Legal empowerment for local resource control

ights on the ground, which usually requires identifying right holders,
demarcating boundaries and addressing various other issues. In other
words, provisions like article 13(2) of Mozambique’s Land Act do not in
themselves clarify who has right over what and on the boundaries between
different right holdings. Outside the African context, in Mayagna (Sumo)
Awas Tingni Community v. Nicaragua the Inter-American Court of Human
Rights found that constitutional and legislative provisions protecting
communal property rights, in absence of specific procedures for the
demarcation and registration of communal lands, were not enough to meet
the standard of protection required to fulfil the human right to property
under the ACHR (see above, chapter 2.2.2).
This issue is particularly pressing where resource rights are vested with
private legal entities (as in Mozambique) rather than with local
governments (as in Senegal, Mali and Tanzania). To tackle this issue,
Mozambique’s land legislation provides for a procedure to register collective
land rights. 44
Under Mozambique’s community land registration programme, “local
communities” can register land rights collectively and obtain land titles
from the provincial cadastral services. The land registration process is laid
out in the 1999 Technical Annex. This provides for two distinct types of
community land registration, both of which start upon request by the
community. The first one is the “community delimitation” process, which
starts with awareness-raising and leads to the registration of the
landholding in the National Cadastre (article 5 of the Technical Annex; see
Box 6 below). The second type of process – land demarcation – is more
complex and expensive. It entails more accurate surveying standards, and
44. Land registration is a process to document rights over land – whether ownership, use rights or other.
Several African countries have long had legislation providing for the registration of individual land rights
(e.g. Kenya and, to a much lesser degree, Cameroon, Ghana and Malawi). However, registration programmes
in Africa have proved slow, expensive, difficult to keep up-to-date and hard for poor people to access. As a
result, very little rural land has been registered, and formal tenure covers only between 2 and 10% of the
land (Deininger, 2003; see above). Where titling and registration have been implemented, high monetary,
transaction and other costs discouraged registration of subsequent land transfers, thus making land
registers outdated and undermining their ability to secure land rights. Also, many registration programmes
had negative distributive effects, as those with more contacts, information and resources were able to
register land in their names, to the detriment of poorer claimants; and as holders of “secondary” land
rights (such as women and herders) were effectively expropriated as these rights tend not to appear in the
land register (there is a vast literature on this – see e.g. Shipton, 1988; Atwood, 1990; Migot-Adholla and
Place, 1998; Lund, 1998; Firmin-Sellers and Sellers, 1999; and Platteau, 2000). Community land registration
seeks to address some of these problems through registering land rights with a collective entity rather than
with individuals.
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