Recommendations
on land
problems

5.3 Tribunals in the community

Guideline for land problems / RESOLVING: 5.3 Tribunals in the community

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 decision-making (“deciding”) in ownership and use of land disputes:

Seeking a decision by a tribunal in the community
Seeking a decision by the nearest court

When parties to an ownership or use of land dispute need a neutral third party to help them resolve their dispute, they typically have two options: rely on the tribunal in the community to make the right decision or bear the additional costs of having their case adjudicated in the nearest court. “A number of factors, including accessibility, existing allegiances and assumed outcomes, tend to guide people in their choices of how to [address land conflicts” (Mathys & Vlassenroot, 2016, p. 2). Once this initial choice is made, the perceived authority of the selected decision-maker will influence the extent to which the decision is observed by the parties themselves and the broader community.

Decision by a tribunal in the community

Though they vary widely across cultures, local tribunals generally see ownership or use of land disputes as conflicts involving the entire community, not just as disputes between individuals (Wehrmann, 2008). This view informs the way they approach resolution. Local tribunals typically make decisions based on conventions and customary regulations (Van Leeuwen & Haarsten 2005).

Decision by the nearest court

In contrast to community tribunals, courts make decisions based on state legislation (Van Leeuwen & Haarsten 2005). Judges typically view ownership or use of land disputes as conflicts between individuals that can be resolved through an analysis of the relevant land title or other legal documentation.

Selected interventions for comparison (defined as a PICO question)

For parties to an ownership or use of land dispute who need third party adjudication, is seeking a decision by a tribunal in the community or a decision by the nearest court 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: (resolving) land ownership disputes; (resolving) land use disputes; land dispute resolution

Assessment and grading of evidence

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

Mathijs van Leeuwen and Linda Haartsen, Land dispute and local conflict resolution mechanisms in Burundi, CED-CARITAS Burundi (2005)
Kathryn E. Witchger, Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law, Colombia Journal of Gender and Law (2018)
Domenico Nucci, Study on Arbitration, Mediation and Conciliation of Land and Property Disputes, Norwegian Refugee Council (2004)
Babette Wehrmann, Land Conflicts: A Practical Guide to Dealing with Land Disputes, GIZ (2008)
Julius Ojok, A Step-By-Step Guide on Land Dispute Resolution Mechanisms in Acholi-Northern Uganda, Trocaire.
Getachew Mequanent, The Application of Traditional Dispute Resolution in Land Administration in Lay Armachiho Woreda (District), Northern Ethiopia, World Development 87 (2016).
Gillian Mathys and Koen Vlassenroot, “It’s Not all About the Land”: Land Disputes and Conflict in the Eastern Congo, Rift Valley Institute PSRP Briefing Paper 14 (2016).

Quality of evidence and research gap

“Land dispute and local conflict resolution mechanisms in Burundi” is a research report written by rural development sociologist Mathijs van Leeuwen and tropical land use expert Linda Haartsen on behalf of CED-CARITAS, an organization helping Burundian refugees to return to their land. The report summarises qualitative research (fieldwork in four communities, tracking a total of 55 disputes) on “the nature and origins of current land disputes in Burundi, the methods for resolution actually used in the communities, and what this implies fo the assistance of NGOs and churches to strengthen local conflict resolution mechanism” Although the content of the report appears neutral, there is a chance that the research methodology and findings are influenced by the fact that the research project - though funded by the Dutch relief and development organization CORDAID - was initiated at the request of the Catholic Church in Burundi. According to the GRADE system, the quality of evidence from this medium-sized empirical study can therefore be considered low.
“Equality in Process: Community Land Dispute Resolution Mechanisms in Kenyan Law” in an expert opinion written by Kathryn Witchger, a lawyer specialising in international law. Based on its publication in the Colombia Journal of Gender and Law in 2018, it can be considered as a reputable source on traditional dispute resolution mechanisms. With that said, the author appears biased in the sense that she is clearly opposed to resolution mechanisms dominated by male elders and sees them as discriminatory towards women. The quality of this evidence according to the GRADE system is therefore very low, as it is not based on empirical research and may be influenced by a Western bias.
Dominico Nucci’s “Study on Arbitration, Mediation and Conciliation of Land and Property Disputes” is an expert opinion based on field based findings of legislative and customary law and practice in Sudan, as well as existing agreements, statues and customs, international documents and research on land dispute resolution mechanisms. Its recommendations therefore reflect the expert analysis of Nucci and the organisations involved in the original study (Norwegian Refugee Council, United Nations High Commissioner for Refugees, Food and Agriculture Organization of the United Nations). Though these are reputable sources, the quality of evidence in the report is also very low.
“Land Conflicts: A Practical Guide to Dealing with Land Disputes” is a practice-oriented report written by land expert and consultant Dr. Babette Wehrmann and published by the German Society for International Cooperation (GIZ). It is based primarily on the expert opinion of the author as well as other customary land conflict resolution experts consulted. While it is a comprehensive and authoritative resource drawing from GIZ’s extensive fieldwork experience, it is not explicitly based on empirical research and therefore ranked as very low.
“A Step-By-Step Guide on Land Dispute Resolution Mechanisms in Acholi-Northern Uganda” by Julius Ojok, on behalf of Trócair, falls into the same category in that it is a practice-oriented report written by a lawyer and Ugandan dispute resolution expert on behalf of an international development organization. Its findings may be of a slightly higher quality because it is focused specifically on the Ugandan context rather than land dispute resolution glocally. Even so, it is ranked as low according to the GRADE method.
“The Application of Traditional Dispute Resolution in Land Administration in Lay Armachiho Woreda (District), Northern Ethiopia” by independent researcher Getachew Mequanent is a peer-reviewed academic article published in World Development in 2018. It is an expert opinion based on an analysis of a wide range of empirical studies and policies in the district under study. As an expert opinion it would normally be graded as very low, but because of the quality of the evidence supporting it and the highly specific regional focus, it is upgraded to low according to the GRADE method.
Finally, the briefing paper “‘It’s Not All About the Land:’ Land Disputes and Conflict in the Eastern Congo” by Gillian Mathys and Koen Vlassenroot is a policy high-level report on land issues in the Eastern Congo. Dr. Mathys is a historian focused on Africa and Dr. Vlassenroot is an expert on conflict dynamics in East Africa, particularly as it relates to resource governance and land issues. This is an evidence-based expert opinion and is therefore graded as very low.

