Tag Archives: ODI

Online books on land law in Africa

Just a brief announcement regarding a pair of very interesting online books from last year that are available for free download from the website of the Pretoria University Law Press. Both are edited by Robert Home and address the theme of African Land Law.

The first is a series of case-studies. While most take up development themes, the first two, by Patrick McAuslan and Geoffrey Payne, focus on post-conflict issues. In the case of McAuslan in particular, the analysis appears to further unpack development-based critiques of the Pinheiro Principles of the sort initially raised by the Overseas Development Institute.

The second book features a series of essays, including a discussion of the influence of Islamic Land Law in Africa by Siraj Sait, and several pieces on the trend toward recognition of indigenous peoples’ land rights, in contradiction to the post-colonial impulse to treat untitled land as the property of the state.

The need to move from recognition of such rights to implementation was recently highlighted by a report on Kenya by the Working Group on Indigenous Populations in Africa. According to reports earlier this month by the Nation and the Star, the report highlights not only Kenya’s failure to implement the findings of the African Commission of Human and People’s Rights in the Endorois case, but also ongoing land depredations that continue to threaten other minority groups in Kenya (as reported on earlier in TN here).

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Avoiding conflict through early and effective management of land disputes

by John W. Bruce

The last decade or so has seen growing recognition of the major role played by competition for land in generating conflict. However, the often extremely complex and embedded nature of such conflicts—and associated political sensitivities—is such that both international and national actors have in many cases shied away from fully engaging with them. In other cases, forms of intervention have not always sufficiently taken into consideration their major—and potentially recurring—causes. The challenge is to better understand the role played by land, combined with related factors, in the generation of conflict—both in terms of the conditions that create a vulnerability to conflicts and events that tend to trigger violent conflict—as a basis for preventing or de-escalating violence.

I had worked on land issues from a development standpoint in Mozambique, Sudan and Cambodia, but a 2009 study in Rwanda for the Overseas Development Institute and follow-up work with UN-Habitat made me aware that the humanitarian community working in peacebuilding contexts had developed new ways of looking at land conflict and useful short-term approaches for addressing it. The land tenure in development community had little knowledge of these and often saw land policy and administration exclusively through an economic development lens. At the same time, those in the humanitarian community working with post-conflict land issues lacked familiarity with the role of land tenure in development processes and sometimes did not appreciate what was needed to lay the basis for sustainable, sound land governance.  These bodies of understanding and differing perspectives about land issues had not been integrated-an integration that is essential to the development of effective strategies for prevention and mitigation of land-related conflict.

With these challenges in mind I agreed to work with the Initiative on Quiet Diplomacy (IQd) to develop a handbook on Land and Conflict Prevention The handbook is one of a series providing third party actors with practical guidance in addressing issues that are frequently the sources of tension before violent conflict (re)erupts. IQd’s approach to me coincided with a train of thought that began when I worked with UN-Habitat on post-conflict land issues. I was struck by the fact that the valuable thinking that had been going on in the post-conflict context needed to be walked back through time, as it were, into the pre-conflict period, asking “What do we know about land and conflict that can be mobilized for prevention?” The result is a blend of ideas and practical guidance for preventing land-based conflict drawn from both the post-conflict and developmental contexts.

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The Pinheiro Principles take a licking (and keep on ticking?)

by Rhodri C. Williams

Based on my early experience of both, working on international soft law standards seems a bit like parenthood – you have a limited period to create a warm, protective space around the text that will give it the resilience and flexibility to make a difference in the world and then you let it go and watch its fitful progress with your heart in your mouth. Maybe you don’t hear from it in a while and then, for better or for worse, there it is in the morning paper.

My first brush with the ‘Pinheiro Principles’ on property restitution for displaced persons came during their infancy, when I sent comments on a draft and was invited to participate in a March 2005 expert consultation to groom the text for  presentation to the UN Sub-Commission on Human Rights. I was fresh from my prolonged engagement with Bosnian restitution and pleased to see so much of what we had struggled to articulate there being expressed in the draft. At the same time, a prior consultancy job with IPA had put me on notice that both the nature of post-conflict property issues and means of addressing them could take many forms.

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ODI releases ‘Uncharted Territory’ chapters for free download

The Overseas Development Institute (ODI) has just made ‘Uncharted Territory’, its ground-breaking book on land, conflict and humanitarian action available for free download at this webpage (choose the tab marked ‘downloads’). For TN readers who are not familiar with this book, it comes highly recommended.

The signal contribution of ‘UT’ has been to problematize the international discourse around property restitution in a much more sophisticated way than had previously been the case. While the subtitle of the book references humanitarian action, the most incisive critiques really come from a development perspective and challenge a perceived tendency of humanitarian actors to uncritically adopt (and, crucially, promote) a particular human rights-based approach to post-conflict property issues that has worked well in some settings but may be radically inappropriate for others. I could go on and on, but would propose that the chapters speak better for themselves than I could speak for them…

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.