January 30, 2015 By Sonkita Conteh, Director, Namati
Land is important for many reasons. It is the source of livelihood for individuals and an economic asset for nations. It is also a driver of conflict. In organised societies, rules have either evolved or been adopted to define how individuals, groups and institutions relate to land. Over time, these rules may not adequately address this sometimes complex web of relationships and may require changing. Since the turn of the millennium, many developing countries have undertaken land reform with ostensibly benign objectives such as alleviating rural poverty or eradicating food insecurity. In reality some of these efforts have been smokescreens for large-scale land dispossession by a powerful minority. As far back as the 1980s there had been calls to reform Sierra Leone’s dual land tenure system. Not until 2005 was any significant attempt made to lay out a framework for comprehensive national land reform. For Sierra Leone, the advantages of a genuine tenure overhaul could be immense, especially in the face of recent developments such as large-scale land acquisitions by corporations. Rural lands could assume their true economic value with real control in the hands of the people. Land transactions could be simplified and tensions between the country’s customary and English land rules alleviated. The knock-on effect on rural poverty and food insecurity could be very positive.
This article and subsequent writings will discuss the major changes proposed by the draft National Land Policy 2014 – a document expected to revolutionise land ownership, use and management in Sierra Leone. The aim is to interrogate whether its provisions are far-reaching enough and relevant to the daily realities of ordinary life. The current piece will examine four big picture changes proposed by the policy. Subsequent articles will discuss the policy in relation to specific themes such as women’s land rights, large-scale land acquisition and food security. The objective of this running series is to inform and motivate discussions of the policy content with a view to generating suggestions for improvement. The Open Society Initiative for West Africa is supporting this series and broader land reform policy dialogue in Sierra Leone and Liberia, two countries embarking on ambitious land reform efforts.
“The current situation in the land sector is not only chaotic, but also becoming increasingly unsustainable”. This is how the draft policy describes the scale of the land problem in Sierra Leone. A few real life situations could better illustrate this point: In Kono, Eastern Sierra Leone, a paramount chief is at loggerheads with dozens of landowning families after he sold off over two thousand acres of their farmland to a Chinese rubber company without their consent. The company has installed huge concrete markers on the land, destroying crops in the process, and landowners have been prevented from using the land. Last year, ayoung businesswoman who purchased a plot of land from a respectable gentleman at Goderich in Freetown was chased out of the property by a machete-wielding mob when she went with workers to construct a zinc structure for her caretaker. The land is being claimed by another person who reportedly bought it from someone else. A dual US/Sierra Leone national planning to “invest back home” was allotted four plots of state land by the government under a lease. During his visit early last year he discovered that half of his allocation had been “mistakenly” leased to someone else. He quickly agreed to keep the remainder after he was told by officials that he could be assigned the full four plots elsewhere at some future date. During a BBC Media debate in Freetown on the constitutional review process, an old man disclosed that a land conflict he took to court had lasted 30 years without a final decision. Others had similar stories of land cases still unresolved after 5 or 10 years in court.
These cases illustrate the multi-dimensional nature of the national land challenge which the policy breaks down to include problems such as inequitable access to land, corruption, insecure tenure, “land grabbing” in the commercial sector, and weak land management and data systems. How the draft policy proposes to address the shortcomings of the current system is a matter of national interest.
The policy hopes to create a just land tenure system which will “ensure equitable access to land for all citizens and stimulate investment for the nation’s development”. For starters, the policy acknowledges that sovereign title to land belongs to the people from whom the government derives its authority and calls for a constitutional recognition of this basic principle. Additional proposed changes in the draft policy include:
3.1 A new system that registers title to land
The policy observes that “nine out of ten land cases in the high court involve claims and counter claims for title to land”. It puts the blame for this squarely on the current system of deeds registration which allows for a multiplicity of deeds to be registered for a single piece of land. Rogues have had a field day exploiting this weakness in the system causing anguish to unsuspecting victims and clogging the courts with suits.
To better protect ownership rights and give certainty to land transactions the policy will replace the current system of deed registration with a land title registration system. This new system will apply nationally, and will include land held under customary tenure and cover all types of rights that exist. The change will resonate positively with the public as many have in the past called for the current system to be scrapped.
While the new system would improve protection of property rights for ordinary folks (like the young businesswoman), its implementation may adversely affect the poor and uninformed. Registration of title according to the policy would be governed by the “first in time, first in right” principle (“earlier registered rights will be superior to later registered rights”) and would favour a bona fide purchaser over an original owner. Lack of resources and access to information may prevent many genuine owners, particularly those in rural areas, from being able to register immediately. Well-off and well-informed crooks stand a good chance of dispossessing legitimate owners of their rights under the proposed system. Additionally, these English principles of real property may cause genuine hardship when strictly applied to land under customary tenure. The policy does acknowledge the “complexity” of title registration under customary law and proposes a sort of combination of customary rules and general law principles. However, it does not indicate how that combination would be derived or applied in practice.
Practicable customary rules should govern land title registration in rural areas unless their application would result in discrimination or some other rights violation. Generally there should be provision to challenge earlier registered titles.
