A survey of indigenous land tenure in sub-Saharan Africa

John Nelson
Policy Advisor, Forest Peoples Programme, and Projects Coordinator, Forest Peoples Project.

A review of research on African indigenous land tenure helps to illustrate how customary and community-based systems for managing land rights can be incompatible with the laws of some African countries. Although the vast majority of people in sub-Saharan Africa hold land under customary law, their rights to do so are almost never recognized under existing national laws. The consequences of this include growing land insecurity among indigenous communities such as pastoralists and hunter-gatherers, who already face serious social marginalization and pressures from external agricultural, logging, mining and conservation interests. This disjuncture between state laws and customary, often communal, rules over lands is contributing to significant long-term negative impacts on the livelihood security of indigenous sub-Saharan communities, especially with the absence of the reforming processes required to bolster recognition for customary law in formal legal texts. The article concludes by emphasizing the need to reform laws and their application through the “re-institutionalization” of customary arrangements into codified law. This will tend to reduce uncertainty for indigenous communities, if they are able to participate fully with wider civil society in discussions regarding the allocation and management of lands over which they have strong claims.

INTRODUCTION

Over the past decades there has been a rapid growth in the literature on African land tenure. However, there are relatively few studies on the land tenure of African hunter-gatherers in particular and other self-identified African indigenous peoples. The point made by Bohannan and Bohannan (1968) that “The literature on land tenure is one of the largest - and one of the poorest - in all of social and legal science” apparently still holds true for indigenous groups in sub-Saharan Africa. The weak literature base is particularly true for seminomadic forest dwellers in Central Africa, whose landholding practices have rarely been studied in any detail. However, there are notable exceptions (Turnbull, 1965, 1983; Biesbrouck, 1999; Bahuchet, Grenard and de Maret, 2001). In addition, some data are available on customary tenure arrangements of San bushmen from southern Africa, even though many effectively lost their customary rights many years ago and are now seeking to reclaim them (Hitchcock and Holm, 1993; Chennells, 2001; Wiley and Mbaya, 2001). There has also been extensive work to assess land reform initiatives, along with steps being undertaken to codify customary landholding systems, develop new land policies and implement registration systems (e.g. Downs and Reyna, 1988; Bruce and Migot-Adholla, 1994; Lavigne-Delville, 2000; Toulmin and Quan, 2000; Wiley and Mbaya, 2001). These and other sources form the basis for this review of customary land tenure in sub-Saharan Africa and the state’s role in defining legal entitlements to land, the practice and persistence of customary tenure arrangements, and the links between indigenous land tenure and livelihood security. My aim is to highlight key characteristics of the discourse on African land tenure, to highlight the gaps in knowledge which mitigate that discourse and to identify the direction of future changes required to address indigenous communities’ rights to their lands adequately.

Much of the research on African land tenure has been rooted in the agricultural sector. This is hardly surprising, given the huge amount of work that has been done under various forms of economic development promoted since the days of colonialism. However, many African indigenous peoples do not engage in agriculture, or agriculture is not their primary concern. For example, some Baka Pygmy families may have small garden plots, which they cultivate to provide grains and vegetables used to supplement their mainly hunting and gathering diet; seminomadic pastoralists may not cultivate at all; and most Rwandan Batwa are landless, so any agriculture they engage in is generally on other peoples’ lands in return for cash or payments in kind. This review also cites extensive work that has been done to synthesize the available knowledge on customary and “modern” tenure, as the development and research community has begun to appreciate fully the importance of understanding the longterm impacts of landholding systems on household food security, sustainable rural livelihoods and poverty reduction in general.

CUSTOMARY LAND TENURE

Customary land tenure remains the predominant model of landholding in rural Africa today and for most or all African indigenous peoples it has been the dominant system used to assert rights to land (e.g. Bauhuchet, Grenard and de Maret, 2001: p. 87). An old-fashioned view is that the manifestation of customary land tenure systems in Africa was governed mainly by structural factors, the “productive mix”, with population density being a critical factor guiding the evolution of land-use systems (see Tiffen, Mortimore and Gichuki [1994] for an overview of the debates). However, more recently it has been accepted that “land concentration is not necessarily the most important or even a major determinant of African agricultural performance”, and that “under customary law access to rights in land was often based upon social identity” (Berry, 1988, 1993). Indeed, many of these customary regimes are regional and interethnic and provide differentiated rights of tenure or access to different social groups.

Reviews of the common features where “customary tenure principles and local regulatory systems prevail” in Africa overwhelmingly emphasize the importance of social status in gaining and securing access to natural resources, and the social aspect of securing and holding land rights under customary systems is critical for indigenous peoples (after Lavigne-Delville, 2000: p. 98). Location, culture, status and production system all affect how most rural Africans access and maintain property rights. These rights are often overlain across land farmed or otherwise used by others. The “bundle of sticks”^[2] analogy holds: rights can be distributed across many different parcels of land for different purposes, and even though most of the rights cannot be sold, they are often divisible, individual rights transferring easily between individuals or groups. This system of validation and exchange is underpinned by the maintenance of social relations between the different groups who are involved, including indigenous peoples, many of whom face social discrimination from society and the state.

