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Three Faces of Shafa. Land Ownership on Trial in Ningarhar

Les trois visages de Shafa : Comment redéfinir les droits de propriété à Ningarhar
Wamiqullah Mumtaz
p. 169-185

Résumés

L’étude de Qasimabad, un district urbain, de Shahidano Meena, un district semi-urbain, et Achin à Shinwari, un district rural, dans la province de Ningarhar, permet d’analyser le rôle du shafa (droit coutumier et islamique du voisinage) dans l’accaparement foncier (land-grabbing) et, par extension, dans le développement tant urbain que rural. L’échec des différentes autorités et institutions en charge des questions foncières dans la région de Jalalabad, dans un contexte d’urbanisation rapide, ont conduit les populations concernées à régler leurs différends sur la base d’arrangements informels, par le recours au droit de shafa, et en recourant au ‘land-grabbing’. L’article dégage les usages contradictoires du shafa pratiqués par les différents acteurs du processus d’urbanisation et par les politiques publiques de la ville.

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Texte intégral

  • 1 For further readings on the issue of urban governance and land legislation see the following report (...)

1In 2011, the Badloon Civil Society and Consultancy Services (2BCS) initiated research into urban governance.1 The research proper was conducted in Jalalabad (Ningarhar). Its aim was to examine current urban development and urban governance issues in the city of Jalalabad. Starting with the broad theme of urban governance, the research team undertook field work in Charikar, which led them to adopt a narrower focus on the formal and informal mechanisms that regulate land use, city planning and urban economic development. Planning for such urban economic developments often bring out democratic deficits in the concrete management of cities (Giovacchini, 2011).

2Based on the information gathered, an initial list of the most significant informal settlements and land illegally appropriated or ‘grabbed’ was prepared. This list included Baz-i-Ekmalati (opposite Qul-i-Urdu, army headquarters, Nahia 5), Kampona/Kampha (close to Pul-i-Behsud, Nahia 1), Sherzai Khargoti (Sherzai town, on the way to Torkham, 15 km away from Jalalabad city), Afghan Meena, Toop Ghundi (centre of Jalalabad city), Omaid Abad (close to Pul-i-Behsud, Nahia 1) and Qasimabad (Behsud district, 5 km away from Jalalabad city). Three sites – Shahidano Meena (Rodat District), Shinwaro (Achin District) and Qasimabad (Behsud District) – were chosen as case studies. Information on these three sites was gathered throughout the three-month research period in Jalalabad.

3The aim in selecting Shahidano Meena, Shinwaro and Qasimabad was to explore the role of shafa in land-grabbing, and its effects on urban and rural development. As discussed in further detail below, shafa is an Arabic word meaning lip or edge. According to the Hanafi fiqh of sharia law, shafa is the right of the owner of a piece of land to be the first to be offered the opportunity to buy an adjacent piece of land (Fataw-ul-Hindia, 1940) Qasimabad was selected for its importance and urban context, while Shahidano Mena was selected for its semi-urban context and Shinwaro for its typical rural context. Each site came with its own story, but the most common feature of all three was land-grabbing based on shafa.

Shafa

4Shafa in Arabic means “lip” or “edge”, but it can also refer to one area of land located in proximity to others. Thus, if a piece of land is surrounded by two or three others adjacent to it, those adjacent pieces of land are all classified as shafa in relation to the first. As noted above, the term shafa also signifies the right of the owner of a piece of land to be the first to be offered the opportunity to buy an adjacent piece of land under the Hanafi fiqh of sharia law. According to customary law, which is also based on sharia concepts and principles, a person who wants to sell his or her land must thus first offer it to his or her neighbour. If the neighbour does not wish to buy the land in question, then and only then can the landowner sell it to another.

5If a piece of land for sale is completely surrounded by land belonging to more than one landowner, the potential vendor must first ask whether any of the shafa landowners are his or her close relatives. More distant relatives are asked next, and, ultimately, if none are prepared to buy, the vendor is free to sell to anyone. If shafa principles are not observed, the shafdars (land neighbours) can file a case against the person in court or pursue the matter through jirga (a traditional Pashtun method of resolving conflicts, where speengiri (greybeards) and maliks (community elders) discuss the issue and come to a conclusion).

6In this research project’s three case studies, almost all land-grabbing was purportedly based on shafa (as, indeed, it was in the three examples discussed below), although the land-grabbers had no legal documents to prove their ownership of the relevant land. This illustrates how the sharia law concept of shafa is misused. If a person wants to claim a piece of land based on shafa, he or she should prove his or her status as a shafdar (legal neighbour of the claimed land) and should possess all relevant legal documents such as a qawala (a land ownership document registered with the government land registration department, AMLAK) or an urfi khat (a written piece of paper to show his or her ownership; this type of land ownership document is not registered with the Government but is acceptable to both government officials and citizens because it has the signatures of the vendor, the vendee and witnesses). An individual’s claim to be a shafdar must be supported by documentary proof of their legal ownership of the shafa land. However, in all of the major land-grabbing cases in Ningarhar – including on the three sites selected for this research study – there were no legal documents to prove ownership and the individuals involved were consequently misusing the shafa concept and principle under sharia law. This also illustrates the fact that shafa is not only a sharia concept; irrespective of sharia, shafa plays a critical role in the customary law (Pashtunwali) of the Pashtuns. This customary concept of shafa is an accepted pattern among the population, members of which occasionally take advantage of it by seizing land.

