Nicaragua
Nicaragua's Real Property Debate
Anne Larson
In last year's final round of negotiations between the FSLN and the government, Sandinista leaders raised more objections than ever before about the government's neoliberal economic policies. The Cabinet responded by dealing a blow to Sandinismo's weakest spot: the so called "piñata" of urban and rural properties distributed by the outgoing Sandinista government to supporters during its two month lame duck period after the February 1990 elections. In a public letter directed to FSLN Secretary General Daniel Ortega, Finance Minister Emilio Pereira suggested that providing the government with a list of those who benefitted unjustly from the piñata "would enormously reduce the uncertainty of those who did not abuse the law." The Sandinista National Directorate simply claimed it did not have that information. The Sandinista piñata continues to be the centerpiece of Nicaragua's property conflict and a primary target of the far right and the former property owners who are demanding restitution of "their" assets.
The property debate is one of the most important and conflictive topics in Nicaragua today; key matters like foreign investment and even foreign aid depend on its prompt resolution. Due to the different interests at play and the vast quantity of information on the subject, as well as unclear, multifarious administrative and legal processes, it is also one of the most difficult to understand.
Who is actually occupying the houses and lands being reclaimed by former owners: those who benefited from the piñata, or the poor? Who is losing their property and how? Is the government fulfilling its agreement to respect property distributed before the February 25, 1990 elections? Has it returned property to "Somocistas" the former dictator's family and allies reneging on its agreement not to do so? Why has the current government's Territorial Planning Office, which is reviewing the thousands of homes and lots given out under the Sandinista government's urban property reform, rejected so many cases? Might the poor lose their homes and lands?
The questions are almost endless. This article will address the issues of rural land and agricultural enterprises and urban houses and lots, leaving the complex issue of the privatization of state industrial and commercial enterprises for a future article.
A BRIEF HISTORYThe Sandinista Agrarian and Urban Reforms. According to Jaime Wheelock Román, former Minister of Agricultural Development and Agrarian Reform (MIDINRA), the Sandinista agrarian reform distributed approximately 6,000 properties for a total of some 5.25 million acres. (See box below for a summary of confiscation decrees and other means by which the Sandinista government acquired property.) The majority of these lands (about 4,025,000 acres) were distributed to some 80,000 families, who were given agrarian reform titles allowing them to use but not sell the land. With the remaining 1,225,000 acres, says Wheelock, the government formed the agricultural corporations comprising the Area of Peoples' Property (APP), of which some 525,000 acres were later abandoned due to the counterrevolutionary war.
Wheelock's 1,225,000 acre figure for the total APP area contrasts significantly with MIDINRA's own 1988 statistics, which reported it at almost 1,659,350 acres. Some of this difference but not all can be explained by property returns to former owners during the last two years of the Sandinista government.
In urban areas, Wheelock reports that the Sandinista government held some 350 industrial and commercial enterprises and about 7,000 houses and lots, also through confiscation decrees. The government assumed control of the enterprises and, in 1985, began to distribute "use" titles for the houses and lots located in popular barrios (again allowing for use but not sale of the property). The government also distributed thousands of other houses and lots that had not been previously confiscated but were, for example, city or county property.
The Lame Duck Period. During the lame duck period (February 25 April 25, 1990), the outgoing Sandinista goverment passed Law 88, converting all agrarian reform use titles it had distributed over the years into full ownership titles. Laws 85 and 86 respectively transferred the possession of urban houses and lots that were still legally state property to the families occupying them as of February 25. The goal of these three laws was basically to guarantee that the revolutionary government's urban and agrarian reforms could not be readily reversed. The Territorial Planning Office (OOT), set up by the Chamorro government in late 1991, estimates that nationally there are some 11,000 beneficiaries of Law 85 and close to 100,000 of Law 86.
Wheelock states that, in the first four months of 1990, the Sandinista government made 292 new assignations of farmland totaling approximately 88,000 acres. It is likely, however, that this total is much larger: sources from the current Agrarian Reform Institute (INRA) suggest that a greater portion of the more than 400,000 acre difference between the APP in 1988 and the area turned over to the Chamorro government in April 1990 is in the hands of "piñata" beneficiaries. The outgoing government also "sold" numerous luxury homes in its possession, at bargain prices, to party and government officials.
The term piñata generally refers to property abuses committed during the lame duck period. But there are almost as many opinions as individuals as to what constitutes "abuse." For the far right, which defends the principle of private property at least their own to the death, virtually the entire agrarian reform begun by the revolutionary government in 1979 was a "piñata," including the confiscation of the vast Somoza family holdings. For them, then, Laws 85, 86 and 88 are as much a piñata as the post election assignments and sales. At the other extreme are some Sandinistas who blindly defend all new property distributions during the transition period and even suggest that the Sandinista government should have been more generous in its last minute allotments. "For me," one party leader said, "the Sandinista piñata was a beautiful thing, but was too modest.... Even in the worst of cases, I prefer that an abusive Sandinista control a farm rather than a Somocista." He believes that those who criticize the piñata are playing into the hands of enemies of the revolution.
Claims. Some 5,000 to 6,000 claims have been filed by former owners with the Attorney General's office. Of those, according to the Presidency of the Republic, 4,500 (representing some 16,000 cases of urban and rural properties real estate, cattle, stock and vehicles) have been "favorably resolved" by presidential decree. (See box above for a summary of property decrees issued by the current government.) It remains to be seen how many of these favorable resolutions will result in property returns to former owners and which in indemnification, and how the amount of the latter will be calculated. The remaining 1,000 or so cases represent confiscations made under decrees 3 and 38, issued by the revolutionary Council of Government in July 1979 and respectively affecting Somoza's family and allies. Those properties, according to the Chamorro administration, are subject to case by case review.
