Land, Development and Conflict in the Great Lakes Region

December 2017 Land, development and conflicts in the Great Lakes For a renewed engagement by the EU and Switzerland in land governance in Rwanda, Burundi and the DRC Table of contents

Table of contents 3 Part II 27 Part III 53 Executive Summary Land tenure in the Great Lakes: Evaluation two opposing visions 27 and recommendations 53 Introduction 9 Rwanda 28 Concerning the EU’s vision Objectives and methodology 10 and commitment in the field Land management from of land tenure 53 Objectives of this study 10 independence until the 1980s 28 In general 54 Methodology and limitations 10 Restructuring the legal framework To the French Development after the genocide 29 Agency, regarding The 2005 Organic Law the implementation Part I 12 and the Crop Intensification of the Voluntary Guidelines 54 Programme 30 Regarding interventions Land Governance 12 Land conflicts in Rwanda into land tenure by the EU Land conflicts 14 and resolution mechanisms 33 and Member States 55 Land grabbing: land returns Conflict resolution Regarding interventions to the heart of the development mechanisms 34 in Rwanda 55 agenda 15 Involvement from the EU Regarding interventions and Member States 35 by the EU delegation to Rwanda, Inequalities in access to land by DEVCO, SIDA and the Dutch for forest peoples and peasant The Democratic Republic development cooperation 55 women 17 of the Congo 36 Regarding the political Forest peoples: from legal dialogue of the EU delegation The legislative framework to Kigali on land issues 55 marginalisation to de facto and its shortcomings 36 inequality 17 Regarding DFID support Customary law and state law 37 for the land securitisation Peasant women programme 55 and land tenure: when norms The reform process institutionalise inequality 18 for the 1973 law 38 Regarding interventions Land grabbing 39 in the DRC 56 The EU’s responsibility Regarding interventions for sustainable and equitable Civil society initiatives 41 by the EU delegation land management 19 Interventions by the EU to the DRC and DEVCO 56 The origins of the consideration and Switzerland 43 Regarding interventions by the SDC in the DRC 56 by Member States Burundi 44 and the European Union Regarding interventions of land tenure in developing Land management: in Burundi 57 countries 19 conflicts and population Regarding interventions movements 44 The EU and France’s by the SDC in Burundi 57 commitment to the Voluntary Lack of consensus on CNTB Regarding interventions Guidelines and the sustainable and refugee land 46 by the EU delegation, management of land tenure Challenges of the land tenure DEVCO and GIZ in Burundi 57 systems 21 security programme 47 Regarding women’s rights to access land 58 The EU’s actions for the Land reform partners: initiatives sustainable management and stalemates 50 of land tenure systems 21 France’s commitment Swiss cooperation List of Abbreviations 60 to the Voluntary Guidelines 23 and the European Unione 50 The EU and land tenure: Civil society in Burundi 51 contradictions and limits 23

Cover photo: Onion field in the Mplangu valley, Mbanza-Ngungu. Credit: FAO (Bruno Kitaka)

2 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Executive Summary

Land tenure: a crucial issue for Africa tably so that these countries can access and the Great Lakes Region the financing from international donors The governance of systems of land ac- needed to implement their agricultural cess remains a central issue in the de- investment plans, though there are sig- bate on the development of the African nificant differences at national level. continent. Given that agriculture is the primary source of income for most Afri- Rwanda has moved towards a land can citizens, land governance remains a policy that aims to support a growing contentious issue. Indeed, the legacy of market-oriented approach to agricul- colonisation on the continent has had a ture. The Rwandan model, strongly sup- strong impact on how people can access ported by the United Kingdom (Depart- and use land. Contemporary land man- ment For International Development, agement systems are often the result DFID), the European Union, Sweden of a mixture of the systems inherited and the Netherlands, aims to relegate from colonialism and the norms that customary management patterns to the governed access to land in traditional past by centralising land ownership and pre-colonial customs. Even today, a management in the hands of the state. significant number of Africans still live The Land Tenure Regularisation Pro- and work on land managed according gramme in Rwanda has now provided to customary practices. Thevariety of 99% of land tenure users with a formal tenure systems creates significant con- lease title for their land. This impressive straints because, if not properly man- result is not free of errors. In particular, aged, it creates land insecurity that can the programme has failed to address lead to conflict. However, customary the lack of access to land for the most tenure often also offers opportunities vulnerable groups. The system in place, which may bolster local and commu- one of the most efficient and compre- nity dynamics. That said, the economic hensive on the continent, also suffers development models favoured by gov- from a lack of monitoring and updating: ernments and donors are also likely to a limited number of users contribute to affect land management patterns. updating the programme by communi- cating changes in the use or ownership Two major development models for of their land. The system remains too the agricultural sector are fighting over complicated, and often too costly, for a whether and how agriculture can meet large part of the population. In addition, the growing demand for food and func- the 2005 Land Law establishes a clear tion as an engine of pro-poor economic link between land use and development, development. The first model, inspired while adding additional pressures for by neoliberal thinking, supports maxi- small-scale farmers who either do not mum growth through the professionali- produce enough, are unable to fit into sation of agriculture. The second model the State’s agricultural modernisation supports peasant and family farming, programmes, or who do not have the operating on small farms. The position means to maintain their land according of the countries in the Great Lakes re- to the productivity criteria set by the gion in this debate is reflected in their government. agricultural policies. These are generally in line with the neoliberal model, no-

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 3. Meanwhile there are land tenure prob- of Congolese civil society. This legal lems that land securitisation has not uncertainty has often resulted in abuses been able to address, such as conflicts of power by local elites, as well as land involving women, for whom the right to grabbing, to the detriment of classes of inheritance has now been recognised, people with fewer means and networks. and conflicts linked to population movements due to internal violence in In the DRC, given the deadlock in the the country. reform process, it is often civil society that has undertaken initiatives to re- In the DRC, land is governed by a duce land insecurity. This is the case number of legal provisions regulating for civil society in North Kivu, which various sectors: the agricultural code, has produced a set of specifications for the mining code, the urban planning land reform addressed to national pol- code, and of course the 1973 land law. icy makers in Kinshasa. In South Kivu, All of the above contribute to land the NGO IFDP, together with its local management, and this can sometimes partners and the support of interna- lead to confusion and conflict. How- tional NGOs, has set up foundational ever, it is the land law that remains the programmes to secure land rights. basis of land management. The fundamental principle supported by this In Burundi, the majority of the popula- law is the exclusive state ownership of tion’s dependence on agriculture to sur- land in the DRC. The aim here is to put vive makes land tenure a crucial issue. an end to the duality in land manage- In addition, the scarcity of land and high ment systems that exist between state population growth make land disputes law and customary law, which is itself the most common cause for litigation. characterised by a variety of land access Both formal and informal mechanisms systems. However, the law lacks an im- for resolving these conflicts suffer from portant component: the management a lack of coordination and coherence, as and securitisation of these customary well as from a very high level of politi- rights, which govern almost 90% of cisation, which makes it impossible to the country’s land. This legislative void envisage efficient and sustainable ways raises serious concerns of insecurity of responding to these conflicts. Land amongst the rural population, and disputes have been exacerbated since especially amongst farmers who find the beginning of the last decade by the themselves having to claim the right to gradual return of refugees and displaced use their plots of land in the absence persons who left the country following of documentation proving their rights the political and ethnic conflicts of 1972 officially. and the civil war of 1993. The National Commission on Land and Other Prop- As a result of the numerous flaws in erty (Commission nationale des terres the land law and the many criticisms et autres biens or CNTB), in accordance that have been levelled at it, particularly with the Arusha Accords of 2000, was those concerning the growing number intended to resolve this issue in a spirit of land disputes, the President of the of equal treatment, promoting reconcil- Republic began a process to reform the iation. It was gradually politicised how- land law in 2012. This reform process ever, losing its legitimacy in the eyes of has followed a political position paper a large number of the population. This that sets out a roadmap for the process. illegitimacy is becoming increasingly The launch of the reform process was problematic, as the issues of refugees accompanied by a series of public con- and displaced persons in 1972 and 1993 sultations with civil society and experts have been compounded by the political on land issues. Political unrest and con- crisis of 2015, which led to the displace- flicting interests hampered the process ment of more than 400,000 people. of discussion and dialogue that promised to respond to the many demands

4 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES At the same time, the land reform that tified by economic investments from has been under way in Burundi since multinational companies, or by states 2007, and in particular the 2011 land looking for land to produce foodstuffs law resulting from it, is a major step or agrofuels. International civil society, forward in the field of land governance, meanwhile, began a discussion process despite some limitations that can be within the Food and Agricultural Or- observed. Nevertheless, it continues to ganization (FAO Committee on World present problems in terms of its imple- Food Security (CFS) in 2010, resulting mentation. Indeed, the implementation in a set of international guiding princi- of the reform - which, having not been ples governing the management of not taken up by the government, has mainly only land, but also fisheries and forests. been carried out by donors and involves The outcome of this discussion was, in considerable financial costs - is faced the 2012 enactment of the Voluntary with a serious problem of systemati- Guidelines on the Responsible Gov- sation and risks failure. Other aspects ernance of Tenure of Land, Fisher- of the reform, such as registration and ies and Forests (hereafter Voluntary proper governance of state-owned land, Guidelines). women’s inheritance of land, and land management more generally, remain to Since their launch, the EU has been at be addressed. the forefront of popularising and disseminating the Voluntary Guidelines. The involvement of the EU and its This is not surprising, as the principles Member States in equitable and contained in the Voluntary Guidelines sustainable land management are in line with the guidelines in the In 2002, the European Commission’s Commission’s 2004 land policy doc- 1 Directorate-General for Development ument: they provide for a variety of Zimmerle, Brigit (2012), When Development (DG DEV, now DEVCO) launched a approaches towards recognising land Cooperation becomes multi-stakeholder task force compris- rights, they pay particular attention to Land Grabbing. The Role of Development Finance ing experts from the Commission, key minorities, and they recognise the cul- Institutions, Fastenopfer/ experts and representatives of member tural and social aspects of land and not Bread for All, October 2012. states to produce guidelines that could only its economic value. The EU was In the pdf version, texts guide the action of the member states’ involved from the start of the discus- in this color are interactive development cooperation agencies and sion about the Voluntary Guidelines in of its own Directorate-General for De- 2009, and is currently a key player in velopment. This reflection culminated the development and dissemination of in the EU’s first policy paper on land the Voluntary Guidelines. tenure in developing countries, a com- However, this commitment often fails munication to the Council and Parlia- to translate into action for a number of ment outlining the EU’s approach to reasons. Firstly, the EU does not have land tenure policies in those countries. a specific and ambitious policy to curb The paper presented a nuanced point of land grabbing by European compa- view, clearly seeking to find a compro- nies. Secondly, the EU and some of its mise between the value and economic Member States use instruments that potential of land as a resource and the promote land grabbing, such as finan- multiple social functions it performs in cial instruments (Belgium, Netherlands, many developing countries’ societies. Germany, Sweden, Switzerland).1 Fur- In 2012, the discussion on land policies thermore, the EU intends to align its would again take centre stage in discus- action with - or even directly support - sions of development policies. In part, multilateral initiatives launched by this renewed attention was justified the African Development Bank (AfDB), by the increased attention paid by the the African Union (AU) and the New media to the numerous cases of land Partnership for African Development grabbing in Asia, Latin America and (NEPAD), the Food and Agriculture Africa in the first decade of the 2000s. Organization (FAO) or the World Bank Land grabbing in Africa is often jus- to promote agro-industry. However,

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 5. the agro-industrial sector, along with collects and updates information on the extractive sector, is one of the main land tenure and changes in land use. culprits of land grabbing in Africa. The German cooperation has also indi- This type of approach contradicts the rectly contributed to the success of the Commission’s 2004 guidelines, and it programme by supporting local NGOs is a far cry from the user rights-based involved in its implementation. Finally, approach promoted by the Voluntary between 2012 and 2017, the EU also Directives, a document that has been supported the agricultural programme approved by DEVCO. However, in two to the tune of 200 million euros to go of the countries in the Great Lakes re- towards food security, spread over five gion, Rwanda and Burundi, the EU is years. present and provides financial support for programmes to reform land man- In the Democratic Republic of agement systems. Although the goal of the Congo (DRC), the EU does these programs is land tenure security, not currently have a land tenure it is noted that they often stem from programme or land tenure policy. a pro-securitisation approach which Although the EU has been involved sees commercialisation as the ultimate in the sector in Burundi and Rwanda, goal of tenure security. In the DRC, the DRC is considered too large and where land issues play multiple roles in too complicated for a subject that is the emergence of both communal and “too political” to carry out structural armed conflicts, and where the eco- interventions. More than half of the nomic stakes associated with land use EU’s resources for natural resource are high, the EU does not intervene in management in the DRC (not including the land sector. the extractive industries sector) are channelled into the management of The involvement of the EU areas which are peripheral to the DRC’s and Switzerland in land tenure five protected natural areas. In the in the Great Lakes past, the EU delegation has invested In Rwanda, progress in terms of land money in the consultation process reform has been made possible thanks implemented by UN-HABITAT and to the presence of a highly effective gov- followed the debates on land law reform ernmental system, but also as a result of as well as the studies carried out by the financial and technical support of the World Bank. However, apart from the European Union (through its budget the highly contextual interventions support programme in Rwanda) and its related to the management of the member states. In fact, the programme areas surrounding the parks, there to create a national land database and appears to have been no intervention to the registration initiative launched in support the land sector. The same will 2010 by the government received vital be true in the near future. As already support from the British cooperation mentioned, the main reasons for this agency (DFID) through the Rwanda lack of investment in land are linked Land Tenure Regularisation Pro- to the difficult political situation in the gramme. The programme attracted the country, the ‘political’ nature of land attention of other international donors, sector reform and a certain fatigue with such as the European Union delegation, regard to the political process in the as well as Dutch and Swedish coop- DRC. eration agencies. The EU contributed 4 million euros to this programme, What is even more surprising is the lack intended for the technical training of of initiative in promoting and dissemi- the Rwanda Land Management and Use nating the ‘Voluntary Guidelines’ in the Agency. The programme also supported DRC. That said, the EU has funded the the establishment of the Land Adminis- creation of disclosure procedures and tration and Information System (LAIS), manuals for the Voluntary Guidelines, a national computerised database that and is funding the implementation of

6 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES outreach projects for the Guidelines, • The European Commission, and especially in countries that have expe- in particular DEVCO, to maintain rienced the phenomenon of land grab- and expand the scope of existing bing. The Swiss cooperation agency has programmes for the extension of been the only one to intervene directly the Voluntary Guidelines, with in the field of land tenure, providing a specific strategy for the Great financial support for customary rights Lakes region; protection initiatives set up by the IFDP • The European Commission and as mentioned above. the European Parliament to use existing political and institutional In Burundi, without donor support for mechanisms (e. g. the Africa-EU land registration processes, the current Partnership) to re-launch the results of the reform would not have policy dialogue on land tenure in been achieved. Among these donors is Africa, with particular attention first and foremost the Swiss coopera- given to European investments tion agency, which has been the lead and the protection of the rights of donor supporting land registration over indigenous peoples, women and the past ten years. Its programme ends minorities; in December 2017 and questions remain • The Agence Française de as to the future of land registration in Développement (AFD) and Burundi without further Swiss support. PROPARCO to systematically The European Union is currently sup- adopt the ex-ante analysis guide porting a state-owned land registration for agricultural investment pro- programme through the German coop- jects as a pre-evaluation tool for eration agency. This program also ends projects that have an impact on the in December, and the lack of ownership land sector; of this program, as well as the govern- • AFD to broaden the ex-ante ment’s hesitation to pursue it, is a con- analysis guide’s scope of use for cern for the future governance of these agricultural investment projects lands. by systematically applying it to any project involving changes in use, rights of use and land ownership, and not only to agricultural RECOMMENDATIONS programmes.

In general Regarding land tenure issues Generally speaking, EurAc calls on : in Rwanda • The European Commission, EurAc calls on the DFID to and in particular DEVCO, to • Carry out a thorough, independent consider integrating the principles and publicly accessible impact contained in the Voluntary assessment of the land regularisa- Guidelines into the heart of the tion programme. This should also Union’s development policies. This contain an impact assessment on means integrating them into any the livelihoods and food security land intervention project set up by of small-scale agricultural produc- European cooperation; ers and should not confine itself to • The European Commission, and accounting for land registered as in particular DEVCO, to take the an indicator of success. initiative in establishing binding legislation applicable to European EurAc asks the DFID, DEVCO, SIDA companies, which provides for and the Dutch development coopera- mechanisms for due diligence in tion to the event of large-scale land in- • Continue to support the updating vestment, based on the principles of the LAIS and the training of of the Voluntary Guidelines; land office managers;

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 7. • Support efforts to vulgarise the rights and the organisations that land law, especially with regard to implement them; women’s right to inheritance; • Support similar projects in other • Support the Rwandan government parts of the DRC, so that the varie- in the training and capacity ty of experiences can improve their building of mediator committees sustainability by being tested in (abunzi) as a mechanism for re- culturally different areas. solving conflicts at the grassroots level; Regarding interventions in Burundi • European donors should also take EurAc calls on the SDC to ownership of the evaluation of the • Maintain its involvement in securitisation programme supported Burundi and, above all, to by DFID in order to develop a engage in capacity building for reflection on the advantages and decentralised actors, without constraints of programmes with a which the work carried out by the securitisation-based approach; programme in recent years risks being lost; EurAc invites the EU delegation in • Make feasibility studies, evalua- Kigali to tions and assessments of its expe- • Make any EU support to Rwanda riences available to the Burundian for the management of the land government. These documents will tenure system or access to justice enable the Burundian government contingent upon a public and to assess the feasibility of systema- independent inquiry into recent tising land offices in Burundi. cases of land rights violations by military and police authorities. EurAc invites the EU delegation to Burundi, DEVCO and GIZ to Regarding interventions in the DRC • Continue working in the field of EurAc asks the EU delegation to the land tenure by supporting civil DRC,DEVCO and GIZ to society organisations, particu- • Support civil society-led initiatives larly the Synergy of civil society to secure customary land rights, organisations in Burundi, in their particularly as they have the work on reflection, advocacy and potential to fit into the provincial the development of alternatives legal framework, which is likely for conflict resolution and land to ensure their sustainability over management in Burundi; time; • Continue to push the Burundian • Support initiatives to produce government to approve its report provincial terms of reference and within the scope of the state land create discussion forums on the re- inventory and to take legislative form process. Trials like those run measures to protect these areas of by the North Kivu Consultative land; Committee should be supported • Put pressure on the Burundian with the aim of developing them, government to ensure that, in as they could serve as a future accordance with the Burundian basis for innovative initiatives in constitution and the Arusha land governance; Agreements, Burundian • Commit to spreading and vulgaris- women are granted their consti- ing the principles of the Voluntary tutional right to inheritance and Guidelines in DRC. succession; • EurAc calls on the EU to support EurAc calls on the Swiss Development Burundian civil society initiatives Cooperation (SDC) to to raise awareness of the impor- • Continue its support for initiatives tance of women’s access to land. aimed at securing customary land

8 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Introduction

he African Great Lakes region, to historical shortcomings, notably in particular Burundi, Rwanda regarding the insufficient regulation of and the Democratic Republic customary land tenure, which governs Tof the Congo (DRC), is once 80% of Congolese land. In Burundi, again experiencing a period of political the efforts made in recent years by civil instability, security crises and demo- society, donors and the government are cratic gridlock. This new crisis period currently collapsing under the weight has emerged as the latest manifestation of a political crisis of democracy which of long series of crises of political and shows no sign of weakening; rather it democratic legitimacy. A region which is responsible for a steadily increasing until recently seemed to be on a path number of refugees. On the other hand, towards lasting peace and political Rwanda has enjoyed great success stability now appears to have once in establishing genuine land tenure more hit an impasse. reform, and the majority of Rwandans now possess a title of ownership (or These new conflicts have not sprung rather a long-term lease agreement). from nowhere; rather they are often The results achieved in Rwanda have the most recent manifestations of long made the reform process in the land running historical trends, the result of a thousand hills a model worth of a series of unaddressed (or poorly following by other African states. addressed) problems which can ulti- However, the Rwandan model is not mately be traced back to a fundamental free of faults; rather it has a several issue in the development process of from which lessons can be learned in each state: the usage and distribution order to improve future interventions. of natural resources. It is true that land tenure and land Aware of the crucial role that land management fall within the fundamen- tenure plays in the dynamics of the tal responsibilities of the state and that region, and of the fact that peace and the ultimate responsibility for estab- development in the Great Lakes will lishing fair, equitable and sustainable be impossible without sustainable systems of land tenure lies with nation- and equitable land management for al governments. However, it is equally the citizens of the three countries, true that the European Union and its six EurAc member organisations - Member States, in their role as prin- the Justice & Peace Commission cipal donors at global level, and within Belgium, CCFD - Terre Solidaire, the scope of its renewed partnership HEKS/EPER, Broederlijk Delen, with the African Union, can and must Entraide & Fraternité and Fastenopfer - play a crucial role in establishing requested that EurAc produce this sustainable land tenure in Africa and in report. the Great Lakes region. Political instability cannot be an excuse for avoiding The situation regarding land tenure the challenge of land tenure, as despite varies greatly in the three countries. a lack of state engagement, land tenure In the DRC, the state seems to have remains a topic of lively discussion stalled in the process of reforming land amongst civil society organisations in tenure with the intention of responding the three countries, who do not lack for

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 9. innovative solutions and who are able and Switzerland ensure the coherency to guarantee, at least in the short term, of their land policies in the Great that land tenure rights are secured, Lakes region, whether across whether through legal, customary or sectors (peace building, governance, informal channels. agriculture, environment), levels of This report examines all of these government (EU/Member States; issues. It is divided into three parts. Europe Aid and other DGs), or States The first part presents an overview of (Member States; Switzerland)? the concepts of land governance, and 4) How do the EU, its Member States a brief look at the land situation in the and Switzerland take into account Great Lakes region. The second part the impacts of land tenure, particu- focuses upon Rwanda, Burundi and larly for the most vulnerable popula- the DRC, for which we cannot hope tions, in the policies they support and to provide a complete overview of the implement in the Great Lakes region? challenges faced in each country here but we highlight the key elements, the In answering these questions, EurAc crucial issues and how the intervention has sought to understand how of donors in Europe and Switzerland European and Swiss interventions in can play a role. Finally, the third part the area of land tenure fit into social, presents EurAc’s analysis of involvement cultural and legal frameworks in areas from the EU, its member states, and featuring complex social dynamics and Switzerland in land tenure in the Great complicated recent histories. Although Lakes. This is followed by recommen- development assistance interventions dations for a more thoughtful and can support and strengthen local robust engagement in the future. processes, they may also contribute to the dynamics of conflict or fail to take sufficient account of local dynamics. For this reason, the ultimate goal of our OBJECTIVES research work was to produce practical AND METHODOLOGY recommendations for European and Swiss decision-makers. Objectives of this study Methodology and limitations This study was initiated by six This research is the product of close members of the European Network for collaboration between EurAc, its mem- Central Africa (EurAc), with the aim bers and many of their partners in both of better understanding land tenure North and South Kivu (international issues in the Great Lakes region. In organisations, universities, NGOs, etc.), particular, it seeks to analyse how these Rwanda and Burundi. land tenure dynamics, often a source of conflict and crucial for economic This research followed an inductive development, are influenced by the approach that used field research, involvement of the EU and its Member from which the data was constantly States as donors of development aid. compared with the abundant literature The research, and the following report, in the fields covered by this report. was guided by four key research Indeed, EurAc’s expertise on land questions: tenure and EU programmes in Great 1) What is the EU’s regulatory vision for Lakes Africa has identified a large land tenure in Africa generally, and body of literature in these various in the Great Lakes region of Africa in areas, which has in turn enriched this particular? report. During the period of April to 2) To what extent do the EU Member August 2017, we also organised several States and Switzerland fall within or field trips to Burundi (Bujumbura, deviate from this regulatory vision? Makamba and Cibitoke), Rwanda 3) How do the EU, its Member States (Kigali, Rusizi, Rwamagana) and the

10 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES DRC (Kinshasa, Goma, Bukavu). A total of 35 semi-structured interviews were conducted with international organisations, NGOs and local civil society organisations working in land and related fields. We also had the opportunity to discuss land issues with national, provincial and local authorities in these countries. We also used data collected by the two senior editors, Giuseppe Cioffo and Aymar Nyenyezi, during their research work on land issues in the region.

