Author: Patrick McAuslan MBE (1937-2014) Development practitioner and Professor of Law, Birkbeck College, University of London
Although I write about law and development and have some reputation in the field of law and development, I don’t really see myself as a practitioner in the field of law and development. When I am asked to become involved in some project involving land or local government – my other area of expertise – by a UN agency or a bilateral aid agency like DFID or an IFI like the World Bank, its because of my presumed expertise in land matters not because I have expertise in law and development. That is not a recognised area of professional practice even though it’s now a recognised category of World Bank legal expertise and rates its own week of workshops. Law and development is a way of looking at legal problems—of making some sense of them and of bringing to bear an analytical framework to what one is doing in the field. I should also make absolutely plain that this is one person’s experiences in a very sheltered part of the world of international consultancy: legal advice and legal drafting. It does not claim to be typical of international consultancy in general.
My work over the years can be classified into four phases:
In the early years I was hired by UN-Habitat and occasionally UNEP to advise on and draft laws on town and country planning, urban land development and the environment in stable countries with reasonably effective central governments (Tanzania, Trinidad and Tobago; Malawi; Maldives; British Virgin Islands; Turks and Caicos Islands; India, Uganda just after the fall on Amin)
Then I had an interlude for three years when I worked full-time for UN-Habitat as a land management adviser in the Urban Management Programme (UMP)1 . I was based in Nairobi and went on numerous missions but the longer I stayed in the job, the more I became an UN administrator flying to and from Nairobi, New York (to UNDP) and Washington (to the World Bank) our partners in the UMP, and sending other people out to do the jobs I had been doing when I was a consultant.
On my 1993 return from the UN, I became more involved in (more political, high profile and contentious) land tenure and local government issues, natural resource issues; and worked for a much wider range of agencies: World Bank; DANIDA; FAO; DFID; GTZ (now GIZ); USAID as well as UN-Habitat; in countries such as Tanzania, Uganda, Maldives, Bangladesh, China, Yemen, Namibia, Lesotho, Swaziland, Botswana, Serbia, Ukraine.
Since the turn of the century, I have become increasingly involved in drafting new, and implementing existing, land and local government problems in post-conflict societies (such as Rwanda, Sudan, Afghanistan, Somalia and Somaliland; Liberia; Cambodia and Laos) where these are highly political matters, and where anything one does is likely to offend someone.
When I was first hired by the predecessor of UN-Habitat, the UN Centre for Planning Housing and Building based in New York in 1977, there was little understanding of the role of law in development, little knowledge of what lawyers did or how they did it. The 1970s were part of the era when international and national agencies didn’t rate law as a necessary input into development. The UN agencies responded to requests from countries; they didn’t offer the services of lawyers.
So in 1977, Tanzania asked for a legal input into its programme of developing Dodoma as the new capital of the country; the UN put the word out to its members. The Canadian head of the UN team working in Dodoma put forward a nomination of someone from Canada whom he knew; the British Government put forward the doyen of British planning lawyers, Sir Desmond Heap; and I applied as a result of an advert in a Swedish newspaper sent to me by Professor Yash Ghai, a former colleague of mine from the University of Dar es Salaam who was working in Sweden at the time. Much to the chagrin of both the Canadian head of the team and the British Government I was selected by the Attorney-General of Tanzania, a former student of mine – I had taught law in the University of Dar es Salaam for five years between 1961 – 1966 – who chose me on the not unreasonable grounds that I knew something about the laws of Tanzania. That was my introduction to the world of consultancy.
I arrived in Dodoma: no-one knew who I was; what I was supposed to do or how I was supposed to do it. There was a feeling that the law was a hindrance to getting on with the job of developing Dodoma as the capital and I had to sort it out. I had a local counterpart but he too was a complete novice at the game. The Canadian master planners who had produced the Master Plan for Dodoma in Toronto regarded the law as pretty irrelevant; for them it was planning by the bulldozer. Any proposals for changes to ‘their’ Master Plan had to be sent to them in Toronto and nothing could happen until they had sanctioned the change which they rarely did. It required two very heavy weight advisers to alert the Director-General to the game the consultants were playing after which their services were dispensed with.
