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Integrating Land Issues and Land Policy with Poverty Reduction
and Rural Development in Southern Africa
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| 3. Special Problems and Constraints |
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While many of the discussions on land issues and policy interventions in Southern Africa were rich and robust, surprisingly little attention was given to a number of important land related issues and related policy interventions in the southern Africa papers:
1. Land Administration – A Missing Link
Land administration according to Okoth-Ogendo has 5 components – juridical, regulatory, fiscal, cadastral and conflict resolution5. Far too many papers at the conference talked about “big challenges” for land reform and all-encompassing interventions. Far too few critically analyzed weaknesses in land administration and causes of slow implementation in already existing programs. Okoth-Ogendo concludes that land administration systems in Africa have generally failed to perform the functions for which they were designed. Indeed, except for Botswana, where land administration was addressed three decades ago (Okoth-Ogendo, see also Martin Adams and Christian Graeffen), land administration has been incidental in land reforms across the continent.
A central problem for most of the “settled” states is that the juridical and regulatory components, while “first-rate” in standards and quality of implementation, were designed to serve white minority interests situated on relatively few farming units. South Africa has gone the furthest in trying to redress racially-biased legislation. However, implementation has been slow and little progress has been made with making regulatory and cadastral functions affordable for the population at large. The very attributes that supported large-scale, capital intensive farming in the “settled” states – precise delineation of boundaries and full ownership based on deed registration to protect land rights and secure mortgage capital – are difficult to replicate or extend to the poor because of limited supply of land delivery services and steep costs.
For the “non-settled” states, government inherited limited governance skills and public infrastructure at the time of independence, and in the case of Angola and Mozambique, the human and physical capital that did exist was decimated by war.
Okoth-Ogendo offers some practical guidelines for moving forward, and calls for the need to redesign all aspects of the land administration function with greater emphasis given to a simplified legal framework, more efficient land administration, user-friendly dispute processing, and better business practices. Yet, who is to take the lead for design and implementation? As several commentators from civil society organizations pointed out, while land administration is at the heart of land policy, “in no country, has government or the state behaved responsibility in land matters.” A good part of the answer lies in the need to move toward a system of land administration that is citizen-led, community-based and democratic to help re-center land administration at a local level
(Alden Wily)6
Furthermore, according to Clarissa Fourie, land policy development must take into account what is practical and doable in terms of the present “toolbox” of legal and regulatory tools; in too many cases, impractical land policy is the result of technical (legal) tools not being available to deliver the land policy approaches being developed7. While a number of technical professionals outlined new approaches using modern technology (e.g. GIS, digital mapping devices) at the conference, Fourie concludes that these tools are not appropriate or sufficient for Africa’s requirements.
2. Community Ownership – The Way Forward?
The juridical and regulatory components of land administration systems in Southern Africa were built upon the foundations of full ownership and a single-farmer ethic, while land tenure in customary areas and many of the emerging farming units under land reforms in Southern Africa exhibit group forms of ownership. There is legislation that allows for partnerships and trusts in many countries with the region, but in most cases these have proven inadequate for registering community entitlements. In other cases new legal instruments have been designed (e.g. equity sharing schemes and common property associations in South Africa), but considerable planning and outreach efforts are required to determine membership, assess resources, evaluate land use potential, build skills, extend knowledge, design governance structures, build trust, and generally adapt and apply legal instruments to localized conditions and populations with meager resources.
Without decentralization of land services, and devolution of governance to localized levels, there is great risk of failure and empty promises. As noted by Liz Alden Wily, in no case within Southern Africa has the power to govern land tenure been devolved to democratically elected community level bodies.8 Why hasn’t the ultimate leap been taken towards Community Land Boards, community-decisionmaking, and community land rights (Alden Wily)?
Part of the answer lies with old habits, entrenched interests, and state failures, but there are technical problems as well. While group registration and sectional title is now possible in a number of Southern Africa countries (Mozambique, South Africa), what according to Clarissa Fourie is the spatial unit of observation for juridical, regulatory and cadastral purposes? Is it the individual, the chief, a village council, or group of communities, and what are the rights of each and for what specific units of land? There are also risks that land rights are eroded by adherence to customary law, or for example in South Africa, Swaziland, Malawi, Lesotho and Mozambique, that land rights newly won by beneficiaries become subservient to the control of chiefs and traditional authorities (see Cousins a la South Africa).
