Land Reform and Land Administration in Sub-Saharan Africa

Notes for a talk to ICEA, 10/01/06, by Martin Adams

Land Reform and Land Administration in Sub-Saharan Africa

Martin Adams 10 Janary 2006

ICEA Discussion Meeting: Notes

Introductory comments

Over the last decade or more I have been involved almost continuously with land reform policy development in SSA – principally with South Africa, Botswana, Namibia, Lesotho, Uganda and Kenya. I had previously worked on land tenure issues in the Middle East, Southeast Asia, and on islands in the Caribbean and the Pacific, more at the agricultural project level. However, this paper carries a health warning. Despite the statement on the package, I am not an ‘authority’ on the subject. Nor am I an economist, a lawyer or a ‘land professional’ (e.g. a registered land surveyor or property valuer). I hold all these professions in awe.

I am an amateur, a mere ‘human geographer’. I have long been interested in the study of land tenure–“the relationship, whether legally or customarily defined, between people, as individuals or groups, with respect to land”.[1]

When invited to speak to the ICEA, I said that I would talk about land reform and land administration. Land reform I know about.[2] But land administration is a broad and complex subject and a topic with which I hope to get to grips - particularly, the change management aspects and out- sourcing aspects.

After such a long time helping to develop land policies that remain to be implemented, I am increasingly aware that, without a greatly improved and reinvigorated land administration, none of these policy initiatives will ever see the light of day. You might say that there is nothing remarkable about this realisation. How could we implement education policies without teachers, or curative health policies without medical staff and hospital administrators?

Land administration presents a special challenge. It has been described by Professor Okoth-Ogendo as ‘the forgotten factor in land reform in Africa’.[3] Perhaps it has not been forgotten. Maybe we have simply failed to confront the reasons why a country’s land administration is so difficult to transform, particularly in SSA, simply because it is not in the interests of office holders.

On the face of it, there is nothing complicated about land administration per se. Okoth-Ogendo identifies five elements of land administration:

-The juridical component of the land administration function is to ensure that the land rights, or ‘incidents’, attached to a particular tenure category (e.g. freehold, state lease, customary grant) are clearly defined in law and in practice. Resources are thus made available for land rights allocation, adjudication of rights, demarcation, registration and record keeping – all essential to assure the tenure security of the holder.

-The regulatory component of land administration is to enforce and maintain standards. This involves, for example, oversight of the registration of land professionals (e.g. conveyancers, valuers, land surveyors, estate agents, physical planners), necessary for safeguarding the value of property and ensuring that the wider interests of citizens (not just the owner) are safeguarded - by, for example, the application of land use zoning and subdivision regulations. The land administration function provides a medium through which land management and sustainable development is ensured and maintained.

-The fiscal element of land administration recognizes the financial value of property, both to the owner and to the state as a source of revenue in the form of land taxes, property rates, transfer duties, etc. The revenue generated by land administration can pay a significant proportion of government expenditure in the sector.

-Closely linked to the fiscal element is the cadastral component of land administration. Simply stated, it would be difficult to implement a land policy if it is not clear who owns or controls land, where it is located and what it is used for, and what it is worth. For people to have access to land, to have security of tenure and to be able to raise capital from their property, they need some form of evidence of their occupation and rights. It is also important for government to identify the boundaries of public land.

-In SSA, the sixth component of the land administration function, conflict resolution is, according to Okoth-Ogendo, ‘a complex terrain’. Mechanisms for this purpose range from informal mediation (A D R), traditional courts, administrative tribunals, land boards and ordinary civil courts. The objective is the preservation of the integrity of individual and community land rights and their peaceful enjoyment.

These functions and objectives are exceptional and can be recognised in mission statements on web sites and posted up in land administration agencies throughout Anglophone and Francophone Africa. But the reality is very different. Land departments are notoriously inefficient and corrupt. Complaints against officials of land ministries are second only to those against the police.

