Customary Land Tenure

There is good reason to believe that customary tenure arrangements are conducive to community and household resilience in Sub-Saharan Africa. Without landed property of any kind, poor communities and households are less able to absorb shocks associated with loss of livelihood in the formal and informal wage economies through which rural households augment their modest farming incomes. Communal area homesteads are a means for investing in housing and livestock assets that constitute important forms of savings, particularly in times of financial and environmental stress. The ability to accumulate these and other assets, and to transfer them intergenerationally, would be diminished for many poor families if land could only be secured through purchase.

But customary rights are under threat in much of the continent, due in part to neoclassical economic critiques that deem them a constraint to economic investment and growth, despite considerable evidence that these critiques have little empirical basis. Customary tenure is also threatened by local and international interests that seize land for agricultural and other projects. These threats may be partially mitigated by treating customary land tenure arrangements as systems of economic, social, and cultural rights analogous to those promoted by modern international rights conventions.

Key Attributes Of Customary Tenure

Customary tenure systems share several land governance principles. For purposes of the present discussion, the most significant common feature is that an individual’s or family’s right to hold land and other natural resources in a particular area is based on bonafide membership in the social or political community — ethnic group, clan, or family — that holds the land in common trust. Household and individual rights, once attained, are normally secure and inheritable. Accompanying a household’s right to land for housing and crop production are rights to use common pastures for grazing and forests for timber and nontimber forest products. Customary tenure systems normally prohibit land sales, especially to nongroup members, because sales would alienate land from community control and ownership. Non-native members of the community may gain rights to land through marriage to resident rights holders.

The Rights Framework

Customary rights are not usually formally recorded in official registries. This is deemed unnecessary, as local traditional and civic authorities are usually effective repositories of the memory of ownership. Sales are prohibited. Transfer of ownership through inheritance is infrequent, and only family members familiar to the community and local authorities are permitted to inherit land. In other words, written records are not necessary to affirm transfers to the limited number of widely known qualified beneficiaries.

Customary tenure systems have proven capable of accommodating farmers from outside the land-holding community, though on precise and limited terms. It is common for customary rights holders to rent or lease land to outside farmers, in short- and long-term arrangements. However, accommodating persons from outside the land-holding community stops short of sanctioning sales to outsiders. To do so would diminish the ability of a customary system to deliver land to community members as an economic and social right into the future.

The Lay Of The Land In Africa

Roughly 90 percent of Sub-Saharan Africa’s land not dedicated to national parks and reserves and private land is administered under customary tenure. Despite its pervasiveness as the principal institutional arrangement for providing access to secure land rights, customary tenure often has little or weak recognition in statutory law. The underlying statutory tenure of most areas administered under customary rules is founded on various forms of public or state land. Public lands are the principal source of land affected by government- or elite-brokered deals to transfer land rights to outside investors with little or no compensation to previous customary holders.

More transparent, deliberate efforts to convert customary rights to freehold rights as a matter of good public policy, justified by presumed benefits to economic growth and investment, usually meet with considerable local resistance. Botswana’s Tribal Grazing Land Policy, launched in 1975, is a notable example. Ethiopia has embarked on a national process, led by regional states, of certifying rural and urban land rights because of growing problems of land conflict, but sale of land remains prohibited by the constitution and the program enjoys widespread public support. Colonial and post-colonial land and agricultural policies have generally treated customary tenure as inferior to private, so-called freehold tenures, and customary tenure institutions have in some countries atrophied, though the area of land administered under communal tenure has remained more or less constant or has in some cases—such as Botswana—increased since independence.

In 20th-century South Africa, legal restrictions on black farmer participation in production for market (such as the 1913 Land Act), the creation of rural Bantustans or black-only territories under apartheid, and growing demands by mines and other industries for low-wage labor transformed communal areas from locations of primary household production to what became known as “labor reserves.” While agricultural production in communal areas today constitutes a modest proportion of overall household income, the communal homestead continues to have vital social and economic significance to low-income people in South Africa and in the region overall.

In an uncertain economic environment, a customary land right has proven for many poor people to be one of the few reliable assets over which they have secure control, thereby increasing their resilience to economic shocks and stressors. Rural land holdings may be small, grazing land may be overstocked and degraded, and the farming enterprise may be under-capitalized, but the customary land right enables the family to build and maintain a home and engage in at least a limited range of agriculturally productive activities. Customary rights also ensure membership in a community of extended family—similarly poor, perhaps, but also sources of vital social capital and mutual assistance.

Land Rights Go Unprotected

The two principal international conventions addressing economic, social, and cultural rights are the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (CESCR). Article 25 of the Universal Declaration recognizes a number of economic and social rights under the rubric of a right to an adequate standard of living:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, medical care, necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.

The CESCR, ratified by the United Nations (UN) General Assembly in January 1976, gives more definition to economic, social, and cultural rights, and the obligations of endorsing states to observe and promote them. It protects labor rights, the right to social security, the right to family life, the right to health, and the right to free education. Of particular relevance to the present discussion is article 11, which affirms a right to an adequate standard of living:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Significantly, this article makes no explicit provision for a right to land. Critics have pointed out that realization of some of the rights mandated by the covenant, such as adequate food and housing, are in many settings contingent on the people concerned having rights to land and other natural resources. Land is a key productive asset, and for households in rural Africa without secure land rights, the tasks of producing adequate food and securing a home are made infinitely more difficult.

