LAND GOVERNANCE ASSESSMENT FRAMEWORK IN THE GAMBIA THEMATIC AREA 1: LEGAL AND INSTITUTIONAL FRAMEWORK

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1 LAND GOVERNANCE ASSESSMENT FRAMEWORK IN THE GAMBIA THEMATIC AREA 1: LEGAL AND INSTITUTIONAL FRAMEWORK

2 Theme 1: Legal and Institutional Framework Indicators LGI-1: Recognition of rights LGI-2: Enforcement of rights LGI-3: Mechanism for recognition of rights LGI-4: Restriction on rights LGI-5: Clarity of institutional mandates LGI-6: Equity and nondiscrimination Dimensions Rural tenure rights Urban tenure rights Rural group rights Urban group rights Opportunities for individualism Communal land records Individual property registration in rural areas Individual property registration in urban areas Women s rights formalized Condominium common property Compensation with use change Non-documentary evidence Recognition of possession Formal registration fees affordable Registration without informal fees Urban formalization feasible Possession recognized Institutional roles separated Overlap (horizontal) Overlap (vertical) Information sharing Restriction in urban land Restrictions in rural land Clear land policy Policy includes equity goals Policy based on cost/benefit Policy implementation monitored

3 LG1-1 Recognition of a continuum of rights This indicator assesses the extent to which the existing range of rights is recognized by the law.

4 LGI 1 (i) - Rural land tenure rights are legally recognized This dimension assess the extent of the legal recognition of the rights held by households in rural areas. Assessment A Existing legal framework recognizes rights held by more than 90% of the rural population, either through customary or statutory tenure regimes. B Existing legal framework recognizes rights held by 70% - 90% of the rural population, either through customary or statutory tenure regimes. C Existing legal framework recognizes rights held by 50% -70% of the rural population, either through customary or statutory tenure regimes. D Existing legal framework recognizes rights held by less than 50% of the rural population, either through customary or statutory tenure regimes.

5 Findings Rural areas exclusively in the Regions Land (Regions) Act recognizes the land rights of all communities.s4 & 5 vests all land in the District Authorities for the use and common benefit, direct or indirect of the communities under customary tenure. Broad recognition of rights raises some fundamental governance concerns: Land rights of communities affected by State Lands Act not reconciled with rights not affected. Designation not understood. Little discussion or sensitization. Proprietary and contractual rights that arise not sufficiently spelt out in the Act. Conflict of perception on the effect of section 7 on pre-existing rights. Is it a conversion to freehold State land. Will the land revert at the end of 99 year lease. Policies underpinning deemed lease by State Lands Act as a proprietary estate abandoned. Land Regions Act remains a colonial Act with little substantive change since Some provisions no longer relevant to current circumstances. No title is created except evidence of ownership usually rates receipt or CoO.

6 Findings (cont d.) Customary law too informal. Not written. Heavily reliant on traditional institutions/knowledge Traditional institutions adversely affected by changes in local government system and support structures eroded. Customary law principles suffer with the death of depositories of traditional memories. Traditional landmarks demarcating boundaries i.e. between communities/families obliterated with the disappearance of forest cover and other climatic change resulting in frequent boundary disputes. Leases have been created without consent of traditional owners. Concurrence or understanding of designation of state lands or implications Commission of Inquiry into Land Allocation (CILA) revealed significant abuse of authority by public officers because of such designations. Independence of district tribunals presided over by (Sefo and mostly Alkalos) sometimes questioned. Combined roles (adjudicatory and executive)in the same person raise constitutional questions on the separation of powers.

7 Recommendations A comprehensive review of the land Acts, implementation and impact should be carried out with a view to developing a coherent land policy and laws that addresses the current challenges and needs of rural and urban populations in accordance with subsisting rights. The review should address the following issues: the need for the codification or restatement of customary law principles, to avoid their discretionary application. The current system of designating state land under the State lands Act which lacks transparency. The fact that lands are not mapped or demarcated and ownership properly identified is the source of most conflicts. All land should be mapped, demarcated/ownership identified and determined so that customary titles can be recorded to avoid conflicts caused by disputes over boundaries (individual, kabilo and village ownership boundaries) The dual role of district Sefolu as head of both District Authority and District Tribunal is a substantial role conflict having regard to the constitutional principles on the separation of powers. The two offices should be separated. District chiefs are best utilized in the alternative non adversarial dispute resolution systems and not formal adjudicatory processes. A separate structure for the District Tribunal under the Judiciary is recommended.

