Land and Corruption in Africa in 3 Topics | Land Portal | Securing Land Rights Through Open Data
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One global movement sharing one vision: a world in which government, business, civil society and the daily lives of people are free of corruption.

In 1993, a few individuals decided to take a stance against corruption and created Transparency International. Now present in more than 100 countries, the movement works relentlessly to stir the world’s collective conscience and bring about change. Much remains to be done to stop corruption, but much has also been achieved, including:

The Land Policy Initiative is a joint programme of the tripartite consortium consisting of the African Union Commission (AUC), the African Development Bank (AfDB) and United Nations Economic Commission for Africa (ECA). Its purpose is to enable the use of  land to lend impetus to the process of African development. The programme is governed by a Steering Committee that meets periodically, while a joint secretariat implements day to day activities. The secretariat is assisted by an African Taskforce on Land. 

  • Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights: Case of Kenya and Uganda
  • Analysis of Alternative Dispute Resolution systems in addressing Land Corruption: Case of Kenya and Ghana
  • The Role of Traditional Leaders in Customary Land Administration: Case of Ghana and Zambia

Corruption in land governance has gained growing attention in recent years.  National Chapters (NCs) of Transparency International (TI), under the project Land & Corruption in Africa (LCA) work to increase awareness and acknowledgement of land corruption in the national land policy and governance discourse.  TI NCs identified three subjects on land governance that directly affect local communities. The subjects are described are not limited to the countries’ cases, so the contribution collected might contribute to improve the land governance across Africa.

Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights

In Kenya, the practice of forced evictions is a growing national problem that threatens lives and livelihoods especially of the most vulnerable and marginalized members of the society including the urban poor, slum dwellers, persons living with disability, minorities and indigenous groups, women, children and the elderly. Forced evictions have been carried out under the pretext of forest conservation, development projects, and slum upgrading projects. The massive eviction of residents of the Kibera informal settlement in southwest Nairobi, Kenya (one of the poorest communities of Kenya) to pave way for road construction in July 2018 left more than 30,000 people homeless and rendered 2,000 children without schooling.

The situation is similar in Uganda, where the significance of land cannot be gainsaid. The emerging development opportunities by the government characterised by discovery of oil and gas reserves, e - revolution, globalization and economic integration, among others[1] entail projects that require huge amounts of land which the government has and is still acquiring.  This makes land highly attractive to both investors and land speculators. The unprecedented new interest, coupled with the relative ease of persons with financial resources to easily obtain a land title or rights over land, has led to a scramble for land resulting into increased land grabbing, unlawful illegal evictions, fraudulent and or irregularities in land acquisition processes, unfair compensation, leading to loss of livelihoods, family breakdown, loss of inheritance rights, opportunity for corruption of public officials and abuse of community rights. This has greatly eroded the public confidence in land administration.

Analysis of Alternative Dispute Resolution systems in addressing Land Corruption

The Constitution of Kenya 2010 recognises access to justice for all as a fundamental right that all persons are entitled to and obliges the State to not only respect and protect, but also promote its realization in the fullest sense.  Notably, the law identifies access to justice as a core element of achieving social justice in the country. To enhance access to justice, the government enacted the Legal Aid Act 2016  to facilitate the provision of legal aid to the poor. Besides the Act, there also exists the National Action Plan on Legal Aid (2017-2022)  whose main underlying spirit is ‘Towards access to justice for all in Kenya.’ This provides an opportunity to seek recourse to land dispute cases, and more specifically, land corruption related cases. It is instructive to note that the Constitution now recognises and promotes the use of Alternative Dispute Resolution in settling disputes, land being one of them. There is a need to strengthen the capacity of various institutions of governance to deal with the pervasive problem of corruption, to enhance public confidence in their ability to play their part in combating the vice.

In Ghana, access to justice is enshrined in various provisions of the 1992 Constitution. Article 12 demands from all absolute respect to uphold the fundamental human rights and freedoms as enshrined in the supreme law of the land. A major obstacle in accessing justice in Ghana is the lack of an efficient and fully-functional court system, with few poorly resourced courts to provide efficient services to all. Moreover, there are too many protracted land cases in courts where it takes between three to five years minimum and between eight to fifteen years maximum, to successfully resolve land disputes in court. The situation has also been characterized by high risks of corruption, abuse of human rights and justice. Consequently, most Ghanaians prefer using approved and unapproved alternative means of dispute resolution mechanisms rather than the formal court systems.

The Role of Traditional Leaders in Customary Land Administration

In Ghana, corruption in customary land transactions is found to be most likely to occur at the instances when land is allocated by traditional leaders and registered by government institutions. Moreover, private investors have a considerable effect on increasing land prices and the amounts of symbolic drinks and kola nut payments. This has a negative impact on community members by limiting their access to land and title registration services with chiefs, which often results in conflict. Nonetheless, investors are also found to be at a disadvantage in land allocation processes, due to the vagueness and uncertainty of the dual land system.

In Zambia, the overlap of authority in land institutions leaves the system vulnerable to corruption, especially during the conversion process of customary land to statutory leasehold title. Multiple institutions governing this conversion process lack clear guidelines, and authority figures such as chiefs may misuse their discretionary power for personal gain. The lack of standardised processes in customary land administration have overall created a dynamism within which community members have limited access to information on how to secure their land rights. Investors are found to further complicate this situation as the demand for land and a lack of protection of customary rights have resulted in the displacement of customary landholders across the country.

 

Objectives

The specific objectives of these dialogues are to:

  • Collect recommendations in improving the state of affairs, and engaging in a gender responsive approach towards managing forced evictions
  • Examine the legal, institutional reforms and progress made towards making access to justice for all a reality
  • Collect recommendations to better secure customary land rights within a dual land system particularly in the context of the rising pressure on land brought about by the arrival of investors.

Dialogue questions

 

  1. Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights: Case of Kenya and Uganda
    1. How do you strike a balance between development for common good (public interest) and forced evictions?
    2. How do forced evictions specifically affect women land rights?
    3. What measures/safeguards exist in Kenya and Uganda for protecting citizens against forced evictions? In your opinion, do you think these measures are adequate?
    4. What are your recommendations towards addressing the impact of forced evictions on women in Kenya and Uganda?

 

  1. Analysis of Alternative Dispute Resolution (ADR) systems in addressing Land Corruption: Case of Kenya and Ghana
    1. How effective are Alternative Dispute Resolution (ADR) mechanisms in addressing Land Corruption cases?
    2. What challenges exist in the implementation of alternative dispute resolution (ADR) in resolving land corruption cases in Kenya and Ghana?
    3. How do we guarantee access to justice for vulnerable groups affected by land corruption?
    4. Do you think there is a conflict between the formal and traditional justice systems on land? If so, how can the conflict be addressed?

 

  1. The Role of Traditional Leaders in Customary Land Administration: Case of Ghana and Zambia
    1. To what extent the customary land administration is transparent in Ghana and Zambia?
    2. What are the challenges in a context where the land system is governed by both customary and state authorities?
    3. What are the corruption risks in the allocation and registration/conversion of customary land to investors?
    4. Implementing a legal dispute resolution mechanism in the customary land administration would it help to improve the management of customary land?
    5. Could sanctions against chiefs when they deliberately violate the land use could make a difference?

 

Comments

ALPC is very pleased to partner with the Land portal in this important discussion whose theme aligns with the theme of our upcoming Conference on Land Policy In Africa (CLPA-2019) to be held under the theme: Winning the Fight against Corruption in the Land Sector: Sustainable Pathway for Africa’s Transformation. It is my sincere hope that the outcomes of the discussions will contribute to the knowledge and benefit participants of CLPA-2019, scheduled for 25-29 November, in Abidjan, Cote d'Ivoire.

 

The African Land Policy Centre (ALPC), is a joint initiative of the African Union Commission (AUC), the United Nations Economic Commission for Africa (ECA) and the African Development Bank (AfDB) launched in 2017 as a predecessor to the Land Policy Initiative (LPI) secretariat, which was established in 2006.  Some notable achievements of the LPI/ALPC include: galvanising AU Members States and other stakeholders towards commitments and development of key instruments including: the Framework and Guidelines on Land Policy in Africa (F&G), Guiding Principles on Large- scale Land based Investments (GPs), and Guidelines on the Development of Curricula on Land governance in Africa, all endorsed by the African Union Member States. The ALPC is facilitating and coordinating the implementation of the AU Agenda on Land. In this endeavour the ALPC is building on the work of the LPI to implement its strategic plan in key strategic areas to  ensure policymakers and key stakeholders are adequately furnished with important and relevant data and knowledge on land issues. The Centre's strategic plan is also focused on increasing and sustaining political will and capacity development to equip policymakers and stakeholders with requisite skills and expertise while strengthening institutions and systems in the land sector. The centre promotes coherent and effective partnerships with donors, technical partners and actors central to the improvement of land governance and administration in Africa.

 

The 2019 Conference on Land Policy in Africa will focus on addressing corruption In the land sector

 

The Conference on Land Policy in Africa is part of the above mentioned strategic plan with an overarching goal of knowledge dissemination to promote evidence based solutions and partnerships in support of Africa's land sector. The Conference on Land Policy in Africa is convened every two years as a policy dialogue platform for African stakeholders on land governance, in response to needs expressed by African policymakers and stakeholders. The inaugural Conference on Land Policy in Africa took place in 2014, and was followed by the second Conference held in November 2017, which gathered 450 participants representing government, traditional leaders, CSOs, practitioners, parliamentarians, development partners, Academia and research institutions.

 

The forthcoming third edition of the Conference on Land Policy in Africa is scheduled to take place on 25 - 29 November 2019 in Abidjan, Cote d’Ivoire under the theme: “Winning the fight against Corruption in the Land Sector: Sustainable Pathways for Africa’s transformation”. As you might recall, the African Union declared 2018 as African’s Anti-Corruption Year, setting a theme: “Winning the Fight against Corruption: A Sustainable Path to Africa’s Transformation”.  The African Union recognises that corruption is a key factor hampering efforts at promoting governance, socio-economic transformation, peace and security, and the enjoyment of human rights in the Member States.  In many corruption perception indices, Africa is perceived as the most corrupt region in the world.  It is therefore evident that corruption has deleterious effects on the socio-economic development, peace and stability of the African continent.  Tackling corruption in the land sector, through improving good land governance and building robust land governance institutions, will contribute towards the attainment of the “The Africa We Want” as envisioned in Agenda 2063. 

 

The Conference adopts a scientific approach, with a Scientific Committee providing inputs and guidance. It is designed to capture a broad range of land-related local knowledge and know-how, and generate interest from CSOs, women’s organizations, farmers organizations, traditional leaders and the private sector. Selected papers from the Conference will be peer-reviewed and published in a special issue of the Journal of African Land Policy and Geospatial Sciences.

 

CONTACT

African Land Policy Centre  

email: africalandconference@un.org

 

Hi Joan

Could you please share more information on how one can participate in the Land conference, my email is worldwidecarefornature@yahoo.com

 

As a human rights defender who also participated in the 2016 Women to Kilimanjaro Campaign, I feel this conference will help to advocate for Women's land rights and preservation of customary land.

 

I look forward to your response 

Hi Joan,

Thank you for this. Would you kindly share more information on the conference please.

 

Will be pleased to participate in this confeence. One of interest areas is farmers-herdsmen land conflcits in Nigeria. I am also interested in sustaiable land use and development as well as land grabbing in Northern Nigeria by the Chinese . I have written a few papers on land governace in Asia as in the case of FELDA in Malaysia- where less public sector corruption or if you like good planning keeps lannd corruption at bay creates unlimited lad value chain for the poor please see my paper on this link: https://www.sciencedirect.com/science/article/abs/pii/S0264837716301946.  Corruption as played big role in exacerbating land conflcits between faming and pastoralist communities please see my work enttitled:Ignoring the Core of the Matter: Why Strategies for Controlling Perennial Farmers-Herdsmen Land Conflicts are Ineffective in Nigeria? at https://www.researchgate.net/publication/326838937_Ignoring_the_Core_of_...

On behalf of the Land and Corruption in Africa project of Transparency International, it is my pleasure to welcome you at this online dialogue on Land Corruption in Africa.
Land corruption is a key issue for Transparency International and its national chapters around the world. Whether it’s an opaque deal between private investors and local authorities, citizens having to pay bribes during land administration processes, unaccountable urban planning, or customary laws that deny women their land rights, land corruption hits poor and marginalised men and women hardest.

The first week of this discussion will be dedicated to the analysis of the role of traditional leaders and their relationship to investors and public authorities in land in Ghana and Zambia. What are the recommendations that contribute to establish a more transparent customary land administration system particularly in the context of the rising pressure on land brought about by the arrival of investors.

The second week of this discussion will address the issue of forced evictions as a form of land corruption and its impact on women’s land rights in Kenya and Uganda. What are forced evictions? Are they legal? Sadly, forced evictions happen in the watchful eyes of the government who in most cases justify the evictions in the name of ‘development’ for the general public good.

The third and last week will be dedicated to the analysis of alternative dispute resolution systems in addressing land corruption cases in Kenya and Ghana. The main question has been whether justice in land cases can be made more accessible by encouraging a more collaborative approach between formal and informal justice systems.

Corruption appears to occur most in the aspects of customary land transactions (and registration). This is no more a surprising issue. Customary land registration processes are still time-consuming. They generally remain poorly documented. Transactional activities related to them remain hooded in non-transparent measures. Maybe we could start thinking of using applications and approaches that are corruption proof. This was what we had thought that technology-driven measures (using digitization) would have stopped or at least reduced, but it seems not to have been the case.

 

Blockchain provides a more transparency focused tool for customary land administration. Using Blockchain will involve the creation (management or administration) of distributed land information databases for peer-to-peer transactions, usually shared between the nodes of a network. The implication is that a central system will record land transactions in real-time and transactions are transparent to all in the system. As Blockchain is emerging, it is worthwhile to use it in the land administration sector to enable transparency, and so reduce corruption.

 

In Ghana, for instance, Benben is already introducing Blockchain applications in aspects of real estate and related land sector activities. Blockchain is necessary for the customary land administration sector because it has the advantage of ensuring "transparency" (which is the primary cure or exposure of transactional corruption).

Well, blockchain and bitcoin are all new to us. Like Facebook, it is open to all sorts of sorcery and ma-jonja by the Big Man and his mates. The customary commons is a proven socio-ecological-spiritual system, which blockchain/Bitcoin ain't. And we have a climate disaster on the go.

I totally understand your fears. Hoever, blockchain is not anything like Facebook. It is actually a disruptive technology that is totally hinged on the demand for transparent transactions. It enhances transactional security based on decentralized information dissemination. See a simple description of Blockchain here

Many thanks, Uchendu for sending the info on blockchain.

How can blockchain technology assist in negating corruption in Land Administration?

Transparency -- Once a land record has been published to a blockchain it is available everywhere worldwide and is censorship resistant. Anyone with knowledge of the data can view the record and its contents.  

Immutability -- Once a land tenure record has been published to a blockchain it cannot be removed or changed, preventing

Availability – A land record on the blockchain would be protected from system failure or a single server going down. It becomes fault tolerant.  

Censorship resistance -- Proof-of-work blockchains make changing the ledger progressively more difficult over time. Many chains like FLO Blockchain implement logic that locks in a transaction after specific period of times (100 confirmation for FLO),

Archival trust — More work is added to a land record over time as new blocks are created by miners. This increasing work increases the reliability of the record which is an important component of archival trust. This “work” becomes a proxy for archival trust.

Consensus -- Blockchain allows consensus of customary tenure to be digitally recorded in a way that is persistent and verifiable.

With blockchain you have a mathematical proof of who wrote a record, when it was written, and the record’s contents. Medici Land Governance posts all land records and transactions in their land administartion system on a public blockchain for these very reasons.

The customary land administration set up in Ghana puts the allocation of customary lands in the hands of the local traditional authority, with the consequent land rights recordation and documentation in the hands of the governmental bodies (Biitir & Nara, 2016). However, advances by some customary land secretariats in the maintenance of update land rights registries show the potential of Customary Land Secretariats (CLS) as an alternative/informal land registry with limited capacity to undertake its mandates. The functions of the CLSs include:

  • Consolidate and develop landholding rules and develop public land allocation and transaction procedures to limit double or multiple allocations;
  • Adopt simple land use planning of the customary area to minimise inappropriate land use and protect areas of common interest to the community;
  • Identify and resolve overlapping claims of rights among landholders;
  • Develop more effective dispute resolution procedures, including the adoption of record keeping to help establish precedent;
  • Reach agreement with neighbouring communities on the boundaries of the customary land area;
  • Establish simple registries to record land allocations, transactions and land use planning decisions;
  • Develop forms of certificates or entitlement which precisely reflect the nature of rights over the property awarded and the terms and conditions;
  • Methodically identify, adjudicate, demarcate and register holdings in the customary area without formal survey input as appropriate; and
  • Develop mechanisms which improve the security of those identified as most likely to be vulnerable; women, very poor and landless families in the community and strangers and tenants (Government of Ghana, 2003)

The general Customary Land Administration in Ghana is perceived to be corrupt based on the facts that;

  • There are no points of space  for either horizontal or vertical accountability mechanism
  • No accounts is disclose to family members on the proceeds received in the transactions, allocations and disposal of piece of land.
  • There are no lay down mechanisms to follow with regards to disposal of land
  • Fees and levies are not documented but discretionary decided base on your negotiations.
  • Generally undocumented land contract
  • Undetermined Customary boundaries that increases double sales and land conflicts etc.

It was based on these assumptions that the Ghana Land Administration Project decided to pilots Customary Land Secretariat (CLS) as designated office mandated to support the Land Owning groups to be more transparent and accountable in documenting land transactions within the Tradition Councils. 

Over 58 CLSs exists across the country, with dedicated office with some complement of staff that support the functioning of the secretariat. Some of the CLSs has become financially viable by making the land transactions so transparent by documenting and displaying fees, levies and charges on every transactions. Some of the CLSs have an audited accounts that is read to the hearing of family members every 40 days of their meeting.

Some of the CLSs have established stronger linkages with the District Assemblies and Office of Administrator of stools lands in regularizing building and other developmental plans, base maps and revenue collection on rents and property rates.

Question 1: To what extent the customary land administration is transparent in Ghana and Zambia?

