land governance assessment framework in the...

LAND GOVERNANCE ASSESSMENT

FRAMEWORK IN THE GAMBIA

THEMATIC AREA 1: LEGAL AND INSTITUTIONAL

FRAMEWORK

Theme 1: Legal and Institutional

Framework

LGI-1: Recognition of

rights

•Rural tenure rights

•Urban tenure rights

•Rural group rights

•Urban group rights

•Opportunities for individualism

LGI-2: Enforcement of

rights

•Communal land records

•Individual property registration in rural areas

•Individual property registration in urban areas

•Women’s rights formalized

•Condominium common property

•Compensation with use change

Dimensions

Indicators

•Non-documentary evidence

•Recognition of possession

•Formal registration fees affordable

•Registration without informal fees

•Urban formalization feasible

•Possession recognized

•Restriction in urban land

•Restrictions in rural land

•Institutional roles separated

•Overlap (horizontal)

•Overlap (vertical)

•Information sharing

LGI-5: Clarity of

institutional mandates

LGI-4: Restriction on

rights

LGI-3: Mechanism for

recognition of rights

LGI-6: Equity and non-

discrimination

•Clear land policy

•Policy includes equity goals

•Policy based on cost/benefit

•Policy implementation monitored

LG1-1 Recognition of a continuum of rights This indicator assesses the extent to which the existing range of rights is recognized by the law.

LGI 1 (i) - Rural land tenure rights are legally recognized

This dimension assess the extent of the legal recognition of the rights held by households in rural areas.

Assessment

A – Existing legal framework recognizes rights held by more than 90% of the rural population, either through customary or statutory tenure regimes.

B – Existing legal framework recognizes rights held by 70% - 90% of the rural population, either through customary or statutory tenure regimes.

C – Existing legal framework recognizes rights held by 50% -70% of the rural population, either through customary or statutory tenure regimes.

D – Existing legal framework recognizes rights held by less than 50% of the rural population, either through customary or statutory tenure regimes.

Findings

Rural areas exclusively in the Regions

Land (Regions) Act recognizes the land rights of all communities .S4 & 5 vests all land in the District Authorities for the use and common benefit, direct or indirect of the communities under customary tenure.

Broad recognition of rights raises some fundamental governance concerns:

Land rights of communities affected by State Lands Act not reconciled with rights not affected.

Designation not understood. Little discussion or sensitization.

Proprietary and contractual rights that arise not sufficiently spelt out in the Act.

Conflict of perception on the effect of section 7 on pre-existing rights. Is it a conversion to freehold State land. Will the land revert at the end of 99 year lease.

Policies underpinning deemed lease by State Lands Act as a proprietary estate abandoned.

Land Regions Act remains a colonial Act with little substantive change since 1968. Some provisions no longer relevant to current circumstances.

No title is created except – evidence of ownership usually rates receipt or CoO.

Findings (cont’d.)

Customary law too informal. Not written. Heavily reliant on traditional institutions/knowledge

Traditional institutions adversely affected by changes in local government system and support structures eroded.

Customary law principles suffer with the death of depositories of traditional memories.

Traditional landmarks demarcating boundaries i.e. between communities/families obliterated with the disappearance of forest cover and other climatic change resulting in frequent boundary disputes.

Leases have been created without consent of traditional owners.

Concurrence or understanding of designation of state lands or implications.

2011 Commission of Inquiry into Land Allocation (CILA) revealed significant abuse of authority by public officers because of such designations.

Independence of district tribunals presided over by (Sefo and mostly Alkalos) sometimes questioned. Combined roles (adjudicatory and executive)in the same person raise constitutional questions on the separation of powers.

Recommendations

A comprehensive review of the land Acts, implementation and impact should be

carried out with a view to developing a coherent land policy and laws that addresses the current challenges and needs of rural and urban populations in accordance with subsisting rights. The review should address the following issues:

the need for the codification or restatement of customary law principles, to avoid their discretionary application.

The current system of designating state land under the State lands Act which lacks transparency.

The fact that lands are not mapped or demarcated and ownership properly identified is the source of most conflicts. All land should be mapped, demarcated/ownership identified and determined so that customary titles can be recorded to avoid conflicts caused by disputes over boundaries (individual, ‘kabilo’ and village ownership boundaries)

The dual role of district Sefolu as head of both District Authority and District Tribunal is a substantial role conflict having regard to the constitutional principles on the separation of powers. The two offices should be separated.

District chiefs are best utilized in the alternative non adversarial dispute resolution systems and not formal adjudicatory processes.

A separate structure for the District Tribunal under the Judiciary is recommended.

LGI 1 (ii) - Urban land tenure rights are legally recognized

Assesses the extent of the legal recognition of the rights held by households in urban areas.

Assessment

A – Existing legal framework recognizes rights held by more than 90% of the urban population, either through customary or statutory tenure regimes. (Banjul and Regions)

B – Existing legal framework recognizes rights held by 70% - 90% of the urban population, either through customary or statutory tenure regimes.

C – Existing legal framework recognizes rights held by 50% -70% of the urban population, either through customary or statutory tenure regimes.

D – Existing legal framework recognizes rights held by less than 50% of the urban population, either through customary or statutory tenure regimes. (KMA)

Findings

Rights of all communities in the Region urban or rural have been recognized by the Lands (Regions) Act as beneficial owners under customary law. Rights of urban populations within designated State land areas are also fully recognized as deemed leaseholders

The Score is ‘A’ for Banjul and other urban areas that fall under the Regions with reservation (no demarcation, and limited awareness of the general public of the tenure implications of existing law, including public officers).

Rights of all occupiers of land in KMA who do not hold a freehold or leasehold grant are not similarly treated by the State Lands Act. Rights in KMA are recognized for those who have formal leases from the State.

Occupants without leases but have possession are not similarly treated. Act addresses existing leaseholders by extending their term to 99 years but is silent on the majority of “occupiers” who have no lease and who regard themselves as customary owners. It merely provides in section 11A that the DLS shall process applications for grants of State Land.

Estimated as affecting about 30% of urban population using the GBOS population figures in relation to number of leases in KMA.

Recommendations

The comprehensive review of the land Acts should

address:

The status of occupiers of land in Kanifing Municipality who do not hold leases. This affects the greater majority of the people in that area.

LGI-1 (iii) - Rural group rights are formally recognized Assesses the extent to which regulations concerning group rights in rural areas define how user groups can organize themselves, impose internal rules, interact with the outside, and call on external agencies to enforce rules.

Assessment

A – The tenure of most groups in rural areas is formally recognized and clear regulations exist regarding groups’ internal organization and legal representation.

B – The tenure of most groups in rural areas is formally recognized but ways for them to gain legal representation or organize themselves are not regulated.

C – The tenure of most groups in rural areas is not formally recognized but groups can gain legal representation under other laws (e.g. corporate law).

D – The tenure of most groups in rural areas is not formally recognized.

Findings

Group rights over land are not recognized by law but recognition can be

acquired.

“Group” in the Gambian context, is an economic and/or social group that works towards a mutually accepted objective with rules and regulations governing group activities.

Group forms that are recognized by law are:

Companies including not-for-profit companies – Companies Act (Cap.95:01)

Friendly societies or clubs – under the Friendly Societies Act – defined as a number of persons formed for the purpose of raising by voluntary subscriptions of the members with or without donation a fund for specified social objects

NGOs being not-for-profit companies that are further registered as NGOs with the NGO Affairs Agency.

