21.09.2004 - Source: UN General Assembly

Land disputes and illeagl seizure of land ("Report of the independent expert of the Commission on Human Rights on the situation of human rights in Afghanistan A/59/370") [#28465],  [ID 807]

"73. Another significant human rights issue involves illegal forcible seizure of land, access to land and housing, and the violations associated with land disputes. The problems regarding land are linked to many years of conflict, lack of clarity regarding land ownership, irregularities in the exercise of local and regional power, and the large number of returning refugees and IDPs. The value of land has increased substantially, and the country’s highly irregular titling system and general lawlessness have allowed those with political power and armed backing to grab large tracts of land throughout the country. The general corruption of the legal system makes it easy for those with power to obtain false title to land, and the inability of the State to provide basic legal protection for landowners makes it difficult for those without connections or power to defend their rights.
74. The land situation in Afghanistan involves an array of interconnected problems. For example, different people often hold legal title to the same land. At various times, more than one titling agency existed or subsequent administrations provided different titles, so it is possible for legitimate competing claims to the same piece of property to exist. Also, those with title to land (or someone who has lived somewhere for a long time and may not have legal title) are often forcibly removed or denied access to their property by powerful individuals and groups. Sometimes this occurs at the order of an individual such as a warlord or local commander. Other times, a person may be forced off the land by a less dominant figure who possesses arms or has political connections.
75. In many areas, municipal authorities are charged with distributing unoccupied land and with approving various types of development projects. The independent expert has received testimony regarding numerous cases of authorities’ demanding large bribes for the provision of titles and the approval of building projects.
76. In November 2003, the Special Property Disputes Resolution Court was established by presidential decree. It replaced an earlier system involving a commission, widely viewed as corrupt, that passed cases on to the Supreme Court. The Court can accept claims dating back to 1978, and is divided into sections dealing with claims in Kabul and those in other provinces. The Court can order compensation for illegally occupied land, and also determine who the proper owner is. The Court is underfunded, fails to take into account the special needs of IDPs in this domain, does not cover disputes where one side is the Government, and provides limited coverage for cases from the provinces."

Document(s): Open document

29.09.2003 - Source: International Crisis Group

Different forms of land rights ("Peacebuilding in Afghanistan") [#16299],  [ID 808]

"In rural Afghanistan complex social relationships determine rights to land, and ownership and usage patterns can vary substantially from valley to valley. Many different forms of land rights exist, including:
- private ownership;
- state ownership;
- public ownership at the level of the nation;
- shared or common ownership at household, clan and community levels;
- usage rights as tenants, sharecroppers, and mortgagers; and
- access rights (permanent or seasonal) for pasture or collection, such as of fuel or the harvests of wild trees (pistachios, for example).

Because people often have multiple relationships to land – perhaps owning a small plot, having another that is mortgaged, and sharecropping on yet another – the nature of land relations is usually very complex and often inadequately understood by outsiders. Land disputes evolve over time and without due process can become part of the fuel that fans conflict, particularly where grievances are exploited for political/military ends."

Document(s): Open document

01.09.2003 - Source: UN High Commissioner for Refugees

Land related issues as one of the main problems that refugees and IDPs are facing upon return, what hampers their sustainable reintegration ("Land Issues Within the Repatriation Process of Afghan Refugees") [#47197],  [ID 809]

"UNHCR recognises that land related problems are often one of the most serious issues threatening the stability of Afghanistan, and that the reorganisation of the land tenure system in Afghanistan is a priority that merits the attention of the authorities, international community, and donor governments. It will thus continue to advocate, together with other UN agencies, for prioritising this issue on the national agenda, and for assisting the authorities in identifying the key problems and devising practical and effective solutions. UNHCR is fully aware that the solution for this problem will take several years at best, and that given the pressing needs of refugees and internally displaced persons wishing to return immediately, there is a need to devise ad hoc and local solutions to these intricate and delicate problems, without however creating facts on the ground that could be damaging to the overall land tenure issue in Afghanistan."

