IMPLEMENTING THE 1997 LAND LAW OF MOZAMBIQUE: PROGRESS ON SOME FRONTS

1. IMPLEMENTING THE 1997 LAND LAW OF MOZAMBIQUE: PROGRESS ON SOME FRONTS Christopher Tanner PhD FAO Senior Tehnical Advisor Centre for Juridical and Judicial Training (CFJJ) Ministry of Justice, Maputo

2. OUTLINE OF THE PRESENTATION….. • Where things currently stand, and the options facing policy 10 years after the 1997 Land Law was passed • Outline the basics of the current policy and legal framework • Look at some aspects of implementation • Look at some selected cases • Oultine the main positions regarding possible changes

3. BASICS OF THE CURRENT POLICY AND LEGAL FRAMEWORK • NATIONAL LAND POLICY (SEPTEMBER 1995) • “Secure the diverse rights of the Mozambican people over land and other natural resources, as well as promoting new investment and the sustainable and equitable use of these resources.” • Maintain Constitutional principle of land as property of the State • Guarantee access and use of land for the population as well as for investors • Recognise customary rights of access and use, promoting social and economic justice • Guarantee the right of access and use of land for women • Promote national and international private investment without prejudice to the resident population and ensuring benefits for them as well as for the public treasury • Active participation of nationals as partners in private enterprises • Define basic guidelines for transferring rights between citizens or national enterprises • Sustainable use of natural resources, to guarantee quality of life of future generations

4. MAIN FEATURES OF THE 1997 LAND LAW: THE ´DUAT´ • The DUAT - ‘Land Use and Benefit Right’ - is given to nationals and foreigners • A private, exclusive right, not easily revoked (public interest, with ´just compensation´) • Acquired in 3 ways: • occupation by individuals or local communities via customary norms and practices • occupation in ‘good faith’ (unopposed squatting for 10 years) • formal request to State for a new DUAT (only route for foreigners) • The Law ´at a stroke´ formalises all customarily acquired use rights (they are then DUATs) • Essentially a state leasehold: • No time limit if acquired by occupation; 50 years renewable if acquired by request • Inheritable • Transmissable subject to conditions and State (discretionary) controls • DUATs by occupation do not need to be registered or have a title document • Lack of a title document and registration does not prejudice DUATs by occupation

5. COMMUNITY CONSULTATIONS • Have to be carried out when a new DUAT is being requested: • to establish if the land requested is ´free from occupation`(rarely the case) • if occupied, to determine the conditions by which the title holder cedes his or her right to the new applicant • consultation not binding – District Administrator decides and gives opinion • THE RIGHTS OF WOMEN • The Constitution: “Men and women are equal before the law in all areas of political, economic and social life” • Women obtain use rights through men in customary systems, whether patri- or matrilineal • Through Article 12, these rights are legally equivalent to a State DUAT and can be formalised or otherwise defended, especially if other constitutional rights are jeopardised (food security, basic well being, security of their children..) • Women have a full right to participate in the decisions over community assets and resources (as co-titleholders) • All documents must be signed by both men and women of the community in question

6. LAND ADMINISTRATION • PUBLIC LAND ADMINISTRATION (at central, provincial, district level) • Maintains cadastral records and official maps • Issues title and other documents in name of the State • Collects land taxes, and confirms land being used properly • Essentially administrative and supervisory role, but important discretionary powers • THE LOCAL COMMUNITY (incorporates habitation, cultivated and uncultivated land, forests, water sources, cultural sites, ´areas for expansion´) • The Local Community participates in: • land and resource management • conflict resolution • the titling process (allocates its own DUATs, assists with new DUATs) • identifying and defining the limits of the land they occupy • Internally managed by customary norms and practices (subject to the condition that they cannot contradict Constitutional principles) • Also regulated by the principle of co-titulariety (all members, men and women, must participate in decisions over the DUAT);

7. CURRENT CONTEXT • Consolidation of market economy with growth at 8.3 % per year • Relative political stability (4 successful elections since 1992 Peace Agreement) • Rising pressure from investors (national and foreign) for land in all areas • Evidence of land concentration in the best areas (coast, eco-tourism, best soils with water, new roads, markets etc) • Pressures for change (privatisation, a ´DUAT market´) • Lack of access to credit stalling agricultural growth especially • Land rights cannot be used as collateral but they can (and are used as ) proof of having the resources to carry out a project • A ´de facto´ land market using a range of mechanisms to circumvent the law

8. IMPLEMENTATION TO DATE • ´Significant progress has been made´ • local rights at least taken into account (consultations always carried out) • most local people have some awareness of rights (NGO campaigns etc) • brake on local rights being pushed aside in favour of State and private interests • Mozambique has avoided creating a ´landless´ class • no massive rural – urban exodus • relatively low level of serious conflict (compared with neighbouring states) • growing local awareness of need to register local rights • investment in agriculture and other activities is happening • small but growing number of projects using Land Law principles to establish partnership and other agreements with local people Christopher Tanner, FAO Presentation, November 2007