I had carte blanche to get on with the job. I will spend some time on this first mission because in retrospect what I did there influenced how I tended to proceed thereafter. It was really a question of common sense and applying to the task of the practical assessment and application of the law the same approach as I would apply to academic work and the preparation of an article:
- find out what the existing law is;
- find out whether and how its applied;
- talk to officials applying the law to see how they see the issues and problems;
- come up with an Issues and Options paper setting out the issues, possible solutions and preferred options;
- set out a timetable and process for discussing the Issues and Options paper and then developing the preferred options into a law
In the case of Tanzania, I was immensely fortunate that I knew all the key lawyers in government as I had taught them during my time as a lecturer in the Law School of the University of Dar es Salaam and had no difficulty in going to see them and discussing my ideas with them and getting their input into my work. Through them I could get to see other senior officials and Ministers. Once the head of the Dodoma Capital Development Authority knew I had these contacts, I could get to see him very easily in Dodoma and get things done. I worked closely all the time with my local counterpart, the corporation lawyer. So in the space of my three month mission, I drafted the relevant regulations to give the Authority the necessary powers it needed to plan and develop Dodoma, drafted a Bill to set up a specific Dodoma Urban Development Corporation, wrote manuals of practice and got the message across within the Authority that law was relevant and things would go better if it complied with the law2 . All my draft regulations were promulgated unchanged within a very short space of time.
Get on side with the key lawyers and especially draftspersons
Explain to them that you are not usurping their role. You are preparing a report for a Ministry or some other agency. The report might take the form of a draft law but its only a report and it is for that Ministry to decide what to do with it. If it passes it on to the government drafting office, then they will take it over and deal with it as they see fit, following government practice and procedures. Draftspersons don’t like outsiders taking over their functions and are in a powerful position to scupper those who try.
In Uganda, in 1998, where I was hired by DFID to help redraft the Land Bill, I made sure that I worked very closely with the parliamentary draftsman throughout my time there and so ensured that most of my suggestions for changes to the Bill were accepted and found their way into the Land Act 1998.
In Afghanistan in 2005, my first official meeting was with the deputy Minister of Justice. We immediately established a rapport as he had a PhD from London University and knew all the libraries and places I work in as a Professor of Law at Birkbeck College. He asked me how soon I could draft a land law for the country. I had been in Afghanistan for three days. I explained that there were quite a few issues which needed to be settled before that could take place such as the preparation of a national land policy and a review of the existing laws to see what was missing or needed revision and addition. I then paid a visit as soon as I could to the government draftsperson to explain my mission to him: to review the laws and make suggestions for changes. If I thought any new laws were needed I would consult with him. His response was positive and helpful precisely because I had gone to see him. What legal consultants usually presented him with was a bill drafted elsewhere – usually in a lawyer’s office in the USA – and he was told to get it enacted as soon as possible. Sometimes he was getting two bills on the same topic drafted by consultants working for two different agencies. Not surprisingly many of these bills were and are not going anywhere.
In Azerbaijan, my mission in 2007 on behalf of the World Bank was to draft a land acquisition law meeting acceptable international benchmarks which was a precondition to the release of some $400 million worth of loans from the Bank for a major programme of road building. The project was run by the Ministry of Transport and I reported to the Project Director in that Ministry. But when I went to see the Deputy Director of the Drafting office in the President’s Office, he emphasised that I should work closely with him and his office and not worry too much about the Ministry of Transport which didn’t carry any clout with other Ministries. Once he was satisfied with the draft, things would go ahead. I worked closely with him – the Project Director in the MoT was happy with the arrangement – and good progress was made.
In Mauritius in 2004, I was asked to apply for the post of the draftsperson of a new physical planning law which the government was developing with the assistance of a British consultancy firm. I duly applied but lost out to an Australian lawyer who had never done any consultancy but had a Ph.D which in the eyes of the procurement office gave him two more marks than I on their score card since I had what were regarded as just two bachelors’ degrees3 . He did not get on with the senior planners in the government planning office. When he had completed the first draft of the law, he marched into the planning office, slapped the draft law down and promptly left the country without waiting for comments. I was then asked to come in and pick up the pieces, redraft the Bill and write a commentary on same. I worked closely with the planning consultants, the planning office and the government drafting office although I had to work from my hotel as I was there ‘unofficially’ and not approved by the procurement office. We managed to get the Planning and Development Act 2004 passed by the legislature just a few days before the deadline of the legislature rising for its summer break.