CBOs are community groups recognized as working with different communities in rural areas.

Cooperatives registered under the Cooperative societies Act (Cap.50:02).


Groups not referred to in land Acts.

Rural group rights over land are not formerly recognized. Recognition of group rights over land does not give them legal ownership.

Nothing preventing a group from applying for land either under customary law

Thousands of women groups (mostly farmers) seeking to turn user rights to recognized title. Agreements with land owners recognized by the Alkalo, Chief and Governor as giving them title.

Recommendations

The comprehensive review of the land Acts should include a review of group rights.

groups who have an economic interest over land should be enabled to acquire recognition without undue difficulty.

introduction of simplified procedures for the formal registration of rural groups so that they can be fully recognized and rights acquired by them can be secured through perpetual succession.

LGI-1 (iv) - Urban group rights are recognized in informal areas This assesses the extent to which regulations concerning group rights in urban areas define how user groups can organize themselves, impose internal rules, interact with the outside, and call on external agencies to enforce rules.

Assessment

A – Group tenure in informal urban areas is formally recognized and clear regulations exist regarding the internal organization and legal representation of groups.

B – Group tenure in informal urban areas is formally recognized but ways for them to gain legal representation or organize themselves are not regulated.

C – Group tenure in informal urban areas is not formally recognized but groups can gain legal representation under other laws.

D – Group tenure in informal urban areas is not formally recognized.

Findings

Urban groups are not treated any differently from rural

groups. The definition of ‘group’ adopted for LGI-1(iii) was extended to this dimension. The same analysis and adopted and the same score applied.

Recommendations

Same as LGI-1(iii) - comprehensive review of the land Acts should include a review of group rights.

LGI 1 (v) - When desirable, opportunities for tenure individualization exist and are accessible This assesses whether the law provides adequate mechanisms to accompany the transition of customary or collective tenure towards individualization if so desired by land users.

Assessment

A – When desirable, the law provides opportunities for those holding land under customary, group, or collective tenure to fully or partially individualize land ownership/use. Procedures for doing so are affordable, clearly specified, safeguarded, and followed in practice.

B –When desirable, the law provides opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use. Procedures to do so are affordable and include basic safeguards against abuse but are not always followed in practice and are often applied in a discretionary manner.

C –When desirable, the law provides opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use. Procedures are not affordable or clear, leading to widespread discretion or failure to apply even for cases where those affected desire to do so.

D – Although desirable, the law provides no opportunities for those holding land under customary, group, or collective tenures to fully or partially individualize land ownership/use.

Findings Laws provide opportunities for tenure individualization by leasing or

obtaining CoO.

Main objectives of State Lands Act, 1991 - to introduce a unitary title system in designated areas. (See long title of the Act which provides that “an Act to amend the law relating to administration of land in The Gambia to introduce a unitary title system in designated areas and to make provision for connected matters.”

Land held under customary tenure may be individualized with the approval of customary owners by:

Obtaining an individual title to customary land – the procedure is not specified;

Converting customary title to an individual leasehold title under the Land Regions Act –the enabling provision is in the Act but the leasing procedure is not clearly specified.

Obtaining a lease over deemed leasehold title under section 7 of the State Lands Act. - The procedure and cost are outlined in the State Land Regulations.


Affordability is a major concern. Takes years to lease property and the procedure to be followed is not clear. An applicant has to move to and fro from the Alkalo, District Authority, Governor’s Office and Central Government. The cost involved in the process is also not specified. Monies are paid to the Alkalo, District Authority, Local Physical Planning Office in the Districts etc. There are many informal fees to be paid that are not prescribed anywhere or regulated including sums to be paid to the Alkalo or Chief.

The procedure is also cumbersome and lacks transparency.

Too many actors involved including unqualified surveyors who are mostly public officers. Surveys Act 1991 provides for the licensing of surveyors but the Act has not been implemented. The Act also provides for the setting up of a Surveyors board -not yet set up.

Recommendations Land legislation should be supported by comprehensive subsidiary

legislation to ensure that the laws are fully implemented, including:

Transparent procedures for fixing and publication of all the fees to be paid, and generally, removing the amount of discretionary authority involved.

Regulations should be extended not only to the processes related to the issue of state grants, but the application processes for Regional grants/ registration of unregistered land.

Extensive sensitization and consultation of the general public should be undertaken in respect of existing land tenure rights, proposed reforms and the development of a land policy.

Recommendations Pending such review:

There is need for sensitization across the board including public officers about the purpose and of effects of the State Lands Act.

The regulatory mechanisms processes and procedures for the enforcement of the State Lands Act should also be reviewed.

All processes should be overhauled and streamlined.

Processes should be automated where possible.

The Surveys Act should be implemented- only licensed surveyors should be allowed to carry out surveys as per the Act.


Framework


rights







rights







Dimensions

Indicators













LGI-5: Clarity of



rights




discrimination





LGI-2 Enforcement of rights

Assesses whether the rights recognized by law are enforced (including secondary rights as well as rights of minorities and women).

LGI 2 (i) - Surveying/mapping and registration of rights to communal land

Assesses the extent to which Boundaries to communal land have been surveyed / mapped and the communal rights registered. ‘Communal land’ is land over which a rural group or community has rights or access to. Such land may be held under customary tenure and in some cases, occupants may belong to ‘indigenous communities’ or their equivalent (e.g. ‘scheduled tribes’ in India) as defined by law.

Assessment

A – More than 70% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered.

B – 40-70% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered.

C – 10-40% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered.

D – Less than 10% of the area under communal or indigenous land has boundaries demarcated and surveyed and associated claims registered.

Findings

Most communal land is not mapped. Only leaseholds are mapped. Less

than 10% of all land in the rural areas (which are generally communally owned) are leased.

REGIONS COMPOUNDS REGISTERED(leased)

WCR 106,156, 9,074

URR 14,061 477

CRR - -

LRR 7364 127

NBR 16,883 1,070

Systematic demarcation, survey and registration of rights has never been a practice for communal lands. Registration is purely ‘voluntary’. Some communal gardens have been mapped and rights registered – mostly as precursor for acquiring a loan or for attracting some form of sponsorship that requires Land Title. Most cases communal lands are not mapped until a transaction takes place.

Recommendations

All communal land should be mapped and boundaries demarcated. This

would lessen exploitation and abuse as well as land disputes. The source of most problems including abuses in the land tenure system is the fact that land in generally is not mapped, demarcated, owners identified and registered. A system to ensure that this is carried out should be put in place as a matter of priority.

Part of this system, include process of ‘Land Adjudication’ whereby all land parcels are identified and the rights therein recorded to evolve into a comprehensive Register of Titles. The benefits of Registration (Security of Tenure and ease of Conveyancing) can only be maximized by the existence of such comprehensive and up to date records.

The system of land adjudication should be supervised by a Commission/Special Court instead of the formal court system. Such a court or Commission should not be bound by formal legal rules.

LGI 2 (ii) - Registration of individually held properties in rural areas Assesses the extent to which majority of individual properties in rural areas are formally registered. Here ‘registered’ does not necessarily mean that the final certificate or title has been issued. ‘Registered’ may mean that the rights are recorded unambiguously in the land administration system and there are generally few disputes over the recorded information.

