mwangi, esther 2006 'land rights for african development-- from knowledge to action' capri, cgiar,...

7/27/2019 Mwangi, Esther 2006 'Land Rights for African Development-- From Knowledge to Action' CAPRi, CGIAR, UNDP (39

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Contents

Introduction.1

Esther Mwangi and Eric Patrick

Land.Tenure,.Land.Reform,.and.the.Management.of.Land.and.Natural.Resources.in.Africa.3Joan Kagwanja

Legal.Dualism.and.Land.Policy.in.Eastern.and.Southern.Africa.6Martin Adams and Stephen Turner

Legal.Pluralism.as.a.Policy.Option:.Is.it.Desirable?.Is.it.Doable?.9Patrick McAuslan

Gender.Issues.in.Land.Tenure.under.Customary.Law.11Patricia Kameri-Mbote

Innovations.in.Land.Tenure,.Reform.and.Administration.in.Africa.14Clarissa Augustinus and Klaus Deininger

The.Commons.and.Customary.Law.in.Modern.Times:.Rethinking.the.Orthodoxies.17Liz Alden Wily

Biting.the.Bullet:.How.to.Secure.Access.to.Drylands.Resources.for.Multiple.Users.21Esther Mwangi and Stephan Dohrn

Decentralization:.An.Enabling.Policy.for.Local.Land.Management.24Hubert M.G. Ouedraogo

Will.Formalizing.Property.Rights.Reduce.Poverty.in.South.Africas.Second Economy?.

Questioning.the.Mythologies.of.Hernando.de.Soto.27Ben Cousins, Tessa Cousins, Donna Hornby, Rosalie Kingwill, Lauren Royston, and Warren Smit

Getting.the.Process.Right:.The.Experience.of.the.Uganda.Land.Alliance.in.Uganda..30Oscar Okech K. and Harriet Busingye

Getting.Agreement.on.Land.Tenure.Reform:.The.Case.of.Zambia.33Joseph Mbinji

The.Land.Policy.Process.in.Burkina.Faso:.Building.a.National.Consensus.36Ouedraogo, Hubert M.G.


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IntroductionEsther Mwangi and Eric Patrick

The UNDPs Drylands Development Center, the International Land Coalition (ILC), and the ConsultativeGroup on International Agricultural Research (CGIAR) systemwide program on Collective Action andProperty Rights (CAPRi) began ormal collaboration in 2004. All three organizations, i.e UNDP (a globaldevelopment policy implementation organization), ILC (a global advocate on land issues to increasecooperation between civil-society, governments and intergovernmental organizations) and CAPRi (a CGIARsystemwide policy research program) share the conviction that land tenure can be a mechanism throughwhich the goals o gender equity, poverty reduction, eciency and sustainable resource management can beachieved.

All three organizations also appreciate that the complexity o tenure systems, in Arica and elsewhere,requires complex policy solutions, which can be tailored to respond to cultural, political and ecologicaldemands at multiple levels. Common property arrangements in particular continue to be signicant to thelives and livelihoods o many poor, whose land rights are increasingly threatened. UNDPs DDC, ILC and

CAPRi ocus their joint eorts and comparative advantages in bringing these issues to policy at multiplelevels and to engender the participation o multiple stakeholders to oster meaningul policy change.

From October 31st to November 3rd, 2005 UNDPs Drylands Development Center and the InternationalLand Coalition hosted a workshop: Land Rights or Arican Development: From Knowledge to Action.This workshop addressed key land tenure issues in Arica that infuence ood security, environmentalsustainability, agricultural intensication, confict, peace building and broader rural development. It broughttogether a total o about sixty ve practitioners, legal experts, policy makers, development partners and civilsociety representatives rom dierent parts o the world. This collection o bries summarizes select paperspresented at this workshop.

A wide range o issues are captured and reiterated in the 12 bries contained in this collection. Theseinclude: the prevalence and importance o customary tenure; the prevalence and importance o common

property arrangements; constraints to womens access under both customary and statutory tenure; the needto secure common property and other orms o tenure; and the importance o broad based participation tosecure broad consensus among multiple actors in order to enhance the eciency, equity and sustainabilityobjectives o land tenure reorms.

The bries also refect on the innovations necessary or securing tenure or the poor under a variety o settings.These innovations include:

adjusting received law to customary norms and rules o land holding and access, as opposed to outrightreplacing customary tenure

altering lending rules by banks and nancial institutions to promote land-related investments (even on landregulated by customary and/or religious law)

de-emphasizing the notion o ownership and reocusing on use rights in order to secure womens rightsand access

restructuring conventional land administration systems to support group-based rights structures encouraging decentralized land management systems that refect local cultural norms and practices in situations o multiple, overlapping resource use, strengthening processes o negotiation and confict

resolution as opposed to a generic concern with substantive rights in order to secure the access opermanent and transitory resource users.


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A ten-step procedure is also suggested (Alden Wily), which would enable communities to restore their grouprights and practices to create and control their own tenure norms. These innovations, while desirable, are alsorisky: corruption, elite capture, exclusion o non-members and lack o capacities have been hurdles acedby communities.

The background papers and the issues they raised ormed the basis o rich discussions by workshopparticipants. Workshop outcomes are a general restatement o the content o the background papers andpresentations. There was substantial agreement on the ollowing:

Land tenure in Arica is complex. The existence o customary, religious and statutory arrangements (i.e.legal pluralism) is a critical, dening eature o Arican land tenure. Land tenure reorm must accommodatethis complexity rather than replace it.

The pit-alls o ormalization should be avoided, and in particular tenure codication should be delinkedrom collateralization. Cheaper ways o registering rights than the cadastre are needed.

In order to eectively address land tenure security, power issues at local and national levels must beaddressed. There is a need or a multi-level, multiple actor approach. Land tenure reorm is an urgentgovernance issue that can best be addressed by all development partners in collaboration.

The implementation and impacts o land tenure reorms should be evaluated at multiple governance

levels in order to identiy constraints, crat solutions, and to ensure that reorms are securing the rights andlivelihoods o women, the poor and marginalized groups.

New innovations are needed over and above tinkering with existing possibilities. For instance, thedevelopment o centers or legal advice and assistance or both rural and urban dwellers may enable thepoor to claim their rights and even challenge abuses o power.

The entire set o panel presentations, background papers and discussion summaries is available at theollowing website: http://www.undp.org/drylands/lt-workshop-11-05.htm

Esther Mwangi([email protected])Esther Mwangi is a Postdoctoral Fellow with the CAPRi research program

Eric Patrick([email protected])

Eric Patrick is a Policy Specialist at UNDPs Dryland Development Center


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Land.Tenure,.Land.Reform,.and.the.

Management.of.Land.and.Natural.

Resources.in.AfricaJoan Kagwanja

Examining benefts and costs o alternative land rights regimes is vital to a

successul land rights reorm agenda.

Introduction

Land and land resources in Arica are increasingly governed by modern systems o tenure and less by

customary systems. Unortunately, changing land use and land ownership patterns have not always beenaccompanied by appropriate reorms in policies, laws, and institutions. Arica must ensure that the currentwave o land reorm initiatives, which oten coincide with political and economic reorms emanatingrom democratization, help to establish needed changes in land rights as well as legal and institutionalrameworks.

Issues Regarding Land Tenure and the Management o Land

Resources

Agriculture and ood security:Arican land use regulation has long tended to protect large-scale arms thatproduce agricultural exports at the expense o small-scale customary lands used mainly or ood crops.

Unequal land distribution hampers agricultural development by limiting land access to many needy Aricansor relegating them to marginal lands. Constraints relating to insecure land tenure and the nontranserablenature o land continue to discourage Aricans rom making needed agricultural investments.

Common property resource management:Pastoral resources are predominantly common property resourcesthat are by nature dicult to partition. While in some cases community institutions and conventionsgovern such resources, in others open access can lead to overuse and degradation. Governments acethe choice o individualizing the resources or strengthening community institutions to better govern them.Though simpler, individualization excludes manyespecially the poor. Community management systemstraditionally protect access rights or the poor, women, pastoralists, and others. Because common propertymanagement is more complex, it is important that the state empower communities through legal provisions,institutional arrangements, and capacity building or decisionmaking and enorcement. Also importantis ensuring that indigenous systemsincluding customary tenurethat contribute to sustainable use o

resources are recognized.