Become familiar with the laws
This may sound rather obvious but consultants who see their role as drafting laws to replace existing laws tend not to bother to grapple with laws which by definition are deficient and need replacing. But if you don’t know what’s there, how can you set about drafting a new law to replace existing law and fit it into the existing national corpus of law. Uganda received a grant to review and upgrade its commercial laws. The contractor was a US firm whose lawyers for the most part sat in Philadelphia drafting laws modelled on US commercial and company laws which were then sent to Uganda for enactment. The Uganda Law Reform Commission which had been by-passed in the process reviewed the drafts and found virtually all of them wildly impractical as they were attempting to impose US laws on a legal system which, for better or worse, was based on English common and statute laws and company law.
Increasingly I am working in countries which do not have the common law and do not work in or sometimes do not speak English very much. My first port of call after getting a request to submit an EOI or come in with a firm submitting an EOI or a bid for work is Google: I ask it to find e.g. the Land Law of Azerbaijan in English. I would say that eight times out of ten Google finds it: often the US State Department has translated the laws of the country concerned or some Mid-Western US Law School has a programme on the law of the country: I discovered a lot of Ukrainian law in English from one such programme before I went to Ukraine on a World Bank funded Community-Based Carbon Sequestration Project under the Kyoto Protocol. My Ukrainian colleagues were astonished that I knew so much about Ukrainian law when I arrived; by the end of my mission they were suggesting we wrote joint articles together on aspects of Ukrainian forest law.
In Serbia, I told my Serbian counterparts of translation services in Belgrade which translated laws into English they didn’t know about. In a university bookshop in Baku, I discovered an Azeri-English Law Dictionary and larded my reports thereafter with Azeri legal concepts. It makes an enormous difference if you can demonstrate by such practical steps that you know about and are interested in the laws of the country you are advising. Your report and suggestions will be taken that much more seriously.
In Afghanistan, I was involved in a meeting at the UNDP to discuss the reform of local government. Two UN agencies were involved – UN Assistance Mission to Afghanistan (UNAMA) and UN-Habitat yet there was no linkage between UNAMA’s programme of developing municipal law and UN-Habitat’s. The two programmes were proceeding in ignorance of each other and on very different principles – UNAMA’s on principles derived from French local government law where their consultants were drawn from, UN-Habitat’s on basically English principles where I was stressing utilising the Afghan Municipal Law of 1957 which was more English/Indian inspired than from any other system.4 UNDP too had a programme of local government reform proceeding without regard to other programmes.
Establish a good rapport with a local counterpart
In most projects, a local counterpart is written into the arrangements but not always. In Tanzania, where the British Government was asked by the Tanzanian Government in 1995 to field me to draft new land laws to implement the National Land Policy approved by Parliament in June of that year, I arrived in January 1996 to start work to find that no one had thought about counterparts. One of my first actions was to put up a memorandum to the relevant official in the British High Commission – then the ODA was bundled up into the BHC and was not separate as DFID is – asking for funds to hire local counterparts. This was quickly agreed and I had a team of four local counterparts – a legal official from the Ministry, a person from the Government Draftsman’s Office; a academic/practicing lawyer specialising in land law and a member of the Tanzania Law Reform Commission – who worked closely with me. We met each Friday to review the work I had done during the week and sometimes during the week informally as well. In retrospect, I should have made sure that at least one the counterparts was a woman.
I have been very fortunate on the whole with my local counterparts. In many countries, to become involved in a donor funded project is a very welcome boost to one’s salary, so good people are attracted to the post. But as noted above it helps if you can demonstrate a knowledge of and interest in their law and legal system. Serbia is an interesting example. I was there on a World Bank project reviewing the land laws of Serbia and any possible reforms that might be needed in the wake of the introduction of a new system of title registration, much opposed by the legal profession that objected very strongly to replacing a registration system that was over 100 years old and operated by the courts for a Torrens type system operated by an administrative agency which was being pushed very strongly by the Bank. The Serbian position was that, first, the system then used in Serbia was well known to everyone and, second, having suffered under administrative interference with land law and rights in the land during the years of Communism, the last thing the country needed was another administrative agency regulating land rights and land law.
