chapter  15
19 Pages

Land and power in Afghanistan: in pursuit of law and justice?

ByPATRICK MCAUSLAN

It is becoming increasingly clear to virtually everyone involved, or taking an intelligent interest, in Afghanistan, except, it would seem, the British Government, that the war in Afghanistan is unwinnable;1 that the Government in Afghanistan is corrupt, ineffective, composed of warlords and drug barons, is pandering to Islamic obscurantism, and overall has very little support amongst the citizenry. This chapter, based on my experiences working in Afghanistan in 2005 and 2007, discusses one important area of public policy and management – that of land – to see what light this area can throw on how and why, more than seven years on from the invasion of November 2001, the Government, despite the substantial sums expended by its Western backers on the country, is still in the category of a ‘failed state’. Somewhat belatedly, the international community have come to realize that in

virtually all failed states, conflicts over land have been at least a part of the cause of the wider conflicts within or between the countries concerned. Moreover, they have come to realize that even where conflicts over land have not been a particularly significant cause of the outbreak of a conflict, such conflicts are likely to break out during attempts to bring about and consolidate peace and internal stability, as those who fled the original conflicts return to find that their land has been appropriated by others; or that those who have ‘won’ seize the land of those who have ‘lost’ a civil war; or – a very common occurrence – documentary records of land administration have been deliberately destroyed during the conflict so that conflicts over who owns what land are almost bound to occur. Reacting to this phenomenon, there has been an outpouring of official litera-

ture on what to do about land administration in post-conflict societies. In summary, the principal reports analysing the problems suggest that the reforms to land policy and practice must:

be taken seriously as a major contribution to restoring peace; be based at the local level; build on local systems and institutions;

place effective and fair dispute settlement at their heart; prefer ‘soft’ to ‘hard’ systems of land administration, for example by pref-

erring deeds to title registration, allowing oral and hearsay, as well as documentary, evidence of title and using the private sector in land administration;

make land restitution central to restoring trust in land administration; provide land to people rather than reassert government ownership of land;

and involve donors whose approaches are co-ordinated, and who do not impose

their own systems.