Moreover, the FTLRP unleashed the land restitution demands/claims made by several chiefs based on historical land dispossession that had taken place during the colonisation process (Fontein 2009; Dande and Mujere 2019). The demands for the restitution of land dispossessed during colonisation by traditional leaders existed even prior to Zimbabwe's independence. However, the ZANU–PF government never met these demands in the 1980s and the 1990s, when it resettled people on farms that it had bought with financial assistance from Britain (Chamunogwa 2019, 74). Unlike South Africa, Zimbabwe's land redistribution programme did not have an element of land restitution. This implicit rule in the Zimbabwean land redistribution policy was broken during the FTLRP, as some chiefs led people to occupy specific farms that had historically belonged to their tribes but were subsequently lost to white settlers during the colonial period, and their occupations were formalised through the A1 resettlement process (Chimhowu and Woodhouse 2008, 296–297; Fontein 2009). It has also been reported that disputes over traditional boundaries have emerged in certain areas due to the FTLRP, as different chiefs decided to resettle their people on the same A1 resettlement farm (Mkodzongi 2016; Dande and Mujere 2019).

Thus, several studies emphasise the significant roles played by traditional leaders during the *jambanja* period and the subsequent FTLRP, highlighting the personal and tribal intentions governing their acts (Chimhowu and Woodhouse 2008, 296– 297; Fontein 2009; Mkodzongi 2016; Dande and Mujere 2019; Chamunogwa 2019). Nevertheless, the extent to which traditional leaders had complete autonomy in their actions is disputed. Alexander (2018, 151) argues that during the FTLRP, traditional leaders were 'influential only insofar as they subordinated themselves to the ZANU–PF's partisan project' on resettlement farms. Despite the FTLRP's unprecedented achievements with respect to responding to the popular demand for land and dismantling the colonial land ownership structure, Gideon (2019, 21) is also adamant that it was the ZANU–PF's 'exclusive partisan programme' and not the 'non-partisan national initiative' that it claimed to be. He states that the 'ZANU–PF structures mutated with land committees and local community leadership at every level' in the implementation of the FTLRP.

While the FTLRP enabled black people to resettle in formerly white farms, some communal areas experienced an influx of people from urban areas and white farms throughout the 1990s and the early 2000s. This increased the scarcity of land in communal areas and prompted informal land transactions that were prohibited by the law (Chimhowu and Woodhouse 2008, 2010; Goodwin 2013). 'Private' transactions of land in communal areas were already reported in the 1980s (Cousins et al. 1992, 17–18), and these practices seem to have become more common since then. Chimhowu and Woodhouse (2008, 2010) discussed the development of two forms of commodification of land in the Svosve communal lands in Marondera district in Mashonaland East province in the mid-2000s. One was the sale of grazing land by *sabhukus* to newcomers who sought residential and agricultural lands. The other was the leasing out of agricultural lands by absentee residents who lived in the cities, resettlement farms, or overseas as diaspora, and their relatives. However, in both the 1980s and the 2000s, these land transactions were mediated by customary authorities and therefore did not necessarily undermine the customary land tenure system. In the context of the lack of security of these informal land transactions, Goodwin (2013) illustrated how land purchasers tried to strengthen their land rights by creating and reinforcing their connection with the land through traditional ceremonies and practices.

### *3.2 Namibia*

Namibia obtained independence from South Africa in 1990. The scope of Namibia's land reform policy was discussed at the National Land Conference that was held in Windhoek in 1991, in which 700 people participated (Adam and Knight 2012, 36). Although Namibia also experienced a much higher degree of land dispossession in comparison to other African countries, the extent of dispossession in Namibia was still the least among the three former settler colonies in southern Africa.

Namibia's colonial land dispossession had unique geographical and ethnic dimensions. The colonial land dispossession in Namibia took place through the German conquest in the late nineteenth century in the middle and southern parts of the country, where the Herero and Nama ethnic groups lived. The German colonial authority named the conquered areas the 'police zone', and this area was maintained exclusively for white settlements even after the First World War, when Namibia (known as South West Africa at that time) became a British protectorate administered by South Africa. The Herero and Nama people paid a huge price in both their blood and lands during the German conquest and subsequently relocated to native reserves that were established outside the 'police zone'. In contrast, the northern part of the country, where the majority of rural inhabitants lived, was never invaded by colonial settlers. It was set aside as native reserves (later Bantustans) for different ethnic groups, and traditional authorities that were appointed by the colonial government maintained a degree of autonomy in administering them (Werner 1993; Lankhorst 2009, 198– 199; Amoo and Harring 2012, 223–226). Approximately 40% of the people lived in one of these reserves, which was known as the Owamboland. Its residents (the Owambo people) became the political foundation of Namibia's liberation movement—the South West Africa People's Organisation (SWAPO)—which later turned into the ruling party.

Reflecting these historical specificities, discussions at the National Land Conference in Namibia were dominated by issues related to land tenure reform in communal areas (former Bantustans), rather than the question of how to redistribute whiteowned farms to black people. Half of the recommendations from the conference concerned land issues in communal areas, such as the need to guarantee land to local people, the abolition of land allocation fees, the recognition of land rights for women, the establishment of effective land administration, the prohibition of the 'illegal' fencing of grazing lands, and the encouragement for moving livestock belonging to wealthy farmers to commercial farms. These recommendations were fed into the policy document of the National Land Policy White Paper in 1997 (Adam and Knight 2012, 36).

It took an additional five years before the legislation on land tenure reform in the communal areas was formulated. The Communal Land Reform Act (2002) stipulated that, in accordance with the Constitution, the ownership of rural land in communal areas is vested in the state. The Act also created two different forms of land tenure for the residents of communal areas. One was the customary land right, whereas the other was the 99-year leasehold right. The Act prescribed the establishment of communal land boards as the entity that would administer these land rights. Every individual or family seeking the recognition of their customary land rights must submit an application to a local communal land board that will handle the registration of their customary land rights. Simultaneously, the Act recognised the limited role of traditional authorities in communal land administration. Thus, chiefs have maintained the power to allocate communal land to individuals/families, but their decisions have to be approved by the local communal land boards that will handle the registration process. In this sense, the communal land boards were tasked with supervising the land allocation conducted by chiefs. The Act further recognised that the traditional authorities have the power to regulate grazing access to commonage within their local communities (Lankhorst 2009, 199–201).

Thus, one can say that Namibia introduced a hybrid system for the administration of land in communal areas. In this system, the traditional authorities were expected to work in conjunction with the newly created state entity—the communal land boards. However, who would constitute the traditional authority in this hybrid system became one of the contentions surrounding land administration in communal areas. Prior to the Communal Land Reform Act (2002), the Namibian government enacted the Traditional Authorities Act (2000), which recognised traditional authorities and the traditional communities that they represented. When the traditional leadership of six San communities applied for recognition as a traditional authority under the Traditional Authorities Act (2000), the Namibian government at first turned down all the applications. Later, it recognised the traditional leadership of two San communities that lived in Bushmanland (one of the former Bantustans in the northeast of the country). They are the !Kung and Ju|'hoansi communities, who comprise only 15% of the total San population in Namibia.2 Since they do not have any land of their

2 There are 17 San distinct groupings in Namibia. The San people are an indigenous hunter-gatherer group who have resided in southern African region. Being a small minority with a less centralised

own, most San communities whose applications for the recognition of their traditional leadership were rejected by the government continue to live on the land under the authority of the Owambo and Kavango people or on white farms as farmworkers. Since their traditional leadership was not recognised by the government, they are not consulted on matters related to the land they occupy (Lankhorst 2009, 207).

The other highly contentious issue surrounding land administration in Namibia's communal areas is the encroachment of commonage through illegal fencing by wealthy or politically well-connected individuals. This problem of privatisation of commonage through illegal fencing has been exacerbated, particularly since independence, as an increasing number of wealthy black farmers who accumulated wealth in urban economies began to invest in commercial farming in communal areas (Lankhorst 2009, 209–210). According to Gargallo (2020, 134–135), more than 1000 fences were set up in communal areas during the first ten years of the twenty-first century. These amounted to three million ha of fenced ranches. In addition, while 46.4% of Kavangoland's total land area was used as a communal grazing area, 30% of it was occupied by commercial ranches. This process was facilitated by the traditional authorities' inability to regulate grazing access to the commonage under their jurisdiction and by the co-optation of traditional authorities by wealthy or politically well-connected farmers. Fencing a part of commonage, especially the most valuable part of the water holes, has reduced people's access to grazing land and water sources. Consequently, it prompted the movement of these excluded people to the commonage of neighbouring communities, which resulted in land conflicts between neighbouring communities (Lankhorst 2009, 209–210).

### *3.3 South Africa*

South Africa was the last country among the three discussed here to obtain independence from racial domination. Like Namibia, it held the National Land Conference in which representatives from various corners of the society came to discuss the future direction of land reform policy. The conference was held in 1993, just prior to the country's first democratic elections (National Land Committee 1994). In addition, there were other stakeholder conferences on the future of land reform, such as the one funded by the World Bank, that had some influence on the final land reform policy proposed in the White Paper on Land Policy (hereinafter: the White Paper) published in 1997 (Williams 1996). South Africa's land reform policy was unique, as

political system, the San have historically been the most marginalised people in Namibia. Most of their traditional hunting grounds were seized by white settlers and were converted into commercial farms. The creation of Bushmanland as their homeland occurred much later than homelands for Bantu-speaking people, and most of the San never came to live on this land. As a result, even after independence, most San communities lived on white farms as farmworkers and on former homelands designated for Bantu-speaking ethnic groups in the north-eastern region of Namibia (Lankhorst 2009, 206–208).

it contained not only a land redistribution programme that aimed to distribute whiteowned farms to black people to redress the racial inequality of land ownership, but also the land restitution programme that aimed to return land to those who had been dispossessed of it by racially discriminatory laws and practices after the Natives Land Act (1913). The White Paper also proposed a land tenure reform programme to consolidate the land rights of residents of the former homelands (also known as Bantustans) and the tenants and dwellers on white-owned farms.

The White Paper identified two problems with the former homelands' land tenure system. One was that residents' rights to the land were not officially recognised, which placed them in a vulnerable state. The other was that the land administration system in the former homelands was in a state of disarray and its tendency to discriminate against women was incompatible with the democratic principles enshrined in the Constitution (DLA 1997, 30–34). As an interim measure, the Interim Protection of Informal Land Rights Act (1996) was enacted to protect the vested interests (land rights) of people who did not have explicit legal rights to the land that they occupied, such as residents of the former homelands. The Act also stipulated that people with informal rights to the land must be treated as stakeholders when such land is subject to development projects and business transactions (DLA 1997, 62). Following the White Paper, the Land Rights Bill was discussed within the Department of Land Affairs, but it was never introduced to Parliament. While South Africa embarked on the land redistribution and land restitution components of its land reform policy soon after its democratisation, it took ten years for the legislation to enforce land tenure reform. Moreover, the Communal Land Rights Act (2004, hereinafter: CLaRA) was never fully implemented after the Constitutional Court declared it unconstitutional in 2010.

Although the CLaRA was struck down due to procedural reasons, the legal challenge posed to the CLaRA revealed the fundamental contentions surrounding land tenure reform in South Africa. The CLaRA aimed to recognise the various forms of existing land rights—formal and informal, registered or unregistered—of the people residing in communal lands, that is, the former homelands of South Africa. The CLaRA had three principal provisions. First, it proposed two forms of land rights. One was the community/group land rights that were bestowed upon the community and registered under the name of the community. The other was the right to a piece of land within the communal land that was given to individual members of the community and registered under the name of the individual residents. Both land rights could be converted into freehold ownership. Second, it proposed that the community/group land rights were to be administered by a land management committee that had to be established within the community. It also stated that if there is a traditional council within the community, such councils may exercise the authority and obligations of the land management committee. Third, it stipulated the establishment of the Land Rights Board, which was the government agency that would oversee the administration of land by the land management committees (Sato 2018a).

