C I V I L - M I L I T A R Y

F U S I O N

C E N T R E

From Dispute to Resolution: Managing Land in Afghanistan

October 2011 Comprehensive Information on Complex Crises

Stefanie Nijssen Governance & Rule of Law Knowledge Manager stefanie.nijssen@cimicweb.org

This report addresses land conflicts and relevant dispute resolution mechanisms which are utilised in Afghanistan. It is based entirely on publicly available sources. Related information is available at www.cimicweb.org. Hyperlinks to source material are highlighted in blue and underlined in the text.

ecades of conflict have significantly eroded Afghanistans land management systems. This fundamental resource is governed by overlapping and sometimes conflicting legal systems, institutions and frameworks. As a result, few Afghans enjoy legally enforceable property rights which are necessary to support the sort of long-term investment in real estate required for Afghanistans economic growth, reports The Washington Post. Conflict over access to land is not uncommon in post-conflict countries, as a report from the Overseas Development Institute (ODI) highlights. The ODI report indicates that [t]he end of a prolonged armed conflict will frequently see a large proportion of the population claiming or reclaiming access to land and land-based resources, with important implications for social and economic development. The problem in Afghanistan, however, is that continued insecurity and conflict in many areas of the country hamper the establishment of capable institutions responsible for adjudicating such disputes. Instead, the United States Institute of Peace (USIP) asserts that land-oriented conflict resolution in Afghanistan is taking place through an ad hoc array of government officials and local leaders as well as through community-based mechanisms. However, the USIP notes that, while sometimes effective in building consensus, such mechanisms have commonly been undermined by corrupt officials, local strongmen and fluctuating levels of insecurity.

Afghanistans Land Conflicts

A 2008 Oxfam Security Survey of 500 people in six provinces of Afghanistan shows that disputes at a local level often have root causes in poverty, and are largely related to resources, particularly land and water [and other issues]. An Asia Foundation report, Afghanistan in 2010: A Survey of the Afghan People, re-asserted Oxfams finding by stating that land was the most common source of disputes for which resolution was sought. Land disputes were particularly common in the Southeast and the Southwest, accounting for 41% and 31% of dispute resolution cases, respectively. Past Afghan governments have adopted differing land policies, a fact which has often resulted in competing claims for the same resource. Megan Bradley, a Canadian government official, asserted in a 2008 paper that powerful actors have capitalised on political change, conflict and uncertainty in recent decades by claiming land that did not previously belong to them. She stresses that land-grabbing has been a particular problem among some militia commanders who took on positions of official authority soon after the fall of the Taliban in 2001 and early 2002.

AFGHANISTAN THEMATIC REPORT

GOVERNANCE & RULE OF LAW

Thematic Report: Land Dispute Resolution in Afghanistan

A 2009 Rural Development Institute (RDI) report on Box 1. Types of Land Conflict womens right to inherit land in South Asia stated that, 1. Conflicts involving the illegal occupation of land by in 2002, 2.2% of the Afghan population owned 19% influential people. of the total land area. This disproportionate 2. Conflicts involving inheritance of private property. distribution of land coupled with unclear land rights 3. Conflicts involving the return of people, such as and ownership arrangements creates conditions in refugees/returnees or internally displaced persons which disputes are easily sparked. RDI further states (IDPs), to land they previously owned. that sharecropping arrangements a system of 4. Conflicts over private property between established agriculture in which a landowner allows a tenant to villagers (not refugees/returnees or IDPs). use the land in return for a share of the crop produced 5. Conflicts involving common property resources on the land have continued to make land tenure managed communally, such as certain pastures, insecure. As the RDI report states, land mortgaging forests and water for irrigation. in particular involve[s] a web of relationships in Source: AREU, 2009. which it is difficult toknow precisely who the legal or accepted right-holder of the property is. USAID reports that the landless cultivate poppy to access land and agricultural credit.1As a result, the income associated with poppy cultivation has also increased the frequency of land disputes. Conflict over land has also emerged as a result of recent demographic and geographical shifts. The International Legal Foundation (ILF) reports that conflicts over land inheritance are most common, and the Afghanistan Research and Evaluation Unit (AREU) notes further that repeated inter-generational division of family lands intensifies this trend. Afghanistans rural population is expanding at a greater rate than the urban populations, thus forcing families to face the long-standing and challenging task of sub-dividing land. A growing population will only increase likelihood of land-based conflict as many people from rural areas will migrate to the urban areas looking for work, housing and services. Such population movements will put continuous pressures on urban land administration.

