Afghanistan - Context and Land Governance

^{Beautiful view of Panj river, of the border between Afghanistan and Tajikistan the in Shughnon-shughnan region. Photo: Khwahan. CC BY-SA 3.0 DEED}

Under the Saur Revolution in 1978, communist parties overthrew the First Republic (1973-1979). Russian assistance was sought which resulted in Russian occupation until 1989. Rebel insurgencies, civil war, regular overthrow of leaders with new ‘republics’ followed, triggering mass displacement (1978-1996). This was most largely quelled by the victorious jihadist Taliban in 1996, to cautious international acclaim. In practice, the ultra-conservative religious Emirate of the Taliban failed to secure support beyond its Pashtun base, and was in due course overthrown, with support from US forces as part of its post 9-11-2001 ‘War on Terror². 

In December 2001, an international meeting in Bonn established an Interim Administration, becoming a Transitional Administration in 2004, with a new Constitution for the Islamic State. Multi-party elections were finally held in 2014, with fraught power-sharing since³. Taliban, claiming reduced religious fervour, have regained over half the country. Other groups contest most of the remainder, leaving the incumbent Administration with clear control over only 12% of the country including Kabul⁴. The Peace Agreement signed with the Taliban in early 2020 flounders, and talks restarted in 2021. The sustained if sharply reduced presence of foreign western forces remains a key thorn to agreed paths towards genuine peace and stability after four decades of conflict.

Not surprisingly, land relations in the land and resource dependent economy remain conflicted and advancement towards new paradigms to remove land causes of war became frustrated, and in some ways worsened. Illegal opium poppy production (Afghanistan was the lead global producer in 2019) entered the vacuum of stability, run on diverse competing stakes, including Taliban who tax production and transit in areas they control⁵. Despite billions of donor dollars invested in counter-narcotics since 2002, millions of Afghans  now depend upon poppy production⁶. Violence, inaccessibility and limited expansion of services outside cities, extreme rates of poverty, low life expectancy and infant mortality thrive, now exacerbated by COVID-19⁷. 

Refugees and internal displacement dominate demographics. Iran and Pakistan have been hosting Afghan refugees since the Russian invasion in 1979, reaching a peak of 6.2 million peoples in 1990. They still host 2.4 million Afghans today⁸. The resident population is 37.4 million⁹. Around 5 million Afghans are displaced, due to conflict and violence, others escaping disasters such as avalanches and floods¹⁰. Many flee to cities and towns and urbanization has risen by 4% since 2001. 26% of Afghans are now urban dwellers¹¹ and squatter (‘informal’) settlements have multiplied.

Diverse ethnicity (40 groups) characterizes Afghanistan, as a major crossroads from the pre-Christian era Silk Road onwards. Pashtuns from the east (Pakistan) began to dominate in the 18th century and comprise half the population today, followed by Tajiks (27%), Uzbek (9%), and Hazara (9%). Once a famed early site of Buddhism, 90% of Afghans now follow Sunni Islam. Hazara are the main group of minority Shia Islam followers. 

^{An overall view of a refugee camp in Kabul. NATO Training Mission-Afghanistan. CC BY-SA 2.0 DEED}

Land and property sector

Afghan law comprises supreme law (Constitution, 2004), subject laws approved by a two-house Parliament, inherited presidential decrees approved as still valid, and a Civil Code (revised 1977) expressing locally customised religious norms. All have force so long as they do not contradict Shari’a as defined by Hanafi Sunni jurisprudence. Distinctions between customary law and Shari’a are not easy to unpack as these have been mutually influential over the last millennium. Nearly half the 2,416 articles of the Civil Code regulate especially social property relations. The Code remains a primary source of law for courts. Judges may have either Islamic or secular training.

Feudalism and the harsh reality of limited cultivable lands have been key drivers in defining legal land rights and norms. Landlords may own whole valleys, deploying tenants and workers through historically exploitative crop-sharing agreements, producing chronic and inherited indebtedness (‘bonded’ labour). Only 5% of the country area is irrigable and another 7% usable in some years for rainfed farming.

