Sustainable Development Institute / FERN ‘SO WHO OWNS THE FOREST’ An investigation into forest ownership and customary land rights in Liberia by Liz Alden Wily The Sustainable Development Institute (SDI) is working to transform the decision-making processes relative to natural resources and promote equity in the sharing of benefits derived from natural resource exploitation in Liberia. The organization’s vision is a Liberia in which natural resource management is guided by the principles of sustainability and good governance and benefits all Liberians. Its activities cover a range of cross-cutting issues including governance and management, environment, state and corporate social responsibility, economic and social justice for rural populations and the democratic participation of ordinary people in how government manages their natural resources. The organization was founded in 2002 and received the Goldman Environmental Prize for outstanding environmental achievements in Africa in 2006. The Goldman Environmental Prize is the world’s largest prize honoring grassroots environmentalists. The Sustainable Development Institute P. O. Box 5678, 1000 Monrovia 10, Liberia Tel: +231 (0) 77 206702, +231 (0) 77 727596 www.sdiliberia.org FERN works to achieve greater environmental and social justice, focusing on forests and forest peoples’ rights in the policies and practices of the European Union FERN office UK, 1C Fosseway Business Centre, Stratford Road, Moreton in Marsh, GL56 9NQ, UK. FERN office Brussels, 4 Avenue de l’Yser, 1040 Brussels, Belgium. www.fern.org Author: Liz Alden Wily Editor: Kieran Cooke, Ed Fenton, Saskia Ozinga and Richard Wainwright Design: Daan van Beek Print: Zuidam Uithof Photo cover: Tommy Garnett Key words: Liberia, customary land tenure, community domain, forests, forest reform November 2007 About the Author Liz Alden Wily (PhD) is a land tenure specialist with more than 30 years experience in agrarian states. She is an acknowledged expert on customary land tenure and natural resources governance and has contributed significantly to policy and legal reforms in seven countries. Over the last decade she has initiated integrated tenure and natural resource governance projects in Tanzania, Sudan and Afghanistan. She has published extensively on common property issues, especially as relating to forests. Currently she lives in Kenya. For more information: [email protected] Acknowledgements Many people contributed to this study, from those who assisted the author with access to documents to villagers in the field. Although too numerous to list, sincere thanks are given to all. A special note of thanks is due Sam Koffa who led some of the field studies, ably assisted by Zlenyonoh Tarlue, Jonathan Yiah and Trokon Brown and to Lofen Keneah who collected data on land disputes in the courts. Thanks are also due Verlon Stone, who made available rare documents from the Liberia Collection of Indiana University. Others kindly devoted time to comment on a draft of this paper. They are David Brown (Overseas Development Institute), John Bruce (former Senior Counsel, The World Bank), Jeanette Carter (University of Liberia), John Gay (former researcher in Liberia), Cath Long (Rainforest Foundation), Fergus MacKay (Forest Peoples Programme), Saskia Ozinga (FERN) and Silas Kpanan’Ayoung Siakor (Sustainable Development Institute). Others, such as Amos Sawyer (a former President of Liberia and currently head of the Governance Reform Commission) and Clr. Philip A. Z. Banks, III (Minister of Justice and Attorney General), have contributed important insights. To all these people heartfelt thanks are given. While every attempt has been made to take their comments into account, what remains is solely the responsibility of the author. Contents Summary 1 1 Liberia, once a landmark case for best practice and able to be so again 13 So, who owns the forests? 23 Steps towards reform 27 Abstract 39 Glossary 41 Acronyms 5 Introduction 47 1 The study 49 2 Implementation 51 Table 1 – Broad differences among study counties against primary criteria 52 3 Presentation 53 Chapter 1 The context 55 1 Liberia: an overview 57 Box 1 – Timeline of the Liberian State 59 Box 2 – The Liberian civil war, 1989-2005 60 2 Land and territorial relations in early Liberia 62 2.1 The pre-colonial era 63 2.2 The era of the private colonies 65 Box 3 – Preventing direct purchase of native land by immigrants 66 Box 4 – The first sale of native land (‘The Ducor Contract’) 67 Box 5 – Deed for ‘Timbo’ country. Purchased 29th October, 1847 70 Box 6 – Deed for the New Sessters territory. Purchased, November 19, 1847 (extract only) 71 2.3 From colony to commonwealth to independent state 72 Box 7 – The territorial limits of Liberia in 1848 74 2.4 Creating a two-territory dominion 74 2.4.1 Different paths to sovereignty 76 2.4.2 Making the Hinterland Monrovia’s ‘colony’? 