Ethiopian Community Development Council-Center for African Refugees and Immigrants Conference

Why Land Tenure Matters for IDPs: Lessons from Sub-Saharan Africa

Introduction

The issue of land and land tenure systems is moving beyond the purview of legal analysts and on to the agenda of humanitarian practitioners. Many analysts, including the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons (RSG), have recognized that addressing restitution, compensation and land reform issues are crucial to developing long term solutions to displacement.[1] Issues around land have clear implications for those working directly with displaced populations in emergency settings and for policy-makers developing durable solutions to bring an end to displacement. In order to grapple adequately with land and property issues for IDPs in Africa, the various forms of land tenure used must be understood.

Here, I will describe the two common land administration systems found in Sub-Saharan Africa: statutory and customary systems. While both systems regulate land ownership and use, they do so in very different ways. After describing the processes they use and explaining how and why they often converge, I will highlight some of the key reasons why practitioners should pay attention to land tenure issues and will identify some of the problems customary land tenure poses for the continent’s IDPs.

Forms of land tenure

Statutory systems

Statutory tenure systems are established by national governments. Generally, uniform rules and regulations are implemented by a central authority and a standard, codified registration system is used. Ownership rights are usually ascribed to the person or persons whose name is on the title, deed or registry and sales and transfers can be executed with any willing buyer.

Though often regarded as the more predictable of the two tenure systems, statutory land tenure can cause several problems for displaced persons. Statutory records can be destroyed during conflicts or natural disasters or become lost as people are forced to move from their homes. Following the tsunami, residents of Aceh, Indonesia were unable to prove ownership of their land and property with the death of 30 percent of land registry staff and the destruction of land and identity documents.[2] Armed groups may also purposefully target their adversaries’ land registries as occurred in East Timor. The Indonesian military burnt land titles and destroyed land offices to make future returns and reconstruction more difficult.[3] Similarly, land registries holding titles for valuable irrigated lands have been destroyed in Somalia as a result of the conflict.[4]

Customary land tenure

A great deal of policy research has focused on IDPs’ housing, land and property held under statutory systems in Africa, South Asia and Latin America. Customary systems tend to be excluded from these analyses because they are perceived as too diverse and complex for practitioners to adequately engage with. Yet the imperative is particularly high in Africa where more than 90 percent of land is administered outside of the formal legal system.[5] Given that the continent hosts almost half of the world’s IDPs,[6] customary systems meaningfully impact the lives of many displaced persons.

While there is considerable variety in customary systems, their key identifying characteristics are: 1) varied land tenure relationships; 2) non-codified methods of preservation; and, 3) custom and community. I will describe each of these in some depth.

1. Varied land tenure relationships

Land tenure in customary systems prescribes very different tenurial relationships from Western-style private property and ownership rights as described previously. Tenure may take several forms and may prescribe rights of individual use, free and open access, consecutive use or serial use.[7] Moreover, such use rights are often multilayered, prescribing overlapping rights in a single region or plot, at times using seasonal rotations.[8] For example, some analysts[9] differentiate between: primary right holders who distribute land rights to community members; secondary right holders who have some say over land administration due to birthright; and, renters or sharecroppers, known as tertiary right holders.[10] This is but one example of the many kinds of relationships that can exist in customary systems. It is important to recall that there is no single ‘customary system’ throughout a region or even within a single country as local needs and experiences are privileged. Much of the literature on customary tenure focuses on agrarian and pastoral systems, but there is increasing recognition of the need to understand how these systems operate in forests[11] and urban environments.[12]

2. Non-codified methods of preservation

Customary systems are governed by uncodified procedures which are usually established through negotiations with customary leaders. Their power may be derived from traditional or democratic processes.[13] Unlike fixed rules, procedures can easily be changed to reflect changes in land use needs, community demographics or new technologies.[14] The absence of written records means that the longer that an IDP community is displaced; the more likely it is for information on individual demarcations of land and the nature of customary rules to be lost. This can prolong displacement as land disputes languish and efforts are undertaken to restore or redevelop adjudicative mechanisms.[15]

3. Custom and community

Another strong distinguishing characteristic of these systems is their focus on community ownership, usage and access to land. As a result, tenure is often limited to members of the particular group. As the term ‘customary’ suggests, many of these systems are guided by the historically rooted, legal, political and cultural institutions that shape a given society.[16] Yet such historical roots should not necessarily be considered the most important characteristic of these systems. Recently relocated or newly formed communities can quickly develop non-codified systems of land tenure that also use in-group administration.[17]

Customary Land Tenure and Displacement

Turning now to the connections between customary land tenure and displacement, I will highlight four tenure issues that impact IDPs: 1) the consecutive use of statutory and customary land tenure systems; 2) the exclusion of women; 3) customary land tenure in peace processes; and, 4) the fluid nature of customary tenure.

