37087 The World Bank Kabul Urban Policy Notes Series n.5 Informal settlement in Kabul Will formal documents of title and the courts resolve all land disputes? Land disputes in Kabul vary according to the type and location of property (formal or informal) and the corresponding documentation of title (legal or customary). The formal resolution system based on the Special Land Disputes Court resolves disputes over formal properties, which most often pertain to wealthier individuals and represent a minority of all land holds. However, Kabul has about 2.4 million informal settlers who often resort to informal communitybased dispute resolution. This note takes as given that mechanisms to regularize tenure should be put in place to address insecurity but it accepts that tenure security will not resolve all disputes. Given the extent of Kabul's informal settlements and the city's projected growth rate of 5% per year, efforts should be made to ensure that the land dispute resolution system supports communitybased mechanisms as an efficient way to address existing and potential conflicts, particularly over informal land. 1 Regardless of these distinctions, mediation Introduction to dispute resolution is an instrument used both formally and mechanisms in Kabul informally. Sharia, the Civil Code, the Civil Procedures Code, and relevant state There is a tendency to make the distinction laws share an emphasis upon procedures between formal and informal mechanisms that in practice blur the distinctions of property dispute resolution. Many between formal and informal processes. In owners consider both customary and court Sharia, mediation towards reconciliation is based dispute resolution to be formal invariably the recommended firstline mechanisms. Conversely, they define dispute resolution mechanism. informal mechanisms as those where no Interventions of local bodies such as formal institutions, officials, or persons are Shuras and local leaders is the second line involved and/or where no customary or of dispute resolution. Court action is the legal evidence of property ownership third and final dispute resolution exists. Recognized formal entities include mechanism recommended by the codes. the Special Land Disputes Court (see section 2) and officials or persons of locally In practice, the courts, dispute acknowledged status, such as the wakile commissions, and other formal institutions gozar or the mosque leader. prefer that complainants settle their grievances out of the courts whenever possible, and many of the cases that formal SASEI at The World Bank | 1 Will formal documents of title and the courts resolve all land disputes? institutions address are resolved through Customary deeds are documents mediation. For instance, the Attorney countersigned by wakile gozars. General's Office in Kabul Province Unofficial deeds are those unrecognized mediates around one third of all by local leaders (see section 3). submissions itself and only one quarter of Alternatively, tax paying and haqaba cases accepted for investigation are (water rights) documents can provide valid eventually forwarded to the courts. The evidence of ownership when the land is actual purpose of the Hoquq department in noted in the original book of registration the Ministry of Justice is mediation. Even and taxation, and when the documents are judges in the Special Land Disputes Court officially issued. make mediation between parties their first objective. According to a survey taken among wakile gozars and residents in eight gozars, legal Thus, the real distinction that should be deeds are unusual and only accounted for made in applying dispute mechanisms is between 5% and 30% of all titles, except in an assessment of whether or not that Naw Abad Deh Afghananan (District 2), dispute is most suited for community where they amounted to 75% (see Table 1). based interventions based on mediation In line with the fact that the more valuable (for example, boundary disputes and right the property the more vulnerable it is to of way) as opposed to a court's (formal) wrongful occupancy, the more formal the resolution. Another key factor determining documentation the more vulnerable it is to which type of mechanisms for dispute formal dispute and to alteration. According resolution can be applied stems from the to Norwegian Relief Council (NRC) nature of the community. Efficient records, 71% of disputed cases of communitybased procedures require that ownership put before the Special Land both parties to the dispute should agree to Disputes Court involve claims of the better submit to the will of the advisers. Social off. Thus, the issue of legal deeds does not coercion is also required for the decision to seem to be directly related to security of be acted upon. Predictably, where tenure and to the resolution or elimination community identity and force are weak, of property disputes. disputants are less bound to submit to decisions. Official procedures: the Special Land Disputes Court 2 Titles and resolution mechanisms in formal The Special Land Disputes Court was settlements instituted to specifically deal with private persons who are returnees or internally Titles in formal settlements displaced and who seek to retrieve private properties of which they have been Evidential documentation of ownership unwillingly deprived during the period falls into three categories: (1) legal deeds, since 1978. Neither the government nor its (2) customary deeds, and (3) unofficial agents can use the court to seek