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Chapter 1: decentralised land governanceiTable of ContentsContributorsiiAcknowledgementsiiiPrefaceivTribute to Tessa CousinsvIntroduction 1Chapter 1: Decentralised land governance 3Chapter 2: Botswana by Rick de Satgé 14Chapter 3: Madagascar by Karin Kleinbooi 48Chapter 4: Mozambique by Christopher Tanner 83Chapter 5: Lessons and reflections 99

iiDecentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueContributorsRick de Satgé has been involved for almost 20 yearsin the NGO sector in South Africa, Zimbabwe andBotswana. He has worked on the ground as a ruralfieldworker, living and working in remote rural areasand played a central role in the founding and managementof two NGOs and in the establishment of localand regional inter-sectoral learning networks. He iscurrently a development consultant and a partner inPhuhlisani Solutions, based in Cape Town and is anAssociate of the Institute for Poverty Land and AgrarianStudies (PLAAS) at the University of the Western Capein Cape Town, South Africa. He has been an independentconsultant for more than 15 years as a developmentspecialist in land, livelihoods and capacity development,with comprehensive experience in rural and urbandevelopment and adult learning .Karin Kleinbooi is a researcher at PLAAS and holds anMPhil in Land and Agrarian Studies at the University ofthe Western Cape. She has been involved in researchwork on existing and emerging land policy issues, farmlabour and dweller land reform and women’s landrights, and has monitored and evaluated land reformimplementation in South Africa.She co-ordinates learning that enables key practitionersand scholars in the land sector to share experiencesand derive policy-relevant lessons from practices,articulating the benefits and limitations of decentralisationin southern Africa, i.e. people-led (but statesupported)approaches to land reform in the SouthernAfrican Regional Land Programme funded by theAustrian Development Agency of which this case bookis a major output.Christopher Tanner is a FAO Senior Technical Advisoron Land and Natural Resources Policy, who currentlyworks in Mozambique in a programme to train communitylevel paralegals and local government officers inthe use of Mozambique’s progressive legal frameworkfor land and natural resources management.His work on land issues began with a PhD at CambridgeUniversity, researching childhood malnutritionand household reproduction in North-eastern Brazil.Since the early 1990s he has focused increasingly onland issues in Portuguese speaking African countries.After doing field research and rural development workin Mozambique, he was appointed to lead FAO supportto the Mozambican Inter-ministerial Commission toRevise Land Legislation in the mid-1990s and has sincebeen overseeing the development of a programmeto support implementation of the 1997 Land Law anda range of related legislation covering Environment,Forests and Wildlife, Territorial Planning, Tourism, etc.Through this programme, implemented by the Centrefor Juridical and Judicial Training (CFJJ) of the Ministryof Justice, he has been directly involved with severalprojects which have used the devolved managementand decentralising elements of the Mozambican policyand legal framework to promote an inclusive andparticipatory rural development process.

Chapter 1: decentralised land governanceiiiAcknowledgementsRuth Hall is a senior researcher at PLAAS and projectmanager of the Southern African Regional Land programme.She completed her doctoral dissertation, ThePolitics of Land Reform in Post-Apartheid South Africa,1990 – 2004: A shifting terrain of power, actors anddiscourses, at the University of Oxford. We would like tothank Ruth, who was an advisor on this project, for herimmensely generous and knowledgeable contributionsand detailed comments on the drafts over an extendedperiod.Professor Ben Cousins is the DST/NRF Chair in Poverty,Land and Agrarian Studies Institute for Poverty, Landand Agrarian Studies (PLAAS). His decades of experienceof land reform in Southern Africa and beyondgreatly enriched this project.Tessa Cousins, Phuhlisani Associate and rural communityexpert, played an instrumental role in the conceptualisationof the book and the development of the keyquestions that framed the case study research.PLAAS would like to thank all the people from Botswanaand Madagascar who participated in this projectand agreed to be interviewed. We also acknowledge thepeople whose experiences have been documented inthe Mozambican case study.PLAAS also thanks the following organisations:DITSHWANELO – The Botswana Centre for HumanRights – for support, contributions and assistanceduring the research of the Botswana case study; HARDI– Madagascar, the non-governmental organisationbased in Antananarivo, for field work and logisticalsupport; and AWARD – The Association for Water andRural Development in Mpumalanga Province - whoprovided organisational support to Tessa Cousins inconducting the South African case study in Craigieburnwhich due to her untimely death had to be omitted fromthis publication. The partnership and collaborationwith these organisations was an important feature ofthis initiative: to outline the nature and impacts ofpolicy processes. Their experiences of obstacles to, andinnovation in ‘land governance from below’ providedthe relevant understanding of the context in which landgovernance is decentralised.

ivDecentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiquePrefaceThe Southern Africa Programme on Land, managed byPLAAS and supported by the Austrian DevelopmentAgency (ADA), has sought to develop a learning culturethrough documenting land reform practices andexperience. This book examines the experience of threecountries in their attempts to decentralise the governancestructures and systems for recording, allocatingand managing land rights and reflects on the lessonslearnt.We started out with a team of threeresearchers• Karin Kleinbooi from PLAAS, who managed theproject and researched the Madagascar casestudy;• Rick de Satgé from Phuhlisani, who worked withthe staff of DITSHWANELO – The Botswana Centrefor Human Rights, to research the Botswana casestudy and think through lessons learnt;• Tessa Cousins from The Association for Water andRural Development (AWARD) in MpumalangaProvince, who started to research the case studyand develop a toolkit to assist with local processesof decentralised land governance.We had begun to develop a conceptual approach to thecomplex issues contained within the rubric of decentralisedland governance, and had started with fieldresearch at the different sites when Tessa was killed in aclimbing accident in Scotland on 31 May 2011. Her rolein the planning and thinking about this publication waspivotal. Her tragic death brought our work to a halt fora period as we tried to come to terms with this loss. Wehave felt Tessa’s absence keenly and it has inevitablydiminished what we have been able to achieve withouther. Sadly, the case study she was working on wasincomplete at the time of her death.We would like to thank Chris Tanner for coming to ourassistance at very short notice to provide a case studyfrom Mozambique and to ADA for their patience andunderstanding of the challenges we have faced incompleting this important work.

Chapter 1: decentralised land governancevTribute to Tessa CousinsTessa in discussion with a resident of CraigieburnIn her professional life Tessa was a listener and acreator of conversational thinking spaces that gavevoice to many different people and provided the impetusfor dialogue, and the interrogation of problems andpractices, which generated both practical solutions -and further questions.Knowing Tessa, many images of her come to mind. Forme, as a fellow facilitator and researcher it is the toolsof her trade: the emerging lines of enquiry and thekokis, the coloured cards, the matrices, the maps andideograms – the means to record thoughts and ideas,to ground concepts and to leverage different interpretationsand meanings.From the many deeply thought and felt tributes whichfamily, friends and co-workers have written and sharedsince her death, it is clear that Tessa has made a lastingimprint on many lives.We do not have to search hard to discover the patternsand trends that represent Tessa’s life. They are writlarge. As Robert Chambers, Tessa’s Participatory RuralAppraisal (PRA) mentor, has advised, we must takecomfort in her life, what she did, what she started andwho she influenced -and in this way, we can add to thelegacy that she leaves behind.Rick de SatgéSeptember 2011

viDecentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambique

Chapter 1: decentralised land governance1Photographer – Phides Mazhawidza, Zimbabwe Women’s Farmers AssociationINTRODUCTIONDecentralisation has been on the Southern African developmentagenda for a long time. It is a concept whichappears deceptively simple. The principle of subsidiarityholds that decision making about local developmentpriorities needs to take place as close to the peoplelocally involved as possible. Decision making about landaccess and resource allocation is a key component of abroader decentralisation agenda.However, on closer examination, discourses arounddecentralisation are complex. They combine preandpost colonial histories, changing developmenttrajectories, and understandings about tenure andgovernance systems. They are set against major shiftsin global and local balances of power and fast changingsocio-economic relations which further marginalise thepoor and deepen inequality.Goals of the bookThe purpose of this project was to develop an accessiblebook for policy makers and practitioners whichlocates selected country case studies within a broadertheoretical and practical discussion on decentralisedland governance in the context of increasing commercialisationof rural land.The book sets out to give voice to local people, landrights activists and decentralisation practitionersin Botswana, Madagascar and Mozambique and tostimulate collaborative conversations among different

2 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquesets of actors in the land sector in order to reflect onthe different approaches and practices of decentralisedland governance in the region.The three cases aim to:• contribute to a shared understanding of changinglocal country contexts;• identify emerging country trends, highlightingthe increasing competition for resources and theimplications for the rural poor;• examine the evolution of approaches to decentralisationand the roles of state and non- state actorsand institutions in the process;• explore gender differentiated impacts of decentralisedland governance initiatives; and• identify approaches which practically strengthenrural people’s rights and ensure that their voicesare heard in decision making process which impacton the changing use and management of land.Overall we seek to:• facilitate debate among rural communities and civilsociety organisations about how to best respondto their fast changing environments and engagein collective action to balance power relations andsecure their rights;• contribute to improving capabilities to supportcommunities affected by tenure insecurity anddeals involving land which communities dependupon for their livelihoods; and• provide space for reflection on practice.The book is divided into three sections:1. An introduction to decentralised land governance,which sets the scene, provides contextualisation,and presents a brief review of the different approachesto decentralisation and their respectiveinstitutional and operational frameworks.2. In depth country case study reviews.3. A reflection on the issues and trends arising fromthe different country experiences which can informan agenda for action.The three case studies are located against the backdropof changing land governance, tenure policy andlegislation in each country. The case studies examinehow power and authority over decision-making andresources or functions is distributed between central,regional and local levels of governance. They explorethe roles and perspectives of other actors such asnon-governmental bodies, traditional governanceinstitutions, user associations or village committees, theprivate sector and other organisations of civil society.Local voices identify lessons for policy and practice andhighlight advocacy actions required to secure the landrights of vulnerable people in poor communities.The cases collected in this book represent an importantresource for researchers, policymakers, land reformpractitioners and organisations working to strengthendemocratic and downwardly accountable governance ofland and natural resources.

Chapter 1: decentralised land governance3PLAAS Regional Workshop, Maputo. Photographer – Sabine Pallas, ILCCHAPTER 1: decentralisedland governanceby Rick de Satgé and Karin KleinbooiIntroductionCustomary and statutory land tenure systems still operateside by side throughout much of southern Africa.These dual systems have their roots in the colonialera and the land reforms in the last three decades inSouthern Africa, which were aimed at increasing landaccess through land redistribution and improving landtenure through formalising customary tenure.Despite decades of attempts to formalise land tenuresystems during both the colonial and independenceeras, just 1% of land in Africa is registered under theformal system (Commission for Africa 2005, 231).Evidently, the centralised, top down formalisation ofland is not working (Easterly 2008).Our focus is on land which is owned by the State and towhich citizens claim rights through diverse customarytenure systems. In such systems access and entitlementsare mediated by multiple policies and institutions.These land tenure and governance systems arehighly dynamic. Change is driven by relations of powerbetween different land users and has been shaped bymajor policy and institutional shifts over time.

4 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueSetting the sceneMounting pressure on land held undercustomary tenure systemsThe country case studies provide valuable indicatorsof how the tenure and land rights security of the pooris becoming increasingly precarious and subject topowerful forces within an increasingly globalisedeconomic system. Realignments in global resourceequations have contributed to a sharp spike of interestin arable land and natural and mineral resources byforeign corporations and governments. Resource richland held under customary tenure systems, whichuntil recently was deemed to be outside the economicmainstream, has acquired new value as a commodityand is increasingly being regarded as a strategicresource and potential source of wealth waiting to be‘unlocked’ by external investors. These tenure systemsare complex and have been influenced ‘by a centuryor more of contact and interference by governments’(Cotula et al., 2004: 2).The increasing commercial interest in opening up ‘newland’ for commercial production is driven by a complexarray of factors including:• the implications of the global peak oil scenario,coupled with growing concern about carbonemissions and climate change which has led toa massive expansion in land under sugar cane,maize and other crops destined for ethanol productionor bio fuel;• rapidly increasing global per capita consumption ofmeat and related demand for grain as animal feed;• concerns about national food security in countrieswith fast growing populations and inadequateagricultural land to meet domestic needs; and• rising global food prices.As agricultural land under customary tenure acquiresnew value, deals struck between foreign investors andpowerful local elites stand to radically alter rural landaccess and social relations. The political and economicimpetus driving these transactions threatens to fastoverwhelm the limited protections afforded by localtenure systems, which are often underpinned by weakland governance institutions and poorly supported bylaw.The global expansion of land cultivated for bio fuelproduction and non- food agricultural commoditieshas been significant in the last decade. Deals of thisnature involve long term leasing of large tracts of publicor communal land by foreign, regional and domesticcompanies or governments. An additional, but separatecategory (with a much longer history) is mining, asthis fundamentally alters existing land use and quicklysweeps aside those who had prior rights to the land.The acquisition of land for expanded commercialagricultural production in Southern Africa has involvedinvestors from the Gulf, South Korea, India, China andother countries who often enter into partnership withlocal elites. This can represent a major threat to thelivelihoods of poor local land users, while simultaneouslyproviding enormous opportunities to those whoare better off. The scale of some of these land deals isenormous. One of the contributory factors to the recentpolitical turmoil in Madagascar was the government’sdecision to lease 1.3 million ha, approximately half thecountry’s arable land, to Daewoo Logistics to growmaize and palm oil for export to Korea.It is often claimed that the land earmarked for suchdeals is ‘vacant’ or unutilised. But this has been challengedby analysts who argue that ‘existing land usesand claims go unrecognised because land users aremarginalised from formal land rights and access to thelaw and institutions’ (Cotula et al., 2009: 6).While there was initially some optimism about thepotential for bio fuels to ‘revitalise land use and livelihoodsin rural areas’, this quickly gave way to concernsabout the impact of investment in bio fuels on the landholdings of the poor, particularly in conditions whereland tenure was insecure and not recognised in law,which would result in ‘poorer groups losing access tothe land on which they depend’ (Cotula et al., 2008: 2,von Braun and Meinzen-Dick, 2009).

Chapter 1: decentralised land governance5Even where policies, laws and institutions are in placeto protect the rights of local land users, these type of investmentsinvolve ‘strong power asymmetries’ and ‘theyare likely to achieve little if they are not accompaniedby sustained investment in building people’s capacitiesto claim and secure their rights’ (Cotula et al., 2008:4). Large-scale land allocations for the developmentof monocrop estates contribute to the dissolution ofexisting rural social bonds and in worst case scenarios,can lead to displacement of entire communities.A rapidly changing contextAny discussion of decentralised land governance alsohas to take into account how members of rural householdsare increasingly dispersed – many migrate to thecities and others move across borders and continents.This increasing social fragmentation, movement ofpeople and changing household composition hasmajor implications for rural livelihoods, land uses andresource management and involves complex flowsof people, cash and goods. The precarious nature ofthe livelihoods of the urban and rural poor results ina dynamic relationship between town and countrycharacterised by ‘circular migration of people andmovement of capital between rural and urban areas’(Whande, 2009: 2).The rate of urbanisation taking place in Africa iscurrently the highest in the world. Current projectionsare that by 2050, the continent will have an urbanpopulation of 1.2 billion, accommodating nearly aquarter of the world’s urban dwellers (United NationsHuman Settlements Programme, 2008: xi). But in mostinstances, this urbanisation is accompanied by limiteddevelopment, taking place against the backdrop ofa ‘weak agricultural sector; poor national economicperformance, the absence of secondary cities... leadingto the growth of megacities with poor economic bases’(Cheru, 2005: 4).Those who remain in the countryside, as well as manyof the poor who have migrated to the cities, continue todepend on access to land and natural resources whichplay an important role in their livelihood strategies. Thisland is also used to grow the food required to feed thepopulations in fast expanding urban centres. Rural peoplerequire secure access to land for housing, croppingand grazing. Rural land also represents a key retirementasset for many who have gone in search of work andlivelihood opportunities in the cities. These factors andrelationships underscore the importance of rural landas an essential component of nation social safety nets,as well as local and national food security.Decentralisation and land governanceWhile foreign interest in agricultural land grows, manyforeign donor agencies are taking a renewed interest infunding decentralisation initiatives, ostensibly designedto strengthen local governance and land rights managementin African countries.In order to understand and compare contemporaryinitiatives and approaches to decentralisation, theyneed to be located within their respective historicalcontexts. The relationship between states, internationalmultilateral agencies and rural land users on the commonshas undergone a number of important transitionssince the 1960s when decolonisation started to gainmomentum in Southern Africa. Within colonial andpost colonial states there is a long history of antipathyto customary tenure systems. For a long time both thesystems and the ‘traditional’ leaders and institutionswhich administered them were regarded as ‘backward’,‘feudal’ and a brake on investment, modernisation andagricultural development.In the immediate post colonial period, some newlyelected governments sought to implement widereaching measures to fundamentally change theway in which land was held, allocated and governed(Economic Commission for Africa, 2004), while others‘simply re-entrenched and sometimes expanded, thescope of colonial land policy and law’ (Okoth-Ogendo,1999: 3). How to understand and address the legaciesof these ‘bifurcated systems’ has remained a massivechallenge. Large questions remain about the legitimacyof hereditary leaders in the countryside and about whatauthority and role they should have in a democraticsociety.

6 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueAs table 1 highlights, decentralisation initiatives have along history in Africa. Decentralisation encompasses anumber of different, but related concepts and approaches(Meinzen-Dick et al., 2007). The differenttypes of decentralisation have been shaped by political,ideological and development shifts in the agendas ofboth states and donors in recent decades (Larson andRibot 2005).The history sketched above highlights the slipperynature of the concept of decentralisation, and of itsdeployment to serve diverse agendas ranging fromincreased state control to the promotion of democratisationand downward accountability.Defining decentralisationThe European Commission observes that there is nouniversally agreed definition of ‘decentralisation’ andthat ‘one risks getting lost in a jungle of expressionsand terms’ (European Commission, 2007: xi).From the perspective of this book, decentralisationrefers to the redistribution of power and authority overdecision-making and land and resource managementfunctions between central, regional and local levelsof governance and other actors, including traditionalinstitutions, user associations or village committees,together with other organisations of civil society and theprivate sector.In its broadest form, decentralisation seeks to changerelations of governance between central governmentagencies and legitimate, democratic and downwardlyaccountable local institutions to enable greater participationby local land users in determining decisions overresources; these include the responsibility for planning,management and allocation of such resources (UNDP,2002a).Institutional co-responsibility for governance betweenformal and informal, official and non-official, and stateand non-state institutions at the central, regional andlocal level, creates a platform for more effective decisionsby ‘the lowest level or most local level of authoritycompetent to deal with such matters’ (Agrawal andRibot, 1999). Hence decentralisation involves delegatingdecision-making authority away from a central authorityto local authorities - whether public, private, communityor traditional - who are presumed to have better accessto information and to be more accountable to localBox 1: Forms of decentralisationPolitical decentralisation refers to situations where political power and authority is transferred to subnationallevels, such as elected village councils and state level bodies.Fiscal decentralisation involves some level of resource reallocation to allow local government to functionproperly, with arrangements for resource allocation usually negotiated between local and central authorities.Administrative decentralisation involves the transfer of decision making authority, resources andresponsibilities for the delivery of selected public services from the central government to other lower levelsof government, agencies, and field offices of central government line agencies.Divestment involves a transfer of responsibilities from government to entities outside the sphere ofgovernment and is often regarded as the privatisation of planning and administrative responsibilities.This transfer can take different forms, including ‘contracting out’ or ‘public-private partnership withcommunities, NGOs, or private business.Source: UNDP 2000; MacLean, 2003.

Chapter 1: decentralised land governance7Table 1: History of decentralisation initiatives in AfricaPeriod Decentralisation approaches Land tenure and governancePre 1945 Those countries without settler populationswere governed through systems of ‘indirectrule’ which represented ‘rule by a few colonialofficials with the aid of the most complianttraditional rulers’ where local administrationcomprised a native court system, a local tax anda treasury; (Olowu, 2001: 4).Customary tenure was deemed ‘to lacksecurity of title and hence to fail toprovide incentives for investment andmodernisation’ (Peters, 2004: 271)Phase 1:1945 – early1960’sA post war shift by colonial administrations inAnglophone and Francophone Africa to developlocal government structures which increasinglyinvolved elected local councils that started to assumeresponsibility for local service delivery – aperiod which has been described as ‘the goldenage of local government in Africa’(Hicks, 1961).The perceived lack of tenure security andrecognition of individual rights led somecountries to promote individual or familytitling.Phase 2: Early1960s – late1970sThe post independence period was dominated byCold War geo-politics which saw the majority ofnewly independent states embark on processesto centralise planning and political power(Hicks,1961, Mawhood, 1983).Many countries adopted a socialist ideology andsingle party political systems, which ‘tried toforge local administrations that were essentiallyinstruments of control within the framework of aone party or military state’ (Olowu, 2001: 5).Mawhood (1983: 8) highlights how a ‘deconcentratedadministration was left in charge of thelocality similar to but weaker than the colonialone.’Post independent states were hit hard by aglobal economic crisis, driven first by banklending on the back of vast oil revenues, followedby a collapse in primary commodity prices andrising interest rates which created a massivedebt crisis. The IMF and World Bank respondedwith structural adjustment programmes whichenforced economic and political liberalisation.In many countries there was a post independencebacklash against customaryinstitutions. ‘In the years after independence,socialist regimes in Tanzania,Ethiopia, Burkina Faso and Mozambiquecondemned ‘traditional’ and ‘customary’organization and law as ‘feudal’’(Peters,2004: 273).At the same the World Bank argued thatcustomary systems did not provide thenecessary security to ensure agriculturalinvestment and productive use of land(ibid). Promotion of individual propertyrights through titling programmescontinued.

8 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiquePhase 3: Late1970s – late1980sStructural Adjustment Programmes (SAPs)enforced state spending cuts and encourageddecentralisation ‘to reduce central and localgovernment expenditures and size’ (Olowu, 2001:8).Reduced expenditure on public services droveup poverty.Decentralisation was associated with a newfocus on districts and district planning.While there was a continued push toformalise property rights systems accompaniedby ‘the possible individualisation’of common property resources (Boone,1998: 2), new research highlights thatcontrary to received wisdom, customarytenure per se, did not prevent investmentand that individual/family rights wereadequately catered for within thesesystems.This research also illustrates how earliertitling programmes ‘encouraged speculationin land by outsiders’ and oftendisplaced the people they were intendedto protect (Peters, 2004: 274).Phase 4:1990sThe fall of the Berlin Wall in 1989 signalled theend of the Cold War and rapid globalization ofcapitalist market systems.Decentralisation initiatives reflected a newimpetus towards ‘democratic decentralisation’as a key component of ‘good governance’programmes.However there is increasing recognition of howdecentralisation was also a ‘political mechanismby ruling groups to neutralise, contain or seekcompromises with regional elites’ (Crooke andManor 1994 in Olowu 2001: 11).World Bank and donor agencies revisetheir negative thinking about customarytenure which is now recast as adaptiveand inclusive (Deininger, 2003).This is accompanied by a revalorisationof the ‘traditional’ and the local.New approaches encourage the identificationof local solutions to secure landaccess and rights.However this revised approach frequentlyoverlooks the new alignment of forcesbetween international and local elites andthe global moves to secure control overproductive land and natural resources.Increasing commercialisation of productionand alienation of land ‘which usuallyoccurs with the collaboration of leadersat community level’ (Amanor, 1999: 19).

Chapter 1: decentralised land governance9Phase 5: 2000to the presentThe European Commission (EC) observes that‘whether by own choice or as a result of externalpressures, the large majority of third countriesare currently involved in some sort of decentralisationwith varying degrees of commitment andsuccess’ (European Commission, 2007: x).The EC argues that the new reform agendafocuses on (i) devolution of power to electedlocal governments as a distinct set of state actors;(ii) local governance (based on principles ofparticipation, transparency and accountability);(iii) a new paradigm of local economic development;(iv) a rediscovery of the importance ofterritorial (regional) planning; and (v) the overallmodernisation of the state (ibid)Rising inequality and differential accessto land and resources.Increasing tendency for state institutions,including those regulating access toland, to serve personal agendas of powerfuland well connected people.populations. Borras and Franco (2009) emphasise thatit is the institutional arrangements from above (governmentaction and policy) that influence what happensfrom below (autonomy and capacity).In practice the nature of this redistribution variesconsiderably, as shown in the different forms andprocesses of decentralisation summarised in the boxesbelow.While some governments are increasingly transferringfunctions to local institutions, others maintainhierarchical accountability with deconcentration ofresponsibility and authority to regions, provinces ordistricts. However the various types and forms ofdecentralisation often occur simultaneously, followupon one another, or are combined. Decentralisationvaries in the quantity and the combinations of function,responsibility, resources, and administrative, politicaland fiscal autonomy that are vertically transferred toeither regional, district, municipal governments, orother actors (MacLean, 2003).Since the 1990s, a number of countries acrossSouthern Africa have initiated reviews of land policiesand legislation, introduced new approaches toland administration and embarked on institutionalreform towards greater devolution. Increasingly, thediscourses on land management in the sub-region haveemphasised decentralisation to the local level in orderto address governance problems raised by tensionsbetween state laws and institutions, on the one hand,and ‘customary’ rules and practices, on the other.Decentralised land governance therefore involves aprocess of negotiating and restructuring power relationshipsbetween local people and the state regardingaccess to, control over, and use of land resources. Thepresumption is that local land tenure institutions havea greater sensitivity to local circumstances and arebetter able to respond to local land needs because theyare nearer to local communities and have mandatedresponsibility, and accountability to the whole localpopulation (Agrawal and Ribot 1999).Democracy, participation andaccountabilityThe effectiveness of decentralisation hinges on threelinked and strongly associated issues: democracy,participation and accountability. Democratic decentralisationand community participation often stand at

10 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquethe centre of an agenda of good governance and canbe defined as the transfer of powers to elected localauthorities to enable effective participation of localcommunities in decision-making (Ribot and Larson2005; Ribot, 2004). Truly democratic institutions are alsoaccountable to their electorate. Local institutions maybe held downwardly accountable to their constituenciesthrough genuine participation of local populations(Ribot, 2004).One of the strongest arguments in favour of decentralisationis that it will increase democracy and resultin increased participation in civil society activities, aspeople respond to opportunities that enable them tomake decisions that affect their lives. However the issueis whether or not democratic decentralisation leads inpractice to genuine participation of the poor. On theone hand, there are numerous critiques of participation(Ranhema, 1993, Cooke and Kathari, 2001, Slocum etal., 1998) which highlight how the potentially insurgentnature of the concept has been domesticated and mainstreamed.These argue that concepts like ‘communityparticipation’ and ‘empowerment’ have degeneratedinto de-politicised ’tools of the trade for governmentsand establishments such as the World Bank’ (Miraftab,2004 : 239) On the other hand, the debate has oftenoverlooked the diverse ways in which local people, andin particular marginalised citizens, use the opportunitiesprovided by democratic decentralisation to engagelocal authorities and demand accountability (Dauda,2006). Clearly, we need a more critical perspective onhow ‘community participation’ unfolds under democraticdecentralisation, and why in some cases, it hasproved to be detrimental to marginalised groups andparticularly to women and in others, has strengthenedtheir access to resources.In many rural areas where levels of education are lowand civil society organisations are weak and poorly organised,there is a strong risk that transfers of authorityBox 2: Processes in decentralisation- Devolution is generally considered the broadest form of decentralisation and is often referred to aspolitical decentralisation, or democratic decentralisation. It involves the full transfer of responsibility,decision-making and resources to an autonomous, local-level public authority that is politically andoperationally controlled by locally elected officials (lower levels of government). In a devolved system,local governments have some degree of political autonomy that is substantially outside direct centralgovernment control, yet remains subject to general central policies and laws (USAID 2000; MacLean2003).Deconcentration and delegation are considered to be two types of administrative decentralisation(Maclean 2003):- Deconcentration is the most limited form of decentralisation and is sometimes the first step in a decentralisationprocess. It involves the redistribution of decision-making authority and responsibility overpolicy implementation from one level of government to another – i.e. local units of centralised agencies.These structures do not act independently, and central government retains control over resources.Hierarchical systems of accountability from local to central government remain intact (Litvack et al1998; Gregerson et al 2004).- Delegation involves transferring responsibilities and authority to organisations that are accountable tothe central government but are not totally controlled by it – i.e. semi-autonomous authorities.

Chapter 1: decentralised land governance11and resources may lead to an abuse of power andincreased vulnerability or marginalisation of individualsor groups (Ouedraogo, 2005; Agrawal and Ribot 1999).In situations where power is shared, conflicts can arisebetween local and national interests, whether it isbetween government structures or between governmentand other actors such as traditional authorities. Thedanger that each will act in their own narrow interestsis then all the greater, and how ‘democratic’ the governancestructure really is, then becomes questionable.How has decentralised land reformworked in the region?Case studies in the southern African region illustratethe complex and dynamic process of decentralisationin land governance. Policy reforms in countries suchas Botswana and Tanzania (where land administrationis supposed to be carried out by autonomous institutions),suggest that decentralisation has the potentialto improve land access and security of tenure for thepoor and to increase gender equity in land rights.Practical experience, however, suggests that enormouschallenges exist around creating local capacity,allocating adequate resources, preventing elite captureand exclusion, and overcoming the reluctance ofcentral government to transfer real authority (Wily,2003). Other countries like Madagascar, South Africa,Swaziland, Zimbabwe and Lesotho are moving towardsgreater devolution of powers to give effect to local landgovernance, but concerns are often expressed aboutthe capacity of local institutions to fulfil these functionseffectively.Introducing the case studiesThe three countries selected as case studies have verydifferent histories and experiences.BotswanaWhen Botswana gained independence from Britain in1966 after a peaceful transition from colonial rule, it wasone of the poorest countries in the world. However, thediscovery and mining of diamonds provided a streamof revenue which has helped the economy to growand diversify, enabling Botswana to achieve the statusof a middle income country. However this economicgrowth has also been shadowed by rising inequality.This inequality has also become a feature characterisingaccess to, and management of land and naturalresources. Botswana has experienced uninterrupteddemocratic rule, albeit by the same political party, withde facto power held by a small elite. A decision soonafter Independence led to the establishment of LandBoards as local land management bodies.The case provides a history of land and agriculturalpolicy and a critical analysis of the Land Boards andtheir effectiveness as institutions for decentralised landgovernance. The case focuses on the Chobe District,where people occupy portions of land which aresandwiched between three protected areas: the ChobeNational Park, Chobe Forest Reserve and the floodplainsof the Chobe River. It examines key issues impactingon local land governance and land rights managementfrom a variety of different perspectives and draws outkey lessons from the Botswana experience.MadagascarMadagascar has experienced a complex and turbulenthistory, combining resistance and accommodation toFrench rule prior to independence in 1960. Madagascarhas experienced volatile post colonial politics, includingsocialist policies and economic nationalisation, governmentstoppled by military coups, a period of structuraladjustment, and large political swings. The most recentpolitical crisis in 2009 saw President Ravalomanana toppledby troops loyal to Andry Rajoelina, who cancelleda deal which had been negotiated to lease 1.3 millionhectares on which to grow maize and establish palm oilplantations.In March 2004, the Ministry of Agriculture, Livestockand Fisheries initiated the National Land Programme,referred to as the Programme National Foncier (PNF),as the main framework for improving land managementin the country. This led to the establishment oflocal land offices. The case provides a background onMadagascan land governance and decentralisationpolicies, and profiles two rural communes, examiningthe decentralised land governance system in action.