Alden Wily presses instead for a system of more “loosely” defined boundaries based on what landholders themselves decide is workable and sustainable. Emphasis should be placed on recording land rights based on locally agreed upon boundaries, rather than rigorous survey of parcel measurement and mapping which are neither feasible nor sustainable in present day Africa. The emphasis in sum should be on a land administration system that is fast, cheap, efficient and reliable. While such system might constrain secure access to financial capital or high-cost, fixed-place investment (which for most rural areas in Africa are not yet important constraints), it should nevertheless provide sufficient underpinnings for the emergence of a land rental market to increase land use intensity.
What is the optimal system? A division remains between the surveying community and social scientists about both approach and mechanisms. More than one speaker or commentator derided precision surveying and GIS tools as too costly and infeasible. Yet, a number of surveyors also raised the future costs from land conflicts and lack of mortgagibility that will stem from “cheaper” and more-cost effective mechanisms being proposed in such countries as Lesotho and Mozambique. Ultimately, both positions are right; the key to bridging these two opposing views is the ability to upgrade tenure as demand so warrants. Such upgradability however seems distant in many land policies, and even in cases of Mozambique where an individual can de-link his/her tenure from the community’s, ease of implementation and certainty of rights have not yet been proven.
3. Financial Capital and Investment
There remains another problem, in some ways specific to the “settled” states of southern Africa, but with longer term implications for all countries within the region. Can or will group ownership schemes provide “easy” entry and exit for members, adequate incentives for individual investment, secure incentives for capital accumulation, and increased access to long-term financial capital through use of land as collateral. A significant contingent dismissed these concerns; according to one commentator, “…title has not increased access to financial capital for smallholders anywhere on the continent because so many other preconditions must in addition be met.” Others noted that with advances in micro-finance and group forms of security, this issue is rendered unimportant.
While this may be true for much of rural Africa today, the situation in the “settled” states is much different. There, commercial farms are highly indebted and hold considerable capital value. Land value is maintained with substantial capital investment, and cash flow problems do constrain investment. In the redistribution of land from large-scale farms to beneficiaries, the ability to maintain the present stock of capital, let alone make new investment, will depend on linkages with financial sector institutions. Even if rural landholders through savings and micro-finance can secure financial capital for short term inputs in agriculture, such instruments will not be sufficient for housing and many long-term improvements.
How then are new land reform beneficiaries in trusts, common property associations, and individuals within communities able to borrow? Due to problems of moral hazard, free-riding and cooperative “failures” in group ownership models, individual ownership has become the mantra for land administration in economic development. If “community-led” development is to succeed, answers to a number of basic problems will need to be found – relatively easy entry and exit of the individual from the community and his or her liquidation of land and property shares, relatively easy access to mortgage capital for individual investment, and incentives made proportional to assets held by individuals within the community. Many if not most group ownership models still lack the ability to deliver these benefits.
4. HIV/AIDS
The paper by Drimie was one of the few that seriously examined the relationship between HIV/AIDS, land issues, and livelihood strategies despite very high infection rates in the Southern Africa region. According to Drimie, many customary tenure systems provide little tenure security to women on the death of their husband as land falls back to the husband’s lineage. HIV/AIDS not only affects the productivity of the infected, but also pulls labor of the household and extended family away from other productive and reproductive activities as others take care of the sick. Savings are consumed. Assets are sold to help pay for medical expenses. Farm-land utilization declines as inputs become unaffordable, household labor supply is reduced, and dissipating wealth makes hiring labor difficult. Sooner or later, households fall below the social and economic threshold of “survivability” leaving the survivors – mainly the young and elderly – with limited resources to quickly regain sustainable livelihood. According to Cherryl Walker, SubSaharan Africa is the only region in the world where infection rates for women are higher than for men. As women usually care for the sick and orphans, HIV/AIDS limits the amount of time women can devote to agriculture and to social networks. Walker’s paper in addition raises the concern of HIV/AIDS creating social instability and conflict, and the breakdown of sexual mores that result from military destabilization, refugee crisis and war.
