Report No. 46134-LR Liberia Insecurity of Land Tenure, Land Law and Land Registration in Liberia October 22, 2008 Environmental and Natural Resources (AFTEN) Africa Region Document of the World Bank The work that producedthis report was carried out during March and December, 2007 using a TFESSD grant. The basis o fthe work includedseveralmissionsto Liberiaofa teamthat included Nyaneba Nkrumah (TTL), Emmanuel Fiadzo (Sr. Country Economist), John Bruce (Lead Consultant) and John Unruh (Consultant). Thanks to the members of SD who reviewed and commented on the document, particularly Paula Agostini and Chris Jackson. A special thanks goes to John Bruce, who wrote much of this report and who provided such excellent technical assistanceto the Governance Commission(GC) that they have requestedhis assistance time and time again. The team was involved discussions in Liberiawith a wide range of stakeholders in Abidjan and outside of Monrovia,. These trips enabled the team to visit two communities near Monrovia, Millsburg on the St. Paul River in Montserrado County, and Tubmanburg, the seat of Bomi County. Inaddition,muchtime was spent inMonrovia, talkingwith officials and others working on landmatters. A list ofthose consulted is providedinAnnex B. The team wishes to thank the staff and experts of the Governance Commission (GC), and in particularDr. Jeanette Carter of the University of Liberiaand CounselorPhilipBanks, then legal consultant to the Commission, for their helpful reception and thoughtful advice. The team later hadthe opportunityto consult with Dr. Amos Sawyer, the Chair of the GC, in Liberiaand at the Bank's offices in Washington, to discuss plans for the Lands Commission and opportunitiesfor donor assistance mentiyed in this report. Finally, the GC facilitated a private audience with President Shirlef Johnson, who affirmed the high priority she accords land tenure in Liberia's reform agenda. The team expresses their gratitude for the meeting and support shown by the President. The team also wishes to express their gratitude to Dr. Othello Brandy for his introductionto the communityof Millsburgand its land tenure issues, and to the many officials who patiently and helpfully respondedto the various questions. Those at the Ministry of Lands, Mines and Energy, the Minister and Deputy Minister E.C.B.Jones, were especially helpful, and the Ministry of InternalAffairs kindlyarrangedthe visit to Tubmanburg. Liberiais embarkingon a searchingand broadly consultative inquiryinto its landtenure problems and their solutions. The conclusions and recommendationshere are intended as input into that process. Inaddition, this report is largely a diagnostic, focused on deconstructing and assessing the complex land tenure problems in Liberia, particularly in the legal and land administration arena and discussing options for policy reforms that auger well for sustained growth. The study deliberatelydoes not do an in-depthanalysis on concessions, in part because IFC has a review of concessionsandtheir provisionsunderway, but does make recommendationson some ofthe land- related issues. Land institutionsare covered, but on a relatively formal level, in terms of their legal competences, since no study of the capacity of these institutions is available. The report focuses on the needfor better coordination, consolidationanddecentralization. ... 111 Table of Contents EXECUTIVE SUMMARY ....................................................................................................................... vi1 INTRODUCTION ......................................................................................................................................... 1 THE POST-CONFLICT POLICY CONTEXT: RESTORING SECURITY OF LAND TENURE 7 ..... 1.1 THEHISTORICAL CONTEXT ......................................................................................................... 1.2. POST-CONFLICTCOMPETITION AND CONFUSIONOVER LAND RURAL IN AND URBAN LANDS .78 1.3 ENDEMICLAND DISPUTES: SYMPTOMS OF LAND TENURE PROBLEMS ...................................... 9 1.4 THEIMPACTOFPOST-CONFLICTINSECURITYONLIBERIA'S TENURESYSTEM...........13 LAND 1.5 RECOMMENDATIONS .................................................................................................................. 14 LIBERIA'S LAW OF REAL PROPERTYON STATEE'UBLIC L A N D S ........................................... 17 2.1 THECOMMONLAW BASE: THEINTRODUCTIONOFFEESIMPLE INTHEHISTORICAL CONTEXT .................................................................................................................................... 17 2.2 STATUTESON REALPROPERTY: A SUPPLEMENT ..................................................................... 18 2.3 THEPUBLIC LANDSLAW 1956 OF ............................................................................................. 19 2.4 RECOMMENDATIONS:REFORM STATE LAW REALPROPERTYTO IMPROVE TENURE ON SECURITY .................................................................................................................................... 21 LIBERIA'S CUSTOMARY LAND LAW ................................................................................................. 25 3.1 THEHISTORICAL CONTEXT OF CUSTOMARY LAND .................................................................. 25 3.2 THELEGAL STATUSOF CUSTOMARY LAND ..................................................................... LAW 26 3.3 PROBLEMSWITH THE DUALITYOF STATE LAW CUSTOMARY RIGHTS AND ............................ 28 3.4 CUSTOMARY LAND LAW THE COURTS IN .................................................................................. 29 3.5 CUSTOMARY LANDS TA~NG............................................................................................ AND S 31 3.6 RECOMMENDATIONS: INTEGRATECUSTOMARY LAND TENUREINTOTHE NATIONALLAND LAW IMPROVEDLAND FOR SECURITY ...................................................................................... 32 LANDADMINISTRATION: DEEDS REGISTRATIONAND LANDREGISTRATION .................35 4.1 THEDEEDS REGISTRATION SYSTEM ......................................................................................... 35 4.2 THELAND REGISTRATION SYSTEM........................................................................................... 38 4.3 RECOMMENDATIONS IMPROVINGTHE DEEDSYSTEMAND MOVING FOR FORWARDWITH LAND REGISTRATION ................................................................................................................. 40 LAND INSTITUTIONS INLIBERIA ....................................................................................................... 43 5.1 FRAGMENTED AUTHORITY INLAND ADMINISTRATIONAND MANAGEMENT .......................... 43 5.2 CAPACITY CONSTRAINTS THE KEY IN LAND INSTITUTION 44 ...................................................... 5.3 THECREATION OFA LANDS COMMISSIONTO GUIDE THE REFORM ........................................ 45 5.4 RECOMMENDATIONS STRENGTHEN~NGLAND ON INSTITUTIONS ............................................. 47 A SYNTHESIS OF RECOMMENDEDACTIONS ................................................................................. 49 6.1 RAPIDREMEDIATIONMEASURES .............................................................................................. 49 6.2 SHORT-TO-MEDIUM TERMINTERVENTIONS 49 ............................................................................. 6.3 ASSESSINGTHE VIABILITY OF LAND REFORM .......................................................................... 56 6.4 RESTORING LAND TENURESECURITY: A PRIORITY MAT .................................................. RY( 57 OPPORTUNITIES FOR DEVELOPMENTPARTNERS ...................................................................... 60 7.1 IMMEDIATE AREASFORFINANCIALINTERVENTION 60 ................................................................ 7.2 INVESTMENTINLAND ADMINISTRATION LAND - TITLING AND REGISTRATION .................... 61 7.3 INVESTMENT INCAPAC1TY BUILDING FOR LAND INSTITUTIONS ............................................. 61 7.4 CONCLUSION ............................................................................................................................... 62 7.5 NEXTSTEPS ................................................................................................................................ 62 REFERENCES ........................................................................................................................................... -63 iv Listof Annexes ANNEX A PERSONSAND INSTITUTIONS CONSULTED ................................................................................. 67 ANNEXB SUPPLEMENTS TOTHE LIBERIAN LAW ANNEX c.DETAILEDDISCUSSION .. LAND ............................................................................ 69 OFTHE LAND TENUREPROBLEMINLIBERIA HOW OTHER AND ANNEX D PRESENTATIONON LANDS 91 ANNEX E SUMMARY OF KEY ANNEX F SUMMARY OF MLMEPROPOSAL: JUMP-STARTING LAND ...COUNTRIESHAVE ADDRESSED THESE ISSUES ............................................................................. 70 COMMISSION .................................................................................. PROVISIONSOF THE LAND REGISTRATION LAW 1974 .............................. 94 ............................................................................................................................................. ADMINISTRATION, SEPTEMBER ANNEXG MEMORANDUM ANNEXH REPORT WORKING GROUPONLEGAL ANNEX 1 LAND .. .2006 OFUNDERSTANDINGON LAND REGISTRATION, OCTOBER 21, 2006 OF ISSUES, 15,2007 GRCWORKSHOP, MARCH POLICY AND TENURE INLIBERIA'S POVERTY REDUCTIONSTRATEGY ..............................101 .............96 98 105 Listof Figures FIGURE1: PROJECTED URBANIZATION LEVEL (UNHABITAT. 2000).......................................................... 11 FIGURE2: LAND TENURE.LAND ADMINISTRATION AND SECURITY OFLAND TENURE ............................ 14 FIGURE3: ORGANIZATIONAL CHART. MINISTRY LAND. OF MINES ENERGYAND .................................... 44 List of Boxes Box1:THEMAJOR PRESSUREPOINTSOVERLAND TODAY'S IN LIBERIA ................................................. 9 BOX 2: INLIBERIA DISPUTESWITHIN THE FORMAL TENURE SYSTEMS INVOLVEISSUESWHERE ..............10 Box3: LIBERIAN PROPERTY LAW .............................................................................................................. 19 BOX 4: PROCESS FORTHE SALE OF LIBERIAN PUBLIC LANDS ................................................................... 20 BOX 5: LAWS ALLOW TRIBAL COMMUNITIES TO OBTAIN TITLE TO LAND THAT .................................... 29 BOX 6: DEEDS REGISTRATION LIBERIA IN .................................................................................................. 36 V List Map of Liberia The counties which touch on the Coast (Cape Mount, Bomi, Montserrado, Grand Bassa, River Cess, Sinoe, Grand Kru and Maryland) are the areas o f early hero-Liberian settlement. These "old counties" are those inwhich most land i s in fee simple ownership under deed. The interior counties contain some fee simple land, butthe bulk of landthere is used under customary landtenure. vi Executive Summary 1. To implement the vision of fostering economic development, social equity, and a transparent and effective government, the Government of Liberia has outlined key transitions that need to be accomplished. These include the development of infrastructure (roads, electricity), schools, job creation and transition from war, civil conflict and social polarization to a well functioning society in which economic opportunities are fostered and distributed equitably. Yet clearly, reform of the land tenure system is also a priority of Government. This is because effective land policy makes an enormous contribution to improve the investment climate of Liberia, ensure maximum use efficiency of land, increase land based revenues and improves equity in the access and use of land, thereby reducingsocial polarization andviolence. 2. Today, security of land tenure in today's Liberia is weak to non-existent. Some of the key problems includethe following: The legal distinction between public land and tribal lands lacks clarity, resulting in tensions between government, which has long asserted ownership of and the right to alienate large areas of land occupied by traditional communities, andthose communities, who regardthis landas their own Fleeingcitizens have left their property abandoned which in turn is occupied by squatters who can claim rights to the property through the law of adverse possession'. The old deed registration system which existed before the war did not adequately recordlandtransactions, makingit very difficult to track land sales. The war has resulted in missingdeeds, deed records and databases, resultingin high risk in the land market and in an epidemic of fraudulent land deed and other documents, allowingsales ofthe same piece of landto severalpeople. As a result of problems with the deed system, the court dockets are crowded with landdisputes which haveto be dealt with and cleared The delineation of administrative units in the counties can be described as chaotic. Today there is often overlap andjurisdictional ambiguity between the state-supported customary units (clan and paramount chieftaincies) with the townships and cities that are subject to the statutory system. In such cases, the key question is who is the relevantauthority Decision-makingauthority over land is fragmented among a half-dozen state agencies, without an effectivecoordinatinginstitution Key land admin Key land administration agencies have lost human and technical capital, and debilitatedand need to be rebuilt istration agencies have lost human andtechnicalcapital, and debilitatedandneedto be rebuilt? 3. The tenuous land tenure situation is complicated by the country's land history and the tensions and mistrust arisingfrom it. Liberia was formed by a colony of free slaves. The American Colonization Society (ACS) and other societies purchased land from tribes along the vii coast. When settlers began arriving in the 1820s, they received land grants from the ACS. A family would receive a substantial 25 acres of farmland and a town plot.This land was given as grants of "fee simple". This strong property right under Anglo-American common law has become what laymen today call "private ownership".* A holder in fee simple has the right to possessthe land in perpetuity; the right to exclude others from it; the right to use the land and retainthe fruits of its use; the right to devise land to heirs by will and to have such land pass to heirsaccordingto rulesof intestacy where there is no will; andthe rightto sell, mortgage, lease or otherwise alienate rightsover the land, temporarilyor permanently. 4. Through grants to the settlers, fee simple was introduced into a belt of land along the coast. Later, Liberia expanded by conquest southward and to the east. Land absorbed into Liberia as it expandedto the east was not purchasedfrom traditional authorities, but simply deemed public land by right of conquest. A key decision of the Liberian Supreme Court rationalizedthis by reference to US Supreme Court holdings on the taking of American Indian lands. 3 5. The 1956 land law, still applicable today, indicates that settler land can only be sold to settlers or to "civilized" Africans. Today, even with the rapidurbanization(50% of the total populationis urban) in the old settler cities, much of the land is held by these two groups. All other land to the interior is largely used by indigenousAfricans and is under customary land tenure. Although it is deemed a public land, its management is largely through the chieftaincy system. Thus, in Liberia, there somewhat less than half the countryheld in fee simple or private property, located largely in the coastal, settler areas. The land is bothurban and rural. There are some plantations and other commercial farm operationsthat are privatelyowned inthe interior, as well as some very large holdings granted as concessionsby government. The vast hinterlands in the interior of the country are primarily public lands, much of which is held and used by the inhabitatantsunder customary tenure. Key Problemswith the Land Law: 6. The land law of Liberiais pluralistic,andconsists of: a) a civil law of land, consisting of a common law of land derived from American common law at the creationofthe colony and developedsubsequently byjudicial decision, andstatutes supplementingthat common law; and b) a customary law of land based on the practices of traditional communities and recognized by the Constitutionas governing land not brought under the common law. 7. Although the application of these different laws to different areas of land is a common situation in former colonial Africa, the legal interface and interactions between these systems in Liberia is particularly vague and unsatisfactoryand requires reconsideration and reform. Other countries in the common law tradition in Africa have pursued strategies of integration of customary rules into the common law by statute or judicial decision, but this processhas hardlyoccurred in Liberia. 8. The civil law consists of the precedents of the Supreme Court of Liberia and relatively few statutes, the most significant of which deal with public land sales and the registration of land rights. This system of private property rights is fundamentally sound, promisingsubstantial security of tenure, creating incentives for investment and good husbandry ... Vlll of land resources, and allowing for the free functioning of land markets. But much in that land law is antiquated, either technically or politically, reflectingcolonial perspectives which do not accord with current equity and social values. Provisionsthat create place the indigenous people (as opposed to Amero-Liberians) at a disadvantage in accessing formal title to land should be modified, and the constitutionalprohibition of land ownership by foreigners should be carefully reassessed. 9. There is a need to re-examine the provisions of the laws concerning public land and its alienation and the law concerning the rules and regulationson the "hinterlands".All reflect extensive claims to state ownership of land and resources on land under customary law, and such claims have been the source of political tensions which contributed to the conflicts of the past decades. There is a need for redress, and a careful rebalancing of interests to both enhance rural livelihoods and permit the exploitation of valuable resources in the national interest. Such redress must, once standards are clear, involve survey and registration of both public landandthe landofrural communities. 10. The law concerning sale and concessionof public land are rudimentary, outdated and requirefundamentalreforms.-The provisionsas they stand, largely inthe Public LandAct, provide for prices at archaic levels, do nothingto assure that those granted land will develop it, and produce much less revenue than should be the case. They have also created substantial resentment among local people who have been denied use of the land. Legal reforms are long overdue. 11. In addition, there are fundamental issues of takings that need to be considered. Substantial areas of land taken from local communities for concessions have been only partially utilized, and some of this land should be returned to those communities. In addition, there is considerable irregular occupation of landof others, due to dislocationsduringthe war, to be dealt with. In order to encourage utilization of such land, and ease the problems relatedto land access for those affect by war, consideration should be given to a variety of mechanisms that would allow those occupantswho havebeenusingthe landfor some time to remainon the land, while at the same time recognizingthe legitimateclaims ofthose who ownedthe land. 12. The customary law of Liberian ethnic groups is remarkably poorly documented, and studies to establish a fundamental typology and parameters is a priority, as is documentationof the handling of customary law by the Liberian courts. It is important to understandnot only the substance ofthat law as appliedbut also its processesandthe institutions. For instance, reformers will need to understandthe extent to which officially recognized custom and administrationhave deviated from indigenous models, and the extent to which there exists a competitionbetweenrecognized and indigenous models on the ground. There is aneedto provide stronger recognition and protection to customary rights to land and to that end, to reorient Liberianlegaleducationto address customary as well as other law. 13. Considerationshould be given to the development, based on a clear land policy, of a new comprehensive Land Law. This will requireas a first step a careful, comprehensive and critical review and assessment of the law concerning land, a task which has not yet been undertaken. A comprehensive land law would needto harmonize the operation of these bodies of law, andperhapsprovidefor their eventual integration. ix LandRepistrationand Administration 14. Liberia has both a long-standing system of Deed Registrationand a more recently an introduced Land Registration System. The latter system is superior, and was intended to eventually replace the former, but this has not occurred due to the wars and lack o f financing. Its considerable advantage is that it allows for systematic review o f the confused land claims in an area and a relatively legally conclusive decided o f them. It is a system with special potential in post-conflict situations. But it can only be applied gradually, and so the deed registration system must be rehabilitated and maintained at the same time the newer system is piloted, refined and expanded. 15. The Deeds RegistrationSystem is in disarray. Records under that system have been scattered, damaged and in many cases destroyed, and this is encouraging widespread fraud and malpractice in land transactions. There is an urgent need to collect, consolidate and conserve these records, and to digitalize them for easy access in both land administration and land dispute settlement. There is also a need to consider measures for simplification o f deed registration processes. 16. The Land RegistrationSystem is supported by a relativelystrong and modernlaw, enacted in 1974 but incompletely piloted in Monrovia. There is a need to reconsider some provisions o f that law, in particular its treatment o f customary rights and statutory rights o f traditional communities. There is also a need to review carefully issues that arose during the early pilots under the 1974 law, and to carry out further pilots. 17. In order for the work above to be carried out effectively, there is a need to review the roles and responsibilities of the many government ministries and other agencies involved in land administration.There is a need to have one agency with overall responsibility for land, and for decentralization o f key decisions concerning land use and allocation. The objective should be a division o f authority which provided checks and balances and so minimizes abuses. Kev Problemswith Land DisputeResolution 18. Land disputes are rife in Liberia today, the result of the dislocations and illegal occupations o f land coming out o f the civil war, and a wave o f fraud and malpractice encouraged by the loss and destruction o f land rights documentation. The court system is in disarray and unable to cope adequately with the volume and complexity o fthese disputes. Kev Problemswith Land Institutions 19. The Ministry of Lands, Energy and Mines is the key institution for lands management. However it is placed within a Ministrythat has other, very pressing needs-energy tenure system - the laws, regulations, guidelines, institutional framework and administrative and mines. The existing Land Administration and Management systems are wanting. The land mechanisms by which people gain access to economic opportunities through land - can and should be improved. 20. Land administrationcapacitiesare very low at present and thereis an urgent need to re-capacitate the agenciesinvolved in land administration,notablythe Lands and Survey Department of the Ministry of Lands, Mines and Energy. Urgent needs include clearer guidance for field staff, better coordination o f land administration and local government, X construction of new facilities, retrainingof staff, and re-equippingof survey and other technical units. As a result of this lack of capacities, particularly for skilled professionals, the practice of land surveying is now in the hands of lower level technicians and unscrupulous practitioners whose actions have filled court dockets with unresolved landdisputes cases. As a result, security of tenure is virtually non-existent in Liberia; a situation which hampers development and fuels conflicts. 21. The Department of Land Surveys and Cartography is in a deplorable state. The Bureau of Lands & Surveys has been relocated and is now sharing space with the Liberian Cartographic Services in a dilapidated rented building with inadequate furniture, no electricity, and hardlyany office or technicalequipment. 22. Most countries in Africa have a cadastre that is at least partially functional. Currently, there is no cadastre and no effective and reliable land information system in Liberia. The cadastral survey and title adjudication activities of the Bureau of Lands & Surveys were disrupted as far back as the late 1970s and have never been resumed. Without the resumption of these activities the current deplorable land administration situation cannot be adequately addressed. There is a dire need for an integrated National Land InformationSystem which shall be interlinkedto a legal propertycadastre, fiscal cadastre, a mineralpropertycadastre, etc. These efforts should not focus only on central government level, but should include creation of new capacity at county level, inthe context of decentralization. 23. Institutional Frameworks for Land Management: There is no national land policy; and the national institutionalframework for land administrationand management is improperly designed, uncoordinated and ineffective. 24. To assure that the land tenure strategy of Liberia addresses these issues, a multifaceted strategy to land reform will need to be adopted that: a) addresses the conflict- related roots of land tenure; b) focuses on makingthe transition to a land tenure administrative system that is adaptive to the realities of the war (missing cadastres and land documents, squatters, speculative accumulation of land, emergence of a variety of landrelated groups, forms of proof, informal institutions, etc.) but makes administrative procedures more explicit, accountable and accessible; c) examines both short and longer-term changes to land policy and land administrationusing a participatoryapproach to ensure maximum support and by-in; and d) determines howto ensurethat landaccess is equitable acrossthe ruralhrban divide. RecommendedActions 25. Formation of a Land Commission is a key first step in organizing changes to the land tenure situation in Liberia. This is because the Land Commission is an inclusive body that will allow the views of all stakeholders to be expressed while moving forward on key land policy reform issues. There is considerable positive experience with such land commissions in post-conflict and other contexts in Africa, and those lessonsneed to be drawn upon. Key lessons from that experience are the need for a membershipthat reflects the larger society and not only government, the need for a strong secretariat, the importance of a strong public consultation process, and for a commission mandatethat includes follow throughon development of a national law policy and a land law. The Governance Reform Commission (GRC), mandated by the President to move forward the creationof such a Lands Commission, should take the initiative to assemble a donor support group for the land sector in general and the Land Commission in particular. That group should ideally headed by a multi-national donor. Funds for the xi Commission should be channeled through that multi-national organization, simplifying the burdenon the Commissionconnected with receivingand accounting for those funds. 26. Clearly, the line ministries and other agencies dealing with land cannot simply await the recommendations of a Land Commission. They will need to move forward in rebuilding their capacities, beginning to implement programs, and even with modest reforms o f their processes, for instance through regulations. Because of the number o f agencies dealing with land under the current legal framework, the Commission may provided, through informal working groups, the opportunity for these agencies to coordinate those initiatives and conform them to the prioritiesemerging from the deliberations o fthe Commission. 27. In terms of prioritization, there are certain rapid remediationmeasures that need to be made immediately.The chaos in the deeds registration and the dysfunction o f the courts system in addressing these issues calls for four rapid lines o f action: (1) a moratorium on issuing new deeds and sales o f large tracts o f land till there are more transparent measures and guidelines put in place, with ceilings on the size o f future public land sales; (2) review o f existing agricultural concessions to determine whether size reduction is appropriate, and an emphasis in granting new concessions upon models which allow smaller concessions for core estates with processing facilities while relying for much o f the production upon outgrowers working on their own smallholdings. a (3) urgent legislationfor the creation o f a Land Commission; (4) an internal intervention to restructure the institutional framework and improve the effective capacity o f the Department o f Lands, Surveys and Cartography, in order to arrest the proliferation of unprofessional surveys and fraudulent land transactions; and (5) a donor assisted intervention to formulate a national land administration project, which will address a range o f longer-term problems including policy deficiency, law reform and institutional framework. ReforminpLandLaw 28. In terms of reforminglandlaw, there is a needto re-examinethe provisionsof: 0 the law on public land and its alienation, 0 the law concerning ownership o f natural forests, and 0 the rules and regulations on the "hinterlands", the interior o f the country beyond the zones o f early Amero-Liberian settlement. 29. All the provisionsreflectextensive claims to state ownership of land and resources on landwhich has been governed by customary law. There is a need for a careful rebalancing o f interests to both enhance rural livelihoods and permit the exploitation o f valuable resources in the national interest. It is critical that government recognize the property rights o f local communities. It will be important to survey and register both the land o f rural communities and the remaining public land. As indicated earlier, it would be preferable if Government could move slowly and very carefully on with any public land sales and concessions until these issues are resolved. The criteria and pricing o f such sales and concessions will ultimately need serious reconsideration. 30. In addition, there are fundamental issues of equity that need to be considered. Substantial areas o f land taken from local communities for concessions have been left largely utilized, and some o f this land should be returned to those communities. There i s considerable irregular occupation o f land o f others, due to dislocations during the war, and to encourage utilization o f such land there is a need to find ways to allow those occupants who have been using xii the landproductivelyinrecent years to remainonthe land, while at the same time recognizingthe legitimateclaims ofthose who ownthe land. 31. Consideration should be given to the development, based on a clear land policy, of a comprehensive land law that harmonizes the operation of statutory and customary law and addressesthe equity issuesoriginatinginLiberia's colonial past. ReforminPLand Repistrationand Administration 32. In terms of Land Administration reform, clearly the deed registration system needs change. One key problem is that there are too many institutions involved in the registry system, and there is a needto simplify and bring the system under one institution, preferablythe Ministry of Lands, Mines and,Energy. The Land (Title) Registration System, which is not implemented, is based on quite a good law, but it is not well known or tested. Piloting this, with lessons learnt from the past, would be important. 33. The major task in the land administration area is rebuilding the human and capital items that form the basis of the land administrationsystem: trained staff, buildings, survey equipment, and vehicles. It will take many years for the Land Registration System to be applied systematicallynationwide, and a process for sporadic registrationof transactions will be needed in areas not yet covered by the new system. The Deed Registration System has been playing this role, and needs to be upgraded. In terms of Land Administration machinery, the Land RegistrationLaw's provisionson implementationmachinery are helpful. It does not set up parallel registries. Rather, those institutionsthat are already involved in Deed Registration(The Land Commissioner, the Surveyor, the Probate Court, the Registrar in the National Center for Documentationand Archives) are responsible for Land Registration. At County Level, there is one system to be strengthened. 34. In the meantime, the MLME needs to take the lead in drawing together the various institutions involved to ensure the existing Deed Registrationsystem is working. It could assemble a technical task force with members from all the key agencies to hold county- level training and problem-solving workshops with staff there. Based on four or five these workshops, a set of interimguidelinescouldbe drafted by the task force, reviewedat a workshop of select county levelstaff in Monrovia, andthen issued. This activity could also generate a list of proposed legal amendments regardingDeed Registrationand Public Land Sales. MLME should then seek financial assistance to prepare for a re-pilotingof the RegisteredLandLaw. 35. Finally, there is urgent work to be done in the conservation of records of land rights, many of them damaged and deteriorating, in inadequate storage facilities at various locations. This is not an exercise in history, but an urgent task of conservingthe proof neededto prove and defend property rights. This is an area where a Lands Commission, when such a Commission is appointed, could take the lead in an initiative that would involve the various institutionsholding land records and which needs to be involved in remedyingthe present very unsatisfactory situation. ImprovinpLandDispute ResolutionSvstems 36. Land disputes are endemic in Liberia today. The situation is growingworse and will do so until the land administration and justice administration systems have been fully resuscitated. The first task involved, however, should be a careful inventory and analysis of the backlogof cases, to get a better handleon the task. A secondtask is the categorizationof disputes ... Xlll to identify legal uncertainties that are contributing to those disputes, for urgent resolution. This could eliminate a substantial number o f cases. The third task i s development o f a strategy that combines in an effective fashion the various dispute-settlement initiatives underway: 1) ad-hoc commissions for notorious and potentially explosive land disputes; 2) court adjudication o f cases concerning land, and 3) NGO-led alternative dispute resolution. This would include a decision as to whether a special Land Court is needed, or as the consultant suspects, strengthening the Circuit Courts intheir capacity to process land cases might be a more effective approach. 37. In additionto institutionaland processsolutions for dispute settlement, urgent rule- making on key issues affecting many disputants can have important impacts. For example, rules concerning the following matters have in other countries radically facilitated settlement o f the most common types o f land disputes: Legitimacy and legality o f specific types o f claim, for instance claims o f former landholders from long ago, resolved by a law that clearly made those claims unviable. Rules affecting many cases o f land disputes cause by war, such as criteria for abandonment, which once clarified resulted inthe dropping o f many claims; Creation o f compensation entitlement for those affected when government dispositions o f land were found to have overridden other claims, turning those claims into claims for compensation rather than land disputes. ImDrovinPLand Institutions 38. The courts and land institutions clearly need rebuilding.They lack not only trained staff butthe copies o f the Liberian Code Revised and the Liberian Law Reports, which reports the decisions o f the Supreme Court, the precedents which should guide the lower courts in their decisions. A common law system cannot function without these. The buildingsonce occupied by courts have sometimes been destroyed or co-opted for other government purposes. There is a need for rebuilding o f both physical and human capital. 39. In terms of the availability of skilled professionals, there is an acute shortage of trained land professionals; hence, the practice o f land surveying is now in the hands o f lower level technicians and unscrupulous practitioners whose actions have filled court dockets with unresolved land disputes cases. There is no cadastre and no effective and reliable land information system. As a result, security o f tenure is virtually non-existent in Liberia; a situation which hampers development and fuels conflicts. 40. The Department of Land Surveys and Cartography is in a deplorable state. The Bureau o f Lands & Surveys has been relocated from its rented building on 9~ Street, Sinkor, and is now sharing space with the Liberian Cartographic Services in a dilapidated rented building with inadequate furniture, no electricity, and hardly any office equipment. There is a good quantity o f topographic and cadastral maps available between the two Bureaus, which are currently at risk for lack o f adequate storage. These two essential national institutions must be properly housed, and adequately equipped, if they are to be effective in dealing with the chaotic land situation. 41. The cadastral survey and title adjudication activities of the Bureau of Lands & Surveyswere disrupted as far back as the late 1970s and have never been resumed.Without the resumption o f these activities the current deplorable land administration situation cannot be adequately addressed. There is a dire need for an integrated National Land Information System xiv which shall be interlinked to a legal property cadastre, fiscal cadastre, a mineral property cadastre, etc. Without adequate information on real properties, the problems of land disputes, illegal sales, improper urban construction, and squatter encroachments cannot be resolved. 42. I t is imperative that Liberia beginsto take action now towards Land Tenure Land AdministrationReform. There is currentlya post-conflictwindow of opportunitywhich should not be missed, and the Government should treat this as an urgent matter. The next sections detail the specific issues and recommendations that can be followed to improve landtenure security in Liberia. xv Introduction What is Land Tenure? 1. Tenure is a system o f rights regulating the ownership or use o f land. It can exist formally, as a legal document, or informally, as a result of orally established local property rights for which there is a community-based consensus. It is sometimes referred to as a property rights regime. Property rights regimes have two components: property rights, which are the bundles o f entitlements defining the rights and duties o f the owners and users in the use o fthe land resource, and property rules, which are the rules under which those rights and duties are exercised (Hanna and Munasinghe, 1995). The collection o f entitlements, plus the rules under which they are used, makes up the rights that often embody people's expectations about their claim to resources (Bromley, 1989). 2. Within the vast body o f property rightdtenure literature, land tenure security has generally been defined as the level o f assurance an individual has o f his or her claim to a piece o f property based on hidher bundle of entitlements. In the developed world, this level o f assurance is normally high because property rights exist as legal documents giving individuals clearly defined rights, formally recorded, and backed up by effective systems o f adjudication and law enforcement. In Africa, property rights may have a) a formal legal basis or, b) in the case o f customary land, have no formal, legal basis but exist as informal rules that have become norms o f society based on social differentiation, productivity and membership to particular sub-sets o f community (Place, 1995). While both sets o f arrangements can provide security of land tenure, they often fail to do so. One often finds, as in Liberia, that the customary land tenure systems have been undermined by state action and claims to public ownership. They are in addition unable to manage conflicting claims between community members and outsiders. The formal systems, on the other hand, are often weak, are not supported by effective systems o f adjudication and enforcement, and lack legitimacy inthe eyes o f rural people. The Role of LandTenure Systems inthe GrowthAgenda 3. The central role o f secure property rights in growth has been shown in the literature (North, 1981). Property rights confer to its holders an unparalleled sense o f security that enhances their ability to invest in the land, fostering growth. Land tenure systems, and the land rights they confer, influence economic growth by increasing the incentives o f households and individuals to invest, and sometimes will provide them with better credit access. Clearly, the ability to make use o f productive land will depend on the policies in areas beyond land policies (such as agricultural policies, subsidies, input prices, etc), but at the base, without secure property rights, longterm investments are unlikely to take place (Nkrumah et al. 2003). 4. If land rights are poorly defined, or restrict access to certain groups or individuals on the basis o f race, ethnicity or origin, this becomes a pivotal point o f conflict which can escalate, as in the case o f Liberia. Inthese cases, valuable resources are diverted from other purposes such as investment. Without secure land rights, landowners are also less willing to rent out their land, which may impede their ability and willingness to engage in nonagricultural employment (Deninger, 2003). 5. To implement the vision of increased economic development, social equity, and a transparent and effective post-conflict government, the Government of Liberia has outlined key transitionsthat need to be accomplished. These includethe development of infrastructure(roads, electricity), schools,job creation and transitionfrom war, civil conflict and social polarizationto a well functioning society inwhich economic opportunitiesare fostered and distributedequitably. All of these infrastructural investments are made to fuel growth in a stagnant economy. Yet, growth without an effective land policy and land rights is often fraught with conflict and confusion, and in Africa, risk to assets has been put forward as a crucial determinant of growth failure (Collier and Gunning, 1998).Clearly, land policy can make an enormous contribution to improve the investment climate of Liberia, ensure maximumuse efficiency of land, increase land based revenues and improves equity in the access and use of land, thereby reducing social polarizationandviolence. 6. More specifically, land tenure systems have a key role to play in a country's growth bothdirectly and indirectly: In the rural sector, access to land, coupled with secure property rights, increases investment, agricultural productivity and adoption of agricultural innovations, resulting infood security andeconomic growth. Inurbanand peri-urbanareas, secure land and property have direct links to growth and poverty reduction by the connection to land and the action of land markets, which redistributewealth by giving access to appreciation in land values and can transfer land to more productiveusers. Secure land also promotes growth by expanding credit based on the use of secure evidence of propertyrights(such as titles or other evidence/proof)to collaterize loans. Private investments are contingent on secure forms of land tenure and, in some cases, transferabilityof rightsto land. A well-establishedlandtenure system makes possible enhancement of public investment throughmechanisms, includinglandtaxes, to providepredictableand sufficientrevenues for local government, to encourage efficient land use and to discourage speculative accumulationof landfor nonproductive purpose^.^ Property taxation or concession arrangements(inthe case of naturalresource allocations) when estimated, collected and used transparently, can be an important source of government income. The economic potentialthat is lockedup in underutilizedlandcan be made availableina wide variety of ways involving different forms of rights that improves access to economic opportunity through equitable means, thereby allowing the country to overcome high levelsof inequitythat havecausedsocial polarizationandviolence. The Role of Secure Land Rights inPoverty Reduction 7. For most of the African poor, land is the primary means for generatinga livelihood and a principal means for any investments. It is often a source of wealth and the individuals who are able to amass more land often become the wealthiest in society. By allowing them to make productive use of their own labor (or family labor), land ownership reduces vulnerability to external shocks. This land is often the source of subsistence and marketable surpluses and impacts their ability to access financial markets. In Africa, the possession of land also confers socialstatus and leadershipwithin a society. Accordingto Deninger, researchershave recognized 2 that providing poor people with access to land, and improving their ability to use that land i s central to reducing poverty. 8. In Liberia, the poorest in society live on customary land. In many African societies, it is long recognized that customary land can confer adequate land security. However, in the particular case o f Liberia, there are several historical problems that have made this security tenuous: a) Traditional communities, the country's towns and villages, have their customary territories. Shifting cultivation in Liberia on customary land has meant that traditionally farmers require relatively large allocations o f land, but land is also held by the community for huntingand other less intensive land uses. While the use o f this land by local people has been governed by customary land tenure, the Liberian state has long claimed ultimate ownership o f this land, and large areas have been alienated by "public land sales" carried on from the office o f the President. 9. The key role o f land access and secure land tenure in poverty reduction is reflected in the substantial land sector reform content in the recently approved Liberian Poverty Reduction Strategy (PRS) (Government o f Liberia, 2008). The relevant excerpt is appended to this report as Annex J. Land Rights, Governanceand Equity 10. The ability o f local leaders to control customary land has traditionally been a major source o f political and economic power. Inthe case above, local traditional leaders were partially responsible for the alienation and impoverishment o fthe youth'. However, an examination o f the history o f Liberia shows that this issue o f lands rights and governance is the root cause for many o f the problems seen today. Liberia was formed by a colony o f ex-slaves from the United States (Amero-Liberians) who initially carved out their territory from Monrovia and other areas such as Montserrado County, including Sinkor and Bushrod Island. This was later expanded to other areas along the coast-line. These early settler territories were based on land purchased from local chiefs and a formal body o f law was created for the management and confer o f ownership o f these lands to settler communities. Today, though the territory under private ownership has greatly expanded, this differentiation still exists and the land law in application today was created for these settler territories. Land not titled under that system has not statute governing it and is considered as public land, left largely to the management o f local chiefs. This system is markedly different from the position in other countries in Africa where the formal law usually applies to urban lands and the customary law to ruraVcommunity lands. The Liberian land laws, described later in the paper, allow settlers to apply for large tracts o f public land. However, the law does not allow non-settler communities to gain access to lands in settler areas except in particular cases where the indigenous African i s considered to be "civilized". This inequity in the creation and application o f the laws has been a source o f considerable tension, particularly since the law enables settler communities or "civilized" Africans to garner huge tracts o f community land for the price o f 50 cents an acre. This law still remains unchanged and while the actual market may require a higher price for tracts o f communal land (about $125 an acre), it is still very cheap. 11. In summary, land under customary tenure has beentreated as public land, which can be disposed by the state by sale. This uneven playing field was seen by the indigenous Africans in the interior as inequitable; the resentments this engendered contributed to the fall of the civilian government in Liberia in 1980 and the ensuing chaos. This underlying structural problem o f Liberia's land tenure system should not be forgotten in reviewing the more technical issues o f land law and registration. 