AFGHANISTAN RECONSTRUCTION TRUST FUND This paper examines how far Afghanistan’s Land Acquisition Law (LAL) complies with standards required for World Bank financing of public interest projects that unavoidably extinguish or diminish existing land rights in the project area. For this purpose, the law was compared with standards laid down in World Bank Environmental and Social Standard 5 (ESS5) on Involuntary Settlement. Additional reference was made to ESS1 on social risk and impact assessment, and to ESS7, in regard to communities whose socio-culture and livelihoods rely distinctively and historically upon collectively based tenure or land use. The overall conclusion is that LAL 2017, necessarily read with the Land Management Law (LML) 2017, provides a positive starting point for the World Bank and government parties to work toward a fair remedy in relevant projects. These range from obligation to pay compensation to affected persons prior to compulsory vacation of properties, transparent stipulation as to how residential, farm, and business premises and structures will be compensated, to providing assisted relocation where whole communities are affected. COMPULSORY LAND ACQUISITION IN Afghanistan COMPULSORY LAND ACQUISITION IN Afghanistan Does the Law Meet World Bank Standards on Involuntary Resettlement? NOVEMBER 2020 Acknowledgement Acknowledgement Qais Aga for his regular feedback. The output was finalized by the task team leaders through a process of critical guidance by member of the team. We are grateful to Kevin A. Tomlinson, Practice Manager, Social South Asia Region-2, David Seth Warren, Practice Manager, Social Africa-3, and Janmejay Singh, Practice Manager, Social East- Asia-2, World Bank, for their continuous support on this task. Special thanks to Jane Olga Ebinger, Program Leader, World Bank and Yasuhiko Matsuda, Program Leader, World Bank for extending the resources T he World Bank’s Environmental and Social Framework (ESF), 2017, aims to better manage environmental and social risks in projects and improve development outcomes. The ESF, therefore, provides the framework for under the Afghanistan Anti-Corruption and Results Monitoring Action Program (ACReMAP) for Strengthening Safeguards Management. The team is grateful for all the administrative assistance and support provided the concept and design of this study. The comparative analysis of country by Zahra Sultani, Program Assistant, World Bank. framework with the World Bank Environment and Social Standards 1, 5, and 7 were considered. It focused on identifying gaps between the country’s legal framework (laws and practices) covering compulsory acquisition and provision of resettlement measures. Rights and Permissions The study was conceptualized by the Task Team Leaders Mohammad Yasin This document does not reflect the views of The World Bank and the contents Noori, Senior Social Development Specialist, World Bank and Mridula Singh, thereof do not reflect the views of the World Bank, its Board of Executive Senior Social Development Specialist, World Bank. Directors, or the governments they represent. This work does not necessarily reflect the views of, and nor are the findings binding on the Government of the We extend the gratitude to Susan Wong, Josefo Tuyor, Roxanne Hakim, and Islamic Republic of Afghanistan. The World Bank encourages dissemination Shankar Narayanan for thorough review of the documents and providing of its knowledge. This work may be reproduced, in whole or in part, for non- valuable comments that helped to enrich the reports. commercial purposes as long as full attribution to this work is given. Any references to the document must be acknowledged. The research was carried out by Elizabeth Alden Wiley, Consultant, who was also responsible for preparing the draft report. The team extends its gratitude   to the TLO Consulting firm led by Pranavakshar Kapur to shape the comparative analysis from a legal perspective. The Advisory Group representing different For any queries, please contact ministries of the Government of Afghanistan was set up to receive continuous Mohammad Yasin Noori, Senior Social Development Specialist feedback which was extremely valuable to enrich the study. (mnoori@worldbank.org) The team is thankful to Afghanistan’s social development team, specifically to Zahra Sultani Program Assistant Matiullah Kazmi, for his valuable contribution through review of the study and (zsultani@worldbank.org) 2 3 Table of Abbreviations Contents Term Meaning Summary 5 ACReMAP Afghanistan Anti-Corruption and Results Monitoring Action Program 1. Introduction 8 ALASP Afghanistan Land Administration System Project AREU Afghanistan Research and Evaluation Unit 2. The Legal Context 10 onstitution 2004 2.1 C 10 ESIA Environmental and Social Impact Assessment 2.2 Land Management Law 2017 10 ESCP Environmental and Social Commitment Plan 2.3 The Registration of Urban Informal Properties 2017 11 2.4 The Law and Public Policy 12 ESS Environmental and Social Standard ESF Environmental and Social Framework Comparision Of Land Acquisition Law And Ess5 14 3. bjectives 3.1 O 14 IDPs Internally Displaced Persons cope of Application 3.2 S 15 IPs Indigenous Peoples 3.3 Requirement - General 16 3.4 Displacement 28 LAL Land Acquisition Law 3.5 Loss of Rights and Resources by Local Communities 31 LML Land Management Law 4. Conclusions 33 OP Operational Policy 4.1 Compliant Attributes of LAL with ESS5 33 MUDL Ministry of Urban Development and Land 4.2 Partially Compliant Attributes of LAL with ESS5 34 4.3 Limited or No Compliance of LAL with ESS5 35 TLO The Liaison Office 4.4 General Conclusions 37 WB World Bank 4 Table of Contents eneral Recommendations 41 5. G 6. D ocuments Reviewed 43 Summary Annex 1: Contents Of Op 4.12 And Ess5 44 Annex 2: Old And New Objectives Of World Bank Standards On Involuntary Resettlement 45 Annex 3: Review Of The Lml As Relevant To Compulsory Land Acquisition 46 T Annex 4: Policy Statements In Af National Land Policy 2018 his paper examines how far Afghanistan’s Land Acquisition Law (LAL) complies Directly Relevant To Compulsory Acquisition 55 with standards required for World Bank financing of public interest projects Annex 5: Compliance Of The Lal With Social Requirements that unavoidably extinguish or diminish existing land rights in the project area. Under Ess1 On Social Risks And Impacts 60 For this purpose, the law was compared with standards laid down in World Annex 6: The Land Acquisition Law And World Bank Ess7 On Bank Environmental and Social Standard 5 (ESS5) on Involuntary Settlement. Indigenous Peoples 62 Additional reference was made to ESS1 on social risk and impact assessment, Comparison Table Of Ess5 And National Laws 65 and to ESS7, in regard to communities whose socio-culture and livelihoods rely distinctively and historically upon collectively based tenure or land use. The overall conclusion is that LAL 2017, necessarily read with the Land Management Law (LML) 2017, provides a positive starting point for the World Bank and government parties to work toward a fair remedy in relevant projects. These range from obligation to pay compensation to affected persons prior to compulsory vacation of properties, transparent stipulation as to how residential, farm, and business premises and structures will be compensated, to providing assisted relocation where whole communities are affected. Gaps and limitations exist. Many may be overcome with clarification and elaboration in regulations under the law. Examples of procedural deficiencies include absent legal stipulation on how affected citizens must be consulted, including women, matters that must by law be investigated and reported in assessments, and benchmarks for monitoring and stipulation on how shortfalls will be acted upon. There are implied overlaps in responsibilities of municipal authorities as both acquiring and implementing authorities, which can be easily removed. 7 Summary Summary There are also gaps in the adjudicatory elements of survey and clearance with  bsent provisions that require projects to explore and deliver a minimum • A regard to full inclusion of all those affected. Although such matters fall under number of opportunities through which those affected may improve the aegis of the sister LML, also recently reissued, loopholes in that law will their pre-project conditions. limit achievement of the objective of the LAL to “increase the positive impact oo limited legal commitment to resettlement: This applies only where • T of expropriation on people” (Article 1). The most important are potential whole communities are affected and by ‘major’ projects. There is also a overreliance on maps drawn up in the 1960s, at which time massive areas reiterated implication in the law that only residential plots will be provided were identified as state property by virtue of not being cultivated, even if they to the resettled, without commitment to provide basic supporting facilities were visibly customarily owned and used, and had an unusually long timeline or plan schemes with existing access to facilities. This has however been for adverse possession which threatens to jeopardize many rights. committed in another law which addresses the rights of internally displaced Some opacity derives from insufficient distinction between projects affecting persons (IDPs), returnees, and families of those killed in military service to persons in urban domains and rural domains. Issues which this review resettlement. It is unclear why those involuntarily resettled should not be concludes may be relatively easily overcome through such critique are listed similarly assisted. under Conclusions.  pallid approach to engagement of persons affected in the project • A Some other shortfalls in the LAL present more serious challenges for the area: Consultation is obligatory and helpful participation guaranteed in Government of the Islamic Republic of Afghanistan to meet the social standards the form of requiring representation of affected persons on settlement set in World Bank Frameworks. These are also listed under Conclusions. In planning and review committees, although a token number. Transition general, they include the following: into a participatory mode generally is not evident. While a negotiated and consensual approach (leading to de facto consent) is strictly only required  n unconvincing framework that will enable project-affected persons to • A in the World Bank standards in relation to those identifiable as Indigenous recover pre-project conditions and livelihood: This is a minimal requirement Peoples (IPs), requirement for a legally entrenched process of participatory of the World Bank standards. Shortfalls derive from: engagement is recognized in the World Bank guidelines as beneficial in all • T  he implication that compensation will cover limited assets (buildings, expropriation events. residential and farmlands, business premises and certain lost business  problematic approach to classification of lands associated along with a too • A profits). Other critical losses such as shared service areas, water provision, narrow provision for forms of registrable ownership. The LAL is constrained and other assets developed by the community as a whole are not listed by the LML. It is unacceptable by World Bank standards to ignore the reality or valued as to be replaced; that many rural communities customarily own varying extents of shared off- • A  n absence of legally required objectives or measures to ensure that farm grazing (and some wooded lands) or to fail to provide for registrable living conditions and livelihoods can be genuinely restored to pre- collective entitlement as a lawful form of landownership. The absence of project conditions; and both means that customarily owned grazing lands are automatically held to be national property. This relieves the LAL of the need to compensate their loss to communities or to replace these lands with equivalent areas to those who benefit from relocation, or to identify and replace seasonal 8 9 Summary Chapter 01   dependence by nomadic groups on some of these lands. Noticeably the law makes no commitment to replace lost grazing lands or similar natural Introduction resources, even in resettlement schemes. This may prove unjust in light of the role which access to community-owned grazing areas (customarily) plays in most rural livelihoods, including the use of the nearest drylands for cultivation in good years, the naturally communal nature of grazing lands historically belonging distinctly to each rural community, and the critical role which stock-raising plays in rural livelihood and living conditions.  his review recognizes that the issue of grazing landownership has long • T been contested and that legal positions have their origins in the Civil Code, 1.1 Terms of Reference which in turn relies in part upon interpretations of Islamic law as originally expressed in the Civil Code of the Ottoman Empire. The terms of reference of this assignment are to provide a comparative analysis of the Land Acquisition Law (LAL) 2017 in Afghanistan with: t is recommended that deeper understanding is required. These include: • I (a) researching the arrangements that other Sharia jurisdictions have made • World Bank Operational Policy 4.12 on Involuntary Resettlement to overcome this constraint, (b) providing evidence of the globally felt need •  orld Bank Environmental and Social Standard 5 (ESS5) on Land W to provide for registrable collective tenure to secure collective lands of Acquisition, Restrictions on Land Use, and Involuntary Resettlement. communities, and (c) providing evidence of success in community-owner resource conservation. 1.2 LAL 2017 LAL 2017 has its origins in a law of 1935. In that law, takings required local approval. Payment of compensation for the value of the land and for improvements to the land were to be agreed before a judge. Amendments or new versions of the law from the 1960s until the 1990s added to the list of public purposes, including for redistributive farmland reform. For that purpose, compensation to large landlords was not initially payable above a ceiling but was later introduced to cover the value of improvements to the land. While retaining this, the Taliban regime in 2000 included a provision that gardens, farms, and vineyards could be compulsorily acquired only to establish national forests and dams. President Karzai issued amendments in 2005 and 2009. These and the Taliban law are now repealed by the 2017 law. 10 11 Chapter 01 - Introduction Chapter 01 - Introduction There has been an intention to revise or repeal the Land Expropriation Law of timely compensation for loss of assets at replacement values is also brought 2000 since 2009, drafts were issued in 2011, 2013, and 2016. The present law to the fore as an objective. ESS5 also introduced more attention to gender retains substantial tracts from laws going back to the 1960s. New provisions dimensions and indigenous peoples (IPs), the latter elaborated in ESS7. exist, such as providing for resettlement of evicted communities (2013), laying Additionally, ESS5 extends the scope of the standards to include areas out routes for hearing grievances, and strengthened requirements for informing where restrictions on customary land use and access to natural resources affected persons of the intended taking of their lands. The increase in projects by communities occur, where they have traditional or customary tenure, or recognizable use rights such as those affecting protected areas, forests, or requiring access to large areas of land such as for mining or infrastructure have biodiversity areas related to the project. This scope extension is pertinent played a main role in this, as has the attention to land and its acquisition by as analysis will later show that this remains one of the weakest elements in certain donors and lenders, including the Asian Development Bank and the Afghanistan’s LAL. World Bank. There has also been considerable support for the development A structural change also requires borrowers to distinguish remedies for physical of the Afghanistan Land Authority over the past decade, as it geared up to and economic displacement. Annex 1 compares the subjects and objectives become an independent authority (ARAZI). This path of autonomy was recently of OP 4.12 and ESS5. aborted, ARAZI is now merged with the Ministry of Urban Affairs as a new Borrowers are reminded that ESS5 does not apply to provision of lands and Ministry of Urban Development and Land (MUDL). housing for internally displaced persons (IDPs) and returning refugees, or for those displaced by natural disasters, conflict, crime, or violence (para 9). These are accordingly not covered in this review. It may be noted nevertheless that 1.3 World Bank OP 4.12 and ESS5 both areas are well covered by the LAL. Displacement due to natural disasters, such as through avalanches destroying villages and farms, are real and recurrent in Afghanistan and well addressed in Articles 16 and 30. Afghanistan has also World Bank OP 4.12 and ESS5 are policy guidelines and standards for borrowers legally provided for displaced persons and refugees since the 1980s, presently to which World Bank lending must adhere for projects which cannot avoid in the form of Presidential Decree 305 of 2018 on Identification and Allocation displacing people. Important aspects are obligatory compensation and assisted of Suitable Land for the Reintegration and Construction of Affordable Housing resettlement in many circumstances. OP 4.12 was established in 2001, revised for Returnees, Internally Displaced Persons and Families of Martyrs of the in 2013. It applies only to World Bank-funded projects agreed before 2018, to Country’s Security and Defense Forces. This law is relevant to the extent that be replaced entirely by ESS5 (2017) for all other projects. Operational Policy expropriation projects are likely to involve such persons in both rural and urban 4.12 of 2013 and ESS5 of 2017 are similar. ESS5 adds detail and expands areas areas, and through this Declaration they are eligible for particular resettlement requiring attention by borrowers. A detailed Guidance Note for Borrowers is rights. provided, covering all 10 frameworks (June 2018). In regard to ESS5, as compared to the earlier OP 4.12, there is stronger emphasis on avoiding forced evictions and on engagement with project-affected persons. 1.4 Indigenous Peoples and ESS7 There is more attention to community-wide issues alongside individual/ family requirements, including material loss of communal lands, and social While ESS5 does not require reference to ESS7 on IPs, this is logical where concern to limit needless fragmentation of communities through dispersal or such groups live within or use lands affected by projects, whether they define relocation including loss of existing socioeconomic support systems. Payment themselves as IP or not. This is relevant to Afghanistan where some socio- culturally distinctive communities hold strong collective attachment to 12 13 Chapter 01 - Introduction Chapter 01 - Introduction Chapter 02 distinct territories, or in the case of pastoral nomads, also strong seasonal use rights to pastures in other parts of the country. Although customary rights The Legal Context are covered in ESS5, ESS7 is more precise on World Bank expectations to acknowledge, investigate, and protect the interests of IPs at compulsory acquisition. 1.5 Social Risks and Impacts and ESS1 This is similarly the case in respect of how comprehensively the Afghan acquisition law provides for analysis and planning in relation to social risks and W ho is compensated and/or resettled when their lands are lawfully taken from them is shaped by the state’s perception of what constitutes property in land, and the nature of rights to land held by its citizens. The Civil impacts generally. ESS1 is therefore briefly reviewed to aid assessment of how Code and especially the LML establish the parameters in Afghanistan. The far these matters are covered in the Afghan law. supreme law also establishes some broad parameters. 2.1 Constitution 2004 The Constitution vests only minerals and other subterranean resources in the state (Article 9). It empowers the state (government) with regulatory powers over the protection, management, and use of all lands (Article 9), which shall be regulated by law. The Constitution requires that forests and the environment are safeguarded (Article 15). It also commits the state to adopt necessary measures for housing and distribution of lands to deserving citizens in accordance with its financial resources and the law (Article 14). Like those before it, the Constitution establishes that compensation must be paid prior to taking of lands for public purposes, and must be just (Article 40). It encourages and protects private capital investments and enterprises based on the market economy (Article 10). 2.2 Land Management Law 2017 This law is important to compulsory acquisition in these respects: The LML lays the ground as to what constitutes private properties or •  14 15 Chapter 02 -The Legal Context Chapter 02 -The Legal Context rights in land, which in turn determines who comprise affected persons, among family members in relation to permanently farmed lands, these and their eligibility for compensation; and will be individualized at registration (Articles 48). This may also include • The LML lays out the procedure for identifying the above through unirrigated lands next to settlements which are allocated to families combined survey and adjudication broadly termed clearance or Tasfiya. in years when rainfall is good for cultivation, but otherwise used for This is to be conducted before land can be expropriated (Article 39 grazing. (1)). The LML integrates a distinctly administered survey and adjudication •   Annex 3 provides an analysis of provisions of the LML with these matters in into a two-stage procedure under MUDL, to be exercised by a cadaster mind. In summary, these conclusions are noted here. team and a land clearance delegation in the area on the same day The LML provides for endowed (religious), private, state, and public •  (Article 39 (4)). The cooperation of owners and local councils is required lands. Most of the country area is state land by virtue of being so (Article 28). Provision for conflict resolution is ample beginning with defined in the past, or public land by virtue of being grazing lands. informal forums (Article 32). State land is vested directly in the government. Public land is deemed The LML lists 11 documents which may be lawfully used to testify •  unowned and unownable, controlled, allocated, and managed by the to private ownership, from evidence of tax payment for the land to government. It is subclassified as general grazing land available to a customarily signed deed of transfer (Article 18). All must refer to all and special grazing lands to be allocated to villages for their use. residential or farmed lands. It is stipulated that even where uncultivated Traditionally shared service areas within settlements are also described lands are claimed by individuals, if past maps show these as state land, as public property. the map is to be upheld (Article 18 (8)). Despite policy directives in 2011 and 2017 (National Land Policy), •  Provision is made for those with no documents to be eligible for •  the LML fails to recognize or provide a title construct for collective registered entitlement (Article 19) and again must refer to land on ownership by communities. This is a characteristic customary norm which construction or cultivation has been undertaken (Article 19 (3)). in Afghanistan in respect of grazing lands historically possessed by The owners of adjacent parcels must testify that the occupant has lived specific communities. These exist in the transhumant regime as first, on the land since 1963 (Article 19(4)). immediately adjacent pastures to settlements and second, in shared pastures co-owned by a number of villages, which are a little distant and occupied and used in summer. These rangelands exclude the 2.3 The Registration of Urban Informal Properties 2017 much larger and remote pastures which are primarily used by nomadic pastoralists and not claimed as the property of any one community or Occupation of state and public lands within and around municipalities clan cluster. Only those pastures immediately adjacent to settlements present a challenge, given that most urban population growth is through are designated as special grazing lands by the LML. The remaining informal settlement by displaced persons, returning refugees, displaced pastures are classified as public grazing land. persons including nomads, and the very poor, and two-thirds of whom hold no occupation rights. Defining what is state land within and immediately • Reduction in collective landownership and use patterns is more broadly adjacent to expanded municipality areas is complex, exacerbated by evident in the LML. The law declares that where collective tenure exists the practice of authorities selling such areas to settlers with means or to 16 17 Chapter 02 -The Legal Context Chapter 02 -The Legal Context construction companies. Significant land grabbing has occurred, which the lists relevant requirements including 10 directives specifically applicable LML now describes as a criminal act with harsh penalties. to expropriation (Annex 4). Table 1 provides an overview of how far the This regulation under Article 112 of the LML provides for regularization of LAL meets these. It fully meets five directives, falls short in a limited way occupation of people living in unplanned settlements in cities and towns, in another, and falls significantly short in respect of four other directives. through issue of a Certificate of Occupancy for strictly residential purposes. These shortfalls stem in three cases from failure of the LAL to acknowledge Up to 300 m2 will be allocated to the occupant where the land is state land, customary property rights to other than house and farmlands or to and the occupant has the right to purchase another 200 m2 if the area is compensate or replace loss of established customary rights including rights not needed by government. This provision does not appear in the LML in of benefit and use to state and especially public (grazing) lands. However, relation to long-standing rural occupants on state lands (or public lands). primary responsibility for this lies not in the LAL but in the LML as discussed Another positive innovation is that the Certificates of Occupancy will list the earlier. Less severe challenges for the LAL to meet policy directives are to names of spouses who shall co-own the right of possession (Article 9 (7)). clarify limitations in ensuring accountability of its terms. This does not appear in the LML, so presumably will only apply in urban Table 1: Policy Directives and Legal Achievement in LAL 2017 regularization projects. National Land Policy Directives Does LAL 2017 achieve these? 