Land disputes and governance in Afghanistan

Land in Afghanistan is an extremely complicated issue, proving a main source of conflict. Weak governing institutions and a lack of political will to tackle the issue seriously, however, have made it practically impossible to resolve disputes over land and property in an effective and fair manner.

By Dr. Nezamuddin Katawazi

With over 70% of its estimated 28 million population living in rural areas, the economy of Afghanistan is overwhelmingly agricultural, providing the main source of income for the majority. In 2008, agriculture was recognized as one of the main areas of development and reconstruction in the Afghanistan National Development Strategy (ANDS). Utilizing land for economic growth, however, requires a sound and effective land administration system. Reforms in this area can contribute to strengthening both the protection of rights and the rule of law, as identified by UN-Habitat in relation to many post-war countries.(1)

Disputes over land and property have long existed, but have become increasingly severe since 2001 – both in terms of number and impact. A recent publication by the Institute for War and Peace Reporting shows that land disputes occur in urban and rural areas, with the report indicating that thousands of acres of land have been usurped without the government reacting. Building an effective land administration system in Afghanistan remains beset by institutional deficiencies and the lack of of a proper legal framework which continue to undermine economic and social rights.

Afghanistan’s land administration system

Land in Afghanistan is an extremely complicated issue, proving a main source of conflict between individuals, families and tribes. The system is a complex regulatory framework, containing structures, processes and institutions dealing with various aspects of land issues (such as the adjudication of disputes, management, registration, transactions, valuations and taxation), drawing on principles from religious rules, customary practices and statutory provisions.

The management of land-related issues is now the responsibility of the Ministry of Agriculture, Irrigation and Livestock (MAIL). A newly-established agency within MAIL, the Afghanistan Land Authority (ALA) – called Arazi – has the mandate to “coordinate its activities with the Afghan government, line ministries, donors and private sector organizations, to ensure that land needed for productive investment is made available.” Beside the Arazi, municipalities are also involved in the allocation and distribution of government land.

The court system, meanwhile, has a dual role of adjudicating in disputes and maintaining land ownerships records in so-called Makhzans (the archives of the Provincial Appeal Courts, where the original ownership documents are stored.) In practical terms, the courts have an essential role in the administration of land affairs.

Since a huge numbers of refugees have returned to Afghanistan since 2002, many referred to the courts to retrieve their land and property. In response, the government established a Special Property Resolution Court (SPRC) in 2002 to address returnee’s complaints regarding land disputes. However, the SPRC did not provide effective solutions and collapsed in 2005; primarily because of the inability and unwillingness of law enforcement agencies to implement its final decisions. Since then, land and property disputes have been dealt with by normal courts.

Although official structures have been established to manage land affairs, many aspects – such as transactions and tenure security – are still regulated mainly by religious rules and customary processes, Jirga and Shura. This is a centuries old system for resolving disputes; once which is deeply-entrenched in Afghan culture. Customary rules have not yet been fully-integrated into the formal land administration system. As such, the resolution of disputes over tenure are often inconsistent with state laws and recognized human rights standards. This is particularly true regarding inheritance rights and the rights to property for women and girls. Whilst special parliamentary committees were established to hear citizen’s complaints regarding land disputes, their decisions and recommendations lack support within the law enforcement agencies and judiciary.

The legal framework

The regulatory framework governing land sector in Afghanistan is a complex of customary, statutory and Hanifi jurisprudence of Islamic law. The main legislative text is the country’s Civil Code (1977) – largely based on the Hanafi school of rights in Islamic Sharia – containing over one thousand provisions regarding land and property rights.

The Afghan government, with assistance from the international community, adopted a new Land Policy (LP) in 2007 in order to ensure access to land for every Afghan; to secure land tenure and to establish a sufficient system of land administration. Based on this policy, a new law – the Law on Management of Land Affairs (LMLA) – was adopted in 2008 with the aim of creating a unified and credible system for land affairs, including the registration of land in Amlak (‘Property’) offices. and addressing the problems arising from the implementation of land reforms of previous regimes. The LMLA has stipulated commissions at the central and provincial level to manage land affairs, but to date these commissions are yet to be established.

