Recommendations
on land
problems

6.1 PERFORMING A PUBLIC CEREMONY

Guideline for land problems / RESOLVING: 6.1 Performing a public ceremony

Interventions and evidence explained

Most plausible interventions explained

During the orientation process of the available literature, we identified the following interventions as most plausible for ensuring compliance with decisions and achieving closure (stabilising) in ownership and use of land disputes:

Performing a public ceremony
Formally registering the land

Once the parties to an ownership or use of land dispute have accepted their agreement and demonstrated their commitment to its terms, an additional step is needed to ensure their compliance with the agreement and achieve closure. Performing a public ceremony (sometimes called a “reconciliation,” ”signing” or ”witnessing” ceremony) and formally registering the land that was previously under dispute are two of the most common ways of doing this.

Performing a public (“reconciliation”/”signing”/”witnessing”) ceremony

“A common feature of all rural land dispute settlements is a reconciliation ceremony that signifies and seals the end of the dispute” (Meitzner Yoder, 2003, p. 21). “In such a ceremony, the people who were in conflict come together in a large public celebration, complete with food, singing, dancing, cultural activities, and other festivities. At these ceremonies, relevant leaders and community members may pledge to help hold the parties accountable to upholding their agreement and creating a network of support and enforcement” (Knight et al., 2017, p. 174).
“Even cases that have been settled with government mediation or court decisions must return to this traditional practice to be finally resolved and restore the relationships. Where the parties are assessed fines of animals, these animals are often killed and eaten by the disputants and other members of the community, with portions of the animals being given to traditional leaders and government officials to inform them of the resolution. Nearly all cases [involving large and small rural land disputes in East Timor] highlighted this action of eating meat and drinking palm wine together as critical in the settlement process. In Aileu and other districts [of East Timor], there is also a small woven mat given to the local ritual authority to store in the adat house, as a “file” or record of the finalization of this dispute against any future violations of the agreement” (Meitzner Yoder, 2003, p. 21).

Formally registering the land

Land registration can be understood as “the process of recording legally recognized interests (ownership and/or use) in land” (McLaughlin & Nichols 1989).
In this phase of the ownership or use of land dispute resolution process, “communities follow national legal procedures to formally document and register their lands and receive state documentation of their rights. [Neutral third parties] facilitating this process should review relevant national laws to understand how to best support communities to follow national land registration procedures” (Knight et al., 2017, p. 7).
“In Liberia, ‘deeds’ (i.e. transfers of land) are usually prepared by surveyors rather than lawyers, partly because there is a standard, government-approved, form of deed which simply requires the relevant details to be inserted, along with a description of the location and boundaries of the land which is known as the ‘metes and bounds’” (Norton, 2011, p. 23).
In order to truly stabilise a land agreement through formal land registration, it may be necessary to keep the registration document (land deed, title or certificate) in a secure location such as a safety deposit box. This will help ensure that the land is not illegally re-appropriated or sold without the approval of the parties involved (Knight et al., 2017, p. 188).

Selected interventions for comparison (defined as a PICO question)

For parties to a ownership or use of land dispute looking to ensure compliance with their decisions and achieve closure (stabilise their agreement), is performing a public ceremony or formally registering their land more effective for well-being?

Search strategy

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

For this PICO question, keywords used in the search strategy are: land dispute resolution; ownership and use of land disputes; land disputes reconciliation ceremony; land conflict reconciliation ceremony; land disputes signing ceremony; land disputes witnessing ceremony; land registration procedures

Assessment and grading of evidence

The main sources of evidence used for this particular subject are:

Rachael Knight, Marena Brinkhurst and Jaron Vogelsong, Community Land Protection: Facilitator’s Guide, Namati (2017)
Babette Wehrmann, Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox, GIZ (2017)
Mara Goldman, Makko Sinandei and Laura DeLuca, Conflict Resolution, Land Disputes and Peace-building in Northern Tanzania: The Role of Customary Institutions in Building Peace from Within, Africa Institute of South Africa (2014)
Gregory Norton, Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia, Norwegian Refugee Council (2011)
Laura Meitzner Yoder, Custom and Conflict: The Uses and Limitations of Traditional Systems in Addressing Rural Land Disputes in East Timor, German Technical Cooperation (GTZ) and Direcção de Terras e Propriedades (2003)