What then is the implication for land tenure? Land uses, according to Drimie, shift to less labor-intensive uses; in some cases land is left fallow or abandoned. Cattle are often sold to cover HIV/AIDS related expenses, depriving households of draft power that would otherwise be used to help increase labor productivity. As noted by Drimie, infected households in Lesotho and South Africa used sharecropping arrangements as a means to raise cash, share output, or to avoid land underutilization or abandonment that might result in repossession.9 Children of HIV/AIDs affected families suffer from poverty in the short run and risk losing their future inheritance if land is taken away by traditional authorities or the state due to abandonment or underutilization. Households need assurance that they will not be evicted as farmworkers because of illness, or if land is held, that their land ownership is secure. Informal land markets have allowed households to sell land in some situations.10 However, forced removals of widows from land and property grabbing are significant concerns.11 Land codes in a number of countries (e.g. Lesotho and Mozambique) specify that land not used for a specified number of years in succession will revert to the allocating authority.12
Such restrictions on land use are generally only needed when there is no land market to impose an opportunity cost on idle or underutilized land. A land sales market is unlikely to invoke this opportunity cost due to concerns about distressed sales and loss of land for future inheritance and livelihood. However, strengthening the assurance of land rental contracts would help provide land abundant households suffering from HIV/AIDs with a higher income stream, while providing the landless or labor abundant households with a productive asset that would help improve livelihoods and food security.
5. Land Markets
Land markets play an important role in facilitating intergenerational transfers of wealth, enabling access to housing and livelihoods (farming or small-scale enterprise), providing a source of income or share of output for the sick or elderly, and in certain cases the means to securing long-term debt. However, unfettered land markets in cases of gender discrimination and market power often lead to land concentration or land grabbing, while the poor lacking income opportunities or a social safety net may resort to distress sales. Land sales and rentals may not always be easily discerned from other forms of land allocation – gifts, borrowings, and inheritances, of short- and long-term duration. For many social and even technical scientists at this conference, the use of land “allocations” is preferred because it better captures the social institutions and relational attributes that underlie African customary land tenure systems. But as implied by several speakers, land allocations too often tend to be the big “square peg” that is forced into the “round hole” of land markets by the “market” ethos that has come to dominate global land policy.
Land markets in southern Africa, according to Frank Place, are relatively insignificant compared with both west and east Africa. Land sales appear to be rare. Land rentals are also low, although greater in significance than land sales. Unlike west Africa where tenancies are allowed to evolve into permanent transfers, land transfers in Eastern and Southern Africa are strictly temporary (possibly to keep tenants from establishing long-term rights in the land). Women normally hold inferior rights in land. But in some areas of Malawi, Zambia and Mozambique, matrilineal and even matrilocal systems are still practiced where land is passed through female blood lines or directly to females as in Malawi.
What then explains the lack of land sales in Southern Africa. For much of Zambia, and parts of northern Malawi and Zimbabwe, land is still relatively abundant resulting in greater prevalency of other forms of land allocation. However, in more land scarce situations, other causes are lively to prevail – weak market demand due to gender discrimination, limited purchasing power, dual land tenure systems, and land market controls imposed by the state or traditional authorities. It is understandable that land sales might be discouraged by communities or traditional authorities to protect against land speculation or distressed sales. But these do not adequately explain the low incidence of land rentals and sharecropping. One might surmise from discussions above that tenure insecurity is an important causal factor, but state prohibitions against land rentals are also a cause.
6. Land Conflict
John Okidi in his opening remarks noted how parcels with land conflict exhibit lower land productivity. Yet, surprisingly few land policy frameworks in southern Africa adequately mention, let alone diagnose, how land conflicts are created and sustained. Departure from adequate land access, secure tenure and fair land distribution often create tensions, according to Daudelin, but how these tensions manifest depend on the intervening role of gender, class, and ethnicity. Unmet demands for land rarely result in violence, but when violence does arise it is usually the peasantry who is victimized and rendered powerless in the face of entrenched elites or the powerful new elites created by policy interventions. Conflict however needn’t be open. As argued by Ruth Hall, much of the conflict in South Africa is based on covert resistance, “…not challenging the…status quo, but garnering micro victories for the poor and landless.” How? Through encroachment and the creeping invasion of individual farms, people overtaking legal processes by occupying the land they claim under restitution, peri-urban squatting, and through theft from the white farm community. Whether conflict is violent or covert, it is nonetheless debilitating for the human spirit, and undermines the trust upon which all institutions are founded.
