Contents Introduction and Timeline Session: Incremental Tenure: Operationalising Tenure Approaches Mark Napier 16th August 2017 PARTNERSHIP FOR ACTION CONFERENCE: IMPROVING LAND GOVERNANCE AND MANAGEMENT IN AFRICA

Continuum Informal land rights Formal land rights Perceived tenure approaches Adverse possession Occupancy Leases Informal land rights Formal land rights Customary Alternatives to eviction Group tenure Registered freehold Central Tenets Land administration systems should suit the desired societal and political outcomes, rather than the other way around The call was for more inclusive, appropriate and relevant land administration systems with characteristics like affordability, flexibility, and incremental realisation (allowing easy upgrading of rights and updating of records) Central was the idea that they should be responsive to the range of situations found on the ground “A right is a claim recognized by a social system. …There should be a range of rights in a country, which are legally enforceable claims … These rights should occupy a continuum …” (Fourie, 1999: 3) In the early adoption stage the continuum offered potential to accommodate several overlapping claims that might have applied over any one parcel of land (Payne:1997) The continuum device allowed one to position this situation along a scale of types of rights which varied in formality (legal recognition) and informality (being extra-legal or sometimes customary) The various types that are mentioned on the continuum were discussed in detail, for example perceived tenure, customary land rights, occupancy rights, anti-eviction laws, group tenure (community, collective, or cooperative land ownership), women's rights, and rental, short and long-term tenure (Payne:1997) The idea of progression through different tenure situations was also discussed with the need to promote more affordable and accessible "incremental approaches to tenure change" especially in the regularisation of informal settlements (Payne, 1997:29,31) Continuum of Land Rights (UN Habitat GLTN, 2012)

Land Rights World View

Timeline 2012 – 2013 Maturity and Challenge 1999 – 2004 Emergence Monitoring & Evaluation framework proposed at WB conf (Washington) WUF III (Naples) 2012-13 Special Rapporteur report and consultations raise debate 1999 – 2004 Emergence 1999 First mention of continuum - published paper 2000 – 2003 Work on alternative LIMS’s, GIS, land admin etc. 1980 – 1998 Early Development 1984-1989 seminal studies of African land registration systems 1998 seminal paper to UN Economic Commission for Africa (Addis) 1992-1994 Land surveying & cadastre reform in newly independent Namibia and South Africa 2005 – 2011 Consolidation and Adoption 2008 Secure Land Rights for All published (full continuum revealed) April 2011 Adoption of UN Resolution 23/17 2006 Establish-ment of GLTN 2008 - 2010 Bergen Bamako New York 2011 Publication of Handling Land 2010 Framework and Guidelines on Land Policy AUC-ECA-AfDB Discussions and debates around property and rights in the Commission on Legal Empowerment of the Poor, 2005-2008 some saw the continuum diagram (with its arrow towards formality) as bias towards registered titled freehold; others used the diagram to describe the current emphasis of conventional practice in titling, whether or not that was preferable in a specific situation Emergence of debate little debate is evident in the early years around the definition of the problem/ challenge the solution to the challenge has however, become more contentious over time Handling Land, 2012, acknowledged that rights do not lie on a single line Payne and Durand-Lasserve (2012) critique the continuum for muddling tenure status and property rights and for seeming to promote a view that registered freehold is most secure Special Rapporteur on Adequate Housing’s report (UN-Habitat 2012) echoed the position, and questioned apparent progression towards freehold tenure At the core of the debate is what trajectory out of urban (and rural) poverty is most likely to work

Matrix Positioning depends on Less tenure security More tenure security De facto (unrecognised) New informal settlement Positioning depends on country’s legal system, common law, customary tenure, adverse possession, eviction laws, land values etc. Administratively recognised Settlement recognised for upgrade Upgraded settlement with individual land rights De jure (legally recognised)

From continuum to incremental tenure security Understand local tenure systems Understand power relations Secure households against eviction Incrementally build secure tenure Build appropriate administration & systems to support diversity Access to (sustainable) livelihoods & democracy Administrative recognition >> legal recognition

Incremental tenure approach Less security More security Within the current system Long term To the current system More Formal Legal More Informal Illegal In the meantime Adaptation Recognition Incremental Source: Lauren Royston, and Urban LandMark

Tenure Security Facility Tenure Security Facility Southern Africa project, supported by Cities Alliance and DFID in 2012 and 2013 provided technical assistance and advisory services on incrementally securing tenure in slum upgrading in the region. The project investigated appropriate mechanisms to incrementally increase tenure security for households in Angola with Development Workshop, in Maputo, Mozambique with ANAMM, the national association of municipalities, and with the Cities Alliance Country Programme there In Lilongwe, Malawi with Centre for Community Organisation and Development and in three centres in South Africa

mnapier@csir.co.za