1. Plural Systems – the consecutive use of statutory and customary land tenure systems

Land tenure systems may overlap with one another leading to the use of plural systems. It is common to find more than one customary system in use in a country or region at a given time or circumstances where statutory land tenure is legally in place but customary systems are socially recognized.[18]

Plural systems tend to produce “forum shopping” - the practice of approaching more than one system to resolve a land dispute.[19] For example, an IDP who receives a negative ruling from a customary leader could seek a more favorable decision from a statutory body. Some analysts[20] see forum shopping as a means of enabling non-violent dispute resolution. Through the provision of a variety of adjudicative options, claimants are not subject to unyielding legal structures that may be under developed or biased. Viewed in this way, forum shopping becomes a critical opportunity for governments, humanitarian and development actors to positively shape land policy. These actors could also help ensure that the needs of IDPs and other conflict affected groups are adequately addressed.[21]

Yet, without definitive and accessible methods of dispute resolution IDPs may have difficulty securing a sustainable solution. Forum shopping produces uncertainty as customary rules and arbitration results can be easily contested and revoked. Links between authority figures remain unclear and decisions may never be definitive as rulings can easily be challenged by another body.[22] Moreover, the practice could create a two-tiered justice system where only wealthy elites with the relevant legal knowledge can access the statutory system.

The existence of multiple land tenure systems will also complicate resettlement strategies. Customary and statutory administrators may fail to share information leading to flawed policy decisions. This occurred in Burundi in 2002 during a government sponsored land survey which identified over 140 000 hectares of land as available for returnee resettlement projects. Many observers believed that these lands were previously redistributed under other government schemes or currently being used under customary systems.[23]

2. The Exclusion of Women

There are many reasons why the particular situation of IDP women must be considered where customary land tenure is used. Even when fully functioning, customary systems often fail to recognize women’s inheritance rights and cultural traditions may limit women’s ability to use the land. For example, though customary systems are widespread in Southern Sudan, few allow women to hold exclusive rights to land, creating difficulties for IDP women attempting to obtain land following the death or absence of their male relatives.[24]

Customary systems are often touted for ensuring a social security network for those members of the community who are unable to meet their basic needs. However, the upheaval brought about by displacement may seriously undermine such networks.[25] Under pressure from their constituency and faced with a scarcity of land, traditional leaders may overlook women’s land rights. Inadequate redistribution of land will ultimately reduce women’s economic and social power - further entrenching their relative disadvantage.

3. Customary land tenure in peace processes

Citing concerns over the scale and complexity of the issues, humanitarians and peace-brokers have traditionally been reluctant to incorporate land issues into peace processes.[26] However, this is changing as practitioners are increasingly recognizing its benefits.[27] Early commitments to redress inequitable land distribution policies and the loss or destruction of land and property could: ) alleviate hostilities,[28] ) encourage post-conflict economic growth[29] and ) facilitate durable solutions for IDPs.

Analysts[30] have explained Kenya’s seemingly sudden descent into violence and displacement following disputed elections in December 2007 by underscoring the contentious place land has held in the country’s history. A peace deal brokered between the rival political parties included the commitment to address long-standing grievances over land, wealth and power with a new constitution. Some caution that without adequately addressing these structural causes, fresh waves of violence and displacement are likely. [31]

The Comprehensive Peace Agreement (CPA) between the government of Sudan and the SPLA/M also addressed land issues. The document formally recognized customary tenure and mandated that a process be initiated to embed it into national law. It also authorized the creation of an independent and representative National Land Commission tasked with arbitrating disputes and making recommendations to government on how to recognize customary land rights.[32]

Though heralded as a significant step towards mainstreaming the inclusion of land issues in peace agreements in Africa, several questions surround the CPA’s implementation. For one, how will customary law be incorporated into the formal legal system? Once completed, will this task irrevocably change the nature of the customary system? Also, how will customary law be respected in urban settings – particularly those in booming post-conflict cities like Juba? And what about those customary rules and institutions that run contrary to women’s human rights? Practitioners must grapple with these difficult questions if the agreement is to have real effect.[33]

4. The fluid nature of customary tenure

I have described how the procedures that govern customary tenure change with local conditions and how these systems are based in community ties. For these reasons it is worth exploring the extent to which customary systems can facilitate IDPs’ access to temporary homes and livelihoods during exile. When land is plentiful, it is common for customary land-holders to provide short-term or long-term land rights to out-group members through leases or sharecropping.[34] IDPs may benefit from such exchanges. In Mozambique, for example, women IDPs created fictive kinship ties with members of their host community. Out of these new relationships came a mutually beneficial exchange where the displaced gained temporary access to land and their hosts benefited from the safety which resulted from the increase in population.[35]

