Land regulations and land disputes in developing countries

Interactions of state laws and social rules in resolving land disputes Bui Thi Bich Lien Prepared for the 11 th Annual Democracy Lecture by Centre for Constitutionalism and Demilitariz

Interactions of state laws and social rules in resolving land disputes

Bui Thi Bich Lien

Prepared for the 11 th Annual Democracy Lecture by Centre for Constitutionalism and

Demilitarization, Lagos, Nigeria on 7 December 2013

Land is an essential part of human life It represents not only physical but also intangible

elements of human relations Land is regarded not simply as an economic or environmental asset, but as a social and cultural resource.1 As such, it is one of the key subjects of interactions between state and society How land is used, managed, and disputed affects the quality of social stability and development

This paper presents a number of key issues regarding the interactions between state laws and social rules in resolving land disputes Settlement of land conflicts is always complex, and it reflects the historical, political, and cultural conditions of the nations in which disputes happen Furthermore, domestic land disputes are not entirely isolated from the regional and

international environment in the era of globalisation It is not possible to discuss all of these factors in one article, or to generate a universal framework for land dispute resolution The paper only sets to provide a snapshot of the most important issues in understanding the

settlement of land disputes It starts with a summary of major approaches to dispute

resolution After that, it examines recent trend in land law reform in developing countries Finally, it introduces a potential model for land dispute resolution

State laws and social norms that govern land relations are collectively referred to as land

regulations Social norms imply all customary norms or traditional practices in relation to land that are widely accepted

1

United Nation Economic Commission for Africa, F a e o k a d Guideli es o La d Poli i Af i a , a aila le at

http://www.uneca.org/lpi

Mapping approaches to disputes resolution

This section briefly presents a number of key approaches to understand dispute resolution Disputes are inevitable to any society They occur, develop, and get resolved as a part of social evolution However, unsatisfactory settlement of disputes can hinder social development, and

is a potential source of social instability Effective resolution requires sound understanding about the nature of the subject matter Below are the four main traditions that study the role

of state and social institutions in resolving disputes

Alternative Dispute Resolution

Alternative dispute resolution (ADR) is a contemporary trend in the field of dispute resolution The term itself suggests methods of dispute resolution that avoid litigation ADR refers to a range of non-adversarial methods for resolving disputes such as mediation, conciliation,

arbitration, and negotiation

The idea of ADR first evolved in America the 1920s The founders of ADR were interested in studying patterns of social ordering.2 They were concerned that the capacity of court and adversarial litigation to adapt to changes in social conditions Specifically, the binary nature of litigation may limit its usefulness for complicated disputes that involve deep social conflicts They acknowledged that different disputes require different types of processes La s fu tio was to set out ideals and standards for civic participation, to provide a means for settling disputes and to preserve social harmony Law was enforced by legal institutions Other non-law processes were driven by the necessity of cooperation in social life For example mediation was the administration of social norms It was a site for private rule making, not state-made law

2

Menkel-Meadow, Mothe s a d Fathe s of I e tio : The I telle tual Fou de s of AD‘ (2000) 16 (1) Ohio State

Journal on Dispute Resolution 1, 13-30

ADR was institutionalised in the America in the 1970s, and quickly spread to other common law jurisdictions including the United Kingdom, Canada, Australia, and New Zealand.3 It was also introduced to developing countries including the Sub-Saharan region.4

Despite its rapid growth and the claim of providing a broader view of justice, ADR is associated with certain shortcomings It develops as a reaction to adversarial justice in the common law system.5 This means that ADR arose out of Western rule of law societies and is accordingly grounded on assumptions about the centrality of court-based disputes resolution that do not resemble conditions in non-Western societies The institutionalisation of ADR also requires adequate infrastructure which may not always be available in developing countries ADR can provide additional dispute resolutions for private sector and business communities but its potential for broader society is limited

Judicialization

Contrary to ADR, supporters of judicialization propose that courts and judicial process play an increasingly important role in society.6 B judi ializatio , the efe to a the judi ial

involvement in the formation and egulatio of pu li poli 7

Judicialization discusses regulatory change and how that affects the settlement of social conflicts.8