Document(s): Open document

01.09.2003 - Source: UN High Commissioner for Refugees

Improper land registration system ("Land Issues Within the Repatriation Process of Afghan Refugees") [#47197],  [ID 810]

"Several of these problems have been exacerbated by the improper land registration system. Land ownership records are held by the imlak, which has offices at the provincial level. In Faryab province, it was reported that some Pashtuns villagers who had fled the area during Rasul Pahlawan’s reign had sold their land to other villagers. The sale transfers was only written on a piece of white paper and was not officially registered with the district centre. They had returned and claimed that they had not sold their land or done so under duress. The Talibans had supported these Pashtuns in reclaiming their sold land to the detriment of the Arab buyers.
As a result, the identification of the real owners in a dispute is a major difficulty, which continues to be the main factor complicating the resolution of the dispute through the legal channel. In Imam Shahi district of Kunduz province, the land ownership is contested between a group of Turkmen pastoralists, who have been grazing animals in this area for many years and hold documents to that effect and a group of 230 Uzbek families, who also own documents that state that the contested land has been granted to them by the authorities around 20 years ago.
It is also been widely acknowledged, that during the several land registration exercises that took place nation-wide, many land owners did not reveal the real number of jeribs that they owned."

Document(s): Open document

01.08.2003 - Source: Afghanistan Research and Evaluation Unit

Analysis: no legislative provision for land ownership in the new constitution (land ownership today and suggestions for a chapter on land in the new constitution) ("Current Land Issues in Afghanistan (by Alden Wily)") [#17760],  [ID 811]

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Legal Framework for Landholding ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 812]

"Land rights in Afghanistan are governed by more than one legal regime, including customary law, civil law, Islamic law and state law. While important differences exist, there is also an unusual degree of commonality among these in their treatment of land rights.

Customary law (rawaj) This relates to how land is owned and transacted as established through community practice and adherence by members to group norms. Customary rules are rarely codified and appropriately change with time. Pashtunwali (Pashtun customary law) is one of the more elaborated operating laws, and dominates the norms in many areas. Shariat and custom often conjoin on land matters, except with respect to usury, women’s land rights and common property rights. The former is more liberal — and generally less adhered to because of this.

Civil law (qanoon madani) The Civil Code is a written expression of mainly Islamic law principles and includes more than 1,000 directives relating to property. The Code was compiled in the 1970s building in large part on historical treatments of the Hanafi school of Islamic jurisprudence.

Religious law (Shariat or Shar’ia) in its original rules as laid down in the Koran and expressed in many scholarly treatises, may considerable continuity in the land sector from the statutes of 1965 to those of 2000. No single body of land tenure law exists, but land is significantly addressed by a number of Taliban edicts of 1999 and 2000. These are the law in force at this time, as they do not contradict the (broad) terms of the 1964 Constitution.

Constitutional law The supreme law, which has consistently included a limited set of declamations on the right of the state to appropriate property, the protection of private rights, the right to travel and settle freely, the definition of government land and the rights of foreigners to own land. The modern
Afghan state has seen constitutional law promulgated in 1923, 1931, 1964, 1977, 1979, 1980, 1987 and 1990 (and a draft in 1992). The current constitution in force is that of 1964, which offers insufficient guidance on land rights. However, it is notable for its support against random foreclosure by creditors, a prominent concern of poorer rural Afghans, and a principle that does not seem to be widely applied."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

The Legal Framework for Landholding - Islamic and Civil Law ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 813]

"In practice, Shariat (of the Hanafi school) is largely embodied in civil law, or specifically, in the Civil Code. This is a volume comprising a series of books and chapters of selected Islamic jurisprudence compiled during the First Republic in the 1970s. It remains the main handbook of all courts (along with a similarly compiled Penal Code). The Civil Code is comprised of 2,416 articles. As many as 1,000 of these articles are directly relevant to land matters. These range from guidance on the handling of contracts and mortgages, to rights of possession, severing of joint rights, inheritance and procedures for purchase and sale. Leasing and renting is also addressed. In content, the provisions are largely common sense. Box 1 provides sample of these articles.

