AFGHANISTAN: Why are so many returning refugees still landless?

More than 5.8 million Afghans, about 20 per cent of Afghanistan’s population, are refugees who have returned home since the fall of the Taleban according to UNHCR figures. Many found their houses destroyed or occupied, or discovered that a new set of laws had scrapped their tenancy rights. The government plan for distributing land to them, and to IDPs, is now a decade old, but has been one of the most corrupt and ineffective government schemes. AAN’s Jelena Bjelica looks at how difficult it has been for these most vulnerable of Afghans and asks whether anything might now change.

Shortly after the December 2001 Bonn Conference which established the post-Taleban political set up, at UNHCR’s urging, President Karzai passed the Decree on the Dignified Return of Refugees – decree no 297. It became effective as of 22 December 2001. The decree guaranteed the proper treatment of returnees, their exemption from prosecution (except for war crimes and crimes against humanity) and the recovery of lost property. (1)

Although the recovery of property was recognised as a right, in practice, many returnees found they could not just walk in and reclaim their original houses and farms. New occupants often held documents supporting their own claim to the property. In some cases, they may have actually bought the property (from someone who did not own it); in other cases, the new ‘owners’ had acquired legal titles through dubious legal means. In some cases the new ‘owners’ simply refused to leave.

A further complication was that, for many property transactions, no official documents exist. According to this in-depth 2013 AREU study, many people do not have any documentation to confirm their ownership. (According to Afghan law, customary, religious, legal and administrative documents are legitimate.) The same study found that there was no documentation at all for many rural properties for the period from 1961 to 2001:

Most landowners and tenants held and used their land on trust, under customary norms. These norms were community-based and sustained arrangements, which had evolved over time. These drew upon various customary or religious (Shari’a) norms. The shared conventions agreed that a certain field or house was owned by a certain family.

Under the post-2001 land laws, people who had enjoyed customary usage rights over land, in fact, had no right to own the land. This made many people effectively landless.

Other returnees were adversely affected by a decision taken at the Bonn conference to take the 1964 Constitution as the temporary basis for all laws, until the adoption of a constitution. Presidential Decree No 66 (5 January 2002) abolished all decrees and legal documents enacted before 22 December 2001 that were inconsistent with the 1964 Constitution and the Bonn Agreement. This revoked all land rights people had gained through the land reforms in the 1970s and 1980s (for example 250,000 families had been given 600,000 hectares of land by the end of 1979). It also strengthened the state’s de jure ownership of an estimated 80 per cent of the country’s land. (The remaining 20 per cent of the land was in private ownership.)

In September 2002, less than a year after the Bonn conference, President Karzai established a special Land and Property Disputes Court (by his Decree on the Establishment of Land and Property Disputes Court; Circulate Letter No 4035). The court, that was ordered to adjudicate disputes within two months and was supposed to have a special police force to enforce its decisions, was abolished again in November 2003 (Executive Decree No 89).

The same decree created a new institution, the Special Property Dispute Resolution Court, based in Kabul with the responsibility of handling all returnee and refugee property cases. It had a primary court, which was also responsible for areas outside Kabul and was authorised to travel to the provinces with the Supreme Court’s permission to deal with any special disputes, and an appeal court. A year later, in February 2004, another executive decree (No 112) was issued, to allow claimants who were dissatisfied with the special courts’ judgments to appeal their cases to the Supreme Court and the Office of the President. This legal centralisation of power, in particular in the hands of the president, said the AREU study, discouraged returnees from bringing claims against the government, which itself had become the owner of many estates. According to the same study, “By January 2005, the court had dealt with only five per cent of cases before it and an astounding 80 per cent of its verdicts were being appealed.”

In January 2007, a presidential decree (No 105) abolished the authority of the primary courts to handle cases outside Kabul and transferred it to the provincial judiciary. In July 2007, the Supreme Court, using its authority to establish or change court divisions, abolished the Special Property Dispute Resolution Court altogether and its authority was transferred to Afghanistan’s regular courts.

