Blogs: Missing the Point: The Ineffectiveness of Land Reforms to Resolve Land Issues in Conflict-Affected Burundi: Rosine Tchatchoua-Djomo

 

In post-civil war Burundi, a key goal of land policy has been the reform of statutory and customary land tenure in order to address its long-standing inefficiency to provide acceptable services to local populations and to meet international requirements for post-conflict reconstruction and restoring land ownership for those whose tenure was made insecure through past unwieldy political and legal turmoil. Following the signing of the 2000 Arusha Peace Agreement and the subsequent cease-fire agreements, a large and increasing proportion of refugees who had resettled in neighbouring countries (Tanzania, Uganda, Democratic Republic of Congo) for nearly four decades returned with high hopes of recovering their pre-war family land holdings, housing and property. At the same time, the State encouraged local populations who have resettled on or occupied vacant land plots over the displacement period to share the land with returnees in return of officially recognized proofs of land property.

In this backdrop, two land policies were adopted in the late 2000s: on the one hand, the policy of restitution of land, housing and property to former refugees, and on the other hand, the decentralization policy of land rights registration through the creation of district land certification offices (services fonciers communaux, SFC, in French). While the former aimed at resolving local disputes over access and ownership of the land claimed by returning refugees and redressing past injustices, the latter focused on increasing secure tenure on rural land through the mediation of local land disputes and a simplified land rights registration process. It was expected that these state-led mechanisms would improve tenure security on rural land. Moreover, it was assumed that land certificates would allow rural farmers much access to credit, and therefore render increasing agricultural investments. To what extent these reforms have contributed to the reduction of land disputes in post-war rural communities? Are these effective and durable solutions to secure local property rights in the Burundian context?

Twelve years after the outset of these reforms, none has produced the expected outcomes yet, and the government’s ambitions remain entangled in social and political embroilment. Most people affected by past conflicts live in highly contentious tenure situations, which are exacerbated by acute demographic pressure and growing competition over access to and ownership of land within local communities. Highly significant, yet less recognized in the scholarly literature and policy debate, is a manifest failure of land reform to (re-) assert or revive past entitlements in local and nationwide situations which have undergone drastic changes, as well as to provide durable solutions to land disputes involving returnees. This essay suggests that the logic underlying these reforms are inconsistent with the complex realities of the structures and processes through which rural communities acquire, use and maintain control over land, and how these have been shaped by wider historical, social, economic, institutional and legal processes. Certainly, to understand contemporary dynamics of land tenure in Burundi, one has to look at its history. As argued by Professor Okoth-Ogendo, ‘The perception of what constitutes property at any point in a people’s history is invariably the product of the total milieu in which they live, rather than of any particular aspect of it.

In the precolonial period, Burundi was a monarchy under the rule of a king (the Mwami) and a royal elite. Land relations were embedded in a well structured and differentiated social system. They were articulated along cultural beliefs, class relations and the organization of social labour among a variety of tenure arrangements. Land was held within clans and families and passed on through patrilineal descent. Customary elders, Bashingantahe, were entrusted by the monarch, the royal elite and local populations as custodians of tenure arrangements and judges over land disputes and other social issues. Land allocation, gifts and exchanges were regulated at the community level in public ceremonies and meetings. Starting in 1899 under the German colonial rule and later on from 1916 until 1962, land tenure relations were dramatically redefined, and the Western-legal conceptions property were introduced. Notions of titling and property as restrictive and individual rights were introduced, along with a significant restructuring of social, economic and political relations among Burundian communities. Power relations were redefined under the colonial influence and tactics. Land tenure was codified into three regimes: terres indigènes, terres domaniales, and terres enregistrées. After independence, in the confusion created by intestine conflicts within the royal elites, among emerging political groups, the constitutional monarchy system crumbled. This prompted the rise of authoritarian and military regimes from 1966 until 1993. During that period, Western-legal conceptions of property continued to inform policy making in the country. Colonial land tenure regimes were consolidated through the 1986 land code. Yet, a significant and increasing proportion of civilians could not afford titling or simply resisted the political and elitist hegemony. They preferred to live in land tenure situations parallel to the statutory system, and therefore informal. This facilitated a widespread occupation of the land of refugees and displaced across the country, subsequent to ethno-political conflicts and multiple waves of displacement and return. Most expropriation occurred after 1972, in the eastern and southern provinces bordering Tanzania.

In this backdrop, some national observers pointed out that while the 2011 land law and the decentralized land certification have contributed to enhancing the use of technology in mapping landholdings and empowered district government in land management, the land reform, however, failed to provide practical solutions to the most sensitive and complex displacement-related land disputes. Reducing the contemporary land question to an issue of ownership recognition, restitution and registration do not grasp the complexity and entanglement of previous processes of land grabbing and informal land transfers, agrarian changes, land governance reforms, shifting political regimes, the erasing and fluidity of land boundaries, and the erosion of the authority and legitimacy of customary institutions.

Moreover, the policies rather enhance and crystallize land expropriation in rural areas. Institutions in charge of implementing land restitution have slowed down their activities since 2014–2015 due to significant decrease in their funding, which has left many pending and unsettled land dispute cases. In the meantime, land certification process proceeds on the ground. After 2015, some donors have withdrawn or decreased their financial support to the government. Others, however, have maintained their support to the expansion of SFCs. During the implementation of land certification projects, community members do not receive protection against expropriations from the state and powerful actors holding titles on contested land. The identification, surveying and titling of state land have preeminence over the customary rights of community members. In addition, despite the endorsement of land certification within the 2011 Land Law, the judicial framework only recognizes titling as superior over any other property regime. Of the land held by the family and transferred over generations through patrilineal descent, much of it have been demarcated and recorded under the names of family members headed by a designated representative. However, where family representatives have managed to cover the fees of and withdrawn the certificates, decentralized authorities have failed to provide effective oversight of the subsequent processes through which these representatives may use the certificates to fulfil own or collective interests. Therefore, transfers on registered family held land are unnoticed and the de facto tenure security of family members, especially women and young people, are weak. The ambiguous land question in Burundi is not ready to be solved given the recent wave of forced displacement that surrounded the election of President Pierre Nkurunziza for a 3rd term.[1] With the prospect of the upcoming presidential election in 2020 and possibly new wave of displacement, and considering the proceeding of land certification initiatives on the ground, we might deduce that the land question could get much contentious in the future.

Where to start to design possible, durable and more socially acceptable solutions to this conundrum? In this perspective, I build on Professor Ben Cousins’ pragmatic alternative approach for a fundamental legal reform and full recognition and support for property rights in social tenure systems in order to bring about a most desirable tenure reform in the African context.[1] This however calls for the political willingness and determination of the state to instate and foster the institutional capacities, social and political space required to induce the change and support local initiatives in the longue durée. This does not mean that policy makers should eradicate titling and land certification in Burundi for instance. Rather, as the land certification process included local level institutions, both formal and informal, in the land demarcation process prior to the recording of rights, an incremental shift in widening their scope of action and endorsing their authority in regulating local land affairs may contribute to secure land tenure, which could reinforce the state-citizens relationship.