3.1. Women’s Land Rights in Burundi
The Dutch NGO ZOA is working on land tenure registration and agricultural development in Burundi. The context is marked by high numbers of former refugees returning to the area after years in exile, often in neighboring Tanzania. Land is scarce due to high population growth and the return of people contributes to land-related conflicts. These land conflicts are highly complex and range from intra-family disputes on heritage rights to disputes between repatriates and residents. Customary and state authorities are involved in conflict resolution on the local level but in many instances, these actors are overburdened with the number as well as the complexity of the cases, particularly because the property rights are often not formally registered and conflicts between formal and customary rights exist. The formalized land registration in Burundi is based on the land law (code foncier) of 2011, which introduced land certificates as alternatives to titles for the registration of customary land rights and decentralized the land administration [16
]. In this context, ZOA decided to support the establishment of local land offices and the registration of land on the basis of resolving conflicts via on-the-spot as well as long-term mediation facilitated by local partner MiParec. The longer-term objective was to support farmers with agricultural activities after they secured their land rights. The project was initially funded by the Netherlands’ embassy.
At the beginning of this work, it was realized that the chosen activities could have potential negative consequences for the land rights of women. The main reason for this was that women’s land rights in Burundi are generally so-called secondary rights. This means that land rights of women derive via the rights of male relatives and constitute use rights rather than ownership rights. The customary context in Burundi is dominant in the day-to-day management of land and most women have no resources with which to acquire land of their own. In the early phase of the project, questions were raised in the Dutch Parliament with regard to the possible consequences of the work on women’s land rights. The result of this interrogation was that the effects, at that point in time, were unknown but that there was a possibility the formalization of customary rights would lead to a weakening of women’s rights because these would not be formally registered due to their secondary (dependent) nature. It was clear that this posed a danger to the long-term sustainability of the project, not least because it also increased the likelihood of intra-family disputes. The International Development Law Organization (IDLO), one of the project partners, was responsible for in-depth impact studies of the project with a specific focus on conflicts and gender relationships. IDLO proposed a pilot project with particular attention for women’s land rights, with specific activities that would bring men and women together to discuss perceptions and fears around land registration in order to increase the number of registered land rights of women. There were also discussions around stronger support for the capacities of the formal justice sector to resolve land issues and options to advocate for stronger regulation from the political level to improve the land rights situation of women. A major challenge in the Burundian context is that inheritance law is not formalized, which means that inheritance issues are regulated by customary practices [17
]. The required changes in law have been pending for a long time and it appears that the issue is not high on the political agenda. Some decision makers view a formal inheritance law to be a potential fuel for further land related conflict. Table 1
below summarizes the actor constellation and options for ZOA in this situation.
ZOA eventually decided to follow an approach that facilitates intra-community discussions on women’s land rights and brings men and women together to allow for open discussion around the issue of land registration. The approach provides detailed information on the process and results of land registration and its implications for women’s and men’s land rights. This concept was applied in a pilot area, with significant results relating to the increase in registered female land rights. Through comprehensive engagement within communities, fears and prejudices around registering women’s rights on the certificates could be alleviated in many cases. Men proved much less reluctant to register their spouses along with themselves once the concrete implications of this decision had been sufficiently addressed and women had been given the opportunity to voice their own concerns and needs regarding the protection of rights. While these are clearly positive results, there are also limitations to the chosen approach. The strategy is time-consuming and relies on the voluntary cooperation of various actors. The lack of legal requirements or political backing for this specific work is a threat to the sustainability of this approach and the achievements.
One central question here is why this specific approach was chosen, while a number of different, more- but also less far-reaching options are available. It could also be asked why ZOA engaged with a complex issue such as women’s land rights in the first place. Regarding this latter question, the answer relates to the institutional framework as much as to the actors involved. The table above highlights that a vocal, advocacy-oriented approach could have endangered relationships with third parties. At the same time, ignoring the issue would almost certainly have threatened the relationship with the donor. Furthermore, ZOA’s own gender policy commits the organization to gender equality and ZOA has signed the Dutch NAP 1325, joining a consortium of organizations working towards the objectives of UN Security Council Resolution 1325 on Women, Peace, and Security. In addition, the scrutiny via the Dutch parliament and the engagement of IDLO, offering concrete options to improve the gender related aspects of the work increased the need to pro-actively engage with the issue. Thus, internal and external norms as well as external pressure and incentives are all factors in this decision.
