Immeasurably important? The development discourse eyes the rule of law

by Rhodri C. Williams

Its been a busy 18 months in my new rule of law gig, and an eye-opening time to boot. While the range of issues falling under the rule of law umbrella is impressive in principle, I have found myself inevitably stove-piped in practice, with my housing, land and property (HLP) interests finding expression mainly in sporadic consultancies, and justice sector reform issues suddenly front and center in my professional life. Not that I am complaining, mind you.

Judicial reform is just another lens on the whole muddle of good intentions and mixed results I was approaching earlier mainly from a humanitarian perspective, and a change of perspective can be refreshing. I also expect that as I proceed down the rule of law road, I will have opportunities to unpack more and more of my HLP baggage along the way. But for now, it is very interesting to have at least a back row seat on the evolving definition of rule of law and how it relates to broader development assistance efforts.

Recently, a colleague (who I will hat-tip if she likes this post) sent me links to a pair of pieces that helped to crystallize some of the recent debates in this area in my own mind. The first was to a recent Washington Post op-ed by Gary A. Haugen of the International Justice Mission. Haugen describes the explosion of private security companies in the developing world and the extent to which this has resulted in a monopoly on protection from violence for the rich:

As elites abandon the public security system, their impoverished neighbors, especially women and girls, are left relying on underpaid, under-trained, undisciplined and frequently corrupt police forces for protection and all-but-paralyzed courts for justice. ….

When a justice system descends into utter dysfunction, those who exploit and abuse vulnerable people may do so without fear of apprehension or prosecution. As a result, violence is an everyday threat, as much a part of what it means to be poor as being hungry, sick, homeless or jobless.

Interestingly, this piece also exposes the great home truth about the ‘civil and political’ rights traditionally protected by judiciaries. Exclusive proponents of such rights (in countries ranging from the US to Sweden) have often lauded them for being ‘negative’ (in the sense that they involve government duties to refrain from taking actions), and therefore ostensibly cost-free to taxpayers.

This in contrast to social and economic rights, which are ‘positive’, entailing affirmative government actions (and expenditures), and therefore often decried as an unwarranted intrusion in the inherent right of governments to roll the pork barrels toward whichever constituency they choose. In the present case, the lurch toward private security has at least laid bare the extent to which courts actually represent a highly expensive ‘positive’ guarantee necessary for the equitable protection of any kind of rights.

Land and Post-Conflict Peacebuilding: Customary governance, property rights, and state building in Afghanistan

by Jennifer Brick Murtazashvili

Jennifer Brick Murtazashvili is assistant professor at the Graduate School of Public and International Affairs at the University of Pittsburgh. She recently completed The Political Economy of Customary Governance: Informal Order and State Building in Rural Afghanistan (under review), and is finalizing Land, the State, and War (with Ilia Murtazashvili), on how conflict over property rights has shaped the trajectory of the Afghan state. She also co-authored “Community Documentation of Land Tenure and its Contribution to State-building in Afghanistan” in Land and Post-Conflict Peacebuilding with J.D. Stansfield, M. Y. Safar and Akram Salam, and provides an update in this guest posting.

Conflict over land is one of the most important, yet poorly understood, drivers of instability in rural Afghanistan. The Taliban, for example, has been active in trying to establish its credibility and authority as reliable mediators of land conflict as it competes with the Karzai government for legitimacy.

The solution offered by the international community to the problem of tenure insecurity is the promotion of formal, state-backed legal titles. The chapter I authored with J.David Stanfield, Yasin Safar, and Akram Salam, “Community Documentation of Land Tenure and Its Contribution to State-Building in Afghanistan,” suggests that customary forms of land titles may be more effective in promoting the legitimacy of the state than by simply issuing formal government deeds.

The state has very little credibility with most Afghans as it is largely viewed as a source of corruption rather than governance.  This is not to say that Afghans do not want government. On the contrary, many Afghans are in demand of government but want to have little to do with formal state authority as it is currently exercised.

