Legal Framework Memorandum - ETH Z · LEGAL FRAMEWORK MEMORANDUM I BEST PRACTICES IN COMMUNITY LAND...

Best Practices in Community Land Titling

Legal Framework Memorandum

BEST PRACTICES IN COMMUNITY LAND TITLING – LEGAL FRAMEWORK MEMORANDUM Copyright © International Development Law Organization 2010 International Development Law Organization (IDLO)

IDLO is an intergovernmental organization that promotes legal, regulatory and institutional reform to advance economic and social development in transitional and developing countries. Founded in 1983 and one of the leaders in rule of law assistance, IDLO's comprehensive approach achieves enduring results by mobilizing stakeholders at all levels of society to drive institutional change. Because IDLO wields no political agenda and has deep expertise in different legal systems and emerging global issues, people and interest groups of diverse backgrounds trust IDLO. It has direct access to government leaders, institutions and multilateral organizations in developing countries, including lawyers, jurists, policymakers, advocates, academics and civil society representatives. IDLO conducts timely, focused and comprehensive research in areas related to sustainable development in the legal, regulatory, and justice sectors. Through such research, IDLO seeks to contribute to existing Practice and scholarship on priority legal issues, and to serve as a conduit for the global exchange of ideas, best practices and lessons learned. IDLO produces a variety of professional legal tools covering interdisciplinary thematic and regional issues; these include book series, country studies, research reports, policy papers, training handbooks, glossaries and benchbooks. Research for these publications is conducted independently with the support of its country offices and in cooperation with international and national partner organizations.

Disclaimer

IDLO is an inter-governmental organization and its publications are intended to expand legal knowledge, disseminate diverse viewpoints and spark discussion on issues related to law and development. The views expressed in this publication are the views of the authors and do not necessarily reflect the views or policies of IDLO or its Member States. IDLO does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of its use. IDLO welcomes any feedback or comments regarding the information contained in the publication. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. Formal permission is required for all such uses. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization. Cover image: © Rachael Knight Author: Rachael Knight, Project Manager, Best Practices in Community Land Titling Published by: International Development Law Organization Viale Vaticano, 106 00165 Rome, Italy Tel: +39 06 4040 3200 Fax: +39 06 4040 3232 Email: [email protected] www.idlo.int

About the program

To investigate how best to support community land titling efforts and protect the rights of vulnerable groups within the context of decentralized land management and administration, IDLO is implementing a two-year “Community Land Titling Initiative” in Liberia, Mozambique and Uganda. The data gathered is expected to inform policy dialogue, assist nations to refine and improve the implementation of existing community land titling laws, and provide useful insights for countries seeking to develop laws and policies for community land titling and registration. Partnerships

This program is being implemented by the IDLO Unit for Research, Policy and Strategic Initiatives in partnership with local NGOs in Mozambique, Liberia and Uganda: Mozambique LexTerra (www.lexterra.co.mz)

LexTerra is a private legal consulting firm specializing in community land rights and investments, whose mandate is to provide high quality consulting services on land and natural resource policy and legislation to government and NGOs, and to support communities and investors in making mutually beneficial land-sharing agreements according to the Land Law’s mandates. It is led by a highly qualified attorney who specializes in land tenure law and has amongst its staff a biologist with over ten years experience leading communities through community land titling exercises. Liberia The Sustainable Development Institute (SDI) (www.sdiliberia.org)

The SDI works to transform decision-making processes in relation to natural resources and to promote equity in the sharing of benefits derived from natural resource management in Liberia. The organization's vision is a Liberia in which natural resource management is guided by the principles of sustainability and good governance and benefits all Liberians. Its activities cover a range of crosscutting issues including governance and management, environment, state and corporate social responsibility, economic and social justice for rural populations and the democratic participation of ordinary people in government management of natural resources. The organization received the Goldman Environmental Prize (the world's largest prize honouring grassroots environmentalists for outstanding environmental achievements) in 2006.

Uganda The Land and Equity Movement in Uganda (LEMU) (www.land-in-uganda.org)

The LEMU aims to unite the efforts of local people, government, civil society organizations, students, elders, volunteers, and others to improve the land rights and tenure security of the poor. LEMU works to ensure that policies, laws and structures are put in place to allow all Ugandans to have fair and profitable access to land. To this end, LEMU undertakes research, policy analysis, and grassroots legal advocacy. LEMU serves as a link between government and communities: it educates rural communities about their rights, roles, and responsibilities under Uganda’s Land Act, while simultaneously working to help government and policy makers understand rural communities’ experiences of land tenure insecurity.

Donor Support

This research is being supported by the Bill and Melinda Gates Foundation (www.gatesfoundation.org) as part of IDLO’s broader research program: Supporting the Legal Empowerment of the Poor for Development.

Table of Contents

1. Mozambique: Land Law (1997) .............................................................................. 1 1.1 Overview........................................................................................................ 1 1.2 Constitutional basis ......................................................................................... 2 1.3 Types of land tenure ........................................................................................ 2

1.3.1 Community land rights acquired in accordance with customary norms............... 3 1.3.2 Individual and family land rights acquired through good faith occupancy ........... 5 1.3.3 Individual or corporate land rights acquired by formal application ..................... 5

1.4 Management and administration of community lands............................................ 6 1.5 Consultations and community-investor partnerships............................................. 8 1.6 The rights of women and other vulnerable groups ...............................................10

2. Uganda: Land Act (1998).....................................................................................11 2.1 Overview.......................................................................................................11 2.2 Constitutional basis ........................................................................................12 2.3 Types of land tenure in Uganda ........................................................................12 2.4 Land administration and conflict resolution.........................................................12

2.4.1 Land administration bodies.........................................................................12 2.4.2 Conflict resolution .....................................................................................13

2.5 Customary land rights: documenting individual, family and group claims ...............14 2.5.1 Certificate of Customary Ownership (CCO) ...................................................14 2.5.2 Application for freehold title for customary lands ...........................................15

2.6 Communal Land Associations ...........................................................................16 2.6.1 Formation of a Communal Land Association ..................................................16 2.6.2 Creation of a constitution ...........................................................................17 2.6.3 Incorporation of the CLA ............................................................................18 2.6.4 Use and management of common land ........................................................18 2.6.5 Rights and duties of community members using a CLA’s common lands............19 2.6.6 Disputes and conflict resolution mechanisms pertaining to CLAs ......................19 2.6.7 Dissolution of a CLA ..................................................................................20 2.6.8 Allowing for individual secession from the CLA ..............................................20

2.7 The land rights of women and other vulnerable groups ........................................20 3. Legal framework: Liberia .....................................................................................21

3.1 Overview.......................................................................................................21 3.2 The constitutional framework ...........................................................................22 3.3 The status of customary land rights in Liberia.....................................................22 3.4 Purchasing public lands under the Public Lands Law (1972-1973)..........................24

3.4.1 Purchasing public lands..............................................................................24 3.4.2 Local land administration ...........................................................................25 3.4.3 Leasing of public lands...............................................................................26

3.5 Forest management and administration.............................................................26 Annex I: Extracts of relevant Mozambican legislation...................................................28

1. Land Law (1997)..............................................................................................28 2. Land Law Regulations, Decree 66/98, 8th of December .........................................31 3. Technical Annex to the Land Law Regulations.......................................................36

Annex II: Extracts of relevant Ugandan legislation ......................................................43 1. Land Act (1998) (Ch 227) .................................................................................43

Annex III: Extracts of relevant Liberian legislation ......................................................70 1. The Hinterland Law of 1949 ...............................................................................70 2. Aborigines Law; Title 1, Liberian Code of Law, 1956 (Extracts) ...............................73 3. Public Lands Law (Extracts pertinent to customary lands) ......................................73 4. National Forestry Reform Law, 2006 ...................................................................74

Annex IV: World Bank survey findings in Liberia .........................................................81

LEGAL FRAMEWORK MEMORANDUM

I

BEST PRACTICES IN COMMUNITY LAND TITLING THE RELEVANT LEGAL FRAMEWORKS OF MOZAMBIQUE, UGANDA AND LIBERIA

Executive Summary

This document provides an overview of the relevant legal frameworks that the Community Land Titling Initiative will implement and rely upon for the fulfillment of project activities. The document also includes, as annexes, the full text of all relevant sections of these laws.


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1. Mozambique: Land Law (1997) 1.1 Overview In preparation for the drafting of Mozambique’s Lei de Terras (1997) (the Land Law), extensive sociological and anthropological research was conducted. Researchers found that:

Customary governance structures managed over 90 percent of all land access and use in Mozambique;

Customary leaders were adept at resolving intra- and inter-village post-war land conflicts;

Mozambique’s many ethnic groups employed widely divergent customary practices;

Communities’ primary source of tenure insecurity stemmed from outsider encroachment as opposed to internal conflict.1

The resulting law largely encompassed these findings by firmly establishing communities’ customary rights over lands and providing a model for investor land use that protects such rights. Most importantly, the Land Law (1997) automatically grants de jure land title to individuals and communities living on land according to customary claims, as well as to individuals and groups living on land in good faith for ten years or more.2 These customary rights are secure, heritable, and can be transferred to third parties either within or outside of the community. While such rights do not need to be formally registered, if communities choose to do so, the law sets out mechanisms through which customary claims can be mapped and entered into the national cadastre. The law also explicitly recognizes women’s right to own land and safeguards rights of way and public interest servitudes for on-going community use. The law also establishes a model for rural investment and development that protects community land rights whereby investors must consult with and seek the permission of the communities whose land they have petitioned the state to use. Communities (which are granted legal personality under the law) are then encouraged to negotiate with investors for “mutual benefits” agreements in exchange for the use of their lands.3 The Land Law (1997) hence represents significant progress in terms of safeguarding the rights of the rural poor: customary land rights are incorporated into the statutory framework, the government has less scope for dispossessing communities of their land, and investment is facilitated in a way that protects rural livelihoods.4 The law fails, however, to deal with certain key issues. Principally, it is lacking in oversight mechanisms to guard against injustices occurring at the community level. The law and accompanying regulations contain no specific measures to help women enforce or protect their land rights, prescribe no penalties for discriminatory practices, and establish no rules to protect the poor from unconscionable land sales. Further, although communities must approve an investor’s application for rights of use and benefit over communally-held lands, there are no mechanisms to ensure that investors fulfil any benefit-sharing agreements that they enter into with communities.

1 C Tanner, Law Making in an African Context: the 1997 Mozambican Land Law, FAO Legal Papers Online No. 26 (2002) at 23-24. 2 Lawmakers adopted a pre-colonial model of land holding; they started from the premise that all land was already claimed by indigenous African communities according to historical tribal boundaries. The outcome was that the law considers all land to be held a priori by a community, regardless of whether a Portuguese settler farm or plantation, international investor, or state cooperative had once occupied it. 3 Lei de Terras (No. 19/97 of 1 October) 1997, Article 24, 25, inferred. 4 A J Calengo, J O Monteiro & C Tanner, Mozambique Land and Natural Resources Policy Assessment, Final Report, Centre for Juridical and Judicial Training, Ministry of Justice (2007) 15.


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Defining the Community

The law defines a local community as: “a grouping of families and individuals, living in a territorial area that is at the level of a locality or smaller, which seeks to safeguard their common interests” (Land Law 1997 Article 1, section 1). Under this wide definition, a community may be a traditional unit based on clans or chieftainships, extended families, or simply a group of neighbours. Community interests in land may include “areas for habitation or agriculture, whether cultivated or lying fallow, forests, places of cultural importance, pastures, water sources and areas for expansion” (Land Law 1997 Article 1, section 1).

1.2 Constitutional basis The Constitution of Mozambique (1992) provides that while “all ownership of land is vested in the State and cannot be sold, mortgaged, or otherwise encumbered or alienated”,5 “the use and enjoyment of land shall be the right of all the Mozambican people”.6 Such rights can be enjoyed by both individuals and groups.7 The Constitution also recognizes the equal rights of men and women in all spheres of political, economic, social and cultural affairs8 and this presumably extends to land rights. The Constitution explicitly protects the rights of those living and working on land. It states: “the terms for establishment of rights in respect of land … shall prioritize direct users and producers. The law shall not permit such rights to be used to favour situations of economic domination or privilege to the detriment of the majority of its citizens.”9 To this end, when granting leasehold titles, the State should respect existing “rights acquired through inheritance or occupation”.10 1.3 Types of land tenure Under the Land Law (1997), rights of use and benefit over land can be attained in three ways:

1. Through “occupancy by individual persons and by local communities, in accordance with customary norms and practices which do not contravene the Constitution”;11

2. Through “occupancy by individual national persons who have been using the land in good faith for at least ten years”;12

3. By “authorization of an application submitted by an individual or a corporate person”13 to state land administrators who may then allocate 50-year leasehold rights provided that the applicant has undertaken consultation with and obtained the approval of the community holding rights over such land.14

Each of these means of securing land rights is equal in terms of legal weight and status. In all three cases, the right accrued is private and holders can exclude third parties. There are no limitations on who can hold rights to land. According to the law “men and women, as well as local communities, may be holders of the right of land use and benefit”15 and may obtain this right

5 Article 46, sections 1, 2. 6 Article 46, section 3. 7 Article 47, section 2. 8 Article 67. 9 Article 47, section 3. 10 Article 48. 11 Article 12(a). 12 This right is contingent upon there being no demonstration of a declared and legally-recognized interest over the land in question by a third party. Article 12(b). 13 Article 12(c). 14Article 1, section 7 also makes this point, defining “occupancy” as a “form of acquisition of the right of use and benefit of land by national individual persons who have been using the land in good faith for at least ten years, or by local communities”. 15 Article 10, section 1.


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either “individually or jointly with other individuals and corporate persons by way of joint titling.”16 It is the first two methods of acquiring rights of land use and benefit that are most relevant to rural communities. Mechanisms for documenting these land rights are discussed below. 1.3.1 Community land rights acquired in accordance with customary norms

The Land Law (1997) provides that communities occupying land according to customary practices automatically acquire a right of land use and benefit over such land.17 Importantly, such rights do not need to be registered or titled: “the absence of registration does not prejudice the right of land use and benefit acquired through [good faith or customary] occupancy… provided that it has been duly proved.”18 Communities may, however, elect to undertake this process: “areas over which a right of land use and benefit has been acquired by occupancy according to customary practices may, when necessary or at the request of the local communities, be identified and recorded in the National Land Cadastre.”19 Communities may pursue this option because, although titling and registration do not create any new rights, possessing documentary evidence of their rights may be perceived as a stronger form of protection.20 In this case, the Land Law Regulations and accompanying Technical Annex to the Land Law set out the relevant “delimitation” procedures that must be completed.21 These steps are as follows:

Step 1: Formation of a working group

An advisory “working group” must be established to coordinate and lead the community through each step of the delimitation process. The composition of the working group is not defined in the law or regulations although Article 11(2) of the Technical Annex mandates that it should “include a technician with basic knowledge of topography and who shall have the information contained in the Cadastral Atlas.” To ensure that the results of the delimitation process are equitable, just and representative of the community as a whole, the working group must “work with men and women and with different socio-economic and age groups within local communities” and ensure that they arrive at decisions through consensus.”22 Step 2: Education, awareness-raising and election of community representatives

The working group begins by convening meetings and communicating important information about the delimitation process to community members, including:

The reason for and objectives of the delimitation process; Relevant provisions of the law and regulations; The methodology of the delimitation process; and The advantages and implications of community delimitation.23

These meetings culminate in the election of community representatives who will be directly involved in the delimitation process. The minutes of all delimitation-related community meetings must be signed by these representatives. Step 3: Participatory appraisal and map-making

The law defines participatory appraisal as “information given by a local community

16 Article 10, section 2. 17 Land Law Regulations, Decree 66/98 of 8 December (1998), Article 9, section 1. 18 Land Law (1997) Article 14, section 2. 19 Regulations Article 9, section 3. 20 Titling and registration may be perceived as important for several reasons. In the event of a land conflict, or in circumstances where a community stands to lose some of its land or natural resource claims, it is sometimes necessary to document and provide proof of the community’s land claims. Further, after being formally delimited and registered, the community is recorded as a private legal entity, capable of entering into contracts with outside investors. 21 Technical Annex to the Land Law Regulations, Article 5, section 1. 22 Technical Annex Article 5, section 2. 23 Technical Annex, Article 8, section 1.


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regarding: 1. Its history; culture and social organization; 2. The use of the land and other natural resources and the mechanisms for its

management; 3. Spatial occupation; 4. Population dynamics; and 5. Possible conflicts and the mechanisms for their resolution.”24

From the appraisal two “participatory maps” of the community are drawn. Each is made by separate community sub-groups (usually one male and one female). Participatory maps are defined in the law as:

Drawings designed by an interest group of the community, namely men, women, young people, elders and others, which shows in an initial and relative way, not to scale, the permanent natural or man-made landmarks used as boundaries, the identification and location of natural resources, reference points where conflicts regarding natural resources take place or any other boundaries or relevant features.25

Neighbouring communities must verify the accuracy of the maps and contribute to a descriptive report of neighbouring lands.26 Such verification is critical given the high incidence and complex nature of border disputes, particularly in areas that are rich in natural resources. Step 4: Boundary definition

Once agreed upon by all stakeholders, boundaries are formally marked on both participatory maps. Where there are no natural or man-made boundaries, communities may reference “other physical markers, such as trees or piles of stones, which indicate the boundaries of the area it occupies.”27 In such instances, in order to define clearer boundaries, communities may plant new hedges, trees or shrubs in the presence of their neighbours.28 The two maps are then compiled by state technical staff into one computer-generated cartogram. A “sketch plan” and accompanying “descriptive report” are then generated. The sketch plan is a transcribing of the community-generated maps into terms that enable it to be located on the cadastral maps, including geo-referencing points and boundary lines. The “descriptive report” is derived from the participatory appraisal and may include the structure and history of the community, natural resources, communal areas, scared spaces and other important community infrastructure.29 Step 5: Feedback

The sketch map and descriptive report are presented to the community and neighbouring communities for verification and approval.30 Once approved, the documents are entered into the national cadastre. Within 60 days the cadastral service must issue a Certificate of Delimitation in the name of the community.31 This certificate provides formal evidence that

24 Technical Annex Article 2, section 6 and Article 10, section 1. 25 Technical Annex Articles 2, section 8 and 10, section 1. 26 Technical Annex Article 5, section 3. 27 Technical Annex Article 10, section 2. 28 Technical Annex Article 4, section 4. 29 Although the Land Law does not make this explicit, the delimitation process is designed to foster examination and clarification of community membership and to provoke community discussion and decision about how it will choose to govern itself. As such, the delimitation process is also useful as a basis or starting point for community participatory land use planning and natural resources management. 30 Technical Annex Article 12, section 1. 31 Article 13, section 4.


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a delimitation exercise was carried out in accordance with the law and certifies the existence and boundaries of a community.32 Once registered, the community holds a single “right of land use and benefit” in respect of its land. As a title holder, the community acquires legal personality and can thereafter enter into contracts with investors, open bank accounts and undertake other legal actions.

1.3.2 Individual and family land rights acquired through good faith occupancy

The Land Law (1997) recognizes the right of use and benefit of all nationals who have occupied land in good faith or for ten years or more.33 As with community land claims, neither titling nor registration is required to prove or assert such rights; proof of one’s land claims may be provided through the oral testimony of one’s neighbours.34 Individuals or families can, however, choose to formally register their land claims.35 This right is open to both men and women: “Individual men and women who are members of a local community may request individual titles, after the particular plot of land has been partitioned from the relevant community land.”36 Applicants must:

Present an identification document;

Indicate the nature and dimension of the land being claimed;

Provide an opinion of the district administrator following consultations with the local community;

Provide public notice of the land claim and proof that such notice has been displayed in the headquarters of the relevant district and at the land itself for 30 days.37

When the applicant intends to use the land for economic activities (apart from subsistence farming) an Exploitation Plan and a Technical Opinion assessing the planned endeavor must be issued by the responsible government body and included in the registration application.38 1.3.3 Individual or corporate land rights acquired by formal application

The final way to acquire a right of land use and benefit is through “authorization of an application submitted by an individual or corporate person in the manner established” by law.39 This is the only means by which foreign individuals and national or foreign corporations may acquire a right of land use and benefit. Where approved, rights of use and benefit are awarded for a term of 50 years, and are renewable for a further 50 years upon application.40 Such rights are transferable and heritable.41 32 Communities may also have their land formally demarcated by trained land surveyors. This exercise is, however, expensive and customary boundaries take precedence over measured boundaries in the event of a discrepancy; Technical Annex Articles 16, sections 1, 20, 21. 33 Article 12. Where two parties have competing claims to one piece of land “the party who demonstrates the earlier acquisition shall prevail, except where the [subsequent] acquisition was in good faith and endured for at least ten years”; Regulations Article 21, section 2. As such, the only situation where an individual or family can be displaced from land is if they were occupying that land in bad faith, or for less than ten years, and their claim is contested by an earlier rights holder; Regulations Article 21, section 2. 34 Article 15(b). 35 Regulations Article 10, section 3. 36 Article 13, section 5. 37 Regulations Article 24, section 1 and Article 10, section 3. 38 Regulations Article 24, section 2. 39 Article 12(c). 40 Article 17, section1, Regulations Article 18, section 1. By contrast, a right of land use and benefit is not subject to a time limit where the right was acquired by local communities through occupancy; where it is intended for personal residential purposes; and where national individual persons intend it for family use. Article 17, section 2. 41 Because all land is owned by the state, the Land Act (1997) does not permit the transfer or sale of land. However, “all infrastructures, structures and improvements existing upon the land” may be sold or transferred. Transfers may be made inter vivos (by sale and purchase) or by inheritance. Likewise, while land itself may not be mortgaged, any improvements made to land, such as infrastructures or buildings, can be mortgaged, Article 16, sections 2, 5. While the Land Law does not allow land to be bought, sold or mortgaged, it is possible to transfer and transact improvements to land. As a result, a de facto and unregulated “land market” has evolved, wherein trees, huts, crops and other structures are transacted at distorted prices. Once the sale of these assets is completed, the underlying right of land use and benefit is then


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To apply for a grant of land, applicants must submit an Exploitation Plan detailing how the land is to be used and seek approval from the District Administrator.42 Applicants must also:

Present an identification document (or in the case of a corporate applicant, the articles of association);

Present a sketch of the location of the land and descriptive report;

Indicate the nature and dimension of the undertaking proposed;

Provide an opinion of the district administrator following a formal consultation with the local community;

Provide proof public notice of the land claim;

Provide proof of payment of the provisional authorization fee.43 When the applicant intends to use the land for economic activities a Development Plan and Technical Opinion issued by the relevant ministry must also be provided.44 Once an application has been submitted, the cadastral service must provide the District Administrator “with all the technical assistance necessary to enable him to gather information about the land area and the neighbouring lands.”45 After an applicant has submitted all the requisite paperwork, investors must consult with the community or communities that occupy the land in question “for the purpose of confirming that the area is free and has no occupants” (see further Section E).46 The District Administrator and the Cadastral Services must jointly facilitate these consultations. The outcome of the consultation must be documented and signed by a minimum of three and a maximum of nine community representatives of the local community, as well as by the owners or occupiers of neighbouring land.”47 It should be highlighted that if a community chooses to temporarily “share” its land rights with an investor, its rights over such land are not extinguished. The only way for a community to lose its land rights is if the state, acting in the public interest, compulsorily acquires a community’s land. In this instance, the community must be compensated for its loss.48 After the consultation has been carried out and application submitted, a provisional authorization may be issued (valid for a maximum of five years for Mozambican nationals and two years for foreigners).49 The applicant has one year to clearly demarcate the boundaries of this land. If demarcation does not take place and the applicant has not requested a 90-day extension of the time limit, the provisional authorization is cancelled.50 Such rules are intended to protect against land speculation and have been used to revoke grants of land use and benefit.51 Only once the applicant has proved that he or she has demarcated the land and is fulfilling the exploitation plan, full authorization and a 50-year right of use and benefit will be granted.52 1.4 Management and administration of community lands Responsibility over local-level land administration and management is devolved to communities. The law vests individual community members with the right and responsibility to participate in natural resource management, conflict resolution and land titling.53 Such powers, however, can transferred through formal registration, S Norfolk & C Tanner, Improving Tenure Security for the Rural Poor Mozambique Country Case Study, FAO Legal Empowerment of the Poor Working Paper No. 5 (2007) 4. 42 Article 18, section 1. 43 Regulations Article 24, section 1. 44 Regulations Articles 24, 26 45 Regulations Article 27, section 1. 46 Article 13, section 3. 47 Regulations Article 27, section 2. 48 Article 18, section 1(b). 49 Article 25. Regulations Article 28, section 3. 50 Regulations Article 30. 51 H Liversage, IFAD, personal communication, July 2008. 52 Regulations Article 11, Regulations Article 31. 53 Article 24, section 1.


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also be exercised through community representatives. Communities can choose to expand the powers of existing customary leadership structures to include land administration and management functions, or create new structures. Such bodies operate with near autonomy and with few checks and balances on their powers.54 Rresponsibilities may include:

Allocating rights of use and benefit acquired through occupancy to individual community members and families according to local norms and practices;

Allocating areas of community lands for communal usage, sacred spaces or burial grounds;

Managing intra-community zoning, land and natural resource use;

Resolving inter- and intra-community land disputes; and

Participating, together with district authorities, in processes of community land allocation by the State through community consultations (see further Section 5).