The traditional council is a council established within local municipalities by the Traditional Leadership and Governance Framework Act (2003, hereinafter: TLGFA), which gave traditional leaders a wide range of roles that covered agriculture, health, the administration of justice, safety and security, environment, tourism, and so forth. Its predecessor was the tribal authority that was established by the Bantu Authorities Act (1951) of the apartheid era (Cousins 2008, 13). The TLGFA aimed to reform the traditional leaders' administration system by introducing the principles of gender equality and democracy (Williams 2009).3 However, not everyone agreed on making the traditional council a land administration committee. Thus, it was the second provision of the CLaRA that led to the legal challenge by those who objected to the traditional council's appropriation of the responsibility of the land administration committee. With the support of land NGOs and activists, four rural communities submitted a legal challenge to the CLaRA in 2006—presenting two oppositional arguments. First, they argued that the CLaRA would weaken people's existing land rights, because whenever a traditional council existed, such councils would become land management committees, which was problematic. Moreover, the CLaRA did not recognise the relative autonomy of communities within the boundaries of traditional councils. Second, they argued that there was a procedural error in the legislation process (Cousins 2008; Murray and Stacey 2008).

Although the CLaRA was found to be unconstitutional due to procedural reasons, the question of how to define the boundaries of the collective/communal land ownership that was raised by this legal case is arguably fundamentally important for reforming the customary land tenure system—where the right to land has been given based on one's membership in the community. If the traditional council were to become the land administration committee, the owner of the communal land would be synonymous with 'tribe'. The four rural communities that challenged the CLaRA claimed that smaller communities within the 'tribe' had relative autonomy (Claassens and Gilfillan 2008; North Gauteng High Court 2009). There are no population statistics for each tribe in South Africa, but Claassens (2008, 265) estimated that each tribe/community would consist of approximately 10,000 to 20,000 people. My rough estimate presented a figure of 18,000 persons per chief,4 which is almost identical to Claassens's estimate. The size of each tribe differs, but the practicality of establishing a committee that represents more than 10,000 people to administer collectively owned land should be examined regardless.

The legal challenge to the CLaRA also raised the question of whether traditional leaders should have the authority to administer land in the first place. Unlike other African countries, South Africa's former homelands are not the main targets of agricultural foreign direct investment (FDI) by foreign companies. Therefore, the so-called land grabs have not been a major issue yet. However, in areas where mining occurs in the North West Province, it has been reported that traditional leaders

3 The TLGFA stipulated that a third of the councillors should be female and that 40% of councillors should be democratically elected members of a 'traditional community'. The remaining 60% consists of 'members of the traditional community' who are chosen by traditional leaders.

4 According to the FFC (2016), as of early 2016, there were 13 kings and paramount chiefs, 829 chiefs, and 7399 headmen/women in South Africa. The author divided the population of the former homelands (about 15 million) by the number of chiefs (830). Since there are 7400 headmen nationwide, the population per headman is over 2000.

have allowed mining companies to exploit mineral resources without consulting the locals and have monopolised the royalties obtained from the companies (Mnwana 2014). The Bafokeng people in the North West Province are the wealthiest tribe in South Africa due to their income from mines. However, the benefits accrued from such mining activity are not widely distributed among the locals. There is also a conflict among residents regarding the beneficiaries of such mining activity. Should the Bafokeng be the sole beneficiaries? Or should the non-Mfokeng, who live on the Bafokeng land, be included as well? (Comaroff and Comaroff 2009).

### **4 Traditional Leadership and Rural Land Governance**

A brief review of land tenure reform policies of Zimbabwe, Namibia, and South Africa illustrates the striking similarities in the policies that they have adopted and introduced after independence. All three countries introduced legislation to identify and regulate the powers and authorities of traditional leaders. This indicates that the power and authority of traditional leaders are sanctioned by the central government, and statutory recognition is one of the sources of power and legitimacy for traditional leaders (Buthelezi and Skosana 2018). It also signifies that even if traditional leaders have the support of their own people, they may not be able to exercise certain powers unless they are recognised by the central government. This was demonstrated by the San traditional leadership case in Namibia. All three countries also introduced or amended the legislation concerning land in communal areas that gave traditional leaders the power to regulate the access to land in these areas. In the final section of this chapter, I will turn to some of the questions regarding the role of traditional leaders in rural land governance in these three countries—paying particular attention to their sources of power and legitimacy and their possible competitors.

### *4.1 Popularity of Traditional Leadership: Resurgence, Tenacity, Reinvention*

When we talk about the popularity of traditional leadership in Africa from the end of the twentieth century to the early twenty-first century, one strand of literature emphasises its 'resurgence' or 'revival' due to the international political and economic climate of the 1990s. For instance, Oomen (2005), using South Africa as a case study, argued that when the democratisation of South Africa and the restoration of traditional leaders occurred during the 1990s, the importance of preserving and restoring cultural rights was emphasised through the rise of indigenous rights movements globally. In these international arenas, traditional leaders were seen as the embodiment of traditional culture, customs, and languages that were rapidly disappearing due to the wave of modernisation (Oomen 2005, 3–13). Comaroff and Comaroff (2018, 7) also pointed out the influence of neo-liberal policies, notably the decentralisation 'of the state and the outsourcing of many of its functions' or bypassing of its authorities by donors and corporations, on the resurgence of chiefship in several African countries.

This 'resurgent' aspect of traditional leadership is probably felt most strongly in South Africa, because well-developed scholarship has vehemently argued that there is no place for traditional leadership in a democratic South Africa. Perhaps the most well-known case was put forward by Mamdani (1996), who argued that the traditional leaders lost popular support due to the 'despotic' roles that they played during the apartheid regime and therefore had no place in a democratic South Africa. Ntsebeza (2005) also argued that traditional authority is incompatible with the democratic system, as the former relies on the hereditary system for choosing leaders. Another criticism came from civil society organisations, especially women's organisations, which indicated that women's rights were not sufficiently recognised under customary law (Amtaika 1996). Despite these criticisms, the South African Constitution (1996) recognised the traditional leaders and the TLGFA (2003) gave them a wide range of roles, which included rural land administration.

On the other hand, another strand of literature views the popularity of traditional leadership since independence as a result of the 'tenacity' of the institution, which has survived several shifts in political power from the colonial to the post-colonial period. There are at least two elements that explain the tenacity of traditional leadership. The first element applies to many other African countries as well, while the second is probably unique to or at least more prominent in the southern African region due to its colonial political economy. The former is the flexibility, versatility, or adoptability of African traditional leadership, which was articulated by Alexander (2018), who referred to Zimbabwe as her case study:

The 'return' of chiefs is a mirage, seemingly always sitting on the horizon. In fact, they never left. But their durability is not to do with staying the same: they have been as changeable and contradictory as state institutions themselves, always bound by the state's shifting demands and always rooted in versions of custom but never wholly defined by either of them. (Alexander 2018, 154)

In a similar vein, researchers also discuss the flexible nature of the 'customs', 'customary law', and 'customary' land tenure systems that are usually associated with traditional leadership. Distinguished from 'official' customary law, such as codified statutory laws during the colonial period and/or anthropologists' writings in the nineteenth and early twentieth centuries, several researchers advocated for the necessity of understanding the practices and norms that govern people's daily lives, which they termed as the 'living' customary law (Bennett 2004, 2008, 2009). The 'living' customary law is characterised by its flexibility and constant minor changes (Oomen 2005, 78). Thus, it is hard to grasp and even harder to incorporate into formal policy (Delius 2020). Cousins et al. (2011) argued that policymakers are hardly aware of the existence of the 'living' customary law. Consequently, they tend to rely on the customary laws of past times, which causes significant problems in the formulation of land tenure reform policies. Advocates of the 'living' customary law testify to the ever-changing nature of tradition and traditional leadership in Africa.

The more southern Africa-specific source of tenacity of traditional leadership is concerned with the importance of the customary land tenure system for migrant workers and migrant sending societies. As often discussed in the classification of colonial rules in different parts of Africa, southern Africa was developed as labour reserves for settler-led economic development in the form of mines and commercial farms. In this colonial political economy model, African labourers in the mines, farms, and cities were considered temporary sojourners or migrants and were supposed to return to rural reserves once they retired or were no longer useful as a workforce. Native reserves were supposed to accommodate, nurture, and look after the people who were too young, old, sick, or frail to work in mines, farms, or cities (Wolpe 1972). In this context, a customary land tenure system controlled by traditional leadership served as a social safety net for migrants and migrant households by allowing them to retain their rights to the land in native reserves. As much as remittances were important for the daily survival of households in native reserves, remittance-sending migrants also needed to hold onto their land for retirement. Thus, O'Flaherty (1998, 544) argued that '[t]he crucial role played by the traditional political system in ensuring household survival may in part account for the widespread support for the traditional political system' that he observed in the south-eastern region of Zimbabwe. Mbiba (2001) corroborated the importance of the social security provided by customary tenure in communal areas for urban workers, but criticised it for being utilised as an excuse to curb the permanent settlement of Africans in urban areas in both colonial and post-colonial Zimbabwe.

I would like also to touch upon the 'reinvention' or 'restoration' of traditional leadership among the communities that had historically been known as more egalitarian or whose leadership structure was not recognised during the colonial period. In post-apartheid South Africa, the Khoisan people,5 whose ancestors were believed to be either decimated or integrated into the mixed population (called 'coloured' by apartheid racial classification) during the seventeenth and eighteenth century in the Dutch-ruled Cape colony, began to assert their indigenous Khoisan identity and called for the recognition of their leadership structures and demand for land. Their activism—often referred to as 'Khoisan revivalism'—intensified in the second decade of the twenty-first century (Sato 2018b) and culminated in the repeal of the TLGFA (2003) and the enactment of the Traditional and Khoi-San Leadership Act (2019). Their movement sought not only to restore their distinct cultural identity, but also demanded recognition from the South African state and the power and authority

5 Khoisan is a general term used to refer to the pastoralist Khoikhoi and the hunter-gatherer San, who lived in southern Africa when Dutch settlers arrived in the seventeenth century. The San people were perceived as 'sub-human' by the colonialists and many of them were hunted down in the Cape colony. The Khoikhoi people were largely incorporated into the colonial economy as slaves and servants and were integrated into the mixed population through intermarriages (socalled 'coloured' in apartheid's racial classification). However, in post-apartheid South Africa, some people who used to be classified as 'coloured' began to identify themselves as Khoisan and demanded their recognition as an indigenous population. There are at least five groupings within Khoisan population in South Africa. They are Griqua, Koranna, Nama, Cape-Khoi, and San (Sato 2018b).

that this recognition would bring to their leaders. Therefore, we need to shift our discussion to the relationship between traditional leaders and the state or the ruling party in these southern African countries.