I had some considerable sympathy with the position of the lawyers and my counterpart who had both a Serbian and a US law degree introduced me to her ex-professor from the Belgrade University Law Faculty who was the leader of those opposed to the introduction of the Torrens system. Had it been known that I had met with him I might have become persona non grata with the administrative agency which I worked in and reported to but I made the point that I needed to know all sides of the issue to understand the law and this was accepted both for me and my counterpart. It helped that the leader of the antis and I were both Professors of Law. He presented me with the latest annual volume of the Law School’s Yearbook – 785 pages on land registration and why the current system should be retained. Only 12 pages were in English but the gesture was much appreciated.
Clear your modus operandi with your implementing agency
It should not be assumed that as a lawyer you are always working with or in the Ministry of Justice. In over 30 years of consultancy it has been a minority of occasions that that has been the case. I have found myself working to or reporting to Ministries of Land, Housing, Natural Resources, Local Government; Interior, and Transport, to City Councils or Commissions; to Urban Development Corporations, and to Land Registration Agencies. Its important to establish a rapport with relevant officials in these institutions. Apart from anything else they will be providing you with office space and you need comfortable office accommodation. When working in Tanzania on the Land Bill I reported to the Permanent Secretary of the Ministry of Lands, Housing and Urban Development. He allocated me an Assistant Minister’s office – there was no Assistant Minister at the time – and I was welcome in his office any time. We talked not just about the Bill but about land and administrative problems generally and it helped me greatly to understand the context of my work. Not that it was all plain sailing. In my work plan I made it clear that I regarded the Report of the Presidential Commission on Land Matters of 1992 which sparked off the whole land reform movement in Tanzania as one of the key documents to refer to in drafting the new law. The PS took issue with this. The National Land Policy was the key document and had taken from the Presidential Commission what was thought to be appropriate to become national policy and incorporated into law; the Report was at best a subsidiary document only to be used when the NLP was silent on an issue.
In Trinidad and Tobago, where I was a UN-Habitat consultant working on a new town and country planning law, I was working in the offices of the planning department. The Chief Planner herself took me on a guided tour of the whole island pointing out the planning issues which in her view needed legislative solutions. My draft Bill however was never enacted; it was overtaken by a decision to proceed to a major environmental management law instead.
Sometimes one can come unstuck. Two examples come from Lesotho and the Maldives. In Lesotho, I was part of a project to review land policies and land laws in Lesotho in 2002 – 2003. I was to write a new land law, a new land acquisition law and review the work I had done in 1996 on revising the Town and Country Planning Act which had not been proceeded with. I had a good counterpart from the Department of Lands and we seemed to be making good progress with the Minister of Local Government who attended meetings and seemed committed to enacting the new laws. Nothing ultimately happened.
I later discovered why the legal project more or less collapsed. The Minister did not get on with her Permanent Secretary, the former Commissioner of Lands. She thought he was a former student of mine (which was not the case) and that I was trying to infiltrate his ideas into the law I was drafting so she just turned off from pushing forward with the law. Far from my trying to infiltrate the Permanent Secretary’s ideas into the laws I was drafting, we had fallen out in 1996 when I was revising the Town and Country Planning Act and had put the Chief Planner as the key decision-making official in the Act. The Commissioner of Lands considered that, as head of the department under which town and country planning came, he should be the key decision-making official in the Town and Country Planning Act and that I had snubbed him and put in the Chief Planner who was a Tanzanian and who I was favouring as someone who had worked in Tanzania with me. Again that was not the case. The Commissioner of Lands instead of altering the draft law or explaining to me why he should be the key decision-maker refused to speak to me or have any dealings with me for three years. Only in 2002, as the Permanent Secretary in the Ministry was he prepared to talk to me again. In the event, a new Land Act was put together by American lawyers under a Millennium Corporation project.