Decisions as to what rules will govern land administration and management rest with communities themselves. The Land Law (1997) provides that customary norms and practices are one legitimate method of managing and administering land, provided that they do not contravene the Constitution.55 In terms of natural resource management, again, the law does not specify what particular practices communities should follow or who should make land and natural resource-related decisions. It simply states that in exercising such competencies, local communities “shall use, among others, customary norms and practices.”56 The Forest and Wildlife Law (1999) provides some additional guidance. It guarantees community access and use of natural resources for subsistence, subject to certain conditions including prohibitions on the hunting of protected species and outside hunting seasons, the use of certain weapons and traps, illegal burning of forest and the cutting of young trees.57 However the law is silent on how a community might choose to terminate the land rights of one of its members occupying land in bad faith or in breach of customary law or misusing community natural resources. Under the Land Law (1997), communities can transfer their rights of use and benefit.58 While the community must consent to any land transfer that occurs within its boundaries, the law is unclear whether such consent needs to be granted by the customary authority, rights holders of neighbouring land, or both, and how such consent is to be documented. Similarly, the law fails to establish processes for how a community member might contest the revocation of his or her land rights by customary authorities. The law does, however, outline some specific responsibilities that communities must fulfil, such as protecting customary rights of way and resolving local land conflicts:

1. Protecting customary rights of way: Rights holders must allow neighbours to cross through land to access necessary water sources, natural resources or infrastructure.59 Rights holders must also respect servitudes that have been created and registered “in respect of public and community ways of access and access for livestock, which have

54 Mozambique’s cadastral service, the National Directorate of Land and Forests (DNTF, Direcção Nacional de Terras e Florestas), is charged with supervising compliance with the Land Law (1997) and its regulations, and investigating infractions. (Regulations Article 37, section 1) However, the Land Law is unclear concerning what kinds of behaviours may be considered to be infractions or what sanctions might apply. 55 Article 24, section 2. 56 Land Law Article 24, section 2. These principles are re-affirmed in the Forest and Wildlife Law (1999) (Law 10/99, of 7 July 1999). 57 Many sections of the Land Law (1997) and Forest and Wildlife Law (1999) were intentionally harmonized by lawmakers. Both confirm that all natural resources are the property of the State, but vest access and use rights over these resources in Mozambicans. The laws contain the same definition of local community and both establish that any forest resources located within the boundaries of a local community are to be held and managed by the community. (Forest and Wildlife Law, Article 3(e)). 58 All land transfers must be registered. Registration involves obtaining “authorization from the competent state entity” and “consent by the community members” and then depositing a notarial deed at the public property register (Conservatórias do Registo Predial) See Land Law Article 16, section 2 and Regulations Article 15, section 4 respectively. 59 Regulations Articles 13, section 1(b) and 14(b).


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been established by customary practice.”60 According to Tanner, these provisions were included following research which found that in rural areas: “Important footpaths and other rights of way (servidões) established by generations of customary use…might go unrecorded… [which] could result in communities being cut off from access to rivers, or being told that they can no longer use part of this land for traditional seasonal grazing.”61

2. Conflict resolution: The Land Law Regulations (Decree 66/98) provides that holders of rights to land use and benefit may “defend their rights in accordance with the law against any encroachment by another person.”62 The process for defending such rights, however, is not explicitly defined. The Land Law (1997) provides only that “[c]onflicts over land shall be resolved in a Mozambican forum”63 and that in rural areas communities are responsible for conflict resolution.64 This implies that communities are expected to resolve disputes either through existing customary fora or develop alternate adjudication mechanisms. Decree 15/2000 (20 June 2000) can be drawn upon for further clarification. This decree legitimizes the role of community leaders (either customary leaders or elected political secretaries) in conflict resolution processes, community land delimitation processes and in representing community opinions on land use applications. It also authorizes community courts applying customary rules of evidence to adjudicate minor misdemeanours, resolve family problems and hear cases concerning land conflicts.65 Decisions issued can be reviewed by district level courts, with final appeals heard by the Supreme Court of Mozambique. 66

1.5 Consultations and community-investor partnerships As discussed above, an investor seeking land on which to establish an economic enterprise must consult and seek the consent of the community holding the right of use and benefit over such land. Applications must include a statement by local administrators confirming that a consultation with the relevant community or communities has taken place, and that the community has confirmed “that the area is free and has no occupants”.67 If the community agrees to cede its land and the investor’s application is approved, the land ceases to be managed by the community for a period of between 50 and 100 years.68 Community consultations were designed to be a mechanism to ensure that the land rights of local communities were not discounted by government officials and captured by investors. According to Tanner, one rationale behind the law’s institution of mandatory consultations stemmed from “a concern that local people should be consulted first before any new land allocations are made… [as] they are the ones who know where rights through occupation exist…and whether a piece of land is in fact ‘free’ or not.”69 A second factor was Mozambique’s goal of creating an “open border” model of community-investor land use and exchange. This model is intended to promote the integration or co-existence of small-scale farms and enterprise development (rather than locating investment outside of or separate from rural communities). If done correctly, such a model has the potential to promote rural development and local prosperity by empowering communities to negotiate with investors to receive amenities, benefits, or rental payments in exchange for land use.

60 Regulations Article 14(c), Regulations Article 17, section 2. 61 C Tanner, Law Making in an African Context: the 1997 Mozambican Land Law, FAO Legal Papers Online No. 26 (2002). 62 Regulations Article 13, section 1(a). 63 Article 32, section 2. 64 Article 24, section 1(b). 65 Decree 15/2000 (20 June 2000). 66 Ibid. 67 Article 13, section 3. 68 Article 17, section 1. 69 C Tanner, Land Rights And Enclosures: Implementing The Mozambican Land Law In Practice (paper presented to the International Conference, ‘The Changing Politics of Land in Africa: domestic policies, crisis management, and regional norms’, University of Pretoria, 28-29 November 2005).


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Diagram 1: Closed versus open land use systems70

The extent to which the aims of community consultations have been achieved in practice is somewhat mixed. Research into the nature of community consultations conducted by Tanner and Calengo concluded that, at least within the sample reviewed, the vast majority of applications submitted by an investor included a community consultation.71 However, a review of 260 community consultations undertaken by the Centre for Legal and Judicial Training (CFJJ) and the FAO Livelihoods Programme found that communities were not provided with a genuine opportunity to negotiate and bargain with investors for mutual benefits, payments or the provision of amenities in exchange for their land.72 The research concluded that both investors and government officials tended to view consultations, not as a mechanism to promote community development and partnership, but as an administrative hurdle to complete before securing a right of land use and benefit.73 Likewise, anecdotal evidence collected by Calengo et al. indicated that during community consultations, particularly for areas with potential for tourism-related investment, government officials appeared to be aligned with investor interests rather than being focused on protecting community interests, promoting partnership ventures, or ensuring that communities were appropriately compensated.74 A further issue of concern is the lack of safeguards or mechanisms to ensure that investors fulfil

70 Tanner, above n 69, adapted from C Tanner, P De Wit and S Madureira, Propostas para um Programa de Delineação das Comunidades Locais (Proposals for a Programme of Community Land Delimitation), Inter-ministerial Commission for the Revision of Land Legislation, Ministry of Agriculture and Rural Development/FAO, document presented to the National Seminar on Delimiting Community Land, Beira, August 1998. 71 A J Calengo, J O Monteiro & C Tanner, Mozambique Land and Natural Resources Policy Assessment, Final Report. Centro de Formação Jurídica e Judiciaria, Ministry of Justice, Maputo, (2007) 18. 72 C Tanner and S Baleira, Mozambique’s legal framework for access to natural resources: The impact of new legal rights and community consultations on local livelihoods, FAO Livelihoods Support Programme Working Paper No. 28. Centro de Formação Jurídica e Judiciaria, Ministry of Justice, Maputo (2006). 73 Ibid. 74 Norfolk and Tanner, above n 41, 24. Similarly, Durang and Tanner report that “consultations between the investors and local communities seldom exceed half a day of dialogue…While the consultation should result in some compensatory benefit for local people, this is very much a secondary objective for the land administration services compared with the need to secure a community ‘no-objection’ and give the investor his or her new [right of land use and benefit within the time limit of] less than 90 days”, T Durang and C Tanner, Access to land and other natural resources for local communities in Mozambique: current examples from Manica Province (paper presented to the Green Agri-Net Conference on ‘Land Registration in Practice’, Denmark (1-2 April 2004) 4). Calengo et al found that community consultations were conducted to give the “process a veneer of legitimacy by showing that local rights are apparently respected. In many cases however, it is clear that officials see their job as helping investors get the land they need, and do not accept that local rights are ‘real’ in the sense that they give locals secure private tenure that cannot simply be taken away.” (Calengo et al, above n 71 14.) The CFJJ/FAO research indicated that the majority of agreements reviewed were poorly recorded, with insufficient detail or no uniformity of presentation, and large variations in terms of type and quality of information recorded. Likewise, the meetings’ minutes were generally vague and did not include sufficient detail concerning: the content of the negotiations, the “benefits” agreed upon, the timeframe in which these benefits were to be delivered, or the economic gains to be realized by communities in exchange for their land (Tanner and Baleira, above n 72, 5-6).


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the benefits-sharing agreements they enter into with communities. The law does not require that investors and communities enter into a contract, nor does it establish a mechanism for enforcing such agreements. The Regulations require that “charges and encumbrances and other legally executed transactions” related to the land be noted on the title and the Regulations and the Technical Annex require that community consultation reports be signed by at least three and up to nine community representatives.75 However it is unclear whether these documents have the status of a contract and, if not, the extent to which they would be legally enforceable (i.e. whether a judge could use such documents to order investors’ specific performance).76 1.6 The rights of women and other vulnerable groups Women’s equal right to hold rights of land use and benefit is a central tenet of the Land Law (1997). The law requires that customary processes will be invalidated or ruled null and void if they do not adhere to constitutional guarantees, including gender equality.77 The Technical Annex requires that women actively participate in and are present during community delimitation exercises. For example, it provides that the advisory working group include “men and women and with different socio-economic and age groups within local communities”;78 that women take part in the participatory community map drawing process;79 and that the forms completed during the delimitation process be signed by no less than three and no more than nine “men and women from the communities, chosen at a public meeting.”80 Importantly, the Land Law (1997) and accompanying Regulations require that community land claims be managed according to principles of “joint titling” as set out in Mozambique’s Civil Code, Article 1403 of which defines the co-ownership of property as when two or more people simultaneously hold property rights over the same item of either moveable or immoveable property.81 In the context of community title, this vests men and women with equal rights in community property, as well as an equal voice in land and natural resource management decisions. Finally, the inheritance rights of women are specifically protected by law. Article 16§1 of the Land Law (1997) provides that “[t]he right of land use and benefit may be transferred by inheritance, without distinction by gender.” In this regard, the Family Law (2004) (which regulates the transfer of property between spouses and their families at marriage and at death) recognizes not only civil marriages, but also customary marriages and informal unions between men and women. It decrees that all women who have lived with their partners for more than one year are entitled to inherit the property of their partners. This law also gives either spouse responsibility over family decisions regarding assets and property, and states that immovable property — whether individually owned or common property — may only be transferred with the express permission of both spouses. Together, these provisions offer strong state-level protections over women’s land and property rights, both during marriage and in the event of widowhood.82 It is important to highlight, 75 Regulations Article 27, Technical Annex Article 6. 76 Regulations Article 36, section 2. Tanner reported that as of 2005, no community had taken legal action against an investor for failure to provide the agreed “mutual benefits.” (Tanner, above n 69, 16) However, the CFJJ/FAO study of land and natural resource conflicts showed definitively that poorly carried out consultations are often a basic cause of bitter and longstanding conflicts between local people, the state, and those who would occupy their land and use their resources. Meanwhile, even if a community did take such action, it was not clear how enforceable it would be as it is unclear from the Land Law how such agreements should be interpreted and enforced by the courts. (Calengo et al, above n 71 13-14; Norfolk and Tanner, above n 41, 24; Durang and Tanner, above n 74; Tanner and Baleira, above n 72 2, 5-6.) 77 Article 12. 78 Technical Annex Article 5, section 2 79 Technical Annex Article 2, section 8 80 Technical Annex Article 6, section 3. See further: Technical Annex Forms 1 and 3. 81 See Article 10, section 3 and Regulations Article 12. 82 It is important to note that despite the many provisions in the Land Law that protect women’s land rights, there are reports that women have been largely unable to claim these rights. Despite mounting anecdotal reports of dispossession of land from widows, from 1997 until 2006 there appear to have been no known cases of women using the Land Law to defend their land rights in court, Norfolk and Tanner, above n 41, 16. According to one report, “[f]ew rural women are aware of these legal provisions, and even fewer have the resources to use them to defend


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however, that the law does not establish any safeguards for preventing, or mechanisms for resolving, community-level rights violations. Power over such disputes is devolved to communities, and while decisions can be appealed to higher authorities, women may face difficulty accessing such fora. 2. Uganda: Land Act (1998)

2.1 Overview Unlike many countries in Africa, where the state holds land in trust for its people, the Ugandan Constitution (1995) and Land Act (1998) give nationals the right to own land. Such rights extend to individuals, families and communities holding land under customary tenure, and are legally recognized regardless of title or formal documentation. While such provisions should theoretically support high levels of tenure security, the situation in Uganda is currently one of acute and growing land insecurity. The land market is characterized by rapid buying and selling of land, intense competition, boundary disputes and other land-related legal contests. There have been documented cases of neighbors encroaching on each other’s lands in bad faith and in disregard of exiting survey markers; families of deceased men evicting widows and their children from family lands; intra-family homicide to widen inheritance divisions; and community lands being illegally seized and developed by local elites as individual properties.83 In the face of escalating land competition, longstanding customary rules and social norms relating to land are being eroded or reinterpreted to legitimate exclusionary practices, and are proving inadequate to temper such trends. The Land Act (1998) contains safeguards to address some of these issues. Individuals, families and communities who occupy land under customary paradigms can obtain documentary proof of their land claims by (i) applying for a Certificate of Customary Ownership, (ii) applying for freehold title, or (iii) joining with other community members to establish a Community Land Association and apply for joint title to their lands. The Act also provides protection for the land rights of women and other groups with vulnerable land claims. For example, the consent of spouses and close family members must be secured before any land sale can be finalized84 and customary practices that violate Constitutional provisions relating to gender equality are prohibited. 85 Importantly, no community to date has followed the abovementioned procedures to successfully form a Communal Land Association and obtain a community freehold title or Certificate of Customary Ownership.86 This may be due to the growing importance attached to individual land rights, the population’s lack of knowledge about their land rights and how to enforce them, and/or insufficient government capacity to facilitate land registration. A final factor inhibiting the smooth regulation of land transactions is that the Land Act (1998) is not supported by an official Government Land Policy (although one is expected to be released in the near future).

their rights … Within communities and rural households the rights of women are still regulated by land management systems that are often discriminatory. Very often the ‘customary norms and practices’ recognized by the Land Law do in fact go against Constitutional principles.” (Seuane 2005, cited in Norfolk and Tanner, above n 41, 16). Research has also found that the combination of conservative male attitudes and deeply rooted customary practices ensure that women’s land rights remain very vulnerable; Calengo et al report that, “During a round table with NGOs in Nampula it was mentioned that although women have started to be aware of their land rights and are more interested in exercising and defending these rights, traditional cultural customs and practices in their communities still determine their rights and obstruct attempts to assert them more forcefully.” Calengo, above n 71, 33. 83 Client data on file with author. 84 Section 39, sub-section 1(c). 85 Section 27. 86 Personal communication, officials within Uganda’s Ministry of Lands, Housing and Urban Development, May 2009.


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2.2 Constitutional basis Uganda’s Constitution (1995) introduced important changes relating to customary land holdings and ownership. It established that all land held under customary tenure was owned by the people living and working on it and legitimized customary tenure as a valid and inviolable claim. 87 Customary land ownership is recognized regardless of title or formal deed, although rights holders may choose to obtain formal proof of their land claims by applying for a Certificate of Customary Ownership88 or by converting such rights to freehold tenure.89 2.3 Types of land tenure in Uganda The Constitution (1995) and Land Act (1998) recognize four types of land tenure:

1. Customary: A form of tenure governed by customary rules that generally permit communal ownership and use of land, parcels of which may be recognized as subdivisions belonging to a person, family or traditional institution in perpetuity.

2. Freehold: A form of tenure that enables the holder to exercise full powers of ownership including: using and developing the land for any lawful purpose; taking and using any and all produce from the land; selling, leasing, mortgaging, pledging or subdividing land; creating rights and interests for other people in the land; creating trusts of the land; and disposing of the land to any person by will.

3. Mailo: A type of tenure specific to Uganda which permits a separation of land ownership from ownership of developments on land made by a lawful or bona fide occupant.

4. Leasehold: A tenure created by contract or operation of law under which the landlord or lessor grants the tenant or lessee exclusive possession of land (usually subject to certain conditions) for a specified period in return for rent, a premium, services or other consideration.90

The Land Act (1998) also establishes some public lands: all wetlands are public lands under the control of the National Environmental Management Authority (NEMA) and the government holds in trust for citizens all natural lakes, springs, rivers, ground water, natural ponds, natural streams, watercourses and other wetlands.91 These water resources cannot be dammed, obstructed, polluted or otherwise interfered with without written permission from relevant ministry officials.92 Forest reserves, national parks and other reserved lands are also held by the state.93 Finally, existing rights of way are reserved as public property.94 2.4 Land administration and conflict resolution 2.4.1 Land administration bodies

At the national level, powers of land administration are vested in the Uganda Land Commission. Its functions relate principally to the holding and management of government land both inside the country and overseas.95

87 Ugandan Constitution (1995) Article 237: “Land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in this Constitution.” 88 Section 4, sub-section 1. 89 Section 10, sub-section 1. 90 Land Act 1998 (Sections 2-3) Constitution Section 237. 91 Section 44, sub-section 1. This mandate impacts a large percentage of communally-used lands in rural Uganda; most of the grazing lands that communities use and govern according to customary principles are classified as public land owned by the state and administered by NEMA. Communities may apply for use licenses/permits over these lands (The National Environment Act (Cap. 153) (1995) Sections 36 & 37; The National Environment Regulations (Wetlands, Riverbanks and Lakeshores) Sections 11, 12, 23 and First Schedule Form A). 92 Section 70, sub-section 1. 93 Section 44, sub-section 1. 94 Section 71. 95 Sections 46, 49. Specific functions include purchasing, exchanging or holding land rights, easements or interests in land; building, altering, enlarging, improving or demolishing any building on government land; selling, leasing or otherwise transacting government land; surveying, mapping, or performing other technical land management activities to the land, and any other necessary land administration functions. Section 53, sub-section 1.


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District level land administration is vested in independent District Land Boards.96 Such Boards are mandated to enact and give effect to national and district land policies as well as customary land tenure systems that exist in the district.97

District Land Boards are responsible for:

Holding and allocating land that is not owned;

Facilitating the registration and transfer of interests in land;

Acting as lessor over existing state leases;

Ordering and supervising the creation of land surveys, plans and maps etc. by state officials;

In consultation with technical officers in the district, compiling, maintaining and annually reviewing rates of compensation for crops and other improvements to land.98

District Land Boards also have the power to:

Purchase or otherwise acquire rights and interests in land;

Build, alter, enlarge, improve or demolish any building on board-owned or held land;

Sell, lease or otherwise transact land on behalf of the district.99 Each district must have a District Land Office that includes within its staffing structure a physical planner, land officer, valuation expert, surveyor and a Registrar of Titles.100 These officers provide technical expertise and services to the District Land Board.101 Under the Registration of Titles Act (Cap. 230) (1924), the Registrar of Titles is empowered to issue new Certificates of Title, and amend or cancel Certificates of Title that were issued in error, that were illegally or wrongfully obtained, or that contain an illegal endorsement, error, or inaccurate description of the land or its boundaries.102 The District Land Office is also supported by Area Land Committees which exist at the county/parish level and in every urban area. These Committees play a key role in the issuance of Certificates of Customary Ownership, in that they are responsible for carrying out “adjudication processes” (discussed below).103 They are also tasked with providing advice to the District Land Board on any applicable question regarding customary land law.104 Each sub-county/parish region and urban area must also have a Recorder responsible for maintaining records relating to Certificates of Customary Ownership and Certificates of Occupancy, and ensuring that District Land Boards have a copy of such certificates. In rural areas, the sub-county chief may take on the role of Recorder for his or her respective area.105 2.4.2 Conflict resolution

At the District level, District Land Tribunals are charged with adjudicating land disputes and making orders in relation to:

The grant, lease, repossession, transfer or acquisition of land;106

The amount of compensation to be paid for land compulsorily acquired;107 and

96 Section 56. 97 Section 60, sub-section 1. 98 Section 59, sub-section 1. 99 Section 60, sub-section 2. 100 It should be noted that most districts do not, however, have anyone filling the position of a District Registrar. (Personal communication, Uganda Ministry of Lands, Housing and Urban Development officials, May 2009). 101 Section 59, sub-section 6,7. 102 Section 91. 103 Section 64. 104 Section 5, sub-section 1. 105 Section 68. 106 Section 76, sub-sections 1, 2. 107 Section 42.


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The issuance or cancellation of Certificates of Customary Ownership or titles (as described below).108

Tribunals also have the power to:

Grant decrees of specific performance or relief;

Cancel, vary, postpone or confirm any action, notice, order, decree or declaration relating to land;

Issue injunctions; and

Revise decisions issued by any official, board, committee, association or the Land Commission.109

Tribunals can also recommend that parties to a land conflict refer their dispute to a mediator110 or back to the customary level for resolution.111 In this regard, the law is clear that the establishment of tribunals should not prevent, limit or hinder traditional authorities exercising their “functions of determining disputes over customary tenure or acting as a mediator between persons who are in dispute over any matters arising out of customary tenure.”112 Tribunals consist of three members appointed by the Chief Justice, including a chairperson who is a magistrate and at least one member with “knowledge and experience in land matters”.113 In discharging its duties, Tribunals must apply rules of procedure as determined by the Chief Justice, but may modify rules of evidence if this is necessary to ensure the expeditious and just resolution of land disputes.114 Appeals of decisions issued by Tribunals are heard by the High Court of Uganda.115 2.5 Customary land rights: documenting individual, family and group claims Importantly, individuals and communities living in rural areas and who occupy land according to customary paradigms do not need to formally document or register their land rights; such rights exist independently of title or certification.116 If an individual, family or group decides to obtain documentary proof of ownership, however, there are three options available: 2.5.1 Certificate of Customary Ownership (CCO)

Article 4 of the Land Act (1998) provides that “Any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land in accordance with this Act.” 117 CCOs are issued by the District Land Board, following an adjudication process undertaken by the Area Land Committee.118 The adjudication process is designed to verify that the applicant(s) has rights over the land in question and to ensure that all existing rights to that land are protected in the CCO. First, the Area Land Committee must determine, verify and mark the boundaries of all interests in the land applied for. Second, to record and safeguard the land rights of women, absent persons,

108 Section 7, sub-section 6; Section 9, sub-section 6; Section 13, sub-section 7. 109 Section 76, sub-sections 1, 2. 110 Section 89 sub-sections 1,6,7; Section 89 sub-section 2; Section 89 sub-section 5. 111 Section 88, sub-section 2. 112 Section 88, sub-section 1. 113 Section 74, sub-section 1-3,5. 114 These rules of evidence also apply to Sub-County Land Tribunals, Section 78. 115 Section 87. 116 Although the Land Act does not mandate formalization of land ownership, the Government of Uganda has committed itself to a program of systematic demarcation and adjudication, with the goal of titling all land in Uganda. 117 It is important to note that, to date, no CCO’s have yet been issued (personal communications, Uganda Ministry of Lands, Housing and Urban Development officials, July 2009). 118 Section 4.


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minors and disabled persons, and ensure that there are no existing claims to the land in question that have not been properly recorded,119 the Committee must determine and document:

If there are any other individuals with claims to the land under customary law (including the terms and conditions of such claims);

The names of all people who exercise customary rights over the land and the nature of their individual shares and entitlements;

Any other third party rights over the land (e.g. leases, rights of occupation or rights of use).