THE RURAL CONFLICTThe UNO government began its mandate with the intention of returning all state agricultural properties grouped in the APP to their former owners or selling them off to private business interests. Serious conflicts began when, shortly after assuming power, the new government issued Decrees 10 90 and 11 90. The former was the first step in preparing the ground for returning all APP farmlands to their former owners; the latter prepared for the definitive return of all state property, as well as of urban and rural properties not in the APP but in private hands.
Private Property Transfers to the Sandinista Government
* Decrees 3 and 38: Confiscated properties from Somoza, his family, prominent Somocista officials and supporters of the regime.
* Nationalization of the banks: Nationalized interests and shares in agricultural, industrial, commercial and service enterprises, as well as real estate.
* Nationalization of the mines.
* Agrarian reform laws: Expropriated, with indemnification, idle or poorly exploited latifundios, as well as lands under sharecropping and similar systems, through:
1. Decree 329: all properties that had been occupied by peasants as of February 29, 1980.
2. Decree 782: the "Agrarian Reform Law."
3. Law No.14: second Agrarian Reform Law.
* Purchases, exchanges, simple donations or donations assuming debts.
* Bank execution: Confiscated mortgaged properties with unpaid bank debts.
* Decree 760 (the "Absentee Law"): Confiscated properties of people who had left the country without plans to return and whose properties were left either abandoned or decapitalized.
* Decree 1074: Confiscated properties of those found guilty of actions violating order and public security laws.
* Specific confiscation resolutions (only 5 or 6 cases).
Source: Jaime Wheelock Román, Barricada, October 27, 1992.
State Land and the Formation of the APTAt first, the pro Sandinista Farmworkers' Association (ATC), which groups together farmworkers on what were then still APP farms, opposed both the privatization of the farms and their return to former owners. It later accepted the idea of privatization, on the condition that part of the property go to the workers themselves. It also accepted the possibility of returning land to former owners in situations other than those relating to Somocistas or confiscations due to bank debts.
After numerous protests and negotiating rounds, the government finally agreed to privatize a portion of state properties to their workers, a process that has been much less conflictive in the rural portion of the APP than in the urban industrial one. According to Salvador Ramírez, ATC leader in León, agricultural workers received approximately 32% of rural APP properties distributed in the cotton (AGROEXCO), cattle (HATONIC) and coffee (CAFENIC) enterprises (see box below) and will receive a similar percentage in the recently concluded negotiations over the tobacco enterprise (TABANIC).
In the state banana enterprise (BANANIC), since the lands were always privately owned and the state controlled only administration and marketing, the workers negotiated 25% of the latter two; the government also assigned a 1,700 acre farm to the workers through the agrarian reform, as well as a bank loan to convert the land from sugar cane to banana production.
Negotiations over the division of the rice enterprise (NICARROZ) have still not concluded, but it is likely, according to Ramírez, that the workers will receive approximately 30% of the property and machinery. They would be minority shareholders in association with a possible foreign investor, who would buy the other 70%.
These new worker owned properties now comprise the rural Area of Workers' Property (APT), and the ATC is very satisfied with the infrastructure and quality of land obtained. In the three enterprises already redistributed, the workers have one year rental contracts with option to buy, and are currently negotiating the terms of sale. It seems they will receive 7 to 10 year loans, with interest ranging between 6 and 9%, and, in some cases, a one year grace period.
Though there have been no problems with former owners laying claim to the properties in these three enterprises, some lands that the workers won in the negotiations were never handed over. This includes, according to the ATC, six HATONIC ranches and a coffee processing plant, which CORNAP the Chamorro government's entity in charge of administering and privatizing all APP holdings gave to private businesspeople.
The most serious problem facing the APT is economic. On the one hand, international coffee prices are very low, cotton prices have made that crop financially unviable, and beef prices, while better than the other two, are also low. On the other hand, it has been very difficult to procure financing, partly because the workers have only rental contracts instead of titles, and partly because of the contraction of credit for all production, a characteristic of current economic structural adjustment policies.
Management of the APT itself has also been a source of conflict. Many workers complain that the ATC has simply replaced the state as manager, and, though it is called the "Area of Workers' Property," they do not feel they are the owners. An in depth look at this important subject must remain for a future envío article.
In addition to the lands of the agroindustrial enterprises already distributed, the government claims that it has handed out an additional 525,000 acres, for a total of almost 1,230,000 acres. These 525,000 acres largely represent the APP lands that were abandoned during the war and have now mostly been turned over to demobilized members of the counterrevolutionary forces. Official statistics from the Agrarian Reform Institute indicate that former contras have received a total of 987,000 acres. But Rodolfo Ampié, leader of the contra umbrella organization known as the Nicaraguan Resistance, insists that they have received only 716,000 acres out of almost 2 million promised, and that the lands they have received must be shared with squatters and landless peasants. He also complains that much of the land is of marginal quality, and that the majority of beneficiaries have still not received titles and are thus unable to get credit for production.
The "Papelitos" for Property ReturnsWhile the privatization of the rural APP has been moving rather smoothly, the return of lands to former owners has been far more complicated. Decree 11 90, which began the review of all confiscations undertaken by the Sandinista government, created, and continues to create, serious conflicts. Finance Minister Emilio Pereira reports that former owners filed claims on 3,850,000 acres of land 25% of the country's arable total. Of this, 1,430,000 acres were affected by the two anti Somocista decrees, 3 and 38.
