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This document is from the archive of the Africa Policy E-Journal, published by the Africa Policy Information Center (APIC) from 1995 to 2001 and by Africa Action from 2001 to 2003. APIC was merged into Africa Action in 2001. Please note that many outdated links in this archived document may not work.

Mozambique: Peace Process Bulletin, 2

Mozambique: Peace Process Bulletin, 2
Date distributed (ymd): 971001
Document reposted by APIC

+++++++++++++++++++++Document Profile+++++++++++++++++++++

Region: Southern Africa
Issue Areas: +political/rights+ +economy/development+
+security/peace+ +gender/women+
Summary Contents:
This posting contains excerpts from the Mozambique Peace Process Bulletin, reporting on changes in the land law in Mozambique, after debate by the Mozambican parliament and lobbying by Mozambcian NGOs.

+++++++++++++++++end profile++++++++++++++++++++++++++++++

MOZAMBIQUE PEACE PROCESS BULLETIN

Issue 19 -- September 1997 (Excerpts)

Published by AWEPA, the European Parliamentarians for Southern Africa,
Prins Hendrikkade 48, 1012 AC Amsterdam
Tel:+31 (20) 524 56 78 Fax: +31 (20) 622 01 30
[awepa@antenna.nl; http://www.awepa.org]

Rua Licenciado Coutinho 77 (CP 2648) Maputo
Tel: +258 (1) 41 86 03, 41 86 08, 41 86 26 Fax: +258 (1) 41 86 04
[awepa@awepa.uem.mz]


Editor: Joseph Hanlon [j.hanlon@open.ac.uk].

Material may be freely reprinted.

[continued from part 1; for additional references see part 1]

AFTER NGO LOBBYING, NEW LAND LAW INCREASES PEASANT RIGHTS

Peasants gained significant new rights in a land law approved in July by parliament (Assembleia da Republica, AR).

In response to the most active lobbying by civil society seen so far in the new multi-party parliament, the AR made three key changes to the draft law submitted by the government. These changes: + increase the rights of women, + give a greater role to traditional leaders, and + partly restrict the way the council of ministers can give permission for land use.

The last two changes reversed revisions which the Council of Ministers had made in the bill last year before submitting it to parliament. Both involved compromises between government and parliament which will require further new legislation next year.

The land law was drafted and revised many times over a two year period as part of wide consultation in one of the most open and democratic processes in many years in Mozambique (See Bulletin 17, November, 1996 for more details).

The two largest organisations representing peasants, ORAM (Organizacao Rural de Ajuda Mutua, Rural Organisation for Mutual Help) and UNAC (Uniao Nacional de Camponeses, National Peasants Union), described the new law as "good" and as a "victory for peasants". Lorena Manguane of ORAM said "the old law was written in offices without an understanding of peasants; the new law was written by the people and responds to our reality."

Both ORAM and UNAC intend to publicise the new law as widely as possible, and stress the importance of telling peasants that they are supposed to be consulted before any titles granting use rights (effectively leases) are issued to others over land near theirs.

Conceicao Quadros, technical director of the Land Commission, said the law would be translated into local languages to help make it more accessible to local people. She also stressed the importance of non-government organisations in making peasants aware of their rights to remain on land they occupy.

KEY POINTS OF THE NEW LAND LAW

Under the new land law:

+ Land remains the property of the state; communities, individuals and companies only gain use rights (leases).

+ Use rights can be transferred but cannot be sold or mortgaged.

+ Use rights are gained by occupancy or by the grant by the state of a lease of up to 100 years.

+ Formal title documents showing the right to use land can be issued not just to individuals and companies, but also to communities and groups.

+ Communities or individuals occupying land for more than 10 years acquire permanent rights to use that land, and do not require title documents.

+ Courts must accept verbal evidence from community members about occupancy. (Verbal testimony was restricted under the old law, which gave absolute preference to paper titles. This clearly worked against peasants.)

+ Titles for use cannot be issued on land already occupied by others.

+ Titles for use rights are only issued if there is a development plan; titles are issued provisionally for two years and made permanent (for up to 100 years) only if the projected development is being carried out.

LOCAL COMMUNITIES AND THE LAW

The new law defines a "local community" as "a group of families or individuals that has the aim of safeguarding common interests through the protection of living areas, farming areas whether cultivated or fallow, forests, sites of cultural importance, pasture, water sources, and areas of expansion." Local communities can have use and occupancy rights and can be issued collective titles. Before any title is issued, "local communities must be consulted to confirm that the area is free and has no occupants." ...

RENAMO OPPOSED

The land law was subject to more than a week of intensive debate in parliament. Renamo opposed the bill because it continued state ownership of the land and it limited the role of "traditional" authorities.

"The people must enjoy the right to private property," and this must include land, argued Dr David Aloni, deputy leader of the Renamo parliamentary party. "The people have a right to own the land they inherited from the ancestors." He also argued that privatising land was in keeping with the new market economy, and that state ownership of land was "communist"..

The constitution and the new land law prevent private ownership and the mortgaging of land. Instead, people have "use rights". These are permanent for individuals and communities already in occupation, and for home-owners. People and companies can apply for up to 100 year leases to use other "unused" land.