Third, the Area Land Committee must investigate and address any conflicts concerning the land in question and determine the validity of the land claim.120 To do this, it must call a public hearing concerning the CCO application. The Committee must provide notice of the hearing and invite any person with an interest in or claim over the land (or any adjacent land) to appear. It may also call any individual it believes has knowledge concerning the land or conduct further investigations, using its best endeavors to mediate between and reconcile parties with conflicting claims.121 The Area Land Committee may administer this hearing using customary procedures and rules that apply to the settlement of disputes (including the acceptance of customary forms of evidence) so long as they align with “the rules of natural justice.”122 The Area Land Committee then prepares a report setting out its findings and recommendations. Copies are sent to the District Land Board and the applicant, and a copy is made available for public inspection.123 The District Land Board can accept the recommendation of the Area Land Committee, vary its recommendations, reject the recommendations or request that additional investigations be held. Appeals of the Land Board’s decision are heard by the District Land Tribunal and then by the Uganda High Court.124 If approval is granted, a CCO is issued. In terms of conferring rights over the land, a CCO is functionally no different than a freehold title : the holder of a CCO can lease, sell, mortgage, pledge, subdivide, or transfer land; dispose of it by will; or create, alter or discharge an easement to the land.125 The Land Act (1998) provides that financial institutions and authorities must recognize CCOs as valid certificates of ownership and evidence of title.126 It is important to note that while the CCO makes reference to all third party rights,127 it does not include the land’s metes and bounds (and geo-reference coordinates) and therefore may not provide adequate protection in the event of boundary disputes.128 2.5.2 Application for freehold title for customary lands

Individuals, households, families or communities that own land under customary tenure may apply for freehold title to their lands: “Any person, family, community or association holding land under customary tenure on former public land may convert the customary tenure into freehold tenure in accordance with this Act.”129

119 Section 5, sub-section 1. 120 Section 6, sub-section 2. 121 Section 6, sub-sections 4-5. 122 Section 5, sub-section 2. 123 Section 6, sub-section 6. 124 Section 7, sub-sections 1-5. 125 Section 8, sub-section 2. 126 Section 8, sub-section 7. 127 Section 7, sub-sections 1-5. 128 Note, however, that the application includes a sketch drawing of the land including the names of persons with neighboring land claims, rights of way, third party rights, etc. 129 Section 9, sub-section 1. If a group or individual already in possession of a CCO decides to obtain freehold title, the conversion process is relatively straightforward. The hearing that was held (under Section 6) in preparation for the CCO does not need to be repeated, Section 12, sub-section 2a. However, if there are any new or additional matters that were not dealt with in the original CCO report, these matters must be brought to the attention of the District Land Board, Section 12, sub-section 2b.


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Similar to the CCO process, after submitting the relevant form and fee to the Area Land Committee, a process of adjudication and investigation follows.130 This process is largely identical to that involved in applying for a CCO, with two differences. First, the Area Land Committee must consider whether the customary law in effect recognizes or provides for individual ownership of land. Second, the Committee must record whether the individual or group requesting freehold title is prima facie entitled to convert their customary tenure to freehold tenure (the law is unclear, however, upon what grounds this decision is to be based).131 It should be noted that if the applicant is already in a possession of a CCO, the adjudication and investigation process do not need to be repeated.132 Once the District Land Board receives the Area Land Committee’s report and recommendations, it will order that the land be professionally surveyed in accordance with the Survey Act (Ch 232) (1939). The District Land Board will then either:

Approve the application (with or without conditions);

Vary the recommendations of the Area Land Committee and approve the title (with or without conditions);

Direct the Area Land Committee to undertake further hearings or investigations; or

Refuse the application for title.133

Where the application is approved, a Certificate of Freehold Title is issued. Any encumbrances, restrictions, conditions or limitations as regards third party rights or easements are noted on the title.134 Appeals from the District Land Board’s decision are heard by the District Land Tribunal and then by the Supreme Court.135 2.6 Communal Land Associations As explained above, Uganda’s Land Act (1998) recognizes the ownership rights of communities holding land under customary tenure regardless of whether they hold a CCO or freehold title to that land. However, if a community wishes to be able to defend, protect or enforce its land rights or leverage/mortgage these rights to promote local development efforts, it may obtain a CCO or freehold title over their lands. The formation of a Communal Land Association may also be important if a community chooses to enter into agreements with investors that seek to use or occupy community held lands in return for rent, profit-sharing or other consideration. The process for forming a Communal Land Association is described below. 2.6.1 Formation of a Communal Land Association

Any group of people may form a Communal Land Association (CLA) for the purpose of communally owning, holding and managing land, whether under customary or statutory law.136 To begin the process, the group must lodge an application with the District Registrar of Title.137 The Registrar then convenes a meeting of the group, ensuring that all members are provided with proper notice of the place, date, time and purpose of the meeting.138 At the meeting, 60% of the group must agree to incorporate and elect between three to nine “officers” for the CLA, a third of which must be women.139

130 Section 12. 131 Section 11, sub-sections 2-3. 132 Section 12, sub-section 2a, see also: Section 12, sub-section 2b. 133 Section 13, sub-section 1; Section 9, sub-section 5. 134 Section 14, sub-section 3. 135 Section 9 sub-section 6; Section 13, sub-section 7. 136 Section 15, sub-section 1. 137 Section 16, sub-section 1. 138 Section 16, sub-section 3. 139 Section 16, sub-sections 4-5.


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2.6.2 Creation of a constitution

With the assistance of the District Registrar, the officers of the CLA are responsible for preparing (or leading a group preparation of) a constitution that will govern the administration and management of the jointly-owned land. The District Registrar must certify that the finalized constitution provides for transparent and democratic management procedures.140 The constitution comes into effect and is binding upon members only after a majority affirmative vote.141

Third Schedule, Land Act Regulations (2004):

Contents of a Model Constitution of a Communal Land Association Matters to be contained in a Constitution of an Association:

1. Name of the Association. 2. Address of the Association. 3. Objects of the Association, including the identity of the community covered by the

Association. 4. Land to be held or owned by the Association. 5. Names of intended members of the Association. 6. Qualification for membership of the association, including:

(a) Principles for the identification of other persons entitled to be members of the association;

(b) A procedure for resolving disputes regarding the rights of other persons to be members of the Association.

7. Classes of membership (if any) and the rights of the members of the different classes.

8. Rights of members to use property of the association. 9. Whether membership is based on individuals or families, and, if based on families,

how the family is to be represented in the decision-making processes of the association.

10. The grounds and procedure for terminating membership and what happens to the rights and property of the member concerned.

11. The purpose for which land may be used and the procedure to be followed in connection with the physical division of the land into individually owned plots.

12. Whether members may undertake transactions with their rights and to whom. 13. What happens to a member’s rights on death. 14. Procedure for election of officers, their terms of office, their powers, the powers of

members in relation to decisions made by the officers, the power of members to remove all or any of the officers and payment (if any) to the officers).

15. How and when the annual general meeting (AGM) is to be called; its quorum or procedure of representation at an AGM.

16. How and when general and other meetings are to be called; their quorum or procedure of representation at such meetings.

17. The powers of association and any limitations on them. 18. Responsibility for keeping minutes of meetings and access to the minutes by

members. 19. Financial matters: how monies of the association will be dealt with and by whom;

how and by whom will financial records be kept; independent audit and other scrutiny; access to financial information by members.

20. Procedure for change of the Constitution. 21. Procedure for dissolution and what happens to the land and other assets of the

Association.

140 Section 17, sub-section 1-3. If the Registrar finds that the constitution does not adequately provide for democratic and transparent procedures, it must return the constitution to the CLA within 30 days with an explanation of why it was rejected, and the Association must be given a chance to revise and resubmit. 141 Section 15, sub-section 4-5.


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22. How corruption, theft of Association property, nepotism and breach of officers duties to members will be dealt with.

23. Procedure for dispute resolution.142

2.6.3 Incorporation of the CLA

Upon approval of the constitution, the CLA can apply to the District Registrar to be incorporated. If the District Registrar is satisfied that all relevant regulations have been complied with, s/he will issue a Certificate of Incorporation, subject to any conditions and limitations that may be prescribed.143 As a body corporate, the CLA can sue and be sued, and enter into binding contracts.144 The officers are considered to “hold” the land of the CLA, and must exercise its powers on behalf of all CLA members. To transact land the officers must convene the CLA and obtain approval from a majority of members. Any land transactions that have not been duly approved are considered null and void.145 The District Registrar is obliged to keep a record of all CLAs in his or her district, and is charged with exercising broad supervisory functions including ensuring that a CLA’s constitution is complied with and that the CLA’s officers fulfill their fiduciary duties and manage the land in the interests of CLA members. If required, the Registrar may give the officers directions concerning the proper performance of their duties.146 2.6.4 Use and management of common land

Where the applicable customary law provides for it, a CLA can allocate or recognize that certain parcels of land are to be occupied and used by individuals or families for their own purposes and benefit.147 The CLA may also choose to set aside areas for common use, including for the grazing and watering of livestock; hunting; gathering of wood fuel and building materials; and gathering of forest resources for food and medicinal purposes.148 Boundaries of such land must be marked according to accepted local practices.149 Common areas must be managed according to a common land management scheme agreed upon by CLA members. Members must bear the burdens associated with and receive the benefits of the scheme.150 The Land Act (1998) suggests that the following items be included in a common land management scheme:

A description of the area of common land to which it applies;

A description of the management activities to be undertaken by the CLA;

The basic rights and duties of the members of the community using the common land to which that scheme applies;

The numbers and type of livestock which each member of the community may graze on the common land;

The locations within the common land where livestock may be grazed and the times when those locations may be used for the grazing;

The routes to and from the common land which livestock are required to use;

The terms and conditions on which hunting may take place;

142 The Land Regulations (2004) Third Schedule, Regulation 81 (Contents of a Model Constitution of a Communal Land Association). 143 Section 18, sub-sections 1-2. Note that after the CLA has become a body corporate, it can then, subject to approval by the Registrar, vary any terms and conditions that the Registrar has set, Section 18, sub-sections 3-4. 144 Section 19, sub-section 1. 145 Section 19, sub-section 3. 146 Section 15, sub-sections 1-3. 147 Section 22, sub-section 1. 148 Section 23, sub-section 3. 149 Section 23, sub-sections 1-2. 150 Section 24, sub-sections 1-3, 5.


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The amount of wood fuel, building materials and other natural resources which any member of the community may gather for the use of his/her homestead and his/her family;

The terms and conditions on which wood fuel and other natural produce may be gathered for sale;

General rules concerning access to and use of common land by members of the community and by other persons;

Any fees that may be charged to those using the common land;

Penalties that may be imposed on those violating the terms of the scheme;

Grounds for excluding any person from using the common land;

Any other matters as the members of the CLA may think fit to include.151 2.6.5 Rights and duties of community members using a CLA’s common lands

All members of the CLA are permitted to use common land, as well as certain non-members, provided that the CLA agrees and that the common land management scheme is complied with.152 All persons using common land have:

The right to make reasonable use of the common land (jointly with all members of the group);

The right to gather wood fuel and building materials and harvest the resources of the common land;

The right to exclude non-members of the group from the common land (other than non-members who have been permitted to enter and use the common land);

The duty to comply with and assist in the enforcement of the rules set out in the scheme;

The duty to bear a reasonable and proportionate share of any expenses or losses incurred as a result of using and managing the common land or any natural disaster affecting the common land;

The duty to support the establishment and management of a fund for the purposes of carrying out activities on and improvements to common land;

The duty not to transfer any rights to occupy or use or gather the produce of any common land to any person whether for a fee or otherwise (except in accordance with the terms of the agreement and the rules of the scheme);

The duty to comply with decisions of the CLA or any dispute settlement body established by the CLA to settle disputes arising from management of the scheme;

Any other basic rights and duties as may be proposed by the CLA and agreed to by the community.153

2.6.6 Disputes and conflict resolution mechanisms pertaining to CLAs

Decisions made by a CLA in connection with the management of the scheme can be appealed to the District Land Tribunal which has the power to confirm, modify or reverse such decisions.154 The District Registrar may also investigate or intervene in any CLA dispute, either independently or in response to a written request of at least one-tenth of CLA members. The Registrar can

151 Section 25. 152 Section 24, sub-section 4. 153 Section 26, sub-section 1. 154 Section 26, sub-section 2.


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undertake an inquiry, refer the dispute to the District Land Board or a mediator, propose amendments to the CLA’s constitution, or take other appropriate action.155 2.6.7 Dissolution of a CLA

Applications to dissolve a CLA must be referred to the District Registrar. The application must be signed by the officers and must include the signed minutes of the meeting during which a majority of the members voted to dissolve the CLA. The Registrar then approves the dissolution, publishes a public notice in this regard, and cancels the Certificate of Incorporation. Any fees, taxes and other debts owed by the CLA remain in force.156 2.6.8 Allowing for individual secession from the CLA

Where an individual, family or household occupying and using part of a CLA’s communally-held land wishes to transfer such land to customary or freehold title, they must apply to the CLA. If the CLA approves the application, the applicant(s) must arrange for this portion of the land to be demarcated (in the case of a CCO) or surveyed (in the case of a freehold title), and transferred to their name by the Recorder (for CCO) or the Register (for freehold title). Appeals of a CLA’s decision are heard by the Land Tribunal.157 2.7 The land rights of women and other vulnerable groups The Land Act (1998), while falling short of giving women rights of co-ownership over land held with their husbands,158 does allow women to own land in their own right.159 The law also provides explicit protection against discriminatory customary practices; it mandates that any customary decision or action which denies women, children or persons with a disability access to ownership, occupation or use of any land or otherwise imposes conditions which violate the Constitution shall be null and void. It is important to highlight that, as in Mozambique, the law does not establish any safeguards for preventing, or mechanisms for resolving, violations of such rights at the community level. Power over dispute resolution is devolved to communities. The law also establishes restrictions on the transfer of land by family members without the full, informed and explicit approval of rights holders who may be affected by the transfer. It forbids the sale, exchange, pledge, mortgage, lease, contract or inter-vivos transfer of any land upon which the family resides without the full, prior written consent of one’s spouse and children of majority age (which should not be unreasonably withheld).160 If a family member wants to transact land upon which orphans or young children reside, the Area Land Committee must approve the transaction and issue written consent.161 Should the seller/lessor fail to secure the required approval and consent, the matter may be referred to the District Land Tribunal. The Tribunal will either void the transaction or dispense with the consent requirement and allow the

155 Section 20, sub-section 1. When a district registrar has intervened, all members of the CLA must comply with the Registrar’s directions and cooperate with any person appointed by the Registrar to resolve the dispute, Section 20 sub-section 2. 156 Section 21, sub-sections 2-3. 157 Section 22, sub-sections 3-4. 158 Civil society lobbied vigorously for a “co-ownership” clause that would establish equal ownership by a husband and wife of the land on which the family's principle place of residence rests, or from which the family derives its principle source of income or sustenance. Proponents argued that co-ownership would increase women's decision-making power in the family and improve family livelihoods as women would be more willing to invest their labor, time, and resources in land that they own. See further: P McAuslan, A Narrative on Land Law Reform in Uganda (paper presented at Lincoln Institute course ‘Comparative Policy Perspectives on Urban Land Market Reform in Eastern Europe, Southern Africa and Latin America’, 2003, 8-9) at <http://www.lincolninst.edu/pubs/pub-detail.asp?id=809>. A 2004 amendment to the Land Act, however, goes part of the way towards resolving the lack of co-ownership rights for married or widowed woman in Uganda: Article 38A provides that “every spouse shall enjoy security of occupancy on family land” and goes onto define this as meaning that every spouse “shall have a right to have access to and live on family land”, amendment to Section 38 of the Land Act. New Section 38A (The Land Amendment Act 2004). The amendment establishes that “family land” is land on which the family residence is located and from which the family derives sustenance, including all land which is “treated as family land according to the norms, culture, customs, traditions or religion of the family.” 159 Women’s ability to own land in their own right may be inferred by the use of the gender neutral language of the Land Act. 160 Section 39. 161 Section 39, sub-sections 1-2, 4.


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land transaction to proceed.162 If the transaction is voided, and the purchaser/lessee can prove that they entered into the land transaction in good faith and were unaware that the seller/lessor did not secure the required consent, they are entitled to reclaim any money and/or other consideration provided.163 Finally, the Land Act (1998) requires that all land administration and management bodies have female representatives among their members. The composition of each District Land Board must be at least one-third women, Area Land Committees must include at least one woman among their four members, and the Uganda Land Commission must include at least one woman among its five members. In addition, at least one-third of CLA officers must be women.164 3. Legal framework: Liberia

3.1 Overview Between 1821 and the mid-1900’s, the liberated slaves from the United States of America (“Americo-Liberians”) who founded the modern nation-state of Liberia largely confined their rule and activities to the coast (the “littoral”), leaving indigenous Liberians to inhabit and administer inland areas (the “hinterland”) according to customary principles and leadership structures. As the Americo-Liberians slowly expanded their domain inland, they did not declare all land and resources to be the property of the state (as was common colonial practice). Instead, in 1923, they agreed to recognize tribes’ ownership of their land according to customary boundaries and allow local land administration and management according to customary paradigms. The Hinterland Law (An Act Approving the Revised Laws and Administrative Regulations for Governing the Hinterland) (1949) legalized this arrangement and allowed chiefs to formalize tribal land claims by applying for a deed in fee simple. Thirteen chiefdoms seized this opportunity and their combined 2.3 million acres (930,798 hectares) remain registered today in the name of these chiefdoms.165 In 1956, the Liberian government changed its policy and, under the Aboriginals Law (Title 1: Aboriginals Law, Liberian Code of Laws) (1956), claimed all lands in the name of the state. As a result, with the exception of those that had acquired deeds, tribes no longer owned their lands, but rather became “holders” and “users” of state land.166 Chiefdoms were, however, allowed to purchase back their lands and attain private ownership under the Public Lands Act (Title 34 of the Liberian Codes Revised) (1972-1973). Between 1956 and 1986, 19 chiefdoms successfully secured 2.5 million acres (1,011,736 hectares) under public land sale deeds, held collectively by community members.167 Since 1986, however, no chiefdom has secured title to their lands though this process. Today, as Liberia recovers from almost two decades of civil war, the government is working to attract investment and foster economic growth. One means of facilitating this is by granting forestry and mining concessions in the hinterland. A principal impediment is the absence of a clear legal framework regulating land rights in Liberia. While the administrative processes set out in the Public Lands Act (1972-1973) are considered valid, it is unclear whether the Hinterland Law (1949) or the Aboriginals Law (1956) is the applicable law governing the land rights of rural communities. Further, although the National Forestry Reform Law (2006) sets out important community-related provisions, the issue of community rights to natural resources within their customary domains is not addressed under Liberian law. A “Community Rights Law”, expected to address these issues, has been written and accepted by the Senate, however, its status is uncertain due to procedural irregularities. Finally, it should be noted that in August 2009

162 Section 39, sub-section 5. 163 Section 39, sub-section 3. 164 Section 57, sub-section 3; Section 65, sub-section 2; Section 47, sub-section 4. 165 L Alden Wily, So Who Owns the Forests?: An Investigation into Forest Ownership and customary Land Rights in Liberia, Sustainable Development Institute and FERN, (2007) 117. 166 Article 270, Aboriginals Law (Title 1: Aboriginals Law, Liberian Code of Laws) (1956). 167 Alden Wily, above n 165.


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President Sirleaf signed into law a mandate that establishes the creation of a Land Commission to investigate and research the current land rights situation in Liberia.168 3.2 The constitutional framework

The Liberia Constitution (1986) makes the following references to land issues:

The right to own land: “Every person shall have the right to own property alone as well as in association with others; provided that only Liberian citizens shall have the right to own real property within the Republic.”169

Natural resources: All mineral resources remain the property of the state.170

Joint marital property: Any property owned before marriage or privately acquired by one spouse over the course of the marriage as a result of his or her labors remains that spouse’s property and is not divided in the event of dissolution of marriage.171

Compulsory land acquisition: The state reserves the right of compulsory land acquisition, provided that the reasons for such expropriation are given, there is prompt payment of just compensation, and that the expropriation and compensation offered may be challenged in court. If the land taken for public use is no longer necessary for that purpose, the former owner will be given a right of first refusal to reacquire the property.172

3.3 The status of customary land rights in Liberia The Hinterlands Law (1949) established that tribes were eligible to apply for “Aboriginals Deeds” to establish documentary proof of their formal ownership over their lands.173 The full text of Article 66, “Lands” is as follows:

(a) Title to the territory of the Republic of Liberia vests in the sovereign State. The right and title of the respective tribes to lands of an adequate area for farming and other enterprises essential to the necessities of the tribe remain inherent in the tribe to be utilized by them for these purposes; and whether or not they have procured deeds from Government delimitating by metes and bounds such reserves, their rights and interest in and to such areas are a perfect reserve and give them title to the land against any person or persons whosoever.

(b) This land interest may be transmitted into communal holdings upon application of a tribe made to the Government for that purpose/and such communal holding would be surveyed at the expense of the tribe concerned.

(c) The communal holding will be vested in the Paramount Chief and Tribal Authority as Trustees for the tribe.

(d) The Trustees, however, cannot pass any fee simple title in these lands to any person whomsoever.

168 At the time of publication, individuals were being selected to serve on this Commission, but the information remains privileged. 169 Article 22(a). 170 Article 22(b). 171 Article 23(a). 172 Article 24. 173 It is unclear how many Aboriginals deeds were granted. Alden Wily reports, however, that when Liberia’s Forest Development Authority called for all existing Aboriginals deeds to be submitted, 14 Aboriginals deeds were furnished, covering 2,347,651 acres (950,466 hectares) in 13 chiefdom/clan areas located in 5 counties, Alden Wily, above n 165, 116. Interestingly, the possibility of applying for an Aboriginals deed, and not a Public Land Sale Deed, was presented to us by the Rivercess Land Commissioner. After describing the process of applying for a Public Land Sale Deed, the Commissioner proclaimed, well, if a community wanted to do this, they would follow the same process, but at the end they would get an Aboriginal Deed!” Strangely, while the majority of Aboriginals deeds submitted date from 1924 through 1956, five more were issued after 1956, up until 1982.


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(e) Should tribe become sufficiently advanced in the arts of civilization, they may petition the Government for a division of the land into family holdings, in which event the Government will grant deeds in fee simple to each family for an area of 25 acres in keeping with provision of the Act of 1905. (Emphasis added).

The extraordinary nature of this provision must be highlighted: by providing indigenous persons with full ownership (not simply a right of use and benefit) and regardless of whether a formal deed had been issued, this law offered wider protection to community land holdings than any other African country at any time in history.

The nature of the large collective entitlements as recognition of existing customary land rights needs to be emphasized. Traditional communities were not buying, nor even being allotted land… Instead their right and title to the land they already occupied was being formally acknowledged as legal title…It also needs to be appreciated how unusual it was for a government to offer communities such collective legal entitlement….174

The Aboriginals Law (1956) radically transformed these rights. All land not already held by deed became government land, and tribes, rather than having ownership over their lands, were entitled only to a right of possession or use over as “much of the public land in the area” as they needed for farming, etc.175 The full text of Articles 270 - 272 reads:

Article 270. Extent of Tribal Rights in Lands Each tribe is entitled to the use of as much of the public land in the area inhabited by it as is required for farming and other enterprises essential to tribal necessities. It shall have the right of possession of such land as against any person whomsoever. The President is authorized upon application of any Tribal Authority to have set out by metes and bounds or otherwise defined and described the territory of the tribe thus applying. A plot or map of such survey or description shall be filed for reference in the archives of the Department of state within six months after the completion of such survey. The omission of the tribe to have its territory so delimited shall not affect in any way its right to the use of the land.

Article 271. Communal Holdings The interest of a tribe in lands may be converted into communal holdings upon its application to the government. The proposed holdings shall be surveyed at the expense of the tribe making the application. The communal holding shall be vested in the members of the Tribal Authority as trustees for the tribe, but trustees shall not be able to pass title in fee simple in such lands to any person whomsoever.

Article 272. Division of tribal land into family holdings If a tribe shall become sufficiently advanced in civilization, it may petition the government for a division of the land into family holdings. On receiving such a petition, the government may grant deeds in fee simple to each family for an area of 25 acres.