9. IMPLEMENTATION ISSUES • Cadastral services target principally private sector (new) DUATs) , very weak public sector commitment to community aspects of the Land Law • Consultations ineffective for enhancing local livelihoods and economic participation • Too rushed (official objective is to get a community ´no objection´) • Negotiation highly skewed in terms of knowledge, power, resources • Public database seriously flawed: • Most local rights not recorded (most work done by NGOs) • Very few delimitations done to date (300 communities) • Invisibility of local rights leaves them vulnerable to ´capture´ and enclosure • Local people do not know how to exercise their rights (negotiate deals with investors, use their own DUATs better) • The need to free up the transferring of DUATs, removing uncertainty linked to abuse or misapplication of discretionary powers, and to regulate the ´de facto´ land market • Rural women do not know how to defend their rights using non-customary guarantees, and are increasingly at risk of dispossession linked to HIV-AIDS • Senior administrators and leaders do not understand the ´equity enhancing´potential´of the Land Law, while still promoting and securing private investment

10. INSIGHTS FROM SPECIFIC CASES • COVANE COMMUNITY LODGE – GAZA PROVINCE • Community delimited with certificate (USAID, Helvetas, FAO) • Strong NGO support to build community eco-tourism lodge (good early returns, around US$5000 per quarter to community) • Decision to seek investor partner • Active community involvement in tendering and selection process (support from African Safari Lodge programme) • Serious investor interest, complex contract process (rental agreement, share in turnover, employment, etc) • First investor pulled out, community now negotiating with second investor • Impact on local capacity to engage with outside world

11. COUTADA 9 – INVESTOR-COMMUNITY PARTNERSHIP, GAME HUNTING • Operator given concession by Ministry of Tourism (game hunting and conservation) • Community living inside reserve with long historical rights • Operators proposes agreement to share hunting trophy fees in return for cooperation over poaching and no agriculture in conservation area • Successful partnership established, with community receiving US$35,000 in first year of operation • ´De facto´delimtation of communities recognises their rights and brings them into the process as stakeholders as opposed to obstacles • FAO support to build local capacity to manage and use funds • Impact on local capacity to engage with outside world

12. CHIPANJE CHETU – OVER-RIDING THE LAW • Very large area occupied by local communities in far north (Niassa) • IUCN support: area delimited and Certificate issued in name of communities • Hunting operator found, makes agreement with community • Returns to community rise from $5000 to over $30,000 • Benefits also spread to local District government • Provincial government declare area a nature reserve, annul local rights • Agreement with operator ended, in favour of new influential operator • High level government pronouncements re need to respect rights • Conflict continues, community leadership fragmented

13. NIASSA – LARGE SCALE FORESTRY PLANTATION • Very large area (400,000 HA) required by international forestry investors • Investors concerned to work with communities and aware of the Land Law provisions regarding local rights • Investors support full delimitation process to determine where local rights are and which communities to negotiate with • 9 communities identified (one of some 95,000 ha) • Agreement reached over ceding of rights to investor: • investors establish community fund (large initial endowment, regular payments out of plantation in future years) • community – investor committee established • community owned plantation areas also established • large areas agreed to be demarcated for community agricultural use

14. IMPACT OF UNCERTAIN IMPLEMENTATION AND INSECURITY • Communities inside new Limpopo Transfrontier park have to be resettled outside • Resettlement raises many questions, not least being the need to do it, and how to deal with the issue of local rights • Need to find new areas outside park clashes with other local rights • Communities not brought in as stakeholders to participate in initial plans and to benefit in concrete economic terms from new Park • 5 years without real progress: • local people will not invest in anything • climate of uncertainty • no confidence in state structures • local people losing independence and likely to become dependent on low wage income in new large agriculture enterprises (biofuel)

15. RISING DEMAND AND GLOBALISATION • Sustained economic growth creating demand for land and resources • New pressures linked to re-emergence of ´national development´ imperative and putting unused land to work • Biofuel lobby: need for very large areas, over 25 registered firms • Government concerned that most land is legally occupied by local DUATs • ´at least 85 communities with more than 10,000 hectares´ • change to Land Law Regulations imposes administrative control over the way legally acquired rights are recognised and officially recorded • opportunities for community-investor partnership lost (focus instead on jobs created by new enterprises) • apparent weak understanding of how the Land Law can be used to secure land for investment while respecting local rights

16. TO CHANGE OR NOT TO CHANGE? • FIVE DISTINCT POSITIONS IDENTIFIED IN RECENT ASSESSMENT: • Within existing framework, improve implementation and complete and refine the legislation • Land policy and legislation is marginal: Mozambique needs an integrated strategy for rural development • Promote the flexible transfer of DUATs within the existing legal framework • Move toward a more open structure allowing free transfer of DUATs acquired from the State • Privatise land

17. WHICHEVER PATH IS CHOSEN, CERTAIN POINTS STAND OUT: • the legitimacy of the 1997 law is unquestioned, due to the participatory and democratic process of the mid 1990s Land Commission • institutional reform quickly falls behind the legal and policy reform, but entrenched administrative structures and practices then facilitate a de facto blocking of implementation by certain interests • the need for an independent judiciary to uphold the rule of law • the need to base the law and any changes, on what real people do, what their real needs are, with stakeholder involvement in the discussions from the outset • the need to develop some kind of consensus of a ´land vision´ before proceeding to major changes that affect fundamental rights (the recent change to the Regulations is a case in point) • Get the policy change right first, and then change the law

18. THANK YOU