THE ROOTS OF STATE LAW

State land law in Africa springs from several European legal traditions, which came into force during the colonial era, and which take legal precedence over customary principles in the eyes of states, even though most landholding and transfer in rural Africa has continued to be arbitrated by customary authorities. Briefly, three main juridical traditions form the basis for state land law across sub-Saharan Africa, and their geographical application is directly related to the systems imposed by the colonial powers (after Lynch and Talbott, 1993; Lavigne-Delville, 2000; McAuslan, 2000).

These include:

• English Common Law in countries such as Kenya, Malawi, the United Republic of Tanzania, Uganda and Zambia, which incorporates principles of divided rights of ownership and the separation of what is owned from the physical substance of the land itself;

• Roman Dutch Law in countries including Lesotho, Namibia, South Africa, Swaziland and Zimbabwe, whose development, like Old English Law, draws from precedent, and which does not recognize divided rights of ownership;

• laws in countries drawing from Civil Law Traditions, covering countries such as Burkina Faso, Mauritania, Côte d’Ivoire, Mali, Madagascar, the Niger, Senegal and much of French-speaking Central Africa, which do not rely heavily on judicial precedent, relying more on a deductive approach flowing from the concept of an ultimate owner of land (“dominium”), retained by the state.

In all of these countries the “new” legal traditions of the colonizers were imposed and took precedence over the customary systems that were in operation and, in many instances, vested ultimate ownership of land in the state, with an emphasis on individual titling as a corollary. Although the customary systems have continued to be the most important framework for accessing land by rural people, the effect of these laws on indigenous peoples’ access to land and security of tenure can be significant. In many African countries a duel set of rules applies: those set out in juridical texts by the formal state, and those that are applied by the majority of its citizens. In Africa the gap between these two systems is often profound, with important implications for marginalized indigenous communities (see www.forestpeoples.org).

CUSTOMARY LAND TENURE IN PRACTICE

Most land held under African customary tenure rules can be considered to be “common property”, in the sense that land is considered the property of defined collectives and is subject to, and managed in accordance with, detailed customary laws that regulate access by groups and individuals (Bromley and Cernea, 1989; Bruce and Migot-Adholla, 1994). The notion is not without perils, however, as in some instances “common property regimes” have been used as an excuse by administrators to treat indigenous peoples’ lands as “common pool resources”^[3] and taken over by the state to be allocated to other interests, including land speculators, conservation organizations and logging interests (FPP, 2001; Sang, 2003).

The label “communality” has sometimes been used by those in power to imply a lack of advancement, and therefore labelling land as “communal” made it easier to justify its expropriation (Chanock, 1991). However, the reality is that African communal tenure is usually mixed, individual and communal at same time (Cousins, 2000; Wiley and Mbaya, 2001). In fact, in most parts of Africa it should be assumed that a non-state institution such as a family or local community group may assert use and access rights to all surrounding land (Dembner, 1998; Bahuchet, Grenard and de Maret, 2001), contrary to the view that when the population is sparse, land rights may be non-existent (e.g. Goody, 1980). In many of these so-called “sparsely populated” places, such as in the Kalahari ecosystem or the Congo Basin, the rights of hunter-gatherer groups have been totally ignored by states because these communities rarely make the kind of investments in land generally recognized by governments (e.g. through the mise en valeur principle under the French-speaking system) and they are politically weak. Pastoralists face a similar problem over their rights to grazing lands. This raises a key question that is particularly urgent for marginalized groups, namely, how can they assert rights to lands that they do not “evidently” occupy?

For example, the Bagyeli of Cameroon (see Box on Cameroon) have a low population density and are discriminated against, and their land claims are not well defined within the general community (Nelson, Kenrick and Jackson, 2001). The Cameroon Government has not officially validated the customary resource rights of the Bagyeli because of their political marginalization, because their claims to land overlap those of their more numerous neighbours and because the state still claims overall authority for the allocation of all forest rights. Hence, with the advent of external pressures (construction of an oil pipeline) their rights to sland have become insecure, as is evidenced by recent losses (Nelson, Kenrick and Jackson, 2001). The lack of state-sanctioned legitimacy is an important problem faced by indigenous peoples who lay claims to land that they traditionally occupy. Because of the weak social status of indigenous peoples, and the fact that states have expropriated the ultimate authority for allocating lands over which these people claim hunting, gathering, grazing and cultivation rights without due recognition of customary practices, many indigenous peoples consider that their rights to the lands where they live are very insecure under the application of current law. This is true despite the fact that, in most cases, they were in possession of the land when others arrived. This pressure also includes apparently benign or beneficial initiatives by conservation agencies to protect their forests from outside exploitation. Recent work documenting the impact of conservation areas on indigenous communities in Central Africa has shown categorically the threat to dispossession of indigenous rights resulting from conservation (Kai Schmidt-Soltau, 2003; Nelson and Hossack, 2003; CED, 2004).

