BEYOND LAND TENURE REGULARISATION: ACHIEVING SUSTAINABILITY RICHARD BALDWIN, CLIVE ENGLISH, GAVIN ADLINGTON DAI Europe Ltd Richard_baldwin@dai.com Paper prepared for presentation at the 2016 WORLD BANK CONFERENCE ON LAND AND POVERTY The World Bank - Washington DC, March 14-18, 2016 Copyright 2016 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.
Abstract Recent innovation in practice means it is now possible to undertake massive first registration of land rights at national scale in African countries involving millions of parcels at under 10 usd per parcel (Rwanda, Ethiopia). We believe firmly that the goal in Africa should not be just the completion of the first registration of rights, but rather that land rights are assigned, and a system put in place to support transactions and maintenance of the registers so that legal and physical persons can effect transfer or disposal in a secure and transparent manner. While there are now many guidelines for private investment, little is said about providing low cost sustainable solutions to support transactions involving community members or investors. In this paper we look at a) the options for achieving Land Title Regularization of formal or customary rights; b) innovative solutions for supporting transactions and Registry maintenance; and c) achieving sustainability for the longer term Key Words: Keywords: land tenure regularisation, first registration, sustainability, innovation, registration of transactions
1. INTRODUCTION It is now accepted that there is clear evidence that property rights are essential foundations for poverty alleviation and economic development. In Africa, it is less clear as to what may be the most effective way of establishing and maintaining those rights, with formal and customary tenure systems both offering degrees of security but radically different development possibilities. At the present time, many countries are considering or have embarked on major land registration programmes to formalise and protect land rights in rapidly developing economic and social contexts. Large scale systematic Land Tenure Regularisation (LTR) programmes designed to systematically recognize and register land rights across large areas have either been completed or are being considered involving inter alia, a long term emphyteutic lease (Rwanda); a lifetime holding right (Ethiopia); certificates granting rights of occupancy or customary rights of occupancy (Tanzania); or customary land rights (Namibia) as well as many other countries. While there has been some spectacular success in achieving large scale LTR, for example in the case of Rwanda (Edwards, 2014), where almost the whole country was registered in less than five years, there has not always been an emphasis on the establishment of a system able to support and maintain the registers. This is because the focus has been on the importance of clarifying and registering land rights and then developing new tools and techniques to achieve this in a cost effective manner. The wider objectives of maintaining registered rights and supporting further land transactions has received less attention. As a result there has been less effort and innovation in developing solutions. This is a key area as the lessons from previous LTR programs make clear. For example, the large Adjudication of Title and Land Consolidation programs in Kenya that started in the 1960 s were criticized because they initially showed little impact on the expected economic impacts, including land sales, access to credit, consolidation of holdings to more productive farmers or increases in production (Green, 1987), and in fact it made the rights of women and minors less secure. Subsequent studies showed that inheritance and sales were not being registered because of lack of knowledge, lack of easy access to registries and the time and cost involved. Informal transactions were causing more disputes and the traditional methods of dealing with these were no longer usable because the land was now in private ownership. These experiences illustrate it is not always clear that people understand or appreciate the need for registering subsequent transactions or other changes. The establishment of the register through the process of First Registration is a one-off activity; supporting the maintenance of the register requires that people understand the need for recording changes; are motivated, and there is a facility in place to allow this to take place. In Africa, it has proved very difficult to build and maintain the technical infrastructure to support ongoing land and property transactions. In this paper the options for achieving LTR of formal or customary rights; innovative solutions for supporting transactions and Registry maintenance; and achieving sustainability for the longer term. In particular we advocate that the Fit for Purpose paradigm (Enemark, Bell, Lemmen, McLaren, 2014) is extended to address the problem of the service delivery and sustainability of the technical infrastructure and provision of land administration services through low cost sustainable solutions to support transactions. In this paper we put forward a model based on a local register TRUST Technical Register under Social Tenure which can be customised and deployed as a rural land register and we believe can operate in a sustainable manner.
