Introduction
Background
Across rural Africa, land legislation struggles to be properly implemented, and most resource users gain access to land on the
basis of local land tenure systems. Although such systems claim to draw their legitimacy from “tradition” and are commonly referred to as “customary” (and for easier reading we will follow this terminology), they have been profoundly changed by decades of colonial and post-independence government interventions, and are continually adapted and reinterpreted as a result of diverse
factors like cultural interactions, population pressures, socioeconomic change and political processes. Such land tenure systems
are extremely diverse, possibly changing from village to village. This diversity is the result of a range of cultural, ecological, social, economic and political factors.
For decades, many African governments have sought to replace customary land tenure systems with a “modern” system of
property rights, based on state legislation, on European concepts of ownership and on land titling and registration. This is partly because, since colonial times, customary land tenure was held not to provide adequate tenure security, thereby discouraging
investment and negatively affecting agricultural productivity (Swynnerton, 1954; Wilson, 1971). In order to address these issues,
African states took on a key role in regulating land relations – either directly, through land nationalisation, or through
registration programmes aimed at creating private ownership rights. This central role of the state in land relations was to promote agricultural development on the one hand, and to control a valuable asset and a source of political power on the other. However, in much of rural Africa, lack of financial resources and of institutional capacity in government agencies, lack of
legal awareness and, often, lack of perceived legitimacy of official rules and institutions have all contributed to limit the outreach of state interventions. Where land registration has been pursued, this has proved slow, expensive, difficult to
keep up-to-date and hard for poor people to access. As a result, very little rural land has been registered (across the continent formal tenure covers only between 2 and 10 percent of the land; Deininger, 2003), and customary land tenure systems
continue to be applied in much of rural Africa.
In addition, the claims on the inherent insecurity of customary land tenure have been challenged by research that has demonstrated the resilience of these systems and their capacity to adapt to changing circumstances. While earlier approaches emphasised continuity of “tradition”, more recent studies have emphasised change and reinterpretation (Cousins and Claasens, 2006). For instance, a large body of research from many parts of West Africa has documented the emergence of land rentals and
sales within local tenure systems – practices that were previously considered to be incompatible with customary tenure (Lavigne Delville et al., 2001; Mathieu et al., 2003). Recent research has also shown that local land systems effectively enforcing
land rights can provide adequate tenure security and related investment incentives (Sjaastad and Bromley, 1997). At the same time, important equity concerns have been raised in relation to many customary systems, particularly with regards to gender and
the protection of the land rights of more marginalised groups. Far from being the idealised, “community-based” systems described by some, customary land tenure regimes (and elite manipulation thereof) provide the backdrop for processes of exploitation and social exclusion. While the central role played by negotiation in those systems enables flexibility and adaptability, it can also lead to the marginalisation of those with weaker bargaining power (Peters, 2004). And, while the position of women under customary tenure varies considerably, many such systems contain norms and practices that are gender discriminatory (Whitehead and Tsikata, 2003).
As a result of the failure of early attempts to replace customary systems with modern systems of land tenure, and of the recent, more nuanced perception of customary systems, a shift in thinking has taken place. It is now generally recognized that land policies and laws must build on local concepts and practice, rather than importing onesize-fits-all models. This entails, among other things, legally recognizing local land rights, which are the entitlements through which most people gain access to rural land. In its latest Policy Research Report on land tenure, for instance, the World Bank argued that “in customary systems, legal recognition of existing rights and institutions, subject to minimum conditions, is generally more effective than premature attempts at establishing formalised structures” (Deininger, 2003:xxvii).
As a result of this shift in thinking, recent land policies and laws present important innovations compared to their predecessors. Some African countries have made explicit efforts to capture all land rights in records, even where land remains state-owned or vested with the state in trust for the nation. This includes protecting customary land rights and providing for their registration. In Uganda, while the Land Reform Decree of 1975 made customary landholders tenants at will of the state (McAuslan, 2000), the 1995 Constitution and the 1998 Land Act, as amended, protect customary land rights. Customary rights are also protected for instance under Mozambique’s Land Act 1997, Tanzania’s Land Act and Village Land Act 1999, Niger’s Rural Code 1993 and Namibia’s Communal Land Reform Act 2002. In Niger, the Rural Code specifically recognises customary rights as a legitimate source of land claims. Mozambique’s Land Act 1997 reaffirms the principle of state ownership over land but protects “rights of use and benefit”, which are acquired either on the basis of “customary law” or through good-faith occupation for at least ten years. In Mali, while post-independence legislation abrogated customary rights, the Land Codes (Codes Domanial et Foncier) of 1986 and 2000 (as amended in 2002) legally recognise customary land rights and grant them (some degree of) legal protection.
This shift in thinking on land tenure security has raised new questions and challenges. For instance, if local land rights are to be recognized, how to go about it in practice? Customary systems are often complex, with overlapping rights over the same resource held by different users (e.g. herders and farmers, men and women, parents and children). Also, some have argued that formalization risks resulting in codification and hence in loss of flexibility, which is one of the very strengths of customary systems. In addition, some groups may be discriminated against under customary systems (typically women), and formalizing customary rights may favour some groups and disadvantage others (e.g. migrants vs. autochthones). This creates the challenge of devising mechanisms to recognise local land rights without entrenching discriminatory institutions and practices.
Above all, such shift in thinking raises the need to ascertain what is happening to local land tenure systems on the ground. In recent decades, important changes in African economies and societies have taken place, including demographic growth, urbanisation, monetarisation of the economy, livelihood diversification, greater integration in the global economy, and cultural change. These factors are likely to have affected, and to continue to affect customary land tenure systems. Reports from across the continent have suggested that processes of individualisation and commercialisation of land relations are taking place. Customary systems have also been affected by decades of government policies and programmes in the land sector. While these interventions may often not achieve their original aims, they do generate intended and unintended consequences, including
possibly undermining the effectiveness and/or perceived legitimacy of customary systems.
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