12 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueMozambiqueMozambique experienced a long history of Portuguesecolonial occupation and was a major slave tradingcentre in the 18th and 19th Centuries. The Portugueseinitially lacked the resources to run its colony andleased out large portions of the territory to commercialtrading ventures before assuming direct rule in 1932.The Mozambican liberation movement FRELIMOundertook an armed struggle to free Mozambiquefrom colonial rule, which was achieved in 1975, andto establish a socialist republic. Within a short timeafter independence, the country was caught up in anexternally sponsored conflict which escalated into afull scale civil war, displacing an estimated 6.5 millionpeople. In 1989, following the collapse of the Sovietbloc, Mozambique adopted a multiparty political systemthrough which FRELIMO has been returned to governmentin every election held since then.In 1995 Mozambique developed a new land policy,followed by a Land Law in 1997 and Land Regulationsin 1999. The country put in a place a policy and strategyfor bio fuels in 2009, an indicator of mounting foreigninterest in land deals.The case highlights how the current market andpolitical context tends to favour a national elite inpartnership with foreign interests seeking to invest in‘unused’ land in a setting where there is a progressiveland law but weak institutional capacity for effectivedecentralised land governance.ReferencesAGRAWAL A and RIBOT JC. 1999. ‘Accountability inDecentralization: A framework with South Asianand West African cases,’ Journal of DevelopingAreas.Volume 3, p.473–502.AGRAWAL A and RIBOT JC. 2000. ‘Analyzing Decentralisation:A Framework with South Asian and WestAfrican Environmental Cases,’ World ResourceInstitute (Series: Environmental Governance inAfrica).AMANOR, K. S. 1999. ‘Global Restructuring and LandRights in Ghana: Forest Food Chains, Timber andRural Livelihoods Research Report,’108. UppsalaNordiska Afrikainstitutet.BOONE, C. 1998. ‘State building in the African countryside:Structure and politics at the grassroots,’Journal of Development Studies, 34, 1.BORRAS, Saturnino Jr. and FRANCO J C. (2010).‘Contemporary Discourses in and Contestationsaround Pro-Poor Land Policies and Land Governance,’Journal of Agrarian Change 10(1). Articlefirst published online: 24 DEC 2009CHERU, F. 2005. Globalisation and uneven urbanisationin Africa: the limits to effective urban governance[Online]. California: UCLA, accessed on 2 September2011 at: http://www.international.ucla.edu/media/files/57.pdf.COTULA, L., DYER, N. & VERMEULEN, S. 2008. Fuellingexclusion: The biofuels boom and poor people’saccess to land [Online]. Rome: IIED and FAO,accessed on 2 September 2011 at: http://pubs.iied.org/pdfs/12551IIED.pdf.COTULA, L., TOULMIN, C. & HESSE, C. 2004. Landtenure and administration in Africa: Lessons ofexperience and emerging issues [Online]. London:IIED and FAO, accessed on 1 September 2011 at:http://pubs.iied.org/pdfs/9305IIED.pdf.COTULA, L., VERMEULEN, S., LEONARD, R. & KEELY,J. 2009. Land grab or development opportunity?Agricultural investment and international landdeals in Africa [Online]. Rome: FAO, IEED andIFAD, accessed on 2 September 2011 at: ftp://ftp.fao.org/docrep/fao/011/ak241e/ak241e.pdf.DAUDA, CL. 2006. ‘Democracy and Decentralisation:Local Politics, Marginalisation and PoliticalAccountability in Uganda and South Africa,’ PublicAdministration and Development. Volume 26, Issue4, p.291-302.DE SATGÉ, R., HOLLOWAY, A., MULLINS, D.,NCHABALENG, L. & WARD, P. 2002. Learning aboutlivelihoods: Insights from southern Africa, CapeTown: Periperi Publications and Oxfam Publishing.

Chapter 1: decentralised land governance13GREGERSEN H, CONTRERAS-HERMOSILLA A, WHITEA. and PHILLIPS L. 2004. Forest Governance inFederal Systems: An Overview of Experiences andLessons. Forest Trends, Washington, DC.HICKS, K. 1961. Development from Below: LocalGovernment and Finance in Developing Countriesof the Commonwealth, Oxford, Clarendon Press.LITVACK, J., AHMAD, J. AND BIRD, R. 1998. Rethinkingdecentralisation in developing countries. SectorStudies Series. Washington: The World Bank.MACLEAN M. 2003. Developing a Research Agenda onthe Gender Dimensions of Decentralisation. IDRCGender Unit Research Competition.MAWHOOD, P. 1983. Local government in the ThirdWorld. Chichester: Wiley.MIRAFTAB, F. 2004. ‘Making Neo-liberal Governance:The Disempowering Work of Empowerment,’International Planning Studies, 9, 239-259.O’LAUGHLIN, B. 2000. ‘Class and the customary: theambiguous legacy of the Indigenato in Mozambique,’African Affairs, 99, 5-42.OLOWU, D. 2001. Decentralization Policies andPractices under Structural Adjustment andDemocratization in Africa [Online]. Geneva: UnitedNations Research Institute for Social Development,accessed on 2 September 2011 at: http://unrisd.org/unrisd/website/document.nsf/ab82a6805797760f80256b4f005da1ab/543ffcd9808693fd80256b5e003b4e1e/$FILE/olowu.pdf.OUEDRAOGO H MG. 2005. Decentralization: AnEnabling Policy for Local Land Issues, available at:http://www.capri.cgiar.orgPETERS, P. E. 2004. ‘Inequality and social conflict overland in Africa,’ Journal of Agrarian Change, 4,269-314.RIBOT JC. 2004. Waiting for democracy: The Politicsof Choice in Natural Resource Decentralisation.World Resource Institute. Washington.SLOCUM, R., WICHHART, L., ROCHELEAU, D. &THOMAS-SLAYTER, B. (eds.) 1998. Power, Processand Participation - Tools for Change. London:Intermediate Technology Publications.UNDP. 2002a. A Global Analysis of UNDP Supportto Decentralisation and Local Governance Programmes.Institute Development Group, Bureau forDevelopment Policy, UNDP. http://www.undp.org/governanceUNITED NATIONS HUMAN SETTLEMENTSPROGRAMME 2008. State of the World’s Cities- 2008/2009: Harmonious cities. Nairobi:UN-HABITAT.USAID. 2000. Decentralization and Democratic LocalGovernance Programming Handbook. Centerfor Democracy and Governance U.S. Agency forInternational Development. Technical PublicationSeries. Washington, DC.VON BRAUN, J. & MEINZEN-DICK, R. 2009. ‘“Land grabbing”by foreign investors in developing countries:Risks and opportunities,’ IFPRI Policy Brief.WHANDE, W. 2009. Challenges to rural land uses andresource management: Rural —urban migrationpatterns and networks in Southern Africa [Online].Cologne, accessed on 1 September 2011 at: http://www.raumplanung.tu-dortmund.de/rel/typo3/fileadmin/download/Conference/programme/Whande_Challenges%20for%20rural%20land%20use%20and%20resource%20%20management_16.09.09.pdf.WILY L. 2003. Governance and land relations. A reviewof decentralisation and management in Africa.London: IIED.RIBOT JC and LARSON AM. 2005. Democratic Decentralisationthrough a Natural Resource Lens.London: Routledge.

14 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueCHAPTER 2: Botswanaby Rick de SatgéIntroductionWhen Botswana gained independence from Britain in1966, it was one of the poorest countries in the worldwith less than 5 kilometres of tarred roads and justthree secondary schools (Clover, 2003). The discoveryand mining of diamonds the following year provideda stream of revenue which has enabled the economyto grow and diversify, enabling Botswana to achievethe status of a middle income country. However, thiseconomic growth has also been shadowed by risinginequality. Access to land and particularly key rangelandresources is increasingly the preserve of large andwell-connected livestock farmers. This is despite policyand legislative commitments which guarantee citizensthe right to land in tribal areas, which have beenexpanded from 49% at independence to 71% in 2008(White, 2009).This assessment of decentralised land governance inBotswana is divided as follows:• Sections 1 and 2 provide an overview of changingland policy in Botswana with a particularfocus on resource tenure and decentralised landgovernance.• Section 3 examines the situation in Chobe Districtwhere tribal land is allocated by the Chobe LandBoard and where DITSHWANELO, the BotswanaCentre for Human Rights runs a land rightsprogramme, with case studies in Section 4.

Chapter 2: Botswana15• Sections 5 and 6 summarise key issues andlessons for decentralised land management whichemerge from the Botswana experience.• Section 7 provides concluding remarks.Land policy in pre-independentBotswanaDuring the pre-colonial era, Tswana polities known asmorafe, or chiefdoms were presided over by hereditarydikgosi. The morafe were divided into wards administeredby a ward head appointed by the kgosi (Ngcongco,1989). Tswana society was socially stratified in a numberof different ways. Digkosi accumulated cattle and ‘lentthem out’ to ‘commoners’ through the mafisa system(people without cattle providing herding labour to thosewith large herds in exchange for benefits such as milkand some calves), which commentators argue enabledthem to ‘create a client class’ (Datta and Murray, 1989:60).The morafe also incorporated a number of minority andsubject groups including the Basarwa, the Bakgalagadiand Bayei and the Kalanga. The mafisa system alsoplayed an important role in their incorporation but wasunable to erase the deep social and economic differentiationwhich persists in different forms today.The British established the Bechuanaland Protectoratein 1885 and set about moulding the morafe into‘tribal’ reserves and the dikgosi into ‘chiefs’, mirroringpolicies of indirect rule practised elsewhere in Africa(Mamdani, 1996). While the British administration keptpre-colonial governance structures largely intact in theearly period of the Protectorate, a number of changeswere introduced through the process of colonialincorporation.The colonial era created new means of accumulationfor chiefs who were entitled to take ‘10 percent commissionon the hut taxes collected for the administration’(Peters, 1994: 38).This enabled them to diversify theirincome streams, while remaining the largest cattleowners. At the same time the spread of educationand the creation of opportunities in the administrativestructures of the colonial state created a new modernisingelite which provided the foundation for subsequentchallenges to chiefly rule and colonial control.People were able to graze their stock on the commons,but the land overseer appointed by the Chief played arole in managing the grazing land, in consultation withthe land users. For example the land overseer ‘mightsuggest that in times of drought people with biggerherds should move somewhere else. And they mightconsult with neighbouring land overseers to coordinatethis move’ (ibid).Before the 1930s, the extent of the grazing range wasconfined to those areas with seasonal surface water,or where the water table was high and wells could beHistorical land governance in BotswanaIn both the precolonial and colonial periods rights in tribal land were vested in the Chief who had both theright and the obligation to allocate land to their tribesmen. There is in customary law a right of avail. You havea right to a share of the tribal land. You have a right to build your residence and the right to a piece of landto plough. You also have the right to establish a cattle post somewhere and to pasture your animals on thecommonage. But that right was somewhat modified by the fact that you had to get the approval of the landoverseer, who was the chief’s man on the ground who had to agree that there was space for you. He would notagree to that until he had consulted the other users of the commonage of that particular area.Your rights to a dwelling site and arable land are exclusive. Once these rights have been allocated you mayfence the land. You had other rights too. If you wanted to dig a well you had to ask the land overseers’ consent.’(Richard White, former chair of the Kgalahadi Land Board interview, 2011)

16 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquedug. Much potential grazing land remained beyondthe reach of stock owners because of the unavailabilityof water. From the 1930s state money was investedto develop deep boreholes with motorised pumps totap into groundwater sources. Improvements in thesetechnologies in the 1950s enabled livestock farmers toexpand into the sandveld. Subsequent borehole investmentwas made by the state together with syndicatesof cattle owners and individuals with large herds. Giventhat access to water was the key factor enabling theutilisation of rangeland, the grazing around these newwater points came to be exclusively utilised by theborehole owners.The overall thrust of land policy in Botswana post independencehas been to increase the area of tribal landat the expense of both state and freehold ownership.(Adams et al., 2003: 2). However, as we discuss below,the expansion of the tribal land area conceals the factthat much of the grazing commons has effectively beenprivatised through leasehold arrangements.Land policy post-independenceDecentralising land governance?The history of independent Botswana is characterisedby contested narratives about decentralisation. Officialaccounts highlight orderly processes of devolution,deconcentration and delegation from Central governmentto district and local institutions. For example arecent African Development Bank report describes theprocess of decentralisation in Botswana as follows:Decentralization in Botswana involves threemajor processes of devolution from centralgovernment to Local Authorities and Land Boards;de-concentration within the central governmentministries; and delegation from the ministries toother agencies and parastatals. The devolved LocalAuthorities are rural and urban local governmentbodies, that is, District Councils, Town Councils,and City Councils, which derive their authority andfunctions from the District Councils Act (1965) andTownships Act (1955).A major boost for decentralisation for localdevelopment and capacity building was theestablishment of the District DevelopmentCommittees (DDCs) and Village DevelopmentCommittees (VDCs) in 1970. The weaknessesof decentralised local government include lackof human capacity and problems of retention ofqualified, competent and experienced staff. Thelocal government authorities have, nevertheless,adequate financial resources allocated to themthrough the national budgeting process.(African Development Bank, 2008: 4)However there are strong counter narratives whichquestion the success of Botswana’s decentralisationprocess, particularly in relation to the Land Boards.Some studies argue that ‘the establishment of triballand boards has enabled local elites to centralisedecisions about land to their own benefit’ (Peters, 1994:191). Peters cites Werbner (1982), who argues thatthe Land Board in North Eastern Botswana actually‘replaced a highly decentralised system’ characterisedby locally negotiated rights and claims.With independence in 1966 a number of measures weretaken by the new government to change policy relatingto land allocation and governance. These included abattery of new laws and the establishment of a range ofnew institutions.The new laws included:• The State Land Act, 1966• The Chieftaincy Act, 1966• The Tribal Land Act,1968• The Customary Law Act 1969.At independence, about 49% of the national land areawas tribal land, less than 4% was freehold and the balancewas state land (Adams et al., 2003). The promulgationof the Tribal Land Act (TLA) in 1968 marked a majorshift in the land governance and management systemwhile continuing to keep key aspects of customary lawintact.

Chapter 2: Botswana17The new modernising political leadership which spearheadedthe drive for political independence set out toput in place a new system. Ng’ong’ola (1992) recalls theview of the first President of Botswana that customaryland administration systems could not incorporate‘modern concepts and practices in land use’.The basic premise underpinning land law and policy inBotswana is that land itself remains vested in the State.The State allocated citizens land through differentmechanisms including certificates of customary rightsand common law leases. The rights on the land can betransacted, as opposed to the land itself. For example,‘The lease on the land can be sold through the propertymarket based on the value of the improvements to theland, rather than exchanging ownership of the landitself’ (Ditshwanelo, 2007).New institutions were put in place to implementthe post independence approach to land rights andgovernance.Democratically elected district councilscomprising local government were introduced inBotswana only after independence in 1966. Beforeindependence, tribal councils headed by traditionalleaders (digkosi) performed limited localgovernment functions. These councils includedsome members nominated by the chief andsome elected by the Kgotla. After independence,democratically elected bodies established bystatutes of parliament replaced these tribalcouncils.(Sharma, n.d: 3)The key thrust of the TLA and the Chieftaincy Act wasto recognise the institution of the digkosi but to limittheir powers, particularly with respect to the allocationof land (Morapedi, 2010). From the 1960s, legislationsought to address the ‘imbalances’ resulting from theoperation of the customary land allocation systemduring the colonial period. There are different viewsabout the nature of these imbalances. One highlightswidespread and systemic imbalances in both rural andurban areas:The system under the Chiefs was very, veryimbalanced...because once you are nearer the chiefand once the chief has appointed you to overseethe allocation of land you will normally go thereand designate some areas for your own self. So itwas full of imbalances. And an average Motswana,a moderate Motswana would not get plots, wouldnot get land and would not think of even goingout there to look for land because they weresuppressed.(Ministry of Lands interview, 2011)In the other view, such imbalances were restrictedto particular peri-urban areas, but that in most ruralsettings people were able to access land without muchdifficulty.The extent to which the new system has addressedthese imbalances remains questionable. New institutionssuch as the District Councils and the Land Boardswere established to give effect to the new land administrationsystem. Comaroff (1982) in Peters (1994) hasargued that the Land Boards simply ‘became a vehiclefor further accumulation by a landed elite.’At a broad institutional level Ng’ong’ola (1992: 140) hasobserved ‘the persistence of the gap between the lawin the statute book and law in action.’ He notes thatLand Boards particularly have often failed ‘to superviseland dealings and transfers’ (ibid) in peri-urban areas.This reflects the acute pressure on land in these areas,the existence of informal land markets and the mismatchbetween peri-urban land needs and the assumptionsunderpinning Tribal land application procedures.In the new system the digkosi were rapidly ‘strippedof much of the formal authority’ which they enjoyedunder the Protectorate (Peters, 1994: 47). A House ofChiefs was established as part of the post independencegovernance structures, but this was primarily anadvisory body. The dikgosi were recast as paid functionariesof the State. ‘Kgosi is now a civil servant receivinginstructions mainly from the government.’ (Mgadlaand Campbell, 1989: 56). The fact that Seretse Khama,the first President of independent Botswana was also

18 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquethe paramount chief of the Bamangwato people wasan important factor in helping to push through thesereforms.As might be expected many dikgosi did not welcomethe new institutions and the changed approach toland management and governance which diminishedtheir powers. As an official in the Department of Landsobserved:Well after the Land Boards came into operation itwas a little bit of a problem --- let me say it was ahuge problem to get the chiefs to understand whythese Land Boards had been created.(Ministry of Lands interview, 2011)The implementation of the Tribal LandActThe Tribal Land Act recognised the land rights whichpeople could acquire in terms of existing custom andpractice. As Richard White explains:The Tribal Land Act ...did not touch customarylaw. It left it intact. What it changed was whowas responsible for administering it. It took thatpower away from the Chiefs and gave it to theLand Boards which were decentralised. The firstLand Boards had two District Councillors to makesure that there was democratic accountability. TheChief was a member which was to minimise thechief’s opposition to having the land allocationfunction taken away. Most of the balance of themembers were appointed by the Minister on therecommendation of the District Commissionerwhose interests were to have a Land Board whichoperated efficiently and fairly because thendisputes and complaints would not end up on hisdesk.The TLA provided for ‘the issuing of certificates asevidence of customary grants of individual rights forwells, borehole drilling, arable lands and individualresidential plots. The Act also provided for the grantingof common law leases with the consent of the Minister’(Adams et al., 2003: 4).The TLA started to be implemented in 1970 and in theearly years, the Secretary of the District Council actedas ex officio Secretary to the Land Board. This effectivelylocated the Land Board functions within the DistrictCouncil, but as more skilled people became availablein the 1980s, the Land Boards began to operate asindependent entities as envisaged by the legislation.Tribal Grazing Land PolicyThe TLA was followed by new land use policies whichaimed to accommodate ‘more modern practices of landuse, such as more exclusive allocation and utilisation oftribal grazing ranges’ (Morolong and Ng’ong’ola, 2007:146).The enclosure of the commons gathered momentumin 1975 with the introduction of the Tribal GrazingLand Policy (TGLP). Ostensibly this aimed to addressrangeland degradation through allocating exclusiverights to groups and individuals on land designated forcommercial ranches.As Hitchcock (1980: 2) observes:It appears as if the planners have a clear notion ofthe traditional system that must be changed. But itis striking that the features most often mentionedare negative; a lack of something or a conditionsomehow unrestricted. Above all, governmentreports insist that the traditional system of landtenure is structured in such a way that individualslack the incentive to conserve the range.The approach to rangeland management underpinningTGLP reveals the influence of Garrett Hardin’s (1968)article ‘The Tragedy of the Commons.’ Hardin’s thesiswas echoed by Botswana’s first President Sir SeretseKhama in 1975 when he stated that ’there is a growingdanger that grazing will be destroyed by uncontrolleduse of communal grazing areas by ever growing numbersof animals. ... And under our communal grazingsystem it is in no one individual’s interest to limit thenumber of his animals. If one man takes his cattle off,someone else moves his own cattle in’(Frimpong, 1995).Despite Hardin’s later assertion that the title of his articleshould have been ‘The Tragedy of the Unmanaged

Chapter 2: Botswana19Commons’, an enduring narrative was generated aboutthe inevitability of overgrazing and mismanagementof communal rangeland which continues to dominaterangeland management policy and practice in Botswanatoday.The TGLP tried to address perceived rangeland degradationby encouraging ranching through the allocationof exclusive rights to groups and individuals on newlydesignated farms, which stock owners could accessthrough a nominal common law lease. The new policydirection was given effect through a World Bank fundedprogramme to promote a ‘modern’ cattle ranching sector.A substantial portion of the communal grazing landwas designated for commercial ranches and allocatedto individuals on 50 year leases (Mathuba, 2003).Today there is widespread acknowledgement that theenclosure of the commons has effectively instituted asystem whereby those people who have been allocatedTLGP farms have acquired dual rights on enclosedranches and on the commons.A former District Officer in the Ministry of Lands notesthat:Initially the TGLP farms were being rented outat 4 thebe hectare. The standard farm was 6400ha (8x8 km) and at 4 thebe a hectare this wasvirtually nothing. So ...big cattle owners receivedan additional piece of land which could only beaccessed by themselves while still having access tothe communal grazing.(Former District Officer interview, 2011)Despite the tragedy of the commons thesis there iswidespread agreement that the allocation of TGLPfarms has done nothing to improve grazing management.If anything the retention of dual rights hasprovided a perverse incentive to accelerate the pressureof available grazing.An official in the Ministry of Lands expressed concernthat:Mismanagement (on the enclosed farms) is stillgoing on. People are over grazing their farms anda later stage they take out their livestock to thecommunal areas. This still persists even today.(Ministry of Lands interview, 2011)Solway in Datta and Murray (1989) argues that the TLGPaccelerated the privatisation of land and cattle whileincreasingly limiting the access of the poor to pastoralresources - a process which has contributed to thegrowing polarisation of Botswana society.The role of the Land BoardsThe TLA established Land Boards for specified ‘tribalareas’ that corresponded with the original nine ‘nativereserves’. The Land Boards in each of these areasexercise a variety of functions. They allocate land. Theyare responsible for the development of land use plansin the areas under their jurisdiction. They approvechanges in land use as well as land transactions andtransfers between individuals. However it is importantto note that for land use plans to have legal effect theystill had to be approved by the District Council.All the land use plans, although they may havebeen developed through the Land Board officiallyhave to be adopted by the District Council. If theland-use plan has not been adopted by the DistrictCouncil, strictly speaking the Land Board is notentitled to allocate land on the basis of that plan.(Former District Officer, interview, 2011)At the same time District Councils took control oftaxation and stray cattle (matimela) - former functionsof local kgosi. (Morapedi, 2010, Peters, 1994).Subsidising decentralised landmanagement servicesThe Botswana government has made a significantinvestment in decentralising land management over theyears. For the average Motswana most of the serviceswhich the Land Boards provide on tribal land are free. AMinistry of Lands official explained that:You don’t pay anything because the governmentsays customary rights are common to all so youhave the right to own a piece of land across the

Chapter 2: Botswana21a measure to retain the political support of the dikgosi.This is consistent with moves by ruling blocs across theregion to re-emphasise the administrative and politicalrole of traditional authorities which Oomen (2005) refersto as a process of ‘retraditionalisation’.Establishment of Sub Land BoardsIt was quickly found that the Land Boards couldnot cope with the volume of work involved in theregistration of customary land rights. Initially theydelegated the work back down to headmen, but thiswas unsatisfactory as the whole point of introducingthe TLA was to democratise the land allocation process.The overextension of the main Land Boards led to theestablishment of subordinate Land Boards in 1973to allocate land under customary law for residentialpurposes, ploughing, grazing cattle and other stockand for other ‘communal’ uses (Griffiths 2010). This hasbeen an ongoing process as Government has tried torespond to persistent complaints about the slow pace ofregistration and transfers.Applying for a customary land rightscertificateThe customary land right application form is reproducedbelow. The applicant must complete the formand obtain the signature of the land overseer.The certificate is accompanied by a sketch map of theplot, but as a former District Officer in the Ministry ofLands observes:One of the major shortcomings of the system tostart off with was that there was no cadastralsurvey. It really complicates matters. Becausewe don’t have a very strong written history andeverything is verbal when the older generationslowly falls away we have great difficulty in tryingto recall what was happening and where thingswere.(Former District Officer interview, 2011)White, adds:Your neighbours and the land overseer aresupposed to know where (the plot) is but it doesnot always work. One of the big issues is to setup a system where you spatially define whateverybody has. Before the Land Board were createdallocations were verbal and there are still a lot ofpeople occupying land which was allocated onthis basis who have never felt the need to go tothe Land Board to obtain a certificate. Withoutthe certificate it is possible that people can bedispossessed.(Richard White interview, 2011)Managing land disputesWerbner (2004) notes that until 1995 the Land Boardsstill referred appeals which people brought againstBoard decisions to the Minister. But as the volume ofcases increased, it became clear that an independentsystem for managing land related disputes wasrequired. While the customary courts were empoweredto deal with small local disputes, a Land Tribunal wasestablished to rule on contested land allocations andcases of conflicting and overlapping rights.Between 1996 and 2005 an appellant was able to havea case heard by the Tribunal at no cost. However inrecent years the policy has shifted to allow the Tribunalto award costs against an appellant who brings a caseto court and loses. This risks undermining the effectivenessof the Tribunal as in a land dispute those with theresources to hire lawyers are likely to intimidate thosewho cannot afford such services and who fear that ifthey lose they will be saddled with crippling legal costs.Regulating land leasesA Presidential Commission on Land Tenure report in1983 recommending that:• Commercial and industrial leases issued on triballand should be allocated for a period of 50 years.• Common law leases could be sold to anothercitizen without the Land Board having to provide itsconsent for the transaction.

22 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueFull names of applicantPostal addressTel: No5 Man/woman*Are you a citizen of Botswana Yes/No* ID numberMarital statusMarried/Single/Divorced/Separated/Widowed*If married full name of spouseName of place where plot appliedfor isPresent use of plot applied forSize of plot applied forProposed used a) Residential b) Ploughingc) Cemetery d) Others: SpecifyIs land applied for debushed?List in full the names of people you have consulted who hold land bordering the plot for which you areapplyingList any other land rights you possess anywhere in the CountryAre all the sites mentioned above developed?Yes/No*I (full name of the applicant) .................................................... state that the above information is complete andcorrect. I understand that the discovery of incorrect or false information on the application shall result in therejection of my application and/or prosecution and/or forfeiture of the plot if already granted to meSignature of ApplicantDateI (Full name of Land Overseer) confirm that the plot applied for above:a) has been allocated/not been allocated*b) its allocation will interfere/not interfere with other people’s rights*c) the proposed land use will/will not conflict with the land use in the area*Signature of the Land OverseerDate*Delete words which do not apply

Chapter 2: Botswana23• Common law leases for residential plots on triballand should be extended to 99 years to provide sufficientsecurity to enable the owners of residentialdwellings to apply for mortgage finance.• If the leaseholder died his leasehold rights couldautomatically pass to his descendants.The recommendations recognised a de facto landmarket in land leases which further accelerated aftertheir adoption by Government and a further amendmentto the Tribal Land Act ten years later, which stated that aperson does not have to come from a particular area toapply for land there.This has given rise to a situation where people,particularly those well versed in the functioning of theLand Boards, have been able to acquire plots of land inseveral different areas. To date there appears to be littleeffective restriction on the acquisition of multiple plots.In peri-urban settings this has fuelled fronting and informaltransactions around the transfer of residential plotswhich are in high demand. This has led to a burgeoninginformal land market which tends to benefit those whoalready have access to resources. As Mathuba (2003:13) has observed:The laws stipulate the requirements for transferof land rights. However, landholders often findways around these requirements and transferundeveloped land. Transfer of land is rarely everdone in favour of the poor or the disadvantagedgroups. Like fronting, the transfers are mostly tothose who have the means to buy the land andnot those who need it - thus creating skeweddistribution of land.This has its roots in the recommendations of the LandTenure Commission and has contributed to wideninginequality and mounting social tension in Botswanasociety.Enabling women’s independent accessto landIn its original conception the TLA ‘bore all the hallmarksof a patriarchal institution’. Until 1971, husbandsretained absolute power over their wife’s propertyand estate. (Kalabamu, 2006: 240) Historically, landrights were vested in men. Original drafts of the TribalLand Act referred to the land rights of ‘tribesmen’.However the increasing prevalence of householdsheaded by single women in Botswana prompted NGOsand women’s advocacy groups to press for the legalrecognition of women’s land rights. This issue startedto gain momentum in the 1980s and became increasinglyprominent in the 1990s. In 1993 an amendmentto the Tribal Land Act substituted the word ‘citizen’ for‘tribesmen’. This change was far reaching on a numberof fronts. From a gender perspective, it representedan important step towards gender equality before thelaw. However, it should be noted that where property isinherited ‘tradition still gives unequal succession rightsto boy and girl children’ (Ntema, 2011).The amendment also did away with the tribal basis onwhich the TLA was premised, which had meant thatpeople mostly applied for land in the area from whichthey originated. The new legal order meant that citizenscould now apply to be allocated land located in a triballand area anywhere in the country, irrespective of wherethey resided.Eleven years later the Abolition of Marital Power Act(2004) abolished the husband’s power of control overfamily property and the acquisition and transfer ofland (Griffiths, 2010: 7). The 2006 Demographic Survey(Government of Botswana, 2009: 26)records that 64.6%of the population has never married and that 46.6% ofthe households in the country are headed by women.Contemporary research by Griffiths (2010) in KwenengDistrict demonstrates that women are acquiring landin their own right through the acquisition of customarycertificates and leases. Between1999 to 2009, 2 063out of 4 041 land certificates and leases issued in theDistrict were registered in women’s names (Griffiths,2010). DITSHWANELO confirms this trend but cautionsthat while women may now be able access landin their own right, inheritance practice continues todiscriminate against women and minors. Kalabamualso sounds a caution concerning the ‘mutative natureof a patriarchal gender system’(Kalabamu, 2006: 244)

24 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiqueand its persistence in limiting married women from thecontrol and ownership of land.National Policy on AgriculturalDevelopmentThe National Policy on Agricultural Development(NPAD) which was issued in 1991 restated the assertionof the TGLP that the growth in livestock numbers on theunmanaged commons had caused significant overgrazingand rangeland degradation. This was based on anassumption that livestock and vegetation were in equilibriumand that grazing stock in excess of the carryingcapacity calculated to maintain this equilibrium wouldresult in long term rangeland damage. Non equilibriumapproaches to rangeland management (Behnke andScoones, 1992) which hold that ‘rainfall has moreimpact on rangeland productivity than livestock does’,never gained official support in Botswana.The NPAD proposed acceleration of the issue ofexclusive rights over much of the Tribal Land Areaas a solution to this problem. This was based on theassumption that individual livestock owners wouldmanage the grazing on ranches which they had beenallocated more effectively.Land on the commons in the vicinity of water pointsowned by individuals or syndicates (de Queiroz, 1993)was targeted in terms of this policy, which sought toallocate fenced ranches after land use plans had beenprepared and had been approved by Land Boards. By2003 a further 552 ranches had been demarcated underNPAD (Mathuba 2003).With the predominant focus of rangeland managementpolicy being on the enclosure and privatisation of thecommons, critical questions have been raised aboutthe impacts this has had on the sustainable managementof land and natural resources in the remainingcommunal areas and the livelihoods of small scalelivestock farmers. As noted above, policy awarded dualrights to the large ranchers allocated exclusive accessto ranches and TGLP farms, who continued to beable to exercise their customary grazing rights on thecommons, running their stock there until the grazingwas exhausted before moving their stock on to privateland for fattening. Small scale graziers on the commonswere left with poor quality grazing for their stockwhich rendered them particularly vulnerable in times ofdrought.These and other issues were to be addressed as partof a comprehensive land policy review which wasundertaken in 2003. However this review, which madedetailed recommendations on all aspects of landmanagement and suggested alternatives to the systemof dual rights, was never publicly released. This gaverise to speculation that the proposals contained in thereport, recommending that dual rights be abolished,were blocked by large cattle owners who exercisesignificant political influence.Table 2: Plans for district developmentDistrict Development PlansVillage Development PlansDistrict Settlement StrategiesDistrict Integrated Land Use PlansThe Department of Physical Planning does Districteconomic planning.Individual village development plans are prepared bythe physical development committees within the differentvillages in consultation with Village DevelopmentCommittees.The District Settlement Strategy is carried out by theDepartment of Town and Regional Planning.The District Integrated Land Use Plans are prepared bythe Land Boards and must be approved by the DistrictCouncil.

