and generating revenue through electricity exports. See, for example, World Commission on Dam, Ibid. at 11. 22 World Commission on Dam, Ibid. at 9. 23 See, for example, Sachs “Introduction” supra note 15 at 2; Esteva “Development” supra note 16 at 7; Tucker, “The Myth of Development” supra note 17 at 7; Gordon & Sylvester, “Deconstructing Development” supra note 16 at 10.   59 channel development funds directly through the United States coffers and indirectly through the IFIs that the US had participated in establishing and funding.24   This turn of events defined the new relationship between the West and the Third World moving from one of colonizer-colonized to one of developed-developing/underdeveloped.25 Herein lie the continuities and discontinuities of international law theorized by TWAILers. As colonial administrators handed over power to Third-World elites, they were replaced by IFIs which these post-colonial leaders had to significantly rely on for financing to build their newly independent states.26 The “civilizing mission” that characterized physical colonial occupation thus moved from the political domination of “backward” societies to the economic domination of “backward” societies.27 This economic domination is largely grounded on a need for the Third World to aspire to develop. As one TWAILer observes, “it is impossible to obtain a full understanding of [the complex relationship between international law and the Third World] unless one factors in … a focus on development discourse as the governing logic of the political, economic, and social life of the Third World …”28                                                     24 Gordon & Sylvester, Ibid. at 11.   25 Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge University Press, 2003) at 25 [International Law from Below]. 26 Ibid. at 26. See also Anghie, “Time Present and Time Past” supra note 3 at 276 – 285 where the author draws parallels between the Mandate System of the League of Nations and the World Bank and IMF.  27 Anghie, Ibid. at 285. 28 Rajagopal, International Law from Below supra note 25 at 1. Elsewhere, Mickelson notes that the history of TWAIL is perhaps most visible in international economic law, which had its most notable history in the context of the formation of the United Nations Conference on Trade and Development (UNCTAD) in 1963. At the first session of UNCTAD, the coalition of the Group of 77 was established and it had as one of its most pressing issues the development of a new policy on trade and development. See Karin Mickelson, “Rhetoric and Rage: Third World Voices in International Legal Discourse” (1998) 16: 2 Wisconsin International Law Journal at 362, 363 & 375 [Rhetoric and Rage].  60 Restricting the analysis in this thesis to an application of critical development theory would not serve the purposes of the thesis because the theory does not deal directly with the role of law in facilitating hegemony. At the same time, TWAIL scholarship encompasses a variety of aspects without concentrating solely on the issue of development. A merger of the two is, therefore, necessary. It is referred to here as the TWAIL Critique of International Law and Development. This blend is helpful in unpacking and documenting the legal tools applied by IFIs to favour macro-economic or hegemonic forms of development over people-centred or counter-hegemonic approaches to development. It also helps in contesting the neo-liberal legal institutions established to protect investment interests in the name of development without providing comparable protection to dam-affected communities.29   Like TWAIL, the discussion is cautious of the fact that empire or hegemony does not operate in a vacuum. The ability of mainstream international law and hegemonic development to maintain centre- stage is made possible not solely through the use of force, by also through co-opting its subjects. Rajagopal opines, for example:  Empire is not a geographical concept in the sense of being co-equivalent with the USA and its outliers, but is a hegemonic concept, with a widely variable composition that includes globalisation. … In fact, the term ‘empire’ is less helpful than the term ‘hegemony’ in understanding the historical patterns of domination and the role of international law therein. This is simply because the role of law in international order is not simply a matter of the most powerful countries imposing it on the rest; it is also a matter of the rest of the world internalising the necessity and legitimacy of domination through law.30                                                  29 See generally Germain Gros & Olga Prokopovych “When Reality Contradicts Rhetoric: World Bank Lending Practices in Developing Countries in Historical, Theoretical and Empirical Perspectives” <http://www.codesria.org/Links/Publications/monographs/Gros.pdf> [When Reality Contradicts Rhetoric]; Joel M.  Ngugi, “The World Bank and The Ideology of Reform and Development in International Economic Development Discourse” (2006) 14 Cardozo Journal of International and Comparative Law at 325 [The World Bank and The Ideology of Reform].   