2.3.1 Decree on Identification and Allocation of Suitable Land for the 2017 (Policy Statements 5.5 (b), Re-integration and Construction of Affordable Housing for Returnees, 5.6, and 5.7) Internally Displaced Persons and Families of Martyrs of the Country’s Constitutional guarantees for security of 1.  POSITIVE WITH RESERVATIONS: The LAL Security and Defense Forces (2018) tenure shall be observed. In the interest structures takings in such a manner that of equity and justice, no one may be arbitrariness or force should be lessened, such This decree aims to provide living spaces for these groups, many of whom deprived of property rights except in as by providing for right of appeal, at least in accordance with the law, and no law may respect of the value of compensation offered. are in urban areas. Those allocated plots and who construct homes on permit arbitrary and forcible deprivation of With regard to equity and justice, inclusion of plots will be issued title deeds (Article 13). Returnees, IDPs, and so on, thus property rights. those who hold only customary documentation is positive, as is attention to those with no have an advantage over long-term residents on state lands who may never documentation but who can demonstrate acquire titles. Important criteria are stated for identifying lands for settlement long residence. However, through confirmed nationalization of public grazing lands which do not appear in the LML or LAL but which will perhaps be borrowed by the LML, the LAL cannot identify and in practice. These include proximity to services and work opportunities and compensate communities for loss of private grazing lands (under customary law) although with existing or planned water supply (Article 9). those which are immediately adjacent to the settlement may be allocated to the community for its use. Property rights may only be expropriated 2.  POSITIVE: The LAL provides defined legal 2.4 The Law and Public Policy through defined legal procedures. procedures to be followed. Public purposes must be strictly defined 3.  POSITIVE: The LAL lists 14 public purposes, and identifiable in the public interest. mainly for infrastructure projects. It is also noted The direct source of the regulation on expropriation of land properties is the that expansion and extension of projects may LAL, presented in 53 articles in 7 chapters. The spirit of intentions can be require further expropriation. All compulsory acquisition must fall within a government plan gauged in part by the national policy. The National Land Policy 2017 or project. 18 19 Chapter 02 -The Legal Context Chapter 02 -The Legal Context  rocedures for expropriation must be 4. P POSITIVE WITH RESERVATIONS: The LAL People affected must be able to 7.  POSITIVE WITH RESERVATIONS: Customary efficient, transparent, and accountable. visibly attempts to adopt efficient, transparent, substantiate their claim either through proof of ownership is permissible and and accountable procedures, including formal or customary proof of ownership. compensation to be paid on the same independent evaluation of project plans, conditions as for formally deeded property division of lines of institutional responsibility, owners (Articles 23 and 33 of LAL and Article a precise plan for defining minimal values of 19 of LML). However, customary rights to lands and structures, and prohibition against collectively owned or used grazing lands (or the government using the taken properties for forests) are not acknowledged. other than the intended and agreed purpose. Preemptive rights must be given to 8.  POSITIVE: Original owners have preemptive  xpropriation must be exercised through 5. E POSITIVE WITH RESERVATIONS: LAL defines original owners should the public purpose rights to reacquire properties taken for public specifically designated government ARAZI (now MUDL) as the designated justifying the expropriation cease or fail. purposes which fail or cease to be applied authority. expropriation authority, working in cooperation (Articles 42–44 of LAL). with ministries and government agencies Where an entire or significant proportion 9.  POSITIVE: An obligation to resettle affected (Article 1(3)). Municipalities may also of a rural or urban community is affected, communities is provided for. However, expropriate lands within master plan areas, areas for resettlement must be provided. shortfalls excludes communities living within presumably in accordance with the terms of a city masterplan area (Article 38). the LAL and regulations. There is potential overlap in the role of municipalities as both Government will issue a resettlement 10.  POSITIVE: A resettlement policy is reportedly expropriators and implementers which could policy or common guidelines for all under draft in 2019 in the Ministry of Finance. constrain transparency and accountability. government agencies to follow, which Several ministries with investment projects must promote timely, transparent, and have also prepared resettlement guidelines.  ompensation must be fair, just, and 6. C POSITIVE WITH RESERVATIONS: Positive accountable practices. Resettlement is in general becoming an timely. elements include that payment of established process for large projects. compensation must be prior to compulsory evacuation of the property, that independent panels will determine the value of properties, and that the right to appeal values, are provided for. However, shortfalls afflict the rural rights of those living on lands found to be state or public lands, ignore collective property rights, and do not take the size of families into account. Rural holders who cannot show occupation by themselves or their forebears since 1963 could be unfairly penalized. Absence of commitment to provide supporting services to resettled communities is questionable. . Failure to legally oblige the state to ensure that off-farm grazing and related lands are provided along with residential plots in rural settlements, and silence on provision for resettled persons to have access to or be provided with new income opportunities could plunge affected persons into new levels of poverty, undermining the one-line commitment in the law to restore them to their former situation. 20 21 Chapter 01 - Introduction Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 Comparision of Land Table 2: Stated Objectives of the LAL and ESS5 Stated Objectives of Afghanistan Stated Objectives of World Acquisition Law and Ess5 LAL 2017 Bank ESS5 on Land Acquisition, Restrictions on Land Use, and Involuntary Resettlement Allowing fair acquisition of the properties of 1.  To avoid involuntary resettlement, or when individuals unavoidable, minimize by exploring project design alternatives C omparative analysis is arranged under headings adopted by the more recent ESS5 (2017), which adds to, but does not detract from, requirements established by OP 4.2 (2013). Regulating methods of determination of 2.  properties acquired Allowing implementation of urban 3.  To avoid forced evictions To mitigate unavoidable adverse social and masterplan and all other plans for projects of economic impacts from land acquisition or public interest from restrictions on land use by: 3.1 Objectives Determining standards of appraisal of fair 4.  Providing timely compensation for loss of (a)  compensation for projects of public interest assets at replacement cost, and Table 2 compares the stated objectives of the LAL and ESS5. Both emphasize Allowing transfer of government properties 5.  Assisting displaced persons in their efforts (b)  fair acquisition and fair compensation and provide for resettlement to help for implementation of projects of public to improve, or at least restore, their interest livelihoods and living standards, in real redress losses. Although not made an objective of the LAL, the substance of it terms, to pre-displacement levels or to shows the intent to minimize evictions by exploring project design alternatives levels prevailing prior to the beginning of project implementations, whichever is and paying compensation at replacement value for houses and farms if not higher other assets, and paying this promptly. Disclosure of information, consultation Resettlement of owners of acquired 6. To improve living conditions of poor or and informed participation of those affected, and limiting forced evictions are properties vulnerable persons who are physically displaced, through provision of adequate not also stated objectives of the LAL, but these are partially to fully met in the housing, access to services and facilities, and substance of the law. Mitigation to restore and ideally to improve the pre- security of tenure project conditions of those affected, providing for resettlement as sustainable Compensation to owners and all other people To conceive and execute resettlement 7.  affected by the process of expropriation activities as sustainable development development programs enabling indirect benefit from expropriation and programs, providing sufficient investment resettlement are neither the stated objectives of the LAL nor well met; nor is the resources to enable displaced persons to benefit directly from the project, as the nature assumption of ESS5 that resettlement will be routinely applied where people of the project may warrant lose their homes and land-based livelihoods an intention of the LAL. Each of Increased positive impact of expropriation on To ensure that resettlement activities are 8.  the above are further explored under the following sections. Conclusions on people planned and implemented with appropriate disclosure of information, meaningful whether the LAL meets the general objectives of ESS5 as listed in the right consultation, and the informed participation of those affected. column are provided in a separate table. 22 23 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 customary property interests; and 3.2 Scope of Application • P  rovide legal provisions for registrable collective ownership of ESS5 only applies where compulsory acquisition or restriction on land use customarily shared grazing and forested lands, or, minimally, is imposed by a World Bank-funded project. It applies to both land rights to ensure replacement of such lost resources at expropriation and land use rights. Customary rights held by communities or groups within with legal stipulation that replacement areas of the same quality them are to be considered, including where these are lost or restricted due to will be allocated to the same affected community as a right of World Bank-funded projects in protected areas, forests, and so on, including exclusive access and use held in perpetuity by the community impacts in buffer zones. Non-customary rights existing in a project area are and its descendants to a designated special grazing land. also to be addressed. Communal property rights are to be considered, such as to forests and their products, grazing, cropping, and freshwater areas, and, • World Bank proposals in rural areas should: where applicable, marine areas. •  ssess potential losses of communal and customary resource A Analysis rights held by settled communities; Afghanistan’s LAL is mixed in respect of scope. A relevant main objective of •  rovide remedy at least to the extent of documented P the LAL is to pay compensation “to owners and all other people affected by replacement of these rights in equally suitable lands by the process of expropriation,” including those holding customary documents participatory identification of proximate areas, and/or as within or other evidence of possession. However, this is in reference only to settled resettlement schemes if the residences and farms of affected residential, farming, and commercial plots. Neither communal properties nor settled communities are also to be lost to them; communally exercised use rights to other rural lands are covered in the law. The law also does not provide explicitly for rights to protected areas or buffer • E nsure that the seasonal transit and use rights of nomadic zones or their products to be considered. pastoralists to grazing and freshwater areas are not denied, or as necessary, specifically redirected as closely as possible to those Gaps areas through participatory identification; and There is a major gap in the scope of the LAL in regard to customarily exercised • W  here protected areas are affected, require the borrower to communal rights to off-farm lands, especially to grazing lands and water provide permits for access and sustainable use rights to these sources located therein, and to protected areas. areas, or to compensate customary users for loss of access and Recommendations benefit where this is unavoidably extinguished by the project. • MULD to take policy initiatives to: • I nclude reparation for community-based tenure and use rights 3.3 Requirement - General lost in all expropriation events in rural areas, as these rights and 3.3.1 Eligibility requirements benefits represent a substantial source of livelihood and have enjoyed long-standing de facto acknowledgement as lawful 24 25 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 ESS5 advises that eligible persons may be classified as those with formal legal • H  owever, when it comes to “other affected persons” in terms of rights to lands and assets; those with no formal rights but who have claims remedy (compensation), there are doubts about the reach of intentions that are recognized or recognizable under national law; and those who have beyond possessors who are tenants, workers with accommodation and no recognizable legal right or claim to the land or assets they occupy or use. jobs, and so on. This is because compensation is visibly to be limited to loss of residential, cultivation, and business values (Articles 13–17, Analysis 24–31). Eligibility does not appear to extend to lands whose customary It needs to be noted that identification of eligible persons is to be carried ownership is not held to be property interests, most particularly to out prior to expropriation in the exercise of survey and adjudication provided adjacent grazing lands. These, along with all other grazing lands are for under the LML (Article 39(1)). This process identifies private ownership classified as unowned and unownable public lands in the LML. While and concludes with the issue of state-granted and guaranteed title deeds it may be logical on these grounds to not compensate those affected, (LML Article 50). The process includes presentation of documents as proof of this is not so in relation to the loss of their access, use, and benefits ownership including customary documents (LML Article 18), and opportunity from these lands, by re-designation of these ‘public lands’ for a public under LML Article 19 for those without legally valid documents to secure a purpose that is not grazing, fodder, and fuelwood collection and related deed where long residence can be testified to. elements of livelihood dependence. There is no provision in the LAL for the value of these rights to be assessed and paid for. •  here is opacity in the LAL as to who constitutes affected persons other T than those with formal legal rights or with recognizable claims. The LML • I  n the reiterated emphasis on assisted resettlement in the form of defines owners as those with legally valid documents of ownership and residential plots (Articles 39–40), there is no reassurance that lost use of occupants as those who do not possess legal documents but who may communal grazing lands will be replaced where resettlement is provided obtain recognition as owners under listed conditions; that is, they may for those who lose their homes and farms (and rights to grazing lands). acquire rights principally through adverse possession. Reservation as to •  he law is also not forthcoming on how the customary use rights of T the time requirement for adverse possession has been recorded earlier. nomadic pastoralists will be compensated, or replaced, where routinely In the substance of the law the main group of eligible persons who are seasonally used pastures are expropriated for public purposes. It not owners are termed possessors, persons who work for owners and is therefore difficult to conclude that the stated objective to pay live on the land of an owner, and/or rent part or all of a property. The “compensation to owners and all other people affected by the process law provides for their recompense when losing accommodation or farm of expropriation” (Article 2) will be met. access. • T  he law is not entirely silent on persons found to be living on state lands. •  he LAL defines an Affected Person as “a person who is not the owner of T Those living on state land (previously known as government land) will be acquired property, but is affected by the process of expropriation” (Article compensated for the price of the building on the land, if s/he has lived 3 (8)), which could include lawful possessors as above. More usefully, there for 10 years and has no other residence in the city, suggesting that the LAL pledges in Article 2(7) to compensate all people affected by this only applies to urban areas (LAL Article 32). expropriation (Article 2 (7)). Such affected persons are also to be listed (Article 8(7)). 26 27 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Gaps 3.3.2 Project design - avoid and minimize The LAL ambiguously recognizes the rights of affected persons who are ESS5 requires the borrower to avoid or minimize land acquisition or restrictions not acknowledged owners, occupants who can lawfully demonstrate tenure on land use, including considering feasible alternative project designs, while without documentation, or persons accepted as lawful possessors of others’ balancing environmental, social, financial cost and benefits, and paying lands as tenants or sharecroppers. Those not provided clearly for include: particular attention to gender impacts and impacts on the poor and vulnerable. • T  hose rural dwellers who lose lands and livelihood by re-designation of Analysis public lands they occupy and use in good faith on the basis of customary  inimizing land acquisition is provided by the LAL in that the expropriating • M norms including claim of these as communal properties; authority is bound by Article 8 to determine “the exact minimum area • Those similarly living and depending upon rural state lands; needed for the project.” It is also required to consider different options for areas to implement the project (Article 7). hose exercising seasonal access and use rights such as nomadic • T pastoralists whose access and use will be curtailed by expropriation and/  ttention to social impact is provided for only to the extent that a • A or re-designation of public grazing lands for other public purposes. social assessment is to be carried out (Article 8 (3)). The contents of the assessment are not provided in the law. While different impacts of Recommendations expropriation upon men and women can be expected, assessment of To be inclusive and fair and to meet the objective of the LAL to compensate this difference is not specified. owners and all other people affected by the process of expropriation, mpact upon the poor and vulnerable is not explicitly required by • I amendment to the law is desirable to: the law. Again, this does not mean this will not occur in practice. For • C  larify the definition of affected persons explicitly including the above example, the poor are likely to be among those found to have built on categories on grounds that irrespective of the legal classification of government property (state land) and who shall be paid for the building state and public lands, they are rightfully due reparation for loss of long- and eligible for receiving a new plot on payment (Article 32)—but as standing occupation, use, and livelihood dependence upon affected recorded above this appears to refer only to urban state lands. Should lands, including as and when they have customarily exercised those an owner be legally incapable of presenting his claim, a representative rights collectively; may act on his behalf (Article 35). Lawful occupants and sharecroppers of others’ lands are likely to be poor and vulnerable.  laborate under provisions for resettlement that all affected persons will • E not only be listed but included in resettlement schemes, and that those  • I t is relevant to legally attending to the poor and vulnerable that schemes will include equitable replacement of lost grazing lands; and Afghanistan has a substantial history since the 1960s of making lands available to the landless and land poor, and which continues to be nsure that guidelines for pre-taking assessments include explicit • E provided for in the LML (Articles 22, 54–56). If they cannot afford to requirement for all such affected persons to be identified. buy these plots, they may pay in installments and receive temporary certificates until full payment is made. Additionally, the decree on 28 29 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision providing land for affordable housing to returnees and IDPs and families the expropriated lands will affect them more severely than losses to of lost soldiers suggest sustained attention to these sectors. While these other social groups; provisions are not echoed in the LAL, they may be brought into play  ender impacts be specifically covered in the above, through difference • G when identifying those affected by expropriation on lands they own, group assessments with affected men and women; occupy, or use. However, earlier comments on limitations relating to the impact on poor and vulnerable who depend fully or partly on livestock  ompensation, including resettlement actions, take both the above • C keeping, and who lose historically practiced rights and benefits from specifically into account in their regard. grazing lands at their re-designation of affected lands should not be forgotten. 3.3.3 Compensation and benefits • T  he LAL addresses environmental benefits by excluding historical ESS5 requires the borrower to offer affected persons compensation at and cultural monuments and national protected areas from being replacement cost. The borrower must also provide other assistance as needed expropriated, and disallows, without official approval, the taking of to improve or at least restore their standards of living. cultivable lands and gardens, forests, frontage of water resources and Analysis green areas important for environmental protection (Article 6). Article 8 also requires the expropriating authority to evaluate environmental  eplacement values: An objective of the LAL is to appraise lands for fair • R impacts when planning expropriation projects. Article 26 (3) requires the compensation (Article 2 (4)). Owned lands are to be valued at local market expropriating authority to create equivalent green areas in cooperation value, and professionals are to assess the value of buildings on the land, with the National Environment Protection Authority, when the original standing crops, and the value of trees and their products, as well as the green areas are necessarily destroyed for the project. Trees are not to be value of local business premises (Articles 23–29). In addition, those who removed unless entirely unavoidable (Article 26 (2)). possess a structure or farm bound by contract are to compensated for loss along with the owner (Article 17). This suggests the legal intention Gaps is toward equitable compensation at replacement value—for loss of While the LAL broadly meets the requirements of ESS5 that the project design these particular assets. This is reinforced by references in the LAL to will minimize land acquisition and take environmental benefits into account, ‘exchange of property with owners’ referring to the priority method of requirements for identification and protection of the interests of poor and compensation, to replace lost land with like land (Articles 3 (7) and 8 vulnerable citizens is provided only in an ad hoc and indirect manner. (11)). Recommendations  owever, there are other rights that will be lost along with their value • H ranging from customarily established occupancy, access, and use to These gaps can be remedied through regulations or official guidelines for lands other than those individually owned to social losses of community project design which require that: assurance (solidarity and shared help, communal decision making on key issues) that will be lost when families are dislocated from a community.  he poor and vulnerable are specifically identified in social assessments • T along with indication of how losses of occupancy, use, and benefits of Other measures to restore standards of living: In view of the above, •  30 31 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 the lack of legal commitment to take other actions to help affected specified as to be replaced. families to restore their living standards is noted. However, the intention  he LAL proposes resettlement only in limited circumstances and where • T is apparent in respect of resettlement. This is defined as follows: only like-for-like loss of residences is implied. Providing of a residence unit within or outside the area of an urban  he LAL does not indicate if and what measures other than compensation • T masterplan to the owner of expropriated property and restoration in like-for-like land or cash equivalent at market rates will be provided to of former situation of eligible affected persons by major national those affected to help restoration of their livelihoods. projects (Article 3 (9)). • The LAL makes no commitment to improve the situation of those affected.  