Draft Land Rights Policy Statement by the Land Commission of Liberia

by Caleb Stevens

Caleb Stevens is a John Snow Institute Liberia Fellow who works with the Republic of Liberia Land Commission

The Liberian Land Commission has just released a draft Land Rights Policy Statement for public consumption. It is the first such policy in Liberia’s history and creates four fundamental land tenure categories: Government Land, Public Land, Customary Land, and Private Land. In addition, it provides for Protected Areas across these categories to be conserved and managed for the benefit of all Liberians. The Policy also touches on issues of land management, use, and administration, with more detail to follow in separate Land Administration and Land Management Policies.

The document is still in draft form as consultations are getting underway, but you may access the Policy by clicking on this link (pdf).

Comments or questions are welcome; please submit them via email to landcommissionpolicy@gmail.com.

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.

Someday, none of this will be yours: the predatory state eyes ‘public’ land

by Rhodri C. Williams

In trying to keep track of even a fraction of the local and regional flare-ups over land rights these days, I keep thinking back to times when I was working in Bosnia and a  particularly infected property dispute would come up in the course of the restitution process. My colleague Charles P (one of the unsung geniuses behind the famous ‘PLIP‘) would shake his head wearily and mutter the climactic phrases of a classic quote from Gone with the Wind:

Why, land is the only thing in the world worth working for. Worth fighting for, worth dying for. Because it’s the only thing that lasts.

It has long been understood that land is fundamental to the material needs and identity of just about anyone not yet caught up in the great wave of urbanization that characterizes our time (as well as many of those who have). The Endorois decision by the African Commission on Human and Peoples’ Rights also represents the latest in a long line of affirmations that recognition of the rights of those with longstanding claims to land through use and attribution is a precondition for them to participate in the life of the state on equitable terms.

It has also long been axiomatic that states retain the final word on land use, and that even where formal nationalization never took place, post-colonial states often inherited – and maintained – laws that held all land not formally owned in a state of inchoate expropriation. Shaun Williams writes on the ongoing challenges presented by ‘state land’ administration in post-colonial urban settings in a recent TN guest-posting, while Liz Alden Wily describes the rural consequences of the ‘public land’ problem in a pithy contribution to ODI’s 2009 research on land and conflict issues.

After the Cold War, the notion that individual and community rights to land might come to be seen as on a par with the state claims to eminent domain were buoyed on the rising tides of human rights and human security. Even if few dared to go as far as to posit a general right to land, there was a sense that policy was pointing in a protective direction. The rise of the post-conflict restitution discourse as symbolized by the Pinheiro Principles has been one example. Another has been the tendency for development standards and instruments to give property rights greater prominence. For instance, The Atlantic recently inferred a paradigm shift in international views on property rights from the post-Cold War proliferation of bilateral investment treaties (BITs) incorporating protections of private property rights:

While the specifics often differ, many BIT provisions protecting foreign investments have become near universal. Both the Turkey-Turkmenistan and U.S.-El Salvador agreements protect foreign investments from direct or indirect expropriation, nationalization, or similar measures “except for a public purpose, in a non-discriminatory manner, upon payment of prompt, adequate and effective compensation, and in accordance with due process of law.” Some countries’ more recent BITs also contain provisions designed to protect environment, labor, public health, and other public policy concerns in addition to the property rights of foreign investors.

However, the Atlantic’s declaration of a post-Cold War “worldwide revolution in how we think about international law and private property” seems premature, precisely because the line between “private” and “public” property remains so heavily contested. Meanwhile, a host of new factors have pushed many states from simply maintaining the status quo (e.g. allowing their populations to continue using ‘state land’ largely unmolested but without the prospect of genuine tenure security) to active predation. The combination of a general economic downturn, rising food and commodity prices, and new forms of state-backed investment have led many states to put their hand in the cookie jar, allocating nationalized and public land to domestic and international investors at a handsome (and typically highly untransparent) profit.

However, the basic dependence and attachment of families and communities to land they consider their own remains, leading to what must be an unprecedented proliferation of sharp and often violent confrontations between states (particularly less representative ones where governments may stand for ethnic or economic elites) and their own citizens over territory. The problem is not limited to states that have nationalized their land or ‘inherited’ public land from prior colonial regimes. However, it seems particularly acute in such settings precisely because the ordinary devices for protecting property from state intrusion assume the prior grant or recognition of rights in such property. Where such rights were ostensibly extinguished by nationalizations or colonial declarations of public land, legality is shifted to the side of the state and communities with every possible equitable right to their land are implausibly – but legally – reframed as squatters.

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”.

