Gregory Myers, (1995):
Land Tenure Development in Mozambique, Implications for Econimic Development

Executive Summary

A. Research Methodology

Material for this report was drawn from field work conducted in Mozambique between 1991 and 1994. [FN 1] This earlier research was funded by USAID / Mozambique's Private Sector Support Technical Assistance Project. A case study methodology was employed. Male and female smallholders, commercial farmers, and government officials were interviewed in eight provinces.[FN 2] In all, more than 600 people were interviewed. Additional material was drawn from a variety of source in the private sector, donor and NGO community, various levels of government, and the University of Eduardo Mondlane. This research focused on developing a broad, historical picture of land tenure, land access and local control or authority over land and natural resources in a variety of geographical and political-economic settings. An understanding of the transformation of tenure institutions and political power from independence to the postwar period was central to the investigation.

Information and data was gathered in two phases. First, the formal laws, regulations and administrative structures for land acquisition and conflict resolution were reviewed. Data was gathered on land concessions, distributions, state divestitures, populations movements during and after the war, and capital investments in land resources. Policy makers and political actors at the central, provincial, district and local levels of government who have a professional interest in or responsibility for land administration and land policy reform were interviewed. A research protocol was then developed and specific field sites were identified for the second phase of investigation. Selected smallholders and political actors at the local level were interviewed (including indigenous populations, reintegrating refugees, and displaced families), as well as larger commercial farmers. A special effort was made to interview female farmers at each field site. Field research was often presented to government officials for purposes of eliciting their reactions. Given the dynamic political environment in Mozambique, especially in the transition from war to elections (when these studies

were conducted) we employed a case study methodology, which allowed us to modify the research protocol from site to site and time to time depending on specific local conditions and events.

This report for GTZ is based upon field work previously conducted as described as well as on an earlier study of land markets in the peri-urban green zones of Maputo province. It also draws upon new data gathered this year focusing on political and policy debates within the government of Mozambique in the post-election period, a new analysis of the Municipalities Law, and an in-depth investigation of relevant NGOs operating in this sector in Mozambique. We also draw upon recent interviews with other academics as well as donor organizations in Maputo.

The terms "customary" and "smallholder" are utilized throughout this report. Customary denotes political, legal, and cultural institutions which Mozambicans use at the local level. These institutions give meaning to, shape, and regulate people's lives. Their meaning derives from the fact that they are perceived to be historically rooted. At the same time, however, rather than being reified static structures, these customary rules and institutions demonstrate some dynamism as Mozambicans adapt their social practices to political and economic changes and influences which affect their communities or the country as a whole.

In the report we also distinguish between "smallholders" and "larger commercial farmers" to denote two broad economic categories of farmers. We use the terms in place of the Frelimo government's preferred terminology, "family sector" and "private sector." We feel that the government's terms run the risk of creating an erroneous perception that smallholders are simply concerned with subsistence production and that market incentives would therefore have a marginal effect on their productivity.

B. Land Policy and Agrarian Programs in Post-Independence Mozambique

Mozambique, according to the World Bank, remains the poorest country in the world, with a GNP per capita of US$80 and an estimated sixty to seventy percent of rural households falling below the poverty line. The country's poor economic performance since achieving independence in 1975 can be attributed to a variety of factors. These include the destructive legacies of brutal Portuguese colonial rule, recurrent periods of severe drought, and a devastating war which fragmented political authority, destroyed much of the country's infrastructure, left over one hundred thousand civilians dead, and forced over five million from their homes. Also contributing to the country's poor economic performance and concomitant human misery, however, have been ill-advised government policies in the agrarian sector, especially those regarding land tenure. Indeed, a growing number of bilateral and multilateral donors, Mozambican and international non-governmental organizations (NGOs), and even the government itself have come to recognize that ensuring long-term political stability and achieving economic transformation will be predicated on reforms concerning the nature of property rights as well as the mechanisms for administering and adjudicating disputes over land and natural resources.

Upon assuming power in 1975, the Frelimo government promulgated policies premised on a rigid form of socialism that viewed free markets, international capital, and decentralized control over political and economic resources as incompatible with Frelimo's broader project of constructing an economically advanced and nationally integrated society devoid of social or class-based inequalities. This "hard-line" socialism had a significant impact on the country's land laws and their administration. In particular, the government adopted a constitution and set of land laws (especially the Lei de Terras, 1979; Land Law Regulations,1987) which gave central state officials extensive interventionist authority over land administration; local state officials or customary institutions were granted little formal discretionary authority. The state also outlawed private land rights and regulated the alienation of land and other resources. The basic land tenure right was defined as the right of use and enjoyment (direito de uso e aproveitamento). Thus, the state itself exercised paramount rights over land and had the authority to revoke individual use rights and attribute rights in land to investment and other development projects. While individuals could theoretically transact improvements on their land, formal land markets were not permitted within this socialist structure.