he limitation of providing a residence unit is noted, excluding even • T farmland. In addition, resettlement is limited to major projects. Article 38 Recommendations suggests that this will be activated only where whole communities lose their residences (Article 38). Although it might occur in practice, there is To meet ESS5, World Bank projects will ideally no legal obligation to provide facilities in settlements or locations that  ogether with the acquiring body, require and adopt valuation which • T are already close to these. There is also no commitment to replace lost systematically identifies all losses that will accrue and finds a way to employment opportunities. equitably replace or value these;  or rural communities, the lack of pledge to value or replace collective • F  nsure that resettlement is applied generously, including in cases where • E properties which are on public lands also suggests it will be hard to only part of a community is to be evicted from the area to be taken, and ensure that rural persons secure the replacement value of their losses that resettlement explicitly includes and provides more than residential when such lands are taken. There is also no provision to compensate units, including like-for-like farmlands, and guaranteed access to nearby loss of seasonal access, use, and benefit rights enjoyed by nomadic public lands of the same size and productivity as lost for grazing and pastoralists. wood and fodder-gathering purposes;  mprovement of standards: The LAL makes no commitment to improve • I  • I nstitute a monitoring regime which involves those affected several the situation of project-affected persons, other than in vague objective years after the expropriation to ascertain from them losses they in fact “to increase positive impact of expropriation on people” (Article 2). suffered, with a view of gathering insight into the full nature of tangible Gaps and intangible losses experienced; • T  he LAL does not provide for other than market-estimated value of  hould recent World Bank-funded expropriation projects exist, undertake • S structures, farms, trees, and business and rental losses, to be replaced. a similar exercise to ascertain this information to more readily guide Loss of other land rights including long-standing access, use, and benefit what should be provided toward developing a protocol for new projects from what may be defined in pre-acquisition clearance processes as which more comprehensively attends to these matters; and rural state and public lands are not covered. Losses of livelihood values  ork to remove uncertainties around legal obligations established • W other than relating to business premises or rental of buildings are also for other than above listed losses, work with relevant Government of 32 33 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Afghanistan agencies to improve legal recognition of a wider scope of expropriation with MUDL and representatives from other ministries losses which must be replaced or paid to meet constitutional requirements (Articles 7 and 8). These range from providing reasons for the intended of social justice, protection of human dignity and rights (Const. Art 6), acquisition, presentation of the different options that have been and to enter consideration of these into requirements for provincial bills examined, consultation with the affected community, and development of valuation (LAL Articles 22–23). of a project plan, following a social and economic analysis. Disclosure is required at this level, as well as a shorter list of disclosure points to 3.3.4 Documentation, disclosure, consistent application, transparent owners and other affected persons (Article 9). distribution of compensation  ransparency is also heightened by precise definition of public purposes • T ESS5 requires that compensation standards are documented, disclosed, for which land may be taken (Article 5), arrangements required to hold applied consistently, and compensation distributed transparently. monies for absentee owners (Article 36), a right of appeal (Article 49), the Analysis obligation to pay compensation prior to eviction or implementation of the project (for example, eviction) (Article 37), evaluation of projects by  tandards of compensation are well elaborated in the law for those assets • S a multisector committee as above (Article 12), and monitoring, although that are to be acquired (Articles 25–33). Responsibility for valuation is this lacks detail as to how and when and the processes for which this will also clearly laid out. A Provincial Panel for developing bill of valuation of be conducted or the subjects to be monitored (Articles 11 (1) and (8)). expropriated properties will be created where projects arise (Article 22), with stipulation of how it is to value the lands (Article 23). A Technical  ess visibility surrounds how cities with master plans such as Kabul, and • L Panel is to work with a representative of the owners of price-affected which are exempt from the need to prepare a plan in consultation with properties and is obliged to inform them how compensation can be MUDL (Article 8 (3)), will disclose information or have their decisions received (Article 24). For “the stability of the land market,” MUDL is concerning compensation and other matters independently reviewed. required to determine the lowest minimum values of land across the Gaps country after every five years, to be approved by the government and announced to all state agencies (Article 11 (2)). The LAL meets minimal ESS5 requirements on the above. • T  here is no direct stipulation that compensation be applied or distributed Recommendations transparently, but a regulation on distribution is to be issued (Article 31(2)). Arrangements for absent and incapable owners are specified It will be helpful for citizens if MUDL issues a popular guideline about (Articles 35 and 36). Whenever there is a dispute between the owner compulsory acquisition to aid transparency. and possessor regarding buildings or crops, only the value of the land 3.3.5 Land-based dependence and collectively owned lands will be paid to the owner, and other values will be withheld until a court has ruled on the issue (Article 37(2)). Where livelihoods of displaced persons are land-based (including grazing, harvesting of natural resources, rotational cropping), or where land is  ther prescriptions contribute to transparency, including the need for • O collectively owned, the borrower will offer the displaced persons an option a budget to be prepared for costs of compensation, along with other for replacement land, unless it can be demonstrated that equivalent documents, when the implementing authority argues the case for 34 35 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 replacement land is unavailable. Recommendations Analysis  o meet this ESS5 requirement, World Bank projects need to be • T conscious of these shortfalls, to require remedy to be provided for Article 31 states that compensation will be paid in most cases with grant in project consultation, identification of losses, and identification of of an equivalent land to the owner, or if not available, receipt partly in land suitable areas for replacement in concert with those affected and the and partly in cash. Compensation entirely in cash will be avoided except acquiring agency. where there is complete unavailability of replacement land. Those informal urban dwellers living on proximate state land will be paid only the value of  he World Bank also needs to ensure that resettlement, the likely • T the building, with no replacement land offered, but they may apply to buy vehicle through which replacement can occur, is able to be provided a plot, provided they have no other residence and have held the property for even where the project is not a major national project and/or where for at least 10 years (Article 32). Those who have acquired properties using the entire community is not affected, only parts thereof. customary deeds will also not be eligible for replacement plots, although t will be helpful for the World Bank, as a dominant donor of projects • I they too may buy a plot, and both the value of the land and building will which require compulsory acquisition, to work with MULD and other be paid in cash (Article 33). Note that replacement in neither land nor cash government agencies to encourage the inclusion of rights such as is available to cover losses of rights or use rights covering communal lands listed above in the broader paradigm for compensation, that is, outside of family farms, such as for grazing, harvesting of natural resources, opening up the scope of compensation/replacement to go beyond and rotational cropping. loss of structures, farms, rent, and business profits. This is especially so Gaps as the same legal omissions have already been remarked under Scope, Eligibility, Compensation Benefits. The LAL fails to meet these requirements of ESS5. t will also be helpful for the World Bank and other donors to propose • I  ompensation/replacement for lost grazing areas, natural resources • C to the GOIRA that the LML supports customary owners to secure that are regularly harvested (for example, woody bushes for fuel and enjoyment of rights and be eligible for compensatory replacement fodder), and communal rainfed lands used for dryland cultivation or during re-designation of those lands for other public purposes. grazing depending on rainfall are not covered. 3.3.6 Making benefits from projects available to affected persons  he law does not make any concession to collectively owned lands • T other than family-owned houses or farms and as vested for community The borrower will also provide opportunities to displaced communities and members in a traditional authority and which are to be individualized at persons to derive appropriate development benefits from the project. clearance as noted in analysis of the LML. Analysis These limitations are primarily the result of constraints in the LML as the legal This is not provided for in the LAL. status of grazing land and failure to provide a construct for socially collective (as compared to corporate) ownership. Recommendation 36 37 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Given the above requirement, it is incumbent upon the World Bank to Presuming that the law does not contain a mistake in referring only to city investigate what benefits could be shared with those affected, such as a dwellers, a striking gap in equitable provision exists for rural dwellers in guaranteed number of employment opportunities, projects assisting the similar situations who are neither lawful owners nor occupants due to the community, access to project facilities for health, education, sports arenas, status of the land. submission of an income donation to a community development fund, and Recommendations even shareholding in a commercial public project.  orld Bank projects need to bear in mind that that neither boundaries • W 3.3.7 Resettlement assistance for ‘other affected persons’ between state and public lands or those marking limitations of lawfully In the case of affected persons who are not lawful owners or possessors, occupiable or purchasable private lands necessarily exist in common resettlement assistance will be provided in lieu of compensation for land. knowledge or are demarcated on the ground. Such situations as recognized for informal settlers in cities and towns also exist in rural Analysis areas. To meet ESS5 requirements, these projects need to make • A  stated objective of the LAL is for “resettlement of owners of provision for persons in this situation. acquired properties in major national projects” (Article 2 (6)). This  hould the LAL have a mistake in reference only to city lands, this • S is reinforced by Article 3 (9) describing resettlement as limited to should be amended. major national projects. That is, resettlement of even owners is not obligatory in all cases. Resettlement is most strongly indicated where  ore comprehensive provision for relocation assistance to lands of • M the local residents “collectively lose their residence” and the subject equivalent value to those lost is required. World Bank projects should addressed in the law only in that context (Article 38). The limitation of ensure provision for this and be inclusive of all affected persons, resettlement to owners is reinforced in Article 40. in their projects, unless conditions of compensation or genuine unavailability of suitable locations makes this impossible.  owever, the LAL provides that those who have occupied property • H for shelter on state land and built an ‘arbitrary’ building shall be paid t is recommended that the World Bank work with MUDL and be • I the price of the building and be eligible for buying a plot against a more generous in legal obligations and associated regulations and specified price, provided that s/he has “no other residence in that guidelines toward offering opportunities for assisted resettlement to city” and has possessed the property for 10 years (LAL Article 32). This equivalent locations wherever possible, not limited to major national benefit is also accorded to those urban dwellers who have customary projects. This is also in accordance with the preferred compensation deeds evidencing purchase of a plot on which they have built a strategy expressed in Article 31 to compensate losses through house, again if s/he has no other shelter in the city (Article 33). These equitable exchange of lands. opportunities are not provided for rural dwellers in relation to state 3.3.8 Taking possession only after compensation has been paid and land. They do seem to have eligibility as potential owners if they have affected persons resettled constructed houses on public lands (grazing lands). The borrower will take possession of acquired land and related assets only Gaps after compensation is paid and where displaced people have been resettled 38 39 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 and moving allowances have been provided in addition to compensation. whichever is higher. And then, as above, commence those programs in a timely fashion so affected persons can take advantage of alternative Analysis livelihood opportunities. Persons are to vacate their properties within one month of receiving  nly in the terminology clause for ‘resettlement’ is there indication • O compensation (Article 10) and which shall be prior to implementation of of commitment to restore eligible affected persons to their former the project (Article 37). As allocation of equivalent land in terms of type, situation, which is limited to major national projects (Article 3(9)). location, grade, and business value is established as the primary form of There is no elaboration of what restoration will involve or provision of compensation (Article 31 (1)), it can be assumed that this compensation will alternative livelihood opportunities in the law. There is therefore also include resettlement for those to whom this is applied. This is confirmed by no legal commitment to timeliness. Article 41 although in awkwardly translated English: Gaps Implementation of the resettlement project shall be applied after determination and confirmation of the owners of the expropriated There are no legal obligations to restore livelihoods to pre-project standards properties who need to be resettled and affected persons by other than in major national projects and no commitment to improve these the Resettlement Committee, prior to implementation of the situations. expropriation project of their transfer. Recommendations Gaps  orld Bank-funded projects need to address this basic objective of • W The LAL does not provide for moving allowances. ESS5. Project assessments should identify practical as well as sought means of restoration of livelihood by those affected and build this into Recommendations project plans. Provision for moving allowances should be adopted into World Bank-funded  ssisted relocation in which context such plans could materialize • A projects and ideally into the LAL as a legal obligation. should also be made more routinely available for all persons affected 3.3.9 Restoration and improvement programs not to be delayed by expropriation for public purposes, not only in major national projects, and the LAL ideally amended to reflect this. Livelihood restoration and improvement programs will commence in a timely fashion to ensure affected persons are able to take advantage of alternative 3.3.10 Unclaimed compensation to be placed in interest-bearing escrow livelihood opportunities. account Analysis The borrower needs to place compensation in an interest-bearing escrow account where it has proven impossible to contact absentee owners or  SS5 requires World Bank-funded projects to displaced persons • E where competing claims still exist and are subject to legal proceedings. in their efforts to improve, or at least restore, their livelihoods and living standards, in real terms, to pre-displacement levels or to Analysis levels prevailing prior to the beginning of project implementations, 40 41 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Whenever an owner or his/her legal representative does not appear on time, is to be a member of three major committees: Technical Panel for Land the expropriating authority will present the issue to a competent court for Evaluation for pricing properties; Evaluation Committee, Resettlement appointing a legal proxy (Article 36). Article 49 states that when a dispute Committee (Articles 12, 24, 38). Only in the last committee is concerns compensation when the project has begun, the due amount will be a representative of “other affected persons” also to sit on the deposited in a state-owned bank, to be paid after the decision of the court. committee. Gaps: None. Gaps Recommendations: None. There is no legal obligation in the LAL to engage affected persons throughout the process or document this in project plans and assess 3.3.11 Community engagement engagement in monitoring. Monitoring itself receives a cursory one- ESS5 requires that consultation and engagement on all matters related line provision that it will take place as a function of MUDL (“to monitor to resettlement must begin early, including full and early disclosure of implementation of the expropriation process” [Article 11 (1) (8)]). information, meaningful participation in alternative project designs, Recommendations planning, implementation, monitoring of the compensation process, livelihood restoration activities, and relocation. This is to be documented in World Bank guidelines should include stipulations that both provision for the resettlement plan and in monitoring reports, showing how households sustained participation and monitoring of if and how this is executed be and communities are involved throughout the process. obligatory in World Bank-funded projects and to be specifically covered in (a) the conduct of social and environmental assessments; (b) project plans; (c) Analysis resettlement plans; (d) a monitoring point for the execution of expropriation • Disclosure is required six months ahead of the project’s processes; (e) execution of resettlement projects; and (f) in regard to implementation, including on estimated values of properties based on additional measures undertaken aiming to achieve pre-project conditions for minimum and maximum values (Article 9). Note that where clearance those affected, and if not, in all these instances, to identify and document takes place prior to implementation of a project, those affected are causes. likely to be aware of intentions and, through this, could be engaged 3.3.12 Ensuring inclusion of women’s perspectives in consultation in the process of suggesting resettlement sites and making concerns known. The consultation process should ensure that women’s perspectives are obtained and their interests factored into all aspects of resettlement planning • Consultation is obligatory: “consulting with the community of the area and implementation. under expropriation regarding implementation of the project” (Article 8 (8)). It should also be recalled that the LML requires the owners, Gap Analysis village leader, and local council representative to provide information There is no legal obligation for the implementing agency to do this. to the above clearance teams (Article 27). Recommendations • Participation is provided to the extent that a representative of owners 42 43 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 World Bank projects should provide specific guidelines for social and submitting grievances on compensation offers. environmental assessment, project plans, resettlement plans, and monitoring 3.4 Displacement procedures and engagement with the implementing agency to find the best means of achieving this in practice. As part of the environmental and social assessment, the borrower will 3.3.13 Grievance mechanism conduct a census to identify affected persons and an inventory of land and assets affected. This information should be derived through a consultative The borrower will ensure that a grievance mechanism is in place as early process and cover all rights held or asserted by affected people, including as possible to address specific concerns about compensation, relocation, those based on custom or practice, secondary rights, and rights held or livelihood restoration measures raised by displaced persons (or others). in common. The views of women should be specifically solicited and Where possible (these) will use existing mechanisms, supplemented as preferences concerning replacement land or alternative access to natural necessary with project-specific arrangements designed to resolve disputes in resources rather than cash explored. The census will also include claims of an impartial manner. communities or groups not present during the census, such as seasonal resource users. A cutoff date for eligibility will be fixed and disseminated in Analysis the area in local languages.  rievance mechanisms are provided for in the LAL. Article 34 enables • G Analysis an owner or his/her legal representative dissatisfied regarding compensation offered to present his/her objection with reasons within Legal obligation to carry out social and economic assessment is provided for 60 days to the expropriating authority, which will decide the case within (Article 7). A list of affected persons is to be drawn up by the implementing 30 days. Failing resolution, the matter will proceed to an appointed agency (Article 8 (3)). Under procedures detailed in the Land Management three-person jury, one of which is a representative from the area. If this Act led by MUDL, provincial teams will identify, survey, and map all fails, then the issue will be referred to a court. residential and farm parcels affected by the proposed expropriation. While customary rights to these land types are covered in the law, no mention  rticle 49 provides for conflicts during implementation of a project • A is made of identifying secondary rights or rights held in common, other to be referred to MUDL, and which will refer the matter to the court if than relating to residential or farming lands. There is no legal provision for resolve is not forthcoming. There is a wider scope in this context for soliciting the views of women and their preferences concerning replacement matters other than compensation to be addressed. land or alternative access to natural resources rather than cash, although Gaps this could be encompassed under a general requirement for community consultation regarding implementation (Article 8 (8)). There is no provision The law does not appear to provide an opportunity for those who are not for those absent during the census to present their views. lawful owners or possessors to present dissatisfaction with their exclusion to the expropriating authority. Gaps Recommendations  o legal provision is made for an environmental assessment to be • N carried out. World Bank projects should ensure that all affected persons are eligible for 44 45 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 • I nformation to be collected in assessments is not in the law nor is Gaps procedure prescribed as participatory. While committing to settlement planning, the law provides no details on its  ights held in common, secondary rights, or customary rights on lands • R required content. There is no indication in the law that settlement planning deemed at survey to be state or public lands are not evidently to be can meet the requirements of ESS5 or as more precisely developed in ESS1. recorded except where persons have built structures on state lands in Recommendations urban areas. t is preferable that the World Bank encourages the development of • I Recommendations a regulation or official guidelines be issued under the LAL, setting  UDL should be encouraged to produce a regulation or official • M out the required and ideal content and issues to be covered in a guideline stipulating the questions to be researched in the affected settlement plan and implementation plan. It is advisable that ESS1 be area and approach to be followed, with emphasis on genuine used as a model in which social risks and impacts are considered as a consultation with those affected. matter of routine procedure.  he above must explicitly include identification of landholders, users, • T  hould this not be forthcoming, World Bank projects will need to use • S and seasonal users of both state and public lands identified within the ESS1 to ensure they meet its standards. proposed development area. 3.4.2 Physical displacement  hould such a regulation or guideline not be forthcoming, the World • S The borrower will provide arrangements to allow displaced persons to obtain Bank will need to develop a comprehensive and consultative census adequate housing with security of tenure. program of its own, including capturing specifically required elements by ESS5 such as consulting directly with women and ensuring that Analysis holders of seasonal access, use rights, and benefits are identified, This is provided for under listed responsibilities of MUDL in expropriation, along with members of settled communities who share access, rights, including “Granting Deed to the owner if compensation for the expropriation and benefits from lands held in common. is land” (Article 11 (1) (4)). 