Assessment

A – More than 90% of individual properties in rural areas are formally registered.

B – Between 70% and 90% of individual properties in rural areas are formally registered.

C – Between 50% and 70% of individual properties in rural areas are formally registered.

D – Less than 50% of individual properties in rural areas are formally registered.

Findings

Limited individual ownership in rural areas -land is communally or family owned.

May be recorded for rates purposes is not a registration. Only the name of the rate payer and the location of the property are recorded not accompanied by a cadastral plan or map.

Process for registration of individually held lands in rural areas require some 14 steps.

Almost all the processes are primarily concentrated at the Regional Governors Offices and in DLS Banjul.

Registration process is usually longer if the land was first purchased before commencement of the process for registration.

The review showed that out of a total of approximately 144,464 properties only 10,748 (7.4%) was registered/leased.


The low proportion of registered rural lands may be attributable to the following factors:

Absence of pressures on land due to low population concentrations – high rural-urban migration (especially of the youth).

Absence of commercial agriculture means land is readily available and rural communities don’t feel the need for land demarcation and registration.

Limited market for the buying and selling of land.

Stability of the existing customary land tenure system.

Time consuming and complex processes for land registration.

Recommendations

Need for sensitization of land owners on the

benefits/rewards of land registration for security of tenure and ease of transactions in landed assets.

The mapping and demarcation of all land should be accompanied by the introduction of an appropriate and automated Registration of Titles Act/system to guide and support the process.

Policy changes should aim to simplify and shorten registration processes at both the approval and document preparation stage.

LGI 2 (iii) - Registration of individually held properties in urban areas Assesses the extent to which majority of individual properties in urban areas are formally registered.

Assessment

A – More than 90% of individual properties in urban areas are formally registered.(Banjul)

B – Between 70% and 90% of individual properties in urban areas are formally registered.

C – Between 50% and 70% of individual properties in urban areas are formally registered.

D – Less than 50% of individual properties in urban areas are formally registered. (Rest of Country)

Findings

One national Land/Deeds Registry (located at the AGC in Banjul) where all land rights and transactions on land are registered, whether urban or rural.

Data is unorganized and not sorted by category. Many registers/volumes in a bad state and not legible.

Random review of the registers show vast majority of registered land is to individuals.

In Banjul where ‘Freehold’ Titles (absolute in possession) predominates all properties are formally registered in the Banjul Streets Register kept by the AGC Land Registry. The BCC also has a complete record of all land owners in Banjul.


Less than 50% (21%) of individual held land in urban areas is registered.

(Number is arrived at by comparing the number of leased properties in the 2 most populous urban areas KMA and West Coast Region plus Banjul with the number of rated properties. KMA by end 2012 has 19,240 leases compared to the number of rated properties - 33479. This indicates that 57% of properties were registered. The number of registered properties in West Coast Region is 106 146 compared to the number of leases (9074) – 8.56% whereas all properties in Banjul are registered – 4932. The figure of registered properties for other urban areas is not available. However having regard to the total numbers of leasehold properties from all regions, that figure even if available would not affect the score.)

A significant number of properties in Banjul are registered to persons long dead. Many of the estates are not administered and the name on the original title may not be changed until there is a transaction on the land.

Recommendations The land records ideally should be synchronized with the DLS Cadastre

and the land records held at the Governors’ offices.

A Land Resources Information System (LRIS), which is comprehensive and up-to-date in content, and shared by all the institutions concerned with the management of land resources and the rights therein is crucial.

To give effect to any reforms of the land registry and cadastre the Institutions responsible (DLS, DPPH, AGC) for allocation and registration of land rights need extensive strengthening in terms of human resources development, technological capability, operational logistics and mobility.

The Survey Act 1991 which would have enabled private Licensed Surveyors to take responsibility for the preparation of Lease plans should also be put into operation to reduce the pressure on the DLS. The Act has made provision for the appointment of a Survey Board, which would issue Licenses to duly qualified and certified Surveyors who could then prepare cadastral plans and other ownership documentation according to a defined uniform standard.

LGI 2 (iv) - Women’s rights are recognized in practice by the formal system (rural/urban)

Assesses the extent to which the tenure rights of women are enforced through the registration of land in their names or jointly. Women’s rights may be registered individually or jointly, where jointly means that a woman is registered with others in the records. These others may be a husband or other family members or may include members of a wider group.

Assessment

A – More than 45% of land registered to physical persons is registered in the name of women either individually or jointly.

B – Between 35% and 45% of land registered to physical persons is registered in the name of women either individually or jointly.

C – Between 15% and 35% of land registered to physical persons is registered in the name of women either individually or jointly.

D – Less than 15% of land registered to physical persons is registered in the name of women either individually or jointly.

Findings Women’s rights in land are recognized by the formal system in both

urban and rural areas. statistics on number of individual lands owned and registered to women not available.

Land Registry are not currently compiled according to gender - a review of the numbers of leases registered in the past 10 years from all local government areas suggest that less than 20% are registered to women.

Last 5 year trend suggests shift in favour of public land allocation to women. SSHFC - 56% of all plots allocated to women. DLS indicate 34% of plots in last residential layout allocated to women.

Formal system of land allocation appears to be gender neutral. Allocation is said to be purely based on qualifying criteria determined by MOL. Both DLS and SSHFC Broad criteria applied are said to be: nationality, maturity (over 21), availability of the means to develop, (SSHFC) not having previously benefited, and number of dependents.

In rural areas it is the Women Kafos (groups) and not individual women who are increasingly seeking to register land for agricultural purposes (market gardens).


Gender inequities in land ownership – a function of ingrained traditional,

religious and cultural practices particularly in the rural areas subject to customary law. Women rights in land are determined by existing land tenure laws, customary practices and inheritance laws.

Constitution is not discriminatory per se against women as a gender, it nevertheless recognizes women’s inheritance rights as granted under their personal law. Sharia law- females are entitled to half the portion of a male’s share of the estate. This affects more than 90% of the population who are Muslim and subject to the Islamic law of inheritance.

Customary law or practice discriminates against women. Under customary tenure, land is regarded as communally owned by clans or families. Women have access to the use of land for agricultural purpose generally but usually through their spouses or male relatives. Ownership is a serious challenge.

Recommendations

The low ownership of land by women is a critical human rights issue that needs to be tackled.

The government should set the national mood for country wide debate on women’s property rights and create the necessary policy and legislative environment to address the protracted property issues for women.

A policy should be adopted for the systematic replacement of informal systems of land ownership with a formal system with particular attention to women’s rights issues.

LGI 2 (v) - Condominium regime provides for appropriate management of common property An essential element of good governance regarding condominiums is not only that the rights of the dwelling itself are recognized but that there is recognition of, and clear arrangements to manage the common property areas (driveways, parking, gardens, stairwells etc.) that are necessary for the occupants of the condominium to enjoy the full use of the property.

Assessment

A – Common property under condominiums is recognized and there are clear provisions in the law to establish arrangements for the management and maintenance of this common property.

B – Common property under condominiums is recognized but the law does not have clear provisions to establish arrangements for the management and maintenance of this common property.

