- Jo Beall
- Harry Dimitriou
- Edesio Fernandes
- Nigel Harris
- Michael Mattingly
- Desmond McNeill
- Sheilah Meikle
- Caroline Moser
- Babar Mumtaz
- Geoffrey Payne
- Ronaldo Ramirez
- Michael Safier
- Keith Sargent
- Katja Schäfer
- Michael Slingsby
- Anna Soave
- Nadia Taher
- John Turner
- Patrick Wakely
- Louis Wassenhoven
- Adrian Atkinson
Emergency Lex - and other improbable tales from the law zone (Patrick McAuslan)
Submitted by frankie on Sat, 2009-07-18 20:59.
The views expressed in 'Recent News & Reflections' are those of the author and do not necessarily reflect those of any of the governments, organisations or agencies with whom they have been working.
Before his untimely death in February 2014 (see Patrick McAuslan MBE, 1937 – 2014: an Appreciation (by Edesio Fernandes) Professor McAuslan reflected on some of the challenges and pitfalls involved in acting as a consultant in the field of law and development, with particular reference to his area of expertise of land.
First although I write about law and development and have some reputation in the field of law and development, I don’t really see myself as a practitioner in the field of law and development. When I am asked to become involved in some project involving land or local government – my other area of expertise – by a UN agency or a bilateral aid agency like DFID or an IFI like the World Bank its because of my presumed expertise in land matters not because I am have expertise in law and development. That is not a recognised area of professional practice. It’s a way of looking at legal problems; a way of making some sense of them and a way of bringing to bear an analytical framework of making sense of what one is doing in the field.
In many respects, I have the feeling that if I set out what I do and how I go about my work, it will turn out to be rather boring. Some of you may have read Emergency Sex and Other Desperate Measures: True Stories from the War Zone a very moving and in places amusing book about life in the front line of humanitarian work which recounts some of the difficult and hair-raising situations people doing that kind of work can find themselves in. Nothing like that has happened to me. As a part of my work I have had to fly in some pretty dodgy aircraft – Russian helicopters in Sudan of the kind that crashed and killed John Garang of the SPLA/M, (and in Sierra Leone) Nigerian flights that had lost their way to an airport surrounded by hills in Jos, Nigeria, old Russian Aeroflot planes with a distinct lack of safety facilities flying into Hargeisa, Somaliland, swooping into Kabul airport at a very steep and fast rate of descent to avoid the possibility of missiles but these are all fairly standard hazards and one quickly gets used to them.
Ditto on the roads; I remember one tense moment in Bossaso in Puntland Somalia; I was on a UN-Habitat mission to review land and local government laws and policies in Puntland and we were waiting outside the offices of the Mayor to go and see him. Our vehicle was hit by a ‘technical’; a 4×4 with the top sliced off and two machine guns fitted which was and probably still is the preferred war vehicle of Somalia. Our driver was outraged by the carelessness of the driver of the technical and got out of our 4×4 to throw stones at the technical! He was restrained by onlookers who knew only too well the likely reaction of the technical. We sat in our vehicles trying to be invisible. The story had a happy but unlikely ending. Our driver went to the HQ of the Puntland security forces in Bossaso to complain about the accident: he received an apology and an explanation and was told that they would pay for the damage; the technical in question was on a mission and had been in a hurry.When it comes to work its much more mundane. As I will discuss later the worst that has happened is a senior official shouting at me and more or less threatening to have me kicked out of the country much to the acute embarrassment of my local colleagues with whom I was working. More of that later. My work over the years can be classified into the following four sub-areas and tasks:
- In the early years of my involvement I was hired by UN-Habitat and occasionally UNEP to advise on and draft laws on town and country planning, urban land development and the environment in stable countries with operative central governments: Tanzania, Trinidad and Tobago; Malawi; Maldives; BVI; TCI; India Uganda just after the fall on Amin when yes one did hear the gunfire at night as scores were settled in Kampala;
- Then I had an interlude for three years when I worked full-time for UN-Habitat as a land management adviser in the Urban Management Programme. I was based in Nairobi and went on numerous missions but the longer I stayed in the job the more I became an UN administrator flying to and from Nairobi. New York (to UNDP) and Washington (to the World Bank) our partners in the UMP and sending other people out to do the jobs I had been doing when a consultant;
- From about the mid 1990s after my return from the UN I have become much more involved in land tenure and local government issues, natural resource issues and less involved in land planning issues. These are much more political and my work has been much more in the public eye and much more widely commented on. I have also worked for a much wider range of agencies: World Bank; DANIDA; FAO; DFID; GTZ; USAID as well as UN-Habitat. The countries I have worked in have included Tanzania, Uganda, Maldives, Bangladesh, Yemen, Namibia, Lesotho, Swaziland, Botswana, Serbia, Ukraine;
- Then increasingly over the last 4 or 5 years, I have become involved in land and local government problems in post-conflict societies where these are highly political matters and anything one does is likely to offend someone. I have worked in Rwanda, Sudan, Afghanistan, Somalia and Somaliland. The work has involved both reviewing existing administrative systems and policies and making suggestions for changes and drafting laws to implement agreements already made.
