Land Reform Monitoring and Evaluation in Mozambique
Christopher Tanner
FAO Senior Technical Advisor,
Land and Resources Legislation and Policy
Centre for Juridical and Judicial Training
Ministry of Justice
Maputo
Introduction
This paper presents some alternative ideas on how to monitor the process of land reform in Mozambique. While accepting the need to maintain a focus on hard data – number of households involved, areas covered, number of land certificates issued, etc – the paper also argues for a process of community based ´participatory monitoring´, whereby local people who are the intended beneficiaries of the reform can track how things are going and report back to both official and other (civil society) formal ´monitors´. The paper begins with some background to the widely and well regarded 1997 Land Law, and outlines some of current issues surrounding its implementation. It then discusses the monitoring issue in terms of both more formal processes – indicators used by the Land Administration and the included in government programme instruments – and the more informal or local level process that is being proposed here.
Background
The 1997 Land Law of Mozambique was developed after an extensive consultative process which involved a wide range of stakeholders[1]. It was preceded by a policy process which, while not quite so participatory, did take as its point of departure a thorough analysis of what was actually happening in the Mozambican countryside n the early post-war period (1992 - 1995). The Land Commission undertaking the policy review was also expanded to include eight other sectors apart from agriculture, which had a direct interest or role in land management.
The policy process was driven by government and donor concerns over the rising tide of land conflicts in the post-Civil War era from 1992 onwards, as investors and others sought to occupy land that was apparently abandoned or under used. Existing legislation at the time was founded on the Constitutional principle that radical title in land belongs to the State, while recognizing the use rights of those who were actually using the land in some way. This left the majority of local people extremely exposed to land grabbing, as they were unable to put their land back into production or had not yet returned from exile or displacement.
The Commission consulted research papers and reports from technical institutes and ongoing agricultural programmes to produce a policy that responded to the land management needs of most ordinary Mozambicans. The principle of State ownership of land remained unchanged in the new 1990 Constitution that ushered in multiparty democracy and set the stage for a full transition to a market economy[2]. But the policy – approved in September 1995 and still in force - included mechanisms for promoting new investment and the transmission between third parties of the State allocated Land Use and Benefit Right (or DUAT, to use its Portuguese acronym). The policy also established that land management had to adhere to principles such as gender equality, equity, and environmental sustainability.
The 1997 Land Law has achieved varying levels of success in its ten years of existence[3]. A Commemorative Conference in October 2007 also reaffirmed the wide popular support the law still enjoys, and its continuing validity in a country where customary rights may enjoy full legal protection but are still vulnerable to capture and enclosure. A recent assessment of the law based on wide ranging interviews with many stakeholders and interest groups also came to a similar conclusion[4], underlines the fact that since it was approved, the law has held back a massive rural – urban shift, put a brake on land grabbing, and avoided the emergence of a landless class and serious land-based conflict in Mozambique.
Other aspects of implementation require serious attention however, and evidently the country has changed substantially since 1997. There have been many calls over recent years to bring the law into line with a rapidly growing market economy. In this context the issue of monitoring the reform process is critical, firstly to ensure that the initial objectives of the 1995 policy reform are being achieved, and secondly to ensure that any proposed changes are not simply a response to poor implementation, but reflect the real needs of all sectors and interest groups.
Land policy and law: objectives and main features
The 1995 policy and the 1997 law have been widely and positively commented on. The central feature of the new policy and legal framework was the recognition of customary and unopposed ‘good faith’ occupation as two ways in which a State DUAT could be acquired (the third, applicable to all investors and foreigners, is a formal request to the State for a new DUAT) . It is therefore not a distributive land reform, but a tenure reform that gives due recognition to forms of tenure that otherwise would remain invisible, not formalized in any way, and insecure.
This important provision ‘at a stroke’ formalized the thousands of customarily acquired land rights held by the vast majority of the population, and gave them full legal equivalence to the DUAT.
In a similar vein the law recognized the role of customary systems as the de facto land management system for most Mozambicans. This gives local land chiefs and customary structures the right to allocate DUATs within their areas of jurisdiction. Given the difficulties associated with conventionally surveying and titling the many bundles of individual and collective local rights, these ´areas of jurisdiction - customary land holding and management systems - were designated as ‘ local communities’. Each community is given its own collective DUAT, and the many smaller DUATs within the community are then left to its own structures to manage.
Local communities were also given a key role in allocating new DUATs to investors. Through the ‘community consultation’ mechanism, outsiders must consult with community representatives to check if the land they want is free: if it is occupied – and it usually is - they then have to negotiate terms through which the community will give up its DUAT, or otherwise allow the investor access to their land and resources.
For investors and others, the DUAT is legally equivalent to a secure and transferable long term leasehold (50 years renewable for a further 50 years). Unlike local communities and their members, who are not legally obliged to register their rights, holders of DUATs acquired through formal request to the State must register their rights after a rigorous surveying process which is time consuming and expensive. At this point they are given a Title document, or Title of DUAT.
The law explicitly states that for those whose rights are acquired by occupation, the absence of a Title or formal registration does not prejudice their right in any way, and indeed this existing right prevails over any other claim which is not supported by the required consultation and community consent.
