Ghani's Dilemma: Land Reform in Afghanistan

When Ashraf Ghani was elected President of Afghanistan in September 2014, he inherited a country in turmoil.  The election results sparked a political crisis challenging Ghani's right to power, the Taliban was ramping up operations just as NATO troops were preparing to withdraw, relations with key neighbors (e.g., Pakistan) were shaky, and the economy was still reliant on the illegal opium trade and foreign donors.  Afghanistan ranked 169th on the UN's Human Development Index.  Here's a less publicized but just as important problem facing Afghanistan today: it has a weak legal framework for land administration and management.  

Effective ownership of land provides economic and political opportunities to landowners, stability to the economy and government, and reinforces state functions like tax collection and security.  The absence of an effective legal framework for land does the opposite, weakening the economy, corrupting politics, and threatening security.  A 3-part series on land theft in Afghanistan - produced by the UN Assistance Mission in Afghanistan (UNAMA)'s Rule of Law Unit - claims that weak land administration is not just a critical issue in Afghanistan; it may be the most critical issue in Afghanistan:

Whether related to the opium trade, extractive industries, or land transactions, land conflict drivers likely affect a far greater proportion of the Afghan people on a daily basis than the ongoing military conflict...Land ownership disputes are estimated to be the cause of over 70% of all serious crimes (murder and crimes of violence) in Afghanistan.

So far Part I and Part II have been released, and the research effort is impressive.  Some key findings:

• Most land in Afghanistan is not titled or registered in any formal legal sense.  The Land Management Law of 2008 provides a path towards ownership for individuals with customary or traditional land tenure, but the bureaucratic requirements and administrative costs needed to establish ownership are unrealistic.
• Assuming customary tenure can be shown, formal title is no guarantee of effective ownership since many institutions provide some claim to title.
• Property laws are skewed toward protection of the state, not individuals.  Lands are often claimed by the government (and often corruptly) without compensation provided to landowners.
• The various land dispute resolution mechanisms that exist - be they formal, informal, or a hybrid - encourage forum shopping and create ambiguity.
• Land grabbing is not criminalized.  In theory a penalty of 2 years can be imposed, but criminal land grabbing cases must wait until the associated civil case concludes.  To date no criminal prosecution of land grabbing has been recorded, an open invitation to steal land.  

Reforming this system means accepting some rather uncomfortable possibilities.  First, Ghani must decide whether land reform requires consolidating administrative powers into one all-powerful national government agency, or decentralizing power away from the central government and toward local political bodies.  A strong national agency can provide consistency of administration, lower transaction costs, and improve coordination.  But without checks and balances to its power, it becomes vulnerable to large-scale corruption.  Decentralizing land administration provides diversification and disperses power away from the hands of a few, but may be just as vulnerable to corruption while lacking the benefits of coordination and consistency.  Proposed amendments to the Land Management Law and Land Expropriation Law are going with the first approach, broadening the power and scope of Arazi, Afghanistan's land authority.  

Second, Ghani must negotiate between the need for local context in land reform, and the power and resources provided by foreign donors and consultants.  Consultants often refer to "international best practices," "twenty-first century models," and a "lack of political will" when considering reform in developing countries, but aren't responsive to local needs or dynamics.  The UNAMA report notes that proposed amendments to the LML and LEL were developed by foreign consultants and did not engage Afghan stakeholders in the process.  Those reforms lack broad support as a result.  But UNAMA itself suggests the creation of a working group to work through land reform, "with technical support provided by the international community."

Ghani appears familiar with this dilemma.  In a 2005 TED Talk he notes that the "uncritical transfer of assumptions, from one context to another, can only make for disaster."  Money quotes from 1:49 - 3:09:

Extractive industries and technical assistance: the scourge of the economically excluded.  Afghanistan has both, and the vast potential to exploit mineral reserves that may be worth $3-30 trillion.  Mes Aynak is emblematic of the dilemma.  Mes Aynak contains Afghanistan's largest copper deposit, sold in a shady $3 billion deal to a Chinese state-owned company that represents the largest single source of foreign investment.  But the site also contains ancient Buddhist settlements and a 5,000 year old Bronze Age site with untold archaeological significance.  Foreign investment or cultural heritage?  It appears one must give way to the other. 

While Mes Aynak grabs the headlines, small-scale farmers and pastoralists will continue to suffer from a weak legal framework for land tenure and administration long after the site is preserved or exploited.  Among Ashraf Ghani's many (and unenviable) tasks, land reform may be the least publicized.  But it remains one of the most  important.  For what it's worth, I am available to provide technical assistance.