best practices in community land titling - concept note · issues, and to serve as a conduit for...

Best Practices in Community Land Titling

Concept Note

BEST PRACTICES IN COMMUNITY LAND TITLING – CONCEPT NOTE Copyright © International Development Law Organization 2010 International Development Law Organization (IDLO)

IDLO is an intergovernmental organization that promotes legal, regulatory and institutional reform to advance economic and social development in transitional and developing countries. Founded in 1983 and one of the leaders in rule of law assistance, IDLO's comprehensive approach achieves enduring results by mobilizing stakeholders at all levels of society to drive institutional change. Because IDLO wields no political agenda and has deep expertise in different legal systems and emerging global issues, people and interest groups of diverse backgrounds trust IDLO. It has direct access to government leaders, institutions and multilateral organizations in developing countries, including lawyers, jurists, policymakers, advocates, academics and civil society representatives. IDLO conducts timely, focused and comprehensive research in areas related to sustainable development in the legal, regulatory, and justice sectors. Through such research, IDLO seeks to contribute to existing Practice and scholarship on priority legal issues, and to serve as a conduit for the global exchange of ideas, best practices and lessons learned. IDLO produces a variety of professional legal tools covering interdisciplinary thematic and regional issues; these include book series, country studies, research reports, policy papers, training handbooks, glossaries and benchbooks. Research for these publications is conducted independently with the support of its country offices and in cooperation with international and national partner organizations.

Disclaimer

IDLO is an inter-governmental organization and its publications are intended to expand legal knowledge, disseminate diverse viewpoints and spark discussion on issues related to law and development. The views expressed in this publication are the views of the authors and do not necessarily reflect the views or policies of IDLO or its Member States. IDLO does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of its use. IDLO welcomes any feedback or comments regarding the information contained in the publication. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. Formal permission is required for all such uses. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization. Cover image: © Rachael Knight Author: Rachael Knight, Project Manager, Best Practices in Community Land Titling Published by: International Development Law Organization Viale Vaticano, 106 00165 Rome, Italy Tel: +39 06 4040 3200 Fax: +39 06 4040 3232 Email: [email protected] www.idlo.int

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About the program

To investigate how best to support community land titling efforts and protect the rights of vulnerable groups within the context of decentralized land management and administration, IDLO is implementing a two-year “Community Land Titling Initiative” in Liberia, Mozambique and Uganda. The data gathered is expected to inform policy dialogue, assist nations to refine and improve the implementation of existing community land titling laws, and provide useful insights for countries seeking to develop laws and policies for community land titling and registration. Partnerships

This program is being implemented by the IDLO Unit for Research, Policy and Strategic Initiatives in partnership with local NGOs in Mozambique, Liberia and Uganda: Mozambique LexTerra (www.lexterra.co.mz)

LexTerra is a private legal consulting firm specializing in community land rights and investments, whose mandate is to provide high quality consulting services on land and natural resource policy and legislation to government and NGOs, and to support communities and investors in making mutually beneficial land-sharing agreements according to the Land Law’s mandates. It is led by a highly qualified attorney who specializes in land tenure law and has amongst its staff a biologist with over ten years experience leading communities through community land titling exercises. Liberia The Sustainable Development Institute (SDI) (www.sdiliberia.org)

The SDI works to transform decision-making processes in relation to natural resources and to promote equity in the sharing of benefits derived from natural resource management in Liberia. The organization's vision is a Liberia in which natural resource management is guided by the principles of sustainability and good governance and benefits all Liberians. Its activities cover a range of crosscutting issues including governance and management, environment, state and corporate social responsibility, economic and social justice for rural populations and the democratic participation of ordinary people in government management of natural resources. The organization received the Goldman Environmental Prize (the world's largest prize honouring grassroots environmentalists for outstanding environmental achievements) in 2006.

Uganda The Land and Equity Movement in Uganda (LEMU) (www.land-in-uganda.org)

The LEMU aims to unite the efforts of local people, government, civil society organizations, students, elders, volunteers, and others to improve the land rights and tenure security of the poor. LEMU works to ensure that policies, laws and structures are put in place to allow all Ugandans to have fair and profitable access to land. To this end, LEMU undertakes research, policy analysis, and grassroots legal advocacy. LEMU serves as a link between government and communities: it educates rural communities about their rights, roles, and responsibilities under Uganda’s Land Act, while simultaneously working to help government and policy makers understand rural communities’ experiences of land tenure insecurity.

Donor Support

This research is being supported by the Bill and Melinda Gates Foundation (www.gatesfoundation.org) as part of IDLO’s broader research program: Supporting the Legal Empowerment of the Poor for Development.

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Table of Contents

1. Background and problem analysis ...................................................................... 1 1.1 Land tenure security in the context of legal pluralism....................................... 1 1.2 The current context: protecting common lands amidst growing land scarcity and competition for land.......................................................................................... 2 1.3 New laws allow for community land titling and local land administration and management ................................................................................................... 3

2. Legal context .................................................................................................. 5 2.1 Mozambique............................................................................................... 5 2.2 Uganda ..................................................................................................... 6 2.3 Liberia....................................................................................................... 8

3. Research design and strategy ............................................................................ 9 3.1 Research goal............................................................................................. 9 3.2 Research outcome ...................................................................................... 9 3.3 Central research questions ........................................................................... 9 3.4 Outputs ..................................................................................................... 9 3.5 Research design and methodology ...............................................................10

3.5.1 Education and training in community land titling ......................................10 3.5.2 Paralegal support to facilitate community land titling ................................11 3.5.3 Full legal support to facilitate community land titling.................................12 3.5.4 Research control: training for district and regional land administrators ........13

3.6 Alternate research strategies .......................................................................13 3.7 Research Testing .......................................................................................14

3.7.1 Baseline surveys..................................................................................14 3.7.2 Focus group discussions........................................................................14 3.7.3 Direct observation/monitoring of community land titling-related processes ..15

4. Management Arrangements..............................................................................15 4.1 Project management team ..........................................................................15 4.2 Partner organizations .................................................................................16 4.3 Advisory Council ........................................................................................16

5. Project monitoring and evaluation .....................................................................18 6. Risk management ...........................................................................................18

6.1 Potential obstacles and strategies for mitigation .............................................18 6.1.1 Conflict and political instability...............................................................18 6.1.2 Lack of central political support for community land titling.........................19 6.1.3 Regional and local administrative officials do not support community land titling .........................................................................................................19 6.1.4 Elite capture of the titling process leads to further marginalization of vulnerable groups ........................................................................................19 6.1.5 Creation or exacerbation of inter-community conflict ................................20 6.1.6 Identification of willing participant communities .......................................20 6.1.7 Identification of control communities ......................................................20 6.1.8 Inter-country differences ......................................................................20 6.1.9 Changes to the applicable law................................................................21 6.1.10 Specific risks: Liberia..........................................................................21

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BEST PRACTICES IN COMMUNITY LAND TITLING

CONCEPT NOTE

Executive Summary

To investigate how best to support community land titling efforts and protect the rights of vulnerable groups within the context of decentralized land management and administration, the International Development Law Organization (IDLO) is implementing a two-year “Community Land Titling Initiative” in Liberia, Mozambique and Uganda. The data gathered is expected to inform policy dialogue, assist nations to refine and improve the implementation of existing community land titling laws, and provide useful insights for countries seeking to develop laws and policies for community land titling and registration.