C – Common property under condominiums has some recognition but there are no provisions in the law to establish arrangements for the management and maintenance of this common property.

D – Common property under condominiums is not recognized.

Findings

Apartment regimes other than tenancy arrangements are not common.

In recent times real estate companies have introduced the concept of apartment ownership.

There is no law that recognizes or regulates common property under apartment systems other than general common law principles.

Shared spaces in rented apartment complexes are subject to landlord/tenant agreements under general contract law.

Arrangements for the management and maintenance of the properties are subject to the contractual arrangements between landlords and tenants and general legal principles.

Recommendations

The comprehensive legislative reform recommended should address the subject of apartment systems and provide for the regulation of common property in such systems including tenancy systems.

LGI 2 (vi) -There is compensation for loss of rights due to land use changes Assessment

A – Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people have comparable assets and can continue to maintain prior social and economic status.

B – Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people have comparable assets but cannot continue to maintain prior social and economic status.

C – Where people lose rights as a result of land use change outside the expropriation process, compensation in cash or in kind is paid such that these people do not have comparable assets and cannot continue to maintain prior social and economic status.

D – Where people lose rights as a result of land use change outside the expropriation process, compensation is not paid.

Findings

S22(2) of the Physical Planning and Development Control Act provide Minister may direct change of use in the public interest. Compensation may be directed to be paid (S22(3).

Land use changes responsibility of the DPPH - DLS for Land Acquisition and Compensation.

The only provision in the law is the Land (Acquisition and Compensation) Act, 1991. This makes provision for the compulsory acquisition (expropriation) of land by the State for public purposes.

The law is not clear on compensation when it comes to land use change as it is in compulsory acquisitions. Compensation for land use change is discretionary. There is no system put in place. No procedures guiding the process.

In planned areas changes in land use occur in two categories- re-designation from one use to other. Method to determine compensation for “loss of user rights” not defined in the legislation.

Findings

From the period 2005 – 2010 allocations of land was made from 17 layouts created in State land or designated State land areas . Apart from 3 layouts, Kanifing, Katchikally, and Old Jeshwang, the layouts were created from customary owned lands previously agricultural in peri-urban areas. Numerous complaints from land owners that they were not compensated. CILA found procedures for change of land use and requirements for compensation ignored.

Second category of land use change occurs where an individual with exclusive possession of land changes use to suit changing circumstances of that land. In this case the issue of compensation does not arise as no other rights are adversely affected instead individuals wishing for such change in land use are required to pay a prescribed fee to the Planning Authority, and to also forfeit a portion of the land to the state if it was leased land.

Compensation is not paid for change of land use to forests and wildlife parks, protected areas, and sites of historic and cultural significance.

In practice therefore, different types of Land use changes do occur as and when required and compensation may be paid but not consistently. Where compensation is paid it does not enable the land owners have comparable assets to continue to maintain prior social and economic status.

Recommendations

A comprehensive revision of the compensation system for

land use change, structures and laws is required.

Law on compensation for land use change should be clear.

A uniform compensation process should be prescribed as a standard formula. The method of compensation should be transparent. Not only expropriation issues, but loss of land rights arising from change of land use should be clearly addressed.


Framework


rights







rights







Dimensions

Indicators













LGI-5: Clarity of



rights




discrimination





LGI-3 Mechanisms for recognition of rights

Assesses the consistency and affordability of rights recognition mechanisms (formalization) with existing tenure practices.

LGI 3 (i) - Use of non-documentary forms of evidence for recognition of property claims

Assessment

A – Non-documentary forms of evidence are used alone to obtain full recognition of claims to property when other forms of evidence are not available.

B – Non-documentary forms of evidence are used to obtain recognition of a claim to property along with other documents (e.g. tax receipts or informal purchase notes) when other forms of evidence are not available. They have about the same strength as the provided documents.

C – Non-documentary forms of evidence are used to obtain recognition of a claim to property along with other documents (e.g. tax receipts or informal purchase notes) when other forms of evidence are not available. They have less strength than the provided documents.

D – Non-documentary forms of evidence are almost never used to obtain recognition of claims to property.

Findings

Non documentary forms of evidence are acceptable in court based on the Evidence Act, 1984. Section 46 of the Evidence Act provides as follows: ‘Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.’

The decision of the Supreme Court of the Gambia in the case of Fatou Badjie v. Joseph Bassen [2002 – 2008] 2GLR page 115 - title to land may be proven by traditional evidence when other forms of evidence are unavailable. So non – documentary forms of evidence can be used alone to obtain full recognition of claims to property when others forms of evidence are not available.

In practice however cogent traditional evidence in proof of claims in the High Court is not always forthcoming and when available is sparse making it difficult for the courts to rely on such evidence.

At the administrative level there is no bar to the acceptance of non-documentary forms of evidence if there is no other evidence available.

Recommendations

It is important that Legal Practitioners are sensitized on

the law and procedural requirements and possibilities for establishing title through oral evidence. The consistent application of land law principles is desirable. Training for lawyers and judicial officers on land laws and related principles should be made available through collaboration between the Bar Association and the Judiciary with capacity support.

LGI 3 (ii) - Formal recognition of long-term, unchallenged possession Assesses the presence of legal process to recognize long-term, unchallenged occupation of land.

Assessment

A – Legislation exists to formally recognize long-term, unchallenged possession and this applies to both public and private land although different rules may apply.

B – Legislation exists to formally recognize long-term, unchallenged possession but applies only to one specific type of land (e.g. either public land or private land).

C – Legislation exists to formally recognize long-term, unchallenged possession but due to the way this legislation is implemented, formal recognition is granted to very few or no applicants for recognition on either public or private land.

D – Legislation to formally recognize long-term, unchallenged possession does not exist.

Findings

Legislation does not exist to formerly recognize long

term unchallenged possession. All land is either, vested in the District Authorities, communally/individually/privately or State owned.

LGI 3 (iii)- First-time registration on demand is not restricted by inability to pay the formal fees

Assessment

A – The costs for first time sporadic registration for a typical urban property does not exceed 0.5% of the property value.

B – The costs for first time sporadic registration for a typical urban property does not exceed 2% of the property value.

C – The costs for first time sporadic registration for a typical urban property does not exceed 5% of the property value.

D – The costs for first time sporadic registration for a typical urban property exceeds 5% of the property value.

Findings

Formal fees for first time registration are a major concern.

Two categories of urban areas can be identified: official’ allocations within a Government demarcated layout.

Allocations by SSHFC fall under this category. Registration is straight forward process and cost much less. No capital gains tax. Deed Plan provided.

Plots in ‘old’ settlements, having been allocated by the sitting Alkalo at the material time. -Leasing involves preparing of ownership documentation (sale or alkalo certificate) planning approvals, field survey and preparation of cadastral plans, ministerial approval before registration. First-time registration on demand of properties in this category may be restricted by inability to pay the formal fees.

Findings (cont’d.) Challenges:

Lack of adequate capacity for survey, demarcation.

Cadastral plans covering the country are not comprehensive and up-to-date, nor are they computerized. Time requirements for conduct of surveys hence long, coupled with lack required resources/ personnel/ logistics.

Approval processes time-consuming as approving authorities are not centrally located, results inlease files being physically transported to various places during the approval processes.