30  Rajagopal, “Counter-hegemonic International Law” supra note 17 at 771. See also Balakrishnan Rajagopal ‘International Law and Social Movements: Challenges of Theorizing Resistance’ (2003) 41 Columbia Journal of Transnational Law at 427 for the observation that hegemony is not necessarily synonymous with force or  61 By obtaining assimilation through establishing allies in the Third World, the European origins of international law and development are underplayed. This allows institutions such as the World Bank to exhibit themselves as the “ultimate arbiters of scientific knowledge about how to achieve development” and pose as the “rational-legal bureaucracy” producing expert and independent knowledge.31 The apparent neutrality has positioned the World Bank as the frontrunner in development issues and enabled it to continue touting large dams and the protection of the private proprietary interests of dam builders as one of the surest ways of achieving economic development.32   At the same time, this position has enabled the Bank to lead the way in determining the prescription for affected communities through its policies on resettlement. In the discussion that follows, I develop three themes which provide useful guidance for the analysis in the rest of the thesis.   III. A TWAIL Critique of International Law and Development: Thematic Components   The TWAIL Critique of International Law & Development produced in this chapter can be divided into three themes. The first theme revolves around the fact that development has been institutionalized and captured by a few powerful actors to fortify their interests and to justify impositions onto others. The second theme illuminates how the universalization and (mechanical) neutralization of legal norms not only undermines the diversity that characterizes the Third World but also results in the further marginalization of already                                                                                                                                                      violence. Rather, it is about the dominant group producing, reproducing and mobilizing popular consent [International Law and Social Movements]. 31 Anghie, “International Financial Institutions” supra note 7 at 223. See also Escobar, Encountering Development: The Making and Unmaking of the Third World supra note 16 at 26.  32 The World Bank has supported numerous dam initiatives including financing studies on dam construction, lending money for construction of dams, providing technological support for conducting feasibility studies and creating institutional frameworks to assist in the planning and implementing of dam projects. See World Commission on Dams, Dams and Development supra note 20 at 171.   62 vulnerable Third World peoples. The last theme observes how resistance has gained currency as a reaction to the suppression caused by universalizing and institutionalizing legal norms and principles.     a) Negative institutionalization of international law and development  Development and international law have been negatively institutionalized. By this, I mean that these concepts have been used to construct meanings aimed at furthering and imposing the ambitions and projects of powerful actors onto the rest of the world.33 This institutionalization defines the boundaries of “what is” and “what is not” by using the West as its reference point.34   Its underlying assumption is one of homogeneity in which Third World countries are presumed to aspire to move from a status of developing to one of (Westernized) developed. The institutionalization is theoretical and practical; it is conceptual and structural. It operates through structures and procedures on the one hand and ways of knowing and being on the other hand. These two “institutions” are inextricably linked since the institutional structures and procedures are often the producers or determinants of the ways of knowing and being. i) Institution as “Structure” The quintessential structural institution is “the West” as a geographical space, symbolized by a statehood to which the Non-West or Third World should aspire.35                                                  33 See, for example, Tucker, “The Myth of Development” supra note 17 at 13.   This is the civilizing 34 Esteva, “Development” supra note 16 at 7 and 12. 35 Conceptually, however, it is generally accepted that the West can no longer be confined to a particular geographical space, especially given the manner in which it has proliferated other societies. Still, the West uses scales such as liberalism, secularism, nation-state, civilization and freedom to distinguish itself from the developing world. These concepts have an element of geographical location since they only fit well in certain parts of the world. See Sardar, “Development and the Locations of Eurocentrism” supra note 16 at 44 & 49.    