The Evolution of Customary Land Rights Policy in Africa

The concept of land tenure security

Generally, land governance systems define power and gender relations, social status and prestige attached to land, decision making with respect to access to land, changes in use of land, conflict and dispute resolution, and other associated decisions on land. All types of land tenure -be they customary, freehold or state owned, can be quite secure and can also equally be insecure depending on the attributes contained in four sets of rights and especially how these are administered. Land tenure security can generally be defined as the certainty of continuous use and enjoyment of land rights, and is associated with the “basket” of four sets of rights defining all types of tenure: 1) Use rights: rights to grow crops, trees, keep and graze animals, make permanent improvements, harvest trees and fruits, bury the dead, etc.; 2) Transfer rights: rights to sell, give, mortgage, lease, rent or bequeath land; 3) Exclusion rights: rights to exclude (and/or include) others from enjoying the same use rights; and 4) Enforcement rights: refer to the legal, institutional and administrative provisions to guarantee use, transfer, and exclusion rights. All tenure systems in the world define these 4 groups of rights that determine tenure security. So it does not really matter what the tenure type is, if the various rights under each group are clear and enforceable in law and in administration, then the tenure will be secure.

The concept of land administration

On the basis of who enjoys the defined rights, then all tenure systems can be grouped into 4 types: a) open access; b) group/community; c) freehold/private; and d) state or public. When statutory law defines the land rights, and the land category types, then government/local government administers them. When customary law defines these, then these are administered by traditional leadership structures. On this basis Migot-Adholla et al (1991) have argued that indigenous African land-rights systems do not necessarily conflict with Western property rights systems –each defines the same set of rights, and each developed time-tested administrative systems. Holding exclusive-use rights in traditional tenure systems can be as secure as private property rights in Western industrialised countries. There is no tenure system that is good or bad, right or wrong. Most important is a tenure system that is secure, appropriate, and able to facilitate the needs of a community or society. That is the reason why land administration systems for the enforcement rights of land tenure are ultimately the most crucial, irrespective of type of tenure.

The evolving efforts in reforming customary tenure in Africa

African governments are shifting emphasis from trying to replace “customary” with “modern” tenure systems and increasingly recognising that land policies and laws must build on local practice. Moreover customary tenure systems are increasingly evolving in response to demographic growth, urbanisation, livelihood diversification, and cultural change. In Africa practically every country’s statutory law is derived from various European colonial laws (imposed law, or given law). The debate often loses sight of the fact that ‘customary tenure’ is part or sub-set of a specific customary law system, which in turn is part of traditional civilization, and belief/value system or ‘world-view’ (Wells, 2015). The debate, therefore, that seeks to empower rural communities, women and youth with greater land rights and ‘legally’ secured tenure is quite noble and necessary. The challenge is in imposing given law on customary law as the basis of reform, rather than reforms based on own evolutionary path. This also explains why some scholars are pushing the issue of ‘legal pluralism’ into the centre of the debate (McAuslan, 2003). Additional resistance to wholesale abolition of customary law and customary tenure is also derived from fears that the consequences go beyond land rights and agricultural transformation, and that this is eroding whatever remains as African cultural heritage and identity. Land is also generally regarded as the mother of other resources, and therefore remains an important factor in the construction of social identity, the organisation of religious life and the production and reproduction of culture (AU/AfDB/ECA, 2010).

