Pro-poor land administration: Principles for recording the land rights of the underrepresented

Land Use Policy 31 (2013) 595–604

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Pro-poor land administration: Principles for recording the land rights of the underrepresented Jaap Zevenbergen a , Clarissa Augustinus b , Danilo Antonio b , Rohan Bennett a,∗ a b

UNU School for Land Administration Studies, ITC Faculty, University of Twente, PO Box 217, 7500 AE Enschede, The Netherlands UN-HABITAT, Nairobi, Kenya

a r t i c l e

i n f o

Article history: Received 9 July 2012 Received in revised form 30 August 2012 Accepted 8 September 2012 Keywords: Land tools Land administration Tenure security Pro-poor Land registration

a b s t r a c t The global land community has accepted that individual land titling on its own cannot deliver security of tenure in a complete or timely fashion, and that a continuum of land rights approach needs to be used. This approach needs to be accompanied by new and innovative pro-poor forms of land recordation to cater for these new forms of tenure. The proposed design draws on conventional land administration systems and the experiences of professionals, civil society and researchers regarding the land tenure systems of the poor and how they work in customary, informal, and post crisis areas. It is based on eight general design requirements, including delivery of preventive justice and co-management arrangements. The design is made up of ten interlinked elements, with an emphasis on a continuum of land recording. The design is only a first step toward a coherent robust framework. Some first experiences are reported, however, further suggested work includes: dissemination and awareness raising; further piloting; incorporation of institutional and political economy analysis; tailoring methods of implementation; and investigating approaches for funding, training, and material resources. Ultimately the pro-poor land recordation system should bring tenure security to the poor at faster rates and lower costs, and should thus enable a foothold on the lower rungs of the property ladder. © 2012 Elsevier Ltd. All rights reserved.

Introduction A paradigm shift has taken place within the wider global land administration community: individual land titling, on its own, cannot deliver security of tenure to the majority of people in the developing world and is slower than required (Wehrmann and Antonio, 2011; Undeland et al., 2010; Payne et al., 2009; Shipton, 2009; Jacoby and Minten, 2007; Deininger, 2003; Payne, 2002). Less than thirty percent of land is covered by some form of land registration system (Roberge, 2012; GLTN, 2012; Antonio, 2011). The amount only increased marginally since the mid 1990s (c.f. De Soto, 1993). At current rates it would take centuries to get full coverage in many countries. While there is a positive decline of global poverty rate particularly due to developments made in Eastern Asia and China, the number of people living in extreme poverty (people living on less than $1.25 USD a day) is still estimated at about 900 million and about 62 percent of the urban population in sub-Saharan Africa live in slums (United Nations, 2011). The global land administration community has accepted that the way forward to deliver security of tenure is through a continuum of land rights, which allows people to get onto the property ladder. The

∗ Corresponding author. Tel.: +31 053 4874 339; fax: +31 053 4874 575. E-mail addresses: [email protected], [email protected] (R. Bennett). 0264-8377/$ – see front matter © 2012 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.landusepol.2012.09.005

continuum argues that less conventional forms of land tenure should be recognized and afforded better forms of security and protection (Payne, 2001, 2002; UN-Habitat, 2008a; GLTN, 2012). The innovative continuum of land rights approach, if implemented at scale, will require the introduction of new forms of land registration (Van der Molen, 2006). Land registration is the aggregated processes of land adjudication, demarcation, surveying, and recording (Henssen, 2010). Here, the focus is on recording. These new forms of registration have been variously described as ‘progressive cadastres’, ‘halfway’, ‘grass root’, ‘flexible’, and ‘pro-poor’ (Henssen, 2010). Here, the terms are considered synonymous. The aim is to differentiate these new approaches from conventional land recording systems – those that were developed in Western European countries over many centuries and proliferated during global colonization (c.f. Simpson, 1976; Dale and McLaughlin, 1988, 1999; Larsson, 1991; Zevenbergen, 2003; Henssen, 2010; Williamson et al., 2010). The contemporary outcomes of these developments are highly centralized, highly accurate, and highly accessible digital land records – but only in the most developed countries. These modern systems come with their own best practices and assessment schemas (Williamson, 2001; Steudler et al., 2004a,b). Many attempts to mimic these systems in less developed, customary, or communal areas have met with mixed results (De Soto, 2000): the required institutional underpinnings are missing. Institutional economists argue these can take