3.4.1 Settlement planning Gaps ESS5 requires that a settlement plan be prepared. Also refer to Annex 5,  here is no legal provision that displaced persons will obtain adequate • T which assesses this requirement as elaborated in ESS1. housing, especially as it is residential plots and not houses that Analysis resettlement provides to displaced persons (Article 40). Although not so termed, the logical outcome of listed tasks of the  hile compensation for lost lands for like lands is the favored • W resettlement committee is a plan, which includes an implementation plan approach, assisted resettlement is limited to major national projects, (Article 39). No information on its content is given in the law. and there is opacity throughout the law about the criteria for persons other than those registered and others who can prove ownership and 46 47 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5 will be compensated for loss of lands and resources. citizenry as a whole, such as reporting annually on takings, are not provided. Recommendations Gap Analysis  he World Bank should seek clarity from the government on criteria • T ARAZI is required to monitor implementation of the expropriation process that will be applied for those who are not registered owners or able (Article 11 (1) (8)). No details are given. to demonstrate ownership to be eligible for assistance when their Recommendations occupancy and rights are affected by expropriation. deally, the World Bank will assist the expropriating authority to • I  orld Bank projects need to secure commitment from the government • W develop requirements for monitoring assessment, planning, and to assist owners and all other affected persons to reasonably obtain implementation of projects which result in land expropriation. adequate housing where existing houses are taken.  ithout this, World Bank projects must take responsibility to develop • W 3.4.3 Forced evictions the same, using ESS1 requirements as a guide. The borrower will not resort to forced evictions of affected persons. 3.4.5 Economic displacement Analysis The borrower’s plan will include measures to allow affected persons to The LAL does not commit to avoiding forced evictions, despite this being a improve or at least restore their incomes or livelihoods. national land policy principle (Policy 5.21). Evictions are likely to be coercive Gap Analysis where having accepted compensation, the owner refuses to move from his/ her residence or farm.  he law does not stipulate measures designed to improve incomes and • T livelihoods. It states restoration of former situations as an objective for Gaps resettlement of affected persons in major national projects. Legal commitment against forced eviction is lacking.  here are no provisions in the law which suggest an improvement • T Recommendations approach to lands and livelihood on compulsory acquisition. World Bank projects should obtain this commitment in reference to their t cannot be concluded that the LAL meets requirements of ESS5 • I projects. in respect of economic displacement. The law neither fully replaces or compensates losses nor lays out measures that will help affected 3.4.4 Monitoring persons restore their incomes and livelihoods. The borrower will establish procedures to monitor and evaluate the Recommendations implementation of the plan and will take corrective action as necessary to achieve the objectives of this ESS. Currently, LAL 2017 includes a one-line  orld Bank projects need to consciously develop measures directly • W provision for monitoring the expropriation process, handicapping assurance intended to restore the situations of all those persons its funded of accountability. Measures of accountability to those affected and to projects affect. 48 49 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 03 -Comparision of Land Acquisition Law and Ess5  onitoring the success of this element should be specifically listed as a • M community access to special grazing lands local to each community but requirement in project planning and implementation. controlled by the state. Loss of Rights and Resources by Local Communities n summary, the LAL does not meet the requirements of ESS5 or, in • I particular, ESS7, in respect of IPs. Along with the LML from whence Where possible, local communities and IPs should be allowed to exercise restrictions derive, expropriation risks push these groups into greater preexisting access or usage rights to the borrower-controlled land. If this marginalization, principally by not recognizing collective rights and is unviable, then the borrower will offer options for alternative income- dismissing their communal properties as unowned and unownable earning opportunities, such as credit facilities, skill training, business start- and by failing to provide for recognition of collectively used resource up assistance, employment opportunities, or cash assistance additional to use rights. The level of IP participation needed in project design and compensation for assets. planning to arrive at workable compromises enabling those affected to Also refer to Annex 6 which reviews requirements of ESS7 in respect to IPs. consent to developments is not envisaged in the law nor are alternative grazing lands or serious investment in alternative incomes provided for. Analysis Gaps Ps have no special recognition in Afghanistan law, but there • I is recognition that different land use systems apply, including  here is no requirement in the LAL that those who lose customary • T constitutional reference to nomadism (Article 14). The land rights grazing lands through expropriation of areas will either receive and use realities of nomads and communities such as Hazara will be compensation for these lands or be guaranteed access to alternative addressed during compulsory acquisition only via identification as areas or assisted to be granted those alternative areas as special owners, possessors, and other affected persons. grazing lands. • A  s the primary land asset of these communities is rangeland, they will  or is there requirement in the LAL that those so deprived of essential • N be deemed ‘other affected persons’ given the status of all grazing access and use rights will be provided with alternative income-earning lands as public lands. At the same time, public grazing lands are opportunities, credit facilities, skill training, or other such support. earmarked for collective use by the public or, in the case of special • ESS7 requirements for engagement with IPs is not met by the LAL. grazing land, by identified local communities. This provides grounds for those affected to reasonably claim to either continue to use, if not Recommendations own these lands, or to be allocated alternative grazing lands. As the law gives no assurances in regard to IPs, fairness and justice will • T  he LAL makes no reference to nomadic peoples or other communities depend upon the borrower being required by the lending World Bank to who customarily own unregistered lands and resources or have investigate and report on the presence of tenurial claims and dependence of exercised seasonal or other use rights to these. such communities in the project area. This will be most critical in rural areas. It may also be needed in urban and peri-urban projects where impoverished  egal access to public lands (grazing lands) is provided in the LML. • L nomads are known to have settled. They too presently live on lands deemed This includes public access to general grazing lands and exclusive to be state or public lands. Nomads may have an advantage over other 50 51 Chapter 03 -Comparision of Land Acquisition Law and Ess5 Chapter 04 customary land dependent communities in that they establish their identity as IDPs or refugee returnees and through this are eligible for grants of Conclusions residential plots in settlement schemes as per instructions in Decree 305. This decree will also come into play where the land on which they have settled—often in and around cities and towns—is earmarked for public purpose development. A summarized listing of compliant, partially compliant, and least-compliant elements of the LAL with ESS5 requirements is provided below. 4.1 Compliant Attributes of LAL with ESS5  recise identification of public purposes on the basis of which lands may • P be expropriated egal obligation to pay compensation prior to land taking, required • L evacuation within one month of the owner receiving compensation  rovision for urban dwellers who have insufficient grounds to claim • P ownership to have at least some of their losses compensated for  rovision for incapable persons and absent persons who are owners to • P be considered in the identification process  ecognition that tenant farmers, workers occupying farm and other • R buildings owned by others are lawful possessors deserving compensation along with the owner  larity as to how lands for residential, farm, and businesses are to be • C valued  rovision for independent technical valuation panels by multisector • P committees to arrive at compensation levels Provision for independent evaluation of expropriation project plans •  52 53 Chapter 04 -Conclusions Chapter 04 -Conclusions • A  ssured right of resumption for owners should their taken lands not be 4.2 Partially Compliant Attributes of LAL with ESS5 used for intended purposes There are also provisions in LAL which do not fully meet ESS5 requirements. equirement that planners consider alternative project locations to • R Some are due to gaps in elaboration. Others are due to substantive limitations, minimize land losses but which could relatively easily be brought to the point of compliance through clarification where the legal provision is unclear or too short to know its real  egal preference to compensate owners with land in lieu of the same • L scope, or through elaboration or stand-alone regulations. These include the type, location, grade, and business value, paying compensation in cash following: only where no land is available •  Stated commitment to consult with affected owners and others but • E  xemption of protected areas from compulsory takings, and requirement without elaboration or when and how this must be carried out. that the implementing authority recreate lost special green areas of •  To aid accountability and practical division of roles, distinction is drawn environmental value in the law between expropriating, implementing, and enforcement authorities but undermined by potential for an expropriation body to  bligation by the implementing authority to provide reasons for • O also be an implementing and enforcement authority. expropriation; to offer different options for implementation; to indicate •  Opportunity for those holding indicative evidence of ownership and the minimum area required for implementing the project; to study social, those with customary documentation to secure recognition at least to environmental, and economic impacts; prepare a project plan and time residential, farm, and business premises (but not to grazing lands). frame for implementation; and to submit this to an Evaluation Committee; •  Provision for resettlement, including preference for this strategy but the LAL accordingly broadly in principle meets ESS5 requirements that contradicted by apparent intention in the law to limit this to instances project design will minimize land acquisition and key steps in project where whole communities are affected and to major projects; this planning requirements could be unjust; there is a related contradiction with legal commitment • P  rovision of useful steps toward participation by requiring that an owner in the LML to distribute lands to the landless (LML). represent owners on the local Land Valuation Panel and on the Project •  Clear provision for how minimal land and structure values will be Evaluation Committee and that a representative of other affected defined but lack of clarity as to whether this means compensation will persons in addition to a representative of owners be a member of the always be at the lowest possible rates and/or if this will be unevenly Resettlement Committee where this is established applied when it comes to documented owners, customary owners, and (other) affected persons with weaker tenure.  he LAL meets the requirements to protect intended compensation that • T •  While the LAL is positive that compensation including by physical cannot be immediately received relocation is to be provided, the absence of requiring valuations to account for the full replacement costs of taken lands and structures, • Indication that titles will be granted to resettlement plots relying unduly on the local market value of lands, whereas construction of new houses and establishment of new farms and irrigation systems and securing water may be significantly more expensive than sale prices for buildings and farms. 54 55 Chapter 04 -Conclusions Chapter 04 -Conclusions • isible legal efforts to heighten transparency and accountability, V •  rovision for grievances to be heard, including during the project, but P without tangible legal prescription as to how this is to be achieved. without the right of persons affected other than owners to appeal, • One-line provision for monitoring with no legal stipulations as to what,  such as those to be removed from rural state or public lands, for how, and when projects will be monitored or how projects will be proposed public purpose projects, including allocation of these lands accountable to all those affected. for commercial development and investment purposes. • While the implementing authority must justify reasons for expropriation, •  The LAL is largely compliant with directives of Afghanistan’s own Policy the law fails to provide guidance as to what it must consider, suggesting (2017) on compulsory acquisition but falls short especially in failing it may fall back on incorrect assumption that just because a project is to meet policy commitment since 2007 to provide for customarily in the public interest (or in the interest of some sectors of the public), if collective ownership of adjacent and medium range rangelands to this will be balanced with negative risks and impacts including to other be acknowledged and considered for compensation when taken for sectors of the public and public interest. public purposes. • Enabling government land (state land) and public land (national land)  •  While enabling those without documentation to be recognized as to be transferred for implementation of projects of public interest but owners through testimony of long residence, limitations on its utility with inadequate protection of long-standing inhabitants, claimants, or given the requirement that this dates back to 1963. collective owners and users of these lands. • The LAL does not meet the ESS5 requirement for settlement planning  •  Communication through public media and local administrative other than in broadest terms to be remedied through ongoing authorities, requirement that the implementing authority give notice development of a national resettlement policy; of six months to affected owners and other persons in the project area, • The LAL does not explicitly commit to avoiding forced evictions despite although the point at which this is issued is unclear and could prove this being a national land policy but the law takes measures which insufficient time to meet consultation, social and economic review, will help limit the necessity for forced evictions, such as providing for engagement, and planning requirements. grievances on the compensation offered to be protested and heard by •  Positive intention in requiring clearance teams to identify land usurpers a jury of qualified persons. for cancellation of their rights but without information on standards to •  Apparent lack of requirement that an environmental assessment be be applied or the process to be adopted. carried out and without legal stipulation as to content and procedures •  Welcome attention under the Regulation on Registration of Urban for social, economic, and environmental assessments, risks that these Informal Properties 2017 under the LML for the interests of those living exercises will not meet breadth or depth of requirements established off state lands in urban domains to be compensated for the value of in ESS5 and elaborated in ESS1. their structures but without comparable provisions for those living on • Inclusion of all affected person in social assessments could be  state lands in good faith to be similarly assisted in rural areas. handicapped and invalid in absence of legal stipulation that this must • The LAL provides opportunities for replacement of lost farms but does  cover losses to those living or owning, as families or communities, not provide replacement land where those lost are grazing lands, lands declared to be public lands or those occupying rural state lands. forests, or any other lands, which the state determines are state or Regulatory provision as to what must be considered, and who must be public lands but upon which the affected persons or communities are consulted and how, should be achievable. dependent and often are the customary owners. 56 57 Chapter 04 -Conclusions Chapter 04 -Conclusions alpine cultivation areas. • The law is too narrowly focused on individually held properties,  4.3 Limited or No Compliance of LAL with ESS5 failing to meet ESS5 requirements that lands owned or used collectively must be included in assessments of impact and in The following pose the most difficulty for meeting World Bank standards for terms of reparation. While this may not occur in practice, the law fails financing projects. to prescribe that the occupancy and use and benefit from all lands • A declaimed but weak commitment to restore the living situations within the project area must be assessed, including those that are and livelihoods of those affected by expropriation to pre-project only exercised seasonally. Repeated reference to ‘residences’ limits levels. Assisted relocation to comparable lands is correctly the priority reparation, such as in reference to resettlement, such plots being only reparation in the law and in accordance with ESS5, giving a better one element of living conditions and livelihood lost through compulsory chance for recovering livelihood and living situation, but this, it seems, acquisition and insufficient recompense on its own. will only be selectively available. The objective of recovery is articulated • The law fails to adequately provide fair arrangements for loss of  only in reference to resettlement, but resettlement in another article use rights to state and public lands and the impact this will have on indicates that this will only be applied when whole communities are living situations and livelihoods. This includes riverine areas, wetland, affected and for major projects. There is no indication that other losses forests, and especially grazing lands. may be paid for, such as being forced to surrender animals through •  The law is constrained by definition of state land which include lands being denied access to grazing lands or losing access to water for of any type which may have been recorded or mapped as government irrigation and household use. It is hard to see how these arrangements property in the past. These maps were not always drawn on the basis will genuinely allow those affected to restore their previous situations, of community consultation or adjudication but often by their type and a basic requirement of World Bank standards. condition despite some areas being owned customarily by families • It is unclear from the law how far resettlement will or in which and communities. It is problematic that the LAL is emphatic that the circumstances replace facilities (health, schools, service centers, reliability of maps of state land will not be revisited, compounding employment opportunities, water services) or be located near to old injustices. The law is also emphatic that even where claims to existing ones. particular parts or parcels of state lands exist, they will not be considered. • The law is unconvincing that all persons affected by the project • The law is constrained by the paradigms of the LML which fails to define will be compensated—one of its stated objectives and a requirement collective property as a widely practiced tenure due formalization of World Bank standards. The law is silent as to how vulnerable groups and recompense when taken. such as those customarily owning grazing lands as communities will be • The law fails to stipulate that resettlement should be designed as a  compensated when those lands are discounted on grounds that these sustainable development program. are state lands or public lands. Provision for replacement lands is not •  The law fails to bind project implementors to identify and provide addressed in the main law. The focus of the law is on houses, other ways and means through which those evicted or in other ways affected structures including commercial buildings, and permanent farms to can benefit from the intended public purpose development or to the exclusion of water sources, value of irrigation channels that will be require the expropriating authority to ensure these are implemented. destroyed or lost to the owners, and customarily owned grazing and • Attention to gender specific impacts is nowhere stipulated. 58 59 Chapter 04 -Conclusions Chapter 04 -Conclusions •  he law does not meet ESS5 requirement that in the case of affected T developments is not envisaged in the law nor are alternative grazing persons who are not lawful owners or possessors, resettlement lands or serious investment in alternative incomes provided for. assistance will be provided in lieu of compensation for land. This is 4.4 General Conclusions limited to the right of such persons to buy land in resettlement projects which they may not be able to afford nor will those ‘other affected persons’ benefit who are within ‘major projects’ where relocation will 1. A positive starting point for developing projects be provided. Many positive attributes exist in the LAL with evidence that the government • The law does not distinctly address physical and economic  has sincerely attempted to meet the standards that modern justice requires, displacement as required by World Bank standards. Housing is not such as defined in World Bank Economic and Social Frameworks. However, the indicated as to be provided even in resettlement schemes. There law does not remove all pernicious practices or move compulsory acquisition are no convincing measures to enable displaced persons to recover forward to the degree that such standards require. livelihoods and living standards even in resettlements where it is not clear that other than residential units will be provided. This will penalize While there is scope for improvements in many areas, key limitations derive farmers and also all rural persons who depend upon secure access to from structural paradigms as to land classes and forms of acceptable tenure grazing lands and water sources. in the LML, as addressed below. These may be difficult to overcome. And yet • The LAL only sometimes distinguishes between urban and rural  these must be overcome to meet the standards for World Bank financing of domains. For example, some articles are clearly relevant only to urban projects extinguishing or diminishing rights at expropriation. domains without parallel provision being made for rural areas. • Treatment of vulnerable and poor groups is incomplete. Absentee  The World Bank may need to seek special arrangements for projects landowners, incapable persons, and those who rent rooms or houses where problems in fair recognition of all rights exists. While project-specific or work for landlords as sharecroppers, tenants, or workers are catered arrangements are frequently resorted to where the laws fall short, this raises to. The requirements of nomads are not dealt with. Ironically, IDPs, questions of fairness where non-World-Bank-funded projects do not treat returnees, and families of those killed in military or security service affected communities in the same manner. may do better than other vulnerable poor under provisions in another 2. A law caught between the old and the new decree which requires assistance to be given to them for residential The LAL suffers from being caught between old norms and limited venture plots in locations accessible to employment opportunities. into new norms. This is not a reformist law. It has not been drafted from scratch • The LAL does not meet the requirements of ESS7 in respect of  to legally guide an entirely fresh approach to expropriation in the public IPs. Along with the LML from whence the restrictions derive, the LML interest. For example, the requirement to consider the leasing of citizen lands will push such groups into even greater marginalization, principally in appropriate circumstances is not developed. Recognition that expansion by not recognizing collective rights and dismissing their communal of commercial and infrastructural developments is going to become a regular properties as unowned and unownable and by failing to provide rather than exceptional feature of growth and progress is not embraced as for recognition of collectively used resource use rights. The level a development issue in which those affected must be genuinely enabled to of IP participation needed in project design and planning to arrive participate, whether as partners in viable enterprise or as co-owners or as co- at workable compromises enabling those affected to consent to planners and users of public services. 