The second example occurred in the Maldives. I was a member of a team working in the planning department developing a housing and land policy for the country in February 2002. I was looking at the land laws. A draft land law had been before the Majlis (the legislature) for about 5 years and seemed to be going nowhere. It was not a good law; it was badly drafted, leaving a lot of loose ends open, and did not cover the key issues. I wrote a memorandum to that effect suggesting a complete rethink of the draft. With some officials from the planning office in which I was working, I went to see the Attorney-General to discuss the draft law and how to proceed. I sent a copy of my memorandum to him in advance.
When we arrived, he castigated me in a way I had never before experienced. I had penned a useless memorandum; it was not worth my being in the country if this was all I could do; I had not made any constructive comments. He didn’t wish to see me again. That was the end of meeting. My colleagues from the planning office were acutely embarrassed by the whole performance. They said the A-G was known as someone who very easily lost his cool. One problem was that his brother had been the principal drafter of the land law. There was well known tension between the A-G and the Ministry of Lands which we came under as the two offices had very different ideas about the possible nature and content of a land law. In some respects the A-G was quite forward looking in his thinking about land management in Maldives: he wanted to rid the country of its feudal landlord/tenant relations.
The second mission of our team was in September 2002. The A-G has worked hard in the intervening period and had persuaded the Majlis to enact the Land law unchanged from the draft I had criticised. So we were presented with a fait accompli. Perhaps if I had been more diplomatic in my criticisms, some changes to the draft might have been acceptable. It was a useful lesson to learn. Even if you think something is rubbish, its not always politic to say so.
But there is a twist to this story. In 2006 I was invited by the Law Reform Commission of Maldives to come and help them…redraft the Land Law. All my criticisms of the original Bill had proved to be correct so I was told, so I was the person to come back and draft a replacement which I duly did, making sure that through numerous meetings of a consultative group, I had the approval of key persons for what I was drafting.
Keep good, close good relations with the funding agency
This again is one of those maxims that might be thought to be a ‘statement of the bleeding obvious’ but its necessary to highlight it. Its not just a matter of self-preservation and ensuring another contract later on but a recognition that the funding agency has its own contacts with the client government, has its own experts in the field office and is a vital resource for your work. The examples I could give are legion. In Afghanistan, my first mission in 2005 was for UN-Habitat. The agency had a very good reputation in Afghanistan as it had stuck it out in the late 1990s during the Taliban era working with the urban poor. The head of the Habitat office in Kabul was a forceful yet very open and pleasant person who had built on the reputation of the agency. So doors were open to me and I could be immediately effective because I was seen as being part of an agency committed to Afghanistan. My second mission in 2007 was for the World Bank. My immediate boss was based in New Delhi but came frequently to Afghanistan. She had done her PhD in Afghanistan in the late 70s, could speak Pashtun and Dari and had a range of contacts herself because she was seen as someone who was committed to the country in a way some aid and IFI officials were not.
In Uganda in 1998 I was invited to participate in a workshop on the new draft Land Bill. I was asked to speak on whether it was feasible and implementable. I said in my contribution that I couldn’t answer those questions because the Bill was so badly drafted I couldn’t understand much of it. The Minister – a former student of mine – asked if I would come back and help in redrafting the Bill. I replied that he would have to speak to the head of the DFID office in Uganda. The Minister then got up and announced that he was glad to be able to say that DFID had agreed to support my return to help with redrafting the Bill. Fortunately both the Minister had good relations with the DFID official and in the short time I had been in Uganda I had got on well with him too so he agreed to my returning both for a short-term input in 1998 and then a one year input in 1999 – 2000 to head up a longer term DFID input to assist with the implementation of the new Land Act.
But there was a downside to this. At the time the DFID office in Uganda came under the overall supervision of the DFID office in Nairobi, Kenya. Officials there clearly didn’t like the young official in the DFID office in Uganda and rather took the view that they had been bounced into supporting the one year project on which I was the Chief Technical Adviser. So they were never fully behind it and when central government officials in Uganda set out to sabotage the project – its purpose was to implement the Land Act which in accordance with the Constitution was to decentralise land management to the districts and so remove power and its benefits – licit and illicit – from officials at the centre – and allege financial mismanagement and other deficiencies on the part of project personnel, practically no support for the project was forthcoming from DFID in Nairobi. I had the option to extend my contract after the initial one year term but after discussing the matter with the new DFID official in Uganda decided not to. The project had been so well sabotaged by the central government officials I had to work with that it seemed pointless to stay on for another three months.
