On behalf of the Land and Corruption in Africa project of Transparency International, it is my pleasure to welcome you at this online dialogue on Land Corruption in Africa.
Land corruption is a key issue for Transparency International and its national chapters around the world. Whether it’s an opaque deal between private investors and local authorities, citizens having to pay bribes during land administration processes, unaccountable urban planning, or customary laws that deny women their land rights, land corruption hits poor and marginalised men and women hardest.

The first week of this discussion will be dedicated to the analysis of the role of traditional leaders and their relationship to investors and public authorities in land in Ghana and Zambia. What are the recommendations that contribute to establish a more transparent customary land administration system particularly in the context of the rising pressure on land brought about by the arrival of investors.

The second week of this discussion will address the issue of forced evictions as a form of land corruption and its impact on women’s land rights in Kenya and Uganda. What are forced evictions? Are they legal? Sadly, forced evictions happen in the watchful eyes of the government who in most cases justify the evictions in the name of ‘development’ for the general public good.

The third and last week will be dedicated to the analysis of alternative dispute resolution systems in addressing land corruption cases in Kenya and Ghana. The main question has been whether justice in land cases can be made more accessible by encouraging a more collaborative approach between formal and informal justice systems.

Two schools of thought exist on the nature of transparency of customary land administration in Zambia. From the traditional authority, they claim that through their God given right to be custodian of land they have a consultative system made up of village headmen,(indunas) which ensure that all land administration issues are transparent. From the legal and regulatory framework there is a requirement through Circular No. 1 of 1985 any land transaction which requires conversion into Stateland must have a signed consent by the Chief. However, such consent may not necessarily have been vetted by the village community and could have been obtained in corruptly.

This is somewhat transparent depending on the level. At the level of chiefdoms – between local communities, headmen and chiefs – one can find some level of transparency due the nature of landholding. Land is often held in clans and tribes and is shaped by clear lines on availability, access and utilisation which are built overtime.

At a higher level such as when dealing with investors – domestic or foreign – there are some noticeable gaps. Reports exist in different parts of Zambia where community subjects have complained their traditional leaders gave away their land without consultations and consent.

• Some of these relate to the hybrid of authorities and lack of clarity on boundaries. In Zambia, traditional leaders do not have the mandate to parcel out tracks of land over 250 ha – beyond which the authority of the Minister steps in.
• Given that government systems get involved at this level, reports have emerged on how state officials get intricately involved in land allocation thereby creating bureaucratic and legal confusion.

Overall, a surge in domestic and foreign land investments heighten overlaps of authority in land institutions, raising risks of corruption such as in identification and conversion process of customary land to statutory leasehold title. Recent research¹ shows this has been compounded by poor coordination and collaboration between and among state institutions which is further shaped by unclear guidelines and authority in customary land administration.

¹Manda, S., Dougill, A., and Tallontire, A. (2019). Large-scale Land Acquisitions and Institutions: Patterns, Influence and Barriers in Zambia. Geographical Journal, Vol. 2019: Pages 1 – 15: DOI:10.1111/geoj.12291.

Focusing my contribution on Zambia, and rather than answering some questions myself, I would like to make some suggestions in order to obtain (more) clarity on the issues raised.

The information on (the transparency of) customary land administration in Zambia is ambiguous, at least if one consults the, to my knowledge, main and most comprehensive source: the application of the World Bank’s Land Governance Assessment Framework (LGAF) to the situation in the country[1]. On the one hand, some highly critical remarks are made regarding the patriarchal nature of customary land acquisition, the unclear definition of customary land rights and chiefs that do not consult their communities, and “ (…) the unwritten nature of customary law or practices used to administer customary tenure, leaves room for manipulation and corruption.” These statements are very much at odds with the “A” score (i.e. the highest) on indicator 6.1.2.a: “Non-documentary evidence is effectively used to help establish customary rights.” In other words, it is not that easy to answer the question to what extent the customary land administration is transparent in Zambia. It would be pertinent to invite the LGAF author to participate in the debate and shed some light on this question.

Regarding the challenges of the ‘cohabitation’ of customary and statutory tenure, it is probable, in Zambia and anywhere else, that there will be problems when two competing administration systems lay a claim on the same portion of land. These problems have been discussed at length in the Land Portal’s debate on Customary Land Recognition: Zambian Approach to Documentation and Administration, where mention was made of the possibility of “passing laws that elevate existing customary land rights up into nations' formal legal frameworks, thereby making customary land rights equal to documented land claims”, a step suggested by Rachael Knight in her influential study on the statutory recognition of customary land rights. I consider the idea very valuable, precisely because of the aforementioned overlapping claims and the corruption risks that they entail, particularly in a country where corruption in general is at a high level according to the Corruption Perception Index (35/100), and probably pervades all areas of governance. I would like to know what Ms Knight has to say about the specific case of Zambia and am, therefore, suggesting to ask her to participate in the debate.

And finally, let’s try to avoid turning the debate into an exchange of opinions about the ultimate stakeholders but without giving them a voice. Farmers are by no means the only social category that has a stake in land, but they are one of the most important ones, in any part of Africa. The Zambia National Farmers’ Union (ZNFU) has on some occasions intervened in the land debate in their country, and it would be of much added value to take into account their views (and/or or those of the Zambia Land Alliance, of which ZNFU is a member) on the relationship between customary land rights, corruption and tenure security for their constituency. Nothing about them without them!

In conclusion, rather than pretending to be able to write a full-fledged essay on customary land rights and corruption in Zambia, I prefer to try to advance the debate by making suggestions for other sources of information: Mulolwa, Knight, ZNFU.

Emmanue Tembo makes a very interesting and valid point when he points to blurred lines on conversion of cutomary land to state land where consent by a Chief is required. In extension, I can argue that whilst inclusion of traditional authorities in land conversion is crucial and that it requires transparency in so far as local voices are concerned, the wider socio-political and economic processes that bear on Chiefs must be accounted for.  

A warm greeting to you all, it is a delight for me to return to the Land portal and add my voice to how customary land is managed in my country particularly Luapula province. Every time I engage in advocacy work on land I ask my self if we as Zambian know who land belongs to. This is because our constitution states that all natural resources (land inclusive) is vested in the president who holds it on behalf of the Zambian people. On the other hand traditional leaders who are well recognized by law as custodians of customary land perceive this land to be theirs without providing for holding on behalf of the people who have been born and raised in that chiefdom.

Whilst the state draws it's powers of land allienation from the law,  traditional leaders also have powers to grant or deny convention of customary land to state land.

Going back to my question, I feel Zambia is struggling with corruption issues on Land because both the state and traditional leaders do not acknowledge the fact that the Land they are managing belongs to the Zambian people who they are supposed to serve. Today Zambia has no land policy because the fight was over the views of the state versus traditional leaders without consideration of the Zambian people's view. 

Moving forward women in Zambia will only enjoy their right to land once the duty bearers understand who the real power holders on land are. Unless the power is transferred from the current holders to the people customary land in Zambia is under serious threat of diminishing. 

The management of land in Zambia is divided into two sectors, customary and state administration systems, though the government has generally a say on almost all land administration and management (except Western Province were the land management system is entirely under the sole discretion of the Litunga).

Land under customary systems is managed and overseen by the traditional leaders, styled as Chiefs, with their under-lords or administrative assistants called Headpersons looking on smaller portions of the Chief’s entire chiefdom. Needless to say, Chiefs in their day to day administration are assisted by a Council of Elders called by different names from one culture to the other, it is common for them to be referred to as Nduna in the Eastern region and as Chilolo in the Northern parts of the country.

Chiefs derive their authority to exercise power over land principally from the Constitution Chapter One of the Laws of Zambia, which in most jurisdictions, is the supreme law. Part XII of the Zambian Constitution in Article 165 sets out the institution of Chieftaincy and establishes traditional institutions guaranteeing them exercise of culture, customs and traditions, additionally, subsequent to the provisions of Article 166, the Chieftaincy has power to hold property in trust for its subjects. In this context, land is property, as Part XX, Article defines Property as “as a vested or contingent right to, or interest in, or arising from …land, permanent fixtures on, or improvements to, land”.

Additionally, the Lands Act Chapter 185 of the Laws of Zambia, which is the principal Act on the administration of land in Zambia, in its preamble identifies existence of customary tenure, and provides for its statutory recognition, it further in Section fortifies that.  Other pieces of legislation like the Chief Act Chapter 287 equally recognizes and fortifies the authority of chiefs in managing customary land. Furthermore, the Draft Land Policy published in by the GRZ in December 2017 also ascribes to this role by traditional leaders.

From the foregoing, it can be noted that the administration of customary land is rightfully placed in the arm bit of traditional leaders.

Regarding Transparency of Customary Land Administration in Zambia, I would love to approach transparency in two fronts; firstly, in having clear procedures to access land, and secondly in having no illegalities concerned.