The Civil Code does not completely replace Shariat. Reference to original doctrines upon which the code was based is considered necessary from time to time. Much use of this was made by the Taliban, which often built state law directly from review of Shariat. The Civil Code rules, however, that religious jurisprudence may not be applied when the issue in question is covered in the Code. Only where there is no provision in the civil law, then "the court shall issue a verdict in accordance with the fundamental principles of Hanafi jurisprudence of Islamic Shariat to secure justice in the best possible way.""

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

The Legal Framework for Landholding - Customary Law ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 814]

"How far the Civil Code embraces customary law is moot. In many respects, Shariat and custom conjoin. In others, Shariat departs. This is the case for example with respect to Shariat rejection of usury (receiving interest on loans), with respect to women's land rights and norms relating to commonage — all areas where what is customary strongly dominates. The Civil Code itself provides for custom to be considered. "In regard to rights of possession and ownership and other objective rights, the law of the locality shall be applicable where the property is located..." [Article 26]. Defining the law of the locality is generally up to those affected, given that customary law as a whole remains unwritten and various in the fixity of its principles. Pashtunwali, or Pashtun customary law, tends to be precise and, to an extent, institutionalised."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Land classes ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 815]

"In terms of tenure, the land area of Afghanistan falls within one or other of these classes:

Government land (amlaki dawlati) The definition of government land has been altered by each regime and still lacks clarity. First defined in the 1965 Land Survey and Statistics Law as “land registered as belonging to the government,” this government land expanded to include wasteland, forests and then pastures through constitutional articles. These definitions were subsequently abandoned and the definition of government land is currently uncertain beyond those properties already registered and/or held as belonging to the state.
Public land (maraa) Land, under the control (not ownership) of the state, but held to be either owned by the nation as a whole, or by nature un-ownable (such as wasteland). However, the government has always acted as landlord and has, at times, made public land available for lease or sale. Maraa also includes land reserved for local community use. The lack of a clear boundary between national public land and local public land reflects weak tenure development and unresolved conflicts between state and customary notions of tenure.
Private land (amlaki shakhsi) Conceptually, private ownership is defined as individual ownership of discrete estates and therefore limited to farms, house plots, rather than group-owned property. In practice, a documented “individual” landholder often conceals shared ownership by a larger number of individuals — a family, clan or village. Conversely, rights to land owned by a family may be exercised by a single (male) head of household.
Communal land (mushtarak) Commons are non-farm properties including local open spaces, dry uplands, pasture and swamps, conventionally understood as owned by the community members jointly. In practice, khan families have superior rights. They are able to use these lands in ways that those without draught power for dry-land cultivation or livestock to pasture cannot. Disputes over commons are legion and growing, especially between seasonal pastoral and settled cultivator interests, both of which have different historical and customary claim.
Religious land (waqf) Held originally by religious institutions, much of this land is now under the control of the state as government land or public land, with the remainder held by local mosques for the common good. This land may not be bought or sold.

Distinctions among classes are uncertain, with overlapping interests between public and communal lands, private and communal lands, and government and public property. A main structural problem is the uneven acknowledgement of common rights in land as private property rights, a problem that encompasses competing interests over pasture."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Land Ownership - Characteristics ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 816]

"Data on rural land ownership is scanty, incomplete, out of date or structured in ways that are hard
to compare. With such limitations in mind, the following observations on land ownership can be
made:

While most of the rural population depends on arable agriculture, the amount of useable farmland is limited, comprising only 12 percent of the land area. Irrigated agriculture is extremely important to the rural economy, in the form of vineyards, and orchards and cereal farms. The greater productive area in the country is pastureland, which covers 45 percent of the total land area. This supports an immense livestock population owned by both settled farmers and semi-nomadic and nomadic populations. However, land tenure arrangements are least well developed in these areas and most subject to contention and even armed conflict.

Outright landlessness is a very real feature in Afghanistan. A significant body of people do not own farmland (the landless), or they own farms too small for survival (nearlandless), yet together they provide a highly significant part of production, as sharecroppers, workers or tenants. While it cannot be confirmed that landlessness or near landlessness is rising, the signs are that this is the case.

Though the range of holding sizes is narrower than many other states in the region, ownership is highly skewed. Minorities at the upper end have traditionally owned disproportionate areas of total land. One recent survey finds that 2.2 percent own 19 percent of the total land area in 2002.

