A STATUTORY FRAMEWORK FOR THE DOCUMENTATION AND CODIFICATION OF CUSTOMARY AND INFORMAL LAND RIGHTS REGIMES Authors: Araujo, Katia; Githuku, Fridah; Mwaura- Muiru, Esther 02/15/2017 Presenting author: Githuku, Fridah Paper prepared for presentation at the 2017 WORLD BANK CONFERENCE ON LAND AND POVERTY The World Bank - Washington DC, March 20-24, 2017 Copyright 2017 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies. 1
TABLE OF CONTENTS 1. ABSTRACT--------------------------------------------------------------------------------------------3 2. KEY WORDS------------------------------------------------------------------------------------------4 3. EXECUTIVE SUMMARY --------------------------------------------------------------------------5 4. BACKGROUND--------------------------------------------------------------------------------------6 5. KEY CONSIDERATIONS IN DEVELOPING A FRAMEWORK --------------------------8 GRASSROOT-LED LAND MAPPING MODEL------------------9 SOCIAL TENURE DOMAIN MODEL------------------------------13 6. CONCLUSION --------------------------------------------------------------------------------------19 7. REFERENCES----------------------------------------------------------------------------------------20 ABSTRACT 2
Secure land tenure and property rights enable people in rural and urban areas to invest in improved homes and livelihoods. They also help to promote good environmental management and assist directly in the realization of human rights, including the elimination of discrimination against women, the vulnerable, indigenous groups, and other minorities. Africa is home to a large amount of land that, if well secured and brought under proper utilization, could spur rapid development and support millions of people. Customary systems can meet social and economic needs and, although often not documented, can be very secure. However, commercial pressures and the monetization of customary land transactions are eroding the social cohesion that gives customary tenure its legitimacy. Public ownership potentially ensures equal access to land for all, but all too often results in bureaucratic inertia, corruption and political patronage in land allocation. Private tenure systems are intended to ensure the most intense and efficient use of land, but have not enabled the poor to obtain legal land and shelter. The threats posed by insecure land rights will without a doubt undermine the 2030 Agenda and more specifically, Goals 1,2,5,6,10,11,13,14,15,16. Securing land rights is therefore a prerequisite to the realization of the sustainable development goals. KEY WORDS: CUSTOMARY TENURE This system is based on African customary law. The allocation, use and transfer of land are determined by the leaders of the community according to the customary law and practices of these specific communities. Kenya invalidates any customary law or practice that is inconsistent with its constitution. NON-FORMAL TENURE - This system includes a wide range of categories with varying degrees of legality or illegality. They include regularized and unregularized squatting, unauthorized subdivisions on legally owned land, and various forms of unofficial rental arrangements. WOMEN LAND RIGHTS- Secure rights to land accessible to the women population that are clearly defined, long-term, enforceable, appropriately transferable, and legally and socially legitimate. Women s exercise of these rights should not require consultation or approval beyond that required of men. 3
STDM (SOCIAL TENURE DOMAIN MODEL)-This is a pro-poor, gender responsive and participatory land information system developed by the Global Land Tool Network (GLTN). STDM makes visible all types of social tenure relations or relationship between people and land. Rather than mapping a 1 owner to 1 parcel relationship, STDM acknowledges that everyone in a community has some relationship to land and property and it seeks to capture what that relationship is. GRASSROOTS-LED -LAND MAPPING MODEL-A community-led process of documenting land information (including name of parcel, land registration number, original and current acreage, original and current use) developed by GROOTS Kenya and applied in 3 sub counties of Kenya, to date, to develop a digital inventory of public land. EXECUTIVE SUMMARY In developing countries, land tenure and property rights can be formal (freehold, leasehold, public and private rental), customary, or religious in origin; they can also include various types of unauthorized/informal tenure or settlement. In many societies, customary tenure still prevails, based on kinship, membership or relationship with traditional land holding groups. In some sub-saharan African societies, land rights derived from custom predominate in rural and even urban areas. Customary tenure,although not often documented, can be very secure. However, commercial pressures and the 4
monetization of customary land transactions are eroding the social cohesion that gives customary tenure its legitimacy. In 2010, the African Union, the African Development Bank, and the Economic Commission for Africa adopted the Framework and Guidelines on Land Policy in Africa (AUC-ECA- AfDB Consortium, 2010). The Framework is said to reflect a consensus on land issues; and serves as a basis for commitment of African governments in land policy formulation and implementation and a foundation for popular participation in improved land governance (ibid: xi). The Africa Land Policy Framework and Guidelines (ALPFG) acknowledge the particularly marginalized position of indigenous peoples, stating that: Beyond the frequently acknowledged inequalities due to race, class and gender, the marginalization of particular ethnic groups with respect to, access to adequate land remains a perpetual source of conflict. To secure land rights for all, modern day governments must develop progressive & revolutionary land policies and