Where change of land use is involved, the cost is determined by the type of land use category and location. D5000for change of land use for residential, commercial and industrial land, and forfeiture of 50% of the land area shall be forfeited to the State.

Property disputes during the registration process.

Where transfer involved, formal fees are made very high by tax rate. 5%-25% or more for capital gains tax if the property was first purchased before registration. The cost charged for planning clearance, though not high (D200) ought not to be necessary if the land use plans were up to date.

Recommendations

Procedures for the formalization of property ownership from unplanned holdings

(urban or rural) need to be based on clear regulations instead of the rather opaque and unclear current situation.

The procedures should be set out clearly and widely disseminated and consistently applied. One of the challenges is that procedures are not always followed for expediency reasons, and informal practices, over time, become crystallized as the norm. This can only be avoided when procedures are explicitly documented and disseminated.

The steps involved in the registration processes should be streamlined and shortened. A formal step by step process with a time line is desirable for all registration processes. This should be regulated.

Capital gains tax should not be charged on first time registration. This would encourage landowners to register their holding.

There should be an initiative in place for the planning of the whole country once and for all, to eliminate the need for clearance/planning fees on first time registrants. This should be followed by the systematic registration of all land titles because the current process for determining land title is cumbersome lengthy and insecure giving rise to exploitation and conflict.

LGI 3 (iv) - First-time registration does not entail significant informal fees

Assesses as to whether the demand for first time registration is not restricted by demands for unofficial or informal fees.

Assessment

A –There are no informal fees that need to be paid to effect first registration. B –There are informal fees that need to be paid to effect first registration, but the level of informal fees is significantly less than the formal fees. C –There are informal fees that need to be paid to effect first registration and the level of informal fees is about the same as the formal fees.

D – There are informal fees that need to be paid to effect first registration and the level of informal fees is significantly higher than the formal fees.

Findings

In addition to formal fees, applicants are confronted with

significant amounts of informal fees associated with registration. In most cases these fees can be higher than the formal fees. Associated informal fees include:

Fees to intermediaries i.e. property agents can be up to 10% of transaction value. Property agents are neither registered nor licensed.

Fees for preparation of location plans by unlicensed surveyors or planners (discretionary).

Fees charged by Chiefs and Alkalos’ (discretionary) can be up to 10% of transaction value.


Transport and other costs to follow up application and the conduct

of field surveys for the preparation of cadastral plans.

Professional fees to lawyers (if involved).

High informal fees are a significant disincentive to persons who would normally like to register their properties. The composition of the fees is itself not clear. Typically, payment to lawyers if involved), unlicensed surveyors or planners (who are mostly hired from DPPH), Alkalos and district chiefs, are discretionary and can be higher than the formal fees. In addition, officers in the DLS/DPPH may have to be “tipped” to expedite the process.

In most cases the level of informal fees paid out can be higher than the level of formal fees.

Recommendations All fees should be formalized at all levels including fees paid

to local authorities including the Alkalos and chiefs and the structure widely publicized. Alkalos and Chief’s should not have the authority to arbitrarily charge fees for executing their duties as is the case in the current system.

The fee structures once determined should be published and widely disseminated.

Poor human resource capacity and low salaries contributes to the pervasive corruption in the system. This should be addressed. Staff should be trained and better remunerated to reduce the temptation on their part for corruption and malpractice.

The culture of expectation of tips by paid government workers to execute their statutory functions must be eradicated.

LGI-3 (v) - Formalization of urban residential housing is feasible and affordable

Assessment

A – The requirements for formalizing housing in urban areas are clear, straight-forward, affordable and implemented consistently in a transparent manner. B – The requirements for formalizing housing in urban areas are clear, straight-forward, and affordable but are not implemented consistently in a transparent manner. C – The requirements for formalizing housing in urban areas are not clear, straight-forward, or affordable but many applicants from informal areas are managing to satisfy the requirements.

D – The requirements for formalizing housing in urban areas are such that formalization is deemed very difficult.

Findings

Formalization” of urban housing involves securing land titles or registering housing units.

Land ownership in unplanned areas based customary law while informal areas are likely to have been illegally occupied in the first instance.

Channels for formalizing land and housing units are:

Land title: 3 forms: the conveyance for freehold property, the lease for registered property (outside Banjul) and CoO.

CoO most common process starts at local DPPH offices based on verification by alkalo and sefolo;

Leases are issued by MOL or MOL with DA (Region). Leases offer greater security of tenure than CoO but process is more centralized, procedures lengthy, cumbersome and costly.

Leases for formal or planned areas easily obtained based on letters of allocation from DLS, SSHFC and others. Plots in unplanned areas are more difficult to process.


Housing: Residential units in planned/formal and unplanned/informal areas can

be formalized by securing a DP from the DPPH prior to commencement of the building process. DPs can also be issued after completion of construction or any time thereafter. Documentation include: proof of ownership, technical drawings and designs that meet a variety of criteria based on public health considerations (ventilation, drainage, and so forth).

Aside from DPs, other statutory requirements such as certificates of completion, occupancy, etc., are not enforced and the public is largely unaware of these.

Requirements for formalizing titles generally known and reasonable information. Procedures for acquiring a CoO accessible as persons and institutions involved locally based (alkalo, seyfo, local physical planning office).

Information on acquiring leases are not as widely disseminated and typically assistance is required from DLS/DPPH personnel for which informal payment is required, in addition to statutory payments such as land rent, stamp duty, etc., if document is to be secured within a reasonable time frame.

Plots from unplanned areas can generally be formalized except if conflicting claims.


Few settlements Kotu Quarry, Old Jeshwang – Airport corridor which are labeled illegal so that formalization is not possible.

Justifications for Kotu Quarry include poor storm-water drainage and high propensity to flooding during the rains while the Old Jeshwang area has long been designated for future development of a highway to the airport.

Periodically also, leases to identified areas may be under “embargo” while government deliberates on possible future development options. An example of this is the BatoKunku settlement in the Kombo North. There is little institutional capacity for urban planning and even lesser capacity for urban intervention. The most recent Land-Use Plans are about 30 years old. DPPH, is barely able to maintain records on developments currently “on-the-ground” let alone plan and direct such development.

Absence of government motive for effective urban development planning combines with minimum capacity for actual planning interventions underlie shortcomings in the urban land-use planning domain.

Recommendations

The procedures for the formalization of property ownership from unplanned holdings (urban or rural) need to be based on clear regulations instead of the rather opaque and unclear current situation. The procedures should be set out clearly and widely disseminated and consistently applied. One of the challenges is that procedures are not always followed for expediency reasons, and informal practices, over time, become crystallized as the norm. This can only be avoided when procedures are explicitly documented and disseminated.

Complete institutional overhaul of the sector required: Myriad activities required for proper urban planning and intervention should be identified through a comprehensive and wide-ranging study which should also define a matrix of the institutional configuration required for sustainable implementation of activities.

Equally important, an effective monitoring and evaluation (M&E) mechanism that, inter alia, sets out clear targets for the various actors and participants and measures organizational effectiveness at achieving specified sectoral objectives should be designed.

Areas for intervention should include:

Study and research-Implement a comprehensive urban planning and land-use study.

Recommendations (cont’d.)

Institutional Analysis - detailed analysis of institutions and actors

currently active in the urban planning sector and identify strengths and weaknesses in current performances. Alternative actors and mechanisms better suited to effect implementation of the various sectoral activities should be identified, including actors (other than central government) that may have relevant expertise; the UT G MDI and private consultants should be considered.