The Land Law Regulations provide a mechanism that allows local rights to be collectively identified and grouped within a specific local community. This is called ‘delimitation’, and involves a participatory field methodology in which local communities in effect define themselves and establish their borders with neighbouring communities. The resulting map of the community borders is officially recorded and Certificate of Delimitation issued. This much lower cost approach is practical – it still leaves the task of local land management to local structures – and provides a quick and flexible form of cadastral formalization that reinforces the legal protection already enjoyed by local communities and their members.
The Technical Annex detailing the methodology requires it be done when new projects and investments are planned, or where there are existing conflicts. Applied correctly, it is then seen as a pre-emptive or demand driven form of cadastral formalization, in situations where local rights might be at risk from rising land demand and new investor (and State) projects.
It follows from all of this that monitoring of the reform process requires several key areas to be tracked and recorded:
- the extent to which consultations are carried out and whether or not these are carried out well and in line with the provisions of the law
- the extent to which local rights are respected when new DUATs are allocated
- the extent to which local rights are being delimited and recorded, as demand for land rises and
- the extent to which all existing DUATs, however acquired, are taken into account and, where necessary, recorded in official databases
- the effectiveness or otherwise of implementation by the land administration services and other related sectoral agencies and partners
The Land Law must also be set within the wider framework of other new legislation that sets other important conditions for the way land and resources are used. Of particular importance are the Forest and Wildlife Law (1999), the Environmental Law (1997), and the Tourism Law (which defines ‘tourism areas’ in which rights can be subjected to a range of planning and development conditions), and the more recent Territorial Planning Law (2006). In addition there are many regulatory instruments, amongst which is the innovative provision that requires 20 percent of public revenues from commercial forest and wildlife exploitation to be allocated to local communities.
Monitoring the land reform should then include measures that track the community consultation and management role in the forest and wildlife context, the application of EIA requirements when new DUATs are requested, and the allocation (or not) of the 20 percent of revenues as required by law. Moreoever, if the goal is to assess the reform process, some measure of impact must also be included.
Land reform: progress to date
The reality is that there have been few systematic efforts over the last ten years to directly monitor the impact of the land reform. Considering the points raised above, it is possible however to arrive at some general conclusions based on existing official data and other sources.
Consultations
It seems clear that practically all new DUAT applications do involve a community consultation. Indeed the National Directorate for Land and Forests (DNTF) asserts that this mechanism is both necessary, and sufficient, for protecting local rights in line with the requirements of the Land Policy. In this sense at least, the Law has achieved the major objective of enforcing awareness of local rights upon those who would access local land, and requiring them to take these rights into account when making their plans.
Anecdotal evidence from NGOs and small farmer groups suggest that consultations are rarely carried out well however, and that communities still end up losing their land for minimal if any real benefits in return for giving up their DUATs. Research by the Centre for Juridical and Judicial Training (CFJJ) of the Ministry of Justice in 2005[5] confirms this finding, and underlines the fact that consultas are rushed, do not allow for adequate internal consultation, and are rarely accompanied by detailed agreements that allow for systematic follow up and monitoring.
Delimitation
As the law does not require rights acquired through occupation to be registered, there is no pressure on either communities or the State to see that these rights are in fact given stronger protection over time. This is a growing problem in an economy enjoying growth of some 9 percent per annum, and in which there is surging investor demand for land and natural resources.
A report for DfID in 2003 carried out a systematic assessment of delimited DUATs, and found that at that time, some 180 communities had been delimited[6]. Of these, only 74 had achieved full official certification, with the community map recorded in the Cadastral Atlas. It is not clear how many local communities there are in Mozambique, but the number is certainly of the order of several thousand. Given that each delimitation will encompass hundreds or even thousands of individual and household DUATs, the lack of progress in this area is a matter of concern.
More recent data indicate that the number may have risen to some 300 communities. The number with full Certificates is likely to be far lower however, as provincial land services refuse to issue them on the grounds that there are unresolved conflicts in many areas, or on some other relatively minor technical point.
Implementation
Prevailing opinion is that Land Law implementation has been haphazard and that while the law has had a positive impact, this impact could have been many times greater had effective reforms been made to the public land services to enable them to implement the new law as it should have been implemented. With agriculture receiving less than 4 percent of the public budget, and land getting only a tiny proportion of that, it is clear that the resources available for effective Land Law implementation are simply not sufficient.
This conclusion was confirmed by the recent assessment referred to above, and most public officers will admit to this in private. The public land administration programme is however doing what it can to decentralize land services down to district level, and carry out an inventory of current land use and occupation (which does not necessarily equate to a survey of rights, it should be noted, unless the full definition of occupation as per the Land Law is used by the surveyors contracted to do this work).
All public pronouncements since the law was approved also show clearly that the official priority has been fast tracking and facilitating new DUAT requests by private sector investors (national as well as international). This reflects a perception amongst many senior politicians and civil servants that investment led job creation is the best way to reduce rural poverty. Community aspects of the Land Law – which as we have seen in fact involved the vast majority of land rights – are left to civil society organizations to deal with. Nearly all delimitation work is carried out by NGOs.