Proposed customary land reform under the private sector spotlight

Private sector stakeholders from around Sierra Leone held a roundtable discussion in Freetown in early April to review proposed reforms to customary land legislation. Facilitated by Invest Salone, participants exchanged views about whether the new laws would genuinely stimulate responsible investment.

Two draft Acts were discussed – the National Land Commission Act, 2021 and the Customary Land Rights Act, 2021. They are currently before parliament and represent a major shake-up of the system.

Nearly all of the land that is suitable for large-scale commercial agriculture in Sierra Leone is located in the districts and managed under customary law, which consists of communal ownership by ancestral landholding families and individual rights of occupation that have been allocated by Paramount Chiefs and other traditional rulers.

The roundtable discussion was attended by Christopher Forster, the President of the Sierra Leone Chamber of Commerce, Agriculture and Industry (SLCCIA) and members of the Commercial Agricultural Producers and Processors Association (CAPPA) including Miro Forestry and Timber Products, Socfin, Sierra Tropical SL, and Goldtree. Also in attendance: Donald Smart, CEO of Mountain Lion Agriculture; Andrew Keili, Mining and Environmental Policy Analyst; Ammar Kamara, Country Director of Empower Africa, and representatives from law firm Macauley, Bangura and Co.

The first part of the discussion raised serious concerns about clauses in the draft Customary Land Rights Act that limit lease agreements to an initial maximum of 5000 hectares, and for a period not exceeding 21 years for non-citizens.

Philip Tonks, General Manager of Socfin said that the consequence of these clauses would be a decline in investment in plantation crops in Sierra Leone: “Tree crops such as forestry, palm, rubber, and citrus enter their prime production after 20 years. This means that agribusinesses will be renegotiating their leases when their crops are in their prime. Socfin has been here for 11 years, and we are only now starting to get a return on our investment.”

Overlap with existing legislation was also an issue discussed by stakeholders. Andrew Keili highlighted duplication between the draft bills and existing agencies and policies such as the Environment Protection Agency and environmental protection legislation, as well as the Mines and Minerals Act and the Local Content Act, which could lead to confusion. Keili also pointed out that communities may lack the technical capacity to operationalise the roles and functions devolved to them in the new Acts.

Participants also queried Clause 38 of the draft Act, which states that government agencies may set minimum rates for the leasing of land for specific purposes and did not include provision for investors to take out independent valuations. Philip Tonks asked: “How will a blanket rate be determined? Land value depends on location, resources and facilities – such as proximity to water, access to infrastructure and soil type.”

Other concerns included:

  • Broad and ambiguous wording  e.g., ‘sensitive’, ‘fair’, and ‘ecologically sensitive’.
  • The requirement for the written informed consent of every male and female adult member of the family or community prior to purchasing family land, rather than by a defined majority.
  • The requirement for rent to be paid into community or family bank accounts, where some families may prefer alternative payment methods.
  • A grievance redress system with no provision for investors to place a grievance.
  • No mention of the rights of land-users.
  • Community access to/use of leased land with no recourse for the investor if damage is caused.
  • No recognition of international sustainability standards.
  • The requirement for an investor to have been supporting an out-grower scheme within its area of operation to acquire land exceeding 5000 hectares, when not all agricultural business models use such schemes.
  • The requirement to provide internal sensitive and confidential business information to communities, which is not international standard practice.
  • The requirement for investors to declare projected profits to communities as part of negotiations, which could lead to unrealistic expectations, given that projected profits may not materialise.

Suggestions for the proposed National Land Commission included:

  • Ensuring that the Commission is functional before the Customary Land Rights Act is introduced.
  • An interim arrangement to support capacity building in the proposed Land Commission.
  • A place on the Board of Directors for private sector representation through business membership organisations.

Lawyer Centus Macauley cautioned that the customary land tenure system is a nuanced and complex area with no quick fix. “Parliament should be alert to the possibility of trying to legislate for too many eventualities and create confusion instead of clarity. We currently have a flawed but workable system. Investors prefer stability. We do not want this new bill to have the opposite of its intended effect.”

Following the discussions, the roundtable agreed to take their queries to parliament, with submissions from both SLCCIA and CAPPA.

Chukwu-Emeka Chikezie concluded the meeting by saying: “Invest Salone has facilitated discussions between civil society organisations and some private sector actors as well as this session dedicated to agricultural land investors in the private sector. Government of Sierra Leone officials have championed this process. We have also heard Paramount Chiefs’ concerns from news reports. While there are undoubted differences and concerns, they are dwarfed by the common ground upon which we all stand. We need to give the process the time for dialogue, with all parties sitting round the same table to understand each other’s’ perspectives, fears and legitimate misgivings.”

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