Article 40 of the Afghan constitution, plus the Article 17 of the Universal Declaration of Human Rights 1948, both recognize the right to property, with the former stipulating that “property shall be safe from violation.  No one shall be forbidden from owning property and acquiring it, unless limited by the provisions of law.”

International engagement and land issues

Since 2001, several international bodies have been engaged in implementing various programs and reforms in the agricultural sector, including rehabilitating the traditional irrigation systems (kareez) and emergency irrigation projects. International assistance has, however, not been able to help the Afghan government create effective institutions and structures to tackle problems arising from land mismanagement. Instead, international assistance was mainly concerned with security problems; failing to recognize the wider negative effects land- and property-related disputes have on the economic and political situation.

Some projects have focused on aspects of land administration and management. USAID has, for example, strengthened the capacity of relevant institutions to manage land tilting and registration in urban centres, whilst its Land Reform in Afghanistan (LARA) project (2011-2014) aims to strengthen the capacity of relevant institutions to deal effectively with land and property issues. LARA “seeks to develop a robust, Afghan-owned and managed land market framework that encourages investment and productivity growth, supports the resolution/mitigation of land-based conflict, and builds confidence in the legitimacy of the Afghan Government”.

The international community also launched projects to reform and strengthen the judicial system and law enforcement agencies. Such efforts, however, have brought few tangible results. The institutions in charge of land administration and management still lack the required capacity and efficiency to secure land tenure and to provide effective mechanisms to uphold ownership rights.

Challenges of the land sector

The multiple roles and functions of various institutions in addressing land and property issues has created confusion. Disputes of this kind, for example, take much longer to be resolved by the  formal sector, which is often undermined by corruption. As a result, the rural population in general prefers to refer to the informal system, the so-called, jirga or shura system.

The Jirga system is based on the consensus of participating members on a particular issue. This informal system has its own deficiencies; the main criticism being that it does not allow women to take part, whilst its final resolutions often do not consider the rights of women, for instance, in relation to inheritance and other matters. The judgements of the Jirga do not always correspond to domestic law, sharia tenets and international human rights standards.

A recent survey conducted by the US Institute for Peace (USIP) regarding the role of informal justice system in resolving disputes, including land and property disputes shows, that, “The vast majority of disputes are resolved outside of the formal state system, often by tribal elders, shuras, or other traditional community forums…However, these “informal justice” mechanisms also have their weaknesses…Decisions may not be based on Afghan law, or may reinforce community inequities or power imbalances. In some cases, informal justice mechanisms have resulted in severe rights violations, particularly against vulnerable or marginalized groups including women, children, and minorities.” The USIP report also reinforces the role of informal justice system in land administration due to the weakness of the formal judicial system, which is either not present in many parts or lacks credibility due to widespread corruption within the judiciary.

Different regimes in Afghanistan have introduced land reforms in the past, but without being able to fully implement them. The Communist regime initiated radical reforms in 1978, central to which was the expropriation of land of more than 6 jeribs (one jerib is equal to 2,000 square meters). The confiscated land, which was not compensated, was distributed to landless peasants, resulting in political unrest. The land reform of the seventies, during the first republican regime of Daud Khan, had also ended in failure. The Land Reform Law (LRL) of 1975 set an upper limit for land holding of 20 hectares of irrigated land and 40 hectares for rain-fed land, with excess land being purchased and redistributed. Subsequent attempts to establish registration offices to register land ownership

The difficulty with Afghan legislation regarding land tenure and management is that various legal regimes are in use; regimes that are often contradictory. The predominant influence of customary law in rural areas is a further challenge, with ownership regulated by a mixture of customary, religious and statutory laws. Every community has its own narkhs (local rules and principles) which provide for different interpretation of land relations. The uncertainty of boundaries is an additional problem, one that the cadastral department doesnt posses the necessary capacity to resolve.