3 Land Rights,PoliticalSecurity and Sustainable Development 12. Enter the wars in Liberia. These have, at their core, been about equity and land. Now the dust has settled and what remains of the land tenure systems that were so carefully created, legalized and institutionalized? The institutionsthat were created to manage the acquisition of landwere desertedduringthe war, their buildingsbombed and most of the documentation, which existed in paper form, scattered, destroyed or burnt. The fleeing citizens, including many from the settler communities, exited with their skills and knowledge and left their properties behind. The laws on which the landtenure system was formally created still remain in effect, steeped on the adversarial societal relations of the past era. The old policies and much documentation are gone and the deed record system is in total disarray. Without a doubt, the landtenure system in Liberia of today is in dire straits. A 2006 assessmentby the Ministry of Land, Minesand Energy makethe seriousness of the situationclear! 13. There is no national land policy; and the national institutional framework for land administration and management is improperly designed, uncoordinated and ineffective. No agency of the Central Government seems to be responsible for or engaged in the managementof public land; as such the public domain is apportioned and allocated for various uses without land use regulation; and government can hardly find land for public buildings and other essential public uses in urban areas, includingspecificallythe capital, Monrovia7. 14. There is an acute shortage of trained land professionals; hence, practice of land surveying is now in the hands of lower level technicians and unscrupulous practitioners whose actions have filled court dockets with unresolved landdisputes cases. There is no cadastre and no effective and reliable land information system. As a result, security of tenure is virtually non existent inLiberia; a situationwhich hampersdevelopment and fuels conflicts. 15. This assessment is completely accurate. The World Bank team had to really turn the Libraries and Archives upside down searching for key documents, most of which were gone. A few documents, taken home by caringprofessionals and guarded like treasure were hunted down, quickly photocopied and returned. Critical records have been lost or destroyed. In these circumstances there are no reliable records, or sources of information, on land distribution, land transactions, or land pricing. Earlier capacities in administration of land and justice have been dissipatedandmust be reconstituted. A sense of insecurityhas underminedthe confidence of both peasant and commercial investors. The war has also created new land problems: land occupations by displaced persons and simple opportunists and an epidemic of new land disputes. Taking advantage of the disorder and loss of landrecords, forgery and fraudulent land claims are rampant. 16. The problem is how the nation can begin to put this system back in order without redressingthe wrongs of old andwithout puttinga new modernsystem in place that can truly take Liberia forward. The task is immense but has to be done. Without a functional and credible land tenure system, secure investment cannot take place. The Liberian President is right when she highlightsthe importance of landtenure as key to the full recovery of Liberia. One fact is certain; the very political security of this country rests partially upon making sure this land issue is addressedas a priority. 17. Despite all this distressing news of the land tenure system, there is hope for Liberia. Some African countries which experienced virtual melt-downs, yesterday's "failed states", have upon recovery been amongst the most innovative in reformingtheir land policies and land laws. Uganda and Mozambique are cases in point. Disasters disorganize and dilute vested interests, and 4 can create a new sense of the need to pull together to develop lastingsolutions.The five years after the end of conflict is a window of opportunity not just for rebuildingwhat existed before, but for badlyneededreforms. The Aim of this Paper 18. Given the post-conflict situation in Liberia and the state of land tenure institutions, records and data, this paper is not many things. It is not a study of the land tenure systems in Liberia-there is little pre-existinginformationon the intricaciesof the old tenure system, tenure maps, sociological surveys etc. The paper is equally not a study of land markets or land institutions because land markets are barely functional and where they are, are significantly distorted. Nor is it a study on landrevenuesand landtaxes, simply becauseno baselinedata exists that we could find. So what exactly is the purpose of the study?In discussion with the Liberian Government, it becameclear that what is really needed is technicalassistanceto begin to reform landtenure policies in Liberia from the ground up. They didn't want a study that wouldjust sit on the shelves. They wanted somethingthey couldtake and apply immediatelyand use as they began their processof landreform and they were very clear about this. They wanted something they couldalso take to donors and say, couldyou fund this aspect or this?This paper is therefore a response to what the Government of Liberia says it wants. For them, what is really crucial at this stage is to come out with a study that can show what needsto be reformed and how, starting right from the legal framework for land(becausethis is wherethe equityand security issuesbegin from) right through to the administrationof the law. This is what the study delivers and this is why it is heavy on the legalframework- becausewe're starting to build a land tenure system and you needto start from the ground-fromthe legal framework on upblock by block. 19. Chapter one of the papers focuses on describing the post-conflict situation in Liberia and how this has impacted land security in Liberia. Finally, it asks, how can we restore land tenure security to Liberia? Chapter two and chapter three tackle this question by delving into the legal framework for state land and then for customary land. The chapter assesses the legal issues and makes recommendationsfor strengthening the legal system to provide adequate security for all users. Chapter four examines the land administration system-what exists, what are the problems and how can the nation repair this defunct system while moving into the 21" century and using a registration system that has been modeled throughout the world. Chapter five examines land institutions and their capacity constraints and Chapter six breaks down all the problems with recommended and prioritizedsolutions. Finally, Chapter seven assesses the ways in which the World Bank and other donors can assist Liberia as it moves forward with its land reform agenda. Within these broad chapters, the main pressure points are discussed - a) the disconnect between customary tenure and statutory land tenure; b) land appropriation and customary tenure; c) problems with deeds; d) land registration and administration on settler & urban lands; e) land institutions and f) land disputes. A legal and policy lens is applied as an overlay to discussingand relievingthese pressurepoints. 20. What is encouraging is that at the time this study was launched, at least 4 other donors and researchers arrived in Liberia to study the land tenure question and a coordination group among these donors and researchers has been formed. Part of this response was because the Governmenthadsolicitedhelp from internationalgroups to assist them on helpingto putthe land tenure system to rights. A study on the legal competences of the various state institutionswith land roles has been conducted and major study on customary land tenure and gender has been launched, one which will take severalyears to complete. The Governance Commission(GC) has begunto form a Lands Commissionandthe World Bank, through this study's funds, has provided technical assistanceto the GRC onthe formationofthe LandCommission. 5 21. Liberia needsto seize these opportunities, and the call by the President for the creation of a Lands Commission augurs well for the future. The experience with such Commissions elsewhere is encouraging; they have achieved breakthroughs in reforming land policy and law. The internationaldonor community is aware of the centrality of land matters, and will hopefully be willing to support boththe design of reformsandtheir implementation. 6 Chapter One The Post-Conflict Policy Context: Restoring Security of Land Tenure 1.1 The HistoricalContext 1. There is a dual land tenure system in Liberia- formal and customary land tenure. The formal land law written in 1956 primarily refers to Amero-Liberian settlers/immigrantsfrom the U.S in what was primarily their territory. This land is under a deed system and is considered private propertyor freehold. All other landto the interior is consideredpublic landand is largely used by indigenous Africans. This land is mainly under customary landtenure. Thus, in Liberia, there is a limited amount of landheld infreeholdor privateproperty, located largely in urbanized, settler areas. There is some plantationand other commercial farm operations that are privately owned andthe vast hinterlandsare public lands under customary tenure. 2. According to the 1956 Public Lands Law which remains largely unchanged, and the 1974*amendment which deals with the land registrationsystem, land in the settler areas of Liberia, such as Monrovia, is held in fee simple, goingback to the earliest settlers to Liberia who were entitled to either a town lot or ten acres of farm land (or twenty-five if married). A deed in fee simple for this land was obtained when the settler became a naturalizedcitizen or had 2 acres of landunder cultivation(ifthe landwas farm land) or a house erected if it was town land. When evidence was providedthat this landhad addedvalue, the landcommissioner or register of deeds gave the user a deed for the land which was then submitted to the President for signature. According to the law, land could only be transferred after title was obtained but use-right could be transferred to heirs if the title had not been obtained before death. Land, then and now, can only be held by Liberian citizens who have to be of black racial origin. In terms of access by indigenous Africans, public lands in setter areas would only, by law, be deeded in fee simple to "civilized9 indigenous people" if they either erected a house, similar to settlers or plantedtrees bearingmarketable produce, inthe case of farm land. 3. Thus, according to the same law, African indigenous people, who constitute the majority of Liberian society, could not usually access public lands for ownership under fee simple or deed. This aspect of the law remains legally unchanged. IndigenousAfrican access to landwas through customary landtenure unless he/she became "civilized". In terms of customary landtenure, there is no formal written customary land law in Liberia. However, all lands in the designated indigenous areas come under a system of tenure based on traditional customary law. Within that system, there is no individual ownership, but instead the state recognizes the communal right to land. Hence, individuals have land use rights but cannot own land. Land is under the control of the chief who has a communal deed to tribal areas and administers its distribution. The size of the area farmed depends on the household size and the labor requirements it can meet. In the early 1980s, the average subsistence household of 5-7 people cultivated 3 acres of upland rice and 1 to 2 acres of other crops. Amero-Liberian settlers can purchase public land held by rural communities but first have to first go to the chief to get permission andpay a tokenof good intention.The purchaser then follows the letter of the law and the procedure to have this land deeded. This unequal access to private land has become one pressure point that the Government is seekingto address as it moves forward with the landreform agenda. 7 1.2. Post-Conflict Competitionand Confusionover Land in Rural and Urban Lands 4. There are many land-related reasons for the wars in Liberia. The military coup which brought Samuel Doe to power and began the descent of Liberia into political chaos was fuelled by resentment by indigenous Liberians of Amero-Liberian appropriations of land and more generally the Amero-Liberian dominance of politics and society. But the indigenous Liberianswere not a unifiedforce, and conflict amongthem over land andterritoryemerged. The different points of competitionfor land are: a) the separate and unequal access to land and other resources of Amero-Liberians compared with indigenous Liberians and alliances created by leaders who stood for one group or the other; b) the inter-tribalconflict between the Mandingos and other indigenous ethnic groups, spurred in part by their close relationshipto the ruling elites (Konneh, 1996)"; and, c) a long-termagrarian crisis based on inter-generationalcrisis and the failure of rural institutions, providingthe warring militiaswith a ready supply of young recruits (Richards et al, 2005)". This was becausethe chiefs usedthe traditional system as key means to control land and labour in the rural areas. Nimba and Lofa counties were the hardest hit by the war as a result ofthese issues (Richards, 200512). Liberiansdiffer as to the relativeimportance of these inthe descent of Liberiaintocivil war. It is difficult, for instance, to distinguishcompetition for land from competitionfor politicalcontrol of territory. Conflict over land figures prominently in most serious studies of the issue (e.g., Levitt 2005), but further studies are neededto providea morenuancedunderstandingofthe relativeroleofthe differentfactors noted. 5. In addition, the land problems in Liberia have been acerbated by the conflict, which only exposed the root of the problem. Concurrently, the administrative and judicial systems required to handle land matters have been crippled by the war. Unruh points out that during the conflict, multiple new administrativeunits with poorly defined boundaries were created, so that today "there is often overlap and jurisdictional ambiguity between the state- subject to the statutory system... and boundary disputes between rural communities are being supported customary units of clan and paramount chieftaincies with the townships and cities broughtto the Ministryof InternalAffairs almost daily." Finally,he notesthat authority over land itself is under challenge, both the authority of pre-conflict legal constructs and the authority of today's officials to implementthem: "Questions are arisingregardingthe authority of officials in landmatters, particularlydid (anddo) they have the authority to sell land or to grant squatters' rights?In communities, which rely upon usufiuct rights, people (especiallyyouth) are questioningthe process by which chiefs were able to authorize the deeding of the community's land, either to "strangers" or local elites during and beforethe war..." 6. Today's chaos in the landsector (see Box) is therefore a result of the pre-war land context and the disrupting effect of the war. Trying to piece out the underlyingcauses means bothgoing into the historicalcontext (section 1.1) as well as examining the impact ofthe war on landarrangements on bothcustomary land and landunder formaltenure. 8 1.3 Endemic Land Disputes: Svmptomsof Land Tenure Problems 7. The most significant indicator that there is something wrong with the tenure system in Liberia is the number of disputecases inthe courts. Accordingto all verbalreports, this number was extremely high. It was difficult to find hard data on levels of land disputes, but the Governance Reform Commission's 2007 draft paper on "The Way Forward" notes that in 2006 the NorwegianRefugeeCouncilfound that land and propertydisputes were among the top four security issues in communities in ten of Liberia's fifteen counties, and that in four counties (Lofa, GrandGedeh, Sinoe, and Maryland), land disputes were the most common issue. 8. In Liberia, disputestake many forms (Box 2). There are disputes causedby persons displaced in the war taking up cultivationon the land of others, who may be absent. This has occurred on abandoned farms and, in some case, local inhabitants who worked on commercial operations before the war have done the same, when these estates were abandoned. This was . evident in the former sugar cane operations visited in Millsburg in MontserradoCounty, not far from Monrovia.Second, in some cases those farming the land hadnegotiatedannual leases with share rents with the owners or their agents from Monrovia, in other cases they hadnot. Disputes also occur when displaced landowners return and want their land back. This occurs throughout 9 the country, but has drawn attention especially in the Hinterlands. Some of these disputes can have an ethnic edge andthreaten new hostilities. InNimbaCounty, Mandingosrefugeesreturning from Guinea found Gio and Mano inhabitants in possession of their urban commercialpremises. This has stirred old resentments and drawn public attention. However, those who know these areas well note that the disputes of this nature also exist between members of the same tribe and among members of other tribes. In the Nimba case, the President has appointed an ad hoc presidentialcommission chaired by the Minister of InternalAffairs to try to find solutions.It had not given its final report as ofNovember, 2007, though it hadproduceda brief interimrep01-t.'~ 9. Unruh (2007c), reviewing the experience in dispute settlement in post-conflict states, cites the case of Mozambique to make the point that disputes often exist because the substantive law is inadequate. This means that clarification of areas of legal ambiguity can dramatically reduce outstanding cases. He notes the positive role played there by the effective categorizationof disputes. This allowed some categories of disputes to be resolved en masse by a new law, decree or legal action. He lists: 1) legitimacyand legality of specifictypes of claimants, in particularformer colonialists, resolved by a law that resulted inthe dismissal of large numbers of claims; 2) disputes of a type that came about due to the war, such as the criteria for abandonment which once clarified, resulting in the dropping of many claims; 3) disputes due to government dispositions of land having overridden other claims, by turning those other claims into entitlements to compensation, and 4) dismissal of disputes involving claims made in bad faith. 10. But even when the law is clear, there will be disputes, and as in Liberia, those discussingthe problemturn to more effective forms of dispute resolution.Internationally,the primary trend notable internationallyis the increasing reliance on Alternative Dispute Resolution (ADR). Inhas been increasinglyappreciatedthat courts, notjust in Liberiabut in most places, are too formal and expensive to be usedeffectively by the poor. Complex laws, corruptionofjudicial processes, and the "law's delays" make many potential litigants happy to settle for cheaper and more expeditiousproceduresof dispute resolution.In addition, finding compromise solutions that do not humiliate a clear "loser" can help in the restoration of more-or-less normal relations among the parties. That is especially important when the parties must continue to live and work together. It can also be especially usefulwhere there have been periods of normative confusion, and claimants all feel that they have a clear right, perhaps under different laws of different governments or dispositionsof different localofficials. 10 8. Disputesover abandonedprivately heldrubber farms, especiallywhen original owners are absent. 9. Incommunitiesthat were destroyedduring the conflict, disputes over house plotsare fiequent. 11. In general, two broad distinctionscan be made between lands in Liberia- a) settler lands, which correspond not exactly but largely to urbanized areas in Monrovia and alongthe coast, and b) hinterland areas, which are customary land areas largely occupied by rural indigenous smallholders in the interior or the country. Approximately 50% o f Liberia's populationnow lives inurban areas (Figure l), many o f whom have no access to land. The key problems on settler lands are squatters, deed fraud, missingdeeds, land disputes and confusion regarding who can access land in these areas. The key problems on customary lands are appropriation o f lands, inadequate management o f customary land under the law, lack o f clarity regarding adjudication o f disputes, overlap andjurisdictional ambiguity between neighboring ethnic groups, lack o f access to lands inthe case o f women and youth groups and insecurity o f tenure for certain groups. At the National level, the land institutions that are to govern the land tenure arrangements are understaffed, lack relevant skills and have little or no access to records, databases, equipment, etc that is essential for their job. Urbanizationlevel(Liberia) 70 60 50 40 Percent 30 20 10 0 . m m mo mm o ~ m m m m oo oo - o o- o Nmo Noo - - - N N N N N N Year Figure 1: Projected Urbanization Level (Unhabitat, 2000) 12. For the settlerhrban and smallholder sector there are five broad types of land holding, with different levels of tenure security: 1) deed holders with a comparatively high degree o f tenure security, particularly before the war; 2) customary occupation without a deed 11 resultingin relative security within the customary domain; 3) rental or leasing of land with lower security; 4) `strangers' or `borrowers of landwho are not from a local area who do not rent, but are allowedvery temporary and insecure access to land, and must supply a token amount of crop produce to the owner to acknowledge that the land is owned by another-in essence acknowledgingthat the land is beingloaned; and 5) squatters, who althoughcan be evictedat any time they are discovered by the owner, are also the most aggressive about attempting claim through different forms of adverse possession. While there is a comparative difference in tenure security between the types of holding, all suffer of poor tenure security and issues emerge when the different types interact.The subsections below describe the primary problems with each type of holding. Deed/ document holdings-This applies largely to land in settler areas. While a deed holder is one of the most secure arrangements for a small or large holder, the actual insecurity of this form of holdingthat althoughhe holds the deed, in a post-conflict situation, the fact that you have the deed may not necessarily make you the owner. The lack of a registry in land means that no systematic records system exists whereby one can determine the true owner of land, to whom all or part has been sold, boundary locations, inheritance, the role and validity of historical deeds, and fraud. This puts the legitimate deed holder in a vulnerableposition. Thus the fear of counter claims (based on investments made by tenants or documents held by others) is based on commonplace experience. The lack of a national land registry results in two problems, 1) the growth over time of enormous confusion over what has been sold, subdivided, inherited, etc., to whom. The result is an inability to be certain of the owner, area purchased, or existingcounter claims. 2) The creation of a situation whereby opportunists are able to purposefully make multiple sales regarding the same land, with little or no repercussions. In one sense this is a variation of the `culture of impunity' that exists after a war. This has resultedin the value of a deed as a piece of evidence (argument for claim) being decreased relative to other forms of evidence for claim. So that while a deed can be a good piece of evidence, because there are so many problems regardinglanddeeds it is not near as good as it couldbe, and thus does not provide adequate tenure security in the current institutional environment. In addition, individual deeds are generally issued for land in settler areas. Customary holdings-Whilethere are equity issues with regard to customary versus deeded land, the very nature of the informal structure of customary land meant that the sector played a large and positive role in the reintegrationand resettlement of dislocates after the war. There are only a few issues of significant and immediate concern with regards to this type of land in terms of direct impacts of the war-there is a profound lack of confidence among smallholders regardingforms of customary courts and their ability to fairly adjudicate land issues. This has ledto an increase in `trial by ordeal14'for many issues includingland conflicts. Rentaland leasedholdings-For tenants, their comparative insecurityrelegates them to annual crops only, with trees crops or other forms of permanent improvements specifically prohibited.Often rented land is only for one croppingseason in order to ensure that permanent claims will not be pursued. Rental price varies and often is tied to a percentage of the crop yield. Often however, rented and leased land only occurs between neighbors and relatives who know each other well and are able to operationalizeforms of informal trust. Even so, those renting or leasing land notes that ifthe crop is too successful, the agreement may be broken so that the owner can 12 retake the land including the standing crop. This is a disincentive to make even temporary investments in land. Contract rental/leasing arrangements among people who are not familiar with each other are rare. This is most likely due to the low capacity o f the legal structure to enforce contracts, and the low trust in the legal structure by customary smallholders. This situation is particularly difficult for the poorest in society and the marginalized such as migrants from other ethnic groups or the youth. Borrowedholdings-Those who borrow holdings can involve both people who know each other (lender and borrower) as well as strangers to the lender who essentially is `begging land.' Inthis case planting trees is strongly prohibited, and a token amount o f the crop yield is provided to the owner, in order to acknowledge that the borrower i s not the owner o f the land and will not claim land. This is a significantly insecure form o f tenancy and the smallest infraction can see the borrower evicted. Squatter holdings-Squatter holding constitute a large problem in both rural and urban areas. Insome cases squatters can be seen as the most aggressive in pursuing forms o f land claim involving tree planting or other improvements, and adverse possession. In Monrovia, after many settlers fled, squatters moved into these properties. According to the law o f adverse possession, squatters can legitimately claim land after 20 years o f occupation with no attempt by the property owner to evict. There is some discussion among the legal sector in Monrovia as to whether the 14 year civil war period should or should not be counted toward the 20 year period regarding adverse possession claims. A formal legal decision is needed in the near- term on this issue, as many claims usingthe 14 year war period will be likely soon. Eviction o f squatters risks social unrest if carried out on a large scale, is very visible, or if it involves ex-combatants. Tenure security is so low for squatters that in cases they can have little to lose, and so can attempt to claim land in the hopes that any resulting dispute will result in some form o f compensation at a minimum. 1.4 The Impactof Post-Conflict Insecurityon Liberia's Land Tenure System 13. Baldly stated, the most damaging impact of failure to resolve post-conflict confusions over land is the danger that Liberia will slide back into conflict. Liberian policy- makers are well aware o f this danger and the Government will certainly seek to address it. The challenge is not simply restoring the past, but framing land policy and law that enhance both equity and efficiency objectives. Any new land policy and law must facilitate economic development, improving access to and stimulating investment in land. New land policy and law cannot be simply a long negotiation o f past and present grievances. 14. What does the economic development of Liberia require in terms of a system of real propertyand land administration?It requires an end to the uncertainties discussed above. Uncertainty equals risk and discourages investment and good husbandry. What is required is security o f tenure? It is a state o f mind: the confident expectation by a landholder that the holder and his or her family can continue to use the land indefinitely, or at least for a very long time. That belief strengthens a landholder's incentives to husband and invest in the land asset. It means that he or she can expect to hold the land long enough to recoup the returns from investments. 13 15. Security of tenure is often treated as a matter of titling and registrationof rights, but this is too narrow a focus. At least four elements are needed for security of tenure: 1) property rights of long duration, conferring freedom of management, that are inheritable and protected against state as well as private takings; 2) recognition of those rights as held by particular individuals or groups in particular land; 3) registrationof those rights in a manner that makesthem easier to prove and confirmsthem legally, and 4) arule of law environmentinwhich those rightswill be respectedand defendedby officials andcourts. 1.5 Recommendations 16. How does one restore tenure security to these different levels in post-conflict Liberia?The figure below seeks to show what legalrequirements are requiredfor tenure security and how these seek to impact security in Liberia. However, it is clear that it is notjust the legal framework that needs to change to improve the management of land records and improve equity in access to land. Clearly, the social underpinnings which produce the landtenure system of any society also needto changeto create real security under a solid legalframework. Figure2: Land Tenure, Land Administration and Security of Land Tenure ..................... SOI=tAU PRooucrtvtri/ FOOD PROFIT sEcuRirY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The figure illustrates a conceptual framework linking legal requirements relatedto landwith security of tenure and investment outcomes. The logic of the figure can be summarized briefly: 0 Legal reforms must provide robust property rights of long duration, rights that confer freedom of managementandthat are inheritableand protectedby law from easy taking by the state, and the means to prove rights. This must take place within a rule of law environment that allows for effective vindication of rights in courts or other fora. These together provide security of tenure, vital for both the social security and commercial production functions of land. 14 Ifthe rightto alienate land is also part ofthe bundle ofrights,the landmay betransferred as needed or mortgaged to obtain credit. Once the land is marketable, the market will move land to those who can pay more for it and who will, in economic theory (ifnot always in practice), use it more efficiently. Security o f tenure increases investment incentives, and the ability to use land as security for loans is expected to make access to credit easier. Anticipated results include increased productivity per unit o f land and profitability. Not shown in the figure, and not given much attention in the early work by agricultural economists but highlighted in Hernando de Soto's The Mystery of Capital,is the potential o f the same measures to increase the market value o f land, speed up the economic capitalization o f developing countries, and allow development o f secondary markets in ~ecurities.'~ Not shown in the figure is also the social milieu, which must change to create equal access and opportunities for all. This is because the legal framework may exist but small holders may still be unwilling to invest in their land if it can be taken away by a dominant ethnic group or a corrupt local leader. Buildingup the legal framework is a challenging task, but an even more difficult task and the hardest aspect o f improving land tenure in Liberia is creating the milieu where the state makes people accountable to the law and where all Liberians feel they have equal access to and rights under that law. It is only this that will create the real security under the law. 17. There have been suggestionsthat a special court for land disputes be established to deal with the high and growing volume of land dispute cases. The argument against this proposal is one o f resources and their allocation. Generally, channeling greater human and capital resources to the Circuit Courts, with such funds targeted at land dispute resolution, may well be more effective than creating a special Land Court in Monrovia. The World Bank has generally found such specialized land courts not to be terribly useful, though no hard and fast rule is possible.'6 In addition to the regular courts, traditional authorities and local administrators have long dealt with land disputes, especially in the Hinterland. They continue to do so, but their roles and the extent o f their success inthis area have not been documented. 18. Another approach being used in dealingwith landdisputes is AlternativeDispute Resolution (ADR). The principles o f arbitration and mediation are not foreign to Africa, and in fact the early work on ADR was informed by the legal anthropological literature from Africa and elsewhere. The essence o f ADR is negotiation o f solutions acceptable to all parties, rather than reliance upon an authoritative adjudication according to law. Judicial decisions tend to result in winner-take-all solutions. In land disputes, typically one party gets the land, the other does not. ADR on the other handallows for compromises. 19. ADR has been introduced through the efforts of a numberof internationalNGOs working on conflict management in Liberia, including the American Bar Association branch in Monrovia and the Norwegian Refugee Council (NRC). Most o f the NGOs concerned have been drawn into this area through their work on ensuring the human rights o f Liberia's many returnees after Liberia's 14-year civil war. The NRC has been active in mediation o f land disputes in Nimba County, working in the rural areas where such disputes are less politicized. The NRC is also conducting training on the land law for officials and community residents, and on alternative dispute resolution itself." There are thus four modes o f dispute resolution being deployed: traditional dispute resolution, adjudication by the courts, political resolution by Presidential task forces, and alternative dispute resolution. These are not however being mobilized in any systematic way, and there is a clear need for a more strategic approach. 15 20. Land disputes are within the original jurisdiction of the Circuit Courts, one in each County seat, but it seems that those courts have a limited capacity to deal with the cases coming before them. An October 2006 InternationalCrisis Group report on resurrecting the Liberianjustice system" notesthat inAugust 2005 twenty circuit courtjudges were sworn in, but that they found at least five circuit courts were "completely defunct or barely operational". It notes cases of circuit court judges still residing in Monrovia because of lack of decent accommodationat their posting, or for personalreasons, and urges governmentto dismiss them if they do not take up their posts. It concludes that "Circuit court inactivity is paralyzingthejustice system in parts of the country", and notes that the circuit courts have originaljurisdiction over serious crimes and land disputes. The Probate Courts, again supposedly operational in each county, are critical in the creation of deeds and the deed registrationprocess, but are in the same state of disrepair as the Circuit Courts. The ICGreport notes that most such specializedcourts are not functioning, or staffed with woefully unqualified appointees. In the Circuit Court in Tubmanburg, only one Circuit Judge performed the role of the Probate Court Judge, that post beingvacant. ABNAfrica director Anthony Valcke noted that many land disputes are ending up in the criminal courts, when a litigant seeks to use the police in his or her behalf. Criminal mischief charges may be filed against a party to returns and tries to reclaim his land. False assertions of fraud are common, also attempts to engage the police on one side of what is a civil dispute. 21. Figure 2 has references to rights, titling and registration.These involve the legal dimension of land. These legal dimensions are fundamental to buildingthe framework for land tenure security in Liberia. The legal framework, if you will, is therefore the first step in beginningto create some form of tenure security in Liberia and because of this, this paper will spendthe next chapter assessingthe legal problems, the land disputes and determiningwhat steps need to take place to begin to build a secure land tenure system in the country. It first examines state/public lands, which are the most documented in Liberian law. Chapter three will examine customary lands. It is only possible to get information on customary informal law through fieldwork and discussions at the local level. This is because very little exists in terms of documentationregarding customary law. The paper therefore assesses the existinglaw (and the informal customary law) and suggests possible reform directions that could help reconstitute security oftenure inthe realitiesof post-conflictLiberia. 16 Chapter Two Liberia's Law of Real Property on StatePublic Lands 2.1 The CommonLaw Base: The Introductionof Fee Simple in the Historical Context 22. Perhapsthe most salient single fact about Liberia's land law is that it is, like most jurisdictionsin the Anglo-American legaltradition, part of a common law system, a system in which most law does not originate in statutes but has instead been built up out ofjudicial decisions over centuries.National systems o f common law typically begin when a new colony, as yet having no law o f its own, "receives" (adopts) the common law o f England or another common law country. It is then modified over the years by locally-enacted statutes and decisions o f the local courts. 23. In Liberia, it is the common law of the United States that was received. In 1827, only a six years after the arrival o f the first settlers sponsored by the American Colonization Society, the Society's local managers promulgated a "constitution" which provided in Article 6 that "The common law, as in force and modified in the United States, and applicable to the situation o f the people, shall be in force in the settlement." Liberia's 1847 Independence Constitution in Article V (1) continued the effectiveness o f laws already in force, including the common law. Liberia is thus the heir to a rich, complex body o f land law developed initially in England and modified over some decades in the United States. This inheritance consists largely o f a vast body o f decisions o f superior courts concerning land. Such decisions o f superior courts make law, and are precedents which lower courts are required to follow and which even the same superior courts cannot lightly alter. In the course o f Liberian legal history, this inheritance has been modified and interpreted by the Supreme Court o f Liberia. The resultant body o f "case law" i s embodied in the forty-one volumes o f Supreme Court decisions, a series unfortunately discontinued in2003. 24. The received common law on land applied only to land distributed to settlers or AmeroLiberians who were ex-slaves from the US. They received their land in common law tenure. The American Colonization Society, organized to resettle freed slave or other free persons o f African descent in Africa, in the early 1800s established contacts with peoples o f the Grain Coast. After successful military encounters, the Society's representatives were successful in purchasing land from native traditional authorities along the coast. A degree o f duress was certainly present, but in prevailing situations o f relative land plenty, giving land to groups o f immigrants was traditional. It was advantageous to the chiefdom, since new subjects were often a source o f wealth. 25. The traditional authorities who sold land to the American Colonization Society (ACS) almost certainly did not appreciate (any more than chiefs dealingwith colonialists in other parts of Africa) that they were alienating land permanently and conclusively from their people. A paper prepared for a 2007 GRC workshop by the Historical Context sub- committee o f the GRC's Working Group on Lands notes: During the period of penetration and pacification land disputes of consequence involved government and a tribe (or portions of a tribe). In 1822, the year Liberia was founded, a violent conflict erupted between the settlers and the indigenes over land purchased for them by the American Colonization Society (ACS). The repatriateswere of the view that the land bought from 17 the African leadership was theirs forever. The Africans held a contrary view. For them, the land was never sold but rather given to the ACS for the resettlement of their kinsmen who were returning from slavery and would sooner or later place themselves under the authority of local kinds. Conflicting concepts of ownership found its frrst expression in the Battle of Crown and ForthHillsfought at the endof 1822.19 26. For the ACS, their aim was to move this land decisively out from under traditional authority and convert it to a "modern" land tenure conducive to the individual initiative and enterpriseof the settlers. When settlers began arriving inthe 1820s, they received land grants from the ACS. A family would receive a substantial 25 acres of farmland and a town plot. This land was given as grants of "fee simple". This strong property right under Anglo- American common law has become what laymen today call "private A holder in fee simple has the right to possess the land in perpetuity; the right to exclude others from it; the right to use the landand retainthe fruits of its use; the right to will landto heirs and to have such land pass to heirs according to rules of intestacy where there is no will; and the right to sell, mortgage, lease or otherwise alienate rights over the land, temporarilyor permanently. 27. Through grants to the settlers, fee simple was introducedinto a belt of land along the coast. Later, Liberia expanded by conquest southward and to the east. Land held by the settler occupants of these areas was deemed public land by the State, which did not bother to purchasethe landfrom the indigenous Africans. Thejuridical basis for this landbeingconsidered as public land, while this is the long-standinglegal assumption, is not clear.21As Liberia threw off the control of the American Colonization Society (ACS) and became independent in 1847, Government enactedlaws governingthe sale of this "public" landto applicants. 28. By 1900 Liberian settlers controlled a strip 600 miles long and roughly 50 miles inland. Most of the fee simple is in this area, much of it concentrated in the coastal "old counties". There are some coastal counties, especially further south along the coast, such as Grand Jeddah, River Cess, and Sinoe, where fee simple predominates, but there is also considerable public land under customary land tenure. The "old counties" of early settlement account for considerably less than halfthe territory of modern Liberia. 29. I t is difficult to say how much land in Liberia has been alienated (granted or sold) by Government into fee simple over almost two centuries. I t has been estimated to constitute about 20% of the land in country, but that estimate should be treated with great caution-the data does not exist for more than an "educated guess" andthe actual figure is likely to be muchhigher than estimated, There is an active landmarket, and informantsindicatedthat an acre of rural landnear Monroviawould cost something on the order of $125/acre. 30. There are a few additional statutes on real property which have been included under the law inmore recent times- see Section 2.2. These have not significantlychanged the nature of the simple fee law that has existed since the 1900s. 2.2 Statutes on Real Property: A Supplement 31. Since the original law on property, the Liberian legislative branch has enacted a modest body of statutes which supplement and in some case modify this body of "case law". The statutory contributionsto Liberianland law are modest in number, but important (see Box 3). This Property law is the lineal descent of a version first enacted in 18612*.It does not attempt to restatethe whole body of property law but consists of severalchapters each of which supplements 18 or modifies some specific aspect o f the common law o f real property. It is now Title 29 o f the Liberian Code Revised23. 2.3 The Public Lands Law of 1956 32. The best known and arguably the historically most important land statute in Liberia is the Public Lands Law, which appears in Title 34 in the Liberia Code Revised. Its principal purpose is to provide for the sale or other alienation o f public land and for registration o f deeds to such land. It is the latest in a long line o f laws providing to this effect, but the fundamentals do not appear to have changed much over the years. 33. The Law providesfor Land Commissionersfor every County be appointedby the President,with the advice and consent of the Senate (s. l), those Commissioners can issue and certificates that land is free for purchase and also draw up public land sale deeds. A Commissioner is responsible for keeping records o f public land sales (s. 3) and making quarterly reports to the Ministry o f Justice and monthly reports to the Bureau o f Revenues (s. 4). The Commission is legally responsible for damages sustained due to his mismanagement or neglect (s.5). 34. The Law also provides for the Public Surveyor for each county to be appointed in the same fashion (s. 10). The role o f the Public Surveyor is to survey land for immigrants and also, when ordered to do so by the President, public lands which are to be sold (s. 11). Reports are to be made quarterly to the Circuit Court in the County and eventually filed in the National Archives (s. 12). There are statutorily fixed fees for surveying and fines for fraud (s. 13), which have been rendered irrelevant by inflation and bear no relationto fees actually charged. 19 35. For sales of public lands, the Law provides for process that begins in the case of land in the interior with the purchaser identifying the land he wishes to purchase and approaching the traditional authorities within whose jurisdiction the land is located to obtain their consent to the sale. The purchaser must pay the chief "a token of his intentionto live peacefullywith the tribesmen". A detailedprocess is providedinthe Box 4. 36. While sale of public land is the mainway in which land is accessed today, the Law still has provisions for fee free allotments of public lands. One law deals with settlers. A person of Negro descent arriving inLiberia and declaringthe intentto becomea citizenis entitled to draw a town lot and a farm lot of ten acres, or larger amounts for a married couple (s. 50). Once this person has obtained citizenship, built a house on the land and broughttwo acres of the land under cultivation, he is entitled to receivethe land in fee simple under a "settlement deed" from the Lands Commissionerfor the County (s. 51). Any transfer beforethe settlement deed is transferredis invalid (s. 52). 37. A similar provisionis made for allotmentsof public lands and grants of such land to "aborigines (indigenous Africans) who become civilized" (s. 53). These are subject to similar requirements with regardto its development. An aboriginal deed is a deed in fee simple, with the characteristic "to his heirs, executors and assigns forever" wording. Imprecise and inconsistentwording in some such deeds has createdconfusionand resultedin bitter disputes and controversialjudicial decisions.26It appears from the practice that such an allotment or grant can beto an individual or to agroup. 20 38. Both settler deeds and aboriginal deeds, like deeds under public land sales, must be signed personally by the President. This Presidential monopoly o f the creation o f property rights is an expression o f what some commentators have referred to as the "imperial" tendencies o f the Presidency inthe Liberian constitutional tradition.27 39. Finally, foreign individuals or corporations can obtain the use of land in Liberia for agricultural,mercantile or miningoperations through a lease from the President for not more than fifty years, renewable for a further fifty years, which lease or renewal must be ratified by the Legislature in order to be valid (s. 70). Leases may be made to foreign governments for their legations for up to ninety-nine years (s. 71). Liberian Constitutions have since colonization barred foreign ownership o f land, most recently under Article 22 o f the 1986 Constitution, though an exception to the prohibition has long been provided for foreign "missionary, educational and other benevolent institutions" and such institutions in fact own considerable land in Liberia. 40. While the law covering sales of public lands has been presented here in relatively neutral tones, such sales of public land are at the heart of the contentionover land between Amero-Liberians and indigenous peoples, or perhaps better, between the educated and urban-base elites who can use the land purchase mechanism and the occupants of land in the interior. A 2007 report prepared for a GRC workshop by its Steering Group on Land's sub- committee on historical context states: "Large acquisitions by the right and powerful displace the population living on the land and practically reduced them to serfs. Such acquisitions alienated the inhabitants from their sacred groves, tree crops such as kola nuts, and shrines. Huge purchases deprived local people o f land for cultivation." This will be an issue that will need to be addressed by the anticipated Land Commission. 