Introducing a land allocation scheme

There were also many returnees who lost their access to land through the abolition of post-1964 land laws or the dissolution of customary arrangements. Others had never had access to land. In 2003, UNHCR estimated that 41 per cent of returnees had no homes or land, while another 26 per cent owned farms or houses, but had found these destroyed or damaged beyond repair on their return. All over the country, IDP and refugee returnees started forming informal settlements on land they did not own. In urban areas, they joined the ranks of other urban migrants who made up cities’ growing informal settlements. (2)

In the face of all these problems and partially in response to UNHCR pressure, in December 2005, Karzai passed another new decree:Presidential Decree 104 on the Land Distribution to Eligible Returnees and IDPs. It was colloquially known as the ‘land allocation scheme.’ It was supposed to ease the return of refugees, but has been ineffective and racked by corruption.

Presidential Decree 104 created provincial commissions chaired by the Ministry of Refugees and Repatriation that were to vet and approve applications for the allocation of land (Article 7). The Ministry of Agriculture, Irrigation and Livelihoods was charged with finding available land (Article 9), a responsibility subsequently given to the Afghanistan Land Authority (known as Arazi). By 2006, over 48,000 parcels of 3 to 10 hectares (15-30 jeribs) of land had been identified and listed. However, most of the allocated land was actually on the commons. This land only officially belonged to the state, but communities saw it as their own, shared land which they managed communally.

The implementation of the land allocation scheme was far from smooth. Many affected communities rejected the allocation of lands to those they saw as outsiders. An example of this can be read about in a 2010 TLO study  which describes a case in Zhari Dasht, in Zhari district of Kandahar, where UNHCR and the local government had negotiated a permanent settlement, in line with Presidential Decree 104, for IDPs from the north and west of Afghanistan who had settled in Zhari Dasht in late 2001. Their IDP camp was registered in 2004. The local community, however, resisted the plan so strongly that the government decided that the return of the IDPs to their place of origin would be the only viable solution for them. Most of the Zhari Dasht IDPs never went ‘home’, however, but eventually resettled themselves in Kandahar City and Spin Boldak district of Kandahar.

There have been sustained complaints about how the government has distributed land (see AAN previous reporting here). According to a 2015 UNAMA report on land grabbing, government officials often distributed land for personal gain or because of threats to those who were not eligible. For example, a governor (from a province not named by UNAMA) had “sold land allocated for IDPs and returnees for personal profit,” while in another place, “the Decree 104 commission ha[d] not convened in over four years, ostensibly because no state land ha[d] been made available for allocation, as a result of state land grabbing.” Often, land distribution priorities appeared biased, favouring other groups who might legally be given land, such as government employees. In Herat, for example, the municipal land commission distributed 14,000 parcels of land to government officials and only 850 parcels to returnees and IDPs.

The land actually allotted for distribution to returnees and IDPs often ended up being far from the cities and not meeting basic living standards – with, for example, no access to water and no job opportunities, health services or schools. This may partially explain the relatively low number of applications for plots: by the end of 2014, the Ministry of Refugees and Repatriation had received some 266,000 applications. The majority of IDPs and returnees may simply have preferred to reside in urban or peri-urban environments, particularly since many of them had become used to a certain level of basic services while in exile. Another important reason may have been the particularly arduous process involved in applying for land.

Presidential Decree 104 – “inconsistent, defective, vague and uneven”

Getting land through the available legal procedure is difficult to the point of making applicants despair. The Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC), in its 2013 vulnerability to corruption assessment, described how “many of the [decree’s] articles were inconsistent, defective, vague and uneven, paving the way for corruption.”

To register for the land allocation scheme, the applicant first of all needed to submit three basic documents (article 2): a voluntary repatriation form provided by UNHCR, a requirement that excluded people who had not returned via a formal UNHCR-administered process (for some background on this, see this AAN dispatch), a tazkera (ID document) and proof of landlessness, certifying that the person does not own land or a house in Afghanistan under his/her name, nor in the name of a spouse or under-age child. For IDPs applying for a plot of land, a document confirming their internal displacement status is required.