Gender relations:Not only do women produce and prepare ood, they also transmit knowledge and skillsrelating to ood, agriculture, and natural resource management. While oten regarded as the keepers o theenvironment, under many land tenure systems women do not hold primary rights to land but instead gainaccess through male relatives. Security o tenure in private, communal, and other orms o land ownershipcan encourage women to invest in the land, adopt sustainable arming practices, and better take care o otherresources.

Natural resource conficts:Activity- and actor-led land and natural resource conficts are a cause or concern


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Disputes mostly center on the demarcation, ownership, and inheritance o land; or rom the weakening ocustomarily held rights o pastoralists. The causes include unsuitable land legislation, especially where thereis no comprehensive land policy or ambiguous laws do not address overlapping rights and claims to land.Dysunctional and inaccessible land administration also contribute to disputes, as do land grabbing and landinvasions. In addition, disputes are ueled by the pressure o increasing population.

HIV/AIDS:Families aected by HIV/AIDS may, in extreme cases, be orced rom their lands, such as whenwidows are prevented rom controlling land let to them by their husbands. In common property resources,where the ability to use the resources is vital to maintaining rights to resources, HIV/AIDS can havedetrimental eects on land rights as aected households are excluded rom access and control. For thosewho have secure rights, AIDS can render them unable to use the land or orce them into distress land sales.Land reorms must consider the eects o the pandemic on amilies, households, and communities.

Current Reorms Geared toward Alternative Land Rights

Most land reorm agendas are either driven by eciency or equity objectives, or both. Understanding thedynamics associated with dierent types o land rights is crucial to any land reorm eorts.

Customary land rights oer access to land and security o tenure to many poor households. However,because they provide limited access to ormal credit and input markets and to sales outside the group,

opportunities or productive exchange and access to credit are limited. In ashit toward titling, registered customary land rights boost the possibilitiesor land transactions in both ormal and inormal markets and or access toormal credit institutions.

Once advocated as the optimal solution or granting tenure security andland access, land titles oten involve high transaction costs. While titlingmay benet armers o high-value commodities, it is usually impractical orpoor resource armers. In addition, the links between land titling and tenuresecurity, credit availability, and investments have not been well established inArica.

Redistributive land rights aim to reduce inequalities in landowning emanatingrom previous imbalances. As conscated land initially becomes state land,redistributive rights provide limited opportunities or sale and rental. Insome areas, redistributive rights have proved to ulll both eciency andequity objectives by providing more land access to women and younger,more productive households. Recent reorms in southern Arica encouragingmarket-based land polices were aimed at acilitating equity and eciencywhile avoiding the negative eects o land conscation. Unortunately, thereis evidence that white armers acquired more land under these policies thandisadvantaged black armers. Subsidized market-based reorms provide landright holders with nancial support to pay or part o the cost o acquiring

land. I well targeted, such programs could benet women and poor people.

A Reorm Agenda

Getting Arica on a path o land reorm that acilitates ecient, equitable, sustainable use o its land andnatural resources requires understanding the intended beneciaries o land reorm programs and theirenvironment. Examining benets and costs o alternative land rights regimes is vital to a successul land rightsreorm agenda. Reorms should address all processes, including the capability o governments to undertakethe necessary reorms.

Customary land rights

oer access to land and

security o tenure to

many poor households.

However, because

they provide limitedaccess to ormal credit

and input markets and

to sales outside the

group, opportunities or

productive exchange

and access to credit are

limited.


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The majority o current

land redistribution

programs result in

restricted land rights

with rights holders

denied the right to sell

land.

Reorming customary rights and local institutions:Simple inexpensive registration programs or customaryrights can help these rights become legally recognized. The aim is to improve eciency by enhancingtenure security and land transer, and acilitating access to credit and other inputs or rights holders.

Improving land rights gained rom redistribution:The majority o current land redistribution programs

result in restricted land rights with rights holders denied the right to sell land. Although it is important toensure that mass land sales do not ollow such programs, it is equally important to recognize the need toallow these rights to evolve.

Addressing constraints in market-based reorm programs:The valuationsystem should be reormed by making a distinction between improvedand nonimproved lands. This would reduce the price o unimprovedlands and make them more aordable to governments to acquire orredistribution or to poor armers who wish to buy land.

Decentralized land administration:Reorms geared toward electedauthority or local land administration would increase responsiveness tolocal interests and needs. The government, however, must provide the

broad ramework and principles, rules o tenure and access, and ensuretransparency and accountability o these institutions.

Enhancing mechanisms or land and natural resource dispute resolution:The eectiveness o any dispute resolution mechanism depends on theability to anticipate confict. This calls or early warning and strategicplanning. Short-term capacity-building eorts can strengthen institutionsthat handle reugee repatriation and integration. The ability o internally displaced persons to participatein dispute resolution should also be strengthened. Resettlement programs should be reviewed with theaim o reducing conficts among dierent land uses. Programs or civic education aimed at enhancingpeaceul coexistence could be useul. Institutional, legal, and policy responses to confict should aim orcomprehensive programs that work through well-established orms o redress. Improved land registrationand aordable mechanisms or demarcating boundaries are essential, as are law reorms geared toward

recognizing rights o communities to natural resources. Finally, trends toward improved governance are awelcome sign that ineciency and corruption in land administration will be addressed.

Further Reading

Economic Commission or Arica (2004). Land Tenure Systems and their Impacts on Food Security andSustainable Development in Arica. Addis Ababa, Economic Commission or Arica. http://www.uneca.org/eca_resources/Publications/sdd/Land_Tenure_systems.pdEconomic Commission or Arica (2004). Land Tenure, Land Reorm and the Management o Land andNatural Resources in Sustainable Development Report on Arica. Forthcoming in 2005.Ngaido T (2005). Reorming Land Rights in Arica. 2020 Arica Conerence Brie 15, Washington D.C: IFPRI.http://www.ipri.org/pubs/ib/ib31.pd

Joan Kagwanja ([email protected])Joan Kagwanja is an Economic Aairs Ocer at the UN Economic Commission or Arica


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Legal.Dualism.and.Land.Policy.in.Eastern.

and.Southern.AfricaMartin Adams and Stephen Turner

Tenure dualism needs to be recognized as a resource

not an obstaclein the changing livelihoods o the poor.

The Historical Background o Legal Dualism

Colonial regimes imported systems o common and statute law or their own purposes, operating themalongside existing systems o customary law. Customary law prevailed in some areas, while statute lawand imported common law prevailed in others. This legal and tenure dualism tended to reinorce settler

interests, simpliy and strengthen the roles o traditional authorities, and suppress womens land rights. Sinceindependence, dierent countries have pursued dierent policies, though the relegation o customary lawto second-class status was usually maintained. Oten, customary land administration arrangements havedecayed without being replaced by satisactory statutory arrangements.

Initially, many newly independent governments believed that measures tonationalise land would sweep away the inequities o tenure dualism andcreate unied systems o land rights that would bring prosperity to peasantsand the urban masses alike. A number o countries sought to create a singlelegal system that made statute and imported common law paramount.Others attempted to restrict tenure dualism through statist policies onationalization and the conversion o reehold to leasehold.

But customary law and tenure proved tenacious, and ew early reormsaimed at strengthening state control over customary land proved eectiveor durable. Though customary law may hardly be acknowledged in nationallegislation, it oten continues to dominate real lie, especially in the ruralsector and among the poor and underprivileged.

A ocus on the specically legal aspects o the gap between theory andpractice is not the most helpul way orward. It is more useul to ask whatsocieties can do to bridge the divide between land tenure systems basedon the imported concept o absolute private ownership and those based onmore complex indigenous rameworks o nested individual and group rights.

Registration and Titling Programs

More gradualist approaches, some initiated in the colonial period, have ocused on adjudication and titlingas ways to extend the perceived benets o secure individual tenure to rural people living under customarytenure regimes. However, registration and titling programs have not automatically unlocked economicgrowth. Instead, they have oten disempowered vulnerable people, embroiled rural people and bureacrats ininnumerable disputes, and tied down substantial state resources. Statutory registration o title has also servedto weaken the land rights o women and tenants and downplay the status and role o women as users o land.Unmarried women, divorcees, and widows, who were ensured at least some user rights under traditionaltenure systems, were particularly vulnerable. Further, land registration, designed or a sedentary mode oagriculture, marginalized pastoralists, who lost access to key land resources during droughts. Ater decades

Colonial regimes

imported systems o

common and statute lawor their own purposes,

operating them alongside

existing systems o

customary law.


