SIERRA LEONE: LAND GOVERNANCE ASSESSMENT FRAMEWORK (LGAF) Draft Final Report PETER M. KAINDANEH (COUNTRY COORDINATOR) With contributions from Expert Investigators: Joe A D Alie Salieu Barrie Alphajoh Cham Floyd Davies William Farmer K M Foray Ibrahim Sorie Koroma Joe Rahall Buawah Jobo Samba Sourie Turay September 2015 ACKNOWLEDGEMENTS This work would not have been started without the support of the Honourable Minister of Lands, Country Planning and the Environment (MLCPE). I am particularly grateful to the collaboration of key members of the MLCPE. The immense work that went into research and meetings among the Expert Investigators (EIs) is worthy of recognition. The whole exercise revolved around the expertise of this set of professionals, who were always willing to meet or pick my calls to have clarity on legal concepts and processes, civil society experiences, and the workings of government ministries, department and agencies with anything to do with land matters. The detailed and excellent Background Reports emanated from these people. I am equally indebted to all the Panel Members, whose active interest and participation helped to reshape the some of the thinking of the EIs. I can never express enough gratitude for the roles these two sets of people played in getting to Assignment to this stage. I would be amiss in this duty if I did not recognize the VGGT Team for their ever-present interest in the Sierra Leone LGAF process, through which I was always invited to participate in their Technical Committee, and Steering Committee Meetings. We learnt a lot from these interactions. The Africa LGAF secretariat, based in Kenya and the global LGAF Secretariat, located in the World Bank deserve special mention. Apart from getting Sierra Leone on the list of countries to undertake the assessment, the supervision and monitoring of the work in Sierra Leone contributed greatly to this product. There were times when I was so overwhelmed with this work that, had it not been for Thea Hilhorst, and Sue Mbaya, I would have thrown in the towel long time ago. I am personally grateful for the patience of these two ladies. As part of the African LGAF Secretariat, the Technical Advisory Group of eminent land scholars in Africa improved the background reports with their incisive comments. I thank each and every one of them. As one of the last Country Coordinators to get on board, I am grateful to all the assistance provided by the more experienced Country Coordinators, during meetings and through personal email exchanges. I take this opportunity to thank my Research Assistant, Mr. Salieu Mohamed Barrie for all the work he put in over these past 9 months. While at this, I must thank The Economic Forum for making its offices and facilities available to all the EIs, and for hosting most of the Panel Meetings. The contributions by all these colleagues almost came to nothing with the advent of the Ebola. This epidemic almost put a complete stop to the activities of the LGAF Team, but for the vigorous intervention of the Government of Sierra Leone and its development partners. 1|Page Finally, the Sierra Leone LGAF would never have been undertaken without funding from the World Bank. As a country we are grateful. 2|Page CONTENTS ACKNOWLEDGEMENTS ............................................................................................................ 1 ACRONYMS AND ABBREVIATIONS ....................................................................................... 6 executive summary ......................................................................................................................... 7 1.0 Introduction ....................................................................................................................... 10 2.0 Methodology ..................................................................................................................... 12 2.1 Preparation Stage .......................................................................................................... 12 2.2 Background Reports...................................................................................................... 13 2.3 Panels ............................................................................................................................ 13 2.4 Technical Validation workshop .................................................................................... 14 3.0 Context of Land governnace in sierra leone ..................................................................... 15 3.1 Governance Systems ..................................................................................................... 15 3.2 Socio-economic Context ............................................................................................... 16 3.3 Land and resource systems ........................................................................................... 18 3.4 Land Tenure Related Legislation .................................................................................. 19 3.5 Sierra Leone Land Reform............................................................................................ 23 3.6 Land Tenure typology ................................................................................................... 25 4.0 Institutional Framework .................................................................................................... 28 5.0 Results of land governance indicator assessment ............................................................. 33 5.1 Panel 1: Land Rights Recognition ................................................................................ 33 5.1.1 Recognition of continuum of rights .......................................................................... 33 5.1.2 Respect for and enforcement of rights ...................................................................... 36 5.2 Panel 2: Rights to Forest and Common Lands & Rural Land Use Regulations ........... 40 5.2.1 Rights to forest and common lands ........................................................................... 40 5.2.2 Effectiveness and equity of rural land use regulations ............................................. 44 5.3 Panel 3: Urban Land Use, Planning and Development................................................. 45 5.3.1 Restrictions on rights: land rights are not conditional on adherence to unrealistic standards ................................................................................................................................ 46 5.3.2 Transparency of land use restrictions: changes in land use and management regulations are made in a transparent fashion and provide significant benefits for society in general rather than just for specific groups. .......................................................................... 50 3|Page 5.3.3 Efficiency in the urban land use planning process: land use plans are current, implemented, do not drive people into informality, and cope with urban growth. ............... 53 5.3.4 Speed and predictability of enforcement of restricted land uses: development permits are granted promptly and based on reasonable requirements. ............................................... 58 5.4 Panel 4: Public Land Management ............................................................................... 61 5.4.1 Identification of public land and clear management ................................................. 63 5.4.2 Justification and time-efficiency of acquisition processes: the state acquires land for public interest only and this is done efficiently ..................................................................... 66 5.4.3 Transparency and fairness of acquisition procedures: acquisition procedures are clear and transparent and fair compensation is paid expeditiously. ...................................... 67 5.5 Panel 5: Transfer of Public Land to Private Use Follows a Clear, Transparent, and Competitive Process .................................................................................................................. 68 5.5.1 Transfer of public land to private use follows a clear, transparent, and competitive process and payments are collected and audited (with the exception of transfers to improve equity such as land distribution and land for social housing)................................................ 69 5.5.2 Private investment strategy ................................................................................... 72 5.5.3 Policy implementation is effective, consistent and transparent and involves local stakeholders ........................................................................................................................... 75 5.5.4 Contracts involving public land are public, easily accessible, with agreements monitored and enforced ......................................................................................................... 76 5.6 Panel 6: Public Provision of Land Information - Registry and Cadastre ...................... 78 5.6.1 Mechanisms for Recognition of Rights ................................................................ 79 5.6.2 Completeness of Land Registry ................................................................................ 82 5.6.3 Reliability of Registry Record .................................................................................. 84 5.6.4 Cost - Effective and Sustainability of Land Administration Services ...................... 87 5.6.5 Transparency of Fees ................................................................................................ 89 5.7 Panel 7: Property/Land Valuation and Taxation ........................................................... 90 5.7.1 Transparency of valuations: valuations for tax purposes are based on clear principles, applied uniformly, updated regularly, and publicly accessible ........................... 93 5.7.2 Collection efficiency: resources from land and property taxes are collected and the yield from land taxes exceeds the cost of collection ............................................................. 96 5.8 Panel 8: Dispute Resolution ........................................................................................ 100 4|Page 5.8.1 Assignment of responsibility: responsibility for conflict management at different levels is clearly assigned, in line with actual practice, relevant bodies are competent in applicable legal matters, and decisions can be appealed against. ........................................ 102 5.8.2 The share of land affected by pending conflicts is low and decreasing.............. 104 5.9 Panel 9: Institutional Arrangements and Policies ....................................................... 105 5.9.1 Clarity of mandates and practice: institutional mandates concerning the regulation and management of the land sector are clearly defined, duplication of responsibilities is avoided and information is shared as needed ...................................................................... 105 5.9.2 Equity and Non-Discrimination in the Decision-Making Process: Policies are formulated in a Broad Public Process, Address Equity, and Implementation is Meaningfully Monitored. ........................................................................................................................... 107 6.0 Policy Matrix .................................................................................................................. 108 7.0 Bibliography ................................................................................................................... 117 8.0 ANNEXES ...................................................................................................................... 118 Annex 1: Female Paramount Chiefs in Sierra Leone .............................................................. 118 Annex 2: Sierra Leone Score Card .......................................................................................... 118 Annex 3: Panel Members ........................................................................................................ 123 5|Page ACRONYMS AND ABBREVIATIONS AAV Assessed Annual Value AfDB African development Bank ALLAT Alliance for Large Scale Land Acquisition Transparency AU African Union CC Country Coordinator DFID UK Department for International Development ECA Economic Commission for Africa EI Expert Investigator EPA-SL Environmental Protection Agency, Sierra Leone EVD Ebola Virus Disease F&G Framework and Guidelines FAO Food and Agriculture Organization of the United Nations FDIs Foreign Direct Investments FDP Farmer Development Programme FIA Freetown Improvement Act GOSL Government of Sierra Leone HRCSL Human Rights Commission, Sierra Leone LGA Local Government Act LGAF Land Governance Assessment Framework LPI Land Policy Initiative LRC Law Reform Commission ( MAFFS Ministry of Agriculture, Forestry and Food Security MALOA Malen Affected Landowners Association MDAs Ministries, Departments and Agencies MFMR Ministry of Fisheries and Marine Resources MWHI Ministry of Works, Housing and Infrastructure MLCPE Ministry of Lands, Country Planning and the Environment NCPC National Council of Paramount Chiefs NGO Non-Governmental Organization NLPRU National Land Policy and Reform Unit OARG Office of the Administration and Registrar General SiLNoRF Sierra Leone Network on the Right to Food SLECAD Sierra Leone Chamber for Agribusiness Development SLIEPA Sierra Leone Investment and Exports Promotion Agency TCPA Town and Country Planning Act TORs Terms of References UNEP United Nations Environment Programme UNDP United Nations Development Programme VGGT Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security WFP World Food Programme 6|Page EXECUTIVE SUMMARY There are two main types of land tenure in the country, these include; the Statutory System in the Western Area and the Customary System in the Provinces. The former is regulated by statutory law and the latter by customary laws. But the legal framework governing land delivery in both systems is complex, as there are no fewer than twenty different statutes and regulations and most of them having conflicting provisions, which present implications for land use and management. The concept of traditional or communal tenure tends to be used in a static way, with some referring to the notion of ‘customary’ tenures instead. A range of commonly used concepts of land tenure such as” agreements”, or “the sale of land”, ‘freehold’ tenures, family lands and “ownership” or “holding” of the land are used unclearly or synonymously. The dualistic land tenure system in the country is relatively unreliable, because it is based on registration of instruments of conveyance. This means it is the conveyance itself that confers title, and not the registration of the instruments that executed the conveyance. In other words, registration of deeds or instrument is record evidencing a transaction has taken place and not legal proof of ownership. Proof of ownership rests with the courts. Even more unreliable is the latter system, because it is based on different forms of unwritten customary rules in different parts of the regions, and subjected so much to the whims, caprices and captivations of family, community or chiefdom heads. In spite of the challenges, the customary land tenure system is still operative and functional. Although the system is not fully effective, customary rights are legally recognized, but not adequately protected. This is mainly because land rights are not registered. Only a small percentage of all lands in the rural and urban areas are recorded and mapped. Recording and mapping these lands will greatly reduce the many conflicts that arise from land grabbing. It will also make it easier for agribusiness enterprises to negotiate better with landowners. The constitutional provisions that guarantee right holders a legitimate right to access the justice system to remedy a breach may not be accessible or do not necessarily result in timely and just decisions. There is no operational national land policy in Sierra Leone. However, the Ministry of Lands, Country Planning and the Environment has just completed the development of a new National Land Policy, which is proposing to individualize land. Gender relations on land matters in Sierra Leone have remained largely unaddressed over all these years. This is the reality for many women in rural Sierra Leone, a country where at least 95 percent of its land is governed by customary law. This means that for the majority of citizens, the unwritten traditional rules and practices of tribes or communities determine who is able to hold, use or transfer land. In many ways, the application of rules of customary law in ordinary life has tended 7|Page to affect women more adversely than men. On important issues, women are often treated as minors - needing the agency of a man to act. In worse case scenarios, they are regarded as chattels. The draft National Land Policy 2014 concedes that women, children and youth suffer discrimination and denial of land rights under customary law. The policy makes some concrete proposals to address these shortcomings. There are a number of governmental ministries, departments and agencies (MDAs) operating in the land sector. The most important of these is the MLCPE. However, the assessment of the Ministry shows that there are lots of capacity gaps in the outfit. This capacity gaps include both human and equipment. The same can be said of the other MDAs. There are several instances where there are conflicting mandates. In addition to some ministries, department and agencies (MDAs) deliberately usurping the mandates of others, creating further confusion in the land management arena. There are hardly any town planning schemes against which change in land use or development is approved. Where there are schemes, enforcement has been weak or lacking. In practice, effective land use planning at national, regional and local levels does not really exist. A policy on common property under condominium is lacking. However, in practice, very few private developers have started offering common property under condominiums. In such instances, they allow for effective management of urban properties. Since 2004, there has been a marked improvement in the collection of property taxes. Several recommendations have been put forward from each panel. Among them are:  There is need to review the laws relating to tenure rights all over the country, as proposed in the new National Land Policy;  Government and other stakeholders should ensure that the appropriate legal framework is in place to comprehensively address issues around rural land management, in a sustained manner;  The draft National Land Policy contains robust provisions which carry the potential to break new grounds in protecting women's land rights in Sierra Leone. The challenge now is to make them better and stronger as the policy translates into legislation. These reform proposals could be significantly improved if, (i) surviving spouses and children are able to utilise community or family farmlands without interference; (ii) use rights of women such as the right to collect firewood, medicines, access water sources, etc. are protected under any circumstance; (iii) women's representation in land administration bodies are made mandatory; and (iv) a process by which family or community members could hold those controlling family or community property accountable is established.  There is need for the Government to formulate an urban policy, which will address the issues of slum settlements and the formalization of informal settlements; 8|Page  The Government must enact a new Town and Country Act to address the issues of land use planning and development control.  Spatial planning should be integrated into the sectorial development strategies of all MDAs. Spatial planning in these context should provide a framework for the coordination of urban policies and major infrastructure projects, harmonization of development standards, comprehensively addressing the ecological footprints of urbanization, and a space for public discussion of these issues;  That the MLCPE and the MWHI, the authority responsible for the issuance of building permits, collaborate to make sure that local councils keep track of newly erected buildings;  Digitization/computerization of hard copy registry records at OARG;  That property valuation should be divided into urban and rural areas and the process and format standardised across the country;  A holistic review needs to be carried out to ensure that land disputes are brought to their barest minimum, and dealt within the shortest possible time. Issues ranging from titling to the judiciary should be reviewed and strong deterrent should be in place for to avoid land transactions resulting to dispute.  The statutory mandates of the MDAs should be reviewed and harmonized to address the issues of conflicting and overlapping statutory mandates in land use planning, land management and administration;  The formation of integrity committees at MLCPE and other MDAs should be operationalized, given the high levels of corruption on land related matters in all the MDAs;  e-Governance and interoperability of land data should be introduced to enhance effective coordination and collaboration amongst government ministries, departments and agencies (MDAs);  Given the roles played by civil society organizations, it is important for Government to consider the special roles played by civil society organizations in holding the feet of big agricultural investments companies to the contents of the agreements. They should be a part of all negotiations; 9|Page 1.0 INTRODUCTION The importance of land governance in the socio-economic development of a nation cannot be overemphasized, as the allocation of land across competing uses can determine the type and level of economic activities that can be carried out by individuals, groups, and businesses. The competing use of land (the need for housing, agriculture, industry, mining, etc.) has become a source of conflict in many countries where land governance and management are not clearly defined. The need for a systematic assessment of land governance arises from three factors: policy importance, institutional fragmentation and technical complexity. Firstly, the institutional arrangements governing land have emerged as a key factor for sustainable growth and poverty reduction, which is increasingly supported by continental and global policy initiatives and also in Sierra Leone. Examples are the 2009 African Union Framework and Guidelines on land policy and the 2014 African Union principles for large scale land based investment, and the endorsement in 2012 by the Committee for World Food Security (CFS) of the Voluntary Guidelines for responsible tenure of land, forest and fisheries in the context of food security (VGGT). The Government of Sierra Leone has included effective and sustainable land management as one of its strategic objectives in the Agenda for Prosperity (AfP) 1 for 2013-2018, including the adoption of a comprehensive land use policy that is understood by all, and aimed at ensuring optimal gains for the overall development of the country. However, the Policy itself has not gone through Cabinet yet. After which it has to go through Parliament. Another development is the start of the VGGT process in Sierra Leone as part of the G8 commitment. Although at the onset of the CAADP, the VGGT process had not been conceived, it there is now a clarion call the inclusion of the VG principles into CAADP investment compacts; to harmonize policies of different ministries; and to set up complaint mechanisms at national levels The revised National Housing Policy, 2006 provides for access to safe sanitary and decent housing and services, either on home ownership or rental basis, for all Sierra Leoneans, particularly for low-income and vulnerable groups. Secondly, as a result of institutional fragmentation and duality in tenure systems where responsibility for land is spread over a large number of government institutions in Sierra Leone, with often poor coordination and overlaps; there can be a wide gap between legal provisions and their actual implementation. Thirdly, the technical complexity and context specificity of land issues, and the fact that change may be resisted by powerful stakeholders benefiting from the status quo, implies that progress will depend on the ability to forge a consensus among experts in a participatory and deliberative process, based on a comprehensive analysis. 1 http://www.undp.org/content/dam/sierraleone/docs/projectdocuments/povreduction/undp_sle_The%20Agenda%20for%20Prosperity%20.pdf 10 | P a g e The land governance assessment framework (LGAF) was developed by World Bank, in partnership with FAO, IFAD, IFPRI, UN Habitat and the African union Land Policy Initiative to facilitate An analysis of this nature, would allow for the comparison of the state of land governance in Sierra to global good practices in key areas of responsible land governance such as: (i) how rights to land (at group or individual level) are defined, can be exchanged, and transformed; (ii) how public oversight over land use, management, and taxation is exercised; (iii) the extent of land owned by the state is defined, how the state exercises it, and how state land is acquired or disposed of; (iv) procedures in place to deal with large-scale land-related investment; (v) the management of land information and ways in which such information can be accessed; and (vi) avenues to resolve and manage disputes and hold officials to account. The results of The LGAF in Sierra Leone will feed into the ongoing VGGT discussions. The World Bank generally organizes a high level policy dialogue with the government to discuss key conclusion and policy recommendations. There has already been a lot of collaboration between the VGGT and the LGAF processes taking place in Sierra Leone. In fact, one of the recommendations of the VGGT Multi-Stakeholders Meeting held in April 2014 was for the LGAF process to take place in Sierra Leone. This report starts with a presentation of the methodology used in the implementation of the LGAF in Sierra Leone. It will provide an overview of the role of land in the economy and the history and context of land and tenure governance in Sierra Leone. It then presents the results of the assessments, followed by for improving land governance. Finally, it presents the policy matrix in relation to land matters in Sierra Leone. 11 | P a g e 2.0 METHODOLOGY Land Governance Assessment Framework or LGAF is a country level tool, for an independent and comprehensive assessment of land governance guided by a framework of indicators, and undertaken by local experts using existing data and information. It supports evidence based and participatory policy development. The various stages used by the Sierra Leonean LGAF Team are presented below: 2.1 Preparation Stage During the preparation stage, the Country Coordinator worked with the LGAF Global Secretariat and the African Secretariat to agree on expert 9 (nine) investigators (Table 1), who would gather information on each of the nine panels identified in the LGAF manual:  Land Rights Recognition  Rights to Forest and Common Lands & Rural Land Use Regulations  Urban Land Use, Planning, and Development  Public Land Management  Transfer of Large Tracts of Land to Investors  Public Provision of Land Information: Registry and Cadastre  Land Valuation and Taxation  Dispute Resolution  Institutional Arrangements and Policies The Country Coordinator and EIs identified all existing legal frameworks related to the topics. After this, relevant data was collected from the relevant government institutions, NGOs and private sector participants, by the appropriate EIs. Table 1: Expert Investigators # Panel Title Name of Expert Investigator(s) 1 Land Rights Recognition Joe A D Alie and K M Foray 2 Rights to Forest and Common Lands & Rural Land Sourie Turay Use Regulations 3 Urban Land Use, Planning, and Development Alphajoh Cham 4 Public Land Management Floyd Davies 5 Transfer of Large Tracts of Land to Investors Joe Rahall 6 Public Provision of Land Information: Registry Dr. William Farmer and Cadastre 7 Land Valuation and Taxation Peter M. Kaindaneh 8 Dispute Resolution Ibrahim Sorie Koroma 9 Institutional Arrangements and Policies Peter M. Kaindaneh 12 | P a g e 2.2 Background Reports LGAF Framework is based on international standards of good land governance and constructed around nine thematic modules, each composed of land indicators and dimensions, with predefined scores from A to D. The scoring is, as much as possible, quantified with the thresholds being defined according to what is regarded internationally as good practice. The scores indicate where a country is doing well and areas for improvement. The framework provides a format that facilitates the communication of findings and recommendations with policy makers. Using these guidelines, the EIs prepared Background Reports for all the Panels. These were briefly reviewed by the Country Coordinator, and later sent to the LGAF Secretariat for more in-depth reviews. Comments from the Secretariats were considered in revised reports by the EIs. After the Secretariat clears a Background Report, it is forwarded to the Technical Advisory Group (TAG) of eminent scholars on land issues in Africa. Comments from the TAG are taken into consideration for a final revision of the Background Reports. 2.3 Panels While all this process of reviews and revisions of the Background Reports were going on, the Country Coordinator with the EIs identified a list of stakeholders with knowledge of areas relating to all the panels, to participate in discussions relating to the scores provided by the EIs for each dimension; and the attendant recommendations. The Sierra Leonean Team conducted nine panel meetings to share the findings of the EIs. Each Panel consisted of three to five experts, including specialists in the legal and legislative issues regarding land use and property, civil society organisations, women organizations, government institutions, and others working on land planning and development as well as managing public lands. To assemble these experts, the Country Coordinator prepared a list of institutions from government, the private sector, NGOs and academia, and then contacted them to identify at least 4 members who would be interested in sharing their knowledge and experience with the LGAF project. All the institutions responded favourably. In the end we were able to identify a total of 44 such experts. The panel meetings took place over a 2-day period. The Country Coordinator began each panel with a presentation about the objective of the meeting, its agenda and working procedures. He also explained the dimensions related to each panel and the actual assessment procedures. Although panel members had received assessment tables ahead of the meetings, it not all of them had taken the time to go through their scores before the meeting. Participants, therefore, were given time at the beginning of each meeting to do so. In order to provoke lively discussions, the moderator displayed on a screen the preliminary scores that each panel member had given to the dimensions. The second part of the meeting was dedicated to discussions and debate, aimed at reaching a consensus in assessing each dimension. The panel also discussed possible recommendations for policies, research and reforms. For some of the dimensions, the consensus score agreed by the 13 | P a g e panel differed from those of the EIs. These final scores are presented in Annex 2, as the Sierra Leone Score Card. Each Panel produced an Aide Memoire, which covered how the discussions went and provided the final scores and recommendations. The EIs then use the Aide Memoire to finalize the Background Reports. The Country Coordinator put together a Country Synthesis Report, from the revised Background Reports. 2.4 Technical Validation workshop The LGAF Global Secretariat and the African Secretariat agreed with the Country Coordinator to organize a Validation Workshop just before the VGGT Second Multi Stakeholders Workshop, scheduled for September 28th and 29th, 2015. The LGAF Validation Workshop was conducted on September 25th, 2015. It was attended by representatives of all the MDAs involved in land matters in the country, the President of the National Council of Paramount Chiefs, Members of Parliament, the EIs, panel members, civil society organizations (including National Federation of Farmers of Sierra Leone and the 50/50 Women’s Group), the local press, VGGT Secretariat, and representatives from World Bank, including the Global Coordinator, Land Governance Assessment Framework. After the opening remarks by the Global Coordinator; and the Formal opening of the Workshop by the Permanent Secretary of the Minister of Lands Country Planning and the Environment, the Country Coordinator described the land governance situation in Sierra Leone, based on the Country Score Card. After this, each EI presented their panel scores, with justifications and recommendations. Plenary sessions after each presentation took place, during which participants challenged some recommendations. The discussions were very lively, and participatory. All the 9 panels were exhaustively discussed. It was agreed that another session be arranged just for a review of the Panel Dimension Scores and the Policy Matrix. This meeting took place on October 9th, 2015. The Country Coordinator took all suggestions, agreed on during the Workshop, to improve on the Synthesis Report, which will end up as a Final County Report. Quality assurance and technical guidance to the country team were provided by the Africa LGAF Secretariat and the global LGAF Secretariat located. An international Technical Advisory Group (TAG) of key African experts working under the Africa LGAF secretariat has reviewed each background report. The background reports were ready by end February 2015; panels were held in the first week of March, and draft synthesis report ready by mid-September 2015. 14 | P a g e It is worth noting that the work on the LGAF was carried out during the peak of the Ebola epidemic in Sierra Leone. Our work was, therefore, affected as indeed everything else in the country. The Team was, however, resourceful enough to carry out our activities safely. 3.0 CONTEXT OF LAND GOVERNNACE IN SIERRA LEONE 3.1 Governance Systems Sierra Leone was founded formally in 1787 and became a British Crown Colony in 1807. The population of the Sierra Leone peninsula, Freetown and its environs increased following the release of slaves from vessels arrested by the British navy off the coast of West Africa. These “recaptives”, as they became known, settled in Freetown and the nearby villages, forming the nucleus of a distinctive inter-African society linked by a common language, Krio, and an area that has come to be commonly known as the Western Area. The 1890s saw the British advance into the interior, and by a British Protectorate Ordinance of 1896, formal British rule had extended to the rest of what we know today as Sierra Leone, divided between Colony and Protectorate. The Sierra Leonean state is built around the system of indirect rule created by the British in 1896, which is based on a symbiotic relationship between national politicians and local traditional rulers, though the tradition is to a large extent invented, (Acemoglu, Chaves, Osafo-Kwaako, & Robinson, 2014). This system has lasted 119 years, though with some notable adaptations after independence in 1961. It may even have in some sense become stronger after the civil war ended in 2002, when real political competition emerged for the first time since the 1960s. The longevity of the system and the way it was re-created after the civil war suggests that it has quite robust features, even if it leads to a severe under provision of public goods. Today, Sierra Leone is a parliamentary republic with a governance structure based on a decentralised system of central government, and local (city-, municipal-, and district-) and chiefdom councils. The country is operating under two types of governance systems that fall into different geographical areas of the country.  The Western Area and the capital Freetown (former British colony) operate under general law, comprising a system of pre-independence English common law and post- independence statutory law.  The Provinces, to the North, East and South, (former British protectorate) operate under a dual system of general law and customary law, of which the latter is the most dominant. Customary laws, which vary between the chiefdoms, are mostly unwritten, but nevertheless enforceable, because they are recognised in national legal framework. In case of inconsistency between the two law systems, customary law can be overruled by statutory law. The Provinces are ruled through a customary system of 149 chiefdoms with local administration being coordinated through Paramount Chiefs and chiefdom councils, with section- or sub-chiefs. Paramount Chiefs are endorsed by the president and rule for life, although they could be removed, according to S19 of the Chieftaincy Act 2009, which states: A Paramount Chief may be removed from office by the President for any gross misconduct in the performance of the functions of his 15 | P a g e office if after a public inquiry conducted under the chairmanship of a Judge of the High Court or a Justice of Appeal or a Justice of the Supreme Court, the Commission of Inquiry makes an adverse finding against the Paramount Chief, and the President is of the opinion that it is in the public interest that the Paramount Chief should be removed. They are elected by the councilors of the chiefdom and come from a ruling family. The role of paramount chiefs was re-established and strengthened following the end of the conflict via the chieftaincy act of 2009 and in the new decentralized system, (USAID, 2010). In the Western Area, local administration is supported by a customary system including village headmen who are democratically elected and provide village representation. The recent history in Sierra Leone has been turbulent and the country experienced a period of conflict and violence from 1991 to 2002, causing much loss of lives, displacement (affecting more than a quarter of the population at one time) and migration from the country to mostly Liberia and Guinea. It destroyed the economy, infrastructure and also the social fabric of the country, with many paramount chiefs killed during the period. 3.2 Socio-economic Context Sierra Leone has a total land area of 71,620 square kilometers, of which the Western Area covers an area of only 537 km2 or 0.7% of the total land mass. The country has an estimated population of 6.2 million people with population growth having averaged 2.5% over the past decade, and of whom 40% live in urban areas – mostly in the Western Area (WDI - 2014)2. Urban population has grown particularly in the years of conflict, and resulted in many slums and urban sprawl. Only 23% of the urban population has access to improved sanitation facilities (2012 data -WDI)3. The geography consist of a coastal zone (the “Colony” or Western Area) with mangrove forests and the main urban centers, wooded hill country - with inland valleys and wetlands used for rice farming, with fallow and forests, and fisheries, and upland plateau, and mountains in the north, south and east of the country. An estimated 56% of the land is potential farm land and 37% was forest in 2014 (WDI4). About 1% of Sierra Leone’s land is under cultivation, and roughly 5% of cropland is irrigated. According to (African Development Bank, 2013), of all forest and woodlands, 85% is community-managed and under customary tenure. The remaining forest are State administered forests of which 48% are managed for biodiversity conservation and watershed conservation. The country is rich also in mineral resources like iron ore, diamonds, rutile, bauxite, gold and offshore oils. In the last decade, Sierra Leone has exhibited high robust economic growth rates, ranging from 6% to 15% annually per year. However, the growth is significantly driven by the extractive industry, which is largely non-inclusive and undiversified. The Gini coefficient is still high with 50% of income attributable to the top 20% of the population. Rapid economic growth has had limited impact on poverty reduction and employment generation, creating resentment and limited trust in the Government. The economy is driven by primary commodities, mainly agriculture and mineral production. The mining sector contribution to GDP is projected to substantially increase 2 http://data.worldbank.org/indicator/SP.POP.TOTL 3 http://data.worldbank.org/indicator/SP.POP.TOTL 4 World Development Indicators data base was accessed in august 2015 16 | P a g e from 4% in 2011 due largely to the expansion in existing large scale iron ore operations. Agriculture including forestry and fisheries still accounts for the largest GDP share, but that share is expected to decline though it will remain largest employer for the foreseeable future, and accounts for over 70% of the current labor force. The mining sector, the current driver of growth in the economy, accounts for less than 3% of total formal labor force, due mainly to the capital- intensive and enclave nature of mining operations and reliance on highly skilled labor. The service sector, which is led by banking, retail, transport and tourism, has a 28% share of GDP in 2013 (AfDB, 2013)5. Land in Sierra Leone is a vital natural resource that is not only rich in minerals, but fertile for agricultural production. Its forests and other types of common property resources play a vital role in the livelihood of the rural poor. In addition to the resources they provide, whether in the form of fuel wood, fodder, grazing lands or other produce (all of which strongly supplement and prop up agricultural economies) these land resources are critical to the maintenance of a delicate ecological balance, the impact of which is felt far beyond their immediate surroundings. The government has included effective and sustainable land management as one of its strategic objectives in the Agenda for Prosperity (AfP)6 for 2013-2018, which is the economic strategy paper of the country. One of the strategic priorities in the AfP is the adoption of a comprehensive land use policy that is understood by all, and aimed at ensuring optimal gains for the overall development of the country combined with a single national land register for all parcels in the country using IT technologies and GIS. Such land policy, it is hoped, would strengthen coordination between land institutions and overcome fragmented and unregulated land markets in order to ensure the enhanced and sustainable management and exploitation of land in Sierra Leone. The government has been very active in promoting large-scale foreign investment in arable land in the country. The Sierra Leone Investment and Export Promotion Agency (SLIEPA) has, since 2009, been spearheading the drive for foreign direct investment in agriculture. However, this investor influx on an industrial scale has set in motion a number of challenges exposing the unpreparedness of MDAs engaged with dealing in investment in the land and agriculture sectors. It has been estimated that 635,000 ha7 of agricultural prime land has been leased so far. The GNI per capita increased from 470 USD/year in 2010 to 720 USD in 2014 (WDI data), but is expected to decline due to the fall in iron ore prices on the World Market and the Ebola crisis. According to the WDI, the value added of the agricultural sector to GDP increased from 56% in 2010 to 61.6% in 2014; the contribution of the forestry sector went down from 10% in 2010 to 7.6% in 2014 and mineral rents went down from 0.7% to 0.3% in 2014. The national Poverty headcount ratio at $1.25 a day (PPP) (% of population) is 56.6% (2011) with a rural poverty headcount ratio of 66.1% (2011) of the rural population and an urban poverty headcount ratio of 31.2% (WDI data). 