Land and Corruption in Africa in 3 Topics | Page 2 | Land Portal | Securing Land Rights Through Open Data
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The Land Portal is a Foundation registered in the Netherlands in 2014.

The vision of the Portal is to improve land governance to benefit those with the most insecure land rights and the greatest vulnerability to landlessness through information and knowledge sharing.

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About

One global movement sharing one vision: a world in which government, business, civil society and the daily lives of people are free of corruption.

In 1993, a few individuals decided to take a stance against corruption and created Transparency International. Now present in more than 100 countries, the movement works relentlessly to stir the world’s collective conscience and bring about change. Much remains to be done to stop corruption, but much has also been achieved, including:

The Land Policy Initiative is a joint programme of the tripartite consortium consisting of the African Union Commission (AUC), the African Development Bank (AfDB) and United Nations Economic Commission for Africa (ECA). Its purpose is to enable the use of  land to lend impetus to the process of African development. The programme is governed by a Steering Committee that meets periodically, while a joint secretariat implements day to day activities. The secretariat is assisted by an African Taskforce on Land. 

Land corruption in AfricaDownload the Report of the discussion.

  • Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights: Case of Kenya and Uganda
  • Analysis of Alternative Dispute Resolution systems in addressing Land Corruption: Case of Kenya and Ghana
  • The Role of Traditional Leaders in Customary Land Administration: Case of Ghana and Zambia

Corruption in land governance has gained growing attention in recent years.  National Chapters (NCs) of Transparency International (TI), under the project Land & Corruption in Africa (LCA) work to increase awareness and acknowledgement of land corruption in the national land policy and governance discourse.  TI NCs identified three subjects on land governance that directly affect local communities. The subjects are described are not limited to the countries’ cases, so the contribution collected might contribute to improve the land governance across Africa.

Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights

In Kenya, the practice of forced evictions is a growing national problem that threatens lives and livelihoods especially of the most vulnerable and marginalized members of the society including the urban poor, slum dwellers, persons living with disability, minorities and indigenous groups, women, children and the elderly. Forced evictions have been carried out under the pretext of forest conservation, development projects, and slum upgrading projects. The massive eviction of residents of the Kibera informal settlement in southwest Nairobi, Kenya (one of the poorest communities of Kenya) to pave way for road construction in July 2018 left more than 30,000 people homeless and rendered 2,000 children without schooling.

The situation is similar in Uganda, where the significance of land cannot be gainsaid. The emerging development opportunities by the government characterised by discovery of oil and gas reserves, e - revolution, globalization and economic integration, among others[1] entail projects that require huge amounts of land which the government has and is still acquiring.  This makes land highly attractive to both investors and land speculators. The unprecedented new interest, coupled with the relative ease of persons with financial resources to easily obtain a land title or rights over land, has led to a scramble for land resulting into increased land grabbing, unlawful illegal evictions, fraudulent and or irregularities in land acquisition processes, unfair compensation, leading to loss of livelihoods, family breakdown, loss of inheritance rights, opportunity for corruption of public officials and abuse of community rights. This has greatly eroded the public confidence in land administration.

Analysis of Alternative Dispute Resolution systems in addressing Land Corruption

The Constitution of Kenya 2010 recognises access to justice for all as a fundamental right that all persons are entitled to and obliges the State to not only respect and protect, but also promote its realization in the fullest sense.  Notably, the law identifies access to justice as a core element of achieving social justice in the country. To enhance access to justice, the government enacted the Legal Aid Act 2016  to facilitate the provision of legal aid to the poor. Besides the Act, there also exists the National Action Plan on Legal Aid (2017-2022)  whose main underlying spirit is ‘Towards access to justice for all in Kenya.’ This provides an opportunity to seek recourse to land dispute cases, and more specifically, land corruption related cases. It is instructive to note that the Constitution now recognises and promotes the use of Alternative Dispute Resolution in settling disputes, land being one of them. There is a need to strengthen the capacity of various institutions of governance to deal with the pervasive problem of corruption, to enhance public confidence in their ability to play their part in combating the vice.

In Ghana, access to justice is enshrined in various provisions of the 1992 Constitution. Article 12 demands from all absolute respect to uphold the fundamental human rights and freedoms as enshrined in the supreme law of the land. A major obstacle in accessing justice in Ghana is the lack of an efficient and fully-functional court system, with few poorly resourced courts to provide efficient services to all. Moreover, there are too many protracted land cases in courts where it takes between three to five years minimum and between eight to fifteen years maximum, to successfully resolve land disputes in court. The situation has also been characterized by high risks of corruption, abuse of human rights and justice. Consequently, most Ghanaians prefer using approved and unapproved alternative means of dispute resolution mechanisms rather than the formal court systems.

The Role of Traditional Leaders in Customary Land Administration

In Ghana, corruption in customary land transactions is found to be most likely to occur at the instances when land is allocated by traditional leaders and registered by government institutions. Moreover, private investors have a considerable effect on increasing land prices and the amounts of symbolic drinks and kola nut payments. This has a negative impact on community members by limiting their access to land and title registration services with chiefs, which often results in conflict. Nonetheless, investors are also found to be at a disadvantage in land allocation processes, due to the vagueness and uncertainty of the dual land system.

In Zambia, the overlap of authority in land institutions leaves the system vulnerable to corruption, especially during the conversion process of customary land to statutory leasehold title. Multiple institutions governing this conversion process lack clear guidelines, and authority figures such as chiefs may misuse their discretionary power for personal gain. The lack of standardised processes in customary land administration have overall created a dynamism within which community members have limited access to information on how to secure their land rights. Investors are found to further complicate this situation as the demand for land and a lack of protection of customary rights have resulted in the displacement of customary landholders across the country.