Ningarhar: the historical context

7Jalalabad is more than 2 500 years old; some historians estimate that it is much older. Afghanistan’s early urbanization made it one the oldest civilizations in the world. Historically, the urbanization of Afghanistan included the cities of Ghazni, Hirat, Balkh, Kandahar and Jalalabad. Despite this historical background of urbanization, today only 30 % of people live in urban areas, while 70 % still live in rural areas (UN-HABITAT, 2010). These statistics underscore the fact that Afghanistan’s urban civilization and urban governance have not developed in tandem with the country’s historical evolution.

8Many factors contributed to Jalalabad’s historical status as one of Afghanistan’s major cities. Its strategic geographical position, its location on a path of transit for invaders and the fact that it acted as a gateway to the Indian sub-continent all played a significant role in Jalalabad’s urban evolution. However, in spite of these factors, the city’s development would later stagnate. Since World War II, many of the world’s urban centres have undergone modernization and massive development; in contrast, cities in Afghanistan such as Jalalabad have seen only a minimum level of urbanization. When Sadar Mohammad Daoud Khan initiated modernization in urban development and introduced a master plan for the major cities of Afghanistan (including Jalalabad) in the 1970s, Jalalabad faced similar problems to those being experienced by other cities in Afghanistan at the time.

9In the original master plan for Jalalabad (DoUD, 2010), the city was designed to hold 40 000 dwellers and its masahta (area/space) ratio was estimated to be 4 square km. There was only one nahia (precinct) established by the Jalalabad Municipality in 1958 (Afghan year 1337). Today, its population is more than 1 million and its masahta ratio is more than 27 square km. The number of nahias has now increased from 1 to 6.

10Until late 1978, all urban development in Jalalabad city was carried out according to the master plan, but, unfortunately, due to regime changes and three decades of war, Jalalabad’s master plan has not been executed as planned. During the last three decades, violence, civil war, interpersonal clashes and the actions of informal power holders have combined to derail the master plan, which has negatively affected the legal urban development of Jalalabad.

11It is estimated that, from 2000 to 2015, the population of Afghanistan will grow to 14 million people, of which almost 7 million will be city dwellers (UN-HABITAT, 2010). This suggests there will be a rapid increase in the proportion of city dwellers, from 25 % to 50 % of the country’s population. Based on this estimate, Jalalabad’s urban dwellers will have increased in number from 40 000 to 1 million, continuing their rapid growth up to 2015. Dealing with this urban population explosion is therefore a key policy issue for local government and all other stakeholders associated with urban development.

12The contemporary rapid increase in Afghanistan’s urban populations correlates to that being experienced by some cities in developed countries. However, in stark contrast to Afghanistan, the latter have largely successfully managed their urban planning and development. The destruction of Afghanistan’s infrastructure, coupled with a lack of proper urban planning and development, has exacerbated the plight of the country’s city dwellers.

13Jalalabad’s local government authorities and other stakeholders involved in urban development have encountered the same problems as their counterparts in other cities experiencing such population explosion. Local authorities involved in urban governance such as the Jalalabad Municipality, the Directorate of Urban Development (DoUD) and other local government departments and bodies, such as the Ningarhar Municipality, the Governor’s Office, the AMLAK Department and the Directorate of Agriculture and Provincial Land Management Committee, have failed to adequately manage the situation. As a result, people have found other alternatives, such as informal settlements and land-grabbing or zoor aabad. While not all settlement in Ningarhar is founded on land-grabbing, there is substantial evidence of informal settlement. Settlement on private land without permission from the Municipality and the DoUD is known as informal settlement because, according to municipal law, if an individual wants to build a house or township on his or her private land, he or she is required to notify the Municipality. After approval on the basis of maps or plans, official permission may be given by the authorities. However, the process followed in the majority of cases is very different in practice – due to complex procedures, corruption and the weak role of local government, little attention is actually paid to the proper procedures, the relevant policies or the laws governing the construction of residential dwellings. Moreover, some people use land-grabbing in an attempt to solve their housing problems. Indeed, by reason of the lack of any proper land distribution mechanism many people have preferred to grab land and rely on informal settlement.

14Due to the absence of proper urban governance mechanisms, the inability of the authorities to implement a city master plan and the failure of local governments to manage rapid urbanization, those responsible for creating policy and providing funds need to pose and address a number questions. For instance, what is the role of shafa in land-grabbing and how has this concept of shafa under sharia law been misused? To what extent have laws, by-laws and decrees been implemented or been useful in land management? What strategies or plans can be implemented by local authorities to tackle land-grabbing and informal settlements based on shafa? How can the economic development of the Jalalabad Municipality as well as the elections of the Jalalabad Mayor and Town Council help to stem the tide of land-grabbing and contribute to better urban governance?