Chapter 2: Botswana25During our research it was reported that Cabinet hadrecently approved a new Land Policy. However, at thetime of writing in August 2011, this was not yet in thepublic domain.Figure 2: Districts in BotswanaLand use planningDistrict land use plans prepared by the Land Boardsare but one of many plans developed at district level. Avariety of government institutions are responsible forplans of different types. The table below highlights thearray of plans guiding district development.The Town and Country Planning Act of 1974 is the keypiece of planning legislation in Botswana. This Act,which is modelled on the British planning legislationfrom 1947, has not kept pace with the planning needsin Botswana. ‘The major feature of this Act is that it isvery much centralised. The Minister of Lands has thefinal say’ (Prof Molebatsi interview, 2011). While theLand Boards feature prominently in the discourse ondecentralised land governance Molebatsi cautions that:We have many players but a lot of centralisation.When it comes to land allocation yes there aremany players. But at the end of the day everythingis centralised. I am not sure that there is muchdecentralisation in the way that land is allocated.(Prof Molebatsi interview, 2011)Perspectives from Chobe DistrictHaving outlined some of the key features of the overarchingland policy and governance environment above,we now examine how these factors play themselves outin the Chobe District setting.The research in Chobe involved:• interviews with DITSHWANELO staff responsiblefor the organisation’s land rights programme;• a meeting with the Chairman of the Chobe LandBoard together with the Land Board Secretary;• a meeting with the Acting District Commissionerand officials from the State Land Allocation Committee;and• meetings in three different settlements with thekgosi, or subkgosi, the land overseer and membersof the local community knowledgeable about theprocess of land allocation and governance.The aim of the research was to hear a variety of localvoices and to reflect on practical land governancepractices.Chobe District is relatively small compared to manyother Districts in Botswana. People in the Districtoccupy portions of land which are sandwiched betweenthree protected areas: the Chobe National Park, ChobeForest Reserve and the floodplains of the Chobe River.It receives a rainfall of more than 650mm per annumand is the highest rainfall area in Botswana, mostsuitable for growing rain fed crops, particularly maizeand sorghum (Jones, 2002). Some 25 000ha have beentargeted for commercial agricultural production in thePandamatenga area (African Development Bank, 2008).Chobe is also a prime tourist destination with touristlodges along the river which accommodate foreignvisitors who visit the Park and view game from the river.The town of Kasane is the hub of wildlife tourism in

26 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueFigure 3: Chobe District – Settlement areas0 20 40 kmZAMBIAKasaneTownshipSatauMabeleParakarunguKavimbaChobe KachikauEnclaveMababeLinyantiKazungulaLesomaNSavutiMaikaeleloF.R.PandamatengaSibuyuForest ReserveCHOBE DISTRICT COUNCIL (BOTSWANA)Northern Botswana (Jones, 2002). Wildlife, particularlyelephants, is not confined to the Park. They migratebetween different wildlife areas. Elephants and buffalofrequently destroy crops while predators kill livestock.Tribal land in Chobe constitutes a third of the total landarea in the District while the remaining two thirds aredesignated as state land – mainly national park and declaredforest reserves. There are a number of villages inthe area including Kazungula, Lesoma, Pandamatenga,Mabele and Parakarungu.People in the area derive their livelihoods from a varietyof sources. Subject to land availability, they can accessplots for arable agriculture through the Land Board.The minimum plot size allocated for arable agricultureis 12.5ha and the maximum is 39.5ha (Chobe LandBoard interview, 2011). The Botswana government isencouraging what it terms ‘cluster farming’ whichencourages people to form groups who may apply forup to 150ha. People in villages close to the river areinvolved in fishing.People raise some livestock although Chobe falls intoa red zone for foot and mouth, a disease carried bybuffalo (Jones, 2002). This restricts the sale of livestock,which can only be sold on local markets. The combinationof foot and mouth disease and tsetse fly limits theextent of livestock holdings. In this setting there is asignificant tension between conservation and agriculturallivelihoods.Some revenue is derived from community trustsinvolved in community based natural resource managementpartnerships with tourism or safari companies.Five villages within the Chobe enclave, Kachikau,Kavimba, Mabele, Satau and Parakarungu formedvillage trusts that are represented on the Board of theChobe Enclave Conservation Trust, which manageswildlife quotas on behalf of local villages (Jones, 2002).However, local informants argued that very little of thisincome is finding its way back to realise meaningfulbenefits for people in local communities.The Chobe Land BoardThe Chobe Land Board is responsible for land allocationand management on tribal land in the District. LandBoard Secretary, GG Moepeng and Board Chairman,Nelson Masule provided background on the work andstructure of the Chobe Land Board:We are responsible for land allocation,consideration of disputes, complaints, transfers,change of use, additional uses, even compliance todevelopment because you know we allocate andwe have to see to it that people comply. Even if wehave allocated a residential site we have to see to

Chapter 2: Botswana27it that the site is used for residential purposes andnothing else. So that is our responsibility and wehave to monitor that time and again.(Chobe Land Board interview, 2011)They explained that the Chobe Land Board is a fullyfledged Land Board. Because the area of tribal land isrelatively small compared to the proportion of State landin the District, there is no need for a Sub Land Board.The Board normally has ten members but in Chobe it isoperating with eight. Members of the Board sit six timesa year. They elect their own chairperson annually and allocatepeople to sit on various development committeeswhere the Land Board is represented. The Secretary, asthe Accounting Officer, is responsible for the executionof the Board’s mandate and implementing decisionsmade at Board meetings, together with compiling andpresenting the budget. Board members are accountableto the Minister and are appointed for staggeredtime periods of three and four years each to maintaininstitutional memory and ensure operational continuity.The Board Secretary reports directly to the PermanentSecretary in the Department of Lands. People seekingaccess to state land approach the District State LandAllocation Committee, which falls under the Departmentof Lands.The Land Board combines technical departments,including mapping and surveying and administrativedepartments, including records management, accountingand supply. The Board operates in terms of the TLAand can formulate its own local policies in consultationwith District Council.In the day to day execution of its tasks, the Land Boardworks closely with the Department of Physical Planning(DPP) which is based in the District Council. The LandBoard prepares a holistic land use plan for differentareas under its jurisdiction while the DPP is responsiblefor preparing the detailed layouts.The Chobe Land Board currently employs 77 staff.Central Government has delegated human resourcemanagement responsibilities for staff on lower salaryscales, to the Land Board Secretary who is responsiblefor hiring, firing, training, transferring and promotingjunior and lower level management staff. However, theappointment and management of more senior postsremains the responsibility of the Ministry.With regard to the role of digkosi on the Land Board, theSecretary confirmed that once again, ‘according to thenew appointments to Board we will either have chiefsor their representatives on the Board’. This would seemto confirm the resilience of the digkosi in Botswana, towhich Nyamnjoh (2003: 96) attributes a ‘fascinatinginherent dynamism and negotiability that guaranteesboth resilience and renewal of its institutions.’Local level co-ordinationThe District Commissioner who reports directly to theoffice of the President acts as the district coordinatorfor all development activities planned in the district.Development co-ordination takes place in a number offora including:• a Plan Management Committee where the DistrictCouncil, the District Commissioner, the Land BoardSecretary and the Tribal Administration meet;• District Development Committees where allthe authorities are represented and the districtdevelopment plan is discussed; and• a District Land Use Planning Unit which bringstogether a range of other departments.Contrary to the concerns expressed by other actorsabout lack of co-ordination in development planning,the Land Board Secretary was of the view that:Here the system is working very well. Things mustbe scrutinised thoroughly before they are beingimplemented. The District Commissioner playsa key role in that process to ensure coordination.Some of the things we do are visible and others areinvisible. For example with regard to developmentyou can see a village growing up slowly, slowly.Even though it is not fast they have still have theopportunity to grow. People really understandthe procedures and regulations although we stillencounter some lack of lack of understandinghere and there. Things are going well because

Chapter 2: Botswana29people are being consulted. Where they don’tlike they indicate. We also see that there’s a lotof preservation of wildlife and because of thecoordination we’re having we maintain that inexistence. And of course we are enjoying theoutside world admiring us. Even the land itself – wedon’t give it out just like we are issuing somesweets. Consideration is made. So I take it theseare our achievements.(Chobe Land Board interview, 2011)The Chobe Land Board also acknowledged a number ofchallenges. These included:• a shortage of land which required the Land Boardto negotiate for the release of the portion of theforest reserve to enable people to access land incertain areas;• some constraints with regard to lack of resourcesfor monitoring that land awarded is properlyutilised.DITSHWANELO’s Land RightsProgrammeDITSHWANELO (The Botswana Centre for HumanRights) is a Botswana human rights organisationRichard Kashweekaestablished in 1993. It established an outreach office inKasane, following a direct request from the Basarwa/San community in the area. However Richard Kashweeka,the manager of the Kasane office explained thatthe services of the programme have been extended toall marginalised people who ‘lack self esteem to be ableto confidently interact with land authorities and whodo not have a clear understanding of procedures to befollowed to access land or protect their land once it isallocated to them’ (Richard Kashweeka interview, 2011).DITSHWANELO land rights programme officers, MushananaNchunga and Onalethuso Ntema described howthe programme combines local level interactions withvillagers and processes which engage directly with theauthorities. DITSHWANELO have organised a varietyof programmes, seminars and conferences to raiseland rights related issues with government officials andother actors.DITSHWANELO points out that officials often have alimited understanding of the needs and concerns of thepoor. They observe the changing context characterisedby accelerating social inequality and the progressivecommodification of land (Peters, 2007). Overall theprogramme seeks to provide protection against the‘greed amongst those who are well off which resultsin the grabbing of land and related resources from thepoor’ (Richard Kashweeka interview, 2011).DITSHWANELO argues that in the Chobe district thereis a particular need to balance conservation with socioeconomic rights and development. Many people havevery limited access to land because they are trappedbetween conservation areas and commercial farms. Inthis context DITSHWANELO provides support as partof the Technical Advisory Committee to assist CommunityTrusts to get maximum benefits from the wildliferesources they are allocated. They lobby to degazetteportions of the forest reserve to ensure that people canaccess sufficient land to meet their needs. They alsotry and find ways to mediate the animal/human conflictwhich contributes to an increase in the poverty of poorhouseholds whose livelihoods derive from cropping andlivestock.

30 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueIn Chobe elephants can walk anywhere they like.Government gives land, seed and tractors, but oncepeople have ploughed and planted and their crop isgrown large game comes and wipes everything out.(Richard Kashweeka interview, 2011)The land rights programme focuses on the socially andeconomically marginalised. DITSHWANELO placesparticular emphasis on Alternative Dispute Resolution(ADR) methodology which they argue is well rooted inTswana society. ADR is premised on getting parties indispute around the table to talk matters through andjointly identify mutually acceptable solutions by meansof facilitated discussion.We start by assisting people to find local solutions.If this fails then we explore other options. The otheroption is to go to the Kgotla – the traditional court.If people are not satisfied we can take matters tothe Customary Court of Appeal. If they are still notsatisfied and people require a lawyer, we refer themto the legal clinic at the University of Botswana orwe assist them to identify a human rights lawyerwho charges a low rate. Sometimes the matter hasto go to the High Court – particularly in cases ofinheritances.(Richard Kashweeka interview, 2011)In the case of land disputes where the Land Board’sattempts at resolution have been unsatisfactory,DITSHWANELO assists parties to appeal to the LandTribunal and if necessary, from there to the highercourts.Richard Kashweeka (interview, 2011) observes that:Most people don’t want to go through courtsystem as it is too expensive. If the matter involvesland we will involve the Land Board, the Socialand Community Development Officers fromCouncil together with somebody from DistrictCommissioner’s office.DITSHWANELO has also been involved in actionresearch related to land problems and has played a rolein policy development and review, including reviews ofland, tourism and community-based natural resourcemanagement (CBNRM) policies and the development ofthe first forest policy in Botswana.In everything we are doing the main thing is thatthe marginalised are protected and their rights arepromoted. Protection and promotion of the landrights of the marginalised to us is key. Our goal isto make sure that land is equitably distributed andnot skewed toward the rich. It is a great challenge.(Richard Kashweeka interview, 2011)Village voicesWe visited three separate villages with very differenthistories and located in different settings:• Kazungula – a peri-urban village close to the ferrycrossing to Zambia at the confluence of the Chobeand the Zambezi rivers;• Pandamatenga – a village close to Zimbabweborder and the Matetsi Safari Area; and• Mabele – a village accessed through the ChobeNational Park on the Chobe River and adjacent tothe Chobe Forest Reserve and close to the Namibianborder.We held focus groups discussions in Kazungula andMabele with the kgosi, the land overseer and localresidents. In Pandamatenga, we were only able toconduct an interview with the local kgosi.KazungulaHistory of the areaMembers of the Kazungula focus group traced the originsof the village to the activities of WENELA, a SouthAfrican mine recruitment agency which set up an officethere in the 1930s. However, development only startedto happen in this area after the 1960s when Botswanabecame independent. As tourism activities expanded inChobe so jobs were created and more people settled inthe area. Mr Balemogeng estimated that the populationof Kazungula was currently about 3 000 people. No

Chapter 2: Botswana31Figure 4: Kazungula villageMr Balemogeng: Deputy sub-chiefKazungula villageKazungula Land Overseer

32 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiqueaccurate information was immediately available aboutthe number of households.Declining role of agricultureInformants reported that agriculture had played animportant role in local livelihood strategies in thepast, but small scale agricultural activity has declinedsharply over the years. A key factor contributing to thedecline of small scale agricultural production was gameencroachment. Currently, households derive their mostof their income through poverty alleviation programmesand household members in formal employment. Manypeople in Kazungula now regard themselves as urbandwellers although some people continue to keep stockand are involved in some agricultural activity.Access to natural resourcesPeople also have access to the Forest Reserve to collectfirewood and harvest medicinal plants, but only if theseare for personal use. Commercial harvesting requirespaying for a permit which is issued by the relevant departmentfor a set fee. The land overseer reported thathe played no role in such things which he said werethe responsibility of forestry and wildlife officials. Whilelocal residents are supposed to derive benefits throughthe community trusts which have been establishedas part of the broader CBNRM initiative discussedabove, people stated that the benefits were erratic andunevenly spread. However some examples were cited,where the Trust had identified destitute people andconstructed shelter for them. Money from the Trust wasalso used to maintain local community facilities.Land allocation processesLand allocation in Kazungula village almost exclusivelyinvolves residential sites. In 2010 the land overseerreported that about 600 applications had been receivedand forwarded to the Land Board. All applications werefor residential stands. In the previous 18 months not asingle application had been received for agriculturalland. The kgosi and the land overseer were reluctantto estimate the gender breakdown of the applicationsfor residential stands. They stated that no local recordswere kept of applications. These were held by the LandBoard which kept all data on land. They confirmed thatapplicants were not required to pay anything as partof the application process. The land overseer reportedreceiving an honorarium of 170 pula per day (US$25)when allocating sites.Generally the kgosi and members of the focus group feltthat the dikgosi and local people had little real powerwhen it came to the allocation of land:The Land Board has been given power by thegovernment to allocate the land. We kgosis wedon’t have any power. If they do anything we justlook on them only.Some people keep cattle and small stock which grazenearby – in the village and surrounds. The focus groupmembers said that they had applied to be allocatedgrazing land but that this had not been approved asyet. People stated that a land shortage might requiredegazetting a portion of the forest reserve.The land overseer stated that the government isencouraging cluster farming and that Kazungularesidents had come together to acquire land to plough,but the Land Board had told them that they should goand plough at Pandamatenga which is far from wherethey stay. Apparently the Land Board had stated thatland adjacent to the community has been set aside forother purposes. People felt that the land use plan wasnot taking into account their needs and that it was notclear how they could influence this.Land Board performanceIn their discussion about the performance of the LandBoard, residents of Kazangula noted that waitingperiods could vary substantially from person to person.It was stated that some people seemed to have theconnections to get their applications to the front ofthe queue. Concerns were also expressed about localpeople fronting for others to enable them to gain accessto residential stands which were quickly resold.PandamatengaPandamatenga village is sandwiched between theZimbabwean border and a commercial farming area.

Chapter 2: Botswana33The surrounding area has been the target of variousgovernment programmes to increase cereal productionsince the 1980s when some 25 000 ha wereinitially allocated to ‘farmers associations’.. Howeverthe prevalence of flooding in the area and the lack ofroads and drainage infrastructure meant that much ofthe land was never brought in to production (AfricanDevelopment Bank, 2008).A large infrastructure development worth about US$70million was launched in September 2010 to constructa water drainage system and a new road networkto improve access to the farms in the area, and willcover more than 27 500 hectares of farmland. (AfricanDevelopment Bank, 2008). The project area has beendivided into three separate blocks:• Central farms – 16000 ha• Southern farms – 9000 ha• Small scale farms – 2500 ha.Figure 5: Padamatenga villageFigure 6: Pandamatenga Commercial farming area (African Development Bank,2008: Annex 1)

34 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueKgosi BanikaKgosi Banika provided her perspective on how thingshad changed in Botswana after independence.The kgosi and land allocationThe kgosi used to have powers over land. Thatwas very important. But then changes in the lawmeant that there were no more tribesmen onlycitizens. During the colonial era a person couldnot move from one area to another without a letterintroducing him to the kgosi of the other area.Nowadays someone can come to stay here and Iwon’t know about it. They can apply for land and Iwon’t even know who they are. The only time I willknow who they are is when they have a problemand they need assistance. This has eroded ourpowers.In the new plan, 245 households will access the areasset aside for small scale production while 21 farmerswill have access to the remainder. According to theAfrican Development Bank (ADB), the Project will encouragethe Chobe Land Board to promote a preferencetoward women in the smallholder allocation process.A kgosi’s perspectiveIn Pandamatenga we spoke to Kgosi Banika who isthe kgosi for the area. She explained how the villageoriginated in the 1890s when a white trader openeda shop in the area. She highlighted how historicallythe area was predominantly inhabited by San people.During the 1950s the Colonial Development Companydeveloped farms in the area to feed cattle which theypurchased in Ngamiland before selling them on to anabattoir in Northern Rhodesia.Kgosi Banika noted that Pandamatenga is one of themost diverse settlements in the country, with a total ofeight ethnic groups comprising the village populationof 250 households. These include the original San, theBananjwa who came in 1937, Ndebele who settled inthe 1950s, Lozi from Zambia and Basubiya from theother side of District as well as other groups. With theopening up of the commercial farms in the 1980s, therewas also an influx of white farmers into the area.(Kgosi Banika interview, 2011)According to Kgosi Banika she currently plays aminimal role in allocating land and has no relationshipwith the Land Board.If someone applies for land the application passesthrough the land overseer who is appointed by theLand Board as well as the community. Only theland overseer has to sign the application. The kgosidoes not have to sign. Most of the time the LandBoard predemarcates plots in Pandamatenga whichare then advertised and people apply.As the kgosi I don’t have any say in the allocation.Also I don’t play a monitoring role - the Land Boarddoes that. Kgosis were involved in the Land Boardup until the 90s. I was once a Board member. Thenthe forms were signed by the kgosi, but then I don’tknow what happened. There was a directive fromthe Minister taking out the kgosi.(Kgosi Banika interview, 2011)Kgosi Banika also reported that land disputes weretaken to the Land Board or the Magistrate’s Court ratherthan being settled at the village kgotla or customarycourt. ‘I have been in office for 10 years and I have neverheard a dispute around a land matter.’

Chapter 2: Botswana35Fields in the commercial farming areaFields of Pandamatenga villagersLocal land shortageThe kgosi described the high rate of unemploymentin the area, noting that the wages on the commercialfarms are very low, which provided people with little incentiveto work there. She observed that it was now verydifficult to get land in Pandmatenga – particularly sincethe area had been identified to spearhead nationalarable production. She described how 58 ploughingfields had been advertised and 3 000 people had appliedfor these plots from all over the country. The peoplewho were successful were eventually selected througha raffle.Land access favours the wealthy andwell connectedKgosi Banika argued that the qualification criteriawhich applied to the allocation of the nearby farmsfavoured outsiders with money and resources:You first have to buy a tender document for 500pula (US$72). Then you have to make a businessproposal and have a financial statement from thebank. It is not each and every community memberwho can get a certified financial statement. Thismakes it impossible for the people in the villageto get a farm. People have to apply like any othercitizen in the country regardless of whether you arestaying there or not.(Kgosi Banika interview, 2011)Vulnerability of the poor to downwardraidingBecause both residential plots and arable land are inshort supply there is a flourishing local land market, butKgosi Banika argued that this was serving to furthermarginalise the poor.Some local residents have resorted to selling thefields which they have been allocated. This meansat the end of the day some of our people will end upby having not even a residential plot and not havinga field which she or he inherited from their father.Very often people don’t know the value of the landwhich they are selling. They may sell their land

36 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquefor 10,000 pula, 5000 pula or 2000 pula – whatever,because they need cash for a day or two, and thenthat person is landless... Despite all the attempts tocontrol this, the selling is ongoing(Kgosi Banika interview, 2011)The situation in Pandamatenga highlights the vulnerabilityof local residents to ‘downward raiding’ - aphenomenon impacting on both the urban and ruralpoor. In these settings ‘low income households oftensell land cheaper because of crisis-sales (as money isneeded quickly) or because of a greater fear of reprisalbecause they are selling land they do not own’ (Thirkell,1996). Currently it appears that there is no system tomonitor the land sales or to indicate fair market valueper hectare in any particular area.Dysfunctional CBNRM institutionsKgosi Banika also spoke about how the poor werenot benefiting adequately from local land and wildliferesources. She attributed this to the poor governance inlocal development institutions such as the communitytrusts established to manage funds obtained fromwildlife lodges and safaris.The Trust is not working well. No AGM has beenheld. Sometimes all the money just disappears intothin air. A lot of money is going to the communitytrust and the people are not gaining any benefit.The money does not go to the community becauseof the people who have been elected by thecommunity -- the board members they are theproblem. The most unfortunate part of it is thatevery two years when they are elected, they electdifferent people, but the same type of people whoare working for their own pocket. Sometimes wejust feel like crying.(Kgosi Banika interview, 2011)Kgosi Banika noted that these problems were widespreadand had also affected the Village DevelopmentCommittees in Pandamatenga. While it needs to berecognised that the situation in Pandamatenga whichis represented here is largely a representation of thekgosi’s perspectives, her views resonate with thebroader literature and views articulated by other villagelevel actors in Chobe.MabeleIn Mabele we met with Kgosi Yambwa, the landoverseer, Mr K Tidimalo and a group of local villagers.Different informants provided perspectives of thehistory of the village which originated in the early 1900s.Figure 7: Mabele village

Chapter 2: Botswana37Mabele’s proximity to the Namibian border meant thatin the early years there had been some conflict overland with the neighbouring Hereros who had eventuallyreturned to Ngamiland.Changing land allocation andgovernance proceduresInformants described how land was allocated in theyears prior to the Land Board. In the early years peoplesimply identified and made use of land according totheir needs as there was little pressure on the resource.As time went by the kgosi’s permission was requiredbefore land could be allocated, but informants stressedthe deciding role of the elders gathered in the kgotlaand the consultative nature of this process.The establishment of the Land Board resulted in ‘greatchanges’. Now everybody had to acquire land throughthe Land Board. The establishment of the ChobeNational Park and the Chobe Forest Reserve during the1960s impacted significantly on local people. Mabele islocated on a narrow strip between the park, the forestreserve and the river.Tsheko, a Muchenje farmer withDITSHWANELO’s Richard KashweekaKgosi Yambwa and Rick de Satgéduring the focus grouping in Mabelevillage.Mabele village – the view from thekgotla towards the river and theNamibian borderMr K Tidimalo, Land Overseer forMabele village and villagers gather forfocus group session

38 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueThis affected our pastoral and arable agricultureand restricted our grazing.(Mabele focus group, 2011)Informants noted that the Land Board did not automaticallyissue certificates which recognised people’spre-existing rights in land. In certain instances theLand Board repossessed certain pieces of land if itsuses did not fit with the Land Use Plan for the areadeveloped by the Land Board. Informants argued thatthis plan had not been developed with their involvementand that they had been consulted after the fact. Theyalso criticised the process for registering land rightsheld by families which predated the passing of landlaw. People with long term occupation rights wererequired to go through the same process as thosepeople who applied for new sites. Some people statedthat they were not happy with this approach and hadnot approached the Land Board to formally record theirrights. DITSHWANELO expressed concern that therethose households whose de facto land rights were notrecorded could be vulnerable to land grabs by personsfrom outside the area.Of key concern to people in Mabele were the implicationsof the amendment of the TLA which substitutedcitizens for tribesmen and which gave Batswana fromall over the country the rights to acquire land in thetribal areas irrespective from where they originated.Linked to this was the problem that ‘some people in thecommunity are selling land without consultation andas a community we do not condone this’ (Mabele focusgroup, 2011).One man spoke about how his neighbour had sold landto a businessman who was not from the area withoutfollowing the procedures set out by the Land Board. Healleged that ‘Forms can jump over the land overseer andgo straight to the Land Board.’ He argued that transactionswith outsiders can bring problems for local peopleas ‘lodges and livestock do not go together’ (Mabelefocus group, 2011).Generally in Mabele, informants expressed scepticismabout the operations of the Land Board characterisingit as distant from the people and out of touch with whatwas happening on the ground. People were criticalabout how they had to go to the Land Board to addressland matters and that officials from the Board did notcome to them. They said that there were a lot regulationsestablished by government but that very few ofthem were enforced.Although members of the focus group at Mabele clearlyrecognised and understood the functions of the LandBoard and its procedures, they expressed concernsabout how local control over land matters had beeneroded and bureaucratised and how the current systemof land governance had opened up access to land inthe area to people from outside at the expense of localneeds. Members of the focus group questioned theextent to which the Land Board effectively engageswith local people and whether the process of land useplanning undertaken by the Board addresses localdevelopment needs and priorities.Assessing decentralised landgovernance in BotswanaMeinzen-Dick et al (2008: 1) argue that ‘it is critical todistinguish among the reforms that are referred to asdecentralization according to the type of institutionto which authority or functions are devolved.’ Theirtypology distinguishes between:• deconcentration or administrative decentralisationwhere authority is retained by the State andaccountability is upwards to central government;• democratic decentralisation to elected localgovernment; and• privatisationDemocratic decentralisation oradministrative deconcentration?The establishment of the Land Boards in Botswanahas long been held up as a model of decentralisedland governance. However, our analysis suggeststhat Botswana has instead put in place a process ofadministrative deconcentration that saw the establishmentof the Land Boards as new local State institutions

Chapter 2: Botswana39which initially marginalised traditional authoritiesbut retained strong upward accountability to centralgovernment. The accountability of the Land Boards tothe landholders in their area of jurisdiction remainsweak. The combination of upward accountability andthe opening up of eligibility criteria to allow citizens toaccess land irrespective of where a person resides hascreated a space of opportunity for the wealthy and theadministratively savvy. It renders the poor more vulnerableto domestic land grabbing in a context where landis becoming an increasingly valuable commodity.The balancing actCentral government has had to address a range ofresponsibilities to:• give effect to the national commitment to developa liberal democracy which protects the rights ofcitizens;• secure the entitlement of citizens to land;• respond to the need for transparent land governanceand administration;• manage rapid urbanisation and the growing landmarket in urban and peri-urban areas;• recognise and accommodate the socially embeddedinstitution of dikgosi in Botswana society;• address growing criticism from minorities that theway in which the institution of dikgosi had beenconstituted in law has privileged the dominantTswana merafe at the expense of numerous minorityand historically subject groups; and• respond to rapidly changing household demographicswhich increased the demand by womento be able to access land independently.Discourses of democracy andcitizenshipAs we have seen, the establishment of the Land Boardsand District Councils was one of the modernisingthrusts associated with Independence. Werbner (2004:110) identifies a post colonial consensus between‘leading politicians, senior civil servants and prominententrepreneurs’ who wanted to overhaul land administrationto bring ‘the many tribes of the colonial protectorateinto one democratic nation under an elected government.’Werbner (2004) cites Masire to the effect that thenew system of land governance would end ‘the arbitrarydecisions of chiefs’.Initially the TLA was a legal codification of a patriarchalsystem of land rights management and governance(Kalabamu, 2006). The subsequent amendment of theTLA in 1993 to substitute ‘citizen’ for ‘tribesman’ hassimultaneously strengthened and weakened entitlementsto land. Together with other legislation, theamendment has enabled more and more women toaccess land in their own right. However, at the sametime it has opened to door to outsiders acquiring landin localities to which they had no prior connection orclaim. As we see from the Chobe case study this hasled to sales of land to outsiders without local consultation,which has the potential of undermining localaccess to resources and eventually diminishing securityof tenure. Persistent concerns emerging from residentsin Chobe highlighted the erosion of local control overland matters. They highlighted how wealthy outsiderswere gaining access to land at the expense of localneeds, sometimes without observing due process.As discussed above, the system which has been put inplace ensures that certificates of customary land rightson tribal land are freely accessible through relativelysimple application procedures. There is no restrictionon the amount of land for which an individual can apply.The key question is: Who benefits from a dispensationwhere people can access tribal land in different areasacross the country?Available evidence suggests that it is the political andeconomic elite who are positioned to secure benefitsthrough the system by acquiring property portfoliosof Tribal land and profiting from the developing andtrading of these assets, particularly in peri-urban areas.Likewise, access to grazing land is marked by increasinginequality with a relatively small number of livestockproducers gaining exclusive rights on large tracts

40 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueFigure 8: Relative Gini rankings per country67.158.750.3BotswanaMozambiqueMadagascarSouth Africa41.933.525.116.88.40.01960 1967 1974 1981 1989 1996 2003 2010Source: World Bank development indicators 2011of land – something which favours those who arewealthier and better positioned to meet the applicationcriteria for ranches and farms allocated for exclusiveoccupation. The absence of a coherent communalrangeland management strategy and the retention ofdual rights by those already allocated exclusive rightsremain key issues. It remains to be seen how they willbe addressed in the recently approved, but unreleasedland policy.Increasingly skewed access to rangeland and tradingin residential sites in peri-urban areas are part of abroader pattern of rising inequality in Botswana whichhas seen the overall Gini index jump from 54 in the1980s to above 60 in the 1990s. The graph highlightsthe steep rise of inequality in Botswana relative to SouthAfrica, Mozambique and Madagascar.Land policy and governance concernsContemporary research is increasingly critical ofBotswana’s land policy and governance (Cullis andWatson, 2005, Werbner, 2004, Peters, 1994, White,2009). Researchers track the emergence of winnersand losers as a consequence of policy directions whichfavour large stock owners and the enclosure of communalgrazing. But there is also increasing criticism ofthe Land Boards themselves. Werbner (2004: 109- 112)asserts that ‘throughout the country... no state agencieshave been more controversial and less loved thanthe Land Boards.’ He argues that citizens frequentlyperceive their actions ‘to be arbitrary, to wind throughunreasonably long delays between Land Boards andSubordinate Boards, to be contrary to prior understandingsof the law, and to diverge from expectations ofpublic order that is regular and predictable.’ Othercommentators highlight increasing delays in processingapplications and a rising incidence of corruption inland dealings (Adams et al., 2003).While the land users interviewed display detailed knowledgeof Land Board policies and procedures, there is astrong perception that the Land Boards are ‘up there’,bureaucratically remote and promoting policies andpractices which seem increasingly out of step with thereal needs of the poor. Several users spoke of powerful

