Design and Implementation of a Legal Aid Component for Land Projects: Lessons from Andhra Pradesh

Transcription

1 Design and Implementation of a Legal Aid Component for Land Projects: Lessons from Andhra Pradesh A paper prepared for the Conference on New Challenges for Land Policy and Administration February 14-15, 2008 The World Bank, Washington DC Robin Nielsen and Tim Hanstad February 2008

2 Introduction 1 Legal aid targeting land rights can extend the positive impacts of community driven development projects and create a foundation for improving the livelihoods of poor rural households. Legal aid can also provide a better understanding of more systematic land administration problems affecting those poor households. A well designed legal aid component identifies situations where members of a rural community are unable to realize the promise and benefits of secure land rights. Legal aid can diagnose the causes of the gaps between formal law and rural realities, whether they are the result of poorly conceived policies, weaknesses in the laws, lack of information about rights, insufficient administrative systems or capacity, or lapses in implementation. Using a variety of methods, legal aid can strengthen weaknesses and close gaps by building awareness of legal rights among the poor and giving legal (and ultimately social) recognition to their previously unrealized land rights. This note reviews of the importance of land access and tenure security to economic growth and the role legal aid can play in strengthening the land rights of poor households. The note focuses on the legal aid activities within a World Bank-funded rural poverty alleviation project in the southern Indian state of Andhra Pradesh, the Andhra Pradesh Rural Poverty Reduction Project ( APRPRP or the Project ). The Project s early experience highlights the manner in which land-related legal aid activities can support broad CDD project objectives while providing the project s target population with a foundation for economic and social advancement. Relevance of land rights to economic growth and poverty reduction Land rights play a critical role in defining the economic opportunities, wellbeing, and future of the world s poorest people. The majority of rural households depend on agriculture for their livelihoods. Those who do not have access to land or whose land rights are insecure are unable to make full (or sometimes any) use of this multi-faceted asset to meet the needs of their families and protect against shocks. Inevitably, they are among the poorest and most marginalized sections of the rural population. The connection between poverty and lack of land rights is starkest in rural India, where 60 million households (330 million people) own less than a tenth of an acre of land, 2 and 1 This paper describes legal aid activities that Andhra Pradesh s poverty alleviation project, Indira Kranthi Patham ( IKP ) has developed and implemented, with the support of Mr. K.V. Raju, Principal Secretary, Department of Panchayat Raj and Rural Development. The achievements of the project described in this paper are attributable to the IKP staff, Revenue Department, and community members. The paper was prepared with reference to State Project Manager (Land), B. Vizia Indira s November 26, 2007 report, Indira Kranthi Patham: Land Access for the Poor (SERP publication), Renee Giovarelli, Darryl Vhugen, and Karuna Vakatui, Ensuring Secure Land Rights for the Rural Poor in Andhra Pradesh: A Case Study (draft report for FAO), and Robert Mitchell and Tim Hanstad, Innovative Approaches to Reducing Rural Landlessness in Andhra Pradesh: A Report on the Experience of the IKP Land Activities (on file with RDI).

