Julia Eckert, Georg Elwert (1996):
Land Tenure in Uzbekistan

1.2 Problematic laws

Some of the laws are specifically noteworthy, since they might pose problems for the success of the land reform, namely the decree no. 13 about the efficient usage of land and the decree no. 87. Since the decree no. 87 was ratified in February 1994 the ownership of 30 units of live stock are the prerequisite to be registered as a private farmer and obtain land sufficient for full-time private farming. Subsidised credit and other support programmes for private farmers are also restricted to owners of that number of live stock. Farmers with fewer animals do not count as private farmers and can not profit from subsidies. [FN 7] Against the expressed wish of the government this decree leads to a stagnation in the number of new private farms, since smallholders cannot find support to expand their farms in order to become full-time private farmers, which then again would entitle them to further subsidies.

The decree might aim at preventing the splitting up of land into plots too small for efficient usage. F. Kayumov, Director of the Agricultural Economy Institute at the Academy of Agriculture warns that there are only 0.7 ha land per head in Uzbekistan. [FN 8] There are enormous regional differences, though. While in Karakalpakistan there are large areas of uncultivated land, in the Ferghana valley less than 1 ha would be available to each farmer. [FN 9] The government aims at reducing the number of people working in agriculture from 40% to about 5 - 10 % of the workforce by stimulating small enterprises especially in rural areas. At the same time it reduces the possibilities to become a private farmer through the law mentioned above.

What constitutes the minimum size plot for efficient farming in Uzbekistan has not been established. Even very small size farms can produce full time farmers; the productivity of the garden plots indicate a high potential and farmers may make their living with less than 1 ha. under conditions of intensive horticulture (possibly including not only irrigation, but also greenhouses.) [FN 10] Moreover, the situation in Uzbekistan is not one of too many smallholders producing too little on too small plots, but rather a stagnation of the transformation of largescale kolkhoz farming into smaller scale private farming, which even in the Uzbek experience is about 15 times more productive. [FN 11] The sharing out of kolkhoz land to tenants in the Shirkatsystem or through shareholding is, at the moment at least, no alternative, since the tenants do not, in reality, operate as independent farmers. (See chapter 2.3 on Shirkat-lease) [FN 12] Therefore the decree might inhibit the development of the potential productivity.

The decree no. 13 allows the dispossession of land if it is used inefficiently. Agricultural land can not be used as building site and if land lies waste for over a year it will be confiscated. On first sight, this seems sensible and farsighted. Misuse as well as destructive exploitation of the land can be countered. Speculation is obviated (although one year of disuse is a period long enough for speculation) as well as the amassing of real estate inhibited.

If a farmer has only agricultural land but agriculture cannot serve as his only source of income, his initiative to found a small enterprise on the land to support his earnings is severely discouraged if he has to fear that he will be disowned. The decree indirectly contradicts the explicit goal of the government to stimulate small enterprise in rural areas.

Similarly, situations in which land lies waste have to be carefully differentiated. If land lies unused it is often due to crisis in families like death or illness. If then the land is taken away from the family, invalids, widows or orphans might be the ones who suffer.

Moreover, the decree is open to abuse: The definition of what is efficient and what is not, is not made explicit in the decree and therefore it is relatively open to interpretation. In Mali a similar law was introduced. Very soon it became clear, that efficiency was defined according to the interests of the administration.** Even productive farmers were disowned, especially as their productive plots stirred the envy of the administration and the interest of rival farmers who would pay corruption fees.

This development could be prevented if misuse or destructive usage of land were regulated in specific laws.

Moreover, in Uzbekistan the same institutions distribute the land, judge whether land is efficiently used and investigate if a farmer felt unjustly treated. The Hokhimiat, the Association of Dehkhanfarmers and the prosecuter decide, whether land is efficiently used. These same institutions would be in charge if the farmer wanted to file a complaint against their decision. This represents a lack of separation of powers.

So far no cases have been reported of land being withdrawn because of inefficient usage. This might be due to the fact that the criteria for obtaining private land are strict. Those few who have obtained a lease were in advance judged according to their past efficiency and productivity. Inefficient usage was, thus, excluded right from the start.

The structures of decision making in the Uzbek society as well as the possibilities of objection make it unlikely that a decision will be revised. Firstly, there is little trust in the power of conflict resolution in the legal institutions. (See chapter IV. on Dispute settlement and Corruption) Secondly, decisions are often taken in accordance with their probable success, since "wrong decisions" amounted to failures and could in Soviet times endanger the career of the decision maker. To calculate the success of a ruling and to avoid decisions which might be revised has become routine.

On first sight this seems a convincing proof that law is governing the privatisation of land and that legal action is accessible and can be successful. On second sight the punishing measure for the decision makers seems rather drastic. Such drastic punishments for wrong decisions will probably lead to two reactions on the side of the administration:

1. The local administration will try to avoid taking wrong decisions. It will maybe try to avoid decision making altogether and just follow the orders from above. In the case of vague orders, it will try to make its own decisions look like what it thinks is wanted above. This leads to the distortion of information typical for the plan-fulfillment: The top will only hear what the bottom thinks the top wants to hear.

In the long run this creates a further problem: The bottleneck-phenomenon. Subordinate decision-makers will transfer all decisions to their superiors, who in turn will send the decision up the hierarchical ladder until all decision-making is delegated to the top. In the same way, all complaints will be handed on to the very top. The top will have to deal with an overload of decisions which go beyond its information capacity. Thus decisions will not be taken at all.

The option of delaying or refusing a decision will be an additional hindrance in implementing the reform.

2. The local administration will in the face of drastic punishment for any misjudgement above all try to prevent complaints from reaching higher institutions or becoming public. It will take all measures to suppress complaints. This will have an impact mainly on those who have no access to legal institutions or other means of exerting pressure. Adverse decisions will not be taken against powerful individuals who would be able to support their complaint.

Therefore the drastic punishment of the local executive which lacks proportionality and violates the principle of commensurability indirectly leads to an inequality in legal rights and eventually to the disuse of legal institutions: adverse decisions will only be taken against people with no access to legal aid or other channels of protest. People who have access to legal channels will not be forced to use them since no adverse decisions will be taken against them. Their social standing will be enough to protect them. Legal institutions will, therefore, lose their significance and the law will be taken outside legal channels.

The lack of separation of power, the lack of proportionality in the punishment for misjudgements on the side of the administration and the bottleneck- problem are responsible for the rule of the ones in power becoming law. This process is yet another road to undermine the constitutional state and establish alternative institutions of securing ones rights. Social relations and local power will be decisive factors in a persons chances of obtaining their rights.

To prevent this development two aspects have to be encompassed in the legal framework. First and above all a strict separation of powers has to be institutionalised. So far the separation of powers is not even included in the design of the institutional responsibilities. To have a clear definition and distribution of responsibilities is a first step towards achieving the separation of powers. It is necessary but not sufficient. Institutionalisation demands resonance and practice in the population. Second, though, the principle of commensurability of sentences and, of course, the advance notice of the precise punishment to be expected in the case of misjudgement has to be anchored in the law. [FN 14]