Madagascar: strong concerns around the new land law
At its last meeting on 10 November, the Committee's experts exchanged views on recent legislative developments in Madagascar and expressed their concerns regarding the likely adoption of Law 2021-06. This calls into question the recognition of customary land rights and leads to a reversal of the decentralized land management process that had been under way since 2005.
According to the Committee's experts, if implemented, this law could have far more serious consequences in land losses by Malagasy families than the impact that the Daewoo project could have had in 2009. This South Korean company was to benefit from a concession of 1.3 million ha of land for the cultivation of oil palms and maize. This led to a very strong popular protest and an important international media relay, contributing to the fall of the President of the Republic at the time.
The Committee's land experts shared their analysis of this law and its risks.
1. The new 2021 law seriously calls into question the achievements of the 2005 land reform
· Citizens who do not possess title or land certificate may be evicted without any compensation,especially if their land is involved in a mining permit (art.21) or in a project declared to be of public interest (art.22). This affects a large majority of households, especially women (widows, abandoned) who do not have the financial means and the time to take care of the steps allowing them to formalize their customary rights through land certificates.
· Land certificates, issued by municipalities, are becoming much more difficult to obtain. They may only be given to persons who have occupied and developed their land for more than 15 years and before 2006 (arts 2, 6 and 7). This duration is enormous and in practice very difficult to prove without written documents. The main victims will be the young people of present and future generations. Moreover, these articles of law have a retroactive content that is highly questionable from a legal point of view.
· A legal person can no longer obtain a land certificate (arts. 2 and 45), but must register its land within one year. After this period, if the land is not titled, it will enter the heritage of the State. However, the average duration to obtain a title is 6 years. Cooperatives and producers' organizations, women's associations, are in danger of losing their land.
These new conditions for being able to apply for a land certificate are a step backwards in terms of land management. The other alternative to have one's rights legally recognized, the land title, is indeed a document inaccessible in practice because complicated to obtain. There are 21 or 23 steps to follow, it takes about ten years, it is very centralized because, the services are not in all the districts of Madagascar. And above all, the land title is extremely expensive (about 600 euros against 10 to 15 euros for the certificate). This represents the income from two years of work. To remove access to the land certificate is to permanently remove the possibility for millions of peasant men and women to have access one day to an official document of land ownership.
Municipalities see their power and competences reduced in terms of land management. They will only be able to intervene in territories limited in area and they will depend on the land administration to open their land counter and train their teams. These provisions (Articles 8 and 37) are also questionable with regard to the autonomy of the Decentralized Collectivities advocated by the Constitution.
2. The risks and impacts of this new law
For the members of the Committee, the new law 2021-016 would lead to a regression of the protection of the land rights of the majority of Malagasy citizens whose consequences are likely to be very serious.
· It confers disproportionate power on the state's land services. The latter will be able to subjectively assess the state of development of the plots, at the risk that the peasant exploitation is not recognized, to facilitate the integration of the land into the domain of the State. They will no longer have the obligation to take into account the rights of households if they do not have legal property documents... which is the case for an immense majority. They will be able to lease or sell land more easily to all actors (national or foreign) who will have the means (capital, high level of education and information, networks).
· It thus risks transforming several million inhabitants of rural areas into "landless peasants". The risk of seeing many lands belonging to Malagasy peasants, transformed into state land that will be titled in the name of the State and sold to the richest, is therefore not negligible. The phenomenon of land grabbing is likely to take hold on a large scale.
· The weakening of peasants' land rights will have a definite direct impact on agricultural production and on the worsening of food shortages in the country, while food self-sufficiency is one of the 13 velirano (commitments) of the President of the Republic.
· The impact on the arrival of investors, which the country's leaders say they want to attract, is by no means guaranteed. Indeed, investing in land that has been the subject of evictions by peasants and is the subject of conflicts risks jeopardizing investors' projects and making it more difficult for them to access financing: banks often take into account bad reputation and risk analysis in their decisions, especially the risks of social crisis.
This law would constitute a real setback in the recognition and securing of local land rights and would be in full contradiction with the principles set out in the "Voluntary Guidelines for the Responsible Governance of Tenure" and the "Frameworks and Guidelines on Land Policies" of the African Union.
The six umbrella farmers' organizations (CPM, FIFATA, FVTM, FEKRITAMA, KOLOHARENA and Réseau SOA) and civil society organizations (PFNOSCM VOIFIRAISANA and Collectif TANY) have already raised through several communiqués and letters addressed to the President of the Republic the dangerous nature of many articles of the new law and ask that the ongoing process be suspended.
The international experts gathered in the Technical Committee "Land & Development" are closely following the evolution of this legislative process. They hope that the decentralized land management in which the country was engaged can continue the initial trajectory that the State had driven it, without the land reform being diverted from its initial objectives.
Reminders on the Land Reform of 2005
The colonial land regime instituted in 1896 considered that all land belonged to the State (the "presumption of statehood") except private land properties with a title issued by the land services of the State. It was a question of preserving the property rights of the settlers and the country's economic elite. In 2005, a century later, and more than 40 years after Independence, a Land Reform was put in place to allow more citizens, especially peasants, to obtain legal recognition of their land rights. Law 2005-019 on land statutes replaced the presumption of ownership with the presumption of ownership and created a new status of land: unt titled private land ownership (PPNT) governed by Law 2006-031. The occupation and development of plots by peasants is now a source of "unsused" property, which can be proven by a written document, the land certificate, issued by the municipality following local social recognition. Even without a land certificate, Malagasy citizens who were unable to access land titles, due to their high cost and the length of the procedures, became owners of their plots. In 2021, sixteen years after the reform, 520,000 land certificates have been issued through communal land counters and 300,000 files are being processed. A significant figure compared to the number of land titles – estimated at 600,000 – issued over a century.