12 El Saleh Ayoub St., Zamalek, Cairo, Egypt Tel: Fax:

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1 Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized SUBMITTED TO: PORT CITIES DEVELOPMENT PROGRAM Port Cities Development Program () 12 El Saleh Ayoub St., Zamalek, Cairo, Egypt Tel: Fax: genena@ecoconserv.com URL: JET for Engineering and Trading Riyad (Hayil) Street, Al-Ghail Building 1st Floor, Suite no. 1, Sana a, Republic of Yemen, P.O. Box 2379 Tel.: Fax: jetyemen@yahoo.com URL: RESETTLEMENT POLICY FRAMEWORK (RPF) Final February 2010

2 TABLE OF CONTENTS TABLE OF CONTENTS...1 ABBREVIATIONS AND ACRONYMS...5 GLOSSARY...6 EXECUTIVE SUMMARY...8 STRUCTURE OF THIS RPF...18 CHAPTER ONE: INTRODUCTION AND PROJECT INFORMATION Purpose, Composition and Scope of the Resettlement Policy Framework (RPF) Key Elements that the RPF should include Scope of the RPF The Second Port Cities Development Program () Background Objectives Summary of the Current Situation Proposed Sub-projects Under the Potential Environmental and Social Impacts Components and Involuntary Resettlement Mitigating the Negative Impacts on Local Groups Livelihoods...32 CHAPTER TWO: YEMENI LEGAL AND INSTITUTIONAL FRAMEWORK Main National Legislations that Regulate Land Declaration Land Ownership within the Yemeni Legislations Framework Privately- Owned Land State-Owned or Government Land Communal Land Endowment/ Waqf Land Agriculture Land Land for Neighborhood Rights Laws Governing Squatters Land Acquisition: Key Issues and Procedures Institutional Arrangements General Authority for Land Survey and Urban Planning (GALSUP) The Ministry of Public Works and Highways (MoPWH) The Ministry of Finance (MoF) Local Councils Additional Mechanisms Main Challenges Related to Land Ownership and Institutional Capacities...45 CHAPTER THREE: WORLD BANK SAFEGUARD POLICIES ON INVOLUNTARY RESETTLEMENT (OP 4.12) Policy Principles and Objectives Resettlement Instruments

3 3.3 Key Definitions Taken from OP Project Affected Persons (PAPs) Vulnerable Groups Eligibility Criteria Compensation and Methods for Assets Valuation Assets Valuation Asset Valuation Method Compensation Introduction to RAP/ARP RAP/ARP and the Project Cycle PRA/ARP during Project Identification RAP/ARP during Project Appraisal RAP/ARP during Project Implementation RAP/ARP during Monitoring and Evaluation (M&E) Sources of Funding for the RPF/ARP Institutional Responsibilities under the RAP/ARP The World Bank The National Coordination Unit (NCU) Local Authorities (Local Councils) Non Governmental Organizations (NGOs) External Consultant (s)...65 CHAPTER FOUR: GAPS BETWEEN YEMENI LEGISLATION AND THE WORLD BANK OP Discrepancies between Yemeni Laws and OP Calculation and Timing of Compensation Definition of Affected Persons (PAPs) Public Participation, Consultation Grievance Mechanisms Vulnerable Groups Resettlement Assistance Rights of Squatters Capacity Building Needs...68 REFERENCES...72 Annexes ANNEX 1 : TYPES OF ACQUISITION AND THE REGULATING ARTICLES OF LAW 1 OF 1995 ON PUBLIC EMINENT DOMAIN LAW ANNEX 2: ENTITLEMENT MATRIX FOR AFFECTED PERSONS...77 List of Tables Table 1.1: The Main Positive Environmental and Social Impacts Predicted from the Table 1.2: Potential Negative Impacts and the Mitigation Measures of the Municipal Market Rehabilitation in Aden 3

4 Table 1.3: Potential Negative Impacts and the Mitigation Measures of RIHFP, Hodeidah Table 1.4: Potential Negative Impacts and the Mitigation Measures of MIAIP, Mukalla Table 1.5: Potential Negative Impacts and the Mitigation Measures of TJIP, Mukalla Table 1.6: Summary of the Potentially Affected Group in Mukalla Table 3.1: Type of Losses Covered by OP 4.12 Table 3.2: Criteria for Eligibility (OP 4.12) Table 3.3: Replacement Cost for Tangible Assets List of Figures Figure 2.1: The Categorization of the Main Types of Land under Yemeni Law Figure 2.2: Types of Land Acquisition Procedures and the Regulating Laws Figure 3.1: Main Approaches for the Grievance Redress Figure 3.2: RAP/ARP along the Project Cycle Figure 4.1: PAPs Consultation and Participation in the RAP/ARP along the Project Cycle List of Boxes Box 3.1: Design Criteria for RAP Box 3.2: Minimum Elements to be included in ARP Box 3.3: The Socio-economic Survey Objectives Box 3.4: Guidelines for the Monitoring Indicators 4

5 ABBREVIATION AND ACRONYMS ARP CAS DPPR EC ESMP GALSUP GOY HFP IR LRC M&E MIA MIAIP MoF MoPWH NCU NGOs OP OPWR PAD PAP PRA RAP RIHFP TJIP WTP Abbreviated Resettlement Plan Country Assistance Strategy Socio-Economic Development Plan for Poverty Reduction Estimation Committee Environmental and Social Management Plan General Authority for Land Survey and Urban Planning Government of Yemen Hodeidah Fishing Port Involuntary Resettlement Local Resettlement Committee Monitoring and Evaluation Mukalla International Airport Mukalla International Airport Improvement Project The Ministry of Finance The Ministry of Public Works and Highways National Coordination Unit Non Governmental Organizations Operation Policy Office of Public Works and Roads Project Appraisal Document Project Affected Person The Second Port Cities Development Program Participatory Rapid Appraisals Resettlement Action Plan The Rehabilitation and Improvement of Hodeidah Fishing Port Project Traffic Junctions Improvement Project Willingness to Pay 5

6 GLOSSARY Abbreviated Resettlement Plan Affected Persons Compensation Cut-off Date Involuntary Involuntary Resettlement (IR) Land Acquisition Monitoring Project Affected Persons Establish a baseline through the census of PAPs which will comprise socio-economic data, the inventory of assets lost, and the compensation and resettlement benefits awarded to the PAPs. All persons who, as result of work carried out or to be carried out under the project, would incur involuntary loss, temporarily or permanently, of land, shelter, productive assets or access to productive assets, or of income or means of livelihood and, as a consequence, would have their living standards or production levels adversely affected. Payment in-cash or in-kind to replace losses of land, housing income, and other assets caused by the project. The date of the census prior to which, the occupation or use of the project area, qualifies residents or users of the project area as affected persons. Actions that may be taken without the displaced person s informed consent or power of choice. The unavoidable displacement of people and/or impact on their livelihood, assets and common property resulting from development projects that create the need for rebuilding their livelihood, sources of income and asset bases. The process whereby a person is compelled by a public agency to alienate all or part of the land s/he owns or possesses, to the ownership and possession of that agency, for a public purpose, in return for fair compensation. The process of repeated observations and measurements of environmental and social quality parameters to assess and enable changes over a period of time. Includes any people, households, firms or private institutions who, on account of changes that result from the project will have their (i) standard of living adversely affected, (ii) right, title, or interest in any house, land (including residential, commercial, agricultural, forest, and/or grazing land), water resources, or any other moveable or fixed assets acquired, possessed, restricted, or otherwise adversely affected, in full or in part, permanently ore temporarily; and/or (iii) business, occupation, place of work or residence, or habitat adversely affected, with or without displacement. 6

7 Public Involvement Rehabilitation/ Resettlement Resettlement Action Plan (RAP) Social Impact Stakeholders Vulnerable Groups The dialogue encompassing consultation and communication between a project proponent and the public. It includes dissemination, solicitation and presentation of information. A term often used to describe the process of reestablishing lifestyles and livelihoods following resettlement. The term is also used to describe construction works that bring a deteriorated structure back to its original conditions. A time-bound action plan with a budget, setting out resettlement strategy, objectives, options, entitlements, actions, approvals, responsibilities, monitoring and evaluation. An effect (both positive and negative) on a social issue resulting from development projects. Those who have an interest in project development and who will be involved in the consultative process, and includes any individual or group affected by, or that believes it is affected by the project; and any individual or group that can plan a significant role in shaping or affecting the project, either positively or negatively, including the host community/population. Distinct groups of people who might suffer disproportionately from resettlement effects, including the poor, landless and semi-landless, female-headed, disabled and elderly households without means of support and those from minority groups. 7

8 EXECUTIVE SUMMARY Background on Resettlement Policy Framework It is a widely accepted fact that if left unmitigated, involuntary resettlement (IR) as a result of development projects may produce various risks. A Resettlement Policy Framework (RPF) is prepared in accordance with WB OP 4.12 and the Yemeni laws pertaining to resettlement when the extent and location of resettlement cannot be known at the appraisal phase. RPF should be employed should the issue of resettlement arise. RPF purpose is to "establish resettlement objectives, principles, organizational arrangements, overall design of the resettlement program, and funding mechanisms for any resettlement operation that may be necessary during the project preparation and implementation phases". When the exact extent of land acquisition becomes known during the implementation phase, site specific Resettlement Action Plans (RAPs) or Abbreviated Resettlement Plans (ARPs) will be prepared, depending on the scale and severity of impacts. Those could not be prepared during project appraisal because the exact impact of the project different components/activities is difficult to be determined or predicted. National Coordination Unit (NCU) should submit an RPF that includes some key elements in consistence with the WB prior to appraisal. The RPF functions as guidelines for the preparation of RAP/ARP in case IR is triggered. The Second Port Cities Development Program () () to be financed by the World Bank (WB) in the port cities of Aden, Hodeidah and Mukalla between 2010 and 2015 with the objective to improve conditions of select infrastructure that supports the urban economy of the three strategic port cities of Yemen. The following are key highlights on the situation within the three cities: In Aden: The city has 5 municipal markets that serve the basic staple shopping needs for over 70 percent of the city s population. Congestion inside the markets makes them unhygienic and undermines major potentials for them as economic centers. In Hodeidah: Fishing is a major economic component in Hodeidah and the whole country. The only fishing port in Hodeidah city generates numerous job opportunities for various fishing related activities. However, the port is severely congested, struggling to handle a demand that is 600 to 700 percent more than the design capacity. This results in limited productivity of the labor force in the fisheries cluster. In Mukalla: Mukalla is the gateway to the valley that holds cultural World Heritage sites. Current flights demand has already outstripped the existing capacity of the passenger terminal in Rayyan airport. Passengers experience considerable delays and this is expected to increase in the future. On the other hand, traffic at major city intersections, linked to arteries that discharge traffic from the airport and the port into the city, are congested. This is largely because of ill-designed traffic patterns, uncontrolled parking, and the lack of pedestrian crossings 8

9 The different consultation activities with various stakeholders of relevance to activities showed that the current situation in the three cities, namely Aden markets, Hodeidah fishing port, Rayyan Airport and Mukalla traffic intersection result in several social, economic and environmental complications that the proposed subprojects will address. The Proposed Sub-projects under the include: Designs for and rehabilitation of four markets in Aden The Rehabilitation and Improvement of Hodeidah Fishing Port project (RIHFP) Mukalla International Airport Improvement Project (MIAIP) Fifteen Traffic Junctions Improvement Projects (TJIP) It is predicted that the implementation of the will result in significant positive outcomes including the provision of inclusive and sustainable rehabilitation investments that benefit the societies and urban economies of the three port cities through beneficiaryidentified needs and community mobilization; basic services to poor groups; transparency of capital investments; open communication; and the potential for scaling up these outcomes. The predicted impacts and mitigation measures for the potential negative impacts have been carefully studies through Environmental and Social Impacts Assessments (ESIAs) that has been prepared, shared and reviewed by various stakeholders including the potential beneficiaries and disadvantaged groups. Components and Involuntary Resettlement The initial screening of the potential activities under the showed that no physical loss of assets is predicted to occur under any of the sub-projects. It is, however, predicted that temporary disturbance for the livelihoods of local community groups might occur during the construction phase of the sub-projects due to the activities associated with physical works and need for temporary land acquisition in the three cities. Some longer term impacts could also be encountered by certain community groups as an indirect consequence for the project intervention. However, these impacts could not be classified as involuntary resettlement. The significance of these impacts is expected to be reduced to a minor or negligible with adherence to the proposed mitigation measures described in the Environmental and Social Management Plan (ESMP). These potential temporary negative impacts in the three cities could be summarized in the following: Temporary restriction from access to certain parts within the workplace in the four targeted Aden markets, in Hodeidah Fishing market and to Mukalla local shops and kiosks located within the traffic intersections. This could be due to machinery occupation in these parts or due to health and safety measures. This is expected to cause interruption to the original beneficiaries from the site (sellers, fishermen and other port users) In Hodeidah, temporary disturbance might also be experienced by those associated with existing shops inside the port hall that will be relocated to other places/shops. In Mukalla, traffic intersections, preventing on-street parking in certain places, may result in a reduction of customer influx for local shops. 9

10 Mitigating the various impacts mentioned is perceived to be manageable through various mitigation measures in the ESMP that focus mainly on phasing work, engage local communities including potential PAPs in the planning for the various activities of the project and carrying out community surveys and awareness raising activities through the existing active NGOs in the cities. The mitigation measures involve procedures that require capital investment and this has been considered in the ESMP budget as well as contractual procedures and conditions. The NCU is proposed to play a major role in supervising the implementation of the mitigation measure. Main National Legislation that Regulates Land Declaration Yemeni Legislation includes several provisions that regulate the process of declaring land plots for public interest, the provisions for expropriation and compensation; and the definition of rights of owners and use of communal property. The key subjects related to land property and land acquisition in the main pieces of Yemeni legislations that deal with land related issues are the Yemini Constitution, Civil Law, Law no. 21 of 1995 concerning State Land and Real Estate, the Republican Decree 170 of 1996, Waqf Law no. 23 of 1992, the Republican Decree 99 of 1996, Law no. 21 of 1995 concerning State Land and Real Estate and Law no. 1 of 1995 concerning the Public Eminent Domain Law. Under Yemeni legislation, land could be classified into certain categories as follows: 1. Privately- Owned Land: This covers all land held in private ownership, urban or rural, which is neither Waqf nor Miri. It is subject to Shari a Law which dictates that the direct descendents of the rightful owner will inherit the land upon the death of the owner, and, only in the case that this is not possible may indirect descendents inherit it. Private land property is governed by Articles 20 and 7 Paragraph (c) of the Constitution and Articles 1154 and 1159 of the Civil Law. The practical application of private land management issues confronts many challenges, mainly the lack of full inventory of privately-owned land, growing confusion over communal land and the privately-owned land and trend toward increasing private appropriation of communal land. 2. State-Owned or Government Land: This is defined as whatever the State or public bodies actually own, or own in accordance with the law. Such property shall not be disposed of or confiscated. Individuals shall not be entitled to the ownership of such property as long as it remains public. Any other form of property shall be considered private whether owned by the State or public bodies or owned by an individuals. State-owned land is discussed in Article 18 and 19 of the Constitution and Articles of the Civil Law and Law no. 21 of Communal Land: This is primarily used for grazing and firewood collection. Customary law entrusts sheikhs with the management of communal land but there is a trend towards increasing private appropriation by traditional natural leaders in villages (sheikhs). Communal land is regulated by the Republican Decree no. 170 of 1996 concerning Law no. 21 of 1995 of Lands and Real Estate and Article 2 of the Republican Decree concerning Law No. 21 of 1995, in addition to Articles 43, 44 and 10

11 46 of Law no. 21 of 1995 and Articles of the Republican Decree no. 170 of There is lack of clarity in defining communal land and private land. There is also a trend towards increasing private appropriation of communal land. 4. Endowment/ Waqf Land: This essentially means the arrest (freezing) of assets and the disbursement of benefits (profits, rents, etc.) in seeking God s favor. Waqf land is regulated by Article 22 of the Constitution and Waqf Law no. 23 of 1992 and Estates Republic Decree no. 99 of Agriculture Land: This is defined as actual cultivated lands or lands that are prepared for cultivation. The legislations that regulate the management of agriculture land are Article 7 of the Constitution and Articles 527, 756, 1159, 761, 765 and 770 of the Civil Law. 6. Land for Neighborhood Rights: An owner must not exercise his rights excessively to the extent of causing harm to the property of his neighbor, nor should the neighbor blame his neighbor for any unavoidable harm that may suffer as a result of being neighbors. This is regulated by Articles 1161, 1163 and 1164 of the Civil Law. 7. Laws Governing Squatters: Squatters are those who undertake controlling any Lands or Estates which are owned by the State. Law 21 of 1995 on Land and Real Estate is the most important law that deals with squatters and their rights, particularly Articles 58 and 59. Land acquisition is regulated by the Public Eminent Domain Law no. 1 of 1995 which aims at locating and identifying State Lands and Estates and establishing plans that identify such lands, protect and maintain them against any kind of aggression. According to Article 1 of this law, ministries, authorities and general intuitions may carry out acquisitions for the public interest when justified by necessity, in return for fair compensation. Article 2 of the same law states the definition of Projects of Public Interest. The main institutions responsible for land-related issues are the General Authority for Land Survey and Urban Planning (GALSUP) through the Land Department, Planning Department, Notary Public Department and the Control and Inspection Department. The Ministry of Public Works and Highways (MoPWH), the Ministry of Finance (MoF) as well as the Local Councils also play an institutional role in regulating land issues. Moreover, under Articles 18 to 20 of the Law of State Lands Real Estates, the Minister of Justice establishes a permanent or temporary EC in every governorate, or for each individual case that comprises a judge, who takes the role of chairman, an engineer, a representative of the expropriating authority, and the owner(s) of the expropriated real estate or their representative. The EC must consider the various pieces of legislation related to land acquisition and rights of squatters on public land to receive compensation for involuntary settlement. There are several challenges related to land ownership and institutional capacities in Yemen that could be summarized in the following: Land ownership issues are complex in Yemen, and are beyond the scope of a project to resolve. 11