5 http://www.afdb.org/fileadmin/uploads/afdb/Documents/Project-and-Operations/2013-2017%20- %20Sierra%20Leone%20Country%20Strategy%20Paper_01.pdf 6 http://www.undp.org/content/dam/sierraleone/docs/projectdocuments/povreduction/undp_sle_The%20Agenda%20f or%20Prosperity%20.pdf 7 http://www.oaklandinstitute.org/understanding-lan-investment-deals-africa-sierra-leone 17 | P a g e The Ebola virus disease (EVD) has wrecked severe damage on the economies of the three most affected countries of Guinea, Liberia and Sierra Leone. By end of August 2015, Sierra Leone has reported more than 12,900 cases of EVD and over 3,900 deaths since the outbreak in 2014. In recent months, substantial progress has been made, with up to 0 cases per week, since the start of October 2015. Employment rates are returning to pre-Ebola outbreak levels. However, the hours that people work are still below baseline levels, especially in rural areas. Also, many households lack capital to reopen their business and non-farm household enterprises. Nearly a third of the country’s workforce—report lower revenues than before the Ebola crisis8. The EVD has resulted in flat or negative income growth in all the affected countries, creating large fiscal needs; and threatens to erode food security in all three countries. In Sierra Leone, for example, approximately 215,000 tons of rice is estimated to be imported in 2015 according to the UN's Food and Agriculture Organization (FAO) cited in (Kaindaneh, 2015). 3.3 Land and resource systems Sierra Leone operates on a dual land tenure system, which has its origins in the Colonial period, through the establishment of a “colony” (now Western Area) in the coastal area and the “protectorate” (now the provinces) following the establishment of a protectorate via the British Protectorate Ordinance of 1896 that expanded formal British rule to the rest of Sierra Leone. It mirrors the two types of governance systems for different geographical areas of the country as introduced earlier in this chapter and also affects the court system9.  Western area (coastal strip): freehold system based on “general law” that includes the rules of law known as the common law, the doctrines of equity and all enactments of the legislature in force in Sierra Leone, as well as the received English Law in force from 1880 to date.  Provinces: unwritten customary laws is applied in the rural areas (the Protectorate Land Ordinance of 1927; Concessions ordinance of 1937, and Provinces Land Act Cap 122 of 1960). Customary laws are based on the traditions, culture and customs of the ethnic 8 http://www.worldbank.org/en/topic/poverty/publication/socio-economic-impacts-ebola-sierra-leone 9 The Constitution, Act No.6 of 1991, Sec. 120 vests authority in the Judiciary, of which the Chief Justice is the head. Section 120(4) states that the Judicature shall consist of the Supreme Court of Sierra Leone, the Court of Appeal and the High Court of Justice, which are the Superior Courts of Judicature, and such other inferior or traditional courts as Parliament may by law establish. The Act recognised and retained the distinction between the English type and the other traditional courts consisting of the Local Courts and the Group Local Appeals Courts established under the Local Courts Act, 1963. By Section 132 of the Constitution, the High Court has jurisdiction in civil and criminal matters. However, this jurisdiction is limited by Sec. 21 of the Courts Act, 1965, which specifically excludes any action or original proceedings to determine the title to land situated in the provinces other than the title to a leasehold granted under the Provinces Land Act. Sec. 13(1) of the Local Court’s Act, 1963 states: ‘the Local Courts have jurisdiction to hear and determine all civil cases governed by customary law other than cases between Paramount chiefs or tribal authorities involving a question of title to land’. Thus, jurisdiction to hear and determine matters involving a question of title to land arising in the Provinces is expressly vested in the Local Courts as part of their general jurisdiction to hear and determine all civil cases governed by customary law. However, where the matter is between two or more Paramount chiefs or chiefdom councils on a question of title to land, these courts lack jurisdiction. 18 | P a g e groups, and, in reality, vary from one ethnic group to another, due to their established customs. For example, among the tribes in the Eastern and Southern regions of the country, women can be paramount chiefs, but not among the tribes in the Northern region. Customary Law courts operate in the provinces. In the formal setting, disputes are settled by the courts or some dispute resolution authority serving as arbitrator. In the informal settings, traditional leaders decide cases based on customs and traditions of the people with little or no reference to formal rules. Customary law forms part of the general law, but is restricted in its application to the northern, southern and eastern provinces of Sierra Leone. Paramount chiefs are expected to hold the land in trust for land owning families and lineages attached to a particular chiefdom and have to approve each significant land related decision. Customary law will determine locally how the land and its resources are accessed; who can hold and use its resources, and for how long and under what conditions they may be used. Chiefs can grant or obstruct access to land, especially for migrants (strangers). They also preside over land disputes, and influence local social relations, such as positions of the youth and women. Transfer of land rights is effected in two main ways – a primary right (that is, right secured though original settlement of unused land), or through direct allocation of land from the founding lineage to a group member. Primary right can be transferred through inheritance, a gift to a relative or as usufruct (tenancy) to another person on mutually agreed terms and conditions for specified periods of time (rental, sharecropping and “stranger-resident” arrangements). 3.4 Land Tenure Related Legislation This section presents a list of major legislations relating to the land sector in Sierra Leone and its duality. It shows that most of the key laws addressing land rights and governance date before Sierra Leone became independent in 1961. Constitution of 1991 recognizes Sierra Leone’s dual legal system. It grants the right to the enjoyment of property, but does not address the vesting or ownership of land. It preserves the rights and freedoms of the individual including the protection from expropriation without payment or adequate compensation and guarantees the protection from deprivation of property including compulsory possession.10 Protectorate Land Ordinance of 1927 declared that all lands in the Protectorate were vested in the Tribal Authority and that, they held such lands for and on behalf of the native communities concerned. It regulated the exercise of power by the Tribal Authorities to permit the use of, and occupation of Protectorate land by non-natives, S.4 of the Ordinance stated “No non-native shall acquire a greater interest in land in the Protectorate than a tenancy for a term of fifty years; but nothing in this section shall prevent the insertion in any lease of a clause providing for the renewal of such lease, for a second or further terms not exceeding twenty-one Years.” This dichotomisation of rights to land was further cemented by the Concessions Ordinance of 1937 which prevented Tribal Authorities from granting concessions of any Protectorate land for the purpose of cultivation except under the terms of the Ordinance and the earlier Protectorate Land Ordinance of 1927. Any 10 Section 21, 1991 Constitution of Sierra Leone 19 | P a g e concession limited to 1,000 acres; and where it could be shown that it will benefit the Chiefdom needed the Governor’s consent. Leases granted by the Tribal Authority had to be for no more than 50 acres and must not last beyond 99 years unless such lease was to government or for the national good. Provinces Land Act Cap 122 of 1960, which replaced the Provincial Land Ordinance, 1927, reconfirms that supreme authority over land in the provinces is vested in the Tribal authorities11, who hold land for and on behalf of the native communities concerned. Sec. 3 states that no land in the Protectorate shall be occupied by a non–native unless he has first obtained the consent of the Tribal Authority to his occupation of such land. Any non-native who occupies land in the protectorate without the approval of the District Commissioner is deemed as a tenant at will. Sec. 4 adds that no non-native is to acquire an interest in land in the protectorate more than a tenancy for a term of fifty years. However, the tenancy can be renewed for a second or further term of twenty-five years. The rents reserved under such leases are subject to review by the District Commissioner every seven years, from whom there is a right of appeal to the Provincial Commissioner. However no rent shall be sanctioned by the District Commissioner by reason only of the improvements made by the tenant or his predecessors in title. By Sec. 5, the Tribal Authority can purchase any fixture or building left by the tenant and can also pay compensation to the tenant for any economic trees which have been planted by the tenant at a fair value to any incoming tenant of the land. If rural land is required for public purposes, State authorities deal directly with the Paramount chiefs. The General Registration of instruments Act Cap 255, Act, Cap 256 of 1960 makes extensive provisions for the registration of different legal instruments. It provides the time limits within which certain legal instruments are to be registered, and whether such documents are to take effect in the Colony or the Protectorate. By Sec. 11, the Registrar-General is empowered to register any State Grant upon the production and request of the holder of such grant, and to cause to be copied and registered in a Register Book kept for that purpose. Each instrument, apart from a will, is required to have a certificate of registry as well as a plan of the land signed by the person who made it, describing the land or referring to the allotment of land as numbered or described in the instrument of conveyance from the State. Unoccupied Lands Act, Cap 117 of Laws of Sierra Leone 1960 defines Unoccupied Lands as land where it is not proved by the person who is claiming it that beneficial use thereof for cultivation or inhabitation, or for collecting or storing water or for any industrial purposes, has been made for twelve years before the commencement of this Act. By Sec. 3 of this legislation, it is provided that whenever the Director of Surveys and Lands is of the opinion that any land is unoccupied land, it shall be lawful for him to cause such land to be marked out and a notice to be posted on a conspicuous part of the land that such land is ‘Claimed as state Land’, and such notice is to be signed by the Director of Surveys and Lands and dated. The Town and Country Planning Act, Cap 81 1960 established the Town and Country Planning Board in the Western Area. Where the Board is of the opinion that a scheme is to be made for any area, it can make representations to that effect to the Minister who may by order declare that the 11 ‘Tribal Authority’ is defined in Sec. 2 of the said Act as the ‘paramount chief and their councillors and men of note, or sub -chiefs and their councillors and men of note’. 20 | P a g e area specified in the representation shall be a Planning Area. The value of any building or land in such a Planning Area shall be deemed to be the value of the building or land at the date of such declaration Sec.6 (4). State Lands Act No. 19 of 1960 as amended (Crowns Land Ordinance) and is applicable only to the Western Area or former Colony. It makes provision for situations where the government may want to acquire certain lands in order to undertake ‘public works in the Western Area. By Sec. 3, the Minister can authorise his agents or servants to enter into any land to survey and do other acts as may be necessary with a view to appropriating such land. Where the Minister together with Parliament decides that such land is needed for Public works, the Minister is then to do a warrant to direct that such land should be acquired for the service of the State. The Non–Citizens (Interest in Lands) Act, 1966 is applicable in the Western Area only. A non- citizen is defined as any individual who is not a citizen of Sierra Leone, or any company, association or body of persons with more than half of its members of which are not Sierra Leoneans. Sec. 3 of the Act states categorically that no non-citizen shall purchase or receive in exchange or as a gift any freehold land in the Western Area. By Sec. 4, no non-citizen is to receive in exchange or as a gift, any reserved leaseholds in the Western Area without first obtaining a licence from the Board. Reserved leasehold is defined as leaseholds which the unexpired term exceeds 21 years. Devolution of Estates Act No.21, 2007 aim is gender law harmonisation and states in S.1 (1), “This Act shall apply to every person who dies leaving property in Sierra Leone irrespective of religion or ethnic origin”, but the Act preserves the duality and indicates in S.1 (3), “This Act shall not apply to family property, chieftaincy property or community property held under customary law.” Summary Ejectment Act of 2006: Being an Act to amend the Summary Ejectment Act so as to increase the jurisdiction of Magistrates’ Courts in respect of summary ejectment. Local Government Act of 2004 gives local councils, which include District Councils, the power to acquire and hold land. They are also provided under s. 20 (2) (d) with responsibility for the development, improvement and management of human settlements. Sub section (e) also provides that local councils shall draw up and execute development plans. Sub section (j) provides that local Councils shall approve the annual budgets of Chiefdom Council. The 2004 act included also a timetable for the devolution of functions from central government to local councils, and which stated that the Ministry of Lands, Country Planning and Environment will pass over land surveying by 2008, survey units within local councils will be established starting 2006, training will commence 2007 and actual surveying by 2008, including setting up land registration units, training and commencement of registration. Collection of data for land use planning is also set to be passed over by 2007. This remarkably detailed timetable was not implemented. Chieftaincy Act of 2009 provides for the qualification, election, powers, functions and removal of a person as a Paramount Chief or chief and for other matters connected with chieftaincy. 21 | P a g e The 1988 Forest Act creates several categories of forest: classified forest, national protection forests, community forests, and protected forests. Section 2 of the Act provides that should the Minister wish to make any land not owned by the State into a national forest in the Provinces, a lease of not more than 99 years must be entered into and subject to renewal for another 99 years and rent for such land must be agreed with the Chiefdom Council. In the case of land in the Western Area, the Minister is allowed to purchase the freehold. Section 18 of the Forestry Act makes provisions for the constitution of Community Forests. The Chiefdom Council will be able to include a list of existing rights that will be confirmed by the agreement creating the forest and which will hand the management of such Community Forest to the Chiefdom Council (S.19) thus bringing it line with their custodianship of all other lands in the Provinces. A Draft Forestry Policy and Act was developed in 2011 to replace the 1988 Act and set up according to similar guiding principles as the draft Conservation and Wildlife Policy. It acknowledges the environmental role of forest areas and places emphasis on the preservation of the forest environment and establishes a set of policy objectives around forestry land management, forest-based industry and practices, ecosystem conservation, education and awareness, research and monitoring, and capacity building. However, the new Forestry Act has not been approved yet. Wildlife Conservation (Amendment) Act of 1990 captioned “Being an Act to Amend the Wildlife Conservation Act of 1972” relates merely to the definition of terms, modifications and qualifications. For instance, section 25 of the Wildlife Act of 1072 prohibits hunting of elephants in protected forest reserves only whereas section 7 of the Wildlife (Amendment) Act of 1990 prohibits hunting in any forests, protected areas or national parks without the written permission of the Chief Conservator. Further, the 1990 Wildlife (Amendment) Act provided for the change of name from the Forestry Department to the Forestry Division. Despite these minor amendments, the 1972 Wildlife Conservation Act and the Forestry Act of 1988 are still regarded as the substantive legislations on forest biological diversity in Sierra Leone. Mining Act, 2012, establishes the National Minerals Agency to promote the development of the minerals sector by effectively and efficiently managing the administration and regulation of mineral rights and minerals trading in Sierra Leone, including geological survey and data collection activities; to establish a National Minerals Agency Board to provide technical and other support the agency and to provide for other related matters. The Agency shall, specifically undertake the following activities: i. Administer and enforce the mines and minerals Act of 2009, and any other Acts related to the trade in minerals and related regulation. ii. Make recommendations to the Minister for amendment and other improvements in the laws and regulations specified in paragraph (i) above; iii. Advice on policy matters related to mining and natural resources governance whether or not arising from any law referred to in paragraph (i) above; iv. Formulates and implements plans and systems for managing the responsible development of the minerals sector and to promote the rights of communities. 22 | P a g e Revised Fisheries Policy 2012 has a goal of ensuring an “ecologically sustainable and economically efficient fisheries in Sierra Leone”. Consistent with this goal, the Policy sets out a Vision and framework for the management and use of fisheries aimed at ensuring their biological sustainability, reducing poverty and generating wealth in manner that contributes to the economy of coastal and riverine communities. The Policy recognizes that this will only be achieved if stakeholders are given a stake in the management process. Five strategies are outlined to achieve this Vision as follows: i. Conservation and sustainable use through risk assessment and regulatory action; ii. Increasing stakeholders’ responsibilities for management and use; iii. Development of an efficient and effective extension service to facilitate stakeholder engagement in management; iv. Diversifying and increasing trade of fish products (building the business capacity of the fishing industry); v. Sustainable aquaculture development. 3.5 Sierra Leone Land Reform Over the years several there have been several attempts to reform the land tenure and land administration; in order to ensure an effective land administration system and an equitable distribution of land. The latter refers to the generally accepted definition that the Protectorate Ordinance in fact excludes the Creoles12 from the Western Area from owning any land in the Provinces, which is a point of much debate and contestation, and perceived by some Creole as discrimination. However, this vision is opposed by the rural populations and voiced as such by the paramount chiefs, since colonial times. The irony is that apart from the land-owning families, even non-Creoles would not have freehold in the provinces, although a landowning family can allow land use in perpetuity (See tenure Typology). In the Western Area, lack of land titling has led to the use of fences, signs and watchmen to protect land. There are concerns among civil society groups and NGOs about the lack of transparency and weak regulatory framework surrounding larger investor land deals and confusion about the availability of land for investment in rural communities. In 1999, Government instituted the Justice Laura Marcus-Jones Commission of Enquiry to look into the Leasing and Sale of State Lands in the Western Area. The commission report highlighted issues including the inadequacies of existing land laws, lack of institutionalised approach to land management and an absence of a land management and audit and control system based on a coherent policy. This problem continued, and in 2008 the Ministry of lands announced a moratorium on all land transaction in western areas due to problems with allocating lands, false title deed and multiple claims for the same land. This moratorium has been lifted in 2011 officially, but the issues are even worse now. Unfortunately, there are no new strategies to combat this, apart from the provisions in the NLP. In 2003, the Law Reform Commission had mandated a review of laws that presented as obstacles to investment in land, and in 2004, the mandated sub-committee of the Commission submitted a bill titled “Commercial Use of Land Act” to the Attorney General 12 Creole are people who speak Krio 23 | P a g e and the Minister for Justice. Unfortunately, this bill was never approved by Cabinet for submission to Parliament for ratification into Law. Other bills in relation to land include the Lands Commission Act, 2006, and the Customary Law Courts Act, 2006 (Law Reforms Commission). In 2005, Government –developed a Sierra Leone National Land Policy of 2005. The principles guiding this Land Policy include: (1) protecting the common national or communal property held in trust for the people; (2) preserving existing rights of private ownership; and (3) recognizing the private sector as the engine of growth and development, subject to national land-use guidelines and rights of landowners and their descendants. However, the 2005 proposed land policy was not implemented. According to MLCPE officials, the policy formulation process was not participatory; that it was more theoretical than empirical, and failing to address the controversial and complex land issues that exist. Nevertheless, the Policy document highlighted important problems that are believed to be hampering land administration and land tenure in Sierra Leone, such as:  Inadequate security of land tenure;  Weak land administration and management systems;  General indiscipline in the land market;  Indeterminate boundaries;  Illegal acquisition of State lands;  Difficulty to access land for development purposes;  Low level consultation;  Shortage of accessible land in the Western Area;  “Squatting” on State and private lands in the Western Area due to rapid urbanisation;  Insecure tenure forms and rights due to the absence of a system of registration of titles;  Lack of proper cadastral mapping and land information;  Unclear and diverging tenure forms under customary law; overlapping jurisdictions for statutory and customary law;  Weak land administration and management;  Inadequate capacity within the Ministry of Lands, Country Planning and the Environment to carry out its mandate and;  Inadequate protection against “land-grabbing”. A mew national land policy (NLP, 2015) is on its way to Cabinet, and eventually to Parliament. The draft policy document proposes major changes such as replacing the current system of deed registration with a land title registration system. This new system will apply nationally, and will include land held under customary tenure and cover all types of rights; and is proposing to end the distinction between native/non-native rights to land in the country. The new National Lands Policy makes provision for the establishment of a National Lands Commission. The Ministry of Lands Country Planning and the Environment (MLCPE) shall establish the National Land Policy and Reform Unit (NLPRU) to support the implementation of the NLP. NLPRU will be headed by a senior MLCPE staff. The National Land Commission shall: 24 | P a g e i. Hold title to and administer all State/Government lands in Sierra Leone and shall perform all those functions currently performed by the MLCPE under the States Lands Act 1960; ii. Compile an inventory and keep records of Public Lands which are vested in the State or Government and manage or superintend the management and administration of all such Public lands; iii. Be responsible for the introduction of a system of registration of title to land in accordance with the relevant legislation to be enacted; iv. Be responsible for the setting up a modern cadastral registration system and operation of electronic title registries at district, and where possible, at chiefdom levels; v. As part of the process of the introduction of a system of registration of title, assist in the setting up of Land Adjudication Tribunals as and when necessary, to undertake adjudication as a prelude to systematic title registration; vi. Levy and facilitate collection of, and manage all land tax revenues except rates levied by local authorities. 3.6 Land Tenure typology Land tenure in Sierra Leone consists of three main types (i) land originally bought “on behalf of and for the sole benefit of the free community of settlers” in the western area– which later became “freehold”; (ii) land under customary dispensation – sometimes also referred to as a communal system; and (iii) land owned by the state (“State Lands” or former crown lands), managed by MDAs of government and used for government use or for general public use (including protected areas for forestry and wildlife). The concept of traditional or communal tenure has received much attention, but apparently it tends to be used in a static way, with some referring to the notion of ‘customary’ tenures instead (Butler, 2009) A range of commonly used concepts of land tenure (such as” agreements”, of “ the sale of land”, ‘freehold’ tenures, family lands and “ownership” or “holding” of the land are used unclearly or synonymously. The concept and practice of the custodial role of (paramount) chiefs over land, or trusteeship is unclearly referred to, (Moyo & Foray, 2009). A closer examination of the evolving forms of land holdings in Sierra Leone suggest an even more complex range of holdings (Table 2). Some of these are clearly based in statutory law (freeholds, leaseholds), while others are provided for under customary laws (family lands, etc.). State lands are based in statutory laws, although these are in some cases contested (e.g. urban reservations). In between these forms are the now expanding and increasing controversial forms of tenure; the declaratory holdings. Their validity is questioned by perception that they represent the grabbing of state land. In the case of long term customary tenancies, though the interest of the tenant in the land could be described as a right of usufruct, yet the incidents of such tenancies are much wider in range, and the tenant often acquires more than a mere right of occupancy and user (Renner-Thomas, 2010). Much depends on the purpose for which the land is granted to endure in perpetuity. Such a right to occupy land in perpetuity has the semblance of ownership, and the customary tenants in these cases often regard themselves, and are regarded as “owners” of the land. 25 | P a g e “There are conflicting authorities on the question of whether, and if so how, the interest of the customary tenant under long-term or perpetual tenancy is transmissible on his death. According to the opinion expressed by their Lordships of the Privy Council, in the Nigeria Case of Oshidi v. Dakolo, a customary tenant has the right to transmit his holdings to his issue. Another view is that upon death of a tenant his heirs are supposed to obtain consent of the grantors to continue in occupation though, in practice, such consent is neither formally requested nor given ”. (Renner- Thomas, 2010). However, no matter how substantial the rights of the long-term occupancy may be, these cannot ripen into ownership, and so long as the grantor’s reversion has not been extinguished in favour of the tenant, it continues to be enforceable, no matter how long the tenancy might have been in existence, (Renner-Thomas, 2010). This means, the tenant’s view of himself as an owner is irrelevant, even if the grantor has also ceased for many years to keep in touch with the tenant, or that the landlord has in any way encouraged the tenant to regard the land as belonging to the tenant absolutely. It is important to note the existence of squatters in the tenure topology. Although squatter rights cannot strictly be a tenure type per se, these rights could be converted into leasehold or freehold depending on whether the land squatted on is colony land (freehold) or communal land. It is depends on whether the vested rights are limited in time or not. Table 2, provides a summary of the tenure landscape within the country, focusing on the forms of tenure, key tenure factors, the regions where such tenure occurs, and the legal provisions. 26 | P a g e Table 2: Sierra Leone Tenure Typology Key Tenure Factors Regions of Incidences Size Legal Forms of Tenure (Km2) Form of ownership or Form of Western Provinces Provinces Provision Source of land holding rights Registration Area (rural) (Urban)  Colonial acquisition  Absolute  Outright  Convergence Freehold (Fee Simple) ownership by Y N N Statutory Sale/Purchase  Survey citizens  State granted  Conditional period 537  State granted  Prescribed  Convergence Leasehold in the colony  Customary lands utilization  Site map Y Y Y Statutory  Private transfer  Fees/periodic  PC Approval review  Possession title  Deemed right  Registered state Declaratory Holdings  Freeholds from state (illegality in N Y Y Statutory plan lands question)  Colony State Land and  Statutory Public Some public Reserved 10,206  Customary  Mapped Y Statutory Administered Forests right lands lands  Customary lease  Conquest Customary Family Lands  Family lineage  Unregistered  Perpetual use rights N Y Y Customary and Paramount Chiefs succession  Site plan  Family allocation 60,877  ‘Sale’ from family lands  Perpetual use rights  Registered Sales Customary Customary Conditional  Family succession  Prescribed Land agreement N Y Y and Land Sales  Approved sale by a use Revision rights  Site map Statutory third party Note: Y = Yes; N = No 27 | P a g e 4.0 INSTITUTIONAL FRAMEWORK Land governance in Sierra Leone is the responsibility of several state and private agencies, departments, offices and officials. Table 3 illustrates how the various agencies relate to each other. Ministry of Lands, Country Planning and Environment (MLCPE) is the main institution responsible for taking leadership of all land matters in the country. It is responsible for land registration, and preparation of land use plans.  The Land Registration Project at MLCPE is in progress but has been constrained by the lack of sustainability of funding.  There are no laid down protocols of coordination/collaboration between the MLCPE and Paramount Chiefs on land matters.  The Surveys and Lands Division at MLCPE is not mandated to verify ownership of land; and is only verifying the accuracy of surveying computations submitted by Licensed Surveyors for private land and by Government Surveyors for State Lands.  MLCPE has no proper coordination/collaboration with the Ministry of Works, Housing and Infrastructure, since the renaming of the Ministry of Lands, Housing, Environment and Country Planning to Ministry of Lands, County Planning and the Environment, with the “Housing” functions sent over to the renamed Ministry of Works, Housing and Infrastructure. Ideally the Housing Department of the MWHI conducts a Housing Needs Assessment and liaise with MLCPE to provide land for such housing development, but this has not been happening. The Housing Department should also issue Building Permits based on approved Survey Plans and Planning Permits obtained from the MLCPE, but the Planning Permits are no longer been issued by MLCPE. Office of Administrator and Registrar General (OARG): only functions in the Western Area, situated in Freetown, the capital city. It has as its supervisory Ministry, the Office of the Attorney General and Ministry of Justice; and generates revenue for the government. The OARG is responsible for the registration and administration of every instrument required to be registered by law including land transactions, industrial property, business registration, marriages and administration of estates of the deceased, apart from that of “births and deaths”.  The main link between the MLCPE and OARG is that survey plans are prepared by the MLCPE and sent to OARG for registration. There has been an attempt to automate the link between OARG and MLCPE in the transfer of land documents through the implementation of the Land Registration Project at MLCPE and the Electronic Documentation of Land Records Project at OARG, both funded by the Investment Climate Facility for Africa. The OARG is responsible for registering land instruments (survey plans and conveyances), as established by the General Registration Act of 1960 (Cap 256). The first instrument registered in Sierra Leone was done on the 22nd January 1845. Between 201o and 2014, the OARG registered a total of twenty-eight thousand, two hundred and ninety three land instruments nationwide. These included: (i) leases by the State to private individuals and other legal entities, (ii) lands leased by tribal authorities in the Provinces and freehold conveyances for privately held land. Registration by the OARG does not provide the parties with security of tenure. It is also important to note that 28 | P a g e the OARG only maintains a deeds registration system and does not maintain a cadastre. Boundaries, location and rights are not recorded. Ministry of Agriculture, Forestry and Food Security (MAFFS) is the fundamental decision maker on national food security; and determines institutional administrative policy and procedures pertaining to food and nutrition security.  The Ministry is also in charge of developing a sustainable, diversified, agricultural sector, which ensures food self-sufficiency, increase exports and creates jobs opportunities as well as improving land and water management through supporting sustainable productive increases which can restore the country’s natural capital.  The Private Sector Desk of the Ministry of Agriculture is charged with the responsibility of linking investors to Paramount Chiefs and providing assistance during the process of land acquisition and the initial investment in agriculture. This Unit helps in facilitating and coordinating activities of potential investors in the agricultural sector. Ministry of Works Housing and Infrastructure (MWHI) has the mandate to design, coordinate and monitor the implementation of policies and programmes for the development of Housing and Road Sectors of the Economy. The main objectives of MWHI are: i. To develop appropriate policies and programmes for a safe, reliable and sustainable national road network for the enhancement of economic growth and development. ii. To provide public officers with appropriate social infrastructure for the conduct of government business. iii. To regulate the Housing Sector through the formulation of sound and effective policies. iv. To regulate the Institute of Professional Engineers. Ministry of mines & Mineral Resources (MMR) is responsible for the management of minerals in accordance with the Mines and Minerals Act 2009.13 Concessions for industrial mining (exploration and large-scale mining) is managed by the Mining Cadastre Office (MCO) in Freetown, while all artisanal mining licenses are managed by the MMR Regional Offices located in Bo, Kenema, Makeni and Kono14. MMR has since 2009 implemented the Mining Cadastre Administration System (MCAS), provided by the Revenue Development Foundation. Environmental Protection Agency enforces compliance with environmental protection laws, drafting regulation for mining sector. Proactive to a very large extent and brings to the fore issues leading to the mismanagement of natural resources. Sierra Leone Investment and Export Promotion Agency (SLIEPA) introduces opportunities and the means of doing large scale agribusiness investment in Sierra Leone. It is offering attractive conditions to investors for cultivating and processing sugar and oil palm, both for food and bio- energy. 13 Mines and Minerals Act 2009 14 Mineral Rights Admin Handbook 2009 29 | P a g e Human Rights Commission of Sierra Leone (HRCSL) is an independent Commission established in 2004 by an Act of Parliament. Their mandate is to protect and promote human rights in Sierra Leone. It has been instrumental in showing a detailed picture of large scale investments in land; and how it relates to human rights. HRCSL has also produced a monitoring tool useful for private investors and government. Law Reform Commission (LRC) is the sole mandated entity dealing with law reform in Sierra Leone. It was established through the Law Reform Commission Act, 1975. It reviews all laws in force in Sierra Leone to determine their reform or repeal and subsequently reform, develop, consolidate and codify such law. It reports on researched areas of the law and draft bills that are submitted to the office of the Attorney-General and Minister of Justice. Consequently, most of the laws are developed by the LRC before they reach Parliament. The Commission is presently working on the Lands Act in a bid to resolve problems associated land ownership in the provinces. Chiefdom Administration, which falls under the supervision of the Ministry of Local Government and Rural Development, is responsible for all the affairs of each chiefdom, including land related disputes or misunderstandings between subjects. Very active in land litigations at the chiefdom levels. National Council of Paramount Chiefs (NCPC) comprises all 149 Paramount Chiefs in Sierra Leone and was re-established in 2010, with representative structures at national, regional and district level. The NCPC is committed to developing the institution of chieftaincy to enhance its relevance and effectiveness in national governance, aligning regard for tradition and culture with good governance principles that modern Sierra Leone aspires to. Local Councils, supervised by Ministry of Local Government and Rural Development, work in cooperation with Chiefdom Councils and shall continue to perform the functions provided for in the Chiefdom Councils Act, in particular holding land in trust for the people of the Chiefdoms. However they have not been very active in this capacity. The Local Councils Act mandates that land administration in the customary laws system be devolved to the Local Councils, but this has not happened due to the lack of the required staff at the Local Councils. Table 3, presents a snapshot of the institutional framework on land governance in Sierra Leone. 30 | P a g e Table 3: Institutional Framework on Land Governance in Sierra Leone Responsibility related to land Overlaps with which Areas of Institutions administration Institution?) intervention Remarks Office of Administrator Registration and administration of every MLCPE/MAFFS/EPA/MFMR/ Land Disjointed work leads to lack and Registrar General land instruments (Survey plans and EPA/Chiefdom Administration ownership/administrati of coordination among the (OARG) conveyances) -western area only on institutions. Ministry of Lands, Leadership on all land matters; land OARG/MAFFS/EPA/MMMR/E Land The interest of each of these Country Planning and registration, and preparation of land use PA/MWHI ownership/administrati institutions are different and Environment plans. on some tend to act unilaterally Development Control without the involving the Demolition Powers other relevant authorities. Ministry of Works, Gives out housing permits; and responsible MLCPE Development Control Since the removal of Housing and for demarcation of land for road Demolition Powers ‘Housing’ from the Ministry Infrastructure (MWHI) constructions, through the Sierra Leone Lands, Housing, County Roads Authority Planning and The Environment to the Ministry of Works and Infrastructure, there has been confusion on who has the Development Control on land related matters. Law Reform Review laws/ reform, develop, consolidate OARG/MLCPE Legislation The Commission is still Commission (LRC) and codify such law, such as the Lands Act struggling to kick start full scale activities, with many land laws needing review. Ministry of Agriculture, The Private Sector Desk MAFFS is charged OARG/MLCPE/EPA/MMMR/ Forest Reserves, Large Farming and mining interest Forestry and Food with the responsibility of linking investors EPA/Chiefdom Admin/MWHI scale agricultural clash in some communities Security (MAFFS) to Paramount Chiefs and providing investments and in many cases the faming assistance during the process of land interest is subdued. acquisition and the initial investment in agriculture. Sierra Leone Introduces opportunities of doing large Affected Land Owners/Action Investment Monitoring CSOs are doing a good job, Investment Export scale agribusiness investment for Large Scale Land of LSLI agreements but mostly they are Promotion Agency Acquisition/Green Scenery. challenged by failure on the NAMATI/MAFFS government part to address concerns raised. Ministry of mines & Management of minerals in accordance OARG/MLCPE/EPA/MAFFS/E LSLI EPA monitoring of these Mineral Resources with the Mines and Minerals Act 2009’ PA/Chiefdom Admin/National Relocation sites are mostly (MMR) Mining cadaster Minerals Agency overshadowed by the efforts 31 | P a g e of the National Minerals Agency. Environmental Enforces compliance with environmental OARG/MLCPE/EPA/MAFFS/ Land Use Not always in the picture Protection Agency protection laws, drafting regulation for Chiefdom Admin/MMR,NMA Environmental when land is disposed of mining sector, ESIAs. Protection Human Rights Protect and promote human rights Could overlap with SLIEPA Protection of rights Have not been very Commission prominent, but has the potential to be more involved. Chiefdom All affairs of a particular chiefdom OARG/MLCPE/EPA/MAFFS/E Land Chiefdom authorities need Administration including land related disputes PA ownership/administrati more awareness on how on certain land use affect the environment. Local Councils Cooperating with local councils, Chiefdom OARG/MLCPE/SLRA Land Ownership and Inactivity in area of land and Councils shall continue to perform the Administration slow pace of devolution functions seriously affects input of local councils in land administration. The demolition rights are now being claimed by the local councils, which further confuses the issue, since MPCPE and MWHI/SLRA also carry out this responsibility. 