Land issues and Peacebuilding in Burundi

  

 

1.      Introduction:

 

This brief note attempts to explain why land issues are generally vital for peacebuilding, and provides an overview of the situation in Burundi. It is intentionally short, and readers are therefore directed longer documents such as Huggins, C. Land in Return, Reintegration and Recovery Processes: Some Lessons from the Great Lakes Region of Africa. Overseas Development Institute, London (forthcoming) and Huggins, C. Peacekeeping and Housing, Land and Property Rights in the Great Lakes Region of Africa. Centre on Housing Rights and Evictions (forthcoming) for further details.  

 

2.      What role do land issues play in the onset of armed conflict?

 

Sometimes, land-related injustices are overtly articulated as a cause of the conflict, especially when they become highly politicized or ‘ethnicized.’ They may then be termed proximate causes of conflict.

More often, injustices related to land are a ‘background’ or structural cause of conflict, which may not be cited as a cause by the protagonists. Injustices around land can represent structural causes of conflict in a number of ways, including:

 

·         Land scarcity and poverty encourage some to join armed groups as a means of survival. Issues of land access interact with other problems, including poor governance, crumbling infrastructure, and the effects of local and global trade regimes.

·         Population displacement (e.g. due to infrastructure and energy projects, conservation  areas, or the razing of informal settlements), can  create pockets of impoverished youth, who are vulnerable to recruitment by armed groups.

·         Social tensions or ‘vertical conflicts’ are caused by lack of investment by the state in public services, and the de-prioritization of natural resource management and land rights in order to facilitate foreign or domestic investment.

·         Land held under customary land tenure is often vulnerable to alienation, against community wishes.

 

 

3.      Changes to Access and Claims to Land during Conflict

 

Claims to land and natural resources can change through a combination of intended and unintended consequences of conflict:

 

·         Social relations can undergo radical changes during conflict, and land tenure systems are profoundly affected as a result. In general, women and children who lack a ‘patron’ can often suffer reduced access to land, and curtailed livelihood options.

·         Local dispute management systems which function in the absence of state systems will have an influence on land access, though this may not be a primary objective.

·         Population displacement alters land access in a number of ways. Land temporarily abandoned by IDPs is opportunistically occupied by others. IDP camps may become informal but permanent settlements located on prize urban land. In Burundi, some 38% of IDP camps are located on privately-owned land. Forced evictions from informal and spontaneous settlements is a feature of post-conflict ‘development’ in some countries.

·         Many conflicts are characterized by the systematic forced displacement of particular communities, or ethnic cleansing. Alternatively, counter-insurgency strategies may involve the forced displacement and ‘villagization’ of communities.

 

 

4.      Key post-conflict challenges related to land and property

 

The immediate post-conflict period is often characterised by rapid change in the political, social, and economic sphere, with major implications for claims to land and property:

 

·         Returning refugees, some born in exile, require access to housing and land 

·         Secondary occupations of abandoned property, land invasions

·         Women’s claims to land undermined by social changes and breakdown of customs

·         Large numbers of female- and child-headed households

·         Overlapping rights and claims to land and natural resources

·         Lack of a relevant land policy in a context of rapid change

·         A dysfunctional land administration system and destroyed or lost documentation

·         Lack of shelter due to destruction of housing stock

·         A political focus on emergency actions rather than re-establishing systems

·         Vested interests amongst some key stakeholders in maintaining a certain degree of chaos

·          Ambiguous, controversial or unenforceable laws

 

 

5.      Land Disputes and Conflict in Burundi’s Recent Past

 

In 1993, some 50,000 refugees spontaneously returned to Burundi following the election victory of FRODEBU. The newly installed government declared its intention to return to the refugees the land and property that had been occupied in their absence. Members of the Tutsi elite would be the main losers in this process. Attempts by Hutu returnees to regain access to lost lands included forced evictions of those families (mostly Tutsi) who were occupying their plots. Some of those evicted, from Minago zone (Bururi Province) demonstrated outside the President’s office buildings in Bujumbura. The very public nature of the dispute, in addition to tensions caused by official attempts to challenge powerful people who had occupied land after the departure of the refugees, significantly contributed to the deterioration of the political situation that culminated in a coup d’état, the assassination of President Ndadaye, and the resumption of conflict.

