5.1 The early assessment missions provide an important analysis of the situation but they can give only a limited understanding of issues as they are carried out as short-term assignments. The first practical steps to assist the government often begin with the arrival of project staff with longer-term assignments. The focus during this early time is on activities that are of an emergency nature.
5.2 Experienced land tenure and land administration specialists should be part of the project staff. This chapter identifies key questions that they should address during the emergency stage. This work should form the basis for the identification of priorities for the development of land policies. In addition, they should identify short-term actions that can be implemented relatively quickly. Constraints with the collection of information, described in chapter 4, are likely to continue to exist, and they will affect the quality of the analysis.
5.3 The team of specialists should comprise a mix of national and international personnel. National specialists may be hard to identify as they are likely to be just as much victims of the conflict as others, but efforts should be made to find them. National specialists should bring knowledge of local procedures and languages, and the locations of land records and other essential documents. They should be well-regarded by different sectors of society. International specialists should contribute knowledge of international best practices in post-conflict settings, and should provide some independence from local controversies.
5.4 The mix of skills and expertise of land tenure and land administration specialists should be appropriate for the nature and conditions of the post-conflict setting. Expertise may be required in areas such as:
Land policy;
Land legislation;
Land tenure relevant to the conditions of the country (e.g. pastoralism if dryland areas are affected);
Land registration and cadastre;
Adjudication and dispute resolution;
Geographic information systems (GIS) and remote sensing;
Communication and dissemination programmes.
5.5 Potential stakeholders should be identified at an early stage. See Box 4. The list may be long and it may be difficult to involve all stakeholders in initial discussions. Vulnerable people such as the poor, the illiterate and those living in remote areas may have difficulty in organizing themselves, and it may not be easy to include them. Despite these difficulties, special efforts should be made to reach the poor as they are amongst the most vulnerable and their livelihoods are likely to be greatly affected by new land policies. An analysis of the interests of stakeholders should be carried out.
5.6 Is access to land on the agenda? The importance assigned to land tenure issues by those leading the recovery and reconstruction efforts should be assessed. People who set priorities for recovery and reconstruction may not view land tenure problems with the same importance that is assigned by people who experience these problems on a daily basis. Establishing institutions with the legal authority and capacity to adjudicate land rights and land disputes may not be considered important, or may be thought to be too difficult. Sometimes it has only been extreme cases of abuses of human rights that have forced the inclusion of land tenure issues on the agenda.
5.7 Land tenure issues may appear fragmented, e.g. the temporary allocation of land, the need for agricultural land to ensure food security, the need for adequate shelter, or the facilitation of access to land through a lawful claims process. These different aspects of land tenure may have differing and varying political importance during the post-conflict period. An approaching winter may highlight the need to provide emergency shelter but the importance may decline with the arrival of warmer weather.
|
BOX 4 People who have an interest in land issues may include:
|
5.8 Even if a government recognises that access to land is a source of social tension, it may not lay out a comprehensive framework for addressing the challenges. Different ministries may put forward competing claims for responsibility for land and other forms of property. Responsibilities for land administration may be allocated within a policy and legal vacuum. As a result, access to land may be achieved through a method that can be described as "self help": people doing what is necessary to survive, including occupying whatever land or buildings that are available.
5.9 What land tenure systems exist? The analysis carried out during the preliminary assessment mission should be extended. The analysis should provide the basis for the re-establishment or reform of institutions. Formal legal land tenure systems may include private sector, co-operatives and state holdings. The nature of the registration system should be assessed, e.g. whether registration documents provide conclusive proof or only prima facia evidence of land rights. The legal status of surveys and maps of land parcels should also be assessed, e.g. whether they are part of the legal record. Formal systems may differ in rural and urban areas, and rural-urban linkages should be assessed.
5.10 Formal land tenure systems may co-exist with customary tenure systems. In such cases, customary tenure may be more relevant in rural areas, and especially in more remote locations. Customary institutions may survive the conflict, possibly in altered forms. The regional variability of customs, and how they might have changed, may mean that land administrators do not have a good understanding of their specific rules. The situation may be complex. There may be several different types of customary tenure systems existing in different parts of the country, and such systems may have been affected by legislation and conflict.
