Afghanistan

Land rights in crisis: Restoring tenure security in Afghanistan

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By Liz Alden Wiley
Executive Summary*

I. INTRODUCTION

Land tenure insecurity has many faces - from the returning refugee widow who is unable to wrest her husband's land from his family, to the community evicted by a land-hungry warlord, to the drought-defeated smallholder who has sold his last plot for food and cannot find a landlord willing to enter a sharecrop arrangement. It may also be a case of clan heads carving up local pasture for new cultivation, land that poorer villagers thought was theirs to share, that the government thought was its own to distribute, that visiting nomads thought was theirs to graze - and often have documents to "prove" it - documents that may conflict with others issued at different times, with the law, or with human rights and justice norms. At this point in time, multiple claims, each with its own historical legitimacy, may exist over the same land. The law, and the documents or testimony it generates, is plural, complex, uncertain, incomplete and currently unenforceable. At every turn, there is a need to rethink norms for a sustainable future while reconciling with the past.

Until recently, land tenure - the holding and transacting of land - has not been more than peripherally on Afghanistan's planning agenda. This is not surprising. The Afghanistan Transitional Administration (ATA) is new, is only just beginning to function as a government and has limited authority over the country. Though it is a marvel that any substantive land planning has taken place at all, what has been thought through is driven by the limited objective of helping foreign investors secure land. A more poverty-focused approach to reconstruction, within which land tenure conflicts are most visible, has been slow to emerge, which has meant that issues of land access and the concerns of the majority remain a low priority.

The new administration has also not been particularly well served by the assistance community in this area. Though a range of policy advisories have been issued and agrarian surveys conducted over the last year, they have failed to focus on basic land access, rights as a factor of production, recovery or conflict resolution. Structural analysis about the drivers of conflict and poverty has been limited. By failing to recognise the centrality of land rights to the peace and reconstruction process and by failing to provide the ATA with valuable lessons learned from experience in other contexts, the aid community has tended to reinforce the perception that land ownership problems are too complex, bewildering or sensitive to address at this time.

Unfortunately, such a risk-avoidance strategy is a-historical and imprudent, and may temporarily suppress chronic grievances. It fails to consider the role that conflict over space - and particularly rural space - has played in driving and sustaining the internal conflict in Afghanistan over the last quarter century. As a result, current approaches to land tenure matters tend to be superficial and ad hoc. The concern of the ATA is, however, very real. While caution is indisputably in order, it makes sense that the assistance community facilitate the ATA's efforts to understand and deal with the land rights crises that currently beset the nation. It is hoped that, sooner rather than later, this will be expressed in a comprehensive strategy, implemented with its own set of workable legal instruments and local level arrangements.

Four basic strategies will be helpful in shaping this strategy:

  • Adopting an incremental and learning by doing approach to the issues, to be able to move forward. Invoke support where it is needed (at the local level) to make practical progress and to establish workable new norms;

  • Recognising that land rights management is a cornerstone of social management in agrarian states. Dealing with land ownership issues will not only aid productive development, but will also open avenues through which wider concerns of governance, particularly inclusive, local-level governance, may be practically addressed;

  • Making sustainability a primary objective of restitution policies and action. This means that classical approaches to restoring order in land ownership should go beyond simply returning land to pre-war owners, as many aspects of that pattern of ownership remain contested;

  • Ensuring that the law upon which decisions of tenure are based is comprehensive and straightforward in its prescriptions, and transparent and consistent in its use. These are attributes that do not currently exist; and

  • Recognising that no top-down dictate, in the form of laws, reforms or enforcement will be lasting without local ownership/popular support. If there is a single, principle suggestion arising from this short review, it is that treatment of land ownership issues requires rigorous adherence to sound development process in general and the adoption of localised and participatory community-based approaches in particular.
Before discussing how such strategies might be achieved, some general background findings to the land tenure sector should be considered.

I. LAND OWNERSHIP

Characteristics

Data on rural land ownership is scanty, incomplete, out of date or structured in ways that are hard to compare. With such limitations in mind, the following observations on land ownership can be made:

While most of the rural population depends on arable agriculture, the amount of useable farmland is limited, comprising only 12 percent of the land area. Irrigated agriculture is extremely important to the rural economy, in the form of vineyards, and orchards and cereal farms. The greater productive area in the country is pastureland, which covers 45 percent of the total land area. This supports an immense livestock population owned by both settled farmers and semi-nomadic and nomadic populations. However, land tenure arrangements are least well developed in these areas and most subject to contention and even armed conflict.

