Previous Page Table of Contents Next Page

Current land policy issues in Mozambique - M.C. de Quadros

Legal advisor at the Ministry of Agriculture and Rural Development and lecturer at the Law School of Eduardo Mondlane
University, Mozambique

After discussing the evolution of land rights in Mozambique during the post-Independence period, this paper looks at the main features of the National Land Policy and the legal framework for accessing and using land. It then discusses the implications of this policy and legal framework for poverty reduction. Given the important role of institutions in the implementation of the framework, the paper also analyses the current process of institutional reform, and the participation of civil society and other stakeholders. The privatization of land is currently being debated in Mozambique. Although the Constitution declares that land is the property of the state, the discussion continues, especially concerning land markets (transfer, partnerships and mortgages), seeking to promote investment. The link between land and other natural resources - in particular fisheries, minerals, forests and wildlife - is evident in the search for alternative ways of raising rural household income and empowering communities, and is considered a viable long-term strategy for the sustainable use of resources and poverty reduction. The Action Plan for the Reduction of Absolute Poverty (PARPA) and other government programmes are analysed, with suggestions for improving the way land rights can be used to foster development.

INTRODUCTION

The legal framework and economic policy chosen after Independence in 1975 had an important and still visible influence on land access and use. The introduction of the Structural Adjustment Programme and the Peace Accord of October 1992, after more than a decade of internal armed conflicts, opened the way for a reform of the Constitution and the introduction of a market economy. After discussing the evolution of land rights in Mozambique during the post-Independence period (since 1975), this paper looks at the main features of the 1995 National Land Policy and the legal framework for accessing and using land that was approved in 1997.

In the context of the development of the business sector, some of the main provisions of the Land Law are being questioned. One of the current debates is over land privatization. Although the Constitution declares that land is the property of the state, several solutions are presented by different parts of society (academics, rural organizations, bankers and the business sector) that seek to promote investment in land and development. The solutions, and their short- and medium-term viability, are analysed.

Given the important role of institutions in the implementation of the framework, the paper also analyses the current process of institutional reform, the perspectives for decentralization, and the participation of civil society and other stakeholders.

The link between rights over land and other natural resources - in particular fisheries, minerals, forests and wildlife - is evident in the search for alternative ways of raising rural household income and empowering communities, and is considered a viable long-term strategy for the sustainable use of resources and poverty reduction.

The Action Plan for the Reduction of Absolute Poverty (PARPA) and its relation to other government programmes is analysed, as well as intersectoral coordination mechanisms at central and local level. Suggestions are made as to how to improve the land policy implementation.

BACKGROUND

Land was nationalized through the Constitution, approved in 1975 when Mozambique became independent. Private land property rights and communal land rights were converted into use rights.[98] The population was organized into communal villages and cooperatives, retaining their right to use land individually.

The country adopted an economic system based on central planning. State enterprises and agencies were organized around abandoned commercial enterprises that had mainly been producing for export (citrus, cotton, copra, sugar). The cooperatives were formed by small-scale farmers who had been producing mainly food crops on modestly sized farms, and who characteristically cultivated on collective fields. It was also foreseen that small-scale farmers would consolidate their individual fields into collective fields, forming new cooperatives and organizing themselves into "communal" villages inspired by the Tanzanian Ujamaa model. This whole process had consequences for rights of access to land.

This process of movement and redistribution was accompanied throughout by the reorganization of the borders of basic territorial units of public administration. The lowest-level unit, the Locality, had previously coincided with the territories administered by the traditional authorities during the colonial period (indirect administration). Changes to these borders, and the regrouping of the population into political cells, provoked a change in power between the different lineages inside a group and territory organized according to the customary system.

From 1983 onwards, the failure of this agrarian model became more and more evident, in particular because of the dualist approach with relation to the state and cooperative sectors (O'Laughlin, 1981). This approach led to a very different public investment strategy for each "sector" in rural areas, whereas in reality both sectors were profoundly interdependent. The state enterprises had high investment and operational costs, low productivity, and systematically failed to repay credits conceded by state banks. The production of food crops was left entirely to small farmers, who had no incentives to produce for the market and lacked any kind of marketing system for their products. There were very few goods and products available to exchange for what they produced, and prices were fixed, whether for individual or cooperative farmers. The private sector only had a marginal role in the economy.

These concerns led to a liberalization of the market for some products, notably fruit and vegetables. The changes gave a new dynamism to small-scale producers, especially in peri-urban areas close to the purchasing power of urban residents. The benefits of this liberalization and its extension to other agricultural products were blocked, however, by the widening of an armed conflict that caused widespread insecurity in rural areas and a huge number of refugees and displaced people. Many rural residents sought refuge in neighbouring countries, while millions also fled to more secure parts of Mozambique, such as the major road corridors and around cities. Cultivation stopped over very large areas, and successive droughts, theft, and clandestine slaughtering also decimated the national cattle herd.

After 1987 and the introduction of the Structural Adjustment Programme, eligibility rules for bank credit made it impossible for most state enterprises to finance their activities. In 1989, the government approved the first legal instrument for their restructuring, including privatization. In some cases, negotiations were held with former shareholders interested in taking over the management of the enterprises.[99]

A new Constitution of the Republic was approved in 1990. A major focus of debate was the legal framework for land. The draft new Constitution proposed that, while land was fundamentally "state property", a future land law would establish the conditions for transferring property rights to private individuals, benefiting directly existing land users. This proposal would have allowed the concept of market value to be introduced alongside land transfers.[100]

The final text of the new Constitution recognized that the Mozambican economy would be based on market forces and in the initiative of economic actors. All types of property, including private property, were allowed. However, the Constituent Assembly rejected the proposal regarding land and introduced a clause that appeared to take land out of the market.[101] The debates of the time indicate, however, that the prohibition over the sale of land is applicable to the state. Citizens who want access to land only have to pay administrative costs linked to the titling process, and are subsequently free, in later transactions, to transmit their land rights to third parties.

The 1992 Peace Accord brought an end to insecurity in rural areas and allowed the return of millions of refugees and internally displaced people back to their original areas. At the same time, national and international investors showed a growing interest in land, seeking to buy state farms, or securing land for raising cattle, for ecotourism based in wildlife resources, for agriculture, and other uses.

Thus, a double movement in relation to land occurred. The members of the urban elite who had access to Cadastral Services exerted pressure to secure authorization to use land in areas where the influx of refugees was still in progress.[102] Some associations were created to defend the land rights of rural communities and became valuable partners in the process of legislative reform, and in the later dissemination and explanation of the new law through rural areas.[103]

The return of refugees and internally displaced people to their areas of origin was largely a peaceful process. There were cases where groups of returnees found their land occupied when they returned. Most cases were resolved at local level, involving community leaders. However, customary institutions were not capable of resolving all conflicts. When the conflict involved people from outside the community, its resolution demanded the intervention of Cadastral Services, religious bodies, Non-Governmental Organizations (NGOs), the press and others that supported the mediation process, as well as a strong attitude on the part of the community itself and its leaders. Sometimes the leaders,[104] weakened during the post-Independence period and by the war, suddenly agreed to take a more active role in land management.

Research studies[105] confirmed the existence of active traditional land management structures in rural areas. These remained practically intact despite the forced exile of some residents and played an important role in the post-war resettlement of rural populations, in the allocation of and management of land-use rights, as well as in the resolution of conflicts. The research pointed out the limitations of existing land legislation, especially the procedures for dealing with formal land applications. Public Cadastral Services could process land requests without fieldwork, using only out-of-date cadastral atlases to declare land "free" for public or private projects without any prior information about local rights. Moreover, the law allowed for the existence of two types of rights, one formal, based in titles issued by the Cadastral Services and demarcated with geo-referenced coordinates, the other applicable to rural families, both largely unused.[106]

At the institutional level, overlapping areas of responsibility between various administrative authorities dealing with land access were common, resulting in confusion over the practice of different economic activities (in particular tourism, forestry, and mining) and the existence of exclusive land-use rights. An active land market was identified, especially in urban and periurban areas, and those with potential for irrigation.

These aspects were considered in the drafting of the national land policy and the revised land legislation.

THE POLICY AND LEGISLATIVE CONTEXT

The 1995 Land Policy

The government approved the Land Policy in 1995.[107] This document takes into account some of the points raised in the various research studies and lessons learned from pilot experiments in systematic land registration in rural areas that were being carried out at the time.

The Land Policy recognized customary rights over land, including the system of transmission and inheritance[108] and the role of local leaders in the administration and management of land and in the prevention and resolution of conflicts. It proposed consultation and dialogue with communities as part of the process of new investments, and their being allowed to enter the process as partners, sharing or participating in the profits and other benefits resulting from the investment.