8 LGI 1 (ii) - Urban land tenure rights are legally recognized Assesses the extent of the legal recognition of the rights held by households in urban areas. Assessment A Existing legal framework recognizes rights held by more than 90% of the urban population, either through customary or statutory tenure regimes. (Banjul and Regions) B Existing legal framework recognizes rights held by 70% - 90% of the urban population, either through customary or statutory tenure regimes. C Existing legal framework recognizes rights held by 50% -70% of the urban population, either through customary or statutory tenure regimes. D Existing legal framework recognizes rights held by less than 50% of the urban population, either through customary or statutory tenure regimes. (KMA)

9 Findings Rights of all communities in the Region urban or rural have been recognized by the Lands (Regions) Act as beneficial owners under customary law. Rights of urban populations within designated State land areas are also fully recognized as deemed leaseholders The Score is A for Banjul and other urban areas that fall under the Regions with reservation (no demarcation, and limited awareness of the general public of the tenure implications of existing law, including public officers). Rights of all occupiers of land in KMA who do not hold a freehold or leasehold grant are not similarly treated by the State Lands Act. Rights in KMA are recognized for those who have formal leases from the State. Occupants without leases but have possession are not similarly treated. Act addresses existing leaseholders by extending their term to 99 years but is silent on the majority of occupiers who have no lease and who regard themselves as customary owners. It merely provides in section 11A that the DLS shall process applications for grants of State Land. Estimated as affecting about 30% of urban population using the GBOS population figures in relation to number of leases in KMA.

10 Recommendations The comprehensive review of the land Acts should address: The status of occupiers of land in Kanifing Municipality who do not hold leases. This affects the greater majority of the people in that area.

11 LGI-1 (iii) - Rural group rights are formally recognized Assesses the extent to which regulations concerning group rights in rural areas define how user groups can organize themselves, impose internal rules, interact with the outside, and call on external agencies to enforce rules. Assessment A The tenure of most groups in rural areas is formally recognized and clear regulations exist regarding groups internal organization and legal representation. B The tenure of most groups in rural areas is formally recognized but ways for them to gain legal representation or organize themselves are not regulated. C The tenure of most groups in rural areas is not formally recognized but groups can gain legal representation under other laws (e.g. corporate law). D The tenure of most groups in rural areas is not formally recognized.

12 Findings Group rights over land are not recognized by law but recognition can be acquired. Group in the Gambian context, is an economic and/or social group that works towards a mutually accepted objective with rules and regulations governing group activities. Group forms that are recognized by law are: Companies including not-for-profit companies Companies Act (Cap.95:01) Friendly societies or clubs under the Friendly Societies Act defined as a number of persons formed for the purpose of raising by voluntary subscriptions of the members with or without donation a fund for specified social objects NGOs being not-for-profit companies that are further registered as NGOs with the NGO Affairs Agency. CBOs are community groups recognized as working with different communities in rural areas. Cooperatives registered under the Cooperative societies Act (Cap.50:02).

13 Findings (cont d.) Groups not referred to in land Acts. Rural group rights over land are not formerly recognized. Recognition of group rights over land does not give them legal ownership. Nothing preventing a group from applying for land either under customary law Thousands of women groups (mostly farmers) seeking to turn user rights to recognized title. Agreements with land owners recognized by the Alkalo, Chief and Governor as giving them title.

14 Recommendations The comprehensive review of the land Acts should include a review of group rights. groups who have an economic interest over land should be enabled to acquire recognition without undue difficulty. introduction of simplified procedures for the formal registration of rural groups so that they can be fully recognized and rights acquired by them can be secured through perpetual succession.

15 LGI-1 (iv) - Urban group rights are recognized in informal areas This assesses the extent to which regulations concerning group rights in urban areas define how user groups can organize themselves, impose internal rules, interact with the outside, and call on external agencies to enforce rules. Assessment A Group tenure in informal urban areas is formally recognized and clear regulations exist regarding the internal organization and legal representation of groups. B Group tenure in informal urban areas is formally recognized but ways for them to gain legal representation or organize themselves are not regulated. C Group tenure in informal urban areas is not formally recognized but groups can gain legal representation under other laws. D Group tenure in informal urban areas is not formally recognized.

16 Findings Urban groups are not treated any differently from rural groups. The definition of group adopted for LGI-1(iii) was extended to this dimension. The same analysis and adopted and the same score applied.