(Emphasis added) Alden-Wiley explains the far-reaching nature of these changes:

The changes appear minor: a mere switch of the words ‘right and title to the land’ to ‘right of use and possession of the land’. In fact the changes represented silent land theft of a considerable scale. From having been consistently recognised since 1821 as the owners of their land (‘right and title’) (or in the parlance of early Anglo-American law, ‘owners of the soil’) Hinterland tribes people now became no more than possessors of the land. In its strictest legal sense ‘possession’ is significantly less than ‘right and title’. Its effect is to render possessors as lawful occupants and users. Land has to have an owner and now that customary ownership was not recognised, the land fell by default (or design) to the

174 Alden Wily, above n 165. 175 Aboriginals Law, Article, section 270.


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State. Government ceased to be the trustee of community owned lands (‘tribal land’) and became the owner. The distinction in tenure between ‘tribal land’ and ‘public land’ blurred.176

However, it is not clear which of these laws remains in force today. Critically, the full text of the Aboriginals Act (1956) was omitted from the Liberian Code of Law (1956) upon its revision in the mid-1970s.177 If this omission was accidental, as some research suggests, the Aboriginal Act (1956) remains operative. If the omission was intentional, however, this may imply that the Aboriginal Act (1956) was repealed and that the Hinterland Act (1949) remains valid. This is supported by reports that the Hinterland Act (1949) was being amended in 2003: according to Levi Banney, the Assistant Minister for Legal Affairs at the Ministry of Internal Affairs, “The Hinterland Law is absolutely still in force – it was being amended as recently as 2003.”178 However, some officials counter-argue that this is not sufficient proof. According to Alden Wily, Liberia’s previous Minister of Justice explained that the amendment of an invalid law is not particularly unusual for Liberia: “[b]ecause the laws are generally published and available only in hand bills, most of them have not been readily available, not even to legislators, causing that body to enact laws that are also inconsistent, repeal laws that were previously repealed, and reference laws no longer in existence”.179 Which law is in force is important; at issue is ownership over all non-deeded land in rural Liberia. Under the Hinterland Law (1949), the tribes have title to and own their land in perfect reserve, whether or not they have procured deeds. Under the Aboriginal Law (1956), the government owns all land and tribes are entitled to “the use of as much of the public land in the area” as they need. Yet while even senior government officials remain unsure of the legal status of these laws, the government has continued to administer land according to the more recent Public Lands Law (Title 34 of the Liberian Codes revised)(1972-1973) which operates under the presumption that non-deeded land is public land. 3.4 Purchasing public lands under the Public Lands Law (1972-1973) The Public Lands Law (Title 34 of the Liberian Codes Revised) (1972-1973) applies to all non-deeded land in Liberia. It sets out both the procedures for the sale of public land and details the current structure of state land administration in rural areas. 3.4.1 Purchasing public lands

As noted above, it is unclear whether the Aboriginals Law (1956), which converted all land to public ownership, remains valid. The Public Lands Law (1972-1973) adds to this confusion. Not only does it fail to define “public lands”, but it contains important contradictions. On the one hand, the law implies that the state is the owner of public lands (including the Hinterlands) by requiring that applicants purchase such land from the state. On the other, the application process requires that (i) tribal authorities consent to the sale of land and (ii) the Land Commissioner be satisfied that the land in question is not a portion of the Tribal Reserve (see box below). This implies that tribes are the owners of such land.180

176 Alden Wily, above n 165, 120. 177 Alden Wily, above n 165, 128. 178 Interview with L Banney, the Assistant Minister for Legal Affairs at the Ministry of Internal Affairs, June 17, 2009. 179 Alden Wily, above n 165, 131-132, citing her interview with Minister Banks, 2006. 180 Chapter 3, section 32. It should be noted that in 1974, the Land Registration Law was incorporated into the Chapter 8 of the Property Law (Liberian Codes Revised, Title 29)(1972-1973). According to Alden Wily, section 8.52(d) of this law is relevant to customary land rights, and describes customary land rights as an encumbrance on public lands that must be recorded and protected as “tribal reserves” or “communal holdings” in the event of systematic land registration, Alden Wily, above n 165, 139. The author was not, however, able to locate a copy of the Land Registration Law.


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The public lands sale deed procedure181

1. An applicant who wishes to “purchase public land located in the Hinterland shall first obtain consent of the Tribal Authority to have the parcel of land deeded to him by the Government”.”

2. The applicant presents proof of such consent (a certificate signed by the Paramount or Clan Chief) to the Land Commissioner. The Land Commissioner must then “satisfy himself that the parcel of land in question is not a portion of the Tribal Reserve, and that it is not otherwise owned or occupied by another person” and issues a certificate to this effect.

3. The applicant pays the required fee (50cLiberian/acre) to the Bureau of Revenues. 4. The applicant sends all of the abovementioned documents to the President and

request an order for the Public Surveyor to survey the land in question. 5. The Public Surveyor surveys the land in question. 6. The Land Commissioner prepares a formal deed, authenticates it, and presents it to

the applicant. 7. The applicant presents the deed to the President for signature. 8. Once signed, the applicant has the deed probated in the County Court.

Between 1942 and 1988 approximately 19 Public Land Sale Deeds were issued to various towns, districts, clans and chiefdoms, covering a total of 3,833,960 acres (1,552,210 hectares). 182 Such rights remain valid today. Since 1988, however, no chiefdom has secured a deed to their lands though this process, although a few private individuals, organizations and Liberian corporations have followed this process to its successful completion. Interestingly, the language in both the Hinterlands Law (1949) and the Aboriginals Law (1956) on the process of seeking to formalize communal holdings by tribes (with tribal leaders acting as trustees) is similar:

(b)This land interest may be transmitted into communal holdings upon application of a tribe made to the Government for that purpose/and such communal holding would be surveyed at the expense of the tribe concerned; (c) The communal holding will be vested in the Paramount Chief and Tribal Authority as Trustees for the tribe; (d) The Trustees, however, cannot pass any fee simple title in these lands to any person whomsoever.

Hinterlands Act (1949) §66 (b,c,d, emphasis added) The interest of a tribe in lands may be converted into communal holdings upon its application to the government. The proposed holdings shall be surveyed at the expense of the tribe making the application. The communal holding shall be vested in the members of the Tribal Authority as trustees for the tribe, but trustees shall not be able to pass title in fee simple in such lands to any person whomsoever.

Aboriginals Act (1956) §271 (emphasis added) The process of application and surveying described above in the Public Lands Law (1972-1973) may be argued to be the process necessary to transmit or convert tribal land interests into communal holdings, regardless of which law is in force. 3.4.2 Local land administration

The County Land Commissioner is responsible for shepherding the process of Public Land Sale Deeds, addressing land conflicts and addressing other land-related matters in the county. The Land Commissioner must also keep “an accurate chart of the plots and parcels of public land in the county,” keep note of all of the land that has been converted into private land under the

181 Public Lands Law (Title 34 of the Liberian Codes Revised) (1972-1973) Chapter 3, section 30; personal communications with D Weagar, Rivercess County Land Commissioner, June 2009. See also: Alden Wily above n 165, 141-142. 182 Alden Wily, above n 165, 128, citing: Liberia Forest Development Authority, Draft National Forest Management Strategy, Monrovia (2007).


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process of public land sale deed, and send quarterly reports to the Department of Justice concerning all transfers of title to public land in the county.183 Public Surveyors are appointed by the President, but remain employees of the Ministry of Lands, Mines and Energy. Their duties include: surveying public lands that have been requested for conversion to private ownership; drafting survey certificates describing the acreage, metes and bounds and other specific information pertaining to the land; and notifying the Land Commissioner of all surveys conducted. Public Surveyors must also send quarterly reports (with copies of the certificates issued) concerning all surveys of public land to both the Department of Justice and to the Court of the Superintendent, who forwards them to the Secretary of State. 3.4.3 Leasing of public lands

The President is authorized to lease any portion of public lands “not appropriated for other purposes”184 to any “foreign individual, corporation, or company for engaging in agricultural, mercantile, or mining operations in Liberia”185 for a period of up to 50 years, with a possible 50 year extension. All leases must be approved and ratified by the Legislature. 3.5 Forest management and administration As discussed above, vast amounts of land in Liberia are formally held by chiefdoms and clans under Aboriginal Deeds and Public Land Sale Deeds issued before 1988. While the exact number of such deeds is unclear, in 2006 Alden Wiley located 47 deeds, which cover a total of 6.8 million acres (2,751,922 hectares) or 29% of Liberia’s total land area.186 Such land ownership impeded the government from granting lucrative mining and forestry concessions to investors in these areas. In response, the Taylor Government passed the National Forestry Act (2000) which provided that while clans and chiefdoms retained ownership over deeded lands, the trees were deemed state property.187 This largely voided the rights and privileges of private land ownership as communities could not prevent corporations granted forestry concessions by the government from entering their lands and undertaking logging activities. In 2006, following the end of both Liberia’s civil war and UN sanctions against Liberian timber, the Johnson Sirleaf Government cancelled all existing forestry concessions and passed the National Forestry Reform Law (2006). Under this law, all forest resources (including trees) continued to be held in trust by the state for the benefit of the people,188 however, communities were granted the rights to manage their communal forest resources and own non-timber forest resources within their lands. The Forest Development Authority (the government body responsible for administration and management of Liberia’s forests and timber resources) has continued to grant logging concessions to investors relating to lands owned by rural communities. The law does not require any form of community consultation — including with those holding deeds — before such concessions are issued: “Where the Government has granted permission for the use of Forest Resources, no Land Owner or Occupant has a right to bar that use.”189 Land owners and occupiers, however, are entitled to “just, prompt, and adequate compensation for any diminution in the value of his property occasioned by the use.”190 Communities holding deeds also have the right to receive a portion of the profits accrued by the corporations granted logging concessions

183 Personal communications with D Weagar, Rivercess County Land Commissioner (June 2009); M Cuuta Feeta Gwee, Director of Cartographic Services, Ministry of Lands, Mines and Energy (June 2009). 184 Chapter 5, section 70. 185 Chapter 5, section 70. 186 Alden Wily, above n 165, 117, 128, 145. 187 National Forestry Act 2000 Sections 10.4. 188 Chapter 2, section 2.1. 189 Chapter 11, section 11.3 190 Chapter 11, section 11.3.


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within their lands. Communities may claim one third of the taxes, fees and rent that the state charges to logging concession holders.191 In addition, the law charges the Forest Development Authority with “undertak[ing] measures to institutionalize the participation of communities in forest management.”192 Such measures may include:

Recognition and protection of community land tenure rights;

Formulation of a code of conduct to govern relationships between [logging concession] holders and communities;

Completion of a social agreement between [logging concession] holders and communities that define the parties’ respective rights, roles, obligations, and benefits;

Provision for security of access by communities to non-timber forest products and other forest resources; and other assistance.193

The law also states that local communities must be fully engaged in the sustainable management of the forests of Liberia.194 To this end, the Forest Development Authority was mandated to issue regulations that grant user and management rights to local communities; transfer control over forest use to communities; and build local communities’ capacity for sustainable forest management.195 Such regulations must:

Specify the rights and responsibilities of communities with respect to ownership and uses of Forest Resources;

Establish mechanisms to promote informed community participation in forest-related decisions;

Create a framework that allows communities fair access to forest resources; and

Establish social, economic, and technical procedures for capacity building to ensure that communities can equitably participate in and benefit from sustainable management of the forests.196

The Forestry Development Authority was given one year from the passing of the National Forestry Reform Law (2006) to present the legislature with “a comprehensive law governing community rights with respect to Forest Lands”. However, due to various procedural complications and legislative and executive confusion, no law to this effect has been passed by the legislature and signed into law by the President. For the time being, therefore, community rights over forests (and therefore their lands) remain unclear and undefined.

191 Chapter 14.2 (b, c(ii), d); National Forestry Reform Law (2006). 192 Chapter 5, section 5.1(f). 193 Chapter 5, section 5.1(f); Chapter 5, section 5 “Commercial and Other Use of Forest Resources.” 194 Chapter 10, section 10.1(a). 195 Chapter 10, section 10.1. 196 Article 10.1(b).


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Annex I: Extracts of relevant Mozambican legislation

Only the sections and articles of the following laws and regulations relevant to community land rights have been included herein. 1. Land Law (1997) Article 1 Definitions: for the purpose of the present Law, the following shall mean: Local community: a grouping of families and individuals, living in a territorial area that is at the level of a locality or smaller, which seeks to safeguard their common interests through the protection of areas for habitation or agriculture, whether cultivated or lying fallow, forests, places of cultural importance, pastures, water sources and areas for expansion.

Right of land use and benefit: the right that individual or corporate persons and local communities acquire over the land in terms of the requirements and limitations of this Law.

Public domain: areas that are destined for the satisfaction of the public interest.

Family use: use of land for the purpose of meeting the needs of the household, using predominantly the labour capacity of the household.

Special licence: a document that authorises the carrying out of any economic activity within total or partial protection zones.

Land use map: a diagram that shows all occupation of the land, including the location of human activity and natural resources existing within a determined area.

Occupancy: form of acquisition of the right of use and benefit of land by national individual persons who have been using the land in good faith for at least ten years, or by local communities.

National corporate persons: any corporation or institution constituted and registered in terms of Mozambican legislation, with its head office in the Republic of Mozambique, in which at least fifty percent of its share capital belongs to national citizens, Mozambican corporations or institutions be they private or public.

Ownership of land: exclusive right of the state, established by the constitution of the Republic of Mozambique incorporating all rights of ownership, as well as the power and the ability to determine the conditions of its use and benefit by individual or corporate persons.

Title-holder: individual or corporate person who holds the right of land use and benefit under an authorisation or through occupancy.

Title: document issued by the general or urban Public Cadastre Services, proving right of land use and benefit. Article 3: General principle

The land is the property of the State and cannot be sold or otherwise alienated, mortgaged or encumbered. Article 4: State land fund

In the Republic of Mozambique, all land makes up the State Land Fund. Article 6: Public domain

The total and partial protection zones are part of the public domain.


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Article 9: Special licences for activities in total or partial protection zones

No rights of land use and benefit can be acquired in total and partial protections zones, although special licences may be issued for specific activities. Article 10: National persons

(1) National individual and corporate persons, men and women, as well as local communities may be holders of the right of land use and benefit.

(2) National individual and corporate persons may obtain the right of land use and

benefit individually or jointly with other individual and corporate persons by way of joint title holding.

(3) The right of land use and benefit of local communities adheres to the principles of

joint title holding for all the purposes of this Law. Article 12: Acquisition

(1) The right of land use and benefit is acquired by:

(a) Occupancy by individual persons and by local communities, in accordance with customary norms and practices which do not contradict the Constitution;

(b) Occupancy by individual national persons who have been using the land in good faith for at least ten years;

(c) Authorization of an application submitted by an individual or corporate person in the manner established by this Law.

Article 13: Titling

(1) A title shall be issued by the general or urban Public Cadastre Services. (2) The absence of title shall not prejudice the right of land use and benefit acquired

through occupancy in terms of sub-paragraphs a) and b) of the previous article. (3) The application for a title for the right of land use and benefit shall include a

statement by the local administrative authorities, preceded by consultation with the respective communities, for the purpose of confirming that the area is free and has no occupants.

(4) The title issued to local communities shall be issued in the name of the

community, which name shall be decided upon by the community. (5) Individual men and women who are members of a local community may request

individual titles, after the particular plot of land has been partitioned from the relevant community land.

Article 14: Registration

(1) The constitution, modification, transfer and termination of the right of land use and benefit are subject to registration.

(2) The absence of registration does not prejudice the right of land use and benefit

acquired through occupancy in terms of sub-paragraphs a) and b) of article 12, provided that it has been duly proved in terms of this Law.


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Article 15: Proof The right of land use and benefit can be proved by means of:

(a) Presentation of the respective title; (b) Testimonial proof presented by members, men and women of local

communities; (c) Expert evidence and other means permitted by law.

Article 16: Transfer

(1) The right of land use and benefit may be transferred by inheritance, without distinction by gender.

(2) The titleholders of the right of land use and benefit may transfer, inter vivos,

infrastructures, structures and improvements existing on the land

(3) By means of a public notarial deed, preceded by authorisation from the competent state entity.

(4) In the cases referred to in the preceding paragraph, the transfer shall be

recorded on the respective title.

(5) In the case of urban tenements, the transfer of the immovable property includes the transfer of the right of land use and benefit of the respective plot.

(6) The titleholder of the right of land use and benefit may mortgage the immovable

assets and improvements which he/she has duly been authorized to make on the land or which he/she has legally acquired a right of ownership over.

Article 17: Term

(1) The right of land use and benefit for purposes of economic activities is subject to a maximum term of 50 years, which is renewable for an equal period upon application by an interested party. After the renewal period, a new application must be presented.

(2) In the following circumstances, the right of land use and benefit is not subject to

a time limit:

(a) Where the right was acquired by local communities through occupancy; (b) Where it is intended for personal residential purposes; (c) Where national individual persons intend it for family use.

Article 22: Areas not covered by urbanisation plans

In areas that are not covered by urbanisation plans:

(1) The Provincial Governors have the competence to:

(a) Authorise applications for land use and benefit for areas that do not exceed 1 000 hectares;

(b) Authorise special licences in partial protection zones; (c) Issue opinions regarding applications for land use and benefit in areas that fall

within the competence of the Minister of Agriculture and Fisheries.

(2) The Minister of Agriculture and Fisheries has the competence to:

(a) Authorise applications for land use and benefit for areas that are between 1 000 and 10 000 hectares;

(b) Authorise special licences in total protection zones;


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(c) Issue opinions regarding applications for land use and benefit regarding applications that exceed his competence for approval.

(3) The Council of Ministers has the competence to:

(a) Authorise applications for land use and benefit in areas which exceed the competence of the Minister of Agriculture and Fisheries, provided they are within a land use plan or could be integrated in a land use map;

(b) Create, modify or extinguish total or partial protection zones; (c) Decide on the use of the bed of territorial waters and the continental platform.

Article 24: Local communities

(1) In rural areas the local communities shall participate in:

(a) The management of natural resources; (b) The resolution of conflicts; (c) The process of titling, as established in paragraph 3 of article 13 of this Law; (d) The identification and definition of boundaries of the land that the

communities occupy.

(2) In exercising the competences listed in a) and b) in paragraph 1 of the present article, the local communities shall use, among others, customary norms and practices.

Article 29: Free use of land

The use and benefit of land is free when it is intended for:

(a) The State and its institutions; (b) Associations that are for public uses and are recognised by the Council of

Ministers as such; (c) Family uses, local communities and the individual persons who belong to

them; (d) National small-scale agricultural and livestock cooperatives and associations.

Article 30: Representation and action of local communities

The mechanisms for representation of, and action by, local communities, with regard to the rights of land use and benefit, shall be established by law. Article 32: Application of the law

(1) The rights of land use and benefit, whether acquired through occupancy or approval of an application, shall now be subject to the present Law, subject to any acquired rights.

(2) Conflicts over land shall be resolved in a Mozambican forum.

2. Land Law Regulations, Decree 66/98, 8th of December Article 9: Acquisition of the right of land use and benefit by occupancy by local communities

(1) Local communities who occupy land according to customary practices shall acquire the right of land use and benefit.

(2) Excluded from the foregoing are those cases in which such occupancy takes place

in areas that are subject to legal reservation for any purpose or occurs in partial protection zones.


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(3) Areas over which a right of land use and benefit has been acquired by occupancy according to customary practices may, when necessary or at the request of the local communities, be identified and recorded in the National Land Cadastre, in accordance with requirements to be defined in a Technical Annex.

Article 10: Acquisition of the right of land use and benefit by occupancy in good faith by National individuals

(1) National, individual persons who, in good faith, have used a land area for at least ten years shall acquire the right of land use and benefit.

(2) Excluded from the foregoing are those cases in which such occupancy occurs in

areas that are subject to a legal reservation for any purpose or occurs in partial protection zones.

(3) Areas over which a right of land use and benefit has been acquired by occupancy

in good faith may, when necessary or at the request of the interested parties, be identified and recorded in the National Land Cadastre, in accordance with requirements to be defined in a Technical Annex.

Article 11: Acquisition of the right of land use and benefit by authorisation of an application

Definitive authorisation of an application to acquire a right of land use and benefit submitted by national or foreign, individual or corporate persons is granted under the provisions of article 31 of these Regulations. Article 12: Joint title holders

Joint holding of the right of land use and benefit by national, individual or corporate persons or by local communities is governed by the rules on co-ownership property established in articles 1403 et seq. of the Civil Code. Article 13: Rights of title holders

(1) Holders of the right of land use and benefit, whether acquired by occupancy or by authorisation of an application, shall have the following rights:

(a) to defend their rights, in accordance with the law, against any encroachment by another person;

(b) to have access to their parcel of land and to public water resources through neighbouring parcels, and to create the servitudes necessary for this purpose.

(2) Applicants or holders of the right of land use and benefit may submit their title or

provisional authorisation certificate to credit institutions in the context of loan applications.

Article 14: Duties of title holders

Holders of the right of land use and benefit, whether acquired by occupancy or by authorisation of an application, shall have the following duties:

(a) to use the land with respect for the principles defined in the Constitution and other legislation in force and, in the case of economic activities, in accordance with the exploitation plan and in accordance with the provisions of the legislation that governs the carrying out of the activity in question;

(b) to allow access through their parcel of land to neighbours who do not have access to the public road or public water resources, and to create the servitudes necessary for this purpose;

(c) to respect the servitudes that have been created and registered according to paragraph 2 of article 17 of these Regulations and the rights of access and public use connected therewith;


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(d) to allow the execution of operations and/or the installation of accessories and equipment conducted under prospecting and reconnaissance mining licenses, mining concessions or mining certificates, against just compensation;

(e) to maintain boundary, triangulation, cadastral and other markers located in the respective area which serve as points of reference or support;

(f) to collaborate with the Cadastre Services, sworn surveyors and divisional supervision officers.

Article 15: Transactions in respect of rural tenements

(1) The partitioning of community areas for the purpose of issuing individualised titles to individual members of such communities shall not be exempt from the consultation process and shall not affect areas of common use.

(2) The purchase and sale of infrastructure, structures and improvements located on

rural tenements does not imply the automatic transfer of the right of land use and benefit, which is subject to approval by the same entity that authorised the application. An application for transfer shall be submitted beforehand to the cadastre services, together with proof of payment of annual fees and proof of fulfilment of the exploitation plan, where applicable.

(3) The public deed of sale shall be executed after the certificate of authorization of

the transfer, issued by the Cadastre Services, is presented.

(4) Contracts for the transfer of the land exploitation operation are likewise subject to prior approval by the entity that authorised the application for acquisition or recognition of the right of land use and benefit. In the case of local communities, such contracts are also subject to consent by the community members.

(5) Contracts for the transfer of the land exploitation operation shall be valid only

when executed by public deed. Article 17: Public interest servitudes

(1) If the right of land use and benefit over a plot of land is restricted owing to the need to use part of the plot for the installation of air, surface or subterranean conduits for electricity, telecommunications, petroleum, gas, water or others, then the public or private entity shall compensate the title holder with an amount that represents the actual loss arising from the loss of use of the affected part, and a servitude shall be created over such part of the plot and shall be registered in the National Land Cadastre and noted on the respective land title.

(2) Servitudes in respect of public and community ways of access and access for

livestock, which have been established by customary practice, shall be registered in the National Land Cadastre.

Article 21: Proof

(1) The right of land use and benefit may be proved by:

(a) a certified extract of the Register; (b) testimonial evidence submitted by someone who has knowledge of the

acquisition of the right by occupancy; (c) expert evidence and other methods permitted by law.

(2) In the case of a claim to the right of land use and benefit by two parties, where

both parties present testimonial evidence, the party who demonstrates the earlier acquisition shall prevail, except where the [subsequent] acquisition was in good faith and endured for at least ten years.


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Article 22: Public Assistance

The Cadastre Services shall provide interested parties with information and clarification regarding:

(a) applicable legislation; (b) the documentation required to prepare an application; (c) the costs and applicable fees for an application process; (d) the requirements of the demarcation process; (e) the benefits, impediments or restrictions to which the interested parties (f) may be subject or entitled; (g) the procedures for appeals and complaints.

Article 23: Configuration of the land plot

The identification of parcels of land shall be standardised in such a way as to facilitate the management of information regarding such parcels.

Parcels shall have, whenever possible, a regular configuration. The Cadastre Services shall have the authority to order the alteration of the configuration, before demarcation, where this standard can be applied.

The border of land abutting a partial protection zone may not exceed one third of the normal to that boarder.

Once the land plot has been demarcated, it cannot be divided where such division would result in damage to its economic utility.

Article 24: Procedure in respect of the right of land use and benefit acquired under an authorisation

(1) An application for the right of land use and benefit acquired under an authorisation shall contain:

(a) in the case of an individual person, the identification document of the applicant and, in the case of a corporate person, the articles of association;

(b) a sketch of the location of the land; (c) the descriptive report; (d) an indication of the nature and dimension of the undertaking that the

applicant proposes to carry out; (e) the opinion of the District Administrator, after consultations with the local

community; (f) a public notice and proof that such notice has been displayed in the

headquarters of the district in question and at the location itself, during a period of thirty days;

(g) receipt as proof of deposit of the payment of the provisional authorization fee.

Article 27: Opinion of the District Administration and consultation with the local communities

(1) The Cadastre Services shall send a copy of the application to the Administrator of the district in question, for the purposes of publication of a Notice about the application and for his opinion. The Cadastre Services shall provide such Administrator with all the technical assistance necessary to enable him to gather information about the land area and the neighbouring lands.

(2) A joint operation shall be carried out, involving the Cadastre Services, the District Administrator or his representative, and the local communities. The outcome of this work shall be written up and signed by a minimum of three and a maximum of nine representatives of the local community, as well as by the owners or occupiers of neighbouring land.


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(3) The opinion of the District Administrator shall refer to the existence or otherwise of rights of land use and benefit acquired by occupancy in respect of the area applied for. In the event that the area applied for is subject to other rights, the opinion shall contain the terms under which the partnership between the applicant and the holders of the right of land use and benefit acquired by occupancy shall be governed.

Article 34: Procedures in respect of the right of land use and benefit acquired by occupancy in good faith

(1) The application process in respect of the right of land use and benefit acquired by individual national persons by occupancy in good faith shall include the technical demarcation file and the documents referred to in paragraphs 1 and 2 of article 24, as applicable.

(2) The sketch, descriptive report and provisional authorisation are dispensed with.

Article 35: Procedure in respect of the right of land use and benefit acquired by occupancy by local communities

The application process for the right of land use and benefit acquired local communities shall contain:

(a) the name of the community; (b) the technical file in respect of demarcation; (c) the opinion of the District Administrator; (d) the decision of the Governor of the Province; (e) a receipt as proof of deposit of the payment of the costs of the application.

Article 36: Contents of the title

(1) The title shall contain the following items:

(a) identification of the entity that authorised the application for issuance of the title and the date of the authorisation order;

(b) the title number; (c) identification of the title holder; (d) the area and the geometric definition of the area, with the respective co-

ordinates, location, identification number of the parcel in the cadastral register, as well as the identification numbers of the adjacent parcels;

(e) time period limitations to which the right of land use and benefit is subject; (f) type or types of use for which the right of land use and benefit was acquired; (g) description of existing improvements; (h) fees payable; (i) date and place of issuance; (j) signature under seal of the person in charge of the Services that issue the

title.

