By Jonathan Pan and Gabriel Grau
In Afghanistan, land suitable for farming is limited and the situation is further complicated with a short life expectancy and succeeding generations of men inheriting smaller parcels of land. “Intensifying things even more, the men who are in most direct competition with one another also tend to have land plots that share borders—borders which, in the absence of any good system of surveying and land law, are the cause of many violent negotiations.” Therefore, it is no wonder that Afghans in Southern Afghanistan often choose to resolve land disputes through the Taliban shadow government’s sharia court due to its effectiveness, timeliness, transparency, and often time by the mere fact that other solutions do not exist.
Three decades of war have caused successive regimes to issue new land deeds which lead to unclear ownership and displacement of people from their land. This problem is compounded by an unorganized and unrecognized legal registration system. The competency and dominance of the United States military has caused it to expand into traditionally civilian tasks. To properly handle land disputes, the warfighter must be well versed on the basics of land management and legal processes in Afghanistan.
Land Types
Land in Afghanistan is classified under two types: agricultural land and municipal land. Agricultural land, which is mostly rural, is under the administrative jurisdiction of the Ministry of Agriculture, Irrigation, and Livestock (MAIL). This land includes agricultural, grazing, forested, irrigated, non-irrigated and settled land in rural areas, as well as agriculturally classified land in municipalities. An agricultural property office, called an Imlak, is supposed to be located in each provincial district or woluswali. Imlak offices have maps of the area under their jurisdiction. Some Imlaks have maps from the cadastre survey done several decades ago. Imlaks also have other maps and sketches at the parcel level and information on parcel ownership. It is also important to note that MAIL is in the process of standing up the Afghanistan Land Agency (ALA) which will administer all government-owned agricultural land. The purpose of ALA is to lease out government owned land. ALA is indeed created but not yet functioning. Harakat, an Afghan non-governmental organization (NGO), is working on the internal design and management of the ALA. Harakat implements all of the United Kingdom's assistance to Afghanistan
Municipal land, which is mostly urban, is under the administrative jurisdiction of a municipality. A municipal property office, called a Melkiat, is located in each municipal district (for example there are 22 municipal districts in the municipality of Kabul). Municipal districts are under the administrative jurisdiction of the Department of Melkiat-ha of a municipal government, such as Kabul City. Like Imlaks, Melkiat-has have maps, some parcel sketches, information on ownership of parcels, and information on buildings on parcels.
Legal Processes
The Supreme Court in Kabul administers all national courts. There is an Appeals Court in each Provincial capital city. Below that, there is a Primary Court in each municipal and provincial district. Primary and Appeals courts are responsible for drafting up and issuing land titles throughout the country. Each Appeals Court has a Makhzan, which is a storage area usually within the same building as the Appeals Court, for the long-term storage for legal land documents prepared by the courts within a Province. Mahkzan administration is handled by the Appeals Court. Mahkzans are of central importance for verifying ownership and for recording deed transfers but are only archives. No authority or power lies within them. Mahkzans also regularly house property documents from the Primary courts. United States Agency for International Development (USAID) digitalized 80% of all titles in the country through upgrading Mahkzans in a program called Land Titling and Economic Restructuring in Afghanistan (LTERA). The Afghanistan Land Consulting Agency (ALCO), a non-governmental organization spin-off from LTERA, was recently hired by the United Kingdom’s Department for International Development to complete the remaining 20%.
National Cadastre
The Afghanistan Geodesy and Cartography Head Office (AGCHO) is the only officially recognized repository for Afghanistan maps and land surveys. Unfortunately, AGCHO's information is 30 years old and covers only about 30% of the country. Of the 6 divisions within the AGCHO (Meta Data and Customer Service, Geodetic Service, Cadastral Service, Large Scale Base Mapping, Topographic Mapping, and Human Resources and Finance), the one which affects the warfighter the most is the Cadastral Services Division.