Chapter 2: Botswana41people having preferential access to the Land Boards,of procedural shortcuts and ‘fronting’ activities whichfavoured those with access to resources, and of planningand allocation practices which did not adequatelyaddress local livelihood needs.Although the Chobe Land Board seemed to managethe process of application for land reasonably well,their capacity to monitor what actually happens on theground thereafter remains weak. Stipulations abouttime periods for the development of land are frequentlynot enforced. Once allocated to an individual, ruralland is seldom purposively repossessed. Althoughkgosi Banika spoke about the shortage of residentialsites at Pandamatenga it was evident that there werea number of sites which had been occupied at somepoint and subsequently abandoned as families movedaway. Nationally, information about who owns what andthe spatial description of land parcels remains weakdespite significant investment in the development ofthe cadastre. Local land overseers remain importantrepositories of knowledge, but given some uncertaintyabout their powers and roles, such knowledge is indanger of being lost.As land in peri-urban areas and areas with tourismor other economic potential began to acquire marketvalue, it exposed the vulnerability of institutions likethe Land Board which rely on upward accountability topersons with the power to exercise undue influence.Irregular land sales in peri-urban Gaborone in the early1990s involved top ranking government officials andled to the forced resignation of Peter Mmusi BotswanaVice President in 1991 (Taylor, 2005: 4). More recentlyin Francistown, a Chief Technical Officer in the LandBoard is alleged to have colluded with businessmen inthe illegal sale of state land worth in the region of 2.5million pula (Gabathuse, 2010).But perhaps of more significance than the allegationsof corruption is the increasing inability of the LandBoards to manage peri-urban land in the face ofaccelerating urbanisation which is compounded by the‘lack of data on available and allocated land’ (BotswanaCouncil of Non-Governmental Organisations, 2002).State management and control over land allocation areincreasingly overwhelmed by informal land occupationas a reflection of popular frustration with the slow paceof formal application procedures.These problems are exacerbated by dated and increasinglyinappropriate land use planning legislation andsystems which are out of step with current planningneeds.The role of dikgosi in land governanceInitially the Land Boards began by combining dikgosiwith elected representatives to make decisions inthe new land management and governance system.However, as the Land Boards became institutionallyconsolidated, so the administrators and officialsexercised increasing administrative power and influence.A push to professionalise the Land Boards as anextension of the administrative state marginalised thedikgosi who lost influence and representation.In 2011 it appears that there are new moves to reincorporatedikgosi or their representatives onto the LandBoards, which is indicative of changing attitudes inGovernment to the role of traditional institutions in landgovernance and management. Partly, this representsexpedient recognition of their political weight in Botswanasociety and the perceived importance of keepingthem aligned with the ruling party. However it is also anacknowledgement of the resilience and adaptiveness ofthese systems and their continuing social significanceacross the social spectrum.Of particular interest is the growing challenge fromminority groupings in Botswana who assert that theinstitution of chieftaincy is one which submerged theinterests and identities of historically subject groups inthe interests of the Tswana majority. This seems to be agrowing arena for contestation as minority groups gainvoice and influence in the political sphere.Enabling women to access landindependentlyImproved access to land by women seems to be animportant achievement that reflects protracted lobbyingby civil society groupings in Botswana which influenceda favourable policy stance within the state. Griffiths

42 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambique(2010: 20) makes a compelling argument that ‘womenin Botswana today are in a much stronger position regardingaccess to resources, including land, than theywere twenty-five years ago.’ The policy of governmentenabling single women to access land in their own rightputs in place important social protections.While there is mounting evidence that women areincreasingly able to access land in their own right thesegains are partially offset by inheritance law and practicewhich frequently overlooks the rights of women.Lessons from the BotswanaexperienceThe case study highlights a number of lessons for policymakers and practitioners advocating decentralised landgovernance systems:• Social relations of power in a society shape landuse management priorities and policies and influencethe design of land governance systems.• While the Land Boards have brought the Statecloser to land users, local people’s involvement inday to day land governance has receded. Localmanagement systems have been subsumed by theadministrative state.• Central government’s retention of key powers anddecision making restricts meaningful downwardlyaccountable land governance and opens spacesfor potential abuse of the system.• The impact of the introduction of various certificatesof customary land rights and common lawleases has been to regulate new applications forland rather than to record existing land rights.Many people did not feel the need to formallyrecord their existing rights, which rendered themvulnerable to dispossession.• The role of the dikgosi in the land governance system– and perhaps in the broader society remainsunresolved. Everything points to the resilient andadaptive nature of this institution. Determining itsproper role in a democratic and decentralised landgovernance system remains a key challenge.• The decision to enable people to apply for land inother areas other than where the applicant residesopens opportunities for accumulation by those wellplaced to navigate the land allocation system. Suchallocations risk undermining local livelihoods andresource entitlement and enable concentration ofvaluable land resources in fewer hands.Figure 9: Changing roles of dikgosi in the land governance system in BotswanaDikgosi, kgotlaand land overseeradminister localsystemsDikgosirepresented onLand Board. Landoverseer retainslocal knowledgeDikgosi removedfrom a professionalisedLandBoard, Landoverseer retainedDikgosi reintegratedinto LandBoard functionsPre TLAEstablishment ofLand BoardsConsolidation ofLand BoardsNew direction

Chapter 2: Botswana43• The limited monitoring capability of the LandBoards undermines the effectiveness of land policy.• The Botswana case highlights how organisationsin civil society play a vital role in policy advocacy– particularly around enabling women to gainindependent access to land and in defending therights and entitlements of vulnerable citizens in acontext of rising inequality.ConclusionThe experiences of Botswana provide important insightsinto the complexity and contestation inherent in landgovernance and management. These contestations areembedded in policy, legislation and living customarylaw and in the power asymmetries between differentactors including:• modernising politicians, many of whom retaininterests in livestock farming;• dikgosi who continue to play an important, ifdiminished role in Botswana society;Figure 10: Assessing the balance• men and women who seek land for different usesand at different scales;• public servants and planning professionals whogovern, serve and mediate between them; and• CSOs which monitor the policies and practices ofthe State while advocating on behalf of the poor.The case highlights the challenges and potentialsimplicit in any attempt to put in place coherent andequitable systems of land governance backed by robustinstitutions which are effective and efficient.As indicated in figure 10, the current balance of forcescontinue to tip the scales against the interests of thepoor. However at the same time there remain importantentitlements and areas where real progress has beenmade.While the expansion of the tribal land area sinceindependence remains an important indicator of theState’s commitment to ensure land access to all itscitizens, the manner in which land allocations havebeen managed has failed to address deepening socialand economic inequalities in Botswana.Poor management of peri-urban landFactors limitingaccess andunderminingsecurityLand governance system increasingly favours accumulation by fewDominance of large stock ownersRangeland management paradigm has resulted in large stockownersacquiring dual rights – exclusive access to ranches andcontinued access to the commonsDeconcentrated land governance model limits local accountabilityand control over land use planningLAND GOVERNANCEEvery citizen has the right to landLand application and allocation process is freePro-poorinfluencesWomen can and do access land in their own right

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48 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueChapter 3: Madagascarby Karin KleinbooiIntroductionMadagascar, off the eastern coast of Africa, is thelargest island in the Indian Ocean. It extends over58 040 km², with agricultural production occupyingan estimated 5.2% (3.5 million hectares). Large-scaleplantations dominate the production of sisal, sugarcane,tobacco, bananas, and cotton, yet these farmscomprise no more than 200 enterprises and occupyless than 2% of the cultivated agricultural land of thecountry as a whole (Minten, Randrianarison & Swinnen,2009). Overall, Malagasy agriculture is the domain ofsmall-scale subsistence farmers cultivating mainly riceon less than one hectare (0.86ha on average) of land(GTZ, 2009). Madagascar’s economic and social characteristicsfollow most African countries’ colonial legacyof high rural poverty (Minten et al., 2009). The politicalinstability in the country further exacerbates poverty inan already impoverished country (see box below). Bothpublic and private investment has virtually slowed to astandstill, and lack of budgetary and external financingare impeding the delivery of public services, which havefallen into a poor state of affairs (World Bank, 2010).Madagascar at a glanceMadagascar is a developing country. The Malagasysociety is rapidly transitioning from rural to urban,with cities and towns expanding, not only in terms ofpopulation growth, but also in terms of space. Withrapid urbanisation, many urban areas are expandingand spilling over into the rural areas with noticeable

Chapter 3: Madagascar49Box 3: PoliticsFormerly an independent kingdom, Madagascar became a French colony in 1896 but regained independencein 1960. The country went through a period ‘economic decolonisation’ in the 60s. In the period followingindependence the country went through multiple revolts as a result of ill-conceived economic policies, coupsand republics with widely differing stances on land and governance. During 1992-93, free presidential andNational Assembly elections were held, ending 17 years of single-party rule. In 1997 Didier Ratsiraka, thecountry’s leader during the 1970s and 1980s, was returned to the presidency and adopted World Bank andInternational Monetary Fund led policies of privatisation and liberalisation. The 2001 presidential election wascontested between the followers of Didier Ratsiraka and Marc Ravalomanana, nearly causing secession of halfof the country. In April 2002, the High Constitutional Court announced Ravalomanana the winner. His administrationpursued an agenda that sought to reduce poverty and improve governance, respect for the rule of law,economic growth, and market liberalisation. ; Yet while the economy experienced growth, the majority of thepopulation remained poor under his rule. Notwithstanding, Ravalomanana achieved a second term following alandslide victory in the 2006 presidential elections, but was ousted in a coup in 2009.https://www.cia.gov/library/publications/the-world-factbook/geos/ma.html, accessed 4 May 2011Republic Of Madagascar (2005) Country Strategy Paper 2005-2009. African Development Bank African Development Fund Country OperationsDepartment. North, East And South Regions August (2005) HYPERLINK “http://www.afdb.org/” \o “http://www.afdb.org/” www.afdb.org.pdfaccessed 4 May 2011Madagascar 2010 Comprehensive Food and Nutrition Security, and Vulnerability Analysis Mission (CFNSVA), accessed 4 May 2011Box 4: Demography and economyThe Republic of Madagascar has an estimated population of 19,6 million inhabitants (2010 estimate). It ranksamong the poorest countries in the world with 69.6% of the population living at subsistence level. While there isindication of economic growth, this benefits the elite and has bypassed the masses. The incidence of poverty ishigher in rural areas where 80.1% of the population are living below the poverty line. 35% of rural households arefood insecure and 48% are vulnerable to food insecurity. 2 million hectares are cultivated by 2.5 million familyfarms: Of the total arable land, 5.03% is used for wheat, maize, and rice, (replanted after each harvest), 1.85%is irrigated and 1.02% is under permanent crops (citrus, coffee, and rubber that are not replanted after eachharvest).Agriculture contributes 29,1% of the GDP. 58% of the cultivated land area is used for rice farming. In 2003, about63% of Madagascar’s households (of which 73% of households are in rural areas) were engaged in rice production.Rice paddies often cover no more than a few square meters. According to the Directorate General of theEconomy (DGE), all these farms contribute substantially to the incomes of the majority of rural households andgenerate employment since the farming methods are still traditional and require a massive recruitment of hiredlabour.https://www.cia.gov/library/publications/the-world-factbook/geos/ma.html, accessed 4 May 2011Republic Of Madagascar (2005) Country Strategy Paper 2005-2009. African Development Bank African Development Fund Country OperationsDepartment. North, East And South Regions August (2005) HYPERLINK “http://www.afdb.org/” \o “http://www.afdb.org/” www.afdb.org.pdfaccessed 4 May 2011Madagascar 2010 Comprehensive Food and Nutrition Security, and Vulnerability Analysis Mission (CFNSVA), accessed 4 May 2011

50 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiqueencroachment on rural and agriculturally productiveland. In turn, this forces impoverished rural people tomove to the cities in search of work as limited areascan be cultivated. This situation is increasing concernsof sufficient food supply (Madagascar Position Paper,2005):… the agricultural activities growth is verysmall compared with demographic growth theproductions increased rate will be absorbed by thedemographic growth rate…(Rasatarisoa, 2009)Similar to other countries in southern Africa, the landtenure and settlement history of Madagascar hascombined forms of customary land holding whichoperate alongside the statutory Torrens system imposedby the French in a bid to protect colonial land interests.Under the principles of the Torrens system, unoccupiedor unenclosed land was declared State land, andindividuals could gain secured tenure by the registrationof land rights via a central land registry (instead ofregistering title) (Healy, 1998). With a State guarantee oftitle, all registered owners’ claims to land were enforceableagainst third parties, and owners could lay claimto compensation in the case of state expropriation. Only20% of land in Madagascar is registered and held inprivate ownership and is mainly held by expatriates andthe Malagasy elite. This constitutes 172 000 hectares ofcultivated land. An ambiguous and complex relationshiphas developed between statutory and customaryland governance and administration systems. Theremainder of the land is vested in the State and largetracts of land are held and occupied in terms of locallylegitimate customary tenure systems (Ramaroson et al,2010).The different regimes and the changes to land tenuresystems in Madagascar (outlined in Table 1) have haddetrimental effects on the Malagasy small farmers.Since the 1960s, small family farm plots (mainly for ricecropping) have remained the dominant feature acrossMadagascar, the majority of these plots being allocatedand held under traditional tenure systems, which hasleft most of the farmers with limited security of the landthey utilise.

Chapter 3: Madagascar51Table 3: The different eras of land tenure in MadagascarPeriod Land Tenure and Governance Decentralisation approachEra of the MalagasyMonarchy(1810–1896)The Malagasy monarchy had a significant influenceupon land rights. The Monarchy era was marked bydispossession and unification of all land by passingthe 1861 land act (Code des 305 articles de 1861) (Bertrandand Razafindrabe, 1997). A related law in 1896acknowledged land that was already used by inhabitants,and from the day of proclamation, land becamethe legal property of the user (Rarijaona 1967).Two types of land holding upheld: theMalagasy monarchy consolidated allland under the monarchy and consolidatedcontrol over land (Bertrandand Razafindrabe, 1997). Ancestralland was however later acknowledgedand was allowed to be inherited, withcustomary heads recognised as avested control (Healy, 1998).Era of Frenchcolonisation,modernisation ofland tenure andland dispossession(1896-1960)A new law, Article 85 de 1881, stated that undercustomary law land could not be sold to foreigners.The French Colonial Government imposed Torrensregistration system: the parcelling and individualisationof land into private holdings (le décret du février1911). The first significant move to modify the landtenure system was an economic conference in 1919,which recommended agrarian reform under the guiseof land concessions for the colonists and reservedland for the Malagasy (Rarijaona, 1967). The resultof French expropriation of cultivable land held bythe Malagasy removed almost a fifth of the 5 millionhectares under crops (Bastian 1967). Soon after theinitial period of land registration, colonial legislatorspassed another comparable law, décret du 25 août1929, introducing the cadastre to the MalagasyNation (Rarijaona, 1967). This legal step attempted toenforce the separation between legally occupied landprescribed by State law, against legitimately held landunder traditional oral or written laws. However, thiscadastral law failed to account for traditional law orthe testimonies for inhabitants of the land. The resultwas a cadastral system, which was inalienable for thelivelihoods of most farmers. Land not attributable toan individual was seen as communal lan d with legitimaterights of tenure to access and use resources,such as pasture.The land tenure system remainedcentrally controlled for most partsunder the colonial government. In1924 the changed administrationgave more power to the chefs deprovince and the local Malagasy chefsde canton (District Administrators).Under the law of 1926 (declaring allland unoccupied or not enclosed asthe domain of the State), individualscould apply to register parcels of landwithin the communal lands of thefokonolona (village councils) althoughland remained under central administration.Yet traditional rights of grazingcommons were conserved, andlineage or individual customary rightswere respected in principal. However,traditional laws were precarious,particularly when faced with expropriationof land for concessions.

52 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiquePeriod Land Tenure and Governance Decentralisation approachEra of Independenceand thenationalisation ofland(1960-2002)The government inherited a mutation of land rights.Legislation was passed to protect the rights of bothpublic and private land and the 1896 law and thedécret de 1911, regarding registration of land. Landregistration was introduced in order to further protectpublic/state lands; land not registered was regardedas state land. Henceforth, an owner had only to presentto the Government an endowment for the holdingor lot attributed by the fokonolona, under loi du 15février 1960 for private lands, without needing to followthe procedure of requisition for land registration(Gass 1971). The State continued to regard all landnot registered as land belonging to the State, whenits attempts to register customary possessions failed.In addition, in 1974, the State tried to reinforce thispolicy with the reintegration of under-utilised privateland into State holdings, and foreign concessionswere suppressed in favour of taxation of unused land,to persuade owners to surrender these areas. With thearrival of the Second Republic in 1976, many Frenchimport-export companies were nationalised undera Marxist economic policy. The impact of this led inpart, to the exodus of the French and the abandonmentof colonial plantations in the south-east, whichwere later run as state farms (Brown, 1995).In the rural areas, the Second Republic had a severeimpact on the small farming communities.Since independence, the juridicalframework has been based on Statemonopoly and private property attestedby title. Parallel to the centralisedstatutory system, Madagascar has atradition of limited village self-rule,associated with the institution ofthe fokonolona. After having beenalternately suppressed and encouragedby the authorities, the fokonolonawas officially revived in 1962 in anattempt to involve local communitiesin plans for rural economic andsocial development. In 1973 themilitary regime further entrenchedthe self-rule concept by establishingself-governing bodies at the local level.Government functionaries who wereformerly appointed were to be replacedby elected officials. However it wasnot until 1975 that the fokonolona wasgiven constitutional recognition as the‘decentralized collective of the state’.No land governance mandate wasofficially allocated to the fokonolona.Era of Landpolicy reform(2003-2011)In 2003, civil society initiated national debate aboutthe two parallel land tenure systems (privately andtraditionally held tenure). It intensified the appeal fora revised and simplified registration approach thatacknowledges land rights based on local allocationpractices, which ensured secure tenure on landheld under customary systems. A new land policyin 2005 proposed a decentralised land managementsystem. This aimed to promote secure access to landby creating a more efficient legal and institutionalenvironment. The land decree (2005-019, 17 October2005-commonly referred to as the land policy letter)was promulgated, which changed the principles of thestatutes governing land in Madagascar.The new land legislation (2005–2008)introduced reforms for the modernisationof land administrationand decentralisation of land tenuremanagement to local government(communes - communes rurales),which mandated the legal recognitionof local land rights. This new systemwas given effect by the creation oflocal land offices with representationof elected villagers and a municipalappointed official, who are responsiblefor the registering non-titled privateproperty and legitimising customaryholding of land (Burnod et al., 2011).

Chapter 3: Madagascar53The changing approach to land decentralisation in themid-2000s was necessary to address the completelyunsuitable of the system of land governance inheritedfrom the colonial period, which could not cope withthe magnitude of demand for land rights security(Teyssier et al., 2010). These systemic weaknesses weremagnified by the lack of capacity in the administrationfor land management functions, which contributed tothe despair and disillusion of users who sought to havetheir rights recognized. The country was also in needof agricultural development and rural poverty reductionagainst the backdrop of increasing competitionfor dwindling land resources as a result of the rapidlygrowing population, urbanisation, and land degradationresulting from deforestation - mainly for charcoalproduction, which many people fall back on as anoff-season livelihood strategy (Liversage, 2010). FormerMinister of Agriculture, Livestock and Fisheries, MrHarison Randriarimanana holds that:Madagascar is an agricultural country andthe second motivation for decentralisationwas to stimulate local development throughdecentraliation. In rural areas most of the peoplelive off the land and the majority of the populationlive as farmers. Both agriculture and localeconomic development needed stimulation anddevelopment.(Pers comm, 20 April 2011)Land tenure systems inMadagascarThe two competing systems of land tenure in Madagascarare customary recognition of land rights (along-standing collective recollection of and use) andthe centralised land registry, recognising registeredtitle under government statute. The state system ofindividual land titling system, based on the law of 1960which requires registration of land rights, has beencentrally managed by government. Hence state tenuresystems are governed by written laws and regulations.Communities have clearly defined rules and procedureswhich resolve civil conflicts, as well as disagreementsover access to and control of resources.By the beginning of the 21st century hardly any landregistration had been undertaken and many farmersdiscovered that their traditional land rights - and theirinterpretation of who possesses rights to land were notlegally recorded and therefore not statutorily recognised(Gezon, 1997). Similarly, numerous incidents ofconflicting and overlapping formal and informal landrights were identified. Some land under conflict hadbeen registered (usually village and urban elites) underformal state arrangements individual title but wereoccupied by informal land users under traditional landrights agreements. Owners of non-titled land werevulnerable to people encroaching on their property andto outsiders purchasing the land through transactionsat the regional land administration offices. The lack ofadministration for rural local land led to parcels of landget smaller and smaller as neighbours slowly stretchedthe boundaries of their adjacent fields.At the local level the registration of land was oftenregarded with either suspicion or indifference. (Evers etal., 2006). Land is commonly acquired through inheritance.Land may also be leased through either formal orinformal channels. These formal leases afford indefiniterights to occupy and use the land. In return for leasing,the lessee gives one-third of the harvest or somethingof equivalent value to the owner. Under customarytenure systems, informal leasing transactions, whichwere under threat of loss when individual titling cameinto play, were not officially sanctioned and commonlyconsisted of a verbal agreement giving the user rightsto the land.Customary land users experienced further increasedvulnerability with the intensification of foreign landsales from the early 2000s. Local transactions were thenincreasingly captured on paper (indicating the identityof the title holder, validation of the title by the neighbours,the estimated surface area, information on thetype of land occupancy and use, and the nature of therights). These local agreements guaranteed a first levelof security to land users. So an active land market developedout of a locally developed practice that involvedtraditional authorities, chiefs and headmen – a systemof land management from below, without notification

54 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueBox 5: Land reform problemsOver the past twenty years a huge backlog had developed with regard to the recording and processing ofland titles in terms of the 1960 law. On average, about 1 500 titles were issued per year. In 2009, over 100000 submitted requests for land titles were still outstanding. Given the limited resources and the slow rateof processing, it was estimated that the backlog would take more than a hundred years to process (Teyssier2010). The Government was faced with a mounting land tenure crisis about unregistered occupations - bothon ‘illegally occupied’ state land, as well as (and often overlapping), traditionally acknowledged land occupationwith no formal state guarantee (Healy 1998).to, or engagement by central government. While theselocal level efforts were being made to register rights,government was transacting land that it claimed formalrights to. The sale and attempted sales of occupied stateowned land to external investors led to Governmentinitated concession, such as the South Korea’s DaewooLogistics attempted deal to secure a 99-year lease on1.3m hectares of arable land -roughly 35% of all arableland- largely for planting corn for biofuels in Madagascar’sremote west). These initiatives were one of thefactors in the precipitating the national political crisis in2009, which saw the ousting of President Ravalomananaby opposition leader Andry Rajoelina who became theacting president in 2010. In reforming the land-tenuresystem, Ravalomanana unilaterally risked farmers’customary land rights and land access by seeking toexpropriate land for land deals with companies closeto the president, or large multinationals who wanted tocommercialise land in Madagascar at the expense ofthe population.Changing approaches to land rightsand governanceSome suggestions by analysts propose that traditionalland management was beginning to pull back in theface of individualisation and privatisation of land andthat the Malagasy citizens turned to the State and itsland tenure service to ensure their land rights (Pelerinand Ramboarison, 2006). Before land reform wasundertaken in 2005, formal land management was themandate of the Minister of Agriculture, Livestock andFisheries in charge of the Property and Land TenureServices Directorate (National Land Program, 2006). Thenational capacity to manage land rights was not welldeveloped and relied on the outdated Torrens-inspiredland management system, which led to inadequatecentral state management, leading to:• a weak and complex registry system (archiveshad deteriorated, land boundaries were ill definedand portions were often registered to absent anddeceased owners);• overlapping legal and customary holding of land;• under-resourced institutional authority;• land degradation (Jacoby and Minten, in Ramaroson2010);• escalation in land conflicts over rights, whichcreated a bottleneck in the courts that were alsocrippled by an ineffective, poorly framed, poorlyunderstood and out-dated legal system (Thalgott,2009; Rakotobe, pers comm, 20 April 2011); and• the lack of a strong land tenure system, andill-defined property rights in general.A gradual paralysis in registration the cumbersomesystem for issuing of titles, and the disjuncture betweenactual practice and recorded rights of title necessitatedchange in the land administration and governancesystem.The registration of land rights was re-emphasised bygovernment. At a local level, formal land registrationrevived traditional mechanisms and rules to define

Chapter 3: Madagascar55community members’ access and resource use, andacross the country, was implemented by a local informalland right certification process which recognisedrights on the basis of land use. These ‘informal’ certificates(petit papers) enabled the formalisation of landrights at the closest point to land users (Teyssier, 2010).In 2003, after a year-long public debate and calls fromcivil society to simplify the registration practices andrecognise locally developed land use rights systems, theMinistry acknowledged these practices and supportedtheir gradual recognition. A multi-representative landpolicy task force was set up and further debate followedwhich recognised communities and local governancestructures as powerful local decision-makers, that can– in the absence of effective central land management –take responsibility for the land in their areas.These local initiatives of certifying land rights speedilyand affordably provided a positive alternative to cumbersomecentralised land management. Without explicitauthority or specific skills, communities managed toimplement land tenure practices that acknowledgeownership being established ‘from the ground up’(Comby, 1998). It was agreed that local municipalitiesshould be granted new powers and functions to givelegal effect to managing land rights and undertakingbroader management of land under their jurisdiction(Teyssier, 2010).Land reformThe Letter for Land Policy of 2005 - also referred to asthe White Paper on Land Policy - resulted from taskforce deliberations. The land reform mandated bythe land policy letter sanctioned a fundamental shiftaway from the century old principle of the presumingstate ownership of untitled land. Until this shift, onlyone category of land – based on the presumption thatall land belongs to the state - was uniformly appliedacross Madagascar. The law 2005-019 (17 October 2005)modified the principles regulating the land statutes inMadagascar. From that point on, land that was untitledbut developed, cultivated and/or built upon by generationsof users was no longer considered as propertyof the state, but rather as private property. The lawrecognised de facto land occupation and land use as aform of ownership. It gave effect to land tenure reformwith the announcement of a combined centralised anddecentralised land rights recognition system. The centralisedland administration retained responsibility forthe formalisation of land by titles, while the formalisationof non-titled property through land certificates fellunder the jurisdiction of local communes (communesrurales) or municipalities.However the existence of a variety of different landholdings(based on the presumption that all land belong tothe Malagasy people), which did not fit into this definition,required that new land categories were developed(Teyssier, 2010). The official land categorisation wasamended and currently reflects four different categoriesof land:• untitled state land (mainly occupied without legalrecognition by the state);• public state land (i.e. government buildings, roads,etc);• private property (i.e. titled or cadastral land); and• protected land (i.e. forests, reserves and lakes).The results of the new legislation clarified that stateownedland now consists of land registered in the nameof a government entity or unoccupied land on whichno claims have been made. Thus the State, via the landaffairs department (services des domains), can neitherlease nor sell land that includes or encroaches upontitled or occupied land, apart from exceptional caseswhen the Council of Ministers can authorise expropriationand due compensation procedures (Burnod et al.,2011).Decentralised institutionalframework for land governanceInstitutional shiftsDecentralising land administration was a delayedresponse to the overall government drive to devolveservices to local levels of government. As noted above,the process of decentralisation in land governance

56 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiqueonly got underway with a public debate in 2003 and the2005 land policy underwriting land governance devolvedservices subsequently followed from this process. Theprocess can be summarised as followed:National Land ProgrammeIn March 2004, the Ministry of Agriculture, Livestockand Fisheries initiated the National Land Programme referredto as the Progamme National Foncier (PNF) as themain driver to improve land management in the country.. The entire land administration decentralisation processis co-ordinated under the auspices of PNF whose objectiveis to strengthen not only the administrative structureof land management, but also to provide clarity concerningrights and legal property of land, and to ensure legalsecurity on as much land as possible. Firstly, a primaryobjective of PNF in simplifying land registration is tocreate a sound environment for future investments.Secondly, PNF is tasked to reintroduce land tax. Incomederived from property tax is the least significant and evasiontax remains a significant problem in Madagascar(National Coordinator of the National Land Program, MrRija Ranaivoson, pers comm, 19 April 2011). Lastly PNFis mandated to implement the following key land reformactivities:• Restructuring and modernising land registration.Modernisation involves the digitisation of archivesand investment in equipment for land services.The Malagasy Constitution in 1994 was a precursorto the political changes in land administration.This was further underwritten by a nationaldecentralisation policy in 1994 which demandedeffective decentralisation and democratisation ofall aspects of governance.• Improving and decentralising land management.This axis involves the creation of land administrationat the commune level. Local customary landagreements could then be presented to a local publicinstitution (the municipality or fokontany¹) forcertification. These local land offices are authorisedto issue and manage land certificates according tothe legal procedures, and where local land conflictsexist they are the first point of mediation.• Renewing regulations pertaining to Crown landuse and land tenure, in order to adapt legislationto a principle of decentralisation and to regulariseformer legal status that no longer corresponds withcurrent land occupation (PNF 2008).The programme was aimed at not only lifting thecountry out of the land and property crisis, but alsodeveloping the infrastructures for local level landadministration. It gave donors an important entry pointfor supporting pro-poor approaches to land tenuresecurity. Madagascar became the first of the poorestFigure 11: Decentralised land administration process in Madagascar200320042005200620072008-onwardsPublicdebatesabout landtenure crisisParticitoryprocess inpreparation ofa decentralisedland governanceprogrammeLand Policy:National Land programmelaunchedand governmententity in charge ofland reform (PNF)establishedEstablishment oflocal land officesat commune level,as a decentralisedadministrativeauthority over nontitledproperty thatformerly belonged tothe stateLand Observatoryestablishedto monitor andpilot Local LandOffices; Issuingof 1st landcertificateExpansionof theprogramme¹On average there are 10 fokontany (FKT) and 30 fokonolona (FKL) per commune (World Bank, 2003)

