Land Rights in Mozambique

1.      GENERAL

The existing Constitution of the Republic of Mozambique expressly states that "land is the property of the state and (...) shall not be sold or in any way alienated, nor mortgaged or pledged[1]", with private individuals having the right to use and benefit of the land as the universal means of creating wealth and social well-being.

Accordingly, in the Mozambican legal system, there is, on the one hand, the state's right of ownership over land and, on the other, the right to use and benefit from the land granted to private individuals, as the main beneficiaries and users of the land. These are the main rights that affect land and around which the rules on access to land in Mozambique are structured.

For a better overview, to further analyze each of these rights, a brief reference should be made to the legal framework within which land rights are structured in Mozambique.

Prior to Mozambique's independence, access to land was regulated by the Regulation for the Occupation and Concession of Land in the Ultramarine Provinces, approved by Decree 43.894 of 6 September 1961, creating various categories of land users and defining different rights through which land could be accessed.

Pursuant to the said regulation, Mozambicans could occupy plots of land individually or jointly. Individual occupation was achieved by means of the following:

a)      aforamento, also known as emphyteusis or embezzlement, which entails splitting the right of ownership into two domains: direct domain, that remains the property of the owner, in this case the Portuguese colonial state, and the useful domain of the landowner or leaseholder;

b)     leasing;

c)      the purchase and sale of land occupied by urban buildings or acquired for their construction in cities.

Joint occupation was made by the populations of rural areas, according to customary practices and rules, and did not entitle them to individual property rights, being regulated by their respective customs.

After Mozambique's independence, the first Constitution of the Popular Republic of Mozambique approved in 1975 stipulated that all land in Mozambique was the property of the state, which was responsible for determining the conditions of its use.

As such, former landowners, citizens who used the land according to customary practices and norms, and all others who used the land through other mechanisms provided by private property rights "(...) suddenly became mere users of the land through a legal mechanism, which, however, was only clarified four years later (...)"[2] with the enactment of the first Land Law, approved by Law no. 6/79, of 3 July, when this legal mechanism came to be known as the right to use and benefit of the land.

The first Land Law and its regulations required land users to apply for a new type of "licence" for economic purposes, as well as the possibility of validating definitive concessions for the leasing, tenancy and other ownership of land, given before the date of Mozambique's independence, provided that, under the terms of the legislation in force, they had not been nationalized, seized, declared abandoned or in any way interfered with by the state, and that, for validation purposes, the data on the title and the factual reality should match.

This possibility of validation ceased with the approval of the new and current Land Law Regulations, approved by Decree 66/98 of 8 December.

On the other hand, the new Land Law, approved by Law 19/97, of 1 October, which is currently in force, protects rights acquired previously, either through occupation, according to customary norms and practices that do not contradict constitutional norms, or through the approval of a request.

These customary norms and practices, however, are not defined in the Land Law and its regulations, due to the recognition of the existence of the legal pluralism that is a characteristic of Mozambican society, which has a dual meaning: 1) the existence of various customary normative systems; and 2) the coexistence of these various customary systems with the state's positive normative system. According to the author André Calengo, the recognition of the use and benefit of land by occupation through customary practices is tied to the custom in Africa of the sacred character of land and its inalienability.

Alongside the mechanisms of customary law for acquiring land by occupation, access to land by citizens can be done through state authorization of a formal request addressed to the competent public administration body.

2.      LAND PROPERTY RIGHTS.

According to Mozambican legislation, ownership of land is an exclusive right of the state, constitutionally recognized, that not only includes all the rights of the owner, but also the power to determine the conditions of its use and benefit for natural or legal persons. Nevertheless, the powers of the state-owner are restricted by the constitution, given that it cannot sell or in any way alienate, mortgage, or pledge the land.

By land belonging to the state, the lawmaker means that the land belongs to the whole politically organized community, in the sense of the state-community and not the state-political power, i.e. the state-administration, which is only a form of embodiment and externalization of that community. This view results from the fact that land is constitutionally considered a universal asset for the creation of wealth and social well-being, the use and benefit of which is the right of the entire Mozambican people, i.e. each of the citizens making up the Mozambican community.

