Long-standing plans by the Zimbabwean government to draw water from the Zambezi River to supply drought-prone Matabeleland region risk igniting "hydro-politics" that could end up degenerating into a serious conflict in the sub-region. Diplomats, international lawyers and hydrologists said government could not draw water from the 3 000-kilometre river to Bulawayo without the approval of eight Southern African Development Community (Sadc) countries whose territories lie in the Zambezi basin.

Mining has, arguably, had the most profound impact on South Africa's natural environment of any human activity. While agriculture may have affected a greater area of the land surface, mining has probably caused greater environmental damage in that its impact is often irreversible. That is set to change, with mining being included as a listed activity in the draft EIA regulations that were published for comment at the end of June by the Department of Environmental Affairs and Tourism.

Namibia is drafting three pieces of legislation that will guide the management of wetlands in the country. A recently launched booklet, 'Wetlands of Namibia', says the three laws will be: the Water Resources Management Bill, Environmental Management Bill and the Parks and Wildlife Management Bill. Lenka Thamae, the Manager for the World Conservation Union SADC Wetlands Projects based at WCU regional office in Harare, has urged Namibia to preserve its wetlands so that they can benefit future generations.

This report from the New Economics Foundation argues that a continuing reliance on fossil fuels will perpetuate poverty and could drive a huge 'reversal of human progress.' It stipulates that increased investment in renewable energy could save millions of lives and avert an impending crisis over global energy supplies, and that even a relatively small shift in investment in the energy sector in percentage terms could have hugely beneficial consequences for people's health and economic wellbeing. The report also argues against the current subsidies for coal, oil and gas, which it estimates amount to at least US$235 billion each year.

With oil prices soaring to record highs and new oilfields churning out more "black gold", frustration and resentment among Angolans is reportedly growing as they fail to benefit from their natural resources. The government pencilled in an earnings figure of around US $23 per barrel in its 2004 budget, but with prices now about double that, expectations of a government windfall are rising.

This Newsletter seeks to give an overview of current land reform issues in the Horn, East and Central Africa. 'Eastern Africa' here covers Burundi, Eastern DRC, Eritrea, Ethiopia, Kenya, Rwanda, Somalia, Sudan, Tanzania and Uganda. This issue is the second edition of the Independent Land Newsletter; the earlier one centred on Southern Africa, was circulated in June 2004. Compilation of this issue has come from voluntary contributions from land experts mainly based in the respective countries.

To help speed up the process of land allocation for over 300 000 registered landless citizens, the Namibian Government has to raise enough funds for the process to gain momentum. This was said by Lands, Resettlement and Rehabilitation Minister Hifikepunye Pohamba when he unveiled the Provisional Valuation Roll in Oshakati.

Civil society organisations, including Earthlife Africa, Environmental Justice Networking Forum and the Anti-Privatisation Forum demonstrated last week on the first day of the Johannesburg Plus Two Summit. Richard Worthington of Earthlife Africa said the protest was to encourage government to set targets for renewable energy and access to energy.

In 1986, The Lesotho Highlands Water Project (LHWP) was set up between the governments of Lesotho and South Africa as a multi-billion rand infrastructure project designed to control the flow of the Senqu/Orange river and in doing so provide water for the people of Gauteng province, and electricity and money for the people of Lesotho.

Corruption concerns first surfaced in 1993 when a civil government was elected in Lesotho. The government commissioned an audit of both of the parastatal bodies which shared responsibility for the project. The audit revealed obvious and substantial administrative irregularities within the Lesotho Highlands Development Authority (LHDA). After an audit of its chief executive officer, Masupha Ephraim Sole, Sole was then subjected to a disciplinary enquiry, and subsequently he was dismissed.

The investigations had revealed that Sole was clearly living far beyond his means: his housing, cars, holiday arrangements, and instances of nepotism were the obvious indicators. Civil proceedings were instituted to recoup the funds which had been misappropriated by Sole. Civil proceedings began in 1996 and produced evidence of bank accounts that included accounts with the Union Bank of Switzerland.