(2) The transfer of infrastructures, structures and improvements on rural tenements, the transfer of urban tenements, joint title holding, renewals, charges and encumbrances and other legally executed transactions shall be noted on the title.


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3. Technical Annex to the Land Law Regulations Article 1: Scope

This Technical Annex shall apply to:

(1) The delimitation of areas that are occupied by local communities according to customary practices;

(2) The delimitation of areas which are occupied in good faith for at least ten years

by national individual persons;

(3) The demarcation, pursuant to an application for title, of:

(a) Areas occupied by local communities according to customary practices; (b) Areas occupied in good faith for at least ten years by national individual

persons; (c) Areas in respect of which an application for the acquisition of the right of land

use and benefit has been made either by national or foreign individual or corporate persons, and where provisional authority has been issued.

Article 2: Definitions

For the purposes of this Technical Annex, the following shall mean: Demarcation notice: a report describing the work executed including the information regarding technical and auxiliary staff involved, the time of execution, the technology and measuring instruments used, the topographical assistance work, the location, adjustments and compensations made, the total dimensions, the perimeter and number of markers staked. This report shall be accompanied by a declaration made either by the titleholder or by the applicant stating that he/she will maintain the markers.

Cartogram: an approximate graphic representation regarding the location of the area, containing topological information and other details indicated on the participatory maps, which is a result of consensus being reached by the community on all the various participatory maps drawn.

Delimitation: identification of the boundaries of the areas occupied by local communities or national individual persons, who are and for at least ten years have been using the land in good faith, including the entry of the information into the National Land Cadastre.

Partial Delimitation: identification of part of the perimeter of a certain area, including only the boundaries which are in conflict or the boundaries where new economic activities and/or new development projects and plans are to be initiated.

Demarcation: transfer to the land of information contained in the sketch and its descriptive report regarding boundaries of a parcel of land, within the scope of an application for title.

Participatory Appraisal: collection of information given by a local community regarding: (a) its history; culture and social organisation; (b) the use of the land and other natural resources and the mechanisms for its management; (c) spatial occupation; (d) population dynamics; (e) possible conflicts and the mechanisms for their resolution, for the purposes of drawing up the cartogram.

Sketch: the diagram on a conventional scale representing the configuration of a parcel of land containing drawn or written references enabling it to be located in the Cadastral Atlas including, when necessary, the geo-referencing of points and/or boundary lines that are not visible on existing topographical maps. The sketch is always accompanied by a descriptive report.

Participatory map: a drawing designed by an interest group of the community, namely men, women, young people, elders and others, which shows in an initial and relative way, not to scale, the permanent natural or man-made landmarks used as boundaries, the identification and location of natural resources, reference points where conflicts regarding natural resources take place or any other boundaries or relevant features.


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Descriptive report of the sketch: written information regarding (a) the description of the boundary points; (b) boundary lines; (c) existing servitudes.

Occupancy: form of acquisition of the right of land use and benefit by national individual persons who, in good faith, are and have been using the land for at least ten years or by local communities.

Topographical plan: drawing of a demarcated parcel of land, containing its scale, its boundaries with numbered points and other particulars for the location of boundaries, existing servitudes, dimension, number of the parcel and of neighbouring parcels and the number of the official map on a scale of 1:50 000 or 1:250 000 which covers the relevant parcel.

Technical reconnaissance: procedure carried out on the basis of the sketch and descriptive report to verify the boundaries of the parcel to be demarcated, including verification of the visibility between boundary points following the applied technology, location of the existing geodetic points, calculation of the number of markers needed and an estimate of the demarcation costs.

Title: the document issued by Cadastre Services confirming the right of land use and benefit. Article 3: Realisation of economic activities and other undertakings

The delimitation and/or demarcation of areas occupied by local communities shall not prevent economic activities or other undertakings from being carried out, provided that consent from the communities is obtained. Article 4: Measurements, calculations and boundaries

(1) Measurements shall be carried out and co-ordinates calculated at boundary points that do not exist on topographical maps.

(2) The precision of measurements and calculations shall be adjusted to the position, dimension and type of use of the area according to the rules contained in the instructions issued by Cadastre Services.

(3) In the case of delimitation of areas occupied by local communities, the requirement of measurements in the sketch shall not be less than one second, which is to say approximately thirty meters.

(4) When there are no natural or man-made boundaries of a permanent nature, the direction of the boundary is ensured through other physical markers such as trees, piles of stones or concrete markers. In the case of local communities, new hedges of trees or shrubs may be planted in the presence of neighbouring communities.

Article 5: Phases of delimitation

(1) The delimitation of areas occupied by local communities comprises the following:

(a) Information and dissemination; (b) Participatory appraisal; (c) The sketch and descriptive report; (d) Feedback; (e) Entry into the National Land Cadastre

(2) To ensure representativity of results and consensus regarding the delimitation, in the aforementioned phases (a) to (d) in paragraph 1 of this article, the working group that assists in the demarcation shall work with men and women and with different socio-economic and age groups within local communities.

(3) The neighbours participate in the delimitation, as their participation is mandatory

in drawing up the sketch and its descriptive report as well as in the Feedback.


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Article 6: Execution of the delimitation

(1) For carrying out the various phases of the delimitation, the following shall be observed:

(2) The information and dissemination and participatory appraisal phases, the preparation of the sketch and its descriptive report and the Feedback, as set out in articles 8, 10, 11 and 12 of this Technical Annex, shall be completed under the direction of an advisory working group with specific training on the procedures prescribed in this Technical Annex.

(3) In the phases of preparation of the sketch and descriptive report and the Feedback as described in articles 11 and 12 of this Technical Annex, it shall be mandatory for a technician with basic knowledge of topography to participate, which technician may be an employee of the Cadastre Services or in private practice, in which case his/her relevant professional certificate shall be appended.

(4) The Forms and Minutes referred to in paragraphs 2 and 3 of article 8 and paragraphs 2 and 3 of article 12 shall be signed by not less than three and not more than nine men and women from the communities, chosen at a public meeting.

(5) The entry into the National Land Cadastre phase shall be completed by the Cadastre Services.

Article 7: Priorities, participation and costs

(1) The delimitation of local community areas is prioritised in the following cases:

(a) Where there are conflicts regarding the use of the land and/or natural resources;

(b) In local community areas where the State and/or other investors intend to initiate new economic activities and/or development projects or plans;

(c) On request from local communities.

(2) In the cases referred to in (a) and (b) of this article, partial delimitation of the areas may be carried out.

(3) The local communities shall actively participate in the delimitation of areas that

they occupy. (4) The costs of the delimitation shall be borne according to the following criteria:

(a) When the delimitation is effected due to the existence of conflicts, the division of costs shall be decided on by the local Public Administration;

(b) When the delimitation is effected due to new economic activities and/or development projects and plans, the investors shall bear the costs.

Article 8: Information and dissemination

(1) The delimitation is initiated by the provision of information regarding:

(a) The reasons for the process; (b) Relevant provisions of the Land Law and the Regulations thereof; (c) Objectives and methodology of the delimitation; (d) Advantages and implications.

(2) The contents and participation in the information sessions shall be recorded in Form 1 of this Technical Annex.

(3) Form 2 of this Technical Annex and the minutes of the information and

dissemination sessions shall be signed by the local community representatives as well as the District Administrator or his/her representative. The minutes shall be


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signed in triplicate with the local community, the District Administration and the working group each retaining a copy thereof.

Article 10: Participatory appraisal

(1) Based on the information provided by the community, the community shall produce a minimum of two participatory maps, which indicate the boundaries between a local community and its neighbours.

(2) When there are no natural or man-made boundaries of a permanent nature, the

community shall indicate any other physical markers, such as trees or piles of stones, which indicate the boundaries of the area it occupies.

(3) Based on the participatory maps the cartogram is drawn up. (4) The outcome of the participatory appraisal shall comprise a report containing

information, in conformity with Form 3 of this Technical Annex, as well as the cartogram.

Article 11: Sketch and descriptive report

(1) The details represented in the cartogram shall be specified and completed in the sketch and its descriptive report.

(2) For the purposes of paragraph 1 of this article, field work shall be carried out

involving the following:

(a) The local community; (b) The working group, which shall include a technician with basic knowledge of

topography and who shall have the information contained in the Cadastral Atlas

(c) The neighbours. (3) The sketch shall contain the details already available in the Cadastral Atlas and

the geo-reference points as well as servitudes identified during the participatory appraisal and described in article 17 of the Land Law Regulations.

(4) The descriptive report shall be prepared in conformity with Form 4 of this

Technical Annex. Article 12: Feedback

(1) Feedback is the provision of information to the local community and neighbours/neighbouring communities.

(2) The Feedback is mandatory for the provision of information regarding the sketch

and its descriptive report, in conformity with Form 5 of this Technical Annex. (3) The minutes of the Feedback session referred to in paragraph 2 of this article

shall be signed by community representatives and by the neighbours/ neighbouring communities as well as by the District Administrator or his/her representative. The minutes are signed in triplicate, with the local community, the District Administration and the working group each retaining one copy.

Article 13: Entry into the National Land Cadastre

(1) After completion of the phases referred to in a) and d) of paragraph 1 of article 5 of this Technical Annex, the documents set out below shall be delivered to Cadastre Services which shall organize and enumerate the cadastral process and


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verify that the applicable rules have been complied with in accordance with Form 6 of this Technical Annex:

(a) Form 1 regarding information and dissemination; (b) Form 2 regarding the approval by the local community of the delimitation; (c) Form 3 regarding the participatory appraisal; (d) The sketch and Form 4 regarding its descriptive report (e) Form 5 regarding the Feedback.

(2) The entry into the National Land Cadastre shall comprise of:

(a) Projection of the sketch in the Cadastral Atlas; (b) Registration in the relevant book; (c) Filing of the cadastral process.

(3) The registration shall comprise:

(a) Reference to the projection in the Cadastral Atlas; (b) Number of the cadastral process; (c) Identification of the parcel by its number, an indication of its area and its

location; (d) Name of the local community and its neighbours/neighbouring communities; (e) Date.

(4) After registration, Cadastre Services shall officially submit a certificate that shall

contain the registration details, which is then delivered to the local community. (5) The certificate referred to in the previous paragraph of this article shall be issued

within a maximum period of sixty days after delivery of documentation to Cadastre Services.

Article 14: Phases of delimitation

The provisions of Chapter II of this Technical Annex are applicable to delimitation in areas that are occupied in good faith by national individual persons. Article 15: Objective

(1) The objective of demarcation is to establish on the ground such conditions as are necessary for:

(a) The issuing of a title proving the right of land use and benefit acquired through occupancy by local communities.

(b) The issuing of a title proving the right of land use and benefit acquired through occupancy in good faith by national individual persons who have been using the land for at least ten years.

(c) The determination of the exact area of a parcel on which an individual or corporate national or foreign person intends to exercise economic activities or carry out an enterprise, after the issuing of provisional authorization pursuant to articles 28 and 29 of the Land Law Regulations.

(2) The lack of demarcation shall not affect the right of land use and benefit acquired

through occupancy by local communities or national individual persons, but when they intend to have a title issued, the rules of this chapter shall be followed.

Article 16: Boundaries

(1) The boundaries are identified in the presence of the land surveyor, the titleholder or applicant or the neighbours.


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(2) In the case of a discrepancy between the boundaries of community areas established through customary practices and those that were measured, the boundaries established by customary practice shall prevail.

(3) The boundaries of areas identified in the delimitation shall not be altered in the

demarcation in such a way that it would be detrimental to the communities or good faith occupiers.

(4) If during the demarcation of a parcel of land a discrepancy is identified in relation

to the details of a prior demarcation of a neighbouring parcel, the following rules shall apply:

(a) The boundaries established on the ground shall prevail; (b) If no boundaries have been established on the ground, the description of the

boundaries contained in the cadastral process shall be resorted to; (c) In the event that the description in the cadastral process does not lead to a

resolution of the discrepancy, resort shall be had to other factual evidence. Article 17: Local communities

The titling of areas occupied by communities shall comprise:

(a) Information and dissemination; (b) Participatory appraisal (c) The sketch and its descriptive report; (d) Feedback; (e) Process of demarcation in accordance with the provisions of articles 20 and 21

of this Technical Annex. Article 18: Good faith occupants

The titling of areas occupied by national individual persons in good faith shall contain:

(a) Information and dissemination; (b) Participatory Appraisal; (c) The sketch and its descriptive report; (d) Feedback; (e) Application of demarcation in accordance with the provisions of articles 20 and

21 of this Technical Annex. Article 19: Authorisation of an application for the right of land use and benefit

The demarcation of a parcel of land which is the subject of an application for the acquisition of the right of land use and benefit, which already has had provisional authority issued pursuant to articles 28 and 29 of the Land Law Regulations is made in accordance with the provisions of articles 20 and 21 of this Technical Annex. Article 20: Application for demarcation

The application for demarcation shall contain:

(a) Technical reconnaissance; (b) Staking-out of markers; (c) Measurements; (d) Preparation of a technical file.

Article 20: Application for demarcation197

(1) The technical file shall include technical and descriptive details.

197 Repetition directly copied from the English translation, see A Frey, Land Law Legislation, 2004.


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(2) The descriptive section shall contain the demarcation notice. (3) The technical section shall contain:

(a) Topographic map; (b) Diagram of the links to the geodetic network; (c) Details of the measurements; (d) Calculation of the area of the parcel; (e) List of the co-ordinates.


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Annex II: Extracts of relevant Ugandan legislation

Only the sections and articles of the following laws and regulations relevant to community land rights have been included herein. 1. Land Act (1998) (Ch 227)

1. Interpretation

In this Act, unless the context otherwise requires—

(a) “alienated” means alienated by the grant of an estate in freehold or leasehold which is registered under the Registration of Titles Act, and “unalienated” shall be interpreted accordingly;

(b) “association” means a communal land association established by section 15; (c) “authorised undertaker” means a person or authority authorised or required

by law to execute public works; (d) “board” means a district land board established by article 240 of the

Constitution and referred to in section 56; (e) “bona fide occupant” and “lawful occupant” have the meanings assigned to

them in section 29; (f) “certificate of customary ownership” means a certificate issued under section

4; (g) “certificate of occupancy” means a certificate issued under section 33; (h) “Commission” means the Uganda Land Commission established by article 238

of the Constitution and referred to in section 46; (i) “committee” means a land committee established by section 64; (j) “community” means an indigenous community of Uganda as provided for in

the Third Schedule to the Constitution, or any clan or subclan of any such indigenous community communally occupying, using or managing land;

(k) “currency point” has the value assigned to it in the Schedule to this Act; (l) “customary tenure” means a system of land tenure regulated by (m) customary rules which are limited in their operation to a particular description

or class of persons the incidents of which are described in section 3; (n) “former controlling authority” means the Uganda Land Commission or a

designated authority in existence before the coming into force of the Constitution;

(o) “former designated authority” means a city council, municipal council, town council or town board established in a designated urban area;

(p) “former public land” means land previously administered under the Public Lands Act, 1969, prior to the coming into force of the Land Reform Decree, 1975;

(q) “freehold land tenure” means the holding of registered land in perpetuity subject to statutory and common law qualifications the incidents of which are described in section 3;

(r) “gazetted” means published in the official gazette by either a statutory instrument or a legal notice issued by the responsible Minister;

(s) “land tribunal” means a land tribunal established under section 74, 80 or 81; (t) “leasehold land tenure” means the holding of land for a given period from a

specified date of commencement, on such terms and conditions as may be agreed upon by the lessor and lessee, the incidents of which are described in section 3, and includes a sublease;

(u) “mailo land tenure” means the holding of registered land in perpetuity and having roots in the allotment of land pursuant to the 1900 Uganda Agreement and subject to statutory qualifications, the incidents of which are described in section 3;


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“mediator” has the meaning assigned to it in section 89; “Minister” means the Minister responsible for lands;

(v) “public works” means the construction of railways, roads, canals or airfields; the placing of telegraph lines and electric lines, and the erection of supports for those lines; the laying of sewer and water pipes; the construction of drains; the prospecting, exploration, mining and extraction of petroleum resources; the construction of dams and hydropower plants; the establishment of hydrogeological, meteorological and water quality stations; the construction of water and sewerage treatment plants, storage reservoirs and pumping stations; and any other works, construction of public buildings and other public institutions, declared by statutory instrument to be public works, the construction of buildings for public use, such as hospitals and universities, for the purposes of section 73; and any other works ancillary or incidental to the foregoing;

(w) “recorder” means the recorder established by section 68; (x) “Register Book” means the book kept by the registrar in accordance with the

Registration of Titles Act; (y) “registered owner” means the owner of registered land registered in

accordance with the Registration of Titles Act; (z) “registrable interest” means an interest registrable under the Registration of

Titles Act, namely, mailo, freehold, leasehold and subleasehold, but includes a certificate of customary tenure and a certificate of occupancy;

(aa) “registrar” means the registrar of titles appointed under the Registration of Titles Act;

(bb) “road” means a road reserve as defined in the Roads Act; (cc) “tenant by occupancy” means the lawful or bona fide occupant declared to be

a tenant by occupancy by section 31; (dd) “urban area” means a gazetted urban area.

2. Land ownership

Subject to article 237 of the Constitution, all land in Uganda shall vest in the citizens of Uganda and shall be owned in accordance with the following land tenure systems:

(a) customary; (b) freehold; (c) mailo; and (d) easehold.

3. Incidents of forms of tenure

(1) Customary tenure is a form of tenure:

(a) applicable to a specific area of land and a specific description or class of persons;

(b) subject to section 27, governed by rules generally accepted as binding and authoritative by the class of persons to which it applies;

(c) applicable to any persons acquiring land in that area in accordance with those rules;

(d) subject to section 27, characterised by local customary regulation; (e) applying local customary regulation and management to individual and

household ownership, use and occupation of, and transactions in, land; (f) providing for communal ownership and use of land; (g) in which parcels of land may be recognised as subdivisions (h) belonging to a person, a family or a traditional institution; and (i) which is owned in perpetuity.


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(2) Freehold tenure is a form of tenure deriving its legality from the Constitution and its incidents from the written law which:

(a) involves the holding of registered land in perpetuity or for a period less than perpetuity which may be fixed by a condition;

(b) enables the holder to exercise, subject to the law, full powers of ownership of land, including but not necessarily limited to:

(i) using and developing the land for any lawful purpose; (ii) taking and using any and all produce from the land; (iii) entering into any transaction in connection with the land, including but not

limited to selling, leasing, mortgaging or pledging, subdividing creating rights and interests for other people in the land and creating trusts of the land;

(iv) disposing of the land to any person by will.

(3) For the avoidance of doubt, a freehold title may be created which is subject to conditions, restrictions or limitations which may be positive or negative in their application, applicable to any of the incidents of the tenure.

(4) Mailo tenure is a form of tenure deriving its legality from the Constitution and its

incidents from the written law which:

(a) involves the holding of registered land in perpetuity; (b) permits the separation of ownership of land from the ownership of

developments on land made by a lawful or bona fide occupant; and (c) enables the holder, subject to the customary and statutory rights of those

persons lawful or bona fide in occupation of the land at the time that the tenure was created and their successors in title, to exercise all the powers of ownership of the owner of land held of a freehold title set out in subsections (2) and (3) and subject to the same possibility of conditions, restrictions and limitations, positive or negative in their application, as are referred to in those subsections.

(5) Leasehold tenure is a form of tenure:

(a) created either by contract or by operation of law; (b) the terms and conditions of which may be regulated by law to the exclusion of

any contractual agreement reached between the parties; (c) under which one person, namely the landlord or lessor, grants or is deemed to

have granted another person, namely the tenant or lessee, exclusive possession of land usually but not necessarily for a period defined, directly or indirectly, by reference to a specific date of commencement and a specific date of ending;

(d) usually but not necessarily in return for a rent which may be for a capital sum known as a premium or for both a rent and a premium but may be in return for services or may be free of any required return;

(e) under which both the landlord and the tenant may, subject to the terms and conditions of the lease and having due regard for the interests of the other party, exercise such of the powers of a freehold owner as are appropriate and possible given the specific nature of a leasehold tenure.

4. Certificate of customary ownership

Any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land in accordance with this Act.

A certificate for customary ownership shall be in the prescribed form and shall be issued by the board.


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An application for a certificate of customary ownership shall be in the prescribed form and shall be submitted, together with the prescribed fee, to the committee of the parish in which the land the subject of the application is situated.

5. Functions of committee on application for certificate of customary ownership

(1) On receipt of an application for a certificate of customary ownership, the committee shall:

(a) determine, verify and mark the boundaries of all interests in the land which is the subject of the application;

(b) demarcate rights of way and other easements over the land the subject of the application and any adjacent land which benefit or burden or are reputed to benefit or burden any such land or which it considers will be necessary for the more beneficial occupation of any such land in respect of which an application may be granted or any adjacent land;

(c) adjudicate upon and decide in accordance with and applying customary law any question or matter concerning the land referred to it by any person with an interest in land which is the subject of an application or any land adjacent to it, including the question of whether the customary law applicable to the land the subject of the application recognises individual rights to the occupation and use of land and, if so, subject to what conditions and limitations;

(d) record that if any person has, or two or more persons have, exercised rights under customary law over the land the subject of the application that should be recognised as ownership of that land, that person or those persons, as the case may be, shall, prima facie, be entitled to be issued with a certificate of customary ownership and in the case of two or more persons, the shares of each person and the nature of their ownership;

(e) if any persons have exercised any right over the land or any part of it or are entitled to any interest in the land or part of it not amounting to ownership, including any lease, right of occupation or use, charge, pledge or other encumbrance whether by virtue of customary law or otherwise, hereafter in this Act referred to as a third party right, record the nature, incidents and extent of that third party right and the persons entitled to the benefit of it;

(f) advise the board upon any question of customary law; (g) safeguard the interests and rights in the land which is the subject of the

application of women, absent persons, minors and persons with or under a disability;

(h) take account of any interest in land in respect of which, for anyreason, no claim has been made;

(i) exercise such other functions as may be prescribed. (2) The committee shall, in the exercise of any of its powers under this section which

involve a hearing, comply with the rules of natural justice and, subject to that duty, may:

(a) hear evidence which would otherwise not be admissible in a court of law; (b) call evidence of its own motion; (c) use evidence contained in any official record or adduced in any other claim; (d) refer any matters to any customary institution habitually accepted within the

parish as an institution with functions over land for its advice and, where relevant, use, with or without adaptations and additions, customary procedures relating to the settlement of disputes over land recognised and in general use within the community where the land is situated; and

(e) generally, determine its own procedures.


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(3) In order to discharge the functions referred to in subsection (1), the chairperson of a committee shall have power to administer oaths and to issue summonses, notices and orders requiring the attendance of such persons and the production of such documents as he or she may consider necessary for carrying out the functions of the committee.

6. Procedures for application for certificate of customary ownership.

(1) The chairperson of a committee shall be responsible for ensuring that the procedures to be followed by the committee as set out in this section and any other procedures that may be prescribed are complied with.

(2) Where an application has been submitted to the committee, a notice in the prescribed form shall be published and posted in a prominent place in the parish and on the land which is the subject of the application—

(a) specifying the location and approximate area of the land; (b) requiring all persons who claim any interest in the land or in any adjacent land

which may be affected by the application, including in respect of any adjacent land claims as to the boundaries of that land, to attend a meeting of the committee at a specified time and put forward their claims; and the time specified shall be not less than two weeks from the date on which the notice is published and posted as required by this subsection.

(3) On the date specified under subsection (2), the committee shall hear and

determine all claims made under that subsection. (4) The committee may adjourn any hearing into any claim and request an officer

from the district land office, any other person or a group of persons recognised within the parish as having knowledge about land and its incidents of tenure within the parish to conduct further investigations into that claim.

(5) In hearing and determining any claim, the committee shall use its best

endeavours to mediate between and reconcile parties having conflicting claims to the land.

(6) The committee shall—

(a) prepare a report on the application, recording all claims to interests and rights in the land or to the occupation and use of the land and its opinion on whether those claims have been proved to exist, setting out its findings and recommendations with reasons on the application, including in all cases whether the application should be approved with or without conditions, restrictions or limitations endorsed on the certificate and forming part of the incidents of customary ownership evidenced by the certificate or refused, and all claims made in relation to the application;

(b) give or send a copy of the report to the applicant; (c) submit the report to the board; (d) make a copy of the report available within the parish for inspection by all

persons who submitted claims to or who were heard by the committee. 7. Functions and procedure of board on application for certificate of customary ownership

(1) The board shall, upon receipt of the report and recommendations of the committee referred to in section 6(6), consider the application in the light of that report and those recommendations and may—

(a) confirm the recommendations of the committee and where those recommendations are to issue a certificate of customary ownership with or without conditions, restrictions or limitations, issue that certificate of


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customary ownership accordingly and where the recommendations are to refuse to issue a certificate of customary ownership, confirm that refusal;

(b) where the recommendation of the committee is to issue a certificate subject to conditions, restrictions or limitations, vary the recommendation of the committee and issue a certificate of customary ownership, with or without conditions, restrictions or limitations in accordance with any such variations as it may make;

(c) return the report to the committee with directions as to what action, including further investigations or hearings, the committee is to undertake on the application; or

(d) reject the report of the committee and where the recommendation of the committee is to issue a certificate, refuse to issue a certificate and where the recommendation of the committee is to refuse to issue a certificate, issue a certificate.