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o eort, titling approaches have covered only limited areas, adding evidence to the global lesson that ruraltitling oten causes more problems than it solves.

Primary and secondary land rights communally held by poor households in sub-Saharan Arica are notwell suited to ormal recording and registration and the issuance o negotiable bonds. In any case, the idea

that ormalizing property rights would increase the supply o credit is unrealistic, judging rom the ailureo the land titling program in Kenya to unlock arm loans. Apart rom the absence o title to mortgageableproperty, there are many other constraints to the supply o credit to poor armers in remote rural areas. Inaddition, an ecient land market requires an adequately resourced and managed land administration, oneree rom corruption and rent seeking. Though an ecient land administration is not beyond the boundso possibility in Arica, it seems a long way down the road, principally because governments do not havethe administrative and technical capacity to unscramble the legal ramework and 40 years o neglect oincremental reorm.

What Is Needed

Rapidly growing urban populations are particularly vulnerable to land tenureand administration systems that still refect the tenure dualism introduced by

colonial regimes. In these areas, land reorm may be required to regularizeextralegal tenure and acilitate development. Governments may be reluctantto legitimize such extralegal practice, but they need to accept the continuinglimitations o state policy and statute law and the ongoing signicance ocustomary law and tenure.

In an increasing number o countries, land policy proposals support theidea o legally strengthening the powers o local communities on customaryland to manage their own land rights. However, decentralization o decisionmaking to the local level is not a panacea. What is needed in the necessarylegal reappraisal is to catch up with the tenure approaches and mechanismsthat citizens have themselves devised in the ace o legislative andinstitutional inertia or indierence.

More realistic policy approaches to tenure dualism are being graduallydeveloped in eastern and southern Arica. Some countries have begun toembrace tenure dualism in imaginative ways, adjusting to and embracingcustomary tenure regimes rather then seeking to overthrow them. These evolutionary approaches recognizethat statute law should allow customary law and tenure to continue in the ordinary lives o land users untilthey have specic reasons to convert their titles to new ormats. When such need arises and is identied,the legal and institutional apparatus should be ready with appropriate orms o title and necessary supportsystems and procedures.

These proactive approaches to tenure dualism are more challenging than their less imaginative predecessors.They require the building o bridges between tenure regimes and legal systems, and they demand realism

rom policymakers and legislators about the capacity o Arican states to infuence the evolution o tenureand administer their citizens land aairs. They also require governments to recognize the continuinglimitations o state policy and statute law and the ongoing signicance o customary law and tenure in theland rights and transactions o their citizens. In so doing, Arican governments are invited to bring the socialand institutional resources o customary systems to modern processes o national development.

Rather than changing daily practice on the ground, the ormal character and structure o land rights mustbe altered to acilitate an evolutionary conversion. This means that clear and secure paths to more modernormats and modes must be provided. Though land tenure and administration may be integrated in asingle statute law, tenure dualism needs to be recognized as a resourcenot an obstaclein the changinglivelihoods o the poor.

Rapidly growingurban populations are

particularly vulnerable

to land tenure and

administration systems

that refect ineective

governmental attempts

to address tenure

dualism.


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Further reading:

Elizabeth Daley and Mary Hobley, 2005. Land: Changing Contexts, Changing Relationships, Changing Rights.

http://www.oxam.org.uk/what_we_do/issues/livelihoods/landrights/downloads/land_changing_contexts_relationships_

rights.rt

Martin Adams, Faustin Kalabamu, and Richard White. 2003. Land Tenure Policy and Practice in Botswana - Governance

Lessons or Southern Arica. Austrian Journal o Development Studies XIX (1): 55-74.

http://www.oxam.org.uk/what_we_do/issues/livelihoods/landrights/downloads/botsless.rt

Christopher Tanner. 2002. Law-Making in an Arican Context: The 1997 Mozambican Land Law. FAO Legal Papers Online

#26, March 2002. http://www.ao.org/Legal//Prs-OL/lpo26.pd

Martin Adams ([email protected])Martin Adams is Principal Consultant with Mokoro Consulting

Stephen D. Turner([email protected])Stephen Turner is a Senior Consultant at the Center or International Cooperation


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Legal.Pluralism.as.a.Policy.Option:.Is.it.

Desirable?.Is.it.Doable?Patrick McAuslan

The use o land as security and an engine o wealth creation in Arica will

continue to be problematic until more creative mortgage systems and laws

are applied.

Essential Preconditions or Workable Pluralism

There is one legal system with two coequal sets o legal rulesreceived law and customary lawand thejudicial system is empowered to use the systems over the long term. This equality means that communal

and collective rights in land are recognized and protected, and people can choose one equal tenure andlegal system over another. There is also local-level land administration and registration, where all customaryinterests are recorded and protected in land adjudication and customary as well as statutory alternativedispute resolution processes can be used. In addition, pluralist tenure and land law extend to urban areas,along with land regularization schemes and urban land adjudication.

Legal systems are in concert with basic national goals, and all legal rules are adapted to meet constitutional(and perhaps international) norms relating to gender equality, administrative justice, and protection oprivate and communal property rights.

Participatory community planning replaces top-down master planning. Formal market institutions are onboard, and ocials are advisers and acilitators o lay people who make the decisions. The powers andduties o public ocials are delineated, regulated, and exercised transparently and accountably. There areclear rules or actions and transactions, as well as mechanisms or enorcement.

Pluralist Approaches, Now and in Future

Though Arican countries are increasingly adopting a pluralist approach and have ceased attempts to abolishcustomary tenure, governments, international nancial institutions, and the private sector outside Arica arereluctant to try to work with or even to begin to understand its strengths. But seminal judicial decisions inAustralia, Canada, and South Arica have recognized that the original, customary rights o indigenous inhabitantsdo not disappear because no notice is taken o them by the government o the day. These customary rightsare only extinguished by clear legal or actual governmental actssuch as a grant o land in reeholdthatdemonstrate beyond any doubt that these rights have been superseded by other rights in the land.

While any state can specically abolish customary tenure or create rights inconsistent with the continuationo rights to land under customary tenure, doing so requires payment o compensation or land, since these

rights predated the existence o the state. Customary tenure isand always has beenone o the oundationalelements o the land laws o all states in Arica. It is not an add-on to received law; indeed, received or imposedlaw is the add-on. Received law thus needs to be adapted and adjusted to indigenous law, not vice versa, andproponents o received law should be advancing the case or legal pluralism.

Monism, Pluralism, and Mortgage Law

Despite considerable evidence that legal monisma single, unied systemdoes not work, external orces suchas the World Bank and various donors have oered prescriptions or modernizing land tenure that implicitlyassume benets accruing rom monism and the homogenization o national land laws. The view o the WorldBank and commercial banks is that customary land rightshowever well protected and secureddont count,


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and titles registered in traditional civil law systems via land books and land courtshowever well secureddont count. Only registered titles that are individually owned or jointly owned by a spouse and governed byreceived law are acceptable security or loans by private-sector banks and building societies. In addition, banksand international nancial institutions have very strongly resisted attempts by Arican governments to provideby law the kind o relie oered in the developed world that tempers the strictness o rules governing deault by

mortgagors, especially mortgagors o amily homes.

A case study in Tanzania illustrates this point. Its 2001 land law relating tomortgages sparked opposition by local banks, who were supported by theWorld Bank. They objected to provisions that abolished oreclosure andthose that apparently granted powers to the courts to reopen mortgages thatwere prima acie oppressive, illegal, or discriminatory. They also objected toprovisions relating to time limits or bank actions to be taken, court injunctionsto prevent actions or possession and sale or non-meritorious reasons, andthe concept o small mortgages, or small loans taken out or short periods.Faced with this opposition, the Government o Tanzania revised the new lawand abolished small mortgages. The reorm will benet those with regularmortgagesthe urban middle and upper classesbut the less well o will

lose out. Banks in Tanzania now do not contemplate lending on anything otherthan a title registered under the Land Registration Act, which reduces the scopeo their lending to less than 10 percent o the land in the country.