Quality of evidence and research gap

“Community Land Protection: Facilitator’s Guide” is a practical manual for grassroots advocates working to help communities protect their customary claims and rights to land and natural resources. It was written by land and community empowerment experts Rachel Knight, Marena Brinkhurst, Jaron Vogelsang and published by Namati in 2017. The guide is intended for facilitators working to support communities to protect their land claims, and describes Namati’s approach to community land protection in detail. Although it is based on a wealth of institutional experience, it is an expert opinion with a very low quality of evidence, according to the GRADE method.
“Understanding, Preventing, and Solving Land Conflicts: A Practical Guide and Toolbox” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ) in 2017. It is based on the expert opinion of the author, the expert opinion of other customary land conflict resolution experts consulted, and a wide range of land research. It is best categorized as a comprehensive and authoritative export opinion drawing from GIZ’s extensive fieldwork experience. Although the quality of evidence would normally be ranked as very low according to the GRADE method, it is upgraded to low due to the extensive empirical research cited in the bibliography and due to the fact that this is a revised and updated version of the original 2008 report.
“Conflict Resolution, Land Disputes and Peace-building in Northern Tanzania: The Role of Customary Institutions” is a chapter in the book Building Peace from Within, which was published by the Africa Institute of South Africa in 2014. The chapter was written by geography, land conflict, and anthropology experts Mara Goldman, Makko Sinandei and Laura DeLuca. It “discusses the important role of customary institutions in peacebuilding in Northern Tanzania, with the focus on Masaai pastoral/agro-pastoral communities” (p. 10). The book, which was edited by Sylvester Maphosa, Laura DeLuca, and Alphonse Keasley, “seeks to examine how successful models of building 'peace from within' in the African context function. It draws emerging lessons to provide critical recommendations on policy, practice and academia.” Both the chapter and the book draw primarily from case studies as the basis for their arguments, and can therefore be categorised as expert opinions and ranked as very low sources of evidence.
“Searching for Soap Trees: Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia” is a thematic report written by lawyer and land specialist Gregory Norton and published by the Norwegian Refugee Council in 2011. It is the third in a series of report published by the NRC on housing, land and property rights, land tenure, and land-related conflict in Liberia, where NRC has worked to help individuals resolve land disputes resulting from the 1989-2003 civil conflict since 2006. It contains original research and analysis based on NRC’s fieldwork in Liberia. This research is not empirical, and therefore the report can best be categorized as an expert opinion, with a very low grade of evidence.
“Custom and Conflict: The Uses and Limitations of Traditional Systems in Addressing Rural Land Disputes in East Timor” is a discussion paper prepared for a regional workshop on “Land Policy and Administration for Pro-Poor Rural Growth” in Dili in 2003. It was written by Laura Meitzner Yoder, a land expert, professor of environmental studies, and the Director of the Human Needs and Global Resources Program at Wheaton College. The paper was sponsored by the German Technical Association (GTZ) in collaboration with the Directorate of Land and Property (DTP) of East Timor. It describes how land disputants in rural East Timor “take their cases to traditional authorities, who hear testimony from disputants and witnesses, consider evidence, observe the disputed land, facilitate and legitimize decisions, and oversee a reconciliation ceremony if the case is resolved” (p. 2). The research looked at 200 cases of large and small land disputes and involved 67 interviews, and can therefore be considered a large empirical study with a moderate grade of evidence.

According to our research method, we grade the evidence comparing performing a public (“reconciliation”/”signing”/”witnessing”) ceremony and formally registering the land as very low. Although ample research on formal land registration is available, there is a dearth of evidence on its benefits relative to those of more informal procedures used to stabilise and ensure compliance with ownership and use land agreements, such as public ceremonies. There is also a general lack of empirical studies examining the land dispute resolution process in detail. Most of the available evidence comes in the form of case studies or expert opinions based on fieldwork.

Comparing the two interventions

Desirable outcomes of the interventions

Performing a public ceremony	Formally registering the land
Performing “such ceremonies and celebrations can…help to validate the legality of the agreement; solidify respect, harmony and goodwill between the parties; and stimulate community-wide accountability to the terms of the agreement” (Knight et al., 2017, p. 174).	Formally registering the land stabilises the agreement of the parties by making it legally valid and easier to enforce, which benefits the parties in the form of increased land tenure security. “Carrying out the required registration formalities so that [a newly produced land] deed” ensures that it “is legally valid and enforceable” (Norton, 2011, p. 23). “Formal government registration is the strongest form of rights documentation” (Knight, 2017, p. 187).
Evidence suggests that parties to an ownership or use of land dispute who perform a public ceremony are less likely to violate the agreement or re-open the matter due to the social and material costs associated with doing so. “Once these ceremonies have been performed, disputants very rarely take the case to another authority or transgress the agreement, because the social and material consequences of doing so would be quite high, including a fine several times what was paid in the reconciliation itself. In cases which are forwarded to government institutions or courts, the disputants and traditional authorities usually agree to that step before going through the reconciliation ceremony” (Meitzner Yoder, 2003, p. 21).	Formal registration following an agreement contributes to tenure security and helps prevent re-escalation of the dispute. “The creation of tenure security should be part of the land conflict resolution process. Once all legitimate tenure rights held by different conflict parties have been identified and a solution over future access to and use of the land [has] been achieved, tenure security should be established to prevent a re-escalation of the conflict. The creation of tenure security can have various forms, individual titling being only one of them” (Wehrmann, p. 95).

Performing a public ceremony

Formally registering the land

Performing “such ceremonies and celebrations can…help to validate the legality of the agreement; solidify respect, harmony and goodwill between the parties; and stimulate community-wide accountability to the terms of the agreement” (Knight et al., 2017, p. 174).