12 The practical application of the law confronts many challenges including the growing confusion over communal land and privately-owned land and the trend of increasing private appropriation of communal land. There is little public confidence in the Land Registry, mainly in the rural areas. The overlapping responsibilities and the bureaucratic procedures of the various concerned institutions lead to delayed responses to the affected persons. Law enforcement holds many challenges and the judicial system also exhibits some weaknesses. The RPF should take the social context into account and adapt it to local conditions. The established local mechanisms in the form of LRCs in certain governorates are specifically tailored to deal with the resettlement problems, particularly for people with no formal legal rights. World Bank Safeguard Policies on Involuntary Resettlement (OP 4.12) Involuntary Resettlement (IR) resulting from development projects will, if unmitigated, give rise to difficult economic, social, and environmental risks that may lead to a variety of unacceptable impacts including dismantling of production systems, impoverishment people, relocation of displaced persons to environments that do not suit their skills, weakening of community institutions and social networks, dispersion of extended families and kin groups and loss of cultural identity. However, well-designed resettlement programs may represent good development opportunities. WB OP 4.12 is a road map for the identification, preparation, and implementation of Bank-funded programs with a focus on minimizing negative social and economic impacts on individuals and communities. The overall objectives of OP 4.12 avoid IR where feasible by exploring alternatives. If unavoidable, resettlement activities should be conceived and executed as sustainable development programs where displaced persons should be meaningfully considered. Resettlement programs should work to improve the livelihoods of the PAPs. The policy covers the direct economic and social impacts that result from Bank-assisted projects and are caused by the involuntary taking of land resulting in relocation or loss of shelter, loss of or access to productive assets, or loss of sources of income or means of livelihood, whether or not the affected persons must move to another location; or, the involuntary restriction of access to legally designated parks and protected areas resulting in adverse impacts on the livelihoods of the displaced persons. A project triggering OP 4.12 involves three main resettlement instruments as follows: A Resettlement Policy Framework (RPF), as previously mentioned, is prepared when the extent and location of resettlement and/or land acquisition cannot be known at appraisal. RPF provides the guidelines for the steps in preparing RAP/ARP, in case IR is triggered. The Resettlement Action Plan (RAP) 12

13 or the Abbreviated Resettlement Plan (ARP), depending upon the scale of impacts, is prepared when the details of the project are known at appraisal. OP 4.12 of the WB includes resettlement jargon that the RPF also seeks to clarify. The following gives an idea about the main jargon and their definitions: Project Affected Persons (PAPs): Individuals who may be subjected to adverse economic, social, or cultural impacts by the WB s assisted sub-projects. According to OP 4.12 of the WB, these impacts may constitute anything from the loss of physical assets such as land, farm land, crops, commercial properties, homes, personal belongings, sources of income, and cultural / historical / religious sites, to non-physical assets such as social capital and cultural networks and activities. Adverse impacts also include the loss of access to the physical and non-physical assets and the involuntary restriction of access to legally designated parks and protected areas. These types of impacts are very unlikely to affect people and assets under the and resettlement actions are very unlikely to be triggered. The may incur the risk of temporary disturbance of economic activities and the ESMP has presented mitigation measures to adequately deal with this risk. Vulnerable Groups: Although not explicitly referred to in the Yemeni legislation; under OP 4.12 there is clear emphasis on the need to give special attention to the rights of vulnerable groups who are often at higher risk of impoverishment. Vulnerable groups could include those living below the poverty line, the landless, elderly, women and children, indigenous peoples, and ethnic minorities; and, PAPs who may not be protected through national land compensation legislation. Through the various resettlement tools, vulnerable groups are defined and their concerns are explored. Within the context of, the interests of small scale fishermen, informal street sellers and vendors should be seriously considered. The developed ESMP emphasized consulting and engaging with these groups. Eligibility Criteria: All PAPs who suffer a complete or partial loss of assets or access to assets shall be eligible for some kind of assistance, according to their legal rights to the land, if it can be proven that they occupied the land before the claim cut-off date. The Bank OP 4.12 specifically proposes three general categories for eligibility, namely Individuals who have formal legal rights to land, Individuals who do not have formal legal rights to land, but have a claim to such land or assets and Individuals who have no recognizable legal right or claim to the land they are occupying. The two first categories should be compensated at full replacement cost. They should be also provided assistance during relocation. They also should benefit from assistance to restore their standards of living to replacement level. The third category should be provided with resettlement Assets Valuation: This should be carried out by assessing the market value of the assets. Replacement cost is simply calculated as the cost of replacing the lost assets plus any transaction costs associated with bringing the asset to pre-displacement value whether it is agriculture land, urban land, houses or other structures. OP 4.12 clearly spells out the method of assessing the replacement cost of various assets. For intangible loses, like access to employment opportunities or public services, the sub-projects should attempt to establish access to equivalent resources. 13

14 According to Law no. 21 of 1995, EC should be in charge of estimating the value of compensation as previously mentioned. Fair compensation is a constitutional condition for lawful expropriation according to article 1166 of the Civil Code No. 19 / Compensation should be provided to all individuals whose assets or access to assets is severely affected or damaged, as a consequence of land acquisition or any other activities undertaken by the sub-projects. Compensation may come in the form of cash compensation, in-kind compensation, and/or assistance and varies depending on the type of loss, severity of the loss, and eligibility of the APs. All PAPs will be entitled to either monetary compensation at replacement cost, at market value (for tangible assets) or in-kind compensation. The decision as to which type of compensation is used should be jointly agreed upon between the NCU and the PAPs and shall be subject to the availability of replaceable assets. Compensation for losses in communal property shall only be in-kind for the community as a whole. Preparation of RAP/ARP along the Project Cycle RAP/ARP should assess the number of PAPs, propose alternative locations for the subprojects if possible, identify the eligibility criteria, include provisions for compensation and assistance, and address the means by which the project monitoring and evaluation will take place to ensure that the PAPs receive their compensation and that their grievances are heard and addressed. The mitigation measures and compensation policies proposed in the RAP shall be disclosed to the PAPs for feedback and comments. Once the project activities under the have been identified, they should be screened to determine whether or not they will necessitate the involuntary resettlement of people within the determined project area. Most likely, no need for IR will arise along the cycle, consequently the whole process of RAP/ARP will not be applicable. However, RAP/ARP process is explained in this RPF just to fulfill the function of the RPF as guidelines for the resettlement process. PRA/ARP during Project Identification - Project Screening The screening phase involves gathering information about land ownership, structures and uses of the land that would be directly affected. This information shall be verified by a qualified consultant who shall provide written and visualized records and enumerate all economic, residential or other ownerships and uses of the land that would be affected, together with an estimate of the numbers of people affected by type of impact. Screening should also include conducting introductory meetings with communities including PAPs to disseminate the prepared RPF and inform people about their rights and entitlements. - The Preparation of the Socio-economic Survey Following the identification of the project component that may necessitate involuntary resettlement, the next step would be prepare a socio-economic study, in which baseline data within the project s target areas is collected. The survey should examine several issues, among which, the nature of the impacts, the socio-economic and cultural setting, 14

15 local organizations, and social risks, total land holdings, affected assets as well as the indicators that would ensure that, at the least, the project affected people regain their former quality of life or preferably are enabled to improve it. - Preparation of RAP/ARP For projects that will trigger IR and will require the preparation of the RAP/ARP, their preparation should be considered prior to the appraisal phase. The preparation of the RAP/ARP should consider the key design criteria previously presented in Boxes 1 and 2 above. RAP/ARP during Project Appraisal The prepared RAP/ARP needs to be reviewed by an appraisal committee from the project team and other relevant local or central authorities and then sent for final approval by the Bank to clear and approve for implementation. The prepared RAP/ARP shall take into consideration the communities concerns and worries raised in the process of putting together the socio-economic survey. RAP/ARP during Project Implementation 1- Prior to the project implementation, PAPs that have been determined to be eligible for compensation should be compensated in accordance with the approved project s RAP/ARP. 2- A cut-off date should be determined by one month from the disclosure of the census and contradictory verifications of the census by the PAPs. 3- The PAPs will be formally informed through written or verbal notification (in case some of the PAPs are illiterate) delivered in the presence of at least one public official. 4- The PAP will be required to sign a contract detailing the acquired land plots and / or partially or completely affected structures and the corresponding types of compensation (i.e. cash or in-kind) that have been agreed upon. 5- A grievance mechanism should be devised in order for the PAPs to be able to voice their concerns, complaints, or dissatisfaction in issues related to the non-fulfillment of contracts, compensation entitlement, types and levels of compensation, compensation policy, acquisition / destruction of land or assets and resettlement, or development or transitional assistance. Airing of grievances is a key component to the resettlement process according to the OP Firstly, a proactive approach to grievances should be employed. A reactive approach should also be considered in case disputes and arise. The grievances should be addressed to the local mechanisms (LRC) or any other mechanism that should be devised to be in charge of monitoring grievances. RAP/ARP during Monitoring and Evaluation (M&E) M&E are key components of the RAP/ARP. M&E aim to monitor the compliance of implementation with the RAP/ARP, verify that project activities have been effectively completed, and evaluate medium and long-term impacts of resettlement on affected households livelihood. Vulnerability issues should be seriously considered by consulting the defined vulnerable groups. 15

16 Monitoring could be divided into internal monitoring and external monitoring. Internal monitoring will largely be the responsibility of the NCU in full collaboration with locally-devised resettlement mechanisms. It aims to oversee the progress in resettlement preparation and implementation through regular progress reports. Monthly information should be collected and a database for resettlement monitoring information should be established and updated monthly. Quarterly internal monitoring reports should be prepared by NCU and submitted to the WB. A wide range of participatory tools could serve for monitoring purposes. External monitoring should also be considered to ensure that the overall objective of the resettlement plan is achieved in an equitable and transparent manner. An external consultant should be hired by the NCU for this purpose. The consultant should review the same issues covered by the internal monitoring progress report as well as reviewing the competence and effectiveness of the agencies implementing the project (NCU), adequacy of compensation, ability to reach the most vulnerable PAPs, consultation and public disclosure of the RAP and effectiveness of the grievance redress mechanism. Evaluation, however, is intended to ensure policies (both Yemeni and the WB s) have been adhered to and to provide the feedback needed for adjusting strategic directions. The evaluation of resettlement activities will be part of general assessment and review activities undertaken for the as a whole. The evaluation process should utilize this RPF, which has accounted for Yemeni laws and regulations and WB OP 4.12., as the guiding instrument. Sources of Funding for the RPF/ARP As soon as the activities triggering IR have been identified and approved by relevant agencies and the WB, realistic cost estimates shall be calculated based on the data collected from the socio-economic survey on the estimated number of PAPs that are likely to be affected by the sub-projects and the quantity and types of affected assets. The NCU, supported by the WB, should be responsible for any compensation for land acquisition, as well as any capacity building activities done as part of the RAP/ARP process. Under the, some contractual procedures have been proposed by the ESMP in order to minimize any potential negative impacts on the income and livelihoods of the local communities. It is expected that these procedures will be fully funded by the contractor. Other complementary mitigation measures have been considered with budget allocations under the ESMP budget. Institutional Responsibilities under the RAP/ARP The World Bank: The Bank may provide assistance to assess and strengthen resettlement policies, strategies, legal frameworks, and specific plans at a country, region or sector level. WB also may finance technical assistance to strengthen the capacities of agencies or individual or finance technical assistance for developing resettlement policies or finance the investment cost of resettlement. Along the RAP/ARP cycle, WB also is responsible for screen findings, advise on the need for RAP/ARP, approve the developed 16

17 RAP/ARP, contract the external monitoring consultant and review Monitoring reports and send feedbacks to the NCU. The National Coordination Unit (NCU): NCU should play a major role in executing the resettlement process along the various project phases. The most important responsibilities for the NCU include, among others, screening the project activities, hiring resettlement consultants for the preparation of the RAP/ARP, preparing the ToRs for the LRC, ensuring that the interests of PAPs are addressed, facilitating different consultation activities and monitoring the resettlement efficiency. Local Councils: They are the key Governmental authorities of relevance to the execution of the resettlement program. They should coordinate with other Governmental organizations, follow up the resettlement process, follow up on the imbursement of compensation, and respond to the PAPs grievances. Non Governmental Organizations (NGOs): They are important players in ensuring the design and implementation of the resettlement plan is sensitive to the interest of the poor and vulnerable groups. External Consultants: The input of external consults will be needed in the preparation of RAP/ARP (in case this is needed). Consultants will also be needed to carry out capacity building on resettlement related issues and in M&E. Gaps between Yemen Legislation and the World Bank OP 4.12 The RPF defines a number of disparities between the Yemeni legislation and the WB OP These mainly encompass: Calculation and Timing of Compensation Definition of Affected Persons (PAPs) Public Participation, Consultation Grievance Mechanisms Vulnerable Groups Resettlement Assistance Rights of Squatters The RPF recommended measures for bridging theses gaps, most importantly, building the capacity of the concerned authority on Bank s OP 4.12, devising community mechanisms to consult with PAPs and to provide transparent information sharing and grievance mechanisms, providing resettlement assistance and full adherence to the OP 4.12 recommended procedures related to various aspects. Capacity building is crucial for efficient execution of the RAP/ARP and to ensure the implementation of the recommended measures for bridging the above gaps. The main entity responsible for the execution of the RAP/ARP is the NCU. Other institutions that have a stake in the process (e.g. the GALSUP, MoPWH, Local Councils, NGOs) should also have their capacities built. It is recommended that the capacity building program 17

18 focus on main two topics. The first is the legal issues of relevance to the resettlement including the Yemeni legislation and OP The second issue is the various participatory tools required to carry out the various community-base activities as recommended by the OP 4.12 in order to ensure full participation from PAPs in the resettlement process. STRUCTURE OF THIS RPF The Resettlement Policy Framework (RPF) for the is organized in the following order: Chapter 1 illustrates the RPF objectives and scope and the main elements that should be included in the RPF. It also includes an introduction that gives information about the, main objectives, predicted environmental and socio-economic impacts and the measures that should be considered in order to deal with the negative impacts. Chapter 2 presents a legal framework that highlights the various Yemeni legislation of relevance to land acquisition and involuntary resettlement for different purposes. It also highlights the main organizations in charge of managing land-related issues and the issues of relevance to involuntary resettlement. It also presents the key institutional challenges and main obstacles that face the practical application of the law. Chapter 3 explains the requirements of World Bank Operational Policy 4.12 and provides explanation for all the IR terminologies and concepts that were referred to in OP It also provides detailed guidelines on the preparation of a resettlement action plan (RAP) or an abbreviated resettlement plan (ARP). Chapter 4 pinpoints the main discrepancies between the Yemeni legislation and the WB OP 4.12 on involuntary resettlement. It also provides practical recommendations to bridge the gaps between the two legal frameworks and presents the capacity building needs in order to ensure the efficient implementation of the RAP/ARP. 18

19 CHAPTER ONE: INTRODUCTION AND PROJECT INFORMATION 1.1 Purpose, Composition and Scope of the Resettlement Policy Framework (RPF) It is a widely accepted fact that if left unmitigated, involuntary resettlement (IR), as a result of development projects, may produce economic, social and environmental risks. A Resettlement Policy Framework (RPF) is required when the extent and location of resettlement cannot be known at the appraisal phase. RPF is prepared in accordance with World Bank guidelines as set out in their OP and in compliance with Yemeni laws pertaining to resettlement and land acquisition in order to serve as the instrument to be employed should the issue of resettlement arise. The purpose of the RPF is to establish resettlement objectives, principles, organizational arrangements, overall design of the resettlement program, and funding mechanisms for any resettlement operation that may be necessary during the project preparation and implementation phases. The RPF may be triggered whenever a project activity entails the involuntary acquisition of land and / or the displacement of people. When the exact extent of land acquisition becomes known during the implementation phase, site specific Resettlement Action Plans (RAPs) or Abbreviated Resettlement Plans (ARPs) will be prepared, depending on the scale and severity of impacts. The resettlement process should be finalized prior to the commencement of any physical works. Why not prepare RAP/ARP during project appraisal? It is not possible to start by preparing a RAP or ARP during the project appraisal as the exact impact of the project and its different components/activities is difficult to determine or predict at that time. RPF then serves as the appropriate tool that the National Coordination Unit (NCU) submits, prior to appraisal. It includes guidelines for the preparation of RAP/ARP. It also estimates, to the extent feasible, the total population to be displaced and the overall resettlement costs. During project planning and when specific activities and zoning of the project become clearer, RAPs/ARPs, consistent with the RPF, should be prepared and submitted for approval before the start of any physical implementation. It is very unlikely that these plans will be needed under the, as explored below Key Elements that the RPF should include The RPF, in consistence with the WB OP 4.12, should include some key elements. It should start with a brief description of the project and components for which land acquisition and resettlement are required. It also should clearly explain the principles and objectives governing resettlement preparation and implementation and provide a description of the process for preparing and approving resettlement plans. To the extent feasible, estimated population displacement and likely categories of displaced persons 1 The full text of OP 4.12 could be accessed by visiting the WB website: ~theSitePK:502184,00.html 19

