The difficult future of Land Funds for Peace
[Translated by David Van Den Brandt, CSN Volunteer Translator]
Source: http://censat.org/es/analisis/
The land agreement signed in Havana proposes to create a land fund for campesinos (farmers) that don’t have any land or not enough. The problem is that the state doesn’t even know how many baldíos (empty and/or uncultivated plots of land) it has. Nor has it recovered the lands usurped from the victims of the armed conflict.
The past year, the government and the FARC signed an agreement regarding this land issue, the first of six topics on the agenda being discussed in Havana. There, the government promised to create the Fondo de Tierras para la Paz (the land fund for peace), through which it would develop a full agrarian reform that supposedly would guarantee access to land for campesinos, communities affected by extreme poverty, abandon, and the armed conflict.
According to the agreement, drawn out May 26, 2014, the Fund will contain baldíos (empty and/or uncultivated plots of land) that were appropriated illegally or irregularly. These properties are not being cultivated and contain pieces of land currently in protected forest zones. The problem is that the government does not how many of these baldíos it possesses; some state funds lack descriptive information; others are administrated as properties already allocated to victims of the armed conflict as reparations and restitution. Furthermore, a number of funds are caught up in administrative and judicial processes.
If we don’t reverse this situation, there will be a lot of difficulties in carrying out the Comprehensive Agrarian Reform, which, according to the agreement, “aims to integrate all regions, eradicate poverty, promote equality, close the rift between rural and urban, and to protect the rights of the citizenry so that they may be enjoyed.” The goal is the reactivation of rural life: the farming, familial, and community economy.
VerdadAbierta.com has asked for information from the Instituto Colombiano de Desarrollo Rural (Incoder), from Fondo de Reparación de la Unidad de Víctimas, from the Fondo de Tierras de las Unidad de Restitución, and from the Sociedad de Activos Especiales (SAE), in order to learn about the availability of lands with which to build the Fund. The result hasn’t been the best: the information is disperse and incomplete. With things like they are right now, the state only has a million hectares to comply with the compromise reached in Havana.
Incoder: without a census of baldíos and ethnic lands
El Instituto Colombiano de la Reforma Agraria (INCORA)… was born in 1961 to advance rural reforms that president Carlos Lleras Restrepo launched. In those years, people recognized the need to give land to campesinos who didn’t have any. The medium and small sized campesino was sustaining the agricultural production of the country without owning a single parcel of land.
In 2003, INCORA began to call itself Instituto Colombiano de Desarollo Rural (INCODER). Its task is to prevent the concentration and accumulation of properties as well as provide disadvantaged sectors with land. This entity, to large extent, will carry out the agrarian agreement reached in Havana.
INCODER awards subsidies to campesinos so that they’re able to access farms and plantations. The organization relies on several funds for which it doesn’t have complete information. The Technical Direction of Baldíos, for example, is in charge of administering the properties of the Nation—those which should be a priority for campesino, indigenous, and afrocolombian communities.
Despite the Constitutional Court’s order in July 2014 that INCODER carry out a census of the baldíos, the organization has said that it still doesn’t have one prepared. Its justification is that it administers baldíos as long as those interested in them comply with requirements set out by agrarian reform. They must also present a request for allocation.
This explains why, in municipalities like Restrepo and Fuente de Oro, in the Meta department, or in Yopal and Aguazul, in Casanare, the hectacres with land titles (originally baldíos) exceed the municipal area. Contraloría [Government accountability office] warned of this situation in a report on the irregular accumulation of baldíos in Altillanura, published in 2012.
Although INCODER has assured that its purpose is to recover a million hectacres, it hasn’t clearly indicated which lands make up this figure. Nor has it said who usurped them. It hasn’t given a timeline or project plan either. At the end of 2014 INCODER assured us that it was working towards the recovery of 378,000 hectacres in 518 cases in Puerto Gaitán, Puerto López and San Martín (all in Meta), but at the time of this publication has not advanced these cases.
Using resolutions, INCODER is able to order the recovery of baldíos. However—and with the exception of the case of Jiguamiandó and Curvaradó in the bajo Atrato Chocoano, where there was an illegal appropriation of collective properties that were covered with palm trees—the institution has done little in furthering these processes.
Another delay is the ordinary justice system’s back-up in resolving INCODER’s so called demands to nullify land titles. This figure allows it to ask a judge to cancel a title to property that several companies may hold because they accumulated such land due to its baldío status (empty and/or uncultivated plot of land). Controlatoría pointed out in its 2012 report 14 cases in which individuals and business owners accumulated 215,000 hectares with titles—yet these lands were in the process of agrarian reform.
