Whose Land Is It? Commons and Conflict States - Rights and

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Whose Land Is It? Commons and Conflict States Why the Ownership of the Commons Matters in Making and Keeping Peace

Liz Alden Wily

A B O U T T H E AU T H O R Liz Alden Wily is an international land tenure specialist and a Rights and Resources Initiative Fellow.

T H E R I G H T S A N D R E S O U R C E S I N I T I AT I VE The Rights and Resources Initiative is a global coalition to advance forest tenure, policy, and market reforms. It is composed of international, regional, and community organizations engaged in conservation, research, and development. The mission of the Rights and Resources Initiative is to promote greater global action on forest policy and market reforms to increase household and community ownership, control, and benefits from forests and trees. The initiative is coordinated by the Rights and Resources Group, a nonprofit organization based in Washington, D.C. For more information, visit www.rightsandresources.org.

PA R T N E R S

for people and forests

SUPPORTERS

The views presented here are those of the author and are not necessarily shared by DFID, Ford Foundation, IDRC, Norad, SDC and Sida, who have generously supported this work, nor by the Parterns of the coalition.

Whose Land Is It? Commons and Conflict States Why the Ownership of the Commons Matters in Making and Keeping Peace L iz alden wILy

Rights and Resources Initiative Washington DC Whose Land Is It? © 2008 Rights and Resources Initiative. Reproduction permitted with attribution Cover photo: Valley farms and a village, near low pastures and high pastures in Bamyan Province, Afghanistan. Photo by Liz Alden Wily.

iii

CONTENTS

Introduction

iv

1 The Issue

1

2 The Cases

7

2.1 The Summer Pastures of Afghanistan

7

2.2 The Wooded Savannas of Sudan

15

2.3 The Tropical Forests of Liberia

23

Conclusion

31

Endnotes

36

References

41

iv

INTRODUCTION

This paper focuses on the tenure fate of three commons: the 30 million hectares of pasturelands in Afghanistan, which represent at least 45% of the total land area and are key to livelihood and water catchment in that exceedingly dry country; the 5.7 million hectares of timber-rich tropical forests in Liberia, 59% of the total land area; and the 125 million hectares of savannah in Sudan, half the area of the largest state of Africa. All three resources have a long history as customary properties of local communities. They also share a 20th century history as the property of the state. There is nothing unusual in this contradiction. Between one and two billion people on the planet today are tenants of the state. They live on and use customary properties on which in the eyes of their national laws they are no more than lawful occupants and users. When their expansive collectively-owned forest, pastoral and fishing swamp lands are taken into account, over 4 billion hectares are involved, nearing one third of the world’s total land area. Perhaps this overlapping tenure would not matter if occupancy had been secure and in due course confirmed as the property of its respective community holders. But this was not to be. Country to country, continent to continent, customary owners have found their possessions de-secured. Discomfort with contradictory overlapping tenure has segued into contestation and contestation into conflict and claim. Sometimes this has taken a century or more of rumbling discontent to emerge as a single issue between governments and their people (Afghanistan). At other times it catalyses quite suddenly into a clear reason to go to war (Sudan). In others still, it becomes an issue emerging out of civil war as newly politicised rural populations look to ways to halt an erosion of rights which they have for too long considered beyond their power to remedy (Liberia). Almost nowhere around the world has the ownership of the commons and integral to this the status of customary land interests not been a source of contestation between traditional owners and the state. While in industrial economies the issue is generally being worked out peacefully (Australia, New Zealand and Norway) this has proven much less so the case in rapidly transforming and frequently volatile agrarian states and where customary landholders are often majorities (Bolivia, Angola and Indonesia). Considerable turmoil may surround passage into new paradigms. This paper explores the case in the three states of Afghanistan, Sudan and Liberia. These are selected on the basis of the author’s direct experience working in these countries toward peaceful resolution in favour of the customary owners. To this extent this paper pretends to be neither neutral nor the cases fairly sampled. The issue is certainly as active in Latin America as it is in Sub-Saharan Africa, and emergent in Asia. Still, these cases provide good examples of both why and how the matter of the commons comes to the fore and is associated with civil conflict, and examples of how it is being managed today.

1

1

The Issue

First, what are the commons? Second, what is

each member of the community by virtue of his or

the tenurial contradiction referred to above? Third,

her membership. Overlaying these may be other

just how significant an issue is this in civil conflict

sets of subsidiary rights to the resource, such as the

today?

seasonal access and use rights to pastoral zones frequently enjoyed by nomadic populations or

Traditional commons are land and land-based A glance at the literature shows the very idea

members of neighbouring settled communities.1 This pattern becomes more complex where use rights even over farmland are limited to usufruct or where settlements move periodically within

of commons has expanded dramatically over the

the communal domain. In these cases the entire

last decade. For some, commons must now include

domain is generally the collective property of the

knowledge as commons (libraries, the internet),

community, not just the communally-used assets

medical and health commons (hospitals, genet-

within it, including forests, pastures or fishing

ics), cultural commons (public art, landscapes),

swamps. This pattern is most clear where shifting

neighbourhood commons (sidewalks and gardens)

cultivation is dominant, as in parts of Sudan and

infrastructure commons (roads), market commons

Liberia. It is not the case in Afghanistan where

(exchange systems) and global commons from

houses and irrigated farms have a long history of

oceans to outer space and food security. These new

permanency. Accordingly, in Islamic, customary and

commons, bravely classified by Hess (2008), may

modern statutory law, houses and farms are well-

well put the traditional commons in the shade and

accepted as the private property of the customary

certainly pose exciting intellectual and legal chal-

holders. Not so, as we shall see, for those assets

lenges around the nature of their possession and

which they hold traditionally for good reasons as

governance.

their collective property.

The traditional commons are nonetheless the focus of this paper. They may be defined as those lands or landed assets like timber, water and surface or near-surface minerals which by custom social communities own in undivided shares, un-

The Tragic Thesis of the Tragedy of the Commons The premise of this paper is that a major seed

like those assets which they own individually or

of conflict exists in the contradiction posed be-

as families, such as houses and farms. Commons

tween traditional ownership of communally-used

tenure embodies radical communal ownership of

assets like pastures and forests and their wide-

the resource as well as use rights to those re-

spread statutory designation as public land. The

sources. The latter are possessed individually by

meaning of public land is not perfectly consistent

2

whose Land Is It? Commons and Conflict States

across countries or continents, but broadly holds

domain of that polity. This conflation made it easy

these three elements to one degree or another; that

to diminish the possession held by indigenous

the land is considered ownerless (terra nullius),

populations to a permissive right of occupancy and

un-own-able, and if it is conceived as property at

use, and even this held at the will of the state.

all, it exists as the shared property of the national

Two dates stand out in this legal confabula-

community held in trust by the State. The practical

tion of reality: first, the 1823 Marshall Ruling of the

reality is more straightforward; public land almost

US Supreme Court, which finally set the denial of

everywhere is administered by the State and is the

customary ownership by natives outside Europe

de facto property of the State. Often the distinc-

on legal course,3 and second 1885, when European

tion between Government Land and State Land is

plenipotentiaries sat around a table in Berlin and

itself obscure. The rights of indigenous populations

decided that it was unnecessary to acquire (buy)

to these lands are accordingly limited to de facto

the land from African natives.4 At the stroke of a

tenancy on government/state land.

pen Africans were (as natives in Latin America and

It is unfortunate that space does not allow detailed exploration of how this contradiction has evolved for this is increasingly elemental to under-

Asia had been before them) deemed essentially landless and their assets ripe for the picking. The fact that pre-state Africa was also pre-

standing tensions in much of the agrarian world

capitalist Africa greatly aided the colonial case; Af-

today and which may spill so readily into conflict

ricans clearly did not regard their lands as tradable,

and civil war.

fungible assets and thus to European minds need

In brief, it is vital to note that this evolution

not be accorded status as real property owners.

has not been accidental, nor is it accidentally

Needless to say, the case was even stronger for un-

sustained. It has roots in the resource-grabbing

cultivated lands where possession was less visibly

habit of colonial enterprise and the just-as-greedy

entrenched and around which the wasteland thesis

resource capture by modern post-colonial enter-

would consolidate (uncultivated land = unowned

prise, in which political and economic elites conjoin

land or wastelands = natural state property). This

in colonial-like manner. Moreover, the land thefts

would eventually evolve into the tragic thesis

delivered have been typically legal, with European,

of the tragedy of the commons, tragic in that it

especially English, and then American law put to

consolidated the idea of collectively-used assets as

service.

un-owned. Of course this was a thesis which carried

The early means of colonizers of the Americas,

its own self-fulfilling prophecy; in the face of denial

Asia and Africa was simply to deny that discov-

and dispossession of communal ownership and the

ered peoples owned the lands they were found to

failure to provide legally and practically for commu-

occupy (although rarely with full support of home

nal ownership to mature in the face of pressures,

jurists, as McKay 2001, observes). Where Aboriginal

these properties indeed often became ‘open to all’

Title, as it became known in early America, was ac-

and would endure attrition, degradation and loss,

knowledged, the tactic was to cleverly relocate this

against which the State alone would perceive itself

right as a form of state sovereignty (viz: Americo-

as Guardian.5

Indian nations) and to then declare that this indigenous sovereignty could not co-exist with the sovereignty of the new modern State.2 Thus McAuslan, a noted scholar of tenure jurisprudence, refers

The Modern State as Colonizer However, we should not dwell unduly on the

to an elision of imperium and dominium (2006). In

metropolitan colonial origins of this disposses-

lay terms, this means that the geographical sphere

sion, for the paradigms were (with few exceptions)

of political sovereignty was conflated with real

retained without challenge by post-colonial ad-

estate rights to the resources within the geographic

ministrations.6 Even were those new governments

3

unknowing at the time, this cannot be claimed for

land laws do away with the notion of customary

the manner in which capture of customary land

land interests as less than real property. Cumula-

interests has since been entrenched and manipu-

tively such changes amount to a significant new

lated. Thus while modern Kenyans for example,

trend in land reform, and in the process reorient

trace the origins of mass land loss and injustices to

the dominant focus of 20th century reform upon

colonial masters, they are only too well aware that

inter-class redistribution of rights to farmland,

harshest delivery has been over the last three to

towards off-farm resources and towards the

four decades. So too they may note that the lands

state-people relationship in property.10 Inter alia,

most under conflict are commons, those unculti-

a common result is stark diminishment of public

vated or forested lands within customary domains

lands as State, Crown or Government Lands, and

and which have been most vulnerable to involun-

(more partial) decline in government authority over

tary loss.

newly-acknowledged customary assets, often via

7

Nor must it be thought that these trends

localised land boards.11

have been confined to formerly colonized states. Rather, the trend is fully inclusive of states like Afghanistan and Nepal which adopted colonial-like property norms with alacrity and reconstructed

The Law is Never Enough And yet, success is uneven in even nations

their own feudally-derived norms towards more

which have embraced reform in the status of cus-

state-ist resource capture (and often on the advice

tomary land rights. Shortfall most affects unregis-

of international aid agencies).8 In fact, political-

tered properties owned collectively: the swamps,

legal denial of the commons as ownable or owned

plains, pastures, and forests which belong cus-

became such a common feature of the 20 century

tomarily to one or other definable community and

that it cannot help but be seen as a natural conse-

which are not subdivided into family parcels for ob-

quence of capitalist transformation and modern

vious agro-ecological reasons. Procedures for firmly

state-making. To what extent it was a necessary

securing these as private group-owned property are

consequence is now open to dispute. While this

still undeveloped, or ambivalently included in the

should (and eventually usually does) divide people

terms of new policies and laws.12 Thus while new

and their governments for a period, there is a more

Tanzanian law (1999) guarantees the equivalency of

regrettable tendency for this to first play out in

customary rights with those obtained statutorily

painful inter-ethnic strife, and most noticeably

and irrespective of whether or not these are held

where one ethnicity is perceived as the beneficiary

by individuals, families or communities, it has only

ally of the state. Afghanistan and Sudan provide

been through concerted effort to make this real on

concrete examples of this.

the ground that the law begins to be interpreted as

th

inclusive of community woodlands and for these

Emergent New Land Reform So what is the remedy? Unpacking of this par-

to be entrenched as property, a process which is now widely underway.13 Similar trends are seen in Mozambique and Uganda where comparable

ticular contradiction lies at the heart of a great deal

protection of woodland and pasture is tangibly

of land reform around the world today, whether

delivered only through community consciousness

in the handling of the land rights of indigenous

and action.14

minorities in industrial economies (as in Australia,

Nor is it anywhere near assured that whole-

Norway and New Zealand) or in changing status of

sale tenure reform will liberate the legal subservi-

majority customary rights in agrarian states (as in

ence of indigenous and customary property rights.

Bolivia, Guatemala, Papua New Guinea, Tanzania,

In 2008, most of the two billion persons ac-

Uganda and Mozambique).9 New constitutions and

knowledged as customary occupants around the

4

whose Land Is It? Commons and Conflict States

world remain ownerless in law. This is so despite

ment for food production.17 Even without the oil,

proclamation (such as by the Commission of Legal

timber and the fish within these community assets,

Empowerment of the Poor) that securing property

every hectare of exploitable land is to be competed

rights is a key to social change and equity, or the

for and at times fought over. Middle Eastern, Chi-

many echoes of this in the development advocacy

nese, Malaysian interest in acquiring public lands of

of international financial institutions and bilateral

African, Asian and Latin American states to produce

donors.15 We are rightly told that the world’s poor

food and fuel crops for themselves rises exponen-

often already have assets and recognising these

tially at this time, accelerating a longer history of

as property is the stepping stone to clambering

foreign capture of agrarian commons for agri-

out of poverty. Of course when Hernando de Soto

business (Brazil, Bolivia, Madagascar, Cambodia).

(2000) revived the clarion call for ‘formalizing the

The problem is, these lands are not genuinely the

informal’ he had in mind the shanty shacks of

property of the governments which wilfully lease

modern cities and the houses and small farms of

these to investors; these lands are more accurately

millions of smallholders. But what of the millions

the customary property of the rural poor.

of hectares of customary lands held collectively by the world’s global rural poor? Surely the recognition of these vast and valuable assets as their rightful property is a first rung on that ladder of change?

