6.1 As conditions improve, attention can shift from carrying out emergency activities to the development of policy. 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 government in a post-conflict setting. Land tenure and land administration specialists are likely to encounter a wide range of policy issues (see Box 7). So far as possible, land tenure should be dealt with in a broad policy framework as distinct from a series of separate issues. This approach acknowledges the interrelatedness of issues and encourages co-ordinated responses to issues within and between the relevant institutions.
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BOX 7 Policy decisions are likely to be required for a number of issues such as:
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6.2 In practice, in the early stages of the post-conflict period the government is likely to find itself reacting to land issues rather than anticipating them. The ability to plan and develop policies for access to land and land administration is usually limited because of a lack of experienced personnel and funds, and the destruction of infrastructure and equipment. Progress may be slow at first because of problems such as poorly kept records, bureaucratic and political obstructions, over-burdened judicial courts and laws that are ineffective or cannot be enforced.
6.3 It may be difficult to implement large changes to land administration in a short time. The development of detailed policies in a post-conflict country may be a lengthy process, in part because of the sensitive nature of some of the issues. Particular aspects of access to land may be hotly debated within factions of the government, and within the wider society. At the same time, there may be great pressure to rapidly implement large new programmes to restitute land or to resettle people.
6.4 The difficult and quickly changing circumstances of the post-conflict setting may require a flexible and practical approach to the development of policies. Policies may have to be adjusted to address new circumstances or because they have had unanticipated negative consequences. A flexible approach can allow policy-makers to test policy options without a detailed legislative framework that requires continual amendment. Such approaches should still address the need for transparency of process and for community consultation. A need for flexibility may diminish as circumstances stabilize.
6.5 Among the challenges is how to implement a land administration system with the small number of skilled staff available. For example, what adjudication system can be developed so that it can function with the resources available? Personnel policies will be required to address the challenge of how to build capacity rapidly in order to provide land administration services. How can additional people be trained? A further challenge is the ability to provide services throughout the country. How rapidly can government expand and still remain able to provide services in a sustainable manner? Capacity in regions is likely to be lower than in the capital. Can local governments provide needed land administration services or should support come, even if only initially, from a centralized agency? The only responses to this reality are to prioritize the issues that must be dealt with, and to ensure that policy objectives are reasonable. See Box 8.
6.6 Policies must be translated into law and a legal infrastructure is needed for the implementation of the mandate defined in the policies. In a post-conflict country, the development of laws may be adversely affected by inexperience of the law-making body and a heavy legislative workload, with new laws being required for many aspects in addition to land tenure. An over-reliance on international advisors in the development of legislation may result in elements of foreign laws being imported without an adequate assessment as to whether they would work under local conditions. In order for land legislation to be consistent with local views as well as international human rights conventions, the development of law should be based on discussions with stakeholders such as national lawyers, judges and other property specialists, and international advisors. Such discussions should form the basis for proposals for property legislation.
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BOX 8 Reasonable policy approaches in a post-conflict setting may include:
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6.7 If there is a lack of basic legislation, there may be pressure to carry out certain activities before the enabling laws are developed. The danger is that legislation, when eventually passed, may differ from the early concepts at the time the activities were carried out. To avoid problems, the elapse of time between starting the work and the preparation of the legislation should be monitored.
6.8 Unauthorized occupations of land are an unavoidable part of post-conflict circumstances. They may not necessarily be a problem and may provide shelter and a source of food production for people who have no other alternative. But problems will arise in the medium to long-term if a solution to unauthorized occupations is not found. Solutions for land claims, however, should not be seen as a simple declaration of entitlement to land rights but should also strive to support national reconciliation. Such solutions are likely to require a co-ordinated approach to land claims and housing, and may also require the use of public lands.
6.9 Organizational structures will need to be established, for example:
Legal aid units should inform people of procedures and assist them to complete necessary forms.
A claims processing unit should collect claims and ensure that they meet the administrative requirements before submitting them for a decision.
Decision-making facilities will be needed to resolve the cases. A variety of options may be possible. See Box 9. Mediation facilities may assist people to negotiate a settlement and may be much quicker than courts to establish. Adjudication facilities such as a tribunal or court may provide a judgement on claims. Specialized land courts may be considered in order to take pressure off conventional civil courts. Mobile courts may be a way of addressing claims in remoter areas but their effectiveness should be assessed for resolving legitimate claims from people still living outside those areas. An appeal system may be necessary.
An enforcement unit should ensure that judgements are implemented. It may be necessary to evict people who do not obey an order of the court to vacate property. It may be necessary to ensure that local and national bodies are legally obliged to accept decisions of the restitution agency.
