Doing Development in Afghanistan

Professor Patrick McAuslan, from Birkbeck’s School of Law, wrote this blog from Kabul, Afghanistan.

I have been working in Afghanistan, on and off, since the summer of 2005. I arrived in Kabul just before 7/7 and remember ringing up home in England to find out if everyone was safe; a rather odd reversal of roles.

On my present mission I am working on three separate strands: a compensation guide for ministry officials involved in land acquisition; undertaking a Regulatory Impact Assessment on the Land Management Law for the Afghanistan Land Authority; and working on the Resettlement Policy Framework for the Ministry of Mines. Quite a lot to get through in five days.

Land acquisition law

In 2007 the World Bank asked me to prepare a report on land acquisition law in Afghanistan. The Taliban had enacted a land acquisition law in 2000, which had been replaced by a law of 2005 that in some respects was not as good as the Taliban law. I produced a report which was the basis of a very interesting workshop, late in 2007.

A new land acquisition law was developed by the government in 2008. It did not appear that much attention had been paid to my report, which had been enthusiastically endorsed by the Minister of Urban Development. But the drafting of the law was the responsibility of the Ministry of Agriculture, Irrigation and Livestock and I doubt whether my report had been sent to them. I commented on the 2008 draft of the law at the request of the World Bank. Since then the law has been in a continuous process of revision.

The World Bank and other international financial institutions, e.g. the Asian Development Bank, have very strict provisions about fair procedures in connection with land acquisition and resettlement of those whose land has been taken for some public purpose. At the World Bank it’s known as Operating Procedure (OP) 4.12. This sets out the steps that have to be taken in any process of land acquisition and resettlement. A key element of this is that any Ministry that is going to be in receipt of Bank funds for a project that might involve land acquisition has to produce a Resettlement Action Plan (RAP), which follows OP 4.12 but belongs to the Ministry and thereafter, if the project gets under way, the RAP has to be complied with. In some cases a Ministry might be required to prepare a Resettlement Policy Framework (RPF) – a larger variant of an RAP.

I was asked by the World Bank, in 2010, to prepare an RPF for the Ministry of Energy and Water (MEW). The Bank was going to provide a very large amount of money – over $140 million – to the Ministry for rehabilitation of small local dams and other local water facilities in rural areas, to support local agricultural development. The project was going to be demand-driven; villages would apply for funds to repair and improve their dams etc. Because the project was demand driven, it was not possible to know in advance what land would need to be acquired for the work. Hence the requirement for a RFP, which sets out the policies for resettlement and compensation and the processes which will have to be used in all specific cases of acquisition and resettlement. Then, when a specific case comes up an RAP is put together on the basis of the RFP, but that RAP can be signed off by the World Bank in Kabul, rather than in Washington.

So I put together a RPF for the MEW, which was approved and sent forward to the Afghanistan Land Authority (ARAZI), which signed off on it. It went to the relevant committee or board of the Bank in Washington, which approved it and the project was in business.

I went to Kabul in March 2012 to train officials in the MEW in the RPF. The officials were all very keen and committed. Discussions were very focused and whether or not they learned anything from me, I certainly learned a lot from them. There was considerable discussion about problem cases on compensation and how they dealt with them.

Compensation guide

That session set me thinking. If the experiences of these officials were being replicated in other ministries, and there was a complete lack of information on how to handle problem cases on compensation, would there not be a case for the compilation of a guide book on compensation based on cases collected from different ministries and then collated and written up to provide some common standards for officials working in the field. I put my idea to my link person at the Bank who thought it made sense. It was agreed and I was to be the international consultant to the mini project, but the bulk of the work would be done by two local consultant counterparts who would collate and write up the cases. I was told by my link person that a very senior official from the Ministry of Public Works had stated that it was one of the most important projects the Bank and the government were to be involved in.

Land Management Law

In another mission in 2011, I had been asked by the Bank to review the Land Management Law 2008, which was in the process of being revised. I wrote a fairly critical report on it and so became part of the process of revising the law. I suggested that any revised law should have to undergo a regulatory impact assessment (RIA) to ensure that it was practicable and cost-effective.

I have since been asked to conduct the RIA, although the current situation is somewhat complicated. ARAZI had asked for a social impact assessment (SIA) to be done on the latest version of the Land Management Law. This was done by a major international land policy expert, who has done a great deal of work in Afghanistan, out in the rural areas and has published an enormous amount on the state of land affairs in the country. Her SIA was extremely good but she pulled no punches. Judged against the principles of the National Land Policy (NLP) approved by Cabinet in 2007, the law was deficient in many respects. We were worried. How would ARAZI take this strong criticism? We met with the Director and one other official on 16 July. We were very pleasantly surprised. The Director bought into the SIA and accepted that the law was deficient as not following the NLP. He agreed to continue the revisions with a view to bringing the law into line as far as possible with the NLP. We were left a bit unclear as to the extent of the changes to be made or how they are to be made; in the Law or through decrees (subsidiary legislation) after the Law is enacted (or as the Constitution permits, by Presidential Decree totally bye-passing Parliament). Time will tell on that and before that occurs, the results of a national consultative process on the new draft of the Law will have to be fed into the process.

So where does that leave an RIA? I am a bit reluctant to start on an RIA until the new draft of the Law is a bit clearer. I will urge that we should ‘hasten slowly’ on this.

The Ministry of Mines

The Ministry of Mines wanted to move forward on various mining projects, including the largest open-cast copper mining project in the world, and needed an RPF for Bank funding of elements of getting the mine up and running. The Senior Social Adviser to the Ministry of Mines has already produced an RAP for the first mining project of that Ministry. The RAP is a really excellent piece of work and will make my current task of preparing an RPF much easier. It cribbed a bit from my MEW RPF but that is perfectly acceptable. It is very detailed and what comes through very clearly, and she stressed it was a very factual document, is the enormous care and commitment that Afghan officials on the ground were taking to ensure that villagers who have to be moved are consulted every step on the way; are given very generous compensation; and are assisted in their moving. It was a real eye-opener. I have agreed to try and complete the RPF by the end of September, when we will have a workshop in the Ministry to review it.

Staying in Kabul

Security in Kabul is worse now than it was in 2005. Then, I was driven around by an ordinary driver in a Toyota Corolla. Now, I am driven around in a heavily armour-plated World Bank 4×4, by a driver who has been specially trained to get one out of tight spots in heavy traffic in Kabul. Habitat long ago left its offices in the centre of the city. Every day, there are security warnings about roads that cannot be driven down. Don’t be under any illusions that we are winning.  Over the last 170 odd years, foreign invaders of Afghanistan have, on balance, not done very well and this foreign invasion is clearly going the same way. That’s all for now.


3 thoughts on “Doing Development in Afghanistan

  1. Why does, ‘170 odd years..foreign invaders.. not done very clearly going the same way’ , contradict patricks nice prose? As he is by his own prose a defined invader.

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