The draft National Land Policy

Contents | 1.0 Introduction | 2.0 Issues and Policy Statements | 3.0 Implementation - Legislative Measures | 4.0 Implementation - Institutional Measures | Appendices

Chapter 4 - Implementation - Institutional Measures

4.1 Institutional Framework

4.1.1 An Institutional Hierarchy, authorised by and answerable to His Majesty the King through Cabinet.

4.1.1.1 Land Management Authority (LMA):

This authority is to be a body representative of all key stakeholders in land, inclusive of the private sector, chiefs, parastatals, communities and government. It is to be established by Act of Parliament and enfold a series of specialist land committees. It is to coordinate land administration in the country and report to cabinet under the portfolio of a new Ministry specialising in Land Affairs (bringing together traditional and modern institutions) which will also provide a secretariat to the LMA. It is to advise the Minister on all land related issues.

Its responsibilities are to include:

1. Land administration, land allocation to various uses and for formulating, monitoring and evaluating policies concerning the administration and use of land, irrespective of tenure;
2. Establishing and coordinating mechanisms and capacities for managing land use planning at national level; ensuring accountability of these instruments;
3. Establishing processes for the definition and delineation of land use zones essential for the suitable development of the land resource (for example, areas of high agricultural potential, priority conservation areas, residential and industrial development areas);
4. Providing or facilitating such managerial, technical, auditing, alternative dispute resolution and all other such expertise as required by the levels below;
5. Reallocating or changing land uses as necessary; prohibiting a particular land use if it is considered to be not in the public interest;
6. Resolving land disputes brought before it, either on appeal or at first recourse, including chiefly boundary disputes. Its resolutions are to be final and binding to all, but with a right of appeal to the High Court on points of law.
7. Delegating established and proposed structures at national and local levels to deal with specific issues. F or example, the Human Settlement Authority, which is to be a member of the LMA, will retain its powers to deal with human settlement issues within the framework of the broader concerns addressed by the LMA. A revitalised CRDB will be enabled to fulfill its role concerning resettlement in rural areas, again within the broader concerns addressed by the LMA. Such specialised structures or bodies will also act as technical advisors to the Authority on matters within their purview.
8. Create and empower incentives for the creation of the Community Development Councils.

It is envisaged that the LMA direct itself to the organisation and empowerment of community based organisations of a scale and kind suitable to the existing social structures. These are to be known as Community Development Councils (CDCs). In peri-urban areas, they are to be at the scale of their futures as council wards; in rural areas, at the scale of identifiably distinct communities. The most practical scale to ensure effectiveness is to be determined during the implementation of this policy, but as there are less than four thousand rural dwellers per chiefdom on average the CDC may often be a chiefdom. However, in the circumstances where several identifiably distinct communities are found in a chiefdom, each of them would have its own CDC under the power of the chief.

Directing itself through the competent authorities in all usual circumstances, the role of the LMA concerning the CDCs are, inter alia, to assist the CDCs to:

1. Implement a macro structure plan for the area to be administered by the CDC, and in the planning of micro developments within their geographic areas of authority.
2. Coordinate the implementation of major trunk infrastructure within the CDC with other relevant ministries.
3. Review and approve the application to establish a CDC and to facilitate an application’s passage through other Government Ministries thereby providing a one-stop shop.
4. Facilitate the preliminary process of establishing a CDC.
5. Provide technical support to communities in the planning stages.
6. Promote an understanding of the concept of CDCs.
7. Facilitate the administration of Community Mortgage loans for infrastructure
8. Enter into contracts with CDCs.
9. Provide a forum for the resolution of grievances outside of the CDCs.
10. Approve changes in the community contracts.

4.1.1.2. Existing Authorities.

All existing competent authorities (including chiefs in libandla, the farm owners vis a vis farm dwellers, and the councils in urban areas) are to retain their existing authorities as expressed in the relevant legislation and/or custom as appropriate. Under all normal circumstances, communications between the LMA and the CDCs are to be through the existing competent authorities. However, in the event of any land-related dispute, an appeal lies at first recourse to the Land Management Authority and subsequently to either the High Court or His Majesty as appropriate to the context of the dispute.

4.1.1.3 Community Development Councils (CDCs)

These associations are to be the vehicles for the application of policy principle 1.4.5 - Community participation, accountability and transparency in land administration. Under this policy many responsibilities will be devolved to Community Development Councils (CDCs) which will have a membership of residents in a self-defined area. The CDCs will be registered under new legislation and will have authority within a defined spatial area, based on existing traditional boundaries where feasible. It will be voluntary for residents in an area to decide whether or not to form a CDC. Once an area has decided to form a CDC then membership will be compulsory for all residents in the delimited area.

The Process of Bringing Communities into CDCs

In keeping with the evolutionary approach, the Land Management Authority, with maximum stakeholder participation, should steer communities towards CDC status. This implies that the establishment of a community management body is the culmination of a series of steps in the process, building upon the existing administrative structure. This will require the expertise of highly trained community facilitators within the LMA with emphasis on process management and developing change capacities - not just establishing structures.