Customary Land Administration can be divided into Stool Lands and Family Lands. The lack of transparency can be traced to the absence of candour in respect of the size of land that had been granted and how much is realised from the sale/disposition of the land. The other critical issue is multiple sales by landowners. Lack of transparency could also be traced to the deliberate instigation of conflict by principal members of the same family or between allodial owners, stools and family heads in order to deprive a purchaser for value from enjoying his acquired interest in the parcel in dispute.

it is evident that across the world and Africa as well, policies and/or legislative change have given a number of different countries including southern African countries(Botswana, Mozambique, Namibia, South Africa and Zimbabwe) the rise of indigenous community conserved areas that are managed by traditional leadership in the region. This was based on the devolution of rights from central government to local communities to make use of traditional structure(with little interference by the government) to manage the land and natural resources, including forestry, water, wildlife. this mostly happened after failing of policing natural resources by using formal structure. and this case the traditional institutions because there have trusted system and stuctures, some levels the  issues of corruption is low eg most of decision are made the trusteful structure. 

Two schools of thought exist on the nature of transparency of customary land administration in Zambia. From the traditional authority, they claim that through their God given right to be custodian of land they have a consultative system made up of village headmen,(indunas) which ensure that all land administration issues are transparent. From the legal and regulatory framework there is a requirement through Circular No. 1 of 1985 any land transaction which requires conversion into Stateland must have a signed consent by the Chief. However, such consent may not necessarily have been vetted by the village community and could have been obtained in corruptly.

Emmanue Tembo makes a very interesting and valid point when he points to blurred lines on conversion of cutomary land to state land where consent by a Chief is required. In extension, I can argue that whilst inclusion of traditional authorities in land conversion is crucial and that it requires transparency in so far as local voices are concerned, the wider socio-political and economic processes that bear on Chiefs must be accounted for.  

Like most African countries Zambia has a dual land tenure system. Customary tenure deriving from indigenous customary laws and practices and statutory tenure deriving from the country’s British colonial legacy. The following are the legal instruments which have explicit or implicit references to customary land or its administration.

·        Constitution

·        Lands Act

·        Chiefs Act

·        Registration and Development of Villages Act

·        Urban and Regional Planning Act

·        Local Courts Act

·        Subordinate Courts Act

·        High Court Act

There is currently no law or written regulations specific to customary land administration. The limited guidance available relates to the conversion of customary land to state land. However, to the extent that customary land tenure and its administration are provided for or implied in other public legal instruments, it could be argued that there is a very limited level of legal transparency with regard to this form of land administration.

In practice, access to customary land in Zambia is facilitated by chiefs through village headpersons and Indunas (chiefs’ advisors) and follows a more simple process compared to the complex and bureaucratic procedures governing access to state land. However, these customary processes vary from chiefdom to chiefdom and are not codified and could be argued, are less transparent as there is no explicit guidance on the roles and responsibilities of traditional leaders in managing customary land.

Although chiefs hold and administer land on behalf of their subjects, the decision making process is not very transparent especially when land is subject to conversion from customary to state land. There are reported instances when chiefs have been accused of allocating huge tracts of land to investors without consulting the local communities.

Emmanuel Mutale places opprobrium on “complex and bureaucratic procedures governing access to state land.” In reality I wonder whether this could raise the need to promote transparency in procedures shaping access to state land which by implication could in turn help governance of customary land.

This is somewhat transparent depending on the level. At the level of chiefdoms – between local communities, headmen and chiefs – one can find some level of transparency due the nature of landholding. Land is often held in clans and tribes and is shaped by clear lines on availability, access and utilisation which are built overtime.

At a higher level such as when dealing with investors – domestic or foreign – there are some noticeable gaps. Reports exist in different parts of Zambia where community subjects have complained their traditional leaders gave away their land without consultations and consent.

  • Some of these relate to the hybrid of authorities and lack of clarity on boundaries. In Zambia, traditional leaders do not have the mandate to parcel out tracks of land over 250 ha – beyond which the authority of the Minister steps in.
  • Given that government systems get involved at this level, reports have emerged on how state officials get intricately involved in land allocation thereby creating bureaucratic and legal confusion.

Overall, a surge in domestic and foreign land investments heighten overlaps of authority in land institutions, raising risks of corruption such as in identification and conversion process of customary land to statutory leasehold title. Recent research1 shows this has been compounded by poor coordination and collaboration between and among state institutions which is further shaped by unclear guidelines and authority in customary land administration.

1Manda, S., Dougill, A., and Tallontire, A. (2019). Large-scale Land Acquisitions and Institutions: Patterns, Influence and Barriers in Zambia. Geographical Journal, Vol. 2019: Pages 1 – 15: DOI:10.1111/geoj.12291.

Zambia has a bifurcated land tenure system inherited from the colonial administration: state land (6% - managed by the Commissioner of Lands on behalf of the President) and customary land (94% - managed by traditional authorities). Constitutionally, all land in Zambia is vested in the Republican President who holds it in perpetuity on behalf of all the Zambian people. However, customary land is constitutionally recognized as a ‘non-state’ alternative to ensure equity and access to land by the rural Zambians. Though official figures indicate that customary land is 94% of the national territory, a more recent study estimates it to be about 51-54%.[1] This figure highlights the level of customary land that is being converted in the country.  

Managed by traditional authorities, customary land is not subject to formal regulations but rather to socio-cultural values of a particular ethnic group where the land is situated – therefore, plurality of customary land administration mechanisms. Using the term ‘transparent’ to loosely refer to elements of accountability, traditional authorities are not accountable to anyone in their chiefdoms. Constitutionally, to convert customary land for development project in national interest, the government is legally obliged to consult with the Chiefs. Chiefs therefore can allocated land whoever they want, and have been said to be enriching themselves from land sales. There is little opportunity for prosecuting a Senior Chief, for example because formal regulations do not apply to customary land, just like customary regulations do not apply to state land. The co-existence of state and customary land is a ‘marriage of convenience,’ and this has been at the core of conflicts that have stalled the formal process to advance the adoption of National Land Policy.[2]

Though there are two land tenurial systems in Zambia, there are 7 acceptable pathways to obtain land for investments, and traditional authorities, the Commissioner of Lands and the Local Councils are the decision points in the land acquisition process where corruption is likely to happen the most.[3] In a country with poor land governance, ‘government self-acceptance’ of corruption[4] and inherently constrained financial, institutional and human resources, corruption risks are high, and though implementation of legal dispute mechanisms would improve the management of customary land, in practice, this is still a mirage in the current (in)formal structure of customary vs state land. In theory, sanctions against chiefs, just like anyone else can bring about positive behaviour change. Perhaps, the question to pose at least in the Zambian context is, ‘can a Senior Chief be sanctioned for violating land use?’ In the current land policy dispensation, it is less likely that a powerful traditional authority be sanctioned.   

 

[1] Sitko, N. J., & Chamberlin, J. (2016). Land Use Policy The geography of Zambia’s customary land : Assessing the prospects for smallholder development. Land Use Policy, 55, 49–60. https://doi.org/10.1016/j.landusepol.2016.03.026

[2] See a story here: House of Chiefs Reject Draft National Land Policy and Walk out of Meeting, Lusaka Times, March 1, 2018 https://www.lusakatimes.com/2018/03/01/house-chiefs-reject-draft-national-land-policy-walk-meeting/    

[3] Chilombo, A. (2019). Understanding the Socio-economic and Environmental Impacts of Large Scale Land Acquisitions in Zambia: a Case of Nansanga Farm Block. PhD Thesis, The University of Edinburgh

[4] General Republic of Zambia (2017). The Zambia Seventh National Development Plan (p29)

Very well said Andrew. In your words: ".......traditional authorities, the Commissioner of Lands and the Local Councils are the decision points in the land acquisition process where corruption is likely to happen the most." Is there a tacit assumption here that sanctions be considered for all actors across all decision points as opposed to a somewhat exclusive focus on chiefs? Will this enable Zambia draw out potential culprits of corrumption in customary land administration? 

Focusing my contribution on Zambia, and rather than answering some questions myself, I would like to make some suggestions in order to obtain (more) clarity on the issues raised.

The information on (the transparency of) customary land administration in Zambia is ambiguous, at least if one consults the, to my knowledge, main and most comprehensive source: the application of the World Bank’s Land Governance Assessment Framework (LGAF) to the situation in the country[1]. On the one hand, some highly critical remarks are made regarding the patriarchal nature of customary land acquisition, the unclear definition of customary land rights and chiefs that do not consult their communities, and “ (…) the unwritten nature of customary law or practices used to administer customary tenure, leaves room for manipulation and corruption.” These statements are very much at odds with the “A” score (i.e. the highest) on indicator 6.1.2.a: “Non-documentary evidence is effectively used to help establish customary rights.” In other words, it is not that easy to answer the question to what extent the customary land administration is transparent in Zambia. It would be pertinent to invite the LGAF author to participate in the debate and shed some light on this question.

Regarding the challenges of the ‘cohabitation’ of customary and statutory tenure, it is probable, in Zambia and anywhere else, that there will be problems when two competing administration systems lay a claim on the same portion of land. These problems have been discussed at length in the Land Portal’s debate on Customary Land Recognition: Zambian Approach to Documentation and Administration, where mention was made of the possibility of “passing laws that elevate existing customary land rights up into nations' formal legal frameworks, thereby making customary land rights equal to documented land claims”, a step suggested by Rachael Knight in her influential study on the statutory recognition of customary land rights. I consider the idea very valuable, precisely because of the aforementioned overlapping claims and the corruption risks that they entail, particularly in a country where corruption in general is at a high level according to the Corruption Perception Index (35/100), and probably pervades all areas of governance. I would like to know what Ms Knight has to say about the specific case of Zambia and am, therefore, suggesting to ask her to participate in the debate.

And finally, let’s try to avoid turning the debate into an exchange of opinions about the ultimate stakeholders but without giving them a voice. Farmers are by no means the only social category that has a stake in land, but they are one of the most important ones, in any part of Africa. The Zambia National Farmers’ Union (ZNFU) has on some occasions intervened in the land debate in their country, and it would be of much added value to take into account their views (and/or or those of the Zambia Land Alliance, of which ZNFU is a member) on the relationship between customary land rights, corruption and tenure security for their constituency. Nothing about them without them!

In conclusion, rather than pretending to be able to write a full-fledged essay on customary land rights and corruption in Zambia, I prefer to try to advance the debate by making suggestions for other sources of information: Mulolwa, Knight, ZNFU.

 

[1] Augustine Mulolwa (2016): Land Governance Assessment, Zambia Country Report

A warm greeting to you all, it is a delight for me to return to the Land portal and add my voice to how customary land is managed in my country particularly Luapula province. Every time I engage in advocacy work on land I ask my self if we as Zambian know who land belongs to. This is because our constitution states that all natural resources (land inclusive) is vested in the president who holds it on behalf of the Zambian people. On the other hand traditional leaders who are well recognized by law as custodians of customary land perceive this land to be theirs without providing for holding on behalf of the people who have been born and raised in that chiefdom.

Whilst the state draws it's powers of land allienation from the law,  traditional leaders also have powers to grant or deny convention of customary land to state land.

Going back to my question, I feel Zambia is struggling with corruption issues on Land because both the state and traditional leaders do not acknowledge the fact that the Land they are managing belongs to the Zambian people who they are supposed to serve. Today Zambia has no land policy because the fight was over the views of the state versus traditional leaders without consideration of the Zambian people's view. 

Moving forward women in Zambia will only enjoy their right to land once the duty bearers understand who the real power holders on land are. Unless the power is transferred from the current holders to the people customary land in Zambia is under serious threat of diminishing. 

The answer to this question is well known. There is no transparency in the way customary land is administered. As far as traditional leaders are concerned they answer to no one!  This system of power holding and not being accountable to people being served is what has seen customary land fall in the hands of foreign investors and the elite Zambians. 

Based on all the studies and research on land, it's my sincere hope that at the end of the debate we all focus on implementing the recommendations because that's where our efforts are needed the most. 

The management of land in Zambia is divided into two sectors, customary and state administration systems, though the government has generally a say on almost all land administration and management (except Western Province were the land management system is entirely under the sole discretion of the Litunga).

Land under customary systems is managed and overseen by the traditional leaders, styled as Chiefs, with their under-lords or administrative assistants called Headpersons looking on smaller portions of the Chief’s entire chiefdom. Needless to say, Chiefs in their day to day administration are assisted by a Council of Elders called by different names from one culture to the other, it is common for them to be referred to as Nduna in the Eastern region and as Chilolo in the Northern parts of the country.

Chiefs derive their authority to exercise power over land principally from the Constitution Chapter One of the Laws of Zambia, which in most jurisdictions, is the supreme law. Part XII of the Zambian Constitution in Article 165 sets out the institution of Chieftaincy and establishes traditional institutions guaranteeing them exercise of culture, customs and traditions, additionally, subsequent to the provisions of Article 166, the Chieftaincy has power to hold property in trust for its subjects. In this context, land is property, as Part XX, Article defines Property as “as a vested or contingent right to, or interest in, or arising from …land, permanent fixtures on, or improvements to, land”.

Additionally, the Lands Act Chapter 185 of the Laws of Zambia, which is the principal Act on the administration of land in Zambia, in its preamble identifies existence of customary tenure, and provides for its statutory recognition, it further in Section fortifies that.  Other pieces of legislation like the Chief Act Chapter 287 equally recognizes and fortifies the authority of chiefs in managing customary land. Furthermore, the Draft Land Policy published in by the GRZ in December 2017 also ascribes to this role by traditional leaders.

From the foregoing, it can be noted that the administration of customary land is rightfully placed in the arm bit of traditional leaders.

Regarding Transparency of Customary Land Administration in Zambia, I would love to approach transparency in two fronts; firstly, in having clear procedures to access land, and secondly in having no illegalities concerned.

  1. Having clear procedures:
  • The alienation of customary land in Zambia in the main, is transparent as it is devoid of bureaucracy and hierarchical systems, as is the case with state land management.
  • This transparency can be attached to none or limited involvement of chiefs themselves in granting occupancy rights to customary land but by delegation of these powers to their headpersons who over see the day to day alienation and administration of land.
  • Further, everybody knows the steps that are to be taken if one wants to occupy land, namely, approach the headperson where you want occupancy rights and get registered in the village register after paying the necessary homage.
  • In certain chiefdoms, like the Ndake Chiefdom of Nyimba District in Eastern Province, the Chieftaincy had as far back as 2011, published a Step-by-Step Guide in the procedure of getting land in that chiefdom, which basically are the steps outlined above.
  • The fact that a person gets land from the first contact (headman) cuts down the procedure and hierarchy, creating a quick and efficient land administration system, the Chief then endorses the consent given by the headperson in granting rights of occupancy to that person
  1. Lack of Illegality in Traditional Land Administration Systems
  • In a customary system, homage is paid at every level of the traditional tier, these are privileges due to every lord or sovereign world over as a courtesy or token of recognising that lordship
  • In Zambian traditional systems, such tokens could be chickens or other articles of food such as cooking oil.  It is such gifts that protagonists argue as illegal and underhand and corrupt methods of land administration in the customary system.
  • This author vehemently argues that such tokens, cannot amount to corruption, as it is a long-established tradition that when visiting a sovereign, you carry tokens to them.  Additionally that each person knows the standard and value of this token, though unwritten but respected universally across that culture, culminates into its intrinsic acceptability by that culture, and cannot be questioned by another person outside that culture with different moral and cultural background and typified as a corrupt practice, hence rendering a whole customary system as lacking transparency. However this argument does not intend to rule out any possibilities of bad elements in the customary system, sporadic cases abound where traditional leaders have abused this trust.

While the Barotseland Agreement was very specific on the matter of land:

 

'In particular, the Litunga of Barotseland and his Council shall continue to have the powers hitherto enjoyed by them in respect of land matters under customary law and practice; the courts at present known as the Barotse Native Courts shall have original jurisdiction (to the exclusion of any other court in the Republic of Zambia) in respect of matters concerning rights or interest in land in Barotseland. Provided that nothing in this paragraph shall be construed as limiting the jurisdiction and powers of the High Court of the Republic of Zambia about writs or orders of the kind at present known as prerogative of writs or orders'. [i]

 

The Western Province (Land and Miscellaneous Provisions) Act No 47 of 1970, removed the Litunga’s powers over land, wildlife and natural resources and vested them in the President, all land in the Western Province being ‘Hereby vested in the President as a Reserve within the meaning of and under the Zambia (State Lands and Reserve) Orders 1928 to 1964’. 

 

 


[i] “THE BAROTSELAND AGREEMENT 1964.” Barotseland.info. 1 May 1964. Web. 26 Mar. 2017. http://www.barotseland.info/Agreement1964.html

 

All land is vested in the president of Zambia - so the amended constitution of 2016 confirms, and the Land Commission ‘administers, manages and alienates all land on behalf of the president’.

I calculate that Zambia is demarcated as follows: customary area 70%; national park 8.6%; national and local forest 9%; and state land 12.4%. In an article, I had stated that customary land made up 94% of the country – a mistake.[1]  If the estimate in 2016 by Sitko et al that customary land takes up 54%, then a massive landgrab by the state has occurred.[2] Customary area is divided into open area and game management area (GMA), the latter taking up 20% of the country, more than national parks and national forests put together. The GMAs are of course actually under the control of the government, who lease them out for photo and hunting safaris, and customary area as a whole for mining and industrial agriculture schemes – state land by any other name.

But all this will change. The advancing global climate catastrophe, the destruction of wildlife and ecosystems, will see to that. The IPCC report of 8 October 2018, Global Warming of 1.5C, declared that the next 12 years will decide mankind’s future, placing it in an Anthropocene framework. There is no time to lose.

The world's capitalist system is broken, the future lies with the survival strategies of villagers in the chiefdoms, with Cuba, with ecosocialism rather than Big Corporate America and Europe. Each chiefdom now requires a citizens' assembly to manage climate change and deal with land and natural resource issues. As per Allan Savory’s recommendation in his Good Governance in Africa, where possible devolve and reduce government: the first-past-the-post party electoral system to be abolished, replaced with a unicameral chamber of deputies where customary area deputies are directly elected.

In Africa chiefs will have to remain as the guardians of the land and the 'living ancestors', a spiritual duty, leaving the assemblies to administer the chiefdoms.[3] And, as we know, the two-party system is broken, requiring that Zambia revert to an ecological state. This is inevitable if man is to survive.

