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«Protecting Community Lands and Resources Evidence from Liberia, Mozambique and Uganda Rachael Knight E XE CUTIV E SUMMAR Y Judy Adoko Teresa Auma Ali ...»

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Protecting

Community Lands

and Resources

Evidence from Liberia,

Mozambique and Uganda

Rachael Knight

E XE CUTIV E SUMMAR Y Judy Adoko

Teresa Auma

Ali Kaba

Alda Salomao

Silas Siakor

Issufo Tankar

Protecting

Community Lands

and Resources

Evidence from Liberia,

Mozambique and Uganda

E XEC U T I V E S U MMA RY Rachael Knight

Judy Adoko

Teresa Auma

Ali Kaba

Alda Salomao

Silas Siakor

Issufo Tankar

Protecting Community Lands and Resources:

Evidence from Liberia, Mozambique and Uganda By Rachael Knight, Judy Adoko, Ailas Siakor, Alda Salomao, Teresa Auma, Ali Kaba and Issufo Tankar © 2012 Namati and International Development Law Organization (IDLO) ISBN: 978-0-9858151-0-3

Published by: In Partnership with:

International Development Law Organization Namati Viale Vaticano, 106 1730 Pennsylvania Avenue, NW 7th Floor 00165 Rome, Italy Washington, D.C. 20006 USA Tel: +39 06 4040 3200 | Fax: +39 06 4040 3232 Tel: 1-202-721-5600 | Fax: 1-202-530-0128 Email: idlo@idlo.int Email: namati@namati.org www.idlo.int www.namati.org Rachael Knight cover photography Jeanne Criscola | Criscola Design design DISCLAIMER IDLO is an intergovernmental organization and its publications are intended to expand legal knowledge, disseminate diverse viewpoints and spark discussion on issues related to law and development. The views expressed in this publication are the views of the authors and do not necessarily reflect the views or policies of IDLO or its Member States.

IDLO does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of its use. IDLO welcomes any feedback or comments regarding the information contained in the publication.

Namati is an international non-profit organization working in partnership with governments and civil society organizations to implement innovative legal empowerment interventions. Namati’s publications are intended to further the expansion of the field of legal empowerment. We research and evaluate each intervention rigorously, with the intention that the lessons learned from these experiments will inform practice worldwide. The views expressed in this publication are those of the authors and do not necessarily reflect positions or policies of Namati or affiliated organizations.

All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. Formal permission is required for all such uses. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization and Namati.

Executive Summary Background In recent years, governments across Africa, Asia and Latin America have been granting vast land concessions to foreign and domestic investors for agro-industrial enterprises and resource extraction. Often, governments make concessions with a view to furthering development and strengthening the national economy. Yet in many cases, these land concessions dispossess rural communities and deprive them of access to natural resources vital to their livelihoods and economic survival. Even when communities welcome private investment, projects are often undertaken in ways that lead to environmental degradation, human rights violations, loss of access to livelihoods, and inequity.

Communities generally have little power to contest such land grants or advocate for terms more favorable to local prosperity, particularly where they operate under customary law and do not have formal legal title to their lands. In this context, communities need strong legal protections for their lands and natural resources, as well as expedient government implementation of clear, simple, and easy-to-follow legal procedures for the documentation of customary land rights.

Various nations have passed laws that make it possible for rural communities to register their lands as a single legal entity and act as decentralized land administration and management bodies (referred to herein as “community land titling” or “community land documentation”). These laws have the power to protect community lands according to customary paradigms and boundaries — including all family land, forests, grazing lands, water bodies, and other common areas critical to community survival. However, due to various political, financial and capacity constraints, these laws are often not widely or successfully implemented.

Research design and methodology To investigate how to best support implementation of such laws, the International Development Law Organization (IDLO) launched a randomized controlled trial in Liberia, Uganda and Mozambique from 2009 to 2011, entitled the “Community Land Titing Initiative.” Together with the Sustainable Development Institute (SDI) in Liberia, the Land and Equity Movement in Uganda (LEMU) in Uganda, and Centro Terra Viva (CTV) in Mozambique, IDLO supported communities to follow their nation’s community land registration laws, taking note of the challenges and successes that transpired in the course of these efforts. The first study of its kind worldwide, the intervention’s goal was to better understand both the type and level of support that communities require to successfully complete community land documentation processes as well as how to best facilitate intracommunity protections for the land rights of vulnerable groups.





4 | P ROT E CT I NG COMMUN ITY L ANDS AND RESOURC ES | EXEC UT IV E SU M M A RY

The study’s primary objectives were to:

1. Facilitate the documentation and protection of customarily held community lands through legally established community land titling processes;

2. Understand how to best and most efficiently support communities to successfully protect their lands and determine the types and level of support required to support communities in these processes; and

3. Devise and pilot strategies to guard against intra-community injustice and discrimination during community land titling processes, and to protect the land interests of vulnerable groups.

To undertake the objectives, 20 communities in Mozambique worked to complete the community land delimitation process set out in Mozambique’s Lei de Terras (1997), and 18 communities in Uganda worked to form Communal Land Associations and then seek a freehold title or Certificate of Customary Ownership (CCO) for their lands according to the procedures set out in the Land Act (1998) (Ch 227). In Liberia, due to the President’s moratorium on public land sale and the suspension of all public land sale processes (as set out in the Public Lands Act 1972-1973), the 20 study communities followed a skeletal process set out in a Memorandum of Understanding signed between IDLO, SDI and the Land Commission of Liberia.