In 1991, the UN Commission on Economic, Social, and Cultural Rights, with 15 years of experience in promoting the covenant behind it, reviewed progress made in implementing the covenant’s provisions and subsequently expanded the definition of some of the rights. Discussion of the right to adequate housing emphasized that an important characteristic of adequate housing is “legal security of tenure:”

Legal security of tenure. Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing, and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure, which guarantees legal protection against forced eviction, harassment, and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.

Still, though recognizing the importance of a “degree of security of tenure,” including tenure defined as “occupation of land or property,” the addendum does not unambiguously embrace the right to land with secure tenure as a goal. Critics have pointed out that the addendum focuses on due process in eviction procedures, not on delivering tenure security as a right. In the view of Elizabeth Wickeri and Anil Kalhan:¹

Whereas international legal instruments have not adequately considered the considerable role that land plays in the international human rights framework it is clear with even a brief analysis that land is a fundamental element in access to numerous international human rights. Where land policies are carried out by both governmental and private bodies, a number of underlying rights can be affected, even where governments are acting under eminent domain or engaging in rural development programs, and states must consider and abide by their international human rights obligations.

A Path Forward

I have noted above the vulnerabilities faced by customary rights holders due to weak constitutional and legal protections of customary rights in many Sub-Saharan African countries. Colonial powers tended to legally declare all land public or state land, allowing customary tenure systems to operate in areas where commercial interests were weak, and subject to arbitrary conversion of land rights to commercial concessions, forest reserves, and freehold tenure where it suited them. Post-colonial governments tended to perpetuate this approach.

Botswana stands out as a country that embraced customary tenure as the dominant means for delivering secure land rights to its citizens shortly after independence in 1966. The 1968 Tribal Land Act established the rights to land of all Batswana as a right of citizenship. The act provided that land for housing and cropland was to be made available free of charge in home areas of family and social (or tribal) affiliation. Landowners also have rights to graze on communal pastures in the areas.

The act made oversight of land administration the responsibility of the national government, and put the administration of land rights under civic land boards, removing traditional authorities from their historic roles as land trustees. Apart from fairly limited roles in resolving land disputes, chiefs have no substantive responsibilities for land tenure-related matters. In the 45 years since passage of the act, the Government of Botswana has introduced a number of mainly administrative reforms that have given customary right holders the right to convert their tenure to long-term lease rights and to sublet those rights to others. Markets in lease rights have recently been sanctioned, subject to reviews that protect community interests in accommodating, as far as possible, the customary land requirements of future generations of community members.

Botswana gives constitutional and statutory recognition to customary tenure, and has become something of a model, among other sources, for a tenure reform movement under way across Sub-Saharan Africa whose principal attributes are constitutional and legislative reforms that extend statutory recognition to customary tenure systems[^2]. Kenya’s 2009 National Land Policy extends statutory recognition and status to customary tenure equal to that provided under freehold and state ownership. The proposed South Sudan National Land Policy, endorsed in February 2013 by the country’s Council of Ministers, similarly gives equal statutory recognition to customary tenure, freehold tenure, and land held by the state. Mozambique and Zambia have passed similar legislation.

Statutory recognition of customary tenure has the potential to afford customary right holders many economic and social advantages. Of immediate benefit would be the potential to arrest the growing phenomenon of the state selling or leasing land administered under customary tenure but owned by the state to large-scale outside investors. This rapid growth in “land-grabbing” has had particularly severe effects on smallholders. As the rightful owners of community land statutorily, communities would have the right to enter into land deals directly, if they so wish, with lease revenues benefiting community funds and institutions.

Statutory recognition of community land would also enable customary right holders to resist incremental conversion of community resources used in common, such as pasture lands and forests, into private or state land. Statutory recognition also has the potential benefit of bringing customary land administration under the ambit of provisions in civil law giving equal rights to women on matters of property ownership, inheritance, and use.

There is considerable anecdotal evidence that poor rural and urban households with access to customary tenure rights are better able to absorb the kinds of economic and environmental shocks to which the poor are especially vulnerable. Households across Southern Africa that maintain homesteads in rural communal areas while sending labor to urban-based wage jobs are able to derive incomes from a greater variety of sources and recalibrate how labor is deployed as rural and urban opportunities wax and wane over time. The result is greater economic resilience in the face of the multitudes of uncertainties that households face.

Empirical research is needed to test these arguments. To the extent that research validates the claim that preserving customary arrangements supports household resilience and well-being, the policy task would be less about creating marketable land rights that don’t exist, and more about deepening rights that already do.

Takeaways

Anecdotal evidence and cogent arguments suggest that customary land rights are conducive to household resilience.
With customary tenure under attack in much of Africa, it makes sense for policy makers interested in promoting resilience to support such tenure arrangements — the “rights” framework is a promising means for doing so.
It will be important to validate the anecdotal case for customary tenure with empirical research.

Footnotes

Wickeri, Elisabeth, and Anil Kalhan. 2010. “Land Rights Issues in International Human Rights Law.” Malaysian Journal on Human Rights, 4, 10: 25. ↩