Leveraging National Laws to Protect Community Land Rights

Rachael Knight Director, Community Land Protection Program Namati

In recent years, governments across Africa, Asia and Latin America have been granting vast land concessions to foreign investors for agro-industrial enterprises and resource extraction. Often, the concessions are made with a view to furthering development and strengthening the national economy. Yet in many cases, these land concessions dispossess rural communities and deprive them of access to natural resources vital to their economic survival. When communities operate under customary law and have no formal legal title to their lands, they often have little power to contest such land grants. In this context, strong legal protection for community lands and natural resources are urgently needed, alongside expedient implementation of clear, simple and easy-to-follow legal processes for the documentation of customary land rights.

Various nations have passed legislation that makes it possible for rural communities to register their lands as a single legal entity and act as decentralized land administration and management bodies. However, due to various political, financial and capacity constraints, these laws are often not implemented successfully.

Research design & methodology

To investigate how to best support implementation of such laws and help communities to successfully complete formal land documentation procedures, the International Development Law Organization (IDLO) undertook a randomized control trial entitled the ‘Community Land Protection Initiative’. The investigation was carried out from 2009 to 2011 in Uganda, Liberia and Mozambique in cooperation with national NGO partners: the Land and Equity Movement in Uganda (LEMU), Centro Terra Viva (CTV) in Mozambique and the Sustainable Development Institute (SDi) in Liberia.

The primary objectives were to: 1. Facilitate the documentation and protection of customarily held community lands through legally established community land titling processes;

2. Understand how to best and most efficiently support communities to successfully protect their lands; and

3. Devise strategies to guard against intra-community injustice and discrimination during community land titling processes, and to protect the land interests of vulnerable groups.

To undertake the objectives, 20 communities in Mozambique worked to complete the community land delimitation process set out in Mozambique’s Leide Terras (1997), and 18 communities in Uganda worked to form Communal Land Associations and then seek a freehold title or Certificate of Customary Ownership (CCO) for their lands according to the procedures set out in the Land Act (1998). In Liberia, due to the President’s moratorium on public land sale (as set out in the Public Lands Act 1972-1973), the 20 study communities followed a skeletal process set out in an MOU signed between IDLO, SDI and the Land Commission of Liberia.

These communities were randomly assigned to one of four different treatment groups, each of which received a different level of legal services provision. The various treatments were:

• Monthly legal education;

• Monthly legal education and paralegal support;

• Monthly legal education and the full assistance of lawyers and technical professionals; and

• A control group that received only manuals and copies of relevant legislation.

While the three nations’ legal and administrative procedures differed significantly, the community land documentation processes followed by the study communities included the following six general steps:

1. Creation and election of a coordinating committee;

2. Boundary harmonization with neighbors (to define the limits of the land being documented) and its physical demarcation; (In Liberia and Mozambique, the communities worked to document the perimeter of the entire community (the meta-unit), including within it both privately held family lands as well as all communal lands, water sources and forests. In Uganda however, the project was working to document and protect only communities’ large common grazing lands.)

3. Drafting and adoption of community by-laws/constitutions to govern intracommunity land administration;

4. Drafting and adoption of community land and naturalresources management/zoning plans;

5. Election of a ‘Governing Council’; and

6. Administrative steps, including formal surveying or geo-referencing and completion of application forms, etc.

Project researchers tracked each community’s progress through the community land documentation process. They recorded all obstacles confronted and their resolutions; intra- and intercommunity land conflicts and all internal community debates. To supplement the observational data, a pre- and postservice survey of over 2,225 randomly selected individuals was undertaken.

Unfortunately, due to the time it takes to facilitate community land documentation processes as well as political, administrative and resource related obstacles, none of the study communities have yet to receive a document for their customary lands. Phase Iiof the Initiative will continue to support the study communities until they have all successfully attained documentation. Phase II will be carried out by Namati, in partnership with SDi, LEMU and CTV, under the aegis of the Community Land Protection Program. For further detail, see http://namati.org/ work/community-land-protection/.

Findings and observations

The investigation’s central finding is that community land documentation activities should combine the technical task of mapping and titling community lands with the peace-building work of land conflict resolution and the governance work of strengthening land and natural resource management. The findings indicate that when these efforts are joined, community land documentation processes have the potential to:

• Resolve long-standing land disputes;

• Improve community governance and establish mechanisms to hold local leaders downwardly accountable;

• Encourage transparency and equality in rule enforcement;

• Stimulate communities to sustainably manage their naturalresources;

• Align community norms and practices with national law; and

• Strengthen the rights of women and other vulnerable groups.

