2015年-世界发展银行全球_Land_Governance_Assessment_Framework___Afghanistan_238页_2mb

Land Governance Assessment Framework (LGAF) - Afghanistan Final Report (December 2015)

Core Content

The Land Governance Assessment Framework (LGAF) is a diagnostic tool developed by the World Bank in collaboration with several international organizations, including FAO, IFAD, and UN Habitat. It was designed to evaluate the status of land governance at the national level using a participatory approach that relies on existing evidence and local expertise. The LGAF framework focuses on nine key areas of land governance, which are assessed through a set of indicators and dimensions. In Afghanistan, the implementation of LGAF involved expert panels, synthesis reports, and validation workshops to ensure the findings were grounded in local realities and international best practices.

Legal Framework

The Afghan Constitution of 2004 provides a legal basis for property rights, ensuring individuals can own and acquire property unless prohibited by law. Private property can only be confiscated by legal order. However, the legal framework for land governance remains incoherent and often ill-suited to the country's reality. Over 30 laws and decrees govern land tenure, including the Civil Code, Presidential Decrees, and the Land Management Law (LML) of 2008. The LML is considered the most comprehensive, but it is still under revision. Notably, the National Land Policy (NLP) of 2007, which incorporates international best practices, has not been fully operationalized due to the absence of subsequent laws integrating its provisions.

Land Tenure System and Typology

Afghanistan's land tenure system is complex and fragmented, with a lack of clarity in the legal definitions and responsibilities of public, private, and state land. The system includes:

• Private land: Legally recognized through formal or customary documentation. However, the majority of properties lack formal documentation, and the legal framework does not adequately protect undocumented rights.
• Public land: Not clearly defined in Afghan law, often considered state property, and is not registered, leading to easy reassignment to private parties.
• State land: Includes forests, protected land, and arid/virgin land. It is typically managed by governmental institutions and ARAZI, with limited transferability.

There is a significant discrepancy between the legal framework and the customary land practices, especially in rural areas. Customary tenure rights are not fully recognized in law, leading to many lands being de facto state-owned.

Key Findings

Land Rights Recognition

• Legal recognition of rights: The legal framework recognizes a continuum of rights, but in practice, only formal documentation is considered valid.
• Customary rights: Customary tenure rights are not fully recognized in law, particularly those established after August 1975.
• Women's rights: Women's property rights are not adequately recorded or recognized as equal to those of men.
• Land registration: Less than 35% of land in the country is formally registered, with the last cadastral survey dating back to the 1970s.
• Land grabbing: Over 1.2 million jeribs of land have been reported as being usurped over the past decade, with no adequate legal response to this issue.

Rural Land Use and Forest Rights

• Forest and common land: The legal identification and assignment of responsibility for forests and common lands is unclear.
• Group rights: Rural group rights are not formally recognized or enforceable.
• Natural resources: Users' rights to natural resources such as fisheries are not clearly defined or protected.
• Coexistence of rights: Multiple rights over common land and its resources can coexist, but this is not consistently reflected in legal practice.
• Boundary demarcation: There is a lack of clear boundary demarcation for communal land.

Key Challenges

• Incoherent legal framework: Land laws often contradict each other, especially regarding the classification of state, public, and private land.
• Low registration and formalization: Only a small percentage of land is formally registered or mapped, limiting the recognition of land rights.
• Corruption and administrative complexity: These factors deter land registration and formalization.
• Land grabbing: Widespread and not adequately addressed by current laws.
• Lack of awareness: Public and security forces have limited understanding of land rights and governance issues.

Policy Recommendations

• Amend the LML: Reduce the minimum requirements for continued ownership and cultivation to formally recognize long-term unchallenged possession.
• Formally recognize customary deeds: Extend recognition to those prepared after August 1975, provided they meet other criteria.
• Enhance public awareness: Support NGOs in educating citizens on what constitutes a valid customary deed.
• Establish a centralized land registration system: Develop a one-stop-shop system at ARAZI, gradually computerized.
• Implement community-based land recording: As an interim measure, develop a system that can later be integrated with ARAZI's formal registration.
• Include land governance in training: Incorporate land governance topics into the training curricula for the Afghan National Police and Army.
• Materialize ARAZI's demarcation project: Conduct a nationwide land demarcation and restart the land clearance process.
• Include judges in land clearance teams: To resolve disputes, judges should be part of the Tasfia delegation.
• Forward disputed land ownership to courts: In complex cases, the Tasfia report should indicate disputed ownership and refer the matter to courts.
• Allocate financial resources: Ensure sufficient funding is available for these initiatives from the national budget.
• Seek international and civil society support: For both financial and technical assistance in implementing land governance reforms.
• Incorporate land usurpation into the Criminal Code: Work with relevant authorities to operationalize this provision.
• Support the Restitution Policy: Approve and promote the draft policy on land grabbing.
• Establish a special police force: To investigate and prevent land grabbing.

Conclusion and Next Steps

The LGAF highlights the critical need for reform in Afghanistan's land governance system. The current legal and institutional framework is inadequate to address the realities of land tenure and usage. The report recommends a series of policy actions, including legal amendments, enhanced registration systems, and increased awareness and capacity-building. These steps are essential to ensure effective land governance, protect land rights, and promote sustainable development.

The next steps include the implementation of these recommendations, with a focus on legal reforms, institutional strengthening, and public engagement. The report serves as a foundation for a cross-sectoral dialogue on land governance in Afghanistan, aiming to improve the legal and administrative mechanisms that govern land.