This concept was ased o the otio of o fli t st u tu e i t iads , a o di g to hi h t o people agree to submit their dispute to a third party for settlement.9 Because the resolution of

3

Hilary Astor and Christine M Chinkin, Dispute Resolution in Australia: History, Context and Theory of Alternative

Dispute Resolution (LexisNexis Butterworths, 2nd ed, 2002) 4

4

For example, see Arbitration and ADR in Africa, available at http://www.adrinafrica.com/web/index.html

Development Initiatives Network also published a book titled Alternative Dispute Resolution and Land and

Environment Disputes in Nigeria by Olayinka Shitta-Bey in 2003

5

For example, see Carrie Menkel –Meadow, above note 2

6

Tom Ginsburg and Albert H Y Chen (eds) Administrative Law and Governance in Asia: Comparative Perspectives

(Routledge Taylor & Francis Group, 2009), ix

7 To Gi s u g, The Judicialization of Administrative Governance: Causes, Consequences and Limits, Tom

Gi s u g i To Gi s u g a d Al e t H Y Chen (eds) Administrative Law and Governance in Asia: Comparative

Perspectives (Routledge Taylor & Francis Group, 2009) 1, 3

8 Mi hael W Do dle, O the ‘egulato D a i s of Judicialization: the Promise and Perils of Exploring

Judi ializatio i East a d “outheast Asia i To Gi s u g a d Al e t H Y.Chen (eds) Administrative Law and

Governance in Asia: Comparative Perspectives (Routledge Taylor & Francis Group, 2009) 23, 36

9

Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981) 1-8

a dispute can lead to one winner and one loser, it is essential to prevent the triad from breaking down into two against one The social relevance and usefulness of the triad is largely decided

by the neutrality and impartiality of the third party Depending on the nature of the dispute, disputants can select different forms of resolution in the mediating continuum, ranging from negotiation, mediation, arbitration, to adjudication

Courts are the least consensual and the most coercive of triadic dispute resolution institutions When parties go to court, they also consent to legal norms and the discretionary power of judges to resolve their disagreement However, courts are political institutions and thus they are required to control society, make and administer law In other words, courts work includes not only the resolution of legal disputes, but also legitimates the political regime by allocating scare economic resources or setting major social policies.10 Judicialization is a process to build the ou t apa it so that it a autho itati el dete i e the o te t of a o u it s

normative structure (such as culture, common practices, or institutionalised rules).11

Judicialization helps us assess how changes in the political legal landscape affect disputa ts behaviours In addition, it suggests how judicial development may affect the social normative structure Yet, the benefits of judicialization are potential in a constitutional context where courts are sufficiently strong, and state law generally plays a more dominant role than social norms in regulating behaviours I additio , it is still su je t to de ate hethe ou ts

o t i utio to the ha ge of o u it s o ati e st u tu e e efits so iet as a hole Let us look at an example of how state law and courts dispute esolutio may affect the norm

of customary tenancy in Nigeria This communal norm is a de facto recognition of landlord

ownership rights by tenant farmers.12 It enables strangers to access land even when he (or she)

10

Ibid, 24-63

11

Ibid 71-72

12 Akin L Mabogunje, Land Reform in Nigeria: Progress, Problems & Prospects , a aila le at

http://siteresources.worldbank.org/EXTARD/Resources/336681-1236436879081/5893311-1271205116054/mabogunje.pdf

did not belong to a family or community who had the rights to use land.13 The new concept of ownership rights in the Land Use Act sets a different approach to land accessibility Experts argued that decision by Oyo State High Court in Akinloye v Ogungle in 1979 may have had the consequence of eliminating customary tenancy. 14 The powers of traditional authorities, such

as heads of families, to exercise rights on behalf of their families had been deviated to the state While experts did not overlook the problems associated with customary tenancy, they were concerned that the disappearing of this practice leads to tenure insecurity of poor

farmers.15 Customary tenancy, however, is resilient In 1991, the Nigerian Supreme Court decided to rule in favour of the continued entitlement of landowners in Abioye v Yakubu The fact that customary right can be granted by a local government under the Land Use Act has not taken it out of the realm of customary law.16 By this decision, the Supreme Court

acknowledged that state law does not replace customary norms

Procedural justice (or justice of the procedure)