The irony of this situation is that, under almost all African customary systems, it is well understood that occupancy is generally the key to “ownership” (Biebuyck, 1963) and land is allocated by those claiming prior occupancy through lineages and clans to individuals, a “hierarchy of estates” (Gluckman, 1941) linked together by affinity to local arbitration authorities. These systems have traditionally included indigenous communities through various context-specific social mechanisms. When rights are customarily recognized, under most customary arrangements in sub-Saharan Africa “ownership” by first occupants does not mean that the land can be sold - alienation rights are generally denied to individuals (e.g. Netting, 1968; Goody, 1980; Freudenberger, 1993; Bahuchet, Grenard and de Maret, 2001) and only rights of use are easily transferable (e.g. Netting, 1968; Hill, 1977). Within these systems it is important for landholders to reaffirm a recognition of who in that system holds absolute “title” by, for example, paying tribute of some form. In addition, land rights systems overlay one another. For example, hunter-gatherer ygmy communities are often allowed to hunt on farmers’ croplands, and even cultivate small plots, farmers have access to areas of forests for hunting, (Dembner, 998; Bahuchet, Grenard and de Maret, 2001)^[4] and pastoralists in the Sahel may be allowed to take their livestock on to farmers’ lands in order to graze upon crop stubble (e.g. Mortimore, 1997; Wiley and Mbaya, 2001). Finally, change is central to African customary systems of land allocation, the “historical dynamism of resource access” (Hill, 1977; Berry, 1988, 1993; Shipton and Goheen, 1992; Mortimore, 1997: p. 5), and this flexibility within customary systems is one of the reasons that they have endured.

THE PERSISTENCE OF CUSTOMARY LAND TENURE REGIMES

In precolonial times, access rights to land in Africa was usually contingent upon membership to social groups and on allegiance to traditional authorities (Gluckman, 1941; Allen, 1965; Berry, 1993)^[5]. Early evidence indicated these systems were slow to be replaced even under colonial pressures, and this has continued to the present day (Hill, 1977; Nafziger, 1977; Bruce, 1988: p. 23). This is a key reason for the continuing importance within customary systems of social status in securing and holding land rights^[6], a factor of central importance to the longterm livelihoods of indigenous communities. The progressive social marginalization that indigenous communities are now facing in Africa is not distinct from their progressive livelihood insecurity.

Land scarcity does have a role to play in changes that have taken place with respect to human - land ratios. For example, using data on rural cultivators, it has been observed that increasing land scarcity leads to a reduction in the genealogical depth and size of access groups (kin) and/ or increased stress on inheritance rights, and that restrictions on access to and concentration of rights in land are becoming more common in Africa (Biebuyck, 1963; Netting, 1968; Downs and Reyna, 1988; Bruce and Migot-Adholla, 1994; Platteau, 2000; Toulmin and Quan, 2000; Mortimore et al., 2001). There is also ample evidence to suggest that increasing transfers of land are taking place along with the increasing individualization of landholdings and sales of land (Feder and Noronha, 1987; Berry, 1988; Bruce and Migot-Adholla, 1994). The pressures from this quarter on African indigenous peoples and their lands have also been recorded, although similar trends towards the individualization of land rights are not well documented among these groups. All these processes of change and evolution are taking place within indigenous, customary and communitybased frameworks still operating across most of Africa, in spite of attempts to replace or transform them via the various land reform measures that have been put in place over the past century.

ATTEMPTS AT LAND REFORM

Land reform^[7] has been a key concern of state administrators since colonial times. In the 1930s, Lord Hailey, noting a change to landholding in East Africa towards individualization, advocated limited reforms, including encouragement for boundary demarcation and encouragement to “native tribunals to penalise trespass”, Hailey, 1938: p. 876) and accepted that some form of survey would be needed to define a “presumptive” title. Since then there have been numerous reforms put in place across Africa, including the individualization of tenure^[8],^[9] for example via titling, the cooperativization of landholdings,^[10] the reform of inheritance rules,^[11] the nationalization and bureaucratization of land administration^[12] and, most importantly for indigenous peoples, re-institutionalization (Chanock, 1991; Bruce and Migot-Adholla, 1994; Pickney and Kimuyu, 1994; McAuslan, 2000).