60 61 Chapter 04 -Conclusions Chapter 04 -Conclusions on process is provided for. 3. The law provides an uneven foundation for advancing the rights of the 6. An unconvincing legal framework for recovering pre-project situations poor and vulnerable and livelihoods Attention to the rights of the poor, almost the majority of Afghans today, is A fundamental premise of the LAL remains that, traditionally pursued, still positioned as a social anachronism deserving minimal action, not using either replacement with a similar parcel in a different site or payment of its the inevitably traumatic events of compulsory acquisition as transformative pre-project value will allow the owner and family to recover their situation opportunities, fashioned to bring the poor into mainstream avenues of equitably. Implementation of thousands of projects during the 20th century progress. In short, while meeting many standards in a minimal manner, the showed this to be a flawed assumption, with steady if uneven movement spirit of why the World Bank and other lenders finds a more comprehensive in laws to first, require all project-affected persons to benefit from assisted developmental embrace more and more essential. resettlement particularly if they are poor, and second, to commit to measures to improve the living and livelihood conditions of those affected. A reason for this evolution is recognition that compulsory acquisition is not an exceptional 4. The law fails to move sufficiently toward a participatory approach to land but regular and increasing event especially in developing economies and takings of peoples’ lands and livelihood sources by which millions of people confront consequent pauperization, even with The LAL commits to consultation (in one line only, without details) and identifies some cash compensation in hand. This has led to more progressive laws and three points of their minority participation on committees. While it is in the standards, such as required by the World Bank to locate extinction of rights for right direction, this does not visibly move what still risks being delivered as public purpose in a context of inclusive and sustainable development. token consultation and participation into a modern mode of participatory The LAL falls short in these regards such as by not explicitly committing to development of projects with government specialists that will alter their home redress for all affected persons other than owners, not making resettlement areas and lives irrevocably to one degree or another. a consistent remedy, suggesting that only residential units will be provided in such schemes, an absence of provision for economic displacement to be 5. A weak approach to devolutionary application of compulsory acquisition fully addressed. The end result is a flawed legal paradigm for minimizing the Related to the above are weaknesses in how the LAL designates players, impacts of involuntary displacement. reaching appropriately down to the provincial level. Contacts with local district administration are to be made. Communities are to be involved in the process 7. Denying collective ownership exists and deserves recognition and of confirming rights, to the extent that two local leaders are to be present along reparation with the owner. This is all a far cry from participatory adjudication, surprisingly Finally, an issue which has been raised repeatedly in this report limited absent in a country which has invested so significantly in developing urban recognition of property rights and land use rights affecting potentially the neighborhood councils and rural village councils. A devolutionary approach majority of rural communities. This stems from denial by the revised LML 2017 which results in community-based rights identification and adjudication assisted that collective properties exist under customary norms, which abundantly exist by government actors, rather than the other way around, is not required by in practice as especially rangelands adjacent to a community and respected as World Bank standards and is not elaborated here. It is mentioned because the its property by neighboring communities and clans, and in some parts of the top-down approach envisaged in the law may handicap fair participation and country, additional remoter rangelands earmarked for short summer use, owned acceptable decision-making at the local level unless more specific directives 62 63 Chapter 04 -Conclusions Chapter 05 customarily on a clan/tribal basis. Because all grazing lands are declared to be unowned and unownable public lands, communities are not to be compensated General Recommendations for these property losses. More seriously for recovering livelihoods, there is no provision in the LAL that lost access, use, and benefit values will be calculated and paid for—or more usefully for communities, that these losses will be replaced with as certain and exclusive access to pastures of equal size, type and value. The LAL is generally silent on the fate of dispossession of property and access and use rights to grazing lands in general. Perhaps the assumption is that those affected will somehow be able to replace these losses on general It will be helpful if the World Bank can work with MUDL and the Ministry of grazing lands, the larger and more scattered pastures which may be too Finance on relevant settlement strategy matters to do the following, either remote for settled communities to use. As the law suggests to providing only generally, or in the context of particular projects proposed for World Bank residential units for those who are resettled, there is not even surety that they support: will have access to new grazing lands, or they may have to share access with already overburdened pastures openly available to the public. This shortfall in  o identify, including with the help of this review, provisions in the LAL • T the law poses grave limitations in meeting the social justice requirements of where intentions and scope are insufficiently elaborated, including a new World Bank standards and most sharply contradicts the requirements of ESS7 section listing scope and principles, for MUDL to draft amendments or in respect of IPs who enjoy both collective rangeland property and access regulations. rights to other rangelands. However, many communities of all ethnicities and  o tackle substantive limitations where more detail, clarification, or • T rural land use modes are affected, and deprivation could be widespread in useful additions to the law could be made to help the law better meet rural expropriation initiatives (losses also affect those families without livestock international best practice including standards set by the World Bank. but who historically depend on community-owned and controlled pastures for These range from potentially unfair adverse possession conditions in collective winter fuel). Without legal obligation to replace community pastures rural settings to failure to require project planners to explore how far with new special grazing lands of equal size, type, and benefit value or provide lands might be more fairly leased from owners than acquired. ample sources of alternative livelihood opportunities, the livelihoods and living standards of project-affected persons will plummet.  o work with the Ministry of Agriculture, Irrigation and Livestock toward • T a new Pasture Law which includes commitment to test community ownership of special grazing lands, as a basis for incentivizing communities to sustainable manage, rehabilitate, conserve, and develop the productivity of this area.  o ensure that compensation as replacement or in cash includes grazing • T lands for all affected, irrespective of their deemed status as unowned and unownable. To explore with MUDL, its legal team, and other policy makers whether •  64 65 Chapter 05 -General Recommendations Chapter 05 -General Recommendations provision for collective property rights including over grazing lands can  o include an adjudication process in Tasfiya when exercised as preface • T be entered into the LML, with possible proviso that major compulsory for compulsory acquisition which allows the team to fairly unpack acquisition projects be bound to pilot their development as relevant to overlapping claims to state or public lands where the occupants have their project developments such as in assisted resettlement schemes, long occupied and used the lands in good faith rather than using only including helping those communities to bring their shared grazing lands the evidence of maps which classified the lands largely on the basis of under active conservation management and productive improvement; type. to work with Islamic scholars where limitations of collective ownership of naturally collective grazing lands is attributed to Sharia law, to reinterpret its provisions to determine if this can be overcome in modern times. o tackle inattention in the law to and reparation for long-standing • T access and use rights to project-affected lands, explicitly rights held by nomadic pastoralists, and to commit legally to fair reparation through replacement of like lands if these are to be no longer available for their seasonal transit, access, and use.  o develop a comprehensive participatory engagement plan and which • T opens the way toward de facto consent with affected persons through consultative negotiations.  o develop monitoring points and procedure, including requiring in the • T law or regulations that this be sustained after the lifetime of projects for five years, including a commitment to remedy limitations which have arisen specifically from the acquisition project. o reassess if planned provisions for compensation can really help • T those whose rights are extinguished recover their living standards and livelihoods and make amendments to legal prescription around this, including stipulating particular additional financial or material support that must be provided.  o work with MUDL and the Ministry of Finance toward a Resettlement • T Strategy which aims to be oriented to and nested with a sustainable development approach, including addressing presently absent legal commitments to supporting the economic livelihood recovery of resettled communities. 66 67 Chapter 06 -Documents Reviewed Chapter 06 Documents Reviewed Documents of Government of the Islamic Republic of Afghanistan (GOIRA) • Revised National Land Policy, May 2018, ARAZI • National Land Policy of Afghanistan, 2007, ARAZI  inistry of Mines and Petroleum, July 2018. “Resettlement Policy • M Framework (RPF) for the Afghanistan Extractive for Development Afghanistan Legal Instruments Project.” Islamic Republic of Afghanistan, Kabul. • Ministry of Mines and Petroleum, Social Policy • Constitution 2004  inistry of Urban Development and Land (MUDL), February 2019. “The • M • Civil Code 1977 (Book Three, Owner Rights) World Bank Assisted Resettlement Policy Framework.” Final Report. • Land Acquisition Law, 2017 (amended February 26, 2018) Afghanistan Land Administration System Project (ALASP), Islamic Republic of Afghanistan, Kabul. • Land Management Law 2017 (minor amendments in 2018) World Bank • Law on Pasture and Grazing Land 2000 • Law on Minerals 2014  pril 2013. OP 4.12 - Involuntary Resettlement Operational Manual. • A Washington DC. • Law on Water 2009  017 Environment and Social Standard 1, 5, and 7, in World Bank • 2 • Regulation on Registration or Urban Informal Properties, 2017 Environmental and Social Framework, World Bank, Washington, DC.  residential Decree on the Identification and Allocation of Suitable • P  une 2018. Guidance Note for Borrowers. ESS1, 5, and 7. First Edition, • J Land for the Re-Integration and Construction of Affordable Housing for World Bank, Washington DC. Returnees, Displaced Persons and Families of Martyrs of the Country’s Security and Defense Forces, Decree 305, 2018 • Draft Rangeland Law, May 2012 68 69 Annex 1: Contents of OP 4.12 and Annex 2: Old and New Objectives of ESS5 World Bank Standards on Involuntary Resettlement Contents of OP 4.12 - Involuntary Contents of ESS5: Land Acquisition, OP 4.12 - Involuntary Settlement 2013 ESS5 - Land Acquisition, Restrictions on Resettlement (2013) Restrictions on Land Use, and Involuntary Land Use and Involuntary Resettlement Resettlement (World Bank ESF 2017) 2017 Introduction (para 1) Introduction and Objectives, Scope of Objectives Objectives Application • Involuntary resettlement should be  • To avoid involuntary resettlement, or  avoided where feasible, or minimized, when unavoidable, minimize by exploring exploring all viable alternative project project design alternatives. Policy Objectives (para 2) OFWM Project, Ministry of Agriculture designs. • To avoid forced evictions. Impacts Covered (para 3–5) Requirements Required Measures (para 6–13) • General (para 10–25) • W  here not feasible to avoid •  o mitigate unavoidable adverse social T Eligibility for Benefits (para 14–16) • Eligibility resettlement, resettlement should and economic impacts from land • Project Design be conceived and executed as acquisition or from restrictions on land Resettlement Planning, Implementation and • Community engagement sustainable development programs, use by Monitoring (para 17–24 • Grievance mechanism providing sufficient investment providing timely compensation for loss •   • Planning and implementation resources to enable persons of assets at replacement cost, and displaced by the project to share assisting displaced persons in their •   project benefits. Displaced persons efforts to improve, or at least restore, Resettlement Instruments (para 25–31) • Displacement (para 26–36) should be meaningfully consulted their livelihoods and living standards, • Resettlement Plan • Physical displacement and should have opportunities in real terms, to pre-displacement • Resettlement Policy Framework • Economic displacement to participate in planning and levels or to levels prevailing prior to the • Process Framework • Collaboration with other responsible implementing of resettlement beginning of project implementations, agencies or subnational jurisdictions (para 37) programs. whichever is higher. Assistance to the Borrower (para 32–33) • Technical and financial assistance (para • To improve living conditions of poor or  38) vulnerable persons who are physically displaced, through provision of adequate Annex A: Involuntary Resettlement Annex 1: Involuntary resettlement instruments housing, access to services and facilities, Instruments • Resettlement plan and security of tenure. • Resettlement Plan • Resettlement framework •  isplaced persons should be assisted D •  o conceive and execute resettlement T • Abbreviated Resettlement Plan • Process framework in their efforts to improve their activities as sustainable development • Resettlement Policy Framework livelihoods and standards of living or programs, providing sufficient investment • Process Framework at least to restore them, in real terms, resources to enable displaced persons to to pre-displacement levels or to levels benefit directly from the project, as the prevailing prior to the beginning of nature of the project may warrant. project implementation, whichever is • To ensure that resettlement activities  higher. are planned and implemented with appropriate disclosure of information, meaningful consultation, and the informed participation of those affected. 70 71 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Annex 3: Review of the LML as Endowed land (or Waqf) usually comprises small plots donated for religious Relevant To Compulsory Land and social service uses. These cannot be owned or possessed by either the endower or the endowed, sold, gifted, or inherited, and may only be used for the purpose for which the land was endowed. Acquisition Private land is described as a parcel or parcels of land owned by real or legal persons based on valid and legal ownership documents (LML Article 3). How confirmatory title is obtained is described later. The more complicated categories relate to state and public land. The state The LML of 2017 (as amended in 2018) is important to compulsory acquisition lawfully owns and/or directly controls the majority of lands, possibly up to 75 in Afghanistan as it lays the foundation for determination of land rights, and percent of the country. The state is the registered owner of state lands and which are due compensation at compulsory acquisition for public purposes. the legal authority over public lands. The main distinction between the two is The LML does this through establishing that state land is vested directly in the state, and includes lands it may allocate • Categories of landholding (land classes); to institutional or private ownership, for special purposes such as settlement schemes, and for public purpose developments. Public lands, in contrast, are • Registrable constructs and terms of landownership; defined as unowned and unownable. However, government may also allocate these lands to projects of public interest, under leasehold or comparable • Evidence required for legal acknowledgement of rights; arrangements (see below). • Mechanisms through which vulnerable groups may secure land; and State land is another term for government land. Its definition was amended in •  rocedures through which lands are mapped and rights to parcels P the LML in 2018 to read: adjudicated and recognized (survey and clearance). State land is a land in urban or out of urban area which is registered The LML is also important to compulsory acquisition given that the above under the name of the state and is recorded in the land book as state processes of rights identification are to be applied in areas identified for land. The government manages the state land where it has not been yet compulsory acquisition. Information and critique from a social soundness allocated and used for a specific purpose (Article 3 (53)). standpoint is provided below. The original definition is more instructive, replaced only because it was thought Afghanistan Legal Instruments to be too long for a definition clause, with instruction that its content could be integrated into other articles as relevant. 1. Land Classes State land Includes all orchard and irrigated land that has been registered The LML-defined land classes include state, public, private, and endowed or identified as state land following the land clearance process; all land. rainfed, virgin, arid land, deserts, mountains, plateaus, hills, swamps, forests canebrakes, grassland, wetland, upper land, and all other land 72 73 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition that is registered in the state land registries or identified as such following of 50 years for cultivated land, and 90 years for virgin and arid land (Article 74). the land clearance process; lands which, following the land clearance It is presumed that where assisted resettlement is applied through compulsory process, is not identified as public, private or endowed land; land and acquisition, state land will also be the source of these schemes. property which have been identified and registered in the state land Public lands are defined as: registries as state land; and land which has been in the state’s possession for more than 40 years prior to the enforcement of this law (Article 3). Lands not owned by the state or any person, used collectively by the public, not individuals, and monitored and managed by the government The broad scope of state land is striking, as is its open-ended nature. As not (Article 3). No real or legal person, including the state, shall occupy, sell, all state land has been identified, this will be done through systematic or spot purchase, distribute, exchange, mortgage, lease, or divide public land surveys and identification procedures. Realistically, this will be launched mainly (Article 11 (1)). Only projects in the national interest may be implemented in response to requests for lands for public purposes, and second, in already on public land following approval from the Cabinet (Article 11 (2)). committed formalization of informal settlements. Public land is subdivided into public grazing land and special grazing land. The only standard against which state land is to be defined in the law is that The former is defined as public lands including pasture that can be used by all it is already, or will be, recorded in land books and registers. The grounds citizens for the purpose of grazing livestock in accordance with the law (Article upon which this will be decided by the survey and clearance teams are not 3). Special grazing land is defined as: legally described. It is a matter of concern that Article 18 (8) of the LML signals determination not to revisit the legitimacy of lands arising from maps drawn Public land located within the boundaries or a village or adjacent villages up in the 1960s which indicate state lands. It is possibly over-interpreting the which is used for grazing and collective use such as harvesting crops, longer definition clause to suggest that it is helpful to citizen land rights that parks, playgrounds, graveyard, mosques, Eid congregation places, local state land is implied to be a residual class, identified only after private and bazaars and for the future development of the village or villages (Article endowed lands have been identified. 3). Certain state lands cannot be sold or transferred, including those designated MUDL is to identify and register both classes of grazing land. MUDL is to for state projects, city master plans, forests, grazing lands, mining, and manage special grazing lands, although the law also says these are to be historical monuments or protected areas (Article 64). Other lands are available protected by respective villages (Articles 12–13). The law pledges grazing for distribution. In addition, state land is to be the source of suitable land to land regulation. be allocated for farming or housing for returnees, IDPs, and families of martyrs of the country’s security and defense forces, as laid out in Decree 305 of 2018 2. Overlapping Community and State Claims to Grazing Lands on this subject. These people numbered several millions in 2019. Further, While by no means entirely new, this designation of all grazing land as the LML retains commitment from the 1960s that houses and farms should public property poses challenges for communities which claim to historically be distributed to the landless, land-poor farmers, and workers (Article 54). customarily own adjacent grazing areas as communal village grazing lands, Successful applicants must start farming immediately and pay the price in five and some remoter but accessible higher pastures as shared clan lands used installments over five years (Articles 55 and 58). State land may also be leased seasonally. These have been acknowledged in the law (1965, 1970, 1993, 2000), to nationals and foreigners for private sector investment purposes, for terms always with the caveat that no pasture may be sold. Provision for categories 74 75 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition of private, community, local, and public pastures were a prominent feature of Systematic identification of private, endowed, state, and public lands drafts for a revised rangeland law between 2003 and 2012. (clearance) is some way away in Afghanistan. Nor does the law make registration compulsory. In practice, dentification will most actively advance where planned The reluctance to surrender any pasture to community ownership, even on public purpose projects involve expropriation. sustained conditions that these may never be sold, transferred, or used for other than grazing, also featured in debates around new rangeland laws. There is an implication in Article 39 (1) that clearance will only be applied where Ultimately, no new rangeland law has been enacted as of April 2019. Special private or endowed lands are known to exist. This could again defeat the grazing lands in the LML are most similar to the ‘village pastures’ declared interests of those who rely most upon logically shared off-farm resources such to exist by the Taliban (2000). However, these have shrunk in conception to as pastures and forests. This is aside from the seasonal access rights to alpine only the most immediately attached pastures to a village, and meshed with pastures granted by the King of Afghanistan over a century ago to nomadic other types of village communal lands, such as local community public service Pashtun pastoralists (Kuchi), and pastoral rights to areas now reaching to the areas earmarked for bazaars. All these areas are made public lands under edges of cities and towns as these expand and multiply. government control. 