The state might address this conflict for example by speeding up land restitution and land redistribution. Or, it might penalize the offenders. But in addition, the state has contributed to conflict in South Africa by raising expectations for land reform that are not met, by failing to intervene adequately in situations of insecure tenure (allowing conflicts to simmer), and by privileging certain rights claims over another (e.g. when sorting out overlapping claims) (Hall). The state may also play more active roles in shaping or generating conflict – e.g. The Communal Land Rights Bill (2001) which proposes to transfer rights to traditional authorities at the expense of rural dwellers, or PROAGRI policies in Mozambique that encourage private investors and elites acquiring concessions and leases at the expense of the poor.1314
7. Land Redistribution
Land redistribution lies at the heart of land policy frameworks in the “settled” states of southern Africa. The redistributive land reforms implemented in Central America and Asia in the 1950s through the 1970s included strong measures to help “force” land redistribution from elites to beneficiaries. Instruments varied from country to country but included inter alia expropriations, land taxation, and limits on number and size of land holdings by vested elites. The 1980s witnessed a shift in energies away from land reform efforts on a global scale and the beginning of the shift away from redistributive land reform to market-assisted land reform (1990s) and currently to community-assisted land reform. The reasons for this policy shift are multiple and complex but at least three factors played a role: 1) the after effects of the Arab Oil embargo in the late 1970s and a shift in policy focus to structural adjustment programs to curb macroeconomic imbalances, 2) sagging support for land nationalizations in donor countries; and 3) according to Rogier van den Brink, redistributive reforms proved too bureaucratic, cumbersome, slow, and costly.
The 1990s have reinvigorated the land reform debate, in part driven by land reforms in South Africa after apartheid, in Zimbabwe after the 1998 joint Government-Donors Land Reform Conference, and more recently Namibia. The jury is still out on whether the transactions costs of market-assisted or community assisted land reform in southern Africa is any more cost-effective or speedier than redistributive land reform.15 What can be said is that land reforms in Namibia and South Africa have been very slow in implementation, due to a number of structural and policy problems – land market constraints that prohibit the sub-division of large-scale farms into smaller units, weak capacity or reluctance of people to navigate the administrative and political machinery of market transactions, market power of landed elites, cash flow problems associated with loan finance, expensive surveying and demarcation, inadequate funds for land acquisition and resettlement, and high land prices for good quality land.16 Unlike Brazil and Columbia, which achieved independence at the turn of the century, southern African governments reached their independence in the latter part of the 20th century, and until independence most blacks were forbidden from participating in land markets. Market assisted approaches are to some degree shackled as a result.
What then is the policy direction? However, egregious fast track resettlement in Zimbabwe has been in terms of human rights violations, and scale of state-supported violence, the action of the state to curb the market power of large scale land holders is not inconsistent with similar policy thrusts observed in the 1960s and 1970s in Latin America and Asia. On several occasions key policy makers at this conference from Namibia, South Africa and Zimbabwe proclaimed “…willing seller – willing buyer approaches may be obsolete for the needs of rapid land redistribution and poverty alleviation.” Governments are already pursuing a variety of mechanisms to increase the ability of the state to redistribute land from large-scale sectors to the poor (see Table 1A and 1B).17 Both the World Bank and donors in addition need to seriously reconsider their policies against paying for land purchase and increase funds for resettlement costs.18 Whether future land policy emphasizes redistributive land reform or community-assisted land reform, the facilitation costs to recreate capacity in local communities and empower them to govern and assume control over their livelihoods will be gigantic. Yet, set against the political instability and future violence of slow-paced land reform, it is in the interest of all parties to work on ways to reduce land inequality.
Beyond land acquisition, in both communal and resettled areas, hefty costs will be incurred for demarcation of towns and villages and land use planning to improve access to electricity, schools, roads, water, sewage, and communications in ways that improve health, livelihoods, and social development. There will be yet higher costs for improvements in land delivery services to the poor by decentralizing the system of land administration that was created to serve minority interests. And further costs will be required to help communal and resettlement dwellers engage in markets and wise land use practices through skills development and empowerment of rights and local governance.