3.2 Removal of native/non-native distinction
The policy proposes wholesale review of the country’s land laws – some of which have generated controversy nationally. In particular it targets the Provinces Land Act Cap 122, which has been criticised for fostering discrimination against “non-native” citizens in accessing land in rural areas. The law provides that a non-native cannot acquire more than a 50-year leasehold interest in land in the provinces. A non-native is defined as “any person who is not entitled by customary law to rights in land in the provinces” and covers citizens of Sierra Leone who do not belong to any of the indigenous tribes. This legal provision has long been criticised as discriminatory against Creoles and other non-ethnic citizens of the country. There is no legal limitation on the interest “native” citizens can hold in land outside the provinces. The policy therefore directs that Cap 122 be amended to remove this “discriminatory distinction”.
While this looks great on paper, it nonetheless throws up complications which the policy has not addressed and which may affect implementation. First, it should be noted that the policy does not create a single tenure system. Both customary and English tenures would continue side by side with some overlap. Second, rules governing acquisition and disposal of land are markedly different for both systems. The policy does not lay out what new or greater interest in provincial land non-native citizens may expect to hold. This omission is likely to lead to uncertainties and incorrect assumptions during land transactions. Even with the present limitation, there have been many misguided provincial land deals which purported to transfer “freehold ownership” of customary land from natives to non-natives through conveyances. This erroneous practice occurs mostly in the big towns and cities in the provinces. By clarifying the interest non-native citizens would now be able to acquire in rural lands, the policy would have addressed a major area of tension between customary and English land rules.
3.3 Creation of community-led land bank for investment
One of the goals of the policy is to “stimulate investment for the nation’s development”. To this end, it urges government agencies to create an environment that attracts foreign and domestic investments by, for instance, “removing bureaucratic inefficiencies and corruption in land institutions”. The policy notes that the amount of land government owns and which it could avail to investors, particularly in the provinces, is limited. It therefore proposes systematically setting aside land for large scale investment. This process, the policy stipulates, would be community-led with support from the government.
In many places land banks have gained notoriety as vehicles for dispossessing land owners particularly in rural areas where land is assumed to be plentiful and idle. This fact may have influenced the policy framers’ decision to accept a civil society proposal to make communities the drivers of this new move. While the emphasis on community control is reassuring, the policy needs to provide more detail about the scope and mechanics of the land banking process and the nature of the “support” from government. Already some communities have had very testy relationships with land investors, and government’s perceived investor-leaning stance in some of these conflicts has generated suspicion. A more specific framework is required to inspire confidence in the proposed new arrangement. For instance, the policy could set out that families and communities have a right to refuse to set land aside for the proposed land bank.
3.4 New land management structures
The policy pulls no punches setting out the ills of the current land management system. It blames inadequate capacity within the Ministry of Lands for the confused state of the current land administration system. It proposes the creation of new multi-function institutions at national, district, chiefdom and village levels to oversee land management across the country. The Ministry’s new role would be largely policy oversight.
A new national land commission would perform all operational functions that the Ministry of Lands currently undertakes, in addition to administering all state/government land, setting up the new title registration system and assisting with the establishment of land tribunals. The commission would have district-level branches whose core members would be drawn from district land sector representatives and civil society. The majority of the members would, according to the policy, be elected.
Perhaps the most striking land management revolution of the policy is the introduction of chiefdom and village land committees. Chiefdom land committees would now replace chiefdom councils in land administration. Members of both committees would be elected “primarily from land owners within the chiefdom or village” following criteria that respect gender and ethnic diversity. Under the current system paramount chiefs have exercised enormous amounts of power over provincial land, sometimes side-lining the chiefdom councils and with little or no consultation of land owners. Many of the problems of large-scale land deals in the country today can be traced to this. This shift in the balance of power would be good news for landowners.
While this new arrangement looks promising, there are several missing pieces. First, the policy does not indicate how the national land commission would be constituted. Second, it does not set out how the non-core members of the district land commission would be elected. Finally, though the policy acknowledges that sovereign title to land vests in the people, it appears in various sections, to inconsistently confer radical title to land in administrative institutions. For example, it vests radical title to communal land in the chiefdom land committee instead of the community itself. It is important that radical title remains with the people even if administrative responsibility is placed within institutions.
On the whole, the draft land policy stands out as one of the most significant law reform proposals in the history of Sierra Leone. With the scale of the land problem now reaching crisis point and the added complication of large-scale land deals in rural areas, the land question can no longer be safely ignored. As the policy makes its way to cabinet and is eventually transformed into legislation, both state and non-state actors must continue to engage the public in discussions aimed at improving its substance.
At the moment, a major concern being expressed is whether the great provisions in the draft policy will ever become reality. Over the years Sierra Leone has enacted groundbreaking legislation in many areas including legal aid, criminal justice and intellectual property protection, but implementation of those progressive laws never took off or is seriously delayed. Many feel the same fate could befall the land reform process. The proposal to shift land management duties to new entities is already causing disquiet in some quarters. It is therefore plausible to expect some resistance to the changes being proposed. The public must however continue to demand the change that the draft National Land Policy embodies and ensure that it happens on the ground.