Customary Rights as a Rising Factor in Civil Conflict Resentment of land continuing communal land loss is therefore unsurprisingly increasing

The New Global Land Grab To a real extent, it seems not. Why? It may be

tinder for civil conflict and war. If we cast our eyes around the 71 conflicts in the world today, we see that not only are the majority of these conflicts

that these resources are considered too valuable by

intra-state affairs (85%) but that two-thirds are

the political elite to allow ordinary citizens to own.

driven by contested claims to land.18 Mostly this is

This is doubly so where communal lands bear valu-

in a territorial sense and often has some roots in

able products. As values grow and state capture

unjust treatment of customary occupation as legal

consolidates, the opportunity to recognize those

tenure, as is illustrated in cases from Bougainville

lands as local property declines.

to Kurdistan, from Oromia to the Hmong areas in

It is not far-fetched to suggest that we are

Laos. Wherever they exist, minerals, timber and oil

witnessing a new era of resource capture, one which

also generate conflict as to who owns and controls

deeply interferes with local rights and especially the

these valuable resources, as witnessed in Angola,

commons. Global land shortage for food and bio-

DRC, Indonesia, Colombia and the Niger Delta. Land

fuel production, along with a globalised economic

grievance even has a part to play in that one-third

relationship which enables one state to readily

of conflicts built around sharply divided political

lease its land to another, entrenches and magni-

beliefs, a fact not lost upon the Marxist rebels in

fies state interest in unregistered lands. Just as

Indian states or the recently victorious Maoist

the world’s customary poor begin to see their land

rebels in Nepal, and who have accordingly placed

rights placed on a road to reform, a new tug of war

equitable land reform high on the agenda of the

over resources impedes this progress. In the same

new republic.19

month of July 2008, while New Zealand handed back yet another tract of land to its indigenous community,16 Sudan leased yet another tract of customary property to not just non-customary owners but to non-Sudanese, this time to the Abu Dhabi Govern-

A Primarily Agrarian Concern Review of conflicts also shows that Africa is disproportionately the site of civil war,

5

especially since 2000 (48%). It hosts more coups,

or income but also the failure of their elders (and

armed conflicts and causes more civilian deaths

the governments they create) to get it right, to

than any other continent.20 This relates to a

make a safe transition from the village to the na-

wider trend, that the site of civil conflict is over-

tional state, to keep relations consultative and ac-

whelmingly agrarian. Few wars are in industri-

countable – and distribution of resources relatively

alized states. Low per capita income and growth

stable and fair where this had previously been the

rates, along with misgovernance with misuse

case. In this way, entry into the 21st century has

of resource revenue may be prime triggers, as

proved a tipping point, an age-set change after half

explored by Collier (2004, 2007). Land grievance is

a century of post-independence in especially Africa,

integral to that toxic mix, combining challenge

where most wars are being fought.

21

to inequity with challenge to insecurity of rights to our land.

From State-making to Remaking the State

The Catalysing Effect of Conflict An element of the socio-political transitions As experiences from Sierra Leone to South

uncertainly underway which may need clarification

Africa, Aceh to Angola and Guatemala to Cambo-

is that while contestation around land increasingly

dia bespeak, it may take the experience of war to

settled as a people-government issue, there is noth-

crystallize and articulate the conflict between

ing in this conflict which suggests communities

legal and customary ownership of communal

wish or can do without the state. Rather, it is a dif-

resources as land theft. Or conflict may serve as

ferent relationship which is widely and popularly

a catalyst for challenging broader inequities and

sought, and which requires not just different land

settling upon foundational land and resource

laws but a different way of governing land. No less

rights issues. Kenya and then the DRC are just

than the reform of the state in its current powers

most recent in a long line of internally-conflicted

and roles is fairly widely being sought, a task which

states where lack of jobs, housing, farmland and

makes it all the more difficult to achieve.

political disappointment segued with speed into

The centrality of land rights to governance is

the powerful question “to whom does the land

hardly surprising. While there are complex factors

belong?”

which bring a country to war, in agrarian states, land and other natural resources will always be

The Turn of the Century as a Changing Age There are no signs that these civil conflicts

central. Political and economic grievances focus around the right to land and its distribution. Concerns as naturally center upon those lands which are least securely held by poor majorities and

will be the last point of conflagration, either on the

have been experienced as most vulnerable to loss

African continent or in Asia and Latin America.

– the commons. In this way the 20th century state

Just as populations begin to challenge con-

obsession with the security of the individually-held

tinuing inequities among each other or with the

house and farm is shifting to off-farm collective re-

state, the latter seeks to entrench its hold on the

sources. The role and power of the state over land is

resources that are once again at stake. The fact that

itself coming under challenge. Thus while the issue

most of those affected in the developing world are

of communal property security is arguably the last

poor and young adds piquancy and in frustration,

colonial question in the formerly colonised world, it

militancy. It may be not fanciful to suggest that

is also a new question, linking control over natural

what the young are protesting is not just entering

resources more directly to political systems and

the 21st century with little hope of adequate homes

the results of which may well reshape the role and

6

whose Land Is It? Commons and Conflict States

powers of state. In the process, ideas of property

fully focused upon conflicted states, polities where

are themselves liberated from the straightjacket of

the issues are most immediately felt, and where

introduced norms. Justice in distribution of rights

populations look with new eyes to the past and

also takes on a new imperative. Reflections of this

with new demands for the future. How far post-con-

are seen in the gathering discourse on land reform,

flict administrations ignore or pluck out festering

its links with democratisation and a shift from

thorns of land grievances may be the difference be-

state-led to people-led reformism.

tween a country returning to war or not, or at best

22

in the short-term, dissatisfied return to pre-war

Conflict over Collective Property Rights is Likely to Rise These are people-empowering trends which

business as usual. As is now fairly well established, around half of all countries which have been at war with themselves over the last 60 years have seen civil conflict reignited, and often with more sharply-

are yet to mature with force. In their absence

defined land-related grievances among their

it may be expected that more, not fewer, civil

primary drivers.24 Tackling those issues promptly in

conflicts will arise in coming decades around the

the aftermath of war seems commonsense.

question ‘to whom does this land belong?’ Water,

These are concerns which the peace mediating

oil and mineral are also bound to come into sight.

and post-conflict humanitarian and reconstruction

While recognising traditionally collective land

sectors are slowly coming to grips with. Just as prin-

assets as the private group owned property of com-

ciples of international restorative justice begin to be

munities is an obvious remedy, the shift from ben-

entrenched (the UN Pinheiro Principles, 2005) these

efit-sharing to genuine state-people shareholding

actors are becoming painfully aware that the key

enterprise seems inevitable for less evenly claimed

may lie less in getting land, housing and property

community assets such as affecting subterranean

relations back to the way they were immediately be-

minerals. Until such trends towards more demo-

fore the conflict than in their thorough reform. Yet

cratic and equitable control of resources emerge, it

more awkwardly, that the crux of needed reform lies

seems wise to eschew celebration that the number

less in the state’s management of inter-communal

of civil conflicts and wars have been declining,

property relations - the flashpoint of most conflict

as proclaimed in some recent human security

- than in the state-people property relationship

reports.

which lies behind this inter-ethnic volatility.25 These

23

are matters which this paper attempts to explore

Not all States Go to War over this Issue The issues discussed above are on the agenda

in the cases of Afghanistan, Sudan and Liberia. The properties most at stake are those which pose the most challenge to the political, economic and legal

in no less than 150 agrarian states around the

conventions built around the state-people property

world today. Practically, most attention is right-

relationship – the commons.

7

2

The Cases

2.1  The Summer Pastures of Afghanistan

Pastures (or rangelands) constitute a minimum of 45% of the total land area of Afghanistan, or up to 60% of the total area when useable areas classi-

to supervise foreign relations in the new state of Afghanistan until the First World War. The repercussions of this ‘Great Game’ would

fied as wastelands are included.26 Pastures support

be many. The Sunni Pashtun themselves were

an important plank of the traditional economy

divided, half to become citizens of the new Afghan

of the majority of Afghans, not least in the end

State and half to remain under formal British rule

production of woollen and leather goods, rugs and

in what is modern-day Pakistan, a fact which helps

carpets. Who owns, controls and uses pastures,

explain the support which the (Pashtun) Taliban

has been at the heart of contested inter-ethnic

garner from fellow Pashtun in Pakistan today.

relations and outright conflict in Afghanistan for no

Uzbeks, Tajiks and Turcos would also be split asun-

less than a century.

der. Those living north of the Amu Darya would in

27

due course belong to the satellite Soviet states of

Proxy Colonization

Turkmenistan, Uzbekistan and Tajikistan while their relatives south of the river became part of Pashtun-

Proxy colonization began in 1880 as the British

controlled Afghanistan.

encouraged the Pashtun tribal federation in what is today south-eastern Afghanistan to extend its authority northwards. With funds, advisers and thousands of muzzle-loaders from the Raj, the federation’s leader, King Abdur al Rahman, amply

Losing the Pastures by Conquest and Decree In 1894 these ancient populations in the

succeeded. All peoples northwards to the Amu

north of new Afghanistan would see the first of

Darya River (the ‘Oxus River’ to the British) were

many waves of Pashtun settlers arrive, competing

brought to heel and the new State of Afghanistan

increasingly for farm and pasture lands.28 The situ-

created. The British objective was to create a loyal

ation was more severe for the Shia Hazara tribes of

buffer state against Tsarist expansion southwards.

the central highlands (the ‘Hindu Kush’). Despite a

It worked. By 1881, after half a century of Anglo-Rus-

millennium of settlement and a reputation as fierce

sian imperial rivalries, the two parties agreed that

and independent (not least as notorious raiders of

the Amu Darya River would be the limits of their

the Silk Route, which passed through their territo-

respective influence. The British would continue

ries) the Hazara had never formed a single kingdom

8

whose Land Is It? Commons and Conflict States

or alliance of their own. Nor in the decades prior to

The high altitude pastures were integral to their

British intervention had they managed to prevent

system of transhumance and additionally essential

Pashtun encroaching on their lands. In 1841 a trav-

to providing the fodder and fuel needed for the six

elling British emissary recorded that the Hazara’s

month long mountain winter in the deep valleys.

plains lands around Kabul and south to Kandahar

In any event, Amanullah’s multi-ethnic policy did

“are being forcibly occupied by Pashtun.”29 By 1880

not last long. Under successive rulers (1929-1978) Pa-

the Hazara were broadly confined to the moun-

shtunisation became a formal state objective. This

tains, those on the eastern periphery forced to pay

included consolidation of Pashtun Kuchi posses-

tribute to keep the Pashtun at bay.

sion of pastureland. Indigenous populations could

Now, with the new ambitions of Abdur al Rahman as modern state-maker, even this rugged

at times access their customary pastures but only at the will of settled or visiting nomads.31

mountain region known as Hazarajat was thoroughly invaded. Pashtun authority was installed

Civil War

right to the community level, along with harsh taxes (16 new taxes were imposed in 1893 alone).

As is now well-known, the murder of President

The Hazara rebelled. Furious, Abdur al Rahman

Daoud in 1978 ended the Pashtun dynasty and gave

ordered that “no sign of these irreligious people

way to a communist revolution, to be sustained

should be left in these lands and mountains” and

for a decade by Soviet invasion and support (1979-

that their property be redistributed among loyal

1989). Gorbachev’s withdrawal saw the country

Kuchi (Pashtun nomads). This was duly effected in

collapse into inter-tribal warfare (the Mujaheddin

1893 and 1894. Clutching their leather-inscribed

period, 1991-1996). This was brought to an end by

land grants (firman), favoured Kuchi clans began

American backed conquest by the Pashtun Taliban

to enter the region for the rich summer grazing

in 1996, in turn crushed by an American-backed non-

which had underwritten the Hazara economy for

Pashtun alliance in which Uzbeks and Tajiks were

centuries. By doing so the Pashtun Kuchi nomads

dominant. In December 2001 the Bonn Agreement

abandoned their historical migration southwards

installed Hamid Karzai as President.

through Pakistan and where many of fellow Pashtun had settled. Initially, Kuchi attempted to settle

Making the Pastures Government Land

in the Hindu Kush/Hazarajat but were uninterested in farming and defeated by the harsh conditions in

Further transitions had meanwhile altered the

the mountains valleys. Still, within a year or two,

status of pasture. First, as USAID found its feet as

Hazara who had not been killed or marched to

a development agency in the 1960s it guided King

Kabul as slaves, were, a later royal chronicler would

Zahir Shah’s Administration towards the introduc-

admit, “without livelihood.” The loss of pasture

tion of modern (western) property law, administra-

access more than anything else crippled their agro-

tion and land taxation.32 By 1964 several hundred

pastoral economy.

technicians were being trained and with several

30

Relief of sorts came 30 years later. In 1927-28

hundred vehicles set out to title the country. They

King Amanullah, the liberal grandson of Abdur

would cover less than 10% of the area by 1978. Half

al Rahman, recalled the firman issued to Kuchi

that area was registered as family owned farm-

and reissued these restricting them to the high

land. Most of the remainder was pasture. This was

pastures. By this act, the monarch implied that

recorded as Government Land, in accordance with

their grants were access rights rather than real

the new registration and land tax law of 1965.

ownership, which as monarch he retained. While

This titling and a subsequent Pasture Law

Hazara regained their valleys and near pastures,

of 1970 declared that while already-issued rights,

this was hardly the restitution they had demanded.

including royal grants, were to be respected, no

9

pastures were to pass into private ownership or be

the time. Subordination was profound, manifest in

leased or sold. Pasture as a whole was designated

deprivation of territory, pasture access and ethnic

public land. Technically, this diminished royal

discrimination in the fast modernising society.

grants to Kuchi and the many inheritance and

Discontent grew through the 1970s and began to

transfer deeds in their regard made over the years

find expression in local organization.38 Ironically,

to possessory access on de facto government land.

the farm distribution reforms advanced during the

In practice, this was not well-absorbed by nomads,

1960s-1970s and targeted in Hazarajat to large feu-

nor was this made explicit in the text entitlements

dal landlords were to do more for politicising Haz-

which continued to be issued then or since.33

ara in general against Pashtun encroachment than

Nor did nomad (Kuchi) dominance of the sum-

deliver land to the substantial numbers of arable

mer pastures alter. If anything, hand in hand with

landless. The stronger local focus throughout was

flourishing Pashtunisation, it had become more

upon the pastures, not the irrigated farmlands.39

entrenched. Kuchi dominance doubled especially in Hazarajat where wealthier nomads, establishing

Recapturing the Pastures

themselves as traders and transporters along with livestock keeping in the 1950s, were able to acquire

Patterns of inter-ethnic social and land subor-

whole valleys of small farms, often in lieu of minor

dination were to change with the civil war through

debts incurred by Hazara in purchasing cloth, tea

the 1980s. Often a first act of war by Uzbek and

and sugar in ways which are typical of mechanisms

Turkmen communities in the north was to (brutally)

of feudal indebtedness generally.

evict Pashtun settlers - and recapture the pas-

34

At the same time, new law actively empowered

tures. Pashtun settlers would comprise the larger

agricultural officials to control the allocation and

proportion of refugees fleeing to Pakistan, where

use of pastures. With the useful instrument of land

the puritanical Taliban movement would take root.

and livestock taxation to hand, many accomplished

Hazara in mountainous central Afghanistan slowly

this with zeal and sometimes personal benefit. In

acquired arms and again as first action, began to

either case Pashtun control over the land-holding

prevent Pashtun Kuchi entering the region with

of non-Pashtun groups was usually consolidated at

their animals in early summer, from the early 1980s.

the hands of mainly Pashtun officials. On grounds

Except for a brief and violent period in the late

that ‘all pasture belongs to Government’ farming

1990s when Taliban rule made Kuchi return to parts

schemes were launched in more accessible pas-

of Hazarajat possible, and resulting in some inci-

tures, often by officials or even by the Ministry of

dents of terrible violence, few nomads have since

Agriculture itself. Settlement schemes for people

successfully returned to Hazarajat.40

35

without arable land also flourished in the reformism of the 1960s and 1970s and in which Kuchi

The Tragedy of Public Lands

nomads were identified as priority beneficiaries.36 The results for poorer and power-lacking local

The use and management of the summer pas-

populations were predictable; legal and practical

tures had also altered by 2001. Already in the 1970s,

access to the precious pasturelands at the foun-

over-exploitation of near pastures for fodder and

dation of their livelihoods was frustrated. This

fuel and expansion of rainfed farming into these

was particularly so for the central zone Hazara;

dry fragile areas was being widely reported.41 With

although their virtual enslavement from the 1890s

the chaos of war and the demise of draconian state

was much eroded, Hazara continued to be ex-

control limiting the worse excesses, the nature of

ploited as labour both within and beyond the Hindu

public lands as property of everyone and no one

Kush, and inter alia, were deprived of the many edu-

took its toll. Hazara, long prevented from using the

cational developments which were flourishing at

pastures for rainfed cultivation and in the pro-

37

10

whose Land Is It? Commons and Conflict States

cess having turned more to farming, dramatically

Agriculture was most concerned to retrieve its he-

expanded rainfed cultivation into the pastures.

gemony over pastureland to halt expanding rainfed

Contrarily, warlords in especially the north, taking

farming, the Ministry of Finance eyed the pastures

a leaf out of the book of Government during the

as land to offer local and especially foreign inves-

1970s, began to open up pastures for commer-

tors. The Ministry for Tribal Affairs (nicknamed the

cial cultivation, limiting local access.42 Land and

Kuchi ministry) was determined to help the nomads

pasture-short communities even in areas where no

regain their control over the summer highland and

warlords or officials reigned also began to com-

northern pastures. Kuchi themselves did not ini-

pete with each other for access to high altitude

tially force the issue; they had lost half their stock

pastures, again justifying this on the basis that

during the 1999-2002 drought, and were widely

as ‘pasture belongs to Government’ then it must

reviled by Afghans, including more liberal Pashtun,

be open to all. Local leaders, especially following

for their close association with the Taliban and

the departure of the Russians in 1979 added to the

their role in atrocities committed on their behalf

problem by resettling returnees on some of the

in different parts of the country, including the pur-

lower pastures, multiplying settlements. Every-

posive ravaging of the rich grape-planted Shamoli

where, shortage of pastureland, fodder and winter

Plains by their herds.47

fuel (high pasture bushes) were by 1990 chronic.

