Formalisation Of Land Rights Research Articles

When ‘best practice’ means formalising: foreign large-scale land investments on customary tenure in Uganda and Sierra Leone

Against the background of the global ‘land rush’ debate, the international community has promoted a plethora of global governance norms for more responsible land investments. A growing emphasis has been set on the formalisation of land rights to protect local communities from dispossession. By now, there is an expectation on companies to identify and protect legitimate land rights and practice principles such as Free Prior Informed Consent. However, how companies do this is under-researched and varies widely. More importantly, whether the recognition and documentation of local land rights in the context of large-scale investments leads to the protection of these rights remains unclear. This paper analyses cases of land investments on customary land in northern Uganda and Sierra Leone, in which investors have facilitated processes of land formalisation. Based on 13 months of fieldwork, this paper argues that the extent to which global norms become effective in these cases is conditioned by the domestic context of land politics, the degree of recognition of customary tenure in practice, as well as the different approaches of investors in interpreting the land tenure security norm.

Legalizing illegalities? Land titling and land tenure security in informal settlements

This study investigated how land rights formalization had affected land tenure security among landowners in two informal settlements of Lusaka and Chongwe districts, Zambia. It explored how social norms on land inheritance, decision making over land, marital trust and land related conflicts had been affected by the changed nature of land rights. Data was collected through a questionnaire survey of all the 302 households that had obtained title deeds at the time of the survey, two 3-in-1 focus group discussions and four key informant interviews. Results suggest that land tenure security is now a reality for residents that hitherto lived under constant threat of eviction. Landowners have benefitted from the formalization initiative through land laws and local norms that allow equitable access to land. Land rights formalization has curtailed land rights for secondary claimants such as extended family members, in preference for man, spouse and biological children. A sense of ownership undisputedly increased for men and women in the two study sites. About 50% of the respondents in both study sites indicated that formalization of land rights had not resulted in family conflicts. At least one-third from both sites reported an increase in love and trust between spouses after land rights formalization. About half of the respondents reported that no change in decision-making authority had occurred for men while 42% reported an increase. Formalizing land rights in informal settlements has entailed legalizing illegalities as regulations on plot boundaries are set aside by the state to achieve its aspirations of providing land tenure security to poor urbanites who would not otherwise have recourse to legal or regularized land. We recommend that caution be taken in promoting what is unarguably a pro-poor initiative to ensure that such initiatives should not incentivize future land encroachments.

Peasants and formalization of land rights. Cachapoal River Valley, Chile, 1820-1860

Peasants and formalization of land rights. Cachapoal River Valley, Chile, 1820-1860

Land Administration Reforms: Institutional Design for Land Registration System in Ghana

Securing land rights and the rationalisation of the debate on formalisation of land rights through titling have been the focus of many scholars for some time now. At least, there is consensus among most scholars that land registration is one of the ways of addressing these issues and that current land registration system in most developing countries needs reforms. This paper examines the design and implementation processes of land registration reforms in Ghana. Using the Greater Accra Regional Lands Commission as a case study and institutional design theories, the article analysed how land registration reforms were design and implemented. The paper shows that the design strategies for the reforms were harmonisation of policies and laws and organisation restructuring at the organisational and process levels, but staff resistance to change led to implementation flaws. The paper recommends that institution design of land registration reforms must be combined with the theory of change where all staff are taken through the new organisation’s work ethics and attitudinal change processes adequately.

The Role of Blockchain in Documenting Land Users' Rights: The Canonical Case of Farmers in the Vernacular Land Market

In this article, we discuss the potential of blockchain technology in addressing the documentation of users’ land rights in the informal land rental market. Blockchain technology is a peer-to-peer protocol that can be leveraged to keep track of transactions over the internet. Publicised for its use in the bitcoin revolution, the technology provides transparency and traceability that can be used in the management of land rights. When it comes to the formalisation of land rights, blockchain technology promises to authenticate owners and other users of land, and provides a fixed ledger of land use rights transactions. At present, blockchain technology is being explored as a proof of concept in several countries to track land titles (state to individual). We extend the idea to capture the granting of land use rights (individual to individual) making use of the decentralisation, peer-to-peer nature of blockchain technology. While the technology is not a panacea to all land administration challenges, it can offer an effective means to manage land transactions, provide digital documentation to actors in the informal land rental market and reduce inefficiency in land systems. However, the uptake of the technology in land administration is limited by human related factors. These limitations include, but are not limited to, the accuracy of data being entered into the system, the ability of the system to facilitate data preservation, pre-existing institutional and legal pillars, and the digital divide across communities. Part of overcoming these barriers requires the political will of governments to invest in digital technologies and develop institutional capacities to overcome current limitations to bring land management into the industry 4.0 era.