Providing a document proving landlessness, in particular, turned out to be very difficult. Moreover, the entire procedure to obtain a temporary land ownership deed consisted of six stages (3) and 63 separate administrative steps, almost all of which included the collection of signatures from the different authorities and departments of the Ministry of Refugees and Repatriation. MEC, in its report, described these steps as unnecessary, provisional and aimed at “escaping individual responsibility.” Completing the whole process can take years.

The process was so cumbersome that during the second step of the process the minister himself needed to review each individual application and refer them to the concerned directorate. The chief of staff, heads of different departments, heads of units in the districts, provincial directors of refugees’ affairs and so on, all also needed to confirm, sign off or stamp the application. It was not until the 37^th and 38^th step of this six-stage process that the provincial commission actually evaluated the application and determined whether the applicant was an eligible beneficiary.

Such a process provided ample opportunity for corruption and ‘rent-seeking behaviour,’ as confirmed by the MEC assessment. Anecdotal reporting indicated that, for a bribe of approximately 300 US dollars per person in the household, an applicant could speed up the collection of signatures, stamps and sign-offs, at least in some stages of the process. But given the number of steps required to complete this bureaucratic process, many people would have felt discouraged by the sheer amount of bribery needed.

The actual fees were rather reasonable and affordable. Based on the Council of Ministers Resolution No 16 from 21 August 2006 (article 6) a person who was approved to receive the land only needed to pay a symbolic official state fee of 1,500 Afghani (then around 30 dollars) per 100 square meters (1 beswa). Usually the land people received was between three and six beswa.

By the end of 2014, after nine years, according to the UNHCR database, the ministry had allotted only 57,500 plots of land (out of a total of 266,000 applications). Of this number, only 39,000 beneficiaries had actually received their title deeds, while the actual occupancy was recorded at just over 21,000 plots. To put these figures in context, on a rough estimate based on UNHCR figures, there may be more than two million landless returnees in Afghanistan who could be eligible for the scheme.

Anwary as minister

Since the Bonn conference, the Ministry of Refugees and Repatriation has been led by seven ministers: Enayatullah Nazari 2002-04; Azam Dadfar 2004; Sher Muhammad Ettebari 2004-09; Abdul Karim Brahui 2009-10; Abdul Rahim 2010; Jamahir Anwary 2010-14; and, since 2015, Sayed Hussain Alemi Balkhi 2015. It is difficult to distinguish the legacy of each minister, but Anwary’s tenure is probably the best documented in the available media investigative stories, UN reports and MEC vulnerability to corruption assessment.

Jamahir Anwary, appointed in June 2010, (4) was a pharmacy graduate from Kabul University who appeared on the political scene in 2002 as a delegate of the Turkmen shura (representing Turkmen refugees in Pakistan and residents in Afghanistan) who had come to meet the interim government’s senior officials; he was later described as ‘the newly elected representative of the Turkmen community’. (5)

His ministerial tenure (from June 2010 to December 2014) will mainly be remembered for the accusations of corruption, nepotism and embezzlement of government and international aid agencies’ funds. Anwary was called in by both houses of the parliament (Wolesi Jirga and Meshrano Jirga). The first time, in February 2012, it was at the request of the Complaints Commission of the Meshrano Jirga, to answer for the appointment of his niece and two cousins in the ministry. Anwary, however, failed to show up and, instead, responded via the media saying “the three people who have been employed were interviewed by a commission [that] consisted of a representative from the ministry and a representative from UNHCR [sic].”

Then, on 10 October 2013, the Wolesi Jirga summoned him for an interpellation session (isteza), a serious matter where a minister can be sacked if he or she does not provide adequate answers to MPs’ concerns. The Afghan media reported that Anwary was summoned over allegations of graft, including embezzlement of funds, failure to clear the ministry’s power bills, anomalies in recruitment and the ministry’s overall failure to address the plight of refugees.

