DOING (INCLUSIVE) BUSINESS IN GUINEA BISSAU: RE-ACTIVATING THE 1998 LAND LAW Christopher Tanner Mokoro Ltd, Oxford, UK Camille Bourguignon The World Bank Please, modify the content directly on the slide. Write your comments in this section. Paste more info or sources here.

Overview 1985-1990: 1,497 land concessions covering some 9% of the territory; impacting local rights and livelihoods 1998 Land Law developed to regulate investment and protect local rights - approved just before civil war Guinea Bissau emerging from long period of political instability (1998 – 2014) Massive recent expansion in (poorly regulated) cashew production Very weak public land administration Land processes very inefficient (149 out of the 190 countries in 2017 Doing Business Report) Is the 1998 Land Law still valid and appropriate? Can we improve land administration independently?

1998 Land Law Developed after extensive consultation Draws on research on customary land use systems Addresses historical legacy of dualist land structure (commercial and customary areas) Integrates customary/formal rights in one, unifying law An INCLUSIVE land management model: Promote private investment for economic growth Ensure local populations retain land and benefit from private investment through negotiated land access Creates the Right of Private Use (RPU) acquired through: Customary land use; and concessions Concessions for 90 years, renewable, inheritable The RPU is marketable

Customary rights Law recognizes all customarily-acquired land rights “rights constituted on land and over natural resources enjoy equal protection whether they result from custom or from law” (1998 Land Law, Art 2(3)) Customary use – rights acquired/managed through customary rules The ‘Local Community’ (LC) (land holding and management unit) customary, territorially-based entity [entities], corresponding to the grouping formed by families and individual residents in a certain circumscribed area of the national territory (tabancas or a group of tabancas), for the pursuance of common historical, economic and social and cultural interests and which includes areas of habitation, agricultural and forest areas, grazing land and water sources, sites of cultural importance and the respective expansion areas

Concessions Rural Urban For agriculture, livestock, agro-livestock, agro-industry, forestry and tourism Issued by General Directorate of Geography and Cadastre Urban Land within limits of cities and villages for housing, commercial, industrial and cultural purposes Can be acquired over customary use land through negotiation with the relevant Local Community LC has “the right to negotiate freely and directly, the transmission of the Rights of Private Use of which they are title holders (titulares) (1998 Land Law, Art 19(2))

Summary – 1998 Land Law Combines customary use, Local Community management, and mandatory consultation with Local Communities Creates titled Rights of Private Use (concesssions) that can be transmitted Provides innovative mechanisms for protecting local rights Ending negative impacts of dualism Allows a de facto land (rights) market Ensuring livelihoods protection Ensures INCLUSIVE and EQUITABLE investment process Creates a nested structure of Land Commissions

Institutional innovation – Land Commissions National, Regional, Sectoral and Section (community level) Structure and function at each level changes National and Regional: oversight, policy, and problem solving Sectoral: supporting land management and development strategy Section: mediating and facilitating different land use options Local Communities integrated into the land management structure through role in Section level Land Commissions Contribute to peaceful and consensual resolution of conflicts between local communities and external interests Resolve conflicts among Local Communities, and issues arising from changes in customary norms and practices

Current situation Still not regulated (draft in 2004, new draft ongoing now) Most Local Communities with land under customary use have not been spatially identified and recorded (delimited) Rapid economic growth hitting land availability in many areas Massive expansion of cashew plantations Now roughly 50% of cultivated land Major source of income for private & local community farmers when individuals convert traditional crops to cash cropping Expansion of 1990s trend and new private sector rural investment Cashew trees serve as ‘occupation trees’ holding rights over land Customary land rules changing or breaking down

Relevance of 1998 law today Main structural challenges are still very similar to those that the 1998 Land Law was developed to respond to Hard to imagine an alternative to devolving management functions and considerable decision-making power to the local level Still need the inclusive and unifying philosophy of the 1998 Land Law Concepts and instruments allow for an inclusive and negotiated process to be promoted between local communities and investors Local Communities as local level land management entities: Can oversee and legitimize changes to the customs and practices Promote consensus (working with the Land Commission structure) The law establishes a devolved land management structure in which local and evolving customary entities play a legally recognized role

Other issues – administration Public services dealing with land management and administration are weak and characterized by arcane and unreformed procedures True for rural and urban administrations No investment in public land services for a very long time Investors with de facto illegal title in absence of effective administration 2017 Doing Business report (World Bank 2017) a company buying a real property of XOF 17 million in Bissau City must complete 8 processes, wait 51 days and pay 5.5% of the value of the real property to register its rights in the Land Registry Quality of land administration index: 3/30 points Guinea Bissau 149 out of 190 countries covered by the report

The way forward The 1998 Land Law 1998 Land Law is ‘fit for purpose’ General support for retaining the law and finalising Regulations The 1998 Law is on the statute book and can be used Finalise Regulations (building in stronger gender equality provisions) Establish Land Commission structure and develop training programme Trial Local Community Delimitations (lesson learning Mozambique) Revise existing land administration procedures and norms Capacity building investment project for land administration Develop rural land tax capacity and start distributing 20 percent of revenues to Local Communities as per the 1998 Law

Thank you