63 mission. It is obsessed with the “Westernization of the world”.36 In colonial times, it was to be achieved through political control of the “uncivilized” or “backward” societies. In contemporary times, it is embodied in the legacy of the post-colonial state (indirect political control) and imposition of economic policies such as neo-liberalism. While portrayed as neutral and universal, these policies are “planned, directed and controlled by specific international and national institutions that act in ideological concert and reflect the view and interests of certain communities, societies and cultures.”37    A material component of this structural institution is the obsession with the creation of formal legal and economic structures.38 Formal legal structures and the establishment of other independent and well functioning institutions have been touted as being essential to achieving economic growth and development.39 In practice, however, these institutions are largely skewed towards a neo-liberal globalization aimed at supporting private capital through protecting private property rights, lowering transaction costs and insisting on the enforcement of contractual obligations.40 They are designed to include organized institutionalized actors while excluding disorganized or amorphous non-institutionalized actors.41                                                  36 Sachs, “Introduction” supra note 15 at 4.   For example, in the international investment regime, structures such as the International Centre for Settlement of Investment Disputes (ICSID) give participatory rights to institutionalized actors such as states, private investors and to a limited extent, non- 37 Gordon & Sylvester, “Deconstructing Development” supra note 16 at 8. [Emphasis mine] 38 Ngugi, “The World Bank and the Ideology of Reform” supra note 29 at 315; See also generally Yujiro Hayami, “From the Washington Consensus to the Post-Washington Consensus: Retrospect and Prospect” (2003) 20: 2 Asian Development Review at 40 [From the Washington Consensus to the Post-Washington Consensus].   39 Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation (London: Butterworths, 2002) at 445 [Toward a New Legal Common Sense]. 40 Ibid.  41 Odumosu, “Locating Third World Resistance” supra 7 at 443.  64 governmental organizations (NGOs), while denying participation to non-institutionalized groups such as Third World grassroots movements.42   Lastly, structural institutionalization takes the form of actual physical structures. Of particular relevance to the present analysis is the touting of big dams as institutions of progress and development, symbolic of the ability of humans to “harness nature’s forces”.43 It is as such not a coincidence that the World Bank – the international gatekeeper of development – has funded numerous dam projects in the Third World.44   The discussion in the thesis engages with a number of structural institutions including the establishment of international institutional structures such as the Inspection Panel and ICSID and domestic structures such as the ERA. As part of its contribution, this thesis interrogates the roles of these institutions to determine if, and to what extent, they serve the interests of Affected Communities. The institutions of structure are at the centre of deciding what becomes essential and natural to the rest of the universe. As opined in the ensuing discussion, by naturalizing their ways of knowing and being, these structural institutions un-naturalize or abnormalize alternative ways of knowing and being.                                                     42 Ibid. at 431.  43 World Commission on Dams, Dams and Development supra note 20 at 169. Khagram argues that “This vision equated development as a large-scale, top-down, and technocratic pursuit of economic growth through the intensive exploitation of natural resources.” Khagram, Dams and Development: Transnational Struggles supra note 20 at 4.  44 World Commission on Dams, Ibid. at 171; Khagram, Ibid.  at 7.   65 ii) Institution as a Way of Knowing and Being One commentator observes that the dominance of the West rests not in “its economic muscle and technical might” but primarily in its power to define.45 It follows that the expansion of structural institutions such as IFIs facilitates the expansion and domestication of mainstream international law.46 IFIs produce the knowledge necessary to determining the manner in which poor countries can be “known, specified and intervened upon.”47 Through them, a politics of truth is created and maintained but presented as one devoid of political and/or cultural biases.48 To this end, Third World scholars opine that IFIs such as the World Bank are ideological.49 They are ideological because the recipes that they produce as solutions to Third World development problems are based on misconceptions about the Third World and oversimplifications of what has worked in the West.50 In this way, they legitimize “a particular type of society”.51 For example, the World Bank boasts of “knowing”52 determinate ways for achieving economic growth and development.53                                                  45 Sardar, “Development and the Locations of Eurocentrism” supra note 16 at 44. See also Chimni, “Third World Approaches to International Law: A Manifesto” supra note 12 at 60 for the argument that “… dominant social forces in society maintain their domination not through the use of force but through having their worldview accepted as natural by those over whom domination is exercised.”   