These land policies were coupled with a trio of programs — collectivized farms, villagization, and state farm intervention — designed to rapidly develop the agrarian sector. The state farm sector, in particular, received a disproportionate share of state resources. The state farm sector eventually claimed more than 200 state enterprises that were formally responsible for several million hectares. In 1991, the Land Tenure Center was able to identify only approximately 100 farms which — continued to function, covering between 500,000 and 700,000 hectares. Yet although this figure may seem small, it is important to recognize that these farms often occupied some of the most productive agricultural land in the country. They were also strategically located next to markets and transport arteries, sources of labor, irrigation schemes, and often situated in more secure military zones.

The land policies, in conjunction with the programs within the agrarian sector, produced disastrous economic consequences. The state farms incurred enormous debts. Indeed, at its Fourth Party Congress in 1984, Frelimo itself acknowledged that all of their state farms were operating at a loss. Following the Congress, Frelimo tinkered with the state farms sector in an effort to improve their efficiency and profitability. But by 1989, the government acknowledged the need to restructure the state agricultural sector and privatize, lease, or close many of the farms.

Likewise in the smallholder sector, productivity also diminished considerably. This derived from a variety of factors. The absence of market price incentives led many smallholders to withdraw from the formal economy and engage in subsistence production or exchange their products in the informal sector. Also contributing to a decline in smallholder productivity was the fact that the state farm sector absorbed almost all governmental resources in the agrarian sector, thereby leaving few resources for programs designed to provide agricultural inputs and extension assistance to smallholders. In addition, and perhaps more significantly, because the country's property rights regime granted extraordinary prerogatives to a central government whose official ideology viewed smallholders as backwards ("obscurantist") and economically inefficient, it diminished tenure security many smallholders. Uncertain whether they would be able to use a particular piece of land for an extended period of time, smallholders were less inclined to make long-term investments in or exercise ecologically sound management practices on their land.

The Frelimo government's policies also had deleterious political repercussions. In particular, as the vitality of smallholder land rights eroded and resources were diverted into villagization schemes, state farms, and collectivized farms, smallholders became increasingly alienated from formal state structures. Many communities viewed the agrarian programs as a government "attack" akin to the colonial Portuguese state's efforts to dispossess smallholders of their lands. In addition, the Frelimo government's official hostility towards customary institutions and authorities (regulos) and its attempts to usurp their authority over land distribution and the resolution of land related conflicts fostered even further political disaffection. Coupled with the state's own incapacity to formulate clear land policies and administer them efficiently and transparently through its centralized bureaucratic apparatus, the marginalization of customary authorities has caused many rural inhabitants to view the formal statutory land regime as illegitimate.

Beginning with the Fourth Party Congress in 1984, the ruling Frelimo party began to acknowledge the need for shifting emphasis in agricultural policy away from the state sector and toward more "private" medium and smallholder enterprise. In 1987 the government implemented a structural adjustment program, PRE (Programa de Reabilitação Economica). Subsequent policies have reinforced the move away from state-led development schemes and towards more market-friendly policies. These have included realigning overvalued foreign exchange rates, permitting private commercial bank activity, and improving price incentives for agricultural producers by liberalizing pricing policies and deregulating the exchange of consumer commodities.

Yet macroeconomic political changes alone will not produce fundamental economic transformation. Neither will they reinforce the government's legitimacy and thus, long-term political stability. Indeed, a large body of evidence indicates that the promulgation of market-friendly macroeconomic reforms in the absence of simultaneous reforms in land rights and the mechanisms by which they are administered and adjudicated has exacerbated tenure insecurity, especially among smallholders. Specifically, because land has become more valuable in a context where agricultural producers are more adequately compensated for their products, macroeconomic policy changes have often deepened the insecurity of smallholders whose land may now be the target of domestic and foreign investors or speculators. Indeed, research conducted by the Land Tenure Center on state farm divestiture has demonstrated that the continued system of centralized control over resources, coupled with the lack of any clear procedural guidelines or reforms in land tenure laws, has created a situation in which domestic and foreign investors, former colonial landholders, and many government officials have profited enormously as a result of the slow dismantling of the state agricultural sector the past five years. In addition, the lack of consistency and transparency in the land laws, as well as state officials' significant discretionary authority over land and lack of democratic accountability to societal groups, have contributed to enormous corruption and land grabbing even on land which was not part of state farm sector. In the period between 1992 and 1994, at least 20 million hectares of land has been "acquired" as concessions by private (non-smallholder) farmers or commercial interests, some of whom are highly placed government officials.