frameworks to govern land access, control, use and development. These include land laws, rules and procedures as well as specialist bodies for land administration. A glaring gap in these areas is the lack of land information systems linking land to the users. In order to deliver secure land rights for all, land information and registration systems must be capable of capturing a range of all forms of tenure and local land management arrangements (GLTN). Customary and formal tenure systems often co-exist and will conflict where different people claim rights to the same land under each system. Where formal legal systems coexist with customary, non-formal, or semi-legal systems; customary and religious authorities and community leaders will have roles in land management along with the government. However, it is important to note that land policies should seek to remove old age rigidities in traditional structures and systems which tend to discriminate against women, while at the same time building on and thereby improving customary & indigenous tenure arrangements. In acknowledging the legitimacy of customary & indigenous land rights, land policy processes must also assert the role of engendered local and community-based land administration/management institutions and structures, alongside those of the State [...] the states also should adopt and support community-led innovative tools and strategies for documentation of customary and indigenous informal land rights regimes. The social tenure domain model (STDM) developed by GLTN, the grassroots-led land mapping model developed by GROOTS Kenya, and other tools that land users have already owned as a means to documenting and securing their land rights, are some of the examples of community-led tools. A statutory framework that legitimizes such models, creates relevant institutions, and allocates resources and expertise is a step in the right direction. The purpose of this paper is therefore to provide a case for, and outline key processes and actions that should be adopted in the documentation of customary and informal land rights regimes. Our 5
hypothesis is that such documentation of customary and informal land rights backed by the state would eliminate the perceived inherent risk of insecurity that characterizes both land tenures. This paper contains a background on customary and informal land rights in the Kenya contexts, the progress made in giving legal recognition to these rights without necessarily formalizing them, and whether that has actually increased security of tenure for men and women alike. It lays emphasis on how both the process and the outcome should enhance gender equality and advance women s land rights. The paper also explains and gives examples of pro-poor community led models adopted and applied in Kenya to document both customary and informal land rights- Community led Land Rights Mapping Models. BACK GROUND Customary land rights" refers to rights conferred by or derived from African customary law. Customs or practices provided that such rights are not inconsistent with the Constitution or any written law. In most African countries, the majority of the population lives in rural areas, and holds land based on undocumented customary arrangements. They often provide the only means for local people to assert their rights. But customary practices over land are not perfect. In some cases, they sustain inequitable or discriminatory practices. Conflicting statutory law or corrupt customary leaders can weaken customary systems. Customary practices often favor men, and thus reinforce women s inequality and poverty. Such shortcomings can and must be addressed if customary systems are to effectively promote local people s rights to land and resources. And, today, strong customary institutions that stand on the side of local people are more important than ever. As global competition for productive land and valuable natural resources increases, both domestic and foreign investors can too easily ignore or dismiss customary rights, especially when those rights are undocumented. Without urgent action to document customary lands, strengthen equitable land governance by customary institutions, and integrate customary and statutory law, millions of people are at risk of losing their rights to land and resources held under customary tenure. Approximately 65-70% of land in Kenya is estimated to fall under the category of community land, defined broadly by the National Land Policy to include a variety of customary tenure rights. This includes clan land, group ranches, communal grazing lands, and community forests. KEY CONSIDERATIONS IN DEVELOPING A FRAMEWORK FOR DOCUMENTATION AND CODIFICATION OF CUSTOMARY AND INFORMAL LAND RIGHTS REGIMES 6
A. MAKE CUSTOMARY LAND RIGHTS EQUAL IN WEIGHT AND STATURE TO "FORMAL" STATUTORY LAND RIGHTS. More recently, the Kenya National Land Policy of 2009 placed customary land rights on equal legal par with freehold tenure and public land. This is a great stride on improving land governance. The law must clearly recognize customary land rights as formal land rights that are equal in validity and weight to any rights that have been granted by state agencies. The law should allow and encourage communities and individuals to register their rights according to need, not according to a strict time limit or deadline. B. ESTABLISH STANDARD AND GUIDELINES FOR PARTICIPATORY DOCUMENTATION AND PROTECTION, COMMUNITY AND INFORMAL LAND RIGHTS to protect from encroachment, grabbing and evictions. Through use of communityled models take stock and register in a participatory manner all customary and informal rights in a manner that eliminates conflicting interests and provide detailed information on land transition. Community titling has the potential to safeguard an entire community's land at once, and may therefore be a faster and more cost-effective means of tenure protection than individual titling. The law should be deliberate on the participation of women,youth, indigenous, and marginalized communities from the planning stage to the development of the inventory during the entire process of documenting land rights. COMMUNITY-LED MODELS FOR DOCUMENTING LAND INFORMATION: KENYAN CASE STUDIES 7