1. Having clear procedures:

• The alienation of customary land in Zambia in the main, is transparent as it is devoid of bureaucracy and hierarchical systems, as is the case with state land management.
• This transparency can be attached to none or limited involvement of chiefs themselves in granting occupancy rights to customary land but by delegation of these powers to their headpersons who over see the day to day alienation and administration of land.
• Further, everybody knows the steps that are to be taken if one wants to occupy land, namely, approach the headperson where you want occupancy rights and get registered in the village register after paying the necessary homage.
• In certain chiefdoms, like the Ndake Chiefdom of Nyimba District in Eastern Province, the Chieftaincy had as far back as 2011, published a Step-by-Step Guide in the procedure of getting land in that chiefdom, which basically are the steps outlined above.
• The fact that a person gets land from the first contact (headman) cuts down the procedure and hierarchy, creating a quick and efficient land administration system, the Chief then endorses the consent given by the headperson in granting rights of occupancy to that person

2. Lack of Illegality in Traditional Land Administration Systems

• In a customary system, homage is paid at every level of the traditional tier, these are privileges due to every lord or sovereign world over as a courtesy or token of recognising that lordship
• In Zambian traditional systems, such tokens could be chickens or other articles of food such as cooking oil.  It is such gifts that protagonists argue as illegal and underhand and corrupt methods of land administration in the customary system.
• This author vehemently argues that such tokens, cannot amount to corruption, as it is a long-established tradition that when visiting a sovereign, you carry tokens to them.  Additionally that each person knows the standard and value of this token, though unwritten but respected universally across that culture, culminates into its intrinsic acceptability by that culture, and cannot be questioned by another person outside that culture with different moral and cultural background and typified as a corrupt practice, hence rendering a whole customary system as lacking transparency. However this argument does not intend to rule out any possibilities of bad elements in the customary system, sporadic cases abound where traditional leaders have abused this trust.

While the Barotseland Agreement was very specific on the matter of land:

'In particular, the Litunga of Barotseland and his Council shall continue to have the powers hitherto enjoyed by them in respect of land matters under customary law and practice; the courts at present known as the Barotse Native Courts shall have original jurisdiction (to the exclusion of any other court in the Republic of Zambia) in respect of matters concerning rights or interest in land in Barotseland. Provided that nothing in this paragraph shall be construed as limiting the jurisdiction and powers of the High Court of the Republic of Zambia about writs or orders of the kind at present known as prerogative of writs or orders'. [i]

The Western Province (Land and Miscellaneous Provisions) Act No 47 of 1970, removed the Litunga’s powers over land, wildlife and natural resources and vested them in the President, all land in the Western Province being ‘Hereby vested in the President as a Reserve within the meaning of and under the Zambia (State Lands and Reserve) Orders 1928 to 1964’. 

[i] “THE BAROTSELAND AGREEMENT 1964.” Barotseland.info. 1 May 1964. Web. 26 Mar. 2017. http://www.barotseland.info/Agreement1964.html

Corruption appears to occur most in the aspects of customary land transactions (and registration). This is no more a surprising issue. Customary land registration processes are still time-consuming. They generally remain poorly documented. Transactional activities related to them remain hooded in non-transparent measures. Maybe we could start thinking of using applications and approaches that are corruption proof. This was what we had thought that technology-driven measures (using digitization) would have stopped or at least reduced, but it seems not to have been the case.

Blockchain provides a more transparency focused tool for customary land administration. Using Blockchain will involve the creation (management or administration) of distributed land information databases for peer-to-peer transactions, usually shared between the nodes of a network. The implication is that a central system will record land transactions in real-time and transactions are transparent to all in the system. As Blockchain is emerging, it is worthwhile to use it in the land administration sector to enable transparency, and so reduce corruption.

In Ghana, for instance, Benben is already introducing Blockchain applications in aspects of real estate and related land sector activities. Blockchain is necessary for the customary land administration sector because it has the advantage of ensuring "transparency" (which is the primary cure or exposure of transactional corruption).

Customary Land Administration can be divided into Stool Lands and Family Lands. The lack of transparency can be traced to the absence of candour in respect of the size of land that had been granted and how much is realised from the sale/disposition of the land. The other critical issue is multiple sales by landowners. Lack of transparency could also be traced to the deliberate instigation of conflict by principal members of the same family or between allodial owners, stools and family heads in order to deprive a purchaser for value from enjoying his acquired interest in the parcel in dispute.

Official but outdated statistics suggest that 6% of Zambia’s land is state land and the remaining 94% is customary land.  The existence of a dual land tenure system presents several challenges for land administration. These challenges relate to the following:

• An incomplete legal cadastre - Current land registration law is limited to state land while customary land is not subject to the land registration system.
• An incomplete fiscal cadastre - While state land is subject to land rents and taxes, there are rents or taxes levied on customary land.
• A differentiated system - With statutory tenure having well defined boundaries and superior rights than customary tenure. Fixed boundary system, registration of title, collateralization are all exclusive to statutory tenure. While customary tenure has general boundaries, rights limited to use and occupation with no title, cannot be used as collateral.
• Lack of clarity and overlapping rights and mandates - which can sometimes be difficult to disentangle in instances where state developmental interests are occurring on customary land e.g. Game Reserves, Forests Reserves, Mining interests, establishment of new districts or extensions to existing districts which have to occur in customary land.
• One way conversion - Currently land can only convert from customary to state land. There are no provisions to give land back to customary authorities even in instance in which the land has not been used for the purpose for which it was converted.

• There are fewer such incidences in Zambia, as mostly, wherever a government institution exists, it automatically becomes state land, and changes tenure. However instances exist where this is not clear as documentation may be missing or lacking to verify it.  In such instances the foremost challenge is encroachment.
• Encroachment leads to squatter communities which in turn leads to unplanned settlements and attendant urban planning challenges
• However, in terms of land Administration, there always is a pull between the traditional leaders and the state. Current situation between Chieftainess Nkhomesya Mukamambo II of the Soli people over the Chikupi Community in Kafue District and the Mikango Barracks land issue in Lusaka District.
• This challenge arises from lack of a clearly outlined tenure conversion system and verifiable and well-known and defined boundaries.
• There seems to be no, or less readily available literature on this, but these experiences are shared from the author’s own over eight years of experiences handling and resolving these matters, though documented, but not in an academic fashion
• Other cases involve passing of by-laws by local municipal or Local government that proscribe geographical limitations for expansion of township boundaries, without taking into consideration the customary communities that will be swallowed within that circumference.

Very well said Andrew. In your words: ".......traditional authorities, the Commissioner of Lands and the Local Councils are the decision points in the land acquisition process where corruption is likely to happen the most." Is there a tacit assumption here that sanctions be considered for all actors across all decision points as opposed to a somewhat exclusive focus on chiefs? Will this enable Zambia draw out potential culprits of corrumption in customary land administration? 

In some regions in Ghana such as parts of the Brong Ahafo, Eastern, Northern and Upper Region and in some cases in the Greater Accra Region, the lands are vested in the State. This is where administrative corruption or lack of transparency comes in. Under what moral or legal grounds would the state actors like Divestiture Implementation Committee(DIC) & Land Commission(LC) divest several thousands of vested lands to private individuals/companies when the state has not paid promptly and adequate compensation to the owners.

Why would the Military in conjunction with the State Land agencies, knowingly encroach on parts of stool/family lands adjourning acquired lands and use them as buffer zones to the detriment of the individual owners?

On the part of customary authorities, even though Article 36(8) of the 1992 Constitution clearly states under the Economic Objectives of the Directive Principle of State Policy that the State shall recognise that ownership and possession of land carry a social obligation to serve the larger community and that managers of public, stool, skin and family lands are fiduciaries, the state actors in most cases connive with some of the heads of families and chiefs to deprive the people of their lands and livelihood without accounting for them.

As we discuss land issues, it is very important to be reminded of the biblical/African view of land management. Are you the E. Mutale who published the article in which was presented a Biblical View of Land Policy, views in close accord with those of indigenous Africa? Contained in it are eight land management principles (ECCLESIA):[1]

1. Equitable, Effective and Efficient - Fairness and justice should be characteristics of the land allocation system. Land management must be capable of producing desired results at a minimum cost to the public and the environment.

2. Community Origins and interest - A land management system must reflect the value systems and interests of the people it serves and not be an alien imposition.

3. Cheapness and Completeness - Original grants of land should be cheap enough to be afforded by all. Failure to which means-tested selective subsidies should be considered to enable the poorest of the poor in society to access land. 

4. Leasehold - There is a loose coincidence of thought on the ownership of land between the biblical view and the African view. They both acknowledge that absolute ownership of the land does not vest in the individual. To the one, it vests in God, to the other, in the community. The leasehold principle complements the equity principle by providing potential opportunities for redistribution.

5. Exclusive use-rights - The principle of private use-rights is widely practised in Zambia, more so in urban areas. As for rural areas, families and individuals tend to have exclusive use-rights to their fields.

6. Security of Tenure - A clear definition of boundaries, state guarantees, a system of registration, and an independent and accessible legal system are essential for securing use-rights

7. The Intrinsic value of land - While accepting the classical economic concept of the use and exchange value of the land, land management must be extended to embrace the intrinsic value of land. Land should not be valued only in relation to its use and exchange value, but also for its own sake.

