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Sunday, April 14, 2024

Land disputes: Ticking time bomb

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By Lawyer Abdoulie Fatty

Land is inherently personal and precious both in terms of sentimental and emotional attachment to it and its stock as a valuable asset. I am perhaps too young to accurately capture how my parents and grandparents’ generations acquired land. However, we were told, especially in rural communities, or perhaps even in urban areas, one could acquire land by simply going to the alkalo, village or town elders or kabilo elders with a few colanuts and ask for land for farming or dwelling.

The perception and ideological calculation of land ownership and possession was simple and not monetary-oriented. Land was communal in nature and thus a beneficial asset to all. It was viewed from a local and perhaps morally constructed prism in that land was for farming from which to feed one’s family but not a speculative commercial asset.

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Gradually however, as the marketisation of land in terms of its collateral value increased in developing agrarian societies, and perhaps some of this is linked to contemporary global financial influences, such as policies designed by World Bank economists to reform land use and modes of ownership from what it perceives to be archaic traditional use to Eurocentric models. This involves, among others, a radical shift from historical customary tenure to registered titles to enable customary land owners to use their titles as collateral to secure bank loans to expand their agricultural productivity levels or starting small scale enterprises deemed more profitable than traditional subsistence farming.

These robust and novel World Bank driven micro and macroeconomic policies were aimed at expediting growth and prosperity to eradicate poverty by turning dormant land into profitable commercial commodities and opportunities to accelerate economic change. These policies were deliberately encouraged and aggressively pursued in Africa and Asia and The Gambia is no exception in term of its spiraling effects. These policies, while largely successful, have also exposed agrarian societies to social and economic destruction in the hands of greedy multilateral corporations mostly in the Gulf States and powerful local individuals, with wealth and agency, intent on large scale land capture, often from impoverished communities.

Some Gambian intellectuals have recently commenced lamenting the issue of land in The Gambia and predicting that unless there is an urgent remedy, the malaise is much like a volcano on the cusp of furiously ejecting lava. Here, heightened tensions where communities take up arms are sporadic and less menacing compared to severities in Kenya and Ethiopia.

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However, unless urgent solutions are found, these spits of lava will amplify and the consequences will be irreparable. In The Gambia, land disputes or land-related problems, I argue, are perhaps the most relevant and relative issue in our urban settlements right now. The political economy of land ownership and land grabbing in urban and semi-urban areas and how patterns of empirical land possession and ownership and use have changed in the last 30 years, require serious academic and practitioner studies. This may require appropriate funding by the UNDP or FAO for serious work to be carried out in this area. We need to reveal the underlying problems before we begin to find solutions because land disputes and related problems are often multiple, polarising and deeply contentious.

Land ownership is now synonymous with wealth and that has motivated a certain section of the population to aggressively grab and amass more and more land purposely as long term investments. Thus, the more the traditionally perceived rural populations in the urban areas access new wealth linked to inflated land prices, the greater the need to accumulate more traditional land. This new phenomenon, which has become complex and far-reaching, destroyed the social relationships that previously existed in local communities. The vast financial benefits have thus now outweighed the essence of maintaining social cohesion and fabric.

The marketisation of land and housing in the Kombos and how this has influenced and impacted socio-economic and political economy of land among traditional and customary land owners has significantly elevated the economic status of these rural populations. At the same time, this has also created a plethora of problems that had previously been local in nature and therefore resolved locally by the alkalolu. However, these disputes have become unprecedented and multidimensional, one land with multiple individuals, all claiming legal rights and equitable interests in the same piece of land. Inevitably, more sophisticated and overarching mechanisms were required to address these disputes.

These mechanisms have become legal recourses and the destination being the high court. The trials are not only protracted, often taking years with little or no progress, but ridiculously expensive. If a matter ends up in the Court of Appeal and the Supreme Court, it may sometimes drag for five to seven years or more. Kombo North and Kombo South are epicentres of land disputes, in particular Brufut, Sukuta, Tujereng and Sanyang. I can reasonably say that a significant percentage of “new” (previously used as farmlands or hectares of bushes allocated to kabilolu) land in Tujereng is a subject of litigation either at the district tribunal in Gunjur or group tribunal at Governor’s Office in Brikama or High Court (Brikama and Banjul). Some of these disputes are intra, between members of the same kabilo. Others are disputes between different kabilolu or as often the case, between individual claimants.

As counsel, a considerable number of queries that I receive from prospective clients are land related. Current trends suggest that this will get worse and with serious consequences. The worrying fact is, one can acquire an alkalo transfer certificate in five minutes. More often, the alkalo or his aides would not even take the trouble of visiting the land in question to confirm the ownership or identity of the land being sold and bought and this presents some of the deep underlying problems that we face daily and this dysfunctionality continues to exacerbate the issue further. Some alkalolu will insist on payments of D10,000 (D5,000 is the norm but I have heard complaints of some alkalolu asking for a percentage of the sale price) before they issue the certificate of title.