So, any discussion on land administration, land system challenges, corruption, legal dispute mechanisms, and sanctions against chiefs, is a purely temporary bandage.

But a significant early move took place at Victoria Falls last month where the African Union and the U.N. Environmental Programme (UNEP) held a meeting attended by 40 customary communities and NGOs from 12 African countries (including members of the Zambia CBNRM Forum).[4] At the conclusion of the meeting they issued the following statement:

Goals

Noting increasing rural poverty across the continent, loss of wildlife and habitat, lack of inclusion of communities in decision making and lack of rights, our goal is to reset the agenda for community-based natural resources management to:

- Reduce poverty at household level;

- Turn wildlife into a rural economic engine;

- Achieve self-determination and security of rights and tenure; and

- Develop strong community institutions to govern wildlife sustainably.

Solutions and way forward

With consideration of the above arguments, we the communities of Africa propose the following as the way forward to achieve a New Deal:

- Recognize community rights over the ownership, management and use of resources - Strengthen community governance and institutions

- Build and enhance local capacity of communities to govern and manage natural resources

- Recapitalize the communities and their natural resources including across boundaries

- Ensure that community voices are heard in shaping policy and decision making

– from the local to the global level

- Strengthen evidence-based adaptive management, incorporating indigenous knowledge

- Promote investment partnerships in a community-owned wildlife economy

- Ensure that a full and fair share of benefits from the wildlife economy flow directly to the communities

- Change the development model from doing things for communities to financing well-governed communities to do things for themselves

 

  1. Transparency of land administration

 

There is no transparency. Unfortunately the British handed over a territory in 1964 to an executive American-style presidency. The formation of chiefdom assemblies is essential. If not, villagers holding usufruct will continue to be kicked off their land; as happened with the Luembe chiefdom land I had converted into trust land for the benefit of 1200 villagers, and then sold by the chief to a trader, the villagers kicked off, their sacred groves left untended. Which is why my friend Chief Chibesakunda reached back into the past and called for the re-introduction of the Native Authority Act of 1930 and the Native Authorities Ordinance of 1936 to protect chiefdoms from the depredations of the state, landgrabbers and the donors by returning the full ownership rights of traditional leaders and their people to the land.

 

 

 

 


[1] I.P.A. Manning, The Landsafe Socioecological Development Model for the Customary Commons of Zambia: Evolution and Formalization, 52 Nat. Resources J. 195 (2012). 

https://digitalrepository.unm.edu/nrj/vol52/iss1/7

[2] Sitko, N. J., & Chamberlin, J. (2016). Land Use Policy The geography of Zambia’s customary land: Assessing the prospects for smallholder development. Land Use Policy55, 49–60.https://doi.org/10.1016/j.landusepol.2016.03.026

[3] Kaoma, Kapya John. Ubuntu, Jesus, and Earth: Integrating African Religion and Christianity in Ecological Ethics. PhD dissertation, Boston U, 2010.

[4] Africa’s Wildlife Economy Summit Hosted by the African Union and United Nations Environment Programme Victoria Falls, Zimbabwe - June 25, 2019: Voices of the Communities: A New Deal for rural communities and wildlife and natural resources

 

Question 2: What are the challenges in a context where the land system is governed by both customary and state authorities?

The first challenge is that customary tenure governance is not codified and depends to a large extent on the goodwill of the traditional authorities. It has generally worked well but with the advent of Large Scale Land Based investments, the temptation to “offer” land to the investor at the promise of job creation is huge. This sometimes can lead to displacements of the same people who are supposedly to be given jobs. On Stateland, the Lands Act provides for the vestment of land in the President and the Commissioner of Lands acts on behalf of the president. Currently, the Commissioner of Lands allocative power can be abused as there is no proper allocation system.

Emmanuel Tembo makes yer another important submission that Chiefs might be driven by rational objectives of job creation and/or rural transformation. Some of this equate to public narratives of development being equated to foreign investments. A lack of rural development and poor state support means Chiefs can take matters in their own hands. But again this is where the problem really is.

Official but outdated statistics suggest that 6% of Zambia’s land is state land and the remaining 94% is customary land.  The existence of a dual land tenure system presents several challenges for land administration. These challenges relate to the following:

  • An incomplete legal cadastre - Current land registration law is limited to state land while customary land is not subject to the land registration system.
  • An incomplete fiscal cadastre - While state land is subject to land rents and taxes, there are rents or taxes levied on customary land.
  • A differentiated system - With statutory tenure having well defined boundaries and superior rights than customary tenure. Fixed boundary system, registration of title, collateralization are all exclusive to statutory tenure. While customary tenure has general boundaries, rights limited to use and occupation with no title, cannot be used as collateral.
  • Lack of clarity and overlapping rights and mandates - which can sometimes be difficult to disentangle in instances where state developmental interests are occurring on customary land e.g. Game Reserves, Forests Reserves, Mining interests, establishment of new districts or extensions to existing districts which have to occur in customary land.
  • One way conversion - Currently land can only convert from customary to state land. There are no provisions to give land back to customary authorities even in instance in which the land has not been used for the purpose for which it was converted.

I calculate that Zambia is demarcated as follows: customary area 70%; national park 8.6%; national and local forest 9%; and state land 12.4%. In an article, I had stated that customary land made up 94% of the country – a mistake.[1]  If the estimate in 2016 by Sitko et al that customary land takes up 54%, then a massive landgrab by the state has occurred.[2] Customary area is divided into open area and game management area (GMA), the latter taking up 20% of the country, more than national parks and national forests put together. The GMAs are of course actually under the control of the government, who lease them out for photo and hunting safaris, and customary area as a whole for mining and industrial agriculture schemes – state land by any other name.

As we discuss land issues, it is very important to be reminded of the biblical/African view of land management. Are you the E. Mutale who published the article in which was presented a Biblical View of Land Policy, views in close accord with those of indigenous Africa? Contained in it are eight land management principles (ECCLESIA):[1]

 

1. Equitable, Effective and Efficient - Fairness and justice should be characteristics of the land allocation system. Land management must be capable of producing desired results at a minimum cost to the public and the environment.

2. Community Origins and interest - A land management system must reflect the value systems and interests of the people it serves and not be an alien imposition.

3. Cheapness and Completeness - Original grants of land should be cheap enough to be afforded by all. Failure to which means-tested selective subsidies should be considered to enable the poorest of the poor in society to access land. 

4. Leasehold - There is a loose coincidence of thought on the ownership of land between the biblical view and the African view. They both acknowledge that absolute ownership of the land does not vest in the individual. To the one, it vests in God, to the other, in the community. The leasehold principle complements the equity principle by providing potential opportunities for redistribution.

5. Exclusive use-rights - The principle of private use-rights is widely practised in Zambia, more so in urban areas. As for rural areas, families and individuals tend to have exclusive use-rights to their fields.

6. Security of Tenure - A clear definition of boundaries, state guarantees, a system of registration, and an independent and accessible legal system are essential for securing use-rights

7. The Intrinsic value of land - While accepting the classical economic concept of the use and exchange value of the land, land management must be extended to embrace the intrinsic value of land. Land should not be valued only in relation to its use and exchange value, but also for its own sake.

8. Accessibility to all - Land should be made available to all. Mechanisms need to be worked out on who qualifies, where they qualify, when they qualify and how they should be enabled to access the land. Ensure that people do not lose their only land through being forcefully dispossessed or distress sales, or if they do, they are enabled to redeem their land.

 

I consider this a very important article; No. 6 says it all regarding security of tenure – for this is what it truly is all about, that and the protection of Mother Earth.

On 12 May 2017, Hilal Ever, the UN Special Rapporteur On the Right to Food weighed in with the following: [ii]

 

I strongly encourage the Government to adopt a gender-sensitive, inclusive National Land Policy based on human rights principles. This shall ensure an effective land administration system and efficient enforcement of the existing laws and regulations concerning the allocation, sale, transfer and assignment of land. Customary land rights should be put at an equal standing with state land to protect the rights of those living on customary lands.

 

 

 


[i] Mutale, E. ‘A Biblical View of Land Policy’ South African Journal of Surveying and Mapping’, Vol. 23, Part 6, Dec. 1996, pp325-332

[ii] Preliminary Observations of the Special Rapporteur on the right to food, Hilal Ever, on her mission to the Zambia capital, Lusaka. 3-12 May 2017.” UN Human Rights, 12 May 2017. Web. 18 May 2017. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?

 

I have just read the early 2018 discussion and see your comment on the codified biblical approach to land issues. So, have you placed! You have made a very important contribution on a crucial issue, something much gone out of focus in the Global North.

Emmanuel Mutale notes a very important feature of conversion of customary land to state land as ‘one way traffic.’ In his own words:

“Currently land can only convert from customary to state land.”

I wonder whether provisions to covert statutory land back to customary arrangement upon discovery of corruption can greatly deter any corruption.

It may not deter much corruption, but it will certainly bolster customary areas. The state is the main alienater through the process of taking land from the customary commons and declaring them national parks and national forests of one kind or another. Many of the forests have been invaded by people who don't necessarily fall under a particular chiefdom. This is also happening in some national parks. As for the game management areas, they are just rent baskets for government, the chiefdoms receiving little benefit.  It is overdue for many of these areas to be taken over by the original chiefs/villager assemblies. And where chiefs have alienated land without the permission of the people, they should also be returned.

The biggest challenge of having a dual land administration system is that:

  • Both state and traditional leaders take Land as a resource that generates revenue; however for the state, guidelines on land access and payment of land rates makes it easier for land owners to comply other than in customary land where the royalties required for one to access land are not fixed and may vary from person to person and when the resources are collected, there is no transparency or accountability on how they are being managed or how they are contributing to chiefdom development. The common practice is that everything received by the chief belongs to the chief.
  • Despite both systems of administration being recognized in the Zambian constitution and land laws, state land is considered more secure because title deeds stand as proof of ownership in the courts of law and elsewhere whereas the customary land certificate though valid is not as secure and recognized as the title deeds. (This makes one wonder why two systems are recognized when politically one supersedes the other while traditionally the other system reigns supreme)
  • Traditional leaders hold mystical powers which threatens citizens to challenge them even in cases where they are oppressing the people hence despite customary land being termed as free, people prefer to buy it off from the chiefs and convert it to state land for security reasons. As a result, customary land is reducing at an alarming rate.
  • To date Zambia has no land policy because the dual land administration system has made it difficult for the two interest parties to agree on the content of the policy in terms of power sharing, who hold more authority over the land and who should have the final say. As it is today, all activities taking place in customary land require consent of the chief/chieftainess.

The corruption of the chiefs - due to accounting issues - did undermine both Indirect Rule and Zambia; but this is not sufficient to give way to imperialism. We just need to make some changes. It is of the utmost importance that customary area is fully protected. It is at the heart of African spirituality and ecological protection. The state is just a plunder mechanism which has brought on climate destruction. Do away with chiefdoms at our peril. Yes, sorcery is a massive problem, but there are mechanisms in place to deal with it, though weakened greatly by the colonial process. We need to create customary assemblies soonest. The chiefs can then wrestle with sorcery as the guardians of the land and the 'living ancestors'. Customary land is the only secure thing in Zambia - the rest is but a market.

Nsama makes an interesting observation: “As a result, customary land is reducing at an alarming rate.” 

In stretching this point, I can argue that now more than ever land grabbing present the biggest challenge facing Zambia. Chiefs will need protection from such influences.

An inquiry is urgently required to establish what percentage of land in Zambia is customary area. The Sitko et al paper of 2016 needs to be thoroughly investigated, and if verified, explanations obtained of where the land went. The House of Chiefs should have been invited to contribute to this discussion, as well as the Auditor-General's office.

  • There are fewer such incidences in Zambia, as mostly, wherever a government institution exists, it automatically becomes state land, and changes tenure. However instances exist where this is not clear as documentation may be missing or lacking to verify it.  In such instances the foremost challenge is encroachment.
  • Encroachment leads to squatter communities which in turn leads to unplanned settlements and attendant urban planning challenges
  • However, in terms of land Administration, there always is a pull between the traditional leaders and the state. Current situation between Chieftainess Nkhomesya Mukamambo II of the Soli people over the Chikupi Community in Kafue District and the Mikango Barracks land issue in Lusaka District.
  • This challenge arises from lack of a clearly outlined tenure conversion system and verifiable and well-known and defined boundaries.
  • There seems to be no, or less readily available literature on this, but these experiences are shared from the author’s own over eight years of experiences handling and resolving these matters, though documented, but not in an academic fashion
  • Other cases involve passing of by-laws by local municipal or Local government that proscribe geographical limitations for expansion of township boundaries, without taking into consideration the customary communities that will be swallowed within that circumference.

Chief Nkomeshya (chieftainess is redundant, surely: Presidentess?) is a remarkable and resolute leader as she stands up for her people. The push is between the neoliberal state, and the ecological community. They don't kamba the same language - nor should they.

One major challenge for governing both customary and state authorities in the same country context relates to unclear mandates and how to deal with overlaps. In Zambia, traditional leaders exercise custodial authority over land, but state authority supersedes which creates confusion between the two spheres of influence. Zambia suffers from lack of standardisation in customary tenure systems

However, dualism where the land system is governed by both customary and state authorities has its own advantages. The existence of a large rural and agricultural based economy renders land administration to customary tenure system in most parts of the country as opposed to statutory leasehold. This system speaks to majority Zambians, their culture and historical experiences. Investors on the other hand benefit from statutory land tenure seen as guaranteeing their investments.

AS Hilal Ever, the UN Special Rapporteur On the Right to Food said:

 

I strongly encourage the Government to adopt a gender-sensitive, inclusive National Land Policy based on human rights principles. This shall ensure an effective land administration system and efficient enforcement of the existing laws and regulations concerning the allocation, sale, transfer and assignment of land. Customary land rights should be put at an equal standing with state land to protect the rights of those living on customary lands.

  • The unnecessary red tape and bureaucracy in the service delivery also breeds corruption.
  • The duality / legal pluralism make registration more costly and time consuming
  • However, these standards fall short of specifying the regulations for mapping customary rights and interests and the administration of customary lands outside the land registries. The customary lands are governed by the customs and traditions of the area by the Traditional authorities, usually through their CLSs ].

In some regions in Ghana such as parts of the Brong Ahafo, Eastern, Northern and Upper Region and in some cases in the Greater Accra Region, the lands are vested in the State. This is where administrative corruption or lack of transparency comes in. Under what moral or legal grounds would the state actors like Divestiture Implementation Committee(DIC) & Land Commission(LC) divest several thousands of vested lands to private individuals/companies when the state has not paid promptly and adequate compensation to the owners.

Why would the Military in conjunction with the State Land agencies, knowingly encroach on parts of stool/family lands adjourning acquired lands and use them as buffer zones to the detriment of the individual owners?

On the part of customary authorities, even though Article 36(8) of the 1992 Constitution clearly states under the Economic Objectives of the Directive Principle of State Policy that the State shall recognise that ownership and possession of land carry a social obligation to serve the larger community and that managers of public, stool, skin and family lands are fiduciaries, the state actors in most cases connive with some of the heads of families and chiefs to deprive the people of their lands and livelihood without accounting for them.

Question 3: What are the corruption risks in the allocation and registration/conversion of customary land to investors?

The major risk of allocation is that it is dependent on the Chief’s consent, whose consent is assumed to have arisen after consultation with his/her subjects. This assumption is not necessarily correct as it sometimes happens that a traditional authority can be bribed to sign off the consent. The President’s power through the Commissioner can also be abused if it is decided that the investment is in public interest i.e. the President can allocate any piece of land anywhere if it is deemed to be in public interest. This can be subject to abuse.

Emmanual unpacks two somewhat difficult processes: "... a traditional authority can be bribed to sign off the conset" .....and "the President can allocate any piece of land anywhere if it is deemed to be in public interest." How public interest is defined is unclear. Reconsiling these processes would be important in shedding light on land transactions. 

The corruption risks in the allocation of customary land arise from the intrinsic nature of customary land administration system and the recent drive for large scale land investments:

  • Trusteeship principle in which the land is held by the chief with very limited safeguards to ensure wider community consultation before land is allocated.
  • Absence of customary land regulations leaves the allocations of land to the open interpretation of customary law and practice by traditional authorities
  • With the opening up of the land market after the 1995 Land Act and the increased pressure for land-based investments, there is a huge market for land

  • The major corruption risks are that, whilst the people who are affected by investments have legal rights to the land on which they dwell, the traditional leader once given an attractive package signs off the land which the investor is interested in and because investors are aware of this weakness, they present chiefs/chieftainess with gifts that make it difficult for them to think about the consequences of signing off the land.
  • Local people who want to hold on to their lands also begin presenting traditional leaders with gifts to obtain consent for conversion. This disadvantages the vulnerable people who have nothing to offer the chief as they become subject to displacement.
  • Currently, because of the attempt to place all land management to the state through the land policy which failed to be validated because chiefs rebelled and walked out on the process, traditional leaders have agreed to stop consenting documentation for land conversion, this position has increased the corruption rate because obtaining consent now requires a hefty package, which most foreign investors and government officials are able to afford.

Nsama makes an interesting point: "....traditional leaders have agreed to stop consenting documentation for land conversion, this poistion has increased the corruption rate because obtaining consent now requires a hefty package, which most foreign investors and government officials are able to afford." This is interesting as it highlights the fact the two spheres of influenc are not distinct. Rather, they shape and reshape each, raising challenges for transaparency.