Two pilot experiments[109] dealt with the registration of 800 individual plots in the area of Massaca, on river banks in the south of Mozambique, and the registration of land by villages, carried out in the northern areas of cotton production that included villages and territories under customary management. The first experiment showed that there were high costs associated with geo-referencing individual plots and the difficulty of issuing titles for each plot.[110] Moreover, the dynamic nature of land use and frequent transactions meant that registered titles rapidly became out of date. The second experiment showed the viability, in a first phase, of using customary territories for registering land.

The Land Policy suggested the possibility of identifying territories occupied through customary practices, including not only cultivated areas but other areas used by rural families, and the registration of this information in the National Cadastre using a form of co-titling or condominium. To simplify administrative procedures, it proposed to avoid a double process of land registration for communities, or in other words, ending the need to first form an association before registering land.

The possibility of land titles in urban and peri-urban areas being bought and sold, and the introduction of measures to stimulate small producers who occupied land in these areas was also mentioned.

One recommendation of the National Land Policy was the need to revise land legislation in order to adapt it to the new economic reality and to simplify administrative procedures. The Policy stressed the need to have a flexible law that did not necessarily specify what to do in every cultural context, but which allowed the prevailing cultural system in each region to function with full legal recognition. In this sense, the law was to induce a "formalization of the informal" over the longer term, particularly with respect to the registration of the land of rural families.

The 1997 Land Law

A draft land law was prepared by a multidisciplinary technical group, functioning as the Secretariat of the Interministerial Land Commission. This draft was sent out for discussion to different groups and entities, including local governments and public institutions, academics, journalists, NGOs, farmer associations, women's groups, international specialists and other interested parties. It was also distributed and discussed in all the provinces. The debate was fully covered in the press, awakening not just interest in land rights, but also generating a reflection across the country on questions of culture and local aspirations, the role of public institutions, the decentralization of land administration, the specific characteristics of urban areas, and the need for both public and private investment in land.

The results were presented and discussed in a National Land Conference, with the participation of a wide range of interest groups, including civil society, political parties, parliamentary deputies, civil servants and technical specialists. The text of a proposed land law that resulted from this conference was then presented to the government. After some minor changes, it was submitted to and approved by Parliament in 1997.

The major points enshrined in the Law are related to:

The recognition of customary land rights had a major impact, both in legal terms because of its implications for the administration of justice[111] and for the process of disseminating the new law.[112] For the first time the rural population learned that it had rights and that any kind of new activity in areas it occupied had to be done through local consultation. This created a sense of having power over their areas of jurisdiction, and helped to consolidate local institutions.[113] Another consequence was the ending of campaigns by the police, who frequently participated in the compulsory expulsion of people using land considered to be the "property" of private individuals or firms.[114]

The concept of "local community" was devised to incorporate the dynamic and shifting land-use patterns of local people, in a way that is not possible using conventional surveying and "one-title, one-plot" techniques (FAO, 2002c). The concept of co-titling was considered the most appropriate to apply in this context, whereby a single land-use right held in the name of the community was equally shared by all members of that community. How they managed the allocation of individual use rights within this area was then left to the prevailing customary system in that area.

To date at least 100 communities have been delimited and in principle at least enjoy the rights conferred by the local community model and co-titling. What is clear, however, is that very few land administrators and other practitioners understand the implications of this in practice (Tanner, personal communication; and FAO project reports 2002). This is especially the case when it comes to consultation with communities and the need to ensure that all community members are brought into the decision-making process every time a significant decision is made (such as granting a new use right to an investor).

The law expressly recognizes the land rights of women, while the previous legal framework only referred to heads of household. This aspect of the law has provided the basis for initiatives involving women all over the country, producing cash and food crops, whether in areas under family management or in new areas over which women have independently acquired rights (Waterhouse and Vijfhuizen, 2001).

According to the new law, "good faith occupation" is one of the three ways in which the state grants a land-use right. It is applicable only to individual Mozambicans who have used the land for ten years or more with the conviction that they are not prejudicing the rights of anyone else. In other words, there must not have been any moral or physical violence, and the occupant must not have been subject to any contestation of his or her occupancy by third parties, by the local community, or by any state authority. This permanent occupation must take place with the knowledge of all interested parties. It is a non-titled possession, in good faith, peaceful and public, covered in Article 1258 of the Civil Code in force in Mozambique, and is converted into a definitive landuse right by the passage of time.[115] The practical effects of this means of gaining access to land were that the rights of those who had occupied and used land for at least ten years, and without a title, were safeguarded the moment the law came into force. This was the case even without any kinship links to the dominant local lineages. Both customary and good-faith occupation can be established by verbal testimonies and other evidence.

The opening up to foreign investment and the willingness to promote the participation of citizens as partners, on the part of both the government[116] and Mozambican economic agents, had led to the practice of seeking national partners for obtaining land-use rights.[117] In the context of the new law, this incorrect interpretation was clarified, and the only condition now is that foreigners must have an investment project approved in line with the legislation applicable to private investment.

Under the former Land Law, obtaining a title did not imply any costs for the applicant. It was not necessary to demarcate the land, and the taxes in place at the time were insignificant and were not even collected by the Ministry of Finance. The only expense was incurred during a visit, accompanied by technical officers of the Cadastral Services, to the area concerned to design the "esboço" (an outline map of the area with coordinates and boundaries) and confirm that the land was not "effectively occupied" by cultivated crops. This confirmation was based on the general view, still defended by many, that land rights could only be recognized over areas where homes and cultivated fields were found, and not taking into account the other remaining areas that were fundamental for family subsistence (especially for the collection of firewood, medicinal plants and other natural resources, water sources, and areas for the expansion of future generations).

Moreover, there was confusion over rights attributed by sectoral legislation, such as rights to minerals or timber, and the exclusive right to use the land. Many of those interested in mining or logging sought to secure extensive areas where these resources existed for themselves, even though entire villages could be found within these areas.[118]

The new economic situation, political stability and the low cost of land spurred a race for land titles by the urban elite and other economic agents. This situation created great insecurity in the countryside, where local people were visited by strangers who told them that, as of this moment, the land where they lived no longer belonged to them, because it had been allocated to others by decision of the authorities in Maputo or the provincial capital.

The law established the difference between an exclusive right to land and licences to exploit certain products, such as by logging and mining. Some of these exploitation rights can coexist with the multiple use of land by local people. Mining by its nature tends to exclude agricultural use, which is why the Regulations of the Land Law, and more recently the new Mining Law, have specified the need to pay fair compensation and to analyse the relative economic benefit of the mining operation.[119] New sectoral laws, notably the Forestry and Wildlife Law and the Mining Law, have been inspired by the Land Law, in so far as they also demand local consultation.

With regard to the conflict resolution, it was suggested during the debate that the Law should include a reference to creating "reconciliation bodies", made up of representatives of the communities, local administration, customary institutions and community and judicial tribunals.[120] This idea was not included in the law, as it was felt that customary institutions, and judicial and community tribunals already exist, and use adequate conciliation mechanisms.[121]

The innovations contained in the 1997 Land Law have the potential to prevent conflicts over the use of land and other natural resources, and to promote a participatory and democratic rural development process. Above all they can guarantee peace and stability. They have generally been well received by private investors who understand the scope of the legislation and the need to collaborate with local people for the protection and security of their investments.[122]

One aspect of the debate that was not made clear in the new law was the value of land and the way in which this was to be determined, before improvements to the land had been made. This question arose when some participants in the debate considered that theoretically land has no value that is distinct from the value of improvements made to it. The relevance of the role of improvements is reflected in the requirement in the law that any transaction involving rural property (prédios rústicos) must be authorized by the pertinent public administration,[123] while this requirement is dispensed with in the case of urban property transactions. This issue is important when valuing the landuse rights as part of the capital or asset base of private companies, when there are no significant buildings or infrastructure involved. On the other hand, there is a tendency to ignore the value added by activities such as clearing forest cover and preparing land for cultivation, drainage works, and other investments in land, as well as administrative and demarcation costs linked to obtaining provisional authorization or a full title.[124]

Another aspect that did not enjoy full agreement was the need for a land-use plan as a condition for acquiring a new use right through a formal request to the state, and the extinction of the conceded right in cases where the right-holder failed to implement this plan (verified by inspection visits by public administration officials).[125]

These different positions are now fuelling the debate over land privatization and the need to clarify the procedures about land title transactions.

The 1998 Regulations

After a similar process of intersectoral coordination and public debate, the Council of Ministers approved the Land Law Regulations (hereafter the Regulations) in 1998. The Regulations detailed the procedures for their implementation, namely for the acquisition of rights and titling, construction of public infrastructures implying termination of land rights, the role of the Cadastral Services, and rights and obligations of users. They also introduced other recommendations of the Land Policy that were not included in the law. Approval of the Regulations raised several questions that have been gradually resolved over time as problems and doubts have emerged during implementation.