2. ACHIEVING LTR OF FORMAL OR CUSTOMARY RIGHTS Low cost mass registration at national scale is now a reality Land matters in Africa in the last ten years have received a great deal of attention (Baldwin, et al, 2015). Population growth, demographic movements and increased large scale agricultural investment (especially since 2008) have placed land resources under greater pressure. Increasingly, the public land administration agencies are being pressed by the public, investors and the politicians, yet have limited capacity, infrastructure and financial resources to be able to provide secure land administration and management. Recent initiatives such as the the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT); the Principles for Responsible Investment in Agriculture and Food Systems (PRIA), and the African Union Land Policy Initiative have all highlighted the issues of land governance and the importance of land policy and spelled out what are the goals, but do not set out practical measures which can be implemented step by step. The fit for purpose paradigm does concentrate on practical steps, notably advocating measures which can lead to simpler solutions including adopting general boundaries, aerial images for boundary identification, acceptable accuracies for survey work. There have been real advances made adopting these techniques, for example in Rwanda, almost the entire country consisting of more than ten million parcels was registered in a systematic way in less than 3 years. A similar project is currently under way in Ethiopia (Leckie, et al, 2016). What do we register? Namibia is systematically registering its customary lands, and Tanzania, is about to scale up its village based registration programme. In each case considerable effort and investment has been, and is being, concentrated on the most equitable, transparent and cost efficient methods of delivering these mass first registration programmes. Traditionally we have distinguished very strongly between customary and formal tenure systems. In the same country there will be different laws; different processes, and different agencies responsible for their identification, adjudication and recording. The continuum of land rights model (UN Habitat, 2010) shown in Figure One considers that land rights can have a continuous spectrum, and it is possible to record (or register) any of these rights. Figure One: The continuum of land rights (UN HABITAT 2010)
In some countries, such as Namibia, the customary rights have been enshrined within the Communal Land Reform Act (2002) which permits single and group registration within demarcated village lands. In Tanzania, CCRO (Certificates of Customary Rights of Occupancy) are granted on village lands. In both these cases we are dealing with a legitimate tenure system. A recent literature review carried out by (Payne, et al, 2015) showed that a number of approaches and interventions were successful in fostering compliance with legitimate tenure systems and achieved positive development outcomes including freehold ownership through land titling; leasehold; land registration and land use certification; community land trusts (CLTs); common or communal ownership; and private land rental. Yet we tend to place most emphasis on trying to put in place systems based on formal titling, and the findings of Payne suggest that other tenure forms may also be effective. We can extend the continuum of land rights model of Figure One, by also considering the formal registration or informal recording of these rights (Figure Two). In European land administration systems, we consider the formal registration as a kind of juridical cadastre, where rights and the parcel extent and position are formally registered. Traditionally, we consider the recording of informal rights as something informal, and regard the formal registration as superior. Hence we usually try to regularise informal land rights and convert to some kind of formal right which can be formally registered (e.g. lease). Figure Two: The Land Tenure Flux Model Figure two suggests that another way to proceed is to simply record or register the informal or customary right, without converting it to a formal land right first. There is increasing evidence that customary land tenure systems and informal markets are able to support access to land and meet local land occupiers needs; indeed this is a central tenant of the ULM approach - Incremental tenure improvement approach of Urban LandMark (Napier, et al, 2013) where local recording of land rights is regarded as a potential first step towards eventual formal recognition, while providing some level of recognition and evidence of occupation. This thinking leads to the conclusion that we can often serve the needs of legitimate land rights simply by recording the customary or informal rights in the same way as the STDM approach (Lemmen, 2010) and we do not try to convert all rights to formal rights as part of the registration process.