Communities will be invited to enter into a process with the guidance of the LMA. An interim management committee, representative of stakeholders in the community, will first promote the concept within the community through briefings with key leaders, through public meetings and other means. If the community is positive then, through participatory mechanisms, a land use and a development plan would be drafted. When this is accepted by the LMA the next stage will be to formally constitute the CDC. A draft constitution for the CDC will be presented at a community meeting. They will be based on a model constitution prepared by the LMA (in previous consultation with communities and drawing on international experience) and can be amended to suit local circumstances, although basic principles can not be altered. This would culminate in the election of a management body which would enter into a contract with the Land Management Authority to adhere to the constitution and to the land-use and subsequently formulated development plans.

It is expected that the incentives provided by forming a CDC will enable them to be formed on a voluntary basis. The strategy will be implemented on this understanding. There are however issues of equity if some communities do not wish to form CDCs and this adversely affects communities which have done so. For example, it may affect access to infrastructure or population growth may be over-concentrated in one area when it could be more widely dispersed. Then the policy will have to consider whether to make establishment of CDCs compulsory under certain circumstances.

Community Land Tenure and Management

The CDCs will be delegated such authority as permitted by His Majesty, the LMA and the competent authority. Therefore, there needs to be a clear definition and recognition of existing property and management rights. In this respect, it is recommended that all development rights be invested in the community, in accord with the Habitat I recommendation that the value of the development potential be captured by the community. That is, any development rights beyond those already invested in individuals be recognised as the property of the CDCs, capable of being divested to individuals with the consent of the CDC.

With the assistance of the LMA and the competent authority, the tasks of the CDCs are to include the following. To:

• Develop rules for land use within the CDC area and mechanisms for the evolution of these rules over time.
• Decide upon the nature, conditions and scope of leasehold rights to individual land holders and the incremental individuation of tenure when and if desired.
• Develop rules regarding the use of common property resources (rivers, wells, drainage, grazing land, agricultural land etc.).
• Determine methods of exchange for property rights.
• Write a constitution embodying these rules.
• Establish a general land use plan.
• Prepare a land use plan and development plan for the CDC with due regard for neighbouring developments and existing or planned trunk infrastructure.
• Determine acceptable minimum standards for the community on environmental hygiene, building regulations, disposal of sewage and rubbish, zoning, subdivisions etc. with full participation of community members.
• Develop appropriate and understandable bye-laws to enforce the above, including a grievance procedure for individual landholders and tenants.
• Create a register of land holdings and landowners using a suitably low-tech. method.
• Record within this register of land holdings and land owners the rightful inheritors of such rights in the case of the death of the present holders.
• Establish law enforcement procedures concerning:
• Settlement of boundary disputes.
• Enforcement of bye-laws.
• Enforcement of settlement laws and tenancy regulations.
• Enforcement of the development land use plan.
• Right to impose fines on settlers and tenants who do not conform to the rules.
• Right to request eviction of settlers and tenants after reference to the competent authority.
• Protection and enforcement of the inherited rights of orphans and others unable to protect their rights.

Control finances:

The CDCs can:

• Raise finance for community’s infrastructural & social development
• Administer individual loans within the Community Mortgage
• Collect monies from residents for maintenance activities.
• Purchase additional adjacent land for expansion, e.g. private farms.
• Receive subventions.
• A critical mass of individuated tenure may be required in a CDC to provide collateral for infrastructure delivery.

Constitution and bye-laws of CDCs

CDCs will have a constitution derived from a standard model constitution prepared by the LMA but adapted to local conditions if required. CDCs will also develop bye-laws which will regulate the management of the area covered by the CDC in matters such as land use, settlement criteria, development, environmental management and any other aspect which the CDC wishes to address. These bye-laws must accord with basic principles set by the LMA and cannot contravene national legislation or policy. Those eligible to be members will be all those who were residents before an agreed date in the past (e.g. 1 January 1997). The CDC will develop criteria for subsequent membership of new residents.

Composition of the CDC Management Committee.

At all times, the CDCs are to start with a composition truly reflecting the existing structure of management rights, and be incrementally developed under a time-bound management plan towards the broad principles of transparency, accountability, democracy and gender equality.

In rural areas, the competent authority or his nominee is to be the chairman of the committee, to fulfill his traditional role as the catalyst of consensus rather than the more recently imposed role of individual decision-maker.

In peri-urban areas, the composition of Community Development Council’s management committee should reflect the community’s gradual evolution towards the universal franchise that will accrue upon attaining local government status.

General Strategic Approach

The strategy is to be based on the principle subsidiarity, i.e. devolution of decision-making and control to the lowest level possible.

The Land Management Authority would assist communities wishing to enter into these arrangements by:

• Providing/accessing appropriate technical, legal and extension services. These may be provided free of charge or on a user-pays basis, depending upon the requirements and circumstances.
• Facilitating the participatory process whereby the land use plan and rules are developed.
• facilitating those elections/ballots requiring the full participation of the CDCs’ membership.
• General education of the communities on the CDC concept.
• Approve the development plan of each CDC and manage its path through other GOS ministries / parastatals should their approval be required.