First was the question of community consultation and the need for minimum rules governing this process. Although it can be a participatory exercise that has the potential to raise the awareness of local people about their rights, the consultation exercise is often understood by some officials to be the moment to prepare the population for being transferred to another area, to leave the land in question free for new investment. It is assumed that this transfer would be accompanied by compensation paid to the families, covering their fields and crops, wells, cultivated trees, and homes, all of which should be abandoned.[126] Given the level of poverty of the rural population, this has also become the moment chosen to make demands of the new investors, such as the construction of a school or health post, repairs to infrastructure like roads and bridges, and the installation of mills for cereals. These demands have often left the investors perplexed, as they do not feel that these activities are their responsibility. Partnership and negotiations between investors and communities were always a central principle in the Land Policy, with the Land Law introducing appropriate concepts and mechanisms to facilitate this. However, it was apparent that the types of "partnership" envisaged in practice were not appropriate and did not reflect the status of "stakeholder" which the Land Law implicitly confers on the community. These questions were analysed and it was suggested that other more sustainable forms of partnership should be sought.[127]

Second, the delay in carrying out consultations was an aspect criticized by investors, given that it was necessary to prepare several meetings with different structures at local level. Times and dates had to be agreed, implying several visits to the area, accompanied by technical staff of the Cadastral Services (whose travel and costs must be funded by the investor). To resolve this question, the Cadastral Services introduced a tax called "community incentive".[128] To solve the problem of delays, after the Regulations were approved in 2001, simplified procedures were introduced by the Ministry of Agriculture and Rural Development,[129] establishing a period of 90 days from the presentation of the initial request through to final approval, including consultation. The participation of local government bodies has been strengthened to avoid the need to bring in staff from a long way away and to reduce costs. It has been possible to process most applications in this period, because of the relatively small number of formal applications. However, the time limit has imposed heavy pressure on local technical resources and undermines key steps such as consultation.

Third, of concern during the public debate of the draft legislation and the subsequent debate in the Assembly, was the placing of vast areas of land into the hands of individuals or enterprises that did not use them. This trend was already apparent before the law was approved, and to minimize the risk of it happening, the Regulations revised the annual land taxes and established indices for adjusting the tax rate to reflect perceptions of the underlying value or potential of the area in question.[130] There was vociferous criticism of the values set, especially from cattle-producers who were trying to rebuild destroyed herds, those involved with long-term permanent crops such as forest plantations, fruit trees, sugar and palms, and those seeking to establish game farms. These criticisms led the government in the following year to approve specific taxes for these activities and for agriculture. A specific tax was also set for land located within 3 km of the coast.[131] Although the dollar equivalent of these taxes appears to be very low, they have in fact discouraged requests for very large areas.

An analysis of requests authorized and published in the Official Gazette in 2001 and in the first nine months of 2002 shows that of a total of 1 205 cases authorized, only 62 (5 percent) were for areas equal to or greater than 1 000 ha.[132] Responsibility for collecting land taxes has also passed to the Cadastral Services, with one part of the revenue allocated to these services for their own use, and another part to District Administrations.[133] The amount collected rose from US$34 700 in 1999 to US$160 000 in 2001.[134] The Regulations also gave all those with outstanding land requests one year from the date they came into force to come into line with the provisions of the new Land Law. There were some 10 000 land requests pending in the public Cadastral Services, most initiated before the new Land Law came into effect. The grace period expired in December 1999, by which time very few cases had been dealt with. Given that these cases were already recorded in the Cadastral Atlas, the entry of new investors with greater financial capacity was blocked, with negative consequences for the improvement of the rural economy (Kloeck- Jenson, 1999). With support from the Land Commission and some bilaterally funded provincial programmes, the Cadastral Services consequently developed two sets of guidelines for treating these cases at provincial level. A campaign was conducted during 2001 and 2002. Claimants were notified and asked to complete the information that was still lacking, and given a time limit to reconfirm their interest in requesting the land in question. Those who backed out were removed from the outstanding list, some requests were cancelled, and the rest were decided upon by the relevant competent agency.[135] A time limit was set for claims by old titleholders whose rights were acquired before Independence in 1975 (Portuguese settlers and their descendents). According to the old regulations, approved in 1987, these titles should have been revalidated in the years after the regulations were approved. Eleven years later, the new Regulations ended the period of revalidation and declared the formal extinction of all rights not revalidated without the need for additional formalities.

The Regulations included a formula for the community itself to select its representatives, thus avoiding the need to specify exactly who should represent the community and how they should be chosen, the only formal requirement being that a minimum of three and a maximum of nine representatives should be selected to represent the community and sign documents on its behalf.[136] Given that the Civil Code has rules relating to co-property, applicable to the communion of any other kind of right, recourse is made to cotitling, both for communities and for other citizens. A provision to identify and register public and community rights of way, thus ensuring access to water and the passage of cattle through traditional grazing routes, was included.

With a view to facilitating investment in the initial start-up phase of a landuse plan when no significant returns can be expected, the Regulations allow the provisional authorization and the later full title to be presented to credit institutions along with loan requests.[137] The title documents in this context serve more to prove that a credit applicant has the land for a given project, and not as any kind of guarantee.

The special characteristics of urban areas in relation to "good faith" occupation and the demands of planning and urbanization led the government to develop specific regulations for urban land. A proposal for urban regulations was developed in 1999 with the participation of urban development associations, private estate agencies, academics, public planning and urbanization entities, and representatives of the Municipal Councils and Assemblies.[138] This proposal did not meet with an adequate level of consensus and was not approved. The major point on which opinions differed was the possibility that good-faith occupancy for at least ten years confers a land-use right that can be titled. While the Land Law, as the underlying legislation, still applies to urban land, its effective implementation still awaits appropriate regulation.

The areas of "public domain" were reduced to nature protection zones, areas used for state defence and security, and areas needed for public infrastructure.[139] The construction of new public infrastructure, notably the Maputo - Witbank highway that links Maputo and South Africa, the gas pipeline to transport gas from Inhambane Province to South Africa, and the concession to allow private consortia to operate railways, are bringing concrete cases of the use of regulatory clauses determining what constitutes the "public domain" and the repeal of land rights, compensation payments, and the resettling of populations affected by these new projects.

The reference to community land and its registration in the National Cadastre raised the question of how to identify "a community" and delimit its borders.[140]

The Regulations specified that clear rules for this should be included in a technical annex that will also cover the delimitation of land occupied by nationals in "good faith", and the demarcation of land in the context of issuing titles.

Technical Annex to the Regulations

Following the method used to revise the Land Law and the Regulations, a wideranging exchange of experiences and opinions was encouraged. These included lessons learned from villagers, agricultural associations and communities that had already been delimited in some way. The main issues were the understanding that the area over which the community has a land-use right is much larger than that under cultivation and used for housing, and the difference between the limits of the communities and those of the territorial units of public administration.

The implications of this process are that community rights - already acquired through customary occupation - can sometimes involve very large areas, in the order of tens of thousands of hectares. For a government concerned to attract private investment, this process is often seen as a serious obstacle to development, as the delimitation exercise can result in a situation where apparently exclusive community rights exist over valuable and potentially underused natural resources. There is evident anxiety among public officials and the private sector alike, when it comes to closing off large areas, and blocking the access of national and foreign investors to rich natural resources. However, the concept of partnership and contractual relations between investors and communities is a core element of the National Land Policy. It has been defended by the donor community since the law was revised,[141] and was drafted into the Regulations. Access by investors to land and resources under community jurisdiction, through negotiated contracts, was called the "open border" model, a concept presented and approved at the National Seminar on Community Delimitation in Beira in August 1998 (Negrão, 1998; Tanner, De Wit and Madureira, 1998). This interface should operate as a mechanism to integrate the family and business sectors within a single but diversified rural economy.[142] These discussions resulted in a consensus over the basic method: "participatory rapid rural appraisal". It was agreed that this should be tested and refined in practice by selected field staff from provincial level public cadastral and extension services, provincial services of forestry and wildlife, and associations and NGOs. Over 120 field officers were first trained in three regional courses. They were then formed into multidisciplinary teams and returned to field areas to carry out 21 pilot trials of the delimitation methodology, with operational and material support from NGOs and the Cadastral Services. Reports from the trials were discussed in three national level meetings and showed the methodology to be viable and cost-effective. It was then drafted into a Technical Annex to the Land Law Regulations approved by the Minister of Agriculture at the end of 1999.[143]

To avoid systematically having to carry out delimitations right across the country - an exercise that was and still is beyond the existing capacities of national public services and NGOs - priorities were drawn up to determine where they should be carried out according to need: where there are conflicts over land and other natural resources, where new public and private investments are planned, and where communities themselves want to carry out a delimitation. In the case of border conflicts between two communities,[144] the Annex allows for the delimitation of just the part of the border in question. Partial delimitation is also allowed for in areas where new projects are planned and which clearly only affect a limited part of the area over which local people have rights.