8. Accessibility to all - Land should be made available to all. Mechanisms need to be worked out on who qualifies, where they qualify, when they qualify and how they should be enabled to access the land. Ensure that people do not lose their only land through being forcefully dispossessed or distress sales, or if they do, they are enabled to redeem their land.

I consider this a very important article; No. 6 says it all regarding security of tenure – for this is what it truly is all about, that and the protection of Mother Earth.

On 12 May 2017, Hilal Ever, the UN Special Rapporteur On the Right to Food weighed in with the following: [ii]

I strongly encourage the Government to adopt a gender-sensitive, inclusive National Land Policy based on human rights principles. This shall ensure an effective land administration system and efficient enforcement of the existing laws and regulations concerning the allocation, sale, transfer and assignment of land. Customary land rights should be put at an equal standing with state land to protect the rights of those living on customary lands.

[i] Mutale, E. ‘A Biblical View of Land Policy’ South African Journal of Surveying and Mapping’, Vol. 23, Part 6, Dec. 1996, pp325-332

[ii] Preliminary Observations of the Special Rapporteur on the right to food, Hilal Ever, on her mission to the Zambia capital, Lusaka. 3-12 May 2017.” UN Human Rights, 12 May 2017. Web. 18 May 2017. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?

Chief Nkomeshya (chieftainess is redundant, surely: Presidentess?) is a remarkable and resolute leader as she stands up for her people. The push is between the neoliberal state, and the ecological community. They don't kamba the same language - nor should they.

Well, blockchain and bitcoin are all new to us. Like Facebook, it is open to all sorts of sorcery and ma-jonja by the Big Man and his mates. The customary commons is a proven socio-ecological-spiritual system, which blockchain/Bitcoin ain't. And we have a climate disaster on the go.

I have just read the early 2018 discussion and see your comment on the codified biblical approach to land issues. So, have you placed! You have made a very important contribution on a crucial issue, something much gone out of focus in the Global North.

Emmanuel Tembo makes yer another important submission that Chiefs might be driven by rational objectives of job creation and/or rural transformation. Some of this equate to public narratives of development being equated to foreign investments. A lack of rural development and poor state support means Chiefs can take matters in their own hands. But again this is where the problem really is.

Nsama makes an interesting observation: “As a result, customary land is reducing at an alarming rate.” 

In stretching this point, I can argue that now more than ever land grabbing present the biggest challenge facing Zambia. Chiefs will need protection from such influences.

Corruption in land sector thrives and persists for 2 main reasons- one,  a broken opaque system riddled with inefficiency that breeds frustrations on the users; and two,  the drivers of the system who irregularly benefit from the broken system, corruption and who would do anything to frustration efforts at fixing the system.  solutions then must address these 2 areas. while technology could fix the system, the people power is needed to tackle the human angle.  under the customary land regime, the communities whose lives and livelihoods depend on the land always lose in the face of corruption. oftentimes, they do not understand the systems under and through which the land transactions are done between their traditional leaders and the players who gain an undue hold on the land. 

Building the people's power to understand their rights and hold their leaders to account is thus critical.

An inquiry is urgently required to establish what percentage of land in Zambia is customary area. The Sitko et al paper of 2016 needs to be thoroughly investigated, and if verified, explanations obtained of where the land went. The House of Chiefs should have been invited to contribute to this discussion, as well as the Auditor-General's office.

Many thanks, Uchendu for sending the info on blockchain.

Thanks to all the contributors to this discussion. This is a valuable learning space with opportunities to learn from the experience of Ghana, Zambia and Kenya. One of the challenges we face in South Africa relates to the collapse of land administration particularly in former 'reserves' and 'bantustans' established as part of colonial conquest and consolidated under apartheid. One of the ironies of South African geographies of inequality is that many of these overcrowded and impoverished former bantustans have been found to have rich mineral deposits. Uncertainties over land tenure and how land rights vest in these areas have created spaces for mining houses to enter into corrupt and exclusive arrangements with traditional leaders which have led to further dispossession and marginalisation of local residents.  For more information on the South Africa see the collation of news on lands rights and mining on knowledgebase.land the website and information service run by Phuhlisani NPC on all aspects of the land question in South Africa.

It would be great if contributors to this discussion could reflect on the role of traditional leaders, the allocation of mining rights and the distribution of benefits and the extent to which local land rights holders are enabled to exercise free, prior and informed consent in the countries which are the focus of this discussion.

The corruption risks in the allocation of customary land arise from the intrinsic nature of customary land administration system and the recent drive for large scale land investments:

• Trusteeship principle in which the land is held by the chief with very limited safeguards to ensure wider community consultation before land is allocated.
• Absence of customary land regulations leaves the allocations of land to the open interpretation of customary law and practice by traditional authorities
• With the opening up of the land market after the 1995 Land Act and the increased pressure for land-based investments, there is a huge market for land

• Large-Scale Land Based Investment in Zambia has always been problematic. As it usually involves of customary land, as State land is limited by size. This almost always leads to conversion as no investor feels secure developing customary land, this results in communities being displaced. In a 2017 report, Human Rights Watch documents (Documentary released on October 25^th, 2017 found at: https://www.hrw.org/news/2017/10/25/zambia-commercial-farms-displace-rural-communities) that  rural residents are  displaced by large commercial farms in Serenje district, by some commercial farmers acquiring thousands of hectares of land and forcibly evicting rural communities that have farmed the land for generations.
•  The report cites government failure in protecting the rights of these communities, but rather only focused on promoting large-scale land-based investments in trying to diversify the economy.
• A 2013 report entitled LARGE-SCALE LAND ACQUISITIONS: EXPLORING THE MARGINAL LANDS NARRATIVE IN THE CHITEMENE SYSTEM OF ZAMBIA (Laura German, Davison Gumbo, George Schoneveld 2013) intimates that forests and mixed-use woodlands are often targeted by government for agricultural expansion to leverage benefits from land-based investments. It goes further to allege that the identification of such areas is more often driven by perceptions than evidence, with these perceptions grounded in optimistic views about land availability and discriminatory views of customary land uses.
• As pertains the conversion process (Laura et al 2013) reports that in contrast to other African countries, the Zambian government actually acquires the land from customary authorities irrespective of any interest expressed by prospective investors, resulting in a permanent shift from customary to state land even in the absence of investment.
• HRW cites this as a challenge. In the report cited above, Government officials say all farm block land was long ago converted from customary to state control. Some advocates and traditional authorities say the processes were so faulty that the conversions should be considered void.
• But legally, government and investors have specific procedures to follow over these investments. They need to consult affected communities, provide appropriate compensation, adhere to resettlement standards, assess environmental impacts, and comply with relevant laws. Traditional leaders must also consult affected communities before agreeing to land transfers. Government officials should ensure that investment projects comply with the law. (Lands (Customary Tenure) (Conversion) Regulations.)
• In another vein, the law through a Statutory Instrument, regulates the amount of land a traditional leader can give to an investor without consultation of government – 250 Hectares, but in some instances traditional leaders have exceeded this limit, causing uproar about abuse of power and possible linkages to corruption.

Of course, it would. Which is why Chiefdom/Guardian assemblies are essential. The present system does not work: it fails to protect customary area.

Mining must be severely limited, strictly controlled, and managed, with citizens - customary villagers at the front of the queue - benefitting directly from the proceeds along the lines of the Alaska Permanent Fund. For many years the mines have not paid the requisite taxes, nor dealt and compensated for the horrendous pollution. Here again, let us see citizens' assemblies in action.

In addition to allocation and administration customary land, there already exists in Zambia,  traditional courts presided over by chiefs and their advisors set up to handle conflicts and disputes based on prevailing customs and practices. The Chiefs' Act recognizes traditional rulers, and therefore by extension, traditional courts, which are an integral part of traditional governance. In addition, statutory recognition of traditional courts can be inferred from the following Section 50 of the Local Court Act:

….nothing in this subsection shall be deemed to prohibit any African customary arbitration or settlement in any matter with the consent of the parties thereto if such arbitration or settlement is conducted in the manner recognised by the appropriate African customary law.

The existence of these traditional dispute resolution institutions however, does not seem to have had a major impact on reducing land disputes.

Between 2014-2017, the USAID-funded, Tenure and Global Climate Change Programme in Zambia’s Eastern Province, documented in the region of 20,000 customary lands in 5 chiefdoms. Anecdotal evidence from the chiefs suggests that they had benefited greatly from a reduction in land disputes. While a major objective of this exercise was to map and document household claims to individual or family land, a necessary component was land dispute resolution. It is the coupling of the two – mapping and documentation alongside dispute resolution mechanisms - which might have combined in nailing down the certitude of land claims and thus reducing land disputes.