Perhaps the way to proceed is to describe how I set about my work. When I was first hired by the predecessor of UN-Habitat, the UN Centre for Planning Housing and Building based in New York in 1977, there was little understanding of the role of law in development, little knowledge of what lawyers did or how they did it. The 70s were part of the era when international and national agencies didn’t rate law as a necessary input into development. The UN agencies responded to requests from countries; they didn’t offer the services of lawyers.
So Tanzania asked for a legal input into its programme of developing Dodoma as the new capital of the country; the UN put the word out to its members. The Canadian head of the UN team working in Dodoma put forward a nomination of someone from Canada he knew; the British Government forward the doyen of British planning lawyers, one Sir Desmond Heap and I applied as a result of an advert in a Swedish newspaper sent to me by Yash Ghai, a former colleague of mine from the University of Dar es Salaam who was working in Sweden at the time, having been vetoed by the then Attorney-General of Kenya for a senior post in the Law Faculty in the University of Nairobi.. Much to the chagrin of both the Canadian head of the team and the British Government I was selected by the Attorney-Geneal of Tanzania, a former student of mine who chose me on the not unreasonable grounds that I knew something about the laws of Tanzania. That was my introduction to the world of consultancy.
I arrived in Dodoma: no-one knew what I was supposed to do or how I was supposed to do it. There was a feeling that the law was a hindrance to getting on with the job of developing Dodoma as the capital and I had to sort it out. I had a local counterpart but he too was a complete novice at the game. The Canadian master planners who had produced the Master Plan for Dodoma in Toronto regarded the law as pretty irrelevant; for them it was planning by the bulldozer. I had carte blanche to get on with the job. I am spending some time on this first mission I ever undertook because in retrospect what I did there influenced how I tended to proceed thereafter.It was really a question of common sense and applying to the task of the practical assessment and application of the law the same approach as I applied to academic work and the preparation of an article:
- find out what the existing law is;
- find out how its applied;
- talk to officials applying the law to see how they see the issues and problems;
- come up with an Issues and Options paper setting out the issues, possible solutions and preferred options;
- set out a timetable for developing the preferred options into a law.
In the case of Tanzania, I was immensely fortunate that I knew all the key lawyers in government and had no difficulty in going to see them and discussing my ideas with them. Through them I could get to see other senior officials and Ministers. Once the head of the Dodoma development agency knew I had these contacts, I could get to see him very easily in Dodoma and get things done. I worked closely all the time with my local counterpart, the corporation lawyer. So in the space of three months, I drafted the relevant regulations to give the agency the necessary powers it needed to plan and develop Dodoma, drafted a Bill to set up a specific Dodoma UDC wrote manuals of practice and got the message across within the agency that law was relevant and things would go better if it complied with the law. All my draft regulations were promulgated unchanged within a very short space of time.
The keys from this mission which have from that time on have been my general approach are:
First, get on side with the key lawyers and especially the legal draftspersons.
Explain to them that you are not usurping their role. You are preparing a report for a Ministry or some other agency. The report might take the form of a draft law but it is only a report and it is for that Ministry etc to decide what to do with it. If it passes it on to the government drafting office, then they will take it over and deal with it as they see fit following government practice and procedures. Draftspersons don’t like outsiders taking over their functions and are in a powerful position to scupper those who try.