In many SSA countries, not all[4], every component of the land administration has been compromised by corruption and maladministration. Much of the problem goes back to the period when the colonial powers main tight control over land allocation – the right to us and occupy. Colonial regimes instituted legal and tenure dualism as they reinforced settler interests and adopted minimalist approaches to land tenure and management by indigenous people. There was one set of rights for the colonisers and their supporters (in terms of imported laws and another for the local people under their ‘customary’ laws. The British, for example, opportunistically concluded that because the community rights of Africans transcended those of individuals and their immediate relatives, customary tenure admitted no individual ownership. This became a convenient tool of the colonial administration, which held African land ‘in trust’ and designated it ‘Trust Land’, ‘Crown Land’, ‘Native Land’ or ‘Native Reserve’, which could be acquired by the state upon payment of compensation extending only to unextinguished improvements. Compensation was thus limited to crops and structures erected on the land, without regard to the potential value of the land to the individual, the family and future generations. On attaining independence African governments have found it convenient to hold on to this legacy and have retained control over land allocation and use. Thus the juridical function has continued to serve the interests of the political elite. Those in a position of power inevitably use their powers over land allocation in their own political and personal interests.

The regulatory function tends to be weakly applied. Small cliques of private land professionals, many of them retired officials close to the governing elite often corner the market for land survey, valuation and conveyancing. Where they exist, physical planning laws, development control and building regulations are ignored or widely abused. Government or state land, which has been set aside for amenity or environmental protection purposes (forests and land set aside for water catchment), has commonly been grabbed by private developers or allocated by politicians to constituents to mobilise support at election time.

On the fiscal side, valuation rolls usually cover only 20% - 30% of potential rateable property. The levying and collection of rates often pose a problem because of out-of-date addresses and payee details. Assessments are often based on inadequate and unsuitable data which are greatly impaired by the lack of accurate information about the ownership, location and status of real estate. An effective land information system based on up-to-date cadastral information could greatly help, but land information is only one element of the problem. Public relations aspects need much more attention (e.g. billing, handling of exemptions and appeals, collection and enforcement). Predictably dispute resolution is in disarray. Mountains of appeals to the minister pile up in the ante rooms.

What is to be done?

In many countries there is a reasonably clear understanding of the nature and cause of ‘the land problem’. In the late 20th century, most countries in eastern and southern Africa experienced rapid population growth, slow economic development and accelerating environmental degradation. In the process, Africa changed from a continent of land abundance to one of land scarcity. Unresolved conflicts over land and other natural resources increasingly undermined the capacity of poor people to produce food.

The poor and vulnerable are rarely able to defend themselves against the strong-arm tactics of powerful land grabbers. In many cases, customary land administration arrangements have fallen away but have not been replaced by satisfactory statutory arrangements. Rapidly growing urban populations are particularly vulnerable to the inadequacies of land administration agencies.

In Kenya, for example, following the election of a new government in 2003, the reports of two highly critical presidential commissions of enquiry into the land situation were published.

These reports and the public consultations on which they were based fed into the drafting of the proposed new constitution which provides for the transfer of responsibility for land administration to a national land authority and removes the current concentration of power over the disposal of land in the hands of the President and the Commissioner of Lands, a hangover from the colonial period when land was dished out by the Crown.

It is hoped that the new dispensation will replace decades of ineffective, fragmented and ad hoc interventions in the land sector with a comprehensive and unified land policy. It aims to remove legal and administrative bottlenecks that have resulted in high transaction costs and long drawn out processes and overcome the deeply rooted corrupt, unlawful and irregular procedures of the Ministry of Lands.

Following an inclusive and transparent consultative process, involving land professionals from the public and private sector, academics and members of civil society, a National Land Policy will be presented to Parliament. So far so good, but what chance is there that the necessary institutional reforms will be implemented?

During the past decade many countries, particularly those in sub-Saharan Africa, have engaged in structured land policy and legal reform processes. In all cases, the process has taken longer to bear fruit than had been anticipated, because of the failure to appreciate at the outset the complex and highly contested nature of reforming land administration and management. Such exercises generate a host of problems and challenges and strong opposition from the bureaucracy and the landed elite, which will need to be addressed in Kenya if reform is to have any chance of success.

One of the most fundamental problems will be opposition to change from within the Ministry. For example, the slow progress of the DFID-funded project to support the implementation of land reform in Uganda was the result of too little attention being paid to the Land Act of 1998 as a major exercise in change management and institutional reform.

