During my last mission, supporting the TC PAM humanitarian response, I had the opportunity to discover quite interesting land tenure systems. The Pacific chain of islands stretching from the archipelago of the Vanuatu in the West and the Cook Islands in the East is covering a huge area and presenting an extremely diverse and complex structure of 14 countries and territories. Despite the fragmentation and the different influence of colonial legal systems (common law and civil law) we can still identify common elements. Probably, the most important one is the strong recognition and protection of customary land rights.
As an example, in Papua New Guinea, the percentage of customary land account for around 97% of the whole land, while public land is residual and limited to public buildings and infrastructures. This configuration facilitated the development of hybrid legislations meant to reflect the complex structure of the society in the Pacific and to promote an inclusive approach to development. In recent years modern agriculture systems and export oriented logging added pressure to increase improve access to natural resources. The need for more flexible approaches resulted in the creation of unique forums for the resolution of disputes over land.
A solution for land disputes in Yemen?
Since the 1990 reunification between, the Yemen Arab Republic and the People’s Democratic Republic of Yemen, the Country has experienced multiple armed conflicts, social and economic instability that undermined the rule of law. In a country where fertile land is a scarce resources the political and military elite took over large chunks of arable land. This was particularly evident in the most fertile areas like the Read Sea cost line region of Tehama and the Abyan governorate.
The 2011 civil appraisal that put to an end the 32 years presidency of Ali Abd Allah Saleh allowed to start a much needed season of reforms intended to find solution for some of the land rights violation perpetrated in the past. Quite interestingly the new President And Rabbuh Mansur Hadi didn’t opt for a traditional legal reparation system but inclined more for a transitional justice approach. For the United Nations, transitional justice can be defined as a “full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”.
In Yemen the transitional justice approach opted for the creation of special commissions mandated to provide reparation to large violation of land rights. The Presidential Decision n.2 of 2013 established a commission to address disputes on land in South Yemen governorates (Abyan and Hadramaut). A second one was established with the Presidential Decree n.6 of 2014 to consider and address land issues in Hodeida governorate. In both cases the commission or committee is composed of judges and security officers. The scope of their work is to address violation of the law and provide restoration of the rights pertaining public and private land. In order to achieve it the commission has the power to investigate, acquire the necessary documentation, summon witnesses and they have the power to implement their decisions.
In 2014 the first commission ended their works reallocating more than 7000 plots of lands in Abyan and Hadramaut governorates.
South Sudan is the newest country in the world covering a surface roughly equal to France but with a population of barely 10.4 million people. Internal conflict that erupted in 2012 caused mass internal displacements and for 2014 7.1 million are counted as food insecure. The recent conflict can be analysed as a dispute over access to natural resources and wealth sharing. The main resource of the country is oil that account for about 90% of the Country GDP.
A largely underestimated resource of the country is the land itself. One of the main challenge foreseen for the exploitation of this resource is the lack of rules and regulations of land tenure. Traditionally most of the tribes in South Sudan are considerate as semi nomadic seasonally moving with their cattle in search of fresh pasture and water. In the past apart from urban areas or along the border of Uganda South Sudan never implemented a modern cadastral and survey system. Title deeds were prepared only in case of new urban expansions or the creation of commercial hubs. The end of the war with Sudan (2005) and the declaration of independence (2011) hasn’t changed much the situation. The arrival of hundred of thousands of people from Sudan in need of a plot of land for housing and agriculture has made the problem worst. Numerous conflicts erupted in different regions because the government was allocating land that was claimed by a near by village. The long standing civil war between North and South disrupted and undermined the traditional way of dealing with conflict over land. Grown as IDPs young generations lost the memory of tribal, clan and family boundaries traditions and uses of natural resources.
An interesting mechanism put in place to reduce disruptive conflicts can be traced back to the ancient roman law principle of “uti possidetis, ita possideatis”, that means “may you continue to possess such as you do possess”. In this way the work and the improvements made by the possessor are protected. In some cases, I had the opportunity to witness in Northern Bahar el Ghazal a more elaborated process. Where returnees claimed stronger right over a plot of land, the traditional court decided to hold the claim until the old tenant could harvest and move to a new area designated by the court. In case of improvement of the plot compensation was also supposed to be paid by the returnees.
