Mozambican land law: The basics

For those of you who are not familiar with Mozambican land law I figured one of the first posts here should be on the very basics of the law that set the scene for pretty much everything else.

All land belongs to the state, and it is not possible for land to be privately held in Mozambique. Instead one holds usage rights to the land, so called DUATs (direito de uso e aproveitamento dos terras- land use rights).  One can say that DUATs operate on a lease hold basis, usually for a period of 50 years renewable.  DUATs can be transferred between actors.

Depending on the size of the land requested, various levels of government will need to approve the application for a DUAT. All land requests above 10 000 ha must be made at the highest level by the Council of Ministers in Maputo. DUATs for land areas between 1000 and 10 000 ha is awarded by the Ministry of Agriculture, and those requests for land under 1000 ha need only to be approved on a provincial level. Getting large DUATs approved by the Council of Ministers can be a time consuming and laborious process, it is therefore common for companies to apply for several smaller DUATs to circumvent this.

A DUAT is first awarded on a provisional basis, upon which the investor must put the land into productive use within a set time-frame (2 years for international actors, 5 for domestic actors) after which the provisional DUAT will be transformed into a definitive DUAT. If an investor fails to put the land into productive use, the provisional DUAT may be revoked (cancelled).  This is to prevent land holding as a form of speculation.  DUATs are however revoked on in an irregular manner and it is not clear at all that this form of regulation is effective in limiting speculative land acquisitions in practice.

In addition to the system of obtaining formal DUATs from the government as a substitute for land ownership, Mozambique also grants customary land rights full legal status. In fact Mozambique has a sophisticated legal framework to protect customary land rights of local communities (at least on paper that is). Furthermore, if someone has occupied a piece of land in good faith for over 10 years they also hold a legal entitlement to use the land along the same lines as a holder of a formalized DUAT would.  These forms of land-use-rights are in essence permanent DUATs for which no formal piece of paper awarded by the government is needed.

Because customary land rights have the same legal status as the formalized DUATs one receives from the government there is technically no need for communities to go through the process of formalizing their land usage rights from a legal perspective. However, it is increasingly recognized that formalizing communities customary land rights is beneficial for various reasons; such as clarifying exactly what land belongs to which communities, holding a formalized DUAT may also increase small-holders awareness of their legal rights to their land and strengthen their sense of entitlement. Formalizing a DUAT is however a complicated affair, especially for small-holders as they often lack basic requirements such as id-cards and money to pay for nominal processing fees. Illiteracy is also a barrier limiting the ability for small-farmers to embark on the formalization process of their customary land rights.  Nonetheless according to the law, their legal entitlement to land usage should not be diminished due to a lack of a formalized DUAT.

Because customary land usage rights enjoy full legal status, communities must be consulted when investors (or other individuals) seek to acquire land traditionally held by communities.  The law states that a minimum of two consultations must be made with the relevant communities. Thus some of the principles in the “Voluntary Guidelines for Responsible Investment” set forward by the international community are actually not voluntary in Mozambique, but required by law. Failure to consult and obtain the consent of communities should technically result in the DUAT awarded to an investor being null and void as it was obtained on an illegal basis (however enforcement of the law is unfortunately often a different matter altogether).

Lastly, as all land is ultimately state owned, the government may in accordance with article 18 of the land law revoke DUATs (both of formalized and customary/good faith types) in the event of public interest. The definition of what constitutes public interest is however not developed under the law, giving the state ample of control over the land.

This is a very short and over-simplified version of the Mozambican land law, but hopefully it facilitates for understanding certain terms that are often used when talking about land issues in Mozambique.

 

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