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decades or even centuries to establish (c.f. North and Thomas, 1973; Williamson, 1979). Consequently, recording tools that work within the confines of existing norms and approaches to land are required. At any rate, the fundamental reasons for undertaking the land recordation process remain. As defined by Zevenbergen and Augustinus (2011), the most important ones include: • Evidence or proof of land rights including of the transaction, of the parties involved, of the land involved, and of the acceptance by the community. • Notice to the world, including the state. • The creation of ranks or priorities between different recorded documents. • An index linked to the names of the parties, which will facilitate ease of access to information. • A geometrical index, which facilitates linking the land documents to the ground. • Easier operations for (local) government for services and to organize other land management activities. • An increased level of status in the eyes of the state. • An increased level of status in the eyes of the community, depending on the acceptance by the community of the system, its presence on the ground, the land documents and other services. In addition to these benefits, a pro-poor land recordation system would also be the first step on the property ladder, and would also be a foundation for capital formation. These benefits are not automatic – certainly not for the poor. Only when the design and implementation is done in a systematic and fit-for-context manner, does land registration or recordation lead to these benefits for landholders. Increased benefits generally lead to additional design requirements in the system. These should be added step by step for a pro-poor land administration or land recordation system to keep down costs. It is not possible to deliver the equivalent benefits found in many Western systems for pro-poor land recordation systems right from the outset. We are arguing that some benefits are better than none at all, and the design proposed is both a first step toward greater benefits over time, as well as a foundation for next steps. To this end, this paper focuses on the lowest end of the design of a recordation system that targets the urban and rural poor, who are generally the majority of the population in developing countries. The key question, which this paper seeks to address, is ‘What does a pro-poor land recordation system need to look like?’ The paper aims to develop a new cut-down affordable form of a land recordation system that would make it possible for different types of land rights to be recorded, and operate within a co-management framework with the community. The paper gives an overview of the background, conceptualization process, design methodology, and the pro-poor land recordation system design itself. Materials and methods The pro-poor land recordation system outlined in this paper is a result of work championed by the Global Land Tool Network (GLTN). The pro-poor land recordation design is built on completed and on-going work on other GLTN tools such as the continuum of land rights approach (GLTN, 2008a, 2012); comanagement (UN-Habitat, 2008b, 2009); the development of pro-poor land information system ‘Social Tenure Domain Model’ (STDM) (Lemmen et al., 2007; Lemmen, 2010; Antonio, 2011); participatory enumeration (GLTN, 2010); post crisis land tools (Stanfield et al., 2007; UN-Habitat, 2007, 2010); gender evaluation (GLTN, 2009); scaling up grassroots approaches (GLTN, 2008b); and land governance (Palmer et al., 2010; Deininger et al., 2010, 2011).

The process for developing the pro-poor land recordation archetype system involved six phases (Fig. 1): conceptualization, evidence gathering, requirements, design, refinement, and dissemination. The evidence gathering phase included: an extensive literature review – including the early developments of land administration in Western countries – and documenting experiences with the design and improvement of national registry and cadastral systems in a number of countries from Eastern Europe to Africa; attendance and participation at GLTN organized workshops focused on a range of land issues; and drawing on GLTN and UN-Habitat experiences and anthropological knowledge. Following the evidence gathering process, key requirements for a pro-poor land recordation system were extracted and used to start the design. This involved articulating the key functions, processes, people, and technical tools required by the recordation system. The first cut design was sufficiently coherent for the basis of an Expert Group Meeting (EGM) on the Development of a Pro-poor Land Recordation Systems with relevant professionals, particularly the legal, notary and registry professionals, held in March 2011, in Paris. Discussions and feedback at this meeting were used to refine the model. Subsequently, a plan for dissemination, including piloting, and further system development was developed. The key results from each phase subsequent to conceptualization are now discussed. Evidence gathering and requirements The core requirements of the pro-poor land recordation system, as determined in the evidence-gathering phase, are provided in Table 1. Each is discussed individually in the sections that follow. Citizens affordability The need for alternative approaches to land tenure security provision was recognized in the 2000s. Influential works by Payne (2001), Payne et al. (2009) and Deininger (2003), among others, highlighted the limitations of existing approaches: system affordability at the grassroots level was a key issue. In response, exemplar projects emerged in developing countries. These utilized simplified processes and community involvement to achieve far cheaper recordation results (c.f. Deininger et al., 2008; Lemmen and Zevenbergen, 2010). A first set of generic requirements and potential solutions or approaches also emerged (GLTN, 2009; Toulmin, 2009; Benjaminsen et al., 2009; Augustinus and Benschop, 2007; Cook, 2007; and others). These example projects and early models provided starting points for a pro-poor recordation system design. Another important starting point was that the system had to be accessible to the poor, that is, it should be ‘pro-poor’ in nature. While poverty has many dimensions, Osiris Blanco (2002), among others, defines what is meant by the term ‘poor’ in the contemporary context. It can be seen as existence on one dollar a day (1985 levels), or $1.25USD to $2.00USD a day in more recent times. The term ‘pro-poor’ gained popularity in the early 2000s, particularly in development studies and economics. It was used to illustrate a departure from ‘trickle down’ theories on economic growth: ‘pro-poor’ growth favored, or at least better recognized, measuring growth in terms of the ‘poor’ within an economy (Kakwani and Pernia, 2000; Ravallion and Chen, 2003). The term then gained more widespread use in other study areas including tourism, health, agriculture, and land tenure management. With respect to land, the key message from existing literature, definitions, and metrics was that the poor cannot afford land documents delivered by the conventional systems, which cost between $27USD and $603USD (even $2,800USD) a parcel during adjudication in Latin America (Barnes,

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Fig. 1. Development process for the pro-poor land recordation system.

2008). A pro-poor system needs to be radically cheaper, in the order of $1USD a parcel, as found in Amhara, Ethiopia (Deininger et al., 2008). Additionally, states or state governments should refrain from charging excessive fees and taxes on the initial registration and early transactions of selected poor groups. Only once the system has stabilized should such fees and taxes be applied. State affordability Many governments cannot afford to give land documents to all citizens. The cost of subsidizing most people to obtain land documents through the conventional system is prohibitive, particularly as it usually involves a range of costly private sector professional fees. If government officials undertake the bulk of the work generally there are insufficient government employees who are capable and sufficiently motivated to run the system at the scale necessary to deliver to all citizens. Training options are limited, and because of low government salaries those with better training often leave for the private sector, also in other countries. Outsourcing tasks to the private sector and facilitation fees place the cost burden on the clients. Then the poor cannot afford these services. Finally, governments often prioritize other issues such as health, sanitation, education and transport: departments of land are seldom among the most powerful or resourced of agencies. A pro-poor system needs to be designed which is cheaper. It must enable governments to scale up their work to reach the majority of their citizens. Complex layered tenures Up to 1900, customary and other informal tenure systems were often considered to be less sophisticated than formal tenures in the Western world. However, this is untrue: customary and informal systems encompass a much wider complexity of rights over

