LAND RIGHTS AND LAND GOVERNANCE: Issues and Concerns

1. LAND RIGHTS AND LAND GOVERNANCE: Issues and Concerns DessalegnRahmato Forum for Social Studies Addis Ababa

2. INTRODUCTION • Land tenure and agrarian change in Africa has been the subject of debate since colonial times. • In the last two to three decades, African governments, farming people, pan-African bodies, civil society organizations, academics and other have been drawn into the debate. Literature on property rights, land reform and land governance in Africa is extensive. • Such is the concern that recently the AU, AUC, the ECA and other pan-African bodies have taken specific initiatives (Declarations, Frameworks, Guidelines) in regard to land reform and governance policies to enable African governments to address critical issues • Sound land governance and secure land rights are still pressing concerns in the continent. Many of the conflicts, civil disorders, instabilities in the continent have their roots in issues having to do with land and land governance.

3. LAND IN AFRICA • Land is central to African economies, to development, poverty reduction and livelihoods. • The demands for land have been increasing so to contests over it: Land for agriculture and Livestock Land for energy and mining Land for environmental protection and NRM Land for urbanization (& population growth) Land for industry, infrastructure, etc Land for spiritual and social purposes The old assumption that land in Africa is abundant is now in question given these pressing demands.

4. Emerging & Global Issues • 1. Climate change: According to the available evidence Africa is specially vulnerable to the effects of climate change • The following aresome of the impact of climate change on land and access to it: • Increased temperatures, desertification • Increased scarcity of water and frequent droughts • Increased incidence of extreme weather and natural hazards: floods, storms, tsunamies, heat waves, etc • Loss of natural resources and biodiversity These will: reduce the availability of land and land productivity; increase soil erosion and land degradation; bring changes to farming seasons; and intensify land claims and contests over land.

5. Emerging …..cont’d • 2. Land Grabbing by global and domestic investors: • Large scale land investments and commercialization is spreading rapidly in Africa. The demand is not just for land but also for water • Purpose is to produce : a) export crops; b) biofuel crops ;and c) industrial crops such as cotton, cane sugar, etc • The aim is often to serve the food security needs of Gulf and emerging countries in Asia; to promote energy security; to feed the demands of agro-industry. • We may now be witnessing a New (Asian) Scramble for Africa These investments are putting immense pressure on small farmers, the environment, wildlife and biodiversity. Land grabbing is not only taking land from smallholders but changing land use practices: from food crops to biofuel, from domestic consumption to exports The combination of climate change and land grabbing will pose a serous threat to food and livelihood security for a vast majority of African small farmers. The issue of food security in particular will be increasingly acute.

6. EMERGING …. Cont’d Land Grabs …. Cont’d • Land grabs are now taking place in more than twelve African countries, involving several million hectares of land . The deals have occurred in circumstances that raise questions about the system of land governance in the countries concerned. • The deals have the following characteristics: -they have been undertaken without consulting the concerned communities; they lack transparency -they are highly favorable to the investors at the expense of local people - they have been concluded at “throwaway prices”; -they compromise the rights of smallholders: farmers, pastoralists, etc. They will deprive communities of vital resources including water; -they provide little or no benefit to the communitiesconcerned -they have displaced or will soon displace smallholders; -they pose serious risks to the environment and biodiversity of the localities concerned. • In the long run these land deals may lead to the concentration of land in the hands of the few

7. LAND RIGHTS • What it means: land tenure includes a bundle of rights. A rights holder a) exercises claims over a given piece of land, for a given duration of time; b) excludes the claims of others; c) makes decision over the use (or non-use) of the land; d) has ability to dispose of the land in a manner suitable to the claimant. Rights are defined by access, utilization, exclusion and disposal. Rights are never absolute: they are exercised within a given legal/social environment or accepted conventions/customary rules. These legal or customary rules should be aimed at serving the public good, and not the interests of other land claimants or individuals In modern state systems, it is the state which defines what rights to land consists of • An important component of sound land governance is to establish an enforceable framework, statutory or customary, which ensures robust security of rights to all holders, including women (see further down).

8. LAND RIGHTS ….Cont’d • Land systems: for sound and sustainable land governance to be possible, it is important to consider the land system, or the structure of holdings in a given society. There are two main systems relevant to this: • Equitable land systems: Balanced distribution of holdings. Here there is no dramatic disparity among land holders in terms of the size of their holdings. This does not mean everybody is equal but that the advantaged do not exercise dominance and draw unequal privileges. • Inequitable land systems: Unbalanced distribution of holdings. Here there are large disparities or that land is concentrated in the hands of a few. Such systems are noted for a large landless population and population of marginalized wage laborers. The large holders are privileged in many ways and at the expense of small holders. South Africa is a good example here • Such an inequitable system breeds discontent and may lead to instability and social disorder. There is thus a need for some kind of reform to redress the imbalance (more on this further down)

9. LAND RIGHTS …..Cont’d • Plurality of land rights in Africa: • A) Customary rights: land may be held by a community, clan, descent or kin group, village, or other collective entities. There are customary rules governing access to, use of, and disposition of land accepted by all. In some cases, customary rights discriminates against women and the young, but in others this may not be the case. Sometimes customary systems are given recognition in law, and sometimes not. • B) Statutory rights. These are rights based on law. Such rights may confer rights on individuals, the state, collective groups such as cooperatives (ejidos in Mexico), businesses, or institutions (religious, etc). Statutory rights may frequently discriminate against women. • Customary and statutory rights. This combines both forms: farm plots may be held under statutory rights while common resources such as woodlots, water points, grazing land may be held under customary rights.

