Land Reform and Rural Transformation in SADC

Policy Spotlight: Land Governance and Restitution in SADC

Some governments, like Angola and Mozambique, have applied a state-led model by transferring all land ownership rights to the state and maintaining a communal or leasehold system in order to enable redistribution and developmental access to land. But the need for private investment, mostly foreign, has forced them to implement a mixed system by introducing selective freehold land ownership. Other countries that implemented freehold land ownership in the post-colonial period, like South Africa, have had to contend with sustained or rising inequality caused by the legacy of colonial dispossession of land. This has pressured them to implement a mixed system by maintaining or supporting communal land ownership, in order to enable redistribution and improve access to land. As a result, many SADC countries maintain a mixed system of land governance, with both traditional (communal or leasehold) and modern (freehold) land rights.

These policies have resulted in sustained inequality and poverty in urban areas, where freehold property rights are predominant. Limited economic opportunities sustain inequality and poverty in rural areas, where traditional land rights are predominant. The influence of competition between governments and traditional authorities over rural land allocation and development has resulted in limited redistribution of land and constrained rural transformation. The process of transforming rural communities by introducing alternative livelihoods has been slow in SADC, which undermines economic diversification at a national and regional level. SADC rural transformation requires transforming ownership and the usage of rural resources to meet basic human needs, and attracting private investment to enable alternative livelihoods.

The 16 SADC member states have diverse political, social, cultural and economic histories which provide for varying contemporary development trajectories accompanied with context-based socioeconomic opportunities for development^[47]. With a few recent exceptions, most SADC countries’ post-colonial development trajectories have been distinguished by political and social stability, and sustainable economic growth, which enabled the development of social welfare. However, SADC economies have experienced limited diversification due to slow rural transformation and mixed, limited land reform. Therefore, concerted improvements in land reform are required for structural economic transformation in SADC.

Approximately 70.0% of SADC’s population’s livelihoods depend on farming and land-related activities, primarily from household subsistence farming^[48]. Droughts and water-shortages have affected agricultural production, increasing dependence on food imports. Agriculture contributed an average of 8.8% of GDP in all SADC member states in 2016^[49]. Mining and utilities contributed an average of 15.1% of GDP for all SADC countries. As a result, the primary sector contributes approximately 23.9%. Illustrating the need for economic diversification and redistribution. But this requires the appropriate policies to reform land governance and enable economic development and redistribution of income.

SADC member states have been developing a regional approach to addressing land reform issues through the Land Reform Support Facility^[50]. This was justified by the potential impact of land issues on regional peace and security, as well as socioeconomic development. The approach recognises the sensitivity and required national specificity for land issues in the region, involving various consultations with both state and non-state actors such as multi-national corporations and non-governmental organisations^[51]. Although active steps taken by SADC have been informational, directional and necessary, the developmental process of land policy has been slow, yielding small-scale results. Transformation and implementation in the SADC region have not been uniform, however, the result has been the same, in that, most SADC countries now maintain a mixed system of free holding and traditional land rights.

Free Holding and Traditional Property Rights: The Case of South Africa

In South Africa, the development and advancement of industry and the services sectors contributes to the process of economic diversification. The primary sector – agriculture and mining – contributed 11.1% of GDP in 2016, suggesting that the issue of economic diversification is not as severe as the SADC average, but rather, the issue of redistribution remains a problem^[52]. As a developmental response, post-Apartheid governments enacted the Restitution of Land Rights Act (RLRA) 22 of 1994, which was the first attempt to address the land and agrarian question. However, land reform and agriculture-driven rural transformation has largely failed in South Africa due to legal constraints. The RLRA established the Land Claims Court to deal with restitution of land and enabled the government to expropriate privately held land if it was previously dispossessed. But the RLRA and the Constitution of the Republic of South Africa, requires government to provide compensation as agreed to by those affected, or decided and approved by a court^[53]. This has resulted in slow adjudication of land claims and the escalation of land restitution costs^[54].

Land reform and restitution has made little progress and achieved mixed results at best. Both public and private interventions have seldom produced the intended outcomes. This is particularly applicable in the case of high productivity and large-scale land restitution, diversifying rural economies and livelihoods, providing public services and effectively addressing the historical legacies of racial segregation, gender biases and inequality.