Nevertheless, there are some limitations to this report. We will make mention of two here. Firstly, the geographical scope of the research was limited, especially in the DRC. The available resources did not allow us to broaden our analysis beyond the South and North Kivu and Kinshasa. This is a considerable limitation, given the size of the DRC and the high degree of diversity in the country. However, the two Kivus are also amongst the Congolese provinces which historically have a very active civil society in the land sector.

Secondly, as some topics were more relevant than others in different contexts, we had to focus our analysis on some themes rather than others. Thus, in Burundi, the needs of the context led us to take a deeper look at the discussions on refugee land at the level of the CNTB and the reform underway since 2008. In the DRC, current civil society initiatives in relation to the ongoing reform process and issues of problematic overlapping between land rights (legal and customary) and other legislation (mining/forestry) are made the focus of our discussions. The same has been true of Rwanda with respect to land securitisation issues, mediator committees and the links between land tenure and agricultural reform.

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 11. Part I

and tenure is a fairly broad field, and civil society to carry out their involving a wide range of (state respective activities in the pursuit of and non-state) institutions, ac- common economic and social develop- Ltors and interests. It is therefore ment goals. impossible to analyse the context of The technocratic nature of the word land tenure in the Great Lakes region ‘governance’ is subject to fierce debate without introducing the fundamental as it tends to depoliticise the man- concepts that drive discussions on the agement of public affairs. As in other subject and the regulatory approaches areas concerning the management of that guide the actions of the actors natural resources, in the field of land concerned. The purpose of this first management governance is determined part is therefore to introduce the key by politics; that is to say a given vision concepts for discussing land tenure. It of the world and of society, the power is divided into three sections. The first struggles and imbalances operating introduces the concepts of governance, behind the scenes, and the measures land conflicts and land grabbing. The taken to overcome them. Land gov- 2 second presents the specific challenges ernance is also a result of land policy, G. Courade, A. Osmont, É. Le Bris, B. Crousse (1991), faced by marginalised groups in the which is itself derived from a vision Stimuler les politiques land sector in the Great Lakes region. of society which different actors are foncières à l’échelle internationale, L’appropriation de la Finally, the third part presents the seeking to make reality. terre en Afrique noire, ch.22, vision of the EU and its Member States pp.233-257. with regard to land tenure in develop- In Africa, to give a broad example, a ing countries. series of land policies have historically been established: 2

LAND GOVERNANCE • The colonial land policy of France, which sought to generalise private ‘Land governance’ indicates the range ownership, or even the colonial of rules and collective processes, policy of Belgium which aimed for a formalised or otherwise, via which dual system distinguishing between relevant actors participate in the the land of the local people which decision-making process for and the was governed by customary law and implementation of the public actions colonial land governed by modern which impact land management. In law; a democratic society, governance is intended to serve ‘the common good’. • The land policies of the African Such a term describes the ability of States which gained independence, the State to provide for citizens’ basic which are characterised by aiming needs, a civil society which participates for national integration and eco- in the decision-making process, and nomic development on the one hand, the rules, standards, laws, procedures while seeking to reinforce state and behaviours which relate to the intervention on the other. common interests of the State and it citizens. Equally, this refers to International land policy, promoted participative, responsible and effective by development donors, is often based management allowing for the State around a liberal dogma promoting

12 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES internationalisation, privatisation, access to land for the rural poor is and regulation favourable to national often based on custom and traditional and foreign investors and suppliers of practices. Land tenure systems such capital. 80% of agricultural rural land as those in the DRC and Burundi is not officially registered in Africa,3 formally recognise the jurisdiction of which encourages the adoption of customary law to govern collective new legal frameworks intended to rights concerning grazing land, as well streamline the occupation of land, fa- as exclusive private rights concerning vouring investments in land by foreign agricultural and residential plots. In businesses. Thesereforms consist of other words, the population generally registering areas of land, making them turns to customary chiefs or elders to marketable and mortgageable. This address issues regarding the ownership trend is supported by international or the use of local land. The World financial institutions, particularly the Bank also recognises that it is possible World Bank, with the agreement of na- for customary and informal land tional authorities. Private investments rights systems to ensure full respect 3 6 Lottier, Anthony (2013), and land reforms in the agriculture and for property rights. In practice, many Accaparement des terres africaines: extractive sectors are in some cases land conflicts are fuelled by the failure La question foncières devrait être leading to land grabbing, depriving of legal frameworks, particularly in une opportunité, Radio France Internationale communities of their vital resources the management of land uses that are 4 Pèlerin, Émilie; Mansion, to the detriment of local development sometimes incompatible with each oth- A. and Lavigne Delville, and food security. As a result, rural er (livestock vs. agriculture), and also P.(2011), Afrique des Grands Lacs : droit à la terre, droit populations are being weakened and as a result of the coexistence of state à la paix. Des clés pour migration towards urban areas has and customary law. The juxtaposition comprendre et agir sur la sécurisation foncière rurale, increased. of these rights sometimes leads to Coll. Études et Travaux, competition between formal land titles online series n 30, co-publication with CCFD–Terre Currently nearly 80% of disputes issued by the administration and deci- Solidaire 5 awaiting judgement before the court sions taken by customary authorities. Ibidem 6 and tribunals in the Great Lakes World Bank (2007), region concern access to land. The This confrontation between de jure Agriculture for Development. World Development Report, same is true of conflicts brought to the rights (existing under formal laws) and World Bank, Washington. de facto rights (existing in practice 7 informal conflict resolution mech- FAO (2002), Land Tenure and anisms typically found in rural areas through custom) often occurs in con- Rural Development . 8 (family councils, village elders councils, flict-ridden or post-conflict areas, with Nyenyezi, B. A., Panait churches, local associations, NGOs).4 the arrival of displaced persons some- O.M.(2014). « Dispositif », du jeu au sens. Programme This situation is in part due to the fact times giving rise to considerable uncer- de sécurisation foncière ou that the legal frameworks regarding tainty as to what rights are or should instrument du pouvoir-savoir au Burundi ? , in S. Marysse, land have long been imprecise and in- be held by newcomers or residents F. Reyntjens & S. Vandeginste effective, increasing land insecurity as already in the area.7 The complexity of (ed.), L’Afrique des Grands 5 Lacs. Annuaire 2013 – 2014, a result. The orthodox legal solutions the situation and the risks of litigation L’Harmattan, Paris p.77-99. applied to these problems in the 1970s can become even more acute when, for and 80s strengthened institutional example, land is allocated to foreign pluralism, which has exacerbated companies or declared to be publicly conflicts. This is particularly the case owned without the prior consultation in the DRC, where the 1973 Land Code of customary owners (whose rights recognises multiple claims to land are nonetheless not considered illegal). ownership, which in seeking to include Local communities are struggling to everybody, satisfies nobody. assert their rights acquired according to custom, as formal title deeds usually The legal frameworks in the countries take precedence over others in court. of the region are characterised by the often chaotic coexistence of these new Since the 2000s, legal reforms have legal norms stemming from formal largely evolved towards a more rapid law, which are supposed to rationalise and decentralised land management land use and customary law. Indeed, system.8 However, this has taken

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 13. very little account of the institutional land belonging to those returning to innovations of local actors, which raises Burundi and the so-called vacant land questions about their sustainability or and other natural resources in the 9 effectiveness. In Rwanda, the country DRC) regularly lead to land grabbing which has advanced furthest in the by elites and the creation of a class of reform process (see part 2, para. 4), the landless peasants.14 questioning of local arrangements and the brutal implementation of a new Land conflicts legal framework since 2005 continues to According to the Organization for increase latent discontent and conflicts. Economic Cooperation and In Burundi, the decision in favour of an Development (OECD), the term land 10 overly technical legal framework in conflict refers to all aspects of human place since 2011 makes its effectiveness contestation over land resources. In 9 Mudinga, E., Nyenyezi, virtually impossible, while at the same Africa, land conflicts include territorial B. A. (2014). Innovations time delegitimising local mechanisms conflicts (for example between herders institutionnelles des acteurs 11 non étatiques face à la Crise for conflict resolution. In the DRC, and farmers), agrarian land disputes foncière en RDC : légitimité, “the entanglement of legal systems (fighting for the possession of agricul- efficacité et durabilité en Reyntjens, F. including land law, agricultural code tural land) and disputes over the use of question, in 15 & Vandeginste, S. (éds.), and customary code needs to be mineral and forest resources. These L’Afrique des Grands Lacs. Annuaire 2013-2014, clarified and a land management plan land conflicts can be sorted into two L’Harmattan, Paris, p.177-197. established. However, the law for land macro-categories. First, socio-environ- 10 Kohlhagen, D. (2011). reform is not progressing and civil mental land conflicts, which are In Quest of Legitimacy: 12 Changes in Land Law and society participation is limited.” The linked to the impact of intensive ex- Legal Reform in Burundi, suspension of the work on land reform ploitation of natural resources, often as in Ansoms, A., Marysse, S., Natural Resources and Local which began in 2012 leaves an outdated a result of industrial activities or of the Livelihoods in the Great Lakes legal framework in place, which is con- building of transport infrastructure (ie. Region of Africa: A Political Economy Perspective, fronted with local palliative actions that land grabbing, and health, environ- Palgrave Macmillan, London. are unsustainable and without a legal mental, socio-economic and cultural 11 13 Nyenyezi and Panait, Ibid. basis, legitimate though they may be. impacts). They therefore include some 12 Civil Society Dialogue of the agrarian territorial conflicts Network, Mise en œuvre de There is also a need to question (those related to the presence of large l’Accord-cadre pour la paix, la sécurité et la coopération the effectiveness of customary law companies) and conflicts over the use pour la RDC et la région: in resolving land disputes within of mineral, oil and forest resources. quel soutien la communauté internationale, en particulier communities. This effectiveness varies, l’UE, peut-elle apporter à particularly depending on the context Then there are la société civile congolaise ? community land Report from the meeting on of the local community, as in North disputes. These land conflicts are the 18th March 2014, Kivu, for example, where customary often interpreted as a consequence of 13 Mudinga and Nyenyezi, power often fuels community rivalries increased competition for control and Ibid. 14 rather than alleviating them. It also management of natural resources. But Ibidem 15 varies according to the individual they also reveal the social dynamics Richards, P. (2013), “Land Conflicts”, in OECDC, Conflicts capacity, leadership and legitimacy of that cut across African societies, over ressources and terrorism. Two the customary leader, who will ensure particularly with regard to identity facets of insecurity that his decisions are respected in and ethnic issues. In the Great Lakes some areas, while they are perverted or region, these conflicts underscore the ignored in others. need for clarification and change, both in terms of the legal aspect of the land The interplay of power relations engen- tenure system and the organisation of dered by these legal uncertainties often land management. The models cur- leads to land grabbing by local and rently in place - whether regulatory or national elites as well as by interna- traditional - are no longer appropriate tional entrepreneurs, thus constituting to contemporary land tenure issues. a serious potential for conflict: in the One of the major challenges is there- three countries, government decisions fore to ensure that people have the (concerning the green revolution opportunity to live together, and to use in Rwanda, the management of the and develop the available resources at

14 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES their disposal. When this isn’t possible, to the refugee problem were first put competition for natural resources gives in place in the mid-1970s and then in way to broader forms of conflict. the early 1990s, but these were without success.17 It was necessary to wait Indeed, land conflicts have played until the Arusha Peace Agreement a key role in the armed conflicts in 2000 to find political solutions and civil wars experienced by the which nonetheless experienced great countries of the Great Lakes region in difficulty in being implemented. the 1990s and 2000s, and they have Equitable solutions were proposed by intensified over the past decade as the National Commission on Land and refugees from the three countries have Other Property (Commission Nationale 16 Leegwater, M. (2011). returned to their respective states. To des Terres et autres Biens or CNTB) Sharing Scarcity: Issues of begin with Rwanda’s case, part of the before being suspended by the ruling Land Tenure in South-east Rwanda, in A. Ansoms, Tutsi population fled to neighbouring party. The ethnicisation of land conflict S. Marysse (ed), Natural countries during the period 1959 to 1963 resolution by the CNTB then led to Resources and Local Livelihoods in the Great Lakes in response to the conflict between a real political crisis in 2012 and the Region of Africa. A Political the Hutus and Tutsis. When they left, politicisation of the work done by the Economy Perspective. New York/ Basingstoke: Palgrave their lands were either occupied by the CNTB consequently resulted in land Macmillan, p. 104-122. remaining population or “confiscated grabbing by the elites. 17 16 Nyenyezi, B.A., Ansoms, and reassigned by the authorities”. A. (2013). Dynamiques de pouvoir et d’autorité dans Nevertheless, the change of political In the case of the eastern DRC, the l’arène foncière au Burundi : regime in 1994 encouraged their same problem first arose in 1996, when, instrumentalisation du pouvoir étatique, in Marysse, return. Once they were back in the during the war, entire populations had S., Reyntjens, F., Vandeginste, country, their need for land could not to either move within the country or S. (ed.), L’Afrique des Grands Lacs. Annuaire 2011-2012, be met in accordance with the Arusha take refuge in neighbouring countries Paris: L’Harmattan. Peace Agreement and the so-called such as Burundi, Rwanda and 18 18 Ansoms, A., Hilhorst, “alternative land” state policy. As a Tanzania. There have been several Th. (ed.) (2014). Losing Your Land: Dispossession in the result, many of the Tutsis who had waves of population displacement as a Great Lakes, Boydell & returned to Rwanda began to settle in result of shifting fronts in the war as Brewer, USA. 19 the territories of the Hutus who had well as multiple attacks by militias or These wars took place 19 during the periods of 1996, fled the country in 1994. This was the rebel groups. Upon returning, these 1998, 2001, 2004, as well as source of many social tensions and land displaced populations have found their some conflicts which are still ongoing in certain parts of conflicts when the Hutus returned from lands occupied by other people who eastern DRC. 1996 onwards. The land redistribution have taken them over or acquired own- 20 Nyenyezi, B. A., Ansoms, solutions proposed by the Rwandan ership of them via the government or A. (2012). L’arène foncière 20 au Burundi : comprendre government have not solved this prob- third parties. In the DRC, the prob- les rapports de force, in : lem. Cases of illegal expropriations and lem of refugees and displaced people Marysse, S., Reyntjens, F. & Vandeginste, S. (ed.), L’Afrique seizure by political elites have provoked has been exacerbated by multiple waves des Grands Lacs. Annuaire discontent, with complaints often being of Rwandan refugees who have been 2011-2012, 2012, L’Harmattan, suppressed by local authorities. coming to the DRC since the 1950s, Paris, p. 49-72. 21 occupying indigenous peoples’ lands This is the case for the Kyniarwanda speaking The same situation concerning refugees by either taking those left vacant by populations now living in has occurred in following two displaced populations or instead appro- eastern DRC (banyamulenge), Burundi for example, or different main waves of population displace- priating lands occupied by indigenous groups of Rwandan speaking ment, which corresponded to two ma- peoples.21 While there are hardly any Hutus and Tutsis living in the same area. jor periods of conflict: 1972 (the begin- State structures dealing with this prob- ning of politico-ethnic conflicts) and lem, the issue is being compounded by 1993 (the beginning of the civil war). government injunctions for the occu- In this case, it was mainly the Hutus pation of so-called “vacant” land, which who fled, and their lands were occupied favours land grabbing. The solutions by neighbouring Tutsis or internally proposed by NGOs involved in the displaced persons acting of their own management and resolution of these initiative or with the agreement of the conflicts are continually invalidated by administration. Several legislative and state structures, raising the question of regulatory attempts to find a solution their sustainability.

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 15. Land grabbing in the Great Lakes: the DRC at the forefront

The DRC is certainly the Great In the mining sector, there are no In the forest sector, the DRC Lakes country most affected by fewer than 102 companies and 75 has more than 45% of the African land grabbing. It has a total area of private investors who have been equatorial forest and 6% of the agricultural land that is unparalleled granted one or more exploration world’s tropical reserves, containing in Africa, as only 5-10% of its 80 or mining permits by the Kinshasa rare wood varieties. According to million hectares of arable land authorities, a large part of which are Global Witness, there are currently are officially used. It is thought to concentrated in Katanga province. 57 industrial forest concessions in be the third African country most These figures certainly do not reflect the DRC, totalling 10,840,328 ha. affected by large-scale land grabbing the scramble for mining stocks, with SODEFOR, the largest forestry (3 million ha), behind Madagascar some sources counting more than company in the DRC, has concessions (3.7 million ha) and Ethiopia 300 mining operators. The largest totalling close to 2.3 million ha. (3.2 million ha). According to the of these mining projects involve According to Global Witness, «the Natural Resources Network (Réseau de companies appropriating thousands largest companies - both in terms ressources naturelles or RRD), the vast of hectares of land, which are often of concessionary forest area and majority of Congolese soil and subsoil partly inhabited and used by local harvested timber - (...) have all been is already under concession.. communities (for agriculture or small- identified as having committed the scale mining). The latest mega- most serious violations of [Congolese] In the agricultural sector, 2,850,356 ha mining project, the Kamoa project in law.» This is in spite of a moratorium were recorded by the Landmatrix Katanga, awarded to Ivanhoe Mining on new forest concessions which was project. The Congolese Government of Canada and Zijin Mining of China, introduced in 2002 and renewed in is also considering the creation of new involves the world’s largest remaining 2005. In March 2016, the Congolese agro-industrial parks, for which copper reserves and will occupy an Minister of the Environment, Robert 3 sites have already been identified: area equivalent to that of the city of Bopolo, declared that the authorities 53,000 ha around Nkundi (Cataractes London, covering an area of nearly intended to «reopen the issue [of district, Bas-Congo), 10,000 ha on 400 km². ending the moratorium] in the the Bateke plateau (Kwango district, [financial] interest of the Republic». Bandundu), 40,000 ha around The World Bank itself recognises that Kimbinga (Kwilu district, Bandundu). improving the «business climate» There are also plans to open five and building infrastructure and roads other sites for investment in Katanga in the DRC «could lead to increased (Kalemie, Kasese), Maniema (Kindu deforestation». and Kasongo), Équateur (Bumba, Businga) and in Orientale Province.