The economics of reforms in customary tenure

The big issue that is driving debate on the continent is if and how economic potential can be released by reforms in customary tenure. The literature on such reforms in Africa has generally been inconclusive about attributing major economic recovery of customary tenure mainly to a land tenure reform. It is also rather unrealistic to expect that abolishing and/or reforming customary tenure[1] will resolve legacy issues of economic exclusion, poor infrastructure and remoteness from main markets, and the general inadequacy of public sector investment into these poor communities. Moreover, the extent to which envisaged legal reform will unlock financial and economic value of land is also an issue that does not have much evidence of success in the international experience with customary tenure. It would appear that most attempts to reform aim for the homogenization of national land laws so as to align all land with mortgage law. Customary land rights—however well protected and secured—don’t appear to ever fulfil the requirements of commercial banks (McAuslan, 2003). “The use of land as security and an engine of wealth creation in Africa will continue to be problematic until more creative mortgage systems and laws are applied…. It is therefore not “customary tenure” but “conservative state bureaucracy” and private mortgage practices and attitudes that need fundamental reform” (McAuslan, 2003 pp9). Post-independence government policies have tended to favour a centralised, top-down approach in tenure reforms, assuming it is the most effective in ensuring productive exploitation. Lack of and inadequate state capacity and enforcement, however, made centralised efforts to manage the commons ineffective and generally led to de facto open access regimes (Hilhorst, 1999). As the debate on the economics of African customary systems moves on, it is worth interrogating the Asian experience, especially India, China, S. Korea, Vietnam and so on, to learn more about support interventions to smallholder farmers with limited propensity to reform land tenure based on impose legal systems.

Good practice with registration of customary land

It would appear from the literature that although reforms are needed (including formal regulation and registration in some instances)[2]: Governments should avoid out-dated colonially‐derived systems that turn communities into squatters on their own lands. A critical role for the modern state is incorporating customary land tenure into national law, so that it is adaptable, dynamic and legitimate. Legitimate solution lies in protecting and strengthening customary land tenure and community governance. Governments should recognise enormous benefits of customary land tenure systems, and the problems created by giving primacy to foreign‐derived law.

Clarissa Augustinus (2003) offers arguably one of the best set of guidelines on how governments can approach formal regulation and registration of customary tenure, and I paraphrased as follows: Recognise customary tenure rights BEFORE registration; Registration should protect existing unregistered rights rather than undermine them (Uganda); Pilots are useful as a first step to implementation (Uganda, Mozambique); Creation of an outside boundary recorded/registered in the Surveyor General; Information on the land rights of investors, state and the poor must be kept on the same record (Mozambique, Uganda, Namibia, South Africa); First establish a decentralized system of land administration and adjudication down to community level before commencing land registration; Demarcate and register the land administration zones and formalize land governance structures for each zone especial community based structures;  then Commence voluntary registration based on need; Finally go for systematic registration of remaining parcels as demand grows and the admin/adjudication system mature; Democratic structures forming part of new land laws, meant to bring good governance at the local level, can be too costly to implement (Uganda, S. Africa); Registry systems have to adapt to be able to register customary type tenures, decentralized, transparent and a user- friendly culture (Namibia); Registries need to assist the poor with legal advice about their land rights and their options (Rehoboth-Namibia); New laws may be needed making provision for registration of group rights (Uganda, Mozambique, South Africa); and Protection of spouses through co-ownership laws (Mozambique), joint estates through family law (South Africa) and tenure security through requiring consent for the transfer of land (Uganda, Kenya, South Africa).