i. THE GRASSROOTS LED LAND MAPPING MODEL IN KENYA (DEVELOPED BY GROOTS KENYA) 8
9
10
An online portal http://groots-kenya.maps.arcgis.com/home/index.html shows all the parcels of public land in different categories in 2 sub counties of Muranga in Kenya. The online data was collected using collector GIS by local grassroots women. 11
ii. SOCIAL TENURE DOMAIN MODEL-A PRO-POOR, GENDER RESPONSIVE AND PARTICIPATORY LAND INFORMATION SYSTEM DEVELOPED BY THE GLOBAL 12
LAND TOOL NETWORK (GLTN) AND APPLIED BY GLTN IMPLEMENTING PARTNERS 13
14
15
16
C. INVEST IN COMMUNITY EDUCATION AND SOCIAL ORGANIZING To enhance effective participation of communities in the documentation of land rights, the state should deliberately invest (both in terms of resources and political goodwill) in community organizing and awareness creation. These are lessons evident in the Kenya case studies listed above. Furthermore, it is through community education and organizing that matters of gender and women empowerment, inclusion of youth, disabled indigenous, and marginalized communities in the entire process are to be initially addressed. This investment should result in the emergence/formation of engendered and all-inclusive community land management structures/institutions that are highly accessible; and leverage local individuals' intimate knowledge of local conditions. D. EXPLICITLY AND CLEARLY PROTECT WOMEN'S AND OTHER VULNERABLE 17
GROUPS LAND CLAIMS AND ESTABLISH WOMEN'S RIGHT TO HOLD OR OWN LAND. In regards to women s land rights, it is essential to develop a focused program and coordinated efforts under the three main themes: 1. Legal empowerment of women; Enacted Laws should explicitly recognize the historical marginalization of women in exercise land rights and include specific provisions that aim to reverse the historical trend. This enactment should be followed by regulations and mechanisms of implementation. Further a system of monitoring implementation must be put in place to ensure the process of legal empowerment is translating to women access to their land rights. 2. Organizing and social movement building; Community organizing and social movements will offer 1) a platform & structures for meaningful interaction between the right holders (Women) and the duty bearers, an avenue to transfer knowledge & skills to women for effective participation in land governance and organs for monitoring implementation of agreed legal framework. 3. Land, customs and women: Increased investment in the eradication of retrogressive customs that undermine women access and control of all types of land is imperative. State frameworks must factor a people led process of examining different cultural practices with the intent of promoting the progressive one and socially (Beyond legal) denouncing retrogressive cultures. This process must aim to triumph a challenge faced by current laws that illegalize certain discriminatory customs yet communities continue to practice them undermining the importance of such laws Laws must directly address the web of reasons that impact why women are not allowed to own land individually within some customary systems. In addition to simply proclaiming the right, the law should also establish formal mechanisms and promote legal incentives/affirmative action to promote and protect women's land rights. Legislation should place the burden of protection on local officials (state and community), rather than on the women themselves. E. EXPLICITLY PROTECT COMMUNAL AREAS, CUSTOMARY RIGHTS OF WAY AND OTHER SHARED LAND USE AND ACCESS RIGHTS. As land claims become increasingly individualized and competition for scarce land and natural resources intensifies, it is important that the range of land use entitlements protected by law include communal areas and customary rights of access and rights of way especially to shared water points like springs and rivers, community forests, grazing lands, and other natural resources that are rapidly increasing in value. Specific protections should ensure that common properties and other lands not currently under cultivation or use by a specific community are protected from allocation to elites, investors, and state development 18
schemes. F. PROVIDE FOR AND ENCOURAGE THE CREATION OF COMMUNITY BY LAWS. Documenting customary and informal land claims and devolving land administration and management to the local community only works if the community has a strong sense of community members' rights and responsibilities and of the rules that govern the use of secured lands and natural resources. Laws should mandate that communities discuss and determine how they will jointly administer communal areas and shared natural resources. In requiring communities to publicly debate and define the rules by which they will govern themselves, these laws create a space for dialogue and democracy, and will help to ensure protections for the rights of vulnerable groups including women and girls, youths, and other marginalized groups, especially in the informal settlements and indigenous communities where land control has been traditionally male-dominated. All community by-laws should demonstrate how the rules, procedures and practices factor gender in a manner that eliminate discrimination against women. G. PROVIDE FOR AND ENCOURAGE THE CREATION OF LAND NATURAL RESOURCE MANAGEMENT PLANS THAT ENSURE SUSTAINABILITY. Laws should provide for community-based decision-making procedures and protocols that vest land and natural resource management decisions in the local communities themselves. Laws may include mechanisms that