Much of the 80% of rangelands and barren lands are available for only spring and summer grazing, and collection of essential fodder and fuel for the long winter. The largest and most fertile pastures are at high altitude, attracting most conflict. This is principally between nomadic pastoralists (kuchi) and settled communities¹². Most of the ca. 3 million pastoralists are Pashtun. Many Kuchi tribes can still produce leather-inscribed deeds, allocating them exclusive use of high pastures as reward for their role in expanding Pashtun hegemony deeper into Afghanistan from the 1880s. This was at the expense of local agro-pastoral Hazara, Tajik and Uzbek, Hazara specifically banned from owning livestock from the 1890s¹³.  The legal response to this conflict over the last century has been to nationalize rangelands, allocating use rights. This neither satisfies aggrieved local communities nor Kuchi who have come to depend profoundly upon priority and ideally exclusive access to high pastures.

Land legislation and regulation

The main land policy and laws are:

• National Land Policy, 2018: Provides Statements on 40+ subjects. Innovations on the 2007 Policy include commitments to: introduce community lands as a lawful and registrable category to cover for collectively owned customary lands; protection of rights during mining and other large enterprise; housing rights in cities to be supported; land grabbers to be harshly punished; new land valuation to be instituted; and new arrangements to be instituted to afford fair pasture access including by Kuchi.

• Constitution, 2004: based on the 1964 Constitution, with retained classical commitments to protect private property, pay compensation prior to compulsory acquisition for public purposes (both already in law in 1935) Post-Bonn lobbying for a chapter on land and property issues was ignored¹⁷. The only innovation is to enable foreigners to lease lands. 

• Land Management Law, 2018: (more accurately, a land administration law) first enacted in 1960, regularly revised since. This latest version clarifies land classes; lists eleven documents eligible to be used in compulsory registration of private lands, including customarily-signed deeds of transfer; provides for local testimony to enable those without documents to secure titles; refines a two-stage titling procedure by provincial delegations for survey and adjudication, and allowing for community level conflict resolution; retracts on post-Bonn decentralization trends to districts (although devolved in urban areas). Reiterates harsh punishments for land theft (by warlords, corrupt politicians, officials), promises regulations for restitution of those usurped (‘stolen’) lands.The law does not deliver on Policy commitment to introduce community lands, and limits community pasture ownership to those directly attached to villages.

• Registration of Urban Informal Properties, 2017: Defines State or Public Land within/adjacent to municipalities, focuses on adjudication and issue of titles or Occupancy Certificates for informal settlers, prominently including returnees, nomads, and destitute landless. Upgrading planned and may involve compulsory acquisition to establish new housing estates and services. Procedures devolved to municipal and sub-municipal levels.

• Land Acquisition Law, 2017: this law embeds most Policy Directives on expropriation. Procedures must be exercised through a public authority, strictly follow the law, not involve forced deprivation of land, public purposes narrowed down, compensation to be paid promptly (but not necessarily prior) to acquisition, resettlement provided where a whole rural or urban community is involved, and owners retain pre-emptive rights if the public purpose is not carried through or ceases. A main shortfall again stems from failure to recognize collective rights in the customary regime, applicable to rangelands, or to take account of family size at compensation. A Resettlement Policy aims to adhere to international standards.

• Decree on Identification and Allocation of Suitable Land for the Reintegration and Construction of Affordable Housing for Returnees, IDPs, and Families of Martyrs of the Country’s Security and Defence Forces, 2018: pledges title deeds for lands so occupied with proximity to services, water supplies and work opportunities.

Land tenure classifications

The main forms of land tenure in Afghanistan are:

• Endowed land (Waqf): plots dedicated to religious or social purposes, which cannot be sold once gifted.