20 should be included. The RPF should also include eligibility criteria for defining various categories of displaced persons, a legal framework reviewing the fit between borrower laws and regulations, Bank policy requirements and measures proposed to bridge any gaps between them. Methods of valuing affected assets should also be established and organizational procedures for delivery of entitlements should be explained. The RPF should include a description of the implementation process, a description of grievance redress mechanisms, as well as a description of the arrangements for funding resettlement. Community participation should be a key consideration within the RPF. Thus, it should include a description of mechanisms for consultations with, and participation of, displaced persons in planning, implementation, and monitoring; and arrangements for monitoring by the implementing agency and, if required, by independent monitors The RPF should include: Screening project activities to determine whether or not they will necessitate the involuntary resettlement of people within the determined project area (e.g. cadastral information, other information on ownership, existing structures and uses of land that would be directly affected by the works). A description of the process for preparing and approving resettlement plans. Estimated population displacement and likely categories of displaced persons, to the extent feasible. Eligibility criteria for defining various categories of displaced persons. A legal framework reviewing the fit between borrower laws and regulations, Bank policy requirements and measures proposed to bridge any gaps between them. Methods of valuing affected assets. Organizational procedures for delivery of entitlements, including, for projects involving private sector intermediaries, the responsibilities of the financial intermediary, the government, and the private developer. A description of the implementation process, linking resettlement implementation to civil works. A description of grievance redress mechanisms. A description of the arrangements for funding resettlement, including the preparation and review of cost estimates, the flow of funds, and contingency arrangements. A description of mechanisms for consultations with, and participation of, displaced persons in planning, implementation, and monitoring. Arrangements for monitoring by the implementing agency and, if required, by independent monitors Scope of the RPF The RPF has been prepared in accordance with World Bank Operational Policy 4.12 for Involuntary Resettlement and in compliance with current Yemeni law pertaining to land acquisition and resettlement. Generic short and long term environmental and socioeconomic impacts potentially occurring from involuntary resettlement include: 20

21 Disruption of production and income generation, both on a temporary and permanent basis Loss of land or other assets Any effect on the incomes of local communities by introducing new income generation opportunities which are not suitable to the local skills Weakening of community and social fabric and networks Dispersion of family and kinship groups Loss of cultural identity and traditional authority 1.2 The Second Port Cities Development Program () Background The Second Port Cities Development Program () to be financed by the World Bank (WB) in the port cities of Aden, Hodeidah and Mukalla during the duration of 2010 to seeks to address the growing congestion due to inadequate economic and social infrastructure that is reducing the efficiency that accompanies agglomeration in the three cities. Infrastructure demand has exceeded supply with respect to almost all urban services in these cities. Most striking are the efficiency losses from existing infrastructure assets that serve as the backbone sustaining the urban economy. The Project Appraisal Document (PAD) highlighted the following issues within the targeted three cities: In Aden: Wholesale and retail trade, hotels and restaurants, and fishing generate almost four times the employment as manufacturing in Aden 2. The city has five municipal markets that serve the basic staple shopping needs for over 70 percent of the city s population. Located in core parts of the city, the potential of these markets to become vibrant socio-economic centers is undermined. However, congestion inside the markets makes regular cleaning impossible, and the unhygienic conditions are a public health risk. Some markets have become derelict and under-utilized because the buildings have fallen into a state of disrepair, leading to an increase in informal vending on the nearby streets, causing congestion. A relatively large portion of the locally sold produce fruit, vegetables, meat, fish is in fact sourced from within 100 miles of Aden, suggesting that the multiplier effects from having a vibrant local produce market structure are significant and could range between 1.5 to 2 3 creating positive spillover benefits. In Hodeidah: Exports from the fisheries sector in Hodeidah Governorate make up 64 percent of Yemen s total food exports. The fishing port in Hodeidah city currently generates 10,000 jobs for fisherman, and these jobs grew at 10 percent per year over In addition, the port generates three to four indirect jobs for every fishing job in material supply, boat repairs, and service provision. Despite the dominance of the 2 Aden Master Plan. 3 This is a conservative multiplier effect assumed for Aden, given that studies of similar multiplier effects in Canada and Georgia in the U.S. suggest that local market multipliers can be in the range of 2 to If 25 percent of produce is lost on average in street trading, but 20 percent can be gained from the existence of and improvements to an existing market facility, the benefits can result in a net savings of 5 per cent of the total value of the produce sold ( August 2006, Carl Bro and Dar Al Omran) 21

22 fisheries cluster as well as the critical importance of the fishing port in the urban economy, the port is severely congested, struggling to handle a demand that is 600 to 700 percent more than the design capacity 4. Furthermore, the productivity of the labor force in the fisheries cluster is undermined because the places where they live lack basic services. This is also true for half of the city s population. In such areas, a quarter of the population relies on standpipes and the majority is not connected to the sewer system because the system has not been expanded. This has led to a situation where sewage discharged into open pits may become a public health hazard for the whole city. In Mukalla: Mukalla, the capital of the Hadramout Governorate, one of the poorest regions in Yemen, is the gateway to a valley that houses cultural World Heritage sites. The number of passenger flights, as well as flights operated by oil exploration companies, has been growing by over 20 percent per year since International airlines have also recently expressed interest in operating passenger services from the Mukalla airport. Current demand has already outstripped the existing capacity of the passenger terminal and passengers experience considerable delays. This congestion is likely to worsen, as the passenger volume is expected to more than double over the period In addition, traffic at major intersections linked to arteries that discharge traffic from the airport and the port into the city are congested. This is largely because of ill-designed traffic patterns, uncontrolled parking, and the lack of pedestrian crossings Objectives The objective of the project is to improve conditions of select infrastructure that supports the urban economy of the three strategic port cities of Yemen, namely, Aden, Hodeidah and Mukalla. Progress towards achieving the objective of the project will be measured through the following indicators in the three port cities: In Aden: (i) increase in available formal retail space used in four municipal markets; in Hodeidah: (ii) increase in number of fishing boats per day that have access to the pier and auction halls; and (iii) increase in the number of households with all weather access, water, and sewerage connections; in Mukalla: (vi) time savings for passengers landing at Rayyan Airport; and (v) reduced time losses at the select road intersections. Through the project contributions to attaining these indicators, the project is perceived to support the GOY s Third Socio-Economic Development Plan for Poverty Reduction (DPPR) for the period The World Bank s Country Assistance Strategy ( ) has four strategic objectives and the supports CAS objectives of relevance to accelerating and diversifying economic growth and fostering human and social development. 4 The artisanal fiberglass boats wait a day, and the larger wooden boats of the artisanal fishermen, wait one to four days. 5 Final Feasibility Report, Improvement of Mukalla International Airport at Rayyan, January

23 1.2.3 Summary of the Current Situation The drafted Environmental and Social Impact Assessments (ESIAs) for the major investment project in Hodeidah, as well as the findings of the rapid social assessment activities that have been carried out in Aden markets and fed into the Project Appraisal Document (PAD), shed the light on the current situation of relevance to the project in the three targeted cities. The following summarizes the situation: In Aden Despite the commercial importance of the wholesale and retail markets located in Aden city for securing key supplies for the population, creating economic opportunities for large portion of the population and serving as important contributors to the city economics, the current situation inside the majority of these markets prevents them from efficiently playing their vital role. These markets are old and in disrepair and the operating condition of support infrastructure is unsatisfactory. Congestion inside the markets makes regular cleaning impossible, and the unhygienic conditions are a public health risk. Some markets have become derelict and under-utilized because the buildings have fallen into a state of disrepair, leading to an increase in informal vending on the nearby streets, causing congestion. At present, all four Aden markets suffer from lack of space and insufficient arrangements in each market. This leads to the illegal sale of products outside of the market a matter of necessity in the case of Sheik Othman, where street sellers want to be accommodated inside the market where business is strong. For Crater, Mansura and Ma alla markets, it is a matter of preference: customer-unfriendly market arrangements push sellers onto the streets. These sellers tolerate the periodic confiscation of illegally-sold produce by authorities as they save paying the monthly market stall rents and make higher profits on the street. Secondly, each market has inadequate logistics coupled with inadequate utilities such as water, sewage/ drainage, toilets, electricity, ice boxes, roofs, safety issues, etc. Thirdly, institutional and governance issues hamper effective and productive market management and administration. Asset ownership, decision-making and flow of funds (including revenues and taxes) are unclear and fragmented among different stakeholders. For instance, the Municipality s Department for Public Works owns the land of the market, manages the market, and collects the market stall rent, which is set by the Local Council. Respective revenues are transferred to the Cleaning and Improvement Fund which finances cleaning worker salaries and remainder flows into Yemen s general budget (in the past, revenues stayed at municipal level). In Hodeidah Hodeidah fishing port is currently host to around 2,000 boats (2009) which represents around 600 to 700 percent more than the design capacity. More than 10,000 fishermen work on these vessels. The old age of the port and the increasing demands and pressures on its utilities, accompanied by the very poor level of maintenance of port facilities, has resulted in deterioration of the port infrastructure. The HFP is currently overloaded with fishing boats and suffers from poor hygienic conditions due to lack of sanitary facilities 23

24 for fish storage, wastewater and solid waste collection and disposal. The subsequent costs of resulting complications are borne by the fishermen, administrative officers and others, such as those who sell fish in the auction halls. In the meantime, the quay provides a very limited space for many activities, including uploading fish, light boat repairs and boat storage. The waiting and parking areas inside and outside the fishing port are insufficient and contribute to congestion as well as unsightly and dangerous conditions. The port is vulnerable to chaotic and confusing conditions, a result of unorganized activities, such as the congested mooring area which causes difficulties in boat parking. Auction halls lack continuous walling and/or doors that ought to prevent fish contamination by sand and dust and to restrict access. The temperature within the halls is not controlled, exposing fish to high risk of contamination. Inadequate quality control is a threat to the expansion of fish export activities as well as to public health. Sediment deposits pose one of the main problems in HFP. This problem is currently very obvious in the northern entrance of the port which port users consider to be an issue of top priority. No sanitary network exists in the port and sewage is currently dumped and discharged into the sea, causing risk to human health and the marine environment. In Mukalla The interviewed stakeholders as part of the preparation of the ESIA expressed concerns about the current situation in MIA in terms of the inadequacy of the present airport facilities to handle the current demand. Current strain on the airport has lead to significant congestion at the Passenger Terminal Building and in the cargo storage areas. The facilities needed to handle the expected increase in international flights/passengers are not presently available. The congestion is expected to be exacerbated with the increase in passenger numbers, unless the handling capacity of MIA is enhanced and a few other upgrades are instituted in the Terminal Building. With reference to the targeted traffic junction in Mukalla, street users expressed major concerns about the current situation including the absence of safe pedestrians' crossings, the increased risk vulnerable groups like the elders and people with special needs, poor traffic geometrics and several behavioral challenges Proposed Sub-Projects under the In Aden Designs and Rehabilitation of Four Markets in Aden The project aims to increase the available formal retail space used in the four municipal markets of Crater Market, Sheikh Othman Market, Mansura Market and Ma alla Market. The project would be designed with the participation of the public and private sector stakeholders to ensure demand-responsive designs for rehabilitation to enhance acceptability of designs, O&M, and therefore sustainability of service delivery. The designs for the rehabilitation of municipal markets are being prepared by local 24

25 engineering firms, in response to design briefs that were an outcome of social assessments. In Hodeidah The Rehabilitation and Improvement of Hodeidah Fishing Port (RIHFP) The project seeks to alleviate the sediment transport problem and provide suitable depth for the HFP basin and access channel for the movement of fishing boats, alleviate the high density of boats, provide extra area for mooring boats, improve the infrastructure, provide facilities for adequate fish processing and storage and improve hygienic conditions at the port. This will be attained through a combination of marine and onshore works that most importantly include extending the port by adding an area of 7,500 m 2 to the port basin from the south, deepening the port basin and the access channel, constructing a spur breakwater and establishing a boat repair yard with paved roads and a boat hauler. Moreover, RIHFP will include upgrading existing infrastructure, including the water supply network and the seawater supply network. In Mukalla Mukalla International Airport Improvement Project (MIAIP) MIAIP aims to enable MIA to benefit from the liberalization of air traffic resulting from the Open Skies Policy applied in Aden and Mukalla, to attract a larger number of airline companies and to allow the MIA to handle greater number of passengers and visitors to the city and the region. In order to achieve these objectives, the project will involve the construction of a new terminal building and establishing a new parking area, improving runway lighting, replacing transformers of the VOR and transmitter systems, introducing two diesel generators and constructing new cargo hangers. Traffic Junctions Improvement Project (TJIP) JTIP aims to increase vehicles flow and speed by limiting congestion time at major junctions. It also seeks to provide facilities for safe pedestrian movement at these junctions and work towards ensuring driver safety by providing sufficient instructions and signage for drivers. The specific activities of TJIP comprise ground improvements, road marking, fixing signs and signalization and introduce general regulatory measures to control parking habits, which causes the narrowing of traffic lanes Potential Environmental and Social Impacts It is predicted that the implementation of the will result in significant positive outcomes including the provision of inclusive and sustainable rehabilitation investments that benefit the societies and urban economies of the three port cities through beneficiaryidentified needs, community mobilization, basic services for poor groups; transparency of capital investments; open communication; and the potential for scaling up these 25

26 outcomes. The predicted Environmental and Social Impacts for each of the projects are summarized in Table 1.1 below: Table 1.1: The Main Positive Environmental and Social Impacts Predicted from the In Aden Increase in available formal retail space utilized in four municipal markets. Facilitation of economic development, and thereby an increase in local incomes. Reduction of the need or incentive to sell outside of the market which distracts customers from entering the markets and reduces the profits of the inside market sellers. Empowerment of market users by enabling them to participate in the design of the rehabilitation process. Improved movement and safety of vehicular and pedestrian traffic within the market neighborhoods. Reduction of daily losses on perishable products. Potential increase in real estate process of properties in the market vicinities. Time-savings for customers. In Hodeidah Improved water quality of the port basin. Rehabilitation of the existing contaminated areas. Introduction of waste and scrap management systems. Reduction of noise levels at some locations throughout the port. Job opportunities (temporary and permanent). More hygienic working conditions and more socially-viable workplace. Better accessibility to the port through the alleviation of existing congestion. Enhanced potential for economic opportunities in the fishing sector. Provision of higher quality products for consumers. Increased sense of trust and better administrative atmosphere. In Mukalla Creation of temporary and permanent job opportunities for the local people of Mukalla, both directly related to the project and in other complementary fields that are expected to develop. Enhanced economic opportunities for MIA. Provision of more travel opportunities. Time-savings for passengers and cargo companies. Improved aviation safety. Improved safety measures for pedestrians and other road users. Generation of revenues for the local authority. Enhanced social harmony through reduction of reasons for tensions. Special benefits for the most vulnerable categories of the community. Environmental benefits like reductions in vehicles air emission and noise sources. 26

27 Table 1.2: Potential Negative Impacts and the Mitigation Measures for the Municipal Market Rehabilitation, Aden 6 During Construction Interruption to the daily business in the market During Operation Continued informal sales outside of rehabilitated Aden market despite rehabilitation Elite capture of rehabilitated markets Risk of lack of sustainability Construction activities should be staged The use of temporary facilities should be allowed The rehabilitation construction should be monitored by community representatives Communication during the development and implementation of the rehabilitation designs should be supported Information should be shared transparently Market users should be mobilized and involved in project design and implementation Public awareness campaigns should support enforcement of rules and standards of the Aden markets Participatory design processes should be created to mobilize beneficiaries and engage them with engineers, designers, and architects Beneficiaries should be involved in the M&E The number of Aden market stalls for sale to one seller should be monitored The intermediation by middlemen during the stall leasing process should be eliminated A certain number of stalls for each product should be designated to poorer sellers Enhanced community participation should be encouraged in market management, arrangements for O&M, and the already planned demand-driven rehabilitation design and implementation Table 1.3: Potential Negative Impacts and the Mitigation Measures of RIHFP, Hodeidah During Construction Risks of asbestos fibers being released during the demolition of auction halls Risks associated with removing the contaminated waste soil Demolition should be undertaken under the supervision of an international asbestos management company The waste should be shipped to an authorized asbestos landfill Air around the demolition site be monitored for contamination of asbestos fibers on a daily basis Clean-up process should be supervised by a specialized environmental consultant Clean-up should include the replacement of existing diesel ASTs, fuel pump and piping system to avoid future leaks 6 It should be noted that plenty of the mentioned potential impacts tend more to be potential risks that the proposed mitigation measures will contribute to decreasing their probability. 27