4. Collective Property and the National Policy 2017 Remoter local pastures, also traditionally owned and managed by identifiable Land laws are to be guided by the National Land Policy. LML 2017 does communities who practice transhumance if not nomadic migration to much not meet policy commitments to formally acknowledge customarily owned remoter pastures, have been absorbed into general grazing lands, available collective lands. In 2007 and now in the 2018 National Land Policy, tenure for all citizens, also potentially available for “projects of national interest.” classes are listed as state, public, private, and community land. This centralization of all lands used for grazing is inescapably dispossessory. Community land is defined as: This is not unique to Afghanistan, as the value of such lands in many regions sharply rises for mineral and other large-scale exploitation. This trend, also … any land or pastureland lawfully or customarily held, managed and affecting forested lands, is well documented and currently absorbing millions used by a specific community. To promote tenure security and sustainable of untitled communal lands annually. Yet this trend also confronts heightened utilization of land resources, the government shall map and document consciousness of customary rights and their role in socio-cultural and livelihood agricultural land or pastureland owned and managed by a specific survival and determination to be recognized as lawful owners on a collective community and incorporate such land into the formal land registries (2018 basis. Policy Statement 5.1. (d)). It is not surprising that well over half of all states have introduced laws to help That is, the policy intention is not only to acknowledge that these properties collective owners secure these areas as properties. This is a process which exist, but also to register them as collectively owned, and as such easily made obviously does not exempt such owners from compulsory acquisition but subject to special regulations including never being transferrable or sold, and places collective owners on a more equal footing with individuals and families community owners obliged to manage these in sustainable ways. Officials may who more typically own buildings and farms. assume meeting policy requirement, to the extent that Article 14 of the LML requires special grazing lands to be registered, governed by regulations (yet 3. Identification of Owners will be Mainly for Compulsory Acquisition to be drafted), and subject to prohibition against occupation, sale, purchase, 76 77 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition gift, or subdivision (Article 13). All that is missing here is recognition of these desert, virgin, arid, uncultivated, rocky, or upper wetlands have been lands as community properties. recorded as state land, notwithstanding individual claims to the same land Technically, the LML does make provision for shared land at Articles 3 and 33. However, this refers to shared ownership of a building or farm by family • A valid title deed issued by ARAZI members. There is also some cognition of community lands in legal recognition • A  customary document (deed) declaring sale, purchase, gift, exchange, that where land is recorded in the name of a tribe, heads of a clan, village chief, settlement, or marriage certificate, and so on, containing thumbprints of or any other representative, these are to be individualized in accordance with both parties and witnesses how usufructs over portions have been distributed (Article 48-49). Again, this refers to cultivated areas, mainly to presently shared rainfed areas. Overall, •  property dealer’s document, certifying thumbprints and/or signatures A the LML fails to acknowledge or provide for socially collective (as compared to of both parties (Article 18). corporate) entitlement, such as could be useful in respect of shared amenities, water sources or most relevant, historical and present community grazing All must be recorded and registered in the archive of the court or the land lands. ministry’s land registry, registered with tax authorities if the land is taxable, and shown to not be forged or illegally altered and invalidated by other 5. Acquisition of Title documentation. Chapter 3 of the LML lists legally valid documents testifying to landownership: The options provide diverse documentation as evidence, reflecting requirements •  n official court document (a deed of purchase, gift, exchange, and so A at different stages in the history of land registration, and the role of courts on) in producing deeds. Considerable work will be needed to verify documents. Despite the emphasis on documentation, it is limited in practice, possibly • A  registered court decision on ownership which does not involve state, most abundant in the form of tax receipts which do no more than indicate the public, grazing, or endowed lands land area being taxed, and believed not to have been systematically issued since 1975. Overall, less than 30 percent of urban properties and less than 10 •  state decree or official document showing purchase of state land by A percent of rural properties have been registered by state institutions including an individual and registered with the tax authority the courts. •  tax document, registered in both the registration book and with the A 6. Assisting Holders without Formal Documents tax authority Article 19 is more useful for millions of Afghans who lack documentation of • A water right document evidencing ownership of a land area any kind, even tax receipts. As in past land laws, they continue to be eligible • A registered official property document for registration if they are able to demonstrate occupation including by forebears for 15 years prior to April 1978 (that is since 1963), should neighbors • A court property document give supporting testimony. These parcels must also have seen undertaken construction or farming use, and the parcel must be free from any validly •  A validated map from the 1965–1978 period showing that parcels of documented evidence of ownership by others. 78 79 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Should these conditions be met, the possessor is eligible in LML 2017 for free only those persons who do not possess documents but possess parcels since grant of land up to five jeribs (1 ha) of grade 1 farmland or its equivalent. S/ 1963 (themselves or their forebears) have the right to secure a formal title for he may purchase the rest of his/her land at the current market rate—unless a this land? Or was the intention of the law (and indeed, the spirit of the Civil government project requires the land. In that case, purchase of own lands may Code) that any person who can demonstrate uncontested occupancy for 15 not exceed another five jeribs (1 ha). If the possessor cannot afford to buy the years is eligible, and that this includes persons who have been in this situation land, s/he may lease from the government. Should the government invalidate since 1963 due to the troubled times and the fact that few had opportunities the possessor’s right, the plot will be categorized as state land. to secure even tax documents after 1975? Either way, handling of adverse possession is important enough to warrant clarification by MUDL as to how The size of lands referred to suggest that Article 19 refers to rural lands. this condition will be applied for document-less owners. (Article 112 implies that urban matters will be covered separately) While superficially generous, potentially millions of rural poor could lose land through 8. Other Landholders May Lose Rights at Survey and Clearance formalization, should this become obligatory—but, at least, not all their land, There are others without documentation who will find it difficult to prove receiving a free grant of one hectare of their land. Realistically, this may not occupation for a long time. Many landless and land-poor, through civil conflict be an issue, as poor families are unlikely to hold more than one hectare of and social change, no longer live where they were tenants, workers, or de farmland, this being scarce in Afghanistan, although this threshold can be facto serfs prior to the conflicts, but in due course have found land for a house easily reached in rainfed lands. or small farm in another area. This is often through relatives and/or including 7. A Problematic Approach to Adverse Possession assistance from governors, militia leaders, or district officials over the years. Proof of occupancy of a parcel by local testimony must show that the parcel was There are also many others who will now discover that their parcels fall on possessed by the family in 1963, over half a century ago. This is supposedly lands defined as state or public lands. These Afghans will not secure registered justified on the basis of the Civil Code’s statement of Extinction of Rights Due acknowledgement of ownership or even use, due to classification of these to Lapse of Time, which reads as follows: lands as state or public lands. • Rights shall not extinguish due to lapse of time. 9. Restitution Commitments May Also Jeopardize Formalization of Rights •  laim of rights, on any basis, against disclaiming person shall not be C In addition, there are beneficiaries of farm parcels distributed from landlord heard after lapse of fifteen years… (Article 965). lands during the 1970s and 1980s who have not yet fully paid for those lands, but who may receive temporary ownership certificates (Article 22). However, To an average user of the law, this suggests that a land claim may be heard these too risk being taken away from these former tenants/workers, through within 15 years of occupancy, a reasonable period for establishing adverse reinforced commitment in LML 2017 to restitute such lands to their former possession (12 years is more common). But it seems that as ‘normal times’ landlords or descendants who did not receive compensation (Article 51). It ceased with the Revolution in April 1978, the period of 15 years prior to this is not known how many such claimants are there, but the issue is substantial event is taken. To recall the English translation of Article 19 (4): “The owners enough to be retained in the present law. An affected present-day owner of adjacent parcels of land certify that the occupant has lived on the land for may request payment for the land at the current market price of redistributed more than 15 years prior to 27 April 1978.” Is the LML really stipulating that land. But this article does not include obligation to assist him/her to find an 80 81 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition alternative place to live or farm. clearance delegation appointed at national and provincial levels (Article 40). It is the clearance team’s responsibility to assess all land documents including tax All the above will come to pass where such affected persons are unable to reach documents (available up to 1975), to subdivide divisible shared farmland, to thresholds during property identification as preface to compulsory acquisition. divide lands of the deceased among their heirs, and to take note of absentee 10. Survey and Adjudication owners, with reminder that their absence does not preclude their receipt of compensation (Articles 27 and 44). The process concludes with intended Chapters 4 and 5 of the LML cover the processes of cadastral survey, verification issue of title deeds to owners, based on georeferenced and mapped parcels, of ownership, and clearance (Tasfiya). Cadastral survey is to verify information with boundaries, land type, grade, and identified owners (Article 50). Fees on existing maps and in registers and to produce maps for land classes and for clearance and survey are not charged when the purpose is to prepare the parcels, and to measure and grade lands (especially farmlands, which command ground for compulsory acquisition (Article 41). different levels of tax). A cadastral survey may be conducted (note, not ‘will’ be conducted) when there is an official request to identify whether land is state, Social justice concerns that arise from the LML are that there is no explicit legal private, endowed, public grazing, or special grazing land for development of requirement for tenants, sharecroppers with rights, workers with residential public projects (Article 29). The cadaster team is to give residents 15 days’ rights, or seasonal use rights holders to be recorded. Nor is there indication notice to be present at their plot, along with neighbors, the village leader, and in the law that family members and especially women are to be consulted. a representative of the local council (Article 27). The process of engagement No provision is made for either the survey or clearance teams to identify with affected persons is not specified in the law, nor in a procedure breaking collective possession of lands outside the immediate settlement and farming down Tasfiya into 15 steps (Role and Responsibility of Institution Towards area. Additionally, failure to assess the legitimacy of existing records and maps Land Clearance, Land Valuation and Land Acquisition/Resettlement). Step showing state land, defined in the past without local participation, could be 5 requires the property owner and affected persons to be informed of the unjust. expropriation, Step 9 requires information be disseminated widely, Step 10 11. Urban Properties in Informal Settlements that ownership documents be submitted to the clearance team, and Step 14 requires completion of a form with information on each parcel. However, Under directive from the Constitution (Article 141), city affairs are managed these steps do not stipulate that a field mission to the site will be called and by municipalities, with their institution and rules laid out in the Municipalities affected persons alerted, nor whether a local community committee will be Act, 2000. Ever-multiplying municipalities are to follow the LML, LAL, and formed to ensure information is complete and fairly obtained from owners. other land laws on tenure and land administration matters. The Municipalities The guideline may have since been revised and formalized but the consultant Act, under revision for years, with only one significant regulation issued (on was unable to ascertain this. Cleaning Tax), did open the way for those who pay the required fees to receive documentary evidence of occupancy. The LML does state that the results of the survey are posted in the community, in the form of a map of the area and list of owners for each parcel mapped and Commitment to regularize the occupation of people living in unplanned graded (Article 31). Courts are directed to resolve disputes and their decisions settlements positively exists. Implementation is provided the Regulation on are final (Article 32). The team installs boundary markers, the maintenance Registration of Urban Informal Properties 2017. The instrument of regularization of which is the duty of each village council (Article 35). Land clearance is is a Certificate of Occupancy. These will be issued only for residential plots conducted alongside survey, and the survey team is a component of the land used for shelter. All other land in informal settlements will be mapped and 82 83 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition registered, including empty land parcels and protected areas. Up to 300 m2 adequate water supply, and the site not vulnerable to flooding, avalanches or will be registered to the occupant where the land is state land. landslides, with a topographic slope that does not exceed 15 percent (Article 9). A less automatic right is that the occupant may purchase a further 500 m2, presumably this being land s/he already occupies. Land above 1,000 m2 will Considerable assistance is to be given to the resettled families (Articles 10– be repossessed by the state without compensation. Although the Certificate 12). Those allocated plots and who construct homes on plots will be issued of Occupancy is not an absolute entitlement, the regulation states that the title deeds (Article 13). Returnees, displaced persons, and so on, thus have an occupant cannot be deprived of the land, unless required for public purposes, advantage over long-term residents on state or public lands, who may never and in which event, this will be executed under LAL 2017 and be eligible for acquire titles. Nevertheless, should the law catering to displaced persons be compensation. genuinely applied, experiences will set positive precedents which all Afghans affected by compulsory acquisition could, in due course, legitimately demand Another positive change in the regulation is that Certificates of Occupancy will be also applied to themselves. list the names of spouses, who shall co-own the right of possession. This does not appear in the LML. Conclusion Possessors are not permitted to lease, rent, mortgage or lend the certificated In summary, the LML provides a mixed foundation for compulsory acquisition residential property. The certificate costs 1,000 Afghanis (approximately US$13). and resettlement. Positive features include flexible eligibility for formal Copies of the certificate are deposited with the Municipal District Office and entitlement including of customary owners, special treatment for returnees the ARAZI provincial office. The regulation makes ARAZI responsible for all and displaced persons, and sustained commitment since the 1970s to make registration tasks, assisted by the municipality. The municipality is bound to government lands (state land) available to landless workers and tenants (if provide information on local market prices of land, distribute the Cleaning Tax they can afford it). Plans for systematic survey and identification of rights is Books to all certificated occupiers, and to monitor the process. There is no developed further in the LML than in the past provision for resettlement of those who cannot afford to buy their occupied plots, irrespective of how long they have resided there. Less positive provisions pose difficulties for projects aiming to maximize social inclusion and justice as a basis for sustainability. Vulnerable groups such as Relevant to Vulnerable Groups those without documents still have a more difficult path to secure lands, many will lose some land through formalization if they have historically lived on state Presidential Decree 305 of 2018 On the Identification and Allocation of or public lands, unfair classification of customary lands as state lands in the Suitable Land for the Re-Integration and Construction of Affordable Housing past will not be revisited, and wholesale confirmation of all grazing lands as de for Returnees, Displaced Persons and Families of Martyrs of the Country’s facto government property formally dispossesses customary owners of even Security and Defense Forces focuses upon the needs of these groups. The the most immediately used pastures, considered their collective property under decree aims to provide living places for these group, many of whom are in customary norms in most parts of the country. They will however be able to urban areas. Resettlements may not be located in a watershed, the land must continue to use these, under government regulation and management. Urban be clear of landmines and contamination, the site near to existing or potential dwellers in informal settlements have privileges under a 2017 regulation which livelihood or employment opportunities, with access to a planned or existing do not appear in the LML. IDP and returnees may also make gains in terms of 84 85 Annex 3: Review of the LML as Relevant to Compulsory Land Acquisition land access not availed by others. While landlords are assured restitution if they Annex 4: Policy Statements in AF National Land Policy 2018 Directly so wish for lands they lost during redistributive reforms in the 1960s, landless and land-poor persons granted those lands are not so well protected, receiving the value of the lands they now hold but no assistance for resettlement. A fresh approach to determination of both land classes and rights by LML Relevant to Compulsory Acquisition 2017 would have been welcome. On the former, injustices are portended by confirmed and now wholesale cooption of grazing lands as unowned property, not the customary reality in many cases, compounded by uncritical revisiting of what are held to be state lands. The lack of a community-based approach Under I Introduction to land class and land rights identification, reviewed and aided by technical services of the state, is surprising. This has been successfully piloted in rural and 4. Land Policy Principles especially urban areas in Afghanistan, and immense effort and investment has been made over the last decade toward devolutionary governance, including  ny citizen’s or group’s right to access to land may not be affected (d) A creation of village and neighborhood councils as self-governing units as far as by any legal or administrative hurdle on account of personal or group reasonably possible. definition such as gender, religion, language, ethnicity, or marital status. The general impression left by the new LML is that it has moved forward but  romote the principles of transparency, accountability and community (f)  P along a traditional trajectory relying upon inflexible dictates, and without participation at all levels of land administration and management. the practical reach throughout the country to test its applicability or make  ll forms of legitimate user rights to land should be formally recognized (h)  A this workable. The law also does not seem to absorb present-day reality in and be protected by law. which over half the rural and urban population have fallen below the poverty line, and uncounted millions are landless. Cherry-picking attention to this by Information on landownership and user rights should be generally (i)  providing distinct opportunities for returning refugees and IDPs is not bad per accessible to the public at designated offices. se, but could be unfair, and sidesteps the need for comprehensive overhaul as to how lands are categorized and owned, building upon what exists. This Under II Policy Context and Statements includes practical provision for collective and family tenure, both of which remain missing. 5.1. Land Tenure Classification Land tenure in Afghanistan shall be classified as state, public, community, and private and the definitions of each classification will be clearly stated and consistently applied throughout the body of land related laws. (a) State Land: State land refers to urban or rural land that is recorded in the name of the state 86 87 Annex 4: Policy Statements In AF National Land Policy 2018 Directly Annex 4: Policy Statements In AF National Land Policy 2018 Directly Relevant To Compulsory Acquisition Relevant To Compulsory Acquisition and that the pertinent government authority manages on behalf of the public 5.4. Community Land Management but has not yet been allocated and used for specific public purpose. The government shall establish clear legislative rules and procedures to govern (b) Public Land: the recognition, protection, and registration of pastureland or any other land owned by specific communities. The legislative measure shall envisage Public land refers to all urban and rural land allotted for a specified public use. participatory processes in identifying and recognizing community ownership. State land allotted for large-scale development projects implemented under public-private sectors partnership will also constitute as public land. 5.5. Insecurity of Tenure in Rural and Urban Areas (c) Private Land: (a) The government shall draw clear distinctions between various types of tenure insecurity and provide appropriate legal and administrative solutions for the Private land refers to land owned by any private person or group of private various forms of insecurities. To resolve the dichotomy of the complex and persons. diverse formal system and informal tenure systems requires a continuum of (d) Community Land: tenure categories embodied in the legal framework. Community land refers to any land or pastureland lawfully or customarily held, The constitutional guarantees for security of tenure shall be observed. In (b)  managed, and used by a specific community. To promote tenure security the interest of equity and justice, no one may be deprived of property and sustainable utilization of land resources, the government shall map and rights except in accordance with the law, and no law may permit arbitrary document agricultural land or pastureland owned and managed by a specific and forcible deprivation of property rights. community and incorporate such land into the formal land registries. The state shall take appropriate legislative and administrative measures to (c)  5.2. Land Tenure Management foster conditions which enable citizens to gain access to land on an equitable basis. In particular, there shall be no discrimination with respect to tenure (a) Protecting Rights in Land: security on the basis of ethnicity, gender, religion and social status. The government shall promote and protect the security of tenure of private The government shall take concrete legal and administrative measures (d)  landowners and other legitimate interests in land from usurpation or wrongful to promote the principles that all individuals who hold rights to property expropriation. be afforded the quiet enjoyment their properties and that all legitimate property rights are be protected by law. (b) State and Public Land Management: The government shall legislatively establish alternative forms of tenure such (e)  As a custodian of state and public land, the government shall manage, conserve, as private ownership, usufruct, leasehold, and communal ownership for the and use state land in a planned and judicious manner in accordance with legal benefit of agricultural workers, and rural and urban dwellers. The availability principles, rules, and procedures for managing, allocating, conserving, and of these legally enforceable tenure alternatives will aim to ensure more distributing state and public land. The government will distribute state land accessibility to secure tenure. equitably to the landless and for other purposes that promote economic and social growth for the entire nation. 5.6. Land Expropriation and Compensation 88 89 Annex 4: Policy Statements In AF National Land Policy 2018 Directly Annex 4: Policy Statements In AF National Land Policy 2018 Directly Relevant To Compulsory Acquisition Relevant To Compulsory Acquisition •  roperty rights may only be expropriated under defined legal procedures P Land and Mining 5.11. and for defined legal purposes. … It is also expected that the intensification of investment in the mineral • T  he legal framework on expropriation will be revised to provide that the extractive industry will be accompanied with serious social risks pertaining pertinent authority may exercise its power of eminent domain for the to land tenure and land use management. Loss of agricultural land to the purposes of public use and in the interest of the public in accordance with extractive industry thereby negatively impacting the livelihoods of those who clearly defined legal principles, rules and procedures. The revised law depend on agriculture and ensuing forced displacement or dislocation are shall clearly and strictly define the term ‘public use’ and also provide for among the most grave land-related social risks that call for responsible mining expropriation procedures that are efficient, transparent and accountable. and equitable safety measures to resettle and justly compensate those affected by mining operations. •  he revised law shall provide that the power of compulsory acquisition T be exercised by the government through specifically designated Policy Statement government authority. The government will put in place just, efficient, and equitable legal processes •  he revised law shall provide for the payment of fair, just and timely T for land acquisition, resettlement, and compensation schemes in relation to compensation to persons whose legitimate interest is affected by individuals and communities affected by mining operations. expropriation. The people affected by expropriation may substantiate 5.17. Land Valuation their claim to their property either by formal or customary proof of ownership. The government, through ARAZI, will introduce a sensible, transparent, (a)  and standardized property valuation system that assesses property •  he revised law shall confer pre-emptive rights on the original owners or T value based on the market value of the immovable property. As far as their heir(s) in the event that the public purpose or interest justifying an practicable, the market value of the immovable property will be assessed expropriation measure fails or ceases to exist. based on values derived from comparable sales evidence, and all other 5.7 Land Expropriation and Resettlement matters that willing, knowledgeable, and prudent buyers and sellers acting without compulsion or connection to the other party would take In the event that an expropriation measure would affect the legal interests (a)  into consideration in any such transaction. These matters would include of an entire community or significant proportion of a community in a but not necessarily be limited to the potential and actual economic use of village or urban areas, the pertinent government authority shall ensure the land, and its location and site improvements such as roads, sewerage the resettlement of the people affected by the expropriation measure. and drainage. (b) The government will formulate and issue a resettlement policy or common ARAZI will update its land value information continually, and reevaluate (b)  guidelines that will be followed by all pertinent government agencies it periodically, that is, at least every five years. … Furthermore, each land involved in land acquisition and resettlement matters. The policy or acquisition will require individual valuations as at the date of acquisition, guidelines will seek to promote timely, transparent and accountable and all the relevant heads of compensation and other factors as articulated resettlement practices. in the relevant legislation. 