La question des conflits fonciers au Mozambique: étude de cas dans la province de Zambézia
Depuis des temps immémoriaux, la terre suscite des conflits au Mozambique. Aujourd'hui, ces conflits ont principalement pour origine les intérêts divergents du secteur commercial et des communautés rurales. L'article traite de la façon dont les conflits fonciers sont actuellement gérés dans la province de Zambézia et présente deux études de cas types. Historiquement, cette province est caractérisée par des affrontements entre les petits exploitants et le secteur privé.
Le principal problème soulevé dans cet article - la nécessité d'une participation active de toutes les parties prenantes à la gestion des terres - se situe au cœur même de la politique foncière et de la législation en la matière. L'article souligne l'importance d'un mode non judiciaire de gestion des conflits permettant de concilier les intérêts divergents des différentes parties en présence. Le cadre juridique existant comporte d'excellents instruments fondés sur la participation qui peuvent être utilisés à cette fin.
Solución de los conflictos por la tierra en Mozambique: un estudio monográfico sobre la provincia de Zambezia
Desde tiempos inmemoriales, la tierra ha sido motivo de enfrentamientos en Mozambique. Hoy en día, los enfrentamientos están motivados principalmente por los intereses contrapuestos del sector comercial y las comunidades rurales. En este artículo se examina la situación actual de la solución de los conflictos por la tierra en la provincia de Zambezia y se presentan dos estudios monográficos típicos. Históricamente, esta provincia se ha caracterizado por ser escenario de enfrentamientos entre los pequeños agricultores y el sector privado.
La cuestión principal que se aborda en este artículo y que ocupa un lugar central en la política y la legislación agrarias, es la necesidad de que todas las partes directamente interesadas participen activamente en la gestión de la tierra. El artículo subraya la importante función de la solución extrajudicial de los conflictos para conseguir un equilibrio entre los distintos intereses de las partes. El marco jurídico actual ofrece una serie de instrumentos valiosos de participación que pueden emplearse para lograr ese equilibrio.
FAO Land Management Consultant
Since time immemorial, land has been a focus of struggle in Mozambique. Today, this struggle mainly involves the opposing interests of the commercial sector and rural communities. This article examines the present state of land conflict management in Zambezia Province and presents two typical case studies. Historically, this province has been characterized by confrontations between smallholders and the private sector.
The major issue addressed in this article - the need for the active participation of all stakeholders in land management - lies at the heart of both the land policy and land legislation. The article underlines the important role of extrajudicial conflict management in striking a balance between the various parties' different interests. The present legal framework provides a number of excellent participatory tools that can be used to achieve this balance.
Both before and after independence in 1975, land policies pushed rural communities to marginal lands where they are confined to small parcels for mainly subsistence agriculture. After an initial post-independence period of socialization of the rural world, the Government of Mozambique embraced a more liberal and market-oriented development model. In this new context, mechanisms were created to acquire new land rights for private investment, at almost no cost for the applicant. Under the general conditions of a weak and deficient centralized land administration, lack of transparency and considerable opportunism, large tracts of land were (re)allocated to potential investors.2
The government realized, however, that despite being marginalized, the rural household sector3 continued to play a crucial role in the sustainable development process of the country, and in the de facto management of land resources at no cost to the state. It encouraged a reflection on a new land policy with the participation of a wide number of stakeholders, including civil society. The need to recognize and legalize the historic land rights of communities, eventually accompanied by a titling process, is an important outcome of this process. Consequently, a new legislative framework was developed that integrates customary laws and land-management practices, and recognizes the value and role of customary land-management institutions without institutionalizing them. Although problems with land law implementation are acknowledged, the legal reform package also provides excellent opportunities for successful conflict management, mitigation and, eventually, resolution.
This article assesses the present state of land conflict management in Zambezia Province, analysing two ordinary case studies. Historically, this province is a region of serious confrontations between the smallholder and the private sector. Its favourable climate, excellent soils, vast forest resources, major hydro and coal energy resources (Cahora Bassa, Moatize) and water (the Zambezi River), have made it an important focus of interest for the private sector.
The article addresses the main issue at the heart of both the land policy and the land legislation - participation of all stakeholders in land management. It underlines the importance of extrajudicial conflict management to strike a balance between different interests.
After the multiparty elections of 1994, the government initiated an ambitious policy reform programme in several key sectors to support its overall economic and social policy. The Land Policy, approved in 1995, is a key element and it includes as its main objectives:
The Land Policy recognizes the customary rights of access and management of land. The recognition of the role of local leaders in conflict management and land allocation lays the foundation for the inclusion of some powerful participatory conflict-management tools in the subsequent land legislation. The need for land legislation revision is possibly the most important recommendation of the policy's implementation strategy.
Land Law. Over a period of three years, three important pieces of land legislation were developed and approved: the 1997 Land Law, Land Law Regulations and a Technical Annex to the Regulations. All three were developed by the government through a genuine process of participation with civil society, including non-governmental organizations (NGOs), religious organizations and other stakeholders.4 The result was a set of documents that are not alien to its beneficiaries, and are solid instruments for policy implementation that are regarded as legitimate by all.
Law 19/97 (the Land Law) embraces a rights-based approach that moves away from the former principle that land belongs to the people who work it. It translates into law the findings of agrarian systems and land-use research5 that show how communities occupy, use and manage vast territories of land in a dynamic and opportunistic way, and not only for economic purposes. The law recognizes the right of rural communities over these areas.