Decree 11 90 established that "a resolution to return [property] is a valid title for the full use of ones' goods." It also established that the government would indemnify anyone who received a favorable resolution but whose property could not be returned because it was affected by the agrarian reform, occupied by a cooperative that is fulfilling an economic and social function or by small individual farmers, or because it was distributed by the government to resolve housing problems for people with scarce resources.
Instead of respecting this indemnification provision, former owners used their favorable resolutions popularly known as the Attorney General's "papelitos," ("little papers") to demand the restitution of their properties. Along with their resolution, they would take the police and a court order to vacate the premises the latter granted after presenting the papelito and their old property title to a judge.
Gloria Cortés Téllez, law professor at the National Autonomous University (UNAN) and a specialist on the property issue, says that no judge can issue such an order without a hearing. The property can be legally sequestered or embargoed, but before actually ordering an eviction, the occupant must first be notified about the demand and given the opportunity to respond. The problem, says Cortés, is that many people get confused by the legal process. She cited the case of one woman who went to the courthouse at the specified time but finally went home after never being able to find the correct office. Because she did not appear at the hearing, the judge was forced to declare her in default and issued the eviction order.
Nor is it clear that all judges follow due process. Leaders of the Sandinista National Farmers' and Ranchers' Union (UNAG) claim that many do not. Sometimes former owners whose "property" is presently occupied by a cooperative argue that the cooperative is not fulfilling its "economic and social function" because it is not exploiting the land to its full capacity, thus justifying its return. UNAG leaders say that judges, perhaps for lack of funds, often do not visit the site to check the former owner's claim. They also accuse some judges of accepting bribes. In any case, since agricultural cooperatives receive almost no bank credit given the current government's lack of a credit policy for small and medium producers, it should come as no surprise if they are not producing on their lands at full capacity.
When the Supreme Court declared two articles of Decree 11 90 unconstitutional, the government suspended the activities of the Confiscation Review Commission the entity set up in the Attorney General's Office to review claims and issue its resolutions. But about 1,000 papelitos for the return of all kinds of property had already been issued.
According to the ATC, evictions and attempted evictions throughout the country resulted in 170 people jailed, several wounded and 7 killed among its members alone. The "farms in conflict" lands currently occupied by agricultural workers, demobilized army soldiers or contras and/or the unemployed are, in large part, properties subject to return to a former owner according to the Confiscation Review Commission's resolution.
Although the government had promised that all the resolutions issued before the Commission's suspension would be reviewed, CORNAP president Dayton Caldera said more recently that the papelitos are all valid, but do not authorize the eviction of the current occupant. ATC leaders, however, report that eviction attempts have again increased throughout rural Nicaragua since the resolutions were declared valid.
The "Farms in Conflict"When the ATC negotiated with CORNAP for the privatization of state property to the workers, it did not always negotiate first with the workers themselves. In order to obtain certain farms, it accepted the return of others that the workers were not always willing to give up. And while some ATC leaders allege that current farm occupations took place after the former owners failed to comply with certain agreements signed with the workers, the workers themselves say that they took over the farms when they became aware of the decision to return them.
According to ATC figures, the Attorney General's Office issued orders for the return of 205 farms but has only been able to return 154 in practice. In addition to the occupation of these farms subject to return, another 20 or so have also been occupied, for a total of at least 70. They have been taken over not only by their workers but also by unemployed farmworkers and former soldiers from both armies. National ATC leader José Adán Rivera estimates some 60,000 acres in conflict, affecting about 4,000 families.
ATC directors calculate that on 33 of these 70 occupied, mainly in Regions II (León Chinandega) and VI (Matagalpa Jinotega), traditional workers have allied with unemployed farmworkers to prevent the farms from being returned to former owners. An additional 13 were taken by former soldiers working in some form of alliance with ATC farmworkers. (In an unknown number of others, not included in the ATC's total, the occupants are not working with the ATC). Finally, another 22 to 25 state farms are in the process of privatization, mainly in Regions IV (Granada Rivas) and V (Boaco Chontales), where the government agreed to give individual plots to the former workers through the agrarian reform and has not done so.
The most complicated "farms in conflict" for the ATC are the first 33. Former owners of all these properties have their papelitos, though in some cases the workers have their own letter of possession, officially issued by the current government's Agrarian Reform. In the Chinandega municipality known as Villa 15 de Julio alone, at least 5 farms are in this predicament. According to the ATC, workers on these "returned" farms have been able to produce efficiently. ATC León leader Salvador Ramírez reports that at La Pistola farm, for example, the workers cultivated sesame in 1991 and, without outside financing, obtained a yield of 1,000 pounds per acre, much higher than the 600 pounds/acre of many large landowners.
The workers on these 33 farms suffered between 6 and 12 evictions or attempted evictions in 1991, before Decree 11 90 was declared partially unconstitutional. In some cases, evictions have continued. ATC leaders are concerned that they will intensify again, now that the government has declared the Attorney General's papelitos valid. The ATC is willing to negotiate and is seeking the support of "friendly lawyers" to initiate legal proceedings in the workers' defense; but it does not eliminate the possibility of continuing farm takeovers, "because we already feel the wave coming again."
Some cases are not negotiable. The ATC has a list of 17 farms that have already been "returned" to Somocistas confiscated under Sandinista Decrees 3 and 38 almost all are currently occupied. CORNAP president Dayton Caldera has stated publicly that these returns to Somocistas, sanctioned by the Attorney General's Review Commission, cannot be overturned because, constitutionally, the law cannot be "retroactive." He said he did not know what criteria the Commission used to decide who was or was not a "Somocista."
He also said he did not know what criteria the newly established Review Commission would use (see Chamorro government decrees in box above), now that it is in charge of reviewing the confiscations carried out under Decrees 3 and 38. (Two members of the 3 person commission had still not been named as this issue of envío went to press.)