The allegations had, by then, been well documented. A UNHCR evaluation of its Shelter Assistance Program conducted in the fall of 2012 stated that the Ministry of Refugees and Repatriation was not considered a reliable partner to take over or continue UNHCR’s program, due to numerous instances of corruption, inefficiency, mishandling of funds, lack of human resources and an inability to demonstrate technical or thematic knowledge of the populations falling under the ministry’s responsibility.

A year later, on 28 September 2013, the Independent Media Consortium (IMC) published an in-depth and widely publicised investigative report about corruption in the ministry. Allegations by the IMC included that Anwary had requested UNHCR to transfer tens of thousands of US dollars to the personal accounts of his family members and others.

A month later, in October 2013, the MEC released its vulnerability to corruption assessment on land distribution for returnees and IDPs, also describing widespread administrative corruption, bribery, forgery, nepotism, embezzlement and poor customer service in the ministry. Although the report did not specify when these practices had taken place, it was published three years into Anwary’s tenure. The report also found that senior officials in the ministry were incompetent and the internal control mechanisms were inadequate. It also found the land distribution process to be corrupted, informal and chaotic (see previous section). Moreover, the 2013 MEC assessment indicated that, due to a sloppy and unnecessarily long procedure, the lack of a central database and widespread corrupted practices, in more than 3,500 cases in Kabul province the same plot of land had been distributed to more than one applicant.

Anwary, however, survived the vote of no confidence held on 9 November 2013. His defence was that “we should not point an accusing finger at each other and instead we should jointly work to resolve the problems facing Afghan refugees.” Many thought it pointed rather to problems with the parliament. President Karzai also chosen to keep the widely discredited minister in post.

New minister: new rules… and new problems

When the current refugee minister Sayed Hussain Alemi Balkhi took over the ministry in January 2015, he faced a mammoth task. (6) He not only had to deal with a notoriously corrupt ministry, but his appointment coincided with a growing mass exodus of Afghans to Europe (see AAN previous reporting) and pressure from European countries to ‘take back’ those who failed to get asylum. There was also the ongoing increase in IDPs due to the intensified conflict. (See the ministry’s statistics on IDPs, returnees and refugees, and the 2015 UNAMA report on civilian casualties.)

On 19 May 2015, the new minister introduced what MEC, in its Ninth Six-month Progress Report (25 February 2016), described as a simplified procedure for land distribution. AAN interviews with MEC and ministry officials suggest it is not yet clear how the new procedure will work and whether the minister himself still needs to rule on who is eligible and who is not in the early stage of the application. According to MEC’s monitoring and evaluation unit, 1,534 plots have been distributed based on the new procedure. Everyone is watching to see how the new procedure will pan out.

In the past, as the 2013 MEC report found, the lack of a systematic, computerised database in the ministry provided ample opportunity for forgery and corruption. There is now a database, although it is not yet fully functional – in particular, it is not yet connected to the provinces. However, there is still no streamlined bureaucratic procedure, a ‘one-stop-shop.’

The ministry has also established a legal committee to deal with the 3,500 doubly/triply distributed plots in Kabul province. According to the MEC, 800 cases have since then been resolved. The ministry has also referred several cases to the Attorney General’s Office in relation to the Kabul plots.

Balkhi made these important changes after June 2015 when the High Commission on Migration chaired by President Ghani himself was established. The commission, which brings together 17 different ministries and governmental institutions, held its first meeting on 22 June 2015.