The 46 Rajagopal, International Law from Below supra note 25 at 40.  47 Escobar, Encountering Development: The Making and Unmaking of the Third World supra note 16 at 45. Rajagopal also observes that international institutions have independently played a significant role in formulating policies relating to colonialism and development and it would be wrong to relegate their position as being one of a mere mouthpiece of the interests of powerful states. Rajagopal, Ibid. at 47 & 48. See also Chimni, “International Institutions Today” supra note 7 at 1 & 2 for the argument that international institutions (of economic, social and political form) constitute a “nascent global state” in which interests of transnational capital and powerful states are realized.    48 Escobar Encountering Development: The Making and Unmaking of the Third World supra note 16 at 46 & 52. Escobar maintains that development creates an institutional field from which discourses are produced, recorded, stabilized, modified and put in circulation. 49 See generally, Ngugi, “The World Bank and the Ideology of Reform” supra note 29 at 313 – 345.  50 Ibid. at 316.  51 Ibid. at 320.  52 I place emphasis on “knowing” because it is, I argue, a form of institutionalization in which one actor takes the responsibility of “studying” and imposing “solutions” on another, often without meaningfully incorporating the realities of those being studied or without engaging subjects in the capacity of knowledgeable contributors.  53 Ngugi, “The World Bank and the Ideology of Reform” supra note 29 at 315.    66 Bank packages its development recipes as universal and scientifically determinable, thereby delegitimizing alternative approaches to development.54 It maintains that its recipes are superior because of their “dominance while their dominance is explained in terms of their superiority.”55 Where the Bank’s policies fail to achieve the promised growth, the failure is blamed on weaknesses in implementation mechanisms.56   This is evidenced in Chapter Three, for example, where the World Bank attributes the failure of resettlement and rehabilitation initiatives to poor implementation and inadequate supervision. However, the fact that the World Bank is ideological does not necessarily translate into a rigid application of its internal rules. It is both an open and a closed system. It is open in the sense that it takes into account criticisms, and closed because the incorporation of and reflection on criticisms does not destabilize its ideological core.57 As some have concluded, the Bank remains convinced that it is the ultimate “knower” of (a) what development is, and (b) how to bring about development.58   In Chapter Four, this character of the Bank as an open and closed system is exemplified by the manner in which the Bank’s Board of Directors responds to issues raised about the operation of the Inspection Panel.  Law plays a central role in instructing the ways of knowing and being – or at least in legitimizing one way of knowing over another.59                                                  54 Ibid. at 324. See also Anghie, “International Financial Institutions” supra note 7 at 223 for the argument that IFIs exercise a claim to neutrality and independence by presenting “themselves as the ultimate arbiters of scientific knowledge about how to achieve development or monetary stability”.  For example, the history of the expansion 55 Ngugi, Ibid.  56 Ibid. at 334.  57 Gros & Prokopovych, “When Reality Contradicts Rhetoric” supra note 29 at 18. 58 Ibid. at 42.  59 Pahuja opines, for example, that one of the “gifts of knowledge” that developed countries claim to give to the developing is that of law. See Sundhya Pahuja, “Beheading the Hydra: Legal Positivism and  67 of the “law and development project” at institutions such as the Bank reveals a significant reliance on Western legal scholars to guide the planning of development projects and provide personnel to manage the projects.60 This had a significant bearing on the construction of meanings because by recruiting scholars especially from the United States, there was a further concentration on westernizing Third World legal systems as a precondition to development.61 One scholar argues that in fact, there is a transcendental relationship between (positive) law and development.62 Each of these concepts is part of a dynamic but stable web of concepts that rely on each other to assert themselves as “self evidently true” or claim universal status.63 To this end, a “proper ‘law’ is one which promotes ‘development’ as a process. And development as an end-point is reached when institutions such as ‘law’ can be found.”64     It is difficult to disentangle definitional power from economic prowess. Too frequently, the power to determine “what is” derives from money muscle. Tucker observes, for example, that North American and European universities are able to produce more knowledge than universities in other parts of the world because of their access to huge research grants.65                                                                                                                                                      Development” 2007 (1) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/elj/lgd/2007_1/pahuja> at 3 [Beheading the Hydra].  