### *4.2 Chiefs, State/Ruling Party, and Rural Land Governance*

In terms of political system, while all three countries under discussion have multiparty electoral systems with different degrees of free and open competition, the politics of Zimbabwe, Namibia, and South Africa after independence are also characterised by the so-called dominant one-party rule that originated from their respective liberation movements. In this context, it is probably more appropriate to discuss traditional leaders' relationships with the dominant political party, rather than with the state itself. Several researchers, including those cited above (Alexander 2018; Gideon 2019), have suggested that Zimbabwe's ruling party, the ZANU–PF, wooed traditional leaders to their side in order to secure rural votes after they began to encounter significant electoral competition from the MDC. This scenario also applies to South Africa, where the African National Congress (ANC) faced fierce competition from the Inkatha Freedom Party (IFP) in the late 1990s. Before the nation's first democratic elections, the IFP was not only popular in the KwaZulu homeland*—*its original base, but also had many supporters in black urban townships in Gauteng Province, where many Zulu people lived. Although the ANC began to gain overwhelming support inside the country after the release of Nelson Mandela, the IFP's popularity was not shaken in rural KwaZulu. Since the IFP's popular support was believed to have been a result of its close relationship with the Zulu king and chiefs, the ANC hesitated to undermine traditional leaders when it came to power in 1994 (Amtaika 1996; Sato 2000; Beall et al. 2005).

Thus, traditional leaders are seen as voting banks by the ruling parties, even if this assertion may not have been tested scientifically. Nonetheless, the popularity of chiefs and their ability to influence rural voters was proven by a large-scale opinion survey in several African countries, including the three countries discussed here, albeit with major differences among the three. Using the data collected during the fourth round of the Afrobarometer survey that was conducted across 19 African countries in 2008 and 2009, Logan (2013, 354–355, 362–365) illustrated the startling intensity of support for traditional leadership in many countries across age, gender, educational level, and region of residence (rural vs. urban). However, popular support for traditional leadership differed among countries. Among the three discussed here, more Zimbabweans (73%) said that their traditional leaders wielded significant influence, while this proportion was just below 50% in Namibia and just over 30% in South Africa. However, with respect to whether traditional leaders should have more influence in the local community, a greater percentage of Namibians (60%) answered affirmatively, whereas Zimbabweans (51%) and South Africans (34%) were less enthusiastic about this proposition. Thus, it appears that traditional leaders in South Africa have the least influence over local communities and that the majority of local people are not keen to increase their influence.

A new question thus arises: Does the ruling party need traditional leaders or do traditional leaders need the ruling party or the state? This is not an easy question to answer, but there has been evidence that traditional leaders have actively engaged in politics by organising themselves and becoming politicians in South Africa (Oomen 2005, 95–98; Holomisa 2009, 2011). The most famous and influential association is the Congress of Traditional Leaders of South Africa (CONTRALESA). The CONTRALESA was formed in 1986 by traditional leaders who opposed the KwaNdebele homeland's 'independence' plan. During the period of political transition, it argued that the authority of traditional leaders under customary law should be recognised even after the transition to democracy. After democratisation, several chiefs, including Phathekile Holomisa*—*the former chairperson of the CONTRALESA and Mandla Mandela*—*Nelson Mandela's grandchild*—*continued to influence the policy formation process as members of Parliament from the ruling ANC (Sato 2018a). The chiefs' lobbying activities appear to be stronger in South Africa than in Zimbabwe and Namibia, which seems to suggest that traditional leaders need more state recognition and support in South Africa since they have the least influence on and popularity among local communities. Berry (2018) argued that South African chiefs have to rely on the state to legitimise their power and authority because they have lost their control over the territory and material resources under settler colonialism.

The analysis of the Afrobarometer survey (Logan 2013) also reveals that popular support for traditional leaders arises not only based on who they are, but also what they actually do. This point was illustrated by Mkodzongi (2016) using a Zimbabwean example. He discussed the rivalry between local chiefs and the central state over the benefits accrued from platinum mines in the context of the indigenisation policy in MashonalandWest Province. The local chiefs, who 'instrumentalised their position as 'representatives' of their ancestors', and the 'ZANU–PF government ministers' tried to control the community trust that would become local shareholders of the mining company. In this conflict between the local chiefs and the ZANU-PF politicians, the latter were perceived as 'outsiders'. The locals thus rallied behind the chiefs to ensure that they would benefit from the mine (Mkodzongi 2016, 103, 107–110). Alexander (2018, 141–143) also stated that the failure of the VIDCOs and WADCOs in the 1980s stemmed from the fact that these local institutions were given the task of implementing the unpopular policies of the central government. When the interests of the central government and those of local communities are incompatible, the locals support the voices that represent local interests. Traditional leaders have served as such voices in several places.

In South Africa and Namibia, the traditional authority was the local government in their homelands during the colonial and apartheid periods. While it was possible that they governed people in a 'despotic' way (Mamdani 1996), other research has argued that chiefs had to rely on support from residents to function as local governments in situations where they did not have sufficient administrative or financial support from the homeland governments. McIntosh (1992) argued that chiefs acquired a certain degree of legitimacy through this process. Murisa (2013, 256) also stated that in Zimbabwe

[t]he enduring popularity of the office of chief among people derived from the fact that, despite the overt attempts at co-option by the [colonial] state and the lack of explicit coercion, the former maintained a form of independence and autonomy in articulating the interests of the subject communities.

After independence, the system of electing local leaders through a democratic method was also introduced in southern African countries. Therefore, theoretically, local governments or elected local councillors should be able to represent local voices against the central government if the latter wants to intervene in a manner that might damage the local communities. However, there are many examples of inefficient local governments that cannot fulfil their expected roles with respect to the provision of public services. Problems with corrupt local councillors are frequently reported in the media in South Africa (Ainslie and Kepe 2016). Interestingly, the Afrobarometer survey also reported that people do not necessarily view traditional leadership and local government as competing institutions. According to Logan (2013, 367–368), 'those who trust traditional leaders are also more likely to trust their local councillors'. Moreover, she stated that 'people regard [traditional leaders] as markedly better listeners' and this is their 'greatest apparent advantage over local councillors'. In principle, people appear to be more concerned with whether leaders care about them and whether they display accountability to the local people.

Nonetheless, not all traditional leaders care equally for the people they claim to represent or are capable of managing access to land in a manner that would benefit local people. Even though the central government of all three countries bestowed the power and authority over rural land administration to traditional leaders, this does not mean that their authority is uncontested. I have discussed this notion in Sect. 2, especially in the case of South Africa. Additionally, the system of rural land governance by traditional leaders in communal areas is not free from problems, as was demonstrated through the aforementioned Namibian case. Traditional leaders are not immune to modern sources of corruption, such as wealthy or well-connected individual farmers who want to monopolise communally owned resources for their own interests. Some of them even use their state-sanctioned land administration power to enrich themselves without sharing the benefits obtained from the land with their people. Moreover, according to popular opinion, land allocation is not the top responsibility of traditional leaders. In the Afrobarometer survey, fewer than 30% of respondents stated that traditional leaders should bear the primary responsibility for this task (Logan 2013, 360). Therefore, when it comes to rural land governance, we should also consider alternatives to land allocation by traditional leaders. The community conservancy developed in Namibia serves as an alternative that might effectively defend communal lands against encroachment by wealthy farmers.6

6 The management of natural resources such as wildlife by rural communities is not unique to Namibia, but it has been widely promoted and adopted in the southern African region since late 1980s, as evidenced by Zimbabwe's CAMPFIRE programme (Balint and Mashinya 2008; Tchakatumba et al. 2019). It was originally devised to manage the conflicts between the human and wildlife

In Namibia, community conservancy is regulated through the Nature Conservation Amendment Act (1996). The Act intends to partially decentralise wildlife management to local communities who organise themselves as a conservancy entitled to the profits accrued from wildlife through tourism ventures, such as safari camps and trophy hunting (Jones 2010). Since the first conservancy was established in 1998, the number of registered conservancies increased to 29 in 2003*—*covering 25% of the total communal area (Lankhorst 2009, 210–211). By 2017, the number of conservancies increased to 83 and more than half of communal areas became community conservancies or community forests (Gargallo 2020, 132). However, apart from a small number of conservancies that became popular tourist attractions, most of them only generate marginal revenues for local communities. Despite this, conservancies were continually established, apparently because communities saw them as a means to strengthen their land claims. Since establishing a conservancy entails defining its boundaries and membership, people view it as a means 'to keep outsiders out' and to prevent the enclosure of grazing lands by wealthy individuals in communal areas. Lankhorst (2009, 211–212) argued that conservancies could bear a particular appeal for the San people to secure their lands, as most of their leadership were not recognised by the Traditional Authorities Act (2000).

However, not all researchers share this optimism regarding community conservancies. Lapeyre (2010, 96) discussed a case where outside farmers grazed their livestock in the section of conservancy that was meant to be used for tourism and was leased out to a private company. Since this act was not illegal and was recognised as their 'customary right', the private company could not unilaterally remove the concerned livestock. Moreover, conservancies are not free from a chiefly influence. There are cases where traditional authorities have tried to control the management committees of conservancies or to secure benefits accruing from conservation-related activities. In addition, members of conservancies may not be able to agree on the land use plans. Some may want to use the land for agricultural purposes, whereas others may want to utilise it for grazing or tourism. In most conservancies, members need to demarcate areas to be used for different purposes such as hunting, tourism and livestock grazing, but agreeing on these land use plans is often difficult (Gargallo 2020, 138–140). Thus, community conservancies still entail certain complicated group dynamics of communal land management.

### **5 Conclusion**

In the conclusion, I would like to return to the fundamental question of land tenure reform that was formulated in the South African White Paper on Land Policy, but which should also apply to Namibia and Zimbabwe. In its present form, is the customary land tenure system able to strengthen the land rights of residents

populations. However, what is unique to Namibia is that rural people began to use the concept of community conservancy to prevent the enclosure of communally-held resources by rich farmers.

in the communal areas of these southern African countries? In other words, does the customary tenure system offer a real alternative to the freehold tenure system? (Beinart et al. 2017, 48). Reviewing relevant literature on land tenure reform in these three countries has revealed that the principal contentions surrounding it are related to identifying the appropriate entity to administer the communal land and whether traditional leaders should continue to regulate the access to land, albeit under some degree of supervision by state institutions such as land boards and district councils. Evidently, there are cases where traditional leaders have demonstrated ineffective oversight and control over the access to land, especially grazing lands. This was particularly observed in Namibia, where wealthy and well-connected ranchers either defied or corrupted traditional leaders and privatised communal resources. In Zimbabwe, some traditional leaders, especially *sabhukus*, sold pieces of grazing land to newcomers for residential and agricultural purposes. Although this may be viewed as a 'traditional' practice, and not all *sabhukus* charge exorbitant fees, it can be argued that traditional leaders undermine the locals' future land needs by selling it to outsiders and that some leaders sell land for personal gain.

Some forms of alternative institutions have been proposed, such as a land management committee that is independent of traditional authorities in South Africa and community conservancies in Namibia. However, there is no guarantee that these alternatives will manage communally held resources more effectively. The administration of communal lands will always be a complicated process*—*regardless of who is selected to do it*—*due to the group dynamics, different demands for land usage, and the issue of autochthony and migrants. This is particularly true in the context of the increasing scarcity of land in communal areas due to the increase in the number of both population and livestock, which is a result of a natural increase and/or in-migration. Unless the total landmass is enlarged through land redistribution programmes, land management in communal areas will only increase in difficulty especially in Namibia and South Africa*—*where land redistribution has progressed in a slow and limited manner.

Thus, I would argue that rather than focussing on traditional leaders, we need to go back to the debates on the role of customary land tenure as social security, even though these two debates have been historically interconnected. In Zimbabwe and in parts of South Africa, the attempts by the colonial and apartheid governments to introduce individual tenure in order to create full-time 'master farmers' in native reserves was met with fierce opposition (Beinart 1984; Alexander 2006). Rural people opposed it because this modernisation programme entailed other measures to make their agricultural practices more conservation-friendly, such as the forced culling of livestock and back-breaking contour construction. Urban migrant workers opposed it because they feared losing their rights to land in rural areas, which acted as a safety net for them. These developments occurred in the 1950s. The question is, are the political economies of southern African countries still characterised by predominantly temporary migration from rural areas to mines, farms, or urban areas? Unless we address the migrants' fear of losing their stakes in rural areas, they will keep relying on rural areas for their social security needs. In other words, we need alternative forms of social security to customary land tenure for urban workers and city dwellers, so as to relieve the pressure on rural land. Once that is achieved, better ways of managing land in rural areas can be discussed.