In Afghanistan, my first official meeting was with the deputy Minister of Justice. We immediately established a rapport as he had a PhD from London University and knew all the libraries and places I now work in. He asked me how soon I could draft a land law for the country. I had been there about three days. I explained that there were quite a few issues which needed to be settled before that could take place like the preparation of a national land policy and a review of the existing laws to see what was missing or needed revision. I then paid a visit as soon as I could to the government draftsperson to explain my mission to him: to review the laws and make suggestions for changes. If I thought any new laws were needed I would consult with him. His response was positive and helpful precisely because I had gone to see him. What legal consultants usually presented him with was a bill drafted elsewhere –usually in a lawyer’s office in the US – and he was told to get it enacted as soon as possible. Sometimes he was getting two bills on the same topic drafted by consultants working for two different agencies. Not surprisingly many of these bills were and are not going anywhere.
In Azerbaijan, my mission on behalf of the World Bank was to draft a land acquisition law meeting acceptable international benchmarks which is a precondition to the release of some $400 million of loans from the Bank for a major programme of road building. The project was run by the Ministry of Transport and I reported to the Project Director in that Ministry. But when I went to see the Deputy Director of the Drafting office in the President’s Office he emphasised that I should work closely with him and his office and not worry too much about the MoT which didn’t carry any clout with other Ministries. Once he was satisfied with the draft, things would go ahead. I worked closely with him – the Project Director in the MoT is happy with the arrangement – and good progress was made. The DD hosted a very convivial dinner for me as a thank you for my work in December. Azerbaijan is a secular state but Islam is the basic religion of the people. But that did not stop numerous toasts in vodka at the dinner.
Second, become familiar with the laws you are going to be working with.
This may sound rather obvious but consultants who see their role as drafting laws to replace existing laws tend not to bother to grapple with laws which by definition are deficient and need replacing. But if you don’t know what’s there, how can you set about drafting a new law to replace existing law and fit it into the existing national corpus of law. Uganda received a grant to review and upgrade its commercial laws. The contractor was a US firm whose lawyers for the most part in Philadelphia drafting laws modelled on US commercial and company laws which were then sent to Uganda for enactment. The Uganda Law Reform Commission which had been by-passed in the process reviewed the drafts and found virtually all of them wildly impractical as they were attempting to impose US laws on a legal system which for better or worse was based on English common and statute laws.
Increasingly I am working in countries which do not have the common law and do not work in or sometimes do not speak English very much. My first port of call after getting a request to submit an EOI or come in with a firm submitting an EOI or a bid for work is Google: I ask it to find e.g. the Land Law of Azerbaijan in English. I would say 8/10 Google finds it: often the US State Department has translated the laws of the country concerned or some obscure Mid-Western US Law School has a programme on the law of the country: I discovered a lot of Ukrainian law in English from one such programme before I went to Ukraine on a World Bank funded Community-Based Carbon Sequestration Project under the Kyoto Protocol. My Ukrainian colleagues were astonished that I knew so much about Ukrainian law when I arrived; by the end of my mission they were suggesting we wrote joint articles together on aspects of Ukrainian forest law. In Serbia, I told my Serbian counterparts of translation services in Belgrade which translated laws into English they didn’t know about. In a university bookshop in Baku, I discovered an Azeri-English Law Dictionary and larded my reports thereafter with Azeri legal concepts. It makes an enormous difference if you can demonstrate by such practical steps that you know about and are interested in the law of the country you are advising. Your report and suggestions will be taken that much more seriously.
Third, make sure you have a counterpart; establish a good rapport with him/her.
In most projects, a local counterpart is written into the arrangements but not always. In Tanzania, where the British Government was asked by the Tanzanian Government in 1995 to field me to draft new land laws to implement the National Land Policy approved by Parliament in June of that year, I arrived in January 1996 to start work to find that no one had thought about counterparts. One of my first actions was to put up a memorandum to the relevant official in the British High Commission – then the ODA was bundled up into the BHC and was not separate as DFID is – asking for funds to hire local counterparts. This was quickly agreed and I had a team of four local counterparts – a legal official from the Ministry, a person from the Government Draftsman’s Office; a academic/practicing lawyer specialising in land law and a member of the Tanzania Law Reform Commission – who worked closely with me. We met each Friday to review the work I had done during the week and sometimes during the week informally as well.