 

  • Large-Scale Land Based Investment in Zambia has always been problematic. As it usually involves of customary land, as State land is limited by size. This almost always leads to conversion as no investor feels secure developing customary land, this results in communities being displaced. In a 2017 report, Human Rights Watch documents (Documentary released on October 25th, 2017 found at: https://www.hrw.org/news/2017/10/25/zambia-commercial-farms-displace-rural-communities) that  rural residents are  displaced by large commercial farms in Serenje district, by some commercial farmers acquiring thousands of hectares of land and forcibly evicting rural communities that have farmed the land for generations.
  •  The report cites government failure in protecting the rights of these communities, but rather only focused on promoting large-scale land-based investments in trying to diversify the economy.
  • A 2013 report entitled LARGE-SCALE LAND ACQUISITIONS: EXPLORING THE MARGINAL LANDS NARRATIVE IN THE CHITEMENE SYSTEM OF ZAMBIA (Laura German, Davison Gumbo, George Schoneveld 2013) intimates that forests and mixed-use woodlands are often targeted by government for agricultural expansion to leverage benefits from land-based investments. It goes further to allege that the identification of such areas is more often driven by perceptions than evidence, with these perceptions grounded in optimistic views about land availability and discriminatory views of customary land uses.
  • As pertains the conversion process (Laura et al 2013) reports that in contrast to other African countries, the Zambian government actually acquires the land from customary authorities irrespective of any interest expressed by prospective investors, resulting in a permanent shift from customary to state land even in the absence of investment.
  • HRW cites this as a challenge. In the report cited above, Government officials say all farm block land was long ago converted from customary to state control. Some advocates and traditional authorities say the processes were so faulty that the conversions should be considered void.
  • But legally, government and investors have specific procedures to follow over these investments. They need to consult affected communities, provide appropriate compensation, adhere to resettlement standards, assess environmental impacts, and comply with relevant laws. Traditional leaders must also consult affected communities before agreeing to land transfers. Government officials should ensure that investment projects comply with the law. (Lands (Customary Tenure) (Conversion) Regulations.)
  • In another vein, the law through a Statutory Instrument, regulates the amount of land a traditional leader can give to an investor without consultation of government – 250 Hectares, but in some instances traditional leaders have exceeded this limit, causing uproar about abuse of power and possible linkages to corruption.

  • The buyer pays undetermined fees to the allocation committee without receipts and payments will not be disclosed to the chiefs.
  • At any point in the registration the interested party will be made to pay money before the document is processed
  • Undetermined and undocumented procedures
  • Other land uses are not be informed to grant their consent, for the change of use.
  • Just a few family members  will be privileged to enjoy the benefits derived from such large scale land acquisitions
  • Unnecessary Delays in attaining registration

Chiefs and family heads are custodians of the lands over which they superintend and hold them in trust for the larger community but as fiduciaries, in most cases they are expected to seek the consent, concurrence and approval of the other principal members before disposing of such large tracts of land to so called investors, most of whom are nothing but land speculators.  These ‘vampires’ pay peanuts to the customary custodians and secure the land for future sale at prices, at times 1000 times how much they paid for the land.  The danger is the lack of literacy in so far as the economic value of land is concerned.  Normally it is staff of the land agencies who serve as the linch-pins between the investors and the customary land owners.

Corruption in land sector thrives and persists for 2 main reasons- one,  a broken opaque system riddled with inefficiency that breeds frustrations on the users; and two,  the drivers of the system who irregularly benefit from the broken system, corruption and who would do anything to frustration efforts at fixing the system.  solutions then must address these 2 areas. while technology could fix the system, the people power is needed to tackle the human angle.  under the customary land regime, the communities whose lives and livelihoods depend on the land always lose in the face of corruption. oftentimes, they do not understand the systems under and through which the land transactions are done between their traditional leaders and the players who gain an undue hold on the land. 

Building the people's power to understand their rights and hold their leaders to account is thus critical.

 

Zambia must transform itself, its customary commoners banding together under an Ubuntu Christian guardians culture to fight such as dam construction, mining, landgrabs, carbon offsets, fish and game commercial poaching, seed colonialism, soil destruction and poisoning, and state capture of the chiefdoms natural resources. And, it must fight global warming, and the biodiversity extinction and ecosystems ecocide by vigorously asserting its eco-religious traditions and commoner tenure rights of old. In short, a transformative revolution is required. The IPCC report of 8 October 2018, Global Warming of 1.5C, declared that the next 12 years will decide mankind’s future, placing it in an Anthropocene framework. There is no time to lose. I have prepared a draft Manifesto for Zambia in which I write:

1. Customary area secured and its renewable resources by providing all customary land tenure – whether de jure or de facto - with full legal clan ownership on an equal footing with that of state land, with all rights and responsibilities over renewable natural resources. The reason for this is that indigenous customary people safeguard the carbon bank and its wildlife, and they use no energy. The UN’s UNFCCC to immediately establish a program for the full legal recognition of customary rights to land presently held under de jure or de facto land tenure, to be fully launched at the first global stocktake - presently set for 2023, and in broad terms to follow the policy document that the consortium, Land Rights Now, has put forward. The full implementation of the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act No. 16 of 2016 is essential. Under section 27: Subject to this Act, a traditional community has the following rights over its genetic resources: the exclusive right to regulate access to its genetic resources; an inalienable right to use its genetic resources; the exclusive right to share the benefits arising from the utilization of its  genetic resources; and the right to assign and conclude access agreements. Unlike Target 16 of the Aichi Goals that wishes to ensure that ‘Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their utilization is in force and operational, consistent with national legislation’,[47] the ‘Protection Act’ is law and clear on the rights of clans and tribes in occupation of customary area. But it must cancel out much of what is in the Wildlife Act 2015, i.e., a landgrab of the rights of customary people to their land and renewable resources.

2. Customary commoners to use the public trust principle and the rights of customary tenure as predating the colonial two-party parliamentary system to secure judicial protection for the future commoners and the proletariat existing in the degraded towns.

3. The UNFCCC’s REDD+ and the state’s landgrab of customary area for agriculture, and other commons enclosure schemes to be abolished, and an investigation made of land alienations so that commoners recover corruptly alienated land and resource rights.

4. The use of land chemicals banned, and the implementation of an agroecological strategy where the 100 drought resistant traditional seeds of history (sorghum, millet, bulrush millet, cassava and the non-hybrid maize) are grown, delivering villagers full protection from the GMO seed/herbicide predators, and where the state is forced to reform the hybrid maize/nitrogen fertilizer and herbicide tyranny. In addition, very strict controls on the import of chemicals to be implemented along with a ban on maize exports.

5. Chiefs to serve purely as guardians of the clan and tribal culture, and as the supernatural custodian of the land and rain. Sadly the government does not take into consideration the supernatural ‘rights’ of chiefs exercising their powers under traditional law. Chiefs therefore will stand aside - as does the British Crown -to allow a Guardians’ Assembly to actually administer the chiefdom.

6. First Nation People such as Bushmen and Pygmy (Twa) to be accorded full land usufruct and resource user rights in their own chiefdom.

7. Each chiefdom and municipality to establish a citizen’s assembly.

Zambia is actually very far ahead of the global north - apart from the indigenous peoples of North America - in that they live an ecosocial life; apart, that is, from the towns.

Question 4: Implementing a legal dispute resolution mechanism in the customary land administration would it help to improve the management of customary land?

Of course, it would. Which is why Chiefdom/Guardian assemblies are essential. The present system does not work: it fails to protect customary area.

I understand what ipamanning is suggesting but I wonder whether attention should be paid to whether local people would access dispute resolution mechanims. I say this in the context of Land Tribunals in Zambia that somewhat remain less effective.

Traditional authorities generally have a system for dispute resolution which have stood the test of time. However, it is also possible if there is change in leadership at the traditional level that one leader can overturn what the other previous leader would have decided in terms of allocation. This leads to disputes and evictions sometimes. To make legal dispute resolution mechanisms on customary land will require the land policy to be accepted first and for the system to be less expensive.

In addition to allocation and administration customary land, there already exists in Zambia,  traditional courts presided over by chiefs and their advisors set up to handle conflicts and disputes based on prevailing customs and practices. The Chiefs' Act recognizes traditional rulers, and therefore by extension, traditional courts, which are an integral part of traditional governance. In addition, statutory recognition of traditional courts can be inferred from the following Section 50 of the Local Court Act:

….nothing in this subsection shall be deemed to prohibit any African customary arbitration or settlement in any matter with the consent of the parties thereto if such arbitration or settlement is conducted in the manner recognised by the appropriate African customary law.

The existence of these traditional dispute resolution institutions however, does not seem to have had a major impact on reducing land disputes.

Between 2014-2017, the USAID-funded, Tenure and Global Climate Change Programme in Zambia’s Eastern Province, documented in the region of 20,000 customary lands in 5 chiefdoms. Anecdotal evidence from the chiefs suggests that they had benefited greatly from a reduction in land disputes. While a major objective of this exercise was to map and document household claims to individual or family land, a necessary component was land dispute resolution. It is the coupling of the two – mapping and documentation alongside dispute resolution mechanisms - which might have combined in nailing down the certitude of land claims and thus reducing land disputes.

Yes it would, because currently especially in the mining communities (Luapula Province) Chiefs out of frustration of losing out on mineral resources have taken it upon themselves to charge miners, including local people who are working illegally in the sand and stone quarries. In cases where mines fall in customary land, traditional leaders are creating their own barriers and asking people to send tribute to their palaces failure to which the land will be repossessed. Without a legal dispute resolution mechanism in place, people are now living in fear of both government and traditional authorities. In some cases this has increased lawlessness as rebellious villagers resort to taking law into their own hands. Once implemented the process would help to promote transparency and accountability in the management of customary land and also help to uphold human rights in line with both the international and national laws.

  • Contrary to popular belief, customary dispute resolution systems are the most efficient and fast track judicial systems in Zambia, this is due to accessibility; cost efficiency and lack of procedural respectabilities which is the norm in the formal legal system
  • In a study done by Petauke District Land Alliance( 2018), this author established that Traditional leaders have historically used customary law to resolve land disputes, marital matters, succession and inheritance disputes and many more. To this day, the institution of traditional leadership still employs customs to resolve disputes. As a result, customary law continues to play an integral role in the resolution of disputes in communities. Traditional courts are established in accordance with the various traditional governance systems in the country.
  • People their own volition elect to go to traditional courts for justice, because customary law is premised on the principle and spirit of voluntary affiliation, and that its application is accessible to those who choose to live in accordance with its evolving values and abide by its practices and customs. Further, many who subscribe to customs and practices embedded in customary law voluntarily elect to have their disputes resolved in terms of their customs and practices in traditional courts.
  • A Dispute Resolution Mechanism in a Customary system can work well due to the following reasons among others:
    •  Accessibility – these courts are accessible anywhere as a litigant can walk to the nearest traditional leader and lodge a complaint
    •  Flexibility – the court system is so flexible that no stringent arduous process of filing is required for the matter to be properly before the court
    •  Quick disposal of matters – matters are resolved amicably and in a timely and efficient manner as no time is wasted. Mostly a matter is resolved within a week of its lodging
    •  Principle of reconciliation – in resolving disputes, there is promotion of the principle of reconciliation, because living in harmony is for the communal good and high priority is placed on the maintenance of human relations
    • Traditional governance system – these courts are part of the governance and administration system.

  • The ADR concept introduced in the Customary Land Administration is helping particularly women and marginalized to seek redress should hitherto could not have contested their cases in the law courts.
  • The legal dispute resolution mechanism do no actually deter land owning groups to be corrupt because the delays associated with the legal systems.
  • Many land cases in the law courts has been over 50 years without judgement and rendered such lands and property unproductive.

Yes it would help.  This had been the dispute resolution mechanism that had managed land tenure in Ghana for centuries.  The recent directive by the Asantehene Otumfuo Osei Tutu II to all Asante chiefs to withdraw all land cases pending before the courts for customary settlement, under the pain of destoolment has worked magic in the Asante Kingdom.

Yes it would, alternative dispute resolution can help mitigates dispute over resources. The alternative dispute resolution will include arbitration and mediation. 

An integrated systematic approach to dispute resolution can facilitate fair and equitable conclusion to resources claim dispute. 

Tue Institutions and mechanism exist for dispute resolution are the Community, Civil Society institutions Court, Commission, and mechanism. Community, including Customary dispute resolution Institutions will otter be the first line of defense to protect resources rights, especially if the dispute is between Community members over Land. 

Thanks to all the contributors to this discussion. This is a valuable learning space with opportunities to learn from the experience of Ghana, Zambia and Kenya. One of the challenges we face in South Africa relates to the collapse of land administration particularly in former 'reserves' and 'bantustans' established as part of colonial conquest and consolidated under apartheid. One of the ironies of South African geographies of inequality is that many of these overcrowded and impoverished former bantustans have been found to have rich mineral deposits. Uncertainties over land tenure and how land rights vest in these areas have created spaces for mining houses to enter into corrupt and exclusive arrangements with traditional leaders which have led to further dispossession and marginalisation of local residents.  For more information on the South Africa see the collation of news on lands rights and mining on knowledgebase.land the website and information service run by Phuhlisani NPC on all aspects of the land question in South Africa.

It would be great if contributors to this discussion could reflect on the role of traditional leaders, the allocation of mining rights and the distribution of benefits and the extent to which local land rights holders are enabled to exercise free, prior and informed consent in the countries which are the focus of this discussion.

 

Mining must be severely limited, strictly controlled, and managed, with citizens - customary villagers at the front of the queue - benefitting directly from the proceeds along the lines of the Alaska Permanent Fund. For many years the mines have not paid the requisite taxes, nor dealt and compensated for the horrendous pollution. Here again, let us see citizens' assemblies in action.

Question 5: Could sanctions against chiefs when they deliberately violate the land use could make a difference?

For Liberia case, there is no legal backings that give right to the state to sanctions Traditional Leaders hlwho violates land use. 

The Traditional leaders are recognized as the custody of the land. Liberia Land Law provides that, Traditional practices on land should be recognized formally by laws in order to secure tenure right for the young generation. It is believes that customary land is owned by the Customary authorities. Liberia Land law divided the Land into four categories namely, Private land, public land, Government land and Customary land. 

Customary land is use and manage by Customary authorities. Therefore, there is no legal means to sanctions traditional leaders who violates Customary land use.  

 

Per the 2018 Land Law, customary land in Liberia is owned by the communities (not customary authorities) who have claimed it for generations. Communities must form governing bodies to make decisions about their land, including concessions. It's too early to know what will happen to customary authorities who violate the law, but hopefully massive sensitization on the Land Law will make the people aware of their rights. 

What sanctions? And why just the chiefs? What about the president, the Land Commission, etc? The system is broken and the global catastrophe advances though it has escaped mention in this discussion. Villager assemblies must assume responsibility for the temporal affairs of a chiefdom, the chiefs concerned only with matters eternal. We need true democracy in chiefdoms and in the nation. This be the first step; followed by:

1. The Guardians of Nature to be resuscitated. As Zambia is a declared Christian nation it is recognized that the Edenic Covenant holds man accountable for the care of Mother Earth.

2.As per Allan Savory’s recommendation in his Good Governance in Africa, where possible devolve and reduce government: the first-past-the-post party electoral system to be abolished, replaced with a unicameral chamber of deputies where customary area deputies are directly elected: ‘The country would be divided into electoral districts or constituencies much as today but with the district boundaries determined by the Judiciary and not politicians. The aim would be to prevent manipulation of the voter’s roles, constituency boundaries and more by the political parties in power. Any individuals could stand for election if their application to do so was supported by a certain number of signatures of people resident in that constituency (assume 2,000 for illustrative purposes).  These individuals would appeal for the vote in their area on the basis of their character, reputation and record in the community and their desire to serve their community and nation in this capacity. They would raise their own funds from supporters and stand on their merit. Any candidate for Parliament found to be financially supported by any corporation or special interest group would be disqualified and never again allowed to stand for public office’.

And so on...

The traditional governance system, which is the environment in which many traditional rulers, is not a transparent environment (at least in most local governance systems in sub-Saharan Africa). This, in itself is not a negative thing because traditional rulers are usually a group of individuals who are the custodians of culture and tradition, and are usually enthroned to do this by their involvement in rituals which are imbued in secrecy (and not always transparent). My point is that secrecy is part and parcel of the traditional rulership in their governance environment, so many of them are not particularly disposed or trained to operate openly in matters of local governance. So, many of them lack the skill for open operations, and most of them therefore are not disposed to operate openly (and this is, maybe to them a normal way of life). 

With this kind of attitude, traditional rulers are susceptible to corruption when operating in the conventional land administration environment because they exploit secrecy as a tool to hide activities that may not be deemed acceptable (e.g. corrupt practices). May be, what we need to do is to provide capacity development training in transparent practices to enable them learn to operate more openly. This may also demand for a change in the way traditional rulership environments are structured.

The traditional governance system, which is the environment in which many traditional rulers, is not a transparent environment (at least in most local governance systems in sub-Saharan Africa). This, in itself is not a negative thing because traditional rulers are usually a group of individuals who are the custodians of culture and tradition, and are usually enthroned to do this by their involvement in rituals which are imbued in secrecy (and not always transparent). My point is that secrecy is part and parcel of the traditional rulership in their governance environment, so many of them are not particularly disposed or trained to operate openly in matters of local governance. So, many of them lack the skill for open operations, and most of them therefore are not disposed to operate openly (and this is, maybe to them a normal way of life). 

With this kind of attitude, traditional rulers are susceptible to corruption when operating in the conventional land administration environment because they exploit secrecy as a tool to hide activities that may not be deemed acceptable (e.g. corrupt practices). May be, what we need to do is to provide capacity development training in transparent practices to enable them learn to operate more openly. This may also demand for a change in the way traditional rulership environments are structured.

This depends on how the law would be crafted. Currently in Zambia the Urban and Regional Planning Act of 2015 requires that local area plans are prepared in all areas (state and customary) and that such plans will be monitored by the local planning authority. Any violation, it is expected, when the plan is approved would attract sanctions irrespective of who violates them. However, the actual regulations have not been framed and it would be interesting to see how this would affect the Chiefs if indeed they were to violate a local area plan.

The Chief’s Act empowers the President to suspend or withdraw government recognition of a Chief in the interests of peace, order and good government. There is a therefore a wide discretion as to what might constitute a sanctionable offence. It could be argued that if a chief deliberately violates provisions of the constitution and other principal acts in relation to land administration, then this undermines good governance and might constitute a sanctionable offence.

While the President has from time to time exercised his power to suspend or withdraw government’s recognition, in practice this is often down to what is politically expedient. Chiefs have a huge amount of social/cultural legitimacy and government is often not prepared to be seen to be meddling in what are widely considered as matters of tradition and custom.

  • In the case where the state is transparent, it would make a difference yes, but as it where both houses need to be cleaned so that one is able to hold the other accountable. In the current manner in which land is being administered by the two systems, it would be very difficult for one side to hold the other accountable as each has their own weaknesses which need to be fixed.
  • However in the case where a legal dispute resolution mechanism which is fair and transparent is put in place with an independent integrity body which does not favor the administrators, sanctions against chiefs would help to protect citizens rights in customary areas and also reduce their powers and perception that land belongs to them but that they manage it on behalf of the Zambian people who reside in their villages.