While the data and observations from Liberia and Uganda indicate significant changes in the study communities resulting from community land documentation efforts, in Mozambique very little change was noted. The primary difference between the processes followed in Liberia and Uganda and that in Mozambique was the inclusion of an extended, iterative, and fully participatory process of cataloguing, discussing and adopting a set of community rules/bylaws and a plan for natural resources management. 36 | Coordinates November 2012 To achieve and sustain such impacts, the process must be outlined in a clear land policy and legal frame work and supported by implementation efforts backed by strong political will and the allocation of sufficient resources.

Conflict resolution and prevention

The boundary harmonization process comprised the following activities: community mapping; boundary negotiation and conflict resolution with neighbors; and boundary demarcation (tree planting, GPS mapping, and MOUsigning ceremonies). Taken together, the communities’ boundary harmonization experiences yield three important lessons:

1. Communities’ desire to obtain documentation for their lands created a strong impetus for them to peacefully resolve boundary disputes. They adopted a wide range of conflict-resolution strategies.

2. Resolving these conflicts both appeared to have an overall positive impact on land tenure security.

3. The boundary demarcation exercises underline that community land documentation is a conflict-resolution exercise, and should be treated as such. Facilitating agencies should prepare for land conflict resolution to be a centralcomponent of the process and should craft curricula and trainings designed to support open, non-violent communication, a range of creative compromise strategies and mediation/dispute resolution tactics.

Intra-community governance

The field teams established rigorous fourpart processes for the by-laws/constitutiondrafting process that communities were asked to adhere to. These were:

1. A “shouting out” of all existing laws in an uncensored, communitywide brainstorming session;

2. Analysis of these rules in light of national legal frameworks and evolving community needs;

3. The writing of second and third drafts of these rules; and

4. Formal adoption by full community consensus or super-majority vote.

Community members of all study communities reported that they had never before publicly debated and evaluated community rules, and that the process gave them the opportunity to discuss community rules, norms and practices for the first time. The field teams observed that throughout the exercise, community members had the opportunity to both stand up and argue against rules they felt to be arbitrary and discriminatory as well as to advocate for the inclusion of rules that would protect or promote their interests and use of community land and natural resources. The process appears to have made four significant shifts in various facets of local governance in the Liberian and Ugandan study communities. The findings indicate that the process:

• Effected a transfer of decision-making authority from localand state leaders to the community members themselves;

• Created the opportunity for community members to institute new mechanisms to hold local leaders downwardly accountable;

• Allowed communities to establish consistent norms and institute clear, publicly known penalties for infractions.

• Helped to align local custom with national law.

Unfortunately, because the Mozambican communities did not progress past a first draft of their community rules, the Mozambican data does not show similarly positively impacts on intra-community governance. Such findings add support to the conclusion that a community land documentation process that does not include mechanisms to improve local governance and land administration may at best be described as a lost opportunity to effect powerful intra-community change, and at worst may make land dealings more unjust. The aim of a community land claim formalization process should not only be to obtain documentation, but also to stimulate a community-wide, democratic and fully participatory review of how the community will manage community lands and natural resources going forward.

Conservation and sustainable naturalresources management

The Ugandan and Liberian community land documentation processes include the drafting and adoption of community land and natural resources management plans. The field teams noted that as a result of the process of discussing and amending their rules for land and natural resources management, two main shifts in community members’ consciousness of natural resources management occurred:

1. Community members reported a growing sense of conservation, associated with a concurrent revivalof “old” rules designed to protect community resources; and

2. Communities created rules that more closely control and monitor outsiders’ use of community lands and natural resources.

These shifts were reflected in the content of communities’ land and natural resources management plans. which included rules to promote and enforce: conservation of key resources like firewood, thatch and other building materials; forest conservation; water sanitation/maintenance of clean drinking water sites; sustainable hunting and fishing; and other protections.

Interestingly, evident in the land and natural resources management plans is communities’ receptiveness to outside investment, but within a framework that ensures:

1. The community itself is involved in discussing and negotiating all aspects of the investment project;

2. Restrictions ensure community health, as well as environmental and cultural protections;

3. Benefits/fair compensation accrue to the community; and

4. A contract is drafted to ensure that all community benefits are paid.

Optimallevelof legal and technical support required

Statistical analysis of all study communities’ progress suggests that the level of service had a statistically significant impact on the stage attained in the land documentation process. The analysis found:

• ControlGroup: average completed 19% of the process.