Thus, current efforts to promote property rights by promoting an extension of state authority in Afghanistan are not viewed by many Afghans as a viable solution. Instead, by making them more dependent upon a corrupt state, property rights based on state-issued legal titles may threaten, rather than enhance, tenure security in Afghanistan. This is largely due to the fact that many Afghans, especially those in rural areas, rely primarily upon customary mechanisms for the mediation of land disputes.  Furthermore, as Doug Batson suggests in his chapter in the volume, formal land titles often fail to adequately account for forms of customary land tenure.

One of the reasons efforts to extend state authority in rural Afghanistan have struggled, is because state-builders (both in the international community and some in the Afghan government) view the relationship between customary authority and the state in zero-sum terms.

While some analysts of Afghanistan have argued that that customary governance has withered away, my own fieldwork has shown that such structures remain quite strong but have changed over time to adapt to new circumstances in the country. Due to war and displacement, customary structures are actually more representative and democratic than they had been in the past.

Empowering communities to document and protect their land claims: A solution to the global land grab?

by Rachael Knight

Rachael Knight is the Program Director of the Community Land Protection Program at Namati, a new global legal empowerment organization, and author of its recent report on community land titling. She previously served as Director of the International Development Law Organization’s (IDLO) Community Land Titling Initiative, working to document and protect the customary land rights of indigenous groups in Uganda, Liberia and Mozambique.

Community meeting in Uganda (photo credit Namati)

For billions of rural people, land is their greatest asset: the source of food and water, the site of their livelihoods, and the locus of history, culture, and community. Yet more than ever, rural land is in demand. In recent years, governments in Africa have been granting vast land concessions to foreign investors for agro-industrial enterprises and forestry and mineral exploitation. According to recent data, transactions covering at least 57,393,083 hectares of land have been granted or are under negotiation.  Often, governments grant concessions with the goal of stimulating development and strengthening the national economy. Yet such concessions are further exacerbating trends of growing land scarcity and weakening the land tenure security of rural communities.

Even when communities welcome private investment, they may not be consulted about the terms of the investment, properly compensated for their losses, or given a say in land management after the investment is launched. Alternatively, such investments may be undertaken in ways that lead to environmental degradation, human rights violations, loss of livelihoods, and inequity. In this context, protections for rural communities and their lands are urgently needed.

In some countries, national laws allow communities to register or title their lands as a whole and then manage their land according to local needs and interests. Such community land documentation processes – which document the perimeter of the community according to customary boundaries – are a low-cost, efficient and equitable way of protecting communities’ customary land claims. Community land documentation efforts not only protect large numbers of families’ lands at once, but also the the forests, water bodies, and grazing areas that rural communities depend on to survive and are often the first to be allocated to investors, claimed by elites, and appropriated for state development projects. Importantly, formal recognition of their customary land claims gives communities critical leverage in negotiations with potential investors.

However, because these laws transfer control over valuable lands and resources away from the state and into the hands of the community members themselves, governments have so far dragged their heels in implementing them. For example, in the 14 years since the passage of Uganda’s Land Act (1998), not one Ugandan community has yet gained title to its customary lands.

Investment-related conflict in South Sudan: contested rights and the power of information

by David Deng

David Deng is Research Director for the South Sudan Law Society. These observations were originally presented at “Turning Point: What future for people and resources? A panel on the trends shaping rural lands and lives” on February 1, 2012 at The Royal Society of London.

Introduction

The new report by Rights and Resources Initiative (RRI) paints a vivid picture of a world in flux and the various struggles that are emerging over wealth, power, and natural resources. I’d like to pick up on a couple of these themes and flesh them out a bit with examples from South Sudan, where I’ve worked for the past few years on several projects relating to land rights. Most recently, my work has touched on the surge in land-based investment after the 2005 peace agreement, which brought to an end the 22-year civil war between north and south in Sudan.

Investment and conflict

The first issue that I’d like to touch on is the complex relationship between investment and conflict in resource-rich states. I think it is fairly clear to us all that poorly planned investments can contribute to conflict, particularly in fragile, post-conflict states; but what is perhaps a little less obvious is how conflict can actually serve to attract certain types of investment.