Since the turbulent reunification of North and South Yemen in 1990 and the secession attempt in 1994, the country has seen several episodes of violence on public and private land redistribution, which in particular had left many southerners dissatisfied and angry. Subsequent poor land management led to the creation of illegal settlements and lack of investments and policies, which further reduced land available for agricultural purposes. In order to address the matter, the Presidential Decree Number 2 of 2013 was issued, establishing a Special Commission to address disputes on land in the Southern Yemen Governorates. The scope of work for the newly established Commission is to cover violations against public or private lands since 1990. In order to achieve the results as outlined in the decree, the Commission has the power to summon witnesses, collect all the necessary information and documentation necessary to solve cases and/or provide solutions that the government can implement. In Art. 6, the decree established that the Commission should give consideration and precedence to specific cases that can have an impact at the national level. Particular attention is given to the non-use, or lack of investments in potentially fertile land. The apparent intention is to revitalize Yemen’s agricultural sector and provide access to land for cultivation.
Unfortunately the decree is not addressing some of the most problematic areas in Yemen’s land management. First of all, it’s not clear what type of legal sources the Commission would apply to address the land cases. Yemeni law presents a unique rule of law system where three different layers can be identified. In the first instance, the statutory law with the national Constitution and the Yemen real estate law provides a general framework for private land management. Second, the Shari ‘a law and the Islamic Waqf law that regulates the management of religious endowment. In addition, the customary law, the most applied form particularly in the rural areas of Yemen, creates community consensus around a land property dispute.
A second area of concern, apparently not specifically considered by the Decree, emerged from the recent conflict in Abyan governorate between elements of Ansar al Shari’a and the Government, that has had a consistent impact on land disputes. Hundreds of land cases that were standing in the courts for years were resolved by the rebels through a strict application of the Shari’a law. The decisions were also strictly enforced. At present, it is not clear if those decisions can still be considered valid, or must be brought back to normal courts or addressed by the Special Commission.
In Yemen, land and property has historically represented a cause of conflict within a community and between different communities. Any solution from the Commission should address the need of the population of having a rule of law system to effectively solve land cases and enforce the decision among the involved parties.
One year after the Yemeni government regained the control over conflict-torn Abyan governorate, the area continues to experience turmoil with frequent episodes of disobedience that spread into Aden. At that time everyone identified the root causes of the conflict in the attempt of fundamentalist movements to exploit the weakness of the central government but it can also be seen us a conflict over limited access to natural resources such as land and water.
Yemen is a vast stretch of desert terrain, where water is becoming increasingly scarce. Competition over natural resources has reached significant levels in Yemen. Land, in particular, is becoming a precious commodity, with only a small percentage being economically productive. Less than three percent is arable farmland, and only 0.3 percent planted with staple crops. The area where the insurgency started corresponds to the Abyan delta, a vast irrigation scheme that covered 39,460 hectares established in 1960. Most of the crops planted are cash crops, such as banana and cotton, which require a high quantity of water. Everything worked perfectly even during the communist era because the feudal Yemeni system was involved in the sceme management.
Between 1960 and 1990, the population increased two-fold, adding pressure on an already stretched agricultural production and water resources. In the 1990’s, landowners on the upstream portion of the Abyan delta halted maintenance of the irrigation channels to retain water, while farmers downstream were forced to drill boreholes in order to sustain their crops. With traditional systems dealing with land and water conflicts unable to provide practical and enforceable solutions, the Abyan courts were clogged with contested land claims by the mid 2000’s. Corruption levels of arbiters of the court were notoriously high. Incidences of murder and revenge killings rose rapidly.
In 2011, Ansar al Shari‘a took over Zinjibar and Khanfir districts in the south, promising practical solutions to the population. The insurgents rapidly developed a mediation service based on the principles of the Shari’a law that successfully cleared land and water claim cases in weeks, if not days. Cases that had sat in the courts for over a decade and cost the litigants a fortune in fees and bribes were resolved by the application of careful negotiation and were legally documented. When Ansar al Shari‘a moved towards Lawdar, however, the reaction was radically different. The local sheikh perceived it as a treat for their control over the water resources. A local militia called the Popular Committee was quickly created to stop the movement and support the government in regaining the control over the area. With the root causes remaining to be addressed, however, the battle was won, while the war remains.
In a globalized world land is becoming the a key asset for private companies and governments. This blog intend to explore the situation regarding land and property rights in East Africa and Yemen.