Human Rights Situation Report

Seinoli Legal Centre (SLC) with the Human Rights Institute of South Africa (HURISA) submitted a Human Rights situation report on the communities being affected by large Infrastructure projects in Lesotho at the 75th Ordinary Session of the African Commission on Human and People’s Rights held in Banjul, The Gambia. The report focused on the Human Rights violations emanating under LHWP Phase II in Polihali and the L-BWT scheme in Makhaleng.

The article can be accessed in this week’s Public Eye newspaper Vol. 26. No 19 on page 16 titled “Opinion of Lesotho’s dams, environmental impact and compensation.

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Open Letter to President Ramaphosa on the Occasion of SOD Turning of LHWP Phase II Main works on 23rd May 2023

The Presidency

Union Buildings

Government Avenue,

Pretoria

Private Bag X1000,

Pretoria,

0001

19th May 2023

Dear President Cyril Ramaphosa,

Your visit to Polihali, Mokhotlong, to officially launch full-scale construction work of Phase II of the Lesotho Highlands Water Project (LHWP II) on the 23rd of May 2023, is highly welcomed.

Mr. President, when this project was concluded under the 1986 LHWP Treaty, it was celebrated for the immense economic returns that would accrue to both Lesotho and South Africa including sustainable development for local affected communities. South Africa and Lesotho made an undertaking, in the Treaty, “to take all reasonable measures to ensure that the implementation, operation, and maintenance of the Project are compatible with the protection of the existing quality of the environment and, in particular, shall pay due regard to the maintenance of the welfare of persons and communities immediately affected by the project.” The reality for communities, however, is in stark contrast to this undertaking.

As you know, Phase I of this project, which involved the construction of Katse Dam (under Phase IA) and Mohale Dam (under Phase IB) was inaugurated in 2004. Over 20 000 people were directly affected by this first phase of LHWP. Thousands remain without compensation for the adverse impacts of the project on their lives and no efforts were made to actively ensure that communities get direct economic benefits. Communities living in the vicinity of both the Katse and Mohale Dams endure consistent violations of their right to access to clean water, as access to natural springs and other water sources was impacted by the dams. Mr. President, communities are not allowed to access water from the dams to drink their animals or to irrigate their crops. Women within LHWP Phase II affected communities are already marginalized as a result of cultural stereotypes which prevent women from owning land and benefiting from compensation for land rights that get affected by LHWP. Lack of access to water further marginalizes them and exacerbates their inability to break free of poverty.

While there is a responsibility for the Lesotho Highlands Development Authority to uphold the agreement, there is a significant perception among communities affected that impacts the image of South Africa negatively. This fundamentally detracts from South Africa’s Africa Agenda and desire to be a partner to Africans. Moreover, affected communities are likely to seek further economic opportunities in South Africa.

Mr. President, you may recall that the LHWP Treaty was signed during the apartheid government in South Africa and a military regime in Lesotho. It was concluded during a period when both governments had no regard for human rights and the dictates of democracy and good governance. In fact, no consultations were undertaken at all with the people of Lesotho in general and the affected communities. Any dissent expressed against this project was thwarted with threats and violence. It is therefore not surprising Mr. President that the Treaty has failed to promote, respect, and protect the human rights of people immediately affected by the project.

When South Africa decided to implement Phase II following prolonged negotiations and signed the agreement to that effect in 2011, it was in the context of these residual issues which remain outstanding to date. This occasion of your visit to the Polihali Dam project site presents an opportunity to ensure that this phase does not repeat the same mistakes, and guarantee that the communities who have given way to this dam are placed at the center of this project. 

Mr. President, the further implementation of advanced infrastructure works to pave the way for the construction of LHWP II, known as the Polihali Dam has already had an adverse impact on the livelihoods of communities affected by this component of the project. Land and other natural resources which are the basis of the communities’ livelihoods have been expropriated by the project without payment and compensation. The transition into the next component of LHWP II, marked by the occasion of your visit on the 23rd of May 2023, will lead to the renewed physical and economic displacement of families. The LHWP Phase II feasibility studies have estimated that about 16 villages will require to be relocated or resettled due to close proximity to the dam and/or significantly impeded access in the event of floods. And again, thousands will be economically displaced as a result of the acquisition and inundation of their agricultural land, grazing land, including natural resources. The result is imminent food insecurity, impoverishment, and the breakdown of social networks and culture.