5.11 How has the post-conflict situation changed the way in which access to land is acquired? The conflict may mean that traditional ways to acquire land are no longer possible, and may have introduced a multitude of competing claims to land. For example, in the early days following the end of the conflict:
People who were forced to relocate may not be able to acquire land in their home areas. They may also not have a right to acquire land in the area where they are currently located.
Discriminatory legislation introduced during the conflict may result in some people having their land expropriated. Legislation may also prevent some groups from legally acquiring land.
A breakdown in the land registration system may mean that it is impossible to determine who has legal rights to occupy private land. Large numbers of voluntary transactions may not have been registered or otherwise recorded.
A breakdown in the court or justice system may mean that it is impossible to legally resolve land disputes.
5.12 Which groups are vulnerable? Vulnerable groups should be identified as soon as possible. Examples include:
Women may be disadvantaged from holding property rights under statutory law as well as customary law.
Children separated from their family as a result of the conflict may be extremely vulnerable and may lose inheritance rights.
Ethnic or religious minorities may be discriminated against.
The poorest, who are usually the least educated, may face difficulties in understanding the processes for restitution and may lack the political connections needed for action to occur. This category may include the disabled, IDPs, and ex-combatants of low rank from the various armed forces.
5.13 What is the need for restitution? What is the extent of unauthorized occupation of land? Refugees and IDPs returning home may find that their property has been occupied by others. Unauthorized occupation may also occur on public lands. Restitution requires the adjudication of competing claims to determine who has a more legitimate claim to the land. In some cases, land claims may be relatively simple: people whose land was taken by force or fraud try to recover it from those who seized it. Other cases may be more complicated and involve several competing legitimate claims. For example, land may have been unfairly expropriated by the government during the conflict and transferred to a beneficiary who may then have legally sold the land to the current owner. In such a case, a person who owned the land before it was expropriated will try to recover it from someone who bought it in a bona fide transaction.
5.14 The nature and extent of land disputes should be analysed. See Box 5. The analysis should assess factors such as:
How many applications for restitution might be made in different regions of the country?
What different types of restitution cases might exist?
What types of people may apply for their land to be restituted?
What evidence are people likely to have to support their claims?
If people recover their property from occupants, how can those occupants be protected from becoming homeless?
Is restitution an option in all cases? If not, what other alternatives are available, e.g. compensation in money or in kind.
5.15 What problems may exist with evictions? On the one hand, the lack of alternative accommodation may make it difficult for refugees and IDPs to evict people from their land. On the other hand, evictions may be carried out by one group against another, and women may be evicted by their families from family property. Governments may also evict people in keeping with legal obligations under international agreements. Delays and difficulties with disarmament programmes for firearms may result in volatile and dangerous situations if people resist attempts to evict them.
|
BOX 5 The nature of land disputes will depend on the circumstances. There may be many potential combinations of disputes. Examples of categories of land disputes may include:
|
5.16 What legal mechanisms exist for resolving disputes over land? What is the ability of courts to hear cases in a timely manner? Is there a precedence for the use of "Alternative Dispute Resolution" approaches such as mediation and arbitration? Can informal alternative dispute resolution approaches be introduced in a way that does not undermine the formal legal system or a customary system?
5.17 What is the need to formalize rights? Some people may want to get formal rights to land that they currently occupy. For example, the government during the conflict may have transferred land to beneficiaries of a land reform but without issuing titles. In other cases, squatters may have settled without objection on land. People with little tenure security may wish to have their rights confirmed before they are dispossessed by others.
5.18 What land is needed for resettlement of landless people? Resettlement is necessary when people are unable to return to their original lands and must be accommodated elsewhere. Access to land by women and other vulnerable groups should be addressed. This may be especially important in areas of customary tenure where women may be disadvantaged. Access to land for some groups may be prescribed, e.g. in some cases a peace agreement may require the allocation of land to former soldiers.
5.19 What land is needed for agricultural purposes? The short-term and longer-term needs for land should be identified for the various stakeholders. The analysis should address the need for land for different purposes, e.g. for sedentary farmers and nomadic pastoralists. An assessment for land for grazing should take into account plans for restocking of livestock herds.
5.20 What land is needed for residential purposes? Land may be needed for the creation of land parcels in urban and peri-urban areas for people who do not wish to return to their rural homes. An assessment of longer-term solutions should address housing needs, e.g. through an inventory of damaged residences and the need for reconstruction.