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1. Background and problem analysis

1.1 Land tenure security in the context of legal pluralism In many African nations, the state retains ultimate title to land. Individuals and groups may hold rights of use or possession over land, but do not enjoy actual ownership. Within this context, “land tenure” can be defined as the way that land is held by individuals or groups, while “land tenure security” describes the extent to which land users can be confident they will not be arbitrarily deprived of the bundle of rights they enjoy with respect to such land. In developed countries, individual land titling has been largely successful in facilitating high levels of tenure security. The rights recognized under such frameworks are exclusionary, and fixed both geographically and temporally. Arguably, individual land titling is less suitable in contexts where much of the land is held communally under customary land administration and management systems. These systems generally comprise a complex mesh of overlapping rights that can be held by individuals, families, clans, entire communities, or be reserved for future generations and changing community needs.1 Land holdings are also not always geographically fixed: in rural areas, for example, it is common for users to employ dynamic cultivation patterns (necessitated by factors such as fluctuations in rainfall or soil fertility) that change by season and year. Finally, community members often rely upon common resources such as forests, grazing lands and water sources for their livelihoods and daily needs. Community members are generally considered the “co-owners” or rightful users of such land (see Figure 1 below).2 In such contexts, the question of how to best promote tenure security raises complex questions. Individual land titling schemes have generally proved inadequate to protect the full range of usufruct rights typical of customary land management systems. In some cases, such schemes have led to increased inequity and disenfranchisement of vulnerable groups.3 The key issue is that individual titling is not designed to take account of communal or secondary rights over land, such as rights of way, common pool resource claims, or the migratory routes of nomadic groups and hunter-gatherers. As a result, these rights remain unrecorded and may be lost.4 A particular concern is the loss of women’s land rights that can occur where formal title documents are issued only in the name of (usually male) household heads.

1 See generally: B Cousins, ‘More Than Socially Embedded: The Distinctive Character of ‘Communal Tenure’ (2007) 7(3) Journal of Agrarian Change, Volume. 2 C Tanner, Law Making in an African Context: the 1997 Mozambican Land Law, FAO Legal Papers Online No. 26 (2002). 3 A Whitehead and D Tsikata, ‘Policy Discourses On Women’s Land Rights In Sub-Saharan Africa: The Implications Of The Re-Turn To The Customary’ (2003) 3(1 and 2) Journal of Agrarian Change; D A Atwood, 'Land Registration in Africa: The Impact on Agricultural Production' (1990) 18(5) World Development; R Barrows and M Roth, ‘Land Tenure and Investment in African Agriculture: Theory and Evidence', Land Tenure Center Paper 136 (1989); J Bruce, 'Land Tenure Issues in Project Design and Strategies for Agricultural Development in Sub-Saharan Africa', Land Tenure Center Paper 128 (1986); A Haugerud, The Consequences of Land Tenure Reform among Small Holders in the Kenya Highlands, Rural Africana (1983).

CONCEPT NOTE

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1.2 The current context: protecting common lands amidst growing land scarcity and competition for land In Africa, the issue of how best to protect the land holdings of rural communities has been brought to the fore due to increasing land scarcity brought on by population growth, environmental degradation, changing climate conditions, and violent conflict. This scarcity is being exacerbated by wealthy nations and multi-national corporations who are increasingly seeking to acquire large tracts of land for tourism-related development, biofuel projects or agricultural production, among other uses.5 In many cases, governments facilitate land grants with a view to attracting investors that may bring commercial, agricultural or industrial growth and contribute to improvements in gross domestic product and living conditions. In other situations, officials may transfer land either illegally and/or for personal profit. Because most land in African nations is owned by the state, communities have little power to contest such grants. Moreover, the land being appropriated is often held by rural communities that operate under customary law and have no formal legal title. Even where rights are protected, the rural poor often lack meaningful access to justice. The state legal system may be geographically or linguistically inaccessible, unaffordable vis-à-vis incomes, and/or overly complex or burdensome. Community members may also lack awareness of their rights and how to enforce them. Titling land held under customary law is the most obvious means of protecting communities’ land rights from encroachment. However, creating a legal paradigm to allow for formalization of customarily-held land claims is a difficult exercise: customary paradigms are wide and varied and the mesh of overlapping land claims and use rights recognized under customary frameworks are not easily accommodated within modern state-based land registration systems. A potential method is to allow communities to register their lands as a whole by reference to customary boundaries, and empower them to control and regulate intra-community land holdings and usage. Such a system effectively allows a line to be drawn around the perimeter of each community, thereby creating a “tenurial shell” within which parcels of land can be held individually, by families, or communally as determined by each community. For the purposes of this paper, this method will be referred to as “community land titling”. Titling land in this way can yield significant benefits. First, it is a means of enhancing the tenure security and safeguarding the livelihoods of rural communities. As it facilitates the recognition of communal, overlapping and secondary land rights, it may provide particular protection to poor and vulnerable community members who do not have their own land. It also has the potential to safeguard an entire community’s land at once, hence representing a faster and more cost-effective means of protection than individual titling. Second, community land titling may help to foster local economic growth and promote sustainable natural resource management. In many cases community lands have high income-generating potential in terms of their natural resources and real estate or rental values. Once land is titled and legally recognized, communities can capitalize upon such potential for the benefit of all members. Titled land can also be used as collateral for loans to communities for income-yielding or development-related projects.6 Community land titling is not without its dangers. Under such systems, land management and administration is necessarily devolved to communities themselves. Yet growing land scarcity and increased land competition has been shown to exacerbate local power asymmetries and affect a breakdown in the customary rules that govern land holdings and the sustainable use

4 See further, Community Land Titling Initiative: Background Paper (2009). 5 See further L Cotula, S Vermeulen, R Leonard, and J Keeley, Land Grab or Development Opportunity? Agricultural Investment and International Land Deals In Africa, IIED/FAO/IFAD (2009). 6 L A Wily, ‘The Commons and Customary Law in Modern Times: Rethinking the Orthodoxies’ (Presentation to a Conference Hosted by UNDP on Land Rights for African Development: From Knowledge to Action: A Collaborative Program Development Process, 2005, draft).


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of common resources.7 As a result, there is a heightened risk that vulnerable rights holders, such as widows, orphans, pastoralists, tenants and people living with HIV/AIDS may lose land to land-grabbing relatives, in distress sales to neighbors or in disputes with more powerful community members. A further issue is that while titling provides opportunities for communities to sell or rent land (or the natural resources on such lands), power and information asymmetries mean that communities are in a poor bargaining position to negotiate fair and equitable contracts with the state, private enterprise or investors. 1.3 New laws allow for community land titling and local land administration and management Various African governments have passed legislation that facilitates community land titling, including Niger, Uganda, Lesotho, Ghana, Swaziland, Mozambique, Tanzania and South Africa.8 Some of these nations have created local-level government bodies with responsibility for managing customary land rights, while others have decentralized land administration to existing customary structures. In some of these nations, customary land rights are recognized as equal to state-issued land rights, customary dispute resolution bodies have been made the lowest rung of the national court system, and various customary rules have been incorporated into formal jurisprudence.9 In many cases, such legislation has been specifically designed to encourage rural investment and protect the interests of communities. The intention is that investors who wish to acquire land for development projects must negotiate with the communities who hold title over such land and enter into rental or profit-sharing agreements in return for land use. Such arrangements should protect community land holdings and livelihoods, facilitate investment-related economic growth, and boost government tax revenues. In most cases, however, these laws are not being implemented. In Uganda, no community has submitted an application for joint title to common lands under the Land Act (Cap. 227) of 1998. In Liberia, no rural community has secured title to their lands under the Public Lands Law (Title 34, Liberian Codes Revised) (1972-1973) since 1988. In Mozambique, although many communities have gone through the mandated “delimitation” process and have been granted a form of land title, this has not provided sufficient protection; communities continue to be pressured by local administrators and international investors to agree to private ventures being built on their lands without equitable rent, partnership status or profit shares.10 Reasons that community land titling has not been implemented include:

lack of community awareness regarding their land rights;

insufficient government capacity;

overly-complex and bureaucratic processes;

opposition by government and elites (who lose both their ability to easily acquire land as well as power and authority as land administration is devolved);

the prohibitive costs of and time involved in titling and registration processes;

the high level of technicality involved in land titling and registration; and 7 See generally: L Cotula (ed.), Changes in “Customary” Land Tenure Systems in Africa, International Institute for Environment and Development (2007); P Peters, ‘Inequality and Social Conflict Over Land in Africa’ (2004) 4(3), Journal of Agrarian Change; E Daley and M Hobley, ‘Land: Changing Contexts, Changing Relationships, Changing Rights’ (Paper commissioned by the Urban-Rural Change Team, DFID, 2005); Whitehead and Tsikata, above n 3; P Woodhouse, ‘African Enclosures: A Default Mode of Development’ (2003) 31(10) World Development. 8 In Liberia, although there is no community land titling law, the Public Lands Law (Title 34, Liberian Codes Revised)(1972-1973) allows communities to purchase their lands as a group and to hold, administer and manage their lands as a private owner. 9 L A Wily, Governance And Land Relations: A Review of Decentralisation of Land Administration and Management in Africa, International Institute for Environment and Development (2003). 10 See generally: A Calengo, J O Monteiro and C Tanner, Mozambique Land and Natural Resources Policy Assessment, Final Report, Centre for Juridical and Judicial Training (2007).

CONCEPT NOTE

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inter- and intra-community disputes that arise during the process of determining community boundaries.

If the potential benefits of community land registration are to be realized, steps must be taken to overcome such difficulties and assist communities to attain formal recognition of their customary land rights. Such efforts might include:

simplifying and streamlining land titling processes;

training land administrators to better understand communities’ land rights and providing incentives to support communities throughout land titling processes;

training communities about their land rights and providing support to successfully complete formal administrative procedures;

establishing accessible systems of judicial review to appeal incorrect or unfair administrative decisions; and

creating oversight and accountability mechanisms for state administrators. Steps must also be taken to reduce or eliminate power and information asymmetries and increase communities’ negotiating power with investors interested in purchasing, renting or utilizing community held lands. Finally, where land management and administration is devolved to the community level, safeguards needs to be set in place to ensure that the land rights of vulnerable groups are not violated by more powerful community members and that power-holders do not engage in corrupt or exploitative practices at the expense of the wider community. In response to these challenges, IDLO is undertaking a “Community Land Titling Initiative” (the Project) in Uganda, Liberia and Mozambique. 11 In each of these countries, although legislation facilitating community land titling is in place, these laws have either not been well or widely implemented, or governments’ promotion of international investment in rural areas has meant that community land rights remain at risk. The objectives of the Project are to:

1. Gather evidence relating to the type and level of support that communities require to successfully complete community land titling;

2. Gather evidence on the type and level of support that facilitates the best protection vulnerable groups’ land rights in the context of decentralized land management and administration.

Other important questions, but which lie outside the scope of this project, include:

Where community land titling has been implemented, has this has proved sufficient for communities to protect their land rights from external encroachment? and;

What level of support do communities require to negotiate competitively with external investors or state parties and negotiate equitable contracts for land use, development or occupation?

11 These countries were selected based on the fact that their existing legislation allowed for community land titling, with special attention paid to choosing study countries with diverse land contexts and threats. Other countries considered for inclusion in the Project included Niger, Ghana, South Africa, Swaziland, Malawi and Tanzania. These were not selected for various reasons; Malawi’s land policy has not yet been enacted into law; South Africa’s Land Act is being constitutionally challenged, Niger was not selected due to linguistic constraints; and a suitable partner organization could not be located in Tanzania.


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2. Legal context

2.1 Mozambique The passage of Mozambique’s Land Law (1997) had important implications for community land rights. Key provisions include:

customary land rights are made equal in weight and validity to formal land rights granted by the state;

holders of customary land rights do not need to produce written evidence of such rights – the oral testimony of one’s neighbours that land has been occupied in good faith for more than ten years is sufficient;

customary rights of way and other communal usufruct rights are explicitly protected;

a procedure is established for registering communities as legal entities, after which they become capable of entering into land transactions with external parties;

customary land management principles (including those related to land transfer, dispute resolution, inheritance and demarcation) may govern land use and allocation within communities;

communities are authorized to decide upon the kinds of leadership structures and rules by which they will administer land;

it is explicitly acknowledged that local customary leaders may play a role in customary land management practices;

women are recognized as having equal rights to hold, access and derive benefits from land independent of male relatives;

communities must be consulted before an external party’s application for land within that community can be granted, and communities are empowered to negotiate for “mutual benefits” in exchange for land; and

the decisions of community-level (customary) dispute resolution bodies can be appealed to the state courts, and ultimately to the supreme court of mozambique.12

Under the new law, rights of use and benefit over land can be attained in three ways:

1. Through “occupancy by individuals persons and by local communities, in accordance with customary norms and practices ...”;13

2. Through “occupancy by individual national persons who have been using the land in good faith for at least ten years”;14

3. By “authorization of an application submitted by an individual or a corporate person”15

to state land administrators who may then allocate 50-year leasehold rights, provided that the applicant has undertake consultation with and obtained the approval of the community holding rights over such land.16

Each of these types of land right are legally identical in terms of strength and validity; they are private rights and holders can exclude third parties.

12 See further, IDLO Best Practices in Community Land Titling Legal Framework Memorandum (2009). 13 Article 12(a). 14 Article 12(b). 15 Article 12(c). 16 See further Article 1, section 7 which defines occupancy as a “ form of acquisition of the right of use and benefit of land by national individual persons who have been using the land in good faith for at least ten years, or by local communities”.

CONCEPT NOTE

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It is the first two methods of acquiring rights of land use and benefit that are most relevant to rural communities. In short, the provisions give formal recognition to all land rights held by individuals and communities under customary law. Importantly, such rights do not need to be registered or titled; the Land Law states that “the absence of registration does not prejudice the right of land use and benefit acquired through occupancy… provided that it has been duly proved.”17 However, in the event that a community would like to register its land, the Land Law Regulations and accompanying Technical Annex outlines the relevant procedures. Once registered, the community holds a single “right of land use and benefit” in respect of its land. As a title holder, the community acquires legal personality and can thereafter enter into contracts with outside investors, open bank accounts and undertake other legal actions.

Mozambique: community land titling procedure

1. Community education and awareness raising Meetings are held to communicate important information to community members including: • The reason for and objectives of the delimitation process; • Relevant provisions of the law and regulations; • The methodology of the delimitation process; and • The advantages and implications of community delimitation.18

2. Participatory appraisal and map-making A participatory appraisal is defined as “information given by a local community regarding:

(a) Its history; culture and social organization; (b) The use of the land and other natural resources and the mechanisms for its management; (c) Spatial occupation; (d) Population dynamics; and (e) Possible conflicts and the mechanisms for their resolution.”19

From the appraisal two “participatory maps” are drawn, each made by separate community groups. The maps must clearly indicate community borders and neighbouring communities are required to be consulted and verify the accuracy of the maps.20 The two maps are then compiled into one computer-generated cartogram.