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Footnotes:
- The juridical component of land administration seeks to ensure that property rights created under a tenure regime are clearly defined and boundaries are maintained. The regulatory component refers to the authority to design, prescribe, enforce and guarantee the integrity of performance standards in land resource management (e.g. zoning, land quality assurance, land market controls). The fiscal dimension refers to land valuation, taxation and the assessment of land resources for fiscal development and revenue collection. The cadastral element refers to the ability to retrieve information on who owns what interest in land, identification of parcels on maps, and monitoring of land use changes. The conflict resolution component is complex and is derived from informal mediation fora, traditional courts, administrative tribunals, land boards and civil courts (Okoth-Ogendo).
- Botswana has recognized customary occupancy for some time. Customary occupancy of land in Mozambique and South Africa have in recent years gained the full equivalency of private rights in state law as registrable entitlements, and are expected to do so in Malawi and less certainly in Lesotho, Swaziland and Zimbabwe (Alden Wily). However, Clarissa Fourie (personal communications) disagrees with Wily’s assessment of South Africa now registering customary rights. According to Fourie, customary rights cannot be registered – something that the Communal Land Rights Bill is seeking to redress.
- For example, creating certain records for group rights where the group is not cohesive, being able to register a large variety of tenures covering all social tenure types, creating a de jure land registration system that matches the de facto social land tenure system, creating a coherent land information system for both surveyed parcels and sketch plans where both registered freehold and rights of occupancy must reside on the same system, and community based approaches that are difficult to scale up to a national level.
- Draft national policies of Swaziland, Lesotho and Zimbabwe made similar arrangements, but have been suspended for various reasons. This is also the fate of the Land Rights Bill in South Africa which is being opposed by chiefs and traditional authorities (Alden-Wily).
- A similar shift in sharecropping arrangements was observed in KwaZulu Natal, but the weak position of HIV/AIDS households lessens their bargaining power when negotiating sharecropping terms.
- Selling land to pay for basic needs or HIV/AIDS related expenses is usually the act of the desperate with few other options; while ensuring survival in the short-run, the affected lose their most important economic asset for sustaining livelihood in the future (Walker).
- Drimie reports that while women are protected under Lesotho’s law, they were not always protected in reality.
- Drimie notes in Lesotho that some chiefs have ignored Lesotho’s legislation on land lying fallow in order to help protect HIV/AIDS households.
- Jose Negrao and Chris Tanner explain how donor support for PROAGRI and DINAGECA in Mozambique is benefiting large commercial and agribusiness interests at the expense of the poor through various land mechanisms including titling. Ben Cousins makes reference to the “fat-cat” land reforms that benefit the well-to-do at the expense of the poor. Kisamba Mugerwa noted how processes for resolving conflicts are very burdensome, Africa wide.
- Clarissa Fourie explains that up to a few years ago investors were often allocated rural land that was already occupied because the land titling system allowed it to happen, and because there was not information/evidence about the rights of these occupants. Mozambique subsequently had to change its regulatory framework to curb this practice and to develop a land titling approach for investors that simultaneously protected the poor.
- Lumumba argues that redistributive land reform is inevitable to redress historical wrongs, reduce poverty and spur economic growth. But, one way around the controversy of redistributive land reform is agreeing that the policy framework should define a menu of options to be pursued. Rather than debating the pros and cons, and creating hard ideological stances, focus might instead be placed on creating a conducive atmosphere of experimentation where the performance of different approaches can be tested and compared in terms of cost/beneficiary, speed of transfer, impact on poverty reduction, and so forth. (See also Van den Brink).
- Cousins, in addition, raises problems of long delays in processing applications, small grant sizes to enable land acquisitions, a mismatch between the needs of beneficiaries and size of landholdings available, and difficulties in integrating land delivery projects (based on uncoordinated and unpredictable negotiations) with rural development processes (agricultural extension, water, schools and clinics to resettled communities).
- Namibia for example is consider closing “legal loopholes” that encourage large-scale farms to transfer assets into closed corporations that circumvent the land reform act. It is also considering various measures, for example the land tax, to help move underutilized land onto the market (Katali).
- This already is underway. According to Rogier Van den Brink (personal communications), the World Bank has recently changed its policy and is now able to finance land purchases. The US government also made provision for financing land purchases under the 2000 Zimbabwe Democracy Act. The UK has financed land purchases in Zimbabwe since the 1980s.
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