Afghanistans Land Rights

The lack of an overarching and enforceable legal system has led to greater insecurity of land rights and increased number of land disputes. Land rights are ruled by a number of intersecting legal frameworks (see Annex A), including constitutional law, state law, religious law, civil law and customary law, thus making the regulatory environment exceptionally complex.2 Consider, for instance, the issue of inheritance; although Islamic law (Sharia) grants women the right of inheritance both as daughters and as widows, Pashtunwali (an ethical code of customs and principles adhered to by many Pashtuns) denies it.3 In practice, RDI reports that Afghan women are typically denied their legal rights to inheritance and ownership over land or any other immoveable property by cultural, traditional and societal pressure.4 Similarly, an AREU report entitled Who Owns the Farm: Rural Womens Access to Land and Livestock indicates that while civil law grants women the right to inherit land, few women,

The system by which land is managed has a significant influence on the agricultural sector and, according to Liz Alden Wilys article Governance and Land Relations: A Review of Decentralisation of Land Administration and Management in Africa. The need to help rural populations secure their tenure by making it more freely available to investors has spurred changes in land administration and tenure norms in other post-conflict countries such as Mozambique. 2 See CFC Report The Informal Justice System in Afghanistan. 3 Saud Joseph and Afsaneh Najmabadi. Encyclopaedia of Women & Islamic Cultures: Family, law, and politics, 2005. 4 The AREU report states that while daughters are legally entitled to half their brothers share of the parental property, under Sharia law, in practice daughters rarely receive or accept their share of land.

October 2011

Page 2

Thematic Report: Land Dispute Resolution in Afghanistan

especially daughters, inherit it in practice.5 An article in The Economist also indicated that ethnic groups, such as the Kuchi, have challenged the establishment of formal systems of ownership given that doing so may pose complications for their traditionally nomadic way of life.

Box 2. Land Conflict in the Northern Provinces

In Kunduz province, land conflicts made up half of all recorded conflicts in in 2008. With a provincial population comprised of Tajiks, Uzbeks, Arabs, Aimaq and Pashtuns, land conflicts in Kunduz take place within a context where many groups compete for involvement in local governance structures, states a Cooperation for Peace and Unity (CPAU) report from 2009. Certain political stakeholders position themselves as protectors of ethnic minorities interests vis--vis the predominantly Pashtun Taliban, a fact which experts believe may contribute to relatively intense land conflicts. Such conflicts, however, continually test the capacity of local law enforcement entities. For example, Pajhwok Afghan News reported in October 2011 that various warlords had seized dozens of acres of land in the northern province of Baghlan and were forcing municipal officials to turn over land ownership records. A police investigation was underway, though the municipal staff had yet to lodge a formal complaint.

Formal Mechanisms for Dispute Resolution The growth of rural populations combined with higher poverty levels in rural areas led the authors of the Afghanistan National Development Strategy (ANDS) to give the agricultural sector, which includes land issues, priority status. The Civil Code of Afghanistan is the formal framework used by government entities used to preempt land conflicts. As a written expression of the countrys Sharia-based law, the Civil Code includes more than 1,000 directives relating to property. Under the 2004 Afghan Constitution, land issues are the responsibility of central and provincial governments (though Box 3. Property Dispute in Civil Court womens land rights are governed by personal laws), reports RDI. The most significant land1. Complainant submits an official one-page request form related legislation, the 2008 Afghan Land to the Law Department of the Ministry of Justice (MoJ) Management Law, disregards all private 2. The MoJ will contact the local police department, who ownership claims that are not backed by registered then contacts the defendant in the action. During this deeds, and all land not proved to be private is phase of the process, the MoJ may also gather deemed to be state land, according to United States additional information about the case. Agency for International Development (USAID).6 3. The MoJ and the police will often attempt to settle the Because most land is subject to unregistered deeds dispute through mediation or by encouraging the parties to settle the dispute through informal or agreements, the law may permit the taking of mechanisms. privately owned land or land held in customary 4. If the dispute cannot be settled through mediation or if tenure without compensation, according to the parties choose not to use informal mechanisms, the USAID.7 Confusion also arises when integrating case is referred to court. In the case of property national and customary laws; the 2008 law, for disputes, this will likely be the city, municipal, district, instance, provides that pasture land is public or sub district court. property which the state nor any individual can Source: ALEP, 2009 possess. Yet individuals and communities can
5