• Legal Education-Only Treatment: average completed 50% of the process.

• Paralegal Support Treatment: average completed 58% of the process.

• Full Legal Services Treatment: average completed 34% of the process.

These outcomes lead to various analyses. First, the finding that the full-service treatment group communities performed more poorly than both the legal education only and paralegal treatment group communities across a range of indicators may indicate that leaving communities with the responsibility of completing most project activities on their own motivated them to take the work more seriously, integrate and internalize the legal education and capacity-building training provided more thoroughly, address intra-community obstacles more proactively, and claim greater “ownership” over the community land documentation process than when the work is done for the community by outside lawyers and technicians.

Second, it appears that the particular strength of the paralegals may be related to their ability to help communities navigate through intra-community tensions or obstacles that a full-services team of outside professionals may either inadequately address, fail to perceive, or accidentally exacerbate.

Third, the relative success of the education-only and control groups neighboring paralegal group communities leads to the conclusion that well trained and rigorously supervised paralegals may not only help their own communities, but also may have wide-ranging impacts throughout the region where they are based.

Fourth, the findings indicate that while motivated communities can perform much of this work on their own, they need targeted legal and technical assistance to successfully complete community land documentation efforts. The field team’s experiences indicate that legal and technical professionals must actively provide the following supports throughout the community land documentation process:

• Introducing the land documentation process and providing periodic legal education and capacity building training;

• Providing mediation and conflict resolution support during any particularly contentious land conflicts that communities are unable to resolve;

• Providing legal and technical assistance during the completion of the community’s second and third drafts of their by-laws/constitutions;

• Implementing a women’s empowerment/participation strategy and working to ensure women’s full involvement; and

• Providing assistance to communities during all administrative components of the land documentation process, including: liaising with government agencies, contracting professional land surveyors, compiling all necessary evidentiary proof of community land claims, and completing all relevant application forms.

Furthermore, the field teams’ experiences indicate that a legal and technical team must closely supervise community paralegals’ efforts, to ensure that their work is of high quality, and to step in when necessary to demonstrate that the community’s efforts are supported by a team of lawyers who have the capacity to take legal action.

The findings also suggest that a paralegal driven process may be less costly – and more scale-able – than the full-service approach, as the model allows a few professionals to supervise multiple community-based paralegals.

Protecting women and other vulnerable groups’ rights

Throughout the community land documentation activities, the field teams adopted specific measures to ensure the participation of women and other vulnerable groups during community land documentation activities. After experimentation with various strategies, the field teams found that to ensure that women’s voices are heard, it is necessary to proactively take action to promote women’s participation in project activities, including:

• Carrying out community-specific gender analysis and crafting strategies to address gender inequities that have the potential to negatively impact community land documentation activities;

• Being respectful of women’s responsibilities by scheduling community land documentation meetings at times and locations convenient for women (after women have completed their house and farm work); and

• Convening special women-only meetings to identify and address issues that affect women’s land rights.

The data and statistical analysis also show that paralegal support is likely the minimum support necessary to ensure that women participate meaningfully in community land documentation activities.

Finally, the field teams observed that the by-laws/constitution drafting process was the central driver of changes to women’s substantive and procedural rights. Crossnationally by treatment group in Uganda and Liberia, statistical analysis of the communities’ bylaws/constitutions found that:

• The control group communities included an average of 0.8 provisions;

• The legal education-only treatment communities included an average of 4.0 provisions;

• The paralegal treatment communities included an average of 5.5 provisions; and

• The full legal services groups included an average of 2.8 provisions.

Procedurally, the process appears to have shifted community members’ perceptions that land is “men’s business;” women reported that they felt that their opinions were taken seriously during the bylaws/ constitution drafting discussions. Furthermore, many communities’ bylaws/ constitutions include new provisions that women and youth must have elected representatives on permanent governing bodies responsible for community land and natural resources management.

Substantively, the process provided an opportunity for women and other vulnerable groups to actively challenge discriminatory customary norms. Their efforts resulted in:

• The strengthening of women‘s rights overall;

• The maintenance of women‘s land and naturalresources rights;

• The rejuvenation of customary norms that had existed but have recently eroded or abused; and

• The alignment of local rules with national laws that protect women’s land rights.