32 | P a g e 5.0 RESULTS OF LAND GOVERNANCE INDICATOR ASSESSMENT This Chapter assesses the situation in Sierra Leone for nine thematic areas, based on background reports prepared by expert investigators that lay out first the context for each theme. This is followed by an assessment for each dimension of the land governance indicators. The results were discussed in panel meetings and resulted in an agreement on where the Country stands in a range from A to D. It also provides justifications for the scores and makes recommendations, were appropriate. 5.1 Panel 1: Land Rights Recognition 5.1.1 Recognition of continuum of rights PANEL 1: Land Rights Recognition LGI 1: Recognition of a continuum of rights LGI Dim Indicator A B C D # Individuals' rural land tenure rights are 1 1 1 legally recognized and protected in practice. 1 1 2 Customary tenure rights are legally recognized and protected in practice. Indigenous rights to land and forest are 1 1 3 legally recognized and protected in practice. 1 1 4 Urban land tenure rights are legally recognized and protected in practice. Individuals' rural land tenure rights are legally recognized and protected in practice These rights are protected under the customary system and they have remained virtually unchanged since colonial days. All rural lands, with the exception of reserved and protected forests, belong to families and this recognised in law. The status quo has not been altered. The Paramount Chiefs, as custodians of rural lands, have ensured non-interference in the ownership of lands in their domain. They are strongly opposed to State acquisition of land in the provinces, due to the cultural and economic significance of land in the rural areas. It is also in the best interests of the chiefs to maintain the existing tenure system. The legal framework governing land delivery in both systems is complex and affected by at least twenty different statutes and regulations. Most of them having conflicting provisions, which present implications for land use and management (see chapter 315 for more detail on the legal framework). The Government of Sierra Leone has not reformed the land law a priority until 15 Legislations relevant to Land Tenure in Sierra Leone include: Unoccupied Lands Act Cap. 117 (1960); Protectorate Land Act Cap. 122 (1960); Airfield and Defence Lands Act Cap. 121 (1960); Environmental Protection Agency Act (2008); Forestry Act 1988 cap. 189; Wildlife Conservation Act (1972); The National Protected Areas Authority Act 2012; Sierra Leone Roads Authority Act; Provincial Lands Act (Cap 122); Public Lands Act (Cap 116); The Mines and Minerals Act of 2009; The Town and Country Planning Act (Cap 81); The Freetown improvement Act (Cap 66); The Local Government Act No 1 of 2004 in s. 28 (d); The Tribal Authorities Act (No. 13) of 1964; The State Lands Act 1960, and The Survey Act (Cap 128). 33 | P a g e recently, despite the long standing wish to reform land tenure in the provinces as far back to the Protectorate Land Ordinance 1927. The Creoles view this as discriminating against them. However, any change in this Ordinance would be regarded the people in the provinces as an attempt to expropriate the land in the provinces16. The new National Land Policy proposes a unified national land tenure system that continues to recognize land held under customary tenure, but proposes ending the distinction between native/non-native. By legislation, the Western Area refers to the land granted by the British Crown to the Sierra Leone Company.17 The British introduced the concept of freehold and superimposed this on customary systems. These individual and collective rights are recognized on the basis of a freehold system based on common law and received English Law in force since 1880 State Land is administered by the State Lands Act of 1960 and is land ceded by the Colonial Government to the Government of Sierra Leone after Independence in 1961, Unoccupied Land, and land compulsorily acquired by the government. Land tenure recognition is regulated by Statute Law in the urban parts. The system is based on a number of Acts such as Cap 255 and Cap 256. Titles of ownership are done by the courts, and are guaranteed; and supported by the appropriate laws and registered in the property Register. In the Provinces (North, East and south) which are mostly rural, right recognition is based on customary laws that are recognized in statutory law (Protectorate Land Ordinance 1927; Concessions Ordinance of 1937, and Provinces Land Act Cap 122 of 1960). All rural lands, with the exception of reserved and protected forests, belong to families under customary law; and this is recognised. Paramount chiefs play key roles in land governance, as they hold the land in trust for those in the chiefdom. The different areas within chiefdom (apart from community land) are held by landowning families, who are able to trace their ancestry back to first arrivals in the area. It should be noted that chiefdoms were formally established as part of indirect rule in colonial times. Ill- 16 Any major discussion of land tenure in Sierra Leone usually evokes strong emotions from all strata of society. Already in May 1970, Prime Minister Stevens promised setting up a committee to examine the country’s land system and make recommendations, but was not implemented due, in part, to pressures from provincial chiefs who, since colonial days, view any attempt to change the tenure system with deep suspicion. It should be noted that most politicians come from the provinces and many have ties with land holding families. Review proponents argued that reform of customary systems is needed for attracting investments. Others argue that a change to lease term limits by making it open without a maximum term, is sufficient to attract investment. Krio representatives are calling for the repeal of the 1927 Protectorate land ordinance and to give an unequivocal right for all Sierra Leoneans to live and own land in any local without need for clearance by local authorities. 17 As defined in 31 Geo. III Cap LV 1791, s. 154 as so much land as shall include the whole tract or district so commonly called or known by the name of the Peninsula of Sierra Leone bounded to the north the river Sierra Leone, on the south by the river Caramanca, on the east by the river Bunce, and on the west the sea to the west. In 1787, following the arrival from Britain of former enslaved Africans (commonly called the ‘Black Poor’), agents of their benefactors in England cajoled the chiefs of the Sierra Leone peninsular to cede some piece of territory about 20 square miles “for the sole benefit of the free community of settlers, their heirs and successors.” The chiefs received £59 worth of trade goods in return. Subsequently, most of the lands in the peninsular region, in theory, became (British) Crown lands and when Sierra Leone gained independence in 1961, they became State lands. 34 | P a g e defined chiefdom and land boundaries have sometimes led to chiefdom land disputes. As indicated in Chapter 3, at the end of the civil conflict in 2002), the position of paramount chiefs was strengthened (Chieftaincy Act, 2009). In customary systems, it is possible to clearly identify ownership of land in describing the relationship between land and a person or a group of persons in whom that interest is vested. This is because, customary law itself is sophisticated enough to recognise and discern the varying types of interest in a particular piece of land. Allocation of land within extended families is usually done by the family leaders, with a variety of arrangements are possible. These include regarding permanence of allocation, crops (annual, perennial), and requirements to provide labour in return, specific for the ethnic group. Rights in the urbanized areas of the provinces can be recognized via leaseholds with customary chiefs, which are subsequently formalized (see next section). Regarding indigenous rights, Sierra Leone is a multi-ethnic country and the legislation as such does not protect indigenous peoples as referred to in international legislation, but acts dealing with the provinces has references to native/and non- native which implicitly protect ancestral rights. However, the Creole from the western area have always viewed the 1927 Protectorate Land Ordinance as an offence18, but which served as a protection for the protectorates otherwise called the natives. Essentially the offence of this ordinance it is argued, is to deny “non-Natives” in particular the Creole any rights in land anywhere in the Provinces beyond a leasehold of fifty years and renewable for a further twenty one years.”19 It should be noted, however, that since colonial times, protectorate chiefs vehemently opposed the land laws and other new pieces of legislation, arguing that they were “nothing short of the total dispossession of their country.” They also opposed legislation proposed in 1947 which would have given the chief commissioner of the protectorate the possibility to appropriate protectorate land for public works20. Recommendations 18The 1927 law was enacted at a time when the relationship between the British and the Creole had worsened, with the former accusing the Creole of having incited the protectorate chiefs during the House Tax War of 1898, even though many Krio traders were killed during the rebellion. British colonial policy was thereafter to keep the Creole out of the protectorate and in all major administrative positions in the country. Legally, the Creole were foreigners in the protectorate just as the hinterland people form the protectorate were aliens in the colony, could be expulsed (aliens expulsion ordinance) and were not represented in the colony legislative council. 19 The operative S.4 of the Ordinance says thus: “No non-native shall acquire a greater interest in land in the Protectorate than a tenancy for a term of fifty years; but nothing in this section shall prevent the insertion in any lease of a clause providing for the renewal of such lease, for a second or further terms not exceeding twenty-one Years.” 20 During the colonial period, the British made other attempts to appropriate land in the protectorate. In 1947, during the annual meeting of the Protectorate Assembly in Bo, the Chief Commissioner of the Protectorate, Hubert Childs, introduced a Bill in the Assembly which sought to give the colonial administration the power to appropriate protectorate lands for public works. Assembly members rejected the Bill in spite of the Chief Commissioner’s strong stance on the matter. A Paramount Chief argued that: If we agree to the Bill, the people will be pushed into the corner and will not have sufficient land for farming purposes. . . . If land is acquired in this way, the coming generation will only be strangers in their own land and I think they will blame their fathers for selling the land. In the past, something of this nature was brought before the people, but they refused to accept it. This Bill is, therefore, repeating what has been done in the past and has been rejected. When Government came to the Colony, it was just a small portion of land that was bought. But now most of the lands in the Colony have become Crown lands . . . . We want Government to continue to lease lands from the Chiefs and the people. 35 | P a g e  Any proposed land reform should build on customary systems and institutions, which have proven to provide tenure security to most and flexible in adaptation to new situations. Customary tenure institution in rural areas are family and lineage based, ensure recognitions of these rights within the customary settings and disputes are easily settled to build this within a streamlined structure.  Given that general courts can hear customary law cases, such a streamlining would make enforcement easier.  The functioning of customary systems can be sustained by supporting internal governance and internal societal dialogue, which could be informed by experiences in other areas with strong customary systems such as east Africa or Ghana 5.1.2 Respect for and enforcement of rights LGI 2: Respect for and enforcement of rights Dim LGI # INDICATOR A B C D Accessible opportunities for tenure 1 2 1 individualization exist. Individual land in rural areas is recorded and 1 2 2 mapped. Individual land in urban areas is recorded and 1 2 3 mapped. 1 2 4 The number of illegal land sales is low. 1 2 5 The number of illegal lease transactions is low. Women's property rights in lands as accrued by 1 2 6 relevant laws are recorded. Western area Freehold Land owned by individuals and other corporate entities can be freely disposed of by the owner. In the western area there is a difference between the more urban and the rural parts. In urban areas lands are already becoming allodial, with rights of individuals increasingly registered, particularly after sales and being inherited. Increasingly, also in the more rural parts of the western areas where land is hold by families, allodial freehold ownership is extending. Individualization of land rights is possible, if accepted by the family. People are able to not only have outright ownership but are also able to pass it down in inheritance. Women’s freehold property rights in the Western Area are recorded, as with all other rights. The need for boundary demarcation is paramount and is increasing in practice for people who have allodial freehold. Structure already exists, through conveyances, to have demarcated land surveyed and validated. In addition, land in the western area can be acquired by grant of State Land from the State. It should be noted that ineffective governmental control and policy over the years, have enabled 36 | P a g e many families to acquire vast tracts of State land in the Western Area as freehold. The government is also encouraging the leasing to foreign investors of state controlled land in the western area21. Selling and leasing land is permitted in the western area for freehold land. There are no restrictions reported on sales (like for example on giving consent or land use categories that cannot be sold) nor legal restrictions on land leases. In the Western Area, interest in owning a land is mainly for the purpose of building a house and there is a huge demand for land for building plots with high competition amongst buyers. Some people’s lands in the western area are mapped and recorded in the Office of the Administrator and Registrar-General (OARG), although large tracts of land owned by families are not properly recorded and mapped. Local government bodies such as local councils and the MLCPE have a rough inventory also of lands owned under the customary system. There is no stand-alone data on land parcel registered. However, since every conveyance has maps, the number of singed conveyances at the OARG is a reasonable approximation of lands registered in the Western Area. It is very important to also understand that the in attempt to address these anomalies, the Urban Planning Project established a total of thirteen survey control points within the greater Freetown area. These are not enough and more need to done to completely address the situation. There are too many illegal land sales in the Western Area. The land cases account for around 70% of all the cases in the Western Area courts. The vast majority of these are related to illegal sales. Women's property rights in lands as accrued by relevant laws are fully recorded, in the Western Area, just as men’s, given the provisions of the statutory law.. Provinces The customary land tenure system in Sierra Leone makes provision for security of tenure for individuals investing in land, such as tree crops. For although land may belong to corporate family groups, individual members of that lineage/family (and even outsiders) are free to utilise the land for longer periods on certain conditions. This is an example of the flexibility of customary tenure systems, which adapted in the first half of the 20th century to the opportunity to grow the then still exotic coffee and cacao for export, which expanded particularly in southern and eastern Sierra Leone. These economic changes necessitated adaptations to the customary tenure rules to permit long-term investments in the land. Individual family members were then allowed to plant and own tree crops on their family plots, and even “strangers” were given such rights on culturally agreed terms. Such land is not permanently alienated to the individual but his activities would be recognised and protected. For strangers, which includes non-family members, where the land required is for the cultivation of annual crops, usually no money is paid but at the end of each farming season the farmer must give some token produce of the farm to the family head; this is usually the equivalent of a bushel or two of rice and the purpose is to remind the farmer that he is a tenant of the family. To conclude, 21 According to Section 4, Land Development Act, 1962, the Government can lease State land to foreign investor for commercial and industrial use. However, no foreign investor/company can obtain or acquire Freehold on any land, State or private (Section 3, Land Development Act, 1962). Just as it is in the Provinces, where foreign investors can lease land, but cannot get freehold, as is the case for non-native Sierra Leoneans. 37 | P a g e individuals can under family or other arrangements, own vast parcels of land for the cultivation of permanent crops. The development of leaseholds, including formal registration is a practice that is gaining tract in the more urban areas of the Provinces. In the provinces, in some cases, the families grant leaseholds. In such situations, the procedure is that after the payment of the money to the land- owning family, a surveyor is employed to demarcate the land and prepare a site plan. This goes through the validation process and is signed by the grantor and the grantee, the Paramount Chief, the Survey and Lands Division in the Ministry of Lands and Housing, and the Town Council. In addition, a deed of conveyance is prepared by a solicitor and may sometimes be registered in the Deeds Registry, at OARG. Landowning families do also transact lands among themselves but these are not formally recorded, but the cost in time, money, and difficulty to formalize such transactions with the state (MLCPE) are beyond what many landowning families are willing to consider, even if benefits did accrue from such registration. As a result these transactions go unrecorded within the formal system. Quite often also leases are unwritten and can be so long that it is almost equal to outright ownership. Illegality of lease contracts is not reported as an issue, but the legitimacy may be disputed by families and lineages whose land was leased out by paramount chiefs. Information on these trends, as well as emerging land utilization pattern is scanty. What is becoming apparent though is that these transactions have been causing huge problems for the local people currently working the land and who lost these lands to these investors. These activities have in their wake brought problems and have restricted the access and use to such lands and in some cases, the rivers in these areas. In addition, such concessions have brought in their wake, especially the mining companies, huge environmental degradation. Cadastre records (maps) are rare and often unreliable in the provinces because it is based on different forms of unwritten customary rules in different parts of the regions, and subjected so much to the whims, caprices and captivations of family, community or chiefdom heads. Land holders in the provinces may also not always be in a position to clearly indicate the boundaries. Regarding surveying and documentation of rights, there is, generally, no surveying and documentation of farmlands and forest under community tenure. However, it is also worth noting that large scale agriculture land investment are been mapped and rights documented. In addition, though on a very small scale, individuals in the communities are surveying and documenting their rights. This mostly happens in families with educated relatives who want to undertake some agricultural developments. Discussions with staff of MLCPE confirm that most of the cadastre maps produced for both the Provinces and Western Area are unreliable. Contributing factor to this is the fact that the survey control points that are used as reference for survey measurement are inadequate. Measurement, most times, are based on false references. Compounding the problem is that the surveyors are inadequately trained. These have resulted to the generation of incorrect property coordinates and survey cadastre maps. 38 | P a g e The number of illegal land sales is on the increase in the provinces. Women’s property rights in lands as accrued by relevant laws are recorded. Formal legislations on inheritance, particularly from parents and from spouses, are not a common place in the customary setting of Sierra Leone In statutory law, women can decide themselves on the transfer of property rights across generations, given that both women and men have equal rights to matrimonial property in the case of divorce (including for situation of polygamous marriage or marriages that are not formally registered). While women represent an extremely important part of the farming population and make vital contributions to food security, they have no other rights to land other than user rights through male relatives. Because they are not acknowledged as part of the land owners, women are not present at consultations with investors; and when they are present, they have no voice. As a result, women are not entitled to a share of land rental fees on their own. The position of women in customary law varies in extent from region to region, with the position of women being better in the south and east of the country. In the south and east, women can become paramount chiefs of which there are 13 amongst the 149 PC in the country (See Annex 1). Men who had married into land-owning families could be given land to cultivate tree crops, if they wished. This was because the in-law was now regarded as a member of the land-owning family through marriage. These crops acted as a kind of social and economic security for the wife. In the case of a divorce, the woman automatically inherited the tree crops planted on their family land. In the north, however, patriarchal systems dominate from family heads through village elders culminating in the Paramount Chief. Here, the patriarchal system vests control of family lands in men, and it is only in rare cases that women rights to land are recognized. For example, when the husband dies and there is no son, or an elderly male in the family. Recommendations  Improve the reliability of mapping in both western and Provinces (reference points, new technologies, training,  Expand accessibility of possibilities for recording of customary rights to improve tenure security in line with customary practice  Strengthen women’s rights to land in customary systems and in decis ion making over land use, and promote sharing of good practice in customary systems  Explore options to improve gender balance in the assignment of state lands in the western area ( joint titling; preference for female headed households)  Best practice approach should be adopted and as devolution takes hold, using the offices of local government to undertake proper mapping of lands within local communities reflecting ownership-say within families through Section and Chiefdom levels. Such demarcations 39 | P a g e should be captured in both the soft and hard formats; and records easily assessable to everyone, for posterity. Such recording and mapping land in the rural areas will greatly ease land conflicts in these areas and make for better utilization of these lands, but may be difficult to realize – unless the focus would be on mapping and registering the boundaries of the chiefdoms, land of lineages and families first.  The state could require that all land transactions must be recorded and registered, which would be a gradual way towards formalization of land while respecting customary systems. The new National Lands Policy aspires in that direction but its prescription for registering land on a first come, first served basis risks disposing some genuine land owners, in case that their land be registered by somebody else mastering the system which is a real risk in a situation where land grab is a serious problem, and corruption occurs. For situations where the permanent alienation of land via sales is not the preferred option at the customary/traditional level, the way forward would seem to lie in beefing up on land lease management.  Ensure that government follows the spirit of the law on land acquisition in the Provinces where proper consultations take place with rightful owners, ensuring that such land owners are adequately equipped to make free and fair decisions based on proper information on the need and consequences in our opinion would bring some sanity and legality to occupation and use. Land leases should be negotiated directly with chiefs and landowners, and every signatory to these negotiations should have copies of the agreement. All such negotiations should not be rushed; and the terms of the leases or even the land area covered should be clearly understood by every stakeholder.  Explore lessons learned from other countries with recognized customary law like in Ghana where such rights are vested in Stools or skins, and are setting up customary land administration systems, who work in co-ordination with the Ghanaian Land Commission. 5.2 Panel 2: Rights to Forest and Common Lands & Rural Land Use Regulations 5.2.1 Rights to forest and common lands PANEL 2: Rights to Forest and Common Lands & Rural Land Use Regulations LGI 1: Rights to Forest and Common Lands Dim LGI # Indicator A B C D Forests are clearly identified in law and 2 1 1 responsibility for use is clearly assigned. 1 Common lands are clearly identified in law and 2 2 responsibility for use is clearly assigned 1 Rural group rights are formally recognized and 2 3 can be enforced. Users' rights to key natural resources on land 2 1 4 (incl. fisheries) are legally recognized and protected in practice. Multiple rights over common land and natural 2 1 5 resources on these lands can legally coexist. 40 | P a g e Multiple rights over the same plot of land and 2 1 6 its resources (e.g. trees) can legally coexist. Multiple rights over land and mining/other sub- 2 1 7 soil resources located on the same plot can legally coexist. Accessible opportunities exist for mapping and 2 1 8 recording of group rights. 2 1 9 Boundary demarcation of communal land. We start here by stating that this Assessment assumes that Common is synonymous with Public. Most forests and woodlands in Sierra Leone are located in the provinces and held under customary law (85% of all forests), which is recognized as such by the Forest Act, 1988. The Act empowers MAFFS to declare any area to be a protected area for the purpose of conservation of soil, water, flora, and fauna and where this happens in the Provinces, by law it is a leasehold of no more than 99 years with an option to renew for another 99 years. In addition, the Act allows communities to apply for the establishment of community forests and define and determine the purpose for which the land will be used and who will use it, but this has not been applied yet in Sierra Leone. It can be concluded that forest are clearly identified in law. However, the current extent of state-owned forestland (mostly protected areas) is unknown. National parks have been identified, mapped and gazetted. The question is whether National Parks are controlled or administered by the State or the chieftainships, as the latter tend to act as custodians who will give permission to collect medicinal herbs or to hunt. Management of most forests are thus under Community management regimes and is the purview of customary rules and regulations. For forest that has been declared a protected area is State land, although usufruct rights may still be recognized. The Forestry Division of the Ministry of Agriculture, Forestry and Food Security (MAFFS) is responsible for forest management and biodiversity conservation, but its capacity to manage the forests is hampered by an outdated legal framework despite the adoption of a new forest policy in 2011, limited institutional capacity, and lack of funding. Responsibilities for forest use are clearly assigned with customary institutions playing a central role, also in protected areas. Implementation capacity of MAFSS is limited and of traditional authorities not analysed. There is considerable overlap in forest management and other environmental management responsibilities between the Forestry Division of the Ministry of Agriculture, Forestry and Food Security (MAFFS) and other ministries, such as the Ministry of Lands and Country Planning, Ministry of Works and Technical Maintenance, and Ministry of Mineral Resources. This makes it extremely difficult to clearly identify government forest lands and who determine their uses. In the customary traditions, the term communal may refer, firstly, to a right of commons like for areas used for grazing, fishing, hunting or collection of firewood and building materials. It is not the case with arable land, where the consent of some authority to initiate cultivation at a particular location must first be obtained. Secondly, communal land may be used to refer to significant group control over land that is apportioned for the relatively exclusive use of individuals or families of 41 | P a g e the group (extended family, a lineage, a clan, or a village). “Communal” is also defined by common descent, common residence, or some combination of the two principles. The essence of common land is that it belongs to a whole community and members of that community have right of access to it. Community land tends to be held by the chiefdom and is not claimed by land owning families. Rural societies recognize, protect and acknowledge legal rights to property and protect the commons, even without a formal demarcation of communal lands. There are customary boundary demarcations of communal lands in Sierra Leone. All national parks, sacred groves and other communal interests are well demarcated but using boundary markers acknowledged in customary systems, like rivers but also trees, which could cease to exist. Where boundary lines between chiefdoms or communities are not well defined, land disputes may erupt between neighbouring communities. All over Sierra Leone, users’ rights to key natural resources on land are legally recognized , although they may have to pay taxes, such as local taxes for living within the area, or levies for fishing in the waters. In the provinces, permission has to be granted first by the chiefs. Individuals along the coast line thus have the right the fish in the sea, just as everyone is allowed to fish in all the rivers, when the chief gives the permission to do so. In rural communities, no one is denied the right to cut trees for building homes and barns, from any forest, irrespective of who owns such land. Hunting is encouraged in all forests and the youth can hunt bush meat in any forest on any land, especially as the land owner has no crops on such lands. The legal protection of customary tenure systems and recognition of customary institutions implies that where there are no competitive claims on the land (for example leasing out land to companies for plantations or mining) multiple rights are recognized and protected in practice. For example, on family lands everybody is allowed to fish in the waters within that parcel, cut sticks to build a house or fetch water for household chores. It is not uncommon for some to use the same land for grazing especially when it is in fallow while others may still use it to gather fuel wood, hunt for bush meat etc. Through the same land could be the road to the local river where members of the community would walk to go fishing, usually the women who would also use the same natural resource for laundry and even drinking water. In those circumstances, disputes are bound to occasionally arise and where this involves different families on either side, it can fester for long periods. One family may claim exclusive rights to produce of trees, tracing origins to their own clan. But as already noted concessions have in their wake restricted the access and use to forest lands and in some cases, the rivers in these areas. While full information on these lands is hard to come by, there is a case to argue that even where legislation applies, the government has not been able to ensure its proper application Multiple rights over land and mining/other sub-soil resources located on the same plot can legally coexist. This is why in the same plot of land there could exist surface rights and mineral rights. Legal co-existence of land is common place in Sierra Leone, even although multiple rights are not acknowledged in the case of mining. Miners must obtain also the written permission of landowners to engage in mining operations impacting residences, farming, cultural sites, and other sensitive and economic land uses. The Act insists for instance that those wishing to mine in a particular area 42 | P a g e must reach agreement with the land owners and part of the agreement should include compensation for any economic loss. Chiefs and communities would have to rely on the agreements, which should provide on how to deal with violations. In the areas of the south and east of the country, the Act only permits blocks of land of no more than half-hectare per miner, but this restriction is often breached. Although not legally recognised, it should be noted that sophisticated customary systems exist to regulate artisanal mineral rights, particularly in the south and east of the country. While formal legislation controls commercial mining at the national level, the widespread and expanding artisanal mining is “de facto” regulated via customary law. Chiefs are specify areas for mining and allocated to individuals the right to carry out a mining activity. Accessible opportunities do not exist for mapping and recording of group rights. As indicated in the previous section, it has been decades since the last land mapping was done in Sierra Leone. The current new National Land Policy touches upon registration of titles for customary land. While this may at first sight appear to be a long awaited improvement, the plan now proposed will be on a first come, first registered basis. This may actually disadvantage the poor and illiterate who may have good title rights, but may not know how to register it on time or lack the resources. Recommendation  The legality of multiple rights over the same plot of land and its resources in rural settings does not imply that in the customary tenure system such rights are recognised and allocated either within the family or community. Problems usually arise out of the ad hoc nature of the allocation of rights and lack of recording. Because the law itself in Sierra Leone has always deferred to the preservation of customary tenure, a way forward could be for steps to be taken to encourage the recording of these rights and for which periods and to whom. That way, all interested parties would know their rights and these could be checked as necessary in times of disputes for example.  Enact laws that will provide for affordable and clearly defined procedures for mapping of rights, with less room for discretion in their application. Government should also enact a law that will provide for all communal areas under customary law to have boundaries demarcated and surveyed, and associated claims recorded.  Make use of the reinforced position of paramount chiefs to promote mapping and recording of all Common lands, in all chiefdoms. Paramount chiefs are well respected and this could help encourage forest protection and management, with support of a beefed up land management unit at the center level that would interact with paramount chiefs primarily on problems arising from identifying and managing common lands  Improve forest management by mapping all forest lands, including environmental characteristics, identification of community forests and recording of management system in place and its use and sustainability and agree on improved forest management and land use with these communities, where needed, while building on existing customary structures to monitor and report such agreed land use, complemented with satellite imagery. 43 | P a g e  Clarify authority over national parks as well as the conditions for the promotion of investments in tourism (decision making; local user rights, public – private partnership, local benefit sharing). 5.2.2 Effectiveness and equity of rural land use regulations Dim Indicator A B C D LGI # Restrictions regarding rural land use are 2 2 1 justified and enforced. Restrictions on rural land transferability 2 2 2 effectively serve public policy objectives. Rural land use plans are elaborated/changed via 2 2 3 public process and resulting burdens are shared. Rural lands, the use of which is changed, are 2 2 4 swiftly transferred to the destined use. Rezoning of rural land use follows a public 2 2 5 process that safeguards existing rights. For protected rural land use (forest, pastures, 2 2 6 wetlands, national parks, etc.) plans correspond to actual use. Specific lands in the rural are restricted in their use by communal conventions and sanctions. Such land restrictions include: burial sacred grounds, open prayer grounds, and secret society grounds (bush). Land use restrictions are also sometimes time related. Here we refer to by laws imposed by rural communal agreement and conventional practices. Examples here include when community members are forbidden to engage in oil palm harvest during certain times of the year to priority in time to rice, cassava and other staple crops farming. Public policy objectives are served by restrictions on rural land transferability, given that if rural lands are freely transferable this could to landlessness of rural dwellers, who constitute over 70% of the national population. Such a phenomenon could lead to population instability, as well putting inordinate pressure on urban services. The justification for this restriction in found in Cap 122 of the Laws of Sierra Leone, which prohibits the transfer for alienation of rural without the intervention of Government through the tribal authorities. Changes in such land use plans are made through the consent of the concerned public. Consequently the burden is shared by everybody. Such transfers are swiftly made to its destined used, especially when it is a community decision. However, if the change is initiated by the Government, it may not be always swift or even happen. In situations where there is rezoning, it is not done by just a handful of powerful people. The community is fully involved as per the conventions. 44 | P a g e Plans correspond to actual use of protected rural land use. However, due to poor enforcement, such protections are sometimes violated. De facto, on the ground, customary institutions are deciding on how land and resources are used in the land under their control, as was discussed in the previous section, multiple land use is regulated, primarily to prevent disputes, but there is no information on the importance of sustainability consideration in customary decision making processes. The only restrictions on land are that. Recommendations:  A well-developed vision on rural land use and restrictions should be available  The new land policy, 2015, and the acts to follow on from the forestry and conservation and wildlife policies respectively should include measures for the enforcement of regulations intended for best public use of lands by both smallholders and concessions.  The new National Land Policy, 2015 should include the need for any changes in rural land use plans to be done through public process, where government is the one that initiates such changes.  The current fragmentation of environmental and natural resource management in Sierra Leone, creating a unique opportunity for joint management by communities. More specifically, since communities are jointly reliant on resources such as water and forests, they provide an opportunity for communities to come together and cooperate on issues of planning, allocation and development. Joint management also provides opportunities to inform government and others about regional or area-specific situations. These, coupled with a clear mandate of responsibilities and penalties for not adhering to the defined roles, would reduce vertical administrative overlaps. 5.3 Panel 3: Urban Land Use, Planning and Development The focus of this section is mainly on urban development in the western areas. Institutional responsibilities for urban land use planning At present, the Ministry of Lands, Country Planning and the Environment (MLCPE) is the authority responsible for town and country planning. The day-to-day land use planning matters rest with the Department of Country Planning, with powers to prepare and implement legally binding land use plans. In 2000, the responsibility for Building Control was maintained in the MLCPE. In 2002, the Housing division was transferred to the Ministry of Works which became known as the Ministry of Works, Housing and Technical Maintenance, while all planning matters including development control remained at the MLCPE. In 2008, the approval of building plans and issuance of building permits was assigned to the Ministry of Works, Housing and Infrastructure (MWHI), and responsibility for enforcement of development control and building regulations. The matters that remained with the Planning division of the MLCPE were those of ‘enforcement of planning control 45 | P a g e and building control including the demolition of unauthorized structures. In 2011, enforcement of development control and building regulations was also assigned to the MWHI. However, over the past years, the Ministry has given priority to land survey matters and the administration of State land to the detriment of land use planning and the Planning Division is under resourced. The LGA started a process of devolving the planning in urban and rural areas and development control in their respective areas to the local government institutions. The LGA states expressly that local councils will be responsible for the development, improvement and management of human settlements and the environment in the locality. The LGA also clearly specifies functions of the MLCPE that are to be devolved to local councils. These are the preparation of land use plans (strategic and detailed plans); and the issuance of building permits. In 2008, the function of the issuance of building permits was taken from the MLCPE and transferred to the MWHI presumably because the local councils have not been sufficiently prepared for the take-over of this function completely. As already indicated earlier, the decentralization process is progressing rather slowly affecting the ability of local governments to contribute to housing policies. The Freetown Development Project (FDP), which is an urban planning project funded by the 10th European Development Fund (EDF) and is implemented since February 2011 in collaboration with MLCPE and the Freetown City Council (FCC). The specific objectives of the Freetown Development Project are : (i) Setup an effective and integrated web-based GIS management system for spatial planning; (ii) Develop a web-based spatial database system for Knowledge Mapping Analysis; (iii) Develop a National Spatial Development Plan, Regional Structure Plan for the Western Area, and a Freetown Structure Plan; (iv) Enhance the technical and institutional capacity of the Ministry and FCC through training and logistic support; and (v) Review of the planning laws and planning systems. This project will eventually provide the legal and institutional framework as well as enhance the technical and professional capacity of the Ministry and the Local Council (FCC) for effective urban planning and management. The National Development Framework and the Structure Plans at the regional and local levels will serve as effective planning instruments in guiding development projects and programmes in all sectors. One of the serious challenges facing the MLCPE and Local Councils is the lack of requisite number of trained and qualified professionals in Land Use Planning and GIS. 5.3.1 Restrictions on rights: land rights are not conditional on adherence to unrealistic standards LGI 1: Restrictions on Rights Dim LGI # INDICATOR Restrictions on urban land ownership/transfer 3 1 1 effectively serve public policy objectives. Restrictions on urban land use (disaster risk) 3 1 2 effectively serve public policy objectives. This indicator assesses the existence and justifications of restrictions on land rights in urban areas, such as on ownership, the way land is used, minimum-lot size, transferability etc.), the way they are enforced and implications. 