Angola & Mozambique - Online discussion on customary law - 28 June - 9 July | Land Portal

 


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    1st Week

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    This is the discussion thread on Angola & Mozambique, as part of the Online Discussion "Customary law and institutions - Protecting or undermining community land rights in Southern Africa?"

     

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    Welcome to the country focused online discussion space where we aim to critically examine  the changing role of customary law and institutions in the management and administration of land under customary tenure in the former Portugese colonies in Southern Africa.

    We start the discussion by trying to understand a little about the history of the two countries. Both countries waged guerilla wars to end Portuguese rule and both countries experienced long periods of internal conflict following independence from Portugal.

    • What were the main approaches taken by the respective colonial and settler governments in Angola and Mozambique to customary law and governance systems?

    • In what ways have post-colonial governments in the two countries changed these inherited systems?

    • What has been the thinking behind these changes?

    Bem-vindo ao espaço de discussão online centrado no país, onde pretendemos examinar criticamente a mudança do papel do direito consuetudinário e das instituições na gestão e administração de terras sob posse consuetudinária nas antigas colónias portuguesas na África Austral.

    Começamos a discussão tentando compreender um pouco sobre a história dos dois países. Ambos os países travaram guerras de guerrilha para pôr fim ao domínio português e ambos os países viveram longos períodos de conflito interno após a independência de Portugal.

    • Quais foram as principais abordagens dos respectivos governos coloniais e colonos em Angola e Moçambique aos sistemas de direito consuetudinário e de governação?
    • De que forma é que os governos pós-coloniais dos dois países alteraram estes sistemas herdados?
    • Qual tem sido o pensamento por detrás destas mudanças?

    Traduzido com a versão gratuita do tradutor - www.DeepL.com/Translator

    We are posting amalagamated responses from our prediscussion survey. Responses have been anonymised. Many thanks to all who contributed.

    Land Portal Online Discussion 2021

    Customary law and institutions - Protecting or undermining community land rights in Southern Africa?

    Mozambique

    Google form returns summarised

    Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems? 

    • 70%

    • 60%

    • 80%

    • 60%

    • 80%

    Data source

    Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance

    • Yes. The role of customary institutions is recognised and incorporated in various ways; community representatives, often 'customary leaders' are formally recognised by the state under statutory law (Decree 15/2000); 'local communities' are recognised as having a formal role in land allocation, may define themselves through customary allegiance, and must be consulted regarding land in their areas; 'customary norms and practises' are recognised as legal forms of obtaining a right to land.  

    • No. Most of the land in my country are from government politics person

    • Yes. Traditional leaders represent the community in customary land systems. There's difference around the country, patrilineal system center and south and matrilineal system north, which means different social organisation of chieftaincy in terms of succession and locality. colonial and post colonial states had influenced the role of traditional leaders.

    • Yes. Consists of a hierarchically organized territorial structure of so called "regulos", often selected on the basis of kinship position in local social structure but formally recognized by the government.

    • Yes. Mozambique has a system of about 1,600 community courts that have evolved separately from the formal court system. In addition, community leaders are appointed by the state and govern affairs usually in conjunction or separately from traditional leaders. The community courts are highly accessible, and community members often bring land disputes to these forums . Because the new Land Law does not require communities to register their rights, local governments and investors often fail to recognize the extent of community land and the nature of community land uses, and community consultations are often ineffective. The Constitution recognizes legal pluralism whenever fundamental rights are not contradicted, resulting in a legal regime that combines formal and customary law. Most rural lands are managed by customary law and by traditional authorities, although traditional leaders are not formally recognized. Land is held by communities and individuals with unregistered legal deed acquired through customary and good faith occupation. Only around 951 of 5000 rural communities in Mozambique had actually registered their lands.

    • Yes

    Is there national legislation governing the role of traditional leadership institutions?