The restitution of nomad control of the pas-

Distinctions began to arise between those com-

tures was not something which local non-Pashtun

munities which restored recaptured pastures to

populations in the centre and north were about to

customary village or valley-based control and those

allow. Their stance was that they had not fought

where customary norms battled with encroaching

the long war and liberated themselves and their

elites, warlords and officials.43

resources from Pashtun domination, only to see this reinstituted. Return of Pashtun to their settle-

Restoring Things to How They Were

ments in the north was denied. Nor was return as a whole going to plan; several million refugees

The response by the post-Bonn Adminis-

and displaced persons clearly had no intention of

tration from 2002, largely still staffed by 1970s

returning to rural areas where landlessness and

officials, was determination to return conditions

exploitative relations reigned and no jobs and

to the way they had been in 1978. While the hu-

education could be found. They were cluttering up

manitarian community anxiously sought means

the cities, Kabul alone growing threefold between

to get four million people back to their home

2001 and 2004. A key group of those now settling

areas (including Pashtun to the north and puzzled

in towns were landless and stockless nomads

at their obvious unwelcome by local Uzbek and

and who would regain stock only as herders for

Turkmen communities) the reconstruction aid

wealthy Kuchi businessmen.48 As stock numbers

community wanted the agro-pastoral economy

began to recover in 2004, Kuchi leaders revived

back on track. Inter alia it advised the re-launching

their lobby for recognition that they were the

of mass titling and the re-securing of “government

true owners of the summer pastures according

property.”45

to the original royal grants of the 1890s and 1920s

44

By 2003, several ministries were urging the re-

and subsequently, triggering new anxiety among

issue of the Pasture Law of 1970, to once again de-

settled populations in the central and northern

clare that the pastures belonged to Government.46

zones of the country.

They dismissed as irrelevant a moderate edict

By 2004 it seemed that pasture would be de-

passed a year or so earlier by the Taliban (2000) in

clared Government Land and the conflict between

which communities were at least acknowledged as

local customary rights and non-local interests

the owners of near pastures. While the Ministry of

would be left to fester for another century. This

11

indeed begun to unfold, in a series of new laws

based pasture rehabilitation and management.55

entrenching Government interest over non-private

This drew support from the terms of a new Forest

lands and encouraging private foreign investment

and Rangeland Policy (2005) which recognises that

by permitting leases of even “barren” land for peri-

the Ministry could no longer control the pastures

ods up to 90 years. Within the Kuchi community,

as it believed it had done in the 1970s, but which

moderate leaders were willing to recognize the

stopped short of acknowledging communities as

pastures as owned by local communities so long

outright owners.

49

as nomadic seasonal access was guaranteed. Unfortunately, these moderate voices were pushed aside.50

Looking to Real Cases for Guidance The lessons cumulatively emerging from

Offering Breathing Space and A Way

especially the FAO initiative have been powerful and salutary.56 The strongly local collective basis

Forward

of pasture ownership has been confirmed and

Concurrently, the Ministry of Agriculture

demonstrated as the logical basis for rehabilitat-

during 2002-05 was gradually persuaded that

ing the vast but depleted rangeland resource

closer examination of the issues through localised

and sustaining this over the longer term. Active

learning might arrive at a more acceptable way of

customary tenure has been shown to manifest

recognising tenure and distributing rights.51 While

as family or hamlet ownership of rangeland im-

failing to include a chapter on land matters in the

mediately next to settlements, as village cluster

new National Constitution in 2004, the dialogue

ownership of higher pastures, extending to shared

proved instrumental in preventing constitutional

clan ownership in the case of the very largest pas-

declaration of pastureland as national or govern-

tures in Afghanistan and which may each embrace

ment property.

several thousand square kilometres. In not a single

52

Pilot projects to explore and resolve pasture

instance has family, village or village cluster tenure

tenure issues took time to get off the ground.

been locally-defined as less than ownership. At the

Threat of Taliban incursion derailed a USAID-

same time communities acknowledge that Govern-

funded project to facilitate Hazara negotiations

ment and the law say that Government owns their

with nomads over the vast Nawor Pasture in the

pastures.

foothills of the Hindu Kush, which had been central to Hazara-Pashtun conflict for over 100 years.

53

How far communities may uniformly install and sustain local control over pastures has proved

Bureaucratic difficulties impeded an early start to

less consistent. All too many communities have

a smaller conflict resolution initiative funded by

been confronted with the legacy of entrenched

the World Bank. By then Asian Development Bank

open access over the last century, unable to regain

(ADB) had been persuaded that mass titling of

authority, despite their enormous investment in

farmlands (a mere 12% of the total land areas) was

community-based regulation and management

not the panacea promised, and reshaped its land

regimes. In almost every case this has occurred in

policy assistance into a more exploratory exercise

those pastures which were placed under Govern-

of community based land registration, including

ment control during the last half-century, and

pastures. The United Nations Food and Agriculture

primarily allocated to Kuchi nomads.57 The main

Organization (FAO) was able to mobilise a much

reason is instructive; now related less to Kuchi

larger programme in the central highlands to assist

control than to the way in which powerful offi-

several hundred Hazara communities to clarify and

cials and notables have manipulated the status of

entrench respective collective ownership of pas-

these pastures as public land to their own interest,

tures, within a context of establishing community

knowing full well that restoring local managerial

54

12

whose Land Is It? Commons and Conflict States

control would constrain access by their now many

registration of rights, including to pastures was, as

hundreds of animals.

anticipated, perfectly viable.60

Traditional owners in such areas have found they are unable to rely upon provincial or national

Reforming the Law

government support for their management decisions, so long as the personal interests of one or two

As well as strongly influencing new national

key notables and officials remain unchallenged. Fear

land policy (2007)61 these and a set of other lessons

of the residual power of these notables—former

have been fed into the drafting of a new pasture

warlords still able to rally local armed militia, helps

law. In its current iteration (June 2008) the proposed

intimidate more benign officialdom. Unresolved

Rangeland Law (as it is named) makes its purposes

devolution of rights and responsibility among levels

“to recognize and formalize the custodianship,

of government from centre to province to district

management and use rights of communities and

provide an easy excuse for inaction. Affected

other users, to establish a legal framework for

Hazara communities begin to ruefully confess that it

bringing all rangelands under community custodi-

may be easier to treaty with nomads than overcome

anship” and “to define the regulatory, advisory and

forces of malaise and misgovernance.

mediating role of the Government of Afghanistan in

58

relation to pastures” (Article 1).

Facilitating Negotiation between Contesting Claimants

This represents a dramatic departure from the paradigms of 1970 or as proposed in 2003. The draft also provides for pastures to be classified as

Some progress precisely on this point has

either private, community or public properties. The

been made. From the outset, the FAO initiative was

last is to be a residual category, and pastures are

structured to include negotiation with Kuchi who

to be acknowledged as public property only where

could claim longstanding access to particular pas-

customary possession cannot be satisfactorily iden-

tures in the Hindu Kush, in areas where pastures

tified and sustained (Article 17). Additionally, the

were resilient enough for multiple use. This was

ownership of public pastures is to be on a district

put into effect in 2008, in response to the arrival

basis, not national.

59

of large groups of Kuchi nomads into the 3,500

As with private and community pastures, pub-

sq km Band-e-Petab Pasture in northern Bamyan

lic pastures are to be managed by local custodians,

Province. Successful negotiation proceeded, only

identified as either owners (private and commu-

possible due to the willingness of those Kuchi clans

nity pastures) or as those adjacent communities

to accept that Band-e-Petab belongs to the local

which hold the strongest socio-spatial and histori-

Hazara clans and to pay grazing fees accordingly.

cal rights to the pasture (Article 3). Where nomads

That they were willing to do so is more testimony to

are able to demonstrate a long history of seasonal

their desperation in the search for grazing pasture,

access to public land pastures, the law requires

and the fact these Kuchi had always implicitly

their interests be upheld as far as possible, and

acknowledged Hazara ownership of this pasture.

secured strictly through local agreement. Only

Additionally, the pasture is large enough to sustain

where local, and then district and provincial media-

their entry, and the pasture at high enough altitude

tion fails, may Kuchi submit claims to a President-

to limit access to three brief summer months at

appointed commission formed to determine the

most. Their agreement would contrast starkly with

case (Article 22).

increasingly violent relations of Hazara with Kuchi

While this suggests a positive outcome after

arriving at the Hindu Kush from the south and

several years of post-conflict debate on the matter,

east, as outlined shortly. Meanwhile the one-year

such success remains unstable and vulnerable to re-

ADB project demonstrated that community based

trenchment. Among local populations the retention

13

of any of their traditional pastureland as public

open to all. Nor was their anything in the past ac-

pasture is alarming, not least because some of their

tions of state which had lowered the temperature

most valuable pastures are precisely those which

between favoured Kuchi recipients of this declared

have a 20 century history of treatment as de facto

Government resource; this too had reached new

government property and/or Kuchi property.

heights during the 1970s, along with the final verve

th

Meanwhile, Kuchi advocacy of a return to business as usual in tenurial claims is increasingly strident, empowered by associated Talibaniza-

of Pashtunisation under the Republican President Daoud.63 There was another thread to such arguments,

tion. Some officials also find it difficult to envision

maintaining that as collective assets—which

a future in which they do not themselves have

communities do not customarily trade, pastoral

complete ownership and control of the pastures,

commons are generically un-owned, un-ownable

reflecting fear of loss of rent-seeking opportunities.

and do not amount to real property. This is hardly

The terminology of ownership was weakened quite

an orthodoxy unique to Afghanistan and was much

early on in the drafting of the new Rangeland Law,

promoted there by the assisting international

laying a path for the government to potentially

community during the 1960s.64 There also seems to

recapture central control and management of these

be touching faith in State trusteeship of resources,

pastures.

even after a century of contrary experience. Technically, resistance to acknowledgement of pastures

‘Ownership is Dangerous’

as communal property directly underestimates the damage done to pasture over the last half century

In such positions the government gained

by studiously ignoring communal management

support from the position of the now-closed ADB

structures. Moreover, such resistance neglects

project. This curiously advised in 2006 and 2007

the advantage that recognition of local tenure

that pastures must be again legally entrenched as

gives to mobilising and sustaining local resource

government property, communities awarded rights

conservation. Such positions also underestimate

to control and access a pasture but bound to sign

the determination of local communities to see their

agreements that government may take that land

tenure recognized and their associated resistance

“for agricultural farms, livestock development and

to a return to the way things were prior to the

industrial parks, roads and other infrastructure

civil war. For the Hazara in particular, restoration

with their consent.”62 This was in line with the

of land rights has become inseparable from their

above-mentioned investment-friendly legisla-

empowerment and liberation as one of the few

tion. Aside from this, project staff suggested that

positive consequences of the civil war.65 Finally, on

“recognising the pastures as community-owned is

a more practical level, as FAO responded to ADB

dangerous.”

positions, reluctance to recognize customary rights

This stance reverts to the convention that the

as amounting to ownership removes the oppor-

State is the only safe guardian of degradable re-

tunity to use the distinction between ownership

sources, and especially those which are contested.

and access rights as the mechanism through which

Both positions defy local history and present-day

the bitter settled people-nomad conflict could be

reality. The post-conflict Administration possesses

practically resolved.66

even less means or staff to regulate the hundreds

Needless to say, the more conventional posi-

of pastures around the country, and on the contrary

tions continue to resonate with the inclinations of

has a history of being responsible for the degrada-

more conservative officials in the post-conflict Ad-

tion. The State’s definitive capture of the pastures

ministration, many holding the same positions they

from 1970s had itself been a further incentive to

held before the civil war. The Ministry of Agriculture

degradation, finally entrenching these resources as

has for example recently seen its Forest Law draft

14

whose Land Is It? Commons and Conflict States

returned by the Ministry of Justice as too radical;

June and again in July 2008 reiterated their tradi-

a bill which far from proposing to acknowledge

tional ownership of the pastures of Hazarajat and

customary ownership of the tiny forest resource,

requested that government and the international

sought only to enable those communities to man-

community disarm the Kuchi.73 Fears that Kuchi

age these resources. Rising official interest in hav-

are being armed by the Taliban have also been

ing expansive pasture lands to lease to investors is

expressed, along with accusations that embattled

also strengthening reluctance to surrender rights

Hazara are in turn looking to Iran for support.74 The

to communities. As of October 2008, the Rangeland

UN has been actively trying to mediate between

law remains in draft.

Kuchi and Hazara leaders since the events of June 2007 but broadly has failed. A main reason may be the tendency of conventional conflict-resolution

New Conflict Threatens

procedures to concentrate upon creating goodwill In the interim as formal decision on pasture

rather than advancing practical strategies for

rights is delayed, conflict continues to grow more

resolve such as the grounded FAO initiative early

threatening with each passing year between mainly

on found logical and necessary. By being unsuc-

Pashtun nomads and local populations. Fighting

cessful, these high profile efforts imply, incorrectly,

between Kuchi and Hazara broke out in spring

that the matter is irresolvable, heightening anxiet-

2006 and more seriously in 2007 as armed nomads

ies further and entrenching positions along ‘all or

gathered with their flocks at a main entry point

nothing’ lines.

into the mountains, demanding passage. As was the

In practice it has only been with the onset of

case in the 1990s, many Kuchi have allegiances to

the bitter winter season in late September 2008

the Taliban, and in June 2007 they took the opportu-

and the return of encamped Kuchi to their winter

nity to raise the Taliban flag on the periphery of the

pasture areas that tension has lessened. In the past,

Hindu Kush. In the resulting fracas, thirteen Hazara

Afghans have relied on winter to proscribe such

were killed, tens wounded, hundreds of Hazara

conflicts. The expansion of Taliban control north-

homes burnt and thousands forced to flee. Spring

wards towards the Hindu Kush suggests however

2008 opened badly with a declaration by a Kuchi

that the renewal of the Kuchi – Hazara land conflict

Member of Parliament that only Pashtun are true

may not wait for the spring this time.

