Safeguards failing to protect customary rights during large-scale land acquisitions

Photo courtesy of Anne Wangalachi/CIMMYT

BOGOR, Indonesia (25 November, 2011)_ Legislation and practices aiming to safeguard customary land rights are largely failing to give real decision-making authority to communities affected by large-scale land acquisitions in sub-Saharan Africa, says a recent report by the Center for International Forestry Research.

This has seriously undermined the widely anticipated benefits from the recent surge in land-based investments for food, fuel and fiber on the continent.

“That some of the most progressive laws and policies on land tenure in the continent are failing to secure the rights of rural and customary land holders in the context of private sector land acquisitions is a cause for concern,” says Esther Mwangi, CIFOR scientist and one of the authors of, Contemporary processes of large-scale land acquisition by investors: Case studies from sub-Saharan Africa.

“Evidently, laws on paper do not automatically translate into required actions on the ground, even more so where strong and contradictory incentives exist to revise, re-interpret and weaken these laws and the intentions behind them.”

While Africa has historically been largely sidelined by foreign investors, it is becoming an increasingly attractive destination for farmland investments due to its relative abundance of cheap and agroecologically suitable land and the narrowing of investment opportunities elsewhere.

Over the last decade, rising food prices and policy commitments to biofuels as an alternative to fossil fuels have also led to a rapid expansion in foreign investments in land for the cultivation of food and biofuel crops in Sub-Saharan Africa. A 2011 study by the World Bank found that of an estimated 56.6 million ha of large-scale farmland deals to have been announced in 2008 and 2009, more than 66% targeted Africa. This demand is estimated by World Bank economist Klaus Deininger to be equivalent to more than 20 years of agricultural land expansion in Africa.

Governments of host countries view these large-scale agricultural investments as an opportunity to create jobs, modernize the agricultural sector, provide market opportunities for small-scale growers, improve the balance of trade (through import substitution and exports) and generate government revenue.

However, recent research by CIFOR and others suggests that such benefits to the national economy and to local communities are often illusive. The tendency of host country governments to offer very generous fiscal incentives to attract investors, deficiencies in mechanisms to mitigate the negative social and economic impacts of displacement, and in some cases, the failure of alternative employment to generate more income than that which was generated by the land uses that were displaced often undermine such benefits in practice.

In much of rural Africa, systems of collective ownership under customary, rather than statutory, law continue to govern claims to land and resources. While a majority of African governments have implemented land reform programs to extend legal recognition to customary rights, customary claims are rarely afforded the same legal protection as formal property rights and remain susceptible to expropriation.

With investment flows in Africa having become increasingly contingent on ease of access to land, strengthening customary rights and ‘investment promotion’ are threatening to become conflicting policy objectives. This tension raises very real challenges to land governance on the continent, where large-scale land acquisitions are often portrayed as ‘neocolonial land grabs’.

Given the high stakes involved for society, it is important to ask the question, “To what extent are host countries prepared to leverage meaningful benefits from these investments and to mitigate their social and environmental costs?”

The current study examined legislation and practices associated with foreign large-scale land acquisition in Ghana, Mozambique, Tanzania and Zambia. All of these countries were found to have constitutional, policy and/or legislative provisions to safeguard customary land rights and provisions to consult customary land owners during land transfer. However, these countries differed considerably in the extent to which customary landholdings are protected from expropriation, the duration of land leases (25 to 99 years) and permanence of land loss, and the quality of processes for identifying suitable land and consulting and compensating customary land users.

The study also found that the thoroughness of the consultative process between investors or government agencies and local land users which ensures the acceptability of land transfer and sets the conditions under which it may occur was deficient in all countries studied. What in some countries is legislated to be a lengthy consultation process to make land available to investors or to reach an agreement on levels and forms of compensation was found to often be limited to a single meeting, rendering these processes mere formalities.

When exploring actual practices associated with the negotiation of large-scale land transfers, the study found the role of government, the quality of the negotiation process and the expectations that customary land users bring to the table each had an instrumental role to play in undermining due process.

In three of the four countries studied, the government was found to play an active role in promoting  foreign investment, through generous fiscal incentives, improvements in the ‘investment climate,’ by facilitating investors’ access to land through policy reforms to liberalize land markets, and the establishment of government land banks.

According to Mwangi, the evidence suggests a tendency to re-centralize previously decentralized land administration and management under the guise of investment promotion for economic growth and poverty reduction.

“Although most of the countries have somewhat clear accountability measures during land acquisition processes, they appear not to have been implemented or were implemented only partially,” said Mwangi.

The observed alignment of government agencies with the interests of industry has a number of causes, suggests the study. Pervasive ideologies which inflate the benefits of industrial-scale agriculture and private sector investment while minimizing its costs were found to establish a widespread pro-investment orientation. These, together with conflicts of interest and rent-seeking behavior in some cases, were found to be in sharp contrast to systematically under-resourced regulatory functions designed to mitigate negative social impacts and ensure investor compliance with commitments. With official policies emphasizing investment promotion and agroindustrial development, agencies end up in a supportive role with little political backing to enforce environmental laws and investment and employment commitments.

In most cases customary land users initially welcomed the prospect of “development” through a large-scale investment project, with expectations hindering on formal employment and improvements in schools, health clinics and roads. However, the outcomes of many negotiations were found to be the subject of concern, resistance or outright conflict – or, in the case of Ghana, where land access is not perceived by local land users as a right but a benefit acquired through the benevolence of the chief – passive acquiescence.

Community consultations in Mozambique, Tanzania and Zambia were found to be overwhelmingly mediated by government actors, often with transactions that are not fully disclosed, a tendency to emphasize the benefits of investment to the exclusion of its potential costs, and a high level of coercion.

Yet the role played by customary leaders themselves has often undermined the spirit of consultations as laid out in the legislation. Customary authorities tend to have a very limited understanding of their (often constitutionally mandated) responsibility to act on behalf of their constituencies, and more often than not were found to make decisions on chances for personal gain rather than collective interests.

Even with the most enlightened legislative protections and negotiation processes, challenges of awareness and foresight will remain. This is because much of what is involved in a community’s decision to give up its most valuable asset, and how it values these assets, has as much to do with its starting point as it does the legal underpinnings and processes of large-scale land acquisition.

The desperate need for services and market outlets, and often unrealistic expectations about the ‘development’ this may bring, will continue to undermine the likelihood of a ‘fair deal’. This points to the importance of neutral, trusted and qualified third parties to assist in brokering these deals when considered by affected communities to be desirable.