    • No

    • Yes. Land Law

    • Yes. Lei de terras (Lei no 19/97, de 1 de Outubro, .http://www.verdeazul.co.mz/wp-content/uploads/2020/09/Legislacao_de_Terras-3.pdf 

    • Not explicitly but indirectly through e.g., the land law - Land Law, Law of Decentralization

    • Yes. The 2004 Constitution of Mozambique states that the ownership of all lands and natural resources vests in the state. The 1997 Land Law lays out the DUAT system, and provides rules for the protection and utilisation of communal land. All customary land has been automatically recognized as indigenous property.The 1998 Rural Land Law creates laws for the acquisition and transfer of use-rights. This mechanism facilitates and supports the current informal land market, where basic assets are sold for large sums.

    • Mozambican Land Law of 1997 Law No. 19/98  https://jurisafrica.org/docs/statutes/Translation_of_Land_Act_of_1997.pdf 

    What is the legal status of customary law in Mozambique

    • It is legally recognised alongside statutory law

    • It is legally recognised alongside statutory law

    • There are legally recognised traditional courts

    • There are legally recognised traditional courts

    • There are legally recognised customary courts

    • There is a reliance on living customary law

    • Customary law remains informal and in the margins

    • It is legally recognised alongside statutory law

    • There is a reliance on living customary law

    • It is legally recognised alongside statutory law

    • There are legally recognised traditional courts

    • There is a reliance on codified customary law

    • There is a reliance on living customary law

    • There is a reliance on living customary law

    • Customary law remains informal and in the margins

    Is traditional leadership hereditary?

    • Not necessarily

    • Yes

    • Yes

    • Yes

    • Yes

    • Yes

    Are there instances when traditional leaders are locally elected by their community?

    • Yes

    • Yes

    • No

    • No

    • Yes

    • No

    Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?

    • Yes

    • Yes

    • Yes

    • No. In practice communities might however ask government authorities to replace a regulo they are dissatisfied with

    • No. Not sure - traditional leaders have generally been mistrusted by the state, and replaced with state actors. However, customary 'living' law generally is applied and customary rules of succession are upheld in rural areas.

    • Yes

    Can women assume traditional leadership positions?

    • Yes

    • Yes

    • Yes

    • Yes

    • Yes

    • Yes

    Do recognised traditional leaders receive salaries or stipends from the state?

    • The right to a stipend flows from their recognition as a 'community representative' rather than a 'traditional leader'

    • Don’t know

    • Yes

    • Other: Provided they are formally recognised by the state

    • No

    • Yes

     

    Can they legitimately impose levies or fines on communities they represent?

    • Yes. Customary fines can be applied, and commissions are paid for witnessing local transactions, including for land

    • No

    • No. Traditional leaders - represent the community in their relationship to state, and NGO  representative and also investors; exemples in consultancy; traditional leaders are recognised as land owners, which means that they allocate the land for members of the community and outsiders.

    • Yes. Collection of taxes within their areas of influence

    • Not sure if they can impose levies, but because traditional leadership positions overlap with state positions in many cases they can. In many matrilineal areas (in the north) women can assume leadership positions but this is not so in the southern areas.

    • Especially in communities without "community-based institutions", leaders have power to impose order and take decisions about the management of land and the existing natural resources in their territories.

    How would you rank the political influence of traditional leadership institutions?

    • [2] 

    • [5] Corruption

    • [8] Formally establish the link between state and communities; so the state representatives and politicians tend to have they in theirs side; in crucial moment, of example, during the elections, they play important role

    • [7] After the re-recognition of traditional authorities in the early 1990s there has been a tendency of the government to govern rural areas through the local chiefs, strengthening the power position of the latter locally. To some extent the 1997 land law adds to this.

    • [6] Generally it is experiencing a resurgence due to DUATs 

    • [6] The influence only occurs when the government has an interest in using the land of the territory under the governance of a certain leader. Here the leader is used to influence the ceding of land, even without consulting its residents.

    What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?

    • Customary tenure largely recognises family/clan level rights to land, with higher level customary institutions intervening only to resolve conflict or approving allocation of land to 'outsiders'.

    • No answer

    • Formally they are land owners in the communities. Historically they were constituted as [incomplete]

    • They are usually considered the ultimate "lords of the land" and decide over the allocation of especially still unoccupied community land

    • A big role - many areas of Mozambique are remote, and customary institutions still govern land allocation.