Of these cases, only judges only accepted three: the demands against the Grupo Empresarial Mónica Colombia SAS, Helm Trust S.A., and the Sociedad Poligrow Colombia. Meaning, judges have only studied 30,000 of the 215,000 hectares accumulated in Meta, Casanare, and Vichada.
Even though INCODER sustains that it allocates baldíos as it receives requests, the data from the past two years reveal that this has not been a priority in recent its agrarian policy, and now it’s declining priority. In Havana, all parties recognized the necessity of providing the poorest communities with land—but while in 2011 and 2012 INCODER gave out titles for 898,000 hectares of baldío land to 27,000 families in this condition, it only gave out 208,000 to 12,000 families in 2013 and 2014. The difference is nearly 700,000 hectares.
Yamile Salinas Abdala, a researcher at the Instituto de Estudios para el Desarollo y la Paz (INDEPAZ), has warned that the state does not know how many baldíos it has, which ones it has allocated, how many and which ones have new owners, nor how many are located in ethnic territories or protected environment areas, like national parks and forest reserves. “Besides, the looting and/or dispossession of lands is not being penalized, demands for nullification are slow and complex, and the confiscation of lands by the government (because of illicit wealth gains, the laundering of assets by narcotraffickers, paramilitaries, guerrillas and corruption), despite the reforms, isn’t moving foward”, Salinas says.
The Fondo Nacional Agrario (FNA) [National Agrarian Fund] is another “stock” that could supply the Land Fund for Peace (Fondo de Tierras para la Paz). Born likewise in 1961, it holds state properties that are not baldíos, but that have agricultural uses and can be titled to campesino communities. Currently, this Fund has 4,800 properties that make up 530,000 hectares, the majority located in Cesar, Bolívar, Cauca, Sucre, and Meta.
As in the case of the baldíos, FNA’s allocations have been shrinking for some time. In 2011 and 2012 INCODER gave 16,000 hectares to 1,600 families in different regions of the country; in 2013 and 2014 it hardly gave 6,600 hectares to 1,300 families. This is to say that in the last two years it titled 10,000 hectares less.
The Dirección de Asuntos Étnicos [Administration of Ethnic Affairs] is another proceeding of lands within INCODER and is in charge with attending to territorial needs of indigenous people and those of afrodescent. While it’s true that official numbers registered that between 1966 and 2014, 32,000,000 hectares were titled to 724 indigenous reservations and 5,000,000 to 118 communitarian councils of Afrocolombians, this organization does not know how much land these communities are currently demanding.
The institution justifies this saying that to carry out a study that would allow it to determine the quantity and quality of lands used by these communities it would need the approval of the Comisión Nacional de Territorios Indígenas and agreement by black communities.
This answer is limited to administrative issues and explains why, for example, the restructuring of 50 colonial era reservations is still pending and why ethnic titling errors in the Cauca have not been resolved.
What other lands are there?
The proposal in Havana indicates that another possible source with which to create the Land Fund for Peace is the rural properties that have been confiscated by the government. They were, before confiscation, linked to narcotrafficking mafias and full of corruption.
According to Law 1708 of 2014, or the Code of Government Confiscation, these properties have a specific destination. Article 91 points out that confiscated rural properties “will be destined for programs that generate access to land, administered by the National Government”.
The Dirección Nacional de Estupefacientes (DNE) [National Drug Administration] used to administer these lands, but corruption and poor organization brought about its liquidation.
In October of 2014, the liquidation of DNE ended and the properties were put in the hands of the Sociedad de Activos Especiales (SAE) [Society of Special Assests]. This Society is affiliated with the Ministry of Lands and Public Credit, and its function is to administer the properties of the Fund for Rehabilitation, Social Investment, and Fight against Organized Crimes (FRISCO). According to the SAE’s information, they currently administer 23,874 properties, 21,185 of which are pending judicial review for confiscation. 2,689 already have been confiscated.
SAE reports that of its 23,874 units, only 27%—6,445—are rural. Together, they account for 209,000 hectares distributed throughout the country. From this source, 200,000 hectares could be made available for the Land Fund for Peace. However, in practice, there are many problems that prevent the use of these properties.