Similarly, Ngugi concludes that one of the reasons why the World Bank is able to maintain its ideological stance is the sheer amount of resources that it has for research, employing 60 David Trubek & Marc Galanter, “Scholars in Self-Enstrangement: Some Reflections on the Crisis in Law and Development Studies in the United States” (1974) Wisconsin Law Review 1065. See also Chimni, “Third World Approaches to International Law: A Manifesto” supra note 12 at 60 for a discussion of the role of Northern academic institutions in the spread of international law.  61 Gordon & Sylvester, “Deconstructing Development.” supra note 16 at 18.  62 Pahuja, “Beheading the Hydra” supra note 59 at 3. 63 Ibid. 64 Ibid. at 7.  65 Tucker, “The Myth of Development” supra note 17 at 13.   68 competent professionals (particularly economists) and financing and co-financing projects.66   Consequently, while many will agree that we can no longer attribute the power to define solely to economic capital, it is counterproductive to deny that these resources do not tip the bargaining power. In investments such as the ones studied in this thesis, economic muscle gives multinationals a voice in defining the terms of business. The result of negative institutionalization is a naturalization, legitimization, universalization and neutralization of international law and development for the purpose of intervening into the affairs of those who do not comply with this “natural order”.67 As the discussion in the thesis will demonstrate, this allows international law to domesticate itself by dislocating local agencies in the making of laws.68    b) Diversity of the Third World: countering the universal, neutral and scientific  Both TWAIL and critical development theory pose an ideological challenge to the “imperialism of sameness”.69 They contest the image that the West constructs of the Third World as a homogeneous entity defined by poverty, backwardness, filth, corruption and irrationality.70                                                  66 Ngugi, “The World Bank and the Ideology of Reform” supra note 29 at 331 – 334.  TWAILers agree that the category “Third World” relates to certain geographical spaces that have shared experiences of subordination and marginalization 67 Ngugi is of the opinion that the Bank insists on formal legal institutions in order for it to acquire a definitive discourse that rationalizes and justifies its economic intervention in the affairs of developing countries. It becomes responsible for installing the “appropriate” institutions. Ngugi, Ibid. at 319 & 320.  68 Okafor, “Poverty, Agency and Resistance” supra note 12 at 100 - 104. See also generally James Thuo Gathii, “A critical appraisal of the NEPAD agenda in the light of Africa’s place in the world trade regime in an era of market centered development” (2003) 13 Transnational Law and Contemporary Problems at 179 – 210. 69 Upendra Baxi, “What may the ‘Third World’ expect from International Law?” in Falk, Rajagopal and Stevens (eds.) International Law and the Third World: Reshaping Justice supra note 1 at 10; Sachs, “Introduction” supra note 15 at 4. 70 Gordon & Sylvester, “Deconstructing Development” supra note 16 at 2.   69 dating back to the colonial era.71 They also agree that the Third World relates to those parts of the world that are neither European in particular nor Western in general.72 However, they maintain that while Third World states and peoples are similar, they are not the same. The Third World consists of a chorus of voices that distinguish the shared similarities from the sameness with which the outside world seeks to understand the former.73   For purposes of this thesis, it is important to underline this dynamics of difference. The critical analysis contained in the thesis demonstrates that a homogenization of Third World peoples is dangerous because the failure to respect diversity results in the further marginalization of Affected Communities. This is because such perceptions ignore the fact that even the ability of different Third World peoples to influence change in the international legal order has not always been the same. Some actors have, for a number of reasons, been able to compel international legal reform in ways that others are yet to achieve or even dream of. For example, in addition to being one of the World Bank’s major “clients”,74 India has also been able to influence institutional reform because of the magnitude of dam-construction in the country.75                                                  71 Mickelson, “Rhetoric and Rage” supra note 28 at 360; Okafor, “Newness, Imperialism, and International Legal Reform” supra note 4 at 174 & 175.   