10. LAND RIGHTS …. Cont’d • Security of land rights: clear and enforceable land rights are critical for sound land management, improved agricultural productivity, increased income and proper care of the environment. Security to all holders without prejudice against women and others. Three key factors essential here: • Duration of rights: continuous rights to the land for good or long enough to invest on the land reap the benefits • Assurance of rights: the land holder is assured that his/her rights will not be arbitrarily overriddenby others , or by the state without due process • Robustness of rights: freedom to use, transfer, or dispose land freely.

11. LAND RIGHTS … Cont’d • Security … cont’d • A key measure that will contribute to security of rights is land registration, certification and/or titling. • Land registration to be effective must clearly identify rights holders and their plots, demarcate plot boundaries with proper survey techniques, maintain documentation in some form (written registers or digital ones), and provide plan or map of the plot attached to the certificate or title offered to rights holders. Land registers must be updatable if they are to serve a useful purpose, and for this there must be manageable mechanisms for tracking land transfers and changes to holdings. All this is a time consuming and costly exercise. • Factors that may undermine security of rights are: a) growing rural poverty; b)increasing demographic pressure and scarcity of land; c) frequent interventions by the state; d) lack of institutions responsible for enforcing the law or customary rules

12. LAND POLICY REFORM • Land policy reform has been attempted by many African governments for a variety of reasons: to redress grievances; to correct imbalances; to legalize customary tenure systems; socialization, modernization, … But often the over-ridding factor has been the desire of the state to extend its power and influence in the countryside. • The variety of reforms: a) land nationalization and state ownership; b) tenure reform: leasehold, freehold; etc. c) agrarian reform: full-scale land redistribution; d) agrarian collectivization; e) project-based change such as resettlement, relocation in connection with dams, natural parks, commercialization, e) legalizing customary tenure. • Instruments of reform: revolution, land tenure and land use laws, environment and natural resource laws. Such instruments have often been introduced from above, without consultation, consensus or careful evaluation of options • Some countries have enshrined land matters in their constitutions. This is shortsighted and makes the land system unnecessarily rigid. • The goal should be incremental or evolving land rights: the need for and uses of land will change with economic development and social progress, hence the instruments for change should be easily revised or amended. • Land policy reform has sometimes been mired in the “small-versus-large-scale farming” argument

13. LAND GOVERNANCE • Definition: processes & institutions of decision-making regarding access to and utilization of land, implementation of decisions on land, and mechanism for dispute resolution and reconciliation. Land governance is thus political, legal and technical in content. • Sound land governance is based on consultation, consensus, codification and the primacy of the rule of law. This will contribute greatly to productive land management practices, to proper care of the soil, and to social stability. • A stable agrarianregime is necessary for planning of development initiatives, for investment by rights holders, businesses and government, and for technological change.

14. LAND GOVERNANCE … Cont’d • Two key elements necessary for land governance: • a) Land administration: framework , structures and processes for determination of land rights and land use; implementation of land policy; management of land information and land registers; evaluation and oversight • In some countries land administration functions are fragmented across many government agencies, in others they are collected under one agency: Land Boards, Land Commissions, Ministry of Lands, etc. • There is consensus that from the standpoint of technical effectiveness and efficiency, the single agency approach is preferable • b) Land dispute settlement: proper mechanism essential to bring about agrarian stability and protect rights of smallholders, the disadvantaged and others. Here again there are two experiences: dispute settlement by regular courts or by specially established land tribunals or land courts. Each has its advantages and disadvantages.

15. CONCLUSION • Land policy should aim to provide secure rights of holdings, and establish a dynamic but balanced land system that promotes agricultural growth and livelihood improvements. • Decisions on land matters, including policy reforms, new investment initiatives, etc. should not be imposed from above but must be a product of broad consultation, reflecting general consensus and following extended public debate. • Land laws should be clear and unambiguous, otherwise they provide undue discretionary power to public authorities and privileged interests • Land disputes are inevitable, the goal therefore is to minimize them. Dispute settlement must be according to the law or to accepted customary rules in a non-discriminatory manner. The purpose should be to promote sustainable reconciliation. • Rights consciousness and knowledge of the relevant land legislation by land holders is essential if they are to preserve and enhance their rights • Finally, there is a long road to travel before Africa’s smallholders will enjoy the fruits of sound land governance.

16. END OF PRESENTATION THANK YOU