Regional differences of land distribution are so strong that national farm size averages are meaningless. For example, while “most” own their land in the mountainous east and northeast, landlords, sharecroppers and labourers are most common in the southern fertile plains around Kandahar.

Land holding in Afghanistan is not a simple question of owning or not owning. The most striking aspect of rural Afghan tenure is the high degree of uncertainty in land ownership, primarily in the sharecropping sector and the closely intertwined element of land mortgaging. This involves a web of relationships in which it is difficult to distinguish creditors/debtors from owners/sharecroppers, or to know precisely who is the legal or accepted right-holder over the property."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Land Tenure Administration ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 817]

"An unusually strong history of land ownership recordation exists in Afghanistan, dating back to land grants issued in the 1880s with documents relating to land transfer in the customary, religious/civil and state law land management sectors. The form of documentation is relatively consistent. In addition, a national land registration programme conducted between 1965-1978, mapped and recorded 45 percent of arable farms into 5,502 registers. However, maintenance of these records has been limited.

No clear regime for managing land rights exists and by default many management functions have fallen to the courts, which also handle the bulk of land disputes. With instability and coercion by warlords over the last decade, land rights management and dispute resolution has lost credibility in many areas. Most rural Afghans regulate their land ownership relations customarily, without using officials or courts. Customary sector management offers a strong foundation, but is rife with practices that favour wealthier elites, men and dominant ethnic groups."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Acquisition and Transfer ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 818]

"Land is acquired predominately through inheritance. Land is also frequently gifted (mainly to heirs prior to the owner's death). Land purchase is fully permissible, provided for in customary, religious/civil and state law, and is widely practised. The urban market in land, such as in Kabul, is highly active, particularly at present with an influx of foreigners looking for properties to rent. Increases in property prices are steep, to the extent that officials have complained that ordinary urban dwellers are now unable to afford housing [see Appendix I]. There is also anecdotal evidence that peri-urban villagers are being offered incentives to sell for the construction of urban houses. It is unclear how far this activity is mirrored in farmland markets. The suggestion that the market is vibrant may be detected in the routine nature of land sales, complaints of high and still rising prices and corollary complaints of there not being any land to buy in rural areas. The fact that a main task of district and provincial judges is the endorsement of land sales and purchases, and that 56 percent of land disputes relate to sales and purchases, supports this impression (see Appendix E)."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Private Rights in Land ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 819]

"Notions of private property in Afghanistan follow the classical route of defining mainly individual owners of discrete estates in land. In practice, as observed earlier, the individual/individual name - such as a clan or family name — usually conceals either shared ownership by a larger number of individuals (e.g. family members), or layers of interest in the land, each carrying a different weight (e.g. the rights of a brother, son, wife or daughter). It may be more accurate in rural Afghanistan to refer to private land ownership as occurring at individual, joint, family, clan, village and group levels. Recording of ownership may have the same effect experienced elsewhere of endowing the recorded owner with a stronger right than really intended. How far this is the case is not known.
Customarily joint or shared ownership (mulk-ekhalisa) is widely acknowledged. Where the coowners constitute a whole clan or community, their property may be defined as communal land, though this appears not to have been developed in civil law. This may be because while the property may be used communally, the land is considered owned by one leading family or khan, in turn identified by the name of one man. While residents in the community may assume a right of access to those areas in principle, realising that access may require negotiation and/or payment of tribute in one or other form. This need increases as kinship becomes more remote. Families that are newcomers, unrelated to the core family, workers or client families appear unable to assume commonage rights."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Land Rights of Women are inferior ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 820]