Land grabbing: land back at the bilateral development cooperation heart of the development agenda agency (French Development Agency), For over 10 years, land grabbing “commercial pressure on land” for has been one of the major problems the International Land Coalition faced by our global development (ILC), “large-scale commercial land model. These problems usually revolve transactions” for the International around issues of climate change, food Development Research Centre (IDRC), sovereignty and human rights. Seizure and “land grabbing” for peasant of land is not a new phenomenon, but organisations. 22 it has recently experienced a sharp Jean-Paul Charvet, “Land grabbing ou accaprement de and sudden acceleration, making When discussing land grabbing, the terres agricoles”,Encyclopædia agricultural assets, especially land, “a use of the term “large-scale” is open to Universalis strategic resource on the same level as debate, in particular because it refers oil or certain minerals”.22 to different realities depending on the There areseveral terms for land local context: “large-scale” may refer to grabbing, depending on the type of 30,000 hectares in Bandundu (DRC), actors using the land and the point but to 5 hectares in Burundi or coastal of view they express. These include South Kivu (DRC). It is therefore the following: “large-scale land important that the definition adopted acquisition” for the World Bank, “large- be as broad as possible to encompass scale appropriation” for the French the greatest number of situations

16 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES reflecting the issue of “land impacts”. of legislation in the region has not Land grabbing includes acquisitions taken into account the customary law and leases that share one or more of of these peoples in almost any area, 23 the following characteristics: they including land tenure. This has had are contrary to human rights; they are a number of discriminatory conse- not based on the free, prior and in- quences for these people, including formed consent of affected users; they inequalities in access to land. This are not based on careful assessment, process spans the pre-colonial, colonial or do not consider social, economic and postcolonial periods. and environmental impacts; they are not subject to transparent procedures First, the various systems of customary setting out clear and binding commit- law that prevailed during the pre-co- ments on activities, employment and lonial period did not take into account benefit-sharing; or they are not based the land tenure practices of indigenous on effective democratic planning, peoples. The customary systems that 23 independent oversight and meaningful governed access to land or the land ten- Tirana Declaration, signed by participation. ure of indigenous peoples at the time the Assembly of members of the International Land “were collective in nature, organised Coalition, attended by civil around the rights of specific clans and society organisations and international organisations, based on concepts of seasonal land including the World Bank, on INEQUALITIES IN ACCESS use covering vast tracts of land largely the 27th May 2011. 25 24 TO LAND FOR FOREST PEOPLES covered by forests”. However, as land Amani J.P. (2009). AND PEASANT WOMEN « Les droits fonciers et and forests were conquered by other les peuples des forêts ethnic groups, forest peoples were d’Afrique. Perspectives historiques, juridiques In the Great Lakes region of Africa, forced to integrate into land tenure et anthropologiques. N°1, inequalities in terms of accessing, systems that did not account for their Evolution historique du droit foncier et son incidence sur la controlling and using resources, in customary norms. Throughout political propriété foncière des Batwa this case land, frequently affect forest and historical developments that have au Burundi », Report by the Forest Peoples Programme, peoples and peasant women. These seen the affirmation of a number of United Kingdom; Huggins inequalities have been gradually intro- customary rights according to peoples’ Ch. (2009). « Les droits fonciers et les peuples des duced through land management rules cultural identities, indigenous peoples forêts d’Afrique. Perspectives that discriminate against these two have simply been forced to conform to historiques, juridiques et 26 anthropologiques. N°4, Les social groups. Some of the determining the prevailing general custom. lois foncières historiques et factors of these inequalities are pri- contemporaines et leur incidence sur les droits fonciers marily the result of legislative, political Second, during the colonial period, his- des peuples autochtones au or cultural constructs, as opposed to tory was to repeat itself when it came Rwanda », Report by the Forest Peoples Programme, economic factors. to the land rights of forest peoples: May 2009. 25 once again, their rights were not taken Huggins 2009, Ibid. Forest peoples: from legal margi- 26 into account in successive reforms. Acquier J-L. (1986). Le nalisation to de facto inequality Let us take the cases of Rwanda and Burundi, Les Parenthèses, Several social groups belonging to Burundi. Germany, which colonised Marseille, France. the category of ‘forest peoples’ are these countries towards the end of the scattered along the equator in Central 19th century, maintained traditional Africa. They can be found in Gabon, institutions and did not modify land Cameroon, Burundi, Rwanda, the DRC rights. Consequently, throughout the and Uganda. These groups are mainly German colonisation, which ended in hunters, gatherers and fishermen living 1916, an indirect administration policy in forests and around the Great Lakes was promoted. The Mwami and its rep- in Africa; they are generally considered resentatives were responsible for man- to be indigenous people (called Batwa aging the land in these countries, with or Bambuti).24 It is believed that they a few exceptions. When Rwanda and were joined and then taken over by Burundi were attached to the Belgian the farming and pastoral peoples who Congo on behalf of Belgium in 1916, the arrived in the region as early as the situation changed completely and the 5th century BC. The development lives of forest peoples living in these

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 17. territories were intertwined. Ruanda- and survival of the family as a whole, Urundi was subject to the laws of the female children were not thought to Belgian Congo. This was to have very belong to their families of origin. Girls negative impacts on the land rights of were destined for marriage, to leave forest peoples in all three countries. their family homes and then belong For example, in 1925, an ordinance to another family. This is one of the required customary authorities to main reasons why customary laws in make wetlands and swamps available this region have not allowed women to all farmers, a rule that would prove to inherit land; so that they cannot problematic for forest peoples. Several bring their fathers’ land holdings into other colonial legal texts went on to the families of their husbands. By systematically introduce problems of excluding women from access to land, compatibility with the traditions of in- customary institutions have officially digenous peoples, but it was the forest institutionalised gender inequalities, peoples who would suffer the most. making women more vulnerable, poor These laws included, for example, the and economically dependent. principle of vacant land, the prohibition of inhabiting newly protected areas, Throughout the colonial period, set- restrictions on hunting, failure to take tlers did not promote equality between collective ownership into account, etc. women and men for several reasons. Not only was this issue still very con- Third, contemporary land rights have troversial in western society at the time 28 27 not done justice to dispossessed forest (Belgian and German society in this Couillard V., Gilbert J., Kenrick J., Kidd Ch. (2009). peoples as reforms in these three coun- case), but there was also a clear lack of « Les droits fonciers et les tries have progressed. The approach interest in women’s emancipation at a peuples des forêts d’Afrique. Perspectives historiques, ju- introduced by colonial legislation time when the links between the status ridiques et anthropologiques. persisted after independence. The of women and underdevelopment were Aperçu général : analyse et contexte ». Report by the commodification of land and the pro- not yet clear. For women, as well as Forest Peoples Programme, tection of the environment featured as men, education was mostly provided by United Kingdom. 28 part of earlier colonial reforms and did religious figures. These were convinced Gubin E., Vogel-Polsky E. (2007). Une femme de not take into account the land tenure that gender inequalities were part of a conviction, Brussels, Institute systems of these peoples. As a result, divine plan, contributing to women’s for the Equality of Women and Men. during the postcolonial period, forest persistently inferior status during col- peoples were not only expelled from onisation. The situation was similar in protected areas without compensation, the three countries of the Great Lakes they were also forced to pay to extract region, which were then one and the clay from the marshes.27 same country, colonised by Belgium from 1916 onwards. Land tenure was Peasant women and land tenure: no exception to this rule, as we will see when norms institutionalise below. inequality Some women in the region can now Finally, as regards the similarity of the enjoy equal rights to man (e.g. since post-colonial political and institution- 1999, Rwandan law has granted women al/legal process, the situation of women the right to inherit land), but generally remained the same in the aftermath speaking, things have not changed of independence, during the one-party much in terms of access to land. The period - which ended in the 1990s - traditional society of this region was and during the periods of political structured according to a very elab- transition that followed. The political orate patriarchal system. From birth, and legislative changes that took place since girls and boys were not seen as in the 2000s favoured a certain degree equals, they were treated and socialised of progress in relation to women’s differently. While male children were position in society often accompanied viewed as intended to perpetuate the by the survival of customary practices. family line and ensure the protection Indeed, these developments have not

18 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES ceased to clash with the customary practices that prevail in a situation Voluntary guidelines of legal pluralism. This pluralism on the responsible governance manifests itself in terms of the contra- of tenure of land, fisheries and forests diction between customary and state law in Rwanda, for example. The same • Establish the duty of states to recognise, protect and facilitate the situation can be found in Burundi and exercise of legitimate land rights, whether they are formal, informal or the DRC, with the only difference being customary. that in the latter two countries, the • Urge states to recognise the social context in which rights are exercised, contradictions within the State law re- and recognise that no land rights, including those to private property, garding the status and rights of women are absolute. support the application of custom. As a result, despite all the international legal • Recognise the inextricable link between land rights and human instruments ratified and the advances rights and urge states to respect the civil, political and economic rights of land rights holders, farmers and environmental advocates. contained in the constitutions and laws of Burundi and the Congo, either the • Affirm the principles of non-discrimination and gender equality in implementing laws have not followed access to land rights. the logic of gender equality, they have • Encourage states and non-state organisations to make investments in referred to customary law to govern the land that respect local rights and indigenous peoples, which take matter, or they have not been applied into account their environmental impact and which do not neglect in the face of attitudes or customs that the interests of small-scale farmers and peasants. failed to evolve. However, the Rwandan • Encourage states and non-state actors to establish due diligence government’s efforts in favour of mechanisms that provide for the prior informed consensus of the gender equality, which it is trying communities involved in large-scale land transactions. to promote despite the remaining patriarchal burdens still in place, are to be commended.

29 THE EU’S RESPONSIBILITY FOR be one of these common works”, SUSTAINABLE AND EQUITABLE which led the United Kingdom to LAND MANAGEMENT create a committee similar to that set up by the French. The two working groups were respectively then led The origins of the consideration by the Technological Research and by Member States and Exchange Group (Groupe de recherche the European Union of land et d’échange technologiques or GRET) tenure in developing countries and the International Institute for It was in the period between the Environment and Development (IIED). 29 Bergeret, P. (2008), EU 1980s and the early 2000s that some Both groups worked with a multidisci- Land Policy and the Right to Food, of the EU Member States began to plinary approach and did not consider Transnational Institute and 11.11.11 take an interest in land tenure issues land issues as exclusively economic 30 in developing countries and started ones, rather they took into account the EU Task force on Land Tenure (2004), EU Land to reflect on land tenure as a possible importance of land as a “social object policy guidelines, Guidelines for support to land policy design and land lever for economic development and at the heart of important sociological policy reform processes in developing poverty reduction. In 1996, France set questions such as identity, citizenship, countries up a steering committee on rural land social equity, etc.”30 issues, natural resources and development. “At the same time, France and The Franco-British exchanges Britain decided to conduct common contributed to the discussion among works on development issues, based on land-related donors, and in 2003 the their extensive field experience and a two working groups would go on wide range of research on that matter. tosupport the World Bank’s “Land It was decided that land tenure would Policies for Growth and Poverty

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 19. Reduction” report, a document that by the World Bank. This reflection would have a major impact on land-re- culminated in the first EU policy paper lated donor policies in subsequent on land tenure in developing countries, years. The Bank’s paper, largely written a communication to the Council and by its chief economist Klaus Deninger, Parliament outlining the EU’s approach emphasises individual property rights to land tenure policies in developing as an institutional reality of rural areas countries. The document put forward in developing countries, and stresses a nuanced viewpoint, clearly seeking the importance of securing individual to find a compromise between the land titles as the main response to land value and economic potential of land inequalities and low levels of agricul- as a resource and the multiple social tural investment in these countries. It functions that land performs in the is through securing individual property societies of many developing countries. rights and creating efficient land title The paper acknowledged that the land markets that land can become a lever tenure “closely binds together issues of for economic growth and poverty wealth, power and meaning. Control reduction. The Bank acknowledges over land forms a significant part of the that the formalisation of customary identity and maintenance of rural soci- property and usage rights, where they ety.” Within the same set of ideas, land exist, should take precedence over the tenure is broadly defined as a “system imposition of state law, but these rights of access to and control over land and (as well as collective rights) are seen related resources” and land rights “are from an evolutionary perspective: they not limited to private ownership in the represent the remnants of outdated strict sense, but can be a very diverse forms of social organisation, and their balance between individual rights and recognition is only a prerequisite for duties, and collective regulations, at their eventual integration into the different levels”. The vision of land 31 dominant legal system. policies presented in this paper there- Ibidem fore recognises the multidimensional While the British and French working nature of land as a social issue, and groups had limited influence in World the variety of forms of management Bank publications, their research and and access stemming from state exchange of experiences went on to legal systems and customary land have a greater impact on the EU’s tenure. This variety of sources of land perspective on the issue. In fact, in legitimacy, the Task Force continues, 2002, the European Commission’s is often a source of inefficiency in land Directorate-General for Development management and conflict. It is for this (DG DEV, now DEVCO) launched a reason that the EU recognises the need multi-stakeholder task force compris- to find a compromise between “formal ing experts from the Commission, land tenure standards and informal key experts and representatives norms and institutions”.31 of the Member States to produce guidelines that could guide the actions The document went further and, con- of the Member States’ development trary to the approaches that would be cooperation agencies and its own proposed by multilateral donors such Directorate-General. The paper, as the World Bank and International which was only a few pages long, Monetary Fund (IMF), the EU Task provided a critique of approaches Force recognised the crucial role of that place individual property rights land policies as a cornerstone of not at the centre of land interventions, only economic development and pover- while embracing an evolutionary ty reduction, but also of social stability, conception of land rights. Through conflict prevention and social equity. this document, the Commission and In this sense, land policies became a DEVCO launched a debate to help fundamental tool to achieve a range clarify the economic vision promoted of objectives such as food security,

20 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES environmental sustainability, gender The EU and France’s commitment equality and respect for human rights. to the Voluntary Guidelines This was a radically different approach and the sustainable management from that of multilateral donors and of land tenure systems aligned with the positions of social anthropology and development studies. The EU’s actions for the sustainable This was particularly important in management of land tenure sys- the rest of the paper, where the Task tems Force considered positions which In his analysis of the European guide- were critical of the approach founded lines on land tenure, Pascal Bergeret32 upon a market-based view of the land writes that “Since the guidelines were and the economic value of individual published in November 2004 through title deeds. The Task Force clearly a Communication by the Commission, recognises that “titling may not be very little attention has been given to the solution”, and that the objective of them” and that this fact shows that “the a sustainable land policy should not work of the task force, although for- necessarily be to provide each land user mally endorsed at the highest levels of with a formal title, but to guarantee EU governance (Commission, Council access to users through a variety of and Parliament) is not actually owned land access and management models. It by the EU system. The point of view of recognises that an effective land policy the task force, as we have seen, slightly should not be limited to securing land diverges from the point of view of other rights, but should recognise existing donors through its political flavour.” rights by integrating them into the range of legitimate management In 2012, the discussion on land policies models in order to achieve a maximum would again take centre stage in impact in terms of poverty reduction discussions of development policies. and economic growth as well as social In part, this renewed attention was 32 Bergeret, P. (2008), Ibid. equity, conflict prevention and human justified by the media attention paid to rights protection. It is in this spirit that the numerous cases of land grabbing the EU document suggests an approach in Asia, Latin America and Africa in based in equal parts on the need to se- the first decade of the 2000s, a topic cure titles to obtain economic benefits which was gaining prominence in as well as on the need to protect the the Western media. Land grabbing in human rights of populations, which Africa is often justified by economic are recognised as a prerequisite if the investments from multinational most disadvantaged sections of the companies, or by states looking for population, especially women and land to produce foodstuffs or agrofuels. indigenous peoples, are to have access International civil society, meanwhile, to basic human rights, as well as to civil began a discussion process within and political rights. the FAO’s Committee on World Food Security (CFS) in 2010 in order to speak with representatives of governments and civil society, with the aim of creating a set of international guiding principles governing the management of not only land, but also fisheries and forests. The outcome of this discussion was, in 2012, the enactment of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests (hereafter Voluntary Guidelines). The purpose of these guidelines is to propose a clear framework for national governments

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 21. and private investors to ensure that Voluntary Guidelines. This EU support the growing number of agro-industrial manifests itself through its involvement projects targeting land in developing in a number of initiatives: countries are conducted in ways that promote food security, the protection • EU-UN Partnership on Land, of the rights of local communities, the Natural Resources and Conflict equitable distribution of economic Prevention benefits, and the respect of state and Since 2009, the EU and the UN have customary land tenure rights, especial- established a strategic partnership to ly those of women, ethnic minorities address conflicts over natural resources and indigenous peoples. in developing countries. This partnership had a regional “Great Lakes” com- Since their adoption by the CFS, the ponent with projects implemented in Voluntary Guidelines have emerged as Rwanda, Burundi and the DRC. These the key instrument for sustainable and projects focused on small-scale mining equitable land management. Although (in Burundi), the mediation of land they are non-binding in nature, they conflicts by arbitration committees (in represent a soft law instrument that Rwanda, see also 2.2) and land conflicts can be mobilised by communities in the mining sector (in the DRC). interested by large-scale land investment projects which involve the land • Thematic Programme on Land where they live, as well as civil society DEVCO implemented a series of pro- organisations that aim to influence grammes in 2013 and 2015 that aimed ongoing land reform processes in their to support sustainable management respective countries. In addition, the of land tenure systems in beneficiary Voluntary Guidelines provide civil countries, including technical support 33 FAO Technical society organisations in developed to local authorities in charge of imple- Cooperation Department countries with tools to monitor and menting land tenure programmes and Field, Programme Management Information hold to account private entities wish- actions to popularise the Voluntary System, List of EU-Funded Projects ing to invest in the natural resources Guidelines. The actions carried out in of host countries in Europe, Africa 2013 resulted in a total of 33 million and Latin America. The Guidelines, in euros, while for actions carried out fact, establish a set of clear principles in 2015 the total was 31 million and good practices for the responsible euros. Most of these interventions are management of relevant natural concentrated on the African continent resources. (Angola, Burundi, Ethiopia, Cote d’Ivo- ire, Kenya, Malawi, Niger, Somalia, Since their launch, the EU has been at South Sudan, Swaziland, Cameroon, the forefront of popularising and dis- Ghana, Uganda and Guinea-Bissau). seminating the Voluntary Guidelines. It should be noted that some of these This is not surprising, as the principles interventions are cross-cutting and contained in the Voluntary Guidelines form part of the EU-FAO partnership are in line with the guidelines in (see next point). the Commission’s 2004 land policy document (see para. 3.1): they provide • EU-FAO Partnership for a variety of approaches towards Between 2012 and 2017, the joint EU- recognising land rights, they pay FAO action resulted in the implemen- particular attention to minorities, tation of more than 140 programmes and they recognise the cultural and on the management of natural social aspects of land and not only its resources, land, and mining, forest and economic value. The EU was involved fishery areas, often with the explicit from the start of the discussion about aim of disseminating the Voluntary the Voluntary Guidelines in 2009, Guidelines, with a total value of more and is currently a key player in the than 600 million euros.33 development and dissemination of the

22 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES • Land Policy Initiative Voluntary Guidelines were approved The EU also participates in the Land in 2012, the Technical Committee and Policy Initiative, an initiative of the AFD were the first to disseminate and African Development Bank, the implement the Voluntary Guidelines. African Union Commission and the In fact, since 2014, AFD has been using United Nations Economic Commission its own implementation and guidance for Africa to establish a fair and equita- system to comply with the Voluntary ble land tenure system in the member Guidelines. It is an ex-ante guide to 34 countries of the African Union. EU be used prior to land investments. support, amounting to 8.8 million euro, Modelled on the principles of the ended in June 2017. Voluntary Guidelines, this guide was produced with the aim of serving • Support for the International Land as an “implementation manual” for Coalition (ILC) investment projects carried out by The ILC is an initiative that brings French investors. Although the guide together international civil society is a remarkable initiative and has been organisations, NGOs and some UN adopted by DEVCO in the implementa- agencies to promote land tenure tion of some of its programmes, its use systems that are inclusive, fair and has been relatively limited. In particu- put the interests of farmers first. The lar, the guide is not systematically used EU has pledged to financially support by AFD or by PROPARCO, AFD’s sister 34 Comité Téchnique ILC’s 2016/2021 strategy for a total of 5 organisation which groups together Foncier et Développement, Guide d’analyse ex-ante de projets million euros. private sector organisations, though it d’investissements agricoles à emprise has been used in pilot projects. The fact foncière Support for the Land Matrix 35 • that this tool produced by AFD was Zimmerle, Brigit (2012), initiative not taken up or used in a systematic When Development Cooperation becomes The Land Matrix is an independent, fashion by the organisation of private Land Grabbing. The Role non-governmental initiative aiming to sector investors grouped within of Development Finance Institutions, Fastenopfer/ set up a system of monitoring and ac- PROPARCO is a cause for concern for Bread for All. EurAc 36 countability for large-scale land trans- , as it shows a lack of commitment Pèlerin, E., Mansion, actions. In its strategic planning for from AFD and PROPARCO beyond A. and Lavigne Delville, P. (2011), Afrique des Grands 2017/2020, the Land Matrix plans to set simply producing tools. In addition, the Lacs : droit à la terre, droit up a system of regional observatories guide provides a series of pre-assess- à la paix. Des clés pour comprendre et agir sur la to monitor major land transactions and ments for agricultural projects that are sécurisation foncière rurale. land grabbing. The EU is supporting equally relevant in other land related (30), CCFD–Terre Solidaire/ Gret; 1-127. the project for a total of 1 million euros sectors, such as the energy, mining and by 2020. real estate sectors. There is no reason why the mechanisms provided for in France’s commitment the ex-ante analysis guide should not to the Voluntary Guidelines be applicable in other cases. As we have pointed out, France has been present since the beginning of the discussion on land policies in The EU and land tenure: contra- developing countries. It has in fact dictions and limits been active within AFD since the EU interventions in developing beginning of the 2000s, where the countries, whether in the area of Land and Development Technical land, agriculture, access to justice or Committee has been an advisory education, have poverty reduction as structure at the forefront of shaping their ultimate goal. In the Great Lakes the French perspective and policies region, as in the rest of sub-Saharan on the issue of access to land and land Africa, poverty is concentrated in rural tenure. The contribution of this com- areas, where 75 % of poor people live;35 mittee has been central to influencing in addition, more than 80% of the land policies at the European level population still depend on agriculture (see paragraph 3.1). As soon as the to survive. 36 Amongst the various