3 landlessness is a better predictor of poverty than either illiteracy or caste. 3 The majority of these households struggle to survive and, without land, have limited livelihood opportunities. Obtaining secure land rights for housing and/or cultivation for these rural families can expand and improve their livelihood opportunities. Role of land-related legal aid The potential livelihood benefits of secure rights to land are often not realized by poor households in India due to lack of knowledge, incomplete implementation of distribution programs, or land disputes. Most Indian states have at least some legal and policy provisions concerning land that are favorable for poor households, although such households are often unaware of these provisions and their rights. Land distribution programs have often failed to produce promised results because land rights are not recorded or third parties contest the rights of beneficiaries. Legal aid, which is broadly defined as low or no-cost legal assistance to the disadvantaged, 4 is a mechanism that can identify the reasons why intended beneficiaries and other members of a targeted population are not realizing the benefits of land rights and address problems identified by facilitating case resolution with surveying support, case investigation, and legal analysis. Project context for legal aid component In Andhra Pradesh, legal aid targeting land rights is an activity within the state s poverty reduction project, Indira Kranthi Patham ( IKP ) 5, which staffs and manages APRPRP. IKP is supervised by the state Department of Panchayat Raj and Rural Development and operated under the quasi-governmental Society for Eradication of Rural Poverty ( SERP ) million households own no land and another five million households own less than 20 square meters (215 square feet) of land. Government of India, National Sample Survey Organization, Household Ownership Holdings in India, 2003, at 10 and Table 6R. 3 The World Bank, India: Achievements and Challenges in Reducing Poverty, at See generally Committee on Legal Services for the Poor in Developing Countries, Legal Aid and World Poverty: A Survey of Asia, Africa, and Latin America (New York: Praeger); Mark Kessler, Legal Services for the Poor: A Comparative and Contemporary Analysis (New York: Greenwood Press); and John W. Bruce et al., Legal Empowerment of the Poor: From Concepts to Assessment, a report prepared for USAID UN High Commission Legal Empowerment of the Poor (Burlington: ARD, Inc.). Overviews of legal aid systems include papers presented at the Eleventh Annual Philip D. Reed Memorial Issue Partnerships Across Borders: A Global Forum on Access to Justice, April 6-8, 2000, 24 Fordham Int l L.J. 856 (2000); Charles J. Ogletree, Jr., Access to Justice: The Social Responsibility of Lawyers, 7 Wash. U. Journal of Law and Policy 47, and Mauro Cappelletti, James Gordley, and Earl Johnson, Jr., Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies, in Studies in Comparative Law, ed. M. Cappelletti (New York: Oceana Publications, Inc.). 5 IKP was formerly known as Velugu. 6 Both IKP and SERP have their origins in the UNDP-supported South Asian Poverty Alleviation Programme ( SAPAP ). SAPAP was implemented in 100 districts in India in Three of the SAPAP districts were in Andhra Pradesh. Legal Aid Component for Land Projects (RDI)-3

4 The Project uses institution building and the creation and enhancement of livelihood opportunities to empower rural poor people. In managing the Project, IKP operates through women s community-based organizations ( CBOs ). At the village level, women are organized into self-help groups of roughly women, which begin with capacity building and savings activities before graduating to income generation schemes. The SHG leaders form village organizations ( VOs ) representing the interests of all SHGs in a village or SHGs from more than one smaller village. VOs are further federated at the mandal (sub-district) level to form Mandal Samakhyas ( MSs ), and at the district level as Zilla Samakhyas ( ZSs ). Chart 1: APRPRP Land-related legal aid activities structure Community Based Organizations Implementation Mechanisms for Land-Related Legal Aid Activities Zilla Samakhya (1 per district) Land Rights and Legal Assistance Center Mandal Samakhya (15-20 per district) Land Manager Community Surveyors Legal Coordinator Village Organization (1 per village or serving 2-3 smaller villages) Paralegals (1 per mandal) Law schools/ law students Lawyer Panels Self-Help Groups (1-10 or more per village) Targeting the poorest of the poor, the Project initially attempted to improve their livelihoods through institution-building and financing for income-generating activities. However, for many within this population, access and rights to land were primary, unaddressed issues; for the landless, financing income generating activities had proven largely ineffective because they lacked the land base required for most such activities. 7 7 Like most Indian states, Andhra Pradesh had enacted post-independence legislative reforms and the state reported allocating 5.4 million acres of land to almost three million rural poor households. However, a significant percentage of intended beneficiaries did not receive the intended benefits from the allocation. In Legal Aid Component for Land Projects (RDI)-4