Expropriation was never seen as a viable option, so the government chose to negotiate settlements taking a ‘willing buyer, willing seller’ approach, even though it is not required according to legislation^[55]. This approach protects private property owners and reinforces the current distribution of power and land. Landowners who do not wish to part with huge tracts of fertile and productive land are protected, even if the land was previously dispossessed from black people during Apartheid. As a result, the implementation of policies has largely reinforced barriers to land access, which is a major obstacle to the socioeconomic development of South Africans, particularly in rural areas and in the case of large-scale, land-based production. However, the ANC-led government has taken a decision to review the Constitution, to allow for expropriation without compensation in order to enable redistribution and reduce inequality and poverty.

Lease Hold and Traditional Property Rights to Free Holding: Angola and Mozambique

At the end of Mozambique’s 17-year long war in 1992, the government initiated a land policy review which led to a new National Land Policy in September 1995. The policy subsequently led to a new Land Law in 1997, implementing further regulations in 1998^[56]. The 1997 Land Law aimed to achieve a balance between safeguarding the interests of communities and facilitating investors’ access to land. The legislation sought to halt speculative land grabs that were leading to increased landlessness amongst the poor, by creating a right known as Direito de Uso e Aproveitamento dos Terras (DUATs). This right offers, secure, renewable and long-term user rights, up to a period of 50 years. However, it does not confer full land ownership. Essentially, the Land Law provides communities and local people with a secure title to land, while providing security to investors.

Similarly, Angola struggled to create a legal framework to address the complexities of land ownership since independence in 1975. In November 2004, the Lei da Terras was passed. This law aimed to harmonise state land, state concessionary land given to private individuals, and the traditional land-tenure system. The law delineated and expanded on the range of land rights available by concession and recognised some measure of traditional land rights. In 2006, the Angolan government proposed some additional regulations that were gazetted in 2007. These regulations specifically addressed the land-concession sections of the land law, and provided some detail on how land rights would be formalised. The regulations also expanded on the government’s authority to expropriate land. This is seen where expropriation is only legal by court order, and international standards and procedures apply in relation to informing, negotiating, and compensating affected parties.

In 2010, the government of Angola merged its poverty reduction strategy (Estrategia de Combate a Probeza) and its national food and nutritional security strategy (ENSAN). The ENSAN strives to improve the lives of Angolan citizens by securing quality food in quantity. This will be executed through local food production, by increasing the diversification of farming and fishing production in a sustainable way, so as to improve the supply of dietary requirements to the population^[57]. ENSAN makes provisions for restoring internal markets, and interconnection of surplus production and major consumption zones. These two prominent strategies have resulted in the Integrated Municipal Program for Rural Development and the Fight Against Poverty (PMIDRCP).

The PMIDRCP program focuses on reducing extreme poverty in rural Angola, promoting access to basic public services, and enabling social justice^[58]. The PMIDRCP is fundamentally done through the land transformation instituted by the Country Programming Framework (CPF). The key priorities of the program focus on the conservation and sustainable use of natural resources, by providing opportunities for Angolans to create alternative livelihoods within the state, specifically through the creation of mainstream land management practices to enable social justice. This is executed through fair access to land, and the provision of implements and resources, whilst taking heed of the conservation of the land. The CPF program is part of the Food and Agriculture Organisation (FAO), an Angolan field programme, which comprises of 22 on-going projects within the state^[59].

The CPF programme has been promoting the ‘Land Programme’ for the past ten years, to address the issue of land degradation and promote sustainable food and agriculture systems in Angola. One intervention, targeting the south-western provinces of Namibe, Huila and Benguela, was designed to mitigate the impact of the degradation processes and rehabilitate lands by mainstreaming locally adapted Sustainable Land Management technologies into agro-pastoral and agricultural development activities. These activities supported 3 000 smallholder agro-pastoralists via Farmer Field Schools. Accordingly, cooperation within Angola is enhanced through the partnership of FAO and the Community of Portuguese Language Countries (CPLP), coordinated through CPLP’s Executive Secretariat, Assembly and Council for Food and Nutrition Security.

Following a multi-sectoral approach, the initiative addressed issues such as good governance, inclusive mechanisms and coordination of food security institutions, and compliance with the human Right to Food. Action ensured linkages between regional, sub-regional and national initiatives, and knowledge exchange was encouraged through the promotion of South-South, North-South and triangular cooperation arrangements. In addition, individual projects strengthened stakeholders’ networks and helped set up National Food Security and Nutrition Councils, as well as parliamentarian fronts against hunger. The PMIDRCP has been positively accepted by the citizens of Angola, specifically those situated in the Namibe region. The programme has encouraged massive poverty alleviation, aided the diversity of agricultural goods and implemented strategies to educate the local people on commercial farming by FAO.