Chapter 3: Madagascar57countries to sign a $110 million compact with theMillennium Challenge Corporation (MCC), a US foreignAid agency. Under this agreement the four-year MillenniumChallenge Account (MCA) was to focus amongstother issues, on securing formal property rights to landand modernising tenure information in Madagascar.The MCC’s efforts to modernise and computerise theMadagascan land administration system were regardedas much needed and were widely welcomed (Economist2005).On 7 July 2005 the first Local Land Office was inaugurated.The process of awarding land rights to untitledprivate property was outlined in Law 2006-31 – whichestablished the legal framework for the establishmentand management of the local land offices at communelevel. In February 2006 the first land certificates weredelivered (Teyssier et al 2008). However, the differentaxes of the reform did not evolve at the same speed. Anassessment of the first year’s results of establishing aninstitutional framework and implementing decentralisationhighlighted a number of concerns including:• follow-up/evaluation of the programme;• the institutional integration of the coordination unit;• the role of civil-society in the implementationprocess (he participatory process between civilsociety and government were crucial for theimplementation of the land policy);• the financing of decentralized structures; and• how to scale-up this process(Pelerin and Ramboarison 2006).National shiftsIn 2008 PNF was institutionalised under the Ministry ofLand Use Planning and Decentralisation. On a nationallevel new institutions were put in place to implementthe decentralised approach to land governance. Theseinclude the National Land Programme (PNF), and theLand Observatory. The national government providescentral authority over all land and consists of theMinister of Land Use Planning and Decentralisationand other land related departments (see Figure 1).Madagascar’s current land administration institutionalframework reflects two central pillars under theMinistry’s General Secretariat: central governmentland administration and services included under theGeneral Directory of Land Services (concerned withtitling), and the National Land Program and relateddirectories in conjunction with the Director of Reformand Decentralisation of Land Management are responsiblefor the implementation of decentralisation of landgovernance (concerned with issuing and managingland certificates). The new institutions and the changedapproached were widely welcomed because it equippeda different level of administration with mandates andit realigned government agencies to modernise landadministration. The National Coordinator of the NationalLand Program, Mr Rija Ranaivoson contextualised theproblem:One of the big institutional problems was thatland administration was regulated by differentdepartments and we needed to stabilise theinstitutions to ensure the continuity of the nationalland program that was established by the Ministryof Agriculture… [who had] no link to the regionor the commune and all the land administrationservices were centralised.(Pers comm, 19 April 2011)The director of decentralised land management pointedout this was an important shift in governance, yet hewas also of the opinion that it is a long-term processand not yet complete. Local land management had notbeen totally devolved. The process is therefore in itsearly stages and viewed as an incomplete process:Before the Government embarked ondecentralisation and land reform the serviceof registration of land was limited to the onedepartment of land services (i.e. registrationof property was compounded in one overtaxedministry). Between 2006 and 2008 new departmentshad been established to address the various aspects

58 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueFigure 12: Madagascar National Land Authority Institutional FrameworkMinister of landuse planning anddecentralisationGeneralsecretary of theministryDirector ofcabinetGeneraldirector of landservicesNational landprogramLandobservatoryOther servicesDirector ofestate and landservicesDirector of landsurveysDirector of reformand decentralisationof landmanagementDirector ofinformationModernisationof land servicesReviewing ofland lawsDecentralisationof landmanagementSensitization,communicationandtrainingsDevolved landservicesDevolved landsurveysSource: Ministry of Land Use Planning and Decentralization

Chapter 3: Madagascar59of registration of land and land management andgovernance. In the past, land surveys and landassets (real estates) were not under the sameminister; some of the services are still not underone directorate but the current processes ofreforming land management are aimed at bridgingthe institutional divides. Decentralisation is a stateproject and when all the necessary institutionsare in place this project will come to an end. Somedirectorates will inevitably disappear when itsobjectives of decentralisation has been met. A partof the institutional framework has been set up toestablish the correct regulatory bodies(Director of Reform and Decentralised Landmanagement, Mr Leon Randriamahafaly, perscomm, 18 April 2011)The fragmented departments contributed to landconflicts and lack of co-ordinated services. With thenew institutional framework, it was envisioned that allthe different departments with their different operationalmandates, would enhance efficiency and effectiveness.The revised institutional framework further includeda new regional level, to replace the former provincialministry to which the communes would now have afunctional relation as the region would be responsiblefor coordinating communes and deconcentratedservices of development at the local level. The decentralisedadministration system in Madagascar expandedauthority and mandates from the central governmentto the regions (where the land management mandatebegins). These are headed by a state representative (theformer 12 administrative provinces were absorbed into22 regions in 2004), the district (where chiefs are to beappointed by the state) and local government structures(where mayors and council members of the communesare elected) are to hold jurisdiction over local landmanagement (including traditional land allocationsformerly conducted by village heads). Communes(municipalities) are divided into villages (fokontany).At the local level there are some 11 393 villages. Thevillage is the smallest administrative unit, with a limiteddegree of self-rule under village heads and elders. Inaccordance with hierarchical regulation and control,both the region and the commune were endowed alegal personality with administrative and financialautonomy. The latter however is far from devolved in thecurrent process. Fokontanys, as administrative subdivisionsunder the control of the districts, depended oncentral government and donors to finance the objectivesof land administration, since the region is relativelyweak financially for responding to commune directives(Radison et al 2009).The most significant shift in the management oflands was in respect of untitled land in rural areas.The governance of the rural untitled land was placedunder the jurisdiction of the commune (municipality).Whereas title deeds are registered in a land register, therights to use untitled rural land would now be recordedin a commune land use plan (see Land Local Plan forLand Occupation PLOF see pages 61-62 under ‘land useplanning’).The Director of Estate (state lands) and land services,Mr Petera Ratolorantsoa comments:The (central) state no longer has directresponsibility towards rural land except in respectof titled cadastral land and disputes over lands thatare not resolved at the district level.(Pers comm, 20 April 2011)While the process of establishing devolved institutionsin all districts and communes is still incomplete, mostlocal municipalities have established decentralised landadministration services. This decentralised institutionalframework is set out in the Table 2:Local land officesLocal land offices based in the communes and accommodatedby mayors serve several villages and oftenseveral communes (where local land offices had notbeen established yet).Prior to the 2005 land reform, the communes(municipalities) had very few authoritive powersover land and were mainly concerned with basicservice delivery.

60 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambique(Mr Olivier, General Secretary of the Ministry of Where donors were involved the implementationland Use Planning and Decentralisation, pers. of the local land offices was supported for the firstcomm, 20 April 2011).two years. There is a noticeable difference in theresources of local land offices equipped, whereAll local certification processes are mandated by localdonor funding was involved. Where no donors wereland offices. For each application, a commission, madeinvolved the municipality had to subsidise theup of elected representatives of the commune andlocal land office expenses. Where municipalitiesfokonolona, establishes an official report recording thewere unable to support the wages of the localasserted rights and possible oppositions. The local landland officers, these officials did in some cases notoffice agent then prepares a land certificate (commonlyreceive their wages for a long period of time.referred to as ‘petit papier’) which has to be signed bythe local mayor. This process has made it possible for (Mino Ramaroson – Hardi-Madagascar Director,landowners to reduce their dependence on centralised pers comm, 18 April 2011)state land-administration processes, and has cut bothIn the wake of this, two-thirds of the communes hadthe costs and the time involved in obtaining legal titles.managed in 2010 to maintain their land offices, butAt least twelve major donors (most notably the MCA) funding for on-going technical support, monitoringwere involved in establishing communes, with 90% and training remain crucial if there is to be a sustainableand efficient transfer of skills to the communes.donor funding used to build infrastructure for localland offices at commune level. The local land offices Through the decentralised process, communes areare accountable to mayors who are mandated to equipped with tools to improve the land administrationappropriate funds for land office-functioning. Financing in their areas, predominantly through land tax incomesfor local land offices is still unresolved and an ongoing and land rights certification.challenge. Local land offices in the 257 communes thatreceived external financing had to take charge of their While donor funding was essential to setting up localown costs when international donors retreated from structures, the sustainability of local land offices dependson partial or full state support became inevitable2009 and extension/technical support services werenot yet well-established. Therefore since 2009, governmenthas been forced to give financial and technical funding to supplement state support was then narrowlywhen the donor funding came to an end. The additionalautonomy to most local land offices.and problematically linked to the generation of localTable 13: Decentralised institutional frameworkAdministrative subdivisionLand management responsibilityCentral governmentMinistry of land and other land related departmentsRegion (former provinces) Co-ordinating role for the actors in decentralisation process –exactly what it should be has not been clarifiedDistrictDevolved land management system (land management services)CommuneFokontanyCommunal land management at municipal office/local land office(decentralised management system)Elected local recognition committeeSource: Ramaroson et al ILC/PLAAS 2010

Chapter 3: Madagascar61Local land offices have four main functions: they legally empower local communities to defend and protecttheir land rights; they strengthen the role of local government in land management; they provide maps thatcan help to identify land targeted by investors, competition for land use and potential links between economicactivities (agriculture, cattle breeding, wood harvesting, etc.); and they provide a first recourse to authority inresolving conflicts (Burnod et al 2011).land taxes and the income generated from local landcertification. However, the incomes of local land officesvary and can be a problem, where payments for the certificationprocess are not easily recoverable and propertytaxes are not properly enforced by the communes.Therefore, the main revenue source for local land officesis generated from the state fiscus. The fiscal allocationreceived by the commune was upgraded from 9 millionAriary (AR) (US$45 299) to 12 million (US$60 399) in the2011 financial year for supporting the commune to fundthe local land offices. The salaries of the two local officeofficials (around 150 000 AR (equivalent to 74US$) permonth/per official - meant to be covered by the revenuesraised by land tax and certification) = are increasinglythe commune’s responsibility although the majorityof the communes do not have the financial capacityto cover salaries. However, communes did not receiveclear budget prescriptions from central government andincreased allocations to the communes’ budgets werenot always allocated to local offices. Therefore mostcommunes did not know that the increase in the budgetwas supposed to benefit the local land office management.They were further confused as the communesreceived this increase in state funding irrespective ofwhether they had an existing local land office or not. Theresult was that many local land officers were often notpaid for long periods.Only a few communes can manage the local landoffice and most mayors argue they need budgetarysupport to manage and operate local land offices.All communes independently decide on the costs ofland certificates for the recognition of land rights.As an elected candidate many mayors do not wantto alienate their electorate in fear of not beingre-elected and costs are reduced downwards to thedetriment of the potential revenue from these landtaxes. Income from land certificates is also periodic.In rural areas many people only applying for landcertificate and pay for the certificate fees duringharvest periods when they generate incomes.(Director of reform and decentralized landmanagement, Mr Léon Randriamahafaly, perscomm, 18 April 2011).Land Use PlanningIn 2005 a national land use plan was developed to helpshape regional land use planning or ‘schéma regionald’aménagement du territoire’ (SRAT) for the proposedfifteen year period. The SRAT extends a mandate tothe commune to ensure land use planning or ‘schémad’aménagement communal’ (SAC) and leveragesinteraction between regional and local levels. Eachcommune or municipality needs to develop a five yearcommunal development plan or ‘plan communal dedéveloppement’ (PCD) as a guideline for developingits respective land areas. This process is not yetinternalised and uniformly used by all the communes.Only a few of the communes have their respective landuse document available or are in a position to updateit. Where municipalities have the five year communaldevelopment plan, the funding for implementing theprojects inside the commune development plan remainsa hindering factor. Additionally, not many mayorshave the technical capacity to perform such tasks.As an additional tool to assist communes the LocalPlan for Land Occupation (Plan Local d’OccupationFoncière - PLOF³) was introduced. This tool, developedthrough participatory local land parcelling, can assistin creating the commune development plan. Theboundaries of the certified plots are recorded on thecommune PLOF. This acts as a record of the legalstatus of each plot, its title, and area and by default, thelocal land office under which it falls. The Local Land

62 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueTable 5: The research areasRegion District Commune Category ofNo. of Population AreascommunevillagesAnalamanga Ankazobe Fihaonana 2nd category (rural) 18 18 600 382km²Analamanga Ambohidratrimo Ampanotokana 2nd category (rural) 29 15 757 115km²Figure 13: The research areasHardi was involved in implementing the second local land office in Miadanandriana in Madagascar. The modelof the local land office based on Hardi’s and CFA’s (Cellule Foncière Alaotra: land centre in Alaotra region)experiences helped the National land programme to promote and further develop local land offices. Theimplementation of the local land office in Miadanandriana helped to cement the following steps in setting uplocal land offices:• Constructing and building the office;• Data collection on the local land use/occupancy through the computerising of data as a way of recordkeepingand to assist in planning;• The data assisted in drafting a land use and occupancy plan or ‘Plan Locale d’Occupation Foncière’(PLOF);• Local land officials or agents were trained on land statute laws;• Implementation of citizen mapping (which is a participatory mapping on land use and local land ownershiprecognised by the community); and• Developing the local land office to look at land as a tool for local development and how to use the localland office service for local development: help in collecting land taxes, in land planning and integrateddevelopment schemes

Chapter 3: Madagascar63Figure 14: Analamanga RegionFigure 15: Ankazobe districtFigure 16: AmbohidratrimoOccupation Plan is illustrated using satellite images oraerial photographs of plot layouts, or older technologysuch as topography, according to reference marks suchas roads, rivers, unique trees, rocks, flood banks or riceplantations (Teyssier, 2010).PLOF gives to the mayor a global view of thearea of land occupation in the commune and thisis the plan that frames the commune planningfor development of the commune. PLOF is alsoan asset for the mayor to discuss in his relationwith the state and the area that can be allocatedto investment, not that the mayor can authorszeit but a dialogue with the commune and thestate can be facilitated on this basis. Howeverthe PLOF requires technical infrastructure andis not available for all the communes of thecountry because of the costs involved to purchasethe programme and training on it. It is reallyexpensive to update the PLOF because of the lackof computerized baseline data, plans that aredamaged and unfinished land surveys.(Former Minister of Agriculture, Livestock andFisheries, Mr Harison Randriarimanana, perscomm, 2011).³Nearly 300 PLOFS have been developed so far.

64 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueLocal case studiesCommune ruraleFihonana and Ampanotokana RuralCommunesTwo rural communes in the Analamanga region werevisited to examine the decentralised land governancesystem in action.Ankazobe and Ambohidratrimo districts were visited,which are situated in the Analamanga region extendingthe North of the capital, Antananarivo. The Analamangaregion is divided into eight districts and 134 communes.It has an area of 17 563 km² and a total population of 3324 887 inhabitants.Interviews were conducted with respondents from thelocal municipalities, the local land offices and the localrecognition committee. Interviews were arranged andset up through a local land rights non-governmental organisation- Hardi Madagascar - based in Antananarivo.Hardi played an instrumental role in equipping the localland office officials with technical skills through trainingand information dissemination, building understandingof the law and addressing of local tenure disputes.Respondents were asked about the current situationregarding land access and security of tenure undercustomary land ownership, which was now legislatedin legal security in the communes of Fihonana andAmpanotokana.The two sites for the field visit were selected on thebasis of their land context: land holdings are divided accordingto inheritance rules with share cropping and anon-going legal process to access land by legal individualland titling. Ampanotokana commune is relatively wellresourced commune, while Fihonana lacked similarlyadequate resource.The two communes included in the study are locatedalong the national road which goes to the north westernpart of the country. Ampanotokana (the commune) inthe Ankazobe district is situated alongside the nationalroad, approximately 30km from Antananarivo. Fihaonana,situated on the Ambohidratrimo district, is furtherinland and is approximately 60km from Antananarivo.The informality and uncertainty of land ownershipprevalent today means that poor families in thecommunes have difficulty in transferring property andare reluctant to invest in improving the land they farm.In addition, many of the poor inhabitants lack otherpersonal assets to enable investments, even if they arewilling to do so; and inadequately recorded land assetscannot be applied as loan collateral in formal financialinstitutions. Consequently, producers cannot accesscredit to purchase supplies to expand production andreach domestic or export markets. In addition, theland registration system through the central systemwas an expensive and slow paper system which waslargely inaccessible to people living in rural areas, anda reluctance to register land parcels are evident. In thecommunes, kinship relations continue to underpin localsocial relations and land holding strongly reflects thecultural identity of sharing land and inheritance. Thereis no regulation on the size of land you may hold as longas you can prove occupancy. Land parcels are oftendivided between roads that act as boundaries. In bothcommunes the average landholding is approximately2- 4hectares. The customary land in the communesis generally comprised of holdings and commons.Holdings consist of rice paddies or agricultural land,individual trees, and irrigation canals. The commonsinclude pastureland, water resources (in someinstances irrigation canals), and selected forest lands.Underexploitation of agricultural land is evident in bothcommunes. Less than 7% of the territory from the

Chapter 3: Madagascar65communes is cultivated in ther districts, although theareas have potential production development (Radisonet al, 2007).The livelihood foundation in the region is predominantlyagriculture, including rice cultivation in lowland. Thisis also closely reflected in Fihaonana and in Ampanotokanawhere the most important crops are rice andpotatoes, while other important agricultural productscultivated are maize, beans, cassava and sweet potatoes,some eucalyptus and wood for charcoal. Villagershave only one rice harvest per year. In general the ricefields vary from 15ha in the lowlands to an average of3ha of highlands. Some granite exploitation also takesplace. In Fihaonana the established mineral watercompany is a large employer through the exploitation ofthe Eau Vive natural mineral water sources. Ampanotokanais in close proximity to the capital and inhabitantsare supplementing livelihoods with employment inAntananarivo.Commune/Local governmentAt the beginning of 2007, the United States government’sMillennium Challenge Corporation (MCC)and the World Bank made funding available for theestablishment of 250 communes and supported 90%of the operating costs to pilot the new system (Teyssier2010). Before the shift towards decentralisation, no landmanagement was conducted on the local municipallevel. Yet 80% of land disputes were at municipal level.The central role of the mayor under the new systemof decentralised services is therefore to ensure goodgovernance of land and hold accountability for it. Thereare currently 312 local land offices for 1 410 municipalitiesin the country. The mayor Louisette Septor-Rasendravololona of Ampanotokana, also suggests thatthe new land management statutes mandate mayors totake up this role:Mayors may be political appointments but this landmanagement is not a political issue and mayorsalso need to be trained. Not all the mayors haveall the information and lack the comprehensionof decentralised land management and this is anunhealthy situation. Mayors need to work withthe agent and control the land and make sure thesustainability of local land offices is resolved. It isimportant to provide the basis of decentralised landreform. The mayor may exit but the local land officeand agent is a long-term institution so that theprocess of monitoring the work and enforcementis an important factor. To have the systemsustainable and continuous it is not only financialand resources constraints that hamper certain localoffices but also capacity strengthening, not only atthe local land office level, but also at the municipallevel. In terms of the decentralised level it is notjust about the local land office service deliverybut it is about the municipal approach to land inits jurisdiction. There is still a need to change theattitudes in respect of local land managementand to sensitise citizens because people are stillcautious and doubting the balanced value of titleand certificate.(Pers comm, 21 April 2011)Rice paddies in the communesFruit stall

66 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueLocal land officesThe two communes have one local land office eachfor their areas. The state of the local land office variesdepending on the financial resources at their disposal.It was evident that the local land office in Ampanotokanais far better equipped than the local land office inFihaonana. Local Land Offices (LLOs) are the main toolswith which the communes deliver land certificates topoor farmers. Mayors play a significant role in the stateof affairs of not only the land management, but alsothe local land offices. The more dynamic the mayor,the greater the likelihood that the financial situationwill be more positive as the mayor, apart from the fiscalallocation, leverages resources from other sources suchas international donors. The mayor in Ampanotokanaengages Swedish donors to contribute to the operationof the commune and a portion of the funding is insertedLocal land office in Fihaonana has noelectricity and depends on a generator.into the operations of the local land office. Thus theinequality between local land offices is a remaininglegacy from donor influence. This is also evident in thebroader roll--out of the local land offices, where donorswere involved in establishing the offices. These appearto be far more equipped and resourced with technologyto record land pockets, develop a land use plan andkeep it updated through computerised data recording,etc. Some offices are under-resourced and this isevident in Fihaonana, and both communes are overburdenedand responsible for larger areas where no landoffice exists yet. Both offices are unable to complete therecording of land pockets and further develop land useplans as a result of incomplete cadastres.The scarcity of resources often hampers the work of thelocal land offices.The Ampanotokana office is a wellequippedofficeLocal land official in Ampanotokana with a map of land use in the area in thebackground

Chapter 3: Madagascar67Local land officer and recognition committeeEach local land office employs two officials, commonlyreferred to as agents by the commune. These officialsreceive the applications via the local recognition committee.Depending on whether land is certified or not,they would do the recording. When the application isregistered it is referred to the commune with a requestto the municipality to recognise the application.Once the application is recognised, a public notice isissued at the commune and displayed in three visibleplaces in the village:Local recognition committeesThe Local Recognition Committees in the villages in thetwo communes combine the local governance at thevillage level (where the chiefs are elected) with the stateinstitution at a communal level (where the mayors areelected). These committees (18 in Fihaonana and 29 inAmpanotokana) adjudicate the local land rights of thevillagers under their jurisdiction. These are recordedin a Local Plan for Land Occupation (PLOF) setting outcertified boundaries and land use (Teyssier et al 2008).In both communes, members consisting of both menand women are elected at the fokontany level, which isthe lowest unit recognised by government and includesland user associations. Their election is based ontheir extensive knowledge of each of the areas in theirrespective villages and they have the ability to do thework because they are recognised authorities in theirvillages. The committee has a one year term.However since election some local recognitioncommittees have not had a re-election.(Mayor Louisette Septor-Rasendravololona,Ampanotokana pers comm, 21 April 2011)After the elections the local recognition committeereceives a once-off training by the PNF officials. Trainingincludes information about the land law, how thelocal land office operates, and their role in the landcertification process. Further active knowledge transfercontinues as issues arise and with the support of theappointed local land officer. The primary role of the localrecognition committees is to monitor the land ownershipat the local village level, justify ownership with theirknowledge of the land in the area, i.e. that land belongsto applicants, record land pockets in respective villages,and mediate at local level if there are land and boundaryconflicts.

68 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueNotice board at the local land office inFihaonanaNotification of application forcertification at the Ampanotokanalocal land officeLand applicationLand application has increased substantially in thecommunes although continued sceptism remainsabout whether the process will provide ‘real rights’. Theprocess is however an open and inclusive process:The land recognition committee is advised to dothe recognition process. They are on the field todo the survey (measuring the land, register theboundaries and what is on the field). This is writtenin a report. When they come from the field they givefifteen ) days for people to give opposition, andstart the application for land certificates. If thereis an opposition they call the committee and sendit directly to district councillor. When they receiveapplication they are obliged to put notice up atLocal Plan for Land Occupation inAmpanotokanathree different places. They don’t have linkageswith the district. If one person doesn’t accept thereport, that individual has to take it to them. Ifthere is no devolved service in this district, theyhave to go Antananarivo.(Local land officer, Ampanotokana, pers comm, 21April 2011).The application for certification involves a number ofcosts.You have to pay fee for the land because it is stillstate land because it is 500AR [US$0.25] per acre[0.4 ha)’(Local land officer, Ampanotokana, pers comm, 21April 2011).Fees payable to the local land office for applicationdepend on the size of the land being applied for:• From 0 -5 acre [2.0ha]costs 2000 Ariary (AR)[US$0.25]• 6 -15 acre [2.4-6.0ha] costs 3000AR [US$1.49 ]• 16 - 99 acre [6.47-40.06ha] costs 5000AR [US$2.49 ]• Above one ha costs 10 000AR [US$4.97]. (However,the majority of applications are for smaller plots of± 50 acre [20.2ha], in line with the dominant smallscale subsistenCE farming in the village areas).

Chapter 3: Madagascar69An additional amount of 25 000AR [US$12.44] isfor the recognition process and a further 30 000AR[US$14.92] is applicable for the land certificate andnotice fee. There are periods where no certification ofland is requested. This falls together with the harvestseasons. Hence for many inhabitants payments of feesare problematic. While this varies, communes do makeconcessions and applicants are allowed to pay the totalamount over 3-4 periods (normally in line with harvestperiods).This is a rural area and people depend on incomesduring the harvest season. The affordability ofpeople to do the certification is an endless problemand we are looking at options so that it is moreaccessible but people still say they can’t afford it.Even if it is free, people will still complain about it.(Mayor Louisette Septor-Rasendravololena,Ampanotokana, pers comm, 21 April 2011)Land certificationIf applicants wish to apply for the certification of land,the following should be presented to the local recognitioncommittee:- An identity card.- Explain the location where land parcels shouldbe certified (who are the neighbours, boundaries,etc.).- Produce relevant documents that can verify andjustify that the land belongs to the applicant,including documents that say that the parcelsrightfully belong to the applicant by inheritance(e.g. documents written and signed by all theheirs, a document to prove that he is really theson/daughter/family member of the deceased andthat the land belonged to the deceased, and evensometimes, the death certificate of the deceased),and receipt of taxes that were paid on the land.- The sale contract signed at fokontany or communelevel if the land was bought.Certification is the main administrative role of themayors who - mandated by a certification act - ensurethat all procedures are respected and followed beforecertificates are issued. To deliver a land certificate,local land officers have to receive the application forland certification, register the application with thecommune, and ensure community representationtakes place through local recognition committees. Thisentails physical visits to villages.Communes appropriate budgets (generally the perdiem of the recognition committees and other expectedcosts). The local land officers described a system ofreporting to mayors and using the specific monitor toolsof weekly meetings to oversee the process (these arenot always possible in Fihaonana as the responsibilitiesof the mayor often interfere with this compliance tool)and report updates.The report stipulates:- when the recognition will be;- who will be in recognition committee;- notice about decision;- when the notice is going to be issued; and- the agent writing a report about conflict andprocess.The mayors also monitored the duration of the process,which concluded following the recognition processwhen the land certificate is signed and granted, theland parcel is registered and the land certificatereleased. In Ampanotokana and Fihaonana the PLOFis electronically updated because of access to thetopographic software.Land certificates allow for immediate formalisationof transactions such as land sales, inheritances andleases. However the holders of land certificates areprovided with opposable rights by third parties (i.e. ifan opposing title exists on the land) or where the stateimplements expropriation (Teyssier et al 2010).The process of local land certification has delivered,despite the challenges. Previously undocumentedtransactions are now recognised land transactions(Ramaroson et al, 2010):

70 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueLand certificate: coverLand certificate: insideIn Fihaonana 220 applications were filed and the localland office has delivered 77 land certificates since thebeginning of 2011. At least 30 of these were certificationsof land applied for by women. In Ampanotokana,67 certificates were delivered from 91 applicationsbetween 2009 to mid-2011.Customary recognitionIn both villages local village heads traditionally heldvirtual control over land distribution. Villagers reliedupon the opinions of the elders (mostly men) that landshould benefit the whole community. The division andattribution of land were not documented and legitimacywas derived from local honour agreements:Villagers would meet and discuss land requests andafter conclusion hands were shaken and the dealswere done.(Local recognition committee member atFihaonana, pers comm, 2011)This reliance on oral agreements is problematic whenit comes to being recognized under modern legal landregistry systems (Evers, 2006).Under the new legal framework clarifying existingrights in their diversity and giving them legalrecognition helps with the conception of localland rights. Land certificates now endorsed bylocal land offices are therefore viewed as a longterm legal innovation, but for the innovation tocontribute to rural people’s livelihood it is alsoconditional to ensuring and crafting regulationinstitutions that are relevant to the local people.(District chief, Mr Daniel Rabary, per comm, 18April 2011).The former first president of the Supreme Court(honorary title), Mme Rakotobe, who was instrumentalin framing the new statute, confirmed that the newframework gives recognition to customary practices inthe law:Land registers at the local land office

Chapter 3: Madagascar71Figure 14: Types of local level recognition of land rightsSocial recognition which is the most common form of land holding recognized in customary practices withaspects integrated into the reformed legal framework (law 2005-019), through the establishment of the localrecognition committee (composed by elected and recognised elders and leaders of the community, municipaladvisors and an administrator)Verbal agreement with witnesses: a type of verbal contract between two persons, used in case of for exampleleases. However this is a problematic claim as witnesses tend to rarely guarantee the transaction and vouchfor its legitimacy if and when it was necessary for the social recognition of ownershipDocumented right: land certificate/petit papiers (little papers), signed by two parties at commune level,represent ownership of land for people at local levelThe law specifically recognised the rights ofindividuals and groups to unregistered land and sowe’re seeing the concretisation of land by the userswhile it gives weight to the ancestor notion [of landholding]. The law on land certification recognisesthe rights of people who exploited land on acustomary basis and provided procedures for landregistration which had previously been consideredstate land.Hence the decentralisation of land managementand the supporting legal framework recognisescustomary ownership of land which is based onlocal, ancestral custom rules. Locally recogniseduse may now be turned into official land certificatesand through the local custom system ancestral landcan now be protect (sic) against those from outsidethe kinship of the village grouping who wants (sic)to alienate land. Therefore you can decrease thelevel of conflict like there was before. The law of2006 however does not permit grazing land to beregistered extending this recognition to grazingland.(Pers comm, 20 April 2011)However, at a local level as portrayed by the commune,these where contrasted by a different and scepticalresponse from those who stand to be affected bylegitimising the customary laws as described by thelocal land recognition committee in Ampanotokana:Villagers view rights as derived from the ancestors;people therefore believe they already hold‘ancestral’ title. Hence for them, the ancestralcustomary rules and practices concerning landownership offer sufficient security and protectionand therefore they do not see the need for anyofficial proof, particularly where there is a threatthat their customary rights may be at risk of beinglost where overlapping claims have been made.Observing similar patterns in the two communes, Evers(2002) suggests that this may illustrate that people seethe downside of land registration, - besides the uncertaintyof inadequate provision of information aboutland registration on a local level where land had alreadybeen in use by the same families for generations - as asuperfluous and expensive tool, which even after landregistration has been completed will only lead to addedcosts due to a land-tax levied by the state, which may beunaffordable to people.There are many villagers who do not see the needto certify their plots. They may be scared or theyare concerned about the costs involved. There aremany poor people in our village and they live fromthe fields.(Local recognition committee member, Fihaonana,per.comm, 21 April 2011)

72 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueWomen’s access to landThe process of decentralisation holds many benefitsbut there are still gaps with regards to women’s accessto land. Customary land tenure practices traditionallyresulted in land being passed from father to son.Daughters and other relatives inherited land only in theabsence of sons. Although current law states that maleand female children have equal rights of inheritance,it is still common for land to be given to male children(Huntington 1988). Women’s access to land reflects thetradition of the various regions, e.g. in the highlands, acertain number of women may have the land jointly withhusbands and there are more women with individual titlesin the central island (four regions). The significanceof customary practices, which are deeply rooted, andwidely accepted by local population, shapes whetherand how women access land. Matrilineal inheritanceexists within some groups. The law N° 68-012 of 1968on Inheritance stipulates that both daughters andsons have the right to inherit equally. Where no clearwill exists to indicate inheritance succession of land,it is passed without distinction of sex in a hierarchicalfamily order - i.e. to children; followed by grandchildren;to fathers, mothers; brothers and sisters; children ofthe brothers and sisters; uncles and aunts; cousins;spouses and if the family does not exist, it reverts backto the state) (Ramaroson, et al 2010). With a rapidlygrowing rural population, equal inheritance of land mayincrease land fragmentation as land parcels will haveto be further divided to ensure equity. Therefore, equalinheritance is often viewed negatively (Evers et al., 2006;Freudenberger and Freudenberger, 2002).The common practice is that, despite the legal recognitionof women’s tenure security, most rural womenaccess land rights through their male relatives, such astheir husband, father or brother and where they havebeen benefitting through inheritance, there is reluctanceto take charge of the responsibility of land,andcommonly such land is left in the care of brothers whenthey move to the husbands’ villages. Nonetheless, in theevent of widowhood or divorce, women retain the rightto reclaim the land nonetheless (Leisz, 1998). Wherewomen have land jointly with husbands, Ramaroson, etal (2010) highlights that:In terms of patrimony and access to land andconcerning women’s rights in the civil code, it isspecified that the legal and customary marriagesare recognized by the law. In the law N° 67-030 onDecember 1967 modified by the one N° 90-014 in1990, it is stated that in case of divorce, the wife andhusband will get the same share. However, becauseof ignorance, the traditional division in thirds ismaintained.The decentralisation process has made an impact onwomen’s land access and there is a noticeable increasein women’s access to land. Of the 45 000 papiersissued by June 2009, 6 100 (21%) were registered inwomen’s names (Teyssier, 2010). Both Fihaonana andAmpanotokana have been proactive and progressiveon the women’s statute and their rights on land at thecommune level although the application of women’sland rights varies from tribe to tribe. Migrants fromothers part of the country, such as the southern tribes,still implement their own customs in their householdsand smaller communities and there are still womendisadvantaged in security of tenure and accessingland independently. There is, however, evidence in bothcommunes that the customary practices have evolvedand the women are able to access and own land equallythrough the inheritance process.Gender equity has no link to land applications butwomen do apply. There are many more but not allof them have the necessary official documents suchas their identity documents.(Local Recognition Committee Member,Fihaonana, pers comm, 2011)Women are still reluctant to certify their rights asa result of custom, but we do see women comingforward to claim certification, mostly out of fear oflosing land to someone else in the family.(Recognition committee member, Ampanotokana,pers comm, 2011)However, there is still a need to inform some traditionalauthorities about the recent land reforms and statutorychanges described above, and a great need to inform