It is likely, however, that such a "review" will favor numerous Somocistas. Among other things, personal friendships and family ties between confiscated Somocistas and current government officials will play a significant role. The government will also be tempted to use this issue to win points with the far right in Nicaragua and also in the United States. According to Republican Senator Jesse Helms, who was behind the several month freeze on US aid to Nicaragua last year, all properties of all US citizens should be returned no ifs, ands or buts. The controversial Helms report called Nicaragua Today explicitly states that there is no difference between a US citizen born in the United States and one who nationalized later, as many Somocistas did after the overthrow of the Somoza dictatorship in 1979.
Private Lands: Universal InsecurityWhile some farmworkers are fighting for land, and all are fighting to survive, what is happening with cooperatives and small and medium farmers? Is it true that former owners are reclaiming land in the hands of the poor?
According to UNAG, 14 cooperatives and 57 individual farmers have been evicted from a total of some 58,000 acres by former owners or other intruders. Almost all of these farms are located in the mountainous zones of Ocotal, Chinandega, Jinotega, Wiwilí, Yalí, Pantasma, Bocay and El Cuá. Yet, while UNAG leaders call the 57 individual producers "small and medium," almost all the farms are larger than 525 acres, and the majority are larger than 875 acres, a size the Sandinista government officially classified as "large." These are not, therefore, UNAG's poorest members.
Sinforiano Cáseres, a member of UNAG's national board and vice president of the National Federation of Cooperatives (FENACOOP), adds that the 57 individual farms were not returned to former owners by resolution of the Attorney General's Office, but were invaded by former contras, former Sandinista army members or the old owners' farmworkers. Some have even been taken for revenge or political rivalries. "There are all kinds of situations, and each case is different," says Cáseres.
Many of the 14 cooperatives were returned to former owners with the Attorney General's papelitos, and these cooperatives do represent poor peasants. These are the situations in which former owners, in addition to using various other legal tactics (See Table 4), have argued that the cooperatives are not "fulfilling their economic and social function."
There is not always even an economic justification for this claim that the property is not producing to capacity. Cáseres cited an example of the attempted eviction of a very successful cooperative in La Cumplida, Jinotega, whose peasant members had been able to double production and build housing and a childcare center. According to Cáseres, the region's vice minister of government actually went to that cooperative, accompanied by INRA director Boanerges Matus, to "recommend" that the members leave making it clear that if they did not go peacefully, they would be forcefully evicted. In that case UNAG intervened to warn the government that the property was not negotiable.
Everyone is fully aware that the land titling situation for cooperative and individual properties is virtual chaos. Cáseres briefly summarized the current gamut of titles and other forms of land "ownership" in the countryside:
* Titles issued by and registered under the Sandinista government.
* Titles issued by the Sandinista government but never registered.
* Titles registered during the lame duck period (including those who occupied their land before the February 1990 elections and those who were awarded land in the piñata).
* Titles issued by the Sandinista government and revoked by the current government.
* Titles issued by the current government.
* Certificates of possession issued by the current government.
* Rental contracts or certificates issued by the Sandinista government.
* De facto possession (without papers).
Yet property security appears unrelated to its legal status. Among the 57 individual producers who have lost their land, says Cáseres, some have registered titles the legal situation that would appear to be the most secure. According to a study carried out by David Stanfield of the University of Wisconsin's Land Tenure Center, some 172,000 families in rural Nicaragua have property that is in a vulnerable position due to its insecure legal status.
Rich vs. PoorThe "property problem" is not nearly as big for the wealthy as it is for the poor, but it is the wealthy who have dominated the debate and set its terms. Cáseres describes three kinds of rural property owners: 1) the "untouchables," primarily the bourgeoisie linked to the government (Cabinet ministers, the Cuadras, the Lacayos, Army General Humberto Ortega and high level army officials; 2) the "adopted children," or rightwing bourgeoisie who have enough institutional and financial clout to get the attention of the media, human rights organizations, etc., such as members of the High Council of Private Enterprise (COSEP); and 3) the "illegitimate children," such as UNAG's 14 cooperatives and 57 individual producers, who have lost their land without anyone noticing or at least not anyone with enough power.
The first two kinds of property owners are the ones that currently define the property debate. But their conflicts are really with each other: between people like Arges Sequeira, the recently assassinated president of the Association of Confiscated Property Owners, and the "fat cats" of the Sandinista piñata, such as Sandinista Popular Army (EPS) colonels among others. It can even be said that the debate has been manipulated so as to conceal the real conflict. The most common situation is not one in which a former Somocista owner is threatening to take away a poor peasant's 5 acre parcel. Even cases in which former owners are threatening peasant cooperatives "can be counted on one hand," says Cáseres.
Nevertheless, the property problem for small and medium farmers is critical, because it relates to their very survival. It is even more serious for landless peasants, who have disappeared from the debate entirely. "The property problem is one of people with no economic potential, no potential to invest, who are seen simply as a pool of workers for others," says Cáseres.
While the government virtually pardoned the debts of large cotton farmers, a total of some $40 million, Cáseres points out that it left standing the debts of 36,000 small and medium coffee and basic grains producers, for a much smaller total. The bank then declared these farmers ineligible for further credit.
Without credit and with bank debts, under threat of losing their land to the bank, many small farmers and cooperatives are selling their land to the far more stable latifundistas (large plantation owners). It is reported that even Minister of Agriculture Roberto Rondón, one of the country's largest landowners, is taking advantage of this crisis to buy the lands of small farmers neighboring his already enormous estates.