In August 1997, the Lesotho government applied to the Swiss court for disclosure of a number of Swiss bank accounts, including those belonging to Sole. The application was resisted by a number of the contractors/consultants working on the LHWP, but in early 1999, bank records were handed over. Those which belonged to Sole indicated that he had received millions of maloti for which he offered no explanation. Civil proceedings concluded in October 1999, with judgment given against Sole for the sum of 8.9 million maloti. His appeal, in April 2001, failed.

The bank records obtained from Switzerland indicated that throughout the lifetime of the project, Sole, using ‘middlemen’ or intermediaries, had indirectly received vast sums of money from certain companies and consortia who had been awarded contracts in the project. The patterns, size and timing of the payments gave rise to the notion that bribery had taken place on a massive scale.

The Lesotho government now decided to prosecute Sole as well as many of the corporations and members of consortia who had made secret payments into various Swiss bank accounts, together with the intermediaries who acted as conduits. In December 1999, 19 defendants were charged with bribery. Sole also faced charges of fraud and perjury. Seven of the defendants failed to attend this initial hearing.

By February 2001, the landscape had altered substantially. The court had ruled that the defendants should not be tried together, and a long programme of trials of individual defendants began with that of Masupha Ephraim Sole, on 11th June 2001. He was charged with 16 counts of bribery and two of fraud. During his trial, Sole chose not to give evidence. Evidence which had been gathered for the civil proceedings was now used to show that he had lied repeatedly in denying the existence of any accounts in Zurich. Such accounts existed, and showed a complex pattern of payments which had been made indirectly to him by a very large number of the contractors and consultants at work on the LHWP.

In a comprehensive judgment, finding Sole guilty as charged, Acting Judge Cullinan, a former Chief Justice of Lesotho, observed that the patterns of payments which had emerged during the trial had arisen from transactions which ‘inextricably bound together’ the defendant consultants/contractors, the intermediaries, and Sole himself. Sole was subsequently imprisoned, for eighteen years, reduced on appeal to fifteen.

The trial of Acres International, the Canadian engineering company, now followed. Prior to the criminal proceedings, the World Bank had begun debarment proceedings against Acres and Lahmeyer, a German engineering consulting firm, both of which had received funding from the Bank for the contracts. It is worth noting that the evidence of secret payments into numbered Swiss accounts was not deemed to amount to sufficient grounds for the debarment of the companies at that stage. Acres continued to apply for, and receive, funding for projects from the Bank. However, the Bank reserved its position, saying that it would reopen debarment proceedings if new evidence against Acres were to emerge from the criminal proceedings.

It was alleged that Acres had made payments to Sole through the offices of Zaliswonga Bam, one of three intermediaries originally identified. Bam had died of a heart attack in 1999. Although he was, at the relevant time, working for a housing association in Botswana, Bam and his wife had numbered Swiss bank accounts into which money was put by Acres amongst others and a proportion of which was then placed in one of Sole's many accounts.

Acres had to accept that it had made payments to Bam; the company argued that such payments were customary practice, and had been made pursuant to the ‘representation agreement’ it had made with Bam for services rendered by him to the company in his capacity as its agent or representative. With little evidence to substantiate their case, Acres argued that Bam had performed such services, that payment of such sums of money was commonplace in such circumstances, that nothing adverse should be inferred from the fact that the payments were made in such secrecy, and that in any event, the company had had no idea whatsoever that Bam was making payments to Sole.

The company comprehensively failed to convince the judge of the virtue of these arguments. In a colourful and literary judgment, Judge Lehohla concluded that in the light of the established relationship between Acres and the LHDA, Acres’ personnel were so embedded in the LHDA that there was simply no need for a ‘representative’. Bam's ‘representative’ status with Acres was not public knowledge, neither was it generally known that Bam was on the payroll of other companies working on the LHWP. The judge could see no evidence to show what services Bam performed, nor why he performed them, particularly in the light of the work he was doing at the material time. The judge concluded that the representation agreement was a sham, that Acres had benefited from bribing Sole, to the detriment of its competitors, and that the company was therefore guilty as charged.

Acres was convicted, and sentenced to a fine of CAD3.8M. The company refused to accept the ruling of the court, suggesting that the Judge had not been up to the job, that the trial had been unfair, and that this error would be corrected in the Appeal Court. Acres then lost its appeal. At the time of writing, the company, pleading poverty, has paid a little under half of the fine which was imposed upon it by the Court of Appeal.