Chapter 3: Madagascar73women about their rights; provide the necessarytraining to negotiate for these rights and encouragewomen to make use of the local land offices (Teyssier,2010). The dominant practice of land access andsecured tenure is still viewed as men’s business andbetween the majority of couples, lands are certifiedand registered in husbands’ names (Mayor LouisetteSeptor-Rasendravololona, Ampanotokana, pers comm,21 April 2011).Challenges of decentralised landmanagement highlighted by thecase studies and institutionalrepresentativesCapacity of communesAccording to the directorate on land management,land management at the local level should ideally befunded 100% by registration fees and land taxation.However, the majority of the rural communes lacksufficient finances, contrary to the expectations thatwhen the land management functions are decentralised,communes would become more self-sufficient.Currently over 70% of the resources of communesare allocated from central government which meanscommunes need to supplement funding with municipalrevenues. Yet intensifying their own revenues remainsmarginal for most communes. There is a constantattempt to balance the revenues with the constituencyand the payment of revenues becomes a ‘politicalplayball’. The commune councils decide individually onthe fees for certification and consider the affordabilityof this process and re-adjust it as deemed necessary.Land tax incomes are still very low and systematicallyunder-recovered. This under-recovery is also politicallymotivated. In some communes mayors will retain lowproperty taxes to retain their constituency. For decentralisationto work, revenue mobilisation at a local levelis crucial or else there will continue to be a substantialdifferences between communes, and these local institutionswill not be able to upscale local delivery (WorldBank 2004). The challenge of increasing the revenue onland is a contentious issue and under regular debate:The overhaul of this situation needs a shift inattitude and sensitisation on the level of citizenshipand their obligation. Some of the revenue raisedfrom taxes and fees is invested in developing landuse plans (PLOF), demarcate the land categoriesand pave the way for local economic development.So in essence it hampers local development.(Mr Eric, pers comm, 2011)Rice paddies in Ampanotokana

74 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueThe local land offices thus remain under-resourced.This is a constraint for local land officers who strugglewith, amongst other things, mobility and getting tocommunes to be present in land meetings at the villagelevel.We have to go to villages to meet with therecognition committee by foot or bicycle. Some ofthe villages are 25-30 km from the offices. Similarlywhen the recognition committee needs to comehere, there is not always transport available (localland officers).(Fihaonana and Ampanotokana, 2011)Judge Mme Rakotobe warns against the political powerat play at a local level, in particular the politicisation ofmayoral powers (Pers comm, 20 April 2011). Similarly,both local officials and national officials pointed to thedanger of this in land administration service and theincentives to mayors that enable them to hold on topower and authority.Most official respondents concluded that for implementationof decentralisation to be effective, laws atthe local level should effectively mandate total landmanagement at commune level, devoid of politics. Inaddition, the capacity of local level communes’ landcompetence varies and needs different intensity ofinvestments to bring all of the communes on par. Theresponse from central government is to not completelydevolve all aspects of local level land administration andthey are reluctant to give up all their powers over land.These points have also been highlighted by the Directorof Reform and Decentralised Land Management, MrLéon Randriamahafaly 2011) and was amplified by theMayor of Ampanotokana:The decentralised policy would have to reconsiderthe training of the mayors, the chairpersons atmunicipal council level and other councillors thatare involved in arbitration of land. They need tobe capacitated, and supported to meet objectivesor effectively apply their powers to opposeregistration where necessary. At each level and foreach group needs training and approach.(Mayor Louisette Septor-Rasendravololona, perscomm, 21 April 2011)Unresolved land categoriesMunicipalities have full or total autonomy over land intheir jurisdiction with the exclusion of non-titled privateland. In Ampanotokana 4% of the land is titled, the restis non-titled in excess of 100km². Of this, 30% of theland is in a cadastral process while 20% is reservedfor conservation (forestry). According to the mayor,Louisette Septor-Rasendravololona,There is a specific landscape that gives thecharacter to this commune and they want topreserve the character of the commune. This maycreate tension as some of the land that should beunder conservation is already under usage and thecommune may have to relocate those land users.(Pers comm, 21 April 2011)In contrast to Ampanotokana, the picture is relativelydifferent in Fihaonana, where the biggest challengeis the uncertainty of more than 70% of the land in thecommune ,due to incomplete cadastre processes. Ofeighteen fokontany, eleven villages have been includedin the cadastre whereas in the remaining seven villagesland was part of an unfinished cadastre operation in1935. While the cadastre is significantly out-dated, theland that has been surveyed cannot be managed bythe local land office, and is still regarded as state land.The commune, with the assistance of Hardi, requestedthe national land authority to be granted a part of thisland to be managed under the commune jurisdiction.However the process is still on-going and remains anunresolved issue. The seconded biggest challenge inthe commune is the private titled land still owned byexpatriates and colonial industries, many of whom leftwhen they relocated back to their countries of origin.(Pers comm, Mino Ramaroson Director Hardi, 17 April2011).Land and boundary conflictsNumerous land conflicts emanate from the local leveldue to overlapping rights. These include villagers

Chapter 3: Madagascar75(commonly referred to as migrants) who urbanised andobtained land in the cities while retaining a hold on landin the villages. Families of such migrants or villagersaccess large parts of land held in this way through localnegotiations by obtaining a ‘petit papier’. The first pointof response to conflict is through the local recognitioncommittee who embark on a recognition process ofland rights verification based on the customary oral history.When the conflict is not resolved in this manner,the local recognition committee reports to the local landoffice agent who is mandated to write a report, and andanother meeting is scheduled to verify the accountsof all the parties involved. The local land officers try tomediate the land conflicts in the same way.. Followingthis process the mayor writes a municipal judgment:‘not a decision it is more than that’ ( Mayor LouisetteSeptor-Rasendravololona, Ampanotokana, pers comm,21 April 2011).The mayor further elaborated that in the event of noresolution, the conflict is taken to the council membersof the municipality and the designated councillors makea judgment and decide who will win or lose or they tryto negotiate a win/win situation to both parties.The local court is led by chairperson of themunicipal council, two councillors and the localland agent who becomes the secretary. It’s alocal court and the chairperson makes sure thatno one is linked to the people involved. There isno mediation but only judgement based on thedocument of the land officer and the subsequentmayor’s conclusion. The process is fair and just andthe chairperson has to be impartial and avoid links.The chairperson is obliged to give a judgment andinform the mayor of his/her decision (judgement).All the involved parties are given 20 days to makean appeal at devolved service level (district) andif there is an appeal the parties go directly to thedistrict court.(Pers comm, 21 April 2011)The idea behind the decentralisation process is toease the land certification process so we all have torespect the process. It is a strategic approach thatis good for the rural person; it gives willingness toaccess the service at local level and avoid the timeburden.(Mayor of Ampanotokana, Louisette Septor-Rasendravololona pers comm, 2011).In the event that conflicts are not resolved at communelevel the process is moved to the district; if still unresolved,the dispute and legal process around the landconflict go to a court of law.MigrantsLocally, migrants are regarded as those villagers whohave migrated to the urban areas, most often thechildren of the villagers. They often constitute thecurrent affluent portion of the population who left thevillage for fulltime, secured employment i.e. professionals,government employees, teachers, etc. Whileland had been allocated to these migrants (‘absenteelandlords’) through the customary inheritance system,they have often never, or rarely occupied the land andvillagers - either without permission or through localnegotiations - occupied the land. As a result of their absence,migrants are regarded as ‘outsiders’. Tensionsbetween local villagers and so-called migrants havesystematically increased with the introduction of localland offices. Gradually, more migrants want to securetheir land and register their land rights (Fihaonana, LRC2011). Local occupiers’ security of tenure is threatenedby this and these are the majority of locals who take theopportunity to secure their rights. Their claim is basedon the Malagasy tradition that by their proven occupationthey have been ‘(i) taking possession of the fruitsof the land; and (ii) bearing agricultural risk’ whichaccording to their view ensures their legitimate accessto the land, as direct cultivators (Bellemare, 2010).If the conflict is resolved, following the 20 day period,the mayor will sign a land certificate with the judgementof the council chairperson.

76 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueLocal judgments over landThe mayor provides the council chair with training on how to make judgements over land disputes under theirjurisdiction. Currently 50 judges are looking at the local courts and how they are operating to assess how thiscan be formalised at local level. When there is any ambiguity in judgements, the mayor will intervene to helpin clarifying issues.Training and informationdisseminationIn general, all the respondents describe the laws asgood laws and achieving the majority of respondentswere positive that the objectives of the land decentralisationprocess are broadly met in its implementation,but since these laws are in the implementation stage,jurisprudence and adjustments are needed. Thereforethe practical implementation of laws needs constantsystemisation. The legal framework is flexible and youcan make certain amendments as long as the principleson which the decentralised legal system isfounded are adhered to. For everyone to keep up withimplementation and its lessons, continued training isneeded.The lack of capacity and the need to build andstrengthen capacity at local level is widely recognisedas enhancing the local level responsibility and accountability.However a retention problem exists withland agents at the local offices who, after they receivedtraining and ,built their experience, leave for greenerpastures.The idea is they have to stay for longer and theland program needs to assess compulsory terms toretain the skills longer.(Mr. Zo Ravelomanantsoa, pers comm, 19 April2011)The modernisation process started at a central levelto ensure the land registry is updated, while at thislevel efficiency is enhanced with technology, locallevel needs to achieve the same level of efficiency ona broader base, but this is made difficult becauseresources and skills are not evenly distributed at thecommune level. Judge Mme Rakotobe argues that landmanagement decentralisation is in an implementationphase and lessons are to be learned particularly wherelegal clarity is needed:For change to be effective private state land needsclarification of laws. What is vague in the law is thestate’s right to sell land even if there are people livingon the land (Pers comm, 20 April 2011.Cost of decentralisationSignificant expectations were raised about the systemof land titling in Madagascar, yet various role playersand analysts articulated concerns about affordability.For a system of formal titling to be effective in ruralMadagascar it would have to be inexpensive, yet costeffectiveto be worthwhile (Jacoby and Minten 2005).The co-odinator of the National Programme on Land describedthe challenges of the costs of decentralisation:At a central level the land reform process by PNFis currently 100% donor funded. The currentfunding situation is not sustainable and requiresapplication for new funding supplements atintervals. At the lowest level it is a local serviceand if the management of the commune is notsustainable, the service will not be sustainable.The central state funding remains a necessity. Withmayor powers there is also a need to integrate thenotion of good governance. It also includes at locallevel and local authorities to manage their land andit is easier at each level to manage their spaces andland planning.(Mr Rija Ranaivoson, pers comm, 2011)The mayor commented:With its inception land offices were funded by thedonor with the goal to later pass the costs to themayoral budget. It is the mayor who signs the land

Chapter 3: Madagascar77certificate and his/[or her] budget comes from thereserves from land taxes.(Mayor Louisette Septor-Rasendravololona,Ampanotokana, pers comm, 21 April 2011)The former Minister of Agriculture, Livestock and Fisheries,also raised concerns about the cost-implications ofthe decentralisation process:The Ministry made a good progress when theycreated a decree that the land office cost was taxeligible, but subsequently changed that with adecree that land offices must be subsidised bythe government. Therefore the sustainability wasabout land tax income not about donors. Becausethe NFP was supposed to support communesin their local land office demands for at least 1-2years. In 2005 the principle donor MCA retractedtheir funding and you can see, depending onthe capacity and skills of mayor to manage hiscommune, many land offices are still operating,albeit not all effectively and efficiently. The truthis that the programme has slowed down becausethe state doesn’t have resources to move forward.Creating sustainable revenue to contribute tothe operation of land office land is possible whenyou have an annual tax every year. It needs to beconsidered as a citizen’s obligation. This has notyet happened.(Mr Harison Randriarimanana, pers comm, 20 April2011)There is a big debate in ministry about the sustainabilityof land office and the local management of land andwhether it should be regarded as a public service or asa revenue source. At a local level the cost of land registrationand the time had been reduced. Yet communesrely on the revenue from the land office which allows forthe payment of salaries and increased operations.Mr Petera Ratolorantsoa, Director of Estate (domaine:state lands) and land services suggested:It is necessary to go back to the drawing boardand we need to plan according to resources. Onthe one hand we have a situation where; to get aland certificate one must apply so the work of theland offices depend on demand but sometimesdemand is not very big. We have to accept thatsome people will hold on to customary belief andnot certify land for various reasons. The donorissued a lot of funding into the process so the trustand communal ownership of the process is oftennot there. The country should now customise theirown programme and approach to decentralisationto ensure sustainable ownership.(Pers comm, 20 April 2011)The Deputy Director in the National land Programme:Modernisation of land services, further suggested:MCA implemented the work, not onlygiving directives and plotting the process ofdecentralisatio,n, but were also involved in theactual implementation. It should have beenmeeting the communes to allow them to articulateand establish their needs. Yet it became a top-downprocess and there is no integration of the processby the commune.(Mr Tiana Razafindrakotohary, pers comm, 19 April2011)The former Minister of Agriculture, Livestock and Fisheries,Mr Harison Randriarimanana, 2011, commentedcritically:Decentralisation at local level has been startedwhich is a good basis. But there wasn’t a politicalwillingness to do the decentralization furtherdown to the village level because it stopped atthe commune level. The fiscal decentralisationshould have gone to the region but it didn’t so thestate and the ministry still hold on to its power.All the decisions are centralised at national level.When you look closely at it you have a reversedpyramid. We have a policy which is not effectivelyimplemented at a local level and in a few years wewill have another bottleneck.

78 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueKey lessons and reflectionson decentralisation of landgovernance in MadagascarNational land tenure transitionThe Madagascar land context required a transition inland tenure - with the strong demand for land titles(close to half a million requests for titles annually),limited capacity for deliverance services (in the last 10years land management staff at central level declinedby 25%) and an insufficient budget allocation. Only 330000 titles had been issued since the creation of the landadministration in 1896 and only 1 000 titles had beendelivered in the last 15 years before decentralised landmanagement in 2005 (Teyssier, 2010). By 2005, Madagascarwas left with only 20% of the occupied land titleddue to: the lack of familiarity with land laws; complexityof the individual registration process which requiredseveral steps (24 in total); long delays which oftenspanned several years; approximately US$350 neededto obtain a title; and the bureaucratic requirements forhigh level validation with too many actors involvedThe increasing demand for land services could nolonger be held by central government alone. Whilethere had been stagnation at a central level, at a locallevel there was an active land market and customarypractices prevailed in the allocation of land and thevalidation of land use.Lessons learned• A major change to the legal framework took placethrough a participatory process.• Decentralisation of land management wasconsolidated and received a favourable receptionfrom the public opinion.• The reform benefited from the converging supportof political leaders and financial partners. At anational level, there is better streamlining of institutions,policy and implementation processes.• The Ministry of Land ensured that sufficient supportwas in place, both institutionally and fiscally,to roll out decentralised services to the lower level.• Yet at the end of 2008, the Government still neededto resolve land rights involving former colonialplantations, which it wanted to use to developagribusiness plots for foreign companies and todiversify the agricultural economy.• The level of control over resources has beenretained, despite the devolution of some services.• The cost of decentralisation was underestimated.• High cost of initial investment: cadastre, imageryand IT equipment cannot be sustained and appliedacross a broader base.• Donor involvement was necessary but also had anegative impact on the process of decentralisingland services. Most donors initiated it as a projectand not a process.• Legal constraints, linked to the maintenance ofold land rights and the status of domains such asregistered indigenous reserves and unachievedcadastral operations, which most communes stilldo not have the expertise to engage with effectively.• The difficult relationship that exists between thenational land administration and the local landoffices, with the land offices putting pressure onthe national fiscus and the tensions between powerof control (at local level) and power holding theresources (at national level).• The process is viewed as an institutional processfrom which lessons would have to be learned.• Strengthen the on-going process of land reform byconsolidating and expanding the network of localland offices.• A need to modify land fees and land taxes, and theway in which they are distributed between localgovernments and the State.Local land administrationThe process of decentralised land management cameabout after a process of political and social mobilisationby the poor and civil society at large, with concerted

Chapter 3: Madagascar79efforts to influence political decision-making aboutland rights and land ownership. Before the process oflocalising land management, customary authoritiesplayed a decisive role in land allocation.The demand was to reconcile the legal and what wasunderstood to be legitimate, to merge laws that arerarely acknowledged with common practices of ‘littlepapers/informal land certificate’ which acknowledgedwith common practices what had not been legallyrecognized to by the central land management. Theexpansion of land authority within local governmentsprovided a basis for taxation. Local land governanceand the forms of public participation in the economic,political and social life of the commune have alreadyhad tangible and visible impacts.Lessons learned• For the commune it increases their value, withincreased power, but more work and challenges.• The local actors who can respond are close towhere land needs are identified: the recognitioncommittee, the representative from the commune,and where necessary, the village chief, and all theneighbours and affected villagers are considered.• However, certification costs are still an obstacle forthe highly destitute land users, even at the locallevel.• The communes’ boundaries are not clearly delimitedas a result of the deterioration of land recordsand landmark plans and this makes it difficult forthe communes to identify the land covered by oldtitles, identify their areas of jurisdiction and agreeon the delimitation of boundaries which will enablethem to manage the land in their areas. It has beendifficult and costly to obtain complete satelliteimages of some of the areas to create detailed localland-occupation plans (PLOF).• There are rural people excluded from the process:those without birth certificates and therefore noidentity cards, are not allowed to apply for landcertificates without the necessary documentation.• Collecting fees for certification is an incentive tolocal government to increase the revenue of thecommunes. This aspect still remains a difficult andcontentious issue and varies from commune tocommune. The study indicates very little improvementin property tax yields.• The lack of communication and lack of knowledgeof the law may lead to ineffective implementation atthe commune level.• At commune level there is an opportunity for themisuse of the power given to mayors, i.e. in casesof land conflict the procedures are clear but oftenignored in an effort to prevent the social impact ofland disputes.• Lack of knowledge may also lead to corruption andexploitation of villagers.• Weak ownership of the process by certain localland offices. Weak capacity of the communal staffto manage the land offices.Outcomes• Recognition of customary land rights and greatersecurity of land.• A new mode of recognising land rights at the locallevel is accessible.• Depending on the region villagers are now able toapply to access credit with their land certificates.• The level of land conflicts has decreased. For manyMalagasy citizens the land certificate does not onlyprovide secured tenure, but also removes the riskof conflict.• There is a considerable reduction in resources andtime, both on the part of land administration andlocal beneficiaries.• From the 24 processes involved in registeringindividual title, the current certification processcovers a minimum of 2 stages, with the averageissuing time reduced from six years to 3.5 monthsand the average prices paid by applicants havebeen reduced from US$ 507 to US$ 24.

80 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueConclusionMadagascar’s process of land tenure transition isa lengthy and statutory process, managed from thecentre through a National Land Programme in itsattempt to deliver prerogatives to the local level in landmanagement. While levels of deconcentration anddelegation are evident in local land management, thechallenge that remains is the effective local governanceof land by the local communes and their abilities tomanage their local land affairs without dependenceon the central government. While there is a legal andregulatory framework to implement governance overland at the local level the regulatory framework doesnot fully ensure accountability and transparency at locallevel. Notwithstanding the structural impediments tothe decentralisation process, there are many positivelessons from the selected case studies which point tothe potential of the decentralisation process.This study provides insights of the role of civil societyin leveraging public participation and land reform frombelow. The voices of local government emphasise thatmore can be gained from further simplifying arrangements,especially in respect of land surveys and clearerfiscal relationships to ensure sustainability of landservices at the local level.In conclusion, the study highlights voices from centralofficials, policy makers and implementers suggestinga need for a greater transfer of the competencies tolocal communes, particularly to increase the limitedlocal revenue collection, and to provide continued andincreased support across rural communes until governanceover all local land has been strongly established.The case study highlights the continued need fordeveloping strong local institutions to implement landgovernance in Madagascar, further reducing centralstate control over local land matters. While the state, inits efforts to devolve certain functions of land governanceto the local level, meets this commitment in part,advancing local democratic land governance hingeson further developing conditions to enable democraticlocal governance of land in Madagascar.ReferencesBASTIAN, G. 1967. Géographie de Madagascar. Paris,Nathan.BROWN, M. 1995. A History of Madagascar. GreatBritain, Markus Wiener Publishers.BERTRAND, A. & Maminiaina, R. 1997. La ProblématiqueFoncière à Madagascar. CIRAD CERG2R.Madagascar.BELLEMARE, M. F. 2009. ‘Sharecropping, insecureland rights and land tenure policies: A casestudy of LacAlaotra, Madagascar,’ DevelopmentPolicy Review 27(1):87–106. Access on12 April 2011 at: http://onlinelibrary.wiley.com/doi/10.1111/j.1467-7679.2009.00437.x/pdfBURNOD, P., RIVO, A. R., AND TEYSSIER, A. 2010. ‘Foreignland claims and acquisitions in Madagascar:What reality? What regulations on the ground?’International NVAS Conference on ‘’Africa for Sale:Analysing And Theorizing Foreign Land Claims AndAcquisitions, 28–29 October, Groningen University,The Netherlands.COMBY, J. 1998. “La gestation de la propriété”, inLavigne Delville P. dir. Quelles politiques foncièresen afrique noire rurale? Réconcilier pratiques,légitimité et légalité, Paris, Ministère de la[Coopération/Karthala].ECONOMIST, THE, 2005. ‘Aid to poor countries: MCChammered’. The Economist, 25 June 25, p.59.EVERS, S.J.T.M. 2002. Constructing History, the Betsileoin the Extreme Southern Highlands of Madagascar.Leiden: Brill.EVERS, S.J.T.M., VAN DEN HAAK, M., LINGNAU, I.,LOKHORST, N., PRONK, C. 2006. ‘National Legislationand Local Practices: Competing Jurisdictionsin Land Management in Madagascar,’ in: Taloha16-17, accessed on 11 May 2011 at: http://www.taloha.info/document.php?id=336

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82 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueRADISON, R. C. 2005. Analyse de fonctionnementdu périmètre de Mangamila –Mémoire de DEA,Antananarivo: ESSA, Université dAntananarivo.RADISON, R. C., RAMANANARIVO, R., AND RAMA-NANARIVO, S. 2009. ‘Strategy for sustainabledevelopment by land in the Central Highlands ofMadagascar,’ Territorial Approach From The CommunesTo The Region In Analamanga. WashingtonDC: World Bank.RAMAROSON, M., RAMIARAMANANA, D., RAVONI-ARISOA, L. 2010. ‘Promoting Women’s Access toand Control Over Land in the Central Highlands ofMadagascar,’ Rome: International Land Coalitionand Bellville: PLAAS.RAMAROLANTO, R. 1989. L’accès à la terre en droitrural Malgache. Revue internationale de droitcomparé 41(3).RANDRIANARISOA, C. AND MINTEN, B. 2005. ‘Gettingthe inputs right for improved agricultural productivityin Madagascar: Which inputs matter and arethe poor different?,’ Paper presented during theworkshop Agricultural and Poverty in EasternAfrica, June 2005. Washington DC: World Bank,Cornell University and FOFIFA.RARIJAONA, R. 1967. Le Concept de Propriéte en DroitFonciér de Madagascar. Paris.RASATARISOA, M. 2009. ‘Prospective territoriale etcommercialisation des produits agricoles urbains _Cas du deuxième arrondissement de la communeurbaine d’Antananarivo,’ Mémoire d’Ingéniorat Antananarivo:ESSA Département Agro-Management,p 53 and Annexes.2011 at: http://siteresources.worldbank.org/INTIE/Resources/475495-1202322503179/LandDecentralizationinMadagascar.pdfTEYSSIER, A., RAHARISON, H., AND RAVELOMANANT-SOA, Z. 2008. ‘Land reform in Madagascar, oropting for local competence,’ in P. Munro-Faure,et al. (eds) Land Reform, Land Settlement andCooperatives, 34–49. Rome :FAO, accessed on 12September 2010 at: ftp://ftp.fao.org/docrep/fao/010/a1047t/a1047t00.pdf (accessed 12 September2010).TEYSSIER, A. RAMAROJOHN, L., ANDRIANIRINARATSIALONANA, R. 2010. Des terres pour l’agroindustrieinternationale ? Un dilemme pour lapolitique foncière malgache. Echogéo n°11,décembre 2009/ février 2010. http://echogeo.revues.org/index11649.htmlTHALGOTT E. 2009. Land Reform In Madagascar,Conference By Eilat 2009 – Israel, Fig WorkingWeek, 3-8 May 2009.WORLD BANK, 2004. Country Brief Madagascar http://go.worldbank.org/1XJIO19Z90 Accessed 10 April2011.WORLD BANK. 2003. Madagascar Decentralization.Report No. 25793-MAG. PREM I. Southern Africa,Africa Region. http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2003/12/09/000160016_20031209150657/Rendered/PDF/257930MAG.pdf Accessed 13 June 2011WORLD BANK. 2010. Madagascar Country Brief. http://go.worldbank.org/D41QD46W10TEYSSIER, A., RATSIALONANA, R., RAZAFIND-RALAMBO, R. and RAZABINDRAKOTO, Y. 2009.‘Decentralization of land management in Madagascar:Process, innovations and observations ofthe first outcome,’ Paper presented at World BankConference on Challenges for Land Policy andAdministration, 14–15 February, Washington DC.Washington DC: World Bank, accessed on 30 May

Chapter 4: Mozambique83Women paralegals trained by the CFJJ/FAO programme talking to community leaders in Manhica,Maputo Province, on land law and development questions. Photographer – Ruben VillanuevaChapter 4: MozambiqueChristopher Tanner*IntroductionThe development of the 1997 Land Law is recognised bymany observers as an exemplary model in democraticand participatory law making (Tanner 2002), which initself establishes the importance of a decentralised andinclusive process when it comes to policy making andlegislative development (De Wit et al 2009). The landmanagement and administration system launched bythis innovative legislation, including the recognitionof customarily-acquired rights and the mandatory‘community consultation’ is also widely regarded as aninnovative and progressive model for other countries,embracing participation and negotiation between localpeople and outside interests, and providing for thedevolution of important land and natural resourcesmanagement functions to ‘local communities’.Other new legislation has in principle given localpeople a strong role in decisions over development andplanning at local level. These laws include the 2003Local Government Bodies Law, the 1997 EnvironmentLaw with its related regulations on EnvironmentalImpact Assessments which require public hearingsand provide for legal recourse if local environmentalrights are jeopardised, and the 2007 Territorial Planning* These case studies were originally written for a forthcoming World Bank publication (Tanner 2011)and have been adapted for the specific purposesof this chapter. The author gratefully acknowledges the permission of the World Bank to use this material here.

84 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueLaw which gives a role to local communities in thedevelopment of ‘District Land Use Plans’ or PDUTs, thePortuguese acronym.In an ideal world, all of these measures would ofcourse have been conceived and implemented withina single blueprint or master plan that would ensuretheir coordinated use and mutually reinforcing usein pursuit of a more democratic, equitable, and justsociety. Notwithstanding the evident goodwill of manyMozambican policy makers and political leaders, thisis unfortunately not the case. In fact, it often seems asif each of these ‘decentralisations’ has been thoughtup and implemented by one ministry or department,with little regard for other decentralisation or devolvedmanagement mechanisms developed in other departmentsor sectors.This chapter looks at the impact of this lack of clarityand the competing forms of ‘decentralisation’ on localpeople, using two case studies, and other researchmaterial produced in recent years. The conclusion isthat there is much in Mozambique that is commendable,and which if properly used, could result in asignificantly more democratic, equitable, and economicallyproductive process on the ground. However,understanding how to make all the various forms ofdecentralisation work together is a major challenge forpolicy makers and civil society alike. This is especiallyimportant at a time when major economic interests arelining up to gain access to local land and the issue ofdecentralisation and local community rights is evidentlysomething of a constraint when fast-tracking largeinvestors onto local land.Decentralised land management atcommunity levelThe fact that most land administration in Mozambiqueis handled by customary structures of one sort oranother was recognised at the time of the 1995 NationalLand Policy which duly includes recognition of allcustomary rights as one of its key principles (Tanner,2002). These customary structures could in fact beseen as the land administration of the country, with theformal state land administration being something of abolted-on extra, which is there to respond to the needsof a very limited number of land users. These structuresare by definition ‘decentralised’, at least in terms of thenumber of places and people in positions of authority– there is neither a ‘national’ nor provincial customaryauthority.Whether or not these customary structures are reallydecentralised, internally, viz-á-viz local families andindividuals, is another matter that will be discussedbelow. But at this point it is useful to set them againstthe other land administration, the state system, headedby the National Directorate for Land and Forests withinthe Ministry of Agriculture, and the provincial Servicesof Geography and Cadastre found in the capital ofeach province in the country. Even after many yearsof investment through a range of external assistanceprogrammes, the system is weak and under-resourced,and has great difficulty in dealing with even the fewthousand or so land holding units (parcelas) that are onofficial records.These two factors together – the continuing predominanceof customary land management and theweakness of the public land administration - are thereason why the 1995 National Land Policy recognised‘the customary rights of access and management ofthe lands of rural resident populations - promotingsocial and economic justice in the countryside’ (Serra2007:27). Today these two factors are still importantfeatures of the land administration landscape. Thesubsequent 1997 Land Law¹ then formally merged thisrecognition into the overall system of land managementand administration, through several key articles. First, inArticle 10, it determines that ‘local communities’ can betitleholders of the State allocated Land Use and BenefitRight (DUAT). Furthermore, all community members areco-title holders, sharing the collectively-held DUAT andalso having the right to participate in how these rightsare used and disposed of by following detailed provisionsin a specified section of the Civil Code.¹ Law 19/97 of 1 October. The 1997 Land Law is now officially translated into English (see the government website www.portaldogoverno.gov.mz) andsix local languages (available through the Centre for Juridical and Judicial Training (CFJJ) in Matola, Maputo Province.