Land tenure as a cause of tensions and driver of conflict among mining communities in Karamoja, Uganda: Is secure property rights a solution?

This paper offers insight on the missed narrative of land and resource conflict beneath the reality of gemstones and ores in the inchoate industry of limestone, marble and gold mining by communities in Karamoja – Uganda. Land tenure is often overlooked as a cause of tension or driver of conflicts especially in the design of responses to conflict situations in mining areas. Land tenure is considered to be an intricate, historical and perplexing factor in conflict, and the response to its manifestation is often limited to the formalization of land rights. This paper describes the forms of land tenure induced conflicts in mining communities. It articulates the need to address such land-resource conflicts by applying responses based on property rights recognition to that capture the full bundle of rights especially on customary land and improve the leverage of communities in claiming benefits from mining actions.The paper is arranged in six sections; a short introduction, background, and methods, women in mining, description of conflicts due to land-resource tenure and property rights recognition as a response to conflict. It concludes that property rights are essential in supporting claims to entitlement and benefits for communities, as they improve the bargaining power of communities while avoiding the coalescing ability of land grievances in driving mining communities into conflict. Under customary-communal tenure, surface rights are well defined but rarely are sub-surface rights. Legal and formal instruments to guarantee economic value and costs, transmitted in compensation payments, royalty fees and in benefits to communities are necessary to lessen the frictions about quantifications and measures.

Territorialities, spatial inequalities and the formalization of land rights in Central Benin

AbstractThe formalization of ‘informal’ customary land rights is at the core of current rural land policies in Africa. The dubious impacts of such policies on agricultural production, and the recomposition of land rights and governance they cause, have been studied widely. But their territorial dimensions are hardly acknowledged. Studying the implementation of a rural land rights formalization project in central Benin, this article highlights the links between territorialization and plot-level land rights formalization. It first unpacks the notion of the village and presents a conceptual framework for analysing the superimposition of and contradiction between customary and administrative territories. Using two case studies, it then examines the conflicts that arise during formalization operations and their outcomes in terms of the mapping of land rights and political and administrative change. This article shows how the political organization of the territory and the socio-spatial inequalities resulting from the history of settlement shape the results of plot-level land rights registration (which explains why large parts of village territories have not been registered), and, in turn, how these registration operations lead to new territorialization processes and increase the heterogeneity of land tenure rights within the territory.

Land certification as a substitute or complement to local procedures? Securing rural land transactions in the Malagasy highlands

This text deals with the relationships between land transactions and the formalization of land rights in a Malagasy context, exploring the local procedures aiming at securing land transactions, while putting them in perspective with the legal formalization of land rights through land certification. Our research shows that (i) transactions are far from being limited to legally recorded plots of land, (ii) the local extra-legal procedures for formalizing transactions are highly standardized, (iii) the buyer’s choice regarding the way to secure the transaction varies according to his relation with the seller and to the type of document that previously secured the seller’s property rights on the plot, and (iv) rather than a substitute, the plot certificate comes as a complement, an ‘additional layer’, to local sales contracts formalization.