It also appears that some FSLN leaders are more concerned with protecting and defending piñata beneficiaries than with the peasantry. Cáseres pointed out the economic potential, for example, of an economic as opposed to political alliance among the FSLN's commercial enterprises, the APT's agroindustries and small and medium producers. But many new Sandinista businesses are undermining domestic production, just like non Sandinista businesses. Cáseres gave the example of the Sandinista owned Santo Domingo company, which imports basic grains from other Central American countries a policy that benefits its owners but is destroying Nicaragua's small farmers.
The Piñata: Not Just For SandinistasCáseres aptly described a fundamental difference between the current and previous governments. Under the Sandinistas, he said, government officials believed they would be in power forever; the piñata arose when the FSLN lost the elections and those officials realized they would suddenly lose the numerous perks of their otherwise low paying jobs. Current government bureaucrats, on the contrary, are fully aware that the results of the 1996 elections are quite unpredictable; they, therefore, are undertaking their own piñata from their present positions of power. No one wants to leave office empty handed.
Though perhaps current officials do not have the power to assign themselves thousands of acres of land, there are those who accept bribes in return for handing out titles and others who even negotiate small parcels for themselves. One typical example occurred recently near Las Colinas, just outside the capital: an INRA official promised a cooperative its land title in return for 3.5 acres. He even signed his name to the deal, though the papers make it appear that the plot will be INRA property and not necessarily his own.
There are also officials who use their position to benefit their own businesses. In León, for example, farmers who received one year certificates of possession last year are being required to have their land surveyed in order to renew their "titles." The survey, however, will only be considered valid if carried out by a certain company which charges the equivalent of $2.60 per acre; UNAG's survey company charges only $.85.
The fact that the piñata continues, though it is others that are benefitting, does not minimize the abuses committed by Sandinistas during the transition period. The fundamental problem appears to be the question of what constitutes "abuse." We have already mentioned the extreme positions at both ends of the spectrum. But more reasonable positions seek to clarify who appropriated one or several properties during the lame duck period for personal gain instead of need. Minister Pereira suggested the following criteria for the review of rural property given out during the transition: the size of the farm should coincide with the needs of the family being maintained by it, and the owner must be working the land and have no other source of income.
It remains to be seen how the FSLN National Directorate will finally decide to address this issue. To date it has remained silent, giving the clear impression that it prefers this leader's perspective to confronting an ethical problem so serious that it has demoralized the party base.
There is nothing particularly heartening about taking land from one latifundista and giving it to another. It is also likely that lands assigned in the piñata were largely those appropriated from Somocistas under Decrees 3 and 38, which should not be returned to their former owners under any circumstances. Cáseres suggests that these lands be used to form a land bank in order to resolve the problems of landless peasants and other small farmers, expanding the agrarian reform and thus addressing the real property problem in the countryside. The OOT is to begin early this year to review the cases of rural lands assigned during the transition period.
The Rural Crisis: A SummaryWhile it is the bourgeoisie that dominates the property debate, the real crisis is being faced by the poor majority. This very important sector of the Nicaraguan population must be heard. This means expanding the agrarian reform and responding to the needs of small peasant farmers, unemployed farmworkers, those who have been historically landless and/or are former members of the contra and Sandinista armies.
INRA's budget for 1993, according to director Boanerges Matus, will be just over $1 million, barely enough for the institution's operating expenses. And it is INRA that has the responsibility of responding to the needs of small and medium farmers.
All peasant farmers need definitive land security, respect for land provided to them with or without titles under the Sandinista government and legal recognition of the validity of the agrarian reform itself. Attention must be given to indemnifying cooperative members and individual farmers who have lost their land, with the same regard given to those confiscated under the Sandinista government. And property returns to former owners must be stopped where those lands are occupied by cooperatives or poor farmers.
As for the former APP lands, the property problem of workers occupying the "farms in conflict" must be resolved with urgentcy. Negotiations should be undertaken to legalize those lands. No property should be returned to former owners when the workers have a certificate of possession, when it was confiscated due to bank debts or under Decrees 3 or 38, or when the former owner was already indemnified. In all other situations that must be negotiated, the workers rights must be respected in all cases.
After the definitive legalization of rural properties, the next key problem for all is economic: the lack of jobs, credit or a government backed agricultural development plan that includes small and medium producers and the new APT sector as a central force. It does no good to protect legal rights if economic rights are not also protected. A legal title should not be a means by which to sell one's land in desperation but to cultivate it with the security of ownership.
THE URBAN CONFLICTWhile the review of agrarian reform beneficiaries protected by Law 88 has not yet begun, the review process for urban property is far more advanced. The OOT was established to review the cases of all people benefitting from Laws 85 and 86. The stipulated time period in which to submit documents in defense of houses under Law 85 concluded at the end of September and for lots protected under Law 86 at the end of February. (The review of lots was barely underway when this article was written.) A certificate of approval from the OOT presumably means that the beneficiary can then register as the owner of the house or lot and will receive legal title to the property.
The OOT received a total of 9,373 cases covered by Law 85, and expected to receive almost 100,000 for Law 86. According to OOT director Hortensia Aldana, another 1,700 housing beneficiaries have registered their homes but not submitted papers to undergo OOT review. Law 85 establishes that these people are automatically considered beneficiaries "in bad faith," and will be reported to the Attorney General's Office.
Only Half ApprovedAs of the first week of November, the OOT had reviewed 2,500 Law 85 cases and approved only a few more than half. Why such a low approval rate? Could it be that former owners are pressuring the OOT to massively issue denials? Is it possible that all those people who have received denials will lose their homes?