Chapter 4: Mozambique85Secondly, in Article 12, the Land Law states that theDUAT can be acquired in three ways :• occupation by individuals or local communitiesaccording to customary norms and practices(historically or culturally acquired rights);• occupation in ‘good faith’ (occupation that isunchallenged for ten years); and• a formal request to the State for a new DUAT.In this way, rights acquired by custom and those thatare allocated by the State structures are legally recognisedas DUATs, and each right is identical to the othersin terms of its legal weight and validity.Thirdly, in Article 24, local communities ‘participatea) in the management of natural resources; b) in theresolution of conflicts; c) in the titling process [withreference to the issuing of new DUATs]; and d) in theidentification and definition of the limits of the landwhich they occupy’. The same article then adds that‘in exercising these responsibilities’ they ‘use, amongstother things, customary norms and practices’ (Serra,2007:21).The entity which exercises these rights and ‘managesnatural resources’, the Local Community, is a circumscribedterritory defined in Article 1, Number 1 of theLand Law:A grouping of families and individuals, livingin a circumscribed area at the level of a localityor below, which looks after common intereststhrough the protection of areas of habitation,agricultural areas, be they cultivated or in fallow,forests, sites of cultural importance, pasture,sources of water, and areas for expansion.This definition of the local community is tied to theunderlying notion that rights are acquired by occupation,by in effect establishing the basic parameters of‘occupation’, not in a direct physical sense – cultivationor a field or the presence of a village – but by referenceto the social and agro-ecological system through whichthis ‘grouping’ occupies a given area. It follows thatonce the limits of this system are identified (and ifnecessary, registered), it can incorporate a very largearea indeed, including land in fallow, communally usedresources like forests, wetlands or grazing, and even‘areas for expansion’.These articles, taken together, effectively integrate bothcustomary rights and the management systems whichallocate and administer them, into the formal landadministration of Mozambique. In one sense, the linearound the Local Community is the point at which thetwo systems merge. Indeed, it can be argued that withinthe Local Community, local leaders exercise a key roleof the State, insofar as they allocate what are in effectDUATs to local families and individuals resident in thecommunities, and subject to their specific ‘norms andpractices’. This is indeed a highly devolved system,and if effectively implemented, should give local peopleconsiderable control over who can come into theirmidst and gain access to and use land.Defining the local community on thegroundA Local Community is identified on the ground (andthen registered in the Cadastre) through a highlyparticipatory process called ‘delimitation’ (Tanner et al.,2009). Neither delimitation nor registration of the acquiredrights that are proven and ‘delimited’ in this wayis mandatory. However it is recommended in prioritysituations, including when a new investment project isplanned in local community areas (Technical Annex tothe land Law Regulations, Article 7). The process alsoconfirms the legal personality of the community in aconcrete and tangible form, including formally registeringthe name of the community. A ‘local community’can subsequently enter into contracts with third parties(such as investors) and open its own bank account.The average cost of a delimitation is around US$7 000per community (CTC 2003). This might seem high, anda good delimitation will take some time, but it doesprovide low-cost protection for many households atonce and for all the members of a community. Delimitation,when well carried out, is also a powerful tool inthe process of effective decentralisation, as it identifiesand consolidates a local representative structure that

86 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquemust include 3-9 people chosen by the community andwhich must include women. These ‘Land Committees’(or ‘the G-9’ to use a popular NGO term) do not haveto be customary leaders, but chiefs are often presentor delegated younger lineage members who may beliterate and can deal more effectively with the outsideworld. The process has a strong legal empowermentand civic education impact, by making communitiesmore aware of their rights and helping them to evaluateand plan how to use their resource base. It also offersthe additional advantage of providing a perfect opportunityto draw up a local land use plan, and makingcommunities aware of both the potential of their landfor their own or investment use, and the fact that theycan negotiate with outsiders over access to this land.It is important to note that the Mozambican model doesnot divide the country into ‘community’ and non-communityor ‘commercial’ areas. Indeed, if the definition inthe Land Law is followed to its logical conclusion, thenthe whole country is ‘occupied’ by local communities,This de jure occupation – which by law translates intothe presence of customarily-acquired DUATs in mostareas – does not block investment into these areas. Theso-called ‘open border’ model of a local community wasformally adopted in a national conference in 1998, andestablishes the principle that land inside a delimitedcommunity (or inside a non-delimited one for thatmatter) is available to investors and others from outsidethe community, subject to a community consultationbeing carried out and the District Administrator thendetermining whether or not the land request should goahead.The fact that an investor must carry out a communityconsultation is a strong, practical affirmation of thedevolved management powers given to communitiesunder Article 24 of the Land Law. Notice however, thatthe District Administrator in fact has the final say – thecommunity is consulted, but in theory it can be overriddenif the Administrator feels that there are goodreasons for doing so (a project being ‘in the nationalinterest’, for example). Although a clear community ‘no’would be hard to ignore, this is nonetheless a clear limiton the effective level of power decentralised down tocommunity level.New rights requested from the stateand community consultationsWhile Local Communities continue to manage and administerthe vast majority of land rights in Mozambique,the State system does have the key and sole responsibilityfor allocating new DUATs to investors. These can benationals who have no social ties to the community inwhich the land they want is located, or foreigners.Land for investors has always, in effect, been removedfrom customary control through formal survey andregistration, going back to colonial times. The 1997law continues this approach. Investors looking forland must find an area that has already been takenout of customary jurisdiction – today these are oldState farms, previously colonial plantations, and other‘properties’ with their origins in the colonial era - or theymust find the land they want in areas that are very likelyto be community-managed under Article 24 of the LandLaw.While land that is already alienated from communityjurisdiction is mainly a government-investor affair,the Land Law obliges investors to get the approval oflocal people in both situations. This is also importantbecause many old properties have been abandoned foryears, and have been progressively re-occupied by localresidents, who always claim either a previous historicalright, or a right acquired by ‘good faith’ occupationaccording to the 1997 legislation. The reality thereforeis that in nearly all cases of new investment projects,the investor must initiate a process that begins witha community consultation, and if successful, will endwith them being allocated the DUAT which initially washeld by the local community. Note however that there isno legal guarantee that the process will result in localapproval if local people need the land themselves or donot like the look of the investor.The ‘community consultation’ process is laid out in theLand Law and its Regulations. It is short on detail however,and many consultations are in fact poorly carriedout, with unfortunate consequences for subsequentrelations between locals and their new neighboursand for the real benefits which should accrue to the

Chapter 4: Mozambique87community (Tanner, Baleira et al., 2006). Concerns overthe consultation process have resulted in new legislationrecently being passed which strengthens certainaspects, but also weakens the decentralised poweraccorded to local people under the original legislation.Nevertheless, the procedure is still best understoodin terms of two nested levels of engagement with thecommunity.At the first level of engagement, the principal objectiveis to ensure that the land being requested by theinvestor is ‘free from (local) occupation’. However, mostland is not in this state, if we accept the system-baseddefinition of the local community and its subsequent‘occupation’, even of apparently unused land. Theprocess then moves on to a second level of engagement,which accepts that the land is occupied and isthen intended to secure access to the land through aconsensual process that determines a ‘partnership’ betweenthe investor, and the ‘holders or rights acquiredby occupation’, or in other words, the local communityand its members (Land Law Regulations, Article 27).This process is overseen by the public land administrationand the local government of the District(or Districts) in which the land is located. All DUATrequests must also be accompanied by an investmentproposal or project, approved by the appropriate sectorministry and the Centre for Investment Promotion ofthe Ministry of Planning and Development. But mostimportantly, the application must be accompanied by aDistrict Administration statement about the communityconsultation. This should say either that the land is ‘freefrom occupation’, or that the local community will cedeits rights for an agreed package of benefits. Withoutthis, the process cannot go ahead.Decentralisation of PublicAdministrationSince the Land Law was approved in 1997, Mozambiquehas also been going through a long process of administrativedecentralisation, formally set into motion bythe 2003 Local Government Bodies Law. This legislationhas introduced a series of measures to devolve certainadministrative powers down to district level, and tocreate local representational bodies in the form ofDistrict and Local ‘Consultative Councils’. This processhas also included complementary legislation, Decree15/2000 of 20 June, which approves the way in whichlocal government bodies and ‘community authorities’interact, the latter being ‘traditional chiefs, village secretariesand other leaders legitimized as such by theirrespective local communities’ (Serra 2007:197). TheDecree then goes on to say that ‘once legitimized’ (i.e.selected by the community), the ‘Community Authorities’are ‘recognised by the competent representativeof the State. They then have a kind of go-between rolebetween the State and their ‘local communities’. Onthe one hand, they represent community interests indealings with the State, and on the other, they act asa conduit through which state programmes can bedisseminated at local level and implemented by localpeople.The district figures centrally in current governmentpolicy as the pole of development, and a number ofother important initiatives have been introduced topromote this vision of locally driven development.Most significant amongst these has been the LocalInitiatives Budget, popularly known as the ‘7 millions’,which for several years now has been allocating 7million meticais per year (about US$250 000 at currentexchange rates) to every district in the country. Thismoney is managed by the District Government andis available to both local government and the privatesector for projects to address local infrastructure needsand boost the local economy.As noted above, the ‘Community Authorities’ are notnecessarily traditional leaders. In rural areas however,they tend to be the senior chiefs who head the variousclans and ethnic groups that are found acrossMozambique. In most areas these chiefs are calledregulos, a term dating back to colonial times, but insome northern areas they are called ‘sultão’, or sultan,reflecting the stronger Arab influence in the north ofMozambique. The areas under their control are thusregulados or sultanatos, respectively. Most of thesesenior chiefs are men, and while they are clearly more‘decentralised’ than for example, the public land administration,the way in which they exercise their role is not

88 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquealways that decentralised in practice. Even in smallercommunities questions can be asked about how muchinternal ‘consultation’ actually goes on between theseleaders and those they are meant to represent.This is very clear, for example, in a recent researchstudy of the consequences of a delimitation andcommunity consultation process carried out ahead ofa large forestry plantation initiative in Niassa Province.In spite of the best intentions of the investors to followthe law and work with local people, it has since becomeclear that the level of internal consultation, especiallybetween the ‘community authorities’ and the moredistant villages within their territory, was very weak.Conflict and tension are now very evident as the investorsmove in to clear local land and plant their trees(Akessön et al., 2009).The community leadership in the administrativedecentralisation context is therefore a very differentcreature to the locally elected ‘G-9’ or group of communityrepresentatives who act for the land-rightsholding community in matters to do with the Land Law.To begin with, Community Authorities represent a ‘localcommunity’ that is in fact much more of a political oradministrative constituency, with its own specific legaldefinition: ‘the groups of populations and collectiveentities found in a unit of territorial organisation,namely a locality, administrative post and district’ (Serra2007:198). Thus the Community Authority is a publicfigure, doing public things, and may be quite removedfrom the ‘Local Community’ that is the DUAT holder inan area that is subject to a new land claim. Their publicrole is indeed confirmed by their formal recognition ina public ceremony presided over by State officials, atwhich they are presented with special uniforms, andvarious badges and other symbols of the State and oftheir office. This formal recognition also compromisestheir independence viz-á-viz the State, and the extent towhich they are truly able to represent their constituents.A clash of decentralisationsThe distinction between public or administrativedecentralisation and the land management / land rightsdecentralisation of the Land Law is extremely important,and often – indeed nearly always – overlooked. There isa clear tendency to mix the two together and for publicagents – the cadastral service assisted by the DistrictAdministration - to do ‘community consultations’under the Land Law only with ‘Community Authorities’recognised through Decree 15/2000. Indeed atone point, cadastral service officers were explicitlyinstructed by a previous National Director to carry outconsultations only with the Decree 15/2000 communityauthorities ² . In reality however, the Community Authoritiesare not necessarily representative of the rightsholders of a particular land-occupying Local Communitywhere a project is proposed. This is a significant sourceof conflict in areas where local people feel that they infact have not been consulted before investors move in(Tanner, Baleira et al., 2006).Government has also clearly been concerned by thefact that Local Communities in the Land Law contextare apparently in control of very large areas, which arenot wholly utilised and under more intensive forms ofproduction. It is also evident that many in governmentdo not understand the principle of the ‘open border’and are concerned that delimited land with a community‘Land Committee’ is somehow taken out of thepot of land available for investors. Delimitation, and thewhole panoply of devolved land management underthe Land Law is then seen, not as positive elements forequitable development, but as obstacles to investmentand to getting national resources into production.One result of this has been recent new tinkering withthe legislation, introducing revisions to Article 27 ofthe Land Law, for example, giving what is effectively adecisive role in the community consultation process tothe members of the Local Consultative Councils createdunder the 2003 Local Government Bodies Law. These ofcourse, are primarily the Community Authorities chosenunder Decree 15/2000 and formally recognised by theState. Therefore, although the Councils are nominally‘representing’ local interests, they do not include thereal leaders of the rights holders affected by a proposedproject or investment scheme, and in fact introduce a² Personal notes of the author, who attended the meeting in question.

Chapter 4: Mozambique89considerable element of State control or at least oversight,into the whole ‘community consultation’ process.Rather than easing tensions and making consultationsmore effective, these changes risk worsening thesituation.Changes of a similar order have also been made inother Land Law regulations, such as revisions to Article35, to increase the control over the State over the communityrights registration process, and a new recentMinisterial Diploma (No 158/2011 of 15 of June),whichdetails how consultations should be carried out. Noneof these changes has involved the same level of consultationwith civil society and stakeholders that characterisedthe original Land Law process and all have causedconsiderable and negative reaction amongst NGOs andothers who have worked to implement the decentralisingand democratic elements of the Land Law since itwas approved.Case studiesMozambique still offers an excellent policy and legalframework for resolving the complex relationshipbetween local people with customary land rights andinvestors seeking land for new projects, often with statebacking. Its rights-based and participatory approach,with a significant element of devolved managementto local level, allows both negotiation and consensusbuilding. Implementing this approach has not beeneasy however.The two case studies below illustrate the potential forsuccess and failure when the model is implemented,especially when a weak State system has the primeresponsibility for making it work. To paraphrase the titleof the Niassa study referred to above, the question isnot ‘to decentralise or not’, but rather it is ‘about how itis done’.The Mahel Game Farm 3The Mahel area in Maputo Province is close to theborder with South African and is a sparsely populatedregion where local people survive through a mix ofrain fed agriculture and livestock with grazing overlarge areas. In 1999, the National Directorate forForests and Wildlife (DNFFB) chose the area for a Foodand Agriculture Organization of the United Nations(FAO)-supported Community Based Natural ResourceManagement (CBNRM) project. DNFFB wanted ways ofinvolving communities in natural resources conservationand management and to see how to promoteinvestor access to underused resources withoutundermining local livelihoods.Initial evaluations included inventories of forestry andmedicinal plant resources and wildlife diversity. InMay 2000, an area of 30 000 hectares was delimitedin the name of the Mahel Community and registeredin the National Cadastre, and a Community ManagementCommittee was established. The potential for acommercial game farm project was then evaluated.The resulting report (Anderson and Magane, 2000)concluded that:- The Mahel offers excellent habitat for gamefarming.- Effective commercially wildlife management canimprove local livelihoods.- The community must have ownership of the rightsto the game farm resources.- Viable projects should be planned in which investorsform partnerships with the community andsupply capital and expertise for development andmanagement.A project proposal was prepared, for an area of 13 500hectares within the greater community area (Dutton2001). A USAID project supporting business initiativesin areas around the transnational conservation arealinked to the Kruger Park - now the Limpopo NationalPark - then supported an ecological, technical andfinancial feasibility study which showed that the areacould support a project which would raise a mix of3 These case studies were originally written by the author for a World Bank publication on investor access to local land, soon to be published.Acknowledgement is made for allowing their use here.

90 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquecattle and introduced game animals - impala, kudu andgiraffe (Estes, 2002).The region was already attracting interest from investors,but the first concern of the DNFFB Steering Committeewas the legal framework within which a partnershipwould operate. This was at an early stage in LandLaw implementation, and new legislation on Forestsand Wildlife had also only recently been approved.The Steering Committee decided that the project wouldtest the new laws in a practical setting and establishimportant precedents. A second FAO project at theInterministerial Land Commission was then asked topropose how a community-investor partnership couldbe established, and work in practice. The followingsteps were identified:i. Raise awareness (selling the idea to local people –all of them, not just leaders).ii. Identify the extent of local use rights and how thecommunity manages them.iii. Do a community land rights delimitation.iv. Clearly identify the specific area and resources tobe used by the project.v. Obtain a title document (título) over this area,in the name of the community (i.e. register thecustomarily-acquired DUAT, which requires precisesurveying and cement border markers, and isexpensive).vi. Consider creating a community association/trust/enterprise to work with the project.vii. Create a detailed joint-venture agreement betweenthe association and the investor.viii. Proceed with the investment.ix. Provide capacity-building to the community tomanage and use income generated from theinvestor agreement, in pursuit of local developmentgoals.The FAO report (2003) also identified a series ofpartnership models, which were later discussed inseveral village-level meetings to explain the implicationsof each arrangement. Local people were then given thechance to discuss amongst themselves which would bethe best model for the specific circumstances and existingcapacity to engage with an outside investor, in whatfor them was a very new activity These models are stillin use today (CFJJ 2011:109-111) and serve to illustratethe range of different agreements which are possible.The community response was clear: it wanted controlover the process; it wanted to be able to renegotiatewith, or expel, the investor if things did not work out;and they were well aware that they did not have theknow-how and experience to become joint-venture partnersor employ a manager. Most of all, however, they didnot want to give up their DUAT. After much discussion,the community chose what was basically a long termrental agreement, which was seen as the most straightforwardoption (DNFFB, 2003). At the same time, theinherent weaknesses of the community were also clear,and the Steering Committee agreed that funding shouldbe found for a community support project that wouldbuild local capacity to contribute to the agreement andto use the new resources it generated.The assumption by the Steering Committee was thatthe investor would be attracted by not having to worryabout finding and securing land, a point that has morerecently been reaffirmed in the context of the ‘CommunityLand Initiative’ project which funds communitydelimitations in several key provinces (Cotula et al.,2010). Most DUAT requests involve lots of paperworkand can take years. Instead they would be able tofocus on the project and their relationship with thecommunity. This aspect has been noted in other morerecent initiatives, such as the multi-donor CommunityLand Initiative (iTC) programme, in which communityinvestorpartnerships are also promoted. The processwas also supported by the government agency involvedin investment applications, the Investment PromotionCentre (CPI) of the Ministry of Planning and Development,which saw the devolved management and localinvolvement in a new investment project as a way ofavoiding potential conflicts and generating benefit flowsfor all concerned.

Chapter 4: Mozambique91At this point the process stalled, waiting for higher levelconsent to move ahead, and the public tender to find aninvestor never materialised. Instead, a firm with Mozambicanand South African partners was finally chosenafter it had approached the local government lookingfor investment opportunities. This firm presented acredible proposal for a community-investor enterprisewhich would include payments to the community andcommitments to train local people and involve them inproject implementation (Ralindo, no date). A contractwas signed between all parties in November 2005.DNFFB then helped the community to secure US$33000 from a UNDP Small Grants Fund to fence the areaand set up a force of community rangers (this was alsoseen as a community contribution to the new project).Anecdotal accounts indicate that the community leadershipwas not easy to work with, but it is also clear thatthe firm chosen for the project failed to deliver on theirpromises and the partnership relationship never reallytook off. The community itself rescinded the contractin a letter dated 7 June 2007. The International Unionfor the Conservation of Nature (IUCN) then entered thepicture, with resources to secure the fencing and traincommunity members. A new Mozambican investorwith close links to elite urban interests was offering adeal which would pay the community a small shareof the turnover. But this share would have to cover allcommunity costs, including ranger wages, with thelion’s share of any income going to the investor. TheIUCN plan aimed to boost the community contributionand secure a higher share for the community (Sitoe andGuedes, 2009).Once again however, difficulties between the variouspartners obstructed progress and IUCN eventuallypulled out in late 2009. At the time of writing, the projectappears to have become little more than a privatehunting area for elite interests from Maputo, with thelocal community committee securing some share ofthe gains from selling the meat in the urban informalmarket.This process illustrates the potential of a decentralisedform of land management, but also highlights the highrisks involved where communities are not adequatelyprepared and are faced by external interests with theirown agendas and in a more powerful position, botheconomically and politically. The role of the CommunityManagement Committee and how it performs is critical,and if its members become entrenched or are simplynot up to the job, it is also difficult to work through thedifficult challenge of reconciling the very different worldviews and needs of a poor rural community, an externalinvestor, and a State keen to get resources into production.The legal framework is more than adequate, butthe skills needed to facilitate this kind of agreementand then to nurture and support it to maturity, go farbeyond those currently available in the land administrationservices. The Mahel case clearly shows the needfor solid and consistent support for both the overallprocess of implementing a decentralised model, andthe subsequent implementation of any agreements thatderive from it.Far more attention must be paid to the process andthe content of the community consultation process,which also offers important opportunities for capacitybuilding and identifying possible support options, onceagreements have been reached. Presently, the usualconsultation process for most land rights and forestryconcession applications consists of one meeting withlocal leaders, with the lack of real discussion and attentionto detail being a source of subsequent conflicts.(Tanner et al., 2006). Consultations also fail to involvethe wider community, provoking a backlash even whenserious effort has been made to include communitiesfrom the outset.The new provisions for community consultationsreferred to above go some way to addressing this point,now requiring that at least two meetings take place, 30days apart. The first meeting gives the community informationabout the project and identifies the limits of theland required; the second then allows the community togive its opinion about the land available for the project(MINAG 2011:282). It remains to be seen whether thesenew provisions will make a substantive difference, butit is clear that DNFFB and Provincial teams supportingthe Mahel, and similar processes up and down thecountry, have been learning as they go along, withevident goodwill and commitment. But beyond the

92 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquetechnical issues raised above, it is also clear that theysimply cannot do the kind of intensive work – fieldvisits, follow-up meetings with both the community andinvestor, mediation etc - which this process demands.They continue to be seriously under-resourced and rightup to the present moment, they complain that they donot have vehicles or a fuel budget that allows them tovisit the community and support the process.Source: Lazaro Gumende, DNTF (formerly DINAGECA)Coutada 9 in Macossa district 4Macossa is in the northern part of Manica province.Over 70% of the district is made up of two largeforested hunting reserves (coutadas), which border theGorongosa National Park to the east. These reservesare legally protected areas, and therefore fall withinthe jurisdiction of the Ministry of Tourism (MITUR).One of these, Coutada 9, is the venue for a successfulcommunity-investor partnership.Coutada 9 covers 3 763 km2 and its natural habitat andlow human population density offers great potentialfor conservation and wildlife management. Inventoriescarried out in 2003 identified many wild animal species,but numbers are low after years of heavy illegalhunting. Restocking is essential if game hunting is tobe commercially and ecologically viable. In 2003, MITURissued a management contract to Rio Save Safaris, aMozambican-Zimbabwean safari-hunting business.Through this form of decentralised management,the state required the investor to restore the animalpopulation as part of a conservation management plan,manage the overall resource base and the Coutada, andproduce revenues for State coffers.MITUR believed at the time that there were few if anylocal people living inside the Coutada area - and theirposition throughout has been that such communitiesdo not have acquired DUATs under the 1997 Land Law:as ‘partial protection areas’, coutadas are considered‘public domain’ and DUATs are not permitted in suchareas. The law does provide for ‘economic licences’however, and this is the basis for the Rio Save Safariscontract. With or without DUATs, the villages hadnevertheless been there for a very long time, with establishedleadership and resource management structures,and Rio Save Safaris quickly found significantsettlements established inside the Coutada, especiallyin the west where deforestation and agriculture madeany kind of conservation activity impossible. Throughwhat was in effect a kind of delimitation process, theydiscovered that there were five communities inside theCoutada boundary, with a total population of around 17000. Each has its own leaders, with recognised bordersbetween each community. One of them, the Nhaungacommunity, covers most of the land within the Coutadaarea, and its chief has been formally recognised asa ‘Community Authority’ by the State under Decree15/2000. Villages in the primary forest area to the eastalso relied upon subsistence strategies that combineforest use for hunting, medicines and honey, withagriculture near seasonal rivers. Although populationdensity was low, these production systems extendedover many thousands of hectares.Notwithstanding the formal legal position, the de factonature of the historical rights of the communities wasclear, and even if they do not have acquired DUATs,constitutional guarantees require that their interests betaken into account, and simply moving them out wasnot an option. Rio Save Safaris therefore accepted the4 The author has followed this case while providing support to a FAO food security project in Macossa District. This account is based on field notesand personal interviews with the investors and FAO community outreach officers working in the district.

Chapter 4: Mozambique93community presence and the need to work with localpeople to find a viable resource management strategy.The first priority for the concession holder was to stopthe widespread illegal hunting if they were to successfullyrepopulate the area with wildlife and run a viablesafari business. Guards and rangers could come fromthe local community, but policing costs would still behigh without some form of community involvement thatwould compensate local people for giving up hunting.Besides, they needed good relations with local peopleto succeed in a difficult operational environment. RioSave Safaris came up with a pragmatic proposal forco-managing the area with the communities. Mostimportantly, they proposed a way for the communities toparticipate in the income generated by the safari business,in return for giving up, or at least significantlyreducing their hunting. Local livelihoods would not beundermined, and Rio Save could implement a viableconservation and sports hunting programme.The proposal was structured around a de facto zoningof the Coutada into areas with different levels of communityparticipation, management responsibilities, andresource use:- A core, partially fenced area where the investormanages all the resources and which the communitieswill eventually leave voluntarily; thecommunity will stop all hunting and will receive25% of trophy fees generated in this area.- A buffer zone managed jointly by the investor andthe community for two years, and thereafter by thecommunity alone; the community will stop huntinghere, but due to their greater management role,they will receive 75% of trophy fees.- A third area, away from the hunting and conservationareas, where local agriculture is allowed: thisrecognizes the reality on the ground, and gives upany pretence of preventing agriculture to restorethe forest.Rio Save Safaris would also work with the communityto improve their understanding of conservation issues.As well as training local people as guards and rangers,they would also provide opportunities for communityyoungsters to learn about conservation.The firm did their own research into the socio-economicand political organisation of the communities. Crucialquestions in this context were:- Who are the communities?- Who represents them?- What are their rights within the Coutada?- Do they have a legal personality allowing them toenter into contracts?The five identified communities each had severalvillages and a single chief (regulo) and managementstructure. Through a process very like delimitation, amap was produced of community occupation in theCoutada and neighbouring areas and local NaturalResources Committees were established to representthe communities (Chidiamassamba, 2004: 3). The‘Community Authorities’ – the local Regulos completewith formal regalia – have since played an effective dualrole, at one moment representing ‘their’ community vizá viz the investor, and at another, acting as an advocatefor the model in dealings with the State and its agents.These arrangements have enabled Rio Save to talkto the right leaders about how the proposed schemeshould work, and to address problems as they occur.The zoning and income-share agreement has sincegrown into a constructive relationship between Rio SaveSafaris and the local communities which has producedsignificant results. Rio Save Safaris have trained localmen as rangers and bush camp staff, and in the firstyear the communities received US$11 000 as theirshare of trophy fees. They have continued to receivesimilar amounts every year and are now used to theidea of working with the investor. They have built healthposts and improved social infrastructure, are betterorganised and more able to assess their needs anddecide how to use their income. The FAO food securityproject has also played a key role. Income diversificationand agricultural activities have helped to mitigatethe livelihood impact of hunting controls, and these are

94 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquenow supported with income from the agreement withRio Save Safaris.Although the community-investor relationship isworking well, there are the inevitable difficulties. Apartfrom the income arising from the agreement with RioSave, under the provisions of the Regulations of theForest and Wildlife Law, the communities also receive20 percent of the public revenues generated by thecompany. These are distributed by the district administration,which has also taken on the distribution of thesafari hunting income. These funds are divided equallybetween the communities, and both Rio Save and somelocal leaders complain that not all the communitiesstick to the agreement over hunting and agriculturecontrols.Rio Save are looking at how to allocate income inrelation to the effort made by each community tocontrol illegal hunting, by creating an association of thevarious community Natural Resources ManagementCommittees to allow the communities to assumegreater control over the distribution and use of funds.They also hope that this might have some impact on theillegal hunting which is carried out by outsiders linkedto powerful urban interests.The reluctance of central level institutions to go alongwith the idea of losing control over state resourcesand development in general is another challenge fordevolved land management, where both investors andcommunities have autonomy viz á viz the State andcan make their own decisions. Like the Mahel case,Coutada 9 also tested the legal framework to come upwith an appropriate set of rules within which to formalisethe community-investor agreement and regulatethe relationship in the longer term. Indeed there wasconsiderable initial resistance from central level MITURto some of the ideas being proposed, including thenotion of zoning and downsizing the Coutada.However, with legal and community-facilitation supportfrom a nearby FAO CBNRM project, Rio Save wentahead with its agreement with the communities. Theythen went back to MITUR and succeeded in persuadingthem to agree to a new contract which included themain elements of the partnership proposal and landmanagement plan. After seeing the scheme workingin practice, the Provincial Cadastral and GeographicService and the Forest and Wildlife Service finally carriedout a formal zoning of the Coutada into core, bufferand agricultural areas. Further evidence of success isthe fact that Rio Save Safaris have been awarded thecontract to manage the neighbouring Coutada 13. Theywill use the same participatory approach, and now withfull MITUR support, will zone the new Coutada.Has decentralised land managementand administration worked?The two case studies show that the practical applicationof principles of devolved management and communityempowerment is not easy. Several different objectives– local development, environmental conservation,and the need to get land into production – have to bepursued and harmonised at the same time. There isalso the reality of the limited livelihood choices andcapacity of local communities to understand and usethe rights which they now have – to manage, resolveconflicts, and participate in titling, and to negotiatedeals with investors.Even where certain functions and powers are devolvedto local level, there is also no guarantee that this willproduce the desired outcome. The Mahel case in its latterstages reveals community leaders who have becomeentrenched and are blocking the kind of process thatwould genuinely benefit the larger community. Norcan it be assumed that local leaders in the CommunityAuthority or even customary leadership context willeffectively communicate with, and devolve powers to alltheir villages. This is particularly the case in reguladoswhich, when delimited, are over 100 000 hectares. Theirsize not only raises concerns in government over thearea under local control, but as the Niasa study citedabove shows, it also raises concerns over the effectivenessof the devolved local management model of the1997 Land Law and other related legislation.There is no short-cut to the demanding processes ofcapacity building, civic education, and the promotion ofa decentralised, participatory, multi-stakeholder process

Chapter 4: Mozambique95at local level. Centralised institutional hierarchiesstill exist, and the Coutada 9 case effectively revealshow tensions between central level MITUR and thoseinvolved at provincial and local level threatened to upsetthe evolving understanding and agreement between theinvestor and the communities. Indeed, official oppositionto the idea of zoning the Coutada was only formallyovercome at quite a late stage in the process, whilethe main parties to the agreements simply got on withworking together and tried to make the Coutada projectwork. Similarly, the Mahel case demonstrates how anintensive, decentralised form of local decision-makingis the only way to achieve local support and legitimacy(in this case the choice of partnership model to follow).Comparing the two cases also underlines howimportant it is to find investors with goodwill who arepredisposed to working with local people and dealingwith the many challenges that this approach presents.But even these investors need support – not many areexperts in community development, and ‘decentralisation’is a complex process that requires special skillsand understanding of how to work at community level.In the Coutada 9 case, the role of the FAO CBRNMproject was a critical and gratefully acknowledged inputto this relatively successful story.The case studies also underline how good intentionsand good ideas can be undermined by very straightforwardproblems. It is difficult to imagine how landadministrators and local government officers, appropriatelytrained in participatory techniques and keen topromote devolved local management, can implementany model if they have no vehicles and or the fuelneeded to visit communities and provide the kind ofsupport needed to establish and nurture a successfulcommunity-outsider relationship.The challenge of using both the Land Law and thedecentralisation programme as they are intended, alsodemands new skills that are not readily available eitherin government or in civil society. These include mediation,business and project planning, civic education andlegal empowerment. The challenge is also immense atlocal level - few local communities have the necessaryknow-how to negotiate and to play their role as locallevel land and resource managers, beyond the immediateconfines of their own customary systems.It is also clear that central level structures are verywary of the whole question of devolved management;and when things go wrong, as in the Mahel case, theprocess can easily be ‘captured’ by interest groups withvery different agendas. However, good examples areso important. This is shown by the way MITUR learnedfrom the Coutada 9 case and today gives full support tothis kind of initiative – the Ministry now requires all newinvestors in tourism to include a community participationelement in their proposals.The Consultative Forum on LandDriven by over-arching national development andeconomic growth imperatives, some people in theGovernment and administrative hierarchy advocatemeasures to fast track investment and bypass the kindof inclusive, devolved model that is at the heart of the1997 Land Law and most other natural resources legislationsince then. Public servants are clearly drivenby pressures from above to find land for investors, topromote development and to facilitate the new project,even at the expense of local rights. Faced by these pressures,they are forced to compromise on the underlyingprinciples of participation and inclusivity that are at theheart of the current legal and policy framework. 55 Statements from participants in training seminars on land and natural resources law implementation, with local government officers, CFJJ/FAOParalegal Training and District Officer Seminar programme.