(2) Where the board rejects or varies a recommendation of the committee, it shall

give reasons for its decision. (3) Where the committee has recorded under section 5(1)(e) that a person is entitled

to the benefit of a third party right, a certificate of customary ownership may only be issued by the board subject to that third party right, a record of which shall be endorsed on the certificate.

(4) The board shall communicate its decision in writing to the recorder. (5) Where the decision of the board is to issue a certificate of customary ownership

with or without conditions, restrictions or limitations, the recorder shall issue a certificate in the terms of the decision of the board to the applicant.

(6) Any person aggrieved by a decision of the board under this section may appeal to

the land tribunal against that decision; and the land tribunal may confirm, vary, reverse or modify the decision of the board and make such other order in respect of that decision or as it is empowered to make by this Act.

8. Incidents of certificate of customary ownership

(1) A certificate of customary ownership shall be taken to confirm and is conclusive evidence of the customary rights and interests specified in it, and the land to which the certificate refers shall continue to be occupied, used, regulated and any transactions in respect of the land undertaken and any third party rights over the land exercised in accordance with customary law. (2) A certificate of customary ownership shall confer on the holder of the certificate the right of the holder to undertake, subject to the conditions, restrictions and limitations contained in the certificate and subject to subsection (1), any transactions in respect of that land which may include, but shall not be limited to—

(a) leasing the land or a part of it; (b) permitting a person usufructuary rights over the land or a part of it for a

limited period which may include a period for the life of the person granting or the person granted the usufructuary right;

(c) mortgaging or pledging the land or a part of it, where a certificate of customary ownership does not restrict it;

(d) subdividing the land or a part of it, where a certificate of customary ownership does not restrict it;

(e) creating, or with the consent of the person entitled to the benefit, altering or discharging any easement, right in the nature of an easement or third party right applicable to the land or a part of it;

(f) selling the land or a part of it, where a customary certificate of customary ownership does not restrict it;


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(g) transferring the land or a part of it to any other person in response to an order of a court or a land tribunal;

(h) disposing of the land by will. (2) The holder of a certificate of customary ownership who undertakes any

transaction in respect of the land to which the certificate relates shall provide the recorder with a copy or other accurate record of the transaction, and the recorder shall keep all such records in the prescribed manner.

(3) No transaction referred to in subsection (3)(a), (c) or (f) shall have the effect of

passing any interest in the land to which the transaction relates unless it is registered by the recorder under subsection (3).

(4) For the avoidance of doubt, where a mortgage of land to which this section

applies has been made under the Mortgage Act, the mortgagee has the power to sell and execute a transfer of that land to a purchaser in case of default by the mortgagor.

(5) In this section, “usufructuary right” means the right to use and derive profit from

a piece of property belonging to another while the property itself remains undiminished and uninjured in any way.

(6) A certificate of customary ownership shall be recognised by financial institutions,

bodies and authorities as a valid certificate for purposes of evidence of title. 9. Conversion of customary tenure to freehold tenure

(1) Any person, family, community or association holding land under customary tenure on former public land may convert the customary tenure into freehold tenure in accordance with this Act.

(2) The decision of the board approving the conversion to freehold tenure shall be in

the prescribed form. (3) An application for conversion from customary tenure to freehold tenure shall be in

the prescribed form and shall be submitted, together with the prescribed fee, to the committee of the parish in which the land the subject of the application is situated.

(4) On receipt of the report and recommendations of the committee, the board shall

cause the land in respect of which the application is made to be surveyed before approving the application.

(5) When the board approves an application for conversion, the board may attach

conditions to the conversion. (6) Any party aggrieved by the decision of the board may appeal to the land tribunal;

and the tribunal may confirm, reverse, vary or modify the decision and make such orders as it is empowered to make by this Act.

10. Application for grant of land in freehold

A person who wishes to be granted a freehold shall apply in the prescribed form to the board.

The application referred to in subsection (1) shall be lodged with the committee.


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11. Functions of the committee on application for freehold tenure

(1) Upon receipt of an application made under section 9 or 10, the committee shall, subject to this section, exercise in respect of the application all its functions under section 5.

(2) The committee shall when exercising the functions set out in section 5(1)(c)

consider or take into account the question whether the customary law applicable to the land the subject of an application to which this section applies recognises or provides for individual ownership of land.

(3) In respect of an application made under section 9, the committee shall, when

exercising the functions set out in section 5(1)(d) record whether the person or persons referred to in that paragraph are prima facie entitled to have their customary tenure converted to freehold tenure and in any case where two or more persons are prima facie entitled to convert their customary tenure to freehold tenure shall record whether they own or are entitled jointly or in common and in the latter case, the share of each.

(4) Any person who holds a certificate of customary ownership shall be exempted in

respect of that land from the verification described by section 5.

12. Procedures for application for freehold tenure

(1) The committee shall, subject to this section, in respect of an application made under section 9 or 10, comply with all the procedures set out in section 6.

(2) Where the applicant is in possession of a certificate of customary ownership—

(a) Section 6(2)(b), (3), (4), (5) shall not apply to the application; (b) the committee may, when preparing a report on the application to which

section 9 applies, make use of any report prepared under section 6(6)(a) but shall, in so doing, have regard to section 11 and whether, in the circumstances of the application, there are any new or additional matters not dealt with in the report submitted under section 6 that should be brought to the attention of the board…

15. Communal land associations

(1) A communal land association may be formed by any group of persons in accordance with this Act for any purpose connected with communal ownership and management of land, whether under customary law or otherwise.

(2) Within each district, the district registrar of titles shall perform such functions

relating to communal land associations as are conferred on that officer by this Act or as may be prescribed.

(3) The district registrar of titles shall keep a public register of associations in the

prescribed form and shall exercise a broad and general supervision over the administration of the associations within his or her district in order to ensure that they comply with their constitutions and manage the communal land under their control with due regard to the interests of the members of the association; and without limiting the generality of that function, he or she may, at any time that he or she considers it necessary for the proper performance of his or her functions or that it is in the public interest so to do, give directions to any officer of an association as to the proper performance of his or her duties, and that officer shall be under a duty to comply with any such order.


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16. Meeting to form association and elect a managing committee

(1) A group of persons who wish to form themselves into an association may apply to the district registrar of titles to become an association under the Act.

(2) The district registrar of titles shall, on receipt of an application, convene a

meeting of the group of persons. (3) A notice to convene a meeting shall—

(a) state the place where and the time, being not less than twenty-one days from the date of the notice, at which the meeting is to be held;

(b) be drawn to the attention of all members of the group of persons in such manner that they will understand its nature and purpose.

(4) A meeting of a group of persons convened under this section shall—

(a) determine whether to incorporate themselves into an association; (b) where not less than 60 percent of the group determine so to incorporate

themselves, elect not more than nine nor less than three persons, of whom not less than one-third shall be women, to be the officers of the association.

(5) The district registrar of titles or an authorised officer shall preside at the meeting

convened under this section.

17. Constitution of an association

(1) The officers elected under section 16 shall be responsible for preparing a constitution for the association.

(2) The district registrar of titles shall assist the officers in preparing a constitution

for the association and may provide the officers with a model constitution containing such matters as may be prescribed.

(3) A constitution prepared by the officers shall be submitted to the district registrar

of titles for his or her certification that it complies with such matters as may have been prescribed or where no matter has been prescribed, that it provides for a transparent and democratic process of management of the affairs of the association.

(4) Where the district registrar of titles is of the opinion that the constitution does not

comply with subsection (3), he or she shall, within not more than thirty days from the receipt of that constitution, return it to the officers with a statement of reasons as to why he or she has rejected it.

(5) A constitution which has been rejected under subsection (4) may be revised and

resubmitted for certification. (6) A constitution which has been certified as complying with subsection (3) shall be

put before and voted on by a meeting of the members of the association specifically convened for that purpose.

(7) A constitution shall be the approved constitution of the association when and only

when it is approved by an absolute majority of all the members of that association at the meeting referred to in subsection (6).

(8) An approved constitution shall be binding on all members of the association.


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18. Incorporation of officers as managing committee

(1) The officers of an association which has voted to approve a certified constitution shall apply to the district registrar of titles on the prescribed form to be incorporated under this Act.

(2) On receiving an application under subsection (1), the district registrar of titles

shall, if he or she is satisfied that the requirements of this Act and any regulations made under this Act have been complied with, issue a certificate of incorporation of the officers of the association in the prescribed form, subject to such conditions and limitations as may be prescribed.

(3) Upon the issue of a certificate of incorporation, the persons named in it as the

officers shall become a body corporate with the name specified in the certificate and shall have perpetual succession and a common seal.

(4) Where a certificate of incorporation has been issued subject to conditions and

limitations, the officers may, with the approval of the district registrar of titles, vary any of those conditions or limitations.

19. Powers of managing committee

(1) The issue of a certificate of incorporation shall, subject to this Act, confer on the officers the powers to sue and the liability to be sued in the corporate name of the association, to make contracts binding on the association and all its members, to grant mortgages, pledges or liens over any property of the association and to dispose of any property of the association.

(2) The managing committee shall hold any land and other property which it holds as

such and exercise its powers as such for and on behalf of all members of the association on any exercise of its functions.

(3) Where land is held on a certificate of customary ownership or a freehold or

leasehold title by the managing committee on behalf of an association, no transactions of any kind in respect of the land or any part of the land shall be entered into or undertaken or concluded by the managing committee unless a majority convened for the purpose approve the specific transactions which are the subject of the meeting, and any transaction which is concluded which does not comply with this subsection shall be null and void and shall give rise to no rights or interest in the land.

20. Disputes

(1) If a dispute arises within an association, the district registrar of titles may of his or her own motion or on a request in writing by not less than one-tenth of the membership of that association—

(a) undertake an inquiry into the activities of the association and the matters which have caused or contributed to the dispute;

(b) refer the dispute to the board or such other person as he or she considers suitable to act as a conciliator to mediate the dispute between the members;

(c) propose amendments to the constitution or the rules of the association to avoid similar disputes in the future;

(d) take such other action as he or she shall consider appropriate in the circumstances, including action under this section.


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(2) Where the district registrar of titles has intervened in a dispute within an association under this section, all members of that association shall comply with any directions given by that officer in connection with the resolution of that dispute and shall cooperate with any person appointed by that officer to assist in resolving the dispute.

21. Dissolution and decertification of an association

(1) The managing committee may apply to the district registrar of titles for dissolution of the association. An application under subsection (1) shall be made in the prescribed form and shall be—

(a) signed by the officers; (b) accompanied by the duly and properly signed minutes of the meeting of the

members of the association specifically convened for the purpose at which a resolution to support the dissolution of the association was approved by a majority of all members of the association; and

(c) delivered or sent to the district registrar of titles within fourteen days of the date on which the resolution was approved.

(2) The district registrar of titles may, if he or she thinks fit, consent to the

dissolution applied for; but the consent shall not affect any liability for any debts or remove any obligation to pay any taxes, fees, dues or other sums which the officers, on behalf of the association, owed up to the time of the dissolution, and any action or proceedings against those officers which have been or which may be commenced in respect of any such debts or sums owing may be continued or commenced, as the case may be.

(3) When an order of dissolution is consented to, the district registrar of titles shall—

(a) give appropriate publicity to the dissolution and its effect; (b) cancel the certificate of incorporation of the association; and (c) give such other directions and make such other orders as are necessary to

give full effect to the dissolution and decertification of the association.

22. Individual holding of land created out of communal land

(1) Where an association holds land under a certificate of customary ownership or for a freehold title on behalf of a community, the association shall, where the customary law of the area makes provision for it, recognise and verify that all or part of the land so held by it is occupied and used by individuals and families for their own purposes and benefit.

(2) For the purpose of holding land under customary tenure, a family shall be

deemed to be a legal person represented by the head of the family. (3) Where any individual member of or family within a community referred to in

subsection (1) or otherwise wishes to own, in his or her or their own capacity, land which is held communally but which, in accordance with customary law, is made available for the occupation and use of that individual or household, then—

(a) if it is before the land held by an association on behalf of the community, the individual or household may apply for a certificate of customary ownership under section 4, or for a freehold title under section 10, in respect of his or her or its portion of land, and sections 5 and 6 or, as the case may be, 11 to 14 shall apply to that application;

(b) where the land communally owned is held by an association under a certificate of customary ownership, the individual or family may apply to the association to transfer to him, her or it, his or her or its portion of land, and the association shall consider the application and take a decision in the


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matter; and if the association approves the application, the applicant may cause his or her portion of the land to be demarcated and transferred to the applicant and registered by the recorder;

(c) where the land communally owned is held by an association under freehold title, the individual or family may apply to the association to transfer to him, her or to it, his, her or its portion of land, and the association shall consider the application and take a decision in the matter; and if the association approves the application, the applicant may cause his or her portion of the land to be surveyed and transferred to the applicant and registered by the registrar.

(4) Any person aggrieved by a decision of the association under this section may

appeal against the decision to the land tribunal; and the land tribunal may confirm, vary, reverse or modify the decision of the association and make such other order as it is empowered to make under this Act.

23. Establishment of areas of common land use in communally-owned land

(1) An association may, and shall, when so requested to do so by the community on whose behalf it holds land, set aside one or more areas of land for common use by members of the group.

(2) The boundaries of any area of land which has been set aside for common use

shall be marked out in such a manner, including any such manner as is customary among the persons who will use that land, so as to enable those persons to recognise and keep to those boundaries.

(3) The purposes for which land may be set aside for common use are—

(a) the grazing and watering of livestock; (b) hunting; (c) the gathering of wood fuel and building materials; (d) the gathering of honey and other forest resources for food and medicinal

purposes; (e) such other purposes as may be traditional among the community using the

land communally.

24. Management of areas of common land use

(1) An area of land set aside for common use shall be used and managed in accordance with the terms of a common land management scheme.

(2) A common land management scheme shall be made by an association, but it shall

only come into effect when it is agreed to by the community on whose behalf the association holds land.

(3) A common land management scheme may extend to cover the use and

management of more than one area of common land. (4) A person who is not a member of the community may, with the agreement of the

association, which agreement shall not be unreasonably withheld, use common land in accordance with the terms of the common land management scheme applicable to that land.

(5) Where a common land management scheme is made in respect of land held by

an association under freehold, all members of the community and persons referred to in subsection (4) shall be deemed to have the benefit and be subject to the burden of easements and rights in the nature of easements in respect of their use of the common land.


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(6) The board may prepare and publish a model common land management scheme;

and where a model scheme has been published, an association shall have regard to that scheme when it makes its own scheme.

25. Content of common land management scheme

(1) A common land management scheme may include all or any of the following matters as seems most appropriate to the association—

(a) a description of the area of common land to which it applies; (b) where common land is to be used for the communal grazing and watering of

livestock—

(i) the numbers and type of livestock which each member of the community may graze on the common land;

(ii) the locations within the common land where livestock may be grazed and the times when those locations may be used for the grazing;

(iii) the routes to and from the common land which livestock are required to use;

(c) where the common land is to be used for hunting, the terms and conditions on which hunting may take place, due regard being given to the Animal Diseases Act, Cattle Grazing Act and the Uganda Wildlife Act; and

(d) where common land is to be used for the gathering of wood fuel, building materials and other natural resources—

(i) the amount of wood fuel, building materials and other natural resources which any member of the community may gather for the use of his or her homestead and his or her family;

(ii) the terms and conditions on which wood fuel and other natural produce may be gathered for sale;

(e) a description of the management activities to be undertaken by the association;

(f) general rules concerning access to and use of common land by members of the community and by other persons;

(g) fees that may be charged to those using the common land, and any such fees may differentiate between members of the community and other persons using the common land with permission of the association;

(h) the penalties that may be imposed on those violating the terms of the scheme, including the grounds for excluding any person from using the common land;

(i) the duration of the scheme; (j) the procedures for reviewing and amending the scheme; (k) such other matters as the members of the association may think fit to include

or as may be prescribed. (2) There shall be deemed to be included in every scheme the basic rights and duties

of the members of the community using the common land to which that scheme applies as set out in section 26.

26. Basic rights and duties of members of the community using common land

(1) The basic rights and duties of the members of a community under a common land management scheme are as follows—

(a) the right to make reasonable use of the common land, jointly with all other members of the group, in accordance with the terms of the scheme;

(b) the right to gather wood fuel and building materials and harvest the resources of the common land in accordance with the terms of the scheme;

(c) the duty to comply with and assist in the enforcement of the rules set out in the scheme;


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(d) the right to exclude nonmembers of the group from the common land, other than those nonmembers who have been permitted to enter and use the common land;

(e) the duty to bear a reasonable and proportionate share of any expenses or losses incurred in using and managing the common land or through any natural disaster affecting the common land;

(f) the duty to support the establishment and management of a fund for the purposes of carrying out activities on and improvements to the common land in accordance with the terms of the scheme and to pay into the fund any fees and penalties collected under the scheme;

(g) the duty not to transfer any rights to occupy or use or gather the produce of any common land to any person whether for a fee or otherwise, except in accordance with the terms of the agreement and the rules of the scheme;

(h) the duty to comply with any decisions of the association or any dispute settlement body established by the association to settle disputes arising from the management of the scheme;

(i) such other basic rights and duties as may be proposed by the association and agreed to by the community.

(2) Any person aggrieved by a decision of an association made in connection with the

management of a scheme may appeal against that decision to the land tribunal; and the land tribunal may confirm, vary, reverse or modify the decision of the association and make such other order in respect of that decision as it is empowered to make by this Act.

27. Rights of women, children and persons with a disability regarding customary land

(1) Any decision taken in respect of land held under customary tenure, whether in respect of land held individually or communally, shall be in accordance with the customs, traditions and practices of the community concerned, except that a decision which denies women or children or persons with a disability access to ownership, occupation or use of any land or imposes conditions which violate articles 33, 34 and 35 of the Constitution on any ownership, occupation or use of any land shall be null and void.

28. Conversion of leasehold into freehold

(1) Any lease which was granted to a Ugandan citizen out of former public land and was subsisting on the coming into force of this Act may be converted into freehold if the board is satisfied that the following conditions have been complied with—

(a) that the leasehold is authentic and genuine; (b) that there were no customary tenants on the land at the time of acquisition of

the lease; (c) that if there were any customary tenants on the land at the time of acquisition

whose tenancy was disclosed, those tenants were duly compensated; (d) that all development conditions and covenants have been complied with; (e) that any other conditions imposed by law from time to time have been

complied with; and (f) that the conversion shall be limited to one hundred hectares and that any area

in excess of one hundred hectares shall be converted only if the board has verified it and is satisfied that it is desirable in the public interest that it should be converted into freehold.

(2) Where a lease of land exceeding one hundred hectares is converted into freehold,

the owner shall pay the market value as determined by the chief government valuer for the new interest before the conversion becomes effective and the money paid shall become part of the Land Fund.


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(3) Any sublease held under a lease converted in accordance with subsection (1)

shall be taken to be upgraded to a lease under the same terms, conditions and covenants.

(4) Upon conversion the registrar shall endorse on the leasehold certificate of title

the words “Converted to Freehold”, cite the applicable law and append his or her signature.

(5) Non-endorsement of the leasehold certificate of title under subsection (4) shall

not affect the validity of the conversion.

(6) The registrar shall have power to ask for the production of the duplicate of the certificate of title for endorsement in accordance with subsection (4).

(7) The registrar shall endorse on a subleasehold deed to which subsection (3)

applies the words “Converted to Leasehold”, cite the applicable law and append his or her signature.

(8) Subsection (5) shall, with necessary modifications, apply to a subleasehold as it

applies to a leasehold. (9) For the avoidance of doubt, the registrar shall issue a certificate of title in respect

of any sublease upgraded to a lease under this section. (10) Nonendorsement shall not affect the validity of the conversion or upgrading. (11) Any person aggrieved by the decision of the board under this section may appeal

to the land tribunal against the decision; and the land tribunal may confirm, reverse, vary or modify the decision and make such order as it may think fit.

29. Meaning of “lawful occupant” and “bona fide occupant”

(1) “Lawful occupant” means—

(a) a person occupying land by virtue of the repealed— (i) Busuulu and Envujjo Law of 1928; (ii) Toro Landlord and Tenant Law of 1937; (iii) Ankole Landlord and Tenant Law of 1937;

(b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or

(c) a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

(2) “Bona fide occupant” means a person who before the coming into force of the

Constitution—

(a) had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or

(b) had been settled on land by the Government or an agent of the Government, which may include a local authority.

(3) In the case of subsection (2)(b)—

(a) the Government shall compensate the registered owner whose land has been occupied by persons resettled by the Government or an agent of the Government under the resettlement scheme;

(b) persons resettled on registered land may be enabled to acquire registrable interest in the land on which they are settled; and


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(c) the Government shall pay compensation to the registered owner within five years after the coming into force of this Act.

(4) For the avoidance of doubt, a person on land on the basis of a licence from the

registered owner shall not be taken to be a lawful or bona fide occupant under this section.

(5) Any person who has purchased or otherwise acquired the interest of the person

qualified to be a bona fide occupant under this section shall be taken to be a bona fide occupant for the purposes of this Act.

30. Mediator to assist persons not qualified to be bona fide occupants

(1) Where a person has occupied and utilised or developed any land unchallenged by the registered owner of the land or agent of the registered owner for less than twelve years and therefore does not qualify to be a bona fide occupant under section 29, that person shall take all reasonable steps to seek and identify the registered owner of the land for the purpose of undertaking negotiations with that owner concerning his or her occupation of the land.

(2) Where any negotiations are entered into between the occupant and the registered

owner under subsection (1) and the parties are unable, within a prescribed time, to reach agreement in the matter of the occupation of the land, either party may, in the prescribed manner, invite the mediator to assist them in their negotiations.

(3) The mediator may, upon being invited under subsection (2) and after satisfying

himself or herself that there are reasonable prospects of reaching a satisfactory agreement between the parties, accept the invitation and give all reasonable assistance to the parties to reach an agreement on the occupation.

Sections 31-38 concern rights of tenants and are omitted from this extract.

39. Restrictions on transfer of land by family members

(1) No person shall—

(a) sell, exchange, transfer, pledge, mortgage or lease any land; (b) enter into any contract for the sale, exchange, transfer, pledging, mortgage or

lease of any land; or (c) give away any land inter vivos, or enter into any other transaction in respect

of land—

(i) in the case of land on which the person ordinarily resides with his or her spouse and from which they derive their sustenance, except with the prior written consent of the spouse;

(ii) in the case of land on which a person ordinarily resides with his or her dependent children of majority age, except with the prior written consent of the dependent children of majority age;

(iii) in the case of land on which a person ordinarily resides with his or her children below the age of the majority, except with the prior written consent of the committee;

(iv) in the case of land on which ordinarily reside orphans below majority age with interest in inheritance of the land, except with the prior written consent of the committee.

(d) Subsection (1) shall not apply to any transfer of land by a mortgagee in exercise of powers under the mortgage.

(2) Where consent is required to be given by a person other than the committee under subsection (1), the consent shall be given to the committee by the person giving the consent.


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(3) Where any transaction is entered into by a purchaser in good faith and for value without notice that subsection (1) has not been compiled with, the transaction shall be void; but the purchaser shall have the right to claim from any person with whom he or she entered into the transaction any money paid or any consideration given by him or her in respect of the transaction.

(4) A consent referred to in subsection (1) shall not be unreasonably withheld. (5) Where the consent referred to in subsection (1) is withheld, a person aggrieved

by the withholding of the consent may appeal to the land tribunal; and the tribunal shall require the spouse or children of majority age or the committee, as the case may be, to show cause why they cannot give consent and may, in its discretion, dispense with the consent.

(6) The spouse or children of majority age, not being the owners of any land to which

subsection (1) applies, may lodge a caveat on the certificate of title or certificate of customary ownership of the person who is the owner of the land to indicate that the property is subject to the requirement of consent under subsection (1).

(7) The committee may, on behalf of the children below majority age or orphans

below majority age and not being owners, take action similar to that described in subsection (7).

(8) In this section—

(a) “notice” means actual or constructive notice; (b) “purchaser” means a grantee, lessee, sublessee, assignee, mortgagee,

chargee or other person who acquires an estate or an interest or right in the land.

40. Acquisition of land by a noncitizen

(1) Subject to article 237(2)(c) of the Constitution, a noncitizen may acquire a lease in land in accordance with this section.

(2) A lease of five years or more acquired by a noncitizen shall be registered in

accordance with the Registration of Titles Act. (3) A noncitizen shall not be granted a lease exceeding ninety-nine years. (4) Subject to the other provisions of this section, a noncitizen shall not acquire or

hold mailo or freehold land. (5) For the avoidance of doubt, any noncitizen who immediately before the coming

into force of the Constitution held land as lessee on conversion within the meaning of the Land Reform Decree, 1975, shall be deemed to have continued to be a lessee in accordance with the conditions of the lease.

(6) Any citizen holding land under freehold or mailo tenure who loses Ugandan

citizenship shall have the freehold or mailo tenure converted to a leasehold tenure for a period of ninety-nine years.