C. The Need for Integrated Reforms

This report argues that ameliorating the present dismal state of affairs and improving tenure security for both smallholders as well as larger individuals and corporate entities will be predicated on two sets of fundamental changes in the current land tenure regime. First, the government must alter current land laws for purposes of fostering land markets premised on private property and the ability to alienate these rights through markets. Second, the government should decentralize administrative and adjudicative authority over land and natural resources. Yet the adoption of such reforms will require not only difficult political choices, but a fundamental reexamination of government assumptions concerning the nature of rural society and how best to secure long-term political legitimacy for the state.

Indeed, the Frelimo regime has historically criticized private land rights and land markets for retarding economic growth and generating inequalities. Proscribing private property rights and maintaining state leasehold over land, Frelimo has argued, would give the state the authority to protect the economy from unscrupulous international and domestic entrepreneurs while rationalizing economic activity. Presuming that in a free market smallholders would be unable to manage their own resources and would be likely victims of predatory commercial interests, the state also saw proscriptions on land markets as a means of diminishing smallholder vulnerability.

In practice however, state leasehold has itself significantly compromised smallholder interests and diminished tenure security more generally. Little research has been conducted on how land markets in Mozambique might remedy this situation. It is an issue that clearly warrants further attention. Nevertheless, several studies which have examined unofficial land markets for agricultural land in the periurban and some rural areas of Mozambique indicate that smallholders will actively participate in land markets—treating land as a commodity worth holding, buying, or selling if the price is right—and rationally integrate that activity with other income producing activities such as petty trading or educational investment. The research also suggests, however, that corrupt officials and government policies which proscribe formal exchange of land effectively distort these markets and undermine tenure security. Thus, in the present framework, these nascent markets operate in an environment marked by great uncertainty, a lack of transparency and formal accountability, all of which increases the risks of conflict and land theft while at the same time encouraging speculation rather than productive investment.

Fundamental reforms in the way land and resource rights are administered and adjudicated will therefore need to accompany any changes in the nature of property rights. In particular, control and authority over natural resources and land needs to be decentralized to more local levels of government and customary institutions. Doing so would offer several advantages. First, the government does not have the capacity to administer the formal land tenure system as it is now constituted due to a scarcity of material and human resources within the judiciary and government ministries authorized to administer land issues (for example, DINAGECA). As a result, the official process of land acquisition and registration is cumbersome, time consuming, opaque, and open to abuse and corruption. Decentralization would diminish information-gathering costs and scale back the formal responsibilities of a state ill-equipped to centrally manage all of the country's lands.

Second, decentralization would formally acknowledge and rationalize what has emerged as a de facto reality in many rural areas throughout the country: local municipal authorities and customary officials are effectively administering land and adjudicating conflicts as a result of the central state's insufficient capacity. Indeed, in most regions of the country, the task of administering land issues has proven too difficult for even local-level state institutions to handle, especially in the context of large-scale population movements associated with villagization and then the war with Renamo. Since the war's conclusion, local residents and even local state officials have therefore increasingly relied upon these customary authorities, despite the fact that the latter have no officially sanctioned role in the process of land distribution or dispute resolution. By taking steps to give legal force to processes and transactions enacted through customary institutions — whether dispute resolution, rental or sale of land, or inheritance — the state could provide greater security of tenure for the smallholder sector and reap the economic benefits of a consequent rise in productivity. In addition, by formally incorporating locally-supported individuals and institutions into the state apparatus, the state could deepen its political legitimacy.

The Municipalities Law which the Mozambican parliament promulgated in 1994 is an important and promising step in the direction of decentralization. But the law itself remains unclear, and therefore ineffectual, in two important respects. First, it fails to unambiguously delineate the extent to which power and authorities in respect to different sectors such as education, land, health care, transport and roads will be devolved from the central government to the municipality. Second, it refrains from specifying the taxing authority - and thus, the capacity to develop an independent financial base critical to ensuring a measure of autonomy - of local municipalities.