To reclaim a house, previous owners must solicit review by the Attorney General's Confiscation Review Commission as specified by Decree 11 90, but they may also participate in the OOT review process. In that case, says Aldana, their role must be to provide substantiated evidence that the current occupant (and Law 85 beneficiary) does not fulfill the necessary requirements for a favorable resolution. "The [former owner] serves to shed light on the analysis of the documents presented by the beneficiary," says Aldana.
According to the law, the review of each beneficiary is based solely on that person's capacity to fulfill certain requirements; the former owner must, therefore, prove that he or she does not fulfill them. Among these requirements are Nicaraguan nationality; occupation of the house currently and prior to February 25, 1990; proof that the nuclear family does not own another home and that the house was under state dominion, possession or administration; and proof of how it was transferred into the beneficiary's possession. If all these are fulfilled, the current occupant will receive a favorable resolution, which should allow that person to register as the legal owner.
The OOT has established numerous different ways, says Aldana, to meet each of these criteria, but Communal Movement leaders, as well as those of the recently formed movement in defense of Law 85 beneficiaries, claim that the OOT, instead of asking for one document to prove each requirement, asks for several. Given the lack of custom in Nicaragua of maintaining updated and accurate legal documentation, it is not surprising that beneficiaries face great difficulty meeting all the criteria.
The Role of Former Owners?It is difficult to calculate the weight that former owners have on the review process. According to Aldana, only 1,500 of the more than 9,000 houses being reviewed are reclaimed by previous owners. And, she claims, former owners do not have their information well documented cannot affect the OOT's decision. While this may be true, there is evidence that former owners may have more influence on the process than they should. Aldana herself stated that "we cannot issue a positive resolution to one party when there is a conflict between two people. That situation must be resolved directly by the courts." Though Aldana was referring to conflicts between family members or separated couples, her statement indicates that a former owner only need raise enough doubt about the beneficiary's ability to meet the requirements, whether the latter has sufficient proof or not, in order for the OOT to back off the case.
It is also worth noting that not one of the five people who visited Aldana's office while envío awaited an interview was a housing beneficiary all were former owners or their lawyers. This indicates, at a minimum, that previous owners appear more at home in the OOT director's office than do Law 85 and 86 beneficiaries. One of those claimants told envío that his argument against the current occupant was that his home was unjustly confiscated, but, according to Law 85, this is irrelevant to the current occupant's rights. Aldana also assured us that this would not affect the OOT's decision, "as long as the beneficiary meets all the criteria and demonstrates that to us."
It is likely that those whose houses were confiscated largely from the wealthy sectors would be reclaiming large ones rather than those classified as "popular" (under 100 square meters). In the first statistics available on OOT approvals as related to housing size, it is clear that the portion of denials rises as does the size of the house under consideration. Aldana provided envío with the following breakdown of the first 916 cases reviewed:
Property Under the Chamorro Government
May 1990: The new government issued Decrees 10 90 and 11 90. The former allows the provisional return, through temporary rental, to former owners of properties affected by the agrarian reform that are under state administration. The latter created the National Confiscation Review Commission in the Attorney General's office, to review confiscations undertaken by the Sandinista government upon the petition of former owners. Though this decree included a provision to protect current occupants who are agrarian reform beneficiaries or who are poor, this was not respected by the Commission in its decisions.
October 1990: In the first Concertación accords, the new Chamorro government agreed "to respect property distributed to people individually or in association before February 25, 1990." It also agreed to compensate those "unjustly expropriated or confiscated," but without defining what constitutes "unjust."
May 1991: The Supreme Court declared two articles of Decree 11 90 unconstitutional; in response, the President suspended the Confiscation Review Commission with Decree 23 91 in June.
August 1991: In the second round of Concertación negotiations, the signers of the final agreement (the far right did not sign) reiterated what had been agreed to in the first round: "[Property is guaranteed] for individual or cooperative producers with agrarian reform titles, guarantees or authorizations issued prior to February 25, 1990." It was also established that state lands in cotton, coffee and cattle corporations would be divided among former soldiers of the Resistance and the Sandinista army, workers and former owners, and that former owners whose property could not be returned would be indemnified with privatization bonds. Also in August, the Territorial Planning Office (OOT) was created by Decree 35 91, to review the cases of all those benefited by Laws 85 and 86, which transferred property ownership to occupants of state owned urban houses and lots. With a favorable resolution from the OOT, current occupants can register their homes in the official Registry and thus get legal title, if no claim is being made by a former owner. If one is, the case must be resolved through the courts.
September 1992: The government issued Decrees 46 92, 47 92 and 48 92 which, among other things, created an Attorney General's Office for Property and revived the National Review Commission through which the Attorney General reviews confiscations, this time according to constitutional guidelines. This commission will consist of three members, presided by the new Attorney General for Property. A favorable resolution from the Attorney General authorizes the return of a property only if it is state owned. If it is in private hands, his office authorizes indemnification or gives the former owner the right (and the ammunition) to launch a battle for the property through the courts.Through Presidential Accord 248 92, also issued in September, the President instructed the new commission to favorably resolve "all claims presented to the Attorney General," with the exception of those involving confiscations made under Decrees 3 and 38. The commission will make recommendations to the state regarding property returns vs. indemnification on the "approved" cases, and will review the 3 and 38 confiscations case by case.
The new decrees also broadened the OOT's mandate to include review "of rural land acquisitions" made during the 1990 lame duck period.
October 1992: The government issued Decrees 51 92 and 56 92, establishing the indemnification system for those former owners with favorable claims whose properties cannot be returned. The government will issue 20 year bonds at 3% interest which will maintain their dollar value and can be used to purchase shares in some 400 state enterprises subject to privatization. Those enterprises include the telephone, water and electric companies, the Montelimar beach resort, the cement company and the former Bank of America building. The first bond issue will be worth $100 million, and the total cost of indemnification is estimated at $150 to $200 million.