While the state maintains its role as landowner, the only right that is legally recognized is the right to use land (DUAT - direito de uso e aproveitamento da terra). Existing customary or smallholder use rights, acquired through historic occupation or occupation in good faith, may be formalized into a formal land-use title but do not have to be registered in order to secure full legal protection. Registration of new rights is compulsory. The titling process of a DUAT requires a mandatory consultation with the local communities to confirm whether indeed the requested land is "free" for an "investor" to use.6 This is the community consultation process specified in Article 13, in which communities are given a clear role in land and natural resource management. This responsibility of local land management is reconfirmed in Article 24.
The Regulations to the Land Law (Decree 66/98) provide practical details on how to formalize new land-use rights. The identification, delimitation and registration of existing customary rights is covered in a Technical Annex, referred to in Articles 9, 10 and 30 of the Regulations. This Annex (Ministerial Diploma 29-A/2000) provides a methodology for identifying a local community and existing community land rights. It also gives practical steps and guidelines on how to delimit territories over which these communities have acquired land rights and how to register these in the National Cadastre.
Law on extrajudicial conflict management. Conciliation, mediation and arbitration are legally recognized by Law 11/99 as alternative tools for conflict resolution. Although its field of application is not clearly stated in the law itself, it was mainly developed to deal with disputes originating from socio-economic activities in the context of the emerging free market economy. Land must be considered as a key production asset for development in the rural world, where socio-economic activities are encouraged by, among other things, partnerships between the rural household and the private sector. It is obvious that this law on alternative conflict management applies to land conflicts between and within these two economic sectors. To our knowledge, this law has never been seriously considered for the management of land conflicts, although it responds to the need for "involving local communities in conflict resolution" as stated in the Land Law (Article 24).
The above-mentioned legislation provides several practical instruments for dealing with conflict management in a participatory way:
The extrajudicial conflict resolution law gives considerable attention to the arbitration procedures, which are clearly defined. It includes numerous articles presenting regulatory provisions for its implementation, such as: i) Designation of arbitrators; ii) Ethics and rules of conduct for arbitrators; iii) Rules and regulations of the arbitration process; iv) Modalities for decision-making; and v) Implementation of the outcome of the process.
The arbitration process observes some basic rules that are thought to be important for land conflict management:
The need for a community consultation before the allocation of new land rights is presented in Article 13 of the Land Law (17/97). The baseline of this community consultation is to make sure that requests for new land rights do not clash with existing land rights, mainly acquired through historical occupation by the communities.
Article 13 itself uses the wording "to confirm that the requested areas are free and do not have occupants". Bearing in mind the NGO "Land Campaign" grouping declaration that "Mozambique has no free land" (i.e. that community lands are contiguous), the article implies that the community consultation process is more than just a declaration of land being free for occupation. It entails a negotiation process between the community and the private investor on the conditions of land allocation for an applicant.
The Land Law identifies that existing community land rights have the same weight as newly acquired land rights. Whereas the latter are always recorded, community land rights are not, and this may result in serious problems. When rights remain unregistered, they are not known and visible to outsiders, even though local people know about them and respect them. This situation is being exploited to obtain the so-called "free areas" for development, reflecting long-held historical perceptions of local land use. The yardstick for the identification of free areas is the absence of highly visible land uses such as permanently cultivated lands.
The Technical Annex addresses these weaknesses by defining methods to identify, delimit and register community land rights acquired through occupation according to customary practices. The process is initiated by a sensitization and awareness-creation campaign to inform community members about the land legislation and their rights. According to the philosophy of the Technical Annex, the sensitization process takes the form of a series of meetings organized mainly by NGOs that are dealing with the land issue. The involvement of NGOs in this process is not explicitly stated in the Technical Annex, but is a practical fact. Figure 1 gives a brief overview of the practical steps and procedures that are used.
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FIGURE 1 The process of delimiting the land of a community |
The method is based on the analysis of:
It enables the community to identify itself and the territory over which it has acquired rights through occupation. Using participatory mapping techniques, these rights are visualized and consequently validated with neighbouring communities. When there is a general consensus on the nature, extent and location of the land rights, these are registered and a certificate issued. The rights protected by the certificate are exactly the same as the rights covered by a formal title document.
This case started in 1967 with an application for a land concession of 5 000 ha by Jose Ferreira for livestock production. The proposed farm exploitation plan was assessed by competent technical and administrative services, resulting in a proposal to reduce the area to 1 500 ha. The process was then referred to higher national-level instances in Maputo and additional technical evaluations were conducted. Despite a reconfirmation by the District Administration that part of the land requested was occupied by the local population, a licence to demarcate 5 000 ha was issued. The consequent fieldwork resulted in the demarcation of only 3 400 ha, the remainder of the lands being visibly occupied by the communities. At this point, and after eight years of processing, the applicant became a concession holder but apparently left the country in the aftermath of independence.
On the basis of the absence of the concession holder, the land concession was cancelled by the governor in 1977. During the civil war, little activity took place in the area. When the political situation stabilized in the early 1990s, the Murrua and Mutange communities restarted their land-use activities on the former concession.
