37086 The World Bank Kabul Urban Policy Notes Series n.4 Informal settlement in Kabul What are the sources of conflict in urban land tenure? Formal property disputes in Kabul are numerous, but not as numerous as expected. Most formal conflicts pertain to highvalue properties on private lands, and it is value rather than volume that gives the conflicts issue a high profile. Nevertheless, the potential for significant conflict remains, and it arises from the insecurity of tenure and fear of bulldozing faced by 2.44 million people in the large and expanding sector of informal settlements. However, insecurity differs depending on the kind of title a settler holds. Settlers on unplanned lands typically have customary deeds, some of which have been regularized or benefit from the "blind eye" of the government. Settlers living on grabbed lands (termed illegal) are the majority; they do not have any titles and are more vulnerable to eviction. Potential for conflict also arises from poor governance in the allocation or cancellation of building plots and state apartments. The government should support a propoor strategy of regularization to address insecurity of tenure for Kabul's informal settlers, starting with those on unplanned lands. Also, both formal and informal mechanisms of dispute resolution (see Policy Note 5 and 6 of this series) should be reinforced to tackle the potential conflicts emerging over land tenure. 1 Formal property disputes are the privilege Formal property disputes and private lands of the rich. The more valuable the property, the more vulnerable it is to Context and volume wrongful occupancy. Hence, most conflicts pertain to highvalue properties, and it is Since 2001, formal property disputes in value rather than volume that gives the Kabul have been numerous, but not as conflicts issue a high profile. Conflicts numerous as might be expected. Several over real property also exist in the much thousand disputes have been presented for larger sector of houses and premises formal resolution--a tiny number in a city owned by middle and lowincome of around three million. Most of these population, but are mainly among family disputes pertain to private lands in formal members or relate to conventional areas. Eightysix per cent of all cases boundary and similar issues. Resolution is mediated by the Norwegian Refugee broadly contained within the household Council (NRC) in Kabul dealt with and the related informal social domain properties in private lands, and 69% were (neighborhood). in serviced areas. SASEI at The World Bank | 1 What are the sources of conflict in urban land tenure? The Special Land Disputes Court is the Table 1: Property Cases the Special Land mechanism established to address property Disputes Court (all branches) March 2003­March 2004 disputes over private lands resulting from Types of Disputes No. % the return of migrants and internally Disputed Ownership at Sale or 88 5 displaced persons (IDPs) to Kabul (see Purchase Disputed Ownership through Policy Note 5 of this series for further Falsification of Documents or other 448 26 discussion). "Inversions and Trickeries" Wrongful Occupation (Disputed Ownership of Occupant of the 1,175 69 Types and causes of formal property Property) Total 1,711 100 disputes relating to private lands Source: After Alden Wily 2004b, based on data provided by the Special Land Disputes Court, The types of conflicts emerging over December 2004.Note: Most of the cases relate to Kabul City and environs. privately owned lands mostly relate to the contestation of property ownership, and to private properties, disputants are more corruption and counterfeiting of often wealthier individuals and the documents on the part of government properties at issue include houses, officials and private persons, respectively. apartments, shops, and urban and periurban gardens and farms. a) Contested ownership of properties Wrongful occupancy or other disputes The issue for most private lands is the relating to ownership are not limited to contested ownership of property. This persons unknown to each other. particularly affects refugees and the Intrafamily disputes are also common and number of these disputes is likely to grow account for 36% of all NRC cases, as more refugees return to Afghanistan. compared with 29% of inheritance and Voluntary return records collected by preemption cases in courts nationally (see UNCHR show that 39% of refugees Table 2). formally assisted in returning to Afghanistan (86,270 families) owned homes or lands. For these families, the Table 2: Property Cases in all Courts in most common case of dispute is finding Afghanistan March 2003­March 2004 Types of Disputes No. % their home, apartment, or building plot Inheritance of Property (Ownership occupied by another who may be third or issue) 2,499 25.8 more in the line of owners. In fact, 69% of Wrongful Occupation (Ownership issue) 2,332 24.0 all property cases in the Special Land Land Sales & Purchases 1,898 19.6 Disputes Court (see Table 1) and 71% of (Ownership issue) Farm Water Rights (Irrigation) 690 7.1 the cases mediated by the NRC in Kabul Rents & Mortgages 541 5.6 deal with wrongful occupation, that is, Houses/Building Sales & Purchases 431 4.4 disputed ownership of occupant of the (Process) Preemption (right to purchase property. However, this represents only a ahead of others) 341 3.5 quarter of all property cases nationally (see Awarding Possession 313 3.2 Inheritance (Moveable with Table 2). Immovable Property) 279 3.0 Custody over Lands 207 2.1 Advance Payments Against Valuable properties are the most Purchases & Sales 85 0.9 vulnerable to wrongful occupancy, Boundary Disputes 66 0.7 subsequent transfer by both state and Total 9,682 100 Source: From Alden Wily 2004b, based on data private parties, and eventual dispute as to provided by the Supreme Court, Kabul June 2004. its ownership. In formal disputes over SASEI at The World Bank | 2 What are the sources of conflict in urban land tenure? b) Governance issues in land tenure bulldozer. However, their experience differs according to their status as illegal or Governance issues and claimant unplanned settlers. Beyond potential malfeasance reportedly lie at the heart of conflicts that could emerge from their many formal property disputes. Judges in informal status, intracommunity and the Special Land Disputes Court have private disputes over rights of way and reported many cases where relatives or other similar issues are also abundant in private persons have allegedly falsified informal areas. both documents and identifies. Claimants have pretended to be returnees, heirs of Informal settlements and insecurity of absentee or deceased persons, or acting on tenure behalf of absentees, and have claimed to hold notarized power of attorney. Police, a) Fear of the bulldozer municipality, and ministry officials are allegedly involved, either directly or by Eighty percent of Kabul's population (2.44 being bribed to collude. This is million) who have constructed or substantiated by NRC's data, which shows purchased homes in unplanned or illegal that more than one fifth of all cases are settlements are in different ways reported to involve blatant or subtle contravening the law and therefore can corruption by officials (see Table 3). potentially be subject to removal. A de facto policy of regularization exists, Table 3: Actors in Disputes Mediated by particularly since 2003, and informal areas Norwegian Refugee Council Categories % falling within the Master Plan have Cases involving land grabbing 13 already been accepted as available for Cases involving disputes with government officials, people from political parties, or Court upgrading (see Policy Note 2 of this series). judges 16 The authorities have also turned a blind Cases of alleged corruption, e.g. involving 7 eye to many settlements outside the Master bribery by municipality or Court Cases resulting from eviction by municipality Plan residential areas. Despite the for development projects 13 regularization trend, in the still Unclear/mixed/client has not returned or case 15 not concluded unregulated environment officials can No officials involved: cases involve two 36 evict by using technically legal but unjust personal parties or family members Total 100 procedures. The best known example of Source: From Beall & Esser 2005, based on bulldozing of housing was the village of information provided by NRC for 2004 Shirpur, on government land, in 2003. Regularization of Kabul's informal Notwithstanding the relatively few formal settlements according to the criteria disputes, given the magnitude of Kabul's specified in Policy Note 2 of this series is a informal settlements, the potential for promising way to address fear of eviction significant contestation over property in and bulldozing concerns. Kabul is enormous, and it is mostly linked to insecurity of tenure of informal settlers b) Tenure conflicts and to governancerelated issues. While all informal settlers have insecurity 2 of tenure, settlers living on grabbed lands Conflicts relating to informal settlements belonging to the state are more vulnerable than those in unplanned settlements. All informal settlers in Kabul face Many unplanned settlers own customary insecurity of tenure and live in fear of the deeds countersigned by a wakile gozar SASEI at The World Bank | 3 What are the sources of conflict in urban land tenure? (community representative), which are Unfortunately, these invasions have also valid proof of ownership in Afghanistan led to potential conflict between old and and hence provide some security of tenure. new members of neighborhoods. Those In addition to the de facto policy of protesting against construction--including regularization, the government has