While not formally rejected - it is a tested and legal land management tool[145] - delimitation work has not received the resources and technical support it needs. The prevailing view of the model is based upon assumptions that delimitation "closes" the borders and does not let new investors in. Yet, community-controlled land with proven use rights is in fact still accessible for outsiders through the consultation process. The law allows a range of options - joint ventures, rental and leasehold agreements, even sale (where there are already investments on the land) - open to communities and investors wanting to use their resources (FAO, 2002c).

Those who oppose delimitation in practice also argue that it is expensive and time consuming and that, like community consultation, it puts off investors and blocks development. These arguments are valid at face value - the experience of the Land Commission shows that a well- implemented delimitation involves several weeks of participatory fieldwork by a team of at least four people, vehicles, Global Positioning System (GPS) equipment, and (most costly) per-diem charges, and costs from around US$2 500 for a delimitation in a relatively accessible geographical area, to US$6 000 - 12 000 in difficult terrain such as northern Niassa province (Tanner, 2001, personal communication regarding recent new delimitations carried out with Land Commission/FAO support in Gaza Province, November 2002). The argument against this is that delimitation is a cost-effective way of proving the existing customary landuse rights of hundreds or thousands of households through a single process, and giving them added protection by recording their existence in an official Cadastral Atlas (accompanied by a certificate in the name of the community) (Tanner, personal communication 2001).

In the meantime, delimitation as an activity does not seem to be a priority for allocating resources, and the tendency in practice is to depend solely upon community consultation between investors and local people to safeguard existing rights. It is evident that the consultation process is also not always carried out within the spirit or letter of the law.

IMPACT OF POLICIES AND PROGRAMMES

Alongside the approval of the National Land Policy and the revision of land legislation, the last few years have also seen the publication of new policies and laws for natural resources and the environment (forests and wildlife, mines and ecotourism). It is now necessary to implement these new rules and see their implications for rural development and poverty reduction.

Links to other sectors

In the case of natural resources, Mozambique has acquired considerable experience with Community-Based Natural Resources Management (CBNRM). This is considered as one option for local development. First, in order for communities to participate in this process they must know their rights. This immediately contributes to a greater dynamism and protagonism among their members. The combination of land management with the management of other resources, especially forests, wildlife and fisheries, increases the internal management capacity of communities, opening the way for the participation of women in management committees and stimulating the organization of associations and interest groups. Community management initiatives attract the attention of neighbouring communities, which then also want to be included (MADER, DNFFB, Unidade de Apoio ao Maneio Comunitário de Florestas e Fauna Bravia, 2001).

CBNRM projects have been supported by a range of donors and sectoral programmes, including bilateral agencies, foundations, and international technical and lending agencies such as FAO, the International Fund for Agricultural Development (IFAD), the African Development Bank (AfDB) and the World Bank. Implementation on the ground is secured by the communities themselves, assisted by development and environmental - conservation associations and NGOs, and staff from public-sector services and national parks. Support also comes from higher-education and training institutions, and research institutions such as the Center of Forestry Research and the Institute for the Development of Small Scale Fisheries. Several cases have benefited from the combined support of different funding and implementing agents working together with the community. Nevertheless, an analysis of 58 experimental projects underway shows the fragmented nature of the programmes run by a wide range of agencies (the state, cooperation agencies, associations and NGOs), with each one defending a particular type of resource (FAO, 2001; Magano, 2001).

Implementation of the Forest and Wildlife Law and its recently approved Regulations[146] might impose a more systematic approach to this kind of activity in rural areas. The law has created Local Resource Management Councils composed of representatives of the state, the communities, the private sector, associations and NGOs that work with community development. These Councils will collaborate in the protection of forest and wildlife resources, and promote their sustainable use. A part (20 percent) of all taxes paid for the use of forest and wildlife resources will be reserved for the benefit of the communities, with the precise mechanisms for managing the delivery and use of funds still to be decided.[147]

One of the main problems identified in these projects has been land tenure insecurity. The reasons for this insecurity are based on the lack of communication between the central institutions that are often responsible for authorizing these initiatives, and the local population, as well as the lack of local information about the existing land rights of communities and the business sector. Up to now, more than five years after the Land Law was approved, it is recognized that although much has been done to raise awareness of the law, much more effort is needed (Campanha Terra, 1999; FAO, 2001).

Meanwhile it is important to note the positive results from these projects. The creation of local resource management committees is an important factor contributing to a growing capacity for management at the heart of many communities. The commercial exploitation of resources has brought various benefits, among which are communities themselves obtaining licences for cutting timber and manufacturing charcoal, and opening bank accounts or starting community funds.

Decentralization

Government intervention in land management has been characterized up to now by excessive centralization in decision-making, with the argument that this is needed to promote private investment and economic development. Local administrations in many areas feel marginalized from this process. The requirements of the Land Law regarding the involvement of local communities has forced local bodies to assume more responsibility for attracting and receiving investors. The practice of consultation is ceasing to be a merely bureaucratic exercise to deliver the signatures of local leaders on an official document so that land can be declared free for a new project. Because of the consultation process, local administrations are becoming more interested in the development of their own local territory, as opposed to simply helping people in emergencies like droughts and floods, as has been the case in the past. The fact that 12 percent of land taxes are being directed at the district level is establishing a link between the implementation of the Land Law and an increase in local revenue. This is enabling local administrations to finance activities such as studying and disseminating the Land Law.[148]

For rural areas, the government promulgated a decree covering the relationships between community authorities and local public administration bodies.[149] Implementation of these rules began in 2001 and will eventually extend to all areas of the country. The fact that community authorities include traditional leaders has added a political element to this movement. Areas of common concern are education, health, food security, culture, environment, access routes and land use.

Local authorities are also developing instruments that will allow them to be informed about the resources available and their economic value.[150] This will allow them to take decisions based on good technical data and knowledge of the local reality, notably regarding investment in public infrastructures such as roads. The decentralization movement, in spite of much resistance from central bodies, has captured the attention of local groups and benefits from a legal framework that favours its strengthening.

The participation of the civil society and other stakeholders

As discussed above in the context of the legislative review process, the involvement of the civil society meant that the new Law could reflect the aspirations of diverse groups with an interest in land and natural resources.

One interesting example of civil society intervention is the "Land Campaign". This movement brought together some 200 organizations, including associations, national and foreign NGOs, and religious groups, around the objective of disseminating the Land Law and Regulations. The Land Campaign edited and distributed a "Manual for Understanding the new Land Law", and six brochures each covering specific aspects of the new Law and the rights it confers: titling, women and land rights, conflict resolution (including the role of the media), partnerships with investors, urban land and the demarcation of areas for new investments. Theatre pieces in local languages were also produced, as well as a video. The private sector also participated in the discussions of the legal framework and institutional reform. However, it still feels that the legislation itself, as well as government programmes, especially the Programa de Investimentos Públicos na Agricultura (PROAGRI),[151] have not yet had any real impact on production.[152] These inadequacies have rekindled the debate over land privatization and the need to clarify the procedures about land-title transactions.

Land privatization

Most people agree that private property in land is a highly emotive issue. This is partly because land in Africa is not only a means of producing wealth, but also conveys a sense of cultural identity that links past, present and future generations. Mozambique is no exception, and it is sometimes difficult to express the diversity of customary practices through a single European language and abstract juridical concepts.

Many of those involved in land discussions argue that the name given to a kind of right is unimportant (for example, property, domain, etc). What is important is what you can do with this right and the other rights that come with it (such as the ability to inherit, donate, or sell it, and the ability to use it as collateral) (Bruce, Migot- Adholla and Atherton, 1994).

The question of state property in land and privatization has again become the centre of debate. This discussion began with a project to revise the Constitution in 1998, which did not achieve the necessary majority for it to be approved. One strand of opinion defends the view that land must continue to be state property. The other proposes, as in the draft 1990 Constitution, that this property right could be transferred to private individuals or firms if supported by the argument that it will be "rationally used".

The Minister of Agriculture relaunched the debate in 2001, saying that although there was a consensus during discussions of the new Land Law that it was necessary to protect small-scale farmers, the moment had arrived to begin selling land. The Mozambican Government would be open to discussions of this subject, as a group of commercial farmers was asking that land be privatized.[153] This affirmation by the Minister provoked a series of debates between the government, associations and the private sector, which were fully reported by the press. These debates brought interesting information to light about the feelings of the various groups involved. The associations that work with local people stressed that the customary system allows a series of operations, some of which are relatively sophisticated, that respond to the diverse needs of rural areas.[154] Several research studies show how land is acquired through systems that vary from region to region, and that these systems include means of access such as inheritance, marriage, donations, authorizations by local entities, sale and purchase, and renting or lending.