Outright landlessness is a very real feature in Afghanistan. A significant body of people do not own farmland (the landless), or they own farms too small for survival (near-landless), yet together they provide a highly significant part of production, as sharecroppers, workers or tenants. While it cannot be confirmed that landlessness or near landlessness is rising, the signs are that this is the case.

Though the range of holding sizes is narrower than many other states in the region, ownership is highly skewed. Minorities at the upper end have traditionally owned disproportionate areas of total land. One recent survey finds that 2.2 percent own 19 percent of the total land area in 2002.

Regional differences of land distribution are so strong that national farm size averages are meaningless. For example, while "most" own their land in the mountainous east and northeast, landlords, sharecroppers and labourers are most common in the southern fertile plains around Kandahar.

Land holding in Afghanistan is not a simple question of owning or not owning. The most striking aspect of rural Afghan tenure is the high degree of uncertainty in land ownership, primarily in the sharecropping sector and the closely intertwined element of land mortgaging. This involves a web of relationships in which it is difficult to distinguish creditors/debtors from owners/sharecroppers, or to know precisely who is the legal or accepted right-holder over the property.

Land Tenure Administration

An unusually strong history of land ownership recordation exists in Afghanistan, dating back to land grants issued in the 1880s with documents relating to land transfer in the customary, religious/civil and state law land management sectors. The form of documentation is relatively consistent. In addition, a national land registration programme conducted between1965-1978, mapped and recorded 45 percent of arable farms into 5,502 registers. However, maintenance of these records has been limited.

No clear regime for managing land rights exists and by default many management functions have fallen to the courts, which also handle the bulk of land disputes. With instability and coercion by warlords over the last decade, land rights management and dispute resolution has lost credibility in many areas. Most rural Afghans regulate their land ownership relations customarily, without using officials or courts. Customary sector management offers a strong foundation, but is rife with practices that favour wealthier elites, men and dominant ethnic groups.

The Legal Framework for Landholding

Land rights in Afghanistan are governed by more than one legal regime, including customary law, civil law, Islamic law and state law. While important differences exist, there is also an unusual degree of commonality among these in their treatment of land rights.

Customary law (rawaj) This relates to how land is owned and transacted as established through community practice and adherence by members to group norms. Customary rules are rarely codified and appropriately change with time. Pashtunwali (Pashtun customary law) is one of the more elaborated operating laws, and dominates the norms in many areas. Shariat and custom often conjoin on land matters, except with respect to usury, women's land rights and common property rights. The former is more liberal - and generally less adhered to because of this.

Civil law (qanoon madani) The Civil Code is a written expression of mainly Islamic law principles and includes more than 1,000 directives relating to property. The Code was compiled in the 1970s building in large part on historical treatments of the Hanafi school of Islamic jurisprudence.

Religious law (Shariat or Shar'ia) in its original rules as laid down in the Koran and expressed in many scholarly treatises, may be directly applied when the issue is not covered in the Civil Code. Similarly, the Civil Code is only applied if the issue is not covered in state law. Land cases are officially dealt with in civil courts, which rule on the basis of state, civil and religious law, in uncertain mix and measure.

State law (statutory law or national law) This comprises both supreme law (see below) and sector law (i.e. agriculture, taxation, housing). It has been executed through statutes (qanoon), passed by Afghan kings and presidents in the form of decrees or edicts, and published in pamphlets and, since 1963, in an official gazette. Frequent regime changes have had a confusing effect on formal state law. Rather than sustaining existing laws, new regimes have tended to repeal previous laws and institute new ones, but in a very uneven manner. In practice, there is considerable continuity in the land sector from the statutes of 1965 to those of 2000. No single body of land tenure law exists, but land is significantly addressed by a number of Taliban edicts of 1999 and 2000. These are the law in force at this time, as they do not contradict the (broad) terms of the 1964 Constitution.

Constitutional law The supreme law, which has consistently included a limited set of declamations on the right of the state to appropriate property, the protection of private rights, the right to travel and settle freely, the definition of government land and the rights of foreigners to own land. The modern Afghan state has seen constitutional law promulgated in 1923, 1931, 1964, 1977, 1979, 1980, 1987 and 1990 (and a draft in 1992). The current constitution in force is that of 1964, which offers insufficient guidance on land rights. However, it is notable for its support against random foreclosure by creditors, a prominent concern of poorer rural Afghans, and a principle that does not seem to be widely applied.