 

Objectives

The specific objectives of these dialogues are to:

  • Collect recommendations in improving the state of affairs, and engaging in a gender responsive approach towards managing forced evictions
  • Examine the legal, institutional reforms and progress made towards making access to justice for all a reality
  • Collect recommendations to better secure customary land rights within a dual land system particularly in the context of the rising pressure on land brought about by the arrival of investors.

Dialogue questions

 

  1. Forced Evictions as a form of Land Corruption and its Impact on Women’s Land Rights: Case of Kenya and Uganda
    1. How do you strike a balance between development for common good (public interest) and forced evictions?
    2. How do forced evictions specifically affect women land rights?
    3. What measures/safeguards exist in Kenya and Uganda for protecting citizens against forced evictions? In your opinion, do you think these measures are adequate?
    4. What are your recommendations towards addressing the impact of forced evictions on women in Kenya and Uganda?

 

  1. Analysis of Alternative Dispute Resolution (ADR) systems in addressing Land Corruption: Case of Kenya and Ghana
    1. How effective are Alternative Dispute Resolution (ADR) mechanisms in addressing Land Corruption cases?
    2. What challenges exist in the implementation of alternative dispute resolution (ADR) in resolving land corruption cases in Kenya and Ghana?
    3. How do we guarantee access to justice for vulnerable groups affected by land corruption?
    4. Do you think there is a conflict between the formal and traditional justice systems on land? If so, how can the conflict be addressed?

 

  1. The Role of Traditional Leaders in Customary Land Administration: Case of Ghana and Zambia
    1. To what extent the customary land administration is transparent in Ghana and Zambia?
    2. What are the challenges in a context where the land system is governed by both customary and state authorities?
    3. What are the corruption risks in the allocation and registration/conversion of customary land to investors?
    4. Implementing a legal dispute resolution mechanism in the customary land administration would it help to improve the management of customary land?
    5. Could sanctions against chiefs when they deliberately violate the land use could make a difference?

 

Comments

  1. Civic actors and societies need to be vigilant and involved in fighting injustices
  2. Reform our judicial systems to be affordable, faster and just
  3. Implementation of the Legal Aid Act to support legal assistance initiatives to vulnerable groups
  4. Reforms on anti-corruption laws and systems to deter and punish corrupt persons

Understanding the root causes of land disputes offers better opportunities and room for the use of ADRs to thrive without major objections in favour of the court systems. In this case the majority who are the poor would be denied justice. For instance, it is evident that access to justice in Kenya especially for the poor and marginalized groups of persons is still a mirage. This is due to the fact that access to justice is not just about presence of formal courts in a country but also entails the opening up of those formal systems and legal structures to the disadvantaged groups in society, removal of legal, financial and social barriers such as language, lack of knowledge of legal rights and intimidation by the law and legal institutions. Arguably, this has not yet been achieved in our country and the result is a poor people who are often condemned to a life of misery without any viable recourse to alleviate the injustices (D. K. Muigua, 2015).

We guarantee justice by providing support to informal or traditional structures: In addition to the formal justice system, customary justice structures can protect the rights of people. Existing legal services should be designed so that they are approachable and accessible for all types of vulnerable populations.

There is need to support and implement the Legal Aid Act 2016 and empower the Legal Aid Service to ensure every Kenyan can attain the services of the Counsel. Sensitization by the State should proceed. The National Land Commission should also be empowered to address historical injustices which to date are pending address. 

With overlapping and sometimes opposing customary and statutory legal frameworks should elements of informal justice be incorporated into formal state processes?

Yes there should be a blend of Customary and statutory legal framework into formal state processes. The court connected ADR mechanism which fuses the two systems, through the referral of cases for arbitration implemented in the courts of Ghana have been successful.

A good look at the customary and statutory should help us resolve any overlapping and opposing frameworks.

Traditional systems may not meet modern justice thresholds. They may have aspects of discrimination against women and youth. Formal justice systems also have their shortcomings such as cost, time and perceived hierarchy to informal systems.  Both systems view each other warily. However, if properly reformed, they can co-exist parallelly and complementarily.

In all these issue lets us not forget that whilst traditional governance structures have broken
down, they have not been forgotten. They have been abused to fit in with the imposed
Colonial governance structure. Most tribal communities in Kenya had very similar
governance structures. This is why they were easily manipulated by the British in their divide
and rule policy, continued by our governments ever since independence. Incorporating tribal
( customary) legal frameworks into the current constitution is not hard and I believe would
make a difference. The key word here though is literacy. If the citizens are not aware/or do
not know their responsibilities, then all the laws in the world will not stop
manipulation/corruption.

There is indeed a conflict between these two systems. This can be resolved by institutionalising informal systems, including ADR, as a critical component of access to justice.   Alternative dispute resolution must be seen as an integral part of any justice system. 

There is a belief that the formal process is superior and therefore, any process that proceeds informally is inferior. This has to be cured.

Recognizing the role of informal systems and institutionalizing them. Specifically on land - a sensitive issue - some people may feel more safe and will trust the judgement of someone who they know. An example - a village elder knows the history of the area they live in and to make it better they also live in the same area, experiencing the same issues/ challanges as the people raising the land dispute issues. The village elder in this case will be more trusted in his decision by those affected as the bias factor is limited and their understanding of the matter considered greater.

Most of the informal settlements lie on land that belongs to individuals ( e.g Mukuru), the government (Kibera) or derelict land - meaning that the residents lack security of tenure.  Also, these residents lack legal advice on dealing with issues that affect them with regards to land matters as they cannot afford legal services and there is a deficit of pro bono legal services to these people. 

There also is a general lack of and understanding of civic education in these communities.  

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