96 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueThe reality is that decentralised and devolved modelsare always going to be more challenging, both toestablished interests whose access to centralisedstructures gives them clear advantages, and forcommunities whose basic skills and capacity requiresupport and capacity-building. This is especially thecase when, as in Mozambique, decentralised landmanagement functions conflict with, or are evenundermined by other decentralisation processes in theformal public administration arena. It is also clear thatto make decentralisation work takes a lot of hard workand time. Meanwhile, Government is concerned abouthuge areas of land not being used to full potential, andwant to see economic growth and revenues from anagricultural economy which has so far failed to take off.The attraction of major investors lining up asking forland for large scale projects is obvious, but immediatelyputs at risk the whole idea of a more decentralised andparticipatory approach.In this context, Mozambique is facing new pressuresto revise its policy and legal framework, in particularwith relation to the linked issues of the transferability ofDUATs, and the ability to use formal registered title tosecure investment credits from the banks. To deal withthis new situation, in late 2010 the Government createda new Consultative Forum on Land (CFL), which bringstogether several key ministries dealing with land andresources issues, and also provides for civil society andother stakeholder participation. Amongst issues alreadyidentified for Forum discussion are the consultation process,the nature of the DUAT as a strong, private rightunder the Constitution, and the vexed question of thetransferability (through market mechanisms) of DUATs.So far, in spite of declarations of openness andinclusivity, the new Forum is not achieving the levelsof participation and devolved discussion and feedbackthat characterised the process over-seen by themid-1990s ‘Land Commission’, when it developed the1995 National Land Policy and the current 1997 LandLaw. One example of this is the way the new decree oncommunity consultations was developed without Forumintervention and with little stakeholder involvement.This reinforces the sense of a government concernedwith reining in and restricting the decentralisedprocesses inherent in the current framework, ratherenhancing them by providing the necessary resourcesand support they need to reach the potential illustratedby the Coutada 9 case above.It would be a pity if this is indeed the outcome – theland policy and land law offer important and workableinstruments with transformational potential fordevelopment, using a range of instruments that devolvesignificant management functions to local people andin so doing, build their capacity to engage in and tobenefit from the development which private investmentpromises to bring. The new Forum must be encouragedto look objectively at the good examples which do exist,and to reflect upon the benefits of the decentralised anddevolved model of land administration and governance.Fortunately there are many in Mozambique - ingovernment and in civil society - who understand thisand value this approach. The 2007 Rural DevelopmentStrategy (RDS), for instance, implemented by theNational Directorate for Promoting Rural Development(part of the Ministry of State Administration), calls forthe ‘emancipation’ of local communities through thecorrect use of the Land Law.Emancipation also comes from being given responsibility,an important lesson to be learned in the Coutada 9case, where the agreement between the investor andthe communities demands for commitments on bothsides. Investors too, may be obliged by the state to bemore participatory. An recent important example ofthis is the new Resolution by the Council of Ministerswhich requires them to include ‘the partnership termsbetween the holders of DUATs [acquired] by occupationin the area required by the investor’, along with theirinvestment proposals (Council of Ministers, 2008).ConclusionThe examples provided here show that with hard work,support, time, and patience, local management andpartnerships can happen, producing workable andmutually beneficial compromises between local peopleand outside interests. The case studies show how

Chapter 4: Mozambique97important it is to have good facilitation and communitydevelopment support as essential inputs to a genuinedecentralisation process.With a legal framework that supports a devolved,participatory and consensual approach to land managementand land use, Mozambican communities and theirrights do not have to be seen an obstacle, but rather aspartners in a local development process which meetsthe different needs of all who depend upon land andnatural resources. The role of the State and how it managesthese processes is critically important however,especially at a time when major economic interestsare lining up to get access to land, and concepts likedecentralisation and local community rights are evidentlysomething of a constraint on fast-tracking largeinvestors onto local land. Government and communitiesare both ready to welcome investors; the governmentcan tell them what the rules are, promote policies thatbegin with the recognition of local rights, and includemechanisms to involve local people, not just as wagelabourers, but as active stakeholders with a say in howlocal development takes place in their midst.The Mozambican experience also points to the dangersof ‘multiple decentralisations’. Understanding how tomake all the various forms of decentralisation worktogether is a major challenge for policy makers and civilsociety alike. Overlapping responsibilities, weak localgovernment capacity, poorly informed local people,and a mix of facilitation and manipulation – ‘facipulation’– by a range of benign and not-so-benign actors ispreventing the country from achieving a powerful formof decentralised and democratic governance whichcould transform local economies and alleviate povertythrough a more equitable distribution of the fruits ofdevelopment. Access to local land is seen by all as the‘necessary condition’ for development, especially inrural areas. Giving power to local people to manage thataccess is the best way to ensure that benefits flow inboth directions.Finally, it is to be hoped that the new ConsultativeForum on Land will fully take all these points intoaccount, and draw upon the available lessons, in orderto improve the policy and legal framework, withoutundermining its equity-enhancing and democratic,empowering and liberating potential.ReferencesAKESSÖN, G., CALENGO, A. AND TANNER, C. 2009.‘It’s not a question of doing or not doing it – it’s aquestion of how to do it: Study on community landrights in Niassa Province, Mozambique,’ SwedishEIA Centre, Paper 6/2009. Uppsala: SIDA Helpdeskfor Environmental Assessment, Swedish EIACentre.ANDERSON J. L. AND MAGANE, S. 2000. ‘An assessmentof the wildlife CBNRM potential of theMecuburi and Matibane forest reserves, the Mahelpilot project and the Goba community project,’Report of Project GCP/MOZ/059/NET. Maputo: CommunityManagement Unit, National Directorate forForest and Wildlife (DNFFB), Ministry of Agricultureand Rural Development (MADER).CFJJ. 2011. Manual para Paralegais na Area dosRecursos Naturais, Ambiente e Desenvolvimento.Maputo, Centre for Legal and Judicial Training(CFJJ) and Rome, FAO, Project GCP/MOZ096/NET.CHIDIAMASSAMBA, C. 2004. ‘Parcerias entre comunidadelocal e sector privado (Contribuição paraa segurça alimentar e nutricional no Distrito deMacossa),’ paper presented to the National Conferenceon Community Based Natural ResourceManagement, Maputo, 2004.COTULA, L., DESHORMES, A., MARTINS, S., ANDCARILHO, J. 2010. ‘Mid term review,’ presentation.Maputo, DfID, February.COUNCIL OF MINISTERS. 2008.: Resolution 70/2008of 30 December, Procedures for Presenting andAssessing Investment Proposals Involving Extensionsof Land Greater than 10,000 Hectares. Part C,lines C and G.CTC (2003): Appraisal of the Potential for a CommunityLand Registration, Negotiation and PlanningSupport Programme in Mozambique. Maputo,

98 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueDepartment for International Development (DfID).A report by CT Consulting, Cambridge, England.DE WIT, TANNER AND NORFOLK. 2009.: Land policydevelopment in an African context: lessons learnedfrom selected experiences. FAO Rome, Land TenureWorking Paper 14. Rome, FAO.DNFFB 2003. Grupo de trabalho – Projecto Mahel:Divulgação das propostas de parceria “comunidade-investidor”.DNFFB unpublished technicaldocument.DUTTON, P. 2001. Project proposal for the developmentof a community support game ranch in the MahelAdministrative Locality, Magude District, MaputoProvince. Unpublished report to the Ministry ofAgriculture and Rural Development, NationalDirectorate of Forests and Wildlife.ESTES L. D. 2002. Ecological and technical feasibilityanalysis of the proposed Mahel Game/Cattleranch. Report prepared for Management SystemsInternational; and Richard Davies (2002): A BusinessPlan for the Mahel Cattle/Game Project. Alsofor Management Systems International. Reportsavailable through Community Management Unit,DNFFB/MADER, Maputo.FAO 2003. Propostas de Parceria ‘Comunidade-Investidor’.Maputo, DNFFB, Project Mahel SteeringCommittee/Land Commission FAO Support ProjectUTF/MOZ/070/MOZ.SITOE, A. AND GUEDES, B. 2009. Situation analysisand Baseline data on Forest Ecosystems well beingand Socio-economic well being in Mahel CBNRMArea including: rapid Forest and wildlife resourcesassessment; Rapid Socio-economic assessment;Development of Ecosystem well being and povertyindicators and; Inter-linkages between HumanWell being and Ecosystems Well being. A report forIUCN Maputo. Also conversations with IUCN staffin Maputo and Kenya.TANNER, C. 2002. Law Making in an African Context:the 1997 Mozambican Land Law. FAO, Rome, LegalPapers Online No 26. http://www.fao.org/LEGAL/prs-ol/years/2002/list02.htmTANNER , C. AND BALEIRA S. WITH AFONSO, A.,AZEVEDO, J.P., BILA, J., CHICHAVA, C., MOISÉS,A., PEDRO, C., AND SANTOS, J. 2006: Mozambique’slegal framework for access to naturalresources: The impact of new legal rights andcommunity consultations on local livelihoods.FAO Rome, Livelihoods Support ProgrammeWorking Paper No 28, Access to Natural ResourcesSub-programme.TANNER, C., DE WIT, P., NORFOLK, S., MATHIEU, P.,AND GROPPO, P. 2009. Participatory Land Delimitation:an innovative development model basedupon securing rights acquired through customaryand other forms of occupation. Rome, FAO, LandTenure Working Paper No 13.MINAG 2011. Diploma Ministerial No 158/2011of 15June. Maputo, Boletim da República, I Serie,Number 24.RALINDO. No date. Associação Comunidade de Mahel,Iniciativa de Criação de Fazenda de Bravio. Proposalby Ralindo Game Farms Mozambique, part ofRalindo Marketing Services Mozambique Lda.SERRA. 2007.: Colectânea de Legislação sobre a Terra.Maputo, Centre for Juridical and Judicial Training(CFJJ), 2nd Edition.

Chapter 5: Lessons and reflections99Chapter 5: Lessons and reflectionsComparing country experiencesThe table highlights the complex particularities of eachcountry history and development trajectory, contextualisesthe origins of different national discourses ondecentralisation.Trends and issuesDespite the extreme diversity of the country cases,a number of crosscutting trends and issues can beidentified.The push-pull dynamics drivingdecentralisationDespite significant historical differences in the politicaland development directions taken by the three countries,there are increasing contemporary similaritiesbetween them: all three espouse decentralisation butretain strong centralising tendencies.The cases highlight the complex relationships betweenforeign donors and multilateral institutions pushingdecentralisation, at the same time as forces in thecentral state attempt to pull power to the centre, andlocal actors seek to draw power down to the ground.

100 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueAnalysis Botswana Madagascar MozambiquePopulation(2009)1.95 million 19. 62 million 22.89 millionSize 581 730km² 587 040km² 801 590km²1966: Negotiated transition to independencefrom Britain.1960: Obtained independence from France. Armed struggle against Portuguese colonialgovernment.Multiparty democracy since Independence. Ruled by a succession of Soviet-leaningsocialist regimes.1975: Socialist model adopted atIndependence.Uninterrupted control by BDP ruling partyuntil the present day.Diamonds stimulate economic growth totransform Botswana into a middle incomecountry, but with rapidly widening inequality.Strong trends towards increased centralisationunder the Presidency of Ian Khama.Country experiences episodic politicalinstability.Popular demands for democratisation mountin late 1980s.1989: Democratic transition marked byconsiderable unrest.1980s: Destabilisation, civil war, drought andmismanagement ruin economy.1990: Multi-party constitution.1992 Peace Accord.Political stability and economic reforms,economic growth.HistoryA strong modernising thrust adopted by newgovernment, combined with a critique ofcustomary institutions and tenure systemswhich are characterised as a brake ondevelopment.Land remains vested in the State. Rights toaccess and improvements on the land arethe subject of market transactions ratherthan the land itself. A range of legislationpassed in immediate post independenceera, including the Tribal Land Act (1968) toguarantee land rights of ‘tribesmen’ on TribalLand through certificate of customary rights.Leasehold options also available.1992: New constitution after presidential Decentralisation since 2003.elections and referendum.Rulers publicly espouse commitment todemocracy, while attempting to centralisepolitical control.2009: President toppled by troops leading toimposition of AU sanctions.Poverty reducing very slowly, signs of wideningwealth gap.Uninterrupted control by FRELIMO rulingparty creates culture of centralised powereven in decentralised institutions.

Chapter 5: Lessons and reflections101Analysis Botswana Madagascar MozambiquePolicy to expand Tribal land area while theTribal Grazing Land Policy paves the wayto granting exclusive rights to rangelandfor large stockowners on the assumptionthat they would manage rangeland better;however no evidence to support this.Exclusive rights holders retain dual rights onthe commons. Subsequent policy reviewsproposed that dual rights be done away withbut these recommendations never approved.Legislative amendments in 1993 enablecitizens to apply to access tribal and stateland anywhere in the country.Historical development of land tenure hasevolved from many influences includingmonarchy, colonial and state control, whichcreated a fragmented tenure system withuncertain rights.Following independence the impetus forland tenure reform evolved from the tensionbetween the ownership of untitled landasserted by the central state and the popularunderstanding that the land belongs to theMalagasy people, and therefore could be allocatedand managed according to traditionalpractices and procedures.In the immediate post independence eraFrelimo focused on big centrally plannedstate run estates, coupled with ‘socialisationand modernisation of the countryside’.Villagisation and other measures alienaterural people.1983: Privatisation of agriculture begins. Firststate farms leased to selected private nationaland foreign interests.1987: Mozambique adopted IMF StructuralAdjustment Programme (SAP).1990: Free market economy adopted inConstitutional revision.Land and decentralisationpolicy andlegislationPolicy and legislative amendments recognisechanging household demographics andfacilitate independent access to land bywomen.Patriarchal inheritance law and custom limitgender impacts of legislative shifts enablingfemale headed households to access land.Long history of political instability followingindependence in which conflicts over landplayed an important part.2005: Government moved to reform tenuresystem and revised the approach to landgovernance.Land reform policy changes gave legalrecognition to customary holding of land.Currently a shift to facilitate women’s landaccess under customary practices. Womencan inherit land. However a deep-rootedconservatism about women’s rights persistsin many rural areas. Women have access toland but their control over the land is limited.Post-war discourses on land rights:- Secure subsistence base of small farmers(‘land belongs to those who use it’), leavingrest in State hands for investment.Local rights are more extensive – based onproduction systems – with little land freefor investors, but access can be negotiated(informs 1995 National Land Policy).1997: Land Law creates three ways for peopleto gain rights- by customary occupation- by ‘good faith’ occupation for 10 years- government authorises people and companiesto use land for 50 years (Hanlon 2002).

102 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueAnalysis Botswana Madagascar MozambiqueLand and decentralisationpolicy andlegislationLand Law provides equal access to land bywomen and men, but customary norms still workagainst women asserting this right.Constitutional base (fundamental rights) offersstrong platform for pursuing decentralisationgains and participatory model.Customary management recognised and opensway for decentralised land management, communityconsultation and a single legal frameworkintegrating local people and investors.Civil society support for Land Law implementationessential.2000 onwards: political stability, consolidation ofmacro-economic reforms and growing marketeconomy create powerful forces opposingdecentralisation. Implementing decentralisedmodel is not easy, public capacity weak, communitiesneed support.2010: Consultative Forum on Land created, withcurrent discourse on land influenced by severalpositions:- ‘Land belongs to State’ outweighs local rights,and ‘national interest’ arguments threaten localrights (large investors, ‘land grabbing’).- Privatisation needed to facilitate access tocredit and agricultural growth.- Participatory approach of Land Law still validbut requires proper implementation.Re-emergence of the 1995 debate with muchsmaller ‘communities’ delimited to free land forinvestors.State development imperatives undermine rights/ participation.

Chapter 5: Lessons and reflections103Analysis Botswana Madagascar MozambiqueCreation of a strong administrative state butone which invests in District level governanceinstitutions.Creation of regions containing communes toprovide local level administration. Regionalcapacities to support communes vary widely.1978: Colonial local government systemabolished - replaced by executive councilsunder central government control.Service delivery collapses by 1983.Formalinstitutionsand decentralisedlandgovernanceframeworkCreation of District Councils with electedrepresentatives:• District Development Committees• Village Development CommitteesLand Boards, Sub Land Boards and LandTribunal established but land managementis increasingly professionalised with limitedlocal representation on Boards. However,strong upward accountability to centralgovernment has been retained.Communes managed by elected mayorswhose levels of authority vary across thecountry and land governance.Villages (fokontany) operate local villagecouncils (fokonolona).National and local state interest in revenuefrom foreign investment, confusion createdby incomplete cadastres and, land deals byelites threaten the authority of local communesand the still very fragile decentralisedapproach.1987: New moves towards decentralisationlinked to SAP (Cuereneia, 2001). However,while state institutions might appear strong,in reality local government remains weakas it is difficult to shake off the long historyof powerful state, so central control is stillapparent and there is a risk of central control,via weak decentralised local structures,serving external interests.Legitimate traditional structures exist andhave to be involved.Local resource management decisionsrequire local involvement structures/ dialoguefor legitimate decisions and accountability.District governments are key actors, but needcapacity building and awareness of rightsbasedapproaches and participation.Decentralisation currently heavily dependenton external donor support, which raisesquestions about its sustainability.National elites and urban interests with ‘longreach’ can influence decentralised structures.Some state institutions have vestedinterests in resisting moves to decentralise,so the goodwill and commitment of the stateand private sector are important for effectivedecentralisation.

104 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueAnalysis Botswana Madagascar MozambiqueCustomaryinstitutionsand landgovernanceTraditional leaders initially included in LandBoard structures.Traditional leaders subsequently removed.However, local land overseers appointed bychief and kgotla (village assembly) play keyrole in day to day land management on theLocal village councils (fokonolona) remainlargely preserve of elders and men, so play alimited role in securing broader participationof local population at a broader governancelevel.Traditional leaders (reguldado) manipulatedby colonial relationships and marginalised bypost-Independence ideology, yet very resilient:they survived serious challenges and are stillintact in spite of war, drought and politicalside-lining.ground. Field evidence proves continuing existenceTraditional authorities remain resilient andsocially embedded in Tswana society.Decentralisation legitimises historic customarymanagement by traditional village headsand locally appointed village elders overseeinglocal land allocations.and legitimacy, thus recognised and built intomainstream policy (1995) and the 1997 LandLaw.Customary structures can be conservative– are refreshed and strengthened by new‘leaders’ (‘committees’, women, etc).Contemporary resurgence of recognition oftraditional leaders and decision in 2011 tore-involve them in Land Board structures.Local agreements based on local practicesinvolving traditional authorities are nowintegrated into the policy mainstream.Customary structures weak viz- à- viz modernchallenge; therefore also need support andguidance.Poor recording of pre-existing rights in land. Weak and complex registry system inaccessibleto majority of land users.Continuing influence of ‘central planning’mentality.Incomplete property descriptions in cadastre. Absence of well defined legally supportedland tenure system.Land use andcontrol Weak land use monitoring capability withinthe Land Boards.Ill-defined property rights in general.Increasing incidence of land conflicts.Local assessment of needs and capacity abetter basis for local plans and resource thanhigher level preconceptions of what is best.Field evidence shows that local peopleunderstand where their rights and bordersare even when not officially recorded; lack of‘title’ and lines on maps does not mean anabsence of rights and local structures.

Chapter 5: Lessons and reflections105Analysis Botswana Madagascar MozambiqueAllegations that outsiders increasingly gainaccess to land in localities without followingdue process.Weakness of provisions within national lawfor local people to steer development optionsand defend their own land rights.Production systems research underlinedhow local communities adaptively manageand control land and NR through indigenousinstitutions.Land use andcontrolSystemic weaknesses allow for powerfuland well connected to accumulate valuableresidential and grazing land.At local level, decentralisation legitimises thehistoric customary management by traditionalvillage heads and locally appointed villageelders overseeing local land allocations.Local agreements based on local practicesinvolving traditional authorities are nowintegrated into the policy mainstream.These systems are the basis of ‘occupation’and thus of acquired rights.‘Local communities’ can be titleholders of theState allocated Land Use and Benefit Right(DUAT).Rising social inequality. As a result of extreme poverty, not all villagerscan afford the costs of strengthening theirExperience shows that using local structureswill not necessarily guarantee equitablePeople allocated exclusive rights to grazing land rights.sharing of `decentralisation dividend’.farms retain dual rights on the commons.Equity, participationandaccountabilityVulnerability of the poor to downward raidingresulting in loss of land rights.State concerns about politicisation of LandBoards make land governance increasingly atechnical and bureaucratic function.Local and urban elite can afford to recordland rights through registration in their ruralcommunities of origin.Stronger regulation needed to protect localrights and take account of local interests ofthe poor.Even decentralised land management can beused to serve state and urban interests.Legitimate traditional structures also needregulation to ensure accountability andaccessibility.Increasingly skewed access to productive andvaluable land.Government can play role setting rules forrespect of rights; needs to do consultations,rule of law, etc.

Chapter 5: Lessons and reflections107Links between decentralisation andpowerDecentralisation initiatives frequently overlook ordownplay local relations of power. In practice externallydriven decentralisation and land governance programmestend to oversimplify complex local land rightsrealities, which ‘are shot through with power relations’(Ben Cousins, Interview 2011).This raises questionsabout the extent to which the institutions responsiblefor effecting decentralisation are designed to ensuredemocratic decision making and to function in wayswhich are explicitly pro-poor.Local institutions are not ‘participatory’ or ‘democratic’by default and may represent conservative and deeplyentrenched local interests. Democratic decentralisationcan have unintended consequences and createopportunities for powerful minorities to capture localland rights management institutions and take decisionswhich further privilege local elites.Decentralised land governance as atechnocratic exerciseImplementation of decentralised land governancefrequently relies on technologies and capacities whichare far removed from local resource capabilities andpractice. Decentralisation initiatives are often cast asa technocratic exercise - heavily focused on the detailof institutional design and the roll out of sometimeselaborate land rights registration programmes, whichare frequently dependent on foreign funding.There is also substantial variation in the way that differentunderstandings of decentralisation are interpretedand given meaning in the three country case studysettings. This can result in a widening gap betweenofficial discourse and the actual processes of localimplementation.The importance of strong civil societyorganisationsIt is clear that local civil society organisations areessential to provide pro-poor oversight of land governanceand land rights management arrangements. Itis no coincidence that the spike of interest by externalinvestors in African land assets is closely associatedwith a global recession and a search for new economicopportunities offering good returns on investment. Atthe same time, the recession has adversely affectedfunding streams to southern NGOs. We were forcedto accelerate our research in Botswana because theChobe office of DITSHWANELO was due to close due tofunding constraints. The erosion of this important rightsprotection and monitoring function further opens thedoor to potential abuses in the land sector.There remains a central need to empower citizensthrough mobilisation, organisation and appliedresearch. Decentralisation initiatives can create spacesfor local voices to be heard, but without organisation,local knowledge and analysis, these institutional spaceswill remain empty.The alignment of multiple actors anddecentralisationsDecentralisation is not a singular undertaking. Localgovernance institutions and local land rights managementinstitutions have often been created side by sideand are overseen by different organs of state, each withtheir own distinct mandate. Both horizontal and verticalalignment between initiatives and institutions originatingin different spheres of government has provedcomplex and difficult.Ambivalence over the role oftraditional authorities in decentralisedland governanceDespite the ubiquity of the citizen/subject discourse inthe literature, which argues that traditional leaders arean anomaly in a democratic state, evidence from thedifferent country case studies points to the resilienceof traditional leaders and institutions in rural settings,facilitated in part by the need for ruling parties toretain their political support base, as well as by localsupport and legitimacy. In some respects the currentrelationship between the State and traditional authoritiesappears not to have shifted that fundamentallybetween pre- and post colonial periods. The standing of

108 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and Mozambiquetraditional authorities appears to be enjoying somethingof a resurgence, despite moves to marginalisetheir roles and influence in the past – particularly inMozambique and to a lesser extent, in Botswana. Thiscontinues to raise ‘difficult questions about the roleof unelected traditional authority and inherited powerin a democratic society’ and presents thorny politicalchoices as to whether to ‘abolish, convert, regulate’, orotherwise accommodate this leadership strata - locally,‘legitimate traditional structures exist and have to beinvolved’. (Ben Cousins, interview 12 September 2011).Commodification of land held by thepoorLand which is legally the property of the State, on whichpoor rural people hold rights in terms of customarytenure systems, is increasingly the focus of new foreigndirect investment initiatives in partnership with nationaland local governments and economic elites. This isleading to large scale land deals which place the landrights of the poor at risk, particularly in situationswhere:• central government seeks out investment andfavours large-scale land deals over locally drivendevelopment alternatives;• the underlying land rights are poorly describedand supported in law or are trumped by lucrativedevelopment opportunities; and• land governance and land rights managementsystems are weak.In Botswana, such deals are associated with tourismopportunities on conservation land, but also on highvalue agricultural land in Chobe District. Such landdeals are increasingly prevalent in Madagascar andMozambique with a focus on securing land for biofuels, fibre and food production. They highlight acutepower disparities between local rights holders and largeforeign companies, and their government and privatesector partners.Land as an asset amidst mountingresource scarcityAttempts to decentralise land governance have to belocated against the sharp resurgence of interest in arableland and natural and mineral resources by foreigncorporations and governments. As the President of theAsian Development Bank has recently observed:[...] the entire world is facing a new era of scarcerresources is a fact. In all areas – from clean water tofood to natural capital – scarcity is the new normal .(Kuroda 2011)The new economics of scarcity has meant that foodand agricultural markets have become the focus ofintense market speculation. A World DevelopmentMovement report (Worthy, 2011: 6) examines howrecently ‘financial speculation has boomed, turningcommodity derivatives into just another asset classfor investors, distorting and undermining the effectivefunctioning of agricultural markets’. This context placesnew value on resource rich land held under customarytenure systems, which until recently was deemed to beoutside the economic mainstream, transforming it intoa strategic resource and sustainable source of wealthwaiting to be ‘unlocked’ by external investors who seekto externalise the lion’s share of benefits.Reflections on decentralisationpracticeFour key questions continue to shape and underpinlocal decentralisation policies and practices:• How are rights defined and specified?• Who decides?• Who benefits?• Who regulates decision making and benefit flow?All the cases highlight the deep persistence of centralplanning perspectives and the associated retention of

Chapter 5: Lessons and reflections109power and authority. Decentralised land governanceinvolves institutional arrangements and relationsbetween different levels and types of body, and relateddecision making processes and questions of accountability.While there continues to be an emphasis, aspart of national and international ‘good governance’agendas, on democratic decentralisation anddownward accountability to people directly affected bydecisions about resources on which they depend, thisfocus on its own is insufficient. Both lateral and upwardaccountability also have to be taken into account asthey provide essential checks and balances. Insufficientattention has been paid to the upward accountabilityrelationships. These continue to be important becauseof the essential regulatory oversight provided throughstate bodies in the public interest. Cousins points outthat ‘You don’t have property rights without authoritysystems to enforce those rights (Cousins interview, 12September 2011).Debates on tenure systems in Southern Africa maybe turning full circle. Many governments and multilateralinstitutions were dismissive of or even hostileto customary tenure systems in past decades. In 2002the World Bank and USAID called for privatisation ofland in Mozambique (Hanlon 2002), yet a year laterthe same institutions began to acknowledge some ofthe strengths and adaptive capacity of these systems(Deininger, 2003).However, in the current context of large scale landdeals, the legal defensibility of the rights of the poor iskey for navigating the new terrain. This has to backedby robust oversight mechanisms and the developmentof pro poor local institutional capacity with budgets andthe human resources to provide legal support, contractanalysis and management services for representativebodies of local rights holders who may be enteringinto negotiations with powerful investors. Developingand unlocking capacity for decentralised local governanceand finding the resources to build this capacitycontinue to be of great importance. As Cousins hasobserved: ‘Power imbalances cannot be addressed bylaw alone’ (Ben Cousins, interview 12 September 2011).ConclusionsExperience in several Southern African countries drawsattention to the rapidly widening asymmetries of powerand the continuing imperative to resource democraticdecentralisation and land governance systems whichpromote downward accountability to resource users,while ensuring horizontal and vertical links, and legislativeoversight.The impetus for decentralisation and how it is framedare reflections of the contested politics that drive it. Theexternally led prescriptions and conditionalities thatemanate from the World Bank and multilateral institutionsembody an inherently conservative perspectivewhich promotes decentralisation as part of a goodgovernance and market friendly agenda. The alternativeand more radical view of decentralisation is about theneed to transfer power (and associated responsibilitiesand capacities) to local people and resource users in abid to democratise society and ensure that the interestsand the voices of the poor majority remain prioritised,in order to counter the intense national and globalconcentration of wealth and power in fewer and fewerhands.In the current context, increasingly characterised by thespeculative responses of global capital to the new economicsof scarcity, pro poor land governance systemsmust appropriately describe and defend the rights ofthe poor. Such systems are essential in order to providesupport for local actors in a fast changing economicenvironment, where productive land occupied by thepoor is rapidly assuming new value as a potentiallyprofitable commodity for international investors andtheir local partners.ReferencesCUERENEIA, A. 2001. The proces of decentralisationand local governance in Mozambique [Online].Available: http://www.iss.co.za/uploads/BOTSWA-NASEP03.PDF [Accessed 13 September 2011].DEININGER, K. 2003. Land policies for growth andpoverty reduction, New York, World Bank.

110 Decentralised land governance: Case studies and local voices from Botswana, Madagascar and MozambiqueHANLON, J. 2002. The land debate in Mozambique: willforeign investors, the urban elite, advanced peasantsor family farmers drive rural development?[Online]. Oxfam. Available: http://www.oxfam.org.uk/resources/learning/landrights/downloads/debatmoz.pdf[Accessed 13 September 2011].KURODA, H. 2011. Clean Energy: Helping Propel Asiato New Prosperity [Online]. International Institutefor Sustainable Development. Available: http://climate-l.iisd.org/guest-articles/clean-energyhelping-propel-asia-to-new-prosperity/?utm_source=lists.iisd.ca&utm_medium=email&utm_campaign=Linkages+Update+-+Issue+%23175+-+14+September+2011[Accessed 15 September 2011].WORTHY, M. 2011. Broken markets: How financialmarket regulation can help to prevent another foodcrisis [Online]. World Development Movement.Available: http://www.wdm.org.uk/sites/default/files/Broken-markets.pdf [Accessed 15 September2011].InterviewsBEN COUSINS, interview 2011.

Decentralised Land Governance: Case Studies and Local Voices from Botswana, Madagascar and Mozambiquereviews the literature on decentralised land governance in Southern Africa, highlighting key issues andchallenges of ‘land governance from below’. The case studies illuminate decentralised land governancepractices and outcomes, as located in the social, legislative and institutional contexts of Botswana,Madagascar and Mozambique. Supplementing existing research on the selected country cases, the authorsundertook comprehensive and in-depth interviews with selected key informants who illuminate the problemsand responses. The book provides analysis and further reflection on key lessons from the country cases.Through a range of voices representative of key stakeholders in local land governance, the book aims toexchange knowledge of experiences and practices at country-level. Decentralised Land Governance: CaseStudies and Local Voices from Botswana, Madagascar and Mozambique is a source for land practitioners,scholars and policy makers, stimulating informed and evidence-based policy debate – in the relevant sectorsand, more broadly, in society – about the merits and demerits of decentralised land governance.PLAASInstitute for Poverty, Land and Agrarian StudiesSchool of Government • EMS Faculty