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Wednesday, 9 April 2008

The trouble with "land registration"

Random African has a fascinating blog on Land Reform with special reference to Ethiopia, where he makes the following eye catching point on "land registration" :

......it should be evident, beyond political and ideological biases that the land registration effort has been one of the strongest attempts at improving the security and freedom of peasants. Whether its a lease or an ownership title, having a registered and formal document proving a claim (and rules about how it could be transferred) protects one more from state, local, familial, private dispossession than the stated intentions of a politician. And it is na├»ve to believe that private ownership alone, by opening the possibility of using land as a collateral would resolve all the problems related to the availability of credit and access to inputs.While Zenawi does make an interesting point about long-term leases providing security, his defence of the land redistribution provision actually provides serious disincentives to productivity. Even the simple possibility of a reasonable government having the option to redistribute land to “correct unfair and inefficient allocation” probably does not encourage farmers to invest their sweat and their savings into improving their plots.
The problem with the "land registration" argument is that while it makes theoretical sense, sadly the empirical evidence just does not seem to support it. Reasons for this are largely three-fold. First, historically the long evolution of customary rights to land, which are often quite complex in giving different parts of the "bundle of rights" implied by land ownership to different parties during the harvest cycle, means that issuing further land titles could increase rather than reduce uncertainty. Secondly, for cultural reasons land titling may not bring immediate benefits to women. Finally, the perverse incentives of land registration are all too obvious to ignore. Where land registration has been introduced it has increased rather reduced the scope for the kind of opportunistic behaviour that institutions are supposed to prevent. In most parts of Africa it is not uncommon to find sellers who pledge land as collateral for a loan to fail to inform the buyer of this claim on the land, leading to all kinds of problem for banks. Banks usually fail to auction off the land for political reasons, coupled with the general process of delays in the local courts. Its no surprise that even where titling exists banks generally still find it difficult to accept land as collateral. In short, land registration is most effective within a coherent package that addresses many other issues. Its a first among equals, not a special first.

4 comments:

  1. First, historically the long evolution of customary rights to land, which are often quite complex in giving different parts of the "bundle of rights" implied by land ownership to different parties during the harvest cycle, means that issuing further land titles could increase rather than reduce uncertainty.

    That's an issue of enforcement.
    Any other place in the world where dramatic changes have been made (the transition out of feudalism), enforcement of the new rights determined success.

    Secondly, for cultural reasons land titling may not bring immediate benefits to women.

    Once again, enforcement. If a woman can go to courts or the police to have her rights over her husband's or father's land enforced, there's no cultural problem.
    (however, there would be if culturally backwards chiefs get to decide :-) )

    Where land registration has been introduced it has increased rather reduced the scope for the kind of opportunistic behaviour that institutions are supposed to prevent. In most parts of Africa it is not uncommon to find sellers who pledge land as collateral for a loan to fail to inform the buyer of this claim on the land, leading to all kinds of problem for banks.

    You mean banks don't have means to verify it ? I think that's why keeping an accessible registry is as much or even more important than giving away titles.

    Banks usually fail to auction off the land for political reasons, coupled with the general process of delays in the local courts.

    That's true.


    All in all, I'm not sure I understand your point. Is it that Land Registration alone, without enforcement measures and an efficient judiciary, can work ? In that case, I agree. Or is it that it can't work at all ? Or that alternative systems would ?

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  2. "That's an issue of enforcement.
    Any other place in the world where dramatic changes have been made (the transition out of feudalism), enforcement of the new rights determined success."


    May be, but your point not address what specific enforcement would be necessary for where different "bundle of rights" exist.

    "Once again, enforcement. If a woman can go to courts or the police to have her rights over her husband's or father's land enforced, there's no cultural problem."

    May be, but its much more than that than. Joireman's paper Applying Property Rights Theory to Africa: The consequences of formalizing informal land rights suggests that national laws ensuring "joint-ownership" may be crucial:

    Quote:

    "In many African contexts where customary law is regulating the access to land, formalizing existing property rights will effectively alienate women from access to capital. This was precisely what occurred in the titling of land in Kenya. Under customary tenure Kenyan women had use rights and 'considerable management control over plots allocated to them by household heads'. When land was registered in the name of the male household head they lost that control. As long as land is untitled women have usufruct rights. They may not be able to control all aspects of the land use, but they also may have relative security of occupation as long as land values remain relatively low. If there is an effort to formalize the informal customary law that exists in Africa, the land becomes titled but not in the names of women. This makes them vulnerable to loss of their use rights if those in whose name the land is titled seek to sell or mortgage it without their consent. This dilemma would be surmounted by national laws ensuring joint ownership of land."

    "All in all, I'm not sure I understand your point. Is it that Land Registration alone, without enforcement measures and an efficient judiciary, can work ? In that case, I agree."

    Thats what I meant by "land registration is most effective within a coherent package that addresses many other issues". But I go further by noting that "land registration" is not therefore some special weapon for achieving growth. Its a first among many equals.