I have been very fortunate on the whole with my local counterparts. In many countries, to become involved in a donor funded project is a very welcome boost to one’s salary so good people are attracted to the post. But as noted above it helps if you can demonstrate a knowledge of and interest in their law and legal system. Serbia is an interesting example. I was there on a World Bank project reviewing the land laws of Serbia and any possible reforms that might be needed in the wake of the introduction of a new system of title registration, much opposed by the legal profession that objected very strongly to replacing a registration system over 100 years old and operated by the courts for a Torrens type system operated by an administrative agency. I had some sympathy with the position of the lawyers and my counterpart introduced me to her ex-professor from the Belgrade University Law Faculty who was the leader of the antis. Had it been known that I had met with him I might have become persona non grata with the administrative agency which I worked in and reported to but I made the point that I needed to know all sides of the issue to understand the law and this was accepted both for me and my counterpart. It helped that the leader of the antis and we were both Professors of Law. He presented me with the latest annual volume of the Law School’s Yearbook – 785 pages on land registration and why the current system should be retained. Only 12 pages were in English but the gesture was much appreciated.
Fourth, clear your modus operandi with the agency you are working with.
It should not be assumed that as a lawyer you are always working with or in the Ministry of Justice. Over 30 years of consultancy it has been a minority of occasions that that has been the case. I have found myself working to or reporting to Ministries of Land, Housing, Natural Resources, Local Government; Interior, Transport, to City Councils or Commissions; to Urban Development Corporations, to Land Registration Agencies. Its important to establish a rapport with relevant officials in these institutions. Apart from anything else they will be providing you with office space and you need comfortable office accommodation. When working in Tanzania on the Land Bill I reported to the Permanent Secretary of the Ministry of Lands, Housing and Urban Development. He allocated me an Assistant Minister’s office – there was no Assistant Minister at the time – and I was welcome in his office any time. We talked not just about the Bill but about land and administrative problems generally and it helped me greatly to understand the context of my work. Not that it was all plain sailing. In my work plan I made it clear that I regarded the Report of the Presidential Commission on Land Matters of 1992 which sparked off the whole land reform movement in Tanzania as one of the key documents to refer to in drafting the new law. The PS took issue with this. The NLP was the key document; the Report was at best a subsidiary document only to be used when the NLP was silent on an issue.
In Trinidad and Tobago, where I was a UN-Habitat consultant working on a new town and country planning law, I was working in the offices of the planning department. It was 1988; England were playing the WI in England and losing badly. I was the butt of caustic comments daily but it helped break the ice and we all got on well. The Chief Planner herself took me on a guided tour of the whole island pointing out the planning issues which in her view needed legislative solutions. Other planners in the office became family friends and visited us in the UK. My draft Bill however was never enacted; it was overtaken by a decision to proceed to a major environmental management law instead.
Sometimes one can come unstuck. This occurred in the Maldives. I was a member of a team working in the planning department developing a housing and land policy for the country in February 2002. I was looking at the land laws. A draft land law had been before the Majlis (the legislature) for about 5 years and seemed to be going nowhere. It was not a good law; badly drafted, leaving a lot of loose ends open, not covering the key issues. I wrote a memorandum to that effect suggesting a complete rethink of the draft. With some officials from the office I went to see the A-G to discuss the draft law and how to proceed. I sent a copy of my memo in advance.
When we arrived, he blew his top and castigated me in a way I had never before experienced. I had penned a useless memorandum; it was not worth my being in the country if this was all I could do; I had not made any constructive comments. He didn’t wish to see me again. End of meeting. My colleagues from the planning office were acutely embarrassed by the whole performance. They said the A-G was known as someone who very easily lost his cool. One problem was that his brother had been the principal drafter of the land law. There was well known tension between the A-G and the Ministry of Lands which we came under as the two offices had very different ideas about the possible nature and content of a land law. In some respects the A-G was quite forward looking in his thinking about land management in Maldives: he wanted to rid the country of its feudal landlord/tenant relations. No doubt the fact that his first degree had been from the Patrice Lumumba Friendship University in Moscow had helped shape his views on feudalism.