Procedural justice refers to the subjective assessments by people about the fairness of a

decision making process.17 It takes the view that public perception about the action of legal authorities is central to the effectiveness of the legal system.18 It explains why disputants

13L.K Ag osu, Extinction of Customary Tenancy in Nigeria by the Land Use Act: Akinloye v Ogungbe , Journal of

African Law, Vol 27, No 2 (Autumn, 1983), pp 188-195

14 Ibid For further examples of how judicial decisions affect customary norms, see L K Agbosu, The Land Use Act

and the State of Nigerian Land Law , Journal of African Law, Vol 32, No 1 (Spring, 1988), pp 1-43 There are

conflicting evaluations of customary tenancy, and the outcome of debates changed overtime Authors who support social justice argue that it is one of the great Nigerian customary practices that provided cheap, quick, simple and convenient means of acquiring land in rural communities On the other hand, development

professionals once believed that customary land tenure systems pose insurmountable obstacles to agricultural development and land resource conservation “ee S Famoriyo, Land Tenure, Land Use and Land Acquisition in Nigeria , available at http://horizon.documentation.ird.fr/exl-doc/pleins_textes/divers07/03068.pdf , Emea O Arua

and Eugene C Okorji, Multidimensional Analysis of Land Tenure Systems in Eastern Nigeria , available at

http://www.fao.org/sd/ltdirect/lr972/w6728t14.htm Recent empirical evidence, however, reveal that state registration and titling do not automatically enhance tenure security, but may even be source of insecurity See further discussion on land law reform in developing countries below

15

L.K Agbosu, note 13 above

16

E Snwauche, Legal Pluralism and Access to Land in Nigeria ,

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151460

17 “ posiu , P o edu al Justi e a d the ‘ule of La : Foste i g Legiti a i Alte ati e Dispute ‘esolutio ,

(2011) 1 Journal of Dispute Resolution 1, 3

18

To ‘ T le , P o edu al Justi e, Legiti a , a d the Effe ti e ‘ule of La (2003) 30 Crime and Justice 283, 284

choose state mechanisms to resolve their conflicts In addition, it suggests reasons why state law and legal institutions succeed or fail to become effective regulators in dispute resolution.19

Legiti a of autho ities is a oti atio al fo e that guides people s eha iou 20

If disputants elie e that the judge s de isio is fai l ade, the a e more willing to accept it and the justice system voluntarily.21 People are more concerned about the fairness of court procedures than the fair outcomes of their litigation experience.22 I othe o ds, people s assess e ts of the decision making process shapes their satisfaction with the outcome Factors that promote procedural justice generally include impartiality in decision making, ethics, and status

recognition by decision makers.23

Procedural justice helps us understand when people switch their preferences from social norms

to state regulations For example, the use of this concept may explain why implementation of Land Use Act in some areas is challenging.24 However, procedural justice is also associated with certain shortcomings A focus on people s judg e t of legal o s lea es aside the uestio of

ho othe so ial o s o t i ute to the shapi g of people s eha iou s and the resolution of disputes

A systematic view: Interactions between state laws and social rules

This analytical lens differs from all of the above because it does not assume that only the state has power to resolve social conflicts It suggests that different regulatory systems, including state laws and social rules, co-exist and interact with each other in guiding people s eha iou s Legal system co-evolves with other social systems when they communicate through mutually comprehendible norms The consequence of this process is an increase in the receptiveness to legal norms On the other hand, if law, economics, politics and society bypass each other in

19 It should e oted that this o ept is diffe e t f o due p o ess i o o la s ste

20

Tom R Tyler, Why People Obey the Law (Princeton University Press, 2006) 24

21 To ‘ T le , “o ial Justi e: Out o e a d P o edu e 5 International Journal of Psychology 117, 119

22 Ibid, 120

23 To ‘ T le , What is P o edu al Justi e? C ite ia Used Citize s to Assess the Fai ess of Legal P o edu es

(1988) 22 (1) Law and Society Review 103, 136

24

Emea O Arua and Eugene C Okorji, note 14 above

their communication, multiple regulatory norms come to co-exist and provide different

behavioural guidance. 25 They may even collide with each other and generate disputes