The process took another turn in 1995 when two DUAT applications were received by the provincial cadastral service, known in Mozambique as SPGC (Serviço Provincial de Geografia e Cadastro), both including the area of the colonial concession. The application of a Senhor Muhai coincided exactly with the former (3 400 ha), but was shelved in 1999 when the applicant failed to confirm his interest according to Article 46 of the Land Regulations.7 The application of Gil Fonseca was for an area of 13 800 ha that includes the former colonial concession, all remaining lands occupied by the Mutange community and part of those occupied by the Murrua community. While this application was still being processed by the SPGC, the applicant began occupying part of the land and expanded his activities. After an initial period of cooperation, this "spontaneous" occupation evolved into a dispute with the Mutange community, resulting in crop damage by cattle, provocation, access roads being cut off and loss of community access to resources.
During the information campaign on land rights initiated in 1998 (a civil initiative known as the "Land Campaign") the Mutange community became aware of their rights. It was probably when the community was informed through the public notice (edital) of the Gil Fonseca DUAT process in August-September 1998, one of the last steps8 in legalizing a land application, that it opted to delimit and register the land rights acquired through occupation. During this exercise, a boundary dispute emerged between the Murrua and Mutange community. The dispute was successfully managed by a local team from a national NGO specializing in land issues (ORAM - Associação Rural de Ajuda Mutua) acting in a facilitating role. As a direct result, the Murrua community also requested the registration of their rights acquired through occupation. The Murrua and Mutange community land certificates were officially issued in March 2000.
Apparently, under pressure from the Mutange community land delimitation, the applicant Gil Fonseca reformulated his application in July 1999 and reduced the area requested to 5 000 ha (in fact, only 2 000 ha for immediate activities with a further 3 000 ha as a reserve for later activities). A land concession of 5 000 ha was granted by the Provincial Directorate of Agriculture and Rural Development (DPADR) through its SPGC, in February 2002. After a six- to seven-year period of total lack of communication between the present concession holder and the local communities, the community consultation process has probably not achieved the necessary degree of mutual understanding for a sustained and definitive dispute resolution.
During the course of events, several mechanisms were used by various stakeholders, some more successful than others. In this section, a brief account of the methodologies used is presented, while more general conclusions on the opportunities and constraints of these tools are discussed in the section entitled Lessons learned from conflict management in Zambezia (p. 64).
Conciliation between communities. A dispute on the exact location of a common boundary between the Murrua and Mutange communities surfaced in 1998 during the identification and delimitation of the land rights acquired through occupation of the Mutange community. The Mutange population produced a participatory map indicating the spatial distribution of their lands. When this map was presented for validation to the neighbours, the Murrua community objected. There was an agreement that the boundary should coincide with a river, but the Mutange representatives accused the Murrua leadership of penetrating into their area by considering a different river as the boundary. This river cuts through the Muriela forest, which is a highly valued natural resource for both communities.
As ORAM facilitated the Mutange delimitation exercise, it started a process of conciliation between the two communities. It must be stressed here that, while ORAM was very active in Mutange, the Murrua community had not yet been involved in the sensitization and information campaign on the Land Law. After a number of individual meetings, a joint meeting was organized involving the two communities and their delegations. This time, at the suggestion of some senior Mutange residents, a respected elder from the neighbouring Batela community was invited to give his version of the area's history of land occupation. On the basis of his account of the origin and location of the boundary, a consensus was reached between the two communities, coinciding with the Mutange version.
The conflict-management process demonstrates the usefulness of conciliation between equally balanced stakeholders in an early phase of dispute. It also underlines the importance of neutral and independent conciliators, and the strength of local expertise.9
Community land delimitation and registration. The identification, delimitation and registration of the Mutange community land rights was one of the first pilot experiences to be implemented in Mozambique. It is clear that the decision by the Mutange community to implement the provisions of the Land Law to protect their land rights has substantially changed the power balance with the private investor. In this case, the investor immediately reduced the area of his application, perhaps resulting in a more realistic situation. At the time of writing, the dispute between Gil Fonseca and the Mutange seems to have stabilized. It now remains to be seen how this situation will evolve. A major responsibility of the local government is that of monitoring the compliance of the agreement made between the private investor and the community.
The case study also shows how the community delimitation activated a latent territorial dispute between two communities, and subsequently helped to resolve it through a participatory process leading to mutual agreement. Hence, community delimitation also seems to be an excellent tool for ironing out these embryonic land management disputes between communities.
Community consultation process. The community consultation process is designed as a legal participatory tool for conflict prevention between communities with existing land rights and private investors who apply for new land rights.10 At the same time, this process may foster an eventual agreement with socio-economic benefits for both parties - a partnership. The consultation process between Gil Fonseca and the Mutange community, however, contained major weaknesses:
The community consultation resulted in an agreement that includes following terms:
Apparently, however, the community considers that very little information has been exchanged. Neither the detailed exploitation plan that should be attached to the DUAT process, nor its potential impact on the community, was discussed.
This case involves an old concession that once belonged to a Portuguese settler, Antonio Marques (the land application process was activated in 1963) and a local community (Mulemba), for which an area for native occupation within the concession was identified in 1967. The local people established rice fields within the area, with the lands divided among the different families according to existing customary land distribution mechanisms in the river floodplain. The concession holder himself planted coconut trees and grazed cattle. A first conflict resolution effort, in 1973, between the two parties and the local administration resulted in 1 000 ha being taken out of the concession and allocated to the local community for rice cultivation.