This affirmation of the principle of land for all Mozambicans is materialized through the implementation of a variety of measures, such as: i) setting preferential rates for Mozambican citizens; ii) total exemption from paying land use fees for local communities and the individuals who make up these communities, citizens for family exploration purposes, cooperatives and small-scale national agri-livestock associations. These are measures aimed at giving citizens access to land as a way of accessing wealth and social well-being, bearing in mind that it is on land that agriculture is based, which is the basis of subsistence for the majority of the Mozambican population.

It must be noted that state ownership of land is a right with exclusive content, to the extent that only the state can be the owner, no other party or entity, public or private, can be the holder of the right of ownership over land. Other legal persons with a population and territory, such as local authorities, cannot be the owners of property rights over land, as this is a right that is constitutionally attributed to a single party: the State-Community.

Whilst the legislator allows certain individuals access to land through customary practices and usucapion, without the intervention of public authorities, the state's right to property falls on all the land that makes up the territory of the Republic of Mozambique, whether occupied or not, given that the legislator expressly states that "in the Republic of Mozambique, all land forms the State Land Fund".”[3], with the aim of clarifying that, within Mozambican territory, there is no such thing as unoccupied land.

The state-owner's constitutionally limited power of disposal is manifested in practice through the acts conducted by the public administration, which main functions include:

•  Administration - responding to applications for authorization to use and benefit from the land;
•  Redistribution - redistributing land according to the principles of social justice and equity;
• Management - adopting and enforcing protection and conservation policies and guaranteeing conditions of use;
• Guaranteeing Rights - ensuring the rights of land users through the courts and other conflict resolution bodies.

This shows that the nature of the state's ownership of land is that it is public property, owned by the state-community, and managed and administered by the public administration system, using the principles, rules and provisions of public law.

3.  RIGHT OF USE AND BENEFIT OF LAND

The right of private individuals to land is known as the right to use and benefit from land. For private individuals, this is a constitutionally consecrated right, with fundamental economic content, of access to wealth and social welfare, and not just a temporary license or lease.

There may be an understanding that the state's right to property is always greater than the right to use and benefit of the land, insofar as property is the greater property right. However, it must be noted that these two rights are different in nature, particularly as a result of the broad powers of use and benefit and the guarantees that the right to use and benefit from land confers on its holders, which other lesser property rights do not have.

When the two rights are compared, it becomes clear that, on a legal-formal scale, both rights are on the same level, insofar as they are recognized in the Constitution of the Republic. But from a practical point of view, there are moments of superiority whose terms are inverted at one point or another, since there are times when the State's ownership of the land appears to be superior and, at other times, it is the right to use and benefit of the land that has superiority.[4]

In fact, the relationship that is established between the two rights, from a legal-formal point of view and from a theoretical perspective, results in a relationship in which the state's right to property appears superior to the right to use and benefit of the land. This happens, for example, when the state accesses particular areas of land to pursue a public interest.

However, in terms of the social function that the two rights fulfil, their position is reversed, as in this instance the right to use and benefit is greater than the state's right to ownership of the land. In this relationship, it is perceived that the state owns the land in order to allow private individuals to access and use it. Thus, "...the state's right of ownership over land appears as an instrumental mechanism of the citizens' right to use and benefit from the land..." and it is by this means that they effectively enjoy the utilities of the land asset.

Therefore, and considering that both rights - the right to state property and the right to use and benefit of land - are constitutionally enshrined rights, the state cannot, using its capacity as owner, jeopardize the right to use and benefit from land when it is titled by a private individual.

While the administration and management of land is governed by the rules of public law, considering the legal nature of the state's ownership of land (which is public property), the right to use and benefit from land is essentially governed by private law, since in this case it concerns relations between private individuals or between them and the state, deprived of its jus imperii[5].

It is, therefore, by reading and interpreting the legislation on land, as well as its origin and social context, that one can familiarize with and understand the legal nature of the right to use and benefit of land consecrated in the Mozambican legal system, especially in terms of analyzing its subjects and its vicissitudes, namely the acquisition, transfer and extinction of this right in the legal domain of citizens.

1.  Article 109 of the Constitution of Republic of Mozambique (CRM).
2.  André Jaime Calengo, Lei de Terras Anotada e Comentada, Centro de Formação Jurídica e Judiciária, Maputo, 2005, pag. 114.
3.  Article 4 of the Land Law.
4.  André Jaime Calengo, Lei de Terras Anotada e Comentada, op. cit., pags. 92 and followings.
5.  André Jaime Calengo, Lei de Terras Anotada e Comentada, op. cit., pág. 72