Similarly, in Angola, IDPs seeking to resettle in sparsely populated rural areas can usually acquire land through village-based processes.[36]

Yet practitioners should not assume that implementing or revitalizing customary or community based tenure arrangements will result in fewer problems during returns. In more populous rural areas of Angola, IDPs often use family connections to acquire land which means that those who have lost their kinship ties are less likely to gain access. Rwanda faced an already high population density during returns of refugees in the 1990s. In response, some local officials encouraged ‘land sharing’ between Tutsi returnees and Hutu secondary occupants. These often ad-hoc initiatives have been criticized on many fronts, particularly for the strong pressure placed on returnees to participate, the failure to provide compensation to those involved,[37] and the failure to provide participants with adequate tenure security.[38]

Moreover, respect for customary tenure systems during times of conflict or emergency may be revoked by state actors once the situation has become more stable. During the civil war, the Angolan government lacked the capacity to oversee urban development and land titling. IDPs and other migrants used informal processes based on customary systems to administer and exchange land in urban areas.[39] Though respected during the conflict, the government forcibly evicted thousands of people living in informal urban settlements afterwards. Human Rights Watch[40] and Amnesty International[41] have criticized this process for its failure to consult with compensate evictees.

Conclusion

In conclusion, it is important to understand land tenure systems, and particularly customary systems, when developing durable solutions for Africa’s IDPs.



[1] Walter Kälin, “Promotion and Protection of and Assistance to Internally Displaced Persons” GA 2006 A/61/150, 25

[2] Daniel Fitzpatrick, “Addressing Land Issues After Natural Disasters: Case-Study (Aceh, Indonesia),” Paper Presented at the Conference on Challenges for Land Policy and Administration, World Bank, February 15, 2008,

[3] Daniel Fitzpatrick, “Land Policy in Post-Conflict Circumstances: Some Lessons from East Timor,” 2002, Working Paper 58, New Issues in Refugee Research, UNHCR, Geneva, 8

[4] Jon D. Unruh, “Land and Property Rights in the Peace Process,” Beyond Intractability, (Eds) Guy Burgess and Heidi Burgess, Conflict Research Consortium, University of Colorado Boulder, 2004

[5] Klaus Deininger, “Land Policies for Growth and Poverty Reduction: Key Issues and Challenges Ahead,” Inter-regional Special Forum on the Building of Land Information Policies in the Americas, 2004, 4

[6] IDMC, “Africa Regional Overview,” 2006

[7] John W. Bruce, “African tenure models at the turn of the century: individual property models and common property models,” Paper prepared for a Conference on Land Tenure Models for Twenty-first-Century Africa,” September 8-10, the Hague, the Netherlands, 459

[8] Jean-Philippe Platteau, “The Gradual Erosion of the Social Security Function of Customary Land Tenure Arrangements of Lineage-Based Societies” United Nations University/World Institute for Development Economics Research, Discussion Paper 2002/26, 3.

[9] E.g., Stephen Leisz, “Madagascar Country Profile,” Ed. John Bruce Profiles of Land Tenure, Africa: 1996, Research Paper no. 130, 233

[10] Ibid

[11] E.g., ‘So Who Owns the Forest?’ An Investigation into Forest Ownership and Customary Land Rights in Liberia, Sustainable Development Institute/FERN, Liz Alden Wily, 2007

[12] See: Geoffrey Payne, “Urban Land Tenure Policy Options: Titles or Rights?” Habitat International, 25 (3), 2001

[13] Jean-Philippe Platteau, “The Gradual Erosion of the Social Security Function of Customary Land Tenure Arrangements of Lineage-Based Societies” United Nations University/World Institute for Development Economics Research, Discussion Paper 2002/26, 2

[14] Philippe Lavigne Delville, “Harmonising Formal Law and Customary Land Rights in French-Speaking West Africa,” in C. Toulmin and J. Quan eds. Evolving Land Rights in Africa, International Institute for Environment and Development, 98

[15] Walter Kälin, “Promotion and Protection of and Assistance to Internally Displaced Persons” GA 2006 A/61/150, 14

[16] Gregory W. Myers, “Competitive Rights, Competitive Claims: Land Access in Post-War Mozambique”, Vol. 20, No. 4, 1994, 606