A “sketch plan” and accompanying “descriptive report” are then generated. The sketch plan is a transcribing of the community-generated maps into terms that enable it to be located on the cadastral maps, including geo-referencing points and agreed-upon boundaries. The descriptive report is derived from the participatory appraisal and may include the structure and history of the community, natural resources, communal areas, scared spaces and other important community infrastructures.

3. Feedback The sketch map and descriptive report are presented to the community and neighbouring communities for verification and approval.21 Once approved, the documents are entered into the national cadastre. Within 60 days the cadastral service must issue a Certificate of Delimitation in the name of the community.

2.2 Uganda Key features of Uganda's Land Act (1998) include:

recognition of customary rights of ownership regardless of formal title;

land owned according to customary law can be formally registered to obtain a certificate of customary ownership or freehold title;

communities can form community land associations and register common lands, and

17 Land Law (1997) Article 14, section 2. 18 Technical Annex Article 8, section 1. 19 Technical Annex Article 2, section 6 and Article 10, section 1. 20 Technical Annex Article 5, section 3. 21 Technical Annex Article 12, section 1.


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then administer and manage those lands according to rules agreed by the group;

provision is made for household land titling as well as individual land titling; and

significant protections for the rights of women, children, and people with disabilities, including a clause that voids any land sale not fully approved of by both spouses and all adult offspring.22

As in Mozambique, the new law gives formal recognition to land rights held by individuals and communities under customary law. The key difference is that in Uganda, the law permits outright land ownership (as opposed to a right of use and benefit) by individuals and groups. Again, while such rights do not need to be titled or registered to be considered valid, formal proof of individual or family ownership can be obtained by applying for a Certificate of Customary Ownership or a formal land title certificate. Communities can apply for joint title to their lands by creating a Communal Land Association under the following process:

Uganda: formation of communal land association 1. Formation of communal land association The group must lodge an application with the District Registrar of Title.23 The Registrar then convenes a meeting of the group, ensuring that all members are provided with proper notice of the place, date, time and purpose of the meeting.24 At the meeting, 60% of the group must agree to incorporate and elect between three to nine “officers” for the association, a third of which must be women.25 2. Creation of a constitution With the assistance of the District Registrar, the officers of the Communal Land Association prepare (or lead a group preparation of) a constitution to govern the administration and management of the jointly-owned land. The Registrar must certify that the finalized constitution provides for transparent and democratic management procedures and does not contradict the national Constitution.26 The constitution comes into effect and is binding upon members only after a majority affirmative vote.27 3. Incorporation of the association Upon approval of the constitution, the Association can apply to the District Registrar to be incorporated. The Communal Land Association is then a body corporate;28 it can sue and be sued, and enter into binding contracts.29 The officers are considered to hold the land of the Association in trust for the community, and must exercise their powers on behalf of all Association members. To transact land, the officers must convene the Association and obtain approval from a majority of members. Any land transactions that have not been duly approved are considered null and void.30 Where the applicable customary law provides for it, an Association can recognize individual or family land holdings.31 It can also set aside areas for common use, including for the grazing and watering of livestock; hunting; gathering of wood fuel and building materials; and gathering of forest resources for food and medicinal purposes.32 Boundaries of such land must be marked

22 See further, IDLO Best Practices in Community Land Titling Legal Framework Memorandum (2009). 23 Article 16, section 1. 24 Article 16, section 3. 25 Article 16, sections 4,5. 26 Article 17, sections 1-3. If the Registrar finds that the constitution does not adequately provide for democratic and transparent procedures, it must return the constitution to the Association within 30 days with an explanation of why it was rejected, and the Association must be given a chance to revise and resubmit it. 27 Article 15, section 4,5. 28 After the Communal Land Association has become a body corporate, it can then, subject to approval by the Registrar, vary any terms and conditions that the Registrar set (Article 18, sections 3,4). 29 Article 19, section 1. 30 Article 19, section 3. 31 Article 22, section 1. 32 Article 23, section 3.

CONCEPT NOTE

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according to accepted local practices33 and be managed according to a common land management scheme agreed upon by Association members.

2.3 Liberia Liberia’s legal framework for land administration is wrought with confusion. Such confusion centers around a nation-wide uncertainty as to whether the Hinterland Law (An Act Approving the Revised Laws and Administrative Regulations for Governing the Hinterland) (1949) or the Aboriginals Law (Title 1: Aboriginals Law, Liberian Code of Laws) (1956) governs the land rights of rural communities. Given that there are key differences between the land administration regimes established by each of these laws, the consequences of the current legal uncertainty are significant. Under the Hinterlands Law, Liberian tribes have title to and own their land in perfect usufruct, whether or not they have procured deeds of title.34 Under the Aboriginals Law, ownership of all land is vested in the government and tribes are entitled only to “the use of as much of the public land in the area” as they need for purposes such as farming.35 This situation leaves rural communities with little land tenure security and no clear way of resolving the problem, although efforts are underway to establish a Land Commission to investigate these and other issues. However, as an interim solution, a procedure exists in the Public Lands Law (Title 34 of the Liberian Codes Revised) through which both communities and individuals can purchase the land they are occupying and using from the government and acquire a title deed:

Liberia: public land sale deed procedure

1. The applicant must obtain the consent of the relevant tribal authority to purchase the land in question and pay a sum of money as a token of their good faith to live peacefully with the tribesmen.

2. The applicant takes proof of this consent to the Land Commissioner (or District Commissioner acting as the Land Commissioner for the area) who must certify that “…the parcel of land in question is not a portion of the Tribal Reserve, and that it is not otherwise owned or occupied by another person”.

3. The applicant purchases the land at a rate of US$0.50/acre.

4. The applicant sends all relevant documents to the President and requests that the Public Surveyor for his/her area survey the land. Once the President’s office has issued this order, the applicant then presents the order to the Public Surveyor.

5. The Public Surveyor surveys the land (and charges an appropriate fee).

6. The County Land Commissioner prepares and authenticates a formal deed and presents it to the applicant.

7. The applicant presents the deed to the President for signature.

8. Once signed, the applicant has the deed probated in the County Court.36

33 Article 23, section 1,2. 34 The text of the law reads: “The right and title of the respective tribes to lands of an adequate area for farming and other enterprises essential to the necessities of the tribe remain inherent in the tribe to be utilized by them for these purposes; and whether or not they have procured deeds from Government delimitating by metes and bounds such reserves, their rights and interest in and to such areas are a perfect reserve and give them title to the land against any person or persons whosoever. (Article 66(a) emphasis added). 35 The text of the law reads “Each tribe is entitled to the use of as much of the public land in the area inhabited by it as is required for farming and other enterprises essential to tribal necessities. It shall have the right of possession of such land as against any person whomsoever."(Article 270, emphasis added). 36 Public Lands Law Title 34, Chapter 3§30.


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3. Research design and strategy

3.1 Research goal To strengthen the land tenure security of rural populations through legal empowerment approaches. 3.2 Research outcome To gather evidence on how best to support community land titling efforts and protect the rights of vulnerable groups within the context of decentralized land management and administration. 3.3 Central research questions

1. What type and level of support do communities require to successfully complete

community land titling processes?

