This study examines access to, use of and management of land and its links with the root causes of conflict in the two Kivu provinces and Ituri in the Democratic Republic of Congo (DRC).
The study’s aim is to identify key gaps in the international community’s understanding of land issues in Eastern DRC, as well as gaps in the kinds of interventions that are being conducted at the current time (2009-2010). In the DRC, as in other countries, customary, informal and statutory land-tenure systems “overlap” geographically, in the sense that a certain parcel of land might be claimed by different actors under different systems. Individuals and sometimes communities may claim land through a variety of systems simultaneously, resulting in confusion and dispute.
Eastern DRC encompasses a vast area and huge diversity in terms of geography, forms of local governance, ethnic composition, and other aspects. However, while acknowledging this diversity, it is useful to identify two sets of dichotomies, or “opposites”, which are of great significance across much of Eastern DRC: the dual system of land access (customary and statutory) and the conceptual contrast between ethnic groups which are “local” or “indigenous” to a particular area, and those which are seen as “migrants” or “foreigners”.
The weakness of the statutory land law, as well as widespread corruption, has led to massive alienation of land held under custom. Customary leaders, who traditionally held the land “in the name of their community”, have essentially privatised community properties, pocketing the proceeds from alienated land which has been sold to wealthy and powerful individuals or foreign and Congolese companies. In the DRC, political representation at the local level is linked directly to “ethnic territories”.
There is therefore a structural link between claims to land ownership by ethnic communities, and claims to political autonomy and power. Communities that have lacked local representation have long made claims to land ownership in order to have their own chiefs, and these claims have often been resisted by neighbouring communities.
The result in many areas, particularly the east, has been violence. Land is essential to most rural livelihoods, but it is also bound up very strongly with issues of “identity and power”.
While land scarcity and alienation of customary land has led to land disputes at the micro-level, the tensions around such “local” and “intra-community” conflicts (or conflicts between “ethnic citizens” and their chiefs who make decisions over community land) have generally been transferred into the “inter-community” level. This has been achieved through discourses utilising the concepts of “indigenous” and “immigrant” groups. For some communities, notably Hutu and Tutsi, the issue of immigrant status is linked to an uncertain or contested right to citizenship.
This dynamic has led to widespread violence and the return of internally displaced persons (IDPs) and refugees – particularly those of Tutsi ethnicity – to parts of North Kivu in recent months and years risks renewed violence unless it is handled very carefully. In addition, control over land is a “sustaining factor” in conflict. Those individuals and cliques that have benefitted from changes in control over land during conflict do not necessarily require a continuation of war to maintain de facto control over their spoils. Rather, they need to avoid having wartime transactions and population movements scrutinised and potentially undone, for example through the establishment of land commissions, mediation processes, the return of IDPs and refugees, or other state or non-state interventions.
In order to avoid the loss of wartime gains, such actors will likely attempt to gain influence with politicians or maintain a certain level of “instability” in order to prevent international and local NGOs and state services from gaining a foothold in areas under their control, and to prevent the return of those claiming land ownership. A realistic assessment of the current situation in many eastern parts of the DRC, is that while some measures of stability have periodically been introduced since 2003, there is still chronic violence, outbursts of acute violence and a risk of more systematic and far-reaching conflict.
The DRC is characterised by a very weak state presence outside of the main urban centres. This creates certain problems for actors aiming to break the links between land disputes and violence in Eastern DRC. Most of the interventions usually implemented in post-conflict situations depend upon the existence of a responsible, capable and non-partisan state. In the absence of a functioning or impartial state, the usual recourse is to non-state institutions which enjoy local legitimacy and influence.
Customary authorities usually top the list of such actors, as well as religious institutions in some countries. Here, again, there are problems because the role of customary authorities is legally ambiguous, and many of them are accused of corruption and generally pursuing their own political and economic interests rather than those of the community. Given the weakness of both customary and state structures, many organisations have trained local people in mediation skills and some have established local mediation centres. Mediation tends to be effective in addressing local-level disputes between parties of similar social, economic and political status. Where power disparities are more acute, and particularly where armed groups are involved, the effectiveness of this approach is very limited.
It is important that all actors involved in current mediation efforts, in particular the Comités Locaux Permanents de Conciliation (Permanent Local Conciliation Committees, or CLPCs) which are being established as part of the Government’s stabilisation plan STAREC, consider land issues to be complex and multi-dimensional, encompassing social, political, economic and cultural aspects, as well as the legal and “technical” aspects, which are often emphasised by professionals working in the land-tenure field.
Simply supporting the legal system in its current form will only provide legitimacy to those who use the land registration system to dispossess customary claimants. Legaltechnical activities should only be promoted as part of a broader package of interventions which together seek to transform the political economy of land tenure in Eastern DRC. Specifically, there are concerns that the CLPCs will be unable to manage the delicate sociopolitical balancing act necessary to provide a fair hearing to the various disputants involved in land conflicts.
There is a risk that due to pressure (either from elements of the local community, politico-military organisations, or government), the CLPCs will put certain political and/or economic interests ahead of the important issue of justice. As a result, the return of IDPs and genuine returnees could be blocked in some areas, or dubious claims by IDPs and returnees could be supported in other places, leading to the unjust eviction of those currently using the land. It is important that the CLPCs are not only fair and balanced in their decision-making, but are also perceived to be fair and balanced.