This could show that former owners do, in fact, influence the OOT's decisions. But it could also show something else: that the houses given out in the Sandinista piñata were the most luxurious ones, and current occupants are unable to meet Law 85 requirements precisely because the law does not cover such cases. The truth is most likely a combination of the two.
People who received a house larger than 100 quare meters under Law 85 face an additional requirement. When they registered their home, they had to present a sworn declaration of its size. In some cases, says Aldana, the OOT, upon inspection, has found the house to be larger than stated. These people are denied a certificate of approval.
Even when housing beneficiaries meet all the requirements, the OOT only authorizes a special certificate of review that does not allow the registrant full disposition of the house. This certificate, says Aldana, means "they cannot sell, rent, bequeath, or do absolutely anything" with the house until they cancel 100% of its legal value at the appropriate government office.
What About the Poor?The most disconcerting thing about the above statistics is that the poor are also receiving myriad denials almost half are being told they are not protected by the law. Why are so many being denied? Will these people lose their homes?
Aldana reports that the main reason so many cases have been rejected is that occupants cannot prove that they were living in the house prior to February 25, 1990. Others have been denied for one of the following reasons: 1) the beneficiary received more than one house; 2) the beneficiary cannot prove that the state owned the house or how it was transferred; 3) the beneficiary is a foreigner who had not been nationalized as of February 25; or 4) the house is rented to a third party. There are also some 500 cases of individuals who purchased homes from a Law 85 beneficiary and cannot now present that person's documents.
The OOT was unable to provide information linking denials with housing size, or with the existence of a claim by the former owner. But, in the case of poor peoples' housing, the primary problem is likely lack of documentation. It is doubtful that many houses under 100 square meters were acquired illicitly through the piñata, or are being reclaimed by wealthy homeowners confiscated in the 1980s. A number of people who live in neighborhoods built by the Sandinista government where there is no former owner to make a demand were never concerned with keeping their documentation in order. What will happen in these cases?
When there is no claim by a former owner, the conflict must be resolved between the current occupant and the government itself. A beneficiary denied by the OOT has two possibilities for appeal: the first in the OOT itself, and the second in the Ministry of Finances. After that, the case goes to the Attorney General's office. "The law itself," says Aldana, "establishes that when abuses were committed, the Attorney General will be in charge of returning the house to the original owner or to the state." This supposes that lack of documentation necessarily means "abuse", which represents a serious danger to the poor even when there is no dispute with a previous owner. Communal Movement leader Enrique Picado accuses the housing office BAVINIC of seeking to create a "fund" of houses and believes that the current government will try to evict current occupants with this goal in mind.
Are the OOT's requirements too strict? The government should be convinced, at least in the cases of houses under 100 square meters, whether or not there is a former owner's claim, to give current occupants legal title if they do not own another house. This would correspond to the spirit of Law 85, which states, "The state will guarantee property rights to all Nicaraguans who, as of February 25, 1990, occupied by assignment, possession, rental or any form of tenancy houses that were the property of the state or its institutions."
If the law says only that its beneficiaries must be occupying the house, why should these beneficiaries have the responsibility of proving the transfer of possession from the state to themselves or that the house was under the State's jurisdiction? In at least one case the OOT denied a beneficiary because the state's documentation erroneously showed the registration number of the next door neighbor's house instead of the one that had been confiscated. Why should the beneficiary lose her home because of this administrative error?
Perhaps Minister of Finances Pereira was speaking in earnest when he suggested to Sandinista leaders that the problem of legalizing all properties could be resolved much more quickly if the FSLN facilitated information about the piñata. Whether or not this request was made in good faith, it is clear that the OOT is denying many legitimate beneficiaries their certificates of approval in its attempt to ferret out abusers. And it is possible that the "sacrifice" of piñata beneficiaries would serve to protect those who have fewer resources and whose legitimate property rights are being challenged.
Denials, Approvals and Former OwnersA denial from the OOT does not automatically mean that a house will be returned to a former owner or to the state, nor does its approval necessarily guarantee that the current occupant will get legal title. The OOT is only an administrative agency, and legal decisions, by law, must be made by the appropriate legal authority.
Beneficiaries with a favorable resolution from the OOT and no dispute with a former owner can register their houses and obtain legal title without further ado. Under any other circumstances there will most likely be a legal battle, either in the courts if a former owner is making a claim, no matter the kind of resolution the current occupant received, or in the Attorney General's office, as mentioned earlier, if the former owner was the state and the occupant received a denial.
All former owners making claims to the Attorney General's Confiscation Review Commission, with the exception of those confiscated under Decrees 3 and 38, automatically received favorable resolutions under Presidential Decree 248 92, which gives them the right to indemnification for their lost property. But all also have the right to fight for the restitution of their property through the courts. Lawyers believe that a favorable resolution from the Attorney General for the former owner, combined with a denial from the OOT for the current occupant, will result in a court ruling to restore the property to the former owner.
But even when the OOT issues a favorable resolution to the current occupant, there is no guarantee that she or he will not lose the property. Though the OOT's ruling is supposed to allow beneficiaries to register their home in their own name, they may find when they arrive at the Registry that the former owner was already there an "annotation" on the case at the Registry means that an "appeal" hearing must be held to resolve the conflict. Although, according to law professor Gloria Cortés Téllez, the court should rule in favor of the current occupant, legal battles tend to favor the party with greater resources.
Those who have received OOT rejections are organizing to defend themselves. Among other things, they are forming a network of lawyers who, at low or no cost, can help face the former owners' advantage.