"Women, as a whole, have inferior land rights. This is to such an extent that surveys in Afghanistan, unlike in most countries, rarely note the breakdown of landholding by gender (and nearly as rarely address the role of women in farm labour). In legal terms, constitutional and state law may be interpreted as permitting women to own land, and Shariat endorses this through its provisions for widows and daughters to inherit at least some share of land. Customary practice permits this to be realised mainly as an exception rather than as a rule. While ownership of land by widows does exist, daughters on the whole surrender their rights to their brothers, particularly when they marry. The objective is less to deprive a sister than to prevent land being lost to another family through her — a time-old concern of landpoor peasant farmers. In day-to-day life, one gender specialist argues, a rightful share to the product of labour is a good deal more important to rural Afghan women than owning the means of production itself. Certain provisions for this are allegedly also provided for in religious law. Religious law also disallows sale of houses or farms without the support of all adult members of the family.
Setting aside the evident subordination of even religious law to customary practice in this sphere, it is of note that at no time during the now long history of support for women's rights in Afghanistan, has women's land rights been a rallying point. This has been reserved, generally, for the promotion of female access to education and work opportunities, a development first officially actively pursued by King Amanullah and his wife, Queen Soraya in the 1920s, and variously taken up since by Prime Minister Daoud during the late 1950s and again with a vengeance by the communist government of 1978-1979.
In the interim, women are slowly beginning to more forcefully activate the rights they posses under religious law. Widows, in particular, are most likely to be at the forefront of this effort. They exist in very large numbers following years of conflict. Some have shown they are not content to accept landlessness. How far they will be supported remains to be seen. While female-headed households are not necessarily landless, this group represents another body of women learning to live independently. How far they will succeed in securing land also remains to be seen. Many such women now live in urban areas and their main concern is shelter, not farms."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Documents evidencing legal right of ownership as defined by State law ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 821]

"• Document in accordance with Shariat as issued by a court for the purchase, ownership, gift, distribution,
exchange of land, surrender letter, correction letter and the document of the final decision of a court
based on the issue of an ownership document;
• Purchase document, where the document has been issued by an authorised department and where the
land is registered with the tax department;
• Tax payment documents, where the land is recorded in the original book of registration and taxation;
• Water rights documents (haqaba), where there is no evidence against their legitimacy and where the
related land is registered in the book of ownership and taxation;
• Customary documents (urfee) prepared before the 15th of Asad 1354 [1975], where the buyer filled out
and filed a declaration form, which was witnessed by neighbouring landowners and submitted to the
concerned department before the year 1357 [1978];
• A declaration document will be accepted as valid where, 1) the documents have been destroyed; 2) there
is no dispute concerning the ownership of the land; and 3) the purchase and occupation of the land is
recognised as valid by the neighbours and the local land office;
• Statutory land documents (qabala Shariat) will be recognised where they have been prepared by the
appropriate court on completion of the legal registration process and where the ownership is reflected
in the Book of Ownership and Taxation;
• In order to make a document legal, it must be sent to the concerned authority after completing the
process and the document shown to be registered in the Book of Ownership and Taxation;
• There must be no contrary claim of ownership to the land; and
• A farmer who has no legal document for his land, and whose land is not registered in the ownership and
taxation book, may have a legitimate claim to the property recognised if, 1) no-one else claims the land;
2) there are signs of buildings and of farm activity by him; 3) neighbours testify that the land is his; and
3) local state authorities approve his occupation.
Source: Law on Land 2000 (Taliban)"

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Currently applied provisions ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 822]

"The context for this necessarily begins with the Bonn Agreement of 5 December 2001. This established that the overreaching framework for all matters, including those of property, would be the 1964 Constitution until such time as a new constitution is prepared (due by end 2003). At the same time, "existing laws and regulations are to apply," provided they are not inconsistent with the Bonn Agreement or the 1964 Constitution. The AIA was given the right to repeal or amend those laws and regulations. In February 2002 the AIA accordingly abolished all laws, decrees and private constitutions that were inconsistent with the 1964 Constitution. At the same time, it ordered each ministry to study legislation in its sphere that was in force prior to 21 December 2002, and to bring forward amendments or fresh legislation as needed in order to remove the above-mentioned inconsistencies. Therefore, unless repealed or amended, or obviously in contradiction to the 1964 Constitution, decrees in existence during the Taliban era still represent the applied law.