USIP claims that though inheritance questions are solved according to Sharia, the conflicts between heirs will often be decided based on the amount of time the person has used/worked the land. 6 According to USAID, many landowners hold customary land deeds which have not been properly surveyed and often lack property descriptions. 7 USAID says, [a]necdotal evidence suggests the Afghan government may claim as much as 90 percent of Afghan land, mostly in rural areas.

October 2011

Page 3

Thematic Report: Land Dispute Resolution in Afghanistan

obtain exclusive rights of access to government-owned pasture land through customary deeds. The administration of Afghan President Hamid Karzai created the Afghanistan Land Authority (ALA) in 2010 to improve access to governmental lands for commercial activities. The ALA is tasked with the leasing of government landholdings and with recommending any changes in Afghan laws related to real estate. However, the ALAs website only refers to government-held land and makes no specific reference to private property or land.8 The Norwegian Refugee Council (NRC) reported in 2011 that the Land Management Office of the ALA does not have updated registers of land ownership, making it very difficult for returning refugees to claim deeds to land. In fact, a 2011 ISAF briefing states that, if no records of ownership exist, a Presidential Decree must be signed to convene a Land Clearance Team to determine ownership. Land cases are officially dealt with in civil courts, which interpret a combination of state, civil and religious law.9 Stanford Universitys Afghanistan Legal Education Project (ALEP) reported that the Afghan government established a Special Land Disputes Court. However, because the court focuses narrowly on the problem of refugees returning from abroad, many people who seek to resolve land disputes are not able to take advantage of this court. Furthermore, the court does not have staffed branches in different parts of the country and in 2009 was only comprised of ten judges. When authorities do issue decisions, these are often not enforced, as the capacity of the police services remains limited and is primarily dedicated to physical security and counter-insurgency concerns, reports the aforementioned report by Bradley. Informal Mechanisms for Dispute Resolution While the Constitution is silent on the authority of Figure 1. Mechanism approached for land dispute customary law it prohibits adoption of laws that are Shura/Jirga inconsistent with the tenets of Islam, and the Civil Code recognises the application of customary law ANP with regard to land rights. Customary rules, though Malik/Khan rarely codified, are the norm in many parts of Afghanistan. A USAID document notes that this is in Provincial authority part because the insurgency is using land grievances CDC to exploit people's long-standing dissatisfaction with District authority their government. Concerns regarding the efficacy, accountability and transparency of the courts and land Mullah registration offices have led many Afghans to draw upon a wide variety of alternative social and governmental institutions (see Fig. 1) in order to Source: Adapted from information in the Asia Foundations manage land. Customary tenure systems, rooted in Afghanistan in 2010: A Survey of the Afghan people. Sharia law and Pashtunwali, are accessible and often render decisions quickly. When land is sold, for instance, Pashtunwali dictates that neighbours have the right of first refusal, after which others may purchase the land. According to a report, The Customary Laws of Afghanistan, by the ILF, unless the owner of land can prove that he or she owns it, the person in actual possession of the land the person using the land is deemed to own it. The ILF states that before a dispute is resolved, one party may ask the other whether he wants to settle the conflict Shariat-wise (in a Shura or a Jirga, which are consultative councils dedicated to resolving disputes or social issues).10 While customary systems vary across Afghanistan, it is generally understood that those who refuse

8 9

The ALA certifies land ownership, when combined with a court order. State law includes the civil code, statutory law and constitutional law. 10 The difference between a Jirga and a Shura is that members of a Shura are elected or selected for longer periods but members of a

October 2011

Page 4

Thematic Report: Land Dispute Resolution in Afghanistan

the application of customary law will be looked down upon by their families and communities. Thus, many disputants have little option to refuse the use of a traditional system. When adjudicating disputes, Shuras may order those accused of any crime to make compensation payments to victim families in the form of land; in turn, this may potentially generate further disputes.

