Unlike the benign handovers from the British in Zambia and Botswana, Mozambique’s vicious war of independence from Portugal, and the disastrous subsequent civil war between South African backed Renamo and Marxist Frelimo forces left Mozambique on its knees. In the 1960s, the southern capital city of Lourenco Marques (or “LM”) was a world-famous resort. Four hours from downtown Johannesburg were fabulous colonial esplanades and endless feasts of absurdly cheap seafood. Perfectly unspoiled beaches were de rigueur. It seemed as though the party was never going to stop. Apartheid looked to be unstoppable. The world didn’t care, and Africa’s steady steam of independences seemed to have stopped with Zambia and Botswana. The Portuguese had no intention of giving up their last colonial possession, and the battle for possession turned ugly. Eventually, with the ruin of a nation, the Portuguese were gone. “This exodus was characterized by vandalism on the part of the exiting Portuguese. The new government inherited a fragmented, illiterate nation and weak administrative machinery” (LandWeb).
In the 1980’s, the famous Polana Hotel was a staff mess for Frelimo officers, on leave from the jungle fronts where Renamo would fire at them with shiny new South African rifles. Shiny new Russian land mines ensured that the road from Johannesburg to what was now called Maputo, was no place for armored vehicles, never mind Toyota Corollas. Nobody went to Maputo anymore. People remembered the giant prawns and the infinity of blue seas and the Polana Hotel, but they knew better than to go anywhere near the border. People crossed that border in the middle of the night, Renamo into South Africa and Frelimo into Zimbabwe. The politics were complex and the war was bloody. Farms were burned. People fled. Hundreds of thousands of people left their traditional homes in fear of their lives. Whole areas were depopulated.
Finally, the conflict ended. Peace came uncertainly. With peace came the question of reconstruction and the need for normalization.
Today’s Mozambique under Joaquim Chissano is moving quickly into the twenty-first century, having posted impressive year-on-year growth numbers. People around the world are paying attention to Mozambique, and the country has a bright future. Mozambique’s future looks bright for a reason. That reason is a unique piece of legislation, which may be one of the most forward-looking, egalitarian and representative pieces of law making that the subcontinent has seen. The quagmire that the Portuguese left behind had all the potential for disaster that Ian Smith’s departure left for Robert Mugabe’s government. Charting a course through the landmines would be a serious challenge.
The massive upheavals of the war of independence in the 1970s weren’t the end of land-based difficulties for the Mozambicans. Christopher Tanner, with the UN’s Food and Agriculture Organization (FAO) has written a concise assessment of the post-independence situation in his exhaustive 1997 paper, “Law Making in an African Context: The 1997 Mozambican Land Law”:
“Independence led to a socialist agrarian model however, and many were disappointed. Instead of being returned to their original owners, colonial plantations were nationalized, expanded in some cases, and managed by the State in the name of the people. Other land was subject to “villagisation” and co-operative programs with roots in the Tanzanian experience. All of these new policy prescriptions once again radically altered the relationship of rural people to both their land and the State” (6).
Tanner has been substantially involved in the legislative process leading to the 1997 Land Law. Uncharacteristically (at least, for Africa), the return on a massive scale of former inhabitants to their abandoned homesteads was mostly trouble-free. Tanner elaborates:
“Meanwhile the scale of the migration back into rural Mozambique after the war served to emphasize an important and irrefutable feature of the landscape. It was indeed remarkable that the most abandoned land was reoccupied with relatively few problems. This feat was due in large part to the survival and continuing legitimacy of traditional or customary land management systems. It was evident that any new policy or legislation would have to take this reality fully into account” (7).
In an even more uncharacteristic move, possibly belying the Marxist origins of the state apparatus, and partly in response to an FAO project which "raised [several] points and argued that the existing law was not protecting all the diverse resources that local people need to maintain production strategies and allow for future needs" (Tanner, 14), the government sanctioned work on a review of land policy –
“Officially sanctioned research on the ‘land question’ began in the early 1990s, under the auspices of the then ‘Ad Hoc’ Land Commission and with support from the University of Wisconsin Land Tenure Center and USAID. Field-based reports from different parts of Mozambique began filling in the complex picture of land occupation and documented the range of issues discussed above. National Conferences were organized in 1992 and 1994, and especially in the second of these, the true complexity and scale of the land question began to emerge more clearly“ (11).
The government's initial approach was to attempt to, through a combination of validation mechanisms, allocate individual title to occupants of land, essentially creating a title-based system. According to Tanner, "Progress was slow and expensive however, with just tens of cases completed over several years" (13).