Climate change and the growing South African population and economy dictate that South Africa will increasingly rely on water from Lesotho. The role and importance of LHWP and the anticipated phases beyond the Polihali Dam, necessitate that great care be taken to secure ownership and buy-in of communities who have hitherto remained dissatisfied with this project. The challenge, Mr. President, for this occasion and for the government of South Africa is to address South Africa’s interests in keeping this bilateral project more significant to both countries without losing sight of the longer-term sustainable development of local communities.

We, therefore, call upon you to:

1) Review, as a matter of urgency, the LHWP Treaty to align it with the international human rights standards for better protection and promotion of the rights of affected communities.

2) Devote your time whilst in Lesotho to meet with Civil Society Organisations and the communities affected to hear their concerns regarding the implementation of LHWP Phase II first-hand.

3) Engage the government of the Kingdom of Lesotho and LHWP’s implementing authorities on the challenges facing communities affected by Phase I and Phase II of the LHWP, address human rights violations of communities, and ensure their right to development and restore their livelihoods.

4) Assist the Kingdom of Lesotho and Lesotho Highlands Development Authority to overhaul the entire LHWP Legal and Compensation Framework, to ensure fair and adequate compensation for communities.

5) Support the Kingdom of Lesotho and Lesotho Highlands Development Authority to formulate as a matter of urgency, Livelihoods Restoration Policy, which is in line with best international standards, to ensure that affected communities’ livelihoods are improved.

6) Undertake, as a matter of urgency, a forensic audit of all compensation funds intended for the affected people.

Respectfully,

Signed: 

1. Seinoli Legal Centre (SLC)

2. Survivors of Lesotho Dams (SOLD)

3. Catholic Commission for Justice and Peace (CCJP)

4. Southern Africa Litigation Centre (SALC)

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Advertisement-Film Expert

Background

The Seinoli Legal Centre (SLC) leverages the Rule of Law as a tool for protecting, restoring, and enhancing the sustainable livelihoods of local communities. Our mission is to provide communities affected by large development projects with sustained, comprehensive access to the law to safeguard social, economic, and environmental rights. Our comprehensive and unique approach combines strategic litigation, advocacy, and capacity building of both our local client communities and the local legal system.

Project/ Job Summary

Seinoli is looking for a professional filmmaker or film production company to produce a documentary film, which will document the environmental, social, and economic impacts of large water infrastructure projects on the local communities in Lesotho. The intention is to draw attention to the human rights violations which marginalized communities endure as a sacrifice for the economic growth of their country, to influence policy, and to secure better development outcomes for the community.

The foundation of the documentary will be on the LHWP-affected communities in both Phase I and II and showcase the impacts in both phases and draw lessons that should inform the implementation process and development of policies for the anticipated Lesotho Botswana Water Transfer Scheme. The entire film production which includes filming, editing, voicing/narration, etc. should be done by the film expert, delivering a final ready-to-air product in broadcast standards and in HD technology format 16:9. The entire development and production process will be closely monitored by Seinoli and will provide a continuous review, comments, and thematic inputs support when needed.

Key Responsibilities/ Main duties

Seinoli has already produced three film pieces in the two project areas, where the LHWP phase II is currently being implemented, and in Makhaleng where the new L-BWT scheme will be implemented. Two more film pieces are expected to be shot and all five short films merged together in one 45min-1 hour documentary, with voiceovers and English subtitles. In order to achieve this, the selected individual or company is required to carry out the following:

• Visit the selected project sites and interact with the local communities/beneficiaries who have been impacted by the project.

• Submit a storyboard and script for the documentary.

• A detailed timeline and work plan should be submitted. A detailed budget and shooting schedule (pre-production, production, and post-production should be provided upon contract signing.

• Perform appropriate video filming and shoot interviews with the projects’ beneficiaries and stakeholders, and produce high-quality project still photographs.

• Incorporate all five film pieces into one final documentary film of about 45 min-1 hour. 

• Add relevant audio-visual material such as background music and scenic videos shot during production or which have been sourced from public domains but acknowledge sources.

• Deliver the final products through a cloud storage platform; final files will include completed videos in MP4 format and open files (raw project files) and photographs in JPEG format.

Duration

The duration of the entire project is expected to take 40 working days from the date of signing. This includes 10 days of the actual shooting in Mokhotlong and Katse respectively. The editing period will be one month, which involves editing of the two films and compiling all five films into one documentary of about 45min- 1 hour.