Three cases of land-grabbing

Places of research in the districts of Ningarhar Province

Shahidano Meena (Rodat District, Hisar-i-Shahi)

15Rodat District is located 25 km east of Jalalabad city. The main tribe living in this District is the Momand. Hisari Shahi is one of the biggest villages, located in the centre of Rodat District. Five sub-tribes of the Momand (Nata Khil, Shadi Khil, Hasan Khil, Ali Mohammad Khil and Qasi Khil) live in this village.

  • 2 In Pashtun communities there are different layers of representation. For example, a malik (communit (...)

16A desert known as Hisari Shahi Dagg (desert/flat land without water) is located between Jalalabad, and Torkham and Hisari Shahi village, on the main road between them. This desert is situated 15 km from the centre of Jalalabad city. It covers more than 2 000 jirib (400 hectares) of land. In 2006–2007, the Provincial Government decided to build a police academy in the desert, and implemented this plan soon afterwards. In 2008, the Provincial Governor decided to create a township for the police and other government authorities, to be named Shirzai Khargoti (Shirzai Township), and the same desert was selected for its location. When the police academy was built in the area, the people of Hisari Shahi voiced concerns but did not engage in any practical measures of resistance in opposition to the construction of the academy by reason of the fact that the academy complex was relatively small. Several months later, when the Governor of Ningarhar announced his plan to build the township for the police in the desert, people became more concerned. A group of maliks and speengiri2 from the five tribes – around fifteen to twenty people in total – went to meet the Governor and voiced their concerns about the distribution of land to the police. The Governor promised the delegation that they would have their share of the land distributed in the new township.

17Over the next three to four months, this group of tribal representatives met the Governor several times, and each time they were given the same reassurances: they would have their share – 50 % of the plots – as soon as the distribution began.

18The Governor ordered that plots be distributed to the police and various other individuals, and over 1 300 people submitted money for the purchase of plots (ranging from AFN 25 000 to AFN 30 000, or USD 500 to USD 600) to the Jalalabad Municipality. Although the initial plan was to distribute the land among the police, the people of Hisari Shahi noted that other people connected to the Governor were also receiving plots in Shirzai Township. The leaders of the five tribes decided to meet the Governor. At this meeting, they voiced their concerns about the way he was distributing land to other people. The Governor promised that he would allocate 50 % of the plots to the tribes, while the other 50 % would be allocated to the police and to people connected to him. After some months, engineers from the Municipality came and began to distribute the land without allocating any plots to the tribes. The tribal elders again went to see the Governor in order to remind him of his promise, but the Governor refused to see them.

  • 3 Jalalabad is located very close to Pakistan, being 75 km away from the border, and PKS (Pakistani r (...)

19As a result, the tribal leaders organized a big gathering of speengiri to discuss the issue. It was decided that action would be taken against the Governor, and that each tribe would provide PKR 2 000 (AFN 1 200)3 per family and 200 men to seize the land by force. Subsequent to this meeting, in 2008, more than 1 000 people demonstrated against the Governor, blocking the main road between Torkham and Jalalabad, and an attempt was made to set the police academy alight. In response, the police opened fire on the crowd and two people were killed. People from the tribes erected tents in the desert and started living there. They quickly embarked on the construction of houses in order to grab land in accordance with shafa as soon as possible. Tribal elders (qawmi mishran) changed the name of the township from Shirzai Khargoti to Shahidano Meena (Martyred Township).

20Following this land-grabbing, the tribal leaders established a thirty-three-person commission, including maliks, speengiri and tribal elders from all five tribes of Hisari Shahi, to manage land distribution among these tribes. The Commission was also made responsible for negotiations with the Government and all other agencies. The Commission’s first move was to ban the sale of plots to anyone from outside the five tribes of Hisari Shahi.

21In order to convince the tribes to leave the desert and go back to their villages, different delegations were sent from Kabul and Jalalabad to negotiate with tribal leaders, but no progress was made because of the tribal leaders’ stringent demands. They claimed that the Governor had cheated them, that he was not respectful during meetings and that he had tried to ignore them; as a consequence, tribal pride gave them no alternative other than pursue their current course of action.

22Historically, as today, tribal pride is a major issue in the Afghan context. If a tribe fails to defend its rights or protect its property or status, this is viewed as a stigma for the whole tribe. Even relatively minor issues, such as the ownership of small pieces of land or water distribution, can result in fighting between different tribes that lasts years and causes the deaths of scores of individuals. One example is the land conflict in 1990 between the Shinwar and Momand tribes of the Rodat district, which led to many people being killed and injured. For more than a year, the relationship between the two tribes was extremely tense, and the road to Shinwar was blocked by the Momand. The fighting itself lasted for over a month, with small and heavy weapons (including tanks) being used. Nevertheless, neither side gained possession of the land in question.

23In the Hisari Shahi Dagg conflict, the Commission representing the five tribes also encouraged people to build their houses on the grabbed land, or at least to lay out boundaries to their plots, because once the houses had been built it would be difficult for the Government to destroy them. This is a common perception, and to some extent a correct one – there are many examples in Ningarhar and Qasimabad of the Government being reluctant to tear down houses, regardless of the legality of their construction. While the Provincial Government tried to stop the delivery of building supplies from Jalalabad city in order to halt such rapid construction, these efforts failed and the desert was very swiftly converted into a residential area.