46 | P a g e Sierra Leone has a series of legislation that guide and restrict urban land use, which effectively serve public policy objectives, but which is not applied. Before any public control over the use and development of land was introduced, landowners were free to use their land in any way they wished provided they acted within the boundaries of their property and did not commit any nuisance or trespass against their neighbour(s). The first introduction of public control on land use was the enactment of the 1900 Freetown Improvement Ordinance for the City of Freetown, followed by Public Health Rules of 1927 (supplement to the Laws of the Colony and Protectorate of Sierra Leone (1925). These two legislations imposed on the authorities the duty of enforcing building by-laws and sanitary codes in order to remedy the worst effect of insanitary living conditions. The Department of Public Works was the authority responsible for planning and building control in areas declared as ‘Town Planning Areas’, while the Department of Health and Sanitation was responsible for building control in other areas which fell outside the application of the Ordinance. An attempt to deal with more general land use problems led to the enactment of the Town and Country Planning Ordinance 1946. This law was applicable only to the Colony but later extended to the whole of Sierra Leone. By introducing the Town and Country Planning Ordinance the use of land was made a public concern, while the ownership and right to sell and buy land remained a private issue. The individual or private developer no longer had the right or freedom to use their land in the manner of their choice without obtaining prior planning permission from the authorities if the land in question fell within a ‘planning area’ in order to improve and ensure good living conditions and the health of the inhabitants as the rapidly increasing population created congestion and overcrowded living conditions in urban areas. The law was also intended to improve and ensure the long-term interests of community development. The Town and Country Planning Act (TCPA), Cap 81 of the laws of Sierra Leone 1960 (TCPA) as amended is now the principal legislation that provides for town and country planning (land use planning) in Sierra Leone. However, its provisions have rarely been used in recent times, its usage being mainly limited to the declaration of ‘Planning Areas’ and the appointment of ‘Planning Committees’. The Freetown Improvement Act (FIA) as amended and its Rules, Cap 66 of the laws of Sierra Leone 1960 (FIA) form the basic ‘development control’ tool for land use and building construction in Freetown. They provide basic standards that are varied and extensive as regards the use of land, buildings and building materials. They have been applied with some degree of success but have also provided such high standards that have not been able to be met by a large portion of the population. Successful implementation of the FIA provisions and Rules is visible in the older part of Freetown in the area between the junction of Ross Road extending west wards to the Congo Cross roundabout (which includes Cline Town, Fourah Bay Road, Central Freetown). However, there are functional issues which, though may not have been envisaged by the FIA, presently need much attention. These issues include inadequate space for parking, transportation, traffic, inadequate markets and recreational areas. The Freetown Improvement (Extension) Act Cap 77 of the laws of Sierra Leone as amended extend the provisions of the FIA to other areas outside the city of Freetown within the first, second and third urban areas. There are also the ‘Greater Freetown’ Zoning rules of 1969 which were 47 | P a g e policy guidelines used by the Ministry of Housing and Country Planning to assist in planning and building control. The FIA and the TCPA are two separate though related legislations that both deal with the issue of development control but which are meant to serve different purposes.  The FIA came into operation as a result of the creation of a detailed plan made specifically for Freetown taking into account factors such as the topography of the place, soil conditions etc. The FIA provides for the issue of building permits based on the provision of guidelines set out in the Act which relate to a detailed plan.  The TCPA provided the basic framework for plans, which had not yet come into existence and where land use had not yet been determined. The TCPA provides for the issue of planning permission not just the construction, alteration, repair to buildings but also for the development of land. In actuality, planning permission has no place if a ‘planning area’ has not been declared. The TCPA provides for the preparation of planning schemes, which in themselves are limited to preparing plans of the areas that are declared as planning areas, and do not provide the visions for the future development context and the functional inter- relationship between the planning area and the urban areas around. Since the introduction of the TCPA no comprehensive development plan has been developed and most plans have remained unimplemented and only few provisions of some plans were carried out particularly in Freetown. It should be noted that planning permission granted to construct, alter or repair a building under Section 7 of the TCPA is different from that of a building permit issued under the Section 16 of the FIA which permits a person to build only according to the plan (attached to application for a permit) which must be in accordance with the detailed planning scheme that has already been laid out. If there is no planning area under the law, then there can be no question of granting planning permission as a means of development control for the use of land. Enforcement provisions in both the TCPA and FIA are weak and inadequate. In Part V of the TCPA (Execution of schemes) no procedure is set for determining planning applications. The methods for the carrying out of enforcement functions by the planning authorities are not clearly defined in the TCPA for effective implementation. These methods include enforcement notices, stop notices, revocation of use certificates, etc. Neither are the procedures for enforcement action fully laid out. The TCPA contains penalties for non-compliance of its provisions. However, they have rarely been used as a means of ensuring compliance. This is because they can only apply in areas which are actively planning areas. Also, planning schemes have never been approved of under the TCPA. The Environment Division of MLPCE is to ensure sustainable land development in the country, serving as the agent to advice against misuse / improper utilization of land resources, such as expansion of land degradation and also disaster prevention. The Environment Division thereof has a statutory mandate to inspect all lands and to advice the Country Planning Division for the issuance of a Planning Permit before any development activities. The inspection ascertains the environmental vulnerability of the land location in terms of, for examples, its slope (steepness) to establish that it is not potentially dangerous with regards to landslides and rock falls, and distance from the coastline to ensure the land is not within the high water mark. If the proposed development 48 | P a g e is for industrial, agricultural, factory, estate, road and / or bridge development, then the Division recommends an EIA, and the EIA procedures should be followed in accordance with the EPA Act (2008) and as amended in the EPA Act (2010). The Planning Permit, although no longer enforced, can be the main issue linking the Environment Division to the other two technical Divisions in the Ministry on matters relating to land administration. Recommendations:  Reviewed the Town and Country Planning Act, Cap 81 of Laws of Sierra Leone 1960 (as amended in 2001), the Freetown Improvement Act and Rules (Cap 66 of 1960) and other relevant planning laws. The following improvement are needed in the TCPA act: o Permitted development: The TCPA act provided for only one type of permitted development i.e. the expressed application for planning permission. The permission procedures must be revised and include the complete permission process. o Development control: The Town and Country Planning Act should set out procedures to guide the planning authority in determining which development should be granted or refused planning permission. Planning permission is currently not being enforced by the Ministry. o Enforcement procedures in both Acts must need to be reviewed and updated to take into consideration various factors of accountability and the need to redress appeals against adverse planning decisions. Provision should also be made to allow coordination with the State enforcement agency to facilitate enforcement measures and compliance with the provisions of the Acts. Provision for the establishment of a special body to deal solely with enforcement measures (e.g. an enforcement unit) is ideal; other matters to be provided for include enforcement registers; appeals against enforcement notice decisions.  The Planning Authority in the past has shied away from applying the provisions of the TCPA as the main land use planning law and has concentrated on the FIA. Therefore, there should be mandatory provision that the TCPA must be used by the Planning authority as the legislation to be applied for all land use planning.  The Ministry is proposing series of amendments for a new Planning Law, which will address the issues of land use planning and urban development in the country. It will ensure the effective monitoring of development controls to effect compliance of planning regulations and standards. The proposed amendments are currently under legal review by the Law Reform Commission.  The mandates of the various MDAs responsible for land use planning and development control should be reviewed and harmonized. There are conflicting and overlapping mandates amongst the MDAs responsible for urban land use planning and urban development, and these MDAs include the MLCPE, MWHI, MAFFS, Office of National Security (ONS), EPA-SL, MMNR, MTCA, etc. This problem compounded by the lack of effective coordination and collaboration amongst these MDAs.  e-Governance should be introduced to enhance effective coordination and collaboration amongst government ministries, departments and agencies. 49 | P a g e 5.3.2 Transparency of land use restrictions: changes in land use and management regulations are made in a transparent fashion and provide significant benefits for society in general rather than just for specific groups. LGI 2: Transparency of Land Use Restrictions changes in land use and management regulations are made in a transparent fashion and provide significant benefits for society in general rather than just for specific groups. Dim LGI # INDICATOR Process of urban expansion/infrastructure 3 2 1 development process is transparent and respects existing rights. Changes in urban land use plans are based on a clear 3 2 2 public process and input by all stakeholders. Approved requests for change in urban land use are 3 2 3 swiftly followed by development on these parcels of land. The Town and Country Planning Act makes provisions for the development of a “Planning Scheme” (Section 10(2)) for an area declared a “Planning Area” (Section 8(1) (a)) for planned urban expansion and infrastructure development. To make, carry out or enforce a planning scheme, the Minister would notify in writing, the owners of land within the planning area to which the scheme related; requiring them within thirty days to state in writing their interests, rights in the land, buildings therein and also to state in writing the names and addresses of all those who they knew had an interest and rights in the land and buildings in the area. The Act stipulates also that before a planning scheme is framed or adopted, the planning scheme had to be deposited in the place decided upon by the Ministry, and notice of such a place published in the Gazette and any of the local newspapers. Public notices were also to be posted elsewhere in the area. The purpose of this was to allow representations to be made by the public regarding the planning scheme. Two months were given in which such representations could be made and the Ministry was obliged to submit them with the planning scheme to the Minister for consideration (Section 16(3)). In 1999, the whole of Sierra Leone was declared a ‘planning area’. No Schemes have been approved since then; and all orders declaring planning areas within Sierra Leone have long lapsed. Today, Land use development is taking place in urban areas almost without any control. Building permits are being given based on decisions and policies made in isolation and are not based on development plans or planning schemes. Though, the new Section 6 of 2001 Town and Country Amendment Act 2001 provides for public participation, it is insufficient to guarantee equity within the land use planning system. As a result, there are hardly any planning schemes against which change in land use or development is approved. Where there are schemes, enforcement has been weak or lacking. In practice, effective land use planning at national, regional and local levels does not really exist. Local land use planning is carried out in an individual or ad-hoc basis. The authorities often rely on non-statutory plans with little coordination and visions for functional and rational urban development. 50 | P a g e The enforcement action provisions for ‘Development control’ in both the TCPA and the FIA are inadequate. Planning authorities have invariably found it difficult to carry out enforcement actions because of the lack of clarity within the provisions of both Acts. The procedures for enforcement action are also not fully laid out. The MLCPE has proposed the following amendments to the TCPA in its assessment report of the relevant planning laws in Sierra Leone to ensure active public or community participation (MLCPE, 2014): i. Active and substantial public and stakeholder participation in the plan preparation process by established consultative procedures for community involvement in the definitions of general and neighbourhood development goals, discussion of eventual alternative plan solutions as well as participation in the final consultation concerning the final draft plan before a final approval by the Planning Authority. ii. A special planning tribunal or body should be set up at national level to evaluate the fulfillment of the legal planning procedures in case complaints arise from concerned community members. Procedures for obligatory stakeholder and/or community consultation should be established in the case of: i. Preparation and approval of the National Spatial Development Plans involving other ministries, local governments and private sector organisations; ii. Preparation of Regional Structure plans involving ministries and the concerned City/Town and District councils; iii. Preparation of City/Town and District Strategic Structure Plans involving the community members in general, the private sector organisations and local NGOs; iv. Preparation of City/Town and District Local Plans (Sub Structure Plans) involving the community members in the plan area, the private sector and local NGOs; v. Preparation of City/Town and District Area Action Plans involving the community members in the planning area including the land and business owners; vi. The Community participation procedures should be legally binding indicating ways of invitation to the public consultation activity (announcements in local press and radio/TV of consulting procedures and the content of the proposed plans), the period and dates available for the consultation activity (minimum eight weeks for each consultation process) and the procedures for the assessment and consideration of the public opinion and contributions by the planning authorities. vii. The same established public participation procedures should also be obligatory when making addendums to the plans or revising them; 51 | P a g e viii. Land owners and citizens living immediately adjacent to the planning site should be notified of the contents of the planning proposal; ix. All proposals for preparation of land use plans be made easily available for viewing and reading in public space to make community members able to express their views/opinions; Public access to information concerning development and building applications: i. Land owners and citizens living immediately adjacent to applications for development must be notified of the contents of the application; ii. Planning authorities to be compelled to give reasons publicly in writings on enforcement action which is to be taken against unauthorized development; iii. A register of development and building permit applications should be kept at all times and made accessible to the public. Recommendations:  Preparation of legally binding plans (to be revised periodically) should be made mandatory under the provisions of the TCPA.  Planning and building permissions must by law only be given in accordance with relevant development and building regulations and the land use development policies and land use plans approved by the planning authority.  The information on planned urban expansion should be available, easily accessible and at affordable the cost by the general public. It should be the responsibility of the Government (central and local) to make the information available, accessible and affordable.  Active public or community participation should be provided for not only prior to declaration of planning areas for planning purposes, but at other stages which include before and after the preparation of a draft schemes or plans. These stages may include pre- deposit consultation, deposit of proposals and approvals of the planning schemes. The planning process should also ensure transparency and accountability on the part of those preparing the planning schemes.  The TCPA and FIA should be revised to ensure compliance with land use and building regulations. Provision should be made to allow coordination with the State enforcement agency to facilitate enforcement measures and compliance with the provisions of the Acts. Provision for the establishment of a special body to deal solely with enforcement measures (e.g. an enforcement unit) is ideal; other matters to be provided for include enforcement registers; appeals against enforcement notice decisions. The following amendments are being proposed for a new TCPA and FIA22. The new Act must clearly reflect decentralisation of the function which relates to the granting of planning permission that is to be issued for all development projects and which is to ensure compliance with the approved plans (structure, local action area plans). Therefore the MLCPE will 22 (Cham, Muana, & Hope, 2014): 52 | P a g e be responsible for issuing planning permission for any development project being carried out at regional or national levels; or of which it has a special interest by virtue of the nature of the project: i. Local Councils will only be responsible for issuing planning permission at the local level. Provision for creating an enforcement unit charged with responsibility of carrying out enforcement actions as a means of Development control; iii. Provision for the publication of Land Development Control Guidelines which clearly set out prescribed forms of applications for planning permission to carry out development should be made mandatory; iv. Provision should be made for mandatory consultation with other sector ministries/agencies if relevant before planning permission is granted. The MLCPE shall prepare and revise when needed the guidelines used in the process of determination of all planning permission applications; v. Provision for the granting of building permits should be made under the TCPA with the condition that they do not contradict an identified legally binding land use plan. Further, these conditions must be attached to permits which obligate the holder to fulfill all the relevant building regulations. It shall be the responsibility of the MLCPE to support the process of granting building permits by making the necessary guidelines including drawing up a list of other national planning bodies and planning authorities to be consulted in special cases; vi. Building Regulations under the FIA should be revised to meet universal standards and modern design. In particular, buildings are required to be designed, constructed and altered so as to be structurally safe and robust, and also so as not to impair the structural stability of other buildings. Ideally a new law should be enacted which enshrines a standardized building code for the whole country. The MWHI is currently in the process of developing the National Building Standards and Regulations for the whole country. vii. There should be a separate system of control over alterations to buildings, which are listed as being of architectural or historic interest ("listed buildings"). Alterations to such a building that affect its character or appearance should require "listed building consent" (and may also require planning permission if the scope of the proposed alterations or development is above that classified as ‘permitted development’). Such applications should be referred to the Monument and Relics Commission. The owner of a listed building can also be compelled to keep it in a good state of repair to safeguard its architectural or historic significance. 5.3.3 Efficiency in the urban land use planning process: land use plans are current, implemented, do not drive people into informality, and cope with urban growth. LGI 3: Efficiency in the Urban Land Use Planning Process: Land use plans are current, implemented, do not drive people into informality, and cope with urban growth Dim LGI # INDICATOR Policy to ensure delivery of low-cost housing and 3 3 1 services exists and is progressively implemented. 53 | P a g e Land use planning effectively guides urban spatial 3 3 2 expansion in the largest city. Land use planning effectively guides urban 3 3 3 development in the four next largest cities. Planning processes are able to cope with urban 3 3 4 growth. Housing policy The revised National Housing Policy, 2006 provides for access to safe sanitary and decent housing and services, either on home ownership or rental basis, for all Sierra Leones, particularly for low- income and vulnerable groups. However, implementation of the policy has been very weak, and the huge housing deficit continues, resulting from decades of neglect. Most of the housing units are said to be of very low density and poor quality and 60% of the settlement areas in Freetown are considered slums. In 2004, 82.3% of the Freetown households live in one-storey building. Statistics on the housing deficits and densities in the urban cities of Bo, Makeni, Kenema and Kono are not available. The National Social Security and Insurance Trust have designed a program to invest in housing and make them available to citizens. This venture has not entirely succeeded because the cost of the housing units is way beyond the earning capacity of the marginalized. The Sierra Leone Housing Corporation has long stopped investing in low cost housings. In the draft Freetown Structure Plan 2014, the housing deficit for Freetown in 2012 was estimated to be 134,000 units based on the population of 998,000 inhabitants (MLCPE & FCC, 2014). Based on the UN standard of 2 persons per room and 6 persons per household, the 2014 Freetown Structure Plan projects the housing needs in 2028 to be 286,000 residential housing units, with an average density of 43 housing units per ha. The existing demand for land for such housing development projects balances out with the available supply of land at 7,398 ha. Planning of urban spatial expansion Freedom was the subject of active urban planning form the 1940s to the 1960s23 since the rapid growth in population in Freetown within a limited area was raising issues of overcrowding, poor housing and sanitation and slum areas. In the mid 1940’s, when the TCPA was enacted, several areas were declared planning areas in Freetown24 and planning schemes were prepared for these areas as required by the Act with subdivisions of plots, road layouts, and identified public infrastructure and facilities, and residential areas. This was followed in 1963 by the Freetown 23 These problems occupied the attention of planners in the early planning of Freetown, such as; Fry and Farms (1944), Stevens (1955), Doudai (1961) and Borys (1963). 24 Fourah Bay Road Planning Area (PN18 of 1948), Wilkinson Road Planning Area (PN19 of 1948), Ginger Hall Planning Area (PN 20 of 1948) and Cline Town Planning Area (PN69 of 1948).- based on the Fry and Farms (1944) Town Planning Scheme for Freetown who had also proposed the development of outlying areas such as between Kissy Road and Ross Road on the eastern part, Brookfields, Kissy and Murray Town outside the city boundaries, as residential suburbs, and the development of Hill Station area for middle and upper income groups, to address the problems associated with slums in the city. The construction of the Mereweather Road and the King Harman Road in 1948 opened up the area of New England which contains government department buildings constructed by the Royal Air Force during the Second World War, as well as quarters for government officers and the Brookfields hotel. The area was laid on a density of not less than three-quarters of an acre to a building plot (Jarret, 1954). 54 | P a g e Comprehensive Redevelopment Plan25 that included a by-pass round the south-east of the city and a continuous main artery along the northern side close to the sea. The two plans made recommendations for the development of particular streets as main traffic arteries to which other streets would act as feeders. There have been several more attempts to develop land use plans and policies and include among others the following: i. A National Urbanization Plan of 1965, which draws attention to the growing economic prosperity and population concentration in Freetown and the increasing disparity between the city and rural areas; ii. The Preliminary Report and Development proposals for Central Kono (1969/70); iii. The Zoning Map and Rules prepared in 1969 and the local plans prepared for Kissy to Wellington in the east and Tengbeh Town in the west in the early 1970s; iv. Studies carried out for the Freetown Infrastructure Rehabilitation and Investment Programme (FIRP, 1993) laid the foundation for the preparation of the Greater Freetown Structure Plan and Investment Programme, water master plan, drainage and sewage master plan, traffic management study, solid waste management study organization and financial review of Freetown City Council; v. Greater Freetown Structure Plan and Investment Programme (GFSP 1997) is a comprehensive development plan and introducing the concept of strategic structure planning, with role for public and private sectors and local government. The plan also introduced the Simplified Planning Zone (SPZ) concept into the planning process to fast track processing of planning application, and to reduce the burden on potential developers. However, since the introduction of the TCPA no comprehensive development plan has been developed and most plans have remained unimplemented and only few provisions of some plans were carried out particularly in Freetown. These vacuums of planning processing have created eye sores of uncontrolled urban growth in these cities. Currently, in Sierra Leone urban growth and expansion takes place without guidance in the form of urban planning and human settlements tend to expand without proper strategic and detailed land use plans, infrastructure, services and community amenities. The planning scheme preparation methodologies as provided for in the current act focused on isolated technical solutions for the land use, without considering the need for considerations taken to issues such as geographic distribution and increase of population, employment issues, the socio- economic development trends and strategic disadvantages resulting from the rapid urbanisation and to consider what planning decisions should be taken to counteract them; Urban planning and management staff shortages are also evident at the central and local government levels. The capacity of and resources available for local government structures is limited which affects their ability to identify local needs and develop effective strategies that addresses these in line with national development policy. 25 Prepared by Borys (1963) who incorporated some of the proposals from Fry and Farm. 55 | P a g e There have been several other attempts to develop land use plans and policies for the provincial headquarter towns of Bo, Kenema and Makeni, but because of the lack of the political will and institutional capacity, most of the plans and policies were not implemented. The only known plan was that for Kono (The Preliminary Report and Development proposals for Central Kono (1969/70). Today, land use planning is hardly being practised in urban centers in the provincial towns. As in the Western Area urban, local land use planning for city expansion is carried out in an individual or ad-hoc basis, and the authorities often rely on non-statutory plans with little coordination and visions for functional and rational urban development. Recently in 2013, the Bo City Council embarked on a “Development Planning Framework” project to develop a spatial plan for the City of Bo in an effort to control the uncontrolled city expansion. To conclude, the development pressure is ahead of the spatial planning and builds up faster than that the (limited) plans are being prepared. The authorities in many cases have to rely on non- statutory plans or make development control decisions on an individual and ad hoc basis. Local land use planning is carried out in an ad-hoc basis with little coordination and visions for functional and rational urban development. The plans further on do not reflect any national aspiration as expressed in “Vision 25”. Planning schemes do not coordinate with local or national economic development planning and vice versa. There is inaccurate and inadequate consideration of the use of existing infrastructure and an Inadequate review of the general and public needs and interest to be catered for in the plans; Lack of up-to-date base maps and modern facilities to produce them has been a further constraint Development of a vision and policies that address urbanization, settlement distribution and growth in the country and that take into account the inter-relationships between different development zones. Introduce interlinked land use planning at national, regional and local levels. In Sierra Leone land use planning does not effectively guides urban spatial expansion in the largest city. The Government is yet to recognise and appreciate the relevance and the need to make the required investment in urban planning. There is also the lack of political will to make long-term investments in urban planning and development. The MLCPE has already drafted a National Spatial Development Framework, which will provide a holistic approach to rapid urbanization, regional integration, foster strong rural-urban linkages and complementarities, and put a spatial framework as an important policy instrument at the center of the national development. This strategic framework provides for the strengthening Greater Freetown as a platform for national, regional and international trade and business. Recommendations  The need for higher housing densities in certain areas of Freetown calls for the development of new design of housing in multi-storey buildings. The draft Freetown Structure Plan proses that 43% of the available urban land in Freetown should be used for housing development, allowing for an average density of 100 housing units per ha.  Discus and approve the draft National Spatial Development Framework (NSDF), which define the spatial transformation required to develop Sierra Leone. The NSDF will provide a holistic approach to rapid urbanization, regional integration, foster strong rural-urban linkages and complementarities, and put a spatial framework as an important policy 56 | P a g e instrument at the center of the national development. This strategic framework will thereby create functional growth pole areas with comparative advantages that can bring about higher levels of prosperity and sustained socio-economic and agricultural development. The NSDF will also set the basis for the formulation of the National Spatial Development Plan and a National Urban Policy. The draft NSDF awaits public validation and cabinet approval.  Implement the National Spatial Development Plan informed by the National Development Framework, which has already been drafted and awaiting cabinet approval.  Discuss and approve the draft Freetown Structure Plan (FSP). The implementation of the Freetown Structure Plan will guide future spatial development of Freetown. The draft FSP awaits public validation and approval by Cabinet and Parliament.  Fast track implementation of the results of the TCPA review by The Ministry of Lands, Country Planning and the Environment (MLCPE), which has reviewed and proposed amendments to the Town and Country Planning Act. The Government should endeavour to make the required investment so that new settlement areas will be adequately serviced. The MLCPE has also developed a Freetown Structure Plan, which will guide future urban development in the city. There is urgent need for this plan to be publicly validated, approved and implemented.  Undertake research on challenges and potentials related to the physical environment and use this to develop more adequate guidelines, information and data for plan development;  Need for a clearly defined and sufficiently powerful planning authority also to overcome the separation of the planning function between MLCPE and the ministry of Work, Housing and Infrastructure (see introduction) weakens the land use planning system because policy making, development strategies and land use planning have been separated from the enforcement of plans via development control. It can be seen that the present planning system at the institutional level includes several authorities, (the MLCPE, the MWHI, the local government authorities). A revision of TCPA must provide for procedures that ensure efficient information sharing and coordination at the decision making levels among the institutions mentioned above during the planning preparation process. It should also include coordination between the planning authorities and the Ministry of Finance and Economic Development, as land use planning must reflect on- going socio economic development  MLCPE must coordinate with Development and Economic Planning Division in the MFED and the President’s Office on how to transmit the long-term development goals into physical planning. At local level, the local councils must ensure that the local development plans are reflected in the land use plans.  Strengthen technical capacity of the Central Government agency (MLCPE) and local councils. MLCPE is responsible for land use planning, regarding legal skills (improvement in the legal framework) and planning, develop and implement plans at national and regional level and ensure guidelines for physical planning at local level. Currently the Ministry is inadequately staffed, financed and equipped to undertake physical planning. Local councils do not have the capacity to carryout physical planning functions and include long term development goals into their development plans.  Mandate and promote coordination and cooperation between the various divisions in the Ministry and formalised information sharing, consultation and coordination regarding 57 | P a g e development programmes and development projects of importance for urban development and physical planning.  Develop training facilities in the country for land use planning, data collection techniques using IT and GIS, development control and building inspections.  The land use planning authorities and the local councils have to structurally engage stakeholder (NGO’s, civil society and private sector) and ensure public participation in local development planning including issues related to physical development.  Developed a Web-based geospatial database system for effective and integrated land use management and spatial planning, and for effective inter-Ministerial collaboration and coordination. 5.3.4 Speed and predictability of enforcement of restricted land uses: development permits are granted promptly and based on reasonable requirements. LGI 4: Speed and Predictability of Enforcement of Restricted Land Uses Dim LGI # INDICATOR Provisions for residential building permits are 3 4 1 appropriate, affordable and complied with. A building permit for a residential dwelling can be 3 4 2 obtained quickly and at a low cost. Provisions for residential building permits are appropriate, affordable and complied with The Freetown Improvement Act (FIA) and its Rules are used as building guidelines all over the country. Though some of the building standard provisions are very high and unattainable for many builders, they are limited in scope to meet modern day building designs requirements. The non-compliance of the provisions for residential building permits may be attributed to the weak or lack of effective monitoring and enforcement of development controls. That notwithstanding, residential building permits are affordable, because for a two-storey within the western area, the building permits costs just about US$50.00. The mandate for “development control” is being shared by different institutions, primarily by the Ministry of Lands, Country Planning and the Environment (responsible for issuing “planning permission”) and the Ministry of Works, Housing and Infrastructure (MWHI) (responsible for issuing “building permission”). The lack of coordination and collaboration between these institutions makes it extremely difficult to monitor and enforce development controls for managing urban growth and development. The Service Charter of the Ministry of Works, Housing and Infrastructure (MWHI) stipulates 12 days for the application process to obtain a building permit for a residential dwelling. 1) Submission of application to the Chief Building Inspector – 1 day 2) Site inspection and review of the building proposal – 1 day 3) Payment of fees – 1 day 58 | P a g e 4) Registration of application and final review of building proposal – 1 day 5) Issuance of building (construction) permit – 8 days A total of 650 building permits were issued for residential dwelling in Western Area Urban in 2014. Out of this, 56% (367 permits) were issued within 12 days; and 44% (283 permits) in one month. The total number of building permits issued does not seem to reflect the total number of residential constructions going on in Western Area Urban. It is hard to tell the actual number of residential constructions because of the weak monitoring and enforcement of development control. As a consequence, the Government is losing potential revenue sources, which could be used to finance effective surveillance and monitoring systems. Recommendation  The MWHI is currently in the process of formulation new “National Building Codes and Standards” for the whole country. This process should be accelerated and should be done in collaboration with all relevant MDAs.  The FIA should be revised in order to provide for a standardized building code which will form the basic guidelines to be used all over the country.  Though it is acknowledged that implementation is a great problem, it would do well for enforcement notices to be defined clearly; for the procedure for making an enforcement notice to be clearly laid out including procedures for complaints made by the development control authorities; and an appeals procedure for an aggrieved person on whom an enforcement notice is served.  The Government should develop effective surveillance and monitoring systems to enforce development control. The formulation of National Building Codes and Standard is a first step in the right direction. LGI 5: Tenure regularization schemes in urban areas LGI INDICTOR Formalization of urban residential housing is feasible 3 5 1 and affordable. In cities with informal tenure, a viable strategy exists for 3 5 2 tenure security, infrastructure, and housing. A condominium regime allows effective management 3 5 3 and recording of urban property. The formalization process here referred to legal housing construction in urban areas. The requirements for formalizing housing constructions include the following: 1) File a notice of commencement of building to the Chief Building Inspector; 2) Routine site inspection and reporting on the stages of construction work by the Ward Building Inspector/Area Supervisor; 3) Inspection of utilities (water, electricity, etc.) 4) File a Notice of Completion with the MWHI for final inspection of building; 5) Issuance of Certificate of Completion of building. 