2.4 Recommendations: Reform State Law on Real Property to Improve Tenure Security 41. Given the long establishment of private ownership and the broad understanding of the basics of ownership in those areas where it predominates, Liberians might be best served by continued reliance on private ownership in those areas where it predominates. There seems to be little purpose in introducing further uncertainty at this point in time, and private ownership does provide maximal security o f tenure. It is the tenure developed for market economies. Liberia would then take the path followed by South Africa, leaving private ownership in place for the security o ftenure it provides, while seeking to address directly, through a variety o f means, the inequities in the land tenure system. The solution for land which has continued under customary land law may needto be different, as is discussed in Section 3 o f this report. 42. That said, Liberia's common law on real property is antiquated and needs revision. I t would be appropriate in current conditions to think in terms of a consolidated Land Law, pullingtogether and supplementingto the extent necessarythe existing statutory law. This law should a) set out the organizational framework for land administration and the competences o f government agencies, b) set out a framework o f private ownership and other rights to land (to some extent codifying the common law o f ownership); c) provide an equitable legal framework for land under customary tenure, d) define and provide standards for allocation o f public land, and e) update the law concerning requisitioningo f land for public purposes. 43 - -in I There is also an important need to assess how far land reform the sense of redistributiveland reform is needed in Liberia. It is difficult to answer this question because 21 the data sources are so poor.There is no reliabledata on land distribution. Inthe absence of such data, it is difficult to frame a policy response.The issue is discussed further in Chapter 6. 44. Liberia has a moderately well-developed system of common law rights in land. The basic rules and concept are well known to Liberians living in the parts of the country where the system prevails, and even among rural elites in the hinterlands. Different authorities have different preferences as between full private ownership and tenures such as leasehold from the State, but it seems inappropriateto revisit this basic choice in Liberia, which would increase insecurityof tenure. What is neededhowever is a careful review of this body of law - both case law and statute law -- to determine whether it has become seriously antiquated through lack of regular revisionin light of advancements inrealproperty law inother countries? 45. Clearly, the Law on Public Lands requiresfundamental revision.It needsto reflect a new political consensus currently in the process of formation about what land belongs to local communities and what land is actually public land, who can access public land and for what purposes. It should also reflect the acceptance of customary land rights as full property rights, whether on an individual or a community basis. Serious consideration should be given to a decentralizationof decision-makingover alienationof public lands. The runningof all public land sales throughthe President's office is an anachronism, and contributes to the politicization of the land sale process. Any such requirement of approval of a land sale at that high levelwould better be reserved for cases in which, for example, major concessions above a specified number of hectaresare involved. 46. The most fundamental problem, however, is that landrecords do not allow government to determine with confidence what land is unencumbered, publically owned land. The team saw recent concessions that reflect recognition by government of this reality. They provided that if land under private deed was later discovered within a concession, government would encourage the owner to work out a deal with the concessionaire, but failing this, would at the request of the concessionaireutilize its eminent domain powers to acquire the landcompulsorily,andthen make it available to the concessionaire. This is arguably an unconstitutionaltaking since it is for a private and not a "public purpose", as required by the Constitution. Another concession term provided that if a tribal reserve was later discovered to exist within the concession, the government would undertake to demarcate it, andthe reserve as demarcated would then no longer constitute part of the concession. The existence of such provisionshighlights the needto establish clear rules andrecords regardingpublicand private land. 47. There is a need for a moratorium on public land sales, and for development of more effective and impartialprocesses, however ad hoc, for (a) assessingthe ability of the applicantto develop the holding, and (b) for examiningwhether the land concerned is in fact available. Clear limits should be set upon the size of parcels to be sold, and prices should be increased to approximate market value, with some exceptions, for instance where the purchaser or purchasing community has long be in possession of the land. Parcels over a certain size should not be sold but where a compellingcase is made, can be made available under concessions (long-termgrants of use of landsimilarto leases). 48. Concessions have a troubling history in Liberia, largely because excessively large areas of landhave often been granted, interferingwith the use of that land by local communities. The Comprehensive Assessment of the Agricultural Sector (CAAS-Lib) proposes a viable alternative for concessions for agricultural crops: a "nucleus estate-cum-small landholder" strategy for oil palm and rubber, Liberia's two most important plantation crops. This is an economically sound approach. It is in input supply, crop processing and marketing that large 22 operations exhibit significant economies o f scale, while in actual production activities smallholders often have an advantage. The model seeks to incorporate both these strengths, and has had notable successes, such as those in Indonesia. These were reviewed at a recent IFC- sponsored workshop2*, which raised most o f the pertinent land issues. A number o f suggestions were made at that workshop that are worth endorsing here: a) Only smallholders inthe area who choose to contract with the nucleus estate should be required to market the product to the estate (Le., no more general monopoly should be conferred); b) Safeguards should be inplace to ensure against overpricing o f inputs and services provided by the nucleus states or prices paid by the nucleus estate, and c) Smallholder outgrowers should be provided with security o f tenure, perhaps through titling and registration o ftheir holdings. 49. From the standpoint of investment, the issue in property rights that will undoubtedly claim most attentionis the effective prohibitionof ownership of land by those of non-Negro ancestry.Article 27 (b) provides that "In order to preserve, foster and maintain the positive Liberian culture, values and character, only persons who are Negroes or o fNegro descent shall qualify by birth or by naturalization to be citizens o f Liberia." Since the Constitution in Article 22 limits prohibits land ownership by non-citizens, the Constitution effectively bars foreign investors from land ownership, a bar that applies even to long-standing resident communities o f foreign nationals important to commerce and investment, such as the Lebanese community. Liberia is perhaps the only country in the world with such a racial requirement for citizenship. Its historical roots make it understandable, but it is time to reconsider and debate this, not ideological terms but interms o f its actual impact on foreign direct investment inLiberia. The actual impacts o f such restrictions in fact vary substantially from country to country, and international experience must be reviewed and relatedto Liberian circumstances. 50. A more difficult question is whether Liberia should retain the restriction that denies land ownership to non-citizens. Such provisions are not unusual. The extent to which such a provision discourages direct foreign investment is a subject on which there is not a consensus, and this is because that extent depends on the circumstances o f the county. InLesotho, such a prohibition is in force and it almost certainly discourages foreign investment, especially since foreign investors can access land in ownership in the country which surrounds Lesotho, South Africa. In Mexico there is a similar prohibition, and it is probably all that has prevented Americans from buying up that country. It does not appear to have discouraged American direct investment in Mexico, which is very substantial. The decision about non-citizen ownership o f land needs to be made not on the basis o f ideology or fear but on a serious assessmento f risks and benefits. I s there evidence that existing access to land through leases from the state or private owners o f land does not adequately meet the needs o f foreign investors? It is likely that what concerns investors is not so much that they have access to land only on lease, but that the government and the courts cannot be relied upon to enforce and protect property rights. 51. This question of public ownership of land not under deed is complicated significantly by the provisions of the new law on forestry reform. The constitutionally questionable provision for state ownership o f natural forests and the extremely broad definition o f forest lands in that law may be seen by communities in the hinterlands as an extension o f a history o f dispossession, the further taking o f the land and land-based resources on which their livelihoods depend. The forestry sector, because o fthe urgency o f the need to lift the embargo on forestry exports from Liberia, has moved out ahead o f the general land and property rights policy making process reflected in plans for a Land Commission (see below). At that stage, a more 23 diverse set of claims to land and the forest resources on them will be brought forward and will need to be reconciled. Much will depend on on-goingefforts to frame an adequate community forestry program, but this in turn may depend on a better-balanced, more community-based approachto ownership of forest land andresources. That balancewill notbeeasyto achieve. 52. The appropriate vehicle for tackling all these issues would be a new Land Law, into which all the legal reforms mentioned about could be consolidated. This would not necessarily prescribe a uniform real property law for the whole country but rather a harmonization of statutory and customary systems and a balancing of diverse user interests, creating a functional national system. There is a good deal of public mistrust of government aroundthis issue, and it would be a mistaketo attempt anythingtoo elaborate, which couldeasily be misunderstood and increase suspicion. One simple approach is straightforwardrecognitionof customary rights as property rights with legal protections equivalent to that of fee simple. Another is their conversion to fee simple. The interface between the systems, and how land moves back and forth between them, will need to be carefully planned. Such a law should be draftedwith the eventual integrationofthe two systems into a single system in mind. 53. In addition, those working on a law on community rights in forests need to give urgent attentionto the expansive assertion of state ownership of natural forests embodied in the recent National Forestry Reform Law. While well-intentioned,that law so broadly defines forest resources and forest land as to infringe in a most substantial way on the propertyrights of rural Liberians,both owners of forest land and communities holdingand usingforest land under customary right. The taking of rights over forests may well be unconstitutional.For traditional communities, it amounts to deprivingthem of their maineconomic resource. There is no reason in fairness why such communities should not be recognized as holding full property rights over their forested land. They couldthen be allowedto commerciallyexploit those forests. Affirming their property right does not preclude commercial exploitation of those forests. It simply empowers them in their participationin plans for such exploitation, ensures them a fair share of the income from operations, and gives them a veto power if they are not to receive a fair share. The role of governmentwould then be to facilitate such negotiations, and to ensure their fairness to all concerned. Government need not own the land to play this role, and while forestry must generate revenues for government; this can be done through taxation rather than direct management. The difficult questions here will be: 1) which communities have the authority over forests, and 2) do those communities have the institutionalstructures, capacity and accountability to manageforests responsibly? 54. In the end, it is likely that some balance will need to be found between the community forest ownership model and the model of community forestry on state-owned land, involvingdefinition and surveying of tribal reserves. Establishingthe criteriato be used in such a processwill bethe challenge. The experienceof Mozambique, which hasfor some years been going through a similar process, may be helpful.29A new Land Law will likely need not only to establishcriteria,but to establish a processalongthese lines. 24 Chapter Three Liberia's Customary Land Law 3.1 The Historicalcontext of CustomaryLand 55. Customary land "law" governs access to and use of land by most rural indigenous Liberians.By "customary law" this report means a body o f norms governing land use, generated and enforced by a sub-state polity, often quite local in nature. Such norms and the polities which give rise to them may or may not be recognized by the national state. Customary law has roots in tradition, and reflects the cultural values o f the people concerned, but contrary to what is sometimes assumed, it is not static. Its norms tend to evolve to meet new needs or may even be purposefully amended by those in the polity responsible for law. States which do recognize customary law have often sought, with some success, to alter the content o f custom to achieve state objectives. There is every indication that this customary law in Liberia is alive and robust, and governing most smallholder access to land.30 56. The geographic domain of customary land law has historically been the "Hinterland" of Liberia, that area beyond the counties initially established by the settlers. The Hinterlands were long ruled by the Government in Monrovia through traditional authorities under an "indirect rule" model not unlike that in Britain's African colonies. The Hinterland were inhabited by numerous tribes (the figure generally cited is 17), each with its own customary land tenure system. Those customary norms continued --and continue today --to govern most access to and use o f land by the inhabitants o f the Hinterlands. 57. Until 1945, the Hinterlands were divided into "districts" and subject to a legal regime for public administration distinct from that of the "organized counties". In 1945, President Tubman's Unification Policy extended the right to vote and occupy office to the peoples o f the interior. New counties covering the entire country have been created. The intention has been for these new counties and the old counties to move toward a unitary system o f local administration, but the distinction between the counties in the Hinterland and the rest o f the country continues under the Local Government Law (Title 20 of the Liberian Code Revised).31 58. There is perhaps no country in Africa where lessQis known of customary systems of land tenure than in Liberiaa3* This is not surprisinggiven Liberia's history, where has been little interest or incentive in studying indigenous customary laws. In Liberia, as in other African countries, the "customary" has been distorted for state purposes. Chiefs, who are government designatees, have been given an authority over substantial areas o f land without making clear the extent to which that authority is purely administrative or involves a property right in the community that lives there. Clearly, customary rights and norms will differ due to ethnicity, gender, etc. This will not be uniform around the country and the content o f Liberia's customary land tenure systems call for urgent investigation. 59. Instead o f trying to quantify these differing norms within the customary sphere (a study o f this nature will take considerable financial resources and time), this report deals instead with the legal position o f customary land law within the national legal system, a formal matter which is somewhat easier to characterize and assess. The key issue is how far and in what manner ha Liberian law recognized and protects rights under customary land law and how has this impacted both equity and security. 25 3.2 The Legal Status of Customary Land Law 60. Today the foundational authority for the continued legal applicability of customary law is the 1986 Constitutionitself,which providesin Article 86: "The courts shall apply both statutory and customary law in accordance with the standards enacted by the legislature." The key legal instrument by which this i s accomplished is the "Revised Rules and Regulations Governingthe Hinterlands o f Liberia". 61. The "Revised Rules and RegulationsGoverningthe Hinterlands of Liberia" deals less with land and more generallywith governance in the Hinterlands, includingthe system of indirect rule through chiefs. While there are versions o f this instrument from earlier in the century, the earliest seen during visits to Liberia is a 1949 version, a law approved by the Legislature and entitled "Revised Laws and Administrative Regulations for Governing the Hinterlands". This was repealed by Section 600 o f the Aborigines Law (Title 1 o f the 1956 Liberian Code o f Laws), which covers much o f the same material. But that Aborigines Law was in turn arguably repealed by implication when it was excluded from the 1973 revision of the Liberian Code o f Laws.33 Since that time, the earlier text from 1949 has been resurrected as a regulationrather than a law, and republished on a number o f occasions by the Ministryof Internal Affairs. The authority for the Ministry doing so has been suggested by various local legal experts to derive from the Executive Law (Title 12, LCLR 1973)34or the Local Government Law (Title 20, LCLR 1973). The most recent version o f the Hinterlands Rules and Regulations seen is dated 2001.The current version is identical to the earlier versions. These regulations apply not only to the Hinterlands but to land under customary land tenure in the older counties o f Liberia as well.35 62. The Hinterlands Regulations provide in Article 29 that "It is the policy o f the Government to administer tribal affairs through tribal chiefs who shall govern freely according to tribal customs and traditions so long as these are not contrary to law." The key article o f the most recent version o f Hinterland Rules and Regulations is Article 66 ("Lands"): Title to the territory of the Republic of Liberia vests in the sovereign state. The right and title of the respectivetribes to lands of an ade uate area for farming and other enterprises essential to the necessities of the tribe [gap in texJ6 ...main interest of the tribe to be utilizedby them for these purposes; and whether or not they have procured deeds fiom Government, delimiting by notes and bonds such reserves, their rights and interest in and to such areas, are aperfect reserve3' and give them title to the land against any personor persons whats~ever.~~ This land interest may be transmitted into communal holdings upon application of a tribe made to the Government for this purpose, and such communal holding would be surveyed at the expense ofthe tribe concerned.39 The communal holding will be vested in the Paramount Chief and Tribal Authorities as Trustees for the tribe. The Trustees, however, cannotpass any fee simple title intheir lands to any personwhatever. Shouldthe tribe become sufficiently advanced inthe arts of civilization, they may petition the Government for a division of the land into family holdings in which even the Government will grant deeds in fee simple to each family for an area of 25 acres in keeping with the provision ofthe Act of 1905. 63. The remarkable first sentence which indicates that all land is owned by the state (see above) occurs in the 1949 Law as well. There is no parallel constitutional provision. It could be read as an assertion of a radical title in the state, similar to that traditionally held by the Crown under English common law. But it is the United States common law that was received in Liberia, and the state courts o f the newly independent United States rejected the "doctrine o f tenure" (the existence of an ultimate title in the Crown or the State and that all land is held from it 26 on "tenure"), embracing instead the revolutionary French notion of a fully private ownership. Oddly, the provision seems to purport to aPulv to all land in Liberia, not just land in the Hinterlands. The provision would presumably be unconstitutional if applied to properties alienated by the State in fee simple, as contrary to the guarantee of property in successive Liberian Constitutions. But what of land under customary tenure in the Hinterlands?Is this provision, or some earlier version of it, the legal root of the common legal assumption that all land in the Hinterlandswhich has not beendeededto community/tribalgroups is public land, and therefore accessible to concessionsandother uses? 64. There are other important contradictory issues concerning the nature of the rights recognized by this Article. What is the nature of the "title" which a tribe holds to its Tribal Reserve?The use ofthe term title seems to imply more than a useright, though later in the same section it is described as a ccusufruct".This is a use right, potentially perpetual, but assuming an underlyingownership in another, in this case the state.This suggests that the land is public, andthe "tit1e"only covers a useright. The extent ofthe reservedepends uponthe needsof the tribe. While there is a reference to farming, those needs are not confinedto that use but are more broadly stated. The term "necessities" might be interpreted to refer to subsistence needs only, but this would fairly clearly be unreasonable;yesterday's andtoday's necessities are not the same. Notethat the legal existence ofthe reservedoes not require delimitationby Government; it exists by operation of law, for the landneededbv the tribe. It neednot be enshrined in a grant or demarcatedor registered. Of course it would be helpful if it were demarcated, since that would make its extent clear, but it is not necessaryto its existence. It appearsthat the usufruct is vested in the group as an entity. Legally, it is important that it is a "title", not simply an administrative allocation of land. As such, it is a property right and constitutionallyprotected. Use of land by membersofthe community living inthe Tribal Reserveremains governed by customary law. 65. Similarly for the "Communal Holding", what is the tenure in which this land is held by the community? It is ultimately divisible into household fee simples, for which title deeds can be granted, but it is itself a fee simple in the group? Or might it be a tenancy in common?It is subject to the trusteeship of traditionalauthorities, and while they are specifically prohibited from passing it in fee simple,40this does not mean that it is not held in fee simple (indeed the prohibitionon passing it in fee simple might be consideredevidence that it is held in fee simple). In general, however, government appears to have considered the cccommunal holdings" a usufruct, like the reserve. It would at least appear to be a "title", with the same implicationsfor constitutional protection of property rights as in the case of a Tribal Reserve. Again, the useof landby members ofthe community continuesto be governed by customary law. 66. Section 8.52(d) of the 1974 Registered Land Law reflects the common understanding that land under both tribal reserves and communal rights remains public land. Section 8.123 of that law indicates that in such a case the land is to be registeredas public land and the tribal reserve or communal holding is to be shown as an "encumbrance". This is consistent with how other real rights, suchas leases or mortgages,are shownonthe register. 67. Article 67 of the Hinterlands Regulations also deals with the use of land by "strangers". It allows someonenot a member of the community who wishes to farm in the tribal territoryto obtain landthere, requiringhimto "(a) obtainpermissionof the Tribal Authority prior to commencinghis activities;(b) agree to pay some token inthe nature of rent such as five or six bunches of rice out of every farm; (c) pay taxes to the appropriate tribal chief on all huts on the lands erectedor occupied by him." Unlikepurchases under the Public Lands Law, in this case no formal change in the nature of land tenure appears involved. The customary right to cultivate normallyheldonly by membersofthe group is simply extendedto an outsider. 27 3.3 Problemswith the Duality of State Law and Customary Rights 68. The existence of both statutory and customary land tenure systems in Liberia is often seen in most African counties. Such duality per se is not problematic,but rather the way it is handled. In Liberia, it has also fostered inequity in access to land and rights to land between Amero-Liberians and "civilized Africans" andthe wider African populationat large. There needs to be much more mutualrecognition, equity in the ability to access land and connectionbetween the two systemsthan there presently is. 69. The purposefulseparation of the two systems over a good deal of time has led to their non-integration, discrimination when they do come into contact, and has prevented the evolution of positive and mutually beneficial ways of interacting. New formal land and property laws and policies would do well to pursue considerable connection with customary forms of landtenure, particularly in terms of court systems, evidence, levelsof dispute resolution and appeal structure, claim, consultation, and issuance of concessions, titles, deeds, and use. The advantage of encouraging such connection is that the state will then not be in a position attemptingto administer and enforce statutory law in all areas of the country-which it will not be able to do in any case. Thus recognizing and cooperating with customary law offers the advantage of obtaining a free good by the government-an administrative capacity and functioning located pervasively in rural Liberia. Such a connection between formal and customary tenure systems should avoid re-institutingaspects of the customary tenure system that may have contributedto the onset of war. 70. One of the key problems in the current legal and customary law is that the dualism is structured in law so that the state system is always expanding at the expense of the customary system, with areas of land under customary law being granted or sold by the state into fee simple ownership. What happens is that customary land can move (sold, transferred) under state tenures but there is no way for landunder the state system to move (sold, transferred) under the customary system?This has meant that historically, for the most part, that landhas moved from the tribes andtheir membersto Amero-Liberians,reducingthe supply in the hinterlandsandcausingresentmentandtension amongthe indigenoustribes. 71. In these circumstances, it is natural that the few inhabitants of the Hinterlands who can have sought statutory law protection for their land rights. Liberian law contains a few provisions(see Box 5) that are intended to allow tribal communities or individualsto obtain state law titles to land (Le., when civilized Africans obtain public individual plots or tracts/allotments of community land), all of which have been mentioned before. In some rare cases, the community can apply to government to partitionits landholdinginto household parcels, with each household receivinga fee simple title to its land. The landceases to be public landand becomes privately, individually owned. Those classified as aborigines can also apply for an allotment or grant of public land, within or outside of areas for which they have traditional land rights.Inaddition, the traditional community can purchasethe fee simple in its own landfrom the state. In all such cases, the land ceases to be public land and becomes privately owned by the individual or group. Wiley (2007) notes that where a traditional community has purchased land, the landhas usuallybeendeededto the community itselfandnotto a trustee, such as a chief. 72. Inaddition,tribesandother traditional communities havetaken advantage ofthe public land sales to purchase their own land. Wiley (2007) notes that there may be substantially more landinthis category than is generallyimagi~~ed.~'Traditionalcommunities can also apply to have their land under customary land tenure demarcated as Tribal Reserves. This provides proof of a 28 historical claim o f right to the land and a clear description o f the land. The use o f the land by members continues to be governed by customary law. Alternatively, such communities can request that their land be constituted a Communal Holding, in which case members o f the Tribal Authority are constituted trustees for the tribe with regard to the land. In both cases, the land appears to have been considered public land subject to these real property rights o f the community. Under the Registered Land Law, these are registrable and function as encumbrances on the public ownership. In both cases, the use o f the land by community members remains governed by customary law. 73. Clearly, the principal tension in Liberian land law lies in the conflict between provisions affirming and protectingcustomary land rights of tribal communities and other provisions providingfor sale of that land, as public land, to outsiders. While the Public Lands Law in Section 30 requires consent o f tribal authorities to such sales within their territories, informants made it clear that the consent provisions have often been skirted or consents bought with bribes o f traditional authorities. The Public Lands Law in the same section makes it clear that such land for sales must not be part o f a Tribal Reserve, or "otherwise owned or occupied by another person". But in the absence o f demarcation o f Tribal Reserves, the provision appears to have little independent value. The assumption appears to be that ifthe tribal authorities consent to the sale, the land is not part on the Tribal Reserve. This is questionable, given the incentives that such authorities may have to approve such sales, which often extend beyond the "token" payments mentioned in the law. 3.4 CustomaryLandLaw in the Courts 74* In many countries the law taught at universitiesprovideslittle or no instructionin the handlingof customary law. Today, the development o f a "common law" o f customary land rights is at quite different stages in different common law countries. In the more advanced countries, there have been published comprehensive analyses o fthe case law concerning land and even volumes analyzing the customary law o f land inthe courts.42 29 75. In Liberia, the applicability of customary law in the courts is clear. In Manney v. Money, 2 LLR 618 (1927), the Supreme Court wrote "It is to be observed that unless contrary to plain rules of equity and justice, the native custom will be supported in our courts when the proper proceedings are instituted." The Supreme Court reiterated this in Watson v. Ware, 10 LLR 158 (1946), though it slightly different terms, when it wrote: "It has always been the policy of the government that insofar as native customary law and customs are not in violation of the Constitutionor of express provisions in statutory law, they will be applied and upheldby the courts here." 76. That said, very few cases indeed concerning customary law are heard in Liberia's courts. McCarthy (2007) contains a valuable and far more searching discussion than is possible here of the periodic assertions by the courts of authority over disputes, whether they involve custom or statute and whether they come from the Hinterlands or elsewhere, and of the continuing practice of resolution of such disputes by the Executive, even on questionable legal grounds. The Supreme Court as early as 1919 (Karmo v. Morris, 2 LLR 317 (1919)) asserted exclusive authority to adjudicate, and this has been echoed in some more recent cases such as Jitco Inc. v. Sisay, 36 1LR695 (1989), but inthe end the courts have respectedthe administrative adjudicationsthat have come beforethem. 77. Disputes concerning customary landtenure are resolved by traditional authorities in accordance with the Hinterland Rules and Regulations, and those involving clashes between customary and civil law claims by the state administrators there. Article 38 of the HinterlandRules and Regulations.McCarthyhas summarizedthis system nicely: Disputes over civil matters arefirst subject to Court of the Clan Chief ($the "subject matter" is less than $25), then to the Court of the Paramount Chief ($the "subject matter" is greater than $25 but less than $loo), then to the Court of the District Commissioner, on to the Court of the Provincial Commissioner,then to the Provincial Circuit Court of Assize. Article 81 states that the duties of the Superintendent of Native Tribal Affairs include that to "hear all cases on appeal arisingfrom the District and Provincial Commissioners", and that "all appealsfrom him shall lie with the PresidentSfinal hearing and determination". Indeed, most land rights disputes have thus been adjudicated by the Executive. On the other hand, Title 20: Executive Law, $25.3, which establishes a Liaison Oficer for Liberian Tribal Societies, does not give such direct rights of appellate review to Bureau of Tribal Affairs within the Ministry of Internal Affairs, nor does it state the President as havingfinal powers of hearing and determination. To the extent that such adjudicative powers remain, they would need to be impliedfrom $25.2@), which states that the Minister has a duty to manage tribal affairs and "all matters arising out of tribal relationships", and $25.2(1), which states one of the duties of the Minister as "administering the system of tribal courts ' I . In addition Section 38 on the Hinterland Rules and Regulations provides that disputes betweena "civilized person" and a "native" are to be heard in ajoint court of the District Commissionerandthe ParamountChief(S. 38(iv)). 78. The British legal scholar Anthony Allot, writin of the need for research of Liberia's customary land law, reached a conclusion in 196753 which has equal force today: "Practically no cases involvingthe substantive rulesof customary law have ever reached the Liberian law reports. The problem of internal conflict of laws - when to chose to apply the common or general law, and when to apply customary law, and if the latter, which system to apply - has received little if any legislative or judicial attention." Allott notes that the only substantive rules that have beenrecognizedby the courts concern but does refers readers 30 to two cases that have a more general discussion of the complexities of pleading and proving customary rules and integratingstatutory law and custom.45 79. McCarthy's 2007 review of cases concerning land refers readers to the discussion in Grimes' dissent in Harmon v. Tayler, 8 LLR 416 (1944) for a good historical development of formal land concerning customary land rights.McCarthy located and analyzes several interesting cases on the construction of state grants in deeds to traditional groups, but her review of Supreme Court cases found virtually none dealing with the substance of customary land law. A 2006 ICR report confirms this picture: "[C]ircuit courts are technically empowered at present to hear appeals from state-sponsored customary law forums but rarely do, because of the lack of operating circuit courts, the distance between the circuit court and most towns in a county, and the fact that ordinary citizens lack the knowledge or financial resourcesto file such an appeal." Is the "Provincial Circuit Court of Assize" referred to in Section 38 of the Hinterlands Rules and Regulations the same as today's Circuit Court at county level, from which an appeal would lie to the Supreme Court? The ICR report cited above seems to suggest that this is the case, and that a case concerning customary land law could come to the Supreme Court from that court, but that such appeals are not taken for practicalreasons.This requires clarification. 80. The failure to process customary land law disputes in the courts has important and negative implications for the evolution of customary land law. In other common law jurisdictions in Africa, customary rules have been reviewed and groomed by the courts for absorption into a larger body of common law. There has in Liberia been no such process, which Unruh terms "co-adaptation", Customary land law and formal law generally have functioned in isolation, within a virtual black box. Unruh (2007b) calls for the creation of mechanisms that "allow, and facilitate, the exposure and intrusion of formal and customary law into each other", and comments: "This will be a primary challenge for the formal legal system in the near future, and recent experience does not bode well." "The Liberian legal establishment has not", he notes, "been much exposed to what else has gone on in Africa and the rest of the world regarding approaches to managing legal dualism." He calls for the addressing of legal ambiguity, a more balance approach to the interaction between state and customary law, elimination of antiquated elements in the received law, opening up of space for co-adaptation processes, ending o f chiefly abuses and increasing accountability of local governance, and enacting formal laws that "work with the grain" of custom, reflectingthe values that underlay customary law. 3.5 Customary Lands and Takings 81. As the Governance Commissionstates inits 2007 draft paper "The Way "Small holder agricultural use and political control of land were the focus until the 1920s when Firestone was established as the first rubber concession. The statutory system providedthe legal basis for the development of the rubber, timber, and mineral concessionsthat were often foreign- controlledand for private commercial farming. Increasingacreage inrural Liberia came under the control of these concessions or was transferred ftom the customary system to the statutory by the acquisition of land deeds by Liberians. Unchecked land appropriation and land speculation became sources of uncertainty and conflict." 82. The GC goes on to notethat the grantingof deeds inarea undercustomary tenure was a contentious issue by the outbreak of civil conflict in 1990,the educatedpeople from the hinterlands having become aware of their exclusion and marginalization in the interface between the customary and statutory systems. It concludes that access to land was in fact one o f the root 31 causes of the civil conflict, and warns that "People are openly statingthat "if we fight again, we will fight about land". 83. Certainly the most dramatic form of land taking from localpopulationshas been the concession. Early allocations of land for commercial forestry, including rubber production, were prior to 1944 often deeded as fee simple. After that date, most were done as concessions. These are extensive, and Unruh (2007a) notes that it is generally considered that "a concession, while issued for the purpose of exploitingtimber, rubber, minerals, or agriculture, is in reality a very broad issuance of rights to claim and exploit land resources in whatever way suits the concessionholder; althoughthis may have little to do with the business proposalthat was usedto obtain the concession." Further, "there are significant problems with the actual areas of concessions, with the total area granted as concessions in some counties addingup to more than the area of the county itself." 84. Becauseconcessions have been granted so liberally, much of the land included in them has never been used by the concessionaires,a point of resentment of the part of local people. The Minister of Agriculture cited a study of rubber plantations by the UNMIL Civil Affairs Office showingthat on one million acres granted for rubber development since 1926, less than 20% has beende~eloped.~'It would be entirely appropriate for such landto be excised from the concessions concerned, and future concession agreements should make such land hoarding impossible. 85. The NTGL established a Forest Concession Review Commission, which recommended the cancellationof concessions.In February 2006, the President cancelled forest concessions through Executive Law No. 1, which also established a Forest Reform Monitoring Commission. A new forestry law was enacted. Concessions are being renegotiated as this is written, but it is unclear how far this process will free up land for direct use by rural people, for instance through community forestry. Information on the extent of reduction of the size of existingconcessions is not readily available.The Ministry of Agriculture should make systematic informationon this public, includingplansfor the use of such land. 86. I s there substantial concentration of those landsin the hands of a few? Certainly there are some very large farms. One source suggests a considerable concentrationof ownership, indicatingthat 75% of arable land is heldby 7% of the pop~lation.~~ 3.6 Recommendations: IntegrateCustomaryLand Tenure into the NationalLand Law for ImprovedLand Security 87. In the years after most African countries came to independence, many of those working on land tenure issues inthe regionwere anxiousto toss customary land tenure and the traditional institutions that supported it into the trash can of history. The critique was thorough: the customary norms emphasized status rather than contract or plan; they were outdated and incompatible with development; traditional political institutions were undemocratic and authoritarian; and in any case, those institutions had been compromised by their cooptation by colonial governments. Critics differed radically, according to ideological orientation, on where land tenure should go, but there was a consensus that it should not fall back on custom. Only a few countries, notably Botswana, GhanaandNiger, made a serious effort to work with customary land tenure. Examining these works, including the written Ghanaian Customary Law should provide some direction on the way forward. Those systems, while definitely not perfect, do have a coherence between the two types of laws so that any person can decide to purchase land and 32 follow the appropriate system to getting it surveyed and registered with relatively clear-cut guidelines. 88. The resilience of custom and traditional institutions reflects popular disillusionment with distant state institutions and their performance. Local chiefs are accessible to rural people through their own social networks, while even elected officials are remote except at election time. In recent years, a number o f countries have been rethinking the role o f custom and traditional authorities, and donor agencies such as the World Bank have acknowledged that in some circumstances, customary land tenure can deliver the security o f tenure rural people Customary land tenure should not be idealized, but discussions have shifted)om the assumption that it will die out to the process by which it can be adapted and harmonizedwithstatutory law.50 89. There are several basicapproachesfor doing this. They are not mutually exclusive, and are found indifferentcombinations.Some o fthem are: 1) The classic common law solution, selective absorption o f customary law into the nation's common law byjudicial recognitiono f customary rules;" 2) Ascertaining customary land law and making its content more readily available;'* 3) Registration o f customary land rights as customary rights (rather than convertingthem to statutory forms o f land tenure);53 4) Modification by legislationof negative aspects o f customary land law, such as gender biases, and creating mechanisms for appeals o f abuses to administrative or judicial authorities o f the state; 5) Creation o f hybrid institutions that administer customary land rights, involving both officials and traditional a~thorities;'~and 6) Modernization o f traditional land administration institutions through mechanisms such as registration o f land allocations and dealings, and increasedpublic participation in and transparency o f de~ision-making.~~ 90. To move forward on building security on customary lands, Government must address the fraught relationship between the Government's broad historical claims to public land, and the sense of many rural communities in the interior that the land they use is in some sense "theirs". Both individual and community rights under custom should be entitled to the same status and protection as the rights o f those holding fee simple. Government may want to consider backing o f f its historically very broad legal assumption o f public land ownership in the Hinterland. This issue, long o f f the table, is likely to be raised forthrightly in the discussions o f the anticipated Lands Commission. 91. Substantial reform of the law on real property is needed, and in the case of areas under customary law, there is a special need to reexamine the Hinterland Rules and Regulations. It is inappropriate to have the land rights of most of the country's people governed by an administrative regulation, and many of the provisions are offensive or simply antiquated. This is widely realized among legally literate Liberians. Simple repeal o f those regulations would however leave an unfortunate legal vacuum. They need instead to be replaced by a law dealing with local government in the hinterlands that addresses the role o f traditional authorities in land management. The present system should be reexamined, notjust the substantive rules but the structural and institutional dimension as well. How well does the official administrative structure o f district and clan chiefs created by the state serve the people o f the interior today? It is not an accurate reflection o f customary authority structures, though it is unclear how far it has been warped in the interests o f state administration. Have there survived 33 more culturally grounded systems of authority and divisions of territory that enjoy greater legitimacy,or havethese witheredand died? 92. The major alternative to recognitionof customary law and traditional authorities is building local-level institutions of a non-traditional nature that will take over administration of land. These may use customary law or statutory law, but the expense of putting such a system seems beyond the resources of the Liberian governmentat this time. A recent InternationalCrisis Group report on the justice system notes that while there is some sentiment in favor of a nationalsystem of statutory law which ends the current legaldualism, the collapse of the formaljustice system in many areas has left local disputants with no optionbut to turn to customary law and customary dispute settlement fora.56Traditionalauthoritiesrepresenta very low-cost dispute settlement option, whatever their limitations. Increasingly, African countries are seeking ways to work with traditional authorities to build upon but gradually transformexistingcustomary law. % 34 Chapter Four Land Administration: Deeds Registrationand Land Registration 4.1 The Deeds RegistrationSystem 93. The previous chapters have discussed reforms that are needed in the legal and customary system, which are the framework or skeleton of the tenure system. This chapter now examines the substance within that framework. Legal reforms that address equity issues or customary and formal tenure systems disconnects are importantto improving landsecurity but unfortunately these may exist largely on paper, without proper implementation. The more important question is what can one actively do to bring order to the chaotic land tenure system that exists in Liberia? The detailedmachinerythat has to go hand in handwith general legal land reform2 is the creationof a well functioningand rational land administrationsystem that can take the land, survey it, register it and assign it as yours and this can be handed down through generations. It is this that puts land securityright intothe handsofthe land-user. 94. Liberia has two systems for registration of instruments and rights in land. The first is a deed registrationsystem, importedfrom the US. in the early years of the settlement, in which the state provides a facility for those dealing in land to make a public record of their dealings. The second system, basedon a law enacted in 1974 and piloted in sections of Monrovia duringthe 1970s, is a land registration system. The newer landregistration system was expected to have gradually replaced the deeds registrationsystem. This did not happen due to events after the 1980coup, and today the operationalsystem (even inthe piloted areas under the new law) is still the deeds registrationsystem." Chapter 1 of the PropertyLaw (Title 29 of the Liberian Code Revised) deals with DeedRegistration.58 95. What is the problem with using a Deeds Registration System? In a Deed RegistrationSystem (see Box 6), the documents, not the parcels, are registered.While the system of document registrationmakes them available for public scrutiny, their recording in the official record does not in any way certify their validity, or freedom from forgery or other fraud that might render it invalid. DeedRegistration's only legaleffect is that it gives the registeredtransfer priority over any conflicting unregisteredtransfer. The first transfer registeredprevails, so it is the date of probate and registrationrather than date of signature that determines what claim prevails and, in the case of conflicting deeds of sale, which claimant will actually get the land (s. 6).s9 So for example ifA sells to B and B does not probate and registerthe deed of sale, and then A sells to C and C does go throughthese formalities, C will gets the land. 96. Bentsi-Enchill and Zarr (1966) review these provisions in some detail and make several critical points. The provisions resemble closely those still in operation in some US states. Those states are however largely regarded as retrograde in their registration laws, providingweak tenure security only made tolerable by landholderspurchasinginsurancepolicies for their titles. The breadth of coverage of the Liberian law is however much wider, includingnot only with major dealings inlandsuch as sales and mortgages but "all" instrumentsaffectingland. In Liberia though, while registration of an instrument is technically mandatory(the statute uses the word "shall"), it is in fact effectively voluntary, as no penalty is imposed for failure to register. 