The private sector debated the matter and considered that forms of property evolve along with economic development. It recognized that a land market exists in Mozambique, both among urban elites (new urbanization and the expansion of the large cities), and in peri-urban and rural areas (valleys and green belts around cities producing vegetables, and rice production in flooded areas). Given that around 80 percent of the Mozambican population live from agriculture, it is the land that is the basis of their selfemployment. Access to land for this large part of the population cannot be ignored. And as small farmers transform themselves into commercial enterprises, they should have a title.[155] The private sector is currently proposing that land-use titles be freely transactionable, and that the land market should be authorized and regulated. This will allow the use of land rights as collateral to raise investment credits. Additionally, the private sector considers that it is necessary to remove the requirement in the Land Law that demands prior government authorization of transfers of rural property.[156] The February 2002 copy of the Information Bulletin of the CTA (Confederação das Associações Económicas de Moçambique) says that the debate centred around the market in titles, that it is assumed that this will improve access to credit, and that there is not yet a consensus with government over the issue.

In this context, it recommended that a study be carried on land values and land markets. In fact there is presently no way in Mozambique to estimate the value of land, for example in relation to its production capacity. Not even the banks are able to do this, and limit themselves to valuing only buildings and other constructions. In April 2002, the Land Studies Unit of Eduardo Mondlane University, in collaboration with the Human Sciences Research Council (HSRC) Southern African Regional Poverty Network (SARPN) staged the first workshop on the land market in Mozambique. The workshop clearly confirmed the existence of de facto land markets but as yet has not been followed by any further discussions.

There are limits to the argument that land privatization will attract investment, credit and tenure security. When they analyse a request for credit, the banks are mostly concerned with the development or investment project itself, followed by the reliability and reputation of the person seeking the loan. Only then is the question of guarantees raised. Their objective is not to keep the land if there are repayment problems, but to ensure that repayment is in fact made so that they can earn their profit and gain a return on the capital invested.[157] Nor are they prepared to accept small areas of land as collateral.

In a press interview, the President of the Administrative Council of BIM (Banco Internacional de Moçambique, the largest private bank in Mozambique) stated that the fact that land was the property of the state and could not be used to guarantee bank loans is a false hypothesis. A mortgage is not the most important factor for obtaining agricultural credit - far more important are the effectiveness and viability of the proposed investment.[158] The solution to the problem of the very limited amount of credit going to the agricultural sector lies in creating specialized agricultural credit banks that have different objectives to banks that are purely commercial.

Academics, associations and NGOs consider that much can be done without privatizing land, and that for the moment the fact that land is still the property of the state contributes to the stability of the country. They argue that without peace, there can be no development and no growth, and land can be the source of many conflicts. They also consider that the current Land Law prevents conflicts and also protects investors.[159] Indeed, the law officially allows:

Some of the suggestions presented include exploring all the possibilities offered by this legal framework, and avoiding concentrating land titles in the hands of a small minority who do nothing with them. The need to plan the use of land resources, create land banks in disputed areas, make land more productive, and transform it into a commodity are also suggested.[160]

For most of the people who participated in this debate, the privatization of land is not a national priority right now, considering that there are other more serious problems that need urgent solutions. Among these are a serpentine bureaucracy and the lack of transparency in the Cadastral Services, both of which need a major improvement in operational terms.

The debate about land privatization is now on hold, but it is still a current and important issue. It is possible that in the next constitutional revision, the clause will be abandoned that prohibits the buying, selling, mortgaging and alienation of land, even if land continues to be the property of the state.

Implications for the institutional framework

The implementation of the new policies and legislation will necessitate reform of the institutional framework. The main institutions involved in land management and administration are the legal registration bodies, the Cadastral Services, the Municipalities and the Tribunals.

Legal registration

There is a double system of land registration in Mozambique: cadastral and legal. The cadastral register also has a fiscal function (for tax collections, made by the Cadastral Services, which in turn receive 48 percent of the revenue generated).[161]

While the Land Law and Regulations were being revised, the idea of unifying the two registers was considered. It was decided that this was not possible in the short term at least, and the present dual system therefore remains in place. In this case it was necessary to clarify the respective responsibilities of the Property Registers (coming under the jurisdiction of the Ministry of Justice), and the Cadastral Services (under the Ministry of Agriculture and Rural Development).

Registering land is not obligatory for those who have land-use rights through customary or "good faith" occupation. The law allows them to call upon verbal testimony or other expert witness to prove their rights. Where there is serious competition over land however, and when significant investments have been made by rights holders, there is a greater demand for formalizing landuse rights through the cadastral and legal registries. In rural areas that are now being touched by urban expansion radiating from the capital Maputo, new Property Registries have recently been opened to respond to the rising demand.

Considering that most land users do not have their assets legally registered, a strategy to develop simplified registration procedures will need to be designed (delimitation is one such strategy).

The Cadastral Services

The Cadastral Services are one of the oldest public services in Mozambique, having been established early in the twentieth century as a clear instrument of colonial policy. Their mission was to serve a small colonial minority, and only in the last years of the colonial regime did they begin to register community land.

Between Independence in 1975 and the 1992 Peace Accord, there was little pressure on land. The sudden interest in land after 1992 caught the Cadastral Services off guard and poorly prepared to respond to the change in pace, resulting in the backlog of 10 000 unprocessed cases mentioned above (see page 184).[162] From the late 1990s onwards, however, the Cadastral Services benefited from significant public investment in the form of technical assistance, equipment and training. However, in the provinces in particular, the low number of technical staff with secondary or higher level training continues to limit performance.

In 1975, private surveying was prohibited and all cadastral and related work became the monopoly of the state. This monopoly was also ended in 1992 and the way was theoretically open to create a new army of private surveyors. Today, however, the very small number of private surveyors (less than 20 professionals and firms) still makes it hard for them to support the implementation of the law. Few private surveyors possess their own equipment, and they hire out to the state services, which in turn impose their own prices. There are provinces without a single private surveyor, and where the public Cadastral Services are able to impose their own prices and conditions.

At present, the Cadastral Services appear to be excessively preoccupied with formal requests for new land-use rights, a position that does not correspond with the underlying principles of the Land Policy and Land Law, or with the objectives of the Government Programme for 2000 - 2004. Their priorities for the current year include inspection visits to check on land-use plans, the development of master-plans for land use, the updating of the toponomy of the country, and the demarcation of frontiers with neighbouring countries (Newspaper Notícias, 1 April 2002). None of these activities appears to have any clear relation to the poverty reduction objectives of government programmes.

A process of institutional reform now under way will analyse the structure of the Cadastral Services and propose a more appropriate institutional framework for carrying out the objectives of the government programme.

Municipalities and urban land

After the approval of the Land Law in 1997, urban regulations were drafted and debated with representatives of elected bodies from cities and towns (municipal councils and assemblies). The government did not agree with the idea of giving general recognition to land rights acquired through good-faith occupation as foreseen in the Land Law, and the draft Regulations were not approved. According to the dominant position in the ministerial debate, such recognition could only happen if land parcels and buildings corresponded to detailed urbanization plans, which do not exist in the majority of cities and towns.

Urban planning encounters many limitations owing to a lack of human and financial resources. The confusion between the question of land rights and authorization to build does not allow these two questions to be separated, with one continuing to depend upon the other. The existing institutional framework in the cities and towns is antiquated and takes little account of interventions in urban areas that can improve the lives of the population, especially in peri-urban areas. Urban planning is considered to be the exclusive task of engineers and architects, with little attention paid to the human element and the financial implications of redesigning the way land is occupied.

Since the 1998 elections in 33 municipalities, municipal management has been a learning exercise, especially concerning the relationship between the governing institutions (assemblies and councils), the generation of revenues, and the minimal level of maintenance of public utilities (water, energy, rubbish collection, etc.) and other local tasks.

The last few years have seen a large rise in demand of land plots in the cities and towns. The development of urban infrastructure has created new suburbs where the access to land is decided on a case-by-case basis, instead of adopting more efficient and transparent measures such as public auctions. In Maputo, the construction of luxury homes on the edge of the sea by private individuals is part of the programme initiated by the municipal authority before the first municipal election in 1998;[163] this is notable for its lack of transparency.

Despite the absence of national level regulations for the management of urban land, municipalities are trying to find practical ways to deal with issues like upgrading settlements and organizing expansion areas.

Municipal Assemblies are also competent by law to approve rules concerning urbanization and building, and will undoubtedly use this power to create new regulations, taking into account local needs and particularities. However, these regulations will have to be compatible with the Land Law.