Constitutional positions
Current articles on property in the 1964 Constitution have been mentioned above (and are reproduced in Appendix G). Taken together these have the following implications:

• A person who has taken out a loan or who has mortgaged his land cannot have his land taken from him unless a specific law is made that allows this to happen [Article 26].
• No member of one ethnic group may be prevented from moving to or living within an
area of choice, provided this is done legally [Article 26].
• The state may not dispossess people of their land unless it is essential for a public purpose. In that event, the owner must be fully compensated for the loss, and paid prior to being evicted [Article 29].
• Nobody other than government may appropriate private land; warlords who do so are acting illegally [Article 28].
• There are no longer limitations on the amount of land any person or body may hold (ceilings)
- unless and until a special law provides for this [Article 29].
• Foreigners may not own land, but they may lease land from Afghan owners [Article 29].
• Courts are to deal with property disputes on the basis of statutory laws; only where no clear provision exists will the principles of Hanafi Jurisprudence of the Shariat of Islam be used to render a decision and even then, the decision must fall fully within the rights laid out in the Constitution [Article 102].

A commitment to restitution
Although of limited coverage, the above represent tangible policies. Already these have been ppended. First, in 2001and in accordance with international law, the AIA promised that "the recovery of movable and immovable properties such as land, houses, markets, shops, apartments etc. will be effected through relevant legal organs." Furthermore, it committed to work with UNHCR on the monitoring of this commitment [Articles 5 & 8 of Decree on the Dignified Return of Refugees 2001]."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Examples of Land Loss ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 823]

"• Landlessness in Bamyan is severe "due to occupation of Tajik homes and land by military personnel."
• Around 50 percent of people are landless in Sholgara in Balkh, "where the Pashtun minority has farms
of 300-500 jeribs."
• 1,000 Pashtun families have been expelled from five areas of Farkhar and are now landless.
• Pashtun living in Kunduz have also been targeted by Uzbek authorities and find their farms occupied
by warlords; "The Governor of Kunduz is said to occupy 1,700 jeribs of land belonging to refugees."
• In Iman Sahib, Uzbek returnees are being prevented from living there by current Turkmen residents;
"One commander is reported to have taken all livestock and all land in his area."
• There are reports in Moqur in Ghazni of forced occupation of land by local commanders; "One commander
has sent his men out to capture land for his own use."
• In Besud, 8 jeribs of land have been occupied by a commander, who sold the land then disappeared.
So the returnee has found an occupant who holds a court certificate of payment.
• A widow in Kunduz reports that her husband's family will not release any share of his land to her.
Source: District Profiles UNHCR 2002c."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

The Current Legal Basis for Retrieving Rural Land ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 824]

"• If the land has not been distributed to a new owner and there is valid documentation then the land
will be returned to the claimant or to his children.
• If the land was distributed (under the land reforms), then the current occupant will pay the owner for
the land at present-day values. If they can't agree on a price, the owner may reclaim the land and may
also claim "all the lost harvests" from the occupant.
• If the land has been distributed to the government, it does not have to return the land to the owner,
but will pay the farmer at present day values, and in one instalment.
• If the land was distributed to a person who has subsequently sold the land to another, then the current
owner may claim costs from the person who sold him the land, when returning the land to the original
owners.
• If the boundaries of the property have been altered (reduced), then the occupant must compensate
the owner for the land area that has been lost.
• Owners and occupants are to agree on the value of buildings constructed since the owner lost the
property and to come to an arrangement to repay the costs to the occupant who constructed the
buildings or improvements; and
• No claims for degradation to the land may be sought.
Source: Chapter Four of Law on Land 2000."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Restoring government property ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 825]

"Another new law decreed by the Afghan government was to halt the distribution of government property in municipal and rural areas [Decree No. 99 of 4.2.1381 (2002)]. This reflects a government objective of re-securing government property, an effort that has spearheaded what limited policy evolution/legal regulation has been undertaken, other than the above-mentioned court. Nonetheless, in practice, warlords are still visibly distributing land to their followers, often using unutilised government lands for the purpose.

One documented case relates to the distribution of land in peri-urban areas around Kabul, for which loyal soldiers of the United Front may apply on payment of around US $350 into a private account. One receipt seen by the author was number 1,223. UNHCR has reported cases in the eastern region, among others, of warlords planning urban developments on periurban, rural lands that are then handed over to supporters. Warlords are allegedly encouraged in these developments by one or other supporting members of cabinet."