How do we register? DAI pioneered a low cost mass registration approach (English and Edwards, 2012, Edwards, 2014) and demonstrated this in Rwanda where more than ten million parcels were registered in five years at an average cost under $7 US. This methodology is now being applied in Ethiopia and trialled in Zambia, and very similar approaches have been developed elsewhere (Namibia, Mozambique). In Ethiopia, more than 14 million parcels will be subject to second level certification (assignment of rights and parcel) at a cost of some $90 million usd. Part of the breakthrough on cost was achieved by the use of local para surveyors and para legals, with extensive public and community engagement. We can expect this model to continue for rural registration. In urban registration, especially in dense built up areas, there is still a reliance on more precise survey tools such as RTK GPS or field survey. Where we are dealing with less wealthy communities or informal settlement, the cost of these techniques is simply too high, so we can expect to see more use of high resolution imagery as the availability continues to improve; more use of the ULM approach. While the Rwanda breakthrough is based on adoption of imagery, general boundaries, acceptable accuracy rather than highest possible accuracy for spatial data, and implemented through a strong participatory programme; there is now the possibility to use hand held digital devices that are highly pervasive, low cost, and widely deployed mobile phone technology. This has been pioneered by Cloudburst and supported by USAID in Tanzania through the MAST (Mobile Application to Secure Tenure) project, and is to be further tested and scaled up by DAI over the period 2016-2019. A further innovative step is that while the Rwanda approach used a core team to move systematically from village to village, and carry out the registration, with MAST the emphasis is on providing a tool, and then facilitating and enabling the community to act itself. 3. INNOVATIVE SOLUTIONS FOR REGISTRY The examples from Kenya in the introductory section outlines some of the reasons that land administrations systems fail.. In the 21 st Century land administration systems will nearly always be developed using computerized systems. They are more efficient and can hep to deal with problems of transparency and access if well designed. However, land administration projects worldwide are littered with failed large IT projects. The most satisfactory approach that has been proved to work is the step by step approach with strong local involvement (Adlington and Tomchovska, 2012) which proved to be the most successful of the approaches used in the modernisation of the land registration systems of the ECA countries over the period 1990-2012 where the World Bank committed more than $1 billion. The provision of land administration services is usually the responsibility of Government in most countries and are resourced and budgeted by the relevant government Ministry. To establish the required information management system, a responsible body, often a government Ministry conceives and then implements a large information systems project, which may be designed to hold all land related geoinformation and associated data in an integrated system. The intention is that such a system will cascade down to the decentralised agencies at the local level. The problem is that these projects are of immense size, long duration, great complexity, and are often trying to satisfy the needs of quite separate business units. The projects can become bogged down in procurement, design, or implementation and the funding requirements forroll out, support and operation can be very high and unsupportable (Adlington and Tonchovska, 2012).
At the present time, in Africa there are no automated land administration systems operating at a national scale across the country and able to provide services at local, regional and central level. This is in stark contrast to the ECA region (ECA), where many of the countries are now rated as within the top 20 or so countries for ease of transfer of property rights (World Bank, Doing Business, 2016). It seems unlikely that the current generation of conventional large IT projects currently being planned or executed in Africa for national land administration systems will be any more successful than earlier attempts. Rwanda (current ranked 12 in the 2016 Doing Business report for registration of property) is probably the closest to success, but even in Rwanda there are real questions about how the system can be maintained, once donor assistance is withdrawn. A radical new approach to registering and managing land rights was proposed by (McLaren, 2011), where citizens or groups could be engaged directly within a new citizen collaborative model for land administration and would directly declare their rights to an open data initiative or to some recognised authority, with the technology being delivered through mobile phone or similar devices. This in turn has led to the establishment of the MapMyRights and Cadasta initiatives. Cadasta is currently engaged in building a cloud based technology platform that will act as the host for data collected in this manner. If these pilot activities prove to be successful and replicable on a large scale they could have a major impact on land administration systems across Africa. The other big development is the use and acceptance of open source software, especially for geospatial solutions, which is changing the price/performance relationship, and offers the prospect of geospatial solutions cascading down to local districts without significant software licensing costs. Initiatives such as the FAO SOLA and Open Tenure (www.flossola.org/) are offering the possibility of genuine open source solutions and have been trialed in several countries in Africa and Asia/Pacific. So today we see a number of approaches to providing registry solutions being tested in Africa Traditional Systems Integrator / vendor solutions. Open source generic solutions (SOLA, Open Tenure) Global technology platforms, with crowdsourcing or intermediaries (Cadasta) While each of these approaches has its particular advantages and disadvantages, we should recognise that the requirements for an urban land administration system able to meet the needs of Dar es Salaam or Addis Ababa are quite different from what is needed by a rural village or district in rural Tanzania, or Northern Namibia. Given the demands of the property market in the larger urban centres and the volume, value of transactions it is likely that there is enough demand to stimulate and support a functioning land administration unit to serve its needs. Outside of the urban centres the demands are quite different. In the case of Tanzania, the system is heavily decentralized and the administration is at the local district and village level for all village lands (70% of the country), yet there is little chance of providing automated land registry services at that level (it is estimated that there are more than 13,000 villages in Tanzania). Recognising this, we propose the idea of local registries that can manage land records at the local level in a simple manner and thus are able to effect local changes. This is constructed on an open source platform, building directly on the developments of SOLA, Open Tenure and STDM, yet providing links to the national systems (where they exist). We look at how this would work, and how it can be supported with community participation or local crowdsourcing.