The second mission of our team was in September 2002. The A-G had worked hard in the intervening period and had persuaded the Majlis to enact the Land law unchanged from the draft I had criticised. So we were presented with a fait accompli. Perhaps if I had been more diplomatic in my criticisms, some changes to the draft might have been acceptable. It was a useful lesson to learn. Even if you think something is rubbish, it’s not always politic to say so.
But there is a twist to this story. In 2006 I was invited by the Law Reform Commission of Maldives to come and help them…redraft the Land Law. All my criticisms of the original Bill had proved to be correct so I was told, so I was the person to come back and draft a replacement, which I have done! The former A-G is no longer in office. He has joined the opposition but is not making much headway there. The A-G I met in September 2006 commented that he hoped that this visit would be a more pleasant experience than my last visit to the A-G’s office. He too later left government and was an opposition Presidential candidate for the elections in September 2008.
Fifth, keep in close touch and establish good relations with the funding agency.
This again is one of those maxims that might be thought to be a ‘statement of the bleeding obvious’ but its necessary to highlight it. Its not just a matter of self-preservation and ensuring another contract later on but a recognition that the funding agency has its own contacts with the client government, has its own experts in the field office and is a vital resource for your work. The examples I could give are legion. In Afghanistan, my first mission in 2005 was for UN-Habitat. The agency had a very good reputation in Afghanistan as it had stuck it out in the late 1990s during the Taliban era working with the urban poor. The head of the Habitat office in Kabul was a forceful yet very open and pleasant person who had built on the reputation of the agency. So doors were open to me and I could be immediately effective because I was seen as being part of an agency committed to Afghanistan. My second mission in 2007 was for the World Bank. My immediate boss was based in New Delhi but came frequently to Afghanistan. She had done her PhD in Afghanistan in the late 70s, could speak Pashtun and had a range of contacts herself because she was seen as someone who was committed to the country in a way many aid and IFI officials were not.
In Uganda in 1998 I was invited to participate in a workshop on the new draft Land Bill. I was asked to speak on whether it was feasible and implementable. I said in my contribution that I couldn’t answer those questions because the Bill was so badly drafted I couldn’t understand much of it. The Minister – a former student of mine – asked if I would come back and help in redrafting the Bill. I replied that he would have to speak to the head of the DFID office in Uganda. The Minister then got up and announced that he was glad to be able to say that DFID had agreed to support my return to help with redrafting the Bill. Fortunately both the Minister had good relations with the DFID official and in the short time I had been in Uganda I had got on well with him too so he agreed to my returning both for a short-term input in 1998 and then a one year input in 1999 – 2000 to head up a longer term DFID input to assist with the implementation of the new Land Act.
But there was a downside to this. At the time the DFID office in Uganda came under the overall supervision of the DFID office in Nairobi, Kenya. Officials there clearly didn’t like the rather pushy young official in the DFID office in Uganda and rather took the view that they had been bounced into supporting the one year project I was the Chief Technical Adviser on. So they were never fully behind it and when central government officials in Uganda set out to sabotage the project – its purpose was to implement the Land Act which in accordance with the Constitution was to decentralise land management to the districts and so remove power and its benefits – licit and illicit – from officials at the centre – and allege financial mismanagement and other deficiencies on the part of project personnel, no support for the project was forthcoming from DFID in Nairobi.
A third example. I was team leader of a large DANIDA team consisting of Danes, me and several Tanzanians to bring forward proposals for the reorganisation of the Dar es Salaam City Council into a two tier local authority. At the time of the mission in 1997, the elected city council had been replaced by an appointed Commission. The deal between DANIDA and the Tanzanian Government was that our report would be acted upon and elections would follow to restore a democratic local authority. I was team leader – a position I was asked to fill as the two leading Danish contenders had slagged each other off to the DANIDA office in Dar to the point that it would accept neither as the team leader. I kept in close touch with the relevant officials of DANIDA. We completed our report and handed it in. One week later the Tanzanian Government announced that it was postponing elections to the city council until national local government elections in a year or so. DANIDA was not best pleased but defended the team and the report which was being accused both within and outwith Tanzania as being part of the ‘plot’ to postpone elections. We were as much in the dark as DANIDA and keeping them closely informed of what we were doing all the time enabled them to defend us convincingly.