• Contrary to popular belief, customary dispute resolution systems are the most efficient and fast track judicial systems in Zambia, this is due to accessibility; cost efficiency and lack of procedural respectabilities which is the norm in the formal legal system
• In a study done by Petauke District Land Alliance( 2018), this author established that Traditional leaders have historically used customary law to resolve land disputes, marital matters, succession and inheritance disputes and many more. To this day, the institution of traditional leadership still employs customs to resolve disputes. As a result, customary law continues to play an integral role in the resolution of disputes in communities. Traditional courts are established in accordance with the various traditional governance systems in the country.
• People their own volition elect to go to traditional courts for justice, because customary law is premised on the principle and spirit of voluntary affiliation, and that its application is accessible to those who choose to live in accordance with its evolving values and abide by its practices and customs. Further, many who subscribe to customs and practices embedded in customary law voluntarily elect to have their disputes resolved in terms of their customs and practices in traditional courts.
• A Dispute Resolution Mechanism in a Customary system can work well due to the following reasons among others:
  
  •  Accessibility – these courts are accessible anywhere as a litigant can walk to the nearest traditional leader and lodge a complaint
  •  Flexibility – the court system is so flexible that no stringent arduous process of filing is required for the matter to be properly before the court
  •  Quick disposal of matters – matters are resolved amicably and in a timely and efficient manner as no time is wasted. Mostly a matter is resolved within a week of its lodging
  •  Principle of reconciliation – in resolving disputes, there is promotion of the principle of reconciliation, because living in harmony is for the communal good and high priority is placed on the maintenance of human relations
  • Traditional governance system – these courts are part of the governance and administration system.

Yes it would help.  This had been the dispute resolution mechanism that had managed land tenure in Ghana for centuries.  The recent directive by the Asantehene Otumfuo Osei Tutu II to all Asante chiefs to withdraw all land cases pending before the courts for customary settlement, under the pain of destoolment has worked magic in the Asante Kingdom.

Question 5: Could sanctions against chiefs when they deliberately violate the land use could make a difference?

The traditional governance system, which is the environment in which many traditional rulers, is not a transparent environment (at least in most local governance systems in sub-Saharan Africa). This, in itself is not a negative thing because traditional rulers are usually a group of individuals who are the custodians of culture and tradition, and are usually enthroned to do this by their involvement in rituals which are imbued in secrecy (and not always transparent). My point is that secrecy is part and parcel of the traditional rulership in their governance environment, so many of them are not particularly disposed or trained to operate openly in matters of local governance. So, many of them lack the skill for open operations, and most of them therefore are not disposed to operate openly (and this is, maybe to them a normal way of life). 

With this kind of attitude, traditional rulers are susceptible to corruption when operating in the conventional land administration environment because they exploit secrecy as a tool to hide activities that may not be deemed acceptable (e.g. corrupt practices). May be, what we need to do is to provide capacity development training in transparent practices to enable them learn to operate more openly. This may also demand for a change in the way traditional rulership environments are structured.

The Chief’s Act empowers the President to suspend or withdraw government recognition of a Chief in the interests of peace, order and good government. There is a therefore a wide discretion as to what might constitute a sanctionable offence. It could be argued that if a chief deliberately violates provisions of the constitution and other principal acts in relation to land administration, then this undermines good governance and might constitute a sanctionable offence.

While the President has from time to time exercised his power to suspend or withdraw government’s recognition, in practice this is often down to what is politically expedient. Chiefs have a huge amount of social/cultural legitimacy and government is often not prepared to be seen to be meddling in what are widely considered as matters of tradition and custom.

• Chiefs have a traditional hierarchy system of their own, usually, it is a Paramount Chief who metes out sanctions to erring sub-chiefs. Occasionally warnings are reverberated to indicate wrath to an erring chief in this regard.( As most recently Mwata Kazembe warned his sub chief over witchcraft and drunkenness among other- www.daily-mail.co.zm/mwata-kazembe-warns-chiefs/)
• As this is done by way of custom, the only recourse for a non-customary procedure for an aggrieved party is by way of court process. The Constitution in Article 166 establishes that the institution of Chieftaincy is corporation sole, and has capacity to sue and be sued.
• This provision opens recourse to any interested or aggrieved party to utilise this provision.
• Moreover, the Lands Act Section 3 places all land under the President, this entails that a traditional leader is not at liberty to manage land in any way he feels, he is still under an obligation to comply to tenets of good stewardship.
• So the response is in the affirmative, the regulatory frameworks put in place can help to sanction erring traditional leaders.

Land Corruption in Africa – A perspective from Liberia

M. Sahr Nouwah – Former Advocate- Liberia Land Rights Law 2018

1. Introduction 

From 2017 to 2018, I worked for an international organization in Liberia where I had to support national Civil Society Organizations; about 29 of them to advocate for the passage of the then Liberia Land Rights Bill. I became fully involved beyond support and at last, we won. Though I am a former advocate for that bill, I remain an advocate and very keen on Liberia as I know that the law has the potential to empower local communities, youth, women and the country at large. 

After resigning my post, I wrote an article on medium titled: ‘’Our Land is Not for Sales’’. The idea behind this was that while most often we blame ourselves for corruption, we also need to pay attention to those who are aiding and abetting the process. Of all land criminally owned in all African countries, those land forcefully taken by western/powerful investors could account for about 70% if we consider the situation in Southern Africa, West Africa and the East African region. 

While fighting and advocating for the Liberian Land rights law, I was able to learn few things. For all the land criminally transacted, it is not actually those who we often blame that are the problem. I first realized the power of the legal profession in Africa and how all transacted land in Africa went through the law or was supported by a lawyer who aided an interest person- using his money to own land.  For instance, in Liberia, land has been concessioned to powerful investors who have cultivated the land for more than 100 years without any benefit accrued to the country. All these concessions are legal registered and owned regardless of the flaws after all. 

My argument in this discourse is heavily guided by my experience not what we might necessarily seen on paper or head of as a popular saying. 

2. The Role of Traditional Leaders in customary land administration

The role of traditional leaders cannot be underestimated. Before colonialism, traditional leaders fought to gain land which they protected for their people. By this time, it was not for men or women, youth or elder, it was for their people. That is why most often it was a tribal land. In fact, the word Traditional leaders was actually a tribal leader. 

During colonization, after fighting many failed battles, the Europeans cleverly engaged these traditional leaders, made peace with them and use them to govern. During this period, and in places like South Africa, such was regulated through the law (Black Administration Act of 1927) with many subsequent acts passed. In West Africa, it was directly term later by historian as an indirect rule (Yakubu A.M.1993).  All these processes diluted the power of chiefs and change their role and what they could actual offer.  After  going through this strict and unwanted dismantling of their powers, the traditional leadership became a puppet of the government and those in leadership. Those who initially became educated, wishing to get a taste of land ownership, all working in government- used their influence to manipulate these leaders to acquire tribal land for private use like their European colonizers. 

Let me say this again, in Liberia for instance, a typical traditional leader knows land based on a working distance not Meters, acres and kilometers. Whenever elites buy land for private use or for their investor colleagues, chiefs who could have thought of selling a piece of land ended up losing the entire land of his people. Typically, the quantity of land that is registered on paper in Liberia for instance is unbelievable that any chief could do that. Another modern situation is the surveying of land by modern tools using helicopter from the sky. There is no traditional leader that will know how much they are selling in actual sense. These challenges faced by traditional leaders are hardly explained and we all keep believing that they are behind all the corruption. On many occasions, investors and elites threatened these leaders, provide them with false promises for jobs that will employ their people and out of good intention, they give the land out which normally tend to be a serious trouble in the long run.  On the overall, if we give traditional leaders the support and provide them with the right information, I can tell you that they are better placed to protect communal and traditional land than any given government. 

We must reinstate their role by laws that are inclusive and equally demand that any lawyer who processes a given land transactions later deem to have been arranged with flaws must take full responsibility of all damages. 

While the role of traditional leaders remain active and could become more useful as land laws seek to give land back to the communities and provide space for inclusive use, we must develop strict laws to regulate the behaviour of lawyers and elites to make sure they do not use their know how to cheat and put the blame on traditional leaders. 

If we listen to communities and empower them properly, we can reinstate traditional power to land, regulate the ownership, management, use and transfer in a simpler way with simple terms. For instance, through local guidelines. 

3. Forced Evictions as a Form of Land Corruption and its Impact on Women's Land Rights 

I do not want to dwell whether there is an impact on women when forced evictions take place. In the first place, in all slums, population surge, women are more vulnerable, many with children whose fathers are unknown. This vulnerability is well known, and many do not do much to help after all. 

There is no doubt that without dwelling on legal provisions and the good intentions of government, force eviction is an offense and a deliberate act of refusing to listen and to support your people. Those being evicted are poor citizens and if any government means good, the first thing to do is the do the best thing. By negotiating and using the resources earned from the sale of certain land, government can build better estates to move people where they can jointly access services and benefits as part of the social contract between government and the citizens. Sadly, in the entire world, force eviction has been justified and continue to be used against citizens and people especially women and children. 