A year later, the problem arose again. According to the administration, the community asked for more land, apparently covering the entire concession. It is not clear whether, in fact, the community was asking for all the remaining concession land, or whether it wanted to occupy only the wetlands falling within the concession area. What is clear is that the concession holder insisted that the community should identify a contiguous area for community occupation, and not dispersed parcels of wetlands.12 Consequently, in 1975, an order was issued allowing the community to reoccupy further areas for wetland cultivation, in agreement with the concession holder. A clear boundary was established to separate the cattle from the rice fields.
During the civil war the area became dangerous and was apparently abandoned completely. After 1993, the population returned and largely reoccupied their fields, while there was no sign of the concession holder. In late 1997, a certain Oliveira, manager of the company ARPEL, appeared and informed all those who were cropping in the area that the land belonging to Antonio Marques had been bought by ARPEL. A DUAT application appears in the name of Idrisse Valy "and others" (not ARPEL), with "others" including such high-profile figures as deputies. In fact, in 1994, Armando Idrisse Valy "and others" had applied to the Minister of Agriculture for a 10 000 ha land concession. The SPGC activated the process and the District Department of Agriculture (DDA) issued a memorandum in August 1994 stating that the requested land was not abandoned (hence it must be in use). At the same time, however, the DDA also confirmed that it did not see any inconvenience in the requested land being granted to the applicant. This position was confirmed by the provincial services (DPADR) two years later.
From this point, a dispute began between the company and the community that has become increasingly serious and mirrors the events of 30 years ago. The historic conflict was exacerbated by the occupation of rice field by cattle, resulting in the destruction of hundreds of these parcels. The District Administration was approached on the initiative of the community, but no discussion took place between the protagonists. In 1999, some cattle were apparently killed and two community members were imprisoned for 16 days, one of them being a blind and respected war veteran.
The situation has since deteriorated even further, according to the District Administrator, because there are no representatives to speak on behalf of the community. In his view, there are also opportunistic elements among the community members and one of the root causes is the dispersed manner in which the community arrange their fields. However, because rural livelihood strategies tend to rely on an opportunistic and dynamic use of different soil types, the agricultural fields belonging to a given household are generally widely dispersed. The District Administrator's comment reveals the level of misunderstanding of local production systems and land rights by public officers.
The Mulemba community contacted ORAM in 1998 to intervene in the conflict. The NGO began talks with the District Administration of Maganja da Costa but was informed that previous mediation attempts by this administration failed because ARPEL had never accepted the proposals and that there had never been any direct contact between ORAM and ARPEL, apart from occasional encounters "in the street". The interest in the land application was confirmed by ARPEL on 6 June 2000.13 During this period, the Mulemba community began to be informed about the new Land Law. The community land delimitation did not start immediately, however, apparently owing to the financial problems and different priorities of the implementing institutions.
A conflict resolution meeting was organized and took place on October 2001, before the community land delimitation. A delegation from the Provincial Department of Agriculture and the SPGC participated, as well as representatives from the community, ARPEL and the so-called District Commission for Conflict Mediation. The members of this commission are all public officers, with the exception of a political party secretary.
The meeting concluded that the community should be reallocated the lands that were allocated to them in 1975 by Maquival, totalling 518 ha, thus reducing the DUAT application by the same amount. Further consensus arrangements were stipulated, with the fencing of the concession boundary with the community being a priority.
The conceded area was surveyed in November 2001, and the SPGC forwarded a request to the provincial governor for approval of the Idrisse Valy-DUAT application (10 000 ha). The provincial government endorsed the request but, in accordance with the law, forwarded the application to the Minister of Agriculture and Rural Development for final approval. A community land title certificate covering an area of 6 917 ha was also issued in February 2002. No local consultation process took place.
In the Mulemba-ARPEL case it is important to highlight both the nature of the different conflict-management tools that were used and the sequence in which they occurred.
Mediation. Two different mediation efforts can be distinguished. In the first instance, the District Administration tried to mediate between ARPEL and the community. The administrator approached the company with the proposal of conceding some wetlands to the community for rice cultivation, but his offer was turned down. After having been approached by the community, ORAM started to mediate between the two parties. Apparently, ARPEL has always managed to avoid any direct contact with ORAM (mainly a refusal to sit at the table). Only some casual contacts occurred with the day-to-day ARPEL manager and not with the DUAT applicants themselves.
These mediation efforts took place at the beginning of the conflict, when the community was in a weak position.
Initiation court case. After the imprisonment of several community members, ORAM started preparing a court case against ARPEL. A junior ORAM lawyer investigated the case in situ, and prepared a judicial note (parecer juridico) as a basis for further action. While it certainly supported the case, ORAM considered, however, that the judicial note itself was rather poor, and decided not to go to court immediately. One of the weaknesses seemed to be that the note did not take full advantage of the different legal provisions included in the respective legislation.
Although ORAM changed its strategy, the threat of eventual recourse to court had a considerable impact on the provincial government. The Governor took note of the development of the conflict and initiated the next phase in the conflict-management process.