Squatters, IDPs or both? Untangling urban displacement in Liberia

by Rhodri C. Williams

I’m happy to announce the release of a report I wrote (available for download here) for the Norwegian Refugee Council (NRC) Liberia Office based on recent fieldwork. The report focuses on the plight of the hundreds of thousands of people displaced to Liberia’s capital, Monrovia, during the 1989-2003 conflict who chose unassisted integration into local informal settlements over assisted return to their homes of origin elsewhere in the country.

In resisting the expectation that they would return by becoming urban squatters, these internally displaced persons (IDPs) dropped off the radar of many humanitarian actors. However, their continued presence – which may have effectively doubled the population of Monrovia – has become a development question as infrastructure projects, investors and returning landowners begin to place pressure on the Capital’s many slums. The significance and potential volatility of the issue is reflected in the Liberian Land Commission’s decision to prioritize urban land issues in 2011.

In this context, it is very much to NRC’s credit that they have recognized the continuing humanitarian implications of what had come to be viewed almost solely as a development challenge. To quote from my report, the issue of urban displaced squatters in Liberia can be seen a classic exercise in the emerging discipline of ‘early recovery’, or the attempt to design both relief and development measures in a coordinated and complementary manner:

Land in Liberia

by Rhodri C. Williams

I’ve had the privilege of working in Liberia over the last week with colleagues at the Norwegian Refugee Council’s legal advice and information program on post-conflict land and property issues, which, simply put, are legion. Fortunately, the national Land Commission set up to provide advice and chart out policy is both competent and committed, and some real political space exists for tackling the issues.

Problems related to displacement and return still exist. Although a return program for internally displaced persons run by a separate Commission has largely been completed, life outside the Capital is still heavily affected by land disputes that both predate and result from the conflict. In response, NRC’s country program has developed a mediation program meant to provide sustainable resolutions.

NRC has also sponsored a number of reports analyzing these programs and the context they operate in (bottom right on the country page), including Alexandre Corriveau-Bourque’s piece on land encroachment, launched last year on TN. More recently, a reporter sponsored by the International Reporting Project was assisted by NRC in developing an article providing an overview of the topic. Attention has also begun to refocus on land issues in the countryside in light of the new wave of refugees in northern Liberia fleeing conflict in neighboring Cote d’Ivoire.

Lurking behind these issues is the question of durable solutions for hundreds of thousands of people displaced by the past conflict in Monrovia who have been unable or unwilling to return. As I discussed in a previous post, some observers have called for greater return to the land in order to unlock the enormous untapped potential for commercial agriculture in the countryside. These calls reinforce a post-conflict emphasis on ‘decentralization’ of the country currently under discussion by the national Governance Commission (they also echo the post-quake strategy of investing in provincial towns in Haiti rather encouraging greater expansion of the capital).

By contrast, the main focus of my current work in Liberia has been to look at the question of how displaced persons now living in Monrovia’s many informal settlements can be assisted in achieving durable solutions in the form of local integration. In this sense, it involves a very practical application of some of the principles now emerging in the ongoing humanitarian discussion about protracted displacement. Most important in the context of Monrovia are questions related to security of tenure and the extent to which the decreasing humanitarian effort and the well-established development actors (national and international) can build on each others’ work.

Back from the property frontlines…

A quick administrative note to apologize for the recent gap in postings – in addition to a heavy workload, my family recently found itself faced with the need to vacate a sublet apartment on fairly short notice and we launched ourselves into the awesomely expensive and numbingly over-regulated Stockholm real estate market. I could start a whole blog on that, but suspect that interest may be limited! Suffice it to say that from now on, my philosophical ramblings on the nature of property rights will be infused with the elemental urgency of one who has just taken on a very large mortgage in a foreign currency with far too many zeros for anybody’s good.

Also, in followup to the recent guest posting by Alexandre Corriveau-Bourque on customary institutions and land conflict in Liberia, I would like to point out a recent article in IRIN, brought to my attention by Laura Cunial. The article notes that tensions over land in Liberia have not abated, with about 250 deaths since the end of the conflict attributed to disputes over land and property. It also points out that mediation and customary adjudication, for all the flaws identified by Alexandre in his report and posting, remain the only viable mechanism for the time being to containing such conflicts on the ground.

Liberia’s ‘Peace Imperative’ – can it undermine tenure security? An introductory commentary to the NRC report ‘Confusions and Palava’

by Alexandre Corriveau-Bourque

Since the end of the civil war in 2003, the Liberian government and the United Nations peacekeeping mission (UNMIL) have been working to stabilise the country and rebuild a functioning state. Despite their ability to (arguably) maintain political stability at the macro scale, the ability of the state to effectively intervene in localised problems is limited. Many of these localised disputes manifest themselves over land, as individuals return to their pre-war homes or resettle in an attempt to rebuild their lives and encounter a complex web of often conflicting claims on the same parcel.