The extent to which international bodies may participate in the process will have to be determined.
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BOX 9 Adjudication is the process of providing a judgment in a dispute. Parties in the dispute may provide evidence but they do not participate in making the final decision.
Negotiation is the process where the parties jointly reach an agreement. Negotiated settlements can be effective when the dispute is moderate, and when the parties are interested in reaching a solution.
These approaches may be used in combination. Typically negotiation is tried first. If the parties fail to reach agreement, the case can go to arbitration or some other form of adjudication. |
6.10 The rules of the adjudication system will have to be defined, e.g.:
The types of claims that are eligible for restitution.
The date for which claims are valid. Claims for property taken before a certain date might not be eligible for restitution.
The people who are eligible to submit claims.
Evidence that is acceptable to support restitution claims. Land records can be an important form of evidence but in many rural areas formal land records may not exist. It may be necessary to include other types of evidence, including oral evidence.
6.11 The system should be accessible to people. People throughout affected areas should be able to easily submit claims. However, care must be taken to ensure that systematic approaches are followed throughout the country as decentralized offices without sufficient expertise or capacity may result in the imposition of arbitrary rules. Forms and information on the process should be in local languages, and should be prepared in consideration of the literacy levels of the population. A decision will have to be made whether people should pay fees for the process. If so, the fees should be affordable to people. At the same time, the system should be affordable to the government. The design of the system should reflect the limited resources available. Costing of options is needed to ensure that solutions that are designed are capable of being implemented.
6.12 Compensation may be proposed for people who cannot have their land restituted. The compensation may be equivalent land located elsewhere. Compensation schemes in the form of money have been less successful, as national governments typically have scarce resources following a conflict and donors are reluctant to capitalize compensation funds.
6.13 Evictions are a necessary part of land administration following a conflict. An eviction process should be designed and enforced under appropriate circumstances. The process should set clear standards for responsibilities for carrying out evictions and for the conditions in which they will occur in order to prevent misuse or create further problems of displaced people. For example, criteria for eviction may include that alternative accommodation is available for the occupants, and that the property will be put to immediate use following the eviction. A major test will be the extent to which powerful people can be evicted, i.e. the application of the rule of law.
6.14 The need to provide land for people who are landless or who cannot return to their homes will be unavoidable. The challenge is to find land that is available for resettlement purposes. Rural and urban linkages should be examined as many people may move from rural areas to urban centres in order to seek a living.
6.15 Public land, whether abandoned or unused, is likely to be part of the longer-term solution. Public lands may be administered by a number of different agencies. Mechanisms may have to be developed to transfer control of the lands for the purposes of resettlement. This may not be a simple matter if the agencies controlling the public lands consider themselves to be the "owner", and view the land as part of their own assets and a source of their power and prestige. Public lands may also be controlled by local governments. Their low level of capacity may have to be supplemented in order for the use of their land to be properly planned.
6.16 The use of private land that has been abandoned may be simple in some cases, e.g. when large land holdings allocated before the conflict have been abandoned and are unlikely to be reclaimed. In other cases, the use of abandoned private land, and land under customary tenure, may be complex. Care will have to be taken to ensure that problems do not become magnified, with the government creating a dispute between itself, the owners of the land, and the people who have been resettled. The nature of rights attached to land being used for resettlement should be researched carefully to ensure that users of the land will not be inadvertently dispossessed as a result. It is essential that the rights of the host communities are addressed as well as the rights of the people to be settled. See Box 10.
6.17 Vulnerable groups may require separate processes for the allocation of land. Women, and widows in particular, may have difficulty getting access to land under customary law. The needs of the vulnerable poor may be sufficiently different from others, and they are less likely to be able to pay rent and for services. If large numbers of people comprise vulnerable groups, the limited ability of government may require simplified procedures for applications and settlement. Although vulnerable groups should be provided with permanent land as soon as possible, it may be necessary to provide them initially with temporary rights to land with the understanding that they may be required to relocate in certain circumstances.
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BOX 10 In the case of resettlement, the rights of host communities should be addressed, for example:
The rights of people to be resettled should be addressed, for example:
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6.18 What sustainable administrative infrastructure is required to implement policies to improve access to land? The answer will vary according to a number of factors including the ability of land administrators to implement the policies. Financial matters will play a large role in the determination. On the one hand, investments required to re-establish the system are likely to be beyond the capacity of the government to finance. The extent of the investments made will depend on the willingness of the international community to fund them for a number of years. On the other hand, a need to keep the costs of services affordable to citizens is likely to result in low revenues for services provided by the land agencies.
