Decades of conflict, population displacement within and outside of Afghanistan, changes in national political and economic ideologies, and variable climatic conditions (including drought) have resulted in a complex and unsettled landownership and management situation. Land rights are perceived to be highly insecure and disputes are widespread. This instability undermines prospects for the greater investment needed to increase agricultural productivity and enhance economic recovery. This instability also increases the vulnerability of millions of Afghan households to poverty, and the Taliban and others use land disputes to foment general social unrest and conflict.
A new Constitution enacted in 2004 established a legal framework for property rights that safeguards the right of individuals to own property. A 2007 Land Policy addressed bottlenecks in land rights administration and the overlapping authority of institutions, and was followed by the 2008 Law on Managing Land Affairs, which lays out principles of land classification and documentation, governs settlement of land-rights, and encourages commercial investment in state owned agricultural land with opportunities for long leases. The Ministry of Justice, however, estimates that 90% of Afghans continue to rely on customary law and local dispute-resolution mechanisms. More than 30 years of conflict have decimated the centuries-old customary land dispute resolution mechanisms. Those systems that are functioning are stressed by the need to manage the layers of competing interests: populations have moved to urban areas to avoid conflict, and populations displaced by earlier conflicts have made efforts to reclaim both rural and urban properties.
The discovery of the extent of the country’s mineral resources, with an estimated value of US $1 trillion, will put more pressure on the land sector. Mineral resources increase the value of land, intensifying the need to resolve competing claims, to secure land rights for local populations (paying particular attention to protecting the rights of the most marginalized members of communities), and to protect against potential negative impacts, such as large-scale land transactions without local involvement.
The United States Government has already provided significant support to the Government of the Islamic Republic of Afghanistan (GIRoA) in its efforts to: (1) restart economic growth, especially in the agricultural sector and through the rehabilitation of irrigable land; (2) develop local institutions capable of meeting the population’s health and education needs; and (3) strengthen land tenure security through improvements to the legal framework, the implementation of a country-wide land survey, mapping and registration system, and the regularization of land rights in informal settlements. But economic growth and political stability will not be achieved unless and until the GIRoA removes constraints on access to land (especially urban and irrigated agricultural land), provides functional mechanisms to resolve disputes among competing claimants, and provides tenure security to owners and lessees of land in Afghanistan.
KEY ISSUES AND OPPORTUNITIES FOR INTERVENTIONS
- Continued Harmonization of the Legal Framework Governing Land Rights. While substantial progress has been made in revising and updating Afghanistan’s land law and policy, much of the framework governing land rights and administration remains fragmented, contradictory and, in large measure, unenforceable. While customary law is poorly integrated with formal law and policy, it has social legitimacy because it reflects traditional principles supporting conflict resolution and social cohesion. However, customary law often fails to support the principle of equity and the rights of women or other marginalized populations. Donor support for the government’s efforts to create a comprehensive, harmonized legal framework governing land and natural resources in Afghanistan, with particular attention to the rights of women, ethnic minorities, and displaced populations, will help to maintain progress toward a sustainable system of law and land administration.
- Decentralization of Appropriate Land Administration Functions and Support for Disadvantaged Groups in Seeking Services. A combination of efforts could increase land access for disadvantaged groups, strengthen dispute resolution mechanisms and institutions, and formalize the rights of informal settlers. Formal structures, such as the Special Land Dispute Court and the Amlak Office in the Ministry of Agriculture, Irrigation and Livestock (MAIL) have been tasked with focusing on emerging land issues. The Amlak Office is being absorbed into the new Afghanistan Land Authority. Capacity remains limited, however, and village councils remain active in land administration, following customary rules that are inconsistent with national law and policy. Donor support could reduce tensions between central and regional authorities with regard to land administration and land rights, and build on strong community-level institutions. Lessons learned from earlier phases of assistance on land titling and tenure security could be more widely shared to assist local authorities in developing best practices for formalizing land rights, resolving disputes, and addressing the underlying causes of insecure tenure and conflict over access to land. Experience with organization of legal aid services to populations needing assistance could make the local dispute resolution processes more effective.
- Community-Based Forest Management. Traditional natural resource management strategies have broken down under years of armed conflict, growing population numbers, the lack of an agreed legal framework and capacity to enforce those rules that do exist. Afghanistan does not have an agency with overall responsibility for natural resources protection. USAID is one of the few entities focusing on threatened ecosystems in Afghanistan. USAID could potentially further its objectives in biodiversity and economic growth by assisting the government with developing and piloting community-based forest management programs using best practices from Afghanistan and other countries.
Afghanistan is a country under pressure. Fourteen million Afghans, nearly half the population, are extremely poor or vulnerable to extreme poverty. An estimated 80% of Afghans live in rural areas and are dependent on natural resources for their livelihoods. The country’s farmland, pastures, forests, and water resources have suffered from successive years of extreme drought and extended conflict. The population’s traditional methods of coping have been undermined by soil degradation, deforestation, and flooding caused by unsustainable land use practices, military action, and chronic insecurity of livelihoods.
Drought, war, and poverty have forced people to migrate into urban areas, often becoming landless in the process. They have been joined by the millions of refugees returning to Afghanistan. More than half of the returning refugees are unable to return to their place of origin because they have no land or their land has been taken in their absence. In many areas, displacement and disintegration now characterize a society that had historically been defined by networks of reciprocity that guaranteed individual security and social support. Widows, female-headed households, and nomadic communities are the most vulnerable.
The decades of conflict, extended periods of drought, and deterioration of the rural economy have undermined Afghanistan’s historically strong centralized institutions and allowed for the rise of regional power structures. Land administration and judicial institutions lack both the capacity and the authority to manage land and natural resource rights. In much of the country, local elites, warlords, and political factions control land and natural resources through a combination of physical force and customary legal regimes that reflect deeply entrenched power structures.
Afghanistan’s population faces constraints on access to land, insecurity of tenure, and the depletion of natural resources. The resurgence of the Taliban, continued conflict, and growth of the opium poppy industry have created barriers to development. In many cases, reconstruction and development are taking place in a conflict management context as opposed to a post conflict setting.
Within this challenging environment, USAID’s Land Titling and Economic Restructuring in Afghanistan (LTERA) Project (2004–2009) supported the government of Afghanistan in its effort to improve land tenure security through improvements to the legal framework, implementation of a pilot land survey, mapping, and registration system, and regularization of land rights in informal settlements. USAID also supported roadbuilding and agricultural projects that assisted the country in doubling its output of legitimate agricultural products in the 2004–2008 period. The agency doubled its funding for agriculture in FY10.