prompt communities to identify, record and continue land and natural resources management practices that have proved over time to enable the sustainable and equitable use of land and natural resources. H. ESTABLISH LAND ADMINISTRATION AND MANAGEMENT SYSTEMS THAT ARE FREE OR EXTREMELY LOW-COST FOR THE POOR. New technologies (such as GPS/GIS systems) should be leveraged and put at the disposal of local communities for continuous updates of land information, convenience and for increased accessibility of data. I. PROACTIVELY ADDRESS ISSUES OF POLITICAL WILL. Lawmakers need to anticipate that the implementation of the more progressive aspects of a law, that recognizes customary tenure and increases the land tenure security of the poor people living in the informal settlement, will be frustrated by elite power holders. The experience from the Kenyan case studies above illustrate that government officials tend to selectively enforce and implement only those sections of the law that advance their agendas and interests. Lawmakers must therefore be ingenious in drafting context- 19
specific laws that include mechanisms that foster and generate the political will necessary for comprehensive implementation of all sections of the law. J. CREATE POWERFUL NEW ROLES AND RESPONSIBILITIES FOR STATE OFFICIALS. State officials need new roles and responsibilities as progressive new laws will increasingly devolve their duties to local or customary bodies. State officials must play a role in enforcing the land rights of women and other vulnerable groups and act as an important check against abuses of power by customary authorities. They may also provide technical advice and capacity-building to customary and village-level land management structures, help communities negotiate, manage and enforce contracts with investors, train customary leaders in national laws, and adjudicate appeals from the local level. K. RECOGNIZE THAT CUSTOMARY RULES AND STATUTORY LAWS ARE OFTEN NOT RADICALLY DIFFERENT. "Custom" can be best thought of as "the local way" of doing things, and societies across the world have established surprisingly similar mechanisms for addressing what is actually a fairly limited set of property transactions and relations. When closely analysed, customary and statutory legal systems are not as divergent as may be thought. Lawmakers can start by working to understand customary laws and then identifying areas of overlap that may be useful for creative integration of statutory and customary land law. CONCLUSION In conclusion, it is important not to underestimate rural communities' desire to document and protect their customary and informal land claims. While there has been growing policy and legal innovation in the past 10-15 years in statutory recognition of customary and informal land rights, especially in Africa, an alternative to rights formalization, titling, and more beyond recognition needs to be done. The approach of documenting and codifying customary and informal land rights recognizes that this right need not be inherently insecure and that the greater source of the vulnerability lies in the fact that both regimes in most cases do not enjoy statutory recognition. Protecting and enforcing the land claims of the rural poor is critical not only for the promotion of local development and prosperity, but also as a matter of justice and equity. As land scarcity and food insecurity continue to grow and governments continue to grant large scale land concessions to foreign investors, documenting land held under customary tenure will become increasingly critical to protecting the poor's land rights, safeguarding rural livelihoods and enhancing sustainable and profitable local natural resource 20
management. Importantly, Alden Wily (2006) reminds us that "insecurity of land tenure is essentially a political condition that can be made, and unmade, at the political level". It is now up to governments to pass or amend national land laws to streamline and simplify these processes and adapt their administrative systems to make them accessible to and affordable for rural communities. In contrast, when land laws decentralize land administration bodies - bringing the state apparatus downward - institutionalize community-level land administration and management, and decrease central state control over land and resources; the central state is likely to lack the political will or not devote necessary resources to properly implement the law. For the latter approach to work in practice, it is therefore critical to devise methods of ensuring that there is political will to successfully implement such laws, and not only to adopt them. While land rights registration alone will not bring prosperity to communal and informal land areas, it does bring additional social stability and cohesion to these areas, and significantly improves the lives of the households. REFERENCES Rachael S. Knight. (2010). Statutory recognition of customary land rights in Africa; An investigation into best practices for lawmaking and implementation. FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS Rome, Leslie Hannay. (Last updated Jul 23, 2014). Women's Land Rights in Uganda;https://www.landesa.org/wp-content/uploads/LandWise-Guide-Womens-land-rights-in- Uganda.pdf AUC-ECA-AfDB Consortium. (2010). FRAMEWORK AND GUIDELINES ON LAND POLICY IN AFRICA. Land Policy in Africa: A Framework to Strengthen Land Rights, Enhance Productivity and Secure Livelihoods. Addis Ababa, Ethiopia, GROOTS Kenya. (2013). TAKING ACTION: Community-Led public land mapping process (A community reference guidebook)-nairobi, Kenya http://www.gltn.net/index.php/land-tools/gltn-land-tools/social-tenure-domain-model-stdm http://www.landesa.org/wp-content/uploads/landesa-women-and-land-issue-brief.pdf 21
http://www.uneca.org/sites/default/files/images/stdm_presentation_at_2014_conference_on_land _policy_in_africa.pdf 22