Legal, institutional and structural deficiencies lead to problems relating to tenure security appear to be  lack of functioning registration system for land and property, confusion in differentiating between common/tribal land from state land/property, land grabbing, conflicting claims to the same property, complexity/multiplicity of systems governing the land sector and others.

A lack of rule of law and good governance

The continuous armed conflict that destroyed the rural infrastructure and the weakness of strong centralized institutions led to new local power structures in rural Afghanistan. In much of the country, local elites, warlords, and political factions control land and natural resources by using force and customary rules that reflect deeply-entrenched power structures. These dominant power relations produce and perpetuate unequal access to land and water rights. Land administration and judicial institutions lack both the capacity and authority to manage land and natural resources.

Several factors – such as the return of over four millions refugees from Pakistan and Iran, a great number of internally displaced persons (IDPs), the rise in value of land and property, corruption in the judiciary and land management institutions – have further exacerbated the situation. Factors contributing to land/property disputes are numerous, including insecurity, land grabs and widespread corruption.

Insecurity

Land tenure issues are closely-linked with peacebuilding efforts in Afghanistan; with security gaps and weak governance fuelling one another. Attempts by the Afghan government and its international allies to implement tenure reforms remain limited in scope. Security – particularly in the South, Southeast and Eastern provinces – has deteriorated, causing enormous challenges to land rights proection and the resolution of land-related disputes. The inability and unwillingness of the present administration to deliver basic social services, including land management-related services, provides the insurgency with greater influence amongst the rural population.

Land grabs

In many parts of Afghanistan, powerful individuals have seized public and private land – particularly from refugees/IDPs. Of an estimated 396,808 IDPs, 12% have been displaced as a result of land disputes and illegal taxation. Land grabbing is often accompanied by corrupt practices that encourage, for instance, the faking of deeds. According to the Commission on Supervising Government Activities, was established within the Afghanistan Parliament in early 2013 to supervise the government’s activities regarding land issues, “about 1, 290,000 acres of lands have been grabbed by 15,000 people across Afghanistan. After conducting a survey for over six months, the Commission said that most of the land grabbers are supported by a network of officials from within the Government.”

Corruption

A lack of accountability has paved the way for a culture of impunity and corruption in its various forms. Concepts like the rule of law and good governance have been replaced by a dominant atmosphere of personal relations and nepotism. Frequent reports have identified the judiciary, security sectors and municipalities – three institutions in charge of a large part of land management issues – as the most corrupt, thereby undermining security of tenure; a fundamental dimension of human rights recognized by international and domestic legal documents. Without security of tenure in formal or customary form, people’s right to have access to and use of land is permanently under threat.

Conclusion

Weak governing institutions and a lack of political will to tackle the issue seriously have made it practically impossible to resolve disputes over land and property in an effective and fair manner. The significance of a sound and functioning land sector for stability and growth necessitates ever more urgent reforms, including structural and legal changes to ensure tenure security and prevent illegal occupations. The international community should help the Afghan government to strengthen its institutional capacity and adapt the present legal framework to deal effectively with land and property disputes. The UN should introduce a broader approach – drawing on the concept of housing, land and property (HLP) rights – in its engagement with the Afghan government to ensure that these interrelated rights for all residential sectors, including IDPs, Kuthies, disabled people and returnees are protected. It is advisable that every future peace agreement in Afghanistan should consider the issue of land and property disputes and take decisions based on the experiences of the last decade.

Dr. Nezamuddin Katawazi is director of the Peace and Human Rights Organization (PHRO), a Kabul-based organisation that combines peacebuilding efforts and initiatives with the protection and promotion of human rights.  Prior to that, he worked as Managing Director of Bakhter Consulting and Publishing Centre in Peshawar, Pakistan, and as Senior National Human Rights Officer at the United Nations Assistance Mission in Afghanistan (UNAMA). Nezamuddin received his PhD in the field of Iranian Studies at Humboldt University, Berlin.

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