Building Analytical Capacity and Expert Networks for Land Governance Assessment in Africa Vinodh Jaichand, Margaret Rugadya, Wilbard Kombe, Liz Alden Wily,

Building Analytical Capacity and Expert Networks for Land Governance Assessment in Africa

Vinodh Jaichand, Margaret Rugadya, Wilbard Kombe, Liz Alden Wily, Mandi Rukuni, Emmanuel Nkurunziza, Amie Bensouda

Annual World Bank Conference on Land and Poverty 2015March 23-27, 2015 Washington, DC

Three critical questions

• What is international / regional good practice in each of the LGAF thematic areas?

• What good practices are emerging from LGAF

implementing countries?

• What opportunities to help countries to move closer to international good practice in each of these area?

LAND TENURE RECOGNITION

Vinodh Jaichand

International Good Practice

• African Charter on Human & Peoples’ Rights.

• Art 60: other UN & int’l human rights norm may be applicable, including UDHR

• Ratified ICCPR, ICESCR, Convention on the Elimination of All Forms of Discrimination Against Women and Convention on the Rights of the Child.

• Declaration on the Right to Development

• E.g. African cases- Ogiek,Ongoni, Enderois, Bakweri

• Int’l; ICJ Wall, Inter-American: Awas Tigni, Dann, Mapuche, Belo Monte Dam

Good Practices in from LGAF Analyses

• Rwanda practice of joint registration of land bet. husband & wife- eliminate discriminatory practice

• Rwanda titling impressive

• Kenyan constitutional protections for land removes ambiguity

Opportunities to improve country practice

• The search for better practice in another African country, e.g. ‘living’ customary law

• Comparative law & law reform: Prevention of illegal Eviction Act, Extension of Security of Tenure Act- the search for African solutions

• What are understandings of expropriation laws from African Charter(Art 14): how do other African countries attend to this in practice: what is the harm that we need protection from?

RIGHTS TO FOREST AND COMMON LANDS; RURAL LAND USE REGULATIONS

Margaret A. Rugadya, Ford Foundation

Good Practice versus emerging practice

• Three key concerns: affordability (capacity); familiarity (participation); and utility (value addition) in documenting rights and mainstreaming systems for managing the commons

• Customary systems remain an important source of legitimacy for access to the commons due to limitations.Sierra Leone, Tanzania, Kenya

• community organizing: for more supportive local structures, including the re-negotiation of power arrangements between communities, the state and other actorsTanzania, Capacities - Ethiopia

Good Practice versus emerging practice

• Existence of laws and policies without implementation is not sufficient for governance of the commons: - multi-sectoral natural nature of resource institutions and

mandates for management, use and control (Kenya, Tanzania

- Rwanda – classic case of getting it rights without practice

• Decentralization or devolution place local authorities or customary authorities in positions of power and decision-making, with(out) capacity to perform the tasks and responsibilities for which they are being empowered:- County Council Governments in Kenya- Federal and regional governments in Ethiopia

URBAN LAND USE PLANNING AND DEVELOPMENT

Wilbard Kombe


• Increased decentralised land use planning to LGAs and their partners – public, private and popular sectors

• Integrated approach to land use planning (policies, legislation and systems)

• Affirmative action towards informality – nurture and guide them (upgrading, regularisation and formalisation not sufficient

• Regulatory frameworks for informality – do and donts (improve governance)


• Institutionalised position and role of the Integrated Development Plans – coordinated actions and financing at LGA levels

• Elaborate statutory provisions for substantive engagement with stakeholders urban planning and implementation - incl. provisions for transparency, foreclosure, accountability and petition

• Strategic regulatory instruments for and action in informal land development sector – min. plot sizes and land for public uses (wayleaves/utilities), zero tolerance on encroachment on fragile ecosystems, public land uses …etc.


• Urban land use planning and informality back on the international and national development agenda - significant effect on socio-economic well-being and mode of urbanization

• Public sector/states lack resources, capacities and legitimacy to act alone; but remain indispensable - socio-political and economic and technical

PUBLIC LAND MANAGEMENT

Liz Alden Wily


• Composition of ‘Public Land’ - Crystal-clear definition of ‘public lands’ - Excludes &/or only temporarily holds unregistered individual, family &community lands

- Does not presume that all public purpose lands must be state-owned; divestiture of esp. Protected Areas to community tenure on conservation conditions.

• Scope of compensation widening to include payment for lost secondary rights, off-farm lands, unregistered property, and for socio-cultural as well as economic and tangible land losses.

