No to landlessness in Mozambique. No to absentee landowners, those who let the land and do not invest. Recognition of testimonial proof of land occupation by the poor. Incorporation of common law systems into the legal framework. Stop the bi-modal approach for agricultural development.
(Text of Mozambican civil society divulged in 1996)
The debate over the elaboration of a new Land Law in Mozambique was unleashed as a result of a specific national and regional situation. The country was finally entering the post-war [era] thus making it possible for those living in urban areas to return to the countryside, and enabling rural families to return to their land of origin; furthermore, the structural readjustment opened up new perspectives for investment in rural areas by means of a re-privatisation of state agricultural estates. In the region, the end of the apartheid regime in South Africa and the imminent fall of the land ownership system in Zimbabwe pointed towards capital inflows and the arrival of entrepreneurs in Mozambique.
This culminated in the monopoly by the urban йlites of the best land for speculative purposes; after this took place, land conflicts with the rural populations began to appear everywhere. The alarm was sounded; the country then lived almost exclusively on external food support; thus it could not be permitted that the few lands with infrastructure would remain unproductive. This was due to motives that had nothing to do with the war. It became a matter of urgency to review the Land Law of 1979, which not only granted excessive advantages to the state and to Frelimo, which fostered corruption, but also stimulated the monopoly of the land25 .
It was within this context that the movement now known as the Land Campaign came into being as a movement. In the beginning it was not a structured campaign; fundamentally, it was an awareness which covered a large spectrum of social layers and interest groups, associations and co-operatives, non government organisations, academics, politicians, and even private sector elements, in additions to dozens of unknown, honest people who together manifested their disquiet about what was happening and feared that a new social conflict would erupt in the country, and that hunger would return and be entrenched in the devastated rural areas.
A series of studies were carried out on the nature and outline of the problem, as well as on the popular aspirations and alternatives for rural development. These were widely discussed around the whole country. The motive force was a thorough discussion of the various draft bills of the new Land Law. These were the responsibility of the newly created technical Secretariat of the Inter Ministerial Land Commission26 .It was the catalysing movement of this dynamic that finally became the Land Campaign. Little by little some consensus was reached between the various public opinion formers and those in decision making, including those at the core of the parties and in parliament. Among the issues on which consensus was reached the following should be emphasised:
- As the structural transformation of the economy would not be taking place in the short or medium term, since conditions for massive employment creation, industrialisation and urbanisation of society were non-existent, the peasantry was not a class in transition into the rural proletariat or urban employee, but a foundation whereupon the country's process of rural development would have to be based . So, 'no to landlessness' became a point of consensus.
- As large scale agricultural investments were not foreseeable, since the investment tendency in the region's rural areas is oriented towards the lumber sector and tourism (land without people but with a lot of animals!), the Law should move from a reactive position of defence of the rural families' interests to a proactive position, towards the incentivising of national capital creation from the sphere of family savings to the reinvestment of aggregate savings at national level. In this fashion the object of the swift transformation of the rural family, from a risk minimising unit into a return maximising unit, arose as an imperative for which the Land Law should constitute the institutional framework. The increase of family savings and their reinvestment became an objective which could not be compatible with the leasing of the land by large estate owners to the poor. So, 'no to the absentee landowners' and 'no to the leasing of land as condition for survival' became the second point of consensus.
- As the registered land market was still in its early stages and was structurally distorted, the state continued to be responsible for land adjudication and, consequently, for safeguarding the constitutional rights of the people. In this case, why then did the law compel the people to register and title their land so that their very rights would be recognised by the state? Why could a legal mechanism not be introduced that would compel the state to recognise, by default, the occupation rights of the rural families based on oral testimony, as was the custom among the poor? The inclusion of oral proof on equal footing with the title for the purpose of recognition of the person's occupation rights as a proactive measure was the third point of consensus27 .
- As with the postwar period, when the systems of common law were efficient and demonstrated an enormous efficiency in the adjudication of land for more than five million people, why not incorporate them into the Land Law instead of considering them qualitatively inferior and 'traditional'? The only reservation to be introduced was related to the secondary role of women in the position of wife, daughter or niece28 ; the introduction of a legal clause assuring the constitutional rights of women has been suggested. So, the incorporation of common law into the Land Law, in place of opting for legislative dualism, became the fourth point of national consensus.
In less than six months dozens of organisations and entities agreed on these four basic points; an increasing number of parliamentarians accepted them as a valid platform towards resolving the land issue in the country; the private sector with vested interests saw them as a way to reducing the inflationary transaction costs by the land monopolisers; and the donors all together, including the World Bank29 , recognised that this was the only alternative for the complex issue of an efficient and effective land distribution.
The new Land Law was approved by parliament in 1997 and became effective on 1st January 1998. That was the time when it was disseminated throughout the country. Every individual would have to be informed of his or her rights and of the procedures contained in the new law. That is why the movement ended up being called the 'Land Campaign', marking the moment of devolution to the rural people of what had been their contribution towards a national legislative act.
Within two years, approximately 200 non governmental organisations, grassroots community organisations, churches, research institutes and other institutions had joined the Land Campaign. More than 15 000 persons were trained as activists and 50 000 were directly involved in the Land Campaign in 114 of Mozambique's 128 districts; there even came a point when the state's administrators were complaining that the people knew the law better than they did.
The institutional framework had been created, but the most difficult part was still missing - its implementation. Another phase had been entered into and, obviously, new types of problems emerged. Firstly there was the huge resistance from employees in the title deeds offices to accept the new law; this is because, in a way, they would no longer have the monopoly in the decision making regarding land adjudications. Afterwards there surfaced problems related to appeals in cases of violation of the Law; these only demonstrated the extreme fragility and corruption in the Mozambican judicial system. Soon afterwards [there appeared] conceptual problems connected to the definition of community, of the space it occupied, and of the legal precept that the right of occupation implies the duty of utilisation by private, family or community [concerns]. In parallel, the issue of partnerships arose, as well as the lack of capital for rendering them concrete. Later came the monopolisers, using the false argument that the land had to be privatised in order to make credit available; the real purpose of this privatisation was to take ownership of great land estates for speculative purposes and for leasing to poorer people. And lastly, the static vision of property zoning, instead of zoning of potential uses, which may result in the non reinvestment of savings by those who are already settled there.
New problems mean new challenges and new legal provisions pertaining to regulation. For this reason, the Land Law was conceived as a dynamic instrument which would be capable of incorporating change as practice would show the need for this change, without creating obstacles but also without losing sight that, what is at stake is not the land per se, but consumption related to access, production intimately connected to possession and distribution of wealth which is consubstantiated by land distribution by the various and varied productive units.
Footnotes:
- According to the 1979 Act, land taxes decreased with an area increase. The rationality of this legal mechanism was based on the socialist orientation of the economy, in which the largest areas belonged to state enterprises and, therefore, they paid less taxes.
- Tanner, Christopher, 2001, Law-Making in an African Context: The 1997 Mozambican Land Law, mimeo, Maputo.
- It is interesting to mention the fact that Mozambique did, in 1997, what Hernando de Soto advocates as a solution in his most recent book The Mystery of Capital.
- See in this regard Negrгo, J, 2001, "Cinco Sistemas de Direitos Consuetudinбrios da Terra em Moзambique", in Relatуrio de Desenvolvimento Humano de Moзambique, 2001, New York: UNDP.
- The World Bank took up an identical position.
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