5 The Project staff added a land component that included two sets of activities: (1) land purchase by women members of SHGs ( Land Purchase Activity ); and (2) activities designed to increase land access and tenure security for the poor such as identifying government land available for assignment to poor households and facilitating resolution of pending land cases ( Legal Aid Activities 8 ). 9 Origin of IKP land-related legal aid activities Shortly after the land component was initiated, IKP staff recognized that the land rights of poor households were often the subject of cases pending for years before the Revenue Department. IKP engaged a lawyer and in cooperation with Revenue Department officials, IKP staff reviewed the backlog of cases in selected areas in two districts and identified those involving the Project s target population of rural poor. IKP staff, law students, and the Revenue Department worked together to determine appropriate resolutions. The initial Revenue Department case work revealed the potential for legal aid to strengthen the land rights of poor households and identified two areas where the Project could usefully expand: (1) through use of the CBO structure to identify and resolve land issues that never reach the Revenue Court system; and (2) by providing surveying assistance for unresolved land issues of the poor. Elements of the land-related legal aid activities IKP developed a framework for legal aid activities based on the following elements: employment and training of local youth as paralegals 10 and community surveyors, some cases, beneficiaries received land but had no record of their rights. Other groups have been unable to take possession of their land because of lack of surveys. A comprehensive review of the gaps between intended land reforms and the situation on the ground and a discussion of options for increasing land access through use of often unrecognized sources of land can be found in Karuna Vakati Akella, Tim Hanstad, and Robin Nielsen, New Life for Land Reform: the Potential in a Decentralized Systematic Approach, an unpublished paper on file at RDI. 8 This second set of activities is more commonly known within the Project s land component as Non- Purchase Activities to distinguish them from the land purchase activities. 9 The Panchayat Raj and Rural Development Department, SERP, and the Revenue Department entered into a convergence agreement to coordinate their efforts in the Legal Aid Activities. The structure of the land component is described in detail in the Andhra Pradesh Rural Poverty Reduction Project Operational Guidelines, September 2005 (SERP document), The decision to use paralegals to work with the CBOs and community surveyors was based on review of other legal aid programs. As part of the process of developing the Project s legal aid activities, IKP s Legal Coordinator visited the Centre for Social Justice in Ahmadabad, Gujarat. The Center for Social Justice has a long-standing, successful legal aid program that is based on the selection and training of village residents to serve as paralegals. The Centre s paralegals provide training on legal matters, assist in resolving legal matters, and identify emerging legal issues within communities for discussion and action at the state level. Examples of other legal aid programs can be found in Mary McClymont and Stephen Golub, eds., Many Roads to Justice: The Law-Related Work of Ford Foundation Grantees around the World (New York: Ford Foundation). Over the last decade, RDI has designed and implemented legal aid activities in several countries, including Kyrgyzstan, Russia, and Muldova. Descriptions of those projects are available Legal Aid Component for Land Projects (RDI)-5

6 management of legal aid staff by CBOs, and establishment of district land centers and community partnerships. Paralegals. IKP hires one educated youth from a disadvantaged family in each mandal (sub-district) to train as a paralegal. 11 IKP trains paralegals on working with SHGs, land laws and records, Revenue Department procedures, and village inventories (see box). The paralegal must complete coursework on land rights and poverty law through the National Academy of Legal Studies and Research ( NALSAR ). Physical inventory of village As part of their training, paralegals and community surveyors conduct a physical inventory of a village to identify gaps between land records and possession of land. The inventory team obtains copies of maps indicating areas of government land, visits the land to determine who is in possession, compare the findings with the land records, creates a list of all gaps and discrepancies for further inquiry among residents and officials, and notes a plan for addressing the issues, including surveying needs. The inventory process provides training for the paralegals and community surveyors on land records, maps, land laws, interview techniques, and options for resolution of issues. The process also educates the village about land issues and options for resolving land problems. Paralegals work directly with the SHGs, report to the district-level IKP staff, coordinate with community surveyors as necessary, and are responsible to the MSs. 12 The paralegal s primary task is to build awareness of land issues within SHGs, identify land issues impacting SHG members, and help the VO and MS bring the issues before the Revenue Department for resolution. Paralegals also support the Revenue Department by providing assistance with fact-finding, obtaining surveying through coordination with the community surveyors, and arranging for legal opinions as necessary. Community surveyors. Like many states, A.P. has a limited number of trained surveyors and a multitude of land issues that require surveying as a precondition to resolution. 13 Because the lack of trained surveyors is delaying the ability of poor households to realize the benefits of secure land rights, the Project trains local youth as community surveyors as part of the legal aid activity. The community surveyors work in cooperation with local government surveyors and the paralegals in an effort to increase the state s ability to from RDI. After studying models from other states and countries, IKP initiated a pilot paralegal program in one district to train educated rural youth as paralegals to work with the CBOs to identify and resolve land rights issues. 10 In a six-month period, the pilot successfully resolved 152 pending cases (many involving several families) comprising 1,648 acres of land. 11 To date, approximately 80 percent of the youth participating are male because the position requires independent travel and overnight stays in villages, which presents a cultural barrier for most young women in India. 12 Paralegals report to the IKP district office every two weeks, and IKP tracks progress and results statewide. 13 Andhra Pradesh includes a substantial amount of land that was not surveyed during British rule because it was under the control of regional or local royalty, vacant wasteland, or forestland. Legal Aid Component for Land Projects (RDI)-6