How Institutions Shape Preferences: Experimental Evidence from a Large-Scale Property Rights Reform Implemented as Randomized Control-Trial

textabstractI investigate how a major institutional reform of property rights over land affects cooperation and trust preferences in a society where agricultural land is the main households' asset. The reform took place in hundreds of West African villages in Benin and consists in registering customary tenure rights over agricultural land that are traditionally characterized by collective property and informal possession. With the reform, registered plots acquire a new legal status akin to private ownership, making it possible to claim property in court and sell or use them as collateral. Identification capitalizes on the randomized control-trial implementation of the reform that used a public lottery to select villages who had the reform implemented. Those villages not selected as of today maintain the customary land tenure. As of today, this is the only example of large scale land rights reform implemented as a randomized control-trial. Seven years after the reform implementation, I performed two studies conducting lab-in-the-field experiments to collect data on cooperation and trust choices from a total of 546 participants in 32 villages. The results of the first study, conducted in a densely populated province where villagers are richer, more educated and live closer to markets and paved roads compared to other country's rural areas, show that the formalization of land rights significantly increases participants' contribution in a public good game (40%) and trustor's transfer in a trust game (35%). The second study replicates the first one but it is conducted in a different rural area that experienced the same reform and shares the same set of formal institutions as the province in the first study, but that is characterized by markedly different socio-economic characteristics -- the lowest population density, income, education levels and highest distance from paved roads in the country. In contrast with the first study, for participants belonging to the least market integrated and socio-economic developed villages, the reform determines a reduction of cooperation and it has no effects on trust levels.

Réforme foncière et accueil des investisseurs à Madagascar : l’ambivalence de la politique foncière

Depuis 2005, Madagascar est le theâtre d'une vague d'annonces d'investissements agricoles et d'une reforme dans le domaine foncier jugee comme l'une des plus innovantes d'Afrique, basee sur la decentralisation de la gestion fonciere et la reconnaissance legale des droits coutumiers. Sur cette periode de 10 ans, il s'agit de savoir si la reforme fonciere a freine ou facilite les projets d'appropriations foncieres a grande echelle des investisseurs et, en retour, si la presence de ces investisseurs a influe sur la gestion fonciere de l'Etat. L'article demontre que les lois, les institutions et les outils instaures par la reforme n'ont pas eu d'effet notable sur l'acces a la terre des investisseurs du fait d'interventions portant sur des territoires differents et impliquant des reseaux d'acteurs disjoints. Il souligne qu'au contraire, les sollicitations des investisseurs ont incite l'administration fonciere a aller a contre-courant de la reforme en revendiquant les terres comme appartenant a l'Etat et en renforcant la centralisation de leur gestion. Le cas malgache montre ainsi que l'enjeu cle dans la regulation des investissements n'est pas la seule formalisation des droits mais le niveau effectif de decentralisation et d'inclusivite de la gestion fonciere. (Resume d'auteur)

Questioning the “Regulatory Approach” to Large-Scale Agricultural Land Transfers in Ethiopia: A Legal Pluralistic Perspective

AbstractUntil now, most policy recommendations put forward to deal with the possible negative impacts of large-scale land acquisitions are either directed towards the legal recognition and formalization of land rights in order to secure the rights of historical land holders or the design and implementation of “voluntary” guidelines and codes of conduct that promote positive development outcomes of large-scale land investments. This paper argues that these types of recommendations tend to depoliticize the debate around access to land and natural resources, whether at local, national and international levels. This paper looks to bring this political dimension back by proposing an analytical framework in line with the legal pluralist tradition. From a legal pluralistic analysis of the process of land deals in Ethiopia, this paper finds out that socio-cultural identity and power structures, rather than market and regulatory failure alone, play a fundamental role in redirecting negotiations and determining losers and winners from such deals. With the above finding, this paper finally suggests that blueprint international standards or investment regulatory measures cannot be used as a panacea and that solutions need to be more profound than such conventional approach.