Conclusion

There is need to place priority on strengthening land governance and therefore tenure security across the board as the general strategy especially at early stages of economic structural transformation –where most Southern African countries are. Land tenure reforms, therefore, are needed across all tenure systems. Governments should reconsider the belief and temptation to prematurely substitute customary tenure with imposed law or statutory tenure. What is key is ‘tenure security’ as opposed to ‘type of tenure’. A ‘multi-form tenure policy’ is appropriate given the historical legacies of imposed law and customary tenure. Countries should harmonise customary and statutory land laws and their administrative systems and modalities. Where appropriate, customary title deeds should be legislated under the dictates of customary law and administration systems that are harmonised and integrated into the state machinery, and public land information system and registry. This paves way for a culturally sensitive approach that has scope to evolve itself along with structural transformation as a unified land market. This path is preferable to the current pressures of forcing an ‘enclosure’ policy through foreign and local concessions and land deals. The land markets that already exist in communal areas could also inform reforms, but governments and donors do not recognise the potential to modernise those markets under customary systems. Policy must discourage abolishment mentality and/or colonial type approaches and strategies that just seek for crude ways of prematurely forcing the emergence of land markets. Land markets are a result of progressing structural transformation, not the reverse. Moreover needed cultural transitions and reforms go beyond land. Inspite of their drawbacks, customary laws and tenures have strong points too. A wholesale attack on African cultures is inappropriate, and just prolongs the residual colonial trauma that Africans are still trying to heal themselves from, while preserving their African identity and cultural heritages. No culture in the world is perfect, yet all want to keep their identity and heritages as they evolve. Promote modernisation –-not Westernisation or Easternisation of customary laws and heritages. Countries need to develop a capable, effective and decentralised land administration system as a pre-requisite for effective titling and registration, and as a basis for linking land markets with financial services, and as a best way to promote land tenure security, transparency and minimisation of conflicts and disputes, better spatial planning, and generally securing all tenure types and integrating them into one linked national land market. Such decentralised system of land administration will be able to fulfil functions of adjudication, conflict management system, mutations- such as change of use, and change of ownership. These efforts in some cases may require a full diagnosis of the land administration systems.

BIBLIOGRAPHY

Africa Union (AU) Land Policy Initiative (2013) Large-scale land based investments in Africa Synthesis Report. Addis Ababa. AU/AfDB/UNECA.

Augustinus Clarissa (2003) Comparative Analysis Of Land Administration Systems: African Review With Special Reference To Mozambique, Uganda, Namibia, Ghana, South Africa By Work Undertaken For The World Bank, Funded By DFID January, 2003.

Bruce, J.W. and S. E. Migot-­‐Adholla (eds), 1994. Searching for Land Tenure Security in Africa, the World Bank, Washington DC.

Cotula L (ed) 2007. Changes in ‘Customary’ Land Tenure Systems in Africa (London: International Institute for Environment and Development, 2007). ISBN: 978-1-84369-657-5

Hilhorst T. and N. Aarnink. 1999. Co-managing the Commons: Setting the Stage in Mali and Zambia, (Amsterdam: Royal Tropical Institute, 1999).

IIED. 2002. Making Land Rights More Secure: International Workshop for Researchers and Policy Makers (London: International Institute for Environment and Development, 2002).

McAuslan Patrick. 2003. Bringing the Law Back In: Essays on Land, Law and Development Aldershot: Ashgate.

McAuslan Patrick. 2005. Legal Pluralism as a Policy Option: Is it Desirable? Is it Doable? Collective Active for Property Rights (CAPRi) Policy Briefs. From proceedings of October 31st to November 3rd, 2005 Workshop “Land Rights for African Development: From Knowledge to Action.”  Hosted by UNDPs Drylands Development Center and the International Land Coalition

Meizen-Dick R., M. Di Gregorio and S. Dohrn. 2008. Decentralization, Pro-Poor Land Policies, and Democratic Governance (Washington: CGIAR Systemwide Program on Collective Action and Property Rights (CAPRi), Working Paper No. 80, 2008).

Migot-Adholla, S., P. Hazell, B. Blorel and F. Place, 1991. “Indigenous Land Rights Systems in Sub-Saharan Africa: A Constraint on Productivity.” The World Bank Economic Review, 5:1, pp 155-175.

NEPAD Agency, 2016, NEPAD Agency Framework for Mainstreaming Land Policy and Governance into National Agriculture and Other Sectoral Policy. Midrand: NEPAD Agency.

Oakland Institute. 2011. Understanding land investment deals in Africa. Country Report: Zambia. Oakland. California. www.oakland institute.org.

Wells Julia. 2015.  Historical Overview of Communal Land Use in Southern Africa. Unpublished

Woodhouse, P. (2003). African Enclosures: A Default Mode of Development, World Development, Vol 31, No. 10.

[1] It can also be argued that absence of formal registration does not automatically mean insecure tenure.

[2] Paraphrased from The Statement to Governments from the African Community Rights Network Douala Conference on Community Rights
Cameroon, 1316 September 2011

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