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3.9.4 Effects and Problems with Privatization and Divestiture Programs
In summary, in
most countries a long learning process is required and a considerable need for
implementation exists for linking land law with other complementary areas of law.
Influential interest groups are aware of the political, economic and
social repercussions a new draft of the land tenure systems
would have. Therefore, a large number of people are following the process of privatization
and are attempting to influence it to their benefit. The distribution of property rights
in land is, of course, coupled with the distribution of power in a developing society.
Economic power is expressed as bargaining power, concerning, for example, concessions for
forest development, lease conditions for arable land or the
ownership transfer of former state farms. As a result, the
transformation process can be blocked for
extended periods of time by coalitions of the "old" powers and through
"rent-seeking" strategies of persons in key positions. Thus, each country makes
its own very different experiences. In the following the process in Laos is summarized;
the actors typically involved here may also be found in many other countries though their
roles may vary. |
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| Actors involved in the process of
divestiture in Laos 1. State party
Key positions in the administration (rent seeking)
"Gatekeeper" function: economic, but not political change
State property remains in the constitution
Individual money-making with land
2. Military
3. Bureaucracy on all levels
Between numbness/inactivity and active cooperation with donors
Coalition with donors to push through land laws
Over-demand on the local bureaucracy for the implementation
4. Smallholders
5. Village communities
6. National entrepreneurs
7. International capital
Most powerful and successful "pressure group"
Goal: Securing investments for the exploitation of resources
Guarantee return of profits (e.g. lumber businesses)
Strong bargaining power, influence on legislation
8. International donors
Catalysts for reformed systems of land tenure
Primarily "top down" approach, but also participatory
approach
Countervailing power against purely economic interests
(Kirk 1996a) |
The demand for
combining national land tenure and autochthonous rights in a sensible way and giving each
its own space is difficult to realize. This problem is made clear in the land register. On the one hand an expensive national land register is
established, and on the other hand, an informal land registration program based on participation is started up in rural areas
at the same time (Benin, Cambodia or Laos). Since the systems underlie different
ministries, the measures are not coordinated with one another. Whether the informal system
can be transferred to the more formal system with the progressing urbanization of villages, and whether the standards are compatible with
one another is usually not considered since they are financed by different institutions. |
Loopholes and
inconsistencies in the legislation |
Many countries
have not sufficiently secured that new laws are not in contradiction with existing
decrees. For example, in Uzbekistan the new land law does not provide for private property
whereas the decrees on the provincial level do. The list of such uncertainties and
inconsistencies is endless. |
Contradictions
in the legislation |
In many
countries writing up new property rights systems,
it is neglected to enshrine the responsibilities and encumbrances connected with it. This
includes the obligation of securing land value (land improvements or road construction),
sovereign rights of the state (power lines, etc.) or rights of other groups of the society
(right of way or of routes for trespassing pastoralists)
which are insufficiently considered. Multifaceted material for future conflicts is found
herein. |
Easements and
encumbrances |
Besides these
problems from the daily world, many well-intentioned innovations proved to be too complex
to be implemented. The number of committees for land distribution and for solving conflicts on the local level has grown
with the new, participatory land legislation. If these are established complementary to
existing organizations, then it is merely a renaming of known structures. If the
composition of the committees is practical, then will it be possible to overcome
opposition from the local population? These are only selected problem areas that need to
be solved individually. |
"Flood of
committees" |
| "Daily
problems" with implementation Typical problems with implementation are the following:
The education of the lower and middle levels of the administration is
insufficient with respect to the implementation of new regulations.
Management experience is lacking to deal with the process of
privatization with professional competence on the spot.
Opportunities for further training are lacking.
Administrators lack willingness to take responsibility and make
decisions since they have only merely passed on orders from the "top" to the
"bottom." ("The top will only hear what the bottom thinks the top wants to
hear." Eckert & Elwert 1996).
Laws and decrees are lacking or worded too complicatedly.
The competencies between administrations are not clarified,
especially if comprehensive resource concepts are advocated.
Personnel is lacking to follow the participatory processes for the
identification of village land in cases of boundary conflicts and to start a local land
register.
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In many
countries the knowledge on the reformed legislation and the demands which are made (again)
on mayors, village chiefs and local public servants is little. Decentralization is felt as
an "act of pardon" often not having to be fought for, which strengthens local
power centers. Those with this power in Uzbekistan are the mayors and the former leaders
of the kolkhoz. In Laos, they are the elected village chiefs
which gained legitimacy already during the socialist era and have continued to work after
a smooth transition. In Benin, the reform was coupled with the renewed strengthening of
the traditional chiefs and kings as trustees of autochthonous law.
Seniority and "old authorities" also gain power in this way.
Whether their feedback goes to the "top" and thus the control is secured from
the "top" is questionable in view of the poor communication and empty state
treasury. |
Decentralization
and subsidiary |
Generalizations
are not possible, however, the presence of those affected in the process of political
bargaining of new systems of land tenure is a basic condition for validating the claims. |
Winner-loser |
Women's claims
are formally reinforced by reform legislation. The majority of them, however, will
probably never know about the laws since men have little interest in spreading them, and
women are prevented from further education and mobility in many countries. The framework
has been created for women to have equal rights to land, but it is still hard work for
this to be implemented on the village level. In addition, women also need to show interest
in policies for their benefit. |
Women |
The former
elite, those expropriated, are the winners of divestiture
even if their entire land was not returned to them. This can be seen in the returning
families in Laos, Cambodia and Mozambique. The traditional elite like chiefs in African
countries also belong to the winners (see above). The winners in the former Soviet
states are the former leaders of the kolkhoz. They were able to secure land for
themselves, purchase stocks from withdrawing members and they continue to have a strong
influence on land distribution. |
"Old"
elite |
Entrepreneurs
shaped by the city and high public servants have used the privatization process to secure
land for themselves since they have a considerable lead with respect to information
regarding the interpretation of laws and often possess enough money. They use the land
productively in part, but it also serves as security for old age and as an object of
speculation. In Mozambique, speculators obtained at least 20 million hectares in
concessions to be used for agriculture between 1992 and 1994. |
Urban groups |
Market
economy-oriented reforms have the danger that smallholders rarely gain access to land of
high value since they are not in a position to purchase this land with their own capital.
Few promotional programs for obtaining credit for this exist. The necessary information
about the "procedures for purchase" is lacking for the smallholder. The danger
is increasing that they will be cheated by more dynamic groups, or they will lose their
land again later when they cannot repay the loan. |
Smallholders |
While
pastoralists have a stronger lobby to represent their interests now than in the past, they
continue to be at a disadvantage structurally. If they are still mobile, they may be
represented in committees, but these committees are not always responsible for them if the
conflicts are inter-regional (corridors for migration routes
and access to watering places along the corridor). A "pastoral code" has been created only in very few countries which is
targeted to their inter-regional needs (like Niger, Mongolia). |
Farmers
vs. pastoralists |
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