Tribunals

Studies of the system of administration of justice show that land conflicts are resolved both by judicial tribunals (especially in urban areas) and by a range of other tribunals and local structures. The latter include community tribunals, local public administration, customary authorities, the churches, and local Cadastral Services. All of these use a range of mediation and conciliation techniques (Santos et al., 2000).

In April 2001, a training programme began for provincial and district judges and state attorneys. The focus of this training is the set of three laws that principally deal with land and natural resources: the Land Law, the Forest and Wildlife Law, and the Environmental Law. The programme will also develop legal texts and manuals. Also included is a study of the role of community tribunals and their links to the formal judicial system. This study will lead on to the development of an appropriate training programme and material for upgrading the capacity of lay judges and others who manage justice at the very lowest levels.

LAND POLICY AND POVERTY REDUCTION

The Action Plan for the Reduction of Absolute Poverty

After many years of armed conflict and natural disasters, Mozambique finds itself in a challenging situation of inadequate infrastructure, poor communications, a weak system for the administration of justice, and severely limited public services. A process of institutional reform has only recently been launched which should allow the redefinition of the mission of the public services and their role in development.

Government policy meanwhile continues to focus on the fight against poverty, illiteracy, and the need to improve education and health indicators. The studies preceding the PARPA included an analysis of land access and the link between cultivated land and the relative level of poverty in rural areas. Sectoral policies like PROAGRI that preceded the PARPA, and which now form the base for its implementation, also contain actions that focus on the need to reduce poverty. The six principles of PROAGRI are linked directly to poverty reduction:

With land occupying a central position in rural life, PROAGRI includes a land component that brings together the Cadastral Services, technical and professional training in geodesics and cartography, and information about the physical attributes of land and its suitability for agriculture and other activities.

The Land Component has the following objectives:

The implementation of these objectives is proceeding unevenly and is not focusing directly on poverty alleviation issues.

Links with other government policies

In 1998 the government approved the Food Security and Nutrition Strategy, with PROAGRI clearly contributing to its objectives. Four fundamental objectives were identified for the contribution of agriculture to poverty reduction:

Intersectoral coordination mechanisms

From 1995 onwards, the Interministerial Land Commission and its Technical Secretariat offered a space for dialogue between the different sectors, academics and civil associations. Together, they established a network of contacts and a flow of information that supported the planning of activities and the coordination of different programmes. One of the benefits of this collaboration was a consensus over the methodology of intervention and the cofunding of activities.

The success of this coordination mechanism in the case of land, and in other areas such as the restructuring of state enterprises, led to the creation of various commissions and interministerial councils for specific areas (tourism, frontiers, institutional reform, rural development and others). Some 17 different interministerial coordination mechanisms were identified, some with technical secretariats, others without. The large number of such bodies at central level did not favour the creation of yet one more. The government decided to dissolve the Land Commission in December 2002, giving other institutions with responsibilities over land the task of continuing the activities promoted by the Commission, in line with their specific mandate.

At the local level, provincial governments have been functioning on the basis of statutes that date back to 1978. A priority is therefore that provincial institutions should be reformed to bring them into line with the new economic and legislative environment. These statutes should be updated, giving provincial governments a stronger role and more autonomy in the choice of interventions for reducing poverty, especially in provinces with a high proportion of vulnerable people.

An analysis of interventions at community level shows that there is already extensive collaboration between different sectors, communities and civil organizations. On the funding side, coordination between funding institutions and external donors with a view to planning and monitoring the use of funds has been a major success of PROAGRI. It is hoped that this will become a model for future programme-based funding that increasingly responds to real needs and priorities at local and national level.

The consultation of different stakeholders has had several consequences. Associations and NGOs appear to be set up for, and more interested in, sector-based work than discussions of macroeconomic questions. The private sector on the other hand complains that priority decisions taken with government are not implemented, and questions the usefulness of yet more consultation (Falck and Landfald, 2001).

In spite of these limitations, intersectoral coordination has already been shown to be a mechanism that unites diverse interests and promotes greater coherence between the interventions of the diverse actors who work on land issues and who want to use the resource.

Measures to improve implementation of land policy

The first step should be to identify the actors who support the success of the programme in the future. The main ones are government institutions, those interested in land access and use (inhabitants of the cities, private firms, small- and medium-scale farmers), associations, NGOs, and religious groups. All can play a part in carrying out the programme.

The perception among government institutions of the real needs of stakeholders must be improved, in order to bring about a different strategy for action. Lately there have been discussions over how to use the private sector, NGOs, associations and religious groups in the execution of government programmes, but the strategy is not yet clear. There is also some reluctance to share scarce funding and equipment resources. Some government institutions prefer to implement all activities by themselves.

The second step will be to identify the areas of intervention. Priority questions in this context continue as before:

The timetable for executing priority activities continues to assume a five-year budgeting and implementation cycle. Quantitative and qualitative performance indicators will periodically indicate where and how to adjust objectives and goals.

As for the institutions that will implement the programme, those dealing with land are facing a period of institutional reform. The "sector" currently includes the DINAGECA, which is also charged with the systematic mapping of the country. The Centro Nacional de Cartografia e Teledetecção (CENACARTA; the National Centre for Mapping and Teledetection) also works on mapping but with satellite images. The Machava Technical-Professional School for Geodesics and Cartography is the only one in the country dealing with this specialized area, and faces serious resource and other problems that must be resolved if it is to respond to the growing need from a range of organizations - public and private - for welltrained professionals in land administration and mapping.

Each province has a Provincial Service of Cadastre. These services come under the direction of the Provincial Directors of Agriculture and Rural Development and are thus part of the Provincial Government.

Finally, the Land and Water Department of the National Institute for Agronomic Research (INIA) has carried out many studies of agro-ecological conditions across Mozambique and the suitability of different areas for specific kinds of land use. This department can provide a great deal of information covering new investments, whether public or private, that should now be made use of in the decision-making process at the local level. For local coordination to function well, it is necessary to avoid "departmentalism" and adopt the methods already used with such success by the Land Commission: the creation of a network of contacts and the provision of a space for dialogue and the exchange of information and experiences. This could be done by a more integrated local approach. A large investment should be made in in-service training, and in the design of methodologies that are tested in the field, with the objective of reducing the administrative costs of government intervention through contracting civic and private-sector agencies.

One area for increased private-sector involvement is surveying, whether for delimiting and demarcating of areas where there is conflict over resources, or in support of new investments. Private surveying can contribute to the new subdivision of fertile areas (river valleys, priority development zones) where the private sector can be attracted through public tendering, without the need to go for the complex bureaucracy linked to new requests for land rights, and reducing the role of state entities for case-by-case approvals.

Another area where the private sector can make a useful contribution is collaborating with government institutions over land-use proposals that take into account population growth and demographic changes, and the consequent need to open up new agricultural areas. The links between the different technical sectors within agriculture (land, food and cash crop production, rural extension, livestock, forestry) should be reinforced, in such a way as to avoid departmentalism and "vertical" decisionmaking and implementation.

FINDINGS AND RECOMMENDATIONS

Findings

The government persists in treating land access on a case-by-case basis instead of opting for more efficient ways such as priorplanning and surveys, followed by public auctions or tenders.

There are difficulties in the implementation of the legal framework, because of inconsistent dialogue between central and local bodies, and the centralist attitudes of the former.

There is also a lack of integration of different government policies at the moment of implementation and too much departmentalism in the interventions of state bodies.

On the positive side, Mozambique now has a manageable and progressive legal framework for addressing poverty, and in the case of the Land Law, ample dissemination among the citizens of the country.[164] Efforts are under way to improve proceedings for land access and to give quicker responses to investment initiatives.

Recommendations

· Continue the institutional reform programme, including clarifying of the role of the state, the municipalities and Cadastral Services in the management and administration of land, reinforcing their technical capacity and updating procedures.

· Increase the intervention of the private sector in the area of planning and cadastre.

· Make information available at local level, about land use and natural resources.

· Decentralize land management and administration.

· Support programmes for base level organizations (producer associations, natural resource management committees, etc).

· Maintain a permanent dialogue with all stakeholders, especially at the local level.

BIBLIOGRAPHY

Barnes, G. & Lastarria-Cornhiel, S. 2000. Addressing the land concessions backlog in Mozambique. Washington, DC, Land Tenure Center, USAID.

Bruce, J.W., Migot-Adholla, S.E. & Atherton, J. 1994. The findings and their policy implications: institutional adaptation or replacement? In J.W. Bruce and S.E. Migot-Adholla, eds. Searching for land tenure security in Africa. Dubuque, IA, USA, Kendall/Hunt.

Campanha Terra. 1999. Continuação das actividades após o encerramento da campanha terra. Maputo, Relatório.

Casas, M.I., Silva, T., Loforte, A. & Mejia, M. 1998. Perfil do Género da Província de Nampula. Embaixada do Reino dos Países Baixos, Maputo e Nampula, Mozambique.