WHOSE PROPERTY RIGHTS?Both right and left believe firmly in "property rights" but have very different criteria about who should be granted those rights. Today, however, positions once seen as "communist" have become widely accepted by more moderate groups, while extreme right positions such as those of Nicaragua's far right or Jesse Helms are losing ground.
The First Owner is the Lawful OneOscar Herdocia Lacayo, vice president of the rightwing Permanent Commission on Human Rights (CPDH), argues that the right to property is an "essential human right" and that the law is the "fundamental basis of civilization." He accuses the FSLN of using property distribution as a pretext for enriching its leaders, not only in the transition period but during its entire government. According to Herdocia, the first title is the legal title, and those who expropriated the properties of others should be tried for their "crime" in a court of law.
The right to property, he says, is "supranational and above Constitutions," and he insists that all property should be returned to those who were confiscated. Not even the confiscations of Somocista properties were legal, Herdocia claims, and thus there is no legal justification for not returning them. He suggests that an "arrangement" be made with the poor, indemnifying them for properties they must return, and rejects the idea of instead indemnifying those who were confiscated.
This is also the position of the Association of Confiscated Property Owners in Nicaragua and of Senator Helms. The Helms report Nicaragua Today refers to all properties confiscated by the Sandinista government as "stolen property" and concludes that "the property issue will not be resolved until the Nicaraguan government returns all the confiscated houses, businesses and lands of American and Nicaraguan citizens...."
If there are doubts as to the far right's position on the workers' and peasants' right to property, one has only to hear the words of Mario Alegría, COSEP legal adviser and director of the Institute of Economic and Social Investment of Private Enterprise (INISEP). We need a national dialogue, says Alegría, "among those who have political and economic power, and not those of a very low developmental level, since they do not have the capacity to make decisions."
The Justice of Agrarian ReformThose who defend agrarian reform could just as easily argue that property is an "essential human right" and above Constitutions, but they would also argue that there is a difference between civil law and the right to freedom and equality. Says Gerald Torres, professor of Law at the University of Minnesota, "Equality is a function of liberty and not the reverse. The legal justification for a better distribution of land is that it supports greater liberty."
For the vast majority, especially in Nicaragua, there is little doubt about the justice of agrarian reform. To show that this perspective is no longer seen as radical, Torres cited several examples from the United States itself. In 1941, the US Supreme Court ratified the decision to turn over a sugarcane plantation to Puerto Rican farmers who had occupied the land. In 1987, the Supreme Court ratified the right of a group of renters in Hawaii, where almost all the land is owned by a handful of families, to force the owner to sell them the property. Even the Agency for International Development (AID), not known for its radical positions, promoted agrarian reform in El Salvador during the most conflictive war years.
The Poor (Should) Come FirstIn the midst of this complex panorama, it is important not to forget that the property issue is one of social justice, more for the poor than for the rich. The debate in Nicaragua is dominated first by those whose properties were confiscated, who have more power and a louder voice than the poor, and second by those, also with power and voice, who have manipulated the hopes of the poor to hide their own interests as piñata beneficiaries.
But the key issue that must again resurface is that of the poor. Whether or not protected by Laws 85, 86 and 88, cooperatives, poor peasants and the occupants of modest urban homes have a right to their property, and their demands are just. These people are the most vulnerable. The urban and rural poor urgently need their land and houses legalized, as well as credit and an economic plan that works in their benefit.
There are others who are not poor but are also just beneficiaries of these three property laws: those who occupied their property prior to February 25, 1990. If they have to pay the value of their home in order to legalize it, then the government should use this income to establish a fund for the construction of popular housing. And if the OOT establishes a similar procedure in the review of rural land beneficiaries under Law 88, a fund could also be established to purchase land that could then be used to expand the agrarian reform. The property problem in Nicaragua will not be solved until it is solved for the poor majority.
"Tricks" of the Legal Process
Former owners are using many legal "tricks" to reclaim property that once was theirs, completely outside of the OOT process. In the city of León alone, there have been some 170 cases of this kind of legal claim. According to Gloria Cortés Téllez, law professor at the National University in león, a former Somoza vice president is included among the claimants it may be that Somocistas have better luck with this kind of process than with the Attorney General and the OOT.
The advantage is that these "tricks" take the current occupant by surprise, and generally the former owners have greater resources and are more familiar with the legal system. Nonetheless, if the current occupant is able to carry out a legal battle in these cases, he or she is likely to win.
One of the legal loopholes that allows for such tricks is a measure called "precarious accommodation," in which the former owner can claim that he or she "lent" the property to the current occupant who now refuses to return it. Since the burden of proof is on the former owner, the current occupant can win, if not intimidated by the process. Other former owners have even asked for the title to be annulled under a process called ""cleaning the registry."
In any legal process, the other party has the right to fight back and both are presumably equal before the law, but the reality is that the person with fewer resources is often the loser. If the current occupant simply fails to respond to the legal claim, for example, the judge is forced to declare him or her in default and rule in favor of the claimant.
UNAG leader Sinforiano Cáseres reports that many such tricky cases in rural areas have resulted in a negotiated settlement in which the land is divided between the former owner and the cooperative or individual farmer. This kind of arrangement puts the former owner in an ideal position to buy the rest of the property parcel by parcel probably at bargain prices from cooperatives, agricultural workers or peasants, as they accumulate bank debts or otherwise find themselves in a desperate situation.
Given the numerous legal loopholes that allow such "tricks" to be played on current occupants, a network of "friendly" lawyers is essential. The government should also take on the responsibility of guaranteeing that these citizens' rights are protected it could form a special team of "public defenders," for example, paid by the state, to attend to low income groups until the property problem is resolved once and for all.
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