17 Recommendations Same as LGI-1(iii) - comprehensive review of the land Acts should include a review of group rights.

18 LGI 1 (v) - When desirable, opportunities for tenure individualization exist and are accessible This assesses whether the law provides adequate mechanisms to accompany the transition of customary or collective tenure towards individualization if so desired by land users. Assessment A When desirable, the law provides opportunities for those holding land under customary, group, or collective tenure to fully or partially individualize land ownership/use. Procedures for doing so are affordable, clearly specified, safeguarded, and followed in practice. B When desirable, the law provides opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use. Procedures to do so are affordable and include basic safeguards against abuse but are not always followed in practice and are often applied in a discretionary manner. C When desirable, the law provides opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use. Procedures are not affordable or clear, leading to widespread discretion or failure to apply even for cases where those affected desire to do so. D Although desirable, the law provides no opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use.

19 Findings Laws provide opportunities for tenure individualization by leasing or obtaining CoO. Main objectives of State Lands Act, to introduce a unitary title system in designated areas. (See long title of the Act which provides that an Act to amend the law relating to administration of land in The Gambia to introduce a unitary title system in designated areas and to make provision for connected matters. Land held under customary tenure may be individualized with the approval of customary owners by: Obtaining an individual title to customary land the procedure is not specified; Converting customary title to an individual leasehold title under the Land Regions Act the enabling provision is in the Act but the leasing procedure is not clearly specified. Obtaining a lease over deemed leasehold title under section 7 of the State Lands Act. - The procedure and cost are outlined in the State Land Regulations.

20 Findings (cont d.) Affordability is a major concern. Takes years to lease property and the procedure to be followed is not clear. An applicant has to move to and fro from the Alkalo, District Authority, Governor s Office and Central Government. The cost involved in the process is also not specified. Monies are paid to the Alkalo, District Authority, Local Physical Planning Office in the Districts etc. There are many informal fees to be paid that are not prescribed anywhere or regulated including sums to be paid to the Alkalo or Chief. The procedure is also cumbersome and lacks transparency. Too many actors involved including unqualified surveyors who are mostly public officers. Surveys Act 1991 provides for the licensing of surveyors but the Act has not been implemented. The Act also provides for the setting up of a Surveyors board -not yet set up.

21 Recommendations Land legislation should be supported by comprehensive subsidiary legislation to ensure that the laws are fully implemented, including: Transparent procedures for fixing and publication of all the fees to be paid, and generally, removing the amount of discretionary authority involved. Regulations should be extended not only to the processes related to the issue of state grants, but the application processes for Regional grants/ registration of unregistered land. Extensive sensitization and consultation of the general public should be undertaken in respect of existing land tenure rights, proposed reforms and the development of a land policy.

22 Recommendations Pending such review: There is need for sensitization across the board including public officers about the purpose and of effects of the State Lands Act. The regulatory mechanisms processes and procedures for the enforcement of the State Lands Act should also be reviewed. All processes should be overhauled and streamlined. Processes should be automated where possible. The Surveys Act should be implemented- only licensed surveyors should be allowed to carry out surveys as per the Act.

23 Theme 1: Legal and Institutional Framework Indicators LGI-1: Recognition of rights LGI-2: Enforcement of rights LGI-3: Mechanism for recognition of rights LGI-4: Restriction on rights LGI-5: Clarity of institutional mandates LGI-6: Equity and nondiscrimination Dimensions Rural tenure rights Urban tenure rights Rural group rights Urban group rights Opportunities for individualism Communal land records Individual property registration in rural areas Individual property registration in urban areas Women s rights formalized Condominium common property Compensation with use change Non-documentary evidence Recognition of possession Formal registration fees affordable Registration without informal fees Urban formalization feasible Possession recognized Institutional roles separated Overlap (horizontal) Overlap (vertical) Information sharing Restriction in urban land Restrictions in rural land Clear land policy Policy includes equity goals Policy based on cost/benefit Policy implementation monitored

24 LGI-2 Enforcement of rights Assesses whether the rights recognized by law are enforced (including secondary rights as well as rights of minorities and women).

25 LGI 2 (i) - Surveying/mapping and registration of rights to communal land Assesses the extent to which Boundaries to communal land have been surveyed / mapped and the communal rights registered. Communal land is land over which a rural group or community has rights or access to. Such land may be held under customary tenure and in some cases, occupants may belong to indigenous communities or their equivalent (e.g. scheduled tribes in India) as defined by law. Assessment A More than 70% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered. B 40-70% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered. C 10-40% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered. D Less than 10% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered.

26 Findings Most communal land is not mapped. Only leaseholds are mapped. Less than 10% of all land in the rural areas (which are generally communally owned) are leased. REGIONS COMPOUNDS REGISTERED(leased) WCR 106,156, 9,074 URR 14, CRR - - LRR NBR 16,883 1,070 Systematic demarcation, survey and registration of rights has never been a practice for communal lands. Registration is purely voluntary. Some communal gardens have been mapped and rights registered mostly as precursor for acquiring a loan or for attracting some form of sponsorship that requires Land Title. Most cases communal lands are not mapped until a transaction takes place.