### **References**

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# **Politics of Land Resource Management in Mozambique**

**Akiyo Aminaka**

**Abstract** Mozambique's 1997 Land Law was praised by international donors and the country's own civil society for its democratic and open drafting process. The process included public hearings throughout the country and the recognition of customary law. However, once it became operational, there were many instances of so-called land grabbing. This chapter argues that the reason for this lies in the political operation of the law rather than in the technicalities of its application. This chapter aims to explore the political dynamics in Mozambique that distort the implementation of the Land Law of 1997. The land law in Mozambique was developed with the technical support of international donors, and the government of Mozambique followed these external trends in the expectation of receiving financial support and private investment while it also reflected the axis of conflict in Mozambique's domestic politics. The case studies show that the operation of land law has resulted in the emergence of party-political oppositional axes in rural areas. These facts suggest that the specific political environment strongly influences the process of law-making and implementation. Mozambique's political environment is an obstacle to achieving the law's original objectives of establishing rights to land resources and social stability.

**Keywords** Land · Land law · Traditional authority · Mozambique

### **1 Introduction**

Mozambique's land law reform has been steadily prepared and was provided with a broad direction by international donors that anticipated the transformation of the economic system at the end of the Cold War. The interests of the post-Cold War international community and the Mozambican government were aligned; the former promoted the transformation of the socialist country into a capitalistic economy, while the latter needed external aid and capital. This motivation of economic development

A. Aminaka (B)

© The Author(s) 2022

Institute of Developing Economies, JETRO, Chiba, Japan e-mail<EMAIL_ADDRESS>
S. Takeuchi (ed.), *African Land Reform Under Economic Liberalisation*, https://doi.org/10.1007/978-981-16-4725-3\_6

outlined the direction of land reform to establish rights to use land resources and obtain loans secured by land rights.

Since independence, the Mozambican government has been run by the Mozambican Liberation Front (Frente de Libertação de Moçambique: Frelimo). The economy had been devastated by the civil war (1977–1992) against the Mozambican National Resistance (Resistência Nacional de Moçambique: Renamo). Additionally, with the regime change in the Eastern bloc, which supported the post-independence socialist economy in Mozambique, strategic aid to Mozambique was cut off. The Mozambican government was looking for a new financial supporter in the new international order.

Following the end of the Cold War, Mozambique ended the civil war with the help of United Nations peacekeeping operations and reconstruction assistance, including support for democracy. The peace agreement was signed in 1992 on the condition that Renamo would become a political party, in order to introduce a multiparty system. The democratised government announced the National Development Plan together with the National Land Policy1 in 1995, immediately after the first general election in 1994, and subsequently enacted the Land Law of 1997.2 These are the basic laws on rural land resource management, the subject of this chapter, which apply to almost 70% of Mozambique's population living on rural land.3

The new land law was praised by policymakers and local civil society organisations for participatory processes that represented the ideals of a post-conflict democratic society (Tanner 2002). Despite this, Mozambique is often criticised for the drastic increase in the number of large-scale land trades, so-called land grabs (Oakland Institute 2011). Policymakers have noted an overwhelming gap in legal literacy between investors who apply for land usufruct and rural communities that have land usufruct. To fill this gap, policymakers train practical assistants, aiming to diffuse legal knowledge into rural areas (Tanner and Bicchieri 2014).

However, the root of land conflict in Mozambique extends beyond technical problems that can be resolved by the law. The question concerns the difficulty of democratic decision-making and the fair distribution of interests in rural communities. This is because the Mozambican state gives a place to the village governing bodies in a highly politicised power structure that, throughout the introduction of the multiparty system, saw fierce contests between Frelimo and Renamo. The state reconstructed the relationship between the state and rural society relative to its land reform by adopting customary elements within its land resource management policies. It is dangerous to treat rural governance through land resource management as a technical problem, separate from the political power structure (Takeuchi 2014).

This chapter presents the political dynamics of land resource management in Mozambique by examining the actual situation at the site of implementation of the

1 Resolução 10/95, Política Nacional de Terras.

2 Lei 19/97, Lei de Terras.

3 With the enactment of the Local Authorities Law of 1997 designating special local authorities (municipalities) in preparation for the first local elections in 1998 and the subsequent creation of new local authorities, urban land is now administered by these municipal authorities.

land law. The remainder of this chapter is organised as follows. The first section traces the evolution of Mozambican land law in an international context. The second section examines how the Frelimo regime has used the legislation on resource management discussed in the first section as a political resource. Two motives for the ruling party will be evident here: one is the interest in the revival and integration of traditional authorities into administrative structures, in order to gain votes from the introduction of democratic electoral systems in the 1990s; another is the interest in the management of new natural resources since the 2000s. The final section discusses the combined effects of those political interests on the operation of land resource management at the sites. Finally, the chapter draws implications from these considerations.

### **2 Legal Design Amid an FDI-Driven Economy**

Recent legislation on resource management in developing countries is not free from international influence as, although it is a national law, it was developed through contact with foreign actors. The case of Mozambique is no exception. This section traces the evolution of Mozambican land law and its shift in the focus of land policies in an international context since Frelimo's decision to transform its economic system from socialism to capitalism in 1984.

Frelimo's decision on regime change had a profound impact on the 1995 National Land Policy. Its opening statement explains that Mozambique is entering a new stage of economic and social development, characterised by a market economy. It is justified to formulate a new land policy that differs from the socialist-era guidelines that guided the drafting of the current law. The new land policy is based on the simple principle that land is one of the most important natural resources for the country and should, therefore, be valued (República de Moçambique 1996). It is based on the following principles. First, it guaranteed the use of land for the nation and investors by establishing competencies for land; second, it elaborated a principle for the transfer of land usufruct rights to construct partnerships between the government and investors, though the title belongs to the state, which bans trade in land.

The construction of partnerships with investors to promote the reconstruction of the Mozambican economy was already a fixed plan since the negotiations between the Mozambican government, the World Bank, and the International Monetary Fund in 1984, which resulted in the acceptance of the Structural Adjustment Programme in 1987. These international donors deeply influenced the management of land resources and intended to make loans available to peasants by establishing modern individual titles to land in rural areas from the 1990s (Burr 2005; De Renzio and Hanlon 2007). However, this does not imply that the World Bank is refusing to recognise the importance of customary law. On the contrary, it asserts that customary institutions in Africa, such as common titles, play a role in the avoidance of landless poverty.

In addition to donor agencies, foreign direct investment (FDI) has a tremendous impact on domestic politics. Over the years since colonial times, foreign capital has driven economic development in the absence of national capital, without distinction among colonial, socialist, or post-democratic capitalist regimes. In Mozambique, the economic opportunities for local politicians to emerge from local notables were virtually non-existent. Thus, the donor intentions and FDI trends also strongly influenced national development policy, making it easier for politics to emerge with a direct link to the centre of the party-state.

The Mozambican government prioritised legal preparations to attract FDI, in order to rebuild its economy, soon after the peace agreement in 1992. Legislation on land resource management was also prioritised, in order to standardise it globally and to accommodate FDI. The National Land Policy was announced in 1995, and the Land Law and the Land Law Regulation were enacted in 1997 and 1998,4 respectively. At the same time, the Policy and Strategy for the Development of Forest and Wildlife was published in 1997, and the Forest and Wildlife Law was enacted in 1999.5 In 2000, the Technical Annex for Community Land Delimitation6 was enacted to provide guidance for delineating boundaries between adjacent villages in rural areas and between villages and forests, followed by the Regulation for Forest and Wildlife Law.7 Then, in 2005, a ministerial order8 made a mechanism for channelling and using 20% of forest and wildlife exploitation tax in favour of local communities. These sets of laws set out the policy for the use of land resources and the legal procedures for establishing the use of land in rural areas, as well as the potential for use of land extending beyond the rural areas. These laws have laid the groundwork for land use throughout the country.

The new series of laws approved the acquisition of land usufruct (*direito de uso e aproveitamento*: DUAT) certificates by individuals, corporate bodies, and communities, except for title to public land. In addition, for the first time, they approved customary land usufruct by peasants on rural land and detailed regulations for delimitation. Further, the acquisition of a DUAT by communities or individuals is not obligatory, and both customary law and the new land law entail land usufruct. According to the Land Law in 1997, which recognises the customary law, the land usufruct is originally granted without a DUAT deed, and DUAT is not mandatory for those in rural areas that are subject to customary law. In this sense, the precedent in land reform was a procedure for external development actors that are not subject to customary law to obtain DUAT for use of land resources in rural areas.

Based on the National Development Plan published in 1995, the Mozambican government implemented its 'Agricultural Development Programme of 1998–2005 (Programa de Desenvolvimento da Agricultura: PROAGRI)' under the initiative of the Ministry of Agriculture to protect peasants' access to resources and increase

4 Decreto 66/98, Regulamento da Lei de Terras.

5 Lei 10/99, Lei de Florestas e Fauna Bravia.

6 Diploma Ministral 29-A/2000, Anexo Técnico para a Delimitação das Terras das Comunidades.

7 Decreto 12/2002, Regulamento da Lei de Florestas e Fauna Bravia.

8 Diploma Ministerial 93/2005.

their productivity through improved resource management. However, the tone of increasing smallholder productivity began to change gradually from the end of the programme. The Frelimo government reacted to the growing global interest in biofuels from 2004, the year before the 2005 general election, and began to develop the idea of linking cash crop cultivation by smallholders and recommending the cultivation of the oilseed crop jatropha to farmers. The cultivation of jatropha, as well as existing sugarcane plantations, has attracted interest from private investors as a raw material for bioethanol. As a result, FDI in the agricultural sector has increased significantly (Schut et al. 2010; see Fig. 2). As if to follow those FDIs, Mozambique was selected as one of the 11 priority countries for a major agricultural project founded by the American entrepreneurial foundation, the Alliance for a Green Revolution in Africa (AGRA) for 2006–2020.

The government followed up on these legislative developments with several campaigns to advance land registration across the country. This included the campaign for land resource management, which in effect includes encouraging land registration, communicating information about the process, and creating branches of financial institutions throughout the countryside based on the premise that there would be the possibility of future land-backed loans—although simply registering the land does not immediately result in loans or investment. At the same time, from 2006, a series of campaigns supported by European donors and the World Bank began to disseminate information to the rural population, including information on how to determine the common land, initially starting with training and capacity building for paralegals (Tanner and Bicchieri 2014).9

While the training of these personnel takes time, the intention of the agricultural policy evolved into large-scale investment following the worldwide jump in cereal prices in 2007 and 2008. The government responded to these foreign interests by publishing the Strategy for Green Revolution and the National Biofuels Policy and Strategy.10 There was no shortage of plans to promote agricultural investment from outside the country. During this period, the governments of Japan, Brazil, and Mozambique announced a broad-based agricultural development project, ProSavana, touting South–South cooperation, with emerging countries also joining the ranks of new donors soon after the drastic increase in crop prices in 2008. Agricultural investment as a share of total investment drastically increased by 85.5% in the following

9 Beginning with 'Community Land Initiative (Iniciativa para Terras Comunitárias)' (2006), 'Consultative Forum for Land (Forum de Consultas sobre a Terra)' (2010), and, more recently, 'Secure Land Campaign (Campanha Terra Segura)' (2015), there is an impression that this was done in haste for the 2017 assessment, the 20th anniversary of the implementation of the 1997 Land Act. Supplemental campaigns have continued in 2017 and beyond, such as the 'Land Management Project (Projecto de Administração da Terra em Moçambique)' (2018–2024) led by the Ministry of Land, Environment, and Rural Development (Ministério da Terra, Ambiente e Desenvolvimento Rural: MITADER). Current projects aim to improve infrastructure with a package of land registration, water, electricity, roads, and financial institutions to return the revenue from land resource use and management to local communities through village administration.