(7) For the purposes of this section, “noncitizen” means—

(a) a person who is not a citizen of Uganda as defined by the Constitution and the Uganda Citizenship Act;

(b) in the case of a corporate body, a corporate body in which the controlling interest lies with noncitizens;

(c) in the case of bodies where shares are not applicable, where the body’s decision making lies with noncitizens;


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(d) a company in which the shares are held in trust for noncitizens; (e) a company incorporated in Uganda whose articles of association do not

contain a provision restricting transfer or issue of shares to noncitizens.

(8) For purposes of subsection (7), “controlling interest” means—

(a) in the case of companies with shares, the majority shares are held by persons who are not citizens; and

(b) in the case of companies without shares, a company in which decisions are arrived at by the majority who are not citizens.

41. Land Fund

42. Acquisition of land by the Government

The Government or a local government may acquire land in accordance with articles 26 and 237(2) of the Constitution. 43. Utilisation of land according to various laws

A person who owns or occupies land shall manage and utilise the land in accordance with the Forests Act, the Mining Act, the National Environment Act, the Water Act, the Uganda Wildlife Act and any other law. 44. Control of environmentally sensitive areas

(1) The Government or a local government shall hold in trust for the people and protect natural lakes, rivers, ground water, natural ponds, natural streams, wetlands, forest reserves, national parks and any other land reserved for ecological and touristic purposes for the common good of the citizens of Uganda.

(2) A local government may, upon request to the Government, be allowed to hold in

trust for the people and the common good of the citizens of Uganda any of the resources referred to in subsection (1).

(3) Any resource that is not covered under subsection (1) which is identified after the

coming into force of this Act may, upon request to the Government and with the approval of Parliament, be held in trust for the people and for the common good of the citizens of Uganda by a local government.

(4) The Government or a local government shall not lease out or otherwise alienate

any natural resource referred to in this section. (5) The Government or a local government may grant concessions or licences or

permits in respect of a natural resource referred to in this section subject to any law.

(6) Parliament or any other authority empowered by Parliament may from time to

time review any land held in trust by the Government or a local government whenever the community in the area or district where the reserved land is situated so demands.

45. Land use planning and zoning

Any use of the land shall conform to the provisions of the Town and Country Planning Act and any other law. 46. Establishment of the commission

(1) There shall be a commission to be known as the Uganda Land Commission.


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(2) The commission shall be a body corporate with perpetual succession and a common seal and may sue or be sued in its corporate name.

49. Functions of the commission

(1) The functions of the commission shall be to—

(a) hold and manage any land in Uganda which is vested in or acquired by the Government in accordance with the Constitution;

(b) where applicable, hold and manage any land acquired by the Government abroad, except that the commission may delegate the management of such land to Uganda’s missions abroad;

(c) procure certificates of title for any land vested in or acquired by the Government;

(d) perform such other functions as may be prescribed by or under this Act or any other enactment.

53. Powers of the commission

(1) For the purpose of performing its functions under the Constitution and this Act, the commission may—

(a) acquire by purchase or exchange or otherwise hold land rights, easements or interests in land;

(b) erect, alter, enlarge, improve or demolish any building or other erection on any land held by it;

(c) sell, lease or otherwise deal with the land held by it; (d) cause surveys, plans, maps, drawings and estimates to be made by or

through its officers or agents; and (e) do such other things as may be necessary for or incidental to the exercise of

those powers and the performance of those functions. 55. Commission to conform to Government policy

(1) In the performance of its functions under the Constitution and this Act, the commission shall conform to the policy of the Government in relation to land matters.

(2) Subject to the Constitution, the Minister may, without prejudice to any other

powers he or she may have under this Act, give to the commission such policy directions as are necessary to ensure compliance with subsection (1), and the commission shall give effect to the directions.

56. Establishment of district land boards

(1) There shall be for each district a district land board. (2) The board shall be a body corporate with perpetual succession and a common

seal and may sue or be sued in its corporate name. 59. Functions of a board

(1) The functions of a board shall be to—

(a) hold and allocate land in the district which is not owned by any person or authority;

(b) facilitate the registration and transfer of interests in land; (c) take over the role and exercise the powers of the lessor in the case of a lease

granted by a former controlling authority; (d) cause surveys, plans, maps, drawings and estimates to be made by or

through its officers or agents;


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(e) compile and maintain a list of rates of compensation payable in respect of crops, buildings of a nonpermanent nature and any other thing that may be prescribed;

(f) review every year the list of rates of compensation referred to in paragraph (e) of this subsection; and

(g) deal with any matter which is incidental or connected to the other functions referred to in this subsection.

(2) A board within a district may, in the performance of its functions under of article

241(1)(a) of the Constitution, do so under the name of the institution of a traditional leader or cultural leader existing under article 246 of the Constitution in relation to that district.

(3) For the avoidance of doubt, nothing in subsection (2) shall be construed as

conferring on the traditional leader or cultural leader referred to in that subsection the power of direction or control over the board.

(4) In carrying out its functions under subsection (1)(a), a board shall have regard to

article 237(1) of the Constitution. (5) A board shall, in compiling a list of rates of compensation referred to in

subsection (1)(e) and (f), consult the technical officers in the district. (6) Each district council shall have a district land office comprising the offices of the

district physical planner, the district land officer, the district valuer, the district surveyor and district registrar of titles.

(7) The district land office shall provide technical services to the board to facilitate

the board in the performance of its functions under this Act. (8) The board shall hold in trust for the citizens the reversion on any lease to which

subsection (1)(c) relates and may exercise in relation to the lease and the reversion the powers of a controlling authority under the Public Lands Act, 1969, as if that Act has not been repealed; but subject to the foregoing, that Act shall, in respect of any such lease or reversion, have effect with such modifications as may be necessary to give effect to this Act and shall be subject to the provisions of the Constitution.

60. Powers of a board

(1) In the performance of its functions, a district land board shall be independent of the Uganda Land Commission and shall not be subject to the direction or control of any person or authority but shall take into account the national and district council policy on land and the particular circumstances of different systems of customary land tenure within the district.

(2) A board shall have power to—

(a) acquire by purchase or otherwise rights or interests in land and easements; (b) erect, alter, enlarge, improve or demolish any building or other erection on

any land held by it; (c) sell, lease or otherwise deal with the land held by it; and (d) do and perform all such other acts, matters and things as may be necessary

for or incidental to the exercise of those powers and the performance of those functions.

(3) In the performance of its functions, a district land board shall prepare and publish

an annual report and shall have regard to any comments that the district council may make on that annual report.


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64. Establishment of land committees

(1) There shall be for each parish a land committee consisting of a chairperson and three other members appointed by the district council on the recommendation of the subcounty council.

(2) There shall be for each gazetted urban area and each division in the case of a

city, a land committee consisting of a chairperson and three other members appointed by the council on the recommendation of the urban council, and in the case of a city, on the recommendation of the city division council.

(3) A person holding office as a member of a local government council shall

relinquish the office upon appointment as a member of the land committee. (4) A member of the committee shall hold office for a period of three years and may

be eligible for reappointment for a further one term. (5) The district council may terminate the appointment of a member of the

committee for his or her inability to perform the functions of his or her office or for any good cause.

(6) The committee shall assist the board in an advisory capacity on matters relating

to land, including ascertaining rights in land, and shall perform any other function conferred on it by or under this Act or any other law.

65. Qualification for appointment as member of a committee

(1) A person shall qualify for appointment as a member of the committee if—

(a) he or she is thirty years of age or more; (b) he or she has not been convicted of an offence involving moral turpitude; and (c) in the case of the chairperson, he or she is able to speak and write English.

(2) At least one of the members referred to in section 64 shall be a woman. (3) At least one of the members referred to in section 64 shall be a person with

knowledge and experience in matters relating to land. 67. Meetings of the committee

(1) The chairperson shall preside at all meetings of the committee and shall, in addition to the chairperson’s deliberative vote, have a casting vote.

(2) Where the chairperson is absent from any meeting of the committee, the

members present shall elect one of their number to preside over the meeting, and the person shall have a casting vote in addition to his or her deliberative vote.

(3) The quorum of the committee shall be three. (4) Proceedings and decisions of the committee shall be in writing and the records

shall be kept. (5) A decision of the committee shall be reached by consensus and in case of a

contentious matter by majority vote. (6) The records and instruments of the committee shall be kept by the chairperson. (7) Subject to this Act, the committee may regulate its own procedure.


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68. Recorder

(1) There shall, for the purposes of sections 4 and 33, be a recorder for each subcounty, each gazetted area and each division in the case of a city, who shall be answerable to the board.

(2) The recorder shall be responsible for keeping records relating to certificates of

customary ownership and certificates of occupancy. (3) For the purposes of subsection (1), in the case of—

(a) a rural area, the subcounty chief shall be the recorder; (b) a gazetted urban area, the town clerk shall be the recorder; (c) a division of a city, the assistant town clerk in charge of the division shall be

the recorder. (4) A copy of each certificate referred to in subsection (2) shall be deposited with the

board.

69. General powers of disposal

Subject to this Act, the commission or a board shall have power to grant estates and create rights or interests in land and to manage, dispose of and otherwise deal with the estate or interest in relation to land vested in it. 70. Water rights

(1) Subject to section 44, all rights in the water of any natural spring, river, stream, watercourse, pond, or lake on or under land, whether alienated or unalienated, shall be reserved to the Government; and no such water shall be obstructed, dammed, diverted, polluted or otherwise interfered with, directly or indirectly, except in pursuance of permission in writing granted by the Minister responsible for water or natural resources in accordance with the Water Act.

(2) Nothing in this section shall prevent the reasonable use by an occupier of land of

any waters referred to in subsection (1) for domestic, small-scale agricultural, or pastoral purposes.

71. Rights of way

All land, whether alienated or unalienated, shall be subject to all existing public rights of way which shall be reserved to and vested in the Government on behalf of the public; and all such rights of way shall be maintained by the public uninterrupted unless they are terminated or altered by the direction of the Minister in writing. 74. District land tribunals

(1) There shall be for each district a tribunal to be known as the district land tribunal which shall consist of a chairperson and two other members.

(2) The chairperson shall be a person qualified to be a magistrate grade I. (3) A member of the tribunal shall be a person with knowledge and experience in

land matters. (4) A person shall not qualify for appointment as a member of the tribunal unless the

person—

(a) is a person of the age of thirty years or more; (b) is of sound mind; (c) is of high moral character and proven integrity;


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(d) has not been convicted of an offence involving moral turpitude; (e) has not been declared bankrupt.

(5) Members of district land tribunals shall be appointed by the Chief Justice on the

advice of the Judicial Service Commission. (6) Members of district land tribunals shall be paid such salaries and allowances as

may be determined by the Public Service Commission on the recommendation of the Judicial Service Commission, and those salaries or allowances shall be charged on the Consolidated Fund.

76. Jurisdiction of district land tribunals

(1) The jurisdiction of a district land tribunal shall be to—

(a) determine disputes relating to the grant, lease, repossession, transfer or acquisition of land by individuals, the commission or other authority with responsibility relating to land;

(b) determine any dispute relating to the amount of compensation to be paid for land acquired under section 42;

(c) determine disputes in respect of land the value of which exceeds the amount stipulated under section 84;

(d) make consequential orders relating to cancellation of entries on certificates of title or cancellation of title and vesting of title in cases handled by the lower land tribunals; and

(e) determine any other dispute relating to land under this Act.

(2) In the exercise of jurisdiction over land matters provided for by this section, a district land tribunal shall have all the powers of a magistrate’s court grade I granted under the Magistrates Courts Act and shall, in addition and insofar as it is not provided for in that Act, have the power to grant decrees of specific performance and issue injunctions and generally shall have the power to grant such relief, make such orders and give such decisions against the operation of any action, notice, order, decree or declaration made by any official or any board or any committee or any association or the commission, as the circumstances of the case require, and without limiting the generality of that power, may—

(a) cancel any action, notice, order, decree or declaration; (b) vary the operation of any action, notice, order, decree or declaration; (c) postpone the operation of any action, notice, order, decree or declaration; (d) substitute a different decision for the one determined by any official, board,

committee, association or the commission; (e) confirm any action, notice, order, decree or declaration made, notwithstanding

that some procedural errors took place during the making of that action, notice, order, decree or declaration if the district land tribunal is satisfied that—

(i) the person applying for relief was made fully aware of the substance of the action, notice, order, decree or declaration; and

(ii) no injustice will be done by confirming that action, notice, order, decree or declaration, and may grant that relief and all other orders made and decisions given on such conditions if any, as to expenses, damages, compensation or any other relevant matter as the district land tribunal considers fit.

(3) On receipt of a case referred to in section 84(2), the district land tribunal shall

after satisfying itself make an appropriate order.

77. Computation of compensation

(1) The district land tribunal shall, in assessing compensation referred to in section 76(1)(b) take into account the following—


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(a) in the case of a customary owner, the value of land shall be the open market value of the unimproved land;

(b) the value of the buildings on the land, which shall be taken at open market value for urban areas and depreciated replacement cost for the rural areas;

(c) the value of standing crops on the land, excluding annual crops which could be harvested during the period of notice given to the tenant.

(2) In addition to compensation assessed under this section, there shall be paid as a

disturbance allowance 15 percent or, if less than six months’ notice to give up vacant possession is given, 30 percent of any sum assessed under subsection (1).

(3) The rates set out in the list of rates of compensation referred to in section

59(1)(e) shall be used in determining the amount of compensation payable. 78. Rules of procedure

(1) The land tribunal shall apply rules of procedure made by the Chief Justice, who shall take into account the need to have rules of evidence with such modifications as are necessary to ensure the expeditious disposal of land disputes.

(2) The rules of procedure made under this section shall be made in such a way as to

be applied by the subcounty and urban land tribunals established under this Act.

80. Subcounty land tribunals

(1) There shall be for each subcounty a land tribunal. (2) The land tribunal shall consist of a chairperson and two other members; at least

one of the members shall be a woman. (3) A person shall qualify for appointment as a member of the land tribunal if the

person—

(a) is thirty years of age and above; (b) has completed a minimum formal education of Ordinary Level or its

equivalent; (c) has not been declared bankrupt; or (d) has not been convicted of an offence involving moral turpitude.

(4) Subsection (3)(a) shall not apply to a person who holds a diploma or higher

qualifications in land related matters from a recognised institution.

84. Jurisdiction of subcounty and urban land tribunals

(1) The jurisdiction of land tribunals established under sections 80 and 81 shall be to determine any land dispute the value of the subject matter of which, in the case of a land tribunal—

(a) in a rural area, does not exceed two thousand five hundred currency points; (b) in a gazetted urban area, does not exceed five thousand currency points; and (c) in a division, does not exceed twelve thousand five hundred currency points.

(2) Notwithstanding subsection (1), a land tribunal referred to in that subsection shall

not make an order for the cancelling of entries in a certificate of title, cancelling of a certificate of title and vesting title, but shall refer such cases to the district land tribunal.

85. Rules of procedure of a land tribunal

The rules of procedure made in section 78 shall apply to a land tribunal established under sections 80 and 81.


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87. Right of appeal

(1) An appeal shall lie from the decision of a district land tribunal to the High Court. (2) An appeal shall lie from the decision of a land tribunal established under section

80 or 81 to the district land tribunal. (3) An appeal from the decision of a district land tribunal in the exercise of its

appellate jurisdiction shall lie to the High Court. 88. Customary dispute settlement and mediation

(1) Nothing in this Part shall be taken to prevent or hinder or limit the exercise by traditional authorities of the functions of determining disputes over customary tenure or acting as a mediator between persons who are in dispute over any matters arising out of customary tenure.

(2) At the commencement of a case or at any time during the hearing of the case, a

land tribunal may advise the parties to the case that, in its opinion, the nature of the case is such that the parties would be better served by using mediation to resolve their differences than by continuing with litigation in the tribunal; and where such an opinion has been given, the land tribunal may adjourn the case for such period as it considers fit to enable the parties to use the services of the traditional authorities or the mediator or some other person to mediate in the dispute.

89. Functions of the mediator

(1) There shall be a mediator who shall be appointed by the land tribunal, and the appointment shall be on ad hoc basis.

(2) The mediator shall be a person of high moral character and proven integrity who

by virtue of his or her skill, knowledge, work, standing or reputation in society is capable and likely to be able to bring parties who are in disagreement or dispute about an issue over land arising out of any matter provided for in this Act together to negotiate and reach a mutually satisfactory agreement or accommodation on that matter.

(3) The mediator shall have such functions as are provided for in this Act or as may

be conferred on him or her by regulations. (4) In the exercise of his or her functions, the mediator shall be independent and

shall not be subject to the direction or control of any other person. (5) In exercising any functions under this Act, the mediator shall be guided by the

principles of natural justice, general principles of mediation and the desirability of assisting the parties to reconcile their differences, understand each other’s point of view and be prepared to compromise to reach an agreement; but the mediator shall not compel or direct any party to a mediation to arrive at any particular conclusion or decision on any matter the subject of the mediation.

(6) The mediator shall in each case be a person agreed to by the two parties. (7) A mediator shall be paid such allowance as may be prescribed. PART VI—

MISCELLANEOUS.


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91. Special powers of registrar

(1) Subject to the Registration of Titles Act, the registrar shall, without referring a matter to a court or a district land tribunal, have power to take such steps as are necessary to give effect to this Act, whether by endorsement or alteration or cancellation of certificates of title, the issue of fresh certificates of title or otherwise.

(2) The registrar shall, where a certificate of title or instrument—

(a) is issued in error; (b) contains a misdescription of land or boundaries; (c) contains an entry or endorsement made in error; (d) contains an illegal endorsement; (e) is illegally or wrongfully obtained; or (f) is illegally or wrongfully retained, (g) call for the duplicate certificate of title or instrument for cancellation, or correction

or delivery to the proper party. (3) If a person holding a certificate of title or instrument referred to in subsection (2)

fails or refuses to produce it to the registrar within a reasonable time, the registrar shall dispense with the production of it and amend the registry copy and where necessary issue a special certificate of title to the lawful owner.

(4) The registrar may—

(a) correct errors in the Register Book or in entries made in it; (b) correct errors in duplicate certificates or instruments; and (c) supply entries omitted under this Act.

(5) The registrar may make amendments consequent upon alterations in names or

boundaries but in the correction of any such error or making of any such amendment shall not erase or render illegible the original words.

(6) Upon the exercise of the powers conferred on the registrar under subsection (5),

the registrar shall affix the date on which the correction or amendment was made or entry supplied and shall initial it.

(7) Any error or any entry corrected or supplied under this section shall have the

same validity and effect as if the error had not been made or entry not omitted. (8) In the exercise of any powers under this section, the registrar shall—

(a) give not less than twenty-one days’ notice in the prescribed form to any party likely to be affected by any decision made under this section;

(b) provide an opportunity to be heard to any such party to whom a notice under paragraph (a) has been given;

(c) conduct any such hearing in accordance with the rules of natural justice but subject to that duty, shall not be bound to comply with the rules of evidence applicable in a court of law;

(d) give reasons for any decision that he or she may make. (9) The registrar shall communicate his or her decision in writing to the parties and

the committee. (10) Any party aggrieved by a decision or action of the registrar under this section

may appeal to the district land tribunal within sixty days after the decision was communicated to that party.


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(11) Where the registrar has cancelled a certificate of title or an entry in the Register Book, a party in whose favour the cancellation is made shall not transfer the title until the expiry of the time within which an appeal may be lodged; and where an appeal is lodged against the cancellation, he or she shall not transfer the title until the determination of the appeal.

(12) The party who lodges an appeal under this section shall take steps to ensure that the registrar and the other party are served with the notice of appeal.

(13) Where the person who appealed under this section fails to prosecute the appeal, the tribunal shall, on application by any other party to the appeal, strike out the appeal.


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Annex III: Extracts of relevant Liberian legislation

Only the sections and articles of the following laws and regulations relevant to community land rights have been included herein. 1. The Hinterland Law of 1949198 Article 21: Tribal Government

(1) Each tribe of chiefdom shall be governed by one Paramount Chief who shall be elected to that position by the council of chiefs and elders, subject to the approval or disapproval of the President (amended later to elections by entire Electorate of the Chiefdom)

(2) For purpose of administration, a tribe shall consist of clans according to tribal

traditions, and shall be ruled or governed by a Clan Chief. (3) A Clan Chief shall be elected be elected by members of the clan who have

reached their maturity and are owners of huts and not delinquent in their taxes. (4) No person who is not a member of a tribe shall be eligible for election to the

office of Paramount Chief; and Clan Chiefs shall also be selected for selection from their respective clans.

(5) A Town Chief shall be elected by the paramount residents of the village. (6) In no circumstance may a Paramount, Clan or Town Chief be appointed by any

official whatsoever, except in instance of suspension for official misconduct or gross dereliction of duty and such appointments shall not exceed the period of tree calendar months when either permanent restoration to office must be made or election held. In case of such suspension, if done by any official other than the President or Secretary of Interior, immediate approval of the Secretary of Interior must be obtained and the suspension shall not be effective until approval is given by said official in case of clan Chiefs. In case of Paramount Chiefs, the approval of His Excellency, the President must be evoked and said suspension shall not be effective until said approval shall be given.

Article 22: Duties of Paramount Chiefs

(1) The duties of the Paramount Chief shall be under the direction of the District Commissioner to supervise the administration of the tribe; to carry such lawful instructions which may be given him from time to time by the District Commissioner in relating to the collection of taxes construction of roads and bridges; improvements of agriculture, trade, the sanitation of his tribal areas, and other matters affecting the general welfare of this chiefdom or tribe.

(2) A tribal Treasury shall be established in each chiefdom, with a tribal treasurer to

be elected by the council of chiefs. The Paramount Chief shall ensure that no expenditures are made from this treasury without the majority vote of the council of chiefs. And such expenditures should only be made of proper payrolls or vouchers under warrant of the District Commissioner.

(3) There should be an annual budget prepared by the Tribal authorities with the

approval of the District Commissioner in respect to be general improvements of the tribal chiefdom.

198 Extracts, courtesy of Alden Wily, above n 165, 297-‐298.


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(4) A copy of all District approved budgets should be sent to the Secretary of Interior through the office of the provincial Commissioner who shall retain a copy there of on the files of his office.

(5) He shall make quarterly patrols of his chiefdom for the purpose of correcting evils in the administration of the various clans under this control. At the end of each patrol, a report thereof shall be made immediately to the District Commissioner. This report shall include also the administrative behavior and activities of all chiefs and officials…

Article 25: Duties of Town Chiefs

(1) A Town Chief shall be subject to all lawful orders of the Clan chief and shall not refuse to carry out any such lawful orders which may subject him to a fine, suspension or both.

(2) Before a suspension, penalty is inflicted the prior approval of the District

Commissioner must be obtained through the Paramount Chief. Duties of Chiefs:

(1) In a discharge of his duties, the Paramount Chief shall be assisted by a council of chiefs which shall be composed of the chiefs of the clan of his tribe or chiefdom.

(2) The council of chiefs shall be an Administrative board which shall fully cooperate

with the Paramount chief in every matter affecting tribal economy. This council shall meet at least once every quarter at chief at chiefdom headquarters and at each other time as the Paramount Chief may require.

(3) The Paramount Chief and Council of Chiefs shall be styled tribal authority. (4) Upon the death, deposition, or resignation of the Paramount Chief, the Council of

Chiefs and elders according to their tribal customs, where it is not in conflict with law or regulation, shall direct and nominate for appointment by the President, another chief to serve as Paramount Chief.

(5) The Tribal Authority shall prepare a budget covering the local development of the

chiefdom, including salary payments to clerical assistants, to be forwarded to the District Commissioner to be included in the District Budget for approval of the Provincial Commissioner. A record of all business transactions of the Tribal Authority must be kept in a book provided for that purpose and the chiefdom clerk shall be its secretary. Such record shall be opened for inspection by the Provincial or District commissioner or their higher authority at all times. All such transaction shall be immediately reported to Central Government.

(6) Whenever necessary the District Commissioner may assemble the Tribal Authority

of the Tribe or of all tribes within the District in a general council at Headquarters for conference on any district affairs or measures of vital public interest affecting the welfare of the people progress in the development of the district…..

Article 65: Right to strangers

(1) Persons who immigrate into territory belonging to a Chiefdom of which they are not citizens shall subject themselves to the tribal administration. Such immigrant group cannot have a chief, but may elect a headman, as provided herein who shall be responsible to the Paramount Chief of the Tribe:


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(2) The Headman of an immigrant group is responsible to the Paramount Chief of the Tribe in matters affecting general administration, but in matters between members of their community purely of tribal nature, he shall have the right to exercise all functions and powers of a Clan Chief and appeal therefore lie in the court of the District Commissioner.

(3) A service certificate shall be issued to an Immigrant Group Headman as a token

of official recognition, by the Provincial Commissioner upon recommendation of the District Commissioner after an election.

Article 66: Lands

(1) Title to the territory of the Republic of Liberia vests in the sovereign state. The right and title of the respective tribes to lands of an adequate area for farming and other enterprises essential to the necessities of the tribe main interest in the tribe to be utilized by them for these purposes; and whether or not they have procured deeds from Government, delimiting by notes and bounds such reserves, their rights and interest in and to such areas, are a perfect reserve/usafruct and give them title to the land against any person or persons whenever.