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 23. factors explaining impoverishment in GRAIN report, Feronia is supported 40 rural areas are the scarcity of arable by France, Spain and Great Britain. land (often an average of 0.4 hectares According to a second report, Belgium per family), which is also linked to (Bio) and the Netherlands are also 41 population growth and climate change, involved. as well as the intensive exploitation of natural resources (forests, mines, In terms of European policies related etc.). Thisland shortage, caused by the to land grabbing and tenure issues, scarcity of available land, is creating it is worth mentioning the “New 37 37 a growing market for land. In this G8 Alliance for Food Security and Ansoms, A., Hilhorst, Th. (eds.) (2014). Losing sense, farmers’ access to land seems Nutrition” (Nouvelle Alliance du G8 Your Land: Dispossession in to be one of the main challenges to pour la Sécurité Alimentaire et la the Great Lakes, Boydell & Brewer, USA. effectively combating poverty. However Nutrition or NASAN) supported by 38 Zimmerle, Brigit the EU’s interventions in development France, Germany, Italy, the UK and the (2012), When Development cooperation or support for the land EU, which “further accentuates the risk Cooperation becomes Land Grabbing. The Role reforms described in this report open of rural communities losing control of of Development Finance doors to possible abuses. and access to their land to the benefit Institutions, Fastenopfer/ Bread for All. of large-scale investors, mainly as a 39 The Feronia case is Firstly, the EU does not have a specific result of strategic commitments made being monitored by several and ambitious policy to curb land by African States regarding the grant- members of EurAc: Entraide 42 & Fraternité, CCFD-Terre grabbing by European companies. ing of land titles and land reform”. Solidaire, Christain Aid and Although the Commission, through Although no countries in the Great Miseror. 40 DEVCO, has effectively appropriated Lakes region are currently participating GRAIN and RIAO-RDC the Voluntary Guidelines on the in this initiative,43 it reflects the danger (2015), Agro-colonialisme au Congo. Les institutions financières Responsible Governance of Tenure of of the approach taken by major inter- de développements européennes et américaines financent une nouvelle Land from the FAO, this remains a vol- national funding providers. In addition, phase d’agro-colonialisme au Congo. untary instrument that does not oblige NASAN is expected to merge with 41 CNCD-11.11.11, 11.11.11, the Union, its Member States or private another initiative, the “Grow Africa” AEFJN, Entraide & companies to establish mechanisms platform, which involves Rwanda. Fraternité, Oxfam Solidarité and SOS Faim (2013), Ruée for assessing and monitoring land in- vers les terres ? Quelles vestments. Secondly, the EU and some Furthermore, the EU intends to align complicités belges dans le nouveau Far West mondial ? . of its Member States use instruments its action with - or even directly 42 Curtis, Mark (2015), that promote land grabbing. These support - multilateral initiatives Nouvelle Alliance, Nouveaux include financial instruments (Belgium, launched by the AfDB, AU (NEPAD), Risques d’Accaparements de Terres : Étude des impacts Netherlands, Germany, Sweden, FAO or the World Bank to promote 38 au Malawi, au Nigéria, Switzerland). However, a distinction agro-industry. However, the au Sénégal et en Tanzanie, Action Aid. must be drawn here between the DRC, agro-industrial sector is one of the 43 10 African countries have where the phenomenon of large-scale main culprits of land grabbing in joined NASAN : Benin, Burkina land grabbing by companies is com- Africa, alongside the extractive sector. Faso, Côte d’Ivoire, Ethiopia, Ghana, Malawi, Mozambique, Nigeria, mon, and Rwanda and Burundi, where The AU, the AfDB and the United Senegal, Tanzania. the areas concerned are much smaller. Nations Economic Commission for 44 United Nations, Land Policy The issue of the size at which reference Africa (UNECA) have launched the Initiative 45 is made to “large-scale” therefore varies “Land Policy Initiative” programme, Madariaga College of Europe Foundation (2013), according to national realities. In addi- which aims to increase land use Land Grabbing: Is Europe part tion, it should also be made clear from for development.44 Other areas of of the Problem or the Solution?, Madariaga Report. the outset that most of the perpetrators European policy have direct or indirect of land grabbing in all three countries effects on land grabbing around the are mostly local actors (companies, world, such as EU bio-economy policy political, military, economic and urban (REDD mechanisms), trade policy, elites). Nevertheless, European compa- or the Common Agricultural Policy nies are still involved in the problem (CAP).45 Finally, at the global level, the of land grabbing in the Great Lakes. A negative role of financial markets can well-known case is that of Feronia, the also be pointed out, in particular due company responsible for land grabbing to the free movement of capital and 39 in the DRC. According to an initial speculation on the value of agricultural

24 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES land,46 to which the EU provides only member states, is nothing more than a a weak response in terms of reform or mega-PPP for major investments and regulation.47 reforms in the agricultural sector. In its Communication titled “ A Stronger These mechanisms increase the Role of the Private Sector in Achieving concentration of land ownership in Inclusive and Sustainable Growth in the hands of large investors. In the Developing Countries “ (May 2014), the agricultural sector, this concentration Commission proposes to strengthen of land is justified in the name of the this role in the agriculture and agri- need to modernise Southern agricul- food sector, notably by supporting 46 ture and invest in “underutilised” land “inclusive PPPs and business models European Economic to increase global food production. with due recognition of processes and Social Committee, L’accaparement des terres: In Africa, where more than 90% of such as the voluntary guidelines on une sonnette d’alarme pour rural agricultural land is not officially responsible governance on tenure of l’Europe et une menace 48 imminente pour l’agriculture registered, the scale of land grabbing land, fisheries and forests, responsible familiale (avis d’initiative), is estimated at 56.2 million hectares, agriculture investment and the 21st January 2015. 47 or 4.8% of the continent’s agricultural UNECA’s Land Policy Intiative”. In European Commission, Tackling the Challenges in area, followed by Asia (17.7 million Rwanda, for example, this type of Commodity Markets and hectares) and Latin America (7 million PPP has been implemented in the on Raw Materials (COM(2011) 25 49 final), 2nd February 2011. hectares). Large-scale land grabbing tea sector in the Nshili and Musubi 48 Lattier, Anthony (2013), is encouraged by the adoption of new regions (Southern Province). Another « Accaparrement des terres afri- legal frameworks that are supposed to type of PPP that promotes investment caines : La question foncière devrait etre une opportunité », Radio streamline land occupation and thus leading to large-scale land acquisition France Intérnationale . facilitate the massive investment of is the Emerging Africa Infrastructure 49 European Economic and multinational corporations in land. The Fund (EAIF) from the Private Social Committee, Ibid., p.2. 50 same is true of the extractive sector, as Infrastructure Development Group Observatoire des multina- the rise in raw material prices over the (PIDG), to which Switzerland, the tionales, dossier Accaparrement 51 des Terres last ten years has led to the occupation Netherlands and Sweden contribute. 51 Une planète aux enchères ? of cultivable and/or inhabited land for The PROPARCO fund initiated by the Perspectives, published by the launching of new forestry and sub- French Development Agency (AFD) is Fastonopfer, 2013 52 surface (mining, hydrocarbons) pro- also worth mentioning. PPPs are often De Clerck D., jects. This phenomenon, however, is the criticised for introducing profit-driven Demeulemeester E. and 52 Herroelen W., Public Private subject of fierce criticism, not only for actors into the agricultural sector, Partnerships: Look Before You Leap into Marriage , the attacks on the sovereignty of States because of their top-down and busi- Review of Business and over their resources, but also because it ness-oriented nature, and for excluding Economic Literature, 2012/57.3, p. 249–61. favours the dispossession of small-scale or discriminating against small farm- 53 50 53 Heinrich M., Donor farmers . The increase in the value ers and marginalised communities. Partnerships with of land disqualifies the poorest and Business for Private Sector Development: What Can supposedly least productive sections The EU appears to be encouraging We Learn from Experience?, of the population from land access, the concentration of land ownership Working Paper -Donor Committee for Enterprise leading to impoverishment and human by large private investors in Africa. Development, Cambridge, rights violations. This is particularly true in the agri- 2013. 54 cultural sector, since the promotion European Commission (2013), Agri-business and develop- This trend in favour of agro-industry of agro-industry is at the heart of ment. How investing in the African and land investment is reflected in European development policy in agri-food sector can help support development the promotion of “Public-Private Africa, based on the “increasingly clear , Partnerships” (PPPs) for the devel- political consensus on the role of the opment of the agricultural sector, private sector in revitalising African particularly in Africa. For example, agriculture and developing a dynamic the “Grow Africa” platform serves to agri-food industry”.54 According to attract private investment in partner- former Development Commissioner ships to support the policies set out in Andris Piebalgs, the development of NEPAD’s CAADP, itself promoted by the agricultural sector is a priority for the European Commission. NASAN, many African countries, justifying the supported by the EU and some fact that the EU has released 8.2 billion

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 25. euros for across the 2014-2020 period for the agricultural sector in Africa. In conjunction with this statement, he said that it is essential that the private sector invest massively in African agriculture because without private sector investment,”there will be missed opportunities for knowledge and technology transfer”.55 This strategy is based in part on the perception that peasant and family farming has a limited capacity for action and is risk averse, as stated by Rhoda Peace, AU Commissioner for Agriculture and the 56 Rural Economy. 55 David Koczij, Investing in Africa: The challenge of agriculture, As we have seen, this type of approach Friends of Europe contradicts the Commission’s 2004 56 Ibidem. guidelines, and it is a far cry from the user rights-based approach promoted by the Voluntary Guidelines, a document that has been approved by DEVCO. However, in two of the countries in the Great Lakes region, Rwanda and Burundi, the EU is present and provides financial support for programmes to reform land management systems. Although the goal of these programs is land tenure security, it is noted that they often stem from a pro-securitisation approach which sees commercialisation as the ultimate goal of security. In the DRC, where land issues play multiple roles in the emergence of both communal and armed conflicts, and where the economic stakes associated with land use are high, the EU does not intervene in the land sector. The analysis of the Union’s land tenure interventions in the three countries will be analysed in the following part.

26 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Part II

LAND TENURE IN THE GREAT intensification and professionalization LAKES: TWO OPPOSING VISIONS of food production; to achieve these goals, it stresses the importance of The 2008 financial crisis, economic irrigation, the promotion of large-scale adjustments (such as the reorientation commercial promotion and the devel- of many investors towards the opment of new technologies.61 commodities sector), and liberalisation policies in many countries have The second model supports peasant renewed interest and given increasing and family farming, operating on small 57 Roger D. Norton (2006), priority to the formulation of policies farms. This school of thought calls Politiques de développement and strategies for the agriculture for the consideration of both peasant agricole. Concepts et expériences, FAO. and natural resources sectors. This knowledge and technology in the 58 renewed interest is based on the idea design of an agricultural model that is Ibidem. 59 that is crucial more resource-efficient and autono- United Nations agricultural growth Development Programme for economic development and that mous (and resilient). The political econ- (2007), World Development Report, the development of the agricultural omy of agricultural reform criticises New York, p.234. 60 sector is a prerequisite for the further the neoliberal vision of agriculture as World Economic Forum (2013), Achieving the New development of a country. While the several authors argue that the potential Vision for Agriculture: New contribution of this sector to economic of small-scale agriculture has been de- Models for Action, A report by the World Economic growth is expected to diminish as a liberately disqualified by the dominant Forum’s New Vision for country develops, it remains crucial for discourse on productivity. 62 Others Agriculture initiative, in 57 collaboration with McKinsey food security. argue that productivity and efficiency & Company. 61 in and of themselves should not be the Collier, P. (2010). The Two major development models for main criteria for assessing the potential Plundered Planet: How to Reconcile Prosperity with the agricultural sector are fighting of small-scale agriculture. Rather, the Nature. Allen Lane, London, over whether and how the sector can way in which agriculture can contrib- p.216. 62 meet the growing demand for food ute to poverty reduction and ecological See: Akram-Lodhi, 63 A.H. (2008) ‘(Re)imagining and function as an engine of pro-poor sustainability should be valued. agrarian relations? The World economic development. The first Development Report 2008: Agriculture for development’, model, inspired by neoliberal thinking, An attempt by the neoliberal model Development and Change defends maximum growth through to integrate some of the criticisms 39 (6): 1145-1161. Veltmeyer, H. 2009, The World the professionalization of agriculture levelled at it by agroecologists can be Bank on ‘Agriculture for (World Bank, FAO). Liberalisation of observed from 2013 onwards, at least Development’: A Failure of Imagination or the Power of the sector would promote its growth in the discourse: from promoting the Ideology?, Journal of Peasant through international competition Brazilian model (expropriation of Studies 36 (2): 393-410. 63 (improving efficiency/productivity small farmers), we are now moving Wittman, H., Desmarais, A., et al. (2010). in order to survive), the abolition of on to the model of “partnership” with Reconnecting Food, Nature taxation on agricultural products farmers. However, the model remains and Community. Oxford, (which limits the sector’s growth fundamentally unchanged: the Green Pambazuka Press. prospects) and encouraging exports.58 Revolution (technical and technological The World Bank’s 2008 report investment), growth (not self-suffi- “Agriculture for Development”59 ciency) and productivity remain the and then the 2013 World Economic cornerstones. It should also be noted Forum60 have (re)launched the idea of that this partnership envisaged by a “Green Revolution” in sub-Saharan the donors does not include the vast Africa. This revolution focuses on the majority of farmers who have less than

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 27. one hectare. The balance of power at RWANDA work in this type of partnership, which is supposed to support more sustain- Rwanda is a small landlocked country able agriculture, effectively excludes in the heart of Central Africa, sharing the smallest farmers. Support for borders with the DRC, Uganda, agro-ecology and peasant and family Tanzania and Burundi. With a surface farming remains marginal in agri- area of barely 26,000 square kilometres cultural sector development projects and a population of more than 11 financed by the main international million inhabitants, it has the highest donors. population density on the African continent. It is clear that the issue of Theposition of the countries in the land tenure is of crucial importance Great Lakes region in this debate is in a country which, despite the reflected in their agricultural policies, important economic advances of the which are generally in line with the post-genocide period, is still dependent neoliberal model, notably in order on agriculture as the main source of to be able to access the financing income for its population – 85% of needed to implement their agricultural which depends on farming. 64 AU Maputo Declaration, June investment plans. It is nevertheless 2003, Maputo, Mozambique. 65 necessary to mention noteworthy For clarity of explanation, Rwanda’s With initial funding from the European Union, differences between Burundi’s land management practices will be USAID, and Canadian and policies, marked by clear but inefficient broken down into two historical macro Dutch cooperation agencies. Recently, French and Irish postulates, Rwanda’s pro-GMO and periods: one starting from independ- cooperation agencies have pro-market productivism, and the ence, leading up to the tragic events of provided additional funding. Other contributions have DRC’s lack of global vision and chaotic the 1994 genocide, and the period after been pledged but are still implementation. The African Union, the genocide, from 1994 to the present pending. See: http://www.nepad. org. and NEPAD in particular, play a key day. 66 This is a simplification; role in this alignment of national the Rwandan customary policies. Agriculture is one of NEPAD’s system, which is now almost Land management from entirely obsolete, included a priority areas, the objectives of which variety of figures in charge were adopted by Heads of State and independence until the 1980s of land, whether for common property, grazing land or Government as the Development Like its neighbouring countries, family property. A more Agenda,64 itself reflected in the Rwanda had several land management comprehensive presentation of the systems of customary Comprehensive Africa Agriculture systems when independence came land management in Rwanda Development Programme (CAADP), about, in particular a system of written is provided by Des Forges (2006), Land in Rwanda: presented as an African framework or official law introduced by the Winnowing out the chaff, for policy and institutional reforms to Belgian colonisers, and a customary Annuaire de l’Afrique des Grands Lacs, 2005-2006 increase investment and thus enable system that revolved around the rights the agricultural sector to increase its of the customary king, the umwami production. Efforts to align national and his notables.66 At the time of policies with the principles and the revolution in 1959, which marked objectives of NEPAD require national the country’s independence from the roundtables that result in national cov- Belgian colonisers, the state assumed enants between donors and individual the powers of the umwami king to al- governments. These round tables are locate and manage communal land. At supported by the Multi Donor Trust the same time, the land management Fund created in September 2008 by the system remained divided between World Bank.65 Agricultural policies in customary management, heavily influ- Africa, including Great Lakes Africa, enced by the Belgian colonisers, and are complying with these procedures formal management by the state. In and the neoliberal model. 1976, President Juvénal Habyarimana signed a presidential decree regulating land management and access arrangements. The decree established that any land that is unused in Rwanda, either

28 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES under customary or formal law, is and a lack of crop specialisation. owned by the state. It is important to The 1976 law was therefore supposed remember that the 1976 decree is part to deal with the problem of land frag- of a political context already marked mentation by imposing restrictions on by ethnic conflicts. At the time of the the possibility of selling or subdividing revolution led by the Habyarimana plots below a certain surface area. The Democratic Republican Movement implementation of this law encoun- in 1962, 20,000 Rwandan Tutsi had tered difficulties, however. The same already left the country, leaving their was true of the law stipulating that any land behind. These areas of land land transaction had to be authorised created a political opportunity, as they by the Ministry in charge, while in were easily taken over by the remaining reality the procedure to regularise said Rwandans and the remaining political transactions was often burdensome, elites, who often distributed them which contributed to the development to their own advantage.67 Although of an illegal market for the sale of land. the 1960 and 1962 presidential edicts Moreover, in the absence of real legal and the May 1976 decree recognised provisions concerning inheritance customary rights, they were also and succession, a large part of the intended to stimulate the land market decision-making power covering land and regulate the sale of land. allocation at local level rested with the local authorities, in particular 67 These initiatives were part of a broader the mayors and their deputies, who Pottier, Johan. (2006), Land Reform for Peace? movement to combat the fragmenta- effectively had the final word on the Rwanda’s 2005 Land Law in tion of plots of land. Indeed, given the allocation of plots at the municipal Context, Journal of Agrarian 68 Change (6:4) pp. 509-537 size of the country, land fragmentation level. This favoured land grabbing 68 This was the admin- remained a critical concern for the by local elites, and contributed to an istrative structure used Rwandan pre-genocide government. unprecedented increase in the level of in Rwanda prior to the genocide, which brought This trend towards fragmentation, land inequality in Rwanda: one need together numerous ‘collines’, which is still present today, is mainly only consider that in 1984 the National the smallest administrative unit. due to two factors. The first factor Survey on Household Spending found 69 Pottier, Ibid., p. 514 is the small size of the country and that 15% of Rwandans controlled land 70 significant population growth. This surface area equivalent to about 50% of See Kamola, Isaac. A 69 (2007), The Global Coffee means that within each generation the country’s total land. Economy and the Production the family estate is being subdivided of Genocide in Rwanda, Third World Quarterly (28:3) pp. among the (exclusively male) heirs of 571-592 the family, which logically leads to Restructuring the legal progressive fragmentation of the plots. framework after the genocide The second factor is the traditional In 1994 Rwanda experienced one of organisation of the agrarian lifestyle the greatest tragedies of modern his- of Rwandan households, which are tory, the genocide of almost 1 million organised in a “scattered” fashion, Rwandans - Tutsis and moderate spread throughout the national territo- Hutus - by extremist Hutus. While ry. At this time it was not uncommon the purpose of this document is by for a Rwandan household to practice no means an in-depth examination agriculture on multiple plots, often in of the role played by rising land far from the family’s home, situated inequality at the end of the 1980s in on other hills, often requiring several relation to the tragic events of 1994, it hours of travel by foot to reach them. is nonetheless important to note that Certainly, this type of organisation was by 1994 the peasantry were weakened productive in that it allowed risk to be by the scarcity of land and the drop managed broadly, spread across several in the prices of cash crops on the agricultural extensions. However, when international market (and particularly coupled with a significant increase in coffee prices, Rwanda’s leading export the population, this naturally leads to crop).70 Rwandan peasant farmer’s the fragmentation of agricultural areas productive capacities were weakened by

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 29. an increase in land inequality, by a land as the World Bank, it was accepted by policy that indirectly favoured land the government that the solution for grabbing by political elites and local better land management and stream- government, and by an inability to lined farming and food production was engage in profitable export agriculture. the privatisation of land ownership and its consolidation - combining small After victory, the Rwandan Patriotic plots of land into larger land exten- Front (RPF) faced two major problems. sions, which should guarantee higher Firstly, there was the massive influx levels of agricultural production. of Tutsis who had left the country in 1959 as a result of the Hutu revolution, Land consolidation is the first objective as well as those who had fled Rwanda that the RPF government set itself, following the events of 1994. It is impor- with the enactment of the law on tant to note that a significant propor- “villagisation” in December 1999. The tion of the RPF’s activists was made up land villagisation policy imposes the of exiles from the first wave of displaced umudugudu (pl. imidugudu) as the Tutsis, and that the issue of the land only permissible form of residence left behind by exiled families and its in Rwanda. An umudugudu is the redistribution is central to understand- equivalent of a village, a cluster of ing the events of 1994 and the RPF’s houses often near a main road. The political involvement seeking liberation organisation of housing into imidu- of the country. The Arusha Agreements, gudu was supposed to break away signed in 1994, stipulated that the those from the “scattered” forms of housing 71 Des Forges, Ibid. p. 360 returning after having left in the 1960s considered traditional in Rwanda, 72 See Pottier, Johan (2002), and survivors of the genocide were while at the same time the grouping Re-Imagining Rwanda: Conflict, Survival and entitled to claim the land left at the of residences was intended to favour Disinformation in the late time of departure, but only if the land in an increase in agricultural production 20th Century. Cambridge: Cambridge University Press; question had been abandoned less than and facilitate the delivery of public Van Hoyweghen, Saskia ten years prior to the signature of the goods, thanks to greater proximity to (1999), The Urgency of Land and Agrarian Reform in agreement. That said, it is clear that the schools and local government offices. Rwanda, African Affairs, arrangements between those returning The grouping of households would 98:392, pp. 353–72.; Human Rights Watch (2001), Uprooting and people living on the land in 1994 also have made it easier to provide the rural poor in Rwanda were often decided at the local level of electricity, drinking water and other the commune (now district) and often essential services. However, the imidu- waived the letter of the Agreement. gudu policy has been strongly criticised Secondly, policies to control market by human rights organisations and fragmentation and formalisation en- a large number of universities. The acted during the Habyarimana era had basis of these criticisms is often the failed to manage customary land tenure mandatory nature of the programme and combat fragmentation. The RPF and the way in which it has been found itself with a country with a large implemented. It has frequently been population density, which was increased demanded that Rwandans destroy further with the return of refugees, as their homes (which are often in perfect well as agricultural production methods condition) in order to build new ones that it judged to be “anarchistic” and in the areas designated as imidugudu. “archaic”.71 Despite the efforts of the Several studies 72 have noted that the Democratic Republican Movement, costs of villagisation policies have Rwandans were still organised into been felt more strongly by the poor “scattered” dwellings. in rural communities, by women and by the elderly, social categories which It is the latter problem that the RPF au- have fewer means to move to the new thorities addressed first. Furthermore, areas designated by the government. thanks to the contribution of academic Moreover, no benefits in terms of institutions such as Michigan State agricultural productivity were recorded University and multilateral donors such as a result of the villagisation policy.