Land Classes

In terms of tenure, the land area of Afghanistan falls within one or other of these classes:

Government land (amlaki dawlati) The definition of government land has been altered by each regime and still lacks clarity. First defined in the 1965 Land Survey and Statistics Law as "land registered as belonging to the government," this government land expanded to include wasteland, forests and then pastures through constitutional articles. These definitions were subsequently abandoned and the definition of government land is currently uncertain beyond those properties already registered and/or held as belonging to the state.

Public land (maraa) Land, under the control (not ownership) of the state, but held to be either owned by the nation as a whole, or by nature un-ownable (such as wasteland). However, the government has always acted as landlord and has, at times, made public land available for lease or sale. Maraa also includes land reserved for local community use. The lack of a clear boundary between national public land and local public land reflects weak tenure development and unresolved conflicts between state and customary notions of tenure.

Private land (amlaki shakhsi) Conceptually, private ownership is defined as individual ownership of discrete estates and therefore limited to farms, house plots, rather than group-owned property. In practice, a documented "individual" landholder often conceals shared ownership by a larger number of individuals - a family, clan or village. Conversely, rights to land owned by a family may be exercised by a single (male) head of household.

Communal land (mushtarak) Commons are non-farm properties including local open spaces, dry uplands, pasture and swamps, conventionally understood as owned by the community members jointly. In practice, khan families have superior rights. They are able to use these lands in ways that those without draught power for dry-land cultivation or livestock to pasture cannot. Disputes over commons are legion and growing, especially between seasonal pastoral and settled cultivator interests, both of which have different historical and customary claim.

Religious land (waqf) Held originally by religious institutions, much of this land is now under the control of the state as government land or public land, with the remainder held by local mosques for the common good. This land may not be bought or sold.

Distinctions among classes are uncertain, with overlapping interests between public and communal lands, private and communal lands, and government and public property. A main structural problem is the uneven acknowledgement of common rights in land as private property rights, a problem that encompasses competing interests over pasture.

II. LAND POLICY AND LAW

Formal land policy has only sporadically been declaimed over the years, and is still not in place today. Policy is discernible however both through the terms of state law and, more generally, in tenure-related strategies that have been adopted over the last century.

Tenure Strategies: 1880-2001

Four dominant strategies have been the following:

Pashtunisation policies that saw leader after leader empower loyal Pashtuns to colonise the territories of minority and potentially rebellious ethnic groups. This began with the efforts of King Abdur Rahman in the 1880s to secure the borders of the new state, using this means with brutal efficacy. This laid the foundation for ethnic land contestation in Hazarajat and in the north, conflict that has intensified over the last decade.

Settlement policies associated with large dam and irrigation developments during the reign of Zahir Shah (1933-1973), which routinely replaced local occupancy with selected settlers; often these "eligible applicants" were Pashtun nomads (Kuchi), who were to prove less than dedicated to the settled farming lifestyle, but who have retained substantial interests in many areas, often as creditors of heavily indebted tenants.

Recordation policies designed to clarify and order land ownership and to bring land relations under state control. This was undertaken by Zahir Shah in the 1960s and 1970s as a mass survey and registration programme, funded by USAID. Less than half of all farmers and farms were registered and not a single title deed was issued but a basis for ownership documentation was widely entrenched. The process also saw a massive expansion of government land, including the bringing of some 2.6 million hectares of pasture under state control.

Distributive reform designed to bring more equity to grossly inequitable land ownership. This began with President Daoud's moderate reforms during the 1970s that placed a ceiling on private landowning, required the compulsory sale of the excess to the state, and instituted progressive taxation on the basis of holdings' size. This was followed by a more extreme, well-meaning but brutally implemented reform by the People's Democratic Party of Afghanistan (PDPA) led by Presidents Taraki and Amin (1978-1979). This dramatically reduced the land ceiling, redistributed the excess without payment of compensation and cancelled standing debts of more than five years relating to mortgaging. The rebellion that ensued from these and concurrent radical educational reforms, led to Soviet invasion and occupation (1979-1989).

