In a country where 65% of the population is illiterate, verbal evidence is now accepted as proof of ownership. Mercedes Sayagues reports
Mozambiques new land Bill, approved by Parliament in July, amounts to a massive victory for ordinary peasants and contains a landmark provision that makes it unique among land legislation in Southern Africa.
The Bill recognises land rights acquired through occupancy, with or without a title deed. This should prevent mass eviction of peasants and other negative effects of skewed land distribution, as happened in neighbouring countries.
Occupation rights are, however, conditional upon being in good faith, for a minimum of 10 years, certified by community members. In a major departure from colonial law, verbal evidence is accepted as proof a breakthrough for peasants when 62% of adults are illiterate.
Land continues to be the property of the state. User rights and title deeds are granted to individuals, communities and businesses. User rights can be transferred or inherited, but not sold or mortgaged.
A community is any group that defines itself as such its members are those who sign their names to it. Land in use comprises cultivated land, hunting, fishing and collection territories and sacred places.
Occupation rights, however, will not be recognised for land not in the national cadastre (register of property) or already parceled out. This means that occupation of land over which somebody else holds title deeds will not be recognised.
These simple and clear measures guarantee smallholders access to land and security of tenure. At the same time, the Bill seeks to protect the interests of agricultural investors.
Access to land is guaranteed to everyone; so are the rights to title deeds already granted.
But huge concessions (such as 236 000ha granted to American developer James Blanchard in Maputo province for a theme park and game reserve and 220 000ha to Mosagrius for white South African farmers settling in Niassa province) cannot be given until a survey of local people has been carried out to ensure their rights and interests are protected.
Women stand to gain a lot from this law. Equality between men and women, enshrined in the Constitution, will apply to title deeds and inheritance rights in both patrilineal and matrilineal societies. This means that a widow or divorced woman cannot be evicted from the land she has worked for more than 10 years.
The Bill was approved after two years of intense public debate. This was, in itself, an excellent democratic exercise, involving a variety of stakeholders speaking out at public forums. Lobbying by civil society reached levels not experienced before in Mozambiques young democracy. Changes and amendments were negotiated throughout the process, right into Parliament.
Broadly, the positions that emerged could be sketched as follows:
* Ruling party Frelimos nomenclature, heavily into acquiring land concessions and title deeds for speculation, wanted Portuguese-style indigenous reserves, or Zimbabwe-style communal areas, apart from commercial farms.
* United States Aid and the Land Tenure Centre recommended privatisation of land as the solution to investment and environmental problems.
* Partisans of decentralisation and community-based schemes wanted more power for the regulos (traditional chiefs) over demarcation and concessions. Some non- governmental organisations (NGOs) favoured this approach.
* Peasant groups, the Womens Forum and academics supported recognition of effective occupancy as a right to the land for individuals and communities.
About 600 people, mostly of the last two groups, marched through the streets of Maputo in support of peasants land rights during the parliamentary debate. The demonstration ended with a concert at Teatro Afrika.
Looking for arguments against the ruling party, opposition party Renamo waffled on about privatisation, but backtracked at the National Assembly.
When it was forcefully argued that privatisation could lead to the emergence of a class of landless peasants, unknown in Mozambique, Renamo switched to greater decentralisation and more power to the regulos its power base in the central and northern provinces.
This platform echoed demands of peasants associations and NGOs. Frelimo was not about to relinquish control of land allocation to regulos, to allow more decentralisation, or enshrine customary law.
However, the ruling party could not ignore the views of the political opposition and civil society. Peasants rights emerged strengthened; state powers, vested in the powerful Council of Ministers, somewhat curtailed.
The heated debate threatened a rift inside Frelimo, pitting business-oriented officials against old guard populists. The rift was solved at central committee level at the partys congress earlier this year. It was decided to keep land as state property but to allow a measure of protection for peasants.
Of 17,5-million people, 80% are rural roughly three million peasant families. With 20-million hectares uncultivated out of a total of 40-million hectares of arable land, Mozambique is the largest, most easily available pool of land in southern Africa. A land rush would put many peasants at risk of losing their land to investors, speculators and agri-business.
Looking at neighbouring Southern African Development Community countries, it is obvious what mistakes not to repeat in Mozambique.
Across Southern Africa, colonial regimes left a system of land divided into fertile areas for commercial farmers and marginal lands for small-scale farmers. Nowhere is womens access to land protected by law. Widow dispossession is frequent across the region.
In South Africa, the rift between land owned by whites and blacks is one of the thorniest economic and political issues for the government. The land reform programme has not even scratched the surface of the problem.
In Zimbabwe, some 6 000 commercial farmers (mostly, but not exclusively, white) own 45% of the best arable land, while 700 000 peasant families are crowded on marginal land. Zimbabwe experiences mounting tension from land hunger.
In Botswana, the state had to shift land from its own property into tribal lands. In Malawi, demands are pouring in for urgent redistribution of land for smallholders.
In Mozambique, the recognition of rights derived of effective occupation is the most equitable preventive measure to avoid conflicts and to encourage economic stability that could have been taken.
The Bill has its drawbacks. It is vague, probably a result of compromise. If compared to the Mozambican Land Bill of 1979, this one leaves many details uncharted. The state retains power and decision in land allocation. Little authority filters down to district or community level.
The Bill does not deal with the vast amounts of land sought by urban elites for speculative purposes. While joint ventures of Mozambicans with foreigners are permitted, and land can be used as collateral for loans, it does not say what happens to the land in the event of bankruptcy: does it revert, say, to a South African bank, and can it be sold?
These chickens will come home to roost, sooner rather than later. The big question remains: how will the law be implemented?
According to land expert Jos Negro, announcements must be first made at district level over each new claim on land. No more concessions should be granted without announcements and without verifying if there is a de facto occupation by smallholders.
Secondly, in areas of potential conflict, rural people should obtain title deeds to their land, either as individual families or as communities. The practice of obtaining title deeds must be encouraged, and eased. A title deed is a guarantee for heirs and cancels the need for 10 years of occupation.
Thirdly, NGOs, churches and civil society in general must set up an organisation to provide legal assistance to peasants on land matters. There should be a specialised advocacy and lobbying service fast, efficient and practical.
Only then will the Bill effectively protect peasants rights to the land and Mozambiques future political and economic stability.
BLURB: User rights can be transferred or inherited, but not sold or mortgaged