    • Traditional leadership institutions are often used to operationalize the government's interests when it wants to obtain land for any purpose.

    How is land inherited and passed down the generations?

    • Depends on geographic area. Both matrilocal and patrilocal systems exist. Customary systems at odds with statute but gap closing.

    • In the community

    • No answer

    • Through sons or daughters depending on the descent system of the area, e.g., patrilineal or matrilineal

    • Through the male line - this applies to matrilineal areas as well. However, under law women can inherit land.

    • Generally, younger people inherit land from their parents, grandparents, great-grandparents, etc.

    Do customary law and institutions enable women to access land independently of men?

    • Increasingly yes

    • Increasingly yes

    • Generally no

    • Increasingly yes in the matrilineal societies in Northern Mozambique

    • Increasingly yes

    • Increasingly yes

    How would you rank the security of women's land rights under customary tenure systems in Mozambique 

    • [7] 

    • [7]

    • [9] Generally, women access to land indirectly, intermediated by men, as wives, daughters, nieces; even in the context of matrilineal systems, in northern Mozambique, women access to land via men

    • [5]   Depends very much on the descent system. See above

    • [6] I think that women do not have much access to land in rural and remote areas and that under those areas that are not urbanized this is particularly so. However, in villages and towns that are resettled and have a state appointed leader or community leader land allocation can be made irrespective of gender. This is also the case in urban areas.

    • [6] The land law defends security of woman´s land rights, but the reality shows that there is still hard work to be done in order to make it possible.

    What role do traditional leaders and customary institutions play in mediating land related disputes?

    • Can be arbiters, but only where disputants need intervention since costs are usually involved 

    • No answer

    • They have different roles: participate in conflict resolution, judge cases, represent lineage groups,

    • A crucial role - especially in the case of intra-community conflicts

    • A big role, but in many cases state appointed courts and boards play a role in mediating conflicts in urban areas or towns.

    • The customary institutions play strong role in mediating land related disputes

    Which statement best describes customary institutions in the country under review?

    • They remain adaptive and downwardly accountable and responsive to the land rights and needs of communities

    • No answer

    • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

    • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

    • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

    • They have been increasingly captured by elites and have become vehicles to accumulate power and wealth

    General remarks and additional information

    • Traditional leaders are under pressure from different driving forces. Historically they were manipulated by colonial power. They were banned after independence and, in the context of neoliberal reforms, they were replaced in different conditions. 

    • Mozambique has a large informal urban population that operates under informal land rules.

    • Mozambique's land law is good, but communities are not sufficiently informed and prepared to act actively in defense of their land rights.

    The arrival of the Portuguese disrupted all aspects of the traditional society. Laws enacted in 1838 and 1865 governing land concessions to Europeans allowed “unoccupied” land to be appropriated for white settlement. “Unoccupied” land was interpreted as land not being farmed at the moment but did not include lands lying fallow as part of traditional shifting agriculture (Santa Rita 1940). These colonial laws ignored traditional customary law, which defined land as belonging to the community and not to individuals (Bender 1978).  Portuguese domination inevitably obliged African families to abandon their lineage-based economies and to accept a market economy, producing cash crops or entering into labor contracts in order to pay taxes (Margarido 1972, 36). As taxes were levied per household, there were increasing pressures for the nuclear family to enter the cash economy and assume effective permanent ownership of the parcels of land that they used or kept fallow for future use (Pacheco 2002). The estates of colonos were on the best lands, closest to markets and accessible to transport routes. They were made available by the removal of thousands of Africans from their traditional lands. By the end of the colonial period, white settlers had claimed 41 percent of all surveyed farmlands, most of which they never used. With the establishment of forest and game reserves, more land was barred from use by African farmers and pastoralists. 