28 During Construction Impacts of offshore dumping of dredging waste into the marine environment Impacts of onshore disposal of dredging waste on the landscape properties of the disposal site Impacts of the temporary storage of construction waste and materials Inconvenience and delays affecting fishermen activities Impacts on air quality Noise impacts Impact on HFP local businesses During Operation Poor water circulation in the southern part of the basin extension Waste quantities should be monitored An approval be obtained from YRSPC for using their offshore disposal site near Ras Kateib Of the five onshore sites that were studied, one was excluded and the other four were classified according to environmental preference Measures were taken to avoid the occupation of a large area in the HFP The volume of exported waste should be monitored daily during dredging A detailed plan for temporary storage of construction waste and materials should be prepared prior to construction No large volumes of quarry materials should be imported during the demolition of the existing breakwater Staging of construction works in close consultation with concerned stakeholders Activities in existing facilities (northern jetties, auction halls and administration building) should not be stopped unless the construction of replacement facilities is complete Dredging the port marine entrance should only be performed during the few hours of the day and a navigation safety plan should be implemented Fishermen complaints should be Monitored Land-based work and dust-generating activities should be stopped during sand storms Quarry materials should be sprayed before unloading and contractor should be committed to using vehicles with efficient fuel combustion systems Ambient air quality should be monitored Construction workers should use earmuffs in noisy areas and noisy activities should be arranged around noon and the early afternoon Noise levels should be monitored on a quarterly basis Arrangements and assistance (such as moving allowances) in insure the smallest amount of inconvenience for local business should be provided Complaints should be monitored A floating surface aerator should be utilized in stagnant areas when needed Waste bins should be distributed along platforms to prevent littering within port basin 28

29 During Construction Impacts of handling hazardous materials and waste Impacts of scrap and general solid waste Impacts of new generators and additional vehicles Financial burden on port users from possible fees Suitable fire safety precautions should be followed Adequate collection for used lubricant oils should be employed Existing scrap items should be sold for recycling/reuse No scrap boats should be stored at the port Generators should have a high level of combustion efficiency Biannual monitoring of ambient air quality should occur A WTP survey to identify suitability of such fees with regards to fishermen conditions should be undertaken A subsidy mechanism should be developed Table 1.4: Potential Negative Impacts and the Mitigation Measures of MIAIP, Mukalla During Construction Risks of asbestos fibers during the demolition of three asbestos hangers Risks from contaminated soil waste Impacts of scrap waste on replacing equipment and airfield lighting fixtures Impacts on air quality from earthworks Noise impacts During Operation Noise impacts Impacts on air quality Demolition should be undertaken under supervision of an international asbestos management company Supervision of the clean-up process by a specialized environmental consultant should occur Waste quantities should be monitored A stipulation that the supplier of equipment must remove old equipment for reuse/recycling and handle the reorganization/rehabilitation of existing scrap store must be made Water should be sprayed before earthworks and demolitions The contractor should be required to use low emissions machinery Ambient air quality should be monitored quarterly during construction Construction workers should be provided with ear muffs Terminal finishing works should be arranged during times when nearby halls have few passengers A noise map should be developed for MIA and surrounding areas Workers should be instructed to wear ear muffs in noisy areas Noise should be monitored at different locations quarterly Generators with highest combustion efficiency should be provided Suitable chimney heights as stipulations should be provided in the tender document 29

30 Impacts of hazardous waste Ambient air quality should be monitored near the generator house Suppliers of chemicals and oils should be required to take back used containers Those in possession of expired chemicals should be required to handle these materials at their own liability Records of handled hazardous waste should be kept and an inventory monitoring should be instituted Table 1.5: Potential Negative Impacts and the Mitigation Measures of TJIP, Mukalla During Construction Impacts on local shops Inconvenience to pedestrians and traffic delays due to detours Noise impacts of construction machinery Impacts on air quality During Operation Primarily impacting local business Traffic route options that would least affect local business should be selected Local business should be consulted through field surveys The most suitable detours should be identified Awareness raising campaigns should be carried out Coordination mechanisms should be established among various stakeholders Safe passages for pedestrians should be prepared The number of complaints and the actions taken to in response to these complaints should be monitored Construction workers should be provided with ear muffs Hours of operation of noisy equipment should be organized in communication with neighbors Water should be sprayed before demolitions The contractor should be required to use low emissions machinery Street sellers' survey should be undertaken to learn about the recommended actions that best suit their requirements and assets in a case-by-case approach 1.3 Components and Involuntary Resettlement This RPF was prepared during the appraisal stage. During this stage, the subprojects were identified and the project designs were completed for some of the subprojects. The project designs for other projects remain under preparation. The previous stage of the involved the preparation of the ESIA for the aforementioned projects in Hodeidah and Mukalla and a social assessment is underway for the Aden project. The previous activities involved wide range of stakeholders consultation activities and field investigations. This significantly helped in engaging the various stakeholders groups, including the potential beneficiaries, in predicting the potential 30

31 impacts of the project and in proposing mitigation measures to eliminate the negative impacts. The various consultation activities, as well as the initial screening of the potential activities under the, showed that no physical loss of assets is predicted to occur under any of the sub-projects. It is, however, predicted that temporary disturbance for the livelihoods of local community groups might occur during the construction phase of the sub-projects due to the activities associated with physical works and need for temporary land acquisition in the three cities as indicated under Tables 1.2, 1.3, 1.4 and 1.5. Some longer term impacts could also be encountered by certain community groups as an indirect consequence of the project intervention. However, these impacts could not be classified as involuntary resettlement. The significance of these impacts is expected to be reduced to a minor or negligible with adherence to the proposed mitigation measures described in the Environmental and Social Management Plan (ESMP). It should be noted that there will be compensation for these temporary impacts during the operation of the project in the three cities due to fact that the implemented improvements will help in enhancing the livelihoods of local community members including those who might be temporarily disadvantaged during the construction phase. The following summarize these impacts in the three cities: In Aden Temporary restriction to access to certain parts within the workplace in the four targeted markets may cause interruption to the market sellers' daily business. In Hodieda Temporary restriction to access to certain parts within the fishing port due to the operation of machinery in these parts or due to health and safety measures might result in inconvenience and business delays that may affect the fishermen and other port users. Temporary disturbances might also be encountered by the existing shops inside the port hall that will be relocated to other places/shops (the new shops will be constructed by the fence on the perimeter of the port as part of the port rehabilitation). In Mukalla Reduction in the customers flow to local shops and kiosks due to the construction works in Mukalla traffic intersections. There is also a possibility that preventing parking in certain places in Mukalla may result in reduction in the customers' influx to local shops and street sellers after project operation as highlighted in Table 1.6 below. 31

32 Table 1.6 Summary of the Potentially Affected Groups in Mukalla Junction Affected groups Reason Type of Impacts The Chinese Kiosks and local bridge shops roundabout Al Salama Hospital 30 th November Ishara (Al Deas) Kiosks and local shops Minibus drivers Bus and taxi drivers Bus and taxi drivers Local shops Informal vegetable and fruit street sellers Impact Severity 7 Preventing on-street parking Indirect Low to medium Preventing on-street parking Indirect Low Relocating taxi and bus parking to new areas Relocating taxi and bus parking to new areas Relocating taxi and bus parking to new areas Reduced customer flow due to relocation of minibus parks Reduced customer flow due to relocation of minibus parking Preventing street sellers from selling at the place where they are currently sell Direct Direct Direct Indirect Indirect Low Low Low Low Medium Direct Low to Medium 8 (*) Odeibee Ben Azoun, Bashraheal and Al Rawda Odeibee Car Show Informal drinks and hot food sellers (shawerma, sambousa, fried food, etc.) from hand carts Preventing the show room from displaying cars on the street to stop encroachment of platform Preventing street sellers from selling at the place where they are currently sell Direct Low Direct Low to Medium (*) Mitigating the Negative Impacts on Local Groups Livelihoods Mitigating the various mentioned impacts is perceived to be manageable through various mitigation measures in the ESMP that focus mainly on phasing work, engaging local 7 It should be noted that determining the degree of the impact severity considered factors such as the legal compatibility of the affected groups, which make them less vulnerable to the negative impacts on their livelihoods, and the availability of alternatives to be provided by the project (e.g. for taxis and minibuses, they will be relocated in other determined locations so the impact is ranked as low). 8 (*) the significance of these impacts has been changed from high in the draft ESIA to low to medium after the public consultation after learning that these groups of street sellers spend only few hours per day in these intersection and after making sure that their mobility will highly allow them to voluntarily change the location and restore living in different parts of the street. 32

33 communities including potential PAPs in the planning of the various project activities and carrying out community survey and awareness raising activities through the existing active NGOs in the cities. It is worth mentioning that the ESMP included budgets for the different measures that will require separate allocations. For mitigation measures that are part of the contractual conditions and procedures, the ESMP stated how these measures should be addressed and highlighted the institutional responsibilities in adhering to these measures. The NCU is proposed to play a major role in supervising the implementation of the mitigation measure and in facilitating the various consultation activities with PAPs. 33

34 CHAPTER TWO: YEMENI LEGAL AND INSTITUTIONAL FRAMEWORK This chapter of the RPF identifies the most relevant elements of the Yemeni legal and institutional framework with respect to property rights and land expropriation. Yemeni legislation must be fully considered during the evaluation of project proposals that may result in involuntary resettlement. The chapter also includes a review of current institutional arrangements, valuation and compensation methods, grievance and redress procedures, administrative and court appeal mechanisms, and legal requirements for the disclosure for information. It also sheds light on the main issues and challenges related to the land management system in Yemen. 2.1 Main National Legislation that Regulate Land Declaration Yemeni Legislation includes several provisions that regulate the process of declaring land plots for public interest, the provisions for expropriation and compensation, the definition of rights of owners and use of communal property. The key subjects related to land property and land acquisition in the main pieces of Yemeni legislations that deal with them could be summarized in the following: Public Ownership Yemeni Constitution, Article 18, 19 and Civil Law, Articles 118, 119, 120 Private Property Yemeni Constitution, Article 7, 20 and Civil Law, Articles 1154, 1159 Common Use of Land Law no. 21 of 1995 concerning State Land and Real Estate and the Republican Decree 170 of 1996 Waqf/ Endowment Land Waqf Law no. 23 of 1992 and the Republican Decree 99 of 1996 Agricultural Land Yemeni Constitution, Article 7, Paragraph (c) and Civil Law, Articles 761, 765, 770, 1159 Neighborhood Rights Civil Law, Articles 1161, 1163, 1164 Squatters Law no. 21 of 1995 concerning State Land and Real Estate, Articles 58, 59 Land Acquisition Issues for the Public Interest Law no. 1 of 1995 (the Public Eminent Domain Law) Articles 1, 2 (defining projects for public interest) Article 4 on the administrative procedures for land acquisition Article 6 on the mutually agreed procedures for land acquisition Article 7 on the judicial procedures for land acquisition Articles on temporary acquisition Articles 21, 27 provide general provision on acquisition 34

35 2.2 Land Ownership within the Yemeni Legislative Framework Land ownership is primarily based on the principles of Islamic law (Shari a law). The main types of land are categorized in Figure 1 below. Type of Land Privately- Owned State- Owned (Miri) Communal Property Religious Land (Waqf) Land used by Squatters Land for Neighborhood Rights Other Types of Land Barren Land Desert Land White Land Marafeq Amaa Figure 2.1: The Categorization of the Main Types of Land under Yemeni Law Privately-Owned Land Privately owned land covers all land held in private ownership, urban or rural, which is neither Waqf nor Miri. It is subject to Shari a Law which dictates that the direct descendents of the rightful owner will inherit the land upon the death of the owner, and only in the case that this is not possible may indirect descendents inherit it. Private land may be Freehold, in which case certain interests are owned in perpetuity, or Leasehold, where certain interests are maintained for a specific period. Other than that, privatelyowned land is administered under customary law through a "Title Deed" or other contractual document signed by a religious authority or a sheikh who is also responsible for ownership records. While this practice provides for the availability of information on tenure, boundaries and other features, there is often conflict between these documents and the details shown in cadastral records. Private land property is also governed by the constitution and the civil law as indicated below: 1- Constitution Article 20: Public appropriation of property is forbidden. Private appropriation is unlawful without judicial decision. Article 7 Paragraph (c): Private property shall be respected and protected. Actions contrary to what have been stated will be taken if and only if it is absolutely necessary and is in the best common interest and against fair compensation in accordance with the Law. 35

36 2- Civil Law Article 1159: The article withholds the right to anyone to deprive any other of his property except in accordance with the provisions of jurisprudence and the procedures described therein, and against fair compensation in accordance with the law. Article 1154: Only the owner of the entity can benefit from it, use it and exploit it as he wishes but within the limits of the provisions of the jurisprudence laws. However, the practical application of private land management issues is confronted with many challenges including: No full inventory of privately-owned land exists. The growing confusion over communal land and the privately-owned land which results in lack of clarity and is a source of conflict. There is increasing trend toward private appropriation of communal land. The overlapping responsibilities between the locally-based traditional systems and the central government. The intervention of central government. There is also little public confidence in the Land Registry, mainly in the rural areas where owners depends on local community leader for obtaining documents / deeds which is the base for non-registered land and sheiks, who are the prime beneficiaries of land conflict, cannot be neutral arbitrators, An ineffective court system overburdened with land conflict cases and the absence of defined definitions for the issues related to land acquisition within civil law State-Owned or Government Land Under Article 118 of the Civil Law, State-owned or government land is defined as whatever the State or public bodies actually own, or owns in accordance with the law, such property shall not disposed of or confiscated. Individuals shall not be entitled the ownership of such property as long as it remained public. Any other form of property shall be considered as private whether owned by the State or public bodies or owned by an individuals. State-owned or government land is land which was previously the property of the formal royal family and was taken over by state upon the formation of the Yemen Arab Republic in It consist of large areas of open land, land for military use, land on which public service buildings (i.e. schools, hospitals and ministries) are built and land granted by the government for public utility (i.e. roads and streets). State agricultural and barren lands are to be disposed by an open auction. The law compels whosoever buys or leases barren land to reclaim and cultivate it within a period of two years from the date of the sale or lease; otherwise the contract is considered void without further legal action. For desert land, the time period after which the contract shall be considered terminated is five years. The main legislation for dealing with state-owned or governmental land includes the following: 36

37 Constitution Article 19: Public property and assets have certain inviolability, which should be protected and safeguarded by the state and all civilians. Any infringement or transgression of such property or assets is an act of aggression and sabotage against society as a whole. The perpetrator of such wrong-doings shall be punished in accordance with the Law. Article 18: Public property, funds, assets and property owned by the state or public body corporate, and shall be allocated to public benefit in deed or pursuant to a Law or resolution. Such funds may not be disposed of or be confiscated or put in the possession of individuals as long as these remain public. Individuals or persons may benefit from public funds according to the purposes for which they are designed and in line with the Law. Other than that, funds are private property irrespective of whether owned by the state body corporate or natural persons. Civil Law: Article 118: (Defines Public Property as explained above) Article 119: Public Property shall lose its identity by actually ending the purpose for its use as Public Property, or in accordance with a law or a resolution or by ending the purpose for which it has been assigned as public utilization. Article 120: The State and Public Bodies may deal with its property in all forms of dealings indicated in the law. Barren lands not owned by any person shall be considered permissible to all, the State or the individual may possess ownership in accordance to what is indicated by the law. Law no. 21 of 1995 Under this Law, State lands are also deemed to include the following: White lands: Land which is situated outside the boundaries of official urban plan and connected with surveyed lands. Such lands are situated within the structural plans of cities; Al Muraheq Al Amma; mountains, hills and steep slopes that receive and discharge rain water and the Great Wadis through which the collected flood water runs; Coasts, their natural protected boundaries and semi-depopulated islands; Barren land; open or abandoned land, forests, sand areas and land covered by sand, which are not otherwise the property of an individual; and, Land and estates not owned by an individual and with no inheritors according the principles jurisdictions of Shari a Law Communal Land Communal land is primarily used for grazing and firewood collection. Customary law entrusts sheikhs with the management of communal land but there is a trend towards increasing private appropriation by traditional natural leaders in villages (sheikhs). In recent years, as land speculation has increased, especially in areas close to towns where there is a growing confusion between communal land and privately-owned land. 37