    BUT there's MORE...here is where I may differ with you.... from our previous exchanges....

    Land registration is a TOP DOWN institution, which largely fails to achieve anything because it fails to recognise that effective institutions are BOTTOM UP... for land registration to really work...it needs to be BOTTOM UP...in other words reflecting the historical, cultural and economic realities I have discussed.

    ReplyDelete
  3. but your point not address what specific enforcement would be necessary for where different "bundle of rights" exist

    Probably but that the idea that land registration was sufficient to guarantee security wasn't my point.
    My point was that the registration effort made by the Ethiopian government was an improvement in the sense that it gave farmers and the judicial system a tool to resolve disputes that didn't exist before.
    Once again, I don't think it's sufficient at all.

    In many African contexts where customary law is regulating the access to land, formalizing existing property rights will effectively alienate women from access to capital. This was precisely what occurred in the titling of land in Kenya. Under customary tenure Kenyan women had use rights and 'considerable management control over plots allocated to them by household heads'. When land was registered in the name of the male household head they lost that control. As long as land is untitled women have usufruct rights.

    No surprise here, it's Kenya.
    Even in the particular case of that Land Registration in Ethiopia, you'd find out that there were considerable regional differences in outcome. Actually it is the provincial governments who organized most of the registration with the central government (and the WB) providing money and a general framework. It just happened that levels of implied recognition of wife's right over land were more or less corralated with the general state of gender's rights:

    "To assess whether outcomes are biased against women, we asked a female respondent, in most cases the
    head’s spouse, to indicate whose name is written on the certificate and whether she knew where the
    certificate is stored. Although such information is available only where a certificate has been issued, it is
    revealing in three respects. Women’s awareness of the certification process is high; in all regions 85% or
    more know where the document is stored and less than 2% do not know whose name is on the certificate.
    As one would expect, without regulations to mandate joint titling in the case of Tigray, the majority of
    certificates (71%) are issued in the husband’s name rather than jointly (13%) or in the name of the spouse
    (14%). However, as all of the other regions had regulations requiring certificates to be issued jointly, the
    large variation in the share of certificates issued exclusively or jointly in the name of females in these
    regions is surprising. While less than 9% of certificates are in the husband’s name in Amhara, 58% and
    21% are so in Oromia and the South, respectively. Analysis to identify reasons for such differences would
    be desirable. An intriguing possibility is that the requirement to include women’s picture on the certificate
    in Amhara and the South but not in Oromia is at the source of the neglect of women’s rights in the latter.
    Exploring whether this is the case, jointly with the extent to which possession of a joint certificate affects
    women’s bargaining power and access to economic opportunities, would be of interest. "

    from this world bank paper .

    So basically, this argues against letting people decide locally !

    And Kenya is not really a bastion of gender equality even in the African context. Whether it is the traditional law or the national one (with its victorian and christian biases) that does the most oppression is irrelevant, both base it on imagined "tradition". (yes i'm suggesting that the people who designed those laws were urban educated males like me and you who used cultural arguments to justify their sexism)

    Land registration is a TOP DOWN institution, which largely fails to achieve anything because it fails to recognise that effective institutions are BOTTOM UP... for land registration to really work...it needs to be BOTTOM UP...in other words reflecting the historical, cultural and economic realities I have discussed.

    The problem is that you're assuming existing traditions are bottom-up or something. That's ignoring that most pre-colonial arrangement evolved out of complicated power relations that often involved force (and were imposed) and that they were greatly modified by the "modern state" during the colonial and post-colonial period.

    To take an example, the White Minority governments of Zimbabwe and South Africa spent a LOT of time and energy enforcing communal land system in black areas simply because dealing with a chief was convinient to them (and to repress the rise of black modern economic agents).

    But even beyond that, there's a realism issue. When did a modernisation (or any change at all) happen from the bottom up ? The Enclosure of the Commons or the end of feudalism made a lot of people unhappy, the Meiji Reform was made in the most top-down way possible: by imperial decree. The 1945 Japanese Land Reform was imposed by the american occupants ! All the major changes in China were initiated by dictatorial central governments ! The British imposed a bunch of them in their Asian and African colonies. The end of feudalism was a result of European Kings' centralisation efforts. And I could go on and on..

    One issue could be the ability to enforce those new insitutions.. But I don't see why the Zambian or Ethiopian state would be less able to impose their will in 2008 than european governments in the 18th or 17th century.

    That's unless you define "bottom up" politically. I mean, talking about the need to have the approval of the people rather than the need for the initiative to come form them. In that case, yes, there's a huge advantage. What's better to get rid of backward chiefs and feudal rulers than to convince the people they rule that they should be remowed ?

    But that would imply discussing it the actual people at the bottom and not the individuals who claim to be their legitimate representative because one of their ancestors managed to force his will on them a few centuries ago.

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  4. actually, "one of the strongest attempts at improving" doesn't even imply the improvement was succesfull, let alone that it was sufficient.

    ReplyDelete

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