During the Annual Conference hosted by the Knowledge Platform Security and Rule of Law (KPSRL), the LAND-at-scale knowledge management organised a session exploring how land registration might impact relations between local governments and the populations they are expected to serve. Land registration interventions today often follow a path of decentralisation in which local land offices are tasked with additional responsibilities, or new entities are being created. These local offices give local authorities an important role in land mapping, registration, administration and adjudication. Land registration is not usually viewed from the perspective of the social contract, but we think it is important to do so. On the one hand, land related services offer opportunities for strengthening the legitimacy of local governments. Land conflicts constitute a large share of cases in local and regional courts. Land registration by local land offices is considered an important tool to reduce land conflicts. On the other hand, problems with local government capacity or accountability can, and do, compromise land registration. Local bodies of alternative dispute resolution – addressing land conflict before, during and after land registration – have emerged to compensate for some of the failures of local governments. Whereas these ADR mechanisms lessen the burden on local courts, they also present a situation of legal pluralism that potentially undermines the authority of local government institutions. This would suggest that perhaps a good local social contract is a precondition for fair outcomes in land registration.

In this session, we reflected on a number of key questions in an interactive manner: does land registration work to strengthen local government accountability towards citizens? what would it take to produce such an outcome? what might be the role of alternative dispute resolution (ADR) in renegotiating the social contract?  We drew on ongoing experiences in Burundi, Uganda, and Rwanda presented by LAND-at-scale project partners. The session was structured around three statements. After a short introduction of the statement, and a presentation from one of the LAND-at-scale partners on the ground the audience was engaged through a vote and discussion.

Statement 1:

Land registration offers key opportunities to local governments to strengthen the local social contract

Presentation: In Burundi, land registration is being decentralized, engaging three different levels of government institutions. The district administration is in charge of land registration, which is operationalized by the local cadasters (SFCs). At the village level central actors are the commission de reconnaissance collinaire (CRC) which is, by law, responsible for land registration process; the Bashingantahe as customary institution involved in conflict mediation; and the Conseil de notables, a new body that is said to replace the Bashingantahe. Alexandra highlighted a number of challenges:

• ZOA is seen as the organization who drives the registration of land, rather than the district level government;
• Lack of capacity and tools at local administration level. This is combined with a loss of built capacities due to replacement and re-elections of local authorities;
• Conflicts with (individual) landowners, where state claims land as being “state land”;
• The role of the newly established Conseil de notables is uncertain;
• The communities are skeptical towards the reason behind land registration, particularly in peri-urban areas.

Building on previous interventions, ZOA has partnered with VNGi and local partners MiParec in particular to strengthen linkages with local government empowerment and conflict resolution. These earlier interventions have seen an improvement in women’s land rights, although much can still be increased.

Vote: agree – 9, disagree – 2

Discussion: Land registration offers economic and social opportunities for communities, but also has potential harmful effects on women or increased levels of violence. The net effect can thus be positive or negative, and who is to judge on that? The sustainability of land registration interventions are hampered by sustained corruption and is further threatened if the legal component is not addressed. Regarding the particular role of the local level of government, these are often mainly a puppet of a dominant central government. Thus, whereas most participants agree that there are opportunities for local government to strengthen the social contract, there is a high level of skepticism.

Statement 2:

Where local governments lack capacity and accountability, land registration produces serious risks for the local population

Presentation: In Uganda, land governance has been decentralized since the 1990s. A range of government actors at local level each have seen an increase in functions, but little efforts for capacity development. Furthermore, these bodies are staffed with political appointees, who change often and whose appointment is not transparent. The result is:  a system that is open to corruption; incapable of delivering services to communities; and high levels of distrust by these communities towards local government institutions.   

The products are as good as the process leading to the products. It is important to ensure a transparent and credible process that community trusts and this takes time building capacity of LG administration institutions and community engagement to ensure there is trust. In particular, risks of land registration in a situation of weak local governance: violence, politicizing of the process, exclusion of women and girls, increase in disputes, individualization of communal rights, transactions not registered, land use planning undoing the gains of land registration and corruption. To conclude: capacity development of land governance institutions is key and is a continuous process that includes mindset changes, with long-term outcomes. The process of registration determines the outcomes, it should be transparent and allow for sufficient time to be developed properly.