  • 4 It is important to recall that selling plots to anyone outside the five tribes was forbidden, as a (...)

24Initially, the price of one plot of land in Shahidano Meena was between PKR 80 000 (AFN 44 444) and PKR 150 000 (AFN 83 333), but within a few months the price had reached between PKR 500 000 (AFN 277 777) and PKR 1 000 000 (AFN 555 555), due to the lack of proper government intervention. In the first instance, those interested in buying land were somewhat reluctant, being afraid of government action. However, when they realized that the Government was doing nothing, they started to invest in the township and land prices rose. To ensure that each family received a plot, the Commission distributed the land to the five tribes, and each tribe was then made responsible for dividing the land and its ultimate distribution within the tribe. The plots were allotted to individual extended families, including brothers and cousins. Some shareholders received cash for their share and transferred their plots to their brothers or cousins. Several individuals who could not afford to offer money to family shareholders decided to sell the plots to any member of the five tribes and the money was then distributed the among the family shareholders.4

25Four factors encouraged the tribes to grab this land: 1) the Governor had ‘cheated’ and had failed to fulfill the promise he had made to the tribal leaders at their first meeting; 2) plots had been allotted to people who were not in the police, as well as to others connected to the Governor; 3) tribal pride and honour are closely related to land issues, particularly when other people are in possession of land in your neighbourhood; and 4) shafa principles. It was frequently said during this conflict that ‘a Kandahari is giving our shafa to other people and it is better to be killed than to let this happen’ (da mong ta marg di). People also commented that it was shameful for a person from another province to be distributing land located in their shafa. If they did not take any action, this would represent a permanent stigma for their tribe. Such comments show how strong tribal custom and practices remain in these communities. Although these tribes had no legal documents to prove their ownership of the relevant land, they considered that the shafa concept implied that they owned it.

26Throughout this whole period of tension, several greybeards and elders tried to resolve the conflict by urging people not to take part in the land-grab. However, these attempts were to no avail, given that it was common knowledge the greybeards and elders concerned were connected to the Governor, and they did not enjoy a high reputation within their communities. These greybeards and elders were from the same five tribes, but they had good relations with the Governor. Indeed, some were still working in government at the local, district level or at the provincial level, and they clearly hoped to obtain favours from the Governor for their attempts to resolve this dispute to his advantage. They constituted a very small group of people from different backgrounds, although the majority were mujahideen (that is, they had fought against Russia in the ‘holy war’ during the Communist era). Thus, all formal and informal efforts to free the land from the possession of the five tribes failed, and it is still under their control. The provincial authorities naturally reject tribal ownership of this land, and the conflict remains unsolved.

Achin District (Shinwari)

27Achin is one of the 22 districts of Ningarhar, located east of Jalalabad city. An area of desert in the northern part of Achin is the main source of conflict between two Shinwar sub-tribes, known as Sepai and Alisherkhil. This desert occupies approximately 7 000 to 8 000 jerib (13 to 15 km/1 400 to 1 600 hectares), situated between these two sub-tribes.

28Until 2010, this desert was empty land, with no tribal settlements. In early 2010, the first attempt to settle in the desert was made by the Sepai, who erected tents in the area. This provoked a serious reaction from the Alisherkhil tribe. The Sepai had the advantage in terms of weapons. They also had the support of the arbaki (local militia/police), while the Alisherkhil had the support of some local Taliban groups.

29These two tribes live in the same district and have the same tribal background (Shinwar), but beyond these similarities differences between the two groups exist by reason of the fact that the Sepai live in the mountains and their far-flung villages border on Pakistani tribal areas. After the fall of the Taliban in 2005, several insurgents attempted to spread their activities throughout the Achin district. However, due to the good relations between the Sepai tribe, on the one hand, and the Ningarhar Governor and the Provincial Government, on the other, the Sepai did not support the Taliban. Indeed, the Sepai helped the provincial authorities by providing arbaki to tackle the Taliban in several areas of the Achin district. From that time on, Sepai leaders built up good relations not only with government officials but also with the North Atlantic Treaty Organization (NATO)/the International Security Assistance Force (ISAF) and US troops. The Alisherkhil did not have the same advantage of a strategic geographical location, and were totally ignored by the Provincial Government and NATO/ISAF. During the tribal conflict over this tract of desert, the enemies of NATO/ISAF ultimately became allies of the Alisherkhil – as the saying goes, ‘my enemy’s enemy is my friend’ (da doshman doshman dost di). The Alisherkhil thus had the support of the Taliban, given the latter’s displeasure with Sepai support for the US and the Provincial Government. The two sub-tribes consequently have different allies.

30Not only were US troops, the Provincial Governor, the arbaki and the Taliban involved in this dispute, but several other political actors supported one of the sub-tribes, including the Hizb-i-Islami Khalis group and the previous Governor of the Ningarhar family.