38 Republican Decrees no. 170 of 1996 concerning Law no. 21 of 1995 of Lands and Real Estate: Defines land it as an annex to cultivated land if it is adjacent to it, and if the average height of the Common-Use Land is not greater than twenty degrees, or similar. If the average height of the Common-Use Land is greater than this average then the slope must be measured from the demarcation line between the Common-Use Land and the adjoining cultivated land such as mountains, mounds, and slopes that constitutes rain water catchment areas and run-off routes. Among Common-Use Land is the great rain water run-off route which constitutes the main rain water flow route into which branch routes discharge their content. Article 2 of the Republican Decree concerning Law no. 21 dated 1995 concerning State land and property, Article 41 of the Law referred to above: Common-Use Lands are considered to be fully and completely owned by the State. Law no. 21 of 1995 Article 43: The right of ownership of the Raqabah by owners of land which is adjacent to Common-Use Land does not take effect in accordance with the provisions of the previous Article (above) until after the expiry of the common benefit rights of the neighborhood in these Common-Use Lands. Article 44: The right to benefit from Common-Use Land, or from parts of it, which is owned by the State remain available to all whether for grazing or logging for firewood or others. The State cannot violate these rights except when these violations are in the best interest of all. Article 46: Cultivated steps that pass through Common-Use Land or those which will be constructed in future outside the limits of main cities will be considered as private property of their owners before the issue of this Law. Articles of the Republican Decree no (the executive bylaw of the Law concerning State-owned land and properties no. 21) General Authority for Land Survey and Urban Planning (GALSUP) or its offices in the governorates is to identify the State s Common-Use Lands, fix their positions, calculate their total areas, measure their slopes and then put them on special maps. Copies of these documents and maps must then be distributed to trustees and authenticating offices in each city, and to Property Registration offices so that no document shall be issued with regards to dealing with these lands except after securing the express permission of the State s Properties Authority. Those concerned should approach the Authority or its concerned office with respect to sorting and identification of Common-Use Land they are interested in accordance with the provisions of the Law mentioned above. The main challenges with the definition and management of communal land involve the following: Lack of clarity has become an issue in certain cases dealing with definitions of communal land and private land, especially in recent years, as land speculation has increased (particularly in areas close to towns). There is a trend towards the increasing private appropriation of communal land. Customary law entrusts sheikhs with the management of communal lands, primarily used for grazing and firewood collection. 38

39 2.2.4 Endowment/ Waqf Land Waqf endowment essentially means the arrest (freezing) of assets and the disbursement of benefits (profits, rents, etc.) in seeking God s favor. Waqf land is land held in permanent trust by the Ministry of Waqf for the benefit of Moslem religious institutes and charitable institutions such as mosques, schools and hospitals. There are three main types of Waqf property: 1- Inner Waqf; comprising all mosques and their land in urban areas and properties held in the rural areas whose revenues are used for the benefit of urban mosques; 2- Outer Waqf; comprising all mosques and their land in rural areas used for the upkeep of mosques and religious institutes in villages; and, 3- Private Waqf; land in private ownership where a portion of income is donated for religious purposes and remains an encumbrance on the land in perpetuity. The legislative base for dealing with Waqf property could be summarized in the following: Constitution Article 22: Endowments have sanctuary rights, and those responsible for it have the duty of improving and developing their resources in a manner that fulfils its objectives and the jurisprudence requirements. Waqf Law no. 23 of 1992 and Estates Republic Decree no : defines leasing Waqf Lands Agriculture Land Agriculture land is defined as actual cultivated lands or lands that are prepared for cultivation. The following are the main legislations that regulate the management of agriculture land: Constitution Article 7 Paragraph c: Private property shall be respected and protected and shall not be infringed upon except when justified by necessity and for the public interest, this shall be in return for a fair compensation according the law. Civil Law Article 527: Registering the contracts emphasizes that in selling lands, ownership as a result of sale shall not be transferred between the contractees or for others except from the time when the deed of sale is registered in the records, prepared for this purpose and is in accordance with the special laws. Article 756: Permits the leasing of agricultural lands and other type of lands according to the consent of the contractees. 39

40 Article 1159: It is not permissible for anyone to deprive any other person from his rightful property except when it is allowed by the jurisprudence law (Islamic Law) and in a manner stated in this law and with a fair compensation Article 761, 765 and 770: Defines the term plantation, farming and irrigation, respectively Land for Neighborhood Rights An owner must not exercise his rights excessively to the extent of causing harm to the property of his neighbor, nor should the neighbor blame his neighbor for any unavoidable harm that may suffer as a result of being neighbors (Civil Law, Article 1161). The civil law is the only piece of legislation of relevance to the neighborhood rights. Civil Law Article 1161: explains what is meant by neighborhood rights as above. Article 1163: If an owner builds a water duct or canal on his property, then it does not become permissible for his neighbors to use it unless an agreement has been reached. Thereafter, if what has been agreed upon is implemented, the participation of the neighbors with the owner in the cost of construction and maintenance are indications of the satisfaction of the owner. Article 1164: The owner of a land must allow sufficient water to flow through his land to irrigate pieces of land that are far from the source of water, or to allow the flow of surplus water to discharge into a nearest discharge point, against affair compensation. If a piece of land, through which a water stream passes, suffers harm or damage then the owner has the right to demand a fair compensation for suffering such harm or damage. While, on the other hand, an owner who has, through his land, right of flow or discharge cannot prohibit the normal flow even if it causes harm. 2.3 Laws Governing Squatters Squatters are those who undertake controlling any Lands or Estates which are owned by the State. Law 21 of 1995 on Land and Real Estate is the most important law that deals with squatters and their rights, particularly under Articles 58 and 59 as stated below. Law no. 21 of 1995 Article 58: Every normal or legal person who has undertaken the control of land before the issuance of this Law for any Lands or Estates which are owned by the State, is considered an aggressor and shall be submitted to punishment as stipulated in Article no. 48 of this Law.. Everyone who has initiated by writing informing the Authority for what he/she is controlling shall be exempted from this punishment. The information submitted shall contain statement of the Land Site, its area and any another information,and what has been created in this Land by him/her after the aggression, during a maximum period of three months begins from the announcement date which is issued by the Authority through the different media. Anyone who has delayed of this deadline would be treated as aggressor on what he/she is controlling of Lands and the Authority in coordinating with the security and judiciary bodies shall undertake the ensuring measures for recovering the land by legal methods and pursuit the aggressors and handing them to the judiciary. 40

41 Article 59: Every one of those controllers who has informed the Authority on time, according to the provisions of previous Article, has the right to purchase or rent land, which he/she controls. If the land use was contrary of the detailing designs, he/she has the right to secure another plot as an alternative in the area to fulfill the objective of the previous land, upon which he/she was intending to implement this objective to the fullest. A Technical Committee shall be formed for estimating the sale or rent prices of these Lands according to the principles and standards which shall be set forth by the Minister's Decree for Formation of the Committee, with due consideration of the situations of those with limited income. 2.4 Land Acquisition: Key Issues and Procedures Public Eminent Domain Law no. 1 of 1995: This law aims at locating and identifying State Lands and Estates 9, and placing plans that identify such lands, and protect and maintain them against any kind of aggression. Public ownership is natural land or land that has been prepared for public use, after fair possession under Public Interest Law no. 21 of It regulates Land Acquisition for the Public Interest. Article 1: Ministries, authorities and general intuitions may carry out acquisitions for the public interest when justified by necessity, in return for a fair compensation in accordance with this Law of real estate and all the content inclusive of land for the purpose of the execution of projects that bear public interest. Article 2: "Projects of Public Interest, are all those related to Vital projects that have no other alternatives like 1) water sanitation installations, sites of mineral, oil, and gas resources, airports, harbors, dams and irrigation and water supply projects and 2) shelters, trenches and access and all types of installations required by security and defense and Vital projects which have other alternatives like 1) mosques, cemeteries/graveyards, schools, institutes, universities, hospitals, military camps/barracks, police stations, slaughterhouses, orphanages, roads and markets 2) industrial zones, agricultural installations, electricity projects, communications and postal services 3) national parks, public squares, sport clubs, cultural centers, tourist facilities, housing installations and construction works and projects that are related to the executions of approved development and investment plans. Article 3: In all cases, the act of acquisition of properties of citizens is only reverted to when it is found that no property owned by the state satisfies the purpose for which the act of acquisition is carried out. 9 Lands and Estates where ownership belongs to the state; or that prove to be owned by the state according to documents, deeds, or any other legal justification, or barren lands, forests and jungles if they are not a permanent property of an individual, or coast and their natural protected boundaries and semi-depopulated islands, or lands and estates that are not owned by an individual, and has no inheritors according the principles jurisdictions of the Shari'a Law or, finally, any lands that are considered according to the jurisdictions of the existing laws a State property. 41

42 Types of Land Acquisition Procedures Administrative Acquisition Judicial Acquisition Amicable/ Mutually Agreed Acquisition Temporary Acquisition Dealt with through Articles 4: 5 of Law (1), 1995 Dealt with through Articles 7: 11 of Law (1), 1995 Dealt with through Article 6 of Law (1), 1995 Dealt with through Articles 12: 16 of Law (1), 1995 Figure 2.2: Types of Land Acquisition Procedures and the Regulating Laws Annex 1 of the RPF provides summary of the articles related to the administrative, judicial, amicable and temporary acquisition. Annex 1 also includes more general articles from Law 1 of 1995 on acquisition procedures. 2.5 Institutional Arrangements General Authority for Land Survey and Urban Planning (GALSUP) Subject to law of Land and Real Estates no. 21 of 1995, the General Authority for Land Survey and Urban Planning (GALSUP) was established under the Presidential Decree no. 35 of 2006 which merged the Survey and Notary Public Authority with Planning Department (formerly an affiliate of General Works & Roads) in General Authority for Land Survey and Urban Planning (GALSUP) which became responsible for all land related tasks; planning, preparation, concession/ ownership contracts, notarization and executing expropriation process with assistance from technical experts contracted by the concerned ministry. GALSUP encompassed the following departments: Land Department Planning Department This department is in charge of site inspection of the lands to be issued for sale, presentation of technical reports about the safety and borders of the site prior to reference to authentication department and finalization of all legal and financial measures. It is chaired by an engineer and assisted by engineers who are responsible for preparation of layouts, their reference to the planning department, setting out in land and photogrametry. 42

43 Notary Public Department Control and Inspection Department Registration of the estate property in the owner s name, priorities and facilities. This is one of the important offices for its daily follow-up, control of any violations whether infringement upon state land, building on unplanned land/without licenses. It imposes fines and refers the violators to the prosecution. Under Decree 35 of 2006, GALSUP is responsible for executing expropriation process with assistance from technical experts contracted by the concerned ministry. The Authority will appoint an EC to estimate the property value for those who have title. If public land is occupied without title, a special Technical Committee set-up by the concerned ministry will assess its value The Ministry of Public Works and Highways (MoPWH) Governmental rural land is administered by the Ministry of Public Works and Highways (MoPWH). It also overseas the administration of government-owned tribal land by tribal or village leaders. The office for Public Works and Highways (represented by the Ministry on the governorate level) plays a vital role in issuing building licenses according to the recognized legal procedures and measures. Therefore, building control and citizen s compliance with laws shall have positive impact on building safety, nonviolation and avoidance of demolition in case of works on public roads (i.e. road pavement), city reorganization and its consequent layout changes, owners exposure to certain damages and compensation methods undertaken according to ownership law The Ministry of Finance (MoF) The Department of Public Domain maintains urban land records such as registers of transactions, sales, and purchase leases Local Councils Local Councils represent the executive authority on the level of governorates. They are represented by governors. They play a role in the control of resettlement processes thanks to the executive decrees and instructions of the central organizations and formalization of informal cases. A significant role was played by the executive authorities in organizing the resettlement process (involving IR) in many previous cases in Yemen. Examples of this include a case in Aden Governorate, where measures were adapted for the displaced persons of Caltex shipping village. The role played by the governorate included paying compensation to the affected persons. In Hadramout, the governor also formed high committee headed by Mukalla local council in order to formalize the situations of squatter residents. Local Resettlement Committees (LRC) are considered to be local mechanisms formed by the local authorities in some governorates to deal with resettlement. This mechanism is a 43

44 positive model that encourages community participation in solving the resettlement issues. These committees, to a large extent, comply with the WB OP Additional Mechanisms Under Articles 18 to 20 of the Law of State Lands Real Estates of 1995, the Minister of Justice established a permanent or temporary EC in every governorate (or for each individual case) that comprised of a judge, who takes the role of chairman, an engineer, a representative of the expropriating authority, and the owner(s) of the expropriated real estate or their representative. If there are many owners and they cannot agree on a representative, he/she shall be chosen on a majority basis, taking into account the percentage ownership, or selected by the Chief Justice of the Court of Appeal. When assessing compensation, the EC will therefore take account of: Prevailing real estate values within the project area. The condition of plants, buildings and installations, dates of construction, and the damage to be imposed. Any resulting improvement in the location of, or benefit from, the remaining parts of the real estate, or an increase in its value as a result of partial expropriation. Other factors identified by the EC. If the remaining portion of a partially expropriated estate becomes useless, the court should order the expropriation of the whole estate. In accordance with Article 59 of the Real Estates Law, the EC must recognize the rights of squatters on public land to receive compensation for involuntary settlement. Legal guidelines of compensation differ between the different types of expropriation. For all, compensation payments are to be made prior to commencement of the project works. Local authorities in some governorates like Hadramout and Aden also initiated local resettlement committees (LRCs) which included, inter alia, representatives of the local authorities, owners representatives and some community leaders. The LRCs objective was finding solutions for that resettlement cases both that have been already done as well as the potential. Their assistance was focusing on individuals who have no legal documents (squatters). Efforts were made to compensate those individuals by providing them with access to appropriate sites with basic services. These procedures and efforts had a positive impact on the resettlement process for those individuals. It is worth mentioning that such a local mechanism complies to a large extent with World Bank safeguard policy (OP 04.12) in terms of encouraging local community participation in resettlement. 44

45 2.6 Main Challenges Related to Land Ownership and Institutional Capacities Land ownership issues are complex in Yemen, and are beyond the scope of a project to resolve. Land tenure issues may raise unpredictable legal impediments that can stop a project or may require removal of already constructed infrastructure to the detriment of timely project implementation. The customary law of the Yemeni tribes recognizes the importance of avoiding harm and damage to property. It facilitates actions in order to improve resettlement implementation. In rural areas, customary law entrusts sheikhs with the management of communal lands, primarily used for grazing and firewood collection. The Public Eminent Domain Law (Law 1 of 1995) clearly states that property and/or land expropriation is to take place only when no suitable public land alternative is available and fair compensation should be provided. Article 1166 of the Civil Code no. 19 of 1992 states that no one can be deprived of property except according to various relevant laws and in exchange of fair compensation. However, and despite the fact that Yemen may have legal framework and regulations, practical application is confronted with many challenges including the growing confusion over communal land and privately-owned land which has resulted in lack of clarity and a source of conflict. As previously mentioned, there is trend toward increased private appropriation of communal land. There is also little public confidence in the Land Registry, mainly in the rural areas, where owners depend on local community leader for obtaining documents / deeds, which serve as the base for non-registered land. At the current stage, no unique institution is in charge of the resettlement and compensation issues. It is dealt with through a number of institutions as explained above. GALSUP, MoPWH and the Local Councils are the relevant governmental organizations that have roles and responsibilities related to land acquisition, resettlement and compensations. In many cases, the overlapping responsibilities and the bureaucratic procedures lead to delayed responses to the PAPs in terms of paying their compensations and listening to their grievances. This, in turn, may result in a troubling situation and entering into judicial procedures which are long and complicated. There are usually complaints related to the unfair estimation of compensation for the various losses in assets. This, in turn, has resulted in lack of trust among people who are entitled to compensations from the respective authorities. Within the context of weak governance in Yemen, law enforcement is challenging and the judicial system also exhibits weaknesses due to the absence of exact definitions for the issues related to land acquisition within civil law. This calls for alternative measures to ensure the issues set out and protected by law are addressed. Thus, it is necessary that the RPF take the social context into account and adapt to local conditions. The established local mechanisms in the form of LRCs in certain governorates initiated by the local authorities are specifically tailored to deal with the resettlement problems, 45

46 particularly for people with no formal legal rights 10. These people belong to the category of vulnerable groups who are not sufficiently protected under the ordinary laws. The LRCs formation, their objectives and performance are principally evaluated as successful models that largely comply with the WB policy that encourages local community participation in the resettlement process. This existing mechanism may benefit the in the unlikely case that IR must be undertaken. Moreover, LRCs are seen as replicable models that could be formed in the governorates where they do not exist, such as Hodeidah. 10 Draft RPF,

47 CHAPTER THREE: WORLD BANK SAFEGUARD POLICIES ON INVOLUNTARY RESETTLEMENT (OP 4.12) 3.1 Policy Principles and Objectives Involuntary resettlement (IR) resulting from development projects will, if unmitigated, give rise to difficult economic, social, and environmental risks that may lead to a variety of unacceptable impacts including: The dismantling of production systems; The impoverishment people when their productive assets or income sources are lost; The relocation of displaced persons to environments where their productive skills may be less applicable and the competition for resources greater; The weakening of community institutions and social networks; The dispersion of extended families and kin groups; and, The loss of cultural identity, traditional authority, and the potential for mutual help. Conversely, well-designed and well-implemented resettlement programs may represent good development opportunities. By providing proactive mitigation measures, the policy is used to ensure that Project Affected Persons (PAPs) are not negatively affected by Bank-financed projects. The Bank s involuntary resettlement policy is a road map to be used by practitioners in the identification, preparation, and implementation of Bankfunded programs with a focus on minimizing negative social and economic impacts on individuals and communities. The overall objectives of the Bank s policy on involuntary resettlement are therefore that: Involuntary resettlement should be avoided where feasible, or minimized, exploring all viable alternative project designs; Where it cannot be feasibly avoided, resettlement activities should be conceived and executed as sustainable development programs, providing sufficient investment resources to enable the displaced persons to share the project benefits. Displaced persons should be meaningfully consulted and should have opportunities to participate in planning and implementing resettlement programs and compensation measures; and, Displaced persons should be assisted in improving their livelihoods and standards of living or at least in restoring them, in real terms, to pre-displacement levels or to levels prevailing prior to project implementation, whichever is higher. These objectives cover direct economic and social impacts that both result from Bankassisted projects 11 and are caused by: 11 Where there are adverse indirect social or economic impacts, it is good practice for the borrower to undertake a social assessment and implement measures to minimize and mitigate adverse economic and social impacts, particularly 47