Let me explain. Struggles over land and natural resources were among the root causes of the civil war in South Sudan. Foreign investments during this period often contributed to the violence. Oil companies colluded with the government in Khartoum to forcibly displace local populations from oil producing areas, in order to make the land available for oil exploration. Armed groups in South Sudan used local monopolies of violence to control cross-border trade in precious woods.

And in the Nuba Mountains along the border between north and south, where today, we hear reports of mass killings and hundreds of thousands of people at risk of conflict induced-famine, the government expropriated community lands and gave them to foreign and domestic elites in order to establish large-scale mechanized farms. The disregard that Khartoum showed for their community lands caused many Nuba to join the liberation movement in the south. What followed was a long and costly civil war that eventually resulted in the secession of South Sudan.

But with its newfound independence, South Sudan finds itself in a harsh new world. It has a population of only 8 or 9 million, spread across a land area more than twice the size of the UK, considerable supplies of oil and minerals, fertile land and water; all this makes South Sudan an attractive prize in a resource-strapped world.

Proposals to allow private ownership of First Nations’ land spur debate in Canada

by Anneke Smit and Gloria Huh

Anneke Smit is Assistant Professor in the Faculty of Law, University of Windsor, Canada.  She is the author of The Property Rights of Refugees and Internally Displaced Persons(Routledge, forthcoming 2012) and co-editor of Private Property, Planning and the Public Interest (UBC, forthcoming 2013).  Gloria Huh will graduate in 2012 from the JD program at the Faculty of Law, University of Windsor. She has been involved in the promotion of housing rights for low-income individuals and families with the Hamilton Housing Help Centre and Legal Assistance of Windsor.

In a recent TerraNullius post, Rhodri Williams expressed optimism over Aboriginal participation in Canadian legislative processes, lauding Aboriginal leaders for engaging with the larger Canadian political system to better the position of their people.  Certainly it is positive that federal and provincial governments are engaged on an ongoing basis in land claims negotiations.  Further, a steady stream of judicial decisions (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103.) continues to refine the nature of the relationship between the Canadian government and the country’s Aboriginal peoples.

Not all is well however.  Tensions on the subjects of housing and property rights on native reserves as between the federal government and native leaders are ongoing.  Hundreds of land claims remain unsettled, which has sometimes resulted in violent clashes.

Most recently the story of the wretched housing conditions on the Attawapiskat reserve in northern Ontario broke in late November 2011 and monopolized domestic Canadian news sources for weeks, reopening debate about Canada’s treatment of its aboriginal peoples.  Commentary has been voluminous and has focussed attention not only on Attawapiskat but on housing and property rights (and socio-economic conditions more generally) on reserves across Canada.  The Conservative government of Prime Minister Stephen Harper has been roundly criticized for its failure to address the Attawapiskat crisis earlier while negotiations between band leaders and government officials have been riddled with accusations of misinformation and miscommunication.

This media attention has provided an opportunity for advocates of a new approach to private property rights on reserves in Canada to gain public and government support for their position.  To date aboriginal title in Canada has been defined as a collective right (see for example the 1997 Supreme Court of Canada decision in Delgamuukw).  While the Indian Act allows for individual possession of reserve land, no private ownership of reserve lands has been permitted.  The proposed Act would change that.

The Nisga’a of British Columbia made history in 2009 when the band’s legislature passed a law allowing private ownership of band lands as part of their self-governance arrangement.  While this process is still in its early stages it is moving ahead both in effecting necessary legislative amendments and conducting public education sessions in affected communities.

While the Nisga’a development was one initiated at the band government level, some analysts in Canada have been advocating for such moves on a larger scale for some time.  University of Calgary political scientist Tom Flanagan, along with Manny Jules, head of the First Nations Tax Commission have long argued that private property ownership should be available for reserve lands.  Their arguments are classic de Soto, focussed on improving economic power through the exercise of private property rights.  They are now leading the push for a federal government-led legislative reform which would allow private ownership on reserves across the country.  The proposal was front-page news in Canada in mid- December and parliamentary hearings in 2012 will consider the proposed First Nations Property Ownership Act.

To be clear there is strong opposition to the proposals from a number of factions including many aboriginal leaders.  A similar proposal was soundly defeated by aboriginal chiefs in 2010 and it is not likely that the appetite of aboriginal leaders for such proposals will have changed, even in the wake of Attawapiskat.  But given the interest of the majority Conservative government, it is certain that Canadians will see a vigorous debate on aboriginal property ownership at the very least.