10 Resolution 22/2009.

**Fig. 1** Agricultural investment as a part of total investment in Mozambique 2005–2019. *Source* INE (2006, 2007, 2011–2020). *Note* No data were available for 2007 and 2008

year, as shown in Fig. 1. The number of applications for DUAT increased, while the number of contracts not fulfilled by investors also increased.

In response, the Mozambican government began to issue DUAT with more caution and set a moratorium on the issuance of large-scale DUAT of over 1000 ha from the end of 2009 until October 2011 (Oakland Institute 2011). During the moratorium, the agricultural policy was revised to promote small- and medium-scale commercial agriculture in addition to large-scale ventures. It also revised the procedures found in the Land Law Regulations of 1998, increasing the number of community consultations. Around the same time, in 2010, the World Bank published its 'Principles for Responsible Agricultural Investment' (PRAI). In 2011, when, after the moratorium, DUAT was reopened, the government published its 'Strategic Plan for the Development of the Agricultural Sector (PEDSA): 2011–2020'. The Ministry of Agriculture drafted this plan in 2007 with the technical cooperation of and funding by the Food and Agriculture Organization of the United Nations (FAO). PEDSA does not explicitly mention PRAI; however, as the FAO was involved in the elaboration of both PEDSA and PRAI, it can be concluded that the policymakers of the FAO and Mozambique expected the establishment of a common international understanding of agricultural investment by PRAI and then subsequently published PEDSA. PEDSA targets food security, nutrition improvement, and the reform of the agricultural sector to increase sustainability and competitiveness in the world market. It was also intended to improve management of agricultural land, fishing ground, and forests, recommending the registration of communal lands to protect them (MINAG 2011). The Community Land Initiative campaigns mentioned above, including paralegal training, PEDSA, and PRAI, all involve common policymakers.

After the global jump in cereal prices in 2007 and 2008, international donors demanded even more reform from the Mozambican government to make DUAT tradable (USAID 2007). Additionally, the 'New Alliance for Food Security and Nutrition', the support framework set up by the G8 summit in 2010, recognised ten African countries as having great potential for agricultural development, of which Mozambique was one.

However, the tide of this agro-energy resource changed in around 2007, when it was discovered that there is a high potential for the development of natural gas fields offshore in the Afungi Peninsula, northern Mozambique. In 2010 and 2011, worldclass reserves of natural gas were confirmed by several major energy companies. While the extraction of the natural gas discovered takes place offshore, the logistics facilities to liquefy it and transport it to international markets are built onshore. This led to a need to secure large tracts of industrial land and forced the resettlement of local people who had made their livelihoods through fishing and agriculture. In accordance with the land law, initial consultations were carried out with local communities in the Afungi Peninsula, the area targeted for development in 2013. The consultation process had to be repeated several times over the years due to the inappropriate use of documents that should have been signed by representatives of the community when a company applies for DUAT, but were signed and submitted by a person not representing the community. Eventually, the resettlement process proceeded between late 2017 and 2018, with the construction of the plant underway as of 2021.

It remains unclear whether the consultation process, which was supposed to have been set up with the administration in the area, led to the signing of the petition by someone who did not represent the community. An important hint for the design of the discussion in the third section of this chapter is the fact that the area covered by this development project at the Afungi Peninsula was the site of Renamo's support base in the early elections.11

During this time, the application and acquisition of DUAT by individuals or jointly by rural communities was being pursued with the technical assistance of the Ministry of Land, Environment, and Rural Development (Ministério da Terra, Ambiente e Desenvolvimento Rural: MITADER). It was a part of a countermeasure to articulate their rights to avoid land disputes with external developers, alongside the Environmental and Social Management Framework that each borrowing country was obligated by the World Bank to produce from 2018. The framework was meant to strengthen the land rights of communities and individuals through delimitation and to improve their ability to negotiate with investors (MITADER 2016). Land registration is still underway in rural areas, as of 2020.

11 The percentage of votes cast in the early elections can be found down to the county level on the Website of the Institute of Social and Economic Studies (Instituto de Estudos Sociais e Económicos: IESE),Mozambique's independent research institute (www.iese.ac.mz/cartografia-eleitoral/#/). The area around Afungi Peninsula, which was Renamo's base of support in the immediate aftermath of democratisation, has been weakened by the development of party politics in Mozambique and has lost its capacity to receive the political demands of the population. The lack of transparency in the development of this political space is not unrelated to the start of radical Islamist terrorism, which continues to this day. The northern part of the country, including the Afungi Peninsula, has been affected by attacks by armed groups, identified as Islamic extremists, since October 2017, forcing more than 700,000 people to flee their homes by June 2021.

Another important aspect of land resource management is the creation of revenues for local communities to benefit from these developments. The Conservation Law of 2014 provided specific guidelines for the use of land resources by local communities in rural areas. This was preceded by the Landscape Protection Law and related regulations and a ministerial diploma in 2005, which defines the mechanisms for channelling and using 20% of the value of the consigned fees on local communities.12 The 2014 Conservation Law allocates 20% of the profits from the use of forest resources and other resources to local communities and encourages their development planning. The Conservation Law clarified the role of the district administration in drawing up community development plans in line with this legal framework. It gave the district administration the power to decide how to redistribute a portion of the proceeds of large-scale resource development within the district.

This section has confirmed that the flow and direction of legal design were oriented under the auspices of international legal development. A great deal of capital investment was made in accordance with the legal system created. In the process of land law reform that we have seen in this section, the proactive position of the Mozambican government only appears to welcome investment in response to powerful external influences. However, in the next section, by looking at Mozambique's land law reform in light of domestic political developments, we will observe that the ruling and opposition parties, which are in close competition, were extremely interested in land law reform.

### **3 Political Interests in Village Administration**

This section examines how the Frelimo regime has used the legislation on resource management discussed in the first section as a political resource. This section presents two phases of political interest. The first phase encompasses the integration of traditional authorities into administrative structures, in order to gain votes from the introduction of democratic electoral systems and between the first general election in 1994 and the third general election in 2004. The second phase sees growing interest in the management of new natural resources between the third general election in 2004 and the sixth and most recent general election in 2019 (Fig. 3).

12 Lei 10/99, Lei de Florestas e Fauna Bravia, Decreto 12/2002, Regulamento da Lei de Florestas e Fauna Bravia, and Diploma Ministral 93/05.

### *3.1 Revival of Traditional Authority for Vote-Getting*

The revival of traditional authority within the framework of the modern state is a phenomenon that has been common to many African countries, including Mozambique, since the 1990s. According to Oomen (2005), the re-emergence of traditional leader is linked to the postmodern phenomenon of the weakening of the nation-state and the assertion of collective rights based on culture. There are several reasons for supporting the chiefs: achievement, government direction, and the lack of other options. They were supported not because of their antiquity, but because of the symbolic value and political power that they have in the new world (Oomen 2005). Oomen's argument that the revival of traditional authority is a postmodern phenomenon can be applied to the colonial state and the modern state is, as Ntsebeza (2005) states, an extension of the colonial state. This would also apply to the ups and downs of the social status of traditional authorities throughout Mozambique's history of colonial rule, independence and socialism, and post-democratisation.

This subsection presents how the Mozambican government positioned and articulated the traditional authority within the hierarchical structure of administrative organisations. Mozambique's administrative units are shown in Fig. 2, divided into provinces, municipalities, districts, and administrative posts. An administrative post is divided into districts in urban areas, while it is segregated into localities and subdivided areas in rural areas. According to the definition of the Land Law of 1997, among the mentioned divisions, 'communities' refer to localities or smaller areas

**Fig. 2** Structure of administration and routes of appointment or election in 2020. *Source* Lei 8/2003, Lei 1/2018. *Note* The Communal Authority, a new framework established in 2000, consists of a hereditary 'traditional authority', the régulo, as well as a permanent secretary (secretário), originally an executive body of the socialist era, and 'community leaders', many of whom are veterans of the Frelimo and national armed forces. The scope of 'community' and 'communal authority' was defined by the 1997 Land Act and the 2000 Proclamation on the Joining of National Administrative Institutions and Communal Authority (Decreto15/2000). Numbers in the round brackets show the number of each position in 2020

with groups of households and individuals that protect the public benefits of its residents through the preservation of residences and the cultivation of land, forests, culturally important places, pastoral areas, water sources, and reclaimed land.

These administrative units work for land resource management as follows. At the provincial level, provincial governors are responsible for the allocation of DUAT for parcels of 0–1000 ha of land, according to article 22 of the Land Law of 1997. Issuance of DUAT on larger land is up to the minister with jurisdiction over the activities of the applicant for the issuance of the land usufruct. At the district level, the role of district governments was somewhat driven by the passing of the law, establishing the principles and rules of organisation of local state bodies. The passing of legislation on land-use planning in 2007 additionally strengthened the role reserved for these bodies about the management of land and other natural resources at the local level, highlighting the importance of approving district land-use plans. It should be noted that under the land law the lack of district land-use plans with cadastral services prevents district governments from making land-use decisions in their area of jurisdiction. At the community level sit localities that are subordinate to the villages within the administrative division. The series of laws on land and forests include the specific provisions that require the participation of these communities and their institutions in the management of natural resources by customary law.

The traditional authority in Mozambique called *régulo*13 is the gatekeeper for communal lands, as it is responsible for customary law according to the Land Law of 1997 (Serra 2014). However, the role of the *régulo* has been highly politicised and used by the state as a political tool for rural governance since the colonial period. After independence, the Mozambican revolutionary government, led by Frelimo, deprived *régulo* of this role. In opposition to the deprivation of its authority by Frelimo, some *régulo* naturally turned to support Renamo. After democratisation, the *régulo* were once again authorised by the state as a member of the newly established village governance body, the 'communal authority', by the proclamation of the decree in 2000 on the Forms of Articulation of the State's Legal Organs to Communal Authority.14

The political process that established this decree in 2000 reflects the interests of Frelimo and Renamo as follows. Since 1991, in anticipation of the end of the civil war, the Ministry of Home Affairs (Ministério da Administração Estatal) played a role in managing community security to prevent the recurrence of the civil war and, therefore, recognised the importance of traditional authorities overseeing communities at the grassroots level. The ministry carried out a research project on the social position of the *régulo* called 'Decentralisation and Traditional Authority (Descentralização e Autoridade Tradicional)' between 1991 and 1998 (Serra 2014).

13 *Régulo* in Portuguese means 'king of a small country'. Colonial administrative reform in 1907 set the administrative units *regedoria* for African 'natives' and appointed *régulo* as being responsible. Its political position shifted several times, along with regime changes in the colonial, socialist, and democratic periods.

14 Decreto 15/2000, Formas de articulação dos órgãos locais do Estado com autoridades comunitárias.

Around the same period, the tensions that accompanied the elections in 1994, 1998, and 1999, the period immediately after the end of the civil war, vividly reproduced the axis of conflict that existed during the civil war. Laws on land and the legal role and status of a traditional authority constituted an important issue in the elections. During deliberations on the Land Law in 1997, Renamo pointed out that Frelimo had previously deprived the traditional authority of its powers, while Renamo supported the establishment of rights to private property and the expansion of the power of traditional authority. Frelimo, for its part, expressed the negative opinion, at first, that traditional authority was not always a guardian for peasants, due to frequent abuse of power (AIM 1997; Kloeck-Jenson 2000).

