In a strict sense, there is no express right to land under international human rights law. Yet, without land, several human rights would be in jeopardy. The realisation of rights related to food, water, housing, physical and mental health, as well as a clean, healthy, and sustainable environment have a direct land dimension. As a result, there is increasing acknowledgement  that land is a cross-cutting issue with direct implications on the enjoyment of several human rights. At the same time, the UN Human Rights Council and anti-corruption organisations like Transparency International have highlighted the negative impacts that corruption has on people's ability to enjoy their fundamental human rights, including those linked to land. Therefore, it can be argued that the idea that land is a human right, and that corruption is a roadblock to the realization of land rights has contributed to the growing need for transparent and accountable land governance. This observation is due to the fact that most land governance interventions in the past have been focused on first land registration, digitisation, strengthening the capacity of institutions that provide land services, and policy reform. However, current global developments in the land and human rights spheres show a progressive shift to focus on previously ‘unpopular’ subjects like corruption. The most recent milestone in this regard was the adoption of a General Comment on land and economic, social, and cultural rights (E/C.12/GC/26) by the United Nations Committee on Economic, Social, and Cultural Rights (UN CESCR) in December 2022.

E/C.12/GC/26 stems from several land-related provisions of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) like rights on food security, housing, cultural life, and self-determination. In its introduction, the General Comment identifies a few of the contemporary land governance issues that impede land's capacity to facilitate the realization of other rights. These include, among other things, the growing competition for land brought about by fast urbanization and population growth and concerns about land degradation, conservation, and climate change. It also acknowledges the efforts made to address a range of issues about the enjoyment of land rights through the adoption of numerous international instruments related to the right to food, the governance of tenure, and responsible agricultural investments, among others (paragraphs 1-4). Regarding land, General Comment 26 acknowledges the importance of land in achieving other economic, social, and cultural rights (paragraphs 5-11). Furthermore, it restates State parties' responsibilities under the ICESCR, which are divided into four categories. However, for this blog, the focus will be on the second obligation: participation, consultation, and transparency.

Participation, consultation, and transparency

Concerning transparency, GC 26 urges full consultation and meaningful engagement of people in decision-making processes affecting their land rights (paragraph 20). It implores member states to ensure equal access to information for all stakeholders in decision-making processes. It also demands states to consult on land-related decisions, including “land registration, land administration, and land transfers, as well as before evictions from land." The decision-making processes should be "widely publicised," and if Indigenous People are involved, the principles of free, prior, and informed consent should be followed (paragraph 21). While this is not necessarily a novel proposition, it offers more validation and adds more weight to the pre-existing frameworks that implicitly provide for transparency and accountability in the land sector.

Corruption as a land rights concern

General Comment 26 identifies corruption as one of the specific concerns relevant to the implementation of the Covenant in land-related circumstances. The widespread occurrence of corruption in the land administration is acknowledged, particularly in the processes of land registration, demarcation, leasing, land use planning, and compulsory land acquisition (paragraph 52). To this end, General Comment 26 requires States to set up "proper accountability mechanisms to prevent corruption" in the land sector. To improve the delivery of land services, the General Comment demands States to regularly monitor and evaluate their land laws and policies to ensure their effectiveness. It further calls upon the relevant land governance institutions including the judiciary to transparently engage with civil society and the wider public to tackle corruption during decision-making.

Implementation mechanisms

In paragraphs 59-61 of the General Comment, States are specifically required to guarantee that all citizens have access to information pertinent to the exercise of their land rights. States are further required to keep a close eye on how land laws and policies are being applied and how this affects people's ability to exercise their rights. To protect their land rights, States are required by GC 26 to establish impartial, independent, efficient, and easily accessible procedures for resolving land disputes for all citizens. States are further directed to enhance the capabilities of their judicial and administrative systems to guarantee "access to timely, affordable, and effective means of resolving disputes over tenure rights," especially in remote regions.

Significance of GC to anti-corruption efforts in the land sector

Broadly, General Comments offer authoritative recommendations on specific areas of the Treaty they are overseeing. As such, General Comment 26 gives proponents of transparent and accountable land governance the much-needed legitimacy to further their cause. This is extremely important because discussing land corruption was nearly a  taboo for a significant period of time in the past.

While the subject of land corruption is still quite delicate, there is a growing acknowledgment of the problem in various global, regional, and even national policy papers. In 2023, the African Union unveiled its Land Governance Strategy, which specifically acknowledges corruption as a land governance issue on the continent. Countries like Uganda and Kenya have moved forward to incorporate anti-corruption clauses in their draft national land policies, currently undergoing review. This marks a significant shift from the past when policies avoided including such clauses. General Comment 26 therefore lends more credence to such pursuits.

In the same vein, there has been an increase in efforts by civil society organizations to promote transparent land governance, with the development of programs aimed at tackling corruption in the land sector. Of recent, initiatives like Transparency International's work on Land and Corruption in Africa have shed light on corruption in land governance. The International Land Coalition (ILC) Africa also has a commitment on transparent and accessible inform in its Strategic Plan in which corruption-related work is housed at the Coalition. Therefore, the adoption of General Comment 26 validates such initiatives and will inspire future projects in this regard. In the long run, this will contribute to addressing the vice of corruption in the land sector.

Like all other General Comments, E/C.12/GC/26 is not a legally binding instrument. However, it can be a persuasive authority that can be used in domestic and regional courts to litigate land corruption cases. Additionally, General Comment 26 explains in detail the legal nature of the State obligations related to addressing land corruption. This makes it  is an important tool that can be leveraged on by States and civil society  to address land corruption. Given its  detailed explanation of issues, the General Comment, one can argue, has inherently prescribed some kind of criteria by which can be used to assess how States are fulfilling their land-related obligations including those concerning corruption.. More significantly, General Comment 26 reinforces the notion that addressing land corruption is essential to the fulfilment of human rights and in this context, economic, social, and cultural rights.

Through the treaty-based monitoring mechanism of the UN, this General Comment  offers a unique opportunity for anti-corruption advocates, especially civil society to provide the facts and information that treaty bodies need to carry out their work since States are frequently reluctant to do so. This can be done by participating in CESCR sessions using the applicable guidelines. 

In conclusion, this general comment has reaffirmed the importance of tackling land corruption especially in the context of the enjoyment of economic, social and cultural rights. It has further given advocates credible and authoritative guidance on the nature and extent of State obligations in the context of land governance broadly and established a possible benchmark for monitoring anti-corruption measures in the land sector by and in States. The General Comment also offers opportunity to UN member states to reform their land policies and laws to address hitherto contentious land issues like land corruption. Consequently, addressing land corruption will go a long in supporting the realisation of various human rights and the attainment of several development aspirations including the sustainable development goals.

The author is the Land Governance Thematic Specialist at Transparency International