The concrete steps taken by ZOA present an interesting point of interrogation. There have been questions from peers as to why the project was not abandoned or completely re-designed given its possible negative consequences. There have also been challenges regarding the limited scope of the gender activities, asking why not a more vocal, policy-oriented approach was chosen. The first question can be answered by looking at the identity of ZOA as an organization. The core mandate of ZOA is to support people affected by crises, founded on a Christian identity that first and foremost obliges the organization to serve the most vulnerable. This is also strongly related to the first of the organization’s core corporate values: Loyalty (Faithfulness). To management staff this means any initial commitment to a community is seen as highly binding. This self-perception of being an organization that provides support in the most dire and therefore often most complex contexts, with vulnerable and hard-to-reach groups as the main beneficiaries makes it extremely problematic to abandon a project. This issue has frequently been discussed internally and is seen by many of the staff as a core aspect of what defines the organization. At the same time, this also provides part of the answer to the second question: why not a more vocal, advocacy-oriented gender rights approach? In this regard, the anticipated reactions of various other actors come into play. Local customary leaders as well as political actors on all levels were expected to react negatively to a more outspoken approach to land rights for women with possible consequences for the non-land rights work of the organization in Burundi. Furthermore, a more vocal approach might also lead to stronger polarization of the positions on the ground. While in the end, this could lead to a transformation of the status-quo, it could lead to conflicts and maybe even violence in the short run. From a do-no-harm perspective as well as with a view on the objectives of the project (reduce land conflicts, agricultural support, livelihoods) this was not regarded to be an acceptable risk. Furthermore, limited experience with this specific type of work within the organization also limited the range of what was viewed to be possible. Thus, while internal and external norms required an engagement with the issue of gender relations in the context of land rights and while the organizational identity strongly supported a continuation of the project, the expected reactions of third parties limited the chosen approach to localized and rather ‘soft’ measures to improve the level of registered women’s land rights. Recent impact evaluations have indeed shown an increase in the percentage of registered rights, but also indicated that there is a further need for improvements, warranting further adaptions of the approach. This might also lead to a re-evaluation of what is possible because further analysis could show that the previous activities have increased the scope of what can be done (and in that sense they might have changed the institutional context).
3.2. Land Governance in the DRC
In the eastern Democratic Republic of Congo (DRC), ZOA works on a project that addresses land rights issues as a root cause of conflict, poverty and instability4
. The project is financed by the Netherland’s Ministry of Foreign Affairs. One of the central challenges around land rights in the specific area is conflict between local communities and large concessionaires. Many smallholder famers have inherited their land rights without ever receiving any formal document to prove their ownership or use rights. In some cases, this land is part of a concession given to an agricultural or other enterprise by the national government. Other farmers have started farming on the land of existing concessions out of necessity. In many cases, they have entered sharecropping arrangements with the concession holders. In these contexts of semi-formal or informal land use, conflicts are widespread. Common types of conflicts revolve around forced displacement and changes in land-use conditions from the side of concession holders. Farmers might be forcibly removed from their land because the concessionaire fears long-term claims on the land or because the land is eroding due to the farming activities. In other cases, farmers might be unwilling or unable to agree to changes in the sharecropping agreements. Identity issues often exacerbate these conflicts, with concessionaires and land users belonging to different ethnic groups. The principle of large-scale concessions is a remainder from colonial times and concentrates large tracts of land in the hands of few.
Land degradation through intensive use makes some landowners reluctant to lease out their land, which in turn enhances tensions around land access. Forced removals of small farmers by concessionaires have happened even in cases in which the concessionaires themselves did not adhere to the standards required for them to keep possession of the land. The Congolese land law states that land has to be put to use within a period of 18 months by the concession holder. In many cases, only part of the concessions are actually being used, making the concession holder’s own legal claim fragile at best. Nevertheless, the often well-connected concessionaires rarely face the risk of losing their land. This is also because the local land administration authorities are challenged to keep up with their tasks, facing severe funding constraints and staff shortages. Adding to the already difficult land situation are conflicts relating to tensions between pastoralists and farmers, inter-village disputes regarding borders of agricultural land and intra-family disputes, e.g., because of inheritance questions. Women face particularly strong challenges in many cases because their land rights often depend on their male relatives and they lack inheritance rights as well as decision-making powers related to land and other assets.
ZOA and its partners developed a multi-pronged approach to address these challenges. The approach focuses on different levels of the social and political sphere. It takes into account existing formal and informal governance systems and aims to facilitate dialogue between central stakeholders. The approach requires ZOA and its partners to engage with existing civil society actors while establishing links between the formal and the informal levels of governance. These locally oriented efforts link to higher governance levels. Thus, locally improved governance and inclusive conflict resolution are envisaged to inform stakeholder engagement on higher levels (e.g., territory, province, national). On the local level, four central pillars provide the foundation of the work:
Community-Based Sociotherapy (CBS): Empowering individuals to engage in positive social change [18
]. Implemented by a local partner.