resources by different people than found in individualized Western systems. The web of tenures found in these societies often supplies a safety net for the most vulnerable people in the community (e.g. widows) by giving them access to limited benefits (secondary rights) on someone else’s land (Deininger, 2003). The tenure complexities often cater for geographical and climatic circumstances. Often rights have a stronger time dimension than ownership or even leasehold. Attempts to codify these social tenures would reduce their flexibility. Additionally, codification with conventional land registration systems or simplified statutory land tenure types would set aside secondary rights. This would have a negative impact on the livelihoods of the vulnerable. In many countries any attempt at national codification would be impossible because of the range of diversity of social tenure types (e.g. Namibia, Kenya (Fourie, 2003)). This is important even in peri-urban areas, where customary tenures are often adapted for urban situations (Arko-Adjei, 2011). A requirement of the system is therefore to use the community to describe the tenure system and the kinds of evidence of the land rights currently in use. This would encourage the introduction of new forms of legal evidence into the system, which fit more with the social tenures of local communities. It will also allow evidence types linked to the land records to be altered over time as the communities’ land tenure evolves, as found in the flexible land tenure system design in the new Namibian Flexible Land Tenure Law 2012. These kinds of activities would make the land recordation system evolutionary and more appropriate at any particular moment. The pro-poor system records would have less clarity by comparison to Western land recordation systems that are considered as stand-alone evidence of land rights. Co-management by the community through its leaders (as identified later) would be important for risk management and clarifying the information prior to its recordation. While some risk may remain, this is limited through

Table 1 Core requirements and key supporting literature. No.

Requirement

Description

Evidence

1

Grassroots affordability

2

State affordability

Amhara, Ethiopia (c.f. Deininger et al., 2008) UNECA (1998)

3

Complex layered tenures

4

Preventative justice

5

Optional sporadic or systematic implementation Flexible index map

Affordable to the poorest in the state (i.e. an income of $1–2/day), in the order of $1 per parcel Affordable to the state in terms of start-up and ongoing sustainability Enable community definition and recordation of existing tenures in use Facilitation of preventative justice is the underlying driver, not recordation in itself Recordation processes should be implementable in a sporadic fashion across the state The most fit-for-purpose should be utilized when developing an index map All records should be freely available and all people should have equal access to recordation. Local community and leaders play a joint role with local land office in delivering land recordation function

6 7 8

Transparent, inclusive, and equitable Co-management

Arko-Adjei (2011) and Fourie (1994) Uganda (Deininger et al., 2006); DRC (Sylla, 2012) Namibia (UN-Habitat, 2010) STDM (Lemmen, 2010) Alberts et al. (1996) MacFadyen et al. (2005) and Transparency International (2009)

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making land recordation part of a wider system of land governance and land management, which builds on the security of tenure that was supplied by the community prior to the creation of the formal or legal land records. Such a land recordation system would contribute much more to broader land management. Delivery of preventative justice A key reason for introducing land recordation is for preventive justice: society invests in preventing conflict ahead of time by creating land records which show evidence of land rights and contractual relations (comparable to the Latin Notary system in e.g. France). In this way, when two parties (including advisors) transfer land between them, objective information is available which clarifies the information about the rights and contractual relations, and limits the need to go to court to obtain a final agreement (Zevenbergen, 2003). Therefore, the primary task of such a transaction process is about insuring an equitable process in which both parties understand what they are doing. That is, deliver preventive justice. Of course, evidence of an equitable process has to be recorded so that others can view it, particularly if the transacting parties are not available, or willing, at a later stage to agree on what was done. Also the recording of this information makes it more easily accessible to any future prudent actor, be it a buyer or a government agency. The information could be incomplete or even wrong: the need to enable the inclusion of alternative evidence is also included. A key aspect of any pro-poor land recordation system is that it should have an impact on both existing conflicts and in the prevention of new conflicts. The system would need to include a credible process in which all parties understand what they are doing. Land records would need to document and support the process. The role of the community leaders as part of a co-management approach would be critical in this. Consideration of sporadic or systematic implementation The number of land rights that should be recorded in a country is usually of the same order as the population of that country (Steudler et al., 2004b). This means that a lot of work must be done before a country is fully covered by a land recordation system. Adjudication started in Western Europe around 1807, and was completed for the Netherlands (a small country) in 1831 and for France in 1850. These experiences show how long full coverage can take, even with the lower population numbers of those times. There is evidence in many parts of the world that people are increasingly using some kind of informal/formal paper document when they transfer land rights. In one small irrigation scheme adjacent to informal ribbon development in the Mount Kenya area, a chief reported settling conflicts using records that had been kept by successive chiefs of the area for over 40 years (Augustinus, 2012). The proposed pro-poor system aims to build on this trend and take it one step further, without falling into the trap of an overdesigned national solution. It is suggested that the approach would be sporadic at first particularly when resources are not available. This would allow people to join when they felt the need. In parallel, awareness raising and empowerment through knowledge should take place so that people could become aware of what the system had to offer. Most people would probably enter the system when involved with a transfer, such as a decision to sell. Such transactions are usually relatively easy to capture and record. Death, marriage and divorce are traditionally much more difficult to capture in land systems. Most Western countries are still struggling to do it successfully (c.f. Kolkman et al., 2010). Depending on the local circumstances a more systematic approach might be necessary. Participatory enumeration (GLTN, 2010), community mapping (Huairou Commission) and