After the appeal hearing, debarment proceedings were recommenced by the World Bank and in August 2004 the Sanctions Committee debarred Acres from applying to the Bank for financial support for a period of three years. Shortly before the Sanctions Committee gave its ruling, the company was bought by a larger corporation, Hatch. The implications for Hatch's dealings with the World Bank remain unknown.

A trial against Lahmeyer followed the same pattern as the Acres' proceedings, as did the appeal; and it is anticipated that a similar pattern of events will flow in the debarment proceedings with the World Bank, although one cannot predict the view of the Sanctions Committee. Proceedings have now been instituted against Impregilo, an Italian company, with the first hearing timetabled for October 2004. Evidence is now being gathered against others.

Conclusions

Whilst these trials have earned Lesotho a unique place in legal history, it has been an expensive business. At an international level, many have expressed their admiration for the determination which the Attorney General has shown in proceeding with these difficult cases, and for the tenacity of purpose in the prosecutors, without whose sustained efforts the trials would simply not have been possible. No financial support for these trials has been forthcoming from outside the country. Many institutions and governments promised financial support at the outset of the trials, but none has yet been forthcoming. A conclusion drawn by some in Lesotho is that institutional support for a prosecution may be lacking from a country where the defendant company is registered, and where there may be a corresponding conflict of political interest.

Many of the legal aspects of corruption have now been thoroughly and recently tested in the Lesotho courts. In particular, there is now clear, developed common law jurisprudence on the questions of jurisdiction (where the matters can be tried) and citation (with regards whether a company has a legal personality). In addition, the definition of bribery has been further refined to ensure that equal resonance accrues to the two parts of the offence - netting both the bribee and the briber.

From the perspective of the international community, these trials pose challenges to Parties to the OECD Convention on Combating Bribery about the ways in which corruption is detected and punished in different parts of the world. Canadian lawyers have expressed doubt as to whether Acres would have been prosecuted in Canada. The high moral tone taken throughout by Acres, which has, throughout, been disinclined publicly to express remorse for its actions, might have deterred a decision to prosecute. Lahmeyer could not be prosecuted under the provisions of German criminal law in any event, since corporate offences are dealt with under administrative law only, punishable by means of fines.

With regards the international financial institutions, Judge Steyn gave the clearest indication of the Court's view of their role in his ruling in the Lahmeyer appeal:

‘…that it will revisit its practices and procedures in general, but for present purposes, more particularly the practice of the employment of representatives who can play the obfuscating role played so frequently in this mammoth project. But also, that it will be firm and resolute in enforcing its disciplinary proceedings on any agency, company, individual or institution who participates in the practice of bribing those employed on development projects.’

In terms of the Acres debarment, the company has been debarred for three years. The period of debarment is shorter than it might have been, because the Sanctions Committee took into account the fine which had already been imposed by the Lesotho courts, and the fact that those who had been responsible for the bribery no longer worked for the company. The Bank has conducted its own inquiry into corporate corruption in Lesotho: its procedures are not vulnerable to judicial scrutiny. However, the trials in Lesotho have been subject to such scrutiny at every turn; they have effectively provided the World Bank with the materials used in its debarment proceedings. The decision of the World Bank to debar Acres has been heralded as a clear indication from the Bank that it means business, in excising corruption from its lending practices. Responses to the debarment of Acres have yet to emerge from other IFIs. There can be no doubt that mutual debarment could become an ultimate deterrent to a company considering the bribery of a foreign public official.