Sixth, set out the principles you use to back up your specific recommendations.
Many if not most reports tend whether by accident or design to conceal the principles that inform them. Authors often argue that setting out principles is an academic affectation; clients want solutions, not woolly waffle. But reports which just consist of ‘solutions’ are in fact full of principles but they are concealed. It has always seemed to me that one should show respect for the client by explaining to the client why you are making the recommendations you are and this means setting out up front the basic principles that you are using to arrive at your recommendations.
In the early years of the UMP in 1986 I was asked to prepare a paper for a conference on aspects of urban land management and I set out there the principles I thought should inform any system of land management. They seemed to meet with approval and the paper I wrote there was published some years later in Regional Development Dialogue, the journal of the UN Centre for Regional Development. I have used them constantly ever since. This is how I set them out in a report I wrote as a contribution to the development of a new national land policy for Botswana in 2002:
Principles help determine the style, content, and thrust of any reforms, so that a discussion and clarification of principles are of direct practical reference to improved land administration. The principles suggested as relevant are as follows: any legal input into a land market should aim to encourage, strengthen or introduce a system of management, planning and regulation of that process which is equitable and socially responsive, flexible, environmentally conscious, participative, efficient and administratively fair.
I have adapted these principles too for use when reviewing the system of municipal government in Afghanistan. Setting out principles allows the client to see where you are coming from and enables the client to engage with you and if necessary disagree with you if it thinks one or more principles are irrelevant in its own national context. I cannot however recall an occasion when any client has dismissed either the principle of putting forward principles or the principles put forward. Since the UN City Summit of June 1996, I have also tended to use the principles set out in the Habitat Agenda and the Global Plan of Action to support my recommendations and drafts on many aspects of land management pointing out that governments which signed up to the Habitat Agenda are under at least a quasi-legal obligation to carry out its recommendations.
Seventh, don’t get too personally involved or take personal criticism to heart.
It will be a rare consultant that can go through a career without receiving some flak. If you let it get to you, you won’t last. This applies to any public official. Yes you cannot ignore it and should try to learn from it but don’t let it get to you. Equally, don’t become too personally involved in a project so you take it almost as a personal insult or criticism if your recommendations are not accepted. I think the chairman of the Presidential Commission on Land Matters in Tanzania fell into that trap when he took very personally the rejection of a key recommendation of the Commission that Tanzania should establish a new constitutional entity – an independent Land Commission that would be answerable to Parliament and in which all land in the country would be vested so removing it from the President’s control. Very rarely for Tanzania, the 9 person Commission report had attached to it 4 notes of dissent all on this recommendation so in effect it had gone through on the chairman’s vote. It was not surprising then that the government did not accept so far-reaching a proposal when the Commission itself was so sharply divided on it.
I myself have come in for constant criticism from the chairman for my work in drafting the land laws that provided for the implementation of the NLP. Also from an author of a book and several articles about the law. But so what? That’s the stuff of academia and there can be little doubt that discussion of the law and its deficiencies has increased general knowledge and understanding of the law. Yes it’s a bit tiresome when some of the criticism is deliberately misinformed and inaccurate – a publisher got on to me once about some of the critical comments on my role in a draft of a book but after I pointed out the errors, they did not appear in the published book. Other errors could have been avoided if I had been interviewed about my role. I have never shied away from that. I didn’t much like being criticised by the A-G of Maldives but in the end, what goes around comes around: he is out and I am in – for the moment. At the end of the day, it’s the outcome of the mission which is important not one’s personal feelings.
Eighth, reconciling fundamental principles with client requirements.