This process is situated in a context of recent massive social disruption which indelibly altered the pre- war systems of authority that regulated access to land resources.  Since the judiciary can only intervene in the rare cases in which formal title deeds are involved, the state is limited in its ability to enforce the rule of law with regards to land relations.  As a result, individuals are predominantly reliant on customary and informal institutions to resolve disputes. For reasons articulated in a recent report from the United States Institute of Peace, many Liberians prefer to use mechanisms for informal mediation, even for disputes that could technically be handled by the courts.

However, the repeated displacement and return of populations has forced individuals and groups to forge new networks and relationships, giving rise to new opportunities to question or challenge the legitimacy of pre-war authorities. As such, while disputes may be between individuals, their ability to seek out alternative fora for a resolution that will satisfy them often brings multiple systems or networks into conflict with each other. The NRC report notes that opportunities for individuals to forum-shop increases as one gets closer to official cities in Lofa County. One means to secure contentious claims is through formal land title, which cannot necessarily be acquired in all parts of Lofa County. As one travels further away from the cities, customary authorities appear to command a stronger control over local communities’ land practices and relationships.

Release of NRC report on land disputes in Liberia – and guest blog by author Alexandre Corriveau-Bourque

TN readers are encouraged to check the Norwegian Refugee Council website starting tomorrow (Wednesday, 28 April) in order to access a new report on post-conflict land disputes in the context of legal pluralism in Liberia. The report, entitled ‘Confusions’ and Palava: The Logic of Land Encroachment in Lofa County, Liberia’ promises to make for some interesting reading:

As Liberia recovers from nearly a decade and a half of civil war, the largest obstacle to long-term stability remains the divisive issue of land. Using Lofa County as a case study, this study explores the conditions that produce land conflict and the mechanisms used to resolve them. Multiple waves of displacement, return and (re)settlement have significantly altered the many institutions that regulated access to land and land-based resources prior to the war. This has resulted in a range of tenure systems that are struggling to (re)establish themselves at a variety of scales. The very systems at play are undergoing intensive renegotiation from both internal and external forces.

This study argues that the competing discourses employed by the various systems of authority in Lofa County to legitimise/justify claims are creating opportunities for land encroachment, which is significantly reducing the security of tenure in this area. The perception of dispossession can lead to ‘confusions’ or palava, stages of a dispute that are generally being channeled into informal dispute resolution systems rather than formal mechanisms. These informal mechanisms are shaped by imperatives for ‘peace’ and ‘development,’ which increase the likelihood that negotiations will have a ‘satisfactory’ outcome for both parties, providing few disincentives for others to encroach.

The weaknesses of formal, customary and informal institutions limits what punitive measures can be brought against those who violate the norms that would guarantee secure tenure, thus helping to perpetuate the cycle of encroachment.

The report was written by Alexandre Corriveau-Bourque, who is also a contributor to a volume on post-conflict land management I’m currently working on. I’m very pleased to announce that Alexandre will also be writing an exclusive guest-posting for TN later this week introducing some of the key issues addressed in the report. Watch this space!

Back to the land for displaced persons?

by Rhodri C. Williams

I was recently struck by a CSM commentary on peace-building in Liberia by Greg Mills. Mr. Mills heads the Brenthurst Foundation in Johannesburg which is, by its own terms, dedicated to “strengthening Africa’s economic performance”. They operate in an advisory capacity in a number of African countries including Liberia, and appear to be juggling any number of initiatives, ranging from extracting applicable lessons from economic reforms in Georgia to improving corporate social responsibility in Liberia based on African principles. So it wasn’t too much of a surprise that the thrust of the CSM comment was the need to, in effect, improve attitudes and end a wartime culture of dependency:

Making an immediate impact after the conflict ends is relatively easy. Taking things to the next level involves more than providing potable water, roads, ports, and electricity, however challenging this may be. It requires aquiring the soft infrastructure of training, skills, work ethic, and mind-set right in getting Liberians working again.

What was striking was not so much this general diagnosis of what ails Liberia but rather the cure that was then put forward. In essence, Liberians are advised to seek their fortune in agriculture:

Right now, Liberia cannot feed itself and there is little appetite to work the land. But if Liberia is to be a sustained success story, it will have to get people working on the land where its biggest comparative advantage exists.

Low population density, rich soil, and plenty of water make it the perfect location for growing rice and other staples. As Patrick Mazimhaka, a veteran Rwandan and African Union politician notes, “One thing we have not got right is how difficult it seems to be for people to go back to agriculture after long wars.”