Preventing Disputes through Improved Land Management

USAID reported in 2010 that 85% of all property transactions are informal and 70% of all urban real estate is unregistered, with estimates for agricultural land estimated to be even higher. Finding ways to reconcile formal and informal dispute resolution mechanisms has thus been a key goal of many donors and external actors. USIPs Traditional Dispute Resolution project, for instance, is said to be analysing and encouraging linkages between the formal and informal justice sectors in thirteen districts in Helmand, Nimroz, Uruzgan, Herat, Paktiya, Nangarhar, Kunduz, and Takhar provinces. From 2004 to 2009, USAID also worked to formalise land holdings, in the Land Titling and Economic Restructuring in Afghanistan (LTERA) project by which it reorganised 6.5 million documents in 21 provinces and streamlined property registration from 34 steps to three, reports The Washington Post.
Archives in Kabul prior to renovation under the LTERA project.
Source: USAID, 2009.

A 2006 report entitled by the Terrain Institute also stressed the need to educate the public not only on ownership but also on respective taxes involved, how to utilise specific land types, how individuals can get the rights to use land and what people in conflict over uses or ownership of the land should do to resolve their conflicts. Given the need to better educate Afghans on land rights issues as well as on related issues such as taxation the LTERA project created a media campaign to increase awareness of formalisation procedures. For instance, this project helped create a one-minute TV commercial detailing the reduction in fees of property transfer. LTERA also launched a computerised registry of over 700,000 digitised deeds (see Annex B).11 However, according to a handbook published by several UN agencies and the NRC, the process of constructing or reconstructing official records can be abused by corrupt officials and can equally be used as a motivation to economically or politically strong groups to illegally grab land belonging to displaced persons and registering it as their own.12 In 2009, USAIDs LTERA project worked to improve land security in informal settlements by engaging community mechanisms to survey document, arbitrate and record property claims; this resulted in a plethora of data which needed to be stored, edited, updated and visualised. While the LTERA project helped two million informal settlers in Kabul and the northern cities of Mazar-e Sharif, Kunduz and Taloqan gain formal ownership of their land, USAID noted that many areas that still require attention for the development of a vibrant land market.

Jirga can be changed for every issue. When a dispute needs to be resolved, Jirga men gather in a common gathering place where they have equal rights regardless of their social position. Speakers begin by sharing short stories and proverbs before they freely discuss and evaluate the issues. If six or more Jirga men are asked to mediate a dispute between persons, villages, or tribes, half will be drawn from one side and half from the other. At the beginning of the session, cash or property, known as Machilgha or Baramta, with a value equivalent to the case, is collected from the parties and given to a third party for safekeeping. 11 The Afghan Land Consulting Organisation (ALCO) reports that there are several types of evidence when rights are being transferred and that a deed is not legal proof of ownership. 12 In a report entitled Governance and Representation in the Afghan Urban Transition, the AREU stresses the need to focus on land tenure security, particularly in informal urban settlements. 12 The Afghan Land Consulting Organisation (ALCO), a non-governmental group specialised in community-based land management, often steps in to provide legal and technical counsel to citizens defending property claims before Afghan courts.

October 2011

Page 5

Thematic Report: Land Dispute Resolution in Afghanistan

As a result USAID announced the three-year Land Reform in Afghanistan (LARA) project in June 2011. With USD 41.8 million in resources, LARA will seek to pave the way for business growth and job creation. The project will formalise land dispute resolution legislation, build community capacity to resolve land disputes, increase property title security, automate land record administration and, finally, strengthen Afghan capacity to design, manage and implement needed land tenure reform. It is not clear, however, to what extent state-centric approaches will be able to overcome conflicts which many Afghans prefer to handle informally, particularly given concerns about corruption and ineffectiveness within Afghan public institutions. In 2010 Afghanistan was ranked 167 out of 182 on ease of registering property in the World Banks annual Doing Business survey. In 2011 Afghanistans ranking dropped to 170 out of 183 and the 2012 survey has Afghanistan ranked at an even lower 172 out 183.