Document(s): Open document

03.2003 - Source: Afghanistan Research and Evaluation Unit

Note on Land Tenure Issues in Kabul City ("Land Rights in Crisis: Restoring Tenure Security in Afghanistan (by Liz Alden Wily)") [#13567],  [ID 826]

"A Master Plan was developed for Kabul city in 1974. The Master Plan allocated 16,830 ha. of the total area (32,400 ha.) area for housing. Implementation of its centrepiece, the demarcation of around 100,000 plots to provide for construction of 600,000 apartments, began in 1978. Less than 3,000 apartments were built, mainly during 1979-1989. Nonetheless, 70 percent of applicants at the time did receive housing or more often, plots on which to construct houses, on a payment by instalment basis. Plots of around 8,000 ha. were distributed. From 1990, the capacity of the municipality to provide housing, water, sewerage, electricity, roads and public amenities fell to almost zero and self-help construction flourished. Rarely did these houses meet the specifications of the Master Plan. Nor were occupation/ construction undertaken through legal means. Many of these houses are of unstable construction or fall within the designated green belts and hilly areas of the city. Around 6,000 houses fall within this category; either being illegally sited, illegally constructed and/or occupied.
In addition, many of these occupants have purchased these apartments or houses on the basis of fake documentation. In addition, an estimated 600 older private properties have been wrongfully given to and/or inhabited by especially Taliban and post-Taliban commanders, some as recently as one year ago. During the communist period, compensation was generally paid when authorities took private property although at less than open market rates. When mujaheddin or Taliban leaders appropriated property they rarely paid compensation although sometimes this was planned but not executed before the authorities lost power.
The municipality is dealing with these problems through, first, the creation of a joint commission to address claims for restitution of housing on a case-by-case basis. This commission comprises representatives from the municipality, the office of the Kabul governor, the Ministry of Justice, the Primary Court of Kabul and the criminal department of the Ministry of Interior, and is located in the Police Department of the Municipality. It is not a full-time commission. On investigation, the rightful owner of the property is identified and the land handed back to that owner, his children or representative. Often the rightful owner is still the municipality. Current occupants including those who occupied, bought or been sold properties under illegal circumstances will be evicted but may apply for allocation of other housing. Appeal to the Kabul Primary Court may also be made when agreement cannot be reached.
Second, rather than destroying the houses of those who have constructed homes in unscheduled areas of the city or on land which has not formally been sold to them, the municipality plans to relaunch low-cost housing construction on the remaining 1,000 ha. of total housing land (16,830 ha.) available within the city limits and to expand the city limits towards the north (Shomali). The municipality also proposes to purchase some of the private one-storey houses within the 6,000 ha. private housing areas and construct high-rise apartments. It estimates that around 250,000 apartments are currently needed. Those living in unstable or poorly sited areas such as on the hillside greenbelts with receive first offer of housing, which they may purchase at subsidized rates and on payment by instalment. Their houses will then be destroyed, following payment of compensation where the construction was undertaken with official approval and/or on documented payment. To pay for new housing and related road and other service developments, the municipality proposes to invite foreign investors to undertaken building on a commercial basis, alongside provision of low-cost housing schemes suitable for those with less means. However no donor and no investor have yet been forthcoming. Meanwhile, according to the deputy mayor in charge of properties on the Kabul City Council, "Kabul fills weekly with more returnees looking for housing or finding their own homes destroyed or occupied and without the means to build their own houses." The invasion of foreign personnel has inflated prices to levels that are unaffordable to Afghans. Officials in the Mayor's office are grateful for the assistance being provided by the German government in urban water, street lighting and road development but resent the high proportion of foreign money being used to support the internal community instead of Afghans struggling to find a permanent home in their city. "We have seen this before. An invading group comes in claiming to be our saviours, then before long we see they are just helping themselves. The question is how long it will take the people to become angry all over again," the deputy mayor said.
Source: Discussion with Sayed Noor Aga Hedayati, Deputy Mayor for Kabul City for Properties"

Document(s): Open document