7 survey land, especially in cases where the resolution of land cases and receipt of patta has been pending because of lack of surveys. The district-level CBO, the Zilla Samakhya, hires an average of one community surveyor for each mandal (roughly 18 per district). Community surveyors must successfully complete an extended session of the Survey Training Academy, receive training on SHGs, land laws and records, and village inventories, and complete an apprenticeship with a government surveyor. Once trained, the community surveyors conduct land surveys in coordination with the paralegals and the local government surveyors. Like paralegals, community surveyors meet with members of SHGs to help identify land rights issues, especially those that surveys may assist in resolving. Partnerships with law schools and lawyers. IKP staff have established relationships with law schools to conduct clinical programs for law students and offer law students opportunities to work on land cases on a volunteer basis. 14 IKP staff also plan to create district-level panels of lawyers to support legal aid activities. Land Rights and Legal Assistance Centers. The expanded design includes district-level Land Rights and Legal Assistance Centers, which IKP has opened in a handful of districts and plans to extend to all districts. The Centers will provide office space for staff, access to land records and research materials, and assist the Revenue Department with court procedures. Management. Each Zilla Samakhya hires one Land Manager and one Legal Coordinator. The Land Managers are retired Revenue Department officials and serve as liaisons between IKP staff and the Revenue Department, supervise the work of the community surveyors, and oversee the land purchase activities and Center operations. The Legal Coordinators coordinate legal aid activities within the IKP land component and. provide technical support. At the state level, a Project Manager manages the land component and a Legal Coordinator is responsible for the legal aid activities. Scale and costs of component. As of October 2007, the Project extended legal aid activities state-wide, facilitated the hiring and training of 401 paralegals, and has 400 community surveyors under apprenticeship. The Project hired and trained 21 Legal Coordinators and 15 Land Managers. The legal aid activity is funded by the World Bank as part of APRPRP. The legal aid activity comprises most of the budget for Non-Purchase Activities, which had an annual total of Rs 107,100,100 (approximately USD million 15 ) in Staff dedicated to the legal aid component receive salaries between Rs 2,500 and Rs 10,000 (USD 63 to 625) per month, with some positions receiving travel reimbursements. The 14 In particular, NALSAR, the Hyderabad-based national law school, has created a certification course for paralegals, provides assistance with the selection, training, and evaluation of legal coordinators for the legal aid component, and offers research and documentation assistance of issues relating to tribal land rights. 15 The estimate applies the range of exchange rates for the period from USD 1.00 = 40 INR to USD 1.00 = 45 INR. Legal Aid Component for Land Projects (RDI)-7