Conclusions
Despite the complex nature of the Afghan judiciary, customary law dominates in Afghanistan, especially in the areas of land disputes. According to an ODI paper on Land Tenure in Conflict and Post-Conflict Situations, most strategies utilised by humanitarian actors in land tenure matters tend to be superficial and ad hoc; specifically, these strategies are designed around returning land to pre-war owners and fail to recognise and address the very volatile tenure issues which develop during conflict. Furthermore, government capacity remains limited, and village councils remain active in land administration by following customary rules that are often inconsistent with national law and policy. However, the Afghan government, in consortium with the international community, has made significant steps towards managing and formalising ownership of land areas, which will hopefully act as a resource for future dispute resolution decision-makers, be they based on community or government-run dispute resolution mechanisms.

The Civil-Military Fusion Centre (CFC) is an information and knowledge management organisation focused on improving civilmilitary interaction, facilitating information sharing and enhancing situational awareness through the CimicWeb portal and our weekly and monthly publications. CFC products are based upon and link to open-source information from a wide variety of organisations, research centres and media sources. However, the CFC does not endorse and cannot necessarily guarantee the accuracy or objectivity of these sources. CFC publications are independently produced by Knowledge Managers and do not reflect NATO or ISAF policies or positions of any other organisation.

October 2011

Page 6

Thematic Report: Land Dispute Resolution in Afghanistan

Annex A. Afghanistans Legal Frameworks for Land Management

International Agreements The Afghanistan Compact (2006) The Compact indicated that land registration processes would start in all administrative units. Also states that a fair system for settlement of land disputes will be in place by end-2007. Details are not provided on what fair entails. The target date has passed without major progress. The Communiqu only refers to the restructuring [of] public enterprises in order to ensure greater accountability and efficiency. States the need for strengthening state policies and judicial capabilities to facilitate the return of illegally seized lands. National Laws and Decrees Law on Land Management Affairs (2000) A law revised by the Taliban. It detailed which documents could be used as proof of ownership. Approved by the Afghan Transitional Authority, Article 5 states that all moveable and immovable property shall be returned to its rightful owner, as determined by the relevant legal organs. Established legal framework for property rights that safeguard rights of individuals to own property. Addressed bottlenecks in land rights administration and the overlapping authority of institutions. Lays out principles of land classification and documentation, governs settlement of land-rights and encourages commercial investment in stateowned agricultural land with opportunities for long leases. Supports the rights of all Afghans to return to their homes, repossess property and enjoy all constitutional and human rights. However, details are not provided on how these rights are to be upheld, and how competing rights will be navigated.

The London Conference Communiqu (2010)

The Kabul Conference Communiqu (2010)

Decree on Dignified Return (2001)

The Afghan Constitution (2004)

Afghanistan Land Policy (2007)

Afghanistan Law on Managing Land Affairs (2008)

Afghan National Development Strategy (2008)

October 2011

Page 7

Thematic Report: Land Dispute Resolution in Afghanistan

Annex B. Land Deed Archival by the USAID LTERA Programme

Most deeds, which are documents that verify and transfer ownership of real estate, were damaged or destroyed during two decades of conflict. The USAID-funded Land Titling and Economic Restructuring in Afghanistan (LTERA) programme began refurbishing the Makhzans (provincial court registries) in 2004. By 29 September 2009, reorganisation teams had restored and reorganised approximately 1,077,000 deeds.
Note: Legal Deeds are registered with the government whereas Customary Deeds are issued by local communities.

Province

Deed Restoration

Deed Computerisation
32,600 78,400 16,800 36,193 171,505 5,000 58,700

Town Planning

Deed Formalisation
3,000 53,000 300 1,800 -

For Holders of Legal Deeds

Badakhshan Baghlan Balkh Faryab Ghazni Herat Kabul Kapisa Khost* Laghman** Logar Nangarhar Nuristan** Paktya Paktika* Panjshir Parwan Takhar Jowzjan Sar-e Pul Kunduz Samangan 12,800 3,300 74,900 35,600 12,000 58,700 30,200 12,800 2,500 56,900 25,600 16,300 32,600 108,700 41,600 44,800 58,800 290,000 17,400 17,900 101,900

For Holders of Customary Deeds

10,000 90,000 3,000 3,000 -

* Property deeds for Khost and Paktika are registered in the Paktia court ** Property deeds for Laghman and Nuristan are registered in the Nangarhar court Source: Emerging Markets Group/USAID, 2009.

October 2011

Page 8