• Private Land: house, farm, and company properties, which must be cadastrally registered¹⁸. The Land Management Law permits leaseholds between private parties on arid and virgin state land (up to 90 years for non-agricultural use), or on agricultural land (up to 50 years). Non-private leaseholds are granted by the Ministry of Agriculture, Livestock and Irrigation. Other government institutions have the authority to lease out land up to 5 years. Tenancy and annual sharecropping agreements must also be registered in the relevant parcel file.

• State Land: includes urban and rural lands of any type (e.g. orchards, grasslands, wetlands, buildings) recorded as belonging to the State since 1977. The State may allocate for settlement schemes or for a public development. Managed directly by appropriate government agencies.

• Public Land: defined as unowned and unownable, used collectively by the public but not individuals, and monitored and managed by Government. Almost all is rangeland with seasonal or all-year grazing potential. May not be sold, occupied, leased or divided. Divided into Public Grazing Land – available to all citizens (under permits) and Special Grazing Land – located within the boundaries or next to villages for collective use as parks, playgrounds, graveyards, mosques, bazaars or grazing. 

Land policy and laws express ambitions that do not reflect reality on the ground where 90% of occupation is informal or customary, and delivery on intentions to regularize customary, informal, and all other landownership in a single integrated regime is remote. However, good progress regularizing informal settlements through the issue of Occupancy Certificates offers hope. Questions remain as to mass rural titling, which remains costly and cumbersome, the systems conflicted, and undermined further by corruption. 

Land vulnerability and insecurity is rife after decades of land grabbing and malfeasance, and overlapping claims to houses and farms created by long absences of exiles and refugees, innumerable disputes in cities, towns and new rural settlements due to population growth, displacement and warlords¹⁹. Legal reluctance to acknowledge collective grazing properties has not resolved festering inter-tribal and settled-nomad grievances affecting large parts of the country²⁰.

Institutional governance has seen progress since 2001. The Supreme Court has agreed to gradually surrender its century-long function as the issuer of titles and maintaining registers, in favour of focusing on land dispute resolution. Disparate land service agencies in 2001 have been amalgamated under the Afghanistan Land Authority, consolidating power within Government after a brief experiment with decentralised autonomy²¹. 

Land use trends

FAOSTAT data on land use in Afghanistan remains remarkably steady over the past 60 years, perhaps a reflection of development stasis for a land shrouded in conflict²². Despite urbanization, 75% of Afghans remain in rural areas, and the workforce is predominantly agricultural. Crops and livestock normally provide 60% of GDP²³. FAOSTAT consistently measures agricultural land at 58% of the country area of which nearly 80% are meadows and pasturelands. There has been steady growth in poppy production since around 2002, despite this being sharply curtailed under Taliban rule in the 1990s, and high-cost anti-narcotic programmes launched by donors in the 2000s²⁴. Poppy places enormous pressure on limited water sources and provokes heated disputes and violence. While mine clearance was successful in the 2000s, remoter rainfed farmlands remain afflicted. Tenure insecurity and threat of violence further inhibits food production and security²⁵. 

Forests have always been few, and have shrunk further to 2% of the total land area (FAO 1993 data). Initiatives to expand forests to 10% have fallen foul of weak institutional capacity and accessibility²⁶. At the present rate, all forests will be lost by 2050. Deforestation, overgrazing and climate change increase landslides, soil erosion, watershed degradation, reduced biodiversity and desertification²⁷. Displacement due to disasters accounts for one third of cases in Afghanistan, the rest the result of violence and conflict. Over half a million Afghans were displaced in 2019 alone²⁸. Special protected status has been given to four sites - Band-e-Amir National Park, Big Pamir Wildlife Reserve, Teggermansu Wildlife Reserve and the Wakhan Conservation Area²⁹.

Kabul increased from 500,000 in 2001 to over 4 million residents by 2010³⁰, and as in other cities this has taken a toll on infrastructure. Urban planning has been unable to sufficiently limit or direct in-migration, or counter corruption. Rural inequality remains as high and perhaps higher than as in feudal times, despite decades of legal reforms. There is also a high level of fragmentation with 60% of agricultural land holdings (22% of agricultural land) under 1 hectare³¹.

