AEGIS ECAS 2007 - View abstract

Panel	36. Between customs and state law: The dynamics of local law in sub-Saharan Africa
Paper ID	383
Author(s)	Asperen, Paul van
Paper	View paper (PDF)
Abstract	Key issue in this article is security of land tenure. Land tenure can be described as the perceived right to hold land rather than the simple fact of holding land. Land tenure is concerned with the rights, restrictions, and responsibilities people have with respect to the land (FIG, 1996). Tenure security concerns a perception of (un)certainty to have and to keep adequate rights, for an adequate period, adequately assured/protected (VVI, 2006). The key assumption is that security of tenure is required to make land contribute to economic development. However, it is difficult to assess the level of tenure security, as it is a perception from the right holder. In many African countries, multiple land tenure regimes exist. They can be defined as the simultaneous existence of multiple normative constructions of property rights in a social organization (Dekker, 2005). In general, before colonization, the legal system, including land law, was based on customary, unwritten, law. Customary law relates to a particular tribe or clan. Colonization introduced state law, based on law of the colonial powers, which concerns the entire country. Concerning property, statutory land law was often only applicable in urban areas and rural areas with high agricultural potential. In the remaining areas customary land law was still applicable. Geographically spoken, land is legally subdivided in State Land and Customary Land. The existence of multiple tenure regimes has effects on tenure security. Statutory land tenure is often assumed to have a higher level of tenure security. Recent research has proven that customary law in itself is secure as well. However, due to commercialization and urbanization, tenure security tends to decrease, especially for the local people. During the last decades of the twentieth century, land titling, often pushed by donor support, was seen as the solution to improve tenure security for all land right holders. Titling projects often failed, one of the reasons being the lack of harmonisation with the customary laws. Recently, new forms of titling are being introduced in several countries, aiming to support economic development and to protect the interests of the local people. Negative side-effects can be patchwork and forum-shopping. The paper discusses in detail the recent developments in Zambia, Ghana and Mozambique concerning the exisisting tenure regimes. Zambia has a dual tenure system with limited possibilities for harmonization. Conversion of customary tenure into state tenure often leads to denial of other (‘secondary’) customary rights. Ghana aims at harmonization through the establishments of customary land secretariats, responsible for the issue of Customary Certificates. In Mozambique, harmonization is enforced through community land registration. These developments are relatively new, progress in these projects is generally slow. Therefore, major improvements on land tenure security cannot be expected on the short term. However, it is clear that multiple tenure regimes will continue to exists and that negative effects should be avoided whenever possible.

Effects of multiple land tenure regimes on tenure security: African cases