Also, perhaps because of the country’s 72 Mutua, What is TWAIL? supra note 1 at 35. 73 Mickelson, “Rhetoric and Rage” supra note 28 at 360. 74 The Bank lends vast amounts to India when compared to most other developing countries. Darrow notes, for example, that India is one of a small group of Asian countries that have consistently been beneficiaries to IDA’s funds. He adds that in fact, the IDA was at one time informally named the “India Development Association”. Mac Darrow, Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law (USA: Hart Publishing, 2003) at 14 [Between Light and Shadow].  75 Khagram reports, for example, that India was one of the leading dam builders in the world in the second half of the twentieth century. Khagram, Dams and Development: Transnational Struggles supra note 20 at 29.   70 huge population, India is one of the pioneers and an internationally significant site for anti- dam movements in the world.76   Fox reports that: Geographically, of the fourteen claims filed during the [Inspection] panel’s first five years, almost half involved either Brazil (three claims) or India (three claims, if one includes Nepal’s Arun Dam, designed to provide power to India.) Moreover, locally based international and environmental or human rights protests against Bank-funded infrastructure projects have long been especially prominent in Brazil and India, perhaps related to the density of their civil societies.77   Sustained resistance breeds institutional reform. The ability of grassroots movements in India to mobilize, sustain and organize resistance has influenced a number of reforms in international institutions such as the Bank. For example, the country’s grassroots movements were a catalyst for the establishment of the first ever quasi-independent panel established at the World Bank in September 1993 to review the Bank’s compliance with its operational policies and procedures.78 This resistance has also informed the reform of the Bank’s policies on rehabilitation and resettlement, indigenous peoples, human rights and environmental issues.79                                                  76 Ibid. at 11 – 26.    Invariably, the resistance has resulted in the production of alternative norms and rules that take cognisance of the plurality of international law’s population. However, even where reforms have been made, they are largely restricted to an attempt to understand the particular Third World populations that have compelled the 77 Jonathan A. Fox, “The World Bank Inspection Panel: Lessons from the First Five Years” (2000) 6 Global Governance at 291. See also Lori Udall, “The World Bank and Public Accountability: Has Anything Changed?” in Jonathan A. Fox & L. David Brown (eds.) The Struggle for Accountability: The World Bank, NGOs and Grassroots Movements (Cambridge, Massachusetts: The MIT Press, 1998) at 396 & 397.  78 Rajagopal, International Law from Below supra note 25 at 122. See also Khagram, Dams and Development: Transnational Struggles supra note 20 at 195.  79 Khagram, Ibid. at 194. Khagram posits that as a result of the criticisms regarding high displacement costs in the Narmada Projects, in 1985, the Bank conducted a review of resettlement practices on a portfolio of hydro and agriculture projects over a period of six years. The findings of this review would later contribute to the reform of the Bank’s policy on resettlement.  71 reforms to be made. The result has been a revision of policies that many times continue to treat Third World states as a block and Third World peoples as a homogenous part of this block. Perhaps no where is this issue more evident in the thesis than the discussion of the definition of indigenous peoples contained in Chapter Three. As another theoretical contribution to this dynamics of difference, the Conclusion to the thesis maps out an alternative theory of resistance that distinguishes between the experiences of different Third World countries.  Some may interpret this emphasis on the dynamics of difference as reflecting a wider incoherence within TWAIL as a theory.80 In response, this thesis joins other TWAILers in maintaining that the Third World is a complex entity. Its existence is defined as much by its multiple similarities as it is by its stark differences. To attempt to reduce it to a uniform, standard and internally consistent entity would be to undermine its on-the-ground realities. As one TWAIL scholar has noted, the Third World is not defined by “the existence and validity of an unproblematic monolithic third-world category.”81 Rather, it is defined by the shared historical and continuing experiences of subordination82 that denote “a unity that transcends the enormous diversity that marks it”.83                                                    80 Mickelson observes, for example, that there is a conventional view among legal scholars that the “Third World approach” is neither coherent nor distinctive. She argues against such a position by noting that there is a unifying set of characteristics that correctly identify this Third World approach. Mickelson, “Rhetoric and Rage” supra note 28 at 353.  