But for any government willing the do the best thing please note the following:

• In often situations, force evictions present an opportunity to government for a better service delivery. For instance, if an investor is willing to buy a piece of for a million dollars, such huge sum can be used to build allow income estate where schools, markets, electricity and water supply can be provided for a good number of those who will agree in good fate to move peacefully. 

• It is an ideal opportunity to use such resources to build trusted communities who can keep a government in power through popular votes as such service delivery is a good sign of a good government

• Such builds a patriotic trust and sealed a social contract between government and the governed while at the same time helping to build the nation in a more rapid way to sustainable outcomes reducing tension, building peace and unity different people

• At the same time, it provides such communities an opportunity to enter the productive economy and become taxpayers at some point in the near future 

4. An Analysis of Alternative Dispute Resolution Systems in Addressing Land Corruption.

Liberia is presently testing the integration of alternative dispute resolution for all land disputes now and in the future. However, why the benefit is crucial such as low cost, time justice and easy to run system, the following must be considered:

• Enough safeguards to protect vulnerable people especially women, children and youth 

• Those empowered to run the system must be trained and regulated with strict rules and laws 

• Traditional leaders should be independent of the process while a special team of inclusive citizens should run it

5. Conclusion 

While we often know that land corruption is rampant, we must consider the fact that often, there are reasons for this which are not spoken or discussed. These reasons are hidden, and we must deepen our understanding of the different uses of land and provide alternatives to such uses.  For instance, when land laws are being passed, we listen to lot of positive things, but the inputs are sometimes guided by special interest groups who will want to use the law and gain access to privileges.  

Please read my article on Medium: ’Our Land is Not for Sales’’. 

Question 1: How do you strike a balance between development for common good (public interest) and forced evictions?

To strike a balance of development for the common good is increasing Tue people's access to information, facilitating their participation in planning and decision making processes and their access to justice. 

Regulation on disclose policies and on the simplification of administrative procedures. 

Ensuring access to Justice is another important means of combating Corruption. 

For Liberia case, there is no legal backings that give right to the state to sanctions Traditional Leaders hlwho violates land use. 

The Traditional leaders are recognized as the custody of the land. Liberia Land Law provides that, Traditional practices on land should be recognized formally by laws in order to secure tenure right for the young generation. It is believes that customary land is owned by the Customary authorities. Liberia Land law divided the Land into four categories namely, Private land, public land, Government land and Customary land. 

Customary land is use and manage by Customary authorities. Therefore, there is no legal means to sanctions traditional leaders who violates Customary land use.  

In Kenya  sometimes the government may need land for public interest projects such as  expanding roads, mineral exploration or establishing other public utilities. In such instances, the rights of the government override individual rights of ownership, and therefore the government can take privately owned land through a process termed as compulsory acquisition. However, the government must give adequate notice and compensation to the private owners of the land before acquiring it.

It is worth noting that as a country, Kenya has not enacted a law governing the issue of evictions and resettlement though there are attempts made from the year 2006 to put in place the law but the Evictions and Resettlement Procedure Bill, has faced many challenges and with this state of affairs, we are guided by international instruments and principles by virtue of Article 2(6) of the Constitution 2010, because Kenya as a country ratified the stipulated international instruments as early as 1972. The provisions are further supported by the express provision of the right to adequate housing under Article 43(1) of the Constitution and in that regard, as a country we are to abide by the international eviction guidelines.

The Ogieks are a Kenyan indigenous community that comprises about 20.000 members, mostly located in the Mau Forest, a land mass of about 400.000 hectares. In October 2009, the Kenyan Government issued a 30 days eviction notice to the Ogieks on the grounds that the forest constituted a reserved water catchment zone and the State had to conserve it. This was not an element of novelty for the Ogieks since they had been victims of injustice throughout the XX century and have suffered from continuous marginalisation and subjugation. The eviction act came as the last of a series of other similar actions undertaken by the Government since the colonialism period, as well as the lack of legal recognition of the Ogieks as indigenous group. Given the very close relationship between the Ogieks and their ancestral territories, the eviction resulted in a substantial violation of both their basic human right as to live in their homeland and to their cultural, religious, social and economic rights as indigenous people. These rights are protected under international human rights law instruments such as the United Nation Declaration on the Rights of Indigenous Peoples (UNDRIP) and the African Charter on Human and Peoples’ Rights (the “Charter”).

What sanctions? And why just the chiefs? What about the president, the Land Commission, etc? The system is broken and the global catastrophe advances though it has escaped mention in this discussion. Villager assemblies must assume responsibility for the temporal affairs of a chiefdom, the chiefs concerned only with matters eternal. We need true democracy in chiefdoms and in the nation. This be the first step; followed by:

1. The Guardians of Nature to be resuscitated. As Zambia is a declared Christian nation it is recognized that the Edenic Covenant holds man accountable for the care of Mother Earth.

2.As per Allan Savory’s recommendation in his Good Governance in Africa, where possible devolve and reduce government: the first-past-the-post party electoral system to be abolished, replaced with a unicameral chamber of deputies where customary area deputies are directly elected: ‘The country would be divided into electoral districts or constituencies much as today but with the district boundaries determined by the Judiciary and not politicians. The aim would be to prevent manipulation of the voter’s roles, constituency boundaries and more by the political parties in power. Any individuals could stand for election if their application to do so was supported by a certain number of signatures of people resident in that constituency (assume 2,000 for illustrative purposes).  These individuals would appeal for the vote in their area on the basis of their character, reputation and record in the community and their desire to serve their community and nation in this capacity. They would raise their own funds from supporters and stand on their merit. Any candidate for Parliament found to be financially supported by any corporation or special interest group would be disqualified and never again allowed to stand for public office’.

And so on...

I agree with Raymond that "the regulatory frameworks put in place can help to sanction erring traditional leaders." I wonder whether this could potentially reshape the traditional hierachy system as you pointed out. Should this be the case, what then would be the implications for land administration? 

Emmanual unpacks two somewhat difficult processes: "... a traditional authority can be bribed to sign off the conset" .....and "the President can allocate any piece of land anywhere if it is deemed to be in public interest." How public interest is defined is unclear. Reconsiling these processes would be important in shedding light on land transactions. 

Forced evictions have to be objected to by the public and fought in the courts. The problem is when you want to meet to discuss a campaign issue you are refused permission to do so by the PF. See Zambia Watchdog of 24 July:

Govt cancels senior citizens press conference

24 July 2019 19:11  7

PF direct police to cancel senior citizens press conference

Homs Affairs Minister Steven Kapyongo has directed the police to cancel a planned press conference named as ‘the Zambia we want’ which was supposed to have been addressed by Simon Zukas and Gilbert Temba.

Meanwhile PF has paid discredited former civil society activists, now PF cadres Andrew Ntewewe and Hyde Haguta to organise a solidarity rally in support of PF. In a recording being circulated on social media platform, Ntewewe who is being investigated for stealing donor money is inviting members of the public to support what they are calling the Zambia we have.

According to sources at force Headquarters, State House through Kampyongo has also directed Mulungushi Conference Centre to cancel the booking for hosting the press conference. Below is a statement by the organisers:

Dear Colleagues and Country Men and Women!

For/On behalf of the Senior And Concerned Citizens, I wish to inform you and through you the nation, that the proposed media briefing which was supposed to take place tomorrow, 25/07/2019 at Mulungulushi Conference Centre *has been postponed to a later date to be communicated*

This is because the Mulungushi International Conference Centre Management, after receipt of the payment, demanded for a *Police permit* to allow the organisers to convene and hold their briefing at the premise.

Having been communicated at last meeting of this new demand, the Senior and Concerned Citizens have decided to put off the briefing.

This demand for a police permit to hold an indoor media briefing has never been unheard of in democttai Zambia Democratic until now.

It is unfortunate now that an indoor media briefing requires police permit and owners of premises can use such as an excuse to deny citizens the right and freedom to expression, association and Assembly.

Aluta Continua!!! *Freedom is coming tomorrow!!*

Here lies the problem. Oh! Don't forget about the climate catastrophe as well.

The law stipulates instances where eviction can happen. It is required that the dignity of those being evicted be preserved. However, the practice has had a negative towards the rights of those being evicted. In several instances, force is applied leading to destruction of property and loss of life. The state should always ensure that public interest do not completely banish individual rights. 

The word public means for us all. So we cannot want or purport to evict ourselves. This country has lawyers and is part of various international treaties - all these speak to how people need to be resettled or compensated because of projects. Whether they're on public or private land.

Corruption as defined by Wikipedia is a form of dishonesty or criminal activity undertaken by a person or body entrusted with a position of authority, often to acquire illicit benefit. It may take the form of bribery or embezzlement.

Forced evictions can be generally understood as the illegal and criminal deprivation of the rightful owner of the property (land) that belongs to them legally or by right.

