Region: Sub-Saharan Africa (SSA)
Country: Botswana, Mozambique, Tanzania
Topic: Legal Framework
Keywords: Legal Framework *, Legislation and Laws **
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Statutory recognition of customary land rights in Africa
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EXECUTIVE SUMMARY
In Africa, the issue of how best to increase the land tenure security of the poor and protect the land holdings of rural communities has been brought to the fore due to increasing land scarcity caused by population growth, environmental degradation, climate change, and violent conflict. This scarcity is being exacerbated by wealthy nations and private investors who are increasingly seeking to acquire large tracts of land in Africa for agroindustrial enterprises and forestry and mineral exploitation, among other uses. In many cases, governments grant such concessions with the intent of fuelling national commercial, agricultural or industrial growth and contributing to improvements in gross domestic product and local living conditions. However, many of these land concessions include lands upon which whole villages live; in many such cases, the concessions dispossess rural communities and deprive them of access to resources vital to their livelihoods and economic survival. Unfortunately, rural communities often have little power to contest such grants. This powerlessness is often intensified by the fact that rural communities often operate under customary law and have no formal legal title to their lands or documentation of their claims.
This study seeks to provide guidance on how best to recognize and protect the land rights of the rural poor. It is founded upon the notion that protecting and enforcing the land claims of rural Africans may be best done by passing laws that elevate existing customary land claims up into nations' formal legal frameworks and make customary land rights equal in weight and validity to documented land claims. The study takes as its starting point that rather than lawmakers inventing theoretical new legal frameworks or borrowing legal models from western nations, land tenure systems must be based in the lived realities of the people, as practiced daily on the ground.
The goal is to create a stable investment environment in which communities can maintain their land claims and prosper and flourish alongside investment and national economic development. This study examines the statutory recognition of customary land tenure in Botswana, Mozambique and Tanzania, which were chosen as case studies because of the diverse approaches to the issue they represent. Botswana's Tribal Land Act (1968) established a system of regional land boards and transferred the land administration and management powers of customary leaders to the boards, which originally included both customary leaders and state officials among their members. It also codified the customary practices of the Tswana, and elevated their customary land rights and practices up into national legislation. Mozambique's Lei de Terras (1997) decrees that anyone living or working on land for ten years in good faith has an automatic de jure "right of use and benefit" over that land, and allows for community lands to be registered as a whole, thus formalizing communal customary rights.
Communities may continue to administer and manage their lands according to custom, with the caveat that such practices should not contravene the national constitution. Tanzania's Village Land Act (1999) makes the village both the primary land-holding unit and the centre of local land administration, management, record-keeping, and land dispute resolution. It also makes customarily-held land rights equal to formally-granted land rights, and explicitly protects the land rights of vulnerable groups. In doing so, it creates a hybrid of customary and codified law – allowing the village to dictate how things are done but holding it to strictly-defined legal mandates.
Through a close examination of the text and implementation of the land laws of these three countries, this publication investigates various over-arching issues related to statutory recognition of customary land rights, notably:
- How best to integrate statutory and customary legal systems so as to most effectively strengthen tenure security, foster national and community prosperity, and take steps to extend all of the protections, rights and responsibilities inherent in the national legal system to rural communities;
- How to balance what happens on the ground, organically, against what the state views as "useful" or "valuable" and wants to preserve, enforce or encourage from above;
- How to write a land law that merges the practices of the people with the objectives of the state and arrives at solutions that will simultaneously: be used, adopted and successfully implemented on the ground; advance state interests; advance community interests; and advance individual interests;
- The factors that impact a law's long-term, effective and equitable implementation.
Ref #: fao_statutory_recognition_africa
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