5.21 What land is needed for government operations and infrastructure? Government agencies require suitable premises in order for them to carry out their operations. In addition, lands may be needed for the construction or restoration of public services. There is a danger that the acquisition of property for such purposes can become disorderly through lack of co-ordination across government, lack of understanding of government needs, lack of appreciation of budget limitations, and a rush to acquire and control resources as part of "empire-building" by some agencies.
5.22 What land is needed for temporary use? Land may be needed for:
Cultivation of seasonal crops to improve household food security and for grazing cattle;
Shelter to meet the immediate needs of returning people and others with emergency housing needs;
Facilities for peace-keeping forces, relief organizations and international aid workers.
5.23 What public land has been abandoned or is otherwise available? Is there public land that can be used either permanently or temporarily to settle people who have no other place to go? Has public land already been invaded by squatters?
5.24 What private land has been abandoned or is otherwise available? In some cases the owners of land may not return. A challenge will be defining when land is "abandoned". A government may consider land to be abandoned while its owners may consider their absence to be only temporary.
5.25 What lands are free of mines and what lands are mined? An inventory of lands that are mined should be prepared. The existence of mines may prevent people from returning to their land even if they have acquired the legal right to do so. Priority for areas to be de-mined should be established.
5.26 What land administration agencies remain? Agencies responsible for aspects of land administration should be identified, e.g. for:
Defining rules for the allocation of land;
Adjudicating claims for rights to land;
Controlling land that could be used by refugees and IDPs;
Managing land records including land registers and cadastres.
How well do these agencies work together? What strategies can be developed to co-ordinate their functions?
5.27 What technical and managerial expertise remains? The staffing levels in the agencies should be identified, and the availability of skills and gaps in capacity should be assessed. Many people may have fled. Poor educational and training standards within the land administration, reflecting general education standards, may mean that many employees are not well equipped to carry out their duties. Professionals may not know about new technologies or managerial concepts.
5.28 What buildings are available for the offices of agencies? Widespread destruction of buildings will limit the operations of land administration agencies. The assessment should identify where offices are located, the extent of damage to buildings, and what repairs can be carried out in the short-term to make them functional. The assessment should include identification of space for archives as well as operations.
5.29 What equipment exists? The equipment available should be assessed. Surveying and computer equipment may be obsolete or may have been destroyed.
5.30 What land records exist? Land records such as land registers, cadastral maps and survey field records are important sources of evidence for proving rights. Secondary information, such as telephone directories, electricity accounts and property tax records, may also be valuable in supporting claims of rights to land. Land records may be destroyed but there have been many cases where land administrators removed documents during the conflict and hid them. Land records should be analyzed, for example:
What land records have been destroyed?
What records still exist and where are they?
What records are in danger of being destroyed and damaged, and what immediate steps can be taken to preserve them? To where should they be moved?
What is the quality of existing land records? Do they reflect the true situation or have they been illegally altered? Copies may be of different dates and in different conditions.
What procedures, such as scanning, can be used for protecting land records?
What copies of land records exist, what condition are they in, and how up-to-date are they?
Are there any legal restrictions related to the management of land records? For example, in some countries, land registers are regarded as confidential records of the judiciary system. In addition, legislation may prescribe where land records are to be stored and, in such cases, special legislation may be required to allow the relocation of records.
5.31 Is corruption a factor? Is the system corrupt, with bribes being required to facilitate action? Are land allocations transparent? Who benefits from the corruption?
5.32 What changes can be made to make the land administration system operational? Becoming operational as quickly as possible may require making minimal changes to the land administration system. The introduction of extensive changes may result in substantial delays in progress if the experiences of returning staff are not useful with the proposed system.
5.33 What is the scope of government power? In order for access to land to be improved, the mandate of the government should allow it to undertake quick and decisive actions. The power of the government may depend on whether it is an internationally mandated transitional government or an independent national government. However, limitations may exist with both types of government. In some cases, internationally-led transition governments have operated in unclear constitutional situations and with an unclear legal mandate; this has created confusing and contradictory aspects of land policy. Independent national governments may be weak and face strong internal opposition which can discourage the development of certain aspects of land policy.