Land investments and acquisitions

Despite 20 years of targeting foreign investment to help recovery, and securing international support in 2012 to develop resource corridors and extractive excellence, many investors have stepped back due to revived civil war, corruption, poor infrastructure and uncertainty³². One of the earliest ventures, the USD 1.3 billion Chinese-funded Mes Aynak Copper Mine (2009) never got off the ground, due to post-agreement failures in negotiating terms³³. Major infrastructure projects have been signed up to including a railway linking Turkmenistan, Tajikistan and Afghanistan (2013), but are on hold³⁴. Afghanistan is also hoping to benefit from CPEC (China-Pakistan Economic Corridor). Foreign investors need an Afghan partner to operate within the country, with foreign land ownership not permitted³⁵. Despite the wariness of investors, land values in urban areas increased more than 1,000% from 2002-12, due to a rush of returnees and exiles and very high rentals paid by the arriving donors and organizations³⁶. Rural land values have also increased due to the explosion in poppy cultivation.

Women’s land rights

The Constitution recognizes the valuable contribution women make to the national economy and guarantees their equal rights⁴⁴. Yet patriarchal structures through religious and customary systems act as a barrier to their empowerment⁴⁵. Only 36% of girls enrolled at secondary school in 2017, and only 5% at the tertiary level⁴⁶. Women are frequently secluded from society, forced marriage is common, polygamy is still permitted under Islamic Law and the Afghan Civil Code, and women endure one of the highest rates of domestic violence in the world⁴⁷. Again, laws and ratification of the Convention for the Elimination of All forms of Discrimination against Women (CEDAW) in 2003 are on paper only⁴⁸.

Women’s land rights in Afghanistan are weak. Under Shari’a, women may inherit one-eighth of property from the deceased spouse, while daughters receive half the share of land compared to sons⁴⁹. In practice, land falls into the hands of male relatives, with very low levels of registration of women as owners (c. 2%), mostly widows⁵⁰. Several programmes support women’s property rights, such as a USAID and UN-Habitat supported Government programme which enables women to obtain Occupancy Certificates in Kabul as joint or sole occupants⁵¹. 

Political participation is also limited for women, who are not allowed on local councils (shura or jirga). They are hardly involved in peace talks relating to recent conflicts⁵². However, 27% of seats in the national parliament are now set aside for women. NGOs lobbying on women’s rights include the Afghanistan’s Women’s Network, established in 1995, and Afghanistan Women Council, founded in 1986.

Voluntary Guidelines on Responsible Tenure (VGGT)

In the development of secure institutions and land tenure, the VGGT has become a touchstone⁵³. Indeed, Afghan authorities showed an active interest during the developmental phase of the Voluntary Guidelines, contributing to debates on their content and use⁵⁴. Donor-supported projects since 2012 have looked therefore to the VGGT as a frame for developing land governance in the country. For example, the World Bank -supported Afghanistan Land Administration System Project (ALASP) which began in 2019 aims to improve institutional capacity, information services, and mapping, and draws upon the VGGT⁵⁵. 

^{Naray, Afghanistan. Photo: R9 Studios (CC BY 2.0 DEED)}

Timeline - milestones in land governance

1978 – Saur Revolution
Communist forces took control of the country in a violent coup.
 

Where to go next?

The author's suggestion for further reading

For more details, refer: The World Bank’s Land Governance Assessment (LGAF) 2017 carried out by AREU⁵⁶; Alden Wily 2013 for an analysis of land issues between 2002-2012;⁵⁷ UNEP for an analysis of linkages between resource management and peacebuilding⁵⁸; and Gaston and Dang for USIP for more general analysis on land conflicts⁵⁹. There are numerous subject specific land studies and reports available at the Afghanistan Research and Evaluation Unit (AREU).

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