The use o land as security and an engine o wealth creation in Arica willcontinue to be problematic until more creative mortgage systems and lawsare applied. Where governments in Arica need to make changes is in theirprocedures and processes; it is this, rather than in any pluralist system o landtenure, that inhibits investment in land. It is thereore not customary tenurebut customary conservative state bureaucracy and private mortgage practicesand attitudes that need undamental reorm.

Further reading:Patrick McAuslan. 2003. Bringing the Law Back In: Essays on Land, Law and Development Aldershot: Ashgate.McAuslan, P. 1998. Making Law Work: Restructuring Land Relations in Arica. Development and Change29: 525-552.

Patrick McAuslan ([email protected])

Patrick McAuslan is Proessor o Development Law at Birbeck School o Law, University o London

Banks in Tanzania now

do not contemplate

lending on anything

other than a title

registered under the

Land Registration Act,

which reduces the scopeo their lending to less

than 10 percent o the

land in the country.


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Gender.Issues.in.Land.Tenure.under.

Customary.LawPatricia Kameri-Mbote

The predominance o patriarchy in law, policy, and practice ensures that the

land has owners but that they are not women.

Introduction

Under all systems o law in many Arican countries, land ownership is anchored in patriarchy. Law canbe used to reinorce or make permanent social injustices, and, in the realm o womens rights, legal rulesmay give rise to or exacerbate gender inequality. Legal systems can also become obstacles when change isrequired: oten the de jure position, which may provide or gender neutrality, cannot be achieved in practice

due to numerous obstacles.

There are three issues to be noted with regard to law in its governance o tenure relationships: Statute books contain legal rules and principles that are or can be seen as legitimizing the subordination

o women. The structure and administration o laws can occasion the subordination o women. The socioeconomic and patriarchal realities in many Arican countries prevent the translation o abstract

rights into real substantive rights.

Womens Land Rights under Customary Law

Customary law is not uniorm across Arica, but there are some common actors:

Customary law tends be the unwritten social rules and structures o a community derived rom sharedvalues and based on tradition. Customary law pertaining to womens land tenure is based on social relations between men and women

and, more specically, husbands and wives. Customary law seems to have ew provisions or divorced women and even ewer or single women.

Property Rights in General

In Arica, under most systems o customary law, women do not own or inherit land, partly because o theperception that women are part o the wealth o the community and that they thereore cannot be the locuso land rights grants. For most women, access to land is via a system o vicarious ownership through men: ashusbands, athers, uncles, brothers, and sons. Customary rules thereore have the eect o excluding emalesrom the clan or communal entity.

Property Rights within Marriage

In several countries, customary land registration systems require a husbands authorization or a womanto acquire title independently, and single women and single mothers are obstructed rom acquiring titlealtogether. Under customary law, widowed women traditionally do not inherit land, but are allowed toremain on the matrimonial land and home until death or remarriage. Over the past decade, however,even this social saety net has eroded, with male heirs tending to sell o the land, leaving widows landlessand homeless. In most ethnic groups, a married woman does not own property during marriage. In somecommunities, all her property, even that acquired beore marriage, is under the sole control o her husband.


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Although the wie has the right o use over property, such control must be exercised with her husbandsconsent. Most control exercised by women on land is over use rather than control and ownership. Thissubordination o women socially and economically renders them less competitive than they should be underthe current economic structuring o society.

Property Rights at Separation and DissolutionAt dissolution, distribution o property depends on whether the property is land or otherwise and whether itwas acquired beore or ater marriage. Generally, a divorced wie may take her personal eects, but all otherproperty remains with the husband.

Eects o the Registered Land Act (RLA) o Kenya

The RLA was passed or the main purpose o enabling titleholders to deal with the land any way they seet. Right rom the beginning, registration was bound to exclude most women rom acquiring titles, sincethey generally only had use rights. Also, the tenure reorm process only considered the rights o people whohad land, not the landless or those who had only use rights. In most cases amilies designated the eldestson or the male head o household to register, and a right o occupation at customary law would only beprotected i noted on the register. Since the RLA does not recognize customary rights o use, women are at

the mercy o the titleholder. While section 30 states that registered land issubject to overriding interests, these do not include customary rights o use,an interpretation that has been upheld by the courts. The registration processthus unintentionally excludes most women rom property ownership and thebenets accruing rom such ownership.

The RLA limits the number o people who can register as common or jointowners o property. This is to control subdivision under the Land Control Act,which controls transactions in agricultural land and generally discouragesragmentation. The act aects succession rights o women, especially inpolygamous households where the property o the deceased husband has

to be subdivided. Subdivision into uneconomic units will not be upheld bythe courts, and this has the indirect eect o excluding some widows romownership.

The Intersection o Customary and Statutory Law

The convergence between the English doctrine o coverture and customary and statutory law on propertyrelations has had negative eects on women. For women, patriarchy exacerbates the situation, since maleheads o households constitute the exclusive locus o landholding when individual tenure is introduced.The eect o this is to extinguish womens land rights, including rights to access under customary law.Unortunately, gender neutral laws on land rights apply in contexts that are still very much gendered.

Countries have sought to entrench human rights norms in national constitutions as a way to address

discriminatory customary law. They do this by proscribing discrimination generally and by providing orboth gender equality and the application o customary and religious laws. However, they leave it to thecourts to arbitrate on what rights should prevail. This approach has its limitations: allowing or customarylaw application in personal law matters maintains biases against women, and leaving the issues or courts todecide presupposes that the arbiters are not themselves infuenced by prevailing gender perceptions.

The RLA was passed

or the main purpose o

enabling titleholders to

deal with the land any

way they see t.


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Conclusions

The predominance o patriarchy in law, policy, and practice ensures that the land has owners but thatthey are not women. For law and policy to infuence gender relations in the tenure realm, there is need todeconstruct, reconstruct, and reconceptualize customary law notions around the issues o access, control,and ownership. The view should be to intervene at points that make the most dierence or women.

There is need or innovative and even radical approaches. In determining tenure to land, rights should beearned or deduced rom an entitys relationship to the land. Rights should be anchored on use and subjectedto greater public good resident in the trusteeship over land or posterity. Given womens roles in landmanagement and husbandry, such an approach will identiy them as loci or rights grants and thus addressthe skewed gender and land relations under customary law that have been urther entrenched by statutorylaws.

Further reading:

Kameri-Mbote, Patricia. 2005. Inheritance, Laws and Practices aecting Kenyan Women. In MakumiMwagiru (ed.), . Arican Regional Security in the Age o Globalisation. Nairobi : Heinrich Bll Foundation.

http://www.ielrc.org/content/a0502.pdIngunn Ikdahl et al. (2005). Human rights, Formalisation and Womens Land Rights in Southern and EasternArica. Studies in Womens Law No. 57. Institute o Womens Law, University o Oslo.http://www.sarpn.org.za/documents/d0001447/P1786-Women-rights_June2005.pdL. Muthoni Wanyeki (ed). 2003. Women and Land in Arica - Culture, Religion and Realizing Womens Rights.Zed Books.

Prof. Patricia Kameri-Mbote ([email protected])Patricia Kameri-Mbote is Program Director at International Environmental Law Research Center at theUniversity o Nairobi


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Conventional land

administration systems

in sub-Saharan Arica

do not t customary

structures o group and

amily rights, do not

unction adequately or

solve land conficts, and

are not useul to most

people

Innovations.in.Land.Tenure,.Reform.and.

Administration.in.AfricaClarissa Augustinus and Klaus Deininger

Insufcient innovative tools exist to deliver aordable security o tenure and

property rights at scale or most o Aricas populations.

The Importance o Land Issues

Land and the institutions that govern its ownership and use greatly aect economic growth and povertyreduction. Lack o access to land and inecient or corrupt systems o land administration have a negativeimpact on a countrys investment climate. Well-unctioning land institutions and markets improve it,reducing the cost o accessing credit or entrepreneurs and contributing to the development o nancial

systems. Access to even small plots o land to grow crops can also greatly improve ood security and quality.Broad-based land access can provide a basic social saety net at a cost much below alternative governmentprograms, allowing governments to spend scarce resources on productive inrastructure. Policies that osterlease markets or land can also contribute to the emergence o a vibrant nonarm economy.