For example, no one knows exactly what needs to be done and against whom. The lands lack identification, the state doesn’t know their worth, and there isn’t a refined inventory. Furthermore, these properties have not been judicially prepared, in part because they owe taxes or because the holders are unknown, meaning the persons or institutions that care for the lands.
SAE has shown poor handling in cases concerning confiscated drug producing properties as well as the Fondo de Víctimas [Victims Fund] from Law 975 of 2005. Justicia y Paz warned of this in the sentencing of Jorge Iván Laverde (“El Iguano”) back in December of 2010. It questioned why Acción Social ended up administering these properties and not SAE. “Acción Social is not an organization that exists to administer properties; for that job they created the Sociedad de Activos Especiales, SAE, which, according to la Sala, hasn’t shown a capacity of doing so,” affirmed the judges.
Besides, very few of the units that SAE administers are apt for agrarian reform or restitution. Another problem is that extradited exparamilitaries put a number of properties in the hands of the Treasury of the United States to reduce their sentences, but it is still not know which properties.
The panorama gets more complex because there isn’t a clear understanding regarding the normal process of confiscation versus the processes that transnational justice carries out through Justicia y Paz and the Law of Restitution of Lands.
Another source with which the Fund could be filled is the group of lands dispossessed and looted by the guerrilla war waged by the FARC. In 2012, the Unidad de Restitución de Tierras [Unit for the Restitution of Lands] affirmed that this guerrilla war had provoked the abandonment and destruction of 600,000 hectares in the entire country. Nevertheless, these lands claimed in restitution are already promised because they belong to the victims of the armed conflict. In the case of the FARC lands, which for now have not been claimed, it’s likely they will be confiscated. But only once the process in Havana has concluded will we know if they will be put into funds for reparations to victims.
One option to guarantee land for campesinos that don’t have any, or rely on very little, would be the areas of campesino reserve. As of March of 2013, this was made up of six regions that composed 831,000 hectares and seven more were in the process of constitution, comprising another 753,000 hectares. At this same date, ten more had applied for this labeling, totaling 471,000 hectares, spread across Cauca, Valle del Cauca, Arauca, and Huila.
But to convert this figure into reality isn’t easy either, as happens with the community councils and reservations, given the faults of the outdated lands registry, the titling and accumulation of baldíos, and the lack of clarity around the properties titled to individuals and companies. El Centro de Estudios Interculturales at Universidad Javeriana de Cali points out that only in regions where the government has plans for development for the so called Regions of Interest for Rural Economic Development (ZIDRE, in Spanish), there are 433 reservations, 25 areas of campesino reserves and lands for food production, besides the 20 afro collective territories. So, the lands thought to be for the agricultural industry currently belong to specific communities or are being requested by them.
Funds for the Victim Law [Ley de Víctimas] and agrarian subsidies, intertwined
The Law of Victims and Restitution of Lands created funds of properties and lands for reparations to victims. That means that the hectares administered by the Victims and Land Units [Unidades de Víctimas y Tierras] will not be destined to satisfy the agrarian issue, because their purpose is to provide reparation to the 8,000,000 victims that, according to the report Basta Ya of the Centro de Memoria Histórica, were forced to leave or were taken from their lands and territories.
The Victims Unit [Unidad de Víctimas] administers the Fund for Reparations, which contains properties submitted by paramilitaries and guerrilla fighters, the fines given to sentenced ‘parapoliticians’, and the resources that come from governmental confiscation. But the government never determined the quantity of land that should be put into that Fund. Therefore, there are confiscated exproperties of paramilitaries and narcotraffickers that still haven’t entered this Fund and are being administered by the SAE.
The task of that Fund is judicially prepare properties, monetize them, and then with that money, comply with the administrative reparation, which is a type of reparation that the victims receive.
According to this Fund’s data, the Unit administers 644 properties that comprise 85,000 hectares throughout the country. Of these, 129 were requested for restitution of lands, which means that, in reality, the Fund only has 535 properties comprising 71,000 hectares. Finally, only 309 of these properties are large farms/estates, small farms, parcels and plots, comprising 68,000 hectares.
The Unidad de Tierras [Lands Unit] relies on the Fondo de la Unidad de Restitución [Restitution Unit’s Fund], composed of resources and properties for compensating or compensate victims of dispossession, violent abandonment, or even ‘second occupants’ (families that are using lands destined for restitution but did not use violence to take them over).