Ensure institutional sustainability including human resources and financing; e.g GAMWORKS model. self-financing mechanisms (assess fees for land data and services).

Specific Areas for Intervention:

Specific areas to be covered; review current land-use planning procedures to allow for public participation;

Improved dissemination of information related to securing land titles, transfers and land-use changes, and procedures for acquiring DPs.

Recommendations (cont’d.)

Facilitate process of “formalization” by locating planning technicians in local

offices (most local authorities have established neighborhood offices for collection of land rent and other payments); technicians can advise on procedures for formalizing land and buildings and provide relevant forms;

Collect land and land-use data in Greater Banjul Area (GBA) and regional towns; process, analyze and store data using such software as GIS; make available to other parties at a price that enables cost-recovery and therefore sustains activity;

Provide information on those areas where formalization of land/buildings is not possible, with reasons; disseminate widely;

Simplify technical requirements for development permits and improve equitable access by differentiating between more stringent standards and costly permits for modern structures and less onerous standards and lower costs for traditional buildings.

Preparation of a comprehensive national plan (master plan) that is strictly followed with allowance for change of use.

LGI 3 (vi) - Efficient and transparent process to formalize possession Assesses if processes to regularize the informal occupation of land are clearly defined, transparently and efficiently implemented.

Assessment

A – There is a clear, practical process for the formal recognition of possession and this process is implemented effectively, consistently and transparently.

B – There is a clear, practical process for the formal recognition of possession but this process is not implemented effectively, consistently or transparently.

C – The process for the formal recognition of possession is not clear and is not implemented effectively, consistently or transparently.

D – There is no process for formal recognition of possession.

Findings

Formalization of possession in deemed leased areas or the Regions after

CoO obtained regulated by State Lands Act and regulations.

Procedure for obtaining CoO is not regulated. Procedure ordinarily is clear and practical but because unregulated lacks transparency.

Possession in KMA can only be formalized on proof of acquisition of a valid possessory title either by inheritance, purchase, or adverse possession. No provision for squatters to formalize possession.

No informal occupations of public lands recorded in the past year. Outstanding cases not yet resolved. Because of significant encroachment in the TDA there is a total ban on issuing physical planning clearance or processing land transfers in that Area. The ban is not supported by any legal measures nor has it been published.


Other long standing occupations like the Kotu Quarry and New Jeshwang

by-pass was not formalized because occupiers (Kotu Quarry) were relocated or forcibly removed.

Property rights are not demarcated generally and as indicated above there is no law on the registration of title to land.

No possibility of formalizing occupation of private land. Disputes are settled by the court system.

Formalization is generally based on proof of previous ownership. An illegal occupier of public land may be able to pay rates but may not be able to formalize same by obtaining CoO or a lease.

For most people a rates receipt may be sufficient for most purposes. No process whereby illegal occupation of public land (state land) can be formalized.

Recommendations

See LGI 3(v)


Framework


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LGI-5: Clarity of



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discrimination





Restrictions on rights (LGI-4) This indicator assesses the justifications of restrictions on land rights.

LGI 4 (i) - Urban Land Use, Ownership and Transferability Restrictions Assess the potentially harmful impact of land rights restrictions in urban areas.

Assessment

A – There are a series of regulations that are for the most part justified on the basis of overall public interest and that are enforced. B – There are a series of regulations that are for the most part justified on the basis of overall public interest but that are not enforced. C – There are a series of regulations that are generally not justified on the basis of overall public interest but are not enforced. D – There are a series of regulations that are generally not justified on the basis of overall public interest and are enforced.

Findings

There is some enforcement of restrictions however discretionary.

Restrictions on “ownership” generally geared towards ensuring reasonable distribution of land justified.

Requirement for personal endorsement by MOL titles, transfers/ mortgages crates administrative bottlenecks resulting in a cumbersome processes not so justified.

Land ownership restrictions in reserve areas, parks, road networks, etc. and where land use contradicts land use plans, transferability, where ownership is not established and plot sizes.

Enforcement major challenge - limited proactive effort to enforce restrictions due to a lack of capacity on the part of the public agencies concerned.

Some restrictions are outdated e.g. non-indigenes are defined as not indigenous to the provinces.

Restrictions relating to ownership by non-Gambians have no supporting regulations.


Restrictions on plot size residential urban land fairly easy to bypass for example,

by taking out 2 separate leases for land above 1,000m2.

Processes involving transfers, mortgaging, etc., of leased land require consent of MOL capital gains tax and other statutory payments. Transfers involving Certificate of Occupancy require signature of village and district chiefs and payment of capital gains tax, as well.

Change of land use, from agriculture to residential incurs a fee based on land size &forfeiture of 50% of land area. This relatively harsh policy is aimed at penalizing “land speculators”. Also ensures that benefits of increased land value largely derived from extension of services funded by government rather than from improvements by owner, trickle through to communities, and to government as investor. Government policies however, do not discriminate between land speculators and real estate agencies that have a legitimate and critical role in improving the supply of urban housing.

Restrictions relating to “transfers” and “change of use” are perceived to onerous and the justification is less apparent as no linkage is observed between the transfer fees imposed and the benefits that accrue to local communities.

Recommendations

As part of the comprehensive study recommended under for LGI-3, develop a consistent set of regulations for each category of land-use;

Set-out transparent procedures for land acquisition and transfer; set-out a framework for approving change of land-use;

Circulate all such regulations and procedures in mass media and through official and non-official publications.

Ensure the “change of land-use” process is open to public participation and input.

Review in detail step-by-step procedures for leasing, mortgage and transfer of land and other related processes. Approvals should be automatically granted when clearly set-out conditions are fulfilled to eliminate discretionary decision-making and remove sources of administrative bottlenecks.

Ensure government policies distinguish between land speculators and legitimate real estate developers who have a role in expanding the supply of urban housing;

Eliminate speculation by imposing and enforcing deadlines for developing land (non-compliance to result in automatic forfeiture); and

Introduce policies that ensure gains from changes to land-use are shared between government (through fees) and local communities (through provision of social amenities and infrastructure).

LGI 4 (ii) - Restrictions on rural land use, ownership and transferability are justified Assess the potentially harmful impact of land rights restrictions in rural areas.

Assessment

A – There are a series of regulations that are for the most part justified on the basis of overall public interest and that are enforced.

B – There are a series of regulations that are for the most part justified on the basis of overall public interest but that are not enforced.

C – There are a series of regulations that are generally not justified but are not enforced.

D – There are a series of regulations that are generally not justified and are enforced.

Findings

Generally no land use plans for rural areas. The 1985-2000 land use plans

limited to growth centres in the Regions.

Land owned by Kabilos in many areas fragmented to household ownership Household ownership improvement over Kabilo ownership which has been found to be an obstacle/disincentive to development as family members are usually reluctant to invest in family property. Family property cannot be used as collateral for individual loans.

Existing regulations on land transactions where they exist are generally weakly enforced. This is mainly attributed to weak financial, human and material resources capacity and under motivated staff. The leasing process for rural land is cumbersome and often marred with inherent corruption, and information is not always disseminated.