Chidiamassamba, C. & Rungo, C. 2001. Sistematização de experiências de delimitação de terras comunitárias: os casos de Nhakwanikwa e Chadzuka na província de Manica. MADER, DNFFB, FAO.

Confederação das Associações Económicas de Moçambique. 2002. CTA Information Bulletin, February.

De Soto, H. 2000. The mystery of capital. Citing Messick, R.E. A History of Pre-emption Laws in the US. (draft)

Falck, H. & Landfald, K. 2001. O Processo de Estratégia de Redução da Pobreza, PRSP, em Moçambique.

FAO. 2001. Arranjos institucionais para o Maneio Comunitário dos Recursos Naturais (MCRN): perfis e análise de 42 iniciativas de MCRN em Moçambique, by P.W. Matakala & P.T. Mushove. MADER, DNFFB. FAO GCP/MOZ/056/NET. Rome.

FAO. 2002a. Como fazer do direito de uso e aproveitamento de terras um instrumento mais dinâmico para o desenvolvimento de Moçambique, by C.A. do Rosário & C. Tanner. Rome.

FAO. 2002b. Mission Report, by S. Madureira. Project UTF/MOZ/070/MOZ. Rome.

FAO. 2002c. Law-making in an African context: the 1997 Mozambican Land Law, by C. Tanner. FAO Legal Papers Online 26. Rome.

FIAS/MIC/CTA/USAID/ONUDI. 2001. Moçambique: Continuando a Remover as Barreiras Administrativas ao Investimento.

Garvey, J. 1998. The nature of rights under Mozambique's Reform Land Law. University of Cape Town.

Geffray, C. & Pedersen, M. 1990. Transformação da organização social e do sistema agrário do campesinato no distrito de eráti, processo de socialização do campo e diferenciação social. Maputo, Centro de Estudos Africanos, Universidade Eduardo Mondlane. (mimeo)

Hamela, H. 2002. Títulos de terra transaccionáveis: factor de desenvolvimento agrícola. Suplemento Economia e Negócios of the newspaper Notícias 15 and 29 March and 3, 5, 12 and 19 April.

Hanlon, J. 2002. The land debate in Mozambique: will foreign investors, the urban elite, advanced peasants or family farmers drive rural development? OXFAM GB - Regional Management Center for Southern Africa.

Interministerial Land Commission. 1996. Debate of the Draft Revision of the Land Law - Report of the Technical Secretariat. National Land Conference, Maputo, 5 - 7 June.

Jenkins, P. 1999. Mozambique: housing and land markets in Maputo. Research Paper 72. School of Planning and Housing, Edinburgh College of Art - Heriot-Watt University.

Kanji, N., Braga, C. & Mitullah, W. 2002. Promoção dos direitos relativos à terra em África: que diferença fazem as ONGs? London, IIED.

Kloeck-Jenson, S. 1998. Locating the community: local communities and the administration of land and other natural resources in Mozambique. University of Cape Town.

Kloeck-Jenson, S. 1999a. Empowering local communities: concerns regarding the rights of local communities. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Kloeck-Jenson, S. 1999b. Annual land taxes in Mozambique: mounting a system to tap its potential. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Kloeck-Jenson, S. 1999c. Consulting local communities in Mozambique: issues of representation, process and documentation. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Kloeck-Jenson, S. 1999d. Addressing the "concessions in the pipeline" issue: assessing the scale of the problem and possible solutions. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Knight, R. 2002. Camponeses' realities: experiences and perceptions of the 1997 Land Law.

MADER, DNFFB, Unidade de Apoio ao Maneio Comunitário de Florestas e Fauna Bravia. 2001. Sistematização de experiências de delimitação de terras comunitárias em Manica.

Magano, S. 2001. Directório de iniciativas de envolvimento comunitário na gestão dos recursos naturais. MADER, DNFFB.

Myers, G. & West, H. 1992. State farm divestiture: historical overview. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Myers, G. & Weiss, R. 1992. Procedimentos da Segunda Conferência Nacional sobre Terra em Moçambique. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Myers, G. 1994. Competitive rights, competitive claims: land access in post-war Mozambique. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Myers, G. & Eliseu, J. 1994. Security, conflict and reintegration in Mozambique: case studies of land access in the post-war period. Land Tenure Center Project - Mozambique, University of Wisconsin-Madison - University Eduardo Mondlane.

Myers, G. & Meneses, C. 1995. Elephants in the trees: land and resource administration in Southern Maputo Province. Land Tenure Center Project - Mozambique, University of Wisconsin- Madison - University Eduardo Mondlane.

Nathan Associates, Inc. 2002. A priorização do comércio exterior. Uma estratégia de redução da pobreza para Moçambique. Maputo, USAID.

Negrão, J. 1998. Terra e desenvolvimento rural em Moçambique. Maputo. (mimeo)

Negrão J. 2002. A indispensável terra Africana para o aumento da riqueza dos pobres. Oficina do Centro de Estudos Sociais, no.179. Coimbra.

O'Laughlin, B. 1981. A questão agrária. In Estudos Moçambicanos no.3. Maputo, Centro de Estudos Africanos, Universidade Eduardo Mondlane.

Presidential Commission of Inquiry into Land Matters. 1992. Land Policy and Land Tenure Structure, Volume 1. United Republic of Tanzania.

Ministry of Agriculture and Fisheries. 2003. PROAGRI - Programa Nacional de Desenvolvimento Agrário, 1998 - 2003. Executive Summary and Master Document. Maputo, Ministry of Agriculture and Fisheries.

Quan, J. 1997. Issues in African land policy: experiences from Southern Africa. Chatham, UK, Natural Resources Institute.

Santos, B.S., Trindade, J.C. et al. 2000. Conflito e transformação social: uma paisagem das justiças em Moçambique. Porto, Portugal, Edições Afrontamento.

Tanner, C., De Wit, P. & Madureira, S. 1998. Propostas para um programa de delineação das comunidades locais. Maputo, Interministerial Land Commission.

Waterhouse, R. & Vijfhuizen, C. 2001. Estratégias das mulheres, proveito dos homens. Núcleo de Estudos de Terra (NET), UEM. Maputo, Faculdade de Agronomia e Engenharia Florestal, UEM. ACTIONAID.

