37088 The World Bank Kabul Urban Policy Notes Series n. 6 Informal settlement in Kabul Conflicts over property rights and resolution of disputes in Kabul: Conclusions This note presents policy recommendations on mechanisms to address land tenure and land dispute resolution in urban Afghanistan. Currently, formal disputes are numerous but they are not as numerous as could be expected. Nevertheless, the potential for significant conflict over property, particularly during a regularization policy, remains mainly due to the chronic insecurity of tenure and corresponding fear of bulldozing endured by Kabul's informal settlers. Supporting a propoor strategy and proceeding to regularization is the most promising way forward. Both formal and informal mechanisms have an essential role to play in land disputes resolution. Given the magnitude of Kabul's informal settlements, communitybased mechanisms need to be supported and they are an efficient way of addressing existing and potential conflicts. Customary norms provide an excellent platform upon which to build accountable, reliable and trusted systems of evidencing. The Special Land Disputes Court, mostly dealing with disputes over private lands, needs to reformed to improve its performance, capacity and accountability. Finally, basic good governance measures need to be implemented in the public agencies involved in property transactions. 1 been constructed over the last 15 years on Policy messages government land without the formal permission of the government or on Property conflicts and insecurity of tenure unplanned land. Regularization of need to be treated separatelyi . informal settlements through private entitlement exercises is the most promising Formal disputes have been shown to be route forward. Regularization criteria relatively limited and largely the preserve based on location of the settlement, mode of the betteroff, given the nature and of plot acquisition, income group and time location of properties that tend to be of the settlement need to be developed (see involved and the time and costs involved Policy Note 2 of this series). However, the in pursuing justice through formal means, regularization process itself may trigger and especially the courts. In contrast, multiple disputes and will need to be chronic insecurity of occupancy is tangibly carefully managed. the fate of the majority. In Kabul this primarily takes the form of fear of eviction, A propoor strategy should underlie largely because homes and shops have regularization of informal settlements. SASEI at The World Bank | 1 Conflicts over property rights and resolution of disputes in Kabul : Conclusions While poorer households should be given process. In the first instance, mediation the opportunity to secure formal toward reconciliation is invariably the ownership of their homes on government preferred firstline mechanism and in the land, the country's laws and sanctions second, local bodies such as shuras and should be applied to those who originally local leaders are advisedly involved. Long appropriated government land to make standing acknowledgement of the money out of plot and house sales. existence and authority of local shuras permeates public process in all spheres. A strict conceptual or strategic distinction Under the new Constitution justice will be between formal and informal property delivered into more formally instituted dispute resolution is to be avoided. elected local governments at village/neighborhood and district levels In practice, both formal and informal (Article 140). Meanwhile, the Judicial processes are essential foci of action. There Commission has begun drafting a `Peace are no grounds for supporting the Councils Law.' Although this began life as improvement of one form of dispute a mechanism to formalize local shuras in resolution over the other. Both have a role their dispute resolution roles, the current to play, determined by a complex set of version of the proposed law restricts these factors such as the nature of the case, its to district and provincial levels and with location and resolvability. Some disputes membership that includes elected persons are simply unsuitable for community from formal institutions--Hoquq, based interventions while many others are Saranwali and the Court itself (Article 15). unnecessarily brought to officialdom or The stated objectives of these new the courts--and which bodies would, in institutions are to assist reconciliation any event, direct that the matter be among the disputants, to assist courts to resolved locally (e.g., boundary disputes, settle disputes through peaceful means and right of way access) or by local actors (e.g., `to reduce waste of time and the wandering inheritance matters). In other respects, the and distress of disputing parties' (Article nature of the case is not at issue, but the 1). The members of these jirgas would be extent to which satisfaction and unpaid (Article 19). They would assist enforcement may be secured. Disputes that disputants to reconcile their differences, are first sought to be resolved at local level taking into consideration local norms, may eventually end up in the courts. human rights, laws and Islamic values Overall, the interrelationship of the formal (Article 7). While the proposal is still a and informal (or official and community draft it could represent a significant link based) mechanisms is close and usefully between formal and informal spheres of upgraded together. Public confidence in dispute resolution. achievable justice in the courts is in Improving court procedures, performance practice an important backdrop to and public accountability in the handling successful communitylevel dispute of disputes will be an essential step not resolution. just for dealing swiftly and fairly with The realities of the interrelationship are existing disputes but for limiting the rising already entrenched in policy and guiding number of new disputes. Formal litigation legislation. Sharia, the Civil Code and the is currently the preserve of the betteroff, Civil Procedures Code as well as relevant mainly because of the type of properties state laws share an emphasis upon involved, and likely to remain so. The procedures which in practice blur the logical target for both procedural and distinctions