Increased demand or land may lead to public investment in inrastructureand roads and increased land values. When well-unctioning mechanismsto tax land are added, this can contribute signicantly to local governmentrevenues and provide resources needed to match decentralization oresponsibilities or service delivery. Improving land administration may alsocontribute to broader public service reorm and provide a basis or widerreorms.

Innovations and Options Needed

Conventional land administration systems in sub-Saharan Arica do not tcustomary structures o group and amily rights, do not unction adequatelyor solve land conficts, and are not useul to most people. Registering a titlecan take between 6 months and 10 years, records are poorly kept, mostpeople do not have title deeds, and millions o titles await registration.Furthermore, most systems are centralized, inaccessible, too expensive, nottransparent, and do not protect womens land rights suciently. Transormingsuch systems is a time-consuming and complex task. It normally entails thereorm o a number o separate agencies, alterations in power and patronage,and extensive civil society debate at national and local levels.

Innovations in land reorm and land administration that are adapted to current conditions are beingattempted in some countries in sub-Saharan Arica. However, insucient innovative tools exist to deliveraordable security o tenure and property rights at scale or most o Aricas populations. New tools need tobe developed, but these are not simple, easy to produce, or easily adapted to the diverse needs o variouscountries.

No single tenure option can solve all problems. Policy on land tenure and property rights can best reconcilesocial and economic needs by encouraging a diverse range o options, adapting and expanding existingsystems when possible, and introducing new ones selectively.


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Many countries are doing this. Some have passed new laws associated with typical PRSP objectives, oeringdecentralized local land administration oces, inexpensive or ree titles or tenure protection or the poor,adjudication procedures that protect occupants o land, accommodation o orms o legal evidence used bythe poor to protect their assets, and protection o womens land rights (such as prioritized allocation and co-ownership). Other innovations relate to dispute resolution and the technical design o the land administration

system. Such designs must have national application and be aordable to the poor, and they must notoverride customary and local tenure.

Another approach seeks to eliminate gender-based discrimination regardingland, housing, and property rights. This is particularly needed becauseindividualization o land tenure, land-market pressure, and other actorshave eroded customary laws and practices that used to protect women.The HIV/AIDS crisis has worsened the situation, and land-grabbing anddiscriminatory practices have increased evictions o women by their inlawsor husbands. Secure tenure would be a mitigating actor or these women,and would assist those widowed by confict who meet legal or customarydiscrimination against widows inheriting land.

Though some Arican countries have passed land legislation that is advancedin many respects, they are struggling to modernize and equip their landinstitutions to deal with the demands o implementation. In doing so, theyoten try to copy unaordable and sometimes inappropriate approaches(such as high-precision surveying) rom other parts o the world that cannotbe scaled up quickly.

To reach Millennium Development Goals whose achievement is mediatedby security o tenure, more ocus is needed on implementation o policy at scale, along with cost-eectiveand pro-poor land tools that t the human resource envelope.

One example is computerization o land records in some states in India, which, the evidence suggests, cansignicantly reduce the scope o the exacting o bribes by ocials and increase their accountability. The

computerization also linked ormerly disparate institutions, eected improvements in tenure security, andincreased the governments revenue collection.

Aordable Pro-Poor Tools

Aordable pro-poor tools that are needed include the ollowing: NGO enumeration inormation that becomes rst adjudication evidence or land rights or slum upgrading

and post-disaster housing delivery gender-riendly approaches to adjudication land administration appropriate or postconfict societies just-deceased estates administration, especially or HIV/AIDS areas and to protect womens land rights expropriation and compensation or the management o urban growth and improved agricultural

production a regulatory ramework or the private sector that takes into account poverty issues capacity building programs or in-country sustainability o land administration systems, particularly or the poor an aordable geodetic or Arica, possibly using NASAs inormation LIS/GIS spatial units as ramework data high accuracy, o-the-shel GPS units or nonproessionals robust indicators or benchmarks to measure tenure security or the delivery o Millennium Development Goals nontitled land rights that can be upgraded over time

Though some Arican

countries have passed

land legislation that

is advanced in many

respects, they are

struggling to modernize

and equip their landinstitutions to deal

with the demands o

implementation.


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What is needed is a global assessment to establish which tools exist, options or scaling them up and widelydisseminating them, and estimates o their cost eectiveness. New tools also need to be developed. Thisagenda will take many years, signicant unding, and a comprehensive global ramework.

Further reading:

Augustinus, C. 2005 Innovations in Arica: Pro Poor Land Approaches, Paper presented at the AricanMinisters Conerence on Housing and Urban Development (AMCHUD), 31 January -3 February, 2005,Durban, South Arica (unpublished).Food and Agriculture Organisation o the United Nations, 2005. Access toRrural Land and Land Administrationater Violent Confict, FAO Land Tenure Studies 8, Rome.International Federation o Surveyors, 2005 Proceedings o an Expert Group Meeting held by the InternationalFederation o Surveyors, Commission 7, UN-HABITAT and the Commonwealth Association o Surveyors andLand Economists on Secure land tenure: New Legal Frameworks and Tools, 11-12 November, 2004, Nairobi,Kenya.Fourie, C. 2001 Land and Property Registration at the Cross Roads: A Time or more Relevant Approaches,Habitat Debate, 7(3):16.

Clarissa Augustinus ([email protected])Clarissa Augustinus is the Chie, Land and Tenure Unit at UN Habitat

Klaus Deininger ([email protected])Klaus Deininger is a Lead Economist in the Development Economics Group at the World Bank


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A second and rising pool o insecurity that also needs prioritization is at the rural-urban interace where armsand commons are oten orcibly converted into building plots, oten to the manipulated benet o others thanthe customary owners. Statutory recognition o all customary land interests as private property rights duethe same protection o non-customary land rights needs purposive acceleration, achieved thus ar in only ahandul o Arican states.

The purpose o titling itsel is long overdue or review. Longstandingand recurrently revitalised justication o titling as or the purpose ocollateralization has over-ocused the procedure upon classically-centredindividual enterprise and muddied clarity as to what must remain theounding reason or recording and entrenching customary rights simplyto secure that tenure, irrespective o whether or not this provides a basis orinvestment loans. Each has its own rationale but or strategic clarity need tobe de-linked.

In any event, collateralization in the agrarian context could be a redherring. It is yet to be demonstrated that individual mortgaging may occurat mass scale in Arica, although this appears to have more promise in both

technically advancing agricultural economies and transitional states likethe Ukraine. The reasons are many but prominently include the act thatother saer routes or raising loans exist in the emerging Arican micro-credit market, that commercial lending agencies are understandably waryo mortgaging peasant holdings or ear that oreclosure will render thehousehold destitute and that demand or mortgages remains low in theabsence o better agriculture markets and given the limited potential orintensication in the mainly dryland agro-economies.

Collateralization could however gain a new lease o lie in respect ocommon properties. Owning communities could mortgage one parto theiroten substantial commons to raise loans or community based income-generating activities such as maize grinding mills and without risking amily

livelihood and to the greater inclusion o the majority poor. The rentalcapacity o these estates without mortgaging should however be explored rst, widely demonstrated ingovernment use o captured commons or leasehold commercial agriculture. Even pursuit o this potentialmust remain academic however without rst identiying the rightul owners o each common property and towhom such opportunities and benets should accrue.

What Is Required

In pursuit o registration, clearer understanding is needed as to the relationship between statutory andcustomary law. These are not an either/or. Statutory support i.e. parliamentary enacted laws is essential torecognise, sustain and uphold customary rights, irrespective o whether or not these are held by individuals,amilies, clans, groups or whole communities. Nor should it be assumed that that the codication o

customary law is prerequisite to ormal recognition or registration o customary land interests: it is not therules themselves that need modern law support as these do and should continue to alter with changingcircumstances such as already widely experienced over the last century. Rather it is the ounding templateo the customary tenure regime itsel which needs legal support; the act that at essence this is no more andno less than community based land tenure administration, a oundation in tune with modern demands ordevolved and democratic land governance and upon which modern customary owners can slowly buildmore modern customary practice.

An equally important requirement is to make real the mantra that ormalization procedures must be simpleand cheap to enable mass uptake and sustained use. Reversion into expensive and remote systems toooten still occurs in so-called reormist administration programmes. The act remains that while desirable in

Owning communities

could mortgage one part

o their oten substantial

commons to raise loans

or community basedincome-generating

activities such as maize

grinding mills and

without risking amily

livelihoods.