[98] The Portuguese had been occupying land through various types of title, including leasehold and freehold ownership. Freehold title was especially evident in the cities, where a land market had developed during the last few years of the colonial regime. They abandoned the country en masse after independence.
[99] For example, sugar and copra agro-industries.
[100] The proposal in the draft Constitution appears to be inspired by the concept of "pre-emption", which would allow the "good faith" occupier (i.e. the current land user) to pay the land at a market price. De Soto, H. 2000, citing Messick, Richard E. A History of Pre-emption Laws in the US, draft.
[101] "Land is the property of the state and cannot be sold or alienated in any other form, nor can it be mortgaged".
[102] This land rush continued up to the time that the new Land Law was approved in 1997. Years later, when the return of population was practically complete and these same members of the elite wanted to take possession of lands for which authorization had already been granted, they found these areas occupied by the rural population. This caused conflicts, negotiations and a search for solutions to accommodate the various interest groups.
[103] In particular ORAM (Associação Rural de Ajuda Mútua), UNAC (União Nacional de Camponeses), and the movements for peace and justice in different churches.
[104] This "public service" of land management and conflict resolution rendered without any financial cost to the state significantly influenced the drafting of the National Land Policy and the Land Law.
[105] Among which are those carried out by the Mozambican academic community, by the Land and Water Department of the National Institute for Agronomic Research (INIA), by FAO and by the Land Tenure Centre (LTC), University of Wisconsin - Madison. Results of research studies in other African countries were also made available and discussed, including material from Kenya, Malawi, Botswana, Senegal, Guinea- Bissau and others.
[106] There was little knowledge about land rights and legislation by either the population or the local administration. There were at least two cases of formal titles being distributed to small farmers. The first distribution was done by the head of state in Marracuene soon after the first Land Law Regulations were approved in 1987, and was designed to call attention to the fact that titles could now be obtained. The second case was during an experiment in individual titling, in the Boane area, carried out with technical assistance from Swedesurvey and funding from the Swedish International Development Cooperation Agency (SIDA).
[107] Resolution of the Council of Ministers no. 10/95, of 17 October 1995.
[108] The 1990 Constitution had already recognized rights acquired by customary occupation and inheritance.
[109] The first was financed by SIDA; the second was carried out in the context of the Programme for Rehabilitating and Developing Agricultural Services, funded by the World Bank.
[110] For example, because some local land users lacked ID documents.
[111] The tribunals are now obliged to know and apply customary norms.
[112] Although the Water Law, approved in 1991, recognizes the rights of the community, this law is little known and Regulations for its implementation were never approved.
[113] For example, the creation of Land Management Committees and Land Law Study Groups (Chidiamassamba and Rungo, 2001; Knight, 2002).
[114] Ibid., p. 17.
[115] This legal way of acquiring land rights is common in various jurisdictions, with the period for acquiring the right varying (e.g. 10, 15 or 20 years).
[116] Política Nacional de Terras, point 17.
[117] See Moçambique: Continuando a Remover as Barreiras Administrativas ao Investimento, FIAS/MIC/CTA/USAID/ ONUDI, June 2001, p.17. This hypothesis arose during the debate over the law, but was left out of the final text.
[118] In just one province, several requests for land were registered, each with an area of 40 000 ha, for logging. In Tete Province, an "immediate provisional authorization" was issued for an individual acting in the name of a tobacco company, for 100 000 ha. In fact, the company was seeking to obtain the exclusive right to market the tobacco produced by peasant farmers in this area. Today, in legal terms, the activities of the company are regulated by the Regulation for Tobacco Cultivation and Trade.
[119] Forest and Wildlife Law - Law no. 10/99, of 7 July 1999, and Mining Law - Law no. 14/2002, of 26 June 1999.
[120] Created under Law no. 4/92, of 6 May 1992. Community Tribunals are the descendents of Neighbourhood, Village and Locality People's Tribunals created in 1978. They were separated from the structure of judicial tribunals in 1992, and today receive and give judgement over small civil conflicts following customary norms and rules.
[121] A law for the mediation and conciliation of conflicts in general was meanwhile approved (Law no. 11/99, of 8 July 1999).
[122] Even if they claim that the community consultation delays the process of applications and that communities use the consultation to seek compensation related to trees and agriculture fields.
[123] A concept in the Portuguese Civil Code inherited by Mozambique, relating to a delimited area of land and any buildings that might be on it which are not "economically autonomous". The 1998 Land Law Regulations further add that the land itself must be the principal source of income, while any buildings exist to support the economic activity carried out on the land.
[124] The Law establishes a provisional authorization for a period of five years for nationals, and two years for foreigners, to begin carrying out their agreed plan. A title document is issued only after it has been shown that the plan is underway according to the agreed timetable.
[125] This provision aims to promote the effective use of land resources, although administrative capacity to inspect and supervise the implementation of plans is limited and there is the risk that it can be used unilaterally by the administration.
[126] See Circular of the Central Cadastral Services, 21 September 1999, points III.3 E 4.
[127] Reunião Nacional sobre Consultas às Comunidades Locais, Beira, 14 - 15 June 2001.
[128] Direção Nacional de Geografia e Cadastro (DINAGECA; National Directorate for Geography and Cadestre) communication published in the national newspaper Notícias on 14 November 2001, Table 1 of the Annex of the Form. The introduction of this payment, equivalent to US$12.50, was criticized for being a derisory amount (albeit of some significance in rural areas), to pressure community representatives into signing the minutes of the consultation. The amounts paid to the cadastral technical staff who gather the signatures are much greater.
[129] Established by an Administrative Directive of the Minister.
[130] The standard rate of tax per hectare per year was set at US$2.40. Devaluation of the Metical means that this is now equivalent to US$1.25. The indices for adjusting the tax include 2 times the standard rate for land within Maputo Province, where land availability is very limited; 1.5 times the standard rate for land alongside roads and water sources; 1.5 times the standard rate for plots between 100 and 1 000 ha; and 2 times the standard rate for plots over 1 000 ha. The tax is reduced in special development areas, such as the Valley of the Zambezi River, where half the standard rate is applied. A similar reduction is applied to land used by not-for-profit organizations and charities. All citizens of Mozambique also benefit from a slight reduction of 0.8 times the standard rate. All customarily occupied land used for family subsistence is exempt.
[131] US$0.62 for agriculture and US$0.08 for livestock activities, permanent crops and game farms, US$8.30 for plots of up to 1 ha that are destined for "holiday housing", commerce or tourism.
[132] Unpublished compilation by the author based in official publications since the entry into force of the new Land Law - 1998/2002.
[133] The distribution of taxes is as follows: 40 percent State Treasury (Ministry of Planning and Finance); 48 percent Cadastral Services; 12 percent District Administrations.
[134] DINAGECA, the Programa de Investimentos Públicos na Agricultura (PROAGRI) Evaluation, 22 - 24 May 2003.
[135] During 2001 and the first three months of 2002, 1 205 authorizations were issued and published in the Official Gazette (34 percent for housing, 26 percent for diverse activities such as commerce, tourism, fisheries, construction of churches and schools, and 40 percent for agriculture).
[136] This was a major concern of Assembly deputies and one that divided the governing FRELIMO party and the opposition.
[137] The state banks were privatized in the 1990s. New private banks opened with national and foreign capital.
[138] A new legal framework for municipalities was approved in 1997. These are autonomous public entities charged with the decentralized management of towns and cities. In the following year, the first elections for members of the Assemblies and Municipal Councils were held in 23 cities and 10 towns (one in each province). The main opposition party (RENAMO) refused to participate in these elections, which subsequently involved only candidates from the governing FRELIMO party and independents.
[139] The concept of "public domain" was introduced by the 1990 Constitution and was retained in the 1997 Land Law. In the formal land law, what is now called public domain was an instrument of territorial planning, allowing discretionary decisions by the government but allowing restricted land-use rights. The 1997 Law prohibits acquiring land rights within them.
[140] The Land Law directs communities to participate in identifying the limits of land under their management.
[141] Donor Observations on the Draft Land Law, National Land Conference, 5 - 7 June 1996, p. 189.
[142] This approach is the opposite of the "tribal land" or Bantustans that existed during the apartheid regime in South Africa.
[143] Ministerial Diploma no. 29-A/2000, of 17 March 2000.
[144] Hence the role of neighbouring communities in the process.
[145] The methodology was tested through official Land Commission programmes, and is now taught to both public service and NGO field staff using an official Land Commission manual and video.
[146] Decree no. 12/2002, of 6 June 2002.
[147] This idea was inspired by the Campfire experiment in Zimbabwe, which was tested in Mozambique in the Tchuma Tchato Project, in the Zambeze river valley in Tete Province. This is an area rich in wildlife, and is exploited by a safari company, which allocates an agreed part of its income from hunting to the local population through the project.
[148] Mission Report by Madureira, S., FAO Project UTF/MOZ/ 070/MOZ, March 2002 (FAO, 2002b). Mozambique has 128 districts, and considering that each one is divided into an average of three administrative posts, there would be almost 400 places with local level public services and administration. Administrative posts are the closest territorial subdivisions to the rural population where state bodies are found.
[149] Decree no. 15/2000, of 20 June 2000, and the Regulation approved by Ministerial Diploma no. 107-A/2000, of 25 August 2000.
[150] Information gathering and thematic cartography, strategic development plans.
[151] PROAGRI is a five-year programme involving close coordination between the government and donors with respect to the planning and monitoring of a common flow of funds.
[152] The private sector also does not expect benefits that will impact on the commercial agrarian sector, especially research components and support to agrarian production. Synthesis of the Working Groups and Reflections about the Juridical Framework for Property in Land and other Constraints, 2 August, 2001.
[153] Interview with the newspaper Domingo, 8 July 2001.
[154] For example, lending money to women who lease land for rice cultivation and leave their jewels with the lender to guarantee the repayment. The lender then proceeds to lease the jewels to whomever he or she deems fit and makes a profit.
[155] This is an important issue. Private investment comes very often from the small-scale sector as it consolidates its place in the market.
[156] Consultative Group on Agriculture, August 2001 (Hamela, 2002).
[157] Debate of the Draft Revision of the Land Law - Report of the Technical Secretariat, Interministerial Land Commission, National Land Conference, Maputo, 5 - 7 June 1996 (Negrão, 2002).
[158] Interview with Mário Machungo published in the newspaper Zambeze Económico, 31 October 2002. Mário Machungo has occupied several ministerial posts, including agriculture, and was Prime Minister between 1986 and 1994.
[159] Interviews published in the newspapers Domingo, 22 July 2001, and Notícias, 13 August 2001 (FAO, 2002a).
[160] Intervention of Dr Abdul Magid Osseman in the United States Agency for International Development (USAID) Strategy Seminar, 10 - 12 October 2001.
[161] The state receives 40 percent and local Public Administration 12 percent.
[162] Reduced to around 1 000 after the analysis of pending processes, the confirmation of requests, and the cancellation of cases that are not reconfirmed or where documentation is missing.
[163] In the 1998 elections, representatives of independent groups were elected to the municipal assembly. They have challenged former land-use decisions.
[164] The Land Law, Regulations and Technical Annex are being translated into four major national languages. This will be completed in 2003.

Previous Page Top of Page Next Page