All four strategies were implemented in the service of state building and modernisation. All four failed in their objectives. Untangling the conflicts that resulted is a main task facing the current administration.

Key Drivers of Tenure Insecurity

The current situation of widespread insecurity of tenure appears to be driven by these main conditions:

A history of rural production that builds on deeply inequitable relations within the community with regard to access to and rights over land and water. Symptoms include crushing indebtedness, landlessness and, more recently, destitution, all of which carry abundant seeds for sustaining conflict. This is decreasingly being relieved by traditional social reciprocity, which shows signs of being in demise. The majority poor may decreasingly rely on the rich to keep them housed, fed or landed. Plans to increase agricultural productivity ignore the fact that most farmers are landless and without the resources to re-start farming.

Multiple and unresolved interests over the same land. This stems mainly from the inglorious history of translocation outlined above, which has generated increasingly violent ethnic land disputes. The appropriation of lands by warlords is a more recent (1990s) but equally unsettling phenomenon.

Failure to develop land ownership norms beyond the farm. This is a problem that is shared by many governments around the world and is only now beginning to see creative resolution. It refers to the fact that while most of Afghanistan is land suitable for pastoral rather than arable development, tenure norms are least well developed in the pastureland sector. A related shortfall has been the tendency of state builders to co-opt as much land as possible to state coffers, or at least to its control, which has directly affected customary forest and pastureland rights.

Continuing disorder that helps to sustain tenure insecurity in many rural areas. While this is most visible in the existence of an enormous number of displaced persons, well-settled communities are also affected. Uncontrolled poppy production, warlordism, land invasions and ethnic and intra-community disputes are all generating insecurity at a time when stability of occupancy is essential. The outstanding question is whether matters of land security may be tackled before peace and stability are restored. While in theory the answer may be no, in practice, sustained order is unlikely to be achieved without addressing land conflicts.

III. CHALLENGES

This study concludes that long years of misdirected policy have entrenched, rather than improved, deeply inequitable and often unjust land ownership relations among tribes, between agricultural and pastoral systems and among feudally-arranged classes of society. Attempts to remedy these have been poorly executed. Violence, insecurity, anarchy and land grabbing compound these problems. The question facing the new administration is whether to ignore disturbed land relations and hope that they will resolve themselves, or to deal with the issues directly. And if the latter, then how?

1. Putting land relations on the agenda. There are signs that both the ATA and the international community are recognising that disorder in land relations cannot be ignored if peace and stability - let alone socio-economic transformation - are to come about. It is both timely and necessary to formulate a more explicit and comprehensive strategic commitment to tackle land ownership matters in a manner that goes beyond ad hoc fire fighting of occasional or prominent land disputes.

2. Focusing on sound development processes. Commitment and action to develop a comprehensive land policy will be critical. The current constitution-making process offers a broad and inclusive environment through which this could be pursued. Production of a substantial chapter on land rights and administration would represent a major achievement contributing to nation building and reconciliation. This will require careful facilitation. At the same time, it will be helpful to promptly launch support for local-level land dispute resolution initiatives out of which important guiding new norms may be offered to national-level planning.

3. Identifying institutional responsibility. The building blocks of such decision-making are still to be put in place. No single ministry has taken on land tenure issues or offered a concrete institutional framework through which multi-sectoral tenure concerns may be addressed. What currently exists as different agendas between the executive and judiciary branches of government need integration into a single and consistent strategic vision as to how land rights should be ordered, governed and sustained.

4. Taking community-based approaches seriously. It is important that land policy development not be confined to the corridors of central government. Rather, it should be informed by practical efforts of land conflict resolution in strategically selected rural areas. This will allow the ATA to focus on priority disputes locally in situations where it cannot deal with such issues nationally, to enable the evolution of an inclusive and practical approach and to lay the foundation for local-level land governance systems. What is required at this stage is a process that avoids top-down approaches and instead promotes efforts that can be sustained at the periphery in the hands of ordinary Afghans, operating within local and community-level contexts.