The extent to which the CLPCs are perceived to be fair and effective will depend on a number of factors, including the ways in which elements of the national and provincial government attempt to influence them, and the ways in which international organisations are involved in various aspects of their overall design and day-to-day functioning. If the decisions handed down by the CLPCs are not locally perceived as fair, it is highly unlikely that they can be enforced. The state security apparatus has neither the experience, capacity or political will to defend the physical security of those involved.
The land question in Eastern DRC is not a legal issue, nor is it purely a political issue. More profoundly, it is part of a wider agrarian crisis with cultural, social and economic aspects. The agrarian crisis stems from a combination of structural constraints on the “extensification” of livelihood systems as well as the intensification of smallholder systems, the massive levels of inequality in the size of landholdings in certain areas and the more generalised crisis in terms of trade for agricultural produce that is being experienced all over Africa linked to various processes of globalisation. This agrarian crisis is exacerbated, of course, by the lack of alternative livelihoods and the obstacles to material “development” and social “cooperation” due to the threat or reality of armed conflict.
Any sustainable resolution of land-tenure conflicts in Eastern DRC must be comprehensive enough to address a wide variety of economic, environmental, social, political and other issues. Nevertheless, an incremental approach is probably the only means open to individual NGOs and other non-state organisations. This can produce some results in the long term, if it is: a) sustained and expanded over time; and b) well-coordinated with other activities by the state, NGOs, the Mission de l’Organisation des Nations Unies pour la Stabilisation en RD Congo (UN Organisation Stabilisation Mission in the Democratic Republic of the Congo, or MONUSCO), and other key actors.
Therefore, it is important to increase levels of dialogue, informationsharing, joint training, etc. between such organisations on land issues and related interventions. Such interventions can only work with the participation of state and customary leaders. Yet neither can be expected to be the sole “legitimising authority” behind the intervention, which need to involve the significant participation of a representative range of local citizens. Due to the risks that interventions will be “captured” by powerful forces of one kind or another, thereby losing legitimacy and neutrality, international actors can usefully play an active monitoring and guidance role, but should avoid shouldering responsibility for decisions.
Local actors must come to completely “own” the process. This is difficult, as evidenced by the Ituri Land Commission, which is still, some three years after its inception, heavily dependent upon its foreign donors.
The ongoing influx of “returnees” into North Kivu, the continuing influence of armed groups over this process, and the presence of a number of armed movements opposed to the land claims of “returnees”, represent a clear risk of large-scale conflict. In order to prevent such a potentially cataclysmic outcome, independent and critical research into the situation in North Kivu, particularly Masisi, should be conducted with the ultimate aim of identifying a combination of diplomatic, informal, developmental and humanitarian interventions that could improve the situation.
The report makes the following recommendations:
- There is an urgent need to initiate an independent, large-scale and multi-stakeholder research project in order to shed light on changes to control over land in North Kivu, specifically areas that are currently seeing large numbers of returnees. The research should examine the “political economy” of land in these areas and attempt to fully document and understand mediation activities in a sample of villages. The research should examine local perceptions of the process and the outcome, and note the ways in which the emerging socio-political dynamics are affecting the risks of conflict. Similar research should be conducted in Ituri and South Kivu, but at the present time, it is in North Kivu where the risks of large-scale violence over land are greatest and most urgent.
- In order to be successful, any mediation and reconciliation processes must not only be “in tune” with local socio-political realities, but must also be part of a much broader attempt to seek consensus over key issues such as the return of IDPs and refugees to politically-sensitive or highly-contested areas. Any intervention in the land sector, such as that being spearheaded by the UN in Eastern DRC, must be prepared for a long-term engagement with the issues at the diplomatic as well as technical level, and must be based upon a thorough understanding of the complex local and regional histories of violence over land.
- In the short to medium term, the various actors in the land-tenure domain should continue to document and better understand ongoing interventions addressing land-tenure issues implemented by local and international actors in the DRC, in order to identify ways in which separate initiatives could be combined or adapted. This research should also explore ways in which innovative tools which have been used effectively in other “post-conflict” countries, such as participatory delimitation of community lands, could be piloted in Eastern DRC. A combination of approaches, such as roundtables, conferences, commissioned studies and external evaluations, should be used. The resulting report(s) should be widely shared and used to advocate for the more widespread adoption of the most successful approaches.
- In the medium to long term, actors in the land- tenure domain should identify credible and legitimate district- and provincial-level state or customary institutions which have a mandate to address land issues. International and national actors should engage in a targeted and sustained process of dialogue in order to convince such organisations to adopt some of the approaches discussed in this report. In particular, emphasis should be placed on seeing land tenure not purely as a legal concern, but as a multi-dimensional set of issues embedded within a generalised agrarian crisis. This crisis is the result of many interrelated factors, including highly unequal access to land, in a context where many smallholder farmers lack adequate land to feed their families; a general lack of purchasing power to acquire sophisticated agricultural equipment, fertilisers and other inputs which could improve productivity; a deteriorating ecological base, due to a decline in traditional conservation methods such as fallow areas; an inadequate and poorly maintained roads and communications network; and a corrupt and largely dysfunctional rural governance system.
- Over time, it will be necessary to elaborate provincial land policies, a national land policy and to reform the land law.