Customary and Statutory Perceptions of Tenure Security in South Africa

This paper is about how different perceptions of tenure security in South Africa influence different approaches to governance of land. The governance of communal land tenure arrangements is especially hotly debated. Communal tenure insecurity affects millions of South Africans. The State is constitutionally mandated to effect legislation that will address this situation. The Communal Land Rights Act 11 of 2004 was signed into law to create a land administration system to regulate communal land tenure. The Act aimed to provide security of tenure by providing self-regulation to communities through corporatisation and the formalisation of land rights by means of registration. Community governance structures would also be incorporated in to local government structures. The Act, however, did not provide for adequate consultation measures with communities, current community practises of governance and state support. Governance of land rights imposed by the State clashed with the horizontal governance of communities. Four communities challenged the constitutionality of these measures in the Constitutional Court. They argued that the effects of the legislation would leave them in a worse position than was the case under the repressive apartheid regime. The Court subsequently declared the Act unconstitutional on substantive and procedural grounds. Thus, after a more than a decade of democracy in South Africa almost one third of the population still suffers from legal tenure insecurity without support from the state. State intervention in local land governance structures failed to accommodate local realities on the ground. Instead, communities are calling for alternatives that recognise their own attempts, at grass-roots level, to achieve tenure security. Adequate interaction between the state and private actors in the governance of land tenure is sorely needed. Current attempts to rectify this situation are limited to political promises with no clear policy framework.

Southeast Asia. Powers of exclusion: Land dilemmas in Southeast Asia. By Derek Hall, Philip Hirsch and Tania Murray Li. Singapore: National University of Singapore Press, 2011. Pp. 257. Figures, Maps, Bibliography, Index.

Southeast Asia. Powers of exclusion: Land dilemmas in Southeast Asia. By Derek Hall, Philip Hirsch and Tania Murray Li. Singapore: National University of Singapore Press, 2011. Pp. 257. Figures, Maps, Bibliography, Index. - Volume 43 Issue 3

The experience of Madagascar. Decentralising land management

Version française de l'articleProjects to take control of vast areas of arable land in Southern countries have revived interest in public policies to improve land tenure security. Often based on principles inherited from colonial times and focusing on the issue of land titling by government departments, these policies are now unsuited to the growing social demand for improving land tenure security in Southern countries, especially in sub-Saharan Africa. Indeed, the advance of the market economy, the growth of cities, the decline of customary authorities and forms of regulation and the progressive commodification of land are all at the root of a growing need to secure land rights in writing. This need is all the greater because rural societies are faced with the land acquisition strategies pursued by major economic operators. Between the preservation of long-standing land policy instruments that have shown their limits, and the promotion of community regulations, some Southern land tenure policies are exploring the middle ground combining the recognition of social land management practices and the formalisation of land rights by the public authorities. This is the case in Madagascar, which launched a land policy

Land Registration, Governance, and Development: Evidence and Implications for Policy

The developmental impact of institutions to establish and maintain secure property rights to land has been a subject of much debate. The authors review the literature on the impact of land administration interventions in specific contexts, highlighting the dependence of outcomes on the governance environment, the effectiveness of the state apparatus, and the distribution of socio-economic power. There is evidence, albeit not uniform, of enhancement of tenure security through land registration with benefits manifesting themselves in higher levels of investment and productivity and a reduced need to defend land rights. Land registration has also been shown to increase activity in land rental markets, leading to higher efficiency overall. Evidence of improved access to credit, due to formalization of land rights, is scant. Even in situations where land registration had positive benefits, the literature contains little rigorous analysis of cost-effectiveness and long-term sustainability of impacts. The authors conclude that formalization of land rights should not be viewed as a panacea and that interventions should be decided only after a careful diagnosis of the policy, social, and governance environment. If intervention is justified, the performance of land administration systems needs to be benchmarked in terms of coverage, cost-effectiveness, and quality of service provision.

Formalisation of land rights: Some empirical evidence from Mali, Niger and South Africa

In this paper, we re-interpret three cases of research previously carried out in Mali, Niger and South Africa in light of the recent debate about formalisation of land rights that has emerged since the publication of Hernando de Soto's ‘Mystery of Capital’. The Malian case shows that lack of broad access to formalisation processes in high-pressure areas may play into the hands of those with power, information, and resources. The case also demonstrates that timing of formalisation efforts in urban areas characterised by rapid expansion is crucial in terms of distributive outcomes. The Nigerien case demonstrates how impending formalisation led to a scramble for land and increased conflicts in a context of institutional competition and limited administrative capacity. The South African case shows that the very process of surveying and registering rights may also change the rights themselves. Formalisation procedures may also amplify the tension between individual and communal rights, and boost privatisation.