Key deliverables:

1 documentary of about 45min-1 hour with voice-overs, English subtitles, aerial shots, and still pictures.

Interested individuals or companies should submit a technical and financial proposal in relation to the terms of reference indicating their interest and providing the following information and documents

1. Detailed Company profile

2. More than 5 years of experience working in the film industry or a similar field. 

3. Submit a portfolio consisting of documented work experience in the area of film/reportage/documentary writing, producing, directing and editing, and photography.

4. References indicating collaboration and work with non-governmental organizations.

Budget

Provide a detailed breakdown of all estimated costs, including estimated days of shooting, production team, days of editing, travel costs, music, and total cost for the final product. Please note that no additional payments will be made outside of the total budget.

Expression of interest by individuals or companies should be submitted via email to info@seinoli.org.ls.dream.website by the 2nd of June 2023. Applications must be submitted in PDF.

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The water-deprived communities

By Leonie March, Freelance Journalist at AfrikaRiff, Weltreporter and RiffReporter in collaboration with Seinoli Legal Centre.

The Katse reservoir nestles picturesquely against the mountain slopes and meanders through several valleys, and the smooth water surface reflects the clouds in the Lesotho highlands. Surrounded by neighboring South Africa, the small kingdom in the mountains is considered the water tower of the entire region. The dam has supplied the South African economic center around Johannesburg with drinking water since 1998.

It is the heart of the so-called Lesotho Highlands Water Project, which consists of dams, tunnel systems, pumping stations, and hydroelectric power plants. It is one of the “most successful transboundary water management systems in the world”, according to the responsible authority, the Lesotho Highlands Development Authority (LHDA).

“The water belongs to South Africa and no longer to us”

But when Mothusi Seqhee looks at the huge glittering expanse of water, he sees something different: “The water belongs to South Africa and no longer to us,” he says. “We can’t use it how we want. It’s a problem.” Seqhee works for the Seinoli Legal Center – an NGO founded in 2010 to represent the interests of displaced or dispossessed villagers because of this major project.

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Bearing the costs of construction and the price of water.

Katse Dam is the first Phase of the Lesotho Highlands Water Project which was constructed in 1991 and completed in 1998 on the Malibamats’o River, a tributary of the Orange Senqu River. The communities living around the dam area have experienced several adverse consequences including social disarticulation, dispossession of livelihoods, and cultural alienation to name but a few. One of the glaring issues concerning this project is how the communities no longer have access to water. This past week, the world celebrated international water day, yet the communities in Katse claim not to have access to clean running water. The communities also have to walk long distances to the limited water sources which have been availed to them after losing their natural water resources.

The communities’ natural springs and wells have dried up as a result of the project, which has resulted in perplexing life changes amongst the communities. For 16 years, the village of Mapeleng lacked access to clean drinking water. During the inundation of the Katse dam, the community’s natural springs dried up. The community literally drank from ponds containing unclean water and the entire village suffered from waterborne diseases. 20 years later, the communities that sacrificed to make way for the dam project, continue to suffer immensely.

There is an urgent need to flip the lens towards the needs of communities so as to close the justice gap and safeguard the rights and sustainable livelihoods of communities being affected by large development projects. Project implementors must ensure access to water and sanitation as a preventive measure and a prerequisite for an adequate standard of living.

Water is a critical dimension of sustainable development as articulated in SDG-6 ( Ensure availability and sustainable management of water and sanitation for all) which states that by 2030 that there should be equitable access to safe and affordable drinking water for all, access to adequate and equitable sanitation and hygiene for all and end open defecation, paying special attention to the needs of women and girls and those in vulnerable situations and the Water Act 2008 justifies that water is one of the most important resources.

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Can anyone hear the socioeconomic and environmental alarm bells on Lesotho Highlands Water Project?

By Seinoli Legal Centre Executive Director, Reitumetse Nkoti Mabula and Oxfam South Africa Global Impact Manager, Marianne Buenaventura.

The next phase of the Lesotho Highlands Water Project is underway, and the human rights costs are high. Hundreds of families will be involuntarily resettled and displaced from their homes and lands. Multitudes stand to lose thousands of hectares of arable and grazing land.