6.19 Mandate and structure. Institutional responsibilities must be assigned for administrative issues such as restitution and resettlement, evictions, management of state lands and abandoned private lands, and the land registration and cadastral system. Functions for dispute resolution or carrying out evictions are commonly separated from functions related to the management of land records or of land itself. The assignment of responsibilities for land administration issues to a single agency may provide for an administratively simple solution as a single agency may reduce duplication and improve co-ordination. However, forcing the solution of a single agency is unlikely to result in these benefits if there are historical reasons and local preferences for responsibilities to be divided among several agencies.
6.20 Claims for restitution and other land disputes require decisions over rights to property. Whether such decisions can be made by a judicial court or by an administrative land agency may be defined in the constitution. If a judicial arrangement is required, it may be necessary to create a special land court if the court system is over-burdened with criminal and other civil cases.
6.21 Regardless of the structure developed, there will be a need for project management approaches to establish good co-ordination between processes, e.g. to ensure the flow of information between agencies responsible for land restitution and land registration.
6.22 Personnel. The recruitment policies for land agencies should be defined. Some trained staff may have been involved with malpractices during the conflict, or may be regarded as objectionable because of their collaboration with a particular group. However, they may have the knowledge and experience needed to re-establish operations. The costs of excluding access to the potentially valuable stock of knowledge held by such people should be weighed against the benefits of doing so. Lower-ranking personnel may not be as controversial as those who held senior positions. Staffing plans will need to address these constraints.
6.23 Standards for working conditions should be established. Sustainability of operations depends on competent and motivated staff. People are unlikely to remain motivated if they are poorly paid and work in poor conditions, and if promotion depends on personal connections rather than qualifications or competence. The situation in land agencies can become quite unstable with large numbers of staff being rotated to other units for political reasons. Such mobility can cause a loss of morale, especially if highly qualified people are replaced by people with less ability and knowledge.
6.24 Training programmes should be designed to ensure that people in land agencies and courts are aware of new land policies and legislation. Managerial staff should be trained on planning and managing the work programme. Professional staff should be trained to carry out new technical responsibilities. Building capacity for staff in land agencies should include building ideas and visions of the new land agencies, creating professional networks, and working with other stakeholders to understand their needs and requirements. An important part of building capacity is through exposure to best practice in other countries in the form of study tours, and by participating in international conferences. Training programmes should be continuous to address changes to policies, the introduction of new policies, and the change in staff through promotion, relocation or for other reasons.
6.25 Premises. An important part of the re-establishment of operations will be the renovation of offices, courtrooms and archives. The phasing of the opening of new offices has to be planned with the schedule of restitution and other processes. It is important for land administration operations to be accessible by the general public but this may not always be the case. However, if offices are blocked from the public because of security concerns, people may not be able to take part in the processes to improve access to land and land administration.
6.26 Equipment. The destruction or obsolescence of equipment may mean that equipment has to be borrowed or hired until the arrival of newly purchased equipment. Sources for the temporary supply of equipment may have to be located.
6.27 Land records. Land agencies will be required to manage increasing volumes of land records, and secure storage facilities will be required. The growth in land records should come in part as missing land records are relocated. Increases in volume will also come as restitution and resettlement programmes proceed. The storage requirements for paper documents may diminish if computer records are accepted for legal purposes. Introducing digital technology will require the development of a robust system with standard security features including the archiving of digital records in a site that is separate from the registry office.
6.28 Co-ordination between stakeholders. The co-ordination mechanisms established during the emergency phase may need to be adapted and strengthened during the period of active policy-making. As government develops during the post-conflict period, it may formulate policies on a wide range of matters that impact directly and indirectly on the land administration system. Emergent policies in areas such as humanitarian aid, migration and finance may need to be reviewed and an assessment made of their potential impact on land administration. Information on expected impacts of such policies will need to be conveyed to a policy forum such as a co-ordination group.
6.29 Consultations with stakeholders should begin as early as possible in the process in order to promote a national discussion on the provision of access to land within the institutional framework being developed. Information on restitution and resettlement programmes should be supplied to the public at an early stage, and not just when legislation is drafted. Preparation and correct timing is important as ideas often need to be communicated early in order to give time for discussion with all stakeholders. In particular, procedures on land access should be co-ordinated with local institutions. Such co-ordination should provide a link between the national land agencies and local communities. The consultation should help local communities to view decisions concerning access to land as being legitimate.
6.30 Communication. Programmes should be implemented to keep the public informed of the development of policies and legislation. Such communication reduces confusion and improves transparency of government. Information should also be given to advise people how to protect their land rights, and on the rules and procedures established for restitution and formalization of rights. A wide range of messages should be created for different audiences, and using different media such as information leaflets, posters, videos, newspapers, radio and television.