30 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES The 2005 Organic Law The Rwandan approach is part of a leg- and the Crop Intensification islative and policy framework that sees Programme securing land rights as the key element While the villagisation policy was the for resolving land disputes, and the first first step towards consolidating land use, step towards creating an open market and the introduction of a higher degree of for land ownership. It is an approach state control by the central government, rooted in a “commercial” vision of the Organic Law No. 08/2005 on land tenure land, but which also provides for strong in Rwanda became the final instrument state intervention in land markets. for land sector reform. This document Today, the vast majority of Rwandan embodies the thinking of its time, in the citizens are in possession of land titles. sense that it is remarkably inspired by the This title is actually a lease, because land tenure conceptualisations common land in Rwanda is exclusively state- to some international organisations owned. In rural areas, these leases are and donors such as the World Bank. emphyteutic, that is they are granted The law, accompanied by a policy paper for 99 years and are renewable, while 73 Rwandan government promoted by the government, has had in urban areas they instead last for 25 (2004), National Land Policy, Ministry of Land, Environments, three major effects on land management years and can be renewed. Forests, Waters and Mines in Rwanda. It effectively liquidated any 74 This law was replaced form of customary land management. Article 20 of the Law also prohibits in 2013 by law 43/2013 of In its 2004 land policy document, the “the fragmentation of land for June 2016. This new law incorporates the intent of the government points out customary land agriculture and livestock production previous law and does not law as one of the major obstacles to which is less than or equal to one change its general principles. For this reason, the text rational and efficient land management hectare in size”. The same article also refers to the 2005 law. 75 in Rwanda, especially because of the right introduces the concept of “consoli- Landesa, Rural to inheritance for male descendants, dation” of agricultural land, which is Development Institutes: Secure land rights for Rwanda’s women are without any limitation related to the then developed by the government’s critical for families and the nation 73 . 76 size of the plot. Accordingly, the 2005 agricultural programmes (see below). National Institute of law repeals all forms of customary The basic idea behind these provisions Statistics of Rwanda (NISR) (2012), Third Integrated land ownership (art. 86), making State is that in a context of land scarcity, Household Living Condition law the only possible legal form of land the only rational choice is to halt the Survey. Main Indicators Report. NISR, Kigali. ownership in the country. Of the various fragmentation of plots and to promote 77 customary systems present in Rwanda, their consolidation, thus creating agri- Blarel, B., P. Hazell, F. Place and J. Quiggin (1992), the law explicitly names the ubukonde, cultural areas that allow for a certain The Economics of Farm Fragmentation: Evidence the traditional practice in the areas that level of intensification and economies from Ghana and Rwanda,. today form the Rubavu and Musanze of scale. This point is fundamental, World Bank Economic districts. since the provisions of Article 20 con- Review, (6:2) pp. 233–54. 78 cern most Rwandans, 85%76 of whom Ansoms, A., Verdoot, 74 A., Van Ranst, E (2008)., Secondly, the Organic Law of 2005 depend on plots of land to survive The Inverse Relationship between makes which very rarely reach one hectare in Farm Size and Productivity in Rural registration of land ownership Rwanda, IOB Discussion Paper compulsory (art. 30) and establishes a size. Moreover, the assumption that system of land offices (art. 31) respon- consolidation automatically translates sible for the management of the land into improved agricultural productivity registry and the delivery of title deeds. does not seem to be supported by the The establishment of the land registry facts. On the contrary, studies prior is one of the most remarkable achieve- to the formulation and approval of the ments of the land reform programme law, including a study carried out by a set up by the Rwandan government. World Bank consultant, show how land Thanks to the support of the DFID, fragmentation can in fact be a valid European cooperation and Dutch and strategy for increasing productivity Swedish cooperation partners, Rwanda in Rwanda,77 a point that has been now has one of the most efficient land established several times.78 registration systems on the African continent. 99% of Rwandans have now It should also be considered that registered the land that they own.75 although the law introduces clear

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 31. principles for land registration, these of crops; (3) improved fertiliser are not always known or implemented distribution; and (4) post-harvest by citizens. These aspects are high- services. The RAB, together with lighted by a USAID-funded research district and sector agronomists in each project completed in 2017, which of the four Rwandan provinces, offered analysed the impact of land reform on producers a range of crops selected for farmers and land users in detail. The the region. At the national level there various project reports present several were six crops available: cassava, beans, challenges to the implementation of potatoes, maize, wheat and rice. It is the letter of the law: in particular the important to note that often the guid- lack of knowledge of procedures by ing principles for the choice of crops to users, the lack of collection of final title be grown in a given area were more the deeds (often due to the relatively high result of economic considerations than cost of this for most users), and the lack of agronomic choices or consultation of registration of land status transfers with local producers. Several crops that - either due to a lack of knowledge of are staple food for most of the rural procedures or to avoid registration population were excluded from the list, fees.79 including sorghum, a sweet potato and the ubiquitous banana, a plant central Finally, art. 62 sets “productivity” to Rwandan family culture. Banana conditions for land ownership. It estab- plants have also been proved to bring 79 See: USAID (2015) Research on Rwanda’s Land Administration lishes that the holder of a right to land significant benefits in terms of the System; ; USAID (2015) Final must ensure the development of the ecology of the family farm by providing Report: Land Use Consolidation and 80 Crop Intensification In Rwanda land owned, in accordance with its use materials for organic fertilisers. 80 and intended purpose. Articles 62-65 See Cioffo, Giuseppe (2014), Les petits agriculteurs thoroughly detail the various types of The first component of the CIP, land face à la modernisation rurale development, and emphasise the user’s consolidation, aims to coordinate the dans la province du nord du Rwanda : consolidation de obligation to use the land rationally cultivation of the selected crops so that l’usage des terres, distribu- and in accordance with state law and producers grow the same crop at the tion d’intrants améliorés et sécurité alimentaire, in S. regulations. same time with the same seeds and Marysse, F. Reyntjens & S. fertiliser. This also means constant Vandeginste (ed.), L’Afrique des Grands Lacs, Annuaire It is possible to understand the project monitoring by the RAB and local 2013-2014 supporting the 2005 Organic Law sim- agronomists, who must ensure that 81 Ibid. ply by considering Rwanda’s ambitions every farmer follows the principles of 82 Ibid. for agricultural modernisation. As the policy, that all crops are planted at noted above, the traditional practice the same time and that farmers use the of agriculture in Rwanda involved right fertilisers. The penalty for violat- field work across several scattered ing CIP rules can range from a fine to plots and combining different crops a night spent at the bureau of the local on those same plots. In its 2004 and sector, to the loss of one’s own plot, 2007 agricultural policy documents, often in exchange for another less “stra- the Rwandan government expressed tegic” plot which is often less fertile. its vision of intensive agriculture, Almost eleven years after its inception, oriented towards both domestic and the CIP has led to some increase in foreign markets, where land consol- productivity for the target crops, but it idation is associated with intensive has also been associated with decreases monoculture and the use of improved in the ability of households to meet inputs. This vision is reflected in the their food security needs.81 Although it Crop Intensification Program (CIP), a is difficult to prove a direct correlation government program under the guid- between the effects of the CIP and ance of the Ministry of Agriculture the food insecurity experienced by (MINAGRI) and implemented by the participating households, it is clear Rwanda Agriculture Board (RAB). The that the programme failed to address CIP is based on four main pillars: (1) this particular concern of Rwandan 82 land consolidation; (2) regionalisation households.

32 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Land conflicts in Rwanda possibilities offered by land reform, and resolution mechanisms are demanding the land owed to them, Despite the issuing of land titles for often arousing the dissatisfaction of most of the population, land conflicts their male co-heirs. in Rwanda continue to this day. These conflicts often take place at the mi- • Conflicts related to genocide cro-level and focus on unresolved fam- survivors and forced population ily issues, or particular legal situations migration for which the state law is not capable As mentioned, the Arusha Accords of finding a solution. It is telling that stipulate that it is not possible to RCN Justice & Démocratie reports that claim land in Rwanda that has been more than 60% of cases taken to the abandoned for more than ten years. courts of first instance in Rwanda are When the “first wave” refugees land disputes. As such the Rwandan returned in 1994 (those who left the example shows that the distribution of country between 1959 and 1962), the legal titles is far from the final solution government often favoured land shar- to land disputes. During our trips ing between returning refugees and into the field, and after a review of the the local population to fulfil the needs literature, we have identified different of those who, according to the letter of types of land conflicts in Rwanda: the agreement, did not have access to land. Although this mechanism aimed • Family conflicts to reduce conflicts between ‘returnees’ These are the most widespread and and local populations, it has often been common types of conflict in Rwanda. criticised by land users and researchers They are most frequently disputes who have noticed the often forced between members of the same nature of these arrangements. Land family over the subdivision of family conflicts related to forced migration do property. This is often the case when, not only concern Rwandans. In fact, as for example, it is necessary to register noted in the introduction, population a plot of land that is the subject of movements in the Great Lakes in- joint inheritance, but which cannot be ter-lake complex are a well-document- subdivided - for example, because it is ed historical phenomenon - the extent less than one hectare in size. of which has often been increased by violence and war in the region. This is • Family conflicts related to women’s the case, for example, for Burundians inheritance who left Burundi during the violence in As mentioned above, the 1999 law on the country in the 1990s and returned inheritance and the 2005 land law in 2006, who can now reclaim the allow women to inherit family land land they left behind when they return ownership. This provision, which is of to the country, in accordance with course necessary to address significant Rwandan law. Some of these lands are gender imbalances in access to land, those that had previously been aban- has also highlighted a significant doned by Rwandans who had left the increase in land conflicts between country in 1959-1962, and who there- women and their family groups. fore no longer had the right to claim Traditionally, in fact, the woman does them. These lands were often occupied not inherit the land from her father, by families of the original owners, or because it is believed that by marrying by Rwandans who worked them in the she will inherit the land left by her absence of their Burundian owners. husband. This custom was essentially a Our field visits have indicated this to way of protecting the family property us as a relatively common occurrence by keeping it in the same family and which causes a fair amount of discon- preventing it from “passing” to the tent at the local level (also because wife’s new family. Increasingly, the same possibility is not available Rwandan women, aware of the new to Rwandans who occupied land in

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 33. Burundi during the events of 1994, who Conflict resolution mechanisms then had to abandon them without the It is important here to briefly mention legal possibility of reclaiming them). the mechanisms for resolving these conflicts. As local conflicts, land • Conflicts connected to the CIP disputes are in fact required to be dealt and agricultural modernisation with by a mediators’ committee (in As we have seen, there is a strong Kyniarwanda Komite z’ Abunzi). The consistency between the provisions of abunzi (sing. Umwunzi) are the medi- the 2005 Organic Law and Rwanda’s ators who sit on these committees, and agricultural modernisation pro- as of 2005 they represent the face of gramme, particularly the consolidation local justice in Rwanda. The abunzi are of land use, which stipulates that responsible for reconciling the differ- producers are to cultivate the same ences between two parties in conflict, crop in the same area in a coordinated and as mediators they should issue a manner. It is sometimes the case that decision only in cases where recon- a producer refuses to comply with ciliation between the two parties is crops chosen for the area in which he not achievable. Inspired by traditional owns plots often for perfectly objective law, the abunzi nevertheless remain a reasons. These may be due to economic pre-judicial actor of modern invention, unavailability (the producer is unable which fits within the larger objective to obtain the inputs necessary to enter of promoting peace and reconciliation the consolidation programme, despite amongst the Rwandan population.84 government subsidies) or because of Most Rwandans who feel aggrieved in food preferences and needs (producers a land dispute must therefore appeal 83 Human Rights Watch may consider that the crop chosen to this mechanism before going to the (2017), Rwanda: Government by the government is not the most court of first instance, to which the Repression in Land Cases. Authorities Threaten, Prosecute Residents Who suitable for ensuring food security in citizen can appeal in case of dissatis- Speak Out. their household). It is at this time that faction with the decision taken by the 84 RCN Justice & Démocratie the local authorities will propose to committee of abunzi. It is important to (2011-2014), La Justice de Proximité au Rwanda. De la Justices au Rwanda : exchange his land with another plot, note that abunzi do not have to suggest Concepts et Réalité de la Justice often located in an area far from the solutions based exclusively on official Abunzi (vol. 3) consolidated zone, and which is often law, but that they may also resort to less fertile. This mechanism often morality and custom, when these are causes animosities at the local level. not in contradiction with the written law. • Conflicts connected to abuses of power by the authorities Although the abunzi committees offer Finally, there are a growing number an innovative, participatory and com- of cases reported by civil society munity-based way of resolving conflicts and human rights organisations that based on restorative justice, a good denounce cases of land grabbing by number of analyses have also pointed local elites, often involved in military to numerous faults in the system. or administrative hierarchies. These Firstly, abunzi often have a low level examples of violations often see the of education, and are often not trained government authorities take a side in the basic principles of the how the in a conflict between several actors, legal system functions. While it may favouring one party over the other, be true that they are not supposed to and sometimes using coercion to force be judges, in the case of land disputes users to abandon their land.83 (which make up the majority of cases addressed by abunzi) it is important that they are aware of the letter of the law - especially in cases involving individuals, such as women, to whom customs grant limited land ownership rights. Secondly, the first goal of abunzi

34 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES should not be to issue a decision, i.e. agree with one side or the other in a RWANDA: Between the letter of the law conflict, but rather they should find and the experiences of farmers a conciliatory situation that works The land reform proposed by the government is very interesting because for both sides. However, in its studies «it helps us protect our land. But there are many problems that the govern- conducted between 2009 and 2011, ment still has to solve. For example, I benefited from the reform because the the NGO RCN Justice & Démocratie government gave me a title for my land. But the title only concerned the land noted that only 46% to 56% of the on the hillside next to my house. My land that I farmed in the marshland was cases resolved by abunzi “involved taken by the government, which claimed to own the marshes [...]. When the a real attempt at conciliation”. The marshes were being redistributed, the authorities gave me nothing because NGO concluded that “[…] considering they felt that I was one of the people protesting against the redistribution of that the search for conciliation is the marshes. Right now, the problem I have with the reform is that I am not al- formally recommended by the law on lowed to divide up my land. I have 1.4 hectares of land and the law forbids me mediator committees, these figures are from dividing it up because you can’t split less than 2 hectares in order to give astonishingly low”.85 It is important to away 1 hectare and keep 1 hectare. But since I really needed money, I had to note that in the same study, users who sell part of my land to two of my neighbours, 0.4 hectares to one and 0.3 hec- achieved conciliation during their ex- tares to the other. Of course, the authorities at the district level are not aware perience with the abunzi generally had of the transaction. They think that I still have 1.4 hectares [...]. My neighbours a higher level of satisfaction than those who bought it hope that one day the authorities will eventually allow us to re- who won the case, and that conciliation gister less than 1 hectare. They’re not really afraid that I’m going to deny that was largely preferred by users over de- I sold them those lands, because these kinds of practices outside the law are cisions favouring one party.86 Thirdly, common here. The authorities at the local level are aware of these practices; although abunzi offer a free and com- some of them face the same problems as we do and are therefore doing the munity-based service (a crucial element same thing. If we do this outside the law, it is because agriculture cannot co- for a local population that is often far ver our monthly expenses at a time when the survival of our families depends away from legal services and lacks the more and more on money, because of the new way farms are organised [...]. financial means to reach them), they Also, even though we are told that we can mortgage our land to get a loan are sometimes criticised for being from the bank, very few small landowners like me are able to access those prone to corruption and for favouring loans. The government should take these realities into account and find ap- the parties in a conflict that are close propriate solutions. to them, whether through family or Farmer, 45 years old, Rusizi, Rwanda friends. While it is true that proximity can encourage conciliation, it is also true that it leaves a door open to favouritism and nepotism. That is why EurAc believes that while the innovative Involvement from the EU efforts of Rwanda’s community-based and Member States justice system can be appreciated, In Rwanda, progress in terms of the training and capacity building of land reform has been made possible mediator committees should remain thanks to the presence of a highly high on the agenda of the Rwandan effective governmental system, but government and its development also as a result of the financial and cooperation partners. technical support of the European 85 Union (through its budget support RCN Justices & Démocratie (2009-2011), La programme in Rwanda) and its Justice de Proximité au Rwanda. Member States. In fact, the programme Le fonctionnement des comités de to create a national land database and conciliateurs (vol. 2) 86 the registration initiative launched Ibidem in 2010 by the government received vital support from the British cooperation agency (DFID) through the Rwanda Land Tenure Regularisation Programme, which was funded to the tune of 25.4 million pounds sterling. The programme attracted the attention

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 35. of other international donors, such THE DEMOCRATIC REPUBLIC as the European Union delegation, as OF THE CONGO well as Dutch and Swedish cooperation agencies. The EU contributed 4 million euros to this programme, intended for The legislative framework the technical training of staff at the and its shortcomings Rwanda Land Management and Use Land in DRC is governed by a number Agency. In 2015, the programme led to of legal provisions regulating various the demarcation of 10.3 million plots sectors: the agricultural code, the min- of land, and the issuing of more than 8 ing code, the urban planning code and million land lease titles. the 1973 land law, all of which contribute to land management. However, it is the The programme also supported law on land tenure which continues the establishment of the Land to underpin land management in the Administration and Information country. It is the product of President System (LAIS), a national computerised Mobutu’s “zairianisation” of all land in database that collects and updates in- the country. This law was born out of a formation on land tenure and changes need to put an end to the “dual” system in land use. The German cooperation of land management in the Congo, i.e. has also indirectly contributed to to address the problem of crossover the success of the programme by between the system of state law and the supporting local NGOs involved in systems of customary management for its implementation. It is important Congolese lands. to note and to appreciate the level of coordination among donors, which has The principle underpinning the 1973 been crucial to achieving an outcome law is the State’s exclusive ownership of that is often seen as a model by other land in the DRC. The aim was therefore African countries. However, according to put an end to the duality of the land to the information at our disposal, the management systems which until then securitisation programme will end in had been characterised by a variety of 2018. As we have seen, although most land access methods. These methods of the land has been registered, there were derived not just from customary is still a need to ensure that the land law, but also from ad-hoc arrangements management system is sustainable, which emerged from population move- updated and monitored, in order to ments or contextual security reasons. guarantee that the data collected are The 1973 law therefore sought to put in line with the reality on the ground. an end to non-state land management The Swedish partnership alone will systems by handing ownership of land continue to support the land office to the state. Land owners became after 2018, providing three years of “licensees” under a 25-year licence in technical support worth more than 3 urban areas and a 99-year licence in million euros. rural areas that recognised their usage rights during that period. The law also Between 2012 and 2017, the EU also allows for permanent licences and supported the agricultural programme transfers. It should be noted that this to the tune of 200 million euros to go law came about in a post-independence towards food security. context when the country had politically stabilised and the question of the land which had been previously occupied and then abandoned by Belgian settlers was still open . In this context, the state central authority needed to take a position relating to customary chiefs, whose legitimacy, for the most part, relied on their power over customary land.