A third example. I was team leader of a large DANIDA team consisting of Danes, me and several Tanzanians to bring forward proposals for the reorganisation of the Dar es Salaam City Council into a two tier local authority. At the time of the mission in 1997, the elected city council had been replaced by an appointed Commission. The deal between DANIDA and the Tanzanian Government was that our report would be acted upon and elections would follow to restore a democratic local authority. I was team leader and kept in close touch with the relevant officials of DANIDA. We completed our report and handed it in. One week later the Tanzanian Government announced that it was postponing elections to the city council until national local government elections in a year or so. DANIDA was not best pleased but defended the team and the report which was being accused both within and outwith Tanzania as being part of the ‘plot’ to postpone elections. We were as much in the dark as DANIDA and keeping them closely informed of what we were doing all the time enabled them to defend us convincingly.
Set out the principles underlying your specific recommendations
Many if not most reports tend whether by accident or design to conceal the principles that inform them. Authors often argue that setting out principles is an academic affectation; clients want solutions, not woolly waffle. But reports which just consist of ‘solutions’ are in fact full of principles which are in fact concealed. It has always seemed to me that one should show respect for the client by explaining to the client why you are making the recommendations you are and this means setting out up front the basic principles that you are using to arrive at your recommendations.
In the early years of the Urban Management Programme in 1986 I was asked to prepare a paper for a conference on aspects of urban land management and I set out there the principles I thought should inform any system of land management. They seemed to meet with approval and the paper I wrote there was published some years later in Regional Development Dialogue, the journal of the UN Centre for Regional Development5 . I have used them constantly ever since.
I adapted these principles too for use when reviewing the system of municipal government in Afghanistan. Setting out principles allows the client to see where you are coming from and enables the client to engage with you and if necessary disagree with you if it thinks one or more principles are irrelevant in its own national context. Since the UN City Summit of June 1996, I have also tended to use the principles set out in the Habitat Agenda and the Global Plan of Action to support my recommendations and drafts on many aspects of land management pointing out that governments which signed up to the Habitat Agenda are under at least a quasi-legal obligation to carry out its recommendations.
Don’t take it personally
It will be a rare consultant that can go through a career without receiving some flak. If you let it get to you, you won’t last. This applies to any public official. Yes, you cannot ignore it and should try to learn from it but don’t let it get to you. Equally, don’t become too personally involved in a project so you take it almost as a personal insult or criticism if your recommendations are not accepted. I think the chairman of the Presidential Commission on Land Matters in Tanzania fell into that trap when he took very personally the rejection of a key recommendation of the Commission that Tanzania should establish a new constitutional entity – an independent Land Commission that would be answerable to Parliament and in which all land in the country would be vested so removing it from the President’s control. Very rarely for Tanzania, the 9 person Commission report had attached to it 4 notes of dissent all on this recommendation so in effect it had gone through in the chairman’s vote. It was not surprising then that the government did not accept so far-reaching a proposal when the Commission itself was so sharply divided on it.
Try to reconcile fundamental principles with client requirements
What should be the stance of a consultant where either during the course of a consultancy or at its outset, there appears likely to be a conflict between fundamental principles and what the client wants? Fundamental principles would include such issues as respect for human rights, the rule of law, gender equality. I have never had to confront a stark choice on these issues but there have been occasions when I have had to examine what I was doing very carefully and question whether I should be doing it or how I could ameliorate policies which were likely to infringe fundamental principles. A few examples may be given.
It was reasonably clear that nothing was going to come out of my work on land management reform in Afghanistan as warlords and other members of the ruling circles were not going to give up land forcibly seized from peasants and the urban poor. My consultancy was a wasted effort. I have since written critically on the Afghan government’s disinclination to tackle the gross inequities in land management. But there are some welcome signs that in some quarters, a more equitable approach to land issues is being adopted. In 2010 I worked on a World Bank funded project to improve and upgrade rural water infrastructure on a demand driven basis. My role was to develop a Resettlement Policy Framework based on World Bank Operating Procedure 4.12 which requires fair procedures and fair compensation for those likely to be dispossessed of land during the project. There was clearly a commitment within the Ministry of Energy and Water to take the RPF on board and make it work. I have been asked to go back and develop the RPF into project-specific provisions.