elders, wakile gozar, district police, and recognized that informal settlers living in municipality officials--have often been former rural villages have ownership of threatened or bribed. Communitybased houses, shops, and land on which they dispute resolution mechanisms offer a exist. These lands typically lack services plausible option for overcoming such and are less susceptible to wrongful disputes (see Policy Note 5 of this series). occupation; in addition, they belong to relatively stable monoethnic communities Intracommunity conflicts that are subject to fewer property disputes. In all sampled gozars where informal Kabul's informal settlers are mostly found settlements have arisen since 1978, and on state lands and are termed illegal. especially since 2001, there are many Illegal settlements have arisen either disputes over issues other than tenure. through planned invasions or through Familyhome related matters are abundant families individually taking over public in informal settlements, such as one house land to build their houses. Unfortunately, invading the privacy of another, footpaths the former case does account for the bulk being ruined with waste disposal, and of the expansions onto government land snows being cleared from one compound since 2001. Encouraged by inflated housing to another. While comparatively minor, prices, warlords have allegedly been the these disputes generate a great deal of heat major actors in planned public land and argument as to boundaries. The wakil invasions. For illegal settlers, insecurity of e gozar and local mosque councils play an tenure stems from the nonexistence of any important role in resolving such conflicts legal or customary deed to back their whenever they are called to do so. Such properties since wakile gozars do not communitybased mechanisms of dispute endorse their transactions. A great resolution should be encouraged (see potential for conflict over tenure both with Policy Note 5 of this series). the state and between neighbors exists in these settlements. The conflicts could 3 emerge if the government was to trace and Conflicts relating to stateallocated lands prosecute the culprits of these invasions. In many instances warlordprovided land or A smaller but still significant potential for housing was bought by intermediary conflict stems from governance issues in individuals not needing a house but rather relation to the past wrongful or nepotistic profiting from reselling the land. As allocation of land. Such issues apply to an recommended in Policy Note 2, the estimated 15,000 apartments in the government's priority should be to make a Macrorayan Estates. distinction between the warlord, who engineered the invasion of the land, and a) Allocation of land by the municipality the current owneroccupier who has invested in the property, and rule Historically, one of the powers and accordingly. responsibilities of Kabul Municipality has been to acquire private property at open market rates and reallocate it to enable SASEI at The World Bank | 4 What are the sources of conflict in urban land tenure? poorer households to have access to land formally cancelled and the apartment within formally planned areas (projects). reallocated in an unfair or nepotistic way. Since the Mujahiddin period (1992­96) One official estimated that upwards of 80% municipal officials estimate that a of reallocations even since 2002 were minimum of 26,000 plots have been paid unfair, with queuejumping and favoritism for and allocated on land that the rife. Other cases have involved powerful municipality is yet to purchase or develop. persons, including Mujahiddin leaders According to one official the real number from 19932004, who have coerced or could be double this figure. Often the intimidated tenants and owners and allocated plots are located on private land, evicted them, or taken over empty or plots are already built up and inhabited. apartments. It is of concern that some of The ways these plots have been formally these cases appear to have been acquired are reportedly heavily tainted "regularized" by ministry officials or by with what current officials now say was the courts. Similar to the wrongful outright corruption. In addition to the fees allocation of land by the municipality, lost to applicants, bribes often had to be nepotistic award and cancellation of paid, doubling or tripling real costs. The apartments has the potential to produce cancellation of building plots, which is significant property disputes in the another legal power of the municipality, Macrorayan Estates. has allegedly been used at times in an unjustified way. Needless to say, these 4 practices produce plenty of fuel for heated Governance and policy changes disputes between the existing owner of the land and the allocatees, who may proceed Significant policy changes have been to construct a house on the private