These evictions have a bearing on corruption in that many times the perpetrators want to acquire an illicit benefit from the underprivileged members of the community, majority of whom are women including widows. Often, when a man dies, the greedy relatives, members of community and sometimes trusted leaders in the community plunder the property (in most cases land) that would rightly belong to the deceased’s wife and children. These ride on the vulnerability of the rightful beneficiaries through criminal acts like trespass, destruction of crops and houses on the land, threats, assaults and sometimes even go the extent of threatening to kill if a widow does not surrender the land. The widow’s woes are worsened by a dysfunctional public justice system which many times fails to acknowledge these as crimes; categorizing them as family issues or civil matters.  This means that if the vulnerable woman is to take legal action, she must face the perpetrator herself or at a hefty cost, hire a lawyer; who may also not guarantee justice.

At every stage of the land administration process, there is some form of corruption and women are the majority of the victims. Statistics show that women represent a great percentage of the country’s illiterate. Therefore,  even though they work  hard enough to accumulate wealth which includes land, because of this systemic disadvantage, they may not be ignorant  about land processes and so local leaders, officials in land registries and those entrusted with the duty to secure justice take advantage of this weakness and in effect deprive them of their land rights. This deprivation takes the form of asking for bribes, which the poor woman may not be able to afford. Other times, it takes the form of unfair negotiations and mediations forcing the widow for example to surrender an unjustified chunk of the land to the perpetrator for the sake of maintaining peace in the community. In effect, the perpetrator gains an unconscionable benefit from this. 

In conclusion, forced evictions are a form of crime mostly fueled by the system which also allows women oppression to thrive and therefore it is undoubted that it hits women harder.

Under objective (xi), of the Constitution of the Republic of Uganda 1995, it is stated that in furtherance of social justice, the State may regulate the acquisition, ownership, use and disposition of land and other property, in accordance with the Constitution.

The legality of compulsory acquisition of land is enshrined under the Constitution of the Republic of Uganda 1995 and in particular Article 26 which provides for protection from deprivation of property.

The 1995 Constitution of the Republic of Uganda as amended provides for the right to own property by an individual or a group by virtue of Article 26. The law further provides for exceptions under which a person can compulsorily be deprived of his or her property specifically land and these include public safety, public order, and morality and for health reasons.

Article 26 (2) provides that no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied— (a) the taking of possession or acquisition is necessary for public use or in the interest of defence, public safety, public order, public morality or public health;

Compulsory Land acquisition is also governed by the Land Acquisition Act Cap 226 and Section 3 of the Act provides for a declaration that land is needed for public purpose. The Section provides that whenever the Minister is satisfied that any land is required by the Government for a public purpose, he or she may, by statutory instrument, make a declaration to that effect.

In relation to the dialogue question, compulsory acquisition of land in the name of development for the general public is legal.

However, it is important to note that in as much as it is legal for compulsorily to acquire land for public purpose, sometime the process under which the land is acquired nullifies the whole process due to the inappropriate procedures used to carry out most of the evictions, disguised under public interest and resulting into land corruption.

The inappropriate process can be discussed under the second part of the dialogue question as to whether the citizens are protected during the forced eviction.

it is evident that across the world and Africa as well, policies and/or legislative change have given a number of different countries including southern African countries(Botswana, Mozambique, Namibia, South Africa and Zimbabwe) the rise of indigenous community conserved areas that are managed by traditional leadership in the region. This was based on the devolution of rights from central government to local communities to make use of traditional structure(with little interference by the government) to manage the land and natural resources, including forestry, water, wildlife. this mostly happened after failing of policing natural resources by using formal structure. and this case the traditional institutions because there have trusted system and stuctures, some levels the  issues of corruption is low eg most of decision are made the trusteful structure. 

Globally, tens of thousands of people are treated to threats of evictions or are forcibly evicted often resulting in the majority of then being rendered homeless and landless. Others especially the marginalized and vulnerable communities are left living in extreme poverty and destitute conditions. Forced evictions lead to severe trauma and set back to the evictees and this is made worse for the victims who are already marginalized and vulnerable in the society. Forced evictions are understood as temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. Forced evections are in principle a violation of human rights and more so the right to housing as the international community maintain.

Forced evictions have been practiced both in the developing and developed countries alike and the activity has been justified in the context of development, emergencies as well as reconstruction. Forced evictions have further been propelled with urbanization process as well as climate change and globalization. In addition forced evictions have been driven by  global crises  for instance the financial crises which in sum make  forced eviction activity to be more a cute and complex in mature.

Forced evictions in Kenya can be traced back into the colonial era  ,range from land or housing evictions, committed in rural and urban  and netted to individuals, family , community or neighborhood and the practice has been extended by the post independent administration. Forced evictions can be understood in the context where the colonial governments used irregular and or illegal methods to obtain land from the native communities. The post- independent government perfected this trend through disrespect of land laws in land allocations, land registrations, forceful evictions and land grabbing which demonstrate corruption in the context of development agenda. retroactive justice fund was established in 2015 but the kitty finance have not been accounted for.

In Kenya forced evictions for development purpose have been done but the state fails to provide protection for the vulnerable, procedure guarantees lack and due process not followed. They have resulted  in indigenous people in rural areas being dispossessed of their ancestral land, the decision making process of eviction has been grossly flawed, illegal and deadly force and violent used and death cases being reported. This has been done by state agencies (Amnesty International, 2014).court sanctions to stop evictions have been ignored at some point, houses of victims burned with no alternative shelters provide.

Women, due to customary stereotypes have been the most affected. Families have been torn apart and as Amnesty international report, men have deserted their wives, forced evictions have exposed them to sexual violence, been traumatized, intimidated, harassment, stress and anxiety as UNHRC reports.

Question2: Do the government in Kenya and Uganda protecting their citizens from forced evictions?

The government of Kenya protects their citizens from forced evictions through the law.

In its preamble the Land Laws (Amendment Act, 2016) states that this is an Act of Parliament to amend the laws relating to land to align them with the Constitution and give effect to Article 68 c (i) and 67 (2) (e) of the Constitution, to provide for procedures on eviction from land and connected purposes.

Section 152C of the Land Act unlawful occupiers of land should be given at 3 months prior to the eviction.  This must in be writing, in the Kenya Gazette, in a newspaper of national circulation and on radio.  Under section 152F, any person served with an eviction notice may apply to the court for relief against it.

During evictions there are strict rules that should be followed.  The mandatory procedures are the Land Law Amendment of 2016. Stating that evictions must be carried out in a manner that respects the dignity, right to life, the security of those being evicted.  Groups that are vunerable such as women, children, the elderly and the differently challenged must have special measures to protect them.  Recommended that there should be minimum use of force. 

Then those carrying out the eviction must be properly identified.

There have been many cases of evictions where the law is not followed. Those being evicted must also be made aware of their status as illegal occupants and educated on the process.  If this is properly done, then eviction should not be seen as a form of corruption.

For Kenya, yes.

Constitution of Kenya 2010 in Chapter Four, that is the bill of rights and other provisions have a direct impact on right to housing in general and particularly on evictions.

Article 10 on national values and principles of governance include among others commitment to human dignity and human rights including non-discrimination and protection of the marginalized.

The constitution under Article 28 provides that every Kenya should be treated with respect and dignity. 

The Principle of Natural Justice requires that every individual be given an opportunity to be heard. As such, all people under threat of eviction are required to be served if the matter is in court and notice prior to eviction. Some people find it inaccessible to get things working in courts. 

The Land Act, 2012 has other provisions that seeks to prevent forced evictions.

They are inadequate though. So many people do not respect court orders. There are instances where evictions have proceeded even when there is an order in place barring the evictions. There are instances where communities refuse to abide with eviction orders or law enforcement agencies refuse to abide. 

The existing laws do not provide a win - win situation between government and the affected communities. There are unbalanced power relations between government and big investors on one hand and communities and individuals on the other. The laws protect property rights of its citizens but there are some existing inconsistencies and gaps that allow deprivation of property to happen. According to the Constitution of the Republic of Uganda, Article 237 (1), Land belongs to the citizens of Uganda. Article 26 safeguards right to property even as government can compulsorily acquire land for public interest/good land and further requires that when government compulsorily acquires land in public interest, it compensates affected people before taking over their land. There have been attempts by the Government to amend article 26 of the Constitution, which would takes away the requirement of prompt and prior compensation and enable government to compulsorily acquire land even before owners have received payment. The proposed Constitution (Amendment) Bill threatens people’s right to land‐ a fundamental source of livelihood on which 80 percent of Ugandans, most of them poor women, rely. Further still, The Land Acquisition Act is a central law applicable to land acquisition. It is however not entirely in conformity with the Constitutional provisions. The law empowers the government or a local government to acquire land but does not define the basis of compensation assessment nor the valuation method to be used to arrive at the compensation figure.

None the less government is trying to come up with policies and guidelines to safeguard its citizens from unlawful evictions – for example the National guidelines for lawful evictions and the Land Acquisition, Resettlement and Rehabilitation Policy (LARRP), but there is an issue of gap between policy and practice in Uganda, this should be coupled with commitment to comply and implement. Also a need to amend the Land Acquisition Act Cap 226.

