Land Reform Monitoring and Evaluation in Mozambique
Christopher Tanner
FAO Senior Technical Advisor,
Land and Resources Legislation and Policy
Centre for Juridical and Judicial Training
Ministry of Justice
Maputo
Introduction
This paper presents some alternative ideas on how to monitor the process of land reform
in Mozambique. While accepting the need to maintain a focus on hard data – number of
households involved, areas covered, number of land certificates issued, etc – the paper
also argues for a process of community based ´participatory monitoring´, whereby local
people who are the intended beneficiaries of the reform can track how things are going
and report back to both official and other (civil society) formal ´monitors´. The paper
begins with some background to the widely and well regarded 1997 Land Law, and
outlines some of current issues surrounding its implementation. It then discusses the
monitoring issue in terms of both more formal processes – indicators used by the Land
Administration and the included in government programme instruments – and the more
informal or local level process that is being proposed here.
Background
The 1997 Land Law of Mozambique was developed after an extensive consultative
process which involved a wide range of stakeholders1. It was preceded by a policy
process which, while not quite so participatory, did take as its point of departure a
thorough analysis of what was actually happening in the Mozambican countryside n the
early post-war period (1992 - 1995). The Land Commission undertaking the policy
review was also expanded to include eight other sectors apart from agriculture, which had
a direct interest or role in land management.
The policy process was driven by government and donor concerns over the rising tide of
land conflicts in the post-Civil War era from 1992 onwards, as investors and others
sought to occupy land that was apparently abandoned or under used. Existing legislation
at the time was founded on the Constitutional principle that radical title in land belongs to
the State, while recognizing the use rights of those who were actually using the land in
some way. This left the majority of local people extremely exposed to land grabbing, as
they were unable to put their land back into production or had not yet returned from exile
or displacement.
1
See Christopher Tanner (2002): Law Making in an African Context: the 1997 Mozambican Land Law.
FAO Legal Papers Online No 26.
The Commission consulted research papers and reports from technical institutes and
ongoing agricultural programmes to produce a policy that responded to the land
management needs of most ordinary Mozambicans. The principle of State ownership of
land remained unchanged in the new 1990 Constitution that ushered in multiparty
democracy and set the stage for a full transition to a market economy2. But the policy –
approved in September 1995 and still in force - included mechanisms for promoting new
investment and the transmission between third parties of the State allocated Land Use and
Benefit Right (or DUAT, to use its Portuguese acronym). The policy also established that
land management had to adhere to principles such as gender equality, equity, and
environmental sustainability.
The 1997 Land Law has achieved varying levels of success in its ten years of existence3.
A Commemorative Conference in October 2007 also reaffirmed the wide popular support
the law still enjoys, and its continuing validity in a country where customary rights may
enjoy full legal protection but are still vulnerable to capture and enclosure. A recent
assessment of the law based on wide ranging interviews with many stakeholders and
interest groups also came to a similar conclusion4, underlines the fact that since it was
approved, the law has held back a massive rural – urban shift, put a brake on land
grabbing, and avoided the emergence of a landless class and serious land-based conflict
in Mozambique.
Other aspects of implementation require serious attention however, and evidently the
country has changed substantially since 1997. There have been many calls over recent
years to bring the law into line with a rapidly growing market economy. In this context
the issue of monitoring the reform process is critical, firstly to ensure that the initial
objectives of the 1995 policy reform are being achieved, and secondly to ensure that any
proposed changes are not simply a response to poor implementation, but reflect the real
needs of all sectors and interest groups.
Land policy and law: objectives and main features
The 1995 policy and the 1997 law have been widely and positively commented on. The
central feature of the new policy and legal framework was the recognition of customary
and unopposed ‘good faith’ occupation as two ways in which a State DUAT could be
acquired (the third, applicable to all investors and foreigners, is a formal request to the
State for a new DUAT) . It is therefore not a distributive land reform, but a tenure reform
that gives due recognition to forms of tenure that otherwise would remain invisible, not
formalized in any way, and insecure.
2
Again reasserted in the new 2004 Constitution, and unlikely to change in the medium term.
See Christopher Tanner 2008 (forthcoming): Land Rights and Enclosures: Implementing the Mozambican
Land Law in Practice in the Changing Politics of Land in Africa: domestic policies, crisis management,
and regional norms. Pretoria, University of Pretoria/Insitut Français dÁfrique du Sud, and the LSE; and
Simon Norfolk and Christopher Tanner (2007), Improving Tenure Security for the Rural Poor:
Mozambique Country Case Study. FAO Legal Empowerment Programme (LEP) Working Paper No 5.
