Putting rural land registration in perspective: the Afghanistan case
Alden Wily, Liz
Paper presented at the Symposium on Land Administration in Post Conflict Areas, held at Geneva, 29-30 April 2004 (LAPCA, Geneva).
The thrust of land planning by the post-Taliban Administration in Afghanistan is towards the establishment of nationwide registration of property rights. This objective typifies post-conflict strategising, reflecting the combined concerns to bring order to disorderly conditions and to establish the authority of the new administration. This paper argues that such approaches risk ignoring the issues that must be tackled for land relations to be secured on a lasting basis and risk entrenching injustices that helped give rise to the conflict in the first instance. Whilst eventually an indispensable tool towards land security in a 21st century world, the more immediate need in especially post-conflict areas may be to reassess what rights are to be recorded, on what basis and through what means. This is particularly so in agrarian sectors where registrable interests may not necessarily accord with those that exist on the ground. In examining the rural Afghanistan case, it is shown that whilst a rich history of deeds registration exists, problems with this system reach beyond its out-dated and now corrupted procedures. These reach more deeply into questions of past policy and law, as to how rights over land have been recognised and acquired, including those which past administrations have awarded themselves. The characteristic failure of 20th century registration systems to properly account for common rights or for the complex access obligations that stem from the privilege of landlordism is shown to have been particularly pernicious in the creation of legal norms that possess low local legitimacy and trigger dispute. The basis upon which rights are registered also comes into doubt, challenging the neutrality classically accorded formal procedures. For many rural Afghans, paper entitlements to especially pasture represents less evidence of due right than evidence of an intolerable oppression, and resistance to which has been integral to the conflicts of the last quarter century up until the present. In short, the search for peace and acceptable tenure are inextricably linked and unlikely to be well-served by thoughtless perseverance with bureaucratic procedure, the resulting illusion of increasing order notwithstanding. A fresh approach is required and which is able both to absorb the lessons of local history and work around the realities of limited rule of law or confidence in the formal courts ability to fairly uphold rights. To this end a community based approach is suggested. Atypically, this would need to begin, not end, with the pastures, where State, common and private interests so heatedly battle for space and meaning. Face-to-face reconciliation could build from a focus on rationalising the use, access and regulation of specific pastures and establishing the mechanisms for sustaining agreed norms. It is these agreements and procedures (or rights and rules) that would be recorded, laying the foundation for a local land register and administration regime, and the building blocks of new policy, law and civil and judicial support, immediately more workable given its design and operation by those it most involves and effects.
Event: Symposium on Land Administration in Post Conflict Areas
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