27 Recommendations All communal land should be mapped and boundaries demarcated. This would lessen exploitation and abuse as well as land disputes. The source of most problems including abuses in the land tenure system is the fact that land in generally is not mapped, demarcated, owners identified and registered. A system to ensure that this is carried out should be put in place as a matter of priority. Part of this system, include process of Land Adjudication whereby all land parcels are identified and the rights therein recorded to evolve into a comprehensive Register of Titles. The benefits of Registration (Security of Tenure and ease of Conveyancing) can only be maximized by the existence of such comprehensive and up to date records. The system of land adjudication should be supervised by a Commission/Special Court instead of the formal court system. Such a court or Commission should not be bound by formal legal rules.

28 LGI 2 (ii) - Registration of individually held properties in rural areas Assesses the extent to which majority of individual properties in rural areas are formally registered. Here registered does not necessarily mean that the final certificate or title has been issued. Registered may mean that the rights are recorded unambiguously in the land administration system and there are generally few disputes over the recorded information. Assessment A More than 90% of individual properties in rural areas are formally registered. B Between 70% and 90% of individual properties in rural areas are formally registered. C Between 50% and 70% of individual properties in rural areas are formally registered. D Less than 50% of individual properties in rural areas are formally registered.

29 Findings Limited individual ownership in rural areas -land is communally or family owned. May be recorded for rates purposes is not a registration. Only the name of the rate payer and the location of the property are recorded not accompanied by a cadastral plan or map. Process for registration of individually held lands in rural areas require some 14 steps. Almost all the processes are primarily concentrated at the Regional Governors Offices and in DLS Banjul. Registration process is usually longer if the land was first purchased before commencement of the process for registration. The review showed that out of a total of approximately 144,464 properties only 10,748 (7.4%) was registered/leased.

30 Findings (cont d.) The low proportion of registered rural lands may be attributable to the following factors: Absence of pressures on land due to low population concentrations high rural-urban migration (especially of the youth). Absence of commercial agriculture means land is readily available and rural communities don t feel the need for land demarcation and registration. Limited market for the buying and selling of land. Stability of the existing customary land tenure system. Time consuming and complex processes for land registration.

31 Recommendations Need for sensitization of land owners on the benefits/rewards of land registration for security of tenure and ease of transactions in landed assets. The mapping and demarcation of all land should be accompanied by the introduction of an appropriate and automated Registration of Titles Act/system to guide and support the process. Policy changes should aim to simplify and shorten registration processes at both the approval and document preparation stage.

32 LGI 2 (iii) - Registration of individually held properties in urban areas Assesses the extent to which majority of individual properties in urban areas are formally registered. Assessment A More than 90% of individual properties in urban areas are formally registered.(banjul) B Between 70% and 90% of individual properties in urban areas are formally registered. C Between 50% and 70% of individual properties in urban areas are formally registered. D Less than 50% of individual properties in urban areas are formally registered. (Rest of Country)

33 Findings One national Land/Deeds Registry (located at the AGC in Banjul) where all land rights and transactions on land are registered, whether urban or rural. Data is unorganized and not sorted by category. Many registers/volumes in a bad state and not legible. Random review of the registers show vast majority of registered land is to individuals. In Banjul where Freehold Titles (absolute in possession) predominates all properties are formally registered in the Banjul Streets Register kept by the AGC Land Registry. The BCC also has a complete record of all land owners in Banjul.

34 Findings (cont d.) Less than 50% (21%) of individual held land in urban areas is registered. (Number is arrived at by comparing the number of leased properties in the 2 most populous urban areas KMA and West Coast Region plus Banjul with the number of rated properties. KMA by end 2012 has 19,240 leases compared to the number of rated properties This indicates that 57% of properties were registered. The number of registered properties in West Coast Region is compared to the number of leases (9074) 8.56% whereas all properties in Banjul are registered The figure of registered properties for other urban areas is not available. However having regard to the total numbers of leasehold properties from all regions, that figure even if available would not affect the score.) A significant number of properties in Banjul are registered to persons long dead. Many of the estates are not administered and the name on the original title may not be changed until there is a transaction on the land.