participatory rural appraisal process (Augustinus, 2012) have shown that when communities are organized they can undertake systematic identification of land rights and natural resource use rights. In regard to the pro-poor land recordation system, a more systematic approach to the creation of records can also be done when the community is ready for it. In some communities it might not be possible to start with a sporadic approach, because of suspicion between neighbors, and the first step will have to be systematic. Although cheaper per property (due to economies of scale), this requires more upfront investment. A requirement for the design is that even if the proposed pro-poor approach is used, it will not be possible to cover the whole country in a few years and areas of high priority will have to be chosen for a more systematic approach. Additionally, the system should build on the paper documents already being used by communities and should be implemented either sporadically or systematically, depending on community demand and resources that can be mobilized. As an example, field work on supporting river basin management, irrigation and forest projects in Mount Kenya as supported by the International Fund for Agricultural Development (IFAD), showed that co-management of land and natural resources already exists between the Ministry of Water and Irrigation and different communities of natural resource users. However, these projects struggle with going to appropriate scale because of limitations in the conventional land administration system and some institutional issues. They struggle to get composite maps of the mountain and its surrounding populations, which is the required unit of analysis for management, as well as composite and coordinated land use plans. More importantly for this paper, access to cadastral information is poor, and is not mapped in ways required. Also, the requisite recordation of land in regard to dams, boreholes, and so on, is not available – although it is needed for the Ministry of Water and Irrigation’s management. Alternative approaches, such as the pro-poor land recordation system design discussed here, could be built on top of the existing co-management structures, water and forest governance approaches and informal records to improve sustainability and scalability for the management of the river basin and forest of Mount Kenya and its adjacent human settlements (Augustinus, 2012). Plans are underway for GLTN to learn from IFAD supported projects and then start testing the design. Flexible spatial index map An important weakness of a simple land recordation system, like a basic deeds registration system, is that the information on the land document is not sufficient to facilitate the identification on the ground of the land described in the document. Sometimes several documents describe the same parcel of land differently. The solution is a simple geometrical index (‘basic map’) as a support to a community witness system of where boundaries are located. A requirement for the system is that this geometric index is fit-for-purpose and cheap to create. Therefore, a range of options should be available including: participatory mapping; participatory Geographical Information Systems (p-mapping/pGIS) such as STDM (Lemmen et al., 2007); and the use of base maps or satellite imagery, including maps sourced from the internet such as OpenStreetMap. Sketch maps are frequently used at the local level. Anecdotal evidence demonstrates how Indonesia’s tax authority relied on sketch maps for decades, within a locally surveyed outside figure of a village, for their 70 million tax parcels. Additionally, certain maps of an area may already be available, can be easily accessed, and could be utilized. It may not be possible to have any form of spatial index at the beginning, because of cost and technical complexity. However, a co-management and witness system, together with the planned small size of the land records’ office would be able to fill the gap

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and ensure that the information on the land records (without a spatial index) will be able to be linked to parcels on the ground to some degree. Once the community is ready and the competence is available, an enumeration, perhaps including some mapping, should be done to increase the clarity of the records. The next step would be a simple geometric index. Transparency, inclusivity and equity Conventional land registration and administration systems are generally not pro-poor. They are also not transparent partly because the procedures are unclear, and partly because it is difficult for poor people to access the information, and expensive intermediaries need to be hired to fill this gap (Wehrmann and Antonio, 2011). In addition, the supply of land documents is limited, leading to a supply gap relative to the demand, which in turn encourages facilitation fees, which in turn excludes the poor. A requirement of the proposed system is to be inclusive and available to the poor. It is therefore critical that the pro-poor land recordation system is transparent and equitable. Information should be freely accessible, which should make it harder for elites to manipulate the land records or the land ownership. Accessible records will also make it possible for (local) people to check their tacit and local knowledge against what is documented, without using external help (e.g. NGOs and professionals). In regard to equitability, not all people will hold the same amount of land, but all people should have an opportunity for their interests in land to be recorded. Women and men should be treated equally in regard to this recordation, but community capacity development on this issue might be required in some communities. Age, gender, marital status and ethnicity should not be a barrier to whether or not something is recorded. It should be possible to record all the local types of interests, including secondary rights. The existence of a recorded primary right should not alter the ability to record an existing secondary right that is acknowledged by the community, a common problem of conventional systems. Finally, a lot of the certainty linked to the paper trail of the formal system is already embedded in the social structures of local communities, especially when they are close knit and/or not too large. Building on these social structures rather than strict paper trails is critical to the creation of a pro-poor system that needs to have simple, quick and cheap routine approaches, and ones that avoid expensive experts, facilitation fees and formal fees. Co-management The term co-management initially gained currency in the field of natural resources, where it is understood as a partnership arrangement between a community of local resource users and other primary stakeholders who share responsibility and authority for resource management (MacFadyen et al., 2005; as quoted in GLTN, 2010). The terms of the arrangement have to be carefully negotiated and maintained ensuring that the roles, responsibilities and contributions of the parties are clear. Also there needs to be clarity around the storage and ownership of data for all parties and that the expectations of the different parties are realistic. Critically the parties must be able to openly discuss the power relations between them. Such a co-management approach could have a range of benefits for a land recordation system, including increasing coverage, filling capacity and resource gaps, enabling access to government data, providing access to land administration innovations, monitoring inclusion and ensuring protection of vulnerable groups and management of conflicts and ensuring sustainability (GLTN, 2010). The co-management design features in an affordable cut down version of a land recordation system would take a range of forms such