In the two early national elections, Frelimo won by a narrow margin. Frelimo felt threatened when it became clear that the difference in vote share to the opposition was very small (Fig. 3). The high turnout of the opposition parties, especially Renamo, was a result of their solid support in the rural areas. With each experience, Frelimo became more aware of the need to enlist the support of traditional authorities to increase their vote share in rural areas. Therefore, the interests of the concurrent parties, both Renamo, who had traditionally supported the traditional authority position, and Frelimo, who had renewed its recognition of the traditional authority, coincided at the point of each strengthening its constituency by incorporating traditional authority at the lowest level of the administrative organisation of the state.

**Fig. 3** Vote share by party in the National Assembly elections (%). *Source* Retrieved from IESE Cartografia Eleitoral (www.iese.ac.mz/cartografia-eleitoral/#/) on 5 March 2021

In 2000, the law officially recognised the traditional authority of *régulo* as part of communal authority. Although the same decree also recognised as members of the communal authority the administrative secretary (*secretário*) at the village level, which had existed since the socialist period, and the community leaders, who were strong supporters of Frelimo, as a member of communal authority. In sum, communal authority in village governance was implemented through political appointments, and Frelimo supporters remained dominant (Buur and Kyed 2005) (Fig. 1).15

Moreover, another law in 2003 placed this communal authority within the consultative council, which is the governing body for each administrative unit that is smaller than an administrative post, such as locality and population (Forquilha 2010).16 Then, another decree in 2005 approved the use of the national emblem by members of the communal authority, provided them with a uniform, and granted them a salary.17 The expected role of the *régulo* in the context of land law should be recalled here, namely, passing judgement on the management of land resources according to customary law.18

The consultative council was originally intended to act as a decision-making body for communal land under the Land Law Regulations of 1998 and the Technical Annex for Community Land Delimitation of 2000 (Forquilha 2010). According to these laws, the consultative council in the locality, which is the lowest level, is to be led by the chief of administrative post as chair, who is appointed by the Ministry of Home Affairs. The remaining components of the consultative council are the communal authorities, including the *régulo*, secretary, and community leaders. Among these personnel in the communal authority, only the *régulo*'s political position could be divided into pro-Frelimo or pro-Renamo, while others are all pro-Frelimo. The communal authorities, who play a decisive role in decision-making regarding community issues, are required to act neutrally and contribute to the public interest. However, as they are politically appointed, they inevitably act politically.

As we have seen in this subsection, it is evident that both Frelimo and Renamo perceive the advantages of deepening and widening their influence in rural areas using international trends for the recognition of customary law on land reform. The composition of the consultative council and communal authority directly reflects party politics at the community level. Thus, it is necessary to understand the influence of the highly political composition of the consultative council upon implementation of the 1997 Land Law. The impact of the political position of the *régulo* and the political antagonism within the consultative council on the implementation of the 1997 Land Law will be examined in the following Sect. 4.

15 For example, in 2014, the municipality of Nampula registered 326 community leaders, and 90% of those were ex-combatants of the liberation struggle or demobilised soldiers of the civil war—in other words, those who stood on the side of Frelimo (Verdade 2014).

16 Lei 8/2003 Conselho Consultivo de Povoação e de Localidade.

17 Decreto 11/2005, Regulamento da Lei dos Órgãos Locais do Estado.

18 The bewilderment and the rivalries that emerged and faced rural communities at the inclusion of traditional authority *régulo* in the administrative structures of the early 2000s were detailed by Gonçalves (2006), who conducted research in southern Mozambique in 2002–2003.

### *3.2 Growing Interest in Resource Management*

The interests of the ruling and opposition parties in village administration during the 1990s and the early 2000s were largely political and directly related to elections, as confirmed in the previous subsection. However, this situation changed rapidly after 2007. Since the international grain price hike in 2007, there has been a massive increase in FDI in agribusiness, and a spate of natural gas, coal, heavy sand, graphite, rubies, and other resources have all been developed in rural areas (Fig. 1). This subsection is designed to put forward the fact that the increased potential for economic development in the countryside gave rise to another political motive that of increasing the influence of these interests.

Let us review the relationship between the provincial government and the central government regarding its functions, roles, and powers. The central government passes responsibility to the provincial government for the transmission and execution of various policies and the budgets allocated to them. In contrast, information and tax revenues could be siphoned off from the provincial governments by the central government. Whether or not to give state governments the power to manage these resources, if any, will be a focus of debate in the central government. In this regard, in Mozambique, where it is estimated that 90% of the economically active population works in the informal sector, the institutional tax revenue potential is from corporate taxes. However, from 2005 to 2006, when the law on the provincial legislature was being debated, companies of a certain size that could be expected to collect corporate tax were concentrated in the suburbs of the capital city, and the central government very rarely looked at the provinces for a large amount of tax revenue that could be generated.

As these resources were being developed in rural areas, there was an expectation of local financial resources and an increased incentive for the Frelimo government to immediately manage the resources, including the land itself. Since the announcement of the world's leading reserves of natural gas, the Frelimo government led by Armando Guebuza (2005–2009, 2010–2014), looking ahead to its second term in office from 2010, had been surrounded by expectations of future resource development and new interests aimed at acquiring the concessions associated with development. From this period onwards, the authoritative tendencies of the Guebuza regime increased. Guebuza threw all his resources at the election campaign for the 2009 general election and achieved an overwhelming victory, in the face of criticism of electoral fraud. The results of the election in 2009 also showed that even in the central provinces, where Renamo had defeated Frelimo in previous elections, Renamo lost by a wide margin (Table 1). As Frelimo won the election in 2009 by an overwhelming victory, giving Frelimo an advantage in the National Assembly that allowed it to pass legislation on its own, Frelimo made the most of that advantage and passed laws that further strengthened its support base.

Frelimo's intransigence led to the clashes between Renamo's military wing and Mozambican forces from 2012 to the present. In the latest official negotiations with the Frelimo government in 2018, Renamo demanded the transfer of a part of the

**Table 1** Results of general elections at the national, province, and district levels 1994–2019 (%)

 Retrieved from IESE Cartografia Eleitoral and composed by the author

*Note* The data from all the polling posts before 2009 are available, but the result of the last election in 2014 has been shown through a 10% sample survey, and the data at district and area levels were unavailable for the focus area of this study. authority of land resource management to issue large-scale DUAT from the provincial governor appointed by the president to the provincial assembly composed of elected members. Renamo also required that a part of the tax revenue acquired by resource management would be used to support the provincial government (MNRC 2015). These requirements exhibit a repulsion to the centralisation spearheaded by Frelimo, and Renamo's requirements became more relevant for land resource management. As a result of negotiations between these two major parties, public elections were introduced for the position of the provincial governor from the 2019 elections and for the positions of district administrators from the 2024 elections. However, the 2019 election was won by Frelimo candidates in all provinces, including those that had historically been Renamo's ground.

Leaving aside the results of the most recent elections, it was clear that both the ruling and opposition parties had turned their attention to the rural areas, initially to ensure electoral victory. Later, the possibility of resource exploitation emerged, to seize official powers to control tax revenues, as well as having the political and economic interests in mind for the personal investments of the leading figures of each party. In the next section, the chapter examines how land law operates at the sites of land resource management, where political and economic interests are manifested in the manners described above.

### **4 The Site of the Implementation of Land Law**

This section examines two cases of land disputes in different villages in the areas of Monapo and Itoculo in the district of Monapo in the province of Nampula. The data are based on collective and individual interviews carried out during fieldwork in August 2016 and September 2019, except as noted in the sources. It focuses on the Monapo District from a socio-economic and political perspective. Economically, Monapo attracts FDI, as well as domestic investment, faces more requirements for its land resource management, as it is located on the first-grade trunk road of the Nacala Development Corridor, which extends from the Port of Nacala, one of the deepest ports in east Africa, and serves as a gateway to Malawi and Zambia, landlocked countries of the interior (Fig. 4). Politically, Monapo is embedded in an area of significant competition between Frelimo and Renamo.

### *4.1 Social Structure and Changing Land Use*

Makua-speaking ethnic groups dominate in Nampula Province and, under their customary law, the lineage-based chief *muene*, whose status of *muene* follows the maternal line, handles land delimitation, distribution, and conflicts, as well as resolving family matters, such as divorce and other ceremonies. *Muene* is different from the *régulo*, first appointed by the colonial administration and converted to a

**Fig. 4** Map of Monapo District

member of the communal authority in the consultative council. In 2005, the Ministry of Home Affairs put together a list of names of those belonging to the communal authorities of Monapo, following the establishment of the communal authorities in 2000 and the consultative council in 2003, and the provision of salaries in 2005. The Ministry of Home Affairs recognised 42 people as traditional authorities, comprising part of the communal authorities. Of those 42, 32 were registered as *régulo*s and two as *rainha*s (queen). The latter may be a female *muene,* but, if so, they remain a minority among communal authorities.

The role of *régulo* in today's rural society can be seen in two ways in relation to land use. The first is the allocation of common land to members of the community; the other is the mobilisation of the labour of the members of the community. The mobilisation of labour works in the same way as the political mobilisation described in Sect. 2, where the revival of traditional authority worked effectively to attract votes in elections. Agricultural companies today use the same methods of labour mobilisation and production management, with *régulo*s as intermediaries, just as the colonial governments did. With each change in political regime, from the colonial to the socialist and then to the democratic era, the legal entities of actors in production management have changed from state-owned enterprises to private enterprises, but the method of management on the production level through *régulo*s remains the same (Pitcher 1998; Dinerman 2001).

### *4.2 Political Dynamics Over Benefit Distribution*

Obarrio (2018) conducted fieldwork around nearby areas in Nampula Province just before the 2004 general election, drawing on the political considerations between local influential people, including traditional authorities and government officials. However, tensions between people and their interest in land resources have intensified significantly since then, as we saw in the second section of this chapter, to the extent that the situation in 2004 seems almost idyllic. These tensions have been exacerbated by successive elections under an increasingly authoritarian regime.

The Monapo District is composed of three areas, Monapo, Itoculo, and Netia, and there are several villages in each area. In Monapo District, as shown in Table 1, in the first general election in 1994, Frelimo received only 22.5% of the vote, with Renamo receiving 55.7%. Monapo was a Renamo power base until 2009, when it was won by that party until the fourth general election in 2009. However, the political arena has recently become unstable, as armed clashes between the military wing of Renamo and the government sporadically occurred here and in surrounding districts from 2012 to 2017, including the period of this fieldwork.

The procedure for obtaining DUAT proceeds as follows. If someone is applying for a DUAT, the applicant must first check with the community concerned and delimit the parcel of land for which the one is applying. The Land Law Regulations of 1998 require private investor applicants to identify the applicable land and present a written statement with a map approved by the administrative body, registration body, and local community. A written statement requires the inclusion of the history, culture, social structure, practical use of land and other natural resources, and the mechanism for advisory and conflict resolution. The process of elaborating the written statement again requires the participation of the local population, with their gender, age, and other attributes. Similar to community consultations, the application documents require a minimum of three and a maximum of nine signatures by members of the community or representatives who are the communal authorities. Community consultation follows the delimitation; this community consultation aims to obtain information about the merits and demerits of the transference of usufruct for the people affected and to hear their opinions.