Restrictions do not apply on the size of holdings in the rural areas. There are no restrictions on price as well. Restrictions on rent by the Rent tribunals have not yet been applied to the rural areas.

Recommendations

Aquaculture, grazing land and tracts for livestock which was not addressed in the expert investigation are vital areas that should be further investigated in terms of land use patterns. Aquaculture in particular is gaining momentum now in the Gambia’s farming system.

For the efficient running of the system, more resources are needed for capacity building, better coordination, and motivation of staff.


Framework


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LGI-5: Clarity of



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discrimination





LGI-5 Clarity of institutional mandates

Assesses the clarity of mandates of land institutions, effectiveness of the land administration system in avoiding horizontal and vertical overlaps, and the ability to share land-related information.

LGI-5 (i) - There is an appropriate separation of policy formulation, implementation, and arbitration roles

Assessment

A – In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is a clear separation in roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy.

B – In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is some separation in the roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy, but there are overlapping and conflicting responsibilities that lead to occasional problems.

C – In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is some separation in the roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy but there are overlapping and conflicting responsibilities that lead to frequent problems.

D –In situations that can entail conflicts of interest or abuse (e.g. transfers of land rights) there is no clear separation in the roles of policy formulation, implementation of policy through land management and administration and the arbitration of any disputes that may arise as a result of implementation of policy.

Findings

1989 Organizational structures for MRALTR including DLS and DPPH is still in effect.

No review of the 1989-1991 land policies and legislation introduced in 1991.

Land Administration Board dissolved and functions reserved of Board performed by DLS

DLS responsible for policy formulation, land allocation, land acquisition and compensation, and land dispute settlement. All the powers of the MOL as the lessor of State land exercised through the DLS.

Concentration of roles in the DLS has given rise to Commissions of Inquiry to investigate land issues over the years, the last of which was in 2011. The findings of the CILA remarks on this concentration of responsibility in DLS and recommends that: “the Administration of the State Lands Act should be removed from the sole responsibility of the DLS and placed under a Board or Committee to encourage transparency”.

Role of the Alkalo, Governor and Area Councils not clearly articulated.

The power conferred on the Governor to review decisions of District Tribunal undermines their independence and the rule of law.

Holistic national land policy absent. ANR policy adopted in 2009 does not address land issues. ANR sub-sector policies – agriculture, forestry, environment, fisheries and water resources are not harmonized. Overlap in policy has not been addressed. There is weak coordination on the sharing of resources and technical capacities.

Recommendations

Formulation of a comprehensive national land policy

ought to be a priority.

The regulatory framework for all land agencies requires updating and responsibilities clarified.

The public need to be sensitized on the processes involved in registration and other land transactions.

LGI-5 (ii) - The responsibilities of the ministries and agencies dealing with land do not overlap

Assesses if there is a clear delineation of institutional responsibilities with respect to the spectrum of land related issues.

Assessment

A – The mandated responsibilities exercised by the authorities dealing with land administration issues are clearly defined and non-overlapping with those of other land sector agencies.

B – The mandated responsibilities of the various authorities dealing with land administration issues are defined with a limited amount of overlap with those of other land sector agencies but there are few problems.

C – The mandated responsibilities of the various authorities dealing with land administration issues are defined but institutional overlap with those of other land sector agencies and inconsistency is a problem.

D – The mandated responsibilities of the various authorities dealing with land administration are defined poorly, if at all, and institutional overlap and inconsistency is a serious problem.

Findings

Land related responsibilities to the extent that they have been articulated, are generally clear with minor overlap in the law between Forestry and MOL on the creation of forest parks. Lands (Regions) Act enacted 1952, Forest Act was enacted in 1998 – oversight?

No land policy document except what can be inferred from legislation. The Report on the Re-organisation of the Technical Departments of the Ministry of Local Government and Lands is an internal document that is unknown outside MRALTR.

Overlap between Agriculture and Forestry. Forest Assessments 2010 associates the need for farm land as one of the sources of deforestation. Mechanism for addressing this lacking.

Overlap noted:

Between NEA and GTA with respect to the Coast project funded by the WTO. NEA responsible Project execution & GTA implementation. Confusion among beneficiaries as to the Agency in charge.

Community forests in the TDA who is responsible - Tourism or Forestry?

Sand mining on the beaches- the area falls under the jurisdiction of GTBoard yet the Geology department has jurisdiction over mining activities and NEA for environmental issues. Who is responsible for addressing attendant issues? There is no policy guide on this.

A comprehensive land policy covering the responsibilities of the two key agencies – MRALTR and Agriculture is lacking.

Recommendations

Harmonized Institutional mandate review covering all land

agencies on cross cutting issues is also needed.

A harmonized strategy to implement the ANR policy should be developed.

The ANR Working Group (which includes personnel from agriculture, forestry wildlife, environment, water resources, NEA and lands) should be reactivated to coordinate the development of the strategy.

The ANR Policy should be reviewed with a view to addressing policy gaps and harmonizing departmental policies for a more holistic and clearly articulated national policy.

LGI-5 (iii) - Administrative (vertical) overlap is avoided

Assesses level with which central, regional, and local institutions dealing with land have clearly assigned functions and responsibilities.

Assessment

A – Assignment of land-related responsibilities between the different levels of administration and government is clear and non-overlapping.

B – Division of land-related responsibilities between the different levels of administration and government is clear with minor overlaps.

C – Division of land-related responsibilities between the different levels of administration and government is characterized by large overlaps.

D – Division of land-related responsibilities between the different levels of administration and government is unclear.

Findings

Local Government Act defines the role of local authorities while the Land (Regions) Act is also clear on the powers of the district authority over region land.

Act does not however articulate any clear policy on land administration.

There is a significant overlap between the role of the Alkalo in designated State Land areas and that of the MOL in the allocation of land that has not been regulated.

Overlaps occur in relation to dispute resolution mechanisms as the District Authorities and High Court have concurrent jurisdictions. There is administrative overlap between the DPPH and the area councils in the rural areas. There are too many charges on land transactions, some payable to DPPH and others to councils.

Corruption is high. There is little public sensitization on the different functions of these offices and the laws are not clear, awareness is low.

Land transactions are limited partly because the process is cumbersome.

LGI 5 (iv) - Land information is shared with interested institutions Assesses whether land-related information, both textual and spatial, is maintained in a uniform way that is accessible at reasonable cost by all the institutions that might have an interest in land issues and need this information. Such public institutions may include land use planning agencies, local authorities, courts, disaster management agency, etc.

Assessment

A – Information related to rights in land is available to other institutions that need this information at reasonable cost and is readily accessible, largely due to the fact that land information is maintained in a uniform way.

B – Information related to rights in land is available to interested institutions and although this information is available at reasonable cost, it is not readily accessible as the information is not maintained in a uniform way.

C – Information related to rights in land is available to interested institutions but this information is not readily accessible as the information is not available at a reasonable cost.

D – Information related to rights in land is not available to interested institutions as a matter of policy or practice.

Findings Information on land is not systematically collected or maintained.

Consequently, land-use data is not easily and routinely available to the MRALTR/DPPH itself for its own use nor to other government agencies such as NAWEC, GAMTEL, SSHFC, GAMWORKS, GBOS or to private establishments. The most recent land use plan for the GBA and regional growth centres is 30 years old.