8 annual cost of labor dedicated to the land component is Rs 39,180,000 (USD 979,500). State and district level IKP staff, 16 who receive a total of Rs 466,000 (USD 11,650) per month, or Rs 5,592,000 (USD 139,800) annually, also spend some percentage of their time on the legal aid component. Legal aid activity achievements Land issues identification and resolution. The Project continues to roll out the legal aid activities state-wide and much of the last 18 months was spent hiring and training staff. Nonetheless, as of November 2007, the legal aid staff identified land issues impacting 78,873 poor people and 110,000 acres of land. The issues addressed include matters relating to issuance of pattadar passbooks (which evidence land ownership, use, and encumbrances), boundaries, and possession of land. Approximately 27 percent of the issues identified have been resolved. Other achievements. Legal aid staff trained approximately 500 SHG members on land rights and drafted handbooks on land issues for use by SHGs, paralegals, and Revenue Department officials. Legal aid staff helped the Revenue Department identify areas where land may be available for use by the poor and policy decisions that would benefit the poor. SHG members report that they consider themselves capable of discussing their legal rights and applying to government officials for enforcement of those rights. Many Revenue Department officials have begun to look to the legal aid staff to assist them in land matters. Finally, training large numbers of local youth as paralegals and community surveyors provides job skills to rural youth and grounds the knowledge regarding land rights in the community. Satisfaction with design The Project is in the process of implementing the current design for the legal aid activities and has not yet evaluated the design. However, anecdotal evidence suggests that, to date, the design is working. There has been little attrition among individuals hired as paralegals, community surveyors, or in management positions. CBO members interviewed in three districts generally report satisfaction with the work of the legal aid staff and demonstrate an awareness of land matters that suggests successful capacity building. They report no problems dealing with the paralegals and community surveyors and the pace of the work is acceptable to most. Most paralegals and community surveyors interviewed express enthusiasm for the job and training received, although they believe their salaries are too low. In some areas with a large variety of land issues, Project staff may decide to refine its approach by limiting initial work to one or two issues that can be resolved within a reasonable timeframe, rather than requiring paralegals to become experienced in a number of different types of claims or be pressured to resolve all land matters in a particular village. 16 These staff positions are the IKP State Project Manager (Land), IKP Project Manager (Non-Purchase Activity), District Project Managers, and Additional Project Directors (district level). Legal Aid Component for Land Projects (RDI)-8

9 At least three factors assist in the success of the design: (1) IKP staff s experience as Revenue officers gives them an advantage in identifying areas with significant land issues adversely affecting the poor and local officials interested in resolving the issues; (2) a strong CBO structure provides an existing participatory framework in which land issues can be addressed; and (3) the community surveyors offer the Revenue Department a concrete service to the department. Future of legal aid activities In these early days, state government officials and CBO leaders interviewed by the authors perceive that the legal aid activities are providing positive benefits at low costs and are not yet meeting the full demand of such services from the targeted poor families. Systematic monitoring and evaluation is required to confirm these perceptions and the state government is in the preliminary stages of planning for such M&E. Detailed estimates regarding the future level of land-related legal aid services needed must await that evaluation, but several observations can be made. First, the legal aid is uncovering thousands of land rights problems faced by poor households that are not identifiable from an examination of the land or Revenue Court records. Legal aid staff and CBO members are identifying and facilitating resolution of these issues in a bottom-up, participatory fashion that creates the basis for empowerment. Second, the structure is flexible and can be adapted for different settings or permitted to naturally evolve as needs change. For example, community surveyors in A.P. will be less necessary once the backlog of cases requiring surveys is cleared. In other states, needs for community surveyors will differ depending on local circumstances. A preliminary survey of the types of land issues facing the poor and how they might be resolved will identify the initial needs. Third, some preliminary examples of costs are encouraging. In a pilot in Nalgonda District focusing on unregistered private transactions, the costs for identifying and formalizing the land rights appear to be about $1.25 per acre. 17 Finally, the state government and the CBOs appear to support the early legal aid efforts. This support will be crucial to a sustainable effort. However, state government officials and some CBO leaders see the possibility of paralegals and perhaps community surveyors becoming absorbed within a line department or the CBO employment structure. The Project assumes that if the legal aid is to remain targeted on the poorest, the activities will always require some ongoing support from the government, although the CBOs and clients themselves may be able to contribute an increasing portion of the costs. 17 Tim Hanstad conversation with Karuna Akella, Andhra Pradesh Center for Good Governance, Hyderabad, February 4, Legal Aid Component for Land Projects (RDI)-9