However, communal authority and the consultative council itself are cogs in a highly centralised organisational machine, under the appointment of administrative superiors. In the Mozambican administration until 2018, the president appointed both the Minister of Home Affairs and the provincial governors. Then, the Minister of Home Affairs appointed the district governors and the chiefs of the administrative post, under the advice of the provincial governor. The provincial governor also appointed the village chiefs, under the advice of the district governor. The Mozambican administration, at its lowest levels, is characterised by the ease of influence from political antagonism at the central level because of the involvement of the *régulo* and the set-up of the consultative council. In sum, Frelimo's governance has a strong tendency towards centralisation, with a decentralised appearance through its power of setting up decision-making bodies in rural governance.

Within the Monapo District, the study selected two villages to be examined from a comparative perspective, which had a political difference in the affiliation of *régulo* in the consultative council. The *régulo*s of Village A in the administrative post of Monapo and Village B in the administrative post of Itoculo are sharply distinguished by political party, while both villages received agricultural investment from the private South African Company X. The *régulo* of Village A supports Frelimo, while the *régulo* of Village B supports Renamo. The difference in the political affiliation of the *régulo*s in these villages attracted the attention of this study, as the influence of political affiliation on community consultation provides an interesting comparison. The *régulo* OM of Village A was registered by the district office in 2002, while the *régulo* JJ of Village B was registered in 2004. Both names are printed in the communal (traditional) authority list in a report on district regional development published by the Ministry of Home Affairs in 2005. In the following sections, the behaviour of the village administration and residents is examined with regard to the acquisition of DUAT by Company X in both villages.

### *4.3 Case 1: Temptation of pro-Frelimo régulo*

This subsection examines the case of Village A, in which the consultation of the local population, as required by the Land Law Regulations, was not carried out in accordance with the correct procedure because of the takeover of the pro-Frelimo *régulo* by the administration and investor.

Company X acquired a DUAT in 2013 for part of this cotton cultivation area in Village A and first produced soybeans on 450 ha, but then changed to plant cashews in 2016. It planned to expand its cultivation area to 2000 ha; however, in late 2016, it abandoned its plans due to the resistance of the residents of Village A and was cultivating only about 120 ha.

The acquisition of the DUAT by Company X is considered inappropriate for the following reasons. At the early stages of the acquisition of the DUAT, it was deemed necessary to carry out local community consultations to agree on the future use of the land, which at least three and a maximum of nine community representatives would sign. However, Company X invited only three representatives of the community, including *régulo* OM, to a closed-door community consultation to sign the agreement acquiring the DUAT. The district administration and Company X did not inform the residents of the community consultation, neither beforehand nor afterwards; thus, most residents only learned of the acquisition of the DUAT by Company X when the soil was being prepared for planting. The land in question is in a corner of the cotton cultivation area, and those who had been cultivating in the area left. However, in August 2015, Company X began to expand its area into space where 30- to 50 year-old cashew trees stood. Because of these trees, the local peasants recognised the land as customarily belonging to them (Strasberg and Kloeck-Jenson 2002), so, naturally, the owners of the trees protested the expansion. Nevertheless, Company X ignored their protests and expanded its area of production. All the facilities are fenced off, and the productive cashew trees remain within the fence, in a place off-limits to persons unauthorised by the company.

Due to this coercive expansion without local consultation, residents of Village A concluded that the three representatives of their community, including *régulo* OM, were bribed by Company X. As described above, the *régulo* is recognised as the key person in the community for the management of land resources by outsiders, whether this concerns cotton production areas or customary land. To protest, residents with fields in the area under question appealed to the district administration and the company through the peasants' union, religious organisations, and civil society organisations. However, because the district administration itself had approved of the DUAT applied for by Company X, the situation did not improve. The residents then petitioned the provincial government and the expansion ceased; however, the DUAT was not cancelled.

The villagers' movement not only halted expansion, but also affected village governance. As a result of the petition and once the provincial government learned the details of what had happened, OM was dismissed. During this time, the community leader of Village A was not invited to the community consultation, nor was he given information on the acquisition of the DUAT by Company X through administrative channels. This may be because he was one of those with a field in the area in question. The dismissed *régulo* and the community leader were close in their positions in village governance. Both were supporters of Frelimo, and they aligned politically, but they did not share information. As a result, the community leader participated in the protest movement.

### *4.4 Case 2: Exclusion of pro-Renamo régulo*

This subsection examines the case of Village B, in which the administration did not follow the correct procedure of consultation with the local population as required by the Land Law Regulation to exclude the pro-Renamo *régulo*.

The *régulo* JJ of Village B was approved by the district administration in 2004 and was then registered in the Minister of Home Affairs' list, published in 2005. This *régulo* JJ was a Renamo supporter and died in 2015. His successor is a Frelimo supporter. Besides the *régulo*, Village B has a community leader who worked elsewhere as mobilised personnel for the Frelimo organisation *Grupos Dinamizadores* (Activating Group) during the socialist period and was only assigned to Village B in 1997 by Frelimo. The position was officially made part of village governance with the establishment of the consultative council in 2003.

Village B had previous experience with a DUAT, when the Dubai Company Y applied for the cotton cultivation area in around 2000. At that time, Company Y met with some male residents and acquired their signatures and agreement for the DUAT without any dispute. Company Y followed the old procedure, which did not require community consultation with the cooperation of the consultative council, which was only established in 2003. Between 2000 and 2001, the company produced lentil peas on 435 ha, employing residents, but it halted production due to a bad harvest and did not use the land subsequently.

Company X, the same company that had sparked protests in Village A, acquired a DUAT for 450 ha in the cotton cultivation area, with a plan to expand to 800 ha. Company X was expected to increase its land into Village B between 2013 and 2015, at which point community consultation was required, with the cooperation of the consultative council. However, Village B residents only learned of the actions of Company X when their neighbours in Village C informed them that the company had begun digging for a water supply. The residents of Village B, including *régulo* JJ, were not informed of the activities of Company X on their territory. Company X acquired its DUAT using an inadequate procedure; the company had not held its community consultation with Village B, the area named in the DUAT, but by soliciting signatures from the neighbouring Village C. After determining that Company X did not follow proper procedures, the residents of Village B protested the district administration through the peasants' union, which also supported the protests of Village A. A trace of the digging, but no land preparation, remained at the time of the fieldwork in 2016.

### *4.5 Impact of Political Intervention on Village Governance*

This subsection draws out the implications of the comparison between the two above cases. Regardless of whether there is antagonism within the consultative council, the pro-Frelimo administration negatively influenced the implementation of the land law. What is more important is its applied logic. The district administrative body and the consultative council are highly politicised in favour of the party in power, so that, in the case of Village A, with a pro-Frelimo *régulo*, the consultative council suppressed the objections itself, while in Village B, the administrative body rejected opening the route for any kind of benefit to the pro-Renamo component.

These land disputes provide us with three points for consideration. The first point is the district administration's lack of neutrality. According to the Land Law of 1997, when the land size marked out in a DUAT application in a rural area is less than 1000 ha, the district administration should play the role of mediator between the applicant and the community and mediate the issue of the distribution of benefits generated from land resources and their management. The access route to the management of resources should be equally open to all the communities concerned. However, in practice, the district administration opened the route only to selected residents of Village A; it did not open it to residents of Village B. One reason for this may be the political position of the pro-Renamo *régulo* of Village B, who plays a crucial role in the handling of customary law over land resources. This element should not be overlooked, especially for the clashes between Renamo's military wing and national forces in rural areas, including Nampula, from 2012 to the present. This shows that the substantial given-party-centred centralisation goes deep into village government and makes administrative bodies supportive of certain parties.

The second point is the representation of the *régulo* in village governance. In the case of Village A, the route to access the distribution of benefits was set, and the minimum number of people required to sign a DUAT application accessed the route behind closed doors. The people using this limited route, including the pro-Frelimo *régulo* OM, did not represent the interests of the community. Their judgement for the DUAT application was not based on customary law, although in the Land Law of 1997, the *régulo* is given legitimacy as an executor of customary law. In Village A, the pro-Frelimo *régulo* did not fulfil this mission, but sought personal benefit instead, abusing the position as an executor of customary law. The introduction of customary law into the Land Law of 1997 did not simply bring about the protection of customary law, but also created a new political link between rural communities and politically biased administrations.

The third point is related to Frelimo's intention, as seen in the relationship between the *régulo* and the community leader. The mobilising power of the community leader of Village A, whose *régulo* was pro-Frelimo, was weak, while that of the community leader of Village B, whose *régulo* was pro-Renamo, was strong. The community leader of Village B did not come from this community, but was relocated from elsewhere in 1997, just before the first local elections in 1998. The assignment of active personnel in Village B represented a positive strategy taken by Frelimo, intending to obtain support in a Renamo-dominant area and competing with a pro-Renamo *régulo*. Legal recognition by the state in 2000 of the community leader and *régulo* as members of the communal authority and the payment of a salary was added to motivate them and reward their contribution to increasing Frelimo's support. Both are components of the consultative council for the implementation of the land law.

As mentioned above, in today's Mozambique, district administrations are not always neutral, and they work in favour of the ruling party. Besides, although the position of the traditional authorities represents the community, their behaviour is not necessarily representative of the community; it may instead be for individual interests, which in some cases have been encouraged by the administrative bodies, which are politically biased. Furthermore, the ruling party has been increasingly influential in rural governance since independence and continues to be so today.

So, summarising the above three points in the context of land law reform in Mozambique, it can be said that the philosophy of land law in Mozambique was not free from the interests of party politics in the country. The philosophy was to protect the common resources of rural areas by establishing usufructuary rights and recognising customary law. At the same time, it was to make land usufructs tradable, thus commodifying land resources and attracting capital. However, the ruling party has gained increasing influence in rural governance. What we can observe in present-day Mozambique's political environment is a situation where the administration, lacking neutrality, uses the operation of the law as a tool for political profit distribution.

### **5 Conclusion**

Since the mid-1980s, the Frelimo government pursued the land law reform presented by donors at the end of the Cold War in exchange for economic support, in line with the wishes of donors and aid agencies. The law was highly praised nationally and internationally on its enactment, as it progressively adopted customary laws. It was elaborated through public hearings and discussions that were open to the entire country. There was an atmosphere full of promise that seemed to embody the building of a democratic society after the end of the civil war.

However, the Frelimo government has not only responded to the demands of donors and aid agencies for institutional design. The government is trying to promote more centralised governance through rural land resource management. When it comes to implementing these policies and institutions, domestic politics often influences practices, and the policies implemented with external funding are themselves used as political resources by the ruling party and present a very narrow, profitdriven administration by the Frelimo regime to strengthen its support base from the democratisation of the 1990s. In addition, the discovery of promising natural resources in the countryside in the 2000s has led to a growing interest in local governance by the central government. Correspondingly, Frelimo has designed a new system of local governance to put members of the Frelimo party through elections into the positions of the provincial governor and district administrator.

The Mozambican Land Law of 1997 is not free from these political influences. Although the 1997 Land Law was drafted in line with international legal support, it is often used politically as a means of profit-sharing to broaden Frelimo's political base. The top-down chain of command created by the Frelimo government easily spread antagonism, formerly confined to the central level, to the villages. Considering Frelimo's intention, it is rarely claimed that the enforcement of competence for rural land is a way to protect communal land; rather, it destabilises their land usufruct, radicalises political antagonism at the local level, and promotes local antagonism that has its origin at the central level.

When the state awards recognition of what already possesses social legitimacy, the assessment of the state among its citizens generally improves. However, in the case of Mozambique, as the state politicised the social legitimacy of customary law, social dissatisfaction is only increasing, and the assessment of the state has worsened. This has been a major element destabilising this country in recent years in several places, principally targeting the state under the Frelimo regime, including the military attacks by Renamo's military wing in the central region and the acts of terrorism committed by Islamic extremists in the northern region surrounding the world's leading natural gas development area.