48 The involuntary taking of land 12 resulting in relocation or loss of shelter, loss of or access to productive assets, or loss of sources of income or means of livelihood, whether or not the affected persons must move to another location; or, The involuntary restriction of access to legally designated parks and protected areas resulting in adverse impacts on the livelihoods of the displaced persons. This policy applies to all components of Bank-supported projects that result in involuntary resettlement, regardless of the source of financing. It also applies to other activities resulting in involuntary resettlement, that in the judgment of the Bank, are directly and significantly related to the Bank-assisted projects, necessary to achieve the objectives set forth in the project documents, or carried out or planned to be carried out, contemporaneously with the project. 3.2 Resettlement Instruments In a project triggering OP 4.12, the team must decide which of the three resettlement instruments are appropriate. These instruments are: A Resettlement Policy Framework A Resettlement Action Plan A Process Framework A Resettlement Policy Framework (RPF), as previously mentioned, is prepared when the extent and location of resettlement and/or land acquisition cannot be known at appraisal, (e.g. in projects with multiple components). An RPF should include information on how subsequent RAPs are developed both with regard to substance and process. The RAP also estimates, to the extent feasible, the total population to be displaced and the overall resettlement costs. The Resettlement Action Plan (RAP) or the Abbreviated Resettlement Plan (ARP), depending upon the scale of impacts, is prepared when the details of the project are known at appraisal. A full RAP is required when more than 200 individuals are affected, while an ARP is prepared when less than 200 PAPs are affected by the sub-project. Because this RPF is regarded as a guiding tools that should be used if involuntary resettlement is undertaken, the sections from 3.4 and until the end of chapter three of this RPF will shed light on the process of RAP/ARP preparation and the different resettlement steps within the project cycle. Before this presentation, the following sections provide definitions for some of the main terminologies that are used in the resettlement process. upon poor and vulnerable groups. Other environmental, social, and economic impacts that do not result from land taking may be identified and addressed through environmental assessments and other project reports and instruments. 12 Land includes anything growing on or permanently affixed to land, such as buildings and crops. This policy does not apply to regulations of natural resources on a national or regional level to promote their sustainability, such as watershed management, groundwater management, fisheries management, etc. The policy also does not apply to disputes between private parties in land titling projects, although it is good practice for the borrower to undertake a social assessment and implement measures to mitigate adverse social impacts, especially those affecting poor and vulnerable groups. 48

49 3.3 Key Definitions Taken from OP Project Affected Persons (PAPs) In this policy framework, affected persons are defined as individuals who may be subjected to adverse economic, social, or cultural impacts by the WB s assisted subprojects. According to OP 4.12 of the WB, these impacts may constitute anything from the loss of physical assets such as land, farm land, crops, commercial properties, homes, personal belongings, sources of income, and cultural / historical / religious sites, to nonphysical assets such as social capital and cultural networks and activities. Moreover, adverse impacts also include the loss of access to the physical and non-physical assets and the involuntary restriction of access to legally designated parks and protected areas. These types of impacts are very unlikely to affect people and assets under the and resettlement actions are very unlikely to be triggered. Table 6 below highlights some of the key losses that are covered by the IR policy of the WB. Table 3.1: Type of Losses Covered by OP 4.12 Asset Potential Loses Agricultural land (rented or owned) Urban land (rented, owned, or occupied) Land Commercial / business property (rented, owned, or occupied) Access to land Houses or living quarters (rented or owned) Structures Other physical structures (rented or owned) Income from crops Income from wage earnings Income Income from fishing areas Income from affected business Access to formal employment opportunities Public Schools Public Hospitals Communal 13 Markets Community centers Cemeteries Social capital: networks, activities, relationships Religious shrines Religious and Cultural 14 Worship areas (mosque, church, synagogue) Cultural / historical sites Access to natural resources Environmental Negative environmental impacts resulting from land acquisition or from the sub-project itself 13 The sub-projects should not be permitted to infringe on or damage in any way public cemeteries or private graveyards or graves physical assets. If extremely necessary, such cases shall be subject to the laws of the GoY in this regard. 14 The sub-projects should not be permitted to infringe on or damage in any way religious or cultural physical assets. If extremely necessary, such cases shall be subject to the laws of the GoY in this regard. 49

50 PAPs eligible for support may be classified as one of three groups: Those who have formal, legal rights to land, including customary and traditional rights, recognized under the laws of the country; Those who have no formal legal rights to land at the time the census begins but have a claim to such land or assets 15, provided such claims are recognized under the laws of the country or become recognized through a process identified in the resettlement plan; and, Those who have no recognizable legal right or claim to the land they occupy Specific attention should be paid to the needs of vulnerable groups, as defined and explained in more details below. The average number of PAPs under the is difficult to quantify at this stage. However, as mentioned during the stakeholders consultation for the preparation of the ESIAs, there is a risk of temporary disturbance to the economic activities of the fishermen in Hodeidah Fishing Port, street sellers in Mukalla traffic intersections and sellers in Aden markets, particularly during the construction activities. The ESMP presented mitigation measures that will adequately deal with this risk and will ensure that the negative impact on local people livelihoods is reduced to minimal Vulnerable Groups Vulnerable groups are not explicitly referred to in the Yemeni legislation; however, certain pieces of legislation explain that the State shall guarantee the provision of social security to all citizens in cases of sickness, disability, unemployment, old age or loss of family provider. In particular, the State, in accordance with the law, guarantees the same to the dependents of martyrs (Shuhada) (Article 56 of the Yemeni Constitution). Under the World Bank OP 4.12, there is clear emphasis on the need to give special attention to the rights of vulnerable groups to make sure that they are not excluded from any measures adopted within the overall resettlement actions. Importance is given to a fair treatment of vulnerable group out of a belief in the role played by social identity in determining who has access to which resources. Vulnerable groups are normally at a higher risk of impoverishment. Consideration must be given and assistance provided, where necessary, to those most vulnerable to the adverse impacts of resettlement. Among other categories, vulnerable groups could include the following: Those living below the poverty line, and the landless; Elderly, women and children, indigenous peoples, and ethnic minorities; and, PAPs who may not be protected through national land compensation legislation. 15 Such claims may derive from adverse possession, continued possession of public lands without government action for eviction (that is, with the implicit leave of the government), customary and traditional law and usage, etc. 50

51 The resettlement instruments, namely RAP / ARP include the implementation of a socioeconomic survey. This survey, which will be explained in more details below, is an important tool that helps in identifying the vulnerable groups of relevance to the project s specific context. Through the socio-economic survey, information related to the appropriate types of compensation and assistance for the vulnerable groups is gained. These types of assistance are various and might include, for example, assistance with the compensation payment procedure (e.g., going to the bank with the person to cash the compensation check); assistance with the post payment period to secure the compensation money and reduce risks of misuse/robbery, assistance during moving, providing a vehicle, a driver and assistance at the moving stage, providing materials, labor, or building houses, assistance with health care at critical periods such as the moving and transition periods, etc. Within the context of, certain categories are considered more vulnerable to the adverse impacts on livelihoods. These mainly include: Small scale fishermen in Hodeidah Fishing Port Informal street sellers and vendors in Mukalla Poor and informal market sellers and vendors in Aden Measures to consult these categories and ensure that their interests are protected were proposed by the ESIA. Responsibilities for implementing these measures were also clearly spelled out by the ESMP. A large portion of the responsibility should be taken by the NCU which will work to ensure and facilitate the efficient implementation of the mitigation measures and create communication channels between these categories and the various authorities in charge of implementation, including the Local Councils Eligibility Criteria All PAPs who suffer a complete or partial loss of assets or access to assets shall be eligible for some kind of assistance, according to their legal rights to the land, if it can be proven that they occupied the land before the claim cut-off date 16. The Bank OP 4.12 specifically proposes three general categories for eligibility, as explained under section PAPs, and illustrated in more detail in Table 7 below. 16 The cut-off date is the date the census begins. This date could also be the date the project area was delineated, prior to the census, provided there has been effective public dissemination of information on the area delineated, and systematic and continuous dissemination subsequent to delineation to prevent further population influx. It is important to note that persons who encroach onto the area after the cut-off date are not entitled to compensation or any other form of resettlement assistance. 51

52 Table 3.2: Criteria for Eligibility (OP 4.12) Displacement Category Individuals who have formal legal rights to land (including customary and traditional rights recognized under the laws of Yemen) Individuals who do not have formal legal rights to land, but have a claim to such land or assets (provided that such claims are recognized under Yemeni laws or become recognized through a process identified in the resettlement plan) Entitlement Compensation for loss in land and assets at full replacement cost. In case of physical relocation, provide assistance during relocation (i.e. moving allowances) and residential housing and / or agricultural sites with productive and location advantages equivalent to the lost sites. Support after displacement, until livelihoods and standards of living are restored to pre-displacement levels. Development assistance in addition to compensation measures (i.e. land preparation, credit facilities, training, job opportunities). Compensation for loss in land and assets at full replacement cost. In case of physical relocation, provide assistance during relocation (i.e. moving allowances) and residential housing and / or agricultural sites with productive and locational advantages equivalent to the lost sites. Support after displacement, until livelihoods and standards of living are restored to pre-displacement levels. Development assistance in addition to compensation measures (i.e. land preparation, credit facilities, training, job opportunities). Individuals who have no recognizable legal right or claim to the land they are occupying (i.e. squatter settlements, disputed ownership). Source: WB OP 4.12 Resettlement assistance as appropriate (i.e. land, assets, cash, employment, etc.). A project triggering OP 4.12 is required to develop a procedure satisfactory to the Bank for establishing the criteria by which PAPs will be deemed eligible for compensation and other resettlement assistance. The procedure includes provisions for meaningful consultations with PAPs and PAP-communities, local authorities and relevant NGOs, and for the development of grievance mechanisms Compensations and Methods for Assets Valuation Assets Valuation The valuation of losses in physical assets will be carried out by assessing the market value of the assets, if known, and estimating the replacement cost. Replacement cost is simply calculated as the cost of replacing the lost assets plus any transaction costs 52

53 associated with bringing the asset to pre-displacement value. Replacement cost will differ depending on the type of asset, as illustrated in Table 8 below. Table 3.3: Replacement Cost for Tangible Assets Asset Agricultural Land Urban Land Houses / Other Structures Source: WB OP 4.12 Replacement Cost Equals the pre-project or pre-displacement, whichever is higher, market value of land of equal productive potential or use located in the vicinity of the affected land, plus the cost of preparing the land to levels similar to those of the affected land, plus the cost of any registration and transfer taxes. Equals the pre-displacement market value of land of equal size and use, with similar or improved public infrastructure facilities and services and located in the vicinity of the affected land, plus the cost of any registration and transfer taxes. Equals the market cost of the materials to build a replacement structure with an area and quality similar to or better than those of the affected structure, or to repair a partially affected structure, plus the cost of transporting building materials to the construction site, plus the cost of any labor and contractors fees, plus the cost of any registration and transfer taxes. For intangible loses that can not easily be valued in monetary terms (i.e. access to employment opportunities, public services, natural resources, social capital), the subprojects should attempt to establish access to equivalent resources and earning opportunities that are acceptable to the PAPs Asset Valuation Method Law no. 21 of 1995 concerning State Land and Real Estate defines the formation of the Estimation Committee (EC) to be in charge of estimating the value of compensation. The committee should consist of a judge, an engineer, representative of the expropriated entity, and the owner of the expropriated real estate. The law stipulates that the EC should look at number of plantations and establishments. If there was more than one owner and they did not agree on one representative, then the majority decides. Otherwise the president shall appoint an expert as a representative of the owner. Decisions of the EC are based on the majority vote Compensations Fair compensation is a constitutional condition for lawful expropriation according to Article 1166 of the Civil Code no. 19 of 1992 which stated that no one is to be deprived of his/her property except in accordance with the law and in exchange for fair compensation. Compensation will be provided to all individuals whose assets or access to assets is severely affected or damaged, as a consequence of land acquisition or any other activities 53

54 undertaken by the sub-projects. The compensation for the loss of physical and nonphysical assets will vary depending on the type of loss, severity of the loss, and eligibility of the APs. Compensation may come in the form of cash compensation, in-kind compensation, and/or assistance. All PAPs will be entitled to monetary compensation at replacement cost, at market value (at the entitlement cut-off date) for affected tangible assets. Another option may be inkind compensation where the affected assets would be replaced with an asset of similar size, value, and quality. The decision as to which type of compensation is used should be jointly agreed upon between the NCU and the PAPs and shall be subject to the availability of replaceable assets. Moreover, development and resettlement transitional assistance needed to restore the livelihood and standard of living of PAPs under the subproject to pre-project levels shall also be part of the compensation component of any resettlement plan (i.e. short-term jobs, subsistence support, moving allowance, salary maintenance, food assistance, etc.). It should be noted here that compensation for losses in communal property shall only be in-kind for the community as a whole, and shall take the form of reconstruction of the affected or damaged facility (i.e. public school buildings, markets, etc.) to - at least - the same standard prior to the project s implementation. As part of the resettlement process, a resettlement matrix identifies the expected negative impacts from the sub-project, the eligible persons for compensation, and the compensation policy that is to be applied. Since is still in the appraisal stage, and plenty of the detailed implementation activities have not be defined, the attached entitlements matrix in Annex 2 may serve as a generic tool for identifying the possible losses arising from the expected sub-projects and the respective entitlement benefits of the PAPs. Measures should be considered to ensure that PAPs are: Informed about their options and rights; Consulted on, offered choices among, and provided with technically and economically feasible resettlement alternatives; and, Provided with prompt and effective compensation at full replacement cost for losses of assets attributable directly to the project. If the impacts include physical relocation, the project includes measures to ensure that the PAPs are: Provided assistance, such as moving allowances, during relocation; and, Provided with residential housing, or housing sites, or, as required, agricultural sites for which a combination of productive potential, location advantages, and other factors are at least equivalent to the advantages of the old site. Where necessary to achieve the objectives of this policy, the RAP/ARP also includes measures to ensure that PAPs are: Offered support after displacement, for a transition period, based on a reasonable estimate of the time needed to restore their livelihood and standards of living; Provided with development assistance in addition to compensation measures; 54

55 Provided with land preparation, credit facilities, training, or job opportunities 3.4 Introduction to RAP/ARP The RAP/ARP is the most important resettlement instrument that will be applied should IR be undertaken. RAP/ARP should assess the number of PAPs, propose alternative locations for the sub-projects if possible, identify the eligibility criteria, include provisions for compensation and assistance, and address the means by which the project monitoring and evaluation will take place to ensure that the PAPs receive their compensation and that their grievances are heard and addressed. The mitigation measures and compensation policies proposed in the RAP shall be disclosed to the PAPs for feedback and comments. Once the project activities under the have been identified, they should be screened to determine whether or not they will necessitate the involuntary resettlement of people within the determined project area. Most likely, no need for IR will arise along the cycle, consequently the whole process of RAP/ARP will not be applicable. However, for the purpose of this RPF, the following section will present the main steps for the preparation of the RAP/ARP. According to Annex A of the WB s OP 4.12 on IR, the sub-project RAP should the following design criteria: Box 3.1: Design Criteria for RAP A description of the sub-project and a discussion of how the displaced will maintain or upgrade their living standards Identification of potential impacts Objectives of RAP Site selection for new settlement, along with relocation risks and reconstruction; A census survey of displaced persons and valuation of assets Relevant findings of the socio-economic study Legal framework Institutional framework Eligibility criteria and eligible PAPs Valuation and compensation for losses Services offered after relocation (e.g. employment, electricity, etc.) based on an assessment of their needs Resettlement measures Site selection, site preparation, relocation, provision of services (facilitation of relocation) Housing, infrastructure, and social services Environmental protection and management Community participation Integration with host populations Grievance procedures Organizational responsibilities and timetable (what institution is responsible for 55

56 implementation of the relocation) Implementation schedule Costs and budget Monitoring implementation and outcomes Evaluation The same reference also highlighted the key minimum elements that an abbreviated plan (ARP) should covers. This is listed in Box 2 below. Box 3.2: Minimum Elements to be included in ARP Project activities requiring acquisition of land or other assets with required details such as sketch maps A census survey of displaced persons and valuation of assets Officially certified enumeration of the persons affected and the types of impact Entitlements, description of compensation and other resettlement assistance to be provided and the bases of compensation rates Consultations with displaced people about acceptable alternatives Institutional responsibility for implementation and procedures for grievance redress Time table for implementation of the action Arrangements for monitoring and implementation A timetable and budget RAP/ARP and the Project Cycle PRA/ARP during Project Identification Project Screening During the screening phase, cadastral information might involve gathering information about land ownership, structures and uses of the land that would be directly affected by the works, either temporarily or permanently. This information shall be verified by a qualified consultant who shall provide written and visual records and enumerate all economic, residential or other ownerships and uses of the land that would be affected, along with an estimate of the number of people affected by type of impact. This same phase should also include conducting introductory meetings with communities, including PAPs and vulnerable groups, in order to inform them about the project and to disseminate the prepared RPF and inform people about their rights and entitlements Preparation of the Socio-economic Survey Following the identification of the project component that may necessitate involuntary resettlement, the next step would be prepare a socio-economic study, in which baseline data within the project s target areas is collected. The study should be carried out by a 56