81 Okafor, “Newness, Imperialism, and International Legal Reform” supra note 4 at 174. See also Obiora Chinedu Okafor, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?” (2008) 10 International Community Law Review at 375 [Critical Third World Approaches to International Law].  82 Okafor, “Newness, Imperialism, and International Legal Reform” Ibid. at 174. 83 Anghie & Chimni, ““Third World Approaches to International Law and Individual Responsibility” supra note 2 at 185. See also Chimni, “Third World Approaches to International Law: A Manifesto” supra note 12 at 49; Mickelson, “Rhetoric and Rage” supra note 28 at 412.   72 What then are the implications of acknowledging the various pockets of diversity that define the Third World? Does not such recognition result in the production of an international law that is uncertain, inconsistent and unable to stand the test of universality? In answering this question, we need to remind ourselves that mainstream international law cannot boast of universal origins. While it is difficult to imagine an international law that is not universal, we need to recall that international law’s universal status is quite recent and biased – a product of the imperial expansion which became eminent at the end of the nineteenth century.84 The project of universalizing this law was concretized with the recruitment of former colonies as “sovereigns” into the international legal order.85   Consequently, if mainstream international law has been certain or consistent, these attributes have largely been as a result of the protracted domination of certain views over others; not as any indicator of either their justness or validity. Also, the ability to claim universal status is not because those affected assent to this law but because a few dominant groups have used various means to impose their ways of knowing and being. As such, by acknowledging diversity even within these formal set-ups, we produce an international law that is consistent with the realities of international law’s population. Therefore, instead of a dogmatic insistence on a Eurocentric, “stable” and “consistent” international law, what can be aspired to is a degree of predictability and certainly that takes into account the realities and complexities of those that this international legal regime seeks to govern. This is the counter-hegemonic law that the thesis and TWAILers map out. As one scholar has argued, “Counter-hegemonic globalization is … a plural project. Herein lies both its strength and its                                                  84 Anghie, Imperialism, Sovereignty and the Making of International Law supra note 1 at 32.  85 Ibid. at 197.  73 weakness. Such plurality and diversity does not preclude the possibility of communication, mutual understanding and co-operation among the different struggles.”86   This counter- hegemonic law by its nature cannot afford to be rigid as it should incorporate and be defined by non-formal systems of law-making, such as resistance.  c) Resistance: writing a counter-hegemonic theory into international law  According to TWAIL scholars, the composition of the “makers of legal change” is quickly expanding.87 Whether it be in the sophisticated and highly institutionalized area of the international investment regime88 or other issue areas such as democracy, development and environment,89 TWAIL scholars insist that we can no longer ignore the role that resistance is playing in transforming and shaping the international legal order.90 Resistance is being used by Third World peoples to break the fetishism of institutionalization91 on the one hand and as a channel for communicating plurality and diversity on the other hand. Consequently, TWAIL scholars encourage other international lawyers to begin seriously engaging with resistance as a source of legal reform.92 It is time to write a theory of resistance into the law.93                                                  86 Santos, Toward a New Legal Common Sense supra note 39 at 459.   87 Rajagopal, International Law from Below supra note 25 at 167.  88 See generally Odumosu, “Locating Third World Resistance” supra note 7.  89 Rajagopal International Law from Below supra note 25.  90 For Chimni, the starting point of TWAIL’s narrative should, in fact be, making resistance an integral part of international law. Chimni, “Third World Approaches to International Law: A Manifesto” supra note 12 at 67. See also generally Balakrishnan Rajagopal, “International Law and Third World Resistance: A Theoretical Inquiry” in Anghie et. al., (eds.) The Third World and International Order: Law, Politics and Globalization supra note 4 at 145 – 172. 91 Rajagopal, “Counter-hegemonic International Law” supra note 17 at 781.  