Recognized as one of the most outstanding engineering achievements of the last century, the Lesotho Highlands Water Project (LHWP) is indisputably an engineering marvel that was also hailed for the profound economic benefits it would bring to both Lesotho and South Africa.

It has instead become internationally notorious for its devastating socioeconomic and environmental impacts on highland and downstream communities. But this is hardly ever highlighted as much as the engineering achievements or the perceived economic and service delivery benefits for the two countries.

Phase 1 of the project, involving the construction of Katse Dam and Muela Hydropower Station (Phase 1A) and Mohale Dam (Phase 1B), dispossessed more than 30,000 Basotho of their cropland and grazing land. The expropriation of land was executed without equitable/fair compensation and proper livelihood restoration plans.

The project submerged 1,500 hectares of arable land, 1,900 ha of cropland and more than 5,000 ha of grazing land, exacerbating soil erosion and overgrazing as farmers were forced to cultivate on progressively steeper slopes and graze animals in increasingly smaller and condensed areas.

There have been long-term concerns that communities did not get direct economic benefits and/or continued support where such benefits had been provided. Many of these communities are without water, and in some, the water supply from natural springs has been polluted while others have been destroyed due to a lack of maintenance.

Communities are not allowed to access the dam water for household use, irrigation or for livestock to drink. Fishing in the dam was for a long time expressly prohibited until recently. Communities are now permitted to fish with a fishing licence.

“The dam contributed to increasing vulnerabilities, including the risk of HIV infection. Relationships between female residents and construction workers were common, and transactional sex (the exchange of sex for money or gifts) between local schoolgirls and construction workers was rife. HIV/Aids infection rates skyrocketed in construction areas, yet these communities remain without access to basic healthcare services.”

“With the social influx and labour migration expected when construction of the dam itself commences, the risk that transactional sex will resume also increases the risk of increased HIV-infection rates, especially among young women. Research has shown that adolescent girls and young women are significantly more at risk from HIV infection due to transactional sex, compared with men and boys of the same age.”

These are known facts, to both Lesotho and South Africa, and it is heartbreaking that they have now started the second phase of the LHWP without addressing these residual issues, which violate human rights on many levels.

These violations include unfair evictions and the relocation of indigenous communities from their traditional lands; sexual and gender-based violence being exacerbated by increased labour, including migrant labour required for construction work; and extensive environmental degradation, including water and other critical natural resources on which communities rely for both sustenance and their livelihoods.

Contracts for the construction of Polihali Dam, Phase 2, were awarded in November 2022. There are 36 affected communities in the remote Mokhotlong district where the dam will be constructed.

Hundreds of families will be involuntarily resettled and displaced from their homes and lands, a process that will have significant economic and socio-cultural implications for generations to come. Multitudes stand to lose thousands of hectares of arable and grazing land.

The result is going to be food insecurity, impoverishment and the breakdown of social networks and culture. But this is not being given as much attention as the majestic bridges, the gigantic dam and the beautiful roads that open the highlands to tourists.

Up to this point, the Lesotho Highlands Development Authority (LHDA), the project’s implementing authority, has been implementing advanced infrastructure works (such as the construction of roads and bridges and the erection of power lines) to make way for the construction of the Polihali Dam. There are nine communities that are at the epicentre of these works.

Astoundingly, the governments of South Africa and Lesotho have not learned any lessons from the implementation of Phase 1, because the same mistakes are being repeated:

  • Compensation is not being paid or is delayed and inadequate;
  • Access to water has been impeded and women are forced to walk long distances to fetch water at times from unsafe water sources shared with animals. Some are forced to collect water from river streams that have been polluted by LHDA contractors;
  • There is no access to health facilities – people are forced to walk up to two hours to access the nearest health centre; and
  • There are reported cases of sexual exploitation of young women who are forced to sell their bodies for work or for money. With the social influx and labour migration expected when construction of the dam itself commences, the risk and prevalence of HIV in these communities will increase, contributing to increasing vulnerabilities within communities and particularly among women.

Lesotho has in recent years been affected by climate change shocks including unusual dry seasons and heavy rains which have affected agricultural production, leaving the majority of the population food insecure with at least 521,000 people in food crisis. The Polihali Dam is going to worsen the situation.

It is therefore imperative that government officials from South Africa and Lesotho – and also development finance institutions supporting the project (the Development Bank of Southern Africa, the New Development Bank and the African Development Bank) – ensure that project compliance with environmental, social and climate-related standards are met from the earliest stages of the project.