Formalisation of land rights in the South: An overview

Formalisation of property rights has recently been proposed as a way of reducing poverty. The poor, it is said, do not lack assets, they lack only the formal, protected rights necessary to make these assets engines of entrepreneurship, thriving markets, and information networks. Historical evidence with regard to formalisation programmes is, however, mixed at best, and current universalist proposals contain numerous flaws. A more context-specific and flexible approach is needed, with greater attention to local settings and specific objectives and tools. Property formalisation should not be considered merely a technical tool but must take account of politics and culture.

Women's Land Rights in Tanzania and South Africa: A Human Rights Based Perspective on Formalisation

One of the critical issues in current debates on land policies in Africa is how to balance equity considerations with the quest for potentially more effective and productive uses of land. In this article, we explore the strengths and weaknesses of a human rights based approach (HRBA) to development in securing women's land rights—using Tanzania and South Africa as examples. We analyse the relationship between gender-neutral laws and policies aiming to provide secure tenure through titling and registration and the highly gendered land uses and productive activities on the ground. An overall theme is how women may be effectively protected against the direct and indirect discrimination that is often a consequence of gender-insensitive land laws and policies. We conclude that HBRA offers a critical corrective and counterbalance to the neoliberal approaches that tend to dominate current policy formulation. It applies in contestations over formalisation of land rights. And as a policy tool it offers a set of binding standards that require the taking of measures preventing discrimination in relation to access and control of land and ensuring women's participation in registration processes. The article calls for a closer scrutiny of current fomalisation programmes and initiatives in the light of human rights standards.

Video evidencing and palmtop computer technology to support the formalisation of land rights

Technology can be used to improve the legitimacy, accuracy and currency of land tenure information in urban informal settlements, site-and-service schemes and rural land restitution cases. Video images of landholders providing testimony as to their rights, interests and obligations regarding land, and palmtop computers using icon-based graphic interfaces, are two such technologies. Video imaging has the advantage that respondents can describe unusual situations in the tenure system on camera that might not normally be recorded in a written document, and thus improve the completeness of the record. Palmtop computers that can be used by community members to collect socio-economic data are one of many tools that enable a community to work in partnership with the land administration authorities to improve the quality of land records. This article describes pilot studies of how video images were integrated into a geographic information system with spatially referenced socio-economic data collected with a palmtop computer linked to a hand-held Garmin II Plus receiver. These studies were conducted as a part of a research programme in land tenure and cadastral systems in a rural community and an urban informal settlement.

ADJUDICATION – A WAY OF COPING WITH INCOMPLETE INFORMATION IN DEVELOPING COUNTRIES

Excessive requirements of information contributes to the poor performance of land management in developing countries. Procedures in land planning and registration must be designed to work on incomplete information and at low costs. Such procedures will inevitably be iterative and decentralised.Adjudication is defined as the resolution of a dispute by the application of pre-existing rules. With reference to English and Danish experience it is argued that adjudication by land tribunals could have several functions in the context of government intervention: to allow for iterative and participative planning decisions, to resolve disputes between individuals and the administration, and to make the intervention legally binding.In the pursuance of certainty as to land rights, adjudication, which is a legal process, could complement the land and property identification systems. Two ways of establishing certainty should be considered in conjunction: (1) prevention of unGertainty through reliable information, and (2) removal of uncertainty by legal process.In a sense adjudication makes up for the imperfections of the registration system. Uncertainty will occur but at least there will be predictability because there are pre-existing rules. Two examples are briefly discussed. One is boundary disputes, the other is the issue of liability.Field operations are particularly important in developing countries. It is suggested that the private land surveyor is the obvious actor to assume broad technical and managerial responsibilities concerning land planning, land surveying, community relations, surveying and mapping, and legal issues. However, to qualify for the shouldering of such broad tasks, the private surveyors must develop a broader professional profile.Two crucial issues are deliberately omitted. The first is development of Land Law. Formalisation of land rights requires the formalisation of land law. It is an inherent limitation on land reform in developing countries that land law hardly exists as a specific discipline. The second is the involvement of laypeople. Resource constraints alone dictate that they need to be involved in the decentralised functions of land management. An inevitable issue is the relationship between the official administration and traditional or indigenous structures. At the operation level the involvement of laymen and laywomen raises enormous problems of management, logistics, etc.