Connivance amongst land governance institutions is the rampant form of corruption when it comes to evictions. The following examples illustrate this;

1. Some Area Land Committees are bribed to process questionable applications which are then submitted to the District and Boards for award, which later lead to eviction.
2. District Land Boards in some areas do not perform due diligence even on suspicious applications because they have been compromised. This leads to unlawful awards of title which ultimately lead to evictions
3. Some Eviction Orders are obtained fraudulently from Court after the judicial officers have been bribed
4. Security agencies being used to shield land grabbers at the expense of the ordinary women and men in the community
5. Tenants conniving with Local Councils [LCs] to back date land sale agreements to indicate that the purchase  was before the year 2010 when the Land (Amendment) Act came into force barring sale of one’s tenancy without the consent of the land owner
6. Some mailo land conniving with the Local Councils [LCs] to hide notices of payment of busulu from the tenants to use that opportunity to seek an eviction order and get them off the land.

From the above, it’s clear that evictions in Uganda are a consequence of exercise of power and authority by the rich and powerful on one side and the poor and vulnerable on the other.  The affluent and well-connected individuals have the means and connections to unduly influence, bribe or even threaten any land administration institution and land owners. This compromises the land rights of the poor in society

Women suffer the most whenever an in-human act is carried out. Women are mostly in charge of our houses hence: a) their investments will be distorted: b) they tend to be more emotional than men, hence may take long to heal: c) the bear children whom when they see suffer, this is transferred to them and equally take long to heal. The government needs to put measures that safeguard citizens upon projects and equally pass the anti-evictions law currently in parliament.

Most women in Kenya hold land through either their husbands or male relatives. This means that very few actual women land owners are legally registered land owners. During forced evictions, issues such as compensation have an impact on land rights.

Furthermore, even though men may be legal custodians of land, most of agricultural activities on land is done by women. That means that forced evictions may have a more dire impact on women land factors on agriculture such as their sources of income and livelihoods. The men owning the land may not be as reliant on them as women are.

What can be done?

1. Government adherence to the law, exercise of restraint, and minimal harm principle
2. Citizen understanding of land rights and land laws. (Sometimes, the citizens may be on the wrong side of the law)
3. Massive land reforms especially in addressing land injustices, informal land settlement problems and the squatter’s problem in Kenya.

Per the 2018 Land Law, customary land in Liberia is owned by the communities (not customary authorities) who have claimed it for generations. Communities must form governing bodies to make decisions about their land, including concessions. It's too early to know what will happen to customary authorities who violate the law, but hopefully massive sensitization on the Land Law will make the people aware of their rights. 

The amendment and regulations of Laws and policies is a means of recognizing and protecting women land rights against forced eviction. 

Women acquired rights to land through many of the same channels as men: inheritance and gifts from their natal families, borrowing, and much less frequently, through planning life trees. However, a primary means by which Women access land is also through marriage, such that women's rights to land are substantially framed by customary traditions. 

The marriage system in Liberia is predominantly patrilocal, whereby women relocate to their husband's communities upon marriage and therefore access land by housing and farming there. Marriage traditions combined with traditions of lineage -based claims to land result in women generally having weaker rights to land compared to men. This is particularly the case when it comes to rights to administer and retain land in their husbands' communities when they are widows and rights to administer land in their natal communities. 

Women are common victims of forced eviction just as children. As a category of people who have suffered historical injustices on ownership of property because of the patriarchal set up, it becomes very difficult to acquire another piece once forcefully evicted. 

What can be done?

• There needs to be an enactment of slum prevention and upgrading law;
• There is need to revisit the question of historical injustices to address land challenges in Kenya; 
• Government should consider poverty elevation mechanisms to reduce the number of people living below the poverty line. 

The spectre of eviction hangs over the less powerful who live in almost perpetual fear of losing their land, property, livelihoods and lives as well. Women suffer most as they suffer the brunt of a double faced forceful evictions at micro level ( family) and at macro level from the process of land by governments and businesses companies in the name of development/public good. Considering 50% of the impacted people are female, there is need for a gender lenses in conversations around land acquisition and evictions in order to come up with effective and lasting solutions.  Women can be supported through:

• Empowerment through sensitisation and awareness raising
• Provide for prompt payment of fair and adequate compensation prior to acquisition.
• Emphasis on rehabilitation and livelihoods restoration entitlements of affected women
• Empower communities on gender and women’s land and property rights
• Institute mechanisms and legal frameworks for protection of women’s property rights including compensations
• An adequate and reasonable notice of intent to consider an eviction
• Holistic and comprehensive environmental, economic and social impact assessments conducted

Adequate consultations through public hearings with the affected persons with emphasis on women’s equal and effective participation is such consultations.

These are my recommendations:

• Government needs to expedite the development of Eviction Guidelines streamline the processes and roles of all stakeholders involved in handling evictions on land. The current ad hoc measures create more confusion and are unsustainable.
• Strengthen District Land Boards and Area Land Committees through skilling and tooling to function in an effective way without the undue influence of applicants.
• Needs to deal with the rising level of impunity in the country orchestrated by “land grabbers” who have the capacity to disregard any lawful sanctions against them without fear. This power imbalance needs to be dealt with since it contributes to the many forced evictions in Uganda
• Government needs to scale up land documentation efforts to ensure land owners including women have the necessary documents to prove land ownership to strengthen their claims on the land. Since most land is owned customarily, it follows most evictions are on customary land. Therefore, efforts towards developing a customary land registry to buttress to buttress the on-going issuance of Certificates of Customary Ownership should be expedited.

Our present complicated system for taxation is unfair and has many faults. The biggest problem is to arrange it on a socially just basis. Many companies employ their workers in various ways and pay them diversely. Since these companies are registered in different countries for a number of categories, the determination the criterion for a just tax system becomes impossible, particularly if based on a fair measure of human work-activity. So why try when there is a better means available, which is really a true and socially just method?

Adam Smith (“Wealth of Nations”, 1776) says that land is one of the 3 factors of production (the other 2 being labor and durable capital goods). The usefulness of land is in the price that tenants pay as rent, for access rights to the particular site in question. Land is often considered as being a form of capital, since it is traded similarly to other durable capital goods items. However it is not actually man-made, so rightly it does not fall within this category. The land was originally a gift of nature (if not of God) for which all people should be free to share in its use. But its site-value greatly depends on location and is related to the community density in that region, as well as the natural resources such as rivers, minerals, animals or plants of specific use or beauty, when or after it is possible to reach them. Consequently, most of the land value is created by man within his society and therefore its advantage should logically and ethically be returned to the community for its general use, as explained by Martin Adams (in “LAND”, 2015).

However, due to our existing laws, land is owned and formally registered and its value is traded, even though it can't be moved to another place, like other kinds of capital goods. This right of ownership gives the landlord a big advantage over the rest of the community because he determines how it may be used, or if it is to be held out of use, until the city grows and the site becomes more valuable. Thus speculation in land values is encouraged by the law, in treating a site of land as personal or private property—as if it were an item of capital goods, although it is not (see Mason Gaffney and Fred Harrison: “The Corruption of Economics”, 2005).

Regarding taxation and local community spending, the municipal taxes we pay are partly used for improving the infrastructure. This means that the land becomes more useful and valuable without the landlord doing anything—he/she will always benefit from our present tax regime. This also applies when the status of unused land is upgraded and it becomes fit for community development. Then when this news is leaked, after landlords and banks corruptly pay for this information, speculation in land values is rife. There are many advantages if the land values were taxed instead of the many different kinds of production-based activities such as earnings, purchases, capital gains, home and foreign company investments, etc., (with all their regulations, complications and loop-holes). The only people due to lose from this are those who exploit the growing values of the land over the past years, when “mere” land ownership confers a financial benefit, without the owner doing a scrap of work. Consequently, for a truly socially just kind of taxation to apply there can only be one method--Land-Value Taxation.

Consider how land becomes valuable. New settlers in a region begin to specialize and this improves their efficiency in producing specific goods. The central land is the most valuable due to easy availability and least transport needed. This distribution in land values is created by the community, after an initial difficult start and not by the natural resources. As the village and city expand, speculators in land values will deliberately hold potentially useful sites out of use, until planning and development have permitted their site-values to grow. Meanwhile there is fierce competition for access to the most suitable sites for housing, agriculture and manufacturing industries. The limited availability of useful land means that the high rents paid being by tenants make their residences more costly and the provision of goods and services more expensive. It also creates unemployment when entrepreneurs find the rents too high for them to operate and employ workers. This speculation causes wages to be lowered by the monopolists, who control the big producing organizations and whose land was previously obtained when it was cheap. Consequently this basic structure of our current macroeconomics system, works to limit opportunity and to create poverty, see above reference.

 

The most basic cause of our continuing poverty is the lack of properly paid work and the reason for this is the lack of opportunity of access rights to the land on which the work must be done. The useful land is monopolized by a landlord who either holds it out of use (for speculation in its rising value), or charges the tenant heavily in rent for its right to access. In the case when the landlord is also the producer, he/she has a monopolistic control of the land and of the produce. The product becomes more costly--this monopolist can effectively charge more for it, than what an entrepreneur normally would, were he/she able to compete on an equal basis, because of the excessive rent demanded by the landlord.