35 Recommendations The land records ideally should be synchronized with the DLS Cadastre and the land records held at the Governors offices. A Land Resources Information System (LRIS), which is comprehensive and up-to-date in content, and shared by all the institutions concerned with the management of land resources and the rights therein is crucial. To give effect to any reforms of the land registry and cadastre the Institutions responsible (DLS, DPPH, AGC) for allocation and registration of land rights need extensive strengthening in terms of human resources development, technological capability, operational logistics and mobility. The Survey Act 1991 which would have enabled private Licensed Surveyors to take responsibility for the preparation of Lease plans should also be put into operation to reduce the pressure on the DLS. The Act has made provision for the appointment of a Survey Board, which would issue Licenses to duly qualified and certified Surveyors who could then prepare cadastral plans and other ownership documentation according to a defined uniform standard.

36 LGI 2 (iv) - Women s rights are recognized in practice by the formal system (rural/urban) Assesses the extent to which the tenure rights of women are enforced through the registration of land in their names or jointly. Women s rights may be registered individually or jointly, where jointly means that a woman is registered with others in the records. These others may be a husband or other family members or may include members of a wider group. Assessment A More than 45% of land registered to physical persons is registered in the name of women either individually or jointly. B Between 35% and 45% of land registered to physical persons is registered in the name of women either individually or jointly. C Between 15% and 35% of land registered to physical persons is registered in the name of women either individually or jointly. D Less than 15% of land registered to physical persons is registered in the name of women either individually or jointly.

37 Findings Women s rights in land are recognized by the formal system in both urban and rural areas. statistics on number of individual lands owned and registered to women not available. Land Registry are not currently compiled according to gender - a review of the numbers of leases registered in the past 10 years from all local government areas suggest that less than 20% are registered to women. Last 5 year trend suggests shift in favour of public land allocation to women. SSHFC - 56% of all plots allocated to women. DLS indicate 34% of plots in last residential layout allocated to women. Formal system of land allocation appears to be gender neutral. Allocation is said to be purely based on qualifying criteria determined by MOL. Both DLS and SSHFC Broad criteria applied are said to be: nationality, maturity (over 21), availability of the means to develop, (SSHFC) not having previously benefited, and number of dependents. In rural areas it is the Women Kafos (groups) and not individual women who are increasingly seeking to register land for agricultural purposes (market gardens).

38 Findings (cont d.) Gender inequities in land ownership a function of ingrained traditional, religious and cultural practices particularly in the rural areas subject to customary law. Women rights in land are determined by existing land tenure laws, customary practices and inheritance laws. Constitution is not discriminatory per se against women as a gender, it nevertheless recognizes women s inheritance rights as granted under their personal law. Sharia law- females are entitled to half the portion of a male s share of the estate. This affects more than 90% of the population who are Muslim and subject to the Islamic law of inheritance. Customary law or practice discriminates against women. Under customary tenure, land is regarded as communally owned by clans or families. Women have access to the use of land for agricultural purpose generally but usually through their spouses or male relatives. Ownership is a serious challenge.

39 Recommendations The low ownership of land by women is a critical human rights issue that needs to be tackled. The government should set the national mood for country wide debate on women s property rights and create the necessary policy and legislative environment to address the protracted property issues for women. A policy should be adopted for the systematic replacement of informal systems of land ownership with a formal system with particular attention to women s rights issues.

40 LGI 2 (v) - Condominium regime provides for appropriate management of common property An essential element of good governance regarding condominiums is not only that the rights of the dwelling itself are recognized but that there is recognition of, and clear arrangements to manage the common property areas (driveways, parking, gardens, stairwells etc.) that are necessary for the occupants of the condominium to enjoy the full use of the property. Assessment A Common property under condominiums is recognized and there are clear provisions in the law to establish arrangements for the management and maintenance of this common property. B Common property under condominiums is recognized but the law does not have clear provisions to establish arrangements for the management and maintenance of this common property. C Common property under condominiums has some recognition but there are no provisions in the law to establish arrangements for the management and maintenance of this common property. D Common property under condominiums is not recognized.

41 Findings Apartment regimes other than tenancy arrangements are not common. In recent times real estate companies have introduced the concept of apartment ownership. There is no law that recognizes or regulates common property under apartment systems other than general common law principles. Shared spaces in rented apartment complexes are subject to landlord/tenant agreements under general contract law. Arrangements for the management and maintenance of the properties are subject to the contractual arrangements between landlords and tenants and general legal principles.

42 Recommendations The comprehensive legislative reform recommended should address the subject of apartment systems and provide for the regulation of common property in such systems including tenancy systems.

43 LGI 2 (vi) -There is compensation for loss of rights due to land use changes Assessment A Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people have comparable assets and can continue to maintain prior social and economic status. B Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people have comparable assets but cannot continue to maintain prior social and economic status. C Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people do not have comparable assets and cannot continue to maintain prior social and economic status. D Where people lose rights as a result of land use change outside the expropriation process, compensation is not paid.