restitution deeds. Legal deeds are documents of nonprivate property. The court's prepared by the courts endorsing structure has been modified since 2002 and inheritance, purchase, gift, or other today it consists of 18 judges operating in transaction of a property. They are two courts, one for Kabul and one for the typically held by wealthier owners in rest of the country. A secondlevel court for respect of betterquality buildings. SASEI at The World Bank | 2 Will formal documents of title and the courts resolve all land disputes? appeal within the overall Special Court has owners, each of which is seeking been established as well. compensation. · Since the establishment of the right of Table 1: Titles in Sample Gozars by % appeal, an astounding 80% of cases are Legal Customary returned by the party who lost the case. Deeds Deeds Informal Gozar (Qabala (Qabala Deeds or · Cases are time consuming, particularly Sharia) Orfi) No Deeds as many claims are based upon Den Donar in disputed documentation and District 7 < 20% 80% 0 documents need to be sent to the Siah Sang in 30% Documents Registry in the Supreme District 8 7% 63% (post 2001) Chel Soton in Court (Markhzan) for authentication. District 7 30% 70% 0 · A common allegation made by clients Sar-e-Tapa 35% in District 7 5% 60% (post 2001) is that no case will be swiftly heard or Mula Bozorg 30% resolved without making a payment. in District 7 28% 42% (post 2001) Naw Abad · Finally, judges are generally elderly Deh and have limited legal education Afghananan 75% 19% 6% in District 2 beyond Sharia. UN-Habitat Project site in `few' `most' 0 The majority of Kabul's residents living in District 6 UN-Habitat informal areas usually lack the knowledge, Project site in `some' `most' time, connections, confidence, and funds to District 7 bring grievances to formal institutions. Sources: Wakil-e gozar and residents. They also fear eviction because of their insecure tenure. The Special Court is failing to deal swiftly or effectively with claims. Despite its 3 statutory requirement of resolving cases Titles and resolution mechanisms in within two months, only 5% of all cases informal settlements registered have been resolved and an acute dissatisfaction with the rulings prevail. Customary deeds The main impediments affecting the Customary Deeds (Urfee) of inheritance or efficient functioning of the Special Land purchase are witnessrecorded documents Disputes Court include the following: prepared at the local level and routinely · The court lacks the capacity to deal countersigned by the wakile gozar for acknowledged members of their with an increasing number of cases. · There is lack of coordination with community. Customary deeds tend to be held by middle to lowincome families for other state agencies, particularly the unserviced houses in unplanned police, as a result of which settlements. They usually take the form of enforcement of decisions is bills of sale or subdivision at inheritance. problematic (the police are typically These deeds are the most common bribed by wrongful occupants to claim documents of title since they are they cannot be found). · There are many difficulties in the equivalent to legal deeds but cheaper to obtain. The study shows that in all gozars numerous cases where property has except for Naw Abad Deh Afghananan passed through the hands of several (District 2), customary deeds range from 42% to 80% of all titles (see Table 1). SASEI at The World Bank | 3 Will formal documents of title and the courts resolve all land disputes? By statute, customary documents are According to NRC data, only 14% of the admissible evidence of tenure if they were cases they mediate are located on public prepared prior to 1978. Legislation is land (versus 86% on private land) and only ambiguous and judges normally follow 31% of cases involve property in an their own interpretation of Sharia, which unserviced area (69% in serviced areas). In places the emphasis upon local testimony informal areas, most disputes arise over as to the truth of occupation and rights. An matters such as one house invading the important article of the statute assures privacy of another, footpaths being ruined owners security where they have lived "for with waste disposal, and snow being a continuing period of 15 years and cleared from one compound to another. In possessed (the real estate) without any these instances, communitylevel dispute and objection" (Article 2779). As mechanisms are the preferred means of customary documents are embedded in the dispute resolution because of issues of community context and are admissible time, cost, trust, and enforceability. proof of ownership, disputes over these properties are fewer and security of tenure At the community level, the mosque firmer. council is responsible for channeling disputes toward the most suitable forum Unofficial documentation for dispute resolution. Local mechanisms for resolution include (1) neighbors and Unofficial documentation refers to elders; (2) the mosque councils, comprising documentation that is not countersigned representatives of each mosque in the by the wakile gozar or another official. neighborhood; and (3) the wakile gozar. Holders of unofficial documentation face the highest insecurity of all settlers. The An important feature of these mechanisms many thousands (and possibly over a is that actors are not always the same and million) of newcomers who bought land none of those assisting in resolving the and built on public lands adjacent to dispute