Expert Group Meeting on Secure Land Tenure: New Legal Frameworks and Tools

UN-Gigiri, Nairobi, Kenya, 10–12 November 2004

The participants of the Expert Group Meeting in Nairobi. In the first row, starting fourth from the left and continuing to the right: Clarissa Augustinus (chief Land Tenure Section UN-HABITAT), Paul van der Molen (chairman of Commission 7, ‘Cadastre and Land Management of the International Federation of Surveyors), Daniel Biau (deputy executive director of UN-HABITAT), Hon. J. Orwa Ojode (Assistant Minister for Lands and Settlement in Kenya) and Ibrahim Njiru Mwathane (president of the Institute of Surveyors of Kenya).

The subject of this Expert Group Meeting was the improvement of land tenure security through new legal frameworks and new and better tools. New land laws have recently come into power, others are under development. What kind of tools do we need to adequately support the spirit and letter of these new legal frameworks? What are the innovative ideas about information systems and work processes? How can we improve existing land administration systems?

Thus, the aim of the meeting was to:

• discuss new legal frameworks for the improvement of land tenure security
• discuss new ideas about tools that may support the implementation of these new legal frameworks
• discuss evolutionary approaches for recording and mapping land tenure forms
• discuss possibilities to improve existing land administration systems
• learn from other countries that face the same challenges
• summarise the experiences and ideas in the form of a booklet that will be widely distributed
• develop a research agenda for a network of research institutes in the region
• encourage decision makers to pay adequate attention to the implementation aspects of land policy.

A group of about 60 experts – social scientists, anthropologists, lawyers and surveyors – discussed these issues in Nairobi. The meeting was organised by the FIG Commission 7, Cadastre and Land Management, UN-HABITAT, the Institution of Surveyors of Kenya (ISK) and the Commonwealth Association of Surveying and Land Economy, with support from the Austrian Development Agency, the Netherlands Ministry of Foreign Affairs, the German Technical Co-operation (GTZ) and the Netherlands Cadastre, Land Registry and Mapping Agency.

During the meeting some observations regarding various forms of land tenure were made. First of all it could be concluded that countries in Africa are indeed innovative in finding appropriate forms of land tenure that aim at meeting local needs.

In general, there is an understanding that informal forms of land delivery are effective in cases where formal land delivery simply does not work. The question, whether the poor can benefit from either formal or informal land delivery processes, has been answered quite disappointingly: the poor do not benefit. Their only chance is plot sharing with parents and plot ownership through inheritance.

The combination of formal land delivery processes and customary approaches is identified as a neo-customary land delivery process, which seems to be a good alternative to formal processes, although the viability in the long term has been questioned because of the unclear compatibility within formal land policies.

Conclusions

Firstly, it has become clear that regarding rights to land, registration and cadastre, and technology, all options are open: nothing should remain unexplored for the sake of identifying innovative approaches to meeting the demands of the people. This includes informal land delivery mechanisms, although it has been recognised that these systems have weak aspects, which possibly should be repaired. It is remarkable that many countries embark on an evolutionary approach to providing land tenure security (Ethiopia, Namibia, Rwanda, Lesotho, Indonesia). Further, presentations at the meeting revealed the importance of inclusion of so-called derived rights in the process of land delivery (water rights, grazing and pastoral rights). Experience in Kenya and Uganda shows the attention that should be paid to implementation effects of new land laws, both in an institutional and operational way. With regard to financial issues, there are good examples of using a sensible form of land tax for the funding of land reform and upgrading programmes. In many presentations, technology (orthophotos, satellite images, GPS) was reported to provide a good base for operations; however, some fundamental conditions should be met in order to materialise the benefits and enjoy return on investments. The help of universities is indispensable. Good performance of universities is enhanced if they combine education with research and consultancy. This provides appropriate knowledge for advice that meets real-world conditions. The same applies to the ICT industry: developing standards has been reported to be necessary in order to provide, for example, software packages that can easily be customised to local needs. Re-inventing the wheel can be avoided in this way. Finally, the presentations show the importance of understanding the dynamics of land administration systems, with respect to coping with evolving forms of land tenure and maintenance issues. Systems should therefore be flexible and scalable to reap the benefits of investments.

The Expert Group Meeting has provided – in our view – much material on innovative legal frameworks and technological tools to contribute adequately to the debate in countries that struggle with the difficult questions of improving land tenure security within a socially acceptable context and at affordable costs.

Paul van der Molen
Christiaan Lemmen
FIG Commission 7