67

Afghans – and that they own all the land. Follow68

ing a walk-out by offended non-Pashtun, Parliament was closed for over a week. Hazara in particular took to the streets, demanding that Government

Conclusions Stepping back, the question of “who owns

and its supporting US-led international forces pro-

the pastures?” is being battled over along several

tect their lands from Kuchi armed invasion. Great

tracks:

bitterness was also expressed that Kuchi remain

 First, between government and people as to

the only group still exempt from disarmament

the extent of customary right to be recognised;

requirements.

 Second, within government and the interna-

69

By June 2008 battles were taking place in

tional community, as conservatives and modernists

several districts abutting the mountains, as arriv-

debate the wisdom and implications of retaining

ing armed Kuchi again burned Hazara houses.70

the pre-war idea of all pasture as real or de facto

Hundreds of families again fled. Political lead-

government property, and subsidiary to this, in

ers including the Vice-President voiced concern

whose hands it is most practically regulated to-

that civil war could begin in areas which have so

wards rehabilitation and sustainable use; and

far not been directly involved in the fight against

 Third, and increasingly violently, settled and

Taliban insurgents. Hazara leaders meeting in

nomadic people are fighting for tenure.

71

72

15

Underlying this is the time-old inter-ethnic

Afghanistan not be sustained, the question of who

and especially Pashtun/non-Pashtun divide which

owns the high pastures may be expected to be

afflicts the country as a whole, and which shows

overtaken by more severe battles over territory, but

signs of hardening with the gathering force of

with the prize still firmly fixed on this valuable and

Talibanization. Should the unsteady peace in

contested resource.

2.2  The Wooded Savannas of Sudan

In many respects the tenure situation in

pastures?—is helping to reactivate conflict. The

far-away Sudan is not so different from that in

International Crisis Group has recently expressed

Afghanistan. The rural majority struggle to have

concern that failure to resolve deep land griev-

their communal assets recognized as rightfully

ances in central Sudan may lead to another Darfur.

theirs, following a substantial history of these

Coincidentally (or not) similar conclusions are

being treated as the property of the State. This too

emerging in Afghanistan.76 A more pessimistic

occurred in two phases, in modern laws declaring

conclusion might be that the entire state of Sudan

this to be so, underlain by an older history of colo-

is at great risk of collapse, and for reasons which

nial conquest and resource capture. The conflict

rest to significant degree upon contested rights to

between State and people’s property interests

resources. State policy and law, abuse of customary

is similarly delivered in contestation between

land rights, engineered ethnicism, and greed for

nomads and settled communities, and again ethni-

resources all play a role.

cally aligned, in this case between the largely Arab

The situation of communal tenure in the two

north Sudan and the African south. The role of

countries differs in other respects. This is not least

well-intentioned international aid agencies is also

in the difference governance environment within

present, variously obstructing or aiding positions,

which the land rights issue is treated. On the whole,

and never neutral.

will to resolve the issue and be fair to customary

There are other similarities in that the experi-

rights is the stronger trend in Afghanistan.77 It is

ence has seen political consciousness of injustices

less and less sure that this may be said for northern

and resistance to return to pre-war conditions

Sudan, the declamatory intentions that may be

materialize and play an important part in shaping

read into the Peace Agreement notwithstanding.

conflict today, increasingly as an issue between

Additionally, the issue of land rights and collec-

government and people. In these circumstances,

tively-owned lands was a conscious cause of war in

potential resolution is not found in reconfirma-

Sudan, although one largely inseparable at the time

tion of declamatory law as it existed prior to the

from ethno-religious differences. As a consequence

war. Successful resolution is more likely to emerge

the matter was brought firmly to the peace-making

through localized and incremental learning by do-

table by the most aggrieved party, the south, and

ing—an approach purposefully pursued precisely

which enjoyed identity with African as compared to

to avoid re-entrenchment of such “bad law” and to

mainly Arab and northern populations. The points

build a stronger and more inclusive platform for ar-

of agreement that were (and were not) reached

riving at more workable and acceptable new law.75

have been pivots in the handling of the issue since.

More negatively, in both countries failure to resolve the single question—who owns the

There is thus either irony or instruction in the fact that as matters stand in late 2008, communal

16

whose Land Is It? Commons and Conflict States

land owners are more or less in comparable situa-

south, these states were excluded from Southern

tions in both countries. This suggests that either

Sudan, a cause of major grievance today. Nuba in

the contents of the Sudan Comprehensive Peace

particular fear that they will once again be subject

Agreement were insufficient to make a difference,

to Arab-dominated colonisation and land theft

or that it is post-conflict actions, whether prefaced

as described below, while their fellow Africans in

by agreements or not, which determine the way

the south enjoy protection of customary property

forward. Alternatively, it might be concluded that

rights.

the issues at stake are simply too loaded to find swift resolve, at least in what in both states is

Laying Down the Gauntlet

still the post-conflict short-term of three to seven years.

“Land belongs to the people.” This was a maxim of the Southern People’s Liberation Army

Focusing on the Central Contested Areas of Sudan A short account of the communal lands issue

(SPLA) and the Southern People’s Liberation Movement (SPLM) led by John Garang and now Salva Kiir, who serves as both President of Southern Sudan and a Vice President of Sudan overall in what may

in especially the most contested central zone of

only be described as an extremely uneasy form of

the country follows. Modern Sudan exists today

co-governance. The problem was, SPLM leaders

as a federation of 25 states, the 10 most southern

admitted in March 2004, it was not clear how to

forming the semi-autonomous region of Southern

deliver land rights in practice.78

Sudan. Southern Sudan embraces around a third

Within the North-South Peace Talks (from

of the total land area and an estimated 40% of the

which Darfur was excluded) the matter mainly

total population. The peace agreement ending the

concerned the inhabitants of the central zone.

24 year civil war between the Arab north and largely

These were African tribes and most notably the

African south was negotiated after a ceasefire in

Nuba of the semi-mountainous Nuba Mountains

2002 and finally signed in January 2005. This was the

(now the greater part of Southern Kordofan

second civil war between these regions since Sudan

State) and the Funj of Blue Nile State to the east.

gained independence from shared British Egyptian

Both had borne the brunt of fighting during the

control in 1956. The peace was signed between the

long North-South War (1984-2002). They were also

national Government of Sudan, led by President

peoples who had begun from the 1960s to lose

Omar Bashir, leader of the Islamic National Con-

millions of hectares of their communal plains to

gress Party (NCP) and the Southern People’s Libera-

state-supported schemes and allocations.79 While

tion Army (SPLA), led by John Garang. During 2002-04

substantial numbers of Arab nomads (Baggara)

the SPLA formed a political party, the Southern

had been living in or seasonally visiting the central

People’s Liberation Movement (SPLM). By accord,

region of Sudan for a century or more, greater

this governs Southern Sudan until the holding of

numbers of northern Arab nomads were also

a national election in 2009 (more likely, 2010). By

encouraged to settle there in this period, or were

the terms of the Peace Agreement, Southern Sudan

doing so voluntarily as a means of dealing with

has the opportunity to secede as an independent

the establishment of schemes in their own home

nation following a yes/no referendum to be held a

areas further north.80 It had in fact been these mul-

year after the national election.

tiple encroachments which had driven Africans

Although the mainly African populations of

in the Nuba Mountains and Southern Blue Nile

central zones and specifically the Nuba region of

to join the southern-dominated SPLA against the

Southern Kordofan State and the Funj of southern

national government, or more specifically, its rul-

Blue Nile State fought on the side of the African

ing Arab Islamic elite, the National Congress Party

17

(NCP). The National Congress Party still dominates

Sudan which lasted from 1899 until independence

the political landscape today.

in 1956. The founding law on this matter was in

As open conflict came to an end with the sign-

1905, ruling that all “waste, forest and unoccupied

ing of a first ceasefire, the Southern Kordofan and

land” was Government property.84 Ironically, one

Blue Nile State were divided, partly controlled by

of the objectives at the time was to protect African

the northern military and partly by forces under

lands from further invasions and dominance by

the SPLA. Both northern and southern forces

Northern Arabs. Administrative orders in following

were permitted to establish their own interim

decades left villages with a maximum radius of 3

administrations. Abyei, an area traditionally in the

km as the area lawfully occupied. War and peace

southernmost corner of Southern Kordofan State,

notwithstanding, these and related provisions

was considered a distinct, third zone. In March

remain in force today.85

2004, with a formal peace agreement in sight and hints that restitution would be possible, the SPLA

Losing Rights

governors of these three regions (known as the Three Contested Areas) were anxious to plan just

Four themes are discernible in the ensuing

how restitution of lost lands should take place and

handling of mainly African land rights. First, as

how these could formerly secured as the property

above, was the early co-option by the State of those

of Abyei, Nuba and Funj tribes.

resources of most value to rural communities, their

Before addressing this, it is as worthwhile to

expansive wooded savannas, by legal denial that

be clear on how these lands had been lost in the

these were owned or ownable.86 This consolidated

first instance. As in Afghanistan, this was from the

with each decade and became decreasingly benign.

outset a matter of state law.

It was also despite clear knowledge that in the words of a prominent British Administrator in the

Making Dispossession Legal In the 1970s the principal legislation which al-

1930s that “the native is inclined to consider that all land is either within his or some other village’s boundaries.”87

lowed Khartoum to help itself to the lands of local populations was the Unregistered Land Act, 1970.81

Losing Equity

This was introduced mainly to satisfy concerns of the World Bank that evictions of local communities

Second has been the continuing story of north-

on vast mechanised agricultural schemes under-

erner capture of lands of the more fertile central

written by its loans be made legal.82

and near southern zones of Sudan, and this in turn

This law was in due course replaced by a more

often engineered or delivered by Arab nomadic

subtle Civil Transactions Act, 1984. This Act assured

populations. As suggested above this also did not

farm and house owners that their occupancy was

begin in the 20th century; on the contrary it had long

protected, but retained intact the provision that

origins in the enslavement of Africans by Arabs in

uncultivated and unregistered land belonged to

the region. As Johnson records (2003), the British

Government. As unregistered land embraced more

found on their arrival in 1899 that it was normal for

than 90% of Sudan’s total land area, this confirmed

northerners with access to the African south to pay

the State as the majority landholder. Eviction by

tribute to their own leaders in the form of espe-

Government was made lawful, and even appeal to

cially Nuba and Dinka slaves, not just gold or ivory

courts against eviction, unlawful.

from their lands. By the 1970s, and after a century

83

This position was not entirely new. The provi-

in which Arab power was firmly reshaped into State

sions built upon legislation dating back to the be-

authority, the pattern of resource grabbing and its

ginning of the Anglo-Egyptian Condominium rule of

underbelly of racial oppression were hardly altered.

18

whose Land Is It? Commons and Conflict States

Losing Power

designed for local populations under the Numeiri mobilisation of agricultural cooperatives. By 1968

Third was Indirect Rule, originating in The Sudan precisely to bring the vast country under some degree of administration. In delivery, the foundations of collective land rights - communal jurisdiction - was ignored and reconstructed. In the important Nuba Mountains/South Kordofan for example, only four of some 60 Nuba tribes were recognized as living within Native Areas of their own, while the remainder were merged under Arab-controlled Areas and to whose Arab leaders, allegiance was necessary even to secure African residence.88 In the process, virtually all of the valuable clay plains of the Nuba were handed over to the three branches of the nomadic Hawazma from the north.89 These zones were essential to Nuba livelihood, providing space for large seasonal farms which the steep mountain areas did not provide. The plains also provided pasture, woodlands and Gum Arabic, an ancient trading commodity. Northern descendant Arab nomads had by then wellestablished passage and seasonal grazing rights in these areas.90 With a long history of slaving raids

they were catering to northern private and foreign interests, in the hands of prominent officials, traders, agri-business, Islamic banks and Middle Eastern investors, and increasingly, selected supporters of Islamic fundamentalism.93 Local land losses in the Nuba Mountains/South Kordofan area alone amounted to 4.5 million acres.94 Today these local land losses may be tripled, given the assurance of the Civil Transactions Act that those who drilled wells or opened farms in so-called waste, unoccupied and abandoned lands are considered lawful users, competing with local customary owners. During the war many settled populations fled these areas and Khartoum yet more actively encouraged northerners to move into this part of the country, to increase northern Arab and Islamic presence (the so-called Arab Civilization Project). This continues today, the objective being to consolidate the vulnerable (and oil and mineral rich) Southern Kordofan State as a predominantly Arab, Islamic and National Congress Party supporting State.95

behind them, the Hawazma had for many decades routinely sent the Nuba scurrying to the mountains ahead of their summer arrival. The entrenchment by the British of this status quo as the legal reality was a source of great resentment to the Nuba.91 Nonetheless, even Arab Native Authorities provided a degree of protection to non-Arab local populations, and the demise of these institutions in 1971 opened the way for unbridled central government interference in local land rights throughout the Sudan. This was not halted by the restitution of (provincial) local government in the 1980s, for it was through these agencies that much of the manipulation of land rights by northern interests would thereafter be eased.92

Failing to Recover Rights and Resources Ownership of land and underground resources were extensively debated during the peace-making period, supervised by Inter-Governmental Authority on Development (IGAD) in Kenya, but little could be agreed. In the eventual Wealth Sharing Protocol of January 2004 the subject of ownership was set aside for later agreement by an unspecified process (Article 2.1). This never occurred. It was however agreed that “a process be instituted to progressively develop and amend the relevant laws to incorporate customary laws, practices, local heritage and international trends and practices” (Article 2.5).