DAI is developing an application called TRUST - Technical Register under Social Tenure which will provide a local land registry function based on open source software and operating on a mobile phone, tablet or similar device. Unlike the Cadasta approach, the records will be managed locally, ensuring the communities have complete ownership (and responsibility). A village based TRUST system is replicated to a remote host at least once every 24 hours. Where a national system is planned to exist, then TRUST will supply data to that national system. DAI will develop TRUST and deploy it initially in Tanzania where it will be linked to the MAST application. Figure Three shows how this will function. TRUST will have a simple data model based on LADM (ISO 19152) and will accept data from MAST or other entry devices. The communities themselves (with DAI facilitators) will be responsible for data entry, and it will operate in accordance with the requirements of the Village Land Act. We see this approach as having the following advantages a) The communities will have the tools MAST, TRUST, which they can use themselves. They will operate in a simple manner and handle all basic land administration requirements. b) The technology platforms are low cost, easy to use, replaceable and pervasive no significant costs in deployment c) The applications will simply run as an app, and to the user will appear just like any other. d) Systems will be backed up daily Figure Three: Integration of MAST with TRUST LTA First registration of land rights; complete VLCs, VLUPs, CCROs POST-LTA Support transactions and information services Data Management Web Application Village able to manage its land resources and operate front office; district registry operational with TRUST registry software MAST data capture tool MAST TRUST CCRO Issued Application for updating/ request for information TRUST low-cost software in district/village
And importantly, any registration carried out using MAST immediately has a TRUST system for data management, no matter how small and local there will be no situation where data is being registered and then cannot be maintained. 4. ACHIEVING SUSTAINABILITY IN THE LONG TERM Any sustainable solution must manage local needs as well as offer opportunities for development: - including supporting sound investment within the community thus allowing communities to engage in productive and mutually beneficial matters with external investors. While there are now many guidelines for private investment little is said about how low cost sustainable solutions to support transactions involving both community members and investors can be put in place. We intend to trial the MAST/TRUST system and see if this is able to provide a solution which is replicable and scalable. Looking at the wider long term sustainability requirements, the accepted European approach is to ensure that there is a significant cost recovery of the services being provided which will support the operational costs. In some land administration agencies (e.g. HMLR UK), the agency makes a return on investment and pays a dividend to Treasury each year. This model works as the infrastructure is in place, the bulk of the properties in the UK are registered; there are few disputes of land registry entries (good data integrity); the levels of automation are high, and there are sophisticated products and services. There is also a strong demand for the services. In the Eastern Europe / ECA regions, many of the land administration agencies are now achieving significant cost recovery of their operational costs, or in some cases, make a surplus. This is driven by the Land Market activity. Figure Four shows the Land Market model of development in Eastern Europe, where initial reforms and investment into the land administration agencies established the necessary infrastructure and capacity. Figure Four. Strong Land Markets support sustainable land administration services (Baldwin and Dale, 1998)
The EU, World Bank and other donors embarked on an intensive institution building programme which also supported property privatisation, restitution, compensation and the creation of land registries and cadastral systems and massive data creation programmes. As it became possible to transact, and financial instruments such as mortgages became available, the market itself started to take off and the land market activity increased dramatically as demand grew The result was that within 15 years, most East European countries had built land administration systems supporting more mature stable markets, with transaction levels at the same kind of level as western Europe. In the EE/ECA model, it was the increase in capital availability and