10 Adoption of legal aid activity Project staff considering legal aid activities will want to evaluate the potential project environment and perform a cost-benefit analysis. Evaluation of environment. The following are characteristics of a favorable environment for a land-related legal aid component: Significant number of disadvantaged people adversely impacted by one or more types of land issues. Areas where there are high numbers of landless people or people who have been unable to use land effectively are often areas with significant numbers of unresolved land issues. 18 Supportive legal framework. Legal aid will be most effective in areas where the laws, regulations, and legal procedures can be used to favor the poor and marginalized. 19 Functioning land administration and dispute resolution systems. Legal aid will be most effective in an area with a relatively accessible and reliable system of land administration and recordkeeping, 20 and a framework that provides for dedicated land officials and specialized or administrative courts. o Imperfect circumstances. Even if systems are functioning imperfectly and the legal framework is not wholly supportive, legal aid activities can be effective. In challenging circumstances, project staff should evaluate the types of land issues and local needs, and based on an assessment of the legal framework and institutions, initially select one issue or a small number of issues that have the best chance of success. 21 Working relationship between project staff and government. The ability of legal aid to resolve the land problems of the poor within DPIP-type projects will depend on working relationship between legal aid providers and Revenue Department functionaries. 18 Project staff can conduct village inventories and interview locals to determine the types and numbers of land issues in an area. 19 Examples of such provisions include laws permitting the regularization of long-possessed public land, allowing persons inappropriately dispossessed of land to recover the land, allocating certain categories of land to marginalized groups, and granting relief from stamp fees and registration costs. 20 The Right to Information Act and land records computerization projects have increased the accessibility of land records in many Indian settings. 21 For example, in an area with a high number of poor families that have long possessed government land and a law that permits such families to seek regularization of their possession, the project could limit its legal aid services to that issue. The component could provide capacity building and sensitization to these poor families, government institutions, and courts, assist in fact finding, and provide representation. This highly targeted approach focused on one type of land issue will build the experience and capacity in paralegals and CBO members in a controlled and realistic fashion, allow the project staff to develop solid relationships with government officials, and create an experience that can serve as the foundation for regional and topical expansion in the future, if desired. Legal Aid Component for Land Projects (RDI)-10

11 Functioning CBOs or NGOs. The success of legal aid activities depends on the ability to connect with the local population in a manner designed to identify and prioritize land issues. The information shared by the SHGs and NGOs assist the paralegal in evaluating the land issues in the village and the contexts for those assists the paralegal to prioritize or sequence the issues to increase the likelihood of early success. Performance targets. Each area evaluated for legal aid activities will be unique and categories for performance targets and the targets themselves will vary. Categories for possible performance targets include: numbers of land issues identified; number of formal and informal disputes resolved; acreage involved in resolved disputes; costs per acre or per case resolved; number of acres surveyed; number of plots demarcated; number of beneficiaries put in possession; number of patta/land titles issued and registered; number of land record entries corrected; number of trainings held; number of manuals drafted; number of clinical courses created; number of legal aid centers established; number of visits to legal aid center by target population (and others); and number of local residents hired and trained. Cost-benefit analysis. Based on the results of the evaluation of the project area and considerations of specific legal aid activities, project staff can perform a rough costbenefit analysis of a legal aid activity. A simple analysis will consider the number of potential beneficiaries of various legal aid activities, the extent of land involved, the anticipated impact of legal aid on the value of the land to the beneficiaries, other attendant benefits (such as strengthening of institutions and legal empowerment), and the costs of legal aid staff. Conclusion The legal aid activities supporting the land component of the APRPRP fit within the CBO structure, are increasingly coordinated with the Revenue Department structure, and are a mechanism through which poor households are receiving secure and enforceable rights to land. Legal aid is simultaneously empowering women to assert their legal rights and resolve legal problems and developing relationships between communities and local governments that form the foundation for political action and social change. Legal Aid Component for Land Projects (RDI)-11