The position taken by Frelimo is that privatising land would lead to landlessness, as happened elsewhere. "What happened in Brazil, where land was sold to the exploiters, will never happen in Mozambique," Helder Muteia, chairman of the parliamentary Commission on Agriculture and Local Development, told a rally of peasant farmers organised by ORAM on 12 July during the parliamentary debate.

In general, peasants associations backed Frelimo on this and opposed land privatisation.

But Renamo calls for a bigger role to "traditional" leaders and "customary" practices in issues of land received strong backing from peasant groups." Peasants know customary law is not perfect. But they know and understand it, and find it easier than dealing with bureaucrats and courts. Peasants want to settle their problems meeting under the cashew tree," explained Ismael Ossemane of UNAC.

In the end, the majority Frelimo party made major concessions to peasant and Renamo demands, and the draft law was amended. Nevertheless, Renamo voted against the revised law. "We were disappointed with Renamo; this is so much better than the old law and is in the interests of the peasants," said ORAM lawyer Janete Assulai.

MORE RIGHTS FOR WOMEN

As submitted to parliament by the Council of Ministers, the draft law already strengthened the position of women by stressing the equality of men and women with respect to land titles. The Council of Ministers also justified its removal of references to "customary" law on the grounds that "traditional practice discriminates against women".

In its defence of tradition, Renamo deputy Luis Boavida said that discrimination was a myth invented by ignorant foreigners "who don't know the black Africa tradition".

Peasant organisations and trade unions were present during the entire debate. During the morning coffee break parliamentary deputies and the public mix freely, and this is a good time for lobbying. After Renamo claims that women were not discriminated against, Janete Assulai talked during the break to some Renamo deputies, and she said this had some effect on their rhetoric.

In the end, lobbyists gained both points, more rights for women and more power for traditional authority. On inheritance rights, the parliament added a clause saying that inheritance must be "independent of sex." And the new clause of "customary practices" says they cannot be "contrary to the constitution" -- which guarantees (article 67) that "men and women are equal before the law in all aspects of political, economic, social and cultural life."

"Our society is accustomed to putting women in second place. We must shift the mentality. It is important to repeat gender equality in all new laws to accustom people to the new thinking," said Assulai.

LAND GRANTS

Under the old law and regulations, the position of who could grant titles to use land (leases) was confused, leading to conflicting titles and delays in issuing titles. The original Land Commission draft set up a clear hierarchy, from local councils giving leases on small plots to the Council of Ministers for big developments.

The Council of Ministers reversed this and in its version kept total power--the system of the old law. Civil society and parliament reacted angrily to this. There have been widespread complaints about land titles being given to high officials and their families. Renamo's David Aloni said "the country is being divided up in favour of a new bourgeoisie of the party in power in Maputo [Frelimo], flagrantly prejudicing the population in violation of customary rights and private property in general."

Members of parliament, even of Frelimo, are also unhappy about the agreement in secret for major land grants to South Africans in Niassa and to James Blanchard III near Maputo.

In the end, parliament imposed even tighter allocation restrictions than had been proposed by the Land Commission: ...

Several ministries and agencies and the Land Commission are already participating in discussions of how to draw up a new law on land use plans, and it seems likely that initial proposals will demand some sort of community partnership. Further NGO lobbying will be needed on that issue. A draft law may go to parliament in the final session of 1998.

CONSULTATION & REGULATIONS

"The new law requires consultation with the community. But how is this to be done? Who speaks for the community? Who can say 'this peasant lives here'?" asks Ismael Ossemane of UNAC. ...

Consultation mechanisms are already the hottest issue in the discussion of the regulations. "How can we give real power to the peasants, who cannot forever be dependent on foreign NGOs with money to defend them? We need a system which peasants can use to defend themselves" comments Ossemane.

The new regulations will try to do this, and will probably involve some sort of local land commissions. The regulations will also require some on-the-spot inspection to prove that land is not occupied. ...

RESOLVING CONFLICTS

War and the flight of millions of refugees, plus the confused process of issuing titles (leases), means that there will be many conflicts in coming years between different people claiming the right to use land.

The new law clarifies the position in several ways. It confirms the rights of peasants occupying land, insists that they must be consulted in the issuing of any new titles, and ensures that a court must take into account aural testimony of peasant's land occupancy. This latter point is important because under the old law a paper title took total precedence; ORAM reports that in Liberdade near Inhambane a peasant farmer has been told by a court to leave land he was farming for 20 years because someone else has obtained a title.

The new law does not nullify titles issued improperly on land already occupied by someone else. But ORAM hopes to reverse some of these by demanding that titles be revoked when the land is not developed according to the plan under which it was granted. Joao Muthombene, president of ORAM, argues that a lot of land has been registered by high officials speculatively in the past few years, in the expectation that the government would cave in to US pressure and privatise land and they could then sell on their titles. Now, they cannot sell and cannot carry out the false development promises, so the titles will soon become invalid.

