Throughout the course of Afghanistan’s known history, land administration may be categorised into four transformational stages: Traditional (until 1933); Formalization Efforts (1960- 1970s); Radical (1980s) and Trend to Modernize (2011-present). Since the early 1900’s the government has been engaged in land administration, primarily as a means of tax collection. This activity has historically been the responsibility of the Ministry of Interior and the Ministry of Finance respectively, which was subsequently transferred to the Ministry of Agriculture, Irrigation and Livestock (MAIL). There continues to be a presumption that the tax rolls contain the names of the rightful owners of the land, and this has been codified in the Land Management Law of 2008. There have been periodic attempts to improve the accuracy of the tax rolls and increase tax revenues, by relying on landowners’ voluntary declarations (Land Declaration Law of 1960). However, these attempts have remained wanting in any significant achievements.
In 1963 AMLAK and Cadastre Directorates were created under the supervision of the Ministry of Finance, which resulted in the first accurate multi-purpose land inventory. Proper and systematic land registration or survey has not happened in the country, with the exception of a primary land survey, mostly in the rural areas conducted between 1964 and 1978. Nevertheless, the survey plan data do not record any land tenure changes since that time. According to the reports, fewer than 30% of immovable properties in urban areas and 10% in rural areas have been registered by state institutions (Alden-Wiley 2013).
This land inventory however did not include the document registration in the courts. In 1973, the Cadastre was separated from the Ministry of Finance and merged into the Afghanistan Geodesy and Cartographic High Office (AGCHO). This has deprived AMLAK of direct access to cadastral maps. Land reform was assigned to AMLAK, which completed a survey and collected information for 800,000 landowners and established new land quality classifications. AMLAK was transferred from the Ministry of Finance to MAIL in 1978 after which, under Soviet influence, land reform focused on expropriation of large landholdings and redistribution to the homeless and the poor. This measure was generally unpopular and the cause of much civil unrest.
In 1991, land reform came to a halt and AMLAK lost most of its personnel and support. Nevertheless, the AMLAK Department had limited operation until 2010 when it was merged with the Afghanistan Land Authority (ALA). The ALA was created within the MAIL in 2009 to act as a one-stop-shop for leasing state land to the private sector and to improve land use and increase government revenue. In 2010, the Cabinet of Ministers merged AMLAK with the Independent Commission for the Restitution of Illegally Occupied Land, which had been created by Presidential Decree No 638 dated 22 April 2010, and ALA, naming the resulting organization ARAZI. Thus, more than 900 AMLAK employees were consolidated with 337 offices spread across all 34 provinces. These offices are located in the capital of each province and in the majority of the rural districts.
ARAZI was granted all the authority and the responsibilities of AMLAK, ALA, and the Independent Commission for the Restitution of Illegally Occupied Land. It has the primary role in carrying out many of the directives of the Land Management Law of 2008, which was enacted prior to the creation of ARAZI. ARAZI was part of the Ministry of Agriculture, Irrigation and Livestock (MAIL) until May 2013 when it was declared Afghanistan’s Independent Land Authority by a Cabinet resolution. At the same time, the Cadastral Survey Department of AGCHO was merged with ARAZI for better coordination of land related activities and services, with all its structure and services transferred to ARAZI.
In general, the current responsibilities of ARAZI include:
Pursuant to Article 4 of the Land Management Law (LML) of 2008, MAIL was responsible for managing state land in the country. Based on the Cabinet Resolution No 11 this authority is now transferred to ARAZI, and this has been incorporated in the proposed amendments of the Article 4 of the LML. ARAZI will be managing state lands and public lands regardless of their location. It will not own the public lands but provide land related services to government institutions, individuals, investors, including the municipalities. ARAZI will not manage land owned by the municipalities, but will provide urban land use mapping and cadastral surveys for city planning, Tasfiya, land conflict resolution, as well as other services for the municipalities.
ARAZI has attempted to register state and private land through the Tasfiya process, which has not had any significant progress. In creating a land inventory, ARAZI intends to eventually survey all of Afghanistan to a high degree of accuracy, to determine the state and private land more accurately. However, this surveying function also appeared to have been assigned to AGCHO by Article 16 of the Land Management Law. This is yet another example of administrative overlaps surrounding the individual roles of the various departments and ministries involved in land administration in Afghanistan. With the merger of AGCHO’s Cadastral Survey Department with ARAZI, a major issue of institutional responsibility overlap has been resolved. The ARAZI 5-Year Road Map and Strategy envisages significant efforts to consolidate and address shortcomings in related legal, technical, administrative and management tasks under ARAZI to avoid duplication and potential mismanagement of land administration.
