INNOVATIVE APPROACHES TO LAND: KEY ELEMENTS FOR A ROAD MAP

1. INNOVATIVE APPROACHES TO LAND: KEY ELEMENTS FOR A ROAD MAP Clarissa Augustinus Chief, Land and Tenure Section, Shelter Branch, Global Division UN-HABITAT Garowe, 11 June 11 2006

2. OVERVIEW • What is the land sector • Experiences of land in post conflict from other countries • Experiences in land administration & land tenure reform from the rest of Africa • Experiences in Islamic land law from other Muslim countries

3. LAND SECTOR COMPONENTS • Land policy, land laws, land regulations • Land tenure, land management (e.g land sharing), land administration • Land information (e.g. GIS/LIS), land information management (LIMS), land use information • Land use planning, land tax • Land dispute resolution • Training & capacity development • Institutional re-structuring –decentralisation, allocation of duties, coordination of information, procedures (technical processes) • Geodetic, mapping, cadastre, registration • Consultations with all stakeholders • Financial management/budgets, cost structure • Awareness campaigns

4. LAND ISSUES IN A POST CONFLICT SOCIETY • Lack of land policy • Land administration system not working • Powerful people grabbing public & private land • Decades old planning system • Returnees, IDPs and refugees • Invasion of land by the poor • Breakdown in law & order • Overlapping rights & claims on same piece of land/house • Large scale confusion and gaps in the legal framework • Need to replace buildings destroyed in conflict (building permits)

5. IMPLEMENTING A ROAD MAP IN A POST CONFLICT SOCIETY • What is a road map e.g of components of a road map. • Phasing & sequencing • Difficult to produce • Lack of political will &/or focus • Short term approach in emergency phase • Difficulty of moving from emergency to reconstruction phase • New economic opportunities -criminals /warlords associated with land • Institutional gaps • Institutionally unstable environment

6. PRIORITISING APPROACHES • Priority –technical approach or focus on land dispute resolution & national reconciliation • Importance of agreement on who gets allocated land rights (adjudication) • Acceptability of land records & procedures • Institutional issues & products/outputs • Giving ordinary people information

7. LAND APPROACHES IN AFRICA • Customary tenure in rural and urban areas • Little registered land (1-15%) • Few countries with national land information system • Paper not computerised information • Poor geodetic, 30-40 year old mapping • Lack of human & financial capacity • Many registered titles unclear • Land sales limited to relatives &/or national groupings • Land rights of widows problematic • Most countries undergoing land law reform, also of Family Code

8. PROBLEMS FOR USERS WITH CONVENTIONAL LAND TITLING • Not fit customary • Does not fit family/group rights • Poor access to information –not decentralised • Not affordable • Does not solve land disputes

9. PHASES & SEQUENCES • Involves a number of separate ministries • Involves many sectors & key for national poverty alleviation • 8-11 years to start implementation • Consultations with all stakeholders over time • Land policy • New land laws • New regulations • Roles & responsibilities sorted out • Training of officials • Pilots undertaken • Donors role over time

10. ELEMENTS OF NEW LAND LAWS • Pro poor & affordable • Strengthens decentralisation • Improves governance & transparency • Information campaign for ordinary people • Strengthens land tax • Addresses dispute resolution • Innovative land tenure and land administration approaches • Policy & implementation designed together • Costs • Re-structuring of government • Customary tenure certificates • Protection of women’s land rights • Additional steps over time (incremental)

11. UN-HABITAT RESEARCH ON ISLAMIC LAND • Review at Cairo Experts workshop, December 16-17 2005 • UN-HABITAT research- Islamic theories, law, land tenure, human rights, gender, inheritance, endowments, microfinance • Findings: links between customary, State laws, Shari’a land law • Methodology- ijtihad (reasoning) offers possibilities • Islamic land law is special and offers contemporary tools of empowerment

12. ISLAMIC LAND TENURE AS A CONTINUUM Islamic land tenure concepts from 1858 Ottoman Code • Mulk (full ownership of land) • Miri (State land) • Metruke (common land) • Waqf (endowments) • Mewat (‘dead’ land) • Also, Musha (collective)

13. CASE STUDY I- COMPENSATORY PROPERTY SCHEME FOR MUSLIM WOMEN • Women receive half of male inheritance shares • Nothing in Islam to prevent women’s equal access to land • Women can be ‘compensated’ by other means property, gift, endowment, dower (mahar), maintenance etc? • Islamic scheme requires integrated approach. • Patriarchal/customary resistance to Islamic arguments?

14. CASE STUDY II- UNLOCKING LAND FOR IDPs • Mewat (dead land) can be claimed by user • Strict rules, but ijtihad (personal reasoning) is possible • Saudi example, squatters use mewat concept • Islamic land law can be negotiated, within its principles

15. WAQF MODEL FOR LAND REGULARISATION State, waqf and mewat lands can be regularised for users • State or private person retains ownership of property, creates waqf • Waqf can provide civil society management such as Shari’a committee working with an Islamic bank? • IDPs or settlers regularised, ownership later? • Authenticate arrangement