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›Björn Hoops, LLM›Groningen Centre for Law and Governance›Washington, D.C., 24 March 2014

Popular Participation in Expropriation Procedures

A Comparative Law and Governance Study

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StructureI. IntroductionII. Voluntary Guidelines on Tenure GovernanceIII.Participation in Expropriation ProceduresIV. Empowerment of the people to participateV. Provision of informationVI. Access to the procedureVII. Form of participationVIII. Concluding remarks

I. Introduction› Expropriation of land

› Popular participation in expropriation procedures Administrative procedure Administrative expropriation Voluntary Guidelines: Good governance

standards

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II. Voluntary Guidelines on Tenure Governance › Goals: security of tenure, food security;

› Outcome of a bottom-up procedure;

› endorsed by CFS on May 11th, 2012;

› promoted by FAO.

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II. Voluntary Guidelines on Tenure Governance› Addressed to States, NGOs, private and public

sector;› Guidelines 2.1, 2.2 and 2.4: non-binding;› Measures to ensure impact:

Dissemination; Concretisation; Capacity building; Monitoring.

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II. Voluntary Guidelines on Tenure Governance› Monitoring mechanism:

1.Legal analysis of existing regulatory framework;

2. Empirical research into practice.

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III. Participation in Expropriation Procedures › South Africa: Promotion of Administrative Justice Act› Namibia: Common Law

› Guideline 16.2: transparent and participatory;

› Transparency: pre-condition for participation;

› Participation: comments on, and contributions to, the decision of the authority.

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IV. Empowerment of the people to participate Are all people able to participate effectively?

- in general? - in a certain setting?

Guidelines 3B.6 and 3B.3: empowerment!

Namibia: Right to ask for clarifications.

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IV. Empowerment of the people to participate South Africa: empowerment?

- Help the illiterate understand: Cape Killarney Property Investments (Pty) Ltd; - Give the uneducated more time to prepare: Police and Prisons Civil Rights Union and Others; - Enhance accessibility / reduce fears: Regulations on Fair Administrative Procedures;

- Weaknesses in the legal framework…

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V. Provision of information› Guidelines 3B.8 and 16.2 to whom?

… on the procedure: the public;… on the subject-matter: affected persons.

who takes the initiative?

… the competent authority.

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V. Provision of information› South Africa: Art. 3 PAJA / Namibia to whom?

… on the procedure: affected persons;… on the subject-matter: affected persons.

who takes the initiative?

… the competent authority.

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VI. Access to the procedure the public

vaffected persons;

Guideline 16.2Guideline 16.2: persons likely to be affected. Namibia & South Africa (principle): rights materially and adversely affected.

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VII. Form of participation› Guideline 16.2: consultations at all stages;

+ main purpose: gathering of information;

› Guideline 3B.6: + engaging with people and seeking their support;+ responding to their contributions.

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VII. Form of participation› South Africa: consultation mechanisms;

- possible exception: public hearing.

› Namibia: consultation mechanism.

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VIII. Concluding remarks› Good governance standards of participation;

› Monitoring of implementation: continuous challenge

- for lawyers, - for social scientists.› Research opportunities!

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Thank you for your attention