of formal and informal governance support is the Special Land SASEI at The World Bank | 2 Conflicts over property rights and resolution of disputes in Kabul : Conclusions Disputes Court, which is a manageable and Lack of formal documentation of title as usefully discrete unit with which to begin compared to informal deeds is not the reform and accountability. Professionally cause of disputes, and formal titling will planned and executed support and not on its own resolve or eliminate monitoring that significantly raise its property disputes. Those with most success rate, and in ways the public security of tenure seem to be not those who identify as honest and fair, will have an necessarily hold legal deeds of ownership impact on public confidence in the state but those living in middle to lowincome and rule of law that far outweighs the properties in older, unplanned number of cases it actually handles. (unserviced) but established settlements in Depending upon performance, the city. An essential factor in this is that consideration could usefully be given to first, most have acquired and still sustain widen its mandate and incrementally, its their rights customarily (customary deeds jurisdiction, to embrace all property of inheritance or purchase) and second and disputes cases that involve disputes over related, live in socially intact property rights, not just those affecting environments, in which local leadership returnees. and respect for local norms and social An additional useful target for public sanction systems are effective. In contrast, governance reform will be those municipal although it is the appeal of more valuable and ministerial commissions that have the properties that has engendered possible power to allocate building plots, housing corruption of process and forging of and apartments. The important political documents, and thence dispute, the transformations currently taking place, promised sanctity of title deeds (legal launched with the democratic election of deeds) has not been broadly upheld. There the president, offer an important window are few grounds at this point for claiming of opportunity for reexamining that issue of legal deeds is indispensable to procedures and players, with transparency security. There are, however, grounds for firmly in mind. New and more publicly claiming that security of tenure is available systems of recordkeeping will primarily premised on local cohesion and be key elements of reform. social stability. Local institutions and actors in property Customary norms provide an excellent dispute resolution are worthy of support. platform upon which to build accountable, reliable and trusted systems of evidencing The evidence from this short examination ownership and which will be more readily of disputes suggests that localized, available to the mass of urban owners. communitybased mechanisms are both widely operating and indispensable A large percentage of informal city instruments for not just keeping cases out dwellers are living today on government of the overclogged courts but also for land and therefore have no legal security resolving disputes in affordable, more of tenure (by customary evidence or peaceful and lasting ways. Building upon rightful acquisition or otherwise). It does what exists seems logical and essential. not necessarily follow that this security This needs to be accomplished in ways that may only be granted through acquisition avoid their formalization to an extent that of courtprepared deeds. Practically jeopardizes the very advantages of being speaking, the scope for advancing cheaper local, at the grassroots and essentially and more localized communitybased informal. systems for the issue and maintenance of SASEI at The World Bank | 3 Conflicts over property rights and resolution of disputes in Kabul : Conclusions evidence is very high. Such a system could In short, most requirements to bring order build upon the existing customary and justice to property relations in the city traditions of evidencing. An essential are necessarily basic good governance feature of its modernization would be to measures. Only with such changes will retain the center of evidencing at the local, public confidence in the state and the rule community level and involving of (property) law have a chance to be community actors. This could not only restored. The government is not in a heighten reliability and accountability of position to pursue all desirable records but enable thousands of families to interventions simultaneously, but even a secure their occupancy cheaply and in limited number of modest but solid relatively short periods. interventions will lay a foundation for incremental improvement. The following 2 are suggested as priority actions. Suggestions for action Target the Special Land Disputes Court for In broad terms, the rise in property concentrated improvement and expansion disputes in Kabul reflects the weak rule of law in the postconflict state and The concept of a court with special insufficient supply of organized and responsibilities is sound and, given the legitimate shelter to meet the needs of proliferation of property disputes, a thousands upon thousands of homeless concerted focus to improve the families. General requirements to limit performance, capacity and accountability property disputes include actions to: of the Special Land Disputes Court is an appropriate first target for reform. · Address further informal occupation of Among others, these actions should be government land in the city; considered: · Regularize existing occupancy as swiftly as possible, in at least those · The expansion of the remit of Special areas where environmental damage is Land Disputes Court to allow it to not excessive; handle all property disputes relating to · Strengthen the practice and raise the claims of wrongful possession or legal status and support for informal ownership, not just those deriving machinery for resolving disputes; from refugees or internally displaced · Support and reform the judiciary in persons (IDPs) who have lost ways that dramatically speed up the properties in their absence; resolution of property disputes and · The expansion of its service to the public confidence in decisions; community through establishment of · Encourage provision