The main challenge facing the government during this period (1990-1997) was the need for a coherent land policy that addressed the needs of individual farmers, the State and private enterprise. Individual farmers had largely returned to their previous holdings and were operating according to pre-existing customary law, but traditional (and one might argue, sustainable) farming methods have the characteristic of using more land than they appear to be, at any one point in time. To correctly understand how much land a traditional community is using, it is necessary to view the land use patterns over several years, because yearly and seasonal usages vary. Land which is apparently unused (and therefore potentially ready for settlement or reallocation), may in fact be part of a "typical African farm system" (14). As Tanner observes, some resources "may be regenerating and apparently unused as part of the lengthy crop rotation cycles commonly seen in this kind of system" (14). To view this land as unoccupied would be a mistake, and to settle it, disastrous.
Private enterprise, at the same time, was responding (understandably) to an aspect of the land policy at the time which essentially made the land free to those who wished to use it.
"A provisional land use title document gave rights to a new 'investor' that were virtually freehold in all but name. And as it was not necessary to actually purchase the land, very large areas were requested and usually granted by a government driven by the new imperative of national development" (10).
The risk of a land grab were high, and in response to the first signs of exactly that, a number of different bodies, local and international, pressured the government for land policy reform. "The Government responded by abolishing several land related bodies … and creating a new Commission with a clear multi-sectoral composition" (15). Through a process of "strategy and consensus building" (Tanner), a new and coherent land policy was formed, resulting in some remarkable conclusions, and giving Mozambique a land policy which may be more appropriate (at least for the Mozambicans) than any other scheme in place, anywhere today. Engineered with the objective of wide representation from all elements of life, including community bodies, non-governmental organizations, academics and government, the Land Law of 1997 has several appealing features, which Tanner enumerates:
- State ownership of land
- Guaranteed access to land for the population as well as for investors, while promoting social and economic justice in the countryside by recognizing the customary rights of access and management by rural people over their land
- Guaranteed rights of access to and use of land by women9
- Promotion of private investment – national and foreign – without prejudicing the resident population and ensuring that both they and the public treasury benefit
- The active participation of national as partners in private enterprises
- The definition and regulation of basic guidelines for the transfer of use rights over land, between citizens or national enterprises, as long as investments have been carried out on the land in question
- The sustainable use of natural resources in a way that guarantees the quality of life for present and future generations (23)
The optimistically egalitarian nature of the 1997 Land Law is hopeful. Mozambique is a vast country with massive expanses of genuinely undeveloped land, and the administration’s cadastral services are stretched thin. Although the law promises much, and is well-intentioned, the pressure from private enterprise for unequivocal individual title is constant. External pressures, especially from Western industrial nations, is intense and in a recent visit to Washington Chissano reasserted his nation’s right to manage land in a locally appropriate fashion.
Balancing the need for even-handed local egalitarianism, there is the need to attract foreign capital investment. Without clear and outright title, Western capital interests are reluctant to invest. This is not a problem of title so much as a problem of culture. The Land Law provides for the needs of capital investors by providing a form of leasehold. Tanner’s description is useful:
The new Land Law does not provide a clear right of private property, but it does create very important and legally defendable private rights over land use. The use right conceded by the State to all land users is renewable and inheritable in the case of requests for new rights from the State, and is indefinite and inheritable in the case of existing rights acquired through customary occupation. Moreover, any investment made on the land is private property, and can be bought, sold or mortgaged.
The complications begin to emerge with the process of transmission of land use rights when investments are transferred to a third party. In urban areas this not that important, as construction normally occupies most of the land in question and transmission of the right along with the buildings that are sold or mortgaged is automatic in a de facto sense 60 . In rural areas this is not the case, and the investments that are transferred to third parties may occupy only a small part of the land area over which the previous owner has land use rights. Land in modern Mozambique does of course have real value as a productive asset, as evidenced by a very active under-the-counter land market, especially in urban areas. (38)
Whether a land grab can be avoided remains to be seen. The Land Law is a good faith effort to prevent it. A major risk factor in the initiation of a land grab is the extent of government corruption. In any government-sponsored land allocation scheme, there is a serious risk of abuse, especially in poverty-ridden nations where relatively small sums represent several years’ earnings to government officials.
Despite the risks, Mozambique is a shining beacon in terms of its social policies, and especially the intent of the Land Law. The gap between rich and poor, have and have-not is almost always about land. Hopefully, Mozambicans will be served well by this landmark legislation.
Footnote:
- Mozambique and South Africa are similar in this respect – the participation of women in the armed struggle (“La Luta Armada” in Mozambique) has ensured their place at the table in the new societies that these two countries hope to create. The Marxist sources of their “bargain” is an interesting topic for possible future research.
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