(2) This land interest may be transmitted into communal holding upon application of

a tribe made to the Government for that purpose, and such communal holding would be surveyed at the expense of the tribe concerned.

(3) The Communal holding will be vested in the Paramount Chief and Tribal Authority

as trustees for the tribe. (4) The trustees, however, cannot pass any fee simple title in these lands to any

person whatever. (5) Should the tribe come sufficiently advanced in the arts of civilization, they may

petition the Government for a division of the land into family holdings in which event the Government will grant deeds in fee simple to each family for an area of 25 acres in keeping with provision of Act of 1905.

Article 67: Use of lands by strangers

(1) If any individual enters the territory of a tribe of which he is no a member for the purpose of farming, he shall observe the following procedures:

(2) Obtain permission of the Tribal Authority prior to commencing his activities; (3) Agrees to pay some token in the nature of rent, such as fine or six bunches of

rice not of every farm; (4) Pay taxes to the appropriate trial chief on all huts on the said lands erected or

occupied by him. (5) The Tribal Authority may cancel the authority granted and confiscated the corps,

subject always to appeal to the District Commissioner provided he neglects to comply with all or any of forgoing provisions.


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2. Aborigines Law; Title 1, Liberian Code of Law, 1956 (Extracts) Chapter 11: Tribal Lands

270. Extent of tribal rights in lands

Each tribe is entitled to the use of as much of the public land in the area inhabited by it as is required for farming and other enterprises essential to tribal necessities. It shall have the right to the possession of such land as against any person whatsoever.

The President is authorized upon application of any Tribal authority to have set out the metes and bounds or otherwise defined and described the territory of the tribe applying. A plot or map of such survey or description shall be filed by reference in the archives of the Department of State within six months after the completion of such survey. The omission of a tribe to have its territory so delimited shall not, however, affect in any way its right to the use of the land.

271. Communal holdings

The interest of a tribe in lands maybe converted into communal holdings upon application to the Government. The proposed holding shall be surveyed at the expense of the tribe making the application.

The communal holding shall be vested in the members of the Tribal Authority as trustees for the tribe, but the trustees shall not be able to pass title in fee simple to such lands to any person whatsoever.

272. Division of tribal lands into family holdings

If a tribe shall become sufficiently advanced in civilization, it may petition the Government for a division of the tribal lands into family holdings. On receiving such a petition, the Government may grant deeds in fee simple to each family of the tribe for an area of twenty-five acres. 273. Use of tribal land by strangers

A person who enters the territory of a tribe of which he is not a member for the purpose of farming, shall observe the following procedure:

(a) Obtain permission of the Tribal Authority prior to commencing his activities; (b) Agree to pay some token in the nature of rent such as five or six bunches of

rice out of every farm; (c) Pay taxes to the appropriate tribal chief on all huts on the lands occupied by

him.

In the case of failure to comply with any of the foregoing requirements, the Tribal Authority may cancel the permission granted and confiscate the crops, subject always to appeal to the District or County Commissioner. 3. Public Lands Law (Extracts pertinent to customary lands) Section 30. Procedure

A citizen desiring to purchase public land located in the Hinterland shall first obtain consent of the Tribal Authority to have the parcel of land deeded to him by the Government. The District Commissioner shall satisfy himself that the parcel of land in question is not a portion of the Tribal Reserve and that it is not otherwise owned or occupied by another person and that it therefore may be deeded to the applicant. He shall thereupon issue a certificate to that effect…


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A citizen desiring to purchase public land in the County Area199 shall apply to the Land Commissioner of the county in which the land is located and the Land Commissioner if satisfied that the land in question is not privately owned and is unencumbered shall issue a certificate to that effect. Section 53. Allotment of public lands to aborigines who become civilized

Aborigines of the Republic of Liberia who shall become civilized shall be entitled to draw public land to the same amount as immigrants and to receive deeds to such lands under the provisions of section 51, paragraph 2 of this chapter; provided that an aborigine who has drawn or shall draw lands under the provisions of this section shall be entitled to a deed in fee simple for such land only when (a) He shall have completed a frame dwelling house thereon covered with plank, sheet iron, tiles, or shingles, or a house of stone, brick, logs, or mud, of sufficient size to accommodate himself and family; and (b) If the land is farmland he shall have brought at least one quarter thereof under cultivation by planting coffee trees, palm trees, rubber, cocoa, or other trees or planting bearing marketable products. Source: chapters 3 and 4, Public Lands Law, Title 34 Liberian Codes Revised Vol. v 4. National Forestry Reform Law, 2006 An Act Adopting The National Forestry Reform Law Of 2006 Approved: September, 2006 Section 1.1 Title citation

This Act constitutes, and shall be cited as, Part II of Title 23 of the Liberian Code of Laws Revised. Section 1.2 Short title and name

This Act may be referred to as the National Forestry Reform Law of 2006. Section 1.3 Definitions

Communal Forest: An area set aside by statute or regulation for the sustainable use of Forest Products by local communities or tribes on a non-commercial basis.

Community Forestry: The governance and management of Forest Resources in designated areas by communities for commercial and non-commercial purposes to further their livelihoods and development.

“Community” in the sense of community forestry means a group of local residents who share a common interest in the use and management of Forest Resources, with traditional or formal rights to the land and the forests on it.

Conservation: The sustainable management and protection of Forest Resources to achieve maximum environmental, social, economic, and scientific benefits for present and future generations.

Conservation Corridor: The use of a Game Reserve, Multiple Sustainable Use Reserve, or any other Protected Area category to ensure that large blocks of the Protected Forest Area Network remain contiguous for the purpose of maximum genetic exchange between blocks.

Controlled Hunting Area: An area designated by the Authority under Section 9.9 of this Law.

Cultural Site: An area, set aside pursuant to Chapter 9 of this Law, for the preservation and enjoyment of features with a local or national cultural significance.

199 County Area refers to the 1847-1963 division of the country into County Area including all territory extending from the seaboard 40 miles inland (the old Republic area).


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Encroachment: An infringement of or interference with another’s exercise of exclusive rights pursuant to a Forest Resources License.

Forest land: A tract of land, including its flora and fauna, capable of producing forest resources, not including land in urban areas, land in permanent settlements, and land that has been in long-term use for non-shifting cultivation of crops or livestock in a manner than precludes producing forest resources.

Forest resources: Anything of practical, commercial, social, religious, spiritual, recreational, educational, scientific, subsistence, or other potential use to humans that exists in the forest Environment, including but not limited to flora, fauna, and micro-organisms.

Land Owner (or Owner): A Person who owns land by legal title.

Occupant: A Person who is in lawful possession of land.

Person: Any individual, partnership, joint venture, association, corporation, trust, estate, un-incorporated entity, community, government, or state, and any branch, division, political sub-division, instrumentality, authority, or agency thereof. Section 2.1 Ownership of forest resources

(a) All Forest Resources in Liberia, except as provided in Subsection (b) of this Section, are held in trust by the Republic for the benefit of the People.

(b) The following types of Forests Resources are neither owned nor held in trust by the

(c) Republic:

(i) Forest Resources located in Communal Forests; and (ii) Forest Resources that have been developed on private or deeded land

through artificial regeneration.

(d) The Prospection, use, transport, processing, Trade, and export of all Forest Resources and Forest Products are subject to this Law.

Section 2.2 Use of forest land

(a) The Authority is the representative of the Government in any matters concerning the use of forest-related Government property, including the use of Forest Land and the harvest or other use of Forest Resources.

(b) In carrying out its responsibility under this Section, the Authority shall collaborate with other Government agencies and local communities as necessary.

Section 5.1 Basic prohibitions and regulatory powers

(a) The Authority shall, by Regulation or otherwise, undertake measures to institutionalize the participation of communities in forest management. Such measures may include, but are not limited to:

(iii) Recognition and protection of community land tenure rights; (iv) Formulation of a code of conduct to govern relationships between Holders and

communities; (v) Requirement to complete a social agreement between Holders and

communities that defines the parties’ respective rights, roles, obligations, and benefits with respect to one another;

(vi) Provision for security of access by communities to non-timber Forest Products and other Forest Resources; and

(vii) Provision of technical assistance to community foresters.


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Section 5.3 Forest management contracts

(a) The Authority may award Forest Management Contracts in accordance with the requirements of this Section and those in the Public Procurement and Concessions Act or its successor legislation governing public concessions.

(b) Forest Management Contracts must meet all of the following requirements:

(i) The land involved must be identified as a potential concession in the National Forest Management Strategy in effect at the time the concession is offered and must be validated under Section 4.5 of this Law.

(ii) The land involved must not include private land. (iii) The contract must require the Holder to perform actions necessary for sound,

long-term forest management, including inventories, preparation of management plans, and annual operations plans.

(iv) The contract must require the Holder to prepare all environmental impact assessments required under the laws governing environmental protection.

(v) The contract must require the Holder to submit a business plan to the Authority and to demonstrate to the Authority’s satisfaction that the Holder has the technical and financial capacity to manage the forest sustainably.

(vi) The contract must require the Holder to establish a social agreement with local forest-dependent communities, approved by the Authority, that defines these communities’ benefits and access rights.

(vii) The contract must require the Holder to pay the Government the fee that the Holder bid in the concession process, in addition to any other applicable taxes and fees, for the privilege of harvesting or using Forest Resources.

(viii) The basic term of the contract must approximate the length of a forest rotation on the land based on a sustainable yield of Timber products, although the contract may be terminated sooner for cause.

(ix) The land area subject to the contract must be at least 50,000 hectares and no more than 400,000 hectares.

(x) The Annual Coupe must allow the Holder to harvest every suitable area once during the term of the contract.

Section 5.4 Timber sale contracts

(a) The Authority may award Timber Sale Contracts in accordance with the requirements of this Section and those in the Public Procurement and Concessions Act or its successor legislation governing public concessions.

(b) Timber Sale Contracts must meet all of the following requirements:

(i) The contract must be consistent with the National Forest Management Strategy in effect when the contract is awarded and the area must be validated under Section 4.5 of this Law.

(ii) The land involved must not include private land. (iii) The basic term of the contract must not be more than three years. (iv) The land area subject to the contract must be no more than 5,000 hectares. (v) The contract must require the Holder to prepare an annual operations plan. (vi) The contract must require the Holder to pay the Government the fee that the

Holder bid in the concession process, in addition to any other applicable taxes and fees, for the privilege of harvesting or using Forest Resources.

(c) Consistent with the land planning requirements of Chapter 4 of this Law, the Authority may award Timber Sale Contracts for the purpose of allowing Forest Land to be cleared for agriculture or for the establishment of plantations.

(d) In awarding a Timber Sale Contract under Subsection (i) of this Section, the Authority shall:

(i) Take into account the terms of any existing contract, deed, or similar instrument pertaining to the ownership or management of the Forest Land too be covered by the Timber Sale Contract; and


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(ii) Respect established contractual and property rights, if any, under these instruments to the greatest extent possible, consistent with the purposes of this Law.

Section 5.5 Forest use permits

(a) The Authority may adopt Regulations allowing it to issue Forest Use Permits, subject to the requirements of this Section.

(b) The Authority shall include in Forest Use Permits sufficient conditions to ensure the Conservation of Forest Resources.

(c) The Authority may issue Forest Use Permits only for the following Commercial Uses:

(i) Production of charcoal; (ii) Tourism; (iii) Research and education; (iv) Wildlife-related activities; (v) Harvest of small amounts of Timber for local use within the County or

community; and (vi) Harvest or use of non-timber Forest Products.

(d) Regarding fees for Forest Use Permits:

(i) The Authority shall award the Permit through a concessions process under the Public Procurement and Concessions Act if the value of the Forest Resources to be used under the permit exceeds ten thousand United States dollars during the term of the permit.

(ii) In all other cases, the Authority shall offer Forest Use Permits free of charge, at a price fixed by Regulation, or at a rate fixed in Regulation based on the amount of Forest Resources harvested or used.

(e) Forest Use Permits must fall under one of the following categories: (i) Single permits, which the Authority issues upon application by qualified

Persons and which are limited in duration to no more than two years. (ii) General permits, which the Authority issues in a Regulation and which any

qualified Person may then use, although the terms of the permit may require that the Person register, give notice, or take other steps as a condition of using the permit.

(a) The Authority shall, by Regulation, restrict issuance of Forest Use Permits to specified classes of Persons, such as subsistence farmers, forest-dependent communities, residents of a particular county or district, academic researchers, artisans, and Persons undertaking tourism, eco-tourism, and similar Conservation based activities.

(b) If a Forest Use Permit allows the Holder to exercise exclusive use of a Forest Resource in a particular area, the area involved must be less than 1,000 hectares and must be validated under Section 4.5 of this Law.

(c) No Person shall harvest Forest Resources on private land under a Forest Use Permit without the Land Owner’s permission.

Section 8.2 Sustainable management and utilization of forest resources

The Government shall not grant title over forest land to private parties without giving public notice, allowing 60 days opportunity for public comment, and obtaining written approval from the Authority. Section 9.1 Protected Forest Areas Network and Conservation Corridors

(a) The Authority shall establish a Protected Forest Areas Network, together with Conservation Corridors, and incorporating existing National Forests, to cover at least 30 percent of the existing forested area of Liberia, representing about 1.5 million hectares.


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(b) To conserve Forest Resources within the Protected Forest Areas Network, the Authority shall promote and undertake research in the Network on socio-economic conditions and on the distribution, habitat, and population of Wildlife.

(c) The Authority shall seek the advice of the Forestry Management Advisory Committee created under Section 4.2 of this Law, and of other scientists, professionals, and members of non-governmental organizations, on the management of the Network and the promulgation of appropriate Regulations for the Conservation of the Environment within the Network.

Section 9.3 Authority to transmit proposal to President

Based on the results of surveys, scientific research, and other relevant data and information, and following public notice and a 60 day opportunity for public comment, the Authority may submit to the President a proposal to establish one or more National Forests, National Parks, nature reserves or strict nature reserves, setting forth: …

(d) A summary of any consultations held with Government agencies and persons affected by the proposed establishment and especially the view of local communities;

Section 9.10 Protected forest area regulations and prohibitions

(a) The Authority shall, in consultation with local communities, Counties, and other local authorities, issue Regulations governing activities in Protected Forest Areas.

(b) No Person shall:

(i) In a Strict Nature Reserve, pursue activities other than Conservation management and research.

(ii) In a National Park, Nature Reserve, or Game Reserve, prospect, mine, farm, hunt, fish, extract Timber or non-timber Forest Products, or take any other action except those for management or non-consumptive uses, such as tourism, recreation, and research.

(iii) In Communal Forests, prospect, mine, farm, or extract Timber for Commercial Use.

(iv) In Cultural Sites, prospect, mine, farm, hunt, or extract Timber or nontimber Forest Products.

(v) In a National Forest, prospect for minerals, undertake Class B or C mining, or farm.

(vi) In a Multiple Sustainable Use Reserve, farm or extract Timber for Commercial Use.

(c) The Authority shall, in collaboration with local communities, non-governmental organizations, and interested international organizations, undertake efforts to provide alternative livelihoods for communities adversely affected by the establishment or maintenance of Protected Forest Areas.

Section 10.1 Community empowerment

(a) To manage natural resources based on principles of Conservation, Community, and Commercial Forestry, and to ensure that local communities are fully engaged in the sustainable management of the forests of Liberia, the Authority shall by Regulation grant to local communities user and management rights, transfer to them control of forest use, and build their capacity for sustainable forest management.

(b) The Regulations promulgated under this Chapter must, at a minimum:

(i) Specify rights and responsibilities of communities with respect to ownership and uses of Forest Resources;

(ii) Establish mechanisms to promote informed community participation in forest-related decisions; and


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(iii) Establish social, economic, and technical procedures for capacity building to ensure that communities can equitably participate in and equitably benefit from sustainable management of the forests.

(c) In addition to satisfying the other requirements of this Section, the Authority shall, within one year of the effective date of this Law, present to the Legislature for consideration and passage a comprehensive law governing community rights with respect to Forest Lands.

Section 11.1 Rights of land owners and occupants

The rights of Land Owners and Occupants affected by the granting of Forest Resources Licenses, if any, are governed by this Chapter. Section 11.3 Government’s power to permit use

Where the Government has granted permission for the use of Forest Resources, no Land Owner or Occupant has a right to bar that use; however, the Land Owner or Occupant shall be entitled to just, prompt, and adequate compensation for any diminution in the value of his property occasioned by the use. Section 11.4 Procedure on refusal of land owner to allow operations

(a) If a Land Owner refuses to grant permission to the Holder of a Forest Resources License to conduct Operations, the Holder may petition the Authority to intervene, setting forth all relevant facts and circumstances, including any financial offers made to the Land Owner or Occupant.

(b) The Authority shall, by Regulation, establish appropriate procedures for the hearing and determination of these petitions.

Section 14.2 Forestry fees

(a) For the purposes of this Section, the term “Ministry” means the Ministry of Finance, or if its revenue collection duties are assigned to another entity, that entity; and “Central Bank” means the Central Bank of Liberia, or its successor entity assigned to hold the general revenues of the Republic.

(b) In conformance with Section 2108 of Phase One of the Reform Tax Code of Liberia, and in collaboration with the Ministry, the Authority may, by Regulation, establish fees of the following types:

(i) Stumpage fees, which are fees associated with the harvest of Forest Resources, including fees based on the kind and amount of Forest Resources harvested.

(ii) Land rental fees, which are fees associated with the use of Forest Land, including administrative fees and area-based fees tied to Forest Resources Licenses.

(iii) Forest Product fees, which are fees associated with the production, registration, transport, transfer of ownership, use, or export of Forest Products.

(c) The Government shall allocate and distribute fees collected annually pursuant to this Section as follows:

(i) Ten percent of stumpage fees to support operational costs for the Protected Forest Areas Network established by Chapter 9 of this Law.

(ii) Thirty percent of land rental fees to communities entitled to benefit sharing under Forest Resources Licenses; thirty percent of land rental fees to Counties; and forty percent of land rental fees to the Ministry of Finance to hold as part of the general revenues of the Republic in accordance with Section 7 of the Reform Tax Code.

(iii) Ten percent of Forest Product fees to support operational costs for the (iv) Protected Forest Areas Network established by Chapter 9 of this Law.


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(d) The Authority shall by Regulation establish a fair and transparent procedure for allocating fees to communities and to Counties under Subsection (e) of this Section.

Section 17.1 Settlement of disputes

The Authority may include provisions for appropriate resolution of disputes in Forest Management Contracts and Timber Sale Contracts and may, by Regulation, establish additional procedures for dispute resolution with respect to the management of Forest Resources. Section 18.3 Fundamental rights

Unless otherwise limited by contractual agreement, international conventions that the Government has ratified, this Law, or other laws and regulations of the Republic, Holders of Forest Management Contracts and Timber Sale Contracts may:

(a) Dispose of their property and organize their businesses as they wish. (b) Hire and dismiss employees and contractors within the scope of the labor

laws. (c) Enjoy reasonable access to raw materials in the area subject to the license. (d) Enjoy freedom of movement of personnel and equipment within the Republic. (e) Import goods and services not available in the Republic and transfer into the (f) Republic any necessary funds. (g) Dispose of their products on international markets.

Section 18.11 Existing rights

When issuing permission to use forest land or to harvest or use forest resources the Authority shall make such permission subject to the existing rights of other Persons. Section 20.10 Citizen suits and civil enforcement

(a) A person harmed by a violation of any provision of this Law, the accompanying regulations, or the Code of Forest Harvesting Practices, may bring an action against any responsible person except the Government and its employees…


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Annex IV: World Bank survey findings in Liberia

In 2008, a team of World Bank consultants, led by John Bruce, reviewed Liberia’s land-related legal framework and current land tenure situation. An excerpt from the team’s final report “Insecurity of Land Tenure, Land Law and Land Registration in Liberia (October 2008)” is reproduced below:200

1. Today, security of land tenure in today’s Liberia is weak to non-existent.

Land law and policy issues

2. The legal distinction between public land and tribal lands lacks clarity, resulting in tensions between government, which has long asserted ownership of and the right to alienate large areas of land occupied by traditional communities, and those communities, who regard this land as their own.

3. There is a need to re-examine the provisions of the laws concerning public land and its

alienation and the law concerning the rules and regulations on the “hinterlands”. All reflect extensive claims to state ownership of land and resources on land under customary law, and such claims have been the source of political tensions which contributed to the conflicts of the past decades. There is a need for redress, and a careful rebalancing of interests to both enhance rural livelihoods and permit the exploitation of valuable resources in the national interest. Such redress must, once standards are clear, involve survey and registration of both public land and the land of rural communities.

4. The law concerning sale and concession of public land are rudimentary, outdated and

require fundamental reforms. The provisions as they stand, largely in the Public Land Act, provide for prices at archaic levels, do nothing to assure that those granted land will develop it, and produce much less revenue than should be the case. They have also created substantial resentment among local people who have been denied use of the land. Legal reforms are long overdue.

5. There are fundamental issues of takings that need to be considered. Substantial areas

of land taken from local communities for concessions have been only partially utilized, and some of this land should be returned to those communities. In addition, there is considerable irregular occupation of land of others, due to dislocations during the war, to be dealt with. In order to encourage utilization of such land, and ease the problems related to land access for those affect by war, consideration should be given to a variety of mechanisms that would allow those occupants who have been using the land for some time to remain on the land, while at the same time recognizing the legitimate claims of those who owned the land.

6. The customary law of Liberian ethnic groups is remarkably poorly documented, and

studies to establish a fundamental typology and parameters is a priority, as is documentation of the handling of customary law by the Liberian courts. It is important to understand not only the substance of that law as applied but also its processes and the institutions. For instance, reformers will need to understand the extent to which officially recognized custom and administration have deviated from indigenous models, and the extent to which there exists a competition between recognized and indigenous models on the ground. There is a need to provide stronger recognition and protection to customary rights to land and to that end, to reorient Liberian legal education to address customary as well as other law.

200 World Bank, Liberia: insecurity of land tenure, land law and land registration in Liberia, report no. 46134-‐LR (2008) xii-‐ xv.


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7. Institutional Frameworks for Land Management: There is no national land policy; and the national institutional framework for land administration and management is improperly designed, uncoordinated and ineffective.

8. Consideration should be given to the development, based on a clear land policy, of a

new comprehensive Land Law. This will require as a first step a careful, comprehensive and critical review and assessment of the law concerning land, a task which has not yet been undertaken. A comprehensive land law would need to harmonize the operation of these bodies of law, and perhaps provide for their eventual integration. There is a need to re-examine the provisions of: the law on public land and its alienation, the law concerning ownership of natural forests, and the rules and regulations on the “hinterlands”, the interior of the country beyond the zones of early Amero-Liberian settlement.

9. All the provisions reflect extensive claims to state ownership of land and resources on

land which has been governed by customary law. There is a need for a careful rebalancing of interests to both enhance rural livelihoods and permit the exploitation of valuable resources in the national interest. It is critical that government recognize the property rights of local communities. It will be important to survey and register both the land of rural communities and the remaining public land. As indicated earlier, it would be preferable if Government could move slowly and very carefully on with any public land sales and concessions until these issues are resolved. The criteria and pricing of such sales and concessions will ultimately need serious reconsideration.

10. There are fundamental issues of equity that need to be considered. Substantial areas

of land taken from local communities for concessions have been left largely utilized, and some of this land should be returned to those communities. There is considerable irregular occupation of land of others, due to dislocations during the war, and to encourage utilization of such land there is a need to find ways to allow those occupants who have been using the land productively in recent years to remain on the land, while at the same time recognizing the legitimate claims of those who own the land.

11. Consideration should be given to the development, based on a clear land policy, of a

comprehensive land law that harmonizes the operation of statutory and customary law and addresses the equity issues originating in Liberia’s colonial past.

Land administration, deeds, and cadastral issues 1. The delineation of administrative units in the counties can be described as chaotic.

Today there is often overlap and jurisdictional ambiguity between the state-supported customary units (clan and paramount chieftaincies) with the townships and cities that are subject to the statutory system. In such cases, the key question i s who is the relevant authority.

2. Decision-making authority over land is fragmented among a half-dozen state agencies,

without an effective coordinating institution. 3. The Deeds Registration System is in disarray. Records under that system have been

scattered, damaged and in many cases destroyed, and this is encouraging widespread fraud and malpractice in land transactions. There is an urgent need to collect, consolidate and conserve these records, and to digitalize them for easy access in both land administration and land dispute settlement. There is also a need to consider measures for simplification of deed registration processes….The old deed registration system which existed before the war did not adequately record land transactions, making it very difficult to track land sales. The war has resulted in missing deeds, deed records and databases, resulting in high risk in the land market and in an epidemic of fraudulent land deed and other documents, allowing sales of the same piece of land to several people.


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4. As a result of problems with the deed system, the court dockets are crowded with land

disputes which have to be dealt with and cleared 5. Most countries in Africa have a cadastre that is at least partially functional. Currently,

there is no cadastre and no effective and reliable land information system in Liberia. 6. The Department of Land Surveys and Cartography is in a deplorable state. The Bureau

of Lands & Surveys has been relocated and is now sharing space with the Liberian Cartographic Services in a dilapidated rented building with inadequate furniture, no electricity, and hardly any office or technical equipment.

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