2. What type and level of support facilitates the best protection of the land rights of vulnerable groups in the context of decentralized land management and administration?

3.4 Outputs

three training curriculums for communities on how to successfully complete the community land titling process (one per country);

three training curriculums for government administrators concerning implementation of community land titling laws and procedures (one per country);

three low-literacy “how to” guides for community members and local land administrators translated into the local language (one per country), with anticipated publication of an average of 1,200 copies per nation, for a total of 3,600 copies printed and disseminated;

30 community paralegals trained to be advocates for their communities' land titling processes (two elected paralegals per community, ten paralegals per country);

members in 45 communities educated on a monthly basis about their land rights, ensuring a minimum of 2,250 villagers (50 per community) and a maximum of 4,500 villagers (100 per community) trained across three countries;

15 communities provided on-going basic legal support by elected paralegals (five communities per country);

15 communities provided on-going, extensive legal supported by lawyers (five communities per country);

20- 30 district- and sub-district level land administrators in each country trained in how to implement community land titling law and procedures and best support communities throughout these processes, (a total of 60-90 administrators trained);

three national presentations to policy makers, relevant government officials, key civil society actors, and other stakeholders (one per country);

three country-specific reports detailing:

› documentation and analysis of the project activities, including findings and recommendations;

› assessment of the strengths and weaknesses of the relevant country’s community land registration law, regulations and implementation;

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› recommendations for improvements in the legal framework and implementation plan; and

› identification of “best practices” in legal support for community and titling processes;

one final report analyzing the project research and activities, and detailing results, findings and recommendations; and

presentation, publication and dissemination of the international report at an international conference.

3.5 Research design and methodology The research will be conducted by providing groups of communities with different levels of legal assistance with respect to community land titling, and then observing these communities’ progress through the various steps outlined in the relevant laws and regulations. In each of the three countries, 20 communities will be selected to participate in the Project. Only those communities that express a desire to title their lands and take part in the Project will be included (a risk management strategy to ensure the free and informed consent for each participating community has been developed). These communities will be randomly divided into four groups of five communities. Three groups will receive varying levels of legal assistance and a control group, that will receive no assistance, will try to undertake the community land titling process independently. Their experiences will then be compared and analyzed. Group Target population Assistance provided Other relevant assistance provided Group A

5 communities in 3 countries

No assistance (control group)

Education and training to local and regional land administrators

Group B

5 communities in 3 countries Legal education and training Education and training to local and

regional land administrators Group C


Legal education and training + paralegal support


Groups D


Legal education and training + full legal support


The three types of support to be provided are: 3.5.1 Education and training in community land titling Provided to 15 communities in each country. A Project legal team (comprised of a lead lawyer and community mobilizer) will provide one 2-3 hour training session each month for a period of 12- 14 months. All community members will be invited and are expected to take part in these training sessions. Specific measures will be adopted to ensure the participation of women and other vulnerable groups.37 Country-specific training methodologies will be developed to ensure that information is transmitted in a culturally-appropriate manner, taking into account literacy levels and the time and resource constraints of different community members.38 A community training curriculum will be

37 Measures will include: scheduling meetings in places and at times that women can more easily attend; posting signs informing people about meetings at places women usually frequent, such as bore holes and grinding mills; sending community leaders and the community mobilizer door-to-door throughout the village specifically requesting that a) women attend and b) husbands bring their wives with them to meetings, and, if necessary in some communities, scheduling additional women-only meetings. 38 Oftentimes only the wealthiest members of a community can afford to leave their work to participate in training, and thus capacity-building exercises may entrench pre-existing power asymmetries. The project will therefore strive to work with as broad a section of the community as possible, ensuring that notice of meetings reaches marginalized individuals that have the least access to attending public forums. Trainings will be designed to accommodate marginalized persons’ livelihood responsibilities and will be conducted in a manner that is easily integrated into their lives.


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developed and low-literacy “how to” guides for community members will be disseminated. The training will cover the following topics:

Topics relevant to research question No. 1 Topics relevant to research question No. 2 Community land titling legislation and related legal topics e.g. women’s land rights, inheritance law, natural resource and conservation law;

The statutory rights of vulnerable groups relating to land and other relevant legal protections, such as national inheritance and anti-discrimination laws (e.g. constitutional guarantees prohibiting discrimination);

The national legal framework, including the structure of local and national government, the national constitution, the existence of legal services and how to access them, the position of customary law within the statutory legal framework, and the structure of the national court system;

The importance of and benefits stemming from protecting the rights of vulnerable groups within the context of intra-community land administration and management, including steps that communities can take to protect such rights e.g. by incorporating specific protections into community bylaws or constitutions;

The benefits and potential risks of community land titling;

The statutory rights of vulnerable groups relevant to community land titling including existing legal mechanisms designed to protect such groups e.g. minimum requirements for female participation on community land management boards/associations and rules requiring that community bylaws comply with the national constitution;

The practical skills required to title lands, including: relevant agencies and their location; how to access and complete relevant forms; how to access required documentary proof; the types of assistance available (e.g. fee waivers and translators) and how to avail of such assistance; and basic protection measures (e.g. asking for receipts and copies of original documents).

Existing or past customary laws that operate to protect the land rights of vulnerable groups, with efforts made to support communities to analyze similarities between statutory protections and customary protections and integrate the two systems for enhanced protection;

How to appeal unjust outcomes or decisions by customary leaders or local officials, and how to adapt or formalize customary dispute resolution strategies to be compatible with alternative dispute resolution methodologies more accepted by the formal justice system.

Mechanisms and services that exist at the statutory level for enforcing the rights of vulnerable groups e.g. ombudspersons, legal aid services, land complaint boards, etc., including how to access these services.

Information regarding the laws’ parameters regarding granting land or sharing land with outside investors.

3.5.2 Paralegal support to facilitate community land titling Provided to five communities in each country. Two community members will be elected39 to become “land paralegals” who will lead their communities through the land titling process. These paralegals (who will be remunerated by the Project) will receive training conducted by the Project legal team (comprised of a lead lawyer and community mobilizer) as well as on-going support and supervision. The paralegals will take part in a 2-3 day training covering the topics detailed in (i) above, but on a more rigorous and in-depth level. Paralegals will then be required to attend a monthly 2-3 hour meeting with the Project legal team, during which time the paralegals will report on their progress to date, ask questions and request support, debrief any obstacles confronted or challenges faced, and receive general support and supervision. The paralegals will be provided

39 The election methodology is to be decided upon by communities themselves.

CONCEPT NOTE

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with phone credits and encouraged to call and “SMS” the legal team with questions. The training and assistance provided to the paralegals will include: Assistance relevant to research question No. 1 Assistance relevant to research question No. 2 Training on the national legal framework, including the structure of local and national government, the national constitution, the existence of legal services and how to access them, the position of customary law within the statutory legal framework; and the structure of the national court system.

Training to facilitate community compliance with statutory requirements relating to the protection of vulnerable groups’ land rights.

Training on the content of relevant land laws and the steps that must be followed to obtain a community land title.

Training to encourage and facilitate communities’ adoption of voluntary measures to protect vulnerable groups’ land rights e.g. provisions within community bylaws or constitutions protecting the land rights of women, or management plans that establish the equitable distribution of community benefits generated from titling processes.