In 2017, on the 20th anniversary of the implementation of the 1997 Land Act, the Frelimo government launched a series of public hearings to review it. The government then proceeded, in July 2020, to launch a public consultation process on the review of the National Land Policy, published in 1995, under the assistance of the technical commission for the elaboration of new national land policy. The commission is composed of ten professionals, including jurists, sociologists, architects, and social activists under coordination with the consultant of the FAO (Carta de Moçambique, 2020). Given the recent trends of land reform in Mozambique and the political environment surrounding it that have been examined in this chapter, it is predictable that the new land policy will become even more market economy-oriented as a justification for the progress of land registration in rural areas. However, as we have seen in this chapter, it is the political environment surrounding those who administer the law, rather than the law itself, which causes problems that arise around land resource management in Mozambique.

**Acknowledgements** Research for this paper was funded by the Grant-in-Aid for Scientific Research (B) ('Resource Management and Political Power in Rural Africa' Project Number: 18H03439) and a series of workshops in Pretoria, South Africa, in 2018 and 2020 in Huye, Rwanda, organised by the African Study Centre of Tokyo University of Foreign Studies.

### **References**

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# **Land Law Reform and Complex State-Building Process in Rwanda**

**Shinichi Takeuchi and Jean Marara**

**Abstract** This study sheds light on recent land law (land tenure) reform in Rwanda by examining its close and complex relations with state-building. By prioritising land law reform and receiving strong support from external funding agencies, the post-civil war Rwanda became the first African country to complete land registration throughout its territory. Land law reform should be considered a part of the radical interventions in rural areas frequently implemented by the Rwandan Patriotic Frontled government and, therefore, has been closely connected to its aspiration to reinforce the existent political order. The government has utilised reform and external financial support for this purpose. However, despite the success of the one-time land registration, Rwanda has encountered serious difficulties in institutionalising sustainable registering systems since transactions of land have been recorded only in exceptional cases. Additionally, it suggests that the government does not have a strong incentive to collect accurate information about properties in rural areas. The widening gap between recorded information and the real situation may affect land administration, which is of tremendous importance to Rwanda and, thus, possibly undermine state control over society.

**Keywords** Land registration · Rwanda · State-building · Land law reform

### **1 Introduction**

As proposed in Chap. "Introduction: Drastic Rural Changes in the Age of Land Reform", recent land law (land tenure) reforms in Africa have had important and complex implications on politics and state-building. Rwanda is a representative case, as the country has utilised land law reform to consolidate the existent political order. The Rwandan Patriotic Front (RPF), which was a former rebel group and seized

S. Takeuchi (B)

African Studies Center, Tokyo University of Foreign Studies, Fuchu, Japan e-mail<EMAIL_ADDRESS>
J. Marara Institut Catholique de Kabgayi, Muhanga, Rwanda

power by winning the civil war in 1994, undertook land law reform to strengthen its authority and control over society. Considering the Rwandan case study, this chapter indicates how the RPF-led government consolidated the political order through land intervention. Simultaneously, it also argues that the state-building process has never been simple.

With its origin tracing back to the precolonial kingdom, Rwanda has a long history of land intervention by the state. The precolonial state-building of the kingdom of Rwanda (Nyiginya) included land dominance by the king's families and the ruling class, which was mainly Tutsi (Vansina 2001). In the colonial period, chiefs and sub-chiefs, who were simultaneously landlords and officials of the colonial administration, attempted to expand their influence by providing land to their clients, thereby increasing competition and conflicts over land (Reisdorff 1952). Following the breakdown of chieftaincy during independence (Lemarchand 1970; Reyntjens 1985), the country was deprived of strong and autonomous local communities, thus accelerating state intervention in rural areas. Strong control of the political elites over rural societies explains in part the genocides in 1994 (Straus 2006). Since the power seizure by the RPF, the range and extent of such policy interventions in rural areas have significantly increased. Subsequently, land law reform has been an important component of these reforms. Due to this reform, which had strong financial support from donors, Rwanda became the first African country to complete land registration throughout its territory.

Although land registration in Rwanda has attracted considerable attention, assessments of its effects on land tenure security have been divided among researchers. World Bank researchers presented that land registration has enhanced the access of women (particularly legally married women) to land, thereby contributing to gender equality (Ali et al. 2014, 2017). The positive effects of land registration on gender equality were also confirmed by another study that analysed NGO projects (Santos et al. 2014). Conversely, other researchers have been sceptical and pessimistic on Rwanda's land law reform and the effects of land registration to secure the land rights of tillers (Pottier 2006; Ansoms 2008; Pritchard 2013; Ansoms et al. 2014; Huggins 2017). They argued that Rwanda's authoritarian policy implementation would have a negative impact on the security of property rights.

The following sections reveal that since the power seizure in 1994, the RPF-led government implemented multiple radical policy measures on land. These measures have not only drastically changed Rwandan rural society, but have also strengthened government control over land and society. The land law reform that was initiated in the mid-2000s has been a part of a series of radical interventions, through which efforts for state-building were undertaken.

However, the results have been diverse. This is particularly salient regarding land registration. Since it was strongly emphasised in the national land policy in 2004 (Republic of Rwanda 2004), land registration has been a top priority of the reform that was successfully completed by the country throughout its territory in 2013. However, the register has been updated only in exceptional cases of land transactions, including selling, purchasing, and inheritance, especially in rural areas. Consequently, the gap between the official information on the register and the real situation has been increasingly widening. Although the country successfully implemented a big project of one-time land registration, it faced serious difficulties in constructing an institution for its sustainable management. What are the reasons for this stark contrast and what are its implications for Rwandan state-building? The present chapter attempts to answer these questions.

The remainder of this chapter is organised as follows. Following a brief explanation of the methodology, a rough historical overview of the relationship between land and state-building in Rwanda is provided before presenting a detailed explanation of Rwanda's land law reform. Later, policy interventions in rural areas under the RPFled government are examined to investigate its motivations for undertaking land law reform. Finally, the successes and setbacks of the land registration are illuminated to explore its implications.

### **2 Methodology**

This study is based on multiple literature surveys and field observations of the authors. One of the two authors (Marara) observed Rwanda daily, while the other author (Takeuchi) visited the country for the first time in 1998, and launched collaborative research with Marara, focusing on two rural communities in Southern and Eastern Provinces. After conducting a socio-economic questionnaire survey for approximately 100 households in each community (Takeuchi and Marara 2000), 25 inhabitants (respondents of the former survey) from each community were selected for conducting interviews through semi-structured questionnaires. However, the death of some respondents and addition of new respondents in accordance with our research aims changed the number of interviewees.While such interviews sometimes included administrative officers and leaders of cooperatives, unofficial discussions and observations in the communities were frequent in multiple cases. This constituted indispensable background information for understanding the perspectives of people to the policy reforms.

### **3 The Rwandan State and Land Before the Civil War**

The origin of the precolonial kingdom of Rwanda can be traced back to the seventeenth century, and its state formation process was characterised by the expansion and the strengthening of control over land. In the early nineteenth century, the ruling class of the kingdom (majorly Tutsi), which was mainly dependent on pastoralism, began to subjugate peasants (majorly Hutu) by imposing tributes based on land control (Vansina 2001). This Tutsi–Hutu division gradually widened and was institutionalised during the colonial period. Under indirect rule, the king's power was reinforced by the support of the colonial authority. During political stabilisation, the chiefs and sub-chiefs, who were overwhelmingly Tutsi, actively provided land to their clients to seek their dominance (Reisdorff 1952). Therefore, in the state-formation process of the kingdom, intervention in land constituted an essential part.

Traditional Tutsi leaders, such as kings, chiefs, and sub-chiefs, who had once monopolised political power in the colonial period, had completely lost their influence following the social revolution, which started in 1959 (Lemarchand 1970; Reyntjens 1985). The kingdom collapsed and the Hutu-led party, PARMEHUTU (*Parti du mouvement de l'émancipation Hutu*), seized power. Because of this political development, Hutu lower officials actively intervened in rural lands. Appointed by the ruling parties, the PARMEHUTU and the MRND (*Mouvement républicain national pour le développement*) under the Kayibanda (1962–1973) and Habyarimana (1973– 1994) regimes, respectively, often reallocated the land left by Tutsis who had fled from Rwanda for the sake of poor landless Hutu farmers (André and Lavigne Delville 1998).

During this period, Rwanda's population density was already high, thus, causing land scarcity and de facto privatisation (Blarel 1994). However, similar to other African countries, the Rwandan state attempted to strengthen its control over customary land by claiming its official property rights. Additionally, it banned the trade of customary land, although such deals were widely practised unofficially (André 2003).Whereas this incident demonstrated the weak implementation capacity of the government, the absence of chieftaincy facilitated the government to implement policy interventions in rural areas. In fact, Rwanda has witnessed multiple state-led rural development projects during this period(Boone 2014, 229–252).

### **4 Land Law Reform in Rwanda**

The 2004 land policy marked the beginning of the recent land law reform in Rwanda. The new constitution was ratified in 2003, nine years after the end of the civil war. The adoption of the new land policy in the year following the promulgation of the constitution indicated that land was one of the most urgent priorities for the RPF-led government. A keen sense of crisis regarding land and agriculture characterised the 2004 land policy. During its introduction, nine 'obstacles' hindering 'the efficient management of land in Rwanda' were pointed out: rapid population growth, low technological use in agriculture, customary land tenure system, multiple landless people, scattered farming plots, lack of a land registration system, absence of landuse planning, chaotic land transactions, and unplanned use of marshlands (Republic of Rwanda 2004, 5). Among these, the first five 'obstacles' could be interpreted as the causes of the crisis, and the last four as possible solutions. To summarise, to tackle Rwanda's structural problems, including population pressure, land scarcity, and land fragmentation, the policy proposed enhancing efficient land use through the development of the land market. Additionally, land registration and land-use planning were prerequisites for this purpose.

The necessity of land registration was frequently emphasised in the 2004 land policy. One of its key concepts was 'land administration', which was defined as 'the process of registration and dissemination of information in relation to land titles and all sorts of land transaction, as well as the use of land-linked natural resources' (Republic of Rwanda 2004, 30). The policy argued that good 'land administration' secured land rights, levied land tax, provided collaterals, activated land transaction, reduced land conflicts, and improved infrastructure development. Emphasised as a central piece of the 'land administration', land registration was prioritised in the 2004 land policy.

The 2005 land law, which was designed based on the 2004 land policy, provided policy frameworks not only for land, but also for agriculture and rural development. Although it covers a wide range of policy areas, the following three points are particularly important and deserve to be mentioned.

First, the law recognised customary rights by committing to protect 'equally the rights over the land acquired from custom and the rights acquired from written law' (article 7). Although private use of customary lands was generally practised even before the enactment of the 2005 land law, this had no legal framework. The 2005 land law officially recognised customary rights as grounds for registration. Second, land registration was mandatory (article 30). This provision clearly corresponded to the 2004 land policy. Third, the law introduced various measures to enhance the efficiency of land use. By compelling landowners and land users 'to obey laws and regulations relating to protection, conservation and better exploitation of the land' (article 60), the law authorises the government to requisition the land that is not 'well managed and productively exploited' (article 73). Similarly, to improve rural land productivity, the law promoted the 'consolidation of small plots of land', prohibited 'to reduce the parcel of land reserved for agriculture of one or less than a hectare' (article 20), and obliged to make 'the area's master plan' (artcle 63). These regulations aim at boosting land productivity through putting together small plots, avoiding land fragmentation, and controlling the land use.