Challenges in Participatory Land Governance Decentralization and the Role of Local Governments in Decisions on Land-based Investments By Alda Salomao (Centro terra Viva) – Mozambique) and Celine La Vina (World Resources Institute - USA)

Context Local authorities or governments, (district and municipal governments), and community authorities, seen as important actors in the fight against poverty and in the promotion of sustainable and participatory rural development. Many strategic programs for reduction of absolute poverty adopted in the country, including the national strategy for rural development approved in 2007, highlight the importance of decentralization, through which a more dynamic and proactive role is reserved to local government. Decentralization Strategy adopted in districts, 53 municipalities, around 5000 communities

Research Objectives Review of the decentralization process in Mozambique, which analyses the legal, political and institutional framework for decentralized natural resources management, especially land management, to identify the actors involved, the roles and powers allocated to them, and existing accountability mechanisms. Assesses the interactions among the different actors (districts, municipalities and community), to establish the extent to which decentralization is occurring and participatory land management is effectively taking place through that process. WORK IN PROGRESS…..

Analytical Framework The framework suggested by Ribot and Agrawal (1999) - analysis of actors, powers and accountability - is applied to assess the effectiveness and impact of the administrative decentralization experience in Mozambique Case study: the process of allocation of land use rights over 7000ha to the Liquefied Natural Gas (LNG) project in the northern province of Cabo Delgado, District of Palma (Afungi Peninsula, occupied by 12 communities) jointly proposed by the American company Anadarko and the Italian company ENI (hereinafter the Palma Project).

Constitutional Provisions on Decentralization The main principles for democratic and participatory land governance have been enshrined in the constitutional text. Public Administration shall be structured on the basis of the principle of decentralization and de-concentration, for modernization and efficiency of its services, without prejudice to the unified action and the directive powers of Government. (CRM, Article 250) The law shall establish institutional mechanisms for State liaison with local communities, certain functions that are within the powers of the State may be delegated to local communities. (CRM, Article 263.5)

Constitutional Provisions on Decentralization The 2004 Constitution distinguishes different land categories based on the entities that have the mandate to govern them. Thus, there are lands that fall under the state public domain, the municipality public domain and community public domain. (Article 98) Within state public domain, public administration is organized based on three main government levels, namely central (President of the Republic, Council of Ministers and Ministries), provincial (Provincial Governor and Provincial Departments), and district (District Administrator and District Services). The land law distributes management powers among these levels.

Administrative Decentralization & Land Management Actors and Powers (Article 22 of the Land Law) The Provincial Governors have the competence to: Allocate land use rights for areas that do not exceed hectares; Authorize special licenses in partial protection zones; Issue opinions regarding applications for land use rights in areas that fall within the competence of the Minister of Lands. The Minister of Lands has the competence to: Allocate land use rights for areas that are between and hectares; Authorize special licenses in total protection zones; Issue opinions regarding applications for land use rights in areas exceeding his competence for approval. The Council of Ministers has the competence to: Allocate land use rights in areas which exceed the competence of the Minister of Lands provided they are covered by a land use plan or may be integrated in a land use map; Create, modify or extinguish total or partial protection zones; Decide on the use of the territorial waters and the continental shelf.

Administrative Decentralization & Land Management Actors and Powers (Article 22 of the Land Law) Article 23 of the Land Law, determines that District Administrators have the competence to authorize applications for land use rights in areas that are covered by urbanization plans, and provided they have public cadaster services. The Land Law Regulation gives District Administrators the responsibility to conduct community consultations and to issue an opinion over applications for land rights for investments.

Administrative Decentralization & Community Participation in the Context of Large Scale Land Based Investments Theory Local government must consult and coordinate with community authorities in decisions for promotion of peace and social harmony, land use, environmental management, health, education and culture. Legal regime of Community Public Domain not yet approved by parliament, but legal pluralism legitimates community management of land and other natural resources existing in community areas. Local communities are expected to give their opinion on applications for land use rights to confirm whether the land requested is free from occupants and have the right to negotiate partnerships with investors.

Practice (7.000ha of land for the LNG Project in Palma) Decision to direct the project to the Afungi Peninsula and to allocate 7000ha of occupied land without basic local preparation: district development plan, land use plan (including delimitation of community lands), urbanization plan, cadastre services, qualified personnel, material resources (vehicles, maps, etc) and without the active and informed participation of local authorities, both government and community authorities Decision to allocate land to the LNG project taken without consideration nor respect to pre-existing community rights, under the argument, by local government, that they have to promote poverty reduction and to obey high level orders Communities not consulted before DUAT emission, consultation occurred only in the process of design of the resettlement plan, forced by NGOs and with threats from local government and the police officers No mechanisms included to ensure women preparation and integration in decision- making bodies and processes, local consultative councils with no female representation, community committees created by the government without female representation (14 men 1 women in Quitupo, no female members in Maganja and Senga)

Decentralization, Land Management and Gender Decentralization and land governance must ensure gender-sensitive public service delivery and take into account the unique perspectives that women can contribute to local planning and development, including for land use and management. Mozambican context  The Constitution sets the standards for framing gender within the decentralization and land governance processes.  Article 36 calls for gender equality before the law in all spheres of political, economic, social and cultural life.  Article 122 affirms women’s special and growing role in society and the State’s duty to promote, support and value their development in all spheres.

Decentralization, Land Management and Gender No explicit gender provisions in the legislative instruments on decentralization, except a regulation stipulating a 30% quota for women in local consultative councils. The ruling party, FRELIMO, has formally adopted gender quotas since For elective positions, at least 30% women candidates (raised to 40%) in its electoral lists for national, provincial and local elections, with a commitment to balance the distribution of men and women in its lists.  In 2014, of the 250 members of parliament, 100 were women, or 40%, with president a woman. Locally, 35.6% of members of provincial assemblies were women.

Decentralization, Land Management and Gender In appointive positions, FRELIMO has defined a quota of 40 percent women in executive bodies and 30 percent in local government entities.  In the executive, 28.6 percent of ministers were women, and 20 percent deputy ministers. Locally, at the provincial level, women represented 36 percent of provincial governors and 45 percent of permanent provincial secretaries.  At the district level, women represented 20 percent of district administrators in 128 districts, 15 percent of the heads of administrative posts and 28 percent of district advisory council members

Conclusion Incomplete decentralization of land management powers and resources from central to district levels: no clear and adequate powers and resources transferred, exclusive upward accountability Lack of essential instruments to support decision-making over land at the district level: development plans, land use plans, urbanization plans, cadastre services, recognition of community rights Weak gender mainstreaming translated into lack of women’s participation and disregard to women’s views and interests. Lack of political and administrative “autonomy” and problematic moral and ethical base preventing the use of opportunities offered by the legal framework and by the democratic process