Training in meeting facilitation, including mediating debates and discussions so as to ensure that all viewpoints are heard and that resolution are agreed upon by majority.

Trainings to ensure that paralegals work to ensure that vulnerable groups actively participate in all aspects of community land titling including community meetings, mapping, dispute resolution etc. Steps might include convening special groups of vulnerable populations, such as all women’s groups (led by women facilitators) or convening community meetings in ways that minimize infringement upon marginalized groups’ livelihood responsibilities.

Training in the practical skills required to title lands, including: community mapping and boundary-definition; relevant agencies and their location; how to complete relevant forms; how to obtain relevant documentary proof; the types of assistance available (e.g. fee waivers and translators) and how to avail of such assistance; and basic protection measures (e.g. asking for receipts and copies of original documents).

Training concerning how to act as an advocate for vulnerable persons or groups that face discrimination or abrogation of their land rights at the community level, including how to provide advice and referrals to persons seeking to legally challenge intra-community land-related rights violations or discrimination.

Training on strategies for aligning customary rights with national laws and human rights principles, including strategies for working with customary leaders/clan elders to integrate national legal principles into their local conflict-resolution methodologies.

Training concerning how to work with customary leaders to address intra or inter-community dispute resolution where the issue impacts upon the land rights of vulnerable groups.

3.5.3 Full legal support to facilitate community land titling Provided to five communities in each nation. The Project legal team (comprised of a lead lawyer and community mobilizer) will work directly with these communities to support them throughout the community land titling process. The type, level and timing of support provided will be determined by each community but it is expected that the Project legal team will visit communities at least twice per month over 12-14 months. The assistance provided may include:


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Assistance relevant to research question No. 1 Assistance relevant to research question No. 2 Support throughout the creation of community land administration and management plans, specifically the drafting and finalization of community bylaws/constitutions and land dispute resolution systems.

Encouraging and facilitating community compliance with statutory requirements relating to the protection of vulnerable groups’ land rights.

Support for community mapping and boundary delimitation exercises (including defining borders with neighboring communities).

Encouraging and facilitating the introduction of voluntary measures to protect vulnerable groups’ land rights in community constitutions/bylaws and land management plans.

Preparation and presentation of required forms and documentation to relevant authorities.

Taking steps to ensure that vulnerable groups actively participate in all aspects of community land titling including community meetings, boundary definition and mapping exercises, constitution/bylaws drafting discussions, and the creation of management plans.

Support to communities should they need to contest/appeal administrative decisions in a court or tribunal.

Providing legal advice and acting as advocates for vulnerable individuals or groups that face discrimination or abrogation of their land rights at the community level.

Support to resolve inter or intra-community land disputes.

Providing advice and referrals to vulnerable persons or groups who seek to legally challenge intra-community land-related rights violations or discrimination.

Assisting in intra or inter-community dispute resolution where the issue impacts upon the land rights of vulnerable groups.

3.5.4 Research control: training for district and regional land administrators To enhance the accurately of the research findings, it is important that relevant district and regional land administration officers have adequate knowledge in community land titling laws and procedures. As such, all relevant officials will be provided with 2-3 days of training by the Project legal team. Local partner organizations will be responsible for developing selection criteria, however, it is expected that all local officials with community land titling responsibilities – ranging from 20-30 officials per nation – will participate in the training. The training will cover relevant laws and procedures (with special emphasis on the procedural rights of marginalized groups), the obstacles faced by rural communities attempting to title their lands, and how they might assist applicants to overcome these obstacles. Participants will also be provided with “how to” manuals created by the Project. 3.6 Alternate research strategies This strategy was chosen based on the evidence (cited above in Part I) that although titling community lands may yield significant benefits, communities have either not tried or not been able to title their lands. As such, this research was designed to investigate the degree and type of support that communities need to successfully title their lands. Other studies could have hinged on the size of the lands titled, the types of land titles (forest lands, wetlands, etc.) or the unit of “community” undertaking these processes (village, clan chiefdom, etc.). However, as the greatest impediment to successful completion of the legally-mandated titling procedures was deemed to be communities’ lack of knowledge about and capacity to follow titling processes to their successful conclusion, determining what support is most effective and efficient was determined to be the most important outstanding question.

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3.7 Research Testing The research will be tested through: 3.7.1 Baseline surveys A baseline survey will be administered to 32 individuals randomly selected from each community taking part in the initiative (for a total of 640 individuals per country). The sampling methodology will be randomized both within each community and within each household to ensure a representative sampling of families and the demographics of surveyed respondents. The objective of the baseline study is to determine the conditions prevailing in communities before the titling processes begin. The survey will be administered by a research team of 3-4 researchers recruited on a short-term basis specifically for this purpose. The survey will comprise structured questions with predetermined answer categories, and some semi-structured or open-ended questions, so as to capture both qualitative and quantitative data. A separate baseline survey will be administered to 20-30 land officials in each county. Both baseline surveys will be re-administered upon completion of the Project to the same target audience. In the event that a participant is not available, another individual in an entirely new household will be randomly selected, but marked as not having taken part in the baseline survey. The objective will be to determine changes that have occurred during the course of the Project. Additional questions will be included to measure the various impacts of the Project interventions. 3.7.2 Focus group discussions At the commencement of the Project, three focus group discussions will be held in each community taking part in the initiative involving (i) 7 women (including roughly 50% widows) (ii) 7 community leaders and (iii) a random grouping of 7 community members (for a total of 20 x 3 focus group discussions per country). The focus groups of women and general community members will also be randomly selected. The questions asked during the focus group discussions will be based upon the baseline survey questions, with the objective of adding narrative content to the close-ended answers in the survey form and assisting in the Project’s analysis of the baseline survey responses.


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3.7.3 Direct observation/monitoring of community land titling-related processes The objective is to gather data on the community land titling process and protection of vulnerable groups in such processes. Observations will be made (i) during monthly legal education meetings (ii) by paralegals during all aspects of the titling process (iii) by the legal team as they provide additional legal support to Group D communities throughout the titling process. Interactions between community members and relevant state officials, including any obstacles confronted, will be recorded. The monitoring data will be collected by the project’s lead researcher monthly during community legal education meetings. 4. Management Arrangements

The project will be managed by an in-country Project Director with oversight from the Senior Research Officer (Geneva) and Director of Research and Policy (Rome). IDLO has engaged non-government organizations in each of the three study countries to carry out the research on a sub-contract basis. While staffing arrangements differ slightly by country, the project staff will generally include:

30% - 50% of the time of the partner organization’s executive director;

one senior lawyer;

one community mobilizer;

one senior researcher;

three to four research assistants who will be employed only during the baseline and post-service studies;

one driver; and

25% - 30% time of the organization’s staff accountant/finance manager. The project staff will be supervised by the partner organizations’ executive directors and the Project Director. The partner organizations are required to submit monthly progress reports (summarizing the activities completed, obstacles confronted, and solutions devised) and quarterly progress reports (detailing activities and including both a financial report for the previous quarter and a financial forecast for the following quarter). 4.1 Project management team

Erica Harper (IDLO)

Dr. Erica Harper is a Senior Research Officer for IDLO, with a Bachelor of Commerce and Bachelor of Laws (Hons) (Macquarie University, Australia) and a Ph.D (University of Melbourne, Australia). Her areas of specialization include post-conflict judicial rehabilitation; international criminal law and transitional justice; and alternative and customary dispute resolution. Prior to joining IDLO, Dr Harper was the Director of the Institute for Post-Conflict and Development Law (Geneva) and a protection officer at the United Nations High Commissioner for Refugees (Geneva, Timor Leste and the Philippines). Her working languages include English, French and Bahasa Indonesia. Rachael Knight (IDLO)