Bureaucracies react against change for a variety of reasons, including fear of the unknown, lack of information, threat to status, loss of opportunities to earn kick backs, etc. These are stock in trade challenges for change management the world over, but in Africa they tend to stop the process in its tracks simply because there are just too many vested interests involved. African politicians find it so difficult to get the necessary political backing to tackle these problems, even when they want to. Would a Minister of Lands survive the challenge?

There is a worry that the Government may continue with the ‘panel beating’ approach to land policy of previous governments, that it will rely exclusively on ‘quick-fix’ measures and not seize the opportunity offered. There is good cause for concern, not only in Kenya. In many African countries land policymaking is seen as a Cabinet task. Even then, the consistency associated with collective decision-making is absent, perhaps because policy is the prerogative of the President and/ or the Prime Minister and reflects political short-term expediency.

Appendix of some definitions and concepts pertaining to land reform

Land reform is generally accepted to mean the redistribution of land (or the confirmation of rights in land) for the benefit of the landless. These may be tenants, farm workers and others whose tenure is legally insecure because they use and occupy land belonging to other persons, including land registered in the name of the state.[5]

The potential scope of land reform is very wide, depending on the degree of intervention by the state in the operation of the land market. Three levels are distinguished starting with the most drastic:

Legally imposed controls and prohibitions:These constitute direct intervention by the state in the land market;

-restitution and redistribution policies as an antidote to nationalisation and collectivisation,

-expropriation of portions of holdings which are above a certain size,

-expropriation of land parcels which are under-utilized or owned by absentee landlords and/or foreigners,

-and slow or sporadic redistribution policies which operate through estate duty laws (‘death’ duties) and land taxes.

So-called 'market-assisted’ reforms offered by the state for social and economic reasons, leading to the creation of new property rights or the restructuring of existing proprietary structures;

-the privatisation of state farms and collectives;

-the redistribution of state-owned lands;

-state expenditure on land reclamation and land development and subsequent redistribution as private property;

-direct state grants or tax concessions to purchase and/or improve private property;

-state sponsored credits channelled through a land bank to individuals or through farmers’ co-operatives for land-reform farmers.

Land tenure reforms: refers to a planned change in the terms and conditions on which land is held, used and transacted;

-the adjustment of the terms of contracts between land owners and farm worker tenants;

-the conversion of more informal tenancy into formal property rights; the establishment of land boards or committees to organise and supervise the use of common rights and other interests.

A fundamental goal of tenure reform is to enhance people’s land rights (see text box below) and thus provide tenure security. This may be necessary in order to avoid the suffering and social instability caused by arbitrary or unfair evictions, landlessness and the breakdown of local arrangements for managing common property resources.

Tenure reform can include confirmation of rights in order to verify and secure sound land titles for those who have already a demonstrable claim to the land. The purpose is to replace doubt and contention with positiveness and certainty and so inspire confidence and encourage investment and development.

Land administration: refers to the process of determining, recording and disseminating information about the tenure, value and use of land, usually by a public agency. Land management is concerned with the management of land as a resource from an environmental and an economic perspective.

1

[1] Food and Agriculture Organization of the United Nations, Land tenure and rural developmentFAO Land Tenure Studies No. 3 (2002) FAO Rome at page 7.

[2] In the appendix to the notes for this talk, I have included a few definitions of some of the terms that I shall be using in the context of land reform, which may be unfamiliar to some of you.

[3] Professor H. W. Okoth Ogendo, (2002) The Legal Basis for Land Administration in an African Context; Land Administration, the forgotten Factor in Land Reform, World Bank Regional Workshop on Land Issues in Africa and the Middle East, Kampala, 2002

[4] Botswana is a notable exception. See Martin Adams, Faustin Kalabamu, Richard White, 2003. Land Tenure Policy and Practice in Botswana: Governance Lessons for Africa. Austrian Journal of Development Studies. XIX, 1, pp. 55-74.

[5] These definitions are taken from Martin Adams Breaking Ground: Development Aid for Land Reform (2000) ODI, London