5.34 What means are available to develop and implement land policy? A limited availability of national experts may restrict valuable local knowledge from being included in policies. Limitations in local capacity to implement policy initiatives will delay progress in establishing the processes of land administration. Limits on resources will affect the ability of land administration agencies to employ suitable staff, purchase technical equipment and provide training. Capacity for land administration may be affected by other limitations. The destruction of basic infrastructure may limit communications, the establishment of offices and records, and the operation of equipment requiring electrical power.
5.35 What legal institutions remain? Relevant legislation should be identified. See Box 6. The legal analysis should address:
What are the major problems with existing legislation and how can it be improved? In some countries, problems with legislation may be relatively localized. However, in countries that were in a transition from a communist system to a market-oriented system, land laws related to conflicts were part of an entire legal system that had to be transformed.
How can changes be introduced to legislation? What are the procedures for promulgating laws? Are they complicated and time-consuming?
What legal mechanisms exist for allocating land rights, including restitution and resettlement? Existing legislation may be cumbersome and unsuited for a large-scale programme of restitution, especially when claimants do not have legal documentation to prove their rights.
|
BOX 6 Examples of laws to be analysed include:
|
5.36 Where customary tenure exists, the legal analysis should assess:
What legal mechanisms exist to recognise and protect customary tenure? Are there practical ways to register rights to community land such as ownership in undivided shares or as family land? Are there other ways to strengthen customary rights?
What legal provisions exist for recognizing a community as a body with legal authority, such as an association or cooperative? What are the conditions required to acquire this legal authority?
What legal provisions can be used to protect pastoral routes for transhumance?
5.37 Does the legal infrastructure discriminate against certain people? Discriminatory laws often characterize the periods before and during the conflict. They even may have been a significant factor in the outbreak of the conflict. Does legislation exclude or restrict the activities of classes of people? In some cases laws may not be discriminatory, but they may have been used in a discriminatory manner during the conflict. The experience may have resulted in feelings of resentment to those laws. Are directives and guidelines needed to establish how existing legal provisions should be used and interpreted under certain conditions?
5.38 What local expertise is available? Local knowledge of the law and practice should be used wherever possible. It is likely that the government will have to rely on some, if not most, of the existing legal framework as the basis for its operations in the post-conflict period, although this may not be acceptable to some groups of the population that had earlier experienced discrimination within that legal framework.
5.39 What ability is there to communicate effectively with other government bodies, international organizations and NGOs? A lack of co-ordination within government and with other organizations may lead to duplication of activities and inconsistent development and implementation of land policies.
At the level of the government there may be an uncoordinated and unsustainable rush to create government bodies. In some cases there may be uncertainty as to which political body consultation should be directed. For example, a body created may be disbanded at a later stage. Actions of agencies are typically not co-ordinated at the beginning. For example, a land registration agency may not be ready to deal with large numbers of documents issued by the agency that adjudicates land claims.
International organizations may establish their own agenda, without effective co-ordination with the work of others.
NGOs may operate locally with no formal forum to co-ordinate activities with the government and others.
5.40 What ability is there to communicate? A lack of ability to communicate effectively with people can lead to misunderstandings, mistrust, lack of cooperation and even violence. In a post-conflict setting where international specialists are attempting to identify policy and the legal and administration systems, a lack of knowledge of local languages can be a serious obstacle to operational effectiveness. There may be a need to apply a substantial amount of money and effort to provide interpreters. Interpretations and translations can be subject to deliberate distortion, with alterations in the meaning and intent of material. It may be necessary for several translators to review translations of particularly sensitive and important material to ensure that the correct message will be presented.
5.41 There may be a limited ability to communicate effectively because of ongoing local conflicts and limitations with infrastructure such as telephone, electricity and roads. The extent to which people in rural areas are served by radio, television and newspapers should be assessed.
5.42 What are the priority areas? The analysis should establish the scope, nature, intensity and distribution of land tenure problems in the country. It should identify how these problems are to be prioritized. It should assess the government’s ability to address them, including the provision of any legislation needed to provide the legal authority for a land administration agency to undertake actions.