44 Findings S22(2) of the Physical Planning and Development Control Act provide Minister may direct change of use in the public interest. Compensation may be directed to be paid (S22(3). Land use changes responsibility of the DPPH - DLS for Land Acquisition and Compensation. The only provision in the law is the Land (Acquisition and Compensation) Act, This makes provision for the compulsory acquisition (expropriation) of land by the State for public purposes. The law is not clear on compensation when it comes to land use change as it is in compulsory acquisitions. Compensation for land use change is discretionary. There is no system put in place. No procedures guiding the process. In planned areas changes in land use occur in two categories- redesignation from one use to other. Method to determine compensation for loss of user rights not defined in the legislation.

45 Findings From the period allocations of land was made from 17 layouts created in State land or designated State land areas. Apart from 3 layouts, Kanifing, Katchikally, and Old Jeshwang, the layouts were created from customary owned lands previously agricultural in peri-urban areas. Numerous complaints from land owners that they were not compensated. CILA found procedures for change of land use and requirements for compensation ignored. Second category of land use change occurs where an individual with exclusive possession of land changes use to suit changing circumstances of that land. In this case the issue of compensation does not arise as no other rights are adversely affected instead individuals wishing for such change in land use are required to pay a prescribed fee to the Planning Authority, and to also forfeit a portion of the land to the state if it was leased land. Compensation is not paid for change of land use to forests and wildlife parks, protected areas, and sites of historic and cultural significance. In practice therefore, different types of Land use changes do occur as and when required and compensation may be paid but not consistently. Where compensation is paid it does not enable the land owners have comparable assets to continue to maintain prior social and economic status.

46 Recommendations A comprehensive revision of the compensation system for land use change, structures and laws is required. Law on compensation for land use change should be clear. A uniform compensation process should be prescribed as a standard formula. The method of compensation should be transparent. Not only expropriation issues, but loss of land rights arising from change of land use should be clearly addressed.

47 Theme 1: Legal and Institutional Framework Indicators LGI-1: Recognition of rights LGI-2: Enforcement of rights LGI-3: Mechanism for recognition of rights LGI-4: Restriction on rights LGI-5: Clarity of institutional mandates LGI-6: Equity and nondiscrimination Dimensions Rural tenure rights Urban tenure rights Rural group rights Urban group rights Opportunities for individualism Communal land records Individual property registration in rural areas Individual property registration in urban areas Women s rights formalized Condominium common property Compensation with use change Non-documentary evidence Recognition of possession Formal registration fees affordable Registration without informal fees Urban formalization feasible Possession recognized Institutional roles separated Overlap (horizontal) Overlap (vertical) Information sharing Restriction in urban land Restrictions in rural land Clear land policy Policy includes equity goals Policy based on cost/benefit Policy implementation monitored

48 LGI-3 Mechanisms for recognition of rights Assesses the consistency and affordability of rights recognition mechanisms (formalization) with existing tenure practices.

49 LGI 3 (i) - Use of non-documentary forms of evidence for recognition of property claims Assessment A Non-documentary forms of evidence are used alone to obtain full recognition of claims to property when other forms of evidence are not available. B Non-documentary forms of evidence are used to obtain recognition of a claim to property along with other documents (e.g. tax receipts or informal purchase notes) when other forms of evidence are not available. They have about the same strength as the provided documents. C Non-documentary forms of evidence are used to obtain recognition of a claim to property along with other documents (e.g. tax receipts or informal purchase notes) when other forms of evidence are not available. They have less strength than the provided documents. D Non-documentary forms of evidence are almost never used to obtain recognition of claims to property.

50 Findings Non documentary forms of evidence are acceptable in court based on the Evidence Act, Section 46 of the Evidence Act provides as follows: Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant. The decision of the Supreme Court of the Gambia in the case of Fatou Badjie v. Joseph Bassen [ ] 2GLR page title to land may be proven by traditional evidence when other forms of evidence are unavailable. So non documentary forms of evidence can be used alone to obtain full recognition of claims to property when others forms of evidence are not available. In practice however cogent traditional evidence in proof of claims in the High Court is not always forthcoming and when available is sparse making it difficult for the courts to rely on such evidence. At the administrative level there is no bar to the acceptance of non-documentary forms of evidence if there is no other evidence available.

51 Recommendations It is important that Legal Practitioners are sensitized on the law and procedural requirements and possibilities for establishing title through oral evidence. The consistent application of land law principles is desirable. Training for lawyers and judicial officers on land laws and related principles should be made available through collaboration between the Bar Association and the Judiciary with capacity support.

