The regime of rights to land in Mozambique has undergone a radical change in the last few years. The timetable of amendments to legislative instruments dealing with land issues has been rapid: a new Land Policy was adopted in 1995; the new Land Law was passed in 1997; regulations for dealing with rural land parcels were promulgated in 1998 and a Technical Annex to these regulations (detailing the methodology by which registration of community rights should take place) was passed at the end of 1999.
These changes took place within a context of general and fundamental transition, as the country made a shift from socialism to political pluralism. This process, in Mozambique, has taken place over the last decade. In 1987 the adoption of a Structural Adjustment Programme signalled the beginning of the shift and the fifth FRELIMO Party Congress in 1989 and the adoption of a revised constitution in 1990, followed by a Peace Accord that ended the civil war in 1992, all added impetus to the process.
The first amendments in the approach to land management and the recognition of individual land use rights came in 1987 with the revision of the existing land law regulations. Although these permitted concessions for private land use rights to be awarded by the state, in many other respects the fundamental bases of land policy at this time remained in place. The state continued to be the owner and manager of the State Land Fund, the purchase and sale of land was still not legally recognised and land areas cultivated by the family sector were protected only in principle.
By the early 1990s, it became clear that the national legal and regulatory framework governing land use rights did not provide secure tenure rights to either smallholders or larger commercial interests. In addition, the amended constitution had obliged the State, for the first time, to recognise rights acquired through inheritance or occupation. Together, these heralded the subsequent revision of the land law and led to the legal recognition of customary and other rights to land and the development of registration mechanisms to record and manage these new rights.
The National Land Policy that was developed in subsequent years and approved by the Council of Ministers in October 1995 contained several important elements that had been absent. These included the recognition of customary rights over land, including the various inheritance systems and the recognition of the role of local community leaders in the prevention and resolution of conflicts. The policy has dual objectives; it aims to create conditions for the development and growth of local communities and to promote investment in rural areas through the involvement of the private sector. In the policy document the phrasing of this central intent to "safeguard the diverse rights of the Mozambican people over the land and other natural resources, while promoting new investment and the sustainable and equitable use of these resources" (our emphasis) appears to recognise that there is potential for these two objectives to be in opposition.
Most importantly, perhaps, the land policy underlined the importance of developing a legal framework for land rights that would be sufficiently flexible to accommodate different systems and scenarios, particularly in respect to rights and land holdings in the family sector. There was a recognition that customary land holding mechanisms did not necessarily consist of rigid rights and precise rules and that customary law in respect to land use regulation was by nature procedural. To give some effect to this, the role of traditional authorities in the prevention and resolution of conflicts was secured in the subsequent legislation.
Finally, the policy also, significantly, maintains the concept of all land belonging to the state, despite a strong lobby for the full privatisation of land.
After the adoption of the policy there followed a period of fairly extensive public consultation, overseen by the National Land Commission and its Technical Secretariat, a statutory body that had been created through Presidential Decree in 1996. In June of that year a national Land Conference was held and, according to the conference report of the Land Commission, a wide range of issues relating to the proposed new Land Law, were discussed. These are listed in Text Box 1.
The land commission report fails to capture the fact that several aspects of the draft legislation were problematic for small farmers and their representatives. The debate that ensued regarding the draft law often consisted of strongly opposing positions of different interest groups. Some of these opinions and positions are listed in Text Box 2 below. One report regarding this period observed that "civil society assembled around principles which were defined by the negative: ‘We do not want anybody without land, we do not want access to land which is restricted by income and we do not want a family sector confined to marginal areas’" (Devereux & Palmero, 1999).
When the Parliamentary Commissions were presented with the draft version of the legislation their main comments related to the concept of local communities and the ‘organisational’ forms that these would assume. The policy principle of the recognition of customary rights had thrown up the tricky problem of defining in some way the range of people who could hold such rights. The draft Land Law solved this problem through the introduction of a definition for a local community that is capable of broad interpretation.
The main element of this definition is that the rights holders can be a group of families and individuals living within a geographical area, with no further limitations or qualifications on membership of this group except that they should be "seek(ing) to safeguard (their) common interests through the protection of the land and associated resources". This broad definition enables the myriad forms of customary land rights to fall within the protective mechanisms offered by the law. There was no linkage made in the legislation between land rights and tribal, traditional or group allegiance despite political pressure at the time to the effect that ‘traditional leaders’ should be the recognised representatives of all community level land rights-holding entities. In addition, individually held tenure rights within the broader group rights are capable of being identified, agreed upon and registered.
The law does not, however, give any details on the organisational or juridical form that these groups would take on exercising the option of registering their rights and criticism was levelled at the draughters regarding the vagueness of the concept of ‘local community’. Despite these criticisms, the Land Law was passed in 1997 and work then focused on the mechanisms for community representation.
Regulations to the Land Law, revised during 1998, contain some important provisions that were designed to subject the existing land concession applications to the new legal processes being developed. Those who had lodged concession applications in terms of the 1987 regulations were required to indicate their intention to continue with these if they were still pending. A one-year deadline for this was introduced by the new regulations. Renewed concession applications would then be reviewed and adjudicated upon in terms of the new law and regulations (those applications not renewed before this deadline would be cancelled). The new regulations stipulated a mandatory formal consultation with the local community regarding the land occupation and use plans of the applicant.