Well said Nsama. I agree "both houses need to be cleaned so that one is able to hold the other accountable." To stretch your point is to argue that a focus on Chiefs should not conceal other areas that equally might need attention. 

  • Chiefs have a traditional hierarchy system of their own, usually, it is a Paramount Chief who metes out sanctions to erring sub-chiefs. Occasionally warnings are reverberated to indicate wrath to an erring chief in this regard.( As most recently Mwata Kazembe warned his sub chief over witchcraft and drunkenness among other- www.daily-mail.co.zm/mwata-kazembe-warns-chiefs/)
  • As this is done by way of custom, the only recourse for a non-customary procedure for an aggrieved party is by way of court process. The Constitution in Article 166 establishes that the institution of Chieftaincy is corporation sole, and has capacity to sue and be sued.
  • This provision opens recourse to any interested or aggrieved party to utilise this provision.
  • Moreover, the Lands Act Section 3 places all land under the President, this entails that a traditional leader is not at liberty to manage land in any way he feels, he is still under an obligation to comply to tenets of good stewardship.
  • So the response is in the affirmative, the regulatory frameworks put in place can help to sanction erring traditional leaders.

I agree with Raymond that "the regulatory frameworks put in place can help to sanction erring traditional leaders." I wonder whether this could potentially reshape the traditional hierachy system as you pointed out. Should this be the case, what then would be the implications for land administration? 

Sanctions against chiefs when they deliberately violated the land use can make a difference.  The Asantehene not long ago has destooled two very powerful chiefs for flouting the order about not suing anybody in a land related matter.  In addition he ordered them to render accounts to their elders for lands that they had disposed off. This has sent a shiver down the spine of many chiefs and family heads in traditional areas which fall within jurisdiction of Asantehene.

 

Land Corruption in Africa – A perspective from Liberia

M. Sahr Nouwah – Former Advocate- Liberia Land Rights Law 2018

 

1. Introduction 

 

From 2017 to 2018, I worked for an international organization in Liberia where I had to support national Civil Society Organizations; about 29 of them to advocate for the passage of the then Liberia Land Rights Bill. I became fully involved beyond support and at last, we won. Though I am a former advocate for that bill, I remain an advocate and very keen on Liberia as I know that the law has the potential to empower local communities, youth, women and the country at large. 

 

After resigning my post, I wrote an article on medium titled: ‘’Our Land is Not for Sales’’. The idea behind this was that while most often we blame ourselves for corruption, we also need to pay attention to those who are aiding and abetting the process. Of all land criminally owned in all African countries, those land forcefully taken by western/powerful investors could account for about 70% if we consider the situation in Southern Africa, West Africa and the East African region. 

 

While fighting and advocating for the Liberian Land rights law, I was able to learn few things. For all the land criminally transacted, it is not actually those who we often blame that are the problem. I first realized the power of the legal profession in Africa and how all transacted land in Africa went through the law or was supported by a lawyer who aided an interest person- using his money to own land.  For instance, in Liberia, land has been concessioned to powerful investors who have cultivated the land for more than 100 years without any benefit accrued to the country. All these concessions are legal registered and owned regardless of the flaws after all. 

 

My argument in this discourse is heavily guided by my experience not what we might necessarily seen on paper or head of as a popular saying. 

 

 

2. The Role of Traditional Leaders in customary land administration

 

The role of traditional leaders cannot be underestimated. Before colonialism, traditional leaders fought to gain land which they protected for their people. By this time, it was not for men or women, youth or elder, it was for their people. That is why most often it was a tribal land. In fact, the word Traditional leaders was actually a tribal leader. 

 

During colonization, after fighting many failed battles, the Europeans cleverly engaged these traditional leaders, made peace with them and use them to govern. During this period, and in places like South Africa, such was regulated through the law (Black Administration Act of 1927) with many subsequent acts passed. In West Africa, it was directly term later by historian as an indirect rule (Yakubu A.M.1993).  All these processes diluted the power of chiefs and change their role and what they could actual offer.  After  going through this strict and unwanted dismantling of their powers, the traditional leadership became a puppet of the government and those in leadership. Those who initially became educated, wishing to get a taste of land ownership, all working in government- used their influence to manipulate these leaders to acquire tribal land for private use like their European colonizers. 

 

Let me say this again, in Liberia for instance, a typical traditional leader knows land based on a working distance not Meters, acres and kilometers. Whenever elites buy land for private use or for their investor colleagues, chiefs who could have thought of selling a piece of land ended up losing the entire land of his people. Typically, the quantity of land that is registered on paper in Liberia for instance is unbelievable that any chief could do that. Another modern situation is the surveying of land by modern tools using helicopter from the sky. There is no traditional leader that will know how much they are selling in actual sense. These challenges faced by traditional leaders are hardly explained and we all keep believing that they are behind all the corruption. On many occasions, investors and elites threatened these leaders, provide them with false promises for jobs that will employ their people and out of good intention, they give the land out which normally tend to be a serious trouble in the long run.  On the overall, if we give traditional leaders the support and provide them with the right information, I can tell you that they are better placed to protect communal and traditional land than any given government. 

 

We must reinstate their role by laws that are inclusive and equally demand that any lawyer who processes a given land transactions later deem to have been arranged with flaws must take full responsibility of all damages. 

 

While the role of traditional leaders remain active and could become more useful as land laws seek to give land back to the communities and provide space for inclusive use, we must develop strict laws to regulate the behaviour of lawyers and elites to make sure they do not use their know how to cheat and put the blame on traditional leaders. 

 

If we listen to communities and empower them properly, we can reinstate traditional power to land, regulate the ownership, management, use and transfer in a simpler way with simple terms. For instance, through local guidelines. 

 

 

3. Forced Evictions as a Form of Land Corruption and its Impact on Women's Land Rights 

 

I do not want to dwell whether there is an impact on women when forced evictions take place. In the first place, in all slums, population surge, women are more vulnerable, many with children whose fathers are unknown. This vulnerability is well known, and many do not do much to help after all. 

 

There is no doubt that without dwelling on legal provisions and the good intentions of government, force eviction is an offense and a deliberate act of refusing to listen and to support your people. Those being evicted are poor citizens and if any government means good, the first thing to do is the do the best thing. By negotiating and using the resources earned from the sale of certain land, government can build better estates to move people where they can jointly access services and benefits as part of the social contract between government and the citizens. Sadly, in the entire world, force eviction has been justified and continue to be used against citizens and people especially women and children. 

 

But for any government willing the do the best thing please note the following:

 

• In often situations, force evictions present an opportunity to government for a better service delivery. For instance, if an investor is willing to buy a piece of for a million dollars, such huge sum can be used to build allow income estate where schools, markets, electricity and water supply can be provided for a good number of those who will agree in good fate to move peacefully. 

 

• It is an ideal opportunity to use such resources to build trusted communities who can keep a government in power through popular votes as such service delivery is a good sign of a good government

 

• Such builds a patriotic trust and sealed a social contract between government and the governed while at the same time helping to build the nation in a more rapid way to sustainable outcomes reducing tension, building peace and unity different people

 

• At the same time, it provides such communities an opportunity to enter the productive economy and become taxpayers at some point in the near future 

 

 

4. An Analysis of Alternative Dispute Resolution Systems in Addressing Land Corruption.

 

Liberia is presently testing the integration of alternative dispute resolution for all land disputes now and in the future. However, why the benefit is crucial such as low cost, time justice and easy to run system, the following must be considered:

• Enough safeguards to protect vulnerable people especially women, children and youth 

• Those empowered to run the system must be trained and regulated with strict rules and laws 

• Traditional leaders should be independent of the process while a special team of inclusive citizens should run it

5. Conclusion 

 

While we often know that land corruption is rampant, we must consider the fact that often, there are reasons for this which are not spoken or discussed. These reasons are hidden, and we must deepen our understanding of the different uses of land and provide alternatives to such uses.  For instance, when land laws are being passed, we listen to lot of positive things, but the inputs are sometimes guided by special interest groups who will want to use the law and gain access to privileges.  

 

Please read my article on Medium: ’Our Land is Not for Sales’’. 

The Role of Traditional Leaders in Customary Land Administration: Case of Ghana and Zambia

It was very clear that both Zambia and Ghana have a dual land administration system; Customary and Statutory. In Ghana, the customary land administration set up puts the allocation of customary lands in the hands of the local traditional authority, with the consequent land rights recordation and documentation in the hands of the governmental bodies. Despite the fact that both systems of administration has been recognized in the Zambian constitution and land laws, state land is considered more secure because title deeds stand as proof of ownership in the courts of law and elsewhere whereas the customary land certificate though valid is not as secure and recognized as the title deeds

 

Challenges of a dual land administration:

A major challenge of having a dual land administration system is that both state and traditional leaders sees land as a resource that generates revenue; however for the state, guidelines on land access and payment of land rents makes it easier for land owners to comply other than in customary land where the royalties required for one to access land are not fixed and may vary from person to person and when the resources are collected, there is no transparency or accountability on how they are being managed or how they are contributing to chiefdom development. The common practice is that everything received by the chief belongs to the chief.

Another challenge is that customary tenure governance is not codified and depends to a large extent on the goodwill of the traditional authorities. It has generally worked well but with the advent of Large-Scale Land Based investments, the temptation to “offer” land to the investor at the promise of job creation is huge. This sometimes can lead to displacements of the same people who are supposedly to be given jobs.

In addition, customary land registration processes are still time-consuming, they generally remain poorly documented. Transactional activities related to them remain hooded in non-transparent measures.

Some critical issues raised in relation to Zambia are the following:

  • An incomplete legal cadaster - Current land registration law is limited to state land while customary land is not subject to the land registration system
  • An incomplete fiscal cadastre - While state land is subject to land rents and taxes, there are no rents or taxes levied on customary land
  • A differentiated system - With statutory tenure having well defined boundaries and superior rights than customary tenure. Fixed boundary system, registration of title, collateralization are all exclusive to statutory tenure. While customary tenure has general boundaries, rights limited to use and occupation with no title, cannot be used as collateral
  • Lack of clarity and overlapping rights and mandates - which can sometimes be difficult to disentangle in instances where state developmental interests are occurring on customary land e.g. Game Reserves, Forests Reserves, Mining interests, establishment of new districts or extensions to existing districts which occurs on customary land
  • One-way conversion - Currently in Zambia land can only be converted from customary to state land. There are no provisions to give land back to customary authorities even in instance in which the land has not been used for the purpose for which it was converted.

A key highlight was the point that by law it is clearly spelt out what specific procedures guidelines government and investors must follow over large-scale investments. Including the need to consult affected communities, provide appropriate compensation, adhere to resettlement standards, assess environmental impacts, and comply with relevant laws. Also, the traditional leaders must consult affected communities before agreeing to land transfers. Unfortunately, this is mostly not the case and thus the challenges of displacement, non-payment of compensation etc. It therefore behooves on Government officials to ensure that investment projects comply with the law – (Lands Customary Tenure, Conversion and Regulations.)

A peculiar point in Ghana was the mention of the Statutory Instrument which regulates the amount of land a traditional leader can give to an investor without consultation of government – 250 Hectares, but in some instances traditional leaders have exceeded this limit, causing uproar about abuse of power and possible linkages to corruption.

 

Recommendations:

  1. Government should adopt a gender-sensitive and inclusive National Land Policy system based on human rights principles. This shall ensure an effective land administration system and efficient enforcement of the existing laws and regulations concerning the allocation, sale, transfer and assignment of land. In addition, Customary land rights should be put at an equal standing with state land to protect the rights of those living on customary lands.
  2. Promote the use of applications and approaches that are corruption proof. One concrete example cited was the use of ‘Blockchain processes’. It was suggested that Blockchain provides a more transparency focused tool for customary land administration. Using Blockchain will involve the creation (management or administration) of distributed land information databases for peer-to-peer transactions, usually shared between the nodes of a network. The implication is that a central system will record land transactions in real-time and transactions are transparent to all in the system. As Blockchain is emerging, it is worthwhile to use it in the land administration sector to enable transparency, and so reduce corruption.
  3. Equitable, Effective and Efficient - Fairness and justice should be the main characteristics of the land allocation system. Land management must be capable of producing desired results at a minimum cost to the public and the environment.
  4. Community Origins and interest - A land management system must reflect the value systems and interests of the people it serves and not be an alien imposition.
  5. Cheapness and Completeness - Original grants of land should be cheap enough to be afforded by all. Failure to which means-tested selective subsidies should be considered to enable the poorest of the poor in society to access land.
  6. Leasehold – An acknowledged fact that absolute ownership of the land does not vest in the individual. To the one, it vests in God, to the other, in the community. The leasehold principle complements the equity principle by providing potential opportunities for redistribution.
  7. Security of Tenure - A clear definition/demarcation of boundaries, state guaranteeing a system of registration, and an independent and accessible legal system are essential for securing use-rights
  8. Alternative dispute resolution – The ADR concept introduced in the Customary Land Administration is helping particularly women and marginalized to seek redress should hitherto could not have contested their cases in the law courts.

 

A key example from Ghana was the pilots of Customary Land Secretariat (CLS) as designated office mandated to support the Land-Owning groups to be more transparent and accountable in documenting land transactions within the Traditional Councils. Over 58 CLSs exists across the country, with dedicated office with some complement of staff that support the functioning of the secretariat. Some of the CLSs has become financially viable by making the land transactions so transparent by documenting and displaying fees, levies and charges on every transaction. Some of the CLSs have an audited account.

 

Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights

The High Commissioner for Human Rights(2018) reported that in Kenya “The Government has bulldozed hundreds of houses and destroyed at least five schools. The eviction operation which started in the early hours of 23 July 2018 is expected to leave more than 30,000 people homeless. It has already left about 2,000 children without schooling.”1

The case of Ugandan soldiers Uganda Peoples’ Defence Forces (UPDF) forcibly evicting communities in Oyanga, Luru, Acholi Ber and Gaji villages in the Apaa area in Northern Uganda in early 2018 is worth mentioning if the impacts of forced evictions are anything to go by2.  They were orchestrated by the Uganda Wildlife Authority and the National Forestry Authority who alleged that the villagers were occupying Zoka Forest reserve and East Madi Game Reserve. Just like in Kenya, the evictions led to damage of property and left hundreds of people, including children homeless, contrary to the safeguards required under international human rights law like the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa.

 

 

Question 1: How do you strike a balance between development for common good (public interest) and forced evictions?

To strike a balance of development for the common good is increasing Tue people's access to information, facilitating their participation in planning and decision making processes and their access to justice. 

Regulation on disclose policies and on the simplification of administrative procedures. 

Ensuring access to Justice is another important means of combating Corruption. 

This is an oxymoron. Why should one strike a balance between the common good and forced evictions? The latter - when people are legally entitled to the land and their usufructuary rights - is criminal.

Two examples: 1) The Kamsisomwa villagers north of Kigoma in Tanzania were brutally evicted from their land to make way for a REDD+ scam for the Jane Goodall Institute. [1] Their petition to the world has so far raised $110. The Institute does not reply to my letters, nor is the media interested in their problem, perhaps because Jane Goodall is seen as the Mother Theresa of conservation.

2) In Zambia, the late Senior Chief Luembe (acting, like the present chief) sold land belonging to the Luembe Conservation Trust (which I had registered for the villagers' benefit) lying between Mbizi lodge and Munyamadzi game ranch in early 2012 to a Petauke trader, RIDWAN MUNSHI. In 2014 the Nyambeka villagers numbering some 1200 people were forced by the late Chief Luembe to move from their village without any compensation or assistance of any kind. The matter was not rectified by the present chief, by the District Council, etc. I had been deported in 2008, so was unable to do anything.

A legal case is now being prepared by Luembe people to deal with a criminal act. There is no balance to be struck. An action is either legal or not.

 

Under pressure from the donors, the Fifth National Development Plan (2006-2010) created the Private Sector Development Reform Program to increase the amount of land available to investors. It, in turn, established the Land Reform Working Group formed jointly by the Zambia Development Agency and the Ministry of Lands to spearhead the state landgrab operation. By 2011 they had obtained half a million hectares for their land bank in Northern Province – most of it from that part of customary area not taken up by GMAs, i.e. open area, in addition to the million hectares already alienated to eight farming blocks – one in each province. [2] No effort was made to lease the land in a manner that ensured it remained customary area.

 

 


[1] https://www.farmlandgrab.org/28925

 

[2] Mukanga, Chola.“Land for Development?” House of Chiefs. 11 Nov. 2009. Web. 9 April 2017. <http://www.houseofchiefs.com/2009/11/land-for-development.html>.

 

Forced evictions have to be objected to by the public and fought in the courts. The problem is when you want to meet to discuss a campaign issue you are refused permission to do so by the PF. See Zambia Watchdog of 24 July:

 

Govt cancels senior citizens press conference

24 July 2019 19:11  7

PF direct police to cancel senior citizens press conference

Homs Affairs Minister Steven Kapyongo has directed the police to cancel a planned press conference named as ‘the Zambia we want’ which was supposed to have been addressed by Simon Zukas and Gilbert Temba.

Meanwhile PF has paid discredited former civil society activists, now PF cadres Andrew Ntewewe and Hyde Haguta to organise a solidarity rally in support of PF. In a recording being circulated on social media platform, Ntewewe who is being investigated for stealing donor money is inviting members of the public to support what they are calling the Zambia we have.

According to sources at force Headquarters, State House through Kampyongo has also directed Mulungushi Conference Centre to cancel the booking for hosting the press conference. Below is a statement by the organisers:

Dear Colleagues and Country Men and Women!

For/On behalf of the Senior And Concerned Citizens, I wish to inform you and through you the nation, that the proposed media briefing which was supposed to take place tomorrow, 25/07/2019 at Mulungulushi Conference Centre *has been postponed to a later date to be communicated*

This is because the Mulungushi International Conference Centre Management, after receipt of the payment, demanded for a *Police permit* to allow the organisers to convene and hold their briefing at the premise.

Having been communicated at last meeting of this new demand, the Senior and Concerned Citizens have decided to put off the briefing.

This demand for a police permit to hold an indoor media briefing has never been unheard of in democttai Zambia Democratic until now.

It is unfortunate now that an indoor media briefing requires police permit and owners of premises can use such as an excuse to deny citizens the right and freedom to expression, association and Assembly.

Aluta Continua!!! *Freedom is coming tomorrow!!*

 

Here lies the problem. Oh! Don't forget about the climate catastrophe as well.