57 social and resettlement consultant assisted by the local community leaders. It should examine the nature of the impacts; the socio-economic and cultural setting, local organizations, and social risks, total land holdings, affected assets as well as the indicators that would ensure that the project affected people, at minimum, regain their former quality of life or, preferably, are enabled to improve it. The information should be collected from PAPs and related household members or dependents. This information will be put in writing and used in the preparation of the RAP and in determining the appropriate compensation and assistance for each affected individual / household. Box 3 below shows the objectives of socio-economic survey. Box 3. 3: The Socio-economic Survey Objectives Introduce the project to the PAPs Collect census data to identify PAPs on the individual and household levels Description of the affected households including information about livelihoods and production and labor systems, standards of living and an analysis of their legal rights and informal entitlements and any issues of potential conflict Collect census data to identify vulnerable and severely affected PAPs Collect census data on the overall socio-economic environment of the affected communities Statement of the magnitude of the expected loss (total or partial) of assets and the extent of physical or economic displacement Identify stakeholders Identify impacts of the sub-project on the livelihoods of the PAP (i.e. property, structures, income, etc.) Identify any concerns or worries the PAPs may have Identify the resettlement preferences of the PAPs Preparation of RAP/ARP For projects that will trigger IR and will require the preparation of the RAP/ARP, their preparation should be considered prior to the appraisal phase. The preparation of the RAP/ARP should consider the key design criteria previously presented in Boxes 1 and 2 above RAP/ARP during Project Appraisal The prepared RAP/ARP needs to be reviewed by an appraisal committee from the project team as well as other relevant local or central authorities and then sent for final approval by the Bank. The RAP/ARP will include the proposed mitigation measures and this will help in making a decision as to whether or not the project shall be implemented. The prepared RAP/ARP shall take into consideration the communities concerns and worries raised in the process of putting together the socio-economic survey. The WB should clear the RAP/ARP and approve it for implementation. 57

58 RAP/ARP during Project Implementation 1- Prior to the project implementation, PAPs that have been determined to be eligible for compensation should be compensated in accordance with the approved project s RAP/ARP. This includes providing the PAPs with cash compensation, preparing the resettlement sites with the adequate structures and facilities, and / or providing different development and transitional assistance measures to assist the displaced persons. 2- A cut off date should be determined by one month from the disclosure of the census and contradictory verifications of the census by the PAPs. Persons who encroach onto the area after the cut-off date are not entitled to compensation or any other form of resettlement assistance. Affected individuals, households, and communities, who have been identified earlier under the socio-economic survey, will be consulted about their compensation preferences. 3- The PAPs will be formally informed through written or verbal notification (in case some of the PAPs are illiterate) delivered in the presence of at least one public official. The NCU as well as any local resettlement mechanism that might be initiated (e.g. Local Resettlement Committee) will arrange meetings with the affected individuals / households to document the lands acquired by the sub-project throughout the implementation period and discuss the compensation process. 4- The PAP will be required to sign a contract detailing the acquired land plots and / or partially or completely affected structures and the corresponding types of compensation (i.e. cash or in-kind) that have been agreed upon. The signature of the compensation contracts as well as the actual payments and in-kind transfers shall be made in the presence of at least one public official from the city authorities. The contracts may also include contracts on possible transitional or developmental assistance and income restoration measures that will be given to the PAPs including, provision of skills training, access to credit, and activities related job opportunities. 5- A grievance mechanism should be devised in order for the PAPs to be able to voice their concerns, complaints, or dissatisfaction with any part of the compensation process and seek redress. The RPF sets the outline of the grievance mechanism that should be agreed upon and used by the project in case RAP/ARP is triggered. Simply, complaints can be made concerning the: Non-fulfillment of contracts, Compensation entitlement, Types and levels of compensation, Compensation policy, acquisition / destruction of land or assets, Resettlement, or development or transitional assistance. The grievances should be addressed to the previously proposed local mechanisms (LRC) or special committees might be formed as an independent mechanism for the purpose of receiving and responding to grievance in order to ensure that PAPs grievances are treated fairly and timely. The committee should collect and review the grievances (in coordination with the representative local public official) monthly and the NCU should also play a role in facilitating the response to these grievances. Particular attention will be paid to vulnerable groups. It is also very important for the committees to ensure proper documentation for all grievances and their resolution within timely manner for the 58

59 monitoring process. Capacity building of the local committees is essential in order to enable them to efficiently implement the different activities under the RAP/ARP (this will be mentioned in more details below). World Bank OP emphasizes that the PAPs should be heard. Therefore, they should be fairly and fully represented in an appropriate way. It is recommended to minimize the cases that are taken to the court in order to avoid long and tiring litigation. However, if the grievances or other disputes cannot be resolved through administrative action, the PAPs can initiate legal proceedings in accordance with provincial and national law (Article 51 of the Yemeni Constitution 17 ) and have recourse to the Appellate Courts and the Supreme Court but this should be maintained as a last option. The grievance redress approaches could be divided into proactive and reactive approaches as illustrated under Figure 3 below. Grievance Redress Approaches Proactive approach a) Widespread disclosure of project background b) Clarification of criteria for eligibility for assistance under the RPF framework c) Establishing a committee of honorable and respected persons (community leaders, Local Councils, religious persons, etc.), to review any grievances that may result from the project (e.g LRC) Reactive approach, a) Settle disputes amicably b) Deal with disputes to the extent possible at the local level using local mechanisms, particularly those that insure vulnerable groups get fair treatment c) If disputes cannot be solved at the local level, the NCU and other relevant organizations should review specific complaints. Highly skilled persons in communication and dispute resolution should review PAPs grievances Figure 3.1: Main Approaches for the Grievance Redress RAP/ARP during Monitoring and Evaluation (M&E) Monitoring and Evaluation (M&E) are key components of the RAP/ARP and have the following objectives: Monitoring of specific situations or difficulties arising from implementation and of the compliance of implementation with objectives and methods set out in the RAP/ARP; 17 A citizen may resort to the court for the protection of his right and legitimate interests. He/she shall be entitled to lodge complaints, criticisms, and suggestions to state entities and organizations in a direct or indirect manner. 59

60 To verify that project activities have been effectively completed with respect to quantity, quality and timeliness; Evaluation of medium and long-term impacts of resettlement on affected households livelihood, environment, local capacities and economic development. In carrying out all activities related to monitoring, evaluation and supervision, consideration will be given to the vulnerability issues. The different vulnerable groups referred to above should be consulted during the monitoring process in order to insure that their concerns are handled fairly. Regular monitoring of the RAP implementation will be conducted internally, by the NCU, as well as externally by an independent monitoring agency, hired by the WB Internal Monitoring Internal monitoring of the implementation of the project RAPs will be the responsibility of the NCU which includes a staff member dedicated to monitoring results. This should be done in full collaboration with locally devised resettlement mechanisms. The NCU will oversee the progress in resettlement preparation and implementation through regular progress reports. The NCU should collect information every month from the different resettlement committees. A database of resettlement monitoring information should be established and updated monthly. Quarterly internal monitoring reports should be prepared by NCU and submitted to the WB. Quarter reports shall include information about the various monitoring indicators as presented in Box 4 below. A wide range of tools could serve for monitoring purposes. The previously mentioned socio-economic survey can serve as a participatory tool for defining monitoring indicators. Moreover, periodic Participatory Rapid Appraisals (PRA) will allow consulting with the various stakeholders (local government, Local Committees, NGOs, community leaders and PAPs). They will involve obtaining information, identifying problems and finding solutions through participatory means, which may include key informant interviews, focus group discussions (FGD), community public meetings, structured direct field observation, and in-depth case studies of problems or success stories. Box 3.4: Guidelines for the Monitoring Indicators The main indicators that will be monitored regularly are the following: a) Checking that the screening activities that have been carried out in order to determine the need for the preparation of a RAP b) Payment of compensation to PAPs in various categories, according to the compensation policy described in the RAP; with special focus on the vulnerable groups and no discrimination according to gender, tribal backgrounds or any other factor c) Delivery of technical assistance, relocation, payment of subsistence and moving allowances d) Delivery of income restoration and social support entitlements e) Public information dissemination and consultation procedures 60

61 f) Adherence to grievance procedures and outstanding issues requiring management s attention and equality of access g) Attention given to the priorities of PAPs regarding the options offered h) Co-ordination and completion of resettlement activities and award of civil works contracts External Monitoring In accordance with WB requirements for consultant procurement, the NCU should hire an organization for the independent monitoring and evaluation of RAP/ARP implementation. The organization should be specialized in social sciences and experienced in resettlement monitoring. The organization should start its work as soon as the updated RAP has been approved. The rationale behind hiring an external institution is to ensure that the overall objective of the resettlement plan is achieved in an equitable and transparent manner. In addition to reviewing the issues covered by the internal monitoring progress report, the external agency shall also evaluate and assess: The competence and effectiveness of the project implementing agencies (NCU) Adequacy of compensation, development and transitional assistance techniques provided for the PAPs Ability to reach the most vulnerable PAPs Consultation and public disclosure of the RAP Effectiveness of the grievance redresses mechanism Evaluation, however, is intended to insure that policies (both Yemeni and the WB s) have been adhered to and provide the feedback needed for adjusting strategic directions. Evaluation, thus, has the following objectives: General assessment of the compliance of resettlement activities with the objectives and methods as set out in this RPF Assessment of the compliance of resettlement activities with the laws, regulations and safeguard policies cited above Assessment of resettlement and relocation procedures as they have been implemented Evaluation of the impact resettlement and relocation has on incomes and standard of living, with the focus on the poor and the most vulnerable Identification of actions to improve the positive impacts of the program and mitigate its possible negative impacts While carrying out the evaluation process, the project will utilize: This RPF as the guiding instrument Yemeni laws and regulations as described in a preceding chapter The World Bank s OP 4.12 on Involuntary Resettlement 61

62 The evaluation of resettlement activities will be part of general assessment and review activities undertaken for the as a whole. From the presentation above, Figure 3.2 below visualizes the different steps related to the RAP/ARP along the project cycle. Internal monitoring for Resettlement activities and RAP/ARP Process External monitoring for Resettlement activities and RAP/ARP Process Screening (land surveying and planning) Socio-economic survey Prepare RAP/ARP (4) Project Monitoring & Evaluation (1) Project Identification / Project Cycle (3) Project Implementation (2) Project Appraisal / Approval Form and build the capacities of Local Committees Sign compensation contracts Pay compensations Figure 3.2: RAP/ARP along the Project Establish grievance mechanism Review RAP/ARP Approve RAP/ARP 3.5 Sources of Funding for the RPF/ARP As soon as the activities triggering IR have been identified and approved by relevant agencies and the WB, realistic cost estimates shall be calculated based on the data collected from the socio-economic survey on the estimated number of PAPs that are likely to be affected by the sub-projects and the quantity and types of affected assets. The consultant in charge of the RAP/ ARP preparation shall consider that the budget should 62

63 include all of the anticipated impacts under the sub-project and calculate the cost (compensation, administrative costs and monitoring, support assistance, Etc.) according to actual replacement costs (at market value). The NCU, supported by the WB, should be responsible for any compensation for land acquisition as well as any capacity building activities done as part of the RAP/ARP process. Under the, it is not expected that RAP/ARP for any of the project components will be needed. However, some contractual procedures have been proposed by the ESMP in order to minimize any potential negative impacts on the income and livelihoods of the local communities in the three cities. It is expected that these procedures will be fully funded by the contractor. Other complementary mitigation measures like carrying out a local street seller/shops survey in Mukalla and carrying out regular consultation meetings with the fishermen and other port users in Hodeidah have been considered with budget allocations under the ESMP budget. 3.6 Institutional Responsibilities under the RAP/ARP The World Bank In meeting the objectives of the Bank s policy on Involuntary Resettlement, the Bank may at a Borrower s request support concerned entities by providing: Assistance to assess and strengthen resettlement policies, strategies, legal frameworks, and specific plans at a country, region or sector level Financing for technical assistance to strengthen the capacities of agencies responsible for resettlement, or of affected people to participate more effectively in resettlement operations Financing for technical assistance for developing resettlement policies, strategies, and specific plans, and for implementation, monitoring, and evaluation of resettlement activities Financing for the investment cost of resettlement Along the RAP/ARP cycle, WB is also responsible for: Screening findings and advise on the need for RAP/ARP and whether or not other remedial actions need to be taken Approving the developed RAP/ARP prior to the execution of sub-projects or expropriation activities Contracting the external monitoring consultant Reviewing monitoring reports and send feedback to the NCU The National Coordination Unit (NCU) Screen the project activities to check if any activity will result in land acquisition and involuntary resettlement Hire resettlement consultant for the preparation of the RAP/ ARP Prepare the ToRs for the LRC Follow up the formation of LRC and coordinate with the local authorities 63

64 Ensure the interest of PAPs, particularly the vulnerable groups, are well addressed by the RAP/ARP Send RAP/ARP for WB approval Facilitate the different consultation activities Participate in responding to the grievance and work towards solving related issues Oversee/Monitor the progress in resettlement preparation and implementation through reviewing regular progress reports from the LRC Report regularly to the WB on resettlement activities (RAP/ ARP implementation) Keep records, documentation and ensure data compilation in a way that facilities the task of the external monitoring the process as part of the monitoring activities (e.g. grievance process and action taken) Participate in preparing the external monitoring consultant ToR according to the WB standards Build the capacities of the local resettlement mechanisms including LRC on PAPs consultation techniques Review the external monitoring report Local Authorities (Local Councils) In the three targeted cities, the Local Councils are the key governmental authority of relevance to the execution of the resettlement program. Their potential responsibility in the RAP/ARP execution should involve: Coordinating with other governmental organizations of relevance to the resettlement program (GALSUP, MoPWH) 18 Following up on the resettlement process Following up on the imbursement of compensation and the provision of the development assistance Insuring the concerns are consulted and their interests are considered Through participation in the LRC, playing a role in facilitating responsiveness to the PAPs grievances Non Governmental Organizations (NGOs) NGOs are key players that should be involved to ensure the efficiency of the resettlement activities and that they are designed and implemented in a manner which is sensitive to the interests of the poor and vulnerable groups. In addition to the necessity of NGOs representation in the proposed LRC, NGOs are also recommended to participate in: Coordination for the provision of supporting facilities/loans/ employment/capacity building programs, etc. based on the PAPs needs Facilitation of access to the most vulnerable groups and ensuring fair representation of different social subgroups (e.g. women, youth, children, etc.) Raising funds and mobilizing resources to target PAPs as a method for improving their living conditions post resettlement. 18 Representatives from these organizations as well as any other organizations of relevance should be represented in the LRC. 64

65 3.6.5 External Consultant (s) The input of external consultant will be needed along the in case IR is triggered and a need arises for the preparation of RAP/ARP. Consultant will be needed to assist in the following issues: Resettlement and Capacity Building Assist NCU in the preparation of the RAP/ARP, particularly designing and applying the socio-economic survey Prepare training materials and provide the training to LRC member on legislative issues related to resettlement (particularly OP 4.12) as well as methods for engaging and consulting stakeholders (particularly PAPs) and monitoring techniques, and evaluate the training outcome Monitoring and Evaluation (M&E) Verify that project activities have been effectively completed with respect to quantity, quality and timeliness Assess whether and how well these activities are achieving the stated goals and purpose of the project Design monitoring tools Carry out all the field surveys, investigation activities and stakeholders consultations as part of the monitoring process Review prepared monthly and quarterly monitoring reports and other secondary data 65

66 CHAPTER FOUR: GAPS BETWEEN YEMEN LEGISLATION AND THE WORLD BANK OP Discrepancies between Yemeni Laws and OP 4.12 Many of the Yemeni pieces of legislation comply with the World Bank safeguard policy OP However, some key discrepancies have been identified during the legislation review and the consultation with stakeholders Calculation and Timing of Compensation Both Yemeni Laws and the World Bank agree on the need for compensation for any land and structures affected by project activities. Under Yemeni laws, the value of the affected land structures is assessed by the Estimation Committee (EC) and payment prior to displacement in case compensation is alternative land. OP 4.12 clearly provides methods to be used to calculate land and/or structure compensation rates, and requires evidence these rates are consistent with the policy principle of full replacement value (please refer to Table 3.2 above). OP 4.12 also states that payment should be paid prior to displacement. The gap in the Yemeni legislation mainly relates to the practical application of the law. Previous experience suggests valuation is often substantially below full market replacement value because no real valuation is done. There is a lack of experience and the value of equivalent real estate is not properly identified. Recommended Measures for Bridging the Gap: Build the capacity of the concerned authority on Bank s OP 4.12 with the focus on calculation of compensation at full replacement cost For a longer term recommendation, which might be out of the direct scope of this RPF, longer term strategy and plans to address the weak implementation mechanisms of the Yemeni organizations should be considered Payment should be made prior to displacement in all cases Definition of Affected Persons (PAPs) The Yemeni legislation (according to Law no. 21 of 1995) include two main categories of affected groups, namely legal owners and squatters. OP 4.12, however, includes all affected people owners/squatters, regardless of the size of the damage (housing/economic activity) and its extent. Recommended Measures for Bridging the Gap: All affected people should be eligible for full compensation. Any PAPs from housing dispossession /economic activity shall be entitled to compensation as stated by the OP Public Participation, Consultation The Yemeni Constitution, Election Law and Local Administration Law each recognise the importance of community participation, but no specific procedures or guidelines on the practical application of community participation are given. According to Law no. 21 of 1995, PAPs should be informed about the resettlement decisions through the 66