31It is important to emphasize that, during the course of the conflict, some relationships changed. For instance, the good relations between the Sepai and the Governor and NATO/ISAF were affected when, during peace negotiations, some Sepai attacked the police and the tent where the Governor was sitting discussing the matter with the security forces. As a result, the Governor ordered the security forces to attack the Sepai (the Alisherkhil had promised not to attack anyone while negotiations were taking place). Some locals even claimed that NATO/ISAF took part in the attack and killed more than 40 people from the Sepai tribe.

32In order to resolve the dispute between the two sub-tribes, various efforts were made by different groups to reduce the tension between the tribes. These efforts included the following:

331) The first attempt came from Kabul: one of Karzai’s advisors visited the region, met with both groups and arranged a jirga (the traditional Pashtun mode of dispute resolution). He suggested dividing the land equally between the two sub-tribes, but this suggestion was not implemented and the Kabul delegation failed to resolve the conflict.

342) Subsequently, a second jirga was set up by parliamentarians of the Momand and Khogiani tribes. They first decided on tiga (literally ‘stone’ in Pashto; an agreement not to attack each other until a jirga decision is reached), and were given machalgha (money provided as a guarantee that the jirga decision would be accepted; if anyone rejects the jirga decision, the money is not returned). This jirga decided that the land in dispute would go to the Sepai tribe and the Alisherkhil would have another piece of land near the Torkham area. However, this decision was rejected by the Alisherkhil tribe and, as a consequence, they lost the money they had provided as a guarantee, following the Pashtunwali code of conduct.

353) Another of Karzai’s advisors visited Achin and issued a farman (presidential decree) stating that the land was state-owned and that neither of the tribes had the right to settle it.

36Despite these outside efforts to resolve the dispute, the period of conflict lasted from 2010 to 2012. On one occasion in 2012, violence escalated significantly and both sides attacked each other as well as the army, the police, and NATO/ISAF forces. The resulting intervention by security forces led to the deaths of over 40 people (some say 50 or more) within 24 hours, with many others injured and some deciding to migrate elsewhere.

37The example provided by this land dispute between the two sub-tribes of Shinwar in Achin illustrates many different aspects of such conflicts. There was a struggle for political power, and opium played a part (Shinwar is one of the most notorious sites of heroin production). Tribal pride also fuelled the flames of the insurgency because, in order to save their tribal pride, the Alisherkhil took advantage of the Taliban’s support, thereby increasing Taliban insurgency in the area.

38As in Shahidano Meena (Hisari Shahi), the most critical issue during the land-grab in this desert was shafa, the significance of which is highlighted by the fact that, while there are more than five Shinwar tribes and sub-tribes living in Ningarhar, none considered themselves to be capable of laying claim to any share of this desert since none besides the two sub-tribes of Alisherkhi and Sepai resided in adjacent areas.

39It is also significant that the actions of the state in attempting to resolve the conflict were confused and contradictory. The first commission sent by Karzai suggested that both tribes should divide the land equally, while the second delegation came with a decree ruling that this was state-owned land and that no one had the right to settle it. This double standard in conflict resolution when land is at stake illustrates the lack of a clear government policy, as well as the failure of the authorities to implement existing laws, by-laws and decrees relating to land management.

40For the time being, the dispute between the two tribes remains unresolved, and the conflict still has the potential to become even more severe.

41In this example of land-grabbing, insurgents were also involved and the nature of various alliances has changed. From the beginning of 2002, a potential threat of conflict arising between tribes existed, but no tribe made any serious attempt to grab land. During and subsequent to 2005, the Sepai were considered by the Provincial Government and NATO/ISAF to be key allies in tackling the Taliban based in the area. The balance of power between the two tribes was disrupted when the security forces provided the Sepai with money and weapons to form arbaki. This increased the power of the Sepai so much that they felt invincible – indeed, at one point they even attacked the security forces themselves. This kind of mistake has been made on many occasions by the Provincial Government and NATO/ISAF in various other contexts. The Sepai became so powerful that unless NATO/ISAF intervened the national security forces in Ningarhar would not have been in a position to handle the situation.

42Another key issue was interference on the part of the Taliban. Realizing that the situation had become too tense and that the Provincial Government had failed to resolve the problem, the Taliban intervened in support of the Alisherkhil in order to make their presence felt and establish roots in the area.

43Leaving to one side all of these issues, another major issue is the ‘dirty politics’ employed by many of the different groups involved, such as the different Jahadi groups (for example, the Khalis), the Taliban, other tribes, the district authorities, the provincial authorities, the central authorities, NATO/ISAF and various commissions. While all of these groups claim to be neutral in their approach to the issues, they are not. Instead of improving the situation, their actions actually heightened tensions and made war more likely.

44Last but not least, throughout the whole conflict, no one (neither the central nor the provincial authorities) tried to resolve the issue on the basis of existing laws, by-laws, decrees, policies or through the proposed Land Management Commission (in line with the 2008 Land Management Law). This is a clear indication of the failure of laws and policies and/or their lack of implementation. In our view, none of the parties involved (including both tribes and mediators) were actually interested in resolving the dispute or in relying on and implementing existing laws and government policies.