Rachael Knight is an attorney with expertise in the areas of land tenure security and access to justice/legal empowerment of the poor. A graduate of the UC Berkeley School of Law (Boalt Hall), Rachael worked for seven years founding and running medical-legal partnership programs to increase low-income families’ access to justice within hospitals in the San Francisco Bay Area and fostering replication of the model throughout California. She was a Fulbright Scholar in Mozambique from 2001-2002 and an Equal Justice Works fellow from 2005-2007. She worked as a consultant for the Food and Agriculture Organization of the

CONCEPT NOTE

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United Nations (FAO) from 2004 until 2009, both for the Legal Development Service and the Land Tenure division of the Natural Resources Management and Environment Department. Her working languages include English, Portuguese and Spanish. 4.2 Partner organizations Liberia: The Sustainable Development Institute (SDI) http://www.sdiliberia.org

The Sustainable Development Institute works to transform decision-making processes in relation to natural resources and to promote equity in the sharing of benefits derived from natural resource management in Liberia. The organization's vision is a Liberia in which natural resource management is guided by the principles of sustainability and good governance and benefits all Liberians. Its activities cover a range of cross-cutting issues including governance and management, environment, state and corporate social responsibility, economic and social justice for rural populations and the democratic participation of ordinary people in government management of natural resources. The organization received the Goldman Environmental Prize (the world's largest prize honouring grassroots environmentalists for outstanding environmental achievements) in 2006. Mozambique: LexTerra http://www.lexterra.co.mz

LexTerra is a private legal consulting firm specializing in community land rights and investments, whose mandate is to provide high quality consulting services on land and natural resource policy and legislation to government and NGOs, and to support communities and investors in making mutually beneficial land-sharing agreements according to the Land Law’s mandates. It is led by a highly qualified attorney who specializes in land tenure law and has amongst its staff a biologist with over ten years experience leading communities through community land titling exercises. Uganda: The Land and Equity Movement in Uganda (LEMU) http://www.land-in-uganda.org

The Land Equity Movement in Uganda aims to unite the efforts of local people, government, civil society organizations, students, elders, volunteers, and others to improve the land rights and tenure security of the poor. LEMU works to ensure that policies, laws and structures are put in place to allow all Ugandans to have fair and profitable access to land. To this end, LEMU undertakes research, policy analysis, and grassroots legal advocacy. LEMU serves as a link between government and communities: it educates rural communities about their rights, roles, and responsibilities under Uganda’s Land Act, while simultaneously working to help Government and policy makers understand rural communities’ experiences of land tenure insecurity. 4.3 Advisory Council To maximize the Project’s effectiveness, IDLO has created an expert Advisory Council to support the Project by providing advice and assist in problem-solving. The Project management team will provide progress updates to the Advisory Council four to five times per year. In the Project’s planning phase, the Advisory Council assisted in: selecting appropriate focus countries; identifying appropriate partner organizations; facilitating partnerships; advising on Project structure and goals; and sharing current understandings of how best to increase the land tenure security of the rural poor. Throughout the Project, the Advisory Council may be called upon to advise Project staff regarding: research methodology and design; how obstacles encountered might be addressed; and how to adapt Project goals and aims in response to changing circumstances. At the conclusion of the project, the Project


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management team will seek the Advisory Council ‘s support in its analysis of research findings and its assistance in the dissemination of all resulting Project publications. The Advisory Council currently consists of:

1. Martin Adams, Principal Consultant, Mokoro Consulting 2. John Bruce, President, LADSI Incorporated 3. Klaus Deininger, World Bank Lead Economist, Development Research Group,

Land Tenure Adviser, Agriculture & Rural Development Department, The World Bank

4. Lorenzo Cotula, Senior Researcher, Law & Sustainable Development, Natural

Resources, International Institute for Environment and Development (IIED) 5. Ben Cousins, Director, The Institute for Poverty, Land and Agrarian Studies

(PLAAS) 6. Stephan Golub, Adjunct Professor, UC Berkeley School of Law 7. Paolo Groppo, Land Tenure and Management Unit, The Food and Agriculture

Organization of the United Nations (FAO) 8. Tim Hanstad, Executive Director,Rural Development Institute (RDI) 9. Simon Keith, Independent Consultant 10. Jonathan Mills Lindsay, Senior Counsel, Environmental and International Law,

The World Bank Legal Department 11. Harold Liversage, Land Tenure Technical Adviser, International Fund for

Agricultural Development (IFAD) 12. Vivek Maru, Co-Founder, Timap for Justice Counsel, Justice Reform Practice

Group, The World Bank 13. Paul Mathieu, Land Tenure and Management Unit, The Food and Agriculture

Organization of the United Nations (FAO) 14. Patrick McAuslan, Professor of Development Law, Birkbeck School of Law,

University of London 15. Sibongile Ndashe, Equality Program Attorney, The International Centre for the

Protection of Human Rights (Interights) 16. Hubert Ouedraogo, Coordinator, LandNet West Africa 17. Robin Palmer, Principal Consultant, Mokoro Consulting 18. Ivon Pires, Pires Advogados e Consultores 19. Ringo Tenga, Senior Lecturer, Faculty of Law, University of Dar es Salaam 20. Liz Alden Wily, Independent Consultant

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5. Project monitoring and evaluation

In order to ascertain that Project goals are being met, IDLO will track activities as outlined in the work-plan including through:

monthly reports by the in-country legal team and research team in each country (including summaries of the community paralegals’ monthly reports);

monthly reports by the project supervisors in each country;

monthly reports by the project director; and

quarterly reports, including financial reports and financial forecasts. The legal and research teams will be asked to report on the following areas:

the number of meetings held, the numbers of community members at each meeting (including a breakdown of attendee demographics), and a summary of the content of each meeting;

the number of “how to” guides disseminated, including data on who received them and when;

analysis of all interactions with paralegals, including the content of the monthly paralegal support meetings;

a summary of all community interactions with land administrators during land titling processes, including what interactions and results occurred at each step;

the number of individuals trained per month and the topic of those trainings; and

a summary of when and for what issues paralegals contacted attorneys for additional legal support, the information provided or intervention taken, and the result.

In addition, to calibrate the impacts of the Project’s findings and final recommendations IDLO will develop mechanisms to measure:

feedback from key land tenure experts, government officials, stakeholders and publication recipients regarding the relevance, utility and accuracy of publications;

the number of citations or references to the project’s research findings and publications, as well as the number of downloads of project publications from the idlo website;

the number of publications requested and disseminated;

media coverage of the publications’ release; and

observable changes to institutional strategies to land titling programming and policies as a result of the project’s findings, as reported in the publications or through interviews with key stakeholders.

6. Risk management

6.1 Potential obstacles and strategies for mitigation

6.1.1 Conflict and political instability Mozambique and Uganda are regarded as having high levels of political and social stability, and the communities in which the Project team will be working are considered safe for travel. Liberia has recently emerged from civil conflict and is still classified as having a high security


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risk. IDLO will continue to monitor security and political developments in Liberia closely. In all three nations, the Project Director has discussed security measures with in-country partner organizations (in accordance with IDLO Security Policy) and security operating procedures will be set in place. If the security situation deteriorates in such a way as to impact the research, IDLO will coordinate with donors to develop response plans and amend Project delivery strategies accordingly.