This oversimplifies the issue of forced evictions. In some cases, evictions may occur because settlements are located in ecologically sensitive areas (e.g. prone to flooding or landslides) or for infrastructure development. Forced evictions are not always the result of selfish motivations. 

I am talking of the forced eviction of customary people from their land and removal of their usufructuary rights for industrial farming, mining, REDD+ schemes and the like. Of course, if there is an environmental or other problem necessitating that they move, then this is explained to them, they are assisted in the move and in their settling into another area. This is an eviction, but for their own good. We have been discussing specific situations in Zambia and Tanzania that are the result of 'selfish motivations', be it by the state or the chief.

Globally, tens of thousands of people are treated to threats of evictions or are forcibly evicted often resulting in the majority of then being rendered homeless and landless. Others especially the marginalized and vulnerable communities are left living in extreme poverty and destitute conditions. Forced evictions lead to severe trauma and set back to the evictees and this is made worse for the victims who are already marginalized and vulnerable in the society. Forced evictions are understood as temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. Forced evections are in principle a violation of human rights and more so the right to housing as the international community maintain.

Forced evictions have been practiced both in the developing and developed countries alike and the activity has been justified in the context of development, emergencies as well as reconstruction. Forced evictions have further been propelled with urbanization process as well as climate change and globalization. In addition forced evictions have been driven by  global crises  for instance the financial crises which in sum make  forced eviction activity to be more a cute and complex in mature.

Forced evictions in Kenya can be traced back into the colonial era  ,range from land or housing evictions, committed in rural and urban  and netted to individuals, family , community or neighborhood and the practice has been extended by the post independent administration. Forced evictions can be understood in the context where the colonial governments used irregular and or illegal methods to obtain land from the native communities. The post- independent government perfected this trend through disrespect of land laws in land allocations, land registrations, forceful evictions and land grabbing which demonstrate corruption in the context of development agenda. retroactive justice fund was established in 2015 but the kitty finance have not been accounted for.

In Kenya forced evictions for development purpose have been done but the state fails to provide protection for the vulnerable, procedure guarantees lack and due process not followed. They have resulted  in indigenous people in rural areas being dispossessed of their ancestral land, the decision making process of eviction has been grossly flawed, illegal and deadly force and violent used and death cases being reported. This has been done by state agencies (Amnesty International, 2014).court sanctions to stop evictions have been ignored at some point, houses of victims burned with no alternative shelters provide.

Women, due to customary stereotypes have been the most affected. Families have been torn apart and as Amnesty international report, men have deserted their wives, forced evictions have exposed them to sexual violence, been traumatized, intimidated, harassment, stress and anxiety as UNHRC reports.

Governments, civil servants and unscrupulous ‘literate’ individuals take advantage of the ‘illiteracy’ of the masses. Whilst statistics in Kenya indicate that 78% of the population is literate this does not take into fact comprehension. Thus, whilst many may be able to read basic text which was required to finish school, there is no culture of self-reading and/or reading for pleasure after. The ‘Big Man’ syndrome culture also effects day to day life. Thus, a person who can portray literacy, of complicated legal documents ascends the proverbial “Big Man’s Chair’ no matter their age or experience. They then use this position to influence decisions. As the majority do not know nor are, they aware that they have a voice, it is very simple for these people to take advantage. In my opinion all the laws and regulations required are already in place, we do not need to add more. What is needed is education of the masses in their basic civil responsibilities. Up till the early 1980, Civic Education ( or Civics as it was known) was a compulsory 2-year course that all Kenyan school leavers had to pass. In the early 1980’s the Moi government combined Civics, History and Geography in one subject, thus diluting the potential impact that a dedicated 2-year Civics course had. In my opinion Tech and commercial funds can be used to disseminate and educate people in their responsibilities and rights. Once people know these they can affect and control the ‘Big Man’ syndrome.

Forced evictions is a conundrum that all governments the world over have faced at various times. Back to education. If you are poor and semi-literate, you have no idea of your responsibilities how you can know your rights. I think I am correct in saying that every government retains the right of compulsory purchase for the benefit of the country. So it is not whether the evictions are justified or not, it is more do the citizens understand their responsibilities.

The case of Liberia

The only surviving child of a landowner from the town of Foloblai in Bong county.

Gormah inherited her father's land when he passed away, including the Tribal Certificate (TC) in his name. Though her name is not on the Certificate and her father had not acquired a deed forg the land, Gormah firmly believes that the land is hers. 

The inherited land abuts a footpth, which serves as the traditional boundary between Foloblai and the neighboring town of Gbanyea in Bong County. 

After Gormah inherited the land, a man from Gbanyea crossed the footpath and began planting rubber trees on Gormah's land. Gormah first asked the customary authorities in Foloblai to intervene, and they asked the man to stop. But they they had no power to enforce their requests and the man continued to plant ruber. 

Further, the man claimed that, because Gormah did not have a deed to the land, her tribal Certificate was invalid and the land was "free". 

After the Customary authorities failed to resolved the dispute, the man asked the Not rwegian Refugee Council (NRC) to mediate the case. The NRC suggested that the woman and the man divided the contested land between them, but Gormah refused to settle. 

According to her, the tribal Certificate in her possession proved her right to the land. She wanted to take the dispute to court. Gormah sue the man throuth the circuit court in Gbarnga, Bong County. 

According to the Land Rights Law of Liberia, Tribal Certificate wbers should process their Certificate within thirty six months after the passage of the Land Law, and unfortunate for Gormah, she has not process her Certificate from the time the land law passed.

 

 

In Kenya  sometimes the government may need land for public interest projects such as  expanding roads, mineral exploration or establishing other public utilities. In such instances, the rights of the government override individual rights of ownership, and therefore the government can take privately owned land through a process termed as compulsory acquisition. However, the government must give adequate notice and compensation to the private owners of the land before acquiring it.

It is worth noting that as a country, Kenya has not enacted a law governing the issue of evictions and resettlement though there are attempts made from the year 2006 to put in place the law but the Evictions and Resettlement Procedure Bill, has faced many challenges and with this state of affairs, we are guided by international instruments and principles by virtue of Article 2(6) of the Constitution 2010, because Kenya as a country ratified the stipulated international instruments as early as 1972. The provisions are further supported by the express provision of the right to adequate housing under Article 43(1) of the Constitution and in that regard, as a country we are to abide by the international eviction guidelines.

Evictions in Kenya are legal as per the requirement under the law. Eviction has been defined under the Land Laws (amendment Act, 2016 as the Act of depriving or removing a person from the possession of land or property which they hold unlawfully either executed upon a successful law suit or otherwise.  The case for eviction is outlined under Articles 152A to 152H.

The Ogieks are a Kenyan indigenous community that comprises about 20.000 members, mostly located in the Mau Forest, a land mass of about 400.000 hectares. In October 2009, the Kenyan Government issued a 30 days eviction notice to the Ogieks on the grounds that the forest constituted a reserved water catchment zone and the State had to conserve it. This was not an element of novelty for the Ogieks since they had been victims of injustice throughout the XX century and have suffered from continuous marginalisation and subjugation. The eviction act came as the last of a series of other similar actions undertaken by the Government since the colonialism period, as well as the lack of legal recognition of the Ogieks as indigenous group. Given the very close relationship between the Ogieks and their ancestral territories, the eviction resulted in a substantial violation of both their basic human right as to live in their homeland and to their cultural, religious, social and economic rights as indigenous people. These rights are protected under international human rights law instruments such as the United Nation Declaration on the Rights of Indigenous Peoples (UNDRIP) and the African Charter on Human and Peoples’ Rights (the “Charter”).

While the evictions may not be legal, the government has in many cases (I am not sure if all) issued notice to the residents to evacuate the areas where the planned development is proposed. The major challenge to this however is that the same government doesn't offer an alternative area for the relocation/resettlement of the residents who are majorly poor and vulnerable.

Also, some of the projects have been well received after their implementataion, when the residents realize their benefits e.g. the kibera by-pass link road - the area is currently more accessible. The residents have better/ more routes to take to their places of work and generally, the area is more accessible for offering services -eg. fire trucks can respond better to fire breakouts which are common in informal settlements, and other emergency response services.

While the end might justify the means, the government does, through such processes go against its own law - the Constitution which stands for community/public participation. Most of the informal settlement residents are usually caught off-guard due to the lack/ insufficient community engagement process. Another issue is that the eviction notices are issued to the landlords of the structures in informal settlements, who might not share this information with the tenants=residents of these areas - an issue which has the potential to be addressed through thorough public participation. A good example of this is the Mukuru Settlement where 3 of the villages were declared a Special Planning Area and since then, there have been peaceful evictions to pave way for infrastructure. The process though has been long and community intensive - something that the government so far has proven not too good at since most of its projects are politically intensive calling for "quick-wins".

Unfortunately, women who remain in many cases the home cares are mostly affected - I believe - given that these evictions happen in the dead of the night. This is especially true in cases where the male partners are either absent or at work (night guards/out of town) and the women are left to try and save their belongings as well as taking care of their children. Their vulnerable exposure in the night leaves them at risk of sexual violence and desperation.

Evictions should always be done as the last resort, reverted to only after all other possibilities and alternatives have been exhausted. Similarly, it should be well evident that land is indeed used to achieve development, as opposed to depriving people of their land for selfish reasons.  In the event that forced evictions are imminent, there needs to be safeguards in place to ensure human rights are not violated and the process is done as per procedure. This entails being allowed to participate in the planning process.

The law stipulates instances where eviction can happen. It is required that the dignity of those being evicted be preserved. However, the practice has had a negative towards the rights of those being evicted. In several instances, force is applied leading to destruction of property and loss of life. The state should always ensure that public interest do not completely banish individual rights. 

Strict adherence to the law and the constitution: Evictions need only be forced when it is legal. The government needs to follow all legal procedures before forceful evictions. It has to ensure that affected persons are given an opportunity to have their concerns heard, addressed and given time to freely vacate the land conditionally.

If after all the legal processes have been exhausted and forceful evictions still have to be done, the government must ensure that the right to dignity has to be preserved and the eviction must be done in a manner that will have the least possible damage to personal property, life, and human rights. For instance, the government must carry out the evictions during the day, ensure no human casualties and harm is effected, be systematic, and offer the affected persons necessary assistance such as health services, water and food, blankets, etc.

The word public means for us all. So we cannot want or purport to evict ourselves. This country has lawyers and is part of various international treaties - all these speak to how people need to be resettled or compensated because of projects. Whether they're on public or private land.

This is not legal- Development is important but it should not be at the expense of human rights and fundamental freedoms of the people for which the development is intended. There is needed to strike a balance between Development and Human rights protection.  Although government possesses statutory power to acquire land for development, it violates human rights and fundamental freedoms of its citizens if the affected persons are not informed in time, sensitised on their rights, consulted to consent, resettled or adequately and fairly compensated. Power and authority exercised by government in acquiring land for public purpose is marred with property rights violations.

Corruption as defined by Wikipedia is a form of dishonesty or criminal activity undertaken by a person or body entrusted with a position of authority, often to acquire illicit benefit. It may take the form of bribery or embezzlement.

Forced evictions can be generally understood as the illegal and criminal deprivation of the rightful owner of the property (land) that belongs to them legally or by right.

These evictions have a bearing on corruption in that many times the perpetrators want to acquire an illicit benefit from the underprivileged members of the community, majority of whom are women including widows. Often, when a man dies, the greedy relatives, members of community and sometimes trusted leaders in the community plunder the property (in most cases land) that would rightly belong to the deceased’s wife and children. These ride on the vulnerability of the rightful beneficiaries through criminal acts like trespass, destruction of crops and houses on the land, threats, assaults and sometimes even go the extent of threatening to kill if a widow does not surrender the land. The widow’s woes are worsened by a dysfunctional public justice system which many times fails to acknowledge these as crimes; categorizing them as family issues or civil matters.  This means that if the vulnerable woman is to take legal action, she must face the perpetrator herself or at a hefty cost, hire a lawyer; who may also not guarantee justice.

At every stage of the land administration process, there is some form of corruption and women are the majority of the victims. Statistics show that women represent a great percentage of the country’s illiterate. Therefore,  even though they work  hard enough to accumulate wealth which includes land, because of this systemic disadvantage, they may not be ignorant  about land processes and so local leaders, officials in land registries and those entrusted with the duty to secure justice take advantage of this weakness and in effect deprive them of their land rights. This deprivation takes the form of asking for bribes, which the poor woman may not be able to afford. Other times, it takes the form of unfair negotiations and mediations forcing the widow for example to surrender an unjustified chunk of the land to the perpetrator for the sake of maintaining peace in the community. In effect, the perpetrator gains an unconscionable benefit from this. 

In conclusion, forced evictions are a form of crime mostly fueled by the system which also allows women oppression to thrive and therefore it is undoubted that it hits women harder.

  • The obligation of States to refrain from, and protect against forced evictions from home(s) and land is premised on several instruments including; UDHR, ICESCR, CEDAW, ICCPR, etc.
  • The attitude towards evictions at the international stage requires governments explore various alternatives before undertaking evictions so as to avoid or reduce the need to use force during evictions
  • Nationally, evictions are rampant and constitute a big human rights concern with far-reaching implications on several rights guaranteed in Chapter Four of the Constitution including the obligation of government to respect, protect and fulfil the human rights of all persons (article 20); protection of right to life (article 22); respect for human dignity and protection from inhumane treatment (article 24); and protection from deprivation of property (article 26). These provisions are supported by Article 237 which vests land in Uganda to the citizens under the four[1] land tenure systems.
  • Several legislative and policy processes have been rolled out to address evictions and these include;
  1. A Practice Direction on the Issue of Orders Relating to Registered Land which affect or Impact on the Tenants by Occupancy[2] to give guidance on fair and smooth operation of orders (2007);
  2. The Land (Amendment) Act[3] 2010 to enhance the security of bonafide and lawful occupants. The Act, among other things provided for non-payment of ground rent as the sole ground for eviction of lawful and bonafide occupants.
  3. A Presidential Directive[4] ordering Resident District Commissioners (RDCs) and District Police Commanders (DPCs) to refrain from effecting court eviction orders (2018)
  4. A court order compelling government to develop comprehensive guidelines governing land evictions before, during and after fact (2019).

Corruption and Evictions

Connivance amongst land governance institutions is the rampant form of corruption when it comes to evictions. The following examples illustrate this;

  1. Some Area Land Committees are bribed to process questionable applications which are then submitted to the District and Boards for award, which later lead to eviction.
  2. District Land Boards in some areas do not perform due diligence even on suspicious applications because they have been compromised. This leads to unlawful awards of title which ultimately lead to evictions
  3. Some Eviction Orders are obtained fraudulently from Court after the judicial officers have been bribed
  4. Security agencies being used to shield land grabbers at the expense of the ordinary women and men in the community
  5. Tenants conniving with Local Councils [LCs] to back date land sale agreements to indicate that the purchase  was before the year 2010 when the Land (Amendment) Act came into force barring sale of one’s tenancy without the consent of the land owner
  6. Some mailo land conniving with the Local Councils [LCs] to hide notices of payment of busulu from the tenants to use that opportunity to seek an eviction order and get them off the land.

From the above, it’s clear that evictions in Uganda are a consequence of exercise of power and authority by the rich and powerful on one side and the poor and vulnerable on the other.  The affluent and well-connected individuals have the means and connections to unduly influence, bribe or even threaten any land administration institution and land owners. This compromises the land rights of the poor in society

Recommendations

  1. Government needs to expedite the development of Eviction Guidelines streamline the processes and roles of all stakeholders involved in handling evictions on land. The current ad hoc measures create more confusion and are unsustainable
  2. Strengthen District Land Boards and Area Land Committees through skilling and tooling to function in an effective way without the undue influence of applicants.
  3. Needs to deal with the rising level of impunity in the country orchestrated by “land grabbers” who have the capacity to disregard any lawful sanctions against them without fear. This power imbalance needs to be dealt with since it contributes to the many forced evictions in Uganda
  4. Government needs to scale up land documentation efforts to ensure land owners including women have the necessary documents to prove land ownership to strengthen their claims on the land. Since most land is owned customarily, it follows most evictions are on customary land. Therefore, efforts towards developing a customary land registry to buttress to buttress the on-going issuance of Certificates of Customary Ownership should be expedited.
 

[1] Customary, mailo, freehold and leasehold

[2] Practice Direction No. 1/2007

[3] Act No. 1 of 2010

[4] Official statement dated 17th December 2018

Under objective (xi), of the Constitution of the Republic of Uganda 1995, it is stated that in furtherance of social justice, the State may regulate the acquisition, ownership, use and disposition of land and other property, in accordance with the Constitution.

The legality of compulsory acquisition of land is enshrined under the Constitution of the Republic of Uganda 1995 and in particular Article 26 which provides for protection from deprivation of property.

The 1995 Constitution of the Republic of Uganda as amended provides for the right to own property by an individual or a group by virtue of Article 26. The law further provides for exceptions under which a person can compulsorily be deprived of his or her property specifically land and these include public safety, public order, and morality and for health reasons.

Article 26 (2) provides that no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied— (a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health;

Compulsory Land acquisition is also governed by the Land Acquisition Act Cap 226 and Section 3 of the Act provides for a declaration that land is needed for public purpose. The Section provides that whenever the Minister is satisfied that any land is required by the Government for a public purpose, he or she may, by statutory instrument, make a declaration to that effect.

In relation to the dialogue question, compulsory acquisition of land in the name of development for the general public is legal.

However, it is important to note that in as much as it is legal for compulsorily to acquire land for public purpose, sometime the process under which the land is acquired nullifies the whole process due to the inappropriate procedures used to carry out most of the evictions, disguised under public interest and resulting into land corruption.

The inappropriate process can be discussed under the second part of the dialogue question as to whether the citizens are protected during the forced eviction.

While land in Uganda belongs to the people and while the Government of Uganda can hold Land in trust for Ugandans and in public interest for and on be held of many Ugandans to support infrastructural developments like roads, schools and hospitals among others, it must follow the law. This means compensating every affected person in a fair, prompt and adequate manner and this land must be held in public interest.  To that extent then acquisition of land for development is legal. Many evictions however, have occurred at the mere excuse of creating way for development projects without proper and adequate compensation for the affected persons. Taking examples of cases like the Tilenga project in the oil rich Albertine grabben, poor compensation modalities that ignored the women as the ones to provide food in a home, left them without land for cultivation and no money to purchase alternative land as they would compensate the men who went on drinking sprees and marrying other women. Sadly also those that always opt for resettlement are displaced before the area for their resettlement is completed. Thus they wait in make shift shelters after their houses have been broken down and get small food rations to maintain them until they can be resettled sometimes after many years. This was the case with the Tilenga project and the affected persons at Kabaale in Hoima.