45A common local perception is that this issue is being kept quiet for the time being, but that even more serious trouble is in store in the near future.

Qasimabad (Behsud District)

46Qasimabad was chosen as the third case study, and the findings from this research shed light on many issues relating to informal settlements in urban contexts. There are more than 4 000 plots of land in Qasimabad, which is roughly 800 jirib, or 1.5 square km (160 hectares). Since the fall of the Taliban, this once-empty area has changed significantly, with a high level of informal settlement and development. A plot in Qasimabad would initially have cost between USD 80 and USD 160, but would now be sold for more than USD 2 000.

47Qasimabad is located in Behsud District, five km north of Jalalabad city. This area was first selected as the site for a potential satellite township as part of a master plan developed during the 1970s, while Daoud Khan was Prime Minister. The site was marked as a space reserved for future urbanization. If population pressure in Jalalabad city became too great, this township was to have been developed to increase the city’s residential capacity and thus to help its residents avoid the problems associated with high population densities. 

48Unfortunately, due to three decades of war, the plan to urbanize and expand Jalalabad city envisioned in the 1970s was never implemented. However, after the collapse of the Taliban regime, a large number of refugees returned from Pakistan and Iran. As a result of the investments and donor funds that became available following the NATO/ISAF intervention, many employment opportunities were available to these individuals on their return. This period also saw a sharp increase in the price of land, which in turn produced the swift occupation of land in the vicinity of Jalalabad by those who had the support of influential local Commanders, including by locals and migrants from the nearby district of Dari Noor, mostly from the Pashae ethnic group (one of the minorities in Ningarhar Province). 

49This was a common phenomenon throughout Afghanistan at this time. In response, a decree was sent in June 2002 by the transitional administration to all Provinces, declaring:

  • 5 Article 1, Decree N° 99, 04/02/1381 (Official Gazette N° 802, dated 28/3/1381)

50The distribution of vacant and non-cultivated lands, which are government property, to people as plots for residential construction and other purposes is strictly prohibited5.

51The resulting initial fear of government action meant that this type of informal land acquisition took place at a relatively slow pace, but people soon realized that the Government’s attention was not focused on this issue, and settlement activity became more rapid. People from other districts and provinces, as well as from the local area, started constructing houses without legal permission but with the support of local Commanders and tribal leaders. The Ministry of Justice gazetted another law on land affairs in 2008 in an attempt to control the situation, but it had little effect in Qasimabad. 

  • 6 Haji Qadir was Governor of Ningarhar during the last year of the mujahideen, up until the Taliban c (...)

52Meanwhile, the local Government made a plan for the distribution of land to disabled people, teachers, ulema (religious scholars) and other government employees, without considering the issue of land-grabbing and informal construction. The local Government also changed the town’s name from Qasimabad to Haji Qadir Town.6 Those civil servants, teachers and returnees from Pakistan who paid for the distributed plots received legal documents from Jalalabad Municipality conferring title to the land. In 2010, the Municipality received AFN 33 million from these transactions in Qasimabad, and it was likely to make another 30 million (approximately USD 650 000) in 2011.  

53An acute problem soon arose with many plots having two claimants – one informal settler and another settler who possessed the necessary legal documents. While the local Government has proven itself to be very interested in selling land and generating revenue, the issues associated with legal ownership and informal occupation of the land in question have remained unresolved. Today, the residents of Qasimabad city can be categorized as belonging to four main groups: 1) a group from Kunar Province who bought the land from a local Commander; 2) a group allied with a local Ningarhari Commander; 3) settlers from Behsud District (within which Qasimabad is located) and nearby Daman Village; and 4) a limited number of legal owners.

54People have demonstrated and met with officials, from the Governor down, to try to resolve these problems, but to no avail. The Governor promised some petitioners that alternative plots would be provided for them, but these pledges have not been kept. Some of the legal owners commenced negotiations with the informal settlers on their own initiative, and managed to take control of their land by giving the settlers money. However, only a few individuals have pursued this method successfully. Meanwhile, conflict between the residents of Qasimabad for the control of more space has led to the deaths of several people, and to numerous injuries.

  • 7 See http://www.pajhwok.com/en/photo/152356 for details on one example of the Qasimabad demonstratio (...)

55It would be very difficult for the local Government to evict the settlers and give the plots to their legal owners. Demonstrations are now ‘fashionable’ in Afghanistan,7 and the Government must also contend with international human rights groups and local power holders. After the fall of the Taliban, the media in Afghanistan grew very rapidly and various new human rights institutions were established in order to foster public awareness of human rights issues. This increase in media presence has led to a demand for more news, and one of the key news items in Afghanistan is live coverage of demonstrations. Some of the demonstrations during Karzai’s Presidency were very violent, with many deaths and injuries. The people closely followed news of these demonstrations in the media. As a result, there has been an increase in the number of demonstrations, which, despite the risks involved for participants, are now seen as an easy way for people to convey their message to the authorities and attract media coverage. The few people who do get the opportunity to meet officials in person still have to wait months or even years for their message to have any impact. In contrast, when faced by demonstrations, the authorities take quick action due to their fear of further demonstrations, media exposure and pressure from the central Government. Demonstrations can consequently provide a better means of resolving grievances than negotiation. Given this broader context, the use of force by the Government to take control of Qasimabab would seem virtually impossible. The best course of action would be for the Government to negotiate with the people already residing in Qasimabad and officially allocate their plots to them for a fixed price. At the same time, the Government would need to find acceptable alternative sites for those people who have already paid for a plot of land. Given that more than 80 % of Qasimabab’s residents are informal settlers, or ‘land-grabbers’, this township might be more aptly known as Zoorabad – ‘Grab-Town’.