35 97. Today, a more significant problem with the deed system in Liberia is its partial collapse. For example, the deed documents are located in several different institutions rendering it impossible to conduct any searches of sales, transactions, etc. In the current system, at the county level, the registers are maintained by the clerks of the probatecourts. Those registers, when filled up, are sent to the Office of the Registrar of Deeds, now located in the NationalCenter for Documentationand Archives (NCDA) for conservation. This is the case for recentdealings in land.However, prior to 1977the archives andthe deed registerswere located in the Department of State, which later became of Ministry of Foreign Affairs. While the deed registers and other land documents in the possessionofthe Department of State should have been transferred to the NCDA once it was created, the staff responsible for these documents resisted the move, and today the Minister of Foreign Affairs certifies copies of deeds registrationfrom these older volumes. The deed registrations after 1978 are in the Deed Registry at NCDA. In addition, important land documentation is also stored in at least two other repositories in Monrovia, one being the Department of Lands, Mines and Surveys, the other being the PresidentialMansion, where records of original deeds from public land sales, settler allocations, and aboriginaldeeds are said to have beenretained. So a lawyer seekingto trace a chain oftitle to verify the validity of a deed may needto beginat NCDA and later, move back alongthe chain of title into the registers at ForeignAffairs and then perhaps to the Department of Lands, Mines and Surveys. Needless to say, this is dysfunctional and results in confusion and an inability to track where one's documents are. In addition, there is no adequate indexing by grantors, make finding records of particular transactions extraordinarilydifficult, and renderingthese records much less `public" thanthe law requires. 36 98. Another problem is that these records are in dire condition. Many have been destroyed or lost during the conflict. Officials remember that during the worst times they bought seeds and nuts from street vendors in paper spills that on closer examinationprovedto be deeds or pages from deed registries. Other records are simply in an advanced state of decomposition, being kept in conditions that ensure rapid disintegration. At Foreign Affairs, damp sea air blows in on them through open windows. They are not secure from tampering, and there are reportedincidents oftamperingwith registers involving suborned staff. 99. To make any headway to restoring to reforming land tenure in Liberia, it is urgent that these documents be gathered together in one location for professional management, and that they are properly indexed, digitally copied, and entered into a computer-based system. Some fragmented efforts have been made, includingthose of UNMIL (in Tubmanburg, UNML had distributed a form for Land Commissioners to use in recording landrights and documents), but a far more coordinated and urgent effort is needed. It seems clear that the NCDA is the most appropriate venue, and the Office of the Registrar of Deeds in the NCDA is doing its best. But the NCDA has lost the building designed for it to the National Investment Commission, and it is clear that thejob cannot be done inthe present very constrained and inappropriate premises of the NCDA. Restoration of the original building to the NCDA should be apriority. 100. Apart from the conservationof existing records, the system for adding new deeds and other instruments affecting rights in land to the registers is also in difficulty. In each Country, there is a County Lands Commissioner appointed by the President. Working under his supervision is the County Land Surveyor, who is a part of the staff of the Ministry of Lands, Mines and Energy. The Probate Court of the County is a key step in the process by which new deeds maketheir way to the NCDA. The FinanceOffice at County levelmust collect the requisite fees before probate is completed and the document sent for registration.That is too many offices to go through, and not all of them are able to play the role expected of them. They lack the resources they need. The Minister of Lands Mines and Energy estimated that there are over 200 surveyors in the country, but warned that many of these have very low levels of technical competence. Those surveyors posted to county governments lack access to vehicles and equipment, even the most rudimentaryequipment, and there is no up-to-datefee schedule on the basisof which these staff can charge for their services. 101. Equally important, however, these localofficials do not appear to have adequate direction from the center. The incumbents of these offices sometimes do not know the criteria they are to apply or the procedures required by law. They do not have copies of law or regulations. They are in many cases "winging it", for better or for worse. They need urgent interimguidance from the agenciesresponsible for them, on how they are to performtheir duties inpresent difficult circumstances. Becauseofthe number of different agencies involved, this will be challenging. Re-equippingthese officers is perhaps less urgent that providingthem with that direction. A possible approach to improving the system would be to assemble a central government technical task force headed by MLME with members from all the key agencies, to hold country level training and problem-solvingworkshops with staff there. Based on the first four or five of these workshops, a set of interim guidelines could be drafted by the task force, reviewedat a workshop of select county levelstaff in Monrovia, andthen issued. 37 4.2 The Land Registration System 102. During the 1960s, there was a growing chorus of criticism of Liberia's Deed Registration System and calls for adoptionof a Land Registration System (also called a Title Registration System). The latter is based upon Australian practice, the so-called "Torrens System" Model, first used in New South Wales.61 The defining characteristics o f a Land (Title) Registration System are: a) The Register is organized by parcel, each parcel (and parcel register sheet) bearing the same unique identifier. b) The coverage is comprehensive, with the Register for a locality being created through a systematic and participatory field process in which all claims inthe specified area must be brought forward and are vetted for inclusion inthe Register.62 c) Very strong, often conclusive legal effect is given by law to a right shown in the Title Register, that right being unchallengeable by other claimants except in very narrowly defined circumstances. 103. Such a system registers each parcel of land and the rights attachingto that parcel, rather than registering deeds which embody claims to rights to land. Such a register is known as a Land Register, because parcels rather thanjust documents are registered, but also as a Title Register, because the title to the parcel is authoritatively registered, rather than just documents. The term used in Liberia i s Land Registration. 104. Such a system is widely and quite correctly regarded as superior to Deeds Registration. The World Bank and other donor agencies have generally limited their support o f land registration to systematic registration under land registration systems. 105. I n 1974, a "Registered Land Law" was enacted, becoming Chapter 8 of the Liberian Code of Laws Revised. This is a land registration law. UNDP sponsored the new law, and mobilized DFID technical assistance to produce it. It is long by Liberian standards but well-ordered, clear and precise, with considerable attention to procedural detail. This is appropriate in a land registration law, because the integrity o f the process o f adjudication o f title i s essential to the relatively conclusive legal effect provided to the result o f that adjudication. The 1974 Law is in most respects a model, though o f course there are some particular provisions that might be improved. Annex E provides a more detailed review o f this law, including citations to particular sections. A more summary treatment will be provided here. 106. The Registration Law applies throughout Liberia, and is intended to be implemented as expeditiously as possible to replace the Deed Registry system. The Deed RegistrySystem would thus remain operational inthe rest o fthe country, untilthey were reached in time by the systematic registration process. This means that the country must runtwo systems in parallel for some years. This is the normal approach in such transitions, and necessary because the new systemcan only gradually be extendedthroughout the country. 107. The organizational structure for implementation for the new law draws upon the existing machinery used for Deed Registration. There is still a special role for the Probate Court, and the Registrar o f Deeds is also the Registrar o f Lands. The National Archives is the location o f the Registrar o f Lands, as it is for the Registrar o f Deeds. Systematic registration is set in motion when the Minister o f Lands, Mines and Energy declares through the local Probate 38 Court that titles in a specified area will be adjudicated and registered. Holdings are demarcated and the claims recorded. A referee hears and decides disputes, and in decidingupon claims is to base decisions upon good documentary title, or failing that, open, peaceful and interrupted possession for twenty years or more. If there is a possessor who is unable to provide sufficient proof to be registered as an owner, he can be tentatively recorded as owner subject to substantiation within six months. Ifno private rights are established, the land should be recorded as public land. A party unhappy with the decision of the referee may appeal to the Supreme court. 108. I t is important to note that a customary right is neither registrable, nor is its existence the basis for registrationof a commonlaw right. Therefore, customary rights cannot be registered and utilizing this system as is could cause more inequity in the already distorted land system. The Law prescribes how tribal reserves and communal holdings should be shown on the register, as so provide insight into the official thinking on their legalnature. The landover which such rights exist is to be registered as public land, and these tribal reserve or communal holding rights are to appear on the register as encumbrances upon that public title, as would leases or mortgages or other real rights encumbering an ownership title. Possession is, and possession is to some extent a surrogate for customary right. Such possession will in most cases have originated in a right under customary law, but reference to the fact of possessionrather than the customary right makes it clear that a common law or statutory tenure is to be registered. This aspect of the Law deserves review andpossibly reconsideration in light of innovative approaches in a number of other Afiican countries in recentyears toward registering customary rights. 109. Registered rights are under this law (as under most land registration laws) are relatively secure. A registered title can be set aside if fraud proved in action filed within ten years from final order for registrationfiled inthe court where registrationproceedings were held. Where the right has been transferred to an innocent purchaser for value without notice of the fraud, he will be protected. Absent a fraud raised within that period, however, registration actually confers a clear title unaffected by any unregistered rights. The Government will indemnify anyone who relies on the information shown on the Register and suffers thereby. Registeredlandis not affectedby prescriptionor adverse possession. 110. Although this system never became active, systematic registration was piloted in several locations in Monrovia in the second half of the 1970s, running into the 1980s.UNDP initiatedthe work, but other donors includingUSAID andthe World Bank later providedfund for different sites, the Bank under its Monrovia Urban Development Program.63In all, nine pilot areas in Monrovia were surveyed and adjudicated. The process moved more slowly than expected, not unusual in a pilot context, and the 1980 coup and its aftermathpreventedthe work for most pilot areas being carried through probate stage to final registrationof title. Staff of the Ministry of Land, Energy and Mines who were involvedinthe processestimatedthat perhaps 560 titles, from areas 1 and 6, were finally registered. Most of the work was not brought to conclusion because of the political uncertainty into which the country declined after 1980. Many of the records of this work, partially completed, have been lost or destroyed. In fact, the administration of this law was never fully established, and there is at present no working system under the 1974 Law for registeringdealings in the land covered in the pilots. Because of this, landholders in the pilot areas havereverted to the system of DeedsRegi~tration.~~ 111. The fact that the 1980 coup and uncertainty that followed brought this work to an end should not obscure the fact that problems and delays seems to have affected the pilot work. The Bank's assessment of the activity6'notes conflicts between the Ministry of Lands and the Ministry of UrbanDevelopmentthat crippled implementationof its pilot project. It indicates 39 that o f the 1,700 parcels surveyed under the project, only 241 titles were registered, and that after 1984 no further claims or registrations were made. The report cites several issues identified during project design but were never resolved, and which plagued the implementation o f the pilots. These included (p. 13) ambiguities concerning the authority o f customary and government officials, opposition by large landowners and the African Methodist Church to land taxation facilitated by registration; uncertainties about the impact of measures to clear titles on low- income residents, and lack o f cooperation by the courts and various government agencies. 112. For the time being, then, the Deed Registryis the operationalsystem. That system is valuable in itself, but it also provides an important basis for proving rights when systematic registration takes place under the newer Land Registration System. The Deed Registration System should ultimately to be replaced by the Land Registration System, but it will take several years to accomplish that replacement, locale by locale. Based on the time needed in other countries, the very rough estimate o f the period required to implement land registration for those areas where deeds predominate and are intact and traceable is ten to fifteen years, and for the entire country thirty years and likely more. This means that the Deed Registry system, though "on the way out", cannot be neglected or allowed to deteriorate. 4.3 Recommendationsfor Improvingthe Deed Systemand Movingforward with Land Registration 113. The Deed Registration System is in a state of substantial disrepair, as suggested earlier in this report. This means that the old system must be gotten back up and running reconstructed and maintained. At the same time, the new land registration systems should be assessed, piloted and then gradually expanded. 114. The Ministry of Land, Energyand Minesis the key institutionin the management of both these systems. The needs are pressingand the prioritieswill not be easy to set, with resources so limited. Financial and technical support o f assistance in this area should be a priority for the Bank and the donor community as a whole. The Ministry o f Land, Mines and Energy has been activity seeking consensus on key tasks in the land sector. Two documents are particularly helpful in understanding the state o f work. The first is 150-Day Plan o f Action by MLME, March 1, 2006.66It identifies a number ofkey needs inthe land sector, citing the lack of a national land policy, a national institutional framework for land administration that is "improperly designed, uncoordinated and ineffective", confusion as to responsibility for management o f public lands, and a dismal lack o f trained staff, facilities and equipment. It is however relatively weak in concrete proposals for the land sector, as opposed to the mines and energy sectors. The lands portion is attached to this report as Annex F. 115. The second document is a "Memorandum of Understandingfor the Conceptual Understanding of the Challenges to Land Title and Registration and Corresponding Resolutions to Said Challenges," October 21, 2006.67It identifies problems as "1) lack o f coordination between ministries, 2) lack o f transparency, 3) lack o f information, 4) lack o f coordinated adjudication system, 5) lack o f complete clear chain o f title and land records." There is a list o f recommended solutions and points about the way forward, some quite generic such as institutional coordination and capacity strengthening, but other more specific, such as "ensure the effectiveness o f the deed system while fast tracking the conversion to a title registration system." This Memorandum is provided as Annex E. 40 116. In terms of starting to put together a pilot testing program for the land registrationsystem, clearly a first step would be the review of earlier project experiences, and through donor post-facto evaluations. It seems likely that some key policy and institutionalissueswould needto be resolvedbefore pilot work shouldbegin.These extendto the judiciary, in that the ultimate resolution of disputes raised during adjudication rests with the courts, and in the past - even before the years of troubles--they appear to have lacked the will and integrity to resist political pressures. Any national legal process depends ultimately upon judicial enforcement. In addition, while some staff trained in the pilots remains in the Ministry, mosthavemovedon. Substantial re-equippingandtrainingwouldbenecessary. 117. The difficultiesin implementationof the 1974 Land RegistrationLaw seem to have had less to do with any defects in the Act itself than with lack of clarity in policy and land law, and institutional issues. Three areas stand out for rethinking.The first is institutional, in the sense of organizational. Involvement of a multiplicity of government agencies in the titling process, such as occurs inLiberia, tends to seriously undermine efficiency. The World Bank and other donors have increasingly stressed that for effective implementation, locating all needed functions in a single institution is paramount. Effective implementationrequires locating all needed functions in a single institution. Donors sometimes delay commitment to projects until such changes are made or include the institutional changes as conditions on their grants or 118. The MLME (its Survey and Lands Department, including its Adjudication Unit) pla the key role in land registration.(See the organizationalchart of the Ministry in Annex E.6) But the involvementof the Probate Court needs review for value-added, as does the 7 locationof the Land Registry in the NCDA (an arrangementwhich is quite unusualthough not necessarily inappropriate) and arrangements for payments of fees and taxes to the Ministry of Finance.The unifiedmanagementfor the two registries underthe 1974 Law is an unusualfeature of the institutionalarrangements, but one which makessense. 119. In moving forward with land registration, there is a clear role for private surveyors. It seems that the survey under the Law must currently be done by the Department of Lands and Surveys.This is well enoughduringthe pilot stage, but for effective replicationon any scale, use of privatesurveyors is necessary. 120. There is also the more fundamental matter of customary land rights. As noted earlier, recent decadeshave seen a substantialrethinkingof the viability of customary landtenure systems, and it is generally accepted that these have a continuing role to play in many African land tenure systems. One approach now beingtaken in a number of countries, including South Africa, Ghana, IvoryCoast and Malawi, is the registrationof customary rights. Insome cases the emphasis is on registration of a community, communal right, in others on the registration of inheritedindividualrights under custom. This depends in part upon the content of the particular land tenure system but also partly on the development ideology of the country concerned and its relativeaffinity for individualor communitylandrights. 121. I t is important to realize that any land registration on customary land may risk elite capture. In many African countries governments have decided that registration of land rights in such circumstancesshould be to the communityin the first instance, with registrationof individualholdings as a subsequent step. Mozambique is an example of a well thought-through approach on those lines. However, this will only work if there is a level of integrity at the customary level. Clearly, corrupt or power-wielding chiefs can make land access untenable, particularly if they oversee the land allocationprocess. This risks elite capture and a returnto 41 conflict. Sociological studies and a clear understanding on what constitutes "community" and how the land allocationworks on customary land will help improveadministrationof communal lands. 122. I n Liberia, customary rights recognizedby law, such as the Tribal Reserveand the Communal Holding, are registrableinterests. Under the 1974 Land RegistrationLaw, those interests are registrable as encumbrances on the public ownership right, as discussedearlier.But there is no provisionfor the registrationof the customary land rights of individuals and families as customary rights. During systematic registration, long term possession may be the basis for recognition of private ownership of land originally held by customary right, but this alters the nature of the right. It makes it fully individual, typically in the male head of household. The question is, is this necessary a good thing? There is a good deal of experience with individualization (often referred to incorrectly as "privati~ation")~~of customary land rights through systematic landregistrationin Africa, with Kenyathe most fully documentedcase. Work beginning there during the colonial period and still being carried forward today has been the subject of considerable research and analysis. Such individualization often strips the land concerned not only of community interests (an anticipated impact) but also - and this was not appreciated by the planners -- of secondary customary interests of other individuals, such as wives or other family members. Such individualization proved unsustainable, with most individuals continuingto manage the land under custom and refusingto register successions or transactions, leadingto the registryrapidly goingout of date. After a generation, the reality onthe groundbore little resemblanceto the pictureshownbythe registry record^.^' 123. A comparative study funded by the World Bank and USAID in the early 1990s found that in several African countries such individualization of peasant holdings had not produced the benefits that economistsimaginedwould flow from individual property rights. Notingthe evolving nature of customary rights, the authors insteadrecommended limited use of land registrationbut put a greater emphasis on adaptation of customary land tenure.'? Given the rethinkingwhich has gone on concerningthis issue inother countries inthe region, this and other issues73should be reassessed in Liberia if it wants to move towards individualizing customary rights. If Liberia chooses not to register customary rights, the question becomes how to ensure ease of access to land as well as improved security on customary lands. The most frequently discussed alternatives are the community-based land certification program in Ethiopia and the programfor registrationof communitylands inMozambique 124. Inthe final analysis, one issue is clear- there is a needfor Liberiato have a clear policy onthe nature, legal status and registrationof customary rights, and a viable programfor recording and protectingthose rights. 42 Chapter Five Land Institutionsin Liberia 5.1 FragmentedAuthorityinLand Administrationand Management 125. This chapter seeks to highlightsome issues concerning land administration institutions in Liberia. Even for formal sector institutions, the relevant agencies of Government, there are little information available on capacity, but a study commissioned by the Governance Commission (Johnson 2007) does make clear the extent o f the fragmentation among different agencies o f key roles with regard to land. This is o f concern, because a more efficiently organized and strengthened land administration machinery will be pivotal to the implementation o f a coherent new land policy for Liberia. Without immediate action to improve land institutional capacity, many o f the actions prescribed inthis paper cannot be implemented. 126. The listing o f roles o f different agencies below will give a sense o f the degree o f fragmentation o f land functions among different agencies under the present legal framework: Ministry o f Lands, Mines and Energy: responsibility for supervising Country Surveyors and so involved in public land sales. Responsible for land registration, and has a broader mandate than it is currently able to address. Ministry o f Agriculture: negotiates and administers agricultural concessions, including industrial crops such as rubber and palm oil. Ministry o f Internal Affairs: responsible for land matters including interactions with traditional authorities over land, and supervision o f the Country Land Commissioners, who play the key role in public land sales and deed registration? Ministryo fPublic Works: responsible for landuse zoning. Ministry o f Finance: responsible for collection o f fees in connection with registrations and for implementation o f a real property tax under Chapter 20 o f the Revenue Code o f Liberia (2000). Ministryo fJustice: responsible for Probate Courts which play major certification roles under the country's two land registration systems. The Ministry o f Foreign Affairs: holds early deed registers and issues certified copies o fthose documents. National Center for Documents and Records/National Archives: holds more recent deed registers and land registers from pilot systematic land registration. The Forestry Development Authority has broad legal authority over forests and forest land, covering much o fthe land o f the interior o f Liberia. The Environmental Protection Agency administers rules and guidelines for protection o f wetlands, wildlife and biodiversity that impact land use in some areas o fthe country. 43 5.2 CapacityConstraints inthe Key Land Institution Figure3: OrganizationalChart, Ministry of Land,Minesand Energy MINISTRYOFuNm,MINES6ENERQV C R O ~ T I O WART N ?wLI ix EugmH.Shaanrm Job Thaw TICHNlcAL ASSISTAM MPilSTER m m m m I - - _ -- 1 127. The main institution that is responsible for key land management and policy decisions is the Ministry of Lands, Mines-andEnergy. The vision of the Ministry (Excerpt, MLME, One Hundred andFifty Day Action Plan, March, 2006) is "to achieve a satisfactory level of responsiblelandadministrationand effectivepublic landmanagement, whereby a nationalland policy is adopted and enforced, security of tenure is guaranteed, disputes are reduced, equitable access to land is available to all Liberians, and land based economic production i s enhanced." Achieving this will take time and hard work. Existing Land Administration and Management systems are wanting. The land tenure system- the laws, regulations, guidelines, institutional framework and administrative mechanisms by which people gain access to economic opportunitiesthrough land- can and should be improved. It must be revisited and reformed.This reform interventionmust start as soon as possible.This will involve legislationand will take time, but inthe short term, efforts must be madeto improvethe current situation,to the extent possible, within the framework of existinglaws. 44 128. Other problems abound: There is no national land policy; and the national institutional framework for land administrationand management is improperly designed, uncoordinated and ineffective. No agency o f the Central Government seems to be responsible for or engaged in the management o f public land; as such the public domain is apportioned and allocated for various uses without land use regulation; and government can hardly find land for public buildings and other essential public uses in urban areas, including specifically the capital, Monrovia74. 129. There is an acute shortage of trained land professionals; hence, the practice o f land surveying is now in the hands o f lower level technicians and unscrupulous practitioners whose actions have filled court dockets with unresolved land disputes cases. There is no cadastre and no effective and reliable land information system. As a result, security o f tenure is virtually non existent in Liberia; a situation which hampers development and fuels conflicts. 130. The Department of Land Surveys and Cartography is in a de lorable state. The Bureau o f Lands & Surveys has been relocated from its rented building on 9 Street, Sinkor, and P i s now sharing space with the Liberian Cartographic Services in a dilapidated rented building with inadequate furniture, no electricity, and hardly any office equipment. There is a good quantity o f topographic and cadastral maps available between the two Bureaus, which are currently at risk for lack o f adequate storage. These two essential national institutions must be properly housed, and adequately equipped, if they are to be effective in curbing the undesirable land situation. 131. The cadastral survey and title adjudication activities of the Bureau of Lands & Surveyswere disrupted as far back as the late 1970s and have never been resumed.Without the resumption o f these activities the current deplorable land administration situation cannot be adequately addressed. There is a dire need for an integrated National Land Information System which shall be interlinked to a legal property cadastre, fiscal cadastre, a mineral property cadastre, etc. Without adequate information on real properties the problems o f land disputes, illegal sales, improper urbanconstruction, squatter's encroachments cannot be resolved. 132. All three of the activities of the LiberianCartographicService- nationaltopographic base mapping, national geodetic control establishment, and national geographic research - have also ceased since the late 1980s. The UN system in Liberia has established its own facilities, neglecting our national institutions. Almost all the thematic maps published by the UN system are derived from base maps produced by the Liberian Cartographic Service; but without any reference. Liberia cannot develop without maps; hence the national mapping agency, the Liberian Cartographic Service, must be reactivated urgently. 5.3 The Creationof a LandsCommissionto guide the Reform 133. Strengthening institutions and putting together land reforms takes time, careful planningand above all, stakeholder participation.The President has indicated that she intends to appoint an independent Commission to deal with land issues.75This is an incredibly important initiative, and there has been quite positive experience with Commissions o f this nature in other countries in Africa. Clearly, prospects for significant reform and coherence in reconstructing the land system are poor in Liberia without such an initiative. Such a Commission can be a political plus for government and can help generate not only good policy and strategy but the enthusiasm and popular support needed to achieve important ends inthe land sector. 45 134. The Governance Commission was asked by the President to take the lead in the creation of a Land Commission. A Steering Group on Land was established within the GC, pulling ina number of stakeholders, especially on the official side. A number of working groups have been established, includingthose for a) legalissues, includingcustomary and statutory law, b) natural resources, including land, minerals, and forests, c) local governance, d) historical context, e) technical, including GIs, f) investment, g) public awareness and education, and h) lessons learned, including review of land tenure in other African states. Until the Land Commission is organized, the GC is serving as a secretariat and, in cooperationwith the Institute of Research of the University of Liberia, is coordinatingthe research activities of the working groups. The GC held a Data ReconciliationWorkshop for the working groups on Land and Property Rights in Liberia on May 25, 2007, with each of the working groups presenting a preliminarypaper, inthe natureof issueidentificationpapers.76 135. The creation of a Land Commission requiredenactment of a law by the Legislature. Compliance with a constitutional requirement of establishment of autonomous commissions by law (Article 89 of the Constitution)needs to be met in the case of the Land Commission as was the case for the Governance Commission. The GC has submitted a draft act to create the Land Commission to the President, which the President will, perhaps after further discussion with the GC, forward to Cabinet for discussion and then on to the Legislature for enactment. The GC hopesfor enactmentby September 2008. 136. While there is considerablediversityin the natureand tasks of such commissionsin Africa, it seems that it is the Policy and Law Review Commission model that is most relevantto the current needs in Liberia. Commissionswith a mix of functions, involvingthem not only in policy and law reform but in dispute resolution or in land administration, will have difficulty accomplishing any ofthose ends. Generally implementationshouldremain inthe hands of the line ministries, though there may be some exceptions to this, for instance where there is a needfor an initiativeofa time-boundnaturethat no one governmentagencycan do effectively by itself, since several agencies need to be involved and ~oordinated.~~ . (See Annex C for a presentation onthe creation ofNationalLandCommissionsby JohnBruce). 137. Creatingan independent commissionto carry out such work has several benefits: 1) Expandingparticipationindecisionmakingfrom within andbeyondgovernment; 2) Independentfact-findingandpublic consultation to informdecision-making; 3) Limiting influenceof vested interests in government; 4) Bridginginstitutionalcompetitionbetweenministriesandother publicagencies; 5) Providinga forum for forgingcompromises; 6) Limitingdirect politicalinfluenceover outputs, and 7) Achievingcreditabilityandpoliticaldurability for outcomes 46 Basedon the experiencewith Land Commissionselsewhere, it is suggested that: The Commission should have a diverse and non-partisan membership (including both official and civil society members), which should result in more durable policy and law reforms. Ifthe relevant ministrieshave staff onthe Commission, they should be ina minority and serve inpersonal, technical capacities rather than as Ministry representatives. Critical assets for such a Commission include a strong and respected Chair, a high- capacity secretariat (administrator, secretary and finance officer), fact-finding capacity and transport. The secretariat should be hired directly rather than seconded and must be full-time. Technical experts should be appointed to secretariat, and contracted for particular tasks. Broad public consultation with stakeholders is critical to quality and ownership o f recommendations and decisions; good process and transparency are key. The primary stakeholders to be consulted are the public, especially land users, not officials. Studies o f a participatory appraisal nature are most effective for fact-finding. Consultation must hear concerns but also provide an opportunity to getting feedback on potential solutions; it should not be only a forum for venting complaints. 10) Publicity can build expectations and momentum for recommendations. 11) The policy and law reform role should include participation in the supervision o f legal drafting and presentation o f revised laws for enactment. 139. The President should take prompt action to establish this Commission. If the Commission is soundly constituted, with clear responsibilities and terms o f reference. It is likely that the Government o f Liberia will be able to mobilize the financial support needed for the Commission from international and bilateral donors." The Commission with its limited financial management capacity will be overwhelmed if it must deal with the reporting and other requirements o f several donors. Considerable should be given to one multilateral donor institution taking the lead in providing such assistance (the World Bank and FA0 both have the capacity and experience to do so), with bilateral funds channeled through that institution. 5.4 Recommendationson StrengtheningLandInstitutions 140. The Deed Registration System has the generic limitations of Deed Registration Systems but one key problemis that there are too many institutions involved in the registry system, and there is a need to simplify and bringthe system under one institution, preferably the Ministry o f Lands, Mines and Energy. But the system does work, if slowly, and many people understand it well. The Land (Title) Registration System, which is not implemented, is based on quite a good law, but it is not well known or tested. This needs to happen. The failure to provide for registration o f customary rights is also an unfortunate omission, and needs to be remedied at the first opportunity. The characterization o f tribal reserves and communal lands as use rights over state land also deserves to be re-examined. But selective amendments should be sufficient. 141. The larger issue will be the extent to which the land titling system should be expanded into the lands currently under customary rights, especially in the interior, and if it is to be extended to those lands, how it would be applied.A paper prepared by the Legal Issues Sub-committee o f the GRC Steering Group on Lands for a 2007 GRC workshop voices a common concern: "Titling may put the rural poor and illiterate at the mercy o f the rural elite (the very group who should be speaking on behalf o f rural communities) as is reported to be 47 happeningcurrently... How does the landtenure system handle land as a social asset which may changeto a commodity to be sold to the Monrovia-wise"sons ofthe 142. The major task in the land administration area is rebuildingthe human and capital items that form the basis of the land administration system: trained staff, buildings, survey equipment, and vehicles. While the Land Registration System will in time replace the Deeds RegistrationSystem, bothwill be neededfor a generation.This meansthat their problems needto be tackled in parallel. In terms of Land Administration machinery, the Land Registration Law's provisions on implementationmachinery are helpful.It does not set up parallelregistries.Rather, those institutions that are already involved in Deed Registration (The Land Commissioner, the Surveyor, the Probate Court, the Registrar in the National Center for Documentation and Archives) are responsible for Land Registration. At County Level, there is one system to be strengthened. 143. This strengtheningwill take time. In the meantime, the MLME needs to take the lead in drawing together the various institutions involved to ensure the existing Deed Registrationsystem is working. It could assemble a technicaltask force with members from all the key agencies, to hold county-leveltraining and problem-solvingworkshops with staff there. Based on four or five these workshops, a set of interim guidelines could be drafted by the task force, reviewed at a workshop of select county level staff in Monrovia, and then issued. This activity could also generate a list of proposed legal amendments for DeedRegistrationand Public Land Sales. 144. At the same time, MLMEshould be seeking the assistance need to prepare for a re- piloting of the Registered Land Law. The evaluations of the pilots of the late `70s and early `SOs, cut short by political events, indicatedsome problems. This experience should be consulted closelyto avoid repeatingthose problems, andthere are staff inthe MLME who were involvedin this pilot work and are themselves a valuable source of information. Once capacity in MLME is upgraded, the system needs to be re-piloted.That capacity to do a pilot does not now exist, and a short-term objective shouldbe creatingthe capacity neededto carry out a pilot.*' 145. The courts and land institutions clearly need rebuilding. They lack not only trained staff butthe copies of the LiberianCodeRevisedandthe LiberianLaw Reports, which reportsthe decisions of the Supreme Court, the precedents which should guide the lower courts in their decisions. A common law system cannot function without these. The buildings once occupied by courts have sometimes been destroyed or co-opted for other government purposes. There is a needfor rebuildingbothphysicaland human capital. 146. Finally, there is urgentwork to be done in the conservation of records of land rights, many of them damaged and deteriorating, in inadequate storage facilities at various locations. This is not an exercise in history, but an urgent task of conserving the proof neededto prove and defend property rights. This is an area where a Lands Commission, if such a Commission is appointed, could take an initiative that would involve the various institutions involved in remedyingthe present very unsatisfactory situation. 48 Chapter Six A Synthesis of RecommendedActions 6.1 RapidRemediation Measures 147. The chaos in the deeds registration system and the dysfunction of the courts system in addressing land disputes may call for four rapid lines of actions: (1) a 6 month moratorium on issuing new deeds and sales o f large tracts o f land till there are more transparent measures and guidelines put in place (2) an immediate formation o f the land commission; (3) an immediate internal intervention to restructure the institutional framework and improve the effective capacity o f the Department o f Lands, Surveys and Cartography, in order to arrest the proliferation o f unprofessional surveys and fraudulent land transactions; and (4) a donor assisted intervention to assess the prevailing situation and formulate a donor acceptable national land administration project, which will address a range o f problems including policy deficiency, law reform and institutional framework. 6.2 Short-to-MediumTerm Interventions 148. The discussion below and suggestions in this chapter are preliminary in nature because they require further discussion within Liberia itself, They come at a very early stage in the Government's attempt to think through these issues, which are expected to be the topic o f a Land Commission. They are not intended as the last word, but as grist for that mill. The chapter first describes and discusses the issues and then puts forward some detailed recommended options. At the end o fthe chapter, a priority matrix is presented. Insecuritvo f Tenure in a Post-Conflict Context 149. Issue:Security o f landtenure intoday's Liberia is weak to non-existent, the result o f a combination o f factors: 0 dislocations and illegal occupations o f land caused by civil war; 0 loss and disorganization o f land rights documentation; 0 increasing fraud and malpractice in the land sector resulting from the first two factors; 0 debility o f agencies responsible for land administration, and weakness o f the courts and other land dispute settlement institutions. 150. The situation has a political edge, provided by the country's quasi-colonial history, in which governments dominated by Amero-Liberian settlers and their descendents asserted public ownership o f land from the territories o f traditional local communities o f the interior and the right to alienate that land to outsiders. Alienations o f land and the resentment it aroused contributed to the descent o f Liberia into near-anarchy. Those tensions continue, muted by exhaustion, but very real. Unruh (2007) warns that "Left unattended, land issues can provide significant potential for renewed confrontation". 49 Options 151. The restorationofsecurity oftenure on an equitable basis is essentialto the developmentof Liberia's economy and democracy. 0 There is an urgent need for major investment in reconstructingthe systems of land law, landadministrationand landdispute settlement. 0 There needs to be a thorough review of land policy and law, and reconstructionof the system of recordsof landrights. 0 The declared intentionof government to create an autonomous commission to deal with land policy and law is promising, as such commissions have been important vehicles of progress in land sectors elsewhere in Africa, and the proposed commission deserves the support of all stakeholders, including the donor community. LandLaw:The Needfor Reform 152. Issue: The land law of Liberia i s pluralistic, and consists of a civil (statutory and judicial) law and customary law. The interfaceand interactions betweenthese systems in Liberia is vague and unsatisfactory and requires reconsideration and reform. Other countries in the common law tradition in Africa have pursuedstrategies of integrationof customary rules intothe common lawby statute orjudicial decision, butthis processhashardlyoccurredinLiberia. 153. Issue: The formal system of private ownership of land is fundamentally sound, with privateproperty rights promisingsubstantialsecurity oftenure, creating incentives for investment and goodhusbandry of landresources,and allowingfor the free functioningof land markets.But much in that land law is antiquated, either technically or politically. Provisions which reflect ethnic distinctions should be eliminatedand prohibitionof land ownership by foreigners should be carefullyreassessed. Options 154. Inparticular,there is a needto re-examinethe provisions o f the law on public landand its alienation, 0 the law concerningownershipofnaturalforests, and 0 the rules andregulations on the "hinterlands", the interior ofthe countrybeyond the zones of early Amero-Liberiansettlement. 155. All reflect extensive claims to state ownership of land and resources on land which hasbeengovernedby customary law.There is a needfor a careful rebalancingof intereststo both enhance rural livelihoods and permit the exploitation of valuable resources in the national interest. It is critical that government recognize the propertyrights of local communities.It will be important to survey and register boththe land of rural communities and the remainingpublic landandthe landof ruralcommunities. It would be preferable ifGovernment couldmove slowly and very carefully on with any public land sales until these issues are resolved. The criteria and pricingof such sales will ultimatelyneedseriousreconsideration. 156. In addition, there are fundamental issues of equity that need to be considered. Substantial areas of land taken from local communities for concessions have been left largely 50 utilized, and some of this land should be returnedto those communities. There is considerable irregular occupation of land of others, due to dislocations during the war, and to encourage utilization of such land there is a needto find ways to allow those occupants who have been using the land productively inrecent years to remain onthe land, while at the same time recognizingthe legitimate claims of those who own the land. 157. The customary law of Liberian ethnic groups is remarkably poorly documented, and studies to establish a fundamental typology and parameters is a priority, as is documentation of the handling of customary law by the Liberian courts. It is important to understand not only the substance of that law as applied but also its processes and the institutions. There is a need to provide stronger recognition and protection to customary rights to land and to realize that objective, to reorient Liberian legal education to address customary as well as other law. Best practice in other African countries suggests a number of options, not all of which are mutually exclusive: e The classic common law solution, selective absorption of customary law into the nation's common law byjudicial recognitionof customary rules; e Ascertaining customary land law and making its content more readily available; e Registration of customary land rights as customary rights (rather than converting them to statutory forms of landtenure); e Modification by legislation of negative aspects of customary land law, such as gender biases, and creating mechanisms for appeals of abuses to administrative or judicial authorities of the state; e Creation of hybrid institutions that administer customary land rights, involving both officials and traditional authorities; and e Modernization of traditional land administration institutions through mechanisms such as registration of land allocations and dealings, and increased public participation in and transparency of decision-making. 158. Consideration should be given to the development, based on a clear land policy, of a comprehensive Land Law. This will require as a first step a careful and critical review of the law concerning land, a task which has not yet been undertaken. A comprehensive land law would need to harmonize the operation of the statutory and customary law, and perhapsprovide for their eventual integration. A Lands Commissioncould initiate and frame the basics of such a law. Dispositions of Public Land - Issue: 159. 1. Extensive and often ill-considered dispositions of public land through public land sales and concessions have left valuable land idle, beyond the reach of local communities, and this has generated a heritage of resentment.This Government has been reluctant to resume these land allocations, and is thinking through precautions. But pressure will build to resume these dispositions and this is now taking place. How can the mistakes ofthe past be avoided? 