liquidity, access to credit and the perceived security of tenure that all drove the market. This is unlikely to be the case in many African countries, and the demand will have to come from somewhere else. Just as we have had a revolution in how LTR is carried out, so we need a revolution in how the Registries can be established, operated and financed. In Eastern Europe and ECA, the demand came as the economies aligned with western European norms, and there was enough capital and liquidity generated by the economic transition to drive the property market, after the initial reforms. We believe that for sustainability to be achieved there has to be a demand, and in Africa, it is likely to come from investment related activities (local and external), as well as normal community needs. 5. CONCLUSION We have four main conclusions a) The Goal of a land administration programme should be not just the completion of the first registration of rights, but also to ensure that a system is put in place to support transactions and maintenance of the registers so that legal and physical persons can effect transfer or disposal in a secure and transparent manner. b) We believe that low cost local registries, built on the TRUST model can complement registration programmes and ensure that the investment in registration is fully protected in rural areas c) We see greater community participation in the registration process, increasingly with the community taking the lead role, supported by tools and facilitators - the communities do it themselves. d) For sustainability to be achieved, there has to be a demand for land administration services In Africa there is pressure from large scale land investments and these must take place in a way that delivers the benefits of investment yet protects the underlying interests of communities and individuals. Experience elsewhere (notably in Eastern Europe) shows that once there is a critical mass of registration and an effective registry maintenance system able to record transactions, then a land market emerges which stimulates investment and allows people to mobilise land and property assets in support of economic development. This can include sales, effective forms of leasing, real estate development, improvement of land quality, agricultural investment. It is from this land mobility that so many of the positive influences will flow. First registration of rights by itself cannot support this. 10
6. REFERENCES Adlington, G, Tonchovska, R, 2012. ICT in support of good governance of tenure: lessons learned and good practice. 2012 World Bank Conference on Land and Poverty. The World Bank - Washington DC, 15 pages. African Union, 2010. Framework and guidelines on Land Policy in Africa, Joint Publication of African Union, African Development Bank, Economic Commission for Africa, 41 pages Baldwin, R., Dale, P., 1998. Lessons Learnt from the Emerging Land Markets in Central and Eastern Europe, FIG Working Week, Prague, 16 pages. Baldwin, R., Buckle. F., Edwards, F., English, C., Leckie, J., 2015. African Land Tenure, Where are we now?. 2015 World Bank Conference on Land and Poverty. The World Bank - Washington DC, 15 pages. Edwards, O.C., 2014. Delivering large scale land certification programmes: lessons learned from the Rwanda Land tenure Regularisation Programme. 2014 World Bank conference on Land and Poverty, 24 pages. Enemark, S, Bell, K.C., Lemmen, c., McLaren, R., 2014. Fit for Purpose Land Administration. Joint FIG/World Bank Publication. 39 pages. English, C., Edwards, O., 2012. Innovative approaches to land governance and programme management: contractors view. 2014 World Bank conference on Land and Poverty, 24 pages. Green, J.K. 1987. Evaluating the impact of consolidation of holdings, individualization of tenure, and registration of title: lessons from Kenya. Land Tenure Centre. University of Wisconsin-Madison. 41 pages. Leckie, J., Allebachew, M., Abegaz, G., 2016. Implementing the Land Investment For Transformation (LIFT) Programme in Ethiopia. Presented Paper, 2016 World Bank Conference on Land and Poverty. Lemmen, C., 2010. The Social Tenure Domain Model, A Pro-Poor Land Tool, FIG 20 pages. McLaren, R., 2011. Crowdsourcing support of land administration. RICS, 31 pages. Napier, M., Berrisford, S., Wanjuku.C., McGaffin, R., Royston, R., 2013. Trading Places Accessing Land in African Cities. Urban LandMark, 123 pages. Payne, G., Mitchell, L., Kozumbo, L., English, C., 2015. Legitimate land tenure and property rights: fostering compliance and development outcomes. Rapid Evidence Assessment, Evidence on Demand, DFID. 44 pages. UN FAO, 2012. Voluntary guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security. FAO. 40 pages. 11