59 | P a g e If formalization process relates to legal housing construction in urban areas, then certainly it is feasible and affordable. There are no policies or regulations in place to formalize housing constructions in informal settlement areas such as slum areas, which are illegally occupied by squatters. Most of the slum settlement areas are State Land. The draft Structure Plan 2014 identified over 20 slum settlements in Freetown, and these include:  In the foreshore/coastal areas: Dokoty, Banana Water, Kroo bay26, Susan’s bay, Moa Wharf, Old Wharf and Bonga Town;  Along slopes of stream valleys: Granville Brook, Red Pump, Grey Bush,  On hillside slopes: extending from Black Hall Road to George Brook;  In inland slums: Kroo Town, Magazine Cut, Fire Burn, Alpha Morlai, King George Farm, George Brook, Cline Town, Ginger Hall, Bonga Town, and Odokoko. Within the slums the housing is available. That is why slum dwellers go there in the first place. There are ways of formalising informal occupations, as shown in Table 4. Table 4: Forms of informal land occupations Formalization Growth in Formalization process Implementation informality 1. Informal (non- documented) urban settlement on private land 1 2 3 2. Informal urban occupation on public/State land 3 3 3 3. Informal occupation of customary held forest land 1 2 3 Informal occupation protected State land (national parks, wildlife reserves, etc.) 3 3 1 26 Kroo Bay is one of the largest slums in Freetown and a highly differentiated residential and commercial quarter within the city of Freetown. It is characterised by a large variety of land uses (light primary sector activities, commerce and trade, playground, facilities, residential, etc.) distributed within the entire area. On the other hand, and despite the existence of numerous facilities within the settlement, Kroo Bay is connected through economic inputs and outputs, jobs and cultural relations – in particular education and religion, to Freetown city center and fully dependent of these interrelations. The built environment is very poor, mostly consisting of shacks built from temporary re-used material (corrugated iron sheets, wood). The housing units are generally very small, providing an average of 12m² and composed by only one room. 60 | P a g e 1= Very limited 1 = Clearly defined number of new rules that cover most informal settlers in cases; 1 = Efficient & the past year; 2 = Clearly defined transparent; 2 = Some new rules that cover about 2 = Some discretion informal settlers in half the cases; in the past year; 3 = Rules not clearly implementation; 3 = Many new Codes: defined, and/or most 3 = Significant informal settlers in cases not covered. discretion the past year. There is currently no policy in place to formalize or regularize informal settlements on State land or encroachment on private lands. There is currently no policy framework in place that recognizes common property under condominiums. However, in practice, very few private developers have started offering common property under condominiums. In such instances, they allow for effective management of urban properties. Recommendations:  There is need for the Government to formulate an urban policy, which will address the issues of slum settlements and the formalization of informal settlements. The draft Freetown Structure Plan proposes strategies for improvement of slum settlements in Freetown: o Establish a long-term slum upgrading plan identifying the areas in need and list of priorities. o Resettle slum dwellings in areas under threat of natural disasters such as flooding and landslides. o Promote slum upgrading projects in safe slum areas in cooperation with the state, private sector and NGOs involving the communities; o Identify sources of needed technical assistance and financing options, including micro- financing loan arrangements to support rehabilitation of slum areas by community members.  Start developing a policy for condominium as part of the need for more densification in Freetown. 5.4 Panel 4: Public Land Management Good governance requires transparent and accountable management of public land for the public interest, including processes by which land is acquired and released by the State. The “Public land”, “crown land” or “State land”, which is the term used in Sierra Leone, is the category of land and water bodies reserved strictly for land managed by MDAs of government Ministry of Works, Ministry of Transport, Sierra Leone Roads Authority, Ministry of Agriculture 61 | P a g e Forestry and Food Security etc., It is land used for government use or for general public use27 as defined in the States land Act of 1960 and the Crown Lands Ordinance, CAP 193, 1960. It includes all shores, beaches, lagoons, creeks, river estuaries and other places and waters. In customary systems, “public land” also exist for the land for which customary authorities have assigned land and resources that is explicitly to be used and accessible to the public at large such as grazing lands, forests or fisheries (Unoccupied Lands Act, Cap117 of Laws of Sierra Leone 1960 and the State Lands Act N0.19 of 1960). This category of land was discussed in module 2 on “communal” or common lands and will not be discussed in this section. The Urban Planning Project within the Ministry of Lands Country Planning and the Environment (MLCPE) is responsible for Public lands and the Freetown City Council. However, most State land in the western area is former crown land that was bought by the British and became state land after independence. This land can be granted but is also “grabbed”. Other sources of State land are land compulsory acquisition (expropriation) for the public interest from land owners the procedure of which is laid out in the State lands Act (1960), including compensation. Land owners are compensated by offering them alternative land to relocate and financial payments like for example, in the case of the west-end of Freetown when the government had to acquire land for road constructions. Also under the Administration of Estates Act, Cap 45 of the laws of Sierra Leone, the State has a right to take unclaimed assets of persons dying intestate as bona vacantia. Compulsory acquisition (or even repossession on state land) can also result from unwarranted development, such as individuals building without permit, undertaking constructions in identified ‘right of ways’, and putting up structures on state lands without permit. In such cases, government does not compensate the ‘owners’ of such structures. On the contrary, these owners are expected to do the demolition at their own expense. Failing to do so, Government can demolish and recover the cost of such exercise from the ‘claimants’ of such lands. The definition of State land is the same in the provinces, but here concerned MDAs wanting to acquire land for public interest will negotiate with deal directly with the Paramount chiefs (The Provinces Land Act Cap 122). The State land thus acquired is managed by devolved staff from the MLCPE, concerned MDAs and the local councils, but in consultation with traditional authorities and consist mainly of protected areas for forestry and wildlife. Restrictions and exemptions on the disposal of crown lands: “Except with the consent of the Governor first had and obtained or except as may be otherwise provided in any law, no Crown lands shall be sold or otherwise disposed of for an estate in fee simple. A grant under this Ordinance shall not, unless express provision to the contrary is contained therein, confer any right to— (a) the water of any spring, river, lake or stream other than such water as may be required for domestic purposes upon the land which is the subject of 27 62 | P a g e the grant; (b) the foreshore or to the banks of any navigable water-way; or (c) any mineral or to any mineral oil (Crown Lands Ordinance, CAP 193, 1960) Approach for compulsory acquisition The State Lands Act, CAP 116 of 1960 makes provision for situations wherein the government may want to acquire certain lands in order to undertake ‘public works’ in the country.  By Sec. 3, the Minister can authorise his agents or servants to enter into any land to survey and do other acts as may be necessary with a view to appropriating such land for Public works. The Minister must issue a warrant to direct that such land should be acquired for the service of the State. A notice is to be served on the owner or any person interested in such land within eight days from the date of such warrant.  Within eight days of the intended appropriation, a plan of such land is to be drawn up and such plan and a certificate are to be registered at the Office of the Registrar-General. Section 9 provides that any land that has been taken and appropriated for the service of the State, the registration of a plan of such land, together with the certificate in the Office of the Registrar- General, shall be conclusive evidence that such land has been set out, appropriated and taken for the service of the State under the provisions of the law.  Within twenty–one days from the date of the publication of such warrant, the director of surveys and lands can enter such land with his workmen in order to take the portion of land as specified in the warrant. Such land is to be marked out and a notice posted in a conspicuous place.  Sec. 15 of the Public Lands Act provides that the owners, occupiers and persons interested in such land that has been appropriated are entitled to and shall receive compensation for the value of the land taken and appropriated and for the damages sustained by owners, occupiers and other persons affected by reason of the exercise.  Cases in which the owners of lands that have been marked out for public work and the owners of such lands refuse to give up possession are dealt with in sec 14 of the Act. In such cases, the Minister shall do another warrant directed to the Sherriff ordering him to deliver possession of the said land to the Director of Surveys and Lands. If the owner still refuse to give up the land will be compulsorily acquired. The costs accruing as a result of the execution are to be taxed by the Court, and deducted from the compensation. a) Section 17 provides that if there is dispute over compensation due, the matter shall be handled by the High Court. In determining the quantum of compensation, section 18 provides that the Court shall consider the following (i) The market value at the date of the publication of the warrant under section 4 of the Act; (ii) Any increase in the value of other land of the person interested likely to accrue from the use to which the land acquired will be put; (iii) The damage, if any sustained by the person interested at the time of the taking possession of land by reason of severing such land from his other land; (iv)The damage, if any, sustained by the person interested at the time of the taking and appropriation of the land by reason of the acquisition injuriously affecting his other property whether movable or immovable in any other manner or his actual earnings; and (v) If, in consequence of the acquisition, he is compelled to change his residence or place of business, the reasonable expense, if any incidental to such change. 5.4.1 Identification of public land and clear management 63 | P a g e LGI 1: Identification of Public Land and Clear Management Dim LGI # Indicator Criteria for public land ownership are clearly defined and assigned to the right level of 4 1 1 government. 4 1 2 There is a complete recording of public land. 4 1 3 Information on public land is publicly accessible. The management responsibility for different 4 1 4 types of public land is unambiguously assigned. Responsible public institutions have sufficient resources for their land management 4 1 5 responsibilities. All essential information on public land allocations to private interests is publicly 4 1 6 accessible. Sierra Leone has an appropriate legal framework to manage state land, dating from the 1960s such as the Crown Lands Ordinance, CAP 193, 1960; State Lands Act, CAP 116 of 1960, Unoccupied Lands Act, Cap117 of Laws of Sierra Leone 1960, and the Provinces Land Act Cap 122 but is also influenced by the constitution of 1991. As described in the introduction, the law defines public interest, procedures for disposal, procedure for compulsory acquisition and management responsibilities. The Town and Country Planning Act, Cap 81, establishes a Town and Country Planning Board, which handles such matters. The Board can cause a whole or any part of an area to be entered upon, examined and surveyed for the purpose of deciding whether or not a scheme should be made in respect of it or any part thereof. Before now, the administration of state lands starts with the identification of the land by the Surveys and Lands Division. They conducted a perimeter survey to demarcate the land. This was handed over to Country Planning Division for both physical planning and development control. Country Planning Division officers consulted with the Environment Division for environmental inspection of the demarcated land. This Division issued a Planning Permit based on their findings. The Country Planning Division prepared a Layout Plan for the demarcated land identifying suitable locations for public facilities, and determining how many town lots to be issued to one applicant. The Administration Division used this layout plan to offer plots of land to applicants. The system is no longer ‘synergistic’ between the Divisions as it used to be. Over time, there have been so many obstructions in the system that it is no longer coordinated as before. Political interference in the allocation of state lands is one of the factors largely responsible for this scenario. The Planning Permit, for example, which was the main area of involvement of the Environment Division, is no longer enforced. The role of this division in the land delivery process has therefore disappeared. Country planning staffs role is sometimes overridden and / or subsided in the delivery of state lands, as state lands can be issued without their involvement. These in effect are creating undue problems in the documentation and recording of state land transactions. 64 | P a g e However, there is ambiguity reading the definition of public purpose, because under the constitutional provision public purpose includes also takings that ‘promote the public benefit or the public welfare of citizens’ (Art. 21(1) (b) but without defining exactly what elements of ‘public benefit” or “public welfare” are grounds for compulsory acquisition (see also next section). Regarding compulsory acquisition, when government acquires public land, it must be gazetted. But these gazettes are not regularly published, though when published, they are easily accessible at the Government Bookshop. All public land is vested in the Ministry of Lands, Country Planning and the Environment and its Minister is responsible for the administration of State Land Act No. 19 of 1960, as amended. Implementation capacity is however another challenge. The LGAF investigations indicate that, presently, there are no proper control or management measures in place, at MLCPE. This creates an appreciable level of ambiguity, thereby failing to lead to the attainment of equity and efficiency in practice. The MLCPE, like most public institutions has very inadequate resources for land management responsibilities in general. There is also dissatisfaction by local governments regarding the way that the central level is managing state lands. Record keeping is another challenge. The Government has no compete recording of public land. Given that mapping has not been done in Sierra Leone since the 1960s, the recording of public land is incomplete. Moreover, it can be concluded from interviews with staff at the MLCPE and MAFFS that most of the records on public lands that did exist were either destroyed during the war or have been misplaced. One implication of absence of records and limited management capacity are the indications that state land has been appropriated and registered as freehold. The draft National Land Policy (2015) has made provisions for recording of all state land to be done at both national and regional levels. The government has the authority to allocate State land for private interest, within restrictions of the law (see introduction and relates to process of granting permission and excluding lands with domestic water sources, beaches and minerals). However, there is no policy on land allocation and there is no complete record of the amount of State land being granted by government to individuals. Although there are legal requirements for record keeping public land allocation to private investors and public accessibility of these records, through the General Registration Act Cap 255 and the Registration of Instruments’ Act CAP 256, this is not strictly adhered to, leading to situations where such records are only partially kept, though publicly accessible. Given that the Ministry was unable to provide any evidence of comprehensive records of all state lands both in the Western Area and the regions, makes it highly possible for the same piece of land to be allocated more than once. Although provisions in the laws of Sierra Leone for accessibility of all essential information, as carried out by the OARG, most times there are challenges associated with this. Recommendations 65 | P a g e  Government should undertake very comprehensive set of records for state lands all over the country. Documents showing the use, to which these lands are meant to be put, should be easily accessible to anybody, so that their actual use could always be verified.  Strengthening of State land management capacity and oversight functions within the relevant MDAs- particularly to ensure also that State land are managed in such a way that they contribute to economic development  Responsibilities should be assigned clearly and unambiguously which will facilitate effective monitoring of public land and avoid corrupt practices  Prepare a policy for allocation of State land to individuals  Government should upgrade its gazette system and incorporate on a more regular basis activities on public land. 5.4.2 Justification and time-efficiency of acquisition processes: the state acquires land for public interest only and this is done efficiently LGI 2: Justification and Time-Efficiency of Acquisition Processes Dim LGI # Indicator There is minimal transfer of acquired land to 4 2 1 private interests. Acquired land is transferred to destined use in a 4 2 2 timely manner. The threat of land acquisition does not lead to 4 2 3 pre-emptive action by private parties. The State land Act defines public interest for compulsory acquisition (expropriation) as follows: “Public purpose is defined as “means and includes– (a) for exclusive Government use or for general public use; (b) for or in connection with sanitary improvements of any kind, including reclamations; (c) for or in connection with the laying out of any new Government station or the extension or improvement of any existing Government station; (d) for obtaining control over land contiguous to any port or airport; (e) for obtaining control over land required for defence purposes; (f) for obtaining control over land required for civil aviation purposes; and (g) for obtaining control over land the value of which will be enhanced by the construction of any railway, road, or other public work or convenience about to be undertaken or provided by the Government” Compulsory acquisition is taking place for development purpose, such for road works in Freetown. However, this definition is being broadened via the constitutional provision public purpose includes also takings that ‘promote the public benefit or the public welfare of citizens’ (Art. 21(1) 66 | P a g e (b). However, the definition of public interest had been expanded and now also includes compulsory acquisition for private investors. For instance, government recently expropriated land for investments in rubber and rice plantations by the Chinese. This land is being transferred. The LGAF team was not able to make a full overview of all expropriations that have taken place recently, and how much was transferred for private interest, reason why this dimension could not be scored. There is no information on pre-emptive action because of expropriation. Whatever actions have been taken, so far, are after the start of operations. Recommendations  Record keeping on transfer of state land that is compulsorily acquired has to be complete and kept up to date. Such records should indicate how much land was transferred for private interest; and on what conditions, with a monitoring system in place to ensure compliance.  These data should be made available to the public. 5.4.3 Transparency and fairness of acquisition procedures: acquisition procedures are clear and transparent and fair compensation is paid expeditiously. LGI 3: Transparency and fairness of expropriation procedures: Dim LGI # INDICATORS Compensation is provided for the acquisition of 4 3 1 all rights regardless of their recording status. Land use change resulting in selective loss of 4 3 2 rights there is compensated for. 4 3 3 Acquired owners are compensated promptly. There are independent and accessible avenues 4 3 4 for appeal against acquisition. Timely decisions are made regarding complaints 4 3 5 about acquisition. In the introduction, the legal provision for compensation in the case of compulsory acquisition (expropriation) were presented as listed in the The Public Lands Act, Cap 116 of the Laws of Sierra Leone 1960 and the Town and Country Planning Act, CAP 81. Both make provisions for compensation to be paid in case of compulsory acquisition of all rights with a recorded status, according to market values according to the law. In practice, for land in the Western Area, the government will negotiate with the landowner to determine the quantum of compensation for the value of the land that is legally recorded. For example, compensation for the reconstruction of the road at Hill Court road was determined by the government through the Ministry of Transport, Land, the Local Council, SLRA, etc. This may not be the market value. In addition, no compensation is paid to those with unrecorded rights. Payment is slow and normally less than 30% received compensation within one year. 67 | P a g e As already indicated, compensation can be in kind (another piece of land) or in the form of cash payment, but compensation is not prompt. In spite of the legal instruments, expropriated owners are not adequately compensated in the eyes of the land owners, in most cases. This is due to the lack of an objectively verifiable market price. In the provinces, the analysis of this indicator is more ambiguous given that the long-term land leases of customary land are perceived as expropriation, although officially this is not the case. Long term leases will be discussed in the next section as “public lease”, although these are not “clear-cut public” leases, as these are between customary authorities and investors, with facilitation by government. An appeal to the national courts on compulsory acquisition related issues is available to all aggrieved parties in accordance with the State Lands Act No.19 of 1960 and the Public Lands Act, Cap 116 of the Laws of Sierra Leone 1960. Although the courts are very accessible, the panel members observed, however, that land owners with low income are restricted in using the courts, because they do not know the procedures involved and do not have access to, or cannot afford the lawyers to defend them. There are no accurate statistics on caseloads relating to amount of complaints received and whether decisions made are timely. However, it is estimated that over 70% of civil cases are related to land in the Freetown High Court. In the provinces though, jurisdiction to determine customary land is vested in the Local Authorities or Local Courts. In both cases, though, the impression is that complaints about expropriations are not attended to in a timely manner as court cases take a long time (see section 8). Recommendations  Independent and professional assessment of land value for compensation  Timely payment of compensation  Improve appeal and redress mechanism for those aggrieved by compulsory acquisitions. 5.5 Panel 5: Transfer of Public Land to Private Use Follows a Clear, Transparent, and Competitive Process The previous section discussed the extent to which compulsory acquired land is transferred for private use. This section assesses policies for transfer of all types of public land for private interest, not just expropriated land. Sierra Leone has a particular situation for rural land as most land transferred to private parties (investors) is customary land, not state land, and through long-term renewable leaseholds instead of sales. The direct transfer of State land to private parties is concentrated in the Western areas can include individuals and firms, a process that has already been assessed in the previous section. The government of Sierra Leone has been very active in promoting large-scale agribusiness and attracting FDI. Foreign Direct Investments (FDIs) are great opportunities for countries like Sierra Leone that are not particularly attractive to investors, but these should be undertaken with transparency and equity at the back of our minds. FDIs generate investment money, introduce new 68 | P a g e technologies and build skills, may create jobs and attract additional investors, while the state is bound to benefit from various revenue streams accruing from the operations of the FDIs (corporate tax, income tax etc.). The Sierra Leone Investment and Export Promotion Agency (SLIEPA) has been spearheading the drive for foreign direct investment in farmland. Established in 2007 by an Act of Parliament, and under the jurisdiction of the Ministry of Trade, SLIEPA is tasked to (i) facilitate registration of business enterprises and assist investors in obtaining permits, licenses, certificates or clearances needed for the commencement of business (that is, acting as a “one-stop” centre); (ii) assist potential investors in identifying joint venture partners in Sierra Leone and (iii) promote investors' entry into the country without hindrance and to facilitate business start-up28. The government also passed the Business Start-up Registration Act with amendment in 2007 providing a legal basis for investor companies to do start business without bureaucratic delays. 29 SLIEPA has been instrumental in encouraging foreign investors to invest in Sierra Leone. In 2009, Sierra Leone attended an investment conference in the United Kingdom were it invited investors to develop industrial agriculture in the country. The country attracted 10 active investors into the agriculture (including biofuel), particularly in the provinces of Sierra Leone.30 Agriculture and bio- energy have attracted interest of over 40 investors mostly interested in the Provinces. About 30 signed a lease agreement but of which only 631 are active.32 The rest have not taken up their leases to start activities. There are no complete and reliable statistics for all large farms or the land use in Sierra Leone. NGOs estimate that in the Provinces at least 1,154,777 ha, (about 21 % of the country’s total arable land) was leased out for a 50 years with possible extensions of 21 years to investors for large-scale industrial agriculture (Baxter et al 2013). Most of the investor companies were aided by government through SLIEPA and MAFSS. The other investors started business on their own. Government have continued to encourage investors to invest in the land sector in spite of the growing call for caution by CSOs in response to the problems on the ground, such as disrespect for legitimate land rights and even dispossession (see assessments). There are three important parliamentary committees relevant to this discussion, namely: (i) the committee on lands; (ii) the Committee on Agriculture Forestry and Food Security; and (iii) the Committee on Mines and Minerals These basically provide oversight responsibility to those ministries and ensures that the business of Government is implemented and protocols followed. Parliament also ratifies government policies. 5.5.1 Transfer of public land to private use follows a clear, transparent, and competitive process and payments are collected and audited (with the exception of transfers to improve equity such as land distribution and land for social housing). 28 SLIEPA website (2015): http://www.investsierraleone.biz/index.php?l=english&p=106&pn=Functions 29 UNIPSIL website (2015): http://unipsil.unmissions.org/portals/unipsil/sierraleone/laws/200716general_law_amend.pdf 30 The Agriculture and bioenergy sectors alone claim over 30 investors, yet as at writing this report not more than 10 investors are active to the extent of starting at least a nursery site. 31 Sierra Leone Agriculture/SIVA Biopalm, ADDAX Bioenergy, Socfin Agricultural Company Sierra Leone Limited, Goldtree, Sierra Rutile Agricultural Investment, and African Lion Mountain. Except for the SRAI investing in fruits (pine apple and banana) the rest are in industrial crops such as oil palm, rubber, and sugar cane. 32 SLIEPA website: http://investmapsl.org/agriculture (24/02/2015) Green Scenery unpublished record. 69 | P a g e LGI 1: Transfer of Public Land to Private Use Follows a Clear, Competitive Process and Payments are Collected Dim LGI # INDICATOR Public land transactions are conducted in an 5 1 1 open transparent manner. 5 1 2 Payments for public leases are collected. Public land is transacted at market prices unless 5 1 3 guided by equity objectives. The public captures benefits arising from 5 1 4 changes in permitted land use. Policy to improve equity in asset access and use 5 1 5 by the poor exists, is implemented effectively and monitored. Land transactions involving state land or customary land are not conducted in a transparent matter. State land allocation for private use in the western areas is not following an open tender process. There are announcements referring the public to the availability of public lands; and their subsequent disposal through acceptable procurement processes, which will ensure market prices. Protected State land can also be assigned for private interests as a lease 33 . For instance, when decisions are taken to bring forest reserves into use for development, only MAFFS and MLCPE are involved. Such lands are transferred to individuals and companies without any open and transparent process. The majority of land transactions are in the provinces, but there are no official statistics of the amount of land that is under long-term lease to investors or under negotiations. Equally, in the Provinces long-term land leases with (external) investors are not allocated via auction or open tender process in the past three years. Land leases are negotiated directly with chiefs and other landowners. The Chief is expected to consult with heads of families of land owners before reaching a conclusion with the government (usually there is involvement of an MDA). When Chiefs signed contracts with investors, sometimes they do not adequately inform their community members or the public on consultations, negotiations and the details of the final contract agreement between customary authorities and investors on compensation for public land or on the role of government agencies. However, panel members reported that the signatories do not always have copies of the contracts and are not fully aware of the terms of the leases or even the land area covered by the contract. The Assessment expresses a general concern over the lack of transparency and public disclosure for all aspects of the existing land lease deals. Research has shown that most landowners whose land is now being occupied by investors did not give a free, prior and inform consent. 34 There is also little critical or accurate media coverage of the land deals. 33 According to Section 4, Land Development Act, 1962, the Government can lease State land 34 Gerlind Melsbach and Joseph Rahall, edited by Claudia Rommel and Constanze von Oppeln, 2012. "Increasing Pressure for Land: Implications for Rural Livelihoods and Development Actors A Case Study in Sierra Leone." 70 | P a g e Market prices are probably not being used in determining the lease value for State land or customary land is leased at market prices. There is no official process for determining the land value and there is no standard of what constitutes a base value. The yardstick used by investors is the location of the land and availability/proximity of infrastructure (major road, electricity, water, access to ports). The assessment did not find a procedure for price setting for the allocation of State land in the western area. In the provinces, the government is involved in negotiations between the investor and the paramount chiefs who represent the actual landowners. The fee is based on the estimated value of the land and additional damages sustained by such owners. It not clear on what basis valuation of this land is done. For example in the case of Addax, one of the better known examples of long-term leases, the lease value of USD 3.35/ha was set as fee, but this is perceived as too low (does not allow a meaningful maintenance of social and economic status that existed before the land was leased) and not being paid. It is reported that Agri-capital Ltd operating in the Bumpeh Gao chiefdom involved in rice production on 3,036 acres is paying just one bushel of paddy rice per acre annually as rent over a period of 50 years.35. There seems to be no government policy to ensure that the public captures benefits arising from changes in permitted land use. On the contrary, investors are given subsidies in the form of tax holidays. Agricultural investments benefit from 10-year corporate tax holidays and zero import duty. The country allows 100 percent foreign ownership of enterprise ownership in all sectors; there are no restrictions on foreign exchange, no limits on expatriate employees and full repatriation of profits, dividends and royalties. There are discussion in the Minister of Finance and Economic Development to review the regimes of tax and duty exemptions as these are eroding the government’s tax base. Payments for public leases are collected for most leases in the western areas, where government collects the fees for public leases. The National Revenue Authority (NRA) is charged with the responsibility of collecting all payments for public lands yet these payments are not monitored. Furthermore, there is no coordination between government institutions dealing with revenue collection for government property including land; and there is also scarcity of data on such transactions. No official prescribed method is in place for making payments for customary land leased in the provinces. Leaseholders are bound to pay their rent, as per the agreements signed between lessee and the representatives of the landowning families in the Provinces. Most investors pay royalties to the traditional authorities in the provinces and sometimes perform their social corporate responsibilities in terms of undertaking development activities in the communities. Lease rent payments have been largely done in public through the chiefdom authorities often in the presence The Oakland Institute, 2011. "Understanding Land Investment Deals in Africa. Country Report: Sierra Leone." Mike Anane and Cosmos Yao Abiwu, 2011. "Independent Study Report of the ADDAX Bioenergy Sugarcane-to-Ethanol Project in the Makeni Region in Sierra Leone." 35 Mohamed B. Swaray (NMJD), 2013. Report on the investigation into the activities of Agri-capital Company in the Yoni community, Bumpeh Gao. 71 | P a g e of government representatives at district level and security agencies. The payments are often in cash. There is a procedure in the provinces for dividing the lease hold fees from large scale land leases: Land owners = 50%, Chiefdom council 20%, District council 20% and consolidated fund 10%, but there is no evidence that the latter is being put in place. However, discussions with land owners in the Bo Reservation, where Government had built houses for senior Government Officials, since colonial times, shows that the obligations for the annual lease payments for land acquired from land owning families, have not been honoured by the government for over 30 years. There is no explicit policy in Sierra Leone to assign state land to private interest from an equity perspective (such as plots for low income groups for housing or land distribution to the land less). The 2005 Land Policy did not adequately address equity in land asset access by the poor through state land redistribution. The new National Land Policy (2015) will address this issue. Recommendations  A modern method of land valuation should be adopted and a base value for land in parts of Sierra Leone should be established and reviewed regularly.  Individual land holdings must be calculated and paid out at the individual family/clan level. Payment for community/public land is made through the chiefdom authorities and in public.  Land sales whether public of private should be made open and made public for accessibility.  There should be a distinction between community/public land and family/clan land and these should be separated through proper land demarcation and documentation in the form of land titling particularly when it when it will form part of a larger estate of an investor.  There should be established a public means of communicating availability of land for land transaction.  All land transactions (small or large) should be made public and should be accompanied by the values 5.5.2 Private investment strategy LGI 2: Private Investment Strategy Dim LGI # INDICATORS Land to be made available to investors is 5 2 1 identified transparently and publicly, in agreement with right holders. Investments are selected based on economic, 5 2 2 socio-cultural and environmental impacts in an open process. 72 | P a g e Public institutions transferring land to 5 2 3 investors are clearly identified and regularly audited. Public bodies transferring land to investors 5 2 4 share information and coordinate to minimize and resolve overlaps (incl. sub-soil). Compliance with contractual obligations is 5 2 5 regularly monitored and remedial action taken if needed. Safeguards effectively reduce the risk of 5 2 6 negative effects from large scale land-related investments. The scope for resettlement is clearly 5 2 7 circumscribed and procedures exist to deal with it in line with best practice. Evidence abounds that land owners are disgruntled because of the highhanded manner in which their lands are ‘taken away’ from them. This is due to the provisions of CAP 122 of the Laws of Sierra Leone, which vests the title deeds of such lands, in the provinces, to statutory trustees. The social-cultural and environmental impacts of these transfers are negative, and they are not selected in an open process. The community members do not even participate in these transactions, let alone being transparent, although there are processes in place. For instance the MAFFS guidelines clearly spell out the need for investors, in agriculture, to embark on out-grower schemes for local farmers. However, it appears that investors ignore them. For example active companies like ADDAX, SOCFIN, SLA/Geoffpalm that are in advanced stages of implementation, have not directed investments in out-grower schemes, as required. A number of institutions with decision making powers can be identified. The ministry responsible for lands (MLCPE) has the surveying department within its structures advising on survey methods and applications. The Ministry responsible for agriculture (MAFFS) advises on crop mapping in the country, e.g. regions in the country suitable for what type crop. They advise on available incentives for agro-based businesses. Advise on the MAFFS guidelines and follow through with implementation. The agency responsible to attract investors into Sierra Leone (SLIEPA) supports investors as they come in country. SLIEPA assists the process of a one-stop shop for business registration. SLIEPA assist investors navigate the myriad processes of land acquisition. The office of the President hosts an agricultural advisor and the Environmental Protection Agency (EPA). The former advises the President to take critical decisions on agricultural policies of the government and the latter is the agency that advises on environmental issues and further grant licenses to huge projects that causes environmental degradation. The institutions have the competencies and levels of capacity. However, they are under-resourced and have inadequate incentives that should engender follow-ups that will lead to the derivation of social benefits from investors. The Assessment concludes that there are no safeguards are established and applied in procedures and regulations to prevent investments involving large tracts of land from infringing on or 73 | P a g e extinguishing existing legitimate tenure rights. Procedures hardly relate to the remedies for infringement or voiding of existing tenure rights. Such remedies are sought through compensation via the court system, but which may not always be accessible (see section on expropriation). Civil society groups like ALLAT, Green Scenery, NAMATI and SiLNoRF have consistently monitored investments such as ADDAX, SOCFIN and Sierra Leone Agriculture/Geoffpalm, to ensure that existing tenure rights are not just disregarded without adequate compensation and that there is compliance. There has been no coordination and no policy on land uses and rights. There are being developed a land use planning and land policy documents, but are not yet approved by Parliament. At the moment, therefore, land use and land right is loosely being decided by some ad hoc arrangements depending on the individuals or communities involved. The land policy has recommended the establishment of a land commission. The policy has also proposed the establishment of an effective and publicly accessible land information system. The information system should include but not limited to land cadastre or land use planning. Indications of prime locations and other information to determine value should form part of the information design. In addition, there are several institutional and administrative overlaps. However, the lack of a clear policy framework on large-scale investments results in much ad-hoc policy decisions by the MDAs involved. Mandates are not clearly identified and it is therefore difficult to avoid institutional and administrative overlap. Public institutions involved in transfer of large tracts of land to private investors do not systematically share land information and there are no effective inter-Ministerial coordination mechanisms in place to timely identify and solve competing land use assignment (incl. Sub-soil for mining). The EPA requires an Environmental, Social Investment Analysis of all such investments; from which safeguards are identified. However, due to the lack of effective monitoring capacity of EPA, the transferees don not adhere to the safeguards Sierra Leone has no policy for cases where resettlement is needed possible are thus also no clearly circumscribed and procedures to carry it out are in place. Resettlement plans are in existent but on a case by case basis and usually as part of the investment agreement. While there has been no resettlement in the agricultural sector, there has been several in the extractive sector. For instance Sierra Rutile, the company that extracts Titanium, has undertaken a number of settlement activities based on their own model. Recommendations  A proper tool should be designed to assist investors and communities follow a step-by-step procedure of how to acquire land in the provinces. The procedure should be transparent and inclusive of not only land owners but also land users.  Ways to make land available to large scale investments must be explored for instance investment into the practice of sedentary farming could be done to examine the outcome.  A study of agricultural/investment models that should entertain benefit sharing or incorporate the means of supporting host communities with long term sustainable growth 74 | P a g e through farming practices and technology transfer should be undertaken with the intention that the end results will be adopted/adapted.  