5. Developing a sound legal basis for land rights management. The legal issues facing Afghanistan are immense and go beyond the difficulties the administration currently has in enforcing the (state) law that exists. What constitutes the law is itself a matter of debate. A main problem is the uncertainty of boundaries and roles among religious, civil, custom and state law. Clarification and coordination, if not total integration, are urgent. Even within religious law, there must be questions raised and addressed as to the legitimacy of limiting guidance to sources, such as Hanafi, not observed by all Afghans. While an initiative to improve state land law is underway, land law remains a loose compilation of provisions with vast gaps and loopholes. The scope of legal instruction upon which judges will, for example, rule on restitution disputes is insufficient to meet the demands of current circumstances. The development of a national land policy will guide the development of new legal provisions. Ideally, these will include a comprehensive and integrated basic new land law, which takes account of majority customary and religious directives that are consistent with constitutional principles. An absence of court reporting also poses problems. This has prevented the evolution of legal precedent on the one hand, and limits consistency among rulings, or the accountability and transparency of the courts, on the other. This is going to be particularly important in the upcoming work on the Special Land Court, mandated with hearing what will be thousands of land disputes relating mainly to land claim cases. Interest within the Ministry of Justice to adopt a fresh and more comprehensive approach to developing new law deserves immediate encouragement and practical support. Acting towards this specifically in the land tenure sector will be a manageable and concrete way forward.

6. Learning from international experience. Land tenure problems plague many other agrarian states and there is much to be learned from the growing body of land tenure reform underway in more than fifty countries. Many of these reforms directly address issues of similar concern to Afghanistan, such as how customary and statutory land tenure regimes may be integrated, how cheap, decentralised and sustainable tenure administration may be established at the community level, the proper role of the state in land administration and land ownership and the kind of norms that may be developed to support stable common property systems. Novel approaches to land dispute resolution, with a particular emphasis on non-court based dispute resolution, are also being developed and tested. Making such experience available to the ATA is an obvious responsibility of the assistance community. Lessons from Kosovo, Bosnia and East Timor may be particularly instructive for Afghanistan with respect to post-conflict restitution management. These experiences illustrate that the unravelling of what is an often ethnically discriminatory history is a messy but ultimately essential element of effective restitution. In the process, new administrations are forced to make fundamental decisions as to what constitutes "equity" and whose rights or interests are to be "more equal" than others.

7. Locating restitution within reconciliation. Matters of land restitution cannot be satisfactorily separated from the demands of reconstruction. This is a realisation that many post-conflict administrations arrive at belatedly and at a cost. Optimism that land interests may quickly be restored in accordance with a chosen dateline avoids the reality that many of these properties are subject to multiple claims, each with an historical or social legitimacy that cannot be dismissed by invoking the law. Unpacking rights, identifying "owners" as defined by a certain time period and declaring this the legal norm, may not be enough and may exacerbate contestation. There is both need and opportunity in Afghanistan to adopt a reconciliation approach. Practically, this needs to be implemented at the local level and on a case-by-case basis.

8. Clarifying tenure norms. A related issue is the need to clarify the distinction between local-public and national-public properties, particularly as they affect the interface of land rights of settled and mobile peoples. As in Afghanistan, many countries have seen local commons appropriated by national governments because they are perceived as un-owned or too broadly owned to be viewed as private property. Today, however, there is a declining emphasis in other countries on individualisation as the only route through which private property may be expressed. Two main results have been the provision of new tenure norms to allow for group-owned private property, and clearer and more formal arrangements to allow different (e.g. seasonal) interests in the same land to co-exist.

9. Keeping equity on the rural land agenda. How people order their land relations and the manner in which local and national governments provide regulatory guidance, is central to the governance of agrarian society. Failure to attend to the sound ordering of land relations and the fair distribution of arable land will impact adversely on rural livelihoods as a whole. The fact that drought has tied landlessness more tightly to destitution adds to the urgency for governance systems to address, rather than avoid, the situation.

10. Learning from the past. History does matter, not only in terms of the changing land relations inherent in modernisation and conflict, but also in terms of the crucial history of state intervention. The Afghan experience tells us that one critical lesson of this history needs to be learned: that the forced redistribution of land is unlikely to be a lasting solution and could contribute to war and instability, even where the beneficiaries are the majority. At the same time, matters of distribution and associated practices through which land is voluntarily or involuntarily transferred from the poor - such as through unfair land mortgaging and sharecropping regimes - are pressing concerns that need to be addressed. Adopting exploratory and more participatory and local decision-making on such matters will be necessary; law or top-down reform on its own, will be ineffective.

11. Equity for growth, not instead of growth. Within the civil administration, what is driving current planning is the determination to make land more easily and securely available to investors. While this is an an important objective, it presents too narrow a