This is a serious source of revenue for them and it now seems this “unregulated” and lucrative business/economic benefit for alkalolu means there is no incentive for them to question and verify the credibility and authenticity of the seller’s ownership of the land being sold because if a sale falls through, they are deprived of that D5,000 or more income. Thus, they will turn a blind eye even where they are aware of a residual problem and dispute in the land and also where they are aware that the seller has no legal power or authority to sell. This is because, more often than not, if land becomes the subject of litigation, the burden falls on the buyers or those claiming to go to court or seek meaningful ways of amicable settlement. A constituent that is disproportionately affected is Gambians in the diaspora. Meanwhile, the alkalolu and the sellers simply become mere appendages in these legal disputes, not bearing the brunt of their dodgy enterprise, with little or nothing to lose.

In places like Tujereng, Sanyang, Brufut and Sukuta, a lot of people involved in land transactions are vastly experienced with the legal processes and are acutely aware that they can engage in fraudulent land sales and not suffer any consequences, leaving the buyer in financial tatters. Some will even, as a matter of fact, remind you that if these matters end up in court, they will drag for years and that there will be an injunction restraining all parties from interfering or developing the land until the dispute is resolved by court. They will also hasten to add that land disputes are generally civil in nature and not criminal where there is a potential risk of prosecution, conviction and imprisonment. So in their calculus of risks associated with unlawful land schemes, the benefits far outweigh the possibility of punitive criminal sanctions. The police often charge individuals with obtaining money by false pretence but as is often the case, these cases drag in court for so long that when the complainant becomes aware that there is no end in sight, they simply cut their losses and naturally, the matter fizzles out and the accused evades criminal accountability and punishment.

Imagine a particular land was bought by a Gambian in Europe or US for several hundred thousand Dalasis. A storey building is built and nearing completion. Five years after the purchase, suddenly, without the remotest hint or warning, someone comes to the land and abruptly asks the builders to stop work and leave the property immediately or face certain assault and injury, claiming ownership of the land, apparently inherited from his family’s customary land, formerly farmlands. This will be the beginning of threats, criminal damage of part of the fence and building and attacks on the builders. The innocent purchaser in Europe or US, having spent at this stage, millions to develop the land, is thrust into this conundrum, dilemma and emotional turmoil. If an injunction is granted, all works stop. Building materials become exposed and ultimately lay in ruins and waste. The new claimant has nothing to lose. He is consciously proud that he has succeeded in frustrating the development of the buyer, because he knows even if the matter takes five years, he is not affected because not a Dalasi of his money has been expended in the property. More vexingly, on the face of it, you can tell that his claim is frivolous, motivated by greed.

Instead of going through a protracted and grueling/lengthy trial, some owners will be willing to “compensate” the new claimant a few hundred thousand dalasis to settle the matter so that they could concentrate on finishing their building. The claimant walks away with a cool settlement package. He has got what he wanted. I must say that, some of the new claimants are bona fide and legitimate claimants. It may be the case that some unscrupulous agents, private or government officials at the relevant departments, illegally and unlawfully seized and allocated themselves someone else’s land or sold it to innocent buyers. Hence, land disputes are sometimes complex and profoundly toxic.

The Barrow administration set up a Land Commission in 2018. I am not sure of the outcome of that commission. Last year, a member of one of the biggest kabilolu in Sanyang expressed his disapproval of the commission on basis that its membership is not representative (regionally) of the Kombos and he believes, they would not understand some of the subtle complexities and nuances of land problems in the context of having a deeper understanding of land history, possession, use and governance in the Kombos among rural communities. I am not in a position to agree or reject his concerns but it is clear that what we need is a comprehensive review and overhaul of the regime, traditional and legal, that govern land in this country, especially in the Kombos. To achieve this, we need serious legal reforms for the effective governance of land acquisition. This must be done urgently. Unfortunately, the state or those acting on its behalf are one of the biggest perpetrators in dispossessing traditional land owners of their land and giving them away to the highest bidders, instead of public use such as schools, markets and health facilities etc. If we ignore the pitfalls of land-related-disputes, we are doing it at our peril. Sooner or later, the volcano will erupt and communities will lay, not in ashes of lava, but pools of blood.

Abdoulie Fatty is a lawyer at AFatty & Co. He previously served as a magistrate in Banjul. He studied in the UK and was called to the Bar of England and Wales. He has LLM in International Human Rights Law and Practice and his LLM dissertation looked at truth commissions and transitional justice, specifically, historical land injustices and inequities in Kenya and how they can be addressed during political transitions by truth commissions.

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