According to our research method, we grade the evidence comparing community and court-based decision-making processes for ownership and use of land disputes as very low. There is a clear lack of medium to large scale empirical research on this topic, as well as meta-analyses or systematic reviews. This is likely due to the fact that local dispute resolution practices vary considerably across cultures and regions, making expert opinions based on a range of studies and small-scale studies on specific regions the most practical approach among researchers.

It should also be noted that when comparing the evidence for these two interventions, it was not always possible to distinguish the effects of location (nearby local tribunal vs. more distant court) from the effects of procedure (less formal vs. more formal). This may negatively impact the precision of the comparison and final analysis.

Comparing the two interventions

Desirable outcomes of the interventions

Decision by a tribunal in the community	Decision by the nearest court
Local tribunals conduct proceedings in their local language, reducing the risk that their decisions are misunderstood by the community members most affected by them (Ojok).	Courts’ adherence to the law and strict observation of procedural rules reduces uncertainty around their decision-making process and the precedents that inform their decisions (Ojok).
Local tribunals are inexpensive to access relative to courts (Wehrmann 2008; Witchger, 2018). Accessibility is particularly important in land disputes, for which ‘‘effective resolution…requires mechanisms that are closer and more accessible to the people who need them and better attuned to local realities” (Mequanent 2016; Byamugisha, 2013, p. 101).	Courts are well-equipped to interpret state legislation, which is often necessary to resolve land disputes involving land titles (Van Leeuwen & Haartsen 2005).
Local decision-makers are more accessible, well-known, and recognized at a community level than court authorities (Nucci 2004). “Compared to politicians and government officials, African traditional leaders are ‘more available as problem solvers’” (Mequanent, 2016, p. 171). This availability also makes it easier for local decision-makers to prevent land disputes not easily addressed by the courts from escalating (Nucci 2004).	A decision by the court may be necessary to resolve an impasse between parties that cannot be resolved through more conciliatory, community-based conflict resolution mechanism (Kakooza 2007).
Decisions made by community tribunals typically aim to preserve (or re-establish) social harmony and trust, mitigate bitterness, diminish tensions between parties, and rehabilitate those involved (Wehrmann 2008; Nucci 2004).	Adjudication in court is best for resolving land disputes involving multiple, complex issues (Kakooza 2007).
The relative flexibility of the alternative dispute resolution processes typically used by local tribunals makes it more likely they will reach resolutions that reflect local norms relating to the land (Nucci, 2004). This flexibility is particularly valuable for addressing “sensitive issues, such as informal land sale disputes, that were previously mediated outside of the legal system” (Mequanent, 2016, p. 177).
Local tribunals made up of customary and/or indigenous authorities may be particularly adept at adjudicating land disputes due to their intimate relationship with the land. Customary authorities traditionally serve as keepers of communal land and memory about land boundaries (Witchger 2018). “In many parts of the world, indigenous peoples have a very special relation to their land. For them, land is more than an economic or productive asset. It represents home, binds together past, present and future and constitutes their spiritual base. Land being such a complex issue for them, disputes about it have to be settled in a more comprehensive manner.” (Wehrmann, 2008, p. 4; Devasish Roy 2014).
Many local tribunals actively involve the wider community in the decision-making process, which helps to create a “social safeguard from future encroachment or conflict” (Ojok, p. 6). This community involvement – for example, in the form of “public re-demarcaction or re-opening of [land] boundary” (Ojok, p. 6) – may produce more sustainable resolutions.