Losing Land Fourth and most recent are the large scale

As ownership was firmly off the agenda, and given the well-known reluctance of Khartoum to change existing law, it is unlikely that the North

evictions of local owners to make way for mecha-

considered that customary laws or practices could

nised farming schemes. Initially these were

ever amount to land ownership. Events since have

19

shown this to be so. At the time, the added provi-

Constitutions (2007) that went beyond the ambiva-

sion that “rights owned in land by the National Gov-

lent provisions agreed originally in the Wealth Shar-

ernment will be exercised through the appropriate

ing Protocol of January 2004. A new chapter of Land

or designated level of Government” (Article 2.4) was

proposed by the SPLM was rejected. This accorded

warning enough. The odd provision for land mat-

customary interests status as property, irrespective

ters to be subject of concurrent jurisdiction among

of whether or not those rights were registered, or

levels of government confirmed warning that there

held as individual, family or community estates,

would be little space for local governments to acti-

provisions already well embedded in the reformed

vate change (Article 2.3).

land laws of a rising number of other African states

Land Commissions were also to be instituted

such as Uganda and Tanzania.98 In addition, the

at national and Southern Sudan levels with vaguely

chapter laid down the foundation for these to be

specified duties and powers relating to disputes

administered by community land boards.99

between parties where they were both willing, at once limiting the kind of cases that would be heard (Articles 2.6 & 2.7). The Commissions were to make recommendations regarding land reform policies (Article 2.6.6). Hope was raised by the mention that

Curtailing the Opportunity for Restitution The chance to even have State Constitutions

this could include recommendations regarding

was a special concession to the Nuba and Funj in

“recognition of customary land rights and/or law”

the failure of the long promise that the bound-

(Art. 2.6.6.2). This sub-provision would not appear

ary of Southern Sudan would be drawn to include

again, in either the final Peace Agreement or the

their areas. The intention was that these bodies

Interim National Constitution.

would address the bitter claims of wrongful loss of lands. The Commissions were accordingly uniquely

Remaining in the North and Battling

empowered by the peace agreement to “review existing land leases and contracts and examine

for Rights

the criteria for the present land allocations and

Concerns around customary rights fell off

recommend to the State authority the introduction

the agenda following the agreement in early 2004.

of such necessary changes, including restitution of

Despite significant behind-the-scenes lobbying

land rights or compensation” (Southern Kordofan/

by US agencies to see a more elaborate account-

Nuba Mountains and Blue Nile States Protocol, May

ing of land rights and administration, this was

2004, Article 9.6).

never achieved, either in the final drafting of the

Neither Land Commission has in fact been

Implementation Modalities (2004), the Compre-

established. This has been despite expert drafting

hensive Peace Agreement (January 2005), or more

of enabling legislation provided under the aegis of

importantly, in the drafting of the Interim National

a US-funded customary land security project and

Constitution (2005). As negotiations drew to an

concerted but often frustrated efforts to bring non-

end SPLA was preoccupied with bringing the cen-

SPLM members of the State legislatures on board.100

tral zone three contested areas into South Sudan.

Few Nuba and Funj state officials are optimistic

By the time this had failed for the two main areas of

that even if eventually formed, that the State Com-

Southern Kordofan and southern Blue Nile (August,

missions will have autonomy from the NCP-dom-

2004) the North was confident it need not revisit

inated National Land Commission in Khartoum.

the issues.

This too has not yet been formed, more than three

96

97

This has since been maintained, Khartoum

years after the signing of the Comprehensive Peace

preventing the two states of South Kordofan and

Agreement. It may be fairly safely concluded that

Blue Nile from introducing articles into their State

the draft laws simply offered too much opportunity

20

whose Land Is It? Commons and Conflict States

for restitution to take place for the NCP leadership

registries for Community Land Areas would be

to find this acceptable.

located.

Promoting Customary Land Security

Slowly Making Way

and Devolved Land Authority

Due largely to resistance by NCP representa-

An innovative attempt to assist the two

tives with the support of Khartoum, none of the

regional states to resolve their tenure conflicts

resulting draft laws reached the legislatures of

from the ground up has also ultimately failed to

Southern Kordofan or Blue Nile, nor are expected

make progress, again largely due to constraining

to do so in the near future. Overall, the project en-

political circumstances. The Customary Land Secu-

dured a rocky road, its genesis in SPLM-supported

rity Project began as US-funded pilot project on a

areas limiting its acceptance by Khartoum and its

shoestring budget in mid to late 2004, eventually

NCP representatives in the two States. This has

instituted as a fully-fledged American aid project in

most dramatically been the case in Southern Kor-

2006.

101

Its primary objective was to help Nuba and

dofan where divided administration of the State by

Funj communities prepare for restitution of their

SPLM and NCP has only very begun to be resolved

lands by agreeing among themselves the boundar-

in mid 2008, and allowing freer movement between

ies of their respective community land areas and

the two zones.104

by establishing community based councils to both

Nonetheless, by February 2008 nearly all

make those claims and to administer their land

the rural communities of Southern Blue Nile had

relations, internally and with outsiders.

reached agreement as to their respective area

102

One step in the multi-stage process agreed

boundaries, established provisional Community

with local leaders was to meet with nomads who

Land Councils to negotiate inter alia on matters

had settled on their lands or who wished to restart

of restitution, should this eventuate. Negotiations

annual migrations into these areas. The objective

with representatives of nomads from further north

was to come to mutual agreement on conditions

had also begun in Southern Blue Nile as early as

and corridors.103 This actually began to take place

2005.

in southern Blue Nile during 2006 but has never been possible in the more divided and conflicted

Giving Up

Southern Kordofan. In parallel, investments were made to secure

The situation was significantly less positive in

expert legal advice to:

South Kordofan State, where Nuba, having deter-

 Help local leaders draft chapters on land for

mined to define their land areas on a tribal rather

the State Constitutions;

than village cluster basis immediately encoun-

 Draft land laws to put the promised Land Com-

tered difficulty in agreeing the boundaries among

mission in place;

themselves. This was partly because these areas

 Enable restitution to proceed swiftly and

embrace sometimes thousands of square kilome-

fairly; and

tres.105 It was mainly because many of these tribal

 Lay out the paradigms for recognizing com-

areas are overlaid by mechanised farming schemes

munity ownership and authority over respective

allocated to outsiders into which local leaders may

community land areas.

not trespass, and/or are occupied by settlements

Legislation was also devised to entrench

of armed nomads. The project also confronted

elected Community Land Councils as the lawful

enormous resistance from the incumbent NCP

land authority over these areas, to be supervised

Governor and his staff from 2007.106 The Ministry of

by County and State Land Offices, and where the

Agriculture has made matters worse by committing

21

to make available for lease no fewer than 20 mil-

tered lands as Government property, by continuing

lion more acres in Southern Kordofan. Experience

to issue leases on land it legally presumes to be

suggests these will again favour outsiders, raising

vacant and un-owned, and not only in the South

local anger considerably. Seemingly unarmed with

Kordofan State.

clear knowledge of history in the area, the International Fund for Agricultural Development (IFAD) is

Looking to the South

reputed to have offered financial support for these schemes, replacing grants from mainly USAID and

In contrast, some progress on these matters is slowly being made in Southern Sudan. Although

The World Bank in the 1960s and 1970s.

necessarily keeping with the terms of the Interim National Constitution, the South Sudan Interim

Going Back to War

Constitution went considerable further in its text.

No fewer than three and up to nine armed

This includes provision that “All lands traditionally

insurgency movements have been launched among

and historically held or used by local communities

mainly the Nuba, preparing to return to war, should

or their members shall be defined, held, managed

their grievances not be addressed.107 These include

and protected by law in Southern Sudan” (Article

the complete failure to see development since

180(4)). Customary seasonal rights are also to be

2005, in spite of the peace agreement pledging to

respected - provided they “do not interfere with the

give Southern Kordofan special support. So far

primary customary ownership interest in the land”

this special support has been restricted to nomad-

(Article 180(5)).

inhabited and NCP supported parts of the province. Grievances also include failure to integrate the

Moving Towards Just Modern Land Law

NCP and SPLM arms of government or to enable residents to even travel easily into each other’s

Progress has also been made on a new

areas. And perhaps most of all, failure to resolve

Southern Sudan land law. This is currently being

the deeply entrenched land conflicts between the

considered by the Council of Ministers ahead of

settled Nuba and nomad pastoralists or to see a

presentation to the legislature before the end of

single claim addressed or resolved for restitution of

2008. but which may slip into 2009. This Provi-

wrongfully (if lawfully) appropriated lands for lease

sional Land Bill, 2008 provides for customary land

to private investors and officials from the north –

rights “including those held in common shall

and instead even pledge to extending these.

108

For

have equal force and effect in law with freehold

its part, unable to operate, the Customary Land Se-

or leasehold rights acquired statutory allocation,

curity Project has closed in Southern Kordofan, and

registration or transaction” (Article 8(5)). Custom-

is scheduled to close in Blue Nile State in December

ary owners are to be assured security of occu-

2008.

pancy, irrespective of whether or not they hold rights individually or in association with others

Back to Business as Usual There is nothing to suggest that real address of

and whether or not these rights are registered (Article 8 (2) & (3)). Public land is made a residual category where “no private ownership includ-

communal land rights issues will occur in northern

ing customary ownership may be established

Sudan, anymore in Kordofan than has been the

by any process” (Article 9 (2) (c)). Public land also

case in Darfur to the west, and where war contin-

excludes collectively owned swamps or secondary

ues, with many of the same issues at stake.109 On

waterways which are traditionally owned by an

the contrary, Khartoum has signalled its continued

identifiable community, and which has agreed to

resistance to change in the legal status of unregis-

abide by rules for its environmentally sound use”

22

whose Land Is It? Commons and Conflict States

(Article 9 (2) (f iii)). A new class of land ownership

belong to the people, this has been replaced with

is provided for, Community Land. This includes

signs proclaiming that land and resources will

land “lawfully held, managed or used by specific

be looked after by Government to the benefit of

communities as community forests, grazing areas

people.111

or shrines” suggesting that this will be applied to those customary resources which are retained as

Pressure to Lease and Lose

collective property (Article 10 (2)). Traditional authorities will continue to al-

Of more practical concern are the substantial

locate customary rights and also be able to lease

articles in the draft law encouraging the lease of

customary land to any non-member of the commu-

lands to investors including foreigners in condi-

nity but only on the basis of consensus in the com-

tions where communities are to be consulted but

munity, and with ministerial approval for alloca-

their approval ambivalently required (Articles 6-63).

tions above 250 acres (Article 14). Land Councils at

Provisions for expropriation are also generous

the village cluster level will be established (Payam

in the definition of public purpose which covers

Land Councils) mandated inter alia to assist leaders

almost any purpose which government (or lead of-

and traditional authorities in managing community

ficials and politicians) might consider it to be (s. 72).

land, and protecting the customary land rights of

In the absence of positive experience in Sudan as

communities (Article 49). Evidence of rights may

to the keeping to conditions or terms of leases, or

include verbal testimony (Article 38). Communities

in the payment of compensation for expropriation,

may register their land either in the name of the

these two mechanisms could well prove to be legal

community, a clan or family in accordance with the

but nonetheless unjust mechanisms for squeezing

customary practices, a community association or a

land out of local communities. Still, the establish-

traditional leader holding the land in trust for the

ment of such procedures must be acknowledged as

community and individual members of the com-

infinitely superior to the continuing denial in north-

munity may register their individually held parcels

ern Sudan that local communities have proprietary

once this has been partitioned off for such purpose

rights to begin with.

by the community, in accordance with customary

The drive to make communally owned lands

practices (Article 57). Finally, citizens are entitled to

more freely available in the market place is most

restitution of land as a result of the civil war from

felt in Juba, the capital city of Southern Sudan.

May 16, 1983 (Article 77).110

Having grown five-fold in the short three years following the signing of the Peace Agreement, Juba

Unclarity in the Founding Basics of Property These are all important and positive policies.

caters to thousands of returnees and also rural people looking for jobs and education.112 The new Government multiplies its own labour force annually, and along with the military, humanitarian,

Should they enter law, SPLA/SPLM claims that “land

peace-keeping, reconstruction aid communities

belongs to the people” could begin to see delivery

and the burgeoning business sector, need land to

in this part of Sudan. They are nonetheless offset

live on, build upon and to work from. For this they

by a lack of clarity as to who exactly owns the land,

look to the local Bari community, the customary

people or government. Section 7 of the law defines

owners of the land immediately around the capital.

land as owned by the people of Southern Sudan but

Disputes and prices have risen everywhere, the

held by the Government as Custodian. This modifi-

former sometimes with violence.

cation is reflected in the changing content of bill-

On occasion the SPLA and SPLM help them-

boards around the Southern capital, Juba; whereas

selves to land, as do ministries for their buildings

in 2005 these proclaimed that land and resources

and projects. At a more formal level, the immedi-

23

ate State Government (Central Equatoria) has

the sacrifices made over 24 years for the good of

been locked in dispute for some time with the Bari

the people. On the other is a local tribal community

leadership as to how land may be fairly released

which is also unlikely to surrender the commit-

for urban development. The Southern Sudan Land

ment to land rights fought for over 24 years. The

Commission has been unable to assist. Frustration

makings of new conflict over this matter are being

grows. On one side is a militarily powerful and

set in place – and which the prompt submission of

rather bullish new government which considers it

the land law to parliament (albeit provisional) is

a due right to be able to take land as needed, given

designed to prevent.

2.3  The Tropical Forests of Liberia

Finally, to the tenure situation of Liberia’s

distinct from the farming system or farmed areas,

forest resources. The role which forest has

although the distinction is increasingly made as

played in the recent spate of civil war on the West

farming becomes more settled.

113

African coast is well-known internationally as the

Combined with an abundance of waterways

‘blood timber’ issue. This refers to the allega-

which serve as boundaries, Liberia has a long his-

tion that the President of Liberia, Charles Taylor

tory as a mosaic of discrete community territories

(1989-90, 1997-2003) was using revenue from timber

without no-man’s land in-between. Introduced

and diamonds to fund rebels in neighbouring

ideas of wasteland or un-owned land which may

Sierra Leone. This resulted in UN sanction against

be rendered unto the state have therefore sat

international purchase of Liberian timber in 2003

more awkwardly in Liberia than in parts of Africa

and presently, his trial in The Hague, for this and

where community domains have been very large

related crimes.

and boundaries themselves existing as often wide reaches of forest or grassland. And yet, typically,

“The Forest is Our Farm”

governing powers in Liberia have attempted to introduce such dispossessory notions that there is

However this is not the conflict issue which

un-owned land.

preoccupies rural Liberians today, although the looting of their forest since the 1970s by government hand-in-hand with concessionaires has been integral to the current popular determination to bring forests under the control of their traditional

Colonial Resource Capture with a Difference The course of this imposition has been

owners, ordinary rural communities. In every sense

somewhat unusual. Liberia’s colonisers arriving on

of the word, rural Liberians are historically a forest

the west coast of Africa were private colonization

people, their culture, economy and spatial organi-

societies bringing freed slaves from America. On

sation profoundly rooted in the forest. Livelihood

landing in 1821 they recognized that the coast was

in many parts of the country is founded upon a

already occupied and owned by Aborigines (as they

form of shifting cultivation which depends upon

referred to them). They proceeded to negotiate

the fast-growing Guinea Forest to restore fertility

purchase of the sites they wanted for their settle-

to fallow fields. Forested areas, in various stages

ments (“colonies”). A (very) little money and goods

of re-growth are therefore integral to rather than

changed hands and contracts were drawn up.114

24

whose Land Is It? Commons and Conflict States

A salient event occurred at this point; ordinary

the north (Sierra Leone) and to the French in the

natives rebelled against those first chiefs who sold

south (Côte d’Ivoire). This drove the new Libe-

their shared property to the colonists without their

rian state to extend its sovereignty inland, into

permission. This set a precedent of articulated

the hinterland. By 1900 the possibility of buying

collective ownership which remains vibrant today.

these much larger and magnificently forested

It also would serve to pre-empt the kind of chiefly

areas from native communities was much less;

capture of land which would afflict some other

purchase was simply too costly. In any event,

West African states over the coming century, most

the ruling Americo-Liberians no longer thought

notably Ghana.115

such purchase was necessary; the decisions made in Berlin in 1885 and the models subsequently

Buying the Littoral

established by the British and French along the West Africa coast has established a quite different

Eventually the whole coastline and areas 40

precedent of land capture.

miles inland was purchased by at least eight different colonization societies. In due course these societies combined to form the first independent state in Africa in 1847, and their land purchases would cumulatively represent government land

Recognising the Hinterland is Already Owned Nonetheless, Monrovia did not simply declare

available for allocation to settlers. This would be a

this expanded hinterland domain of political sover-

state in which the colonizing Americans would rule

eignty the property of the state. On the contrary, it

the indigenous population in stridently colonial

agreed with the chiefs in 1923 that their ownership

manner, leading to eventual rebellion in 1980.

was recognized and protected, and “whether or not

The previous owners of the littoral, local

they have procured deeds from Government for

tribes, were guaranteed security of occupancy.

such land delimitating by metes and bounds their

Only around the turn of the century would they

rights and interest” (Hinterland Laws and Adminis-

gain the right to purchase parcels of the Republic’s

trative Regulations, 1923-1949; Article 66). More-

land in the same manner as new settlers or new

over, if they so wished, these communities could

generations of Americo-Liberians. It was also at this

acquire title deeds for their domains, in the process

time that the Liberian Government began to issue

converting their rights into fee simple communal

land concessions to foreign interests, the most

holdings.

famous being the issue of one million acres to a

No less than thirteen chiefdoms were to take

small American company called Firestone for the

up this opportunity, bringing 2.3 million acres

purpose of rubber production (1906, 1929) and from

(nearly 1 million ha) under registered community

which the giant Firestone would grow. By 1970 over

ownership between 1924 and 1960. Two of these

three-quarters of the country would be subject to

Aborigines Land Grants each covered over half a

mainly foreign leases or concessions, including the

million acres of forest. Notably, in no case was title

vast and precious timber and mineral rich forest

issued to chiefs, despite the intention of Monrovia

resource.

to do so. Instead chiefs and communities ensured that it was clearly specified that the land was

Colonizing the Hinterland

owned by all members of the community and their heirs and assigns.