    After independence in 1975, individuals were no longer able to buy private land, but were instead granted “occupation” rights, which meant that they had the exclusive right to use the land, although it formally belonged to the state. The traditional land rights of peasants and small-holders were not dealt with under the 1992 law, even though the rights of communities were supposed to be protected under this legislation. Over the course of the war, millions of people fled the fighting in the countryside and headed for the relative safety of towns and cities in the war-affected provinces. Under the current 2004 land law, these rights are only granted in the few areas where an approved urban development plan already exists. Therefore, the vast majority of those who feel that they have occupied or purchased their land in good faith, or started out with an informal occupation and later regularized it, are in fact still at risk of expropriation by the state or even by commercial developers who have secured clear legal concessions.

     

    Ref: Allan Cain - Angola: Land Resources and Conflict - https://doi.org/10.4324/9781849775793

    Many thanks Allan for your insightful summary above. 

    Can you comment on the approach  Portuguese colonial state to  institutions of traditional authority/leadership in Angola. Were there attempts to co-opt them and if so how successful were these? Once the MPLA government came to power with a socialist programme what was its attitude to customary law and institutions? Were these considered to have collaborated with colonial power as in Mozambique and marginalised? Did recognition of traditional leadership play a role in the civil war?

    Following the end of the war some 3 million people were reported to have  returned to their rural areas of origin. This was thought to consolidate the power of traditional leaders as they were the only ones with capacity to mediate disputes relating to conflicting and overlapping rights in land. Article 9 of the 2004 Land Law  required that the State respects and protects the land rights of which rural communities are titleholders, including those founded in use or custom but also allowed for their expropriation. Did this or other subsequent law regulate the functions of traditional authorities and leaders known as sobas to administer, mediate and adjudicate land rights?

     

    There is a strong academic body of work that examines, from many different perspectives, the somewhat tortuous and shifting relationship between Mozambique’s post-independence rulers and the customary authorities of the country. I am no match for the credentials of those that have contributed to this body of work and can offer only a very crude summary of the changing role of these customary institutions in the management and administration of land. It goes something like this: after independence from the Portuguese, FRELIMO inherited a divided country that was deeply distrustful of centralised government. Various decisions by the new republic’s government immediately estranged the rural population, amongst them the 1975 Constitutional edict that all land was state property, and the complete abolition of customary structures and traditional authorities. The estrangement led to civil war and the rulers discovered that the party cadres, who they had appointed in the place of the customary authorities, were as likely as their predecessors to be bad at land governance.

    The Party Congress in 1989 brought with it a shift in political direction. Described as an ‘internal revolution’, it was driven by party members who perceived the state as an inefficient manager of enterprise, who wanted to benefit from selectively applied neoliberal policies. Congress resolutions eliminated the restrictions on party members around capital accumulation and annulled limits on the number of workers they could have on their farms or within their businesses. But the customary authorities remained marginalised.

    Then, almost a decade later, when the 1997 Land Law was being discussed, the government began to acknowledge and incorporate the continuing power of ‘traditional’ chiefs over local land allocation. Anthropological research in the context of developing a new land policy found that chiefs’ control over natural resources remained strong and that rural people broadly saw it as legitimate. This was reinforced by the fact that the customary authorities had been the only authorities in a position to oversee the post-war return, in which many tens of thousands of refugees and internally displaced had been able to resettle and re-establish farming activities, often in new areas and without much conflict. So, FRELIMO, recognising that these customary structures “were carrying out an important ‘public’ service at very low cost to the state … decided that rather than mandate an entirely new mechanism for natural resource management, it made sense to give [customary] systems full legitimacy under the law of Mozambique” (Tanner, 2002). Accordingly, a raft of policy and legislation in respect to land and natural resources referred to, and acknowledged, “customary norms and practises”. Pointedly, however, there was little reference to “customary” or “traditional” authorities.

    Instead, FRELIMO embarked on an increasingly schizophrenic journey of centralisation and decentralisation, giving with the hand of policy and law, and taking away again with the heavier hand of power, resources, and implementation plans. In part, this was driven by a concern with democratising decision-making at a local level, with roles that would have been the purview of the customary authorities in the past now being formally attributed to ‘local councils’, or to ‘community tribunals’. But when it came to the real devolution of power, the authorities often balked at the idea - Article 30 of the Land Law, which had called for regulations as to how local communities could be represented as land-holding entities, was ignored for the next 20 years; the government allowed for the reinstitution of ‘community authorities’, replete with uniforms and stipends (as in the old days), but manipulated the (s)election of these people by many of the communities; there was a blurring of the public and the private, with the government preferring to treat a land-holding community as if it were merely a group of citizens living within a particular area, having only a legitimate interest in what happened to the land, rather than as an entity which owned the exclusive right to occupy that land.