Understanding the outcomes of customary justice: implications for land practitioners

by Erica Harper

The international community has traditionally concentrated its legal development activities on the reform of formal justice sector institutions: the courts, legislature, police and correctional services. As it has become clear that these approaches have been relatively unsuccessful in improving access to justice for poor and disadvantaged populations, attention has shifted to the role that customary justice systems might play in the programming of governments, international organizations and NGOs operating in development, post-conflict or post-disaster contexts. A strong argument can be put forward that, in most developing countries, the state cannot provide justice services to its entire population and it might not be the most cost-effective provider of these services. Moreover, part of the reason that customary systems exist is due to shortcomings in formal justice systems.

Sometimes these shortcomings are connected to issues of physical access or dysfunctions such as discrimination or corruption; they can also be because state justice fails to respond to the needs and social imperatives of disputants in the way that the customary system does. Such arguments have influenced the rule of law programming strategies of many organizations. A review of the current policy and programmatic landscape reveals a growing consensus that, despite some obvious challenges, excluding customary justice systems from reform strategies may not be the best approach for enhancing access to justice and protecting the rights of vulnerable groups. There is a growing appeal for strategies that aim to improve the quality of outcomes resolved at the community level by building on the positive aspects of customary systems, particularly their reach and popularity, and attempting to reform negative practices.

But while there is now greater consensus around the issue of engaging with the customary sector, programmatic guidance on how this should occur remains scant. Moreover, partnering with customary justice systems raises new and important concerns. Principally, how can customary systems be supported while at the same time ensuring that this does not equate with a recognition or formalization of rights-abrogating practices? Such concerns have arguably led to technocratic ‘fix it’ programming, such as reforming customary laws to strengthen procedural or substantive protections, or modifying the state-customary interface with a view to regulating or harmonizing the two frameworks. This is problematic because where customary norms do not align with international human rights standards, there are often complex rationales in play, touching upon issues such as culture, socio-economic factors and security. Approaches that concentrate on bringing customary systems into alignment with international norms can thus be, at best ineffective and at worst harmful.

A further concern is the gap between the proliferation of customary justice programs and the evidence and knowledge base on which such programming is grafted. There have been few comprehensive or empirically driven efforts that reflect on or evaluate the impact of past programming efforts. Nor has there been sufficient critical analysis of the objectives of customary justice programming: is the aim to support or supplement state courts, to act as a venue for a decentralization of state legal services, or to form part of a broader spectrum approach to accessing justice? One result is that development practitioners have tended to re-apply programs designed for use at the state level rather than craft activities specifically for use in customary contexts, and replicate activities perceived to have been effective elsewhere without a proper understanding of what conditions facilitated such results.

These questions promted the International Development Law Organization to conduct research into the impact of customary law programming in developing countries. This research culminated in two volumes: “Customary Justice: From Program Design to Impact Evaluation” and an edited volume: “Working with Customary Justice Systems: Post-Conflict and Fragile States”.

Guest-posting by Erica Harper on new IDLO customary justice books

I am very pleased to announce that Erica Harper, Senior Rule of Law Advisor at the International Development Law Organization (IDLO), will shortly be guest-posting at TN. The topic will be a set of three books recently released by the IDLO on customary justice (all of which are available for free download as .pdfs at the above link). In her posting, Ms. Harper will address both the general issues explored by the volumes and their specific implications for land practitioners.  A little further ahead, we are looking forward to guest-postings by Rachael Knight, a contributor to the customary justice books and manager of an IDLO project on Community Land Titling that just released reports related to Liberia, Mozambique and Uganda.

Work with customary norms and community-level institutions reflect both the potential and the complications inherent in housing, land and property (HLP) work in a world where development expertise has destabilized some of the late 1990s certainties reflected in documents such as the Pinheiro Principles – but without necessarily replacing them with new ones. They are also burningly relevant as the agrarian communities most dependent on land find themselves increasingly threatened by large-scale investment and natural resource concession trends.