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Abstract
The main argument of this paper is that insecurity of land tenure is a socio-political condition that can be made - and unmade. Its origins lie in 19th and 20th century policies which failed to accord indigenous and customary occupancy their deserved status as private property interests. This has deprived millions of poor of the protection they need to withstand the worst effects of social transformation and the commoditisation of land. Lands and resources owned in common have been most affected, the more valuable having been withdrawn from local custodianship or reallocated to outsiders and investors. Reforms of the 20th century often improved the general access of poor to land but made customary rights less secure. Entitlement programmes that converted customary occupancy into individualised European-derived tenure forms have widely extinguished secondary and common property interests.
In Africa (the focus of this paper) over 90 percent of the rural population gain access to land by custom, and around 370 million of them are definably 'poor'. With exceptions, customary access to land has been no more than permissive and often remains so. People with customary rights to land often live on land that is actually classified as government or public land. While rights over farmland and houses are not routinely interfered with, common property ownership of pastures, forests and woodlands see constant attrition through state appropriation and reallocation to investors or interest-holders of its choice. Yet these lands provide substantial support to livelihoods, especially of the poor who often have no or little farmland. The lucrative and rising values of pasture, forest and woodland are still typically captured by governments in the form of logging, agribusiness land leasing and other fees. This deprives poor communities of a crucial capital base which could help them escape poverty.
A new wave of global land reform is underway within which the legal status of customary rights held by rural Africans and other indigenous populations around the world is improving. In a small but growing number of cases in Africa, customary rights are now accorded equivalent legal force with those acquired through non-indigenous systems under state law and may be registered under state law. Support for the devolved governance of these rights at local levels, and building upon customary norms, is also growing.
Constraints upon the delivery of real security abound. The paper points to the need for a more action-based and community driven evolutionary process. This, it is argued, will better resolve conceptual confusions that still surround customary tenure and which frustrate sound policy development and will trigger the empowerment and institution building that are needed to engender the public ownership of reform. This will help develop political will (which has otherwise often been transient) for the genuine removal of the chronic tenure insecurity of the rural poor. It will also help limit the impacts of reform that is broadly market-driven and in the African context, often primarily seeks to bring as much unoccupied customary land as possible into the market-place for investor acquisition. Approaches which work from the community level will also bring threatened commons to the centre of reform, facilitating the evolution of stronger constructs for the ordering and protection of collective rights. Securing those rights in clear and inclusive ways will lay a foundation from which their generally poor shareholders may begin to reap the benefits.
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