But where there are genuine conflicts, the case will go to court. Conceicao Quadros says that courts will give heavy weight to antiquity of rights, and if a peasant can show she was living in a place when the title was granted to someone else, then the court will probably allow the peasant to stay. But Quadros admits the need for some kind of guidance note for the courts on these issues.

Muthombene feels that the main issue is the "spirit of the new law" which gives more rights to peasant occupiers. He feels this has shifted the legal balance, and will lead to more attempts at negotiated settlements; ORAM has already been asked by Lomaco to participate in talks over land near Maputo.

A particularly complex issue is land occupied by refugees, who after a decade or more in a new place do not want to go back to what was once "home". The new law gives full rights to people who occupy land for ten years "in good faith", but Quadros notes that "refugees know that every tree and piece of land has an owner, and that they were borrowing land from someone else, so they are not there 'in good faith'." If the previous occupant fled the country, they may have a claim, but if the previous occupant simply moved to the nearest city and tried to return at the end of the war, the refugees may need to move. ...

HUGE CLAIMS, FEW GRANTS

There have been massive requests for land concessions, but so far few have been granted. A study by Greg Myers and Julieta Eliseu showed that in Zambezia in the past decade, 3.8 million hectares have been applied for--one third of the entire province, and two-thirds of all arable and forest land. But titles have only been granted on 50,477 ha.

There has been some confusion about applications and grants. Myers and others head their charts "Land Concessions" and refer to applications that way in their reports. That leads a casual reader to think these are grants or titles, and some huge numbers have been repeated in the international press. But the small print shows they are only applications, not actual grants.

Nevertheless, the size of the applications has worried peasant leaders. Speaking at a seminar in June in Mocuba, ORAM Zambezia representative Lourenco Duvane noted that many of the applications are for very large tracts of land, and are made by a tiny handful of companies and individuals. The applications for over 100 ha, which total at least 2.5 mn ha, have been made by only 350 individuals and companies. If granted, Duvane warns, this could mean "0.1% of the families controlling 40% of the arable land in Zambizia."

BY EVICTING NIASSA PEASANTS, SOUTH AFRICANS TEST NEW LAW

Conflicts in Niassa following South African violations of the Mosagrius agreement present the first test of the new land law.

Mosagrius is a controversial political project agreed by the presidents of South Africa and Mozambique to allow Afrikaans farmers linked to the conservative Freedom Front to settle in Niassa.

In July two South African families arrived in Sanga district and one in Majune district. They occupied peasant land and evicted local farmers, showing maps issued by Sacada (South African Chamber of Development of Agriculture in Africa). Peasants complained to the local chiefs, who informed district administrators who told the governor. In mid-August, Governor Aires Bonafacio Aly went to both Sanga and Majune where he said the presence of the South Africans was a total violation of the agreement. He ordered an immediate halt to land clearing and to any further settlements.

An annex to the Mosagrius agreement signed on 6 May 1996 by Sacada and a variety of Mozambican parties, including Celena Cossa, president of the Uniao Nacional de Camponeses, promises Mosagrius 100,000 ha in Sanga, 100,000 ha in the Rio Lugenda valley (mainly Majune district), and 20,000 ha along Lake Niassa for ecotourism. But it stresses that these areas are still to be defined "jointly with representatives of the government, Mosagrius and local authorities and people" and must be land not occupied under "customary rights".

The governor spelled this out in public meetings last year in Majune and Sanga. People complained when they saw these promises breached.

A whole set of agreements and laws has been broken. Land is supposed to be demarcated and given to Mosagrius, which then allocates it on the basis of specific development plans and with the requirement that for each three South African families, there must be one from a local farmers group AAGICONI (Associacao Agro-Industrial e Commercial do Niassa).

Sacada is accused of violating these norms by sending farmers to settle without plans and without consulting either Mosagrius or Mozambican government officials, and of taking the best land before giving any to Mozambican partners. A commitment of Mosagrius was to open up more remote land; instead, the South Africans are trying to take land close to the road and nearer to the provincial capital, Lichinga -- precisely the areas already occupied by local people.

And yet, the South Africans are not unpopular. When the governor wanted to force a family in Majune to leave Niassa, the people said no--they had nothing against the family and simply wanted them to move to unoccupied land. They had not objected to several other families settling on land local people considered unoccupied.

Local people have unrealistically high hopes that the South Africans will promote development. Local people expect the Boers to bring jobs, provide marketing facilities for local production which cannot now be sold, and offer help to local farmers. Already 300 people have been hired for land clearing, although there are complaints that they are being paid below the minimum wage.

Mozambicans at all level, from governor to peasant, expect the Afrikaans farmers to integrate into the local community. So far, this has not happened, with the South Africans apparently trying to set up self-sufficient enclaves similar to the Portuguese colonial settlements of 50 years ago.


This material is being reposted for wider distribution by the Africa Policy Information Center (APIC), the educational affiliate of the Washington Office on Africa. APIC's primary objective is to widen the policy debate in the United States around African issues and the U.S. role in Africa, by concentrating on providing accessible policy-relevant information and analysis usable by a wide range of groups and individuals.


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