What should be the stance of a consultant where either during the course of a consultancy or at its outset, there appears likely to be a conflict between fundamental principles and what the client wants? Fundamental principles would include such issues as respect for human rights, the rule of law, gender equality. I have never had to confront a stark choice on these issues but there have been occasions when I have had to examine what I was doing very carefully and question whether I should be doing it or how I could ameliorate policies which were likely to infringe fundamental principles. A few examples may be given.
It was reasonably clear that nothing was going to come out of my work on land management reform in Afghanistan as warlords and other members of the ruling circles were not going to give up land forcibly seized from peasants and the urban poor. My consultancy was a wasted effort. I have since written critically on the Afghan government’s disinclination to tackle the gross inequities in land management.
In 2008, I participated in a World Bank IFC project to review administrative systems including land management systems in four states in Northern Sudan with a view to recommending how they could be made more efficient so as to encourage foreign investment in Sudan. I had misgivings on this project: the Sudanese government’s handing out of land occupied under customary tenure in Blue Nile and Southern Kordofan States to foreign investors from the Gulf States had been the principal cause of the inhabitants of those states joining in the civil war on the side of the SPLM. Furthermore, the government had taken no steps to comply with the provisions of the Interim National Constitution, themselves copied from the Comprehensive Peace Agreement, to review land allocations in those states and re-instate the recognition of customary tenure throughout Sudan. What would be gained by facilitating a repeat performance elsewhere in the North?
I decided to go and was pleasantly surprised. It was very evident that many officials in the state governments did not agree with the policies on land management of the national government. State governments were recognising the claims of persons occupying land under customary tenure and were, albeit with an ill grace, prepared to buy them out if their land was earmarked for development either by the state government or by a foreign investor. The North Kordofan State government had in fact begun an unofficial programme of the registration of customary tenure rights so as to increase the protection accorded to them. Our report drew attention to these positive developments which were much more compliant with the constitution than the national government’s actions and policies. An alternative and fairer model for land management has been given some publicity in Sudan.
In Uganda, after the saga of the ‘lost amendment’ to the Land Act 1998 when an amendment to improve women’s rights to land was never formally passed although generally agreed to in the last hectic hours of getting the Bill through the National Assembly by the deadline stipulated in the constitution, I worked with women’s groups and the relevant Minister to put together an amendment to the Act to reinstate the lost amendment. The President then announced that any such amendment would threaten the social and economic stability of Uganda – a very unlikely scenario. This did not stop women’s groups from continuing to argue for the amendment nor myself from continuing to help them.
I worked on a DFID project in Rwanda to improve land management. My role was to draft secondary legislation to provide for the implementation of the Organic Land Law. The Law made clear that its aim was to introduce a modern system of land tenure and to eliminate customary tenure altogether. Several NGOs had pointed out that the policies of the OLL would benefit the urban elite – largely Tutsi – and disadvantage the Hutu rural majority. I was not aware of this sub-theme behind the OLL before I went to Rwanda. When I became aware of it, I tried to draft secondary laws which would continue to give some recognition to customary tenure as I was aware from experience elsewhere that the ‘abolition’ of customary tenure is not likely to be achieved in the foreseeable future. But the OLL has the potential to lay the groundwork for severe inter-communal tensions over land in Rwanda in the future.
Faced with a stark choice between ‘good’ and ‘evil’ – for instance a request to draft a law which enables the government to seize land whenever it wants to without paying compensation, a law similar to the Unregistered Land Act 1970 of Sudan – I would try to argue against it. If the government was obdurate, I would walk away. But few such choices presented to a consultant are couched in such terms so there is usually room for negotiation and manoeuvre and that I think is the preferable way forward.I cannot claim that these are the only lessons to be learned. I have not attempted this kind of overview before so I am grateful for the opportunity to try out my ideas here. On further reflection, there will be I am sure further lessons. I have been working as a consultant for over 30 years and in over 35 countries so there are many experiences which I have not touched on. My last lesson however is this and it is perhaps the most important:
There is always more to be learned; never think you know it all. Wherever you work and whoever you work with, you can always learn from them as they will have had experiences you have not had and they will have an understanding of their own country and its problems that however much reading you do you will never be able to come close to. You may be a consultant but you are still and always a student.