LAW, GOVERNANCE, AND DEVELOPMENT RESEARCH LEGALISING LAND RIGHTS Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America Edited by JANINE M. UBINK ANDRÉ J. HOEKEMA WILLEM J. ASSIES LEIDEN UNIVERSITY PRESS Legalising Land Rights Law, Governance, and Development The Leiden University Press series on Law, Governance, and Development brings together an interdisciplinary body of work about the formation and functioning of legal systems in developing countries, and about interventions to strengthen them. The series aims to engage academics, policy makers and practitioners at the national and international level, thus attempting to stimulate legal reform for good governance and development. General Editors: Jan Michiel Otto (Leiden University) Benjamin van Rooij (Leiden University) Editorial Board: Abdullahi Ahmed An-Naı´m (Emory University) Keebet von Benda Beckman (Max Planck Institute for Social Anthropology) John Bruce (Land and Development Solutions International) Jianfu Chen (La Trobe University) Sally Engle Merry (New York University) Julio Faundez (University of Warwick) Linn Hammergren (World Bank) Andrew Harding (University of Victoria) Fu Hualing (Hong Kong University) Goran Hyden (University of Florida) Martin Lau (SOAS, University of London) Christian Lund (Roskilde University) Barbara Oomen (University of Amsterdam and Roosevelt Academy) Veronica Taylor (University of Washington) David Trubek (University of Wisconsin) Legalising Land Rights Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America Edited by Janine M. Ubink, Andre´ J. Hoekema, and Willem J. Assies Leiden University Press This book has been made possible by a grant from the Netherlands Or- ganisation for Scientific Research (NWO MAGW SaRO). Cover design: Studio Jan de Boer, Amsterdam Layout: The DocWorkers, Almere ISBN 978 90 8728 056 7 e-ISBN 978 90 4850 669 9 NUR 759 / 828 © J.M. Ubink, A.J. Hoekema, W.J. Assies / Leiden University Press, 2009 All rights reserved. Without limiting the rights under copyright re- served above, no part of this book may be reproduced, stored in or in- troduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book. Contents 1. Legalising land rights in Africa, Asia and Latin America: An introduction Janine Ubink 7 2. Peasants and agrarian reforms: The unfinished quest for secure land rights in Ethiopia Dessalegn Rahmato 33 3. Land rights and tenure security: Rural land registration in Ethiopia Dessalegn Rahmato 59 4. Securing land rights in Ghana Kojo Sebastian Amanor 97 5. Tree plantations, agricultural commodification, and land tenure security in Ghana Kojo Sebastian Amanor 133 6. Legalising customary land tenure in Ghana: The case of peri-urban Kumasi Janine Ubink 163 7. Land tenure reform and tenure security in Namibia Marco Lankhorst 193 8. Regulating or deregulating informal land tenure? A Namibian case study on the prospects of improving tenure security under the Flexible Land Tenure Bill Marco Lankhorst and Muriël Veldman 217 9. Land reform in Senegal: l’Histoire se répète? Gerti Hesseling 243 10. Tenure security in the periphery of Ziguinchor: The impact of politics and social relations Gerti Hesseling and John Eichelsheim 271 11. Land tenure in Bolivia: From colonial times to post-neoliberalism Willem Assies 293 6 CONTENTS 12. Problems undermining the titling and tenure security of common-property lands: The case of indigenous people of Bolivia’s lowlands Diego Pacheco 325 13. Land tenure and tenure regimes in Mexico: An overview Willem Assies and Emilio Duhau 355 14. A case study on the implementation and outcomes of the 1992 reforms on the Mexican agrarian property institutions: An ejido in the frontier of the urbanisation process Emilio Duhau 387 15. Land reform and tenure security in China: History and current challenges Li Ping, Roy Prosterman, Ye Jianping, Wu Jian, Benjamin van Rooij 409 16. Land loss and conflict in China: Illustrated by cases from Yunnan province Benjamin van Rooij 435 17. Peri-urban land tenure legalisation: A tale of two districts Ye Jianping and Wu Jian 467 18. Land law in Indonesia Herman Slaats, Erman Rajagukguk, Nurul Elmiyah, Akhmad Safik 493 19. Land registration programmes for Indonesia’s urban poor: Need, reach, and effect in the kampongs of Bandung Gustaaf Reerink 527 20. The mystery of formalising informal land tenure in the forest frontier: The case of Langkawana, Lampung, Indonesia Myrna A. Safitri 549 References 575 List of Contributors 609 Index 611 1 Legalising land rights in Africa, Asia and Latin America: An introduction Janine Ubink The potential of legalisation of land assets Millions of people live and work on land that they do not legally own