Vote: agree – 7, disagree – 1

Discussion: The disagreement stems from the question that, if we are all aware of the risks, are they worth taking? Land registration causes risks, but not doing it might cause even more risks. Land is a polarizing factor and lack of governance can create a vacuum that increases social fractures. Again, the process is fundamental.

The example of Nigeria was mentioned in the discussion, where government is legally allowed to take land, even if this is not registered. This leads to a high level of tenure insecurity, even/especially if land is registered.

A last remark on registration fees. This fee is low in the case of Uganda, but for many titles this still amounts to a considerable total. Tax is not necessarily bad, as it gives local government the means to deliver services.

Statement 3:

The creation of alternative dispute resolution mechanisms for land conflicts promotes authority struggles between government and traditional authorities

Presentation: In Rwanda several formal and informal institutions are involved in land dispute resolution, among which local leaders and the so-called Abunzi. These abunzi committees are elected by the community and play a mediation and adjudication role by enforcing customs and legal norms. Field research shows that they are trusted by the communities. Family councils play an important role as guarantor of family harmony. The Abunzi and family councils often collaborate in solving disputes, with family councils playing a role in the implementation of Abunzi decisions. Benefits of having both formal and informal dispute resolution mechanisms include decisions being made by community representatives whilst increasing the community awareness of their rights, an efficient use of resources and increasing access to justice for community members. Co-existence of multiple dispute resolution mechanisms also results in contradictions in decision making, a lack of coordination, possibility of forum shopping, and conflicts of interest. The challenges of informal dispute resolution are the difficulty of assessing their performance, the risk of gender discrimination, a lack of accountability, training and enforcement, and the risk of applying customs that are contrary to the law. Dr Masengo recommends: conduct awareness raising to inform people on the different mechanisms, a coordination mechanisms targeting both formal and informal mechanisms, insert ADR best practices in formal law, and strengthen the relationship between formal and informal mechanisms.

Vote: Agree – 3, disagree – 5

Discussion: there is some confusion over the word “create” in the statement. If new ADR mechanisms are created to deal with conflicts arising from land registration processes, those mechanisms are causing additional risks as they are not rooted in the community dispute resolution processes and not linked to formal systems. Existing informal mechanisms add value as they are cheaper and more efficient. It is crucial that these ADR systems are validated by government. Formal systems need to be able to enforce decisions taken in informal systems. This also applies to land documents  and the rights they carry.

Link to recording of the session on You Tube.

Speaker bio’s

Gemma van der Haar is a development sociologist, based at the Social Science Department of Wageningen University, who has worked on issues of land rights, land conflict, and governance in different contexts in Latin America and Africa. She has worked on issues of localised land registration in the Great Lakes Region in Africa. The most recent project is called Securing tenure, sustaining peace? with case studies in Burundi and DRC.

Alexandra Emerusenge – ‘t Lam is a Sector Specialist Land Rights with ZOA. She has worked on several interventions in Burundi over a period of seven years. Currently, she is the coordinator for ZOA in the Amahoro@scale project, working in partnership with VNGi and MiParec on the improvement of land governance in Makamba province.

Simon-Peter is a Land Tenure Advisor with Global Land Tool Network and UN-Habitat, coordinating the network’s land governance work in Uganda. Simon has over 10 years’ experience as Land Tenure Specialist and has a wealth of skills in land administration, property taxation and valuation from both private and government practices in Uganda. He has worked on the global land tenure agenda through country-level interventions for FAO, GIZ and UN-Habitat/GLTN.

Dr. Fidele Masengo is National Field Programme Manager leading the Land Conflict Resolution Project in Rwanda (IDLO-RVO project). He is an Advocate, Arbitrator, and Certified Mediator. Former Secretary General of the Kigali International Arbitration Center, former Deputy Chief of Party for a USAID-Chemonics Rwanda Land Project, former Director of Administration of the Justice at Rwanda Ministry of Justice. He teaches law at various universities in Rwanda and East Africa.