However the area of independent Liberia in

However most chiefdoms did not secure

1847 was not Liberia as we know it today. As the

such deeds. They had neither the means to pay

European scramble for Africa got underway, the

the survey costs involved nor the organization or

Republic lost significant areas to the British in

incentive to do so. For the law was clear, assuring

25

communities that even without such registration,

its right to the use of the land (Title 1, Chapter 11,

their customary ownership was protected.

Article 270).

Turning Owners into Tenants

Reverting to Colonial Form

And then enters the rub, the time in which

Thus, as British, French, German, Belgian and

modern Liberia took on the resource-grabbing

Portuguese had so done before them, unregis-

behaviour of its neighbours to the north and south

tered land became for all intents and purposes,

and the guarantee of recognition of customary

the property of the state, and its customary

ownership fell away. In hindsight, the trigger is

owners became lawful users. Becoming active in

not difficult to identify; by the 1950s it had be-

Liberia from the 1960s, the donor community did

come less palatable to Monrovia that Aborigines

not question this arrangement. On the contrary,

continue to own and control what were clearly

as in Afghanistan, a new cadastral land registra-

extremely valuable resources and concessions for

tion was advised, and eventually embedded in

which foreign companies would pay handsomely.

a Land Registration Act of 1974. Typically, this

Nor was capture difficult to achieve, given that

was focused upon the advocated individualiza-

the political, social and economic dominance of

tion of lands and their registration as freehold

Americo-Liberians over the indigenous community

estates. In the process, whilst not denying the

was still intact.

existence or importance of customary tenure, its

There was also a strong political-adminis-

implication as real property was reduced as mere

trative justification for reconstructing Aborigine

encumbrance upon public lands owned by Govern-

presumptions that they owned their lands; gover-

ment.117 This quietly shifted the legal grounds of

nance in the littoral and hinterland needed to be

customary ownership, further reducing this to

brought under a single uniform regime. Natives in

permissive occupancy.

the littoral had long ago lost or sold their founding tenure and steadily replaced these with acquisition of rights on an individual or sometimes collective basis from Government, and the hinterland populations should do the same. By then the idea that

Making Use of Opportunities and Loopholes There was however still opportunity for tradi-

property exists only as individual and registered

tional owners to recover or establish formal tenure.

entitlements was also the orthodoxy, Americo-Libe-

They could buy back their land from Government,

rians having a century-long history of documented

and initially at relatively low cost. Moreover, no

purchases and transactions in well-kept registers in

change was made in the Public Lands law which

every coastal county.

required local chiefs to approve any application for

116

In law, the shifting ground in the Monrovia-

registered entitlement and which could theoreti-

Hinterland relationship was achieved by slight

cally be used to limit capture of local lands. At least

alteration in the wording of the Hinterland Law in

19 chiefdoms set about buying back their land

the process of its redrafting in 1956 to enter the

between 1956 and 1986, securing their community

Liberian Civil Code as Title 1, the Aborigines Law.

land areas as collectively-owned private property

By these changes rural Liberians were no longer

under Deeds of Public Land Sales. Together with

guaranteed “right and title” to their land but the

the lands still under Aborigines Land Grants, these

right of use of these “public lands.” In addition, an

entitlements amount to at least 2.5 million hectares

earlier provision that omission by a tribe to have its

or around one quarter of Liberia’s total area. Most

territory delimited should not affect its right and

of this land area is still forested and represents 44%

title became the provision that this would affect

of the total forest estate today.

26

whose Land Is It? Commons and Conflict States

Although they were a minority in Liberia, these 30 or so communities were probably among the

by communities over the future of their forested properties.

very few legally-recognized customary land owners on the continent around this time (1960s-1980s) (Ghanaian Ashanti chiefs were another exception).118 Some 500 million other Africans around the continent had access, occupancy and use rights in

Double-Locking Resources against Customary Claim As if aware of dubious claims of State, as late

abundance – but not ownership. Or, a few of their

as 2000 Charles Taylor would strengthen its hand

number (and mainly in Kenya) had extinguished

by entering into law the provision that while com-

their customary rights (and those of their families

munities may own the land on which trees grow,

and their communities) and replaced these with

the trees themselves belong to the State (National

imported freehold or leasehold entitlements, held

Forestry Act, 2000; s.10.4). This built upon a thriving

individually. Through such promoted individualisa-

timber industry which saw Government hand over

tion, titling and registration programmes on the

the entire forest to lucrative logging concession,

continent at the time, collectively-owned assets

including those under entitlement. By then rural

were either subdivided among those with the

communities were well caught in a conundrum

means to use them (i.e. the better off members of

familiar to Sub Saharan Africans at the time – “the

the community) or in the case of forests, vested

land is ours but Government owns it.”121

in the state or its local authority agencies.119 From these hands, much of the forest estate around the

Bringing Rights Back Into the Picture

continent would see steady encroachment, degradation or reallocation to mainly privileged tribes

In 2008 a rather different scenario has

or individuals, a source of rising bitterness today,

emerged. Following the ending of the war in 2003

as the violent inter-tribal land evictions in Kenya in

and the eventual election of a new President and

early 2008 would illustrate.

legislature (2005-06), the status of customary land interests and especially the collective community

Mistreating Even Registered Owners If rural communities in Liberia needed remind-

ownership of forestland and forests have come under vibrant public debate. Following sanctions, a thorough review of forest concessions was

ing that changes were afoot, this might have

undertaken (2004-05). This showed the high degree

come during the early 1960s with the declaration

of corruption, abuse of local communities and their

of over a million hectares as National Forests,

rights and extensive ravaging of the forest resource

declared thereafter the property of the State.

that had occurred in concession areas. Under

These absorbed a significant share of these private

considerable popular pressure, every one of the 71

properties and particularly those under Aborigines

current concessions was cancelled by the incoming

Grants. There is no evidence that this transfer of

new President Sirleaf Johnson in early 2006.

ownership met even the legal conditions of the

As part of the pledged reform process, a new

time regarding consultation or compensation,

National Forest Reform Law was enacted later that

placing this dispossession on constitutionally

year (2006). Although declamatory towards respect-

shaky ground.120 Concessions to these areas were

ing Liberian land rights, provisions went no further

promptly issued, with no reference to local oc-

than assuring customary land owners one third of

cupants/owners. Reconstruction of the forestry

the rent which government would charge future

department as a President-appointed semi-auton-

concessionaires. The failure of the legislation to

omous commercial agency (Forest Development

sufficiently overturn standing paradigms left the

Authority, FDA) would seal total loss of control

legislature itself uncomfortable. At the last minute

27

the Senate agreed to enact the law only with

Influential parties in the logging sector are

proviso that a Community Rights Law with Regard

more supportive of community rights than might

to Forests be drafted. A main concern was that the

be traditionally expected.122 After the events of

new law still did not require the Forest Develop-

the last 15 years the industry is all too aware that

ment Authority to consult with communities prior

any attempt to re-activate a concession system

to issuing concessions on tribal lands, nor did it

which denies local ownership of the resource

bind concessionaires sufficiently to deliver social

will be counter-productive. There is also interest

support measures.

in the sector in smaller scale logging enterprise and community-private sector partnerships, now

Getting Back To Basics

the norm in countries as diverse as Sweden and Mexico and which challenge the income-generating

Consequently, through 2007 and 2008 much

superiority of large-scale industrial operations.123

attention was focused on the drafting of the Com-

Additionally, there is interest in being able to enter

munity Rights Law. Civil society actors had been a

into contracts directly with communities, with the

driving force in mobilising UN sanctions and sub-

Authority serving as facilitator and watchdog and

sequent overhaul of the forestry sector and would

revenue collector, now more widely conceived as

lead the way in carrying out research and popular

the correct role of the State.

consultation on forest land rights. In this it initially worked closely with the supposedly reformed Forest Development Authority. Through several drafts, the Community Rights Law draft was rooted in recognition that:

Reneging on the Commitment to Reform FDA resistance to changing the tenurial basis

 The natural forest resource as a whole is

of the 2006 forest legislation has steadily grown

community-owned; and

over the review and drafting process. An uneasy

 That the legal separation of trees from the

compromise of sorts was found in the fifth and sup-

soil from which they grow introduced in 2000 be

posedly final draft (July 2008) in which the status of

revoked.

community rights to forests or forestlands was set

As to be expected (and as already seen to be

aside for decision by the upcoming Land Commis-

the case in Afghanistan and Sudan) the process of

sion and/or as laid out in Liberian law. At the same

articulating legal paradigms has generated consid-

time the draft recognised that forest growing natu-

erable debate. Ultimately this has exposed a pro-

rally on land is afterall attached to the land; that

found divide between the positions of the Forest

forest resources on community lands are owned by

Development Authority (FDA) and civil society as to

local communities. However the law did not specify

customary rights to own, use and manage their re-

what community lands constituted and there was

sources. Neither government nor even the logging

in other articles amply scope for the Authority to

sector falls entirely on one side or the other. The

exclude much of the forest resource as the National

Governance Reform Commission is in the process of

Forest Reform Law 2006 had done before it. Still, the

launching a Land Reform Commission under which

compromise draft did propose that any decision

there is expectation (and demand) that custom-

affecting the status or use of community forest re-

ary land rights are entrenched as private property

sources would not proceed without the prior, free,

rights. Against this is frustration in the Treasury at

informed consent of the community (s. 2.2).

the continued loss of revenue through the failure to

While the compromise draft pleased the medi-

reissue concessions, along with allegedly lukewarm

ating Governance Reform Commission, there was

response to carbon credit proposals which would

grave reservation expressed on the part of some

enable the forest not to be logged at all.

leading civil society organizations and (and echoed

28

whose Land Is It? Commons and Conflict States

in a critique by the World Bank) that there was con-

partly already mobilised national consultation

siderable risk in leaving the issue of forest tenure to

process.

the proposed Land Commission, given that it could

In response, lawyers acting in concert with

well take some years to conclude its work. In the

sympathetic Senators and Members of the House of

interim communities would be exposed to further

Representatives placed before the Senate an alter-

loss of forest lands and erosion of related forest

native version of the law. This was largely an earlier

use and management rights under allocation of

draft of the law and which reinstated explicit recog-

their lands to long term concessions. Reliance on

nition of forests as belonging to the communities

existing Liberian law had also been amply shown to

within whose customary domains they are located,

be dangerous, given its ambivalent terms precisely

laid primary management and regulatory author-

on the matter of customary land rights.

ity upon community based forest management

There was also the more immediate concern

committees, and enforced rigorous procedures for

that the Forest Authority had already demon-

community consent for issue of all licences and

strated bad faith in not adhering to its commitment

concessions affecting their lands (s. 1.3, Chapters

to refrain from issuing concessions ahead of the

3, 4 & 10). In addition, the law permitted the status

promulgation of the new law. In April 2008 three for-

of National Forests, National Parks and Wildlife Re-

est management contracts were advertised, caus-

serves to be revisited on a case by case basis, with

ing affected communities to publicly demand how

the potential for the ownership of these areas to be

the Authority thought it could issue concessions

restored to communities, albeit with conservation

without the permission of the forestland owners.

124

The persistence of the Authority along this course,

restrictions and government controlled regulation and management to be fully retained (Chapter 4).

evaluating the 13 bids and deciding grantees (July 2008) increased concern. It even raised comment

The People’s Representatives Speak

by the still-vigilant UN Panel of Experts on Forestry reporting to the UN Security Council.125 The com-

It was this version of the Community Rights

munities began to raise funds for taking the issue

Law with Respect to Forest Lands which was over-

to the Supreme Court.

whelmingly enacted by the Liberian Senate on September 11th and unanimously passed by the House

Doing Away With Sound Process Worse was to come. Without informing the

of Representatives the following week (September 19, 2008). At the time of writing (October 2008) the President has yet to sign the law into force.

collective drafting committee, the Forest Develop-

Lobbying for her to do so, or not do so, has been

ment Authority modified the compromise draft

active since. These include formal Forest Authority

and submitted this version to the legislature for

submissions advising the removal of five chapters

its approval via the President in September 2008.

of the law in their entirety reducing community

The modifications were small but significant.

rights to virtually the status quo of 2000 and the

They included doing away with joint community-

ambivalent terms of the standing 2006 law. Several

Authority supervision of commercial or industrial

conservation NGOs, concerned at the threat to the

contracts, and restricting community involvement

status quo implied by the challenge to current park

in contracts above 50,000 ha, thus neatly exempt-

management, have sided with the Authority.

ing most proposed concessions and throwing the

In contrast, the wider NGO Coalition of Liberia

need for community consent into question. How-

came out with unambiguous support for the law

ever there was more alarm and even anger that

in a press release on September 22, 2008. At least

the Authority had reneged on placing the final bill

two popular demonstrations in support of the law

before rural communities in a long-promised and

have been held in rural counties, and noticeably

29

including local trade union and lower level forest

related county administrative authorities. Rela-

sector representatives. The Secretary General of

tively few disputes over the boundaries of commu-

the Association of Liberian Loggers has also openly

nity land areas reach the courts, given the expense,

criticised the Authority for its continuing inability

time and often dubious reliability, involved. More

to reform itself. Constituencies have publicly

and more communities either as villages (referred

praised their Senators and MPs for their courage in

to as ‘towns’ in Liberia) or as village clusters (chief-

In critical respects, the loyalty

doms) have begun the process of registering these

126

enacting a fair law.