A footnote to this project is instructive. When I arrived in Kabul I thought it would be sensible to see if there were any models I could in developing an RPF. The Ministry didn’t seem to know of any. I tried Google. Lo and behold, in an Asian Development Bank site there were several examples of resettlement projects based on ADB principles (which closely mirror the World Bank’s) from…the Ministry of Energy and Water. But they were from the Energy side of the Ministry so Water officials didn’t know of them. I used them extensively in developing the RPF.
In 2008, I participated in a World Bank IFC project to review administrative systems including land management systems in four states in Northern Sudan with a view to recommending how they could be made more efficient so as to encourage foreign investment in Sudan. I had misgivings on this project: the Sudanese government’s handing out of land occupied under customary tenure in Blue Nile and Southern Kordofan States to foreign investors from the Gulf States had been the principal cause of the inhabitants of those states joining in the civil war on the side of the SPLM. I had worked on a USAID mission with SPLM legislators in both those states in 2006 to develop laws to implement the special protocol of the CPA applicable to those ‘transitional’ states. Furthermore, the national government had taken no steps to comply with the provisions of the Interim National Constitution, themselves copied from the Comprehensive Peace Agreement, to review land allocations in those states and re-instate the recognition of customary tenure throughout Sudan. What would be gained by facilitating a repeat performance elsewhere in the North?
I decided to go and was pleasantly surprised. It was very evident that many officials in the state governments did not agree with the policies on land management of the national government. State governments were recognising the claims of persons occupying land under customary tenure and were, albeit with an ill grace, prepared to buy them out if their land was earmarked for development either by the state government or by a foreign investor. The North Kordofan State government had in fact begun an unofficial programme of the registration of customary tenure rights so as to increase the protection accorded to them. Our report drew attention to these positive developments which were much more compliant with the constitution than the national government’s actions and policies. An alternative and fairer model for land management has been given some publicity in Sudan.
In Uganda, after the saga of the ‘lost amendment’ to the Land Act 1998 when an amendment to improve women’s rights to land was never formally passed although generally agreed to in the last hectic hours of getting the Bill through the National Assembly by the deadline stipulated in the constitution, I worked with women’s groups and the relevant Minister to put together an amendment to the Act to reinstate the lost amendment. The President then announced that any such amendment would threaten the social and economic stability of Uganda – a very unlikely scenario. This did not stop women’s groups from continuing to argue for the amendment nor myself from continuing to help them.
I worked on a DFID project in Rwanda to improve land management. My role was to draft secondary legislation to provide for the implementation of the Organic Land Law. The Law made clear that its aim was to introduce a modern system of land tenure and title registration and to eliminate customary tenure altogether. Several NGOs had pointed out that the policies of the OLL would benefit the urban elite – largely Tutsi – and disadvantage the Hutu rural majority. I was not aware of this sub-theme behind the OLL before I went to Rwanda. When I became aware of it, I tried to draft secondary laws which would continue to give some recognition to customary tenure as I was aware from experience elsewhere that the ‘abolition’ of customary tenure is not likely to be achieved in the foreseeable future. But the OLL has the potential to lay the groundwork for severe inter-communal tensions over land in Rwanda in the future.
Faced with a stark choice between ‘good’ and ‘evil’ – for instance a request to draft a law which enables the government to seize land whenever it wants to without paying compensation, a law similar to the Unregistered Land Act 1970 of Sudan – I would try to argue against it. If the government was obdurate, I would walk away. But few such choices presented to a consultant are couched in such terms so there is usually room for negotiation and manoeuvre and that I think is the preferable way forward.