 

 

6.      Overview of Land-Related Challenges in Burundi

 

The challenges of refugee return are occurring within a very difficult institutional and geographical context: a country approaching demographic bursting point, a land registration system which has historically been highly corrupt and dysfunctional, an outdated land law, and a new government facing multiple challenges. Land has been allocated by various state actors without due regard to the law or the need for institutional coordination. Women, particularly widows, and the Batwa minority find it very difficult to claim their land rights due to obstacles in the customary and statutory legal regimes, and the country is rife with land disputes, mostly between extended family members. Population density averages 290 persons/km² and reaches 800 persons/km² in some parts of Ngozi Province. Some 95% of Burundi remains under customary tenure, and are disadvantaged vis-à-vis those able to register land. Average plot size per household is around half a hectare, with 80% of the population owning less than 1.5 ha. While it is difficult to measure the rate of landlessness accurately, it is high at up to 15% nationally. A draft land code has been under development for several years, and efforts have been made to draft a comprehensive land policy.  The government has demonstrated increased willingness to invite civil society input in recent years, but both the draft national land code and the policy continue to be in hiatus due to political instability.

 

Disputes involving refugees and IDPs have exacerbated a situation which is structurally complex and challenging. From a peak of 800,000 in 1999, the number of IDPs had dropped to almost 117,000 living in camps by mid 2005. While most IDP camps were built on unoccupied state land, some were constructed on private land, generally without compensation. Some Burundian civil servants have argued that the state is not liable for related possible compensation claims. Between 2002 and March 2008, about 389,000 refugees returned from Tanzania, 300,000 of them with UNHCR facilitation. In many instances, the land they once owned has already been allocated to others by the government of Burundi; in others, relatives have already sold the land to third parties, or distributed the land amongst themselves according to customary inheritance regulations.

 

 

7.      Land disputes, local violence, and customary mediation systems

 

It is not clear exactly how many land disputes have been registered in total across Burundi, because of the number of institutions involved in mediation or arbitration. A sampling of 20 communes (of the 129 communes in the country) undertaken last year identified 43,514 disputes. The number at the national level is likely to be huge. Some communes have a concentration of disputes, whilst others have few.

There are many different kinds of land disputes in Burundi. According to the UN, the most common are: “landless people claiming their property” (21.4% of total registered disputes), “illegal occupation of property in the absence of the owner” (21%), and “uncompensated appropriation of land by the state or parastatal institutions” (18.2%).

The UN Mission in Burundi (BINUB) has consistently noted the frequency and significance of land-related killings, often involving grenade attacks. Human Rights groups have warned that some major disputes are showing signs of dangerous escalation. local administrators in Rumonge Commune (Bururi Province) report that many killings in recent months are related to land conflicts. Land disputes have also been blamed for violence in Nyabihanga commune (Mwaro Province), where some six people were killed in separate incidents over land during the course of a single week in April.

In the past, land disputes have been mediated by a customary institution of male elders, termed ‘Bashingantahe’. In some areas, the local elected administrators (conseil de colline) and the customary mediators (Bashingantahe) are in conflict over roles and responsibilities.  In parts of Ngozi Province, for example, the Bashingantahe have been prevented from operating at all. In other areas there is greater cooperation; suggesting that this issue is very context-specific. BINUB recently hosted a conference which called for clarification of the legal status of the Bashingantahe.

Local administrators attempt to find their own means to adjudicate land disputes, especially intra-family disputes, resulting in a variety of outcomes. However, administrators are generally wary of getting involved in more complex or political disputes. Time will tell whether ad hoc mediation at local level, including so-called ‘land-sharing’, provides a sustainable response. Observers have already noted that weaker parties in disputes – particularly widows – are liable to lose access to land when disputes arise.

Many disputes, especially those with historical government involvement (i.e. state-sanctioned redistribution of land) or legal dilemmas (i.e. documented land sales to a third party during the absence of the original owner) surpass the mediation capacity of the Bashingantahe or the local administration.  Given the lack of legal clarity on a variety of issues, the courts also find themselves unable to justify a clear and definitive ruling on many of these land conflicts. 

 

 

8.      ONUB, BINUB and Land Issues in Burundi

 

Despite the emphasis on land issues in the Arusha Peace Accords for Burundi, some opportunities were missed in the immediate post-conflict period. It is for this reason that the Peacebuilding Commission’s work offers such an important opportunity for land issues to be more comprehensively supported.

 

Capacity building in the informal and formal justice sectors is vital for addressing land disputes. Surprisingly, the initial field-visit to plan the establishment of ONUB did not involve personnel specialized in judicial and legal reform. With only a few international Rule of Law positions authorized for ONUB, and no National Professional Officer positions, the Rule of Law branch was unable to tackle issues related to land and property. Systematic support for refugee return was lacking within ONUB and BINUB’s programmes, and a multi-agency Ad Hoc Integrated Commission for Repatriation and Return was only established in July 2007. The agencies involved expressed regret that it hadn’t been established sooner. BINUB monitors land-related human rights abuses and conducts regular awareness-raising on land issues. However, increased cohesion of its land-related activities, for example through coordination by a dedicated ‘land specialist’, might add considerable value to its existing investments.