67 compensation committees that negotiate with them and gather information about asset inventory, number of family members, etc. On the other hand, and according to OP 4.12, displaced persons and their communities are provided timely and relevant information, consulted on resettlement options, and offered opportunities to participate in planning, implementing, and monitoring resettlement. Community participation, thus, is perceived as a key ingredient in the process of the resettlement. Recommended Measures for Bridging the Gap: Through the LRC, which includes the local council members and lanes natural leaders, PAPs should be consulted and participate in selecting the preferred resettlement alternatives that suit them. Efforts should be made to insure sharing information on the resettlement process and the options for compensation and consulting APs during the different stages of the resettlement process (planning, implementation, monitoring, etc.) as stated in OP The NCU should play a role in facilitating the consultation activities and in ensuring that PAPs preferred options are addressed through employing participatory planning and decision making to be applied in resettlement options and compensation. NCU also should work to insure timely transparent information sharing, particularly those related to the cut-off date and paying compensations Grievance Mechanisms Under Article 51 of the Constitution, any citizen may resort to the court for the protection of his right and legitimate interests, and is entitled to lodge complaints, criticisms, and suggestions to state entities and organizations, directly or indirectly. The Yemeni law provides for the right of grievance before the Estimation Committee/courts. To address grievances, PAPs can first seek satisfaction through local customary practices for resolving conflict. They can then initiate legal proceedings in accordance with provincial national law. However, there is need for proper and practical mechanism to address PAP grievances. According to the OP 4.12, appropriate and accessible grievance mechanisms should be established in order to insure PAPs clearly spell out grievances and that actions are taken to respond to these grievances. Recommended Measures for Bridging the Gap: Gaps between the Yemeni law and World Bank requirements on consultation and grievance mechanisms could be addressed by: Proper and accessible mechanisms to be established with initiation from the NCU and with full cooperation from various stakeholders, namely those represented in the LRC. Grievances should be heard prior to resettlement Vulnerable groups Vulnerable groups are inexistent in the Yemeni legislations. According to the Yemeni Constitution, all people are equal in front of the law and no exceptions are considered. According to the OP 4.12, the interests of the vulnerable groups should be considered especially for those below the poverty line, the landless, the elderly, women, children, etc. 67

68 Recommended Measures for Bridging the Gap: The NCU should pay great attention to these groups particularly the poorest and those with unsecured sources of income. NCU should lead the efforts to attract the attention of various concerned stakeholders including Local Councils and NGOs. Vulnerable groups should be consulted meaningfully throughout the project cycle and assisted in improving their socio-economic condition Resettlement assistance According to Yemeni Legislation, the resettlement compensation is only limited to the compensation amount valuated by the ad hoc committee, in addition to providing all the needed services. On the other hand, the WB OP 4.12, affected people are to be offered support after displacement, for a transition period. Recommended Measures for Bridging the Gap: In addition to the paid compensation based on the decision of EC and upon the preferred alternatives for the PAP, resettlement assistance during the transition period should also be considered as well as the provision of all services for resettlement area Rights of Squatters Yemeni law recognizes the rights of squatters on public land to receive compensation in the event of involuntary settlement, but enforcement is weak. Recommended Measures for Bridging the Gap: Build understanding and capacity to ensure rights of the squatters are addressed properly. Include the provision of clear guidance to the EC on how compensation standards are set and applied. Raise the public awareness of squatters and the public on their rights and responsibilities to demand them from the State as appropriate within laws and regulations. 4.2 Capacity Building Needs Capacity building is seen as a major and important guarantee for the efficient implementation of the RAP/ARP and in order to ensure efficient implementation for the measures that aim to bridge the identified gaps between the Yemeni laws and OP As mentioned above, many institutions already have a stake in the process (e.g. the GALSUP, MoPWH, Local Councils). Other mechanisms/community models (e.g. LRC) already exist or will be introduced /encouraged to participate in order to implement the RAP/ARP (LRCs, NGOs, Cooperatives, etc.) in the relevant cities, in case the RPF is triggered. A comprehensive institutional assessment should be conducted in order to identify the key challenges that they face and the capacity gaps that they need to fill in order to implement the RAP/ARP. Under the, the National Coordination Unit (NCU) will remain located in Aden. All fiduciary safeguarding, monitoring and reporting will remain centralized in the NCU. 68

69 Branches of the NCU are located in Hodeidah and Mukalla to coordinate the implementation of sub-projects in these cities with local government and beneficiaries. The NCU will play a major role in the implementation of the RAP/ARP guided by this RPF, in case IR is triggered. Currently the NCU experience related to the involuntary resettlement is still limited, capacity building on relevant issues related to the execution of the RAP/ARP is also very important in case IR is undertaken. Tailored capacity building programs should also target the NCU staff, particularly the Social Development officer who should be the primary target with the capacity building. M&E staff within the NCU should also be included in the capacity building program. The capacity building needs assessment is expected to show findings which are not merely linked to the need for training on the different subjects. A need for institutional support might emerge. The overlapping responsibilities and a lack of coordination channels among the organizations of relevance to resettlement and compensation are key issues of priority. Although this is out of the direct scope of the, unless these issues are addressed, land management and resettlement programs will remain a big problem in Yemen. As part of the proposed capacity building program, training on different relevant subjects is also essential to enable the various organizations/mechanisms to implement the RAP/ARP. It is recommended for the training programs to include two main large modules: The first is related to the legal part of the resettlement issue The second should be linked to community participation which is an essential ingredient for the RAP/ARP that is prepared under OP 4.12 (as shown in Figure 4.1 below) 69

70 Ensure PAPs views and concerns are concerned Participate in evaluating the RAP/ARP process by being consulted PAPs participate in the introductory meetings PAPs are informed about the project and RPF PAPs are consulted during the socio-economic survey (4) Project Monitoring & Evaluation (1) Project Identification / Preparation Project Cycle (3) Project Implementation (2) Project Appraisal / Approval PAPs will be part of the compensation contracts PAPs will be given the chance to express grievance and redress Communities (PAPs) are informed about the approved RAP/ARP Figure 4.1 PAPs Consultation and Participation in the RAP/ARP along the Project Cycle Although both the modules are seen to be relevant to different institutions, it is recommended for the LRCs, Local Councils, NGOs or those who might be engaged in the resettlement process to focus in-depth on the second module as it will be very linked to their practical application. 70

71 The following topics were identified for training of the concerned organizations: RPF-related issues Yemeni legislations related to resettlement WB OP 4.12 (PAPs, eligibility criteria, assets valuation, compensation, entitlements) The gaps between Yemeni legislation and WB safeguard policy and activities to fill in those gaps Methods for engaging and consulting stakeholders (particularly PAPs) Community participation tools (PRAs tools, Social Assessment surveys, etc.) Developing social mitigation measures Communication skills Dispute resolution Community mobilization Awareness raising techniques Monitoring and evaluation (tools and techniques) IT training (word processing, data analysis and internet) Documentation and report writing 71

72 REFERENCES Port Cities Development Program II, Resettlement Policy Framework (RPF), 2008 (Draft) Port Cities Development Program II, Environmental and Social Impact Assessment, Hodeidah Projects, EcoConServ, November 2009 (Draft) Port Cities Development Program II, Environmental and Social Impact Assessment, Mukalla Projects, EcoConServ, November 2009 (Draft) Port Cities Development Program II, Project Appraisal Document (PAD), World Bank, February 2009 (Draft) Resettlement Policy Framework for the Integrated Sanitation and Sewage Infrastructure Project (ISSIP), EcoConServ, October, 2007 Resettlement Policy Framework (RPF), Assistance for Sector-wide Environmental and Social Assessment, Consulting Engineering Services, India, October, 2008 (Draft) Resettlement Policy Framework (RPF) for the Rural Energy Access Project (REAP), EcoConServ, Yemen, March 2009 Taiz Municipal Development and Flood Protection Project, Draft RPF, December 2009 Yemen Poverty Assessment, the World Bank,

73 Annex 1: Types of Acquisition and the Regulating Articles of Law no. 1 of 1995 on Public Eminent Domain Law 1- Administrative Acquisition Article 4 of Law no. 1 of 1995 states that administrative acquisition of real estate owned by the government entities, authorities, institutions, corporations, and public companies is carried out in accordance with the following: Agreement takes place between the two parties on the issue of acquisition where the question of compensation gets settled. Any disagreement between the two parties with respect to acquisition is settled by the respective minister if the parties serve under the same ministry. The Council of Ministers will settle any disagreement between the two parties if both happen to serve under different ministries. The ruling of the minister or the Council of Ministers, whatever the case may be, shall be final and binding. If two parties do not agree on the question of compensation, then each of them has the option of applying to the Estimation Committee (EC), primarily to register in the estate register, to provide an estimate of the compensation as provided for in this law, and whose ruling shall be final and binding for the two parties. The agreement of two parties or the decision of the EC shall constitute the basis for registering in the real estate register after presenting documented proof that the acquisitioning party has received the compensation amount and that this amount has been deposited into the department of the real estate registry or the treasury of the primary court in which domain the real estate is located, unless otherwise a different agreement exists. Article 5 of the law referred to above states that these provisions do not apply to real estate which an endowment, since no acquisition may take place except with a court ruling in accordance with the endowment law. 2- Judicial Acquisition Articles 7 to 11 of the law above defines the Judicial Acquisition procedure that is either directly or indirectly related to the project: a) The party that possesses the legal right to carry out acquisitions must submit an application for acquisition to the court of appeal in the governorate in which the real estate is located. The application should consist of a description of the project that will be of common benefit and for which the real estate will be acquisitioned, a list the registration of names of real owners of the real estate together with their addresses, location of the real estate, a map showing the area of land that will required to be acquisitioned, and a statement describing the underlying motives for acquisition along with all relevant information. b) The court must set a date to look into the issue of acquisition during a period of time no later than fifteen days from the date of the application there. The court would then notify the Department of the Real Estate Registry to freeze all actions concerning the real estate. c) The court must then check the validity of the statements describing common benefit, and ascertain that all the conditions do satisfy the ultimate objective, and that the act of acquisition does not cause any undue unjust. In the event the court does not agree with the application for acquisition, it would then notify the Department of the Real Estate Registry to lift the freeze status of this real estate. 73

74 d) The court assigns the task of estimating the compensation money during a period of time not exceeding one month from the date of assignment to the Estimating Committee. e) The court looks into and declares its rulings in the acquisition applications promptly in an equitable and fair manner if it fails to resolve the differences between the two parties. The party applying for acquisition bears all the expenses of the application procedures. f) The party seeking acquisition pays the compensation money during a period not exceeding two months in cash through the court, or in kind. If it constitutes his dwelling or his only source of income, then all these issues must be taken into account when deciding on compensation matters so that such vital issues are not changed unfavorably, and that such issues are maintained as they were existing before the acquisition. The court should then instruct the Department of Real Estate Registry to register the acquisitioned real estate in the name of the party seeking acquisition after the payment of compensation money, or to register the compensation real estate in the name of the party from whom the land was acquired, if this party agreed to exchange his original real estate (subject of the acquisition procedures) with another as compensation. g) Claims of rights and all other claims of kind do not halt acquisition procedures. Those proven claims get carried over to post-acquisition stage. If ownership proved to be of others then all relevant documented proof get also carried over to post-acquisition stage, if accepted by the pre-acquisitioned stage actual owner or else the whole acquisition procedures are repeated all over again. 3- Amicable/Mutually Agreed Acquisition a) Article 6 of the law referred to above with respect to mutually agreed acquisition states a number of provisions states that the authorities who are entitled to carry out land acquisition (which incorporate real estate in accordance with Article 1 of the law concerning land acquisition) are required by law to agree with owner of the real estate in an amicable manner for compensation in the form of either cash money or in type, or whatever is estimated by the EC that had been formed in accordance with this law. If the real estate is owned by more than one person, then the approval of all the partners becomes mandatory. b) The acquisitioning authority notifies the real estate registry to put a sign of no action required on the real estate. c) The decision of the EC is final and binding to the two parties. The decision is also irrefutable if they both have their agreement in writing, or 20 days have passed since they were informed of the decision without any of them raising any objection with head of the EC, assuming that the delay in raising the objection is because of valid reasons. If any of the two parties raised objections to the EC during this grace period mentioned above, then the procedures for amicable acquisition is considered null and void, in which case the head of the EC will be obliged to notify the department of real estate registry to remove the sign of "no action required" from the real estate. d) To be able to register in the Real Estate Registry, the two parties must first reach a written agreement about the decision of the EC, or 20 days should have passed since the decision of the Committee without either of the two parties raising an objection. For registry and acquisition to be legal, the compensation must be provided or the estate must be registered after maximum 30 days from the written agreement. Otherwise, the owner of the real estate has the right refuse the acquisition. e) If the party seeking acquisition did not pay the party from whom the land was acquired the compensation money, nor did he deposit it in the department of the Real Estate Registry or 74

75 the treasury of the primary court in the domain in which the real estate is located, nor did he register the compensation in the name of the party from whom the land was acquired in the event of compensation of type within 30 days from the date of the written agreement on the decision of the EC, or the expiry of the 20 days without either of the two parties raising any objections on the decision of the Committee, unless otherwise there exists a different agreement, the party from whom the land was acquired can then notify the party seeking acquisition and Department of Real Estate Registry of his disagreement with the issue of the acquisition, and all related procedures are then considered null and void. 4- Temporary Acquisition Articles 12 to 16 of the law referred to above define those procedures which pertain to temporary acquisition. Those authorities that are entitled by law to carry out the acquisition of real estate (inclusive of land, in accordance with Article 1 of the law referred to above) in emergency and exceptional cases (e.g. at times of catastrophes and calamities that necessitate quick response and appropriate action). The concerned authorities in such cases may decide to carry out temporary acquisition of real estates. They can do so by issuing a decree from the head of such authority, stating the duration of the acquisition which as a maximum should not exceed two years from the date of the issue of the decree. a. The governor of the governorate in which the real estate in question is located forms a committee consisting of an engineer, one of his staff, a representative of the authority who decided to carry out the temporary acquisition, and a representative of the owner of the real estate. The task of this committee is to arrange minutes containing a description of the real estate. Photographs, plans, and whatever relevant data that defines the orientation, shape, and looks of the real estate are attached to the minutes. The owner of the real estate must be summoned at an early date to be present during the preparation of the minutes. The nonarrival of the owner at the preset date does not, in any way, affect or delay the working of the committee and time. b. The EC carries out the procedures of evaluating suitable and appropriate compensation for the owner of the acquisitioned real estate for the period of the temporary acquisition, taking into account such matters as the prevailing rate similar real estates. c. The authority that had acquisitioned the real estate on a temporary basis must return it to its previous owner at the expiry of the temporary acquisition period. The owner of the real estate reserves the right to claim compensation from the authority for damages that the real estate might have suffered during the temporary acquisition. The Estimation Committee, referred to in the law mentioned above, should settle any difference with regards to compensation money. The owner of the real estate is entitled to appeal the decision of the EC in the Court of Appeal of the governorate. The Court of Appeal must then pass its rulings on the appeal during a period not exceeding three months. d. If the period of temporary acquisition exceeded two years then the authority that had temporarily acquisitioned the real estate must apply for its full acquisition. The owner of the real estate has the option of either demanding the renewal of the temporary acquisition against new compensation or the full acquisition of the real estate by the authority concerned. If none of the two optioned materialize, then he becomes entitled to ask the court to return his real estate against compensation of the delay in time. In all cases, the owner is entitled to launch an administrative and a judicial complaint against the temporary acquisition if he deems groundless the so-called emergency and exceptional circumstances. He may also launch a complaint against the duration of the acquisition if he felt that it caused him harm. 75

76 General Provisions for Expropriation The general provisions for land expropriation for public good include the following: If the act of expropriation involves only part of a real estate and results in the remaining part becoming unusable, the party expropriated from is entitled to demand the remaining part also be expropriated. The application for such additional expropriation must be made through the court within two years of the date the originally expropriated real estate was formally handed over. If partial expropriation causes physical damage to the remaining parts of the real estate, the party expropriated from is entitled to respective compensation. Moreover, every owner of real estate not affected by the acquisition but suffering damage as a result of the project is entitled to compensation. Respective court proceedings must commence not later than one year from the date of the commencement of the project. In districts where no real estate register exist, the registrar of the court shall register real estate. The Court of Appeal in which the real estate is located becomes the court which specializes in looking into all applications, litigations and legal proceedings pertaining to the expropriation. Contesting through appeal to the High Court shall not halt the execution of whatever had been ruled by the court of appeal in accordance with the law of Civil Procedure; Every authority entitled to expropriate real estate should first notify the concerned party in the GALSUP of its intention to do so prior to the commencement of expropriation procedures. Expropriation transactions and dealings are exempt from stamp duty and Real Estate Registry fees. 76