Handling impractical projects
My experience is that this is much more likely to occur than dealing with issues arising from the preceding lesson. I will give two examples. In 2003, I was involved in an EU project to review the land and environmental laws and practices in Albania with a view to recommending what changes might be needed in the context of an application to join the EU. I was working with a good team of Albanian and international consultants. The project involved helping equip land offices up and down Albania with computers so that they could register land transactions in the land registry. This involved some drives to various parts of Albania and then arriving at very small land offices with an electricity supply coming from a very old and rather unstable light bulb fitting. We duly left the computer with the land officer who knew not how to operate it and I think we all realised that this was a particularly futile exercise but one which was part of the EU project and therefore had to be complied with.
The second example also involved the same matter: computerising the land registry in Tanzania. This was a World Bank project aiming at reducing the length of time that the World Bank Doing Buisness Guide claimed was needed to obtain a title to land in Tanzania: 73 days. I was part of a Swedesurvey team involved in the project, with my role being to review the land registry law and propose amendments to permit the operation of a computerised land registry. One of our first tasks was to look over the land registry in the Ministry of Lands, Housing and Urban Development (Ardhi). It was quite incredible. Files were totally disorganised; lying all over the floor. Some shelves had collapsed and had not been replaced. No funds were being spent on the land registry. Electricity supply was erratic. The staff often had to contact lawyers in the private sector to find out the details of land which should have been but was not registered. Leading lawyers in the private sector were extremely sceptical of using the manual land registry let alone using a computerised land registry with the multitudinous issues of security.
I don’t think I was alone in considering the project impractical. It would have taken years to computerise all the files and train the staff to operate a new system. A leading private practitioner with forty years’ experience in conveyancing pointed out that the whole project was misguided as there were many other steps that had to be taken before a title could be obtained and in his opinion the land registry was one of the more efficient parts of the process. But again, that was our task so we applied ourselves to it as best we could. I had to write a report on the Land Registration Act 1953, comparing it with “international norms”. I take the liberty of quoting from my report to show the nonsense of such a requirement:
There are no international norms in title registration. There are many different national systems of title registration and it would be next to impossible to try and frame out of them some common set of provisions which met an international standard. To give just one example drawn from Anglophone Africa, how could an “international norm” be framed which embraced both the deeds registration system of South Africa which is also part of the law of Botswana, Lesotho, Namibia, Swaziland and Zimbabwe – the ‘English’ system of title registration contained in legislation in Kenya, Tanzania and Zanzibar (although each Act is very different) and the Torrens system of title registration operative in Uganda? And this completely leaves out the wide variation between different forms of European title registration e.g. the Belgian found in Rwanda, and the French systems found in parts of Francophone Africa.
I then proposed a slew of amendments to all the various laws applicable to title registration, documents registration, chattels transfer registration, none of which had been dealt with two years later.6 There really was no incentive either on the part of the consumers – land owners and their legal advisers – or the producers – registry staff – to pursue the exercise and without that kind of pressure the legislature is unlikely to act. Nor, so far, has the World Bank come in to push the project forward. In each case however, Albania and Tanzania, you have to give it your best shot.
I cannot claim that what is in this paper are the only lessons to be learned. On further reflection, there will be I am sure further lessons. I have been working as a consultant for over 35 years and in over 40 countries so there are many experiences which I have not touched on. But I am convinced that consultants should be more prepared to write about their experiences so that other may learn from them. So my tenth and last lesson is perhaps the most important: There is always more to be learned; never think you know it all. Wherever you work and whoever you work with, you can always learn from them as they will have had experiences you have not had and they will have an understanding of their own country and its problems that however much reading you do you will never be able to come close to. You may be a consultant but you are still, and will always be, a student.
4.The UNAMA consultants’ approach was to develop a model of three ideal types or concepts of local government and apply that model to the Afghan situation. Afghanistan was found wanting because its ‘system’ of local government didn’t fit neatly into one of the ideal types but crossed the boundaries and so was ‘confused’. The aim of the consultants was to develop a system that slotted neatly into one of the ideal types. Being something of a English pragmatist and a lawyer to boot, I didn’t find that approach very helpful and suggested that the Afghanis wouldn’t either. (Meetings at UNAMA on this matter were conducted in the absence of any Afghans). My approach was to start from the 1957 local government law and suggest that that was a good model which I had read through and should be built on.