The regulations also signalled that a Technical Annex was to be approved by the Ministry of Agriculture and Fisheries (which has since become the Ministry of Agriculture And Rural Development), in order to specify the requirements for the registration of community rights. This process became known as ‘delimitation’, rather than the term used for the registration of private land rights holdings, which is known as ‘demarcation’. The difference or similarity between these registration processes remains a contentious issue. According to the Land Commission report, after participating in three regional courses, different teams undertook over 20 pilot delimitation exercises throughout the country as a means of testing the proposed procedures. The findings of this pilot approach were discussed in two meetings, which found that the methodology was appropriate, and the Technical Annex was approved in 1999. The final content of the Technical Annex was a response to the criticism that had been made regarding the vagueness of the concept of a local community: instead of attempting to devise a single definition, the Technical Annex was a single, legally prescribed methodology, complete with pro forma documentation and setting out in detail the procedures to be followed in the delimitation of community land (Tanner, 2000).
The land reform programme in Mozambique has now reached a critical point in its development. The basis has been laid for the development of land administration systems that facilitate rural development and safeguard the rights and interests of the rural poor: policy objectives and legal instruments have been put in place to ensure that the customary rights of rural dwellers are safeguarded; the role of rural communities in the allocation and adjudication of land use rights, and the right to register customary use rights, are ensured by statute; simple and flexible methodologies have been designed that allow for the registration and recognition of rights to be rooted within customary knowledge and practise. Moreover, the policy is designed to encourage the development of negotiated partnerships between customary rights holders and the private sector, allowing communities to directly benefit from the use by third parties of customarily occupied land.
The challenge at this point is to translate these policy approaches and objectives into the kinds of systems and mechanisms that are most appropriate to the realisation of the potential benefits. In other words, to develop practical systems and procedures, capable of being implemented at scale throughout the land administration bureaucracy. This is a wide-ranging challenge and involves a number of different stakeholders, often with conflicting interests. It is not only the ‘devil in the detail’ that must be confronted where, for example, there is a need to overhaul land record systems, design new procedures for managing the cadastre and implement ‘new’ ways of recording ‘new’ rights. There must also be discussions and decisions about the ‘big picture’ issues, where, for example, there is a need to locate the issue of community representation concerning land issues within the broader mechanisms of interaction between the state and its citizens1 , or where the relationship between land and other resource use policies needs to be decided upon. The policy framework and related legislation have been put in place only recently and the necessary institutional framework for appropriate government regulatory services has not yet been developed.
The report by the PROAGRI Land Review Mission underlined the importance of the present period: completed in November 2000, the report stated that "the package for rural areas is already complete...it is essential that the now complete legal framework be moved forwards to a well-supported implementation phase". This is not to say that there have been no moves towards implementation of the new policies. Some donors in Mozambique have supported projects in the last few years that are designed to test out the new legislative mechanisms and assist the Government to develop an appropriate enabling environment and the sector-wide investment programme for agriculture and rural development, the PROAGRI, has always contained a land component. Through the work of the Land Commission, the national department responsible for land rights registration and mapping (DINAGECA) and its provincial representations and various NGOs, steps have been taken to develop the laws and policies into operating procedures and mechanisms.
Text Box 1: Issues discussed at the 1996 Land Law Conference
- the maintenance of all land as property of the State;
- the replacement of the terminology from the previous legislation, which classified land into agricultural and non-agricultural use purposes, with a classification that distinguished areas on the basis of whether rights could be obtained to the land or not;
- Issues related to groups of rights holders, and specifically the cases of women, local communities and foreigners;
- the involvement of traditional authorities and customary systems of land use;
- the transmission of rights to land and infrastructure, and the limitations to these;
- the requirement or not of a development plan and the enforcement of this stipulation;
- the notion of abandoned land and the consequences of this;
- the valuing of rights to land; and,
- the resolution of conflicts regarding rights to land.
[Source: National Land Commission, 1999]
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Text Box 2: Interest group positions at the 1996 Land Conference
- the management of land should be done at the local level and thus a national policy does not make sense;
- title deeds should immediately be issued to everybody;
- communities are the landowners and should be enabled to negotiate land ownership with the investors;
- land in the family sector should be demarcated in order to protect it;
- what is most important is to establish a free market in land; and,
- land should be privatised but private hoarding and speculation must be controlled.
[Source: Negrгo, 1998.]
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Footnotes:
- The implementation of Decree 15/2000, for example, which establishes a basis for the identification, recognition and remuneration of formal local community representatives (who will become members of the local organs of state), has gone ahead without any detailed examination of the relationship that these ‘representatives’ will have in respect to other community level representatives that may be established as a result of the land law. How the roles of community land committees, or the community representatives on local resource management councils (envisaged under the new Forestry and Wildlife Law), will intersect with those of state-recognised representatives remains unclear. The government approach to this, so far, seems to give precedence to the representatives recognised by the state (from implementation of Decree 15/2000) rather than those that are appointed by communities themselves as part of other processes (as part of a consultation on third party land use rights, arising from delimitations or appointed as a result of the establishment of local resource management councils).
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