The Maputo City Administrative Court (TACM in its Portuguese abbreviation) has just ordered the Mphanda Nkuwa Hydroelectric Project Implementation Office (GMNK) and the Ministry of Mineral Resources and Energy (MIREME) to provide the information requested by Mozambican organisation Justiça Ambiental (JA!). In case no. 63/2024, JA! had appealed to the Court requesting that the GMNK and MIREME be ordered to provide information on safeguarding the fundamental rights of local communities affected by the implementation of the controversial Mphanda Nkuwa dam, proposed to be built on the Zambezi River in Tete province.
Background
The battle for access to information relating to the latest stage of the Mphanda Nkuwa project has been going on since 2019. Since then, JA! has made numerous and successive attempts to obtain information from the GMNK, through letters and even meetings, about the studies that will be carried out and their respective terms of reference, how new components will be integrated into the studies (bearing in mind that issues such as climate change, for example, have never been covered in previous studies), how the project will ensure that the voices and rights of local communities will be respected, among many other questions. Despite an apparent openness to dialogue with JA!, the GMNK has always limited itself to evasive, superficial answers, without providing any of the documents requested.
On March 6th 2024, JA! once again formally requested information on measures to protect the fundamental rights of local communities. However, the GMNK’s response was once again superficial, limiting itself to saying that the process of updating the technical studies was underway (an excuse that has been served up to us since April 2021). MIREME, for its part, didn’t even respond to the request, completely ignoring the letter sent by JA!
This stance by both GMNK and MIREME denotes a disastrous attempt to shirk their responsibility to provide information that is essential to the process of implementing the project. The information requested should be available, as it would serve to guarantee transparency, legality and preventive monitoring of the impacts on the rights of the affected communities. The secrecy and obscurantism that have permeated this project from the outset (including in stages long prior to 2018), in addition to the serious risks and impacts already identified by numerous experts and organisations, raise serious doubts about the alleged benefits touted by the government. At the same time, local communities have been reporting situations of intimidation, threats and even arbitrary arrests against those who question the development of the project. How can Mphanda Nkuwa really contribute to the country’s development if it needs to hide the steps it is taking and repress those most affected?
On 2 April 2024, JA! decided to escalate the issue to the Court (TACM), and submitted a request for it to order the government to make the requested information available.
The arguments used by the government
After being notified by the court, GMNK claimed that local communities had been actively involved, and that it holds meetings with local leaders, civil society and the media to share information about the project. The GMNK also tried to justify the lack of information by claiming that the studies had not yet reached the public participation stage. However, GMNK’s claim that community participation is restricted to the ‘public hearing’ process – the stage at which the environmental and social feasibility studies will actually be presented – does not reflect a real commitment to consulting communities, nor does it comply with the Administrative Procedures Act, a fact that the court did not hesitate to clarify. Law 07/2014 is clear: administrative authorities must guarantee public consultation and provide the information requested, except in the case of documents classified as secret or confidential, which is not the case here.
As for MIREME, it merely reproduced GMNK’s arguments and asked for the subpoena request to be rejected, claiming that our request was false, hasty and presumptuous. Apparently, MIREME thinks it’s ‘presumptuous’ for us to request public information about a project financed with public money, but it doesn’t think it’s presumptuous to decide the fate of entire communities without consulting them. Interesting definition of presumption!
A historical decision
The Maputo City Administrative Court then ruled in favour of JA!, determining that GMNK and MIREME must provide the requested information, regardless of the stage the studies are at, within 10 days. Failure to comply with this decision could result in the offence of qualified disobedience, as well as civil and disciplinary liability, according to article 110, no. 2 of the same law.
This historic decision by the TACM represents a decisive moment for the defence of the rights of local communities that are being threatened by the Mphanda Nkuwa dam project, and for the fight for the right to information in our country. The ruling reaffirms the constitutional right of access to information on projects that directly affect the environment and communities. By ordering the GMNK and MIREME to provide the information requested, the court establishes that transparency cannot be delayed or conditioned on arbitrary government timetables.
This decision also creates a legal tool that other civil society organisations and/or communities affected by megaprojects can use in similar cases, invoking this precedent to demand greater transparency.
“JA! welcomes this decision, and we reiterate that no so-called development project should go ahead without making available all the information needed and required by local communities and other social actors, so that this information can be properly evaluated, debated, and so that we can make better development decisions. This decision is also a big step towards materialising the right to say NO to megaprojects that cannot prove their alleged benefits, or that are already implicated in human rights violations, as is the case with Mphanda Nkuwa. Nothing about us without us!”
– Anabela Lemos, director of Justiça Ambiental JA!
Ruling No 65/2024
Read more about the environmental, social, climate and economic risks associated with the Mphanda Nkuwa dam