To understand the social value of law in resolving disputes, it is important to be aware of its conflict deviating effect.26

By reconstructing a dispute under artificial legal procedures with the support of artificial legal language, law deviates the original conflict by using its symbolic value Law possesses neither adequate understanding nor empathy to the causes of the

dispute and the needs of disputants What it does is falsifying the realities of the conflict and producing symbolic decisions Law may not do justice to the disputants as ADR does However, when conflicts appear non-resolvable by social norms, then law shows its potential to deviate such conflicts This special effect of law, however, requires the existence of an independent and powerful legal professional community It is, therefore, more common in urbanised and industrialised areas where communal norms are weakened.27

This approach is particularly useful to study disputes in a complex regulatory environment where state law co-exists with customs and traditional norms It asserts that socio-economic, cultural and institutional factors all influence land relations In addition, it recognises that the existence of multi-layer land regulations may provide different behavioural guidance for land users For example, the statutory right of occupancy under Nigerian Land Use Act is analogous

to the Euro-American land systems that are based on individual property rights Meanwhile, Nigerian customary land tenancy is related to family and community It was a layering of owners.28 Differences or gaps between these norms may lead to conflicts Effective dispute

25

Niklas Luhmann , Operational Closure and Structural Coupling: the Differentiation of the Legal System 99

-1992) 13 Cardozo Law Review 1432

26

Gunther Teubner, Alienating Justice: On the Social Surplus Value of the Twelfth Camel i Ji i P i a a d Da id Nelken (eds) Law’s New Bounda ies: Conse uences of Legal Autopoiesis (Ashgate Publishing Limited, 2001) 21, 26

27

For example, the Governor of Lagos disclosed that 1,957 cases of land disputes have been filed in Lagos High Court since 2009 There were 420 in 2009, 356 in 2010, 590 in 2011, and 591 in 2012 See

http://www.codewit.com/nigeria-news/5779-nigeria-we-have-filed-1-957-cases-on-land-disputes-in-3-years-fashola

28 Pauline E Peters, Challenges in Land Tenure and Land Reform in Africa: Anthropological Contributions , World

Development (2009) Vol 37, No 8, pp 1317-1325 Non-Africans hold different views about African customary

tenure Some argued that it is based on the concept of group ownership of absolute rights in land, with individuals acquiring usufruct rights (see Emea O Arua and Eugene C Okorji, note 14 above) Anthropologists, however, did

resolution requires an understanding of how the norms interact with each other, when they diverge and when they converge

The sections below employ this approach to examine the interactions between state and

community in shaping land reform in developing countries, and present a potential model for dispute resolution

Land Law Reform in Developing Countries

Land law has always been important in the state s agenda of most developing countries The specific preferences that a national government chose for its land law are often shaped by the historical and political context of that particular country Land in South Africa, for example, is strongly associated with concerns for historical injustices against groups The land issue,

therefore, e ai s olatile a d esista t to si ple e o o i solutio s It epresents how historical injustices colliding with demands for contemporary fairness.29 The current land regime in Nigeria also has a long and complex history.30

Despite a variety of policy options, there are certain common traits of land law reforms in developing countries Debates associated with these reforms evolve around the issues of statutory laws and customary norms, state-led and community-led initiatives State-led

reforms are conducted by national governments in a top-down fashion and often involve the expansion of the state at the expense of other forms of social authorities Meanwhile,

community-led reforms focus on connecting state actions with bottom-up political initiatives

ot suppo t the use of usufruct rights because this concept was derived from Roman law They asserted that the layering of ownership in customary tenure does not exclude individual rights

29

James Gibson, Land Redistribution/Restitution in South Africa: A Model of Multiple Values, as the Past Meets

the Present , British Journal of Political Science (2010), Vol.40(1), pp.135-169.