90 91 Annex 4: Policy Statements In AF National Land Policy 2018 Directly Annex 4: Policy Statements In AF National Land Policy 2018 Directly Relevant To Compulsory Acquisition Relevant To Compulsory Acquisition 5.18. Regulation of Pastureland knowledge can be effective vehicle to re-identify local ownership. Pastoral ownership is unclear and formal law ambivalent as to whether Policy Statement pasturelands are state-owned, public, or communal. Land ownership may be documented through a process of property (a)  Complex disputes or frictions over issues of ownership and access rights (c)  clarification process conducted both at the formal and community levels. to pasturelands will be examined at the provincial level and traditional use Recognition shall be given to customary documentation and legitimate b)  rights of settled farmers and pastoralists will be established and respected. traditional property rights affirmed by local knowledge, in accordance with ARAZI shall reactivate national land surveying land settlement operations (d)  a law to be issued to govern the regularization of property rights. in order to clarify rights to land. To address the problems associated with anomalies in land records that (c)  5.19. Conversion of Agricultural Land to Urban and Peri-Urban Status often give rise to multiple claims, the government will gradually establish conclusive proof of landownership that will be substantiated by registered The government shall take appropriate measures to protect agricultural land title, which will be guaranteed by the state. The proprietor who holds land contiguous to peri-urban and urban areas from encroachment by urban state guaranteed land title will be immune from claims that are inconsistent development. … Appropriate measures must be introduced which both protect with the rights reflected in the registration records, except when the right arable land from unplanned conversion and which supports its sustainability. to land was registered fraudulently. 5.21. Protection of Property Rights Under V. Human Rights Issues The national and provincial governments shall take measures to protect citizens including residents of informal settlements from arbitrary and forcible eviction. 15. Bias in Land Allocation Eviction and relocation of unplanned settlement residents shall be undertaken with community involvement only for necessary spatial rearrangement which In accordance with the Constitution and Islamic law, the government shall take should take effect in accordance with the interest of the public. appropriate measures to ensure the right of a man and a woman to acquire and hold land independently, share equitably as a family member in family Under III Land Administration Issues and Policies owned property and rights of inheritance. 13. Proof of Rights to Land In most cases, proof of land rights is based upon tax records, ARAZI registration, customary deeds, formal deeds and local knowledge. Some formal deeds are suspect or fraudulent; in some areas registered deeds have been destroyed during the years of conflict. Under such a chaotic property rights situation, it is imperative for the government to establish a realistic and effective method of property clarification process. Best practices and the reality in the country inform that community-based property adjudication processes that utilize local 92 93 Annex 5: Compliance of the LAL with Social Requirements under ESS1 on Social Risks and Impacts Annex 5: Compliance of the LAL with Identification of individuals and groups as already disadvantaged or vulnerable Social Requirements under ESS1 on is required, and as relevant, differentiated measures developed (para 29). The Environmental and Social Commitment Plan (ESCP) is a key result of Social Risks and Impacts required assessments and respective social and environmental due diligence by both the borrower and the World Bank, and will form part of the legal agreement between the two (para 36–40). The plan is to be precise. This includes a timetable for monitoring the social performance of the project. For High Risk and Substantial Risk projects, documentation as to how affected ESS1 covers both environmental and social risks but only the latter is covered persons or communities have been informed of plans and engaged is required here. The fundamental instruction of ESS1 is for social assessments to be (para 52). carried out, to identify, minimize, and mitigate social risks. ESS1 also requires Aside from the Environmental and Social Impact Assessment (ESIA), an audit, sufficient adjustments in project design and implementation to avoid adverse cumulative impact assessment, social and conflict analysis, and management impacts falling disproportionately upon the disadvantaged and vulnerable. plan are advised tools or frameworks within which potential or evolving issues Assessment, management, and monitoring of social risks and impacts are to are assessed and remedy or mitigation applied. be activated throughout the project life cycle. All aspects covered in ESS5 The borrower with the World Bank is to decide whether to use the borrower’s and ESS7 are mentioned as relevant to social impact and the importance of frameworks or the World Bank’s frameworks, with preference for use of the stakeholder engagement noted as an integral part of assessment, in accordance former to enhance local ownership and replicability (para 19). Analysis of the with ESS10. country’s policy, legal, and institutional framework are likely to be necessary, The hierarchy as established throughout all the frameworks is elaborated, in including rules and regulations which will be applied in the project area and requiring inconsistencies or shortfalls which will impede minimization of mitigation of risks identified (Guidance Note 20.2). • Anticipation and avoidance of risks and impacts; The World Bank should also bring relevant other experiences of its own to bear • Minimization of these where avoidance is not possible; and work with the borrower to minimize these. Specific measures may need to be identified to limit low participation of vulnerable affected persons (Guidance • M  itigation, including possibly measures to assist affected parties to Note, Footnote 28). Tenure issues may need special attention to ensure that improve or at least restore their livelihoods; and legitimate rights (including collective, subsidiary, and women’s rights) are not •  here significant residual impacts remain, to provide compensation for W avoidably compromised by the project (Guidance Note, Footnote 29). the value of losses (para 27). The Land Acquisition Law and ESS1 Projects adjudged to be high risk for social impacts require engagement of The LAL is limited on provision of social risk assessment or planning, other independent experts to assist in planning or to advise the project (para 33). than positively stating that the implementation authority shall “Study and 94 95 Annex 5: Compliance of the LAL with Social Requirements under ESS1 on Annex 5: Compliance of the LAL with Social Requirements under ESS1 on Social Risks and Impacts Social Risks and Impacts evaluate environmental and social impact resulting from implementation of the manner. This does not mean that political will is lacking or that particular project” and “Prepare and develop project plan according to the law” (Article projects cannot achieve this. It does mean that lenders, where involved, will 8). The Government of Afghanistan has also accepted legal responsibility for need to be specific as to requirements, should their own frameworks require resettling persons affected by major national expropriation projects where close attention to social concerns, as fleshed out in the World Bank’s ESS1. they collectively lose their residences (Article 38). However, the law is clear that the privilege accorded in the resettlement project is eligibility for receiving a residential plot (Article 40). The law does not state that farmland or rangeland access will be provided, which is critical for rural communities. This could be countered in practice by the provision in Article 31 which states that compensation for owners or lawful possessors will be in the form of allocation of equivalent land inclusive of residential, cultivated farm, and commercial building losses (if no land is available, compensation in cash). Those who built shelter on government property (state and, in effect, also public land) shall only be paid the price of the building should they have possessed the building for at least 10 years and own no other residence in the city. They are also listed as eligible to buy a plot in planned areas (Article 32). This visibly only applies to urban areas. The LAL pays no explicit attention to vulnerable or disadvantaged groups outside of the classification of affected persons as either owners, possessors, or other affected persons, and the law poorly addresses the rights or interests of those who depend fully or partially upon public or state lands. Their losses are less equitably compensated than for those whose lands and resources are limited to lawfully recorded ownership or possession of residential and farming lands in the private land sector. However, the LML does provide for landless persons to acquire land, and Decree 305 more comprehensively provides a legal obligation to provide lands and associated support services for returning refugees, IDPs, and family members of martyrs lost to fighting for the country’s security and defense forces. In conclusion, the LAL is weak in legal commitment to attend to social risks and impacts of compulsory acquisition projects in a fully inclusive and effective 96 97 Annex 6: The Land Acquisition Law and World Bank ESS7 on Indigenous Peoples Annex 6: The Land Acquisition Law present but to unknown levels. Clearly large-scale rural projects which halt and World Bank ESS7 on Indigenous or limit passage and seasonal use of lands by nomads will negatively affect livelihoods and heritage. Public purpose developments could also increasingly undermine the rights of nomads to their home winter pastures. Peoples It cannot be assumed that nomadic pastoralists are the only communities who consider themselves socio-culturally and economically distinctive with profound collective attachment to identifiable territories. The Hazara are a case in point—a mountain society with long roots in the central highlands. Village ESS7 acknowledges that definition of marginalized and vulnerable groups or village cluster territories are distinct, each customarily possessing specific varies but broadly refers to socio-cultural groups who hold identities, cultural settlement adjacent pastures, and generally higher pastures up to the snow organization, norms, and aspirations that are distinct from mainstream society, line, accessible within one day (‘near’ pastures). Both are essential for green and follow lifestyles that are grazing and collection of fodder for the long winter. Temporary movement of stock to the highest or remotest alpine pastures within clan territories occurs … inextricably linked to the land on which they live and the natural resources only in the hottest two to three months. on which they depend. They are therefore particularly vulnerable if their land and resources are transformed, encroached upon, or significantly Questionably viable or fair tenure arrangements degraded. Projects may also undermine language use, cultural practices, The common denominator of threat for these two groups and for several institution arrangements, and religious or spiritual beliefs … (Introduction, others is the legal status of grazing land, and particularly those adjacent ESS7, page 75). to, and near to, settlements are considered collective property usually on a Application in Afghanistan village-by-village basis. As covered earlier, all grazing lands are defined as public property for the use of individuals and communities, through allocation and management vested in the state. While this leaves open access and use The most obvious potentially affected group in Afghanistan are Kuchi, opportunities, de facto state ownership is disputed. Provision for collective transhumant, or nomadic pastoralists with a distinctive migratory way of life, tenure is not provided in the law and its denial extinguishes these rights, production system, and cultural identity. Many of these estimated 3 million occurring in practice only when those lands are directly taken for projects. The Afghans own lands in their home areas but depend upon migration to sustain law also undermines long-standing use rights by nomads, variously granted their flocks. Migration includes long-range migration from spring to autumn by previous administrations or acquired customarily over, especially, the last from the south to the central highlands and for some groups even further north century by simply not referring to these as an issue which the law must address. (52 percent of families in 2005), shorter migration from the north/south to the central highlands, and west to east migration across the north (33 percent). While communities will be granted use to pastures, including those most Those not migrating at all accounted for 15 percent of pastoralists in 2005. local to their settlements, the LAL assumes that by declaring all grazing lands While livelihood diversification was already evident in 2005 as male members to be unowned and unownable public property, reparation for losses are sought labor opportunities in winter months, migration continues into the unnecessary. The law is also silent on replacing lost pastures and rights due to public purpose acquisitions with alternatives like pastures and rights. There 98 99 Annex 6: The Land Acquisition Law and World Bank ESS7 on Indigenous Peoples Annex 6: The Land Acquisition Law and World Bank ESS7 on Indigenous Peoples is also some irony in the fact that just as many communities have begun to The Land Acquisition Law and ESS7 bring their local pastures under active boundary definition and community- based management, that the most secure and incentivized foundation for this, IPs have no special recognition in Afghanistan law, but there is recognition secure tenure, is stripped from them. This also applies to evolving negotiation that different land use systems apply, including constitutional reference with nomadic groups as to the use of contested summer pastures. In these to nomadism (Article 14). The land rights and use realities of nomads and respects, it is difficult to see how the rights of collective landowners or collective communities such as Hazara will be addressed during compulsory acquisition use right holders can be respected during compulsory acquisition projects as under standard identification as owners, possessors, and other affected stipulated by ESS5 and more elaborately by ESS7. persons. As the primary land asset of these communities is rangeland, they Engaging with distinctive, collectively land-dependent groups will be deemed ‘other affected persons’, given the status of all grazing lands as public lands. At the same time, public grazing lands are earmarked for For the most part, ESS7 does not differ in requirements from ESS5 as addressed collective use by the public or, in the case of special grazing land, by identified above. ESS7 is however much more insistent that IPs fully participate in all local communities. This provides grounds for those affected to reasonably aspects of project planning and implementation. More distinctly, ESS7 requires claim to either continue to use, if not own these lands, or to be allocated that their free and informed prior consent (FPIC) be secured where the project alternative grazing lands. negatively affects their collective owned or used lands and resources. FPIC is also required where relocation is needed, and/or where their cultural As the law gives no assurance in this regard but neither excludes this possibility, heritage will be significantly affected (para 24–25). The following description fairness and justice will depend upon the borrower being required by the in paragraph 26 of ESS7 is instructive: lending World Bank to investigate and report on the presence of tenurial claims of such communities in the project area. This will be especially important For the purposes of this ESS, consent refers to the collective support of in rural areas but will also apply in urban and peri-urban areas where many affected Indigenous Peoples … for the project activities that affect them, impoverished nomads are known to have settled. They too presently live on reached through a culturally appropriate process. It may exist even if some lands deemed to be state or public lands. Nomads may have an advantage individuals or groups object to such project activities … (para 26). in these cases in that if they can establish their identity as IDPs or refugee returnees, they will be eligible for grants of residential plots in settlement schemes under Decree 305. This decree will also come into play where the Systematic steps are listed where consultation, participatory engagement, land on which they have settled—often in and around cities and towns—is and negotiation are required (for example, ESS7 paras 13, 17, 21, 30, 31, earmarked for a public purpose development. 34). The framework also points out where a culturally appropriate approach is In summary, the LAL does not meet the requirements of ESS7 in respect of required, such as in creation of grievance mechanisms; initiatives to strengthen IPs. Along with the LML from whence restrictions derive, the LAL will push recognition of customary or traditional land tenure arrangements; addressing such groups into even greater marginalization, principally by not recognizing of gender and intergenerational issues and strengthening of government collective rights and dismissing their communal properties as unowned and capacity to provide services to the affected communities; and planned actions unownable and by failing to provide for recognition of collectively used which the borrower may look to the World Bank for support (para 35). resource use rights. The level of IP participation needed in project design 100 101 Annex 6: The Land Acquisition Law and World Bank ESS7 on Indigenous Peoples and planning to arrive at workable compromises enabling those affected to consent to developments is not envisaged in the law nor is there provision for Comparison Table of ESS5 and alternative grazing lands or serious investment in alternative incomes. National Laws Introduction: The comparison table provides short-term solutions to the World Bank projects and long-term recommendations on policy gaps to be addressed. Corresponding ESS5 Corresponding Legal Major Gaps with Possible Solution Provisions Provisions (LAL and Recommendations on LML) Policy OBJECTIVES [para 2] - To avoid The objective of the LAL Legal commitment against World Bank projects should involuntary resettlement, considers fair acquisition forced eviction is lacking. obtain this commitment in or when unavoidable, and compensation, reference to their projects. minimize by exploring among others, that have project design alternatives; direct bearing on land to avoid forced requirement (Article 1, LAL). eviction; and to mitigate Expropriating authority unavoidable adverse social expropriates the needed and economic impacts property - determining from land acquisition. exact minimum area needed for the project (Article 8 (1)–2, LAL). Type and location of project with different options of implementation area of project (Article 7, LAL). SCOPE OF APPLICATION 102 103 Comparison Table of ESS5 and National Laws Comparison Table of ESS5 and National Laws [para 4] ESS5 only applies Applicable to property There is a major gap in the World Bank project [para 7] - ESS5 does Procedure for land Land titling is adequately World Bank project to where compulsory expropriated only for the scope of the LAL in regard should consider to ensure not apply to disputes clearance has been issued covered under the LML consider land titling issue acquisition or restriction purpose of implementation to customarily exercised replacement of communal between private parties by the government for and elsewhere. However, in case of endowed and on land use is imposed of projects of public communal rights to off-farm land such community in land titling or related ascertaining title of land. in case of donations of donated lands or allocation by a World Bank-funded interest (Article 40 (4), the lands, especially to grazing special grazing land contexts. However, where (Articles 18, 19, and 20, land for project use by of special grazing land. project. It applies to both Constitution, and Article 5, lands, and to protected at expropriation with persons are required LML) individuals, there is no land rights and land use LAL). The LAL provisions areas. These rights and legal stipulation that to vacate land as a In case of linear projects, mandate to perform land rights. Customary rights are available only where benefits represent a replacement areas of direct result of a project- such as power transmission titling. Title of land being held by communities or involuntary acquisition of substantial source of the same quality will be supported determination lines, roads, canals, and donated is doubtful. groups within them are to private property is involved livelihood and have allocated to the same that the land in question so on, there is no land MUDL to lay down specific be considered, including for public projects. Where enjoyed long-standing de affected community as a is state land, this ESS will clearance required, but procedures and processes where these are lost or direct transfer is possible facto acknowledgement as right of exclusive access apply land rights identification for land donations. restricted due to World in small projects, those will lawful customary property and use held in perpetuity is carried out (Chapter Bank-funded projects in be out of the ambit of the interest. by the community and 2, Regulation on Linear protected areas, forests, LAL’s provisions (Article 18, its descendants to a Expropriation of Land). and so on, including LAL). MUDL to take policy designated special grazing In case of ownership impacts in buffer zones. initiatives to include land. disputes between the Non-customary rights provision for collective state and the individual existing in a project area property rights including during project land are also to be addressed. over grazing lands that can acquisition, adequate Communal property rights be entered into the LML. measures are present to are to be considered, such resolve the same in the as to forests and their course of project land products, grazing, cropping acquisition (Article 49, LAL). and freshwater areas, and, where applicable, marine REQUIREMENTS (GENERAL para 10–25) areas. Eligibility classification Person has a legal The LAL only compensates World Bank-funded [para 5, 6, and 8] - ESS5 (para 10). Affected right by title deed assets and standing projects to consider does not apply to impacts persons may be classified over land by having crop on the land under provision for compensating on incomes or livelihoods as persons who have legally valid documents acquisition. This implies affected leaseholders that are not a direct result formal legal rights to land either issued officially or that only the ownership in coordination with of land acquisition or land or assets; who do not have customarily, that meets of land or asset is the owner/landlord use restrictions imposed formal legal rights to land the requirements under compensated. Leaseholder, or government land by the project. It does or assets, but have a claim the LML (Article 18). Lease to the extent of tenant leased out to individuals. not apply to voluntary, to land or assets that is rights or tenancy rights farmer is compensated Ownership with no proper legally recorded market recognized or recognizable have been recognized for the standing crop titling needs to be properly transactions. However, under the national law; or for persons affected by and must settle accounts investigated. where such voluntary land who have no recognizable land expropriation and with the owner/landlord. transactions may result legal right or claim to the acquisition (Article 17, LAL). Else there is no direct in the displacement of land or assets they occupy compensation for persons, other than the or use. leaseholder. Amendment seller, who occupy, use, to the law is desirable or claim rights to the land to clarify the definition in question, this ESS will of affected persons as apply. This ESS does not explicitly including all apply to land use planning dependent on the land or the regulation of required for development natural resources. Where projects. This is on the a project supports such grounds that irrespective activities, the government of the legal classification agency will be required of state and public lands, to conduct a social, they are adversely affected legal, and institutional by loss of long-standing assessment under ESS1. occupation, use, and livelihood dependence upon affected lands, including as and when they have customarily exercised those rights collectively. 