51 Options: 160. There has been a de facto moratorium imposed for public land sales, and it should only be resumed when more reliable and transparent processes for assessing applications and determining land availability are in place. There is a need to move away from the archaic statutorily determined land prices to price approximating market value, with an exception to communitiespurchasingthe landthey occupy. 161. .Where larger areas of land are neededfor development, they should be providedon concession. Strategies that limit concessionsto an appropriate economic size and limit impacts of community land use should be pursued, such as models involving a nucleus estate and smallholderoutgrowers, with provision made for titling and registrationof the landbelongingto the smallholders. 162. .The Public Lands Act is badly in need of revisionand it will not be possible to deal with some ofthese matters, such as prices for public landsales, without amendingthat law. LandAdministration: The Needto Rebuild 163. Issue: Liberia has two systems for recordingrights in land: a long-standingsystem of Deed Registration and a more recently introduced Land Registration System. The latter is superior, and is intended to eventually replace the former, but this will take many years. The former system must be rehabilitated and maintainedat the same time the latter must be piloted, refinedandexpanded. 164. Issue: The Deeds Registration System is in disarray. Records under that system have been scattered, damaged and in many cases destroyed, and this is encouraging widespread fraud andmalpracticein landtransactions. 165. Issue: The Land Registration System is supported by a relatively strong and modern law, enacted in 1974 but incompletely pilotedat some locationsin Monrovia. It is a title registrationlaw, and its strongpoints are that: 0 The Register is organized by parcel, each parcel (and parcel register sheet) bearing the same uniqueidentifier. 0 The coverage is comprehensive, with the Register for a locality beingcreatedthrough a systematic and participatory field process in which all claims in the specified area must be broughtforward andare vetted for inclusioninthe Register. 0 Very strong, often conclusive legal effect is given by law to a right shown in the Title Register, that right beingunchallengeableby other claimants except in very narrowly definedcircumstances. 166. There is a however needto reconsider some provisionsofthat law, in particularits treatment of customary rightsand statutory rightsoftraditionalcommunities.There is a further needto review carefully issuesthat arose duringthe early pilots, as a basis for further piloting. Options: 167. Inorder for the work aboveto be carriedout effectively: 52 0 There is a needto reviewthe roles and responsibilities ofthe many government ministries and other agencies involved in land administration. Both simplification and decentralization are required. 0 Land administration capacities are very low at presentand there is an urgent need to re-capacitate the agencies involved in this task, notably the Lands and Survey Department of the Ministry of Lands, Mines and Energy. Urgent needs include clearer guidance for field staff, better coordination of land administration and local government, construction o f new facilities, retraining of staff, and re-equipping of survey and other technical units.These efforts should not focus primarily on central government level, but on creation of new capacity at county level, in the context of decentralization. 0 While the Land Registration System will in time replace the Deeds Registration System, both will be neededfor a generation. This meansthat their problems needto be tackled in parallel. In terms of Land Administration machinery, the Land Registration Law's provisions on implementation machinery are helpful. It does not set up parallel registries. Rather, those institutions that are already involved in Deed Registration (The Land Commissioner, the Surveyor, the Probate Court, the Registrar in the National Center for Documentation and Archives) are responsible for Land Registration. At County Level, there is one system to be strengthened. 0 The MLME needs to take the lead in drawing together the various institutions involved to ensure the existing Deed Registration system is working. There is an urgent need to collect, consolidate and conserve deed records, and to digitalize them for easy access in both land administration and land dispute settlement. There is a need for clear interim instructions to officials involved in the deed registration process, and for simplification of deed registration processes. 0 In terms of ensuring a functioning Deed Registration system, MLME should assemble a technical task force with members from all the key agencies, to hold county-level training and problem-solving workshops with staff there. Based on four or five these workshops, a set of interim guidelines could be drafted by the task force, reviewed at a workshop of select county level staff in Monrovia, and then issued. This activity could also generate a list of proposed legal amendments for Deed Registration and Public Land Sales. MLME should also, at the same time, seek assistance need to prepare for a re- piloting of the RegisteredLand Law while ensuring that lessons from earlier piloting are incorporated into the new approaches. For example, the pilot might best be carried out not in a complex and difficult area of urban Monrovia, but in a more manageable peri-urban area, such as the Millsburg area, a heavily fee-simple area with important commercial potential, close to Monrovia. Indiscussing possible pilot sites, the Minister of Internal Affairs warned against starting in Monrovia. "Monrovia is a sinkhole inwhich titling could bog down for fifty years," he warned, referring to complexity and politicization of conflicts over land inthe capital. Land Dispute Resolution: The Need for Diverse Approaches 168. Issue: Land disputes are endemic in Liberia today, the result of the dislocations and illegal occupations of land coming out o f the civil war, and a wave of fraud and malpractice encouraged by the loss and destruction o f land documents. A 2006 study by the Norwegian Refugee Council found that land and property disputes were among the top four protection issues in communities inten of Liberia's fifteen counties, andthat in four counties (Lofa, Grand Gedeh, Sinoe, and Maryland); land disputes were the most common issue. 53 169. Issue: The court system is in substantial disarray and unable to cope adequately with the volume and complexity of land disputes. The county-level circuit courts have original jurisdiction of those disputes. An October 2006 InternationalCrisis Group report on resurrecting the Liberianjustice system found that at least five circuit courts were "completely defunct or barely operational", notes that many appointed circuit courtjudges are still residingin Monrovia because of lack of accommodation at their posting, and concludes that "Circuit court inactivity is paralyzing the justice system in parts of the country". The Probate Courts, again supposedly operating in each county and critical to the deed registration process, are also in a state of disrepair. It is said that a major backlog of unresolved cases has developed, and there is discussion of a special "land court" to handle them The ICG report notes that most such specializedcourts are not functioning, or staffed with woefully unqualifiedappointees. 170. Issue: ADR i s often implemented by NGOs, and experience elsewhere shows that NGOs can be quite effective in this role. However, there is often not enough attention paid to enforceabilityof agreements reachedthroughADR. They are of course contracts, and enforceable as such. But how can that be facilitated? How are the contracts to be recorded, and given legal recognition?What does the law require, and what is practically attainable? Should the agreement with registeredwith a court, or a notary?Should the document be registered in the Deed Registry where the land is located? 171. Issue: There has been some recent experience with "backlogs" of court cases that should induce caution. In Ghana, at the outset of the multi-donor Land Administration Project four years ago, the Judiciary was estimating a backlog of over 70,000 land cases in the High Courts. As work went forward, it gradually became clear that the actual numbers were much smaller, on the order of 7,000 cases. Many cases shown as pendingon court records had in fact beensettledor abandonedandtheir retentionon the court dockets as pendingwas simply a matter of poor recordmanagement. For this reason, a key early step in the development of a strategy for clearing the backlog is an inventory and analysis of the backlog itself, to better understand the work at hand. Within a few years, over 97% of the backlogwas eliminated, the remaining cases being resolved effectively by retiredjudges using ADR within the court system; Ghanaian law specificallyprovidesfor use ofADR inthe courts. 172. Issue: There are aspects of each tenure system that i s utilized by the other. As a result informal documents of various kinds (not deeds or titles) can find their way into the customary system as forms of proof of claim. At the same time informal, customary forms of evidence (the existence of economic trees, tombs, testimony) can be introduced into formal dispute resolution proceedings where titles, deeds, or other formal evidence is problematic.As well the distinction betweencustomary and formal can be used as a form of appeals step, whereby ifresolutionis not satisfactory within the customary system using customary dispute resolution approaches, the same dispute and claimant can move the dispute to the formal system. Overall however most postwar countries experience an aggravation of the formal- informal dualism in landtenure after the conclusion of the war, and so attendingto the large disputing problem is often approached with this dualism in mind. Options 173. A critical first step is to understand the nature and extent of these disputes, and in particularthe backlog of cases in the courts. It may be that strengthening the courts of normal jurisdiction at county level may be more effective than creation of a special land court in Monrovia. A careful assessment and strategy development exercise is indicated. Ghana has 54 successfully dealt with a major backlog o f land disputes in recent years, and offers a model for consideration. 174. In addition to institutional and process solutions for dispute settlement, urgent rule- making on key issues affecting many disputants can have important impacts. For example, rules concerning the following matters have in other countries radically facilitated settlement o f the most common types o f land disputes: 0 Legitimacy and legality o f specific types o f claim, for instance claims o f former landholders from long ago, resolved by a law that clearly made those claims unviable. Rules affecting many cases o f land disputes cause by war, such as criteria for abandonment, which once clarified resulted inthe dropping o f many claims; 0 Creation o f compensation entitlement for those affected when government dispositions o f land were found to have overridden other claims, turningthose claims into claims for compensation rather than land disputes. 175. Today, a variety o f approaches are being utilized to settle land disputes. Inaddition to court adjudication, some with political dimensions are being tackled by a special commission appointed by the President, while NGOs are using alternative dispute resolution approaches (mediation, arbitration) to settle land disputes arising illegal occupations by displaced persons and refugee return. A viable approach in this area will require re-capacitating the courts to deal more effectively with land disputes and making alternative dispute resolution more broadly available. Disputes o f political import will require higher level initiatives, such as special commissions. Moving Forward: The Potential o f a National Land Commission 176. Issue: The constitution o f an independent Lands Commission by the Government o f Liberia is a critical and urgent step. Such commissions have several advantages over normal policy-making processes: 0 Expanded participation in decision making from within and beyond government; Independent fact-finding and public consultation to inform decision-making; 0 Limited influence of vested interests in government; 0 Bridgingo f competitive relations between ministriesand other public agencies; 0 Provisions o f a forum for forging compromises; Limitation o f direct political influence over policies developed, and Creditability and political durability for outcomes. ODtions 177. There is considerable positive experience with such land commissions inpost-conflict and other contexts in Africa, and those lessons need to be drawn upon. Key lessons from that experience are: 0 the need for a membership that reflects the larger society and not only government, 0 the need for a strong secretariat, 0 the importance o f a strong public consultation process, and 0 the need for a commission mandate that empowers it to follow through on its recommendations for a national land policy and land law. 55 178. The Governance Commissionhas been mandated by the Presidentto move forward the creation of a Lands Commissionand should take the initiative to assemble a donor support group for the land sector in general and the Land Commission in particular. That group should ideally be headedby a multi-nationaldonor.Fundsfor the Commissionshould be channeledthroughthat multi-nationalorganization, simplifying the burden on the Commissionconnected with receiving and accounting for those funds. 179. It should be recognized by all concerned that the line ministries and other agencies dealing with land cannot simply await the recommendations of a Land Commission. They will need to move forward in rebuilding their capacities and implementing mandated programs, including modest reforms of their processes through regulations. Because of the number of agencies dealing with land under the current legal framework, the Commission may provide, through informal working groups, the opportunity for these agencies to coordinate those initiativesandconformthem to the prioritiesemergingfromthe deliberationofthe Commission. 6.3 Assessingthe Viability of Land Reform 180. Land reform is a legitimate policy tool. Donors have supported land reform in circumstances such as those of South Africa, where constitutionalprovisions for compensation are robust and are honored by the government implementing the reform. On the other hand, because of the abuses, high costs of land and high levels of political conflict connected with compulsory land taking and redistribution of land (the classical land reform model), the donor community approaches proposals for land reform very cautiously. The land reforms of the 1990s in Latin America proved difficult and were in many cases rolled back by later governments, leaving the net benefits of the programs in question." This has left some major donors, in particular those which supported the Latin American reforms such as USAID under Kennedy's Alliance for Progress, decidedly uncomfortablewith landreformas a policy option. 181. Recently, a model of "community-based land reform" has been pilotedthat utilizes the land market as the mechanism of transfer of land to the poor. It is a "willing seller - willing buyer" model. Subsidized funding is made availableby the Government to poor communities to purchase land for their members. This is arguably less costly in the long run than compulsory acquisition when costs of conflict, delay and legal challenges are factored in. The model is now movingout ofthe piloting stage, and inAfrica it is beingused in SouthAfrica andMalawig2 182. There are other approaches that might deserve consideration in the Liberian context. There are areas in Liberia, some of them formerly large private holdings along the coast and rivers, where land has been abandoned or the owners have fled and there are now illegal occupants farmingthe land, either localpeople or persons displacedby the war. Insuch cases, the Government may want to consider options that would allow those cultivators to remain on the landinthe interest of gettingproductiongoingagain. 183. One option would be a shortened period of prescription ("adverse posse~sion~~),~~ a common law rule in which open occupation for a specified period without acknowledgingthe right of the owner gives the occupant title to the land. Unruh (2007~)notes that there is considerable uncertainty concerning the application of the twenty-year period of adverse possession, because it is not clear whether the fourteen years of civil was can be counted toward that period. 56 184. Another would be creation o f a right o f pre-emption, through a law that gives such occupants the right to purchase the land they are using from the owner, at a regulated priceUg4Of course in the case o f truly abandoned farms, which revert to Government, Government could consider taking them over and redistributingthem to occupants and other poor families. 185. Land reform is not to be undertaken lightly, and the need and potential benefits must first be clearly established. Even where injustices have been done, it is often not realistic to try to remedy these too far back into the past. South Africa found that it needed to limit claims to restitution o f land to lands from which Africans were displaced after 1939. The history o f land in many African countries is a succession o f displacements. It will not be feasible to remedy all old injustices, and it is important that efforts to remedy past injustices do not distract policy-makers from the need to avoid future injustices. A fair reconciliation o f the extensive claims o f the state to public land with local communities' sense o f right to that land is the key to the avoidance o f such future injustices. 6.4 RestoringLandTenure Security: A PriorityMatrix The matrix which follows is far from exhaustive, but indicates some priority areas for action: MATRIXES OF SELECTEDREFORMNEEDS,ACTIONSAND LEADINSTITUTIONS MATRIX INDE ATING RAPIDREMEDIATI INMEASURES PRIORITY CONCERN INTERIM MEASURE LEAD INSTITUTION ContinuedDeed registration in A 6 month moratorium on ~~ Ministryo fLands, Mines and this confused environment will issuingnew deeds while Energy, GRC lead to higher levels o f land interim and transparent fraud and confusion. guidelines and a crash-training course o f staff is put in place. This will help avoid fraud and to ensure consistent application o f the guidelines across counties Land Grabbing in Customary A moratorium on sale of large President, Ministryo f Lands, Areas continues without clear tracts o f land in customary Mines and Energy, GRC ruleof law areas is put in place till a credible arrangement with sound land allocation and pricing criteria 57 MATRIX INDICATINGSHORT TO MEDIUMTERMMEASURES IMMEDIATE NEEDS ACTIONS LEADINSTITUTIONS An institutionalbasisand Creationby law of a Land Governance Commission, mandate for a comprehensive, Commission, mandatedto workingwith the Presidency independentreviewof land review policy and law for the andthe Legislature. law andpolicy, includingland landsector in Liberiaandto institutions and administration. proposeaNationalLand Policyand a consolidated LandLaw. Reviewof public landpolicy Reviewof legal status of GovernanceCommission andthe creation of apolicy- public lands; inventoryof Land Commission, working drivenprogram and legal public lands; development of with the Presidency, Ministry framework for use and new policy and legal of InternalAffairs, and allocationofpublic lands. framework for management Ministry of Lands, Minesand and allocation of public lands; Energy. decentralizationof landgrant and allocationto localbodies responsibleto local elected institutions. Rescueandconservation of Clarificationofresponsibility GovernanceCommission, with deeds, deedregistersandother of government agenciesfor support of Presidency, recordsrelatedto rights in conservation, consolidationof workingwith NationalCenter land. those records ina single for Documentationand secure and safe facility; Archives. preservation of fragile documents, anddigitalization of records in a format compatiblewith uses in land repistrationsvstems. Rehabilitationof Deeds Systematic assessmentof Ministry of Lands, Minesand RegistrationSystem and needs, development of a Energy piloting and expansion of strategy and prioritiesfor LandRegistrationSystem. reconstructionof facilities, retrainingof staff, and equipment re-supply. Review of the law of real Consultancy for legal experts Governance property law to produce comprehensive and CommissionLand critical review of real property Commission law, includingthe legal status of customary law, with recommendations for reform. Studies of customary land Development ofterms of Governance tenure and institutions, andthe reference for rapidappraisal CommissionLand interactionsbetweenthese and studies andcontracts for such Commission statutorylandlaw. researchwith research institutions. 58 Development of a law on Process which recognizes SustainableDevelopment community forestry importance of both forestry Institute, Forestry and other land uses for rural Development Authority, people, and addresses the Ministryof Lands, Energy and potential conflict between Mines. state claims to natural forest ownership and local communities' sense of ownershiD of such resources. More effective land dispute Systematic assessment ofthe Governance resolution causes and extent of land CommissionLand disputes and potential Commission, Ministryof approachesto facilitating their Justice resolution, resulting in a strategy which both strengthens judicial dispute resolution and utilizes ADR and other amroaches. Resourcesto support a Lands Constitutionof a donor Governance Commission and reforms of support group at the initiative CommissiodLand land policy, law and of the GC to provide Commission administration, and coordinated assistance to a implementation of both short- Land Commission and other term reforms and longer-term government agencies with reform initiatives. land sector responsibilities. This will needto include general budgetary support for the operation of the Commission. There will also be needs for rehabilitationof the Deed Registry System in the longer 59 Chapter Seven Opportunities for DevelopmentPartners 7, ImmediateAreas for FinancialIntervention 186. The current land tenure situation in Liberia offers development partners two critical opportunities to make contributions to sound policy development and implementation. First, there is the prospectofthe Lands Commission.Inthis case, the government is already firmly and publicly committedto doing so. Such a commission is the best hope by far for the fundamental policy and legal changes that are needed in Liberia. Needed preparatory work could be done through GRC, which has been asked to take the lead in setting up the Commission. There is an urgent need for donor support for that preparatory activity. Some critical inputs could include supportfor: 0 A Review of LiberianLandLaw: The Land Law of Liberia is largely common law, that is, it consists ofjudicial precedents,embodiedin the thirty-somevolumes of decisions of the Supreme Court of Liberia.This common law has been supplemented over the years by a number of statutes dealing with specific areas, focused on public land sales, land registration and inheritance. There exists no serious comprehensive description of this body of law. Onthe customary law side, there is no country inAfricawhere less has been written about customary law, and since customary law matters only very rarely come before the courts, judicial decisions provide little information. It is essential that such a study be preparedfor the use of the Commission, and this should include data generated by rapidruralappraisal fieldwork on customary law, aimingto establisha basic typology of customary tenure systems. This is a needto establish a baseline for legalreformand to highlightkey areas of uncertainty and potentialfor reforms.There are local lawyers who specialize in land law who are quite capable of carrying out this work, possibly in conjunctionwith researchersat the UniversityofLiberia. 0 A Stratem for Dealingwith Endemic Land Disputes: There is a real sense of urgency about dealingwith the endemic land disputes, includingwhat is frequentlydescribedas a "backlog" of land cases in the courts. These have a broad range of causes, but the most important is the occupation of lands belongingto those who fled during the conflict, complicated by the destruction of many records of land rights.The courts are in disarray. There is said to be a substantialbacklog of disputes but there is also a criticalquestion of how many of these are still "live" disputes or have been overtaken by events such as settlements not recorded with the courts or simple abandonment of claims. There is discussion of creationof special landcourt or courts. . There is a needfor systematic study ofthese issues, in bothsectors, and developmentof a strategy for dealing with such disputes. An inventory of the backlogand analysis of the reasons behindit would be helpfulin devisinga strategy for addressing it. There appears to be an opportunity for the Bank and/or other donors to assist by fundingan assessment and strategy development exercise focused on land dispute resolution.Itwould be best to do this throughthe GRC, which would of course need to work closely with the Ministry of Justice. 60 0 Reconstitutionof the Deeds Registry: This is a priority for two reasons, in spite of the inadequacy of this older system. First, the Deed Registration System will continue to operate for at least fifteen years over most privately owned land, pending the systematic registration of those holdings to bring them within the Title Registration System. The Deeds Registration must be able to function effectively. Second, the ability to access deeds to landandregistry records for them is critical to successful systematic registration. They are the primary source of proofof existing landrights.The registriesare the way in deeds can be cross-checkedto detect forgeddeeds, which are rampant. But the Deeds RegistrationSystem is in chaos, as described earlier in this paper. Records of land rights are scattered and poorly stored, rapidly deteriorating in a number of locations and institutions around Monrovia: the Ministry of Lands, Mines and Energy; the Executive Mansion, the National Center for Documentationand Archives (NCDA), andthe ForeignMinistry. An adequateapproachto reconstitutinga viable DeedsRegistry would require consolidating the registers in a single location. The legal mandate for keepingsuchrecords clearly belongs to the NCDA, but NCDA lacks the capacity to carry the task out on its own, and especially the power to compel the cooperation of the other agencies involved. It will be necessary to digitalizethese records, work that will need to be done with great care, given the fragile and deteriorated state of many of the records. The digitalized registrationswould needto be organized for computerized reference, in a data base to which subsequent deeds could be added. The Bank has substantial experience with the digitalization and computerization of systems of land registration. The first step would be development of a strategy and proposal for funding. It would be appropriate for GRC to take the leadon this giventhe number of institutionswith custody of these records. 0 Land Tenure Consultant(s): The Lands Commissionwill need to be able to access land tenure expertise, both local and international, rapidly and flexibly. While certain specific needshave beenidentifiedhere, others will arise as the Commissionbegins its work. 7.2 Investmentin Land Administration-Land Titling and Registration 187. The second important opportunity lies in the land administration area. Liberia has an excellentTitle RegistrationLaw, enacted in 1974 andpilotedonly briefly before Liberia fell into an extended periodof violence and confusion.The system was never really established institutionally. The equipment and much of the investment in training by several donors has been lost, as well as many of the records of the pilot work. Few titles were in the end issued. Still, the prospects for resuscitatingthe system are excellent, and it is a priority for the Ministry of Lands, Mines and Energy. 7.3 Investmentin CapacityBuildingfor Land Institutions 188. Because of capacity problems in the Ministry, there is a need to focus initially on rebuilding capacity, with further pilots deferred for a time. On the positive side, there is a substantial institutional memory in the Ministry of Lands, Mines and Energy regardinghow a Title Registration System is implemented through systematic land registration, including materials such as the original adjudicationhandbook, andthe Ministry has expresseda desireto revive this system. Unfortunately,the Department of Lands and Surveys is not in a positionto carry out a pilot. It does not have the equipment required, and not a single vehicle for the entire department. There are only three surveyors still with the Ministry who were trained to the skill level needed for such work, though there are others in other jobs in other institutions. These individuals are an important 61 resource.With some retrainingby a consultant, they couldbecometrainersfor a larger cadre. There is a needfor up-front investment in the equipment uponwhich suchtrainingwould be carriedout. 189. The Ministry could easily absorb funds for capacity-building, perhaps including a) development by a consultant working with the Ministry of a strategy for capacity building, to lead to a pilot, b) training for a cadre of trainers, and c) equipment purchases related to training, includingone or more vehicles. An input by an internationalconsultant would be needed to assist the Ministry in thinking through the most effective use of these funds, and in training. Careful review of the experience of the earlier aborted pilots would be a critical element in developinga strategy for a new pilot. This would put the Ministry in the position to make a proposal for a substantiallandadministrationprojectto the Bank andother donors. 190. The current situation, while certainly challenging, posestwo major opportunitiesfor a potentialprogramof assistanceto the Governmentof Liberiaby the World Bank 0 First, there is a declared intention on the part of the President to create an autonomous Land Commission to review land policy and law. The World Bank and other donors often labor long and hard (and not necessarily successfully) to convince governments of the need to establish such a Commission.A law will be needed to create the Commission. The Governance Commissionis mandated to develop the law to establish the Commission, and early drafts have been prepared. 0 Second, Liberia has a generally acceptable title registrationlaw with provisions for systematic titling and registration. The enactment of such a law is often an objective of donor dialogue with governments. Here it is already in place, and there is a valuable body of experience with implementationfrom earlier piloting, just before Liberia fell into conflict. At the same time, the deed registration system must be resuscitated. 7.4 Conclusion 191. The restorationof security of tenure andthe rule of law concerningland is a precondition for continued peace and the hope of prosperity in Liberia. The challenges are great, but so are the opportunities. It is to be hoped that Liberians will seize those opportunities and that the donor community will providethe substantial support needed for them to succeed inthat task. This report will hopefully help the Bank's staff and managementunderstandbetter the needs and opportunities presented today in Liberia's land sector, but also, in the longer term, be useful grist for the mill of the GRC and, when it is established, the LandCommission. 7.5 Next Steps 192. The President of Liberia met with the team, representedby Emmanuel Fiadzo and John Bruce, as well as members of the GC, to discuss her interest in the land tenure agenda for Liberia. She has also expressedthis interest directlyto the Country Director for Ghana, particularlythe need to press forward with this study so that the recommendations can be realized. Given this basis, it presents a real basis for the Bank to engage in further dialogue regardingreal financial support to Liberiato enable landtenure reform. 62 References Ad Hoc Presidential Commission on the Land/Property Dispute inNimba County. "A Preliminary Report of the Ad Hoc Presidential Commission onthe Landproperty Dispute inNimba County", October 2006. Allot, Anthony N. "Family Property in West Africa: Its Juristic Basis, Control and Enjoyment" in J.N.D. Anderson (ed.) Family Law inAsia and Africa (London: Butterworths, 1968: 121-142. Allot, Anthony N., and S.R. Simpson, "Towards a Definition of Absolute Ownership, Iand II", Journal of African Law 5 (1961): 99-102 and 145-150. Allot, Anthony N."A Report onthe Feasibility of Researchinto Liberian Customary Law", LiberianLaw Journal 3(2) (December 1967) 83 Bensti-Enchill,Kwamena, and GerADR H.Zarr, "The Assurance of Land Titles and Transactions inLiberia", LiberianLaw Journal 2 (1966): 94-121. Bromley, D. 1989. Property Relations and Economic Development: The Other Land Reform. World Development (U.K) 17:867-77. Bruce, John W., "Reform of Land Law inthe Context of World Bank Lending", at pp. 11-65 of John W. Bruce and others (eds.) Land Law Reform: Achieving Development Policy Objectives. Washington DC: Legal Vice-presidency, World Bank, 2006. Bruce, John W., and Shem E.Migot-Adholla (eds), Searchingfor Land Tenure Security in Africa (Dubuque, 1A: KendalVHunt 1994). Bruce, John W. et al. 2007. Land and BusinessFormalizationfor the Legal Empowerment of the Poor. Strategic Overview Paper. (Burlington VT: ARD for USAID). Chanock, Martin. "Paradigms, policies and property: a review of the customary law of land tenure" inK.Mann and R.Roberts (eds.), Law inColonial Africa (London: Heinemann, 1991) Coldham, Simon, "The Effect of Registration of Title upon Customary Land Rights inKenya, Journal ofAfrican Law 22(2): 91 (1978), De Soto, Hernando. The Mystery of Capital: Why Capitalism Triumphs inthe West and Fails Everywhere Else (Basic Books 2002). Deininger, Klaus. 2003. Land Policies for Growth and Poverty Reduction. World Bank Policy Research Report (World Bank & Oxford University Press). Deininger, Klaus. 1999. Making Negotiuted LundReform Work: Initial Experiencefiom Bruzil, Colombia, and SouthAfiica, World Bank Policy ResearchWorking Paper No. 2040 (World Bank 1999). Englebert, Pierre. 2006, "Patterns and Theories of Traditional Resurgence inTropical Africa", Mondes en De`veloppement, 2002,30( 118):5 1-64. 63 Fitzpatrick, Daniel. 2005. "`Best Practice' Options for the Legal Recognitionof Customary Tenure", Developmentand Change36(4): 449-475. Governance Reform Commission, 2007. "The Way Forward: Land and Property Right Issues inthe Republic of Liberia". Drap, March 15,2007 (Monrovia: Governance Reform Commission). Government o f Liberia. 2008. Poverty Reduction Strategy (Monrovia: Government of Liberia). Hanna, S and M.Munasinghe (eds) 1995.Property rights in a Social and Ecological Context: Case Studies and DesignApplications. Washington, DC. Beijer InternationalInstitute of Ecological Economics and The World Bank. Huberich, C.H. 1947. ThePolitical andLegislative History of Liberia. Vol.II.Constitution and Laws of the Republic 1847-1944 (New York: Central Book Company). InternationalCrisis Group, Liberia: Resurrectingthe Justice System, Africa Report No. 107, 6 April 2006. InternationalInstitutefor Environmentand Development. 2006. "Innovation in Securing Land RightsinAfrica: Lessons from Experience." An IIEDBriefingPaper (London: IIED). Johnson, Koboi. 2006. "Property Law of Liberia, Specifically an Act to Amend the Property Law to Provide for a New System for Registration of Land and for Dealing in Land So Registered", paper presentedto a Real Estate Registration and Real Property Tax Practicum, Workshop Organized by USAIDLTIand the Ministryof Land, Mines andEnergy, October 20-21,2006 Johnson, Koboi. 2007. Inventory of Ministries,Agencies and Other Institutionswith Statutory Responsibilities for Managing and AdministeringLand and Real Property in Liberia. (Monrovia: Governance Commission) Knox, Anna. 1996. "Liberia Country Profile", at pp. 83-87 o f John W. Bruce et al. (eds.), African Land Tenure Country Profiles (Madison, WI. Land Tenure Center, University of Wisconsin- Madison, 1996). LTI. 2006. "An Investigationofthe Real Estate Registration and Property Tax System in Liberia for USAID/OTI and the Ministryof Lands, Minesand Energy" (Monrovia, October 2006). Lavigne Delville, Philippe. 2004. Registeringand Administering Customary Land Rights: Current Innovationsand Questions in French-Speaking West Africa. Communicationto the Expert Meeting Group on Secure Land Tenure: New Legal Frameworks and Tools, organized by FIGCommission 7, Nairobi, 10-12November 2004. Levitt, Jeremy I.2005. The Evolution of Deadly Conflict in Liberia: From `Paternalitarianism' to State Collapse (Durham, NC: CarolinaAcademic Press). McCarthy, Nancy. 2007. Customary Land Use in Liberia: A Review of Supreme Court Decisions. (Monrovia: IFPRI and George MasonUniversity School of Law, 2007). 64 Ministryof Land, Mines andEnergy.2006. "One HundredandFifty (150) Day Action Plan: Enhancing Government's Effectiveness in Managingthe Land, Mineral and Energy Sectors" (Monrovia: MLME,March 1,2006). Ministry of Land, Mines and Energy. 2006. "Memorandum of Understanding for the Conceptual Understanding of the Challenges to Land Title and Registration and Corresponding Resolutions to Said Challenges" (Monrovia, MLME, October 21, 2006.) Mutafa, Zaki. 1971.The Common Law of the Sudan; An Account of the `Justice, Equity and Good Conscience Provision. (Oxford: Clarendon Press, 1971). Nkrumah, N, Geisler, C and Lassie, J. 2003. Rural Sociological Society Annual Meeting. Land Tenure Security and Investment Decisions in EasternGhana. Does Social Capitalmatter? North, D. 1981. Structure and Change in Economic History. New York: W.W. Norton and Company. Norwegian Relief CouncilLiberia. 2007. NRC Liberia. (Monrovia, NRC). Opoku-Akyeampong, Daniel Kofi. Casebook: The Acquisition, Sale and Rentalof Property in Ghana. (Accra: Safeway Press, 1999). Place, F. 1995.The Role of Landand Tree Tenure on the Adoption of Agroforestry Technologies in Zambia, Burundi, Uganda and Malawi. A Summary and Synthesis. Land Tenure Center Publication. Platteau, J.-P. 2000. "Does Africa Need Land Reform?" in Evolving Land Rights, Policy and Tenure in Africa (C. Toulmin & .I.Quan, eds., IIED & Natural Resources Institute, 2000). Quan, Julian. 2000. "Land Boards as a Mechanism for the Management of Land Rights in Sourthern Africa" in C. Toulmin and J. Quan (eds.) Evolving Land Rights: Policy and Tenurein Africa, pp. 197-205. London: DFID/IIED/NRI. Shipton, Parker. 1988. "The Kenyan Land Tenure Reform: Misunderstandingsinthe Public Creation of Private Property", in Land and Society in Contemporary Africa (R. E.Downs & S. P. Reyna, eds., U.New Hampshire Press, 1988). Thiesenhusen, William C. (ed.) 1989.Searchingfor Agrarian Reform in Latin America. Boston: Unwin Hyman. Unruh,Jon. 2007a. Comprehensive Assessment ofthe Agricultural Sector (Caas-Lib), LandTenure Report. (Monrovia, World Bank, n.d., c. 2007) Unruh,Jon. 2007b. Postwar LandTenure inLiberia: The Intersection ofCustomary and Statutory Land Laws. (Monrovia. World Bank, n.d., c. 2007). Unruh, Jon. 2007c. Postwar Land Tenure inLiberia: LessonsLearnedfrom Other Post- Conflict Countries (Monrovia, World Bank, n.d., c. 2007). Wiley, Liz Alden. 2003. A Review of Decentralizationof Land Administration and Management in Africa. (London: IIED). 65 Wiley, Liz Alden. 2007. An InterimComment on Customary LandTenure in Post-ConflictLiberia (Monrovia, SustainableDevelopment Institute, 6 April 2007). Wiley, LizAlden. 2007. "So Who Owns the Forest?" an Investigation into Forest Ownership and Cusotmaiy Land Rights in Liberia (Monrovia: Sustainable Development Instituteand FERN). Woods, John T., ManagingDirectorofthe Forestry Development Authority, Memorandum to Silas Siakor, ExecutiveDirector, SustainableDevelopment Institute,"Forest Data", April 16, 2007. Woodman, Gordon. 1996.CustomaryLandLaw inthe GhanaianCourts (Accra: Ghana UniversitiesPress, 1996) 66 Annex A. Personsand InstitutionsConsulted Philip A.Z. Banks, Legal and Judicial Reform Consultant, Governance Reform Commission Othello Brandy, Commissioner for Millsburg (former Minister of Agriculture; CAAS-LIB manager. Alfred Brownell, GreenAdvocates Beverlee Bruce, Researcher, Yale University, co-author of Community Cohesion in Liberia (2004). Jeanette Carter, Co-Director, Institutefor Research, University of Liberia, and Governance Reform Commission Clifford M.Daitouah, Registrars of Deeds, Montserrado County. Emmanuel Fiadzo, Country Office, World Bank. Anne Golla, InternationalCenter for Researchon Women. Taiwan Gongoloe, Solicitor-General, Ministry of Justice. Carsten Hansen, Country Director, NorwegianRefugee Council Liberia. Susan Heintz, Project Manager ILCA, Norwegian Refugee Council, Liberia. SandraHoward, Commissioner, Governance Reform Commission. Justice Kabina Ja'neh, Deputy Chief Justice, Judiciary Abraham B.S. Jones, Sr., Land Commissioner for Bomi County. Ambulai Johnson, Minister of InternalAffairs. Julu Johnson, Assistant Minister,Department of Lands, Surveys & Cartography. Koboi Johnson, teaching Land Law at the University of Liberia School of Law, Century Law Offices. Ernest C.B. Jones, DeputyMinisterfor Operations, Ministry of Lands, Mines and Energy. Arah Kananu (sp?), General Coordinator, Lands and Survey, Ministry of Lands, Energy and Mines. DavidKialain, ExecutiveDirector, Governance Reform Commission Krobo Kollie, Deputy Minsterfor Legal Affairs, Ministryo f ForeignAffairs. Nancy McCarthy, IFPFU. RuthMeinzen-Dick, IFPRI. Jonathan Mongar, Chief, Adjudication Section, Ministryof Lands, Mines and Energy. 67 SandraT. Pauling. SuuervisorvPromam Officer, USAIDLiberia. Amos Sawyer, Chair, NationalGovernanceCommission. Eugene H.Shannon(PhD), Ministerof Lands, Mines and Engery. Abraham Stubblefield,LegalAdvisor, Ministry of Lands, Mines and Energy. ChrisToe, Minister ofAgriculture. G. HarrisonTuolee, DeputyDirectorGeneral, Center for NationalDocuments& Records and NationalArchives (CNDRA). Jon D.Unruh,Associate Professor, Department of Geography,McGillUniversity, 805 Sherbrooke St W., Montreal, Quebec, Canada. Anthony Valcke, Country Director,American BarAssociation(ABA-Africa). DanWhyner, USAID. Liz ADRen Wiley, landtenure consultant, providedto SustainableDevelopment Institute(Silas Siakor) by DFID. E. EkemaA. Witherspoon, Assistant ManagingDirector, Forestry Development Authority 68 Annex B. Supdementsto the Liberian LandLaw The Law on Succession 1. The Law on Decedents' Estates is Title 8 o f the Liberian Code Revised. It allows the making o f a will by all persons age 18 or older, and does not make any distinction between land held under common law or customary law title. Section 3.2 on intestacy provides for a spouse (in the common case where there is a spouse and lineal descendents) to receive $5,000 and % o f the residue o f the estate for life, the other half going to the lineal descendents. Section 3.5 makes in clear that illegitimate as well as legitimate children are heirs. Complex probate provisions follow that would render this law difficult to apply in the circumstances o f Liberians living under custom, and in fact it does not appear to have been often applied in such circumstances. Instead, the Hinterlands Regulations contain provisions that appear to have been applied, though these have been recently amended. 2. In 2003 Title 8 was supplemented by an Act to Govern the Devolution o f Estates and Establish Rights o f Inheritance for Spouses o f Both Statutory and Customary Marriages, approved October 2003.85 The 2003 Law addresses the retrograde provisions on women's customary marriages, and provides that ``... all ri hts, duties and liabilities o f statutory wives inheritance o f land under the Hinterland Regulations.86. Section 2.1 confirms the legality oftall shall likewise be accorded all customary wives..." Ii 'Section 3.2 specifies that this includes the common law right o f dower, entitling a widow or widows to a third o f their late husband's property. Under Section 3.3, the widow is entitled to stay "on the premises" to administer the estate, or may take another husband o f her choice, in which case she must vacate the premises. The new marriage "automatically reverses the said rights and same property return to the heirs or children o f the late husband." Section 2.6 renders property acquired before marriage by customary women exclusively their own even in marriage, but Section 2.3 says that one-third of a husband's property vests in a wife upon marriage. There is a lack o f balance here that may deserve re-examination. Perhaps most important, however, the law for the first time specifically allows men or women under customary law to make a Last Will and Testament, describing how their property is to be distributed after death. None o f these provisions distinguish between personal and real property, and so include real property. 2.2.4. The National Forestry Reform Law o f 2006 3. This law was approved October 4, 2006, and is ineffect a new Forestry Law, though it is said to amend the National Forestry Law o f 2000. It provides for a variety o f forest regimes, including Protected Areas and National Forests, and for various means o f accessing and exploiting forest resources, including concessions. The significance o f this law for land will only be seen when the areas involved are noted. A 2004 presentation on the "Current State o f the Forest Cover in Liberia" (Monrovia, World Bank, 2004) indicates a predominant rural agricultural domain o f only 4.6% o f the surface area o f the country, which agricultural area with a forest presence accounts for 31.7%, mixed agricultural and forest area for 9.9%, opened dense forest for 10.6% and closed dense forest 25.3%. Due to the urgency o f ending the UN ban on exportation o ftimber from Liberia, unusually substantial data is available for the forest sector.@ 4. The law's provisions on ownership o f forest resources have major implications for the rights o f landholders. Section 2.1 on Ownership o f Forest Resources provides that "All Forest Resources in Liberia... are held in trust by the Republic for the benefit o f the People." "Forest that exists in the forest environment.. ." "Forest land" is defined as "a tract o f land, including its resources" are very broadly defined in Section 1.3 to include anything o f "potential use to humans 69 flora and fauna, capable of producingForest resources, not includingland in urban areas, land in permanent settlements, and land that has been in long-term use for non-shifting cultivation of crops or livestock in a manner that precluded producing Forest Resources." These are extraordinarilybroaddefinitions. 5. Exceptionsto state ownership of forest resourcesare providedfor in Section2.1. The first is for "forest resources that have been developed on private or deeded land through artificial regeneration". On private or deeded land, plantedforests can thus be privateproperty but natural forest cannot, and its use and exploitationis regulated. The landowner or occupant has no right to use or exploit the forest resources on his land (Section 11,2), though he can apply for a "private use permit" under Section 5.6. He cannot prevent Government giving the right to cut or harvest the forest on his land to someone else, but he is entitled to "just, prompt, and adequate compensation for any diminution in the value of his property occasioned by the use" (S. 11-3). The expropriationof privately owned natural forests by the Act, which does not appear to have any obvious basis inthe Con~titution,'~may well be challenged inthe courts.goThe compensation requirement could help save the provision, but this might depend on whether "diminution in value" is interpretedto include the value of the timber itself, rather thanjust loss of value of use ofthe land. Inany case, a serious constitutionalissue appearsto be raised. 6. The other exception to the taking of natural forests is for communal forests. A communal forest is defined by Section 1.3 as "an area set aside by statute or regulationfor the sustainable use of Forest Products by local communities and tribes on a non-commercial basis". Section 9.10(b) (iii)prohibits any person from prospecting, mining, farming, or extractingtimber from a communal forest for commercialuse. Forest use permits under Section 5.5 are intended to allow charcoal production, local use timber harvesting and harvesting of forest products by forest- dependent communities (subsection (f)), but it does not appear that this applies to Communal Forests. Section lO.l(b)(l) calls for the Forest Authority to issue regulations to "specify rights and responsibilitiesof communities with respect to ownership and uses of Forest Resources", but again the relationshipto Communal Forestsis not clear. 7. While the question of rightsof owners of landwith natural forest are important, it may be dwarfed by the issue of natural forest on land in Tribal Reserves or, where they have been established, Communal Holdings.The key question here from a property standpoint would appear to be whether communitieswhose land is governed by customary law and who largely practice shifting cultivation still own and can exploit for commercial purposes the natural forest on their land. Do they even owntheir land, giventhe expansivenessofthese definitions?Ownershipcould be preserved if these areas are designated Communal Forests under the law, but this then bars commercialexploitation. But ownership of land, without ownership of the resources that occupy it, means little. 