Improving tenure security for the poor in Africa - Kenya, Tanzania and Uganda

Legal Empowerment of the Poor Working Paper #3

This paper identifies the key issues of land tenure security for the rural poor, vulnerable and marginalized in the East African countries of Kenya, Tanzania and Uganda. The report finds that most of these issues are common across the three countries, both in terms of the challenges that the communities face and imperatives that inform policy interventions and responses. In all three countries, plural systems operate side by side and, in all three, there is a tendency for policy and legislative frameworks to privilege the modern systems of property relations over traditional ones, even as national rhetoric indicates recognition and support for the latter.

Formalization is not new. It has been a reality of property relations in the three countries since the advent of colonization. The paper concludes that formalization has not always benefited the rural poor. Instead, an elite minority has tended to benefit from reforms while the majority of the poor and vulnerable end up worse off as institutions and systems that supported their livelihoods and gave them a sense of security are marginalized and replaced by modern institutions.

The paper presents a number of examples of formalization efforts in the region, identifies their key aspects and analyses their impacts. For example, the “group ranch” experience in Kenya is presented to demonstrate the challenges that formalization poses in terms of implementation and its consequences. Group ranches have, in the end, been individualized with devastating consequences for local communities. This example illustrates the need to view formalization within the broad context of national policy direction. The paper contends that formalization can only succeed and be useful for the rural poor if the policy framework does not see it as a transition to individualization.

The Commission for Legal Empowerment of the Poor (CLEP) provides an opportunity and a forum for interrogating key aspects of land tenure in rural areas. It should benefit from previous analyses of rural property rights and scaling-up experiences from across East Africa that have provided a tenure security framework outside the formal legal framework. The challenge in this regard is determining how to create innovative policy and legal instruments that recognize and formalize tenure in rural areas without necessarily individualizing them.

The paper argues that formalization can only succeed within a context of governance in which there is a culture of legality. This culture cannot be imposed through an initiative. It has to evolve over time as a function of dynamics and processes within society. Only through such an evolution can the social context be established that makes formalization work, and only when that context is right can formalization produce the benefits that are attributed to it.

The paper takes issue with the general assumption that one formalization regime can be appropriate for all situations and all land-based production and livelihood systems. It suggests that the diversity of land use and production systems has to be reflected in formalization processes and secured in legal frameworks. In this connection, the paper advocates for support to the structured evolution of customary land laws so that space can be provided for them in statutory systems.

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