4
André Calengo, Oscar Monteiro and Christopher Tanner (2007): Mozambique Land and Natural
Resources Assessment. A report for the Embassy of the Kingdom of the Netherlands.
3
This important provision ‘at a stroke’ formalized the thousands of customarily acquired
land rights held by the vast majority of the population, and gave them full legal
equivalence to the DUAT.
In a similar vein the law recognized the role of customary systems as the de facto land
management system for most Mozambicans. This gives local land chiefs and customary
structures the right to allocate DUATs within their areas of jurisdiction. Given the
difficulties associated with conventionally surveying and titling the many bundles of
individual and collective local rights, these ´areas of jurisdiction - customary land holding
and management systems - were designated as ‘ local communities’. Each community is
given its own collective DUAT, and the many smaller DUATs within the community are
then left to its own structures to manage.
Local communities were also given a key role in allocating new DUATs to investors.
Through the ‘community consultation’ mechanism, outsiders must consult with
community representatives to check if the land they want is free: if it is occupied – and it
usually is - they then have to negotiate terms through which the community will give up
its DUAT, or otherwise allow the investor access to their land and resources.
For investors and others, the DUAT is legally equivalent to a secure and transferable long
term leasehold (50 years renewable for a further 50 years). Unlike local communities and
their members, who are not legally obliged to register their rights, holders of DUATs
acquired through formal request to the State must register their rights after a rigorous
surveying process which is time consuming and expensive. At this point they are given a
Title document, or Title of DUAT.
The law explicitly states that for those whose rights are acquired by occupation, the
absence of a Title or formal registration does not prejudice their right in any way, and
indeed this existing right prevails over any other claim which is not supported by the
required consultation and community consent.
The Land Law Regulations provide a mechanism that allows local rights to be
collectively identified and grouped within a specific local community. This is called
‘delimitation’, and involves a participatory field methodology in which local
communities in effect define themselves and establish their borders with neighbouring
communities. The resulting map of the community borders is officially recorded and
Certificate of Delimitation issued. This much lower cost approach is practical – it still
leaves the task of local land management to local structures – and provides a quick and
flexible form of cadastral formalization that reinforces the legal protection already
enjoyed by local communities and their members.
The Technical Annex detailing the methodology requires it be done when new projects
and investments are planned, or where there are existing conflicts. Applied correctly, it is
then seen as a pre-emptive or demand driven form of cadastral formalization, in situations
where local rights might be at risk from rising land demand and new investor (and State)
projects.
It follows from all of this that monitoring of the reform process requires several key areas
to be tracked and recorded:
-
the extent to which consultations are carried out and whether or not these are
carried out well and in line with the provisions of the law
the extent to which local rights are respected when new DUATs are allocated
the extent to which local rights are being delimited and recorded, as demand for
land rises and
the extent to which all existing DUATs, however acquired, are taken into account
and, where necessary, recorded in official databases
the effectiveness or otherwise of implementation by the land administration
services and other related sectoral agencies and partners
The Land Law must also be set within the wider framework of other new legislation that
sets other important conditions for the way land and resources are used. Of particular
importance are the Forest and Wildlife Law (1999), the Environmental Law (1997), and
the Tourism Law (which defines ‘tourism areas’ in which rights can be subjected to a
range of planning and development conditions), and the more recent Territorial Planning
Law (2006). In addition there are many regulatory instruments, amongst which is the
innovative provision that requires 20 percent of public revenues from commercial forest
and wildlife exploitation to be allocated to local communities.
Monitoring the land reform should then include measures that track the community
consultation and management role in the forest and wildlife context, the application of
EIA requirements when new DUATs are requested, and the allocation (or not) of the 20
percent of revenues as required by law. Moreoever, if the goal is to assess the reform
process, some measure of impact must also be included.
Land reform: progress to date
The reality is that there have been few systematic efforts over the last ten years to directly
monitor the impact of the land reform. Considering the points raised above, it is possible
however to arrive at some general conclusions based on existing official data and other
sources.
Consultations
It seems clear that practically all new DUAT applications do involve a community
consultation. Indeed the National Directorate for Land and Forests (DNTF) asserts that
this mechanism is both necessary, and sufficient, for protecting local rights in line with
the requirements of the Land Policy. In this sense at least, the Law has achieved the
major objective of enforcing awareness of local rights upon those who would access local
land, and requiring them to take these rights into account when making their plans.