8. The answer under existing law is not clear, but it is of great moment to those rural communities. How it is resolved will cast a clear light upon the intentions of the government toward the historically disadvantaged peoples of the Hinterland. The mandated regulation now being drafted to deal with ownership and use of forest resources by communities will hopefully reaffirm the rights of the communities over the forests they have use and their right to derive not only subsistence but commercial incomes from those forests." The most secure basis for this would be confirmation of the communities' property rights in their lands and forests. The provisions of the Forestry Law regardingownership of forest resources, and the breadth of the definition ofthose resources, should be reconsidered. Annex C. DetailedDiscussionof the Land Tenure Problem in Liberia and how other countries have addressed these issues 70 Lessonslearned from other countriesas applied to Liberia 1. This section looks at the current land tenure problems in Liberia with a view to compare these to how other post conflict countries have handled similar problems. The Liberian problems noted here are drawn from the GRC and World Bank concept notes, and the author's own work in Liberia. The problems are grouped here according to type, and then the experience o f other countries is discussed as to the type o f problem. Six categories o f problems are elaborated upon. Within each category, a brief description o f the relevancy o f the topic to postwar land tenure is followed by a description o f the Liberian problems. This in turn is followed by a discussion o f how other countries have approached these problems. Disputes 2. The role that land dispute resolution plays in postwar reconciliation and economic recovery is significantly important. That such resolution occurs in a timely fashion is critical to the secure re-engagement o f agricultural populations in familiar land uses, food security, and agricultural contributions to economic recovery and associated trade opportunities. That it happens in ways that are seen as legitimate and equitable by most claimants is important because disenfranchisement o f local populations from land and water rights is a major factor contributing to instability and resource degradation (Unruh2002; 2003). 3. There are different types o f disputes in Liberia, but because operationally, legally, and administratively, the dualistic land tenure system in the country is the overriding context, disputes generally fall into one o f three types: 1) disputes between parties who both operate within the formal, statutory tenure system; 2) disputes between parties who both belong to the customary land tenure system, which exists in several variations; and 3) disputes between parties where one o f them operates within the formal tenure system and the other belongs to the customary system. There is some overlap between these three types, as when claimants within the customary system seek to have the dispute resolved in the formal system (particularly boundary disputes between communities, between chiefdoms, etc.). As well there are aspects o f each tenure system that is utilized by the other. As a result informal documents o f various kinds(not deeds or titles) can find their way into the customary system as forms o f proof o f claim. At the same time informal, customary forms o f evidence (the existence o f economic trees, tombs, testimony) can be introduced into formal dispute resolution proceedings where titles, deeds, or other formal evidence is problematic. As well the distinction between customary and formal can be used as a form o f appeals step, whereby if resolution is not satisfactory within the customary system using customary dispute resolution approaches, the same dispute and claimant can move the dispute to the formal system. Overall however most postwar countries experience an aggravation o f the formal - informal dualism in land tenure after the conclusion o f the war, and so attending to the large disputing problem is often approached with this dualism in mind. 71 4. InLiberia disputeswithin the formaltenure systems involveissueswhere: Documents provingclaim are lacking, altered, fraudulentor mistaken, providingfor a boundary dispute or ownership disputewith another party, Land is sold and resoldwith no or little reference to original owners or registration procedures, The dockets of the statutory courts are crowded with land disputes that include approximately90% of the civil cases. Cases that should be solely civil are appearing incriminalcourts, Conflict over private land where claims were made when the owners were absent duringthe war, Disputes where documents are in hand but considerable confusion exists-at time purposefully--over which document prevails, Disputes which emerge due to the problematicdeeds system in the country, whereby searches cannot / were not madewhen transactions were made, Problems resulting from the wars include a missingcadastre, laws, regulations, land documents for the state andfor private citizens, missingdeeds, Concessions are which holdoverlappingclaims, Disputes over privately held rubber farms, especially when original owners are absent. Incommunitiesthat were destroyed duringthe conflict, disputes over houseplotsare frequent. 5. Giventhe very high volume of disputeswithin the formal system after the war, as well as confused nature of certain aspects of the tenure situation, other country experiences have found that it is not realistic to pursue an approach in which all cases or even topics that need to be resolved are attended to individually in the courts-in other words, attempting to unravel the history of all transactions in an environment where many documents are missing, or fraudulentor improperly executed. While some cases involving acute (particularly security) problems, and high-profile cases would need particular attentionwith regard to what went on when, where and with whom, in many cases and on many topics this is not likely to be possible, particularly in a timely manner. Rather, categories of problems, or a typology of similar cases can be derived, and then provided with a legal approach to deal with the entire category. This has the advantage of quickly reducing the overload on courts, as well as the time, money and effort needed to go through each and every case. Mozambiqueand East Timor have experienced some success with this approach. 6. While the categorizationof disputes does take time and effort to carefully delineate the categories, once accomplished the approach can save considerable time, money and effort in the resolutionof significantquantitiesof disputes. 7. In Mozambiquesome of the categories that were delineated and decided en masse by a new law, decree, or legaldecision, included: 1. Legitimacy and legality of specific types of claimants. In Mozambique returning Portuguese colonists andtheir descendentsconstituteda large number of claimants in disputes. The Mozambican government determined that claimants and claims made under colonial entitlement, or colonial era law were not valid. The result was to dismiss from court a significant number of cases. 72 2. Disputes o f a type that have come about due to specific circumstances duringthe war. Lands that were abandoned during the war, whose occupants fled due to the war, were not to be involved in disputes due to the absence o f the owners duringthe war, thus defining the nature o f the term `abandoned'. Thus additional cases were dismissed. 3. Disputes that had come about due to specific lands having been allocated to a particular use, group o f people, or individuals as stipulated in the peace accord. Such disputes were turned into compensation cases and not dispute cases. 4. The Mozambican government also created a class o f disputes that came about due to clear `bad faith' transactions. Inthis case the disputes were not to be allowed in court. Because under the previous Mozambican law, bad faith transactions primarily had to do with those able to obtain title taking land and property from those without title, and not between two titleholders, the new law sought to address this through the occupancy and proof articles (articles 12, 15). Technically, the bad faith aspect o f the problem was primarily caused by the title applicant's failure to adequately provide notice to any current occupants that a title applicationwas pending for a specific area. This was a step that was often skipped when applying for title in Mozambique. The new law does not nullify titles issued improperly on land already occupied by someone else. Instead, titles may be reversed by reason o f non-compliance with the plan under which it was granted (MPPB 1997). 8. The Mozambican government also sought to create categories o f claims, which could be dealt with. In this instance two objectives coincided4ecreasing the volume o f disputes, and making land available for restitution. Mozambique passed a new law after its war, which facilitated these objectives, among others. The new law embraces several approaches to make land available for restitution, depending on the category o f claim. The first approach involves obligatory resubmission o fthe large number o f pending land applications under which conflicting claims had been made in the past. Article 46 o f the current Land Law Regulations, which came into effect on December 8 o f 1998, introduced a 12 month period within which all pending applications and pending land claims had to be renewed, subjecting them to the provisions o f the new land law and regulations. The government also allowed additional periods of three months in 1999 after a very low rate o f renewal, and then a further period o f four months in 2000. The latter occurred through the delivery o f individual letters to approximately 2500 applicants affected by the requirement, together with announcements on the radio (Norfolk and Liversage 2003). Toward the end o f this period, the government `archived' all those applications that had been pending as of August 8, 1998 and which had not yet been renewed. However, applicants were still permitted to renew their applications after the cut o f f date, until July 2001. In August 2001, DINAGECA (Direccao Nacional du Terras, the national department responsible for land rights registration and mapping) cancelled the remaining titles and applications (Norfolk and Liversage 2003). For Zambezi Province alone (the primary agricultural province), 1,234 applications were cancelled, representing over three million hectares (Norfolk and Liversage 2003). This provided significant restitution o f land to African communities who had lost land prior to, during, and after the war, often under questionable circumstances (Tanner 2002). 9. Liberia hasjust accomplished a form o f this approach in deciding to cancel and review all forestry concessions as a category. Such categories can be as narrow and as numerous as deemed necessary to capture the important differences between sets o f problems, and to deal with certain problems in a short time frame. While not all tenure problems can be dealt with in this manner, it does, again, have the effect o f reducing the volume o f cases. 73 10. A separate approach to reducingthe burden on the court system due to the large volume of land disputes is to create a separate, if temporary 'land and property tribunal' that hears only land and propertycases. This would entail with landtribunals in the rural districts as well as the capital. This can be accomplished in a couple of ways, given the problem of a lack of trained personnel. InEast Timor the rural udut customary tenure system was empowered to handle land disputes, removingsome of the burdenoff of the courts in rural and some peri-urbanareas. Such empowermentbringsinto the effort local elders who are familiar with customary forms of dispute resolution and land administration(in other words, trained in customary tenure). Such capacity then becomes a free good to the state. This approach serves when customary claimants wish to move their case intothe formal systembecausethe customary system is lackingin someway, and necessitatesthat the formal system recognize and respect decisions made by the udut system. 11. The difficult situation in Liberia whereby documentary evidence is made very problematicdue to missingand destroyed, fraudulent, and partialdocumentation, has the effect of reducing the value of such documents in an evidentiary context. The result is to increase the relative value of other, non-documentary evidence in disputes. Such a scenario is common after a war. Such was the fate of many land documents in Ethiopiawhen the Dergmilitary regimetook power in the mid 1970s, and again a decade and a half later when the Tigrayan-Eritreanforces took over. In another example the decisionby the internationalcommunity to allow the Bosnian Serbs to keep lands seized from Bosnia and Herzegovinameant that virtually no evidence other than ethnicity was legitimate subsequent to the conflict. Property holders who were 'cleansed' from certain areas were no longer able to use what were once legitimatetitles or other documents as evidence for possession of property (Holbrooke 1998). In East Timor Prior to the violent departure ofthe Indonesiansin 1999and the accompanying socialupheaval, the only formal state evidence of ownership was an Indonesianland title. The conflict resulted in the destruction of most documents relating to land and property, such that use of titles and other documents as evidence of ownership and access became extremely difficult. Moreover most of the rural land held by customary communities was never titled. Research in East Timor revealed that other evidence (other than titles and accompanying documents) increased in importance in terms of makinga claim. What the East Timorese found, was that this other set of evidence was held by more people and a wider variety of people than titles ever were-a potential equity issue. The result was that after the war, bothrural state officials, and customary smallholdersfound general agreement as to what should constitute valid evidence for a claim in a dispute. Thus the East Timorese landpolicy reform effort was able to use this set of circumstances (decrease in value of documentary evidence, increase in value of other, informal evidence, and agreement between the state and customary smallholders as to what constituted legitimate evidence) to work toward greater harmonizationbetween the formal and customary land tenure systems, This presented an opportunity for the East Timorese land law reform to utilize such compatibility in lawmaking (Unruh 2006). 12. While Liberia has not experienced the wholesale destruction of land and property documentation as East Timor has, the widespread destruction, together with fraudulent cases, confusion over what land has been transferredto whom via the deed system, results in a similar reduction in the value of deeds as evidence, and the relative increase in the value of other, including customary and informal, evidence. For Liberia this includes evidence not usually allowable into landand property cases-testimonial evidence. 13. Angola however provides a different scenario. The lack of documentationafter the war allowed for utilization and promotion of certain, specific pieces of historical evidence that was able to gain sufficient political support for a small elite sector of the population. With a similar 74 lack of commonly held documentation attesting to lands after the war, a colonial era map has emerged as a particularly powerful piece of evidence attesting to the colonial existence of large landholdings in the country's central highlands-the agricultural breadbasket of the country. Arguments are then made by those who supposedly were provided with the concessions for these lands at independence and then transferred them (or not) to others. Because large land interests stand to benefit from this piece of evidence, it has considerable backing, and has been used numerous times inclaims. 14. Land disputes between the formal and customary svstems In Liberia these include problems between concessions and other commercial holdings on one hand, and the customary sector on the other, with the latter often disputing the process under which concessions were made, and land was (and is) transferred. This takes another form as squatters in urban and peri-urban areas occupy land otherwise owned formally. 15. Angola has similar problems after its long war, with these set to become worse. In Angola there is an explicit prohibition in the new land law to addressing issues of restitution for large-scale(commercial) and small-scale (peasant, including ex-combatant) dislocatees during the war. There is significant retention by the new formal law of the ability to nationalize, confiscate, expropriate, and intervene in lands heldcustomarily by rural communities attempting recovery of agricultural lands after the war in order to achieve near term food security (GOA2004). Thus post-war Angola presents a case whereby greater divergence between customary and formal tenure systems after the war is likely, and hence is more a case ofwhat to avoid. 16. Mozambique on the other hand has had significant success in dealing with the disputes between formal and customary tenure systems, and constitutes one o f the better examples. With the requirement (in the postwar 1997 law) that all commercial rights to lands were to be re- applied for, renewed applications first needed to pass though a consultation phase with local communities or individuals that may also be occupying the land in question. As a result, two options emerged in this process. The first is potential loss of largeholder rightsdue to smallholder occupation of the land in question and the strength of `occupation rights' provided for in the new law. In this case, if new or pre-existing formal rights holders find in their application or reapplication process that the area is occupied and claimed by smallholder communities, then transfer of rights to the smallholder communities can occur (article 13; Tanner 2002). The second option is the more innovative and desired option from the point of view of the law, and is more likely to satisfy the government's desire to attract and retain foreign investment. This is the option that seeks to encourage investors (foreign and national) to negotiate on their own with established local communities by: 1) empowerment of local communities via the rights provided by occupation (new law), and the community participation requirement in determining what areas are really `open' or not; and, 2) enabling a significant role for local communities in terms of participation in natural resource management, conflict resolution, and inthe process of titling and setting the limits of new areas requested by private investors. This negotiation is necessary for those attempting to pursue pre-independence claims and for those who wish to pursue restitution under the current law (Tanner 2002; Hanlon 2002; Norfolk and Liversage 2003). 17. The latter option also encourages negotiation by allowing a formal commercial rights system to co-exist with smallholder community rights of occupation, in what is called the `open border model' (Tanner 2002; Norfolk and Liversage 2003; Hanlon 2002; MPPB 1997). With this option, if an old title or reapplication under the new law finds that smallholder Mozambicans occupy the land in question, then this does not necessarily compel loss of rights on the part of the investor (foreign or national). This is especially important given the notion in Mozambique that there is no land in the country that is unclaimed by a local community in some form (De Wit 75 2002), as in Sierra Leone's chiefdoms. The option includes the possibility of delimiting smallholderlandunder occupationeither beforeor at the same time a set of commercialrights are granted to an investor. This is the case for new applications or re-applicationsfor rights holders under a previous law (Norfolk and Liversage 2003; Tanner 2002). The `open border model' refers to the legal recognition of the boundary around a specific community and the rights of the smallholder community within it, together with the `open' character of the boundary, which encourages investors, particularly foreign investors, to negotiate an arrangement regarding the exact nature of use rights by the investor within such a boundary (Tanner 2002). In other words, althoughthe land within a community boundary (often quite large) is both occupied and farmed by the local community, it could also be exploitedby the investor.Under this approach there is a partial transfer of rights, particularly from largeholders reapplying for rights (who would no longer have exclusive rights), to smallholder occupants with whom a negotiatedarrangement is potentiallyachieved. 18. In this regard there was the expectation that many dispute cases between large and smallholderswould `resolve themselves' (in other words, become `self managed') through either non-reapplication for formal title (lands returned to smallholder communities) or through a negotiated arrangement with reapplication. One important situation that emerges under this arrangement involves largeholders who must re-apply under the new law, now needing to negotiate with smallholder occupants that may not have been present (due to previous colonial, wartime, or government policy dislocation) when the applicationor claim was first lodgedunder previouslaws. However, giventhat such smallholderoccupation, or re-occupationof lands occurs with restitution as its purpose, such a negotiated encounter is what the new law aims at as a meansof achievingbothdispute resolutionand investment goals. The new law inthis sense gives vastly expandedrightsof proofto claim landsto peasants(Hanchinamani2003). 19. Landdisputeswithin the customary system: In Liberia as elsewhere many cases of within-customary system land disputes are resolved by local, customary authoritiesrising to the occasion and facilitating resolutionafter a conflict. Also like elsewherethere are cases, or larger problemsthat revealthat such ability has brokendown. In Liberia appears to be the case as the ethnic dimension has extended from tension between the settlers and indigenousethnic groups to tensions betweenMandingoand Mano/Gio (inNimba) or Loma(inLofa). These latter tensions are the focus as refugees returnto Liberia. InMonroviaand other areas, land disputes focus on land that was `abandoned' as owners fled the country, allowing others to occupy the land. The original owners are now returning to claim their properties.This case however also embodies the issue of returnees and those that stayed seeking to use both customary and formal tenure systems in their pursuit of claims. As well in Liberia boundary disputes between rural communities are being brought to the Ministry of Internal Affairs almost daily. 20. Zimbabwe, earlier in its historyexperiencedconsiderable success in managing customary land disputes after its independencewar. Inthis case `land boards' were institutedthat comprised leaders from different segments of the population, who were responsible for overseeing disputes, allocations, use, etc. Their decisions were then made legal by formal law. The value in this arrangement is that a single land board can includerepresentativesfrom differenttribes and other groups, and so can handle issuesthat are larger that what occur internalto specific groups only. 21. In both Sierra Leone and India, `customary law officers' can offer their official state position in ways that seek to use a hybrid of means (formal, customary, ad hoc) to achieve some form of resolution to customary disputes (Unruh 2006; Bavnick 1998, respectively for the two cases). Such positions offer considerable flexibility in possible resolution outcomes, and can 76 enjoy an advantage by being a `third party' able to negotiate freely. This might be a possible resolution to the Liberian cases where boundary disputes between rural communities are a problem. In such cases formal adjudicationfrequently do not hold, as the `loser' in any decision has the option of not abiding by the decision with the logic that it is a customary problem and formal law should not interfere.Such border cases canbe particularlyproblematic for formal law to attempt to resolve. InEast Timor such border disputes often flared up, and then calmed down. But they became most acute when formal law attempted to resolve them permanently.This was because the ongoing nature of the dispute (sometimes becoming aggravated, at other times becoming a low level issue) had utility to both sides for a variety of political reasons. And so there were reasonsto keepthe dispute alive and insteadof resolvingit, optingto `manage' it. This i s because for the customary communities in East Timor as elsewhere, group-on-group political conflictscantranslate into, or becomemanifest as landdisputes, or havea landdispute dimension through which the larger politicalproblem is dealt with-such as the issue betweenthe returning Mandingos and Mano/Gio/Loma groups in Liberia. In East Timor, involving the state in resolution (with its implications of finality), or threatening to, served to push the groups with boundary problems to resolve or managethem informallybut not permanently (purposefully not permanently) - hence the management of the larger political issue as well. With such management the land boundary part of the problem still existed, but as a low level, neglected (until neededagain) dispute. Confusion and Ambiguity 22. One of the larger problems in Liberia is the massive confusionthat exists on a range of administration,boundary, claim and ownership issues. The link between this kind of confusion and wide-rangingtenure insecurity is explicit (Bruce et a1 1994). Some of the more important issuesregardingthis confusion in landtenure are notedhere. 0 Rightsof access to and useof naturalresources, includingland, minerals, forests, and water, are shrouded in a state of tenure insecurity,vague and ambiguous legislation, conflictingand competingtenure arrangementsand constantand persistent clashesof customary and statutory rights over the management, authority and control of these resources. 0 The legalmechanisms for acquiring land deeds, especially in areas under customary tenure, are a confusedandcontentious issue. 0 The legal distinction between government land, public land, and aborigine or tribal landdeeds lacksclarity. 0 The delineationof administrativeunits in the counties can be described as chaotic. Today there is oftenoverlap andjurisdictional ambiguitybetweenthe state-supported customary units of clan and paramount chieftaincieswith the townships and cities subject to the statutory system. This creates the question, of who is the authority on landmatters? 0 Attempts to survey or re-survey land are increasingly being resisted by local residents, sometimes resultinginviolence. 0 There is confusion regarding the overall status and application of polices and laws regarding land and property. Those that exist are often unclear, lack effective implementingregulations, and are often very dated and so do not adequately serve 77 the present Liberian reality. As well the existence of a good deal of received law from England via the US can be unsuitedto the present Liberianreality and lead to furtherconfusion. The physicalabsenceofthese laws complicates this problem. 0 There is a good deal of ambiguity about what rights are and are not included in a concession. Particularly important in this regard is the right to exclude local communities. 0 Fraudulent and ambiguous land transfers have created a great deal of ambiguity regardingwho has rightsto what lands, and how defensible these might be. Some of the cases inthis category are explosive. Despite the new inheritance law, there continues to be a great deal of confusion around issues of inheritance-between siblings, between children, and between families-this is an equity landtenure issue. 0 Adverse possession is a problem, whereby if land is occupied in an uncontested manner for 20 years, the occupant gains ownership. It is currently unknownifthe 14 years of war are to be included in the 20 year period needed. This is relevant to squatters, their eviction, what constitutes `uncontested' when the owners fled the war andthe court systemwas crippled. 23. These and other issues in Liberiahighlight a couple of issues. First, postwar land tenure scenarios are extremely messy and chaotic, and while it can be temptingto attempt to untangle and resolve with clarity all outstanding issues and cases as an overall approach to `the chaos'- particularly as the notion of, and application of, `law' tends toward defined, deterministic outcomes, the reality is that the chaos is best `managed' in various ways as a large, first step. This was the logic behind Mozambique's `category' approachnoted above, and East Timor's intent at providinga number of smaller land and property laws (insteadof a single, all encompassing law) that dealt with specific issues. 24. As well, East Timor's further elaborated on this approach by puttingdifferent aspects of the confusion problem in different levels of lawmaking in addition to different laws. Realizing that a gooddeal of confusion surrounds issues that can be dealt with in a specific legalruling, the construct of `decree' was used as subservient to a law, but more precise than law. Something more akin to a `legal ruling' which would benefit Liberia considerable on a number of topics. Such a ruling can provide clarity to specific issues, and when the ruling is then effectively disseminated, can have the effect of pre-empting the occurrence of some dispute cases and resolvingothers outside of court. From the list above of Liberia's issues causing confusion, the followingwould likely benefitfrom such specific legal rulings, similar to EastTimor's `decrees. Y 1. The legal distinction between government land, public land, and aborigine or tribal land deeds; 2. What rightsare and are not includedin a concession; 3. The issue of adversepossession,are the war years to be included? 4. A decisionregardingwhat constitutesa `bad faith' versus `good faith' land transfer; 78 5. Which laws are and are not still to be applied in Liberia-including old laws, `received laws;' 6. The legal steps for acquiring land deeds; 7. Who (which position in government, customary society) has authority over land matters, and who does not; 8. A legal decision about how to handle specific problems, in other words what criteria will be used for certain issues. 25. Such approaches however need to be implemented with some caution. Sierra Leone found that there was great resistance to increased clarity by surveying boundaries and clearly defining them. As in Liberia, this resistance at times was violent. This reveals that for some, ambiguity is a positive feature o f the tenure landscape. It also, for Sierra Leone, revealed that in the customary sector, boundaries at times are not the discrete, clearly demarcated features that they are in Western-based land law. Often they are zones, which can vary in use, rights, and precise location over time, and for different members o f different groups. As well, some o f the `rulings' or decrees are time specific. For example a decision regardingwho has the authority to handle land matters, would need to have a start date and not operate retroactively, which would have the effect o f invalidating many land and property decisions, adding to the confusion problem. 26. This `legal ruling' or `decree' approach can also be carried to extremes. In Ethiopia the rework o f subnational boundaries into `ethnic regions' and the rulings by the state to have traditional authorities o f certain ethnic groups (and not others) be authorities on land and property matters (along with a variety o f other issues) has led to clearer notions o f authority, but also considerable animosity by groups o f different ethnicities. Legal Pluralism 27. The existence, emergence, and questioning o f different approaches to land tenure after conflicts in a `legal pluralism' format is one o f the more pervasive features o f postwar land tenure. Such legalities, or `local rule o f law systems' (Kamphius 2005; Plunkett 2005) encompassing formal, customary, ad hoc, and smaller emergent normative orders can cause significant problems, as in Liberia, but as well present certain opportunities. The problems in Liberia that are connected to a legally pluralistic tenure environment include: 1. The educated rural people had become aware o f their exclusion and marginalization in the interface between the customary and statutory systems. Such increased awareness if common after a war. In Guatemala returning refugees were very well versed in a variety o f rights issues, including land rights, due to their residence in refugee camps run by the international community. When juxtaposed with the tenure ideas o f those who stayed behind however problematic pluralism inhow to go about tenure issues result. 2. During the years o f conflict, multiple new administrative units with poorly defined boundaries were created by different legislative bodies. Today there is often overlap and jurisdictional ambiguity between the state-supported customary units o f clan and paramount chieftaincies with the townships and cities subject to the statutory system. 79 3. Questions are arising regarding the authority of certain officials in land matters, e.g. do they have the authority to sell land or otherwise engage in or approve landtransfer? In communities which rely upon usufruct rights, people (especially youth) are questioning the process by which chiefs were able to authorize the deeding of the community's land, either to "strangers" or local elites. Some are suggesting that this system is in fact creating a feudal structure in rural Liberia in which the deeded owner can exclude the localpopulationfrom any use ofthe land. 28. With a problematic state, and inadequate legislation to resolve important land and property rights dilemmas, the utility of purposefully engaging pluralism in a peace process deserves examination. In this context the literature describing `forum shopping' with regard to landtenure is significant, and is one of the more valuable applied aspects from the field of legal pluralism. A number of authors note the existence of situationswhere there are opportunities to choose between fora belonging to different normative orders (Benda-Beckmann 1981). While legal pluralism in land can present significant problems, pluralism can potentially offer certain possibilities with regard to choosing which normative orders and institutions an individual or group believes offers the most advantageous arena in which to pursue important property rights issues. The effect of such forum shopping for landtenure institutions is to create a situationwhere there can be considerable `room for maneuver' or negotiability within the political-legal sphere (Lund 1996). This creates the possibilityfor less violence ina peaceprocess ifclaimantsfeel that there are not rigid, uncompromisinglegal structures of questionable legitimacy confining their options (Berry 1993). After a war this approachcan be useful for a time, but then begins to cause problemsunless convertedfrom a horizontalarrangement of equal fora from which to choose, to an `appeals' arrangement whereby first one fora is attempted, and then if the resolution is unacceptableto one ofthe parties, an appealcan be madeto another fora. This `realignment' from the horizontal to the vertical can sometimes happen on its own, as it did in Somali Region of Ethiopiasubsequentto the longwar with the Dergthat ended inthe early 1990s. 29. State recognition of a legally pluralistic land and property situation in a peace process is especially importantto a weakened state of questionable legitimacyemerging from civil conflict; as such a state will needthe customs and controls within local communities for administrationof land. But Griffiths (1986) notesthat recognitionby the state of legalpluralismadds a "formidable layer" of complexity on the state legal system, with the resulting situation generally regarded as defective and messy. It can be argued, however, that postwar scenarios are already considerably messy, andthat the priority shouldbethe peaceprocess. 30. In this regard Ethiopia will be an interestingplace to watch. After several decades of civil conflict, significant legal pluralism exists and has been formally recognized in a number of important domains. Ethiopia'sconstitutionalarticle 78 (5) accords full recognitionto customary and religious courts of law and their legal guarantee is ensured. In Ethiopia significant room appears to be allowed for litigants to `forum shop' because such customary and religious courts only hear cases where bothcontestingparties consentto the forum (Unruh2005). InEl Salvador's Chapultapec peace agreement, as in the Mozambican peace accord and subsequent legislation regarding land, state recognition of pluralism have contributedmuchto the success of the peace processes in these two countries, particularly considering the large role that land issues have playedinthese conflicts. Inboth cases such recognitionwas a primary vehicleto facilitatethe re- integration of much of the population into productive activities (de Soto and del Castillo 1995; Unruh2006). 31. After the war in Sierra Leone there was considerable separation between the two land tenure systems of the country (formal and customary), and as well between the many forms of 80 customary tenure as practiced in the 149 chiefdoms in the country. Such pluralism constituted a serious problem toward harmonizing tenure for the country after the war, and constituted a significant obstacle to commercial investment, rule of law, equity, gender and 'stranger' discrimination, and postwar reintegration. The Law Reform Commission (whose purpose i s to find approaches to modernizing laws dealing with the commercial use of land, particularly inthe provinces where customary law predominates, with the goal of attracting foreign and domestic investment), saw as the primary problem of such pluralism, the low level of contact and communication between chiefdom leaders over time, coupled with the non-publication of customary and formal land tenure decisions, also over time. The result, had such communication and publication occurred, according to the Law Reform Commission, would have been to share experiences, and allow different chiefdoms to learn about and therefore use, the different reasonings and logic behind the tenurial decisions made in the various chiefdoms and with the state. The overall effect would have been an eventual harmonizationof important aspects of land tenure over time between chiefdoms. 32. Formal recognition of multiple orders with regard to land and property does not mean that such a situation would remain static. Recovery from armed conflict is a time of significant social change. Such change can see forms of legal pluralism evolve significantly duringrecovery, with such evolution a fundamental aspect of legal pluralism generally. Several studies articulate the progressive expansion or infiltration of state law into non-state normative orders over time, so that in many cases these can come to resemble state law. And the reverse can also be the case, with state law borrowing concepts and symbols from other normative orders (Silliman 1985; Hayden 1984). 33. However, this change in normative orders through interaction is not always slow and incremental. In work relevant to post conflict land tenure situations, Lund (1996) argues that when negotiation is a central feature of land tenure conflicts, "open moments" become important in which intense periods of social rearrangement can occur. An open moment is an opportunity where the room for "situational adjustment is great and hence where the capacity to exploit it is crucial for the actors". In war and postwar situations, legitimacy, authority, and rules are much more fluid and open than perhaps at any other time. Thus an important feature in postwar situations is the rapidity with which social relationships change to reflect the rapid change in society. Open moments are thus very likely to occur in peace process situations when much about land tenure, legitimacy, rules, and authority are being challenged by the forces associated with recovery. 34. Griffiths (1985) notes the existence of the direction of a path of interaction in legal pluralism toward eventual unification with state law, which acts to put pressure on social reality toward this eventual goal. Griffiths thus observes the relationship between legal pluralism and nation buildingas one in which legal pluralism is something that is often allowed to recalcitrant parts of society on the path toward and inthe process of nation building. Authority 35. Issues regarding authority are manifest in a number of ways regarding land tenure in Liberia, some of which have been elaborated upon above. Two remaining, yet important issues about authority in landtenure involve, a) one of the causes of the war, where generational conflict was central as young people saw themselves excluded and marginalized as the elders controlled access to land; and the role of authority in the approach used to formulate new laws in order to get 'buy in' from the populace at large. The former involves relationships of perceived power, 81 andthe latter involvesthe degreeto which a consultativeapproach to new landand property laws will be carriedout andbe effective. 36. Generational Authoritv. A country with a generational aspect of the war in agrarian relations most similar to Liberia i s neighboringSierra Leone. Here considerable effort has been advanced (primarily by UNAMISIL, but also by other donors and NGOs) toward reworking power relationsamongthe youth, particularlydisenfranchisedyouth, andthe elders and chiefs of their respective home areas. The postwar role of the chiefs is moderated by the broader sensitizationefforts of the UNAMSIL driven peace process, which together with the disruptive effects of the war has enabled certain previously marginalized and under-represented sectors of rural society-such as youth, but also women, and strangers-t now have a much greater voice, and have their demands considered. The many radio stations and radio programs operatingin the country appear to be of significant importance and influence in the rural areas, particularly in terms of facilitating awarenessregardinga number of important issues. Broadcastsdiscussing not only land rights, new laws, and laws being formulated, but also people's rights, human rights, roles and responsibilities of chiefs and government at different levels, elections, and voting, as well as call-in programs are very popular. The paramount chiefs in Sierra Leone have made clear that the voice of previously secondary groups is much stronger subsequent to the war, and that they are now obligedto pay attentionto these voices. Thus the change in social relations that has occurred with regardto such groups and the power structure (common after a war), and the large presence of the international community in the country, together with the informationcampaign, providethe recognitionthat previouslymarginalizedgroups now have possible accessto recourse outside the district andor chiefdom. Thus while the position of the paramount chiefs subsequent to the war has been strengthened, so has the position of certain previously secondary groups, leadingto the development of a different form of governance inthe chiefdoms. 37. The changes in rural social relations in Sierra Leone are significant because it has influenced the access, value, and availability of the land. One effect of this change is that agriculturallabor is now much more costly, and much less likely to operate within any obligatory framework. This makes fine-related, communal, and wage labor much harder and more costly to obtain, with repercussions on the spatial extent of areas that can be cultivated. The change has also providedthe opportunityfor marginalizedgroups to exerciserights regardinglandthat might not have occurred othenvise-such as land access for youth and women's groups. At the same time however this greater voice for previously secondary groups has, in some chiefdoms, hadthe effect of an increased reluctance to allow `strangers' onto land over the long-term, or in some cases at all, for fear that they will now have an ability to claim such lands fraudulently. Renner- Thomas (2004) describesthe "new phenomenonof landgrabbing" in Sierra Leone. Authority and the consultativeapproachto postwar land legislation 38. There are various arguments for and against a process of consultation by the state authorities in postwar land tenure efforts. Those against include: 1) it is time consuming, 2) the national population is not educated enough to be able to have knowledgeable input, 3) societal divisiveness can becomeaggravated, and 4) a nationaldebate about certain topics can grow out of the control of the government, with this becoming a problem if the government is sensitive to specific topics. Arguments for conducting a consultative process in the formulation of postwar land laws and reform include, 1) in order for the populace to `buy into' the new laws, they must provide input, 2) innovative ideas for solutions to problems, and nuanced understandings of existing problems and situations can come from a populationwho experiences the problems first hand, 3) an airing of different views regarding land rights, problems, and solutions can take the 82 place o f a violent expression o f such views, 4) national consultation can serve to fillthe time gap between researching the nature o f the need for specific laws, and the drafting and passage o f such laws, thereby allowing the population to see that the government is pursuing land issues-as opposed to the populace feeling that the government is doing little on land issues and therefore feel compelled to take matters into their own hands. 39. The last item deserves particular mention. There is a significant time issue with regard to land tenure after conflicts, and Liberia is an important example of this. Given that there is a legal, capacity, financial, administrative, and equipment vacuum after conflicts, during which individuals and groups, must make decisions regarding various aspects o f land tenure on their own, it is important to influence aspects o f this vacuum so that events and processes do not develop into severe problems. Thus while it takes time to derive new laws and policies- particularly given the poor record that quickly importing legal constructs from elsewhere has- filling the period between the end o f the war and when such laws and policies come on line is important. In this regard a government needs to be seen as active in the land issue by the population at large. This can be accomplished in a variety o f ways, including a consultative process, and by holding conferences and workshops for stakeholders at different levels and in different locations in the country (Unruh 2003; 2005). In an example from Rwanda, approximately 2.3 million refugees entered the country between 1994 and 1997. And the formal re-establishing land tenure system was slow to handle the influx and did not make overt, high profile measures to move forward with land issues. As a result, the direction that the refugee resettlement took in some areas was little influenced by the state, and included violent property takeovers, and other forms o f self-settlement in lands and properties that were abandoned, or held by the remaining Hutu occupants (Huggins 2004). In Liberia the timing o f work on land reform needs to be coordinated with other aspects of national recovery, including the phased withdrawal o f UNMIL. It is important that the public knows that work i s being undertaken and that it will take some time for results, solutions, and reforms to emerge. National and regional workshops can serve the function o f making the public aware that their concerns are taken seriously and that serious, balanced work is underway. 40. Four countries serve here can serve as in a `lessons learned' capacity for this issue. In Mozambique a three year process involving large-scale consultation took place, including three national land conferences at which a large variety of stakeholders were involved. While the resulting Mozambican land law that came about is regarding as largely positive for tenure security in postwar recovery and investment, the process was long. As well there were various attempts by the state to control the debate on land issues, with NGOs and donors having a large role in the forcing the opposite. Thus where there are significant natural resources and agricultural export opportunities in a country (as there are in Mozambique and Liberia) the maneuverings among different groups on the sidelines to the consultative process are intense, with sometimes unpredictable outcomes, and foreign interests become involved. Some o f the more contentious issues included, 1) was land to remain the ultimate property o f the state, or was private property to be invoked, 2) were former Portuguese colonists to be allowed restitution o f lands, 3) how large o f a role should foreign donors, embassies, and other interests have in attempting to influence the consultative process and the debate on specific land issues, and 4) was the country to be zoned into various areas: commercial, native, state, private. 41. East Timor took a different approach. Unlike Mozambique which has one new land law which seeks to cover all topics (hence the time the consultative process took), East Timor has 83 pursed an approach whereby a larger number o f laws covered specific topics: Land dispute mediation, Landtitle registration, Land & title restitution - formal & traditional rights, Compliance with East Timorese constitution by foreign owners, State property administration, and the Cadastre system law. Inthis approach, the consultative process was approached in a much more specific way, attending to the specific law (and specific topics) that was under consideration at the time. This is quicker, but the process then needs to be repeated each time a new law comes up for consideration. However with repeated consultative processes, each one is easier and more streamlined. Also problematic in this approach are the different interests connected to specific topics and therefore laws, who then attempt to influence the consultative process in some way. In East Timor the authorities in the Ministry o f Justice we% not overly interested in a sustained consultative process that would air all views; their view was more one o f expediency. Donor interests played a role here and inthe end there was an effective consultative effort. 