[17] Daniel Fitzpatrick, “‘Best Practice’ Options for the Legal Recognition of Customary Tenure,” Development and Change, 2005, 454

[18] Klaus Deininger, “Land Policies for Growth and Poverty Reduction: Key Issues and Challenges Ahead,” Inter-regional Special Forum on the Building of Land Information Policies in the Americas, 2004, 4

[19] Jon D. Unruh, “Humanitarian Approaches to Conflict and Post-Conflict Legal Pluralism in Land Tenure,” Paper Prepared for HPG-ODU Conference: Land, Conflict and Humanitarian Action, 2008, 4-5

[20] E.g., Jon D. Unruh, “Humanitarian Approaches to Conflict and Post-Conflict Legal Pluralism in Land Tenure,” Paper Prepared for HPG-ODU Conference: Land, Conflict and Humanitarian Action, 2008, 4-5

[21] Ibid, 6

[22] Philippe Lavigne Delville, “Harmonising Formal Law and Customary Land Rights in French-Speaking West Africa,” in C. Toulmin and J. Quan eds. Evolving Land Rights in Africa, International Institute for Environment and Development, pp.97-121, 99

[23] Kamuni, Prisca Mbura, Oketch, Johnstine Summit and Chris Huggins, “Land Access

and the Return and Resettlement of IDPs and Refugees in Burundi” in (Eds) Chris Huggins and Jenny Clover, From the Ground Up: Land Rights, Conflict and Peace in Sub-Saharan Africa, the African Centre for Technology Studies and the African Security Analysis Programme of the Institute for Security Studies, 2005, 224

[24] IRC, International Rescue Committee (IRC), Freedom from Fear: Promoting Human Security for The Return and Reintegration of Displaced Persons in Sudan, A Protection Assessment, May 2004,

[25] Jean-Philippe Platteau, “The Gradual Erosion of the Social Security Function of Customary Land Tenure Arrangements of Lineage-Based Societies” United Nations University/World Institute for Development Economics Research, Discussion Paper 2002/26, 1

[26] Liz Alden Wily, “‘It’s more than about going home…’ Land in Emergency to Development Transitions in Conflict States: Who Should do What?” Paper Prepared for HPG-ODI Conference: Uncharted Territory: Land, Conflict and Humanitarian Action,” 2008, 10

[27] Brookings-Bern Project on Internal Displacement, “Addressing Internal Displacement in Peace Processes, Peace Agreements and Peace-building,” 2007

[28] Daniel Fitzpatrick, “Land Policy in Post-Conflict Circumstances: Some Lessons from East Timor,” 2002, Working Paper 58, New Issues in Refugee Research, UNHCR, Geneva, 3

[29] Jon D. Unruh, “Land and Property Rights in the Peace Process,” Beyond Intractability, (Eds)Guy Burgess and Heidi Burgess, Conflict Research Consortium, University of Colorado Boulder, 2004

[30] See: Humanitarian Policy Group, “Crisis in Kenya: Land, Displacement and the Search for ‘Durable Solutions,’” HPG Policy Brief 31, 2008

[31] Ibid, 4

[32] Agreement on Wealth Sharing During the Pre-Interim and Interim Period, 2004, Section 2.0

[33] Paul V. De Wit, “Land Policy Development in Post Conflict Sudan: Dealing with Delicate Balances in a Fluid Environment,” Paper Presented at the Conference on Challenges for Land Policy and Administration, World Bank, February 15, 2008

[34] Philippe Lavigne Delville, “Harmonising Formal Law and Customary Land Rights in French-Speaking West Africa,” in C. Toulmin and J. Quan eds. Evolving Land Rights in Africa, International Institute for Environment and Development, 98

[35] Heidi Gegenbach, “‘I’ll Bury You in the Border!’: Women’s Land Struggles in Post-War Facazisse (Magude District), Mozambique” Journal of Southern African Studies, Vol. 24, No 1, 1998, 30

[36] Development Workshop, “What to do When the Fight Stops: Challenges for Post-Conflict Reconstruction in Angola,” 2006, 82

[37] John Bruce, “Drawing a Line Under the Crisis: Reconciling Returnee Land Access and Security in Post-Conflict Rwanda,” HPG Working Paper, 2007, 11-12

[38] Ibid, 320

[39] Conor Foley, “Land Rights in Angola: Poverty and Plenty,” HPG Working Paper, November 2007, 8

[40] See: “’They Pushed Down the Houses:’ Forced Eviction and Insecure Land Tenure for Luanda’s Urban Poor,” 2007 Vol. 19 No. 7(A)

[41] See: Angola: Mass forced evictions in Luanda - a call for a human-rights based housing policy, 2003