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not accurate to assume that occupation is sufficient to secure smallholder tenure rights.
Contrary to the 1979 Land Law and the 1987 Land Law Regulations, people are often
displaced from their land, without compensation, by state authorities or by private interests
operating outside the law but with tacit state approval. This suggests a serious problem or
discontinuity between social reality, on the one hand, and law and public policy, on the other.
Most rural Mozambicans rely on a legal system that is not recognized by the state; they
apparently know little about statutory law. Also, the customary system does not seem to
function well when two or more communities are involved in a dispute. 107
At the same time, smallholder access and security are adversely affected by limitations
of the official judiciary system. The official court system does not hear land disputes
involving only the family sector. Infrequently the court system will hear a dispute involving
a smallholder and a commercial farmer. 108 Judges and lawyers at the district level in several
areas of the country stated that they would not hear or represent land cases involving
smallholders. The reasons they cited were few but consistent, including: (1) it was not their
responsibility to hear or represent these cases; (2) smallholders did not understand the law;
(3) they did not understand smallholder disputes (i.e., custom and law); and (4) smallholders
could not afford their services.
There is no structure that links the customary and the statutory legal systems—no courts
exist that bridge the gap between the two and bind them together. While some disputes enter
the court system (most disputes brought before official authorities are decided upon by
administrators and not the judiciary), customary rules and procedures are not part of or
permitted to be used in the official hearing process. No structure exists to permit disputes
heard at the local level in a customary setting, using customary laws, to be passed to a
"higher," formal court of appeal. 109
The overriding impression is that smallholders are largely excluded from the official
judiciary system. Disputes between smallholders and commercial interests or the state (and
to a large extent disputes among commercial producers) are often resolved by executive fiat.
The same officials who make decisions with regard to land distribution and access also make
judicial decisions on land conflicts. Thus, determinations about land access and land conflict
tend to be politically oriented and not necessarily based on the rule of law.
Significantly, the same may be said with respect to customary tenure in Mozam-
bique—decisions regarding land access may be politically or economically resolved rather
107. Although we lack substantial data on this point, the argument was made several times by participants
in the Second National Land Conference in Mozambique, 1994. These particular persons were not smallholder
farmers but government officials.
108. See Garvey (1994). This was also discussed at the Second National Land Conference in Mozambique,
1994.
109. This point was debated at the Second National Land Conference in Mozambique. Some participants
claimed that it was the fault of neither the law nor the judiciary; rather, the blame for unresolved land disputes
lay with smallholders because they did not use the official court system. Other conferees professed that
smallholders did not use the legal system because they did not understand it. See Weiss and Myers (1994).