Land-grabbing and political control

56During the civil war (in the 1990s), Jalalabad City and its surrounding areas were controlled by different mujahideen groups. These political groups continued their efforts to secure control even after the fall of the Taliban regime, encouraging their members and allies to occupy as much land as possible. Different groups then started to establish informal settlements in the ‘grabbed’ land in order to secure their political influence around the mother city (Jalalabad).

57There are many examples of Commanders or political parties having control of areas around Jalalabad city, such as the Khalis Family in Khalis Town (now Nahia 6), which was occupied by one of the mujahideen political parties that distributed land to its members and allies in the 1990s. Another good example of such political control is Qasimabad, where three local Commanders formed an alliance with two opposing political groups – both groups encouraged their people to take control of the town in order to ensure their political control and influence in and around Jalalabad city.

58Not only were political parties and Commanders involved in this power game, but local government authorities and Governors were also drawn in, taking advantage of informal settlements and land-grabbing for their own political purposes. A good example is provided by Shahidano Meena/Sherzai Khargoti (Sherzai Town). The police and other individuals who paid the Municipality and who have legal documentation proving ownership of the relevant plots are still waiting to take possession of their land. Although the Governor and local authorities have given assurances that they would allocate plots in another township to these legal owners, no such allocations have taken place to date. There are many similar examples of political groups grabbing land in aid of their own political power, and thereby causing serious damage to urban development and governance.

59After the fall of the Taliban regime, land prices increased dramatically in Jalalabad. As a result, people involved in land-grabbing became more active. Poor people and people returning from other countries who were not in a position to pay high rents showed their interest in these ‘grabbed’ sites and informal settlements. This in turn encouraged more land-grabbing, which became highly profitable for those involved. Local Government and the new Karzai regime were neither strong enough nor well-organized enough to stop them. All of these factors contributed to an increase in land-grabbing, through which small-scale Commanders and power holders seized land for profit. Some individuals invested money in the ‘grabbed’ sites because they knew that land prices would rise in the future – they bought many plots and, as soon as prices increased, sold their plots to others.

60Five significant economic groups are involved in this land-grabbing ‘business’: 1) small-scale Commanders, with the support of their parties (or of more important Commanders) – these small-scale Commanders are solely interested in economic returns; 2) provincial authorities, who receive their share of the profits from kamishan kars (agents); 3) kamishan kars, who work as middlemen or agents between the people and the state; 4) real estate agencies, which deal in informal settlements (to some extent the agencies are seen as legal agents); and 5) businessmen, who have bought a huge amount of land in ‘grabbed’ areas and subsequently sold that land once prices increased. These five groups are involved in almost all informal or ‘grabbed’ land transactions. They now comprise a ‘land mafia’, which has had a severe, negative impact on urban development and urban governance.

61The new Constitution enacted in 2004 established a legal framework for property ownership which safeguards the rights of individuals to own property. A 2007 Land Policy addressed bottlenecks in the administration of land rights and the overlapping authority of institutions. It was followed in 2008 by the Law on Managing Land Affairs, which lays out the principles of land classification and documentation, governs the settlement of land rights and encourages commercial investment in state-owned agricultural land with opportunities for long-term leases. However, the Ministry of Justice estimates that 90 % of Afghans continue to rely on customary law and local dispute-resolution mechanisms. More than 30 years of conflict have decimated the centuries-old resolution mechanisms for resolving land disputes (USAID Country Profile, 2005). Research has been undertaken in relation to three sites of land-grabbing as case studies (discussed in this article), as well as in relation to the effectiveness of laws and decrees regarding land management. In 2002, President Karzai issued a decree to stop land-grabbing, which provides that:

  • 8 Article 1, Decree N°99,04/02/1381 (Official Gazette N°802, dated 28/3/1381).

62In the distribution of public vacant and non-cultivated lands, all ministries and government organizations are strictly directed that: […] The distribution of government-owned vacant and non-cultivated lands is strictly prohibited.8

  • 9 Chapter 1, Article 9, Paragraph 2, Afghanistan Constitution, 2004.
  • 10 Law on Managing Land Affairs, 31July 2008, N° 958, Ministry of Justice, Afghanistan.

63According to Afghanistan’s Constitution: ‘The protection, management and mode of the proper utilization of public lands shall be regulated by law’.9 Exercising the power conferred by this Article, the Government of Afghanistan passed a Law on Managing Land Affairs in 2008.10 Unfortunately, such national laws and decrees have failed to have any significant impact on land-grabbing, especially in the case of Jalalabad City. Thus, policy documents, laws and by-laws have been viewed as useless with respect to the land-grabbing issue in Jalalabad City.