Institutions must be resourced and staff incentivized to cope with the demand to deliver the required services that will ensure the derivation of social benefits  To avoid administrative overlaps, institutional collaboration must be instituted.  The land commission should primarily be responsible to administer land. Its function should not be to own land, neither should it be to ascribe land to anybody.  A well developed and progressive information system should be designed and regularly updated. This should be available to the public through web-based systems.  Agencies responsible for monitoring of investors for whatever purpose of compliance should ensure it is done rigorously and regularly.  Civil society organisations must be given space to monitor compliance and a way of augmenting the efforts of government.  As a matter of urgency, there is the need for a resettlement policy and law which must be based on human rights principles and international best practice. 5.5.3 Policy implementation is effective, consistent and transparent and involves local stakeholders LGI 3: Policy Implementation is Effective, Consistent and Transparent Dim LGI # INDICATOR Investors provide sufficient information to allow 5 3 1 rigorous evaluation of proposed investments. Approval of investment plans follows a clear 5 3 2 process with reasonable timelines. Right holders and investors negotiate freely and 5 3 3 directly with full access to relevant information. Contractual provisions regarding benefit sharing 5 3 4 are publicly disclosed. MAFFS' investment guidelines into the agriculture sector requires a proposal in the form of a business plan with sufficient evidence of capacity, sustainability (out-grower scheme) as well as social and environmental benefits and safeguards by the investment. There is also a performance monitoring of the investment in the policy which warrants that should provide a bank guarantee as safeguard for failure during the 5-year incentive period. The capacity of the ministry to rigorously interrogate business plans viability and sustainability is inadequate. The guidelines require consultations which invariably are provided. The quality of representation in the consultations is mostly inadequate, meaning that participation is often than not exclusive ensuring unfair representation of community shade; especially women and young people. There is free, prior and informed consent on the part of the land owners. 75 | P a g e The new National Land Policy is requesting sufficient information from investors for government to assess the cost-benefits of the proposed investments. There is also a performance monitoring of the investment in the policy which warrants the investor to provide a bank guarantee as safeguard for failure during the 5-year incentive period. As indicate in the previous section, there are no free, direct and transparent negotiations between right holders and investors. In addition, legitimate rights holders do not have always access to information. It is always important to note that title in provincial land is not vested in the land owners, but rather in statutory trustees, “who hold such lands for and on behalf of land owners. . The agreement is debated by Parliament, which constitutes the peoples’ representatives; and the final conclusion of the agreement is reflected in an Act of Parliament. This is made available to the public at points of sale. In addition the MPs are given copies to interpret and disseminate in their constituencies. Recommendations  It must be mandatory that all investment documents are fully assessed and reviewed, with recommendations adhered to before investors proceed with their operations.  Land owners should be made to be involved in the negotiations of lease  Affected communities must be supported with lawyers during negotiations for lease fees and lease agreements.  Contracts or Memorandum of understanding should be made public to avoid wrong public perception and speculations.  They should be properly negotiated to trap benefits for affected communities and the country 5.5.4 Contracts involving public land are public, easily accessible, with agreements monitored and enforced LGI 4: Contracts Involving Public Land are Public and Accessible Dim LGI # INDICATOR Information on spatial extent and duration of 5 4 1 approved concessions is publicly available. Compliance with safeguards on concessions is 5 4 2 monitored and enforced effectively and consistently. Avenues to deal with non-compliance exist and 5 4 3 obtain timely and fair decisions. All contracts involving public land are accessible, as they are laid before parliament, debated and reflected in acts of parliament which are interpreted and disseminated by MPS. 76 | P a g e The information is also available to the public through other government institutions and agencies, such as the Office of the Administrator and Registrar General, which records and stores all transactions dealing with land as well as the registration of businesses. The storage of hard copies of the information exposes them to the risk of damage and loss. Quite recently however, the agency is making effort to digitize the information. The spatial information seems not to be used to minimize overlap with other forms of land uses. The panel members observed that some spatial information documented in the agreement is inconsistent with records on the ground. Both the state lands act and EPA make provision for safeguards to ensure environmental sustainability. The State Lands Act No.19 of 1960 and the Public Lands Act, Cap 116 of the Laws of Sierra Leone 1960 makes provision for this. It states “In every agricultural lease under this Act, there shall by virtue of this Act be implied by the lessee a covenant that he will improve and develop the natural resources of the land in a prudent and business-like manner and will abstain from the undue destruction or exhaustion of any timber, trees or Plants for the sale or cultivation of which the land is leased.” It is the Environmental Protection Agency's responsibility to address ecological and environmental goals in Sierra Leone. EPA requires all large-scale investments with strong potential to degrade the environment to undertake an environmental and social impact assessment (ESIA). Safeguards in the form of Environmental Impact Assessment and Social Impact Assessment are designed, to a large extent, in line with international best practices and are stipulated to be applied, as such. Any land leased or sold for use other than residential is subject to an EIA. However, this is not always monitored effectively, resulting in many violations. Even when the EIA Certificate is issued corrupt practices usually lead to its non- applicability. There are no easily available avenues for legitimate right holders to air complaints if investors do not meet contractual obligations. One problem is that the right holders on the ground are not usually direct parties to investor agreement, but represented through chiefs. In some instances, right holders may contract directly with investors for the use of their surface land. As it stands now, the only ones benefitting from these leaseholds are the large scale investors, while leaving the local members of the land owning families who are losing the land in the cold for both land concession and lease arrangements. Government officials, local council officials and paramount chiefs may draw some benefits too. The constitutional provisions that guarantee right holders a legitimate right to access the justice system to remedy a breach may not be accessible or dot not result in timely decisions and may also be perceived as unfair. These weak options for redress of contracts or ensure compliance may be a reason why sabotage and violence are common phenomena in cases where investments have infringed on legitimate rights and did not respect safeguards. Recommendations 77 | P a g e Mechanisms for safeguards of all forms; labour, tenure rights, resettlements, pollution etc. must be designed and effectively implemented. The safeguards should be enforceable regulations.  Land mapping should be done throughout the country and must not just be subjected to public land. This mapping should recognize land use, spatiality, other data such as demography, vulnerability to degradation, elevation, ownership etc.  This information should be made public and made easily accessible.  A compliance monitoring agency specializing in other forms of safeguards apart from the EPA that looks specifically at environmental issues should be setup to carry out annual monitoring of safeguards in collaboration with the EPA.  Effective mechanism such as a land complaints board with total independence and binding recommendations must be constituted. Its paramount role is to deal with complaints from land rights holders in a speedy way. To carry out its functions it must be made to work with relevant bodies (government, CSOs and other independent bodies set up by government). 5.6 Panel 6: Public Provision of Land Information - Registry and Cadastre MLCPE is the principal institution charged with the responsibility for the management and administration of State land, public provision of land parcel information, Surveying and Mapping of all Lands of the Republic of Sierra Leone as enshrined in the Survey Ordinance of 1950. MLCPE has four Divisions, as follow: Surveys and Lands; Country Planning; Environment and Administration. Specifically, the Surveys and Lands Division has the mandate to develop state topography to: provide cartographic and topographic data, implement a standardized national coordinate system, survey of all lands (including urban, sub-urban, and rural territories), demarcate private and state land boundaries, conduct a comprehensive registration of land titles, and compile and maintain a comprehensive record of lands in the country. The Division of surveys and lands is also responsible to map and provide relevant statistic on total land parcel mapped and unmapped nationwide. A comprehensive land information system will adequately provide basic relevant statistics on mapped and unmapped land country wide, however, such activities could not been undertaken by MLCPE due to inadequate capacity. Against this backdrop, the Government of Sierra Leone through the MLCPE initiated the Land Documentation Project and Land Registration Project in 2009 and 2010 respectively. The Land Documentation Project aimed at digitising or computerising existing paper land documents and establishing a database of these at MLCPE. It started digitising Offer Letters, Conveyances and Survey Plans and storing these on disk. The Land Registration Project was to streamline the land delivery process by automating the work flow process and institutes a GIS platform that stores and analyse GPS data and produces corresponding survey plans automatically; a GIS database at the MLCPE to interface with the Electronic Database created at OARG in order to automate and ease the land administration process through computerised documentation and processing. However, both projects have not been sustainably maintained, and MLCPE has not realised the benefits that were envisioned from them. The OARG is still responsible for registering land instruments (Survey plans and conveyances) as established by the General Registration Act of 1960 (Cap 256). Registration of instrument by OARG can be traced as far back to the colonial period. The first instrument registered in Sierra Leone was done on the 22nd January 1845. The OARG has registered a total of thirty-eight 78 | P a g e thousand, three hundred and thirty three land instruments nationwide since it commenced operation to date. This number include as follows: Conveyances; Mortgages; Freehold Agreement; Leasehold Agreement; Statutory Conveyances; Statutory Declaration; Tenancy Agreement; Contract Agreement; General Agreement; Powers of Attorney ( Executed in Sierra Leone) and Powers of Attorney ( Executed Overseas). The main link between the MLCPE and OARG is survey plans prepared by the MLCPE and sent to OARG for registration. There has been an attempt to automate the link between OARG and MLCPE in the transfer of land documents through the implementation of the Land Registration Project at MLCPE and the Electronic Documentation of Land Records Project at OARG. The Land Registration Project at MLCPE is in progress but has been constrained by the lack of sustainability of funding from donors. Law Reforms Department is still responsible for settling land disputes involving ownership. The Ordnance Survey did not mandate the MLCPE to verify ownership of land; rather the responsibility of the Surveys and Lands Division at MLCPE is restricted to verifying the accuracy of surveying computations submitted by Licensed Surveyors for private land and by Government Surveyors for State Lands. Although the Law Reforms Department will in most cases consult with the Surveys and Lands Department in settling land conflicts, the implication and perhaps the root of most these conflicts about duplication of land sales is that those who are responsible for demarcating and measuring the land cannot verify who owns it. 5.6.1 Mechanisms for Recognition of Rights LGI 1: Mechanisms for Recognition of Rights Dim LGI # Indicator Land possession by the poor can be formalized 6 1 1 in line with local norms in an efficient and transparent process. Non-documentary evidence is effectively used 6 1 2 to help establish rights. Long-term unchallenged possession is 6 1 3 formally recognized. First-time recording of rights on demand 6 1 4 includes proper safeguards and access is not restricted by high fees. First-time registration does not entail 6 1 5 significant informal fees. In the Western Area a poor person in possession of land can claim legal rights in line with local norms, through the provision the Statute of Limitation. This Statute provides land rights to the claimant after a 12-year period of non-counter claim. In the provinces, the family cannot be disposed of its land by a settler occupying a piece of land for a period immemorial, unless the settler can prove that he has not paid over the same 79 | P a g e immemorial period, the traditional crop tributes, from the land in question, to his counter claimants. Non-documentary evidence is effectively used to help establish rights in the provinces. The formal recognition of the the customary land tenure system in the provinces where interests in the land are not registered, non-documentary forms of evidence would allow full recognition of claims to property in the absence of other forms of evidences. Long-term unchallenged possession is formally recognized via the Limitation Act 1961 and the Statutory Declaration 1835, but this applies mostly to private land. In this regard, the squatter must prove that there has been a period of adverse possession of at least twelve or at most between 30 and 40 years. In effect a possessory title is converted into instrument by declaring under the provision of the Statutory Declaration Act 1835. The Declarant would declare that he had been in possession of the particular land for years either by himself or through his predecessor in title which is supported by two witnesses. A survey plan is prepared for the said land and attached to the instrument or document. The declaration is made on oath and registered under the provision of Instrument Act cap 256. On demand recording of rights is possible in Sierra Leone but does not include proper safeguards to prevent abuse. List of the actions or documentation required and associated costs for formal registration: 1. Site Survey Plan signed by DSL - Le 2000 (USD4.00) for less than 1 acre; Le 4000 (USD 8.00)/Acre 2. Deed of Agreement prepared by a lawyer – 10% of the value of a 2 town lot36 3. Administrative Activity Cost - Le 100, 000 (USD20) 4. Judicial Costs / Taxes Incurred - 0.1% (stamp duty) cost of land The costs are exceeding 5% of the property volume and the major factor that has an impact on the time and cost of first time registration is the lack of adequate capacity and logistics within the MLCPE to conducted land parcel survey and prepare site cadastre maps/survey plan required for the lease document to enhance registration at the OARG. Especially for commercial and institutional leases these tasks take a long time to be accomplished. The maps ( Cadastral plans) covering the Western Area and country wide are out-dated and not computerized coupled with limitations in the required resources of personnel and logistics. As a result of these limitations, officers assigned to carry out field surveys exercises hence would have to take money from client outside the official arrangement. Additionally, the approval process also takes time due to the fact that all the approving authorities (Hon. Minister, PS, DSL etc.) are most of the time busy with urgent state matters. Although first time registration does not entail significant informal fees, it is worth stating that concerns about informal fees for conducting survey, registration of land interest have been raised by the general public against MLCPE officers. Such concerns need to be verified by the Ministry in order to effect appropriate necessary action. 36 11 town lots = 1 Acre (or 0.40 Hectares) 80 | P a g e Recommendations  Formulate institutional procedures to guide the implementation process for formal recognition of possession in an effective, consistent and transparent manner.  Review and upgrade relevant legislation bothering on process for formal recognition of possession and should include both state and private lands.  Upgrade legislation on the cost of processing survey plans at MLCPE  Enact legislation to control fees of private surveyor and lawyers  Update cadastre maps for western utilizing GIS/GPS techniques in conjunction with satellite imagery technology. This should be extended to other areas within the country.  Strengthen institutional capacity through staff recruitment. People who can be trained easily should be recruited while attention is given to upgrading the skills of existing staff.  Service Delivery Charter indicating service provided and their corresponding fees and time frame should be published by MLCPE and OARG. 81 | P a g e Table 5: Costs related to recording of Property List the procedures or documentation required for Transfer Related Costs registering a property transfer for property valued [cost or % of value] at [2 town lots] 1. Site Survey plan prepared by Private Licensed Le 750, 000/town lot (USD 150) Survey 1. Site Survey plan signed by DSL Le 2000 (USD4.00)for less than 1 acre Le 4000 (USD 8.00)/Acre 2. Deed of Agreement prepared by Lawyer 10% the value of a town lot 5.6.2 Completeness of Land Registry LGI 2: Completeness of the Land Registry Dim LGI # INDICATORS 6 2 1 Total cost of recording a property transfer is low. Information held in records is linked to maps 6 2 2 that reflect current reality. 6 2 3 All relevant private encumbrances are recorded. All relevant public restrictions or charges are 6 2 4 recorded. There is a timely response to requests for 6 2 5 accessing registry records. 6 2 6 The registry is searchable. 6 2 7 Land information records are easily accessed. The recording of property transfer is the responsibility of OARG, which is the land registry of depository, where documents including instruments are deposited to inform the general public that, for example, a transaction has taken place between parties concerned. It does not guarantee ownership. The recording of property transfers is guided by the Registration of Instruments Act Cap 256 and fees are as per Service Charter, which is displayed for public attention. The registration process in the OARG simple and straight forward, yet informal payments may be incurred before final registration due to the pre – registration bottleneck tax clearances. The total formal cost of a recording property transfer is shown in Table 5. However, due to high level of taxes, property owners in most case do not declare the true value of the properties. OARG depends on the cadastre information from MLCPE of all survey plans signed (copy of plan attached to the document to be registered) and sent weekly (“weekly returns”) in order to effect registration of properties. But in most cases properties are registered without the weekly returns which may be attributed to delay in sending the said returns or property interested in by the OARG executive(s). Information held in records is also not linked well to maps that reflect current reality and it is estimated that less than 50% of records for privately held land recorded in the registry are readily identifiable in maps. Most importantly due to the fact that the maps (cadastral plans/maps) are 82 | P a g e out-dated, such maps cannot reflect the current reality on the ground, hence map revision is necessary and very urgent. The revision of maps country – wide but starting with the Western Area is important and urgent due to the fact the pace of physical development in the field is just too fast. Relevant private encumbrances are recorded but this is not done in a consistent and reliable manner. Private encumbrances such as easements, mortgages, and restrictive covenants can be found in the conveyance register, but are not registered or recorded in the charges register, as in the case of Title Registration – the land registry. It is worth noting that cross referencing in conveyances for private encumbrances can be a problem, which is why there are incidents where a mortgage or easement may not show against a property in the OARG. Relevant public restrictions or charges are recorded, but this is also not done in a consistent and reliable manner. As with private encumbrances, public restriction or charges forms the body of Government Documents or leases registered at OARG, but not recorded in the charges Register as in the case of Title Registration and the Land Registry. However, public restrictions or charges are covered by statutes such as State Land Act No. 19 of 1960 (re – entry of lease lands, public Lands Act cap. 116 (Compulsory Acquisition of Land) to name but a few. There is a timely response to requests for accessing registry records. Copies and extracts of documents recording rights in property can generally be obtained within a day of the request. Once request has been made and the prescribed fees paid, an extract or copy of any entry in the register or ledger kept in the OARG can be obtained as a Certified True copy of the original. The process of obtaining copies and extract of documents, recording right in property, has been improved through the development and deployment of VPN link between MLCPE and OARG, and the digitization into electronic format of all hard copies document recording right in property at OARG. The link ensures survey plans prepared at MLCPE (“weekly returns”) are provided to the OARG in good time and land records digitization provide OARG the opportunity to search registry records in a rapid and flexible manner. These are being achieved through the implementation of the Land Registration Project at MLCPE and the Electronic Documentation of Land Records Project at OARG. Obtaining processed survey plans from MLCPE can take days. This is as result of the manual filing system still practiced there. It is very common for survey plans to get missing at MLCPE. The registry is searchable and the records in the registry can be searched by both right holder name and parcel, which is represented by serial number, page volume and year of registration on one hand. On the other, in each document registered, there is a signed survey plan by the Director of Surveys and Lands at the MLCPE bearing the name of the property owner with identification number, referred to as LS number which is done serially to avoid duplication and enhances the searching process. Computerization of Land records at OARG has made it flexible to search the registry and has reduced the searching time. Several search requests can be completed in a day. Land information records are easily accessed because copies of extracts of documents recording rights in property can be obtained by anyone who pays the necessary formal fee at the OARG. In the case of the MLCPE, the service is free to obtain information in respect of recorded land owners. This is easily achieved by the LS number records for private land and LOA, LOB, LOC etc. records 83 | P a g e for state owned land leases and freeholds. However, the records are not normally accessed within a short time. Recommendations  Upgrade legislation on the cost of processing survey plans at MLCPE  Enact legislation to control fees of private surveyor and lawyers  Update cadastre maps for western utilizing GIS/GPS techniques in conjunction with satellite imagery technology. This should be extended to other areas within the country.  Develop and deploy a GIS based National Land Information System Database at MLCP. The NLISD at MLCPE should be deployed to other MDAs and its regional offices through a WAN. This technology will allow the cadastre databases at the regions to be updated concurrently and reflected into the central cadastre database created at MLCPE headquarters.  Legislation on recording of private encumbrances should be reviewed and upgraded to catch with the current economic demand.  Introduce a robust mechanism for recording private encumbrances in a consistent and reliable way.  Review and update outdated existing legislation on public restrictions or charges  A robust and modern land delivery process is required at MLCPE. Digitize and automate land administration and management at MLCPE to include an electronic database of all processed cadastre maps. There should be electronics backups and disaster recovery plan for the database.  The Land Documentation Project at OARG be reviewed and extended  The Land Registration Project at MLCPE be reviewed and extended.  Extension of Land Registration Project to regional offices requiring that they are equipped with the necessary staffs and equipment. 5.6.3 Reliability of Registry Record LGI 3: Reliability of Registry Information Dim LGI # Information in public registries is synchronized 6 3 1 to ensure integrity of rights and reduce transaction cost. Registry information is up-to-date and reflects 6 3 2 reality on the ground The foundation of a prudent and judicious land administration and management is an effective land information system, which is lacking in Sierra Leone. The current situation is dismally unhelpful, with existing land records not properly maintained and almost inaccessible by the public. There is lack of public trust in authorities responsible for land administration and management. Many land transaction records are believed to be either manipulated or technically inaccurate, and therefore duplicitous. 84 | P a g e Records are paper based and not digitized. The capacity of the administrators to carry on their designated functions such as demarcations, surveys and registration of land transfers will not improve and they cannot cope with the growing demand for land administration services in the wake of rapid urbanization and huge demand for land for monoculture plantation agricultural investments Information in the OARG public registries is synchronized with the MLCPE cadaster record to ensure integrity of rights and reduce transaction cost and has been established through a VPN link to improve on land management services. The link is however less effective due to delay on the side of MLPCE to timely deposit cadastre records for the information of the OARG. Effective implementation of the VPN links and checks are insufficient to eliminate a significant number of potentially fraudulent transactions in the entire system. Also, coordination between MLCP, OARG and relevant stakeholders in management of land information system is very weak and non- existence in some cases. In this regard, checks are insufficient to eliminate the potential fraudulent land deals which are a serious security threat to the country. Table 6: Process of Registering Property Agency Type of data Frequency System for synchronization Tax records NRA Receipt of Weekly Delivery of hardcopy to payment/weekly head quarter returns Cadastre MLCPE Signed Site Survey Weekly VPN Link with OARG plan/weekly returns Delivery of hardcopy to OARG Registry OARG Deed of Agreement NA NA Registry/Cadastre information is not reliable, given that less than 50% of the ownership information in the registry/cadastre is correct. This is partially due to incorrect land parcels survey, with land parcel coordinates not corresponding to reality on the ground, as a result of inadequate trained and qualified personnel, out dated maps, and lack of equipment. Normally, if MLCPE cannot update the cadastre system for the signed survey plans, which are attached to each document for registration to reflect ground reality, then OARG will have no update registry records. However, this is hardly done. The inadequate staffing level situation is such that, though there are several vacant positions at the Surveys and Lands and the Country Planning Division, they have not been filled due to availability of suitably trained and qualified candidates. The Divisions had made efforts to recruit staff through the Public Service Commission, but this has been hampered by the availability of suitable candidates. The small group of professional staffs currently in post have not been able to effectively handle the work load, and as result, there has always been a huge back log of work in the various units at the Division. Surveying practices are therefore limited to very few personnel in Sierra Leone37 . 37 In 2009: The Surveys and Lands Division had twenty-one (21) active Sub –Professional Government surveyors and only three (3) professional surveyors (Farmer, 2009) and twelve (12) Licensed Surveyors (Lusanie, 2009) in private practice in the entire country. 85 | P a g e The non-functioning state of the former Surveying Training School 38 has further exacerbated the problem the lack of trained and qualified surveyors in the country, thereby necessitating a situation that allows inadequately trained surveyors to assume responsibilities for surveying practices and field data collection, with risk of errors. Lack of reliable trigonometric reference points known as Ground Control Points (GCPs) over the past decades have resulted to the generation of incorrect land property coordinates and hence incorrect survey plans in Western Area and the provinces. This has thus seen an increase in the number of land-related conflicts and litigation among residents in Freetown and the provinces. A gap therefore exists between current surveying practices in Sierra Leone and modern electronic mapping and surveying algorithm. The professional survey practice in Sierra Leone has dramatically deteriorated over the years due to the out-dated Survey ordinance, obsolete surveying methodology currently practiced, out-dated equipment. Property survey in Sierra Leone is determined by compass bearings and tape measurement, which have high potentials for erroneous results if not done with precision. Caught in the middle of all of these is that the Survey Ordinance actually requires “Theodolite and Steel Band Survey” in all property measurements. These two dimensions are actually old, out-dated and very impractical taking into consideration the modern trend in surveying practices. Recommendations  An effective land information system requires an expedient land administration and management by replacing the existing manual recording system with digital / computerized systems. The current situation therefore establishes the need for a complete overhaul of the land administration / management information system.  Revival of the Sierra Leone National Survey Training School increase the number of qualified surveyors and certify their level of competence and ensure standards in their professional practice through the introduction and use of modern surveying and mapping techniques39  Review and modernisation of the survey ordinance  Develop and deploy a GIS based National Land Information System Database at MLCP. The NLISD at MLCPE should be deployed to other MDAs and its regional offices through a WAN. This technology will allow the cadastre databases at the regions to be updated concurrently and reflected into the central cadastre database created at MLCPE headquarters.  MLCPE and OARG to develop and publish their service delivery charter. The service charters should indicate the cost for all service and time frame of each service at any level.  In terms of refreshing synergies between the different Divisions of MLCPE, and between MLCPE and other relevant MDAs, it is recommended that regular workshops be organized at the MLCPE to create opportunities for staffs to meet regularly and exchange ideas, discuss difficulties they encounter in executing their respective functions, highlight areas of overlap of 38 The Surveying Training School was established in 1925 used to have an international recognition and reputation for high standards of training in Land Surveying, Mathematics, field practice, Land Law and Management, Draughtsmanship and Map Revision, when it was fully functional, and was actually approved for the professional examination of the Royal Institution of Chartered Surveyors. The school was closed in 1999. 39 (discussion with UNDP to support the re-establishment of the School under the new name of the National School of Surveying and Land Management with affiliation to Njala University (NSSLM-NU). 86 | P a g e duties, and decipher the draft National Land Policy (2015) for their full understanding and compliance to its provisions. Similar workshops should be organized for the MLCPE and the other MDAs.  MLCPE should undertake project to upgrade its cadastre maps and automate its operations to reflect the current realities. OARG should undertake similar project to update its information base.  Resources must be allocated for the continuous updating of the registry/cadastre information.  Upgrading the human resource capacity through in house and external training programs is a priority. 5.6.4 Cost - Effective and Sustainability of Land Administration Services LGI 4: Cost-effectiveness and Sustainability of Land Administration Services Dim LGI # INDICATOR The registry is financially sustainable through 6 4 1 fee collection to finance its operations. Investment in land administration is sufficient to 6 4 2 cope with demand for high quality services. The cadaster is not financially sustainable through fee collection to finance its operations. 17,111,001,987 3,422,200.40 In terms of revenue collection, the Ministry has excelled over the years in the area of revenue collection. The Ministry collected the sum of Le 17,111,001,987 (Seventeen billion, one hundred and eleven million, one thousand, nine hundred and eighty seven Leones) or approximately US$3.4 million, as revenue between 2011and 2014. In spite of this, the MLCPE is poorly resourced, as these monies are paid into the Consolidated Fund, from which Government then allocates to all MDAs. Total fees collected by the registry are less than 50% of the total registry operating cost. Due to the high level of taxes, property owners in most case do not declare the true value of the properties. This coupled with the fact that significant percentage of the cost of land transaction ( over 80%) is paid to the private surveyors for land parcel survey and lawyers for property registration makes the revenues from registration fees and stamp duties insignificant for the government. The registry and the cadaster are therefore not financially sustainable through fee collection to finance its operations. The revenue generated by MLCPE is deposited into the consolidated fund every month. MLCPE budgeted in 2014 a total of six billion, two hundred and sixty-six million, eight hundred and fifty- seven thousand, nine hundred and five Leones for it operations and programmes nationwide. Only two billion, four hundred and sixty-nine million Leones was however allocated to MLCPE in 2014 fiscal, leaving the MLCPE with funding gap to implement it programmes and activities. This situation is similar to what obtains at the OARG. Budget figures could not be presented for the 87 | P a g e registry as a result of difficulties in accessing budgetary data. Another problem often encountered with this process is the late disbursement of financial allocations to the Ministry. It can be concluded that investment in land administration is not sufficient to cope with demand and provide high quality services. There is very insignificant investment in capital in the system. In the case of OARG, there is some investment as their operations are being computerised. MLCPE is underfunded with little or no investment in capacity surveying, mapping and capacity building (Surveys and Land Training School). The Division lacks trained and qualified staff, especially the senior cadre, survey equipment, and means of transport etc. There are no resources to update the Cadastre maps at MLCPE even although these no longer provide accurate topographic information. The National Surveys and Lands Training school responsible for training of surveyors nationwide has been non-functional since 1999 to present resulting in untrained surveyors to carry out survey practice. Challenges facing MLPCE can be put into two broad categories 1) the public interest and need for land, and the duties and responsibilities of the Ministry with regard to addressing these needs and 2) the capacity of the said Ministry to meet the public needs and interests, and to discharge its responsibilities. The prerequisite for strong, client centered and reliable land management system are legislation to support modern best practices, an effective and efficient computer platform that facilitates online business transaction and access and, up to date business practices that is client centered and designed to make best use of system and platform. MLCPE has none of these features. Land related legislations are outdated. Limited staff strength and competence undermine the ability of MLCPE to carry out its responsibilities adequately. Training needs of MLCPE are huge and would take several months to accomplish. The small group of professional staffs currently in post have not been able to effectively handle the work load, and as result, there has always been a huge back log of work in the various units at the Division. Recommendations  The OARG should be transformed into an autonomous Agency. This will enable the OARG to utilize part of the resources generated to build its staff capacity and improve on service delivery.  In order to deal with the diverse issues raised by the present complex institutional framework, it is recommended that MLCPE set up a National Land Commission. It is of the opinion that the National Land Commission will retain part of the revenue generated and reinvest it.  Funds should be provided to MLCPE to revive the Surveys and Lands training school and update the outdated cadastre indexed map sheets.  MLCPE should fill existing vacancy. Retention of competent and qualified staff is always a crucial issue in a working environment where conditions of employment are not very attractive as in the Government departments of Sierra Leone, with MLCPE being of no exception. It is therefore recommended that in filling the existing vacancies with qualified 88 | P a g e personnel, it should be considered to have them recruited preferably by the proposed Land Commission and under a relatively more attractive scheme of conditions of employment.  Build staff capacity at MLCPE and OARG. 5.6.5 Transparency of Fees LGI 5: Fees are Determined Transparently Dim LGI # INDICATOR Fees have a clear rationale, their schedule is 6 5 1 public, and all payments are accounted for. 6 5 2 Informal payments are discouraged. Service standards are published and regularly 6 5 3 monitored. A clear, rationale schedule of fees for different services is publicly accessible and receipts are issued for all transactions. Nevertheless, the Ministry is using its old schedule of fees to collect all formal fees through the NRA and receipted. The list of all payment is compiled by MLCPE Rent’s Collection office to effect checks and balances with the NRA office attached to the Ministry in respect of monies paid into the consolidated fund by NRA. These fees include all state land lease, freehold and rents. In the case of OARG, all fees (formal) are collected as per Service Charter and receipted. Mechanisms to detect and deal with illegal staff behavior run across the board in all MDAs. However, much has not been done to control illegal staff behavior. The MLCPE has, over the past years, established an Internal Audit Unit to support the campaign against illegal staff behavior. It is along similar lines that in 2014 the Sierra Leone Anti-Corruption Commission established integrity committees across all MDAs. All these measures help to discourage informal payments. However, these efforts have yielded very minimal dividend. Most of the culprits are hardly brought to book due to political interventions. The low level of Government salaries has been cited in many quarters as contributing factor to illegal staff behavior. However, a huge awareness campaign of service users to know their rights and applicable procedures is vital To reduce transaction cost and unnecessary burden on the general public, it mandatory on all MDAs to publish Service Charters displaying the services and their corresponding costs. There are a number of published service standards. However, effort by the registry to actively monitor its performance against these standards is minimal. Some of the Published service stand in Sierra Leone include: (i) the Civil Service Code; (ii) the General Service Order; and , (iii) Letter of Appointment of Civil Servants. MLCPE in 2014 started working on developing a service delivery charter, but which is yet to become operational. A draft Service Charter document has been achieved, the Ministry is now working on finalizing the draft document through a consultative meeting involving all relevant MDAs and the private sector. This process is anticipated to be completed in 2015. The Service Charter will publicly display land management and administration services and their corresponding cost. To conclude, the land sector attracts a good number of players and all trying to earn a living in the system. Such players, apart from lawyers and Licensed Surveyors, include Land Agents, 89 | P a g e unqualified surveyors, MLCPE officers and host of other personalities. As a result, standards have dropped, customer satisfaction remains a big challenge and illegal behaviors of staff and non-staff are in the increase. Therefore, in the absence of standards, strict procedures and processes to enhance efficient customer service, informality and illegal behavior of players in the land sector will grow beyond control. Recommendations  It is mandatory on all MDAs to produce and publicly display service delivery charter. It is therefore recommended that service delivery charter for all MDAs should be published on the web for greater circulation.  Relevant legislation is upgraded to provide for the publication of all service delivery fees in other media that are widely available.  It is recommended that a complaint unit be set up and a help line established for the public to file in their complaint against corruption and other forms misconducts.  An active campaign should be designed and launched against corruption in the land sector.  