Question2: Do the government in Kenya and Uganda protecting their citizens from forced evictions?

The constitution of Kenya: land act and the policy against anti-evictions  including several ratified international treaties.  No, we need to a clear law on anti-evictions and resettlement. It is done on piece meal basis.

The government of Kenya protects their citizens from forced evictions through the law.

In its preamble the Land Laws (Amendment Act, 2016) states that this is an Act of Parliament to amend the laws relating to land to align them with the Constitution and give effect to Article 68 c (i) and 67 (2) (e) of the Constitution, to provide for procedures on eviction from land and connected purposes.

Section 152C of the Land Act unlawful occupiers of land should be given at 3 months prior to the eviction.  This must in be writing, in the Kenya Gazette, in a newspaper of national circulation and on radio.  Under section 152F, any person served with an eviction notice may apply to the court for relief against it.

During evictions there are strict rules that should be followed.  The mandatory procedures are the Land Law Amendment of 2016. Stating that evictions must be carried out in a manner that respects the dignity, right to life, the security of those being evicted.  Groups that are vunerable such as women, children, the elderly and the differently challenged must have special measures to protect them.  Recommended that there should be minimum use of force. 

Then those carrying out the eviction must be properly identified.

There have been many cases of evictions where the law is not followed. Those being evicted must also be made aware of their status as illegal occupants and educated on the process.  If this is properly done, then eviction should not be seen as a form of corruption.

Forced evictions can either be legal or illegal. If illegal, the courts can offer reprieve through injunctions, compensation orders, declaration on violation of rights, etc. This solution is however not very effective due to the governments tendency to ignore court orders, frustrate and delay compensation claims, etc.

Even during court ordered evictions which should ideally be legal, the government has a tendency of carrying them out without regard to human dignity. Such evictions may be carried out too early in the morning or even in the night. The government may also undertake not to offer any assistance to the affected persons. (N/B: Assistance and compensation are different concepts. Assistance is based on goodwill; compensation is based on law/directive. Valuation must be done.  However, both may be legally binding)

For Kenya, yes.

Constitution of Kenya 2010 in Chapter Four, that is the bill of rights and other provisions have a direct impact on right to housing in general and particularly on evictions.

Article 10 on national values and principles of governance include among others commitment to human dignity and human rights including non-discrimination and protection of the marginalized.

As a country, Kenya has not enacted a law governing the issue of evictions and resettlement though there have been efforts to enact the Evictions and Resettlement Procedure Bill. As such, we are guided by international instruments and principles by virtue of Article 2(6) of the Constitution 2010, because Kenya as a country ratified various international instruments such as the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the International Convention on the Elimination of All Forms of Racial Discrimination. The provisions are further supported by the express provision of the right to adequate housing under Article 43(1) of the Constitution and in that regard, as a country we are to abide by the international eviction guidelines. However, these measures are inadequate. More needs to be done as the reality on the ground paints a different picture of evictions being conducted without any adherence to procedure. Evictions happen without adequate notice, community consultations, and no compensation whatsoever for loss of property or even lives, and no alternative resettlement housing. In any case, some happen at night, thus disorienting many vulnerable groups.

The constitution under Article 28 provides that every Kenya should be treated with respect and dignity. 

The Principle of Natural Justice requires that every individual be given an opportunity to be heard. As such, all people under threat of eviction are required to be served if the matter is in court and notice prior to eviction. Some people find it inaccessible to get things working in courts. 

The Land Act, 2012 has other provisions that seeks to prevent forced evictions.

They are inadequate though. So many people do not respect court orders. There are instances where evictions have proceeded even when there is an order in place barring the evictions. There are instances where communities refuse to abide with eviction orders or law enforcement agencies refuse to abide. 

To an extent yes the government in Uganda protects her Citizens from forced evictions through the already existing laws relating to ownership and transfer of property and interests in Land. In the ideal situation, evictions must only be executed through proper court orders and supervised by police and local leaders. However, the practical situation in our country is such that this has not been the case and absence of a comprehensive and guidelines on evictions coupled with corruption and impunity by some police officers and has left Ugandans with no one to run to. Others have resorted to retaliation and use of force while the others still have no option but to report violations to the same police officers that supervise illegal evictions. Until lately with the passing and the Human Rights enforcement Act and the rules there under, now those officers who violate human rights can be individually prosecuted. 

The existing laws do not provide a win - win situation between government and the affected communities. There are unbalanced power relations between government and big investors on one hand and communities and individuals on the other. The laws protect property rights of its citizens but there are some existing inconsistencies and gaps that allow deprivation of property to happen. According to the Constitution of the Republic of Uganda, Article 237 (1), Land belongs to the citizens of Uganda. Article 26 safeguards right to property even as government can compulsorily acquire land for public interest/good land and further requires that when government compulsorily acquires land in public interest, it compensates affected people before taking over their land. There have been attempts by the Government to amend article 26 of the Constitution, which would takes away the requirement of prompt and prior compensation and enable government to compulsorily acquire land even before owners have received payment. The proposed Constitution (Amendment) Bill threatens people’s right to land‐ a fundamental source of livelihood on which 80 percent of Ugandans, most of them poor women, rely. Further still, The Land Acquisition Act is a central law applicable to land acquisition. It is however not entirely in conformity with the Constitutional provisions. The law empowers the government or a local government to acquire land but does not define the basis of compensation assessment nor the valuation method to be used to arrive at the compensation figure.

None the less government is trying to come up with policies and guidelines to safeguard its citizens from unlawful evictions – for example the National guidelines for lawful evictions and the Land Acquisition, Resettlement and Rehabilitation Policy (LARRP), but there is an issue of gap between policy and practice in Uganda, this should be coupled with commitment to comply and implement. Also a need to amend the Land Acquisition Act Cap 226.

According to the UN Guiding Principles on Business and Human Rights, the government has an obligation to protect against business-related and human rights abuse, and business enterprises have a responsibly to respect human rights including identifying, preventing and accounting for how they address adverse human rights impacts caused by them.

The government of Uganda has created a number of legal and institutional frame work to reduce on forced eviction due to the industrial realisation in Uganda. The Government has undertaken a number of policies to protect property rights, right from the 1995 Constitution where every citizen has a right to own land and the Constitutions vests land in the citizens of Uganda.[1] Legislations providing for protection of land ownership such the Land Act Cap 227 have also been put in place.[2]

The same constitution under Article 26 (b) provides for adequate compensation and provides inter alia that the compulsory taking of possession or acquisition of property is made under a law which makes provision for— (i) prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property; and (ii)   a right of access to a court of law by any person who has an interest or right over the property.

The Land Acquisition Act required that before the land is compulsorily taken, prior notice should be given to persons having interest in the land.[3]

Government has to make a prompt payment of a fair and adequate compensation to the affected person before acquisition and taking possession of the affected land mindful of the fact that compensation should be based on the actual market value of that land at the time of acquisition. The courts in Uganda have pronounced themselves on this issue and its well settled.

The Courts have come out to put emphasis on the need to follow the legislation before acquiring land as was laid down by Justice Kitumba in National Road Authority Vs Assuman Irumba[4] where it was stated that government cannot evict or acquire land from a person without proper procedure required by law, that is notice and compensation.

The Government has also put in place additional efforts in protection from eviction in form of corruption. For instance, the supervisory organisations such as the Land Police Protection Unit as well as the Ministry of Lands, Housing and Urban Development. 

What is important to note is that much as the government has put in place laws Organs and procedures to protect citizens from forced evictions, the same are either violated by the same institutions put in place to protect the forced evictions in form of corruption or there are gaps within the law.

Some of the gaps in the law are that; the Law does not define what constitutes public purpose it gives the minister power to determine what public purpose is. This creates a gap that is being exploited to violate citizens’ rights by the government and her investors.

The law does not provide for a social impact assessment and therefore there are no mechanisms to determine the social economic and environmental impacts to be measured before a decision is taken to acquire or not to acquire the said land hence grabbing people’s land without ensuring that the said acquisition serves the intended purpose.

The law does not provide for prompt payment of compensation prior to acquisition of land rather gives powers to government to acquire land and later pay[5]. In the case of Advocates for Natural Resources Governance and Development and Another versus Attorney General, the Constitutional Court declared Section 7 of the land Acquisition Act undefined acquisitions unconstitutional on grounds that it was inconsistent with Article 26(2) of the Constitution. That is to say to the extent that it does not provide for prior payment of compensation before government compulsorily acquires or takes possession of any person’s property. In practice the land is acquired and people have to go through a lot of hustle to be compensated.

Further the existing law does not make provision for rehabilitation and resettlement and there are no resettlement mechanism or scheme detailing infrastructural amenities.

There is a limit on the right of access to court being for only an award of compensation under the Act.[6] This means that one cannot go to court for any other thing such as challenging private acquisitions that are not public purpose.

The current Land Acquisition Act does not establish a Land Acquisition and Compensation Disputes Tribunal that would enable the affected people majority of whom are poor and vulnerable to access justice that is affordable and reliable for redress in cases of grievances. As a result, every affected person must go to tradition courts which are more expensive to afford or go to informal village grievance committees created by those acquiring the land.

There are no regulations on assessment and payment of compensation since 1965 when the Land Acquisition Act was enacted, the minister for lands has failed to put in place regulations for the assessment and payment of compensation as provided for under Section 20 of the Act. This leaves the determination of the compensation to be paid to the affected people at the mercy of the government.

The current law does not stop the government from intimidating the affected people with the cut off dates.

District Land Boards provided for under the Land Act cap22 are not required to consult the citizens when compiling rates of compensation.

The law does not provide for offences and punishment for those who misappropriate money meant to compensate project affected persons.

Compulsory acquisition of land in Uganda has undermined the principles of good governance. The failure to strictly adhere to the rules and procedures of the available legislative tool, and also inadequate payment of compensation has become obvious and apparent. This tantamount to land grabbing, and many people are worried that if the land policy is amended as proposed many people will lose their land rights to powerful and politically well-connected individuals and multinational companies. Ugandans have interpreted the plan as a well-calculated maneuver that will fuel land grabbing and evictions in the country. Most of which are not adequately compensated.

However, the big challenge is that Uganda does not have a land compensation policy. Policies that relate to land compensation are scattered in various instruments and papers, in Government institutions and departments, which exercise varying responsibilities over land use and management, with many conflicting and others overlapping, all of which follow no clear policy or guideline.

Therefore, in relation to the above discussion, people continue to suffer under the disguise of acquisition of land for public development and the law that seemingly to protect them does not in actual practice protect the citizens.

 

[1] Article 237 (1)

[2] Section 39 of the Land Act

[3] Section 4 of the Act

[4] Supreme Court No. 22 of 2015

[5] Section 7 of the Land Acquisition Act

[6] Section 13 of the Land Acquisition Act

Connivance amongst land governance institutions is the rampant form of corruption when it comes to evictions. The following examples illustrate this;

  1. Some Area Land Committees are bribed to process questionable applications which are then submitted to the District and Boards for award, which later lead to eviction.
  2. District Land Boards in some areas do not perform due diligence even on suspicious applications because they have been compromised. This leads to unlawful awards of title which ultimately lead to evictions
  3. Some Eviction Orders are obtained fraudulently from Court after the judicial officers have been bribed
  4. Security agencies being used to shield land grabbers at the expense of the ordinary women and men in the community
  5. Tenants conniving with Local Councils [LCs] to back date land sale agreements to indicate that the purchase  was before the year 2010 when the Land (Amendment) Act came into force barring sale of one’s tenancy without the consent of the land owner
  6. Some mailo land conniving with the Local Councils [LCs] to hide notices of payment of busulu from the tenants to use that opportunity to seek an eviction order and get them off the land.

From the above, it’s clear that evictions in Uganda are a consequence of exercise of power and authority by the rich and powerful on one side and the poor and vulnerable on the other.  The affluent and well-connected individuals have the means and connections to unduly influence, bribe or even threaten any land administration institution and land owners. This compromises the land rights of the poor in society

Question 3: With the devastating effects of forced eviction on women, how could women being protected?

Women suffer the most whenever an in-human act is carried out. Women are mostly in charge of our houses hence: a) their investments will be distorted: b) they tend to be more emotional than men, hence may take long to heal: c) the bear children whom when they see suffer, this is transferred to them and equally take long to heal. The government needs to put measures that safeguard citizens upon projects and equally pass the anti-evictions law currently in parliament.

The effects of eviction are loss of livelihoods, where a business is lost, loss of shelter and effects on school going children as a result of relocation, meaning they may not attend school for a while.  There is also separation from families and neigbhours and resulting consequences.

Women can be protected by ensuring that relocation and resettlement is well planned. A step forward is having a resettlement action plan, because evictions are not planned overnight. 

You raise a valid point madam.The resettlement action plan also needs to be shared with communities and actualised to the latter, as this has been a great challenge.

Most women in Kenya hold land through either their husbands or male relatives. This means that very few actual women land owners are legally registered land owners. During forced evictions, issues such as compensation have an impact on land rights.

Furthermore, even though men may be legal custodians of land, most of agricultural activities on land is done by women. That means that forced evictions may have a more dire impact on women land factors on agriculture such as their sources of income and livelihoods. The men owning the land may not be as reliant on them as women are.

What can be done?

  1. Government adherence to the law, exercise of restraint, and minimal harm principle
  2. Citizen understanding of land rights and land laws. (Sometimes, the citizens may be on the wrong side of the law)
  3. Massive land reforms especially in addressing land injustices, informal land settlement problems and the squatter’s problem in Kenya.

Promulgation of the New Constitution 2010 and entrenchment within it a Chapter on land was viewed as a milestone towards curbing land problems including corruption, but the problems still persist as we continue to witness forced evictions which deny the affected persons the right to own property including land as envisaged under Article 40(1) of the Constitution of Kenya 2010.

Women could be protected by: 

  • Empowering the women on their rights and freedoms as relates to evictions and land ownership.
  • The Government should implement the International Eviction Guidelines as set out in International Instruments which Kenya as a country is a party.
  • Enactment and implementation of the Eviction and Resettlement Guidelines Law in Kenya.

The amendment and regulations of Laws and policies is a means of recognizing and protecting women land rights against forced eviction. 

Women acquired rights to land through many of the same channels as men: inheritance and gifts from their natal families, borrowing, and much less frequently, through planning life trees. However, a primary means by which Women access land is also through marriage, such that women's rights to land are substantially framed by customary traditions. 

The marriage system in Liberia is predominantly patrilocal, whereby women relocate to their husband's communities upon marriage and therefore access land by housing and farming there. Marriage traditions combined with traditions of lineage -based claims to land result in women generally having weaker rights to land compared to men. This is particularly the case when it comes to rights to administer and retain land in their husbands' communities when they are widows and rights to administer land in their natal communities. 

  • Most women are low-income tenants and the most vulnerable. Since most of them live in informal settlements, they thus face the prospect of forced evictions, often due to weak or poorly enforced laws, and discrimination.
  • Since women are homemakers, the home is their most important place. Besides it being their shelter, this is where they generate income to earn a living, or engage in other social activities. As such, forced eviction normally has an adverse impact on their lives.
  • Women suffer disproportionately from the practice of forced eviction, given the extent of statutory and other forms of discrimination against women with respect to home ownership and inheritance rights. They are also vulnerable to acts of violence and sexual abuse during and after eviction.

My recommendation are: 

 

  • The government must enact and implement the Eviction and Resettlement Guidelines Law in Kenya with a view to promoting security of tenure for all women, and promotes due process in instances where eviction is permitted.
  • There is need for research based advocacy to assess the impact of forced evictions on women and to explore solutions.
  • Forced evictions should be consistently and systematically monitored and documented in a manner that is sensitive to and includes women’s experiences.
  • All women vulnerable to forced eviction (like the low income women, squatters, female headed households), must receive training and education about their human rights and how these rights can be claimed using formal mechanisms such as courts (where appropriate) and informally through, for example, social action. These women must also be supported and encouraged to claim their rights.
  • Those who carry out illegal forced evictions and engage in crimes like rape and sexual assault, must be held liable - criminally prosecuted by the state for their actions. This includes security officials, who mostly enforce the law.
  • Scaling up efforts in fighting and preventing corruption that instigates forced evictions including empowering the public on identifying and reporting corruption instances to the relevant mandated institutions.

Women are common victims of forced eviction just as children. As a category of people who have suffered historical injustices on ownership of property because of the patriarchal set up, it becomes very difficult to acquire another piece once forcefully evicted. 

What can be done?

  • There needs to be an enactment of slum prevention and upgrading law;
  • There is need to revisit the question of historical injustices to address land challenges in Kenya; 
  • Government should consider poverty elevation mechanisms to reduce the number of people living below the poverty line. 

 

 Women can be protected through the following ways:

  • Ensure that the women sign for the compensation that is given to the family that is to be compensated together with their husbands.
  • Push for land for land compensation as the best form of compensation and follow the IFC standards
  • Ensure that women’s equitable rights in land are protected and they get resettled before being evicted.
  • Protect women’s right to ownership of land in general.

The spectre of eviction hangs over the less powerful who live in almost perpetual fear of losing their land, property, livelihoods and lives as well. Women suffer most as they suffer the brunt of a double faced forceful evictions at micro level ( family) and at macro level from the process of land by governments and businesses companies in the name of development/public good. Considering 50% of the impacted people are female, there is need for a gender lenses in conversations around land acquisition and evictions in order to come up with effective and lasting solutions.  Women can be supported through:

 

  • Empowerment through sensitisation and awareness raising
  • Provide for prompt payment of fair and adequate compensation prior to acquisition.
  • Emphasis on rehabilitation and livelihoods restoration entitlements of affected women
  • Empower communities on gender and women’s land and property rights
  • Institute mechanisms and legal frameworks for protection of women’s property rights including compensations
  • An adequate and reasonable notice of intent to consider an eviction
  • Holistic and comprehensive environmental, economic and social impact assessments conducted

Adequate consultations through public hearings with the affected persons with emphasis on women’s equal and effective participation is such consultations.