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principle, registration based upon a cadastral title system may never be applicable or sustainable at scale,and or the vast majority o small estates like rural arms and houses, is unnecessary. Legal recognition odetailed boundary description, lodged in community land registers, may be more than sucient, and landlaw redrated accordingly.

Recommended Steps to ImplementationImplementation o simple customary land security measures that target vulnerable properties and build uponwhat exists in cost-eective ways deserve more application and testing. The ollowing ten step model mayserve as example:-1. Following determination o interest, a technical acilitator calls representatives o rural communities to a

meeting to decide the basis upon which they will identiy and operate their customary domains, with avillage basis generally preerred.

2. A representative boundary committee rom each community is ormed.Each works with neighbouring committees to agree the exact locationo their shared boundary. This is done by walking every step o theboundary and recording the description agreed by the two committees.Expert acilitation is available to promote compromises. GPS readings

are taken to enable maps to be produced. It is the detailed boundarydescription however that is put beore ull community meetings or theirapproval.

3. Where the customary domain has been routinely used by outsiders (e.g.pastoralists) with acknowledged customary access rights to products orareas, these outsiders are consulted and their support secured. In theprocess these access rights are renegotiated to clariy their nature asaccess, not ownership rights and to establish a new management regimeagreeable to both parties.

4. Each community is assisted to orm a community land council (withseasonal user representation as appropriate) to serve both as trusteeowner o the root title o the domain on behal o the community andas the local land authority over the domain, responsible or zoning,regulation o access and land use, procedures or transer and theestablishment in due course o simple registers o ownership andtransaction o properties within the domain. Community membersdetermine beorehand how they want the council constituted, with whatproportion o elected and traditional leadership and the proceduresthrough which land councillors will be accountable to itsel and how decisions will be implemented.Annual training o land councillors is useul, gradually increasing their capacity and scope o theiradministrative mandate.

5. Policy and legal support is secured, ideally ounded upon at least a reasonable degree o trialimplementation in the eld, to ensure that legal constructs and procedures will be workable and easilyreplicated and sustained. New legislation may outline how customary land authorities operate andprovide or registration o community domains and registers o common properties within them, and in

due course individual properties on a demand basis.6. Communal Domain registers are established at local government level and simple procedures or thisdisseminated. Final registration o Communal Domains takes place only ater boundaries have beennally agreed and the community land council is up and running. Registration o the council as thelawul local land authority is part o the process.

7. Councils use simple land-use planning to divide domains into zonesor example, current armingzones, potential investment zones, community pastures, and protected areasand they devise and putinto eect any needed regulations or each zone.

8. Where restitution o wrongully appropriated customary lands is constitutionally provided or, communityland councils are assisted to identiy aected areas and to make those claims, seeking direct restitutionand/or compensation as appropriate. Where such lands are under lease or licence to outsiders, rental

Community members

determine beorehand

how they want the

council constituted,

with what proportion o

elected and traditional

leadership and the

procedures through

which land councillors

will be accountable to

itsel and how decisions

will be implemented.


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income thereater accrues to the council, with rigorous nancial accountability measures instituted as aprerequisite.

9. Formal identication and registration o common properties in the domain as the private groupowned property o all community members is encouraged where these remain vulnerable to wronguloccupation or appropriation by Government agencies or others, including by local elites or corrupt

leaders. Registration o these conservation areas (e.g. Community Forest, Pasture or River Reserves) mayprovide double protection.10. Reworked and modernized community based regimes are put in place or resolving disputes between

and within communities, with appeal to higher levels.

Conclusion

Such a process may restore and develop the right and practice o communities to create and control theirown tenure norms. It begins by inducing the critical mass o popular ownership that mobilizes the eort andsustains implementation. Conficting land interests are unpacked by the parties themselves, making it morelikely that compromises and agreements will be upheld. Finally, the process claries customary rights andaccess rights, while providing relevant local institutions or their modern administration.

Further reading:

L. Alden Wily. Forthcoming. The Role o Customary Property Rights in the Legal Disempowerment andEmpowerment o the Poor: A Case Study rom Sudan. International Sudan Studies Conerence, Bergen,Norway, 6-8 April 2006.D. Kirkpatrick. 2005. Best Practice Options or the Legal Recognition o Customary Tenure. Developmentand Change 36(3):449-475.B. Cousins. Forthcoming. Arican Land Tenure and the Failure o Titling. Forum or Development Studies.

J. Bruce and S. Migot-Adholla (eds). 1994. Searching or Land Tenure Security in Arica. The World Bank.

Liz Alden Wily ([email protected])Liz Alden Wily is an Independent Land Tenure Advisor


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Biting.the.Bullet:.How.to.Secure.Access.to.

Drylands.Resources.for.Multiple.UsersEsther Mwangi and Stephan Dohrn

Instead o the allocation o rights, tenure regulation needs to center on

rules and mechanisms or regulating access and use among multiple

interests.

Drylands Users and Access Rights

Close to 1 billion people worldwide depend directly on drylands or their livelihoods. Because o theirvariable and erratic climate and political and economic marginalization, drylands have some o the highest

incidents o poverty, including the worlds poorest women and men. Users o dryland resourcesincludingpastoralists, sedentary armers, hunter-gatherers, and reugeesneed to be assured o appropriate andeective access to sustain their diverse livelihood strategies in their risky shared environments.

Pastoral and sedentary production systems that coexist in drylands very oten use common propertyarrangements to manage their access to and use o natural resources. But despite their history ocomplementary interactions, pastoralists and sedentary armers increasingly ace conficting claims over landand other natural resources. Past policy interventions and existing regulatory rameworks have not oeredlasting solutions to problems relating to land tenure and resource access or multiple and dierentiateddrylands resource users. These users require fexibility o access; they adopt opportunistic strategies to copewith the uncertain conditions in which they operate.

It now seems to be recognized that drylands resources need to be secured or their users against some ormo threat, oten external. So is the idea that some legal solution premised on local customary rules may beappropriate and eective in protecting group rights. These realizations are inormed by earlier top-down,state-led approaches o individualization or nationalization that privileged some customary users over others,undermined authority systems regulating resource access, and opened up opportunities or non-customaryusers and immigrants to appropriate resources.

However, in seeking legal solutions or recognition and strengthening o group rights, there is increasingempirical evidence that threats to tenure security may also originate rom within the groups themselveswith womens rights being particularly vulnerable. The question thus remains o how resources are to beallocated, accessed, used, and managed within groups. Another concern is not only how tenure security canbe enhanced or mulitple resource users, but also how it can be strengthened or multiple uses o drylandsresources.

A Focus on Process

Among a range o innovations tackling these problems are legal reorms that seek to adapt customary andlocal systems to wider statutory obligations. However, key concerns are the oversimpliying o complexitiesand the exclusion o secondary and temporary users in rural areas. In such multiuse environments,processrather than contentshould be the ocus o policymakers. Instead o the allocation o rights, tenureregulation needs to center on rules and mechanisms or regulating access and use among multiple interests.

Attempts to secure access or multiple users in variable drylands environments should identiy rameworksor negotiated confict resolution. This requires crating rules rom the ground up, in addition to a more


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generalized or generic identication o rights. Elite capture and exclusion o women and young peoplecontinue to pose signicant challenges in decentralized processes.

Local actors are the competent authorities to determine the orms o insecurities that exist and levelso appropriate action that might alleviate them. To secure access options to drylands resources and

opportunities or dierentiated local actors, negotiated processes musthave meaning in local settings, and elite infuence must be strategicallyconronted. Eorts to reorm rights systems may yield little benet i pushedtoo soon, too quickly, or without appropriate synchronization betweendierent components o institutional change. These eorts will be moreeective i timing matches local priorities and schedules, allowing continuouslearning and integration between changes in policy, regulation, and practice.

Negotiating Access Rights

Attempts to support tenure policies must try to reconcile legitimacy, legality,and practice o tenure rights. To create legitimacy on the ground requirespromotion and support or dialogue and negotiation among resource users.

This works best within a legal ramework that centers on process, leavingdetails to local people and enabling them to adapt their local systemsto specic external and internal threats to tenure security. Law thus setsthe principles and procedures o accountable, transparent, and inclusivenegotiation and dialogue. Even then, the state would need to unction as acapable mediator and enorcer.