The field teams randomly assigned these communities to one of four groups, each of which received a different level of legal services support. The various levels of

support provided were:

▸ Monthly legal education;

▸ Monthly legal education and paralegal support;

▸ Direct assistance of lawyers and technical professionals; and ▸ A control group that received only manuals and copies of relevant legislation.

While the three nations’ legal and administrative procedures differed significantly,

the study communities followed community land documentation processes that included the following six general steps:

▸ Creation and election of a coordinating committee;

▸ Boundary harmonization with neighbors (to define the limits of the land being documented) and the physical demarcation of those boundaries;1 1 In Liberia and Mozambique, the communities worked to document the perimeter of the entire community (the meta-unit), including within it both privately held family lands as well as all communal lands, water sources and forests. In Uganda however, the project was working to document and protect only communities’ large common grazing lands.

PROTEC TING C OMMUNITY L ANDS AND R E SO U RCE S | E X E CU TIV E SU M M A RY | 5

▸ Drafting and adoption of community by-laws/constitutions to govern intracommunity land administration;

▸ Drafting and adoption of community land and natural resources management/zoning plans;

▸ Election of a “governing council” responsible for the administration and management of community land and natural resources; and ▸ Administrative steps, including formal surveying or geo-referencing and completion of application forms, etc.

Project researchers tracked each community’s progress through the process, observing and recording: all obstacles confronted and their resolutions; all intra- and inter-community land conflicts and their resolutions; and all internal community debates and discussions. A pre- and post-service survey of over 2,225 randomly selected individuals and more than 250 structured focus group discussions supplemented these observations.

Unfortunately, due to the length of time it takes to facilitate community land documentation processes as well as various political, administrative and resource-related obstacles, none of the study communities has yet received a document for their customary lands. Phase II of the Initiative, to be carried out as a component of Namati’s Community Land Protection Program,2 will continue to support the study communities (including the control group) until they have all successfully attained documentation for their customary lands.

Findings and recommendations This report details the communities’ various experiences undertaking the land documentation activities and summarizes the initial impacts of these efforts under the following subject headings: conflict resolution and prevention (encompassing boundary harmonization and demarcation); intra-community governance (encompassing by-laws/constitution drafting); and conservation and sustainable natural resources management (encompassing land and natural resource management plan drafting). It then briefly reviews the obstacles confronted relative to the administrative components of the process.

The report next outlines findings relative to the optimal level of legal intervention necessary to support communities’ successful completion of community land documentation processes as well as what endogenous factors may impact a community’s success. The report then details findings concerning how best to facilitate intra-community protections for the rights of women and other vulnerable groups during the land documentaFor further detail, see http://namati.org/work/community-land-protection/.

6 | P ROT E CT I NG COMMUN ITY L ANDS AND RESOURC ES | EXEC UT IV E SU M M A RY

tion process. It concludes by setting forth findings and recommendations intended to inform policy dialogue, help nations to refine and improve the implementation of existing community land documentation processes, and provide useful insights for countries seeking to develop laws and policies for community land documentation.

One central finding is that the community land documentation process is a valuable opportunity to resolve local land conflicts. Governments and civil society actors should leverage the process to support communities to address inter- and intracommunity land disputes, which may undermine perceived tenure security and foster local or regional unrest.

A second central finding is that while the data and observations from Liberia and Uganda indicate significant changes in the study communities resulting from community land documentation efforts, in Mozambique very little change was noted. The primary difference between the processes followed was the inclusion in Liberia and Uganda of extended, iterative, and participatory processes of cataloguing, debating and adopting community by-laws/constitutions and plans for natural resources management. The research indicates that the community by-laws/constitution-drafting process was likely the primary driver of many of these impacts. Under this analysis, it becomes clear that governments and civil society actors should structure community land documentation processes to proactively address intra-community

governance, with special emphasis on leveraging the process to:

▸ Improve community land administration and management;

▸ Create mechanisms to hold leaders downwardly accountable to their constituents;

▸ Strengthen and protect the rights of women and other vulnerable groups;

▸ Foster conservation and sustainable natural resources use;

▸ Align community norms and practices with national law; and ▸ Promote local-level democracy.

The report also concludes that community land documentation may be a more efficient method of land protection than individual and family titling, and should be prioritized in the short term.

Conflict resolution and prevention: Boundary harmonization and demarcation The boundary harmonization process comprised the following activities: community mapping; boundary negotiation and conflict resolution with neighbors; and boundary demarcation (tree planting, GPS mapping, and MOU-signing ceremonies). Taken together,

the communities’ boundary harmonization experiences yield three important lessons:

PROTEC TING C OMMUNITY L ANDS AND R E SO U RCE S | E X E CU TIV E SU M M A RY | 7

1. While the potential for conflict was significant, communities’ desire to obtain documentation for their lands created a strong impetus for them to peacefully resolve long-running boundary disputes. To this end, communities adopted a wide range of conflict-resolution and compromise strategies, sometimes settling decades-old land conflicts.

2. As reported by post-service focus groups and survey respondents, the resolution of long-standing land conflicts both within and between communities appears to be having an overall positive impact on land tenure security and intra-community conflict.

3. The boundary demarcation exercises underline that community land documentation is a conflict-resolution exercise, and should be treated as such.



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