Administrative arbitration and adjudication. The Mulemba-ARPEL conflict has been one of the major reasons for the creation of the Provincial Conflict Resolution Commission in Zambezia. Its members include the Provincial Governor, the Provincial Director of Agriculture and Rural Development, representatives of the Public Prosecutor, ORAM and MADAL (an important private company involved in agriculture and forest exploitation). This commission with decision-making responsibility (i.e. arbitration in land conflicts) is supported by a technical commission, whose major functions are analysis of conflicts in the districts and reporting to the provincial commission in order that the latter can make sound decisions based on field reality.
The lack of contact between the strong senior decision-making body and the more junior advisory body has been the major reason for the de facto extinction of the commission.
Community land delimitation and registration. The community land delimitation took place after the land adjudication discussed above and, in fact, was no more than an exercise to confirm decisions already made. It is striking that during the participatory mapping of the community land rights, only a small part of the newly approved ARPEL DUAT rights were indicated. If this means that these rights are not seen as legitimate by the population, then it is likely that the conflict is not yet resolved. In fact, during the adjudication meeting, little attention was given to the nature and extent of existing and new land-use rights. The sole objective of ARPEL was to agree upon some conditions for ARPEL to finalize the process officially.
Another inconsistency is that the community land delimitation was not accompanied by the mandatory community consultation process. According to key informants, the adjudication meeting has taken the place of this consultation. If this is the case, then a unilateral administrative adjudication (albeit in the presence of the protagonists) has replaced a participatory consultation process.
The main protagonists of conflict in Zambezia Province are the smallholders and rural communities who are trying to adapt their livelihood strategies to the new sociopolitical context and the private sector, which sees access to land and forest resources at a very low cost as a unique opportunity and a foundation for future activities.14 The characterization of both sectors immediately reveals the imbalance of power between the opposing sides, while a number of public, non-governmental and civil institutions influence this imbalance.
For the people themselves, the structure of a local community is strongly rooted in customary social organizational patterns and land-management systems. Mozambican communities are mainly organized along customary lines but with mechanisms for accommodating outsiders. Local structures at various levels manage lands and natural resources under different tenure regimes. When conflicts arise between different local communities, or between a local community and outsiders (e.g. commercial interests), these management structures, and not necessarily individual community members, are involved. The community concept is alive and fully operational in rural areas. Its strength as a cooperative body to deal successfully with conflict management in the present socio-economic context is weakened, however, by factors that include the following:
Over time, communities have been exposed to a series of events and processes (colonization, war, natural disasters, political manipulation, individualization of society), resulting in internal tensions and undermining cooperative strength.
The "sector" of private investors and commercial interests applying for new DUATs in rural areas covers a wide spectrum of profiles, with the following giving a fair, although incomplete by far, cross-section for Zambezia Province.
The lowest form of formal local government is the administrative post, followed in hierarchy by the district and the province. The district occupies a crucial position for land law implementation and conflict management, with clearly identified responsibilities in the legislation. Rural local governments are not elected; their leaders are appointed by higher-level political and administrative decision-makers. This lack of direct accountability to a constituency, together with the failure by the state to create incentives for good governance and management15 may be why they tend to look down on rural populations and are more receptive to commercial interests.
Notwithstanding the above, it is evident that, up to the district level, local administrations try to establish and maintain good levels of contact with the surrounding population and the reality of the rural world. The high turnover of administrators, however, makes it more difficult to understand the specific realities in each site. Knowledge about the spirit, content and practical implementation of the land policy and legislation remain major weaknesses for administrations.
According to the law, the SPGCs are a major player in conflict management. Most cadastre personnel have been trained to develop and maintain a "standard" cadastral register, with an emphasis on the surveying and administration of individual land plots. With the introduction of participatory methods for the identification and surveying of land rights, including the use of modern, simple and more user-friendly global positioning system (GPS) equipment, these services feel somewhat at a disadvantage. In particular, the training of some NGOs in applying these participatory methods (including participatory mapping techniques) sometimes creates a difficult relationship and animosity with the cadastre services.
Where provincial services have become accustomed to these new technologies and ideas, it seems that the central institution, the National Directorate for Geography and Cadastre (DINAGECA), has always tried to discourage them from getting too involved in the registration of community lands. In the past, both the National Directorate and the SPGC have mainly delivered conditional services to the public. The low salaries and the need to diversify livelihood strategies, combined with a lack of transport in the provinces, have meant that the delivery of "public" cadastral services is inclined towards the private sector. It is thus evident that neither the SPGC nor DINAGECA can be considered as neutral facilitators in conflict management between the private sector and the communities.
The Zambezia Agricultural Development Programme (ZADP)16 is the main vehicle for land law implementation in selected districts in Zambezia. The land component of this programme fosters a partnership between ORAM, World Vision and the SPGC. In other districts the partnership is usually ORAM working together with the SPGC.
The main responsibility of ORAM in Zambezia is advocacy of community land rights on the basis of the land legislation. It has adapted a strongly defensive approach, promoting in the first place "protection" of communities against outsiders. In this role, the organization has established a good relationship with these communities and has gained their respect, while at the same time creating profound scepticism in the private sector. It is obvious that it is difficult to combine advocacy work for communities with mediation responsibilities between these same communities and the private sector.
The present policy and legislative package provides some excellent opportunities for participatory land conflict management and its effectiveness is therefore directly linked to a correct implementation of the Land Law. The case-study material shows that there is still a wide gap between the provisions on paper and the field reality. This section analyses the opportunities and constraints for participatory conflict management within the present legal framework.