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as identity witnessing, evidence creation, building the currency and legitimacy of the land records, para-legal aid, dispute resolution, capacity building and political support. The Mount Kenya field research validates all these design aspects. It also shows that both land and natural resources can, and should be, managed through a co-management approach. This would mean, in certain circumstances, including enforcement of riparian rights, natural resources access, land uses within the forest reserve, and boundaries between game reserves and human settlement (Augustinus, 2012). Thus, the community, and particularly its leaders, such as local government leaders, community based leaders, NGOs’ leaders, should carry out parts of the land recordation system tasks. This will make the system more affordable to the poor, particularly by cutting down the large amount of professional time that is usually involved. Obviously this approach is as strong as the community leadership on which it relies. If no clear sense of community exists and/or leadership is contested in a community, this approach cannot easily be applied, unless it emerges quickly and fairly. Cohesive communities can also be created around access to public goods including natural resources or irrigation schemes. For example, in Mount Kenya people have joined one of 16 Community Forestry Associations. In one area they are allowed to grow crops on land gazetted as forest reserve: they take responsibility for re-foresting the mountain in the same area (Augustinus, 2012). When community leadership is more a local and powerful elite, rather than a benevolent group representative, which is also not unusual, strong checks and balances under co-management are needed to reach equitability and to protect vulnerable groups (Arko-Adjei, 2011). With regards to local forms of legal evidence, communities are the repositories of local knowledge about forms of evidence in regard to the range of land rights such as secondary rights, overlapping rights and temporary rights. They are also able to interpret the evolving nature of the evidence. The community leaders, as witnesses to transactions/transfers could create the relevant forms of evidence at transfer. They would also be vital in the identification of the individuals selling and buying the property, and would also be able to make the status of the seller and buyer clear. This has been seen to be particularly important in countries such as Ivory Coast where land was ‘sold’ to immigrants, but when the immigrant sold to other buyers the traditional owners claimed that they still held the underlying rights (Comby, 2010). A pro-poor land recordation system would need to be able to interpret and record these kind of nuanced land rights as well. This design already exists in the flexible land tenure system recently adopted by Namibia for its urban informal settlements. In regard to the legitimacy of the land records, the credibility and acceptability of the land recordation system would rest both on the state structure and the community leadership structure. This will make it possible to build customary and informal social tenure approaches into the legal system over time.

System design and refinement System design was based on the outputs from the requirements phase. Subsequent refinement was based on the outcomes of the GLTN organized Expert Group Meeting. The meeting’s discussions supported the initial design, but highlighted that a number of issues needed further study to support a more comprehensive design. These included a clear institutional perspective on communities, as well as the political economy within such a community, and between state and community, when introducing a pro-poor land recordation system. Ten essential design elements or principles were identified and described. These were refined following the Expert Group Meeting. The refined design is presented in Fig. 2.

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Fig. 2. The ten design elements of the pro-poor land recordation system (re-worked from Williamson et al., 2010).

The components of Williamson et al.’s (2010) Land Management Paradigm are used as a basis for articulating the pro-poor land recordation system design elements. The paradigm reflects currently accepted global norms in land administration system design. Its generic nature provides a familiar, but flexible conceptual basis for developing a pro-poor design. The paradigm suggests a country or community context should be used to inform the design of an agreed land policy, subsequent land administration functions, and a supporting land information infrastructure. Strong relationships between these components should support the delivery of sustainability within a jurisdiction. The pro-poor land recordation system can be seen as a subset of Williamson et al.’s (2010) more generic vision: the same core elements still apply. This is important to ensure that the pro-poor system design lays a foundation for movement along the continuum of land rights, without having to jump out of one system into another – a common problem in the design of new forms of land tenure – for example Tanzania’s residential licenses or Zambia’s occupancy licenses. However, ten special design elements or principles are considered necessary in the pro-poor recordation context: (1) assessment of national and local conditions; (2) building on community tenure practices; (3) introduction of a formalization process and a land officer; (4) recordation; (5) land recording, indexing and assigning a record keeper; (6) inspection; (7) use of multiple sources of evidence; (8) dispute resolution; (9) system ownership by state and local community; and (10) emphasis on a continuum of land recording. There are links and overlaps between these elements – indeed many are sequential in implementation, however each is now discussed separately. Assessment of national and community conditions Prior to the implementation of any pro-poor land recordation system an in-country assessment should be undertaken both at national and local or community level. The purpose of the

assessment would be to: ascertain whether such a system is needed and useful, and to adapt the design to national and local conditions. At the national level a range of issues need to be assessed. Of key importance will be ascertaining government buy-in to the idea of a pro-poor land recordation system. The legal framework also needs assessment to see how pro-poor it is in regard to security of tenure for the poor and to land records. The extent to which the elements of the pro-poor land recordation design fit with the existing legal framework of the country, and the area where the pro-poor land recordation system might be implemented, will also need to be assessed. The governance and institutional shape of government should be assessed to identify the best location for the records and record keeper. In the Mount Kenya case, the Ministry of Water and Irrigation local district offices may well be the right place to locate and manage the records. In Eastern DRC, because of the weakness of government at the local level, non-state actors including the United Nations are maintaining the land records associated with land disputes. Other legal issues which will need to be assessed, also in regard to the local area, include: the extent and forms of legal pluralism; the extent to which the law is flexible; whether the law prohibits such a land record system; whether prescription is available; existing forms of legal evidence and tenure types; family law and practice; how administrative law could be possibly used; and a review of customary practice through a human rights lens. The local level assessment should cover a range of items. Of utmost importance is buy-in by the local community. This requires entry points to be identified and a user needs and requirement assessment to be undertaken. The local assessment will also need to include the identification of local initiatives, and local processes and practice associated with land, as well as the land’s legal status. An assessment should be taken of local administrative capacity as well as co-management capacity, including the status of community leadership. Also, a risk assessment, particularly of the local political economy, needs to be undertaken which includes actors,

