When will land disputes be addressed?

08Aug 2018
The Guardian Reporter
The Guardian
  When will land disputes be addressed?

THIS commentary is devoted to monitor and report on issues that relate to production, processing, preservation and marketing of agricultural produce, aimed at ensuring food security in the Gambia, as well as the interventions of Government and Non-Governmental Organizations in this regard.

The idea of freehold land tenure was derived from the historical precedent of the British system.This system gave out freehold grants of lands for various reasons to individuals and companies.Freehold land tenure is when individuals own the land outright, and the government cannot interfere with how the land is allocated and used

Agriculture remains both a new and old source of national revenue and youth employment. Improved public awareness and discussions of the issues involved, will significantly maximize agricultural outcomes and the contribution of the sector to economic growth and job creation.

This is precisely the reason why Farmers' Eye is critically looking at every Agricultural programme or policy, to gauge whether our Agriculture and Natural resources are properly harnessed, to ensure food self-sufficiency.

In the last edition, we indicated that Section 192 of the Constitution states that "there shall be established a Lands Commission whose composition, functions and powers, shall be prescribed by an Act of the National Assembly". This Act has already been passed and assented to and the Commission established, but yet to be functional.

Farmers' Eye column, calls on the Executive to make the Commission functional, in order to address land disputes within the country, a major constraint in Agriculture and key to production. Land disputes are on the increase particularly at this time of the year, the farming season.

In this edition, we shall highlight the Legal recognition and allocation of Land tenure rights and duties.

 

This part addresses the governance on land tenure, fisheries and forests, with regard to the legal recognition of the land rights of indigenous peoples and communities, with customary tenure systems, as well as of the informal tenure rights, and the initial allocation of tenure rights to land, fisheries and forests owned or controlled by the public sector.

 

When States recognize or allocate tenure rights to land, fisheries and forests, they should establish, in accordance with national laws, safeguards to avoid infringing on or extinguishing tenure rights of others, including legitimate tenure rights that are not currently protected by law.

In particular, safeguards should protect women and the vulnerable who hold subsidiary tenure rights, such as gathering rights.

States should ensure that all actions regarding the legal recognition and allocation of tenure rights and duties are consistent with their existing obligations, under national and international law, and with due regard to voluntary commitments under applicable regional and international instruments.

Where States intend to recognize or allocate tenure rights, they should first identify all existing tenure rights and right holders, whether recorded or not. Indigenous peoples and other communities with customary tenure systems, smallholders and anyone else who could be affected should be included in the consultation process.

States should provide access to justice, if people believe their tenure rights are not recognized.

States should ensure that women and men enjoy the same rights in the newly recognized tenure rights, and that those rights are reflected in records. Where possible, legal recognition and allocation of tenure rights of individuals, families and communities should be done systematically, progressing area by area in accordance with national priorities, in order to provide the poor and vulnerable with full opportunities to acquire legal recognition of their tenure rights.

Legal support should be provided, particularly to the poor and vulnerable. Locally appropriate approaches should be used to increase transparency when records of tenure rights are initially created, including in the mapping of tenure rights.

States should ensure that people whose tenure rights are recognized or who are allocated new tenure rights have full knowledge of their rights and also their duties. Where necessary, States should provide support to such people so that they can enjoy their tenure rights and fulfil their duties.

Where it is not possible to provide legal recognition of tenure rights, States should prevent forced evictions that are inconsistent with their existing obligations under national and international law, and in accordance with the principles of these Guidelines.

Dispute resolution is the process of resolving disputes between parties. The term dispute resolution may also be used interchangeably with conflict resolution, where conflict styles can be used for different scenarios.

 

One could theoretically include violence or even war as part of this spectrum, but dispute resolution practitioners do not usually do so; violence rarely ends disputes effectively, and indeed, often only escalates them.

Dispute resolution processes fall into two major types:

 Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.

 Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.

Not all disputes, even those in which skilled intervention occurs, end in resolution. Such intractable disputes form a special area in dispute resolution studies.

Dispute resolution is an important requirement in international trade, including negotiation, mediation, arbitration and litigation.

Legal dispute resolution

The legal system provides resolutions for many different types of disputes. Some disputants will not reach agreement through a collaborative process. Some disputes need the coercive power of the state to enforce a resolution. Perhaps more importantly, many people want a professional advocate when they become involved in a dispute, particularly if the dispute involves perceived legal rights, legal wrongdoing, or threat of legal action against them.

The most common form of judicial dispute resolution is litigation. Litigation is initiated when one party files suit against another. In the United States, litigation is facilitated by the government within federal, state, and municipal courts. The proceedings are very formal and are governed by rules, such as rules of evidence and procedure, which are established by the legislature. Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the case and the application law. The verdict of the court is binding, not advisory; however, both parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for example, involving antagonistic parties or opposing interests seeking an outcome most favorable to their position.

Retired judges or private lawyers often become arbitrators or mediators; however, trained and qualified non-legal dispute resolution specialists form a growing body within the field of alternative dispute resolution (ADR). In the United States, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.

Extrajudicial dispute resolution

Some use the term dispute resolution to refer only to alternative dispute resolution (ADR), that is, extrajudicial processes such as arbitration, collaborative law, and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the public international law context) states. ADR generally depends on agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not offer the fairest way for parties not in an equal bargaining relationship, for example in a dispute between a consumer and a large corporation. In addition, in some circumstances, arbitration and other ADR processes may become as expensive as litigation or more so.

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