Anecdotal evidence from NGOs and small farmer groups suggest that consultations are
rarely carried out well however, and that communities still end up losing their land for
minimal if any real benefits in return for giving up their DUATs. Research by the Centre
for Juridical and Judicial Training (CFJJ) of the Ministry of Justice in 20055 confirms this
finding, and underlines the fact that consultas are rushed, do not allow for adequate
internal consultation, and are rarely accompanied by detailed agreements that allow for
systematic follow up and monitoring.
Delimitation
As the law does not require rights acquired through occupation to be registered, there is
no pressure on either communities or the State to see that these rights are in fact given
stronger protection over time. This is a growing problem in an economy enjoying growth
of some 9 percent per annum, and in which there is surging investor demand for land and
natural resources.
A report for DfID in 2003 carried out a systematic assessment of delimited DUATs, and
found that at that time, some 180 communities had been delimited6. Of these, only 74 had
achieved full official certification, with the community map recorded in the Cadastral
Atlas. It is not clear how many local communities there are in Mozambique, but the
number is certainly of the order of several thousand. Given that each delimitation will
encompass hundreds or even thousands of individual and household DUATs, the lack of
progress in this area is a matter of concern.
More recent data indicate that the number may have risen to some 300 communities. The
number with full Certificates is likely to be far lower however, as provincial land services
refuse to issue them on the grounds that there are unresolved conflicts in many areas, or
on some other relatively minor technical point.
Implementation
Prevailing opinion is that Land Law implementation has been haphazard and that while
the law has had a positive impact, this impact could have been many times greater had
effective reforms been made to the public land services to enable them to implement the
new law as it should have been implemented. With agriculture receiving less than 4
percent of the public budget, and land getting only a tiny proportion of that, it is clear that
the resources available for effective Land Law implementation are simply not sufficient.
5
Tanner and Baleira (2006): Mozambique´s legal framework for access to natural resources: The impact
of new legal rights and community consultations on local livelihoods. . FAO Livelihoods Support
Programme, Working Paper No 28.
6
CTC (2003): Appraisal for the Potential for a Community Land Registration, Negotiation and Planning
Support Programmein Mozambique. A report for DfID Maputo by CTConsulting, St Ives, UK (eoliveira@dfid.gov.uk)
This conclusion was confirmed by the recent assessment referred to above, and most
public officers will admit to this in private. The public land administration programme is
however doing what it can to decentralize land services down to district level, and carry
out an inventory of current land use and occupation (which does not necessarily equate to
a survey of rights, it should be noted, unless the full definition of occupation as per the
Land Law is used by the surveyors contracted to do this work).
All public pronouncements since the law was approved also show clearly that the official
priority has been fast tracking and facilitating new DUAT requests by private sector
investors (national as well as international). This reflects a perception amongst many
senior politicians and civil servants that investment led job creation is the best way to
reduce rural poverty. Community aspects of the Land Law – which as we have seen in
fact involved the vast majority of land rights – are left to civil society organizations to
deal with. Nearly all delimitation work is carried out by NGOs.
Official Data
The result of this mix legal provisions that do not demand the registration of local rights,
and skewed implementation by public services, is an official database that contain mainly
DUATs allocated through formal request to the State (i.e. investor and private sector
DUATs). Data on these DUATs is relatively well processed and maintained. Yet the vast
majority of local DUATs, and those held collectively by local communities, are not
registered in any way. It is therefore difficult to use public data to accurately assess the
progress of the tenure reform since 1997.
Government has been under considerable pressure from donors to include more and
better indicators in the poverty reduction programme (PARPA 2), instead of the single
indicator used to date which records the number of new DUAT requests processed in less
than 90 days. New indicators have been developed in the last year to record the number
of local communities with a Certificate or equivalent form of documentary proof of their
DUAT, but there is still no reliable official baseline of the number of communities
appearing in official records that meet this requirement.
Other Related Issues
Conflicts and Land Concentration
Research by the CFJJ in 2004 revealed a level of conflict that is not dramatic, but is
nonetheless worrying in its implications for the model of equitable and sustainable
development foreseen by the 1995 Land Policy. A survey of 165 conflicts, 38 of which
were investigated in detail, revealed a systematic picture of local rights being abused,
consultations being poorly carried out, and an inadequate response by public agencies
driven by central government concerns to promote investment by fast tracking new
DUAT applications7.
Local people are vaguely aware of their rights under law, but still have no perception of
how strong these rights are. When confronted by government officers asserting that
because ‘ land belongs to the State’, local rights can in any event be effectively overruled, local people grumble and chronic conflicts result that reflect local dissatisfaction
with the way they are treated. The usual response is to appeal to the district
administration and higher level public officers, who are often part of the problem in the
first place. Use of the courts and other legal measures is almost unheard of.
