The Continuum of Land Rights Approach Different forms of Land Rights Samuel Mabikke, PhD GLTN/UN-Habitat Partnership For Action Conference: Improving Land Governance And Management In Africa Pretoria - South Africa, 15 - 17 August, 2017  

TENURE SECURITY for ALL - A Global Challenge!! Finding ways of Recognising, Recording and Administering a variety of appropriate and legitimate land tenure forms to achieve security of tenure for all

Fundamental Questions …we need to ask ourselves !! What is security of land tenure? Why is achieving security of tenure for everyone important? How can we develop appropriate concepts, tools and Approaches to help us understand and act to achieve this?

security of tenure “Security of tenure is the right of all individuals and groups to effective protection against evictions.” “Security of tenure can be defined as an agreement or understanding between an individual or group to land and residential property, which is governed and regulated by a legal and administrative framework.” Source: HABITAT III, Issue Paper 9

WHY IS TENURE SECURITY IMPORTANT? Increased tenure security can: Help overcome land, housing and livelihood inequalities Promote equity, inclusion and the realisation of human rights Promote food security, entrepreneurship and sustainable development Facilitate provision of essential facilities, services and quality of life Reduce physical insecurity and conflict Reduce forced eviction, corruption, ‘land grabbing’ Overcome wide-spread discrimination against women Create options for youth

RECOGNISING The challenge, 1991 “Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.” General Comment 4, UN Committee on Economic, Social and Cultural Rights, 1991

A response, habitat II “Access to land and legal security of tenure are strategic prerequisites for the provision of adequate shelter for all and for the development of sustainable human settlements affecting both urban and rural areas. It is also one way of breaking the vicious circle of poverty.” “While recognizing the existence of different national laws and/or systems of land tenure, Governments at the appropriate levels, including local authorities, should nevertheless strive to remove all possible obstacles that may hamper equitable access to land and ensure that equal rights of women and men related to land and property are protected under the law.” Habitat Agenda, Habitat II, 1996

The situation today Accelerated urbanisation & growth of informal settlements and slums Powerful economic forces pushing towards individualisaion and commodification of land and housing rights Many situations of land conflict, dispossessions, grabbing, eviction Conventional land administration policies & systems unable to cope Large-scale individual land titling programmes mostly unsuccessful An overall trend of growing tenure insecurity, at the expense of poor and vulnerable individuals, groups, communities

falling off the register 70% of developing country populations fall outside any land register In Sub-Saharan Africa: more than 60% of urban dwellers live in informality, and poverty Conventional land administration is too expensive, and where in place is often not working Problems of sustainability and inability to implement at scale Inadequate recognition of communal, secondary, group rights, etc. Need to develop an affordable, inclusive, scalable approaches

IMPROVING OUR UNDERSTANDING OF TENURE Tenure is frequently understood in binary terms: - formal vs informal, - legal vs extra-legal, - secure vs insecure, - de facto vs de jure In practice a diversity of appropriate, legitimate tenure arrangements exists between these extremities There is no automatic correlation between the form of tenure and its security The extent of the actual security depends on many factors, including historical, social, regulatory, institutional and governance

SO WHAT IS THE continuum? The continuum of land rights is not a theory, it is rather a powerful concept, or metaphor, for understanding this rich land tenure diversity Rights to land are regarded as lying on a continuum between informal and formal In between these lie a wide and complex spectrum of rights

An inclusive understanding of tenure Tenure can take a variety of forms along this continuum … documented as well as undocumented, formal as well as informal, for individuals as well as groups, including pastoralists, and residents of slums and other settlements, which may be legal or extra-legal … The rights do not lie on a single line, and they may overlap Registered freehold should not be seen as the preferred or ultimate form – it is one of a number of appropriate and legitimate forms (customary, leasehold, group tenure, others) The most appropriate form depends on context (See: Handling Land, GLTN 2012)

A POWERFUL ALTERNATIVE APPROACH The continuum offers a powerful and practical alternative approach to the dominant focus on titling of individually held private property as the ultimate form of tenure security, or the end goal of land tenure reforms It recognises that there are a number of tenure forms that are appropriate, robust, effective, legitimate – it builds on what is there It promotes increase of security across the continuum, with opportunity for movement between tenure forms The Continuum of Land Rights is now widely accepted, as part of a global shift in understanding of land tenure

GROWING ACCEPTANCE WORLDWIDE The continuum concept and approach are increasingly visible in key resolutions, statements, tools, programmes, law and practice. Examples include: Land Policy Initiative Framework and Guidelines on Land Policy in Africa (2010) UN-Habitat Governing Council Resolution, April 2011 (GC 23/17) Land Governance Assessment Framework, or LGAF (WB and others) Namibian Flexible Land Tenure Act, 2012 Voluntary Guidelines (FAO and others – governance of all forms of legitimate tenure) Social Tenure Domain Model concept and tool (GLTN partners) Fit-for-Purpose Land Administration approach (FIG, WB, others)

HABITAT III The New Urban Agenda… “We commit ourselves to promoting, at the appropriate level of government, including sub-national and local government, increased security of tenure for all, recognizing the plurality of tenure types, and to develop fit-for-purpose, and age-, gender-, and environment-responsive solutions within the continuum of land and property rights, with particular attention to security of land tenure for women as key to their empowerment, including through effective administrative systems.” New Urban Agenda,§35 Habitat III, 2016

Key ingredients for implementation A continuum of land rights can be said to have been implemented in a particular country situation once: the full spectrum of formal, informal and customary rights are catered for within the land information management system; and the range of rights in the country constitutes legally enforceable claims which can be asserted and defended in a forum such as a court

The continuum in practice Research in Malawi, Namibia, Angola, Mozambique and South Africa found evidence of a diversity of deep-rooted and emerging practices and systems already in place, including: Witnessed right to land Locally documented right to land - social legitimacy Familial / Marital right to land Administratively documented right to land – official recognition Occupation rights / permission to occupy Customary land right Group rights to land De facto rights of possession Forms of leasehold Individual private ownership / freehold

THE CONTINUUM IN SUMMARY The continuum of land rights offers a potential pathway to tenure security, through Recognising, recording and administering a variety of appropriate and legitimate land tenure forms From an operational perspective, a continuum of land rights can be said to exist “When the full spectrum of formal, informal and customary rights are catered for within a land information management system” and “When a range of rights in a country constitutes legally enforceable claims which can be asserted and defended in a forum such as a court” Success will depend on contextual challenges and opportunities. A well supported, sustained, locally driven strategy involving multiple partnerships and innovative land tools is essential

UN-Habitat, P.O Box 30030, Nairobi 00100, Kenya THANK YOU GLTN Secretariat UN-Habitat, P.O Box 30030, Nairobi 00100, Kenya gltn@unhabitat.org www.gltn.net