Unfortunately, many of the first draft lists of the Mozambican communities’ rules for land and natural resources management included rules that undermine women’s land rights and directly contravene the Mozambican Constitution. However, due to the lack of intra-community governance procedures in the land delimitation process set out in the Leide Terras, there were no community discussions of how to concretely take action to remedy gender-based injustices. Such findings lead to the conclusion that a process of cataloguing, discussing and amending community rules is central to efforts to protect women’s rights during community land documentation activities.

The by-laws/constitution-drafting process also illustrated that custom does not necessarily undermine or weaken women’s land rights; rather, a well facilitated process of reviewing and amending custom to align with national laws opened a space of dialogue in which it was possible to strengthen women’s existing land rights within customary legal constructs. To this end, customary leaders may be important allies in the enforcement of women’s land rights, as the data indicate that community members consider them to be primarily responsible for the protection of women’s and widows’ land rights.

Obstacles to successful community land documentation efforts

The study communities confronted a wide range of obstacles over the course of the initiative. Analysis of the various administrative and intra-community obstacles faced leads to the following conclusions: first, administrative or bureaucratic inefficiencies linked to lack of necessary staffing and state resources, lack of political will, and other institutional obstacles are the greatest impediments to successful community land documentation.

Second, an unhealthy or dysfunctional community may not be able to successfully complete the complex process of documenting community land claims. The field teams’ observations illustrate that communities that struggle with elite sabotage, intractable boundary disputes, and weak leadership or power struggles between leaders may not be able to successfully progress through community land documentation processes, irrespective of how much support they are offered.

Relatedly, should a dysfunctional community initiate land documentation efforts and not be able to complete them, the process may invigorate tensions and create or exacerbate conflict, leaving the community in a worse situation than before the intervention began. Before beginning an intervention, facilitating NGOs or government agencies should carry out an analysis to determine whether the community can work together productively and is willing to authentically address and resolve intra- and inter community land conflicts. Supplemental conflict resolution training, community building and leadership-enhancement activities may need to be provided before a community can undertake land documentation efforts. In instances where weaker community members initiate land documentation efforts in order to protect their land from being grabbed by local elites, it is important that legal advocates proactively address intra-community conflicts before launching community land documentation activities; civil society and government advocates should address and resolve any underlying intra-community conflicts at issue before beginning the community land documentation efforts.

Community land documentation should be prioritized

Documenting or registering the community land as the “meta-unit” may be the least costly means of protecting rural households’ land claims. The research found that even when providing full legal services support to communities, community land documentation efforts cost only a few thousand dollars per community. Specifically, in Mozambique, the total costs of land delimitation per community were at most US$3,968, with full legals upport. In Liberia, it was $7,700 USD per community. (In Uganda, these figures have not yet been calculated.) Considering that between 100 and 1,000 families live in each of the study communities, community land documentation processes appear to be an economical way to protect large numbers of families’ land claims at once. Although cost estimations vary widely, one multi-country analysis found average costs of first-time individual/household land registration to sometimes be above US$100 per parcel, with average costs between US$20 and US60 per parcel. (Tony Burns, Land Administration Reform: Indicators of Success and Future Challenges, Agriculture and Rural Development Discussion Paper 37 The International Bank for Reconstruction and Development, 2007.) As undertaken in this investigation, for a hypothetical community of 500 families and large common areas, registering the tenurial shell would cost less than half of efforts to register individual or family lands, and would be far more time efficient.

***

It is important to note that the conclusions of the Community Land Titling Initiative’s two-year investigation are preliminary. Additional investigation is necessary to determine the long-term social and economic impacts of documenting community land rights. Moreover, it will be critical to provide on-going support and monitoring to understand how to best support community efforts to implement their newly-adopted by-laws/constitutions and land and natural resources management plans, and to discern what assistance is necessary to ensure that even documented community lands claims are protected over the long-term.
However, the data illustrate that if well facilitated, community land documentation exercises may result in important impacts that go beyond increased land tenure security; communities’ desire for documentation and protection for their land claims appear to be prompting them to undertake authentic discussions and make real changes.

As described by one Liberian man:

idon’t care what anyone says, this project is the best thing to happen in our history. Imagine: now we know our borders; we know our resources; we know our rules, and they are written down for everyone to see and know; people are attending clan meetings; and our clan feels stronger together. This has never happened before! Now it is easy for us to organize and ask the government or [foreign investors] for things we want or refuse things we don’t want in our community.

Once a community has successfully documented its land claims, the hope is that it may then work hand-in-hand with government agencies and civilsociety organizations to leverage its lands for locally-driven development, prosperity and human flourishing.