The Constitution of the Republic of Mozambique (1995), provides for land-use and benefit rights, also known as DUATs. All citizens of Mozambique have a fundamental right to access, and use of land^[60]. Apart from the 1995 Constitution, Mozambique passed the 1995 National Land Policy, which is still in effect to date. The Land Policy differentiates between securing local land rights acquired through customary occupation and securing investor rights, which aims at promoting new private investment^[61]. The Land Policy is considered to be a good basis for protecting the land rights of poor and vulnerable Mozambicans.

The Land Policy recognises land rights of communities and individuals as acquired by customary or long-term occupation, giving equal legal standing to customary land rights and state allocated DUATs^[62]. Land rights for women are further protected by constitutional provisions which focus on ensuring woman-headed households are not excluded from accessing traditional land rights, or excluded due to customary norms. Collective DUATs can be held by local communities, providing stronger protection to households whose rights were acquired through and managed by customary structures^[63]. Despite accessibility of land and land rights enabled through the Constitution and Land Policy, most Mozambicans do not have the necessary resources to productively exploit the available land.

The 1997 Mozambican Land Law tries to resolve the resource gap by providing mechanisms for investors to acquire rights in land where local rights already exist, even though the Law does not differentiate between communal and commercial land^[64]. This creates a synergy of rights and attracts private investment. This is done through community consultation between potential investors and communities occupying land to be developed. In principle, these agreements should ensure that local people gain economic and other benefits in return for ceding their rights to private investors. However, the Land Law has three fundamental challenges, including a lack of clarity. Government officials appear to interpret the law arbitrarily, which undermines the principal that ‘good faith occupation of the land’ confers legal property rights.

The second consequence is the lack of capacity. Whilst guidelines for community consultations exist, these are poorly disseminated and often misunderstood. It has been noted that neither communities nor the government has the capacity to guarantee proper community consultations prior to the granting of use rights to investors. And finally, the issue of allocating DUATs for free, which has encouraged extensive land grabs. The government has responded to this by suggestive reforms. The government states that it will be important to develop a low-cost process that secures the rights of local communities on a systematic basis, so as to enable it to negotiate effectively with outside investors. Furthermore, it is important to establish an improved incentive framework and start introducing land tax. Ultimately, the Mozambican government plans on conducting systematic reviews of all DUATs granted, to assess how much land has already been allocated through concessions, and which DUATs are in clear violation of development conditions. Where development conditions have been met, DUATs should be automatically revoked or sub-divided, in order for the DUAT holder to retain the portion in which he or she invested.

Subsequently, the Land Law has attracted prominent investors from companies such as the Obtala Limited Sawmill in Nampula, Mozambique. The forestry group has signed a Memorandum of Understanding with the minister of Land, Environment and Rural Development that will enable land development in the state, combat illegal logging and promote timber processing. Real estate giants such as Grit have invested in Mozambique through property development in the Maputo area. The land law has benefitted citizens with immense opportunities to acquire land through the establishment of DUAT rights. Citizens have regained land and created better livelihoods by deriving income from agriculture, and using the land to create alternative incomes. Moreover, the land law gives citizens the legal voice to fight against land grabs and gain access to resources.

Evidently, SADC member states have taken different approaches to land reform, even though the SADC Secretariat provides support to the member states through the Land Reform Support Facility. Despite the different approaches taken by SADC member states, the central problem of land reform and rural transformation is the same for all SADC countries. SADC countries are still grappling with administrative challenges or contradictions of reducing inequality and poverty through equitable land access, or recognising tradition land rights, whilst maintaining private property rights in order to attract investors.

Notably, Angola and Mozambique have beneficially created land rights for citizens and protected their states from invasive investors taking control of land resources. However, they face challenges involving unclear laws, which are difficult to implement due to lengthy processes and bureaucracy. The land reform policy in South Africa has also yet to be finalised, for various reasons such as technical difficulty in support, and at times, political interference. The question of land is currently controversial and contested in South Africa because of the issue of ‘expropriation without compensation’. There are concerns that the current land debate is flawed, with beliefs that the state will mismanage this resource once legislation regulating land affairs is enforced.