It is recommended that an M & E unit be set up at OARG and MLCPE. The M&E unit will have the responsibility to gauge customer satisfaction, monitor day to day operations and provide support to the Sierra Leone Anti-Corruption Commission.  Civil service code and the Sierra Leone General Order be upgraded and regularly monitored to ensure adherence to the enshrined provisions by staff. 5.7 Panel 7: Property/Land Valuation and Taxation Before 2004 when the decentralization programme was established, property taxation40 was only limited to the Freetown City Council and the four Town Councils of Bo, Makeni, Kenema and Koidu New Sembehun, as per Cap 295 of the Townships Act. The decentralization programme which was established in 2004 created 19 local councils through an Act of Parliament called the Local Government Act of 2004 (LGA2004), and also transformed the Town Councils into City Councils, taking the total of city councils to five. The remaining councils included thirteen district councils and one municipal council (Bonthe Municipal Council). One of the main objectives of decentralization is to empower local authorities to take responsibility of their development. This required that local councils should generate local revenues so that they can be able to provide local public goods and services. The LGA2004 identified broad range of local revenues, including property tax, which should be collected by the local councils. The revenue provisions of the Act covered all local councils – City, Municipal and District councils, thus paving the way for all 19 local councils to collect property taxes. The district councils were new to collecting property taxes and therefore lacked the necessary capacity and human resources to do so, but have received support to carry out this mandate effectively (see assessment). The LGA2004 provides the legal basis for the taxation and valuation of properties. Part VIII of the Act covers valuation, collection, institutional set-up and penalties relating to property taxes. The 40 Property tax was and is also referred to as city rate or town rate 90 | P a g e LGA2004 repealed all other laws41 relating to the administration of local councils, including the imposition and collection of property taxes. According to the LGA2004, the tax base for property taxes is the Assessed Annual Value (AAV) of buildings only. This excludes taxing of land. The two major land legislations, the Concessions Act of 1931, Cap 121 and the Provinces Land Act of 1961, did not have any provision for the taxation of land. As such, land with no structural improvement on it is not taxed in Sierra Leone. However, there are taxes and fees and charges relating to the acquisition of land. The taxes and/or fees and charges to be paid will depend on the type of acquisition. Section 57 through to Section 61 of the Income Tax Act of 2000, which deals with Gains and Losses on Disposal of Assets, describe in details when taxes will be levied, and when ownership of an asset including a given piece of land, changes hands. In addition to those taxes set out in the Income Tax Act, Conveyance registration fees of 10% of the value of the land will have to be paid at the Registrar General’s Office (see also the previous section on transactions). The role of central government agencies, such as the Ministry responsible for local government and the ministry responsible for finance, were limited to providing regulations and guidelines to standardize property taxation and valuation across the country. Local councils are empowered to determine the rate that they will apply to the AAV in order to arrive at the taxable amount. The LGA2004 also makes provision of the institutional arrangement regarding property taxation and valuation. The Act is clear that local councils (District, City and Municipal) are to collect property taxes as one of their own revenue sources. The Act requires local councils to appoint valuers who are to be responsible for the assessment and valuation of buildings for the purpose of taxation. Local councils are also to appoint Assessment Committees to oversee and approve the valuation rolls prepared by the valuers. The Act does not define the minimum qualification of valuers and there is no statutory or professional valuation body or institute that set standards and regulate the activities of valuers. As such, most local councils had people working as valuers who did not have any academic or professional training on valuation. Unlike the repealed Freetown Municipal Act of 1973, which defined the AAV as the amount at which a premise can reasonably be let out in the open market over a period of time usually a year, the LGA2004 did not define the AAV. This led to local councils adopting different approaches to arriving at the AAV. Some local councils used area (square meter) occupied by the building, while others used number of bedrooms to arrive at the AAV. With the intervention of the development partners (mainly World Bank and UNDP) and, technical support by the LGFD, the situation is now being standardized across the country, with area occupied by a building being the acceptable standard, as it is considered to be more equitable in arriving at the AAV than number of bedrooms of a building. The same automated system is provided to all local councils and they are being encouraged to use an area based system with adjustment factors. 41 The LGA2004 repealed: Cap 63 Parts III and IV of the Local Tax Act; Cap 75 The Rural Areas Act; Cap 76 The Sherbro Urban District Council Act; Cap 79 The District Councils Act; Cap 80 The Bo Town Council Act; Cap 295 The Townships Act; City Council of Freetown (Validation and Confirmation of Acts) Act, 1960; Local Authorities (Audit) Act, 1964; Local Authorities (Miscellaneous Provisions) Act, 1965; Local Authorities (Warrants for Rates) Act, 1966; Freetown Municipality Act, 1973. 91 | P a g e The issue of enforcement and penalties are also provided for in the law to enable local councils to be able to impose and collect property taxes. Sections 78 through to 80 of the LGA2004 provide the legal basis to ensure that local councils are able to collect taxes from all assessed property. The provisions include seeking legal redress in the court of law for the sale of a property, where the owner fails to pay the property tax levied. The district councils are new to collecting property taxes (since 2004 only) and therefore lacked the necessary capacity and human resources to do so. District councils were not able to collect revenues from property taxes in 2004 and 2005, as they did not have any data base on properties within their jurisdictions and did not have officers to assess properties and do the collection. The government and its development partners were therefore concerned about the sustainability of the decentralization, if the local councils cannot generate adequate own revenues, and they therefore decided to support the local councils in revenue capacity building, with particular attention to key revenue sources including property taxes. They therefore hired a consultant 42 to do an assessment of the revenue potential and capacity of local councils, which revealed that the local councils have potential to generate own revenues, but that they lack capacity to do so. One of the critical issues identified was the lack of a database on own revenue sources, including property tax. As a first step creating an efficient property tax system, the government and development partners, mainly the World Bank and UNDP, supported selected local councils to develop their property cadastre as a pilot phase from 2006 to 200843. The support included data collection on properties, developing automated systems44 and building capacity of valuation officers. The support led to an increase in the number of properties in the valuation rolls in the local councils as new properties were discovered and revenue generated from property taxes increased substantially across some of the supported local councils. For instance in Kenema City Council, revenue from property taxes increased by 90% in 2010 over the 2009 level. However, due to the weak capacity in the local councils and the resistance to change, not all the local councils are fully utilizing the automated systems installed and they have not been able to update their valuation rolls. The city councils were able to collect some revenues from property taxes using their outdated valuation rolls, which before the intervention of the central government and development partners had not been updated for over a decade. The city councils that were already used to collecting property taxes have some staff and infrastructure to collect taxes, but were also plagued with numerous problems, such as low morale of staff to collect taxes and enforce the laws. Freetown 42 The Government of Sierra Leone, under the World Bank Funded Institutional Reform and Capacity Building Project, contracted Gordon Muswygie (a former CEO of Kampala City Council, Uganda) to assist. 43 The World Bank funded the exercise in Freetown, Bo and Koidu New Sembehun City councils; while UNDP funded Kenema City and Kenema District councils. Makeni City council was initially funded by ENCISSS and later the World Bank as part of an initiative by the Local Government Finance Department (LGFD) to standardize the property tax system across the country. The outcome of the pilot in the selected local councils highlighted above, encouraged the UNDP to support similar exercise in Tonkolili and Moyamba district councils; IFAD supported the initiative in Koinadugu and Kailahun District Councils; the EU supported the Bo district council; and the World Bank supported the same initiative in Port Loko district council. 44 The automated system is property cadastre software that hosts the records of all properties, generate property tax for each property based on set parameters, and print out demand notices. 92 | P a g e City Council did receive support to upgrade but failed to use the collected data and did not fully embrace the automated system, as valuation officers saw the transparent nature of the system as a threat to their subjective powers to impose taxes arbitrarily based on their personal interests. Without the automated system, valuation officers determine the Assessed Annual Values of properties and also impose tax on them. This function is separated in the automated system with various levels of administrative rights. The district councils have additional problems and had to contest with chiefdom authorities, as to whether they can impose property tax in rural areas and if they could do so, who should collect the taxes. This eventually led to a negotiated settlement where district councils are sharing the revenues collected from property taxes with chiefdom authorities. 5.7.1 Transparency of valuations: valuations for tax purposes are based on clear principles, applied uniformly, updated regularly, and publicly accessible Transparency in Valuation Process LGI Dim # Indicator A B C D 7.1 1 There is a clear process of property valuation 7.1 2 Valuation rolls are publicly accessible. There is no clear process of property valuation. The LGA 2004 stated that property tax shall be levied on the Assessed Annual Value (AAV) of all buildings in a locality, but falls short of defining what the AAV is or how to determine it. This has created a situation where the AAV is open to several interpretations and the various local councils who are in charge of property tax, until recently45, used different methodologies to arrive at the AAV. Equally, the State Lands act indicates that market value should be paid in case of compulsory acquisition, but the methodology is not defined. In Sierra Leone, ‘property’, as defined in Section 69(1) and Section 70 of the LGA2004, refers to buildings, whether complete or incomplete, and inhabited or uninhabited. This definition of property in the Act does not include land. Thus property valuation does not take into account the value of the land, but rather only the improvements thereon. The Act stated that property tax shall be levied on the Assessed Annual Value (AAV) of all buildings in a locality, but falls short of defining what the AAV is or how to determine it. This has created a situation where the AAV is open to several interpretations and the various local councils who are in charge of property tax, until recently46, used different methodologies to arrive at the AAV. Also important to note is that fact that there is no clear mention or reference to market values in the current Act (LGA2004). Therefore the AAV is the base on which the rate is imposed. 45 The Local Government Finance Department (LGFD) in the Ministry of Finance and economic Development, which is responsible to build capacity of local councils and monitor their performance in own revenue mobilization, has, with support from the world Bank and UNDP, supported the local councils to use similar methodology in arriving at the AAV, albeit minor differences in adjustment factors. 46 The Local Government Finance Department (LGFD) in the Ministry of Finance and economic Development, which is responsible to build capacity of local councils and monitor their performance in own revenue mobilization, has, with support from the world Bank and UNDP, supported the local councils to use similar methodology in arriving at the AAV, albeit minor differences in adjustment factors. 93 | P a g e The current practice of most local councils, particularly the five city councils, is to first categorize buildings based on their use/purpose and then determine the AAV of each category. A uniform rate is then applied for each category. The major classifications of buildings are: Commercial, Residential/Dwelling, and Mixed (that is buildings that are used for both commercial and dwelling purposes). However, the Commercial category does not include certain types of buildings, such as Hotels, Banks, Office Buildings, etc. Initially a flat rate which varies from one local council to another was applied to these type of buildings, but as the system has evolved, the same process of valuation for other buildings is followed but a much higher factor is applied in calculating the AAV. Once the buildings have been categorized, the process of determining the AAV starts with determining the area occupied by each building. This involves physically measuring each house to determine the square meter occupied by the structure(s) on the land. The area (square meter) is then multiplied by a factor, depending on the category of the building, to arrive at the Initial Ratable Value (IRV). The IRV is then adjusted to take into consideration certain features of the building. Adjustment Factors, such as location, type of roof, wall type-concrete/mud/board, electricity connectivity/availability in the locality, availability of pipe borne water, etc., are then applied to the IRV to arrive at the AAV. The adjustment factors to be applied vary across local councils. For example, some local councils take into account whether the house is connected to the electricity; others do not consider it as an adjustment factor. A uniform rate for each category of building is then applied to the AAV for each building to get the tax amount to be paid by owners/occupiers. The system of valuation have been automated for some of the councils using software developed by private sector firms, with support from the World Bank and UNDP47, and technical backstopping by the Local Government Finance Department (LGFD) in the Ministry of Finance and Economic Development. The software system, which was first developed in 2008, has undergone several updating as the process evolves. It is clear that failure by the LGA2004 to define what AAV has left it to open interpretations by local councils, leading to the current process or definition they have adopted. Sections 71 and 72 (1) of the LGA2004 require that each local council should appoint Valuers who will carry out the process; and they are to be supervised by an Assessment Committee to be set up by the local council. The valuation units of local councils, with the exception of the city councils, are staff with only one Valuer and two support staff. Although the Valuers are graduates/Higher National Diploma holders as per the requirements of the Local Government Service Commission, most of them (over 80%) are not qualified and trained Valuers, and they find it difficult to use the automated system efficiently and effectively. As a result, the system is not functional or fully utilized in some local councils, and Valuers have resorted to their old ways of subjective valuation, were they do not apply laid down rules and procedures48. The Assessment Committee is not fully functional in all the local councils. They do not provide the required oversight of vetting the Valuation Rolls prepared by the Valuers. The 47 World Bank supported development of the system in Koidu New Sembehun City Council, Freetown City Council, and Bo City Council. UNDP supported Kenema City Council and Makeni City Council. 48 Tommy, Adams. 2014. Property taxation in Sierra Leone: “A critical analysis of legislation versus practice”. PhD Research Proposal, University of Pretoria 94 | P a g e points allocated to Adjustment Factors in arriving at the AAV are subjective and left to the discretion of the Valuers, instead of being decided in a participatory process involving the Assessment Committee. The system is, therefore, heavily prone to abuse by Valuers in particular, who can arbitrarily decide which adjustment factors to consider for a particular building in calculating the AAV. It is not unusual, therefore, for property owners to offer bribes for undervaluation of their property. The flat rate applied to certain buildings (Banks, Hotels, etc.) makes the valuation process inequitable. Under such circumstances, it is possible that in the same locality, a small Bank building might end up paying higher property tax than a residential building, even though the residential building would have a higher market value if markets rates were applied. This would be inequitable because property tax, in theory, and to a large extent, should be taxed on the value of the property and not the purpose for which it is used. The purpose for which it is used can attract a separate set of taxes or fees and charges. The tediousness of measuring each and every building has prevented frequent assessment and reviewing of the valuation roll. As such, the AAVs of buildings on the roll are not updated and new buildings, which have not been measured, are not assessed and therefore have no AAV to levy tax rate on. In this instance, the property owner, who wants to be on the side of the law, is left with no other option, but to go to the council and insist that his property be valued so he can pay his taxes. There have been instances where property owners would make several trips to councils for them to send a Valuer, with the proviso that some money is paid upfront as ‘transportation’ for the Valuer. Such lack of professionalism does not only affect new property owners. There are cases where property that had been taxed in one year could go for two three years without getting notices. Property owners are forced to go through this exercise not necessarily from altruism, but because when such taxes accumulate over decades, they could just find themselves unable to pay; and subsequently lose their property. The process of valuation as outlined above is not known to the general public in most local councils. Particularly in councils were they do not use automated systems to print out demand notices. The public receives demand notices that only show the total value of property tax they should pay with no explanation of how it was arrived at or the breakdown of the elements that go into it. In Local Councils where they use automated systems49, the demand notices give breakdown of the adjustment factors and the points they attract. The rudimentary state of the real estate market in Sierra Leone and the lack of expert Valuers have also contributed to local councils not adopting a market-based approach to property valuation. There are very few private real estate businesses that are engaged in buying and selling land and buildings. Valuation rolls exist but are not publicly accessible. Section 72(2) of the LGA2004 states that: 49 Local councils that use automated systems include; Bo, Makeni, and Kenema City Councils. None of the district councils have started using automated systems. 95 | P a g e ‘Any person owning or in occupation of or interested in any assessable building shall be entitled to inspect the Valuation Lists or Rolls and to take copies of or extracts from them on payment of a fee to be determined by the local council’. From the above clause it would appear that the local councils are not mandated to display the valuation rolls in public places, but rather interested persons can access them on demand for a fee. However, the Act in Section 74 also, makes mention of a rate book, that local councils should make available for inspection during office hours. The valuation rolls and the rate book are slightly different in terms of the structure and the information they provide. What is however clear, is that public access to the Valuation Rolls/Rate Book is limited for two reasons: (i) the bureaucratic process that is involved to access the roll and; (ii) the fees to be paid. These are further compounded by the fact that for all the local councils, such information are centralized at the head office of the local councils posing additional cost and challenges for property owners who live far from the local council office. All of these pose a question – to what extent are the valuation rolls publicly accessible? It is not clear from the Act that local councils are mandated to make the valuation rolls publicly accessible. Instead, the public should express their interest in seeing it and pay fees before they can access it. Recommendations  Every Local council should set-up a Valuation Committee in line with the Act and should provide the committee with the necessary support to ensure that it is functional.  There should be clear guidelines on rural and urban valuations.  Local Council Valuation officers must be people with professional training in valuation  Government should ensure that trainings in valuation are introduced in Tertiary institutions with RICS accreditation  There should be legal provision that will ensure that all local councils adopt a standard approach to a valuation system that will be linked to market prices and ensure equity  There should be regulations to guide on valuation methodologies  The LGA2004 must be reviewed to ensure a clear system for public access to valuation rolls and that copies provided to the public should be on a cost recovery basis, i.e. for a minimal fee.  Local councils must be clearly mandated by the law to make the valuation rolls publicly accessible  The valuation rolls must be available at Ward/Zonal level for the respective areas to ensure easy access  Transparency on the use of land tax resources to discourage tax evasion 5.7.2 Collection efficiency: resources from land and property taxes are collected and the yield from land taxes exceeds the cost of collection Tax Collection Efficiency LGI # Indicator A B C D 96 | P a g e 7.2 1 Exemptions from property taxes are justified and transparent. 7.2 2 Property holders liable to pay property tax are listed on the tax roll. 7.2 3 Assessed property taxes are collected 7.2 4 Receipts from property taxes exceed the cost of collection. Exemptions from property taxes are justified and transparent is clear and laid out in the LGA 2004. Properties that are exempted are: buildings use for public worship; public health facilities; buildings used for charitable purposes; buildings used for public education; burial grounds; and buildings owned by diplomatic missions. The exemption list is justified but not exhaustive, as it leaves out other buildings that are similar in their use to those on the exemption list. The law does not leave room for exemptions to be granted by either the local councils or the central government for any other building except those stated in the Act. There is no evidence that arbitrary exemptions are being granted by the local councils. Not collecting tax from assessable properties, because of lack of capacity or willingness to collect taxes, does not amount to exemption. Property holders liable to pay property tax are listed on the tax roll but the Act is silent on the frequency of general assessment of all properties by the local councils. However, the law is clear that local councils should update their records annually as new buildings are constructed and existing properties are altered each year. This is important as the rate is levied on the assessed annual value. The annual update should however not replace the general assessment that will cover all properties. General assessment has not been done for all of the local councils since 2008/2009 when the World Bank and UNDP funded general assessment and the establishment of an automated property cadaster system in the selected local councils mentioned above. Since those exercises, no council has undertaken general assessment or even partial assessment to update their valuation rolls with new buildings. Of course, field workers on their routine field work will capture information on new buildings, but no concerted effort has been made by any council to undertake an assessment, whether full or partial. The rapid population growth rate in cities, particularly Bo, Kenema, Makeni and Freetown has led to massive expansion of these cities with new buildings being constructed at a pace too fast for the valuation department of these local councils to update their rolls. In the Freetown City Council (FCC) and the Western Area Rural District Council (WARDC) in particular, there are communities for which these councils have no records for the buildings erected. The LGFD, which is responsible to monitor the own revenue performance of local councils believe that FCC and WARDC do not have more than 70% of properties within their respective jurisdictions in their valuation rolls. Cities like Bo, Kenema and Makeni that are relatively smaller are estimated to have about 80% of properties within their jurisdictions in their valuation rolls. For the Five cities and WARDC combined the proportion of liable property tax holders that are on the valuation roll will not exceed 70%. 97 | P a g e Assessed Property Taxes are not fully collected from assessed properties. The local councils are finding it difficult to collect revenue, due to a combination of factors. Firstly, the valuation rolls are outdated and have not been updated for several years, and secondly, local councils themselves are not proactive enough in their assessment of properties. Some property owners run after the councils for assessment of their properties, to avoid accumulating of unpaid taxes. In the end though, the local councils will expect all back taxes to be paid, irrespective of whether it was their fault not to assess and collect on an annual basis. The local councils who are responsible to collect property taxes are finding it difficult to collect revenue, due to a combination of factors. Firstly, the outdated valuation rolls which have not been updated for several years, is a bottleneck to local councils in realizing their revenue potential from property taxes. The other barrier is the weak capacity to collect revenue for property they have on their rolls and have been assessed. The centralized payment system is not encouraging to tax payers, who are living far away from the central offices of the local councils. Tax payers are unwilling to go through the hassle of going to the local councils and deal with the bureaucratic processes to pay property taxes that they may not, in the first place, agree with, as the system of arriving at the taxes are not clear to them. The local councils should also explore the use of electronic payment systems using mobile phone technologies. They can also consider linking the payment of property tax with other utility bills payment. Table 7 shows that collection of assessed taxes has been very low for both city and district councils. The councils in the table below together account for over 80% of the total households in the country, but they can together only collect 29% of the rated values of properties in their localities, with 71% outstanding. 98 | P a g e Table 7: Proportion of assessed Property Tax not collected in 2013 for selected local councils50 Council Leones Rated Amount Proportion of tax Value Collected not collected Bo City 1,149 332 71% Kenema City 989 345 65% KNSCC 560 115 79% Makeni City 749 162 78% Freetown City Council 8,188 2,437 70% Bo District 355 52 85% Kailahun District 121 66 46% Kenema District 280 53 81% Koinadugu District 180 54 70% Kono District 187 40 79% 12,757 3,657 71% It is clear that collection of property taxes is very low across the country. Local councils lack the capacity to effectively collect the taxes. Enforcement of the law is very weak. Local councils sometimes threaten to take legal action against defaulters but it amounts to nothing. The LGA2004 empowers the local councils to ensure that taxes are collected from all rated properties, but the local councils lack the political will to do so. Enforcement has been particularly weak for large taxpayers who are politically connected51. As such, the group of property owners that would have potentially given more revenue to local councils is not paying their taxes and therefore collection has been greatly affected. The ratio of the total cost of collection to the total amount collected is one of the indicators of efficiency, as it shows whether an entity is collecting less or more than it is paying to do the collection. Receipts from property taxes exceed the cost of collection. Property Valuation Departments of local councils across the country seem to be overstaffed, as the systems are not automated. However, because these are mostly junior staff, they fall in the lower grades category of staff and their salaries are therefore small. The costs that are huge are the other administrative costs: fuel, transportation, stationery, etc. Data from Local Government Finance Department in the Ministry of Finance and Economic Development show that for 3 of the 5 city councils, the total amount of property taxes collected is more than 5 times the cost of collection, while that for the two remain city councils is between 3 and 5 times the cost of collection, as shown in Table 8. 50 Source: Local Government Finance Department (LGFD), Ministry of Finance and Economic Development (MoFED 51 Jibao, S. and Pritchard, W. 2013. “Rebuilding Local Government Finances after Conflict: The Political Economy of Property Tax Reform in Post-Conflict Sierra Leone.” Working Paper No. 12. London, UK: International Centre for Tax and Development. 99 | P a g e Table 8: Collection efficiency of selected local Councils52 Local Council Cost of collection to total revenue collected Kenema City 7% Koidu New Sembehun City Council 63% Bo City 14% Makeni City 25% Freetown City Council 4% Recommendations  Exemption to include agricultural buildings, such as rice milling and storage facilities  The law must provide for the frequency of updating of valuation rolls  Local councils must endeavor to do general assessment at most within 10 years of the previous general assessment  Review should be done at least every two in view of the speed of housing developments.  Local councils must update their maps as rapid growth and expansion have taken place in the recent past  Local councils should coordinate with MLCPE to get permits to aid effective tracking of new buildings.  Demand notices for payment of property taxes must be detailed to show the basis of the tax value  Local councils should either consider decentralizing payment systems or explore electronic payment options using mobile phone technologies in order to make it easier for the public to pay property taxes  Local councils should develop a proper collection strategy, motivate revenue collectors through an incentive scheme, and enforce the law to improve compliance,  Close monitoring of collectors  Local councils must improve collection through innovative ways, such as the use of mobile technology and thereby reduce on labour cost  Decentralize the payment collection offices to various areas within the locality  Increase public awareness. 5.8 Panel 8: Dispute Resolution The Constitution of Sierra Leone Act No. 6 of 1991 establishes the judiciary. As the third arm of government, the judiciary is responsible for the administration and dispensation of justice. Cases are heard and tried more or less exclusively by the judiciary with few exceptional ones. Parts I to VI deal entirely with the superior courts of judicature and spells out their composition and powers. Each of the superior courts of judicature namely, the High Court, the Court of Appeal and the Supreme Court are identifiable by constitutional provision and operations are guided by rules of court. Land matters, except for customary land, are usually decided at the formal court system namely the High Court. See hierarchy of courts in Table 9. 52 Source: LGFD, MoFED 100 | P a g e Table 9: Hierarchy of Courts in Sierra Leone The Supreme Court (Presided by the Chief justice, this is the highest court of appeal in the land) The Court of Appeal ( This hear only appeals from the High Court) The High Court (This has unlimited jurisdiction in matters and hears appeals from lower courts namely the Magistrate Court. This has many divisions) The Magistrate Court/Group Local Appeal Court (The Group Local Appeal court has now been abandoned but it was the equivalent of the Magistrate court at the local level) The Magistrate now sits as Chairman with assessors in case there is a matter related to customs/traditions. Local Court (The lowest court in the land but has jurisdiction over land in the provinces) Section 21 of the Courts Act 1965 states that the High Court does not have jurisdiction in regard to any action or original proceeding to determine the title to land situate in the provinces other than the tile to a leasehold interest. Also, it does not have jurisdiction over the existence or dissolution marriage governed by customary law or claims found neither on such marriage nor about the administration of the estate of deceased person where such administration is governed by customary law. The Local courts Act 1963 establishes local courts with limited jurisdiction to hear and determine civil matters relating and affecting people of their locality including the determination of the estate of the deceased, civil cases governed by customary law not related to conflict between tribal authorities or Paramount Chiefs involving questions of land. It is important to note also that the traditional leaders as custodians of the land are expected to understand the traditional matters connected to any piece or parcel of land within their locality. This is only applicable in the provinces. It is also important to highlight that lawyers do not represent clients in Local Courts. This means that a litigant who does not understand the procedure during trial will be at the mercy of the tribal authorities or chiefs. There are no set criteria but usually it is a court presided over by a single chief. Local courts are found in every Chiefdom. The Local Courts has exclusive jurisdiction in determining title to land in the provinces, marriage governed by customary law and the administration of estates governed by customary law. Local courts are not bound to make records of their rulings, which are based on tradition and customary law. However, this does not exclude jurisdiction of High Court because High Court has Conflict resolution mechanisms are accessible to the public. In 2011 all formal and traditional/Local courts have been brought under the jurisdiction of the Chief Justice. The Minister of Internal Affairs administered all these prior to these changes. The District Officer (DO)/Customary Law Officer (DO) can be found in each district and he has exercised tremendous authority especially in the settlement of disputes arising from land. He is the main government representative in the district and can hear all concerns of the residents of the particular district in which he operates for onward transmission to the relevant government 101 | P a g e department. He is advised by the Customary Law officer who is a representative of the Attorney- General and Minister of Justice, the foremost legal adviser of government. The DO hears complaints sometimes called appeals from local courts and provides advice. Although he does not sit as a court, his opinion is widely respected. In the provinces, as indeed in the Western Area, dispute settlement sometimes takes an informal route. Elderly members of the community who command popular respect would sometimes intervene to settle a dispute in the locality between or among its members. ADR can take the form within the community and even in land matters. Although such decisions are not binding they carry the weight and authority of the elderly, which are not easily challenged or ignored. It is strong mechanism for dispute resolution among particular tribes in Sierra Leone including Fullah, Limba, Yalunka and Temne notably found in the north of the country. This process hardly follows a set procedures and the diversity in culture and heritage among the different tribes makes ADR an inconsistent mode of dispute resolution without binding authority, in other words, parties to ADR other than arbitration can always bring a legal suit for the same complaint if they feel it is better settled by a formal court system. In accordance with the provisions of Chapter 98 of the Laws of Sierra Leone 1960, each of the 16 native tribes of Sierra Leone represented as living in the Western Area can appoint a Headman to hear and determine complaints among its members which touches and concerns customs and traditions of their respective members and nothing more. The exercise of any powers under this law is absolutely limited and the Headmen, even though they are regarded as important leaders of the tribes, do not have the same authority as chiefs in the provinces. Their jurisdiction is limited and do not have powers to impose a penalty, although they can resolve traditional/customary matters affecting natives living in Freetown. Their decisions are not binding. In other words, they have no proper authority. 5.8.1 Assignment of responsibility: responsibility for conflict management at different levels is clearly assigned, in line with actual practice, relevant bodies are competent in applicable legal matters, and decisions can be appealed against. LGI 1: Assignment of Responsibility Dim LGI # INDICATOR There is clear assignment of responsibility for 8 1 1 conflict resolution. Conflict resolution mechanisms are accessible to 8 1 2 the public. Mutually accepted agreements reached through 8 1 3 informal dispute resolution systems are encouraged. There is an accessible, affordable and timely 8 1 4 process for appealing disputed rulings. There is clear assignment of responsibility in terms of limitation in hierarchical jurisdictional powers for conflict resolution, in both the Western Area and the provinces. The Local Courts Act, 102 | P a g e 2011 now incorporates land disputes in its jurisdiction, but not to the expressed exclusion of parallel avenues at the local level. Conflict resolution mechanisms are accessible to the public. At every level of the judicial system, institutions are open to all nationals and businesses. In the majority of communities, institutions for addressing dispute resolution are available at the local level. Affordability at the formal/non- traditional levels, however, hinders administration of justice, and particularly for appeals. The High Court has unlimited jurisdiction to hear and determine matters of all kinds and appeals within its jurisdiction and the amendment, execution or the enforcement of any judgment or order made on any such appeal, and for the purposes of any other authority expressly or by necessary implication given to the High Court by the Constitution or any other law, the High Court has all the powers, authority and jurisdiction vested in the Court from which the appeal is brought. At every level of the judicial system, institutions are open to all nationals and businesses and accessible. Affordability at the formal/non-traditional levels hinders administration of justice. Appeal procedures are usually costly and demand the deposition of funds into court to cover the cost of appeal for the opposite party in the case where the appeal fails. In terms of first instance conflict resolution, it is noted that informal institution are more accessible. That notwithstanding, conflict resolution mechanisms are accessible to the public. Decisions made by informal or community based dispute resolution systems are recognized, because of the legal recognition of customary system. However, agreements reached amicably and equitably, without recourse to the courts, are always the preferred option. Alternative dispute resolution system is recognised by the laws of Sierra Leone. This Arbitration Act set clear rules for dispute arbitration and procedure outside the formal court system. That law gives the parties to the conflict the leverage to agree on what can be tried or decided in the case of conflict and who can decide their differences and even under which law. Arbitral awards are enforced in a similar way as courts orders once the necessary procedures are followed. Although lawyers can represent their clients in arbitral panes, court rules and procedures do not apply. There is a process for appealing dispute rulings, but the procedure is expensive. It requires the deposition of funds into court to cover the cost of appeal for the opposite party, in the case where the appeal fails. This cost, which will be deposited at the Master’s Office, is usually set at the minimum of Le 5 million (Approximately US$1,000). Such appeals usually take a long time to conclude. A litigant that is unhappy with the outcome of a case from the Magistrates court can file an appeal to the High Court. The appeal is filed with the Master and Registrar of the High Court; and the other party is notified, within the time limit provided in the rules. The Master and Registrar will set the time for hearing the appeal and put the file before a judge who listens to the legal arguments on the grounds appealed on although sometimes a retrial may be entertained. Recommendations 103 | P a g e  Restructure the administrative arm of the judiciary  Set out clearly the jurisdiction of each structure in determining title to land  Strengthen ADR system  Because of their very important role in the provinces, customary authorities should be trained in law and court procedures. 