• Disposal of public land to private persons is rigorously regulated, public, subject to local area consultation & negotiation, and criteria bound


• Kenya: vesting public property in citizenry, central & local governments as custodial managers only

• Rwanda: registered public lands at same time as private registration. Speedy, free & accessible complaints procedure with well-recorded & public results

• Tanzania: strong system of devolved governance of public lands to communities. Multi-head basis for compensation lost lands & rights

• Ethiopia: signs of strong potential for divestiture of pastoral & some forest lands to community tenure

• Sierra Leone: strong opportunities for expanding compensation to untitled customary land holders & for common lands

PROCESS FOR TRANSFER OF PUBLIC LAND TO PRIVATE USE

Mandi Rukuni


• LSLBI ought to respect existing, customarily-defined rights of local people and communities to land and related resources

• Governments have to promote transparent transfer of public land to private use, following a competitive process with agreements easily accessible, monitored and enforced

• Acceptability of LSLBI to be based on independent, holistic assessment of financial, economic, social and environmental costs and benefits throughout the lifetime of the investment

• LSBIs must provide maximum benefits to the national economy and improve livelihoods of local communities

• Good data must be kept on LSLBIs, building evidence and drawing lessons


• Public institutions transferring land to investors are clearly identified

• Investors are increasingly required to provide more information to allow more rigorous evaluation of proposed investments

• Governments improving the process of approving investments and predictability of process


• Improving sharing information and coordination to minimize and resolve overlaps

• Information on spatial extent and duration of approved concessions is publicly available

• Holistic improvements across a) Constitution; b) Legislation; and c) Regulations; and d) Institutions

• Greater role of civil society

• The absence of a resettlement policies needs further treatment given the extent of displacement

PUBLIC PROVISION OF LAND INFORMATION: REGISTRY & CADASTRE

Emmanuel Nkurunziza

Director General, Rwanda Natural Resources Authority & Chief Registrar of Land Titles


• National coverage, with land registry containing records on all land parcels in the country

• Digital/electronic registry linked with other key national registries such as mortgage registration

• Unifying land registry and cadastral systems or parcel geo-information

• Online access/mobile phone application for citizen access to land registry


• Rwanda: titling covering the whole country with all records in one electronic land registry (over 10.5 million parcels);

• Moving from analogue/manual land archives to electronic registry – Land Administration Information System;

• Unification of registry and cadastre due to be launched.


• Adopting low-cost data capture methods to ensure all land records are collected and stored

• Digitization of existing land records into easily manageable and accessible databases

• Mutual learning can accelerate system development

DISPUTE RESOLUTION

Amie N. Bensouda

International Good Practice• Recognition that an effective system of land dispute prevention and resolution is

fundamental component of good land governance

• Transparent avenues/forums whether informal (community based) or formal (administrative) exist to pre-emptively address grievances arising from rights in land that are accessible to all

• Independent, impartial and competent adjudicatory system established by law for the equitable, timely and affordable resolution of disputes at all levels

• Specialized/competent tribunals or processes where needed

• Appeal processes that competently, authoritatively and conclusively reviews challenged decisions in a reasonable time

• Alternative/parallel avenues for the consensual resolution of disputes recognized both by the community and by the formal adjudicatory system that are enforceable

• Measures to ensure that the share of land that is subject to conflict is kept low

• Possibility of legal aid to the marginalized and vulnerable


• Comprehensive approach to reform - policy – law – (Rwanda, Tanzania, Kenya, Ethiopia)

• Special legal provision for land dispute resolution (Tanzania Land Dispute Courts Act; Kenya Environment and Land Court Act)

• Emphasis on traditional and community mechanisms & connecting ADR to formal system (Rwanda) improving recourse and coherence

• Focus on costs, time lines and enforcement of decisions (Rwanda), (Ethiopia)

• Periodic clearing of back log (Burundi, Ethiopia, Sierra Leone


• LGAF presents and opportunity for country self assessment to obtain a comprehensive overview of the status of land governance

• Results being country specific, it affords opportunity for designing appropriate and tailored reforms for prioritized country needs in a participatory and incremental manner

• Country programmes should encourage countries to carry out an LGAF assessment as pre-conditions to donor intervention in the administration of justice sector etc.

• An annual monitoring mechanism could also be designed to benchmark progress on addressing weaknesses identified by LGAF as part of a regional index on good governance and the rule of law

Documents

Building Analytical Capacity and Expert Networks for Land Governance Assessment in Africa Vinodh Jaichand, Margaret Rugadya, Wilbard Kombe, Liz Alden Wily,