Tenure reform in Southern Africa: experiences and innovations

1
Tenure reform in Southern Africa experiences and
innovations

• Ben Cousins
• Programme for Land and Agrarian Studies, UWC
• UNDP/CAPRi/ILC workshop on Dryland Tenure
• Feb/March 2005

2
Key issues for land policy

• Address the legacies of colonialism and
  apartheid
• dispossession and allocation of land to settler
  farmers
• undermining of peasant agriculture
• creation of cheap labour reserves
• indirect rule via traditional leaders/chiefs
• second class status of indigenous land rights
  (recognised as permits of certificates of
  occupation)
• insecure rights of farm workers and labour
  tenants
• vulnerability of womens rights
• inadequate or decayed land administration systems

3
Key challenges for tenure policy in communal
areas

• Eliminate discrimination and second class
  status
• Secure rights and ensure they are consistent with
  constitutional principles (equality, etc)
• Create democratic (ie accountable) land
  administration regimes that give effect to
  legally-defined rights and obligations
• Establish regimes of rights and administration
  that facilitate investment and economic growth
• Address rights that are overlapping as a result
  of dispossession and forced removals

4
Key questions for tenure reform policyin
communal areas

• Secure rights in communal areas but in what
  form?
• upgrade to individual ownership?
• family ownership?
• group ownership?
• recognise customary rights?
• relationship between individual and group?
• Content of these rights?
• Record and register these rights? How?
• Survey and record land parcels as cadastres?

5
Key questions for tenure reform policyin
communal areas

• Relationship between group systems and private
  ownership rights and administration systems?
• harmonised?
• part of a menu of options for people to choose
  from?
• allow conversion/upgrading?
• Relationship between administrative bodies and
  rights holders?
• Roles, powers, status of traditional leaders?
• Gender equality?
• Family rights?

6
South African debates

• Point of departure the constitutional imperative
• Bill of Rights (Sec 25, 6)
• A person or community whose tenure of land is
  legally insecure as a result of past racially
  discriminatory laws or practices is entitled, to
  the extent provided by an Act of Parliament,
  either to tenure which is legally secure or to
  comparable redress
• Government required to legislate appropriately
  and effectively

7
Communal Land Rights Bill, 2002

• Interim Protection of Informal Land Rights Act,
  1996 gt temporary measure to secure rights on
  communal land and in informal settlements
• Land Rights Bill drafted in 1997-1999, but put
  aside
• CLRB of 2002 published for public comment,
  immediately aroused controversy
• Underlying paradigm transfer of title, from
  state to communities
• Complex procedures for a rights enquiry, adoption
  of community rules, registration of rules,
  agreement of boundaries, election of land admin
  committees
• On adoption of rules, communities registered as
  juristic persons

8
Communal Land Rights Bill, 2002

• Minister to receive rights enquiry report, and
  then determine boundaries, content of new order
  rights, communal general plan
• Deeds of Communal Land Right issued to members
• Land administration committee elected, mandated
  to draw up rules, allocate land, keep records,
  resolve disputes (but without dedicated support
  from government?)
• Traditional leaders on committee ex officio, but
  no more than 25 of members
• Relationship between land admin committee and
  local government bodies unclear

9
Communal Land Rights Act, 2004

• Last minute changes in Cabinet, just before
  hearings
• Land administration committees will be
  traditional councils wherever these exist
• Traditional councils established in terms of a
  new law on traditional leadership (TLGFA of
  2004), and based on transformed Tribal
  Authorities
• Transformation 40 elected members and 30
  women
• One year to transform, but no sanctions if not
  done
• In response to critique, married women to have
  rights vested jointly with husbands

10
Critiques of the CLRA

• Key flaw is paradigm of transfer of freehold
  title, requiring survey of boundaries (cf group
  ranches in Kenya)
• Which level of community will take ownership?
  (Likely to be Tribal Authority areas, gt20,000
  people)
• Likely to exacerbate boundary and jurisdictional
  disputes
• Privatisation will insulate poor rural areas
  from local government development programmes
• Rights holders have no choice over composition of
  land administration committee wherever
  traditional councils exist
• Implementation is likely to be slowed by
  cumbersome procedures, boundary disputes,
  inadequate state capacity

11
Traditional leaders and land

• Communities likely to coincide with Tribal
  Authority areas, with problems for groups placed
  under tribal jurisdiction during apartheid era
• Holomisa land, people, traditional leaders are
  inextricably bound together
• Claassens control over land provides
  traditional leaders with guaranteed power and
  resource base, regardless of whether or not their
  subjects support them it cuts the nexus that
  keeps them responsive to their subjects
• Murray deal-making and party politics avoiding
  pre-election violence in KwaZulu-Natal command
  over the rural vote service delivery in rural
  areas

12
Constitutional court challenge to CLRA

• Womens land rights still not adequately secured
  (eg. unmarried women, women other than spouses)
• Extent and content of rights not adequately
  defined, subject to Ministerial determination
• Family and individual rights in communal
  systems not adequately recognised or secured
• Powers of traditional councils undermine rights
  of communities holding land through Communal
  Property Associations
• Procedural issue sec 76 Bill (for provincial
  debate) not sec 75 Bill (national debate)?