42. Sierra Leone pursued a similar approach of having several laws instead o f only one, these include: The commercial use o f lands act, The legal practitioners act, National lands policy, Lands commission act, Local government act, and Restitution - the Chaytor Committee. While the topics covered by the laws are different than in East Timor, it does reflect a division o f the broad, chaotic nature o f postwar land tenure into more easily managed components, particularly interms o f consultation. 43. For both East Timor and Sierra Leone, the ultimate time period when all postwar land and property laws have been passed and implemented may be just a long, or longer as in the Mozambique case. However the advantage is that certain problematic topics that need quicker attention (restitution for East Timor, commercial use o f land for Sierra Leone) can be dealt with first, thereby attending to the most problematic societal, land-related issues quickly. 44. Angola again provides a negative example where very little consultation took place with the populace. What did occur (largely on its own or with the assistance o fNGOs) resulted in very little input into the actual land law. The result i s ongoing expropriation o f lands after the war, no restitutiono f lands, opportunism, and a governance approach overall seen as heavy-handed. Some NGOs were able to provide, with foreign assistance, field research conclusions as input into the overall legislative process. While a few o f these were vocal, and attempted to gamer attention to the issues they felt needed outside input on, ultimately the influence was weak. It remains to be seen if Angola will experience problems in the near future regarding the land tenure in the country. 84 Legal andAdministration Svstems 45. The issues in Liberia that constitute problems involving legal and administrative systems fall into two categories; training, and administration and system mechanisms. 46. Training There is a wide variety o f training needs in Liberia regarding land and property rights. Specifically there is a lack o f trained personnel to manage the overall system and to in particular to adjudicate disputes. Unauthorized surveyors are taking advantage o f the fluid situation. There is little information on the current adjudication o f land disputes by elders, chiefs and commissioners within the state-supported customary system. 47. Sierra Leone, East Timor, and Angola, present examples o f how to jump-start the acquisition o f trained personnel for the many needs o f a recovering land tenure operational structure. In all three cases an initial approach was to try to find already experienced personnel who had worked in the land and property rights system(s) (at the different levels, in different locations throughout the country). In these cases there were a number o f individuals who held positions in land and property rights units in previous (pre-war, wartime) governments who had training and/or knowledge o f how these units operated, and so at a minimum were familiar with operations, problems, and administration o f such units. 48. While the above i s a very worthwhile approach contributing to the shortage o f trained personnel in the near-term, there exist a couple o f problems. One problem is that at times these personnel are attached to different sides inthe conflict and so there are inter-personal professional issues to overcome. Another is how to locate such individuals, and a third is that the longer a conflict has lasted, the less available such individuals are. East Timor provides the best example o f the utility o f this approach to overcome these problems. With the departure o f the Indonesian Civil Service subsequent to the referendum and ensuing violence, East Timorese workers in the Land and Property Unit were easily located at the site o f the burned down land and property archives office (one o f the first buildings destroyed, along with most o f the records in the violence). Subsequent to the end o f a conflict, particularly a short-lived conflict, workers often show up at their former places o f employment to see what remains of, their jobs, buildings, office infrastructure, and personal or professional possessions and documents. UNMISET personnel in East Timor located a number o f employees o f the land and property unit who spent their days loitering around the burned out building, and hired them in the new Land and Property Unit. But because the Indonesian Civil Servants occupied the upper positions in the Unit, those East Timorese who were available were largely the technical and not the administrative staff. Nonetheless they were very aware how the operations o f the Unit took place, and several were able to be promoted into administrative positions. The advantage o f the East Timor case was that the conflict was short compared to Angola's, Sierra Leone's, or Liberia's. However the location o f former (prior to the war) land and property administrative buildings are still valuable in that neighbors in the vicinity often know who worked in the buildings and potentially their current whereabouts. 49. Apart from the location o f already trained personnel, the training o f new personnel can involve a series o f activities. In Sierra Leone, and Mozambique former employees from ministries, universities, and NGOs were located and attracted to training efforts (usually funded by donors) designed for individuals who already possess significant administrative andor technical skills. Such training is then o f shorter duration than that associated with unskilled individuals. 85 50. The third type of training resides largely in the educational system of the country and is the most time consuming4ue bothto the often crippled status of the education system after a war, and the length of time it takes to get a degree in an field appropriate to land and property administrationandtechniques. As well some aspectsofthis trainingrequireconsiderablephysical assets (such as law books, surveying equipment) that are likely to have been looted or destroyed during the war, and can be costly to replace. In order to provide a short-cut to producingthe neededtrainedpersonnel to work in land and property, Mozambique, East Timor, Sierra Leone, have all created or recreated specific training and researchunits within universitiesjust after the war in order to specifically address both research issues pertinentto land policy reform, survey, registration, and dispute resolution, as well as the neededtraining.Inthe case ofMozambiqueand East Timor, USAID donor efforts worked with the University of Eduardo Mondelane in Mozambique and the University of Timor Leste (UNTL) to establish social science research centers, with specific, solid links to the land tenure policy making and technical activities in government-in Mozambique's case with the InterministerialLandCommissionandthe Ministry of Agriculture, and inEastTimorthe Ministry of Justice. 51. Two objectives were accomplished with the establishment of such centers at the universities.First, the neededresearch(legislative, field) on topics of importance to land policy reform is not a one-time need or effort that ends once the near-term needs of legislation and technical (survey, registry, etc) activity have been met, and donor funding has gone elsewhere. Because land tenure for any country evolves over time, there is an ongoingneedfor information and data gatheringregardinga wide range of issues.This is particularlythe case inthe years after a war (approximately a decade) when socio-political, agricultural, investment, reintegration, restitution, and urban residential issues change often and rapidly. The second objective is the training issue. Bothfaculty and students from different disciplinescanbecome involvedthe work ofthe center and hencetrain and receive training.An importantneedin land policyreformafter a war is the fieldwork in different parts of the country, needed to inform the legislative process. Locatingliterate personnel for such an activity is difficult-particularly when there are different languages involvedin different parts of a country.The use of university students for this activity is an advantage, becausethe pool of experience, areas of originwithin a country, and languages i s large. 52. In such a context the link with the government's legislative process is importantand is facilitatedin both East Timor andMozambique by a specific donor who took the leadonthe land tenure effort. This link was accomplished in-partby locatingthe offices ofthe donor-funded land policy reform work in at the newly created research unit at the university, together with a purposeful and strong link made between the legislative process and the research unit, as suggestedand supported by the donor. 53. InAngolatherewas less interestonthe partofdonorsinthe postwar landtenureefforts, and so less of a connection between a research unit at an Angolan university. Instead this function, both training and `research to inform policy,' took place within the NGO community. But because there was not a formal, overt link with the Angolan legislative process and institutions, there was less input, and so now a great disconnect between the new Angolan land law andAngolan realityexists. 54. In Zanzibar, subsequent to the violence that has marred several recent elections, an independent research center, the Indian Ocean Research Institute (ZION), located next to the nationaluniversity, and funded by northernEuropeandonors, is emergingwith an ability to train students andcarry out relevant researchto policy-making. 86 55. The activities o f such centers, if established quickly enough, can also serve to attend to the timing problem, noted above whereby the general population, particularly in problematic areas o f the country, need to see movement on the land issues, so as to gain confidence in a new government and not take land matters into their own hands. The presence o f a research activity in different areas o f a postwar country does not go unnoticed by the local population and can serve to be another indication (apart from the consultations) that the government is underway with important land tenure issues, and is interested in learning about local problems. In the latter regard such research can be seen as a form o f consultation as well, since it seeks to gain input as to the local reality. InLiberia two such important timely issues (but there are others) in need o f research are: 1) the status o f large numbers o f refugees returning to Liberia, particularly from Guinea and Sierra Leone; and 2) the issue o f ex-combatants-some cant go back to home areas, others do not wish to, and others are taking land. The nature o f this problem and what to do about it are time sensitive, and would be well served by informed action. 56. Administration and Mechanics o f System The needed linkage between understanding what the tenurial reality is among the population and the legislative process and institutions has been covered above in `Training.' A separate administrative problem in Liberia is that the administrative and judicial systems required to handle land matters are underdeveloped, nonfunctional, or overstretched. Apart from the needed land tribunal for judicial issues noted above, administratively other components o f postwar tenure often need to be derived. Some countries have dealt with the need to derive new administrative units, purposes, and procedures, by seeing where within the current land and property structure (from policy making to cadastres and registry) the needed administrative components should be located, and then either moving it there (if it exists elsewhere in the current system) from a different location where it is less effective, or deriving it for the first time. The implementationo f a registry for example in a country that has not previously had one (Liberia), will need to undergo this exercise. As well countries which have had no previous institution in which to hear dispute cases where one party operates under the statutory system and the other under the customary system (also Liberia), would need to undergo this exercise. 57. In East Timor this effort was done by relocating specific functions from different Ministries into the Land and Property Unit under the Ministry o f Justice, where focused donor and UN supported projects could best support them. In Mozambique and Sierra Leone some o f the needed institutions and administrative purpose were in place, but not the needed physical infrastructure or sufficiently trained personnel-surveying, vehicles, materials and training for registry procedures, etc.). Such efforts are cost intensive, and are often borne by donors. However there is a caution here which Sierra Leone has experienced. This is, that the provisions by donors to a recovering land and property system must match or nearly so, the expected capacity (financial, administrative) o f the receiving country to sustain what is provided. Sierra Leone was in need o f much after its war, and requested a long list o f needed institutions, training, administrative procedures, infrastructure, and tenure system components that were more appropriate to a developed country, and that Sierra Leone would be unable to sustain itself subsequent to donor support. 58. An additional tenure problem after a war is how to rework a clearly non-functional or inappropriate tenure system that has accumulated a great deal o f problems both previous to and during the conflict, and continues to do so subsequent to the conflict. While a needed corrective, or new system (such as a registry instead o f a deed system) can be proposed that would more closely suit the needs o f the country, often a misconception is how to go about applying it. What i s needed is to separate what the country should have (future), with the current problematic cases (backlog o f individual, group, state, commercial disputes, confusion, etc). Here Mozambique 87 serves athe best example, whereby the new system had specific dates intime after which it came into effect for new applications, but already existingcases were dealt with differently. But Liberia is perhaps its own best example of what to avoid. Prior to the war a USAID/World Bank project sought to move toward a registry system, but the project viewed the current state of affairs and the needed future tenure system as one issue, and so proceeded registering titles only upon adjudication of current disputes. The result was that progress was extremely slow-much slower in fact than the growing pool of problemcases. The resultwas that the adjudication/ registration effort would never have caught up with the growing size of the overall problem. The approach used by Mozambique, was again to initiate a set date, after which the new system is applied for all new title applications. This way the size of the chaos problem does not continue to grow. Separate efforts can then attend to the pool of pre-existingproblem cases-adjudication leading to registration, re-application of certain categories of claim under the new procedures, legal rulings leading to registration, mediation leading to registration, political decisions and resolutions leading to registration (for very high profile cases involving specific powerful interests)-all of which Mozambiquepursued, with considerable success. Commercial(foreign, domestic) Investment and the Land Law 59. The constitutiononly allows Liberiansto own property.However a variety of countries in Africa have similar arrangements and they are not constraints on investment, What is needed are innovative forms of conveyance other than private ownership. While the assumption for many international investment interests is that only with private property will the necessary tenure security be conferred, in the developingworld often the reverse is the case. Private property- even when enshrined in formal law-can be amongthe most difficult of arrangements to securely hold. Leasing however providesconsiderable promise, and is clearly preferredby many countries and communities in Africa. InMozambiquea robust leasing environment exists, with protections available to all parties in a lease. In Sierra Leone innovative leasing arrangements are in the offing, which much more easily mesh with local, customary ideas and logic about land tenure, and is therefore mucheasier to deliver interms of secure holdingfor a particularuse. 60. Mozambique also had, after its war a `foreign investment office', which served to interface with interested investors, and act as a liaison between the investor on one hand, and customary society and formal legalities on the other. It is here where innovation is needed in terms of the derivationof specific forms of `conveyance' neededto make forms of leasehold act to both ensure customary occupants that their future use and occupation of land is not compromised, andto move such landinto a productiveinvestment environment. 61. In Sierra Leone, the current legislation seeks to work `with the grain' regarding the `element of continuation' for the landholdinglineages-that the land `belongs' to the lineage in perpetuity. However in order to both support the element of continuation and fully explore opportunities for pursuing a range of postwar land access goals, the legal logistics for such opportunities must mimic the way land functions within the `element of continuation' in customary society. Inthis contextthe question is, how can land inalienabilityandthe `element of continuation' be used as tools in postwar land tenure? More specifically, what forms of rights transfer can both satisfy these conditions, and provide secure land access to a range of strangers, from ex-combatants and IDPs, to foreign investors? The new legislation in Sierra Leone is attemptingto connect formal and customary land tenure, while attending to the overall goals of both in a postwar setting. The current land legislation seeks to use innovative forms of 88 `conveyance' to achieve this. Thus by placing greater attention on tailored forms of conveyance and less attention on actual law, significant potential for innovation is possible. 62. The formal legal notion of `conveyance' is the transfer of a right to another, but under a very wide variety of concepts, conditions, and circumstances Garner 2000). The distinction between law and conveyance is that land law deals with legal rights in land, whereas conveyancing is "law in motion" (Burn 2005). In other words, legal concepts about property reside in law, but the mechanics of applying the concepts is what constitutes conveyancing (Onalo 1986). Kenya has some successful experience in this regard (Onalo 1986), as has Mozambique. One advantage of focusing on conveyances is that the variety and flexibility of different forms of conveyance is an important fit with the fluidity o f postwar landtenure, and also engages the element of continuationand land inalienability. ConcludingNotes 63. Post-conflict situations are unique settings in their combination o f a weakened and chaotic formal system, robust, vigorous, but fluid, informal tenure activity, along with the presence of a peace accord, political demands and concessions regarding land, and international actors that can have a large interest in the success of the peace process. While this combination carries risks, it also represents real opportunity. In this regard the tenure reorganization and reform efforts, need to look outside the confines of ministries and missions, to assess how the development of tenurial institutions, problems, and processes are proceeding `on the ground' in what will be a very lively rural smallholder tenure sector-so as to draw legitimacy from these processes into reformulating national structure, policy, and law. Without this purposeful connection, tenure institutions at different levels risk evolving in different directions, with considerable difficulty later on in attempts to connect them. With such a connection, new policy can support what people are already doing, and engage in real ongoing problems of disputing, resettlement, restitution, proof of claim, and development. 64. Such an improved relationshipcan beginas a peace accord attempts to resolve land issues involved in the conflict itself (particularly if the conflict was about land, or came to involve a significant land-based resource component--oil, diamonds, timber, wildlife, export crops). As well, because the international community presence in post-conflict settings can be much larger, and much more empowered, it can have more influence on a weakened government than in peacetime. The result can be a significant effort, pushed by the international community, to resolve important or contentious issues, including attempting to craft laws which support livelihoods of the poor. This was the case in Mozambique (Unruh2004b), Ethiopia (Unruh2005), and Nicaragua (Barquero 2004) in various ways and is a process currently underway in East Timor (Marquardt et a1 2002). In Rwanda it was noted that "the post-conflict environment represented`a great opportunity for land reform" (Huggins 2004). Thus positive reform of formal structures pertaining to land can take place within an opportune period subsequent to conflict. A period inwhich input from the rural informal sector can be influential. 65. Inpostwar countries it is common to have a surge of landtenure problems three to five years after fighting has stopped. This is because in the immediate postwar lull, people are upgrading livelihoods in rudimentary ways. But at about three to five years continued upgrading needs a property rights system and it is then that the problems now facing Liberia emerge. While social unrest connected to land and property issues is unlikelywhile UNMIL has a large presence in the country, at some point the peacekeeping forces will be stepped down and the rule of law needs to step up. 89 66. Liberia holds significant similarity with other postwar countries in terms of land tenure; either because features are common to postwar land tenure situations, or specific characteristics are shared by other countries for a combination of geographic, historical or cultural reasons (e.g. Sierra Leone). While some countries have successfully pursued innovativeapproachesto certain land tenure problems after a war, others have had difficulty. And while the ingredientsfor well functioning land tenure systems in both developed and developing countries are known, the primaryquestion for postwar scenarios is how to achieve such ingredientsand assemblethem in a workable format and in a timely fashion. Thus while it can be tempting import land tenure systems that work elsewhere, in whole or part, the dilemma is that postwar landtenure situations are unique, because the specific tenure needs of the affected populationwill operate in distorted fashion compared to stable situations. Some issues will be magnified, others minimized. For example the issues of managing rampant opportunism, and dealing with individual and group grievances, as well as landresources for near-termfood securitywill be magnifiedafter a war. On the other hand issues dealing with taxation of land and property will be less of an immediate priority. 67. While certain solutions seem attractive, it matters how they are implemented. The implementationof a land registry is an example of this, as is the clogged nature of the courts. If the implementation of a registry seeks to freeze land and property transactions while it is assembled and implemented, the resultwill be the creationof a black market in landandproperty, thereby constituting a third land tenure system in the country. This is because a society cannot `freeze' land and property transactions. These go on as part of livelihoods regardless of the existence of laws or the decrees by a government. Transacting land and property will go on during a freeze, and will adopt the norms it needs to in order to both get around the freeze, and allow transactions. Integrating a black market in land and property back into a formal property rights system is not easy. As well a government decree regardinga freeze is not the only way a black market can be encouraged. An ineffectivecourt system over prolongedperiods, due either to legitimacyproblems, or the system beingclogged (Liberia has both), also results in incentives to participate in black market mechanisms as an alternative.However while a freeze may not be possible there are ways to slow the rate of transactions so that the volume is less while new land tenure constructs are put into place. One of these is to pursue a vigorous, well-publicized consultationprogram, in particularthe regionalto nationalconferences on land and property.Ifit i s clear that such consultation will have input into new policy and law regarding land and property, then many parties in potential transactions will adopt a `wait and see' approach transactions, claims, and disputes. This can have valuable utility and allow a period of time to formulate successful solutions. 90 Annex D. Presentationon Lands Commission LandCommissions: ExperienceandLessons GovernanceReformCommission, Liberia John W. Bruce, World Bank Consultant June 28,2007 The Presentation 0 Rationale 0 Diversity of Functions 0 Type 1:PolicyandLaw ReformCommission 0 Type 2: Adjudicatory Commissions 0 Type 3: State LandCommissions 0 Type 4: "Comprehensive" LandCommissions 0 Some Lessons Rationale Purposesthat LandCommissionsserve include: 0 Expandparticipationindecisionmakingfrom within andbeyond government 0 Undertake fact-finding andpublic consultationto inform decision-making 0 Limit influenceof vested interests in government 0 Providea forum for forging compromises 0 Limit direct political influenceover outputs 0 Achieve creditabilityand durability for outcomes Diversity of Functions Institutionscalled"Land Commissions" performquite different functions.They include: 0 LandPolicyLaw ReviewCommissions 0 Adjudicatory LandCommissions 0 Public LandManagementCommissions 0 Multi-PurposeCommissions Tyue 1: LandPolicyLaw ReviewCommissions 0 Tanzania, Mozambique 0 Review andevaluate landpolicy and law and recommendreforms, producingdraft policy and law. 0 Temporary: two to four years 0 Reportto the President, exceptionallyto a Minister 0 Strong chairperson, virtually full-time; some membersmake major time commitments 0 Stronginquiry/consultationrole 0 Issues: legalbasis, funding, secretariat, contractualcapacity, sittingallowances, point of closure Type 2: Adiudicatorv LandCommissions 0 Examples: SouthAfrica LandRestitutionCommission, CambodiaCadastralCommission 0 Limited sub-set of landclaimddisputes(SA) or general (C) 0 May adjudicate (SA, Niger) or only mediate/arbitrate(C) 0 Temporary (SA) or permanent(C) 0 Centralized(SA) or decentralized (C) 91 0 Chairs, members may be legal professionals ifadjudication (SA) or trained officials if mediation (C) 0 Issues: legal basis, funding, fact-finding capacity, procedures, judicial enforcementheview Type 3: Public Land Management Commissions 0 Examples: Land Commissions in Ghana, Uganda 0 Commission approves leasedgrants o f public land, makes policy recommendations and may hear appeals regarding Ministry actions on public lands. 0 Semi-autonomous within Lands Ministry, often with constitutional status, often appointed by President 0 Typically created to combat corruption within Lands Ministry Members are officials and respected members o f civil society 0 Commissioner is Ministryofficial and supervises Ministry implementation staff 0 Issues: independence vs. low accountability, relationto courts Type 4: Multi-Purpose Land Commissions Example: Niger Land Commissions 0 Local commissions in highlydecentralized system to implement Code Rurale 0 Functions include local rule making, dispute resolution, and land allocation 0 Chaired by local official; members include local officials, traditional leaders and elected members 0 Issues: limited local implementation capacity, and questionable combination o f roles Some Key Lessons (1) 0 The mode o f creation o f a commission depends on national law, it but should have legislative or at least presidential mandate 0 Diverse and non-partisan membership (including both official and civil society members) results in more durable policy and law reforms 0 Representationo f relevant ministries will ease enactmentlimplementationo f reforms 0 Officials should be in a minority and serve in personal capacities rather than as Ministry representatives Some Key Lessons (2) 0 Critical assets: strong and respected Chair, high-capacity secretariat (administrator, secretary and finance officer), fact-finding capacity and transport 0 Secretariat may be hired directly or seconded from an existing institution, but must be full- time 0 Technical experts may be included on commission, appointed to secretariat, or contracted 0 A policy and law reform role should include supervision o f legal drafting and presentation o f revised laws for enactment Some Key Lessons (3) 0 Studies o f a participatory appraisal nature are most effective for fact-finding 0 Broad public consultation with stakeholders is critical to quality and ownership o f recommendations and decisions; good process and transparency are key 0 The primary stakeholders to be consulted are the public especially land users, not officials 0 Consultation must hear concerns but also provide an opportunity to discuss potential solutions; it should not be simply a forum for venting complaints 92 Some Key Lessons(4) Publicitycanbuildexpectationsandmomentumfor recommendations 0 An adjudicatoryrole requiresclear rules on proceduresandonjudicial enforcementand reviewof commissiondecisions 0 Commissionswith which mix functions ofthe differenttypes of commissionsnotedhere havedifficulty accomplishing any of them 93 Annex E. Summarv of Kev Provisions of the Land RevistrationLaw 1974 1. The Law's initial sub-sections explain that it applies throughout the Republic (8.1) and that its purpose "is to substitute as expeditiously and as relatively inexpensivelyas possible, with the highest regardto due process, for the present system of recordingrightsto and over land [the DeedRegistrySystemg2]a system of landregistration" (8.2). 2. These provisions preserve the special role of probate courts under the Deed Registry System (8.6). They make the Registrar of Deeds also the Registrar of Land (8.7.1), and the National Archives the location for the Registrar of Lands, as it is for the Registrar of Deeds (8.7.3). 3. Adjudicationof titles in a specifiedarea is declared by the Minister of Lands, Mines and Energy through the Probate Court of the area (8.1 1). A referee to decidedconflicting land claims and a DemarcatiodRecordingOfficer are appointed by the ChiefJustice, and a Survey Officer by the Minister(8.21). Where there are disputes which cannot be negotiated by the Demarcationand RecordingOfficer, these are referredto the Referee for decision, except that inheritance disputes go to the Circuit Court.Appeals may be taken from bothto the Supreme Court (8.51). 4. The law sets out the principlesbindinguponthe referee(8.52) indecidingon claims: a) Ifthere is a good documentary title which would prevailifchallenged, he records that persontentativelyas the owner of the parcel; b) Ifthere is open, peacefuland interruptedpossessionfor twenty years or more, the possessorshould be recordedtentativelyas owner (the possessormust not have acknowledgedthe title of any other and must have usedthe landto the exclusionof others); c) Ifthere is a possessorwho is unableto providesufficient proofto be registered as an owner, he can be tentatively recordedas owner subject to substantiation within six months. Ifno privaterightsare established, the landshouldbe recordedas public land. 5. It is important to note that a customary right is neither registrable, nor is its existence the basis for registrationof a common law right. Possession is, and possession is to some extent a surrogate for customary right. Suchpossessionwill in most cases have originatedin a right under customary law, but reference to the fact of possession rather than the customary right makes it clear that a common law or statutory tenure is to be registered. This aspect of the Law deserves review and possibly reconsideration in light of innovative approaches in a number of other African countries in recent years toward registeringcustomary rights. 6. There are two provisions in this Law that deal with local communities' rights under customary land tenure. These prescribe how tribal reserves and communal holdings should be shown on the register, as so provide insight intothe official thinking on their legalnature. 7. The first is a specific instruction in s. 8.52 (d) on registration of a tribal reserve or communal holding: "If such land is part of a Tribal Reserve or communal holding, he shall further recordthe fact that such public land is subject thereto and, if feasible, shall describe the boundaries of the reserve or communal holding and the name or names of the tribe or tribes entitled to Tribal Reserve rights or holdings therein." The land in these categories is assumed to 94 be public landand is to be registeredas such, subject to use rights involvedinthe tribal reserve or communal holding. 8. The second provision is s. 8.123, which providesthat "The registrationof land as public land, subject to any registeredencumbrances, which shall includewithout limitation, interests in and rights over such land granted in concession and other agreements made under authority of law, and by way of delineationof Tribal Reserveareas and communal holdings, shall enable such land to be disposed of in accordance with the provisionsrelatingthereto containedin the Public Lands Law and in any other law providing for dispositions of public lands, by a disposition registrableunder the provisionsof this chapter." Such land is thus to be registeredas public land, and the Communal Right or Tribal Reserve as an encumbrance on that public land. To the extent that the landcan be disposed of under the Public Lands Law and other laws (and these rights are not freely transactable), then once the land is registered, the transfer must be by registered transfer. 9. Registered rights are under this law (as under most land registration laws) are relatively conclusive.A registeredtitle can be set aside if fraud proved in action filed within ten years from final order for registrationfiled in the court where registrationproceedings were held. Where the right has been transferredto an innocentpurchaser for value without notice of the fraud, he will be protected, however (8. 58). Absent a fraud raised within that period, however, registration actually confers clear title: "Registration vests title and free of all encumbrances except those shown on the register and claims created by the operation of law...", and encumbrances or transfers that are requiredby law to be registereddo nottake effect until registered(8.121 (1) and (2)).93Registeredlandnot affectedby prescriptionor adversepossession(8.123). 10. Finally, the Government will indemnify anyone who relies on the information shown on the Register and suffers thereby. But there will be no indemnity for anyone who substantially contributedto the error or omission. (8.193). Compensation may not exceed prescribedamounts (8.194). Claims are made to a Permanent Claims Commission established under s. 56.1 of the ExecutiveLaw, which awards indemnity(8.95). 95 Annex F. SummarvofMLMEProposal: Jump-Startinp Land Administration,September 2006 The Summary "Brief Description" for the Proposalto the USAID Ambassador is as follows: 1, The projectwill initiate actions to actualize the President's inaugural call for a revisit of the Land Tenure System of Liberia, by jump-starting a Land Administration Reform Program throughaseries of quick-impactactivitiesaimedat: 0 Identifying through broad-based stakeholders' consultations, technical, administrative and legal interventions that are practically feasible, and socio- politically acceptable; andcan achieve immediate results; 0 Educatingthe public on the prevailing situation, its negative effect on national and personal econoinic recovery and development; as well as on its potentials as a catalyst for possible social conflicts; and building positive public opinion and consensuson the needfor landadministrationreform 0 Formulating and adopting a memorandum of understanding that commits all Agencies with land-relatedstatutory functions to cooperatingand collaboratingin a fight to eradicate corruption in landadministration; Formulating and promulgating joint administrative regulations (a) to improve administrative effectiveness (b) to arrest fraudulent land transactions - tempering with records of the Deed registry and/or the Bureau of Lands & Surveys, etc. (c) to ensure adherence to existing property and fiscal laws; (d) to ensure information sharing between Agencies with land-related statutory functions; and (e) to discouraged and eventually arrested through an agricultural land-use regulationthat providesfarmers with security of tenure through the allocation of definite parcels of landby government, with title Deeds; 0 Establishing a means through which the public will have easy and if necessary anonymous access to channeling information and tips on acts of land fraud and professionalmalpractices by surveyors, lawyers and government officials, as well as contributionsof solution suggestions; 0 Encouraging private individuals and institutions to make available to government Land Deeds, maps, and other valuable land information they may have; and providing the Department of Lands, Surveys & Cartography with a basic capacity to copy and preservesaid resourcematerials; 0 Drafting of an Executive Order for the establishment of a National Land Tenure Advisory Councilwhich will steer all landreforminterventions;and 0 Drafting and dissimilation of a Land Administration Reform Program identification Document, andterms of reference for PreparatoryTechnicalAssistances. 0 Conductingan In-ServiceTrainingWorkshop for LandAdministratorsand Surveyors of the Ministry of Lands, Mines& Energy. 2. The project will be coordinated by a local expert, to be selected jointly by all the implementing partners. The Project Coordinator will be attached to the Office of the Deputy Minister for Operations at the Ministry of Lands, Mines & Energy which will provide 96 administrative facilitation and backstopping. The heads of participating agencies will ensure Cabinet approvals where necessary. 3. The Ministryof Lands, Mines& Energy shall provide resource personnel, office facilities and all available land information. The US Ambassador to Liberia is requestedto source funding for this project to the extent possible and to assist in facilitating donor coordination. USAID/OTI, UNDP, EC and UN Habitat have also been approached for assistance for the overall Land Administration Reform Project. 97 Annex G. Memorandumof Understandinpon LandRepistration,October21,2006 There follows the main text of this memorandum of agreement, negotiated and agreed upon duringa conference organized by USAID's Office of Transition Initiativesin October 2006. The memorandum was signed by personnel of a number of key ministries and other government agencies including the Ministry of Land, Mines and Energy, the Governance Reform Commission, the Ministry of Justice, the Ministry of Public Works, the Ministry of Foreign Affairs, the Ministry of Finance, and the Ministry of InternalAffairs, and also one NGO (Green Advocates). The signature page and an annex consisting of a matrix expanding on the memorandumare notreproducedhere. 98 . i ' . I. . e----. _ - -l,d-' .___--- . I ----.-- ME~~O~~D~~-~DERSTANDING FOR THE CONCEPTUAL UNDERSTANDING OFTHE CHALLENGESTO LAND TITLEAND h X S T R A T I O N AND CORReSPONDlNG !&3SOLUTIONSTO SAID CHALLENGES OCTOBER21,2006 Preamble US&IOffice ofTransition Initiativesawardeda grant to the Ministryof Lands, Mines andEnergyto provide supportto the LiberiaGovernment on LandPolicy, and Theobjective ofthe project was to providethe GovernmentofLiberia with a review o f the existing landidentificationrecords andtaxationrecords inMonrovia and to provide guidanceon howto improvethe systems that effect identificationof landownership, and For which the review culminatedinatwo day workingsessionstructuredto gainthe inputofall stakeholders who haveresponsibilityfor andinfluence onthe issuanceoftitle and land ownership, and For whichthe working sessionprovidedthe foundationfor the following Memorandum ofUnderstanding. Introdsrctwn Inordertoguaranteelandrightswemustprovidesecurityoftenure.Giventhecurrent state of Liberia's land tenure system, we must agree to launchanational program to improveour land tenure system. We must recognize that securityof tenure includes certainmeasures and activities relatedto lmd, which we shoulddzfine before we . 2rcsz~d.Ihese activities include: A widely acceptednationallandpolicy; * A modein, up-to-date cadastralsystemandregister; A functional, efficient andeffectivelandassessmerit system; Legalrecognition of formal andinformal institutions for conflictresolution; Spatialdata inikastructure for surveying andmappinginfrastructure; Effictiveandqfficient recordmanagement; and * Creationofa systcinwhich is transparent, maallowscivil society to ~lcccsssaid system Objective Create a LandTenure Systemthat includespolicies, laws, regulations and guidelinesina nationalinstitutionalframework for the administration andmanagementof our sovereign lands. Just&kation of theProblem The purpose ofthe RegisteredLand Law is to substituteas expeditiouslyand as relatively inexpensively as possible, withthe highestregardfor dueprocess, for the present system ofrecordingrightsto and over land, asystem ofland registration(Section8.2,Amended property Lav of1974). Inpracticechallengesto land titleis definedas: 1) Lack of CoordinationbetweenMinistries. 1' Page 1of 3 ,,..._. . 99 - -- --- - - A E M O R A N D U M OF UNDERSTANDDVG- FOR THE CONCEPT'UALUNDERSTANDINGOFTHECHALLENGESTO LAND TITLEAND REGISTRATIONANDCORRESPONDINGRESOLUTIONSTO SAID CHALLENGES 0 ~ ~ 0 ~ ~ ~ 2 1 , 2 0 0 6 2) Lack o f transparency. 3) Lack o f information. 4) Lack o f coordinated adjudication system. 5) Lack of complete clear chain of title andland records. Thesechallenges are further elaborated inAttachment A. Reconurzrnded Solutions 1. Reviewthe mandate o fall lineministries andagenciesas it relates to landissues for possible interactions and inclusions. 2. Recognize the needfor and develop a clear landtransaction settlement process which is enhanced by acomputerized exchange system or a complete DataBank onLand. 3; Property owners should be educated on their rights o f ownership and on how to developtheir land. 4. Identify the stakeholdersthat are responsible for information dissemination as it relates to landownership. 5. Require that all deeds prior to probation must be examined by officials o fthe probate court andattestedto by at least 2 or more witnesses without prejudice. 6. Institute the title certificate system. 7. Adjudicate Title Certificates attachingall legalactions oftitle and landto the certificate. 8. Improve transparency. 9. Enact a law requiring a transparent legal and fiscal cadastral system. WayForward 1. Build the capacity of all land stakeholders. 2. Ensure the effectiveness o fthe deedsystem while fast tracking conversion to a title certificate system. 3. Acquire and allocatethe capital for the purchase o fa computerized system and modem survey equipment. 4. Build the capacity of humanresourcesto manage the above facilities 5. Build an institutionalframework to substantiatethe maintenance o ftitle 6. Improvedincentivesto promote accountability and transparency 7. Identify and implement actions that will resumethe adjudication system 8. Declare land information as publicand ensure unhindered public access to land information. The signatories below recognize the importhnce of andagree to call to action o fthe refonn o fthe landtenure registry system as articulatedinthis Memorandum o f Understanding. Page 2 o f 3 100 Annex H. ReDort of Workinn Grout)on LePal Issues, GRC Workshot),March 15,2007 ' Land Reform LegalissuesWorkgroup - LAND REFORMLEGAL ISSUES The Land Tenure Reform issue is a sensitive one in ail environments which take on the delicate task of equitable distributlon of real property resources. Liberia is no exception to that rule. While the issues Liberia faces are by no meansunique, Liberia'shistory does pose the possibility of unique approaches to land reform. Some of the general issues and approachesto consider Is the promotion of tenure security in rural areas In the form of titling of group or communal property as the solution to lack of long-term investment in property. Titling may put rural poor and illiterateat the mercyof rural elite (the very group who should be speaking on behalf of rural communities) as is reported to be happening currently. in short, what are the alternatives to titling? What are the pros and cons of titling? How does the land tenure system handle land as a social asset which may change to a commodity to be sold to the Monrovia-wise*sons of the soil"? On a broader basis, land tenure security, should be seen as necessaty for developmentand economic growth because removal of the uncertainty invites national and. internationdl investment. Tenure security does not necessarily mean a rural community can go to the bank-nct now anyway. But it can mean that communal land ends up in the hands of `sons of the soir as private property. Howeverthose unique spectfic issues are handled, the general issue on land reform begins with how landownership is originally establishedin Liberia and goes ail the way down to how land is managed and encumbered. The general issues will find a resolution in further review and amendment of the following instruments:the Constitution, national statutory laws related to land ownership, uses and management and the Rules and Regulations Governing the Hinterlands,et. ai. Most importantly, the reviewof those instruments raisethe following major legal issues vis-&vis land reform in Liberia as a first step in a way forward. Ultimately, the lend reform process needs to answer the salient question of: What kind of property rights system do we want for Liberia-to accommodatethe 3Cs with the `community C' including urbanlpera-urbancommunities? The Legal issues Working Group has identifiedthe following as some of the issues that need to be addressed: I.LandOwnership: Whoownstheiandlwhoshouldownland? Whoshoulddecideland ownership and propertyrightsin Liberia? s Who hasGovernmentasthe forest, land and naturalresources? valid daim to o holder of "title to sovereign territory of the Republicof Liberla" (HinterlandRulesand Regulations) o State as stewardof the land in the interest of the people (2006 forestry Law) o Clarificationof definitionof pubiioand private lands-how is communaUgroup ownership of land in Liberia determined? o Lack of an effective demarcation system to identify: community vs. tribal, publicvs. government o The peoplewho dependon these resources (evolvingconcept) o Anyone Whatlivesin Liberia-citizenor non-citizens? who mechanism or legal provision to accomplish the objective of barring non-citizens from land ownership? Prohibit straw transactions? Requireprinciples and straw comply with constitutional requirement? m The Citizenship requirement -is it outdated? Should we retain it? Given the current economic environment and long-term economic goals, does this requirement serve or hinder development of the economic infrastructure? Does this requirement preserve the possibility for greater economic participation amongst Liberians (Le. greater distribution of wealth amongst Liberians) or does il hinder development of regional and global economic participation? Does it hinder domestic developmentof economic systems? Does it prevent the retentionof incomefor the country? 101 'Land Reform LegalIssuesWofRgroup - Legalbasisof ownership under each of the following o Constitutional o Customary: sodel practices and norms o Statutory Law o Commonlaw o Internationalconventionsand agreements to whlch Llberla is party Klnds of landholdlngdtransfers o Inheritance: What is the effect of the amendment of the Inheritance Law? Are there further amendments required? Should and how can 'illegitimate' children inherit fmm their parents, If they are recognized (Le. in the case of intestate succession). Again, what are the intersections between customary and statutory law vis-B-VISinheritance. o Sale: Other than the cltizenshlp requlrement, should there be other restrictions imposed on to whom land can be sold? Other than a deed, property description, etc. what documentary requirements should be applied for the sale of land? o GR:What shouldbe the documentary requirementsfor gifting real properly? o Citizenship requirement: While non-citlrens cannot own proprty, are the long term leases (Le. 20 year lease restriction wl ability to renew for addltlonai 20 years) defacto ownership? If the citizenship requirement is preserved, should we revlsltthe long-term lease requirements? Should laws be put in placeto prohibit straw transadlons? Shouldthe leaseallotmentsbe shortened? o Landiordnenant: There needs to be an entire body of landlord-tenant law created. There are few regulations which set out each party's rights and obligations relative to property leases. Further there are few, if any, safeguards to protect either party In the event of wrong-doing by the other party. What are the Intersectionswith customary law and tenancy? How shouldthat be handled? o Mortgage: There needs to be a review of the entire mortgage system, vis-l- vis the financial and banking system in the country. How will this affect land ownership,transfers, gifting? Leaseholds? 