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institutions and patron-client relationships, corruption issues, and the contradictory land law systems that impact the area. The often over lapping institutional arrangements in the area including responsibilities and functions of the different decentralized government departments, which might house the pro-poor land recordation system, and the impact of external factors in the area, including the commodification of the land also require assessment. The design will have to be adapted for national and local conditions drawing on these assessments. Building on community tenure practices The pro-poor land recordation system should be built on existing local approaches. In many situations the social land tenure system includes elements that should form an integral part of the pro-poor system. Community rules for identifying leaders should be followed which could be a chief and elders in customary areas, and in informal areas local community leaders, ward or block heads, as well as possible special land committees working under the leader/s. In some communities religious leaders may be important. These types of leaders know the local land tenure rules and their current interpretation in changing circumstances. Even where irrigation schemes have set aside customary practices, over time these can re-emerge and the elders can again become key (Liversage, 2011). They also know the position and land interests of the different people in the community. During a transaction the leadership will know whether the person selling the land is entitled to sell it, and whether the buyer meets the criteria to acquire the rights. They will also know the family law appropriate to the parties. For example, a lineage might have a pre-emption right when land is being sold, or the land rights of orphans when there is a sale. Leaders will also be used to acting as witnesses to the parties’ intentions and recording the knowledge in their heads and/or on paper. Such forms of leadership are more likely to be more cohesive in rural areas than urban areas in general, however informal settlements in urban areas are also often cohesive (Fourie, 1994, 2003). Not all communities have stable leaders, or leaders who give equal and fair treatment to members of the community. The selection of the area for implementing the pro-poor land recordation system must seriously consider this situation. However, the propoor system needs to be built at community level because the conventional land registration system has not been able to cater for the needs of the poor. The capacity of leaders and communities will need to be developed through awareness creation, manuals, training and advice by the (bare foot) land officer and/or the local record keeper. This will take time, but it is the only way forward to extend security of tenure to the poor and build the systems over time. Field experience in Mount Kenya shows that it is possible, under the right circumstances, for government programs to build capacity in communities in a sustainable way. Kenya had a new 2002 Water Act and 2005 Forest Act that created the right legal framework for government officials to engage in co-management of communities and training communities around the management of land and natural resources (Augustinus, 2012).

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(e.g. like expecting the inclusion of both spouses by leaving specific space for two names); and facilitate the later recording, processing and re-use. The forms should accommodate diversity and overlap in tenure arrangements and family relations, but bring clarity if, and when, possible. Ideally, filling in the form should be supported, or even be done, by a neutral person with more appropriate knowledge than average. The (barefoot) land officer could also act as the secretary to the communities’ leaders, but should try and maintain a neutral position. Their primary task is to identify clearly the intentions of buyer, seller and community, and have them documented correctly and understandably. Their role is not to decide about the relationship between the parties or the changes being negotiated, but just to facilitate. Advice on adherence to broader policies, such as national laws, can be added to the responsibility of the land officer in due course, but should not be rigid as this could stifle the land recordation system in its early stages. The prime qualifications of the land officer at the outset would be literacy combined with acceptance within, and reasonable knowledge of, the community and its rules. Full capacity will not be possible at the outset, and capacity issues will be an issue right from the beginning. The knowledge of the land officers can be increased over time by offering additional training, for example, through information materials and/or radio, and through mobile teams of trainers. Their funding as well as their appointment will depend on local circumstances and could be based in the municipality, district council, NGO and/or the community (c.f. Mitchell et al., 2011). The governance aspect needs to be dealt with appropriately; otherwise informal fees could appear in this pro-poor system. In terms of the co-management arrangements it would be necessary to get buy-in from both the state and the community. Recordation The next step is the recordation of the information in the land recordation system. This is only possible if standardized forms and the land officer are already operating. The filled in forms would be presented to the local records office at community level. The ideal location for the records would differ according to local circumstances. In rural areas with a tribal structure not every village will need to have a land records’ office. In larger cities, different districts, or slums, or areas, which have been settled, a unique own land records area is needed. In Namibia the lowest form of land office is located within the municipality. An important criterion when designing the boundaries of the jurisdiction of the records is that the community using the records must feel ownership of the records and that the records do not just belong to a higher authority. A key function of the land officer is to take the standardized form to the land records’ office. At the land records office the form will be received by the record keeper. The record keeper’s role will include undertaking a very quick check to identify serious mistakes and they may also use this opportunity to build capacity in the land officer for the next case by giving advice. Although there are some overlaps in the functions of the land officer and the record keeper this is necessary to create enough checks and balances in the system.

Introduction of a formalization process and a land officer Land recording, indexing and assigning a record keeper There is an increasing trend for non-formal land transactions to be recorded on paper. The pro-poor land record design is intended to build on this, and improve it where it exists. The first step would be the use of standardized forms being used for transactions (pre-recordation). Standard formats will: assist people to remember certain elements and transact more efficiently; allow for the slow introduction of equitable policies through for example, the manner in which items on the form are formulated

The record keeper will store the forms in an orderly fashion, normally by order of receiving them and numbering them in such a way that they can be easily retrieved. The record keeper will keep indexes of the forms. They will make a note of each form in a number of indexes linked to the forms. The first set of indexes is the name index, where one can search for a person by name, both as a seller and as a buyer. This can be