are paid. No permanently standing existing settlements in recent years are in council for dispute resolution exists, which this situation. These settlers are considered makes them less vulnerable to bribes. illegal and wakile gozar typically refuse to Rulings tend to be satisfactory for the endorse their land transactions. As a result, parties involved, making community these settlers do not have any embedded based procedures an effective tool of customary or legal deeds. In gozars where dispute resolution. land grabbing occurred after 2001, 30% to 35% of the households have no deeds or 4 hold informal deeds (see Table 1). Conclusions and policy recommendations Communitybased dispute resolution Recommendations on issuance of titles and procedures conflict resolution mechanisms are outlined in this section and further All informal settlers are in different ways developed in Policy Note 6. Lack of formal contravening the law and they rarely documentation of title (such as court contest property rights either formally in prepared deeds, expensive cadastralbased the courts or informally. Their anxiety that surveys, and registration of house plots) is the case will trigger a worse effect, such as not the cause of disputes since the more eviction, particularly affects settlers located formal the documentation the more it is on government land. prone to corruption and hence to dispute. SASEI at The World Bank | 4 Will formal documents of title and the courts resolve all land disputes? Security of tenure is not premised on usefully discrete unit with which to begin holding legal deeds but is primarily reform and accountability. Professionally premised on local cohesion and social planned and executed support and stability. Thus, although fear of the monitoring will have an impact on public bulldozer prevails among all informal confidence in the state and rule of law that settlers, those living in middle to low far outweighs the number of cases the income properties in older, unplanned, but court actually handles. New and more established settlements in the city seem to publicly available systems of record have higher security of tenure. There are keeping will also be key elements of two important aspects of this security. reform. First, most of these settlers have acquired and retain their rights customarily At a community level, the large number of (customary deeds of inheritance or city dwellers living on government land purchase); second, and related, they live in with no security of tenure (by customary socially cohesive environments with evidence or rightful acquisition or respected local leadership, respected local otherwise) are a policy challenge to the norms, and effective social sanction government. Practically speaking, the systems. scope for advancing cheaper and more localized communitybased systems for the Customary norms provide an excellent issue and maintenance of evidence is very platform on which to build accountable, high. Such a system could build upon the reliable, and trusted systems of evidenced existing customary traditions of ownership. Such informal and local evidencing. However, the system should systems will be more readily available to avoid formalization of local traditions in the mass of urban owners. ways that reduce the advantages of being local, grassroots, and essentially informal. In practice, both formal and informal (or official and communitybased) processes Local communitybased systems should be have an essential role to play in land launched and tested in selected districts disputes resolution, determined by factors and should involve wakile gozars, such as the nature of the case, its location, mosque councils, and other informal and resolvability. Because they are institutions such as committees formed at interconnected, formal and informal community level. The articulation of clear mechanisms are usefully upgraded procedures that community members, together. Public confidence in achievable committees, and leaders may adopt to justice in the courts is an important maximize fair resolution of conflicts will backdrop to successful communitylevel help raise the status and authority of dispute resolution. informal mechanisms. Training in basic legal principles and mediation and At the formal level, improving court reconciliation process would be helpful. procedures, performance, and public accountability will lead to expedited and The Judicial Commission has begun fairer resolution of existing disputes. drafting a "Peace Councils Law" to assist Better court performance will also help communitybased reconciliation among limit the rising number of new disputes. disputants. The draft Law takes into The logical target for both procedural and consideration local norms, human rights, governance support is the Special Land local laws, and Islamic values, and is Disputes Court, which is a manageable and intended to reduce the introduction of new SASEI at The World Bank | 5 Will formal documents of title and the courts resolve all land disputes? cases into the courts. These efforts should be continued. Communitybased mechanisms can heighten reliability and accountability of records, and also enable thousands of families to secure their occupancy cheaply and relatively quickly. This policy note is based on the document prepared by the South Asia Energy and Infrastructure Unit at the World Bank, Kabul: Urban Land in Crisis, A Policy Note, September 2005, based on research conducted in January 2005. SASEI at The World Bank | 6