There is also clear evidence of land concentration and an enclosure process that in fact
uses the consultation mechanism to give a veneer of respectability to the process –
‘enclosures with a human face’ where the fact that a consultation has been carried out is
used by the investor and government agents alike to show that legal requirements have
been complied with and local rights respected8.
Once again the cadastral database is an ineffective instrument, as it is effectively
organized only around new DUATs, which in turn apply to discrete ‘farms’ and
‘properties’. These are not disaggregated by area in a systematic way, so that attempts to
assess concentration using a Gini coefficient or similar techniques are problematic. And
in any case, the vast majority of DUATs are not in the database – those acquired y
customary occupation, which in this context have to be seen in terms of some numerical
assessment of the number of households incorporated within each respective local
community DUAT9.
Natural Resources Access and the 20 Percent Question
Since the late 1990s, the Government has been implementing a community based natural
resource management programme with FAO support. Some 65 projects have been
initiated, with varying levels of success. Many of these began without due concern being
paid to issues of land rights (predating the approval of the 1997 law), but in recent years,
the issue of delimiting local community rights has emerged as an important tool for
determining how benefits from resource use are allocated, and establishing effective
forms of community control that do not favour specific sub-groups within communities10.
Monitoring the tenure reform process necessarily requires some linkages to the wider
issue of resources access and use, and in particular the requirement that investors must
also consult with local communities when they want a concession agreement with the
7
Sergio Baleira and Christopher Tanner (2004): Relatório Final da Pesquisa sobre os Conflitos de Terra,
Ambiente, e Florestas e Fauna Bravia. Maputo, Centro de Formação Jurídica e Judiciaria and FAO, Project
GCP/MOZ/069/NET
8
Tanner (2008), ibid
9
For example, if a local community DUAT extends over 30,000 hectares, and there are some 2000
households within it, then the mean DUAT per household is of the order of 15 hectares. Note that this will
include all land, not just that under cultivation.
10
See for example Coutada 9 and Covane Community Lodge, in Norfolk and Tanner (2007) (ibid).
government to, say, exploit local timber or wildlife. There is apparently no systematic
registration of these agreements however, and in any case many national investors escape
the requirement to consult communities by resorting to the simple license mechanism
allowed by law (even foreigners can do this, by establishing relationships with local
intermediaries who get these licenses and then effectively work for the foreign buyer)11.
The government is however now implementing the 20 percent allocation requirement to
local communities, after many years of uncertainty over how to do this. The key
challenge is to identify ‘the community’ and who represents it, and to then open bank
accounts in its name. The Land Law and the delimitation instrument offer a useful way to
address this issue, but there is no explicit requirement in the new enabling regulations to
carry out delimitations as part of the 20 percent process. Nevertheless, a growing number
of communities are receiving their money, and while the sums involved are small in real
terms, the psychological impact and sense of being formally recognized and integrated
into much larger processes is evident in those communities which have been paid12. In
this area at least DNTF, as the overseeing institution, is maintaining relatively good
records of the numbers of communities that are formally integrated, with bank accounts,
and receiving money.
Poverty Indicators and Assessment
Civil society has developed an effective poverty monitoring mechanism through its
Poverty Observatory. This complements consistent government efforts to assess the
evolution of poverty data, which show that there has been real progress in recent years,
reducing absolute poverty by some 10 percent to its present official level of 57 percent.
These data are questioned by some observers on the grounds that they do not adequately
reflect real distributions of income, and do not reflect the still precarious economic
situation of those who manage to get above the poverty line13. The role of a relatively
independent body such as the Poverty Observatory is then critical, for maintaining a
critical eye on the way in which poverty is monitored.
New approaches to monitoring tenure reform
The discussion above indicates that there has been little effective monitoring of the tenure
reform process in a systematic way. Some idea of how implementation has proceeded can
be gained from specific studies and research exercises, and through anecdotal evidence
from civil society organizations working on the ground.
11
This is a particularly polemical issue at the present time, in the area of illegal logging driven by demand
from Chinese firms working in partnership with local enterprises and even community based interests.
12
These points are made in several papers on the issue. See for example Catarina Chidiamassamba (2006):
Experiência sobre a canalização dos 20% das taxas de exloração de recursos florestais e faunísticos.
Paper presented at a National Directorate of Land and Forests workshop to discuss the 20% issue, Maputo
13-14 December 2006.
13
See the recent debate in the academic press between Joseph Hanlon, a well known commentator on
Mozambique, and Channing Arndt, a senior technical advisor with the Ministry of Finance in Maputo.