in accordance with enforceable state law. Secure land rights are a basis for household food security and shelter, and provide a safety net in case of unemployment or retirement. The absence of state recognition for local property rights is considered to affect people’s tenure security, which in turn impinges on people’s social-economic security and im- pedes development. People who are not secure in their property rights will not invest labour and other resources in the fertility and productiv- ity of their agricultural land, the improvement of their houses built on the land, and the infrastructure of their neighbourhood. Tenure inse- curity also hinders the provision of services and infrastructure by the government. Furthermore, people are unable to acquire formal loans, as they cannot use their land or houses as collateral. The lack of state- guaranteed documents moreover inhibits the ability to make transac- tions of land and houses with strangers who are not familiar with local ownership structures, which will restrict the land market. Traditionally, endeavors to legalise or formalise extra-legal land ten- ure have focused on state-led individual titling and registration.1 This was based on the assumption that individual property rights would im- prove access to credit and thus increase the ability of landholders to in- vest in their land. Furthermore, individual titles would remove disin- centives to invest through an increase of landholders’ confidence that they would not be deprived of their land. This paradigm was broadly supported by legal scholars as well as by those in other disciplines as diverse as economics and land surveying. There has been some success with titling and registration. Feder et al. (1988) and Li, Rozelle, and Brandt (1998) argue on the basis of data from Thailand and China that private property increased security, in- vestment, and productivity. Deininger (2003:47) has reported increases in land values and agricultural investment following registration pro- grammes in Nicaragua, Ecuador, and Venezuela. However, in several other countries, especially but not exclusively in Africa, no significant relationship was found between tenure regimes on the one hand and 8 JANINE UBINK security, credit use, and productivity on the other (Atwood 1990; Bruce and Migot-Adholla 1994; DFID 1999; Gerschenberg 1971; Migot-Ad- holla et al. 1993; Oue´draogo et al. 1996; Varley 2002). Registration programmes have proved to be ‘slow, expensive, difficult to keep up-to date and hard for poor people to access’ (Cotula, Toulmin, and Quan 2006:20). As a result, very little land has been registered, and ‘where titling and registration have been implemented, greater agricultural in- vestment has not necessarily materialised’ (id.). Empirical evidence shows that land titling and registration of private property can create, rather than reduce, uncertainty and conflict over land rights (Atwood 1990:663). ‘Latent disputes can flare up when local actors realise that registration will bring about final adjudication of land rights’ (Cotula, Toulmin, and Quan 2006:20). Unsuccessful attempts to substitute state titles for customary entitlements – and according to Cousins not one attempt has been fully successful – may even reduce security by creating normative confusion, which the powerful may take advantage of (Cousins 2000:171; cf. Atwood 1990:663-5; Bruce, Migot-Adholla, and Atherton 1994:260; Coldham 1979:618-9; DFID 1999:11; Lanjouw and Levy 2002). ‘Many registration programmes had negative distribu- tive effects, as those with more contacts, information and resources were able to register land in their names, to the detriment of poorer claimants’, and holders of secondary land rights are often expropriated (Cotula, Toulmin, and Quan 2006:20. See also Atwood 1990; Lund 1998; Migot-Adholla and Bruce 1994:20-1; Nyamu-Musembi 2006:19- 22; Platteau 2000; Van den Brink et al. 2006:12).2 Research has also shown that registration does not improve access to credit where high transaction and other costs hinder credit supply, and that many poor families are unwilling to borrow for risk of being unable to repay and losing the land through foreclosure (Cotula, Toulmin, and Quan 2006:20; Durand-Lasserve and Selod 2007:10, 12; Gilbert 2002:14-20; Home and Lim 2004; Van den Brink et al. 2006:13). Field and Torero even suspect that titling may reduce the banks‘ ability to foreclose as the latter could anticipate that governments who promote titling will also protect borrowers. This would deter them from lending (Field and Torero 2006, quoted in Durand-Lasserve and Selod 2007:25). The failures of state-led individual titling