 

A wise and sensible government would recognize that this problem derives from lack of opportunity to work and earn. It can be solved by the use of a tax system which encourages the proper use of land and which stops penalizing everything and everybody else. Such a tax system was proposed almost 140 years ago by Henry George, a (North) American economist, but somehow most macro-economists seem never to have heard of him, in common with a whole lot of other experts. (I would guess that they don't want to know, which is worse!) In “Progress and Poverty” 1879, Henry George proposed a single tax on land values without other kinds of tax on produce, services, capital gains, etc. This regime of land value tax (LVT) has 17 features which benefit almost everyone in the economy, except for landlords and banks, who/which do nothing productive and wrongly find that land dominance has its own reward.

 17 Aspects of LVT Affecting Government, Land Owners, Communities and Ethics

 

Four Aspects for Government:

1. LVT, adds to the national income as do all other taxation systems, but it can and should replace them. 

2. The cost of collecting the LVT is less than for all of the production-related taxes—then tax avoidance   

     becomes impossible because the sites being taxed are visible to all.

3. Consumers pay less for their purchases due to lower production costs (see below). This creates

     greater satisfaction with the government’s management of national affairs.

4. The national economy stabilizes—it no longer experiences the 18 year business boom/bust cycle, due

    to periodic speculation in land values (see below).

 

Six Aspects Affecting Land Owners:

5. LVT is progressive--owners of the most potentially productive sites pay the most tax. 

6. The land owner pays his LVT regardless of how his site is used. When fully developed, a large   

    proportion of the ground-rent from tenants becomes the LVT, with the result that land has less sales-

    value but a significant "rental"-value (even when it is not being used).

 7. LVT stops the speculation in land prices and any withholding of land from proper use is not

    worthwhile. 

8. The introduction of LVT initially reduces the sales price of sites, (even though their rental value can

    still grow over long-term use). As more sites become available, the competition for them becomes less

    fierce so entrepreneurs are more active.

9. With LVT, land owners are unable to pass the tax on to their tenants as rent hikes, due to the reduced

    competition for access to the additional sites that come into use.

10. With LVT, land prices will initially drop. Speculators in land values will want to foreclose on their

      mortgages and withdraw their money for reinvestment. Therefore LVT should be introduced

      gradually, to allow these speculators sufficient time to transfer their money to company-shares etc.,

      and simultaneously to meet the increased demand for produce (see below). 

 Three Aspects Regarding Communities:

11. With LVT, there is an incentive to use land for production or residence, rather than it being unused. 

12. With LVT, greater working opportunities exist due to cheaper land and a greater number of available

      sites. Consumer goods become cheaper too, because entrepreneurs have less difficulty in starting-up

      their businesses and because they pay less ground-rent--demand grows, unemployment decreases. 

13. Investment money is withdrawn from land and placed in durable capital goods. This means more

      advances in technology and cheaper goods too.

  

Four Aspects About Ethics:

14. The collection of taxes from productive effort and commerce is socially unjust. LVT replaces this

      extortion by gathering the surplus rental income, which comes without any exertion from the land

      owner or by the banks--LVT is a natural system of national income-gathering.

 15. Bribery and corruption on information about land cease.  Before, this was due to the leaking of

       news of municipal plans for housing and industrial development, causing shock-waves in local land

       prices (and municipal workers' and lawyers’ bank balances). 

16. The improved and proper use of the more central land reduces the environmental damage due to a)

      unused sites being dumping-grounds, and b) the smaller amount of fossil-fuel use, when traveling

      between home and workplace.

17. Because the LVT eliminates the advantage that landlords currently hold over our society, LVT

      provides a greater equality of opportunity to earn a living. Entrepreneurs can operate in a natural

      way-- to provide more jobs. Then earnings will correspond to the value that the labor puts into the

      product or service. Consequently, after LVT has been properly introduced it will eliminate poverty

      and improve business ethics.

Zambians can only start benefitting from land resource which has been affecting their multifaceted competing interests. The revision of the national land policy will provide a favourable environment for the country to realise a diversified and resilient economy.

The seriousness by the ministry of Lands to this important policy can be commendable because many stakeholders have for a long time been complaining about the weaknesses in the administration  of land in this  country.

In its current form, the land administration system leaves little room for the empowerment of citizens, especially the poor and vulnerable rural communities. The dual legal framework, which provides for both statutory and customary tenure, has contributed to the gap for the ordinary citizen     to access land. The current Constitution vests land in the republican President, but also allow chiefs to hold and administer    customary land in trust.

Under the current laws, the traditional leaders are only allowed to allocate up to 250 hectares, beyond which they have to involve Government, through the Ministry of Lands and Natural Resources           and      its        agents, the            local     authorities.

However, because of weak provisions in both the policy and statute, some chiefs have been allocating huge chunks of land to mainly foreigners in exchange for peanuts.

Hundreds of their poor subjects, who do not have the economic muscle to take on the rich foreign investors, have therefore been displaced from land they have occupied and tilled for decades.

Oftentimes Government regards traditional leaders as partners in social and economic development, the erring chiefs have gone scot-free while their hapless subjects have remained displaced    for       good. This       has            exacerbated     and      perpetuated     rural poverty. In the absence of a clear land policy that strikes a balance between the needs of the rich investors and the local people, confusion and blatant exploitation of the poor continue to characterise the administration of the land natural resource, both in rural and urban areas.

The full operationalisation of the policy will pave the way for citizen-centred amendments to land-related            statutes                        as         well.

There are still barriers denying women opportunities to own land, which the land policy must help            resolve. The policy should have clear provisions for affirmative action such as quotas for women and the youth if the current inequalities in land ownership are to be narrowed and ultimately closed in Zambia especially in rural areas where much land in under customary tenure.

Will be pleased to participate in this confeence. One of interest areas is farmers-herdsmen land conflcits in Nigeria. I am also interested in sustaiable land use and development as well as land grabbing in Northern Nigeria by the Chinese . I have written a few papers on land governace in Asia as in the case of FELDA in Malaysia- where less public sector corruption or if you like good planning keeps lannd corruption at bay creates unlimited lad value chain for the poor please see my paper on this link: https://www.sciencedirect.com/science/article/abs/pii/S0264837716301946.  Corruption as played big role in exacerbating land conflcits between faming and pastoralist communities please see my work enttitled:Ignoring the Core of the Matter: Why Strategies for Controlling Perennial Farmers-Herdsmen Land Conflicts are Ineffective in Nigeria? at https://www.researchgate.net/publication/326838937_Ignoring_the_Core_of_...

Question 1: What are the challenges in implementing a dispute resolution system in Kenya and Ghana?

Alternative dispute resolution is now recognized in the Kenyan legal framework, through article 159 of the Constitution of Kenya 2010 and the scope widened under Article 189. 

Before colonialism, most communities in Africa and in Kenya had their own dispute resolution mechanisms. The institution of ‘Wazee’ exist in different names in most communities in Kenya (Muigua, K.  2015). Disputes in land include boundary disputes, ownership, land use conflicts and succession issues etc.

The challenges in the use of ADRs identified include lack of capacity in terms of personnel who can handle disputes under ADR.  Secondly there also lack of understanding.  Thirdly, the need to go back to courts for enforcement makes it a longer process of dispute resolution than was envisaged. Lack of awareness of the public on ADR methods has also been seen as a challenge.

Publics’ perceptions and ignorance on the existence of Alternative Dispute Resolution Mechanisms in the present form. Majority of the members of the public are largely unaware of ADR as a legal system as opposed to their traditional or informal understanding. Very few are familiar with ADR, the publics mostly are aware of Traditional Disputes Resolutions which largely focuses on family matters.

Poor enforcement of decisions.

The model of land ownership has been one dominated by cultural norms and practices that are heavily patriarchal, rigid and subconsciously enforced within communities. Customary land laws discriminate against women, and generally the political will to protect women’s land and property rights and interests is non existent. The Government has tended to pay lip service to women’s land and property rights, but in practice, the reality is that most women are left to fend for themselves. Women are most disadvantaged in succession matters and whenever crucial decisions on land ownership are being made. Efforts to address the current state of affairs have dwelt on policy and legislative reform. Addressing the deeply seated cultural norms that place men at the heart of decision making on land matters is therefore critical.

Question 2: How to guarantee the access to justice for vulnerable communities?

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Make sure that the Constitution and other legislation are followed to the letter.

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.

Even though Section 12(1) of the Land Title Registration Law, 1986, PNDCL 152 makes it clear that no action concerning any land or interest in land in a registration district shall be commenced in any court until the procedures for settling disputes under the Law has been exhausted, for whatever reasons, the dispute resolution has never worked.  The law [Sections 12(1), 13(2) 21(2) 22(3) and (4)] grants exclusive jurisdiction at the first instance to the Land Title Adjudication Committees over disputes relating to registration of or interest in land.  Unfortunately the Land Adjudication Committee has never been allowed to function as a result of insincerity on the part of those who should have seen to their establishment. 

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.

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.

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. 

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.