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challenging if the writing of names is not standardized, or when different scripts are used and transcription rules vary. It is prudent to enter the same transaction under two separate spellings rather than run the risk of not finding the name at a later date. Indexing can be done by using a card index box based system, or a bound book. The former is more flexible but can be manipulated more easily. Auxiliary indexes can also be set up in this way. The second set of indexes is about the land. This index is considered vital in any modern land system. Land is more stable than people and therefore safer to use as the base of the documentation system. Each piece of land that is linked to a form or transaction should receive a number that is also used for all subsequent forms linked to the same piece of land. The weakness of this indexing system is how to establish whether a subsequent transaction affects the same land or not. This can be improved (definitely in urban areas) by placing the number visibly on the house structure. A further improvement can be made by putting the number also on some kind of graphical index (map). A range of methods can be used, including existing maps and plans. It is possible to derive a base map of a semi-developed area from a satellite image, and supply a paper print out to put the numbers on, and make subsequent changes, such as subdivisions. After a while this approach becomes more difficult as the area changes, densifies and is (re) developed. A comprehensive cadastral map with subdivision surveys should not be considered at this stage. Again the first steps should be modest, and use whatever is available or can be done realistically. Inspection As indicated, the pro-poor system should have buy-in from both the community and the state. The state should have regional or national inspection mobile units which travel to all the pro-poor systems to make inspections. They could undertake training and capacity development of the record keepers and land officers, based on weaknesses noticed in the records. They could also make backups of the records to limit the impact of disasters, violence or accidental fires. The community leadership, be it local government, customary or informal, could also play an inspection role, as and when necessary. This would show mutual inter-dependence and be vital to improved governance. Use of multiple sources of evidence The pro-poor design is certainly not a title system. Nor is it a fully fledged deeds system. Evidence which is counter to that on the recorded land documents should still be allowed in the pro-poor system. Over time the information on the records will be seen as more certain if recorded information is perceived as more credible relative to verbal information, and if earlier recorded information has priority over information that is recorded later. Some of these advantages can also be introduced at later stages. They should fit the way the community understands its tenure system and the role the land records should play in it. Whatever the status of the evidence, people who start a transaction will benefit from the land record information, as they will be able to undertake a form of status check on the land. Zevenbergen and Burns (2010) demonstrate this in the case of Timor Leste. Dispute resolution Land conflict is common and disputes arise frequently. Dispute resolution mechanisms need to be put in place. Many communities have traditional, local or alternative dispute resolution mechanisms. In a large government owned irrigation scheme near Mount Kenya run by a manager from the Ministry of Water and Irrigation, there is a hierarchy for dispute resolution starting with the elders

and finally ending at the High Court (Augustinus, 2012). The proposed pro-poor system could build on these systems. However, some communities might not have existing systems and a dispute resolution system might need to be set up to deal with conflicting opinions on who has access to which land, and on what rules to apply, and how to interpret them. UN-Habitat’s experience with conflict mediation in Eastern DRC is that even in areas of violent conflict it is possible to come to agreements around rules in regard to land disputes (Sylla, 2012). The dispute resolution mechanism should be acceptable to the disputing parties and the wider community, including those who make and implement the decisions. The dispute resolution mechanisms should be coordinated with the land records’ office, both to assist in making the decisions as well as in the recording of the decisions. The records should be one source of evidence. During adjudication most of the (dormant) conflicts will emerge and should be settled. This will mean that fewer conflicts will emerge after such an adjudication exercise. Again it will depend on local conditions as to whether the community goes through a systematic adjudication or deals with disputes on a sporadic basis. System ownership by state and local community For the land records to contribute to better governance of land for the poor it will be essential that the land recordation system be owned both by the local community and by the state through a co-management arrangement. Emphasis on continuum of land recording The pro-poor land recordation system should be the first step on the property ladder. The se pro-poor land records should be part of a continuum of land recording. This idea was originally outlined by Van der Molen (2006). The pro-poor land recordation system under discussion here is one step before the Van der Molen approach. The pro-poor system would be built on existing paper based approaches being used in communities and would be cheap and simple enough for local experts. Taking the step from informal paper systems into a pro-poor land recordation system would contribute to increased recognition of the communities’ land rights by the state and facilitate local government land management activities. Both the exact shape of the pro-poor land recordation system and the point at which the pro-poor system would be upgraded to another major level would have to be determined during piloting and scaling and would also depend on the local situation. While the legal-administrative and mapping sides of the land records can evolve at different speeds, they should not get completely out of sync. Dissemination and forward plan The core elements of a pro-poor land recordation system have been outlined. However, these cannot be seen as an end-point: without dissemination, piloting and implementation such designs remain in the theoretical realm. To this end, a vision for dissemination is articulated. In terms of dissemination, it is envisaged the design could serve as the basis for a larger consultation with professional organizations and other experts. Additional studies on institutional and political economy issues are also foreseen (see below). Parallel to these activities, awareness-raising and advocacy is needed for the need of a pro-poor land recordation system when going to scale on a continuum of rights approach. Based on these further inputs the design should be further expanded and refined. The pro-poor land

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recordation system should be piloted at country level, documented, before full-scale implementation within jurisdictions. In terms of further development, the design is only seen as a first step in the process of developing a legally robust pro-poor land recordation system. As such a number of issues require more attention, and a number of design elements require further validation. Any missing or extra design elements require identification. For example, reliance on possession as a formation of the property concept requires further investigation. Additionally, whether the existing design elements combine as a coherent package needs assessment. A number of specific items also require further attention. These are now discussed. First, political will is vital for the success and sustainability of this approach. “Land rights are social conventions about the distribution of benefits from land use” (Deininger, N.D.). From another angle, this means that political elites will often try and set up a land registry or capture the land registry for their own purposes – that is to distribute the land rights for their own benefit. This effectively means that to protect the land rights of the poor it is necessary, but not sufficient, to place these rights in a land recordation system. Such a system does not exist in isolation from the political system. Therefore to ensure security of tenure of the poor, the poor need to also be linked to and mobilized around the land records’ office. This means that both political understanding and political will by the community and its leaders relative to the system need to become part of the system design and implementation. This aspect is key to the success and sustainability of a pro-poor system and requires further exploration. Second, more attention is needed for assessing the different conditions between and within countries and tailoring the design to cope with these, and ultimately for implementation issues like funding, training, awareness and material resources. Third, in addition to the thorough assessment of national and local conditions suggested in ‘Assessment of national and community conditions’ section, further work is needed on implementation issues like funding, training, awareness and material resources.