of autonomous staffed branches in different zones of legal aid services; the country; · Reform policies and procedures in the · The appointment of more senior public sector; judges in the Kabul Province Court to · Impose new transparency measures allow the ten assisting judges to form that reduce corruption and collusion three separate teams/courts to speed up on the part of decisionmakers in the review and rulings; property and housing sector, including · Provision of more clerical support to formal procedures for routine speed up investigation, review and accounting in the public domain. preparation of cases; SASEI at The World Bank | 4 Conflicts over property rights and resolution of disputes in Kabul : Conclusions · Provision of transport (and for ex attempts to collect fees or bribes or Kabul cases, per diems) to enable other complaints are to be reported; judges to hear cases in situ including · Require the Chief Justice to establish a taking testimony from neighbors; Monitoring Process to spotcheck · Implementation of the Presidential performance of the Court and to Directive that the Ministry of Interior publish an Annual Progress Report in provide the Court with a Special Police the public press. unit, made accountable for identifying and bringing summoned defendants to Help limit the number of disputes entering court and enforcing rulings; the Court, through providing public and · Extension of the statutory time within practical support to informal mechanisms which a case must be heard from two to three months; · This would be best launched and · Provision of training courses for tested in selected districts and would judges to ensure they are at the very target WakileGozars, Mosque least fully familiar with the legislation Councils and other informal beyond the Religious Rules and institutions like committees formed at Regulations, including the Civil the community level. This could occur Procedures Code and all landrelated in conjunction with establishing new state laws and upgrade their skills in localized land administration the collection, recording and analysis procedures that may be piloted in of evidence. upgrading schemes or where informal settlements are regularized. The above recommendations should be · Establishment of new permanent strengthened with a Public Accountability institutions may not be advisable as Plan. Such a plan would: these may require unsustainable support and/or encourage rentseeking · Require judges to account for failure to by the members. However, articulation resolve submitted disputes within the of clear procedures that community stipulated time; suspend judges who members, committees and leaders may have failed to do so in a stipulated adopt to maximize fair resolution of number of cases within each quarter; conflicts will help raise the status and maintain complete records of authority of informal mechanisms. proceedings, and make these available Training in basic legal principles and on request to an established mediation and reconciliation process Monitoring Unit which establishes an would be helpful. Manuals could be agreed system for collecting and developed for this. Public guidance recording evidence; could be more widely given through · Oblige the Court to make full text of radio, television and press. Simple decisions available to the public on systems for the recording and request; reporting of reconciliation or decisions · Oblige the Court to prepare and should be developed and consideration publish a Code of Practice for the given to straightforward means Court available to every district office through which such decisions may and post it outside every branch of the gain the weight of law. Special Land Disputes Court, and · Development should also be continued include public information of how to find the right forms for already proposed districtlevel jirgas or peace SASEI at The World Bank | 5 Conflicts over property rights and resolution of disputes in Kabul : Conclusions councils, which have the potential to 3 integrate community and formal Endnotes mechanisms, and to further limit the introduction of cases into the courts. i It will also be important to see that they function in a complimentary fashion. If they clash, it will cause more insecurity. Sporadic titling, especially if carried out by Assist the new postelection leadership and institutions subject to corruption, can be a major source staffing of the Ministry of Urban of insecurity for those without clear legal rights to Development and Housing to take action to occupy land. The informal users in a state of tighten up and monitor allocation of "suspended tenure insecurity" often find it becomes real and urgent when someone turns up with a legal housing to disallow any individual to deed from a court or land registry. acquire more than one governmentbuilt or Municipality allocated housing plot, by: This policy note is based on the document · Establishing independent review prepared by the South Asia Energy and capacity of the plot and apartment Infrastructure Unit at the World Bank, records of the Municipality and Kabul: Urban Land in Crisis, A Policy Note, Maintenance Department (MOUD) September 2005, based on research with systematic expropriation pursued conducted in January 2005. of those who were allocated more than one such asset; · Providing the Shelter Department of MOUH with computer assistance to computerize each and every Block Register Books, which are currently updated manually. This will enable owners to be quickly identified and those who own (or whose wives or families own) more than one apartment to be identified; · The establishment of publicly accountable procedures and reporting of the decisions of such allocation authorities, as well as the decisions of internal complaints commissions in the Municipality and Ministry; · Systematic investigation and prosecution of officials found to have acted corruptly since December 2001 with respect to apartment and building plot allocations, and public land appropriation and developments. · In the long term, move toward the privatization of governmentbuilt housing by selling off to willing buyers, thus shifting responsibility of maintenance to owners and generating a supply of capital to invest in servicing urban land. SASEI at The World Bank | 6