    So where did this leave the customary authorities? From my perspective (which is one of an interested observer/practitioner trying to work out, for very pragmatic reasons, who should legitimise land transactions at local level), it seems to me that in many areas of Mozambique, the situation is as follows: the customary authorities are a) largely intact, b) not nearly as powerful viz-a-viz land allocation as I was led to believe, c) more or less accountable to their local populations and d) willing and able to provide a service in return for an administrative fee. There are exceptions, of course: the paramount chiefs who cut deals with the forestry company and sell land without consultation and consent, the drunken and the lazy, the excessively patriarchal, etc. But, overall, I would characterise the customary role in respect to land in Mozambique as a largely benevolent one, played by a group that was divested once (and completely) of its formal power and that understands the limits of its local legitimacy. It lacks the political power of the Zambian or Malawian customary lobbies, and will never be able to hold policy-making hostage in the same way as those groups; it will never attain the legal heights of allodial ownership held by Ghanaian chiefs, and lacks their pomposity because of it, and; it will probably continue to provide a local, accessible, affordable land administration service, solving conflicts and witnessing transactions, if it is allowed to do so. Personally, I hope that the current discussions in the context of amending the 1995 Land Policy embrace the incorporation of the customary authorities in pragmatically addressing the crisis and yawning gap that exists in respect to formal land administration at local level. I think there is a need to temper their role with checks and balances and safeguards, that place power in the hands of ordinary people, but I also think that the customary authorities of Mozambique are generally amenable to a leisurely process that would see customary norms and practises transformed and democratised.

    Simon, although I agree with most of what you said about customary authorities in Mozambique, I was a bit surprised that you did not mention the fact that chieftancies in Mozambique are territorially nested hierarchical  structures where chiefs (or "regulos" as they are called) have rather different powers and roles when it comes to administration and governance of land.  In other words, what is your assessment of the significance today of this chiefly structure in terms of social legitimacy, decision-making power and control  over land, downward accountability, etc?   Also I wonder whether you think that the policy in Mozambique of formalizing communities as collective landholding units has any implications in this context, i.e., for the role and relationships between regulos at village vs. higher-order territorial levels? 

    Thank you Simon for this valuable contribution to the discussion. It would be great if we could replicate such a concise and clear analysis for each of the countries in the SADC region. It is rooted in the evolving history of Mozambique to reveal the evolving mix of contestation and accommodation between the state and customary institutions. At the heart of your analysis is the current balance of power between the central state and those in customary institutions at local level and the need for checks, balances and safeguards. You suggest that because customary structures have experienced complete divestment of power in the past they have recalibrated their roles to exercise more restricted powers in the present and the future.

    A key question which remains is the process of how land gets allocated for investment and who are the winners and losers as a consequence of these deals.  It has been argued that the current conflict in Cabo Delgado has its roots in land alienation, forced removals due to mining concessions in a context of chronic poverty and unemployment, as opposed to the official explanation of ‘Islamic terrorism’.  It was projected that as a consequence of investments in Liquified Natural Gas local communities stood to lose approximately 6 785 ha of land as well as access to fishing grounds. To what extent is the loss of land rights contributing to the escalation of conflict there? In the legal system is customary law trumped by statute and the agendas of political elites when it comes to such deals?

    Dear participants,

    For the second week of discussion starting on Monday (5h July) we will move the conversation back to the plenary space. The country pages will remain open over the week as 'read only’. 

    Let us know your thoughts! This week we will talk about:

    1. How customary law is adapting to protect women's land rights?

    2. What good practices exist in liking statutory and customary institutions?

    3. If SADC was to develop a policy on land governance, what would be your recommendations so that it recognises customary law and institutions?

     

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