* Fiona Darroch is a barrister at law, in practice at Hailsham Chambers, London. Part of her practice is in international environmental and human rights issues, and she has been following and writing on the Lesotho corruption trials for two years.
* A group of lawyers based in Durban and Roma have begun an initiative which will assist people in the region of the Lesotho Highlands Water Project who have been displaced by the project and who are still suffering the ill-effects. For further information please email Nikki Evans at [email][email protected]

* Please send comments to [email protected]

"We, the undersigned, are writing as individuals and members of organizations, many of whom know firsthand the tragic impacts of corporate failures in the water sector from Bolivia to the Philippines and from Argentina to South Africa. The Ghana National CAP of Water, made up of women's organizations, student and youth groups, tenants, residents and community associations, religious groups, trade unions, environmental groups, and human rights groups has united around the goal of ensuring access to water for all Ghanaians by 2008. The National CAP of Water has concluded that the achievement of this goal is being undercut by World Bank and government programs that promote (1) an international market price for water, and (2) private sector contracts to foreign multinational corporations for the management of the Ghanaian water system. We ask that these programs cease and the Ghanaian people be given a chance to develop alternative proposals."

Edward Lahiff, of the Western Cape Programme for Land and Agrarian Studies (PLASS) has called upon the South African Government to be "realistic" when setting targets for placing more commercial farmland in the hands of the rural poor. His comments follow recent research by PLASS which shows that the Government faces a shortfall of R587 million for land reform projects it has already approved.

Zimbabwean police last week arrested six white commercial farmers for allegedly refusing to vacate their farms designated for landless blacks. State media sources said that the farmers in the region of Karoi in western Zimbabwe had defied notices to leave their land and that most had more than one farm each. Farming sources have said that none of the farmers had more than one farm and that some were not even farming as their properties had already been taken.

44 Masai herdsmen charged with invading white-owned ranches in Laikipia were ordered to pay a total of Sh3.5 million as bail this week. Their relatives and lawyers have claimed that the ruling is designed to harass the Masai and described the ruling as a prohibitive bail condition, claiming that the majority of the accused are simply unable to over the Sh80,000 ($1,000) required from each of them. The magistrate denied receiving any advice from the government and said that he was discharging his duties independently.

A group of seven NGOs, lobbying under the motto, Publish What You Pay, has urged the government to stop including confidential clauses in deals with oil firms and publicly commit to improving transparency. The move follows a recent International Monetary Fund mission to the country and its recommendations that more audits of state oil firms and other companies in the sector should be carried out to ensure that the revenues are being properly used. The country is expected to be sub-Saharan Africa's fourth biggest oil producer this year.

Minister of State William Ole Ntimama this week broke ranks with the government and threw his weight behind the Masai's campaign to reclaim ancestral land. "The Masai land was annexed under a state of war by the colonial government," the minister said. Calling for dialogue among the government, white farmers and the Masai to begin as soon as possible, he also appealed to the ranchers to "allow Masai to graze in some of the land. People are moving in desperation, there is no water or grass outside the electric fences," he said.

These are the two messages uniting civil society in a demonstration on 1st September, to coincide with second anniversary celebrations of the World Summit on Sustainable Development (WSSD+2). The demonstration will call on government to play a stronger role in increasing access to and affordability of energy services, coupled with development of local industries in renewable energy technologies. "Two years after the WSSD, millions of South African households are still without access to affordable and safe energy, " says Richard Worthington, branch co-ordinator of Earthlife Africa Johannesburg, which is organising the demonstration.

Existing technologies could stop the escalation of global warming for 50 years, and work on implementing them can begin immediately, according to an analysis by Princeton University scientists. The scientists identified 15 technologies - from wind, solar, and nuclear energy to conservation techniques - that are ripe for large-scale use and showed that each could solve a significant portion of the problem.

The beleaguered rain forests of Madagascar are home to thousands of plants found nowhere else- and perhaps new lifesaving drugs. Could the search for medicinal plants help keep the forests of this African island nation intact? A team of scientists hope the answer is yes. "Is it possible to add to the human economy without depleting the biodiversity riches? We are trying our best to do this," said a scientist. Click on the link to read the story on the website of National Geographic.

Even by conservative estimates, less than a quarter of Ghana's pre-colonial forest remains. Loggers and politicians caused most deforestation, though they like to shift the blame to farmers. But the fact is that throughout the Twentieth Century farmers have had little control over the trees on their land.

Tanzanian wildlife authorities have expressed fears for the survival of thousands of hippos due to acute shortage of water facing the country's southern western Katavi National Park. "We are concerned with acute shortage of water flowing into the park. If the river dries up, thousands of hippopotamus might die," the park's chief warden Stephen Quoli told AFP on Sunday.