64Some land in Qasimabad was informally acquired by local residents in the neighborhood of this township. When local people from the Beshud District noticed that Commanders, power holders and other people were involved in land-grabbing, they also captured a significant amount of land based on shafa claims. Qasimabad is not the only example of shafa land-grabbing – land in Shahidano Meena/Sherzai Township and Achine was also seized by local tribes on the basis of shafa, and a recent shafa-related conflict over public land claimed by two tribes in the Achin/Shinwar area of Ningarhar Province is still unresolved.

65It is also important to emphasize that, as demonstrated above, land in Afghanistan is ‘grabbed’ not just for shafa-related reasons, but also for political control and economic benefits. However, once land-grabbing starts, neighbouring villages/districts also take part, using shafa as a pretext.

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Bibliographie

Directorate of Urban Development (DoUD), 2010, Pilan-i-Tafsili (Detailed Plan), Jalalabad Ningarhar.

Fataw-ul-Hindia, 1940, Vol.5, Dewbandi Madrassa, India.

Gebremedhin Y., 2005, Legal Issues in Afghanistan Land Titling and Registration, Kabul

Giovacchini T., 2011, Governance and Representation in the Afghan Urban Transition, Kabul, Areu.

Independent Directorate of Local Government (IDLG), 2010, Executive Summary; Sub-national Governance Policy, Kabul

Lister S., 2005, Caught in Confusion: Local Governance in Afghanistan, Kabul, Afghanistan Research and Evaluation Unit.

Mahmoudi R. & Boyer B., 2006, Jalalabad: A Resort City of Change; Case study of Jalalabad City, Plaisans, France, Groupe URD.

Majidi N., 2011, Urban Returnees and Internally Displaced Persons in Afghanistan, Kabul, Refugee Cooperation

McAuslan P., 2005, Urban Land Law in the Islamic Republic of Afghanistan: An Issues and Options Paper [Draft], Kabul, UN-HABITAT (unpublished).

Samaraveera V., 2009, Municipal Governance in Afghanistan: A Handbook, Kabul, USAID/Afghanistan Municipal Strengthening Program.

UN-Habitat, 2010 http://www.unhabitat.org/content.asp?typeid=19&catid=245&cid=362

USAID Country Profile, 2005 Property Rights and Resource Governance, Afghanistan.

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Notes

1 For further readings on the issue of urban governance and land legislation see the following reports and documents : Gebremedhin 2005; IDLC 2010; Lister 2005; Mahmoudi & Boyer 2006; Majidi 2011; McAuslan 2005; Samaraveera 2009.

2 In Pashtun communities there are different layers of representation. For example, a malik (community elder) is a person selected to represent a village or a number of villages based on their population size. The malik plays the role of bridge between the people and the Government. Another category is the speengiri (greybeards), a group of respected people within the village including the mullah, teachers, educated persons, retired government officers, and so on. There is one malik per village or group of villages, and perhaps ten to fifteen speengiri per village or group of villages. In most instances, the malik represents the village, but in some major cases or consultations, the malik needs to have the support of the speengiri. If an issue involves several different tribes and representatives of those different tribes are involved, the maliks and speengiri are known as tribal elders or leaders. If an issue concerns a single tribe, then the representatives involved are called speengiri.

3 Jalalabad is located very close to Pakistan, being 75 km away from the border, and PKS (Pakistani rupees) are very commonly used rather than AFN (Afghan Afghani).

4 It is important to recall that selling plots to anyone outside the five tribes was forbidden, as a matter of tribal pride.

5 Article 1, Decree N° 99, 04/02/1381 (Official Gazette N° 802, dated 28/3/1381)

6 Haji Qadir was Governor of Ningarhar during the last year of the mujahideen, up until the Taliban captured Ningarhar. He was also a Minister in 2002, during Karzai’s time as President, and was killed by unknown individuals in 2002 in Kabul. He was the foremost Commander of the Hizb-i-Islami Khalis Group. One of his brothers, Adul Haq, was killed by the Taliban during the US intervention against the Taliban in 2001. Qadir’s elder brother was also Governor of Ningarhar for five years during Karzai’s term in office.

7 See http://www.pajhwok.com/en/photo/152356 for details on one example of the Qasimabad demonstrations.

8 Article 1, Decree N°99,04/02/1381 (Official Gazette N°802, dated 28/3/1381).

9 Chapter 1, Article 9, Paragraph 2, Afghanistan Constitution, 2004.

10 Law on Managing Land Affairs, 31 July 2008, N° 958, Ministry of Justice, Afghanistan.

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Référence électronique

Wamiqullah Mumtaz, « Three Faces of Shafa. Land Ownership on Trial in Ningarhar  », Revue des mondes musulmans et de la Méditerranée [En ligne], 133 | juin 2013, mis en ligne le 01 août 2014, consulté le 22 août 2017. URL : http://remmm.revues.org/8071

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Auteur

Wamiqullah Mumtaz

Badloon Civil Society, Kaboul

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