With the establishment of the High Council of Land and Water in 2015, under the leadership of H.E. the President - Mr. Mohammad Ashraf Ghani, ARAZI has gained strong political support for its land reform agenda. The new Council has become an oversight body for ARAZI, thus ensuring that a "checks and balances" system for ARAZI's operations is in place. The Council’s task is also to approve new policies related to land administration and management as well as for the water sector. It supports and oversees the implementation of these policies, ensures necessary coordination among government entities, private sector, and donors. The council is also involved in resolving issues such as state and private usurped lands, and facilitating implementation of major national public welfare projects. The Council has 16 members, most of whom are sector ministers, as well as the representatives from private sector and civil society.
ARAZI whose mission is to become “an independent, effective and efficient public institution that provides transparent land [administration] services, contributing to stability and growth” is now a recognized independent government agency, and backed by regulations and policies of the Afghan government. ARAZI is in the process of establishing the necessary streamlined organizational structures, best practice, transparent procedures and solid reporting lines in the national context. These include regulations, the development of terms of references, standard procedures, processes, roles and responsibilities for service delivery supported by relevant capacity development.
One of the immediate challenges that ARAZI needs to address is the lack of human and institutional capacities. Its current capacities and operational framework are too limited to function successfully, and in a timely manner, in the complex task of land administration and management. Recent institutional changes have paved the way for a more streamlined provision of land services, with some functional overlap among some institutions. This situation often impedes an effective and efficient response to the increasing demands from the government, citizens, and investors. The IDPL is expected to address most, if not all, of these and other impediments in line with the ARAZI 50-Year Road Map and Strategy.
The UN defines land administration as “the process of determining, recording and disseminating information about ownership, value and use of land and its associated resources. These processes include the determination (sometimes called ´adjudication´) of land rights and other attributes, surveying and describing these, their detailed documentation, and the provision of relevant information for supporting land markets.”
Building a well-functioning Land Administration is deemed a long-term objective that will both be impacted by, and at the same time have direct impact on peace and stability. The existing Land Administration will gradually evolve from its present disjointed functions that combine certain aspects of land administration with some aspects of land management, into an organized and well-functioning Land Administration. The system will provide an efficient, transparent and just service delivery to the public, and beyond that, the system will also aim at playing a facilitative role for building a multipurpose spatial information infrastructure that supports sustainable development.
The National Land Policy, adopted in 2007 and revised in 2017 has been endorsed by the National High Council for Land and Water pending approval by the Cabinet. The main objectives are to provide guidance on developing legal and institutional frameworks as well as administrative and technical practices. The National Land Policy is based on a set of coherent principles that are in line with international best practice and the VGGT principles. These are:
ARAZI aims to realize its long-term objectives within the context of the VGGT principles, local needs, resources, opportunities and threats, through a coherent long term strategic planning. With its continuous efforts regarding the legal, institutional, and technical aspects of land administration, ARAZI plans to transform the current institution into a modern, well-functioning serviced-oriented institution. The IDPL is envisioned as a vehicle to this formidable set of objectives.
The IDPL is under no illusion to assume that contribution to the stated objectives and delivering the required land related services are less than daunting. It may be argued that the private sector or public-private partnership (PPP) may be better placed to provide some of the services. ARAZI fully recognizes the benefits of engagements in land administration by the private sector. However, in Afghanistan the private sector does not seem to boast any significant capacity in land administration. However, under the IDPL, ARAZI shall enhance its efforts to support the development of the private sector to gradually provide services under contractual arrangements in ARAZI. The private sector development under the IDPL envisages additional training and internships with ARAZI for graduates of the ICLA and the Kabul Polytechnic University.
Notwithstanding the current situation regarding the missing private sector in land service delivery, the private sector and its various shades and forms ranging from PPP to complete privatization does not seem to be a silver bullet. In a critical review of global experiences with PPP for land registry services, Bell (2017)9 suggest that some seemingly successful experiences may have harbored hidden costs while a large number of cases may having failed to deliver on the stated and intended objectives. The review suggests that many factors contribute to the success of PPP and other forms of privatization, critically unambiguous definition of services with Specific, Measurable, Adequate and Time-bound (SMART) indicators to monitor, assess and adopt timely corrective measures. This includes the mandate and capacity of the state for an effective regulatory control and credible corrective measures as well as the capacity of the private sector to deliver the required services. ARAZI as an institution has to develop its capacities for oversight and monitoring, before the private sector can gradually take on a bigger role. Therefore, a gradual private sector engagement has been envisaged under the IDPL.
The Turkish Land Administration has only recently relied on contractual arrangements for very specific services with the private sector, after the latter had acquired adequate and credible capacities to deliver specific services. The great majority of the private sector engaged in land administration service provision in Turkey is former technical staff of the TKGM, without whom the private sector would not have existed in the sector. Banking on the review of international experiences with PPP in land registration services as highlighted by Bell (2017), ARAZI and by extension the IDPL has considered the Turkish experience with the private sector engagement. ARAZI shall engage in contractual arrangements for specific services with the private sector only after the private sector in Afghanistan has acquired the required capacities to deliver such services and after ARAZI itself has acquired the necessary technical and operational capacities for necessary oversight and monitoring.