Undesirable outcomes of the intervention

Decision by a tribunal in the community	Decision by the nearest court
Local tribunals are very often made up of male elders whose do not adequately represent marginalized groups, which may result in unfair treatment of those groups (Witchger 2018; Van Leeuwen & Haartsen 2005). As a result, their decisions are not always in compliance with international standards of equity and may be biased against women, young people, or strangers to the community (Mequanent 2016; Van Leeuwen & Haartsen 2005; Wehrmann 2008). Many traditional dispute resolution mechanisms in Kenya for example do not recognize women’s rights to own land and allow women limited access to its use (Witchger 2018).	Compared to local decision-making, adjudication in court is costly. Parties have to pay file registration fees and bear the costs associated with transportation and in some cases, accommodation (Mequanent 2016). This may disproportionately impact women who experience discriminatory decision-making at a local level and have no recourse in the formal courts due to the high costs of accessing them (Witcher 2018).
Local tribunals tend to demand remuneration for their decisions, which can limit their accessibility and make them vulnerable to corruption (Van Leeuwen & Haartsen 2005). Decisions made by such tribunals may in turn be biased toward wealthy and powerful members of the community (Mequanent 2016).	Adjudication in court is often delayed by case backlogs in the courts, making it more time-consuming (Wehrmann 2008; Mequanent 2016).
The oral tradition of many local tribunals is not well recognized, meaning local decisions can easily be oversimplified or overridden by central decision-making processes. The lack of legal recognition of decisions made by customary authorities makes it more difficult for parties to prove the validity of these decisions and enforce them (Nucci 2004; Mathys & Vlassenroot 2016; Leeuwen & Haartsen 2005). Enforcement of the outcome relies heavily on the good will of the parties and social pressure. Written records (if any are kept) of agreements are not often well-maintained and can be difficult to trace (Ojok; Mequanent 2016).	The adversarial process by which courts make decisions tends to encourage protracted litigation by those who can afford it (Van Leeuwen & Haartsen 2005). Furthermore, court proceedings are seen by many as a way of escalating, prolonging and/or deepening conflict rather than reaching a resolution (Nucci 2004; Leeuwen & Haartsen 2005; Ojok).
Local tribunals in rural areas are not as well-equipped as the courts to deal with urban land disputes (Nucci 2004).	Decisions made in court are not always enforced or followed through on (Leeuwen & Haartsen 2005). A 2010 survey in the Eastern Congo (North Kivu) indicated that “given the partiality of the judiciary and the ambiguity of land legislation, judgments decided by the formal justice system do not guarantee that conflicts are resolved. Moreover, given the weak presence and peculiar workings of state services in the Congo, which are often heavily influenced by patronage, the execution of judgments on the ground remains a considerable challenge” (Mathys & Vlassenroot, 2016, p. 2).
The moral authority of decisions made by local tribunals is increasingly limited (Wehrmann 2008). Generational changes and shifting social values may undermine the moral force of decisions made by customary authorities (Mequanent 2016; (Wehrmann 2008).	Court judgements are not immune from manipulation and corruption (Leeuwen & Haartsen 2005). Court judgements are based on a balance of probabilities. This means that they are not entirely based on truth, and may be subject to manipulation and corruption (Ojok). The inaccessibility and perceived corruption of the state-led justice system in the Eastern Congo, for example, is the reason why “disputants resort to a multitude of alternative conflict resolution, mediation and arbitration mechanisms, involving a wide range of state and non-state actors and structures” (Mathys & Vlassenroot, 2016, p. 2).
The relative flexibility and accessibility of local decision-making processes makes the quality of outcomes they deliver for people more variable and unpredictable. “Many [arbitration mechanisms at the community level] try to attract disputants and manipulate disputes from which they believe they can profit…although the threshold to engage with these mechanisms is usually much lower for small farmers than is the case for formal justice, the outcomes of these dispute resolution and arbitration efforts tend to become negotiable and unpredictable. This limits the chance that disputants will find sustainable settlements or resolutions for their conflicts” (Mathys & Vlassenroot, 2016, p. 3).	Court authorities may make decisions that favor the party with more resources (Leeuwen & Haartsen 2005). Even if court authorities (judges or juries) are unbiased in their decision-making, more affluent parties will benefit from their ability to hire a better lawyer to represent them (Wehrmann 2008; Ojok).

Balance of Outcomes

Taken together, the available research suggests that whereas seeking a decision from the nearest court may be appropriate for particularly complex or serious ownership or use of land disputes that require legal analysis of land titles, seeking a decision by a tribunal in the community is generally more conducive to the well-being of the parties involved.

Though the undesirable outcomes of seeking a decision from a local tribunal and of seeking a decision from the nearest court are roughly equal, the desirable outcomes of the former clearly outweigh those of the latter. Although they do not always adequately represent historically marginalised groups, local decision-making processes offer advantages of accessibility, intimate understanding of community norms and history around land use and ownership, and attention to social harmony and trust that adversarial adjudication in court lacks. Therefore, seeking a decision from a tribunal in the community in ownership or use of land disputes – at least as a first step – is preferred.

Recommendation

Taking into account the balance of outcomes, the value of quick, accessible, and culturally appropriate decisions for land owners and users, and the quality and consistency of the evidence, we make the following recommendation: For parties to an ownership or use of land dispute, seeking a decision from a tribunal in the community is more conducive to well-being than seeking a decision from the nearest court.