There is an urgent need for the LHDA under Phase 2 to mitigate the severely negative impacts of the dam construction and operation on communities by ensuring, among others, meaningful consultation with communities throughout all project planning and implementation stages; adequate and fair compensation for resettlement, including for women; and devising a responsive livelihoods restoration policy which takes into consideration climate change shocks.

It is well known that large infrastructure projects can increase the risk of several forms of gender-based violence (GBV) such as sexual exploitation and abuse and sexual harassment, including the demand for sex work. Mega-infrastructure projects such as the first phase of the LHWP have proven to increase the vulnerability, including worsening levels of poverty, inequality and GBV, of affected communities.

In the case of the LHWP 1, when land redistribution occurred, women were extremely vulnerable to GBV, not only physical but also economic violence. In Lesotho, where the legal system precludes women from holding land titles, families who had received some limited minimal compensation for resettlement often excluded women and female-headed households.

This problem is not unique to Phase 1 of the project; even under Phase 2, women continue to face the same challenges.

Manako Lethari of Tloha-Re-Bue, Mokhotlong, is an example of the majority of women affected by the Polihali Dam. Like them, she has been excluded from compensation in favour of her estranged husband who was deemed as the head of the household by the LHDA. Her complaints and pleas for assistance have fallen on deaf ears.

Lethari continues to live in abject poverty with her 36-year-old disabled daughter. Her dilapidated wheelchair occupies the side of the small traditional rondavel which they call their home. It has weeds growing out of the thatch roofing that is already in a desperate state of disrepair. It is a miracle that it has not yet collapsed with the heavy rains and strong winds the country has recently experienced.  

It is high time that infrastructure development projects such as LHWP 2 – which include support from development finance institutions mandated to promote inclusive, sustainable development – empower and not disempower women.

All stakeholders involved in LHWP 2 should commit to making every effort to learn from the mistakes made in the first phase of LHWP. At the very least, LHWP 2 should convene effective and timely community consultations, provide basic services such as clean water, and ensure adequate and fair compensation to all affected communities – especially women who have in the past been left behind.

This would be a real way in which South Africa, Lesotho and all stakeholders involved in LHWP 2 can honour Human Rights Month. The 2023 theme for Human Rights Month in South Africa is, “#LeaveNoOneBehind – walk for your rights”.

Now is the time to take concrete action towards meaningful engagement with affected communities in Lesotho and move forward, not backward, on the UN Sustainable Development GoalsDM

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The Justice Gap, Innovation & Technology for Gender Equality

The Justice Gap, Innovation & Technology for Gender Equality

In line with this year’s theme for International Women’s Rights Day, the SLC recognizes the rights of women being affected by large development projects.

Despite the potential benefits of large-scale hydro projects, these projects inevitably have a considerable impact on women and their ability to support their families. In addition to challenges that are presented by patriarchy and cultural stereotypes that perpetuate gender inequality, women’s ability to obtain legal services and obtain access to justice and redress for losses they incur as a result of the projects remains a big challenge. Access to the internet, mobile phones, and stable connectivity constitute a great opportunity for women and organizations working towards supporting them to close the gender justice gap. With mobile devices and access to the internet, communities would be able to gather on-the-ground real-time data including recording the key resources in their areas and specific impact activities that would provide evidence that could support they are seeking formal justice in court.

In Lesotho, especially in the rural highlands where most communities affected by such projects are located, there is no access to electricity as a basic condition to even use a mobile device. In addition, very few people have mobile devices as the costs of these devices and data are restrictive and out of reach for many communities. This requires major and swift changes at the government policy level; in the first instance, Lesotho Highlands Water Project (LHWP) and Lesotho-Botswana Water Transfer Scheme (L-BWT) and other such projects in the country should provide communities with electricity. Connectivity is also a major issue within these areas even for those people that do have access to the internet. Action must be taken to ensure connectivity and improved network access. This will require partnerships and collaboration with all relevant stakeholders, but it is also mostly an issue of political will.

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Relocation of Graves: A Cultural Dilemma for Basotho Community

Mr Samuel Molomo expressed concerns over the issue of relocation of graves. He questioned this process from cultural view point. He also considers it very traumatising to families and entire community. When the process is carried-out, the project should be sensitive to traditional practises and customs of Basotho where reinterment ceremonies are concerned.

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