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Rural land markets in Moзambique, its impact on land conflicts |
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| 3. Land Reform in Mozambique |
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In the late 1990ґs, after the first democratic elections in 1994, the Mozambican government under the pressure of civil society and national and international organization drew up a new National Land Law and Policy. One of the main objectives of the law was to recognize peasant land rights to local communities, also referred on its regulations (1998) and the Technical Annex (1999) on forms how to make land delimitation. The new legislation maintains that all land belongs to the State, but seeks to protect peasant land rights through the recognition of occupation rights to the land. These regulation objects to recognized local land users since they are the ones who have protecting the land and other resources from degradation and that the land which they have historically use and occupied constitute the basis for their livelihood. Therefore community channel for land market may be established with the community rights since they have the right to acquire a collective title for using and benefiting from the land.
3.1. Implanted system for Land Rights
There are in Mozambique two systems from which someone can gain access to land, namely the statutory and customary laws. The land law and its regulations that regulate the rights and access to land and other natural resources recognized both forms of rights and use of natural resources. In general private sectors use the statutory system to gain access and rights to land and the family sector exploits the customary law. Although past laws since the colonial period through out the period after the independence tend to favor the statutory, the New Land Law (1997) attributes large importance to the customary law (community tenure rights).
3.1.1. The customary law
Mozambique is dominated by many customary tenure regimes based on traditional procedures, geographical contexts and cultural histories. These customary tenure systems are molded by different socio-economic and political processes occurred since the pre-colonial and the colonial Portuguese penetration in Mozambique to the post-independence period. According to Kloeck-Jenson 1998, the rules and norms guiding access, use control over land use, within the customary tenure system, is usually associated with a person’s membership status in social groups. In general, in Mozambique the customary system is divided by two systems, patrilineal and matrilineal kinship principles although it is believed that there is some variations of these systems according to the socio-organization of the local community, cultural group and geographical position, population density, kinship organizations, inheritance patterns, land quality, markets, and historical experience.
The matrilineal system most practices in the northern part of the country, area most occupied by the Ajaua and Makua tribes, is very often associated to the agrarian societies living in small and large scale settlements, in which the allocation of land and natural resources is determined by matrilineal rule. In general, it can be stated that the matrilineal system can be applied to succession and, or inheritance through the female line, in which a woman inherit from their mothers or maternal uncles transmit the family properties to their nephews (sister’s son). The patrilineal systems are mostly practice in the central and southern part of the country is more associated in the southern with the raising of livestock, expansive grazing lands and irrigation areas. While in the central part it is associated with Nguni Empire that occupied the south of the Zambezi River in the nineteenth century (Meyers 1995). This system refers to succession and or inheritance through the male line, in general from father to his son or other descendants. Generally, women do not inherit land since, according to local perceptions, a woman should leave the family land when she marries. She will then have the right of access to her husband's land, though in the case of divorce she would lose that right.
Land held by a customary system is often held by a group, community lineage or clan, family or individuals. In many cases when land is held by a community, families and individuals have a great deal of control over their resources and are responsible for day-to day management. In many cases private rights exist and many types of land and resources transactions take place daily among community members. In general landholders may also sell or lease other rights while not selling land itself, such as rights of tree, animals, plants and other natural resources (Whithwater, 2001).
In sum, it appears that customary tenure norms still operate widely in Mozambique. According to these norms, men have privileged access to and control over land, through inheritance. They have greater security of land tenure, at household level. Customary norms are changing, however, through increasing pressure on the land, land conflict and the emergence of a land market. The capacity to access new and fertile land is increasingly linked to the ability to pay and to mobility. In both these respects, it would further seem that men are advantaged, relative to women.
3.1.2. Statutory Law
The constitution of 1979 states and the 1990 all land and other natural resources located in land and other natural resources located in the soil and subsoil, in territorial waters and on Mozambique continental shelf are owned by the state. The state shall decide the conditions for their use and exploitation. Thus all land rights are secondary to the state’s primacy. The laws prohibit the marketing of land by sale, rent, mortgage or other types of alienation. However the law allows the selling of the infrastructures and the state to confiscate land for improper use or for public domain. In the case of wildlife this state ownership pattern aspects rises problems for game farming and ranching, for private reserves, and for community based wildlife and forest management.
The Land Law Regulations promulgated in 1987 specify how the land law should be implemented, including the competence’s of different levels of the government over the administration. For In the new land law (1997) the provincial governor grants titles to areas from 0-1000 ha, the Ministry of Agriculture to areas between 1000-10,000 ha, while the council of Ministries to areas above 10,000 ha.
According to Meyers et al (1997) these laws tended to centralize and to allocate greater control over the natural resources in the hands of the state, particularly the central government. As a result these laws failed to recognize the administrative power that existed in the local communities. However in the new Land Law the communities are now supposed to be consulted prior to approving a concession and title) request within their territory and that they participate in the resolutions of land and resource conflicts with these private interests. The law also requires that the Land Commission develop legislation that define the mechanisms to identifying representative of local communities. Another important feature of the law is that the customary systems are recognized for conflict resolution.
Furthermore, the land law recognizes that a land use rights may be acquired by the nationals” occupation in good faith” of a piece of land considered as free, and as long as they have been using the land for more than 10 years; it also says that the absence of a title does not preclude the recognition of a land use rights, especially in relation to local communities. This is based on the basic principles of new vision of the management of natural resources in which encompasses an equitable and sustainable use of the natural resources by all sectors with objective of supplying equal opportunities of access by local communities to land, while adopting appropriate practices to conserve and preserve its natural resources.
For private investors the regulation stipulated that security of tenure for private investors ( non-family or non-communities) is guaranteed by a registration title, and that security of tenure for the family sector and communities is guaranteed by occupation. In these regulation, privates individuals approach the state directly for assistance in identifying “free or available” land. The law requires that a private sector interests register the holding, acquire a title and pay a land tax.
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