5.43 What issues should land administrators be wary of addressing? Issues that require caution should be identified. For example, in some cases there may be valid reasons for not addressing issues related to customary law, and particularly if such law is not well understood by international personnel. The temptation to exclude many issues should be resisted; issues may be highly sensitive but not addressing them will not make them go away. The analysis should attempt to see how issues can be refocused to make them less divisive, e.g. specifying the allocation of land to a broad cross-section of society rather than to a single group.
5.44 Many key issues such as restitution and resettlement can be addressed only after the rules have been agreed upon and the necessary legislation and enforcement mechanisms have been put in place. They form part of the longer-term response, and introducing such initiatives in the short-term may cause problems if the approaches used differ from the rules that are adopted in later legislation. However, the analysis during the emergency stage may identify a number of interim policies and short-term actions that can be implemented. Possible actions may include the following.
5.45 Getting land on the agenda. If land tenure is not on the agenda, then time and effort should be expended to explain the importance of access to land to the government and others. The message should be clearly stated for policy-makers and administrators to understand. Access to land, while potentially being the source of emergency food, shelter and aid, can quickly become the fundamental element of political, social, cultural and economic stability. For these important reasons, the development and implementation of policies to facilitate access to land, and for its administration, should be a political, social, cultural and economic priority for a government in a post-conflict setting.
5.46 Establishment of co-ordination mechanisms. Co-ordination of government policies with regard to their implications for access to land may be achieved through the establishment of inter-agency committees. A "lead agency" should be designated within government to address issues of access to land and tenure security. Effective co-ordination mechanisms between international aid organizations, and between such organizations and the government, should be set up to improve the sharing of information and proposed actions related to access to land and land administration.
5.47 Translation of legislation and other documents. Essential legislation may have been translated from local languages for use by international specialists during the initial analysis of the legal framework. The quality of such translations should be carefully assessed and, where necessary, new translations should be prepared. Other legal and policy documents that impact on access to land should be translated as appropriate for use by the international specialists. Translators should have good knowledge of the technical content (e.g. law, economics, surveying) of the documents to be translated.
5.48 Refitting of land administration offices. Office space for key land agency units should be refitted and secured in order for them to be able to operate.
5.49 Protection of land records. Available land records should be moved to safe locations and copies of them should be made. Attempts should be made to retrieve missing land records.
5.50 Short-term training courses for land administration staff. The analysis is likely to show areas where skills are weak or missing. Short courses should be designed and implemented for key personnel to rebuild the managerial, technical and administrative capacity of land agencies. For example, early training might include topics such as project management, and use of computers and modern surveying equipment.
5.51 Structures for communication. Rumours may create insecurity and fear if people do not have a good knowledge of what is happening. Communication channels should be established to disseminate information in local languages through media such as radio, television and newspapers. Establishing good translation and interpretation facilities can be important to ensure that individual discussions, workshops and documents do not result in misunderstandings.
5.52 Short-term suspension of evictions. To prevent people from being unfairly evicted, people who are without alternative accommodation may be allowed to remain in possession of property for a defined limited period.
5.53 Suspension of new large allocations of land and the assessment of existing allocations. In many conflicts people have taken opportunities to privatize vast land holdings. Applications for temporary or permanent allocations in the form of concessions or grants of large areas of public land should be suspended and analysed to see if they represent the most appropriate use for the land. Cases where such allocations have already been made should be reviewed to see if there are valid reasons for the state to recover the land.
5.54 Allocation of temporary use rights. Until legislation is passed, temporary rights to use land might be granted. Temporary allocations should be clearly defined in order to avoid potential conflicts. It may be important to separate the ownership of land from its use. For example, there may be urgency to use productive land for economic recovery but this should not result in the legitimate owner losing the land. Owners may be willing to make their land available if short-term leases can be devised which protect their rights as well as the rights of the tenants. Short-term leases may allow vacant public lands to be used to produce seasonal crops. The use of simple, yet equitable, leases can be promoted. Information on establishing good leasing arrangements is available in FAO Land Tenure Studies 2 "Good practice guidelines for agricultural leasing arrangements", and FAO Land Tenure Notes 1 "Leasing agricultural land".
5.55 Temporary measures to deal with land claims. Before the rules for treating land claims and land disputes are finalized, people may be able to inform a land agency of their intention to apply for their land to be restituted. The agency may hold this information on file until the process for resolving land claims can be implemented.