The political environment for land law implementation. Considering the pre- and early post-independence history of land policy and land administration, it is not surprising that strong conservative approaches to the new legal framework still persist. The conclusions of the Mid-term Review of the ZADP programme17 confirm the worries that the land law reform process in Mozambique is not yet irreversible and that important consolidation efforts can still be made.
Legislation not streamlined. While the land law confirms the existing rights of local communities to use and manage their lands and natural resources, the Forestry Law identifies the need for licences to exploit forestry resources. Without this licence, communities can only use forest resources for their own consumption. If they want to commercialize forest products, they must request a new right from the state, in the form of an exploitation licence as for a new commercial enterprise. Simple licences are issued for a maximum of one year, and new enterprises require little or no consultation with local communities. Before a full licence or forest concession can be obtained, however, a community consultation process, comparable with the Land Law, is required.18
A major problem is that forest licences can be obtained without acquiring land-use rights. The practice in Zambezia shows that on several occasions forest licences are used to coerce land right holders - local communities - off their land. The central issue is that the Land Law is not considered as a kind of baseline or overarching law for acquiring rights over land and other natural resources, with the other laws being streamlined but subsidiary.
Deficient knowledge and information. Dissemination of the legislation package has been driven primarily by civil society, organized through the Land Campaign. By nature of their role, the participating NGOs have mainly targeted communities and their leaders. The efforts of the state itself to inform local administrations have been almost non-existent, especially at the district level. In addition, local administrations have only been passively involved in the process organized by the NGOs. In cases where NGOs have taken the initiative, it has not always been welcomed, for several reasons. As a result, stakeholders are still poorly informed about the rules and regulations, rights and obligations, while NGOs have created some friction with the administrations.
The case studies have identified several tools that are currently used for conflict management, all of which are legally recognized:
Conciliation is successful when a dispute arises between two parties with equal power, such as two communities. The process deals mainly with facilitating the communication between the two parties so that the parties themselves come to an agreement. NGOs involved in land issues operate as a facilitator. They should already have been active in the area for some time, and be known and respected by the protagonists. Equally important is their knowledge of local traditions, social organization and leadership. The participation of neutral, influential and respected resource persons with a good knowledge of the history of the area and, eventually, the dispute is also essential.
It is crucial to avoid any interference from local administrations in the conciliation process. Local party and political leaders are inclined to suggest and impose solutions to land problems, and to become actively involved in arbitration. When protagonists do not want to involve these structures, this decision must be respected. Customary consensus seeking is also open-ended - there should be no deadline for coming to an agreement.
Mediation is used by different actors such as NGOs and local administrations in order to manage conflicts between communities and the private sector. These efforts have usually failed because of the great imbalance of power between the protagonists. It is only when this imbalance is somewhat redressed and communities are empowered through a range of available mechanisms, especially the registration of community land rights, that mediation can become a much stronger tool for conflict management.
The case-study material gives clear indications on the steps to be taken to make the mediation process more efficient under these circumstances:
Need for neutral mediation. Mediation is mainly conducted by ORAM and, to a lesser extent, by local administrations, but the analysis of the stakeholders involved in conflict management indicates that these cannot be considered to be neutral mediators. ORAM's advocacy role, commitment and direct support to defend community land rights is not compatible with the required profile of an independent and neutral mediator.
A major obstacle for an Independent Mediation Service may be the role that DINAGECA is now playing in the Land Law implementation process. In an effort to monopolize all activities, cadastre technicians are becoming increasingly involved in conflict management, and the line between mediation and arbitration is becoming very thin. Cadastral technicians do not necessarily have the required profile and skills; nor do they have a neutral position.
Need to use existing legal provisions and develop new ones. The current mediation efforts were implemented without referring to the existing legislation that accepts mediation as a tool for conflict management. A key issue here is monitoring the compliance with the outcome of mediation. Without real pressure for eventual recourse to justice, more powerful protagonists will not necessarily feel inclined to pay much attention to such compliance.
On the other hand, the present legislation does not provide clear practical guidelines for mediation, but indicates that these may be derived from the arbitration process. As both instruments are of a different nature, there is a need to develop specific regulations to guide mediation.
Arbitration and adjudication are the conflict-management tools that are often used by administrations operating with the assistance of the SPGC. In practical terms, this means that the arbitrator confirms or imposes a land boundary, mainly on the basis of a predefined spatial layout that has often been inherited from colonial times. In the case studies, arbitration was used to manage conflict between communities and the private sector, but there have been other cases between different communities or between two or more private interests. Arbitration brings a temporary solution to the conflicts in Zambezia, but there is no hard evidence that the outcome is sustainable.
Despite the fact that arbitration processes are ill-documented, if at all, it is possible to identify the following weaknesses from these two case studies, at least in the case of the community-private sector situation:
The identification of existing community land-use rights and their delimitation and registration in the same cadastral registry as new DUAT processes, as well as the knowledge by other stakeholders that the community has gone through this legal process, may be the best tools for both conflict resolution and prevention.
An important lesson from the Mulemba-ARPEL case is that community land delimitation should not be used to confirm or officially endorse previous arbitration decisions. The essence of the community land delimitation is that it is a participatory methodology for identifying the nature, extent and location of existing land rights, whether or not there are other, new rights that may be overlapping. When new rights overlap with existing rights, then these must be reconfirmed, again in a participatory way and in accordance with the law.