104 105 Comparison Table of ESS5 and National Laws Comparison Table of ESS5 and National Laws Project design [para Minimizing land The LAL broadly meets Guidelines to be adopted [para 13] - ESS5 requires Compensation calculation LAL meets minimal World Bank projects to 11]. ESS5 requires the acquisition is provided the requirements of ESS5 for minimizing impact on that compensation is to be based on ESS5 requirements. No prepare and disseminate borrower to avoid or by the LAL in that the and has no real gaps, women and vulnerable and standards are valuation guidelines guidelines have been entitlement matrix with minimize land acquisition expropriating authority just different approaches quantified in the design of documented, disclosed, or terms of reference. issued till date in the eligibility criteria in the or restrictions on land is bound by Article 8(2) to avoid or minimize the project. and applied consistently These guidelines are provinces and no circle project areas. use, including considering to determine “the exact involuntary resettlement. and compensation to be developed by rates are available for feasible alternative project minimum area needed Attention to gender- distributed transparently. the committee of the land in provinces. Only designs, while balancing for the project.” It is also specific impacts and Compensation rates may government for each Kabul municipality has environmental, social, required to consider impacts upon the poor and be subject to upward province. The same valuation guidelines. financial cost and benefits, different options for areas vulnerable is not explicitly adjustment where will be published and Provinces follow ad hoc and paying attention to to implement the project required by the law. negotiation strategies are made available for land valuation procedure, open gender impacts and (Article 7). There is also These gaps can be employed. expropriations in the to risk of disputes. There impacts on the poor and an obligation on the remedied through provinces (Article 22, LAL). is neither a documentation vulnerable. requiring agency to have regulations or official The guidelines developed template nor any minimal private or public guidelines for project for the provinces are notification mandated land size expropriated design which require that to be followed by the for communicating price for linear projects (Article (a) the poor and vulnerable technical delegation of to owners. In practice, 5, Regulation on Linear are specifically identified the acquiring agency in office orders/special forms Expropriation of Land). in social assessments; the project. Technical and formats have been (b) gender impacts be committee is also to developed in accordance specifically covered in the consult and communicate to criteria and provision in above. compensation to the the LAL, based on which affected persons (Article valuation takes place and Compensation and Compensation mechanism The LAL does not provide World Bank projects need 24, LAL). compensation is being benefits for affected is available for market for other than market- to consider compensation paid. person [para 12–25]. [para value of land and assets estimated value of to the affected people 12] - ESS5 requires the on the land, including structures, farms, trees, at replacement cost and borrower to offer affected crops and trees under and business and rental provide other assistance to persons compensation law (Articles 22–37, LAL). losses, to be replaced. restore the living standard Land-based dependence Article 31 of LAL states that The LAL fails to meet these World Bank projects at replacement cost. However, the compensation Neither specific provisions of the affected people. and collectively owned compensation will be paid requirements of ESS5. Nor need to be conscious of The borrower must also amount is restricted to for inclusion of transaction lands and resources [para in most cases with grant of does the law make any these shortfalls, to require provide other assistance the same and does not cost in compensation to 14] - Where livelihoods an equivalent land to the concession to collectively remedy to be provided as needed to improve consider loss of access or purchase replacement of displaced persons are owner, or if not available, owned lands other than for in project consultation, or at least restore their standard of living. land are considered nor land based (including receipt partly in land family-owned houses or identification of losses, and standards of living or is there indication if and grazing, harvesting and partly in cash. There farms and as vested for identification of suitable livelihoods. what measures other than of natural resources, is no requirement in the community members in areas for replacement in compensation in land-for- rotational cropping) or LAL that those who lose a traditional authority concert with those affected land or cash equivalent where land is collectively customary grazing lands and which are to be and the acquiring agency. at market rates will be owned, the borrower through expropriation of individualized at clearance provided to those affected will offer the displaced areas will either receive as noted in analysis of to help improve living persons an option for compensation for these the LML. GOIRA to have standards. replacement land unless it lands or be guaranteed guidelines to recognize can be demonstrated that access to alternative areas customary norms for equivalent replacement or assisted to be granted collective rights to land and land is unavailable. those alternative areas as to establish be eligibility special grazing lands. compensatory replacement of land and transfer and change in land use for public purposes. 106 107 Comparison Table of ESS5 and National Laws Comparison Table of ESS5 and National Laws [para 15] - The borrower The expropriating authority The LAL does not provide Community engagement Participation is provided There is no legal A stand-alone Stakeholder will take possession shall pay compensation of for moving allowances. [para 17] - Government to the extent that a obligation in the LAL to Engagement Plan (SEP) of acquired land and the expropriated property Absent legal obligations agency will engage with representative of the engage affected persons should be prepared and related assets only after to the owner and expenses to restore livelihoods to affected communities, owners is to be a member throughout the process practiced for World Bank compensation is paid, to the possessor and pre-project standards including host of three major committees: or document this in supported projects. and where displaced affected person, prior to other than in major communities, through the Technical Panel for Land project plans and assess people have been implementation of the national projects and no process of stakeholder Evaluation for pricing engagement in monitoring. resettled, and moving project (Article 35(1) LAL). commitment to improve engagement. Disclosure properties; Evaluation MUDL should have notices allowances have been Compensation for disputed these situations.The gaps of relevant information and Committee; Resettlement to include at least five provided in addition to land or disputed lease will can be addressed with meaningful participation Committee (Articles 12, 24, stages of consultation— compensation. In addition, be paid on furnishing of the development of a of affected communities 38 (12 and 13), LAL). during inception stage of Livelihood restoration and final decision of the courts comprehensive R&R Policy/ and persons will take place Disclosure is required the project, its feasibility, improvement programs (Article 37, LAL). There is Law. during the consideration of six months ahead of the detailed design stage to will commence in a timely no elaboration of what alternative project designs; project’s implementation, prepare land acquisition fashion to ensure affected restoration will involve or thereafter throughout the including on estimated plans, acquisition, and persons are able to take provision of alternative planning, implementation, values of properties based compensation stage. advantage of alternative livelihood opportunities in monitoring, and evaluation on minimum and maximum livelihood opportunities. the law. There is therefore of the compensation values (Article 9, LAL). also no legal commitment process, livelihood Consultation is obligatory: to timeliness. restoration activities, and “consulting with the relocation process. community of the area Unclaimed compensation Whenever an owner or his/ The national law does not under expropriation to be placed in interest- her legal representative consider a reasonable regarding implementation bearing escrow does not appear in additional amount for of the project” (Article 8 (8), account [para 16] - The time, the expropriating contingencies, especially LAL). borrower needs to place authority will present the for project-affected compensation (plus a issue to a competent court persons who may still reject Ensuring inclusion of There is no specific There is no legal obligation World Bank-funded reasonable additional for appointing a legal proxy compensation amount. women’s perspectives in provision mandating for gender mainstreaming. projects should ensure amount for contingencies) (Article 36(3), LAL). Article MUDL to issue appropriate consultation [para 18] - gender-specific MUDL to develop that each step of into an interest-bearing 49(3), LAL states that guidelines to provide The consultation process consultation process. guidelines to specifically Land Acquisition and escrow account, where when a dispute concerns additional cost in terms of should ensure that women’s consult women and other Resettlement and it has proven impossible compensation when the interest in delay of payment perspectives are obtained, vulnerable groups during Rehabilitation (LAR&R) is to contact absentee project has begun, the due due to dispute or any other and their interests feasibility studies, detailed gender tagged and ensure owners, or project-affected amount will be deposited factors. factored into all aspects of design, and acquisition and active participation and persons have rejected in a state-owned bank, to resettlement planning and compensation. This gap to consultation with women compensation, or where be paid after the decision implementation. be addressed through R&R throughout the processes. competing claims still of the court. Policy/Act. exist and are subject Grievance mechanism Grievance mechanisms The law does not appear MUDL to develop to legal proceedings. [para 19] - The borrower are provided for in the to provide an opportunity guidelines to recognize Following transferring of will ensure that a grievance LAL. Article 34 enables for those who are not lawful all people dependent on the compensation amount mechanism is in place an owner, or his/her legal owners or possessors to the land for livelihood into an escrow account the as early as possible to representative dissatisfied present dissatisfaction and shelter as affected in government can proceed address specific concerns regarding compensation with their exclusion order for all to be eligible with the relevant project about compensation, offered to present his/ to the expropriating to access Institutions for activities. relocation, or livelihood her objection with reasons authority.Redressal of registering complaints and restoration measures within 60 days to the grievance has been limited getting redressal raised by displaced expropriating authority, only to the grievance persons (or others). Where which will decide the case regarding the land title possible (these) will use within 30 days. Failing dispute and valuation existing formal or informal resolution, the matter will of compensation. No grievance mechanisms, proceed to an appointed provision for advertisement supplemented as necessary three-person jury, one of of the grievance with project-specific which is a representative mechanism to the affected arrangements designed from the area. If this fails, persons. to resolve disputes in an then the issue will be No provision for cost. impartial manner. referred to a court. Article Only available at the time 49 provides for conflicts of compensation and during implementation of replacement calculation. a project to be referred to Not available formally in Afghanistan Independent other phases of the project. Land Authority (ARAZI), and which will refer the matter to the court if resolution is not forthcoming. 108 109 Comparison Table of ESS5 and National Laws Comparison Table of ESS5 and National Laws Planning and A list of owners, The law provides limited Monitoring [para MUDL shall monitor the No details are given MUDL to develop an implementation [para possessors, and affected clarification on census to 23] - The borrower will process of land acquisition in the law on scope MIS for monitoring to 20–25]. As part of the persons in the area of identify affected persons establish procedures to (Article 11.8, LAL). and proportionality of be adopted by requiring environmental and social expropriation to be drawn and an inventory of land monitor and evaluate the project risks and impacts. agency for tracking assessment, the borrower up by the implementing and assets affected. implementation of the plan In linear projects, There are no specifics or progress of land acquisition will conduct a census to agency (8 (7)). MUDL to develop and will take corrective coordination and detailed provisions with for each project. identify affected persons The requiring agency must appropriate regulation or action as necessary to monitoring commission at respect to the monitoring and an inventory of land at the time of planning official guideline stipulating achieve the objectives of the central and provincial and evaluation of the and assets affected and to and seeking government the details required for this ESS. The extent of levels for linear projects implementation of plans. determine who will be approval for the project socioeconomic survey to monitoring activities will must be present (Article There is only responsibility eligible for compensation conduct and assess the be carried out for all those be proportionate to the 18.1 and 18.2, Regulation conferred; however, no and assistance, and to social (economic) and dependent on the land project’s risks and impacts. on Linear Expropriation of specifics as to monitoring discourage ineligible environmental impacts of Periodic monitoring Land). are present under the law. persons, such as the project (Article 8.1.1, reports will be prepared, The law does not mandate opportunistic settlers, LAL Amendment 2018). To and affected persons sharing information with from claiming benefits. prevent abuse or misuse of will be informed about affected persons about The social assessment will the project land acquisition, monitoring results in a monitoring results. also address the claims the division of the property timely manner. of communities or groups under acquisition or within who, for valid reasons, the approved urban plans is [para 24] - With significant There is no provision on There is no provision under MUDL could consider may not be present in the not allowed for the purpose involuntary resettlement external audit. law to mark an end date to issuance of orders for third- project area during the of transfer (Article 50, LAL). impacts, the government resettlement or an audit to party monitoring. time of the census, such as Where a landowner agency will commission assess the performance of seasonal resource users. is absent during land an external completion the resettlement plan. title clearance process/ audit of the plan when census, absent landowner all mitigation measures retains right to receive have been substantially compensation on his land completed. (Article 44, LML). [para 25] - Where the likely There is no specific No specific provision MUDL to consider Resettlement planning Article 8(6) of the LAL No stipulations with nature or magnitude provision in the laws. under law that makes development of guidelines [para 21] - To address requires the expropriating respect to the procedure of the land acquisition arrangements at a to guide the detailed the issues identified in authority to prepare for negotiated purchase of or restrictions on later stage to include preparation of projects the environmental and an expropriation plan land. land use related to a a resettlement plan in when the geographical social assessment, the with the cooperation MUDL to develop project with potential to government-funded location of project is government agency of ARAZI Office and all guidelines and template for cause physical and/or projects. No such unknown. will prepare a plan other relevant agencies. consultation for negotiated economic displacement exceptions are provided for proportionate to the Projects comprising land purchase of land. is unknown during donor-funded projects. risks and impacts requirement of 1,000 project preparation, the associated with the m2 or below are small government agency will project, establishing acquisitions. Direct develop a framework eligibility criteria for negotiated purchase can establishing general affected persons, set out be made with the consent principles and procedures procedures and standards of the owners. In case compatible with this for compensation, and no consent is possible, ESS. Once the individual incorporate arrangements ordinary procedure under project components for consultations, law for expropriation shall are defined and the monitoring, and addressing be followed (Article 18.2, necessary information grievances. LAL). becomes available, such a framework will be [para 22] - Government Estimation of the budget No real gaps. expanded into one or agency’s plan will is the responsibility of the more specific plans establish the roles requiring agency (Article proportionate to potential and responsibilities 8.1.8, LAL amendments risks and impacts. No relating to financing and 2018). Further costing shall physical and/or economic implementation and be in the resettlement displacement will occur include arrangements for implementation plan that until plans required by this contingency financing. The the resettlement committee ESS have been finalized full costs of resettlement develops (Articles 38 and and approved by the activities necessary to 39, LAL). World Bank. achieve the objectives of the project are included B- DISPLACEMENT [para 26–36] - PHYSICAL DISPLACEMENT [para 26–32] in the total costs of the project. 110 111 Comparison Table of ESS5 and National Laws Comparison Table of ESS5 and National Laws [para 27] - Government There is no coverage for There is no legal provision MUDL to address the [para 30] - Government Prevention of misuse and No gap present, as the agency will offer all displaced persons. Only that displaced persons will gap by developing agency is not required abuse of state and public state has full intention displaced persons owners and occupiers with obtain adequate housing, R&R Policy/Law to to compensate or assist land and prevention of land under law to protect its choices among feasible informal titles who are especially as it is residential address all the issues of those who encroach on grabbing under law. Land lands from encroachment resettlement options, eligible for compensation plots not houses, which displacement, transitional the project area after the grabbing is criminalized and to also have a clear including adequate are to be given land in the resettlement provided to phase, resettlement both cutoff date for eligibility, (Article 32.4, LML). If liability in a cutoff date for replacement housing resettlement project (Article displaced persons (Article shelter and economic and provided the cutoff anybody who is not entitled value of private properties. or cash compensation, 40, LAL). 40). There is a restriction rehabilitation. date has been clearly to the compensation enlists and provide relocation on eligibility for land in established and made in the affected ones, they assistance suited to the the resettlement project, public. will be prosecuted (Article needs of each group of which is limited to persons 51.2, LAL). displaced persons. who are eligible to receive compensation for land Forced evictions [para The LAL does not commit Legal commitment acquired. 31] -The borrower will not to avoiding forced against forced eviction is resort to forced evictions of evictions, despite this lacking, despite this being [para 28] - In the case No provision is present Compensation component affected persons. being a national land policy a national land policy of physically displaced which stipulates value aside, the land in principle (Policy 5.21). principle (Policy 5.21). persons, the government for value in resettlement resettlement project is Evictions are likely to be agency will offer the projects. only limited to owners coercive where having choice of replacement of properties and not accepted compensation, property of equal or all displaced persons; the owner refuses to move higher value, with security additionally there is from his/her residence or of tenure, equivalent or no value or stipulated farm. better characteristics, and amenities fixed to the land [para 32] - As an No specific provision is There is no provision in advantages of location, in resettlement project. alternative to present. the law for in situ land or cash compensation displacement, the development arrangement at replacement cost. government agency may for providing an alternative Compensation in kind consider negotiating in process (as land re- should be considered in situ land development adjustment method for lieu of cash. arrangements by which informal settlements has [para 29] - In the case In case land is given Replacement cost is not those to be affected yet to be practiced). of physically displaced as replacement or considered. Instead market may elect to accept a persons the government resettlement to a project- value of the property partial loss of land or agency will provide affected person, MUDL and assets as on date are localized relocation in arrangements to allow shall register the title considered. Replacement return for improvements them to obtain adequate deed and provide the value is no doubt higher in that will increase the housing with security same (Article 11.4, LAL). such instances. value of their property of tenure. Where these Compensation will be after development. Any displaced persons own calculated and provided person not wishing to structures, the government against the market value participate will be allowed agency will compensate of land, any structures on to opt instead for full them for the loss of assets it, trees and crops (Chapter compensation and other other than land, such 5, LAL). assistance as required in as dwellings and other this ESS. improvements to the Economic displacement The law does not distinctly It cannot be concluded land, at replacement cost. [para 33] - The borrower’s address physical and that the LAL meets Based on consultation with plan will include measures economic displacement requirements of ESS5 such displaced persons, to allow affected persons as required by World Bank in respect of economic the government agency to improve or at least standards. displacement. The law will provide relocation restore their incomes or neither fully replaces or assistance in lieu of livelihoods. compensates losses nor compensation for land lays out measures that sufficient for them to will help affected persons restore their standards restore their incomes and of living at an adequate livelihoods. alternative site. [para 34] - Economically Loss of assets, limited There is no provision on displaced persons who only to land, structures replacement value or face loss of assets or on land, trees, and crops, compensation on account access to assets will be referenced at market value of loss of access. compensated for such loss shall be compensated at replacement cost. (Chapter 5, LAL). 112 113 Comparison Table of ESS5 and National Laws [para 35] - Economically The law does not distinctly No provisions are available displaced persons will be address transitional under law for economically provided with transitional support or opportunities displaced persons who support and opportunities to improve/restore the have suffered losses other to improve, or at least income earning capacity than loss of land, structures, restore, their means of and standard of living. trees, or crops. The law income-earning capacity, neither fully replaces or production levels, and compensates losses nor standards of living. lays out measures that will help affected persons restore their incomes and livelihoods. [para 36] - Transitional The law does not distinctly There is no provision for support will be provided address transitional support the specifics in the standard as necessary to all to economically displaced as components of the economically displaced persons. support to be provided persons, based on a through transition. reasonable estimate of the time required to restore their income-earning capacity, production levels, and standards of living. C. COLLABORATION WITH OTHER RESPONSIBLE AGENCIES OR SUBNATIONAL JURISDICTIONS Collaboration with other Cooperation and No real gaps. World Bank-funded responsible agencies or coordination between the projects to closely subnational jurisdictions acquiring and requiring coordinate the involuntary agencies is prescribed as resettlement process with nonmandatory (Articles the responsible agencies to 3.3, 8.4.1, 11.1 and 2, meet the requirements of and 12, LAL amendment subnational jurisdictions. 2018) (Articles 38.2, 39.1, and 39.2, LAL). In linear projects, a ‘coordination and monitoring’ central and provincial commission chaired by MUDL minister and provincial governor respectively with membership of the requiring agency and all line agencies should be constituted (Article 18, Regulation of Linear Acquisition of Land). 114