Although article 113 of the Ley de Víctimas [Victim Law] says that this Fund can be fed with rural properties that may have been confiscated, the Unit has been opposed to receiving this type of land. It argues that those properties are not prepared and it will only accept those ready for agricultural production to compensate families according to judicial orders for restitution. This explains why in this Fund there are only 15 properties that comprise 233 hectares for this kind of compensation. In cash, the Fund has another 27 billion pesos.
But the 68,000 hectares that are available in the Fund of the Unidad de Víctimas nor the 233,000 that the Lands Fund has will be used to feed the Lands Fund for Peace.
Nor will be used the Subsidio Integral Directo para la Reforma Agraria (SIDRA) [Direct Comprehensive Subsidy for Agrarian Reform], which INCODER administers and attempts to give up to 71 current monthly minimal wages—45 million pesos—so that campesinos may have access to lands.
According to INCODER, there are currently 13 billion pesos available for the application of these credits, but the government decided that these subsidies will only be given to families that are victims or that are a part of relocation and return processes, as indicated by the Unidad Nacional de Víctimas [National Victim Unit]. This means that poor communities that need access to land but may not be victims of violence cannot access the funds provided by SIDRA (Direct Comprehensive Subsidy for Agrarian Reform).
Nonetheless, this decision made by INCODER goes against the Plan Nacional De Desarrollo 2014-2018 [National Development Plan 2014-2018]. In article 96, it is established that this subsidy will be given one time to “campesino families lacking resources”.
Furthermore, the government does not know how big of a demand there is for lands coming from communities without land or with insufficient land. There’s no official number that recognizes that quantity of land that’s need to pay off that social debt.
Is it viable?
If all these available lands are added together, right now the government has only 525,000 hectares that are in the National Agrarian Fund. If INCODER manages to recover the properties that were once baldíos there would be another 378,000 hectares. And if SAE manages to organize the 209,000 hectares contained by the rural properties in its administration, the State would have only 1,100,000 hectares with which to supply the Land Fund for Peace.
Alejandro Reyes, a consultant for High Commission for Peace, member of the Rural Mission and an expert on the topic, recognizes that the State does not have an inventory and much less a registry of available baldíos (empty and/or uncultivated plots of land). “Even worse, there aren’t any baldíos that don’t have settlers or ranchers who have hopes for titling by the state.”
However, this calls attention to the agreement in Havana, which contemplated three vias for allocating land: formalizing small properties, restitution of dispossessed lands, and the creation of the Fund. The latter aims to give land to two thirds of agrarian producers that don’t have any or don’t have enough to produce.
To achieve this, Reyes thinks that the State must go about creating a real land registry with geo-references and maps with accurate scales according to the size of the properties. “A new lands registry will allow us to have a cadastral map of protected areas, collective territories, reserves and reservations, baldíos, and private properties.” Another key action would be to reform the current system of registry so that all registries reference a single master registry. “Currently, any new registered transaction requires the registry to change the maps starting with the written description of boundaries, creating systematic and endemic chaos,” he says.
Reyes says that yet another important action to carry out the allocation of land would be to create an agrarian jurisdiction. The goal is that agrarian judges apply agrarian law, “favoring the possession rights of campesinos, and not civil law, as is done now, favoring registered land owners”. The consultant explains that this jurisdiction would avoid the need to consult litigious-administrative jurisdiction that usually indefinitely prolongs agrarian processes in courts and the State Council.
Darío Fajardo, researcher at the Historical Commission of the Conflict and its Victims, and one of the academics who has published the most on the rural issue in Colombia, explains that with the current design of the institutions that carry out rural development, “we cannot believe that the available information and statistics are true”. His main argument is that these institutions were put together with the perspective of the business community and not the rural communities themselves.
Therefore, Fajardo suggests that the proposal put forth by the victims’ movement be heard: the creation of an alternative lands registry that would make communities the main source for the identification of properties that were abandoned and dispossessed/looted/divested. “There are between 6 and 8 million hectares that were usurped during the conflict. Where are they? These communities were not living in the air. Those lands exist but they need to be recovered,” affirms the researcher.
Fajardo believes that the country must carry out a real process and recognize where these violently usurped lands are. “The technical means are there but what’s lacking is the political resolution to just do it,” he points out. He thinks the reconstruction of institutionality must be down-up, from communities up to the government listening to the needs of campesinos and ethnic communities. “The current model impoverished the rural sector and made the financial sector rich. The new design means that institutions cannot continue with that bureaucratic perspective. It must be a local one,” he concludes.