Formally registering the land stabilises the agreement of the parties by making it legally valid and easier to enforce, which benefits the parties in the form of increased land tenure security. “Carrying out the required registration formalities so that [a newly produced land] deed” ensures that it “is legally valid and enforceable” (Norton, 2011, p. 23). “Formal government registration is the strongest form of rights documentation” (Knight, 2017, p. 187).

Evidence suggests that parties to an ownership or use of land dispute who perform a public ceremony are less likely to violate the agreement or re-open the matter due to the social and material costs associated with doing so. “Once these ceremonies have been performed, disputants very rarely take the case to another authority or transgress the agreement, because the social and material consequences of doing so would be quite high, including a fine several times what was paid in the reconciliation itself. In cases which are forwarded to government institutions or courts, the disputants and traditional authorities usually agree to that step before going through the reconciliation ceremony” (Meitzner Yoder, 2003, p. 21).

Formal registration following an agreement contributes to tenure security and helps prevent re-escalation of the dispute. “The creation of tenure security should be part of the land conflict resolution process. Once all legitimate tenure rights held by different conflict parties have been identified and a solution over future access to and use of the land [has] been achieved, tenure security should be established to prevent a re-escalation of the conflict. The creation of tenure security can have various forms, individual titling being only one of them” (Wehrmann, p. 95).

Undesirable outcomes of the intervention

Performing a public ceremony	Formally registering the land
Depending on the setting of the ownership or use of land dispute resolution process, the authority of the customary leaders or institutions involved in the public ceremony may be inadequate to stabilise the agreement within the community. “Many customary institutions and techniques [such as reconciliation/signing/witnessing ceremonies] have changed over time through colonial interventions, independent state actions or other external influences. At the same time, certain aspects of customary institutions may be inadequate for addressing the scale and intensity of contemporary conflicts” (Goldman et al., 2014, p. 153).	Formally registering land in the aftermath of a dispute can be costly. Land registration procedures typically require the parties involved to pay various legal and informal fees (Norton, 2011, p. 23).
	In addition to the cost, lack of understanding about formal land registration procedures may deter parties from proceeding with registration once they are in possession of a land deed or title. “The registration process is fairly complicated and bureaucratic and this complexity and the cost deter many Liberians from completing the registration procedure. In addition, some people wrongly believe that mere possession of a land deed is sufficient” (Norton, 2011, p. 23). “It is therefore essential that parties receive information and counselling about the registration process in language that they can understand” (Norton, 2011, p. 24).
	The value of formally registering land depends on the capacity of the land registration system in a given country to progress land registration applications, or the availability of neutral third parties who are able to assist in capacity building. “There is little point in encouraging and assisting [parties to ownership or use of land disputes] to submit large numbers of registration applications if the system cannot in fact process them. It may sometimes be necessary to [for neutral third parties involved] to consider carefully targeted capacity building assistance, which can be as simple as helping to ensure that document ledgers are properly indexed” (Norton, 2011, p. 24).
	“Some communities may be skeptical of – or directly opposed to – registering their land claims with the government” (Knight et al., 2017, p. 187). This skepticism may be a result of the tax burdens associated with land registration or fears related to the parties’ immigration status, for example.

Balance of Outcomes

Taken together, the available research suggests that both performing a public ceremony and formally registering land have stabilising effects and are generally conducive to the well-being of the parties to an ownership or use of land dispute. There are also potential challenges associated with both, the relevance of which depends on the setting of the land resolution process.

Both public ceremonies and land registration procedures have the effect of helping to validate and reinforce the parties’ agreement and prevent re-escalation or re-opening of the dispute. Public ceremonies do this by fostering harmony and goodwill between the parties and stimulating community-wide accountability to the agreement. Formal land registration achieves this by contributing to tenure security and making the agreement (and land rights protected by it) easier to uphold/enforce.

Although there are practical difficulties potentially associated with both interventions (depending on the location and cultural context of the dispute), neither of the compared interventions is likely to harm the well-being of the parties involved. Performing a public ceremony will have a less stabilising effect in communities where the customary authorities or institutions that would typically facilitate such a ceremony are less well-recognised or respected. The value of formally registering land will also depend on the capacity of the land registration system in a given country, the complexity of the required procedures, and legal and informal costs of doing so.

Performing a public ceremony and formally registering the land are roughly equal in the benefits they provide as well as the practical difficulties potentially associated with each. When used together, these interventions can also be mutually reinforcing.

Recommendation

Taking into account the balance of outcomes, the social and material benefits for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to a ownership or use of land dispute looking to ensure compliance with their decisions and achieve closure (stabilise their agreement), performing a public ceremony and formally registering the land are both conducive to well-being. Their relative effectiveness depends on the local context and culture.

Performing a public ceremony is most effective in communities where the customary leaders and institutions that would typically be involved in such a ceremony are well-respected and can confer legitimacy on the stabilising process. Formally registering one’s land is most effective in settings where land registration systems are highly functional and where practical barriers associated with the registration process are low.

With that said, either intervention – or a combination of the two – is preferable to doing nothing to ensure parties’ compliance with the land agreement and achieve closure.