The strong political pressure from the president on refugee and migration issues is related to their high international political profile. Pressure from the president also intensified in the run-up to a UNHCR meeting in Geneva in October 2015 (see here and here), at which aid for the refugees’ ministry was discussed. Both donors and the government had slashed the ministry’s budget earlier in the year. (7)

Solutions never explored and outlook for the future

After the passing of many years and the spending of billions of US dollars, Afghanistan still has huge numbers of returnees and IDPs who are landless. The fact that only a small portion of the millions who could have applied for the government’s land distribution scheme have done so hints at fundamental problems: either people lost hope and interest in the scheme, or the land offered (far from the cities, with not even basic services) was not attractive. A high number of landless returnees and IDPs in Afghanistan have clearly expressed a desire to be located near or in cities, but the government has never proposed public housing schemes which might have catered to them. Possibly, such solutions would have been seen as too ‘socialist’.

Both CEO Abdullah Abdullah and President Ghani promised in their election campaigns to facilitate the return of refugees still living abroad. Part of that would have to be creating a system which helps those who have already come ‘home’. There is some sense that the government wants to clean up the Ministry of Refugees and Repatriation. The spotlight is now on the ministry to see if it can rescue its damaged reputation and start helping those it is supposed to serve.

(1) In 2001, the number of laws regulating land issues was rather complex: next to the constitution, more than 70 laws, edicts, decrees, orders and administrative decisions regulated the land rights. Currently, there are still over 30 different pieces of legislation. For more information on land management and land administration issues in the post-Bonn era see this detailed AREU study: Land, People, and the State in Afghanistan: 2002 – 2012; February 2013

See also the 2014 UNAMA report on the legal framework and the Norwegian Refugee Council’s A guide to property law in Afghanistan, Second Edition 2011.

(2) In Kabul, in 2009, the informal settlements (where settlers included poor people, urban migrants, returnees and IDPs) made up an estimated 69 per cent of the city’s residential area (from Sheila Reed and Connor Foley, Land and Property: Challenges and Opportunities for Returnees and IDPs in Afghanistan, unpublished report prepared for the Norwegian Refugee Council, June 2009).

(3) A permanent ownership deed is supposed to be given by the municipality after five years (article 13), while the beneficiary has to refrain from selling the land for ten years (article 11). The six stages of the whole process are: 1 submission of the application and identity check; 2 checking the proof of repatriation or internal displacement; 3 recording and registering, determining whether this is a deserving or non-deserving applicant; 4 payment and allocation of the land; 5 receiving a temporary deed, after completion of 30-40 per cent of the construction work; 6 receiving permanent ownership.

(4) Between December 2009 and June 2010, Karzai tried to complete his cabinet three times, but never managed to get approval for the full cabinet. In the end, six of the 25 ministries continued to be headed by acting ministers. See previous AAN reporting on this issue here,  here andhere.

(5) Anwary’s official biography also has him as the leader of the Turkmen Peace Council and a member of a leading delegation of carpet traders. He was a delegate for the 2002 Emergency Loya Jirga and, from 2006-10, the Director General for Pharmacy in the Ministry of Public Health.

(6) Sayed Hussain Alemi Balkhi, Abdullah Abdullah’s appointee, was approved by the Wolesi Jirga on 26 January 2015. He is a Shia Sayed from Balkh, a religious scholar and founder of one of the small jihadi parties that fought the Soviet occupation, was backed by Iran and formed Hezb-e Wahdat-e Islami in 1989. He was elected as an MP in both the 2005 and 2010 elections and resigned in 2013 to run as vice president to Gul Agha Sherzai in the 2014 presidential elections (see AAN earlier dispatcheshere and here)

(7) The Afghan government slashed the discretionary development budget for the Ministry of Refugees and Repatriation from 1.2 million US dollars in 2014-15 to 250,000 in 2015-16, due to budgetary constraints and the ministry’s poor expenditure track record. The operational budget for the ministry for 2015-16 was 3 million US dollars. Additionally, aid funds had been on hold for most of 2015 (see, for example, SIGAR’s recommendations to the US government in its August 2015 report); it was concerned about the widespread corruption in the ministry during the last cabinet of the Karzai government.

The ministry’s 2016-17 operational budget is 3.9 US dollars. The development budget, both discretionary and non-discretionary, is 3.7 million US dollars.