The process may also benet rom an explicit description o what constitutessecurity o access or dierent categories o users or dierent resources, atdierent times and scales. Seeking answers to the undamental question owhat security means, or whom, and against what threats may well open upa range o useul policy options or securing land access rights. Unpackingtenure insecurity may also provide some clues on how powerul interests

may be countered or the benet o a wider segment o society. For rights to be meaningully secured, there isneed to identiy the nature and sources o threats that create insecurities.

Addressing accountable, inclusive, and transparent procedures or negotiating and arbitrating disputes atlocal levels provides an avenue out o the need to record and legalize all manner o rights and negotiations.These should based on local, salient values o what is air and equitable. Recent attempts at decentralizingauthority and unctions to local and district levels have remained incomplete, thus strengthening local elitesand increasing the vulnerability o those already marginalized. A system o incentives is required to ensurethat central and local institutions are more responsive and accountable to local populations as a whole.

There are, however, limitations: negotiation may not be practicable, either due to prior injustices or unequalcapacities o parties, and the elite may capture the process. Though the states theoretical role as the ultimate

guarantor o property rights and arbiter o conficts is airly clear, the complement o institutions and actorsthat comprise the state have proved incapable (and perhaps unwilling) to perorm this role eectively. Astates institutional weakness is bound to lead to the ailure o mediation, without which there can be noconsensus and no general ramework o dynamic relations between actors in rural development.

Attempts to support

tenure policies must try

to reconcile legitimacy,

legality, and practice o

tenure rights.To create

legitimacy on the ground

requires promotion and

support or dialogue

and negotiation among

resource users.


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Further reading:

Esther Mwangi and Stephan Dohrn. Forthcoming. Biting the Bullet: How to Secure Access to DrylandsResources or Multiple Users. CAPRi Working Paper. Washington DC: IFPRI. 2006.Lavigne-Dellville, P., H. Ouedraogo and C.Toulmin. 2004. Land Tenure Dynamics andGovernmentIntervention: Land Tenure Policy in West Arica: Current Issues, Debate and Innovation. In: GRAF/GRET/IIED,Making Land Rights More Secure: International Workshop or Researchers and Policy Makers. Ouagadougou,March 19-21, 2002. http://www.iied.org/pubs/pd/ull/9251IIED.pdKristine Juul and Christian Lund (eds). 2002. Negotiating Property in Arica. Portsmouth,NH: Heinemann.Georey Payne (ed), 2002. Land, Rights and Innovation: Improving Tenure Security or the Urban Poor.London: ITDG.Maryam Niamir-Fuller (ed.) 1999. Managing Mobility in Arican Rangelands: The Legitimization oTranshumance. Filey, UK: IT Publications.

Esther Mwangi([email protected])Esther Mwangi is a Postdoctoral Fellow with the CAPRi research program

Stephan Dohrn([email protected])

Stephan Dohrn is a Research Analyst with the CAPRi research program


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Decentralization:.An.Enabling.Policy.for.

Local.Land.ManagementHubert M.G. Ouedraogo

Decentralization presents a clear opportunity or promoting democracy and

encouraging sustainable development, but to work, certain conditions must

be ulflled, and it must be understood as an ongoing process.

Introduction

Decentralization has been ongoing in West Arica since the early 1970s. Whether seen as the means oconsolidating the newly independent state, imposed by donors, or an outgrowth o grassroots development

eorts, decentralization was intended to create space or local actors and institutions to become involved indecisionmaking or development. It works by transerring power to elected local authorities or local oces ocentral government. In West Arica, decentralization is not seen as merely a political and institutional reorm,it is also considered part o the development process. Behind decentralization are the objective to promoteeconomic and social development and the assumption that local government is able to more ecientlymobilize unds and natural resources.

The Benefts o Decentralization in Regard to Land Rights

A replacement or the ailure o state land monopoly: For a long period most West Arican states claimedexclusive ownership o land. However, customary land laws were the reality in the eld: access to land,tenure security mechanisms, and land dispute resolution all remained tied to local customs and traditions. Asa consequence, there is a disconnect between land laws and local practices, and land laws are not eectivein rural areas.

More eective land management: Democratic decentralization means that the central government transersauthority as well as resources. In regard to land, transer o authority means that local government must havethe capacity to manage land and deliver titles. Such capacity brings land management closer to the peopleand gives them the chance to benet rom the rights the land law provides. Land can be a very importantasset to local government, generating signicant nancial resources through sustainable land managementand taxation. In Niger, decentralized land management through local land commissions recognizescustomary land rights and delivers titles to poor armers. The procedures are simple, the title delivery costsare aordable, and each local government decides the level o taxes that can be sustained.

Flexibility and legal pluralism: The power to adopt regulations that refect local realities and cultural norms

is essential. Dierent approaches have been experimented with in the context o land management.Communities have created local rules or natural resource management or promoted local conventionswhere stakeholders make arrangements or access to land and natural resources or or local land transactions.Another approach is local land dispute resolution that builds on the knowledge and legitimacy o localinstitutions such as traditional chies, heads o lineages, and religious authorities.

Improved participation and local governance: Decentralization also relies on the participation o civilsociety. By opening more democratic spaces or CSOs, decentralization reduces the discretionary powers obureaucrats and reduces the risk o corruption.


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Constraints and Risks o Decentralization

While decentralization is a more democratic way to manage natural resources and a more ecient way topromote local development, it is not a panacea.

Lack o local capacity and resources: Transer o responsibility is eective only i there is the capacity toassume responsibility. Unortunately, in most countries, there is a severe lack o local capacity. Most people,including members o local governments, cannot read, write, or even understand the countrys ociallanguage. In land management, local authorities need to be able to survey land, maintain records andmanage local land administration.

Poverty is also a constraint. How can local authorities raise unds rom poor populations? I there are nounds or decentralization, the process will not proceed. All decentralization codes declare that the centralgovernment must transer resources to local governments to enable them assume their new responsibilities.However, central governments are distrustul and even hostile when askedabout transerring resources, as they ace many ununded national prioritiessuch as education and health.

Confict between local and national interests: Local interests are generallyshort term: local governments need resources quickly to nanceinrastructure. On the other hand, central governmentresponsible or thewhole nation and uture generationsis more strongly concerned with thesustainable use o natural resources.

Corruption: There is a strong risk that transer o authority and resources maylead to a transer o corruption as well. In many rural areas, the population isuneducated and CSOs are still poorly organized. In such conditions, electedlocal governments could easily all prey to corrupt practices.

Exclusion: The transer o authority may create the paradox o promoting notions o indigenousness, whichcan lead to the vulnerability or marginalization o non-indigenous individuals or groups. For example,

pastoralist groups are oten denied equitable access to natural resources such as water and grazing areasbased on the manipulation o the principle o indigenousness.

Institutional conusion: Rural areas in Arica are well known or overlapping local institutions: there aretraditional institutions, those created by central governments to promote better organization o ruralproducers, donor-unded projects acting as their own interlocutors, and nally elected local government.Regarding land, there may be traditional chies, land and natural resource management commissions andcommittees, rural producer organizations, and local governments, all claiming jurisdiction. Such institutionalconusion has created the local practice o institutional shopping, or choosing the institution that may makethe decision most avorable to the petitioner.

How Can It Be Made to Work?

Decentralization presents a clear opportunity or promoting democracy and encouraging sustainabledevelopment, but to work, certain conditions much be ullled, and it must be understood as an ongoingprocess.

Decentralization brings communities decisionmaking power in their own development. But how shoulda community be dened in an Arican rural area? In Burkina, the experience o decentralized naturalresource management started at the village level, but it rapidly became apparent that this was not alwaysthe best place to manage activities. For example, a local orest may need to be managed by several villagesbordering it. The experience o decentralized natural resource management in Burkina then moved romvillage to inter-village areas that shared social and cultural characteristics. Although it was dicult to

How can local

authorities raise undsrom poor populations?

I there are no unds

or decentralization,

the process will not

proceed.


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capture administratively, the concept proved more adaptable. Unortunately, when decentralization wasimplemented, the choice was made to create articial boundaries, and today rural communes in Burkina aretoo large.