36 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES One of the main problems with the domain and their assimilation into 1973 law is that it was intended to sud- the official domain of the state. It is denly get rid of customary land tenure therefore clear that there is a legislative at a time when 90% of the country’s void concerning the management of land was occupied under customary customary domains, which raises rights and local arrangements. In serious concerns of insecurity amongst addition, these systems of tenure the rural population and especially were highly diverse and constantly amongst farmers who find themselves undergoing change and adaptation. having to claim the right to use their Indeed, the term ‘customary rights’ in plots in the absence of documents the DRC includes both tenure systems proving their rights officially. In the which concentrate power in the person absence of this presidential ordinance, of the customary king (as with the the country’s Supreme Court decided Shi in the east of the country), and in 1982 that customary lands, being others allowing land to be managed owned by the state, should be managed by several actors within the same by the central government. However, community. Traditionally speaking, for in 1988 the same Court pronounced communities in the East of the country, that in the absence of the ordinance, land management is collective, while customary lands were to be managed in the Twa communities, access to land by customary chiefs. is guaranteed for each member of the community, even for Twa commu- The reform process is often marked nities not originally from the area in by complications that make it difficult question. for most rural actors to access. In particular: Customary rights therefore concern the • The cost of registering customary majority of Congolese land. According land is often prohibitive for the to art. 389 of the 1973 law, “[Customary] majority of the population. land tenure rights acquired on these • Knowledge of the 1973 law is very lands are regulated by an Ordinance limited amongst the population; of the President of the Republic”. This many owners do not know their ordinance has never been issued, and rights or the procedures necessary to the lack of regulation of the customary register their plot of land. sector is, according to the informants • The presence of several ‘alternative’ interviewed, one of the main causes of land titles such as informal notes, land disputes in the country. Working private written agreements between and living on land governed by custom- the parties, and documents signed ary law often means having no proof by customary chiefs. Although these (in the legal sense) of the legitimacy of papers offer some degree of security one’s own claims to land tenure. at the local level by recording every- one’s rights in writing, they have very limited legal value, primarily when Customary law and state law faced with actors who have managed As just mentioned, customary rights to obtain registry documents for govern most of the land in the DRC, the same land. These informal notes and it is clear that the lack of a therefore offer no protection against presidential ordinance regulating cus- possible land grabbing. tomary land poses immediate problems • Crossover between different for securing land rights. According normative frameworks poses a to the 1973 law, the registration of problem. This can be seen in the case lands occupied due to customary law of land law, the mining code and the is carried out through the registrar agricultural code, for example. This based in the land registry office, and leads to the rights to use the plot this registration triggers the removal being lost when extractive resources of these lands from the customary are discovered in the subsoil.

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 37. • Lack of recognition of the rights of disappointment regarding this institu- indigenous peoples, especially the tion, a feeling shared unanimously by Batwa (Pygmies). the actors interviewed. In particular, Congolese civil society actors complain Finally, the issue of land in the DRC about the transformation of CONAREF cannot be tackled without returning from a participative public consultation to a pressing, recurrent and currently structure into a political bureau unresolved issue: that of the popula- whose members are appointed by the tions often referred to as banyarwanda Presidency of the Republic and the living in the east of the DRC. The fact Prime Minister’s Office. that these very diverse populations speak Kinyarwanda causes some local Moreover, CONAREF was initially political leaders to attribute a Rwandan conceived as a decentralised body and origin to them, which feeds a desire should have functioned as a national to take their land and can lead to coordination organisation with sev- this land being seized. This problem eral local branches. This organisation arises mainly in the east of the DRC should have facilitated consultation (North and South Kivu) and is one between the different parts of the of the most politicised land tenure country and ensured that the views and issues in the country.87 These are very perspectives of the different provincial complex conflicts involving so-called experiences were taken into account Rwandan-speaking populations who in the reform. However, CONAREF’s have nevertheless resided in Congolese attempts at branching out provincially 87 For example, there are territory since the Berlin conference, have been limited to the East of the reports of the return of some 45,000 refugee families to some of whom arrived with the mi- country. Rwanda, which sparked gration of agricultural workers during lively debate in the National Commission for Refugees in the colonisation of the Great Lakes Within this setting, Congolese civil the DRC in 2012; but also the region. These migrations, which have society therefore organised itself (with Banyamulenge in the East of the DRC, who are often in a long history in the region, often give the assistance of UN HABITAT), and conflict with the Babembe rise to disputes about local land which went on to organise (with EU support) in South Kivu; the Bahutu in conflict with the Bahavu in regularly lead to land conflicts. a conference of experts on the land Kalehe; and the Hutus and tenure reform in the DRC in 2012 with Tutsis in conflict with the Bahunde in North Kivu. The reform process the aim of producing a set of guidelines of the 1973 law to fuel the discussion at CONAREF. In response to the numerous flaws The conference returned to the key in the land law, and to the many points of the initiative: the financial criticisms that have been levelled at and administrative autonomy of it, particularly those concerning the CONAREF, and the decentralisation growing number of land disputes, in of CONAREF by creating provincial 2012 the President of the Republic committees for land consultations began a process to reform the land (comités provinciaux de concertation law. This reform process followed a sur le foncier or CACO). Of these political position paper that sets out a committees only two are active, in roadmap for the process. The launch North and South Kivu. of the reform was accompanied by a series of public consultations with In 2012, the World Bank also embarked civil society and experts on land on a study of the Congolese legal land issues and included the creation of tenure framework using the Land the National Coordination for Land Governance Assessment Framework. Reform (Coordination Nationale pour This resulted in a series of contro- la Réforme du foncier, or CONAREF). versies centred on the content of the Initially conceived as a structure for report, which our sources say was consultation and coordination between viewed by the government as too criti- the various actors active in the sector, cal. Since then, several changes in both our time in the field revealed a deep the ministerial strategy and CONAREF

38 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES have negatively affected the progress grabbing are carried out by local of discussions on land reform in the (provincial) authorities, or originate DRC. In general, civil society seems to from the national parliament or the gov- express a sense of “fatigue” and distrust ernment in Kinshasa. This is the case, towards the institutional process of for example, for the grabbing of 400 land reform. hectares near Kichanga, in the territory of Rutchuru, in North Kivu. In this case, Our informants suggest that internal the 400 hectares were purchased by disagreements within CONAREF government officials. These 400 hectares also revolve around differences of had been occupied by military personnel perspective concerning the very nature between 1998 and 2005 and were subse- of land sector reform. We can organise quently abandoned. The local population these differences into two “schools” of then began to practise agriculture there. thought. A “Kinshasa” school, linked to It was in 2015 that local government some land experts and members of par- officials, with the complicity of some liament who believe that the ineffec- provincial land administration officials, tiveness of the 1973 law is due to a lack managed to obtain titles covering the of enforcement of the law itself (e.g. entire concession with the aim of using the lack of the presidential ordinance it as a grazing area - without taking into regulating the customary domain) and account the tenure rights of the people insufficient popularisation. This first who had used the land in the years since school therefore proposes to focus on it was abandoned. UN Habitat North the application and amendment of the Kivu has worked to mediate the conflict, existing law, and sees no need for a new working in particular to ensure that land law text. local communities still have access to at least part of the land. However, the lack The second school of thought, which of concession titles amongst the popu- can be called the “peripheral” school, lation makes it difficult to assert their believes instead that the existing legis- rights of usage. Conflicts between local lation should be substantially modified communities and herders/authorities or even completely replaced by a new continue to this day. text. In particular, those who support this view would like to see a text that Similar cases can be found in Shinda centralises less power in the hands of and Katali, also located in the territory the state and gives more power to proof Rutchuru. In both cases, national vincial governments and Decentralised authorities managed to obtain titles for Territorial Entities, while clearly secur- concessions of 1800 and 492 hectares ing customary rights, including those respectively, partly occupied under of indigenous peoples. As we will see customary law and partly abandoned in the following part, it is often within during the war. In both cases, the local the interactions of national politics and mediation initiatives of UN Habitat land insecurity that opportunities to succeeded in restoring access to local abuse power in the DRC are created. populations on 284 hectares in Shinda and 155 hectares in Katali. Similar Land grabbing cases have been referred to us by civil There are several kinds of land society actors in South Kivu. It should grabbing reported by actors on the be stressed that exchanges with farmers ground. The most frequent types can and other civil society actors in North be grouped into three categories: Kivu have pointed out criticisms of UN Habitat’s mediation initiatives: • Grabbing by local and national these are often seen as very top-down, elites viewed as coming “from outside”, and In South and North Kivu, during our as seeking to “please” the farmers rather field visit, civil society actors reported than pursue their interests in a more that the most common cases of land concrete way.

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 39. • Land grabbing by extractive which are then made known to people industries living in mineral-rich areas. In North and South Kivu – and this is probably the second most common • Land grabbing by the agro-indus- type of land grabbing. The mining trial sector, the case code prevails over the land code, which of Bukanga Lonzo means that once minerals are discov- Land grabbing in the context of ered in the subsoil of a concession, agro-industrial operations has those farming there lose any right to attracted a lot of attention in recent farm the concession, which can be years, especially in the area of bio-fuel reassigned to private individuals who production. However, recent projects then mine its resources. Local commu- by the Congolese government are nities are meant to be compensated, likely to spur a new wave of land but this compensation is rarely fair or grabbing, guided by public-private reasonable in light of the fact that local partnerships between the government communities have to move, often to and foreign capital. This is the case unknown or infertile areas, in order for “agro-industrial parks”, which are to make way for extractive industries. very large land concessions intended Examples of this are very common in for intensive industrial agriculture North and South Kivu. We can cite a producing vegetables and animal prod- very recent example which was referred ucts. The project to create 8 of these to us by the BEST (which conducted agro-industrial parks emerged under a study on this issue); the Itombwe the first Matata government as part of Massif in South Kivu, in the territory an initiative from the Prime Minister’s of Mwenga. In this case, the Canadian office. The planned funding for these multinational BANRO obtained the projects had not been budgeted in rights to mine a significant portion advance. The first agro-industrial park, of the land around the massif, which the only one to have seen the light of contains gold. At the time of dis- day, is that of Bukanga Lonzo, 250 km placement, local populations were not south of Kinshasa. This park, managed compensated, and were displaced to by TRIUMF RDC, a multinational land situated at a height which was not company controlled by TRIUMF well suited to agriculture and mining, SOUTH AFRICA, covers 80,000 the two most common activities among hectares of land previously occupied by local populations. The company claims numerous local farmers. Local popula- to have received prior informed agree- tions in the area were expropriated and ment from the local people, but there displaced without any compensation or is strong suspicion that this agreement allocation of alternative land. Some of was negotiated with a small group of the local farmers remained working in local authorities. The company had the agro-industrial zone but, according promised to build schools and roads; to reports from the stakeholders the former turned out to be small interviewed, a majority left the zone makeshift straw huts, while the latter while refusing to be employed by failed to materialise. The local commu- TRIUMF RDC. According to our nity did not have the means to organise informants, there was no attempt to negotiations with the company. This is verify informed and prior consent from a scenario that has been seen several local communities. times in North and South Kivu, with BANRO as well as with other interna- According to information collected tional companies. This is an example of in the field, only 5,000 of the 80,000 the many problems that arise from the hectares occupied by the company are absolute supremacy of the mining code currently used for cassava and maize over the land code, and from the lack of production. These products are then clear and standardised procedures for sold at points of sale in Kinshasa which providing prior and informed consent are also owned by TRIUMF RDC.

40 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Following the displacement of are in South Kivu province. The project local communities, the National started with a phase studying and as- Coordination of Agricultural sessing land problems in the local com- Producers (Coordination Nationale des munities concerned. The programme Producteurs Agricoles, or CONAPAC) then set up a series of participatory ac- set up a multi-stakeholder dialogue, tivities aimed at identifying the status which did not really have any concrete of the different plots in the villages and results for the populations concerned. sub-villages of the chieftaincy (taking There is a lack of information about the into account the different forms of local dynamics in Bukanga Lonzo. It use laid out in the customary systems is also unclear where the government – salongo, kalinzi, bwasa, etc.), and plans to set up the 7 remaining creating local committees dedicated agro-industrial parks, but there is a to the issue (Survey Teams), who are strong likelihood that one of the next responsible for defining plots of land will be located in the Ruzizi lowlands in a participatory manner with local in South Kivu, an area that is already populations and for issuing “standard 88 heavily affected by land conflicts. land contracts”. These are para-legal documents that provide operators with Civil society initiatives “customary titles”. This intervention is The numerous legal, administrative one of the few in the country that seeks and land governance shortcomings in to solve the problem of land conflicts the DRC have prompted reactions from by securing customary rights. It is also Congolese civil society organisations, a reaction to the legislative vacuum in particularly in North and South Kivu, the provisions of the 1973 law. While 88 The project has also two of the provinces most affected by the standard contracts are being recently undergone an land insecurity. Two of these reactions signed, field teams are also creating a independent financial audit, which was confidential but are listed below. Both of these initia- detailed map of the plots in the area. then disclosed to the public. tives attempt to address some of the The map also specifies their boundaries This revealed numerous irregularities in the use challenges we have highlighted above, and the types of customary rights that of public money and in such as: are practised there. the rarely transparent management of the accounts, • The insecurity of persons exercising including large transfers of their rights of use within the Although these standard land contracts money to people close to the Prime Minister. customary sphere, and the legislative are not recognised or expected by vacuum that causes this state law (which, as noted above, lacks • The multiple cases of land grabbing provisions governing customary land by local and national elites rights), the IFDP and its partners aspire • Stagnation of political dialogue on to have these documents recognised at the reform of the current land law the provincial level by an edict of the • Local conflicts between families as Provincial Assembly. This edict, draft- well as between farmers and custom- ed in part by the IFDP and its partners, ary authorities was to be discussed at the South Kivu Provincial Assembly in September. In South Kivu, the NGO IFDP, supported by the NGO AAP and with The discussion with land tenure funding from the Swiss cooperation experts in the DRC, including the agency and CCFD-Terre solidaire, former cabinet chief of the provincial has set up an alternative system for governor and former member of securing customary usage rights. The CONAREF, revealed hesitation about programme aims to reduce community the optimism of civil society to see and (intra-)family conflicts through land tenure security practices incor- the creation of a management system porated into provincial law. In fact, for customary land. The programme although they appreciate the validity has been implemented in the Kabarean of the practices, local authorities and Chieftaincy since 2013 and partly in land experts were not the only ones to the Walungu territory, both of which point out the limited nature of such an

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 41. Figure 1. An example of the type of participatory mapping carried out by the IFDP, with delineation of plots and customary usage conditions in the Kabare territory

Source : IFDP

initiative, since its testing is limited to for land reform. In order to harmonise the Kabarean chieftaincy alone. These the different interventions and specific areas are therefore mainly populated approaches, the CACO (under the lead- by Bashi, who have a highly centralised ership of the FAT) began a consultation customary land management system process between the different actors. and are therefore different from that This resulted in the production of a joint of other ethnic groups in the province. mission statement which was published As such, the model tested in Kabare in July 2016. The Harmonised“ Mission may not be well suited to other local Statement from the Communities communities. It is therefore important of North Kivu on the Land Reform to refine this type of experiment and Process in the Democratic Republic test it in diverse environments. of the Congo”, produced with the financial support of the CCFD, HEKS/ In North Kivu, the discussion on land EPER and the American Jewish Service. issues addressed the stagnation of the Cordaid, RCN Justice & Démocratie and land reform process, seeking to offer Search for Common Ground financially a constructive dialogue to decision supported the production of the FAT makers at the national level. Within statement. The harmonised statement the CACO framework, three NGOs focuses on, among other things, the proposed mission statements addressed following: to members of the National Assembly in • Recognition of local customary Kinshasa. Between 2013 and 2015, these rights through their legalisation three NGOs, namely Aide et Action and recognition at the national pour la Paix (AAP), the Programme level; Intégré pour le Développement du • The recognition of property Peuple Pygmée au Kivu (PIDEP) and rights for local communities, thus the Forum des Amis de la Terre (FAT), breaking the monopoly of state each initiated internal consultations ownership; aimed at drafting terms of reference • Improving the structure of land

42 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES administration, in particular by Interventions by the EU creating land divisions at the level and Switzerland of municipalities and chiefdoms; Our exchanges in Kinshasa with • The recognition and legalisation the EU delegation and DEVCO staff of the rights of indigenous peoples pointed out that the EU does not cur- (Pygmies) by granting certificates rently have a land tenure programme to Pygmy communities; or land tenure policy in the DRC. • The establishment of a customary Although the EU has been involved registration system different from in the sector in Burundi and Rwanda, that governing land registration in the DRC is considered “too large” and the state domain; “too complicated” for a subject that is • Management of land disputes by “too political” to carry out structural ad hoc local committees before interventions there, as has been the recourse to the courts and judicial case in neighbouring countries. bodies; • The implementation of voluntary More than half of the EU’s resources prior consent processes before land for natural resource management in transactions take place. the DRC (not including the extractive industries sector) are channelled into The process took place within the local the management of areas which are CACO, with the support of UN-Habitat peripheral to the DRC’s five protected North Kivu. This organisation has also natural areas. In the past, the EU been a very important player in land delegation has invested money in the tenure in the province. It supported the consultation process implemented creation of the CACO and contributed by UN-HABITAT and followed to discussions concerning local cases of the debates on land law reform and land grabbing. studies carried out by the World DRC: ELITES AND LAND

I have been harassed for several months local and national elites that we know very « by the police and intelligence services well […]. I am also facing legal action because because of a conflict between the local of my advocacy regarding a land dispute population and the Congolese government. between part of the Kamanyola population The conflict began with an initiative by the and the Directorate General of Customs Congolese government, namely a part of its and Excise (Direction Générale des Douanes programme for five construction sites which et Accises or DGDA). This state service has plans to provide electricity throughout the appropriated 10 hectares of land, not far from DRC. This programme includes a joint project the Kamanyola border, which it registered in between the Congolese government and the its name despite the fact that the land actually Rwandan government to construct the Ruzizi III belongs to the local people.... If I’m fighting dam. Several infrastructure installations have like this, it’s because we have had enough. This to be built, but this requires a considerable not the first or second time this has happened. amount of space that is not available. It Ask anyone: if a national deputy or political, is within this context that the Congolese military or economic authority wants your government has expropriated a lot of land land, it’s enough for them to bribe the land from the local population in order to build registry, register your land and evict you from these installations. No compensation has been it. The state doesn’t help us, much the opposite. provided however. The local authorities have responded to the population that the State Official working at a civil society does not need to compensate local populations organisation at Kamanyola, RDC because the soil and subsoil belong to the State. Furthermore, some of the lands that have been illegally expropriated are now owned by

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 43. Bank. However, apart from the highly BURUNDI contextual interventions related to the management of the areas surrounding the parks, there appears to have been Land management: conflicts no intervention to support the land and population movements sector. This will continue to be the Since the 1960s, Burundi has experi- case for the time being. As already enced cyclical violence linked mainly mentioned, the main reasons for this to ethnic divisions: conflicts broke out lack of investment in land are linked successively in 1968,1972,1973,1988 and to the difficult political situation in the 1993. This situation led to the mass country, the ‘political’ nature of land departure of thousands of Burundians sector reform and a certain fatigue to neighbouring countries, leaving their with regard to the political process in lands behind. Many of them were sub- the DRC. sequently taken over by the State or by private individuals “in an effort to make What is even more surprising is the good use of a scarce resource”.89 The lack of initiative in promoting and dis- politico-administrative authorities re- seminating the ‘Voluntary Guidelines’. distributed the land abandoned by these The UE has funded the creation of refugees some time after their departure disclosure procedures and manuals for as if it were vacant land. While upon 89 Republic of Burundi the Voluntary Guidelines, and is fund- their return most of the 1993 refugees (2000). Accord d’Arusha pour ing the implementation of outreach and internally displaced persons were la paix et la réconciliation au Burundi, 28th August 2000, projects for the Guidelines, especially able to find their properties relatively Burundian Press Agency n° th in countries that have experienced easily and settle there, this was not the 6835, 29 March 2011, p. 119. 90 90 the phenomenon of land grabbing. case for the 1972 refugees. Republic of Burundi, Commission Nationale des The Guidelines and their implemen- Terres et autres biens (2010). tation manual include procedures for Upon their return after more than 30 Organisation et activité 2006- 2010, Bujumbura, CNTB, pp. informed and prior consent, fair and years of exile, these former refugees 1-3. It should be noted that equitable compensation and the com- were often challenged over their rights until the year 2000, the number of Burundian refugees munication of knowledge about the to their former land. However, these residing in Tanzania since rights of local communities. None of lands were seen as their only source of 1972 was estimated at about 200,000 people. See more on these projects are being implemented income and for thousands of them it this topic in: UNHCR (2002), in the DRC. also symbolised their identity. The prov- Statistiques sur la situation des réfugiés burundais au 29 inces most affected by these land grabs juin 2009, UNHCN. The Swiss cooperation agency has are the southern provinces of Bururi, 91 Ibidem been the only one to intervene directly Makamba and Rutana.91 Successive in the field of land tenure, providing governments since the end of the civil financial support for customary rights war in 2000 have attempted to respond protection initiatives set up by the by setting up commissions to settle IFDP as mentioned above. disputes arising from the resettlement of returnees and displaced persons to their lands (Manirumva, 2005). The most recent is the National Commission on Land and Other Property (CNTB), which has been operational since 2006.

But this form of land grabbing does not only concern periods of socio-political crisis. Since Burundi gained independence, local officials have been taking over state land while in power. Until 2011, this practice was all but legal. The new land code of 2011 is now attempting to remedy this problem by trying to clarify the methods of securing land

44 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES tenure, an attempt that will have to After the political transition and the be evaluated in the next few years. In first “post-conflict” elections in 2005, addition, since the end of the civil war the country attempted several types of in 2000, there has been a rush for land mechanisms to resolve land disputes. by the political elites who have been They fall into three broad categories: acquiring vast tracts of land for private traditional jurisdictional mechanisms, investments of various kinds. alternative mechanisms, and special mechanisms. Most land conflicts in Gradually, these land grabs (concerning Burundi are settled at the local level the land of refugees in 1972 and 1993, the through these mechanisms. The tradi- land grabbed by the State since 1960 and tional jurisdictional mechanisms result the land grabbed by political elites since from the intervention of the competent 2000) have had two consequences: (1) courts, which are generally Burundian they have created scarcity in a situation courts and tribunals. For example, the where land is limited, thus constituting courts of residence, in principle located one of the factors behind food insecu- in each commune, would have to deal rity;92 (2) they have also been the root with about 6% of these disputes (CNTB, cause of multiple land conflicts. 2008).