Cadres de Dialogue et Mediation (CDM): Engaging in conflict mediation and in negotiation with large landholders so that farmers with no or limited access can rent land on the medium or long term and are protected through clear lease agreements. Implemented by local partner APC with long-term experience in peacebuilding and conflict resolution.
Civil Society Engagement: Mobilization and empowerment of existing civil society structures based on the CIVICUS approach [19
], allowing concerted action on land rights.
Improved Governance: cooperation with/support to formal and informal authorities to improve local governance by increasing transparency and service delivery.
Each of these pillars presents an individual focal point of the work while at the same time opportunities to create synergies are systematically pursued. Particularly, linking the three community-based components to formal governance structures and customary authorities is required. The experiences from working on the local level need to be fed into frameworks on higher levels of government to create sustainability. Regular information exchange between relevant stakeholders is viewed as a minimum requirement for an inclusive and sustainable approach. The necessary policy and administrative changes identified through the different activities and by the different actors (through respectively CBS, CDMs, and broad civil society engagement) would be explained and advocated to higher levels of government and actors engaged in efforts for regional stabilization. In collaboration with third actors (NGOs, CSOs, administration) and through active participation in an existing regional land tenure-working group, necessary improvements in administrative and legal framework are lobbied for on the provincial and national level.
3.3. Rapid Appraisal of the Four Pillars
The CBS process relies on 15-week cycles during which small groups of volunteers come together on a weekly basis and are guided through the six phases of sociotherapy: 1. Safety, 2. Trust, 3. Care, 4. Respect, 5. New rules, 6. Memory of emotions. The assumption relating sociotherapy work to land governance is that the increase in psychological wellbeing and trust achieved through sociotherapy enables people to constructively deal with land issues. So far, there is no hard evidence from the DRC context that this bears fruit. However, anecdotal evidence from the implementation suggests that community cohesion is already increasing after about one year of applying the approach.
CDMs are a proven way of addressing local conflicts and have received much praise in the past [20
]. They operate based on a principle of cooperative and consensus-oriented problem resolution on the local level. They enable dialogue and trust between different groups within a community and provide an alternative to cumbersome and often biased judicial processes. Nevertheless, a stronger integration with formal justice e.g., by having outcomes of CDM processes validated by courts could improve the sustainability of the work. Furthermore, CDMs face strong challenges when engaging with big concessionaires and require effective training on how to act strategic in these situations.
Civil Society Engagement poses a central challenge to ZOA and its partners. There is a broad range of actors that can potentially be involved but among other issues logistical challenges impede this work. The idea behind the Civil Society Engagement is that existing civil society actors are guided through a process of formulating a common agenda to improve local governance structures and service delivery related to a range of issues including land rights. This is a new way of working to ZOA and requires strong diplomatic and organizational efforts. So far, tangible results are limited.
Improved governance on various levels by increasing the capacities of (local) actors is a necessary condition for long-term success of the strategy. ZOA works with actors on the provincial level as well as local actors to achieve this. The organization also engages in cross-level structures (including the national level) aimed at improved governance. This work stretches the (staff) resources of the organization and goes beyond the usual activities conducted. There are some visible successes so far such as an upcoming multi-stakeholder conference with national, provincial, and local actors aiming to produce a roadmap for improved land governance. This conference is supported by ZOA and responds to urgent needs identified in the current work. Coordination with provincial miniseries has also led to ongoing attention for land governance issues on the political level.
3.4. Analysis of the Choices Made in DRC
Without going into too much detail on the individual components of the land rights strategy, it is obvious that the chosen approach differs in significant aspects from the way of working chosen in the Burundian context. The approach explicitly targets different governance levels and is oriented towards high-level coordination and lobbying for policy measures that support the envisaged outcomes. This implies a much more direct involvement in politically contested and sensitive issues than the approach chosen in Burundi. So why did the organization choose a strategy that clearly involves a risk of stretching limited staff capacities and becoming strongly involved in a highly politicized context? This question is even more relevant knowing that ZOA defines itself as a rather locally oriented and anchored organization. While the organizational identity of ZOA can be assumed to be stable across country contexts, the central factor that influenced the unusual decision in this case is an institutional one.