 

 

9.      Burundian Civil Society Organizations and International NGOs

 

Since the late 1990s, awareness has risen amongst national and international actors of the importance of the land question, particularly in the context of returning refugees and IDPs. A number of organizations have become involved in the issue, and local capacity is considerable. Their actions, though highly varied, can generally be categorized as:

 

a) Problem-analysis and general awareness raising, for example through publishing case studies on land problems.

b) Analysis of the existing land law and/or the new draft land law, and awareness-raising and advocacy.

c) Strengthening of local dispute-resolution capacity, often through training programs for existing local institutions, or establishment of new institutions.

d) Direct material support to vulnerable populations affected by land and housing problems has also been provided by a variety of NGOs.

 

 

10.  The CNRS and CNTB

 

The Commission Nationale pour la Réhabilitation des Sinistrés (CNRS) was the primary institution addressing land claims around the return of refugees and IDPs from early 2003 until mid 2005. The CNRS lacked presence ‘on the ground’, with much activity being focused in the capital. Despite the actions of local civil society organizations, reception centres, staffed by local volunteers, are barely functioning. Some returnees, receiving little or no help to resolve their land problems, have even moved into IDP camps in order to receive assistance.

The CNRS ran out of funding and ceased to function in the middle of 2005. There was an institutional vacuum for almost a year before a new institution took over its responsibilities and took position of its archives and cases of property claims.  In late May 2006 the National Commission for Land and other Property (known by its French acronym CNTB) was formally established, with a very broad 3-year mandate to address land conflicts arising from repatriation, as well as illegal land transfers. The Commission is composed of a 23-person team recruited from ministries, and appears to enjoy moderately strong political support. The Commission is not empowered to make judgements over land claims, but has a mediation function. The CNTB plays a vital role and financial support from the Peacebuilding Fund is to be welcomed.

 

Like the CNRS, the CNTB is at risk of being overwhelmed by thousands of time-consuming local disputes. The best strategy may be for it to prioritize a number of particularly challenging cases which are clearly beyond local capacity for mediation. For example, 91% of the refugees returning to the province of Bururi have resettled in the commune of Rumonge, in which many valuable oil palm plantations are found. This has resulted in complex and politically sensitive disputes

 

A number of other issues have been identified, including:

 

·         The CNTB’s 3 year mandate may be too short to address all existing disputes

·         There is no cut-off point for the submission of claims

·         Compensation, particularly for property lost during conflict, is complex and expensive

·         Local commune-level CNTB partners aren’t yet functional in every commune

·         Insufficient coordination between CNTB and local civil society actors

·         Awareness-raising activities in Burundi and Tanzania are too limited.

 

While the CNTB should avoid becoming spread too thin, it is important that it bridges the local and national levels, rather than working only at the local level. The CNTB could assist different stakeholders to coordinate their actions and lobby for legal and political solutions to the more intractable and complex disputes involving IDPs and refugees. The CNTB’s experiences would provide valuable input to the land policy development process, though it may not be appropriate for CNTB’s busy staff to become directly involved in this policy process.

 

 

11.  Concluding reflections

 

The following reflections, based on experience elsewhere in Africa, are offered as food-for-thought:

 

Often, international observers assume that guidelines and regulations are closely followed on the ground but in practice, outcomes are largely a result of local power relations and are contingent on the capacities and intentions of local administrators.   Donors rarely devote adequate resources to ensure systematic monitoring of the successes and failures of local-level implementation. This may be an important role for civil-society organizations in Burundi.

 

In many African countries, national networks of organizations working on land have proven effective in maintaining national and international attention on the key challenges, and providing input in policy discussions. International NGOs have attempted to establish informal networks in Burundi, and such efforts deserve financial and political support.

 

Land disputes may become a structural cause of local tensions across the country. They may become a proximate cause of conflict in particular cases, such as Rumonge. The political and financial resources of the CNTB and its international supporters should be directed primarily at the most complex and potentially ‘intractable’ land disputes, such as those concerning the 1972 refugees.

 

Despite the prioritization of land issues in the Accords, some observers have argued that, “the focus on mechanisms for resolving individual cases” has served to distract attention and funding away from a larger, more holistic policy debate on land and property issues involving all key stakeholders

The massive scale of land-related problems in Burundi extends far beyond the rights of hundreds of thousands of IDPs, refugees and other vulnerable groups.  If responses to the immediate and acute land and property challenges of IDPs and refugees are not combined with comprehensive and dynamic means of addressing the systemic and political land tenure problems, they will become undermined by the failings of the judicial system, the pressures of competition for land, and the imperatives of political expediency.