77 2.4.3 Establishing the basis for denying that Hinterland populations own their land 78 2.4.4 The pernicious elision of sovereignty with property 80 3 Governing the Hinterland 83 3.1 Adopting indirect rule 84 3.2 Building upon what existed 85 3.3 Whose rules, people or state? 85 3.4 Ending separate development 87 Table 2 – Area, administrative units and population by county 89 Box 8 – Local government in 2007 90 4 Forests 91 Box 9 – Timeline of forest reform in Liberia 92 Table 3 – Surface area classification in Liberia 94 Table 4 – The target forest estate 95 Table 5 – National Forests in Liberia 96 Table 6 – Existing and proposed protected forests in Liberia 97 Table 7 – Proposed community forests in Liberia 97 Chapter 2 Law and the customary right to land 99 1 Customary law (‘community law’) 101 2 Customary land tenure 102 3 The evolution of statutory land law (‘national law’) 105 Box 10 – The evolving national land law of Liberia 106 3.1 Bringing customary law into national law 107 3.2 The ‘immigrant era’: 1821-1895 107 Box 11 – The first land laws of Liberia 1823-1827 108 3.3 The turn of the century ‘The ‘civilised natives’ era – recognising some natives as due property rights 110 Box 12 – Register entries of Aborigines Land Deeds for Grand Cape Mount 111 3.4 The ‘Hinterland era’: 1923-1956 112 Box 13 – Tenure provisions of the ‘Hinterland Law’ 1949 114 Box 14 – Example of Collective Aborigines Deed (1938) 115 Table 8 – Aborigines Land Deeds as submitted to fda in 2007 117 Box 15 – Tribal land in the Aborigines Law 118 3.5 Aborigines Deeds as recognition of indigenous ownership 119 3.6 The ‘appropriation’ era: 1956 until the present 119 Box 16 – The critical tenure change from Hinterland to Aborigines Law 120 3.7 Diminishing native land rights 120 3.8 Shifting ground as to understanding and intentions on native rights 121 3.9 A casualty of unification? 122 3.10 Consolidating the effects 123 3.11 Signing the death-knell of customary ownership 124 3.12 Creating mass land insecurity 125 Box 17 – Example of Public Sale Deed to a community 126 Table 9 – Collective public land sale deeds as submitted to FDA in 2007 128 4 The Land Law in force today 129 4.1 The curious case of the missing law 129 Box 18 – National law in force pertinent to customary lands 130 4.2 The Public Lands Law and Property Law 134 Box 19 – Sections of Public Lands Law pertinent to customary lands 135 Box 20 – Sections of Property Law pertinent to customary lands 136 4.3 The Property Law – unclear and unhelpful for customary owners 139 Box 21 – The procedure for acquiring legal title out of Public/Tribal lands 141 5 The extent of the customary sector 143 Box 22 – Main forms of statutory entitlement (‘legal titles’) 143 5.1 Few deeds, many hectares 145 Table 10 – Summary of deeds submitted to FDA in 2007 145 Table 11 – Known Communal Deeds by county 146 6 Conclusion 147 Chapter 3 Customary land tenure today 149 1 Settlement patterns and change 151 Table 12 – Field villages of the sdI tenure study 151 Table 13 – Relevant characteristics of the five field study counties 152 1.1 Liberia’s towns are small villages 158 Table 14 – Demographic data in the study areas 159 1.2 Settlements are in flux 159 Table 15 – Sample of population disturbance due to civil war 160 Table 16 – Sample extent of satellite homesteading in 2007 161 1.3 Consolidation of community land areas 164 Table 17 – How town (village) boundaries are defined 166 2 The nature of customary ownership 167 2.1 Allodial tenure and communal jurisdiction 167 2.2 Collective ownership 169 2.3 The community domain as indivisible 170 3 The nature of use rights 172 3.1 Houses 172 Table 18 – Means of house acquisition 173 3.2 Farms 174 Table 19 – Means of farm acquistion 175 Table 20 – Nature of farm ownership 176 3.3 Changing land use and tenure norms 177 Table 21 – Tenure data from WFP survey 2006 177 Table 22 – Past and current fallow periods in years 178 3.4 Shortening fallow 178 Table 23 – Number of farm plots in one town in Rivercess County 179 Table 24 – Average farm size in study communities with comparisons from WFP survey 2006 180 3.5 Land shortage: does it really exist? 180 3.6 Labour shortage 182 4 Differences in the strength of access and use rights 185 4.1 Outsiders 185 4.2 Insiders 186 4.3 Women 187 Box 23 – The views of five women as to their tenure security 189 4.4 Youth 190 Box 24 – Provisions of the Customary Marriage Law 2003 191 5 Land conflicts as an indicator of tenure concerns 194 5.1 Land disputes in the study communities 195 5.2 Land disputes reaching the county level 196 Box 25 – Overview findings on land dispute in 37 study towns 198 5.3 Conclusions on