Humanitarian and development efforts in eastern DRC are generally required to align with the International Security and Stabilization Support Strategy (I4S) of the international community and the Congolese government in the context of Stabilization and Reconstruction Plan (Starec) for the region [21
]. In particular, large projects with peacebuilding objectives need to be coordinated and aligned with these efforts and generally require multi-level approaches. However, it would be wrong to view the strategic approach simply as the result of adhering to external requirements. Internally, the need to coordinate and cooperate on different levels is also seen as an opportunity. The fact that multi-actor coordination mechanisms already exist is understood to be a challenge as well as a possibility to create the necessary conditions to reach all objectives of the work, not least relating to land rights, as well as to establish structures and support for long-term sustainability. At the same time, without the external requirement to align with the I4S such a complex, multi-level strategy would likely not have been chosen as it goes against the standard modus operandi
of the organization. This poses a challenge to the outcomes, as it also means that within ZOA, the opportunities to purposefully change the institutional framework might not be fully realized because this is a new way of working for the organization. The fact that a strategy was chosen that diverges from the organizational standard has implications for the ability to realize certain targets. Table 2
below summarizes the positions of different actors in this context as well as the relevant rules and norms affecting ZOA’s decision-making.
While ZOA would always prefer a localized approach, there are no internal norms or rules prohibiting multi-level approaches. The table above highlights that the specific institutional framework within which ZOA operates in the DRC requires engagement beyond the local level. The coordination and function of international actors under the I4S strategy can be seen as an acknowledgement that in areas of limited statehood5
, governance functions need to be fulfilled (also) by non-state actors. While many non-governmental organizations implicitly recognize this, it conflicts with the self-perception of an actor like ZOA. There is broad internal agreement that it is not the role of the NGO to assume quasi government functions. While it can be argued that this position is based on a misconception of the factual role of NGOs, this self-perception makes the organization even more reluctant to engage in higher-level governance work.
Within ZOA, there is agreement that the most important steps towards long-term stability and positive peace need to be taken on the local level, creating trust and a basis for cooperation as well as functioning local governance mechanisms. While it is realized that higher-level actors need to create certain institutional (legal, political) frameworks for enabling this locally oriented work, the perspective of a locally-embedded actor results in a strong orientation towards communities such as villages, households or congregations and other forms of communal organization. This also means that cooperation partners are usually sought on the local level. For an actor that has its roots in the humanitarian sector such a focus and prioritization seem quite natural. However, this orientation makes strategic cooperation and purposeful interaction around land governance issues a potential challenge. The reason for this is that such work might be perceived as mainly an externally determined task. This perception is likely to limit the overall commitment towards land governance efforts. Similarly, actors working mainly on governance issues beyond the local level are also more likely to focus on what they perceive to be peers and actors with the power to make substantial, structural change happen. They might view cooperation with locally oriented NGOs to be a requirement rather than an opportunity. This does not mean that cooperation between these different kinds of actors is uncommon. However, there is usually a clear division of tasks. In the case of land governance in the DRC, strong cooperation is required regarding policy issues and changes in the institutional framework, which means cooperation across different levels and types of actors in the form of a specific private-public partnership model6
. Such direct cooperation between state and supra-national actors and local NGOs with the objective of shaping policies and politics is much less common. Furthermore, it happens in a space where different kinds of actors fulfill governance functions without necessarily having a clear mandate for this. At the same time, the capacities of mandated actors might be overestimated. In such a setting of limited statehood standard setting partnerships need a high degree of institutionalization. If obligations and the precision of norms are not binding, multi-actor partnerships are likely to be less effective [21
The orientation of supranational and governmental actors towards perceived peers can result in a bias and misconception of their counterparts by assuming a degree of implementing power and political will that are unrealistic in a context like the Congolese where local actors often have the power to act as spoilers to higher-level political decisions. It can also lead to an under appreciation of the potential that lies in direct cooperation with more locally rooted or focused actors. The bias of international actors towards high-level initiatives has been strongly criticized in the past [22
] and the I4S approach can be seen as a reaction to the realization that top-down efforts will not produce sustainable outcomes. Unfortunately, this does not mean that the holistic approach is successfully translated into practice. Land governance is a good example of the challenges of facilitating effective cooperation between grassroots and top-level oriented actors. While the I4S framework requires cooperation, the aspects that actors focus on in their daily practice are likely the ones that are close to their standard way of working and shaped by internal norms and rules. This means that external factors can influence decision-making, but the degree of commitment to these decisions and the likelihood of success depend on a number of internal and external factors (see Table 3