Concluding remarks The global land community has accepted that individual land titling on its own cannot deliver security of tenure to the majority of people in the world in a timely fashion: a continuum of land rights needs to be adopted by countries. Any country adopting a continuum of land rights at scale also for the poor will need to introduce some form of land recordation. This paper and the design elements discussed above aimed to outline a possible approach. The requirements of the system were drawn from lessons learned with conventional systems, as well as experience by professionals, civil society and researchers on the way the social land tenures of the poor, operate both in customary and informal areas, as well as with participatory enumeration. Lessons were also incorporated from piloting the Social Tenure Domain Model (a pro-poor land information system), and from understanding how land systems break down under conflict. General requirements were found to be: citizens affordability, state affordability, provision for complex layered tenures, delivery of preventative justice, consideration of sporadic or systematic implementation, a flexible index map, transparency, inclusiveness, equitability, comanagement, and delivery of generic benefits. The resultant design consisted of ten design elements: assessment of national and local conditions; building on community tenure practices; introduction of formalization and a land officer; recordation; land records keeping, indexing and mandating a record keeper; inspection; enabling multiple sources of evidence;

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dispute resolution; system ownership by state and local community; and emphasizing a continuum of land records. Further work includes: performing ongoing refinement with larger stakeholder groups; conducting awareness raising activities, studying local projects that resemble the design; piloting; incorporating understandings of institutions and political economy into the system; designing methods for tailoring the design in different contexts; and investigating approaches for funding, training, and material resources. Many of the positions held in the paper are in reality much more nuanced than presented and there are a variety of options and variables which need to be thought through together in any particular local situation. Finally, the design represents only the first step toward creation of a sufficiently coherent framework, based on knowledge and experience to focus the debate for the next steps. Acknowledgements This paper would not have been possible without the support of the Swedish and Norwegian Governments to GLTN, UN-Habitat and ITC, University of Twente. This paper also benefited from the contribution of the participants from the GLTN organized EGM in March 2011. References Alberts, R., Fourie, C., Hojgaard, P.D., Shitundene, J., Corbett, A., Latsky, J., 1996. Development of a decentralised land registration system for the urban poor and informal settlements, Discussion paper on Land Management and Local Level Registries, Ministry of Lands, Resettlement and Rehabilitation, Windhoek, Namibia, funded by Ibis Wus/Danida (unpublished). Antonio, D., 2011. Social Tenure Domain Model: towards addressing the information requirements of informal settlements. Paper presented at FIG Working Week 2011, ‘Bridging the Gap Between Cultures’, Marrakech, Morocco, 18–22 May 2012. Arko-Adjei, A., 2011. Adapting Land Administration to the Institutional Framework of Customary Tenure – Case of peri-urban Ghana, Phd TU Delft, The Netherlands. Augustinus, C., Benschop, M., 2007. Security of Tenure – Best Practices. UN-Habitat, Nairobi, Kenya. Augustinus, C., 2012. Field notes from IFAD MKEPP project (unpublished). Barnes, G., 2008. Developing cost-effective and resilient land administration systems in Latin America. FIG Article of the Month, January, http://www.fig.net/pub/ monthly articles/january 2008/january 2008 barnes.html Benjaminsen, T.A., Holden, S., Lund, C., Sjaastad, E., 2009. Formalisation of land rights: some empirical evidence from Mali, Niger and South Africa. Land Use Policy 26 (1), 28–35. Comby, J., 2010. Securiser les mutations dans le ville africaines et leurs peripheries, Presentation at Groupe d’Echange et de Recherche Technologiques Forum ‘Foncier et Developpement’, Paris, 9–10 November 2010. Cook, C., 2007. Community Land Partnership, GLTN Website. Dale, P., McLaughlin, J., 1988. Land Information Management. Clarendon Press, United Kingdom. Dale, P., McLaughlin, J.D., 1999. Land Administration. Oxford University Press, New York, United States. Deininger, K., 2003. Land Policies for Growth and Poverty Reduction. A World Bank Policy Research Report. Oxford University Press, Oxford. Deininger, K., Ayalew, D.A., Yamano, T., 2006. Legal knowledge and economic development: The case of land rights in Uganda, World Bank Policy Research Working Paper 3868, March 2006. Deininger, K., Ayalew, D.A., Holden, S., Zevenbergen, J.A., 2008. Rural land certification in Ethiopia: process, initial impact, and implications for other African countries. World Development 36 (10), 1786–1812. Deininger, K., Augustinus, C., Enemark, E., Munro-Faure, P. (Eds.), 2010. Innovations in Land Rights Recognition, Administration, and Governance. The World Bank http://siteresources.worldbank.org/INTARD/Resources/3358071174581646324/InnovLandRightsRecog.pdf Deininger, K., Selod, H., Burns, A., 2011. The Land Governance Assessment Framework: Identifying and Monitoring Good Practice in the Land Sector. The World Bank, Washington. Deininger, K., N.D. Quote on a poster produced by TU Dortmund. De Soto, H., 1993. “The Missing Ingredient”, The Economist 11 September 1993, Supplement “The Future Surveyed.”. De Soto, H., 2000, September. The Mystery of Capital, 1st ed. Basic Books. Fourie, C., 1994. A new approach to the Zulu land tenure system: an historical anthropological explanation of the development of an informal settlement, Ph.D. social anthropology, 1994, Rhodes, South Africa. Fourie, C., 2003. Altering Regulatory Frameworks in Namibia: Merging Informal and Formal Land Tenures. Paper presented at Lincoln Institute of Land, Harvard

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