The division of cadastral service is responsible for re-establishing a system of cadastre in Afghanistan in support of land titling and land management based on a regime of law and order. Currently, deeds do not include any map sketches, parcel identification or information based on locality. One sample can show the vagueness of land deeds (direct translation from Pashto):
In the north side of Arghandab District by the Names of Anjaran Kariz and Mohammad Omer Kariz there are a thousand jeribs of agriculture land under cultivation. In the east side, we Haji SOJ, son of Haji SAK are attached with SNK, son of Haji SAK. The Char Kolba village and some aqueducts are located in the west side. Ghata Monara and the aqueduct Bolan are located in the north side. The big mountain of Khakrez and attached highway located in the south side is in our control.
These are typical of land deeds in Kandahar Province. It is no wonder there are land disputes when numerous land owners dispute over land without grids or maps. The warfighter must take extra precaution in dealing with land issues.
The Dominance of Customary Deeds
A preliminary examination of legal property deeds (prepared in District 2 Primary Court in Kabul) indicates that only eight legal property sale deeds were prepared by the court in the previous 11 months. This is a very low number especially for being in Kabul. If these results were extended nationally, this means that most property sales are not registered with the courts. Further analysis indicates that the legal application of property deeds has all but ceased. The main cause of this over the past 11 years was Taliban mismanagement of the property system. Today, the main cause is a mix of lack of understanding of how the system works, ease of using the traditional system, and high fees that were charged by the government to register sales (this has recently changed with LTERA support).
The custom in rural areas is to document property sales through "customary" rather than legal deeds. This practice supplants legal deeds in urban areas as well. In villages, the buyer and seller usually conduct their property sale transactions in private. Afterward, they ask their malik (chief of the village or community), mullah (a village-level religious leader and preacher) or another important person in a village to write a statement verifying that the transaction occurred. All three parties sign this document. Generally, the malik or other important person does not charge a fee for this service but often a buyer and seller give them small gifts as tokens of gratitude. In Afghanistan, this document is referred to as a "customary deed." A customary deed contains a description of the parcel location, the names of adjoining owners on the north, south, east and west boundaries of the parcel, the size of the parcel, the sale value and the buyer's and seller's identity. The legal system does not currently recognize a customary deed as a sufficient evidence of a property ownership transfer, but it does have strong local value for documenting that a transaction has occurred, and that the transaction is acceptable locally. USAID and the World Bank are in close communication with the Supreme Court in an attempt to legalize these documents. Recently, the Supreme Court expressed interest in doing so.
Thus far, it seems that most Provincial Reconstruction Teams and Task Forces have similar issues and all of them revolve around land-use and land-ownership conflicts within and between communities. As such, USAID is rolling out a new project called Land Reform in Afghanistan (LARA) of which one of the major components will be to respond to the needs of the field. LARA’s activity design states that
"LARA will provide training on land use and land ownership conflict resolution to provincial and district GIRoA officials, PRT personnel, RC personnel, members of the United States Armed Forces, and community elders on an as-needed basis. LARA will also provide direct assistance with conflict resolution to villages and rural communities upon request by USG development and military personnel in the field. These services will reduce opportunities for insurgent infiltration and improve the perception of the GIRoA in areas where its presence is limited."
LARA is still in procurement and award is expected late May which means a full office in the city of Lashkar Gah of Helmand Province won't be realized until August 2010. However, conflict resolution teams should be able to deploy as needed soon after award.
Realities of the South
After almost a year of operating and traveling in Kandahar Province, I have dealt with various land issues but I’ve never seen agricultural or municipal property offices, cadastres, or any court systems. The local population has not mentioned any of these entities as well. For land issues involving the International Security Assistance Force (ISAF), the most common form of transaction is an Afghan power-broker mediated land dispute. For instance, an Afghan Border Police commander in Kandahar conveniently knows all the proper land owners for ISAF related projects.
For land issues between Afghans, they seem to settle it through violence, the Taliban Shadow court system, and as a last option, the district government. A District Governor in Kandahar is accused of charging a fee for mediating land disputes that eclipses even the Taliban shadow court system. It is time to add “economical” to the list of benefits of the sharia court.