52 LGI 3 (ii) - Formal recognition of longterm, unchallenged possession Assesses the presence of legal process to recognize long-term, unchallenged occupation of land. Assessment A Legislation exists to formally recognize long-term, unchallenged possession and this applies to both public and private land although different rules may apply. B Legislation exists to formally recognize long-term, unchallenged possession but applies only to one specific type of land (e.g. either public land or private land). C Legislation exists to formally recognize long-term, unchallenged possession but due to the way this legislation is implemented, formal recognition is granted to very few or no applicants for recognition on either public or private land. D Legislation to formally recognize long-term, unchallenged possession does not exist.

53 Findings Legislation does not exist to formerly recognize long term unchallenged possession. All land is either, vested in the District Authorities, communally/individually/privately or State owned.

54 LGI 3 (iii)- First-time registration on demand is not restricted by inability to pay the formal fees Assessment A The costs for first time sporadic registration for a typical urban property does not exceed 0.5% of the property value. B The costs for first time sporadic registration for a typical urban property does not exceed 2% of the property value. C The costs for first time sporadic registration for a typical urban property does not exceed 5% of the property value. D The costs for first time sporadic registration for a typical urban property exceeds 5% of the property value.

55 Findings Formal fees for first time registration are a major concern. Two categories of urban areas can be identified: official allocations within a Government demarcated layout. Allocations by SSHFC fall under this category. Registration is straight forward process and cost much less. No capital gains tax. Deed Plan provided. Plots in old settlements, having been allocated by the sitting Alkalo at the material time. -Leasing involves preparing of ownership documentation (sale or alkalo certificate) planning approvals, field survey and preparation of cadastral plans, ministerial approval before registration. First-time registration on demand of properties in this category may be restricted by inability to pay the formal fees.

56 Findings (cont d.) Challenges: Lack of adequate capacity for survey, demarcation. Cadastral plans covering the country are not comprehensive and up-todate, nor are they computerized. Time requirements for conduct of surveys hence long, coupled with lack required resources/ personnel/ logistics. Approval processes time-consuming as approving authorities are not centrally located, results inlease files being physically transported to various places during the approval processes. Where change of land use is involved, the cost is determined by the type of land use category and location. D5000for change of land use for residential, commercial and industrial land, and forfeiture of 50% of the land area shall be forfeited to the State. Property disputes during the registration process. Where transfer involved, formal fees are made very high by tax rate. 5%- 25% or more for capital gains tax if the property was first purchased before registration. The cost charged for planning clearance, though not high (D200) ought not to be necessary if the land use plans were up to date.

57 Recommendations Procedures for the formalization of property ownership from unplanned holdings (urban or rural) need to be based on clear regulations instead of the rather opaque and unclear current situation. The procedures should be set out clearly and widely disseminated and consistently applied. One of the challenges is that procedures are not always followed for expediency reasons, and informal practices, over time, become crystallized as the norm. This can only be avoided when procedures are explicitly documented and disseminated. The steps involved in the registration processes should be streamlined and shortened. A formal step by step process with a time line is desirable for all registration processes. This should be regulated. Capital gains tax should not be charged on first time registration. This would encourage landowners to register their holding. There should be an initiative in place for the planning of the whole country once and for all, to eliminate the need for clearance/planning fees on first time registrants. This should be followed by the systematic registration of all land titles because the current process for determining land title is cumbersome lengthy and insecure giving rise to exploitation and conflict.

58 LGI 3 (iv) - First-time registration does not entail significant informal fees Assesses as to whether the demand for first time registration is not restricted by demands for unofficial or informal fees. Assessment A There are no informal fees that need to be paid to effect first registration. B There are informal fees that need to be paid to effect first registration, but the level of informal fees is significantly less than the formal fees. C There are informal fees that need to be paid to effect first registration and the level of informal fees is about the same as the formal fees. D There are informal fees that need to be paid to effect first registration and the level of informal fees is significantly higher than the formal fees.

59 Findings In addition to formal fees, applicants are confronted with significant amounts of informal fees associated with registration. In most cases these fees can be higher than the formal fees. Associated informal fees include: Fees to intermediaries i.e. property agents can be up to 10% of transaction value. Property agents are neither registered nor licensed. Fees for preparation of location plans by unlicensed surveyors or planners (discretionary). Fees charged by Chiefs and Alkalos (discretionary) can be up to 10% of transaction value.

60 Findings (cont d.) Transport and other costs to follow up application and the conduct of field surveys for the preparation of cadastral plans. Professional fees to lawyers (if involved). High informal fees are a significant disincentive to persons who would normally like to register their properties. The composition of the fees is itself not clear. Typically, payment to lawyers if involved), unlicensed surveyors or planners (who are mostly hired from DPPH), Alkalos and district chiefs, are discretionary and can be higher than the formal fees. In addition, officers in the DLS/DPPH may have to be tipped to expedite the process. In most cases the level of informal fees paid out can be higher than the level of formal fees.