127

of the legislature members to the President or to

community land areas as their collective property

their constituents is being profoundly tested. There

and have already secured necessary permits to

is little expectation that the issue will be swiftly

survey (Tribal Land Certificates). They raise funds

resolved. Nor are there much-needed signs that the

from their employed relatives in cities to see this

President herself is acting decisively on this matter.

through. Land offices in all forested counties of

There are suggestions that her inclinations are to

Liberia report a sharp rise in applications for Public

the pre-war status quo of state ownership as well

Land Sales from communities.

as regulatory control of the sector but with equal awareness that she may hardly contradict her own

Room For Manoeuvre - Peacefully

parliament’s decision. The Forest Authority itself continues to lose valuable time in assisting com-

There are elements in the Liberia case which

munities to establish local level forest governance

suggest a satisfactory outcome could in due course

committees with which it could consult and reach

emerge despite currently polarised stand-off

case by case agreement, a procedure which is al-

between people and state. The extent of inclusion

most certainly going to remain prerequisite to issue

and thence popular awareness around the issues is

of any harvesting rights on their lands.

high, added to which there has been demonstrated capacity to take to the streets to voice concerns,

Community Action: Securing “Our Land” In the interim, rural communities are acting on the ground to secure their customary tenure. This accelerates a process begun with the ending

to bring these to the attention of a vibrant and free radio and print media, and to look for and find support from the international human rights and forest development and conservation sectors. Process has on the whole been sound in the

of the civil war as some thousands of displaced

drafting of the Community Rights Law at least until

communities returned to their rural homes and

mid 2008. Discussion was consciously rigorous in its

began redefining the limits of respective domains

representation, incorporating government, private

with their neighbours. The author found that in

sector timber interests, NGOs and forest project

mid 2007, upwards of one third of all communi-

advisers, and a course of mass popular consultation

ties in five sample communities had such pro-

determined upon. It was failure to pursue this by

cesses of inter-community boundary demarcation

the Authority which most illustrated breakdown.

underway. There may little doubt that the one

International actors have been alert to the issue,

concession of the National Forest Reform Law 2006

ranging from a UN Security Council resolution on

to communities, to deliver one third of concession

Liberia (1819, June 2008) reminding the Government

rental to affected forest-owning communities,

of Liberia of its obligations to attend to and resolve

helped accelerate this trend.

land and tenure rights in regard to the timber

128

Boundary agreements are duly being recorded in witnessed documents. A proportion of cases require higher level facilitation to reach agreement, invariably first sought from paramount chiefs and

sector, to more modest international NGO support from agencies like Global Witness. However, it has been the powerful role of local civil society organizations which has been the most

30

whose Land Is It? Commons and Conflict States

articulate but also the most moderating influence,

give way to business as usual, the Sirleaf Johnson

assisting local communities to have their voices

Administration is as cognizant of the perils of ignor-

heard whilst equally engaging itself as coopera-

ing popular demands around such founding issues

tively as possible with a clearly reluctant Forest De-

as rights and powers over often the only significant

velopment Authority. While the dialogue is fraught,

capital asset of the poor rural population, their

civil society participation is now accepted as an es-

forests. Never far away is recognition that with

sential element of decision-making. Plans towards

such a youthful, often volatile, war-experienced

a more devolutionary style of government, building

and largely unemployed population, conflict in

upon existing community socio-spatial structures,

forested parts of the country could conceivably be-

reinforce the role rural Liberians are directly

gin all over again – but this time with a much more

expected to play in the future. Public consultation

specific grievance in mind. Returning the law to the

itself is increasingly a vehicle in the emerging new

very public consultation which it failed at the last

governance approach. And while the signs are that

minute to receive, could prove the most construc-

the halcyon early post-conflict era is beginning to

tive and conflict-dispelling way forward.

31

3

Conclusion

Where do these three examples take us?

realignment in their respective rights and powers over property. Further, it will be evident that the

Commonalities

battle over land rights is deeply intertwined with challenge to wider inequities, of which in agrarian

First, there is clearly an enormous amount of commonality in the treatment of customary

states, rights over the land are elemental. The focus of land conflict over common prop-

land interests over the last century and its drivers.

erties (rather than houses and farms) is not mysteri-

These deserve cursory recap. They include compa-

ous; it is these that are still open to capture and

rable origins of dispossession in introduced and

where most incentive to challenge current arrange-

mainly colonising interference in local land norms,

ments lies. The commonality of economic triggers

at times compounded in more recent history by

both past and present in the 20th century demise of

a new form of international interference, the

customary rights to those resources is also clear, as

advisory and bank-rolling aid community. Rarely

is the stark rapacity with which this occurred, and

have any of these forces been entirely malign, and

continues to reoccur. We have also seen that his-

on the contrary, have at times have been fully well-

tory matters, its lessons unwisely ignored.

intentioned. Nonetheless, as we have seen, sooner

Still, we are left with the fact that in none of

or later stark lines are drawn between people

these cases has acknowledgement of the com-

and state as to the possession and control over

mons as the property of communities been firmly

traditional communal assets - precisely because

achieved, three to seven years after the cessation of

they are assets. While this takes post-conflict ad-

civil war. In two of the three cases the issue has only

ministrations by surprise in their assumption that

come fully to the surface through war. Even in the

they are at one with the people, it is less surprising

third case, Sudan, the post-conflict period is seeing

when the centrality or resource control to state-

this war issue further clarified and, in important

making and the time-old extractive function of the

ways, more precisely contested. That is, the people

state to the supposed benefit of all is taken into

of Sudan are much clearer in their own minds as to

account.

what exactly they are finding for on the land front.

The instrument of law has also been uniformly

Several conclusions may be drawn; first, that land

prominent, in both the unmaking and making of

relations are an issue that takes time resolve but

rights. The cases are also alike in that while conflict

more importantly this is so because battles over

over collective assets may play out along inter-

rights and resources embody struggles over power,

ethnic and religious lines, the more fundamental

place and money. It would be naïve to assume that

conflict is between people and their governments.

the end of conflict ends land grabbing, or that elites

Ultimately, this may only be resolved through

or governments will not generically seek to maxi-

32

whose Land Is It? Commons and Conflict States

mise control and rent-seeking over these precious

dress and redress is on the agenda, if most frag-

capital assets. The experiences of these three coun-

ilely the case in northern Sudan. In Liberia, Af-

try cases are echoed widely in conflicted states.129

ghanistan and in Southern Sudan, first platforms of change have been reached, expressed in the

Land Rights Reform as Integral to

content of draft new legal paradigms as to how

Reformation of the State

communal assets are modernly best understood. and legally entrenched. In all three instances

At the same time, the tumult of post-conflict eras is not just the tumult of restoring order but the tumult of change, of finding a new way to run

this represents a significant improvement upon pre-war law. The similarity in processes towards even this

society. The overriding desire to get back to the

half-way point is worthy of note. It is not occurring

way things were confronts the reality that every-

because the incoming post-conflict administrations

thing has changed and the past cannot be entirely

are simply changing the law (although this could be

recaptured. In property relations as much as in other areas, the balance of power is realigned and governments in particular are challenged in ways they never expected. People want peace, but not on the same terms as before. War-experienced populations are not just war-weary but weary-wise, and not necessarily compliant. They have also generally found their voice and vehicles for voice. While many of the triggers to original conflict remain in place, these are popularly better understood, and in the jostling for place and power which follows a conflict, concretise into clear demands. It may safely be assumed that post-conflict conditions on all sides signal a necessary new phase in the making and remaking of the modern agrarian state. Given the land-based resource based dependence of agrarian states, it is logical that the founding question “whose land is it?” will be a key issue in the changing balance of power. Given the predomi-

nearly the case in Southern Sudan). On the contrary, new administrations have been strongly disposed to reverting to pre-war norms. Rather, change (or the drive for change) is deriving from rural populations themselves. It is into these processes which local and national bureaucracies are necessarily drawn. The resulting exercises provide more than shared learning by doing, inclusive of government actors. They empower participants and empower the issue. Even at a small scale, they open routes which are difficult to close. Liberia provides another aspect of this trend, less in directly assisting communities to rephrase their relations than in the way in which civil society groups have set themselves firmly as the mediators between state and people, and the agent which brings the issue into the public and international arena. This trend is barely visible in either

nantly rural nature of the resources at stake, it is

Sudan or Afghanistan and where the absence of

not surprising that this battle over rights often

non-government advocacy must be viewed with

crystallizes around rights to the valuable commons

increasing concern, helping to lead disagreement

– forests, pastures and fish-rich swamplands, to

and discontinent nore readily to renewed violence.

which mineral wealth where it exists merely adds

Moreover, in proposing to bring grievances to the

pressure.

court, Liberia holds out hope that the common issue at stake may be more peaceably resolved than

A Common Path Forward – Popular Engagement While the threat of violence hovers over

is immediately likely in Sudan and Afghanistan. In Sudan, state-people positions are if anything, hardening in the north at this time. While this is less so in Afghanistan, revitalised hardening of

rights to the commons in all three cases, they

positions is occurring by their proxies, settled and

also offer some cause for optimism in that ad-

nomadic communities, and given Taliban support

33

for the latter, is bringing the matter into seriously

and in some cases do, such as where a valuable

dangerous territory.

wildlife area is handed over to a eco-tourist enterprise, or to a private logging concern. However it

Battles over Meaning – The Changing Constitution of Property

is rare to find communal property which may by custom be entirely alienated, by sale or otherwise. This stems from the peculiar character of

This paper has explored the fate of the com-

traditional commons as community property. No

mons through a lens which juxtaposes understand-

community is static, or in its membership lives and

ing of their tenure as real property against a view

dies at precisely the same time, thus precluding

that these are un-owned, un-ownable and/or inap-

the kind of formalised inheritance which applies

propriately vested in communities.

to individually owned estates. This explains why a

Resistance to the idea of the commons as

traditional common property is owned not only by

private (group-owned) property remains in all three

the living generation but to generations past and

Administrations and each gathers support for this

in the future. It is a fixed and identifiable owner

from a range of actors, sometimes including inter-

but an owner whose internal nature changes over

national land advisers. It is as well to unpack what

time.

seems to be a still-unresolved conflict in ideas, and

In attempting to better define customary

in particular to liberate the meaning of the term

ownership and particularly as applied to family or

property from the 20 century straight-jacket into

community property, there has been revived inter-

which it is still thrust.

est towards unpacking tenure into specific rights

th

First, it would seem that, economic drivers

within a bundle of rights. This is both helpful and

aside, resistance to recognising the commons as

unhelpful. Positively, this allows distinctions to

real property is primarily conservatism, a luddist

be drawn between possessory and access rights.

refusal to let go of introduced or evolved notions of

It has been shown how in Sudan and Afghanistan

property which have never sat well in the meanings

the ability to do this will be important to resolv-

of property in the customary/indigenous realm.

ing sedentary-nomad interests in workable and

Second, officials rightly suspect that recognition

acceptable ways, and not least because this reso-

of collective land interests as property amounts to

nates with older customary practice. Negatively,

empowerment, placing assets and powers in the

the unbundling of rights may have the reverse

hands of the mainly rural poor, and through which

effect; enabling those reluctant to acknowledge

they might change the status quo; this includes

the commons as owned assets to claim that the

limiting rent-seeking or coercing more equitable

sticks in the bundle simply do not add up owner-

distribution of profits derived from the use of their

ship, as usually lacking in that bundle is the power

newly-recognised property.

to sell the land.

Using the Non-Tradable Nature of

The Need to Adopt a Modern Template

Collective Property against Itself

of Ownership

Third, it is relatively easy for parties resist-

There are many reasons why customary tenure

ing recognition of especially collectively rights

over collective assets must be both termed and

as property to draw upon the capitalist principle

legally rooted as no less than ownership obtained

which defines property as a commodity, a fungible

under non-customary norms, for which questions

and tradable asset. This may theoretically be ap-

relating to its saleability are ancillary.

plied to the commons, at least to the extent that

The last century has shown that without

the owning community may lease out the estate,

acknowledged ownership a community cannot ex-

34

whose Land Is It? Commons and Conflict States

ercise the most essential right it endows; the right

into disarray. Competing status of the commons

to determine who may use the land and how and to

as belonging to communities or governments has

whom the benefits of use accrue. Whether the com-

been identified as the crux of the issue. It has been

munity does not permit itself or is not permitted by

argued that just treatment of commons tenure

national law to sell the resource is irrelevant. There

means recognizing these as the private property of

are practical considerations, most affecting uncul-

those communities which customarily hold these

tivated collective resources; without the right to

assets; and given the stresses of the modern world,

exercise this power, the resource itself will degrade

endowing these with the maximum protection that

and lose its value given that there is no greater

constitutional and property law allows.

incentive to conserve a resource than to own it.

What this means for the peace agenda is that

And, as above, clarification of distinctions between

the impulse for restorative justice needs to shift

who owns and who uses a resource are increasingly

its focus. To date restitution of property has meant

essential to ordering rights in fair ways.

restitution of houses, land and properties to those

Most of all, where competition for re-

who held or owned these immediately before the

sources is so intense and the instrument of own-

war. This has been the outstanding post-conflict

ership so powerfully used to secure resources

land, housing and property concern of the interna-

in a capitalised world, nothing less than a

tional community over the last decade or so. Finally

presumed right of ownership will suffice. Simply

in 2005 the UN Pinheiro Principles were agreed

permissively possessing the land is not enough.

and have since been delivered into a multi-agency

The needed transition at this point is from

handbook guiding post-conflict administrations

customary rights being considered ‘not good

and humanitarian and reconstruction agencies in

enough for ownership’ to one in which these

putting this restitution into practice.130

rights are seen as not good enough without ownership being implied. Even for customary owners whose oc-

However, the three country cases reviewed here demonstrate that restitution in these terms may be the very opposite of what is required in

cupancy and use is currently unthreatened,

regard to the commons, both for the sake of justice

re-examination of the implication of customary

and to enable peace to be lasting. Returning the

rights in the modern world and their reloca-

pastures of Afghanistan to state tenure and/or

tion as unambiguous rights of ownership is

Kuchi control, returning Liberia’s forests to de facto

necessary. This is, in short, precisely what rural

Forest Authority ownership, returning the plains of

peoples as discussed in this paper have been

Sudan to the lessees of the state, will trigger return

forced to do as the rights of customary tenure

to conflict, and in very similar ways. For as long as

are threatened.

customary communal rights remain unsecured, this threat hovers and is unfortunately already seeing

Relocating the Focus of Restorative Justice This paper has focused on a single element of

some fruition in the case of Afghanistan and Sudan. These experiences are echoed throughout conflicted agrarian states, whether in Aceh, Indonesia, Cambodia, Angola, Cote D’Ivoire or other cases.

property relations, the tenure status of the commons, those land assets like forests and pastures which communities own in undivided shares. It has been suggested that conflict over these assets is a rising agrarian question and one which comes

From Restoration to Reform of Land Relations The implications for the post-conflict assis-

to the fore most urgently in conflicted agrarian

tance sectors are clear. A more holistic approach

states, where property relations have been thrown

to land relations in conflicted states is required

35

and stemming from this, a shift in the meaning of

clear; additionally, that every advantage must be

restorative justice in the land and property sector.

taken to lock post-conflict administrations into

This is not something which the humanitarian or reconstruction sector needs to be told at this point. More or less every agency engaged with as-

binding actions to carry through on these commitments. In most ways the experiences of Sudan, Af-

sisting post-conflict administrations is at this time

ghanistan and Liberia endorse that position. Even

grappling with this need. How to move forward is

in the case of Sudan, the one country among the

commonly on the agenda. There is, that is, less a

three where land rights were on the peace making

need at this point to get the subject onto the peace-

agenda, failure of the parties to clarify exactly what

making than to get the content and strategies right.

was meant by customary land rights has handi-

This paper has argued that one of the more funda-

capped success to act on this count in the north.

mental matters to be addressed is the policy and

And without internationally binding conditionality

legal status of customary land interests, and within

(on this or any other element of Sudan’s Compre-

this, particularly relating to properties held in com-

hensive Peace Agreement) there is little to force

mon. These are central to the issue and central to

Khartoum to do so.

peace-building and keeping the peace.