5.8.2 The share of land affected by pending conflicts is low and decreasing LGI 2: The Share of Land Affected by Pending Conflicts is Low and Decreasing Dim INDICATOR LGI # Land disputes constitute a small proportion of 8 2 1 cases in the formal legal system. Conflicts in the formal system are resolved in a 8 2 2 timely manner. There are few long-standing (> 5 years) land 8 2 3 conflicts. Increase in demand for land and the inefficacies of the land administrative system leads to increase in disputes over land in the Western Area. The insecurity in the land tenure system and ownership of land is largely due to weak and inefficient land administration by the responsible authorities. About 75% of commercial litigation cases in the High Courts are related to land matters in the Western Area, and about 50% of the adjudication cases facing the lower courts in the provinces and chiefs entail land disputes. Some of the cases are unduly taking between two and six years to resolve – in some cases even longer. As a result, the courts are having vast backlogs of outstanding legal cases relating to land issues awaiting resolution In the provinces, land disputes can be very expensive and protracted. This does not encourage a rapid recourse to the formal courts. . There are few long-Standing land conflicts, which take more than 15 years to resolve, but on average, the majority of land cases take between three and five years to be resolved before any appeals proceedings in the High Court. Land matters usually have lots of competing interests, which may require further enquiry even when the respective claims have been made. Because of this reason and some other reasons settling them take a much longer period than others matters. Recommendations  Court of first instances judges should be grounded in land law;  Magistrates must not exercise jurisdiction in land matters involving title or recovery of possession only ejectment proceedings;  All case files to be numbered, dated and the information stored;  Train judges, Magistrates and Tribal authorities of special nature of land matters 104 | P a g e 5.9 Panel 9: Institutional Arrangements and Policies 5.9.1 Clarity of mandates and practice: institutional mandates concerning the regulation and management of the land sector are clearly defined, duplication of responsibilities is avoided and information is shared as needed LGI 1: Clarity of Mandates and Practice Dim LGI # INDICATOR Land policy formulation, implementation and 9 1 1 arbitration are separated to avoid conflict of interest. Responsibilities of the ministries and agencies 9 1 2 dealing with land do not overlap (horizontal overlap). 9 1 3 Administrative (vertical) overlap is avoided. Land right and use information is shared by 9 1 4 public bodies; key parts are regularly reported on and publicly accessible. Overlaps of rights (based on tenure typology) are 9 1 5 minimal and do not cause friction or dispute. Ambiguity in institutional mandates (based on 9 1 6 institutional map) does not cause problems. The roles of policy formulation, implementation, and arbitration are separated. Land policy formulation is the responsibility of the MLCPE. However, there are other MDAs involved in the implementation of the policies. These bodies are identified in the policy document. These include OARG, MAFFS, EPA, SLIEPA, MMMR, and MWHI, local government bodies under the MLGRD, etc. Arbitration is left in the hands of formal and informal courts systems. It should be noted that there is no land policy as at the time of this Assessment; and most of the laws were formulated in the 1960s and are in need of review. There are efforts to resolve this with the new National Lands Policy, which is yet to get through Cabinet, before eventually getting to Parliament. This Policy is part of a wider land reform process which is being carried out, looking at existing laws and regulations concerning land in Sierra Leone. The responsibilities of the ministries and agencies dealing with land in Sierra Leone do regularly overlap at the horizontal level. As illustrated by the institutional mapping (Chapter 3). Although the MLCPE is the main institution responsible for taking leadership on all land matters in the country, its effectiveness is very questionable, at the moment, due to these overlaps. 105 | P a g e  Development Control i.e. who has responsibility for authorizing development on any piece of land is a concern when ministries are renamed, for example, the Ministry of Works and Infrastructure was renamed Ministry of Works Housing and Infrastructure, basically removing ‘Housing’ from the then Ministry of Lands, Housing and Country Planning and the Environment. Before the change of names, development control was entirely with the latter Ministry, which issued planning permits and building permits. After the changes in the names, issuance of planning permits remained with the MLCPE, while the issuance of housing permit moved to the MWHI.  Demolition Powers is another area of concern. Investigations during this assessment show that there are several MDAs claiming responsibility of demolition powers. Among these are: Local councils, MLCPE, MWHI, SLRA and even the National Assets and Government Property Commission. It is a common sight to have demolition signs on buildings from at least two of such MDAs, along a single street. Vertical Administrative overlap between central and decentralized levels is avoided within the MLCPE, and every division is aware of its responsibilities, so that there are no administrative overlaps. What is common though is that within the Divisions, there are confusions about the roles and responsibilities of individual staff. There are also challenges with the de-concentration and devolution for key elements of land administration. MLCPE has neither power nor instruments to check the registration of transfer of land ownership and prevent double sales. The 2004 local government act is still not clear and the devolution process is not effective in most of the areas because the devolved functions are not clear or not supported by transfer of resources enabling the local government to implement. The 2004 act also states that all surveying functions should be devolved to local council, but in practice this is not feasible. Moreover, regional and international boundaries are beyond the jurisdiction of a local council. It can be concluded that there is ambiguity in institutional mandates given the numerous MDAs that handle land related matters, which leads to problems relating to tenure in the provinces in relation to leaseholds for large investments and in urban land management. Information on land ownership and use is shared among responsible institutions and relevant parts are freely accessible to the public. Although the MLCPE and various other ministries hold information related to land it is sometimes difficult to gain access to this information as data are paper based and not always shared or integrated. There has been initiative to set up nation data infrastructure systems. Another issue is that data used in policy planning can be outdated such as on land use status. Information on land ownership and use is shared not always freely accessible to the public Although the MLCPE and various other ministries have access to information related to land rights and use, it is sometimes difficult for the general public to gain access to this information. The barriers presented in some of these ministries can hinder progress trying to be made in relation to land issues. Some institutions, in fact, expect some sort of payment for allowing people access to 106 | P a g e information that should be free. However, a resilient individual or corporation would buy all the Acts from the Government Bookshop to have access to such information. The main feature of the tenure typology in Sierra Leone is the duality between the western areas and the provinces. On the whole, the overlaps are minimal and do not cause friction or dispute. The risk of overlap in duality is most obvious in dispute resolution, also recognised in S.76 of the Courts Act 1965, which do allows English-type courts to apply customary law: “when determining matters arising in the Provinces” in civil jurisdiction only, provided such customary law is not “repugnant to natural justice, equity and good conscience”. 5.9.2 Equity and Non-Discrimination in the Decision-Making Process: Policies are formulated in a Broad Public Process, Address Equity, and Implementation is Meaningfully Monitored. LGI 2: Equity and Non-discrimination in the Decision-making Process Dim LGI # INDICATOR Land policies and regulations are developed in a 9 2 1 participatory manner involving all relevant stakeholders. Land policies address equity and poverty 9 2 2 reduction goals; progress towards these is publicly monitored. Land policies address ecological and 9 2 3 environmental goals; progress towards these is publicly monitored. The implementation of land policy is costed, 9 2 4 matched with benefits and adequately resourced. There is regular and public reporting indicating 9 2 5 progress in policy implementation. Land policies help to improve land use by low- 9 2 6 income groups and those who experienced injustice. Land policies proactively and effectively reduce 9 2 7 future disaster risk. Although there are claims that during the formulation of the new National Land Policy (NLP) visits were to all 149 chiefdoms, in the provinces, the Assessment discovered that land owners, as stakeholders were left out. It was also discovered that most stakeholders were not involved in the several validation workshops held for the NLP. Land legislation development is slow in the case of approved policies (forestry and wildlife) and for land awaiting the new NLP. Regulations are not developed in a participatory manner. 107 | P a g e The new Land policies will address equity and poverty reduction goals and include guidance for public monitoring of progress, by taking into means of ensuring that low income groups are aided to improve land use. It is expected that the implementation of land policy is costed, matched with benefits and adequately resourced. Currently the new draft Land policy and its implementation has been costed by the MLCPE It is the Environmental Protection Agency's responsibility to ensure compliance with ecological and environmental goals in Sierra Leone as formulated in the Environmental Protection Agency Act of 2008. Any land leased or sold for use other than residential is subject to an EIA. However, this is not always monitored consistently and even when the EIA Certificate is issued corrupt practices usually lead to its non-applicability. There is no regular and public reporting indicating progress in policy implementation, which could be the main reason why implementation has been slow. Reporting allows for accountability and for raising the alarm of what is going wrong. It also provides recommendations to ensure smooth implementation. Land policies need to proactively and effectively reduce future disaster risk, but this is not the case. Every year, there are fatal accidents involving the loss of several lives simply because of having settlements in high risk areas such as water ways, or under rocks that are precariously hanging due to erosion caused by the removal of forest cover. Recommendations Ensure that the aspects that provide for proper coordination between MLCPE and other MDAs in the new National Land Policy (2015) are effectively monitored. With the current fragmentation of environmental and natural resource management in Sierra Leone, there is a unique opportunity for joint management by communities. More specifically, since communities are jointly reliant on resources such as water and forests, they provide an opportunity for communities to come together and cooperate on issues of planning, allocation and development. Joint management also provides opportunities to inform government and others about regional or area-specific situations. These, coupled with a clear mandate of responsibilities and penalties for not adhering to the defined roles, would reduce vertical administrative overlaps. 6.0 POLICY MATRIX This section presents a matrix of various land policies in existence in Sierra Leone. Table 10 presents how these policies are implemented, indicating the challenges of implementation overlaps. Table 10: Sierra Leone Land Policy Matrix Themes/issues Recommendation Responsible Entity Indicators  Recognition of rights  Government to approve  MLCPE  % of land area in the NLP  MOJ western area 108 | P a g e  Dual land system with  Undertake a baseline  MOFED recorded with right statutory law in western study of the total land  Cabinet and holders identified areas, and recognized area mapped and Parliament  % of land area in customary law (including recorded in the country. western area common lands) in  During implementation mapped Provinces in trust by the role of the Land  % of land area in paramount chiefs and Tribunal should cover Provinces recognized by law (95 % the land disputes country recorded with right of the country). wide holders identified  There is no approved  Review and streamline  % of land area in land policy, despite legal framework for land provinces mapped several attempts in the and resource governance past (2001; 2005) and address ambiguities,  Rights may not be informed also by recognized in practice international good when long term leases of practice and the VGGT customary land with investors approved by paramount chiefs. Challenges with recognition of rights in western area over multiple sale of the same plot  Land use management  Ensure the regular  MLPCE  Changes in land  Land use policies are preparation and review  MWHI use ( protected weakly developed and of land use plan by both  MAFFS areas, not always translated in urban and rural area.  Paramount deforestation, law (forest, wildlife)  Review and strengthen Chiefs degradation,  In practice, customary the existing management  EPA habitation in authorities determine system to ensure the  Local Councils disaster prone land use in their areas of implementation and areas influence and even in enforcement of the land  % contracts (areas) protected areas, but not use plans Compliance, for long term leasehold,  Develop land use including social where the lessee is monitoring system to be safeguards in expected to comply with implemented with leasehold contracts regulations and customary authorities  % Reduction in conditions in the  Explore possibility of slums expansion agreement, but making use of satellite and growth enforcement is weak imagery for monitoring  Level and rate of land use and urbanization implementation  Ensure compliance of land use conditions in leasehold agreement with private investors  To review existing statutory instruments Empower MLCPE and 109 | P a g e the EPA to prevent settlements in high risk areas;  Government should use eminent domain provisions of the law to remove the inhabitants of such places.  Gender  To ensure gender equity  Ministry of  % of land rights  Customary law does not in the social, economic, Children and recorded in pay special attention to political and legal Gender Affairs women’s name women’s rights. The aspects of society  Constitutional  % of women bundle of rights for rural  Have an inventory of Review registered as part women is determined in differences in women’s Committee of customary land practice by customary bundle of rights in  Paramount “trusts” law and traditions, which customary systems and Chiefs  Number of women vary significantly their evolution;  CSOs heads of between ethnic groups  Promote sharing of good  Law Reform landowning and can evolve, to adjust practice with customary families in the to new circumstances ( authorities and rural areas commercial tree crops, grassroots organisations transactions)  Urban  Make use of existing  MLCPE  Expansion urban  Urbanization is about town and country act to  MWHI area 40% but urban prepare plans for various  Freetown  Density expansion is unplanned. parts of the country council  Congestion Slums have been a while plans are  All local  Building permits concern for decades. undertaken to review it. Councils in the  Planning permits Spatial planning efforts  Translate urban policies provinces are in place since the in urban spatial 1960s but with very planning for more city limited actual infrastructure and implementation. transport choices, using  MLCPE and MWHI do a consultative process not share information  Develop condominium on building permits, law preventing local  Develop strategic councils to track statutory plans (structure constructions plans, local plans and area action plans) for all urban centers  Ensure that future spatial framework will guide infrastructure investments and will be integrated in sectoral development strategies of other MDA 110 | P a g e  Develop policies to discourage growth and proliferation of slum settlements  harmonization of development standards  Ensure information exchange between MLCPE and MWHI on building permits  State or Public land  Include state land  MLCPE  % of state land State land in western areas management any in new  MAFFS recorded is the former colony land, land policy, including  MWHI  % state land which is poorly demarcated assignment through  EPA mapped and mapped, and subject to auction unless equity  CSOs  % and number of encroachment and even reasons  MOJ state land assigned “grabbed’  Demarcation and  MMR based on auction (  State land in the mapping of all state land except for equity provinces are mostly the in the western area considerations) protected areas  Management and  Compensation  The state assigns land to protection of state land paid based on private parties, for to address issues of market prices in which the procedure is encroachment and illegal case on describes in the Public appropriation expropriation lands act, but the policy  Make explicit policy and  Time taken for and strategy is not strategy for allocation of payment defined state land to private  Complaints  The Public lands act parties  % area under prescribes  Develop guiding protection for compensation at market principles for market environmental prices in case of based valuation based on considerations compulsory acquisition international standards  % area of state but in practice valuation  Revival of the Sierra land managed by is ‘ad-hoc” and payment Leone National Survey both the rural is late Training School to communities and increase the number of an MDA qualified surveyors and certify their level of competence and ensure standards in their professional practice through the introduction and use of modern surveying and mapping techniques, standards and regulations  Ensure timely payment of compensation 111 | P a g e  Develop resettlement policy using international standards  Large-scale land based  Ensure implementation  SLIEPA  Area and number investments of monitoring is done.  MLCPE of large scale land  Investors access land via  Operationalize grievance  MMMR based investments paramount chiefs with mechanism  MAFFS  Area and number support from  Effective coordination  Paramount mining government, but the on large scale lease Chiefs concessions process used is not holders between MDAs  Land Holding  Land use change always with free, prior on procedures for Families  No of disputes and informed consent identification and  CSOs related to large from all legitimate land approval assessment,  Local scale and based holders, leading to monitoring and government investments disputes and conflict. evaluation  Land users  Spillover effects  Contract conditions are  Inventory of mutually (employments, not always well beneficial investment revenues etc.) negotiated and those models with signing contracts may not communities and be fully informed of the smallholders in Sierra contract implications and Leone and externally, real benefits. and identify good  Investors do not always practice understand well local  All legitimate land conditions and holders should be fully differences in perceptions informed, consulted and and expectations of the give consent were contract relevant as condition for  Mining concessions and formalizing a leasehold Land allocations may agreement result in loss of  Entry point mechanisms livelihood and are established and dispossession. strictly followed by  MAFSS and SLEIPA investors have no spatial plan for  Make expert support investments and do not possible available for coordinate on guidelines local communities for investors and during negotiation and investment projects; implementation (such as MDAs do not share provided by CSO) information  Public disclosure of  Civil societies large-scale leasehold organization play an contracts and enable important role in holding public scrutiny companies to account and  Ensure that effective respect agreements monitoring system for leasehold contracts is in place 112 | P a g e  Land administration  Develop up to date and  OARG  No of transaction  The deeds registry is complete cadastre of  MLPCE registered maintained by OARG protected land,  MAFFS (estimate of total) which registers survey leaseholds and urban  MWHI  Other plans signed by MLCPE. areas.  MMMR encumbrances Data integration is not  Build land  Efficiency fluid and delayed; and administration and other registration’ there is no control of registration capacity in  Accuracy ownership by either the local government  Coverage OARG or MLCPE level (devolution) and in  Amount of funds  Survey standards as listed chiefdoms generated from in the ordinance are  Compare land cadastre this per outdated and block the with mining cadastre and use of new technologies identify overlaps  The surveys and lands  Modify and streamline training school was land information system, closed in 1999 and there improve is no more training complimentarity capacity in Sierra Leone,  Digitalization of paper- affecting quality of work based records in registry and availability. There at OARG are unfilled vacancies in  Develop capacity ministries building programs to  Concerns over high level upgrade skills of of corruption on land surveyors and re- related matters in all opening of surveys and MDAs land straining school  Upgrade legal framework on service delivery standards and fees (Civil service code and Sierra Leone Civil Service Code)  Consider establishment of formal integrity committees in MLCPE and other MDA to improve transparency  Develop strategy to combat corruption, including monitoring unit in OARG and MLCPE  Provide an incentive for MLCPE to collect more funds, by letting them keep a percentage for use to improve their capacity. 113 | P a g e  Valuation and tax  Standardized  Local Councils  %/ Number of  The legal and methodology for  MOFED (Local land and property institutional system is in property valuation Government with updated place, but the land  Proper valuation system Financing valuation based on valuation profession is to be adjusted to urban Department) market price poorly developed; and rural conditions  % of eligible tax valuation rolls are not  All local councils must payers who paid regularly updated introduce and fully  Efficiency tax  Local councils not capacitate property collection maximize efforts to valuation units and set-  Amount of collect taxes; Mass up assessment property tax valuation system committees, which will collected by introduced in local be used for certifying the councils per year councils are hardly used valuation rolls as required by law.  Regular general assessment/valuation of all land and properties  All local councils must introduce and fully capacitate property valuation units; and set- up assessment committees, which will be used for certifying the valuation rolls as required by law.  All local councils’ ordinances must provide for computer-assisted mass appraisal which will lead to a full inspection of each property, so that all properties could be easily assessed, and hopefully most, if not all, taxes collected.  All valuation rolls must show the name of the owner, a description of the property, the size of the property, the value of the land, and the value of the improvements.  Local governments should collect interest on arrears, insisting that a clearance certificate is required before any 114 | P a g e formal transfer can take place.  Decentralization of tax payment system to facilitate payment.  Disputes  Set out clearly the  Ministry of  No of land related  The land related dispute jurisdiction of each legal Justice disputes system is also dual and structure in determining  MLCPE  Efficiency court adjusted to the specific title to land;  Paramount system conditions in the  Rationalise and chiefs  Average number western areas and the strengthen the capacity of years to litigate provinces. In the of traditional land cases in the western area, the institutions, local and urban areas majority of litigations in national courts in the  Average number high courts are land speedy and effective of years to litigate related resolution of land land cases in the  Most litigations are the disputes. rural areas result of conflict over  Restructure the land transactions. The administrative arm of the judiciary system has a judiciary for them to be large case load and able to deal with needs to improve disputes within a efficiency. There is also reasonable period of a confusion of roles and time. some magistrates  Upgrade record exercise jurisdiction in management system land matters involving with case files to be title or recovery of numbered dated and the possession, while they information stored. should only deal with Regularly report on ejectment proceedings. number of land related  The customary systems cases for dispute resolution  Train judges, are capable for dealing Magistrates and with most and related  In view of the very disputes, except for important role played by those that are related to tribal authorities in the the large-scale provinces, more training leaseholds as these have needs to be provided for undermined trust in the them. customary authorities  Strengthen Alternative involved. Dispute Resolution System  Provide training also in gender related land issues to both the formal and traditional courts  Review of causes of land related litigations to 115 | P a g e develop effective prevention  Legal and institutional  Promote adequate  MLCPE  Number of areas framework understanding of the  MAFFS of overlaps among  Ministry of Lands, provisions of the land  MMMR MDAs Country Planning and policy and its legal  MWHI  Efficiency in the Environment framework especially for  EPA reducing the (MLCPE) plays central personnel in the MDAs  MOJ overlaps role and has clear  Access by everyone to mandate. Work is regular and public organized in divisions, reporting on land but it faces coordination matters, to ascertain problems progress in the  Other ministries, implementation of all departments and aspects of the policy. agencies (MDA)  Popularizing the policy working on land have for general public conflicting and understanding overlapping mandates  Ensure that  MDAs have insufficient implementation of the human resources and new national land policy technical capacity to is feasible, cost- implement their effective, making use of mandate new fit-for purpose technologies and combined with proper costing  Ensure that MDAs are adequately resourced to carry out their mandates. Finance capacity building MLCPE , OARG, ancillary MDAs and local councils partly through revenues mining concessions ,and land leases, and equitable and reasonable tax regimes and user fees  Policy Review of the statutory mandates of MDAs to identify overlaps/ contradictions, particularly with respect to land use planning, land management and land administration  Enhance efficiency, effectiveness and transparency of land 116 | P a g e administration by better streamlining of services among and within MDAs  Strengthen decentralization of land administration services  Enhance capacity for the effective monitoring and evaluation of any national land policy and implementation and its impacts. 7.0 BIBLIOGRAPHY Acemoglu, D., Chaves, I. N., Osafo-Kwaako, P., & Robinson, J. A. (2014, May). INDIRECT RULE AND STATE WEAKNESS IN AFRICA: SIERRA LEONE IN COMPARATIVE PERSPECTIVE. NBER WORKING PAPER SERIES. African Development Bank. (2013). Green Growth Sierra Leone: Transitioning Towards Green Growth. Butler, S. B. (2009). Note on Acquisition of Land for Agricultural Investment in Customary. Kaindaneh, P. M. (2015). Challenges to the Achievement of Rice Self-Sufficiency in the Mano River Union Sub Region. Moyo, S., & Foray, M. K. (2009). Key Land Tenure Issues and Reform Process for Sierra Leone. Renner-Thomas, A. (2010). Land Tenure in Sierra Leone: The Law, Dualism and the Making of a Land Policy. Central Milton Keynes: Author House. USAID. (2010). Sierra Leone: PROPERTY RIGHTS AND RESOURCE GOVERNANCE. 117 | P a g e 8.0 ANNEXES Annex 1: Female Paramount Chiefs in Sierra Leone No Name Chiefdom District 1 Mariama Jaward Tamia II Niawa Kenema 2 Sally Satta Lamin Gendemeh Malegohun Kenema 3 Haja Mariama M. Gassama- Kanja Gorama Mende Kenema 4 Mamie Gamanga Simbaru Kenema 5 Madam Theresa Vibbie Kandu Leppiama Kenema 6 Matilda Yayu Minah Yakemo Kpukumu Krim Pujehun 7 Edna G. Fawundu Manor Sakrim Pujehun 8 Doris Lenga Koroma Kagboro Moyamba 9 Haja Fatmata Meama-Kajue Dasse Moyamba 10 Deboran Sudie Quee IV Kowa Moyamba 11 Madam Ruth Fawundu-Songa Gbo Bo 12 Hawa Kpanabum Sokahun IV Imperri Bonthe 13 Melrose Forster Gberie Kpanda Kemo Bonthe Annex 2: Sierra Leone Score Card Score Pan-LGI- Topic A B C D Dim PANEL 1: Land Rights Recognition LGI 1: Recognition of a continuum of rights Individuals' rural land tenure rights are legally recognized and 1 1 1 protected in practice. 1 1 2 Customary tenure rights are legally recognized and protected in practice. Indigenous rights to land and forest are legally recognized and 1 1 3 protected in practice. 1 1 4 Urban land tenure rights are legally recognized and protected in practice. LGI 2: Respect for and enforcement of rights 1 2 1 Accessible opportunities for tenure individualization exist. 1 2 2 Individual land in rural areas is recorded and mapped. 1 2 3 Individual land in urban areas is recorded and mapped. 1 2 4 The number of illegal land sales is low. 1 2 5 The number of illegal lease transactions is low. Women's property rights in lands as accrued by relevant laws 1 2 6 are recorded. PANEL 2: Rights to Forest and Common Lands & Rural Land Use Regulations LGI 1: Rights to Forest and Common Lands Forests are clearly identified in law and responsibility for use x 2 1 1 is clearly assigned. 1 Common lands are clearly identified in law and responsibility x 2 2 for use is clearly assigned 1 Rural group rights are formally recognized and can be 2 3 enforced. 118 | P a g e Users' rights to key natural resources on land (incl. fisheries) 2 1 4 are legally recognized and protected in practice. Multiple rights over common land and natural resources on 2 1 5 these lands can legally coexist. Multiple rights over the same plot of land and its resources 2 1 6 (e.g. trees) can legally coexist. Multiple rights over land and mining/other sub-soil resources 2 1 7 located on the same plot can legally coexist. Accessible opportunities exist for mapping and recording of 2 1 8 group rights. 2 1 9 Boundary demarcation of communal land. LGI 2: Effectiveness and equity of rural land use regulations Restrictions regarding rural land use are justified and 2 2 1 enforced. Restrictions on rural land transferability effectively serve 2 2 2 public policy objectives. Rural land use plans are elaborated/changed via public process 2 2 3 and resulting burdens are shared. Rural lands, the use of which is changed, are swiftly 2 2 4 transferred to the destined use. Rezoning of rural land use follows a public process that 2 2 5 safeguards existing rights. For protected rural land use (forest, pastures, wetlands, 2 2 6 national parks, etc.) plans correspond to actual use. PANEL 3: Urban Land Use, Planning, and Development LGI 1: Restrictions on Rights Restrictions on urban land ownership/transfer effectively serve 3 1 1 public policy objectives. Restrictions on urban land use (disaster risk) effectively serve 3 1 2 public policy objectives. LGI 2: Transparency of Land Use Restrictions changes in land use and management regulations are made in a transparent fashion and provide significant benefits for society in general rather than just for specific groups. Process of urban expansion/infrastructure development 3 2 1 process is transparent and respects existing rights. Changes in urban land use plans are based on a clear public 3 2 2 process and input by all stakeholders. Approved requests for change in urban land use are swiftly 3 2 3 followed by development on these parcels of land. LGI 3: Efficiency in the Urban Land Use Planning Process: Land use plans are current, implemented, do not drive people into informality, and cope with urban growth Policy to ensure delivery of low-cost housing and services 3 3 1 exists and is progressively implemented. Land use planning effectively guides urban spatial expansion 3 3 2 in the largest city. Land use planning effectively guides urban development in 3 3 3 the four next largest cities. 3 3 4 Planning processes are able to cope with urban growth. LGI 4: Speed and Predictability of Enforcement of Restricted Land Uses Provisions for residential building permits are appropriate, 3 4 1 affordable and complied with. A building permit for a residential dwelling can be obtained 3 4 2 quickly and at a low cost. 119 | P a g e LGI 5: Tenure regularization schemes in urban areas Formalization of urban residential housing is feasible and 3 5 1 affordable. In cities with informal tenure, a viable strategy exists for 3 5 2 tenure security, infrastructure, and housing. A condominium regime allows effective management and 3 5 3 recording of urban property. PANEL 4: Public Land Management LGI 1: Identification of Public Land and Clear Management Criteria for public land ownership are clearly defined and 4 1 1 assigned to the right level of government. 4 1 2 There is a complete recording of public land. 4 1 3 Information on public land is publicly accessible. The management responsibility for different types of public 4 1 4 land is unambiguously assigned. Responsible public institutions have sufficient resources for 4 1 5 their land management responsibilities. All essential information on public land allocations to private 4 1 6 interests is publicly accessible. LGI 2: Justification and Time-Efficiency of Acquisition Processes 4 2 1 There is minimal transfer of acquired land to private interests. Acquired land is transferred to destined use in a timely 4 2 2 manner. The threat of land acquisition does not lead to pre-emptive 4 2 3 action by private parties. LGI 3: Transparency and Fairness of Acquisition Procedures Compensation is provided for the acquisition of all rights 4 3 1 regardless of their recording status. Land use change resulting in selective loss of rights there is 4 3 2 compensated for. 4 3 3 Acquired owners are compensated promptly. There are independent and accessible avenues for appeal 4 3 4 against acquisition. Timely decisions are made regarding complaints about 4 3 5 acquisition. PANEL 5: Transfer of Large Tracts of Land to Investors LGI 1: Transfer of Public Land to Private Use Follows a Clear, Competitive Process and Payments are Collected Public land transactions are conducted in an open transparent 5 1 1 manner. 5 1 2 Payments for public leases are collected. Public land is transacted at market prices unless guided by 5 1 3 equity objectives. The public captures benefits arising from changes in permitted 5 1 4 land use. 120 | P a g e Policy to improve equity in asset access and use by the poor 5 1 5 exists, is implemented effectively and monitored. LGI 2: Private Investment Strategy Land to be made available to investors is identified 5 2 1 transparently and publicly, in agreement with right holders. Investments are selected based on economic, socio-cultural 5 2 2 and environmental impacts in an open process. Public institutions transferring land to investors are clearly 5 2 3 identified and regularly audited. Public bodies transferring land to investors share information 5 2 4 and coordinate to minimize and resolve overlaps (incl. sub- soil). Compliance with contractual obligations is regularly 5 2 5 monitored and remedial action taken if needed. Safeguards effectively reduce the risk of negative effects from 5 2 6 large scale land-related investments. The scope for resettlement is clearly circumscribed and 5 2 7 procedures exist to deal with it in line with best practice. LGI 3: Policy Implementation is Effective, Consistent and Transparent Investors provide sufficient information to allow rigorous 5 3 1 evaluation of proposed investments. Approval of investment plans follows a clear process with 5 3 2 reasonable timelines. Right holders and investors negotiate freely and directly with 5 3 3 full access to relevant information. Contractual provisions regarding benefit sharing are publicly 5 3 4 disclosed. LGI 4: Contracts Involving Public Land are Public and Accessible Information on spatial extent and duration of approved 5 4 1 concessions is publicly available. Compliance with safeguards on concessions is monitored and 5 4 2 enforced effectively and consistently. Avenues to deal with non-compliance exist and obtain timely 5 4 3 and fair decisions. PANEL 6: Public Provision of Land Information: Registry and Cadastre LGI 1: Mechanisms for Recognition of Rights Land possession by the poor can be formalized in line with 6 1 1 local norms in an efficient and transparent process. Non-documentary evidence is effectively used to help 6 1 2 establish rights. 6 1 3 Long-term unchallenged possession is formally recognized. First-time recording of rights on demand includes proper 6 1 4 safeguards and access is not restricted by high fees. 6 1 5 First-time registration does not entail significant informal fees. 121 | P a g e LGI 2: Completeness of the Land Registry 6 2 1 Total cost of recording a property transfer is low. Information held in records is linked to maps that reflect 6 2 2 current reality. 6 2 3 All relevant private encumbrances are recorded. 6 2 4 All relevant public restrictions or charges are recorded. There is a timely response to requests for accessing registry 6 2 5 records. 6 2 6 The registry is searchable. 6 2 7 Land information records are easily accessed. LGI 3: Reliability of Registry Information Information in public registries is synchronized to ensure 6 3 1 integrity of rights and reduce transaction cost. Registry information is up-to-date and reflects reality on the 6 3 2 ground LGI 4: Cost-effectiveness and Sustainability of Land Administration Services The registry is financially sustainable through fee collection to 6 4 1 finance its operations. Investment in land administration is sufficient to cope with 6 4 2 demand for high quality services. LGI 5: Fees are Determined Transparently Fees have a clear rationale, their schedule is public, and all 6 5 1 payments are accounted for. 6 5 2 Informal payments are discouraged. 6 5 3 Service standards are published and regularly monitored. PANEL 7: Land Valuation and Taxation LGI 1: Transparency of Valuations 7 1 1 There is a clear process of property valuation. 7 1 2 Valuation rolls are publicly accessible. LGI 2: Collection Efficiency Exemptions from property taxes payment are justified and 7 2 1 transparent. All property holders liable to pay property tax are listed on the 7 2 2 tax roll. 7 2 3 Assessed property taxes are collected. 7 2 4 Receipts from property tax exceed the cost of collection. PANEL 8: Dispute Resolution LGI 1: Assignment of Responsibility There is clear assignment of responsibility for conflict 8 1 1 resolution. 8 1 2 Conflict resolution mechanisms are accessible to the public. Mutually accepted agreements reached through informal 8 1 3 dispute resolution systems are encouraged. There is an accessible, affordable and timely process for 8 1 4 appealing disputed rulings. LGI 2: The Share of Land Affected by Pending Conflicts is Low and Decreasing Land disputes constitute a small proportion of cases in the 8 2 1 formal legal system. 8 2 2 Conflicts in the formal system are resolved in a timely manner. 8 2 3 There are few long-standing (> 5 years) land conflicts. PANEL 9: Institutional Arrangements and Policies LGI 1: Clarity of Mandates and Practice 122 | P a g e Land policy formulation, implementation and arbitration are 9 1 1 separated to avoid conflict of interest. Responsibilities of the ministries and agencies dealing with 9 1 2 land do not overlap (horizontal overlap). 9 1 3 Administrative (vertical) overlap is avoided. Land right and use information is shared by public bodies; key 9 1 4 parts are regularly reported on and publicly accessible. Overlaps of rights (based on tenure typology) are minimal and 9 1 5 do not cause friction or dispute. Ambiguity in institutional mandates (based on institutional 9 1 6 map) does not cause problems. LGI 2: Equity and Non-discrimination in the Decision-making Process Land policies and regulations are developed in a participatory 9 2 1 manner involving all relevant stakeholders. Land policies address equity and poverty reduction goals; 9 2 2 progress towards these is publicly monitored. Land policies address ecological and environmental goals; 9 2 3 progress towards these is publicly monitored. The implementation of land policy is costed, matched with 9 2 4 benefits and adequately resourced. There is regular and public reporting indicating progress in 9 2 5 policy implementation. Land policies help to improve land use by low-income groups 9 2 6 and those who experienced injustice. Land policies proactively and effectively reduce future disaster 9 2 7 risk. Annex 3: Panel Members Panel NAME INSTITUTION No. No 1 Mohamed Kabiru National Federation of Farmers-Sierra Leone 1 2 Ahmed Tejan Kella Consultant Agricultural Economics 3 Abu Bakarr Sesay National Federation of Farmers-SL 1 Haja Ya Alimamy National Federation of Farmers-SL 2 Yeiwah Musa 50/50 Group (CSO) 2 3 Isata King Ministry of Lands, Country Planning And The Environment 4 Kemoh Koroma Sierra Leone Chamber of Agriculture 5 Francis A R Sankoh Ministry of Agriculture, Forestry And Food Security 1 Arthur W. Lewis Freetown City Council 2 Andrew Keili Sierra Leone Chamber of Commerce 3 3 Frank S. Williams Allat Network 4 Christian M. Pratt Director of Surveys And Lands, MLCPE 5 Samuel M. Kamara Ag. Asst. Director, Environment Protection Agency – SL 1 Joseph Saffa SiLNORF 4 2 Rev. S.E.K Harding National Federation of Farmers-SL 3 Michael. A. Yamba CLOGADE 123 | P a g e 4 Peter Ansumana Sierra Leone Chamber of Commerce 1 Alhaji Unisa Alim Sesay Chairman Government Assets Commission 2 Joseph Saffa Sierra Leone Network On The Right to Food (SiLNORF) 5 3 Augusta Nabieu Sierra Leone Chamber of Agriculture 4 Francis Lebbie Ministry of Lands, Country Planning and The Environment 1 Lena Thompson 50/50 Group 2 Victor Bangura Sierra Leone Investment and Export Agency 6 3 Jobo Samba Ministry of Lands, Country Planning And The Environment 4 Mariatu Turay Ministry of Agriculture, Forestry And Food Security 5 Moses Kamara Director, Environment Protection Agency – SL 1 Hon. J B Mansaray Member of Parliament 2 Dr. Fatu Taqi 50/50 Group (CSO) 7 3 Chrispina Fynn National Revenue Authority 4 Mabel Thoronka National Federation of Farmers 5 Samuel Bangura Ministry of Lands, Country Planning and the Environment 1 Gbakai F. Kaindaneh The Economic Forum 2 Patrick Kauai Sierra Leone Chamber of Agriculture 8 3 Ibrahim Koroma Sierra Leone Bar Association 4 Joseph Fofanah Deputy Administrator and Registrar General 1 Joseph Rahal Expert Investigator - Panel 5 2 K. M. Foray Expert Investigator - Panel 2 3 Ibrahim Koroma Expert Investigator - Panel 8 4 Jobo Samba Representing Expert Investigator - Panel 6 9 5 Alphajor Cham Expert Investigator - Panel 3 6 Alimamy Kargbo Expert Investigator - Panel 7 7 Floyd Davies Expert Investigator - Panel 4 8 Peter M. Kaindaneh Country Coordinator 9 Salieu Barrie Research Assistant 124 | P a g e