61 Recommendations All fees should be formalized at all levels including fees paid to local authorities including the Alkalos and chiefs and the structure widely publicized. Alkalos and Chief s should not have the authority to arbitrarily charge fees for executing their duties as is the case in the current system. The fee structures once determined should be published and widely disseminated. Poor human resource capacity and low salaries contributes to the pervasive corruption in the system. This should be addressed. Staff should be trained and better remunerated to reduce the temptation on their part for corruption and malpractice. The culture of expectation of tips by paid government workers to execute their statutory functions must be eradicated.

62 LGI-3 (v) - Formalization of urban residential housing is feasible and affordable Assessment A The requirements for formalizing housing in urban areas are clear, straight-forward, affordable and implemented consistently in a transparent manner. B The requirements for formalizing housing in urban areas are clear, straight-forward, and affordable but are not implemented consistently in a transparent manner. C The requirements for formalizing housing in urban areas are not clear, straight-forward, or affordable but many applicants from informal areas are managing to satisfy the requirements. D The requirements for formalizing housing in urban areas are such that formalization is deemed very difficult.

63 Findings Formalization of urban housing involves securing land titles or registering housing units. Land ownership in unplanned areas based customary law while informal areas are likely to have been illegally occupied in the first instance. Channels for formalizing land and housing units are: Land title: 3 forms: the conveyance for freehold property, the lease for registered property (outside Banjul) and CoO. CoO most common process starts at local DPPH offices based on verification by alkalo and sefolo; Leases are issued by MOL or MOL with DA (Region). Leases offer greater security of tenure than CoO but process is more centralized, procedures lengthy, cumbersome and costly. Leases for formal or planned areas easily obtained based on letters of allocation from DLS, SSHFC and others. Plots in unplanned areas are more difficult to process.

64 Findings (cont d.) Housing: Residential units in planned/formal and unplanned/informal areas can be formalized by securing a DP from the DPPH prior to commencement of the building process. DPs can also be issued after completion of construction or any time thereafter. Documentation include: proof of ownership, technical drawings and designs that meet a variety of criteria based on public health considerations (ventilation, drainage, and so forth). Aside from DPs, other statutory requirements such as certificates of completion, occupancy, etc., are not enforced and the public is largely unaware of these. Requirements for formalizing titles generally known and reasonable information. Procedures for acquiring a CoO accessible as persons and institutions involved locally based (alkalo, seyfo, local physical planning office). Information on acquiring leases are not as widely disseminated and typically assistance is required from DLS/DPPH personnel for which informal payment is required, in addition to statutory payments such as land rent, stamp duty, etc., if document is to be secured within a reasonable time frame. Plots from unplanned areas can generally be formalized except if conflicting claims.

65 Findings (cont d.) Few settlements Kotu Quarry, Old Jeshwang Airport corridor which are labeled illegal so that formalization is not possible. Justifications for Kotu Quarry include poor storm-water drainage and high propensity to flooding during the rains while the Old Jeshwang area has long been designated for future development of a highway to the airport. Periodically also, leases to identified areas may be under embargo while government deliberates on possible future development options. An example of this is the BatoKunku settlement in the Kombo North. There is little institutional capacity for urban planning and even lesser capacity for urban intervention. The most recent Land-Use Plans are about 30 years old. DPPH, is barely able to maintain records on developments currently on-the-ground let alone plan and direct such development. Absence of government motive for effective urban development planning combines with minimum capacity for actual planning interventions underlie shortcomings in the urban land-use planning domain.

66 Recommendations The procedures for the formalization of property ownership from unplanned holdings (urban or rural) need to be based on clear regulations instead of the rather opaque and unclear current situation. The procedures should be set out clearly and widely disseminated and consistently applied. One of the challenges is that procedures are not always followed for expediency reasons, and informal practices, over time, become crystallized as the norm. This can only be avoided when procedures are explicitly documented and disseminated. Complete institutional overhaul of the sector required: Myriad activities required for proper urban planning and intervention should be identified through a comprehensive and wide-ranging study which should also define a matrix of the institutional configuration required for sustainable implementation of activities. Equally important, an effective monitoring and evaluation (M&E) mechanism that, inter alia, sets out clear targets for the various actors and participants and measures organizational effectiveness at achieving specified sectoral objectives should be designed. Areas for intervention should include: Study and research-implement a comprehensive urban planning and land-use study.