On the other hand, there is plenty of scope as

Of course this is not the only property issue

shifting policies in South Sudan suggest that even

confronting conflicted polities, nor is its address

where war was fought partly in order to secure the

the only substantive matter requiring reform. A

fact that ‘land belongs to the people’, significant

larger set of issues may be readily laid out. One

reneging on the part of those same combatants may

of the most important has not been touched upon

readily occur. All too often political commitment

here, the need to prepare for the post conflict city,

to act in this area weakens and may even dissolve;

the reality that conflicts and particularly their

in different ways Angola, Namibia, South Africa,

131

ending, trigger sharp growth in cities and which

Rwanda and Uganda are among those states which

far exceed the already strong urbanizing trend

have all fallen well-short of post-conflict commit-

seen in agrarian economies. This places stresses on

ments affecting majority customary land interests.132

post-conflict governance which new administrations are ill-equipped to deal with. As the conflict in Juba City between Government and the Bari com-

Public Ownership of the Issues is Key

munity in Southern Sudan briefly suggested, even

The cases addressed here also suggest that

issues within this sphere are not unrelated to how

practical progress may only be made once peace is in

customary land rights are treated in practice and in

hand and people are restarting their lives, their land

law. In fact, it is often at the urban-rural interface

use and their land relations with each other and out-

where customary rights come under most tangible

siders, including the Government. Moreover, it may

pressure.

also be concluded that the issues are best explored in ways in which those affected may themselves

Making It an Issue of Peace or PostConflict Democratization?

become more engaged directly in and lead reforms. This implies an even more important message; that ultimately it will be a matter of popular will that

The question finally arises as to how far it

recognition of majority land interests as property

is necessary for concrete commitment to occur

occurs. A fair case may be made that such progress

within the peace accord agenda. In principle, it

as has been seen on the customary and commons

may argued that no peace agreement in a con-

issue in Sudan, Afghanistan and Liberia rests almost

flicted agrarian state should be signed without the

entirely upon public awareness and action. Time will

status of customary rights as property rights being

tell if this helps deliver change – and peace.

36

ENDNOTES

1

See Alden Wily, 2007a for overview of five main patterns of customary tenure globally.

2

Refer Alden Wily, 2006b for development of this thesis.

3

See Alden Wily 2007b: 78ff for analysis of the Marshall Ruling

4

As implicit in Article 6 of the General Act of the Berlin Conference on West Africa, 26 February, 1885. To be precise, the colonisers did not make this a tenet of law or agreement but are on record as dismissing as preposterous the proposal made by the American observer to the conference that African lands should be paid for their land, not least given the debt natives would owe to Europe in its noble task of their civilization.

5

After half a century, it is time to stop blaming Garrett Hardin’s The Tragedy of the Commons for this thesis (Science, 162 (1968): 1243-1248) which has much older origins in colonial treatment of non-cultivated lands. Hardin’s essay was a theoretical exposition on the ethics of maximising tendencies of individuals in respect of open access domains and he had the misfortunate to example ‘a pasture open to all’ (my emphasis). In doing so he helped sustain the orthodoxy that communally-used assets are un-owned and which therefore must be privatised to survive. Responsibility for the already well-entrenched orthodoxy that commons are by definition unowned and that ownership and property are necessarily individually possessed was hardly Hardin’s although he sustained this fallacy.

6

A famous exception was the Ashanti chiefs of the Gold Coast who resisted the inclusion of their lands under Crown Lands; Alden Wily and Mbaya, 2001, Ubink, 2008.

7

Alden Wily, 2008a.

8

For Nepal, see Alden Wily 2008d.

9

Alden Wily, 2006b, CLEP, 2008.

10 This is explored in Alden Wily et al., 2008. 11 See Alden Wily, 2003a for concrete examples in Sub Saharan Africa. 12 Alden Wily, 2006b, 2008c, Fitzpatrick, 2005. 13 Blomley et al., 2008. 14 Norfolk and Tanner, 2007. 15 For example, Deininger, 2003 for The World Bank. 16 Such restitution has even included restitution of nearly half the New Zealand’s fish stocks to Maori tribes in 1992. It also

needs to be noted that New Zealand has an unlike history in these matters in that from the outset (1847) indigenous (Maori) land ownership was legally entrenched but then not honoured by Governments, thus making it much more inevitable that restitution would eventually occur, such as also so in the Liberian case covered in this paper. See The Independent, 26 July 2008 (United Kingdom) for information on the most July 2008 restitution ruling in New Zealand. 17 This was in return for unspecified ‘business links and technical know-how’ and which the Abu Dhabi representative noted ‘will

not be our last such project in Sudan’ (The Guardian, July 2 2008, United Kingdom). 18 Explored in Alden Wily, 2008b. 19 Alden Wily et al. 2008. 20 HSRP, 2005, 2008. 21 Alden Wily, 2008b. 22 Alden Wily 2000, 2003a, de Janvry and Sadoulet, 2002, Borras and McKinley, 2006, CLEP, 2008, Borras and Franco, 2008, Akram-

Lodhi ed. 2008. 23 HSRP, 2005, 2008. 24 Collier, 2004, 2007, Alden Wily, 2008b. 25 Alden Wily, 2008b.

37

26 FAO, 1999. 27 The literature is rich but references here kept to a minimum, accessible in Alden Wily, 2003b, 2004a and 2008d. Among the most

useful for this subject have been Canfield, 1973, Gawecki, 1980, Lee, 1996, Male, 1982, Poullada, 1973, Mousavi, 1998 , Tapper, 1973, Pedersen, 1994 and Ferdinand, 2006.. 28 Recounted in Lee, 1996, Tapper, 1973 with further documentation in Alden Wily, 2004b. 29 Recorded in Ferdinand, 2006. 30 Fayz Mohammed, 1925-26: Vol. III, as cited by Ferdinand, 2006. 31 Tapper, 1973, Pedersen, 1994, Ferdinand, 2006, Gawecki, 1980, Alden Wily, 2004a. 32 Alden Wily, 2003b, Stanfield & Safar, 2007. 33 Samples of entitlements from the 1970s are provided in Patterson, 2004. 34 Documentation of the process in Hazarajat is provided by Gawecki, 1980, Pedersen, 1994 and Ferdinand, 2006 and the conse-

quences reported in certain districts in Alden Wily, 2004b. 35 A famous case of which is described by Favre, 2003. 36 Review of the 1960s-1970s reforms provided in Alden Wily, 2003a. 37 Documented by Pedersen, 1994, Patterson, 2004 and Alden Wily, 2004a. 38 See Mousavi, 1998 for comprehensive review of the politicisation of the Hazara prior to and especially as consequent of the

1978 communist revolution. 39 Alden Wily, 2003a. 40 The events of 1997-2000 in Bamyan Province are recorded in Alden Wily, 2004a. 41 Larsson, 1978. 42 Alden Wily, 2004a, Favre, 2003. 43 Alden Wily, 2008d provided detailed case studies of these events in especially Yakawlang District of the central Hindu Kush. 44 Human Rights Watch, 2002, Alden Wily, 2003b. 45 ADB, 2002, 2004. 46 Alden Wily, 2003b. 47 Alden Wily, 2003b. 48 De Weijer, 2005a. 49 Amendment to Land Law, 2001 of Gazette 595, 2006; Articles 4-11. 50 De Weijer, 2005b. 51 Alden Wily, 2003b, 2004a, 2005a, 2005b. It would be inappropriate not to acknowledge that the author was closely involved in

this advocacy, as in the FAO initiative shortly described. 52 Alden Wily, 2003c. 53 Alden Wily, 2005b, 2008d, de Weijer, 2006. 54 Stanfield et al. 2008. 55 Alden Wily, 2006c, 2006d, 2006e. 56 Lety, 2007, Alden Wily, 2006d, 2006e, 2007c, 2008d. 57 The outstanding case of this is Khamaneil Pasture, the history and current fate of which is detailed in Alden Wily, 2008d. 58 Addressed in Alden Wily, 2008d. 59 Alden Wily, 2006c and 2006d. 60 Stanfield et al. 2008. 61 The Afghanistan National Land Policy, 2007 makes clarification and securing of land resources integral to community based

resource management (Policy 2.2.6), issues of ownership and access rights to pastureland’ a provincial matter, and seeks to have all land classified as public, private, community or state-owned land (Policy 2.2.1).

38

62 Stanfield and Safar, 2007, Stanfield et al. 2008. 63 Rubin, 1995. 64 Alden Wily et al. 2008. 65 Mousavi, 1998. 66 Alden Wily, 2006e. 67 Daily Outlook, June 2007. 68 Daily Outlook, April 2008. 69 Haidary, 2008. 70 UNAMA, 2008a. 71 UNHCR, 2008. 72 Hazaristan Times, July 10 2008. 73

UNAMA 2008a, 2008b.

74 Khaleej Times, 6 August 2008. 75 Alden Wily, Forthcoming. 76 As specifically stated by the Vice-President of Afghanistan (Hazara Times, July 10 2008). 77 The World Bank, 2008. 78 Alden Wily, 2004b. 79 See Manger, 1994 & 2003, Babiker, 1998, Abdel-Hamid, 1986, and Johnson, 2003 for history of the central region of Sudan. 80 Baggara in the central region comprise Misseriya, concentrated in the west of Southern Kordofan today and Hawazma, living

in the central and mountainous Nuba areas and eastwards. 81 Aided by the People’s Local Government Act, 1971, which abolished the native administration system and replaced this with

hierarchies favourable to Khartoum. Space does not allow these corollary assisting processes to be elaborated here. 82 Cole & Huntingdon, 1997. 83 Refer Alden Wily, 2006a for review of the laws. 84 This began with Kitchener’s Title of Land Ordinance in 1899 which declared all southern Sudan and rainfed land of central,

eastern and western Sudan to be Government Land, although subject to occupancy rights. The precise law which deemed all waste, forest and unoccupied land to be Government Land was the Land Settlement Ordinance, 1905, its provision further entrenched in 1925, 1928 and 1930 and 1970. 85 Current national law on land includes the Land Settlement and Registration Act, 1925, the Land Acquisition Act, 1930, the

Prescription and Limitation Act, 1939 (which confirmed that usufructs cannot eventuate into absolute ownership) and the Civil Transactions Act, 1984. 86 This provision borrowed directly from the colonial laws for British India, which in turn had a long history in English feudal law

in the notion of ‘Wastes, Woods and Pastures’ belonging to Lords and the King, not communities (1285). 87 Cited by Babiker,1998. 88 Babiker, 1998. 89 Salih, 1982. 90 Salih, 1982, Abdel-Hamid, 1986. 91 Manger, 1994. 92 Johnson, 2003. 93 Abdelgabar, 1997, Johnson, 2003. Osama Bin Laden was one recipient of a land grant in the Nuba Mountains, on his settlement

in Sudan. 94 Manger, 2003. 95 A first step towards this was undertaken under the Peace Agreement 2005 when the SPLA reluctantly agreed to the inclusion of

39

the Arab-dominated West Kordofan within the boundaries of the new Southern Kordofan, likely reducing the Nuba to a minority. This has been compounded by the failure of the national census in April 2008 to comprehensively visit and enumerate Nuba communities (ICG, 2008). Much less success has been achieved with keeping the Arab population of the Southern Kordofan State loyal to the ruling National Congress Party, with a rising tide of reversion to the northern Umma Party. 96 Alden Wily, 2006a. 97 A special case was made for the third contested area, Abyei, as the homeland of the Ngok Dinka who had formed the SPLA, and

over which the SPLA leadership was unprepared to compromise. A dedicated protocol was drawn up giving Abyei dual status, able to send representatives to both the national and Southern Sudan parliament and permitted to join the South by referendum in 2011. Needless to say, the boundary of oil-rich Abyei with the North has been a focus of dispute and then armed conflict in early 2008, the recommendations of a special boundary commission having failed, and now sent to a special tribunal in The Hague for resolution. 98 Alden Wily, 2006b. 99 CLSP, 2005. 100 Pers comm. C. Gullick, Customary Land Security Project, 2004-2007. 101 And in which again the author must declare a personal interest, having designed and technically advised the pilot project

(2004-05). 102 Alden Wily, 2004c. 103 Alden Wily, 2005b. 104 ICG, 2008. 105 Alden Wily, 2006a. 106 Pers comm. S. Williams, Chief of Party, Customary Land Security Project, July 2008. 107 ICG, 2008. 108 Pantuliano et al. 2007, ICG, 2008. 109 De Waal, 2008. http://www.ssrc.org/blog/darfur/2008 110 Had this article applied to Kordofan or Darfur this date restriction would have prevented restitution of the millions of hectares

leased to northerners and companies during the 1960s and 1970s, but it assumed that this did not significantly occur in the south. 111 Pers comm. J. Hatcher, July 2008. 112 Patuliano et al. 2008. 113 This section derives from research carried out by the author during 2007 on the forest tenure issue (Alden Wily 2007b) in as-

sociation with the Sustainable Development Institute, Monrovia. 114 Refer Alden Wily, 2007b: Cht. 1.2 for reproduction of these early sales contracts. 115 Ubink, 2008. 116 Alden Wily, 2007b. 117 Land Registration Law, 1974, s. 8.44, 8.53, read with Public Lands Law, s. 30, 53 & 70. 118 Ubink, 2008. 119 Alden Wily, 2006b, 2008c. 120 Additionally, unlike minerals, forests have never been constitutionally declared to be national property See Alden Wily, 2007b;

Cht. 4 for details. 121 Alden Wily, 2006b & 2007b. 122 This includes the support of the Association of Liberian Loggers, the Liberian Timber Association and the Liberian Business

Association, as per press release September 22, 2008 from the NGO Coalition of Liberia. 123 Bray et al., 2006, RRI, 2008. 124 The Analyst, 24 April 2008.

40

125 UN Security Council, 2008. 126 The Inquirer, 9 October 2008. 127 The Inquirer, 8 October 2008. 128 Alden Wily, 2006b. 129 Alden Wily, 2008b, Collier, 2004. 130 See discussion of this in Alden Wily, 2008b. 131 See Alden Wily, 2008b, for exposition of issues. 132 Alden Wily, 2006b.

41

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Minority Rights and Struggles for Land in Brazil and Colombia
The struggles for land discussed in this paper have occurred in contexts characterized by some improvement of laws and p

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