The author goes on to acknowledge the significant obstacles – insecure tenure, persistent disputes and ethnic schisms – that complicate such a proposal in Liberia. However, he concludes by noting that the inculcation of a culture of responsibility could provide the solution. While this was a well-put if slightly paternalistic argument, the device of encouraging a return of urban internally displaced persons (IDPs) to agriculture seems to play on an almost romantic idea of national renewal through a return to the yeoman virtues of hard work and self-sufficiency. It also seemed to strike a chord with efforts underway in Haiti, posted on earlier here, to ensure that those displaced to the countryside are encouraged to remain there rather than drifting back to overcrowded camps in the cities directly affected by the January 12 quake.

As many readers will be aware, these proposals take their place in a protracted debate about the role of return as a “durable solution” to displacement which has been rolling along since the early 1990s. The 1995 Dayton Accords that ended the war in Bosnia posited return as a means of undoing the effects of the conflict and included property restitution as an explicit device to bring return about. Ultimately, many who worked in Bosnia, myself included, came to the view that encouraging individual choice about whether to return or resettle was both more meaningful and more challenging than focusing on return, per se.

However, a  preference for return continued to crop up in international policy, arguably culminating in the 2005 adoption of the Pinheiro Principles on property restitution for refugees and displaced persons (which clarify that property remedies cannot be held hostage to return, but place tight restrictions on when compensation can be allowed in lieu of restitution – effectively prioritizing remedies that would allow for return). Since 2005, there has been something of a backlash, perhaps most explicitly expressed by ODI in its recent policy brief on land disputes and humanitarian action:

In the aftermath of war, humanitarian efforts tend to focus on activities that aim to restore the pre-war status quo. These efforts are based on the assumption that there is a clear distinction between war and peace. In reality there is no clear-cut division…. Furthermore, violent conflict destroys not only political, economic and social structures, but is itself a process of transformation in which alternative systems of economic accumulation, social regulation and political governance emerge. These changes are part of an ‘accelerated transition’ that invariably accentuates processes of change that in most cases are already under way, and that are in any event irreversible. Returning to the status quo ante is usually impossible and may in fact not be desirable if it fails to tackle the grievances that led to the conflict in the first place, or that have emerged during the conflict.

In most cases, this ‘accelerated transition’ takes the form of urbanization through displacement, as seen in Liberia. And there is certainly evidence, all rural idylls aside, that urbanization may not only be better for the environment and checking world population growth, but that it may also, if properly managed, provide enormous benefits in terms of improved educational opportunities and living standards for rural migrants, forced or voluntary.

Indeed, coming from South Africa, Greg Mills of the Brenthurst Foundation should be well aware of the problem of getting people to go back to agriculture after long absences. In recent months, the government there has appeared to back away from a highly ambitious goal of redistributing 30% of arable land to blacks by 2014. According to a recent article in the Mail and Guardian, this has come about not only because of the high prospective costs this would impose, but also because of the insight that more than 90% of the nearly 6 million hectares of land previously acquired for redistribution is now fallow, crimping Government revenues and raising food security concerns. In response, the Ministry of Agriculture is not only focusing on support and mentoring programs for new farmers but has also issued a controversial proposal to declare arable land a “national asset”, forcing redistribution beneficiaries to productivity through a “use it or lose it” approach.

The South African redistribution program – which includes a direct restitution component – was meant to respond to the near complete dispossession of black Africans beginning with the 1913 Natives Land Act. Confined to arid tribal ‘homelands’ and peri-urban shantytowns, many South African blacks found themselves in an effective state of protracted internal displacement at the fall of the apartheid regime. However, the current debate over land redistribution may represent a dawning realization that truly durable solutions to such dislocation are likely to result from supporting the choices of those affected themselves. As I described in an earlier publication for ICTJ, the political opposition questioned whether land distribution – and the underlying dream of a black return to agrarian livelihoods – truly resonated with shantytown residents, many of whom may have come to see their future in exclusively urban terms.

In any case, recent international policy documents such as the Framework on Durable Solutions for IDPs (see post here) reinforce the principle that informed choice lies at the heart of durable solutions to displacement. Policy preferences can come in to shape such choices, but the Framework stipulates that they must be “based on serious and objective reasons” (para. 30) and goes on to provide illustrations and criteria that underscore the exceptional nature of permissible restrictions on the right to freedom of movement and choice of residence for IDPs (see paragraphs 29 to 33).

In a sense, this makes Liberia a resolvable conundrum. The rural economic potential appears to be there and if it can be harnessed in a manner that creates tangible opportunities for those now uprooted in urban centers, returns to the land will surely follow. However, actively promoting such returns at a time when the risks involved remain very concrete and the opportunities still notional could put the cart before the horse. The goal should not be to repopulate the countryside by reshuffling displaced people but to end displacement by creating the conditions for sustainable rural return.