Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
“Accountability in Africa’s Land Rush: What Role for Legal Empowerment” is a report commissioned by Canada’s International Development Research Centre and prepared by the International Institute for Environment and Development. This comprehensive document studied 12 countries including: Ghana, Liberia, Zambia, Madagascar, Mali, Mozambique, Cameroon, Sierra Leone, Senegal, Tanzania, Uganda, and Ethiopia. By looking at the legislation impacting land grabs in each country, the report identified gaps in the law that made it challenging for local actors to pursue greater accountability. The type of actors, strategies, and avenues they chose were also discussed at great length. You can find a somewhat brief overview below!
Between 2004 and 2009, 10 million hectares of land were acquired in just five African countries. To date, international responses to the land rush have focused on guiding agricultural investment and land governance. But to improve accountability, efforts must start from small scale producers, farmer’s organisations, NGOs, Diaspora associations and others.
Changes in African Legislation Following the Cold War:
Twenty years ago, the end of the cold war triggered important shifts in the legal system. New democratic constitutions were adopted, though the degree of political openness varied significantly between countries. Decentralisation policies were enacted, which sometimes devolved land or natural resource management responsibilities to elected local government bodies (e.g. in Senegal and Tanzania). Constitutional safeguards introduced or strengthened the legal protection of the right to property. A new wave of progressive land laws were also adopted in a number of countries, including Mozambique, Tanzania, Mali and Uganda. Moreover, a new wave of environmental legislation introduced stricter regulation and impact assessment requirements.
While prevailing legal frameworks offered some opportunities to promote accountability, it could also undermine these pathways. The following examples identify gaps in legal texts and failures in implementation.
Insecure Local Land Rights
Who controls the land is a critical aspect of the law regulating land deals. Despite the range of national legal frameworks, a recurring issue is the fact that central governments control all or most land. For example, land is nationalised in Ethiopia and Mozambique. Some countries do recognise private land ownership (e.g. Mali, Cameroon), but this remains uncommon due to inaccessible land registration procedures.
In practice, customary tenure is the dominant mode through which rural citizens access land in all the case countries. But customary rights are often not properly protected by national law – and even where they are, they are rarely recognised as constituting land ownership. One exception to state land ownership can be evidenced in Ghana, where 80% of the land is vested in traditional authorities, families, and individuals.
Some legal concepts contribute to undermine the security of local land rights in the face of incoming investment. Legal protection is often subject to demonstrable ‘productive use’ of the land. In these cases, land management institutions may be mandated to monitor productive use, and to reallocate land to third parties when it’s not used. Also, in virtually all countries there exists a legal concept of ‘public purpose’ which enables the expropriation of privately held land rights for projects in the public interest. Public purpose is usually poorly defined, and as a result can sometimes explicitly include commercial projects.
Roles and responsibilities of local leaders
Where control over land is in the hands of local leaders, rather than the central governments, local participation and transparency are not necessarily stronger. Many chiefs have appropriated lands for personal use, and rented or sold it to outsiders for personal gain. Also, chiefs may come under pressure from state authorities to make land available to investors, as has been documented in Zambia. Finally, several states have brought in requirements for large land allocations to be approved at the national level. A trend may be underway toward a recentralisation of land governance.
For a long time, land legislation tended not to directly tackle gender issues. However, some laws adopted since the 1990s have paid greater attention to gender equity. Judicial decisions have also played an important role in determining women’s land rights, particularly by invalidating discriminatory norms on constitutional grounds. In many countries, the implementation of laws protecting women’s rights is constrained by entrenched cultural practices, lack of legal awareness, limited access to courts and a lack of resources.
Promotion of Investment under National Law:
Since the early 1990s, there has been a profound shift in the roles of government and the private sector in development paradigms, with governments increasingly looking to private investment to play a critical role in the promotion of economic development. Many African countries have adopted law reforms to attract foreign investment.
Transparency and Safeguards in Land Deals:
Most land deals have been negotiated behind a veil of secrecy. There are few requirements on investors or even states for transparency of land deals, and freedom of information rights are limited in many countries. Only six African countries have passed national freedom of information laws that would enable citizens to gain access to information held by government agencies (Angola, Ethiopia, Liberia, South Africa, Uganda and Zimbabwe.) Liberia is the only country that has legislation explicitly requiring public disclosure of contracts once the deals are approved by parliament.
Another important safeguard relates to legal recourse to challenge the legality of decisions that have been taken. For example, in Ghana aggrieved persons can seek a judicial review of the issuance of environmental permits, of leasehold titles, and of misconduct by customary chiefs. In Tanzania, the Village Land Act of 1999 provides that complainants may take disputes e.g. on compensation amounts to the Ward Tribunal, District Land and Housing Tribunal and to the Land Division of the High Court.
Environmental and social impact assessment requirements aim to provide a safeguard in the process of land allocation for a large-scale investment, and to ensure that risks are identified and mitigated. Many recent national laws on environmental protection include impact assessment requirements (e.g. Mali, Cameroon, Ghana). But the scope of these requirements, as it applies to land deals for agriculture, are often unclear.
International Law and Standards:
International legal frameworks governing investment and human rights have evolved substantially in recent decades. However, they have been progressing at diverging speeds, resulting in different levels of protection for investors and for people affected by the investments. There has also been growing use of international and regional human rights institutions in relation to land rights issues, albeit to date without direct relevance to the land rush.
The national law of the investor’s home country may also play a role in regulating land deals in Africa, for instance where third countries claim extraterritorial jurisdiction in certain matters and open the door to the possibility of transnational litigation. ‘Transnational litigation seeks to use the law of the company’s home state to hold the company liable for compensation for activities undertaken overseas’. This may enable people affected by large land deals to by-pass the limited independence of courts in the host country, to get higher damages awarded, and to obtain judgments that are easier to enforce against companies. But it is easy to overestimate the significance of transnational litigation.
Actors and Institutions Who Engage in Citizen Action:
Strategies and Mechanisms to Pursue Accountability:
Citizen Action & The Collapse of Land Deals:
The linkages between citizen action and the cancellation of deals are often unclear. Many deals reported in the media over the past few years have collapsed due to changed world economic circumstances, financing difficulties and greater-than-expected challenges on the ground. The cancellation of a land deal can be as non-transparent as the signing of one.
The cancellation of deals was documented in Madagascar and Mozambique. This may be a direct result of the heightened global concern, and the engagement of activist networks that may have inspired governments some caution with regards to their promotion of land investment. However, the cancellation of projects may not be in response to pressure exercised by citizen action. In Madagascar, for example, where two of the most publicised social movements against large scale land acquisitions took place, researchers have suggested that a slowing down of land investment rates may also be explained by unfavourable global economic contexts.
Citizen Action & Renegotiation of Land Deals:
In three cases (Ghana, Ethiopia, and Tanzania) there were indications that a renegotiation of terms with investors took place, but precise outcomes were not always documented. Nor is there documentation of the levels of satisfaction from residents with the new terms. However, in all three cases, it was suggested that the renegotiation was a positive step, but fell short of meeting all citizen demands, and was at best only a partial success.
Barriers to Citizen Mobilization:
It should not be suggested that citizens always manage to mobilise. A lack of effective mobilisation may be rooted in low levels of local organisation, weak local knowledge of rights, lack of understanding of relevant authority, or weak capacity to formulate demands. But the review indicates that, where mobilisation occurs, efforts to hold decision-makers to account have tended to target national or local governments or customary authorities – the entities responsible for land allocations – more than the companies that acquired the land. This contrasts with the emphasis in international debates on holding ‘land grabbers’ to account.
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