The baseline objective of community consultation is to ensure that new land rights do not clash with existing rights, and that communities are involved in some way in the subsequent management and use of local resources. Thus, the applicant seeking a new DUAT must check with the existing land-use right holders to see if the required land can be made available. When an agreement on the availability of land is reached, the conditions for its eventual use by the applicant need to be discussed and agreed upon. This leads to the second objective of the consultation process, which is to encourage agreements between communities and private investors that will bring mutual benefits to both sides through negotiation. Community consultation is thus a conflict prevention tool between communities and DUAT applicants.
The case studies show that community consultation loses much of its strength to prevent conflicts when it is used as a stand-alone tool, and when it is wrongly timed. There are also major problems with the way community consultations are conducted, often bypassing the spirit of a negotiated agreement. If these issues are not urgently addressed, community consultation may create conflicts instead of preventing them.
Combining community consultation with community land delimitation. There are at least three reasons why a community consultation process needs to be combined with the delimitation and registration of community land rights:
Community consultation as a participatory process. The spirit of community consultation, as initially conceived in the Land Law, coincides with the information and sensitization phase of the community land delimitation process (see p. 56). It includes a number of meetings spread over time dealing with the implications for the community of community land delimitation and the advantages and disadvantages of partnerships with the private sector. During the process, which is mainly implemented by NGOs, the community is also encouraged to appraise the value of the land and natural resources, with the community leadership being prepared for an eventual negotiation process. Over the last three years, however, there has been a rapid and undesirable evolution of the process that represents a marked departure from its initial concept.
First, the 1999 DINAGECA Norms and Technical Instructions excluded the participation of NGOs in the consultation process. Second, in October 2001, DINAGECA approved new and simplified procedures to deal with the handling of new private DUAT applications. The main objective of these was to reduce the handling time of a DUAT request to 90 days, but at the same time they served to downgrade the consultation process de facto to a mere ceremonial one-day event.
The opportunity for protagonists to go to court seeking a judicial resolution for a dispute or conflict has not yet been explored. A number of concerns, outlined below, must be addressed.
Exclusion of smallholders from the judicial system. It is not easy for ordinary rural citizens, even when they are organized through a community structure, to gain access to the judicial system.
Inexperienced judiciary. Since the approval of the Land Law and its instruments, the government has not taken the necessary steps to prepare its main implementing officers for their tasks. It is only since FAO initiated a training and support programme for the judiciary that district judges are being trained and brought up to date with the Land Law, as well as related forestry and environmental legislation.19 It will be some time, however, before these judges can respond more successfully to the local-level needs.
Strategies that discourage recourse to the courts. A number of strategies embraced by different institutions during the process of land law reform are discouraging communities from seeking a judicial solution for land conflicts. One strategy pursued by ORAM is to seek a consensual solution to a conflict through mediation and, consequently, to promote partnerships between communities and the private sector. It can be very difficult, if not impossible, to agree on a partnership once there has been a judicial intervention (Janet Assulai, personal communication). The Land Campaign has never considered recourse to justice as a possibility for conflict resolution. A booklet on conflict resolution only presents consensus seeking, mediation and arbitration as possible conflict management tools.
Testing the law in court. The overall conclusion may be that, at present, recourse to justice as a regular tool for managing a conflict between a community and other rights holders who have secured their land through a DUAT process is not necessarily the most promising way forward. There is a need for a small number of successful court cases in order to test and demonstrate the law in practice. As long as there is no ultimate threat of eventual recourse to justice, opportunism and speculation will persist, and not only on one side of the conflict. A good strategy might be to make extrajudicial, participatory conflict-management tools more successful and use these to their full potential.
Recent land policy reforms recognize the contribution of both the smallholder and the private sector to the national economy and promote investment in rural areas on a negotiated basis and with mutual benefits. Land disputes and conflicts abound in Mozambique, however, between holders of existing customarily acquired land-use rights (rural communities) and applicants for new land-use rights (mainly national and international private investors). Paving the way for a shift from the present conflict situation to a new partnership reality is a priority for the Government of Mozambique.
The newly approved legislative framework depends heavily on the active participation of all stakeholders in land conflict management. It provides a number of potentially powerful tools that make rural communities an active part of the process. Notwithstanding this strong and innovative legislation, there are still major problems impeding the implementation of the legislation and the use of these tools. Early stages of law implementation, lack of experience, and ill-informed institutions are important "umbrella" factors, but the strong imbalance of power between the commercial sector and the smallholder also remains a major obstacle.
The major challenge now is to make these tools operational in order to exploit their full potential, while instilling a stronger sense of ownership on the part of their users. The conflict management tools must become instruments used by ordinary people in their daily lives, and their implementation must be supported unconditionally and administered by committed governmental and non-governmental institutions without constraint.
Bias, C., De Wit, P., Otero, P. & Whiteside, M. 2001. Zambezia Agricultural Development Project Mid-term Review. Quelimane, Mozambique, World Vision.
Carrilho, J. 1993. Case studies on customary and formal administration of land and natural resources in Mozambique. TSS-1 MOZ/92/TO2/A08/12 Project. Maputo, FAO.