Women have been so often denied enjoyment of the same rights over land with men leading to a number of forced evictions against them. Majority of women lack economic leverage thus unable to hold anybody accountable. Therefore, the vulnerability of women in society in society has been the leading cause many land corruptions.

Even where adequate compensation is give upon acquisition of land, the money received is always used by the male counterparts for other purposes other than resettlement. In some instances, there is unequal distribution depending on gender and women always get minimal share of the proceed. It should also be noted that a biggest percentage of women utilizing the land forcefully acquired are not legally married and their opinion is never considered to be relevant.

Women can only be protected through provision of legal support along with economic boost as to meet the court related costs and knowledge about their rights. There is also need for upscale sensitization to promote rights of women and fight land corruption that negatively affect them.

The government needs to handle issue of land carefully. People entirely depend on land for their livelihood. Land has economic, social and cultural significance and is a source of pride to individuals, families and clans. It should not just be dispensed at will.

These are my recommendations:

  • Government needs to expedite the development of Eviction Guidelines streamline the processes and roles of all stakeholders involved in handling evictions on land. The current ad hoc measures create more confusion and are unsustainable.
  • Strengthen District Land Boards and Area Land Committees through skilling and tooling to function in an effective way without the undue influence of applicants.
  • Needs to deal with the rising level of impunity in the country orchestrated by “land grabbers” who have the capacity to disregard any lawful sanctions against them without fear. This power imbalance needs to be dealt with since it contributes to the many forced evictions in Uganda
  • Government needs to scale up land documentation efforts to ensure land owners including women have the necessary documents to prove land ownership to strengthen their claims on the land. Since most land is owned customarily, it follows most evictions are on customary land. Therefore, efforts towards developing a customary land registry to buttress to buttress the on-going issuance of Certificates of Customary Ownership should be expedited.

Technology is a very strong tool that could be leveraged to strengthen documentation as proof of land ownership. The issuance of a Certificate of Customary Ownership should be expedited but there is value as well in that certificate and supporting documentation being stored using a technology that enforces immutability and transparency. These can be digitally signed at issuance by the Government as proof of acceptance and stored (on Blockchain for example) as an immutable public record. Using such a technology for the registry provides some key capabilities that paper documentation or a centralized system cannot. 

The model of land ownership has been one dominated by cultural norms and practices that are heavily patriarchal, rigid and subconsciously enforced within communities. Customary land laws discriminate against women, and generally the political will to protect women’s land and property rights and interests is non existent. The Government has tended to pay lip service to women’s land and property rights, but in practice, the reality is that most women are left to fend for themselves. Women are most disadvantaged in succession matters and whenever crucial decisions on land ownership are being made. Efforts to address the current state of affairs have dwelt on policy and legislative reform. Addressing the deeply seated cultural norms that place men at the heart of decision making on land matters is therefore critical.

Our present complicated system for taxation is unfair and has many faults. The biggest problem is to arrange it on a socially just basis. Many companies employ their workers in various ways and pay them diversely. Since these companies are registered in different countries for a number of categories, the determination the criterion for a just tax system becomes impossible, particularly if based on a fair measure of human work-activity. So why try when there is a better means available, which is really a true and socially just method?



Adam Smith (“Wealth of Nations”, 1776) says that land is one of the 3 factors of production (the other 2 being labor and durable capital goods). The usefulness of land is in the price that tenants pay as rent, for access rights to the particular site in question. Land is often considered as being a form of capital, since it is traded similarly to other durable capital goods items. However it is not actually man-made, so rightly it does not fall within this category. The land was originally a gift of nature (if not of God) for which all people should be free to share in its use. But its site-value greatly depends on location and is related to the community density in that region, as well as the natural resources such as rivers, minerals, animals or plants of specific use or beauty, when or after it is possible to reach them. Consequently, most of the land value is created by man within his society and therefore its advantage should logically and ethically be returned to the community for its general use, as explained by Martin Adams (in “LAND”, 2015).



However, due to our existing laws, land is owned and formally registered and its value is traded, even though it can't be moved to another place, like other kinds of capital goods. This right of ownership gives the landlord a big advantage over the rest of the community because he determines how it may be used, or if it is to be held out of use, until the city grows and the site becomes more valuable. Thus speculation in land values is encouraged by the law, in treating a site of land as personal or private property—as if it were an item of capital goods, although it is not (see Mason Gaffney and Fred Harrison: “The Corruption of Economics”, 2005).



Regarding taxation and local community spending, the municipal taxes we pay are partly used for improving the infrastructure. This means that the land becomes more useful and valuable without the landlord doing anything—he/she will always benefit from our present tax regime. This also applies when the status of unused land is upgraded and it becomes fit for community development. Then when this news is leaked, after landlords and banks corruptly pay for this information, speculation in land values is rife. There are many advantages if the land values were taxed instead of the many different kinds of production-based activities such as earnings, purchases, capital gains, home and foreign company investments, etc., (with all their regulations, complications and loop-holes). The only people due to lose from this are those who exploit the growing values of the land over the past years, when “mere” land ownership confers a financial benefit, without the owner doing a scrap of work. Consequently, for a truly socially just kind of taxation to apply there can only be one method--Land-Value Taxation.

 

Consider how land becomes valuable. New settlers in a region begin to specialize and this improves their efficiency in producing specific goods. The central land is the most valuable due to easy availability and least transport needed. This distribution in land values is created by the community, after an initial difficult start and not by the natural resources. As the village and city expand, speculators in land values will deliberately hold potentially useful sites out of use, until planning and development have permitted their site-values to grow. Meanwhile there is fierce competition for access to the most suitable sites for housing, agriculture and manufacturing industries. The limited availability of useful land means that the high rents paid being by tenants make their residences more costly and the provision of goods and services more expensive. It also creates unemployment when entrepreneurs find the rents too high for them to operate and employ workers. This speculation causes wages to be lowered by the monopolists, who control the big producing organizations and whose land was previously obtained when it was cheap. Consequently this basic structure of our current macroeconomics system, works to limit opportunity and to create poverty, see above reference.

 

The most basic cause of our continuing poverty is the lack of properly paid work and the reason for this is the lack of opportunity of access rights to the land on which the work must be done. The useful land is monopolized by a landlord who either holds it out of use (for speculation in its rising value), or charges the tenant heavily in rent for its right to access. In the case when the landlord is also the producer, he/she has a monopolistic control of the land and of the produce. The product becomes more costly--this monopolist can effectively charge more for it, than what an entrepreneur normally would, were he/she able to compete on an equal basis, because of the excessive rent demanded by the landlord.

 

A wise and sensible government would recognize that this problem derives from lack of opportunity to work and earn. It can be solved by the use of a tax system which encourages the proper use of land and which stops penalizing everything and everybody else. Such a tax system was proposed almost 140 years ago by Henry George, a (North) American economist, but somehow most macro-economists seem never to have heard of him, in common with a whole lot of other experts. (I would guess that they don't want to know, which is worse!) In “Progress and Poverty” 1879, Henry George proposed a single tax on land values without other kinds of tax on produce, services, capital gains, etc. This regime of land value tax (LVT) has 17 features which benefit almost everyone in the economy, except for landlords and banks, who/which do nothing productive and wrongly find that land dominance has its own reward.

 

 17 Aspects of LVT Affecting Government, Land Owners, Communities and Ethics

 

Four Aspects for Government:

 

1. LVT, adds to the national income as do all other taxation systems, but it can and should replace them. 

2. The cost of collecting the LVT is less than for all of the production-related taxes—then tax avoidance   

     becomes impossible because the sites being taxed are visible to all.

3. Consumers pay less for their purchases due to lower production costs (see below). This creates

     greater satisfaction with the government’s management of national affairs.

4. The national economy stabilizes—it no longer experiences the 18 year business boom/bust cycle, due

    to periodic speculation in land values (see below).

 

Six Aspects Affecting Land Owners:

 

5. LVT is progressive--owners of the most potentially productive sites pay the most tax. 

6. The land owner pays his LVT regardless of how his site is used. When fully developed, a large   

    proportion of the ground-rent from tenants becomes the LVT, with the result that land has less sales-

    value but a significant "rental"-value (even when it is not being used).

 7. LVT stops the speculation in land prices and any withholding of land from proper use is not

    worthwhile. 

8. The introduction of LVT initially reduces the sales price of sites, (even though their rental value can

    still grow over long-term use). As more sites become available, the competition for them becomes less

    fierce so entrepreneurs are more active.

9. With LVT, land owners are unable to pass the tax on to their tenants as rent hikes, due to the reduced

    competition for access to the additional sites that come into use.

10. With LVT, land prices will initially drop. Speculators in land values will want to foreclose on their

      mortgages and withdraw their money for reinvestment. Therefore LVT should be introduced

      gradually, to allow these speculators sufficient time to transfer their money to company-shares etc.,

      and simultaneously to meet the increased demand for produce (see below). 



 Three Aspects Regarding Communities:

 

11. With LVT, there is an incentive to use land for production or residence, rather than it being unused. 

12. With LVT, greater working opportunities exist due to cheaper land and a greater number of available

      sites. Consumer goods become cheaper too, because entrepreneurs have less difficulty in starting-up

      their businesses and because they pay less ground-rent--demand grows, unemployment decreases. 

13. Investment money is withdrawn from land and placed in durable capital goods. This means more

      advances in technology and cheaper goods too.

  

Four Aspects About Ethics:

 

14. The collection of taxes from productive effort and commerce is socially unjust. LVT replaces this

      extortion by gathering the surplus rental income, which comes without any exertion from the land

      owner or by the banks--LVT is a natural system of national income-gathering.

 15. Bribery and corruption on information about land cease.  Before, this was due to the leaking of

       news of municipal plans for housing and industrial development, causing shock-waves in local land

       prices (and municipal workers' and lawyers’ bank balances). 

16. The improved and proper use of the more central land reduces the environmental damage due to a)

      unused sites being dumping-grounds, and b) the smaller amount of fossil-fuel use, when traveling

      between home and workplace.

17. Because the LVT eliminates the advantage that landlords currently hold over our society, LVT

      provides a greater equality of opportunity to earn a living. Entrepreneurs can operate in a natural

      way-- to provide more jobs. Then earnings will correspond to the value that the labor puts into the

      product or service. Consequently, after LVT has been properly introduced it will eliminate poverty

      and improve business ethics.

 

Zambia, with an approximated 752,000 square kilometres, has abundant land for her population. But, many Zambians do not have land of their own. The majority of the people in Zambia are merely squatters on the land they hold, which hinders them from developing that land fully. One of the main reasons behind this is the country's dual land tenure systems and the systems of administration. Simply put, land can be owned under customary tenure or statutory tenure. Land can be obtained through a certain framework called land law and policy.

Sometimes, a country's land and policy can facilitate the acquisition of land by individuals. At other times, this is one of the obstacles which hinders access to land and therefore to sustainable development because it favors most the rich, who include the foreign investors. The Republic of Zambia has abundant land resources for various purposes. Some of this land is under customary land governance system. However, access to land ownership is still one of Zambia's major challenges.  Despite having plenty of land, especially in the chiefdoms, many people do not have land property. The reasons for this challenge vary and can include; inefficient systems for owning land. Thus, many Zambians’ have no access to land. Further, their rights to land are more often insecure. The foreign investors much appetite for land in the country has contributed to the scourge. The current legal frameworks and social classes also create a barrier in relation to the rights of the holder.

The level of consensus between customary land owners and government needs improvement to ensure that both customary land tenure institutions and statutory land tenure institutions play their part in the land delivery process by identifying the unique responsibilities of the two systems.

Key weaknesses associated with the operations of the customary land tenure include: the lack of formal structures to record land transactions, lack of legislation to compel the publication of basic land information, the unwritten nature of rules and regulations, the non-existing formal mutual cooperation between customary land tenure institutions (usually include; families, village head persons, chief) and statutory land agencies. These weaknesses contribute to insecurity among the leaseholders.

Zambians can only start benefitting from land resource which has been affecting their multifaceted competing interests. The revision of the national land policy will provide a favourable environment for the country to realise a diversified and resilient economy.

The seriousness by the ministry of Lands to this important policy can be commendable because many stakeholders have for a long time been complaining about the weaknesses in the administration  of land in this  country.

In its current form, the land administration system leaves little room for the empowerment of citizens, especially the poor and vulnerable rural communities. The dual legal framework, which provides for both statutory and customary tenure, has contributed to the gap for the ordinary citizen     to access land. The current Constitution vests land in the republican President, but also allow chiefs to hold and administer    customary land in trust.

Under the current laws, the traditional leaders are only allowed to allocate up to 250 hectares, beyond which they have to involve Government, through the Ministry of Lands and Natural Resources           and      its        agents, the            local     authorities.

However, because of weak provisions in both the policy and statute, some chiefs have been allocating huge chunks of land to mainly foreigners in exchange for peanuts.

Hundreds of their poor subjects, who do not have the economic muscle to take on the rich foreign investors, have therefore been displaced from land they have occupied and tilled for decades.

Oftentimes Government regards traditional leaders as partners in social and economic development, the erring chiefs have gone scot-free while their hapless subjects have remained displaced    for       good. This       has            exacerbated     and      perpetuated     rural poverty. In the absence of a clear land policy that strikes a balance between the needs of the rich investors and the local people, confusion and blatant exploitation of the poor continue to characterise the administration of the land natural resource, both in rural and urban areas.

The full operationalisation of the policy will pave the way for citizen-centred amendments to land-related            statutes                        as         well.

There are still barriers denying women opportunities to own land, which the land policy must help            resolve. The policy should have clear provisions for affirmative action such as quotas for women and the youth if the current inequalities in land ownership are to be narrowed and ultimately closed in Zambia especially in rural areas where much land in under customary tenure.

In line with the International Covenant on Civil and Political Rights (ICCPR)1 and the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems2, many countries have enacted laws that provide for and guarantee the right to free legal representation for indigent and vulnerable persons.

The Constitution of Kenya 2010 recognises access to justice for all as a fundamental right that all persons are entitled to and obliges the State to not only respect and protect, but also promote its realization in the fullest sense.  Notably, the law identifies access to justice as a core element of achieving social justice in the country. To enhance access to justice, the government enacted the Legal Aid Act 20163 to facilitate the provision of legal aid to the poor. Besides the Act, there also exists the National Action Plan on Legal Aid (2017-2022)4 whose main underlying spirit is ‘Towards access to justice for all in Kenya.’ This provides an opportunity to seek recourse to land dispute cases, and more specifically, land corruption related cases.

 

The 2017 East African Bribery Index released by Transparency International Kenya5 brought to light sources in which justice is on sale, with the Kenyan judiciary being one of the judiciaries that receive the biggest share of bribes paid by citizens to either influence the outcome of law suits or fast-track decision-making. This revelation is therefore a clear depiction that more still needs to be done in the fight against corruption, particularly in the Judiciary, where resolution of various injustices takes place, land corruption being one of them. There is thus need to strengthen the capacity of various institutions of governance to deal with the pervasive problem of corruption, to enhance public confidence in their ability to play their part in combating the vice.

 

 

 

1Article 14 of the ICCPR

2UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems Available at https://www.unodc.org/documents/justice-and-prison reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf (Last accessed 18th March 2019)

3Available at www.kenyalaw.org

4Available at www.statelaw.go.ke

5Available at https://tikenya.org/wp-content/uploads/2017/09/East-African-Bribery-Inde... (last accessed 10th February 2019)

Question 1: What are the challenges in implementing a dispute resolution system in Kenya and Ghana?

Traditional ( Customary) dispute resolution systems have been neglected but not totally forgotten. Reviving and adapting these will be of great asset. In my opinion implementing Western/ Christianity/ Islamic dispute resolution systems based on norms of totally different cultures will not work. This is a species thing and has nothing to do with Africans per se. It is part of the Human psyche.

Even though Section 12(1) of the Land Title Registration Law, 1986, PNDCL 152 makes it clear that no action concerning any land or interest in land in a registration district shall be commenced in any court until the procedures for settling disputes under the Law has been exhausted, for whatever reasons, the dispute resolution has never worked.  The law [Sections 12(1), 13(2) 21(2) 22(3) and (4)] grants exclusive jurisdiction at the first instance to the Land Title Adjudication Committees over disputes relating to registration of or interest in land.  Unfortunately the Land Adjudication Committee has never been allowed to function as a result of insincerity on the part of those who should have seen to their establishment. 

  • For the poor, they're expensive - travelling to attend, since they're held away from their residential areas-hotels.
  • Intimidating to the women-more education needs to be given to the women and be better prepared for before due date.

Alternative dispute resolution is now recognized in the Kenyan legal framework, through article 159 of the Constitution of Kenya 2010 and the scope widened under Article 189. 

Before colonialism, most communities in Africa and in Kenya had their own dispute resolution mechanisms. The institution of ‘Wazee’ exist in different names in most communities in Kenya (Muigua, K.  2015). Disputes in land include boundary disputes, ownership, land use conflicts and succession issues etc.

The challenges in the use of ADRs identified include lack of capacity in terms of personnel who can handle disputes under ADR.  Secondly there also lack of understanding.  Thirdly, the need to go back to courts for enforcement makes it a longer process of dispute resolution than was envisaged. Lack of awareness of the public on ADR methods has also been seen as a challenge.

ADR systems are not well advanced, acknowledged and publicized in Kenya. The scope of ADR are limited. They cannot address fundamental rights or complex issues. Moreover, ADR solutions are not final. They are subject to court challenges.

Publics’ perceptions and ignorance on the existence of Alternative Dispute Resolution Mechanisms in the present form. Majority of the members of the public are largely unaware of ADR as a legal system as opposed to their traditional or informal understanding. Very few are familiar with ADR, the publics mostly are aware of Traditional Disputes Resolutions which largely focuses on family matters.

Would sensitisation of the public therefore be the way to go?How do you think this can be made possible?

As much as the Kenyan Constitution as well as other statutes recognise ADR, ADR has still not been institutionalised. There should be structures in place to make alternative dispute resolution a reality, to ease the backlog in courts and ensure expedient resolution of justice. With clear defined structures to recognise and effect the informal systems of justice, it will be a beneficial way to increase access to justice for all citizens.

Poor enforcement of decisions.

Question 2: How to guarantee the access to justice for vulnerable communities?

We need to have more lawyers willing to work closely with the poor on land and housing rights. Better conceptualised national situation of what is going on-to enable them engage properly.

Make sure that the Constitution and other legislation are followed to the letter.

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