The protection of internally displaced persons and property rights in Africa

Africa has the largest number of internally displaced persons (IDPs) in the world. The number of the displaced stands at approximately 11.8 million people which is about 40 per cent of the IDP population globally. Some of the long-established countries known for internal displacement include: Central African Republic (CAR), Chad, Cote d’Ivoire, Democratic Republic of Congo (DRC), Somalia, Sudan and Uganda. However, the recent crisis in North Africa showed the emergence of IDPs in countries like Tunisia and Libya while some states like Zimbabwe do not at any point publicly recognise the existence of IDPs. To the other side, relative stability in Rwanda and Burundi has laid a fertile ground for resettlement and return of formerly displaced persons as the consequences of the genocide. Nevertheless, under any circumstances, the return and resettlement of IDPs has been challenging due to various reasons, and this varies from country to country. The utmost established challenges to return and resettlement stem from the entire issue of land justice, access, ownership and use and state policies. However, the focus of this debate zero to property rights and governance.

The case presented in this paper delves around both metaphysical and etymological understanding of IDPs status in relation to property rights in Africa. The causes of displacement in Africa include the failed democratic transition needed to enhance cohesion among various religious, political and ethnic groups; the failure of the legal systems – to provide avenues to solve underlying property issues, most importantly land; conflicts; and natural disaster. Contemporarily, there is a great nexus between displacement and land rights. This is indirectly represented in the definition of who an IDP is and particularly in legal terms. The IDP Guidelines and explanations by the International Displacement Monitoring Centre (IDMC) recognise IDPs as those displaced within their borders – implying they can exercise their constitutional rights. The parallel is that, they face the challenges of exercising these rights under the circumstances in which they exists or live. This is simply because, the existing normative social, political and legal structures do not support the IDPs and their quest to own and have access to properties or land.

The issue is why is it difficult to deal with the plight of the IDPs and institute a constructive normative response? Is it so complicated to engage with the narrative of normalisation which should then take place by replacing vulnerability when dealing with IDPs? All these questions challenge the relevance and applicability of IDP policies such as the ‘Guiding Principles’ and the ‘Kampala Protocol on IDPs’. The concern here is that the guides do exist and the practice is what is lacking; implying these guides which are supposed to protect the IDPs has limitations. The extent of limits has been noted as consequences of constraints in the political – economic and citizenship issues. Another key challenge in relation to these guidelines is the scepticism towards affirmative action, human rights and equality for both women and men in relation to property right. The language of equality, human rights and affirmative action do not clearly surface in these documents. Thus, what then informs the property governance from the narrative perspectives of the IDPs property rights in Africa? How do regime governments in Africa define property and what property?

The above questions have been vaguely answered in the Protocol on the Property Rights and Returning Persons which tries to create an innovative framework for addressing conflicts over property and land by utilising both formal and traditional mechanisms to resolve disputes. It also provides for the establishment of a property registration scheme which recognises both customary and statutory land tenure systems. The dismay is that, this protocol conflates a number of issues which might be difficult to apply in the domestic sense. In the domestic avenue, the right of possession is exercised separately from the right of ownership. Meaning the property responds to the international narrative than domestic narratives of property access, control and ownership. Secondly, from the African sense, the meaning of property is also very confusing, for instance the issue of land – which goes beyond property relationships to other significances especially to individuals culture and traditions and livelihoods. Thus, in the technical and legalistic sense, if IDPs right to own and access property is not defended, the IDPs end up losing more than property to the basis of their livelihoods, this conforms to wider connotation and vulnerability.

In Africa, domestic narratives about property and land relate more to the immovable property other than movable property, this comes with unintended consequences. The case of resettlement of IDPs thus becomes of benefit in that the individuals get to acquire some property, but don’t own that acquired property. This subjects the acquisition of land per se by resettled IDPs to debate. For instance, property governance regimes in Uganda recognise both informal and formal systems – but it is majorly influenced by the customary law and thus limiting ownership and access to trustee rights. The informal systems exist in Acholi tradition and transfers of property are only recognised within the rubric of customary law. The customary law, which is the basis of the customary land tenure system, does raise a lot of conflict because it is not legal and largely communal. Consequently, this call for legislative recognition of the local and customary tenure is geared towards reforms. The debate around the practice of formal systems of property ownership is centred on resources scarcity and the need to regulate resource use and utility. Given the conflicting phenomenon about IDP property rights and the need to defend these rights, it becomes increasingly difficult to strike a balance between resource access, use and scarcity. The prevailing alternative that may seem feasible is to apply a human rights based approach and institute clear enforcement mechanism so that IDPs property right is respected.

The metaphysical representation in Uganda is that there are very minimal efforts to remedy and compensate the IDPs by the current regime. There are minimal efforts towards reorganizing and rethinking interventionist approaches with feasible and less consequently impacts to IDP plights, yet this is a protection issue that should be in conformity to international standards. In Luwero district in central Uganda, people negotiated their land rights as they were returning from displacement of the 1980s. But this was difficult especially for the orphans and widow. The issues of identity and citizenship made it even more challenging especially for women who could only inherit land through traditional systems like marriage.

The problem of land as a property has been compounded by the growing and emerging land economics and property governance system which has suffered political bias not only in Uganda but also in countries like Zimbabwe, Kenya, and South Africa. The new masters in town are taking advantage over the vast land and depriving the rest of the population.

A reflection on the consequences of denial of property rights in particular to the IDPs requires significant improvement in the property law. This will necessitate the engagement of the NGOs and Civil society, to continuously participate in the sensitization programmes and provision of livelihood support. This should be strengthened by the provision of legal support for people to follow cases and advance their rights, and civil societies must be engaged in ensuring that the legislation is not watered down to the disadvantage of the poor who become easily disenfranchised.

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* Denis Barnabas Otim is programme officer on the Advisory Consortium on Conflict Sensitive Issues with the Refugee Law Project, Faculty of Law, Makerere University.
* This article forms part of the 'IASFM13: Governing migration' special issue, produced in collaboration with the International Association for the Study of Forced Migration (IASFM) and the Refugee Law Project, Faculty of Law, Makerere University, Kampala.
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