Public sector databases are at this point in time, of little use for assessing the real nature
of tenure reform implementation, as they focus principally on an important but
statistically very small number of land users (private sector investors). The vast majority
of rights recognized and protected by law are still not recorded. Records of consultations
are very poor. There is little systematic registration of the agreements that result between
investors and local people, and even less – or no – follow up of how these agreements are
implemented by both sides.
Other activities are being monitored with some degree of rigour however, notably the
implementation of the 20 percent allocation of public revenues. While not directly linked
to the tenure issue, this is an important related aspect of the overall impact of tenure
reform, with its roots in principles of equity and local level consultation and participation.
Official Data Bases
In this context an immediate priority is to improve both the indicators used to evaluate
and monitor tenure reform – or in other words, monitor the effectiveness of Land Law
implementation by the public land administration and its partners (which in this case
includes local community land management structures and NGOs).
Current moves to develop new indicators are encouraging in this respect. These must also
be matched by measures to reform the way in which land data area recorded, and
disaggregated, to facilitate more meaningful analysis of trends and key issues such as the
number of local DUATs recorded, and the question of land concentration.
Linking to other programmes that record data on related aspects of the tenure reform
process – such as the programme to implement the 20 percent tax allocations – is also
another avenue to follow for improving public sector monitoring.
In tandem with these measures, it is necessary to promote a far more analytical approach
to using public data to assess what is really going on. At present, data presentations are
highly descriptive, poorly disaggregated, and of little real use for assessing trends and
coverage of implementation. Capacity building is needed to both reform the way data is
stored and classified, and to improve the analytical skills of those responsible for using
these databases to monitor (and thus improve) implementation.
Alternative Monitoring
Following on from the Poverty Observatory model, developing some kind of Land
Observatory involving a wide range of NGO and other interests is a useful method to
consider. In this way alternative indicators can be used to illustrate progress, and bring
pressure to bear on the government to improve its own statistics. Armed with their own
reliable data, civil society organizations and local communities can also demand more
effective implementation of the Land Law that takes into account their specific needs.
Another approach advocated here is to assist communities themselves to monitor
implementation. This takes a leaf from the Forest and Wildlife Law, which provides for
community rangers to monitor and control the illegal use of resources. There is no reason
why either these same rangers, or others specifically designated as ‘ land monitors’, could
not take on a role as monitors of tenure reform and the effective or otherwise
implementation of the relevant laws at local level.
There are interesting links to the current CFJJ programme in this context, with its focus
on paralegal training that will then provide local level legal advice on land and resource
rights and how to exercise (and defend) them. A local population that is more aware of
these issues, through effective programmes of civic education and practical, accessible
support, can also participate more effectively as the ‘land monitors’ referred to
Concluding Remarks
This short paper has shown that the widely regarded 1997 Land Law of Mozambique has
achieved partial success, but could have had far greater impact had it been more
effectively implemented. One instrument lacking in the armoury of those advocating for
better implementation as opposed to changes in the law, is an effective and systematic
monitoring of the tenure reform process.
The public database is highly skewed, and cannot be used to accurately assess the pace
and direction of tenure reform. Measures are needed such as new indicators, reforms in
the way land data are stored and classified, and upgrading the skills of staff handling
these data. Underpinning all of this is a shift by the public administration, away from its
almost myopic concern with new investors and their DUATs (which often cover large
areas but numerically are only a tiny fraction of all DUATs overall).
The public land administration needs to be able to work both with ‘conventional’
surveying units such as discrete farms that are relatively easy to demarcate and register;
and with new and unconventional units such as the ‘local community’ which
encompasses many different bundles of local rights – individual and household DUATs –
that are dynamic and difficult to administer using conventional survey and cadastral
methods. Finally they need serious upgrades in the resources available for doing their
work – vehicles, GPS, fuel and per diem budgets.
The paper also proposes alternative monitoring measures. These are located in civil
society – a kind of ‘Land Observatory’ – and at community level with individuals and
communities acting as ‘Land Monitors’ (reflecting similar community based monitoring
and policing of the Forest and Wildlife Law). These mechanisms require programmes
such as the FAO-supported CFJJ programme in Maputo, which helps local people to be
more aware of the rights they hold over land, and the rights they have as citizens to
monitor and defend the way in which these land and resource rights are being handled by
government and other actors.
Maintaining this alternative ‘check and balance’ over what official sources are saying, is
an essential element of effective monitoring. This is particularly so in the case of land
access and use, which is notoriously subject to manipulation by interests seeking to gain
control over resources at the cost of local ‘reform beneficiaries’; and who often subvert
the reform process itself by impeding the development of effective public sector
monitoring mechanisms.