As a result, there is still considerable work that need to be done regarding land policy and development within the SADC region. The future of land transformation in SADC requires legal accountability, allocation of effective bureaucrats, and consultation of communities, policy analysts and respective state departments. An increasingly accessible and transparent process needs to be facilitated to assist the states that lack implementation capacity in their structures and institutions. Lastly, member-states should engage in extensive consultation processes with the SADC Land Reform Support Facility to create cohesive and context-based land policies and development within their states.

By Tafadzwa Mahubaba & Khabonina Masango

^[47] SADC 2017. The Union of Comoros Becomes the 16th SADC Member State, on the Southern African Development Community Website, viewed on 17 April, from http://www.sadc.int/; UNECA 2010. Land Policy in Africa: Southern Africa Regional Assessment, United Nations Economic Commission for Africa: Addis Ababa. Available At: https://www.uneca.org/ [Last Accessed: 15 April 2018].
^[48] SADC 2008. SADC Multi-country Agricultural Productivity Programme, Southern African Development Community: Gaborone. Available At: http://www.sadc.int/ [Last Accessed: 18 April 2018].
^[49] UNCTAD 2018. UNCTADStat Database, United Nations Conference on Trade and Development: Geneva. Available At: http://unctadstat.unctad.org/ [Last Accessed: 16 April 2018].
^[50] UNECA 2010. Land Policy in Africa: Southern Africa Regional Assessment, ibid.
^[51] UNECA 2010. Land Policy in Africa: Southern Africa Regional Assessment, ibid.
^[52] UNECA 2010. Land Policy in Africa: Southern Africa Regional Assessment, ibid.
^[53] GoZA 1994. Restitution of Land Rights Act 22 of 1994, Government of South Africa: Pretoria. Available At: http://www.justice.gov.za/ [Last Accessed: 4 February 2018]; GoZA 1996. Constitution of the Republic of South Africa, 1996, Government of South Africa: Pretoria. Available At: http://www.justice.gov.za/ [Last Accessed: 4 February 2018].
^[54] GoZA 2017. There’s No Willing Buyer, Willing Seller Principle on Our Constitution – Gugile Nkwinti, on the Parliament of South Africa Website, viewed on 10 February 2018, from https://www.parliament.gov.za/.
^[55] GoZA 2017. There’s No Willing Buyer, Willing Seller Principle on Our Constitution – Gugile Nkwinti, ibid.; PMG 2004. Willing Buyer, Willing Seller: Notes, Parliamentary Monitoring Group. Available At: http://pmg.org.za/ [Last Accessed: 2 February 2018].
^[56] SADC 2017. The Union of Comoros Becomes the 16th SADC Member State, ibid.; UNECA 2010. Land Policy in Africa: Southern Africa Regional Assessment, ibid.
^[57] RW 2009. Angola Government Designs National Strategy for Food Nutrition and Security, on the ReliefWeb Website, viewed on 17 April 2018, from https://reliefweb.int/.
^[58] UN 2014. National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21: Angola, United Nations: Washington, D.C. Available At: https://digitallibrary.un.org/ [Last Accessed: 1 May 2018].
^[59] FAO 2018. Angola & FAO: Partnering for Resilience and Sustainable Rural Development, Food and Agricultural Organisation: Luanda. Available at http://www.fao.org/ [Last Accessed: 17 April 2018].
^[60] Tanner, C. 2010. ‘Mozambique’, in Review of Land Reform in Southern Africa, K. Kleinbooi (ed.), University of the Western Cape: Cape Town, pp. 30-36. Available At: http://repository.uwc.ac.za/ [Last Accessed: 15 April 2018].
^[61] Tanner, C. 2010. ‘Mozambique’, ibid.
^[62] Tanner, C. 2010. ‘Mozambique’, ibid.
^[63] Tanner, C. 2010. ‘Mozambique’, ibid.
^[64] Lahiff, E. 2003. The Politics of Land Reform in Southern Africa, Institute of Development Studies: Sussex. Available At: https://www.ids.ac.uk/ [Last Accessed: 15 April 2018].

The May 2018 issue focuses on the different approaches to African land reform and rural transformation – What are the different approaches to land governance and land reform in SADC? what are the common colonial histories in SADC and how did the colonialists influence land governance in SADC? how have different governments in SADC approached land governance in the post-colonial period? what is different in the post-colonial period? The PESA Regional Integration Monitor, May 2018 examines these questions.

Land Reform and Rural Transformation in SADC

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