2. customary and statutorylegal systems (explore legal pluralism) o Outline where there are intersections between the two systems. How do they contradict, overlapand coincide? (ownership, accessingrights, eligibility,etc) o Places which are now exclusively governed by customary law. should they be under statutory law review, or provided the option to move Into the statutory law system? Likewise, should there be matters whlch are exclusively governed by the statutory law system with some reviewby the customary law system? When and how shouldthis happen? o How do these ccntradictions, overlaps Impact land administration? How do they contribute to landconflicts and disputes? o Clariflcation of tenure systems underthe Customary and Statutory o Underwhat conditionsshould statutory codes and customaryrights apply? o Gender and property rightshenure underboth systems o How'tointegrate-to what extant can the two systems be integrated a. Nationalstatutory law recognitionof grouplcommunalownership o Mechanlsmfor conflictldispute resolutionwhen the two systems conflict 3. Land Management: Institutional framework for land tenurelproperty rlghts-who should managethe land? .' o What short4erm solutions to resolve the back log of existing land disputes in both mral and urban areas. Should there be a spedal civil court created to resolve real property issues? On a long and/or short term basis? o Adequackslinadequaclesof current management framework 102 'Land Reform LegalIssuesWorkgroup - 9 Which Institutions should manage the sale, use, encumbrance of publicand private lands? 1 How should roles amongst and between land management institutionsbe shared? 9 What capacltles are needed to effectively manage the land tenure system? o Decentralizationas a policy-role of government and role of localpeoples o Capacltybuildingfor effective decentralization o TribaVcommunal lands: What mechanisms should be established for localltraditional authorities to regulate and administer lands? Should the MIA solely govern the attribution of these lands? Should national statutory law supersede customary law when it comes to these matters? As Customary Law provides for variation in how landtenure Is treated, if the Customary Law system continues,then shouldthere be a review to attempt to achleve consistency of processes and resuits regardlessof the ethnic group? o Taxatlon: Should we revisitand reviewthe systemof real property taxation? o ReglstratlonandHowTitle do we track and capture the improper transfers of titles which have and continue to occur? What mechanisms need to be put in piace to determine ownership and what now to do with those who have invested in improperly acquired titles (should there be a knowingor should have known standard in maklng the dispositionof * those cases?) As title is transferred, what are the current flaws in the reglstratlon and title system? Should a new system be created and if so, then what? ShouldIt be centrallzed? Decentralized inthe counties? * What -are the modffications which prevent or have Impose . unnecessary barriersto effectivetransfer of tile and registration(Le. what to do with illiteratetitie holders)? What modifications to the processes need to be put in place to improvethe title tracingprocess(Le. to establisheffectivetitle)? 9 What corruption in the process exlsts? What modifications need to be impiementedinthe system to curb such corruption? To echo discussion at the workshop on land use planning held in March 2005, the policyand legal framework for the equitable use and management of land and natural resources in Liberia should: ensure conservation of biodiversky and rare ecosystems and their environmental SeNiceS promotesustainable management of land resources * providefor development of agriculture, agro foresw as well as minlng recognize community/common ownership of and access to and managementof land and resources to support rural lifestyle,livelihoodand cultures providefor conflict resolutionmechanism(9) for usesand usersof land provide for a transparent planning processthat involves all sectors of the Liberian population. REOURCES .)Research,whichmayinvolvepiloting,isrequiredonalloftheissueslister) +Accessing information, data-collecting,storingand retrievingfor decisionmaking is a major issue to be addressed in the process. Land tenure and property rights information we are searching for, if available at all, are fragmented, spread out across various sectors (formal 103 Land Reform-Legal IssuesWorkgroup and non-formal) and levels of government, may be unrellable, may reflect differences in the conceptsand policiesof socialactors, etc. + Until all of the Forest sector informatlonldata collected under the Liberia Forest Reassessment Pproject (LFRI), the Liberia Forest Initiative (LFI) end current studies and results of formal documentary search have been compiled, there Is no way of knowing what documentary r e s w m Is stlll outstanding FINANCIAL + The Government of Llberia must show ita commitment by budgeting for the process. However, given the resources needs for land use reform lnitiatlve, partners will have to be invited,encouraged to assist with funding and expertise while being sensitive to the need for Llberla to have ownershlp of the process. What Is the appropriate role of the International community Inthe process? Resultof Research List of some of the data categories relevant to Landtenurelland rights reform . -- Legalframework: Laws, decrees, acts, regulations, etc Policies(formally statedfrom practice) Landtitles, deeds, administrative certificates(TribalCeMcates?) - 1 Dccumentationof clalmedbut unregisteredlandssuch as community lands * Landsale agreements Maps Taxrecords 8 Result of disputes:statutory and customary resolutions Informationvalidatinginformallandtransactbnsand disputes Concessions contracts and agreements Workshop Reports: Landuseltenure securlty/property rlghts Farmlagriculturelanddocuments lnventorles . Minutesof land use relatedmeetings, Correspondence that maycontain informationon land Issues Sectoral Annual reports Omcial speeches setting policy directlon Lessons leamedfrom other countries Ail documents unearthed by the Legal IssuesWorking Group so far, fit into one or more the categories above 104 Annex I. Land Policy and Tenure in Liberia's Poverty ReductionStrategy pp. 67-60: 7.5 Land and Environmental Policy 1. Poverty, land, and the environment are inextricably linked. The rural poor o f Liberia depend almost entirely upon land and other natural resources for their livelihoods, including their food, fuel, shelter, water and medicines. Unequal access to and ownership o f land and other resources have contributed significantly to economic and political inequities throughout Liberia's history, and have exacerbated tensions and conflict. The existing systems o f land acquisition favor the wealthy and the elite. Women in particular have had limited land and resource rights. Poverty and the paucity o f technical skills leave most Liberians with limited options and few incentives to protect the natural resource base, and make coping with and adapting to environmental changes more difficult. These issues may become even more difficult in the near future as global warming changes climatic patterns, which may affect coastal flooding and rainfall. 2. Access to land and its resources and security o f tenure are essential for economic revitalization, growth, and poverty reduction. Smallholder farmers, who make up the majority o f Liberia's rural population, require access and security o f tenure to move beyond subsistence farming into more profitable and sustainable livelihoods that will achieve food security and increased export crop production. Commercial users o f land and its resources also need security o f tenure for investments. Establishing a working system to promote the reconciliation o f land disputes during the PRS period, and which can also improve public perceptions about mechanisms and the Government's capacity for dealing with land conflicts, will have a significant impact on promoting private sector participation in the economy and the overall stabilization o f Liberia. 3. In Liberia, the main engines o f growth for the next several years are natural resource- based activities - principally mining, timber production, and rubber and other plantations. None o f these activities can expand without affecting the resources upon which the rural poor depend. Moreover, new investment in almost any area depends crucially on clear property rights. In addition, the limitations on who can own land in Liberia and the uncertainty about land titling both add to the costs and risks o f investments in a wide range o f activities, and create prohibitive barriers to investment in some cases. 4. Land policy is one o fthe most sensitive and important policies for Liberia in the quest for rapid, inclusive and sustainable growth, and for consolidating peace and security. The challenges, however, are many and complex. There i s no comprehensive national policy or strategy on land allocation and use, whether for private users, community, concessions, or Government. Laws pertaining to land are outdated and do not serve the country's development goals. In the past, concession agreements have had inconsistent provisions, often providing land areas significantly in excess o f what can reason-ably be developed, while local communities have experienced significant land pressure. Current provisions for the access to land and security o f tenure by communities under customary tenure are inadequate. Residents feel that their livelihoods and security are threatened by current laws and practices, and those subject to customary law do not have equal protectionas provided by the 1986 Constitution. 5. The judicial system is over-burdened and without sufficient capacity to adjudicate land matters in a timely manner and as a result, fraud is common and entrenched. Moreover, the administration and management o f land is inadequate and outdated. Land records are in disarray, 105 are located in several places, and are open to tampering and fraud. There are overlapping or conflicting functions ofminis-triesandagencies, andcapacity is extremelylimited. 6. The Government's primary goal with respect to land is to develop a comprehensive nationallandtenure and landuse system that will provide equitable access to landand security of tenure so as to facilitate inclusiveand sustainable growth and development, and ensure peace and security. 7. To achieve this goal, the Government's strategic objectivesandpriority actions include: 0 Promotingequitable and productive access to the nation's land, both public and private, especially for the poor, women, and other marginalized groups. The Government will review and reform land policy and law, and develop comprehensive nationallanduse surveyingandmapping. 0 Promotingsecurity of landtenure and the rule of law with respect to landholding and dealings in land. The Government will review customary land tenure and existing local government institutions, and will recognize and protect rights of use and ownership of land and other resources by local communities. It will undertake an adjudication process to determine current claims to land, review mechanisms for land dispute resolution under statutory and customary law and propose, if appropriate, alternative dispute resolution mechanisms, and develop procedures for equitable and fair enforcement of laws pertaining to land and other property. The Government will also review the process of issuing public landsale deeds by the Office ofthe President. 0 Promotingeffective land administration and management. The Government will secure and con-serve deeds and other records related to rights in land. It will clarify the rolesof, and build the capacity within, the Ministry of Lands, Mines & Energy(specifically the surveys unit), the Ministry of Agriculture, and the Forest DevelopmentAuthority. By building capacity, it expects to be able to undertake a land cadastre in coming years to determine claims to land. However, during the PRS period, the Government will pilot a landregistrationsystem. 0 Promoting investment in and development of the nation's land resources. The Government will review and revise laws pertaining to land and real estate taxation, with the view to discouraginglarge undevelopedland holdings. Policies and programs will also be developed that enable small-holdersto move to more profitable and sustainable livelihoods,and develop nationalzoningregulations. 8. Because of the critical nature of land in Liberia, the Government will address the issue in a comprehensive manner by establishingaLandCommission. The Land Commissionwill further identify, guide, and facilitate reforms in land policy, law, and programs. It will aim to facilitate landtenure arrangements that are conducive to sound land use and appropriate farming, forestry, and mining systems that are supportive of inclusive growth and sustainable natural resource management. It will help devise means that balance competingdemands on land use, e.g., forest versus farm land, agrarian structure (smallholdersversus plantations), and agriculturalproduction (food crops versus export crops). The Governance Commission is working to help establish the Commissionby July 2008. 106 9. To address issues of climate change and the adverse effects o f a changing environment, the Government will also consider revitalizing the National Disaster Relief Commission and its secretariat to educate the public about disaster risk reduction and to coordinate the Government's response to disasters when they do occur. In addition, the Government will endeavor to develop an integrated coastal zone management plan, a wetlands management policy and a water resources management plan to govern the use of, and interaction with, these valuable natural resources. 107 P. 79: PRSPriorityAction Matrix Land and EnvironmentalPolicy - Goal: To developa comprehensive nationallandtenure and land usesystem that will provideequitable accessto land and security oftenure so as to facilitate inclusive, sustained growth and development,ensure peaceand security, and providesustainable management of the environment. Strategic objective 1: To establishthe Land Commissionand enable it to address its mandate GCY The nonexistent and/or Establisha LandCommission Legislature, inadequate landpoliciesand laws by legislativeenactment and July 2008 President requirecomprehensive review by secure fundingto address land a LandCommission. issues Appoint andorient September GCY Commissioners andthe 2008 President Commission's Technical Secretariat Support the Commission's 2008 - LC work in conductingstudies and 2011 consultations pertinentto its mandate Strategic objective2: To promoteequitable and productive access and security of tenure to the nation's land, both publicand private, especially for the poor,women, and other marginalizedgroups, and to promotethe rule of law with respectto landholdingand dealingsin land Inequitiesexist inaccess and Reviewand reformpublic land 2011 LC utilizationof land, favoringthe policy andpropertylaws to wealthy andelites. Outdated and develop comprehensiveand inadequate laws do not serve the coherent policy and legal country's development goals. frameworkandto remove or Disputesare common and are not revise outdated or outmoded beingequitablyresolved. provisions Conduct a comprehensive 2011 LC, MLME, national landuse survey and MOA,FDA mappingto identify current and future utilization of land Reviewcustomary landtenure 2011 LC, MIA and existing local government institutionsto identify best options for equitable and effectivemanagementof land and other natural resources 108 Recognize and protect rights of 2011 L C use and ownership of land and other resourcesby local communities Review mechanismsfor land 2011 LC, MoJ dispute resolution under statutory and customary law and propose alternatives Develop proceduresfor 2011 equitable and fair enforcement LC, MoJ of laws pertaining to land and other property to minimize fraud and other illegal practices pertaining to land Strategic objective 3: To promoteeffective land administrationand management Outmoded systems of land Secure and conserve deeds and 2009 LC, administration and management land records at one location CNDRA, encourage-age fraudulent under the supervision o f MFA, EM behavior. Capacity inthe trained staff ministries and agencies is limited. Develop and implement 2009 LC, CNDRA records management system at the national and local level so that land records are available to verify claims and expedite land transactions Clarify roles, build capacity 2010 LC, MLME, and equip the staff of MLME MOA,FDA, (especially the survey unit), UL MOAand FDA Pilot a land registration system 2011 LC, MLME, inan area outside central CNDRA Monrovia that is primarily held under fee simple Strategic objective 4: To promoteinvestmentinand developmentof the nation's land resources Polices to promote investment Review and/or develop 2010 LC, MoF, and development are nonexistent policies on agricultural, FDA, or inadequate.Taxation and forestry, and mining MLME, zoning rules are inadequate concessions, including MOA and/or outdated. activities, provision of ser- vices, taxation, etc. 109 Develop land policies and 2009 LC, MLME, programs to provide security MOA,FDA of tenure and to enhance access inorder for smallholders to move to more profitable and sustainable livelihoods Develop and implement 2009 LC, MPW, national zoning regulations and MoF landtaxation regulations that support and facilitate national development objectives 110 ENDNOTES wb19523 L:\Liberialand study Revised Final 8 25 08.doc 08/28/2008 12:45:00 PM ' Adverse possession is occurs when the land is occupied inan uncontestedmanner for 20 years. After this, the occupant (squatter, or otherwise) gains legal ownershipof the property. * Fee simple was the tenure that prevailed inEnglandonce reforms during the 18" and 19" centuries had strippedaway the many conditions imposedby feudal law. Under fee simple, the landholder and "his heirs and assigns forever" holdthe land inperpetuity. This is sometimes referredto as "free simple absolute" to distinguish it from fees simples subjectto conditions or other limitations, but the use of the term "fee simple" alone denotes a fee simple absolute. Of course no estate inland is absolute, becausethe state retainssome privileges (for example,the power to expropriate landfor public purposes subjectto compensation), and becauseeven full private ownership is subjectto awide variety of public regulatory measures, from taxation to zoning to public easements. For a scholarly discussionof whether there is a significant difference between"fee simple" and "ownership" inthe African context, see Anthony N.Allot, and S.R. Simpson, "Towards a Definition of Absolute Ownership, Iand 11", Journalof African Law 5 (1961): 99-102 and 145-150. The key case is Ballah Karman v. John L.Morris, Secretary ofthe Interior, and Major John H.Anderson, Commandingthe LiberiaDefense Force, decidedby the Liberian Supreme Court on May 2, 1920. It cites the key American case of Graham's Lessee v. Wm. MacIntosh, US Supreme Court Reports, 1823: 574. The Karman case is reproducedinfull inHuberich (1947:1210-1211) and discussed inWiley (2007) at 77- 8 1. Typically, under international law, conquest confers sovereigntybut does not nullify existing property rights. On the other hand, other colonial powers inAfrica -especially insettler colonies-similarly ignored customary land rights and declared large areas of conquered landto be public or inthe case of Britain, "Crown" lands. `Colombia: LandPolicy in Transition.World Bank Report 5 The word "youth"in this context does not mean adolescents or young adults as it does inthe European sense. It generally refers to anyone from 21- 45 years oldwho i s not in the category of the "old". Ministry of Land, Minesand Energy, "One Hundred and Fifty (150) Day Action Plan: Enhancing Government's EffectivenessinManaging the Land, Mineral and Energy Sectors" (MLME, Monrovia: March 1, 2006). The sectiononthe landsector is included inthis report as Annex F. 7 Footnote from the original text: "The Tolbert Administration earmarkedand some cases expropriated parcelsof land for the construction of public building and other government uses; but documents to that effect are unavailableand squatters, with the help of municipal officials have encroachedupon said lands." * The 1974 law was an Act to Amend the Property Law to provideaNew Systemfor Registration of Land and Dealings inLand. However, this amended law did not affect acquisitionof public lands which are still governed underthe 1956 land law. These were indigenous Africans who were educated, wore westerndress, andwere school teachers, clerks and minor officials. IoKonneh, Augustine.Citizenshipat the Margins, Status, Ambiguity andthe Mandingoof Liberia. African Studies Review, Vol 30, NO.2 pp 141-154 11 Richard, P., Archibald, S., Bruce, B., Modad, W., Mulbah, E., Varpilah, T and Vincent, J. January, 2005. CommunityCohesion in Liberia. A Post-WarRapidSocialAssessment, Social DevelopmentPapers. No. 21 Richards,2005. To fight or to Farm?Agrarian dimensions of the ManoRiver Conflicts (Liberia and SierraLeone).Affrican Affairs 104(417):571-590. l3 It had however produced"A Preliminary Report ofthe Ad Hoc PresidentialCommission on the LandProperty Dispute inNimba County", October 2006. That report notes the 80% of structures inGanta have beendestroyed, andthat this acerbatesthe conflict. Information received from an official familiar with the work ofthe Commissionnotesthat a significant rebuilding program will be requiredifasolution is to be found, and the Governmentmay be approachingthe donor community for assistance inmounting such a rogram. p4 Trial by ordeal inLiberia involves (among several approaches) use of poisonousplant materials applied to an individual invarious ways with the result indicating innocenceor guilt. As well the prohibitions against renters or `borrowers' of land acting to apply improvementsto land, and specifically prohibitions against tree crop planting, is explicit. To a degree, this can act as a disincentive to allow `strangers' onto 111 customary land for rental or loaning inthe first place. The result i s that land goes uncultivated, strangers are without land, and food security is not what it could be. I SThe figure andbullets below are drawnfrom John W. Bruce et al., 2007. Land andBusiness Formalizaion for the Legal Empowermentofthe Poor. StrategicOverview Paper. (Burlington VT: ARD for USAID). I6 Klaus Deininger., 2003. Land Policies for Growth and Poverty Reduction. World Bank Policy ResearchReport (World Bank & Oxford University Press). I7 Norwegian ReliefCouncil, 2007. NRC Liberia. (Monrovia, NRC): p. 6. The program concernedis NRC's Information Legal Assistance and CounselingProgram. International Crisis Group, 2006. Liberia: Resurrectingthe Justice System, Africa ReportNo. 107, 6 April 2006, paint adire picture ofthe situation inLiberia's courts. l9 This paper i s one of those preparedfor aGRC Data Reconciliation Workshop on Land and Property Rights inLiberia on May 25,2007, with eachofthe sub-committeesofthe GRC Working Group on Land presentingapreliminary paper, inthe natureof issue identification papers. 2o Fee simple was the tenure that prevailed inEngland once reforms during the 18" and 19' centuries had strippedaway the many conditions imposedby feudal law. Under fee simple, the landholder and "his heirs and assigns forever" holdthe land inperpetuity. This is sometimes referred to as "free simple absolute" to distinguish it from fees simples subject to conditions or other limitations, but the use ofthe term "fee simple" alone denotes a fee simple absolute. O f course no estate in land is absolute, becausethe state retains some privileges (for example, the right of escheaton failure of heirs, and the power to expropriate landfor public purposes subjectto compensation), and becauseeven full private ownership is subjectto a wide variety ofpublic regulatory measures,from taxation to zoning to public easements. For a scholarly discussionof whether there is a significant difference between"fee simple" and "ownership" inthe African context, see Anthony N.Allot, and S.R. Simpson, "Towards a Definitionof Absolute Ownership, Iand II", Journalof African Law 5 (1961): 99-102 and 145-150. 21 It is not clear to the consultant upon what theory or when land inthe hinterland came to be considered public property. Typically, under international law, conquest confers sovereigntybut does not nullify existing property rights. On the other hand, other colonial powers in Africa - especiallyinsettler colonies- similarly ignored customary landrights and declaredlarge areas of conqueredlandto be public or inthe case of Britain, "Crown" lands. One possible source is the odd provision ofthe Hinterlands Law of 1949, or aprior enactment that it replaced. See the discussion in Section3.2 below. 22 The current Constitution, promulgatedin 1986, provides inArticle 65 that "The courts shall apply both statutoryand customary law in accordancewith the standards enactedby the Legislature." While the common law is not referredto here, it appliesby virtue of statute and so is in a sense "statutory law". 23 Unless the contrary i s specifically indicated, all citations to statutes in this report are to them as they appear inthe Liberian Code Revised, 1973, six volumes published on various dates through 1976.There was an earlier compilation published in 1958, and a subsequent publication in2001, but this appearsto be a reproduction ofthe 1973 version, usingthe same typeface. 24 The full title ofthis decree is "A Decreeto Provide for the Licensing and Registrationof Land Surveyors and for the Control and Regulation of Surveys and Survey Methods and for the Protectionof Survey Monuments, Markers, Beacons, and other ReferenceAppurtenanceswithin the Republic of Liberia". A December29,2006 memo from the Deputy Minister for Operations of the Ministry of Lands, Mines and Energy appendedto a copy of this law reminds staff that the Ministry is mandatedto enforcethis law, and mentions aregulation being drafted for the implementation of the law. The study team did not see a copy of this regulation, and it is not clear ifit has beenpromulgated. 25 There are prices specified inthe law. Section31specifies that "Except marshy, rocky, or barren land, which may be sold to the highest bidder, public land shall be sold at the following prices: Land lying on the margin of a river . . One dollar per acre Land lying inthe interior . . . . . . . . . . Fifty cents per acre Town lots . . . . . . . . . . . . . . . . . . . . . . . Thirty dollars per lot. , A Lands Commissionertakes a fee of 5% on eachpublic land sale he carries out (s. 32). These prices have beenrenderedirrelevant by inflation, and the consultant found that higher prices were being chargedbut was unableto identify the legal instrumentauthorizing them. InBomi County, the consultant was told that 112 the RevenueOffice as charging$400 for alot (1/4 acre) oftown landand $200/acreplus two years taxation for rural land. One transactionwas cited inwhich $6,817.50 was paid for 27.27 acres ofrural land. 26 For example, see Armah Kamaraand Henry Kollie, Appelants, v. BinduKindi, TerniKindi et al, Heirs of the late KahnKindi, appelees, Liberian Law Reports 34: 732. There the Supreme Court struggledwith wording from a 1916 aboriginal deedto achief inMontserradoCounty. The deed first indicated that the grant was "To FahnKendehand Families of KendahTown" but later inthe document it was provided that the grant was to "Chief FahnKendehand families as aforesaid, hisheirs, executors andassigns forever". The Court, placing the emphasis on the use ofthe word "his" rather than"their" to characterizethe "heirs", reachedthe conclusionthat the land hadbeengranted infee simple to FahnKendehand his lineal heirs only, denying the claims of descendents of other families of KendahTown. A dissent makes a very good case for the opposite conclusion. 27 The consultantwas asked inhis field visits whether the Presidenthas suspendedsuch land sales, as the local land commissionersnotedthat approvalsdid not seem to be forthcoming. A moratorium on these sales is worth considering. '*IFC Model ConcessionFramework Project (Oil Palm and Rubber), StakeholderConsultation workshop, "Future Deirectonsfor Agricultural Concessions: The Framework for Oil Palm and Rubber", Krystal Oceanview Hotel, Monrovia, May 13,2008. 29 See Tanner 2004. 30 The most recent affirmation ofthe vitality of customary law comes from Liz Alden Wiley, An Interim Commenton Customary Land Tenure inPost-Conflict Liberia. (Monrovia, SustainableDevelopment Institute, April 6 2007). 3 1Section 1ofthe Local GovernmentLaw provides: "The territory ofthe Republic shall be divided for the purposeof administration into the County Area and Hinterland. The County Area shall include all territory extendingflom the seaboard forty miles inland and from the Mano to the Cavalla Rivers. The Hinterland shall commence at the eastern boundaryofthe County Area; Le., forty miles inland and extend eastwardas far as the recognizedlimit ofthe Republic. It shall be boundedon the north by Sierra Leone, and on the southby the Ivory Coast. The Ministerof Internal Affairs shall be the chiefofficer of the local governments ofboth the County Area and the Hinterland. He shall have power to make from time to time such regulationsas are conducive to their successful government, subjectto the approval of the President." 32 Anthony N.Allot, "A Report on the Feasibility of Research into Liberian CustomaryLaw", Liberian Law Journal3(2) (December 1967) 83, notes that "...there have beenpractically no investigation by trained anthropologistsor suitably trained lawyers into the indigenouscustomary laws ofthe country" andthat ",,.basic sociological studies of Liberianethnic groups are also generally lacking -- withone or two notable exceptions(e.g., the work of Gibbs and Gay on the Kpelle and d'Azavedo on the Gola" (p. 83). The cited works are from the 1960s, and while they may be valuable as background, they shouldnot be assumedto accurately reflect current custom. 33 Personalcommunication from Counselor Philip Banks, then legal advisor to the GC. Most of the provisions concerninglandwere taken from and still exist inthe Hinterlands Rules and Regulations, but one potentially important provision appearsto have been lost as aresult of that implied repeal. Section370 of the Aborigines Law provided that "All aborigines residing inthe Republic of Liberia shall have full protection for their personsand property, and shall enjoy all the rights, privileges and immunitiesgrantedto all citizens ofthe Republic." There is no parallel provision inthe Hinterland Regulations.Wiley (2007, 120) also notes that the Aborigines Law inits Section270 replacedwording inthe Hinterlands Law of 1949that impliedownershipof tribal lands with wording that only implied a right ofpossession and use of those lands Which document is currently in force thus has serious implications. It is an issue that should , be resolvedby new legislation. . 34 The relevantprovision ofthe Executive Law is Section 10.5 dealingwith the regulatory power ofheads of ministries or other agencies. It provides: "The headof each ministry or independentagency inthe Executive Branch is authorized, subjectto the approval ofthe President,to prescriberegulations not inconsistent with the law of the operation of the ministry or agency, the accomplishmentof its lawful functions, the official conduct of its officers and employees, and the distribution andperformanceo f its business." " 1949HinterlandLawsandRegulationsprovidetothiseffect,andthatprovisionisreproducedin The the later republicationsof the regulations. It specifies inSection2 that "The provisions ofthe Laws and 113 wholly inhabited by uncivilizednatives`inthe same manner as ifthose areas were within the Hinterland Regulationshereby approvedand enacted shall apply within the organized Counties, to such areas as are Districts." 36 This gap inthe text exists inboththe 2000 and 2001 versions and appearsto be atypo. Inthe 1949 version, the sentence reads: "The right and title of the respectivetribes to land of an adequate area for farming and other enterprises essentialto the necessities ofthe tribe remain inherent inthe tribe to be utilizedby them for these purposes...". 37 The 1949version wording is "perfect usufruct" rather than "perfect reserve". 38 "Notes and bonds" is amistyping of "metes and bounds" inthe 1949 original. 39 The impliedly repealedAborigines Law in Section270 included this provision but had an additional provision for the deposit of such survey documents inthe Archives ofthe Departmentof State. 40 Karpai, et al, v. Sarfloh, et al, 26 LLR 3, 5-7 (1977), heldthat where a grant i s a communal holding, surveyedat the expense ofthe tribe, and that holding is vested inmembersofthe tribal authority, as trustees for the tribe, the tract of land cannot be sold, transferred or alienatedwithout the consent ofthe Government of Liberia. The case report is conhsing, as Article 66(d) flatly prohibits the Trustees from sellingsuchland, with or without government consent. 41 Wiley (2007) 42 A classic on the courts development and incorporation into the common law of the customaryconcept of "family land" is Anthony N.Allot, "Family Property inWest Africa: Its Juristic Basis, Control and Enjoyment" inJ.N.D. Anderson (ed.) Family Law in Asia and Africa (London: Butterworths, 1968, at pp. 121-142.Inother commonlawjurisdictions, there are often well developedanalyses ofthe case law relating to real property. InGhana, for example, see Gordon Woodman, Customary Land Law inthe Ghanaian Courts (Accra: Ghana Universities Press, 1996) and Daniel Kofi Opoku-Akyeampong. Casebook: The Acquisition, Sale and Rental of Property in Ghana. (Accra: Safeway Press, 1999). 43 Allot (1967): 83. 44 Manney v. Money, 2 LLR 618 (1927) Harmon v. Tempo, 15 LLR 272 (1963), and Watson v. Ware, 10 LLR 158 (1977). "Karpahv.Manning,5LLR162(1936), andJartuv.EstateofKoneh,10LLR318(1950). 46 Land Committee, GovernanceReform Commission, 2007. "The Way Forward: Land and Property Right Issues inthe Republic of Liberia". Draft, March 15,2007 (Monrovia: GovernanceReform Commission). 47 Unavailable for this report. 48 Such figures needto be usedvery cautiously, as the source acknowledges.Anna Knox, "Liberia Country Profile", at pp. 83-87 of John W. Bruce et al. (eds.), African Land Tenure Country Profiles (Madison, WI. Land Tenure Center, University of Wisconsin-Madison, 1996). The consultant found no credible source of data on land distribution, old or new. Such figures are sometimes repeatedover and over inreportsuntil they are treated with more confidencethan they deserves. 49 Klaus Deininger 2003. Land Policies for Growth and Poverty Reduction. World Bank Policy ResearchReport (World Bank & OxfordUniversity Press). 50 See Daniel Fitzpatrick, 2005. "`Best Practice' Options for the Legal Recognition of CustomaryTenure", Development and Change 36(4): 449-475, and IIED2006, Innovation in SecuringLand Rights in Africa: Lessons from Experience.An IIED BriefingPaper (London: IIED).Decentralization of land administration directly raises these issues ofthe role of customary law andtraditional authorities. See Liz Alden Wiley, 2003. A Review of Decentralization of Land Administration and ManagementinAfrica. (London: IIED). 5 1West African examples have already beenreferencedearlier inthis paper, but for a lucid account of the use of customto build anational common law, see Zaki Mutafa, The Common Law ofthe Sudan; An Account ofthe `Justice, Equity and Good Conscience Provision. (Oxford: ClarendonPress, 1971). s2 What is needed, it is suggested, are studies that can identify current change-patternsin custom and help us understandcontemporary custom, ratherthan codification, which robs custom of its dynamism and capacity to evolve. 53 See Lavigne Delville, Philippe. 2004. Registeringand Administering Customary Land Rights: Current Innovationsand QuestionsinFrench-SpeakingWest Africa. Communication to the Expert MeetingGroup on Secure Land Tenure: New LegalFrameworksand Tools, organizedby FIG Commission 7, Nairobi, 10- 12November2004. 114 54 See Julian Quan, 2000. "Land Boards as aMechanismfor the Managementof Land Rights in Southern Africa" inC. Toulmin andJ. Quan (eds.) EvolvingLand Rights: Policy and Tenure in Afiica, pp, 197-205. London: DFID/IIED/NRI. 55 Ghana is currently experimentingwith Customary Land Secretariats assistingtraditional authorities, an initiative supportedby DFIDunder the multi-donor LandAdministration Project. 56 International Crisis Group, Liberia: Resurrectingthe Justice System, Africa ReportNo. 107, 6 April 2006, p.10. ''Theonly contemporaryaccount of the system of landrights recording in Liberiathat came to the consultant's attention is Koboi Johnson, "Property Law of Liberia, Specifically an Act to Amend the PropertyLaw to Provide for aNew System for Registration of Landand for Dealing in Land So Registered", a paper presentedto a RealEstateRegistration and Real PropertyTax Practicum, Workshop Organizedby USAIDILTI and the Ministry of Land, Minesand Energy, October 20-21,2006. It is a quite useful summary of the RegisteredLand Law of 1974.This workshop was heldunder the auspices of the USAID's Office of Transitional Initiatives, by the USAID contractor LTI. There is another briefpaper, apparentlypreparedby the USAID contractor, LTI, though that is not clearly indicated onthe document: "An Investigation ofthe Real Estate Registrationand Property Tax System inLiberia for USAID/OTI and the Ministry of Lands, Minesand Energy" (Monrovia, October 2006). It appearsto be an attemptto summarizethe results of the workshop. Finally, the MLME provided the consultant with a copy of a "Memorandum of Understanding" amongconcernedinstitutions, developedout ofthat workshop at dated October 21,2006. It is discussedlater inthis section. 58 This is the latest iteration of a series of laws dealing with deed registration, beginning inthe earliest days ofthe colony. The earliest appearsto be aPlan of Civil Governmentenacted in 1827. For areview ofthe law inthis area see KwamenaBensti-Enchill and GerADR H.Zarr, "The Assurance of Land Titles and TransactionsinLiberia", Liberian Law Journal 2 (1966): 94-121. The article still accuratelyreflects the situation regarding deeds registration; its arguments for atitle (land) registration system prevailed with the enactment ofthe 1974 Land Registration Law. 59 Section6 provides that "If any personshall fail to have any instrument affecting or relating to real estate probatedand registeredas provided inthis Chapter within four months of its execution, his title to suchreal property shall be void as against any party holding a subsequent instrumentaffecting or relatingto such property, which is duly probatedandregistered." 6o The full text of Section20.58 reads: "The Presidentwith the advice and consent ofthe Senate shall appoint for eachcounty a Registrarof Deeds who shall serve underthe immediatedirection and supervision ofthe Director. A Registrarof Deeds shall perform the following duties: (a) Recordinthe manner prescribedby the Property Law chattel mortgagesand ail instruments, including government grants and patents, relating to the title of real property situatedinthe county for which he is appointed; (b) Recordall other instrumentsunder seal such as assignments for the benefit of creditors, bills of sale, partnership deeds, articles of incorporation, and other documents which the partiesconcernedmay desire to have recordedor which are required by statute to be registeredinthe office ofthe Registrar; (c) Countersignand endorse in accordancewith the Public Lands Law deeds for public lands in his county which are sold or which are allotted to immigrants; (d) Receivefrom the clerks ofthe Circuit and ProbateCourts papers of record relating to realty and register and file them inalphabeticalorder so that they may at all times be insafe keeping inhis office and accessibleto persons desiring examinethem; (e) On application of interestedpersons, furnish certified copies of instrumentsor public documents held in his custody; and (0Furnishthe Director with regularquarterlyreportsaccompaniedby charts showing alltransfer ofreal estate inthe county." 61Bentsi-Enchill and Zarr in 1996made acase for Liberia to switch to atitle (land) registration system. The article cites anumber of government reports recognizing the existing system of DeedRegistration as "admittedly inadequateand defective" and notes that the Attorney-General of Liberia on two occasions between 1958 and 1961recommendedadoptionof atitle (land) registration system (pp. 95,99). 115 It canbe arguedthat this is not technicallya requirementfor a title (land) registrationsystem, as it does not exist inAustralia, where the system originated.But it is invariable a characteristic ofthe system when introducedintodevelopingcountries, and is seen as a major attractionofthe system. 63 The Bankhada number of urbandevelopmentprojectswith landregistrationcomponentsinthe 1970s, includingthis project andGhanaUrban11.Those landregistrationcomponents facedmajor implementation problems.A free-standingproject, focusedon landregistrationandprovidingvery intensivetechnical support inthe early stages, is neededto make a successof such initiatives.A valuableresourcefor possible h t u r e piloting,the Manualpreparedfor the earlier systematicadjudicationandregistrationpilots, i s still available inLandsand Surveys. 64 Mr.JonathanMongar,the ChiefDemarcationOfficer,was involvedinthis work andknows the extentto which the adjudicationrecordsandmaps havebeenconservedor lost. 65 WorldBank, OperationsEvaluationDepartment,ProjectPerformanceAudit Report, LiberiaUrban DevelopmentProject(Credit 1223-LBR),June 23, 1989. 66 MinistryofLand, MinesandEnergy, "One HundredandFifty (150) DayActionPlan:Enhancing Government'sEffectivenessin Managingthe Land, MineralandEnergy Sectors" (MLME, Monrovia: March 1,2006). The sectiononthe landsector is includedas Annex F. 67 This is an outcomeofthe workshop sponsor by USAID's Office of Transitional Initiatives,citedat the beginningofthis section. 68 "Reform o f Land Law in the Context of World Bank Lending", at pp. 11-65 of John W. Bruce and others (eds.) Land Law Reform: Achieving Development Policy Objectives. Washington DC: Legal Vice- Presidency,WorldBank,2006. 69 The complexityofthe organizationalchart is misleadingto the extentthat it gives the impressionofa morerobust institutionthan infact existstoday, certainly withregardto the units workingon landmatters. 70 This characterizationis flawed becausesuchrights are alreadyprivate innature.They may be individual or communaldependinguponthe particularcustomary systemandthe particularlandconcerns.It is quite commonfor customary systemsto recognizeindividualrights inresidentialand farm landbut communal rights inpastures or forests. 71 Some importantsources onthe Kenyanexperienceare SimonColdham, "The Effectof Registrationof Title uponCustomaryLandRights inKenya, JournalofAfricanLaw22(2): 91 (1978), andParker Shipton, "The KenyanLandTenure Reform:Misunderstandingsinthe PublicCreationofPrivateProperty", inLand and Societyin ContemporaryAfrica (R. E.Downs & S. P. Reyna, eds., U.New HampshirePress, 1988). 72 John W. Bruceand Shem E. Migot-Adholla(eds), Searchingfor LandTenure Security inAfrica (Dubuque, IA: KendalMunt 1994). Other students ofAfrican landtenurehave similarly questionedthe strategy ofreplacingcustomary landtenure: J.-P. Platteau,"Does AfricaNeedLandReform?" inEvolving LandRights, Policy andTenure inAfrica (C. Toulmin& J. Quan, eds., IIED& Natural ResourcesInstitute, 2000). 73 Certainly, ifcustomaryrights (beyondthe Tribal Reserveandthe CommunalHolding)are to become registrableinterests,the 1974LandRegistrationLaw would needto be amendedto provide for this. 74 The Tolbert Administration earmarkedand some cases expropriatedparcelsof landfor the construction ofpublic buildingandother government uses; but documents to that effect are unavailableand squatters, with the help ofmunicipalofficials have encroached uponsaidlands. 75 This possibleCommissionhas beenreferredto as the "Land ReformCommission". The term "land reform" suggeststaking landaway from some andgivingit to others,andthe consultanthas suggestedthat the term "Lands Commission" be usedinstead.It may be that the Commissionwill inthe endrecommend that some redistributionof landis needed, but the title ofthe Commissionshouldnottake that decisionfor granted.And inany case, there are a wide range of additionallandissuesthat needurgent attention, so "land reform" is too narrow. 76There are noproceedingsfor this workshopbutthe brief(3-4 pageson average) papers from the various workinggroups are availablefrom the Governance ReformCommission.The report ofthe LegalWorking Group inincludedas Annex I. 77An example inthe Liberiancase is the conservationofrecords of landrights.These are scatteredamong severalgovernmentagencies at this point intime, but shouldbe inthe nationalarchivesas providedby law. The authority o fthe President, exercisedthroughthe Commission, may be neededto accomplishthis. This will greatly facilitate the conservationofthese documentsandaccess to them by right-holdersandtheir lawyers. 116 78 The consultant is of course inno way committing the sponsor ofthis consultancy or any other organizationto support the Commission.This is simply hisbestjudgment on prospectsfor funding given his observationsofdonor interest insupportingsuchpolicy and law reformcommissions inother countries. The consultantmakesthe point becauseit was suggestedto himthat uncertainty aboutprospects for funding may have resultedindelay increationofthe Commission, and he wishes to ease this concern. 79 The GRC held a Data Reconciliation Workshop for the working groups on Landand PropertyRights in Liberiaon May 25, 2007, with each ofthe working groups presentinga preliminary paper, inthe natureof issue identification papers. Proceedingshave not beenpublished. 80 The pilot might best be carriedout not in acomplex and difficult area of urbanMonrovia, but ina more manageable peri-urban area, such as the Millsburgarea visited by the consultant:a heavily fee-simple area with important commercial potential, close to Monrovia. Indiscussingpossiblepilot sites, the Ministerof Internal Affairs warned against starting inMonrovia. "Monrovia is a sinkhole inwhich titlingcould bog down for fifty years," he warned, referringto complexity andpoliticizationof conflicts over land inthe capital. Thiesenhusen, William C. (ed.) 1989.Searchingfor Agrarian Reform in Latin America. Boston: Unwin Hyman. 82 For areview of the approachsee Klaus Deininger. 1999. MakingNegotiated Land Reform Work: Initial Experiencefrom Brazil, Colombia, and South Africa, World Bank Policy ResearchWorking Paper No. 2040 (World Bank 1999). 83 While the right ofprescription is abasic elementof the common law ofreal property, the consultantwas unableto discover the legal basis for recognition of aright of prescription inLiberia. There is most likely a court decisionrecognizing the right.A "normal" period would be tento twenty years, and a "shortened" periodmight be on the order of five or six years. 84This was the approachadoptedby some US states after idependencefrom Britain, when inthe late 18* and early 19* centuries conflict arose on the new country's western frontier betweenthe original grantees ofthe British Crown or their successors in interest on one handand on the other, farm communities who hadestablishedthemselves on that land. In 1777, Virginia passeda statute that gave settlers who had squattedon its western bordersthe right to pre-empt(to buy from the owner) the land they had improved. Other states followed suit. See Hernandode Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails EverywhereElse (Basic Books2002): 106. 85For reasonsthat are not clear, this law enactedin2003 requires inSection 1 that it be cited as the "Equal Rights of Customary Marriage Law of 1998". It infact affects both customary and common law marriages. 86Section3.7.2 ofthe Law repeals severalarticles ofthe Aborigines Law, which appears to have been repealedearlier, by its exclusion from the Liberian Code Revised.This is symptomatic of the legal confusionthat prevails inpost-conflict Liberia. The lack of access to laws and court decisions has left what approachesan information vacuum concerning law. The public and even administrators simply do not know what the law is. 87This sectionreferences and incorporatesby that reference the provisions containedinthe Act Adopting a New Domestic RelationsLaw, Title 9 ofthe LCLR, 1973, and Section3.1 similarly incorporatesthe Decedents' Estate Law, Title 8 ofthe LCLR, 1973. 88A memorandumfrom John T. Woods, Managing Director ofthe Forestry Development Authority, to Silas Siakor, Executive Director, SustainableDevelopmentInstitute, "Forest Data", April 16,2007, providesforest data by classes of land use by county, and references a number of relevant deeds involving forest landcollected by the FDA. 89The Constitution inArticle 22(b) provides that "Private property rights, however, shall not extendto any mineral resourceson or beneath any land or to any lands underthe seas and waterways ofthe Republic. All mineral resourcesin and under the seas and other waterways shall belong to the Republic and be used by and for the entire Republic." Forest resources are not included.Under the common law rule, ownershipof land extends to the trees upon land as "fixtures". But what of the right of Tribal Reserves underthe HinterlandsRules and Regulations, which is inthe natureof a usufruct. Doesthe usufruct includethe right to use ofthe trees upon the land ofthe Tribal Reserve?Normally it would, and inpractice it has done so, but againclarification ofthis point is needed. 117 Perhaps anticipating this, the final section o f the Law (23.3) provides that if a portion o f the law is found invalid, the court shall only strike that portion as invalid and preserve the remainder. "TheSustainableDevelopmentInstitute, aLiberianenvironmentalNGOwholobbiedforthisprovision, has been asked by the Forestry Development Authority to take the lead on development o f regulations. DFID is providing technical assistance to SDI, includingthe consultant services o fDr.Elizabeth Alden Wiley. Dr.Wiley very kindly shared information and her informative interim report with the consultant. 92The material within brackets is the consultant's annotation. 93The interests created by law include liens created for taxes, water rates, and there is also an exception for "any lease or agreement for a lease made after or pending registration, for a period not exceedingthree years, where there is actual occupation by the lessee". 118