De Wit, P., Nyamuno, C., Shumba, M. & Mufandaedza, L. 1995. Propostas de planeamento de uso de terra. Parte 1. Questões e necessidades de uso de terra ao diferentes níveis operacionais. Maputo, National Family Sector Agricultural Programme - Preprogramme, FAO-UNDP Project MOZ/92/012, National Institute for Agronomic Research.
DINAGECA. 1999. Norms and technical instructions for the execution of the Land Law and the Regulations. Maputo, National Directorate for Geography and Cadastre.
Government of Mozambique. 1995. A política nacional de terras e estrategia para a sua implementação. Maputo, Council of Ministers.
Government of Mozambique. 1997. Lei 19/97. Maputo, National Assembly.
Government of Mozambique. 1998. Decreto 66/98, Regulamento da Lei de Terras. Maputo, Council of Ministers.
Government of Mozambique. 1999. Lei 10/99. Maputo, National Assembly.
Government of Mozambique. 1999. Lei 11/99. Maputo, National Assembly.
Government of Mozambique. 2000. Diploma Ministerial 29-A/2000, Anexo Tecnico ao Regulamento da Lei de Terras. Maputo, Ministry of Agriculture and Fisheries.
Government of Mozambique. 2001. Manual de delimitação de terras das comunidades. Maputo, Interministerial Commission for the Revision of Land Legislation, Ministry of Agriculture and Rural Development.
INIA. 1995. Diagnóstico rural rápido do sector familiar no Distrito de Xai-Xai. Maputo, National Family Sector Agricultural Programme - Preprogramme, FAO-UNDP Project MOZ/92/012, National Institute for Agronomic Research.
Negrão, J. 1995. One hundred years of African family economy: the Zambezi delta in retrospective analysis. Lund, Sweden. (Ph.D. thesis)
Norfolk, S. & Soberano, D. 2000. From conflict to partnership: a report on relationships and land in Zambézia Province. Quelimane, Mozambique, Provincial Services for Geography and Cadastre, ORAM, World Vision Zambezia Agricultural Development Project.
Tanner, C. 2002. Law-making in an African context: the 1997 Mozambican Land Law. FAO Legal Papers Online No. 26. Rome, FAO.
ZADP. 1998. Projecto piloto para a delineação da terra da comunidade local de Mutange, Namacurra. Quelimane, Mozambique, Serviços Provinciais de Geografia e Cadastro, Associação Rural para Ajuda Mútua, World Vision.
1 This article is a shortened version of a report prepared for the FAO Land Tenure Service.
2 The denomination "investor" is used in this article as an applicant for new land-use rights to develop agricultural or forest activities.
3 The term "rural household sector" or "family sector" (sector familiar) is used in Mozambique to indicate the smallholder sector. It includes community members who depend mainly on agrarian activities to meet livelihood goals. In contrast to old beliefs and assumptions that this sector only produces for subsistence, rural households also "invest" and respond to market dynamics.
4 For an excellent review of the land law development process in Mozambique, see Tanner (2002). Tanner's comments and observations on this article are gratefully acknowledged.
5 See, for instance, Carrilho, 1993; INIA, 1995; and De Wit et al., 1995.
6 In this article, DUAT or DUAT application is used for a new land right.
7 This article stipulates that all pending applications under the 1986 Regulations have to be renewed within a 12-month period from the date of its approval (08/12/1998), and automatically makes them subject to the 1997 Land Law and the 1998 Regulations.
8 The public notice (edital) should inform communities of the application for a DUAT in their area, and creates an opportunity to file objections against such a DUAT application. When it is applied at the end of a DUAT authorization process, it does not allow the intended negotiation and agreement between the community and the DUAT applicant, becoming as such a pro forma act of approval. In practice, the public notice is not always displayed at the local level, but at the premises of the District Administration.
9 In this case, ORAM can be considered a neutral conciliator.
10 The same consultation process can, however, be used when a community member wants to obtain an individual DUAT for land under his or her direct management, hence land with sort of a customary ownership status. In this case, the applicant also needs to consult the community and the neighbours of the required land. This dismemberment of community land is included in the Land Law (Article 13.5).
11 Adapted from Norfolk and Soberano, 2000. In an excellent report, Norfolk and Soberano investigate the history of some land conflicts in Zambezia. The history of this case study is documented until early 2000, and discussions on the issue are acknowledged.
12 Wetlands are used in a dynamic and opportunistic fashion, exploring changing hydric conditions of soils and microrelief distribution to the maximum. Different lands are used at different times of the year, resulting in the dispersed land-use pattern that is central to the livelihood strategies of these populations.
13 According to the Regulations, this should have taken place in December 1999, but Zambezia Province observed several extensions of the legal deadline.
14 The low activity rate of certain newly approved DUATs strongly suggests that speculation is one of these activities.
17 Zambezia Agricultural Development Programme, Mid-term Review, by C. Bias, P. De Wit, P. Otero and M. Whiteside (2001).
16 The Zambezia Agricultural Development Programme (ZADP) is financed by the UK Department for International Development (DfID) and includes a land component implemented by a partnership of SPGC, World Vision and ORAM.
18 Regulations for the Forestry Law have not yet been approved. For practical reasons, the DINAGECA technical regulations on community consultation are used, but probably these are not legally binding in this new context.
19 Project GCP/MOZ/069/NET.