True decentralization, as well as reforms in the nature of property rights will be a difficult task which demands not only an intellectually-informed reexamination of current laws and policies. It will also require difficult political choices that will inevitably challenge the vital interests of powerful actors that benefit from the current land tenure regime. The debate over the contours of a new land policy and administrative and adjudicating structure will therefore involve a wide variety of political and economic actors within and outside of Mozambique. These include political parties, bureaucrats located at varying levels in the state apparatus, smallholders, international capital, and the international donor community. The report argues that international donors, in particular, must play a critical role in encouraging reforms and pressuring the government to move forward, especially when entrenched interests within or outside of the government attempt to block the reform process.

In addition to working with the government to draw up new laws and policies, these donors, in conjunction with international NGOs, can also accelerate the reform process and ensure that the new land laws will be consistently implemented once formally codified through efforts designed to strengthen groups in civil society. These groups, especially smallholders, can thereupon mobilize to articulate and protect their particular interests and hold state officials more accountable.

D. Recommendations for the Mozambican Government and Civil Society

1. The Government of Mozambique in Maputo should engage in a national discussion regarding land policy reform with other levels of government in the Provincial, District, and locality centers, the University Eduardo Mondlane, the private sector, and other interested groups in civil society including smallholder farmers and commercial agricultural, forestry, mining and tourist interests. This discussion should focus on all aspects of land policy, including legislative, judicial and administrative reform. Questions regarding access and security of tenure rights, alienation, and taxation must be included in this debate. It is imperative that the central government in Maputo allow this discussion to take place before it moves forward with any substantive reforms, otherwise any changes made may not be accepted by the target populations or the national assembly. Changes decided upon in private and decreed from Maputo will create confusion and tension at the local levels, thereupon creating or exacerbating political tensions.

2. Land rights should be denationalized, and customary holdings recognized as secure and as permanent as statutory rights. Customary rights should be free from confiscation from government officials or the state for redistribution to other interests, including commercial and smallholder farmers. Although this is already part of the current land law, it must be strengthened. The way in which smallholders secure their rights must be reviewed and considered as part of the formal process to secure land rights. In other words, if smallholders use informal testimony in disputes to validate their claims, these same procedures and mechanisms should be allowed in any other formal proceedings where smallholders are attempting to either secure or defend their rights.

3. The creation of a secondary-level court or tribunal should be considered. In these forums disputants would be allowed to present either customary (including oral testimony) or statutory evidence to support their claims. Magistrates should be versed in the local laws and customs as well as the statutory laws. Disputes not resolved in these courts should have recourse to a higher, more formalized court system.

4. To balance the needs of the strong and weak (e.g., central or provincial government versus local government and customary authority; the state versus the individual; men versus women; stronger lineages clans or groups versus weaker or disadvantaged segments of society; larger commercial interests versus smallholders) the creation of a land board system should be considered. These boards should correspond to local government jurisdictions or municipalities as articulated in the new Municipalities Law. They should have the power to decide the disposition of land and other natural resources within their jurisdiction, including the alienation of that land. The rights that the board may grant can correspond to the national land law, so that if the law permits only leasehold rights these boards may administer the granting of leaseholds which should be as secure as those granted by the state. The revenue from these grants should be maintained by the local board and used to finance development activities within the jurisdiction. The members of the board should be selected by the local community, using procedures and mechanisms that are relevant to the political structure and custom of that community. If government is concerned that its interests will not be considered or that the interests of disadvantaged groups will not be protected it should consider a system whereby the local community selects a portion of the board and the government selects another portion, preferably from the local community. Government might also consider appointing non-voting advisers to the boards. An educator should be part of the permanent staff to advise and inform local community members of their rights and duties.

5. A national "bill of rights" should be considered which specifically articulates the privileges and obligations of each individual and group. In conjunction with the national discussion, government and civil society should determine the exact powers and responsibilities held by individuals, communities, and the government (including the land boards) at each political level regarding the use, management and exploitation of land an natural resources. The resulting "bill of rights" should include the power to litigate against the state or another party that contravenes the rights expressed in the bill.

6. Strengthen and streamline procedures for securing rights in property, especially the registration process. Decentralize this process so that it begins at the locality level and ends by informing the national government in Maputo where concessions have been granted, to whom and for what period of time. National level approval should not be necessary for receipt of title or registration. The process should be revised so that customary markers or boundaries, if agreed upon by the local community, are legitimate means of demonstrating areas of ownership. The government in Maputo can streamline this process by updating its own registry to help avoid the duplication of concessions.

7. Before any new commercial concessions are granted for either agriculture, forestry or mineral exploration, the government should update its national registry to avoid further duplication of concessions for the same rights or same geographical areas. Government might consider privatizing the national registry, or at least permitting private companies to revise the registry.