I local institutions do not work well, decentralization will not work. It

is dicult to create new institutions and make them work eciently ordecentralization at the same time. A shortcut would be to build the capacityo existing institutions that are perceived as legitimate, that is, that appear tooperate in line with the will and expectations o the people. Legitimacy is notstatic, however, and thereore it is important that decentralization be built onthe basis o democratic local institutions that unction under the principles ogood governance.

Decentralization will not work i local government does not have appropriateresources. Central governments must demonstrate their commitment todecentralization through the transer o resources. A second dimension oresource mobilization at the local level is the development o the capacity togenerate nancial resources rom sustainable natural resource management.

Conclusion

Decentralization can be an opportunity or local development and or more secure land rights or the poorpeople. But or decentralization to work, the constraints and risks inherent to such a complex reorm mustbe anticipated. Successul decentralization needs to build on ongoing local processes; it needs to invite theparticipation o CSOs. It also needs to cooperate with central government through sound deconcentrationprocess: decentralization is not implemented against the state, but in collaboration with the state.

Further reading:

Jesse Ribot. 2004. Waiting or Democracy: The politics o choice in natural resource decentralization.Washington DC: World Resources Institute. http://governance.wri.org/pubs_pd.cm?PubID=3821Hubert Ouedraogo. 2003. Decentralization and Local Governance: Experiences rom Francophone West

Arica. Public Administration and Development 23 (1): 97-103.GRAF. 2003. Challenges or a viable decentralisation process in rural Burkina Faso. KIT Bulletin, 356.

Hubert Ouedraogo ([email protected])Hubert Ouedraogo is Coordinator LandNet West Arica

I local institutions

do not work well,

decentralization

will not work. It is

dicult to create new

institutions and make

them work eciently or

decentralization at the

same time.


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Will.Formalizing.Property.Rights.Reduce.

Poverty.in.South.Africas.Second

Economy?.Questioning.the.Mythologies.of.Hernando.de.SotoBen Cousins, Tessa Cousins, Donna Hornby, Rosalie Kingwill, Lauren Royston, and Warren Smit

We must build a better understanding o the complexity o multiple,

inormal tenures within the extra-legal sector and acknowledge that they

are undamentally dierent rom the individualized, exclusive, private

property systems o Western capitalism.

Much more attention should be paid to supporting existing social practices

that have widespread legitimacy rather than expensive solutions that try to

replace them.

Introduction

South Arica has among the worlds highest levels o inequality, and the gap between rich and poor iswidening. According to some analysts, a key contributor is the absence o ormal property rights to assetsowned by the poor. According to economist Hernando de Soto, capitalism can be made to work or the

poor through ormalizing their property rights in houses, land, and small businesses. This approach resonatesstrongly in South Arica, where private property is dominant and works well or those who inhabit the rsteconomy. Yet there is strong opposition rom NGOs, social movements, and others to de Sotos single-minded ocus on individual title, ormalization, and credit as solutions to poverty. This brie uses evidencerom South Arica to suggest that many o de Sotos policy prescriptions may be inappropriate orand evenharmul tothe poorest and most vulnerable.

De Soto and His Critics

De Sotos The Mystery o Capital, ocuses on ormal recognition o extra-legal property. He argues that thepoor hold huge assets in the orm o houses, buildings, land, and small businesses. The problem is that theholdings are not adequately documented and thus cannot readily be turned into capital, cannot be traded

outside o narrow local circles, cannot be used as collateral or a loan and cannot be used as a shareagainst an investment. In the West, by contrast, every building, piece o land, and equipment is documentedas part o a vast hidden process that endows them with the potential to act as capital and create additionalvalue. What is required across the developing world, de Soto says, is a program to capitalize the poor bylegalizing their extra-legal property.

While appealing to many, de Sotos ideas and policy prescriptions, according to a signicant body o scholarsand land reorm practitioners, oversimpliy the inormal economy and associated property relations: heassumes that ormal property means individual, private property; he does not adequately acknowledge thatnumerous titling programs have ailed to produce the results he predicts; he ails to acknowledge the dierentprinciples that oten inorm extralegal property systems in rural areas and inormal settlements; and he skirtsthe challenges in adjusting legal systems to accommodate other property systems.


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Securing Property Rights in Postapartheid South AricaJoe Slovo Park, Cape TownIn 1990 a group o households occupied part o a well-located, vacant piece o land in Cape Town thatwas owned by a parastatal company. Ater years o negotiation, the Joe Slovo Park housing project wasimplemented, building 936 houses using a housing subsidy. In line with national policy, the orm o tenure

granted was individual ownership. However, ownership was registered in the name o only one householdmember and the allocation process was biased. New property owners became liable or paying rates andservice charges that many were unable to aord. Despite the titling program, almost all property sales wereinormal, and some who legally owned houses were unable to occupy them, as street committees haddecided who should be the occupier. Some socioeconomic impacts have been negative: inormal economicactivities have been displaced and social networks were disrupted as the allocation o plots ignored kinshipties and social networks. The case study reveals that individual ownership can sometimes result in a decreasein de acto security o tenure and a negative impact on socioeconomic status. It also provides clear evidenceo processes o inormal resale and reversion to inormality.

Ekuthuleni, KwaZulu-NatalIn this rural community o 224 households, residents live on state-registered land that they wish to ormallyacquire through land reorm and hold in collective ownership. Most households survive on welare grants

supplemented with subsistence agriculture and natural resources harvested rom the commons. Communitymembers say they want to hold land in common to prevent strangers rom coming in and causing confictsand because they cannot aord maintaining individual title. Ekuthuleni clearly reveals the limitations o thedominant system o property rights, which requires that an individual rights holder be identied; describesthe exclusive rights o the rights holder; and depicts the boundaries o land parcels through beaconing andgeo-reerencing. But in Ekuthuleni property ownership is never exclusive to one person and is always shared

by a changing number o amily members. The closest current law can cometo accommodating this would be a amily trust, but even that would notcapture the nature, content, or governance o amily- and community-basedland rights. The Ekuthuleni case reveals that there is oten a undamentalincompatibility between property rights in community-based systems and therequirements o ormal property. Formalization o property rights transorms

and alters both the nature o the rights and the social relations and identitiesthat underlie them.

Alternative Approaches

Formalization via integration into the existing system o private property isnot the answer or large numbers o people. Much more attention should bepaid to supporting existing social practices that have widespread legitimacyrather than expensive solutions that try to replace them. Some eatures o

extra-legal property regimes ound in South Aricas inormal settlements and communal areas provide a keyto the solutions: their social embeddedness; the importance o land and housing as assets that help securelivelihoods; the layered and relative nature o rights; and the fexible character o boundaries. Approachesbased on Western property regimes ail to acknowledge and respond to these eatures.

Second, more attention should be ocused on the complex relationship between property rights,development, and state investment and administration. In many developing countries the state lacks thecapacity to provide the poor with ormal housing and associated inrastructure and services. Attempts toaddress the problem through one-o solutions involving high levels o state investment need to give way to amore nuanced, incremental, and integrated development approach that would extend inrastructure, services,and economic opportunity linked to legal recognition o diverse tenure orms.

Third, the enormous inequities in property ownership inherited rom the apartheid era remain a undamentalconstraint on the livelihoods o the poor. Poverty reduction policies must thereore include a central ocus onlarge-scale redistribution programs.

Formalization o property

rights transorms and

alters both the natrue othe rights and the social

relations and identities

that underlie them.


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Fourth, land reorm laws that seek to secure the rights o occupiers without necessarily transerring ullownership to them remain important but are proving inadequate. Property rights o people on arms need tobe strengthened, and government needs to allocate resources or their protection. Similar arguments can bemade or people subject to evictions rom urban and peri-urban land.

For these suggestions to take root, reorm o the dominant legal andadministrative rameworks or holding and regulating property are urgentlyrequired, so that the principles that govern extra-legal property in rural andurban inormal settlements can receive legal recognition and practical support.This suggests that tenure reorm requires a more rigorous and ar-reachingapproach than the term ormalization implies.

Conclusion

Policy makers must resist the temptation to seek simplistic solutions topoverty. Poverty reduction eorts o the scale required in South Arica andelsewhere require a great deal more than the securing o property rights inthe manner prescribed. Tenu

mwangi, esther 2006 'land rights for african development-- from knowledge to action' capri, cgiar,...

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