30

Akin L Mabogunje note 12 above See further, Muiz Ba i e, To a ds Effe ti e Co t ol a d Ma age e t of

Land in Nigeria: A Re-evaluation of the Land Use Act Oxford University Commonwealth Law Journal, (2005) 5 (2)

pp.257-286

and property relations on the ground.31 At the core of these debates is effort to communicate different conceptualisations of land by different groups of actor

Research shows that land reforms were a primary state activity in developing countries in the

20th century Reform programmes that spread out Eastern Europe, Asia, Latin America, and Africa reflected states ambition to bring about economic development In addition, land reform was considered an important tool for the newly independent nation states to

strengthen their authorities over rural areas Commentators believed that this model of state-led reform was associated with illusion of bureaucratic or technocratic omnipotence.32

Overtime state-led reform displays inherent limits in regulating land relations Implementation

of land laws often reflects struggles over legitimacy and control between state and society.33 The states face significant challenges due to the lack of supports from local actors, or the competence of the bureaucracy to accommodate various meanings of land, plural notions of property, and diverse political economic contexts.34 For example, anthropological research shows that the perceived problems in African agriculture were less due to problems inherent in customary land tenure than to broader social and political economic conditions 35

From a legal perspective, the introduction of modern land laws in developing countries

represents a common trend of legal t a spla tatio or legal borrowing The newly

independent states develop their land laws largely by borrowing model of land management from advanced legal systems This practice is based on the assumption that legal institutions can travel across national borders and survive the journey.36 Legal borrowing did not have significant references to indigenous social, political, or economic factors Critics of this

approach have pointed out that although legal ideas can transfer across borders, their

31

Thomas Sikor and Daniel Muller, The Limits of State-Led Land Reform: An Introduction , World Development

(2009) Vol 37, No 8, pp 1307-1316

32

Ibid

33

Donald C Williams, Measuring the Impact of Land Reform Policy in Nigeria , The Journal of Modern African

Studies, (1992) 30 (4) pp 587-608

34

Thomas Sikor and Daniel Muller, note 31 above

35

Pauline E Peters, note 28 above

36

Alan Watson, Comparative Law and Legal Change, Cambridge Law Journal, (1978) 37 (2) pp 313 –36

meanings lie with the interpretations of local recipients It is vital to understand how, why, and

by whom an imported legal text is used in local conditions because the language of the law does not by itself tell what happens in a legal system

Take the example of the Land Use Act The Act was viewed as an attempt by the Nigerian military government to create a uniform system of land holding throughout Nigeria It provides

a potentially important means for improving land relations via certificates of occupancy The implementation, however, has attracted controversial debates.37 Legal scholars challenged the interpretation of imported legal concepts such as t ustee-beneficiary relationship , o

highlighted the problem of normative shopping by land users.38 Other social scientists use empirical evidences to show that local governments lack adequate resources to implement the Act In addition, land tenure practices remain largely unaffected because of the resilience of customary norms.39

Community-led land reform has emerged as a response to the limits of state-led land reform Community has played a more significant role in debates and strategies on land issues,

although the spe ifi ea i g of o u it a ies f o o e country to another This new approach has been supported by both empirical evidences and conceptual foundations

Scholars assert that property relations are dynamics and are often open to negotiation through social processes As such, land reform cannot focus exclusively on the state and needs to be responsive to conditions on the ground such as local livelihoods and culture However, scholars are also cautious that community-led reform cannot be separate from state actions In

addition, community initiatives should be contextually fit.40

37

Muiz Banire and Akin L Mabogunje note 30 above It is not possible to mention here the numerous books and articles discussing the implication of the Land Use Act that are produced si e the A t s promulgation

38

L.K.Agbosu note 13 above, and E Snwauche note 16 above

39 Donald C Williams, note 31 above Donald Williams research was conducted in Oyo State See further Emea O Arua and Eugene C Okorji note 14 above This research was conducted in Eastern Nigeria comprising Abia, Akwa Ibom, Anambra, Cross River, Enugu, Imo and Rivers States Similar evidence was collected from Uturu See also Uchendu Eugene Chigbu and Michael K laus, Insecurity-Generating System of Land Tenure and its Impact on Rural Development: Evidence from Uturu, N ige ia , a aila le at

http://www.fig.net/pub/fig2013/papers/ts07b/TS07B_chigbu_klaus_6375.pdf

40

Thomas Sikor and Daniel Muller, note 31 above