Until 2008, no investigation to our Alternative land dispute resolution knowledge had seriously established mechanisms are used when conflicting 92 In Burundi, 94% of credible figures on land conflicts parties agree to use local non-jurisdic- the working population is in Burundi. As such, it was almost tional means. The actors in alternative employed in the agricultural sector, which itself provides impossible to establish a typology. In land dispute resolution are civil society 95% of the food supply. The our opinion, the very first study that organisations, the bashingantahe (sing. average size of a farm is estimated at half a hectare. See: attempts to take up this challenge ubushingantahe) which favour com- Republic of Burundi, Finance is an analysis of “land tenure and promise between the parties. Some Ministry (2006). Cadre Stratégique de croissance et alternative solutions to the challenges of NGOs believe that this mechanism de Lutte contre la Pauvreté reintegrating disaster victims”, officially is more advantageous for litigants (CSLP), Bujumbura, Finance 93 Ministry, p. 52. released in 2008. It was undertaken by because it manages to resolve disputes 93 See: Republic of Burundi, the CNTB with financial support from in shorter timeframes thanks to a very CNTB(2008). Etat des lieux UNDP/UNOPS. The study identified simple procedure and proximity to des problématiques foncières au Burundi. Etude sur la 43,514 cases of conflict across a sample litigants (FORSC, 2010). However, this problématique foncière et les of 20 communes spread throughout mechanism has two main limitations: solutions alternatives face au défi de la Réintégration, Burundi. Although not reflective of all on the one hand, the mediator has no Bujumbura, September 2008. land conflicts in Burundi, this figure decision-making power; on the other gives an idea of their prevalence. It also hand, the resolution that emerges from reveals the existence of these conflicts mediation is not necessarily binding throughout the national territory and (OAG, 2008; Mudinga & Nyenyezi, their unequal territorial distribution. 2014). The bashingantahe deal with Conducted in 20 communes, this study 41% of land disputes, while the use of indicates that there is no direct relation- mediation by local NGOs concerns ship between the number of returnees 6% of these conflicts, and out-of-court and the number of land disputes. Of the conciliation without mediation accounts 70,284 returnees surveyed, only 10,511 for 16% (CNTB, 2008). are involved in land disputes, a rate of 15%. The report adds that the number of As for the special mechanisms for returnees in a region or locality is not settling land disputes, “they result from necessarily proportional to the number the intervention of institutions specially of conflicts in that region or locality. set up by the State to resolve exceptional This shows that the problem of land situations” (CNTB, 2008, 2). The prime conflicts in Burundi is more complex example of such a mechanism is the and covers several categories of the pop- CNTB itself, which has a mandate to ulation, as will be shown in an attempt settle disputes over land and other at a typology presented below. property between victims and third

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 45. parties or public or private services Accords, for which “any refugee and/or (CNTB, 2008). Although the CNTB affected person must be able to recov- is state-owned, it is decentralised and er his or her property, including land” 99 94 Arusha Agreement, therefore close to the local population, and, if this is not possible, they “must Protocol II, Ch. I, Art. 9 item and it deals only with conflicts related receive fair compensation and/or reim- 8 ; article 4, f. 100 95 to returnees. bursement”. Finally, the Agreement Republic of Burundi, CNTB, Rapport 2012, favoured a search for consensus be- Bujumbura, December 2012. All of these land dispute resolution tween acquired rights and the restitu- 96 International Crisis mechanisms are rooted in the Arusha tion of expatriates’ rights. Group (2003), Réfugiés Accords,94 but this does not specify et déplacés au Burundi : désamorcer la bombe fon- how they interact with each other. For When the first refugees returned, cière, Rapport Afrique, n° 70 example, while the reinstatement of these principles were scarcely applied. 97 UNHCR, Statistiques the Ubushingantahe is laid out in the However, a “National Commission for sur la situation des réfugiés burundais au 29 juin 2009. Accords (Protocol I, ch. II, art. 7, item Victim Rehabilitation” (Commission na- 98 Republic of 27), the 2005 legislative reforms exclud- tionale pour la réhabilitation des sin- Burundi(2010), Arusha Peace ed the bashingantahe from the official istrés, or CNRS) was set up in 2002 to, and Reconciliation Agreement for Burundi, op.cit., Annex Burundian judicial system . Although amongst other things, help returnees re- IV, Report of Committee IV, the opinion of the bashingantahe was cover their land. In 2006, the CNRS was Chapter 1 : Reconstruction and development, item 2, al. previously a requirement in court, they replaced by the “National Commission e). It should be recalled that now operate only in an extrajudicial on Land and Other Property” before the Arusha Accords, only decree-law No. 1/01 setting (Kohlhagen, 2010),. (Commission nationale des terres et au- of 22 January 1991, which tres biens, or CNTB) 101 whose man- replaced decree-law No. 1/19 of 30 June 1977 on the Lack of consensus on CNTB date is “to hear disputes relating to land reintegration of the rights of and refugee land and other property between victims and persons who had left Burundi following the events of 1972 Since the 31st of October 2012, third parties or public or private servic- and 1973, was the only legal the Office of the High Commissioner es”. The president of the CNTB at the reference instrument for land belonging to the 1973 refu- for Refugees has begun the repatriation time, Abbé Aster Kana, of the Hutu eth- gees., in : Arusha Peace and of the remaining 35,000 Burundian ref- nic group, was said to have favoured Reconciliation Agreement for Burundi, (AAPRB), Annex ugees living on Tanzanian soil in the conciliation and mutual tolerance be- IV, Report of Committee IV, Mtabila camp.95 These are the last of tween the people concerned, whom he item 1.2.3. b). 96 99 the 800,000 Hutu refugees who end- first brought together in order to en- Republic of Burundi(2000), Arusha ed up in several Tanzanian camps as a courage them to seek a fair and equita- Peace and Reconciliation result of the politico-ethnic conflicts in ble solution.102 Agreement for Burundi, 97 , Annex IV, Report of Burundi since 1962. When these ref- Committee IV, Chapter 1: ugees departed, their land was system- As on the one hand refugees demand- Reconstruction and development, item 2, al. e). atically occupied by their neighbours or ed the full and unconditional reinstate- 100 Ibid., Art. 8 al. B assigned to new occupants on the or- ment of their original rights, and the oc- Protocol IV. Arusha. ders of the public administration at the cupiers demanded the same in the name 101 Governed by law No. time. As a result, many of these refugees of their acquired rights, the CNTB pres- 1/17/2006 covering the Aims, Composition, Organisation were unable to reclaim their land once ident then tried to find a compromise by and Operation of the CNTB. repatriated, leading to numerous land asking that the government not main- From 2006 to today, the CNTB has recorded nearly disputes. At the end of the civil war, the tain the continued threat of land resti- 30,000 complaints, of which Arusha Peace Agreement called for re- tution, but support an intermediate po- nearly 20,000 have been concluded and 10,000 remain turning refugees to be able to recov- sition of land sharing. As a result, more unresolved. er their occupied land with the help of than 12,000 cases of land disputes have 102 98 See: Republic of Burundi, the government. The Agreement set been settled amicably since 2006. When CNTB, State of Play of Burundian Land Tenure out several principles regarding the re- Abbé Aster Kana died in 2009, he was Issues, Communication turn of refugees. Firstly, it had to be vol- replaced by Monseigneur Bambonanire à l’Atelier national de présentation de l’étude sur untary and carried out with dignity and Serapion, of the Hutu ethnic group, who la problématique foncière et in guaranteed safety. Secondly, welcom- called the whole approach of his prede- les solutions alternatives face aux défis de la réintégration ing mechanisms had to be set up. In ad- cessor into question. For Monsigneur des sinistrés, 24th to 25th dition, the Agreement called for the re- Bambonanire, sharing between the oc- September 2008. cuperation of refugee lands to be car- cupants and returnees would main- ried out in accordance with the laws of tain the status quo of conflict and would Burundi and the principle of the Arusha constitute a flagrant denial of justice. He

46 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES therefore recommended full restitution, iation and social peace) were reopened which he saw as a guarantee of lasting at the request of returnees at the risk of peace. further bloodshed the country”.105 For example, Article 19 of the law governing Since 2012, several judges, members of the CNTB stipulated that “in the event civil society, clergy and customary me- of failure by the Commission to reach diators, all intervening directly as “me- an amicable settlement, the interested diators” within various land dispute res- party may bring the matter before the olution mechanisms, have opposed such competent court and the Commission’s an approach. Except for judges in the decision shall remain enforceable un- traditional courts, most of these me- til all legal remedies have been exhaust- diators are in favour of the approach ed”.106 This law is unconstitutional ac- of sharing land between returnees and cording to several opposition parties. land-owners. Judges, on the other hand, Indeed, the Burundian constitution pro- are very divided on this issue and seem vides that there must be no institution- to favour the “acquired rights” of occu- al pluralism that would lead to conflicts 103 107 Interview with one of the pants. Several Hutu political actors have of authority in the judicial sphere. In occupiers’ representatives, blamed the approach of these judges on order to escape this unconstitutionality, Cibitoke, August 2017 104 ethnic affinities, arguing that “the judg- the Burundian government has set up a Ibidem. 105 es, who are predominantly Tutsi, try to special court for land and other proper- Interview with use the rigour of written law for the ben- ty where those who are opposed to the civil society representatives, Bujumbura, August 2017. efit of their Tutsi brothers who have tak- decisions of the CNTB can now appeal. 106 See for example the en over the lands of the Hutu forced to This court, however, applies the princi- report of the press conference go into exile during the war”. The same ples of the CNTB to the letter. on the CNTB led by former president Jean-Baptiste view is expressed by some customary Bagaza on the 12th December mediators, NGO mediators, or clergy. There is therefore still a deep division 2012. 107 within Burundian society on how to See: Republic of Burundi. Constitution (2005), Title Between 2012 and 2014, there has been a deal with the thousands of conflicts in VII. 108 huge increase in the number of appeals Burundi. Added to this is the fact that See: Swiss Agency against decisions that resolved land dis- since the 2015 crisis, more than 400,000 for Development and Cooperation (SDC), « Devis- putes through an approach of amica- people have left Burundi, leaving their programme N° 2, période de ble land sharing between returnees and land at the risk of it being taken over croisière du 1er juillet 2008 au 30 juin 2009 », Gutwara Neza occupants. Since 2009, the law has al- once again. programme, Bujumbura, lowed recourse against out-of-court set- 2008. « Document de Challenges of the land tenure planification Burundi 2007- tlements previously coordinated by the 2010. Programme de gestion CNTB. The occupiers who have shared securitisation programme décentralisée des terres dans la Province de Ngozi », the land with returnees believe that the As in many sub-Saharan African coun- Bujumbura, November 2006. 109 CNTB should try to find a solution for tries, Burundi has launched the land Republic of Burundi peaceful coexistence between residents tenure securitisation programme in (2008), Arusha Peace and Reconciliation Agreement for and returnees. Their position is based 2007, which was initiated and piloted by Burundi, Arusha,. on the fact that they believe it “is not external donors.108 This programme is easy to establish exactly who has really part of a strong demand for land reform has the right to this land”.103 They also at both local and national levels. This recall that “the Arusha Accords stip- demand is reflected first and foremost ulate that residents should give up the in the 2000 Arusha Peace Agreement, land they had occupied after receiving which politically sanctions the end of accompanying measures that would en- several decades of political and ethnic able them to continue to live”.104 conflicts and civil war in Burundi. This Agreement stipulates that “Burundi’s According to some Burundian civil so- Land Code must be revised in order to ciety organisations, “tens of thousands adapt it to current land management is- of land disputes concluded by amicable sues”.109 settlement under the chairmanship of the late Abbé Kana (which attempted to Since the beginning of the 2000s, sev- reconcile law, equity, national reconcil- eral factors have made it possible to es-

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 47. tablish a consensus among the vari- used centralised data collection at the ous national and international stake- commune level, rather than partici- holders on the need to reform the land patory approaches, which are consid- code. These are mainly the limita- ered too costly by the government. tions of the 1986 land code, the scarci- • The physical construction of the ty of land in relation to demographics, SFC, composed of a communal land the multiple conflicts over land relat- service office with related equipment. 110 111 ed to returnees and repatriates, etc. • Determining how the SFC will oper- However, it was not until 2008 that a ate. The Burundian government ex- Land Policy Paper112 could be prepared. pressed the view that the cost of the

110 It was this Land Policy Paper that would SFC pilot projects was too high in These terms (‘repatriés’ 113 116 and ‘retournés’ in French) are serve as the basis for the land law terms of equipment. It therefore used in Burundi to designate passed by the Burundian Parliament in proposes to minimise costs, in par- internally displaced people returning to their villages 2011 and which would form the founda- ticular at the office and rolling stock of origin. See: Republic tion for land securitisation initiatives in level, which could have a negative im- of Burundi, CNTB (2012), Organisation et activité 2006- Burundi. pact on the quality of data retention 2010, Bujumbura, CNTB, , and the speed of service response. pp. 1-3. 111 This land tenure securitisation pro- The same issue of costs emerges again See: Republic of Burundi gramme is based on the premise that with regard to the choice to be made (2008), , La Lettre de poli- tique foncière, pp. 3-6. most land conflicts in Burundi are by the Communal Council on the 112 See: Decree No. 100/72 linked to the failure to secure land arrangements for a paper-based or of 26th April 2010 adopting or to the ineffectiveness of informal semi-computerised SFC. the Land Policy Paper in Burundi. conflict mediation bodies. As such, 113 See : Law No. 1/13 of 9th the programme has two objectives: Once the SFC has been physically con- August 2011 revising the peace-building by aligning land registra- structed, the recruitment and train- Burundi Land Code. 114 tion authorities (starting with the decen- ing of land officials is planned, who Republic of Burundi, law no.1/13 of 9th August 2011 tralisation of land tenure), and the pro- will then provide information and raise revising the land code. motion of rural development and pover- awareness amongst the population. It is 115 This diagnosis results in ty reduction through access to credit. intended that these officers will be -as an analysis of the land situ- 117 ation in the commune and sisted in each commune by a Colline an analysis of the financial The land tenure securitisation pro- Survey Committee (commission de re- and material capacity of the gramme in Burundi supports the com- connaissance collinaire or CRC), whose commune. 118 116 munes’ creation of communal land members will be trained and will See Republic of Burundi, Ministry for services (services fonciers commu- work on a voluntary basis. Once this Water, Environment, Land Development and Urban naux, or SFCs) whose purpose is laid step is completed, the certification Planning (2013), Ibid., pp. out in Article 384 of the Burundi Land work can then begin at communal lev- 9-11. Code.114 This is purely a matter of sup- el. Firstly, a survey of the colline is car- 117 A ‘colline’ (French for port however; according to article 398 of ried out, which consists of a field trip to ‘hill’) is a sub-division of a 119 commune. the same code, it is up to the communes describe the plot of land and draw up 118 A portion of these to decide on the creation of SFCs if they a summary plan. A report must then be members are elected by the so desire. Since 2007, several provinc- prepared which may either agree to is- inhabitants of the colline. 119 es have already been accounted for by sue the land certificate, suspend the pro- This description includes the location, development, these SFCs, which can be found in some cess pending resolution of objections, or and estimated area, and thirty communes in Burundi and which refuse to issue the land certificate. It is identifies the boundaries and benchmarks used. are financially and technically assisted important to note that at this level, an by various donors. ongoing challenge is the management of land service data (ranking and archiv- The institutional creation of a SFC in- ing), and the transmission of this data to volves several steps, including: the provincial land registry teams that • Thesociological land tenure diag- prepare communal land plans. nosis, which allows the request to secure land tenure to be analysed, Beyond this procedure, consideration and aims to assess the possibility must also be given to managing chang- and feasibility of securing land ten- es that occur to the elements covered ure through a SFC.115 This step has by the land certificate. These may be

48 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES the transfer or fragmentation of regis- BURUNDI : LAND CONFLICTS tered plots, or the recording of respon- AND MIGRATION sibilities. Both procedures require an- My grandfather was born in 1927 in the centre of the country. In the 1940s, other surveying trip, which is manda- « his father received land in the north-eastern part Burundi we call the pea- tory for fragmentation and desirable sant farms [...] That is the land my father inherited in 1975. It is also the land that 120 for transfer. It should be noted that a Burundian family from Tanzania came to claim in 2005. This was a family Article 410 of the 2011 Land Code gives that fled Burundi in 1972 because of the conflict. The head of this family left Bu- the possibility of transforming the land rundi when he was five years old and believes that his father had told him be- certificate into a land title. In this situ- fore he died in Tanzania that he would one day have to go to Burundi to reclaim ation, it is the transformation applicant their land, that is, my parents’ land [...] At first, we resisted because we knew that who submits the entire file to the land these lands had always been part of our family since colonisation. But these service. After the application has been people from Tanzania insisted so much that the CNTB finally arrived to explain posted for a fortnight, the land service is to us that we should share, that is, give part of this land to these returnees. For then responsible for transferring the file the CNTB, it was important to do so in the name of peace and to help those re- to the relevant land titles department. fugees who had nowhere to go. We ended up accepting because the priest who was then president of the CNTB had spoken with the parish priest of our church Finally, an experiment using grouped to convince us.... While we were already living in peace with these returnees in survey operations (opérations groupées 2009, before the elections, we saw police officers arrive on our land to explain to de reconnaissance, or OGR) has been us that we should leave and leave all the land to these returnees. We didn’t un- carried out in Burundi, but this requires derstand anything. Listening to the radio, we learned that we were not alone. a great deal of resources that most com- The new president of the CNTB no longer wanted returnees and landowners to munes do not have at their dispos- share [...] The ruling party politicised the CNTB and we ended up on the street. I al. This initiative is ideally launched by went to court, won the trial but my judgment was never put into action. the Colline Council in order to system- Farmer, 42 years old, Cibitoke, Burundi atically survey land across the colline. Land officials head into the field and use GPS to speed up the surveying of plots. The surveying method used with- influence, this results in the SFCs failing in the OGR framework complies with to function as intended. the same legal conditions applied to individual surveys. This method results in The problem with this reform is main- numbered batches and plots of land, de- ly linked to its systematisation, which scriptions of neighbouring areas, and fi- seems unlikely. The Swiss coopera- nally the production of a collective plot tion agency is completing its land ten- plan. This serves as a land information ure programme in Burundi this year management tool for the commune, as and does not intend to continue further. well for those who wish to apply for a The same is true of the European Union, land certificate, which is an individu- which has not planned to renew its own al deed. programme. 120 See: Republic of Currently only about 50 of the 133 com- Land reform partners: Burundi, Ministry for munes in Burundi have an SFC. Most of initiatives and stalemates Water, Environment, Land Development and Urban these are donor-led pilot projects, some Planning (2013), Ibid.., p. 25. of which are already being closed down Swiss cooperation without the promise of continued fund- and the European Union ing. Furthermore, the local opinion in The Programme to support decentral- the communes that already have these ised land management in the Province SFCs is divided as to the need to seek of Ngozi (6 communes), supported by a certificate “so long as the neighbours the Swiss cooperation agency (SDC), and the elders do not contest their re- and the “Gutwara Neza” programme spective properties”. In addition, very to support good governance from the few land users in these communes re- European Union (EU), which operates turn in order to record transfers or frag- in the Provinces of Gitega and Karuzi, mentation; given that the departure of are the main cooperation projects that foreign landlords is often a disruptive have tried to support the focus on de-

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 49. centralised land management to pro- Secondly, the EU programme has in- mote land securitisation. The Dutch cluded a range of activities under the government has also supported the sec- rule of law component (justice sector) tor in recent years. including the establishment and support of land services in the provinc- Firstly, the SDC has been the leading does of Gitega (3 communes) and Karuzi nor in Burundi’s land sector for rough- (4 communes). This program came to ly the past ten years. The SDC project is an end several years ago now. Currently, a pilot experiment in the implementa- with regard to the land sector, the tion of communal land services for reg- EU indirectly supports a land project istering farmers’ plots and issuing cer- through GIZ, a project which aims to tificates of land ownership. As a matter contribute to improving the manage- of fact, the SDC has been implementing ment and governance of state land. It this project in Burundi as part of its re- also aims to create the necessary con- gional programme to support land man- ditions for improving the management agement since 2008. The SDC has been of private land. This project was ap- contributing to peace-building in the proved in 2014 and is being implement- Great Lakes Region since 2004, in par- ed in all communes across Burundi, ticular by working on land conflicts. with the exception of communes where this work has already been carried out, This programme also contributes to na- that is to say 119 of the 133 communes in tional land reform through its support the country. The project also plans le- for the promotion of a legal and regu- gal support for local populations and ad- latory framework and national coordi- vocacy at the governmental level, still nation of the land sector. The SDC pro- within the public lands sector. gramme is currently in its third phase, which was due to conclude at the end of This project was funded to the tune of December 2016 but has been extended 6 million euros (5.5 million by the EU until the end of 2017. and 0.5 million by Germany). The EU drew this funding from regional funds Switzerland believes that the pro- in order to address the issue of land gov- gramme has already achieved several ernance. The purpose of the project is successes, including: conflict prevention, to conduct a census of all state-owned examples of conflicts resolved amicably lands while integrating a better under- when land was identified, the identifica- standing of conflict resolution. Elements tion of land as part of grouped or indi- include: vidual initiatives, subsequent land certi- 1. The recording of non-confrontation- fication, the establishment of a National al areas of land with the land registry Land Commission with a permanent and land title service coordination unit, and the implemen- 2. The rovisionp of legal assistance, aim- tation of certain texts applying the 2011 ing to support mediation and conflict Land Law. At the same time however, it resolution, as well as some legal as- admits that there are still many prob- pects of implementing land reform lems related to the appropriation of the 3. The establishment of a roadmap for programme by the government and the a national approach to systematically communes, the political will to move securing land tenure which can then forward at the national level, the finan- be prepared and adopted, as well as cial empowerment of land tenure offic- continuing financial support for cer- es, the systematisation of the land ten- tain SFCs ure offices throughout the country, the recording of changes or transfers after So far, some results have been achieved: any transaction, the halting of certain • Collection, analysis, harmonisa- activities since the 2015 crisis, and the tion and integration of existing state- obstruction of women’s rights. owned lands • Definition and development of the ar-

50 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES chitecture of the state-owned land in Burundi, which was established by 14 database (SIG) organisations in 2011. The ‘Synergy’ is an • Testing and deployment of equip- independent and non-political structure ment, procedure manuals for exchanges, reflections, coordina- • Pre-identification of state-owned tion and actions on land. It has the over- lands all objective of contributing to meth- • Development and enactment of im- ods of land management and govern- plementing legislation for the inven- ance which prevent conflicts and stim- tory of state-owned lands ulate development in Burundi. It does • Subsidies to three existing communal so through the involvement of civil soci- land services, previously financed by ety, which offers continuous input into concluded FED projects the debate and solutions to the sector’s challenges. The Synergy’s aim is also to But there is still much to be done, par- support member organisations in the ticularly as regards the appropriation of achievement of their common objectives the entire process by a government that and plans in relation to land issues, in does not seem to see the value of such a line with its own overall objective. programme. For example, an activity report has already been produced but the The Synergy is composed of nation- government seems unwilling to have it al and international organisations. distributed. The project is nonetheless National organisations are in the ma- expected to end in early 2018. jority. These include the following organisations: Association Burundaise Thirdly, the Kingdom of the des Elus Locaux (ABELO), Association Netherlands also supports the pro- Ceinture Verte (ACVE), Association gramme of governance and land reform. des Femmes Juristes du Burundi For example, the multi-year Strategic (AFJB), Association des Juristes Plan 2012-2015 from the Netherlands Catholiques du Burundi (AJCB), Agence Embassy focused on the provinces of de Renforcement des Capacités et d’ Bubanza, rural Bujumbura and Cibitoke Appui pour le Développement Rural et l’ in its targets for land reform. It also Environnement (ARCADE), Biraturaba, planned interventions in the area of Fondation Intahe, Organisation pour la land securitisation as a key element in Défense de l’ Environnement au Burundi improving food security through agri- (ODEB), Union Chrétienne pour l’Educa- cultural intensification. Currently, in- tion et le Développement des Déshérités direct bilateral cooperation projects (UCEDD), Unissons-Nous pour la (OAN) are continuing to work on land Promotion des Batwa (UNIPROBA) and tenure. These are mainly the work of Ligue ITEKA. International organisa- ZOA, which operates in Cibitoke and tions include: ACORD, Global Rights, Makamba. CISV and RCN - Justice & Démocratie.