8. Flash or rapid registration of smallholder farms in high conflict areas (such as the periurban zones of Maputo Province) should be considered. In areas where there are numerous conflicts among smallholders or between smallholders and more commercial interests, government should consider the rapid registration of holdings to protect the further erosion of rights.

9. New large concessions (such as those considered for Heaven on Earth or the white South African farmers) should not be considered without an open public debate and without local level consensus. Large concessions should, as part of the negotiation process, seek local level approval. Civic groups should consider ways in which these concessions might be "taxed" to fund local development activities.

10. Joint venture operations which control large land holdings should be privatized, and awarded all the duties, responsibilities and privileges held by other private interests. Their operations should be subject to the same control and scrutiny as other private firms. Joint ventures that are not privatized should be open to greater scrutiny as they are permitted greater opportunities because of their privileged relationship to government resources. Their financial records should be public information.

11. To inhibit unproductive land speculation, a land tax should be considered which penalizes large unproductive holdings.

E. Recommendations for International Donors and NGOs

1. International donors should engage in an explicit dialogue designed to exchange information and ideas for purposes of reaching a consensus on necessary reforms in the land laws and mechanisms for administering and adjudicating property. Admittedly, because debate continues among some donors concerning the utility of legalized land markets and the creation of legal freehold property rights, total consensus may prove impossible. Such a dialogue, however, could contribute to more cooperative efforts among donors who may simply disagree on implementation strategies and priorities rather than the contours of what the ultimate land reform package will entail. A coherent policy agenda among donors would simplify the task of the Mozambican government which, at present, is receiving multiple signals and contradictory policy advice from the various donors.

2. In designing either policy recommendations or pilot programs, donors and international NGOs should be careful to match operational requisites to the Mozambican government's limited financial and human resources. For example, registration and titling programs based upon advanced technology, highly trained personnel, and costly maintenance procedures are ill-suited for Mozambique at the present time. Instead, donors and NGOs should design pilot projects and advocate policies which, for example, take advantage of the considerable negotiating and management skills which customary authorities already possess.

3. Donors should devote more resources to capacity-building initiatives within state institutions such as DINAGECA, especially at the provincial and district levels. Special attention should be paid to training personnel and equipping local offices with the material resources (e.g., surveying equipment, vehicles) necessary to more rapidly demarcate and register property.

4. Depending on the final contours of current decentralization initiatives, donors and international NGOs might also devote some resources to educating customary authorities or local municipality leaders about the statutory land laws and how the leaders might best use their authority to protect local interests while ensuring that their communities remain integrated within the broader economy.

5. Donors should consider organizing and funding workshops in provincial and district capitals similar to the May 1994 Second National Land Conference held in Maputo. These more localized workshops could provide national policy makers valuable input from government officials and members of civil society situated in diverse regional settings. The workshops could also keep more localized government officials and groups within civil society better informed on the land law, their rights and responsibilities.

6. After reforms are promulgated, donors should fund research designed to investigate how these new laws and procedures are being implemented. In particular, careful attention should be paid to the new land regime's impact on smallholders. In addition, if significant discretionary authority is indeed granted to local state officials or customary authorities,

research should be conducted on how that authority may be used to benefit or damage the rights of weaker groups within the community (e.g., women, particular lineages).

7. Donors and international NGOs should earmark money for improving smallholders' awareness of the land law and the steps they can take to secure land titles or otherwise protect their interests. This could be done through community seminars designed to inform people of their basic rights. Brochures published in Portuguese and local languages (or radio broadcasts) could serve a similar purpose.

8. Donors and international NGOs should engage in efforts designed to improve the capacity of groups within civil society to hold officials more accountable. Indeed, even if the formal land laws and administrative procedures are clarified and made more transparent, the rights of disadvantaged groups such as smallholders or women may still be violated. For this reason, it is critical that groups within civil society (especially smallholders) develop informational, material, and organizational resources which can be drawn upon to protect their interests. Channelling resources to Mozambican NGOs such as ORAM or Kulima would advance this objective. Donors and larger international NGOs might also consider the creation of non-governmental "service units" based in provincial and / or district capitals. These "service units" would ideally be comprised of four or five staff members who would disseminate information and provide financial and other practical assistance to groups, especially smallholders, attempting to secure formal land titles. A networks of such "service units" might also facilitate the construction of a broader political constituency which could lobby for legislation more amenable to smallholder interests.