6.1.2 Lack of central political support for community land titling In Mozambique and Liberia there is poor support for community land titling among central government officials, creating a risk that political support for the Project may be withdrawn. A further issue is that elections will be held in both nations in 2009-2010, with the result that all work involving political elements will be carefully monitored by government. To guard against such risks the Project managers will:

Invest in targeted and strategic relationship-building and education at all levels of government,

Ensure that all relevant regulations and requirements regarding the execution of development projects and the employment of foreign staff are complied with.

6.1.3 Regional and local administrative officials do not support community land titling Where there is poor support for community land titling on the part of local and regional land administration officials, there is a risk that they may obstruct communities’ efforts to title their lands. Such impediments will impact the Project’s research findings. To guard against this, project sites were carefully selected following a review of various districts’ recent record of supporting or obstructing community land titling efforts. This process included careful consultation with in-country partner organizations, interviews with land officials, and discussions with relevant local non-government organizations.40 IDLO is confident that as a result of these efforts, the majority of local government officials in the study areas selected are either supportive of or neutral towards community land titling. It is further expected that the strong reputations of the in-country partner organizations, the relationships forged between the Project managers and government officials, and the political and social skills of the Project team will assuage any bureaucratic resistance encountered. Failing this, the in-country partners may employ strategies such roundtable meetings, media publicity, and legal action to promote downward accountability and move community land titling processes forward. It must be highlighted, however, that if lack of cooperation by local and regional officials obstructs community efforts to title their land, this will be an important finding and the research has been designed to capture such information. 6.1.4 Elite capture of the titling process leads to further marginalization of vulnerable groups Community land titling involves devolving responsibility over land management and administration to local communities. A key risk inherent in this model is that local leaders or powerful groups within communities may take advantage of such empowerment to violate the rights of more vulnerable land holders. This is an important area of inquiry for the research and although steps will be taken in some communities to encourage the protection of vulnerable groups, the nature of the research design is such that these steps will only take

40 For example, in Liberia, local land officials have welcomed the project and continually offer support and assistance in helping to gather necessary relevant documents and information. In Uganda, the Project chose to work in a district where the in-country partner had been asked to provide training to its local leaders. In Mozambique, the Project selected a Province known to have land administrators sympathetic to community titling initiatives.

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place in communities receiving paralegal and full legal support (a total of 30 communities). While the findings relating to the level of rights protection for vulnerable groups vis-à-vis the level of support provided are highly important, it is equally important to highlight the specific risks to individuals and their livelihoods. 6.1.5 Creation or exacerbation of inter-community conflict Determining, defining and mapping community boundaries has the potential to spark conflict between neighboring communities and/or within a community. Monitoring such developments is an important component of the research. Although steps will be taken to manage or diffuse such conflicts – for example, the paralegals and legal team will provide legal support in the form of conflict mediation and alternative dispute resolution tactics – the nature of the research design is such that these steps will only take place in communities receiving paralegal and full legal support. While the findings relating to community conflict vis-à-vis the level of support provided are highly important, it is equally important to highlight the specific risks to individual families, their relationships and their livelihoods. It should also be noted that in the communities receiving only education, the training provided will include conflict-resolution strategies, and community leaders will be urged to proactively address and resolve potential and actual conflicts. 6.1.6 Identification of willing participant communities It is essential to the research that the participating communities are committed to and in support of community land titling. This may be difficult in countries where the benefits of community land titling are not widely understood (such as Mozambique) or where communities are skeptical and suspicious of government processes (such as Uganda). There is a related risk that communities may view participation as a means of securing financial benefits or the provision of cost-free basic infrastructure. A community selection strategy for each of the countries has been designed to address such issues. In Mozambique and Liberia, the strategy adopted is to make participation “expensive” in terms of the time and effort required of community leaders and other relevant individuals; communities who continue to send representatives to the initial selection meetings will be taken to have an active interest in having their land titled. Communities will also be advised that the Project is offering no benefits apart from legal education and possible titling. In Uganda, the Project will be working in a region where there are relatively few remaining common areas and where communities are open to the idea of protecting shared lands. Efforts will be made to build these communities’ awareness of the potential benefits of titling their common areas and to ensure them that community land titling will not restrict communities’ abilities to govern their common areas according to customary laws, that customary leaders can be elected to the Community Land Associations, and that titling will not result in government seizure. 6.1.7 Identification of control communities There is a risk that the communities randomly selected to be control communities will be unwilling to actively undertake community land titling independent of any project support (as explained above, the Project will first select 20 communities in each nation that have indicated a strong desire to title their lands and from these select control communities). Should this occur, the results will be important research findings.41 6.1.8 Inter-country differences

41 The Project hopes to ensure cooperation of control communities by instilling a measure of pride and sense of personal responsibility that communities are sufficiently competent and empowered to complete titling processes on their own. The Project will also explain that they will receive the added benefit of local administrators who have been trained in how to implement land titling laws. Finally, contingent upon future funding, these communities are likely to receive support from the in-country partner organizations at the Project’s conclusion.


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The research methodology centers around gauging differences in behaviors and outcomes vis-à-vis the different levels of assistance provided. Inter-country variations — such as differences in legislation, procedural obstacles and level of commitment by local land administrators — may skew such outcomes and make it difficult to analyze results. To synchronize what are significantly different titling processes the Project will require (as a condition precedent to participation in the Project) that communities in Mozambique and Liberia follow two procedures mandated in Uganda’s Land Act (1998): the creation of community by-laws/constitutions and community land management plans. In addition, the research methodology has been designed to capture outcome and behavior differences that result from inter-country variances. 6.1.9 Changes to the applicable law In Mozambique, some government officials support amendment of the law that would increase government control over land and reduce the area of land communities can claim title to. In Liberia, the legal framework regulating land use and ownership is unclear, and a Land Commission is currently being established to draft recommendations for a future land policy and new land law. In both nations, an amendment to the law or clarification regarding the applicable law has the potential to impact the viability of the research. The Project team will closely monitor developments in this regard and if required will coordinate with donors to develop response plans and amend Project delivery strategies accordingly. 6.1.10 Specific risks: Liberia As stated above, there is lack of clarity regarding the applicable framework for land administration in Liberia. The Hinterland Law (An Act Approving the Revised Laws and Administrative Regulations for Governing the Hinterland) (1949) provides that communities already have formal legal ownership of their land, and an argument can be made that the law is still in force. However, the only existing procedure for communities to acquire formal title to their lands is one that involves “buying” the applicable land from the state through the Public Land Sale Deed process (described above). This approach implies that, contrary to the Hinterland Law, communities do not actually have title to their land. Pursuing land registration via this process may have implications for communities as they are making an implicit acknowledgment in this regard. A further issue is that the Public Land Sale Deed process requires that the President sign all deed applications before they become official. President Johnson Sirleaf has stated (albeit unofficially) that she will not sign any deed for land with an area greater than 500 acres. There is hence a risk that communities may complete all other steps in the land titling process (including a payment of $0.50 US$ /acre), only to be blocked at the final step. This may result in community hostility towards the in-country partner organization, jeopardizing their work in the region. To mitigate against these risks, the in-country partner organization will undertake at least four months of lobbying at the central government level to promote the signing of the deed applications, carefully monitor any legislative developments, clearly outline all risks to communities, and take steps to manage community expectations.

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