land. instituted since 2003 with the aim of improving governance. The most notable Since March 2004 both practices have change has been the de facto restrain (with stopped and the current Mayor has periodic lapses) upon eviction. Possibly a resolved around 5,000 of an estimated million or more poorer people might have 14,000 disputed plots through purchase of benefited from the blind eye turned to the other land and reallocation. Such efforts new occupation or purchase of houses on should be supported. government land. Unfortunately, the benefit has been many times greater for b) Acquisition of governmentbuilt elites, including militia commanders who, apartments during the 2002­04 period, grabbed and sold public lands. Similarly to land allocations, since the 1960s the government has constructed In terms of dispute resolution and much houses mainly for civil servants and other needed restoration to rule of law, how to disadvantaged groups such as war widows. regularize the occupancy of the needy The Ministry of Urban Development and majority and at the same time manage the Housing has constructed and allocated an further allocation and development of new estimated 15,000 apartments, mainly in the land is a challenge for the new Macrorayan Estates (around 11,000 government. (See Policy Note 2 for apartments in four developments). recommendations on an expedited land Conflicts related to government development process.) constructed apartments include cases where provisional ownership has been SASEI at The World Bank | 5 What are the sources of conflict in urban land tenure? A policy of the postBonn Administration their homes, land grabbers and speculators relating to urban tenure has been to restore should be prosecuted. control over government lands and limit revived postTaliban allocation of these by Analysis of the potential sources of conflict officials. The freeze upon sales of new shows that the regularization process itself building plots by the municipality (Decree may trigger multiple disputes that will No. 99, 4.2.1381--2002) was important and need to be carefully managed. Family mostly has been followed by the new members may battle for valuable leadership in the municipality since March entitlement, neighbors will frequently 2004, but not by individuals who argue about illplanned boundaries and continued to develop government land who should surrender footage for public right up until the end of 2004. However, access, and those who have bought plots or the government needs to address allocation houses from land developers may find of state lands (recommendations on this themselves facing claims that they have are given in Policy Note 2 of this series.) not fully discharged their debts. In some disputes, formal resolution systems work Liberalization of the land market has been best; in others, informal mechanisms are attempted. Investors can legally access better (see Policy Note 5 of this series). surplus government land for approved Consequently, any dispute resolution developments (Decree No.89 of 8 1382-- system should be flexible enough to 2001). Decree No. 134 of 2 Sumbula 1381 contain both informal to formal resolution (2002) in Gazette 803 permits foreign mechanisms. Fortunately, both currently investors to lease land for up to 30 years. exist in Kabul and need to be supported. However, these measures need to be At the formal level, the Special Land accompanied by a clear legal and Disputes Court has been the primary way regulatory framework that guarantees that disputes of ownership, particularly tenure and development decisions that relating to formal lands, have been steer future growth and investments in resolved. At the informal level, many infrastructure. disputes are efficiently being resolved through the community, the mosque, and 5 the wakile gozar. Finally, both Kabul Conclusions Municipality and the Ministry of Urban Development and Housing should review The nature of land disputes and conflicts existing allocations policies and systems in Kabul points to a series of required and implement checks and balances to interventions. These are mentioned briefly ensure good governance. here, but are further outlined in Policy Notes 5 and 6. To address insecurity of This policy note is based on the document tenure, the regularization of Kabul's prepared by the South Asia Energy and informal settlements is the most promising Infrastructure Unit at the World Bank, route. Regularization is not a significant Kabul: Urban Land in Crisis, A Policy Note, shift from the current de facto policy. September 2005, based on research Following the selection criteria displayed conducted in January 2005. in Policy Note 2, a propoor regularization strategy should be developed. On state lands, this would mean that whereas poorer households should be given the opportunity to secure formal ownership of SASEI at The World Bank | 6