92 Rajagopal, International Law from Below supra note 25 at 23. Similarly, Odumosu notes that resistance is not new to international law. Hence, if theories of resistance have only recently gained audience, it is not due to the absence of resistance in international. Rather, it is because scholars largely refrained from incorporating it into the law. Odumosu, “Locating Third World Resistance” supra note 7 at 427. 93 See generally, Rajagopal, “International Law and Third World Resistance” supra note 90.   74 As one TWAILer observes, “Irrespective of the nature it subsequently acquires, the initial process of activism is inherently domestic.”94 This is testimony to the fact that hegemony is neither situated in a particular geographical space nor limited to the interaction between Third World and First World nations. Because Third World states many times act counter to the interests of their own peoples, it is equally important to draw a distinction between Third World states and Third World peoples when examining the challenges faced by the latter.95 Resistance is the act through which Third World peoples oppose and organize against a ruling elite that prioritizes the interests of capital over true national interests.96   As the Conclusion to this thesis reveals, even in countries such as Uganda where resistance was largely absent, the events that have occurred in the last decade suggest that the culture of resistance in the country may be revised.   Perhaps nowhere have the struggles against the “privatization” of law been more prevalent than the area of large dam building. Through transnational movements generated by NGOs, grassroots and social movements, traditionally weak actors have been able to alter the policies and actions of traditionally powerful actors such as IFIs, states and multinational corporations.97                                                  94 Odumosu, “Locating Third World Resistance” supra note 7 at 431.   Resistance against large dams has facilitated the reconstruction and reform of issue areas in international law including the environment, human rights and indigenous 95 TWAIL scholars observe that Third World peoples are increasingly finding it hard to depend on their states because the latter have parcelled out their sovereignty to actors above the state (such as international institutions) and below the state (market actors and NGOs). See Rajagopal, International Law from Below supra note 25 at 12; Rajagopal, “International Law and Social Movements” supra note 30 at 419. Similarly, Baxi contends that because the post-colonial state was created in the image of the West, is has furthered the latter’s interest and continued to posses residues of colonialism and oppression. Consequently “Third World (and now post-socialist) state-formative practices and insurgent struggles emerge either as the clones of a resurgent First World or as ‘outlaws’ always entirely worthy of sustainable, and fierce, repression.” Baxi, “What may the ‘Third World’ expect from International Law?” supra note 69 at 9 & 10. 96 Chimni, “Third World Approaches to International Law: A Manifesto” supra note 12 at 51. 97 See generally Khagram, Dams and Development: Transnational Struggles supra note 20.   75 peoples.98 For example, it is grassroots movements that led to the adoption of an internal Bank policy on indigenous peoples in 1982 and a revision of the Bank policies on resettlement and environmental assessment.99  Similarly, Chapter Four discusses in detail the contribution of resistance to both the formation of and reforms in the World Bank Inspection Panel. However, as Chapter Five demonstrates, resistance is yet to significantly shift or shake the language of law to protect the interests of Affected Communities in the manner that it protects the interests of private capital.100    One scholar attributes the success of resistance to three main factors. First, the ability to organize and sustain mobilization, often supported by the presence of democratic political institutions.101 Second, it helps if the norms and principles being advocated by movements are institutionalized in the structures of states, multilateral agencies and multinational corporations.102 Third, the ability to sustain resistance is encouraged by the emergence of transnational coalitions among actors interested in similar norms and principles.103                                                  98 Ibid. at 15. See also David Szablowski, Transnational Law and Local Struggles: Mining, Communities and the World Bank (Oregon: Hart Publishing, 2007) at 89 & 90.  The discussion in this thesis acts as an expansion of the theories of resistance put forth by Third World scholars. Particularly, the thesis builds on two important ingredients of successful resistance: the role of democratic institutions and the benefits of common/shared values. The existence of democratic institutions is central to the sustenance of resistance. Whether it 99 World Commission on Dams, Dams and Development supra note 20 at 19.  100 See also Ibid. at 188 for the argument that the Bank continues to place more emphasis on pr