Civil society in Burundi This Synergy of civil society organisa- Civil society plays an important role tions on land issues in Burundi repre- in the management of land conflicts in sents a number of interests. First, it re- Burundi through alternative dispute flects civil society’s commitment to con- resolution mechanisms. These mecha- tributing to peacebuilding in Burundi. nisms come into play when the parties This synergy aims to contribute to the agree to submit their disputes to non-ju- reduction of land disputes, which now risdictional means of dispute resolution. account for more than 70% of the dis- The civil society organisations involved putes registered in courts and tribunals. here include associations, NGOs, the It also wants to contribute to peace in bashingantahe, churches, etc. the country by taking into account that these land conflicts are also a source There is also a partnership between civ- of insecurity (killings, gender-based vi- il society organisations on land issues olence, etc.) observed throughout the

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 51. country. Finally, this Synergy aims more According to its members, these weak- generally to influence not only govern- nesses could be transformed into ments but also other groups or public strengths by rethinking the Synergy’s vi- opinion on specific land sector issues. sion. The Synergy should therefore focus on concrete problems requiring ur- Each organisation informs the oth- gent and necessary collective action, in- ers of land news and data collected on stead of formal monthly meetings which the ground (observed land code viola- are often without substance. This would tions, information gained from listen- require a coordination unit. This could ing to the population’s complaints about be provided with an office, a secretary the quality of services provided by the and a minimal amount of supplies and Communal Land Services, cases of ex- computer equipment to maintain the propriations, etc.), which is shared in administrative records and the proper the form of reports during the month- functioning of the Synergy. It could also ly synergy meetings on advocacy. The be responsible for diversifying partners same reports are shared at a higher level and mobilising funds to finance activi- in the Land Sector Group, bringing to- ties specific to the Synergy. It would also gether all the stakeholders in this sector. be responsible for maintaining links be- Joint missions (state and non-state ac- tween member organisations by mobi- tors) are organised for the assessment of lising them around this collective in- the status of land code implementation terest, which should then be advanced by administrative agents at the grass- amongst other partners. As a result, it roots level. As a result, the voice of civ- could empower member organisations il society is heard by state actors and a and involve them more fully in Synergy positive transformation of land manage- activities. In that respect, it is only the ment practices is observed. Synergy’s unity, cohesion and readiness to act when necessary that could in- However, although the objectives are crease the scope of civil society’s mes- clear and legitimate, the Synergy of civ- sage to decision-making bodies and al- il society organisations on land tenure ter the direction of land policies. issues in Burundi does not yet have the sufficient and necessary resources which could provide it with a strong ability to act and give it considerable expertise and power in the field. In fact, during its three years of existence, it has functioned thanks to the financial and technical support of Global Rights, but this support ended at the end of February 2014. The Synergy also suffers from the low levels of participation by delegates from member organisations in its activities. Delays and absences are observed in monthly advocacy meetings and in the Land Sector Group. Furthermore, the advocacy system and its scope are not sufficient. The voice of civil society on land tenure has not gone beyond the Sectoral Group to reach high levels such as the National Land Commission, the Interministerial Commission on Land Tenure, the Strategic Forum and the Political Forum.

52 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Part III

EVALUATION its various interventions in developing AND RECOMMENDATIONS countries. In particular, EurAc is concerned that no form of strong ownership of the Voluntary Guidelines Concerning the EU’s vision will come from the Commission or and commitment in the field Parliament. As the name implies, of land tenure these Guidelines depend on the EurAc considers that, in general, the benevolence of States for their imple- EU’s approach to land tenure issues in mentation. The European Parliament developing countries is commendable. and the Commission should provide The 2004 policy document (see point direct incentives for Member States to 3.1) and DEVCO’s commitment to be able to clearly specify the legislative promoting and disseminating the tools and institutional mechanisms. Voluntary Guidelines are an integral This will ensure that the principles of part of the criticism of neo-liberal ap- the Guidelines are integrated into the proaches to land tenure. In particular, development cooperation interventions the 2004 document is concerned with of Member States, and above all, into the social and environmental conse- the principles that guide foreign quences of land tenure, with particular investment by their companies. attention given to the rights of women and indigenous peoples. It is important In addition, EU support for the Land for the top donor of development assis- Policy Initiative also raises issues of tance to have a nuanced view of land coherence. Although the EU declares issues, and to adopt a position that em- that it supports peasant and family phasises the adaptation of land models farming, aligning itself with the de- to local realities while highlighting the velopment policies of the AfDB or importance of heterodox approaches the AU also means opening up to an that are not ultimately based on indi- agro-industrial investment model that vidual land titles as a solution to land endangers the rights of local popula- problems and conflicts. tions and has proven to be contrary to the interests of small producers in Likewise, EurAc welcomes the approval the past. In its increasingly strategic that the Voluntary Guidelines have partnership with the African Union, found in the Commission and, more the EU should position itself as a criti- specifically, in DEVCO. Once again, cal voice, bringing with it considerable the European Union has been at the experience in studying issues and forefront in developing and disseminat- development practice while being able ing a crucial document to ensure fair, to critically examine the link between equitable and sustainable land govern- land, development and the protection ance. However, EurAc also notes that of the rights of local communities. this commitment remains stronger in policy texts and speeches than in prac- Finally, the Union’s internal policies tice. At this level, the EU suffers from may also conflict with the principles a strong inconsistency between the set out in the 2004 policy document. spirit of certain policies that it puts on A clear example is the EU’s strategy the agenda and the practices found in for agrofuel production, a programme

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 53. that elicited strong reactions from In general European civil society as it indirectly EurAc calls on: stimulated large-scale land grabbing • TheEuropean Commission, and in by European investors seeking land particular DEVCO, to consider inte- for the production of raw materials grating the principles contained in for the production of agrofuels. The the Voluntary Guidelines at the heart Commission has sought to solve the of the Union’s development policies. problem by amending the directives This means integrating them into regulating the agrofuel supply sector any land intervention project set up and by setting minimum thresholds by European cooperation 121 for changes to land use. This is • TheEuropean Commission, and a first step towards respecting the in particular DEVCO, to take the rights to food security and access initiative in establishing binding to land for people living in areas of legislation applicable to European large-scale agricultural investment, companies, which provides for 121 Directive 2009/28/EC of the but this is only one example. There is mechanisms for due diligence in the European Parliament and of the Council of 23 April 2009 in fact no European regulation that event of large-scale land investment, on the promotion of the use obliges private investors to set up based on the principles of the of energy from renewable sources and amending and mechanisms for assessing the impact of Voluntary Guidelines subsequently repealing their investments, nor regulation that • TheEuropean Commission, and Directives 2001/77/EC and 2003/30/EC obliges them to safeguard and advance in particular DEVCO, to maintain the interests of local communities. and expand the scope of existing In EurAc’s view, it is time for the EU programmes for the extension of the to engage fully in promoting fair and Voluntary Guidelines, with a specific equitable land tenure systems, and to strategy for the Great Lakes region incorporate the Voluntary Guidelines • TheEuropean Commission and as a guiding principle of the Union, the European Parliament to use officially recognised by the institutions existing political and institutional of the Parliament and the Commission mechanisms (e. g. the Africa-EU as the official guideline for European Partnership) to re-launch the policy companies’ investment in land. dialogue on land tenure in Africa, with particular attention given to European investment and the protection of the rights of indigenous peoples, women and minorities.

54 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES To the Frech Development Regarding interventions Agency, regarding the into land tenure by the EU implementation and Member States of the Voluntary Guidelines EurAc and its member organisations REGARDING welcome the commitments made INTERVENTIONS by France and AFD through the IN RWANDA Technical Committee on Land Tenure and Development, the numerous Regarding interventions by the EU delega- initiatives to disseminate the Voluntary tion to Rwanda, by DEVCO, SIDA Guidelines, and in particular the and the Dutch development cooperation creation of the ex-ante analysis guide The commitment of EU member coun- for agricultural investment projects tries, and in particular DFID, has been with land rights. However, we find it crucial for the implementation of the land surprising that the Guidelines have not rights regularisation project in Rwanda. integrated this guide in a structural However, there are still gaps in the way in the development projects pro- implementation of the project, detailed moted by AFD or in the investment in chapter 2 of this report , namely: the projects of similar private entities lack of knowledge of good practices to be within PROPARCO. Furthermore, followed by users, women’s difficulty -ac it is the players brought together by cessing land, the high costs of obtaining PROPARCO that are most likely to titles, the persistence of land conflicts, engage in large-scale land investments. the updating of the LAIS, and concern for training and capacity building for the • EurAc asks AFD and PROPARCO to abunzi. systematically adopt the ex-ante analysis guide for agricultural Following its field visit, EurAc understands investment projects as a pre-evalu- that the support provided by European ation tool for projects that have an donors will end in June 2018 - the end impact on the land sector. date of the land securitisation project. Only the Swedish cooperation remains EurAc is also concerned that the ex-ante involved, providing a support and guide for the analysis of agricultural capacity building programme for the land investment projects with land rights is office.Eur Ac considers that continued limited to an exclusively ‘agricultural’ support in the following areas is needed. approach, while the adverse effects of the land investments it deals with are • EurAc recommends that European common to several sectors, including donors (DFID, DEVCO, SIDA, Dutch energy, resource extraction and real cooperation) continue to support estate. land reform processes by focusing their financial support on the prob- • EurAc asks AFD to broaden the lematic aspects of the programme. ex-ante analysis guide’s scope of use for agricultural investment In particular: projects by systematically applying • Continue to support the updating it to any project involving changes of the LAIS and the training of land in use, rights of use and land own- office managers; ership, and not only to agricultural • Support efforts to popularise the programmes. land law, especially with regard to women’s right to inheritance; • Support the Rwandan government in the training and capacity building of mediator committees (abunzi) as a mechanism for resolving conflicts at the grassroots level.

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 55. • European donors should also take REGARDING ownership of the evaluation of the INTERVENTIONS securitisation programme supported IN THE DRC by DFID in order to develop a reflection on the advantages and Regarding interventions by the EU delega- constraints of programmes with a tion to the DRC and DEVCO securitisation-based approach. The EU’s withdrawal from the land sector in DRC is understandable but Regarding the political dialogue of the EU de- worrying. EurAc understands that in the legation to Kigali on land issues current context of political uncertainty The EU is committed to ensuring that in the DRC, it is difficult to envision a its development cooperation policies long-term commitment to the process contribute to poverty reduction and the of land tenure reform. It is also true protection of human rights. However, that some of the EU’s past commit- the EU has rarely intervened with its ments have not yielded encouraging Rwandan partners in cases of violations results or promising consequences of the rights to access land held by all for the land reform process. But it is Rwandans. also true that land remains the basis for building peace and stability in the • EurAc calls for any EU support to DRC. As we have shown in the third Rwanda for the management of chapter of this report, many civil the land tenure system or access society initiatives are attempting to to justice to be contingent upon a implement community-based forms of public and independent inquiry into conflict resolution and to secure land recent cases of land rights violations rights on a daily basis, particularly in by military and police authorities. relation to customary rights.

Regarding DFID support for the land securiti- • The EU should financially support sation programme these types of initiatives, particu- Although the programme is coming to larly as they have, as in South Kivu, an end, there has been no comprehensive the potential to fit into the pro- evaluation of its impact. Following our vincial legal framework, which is visits to Kigali, we received mixed and likely to ensure their sustainability inconsistent responses on the planning of over time. a program evaluation - which is not available at this time. Given the importance In addition, EurAc invites the Delegation of this programme for Rwanda, and its to support the discussion on the land influence with other donors and African reform process at grassroots level by countries. civil society organisations. Indeed, in the DRC, the spirit of decentralisation • EurAc calls on DFID to carry out a was at the heart of the national-level thorough, independent and publicly reform initiative. accessible impact assessment. • The EU should financially support • DFID should also conduct an impact initiatives to produce provincial assessment on the livelihoods terms of reference and discussion and food security of small-scale forums on the reform process. agricultural producers and should Trials similar to those run by not confine itself to accounting for the North Kivu Consultative land registered as an indicator of Committee should be supported success. This evaluation should also with the aim of developing them, be shared with other donors involved as they could serve as a future in the process and with the Rwandan basis for innovative initiatives in government. land governance.

56 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Finally, it is surprising that DEVCO, REGARDING which is involved in the dissemination INTERVENTIONS of the Voluntary Guidelines in a sig- IN BURUNDI nificant number of African countries, has not planned similar activities in the Regarding interventions by the SDC in Bu- DRC. Given the conflicts between the rundi land code and the mining code, and in This year, the SDC is completing its view of the importance and potential of programme for the support of decen- mining in the DRC, it is important that tralised land management in Burundi. Congolese citizens and civil society Although this programme has resulted organisations are aware of the exist- in the registration of a large amount ence of this instrument, which could of land, there are still significant provide them with solid arguments in problems in terms of ownership of the their advocacy and monitoring proce- programme by the Burundian gov- dures regarding the expropriations and ernment, as well as a need for capacity abuses that they have often suffered. building and resources for SFCs.

• EurAc therefore calls on DEVCO • EurAc calls on the Swiss coop- and the EU Delegation in Kinshasa eration agency to maintain its to commit themselves to spreading involvement in Burundi and, above and popularising the principles of all, to engage in capacity building the Voluntary Guidelines in DRC. for decentralised actors, without which the work carried out by the Regarding interventions by the SDC programme in recent years risks in the DRC being lost. EurAc appreciates the commitment of the Swiss cooperation agency to The Swiss cooperation agency is the securing land rights in Eastern Congo leader amongst donors who have now (see para. 3.5). Given the variety of been working in the land sector in local contexts and the many different Burundi for ten years. It has exception- of forms of customary management al expertise in this field. present in the DRC, it is essential that Switzerland renews its commitment • EurAc asks the SDC to make to securing customary rights and feasibility studies, evaluations redoubles its efforts in order to achieve and assessments of its experiences a standardised system which can be available to the Burundian govern- replicated in other parts of the DRC. ment. These documents will enable • EurAc calls on the SDC to continue the Burundian government to as- its support for methods of securing sess the feasibility of systematising customary land rights and the or- land offices in Burundi. ganisations that implement them. Regarding interventions by the EU delega- • EurAc invites the SDC to support tion, DEVCO and GIZ in Burundi similar projects in other parts of The indirect involvement of the EU, the DRC, so that the variety of through GIZ, has laid the groundwork experiences can improve sustain- for the creation of a state land register. ability by testing the model in This process has been useful to support culturally different areas. a future Burundian government in a genuine process of reforming and reorganising the land tenure system. However, EurAc understands that Burundi’s serious political deadlock makes any long-term commitment difficult.

FOR A RENEWED ENGAGEMENT BY THE EU AND SWITZERLAND IN LAND GOVERNANCE IN RWANDA, BURUNDI AND THE DRC 57. • EurAc therefore calls on DEVCO Regarding women’s rights to access land and GIZ to continue working in Burundi does not recognise women’s the field of land tenure by sup- right to inherit family land. porting civil society organisations, • EurAc calls on the EU and its particularly the Synergy of civil Member States to put pressure society organisations in Burundi, on the Burundian government to in their work on reflection, ensure that, in accordance with advocacy and the development of the Burundian constitution and alternatives for conflict resolution the Arusha Accords, Burundian and land management in Burundi. women are granted their consti- tutional right to inheritance and The work of the European Union in succession. the registration of state-owned lands • EurAc calls on the EU to support appears to have gone unappreciated Burundian civil society initiatives by the Burundian government; at the to raise awareness of the impor- very least, they have not adopted it in tance of women’s access to land. any fashion. Nonetheless, the EU is convinced of the importance of this work and its relevance to the local population.

• EurAc calls on the EU to continue to push the Burundian government to approve its report within the scope of the state land inventory and to take legislative measures to protect this land.

Conflicts over the land owned by refugees and displaced people continue to be one of the main causes of both social and political conflicts in Burundi. The politicisation of the CNTB, which is supposed to resolve these conflicts, does not facilitate their peaceful resolution in accordance with the Arusha Accords. All these problems are compounded by potential conflicts over the land of more than 400,000 Burundians who fled the country as a result of the political conflict that broke out in the country in 2015.

58 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES List of Abbreviations

AFD Agence française de GIZ Deutsche Gesellschaft für développement (French Internationale Zusammenarbeit Development Agency) (German Association for AU African Union International Cooperation) AfDb African Development Bank GRET Groupe de recherche et d’échanges technologiques CAADP Comprehensive Africa (Technological Research and Agriculture Development Exchange Group) Programme IIED International Institute for CACO Comité provincial de consultation Environment and Development sur le foncier (Provincial Committees for Land ILC International Land Coalition Consultations) IMF International Monetary Fund CFS Committee on World Food LIAS Land Information and Security Administration System CNRS Commission nationale pour NASAN Nouvelle alliance du G8 pour la la réhabilitation des sinistrés sécurité alimentaire et la nutrition (National Commission for Victim (New G8 Alliance for Food Rehabilitation) Security and Nutrition) CNTB Commission nationale des NEPAD New Partnership for Africa’s terres et autres biens (National Development Commission on Land and Other NGO Non-Governmental Property) Organisation CONAREF Comité national pour la réforme OGR Opérations groupées de foncière (National Coordination reconnaissance (Grouped Survey for Land Reform) Operations) CRC Commission de reconnaissance PPP Public-Private Partnerships collinaire (Colline Survey Committee) RAB Rwanda Agriculture Board DEVCO European Union Directorate- RPF Rwandan Patriotic Front General for International RRN Réseau ressources naturelles Cooperation and Development (Natural Resources Network) DFID Department for International SDC Swiss Agency for Development Development and Cooperation DRC Democratic Republic of the SFC Service foncier communal Congo (Communal Land Services) EU European Union SIDA Swedish International FAO Food and Agricultural Development Agency Organization of the United UN United Nations Nations UNECA United Nations Economic Commission for Africa

60 LAND, DEVELOPMENT AND CONFLICTS IN THE GREAT LAKES Without international consensus on how land should be governed, the interests of vulnerable land users will continue to be swept aside. Olivier de Schutter UN Special Rapporteur for the right to food (Geneva, 30 October 2011) December 2017

European Network for Central Africa- EurAc Rue Stevin, 115 1000 • Brussels • Belgium Land, development and conflicts www.eurac-network.org Tel: +32-(0)2 725 4770 Email: [email protected] in the Great Lakes Twitter: @EurAc_Net For a renewed engagement by the EU and Switzerland Created in 2003, the European Network for Central Africa (EurAc) has in land governance in Rwanda, Burundi and the Drc 40 member organisations from civil society in 11 European countries. These organisations work on and in the Great Lakes region. They support civil society organisations in Burundi, the Democratic Republic of Congo (DRC) and Rwanda in their efforts to promote peace, the defence of human rights and development.

EurAc concentrates its activities on advocacy towards the European institutions and political decision-makers around 3 central themes for the Great Lakes region: (1) peace and security, (2) democratisation and (3) management of natural resources. Transversely from these fields, the improvement of governance and the strengthening of non-state actors as counter-power are priorities of our advocacy network.

The publication of this report was made possible thanks to the contribution of:

FASTENOPFER ACTION DE CARÊME POUR UN MONDE OÙ CHACUN COMPTE SACRIFICIO QUARESIMALE