13
The underlying problem?

• Fundamental mismatch between paradigm of private
  ownership by the group, (with use rights to
  individual members of the group), and
• The guiding principles, norms and values of the
  African commons (Okoth-Ogendo 2002)

14
The African commons

• Huge diversity and variability
• Variously termed customary, traditional,
  indigenous communal, or community-based
  land tenure
• Includes both individual/family property rights,
  and common property (ie.the term communal can
  be misleading)
• Often inaccurate to describe the existing systems
  as customary or traditional
• Most land occupied and used by communities in
  Africa is owned by the state

15
The resilience of the African commons

• Many changes since pre-colonial times due to
  expropriation, suppression, subversion and
  manipulation by the colonial (and post-colonial)
  state
• This includes codification to suit the interests
  of the powerful (eg. men, elders, chiefs) and the
  imposition of pliable chiefs
• But some core features have proved resilient
  despite suppression and subversion
• Indigenous norms and structures continue to
  operate as social and cultural facts, and
  frustrate the implementation of state law
  (Okoth-Ogendo 2002)
• The gap between de jure rights (the law) and de
  facto realities (what actually exists) is often
  huge

16
The African commonsunderlying principles,
norms, values

• Rights derived from membership of social units
  (birth, affiliation, transactions) entitlements
  of citizenship
• Managed by a social hierarchy (eg. the family,
  the clan, the community)
• Which allocates resources, and makes management
  decisions, on the basis of scale, need and
  function (eg. grazing, cropping)
• Individual families have well-defined rights of
  use to cropland, transmitted across generations
  through succession rules
• Members have rights to common property resources
• Decisions not all made collectively, but by
  reference to common values and principles

17
Other underlying principles

• Inclusivity the right not to be excluded
  rather than the right to exclude (Peters,
  Macpherson)
• Flexibility in membership and boundaries
  (Mortimore)
• Negotiability, due to the central role of social
  relations and identity (Berry)
• Rights are shared, relative and nested within
  social units operative at different scales
• A reality subject to shifts in relative balance
  of power between levels of authority, between
  authority structures and subjects, between social
  actors (eg men and women)

18
The authority/control dimension

• Distinguish access (rights, powers) from
  control (authority)
• Structures of authority
• Guarantee access
• Regulate common property use
• Redistributes access when required
• Helps resolves disputes
• Occur at nested levels of socio-political
  organisation
• Are NOT the source of (allocated) rights
• (Source Okoth-Ogendo 1989)

19
Alternative approaches?

• Statutory, protected rights, vested in
  individual members of groups, to secure
  occupation and use and give them stronger legal
  status
• Possible content of rights defined in law but
  specifics decided and recorded locally, in
  accordance with norms and choices
• Require consistency with constitutional
  principles (eg gender equality)
• State support for rights holders, and for
  democratic, community-based institutions to keep
  records and regulate common property use
• Leave community boundaries flexible and subject
  to regulated negotiation, depending on land use
  and decision

20
Alternative approaches?

• Mozambiques (Reform) Land Law of 1997
  Tanzanias Village Land Act of 1999
• These recognize and protect existing occupation
  and use of communal land, and give them the
  status of property rights, without requiring
  their conversion to Western notions of private
  ownership
• Facilitated by underlying ownership of all land
  by the state
• Strong rights are then vested in the people who
  occupy and use land law enables the rights
  holders to further define and record these rights
  at the local level
• Ongoing balancing act between group and
  individual rights, at different levels of social
  organization, is facilitated

21
Key principles of African tenure systems
Socially embedded social relations/identities
central

• Control
• Guarantees access
• Regulates common property use
• Redistributes access
• Resolves disputes
• Nested levels of socio-political
• organisation
• tribe
• ward
• village

• Access
• From accepted membership of
• social units
• Acquired via birth, affiliation,
• transactions
• Relative
• Shared
• Nested social units of
• community
• kinship networks
• household

Land uses Common Property ------------- Residen
tial Arable
Social, political and resource boundaries
flexible and negotiated
Dynamic and variable Balance of power shifts
over time
Dynamic and variable rights shift over time
Politically embedded power relations and
processes central