Information on land rights is scanty & not readily available to institutions.

No policy for land information sharing with interested institutions.

Challenge to NGOs/agencies to acquire land in the rural areas for long term investments in community development due to difficulty of accessing reliable information.

Even more difficult for private companies to acquire land in rural areas for enterprise development.

General information deficit. Ownership rights are fragmented between families and kabilos and, it is usually not clear who has the rights over land intended to be purchased or leased.

Recommendations All land need to be surveyed, mapped and demarcated and

owners clearly recorded. Landowners should register their land titles. The related information should be properly kept in a

comprehensive land register, efficiently managed and made available when needed.

Collection and storage of land and land-use data should be part of the mandate of a revamped planning/development sector.

To remain relevant and up-to-date, the system should allow for period updating and processing of data.

Sustainability requires that this activity be self-financing and fee paying by parties that need land data (Gamworks, SSHFC, NAWEC, real estate firms etc.) as opposed to depending on government subvention.


Framework


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LGI-5: Clarity of



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discrimination





LGI-6 Participation and equity in land policies

This indicator assesses the equity and transparency of land policy formulation and implementation.

LGI 6 (i) - Land policy is developed in a participatory manner The extent with which land policy statement draws on wide input from different sectors.

Assessment

A – A comprehensive policy exists or can be inferred by the existing legislation. Land policy decisions that affect sections of the community are based on consultation with those affected and their feedback on the resulting policy is sought and incorporated in the resulting policy.

B – A comprehensive land policy exists or can be inferred by the existing legislation. Land policy decisions that affect sections of the community are based on consultation with those affected but feedback is usually not sought or not used in making land policy decisions.

C – Policy exists or can be inferred by the existing legislation but it is incomplete (some key aspects are missing or only covers part of the country such as only urban or only rural areas) or land policy decisions that affect some sections of the community are made without consultation with those affected.

D – No clear land policy exists or can be inferred by the existing legislation and/or land policy decisions are generally taken without consultation of those affected.

Findings There is no clear overall land policy in the Gambia. There are

a number of legislation - State Lands Act, Land Regions Act, Physical Planning and Development Control Act. Most of the laws and policy instruments emanating from them are outdated including the GBA national Master Plan, Growth Centre Plans which cover only the most densely populated urban areas as at 1985. The Population has increased by approximately 70% since then.

There is no record of public participation in the legislative processes relating to the enactment of any land related laws. Most people are therefore unaware of the contents of these laws and policies.

Public consultation in the policy formulation and legislative processes in land administration is non-existent or very poor.

Recommendations

A comprehensive national land policy

The enactment/review of appropriate laws to implement such land policy.

The holding of extensive consultations in the process of formulating the legislation.

LGI 6 (ii) - Meaningful incorporation and monitoring of equity goals in land policy

Measures impacts of land policies on equity issues and monitoring.

Assessment

A – Land policies incorporate equity objectives that are regularly and meaningfully monitored and their impact on equity issues is compared to that of other policy instruments.

B - Land policies incorporate equity objectives that are regularly and meaningfully monitored but their impact on equity issues is not compared to that of other policy instruments.

C - Land policies incorporate some equity objectives but these are not regularly and meaningfully monitored.

D –Equity issues are not considered by land policies.

Findings Indigenes: Defined as belonging to a tribe indigenous to the Region or having a

certificate of domiciliation from the Minister) and others. There is no monitoring mechanism in place and no policy instruments.

Migrants: No specific policy relating to migrants as a group separate from non-Gambians exists.

Landless: Housing policy’s main focus. Policy was not located. SSHFC applies similar policy.

Women: Statutory rights of women to own and register property name undermined their personal law and prevailing traditional practices. Women’s Act, 2010 implements nation policy on women & provides:

Section 11: Every Woman, has right to acquire and own, movable and immovable property, and to administer, manage and dispose of, the property freely without restrictions.

Section 41: Right to acquire her own property and to administer it freely

Section 44: Widow has the right to an equitable share of husband’s estate

Section 45: A man & woman have the right to inherit, in equitable shares, their parents’ estate.

All according to personal law.

Findings Rules of inheritance are displaced by customary law. So long as land is not

individualized it cannot be inherited by individual members of the family.

If individualized it can be inherited according to personal law. Therefore the Women’s Act in effect only reasserts women’s right as previously recognized by existing law.

Generally in the rule areas women have access but cannot can not own land.

Section 28 of the Constitution vs 33 (5) (c) and (d) validates the application of Islamic or customary law on matters relating personal law even if discriminatory against women.

Non Gambians: Section 7(10) of the State Lands Act limits the rights of Non-Gambians to land. The section is somewhat retrospective. State land cannot be allocated to non-Gambians for residential purposes. Non-Gambians cannot be deemed lessee of more than 2,500 square meters of designated State land in any one city, town or village. There are no monitoring mechanisms, but the policy is enforced through the leasing and land transfer processes.

Above issues are not addressed in any strategic framework.

Recommendations

Proposed land policy should address women’s rights and other equity issues relating to land in a comprehensive manner.

LGI 6 (iii) - Policy implementation is costed, matched with benefits and adequately resourced

It measures efficiency and transparency by comparing expected benefits of land policies with corresponding costs and availability of adequate resources.

Assessment

A – Implementation of land policy is costed, expected benefits identified and compared to cost, and there are a sufficient budget, resources and institutional capacity for implementation.

B – The implementation of land policy is costed, though not necessarily based on a comparison of expected benefits and costs. There is an adequate budget, resources and institutional capacity.

C – The implementation of land policy is not fully costed and/or to implement the policy there are serious inadequacies in at least one area of budget, resources or institutional capacity.

D – The implementation of land policy is not costed and there is inadequate budget, resources and capacity to implement the land policy.

Findings

A holistic land policy is long overdue. Even if such policies can

be inferred from existing legislation, there is no evidence of programme budgeting. No budgets are available either at the national or regional levels for the implementation of related projects and programs. Capacity is also very weak in the main land agencies. Most have very few professionals.

There is no land policy. This dimension score was based on the premise of dimension 6(i) and (ii) above.

Recommendations

This policy should be prepared with a detailed plan of

action including specific projects and programs which are properly and efficiently costed.

LGI 6 (iv)- Regular and public reports indicating progress in policy implementation It measures progresses in policy implementation by looking at existence of publicly accessible reports.

Assessment

A – Formal land institutions report on land policy implementation in a regular, meaningful, and comprehensive way with reports being publicly accessible.

B – Formal land institutions report on land policy implementation in a regular and meaningful way but reports are not made public. C – Formal land institutions report on land policy implementation but in a way that does not allow meaningful tracking of progress across different areas or in a sporadic way. D – Formal land institutions report on policy implementation only in exceptional circumstances or not at all.

Findings

There is no policy and therefore no systematic monitoring or implementation of progress.

There are pieces of legislation and regulations but there is no organized way of reporting how they are implemented except through monitoring briefs submitted by land officials to their lines of authority, (not to the public) from sporadic field visits.

The reporting system is weak and is conducted only as a bureaucratic mechanism for the benefit of authorities, not as a public information service.

Recommendations

The national land policy should spell out a comprehensive reporting mechanism not only for bureaucratic control of processes but also for public information and engagement purposes.

land governance assessment framework in the...

Documents