Once the above matters had been resolved and approved, the CDC would enter into a contract with the LMA to adhere to its constitution and development plan for a period of, say, 10 years or until such time as the CDC wished to make amendments to the plan, bye-laws and constitution, whichever comes first.

A Process Approach

The policy will be implemented through a process approach (a continuation of the approach to policy formulation) in which stakeholders will be involved at each stage in gathering information, determining action at the appropriate level (national, community) and determining the responsibilities of actors in implementation.

Before initiating CDC development the LMA will define their areas using data available on the ground and from GIS, or by specially commissioning the preparation of such data (i.e. through aerial surveys or satellite imagery). It will then prepare a map which identifies, in a preliminary manner, potential CDC boundaries. Definition of final boundaries will be undertaken in a simple manner by communities who will identify existing natural (rivers, trees, roads etc.) and social boundaries (e.g. wards).

4.1.2 Inter-ministerial Cabinet Land Committee

A cabinet committee should be formed to continually monitor the effectiveness of the LMA in achieving the visions and objectives of this policy.

4.1.3 Public Land Management Unit

A unit under the Ministry responsible for Land for managing all public land. It must be equipped with appropriate technical staff (eg valuers and land economists, planners, engineers, etc.).

At present, there is no consolidated inventory of government land holdings. Without such an inventory, opportunities for rational management of the government's land resource are curtailed. Some government institutions are trapped in inappropriate locations, while others hoard valuable land for decades in the faint hope of its future utilisation. The opportunity costs of these and other malpractices in government land management are indefensible. The authority of the office of the Prime Minister is required to decide conflicting land claims and prioritisations between ministries.

4.1.4 Rationalisation of land-related public service administration

Bring Surveys and Registration of Deeds under one Minister together with land valuation and other governmental arms concerned with land allocation, acquisition and management (refer policy 2.6.c).

4.2 Budgetary implications

4.3 Land Information System

For many years, governments throughout the world have become increasingly aware of the need for effective management of their nation's land resource if the economic and social needs of their communities are to be met. More recently, they are also becoming increasingly aware that good land management is dependent on the efficient gathering and production of effective land related information.

A landmark statement was that of the United Nations Economic and Social Council when it noted that an efficient land records system is a basic tool for stimulating economic and social development in both rural and urban areas, and for ensuring effective administration and planning in the public sector.

The realisation that good land resource management is totally dependent on good land records or information management, has led many jurisdictions to introduce new operational methods into areas such as survey and mapping, registration, valuation, allocation, planning and environmental management.

The use of new operational methods for land information management in essence means the application of computer technology, and an integrated, corporate approach is necessary because land information is dispersed across numerous Ministries and organisations.

4.3.1 Land Information Management Strategic Plan

The Ministries of Housing and Urban Development, Natural Resources Environment and Energy, and Justice recognized the need for a strategic plan for Land Information Management. Each Ministry wished to see an integrated approach to the issue, but was also driven by individual needs: the Ministry of Housing and Urban Development wanted better land information to support local government tax collection, physical planning and land allocation, the Surveyor General’s Department (MNRE) and the Registry of Deeds (MOJ) wanted to incorporate each others data into their existing computerised systems.

In 1994 those ministries, with the support of the Ministry of Economic Planning and Development, produced a Land Information Management Strategic Plan. The Plan is based on a functional analysis of all land information agencies, carried out by teams incorporating government officials. The report includes a development strategy and implementation plan.

Components of the Plan have since been implemented within individual ministries as part of ongoing development work. However, the integrated elements of the Plan have not progressed. In brief these are:

1. The formation of a Steering Committee, Technical Committee and User Forum, to coordinate planned development (although an Ad Hoc Committee chaired by the Ministry of Finance has met on three occasions).
2. The establishment of a Secretariat to provide technical and administrative support.
3. The planning and production of a detailed implementation plan.

National policy in this area is to facilitate progress the Strategic Plan. That is, the Government recognises the value and need for land information and its proper management, and that this requires coordination, planning and control.

As a component of the LMA the Steering Committee will provide policy guidance, the Technical Committee will oversee implementation, and the User Forum will provide feedback from users. The Secretariate, initially on a part time basis, will provide support and coordination services. It is hoped that donor funds might be secured to find a more detailed implementation plan, and to establish a full time secretariats with computer resources for the implementation period.

4.3.2 Financial Implications

No additional financial resources are required at this time.

4.3.3 Human Resources

No additional post are necessary at this time. However, a small number of staff in existing posts will be required to devote amounts of their time to tasks associated with the plan.

4.3.4 Institutional Implications

Land Information Management cuts across current Ministerial and departmental boundaries. As such, the LMA is the natural home for the Land Information System committee hierarchy. The Ministry of Finance Computer Section might be the logical home for a Land Information Secretariat, but in the interim the Secretariat can operate on a part time basis from the Ministry of Natural Resources and Energy.