Ghani's Dilemma: Land Reform in Afghanistan

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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.  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. 

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Disaster Law and Displacement, Nepal Edition

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Disaster Law and Displacement, Nepal Edition

Earlier this month I wrote about displacement and disaster in Haiti, highlighting some legal obstacles that were (and still are) frustrating efforts to reduce displaced populations after the 2010 earthquake.  The legal framework was weak on three fronts: domestically, building codes were not optimized for seismic activity and rarely enforced, while property documentation processes were confusing; regionally, while the Dominican Republic pledged aid at first, long-running tensions emerged eventually; and internationally the NGO and intergovernmental community operated without meaningful checks and balances.  

On Saturday, a 7.8 magnitude earthquake struck Nepal, with an epicenter roughly 80 kilometers from the capital and most populous city, Kathmandu.  Compare that to Haiti's 7.0 magnitude earthquake 25 km from Port au Prince, Haiti's capital and most populous city, and the seismology looks similar.  But vulnerability is a product not only of earthquake strength and duration, but population and property preparedness as well.  A comparison between rich and poor countries illustrates the dynamic quite well (see chart below the jump).

So far the impact of the earthquake in Nepal - and immediate relief efforts - appear to be mirroring the Haitian experience.  The death toll (so far) is lower than estimated for the region, but hundreds of thousands of survivors are sprawled across large tent cities near Kathmandu, with power, freshwater, food, and hospital services being stretched thin.  International relief agencies are pouring into the country, and the relief effort will inevitably become a rebuilding project, with familiar echoes of Haiti's infamous "Build Back Better" campaign.   Given the impending transition in Nepal, it's worth comparing the lessons of Haiti's experience with the Nepalese context.  

Low building code standards and enforcement

Nepal ranks near the bottom in a list of countries on preparedness for natural disasters.  Despite being located on a known fault-line, Kathmandu, like Port au Prince, did not develop stringent building codes, zoning laws, or urbanization management plans to mitigate risk.  What plans do exist have not been enforced.  According to The Atlantic's City Lab:

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