Re-institutionalization is “reform that emphasises change in the institutions that administer the tenure system (changes in the specific substantive rules may or may not be involved), while preserving the element of kin group or other community control” (Bruce, 1988: p. 37). It offers an important approach for indigenous peoples’ own strategies to strengthen their hold on their lands. The outcome of these types of processes includes the institution of “family lands”, for example in Nigeria and Ghana, and, previously, the empowerment of Ethiopian communities to codify their own land tenure systems, an innovation eliminated during the revolution. In Botswana, ‘tribal land boards” were created while indigenous tenure systems were left intact and, upon achieving independence, customary law was integrated into state law, although no provision was made for registering communal lands (Wiley and Mbaya, 2001: p. 8) - essential to indigenous peoples’ livelihoods - and chiefs were stripped of the land allocation powers (Hitchcock and Holm, 1993). In spite of these and other gains in much of Africa, progress on this front in Central Africa has so far been extremely slow, due in large part to the wealth of natural resources, the extreme centralization of decisionmaking and a lack of accountability, which characterizes much of the forest and mining sectors.

The promotion of state control of land allocation in Africa, coupled with the persistence of customary systems, has led in various countries to a situation characterized by a “legal pluralism”, which is strongly associated with uncertainty among land users because locally legitimate rights are often not legally recognized (Lavigne-Delville, 2000). One of the best documented cases is that of the Niger, whose government after 1960 took a stand against the customary system, limiting the powers of chiefs to allocate land in their areas, although the system continued to operate de facto. By 1970 the government began to integrate the formal and customary systems into one legal framework called the “Code Rurale” (Lund, 1993). In this framework the government took on a key role in conflict arbitration, and increased responsibilities for “other” lands, especially terres sans maîtres^[13], uncultivated rural land, and forests. The process of developing this continued throughout the 1980s, and is still ongoing. Within this framework there is a strong impulsion for titling, but because titling directly contradicts local customary systems, and the government is not trusted, the customary rules generally continue to apply (Mortimore et al., 2001). The increased uncertainty experienced by the Niger’s rural people stems partly from the fact that there is now a state-sanctioned avenue through which communities’ rights to the land they use may be challenged in the courts. These courts generally operate according to assumptions broadly based around the mise en valeur concept, which provides for usufructory rights, and state titling, still the exception in rural sub- Saharan Africa.

For all of the reforms mentioned the customary arrangements of hunters and gatherers generally have been neglected, and although pastoralists have received some protection in the United Republic of Tanzania, and women are gaining recognition for their rights all over Africa, ceilings on size of landholdings are also being imposed (Wiley and Mbaya, 2001), and in the language of the legislation the interests of marginal groups and women are not well represented (McAuslan, 2000: p. 92).

Re-institutionalization, or the integration of received (de jure) and indigenous (de facto) law, is widely recognized as a way to go forward with new reforms, although so far substantive integration in Africa has been rare. Wiley and Mbaya (2001: p. 15) point out that, with the exception of Botswana, customary tenure has only been permissively recognized and not provided with statutory machinery, but “for the majority of citizens in the region (east and southern Africa), the fate of customary tenure is the issue of land reform that most directly affects them”. Mozambique, Uganda and the United Republic of Tanzania all recognize customary land rights as lawful landholding and, in Uganda, indigenous Batwa near Bwindi National Park are already making claims on this basis (FPP, 2001)^[14]. In tropical Africa a re-interpretation of land laws is possible if communities are provided with the opportunity to secure fair and exercisable roles within statutory systems that recognize their respective rights, responsibilities and livelihoods.

LIVELIHOOD SECURITY FOR ALL

A cornerstone of rural livelihood security, and thus of poverty reduction, is security of access to natural resources. For indigenous peoples in sub-Saharan Africa this is particularly important, and African women in particular are affected by decreasing security brought about by changing tenure relationships.

Under many customary systems most rights for women are derived through men, and for most women ownership of land is rare, but becoming more common (Migot-Adholla and John, 1994). Inheritance of land is also rare for most, and marriage remains a key avenue for securing access to land. In some places, for example the cocoa-growing areas of Cameroon, where primary rights had always been held by men, women’s rights are becoming more secure for some plots of land (Guyer, 1980). In Rwanda, 65 percent of the population is female as a result of the excess of male deaths during the recent genocide. Many household heads are females, but many widows have found themselves unable to access their husbands’ land. In some cases they have opted to return to their own families’ land. Women in informal and polygamous marriages have particular difficulty in asserting claims to land. A

In spite of these gains in Rwanda, the rights of many indigenous women in other sub-Saharan Africa countries are still “invisible” to outsiders, and are often subservient to those of men. Women, together with the wider indigenous community, face a pattern of discrimination that reinforces their weaknesses in negotiating for and protecting their rights within existing customary systems, especially when these systems are juxtaposed against reforming moves by the state that can make it harder for these communities to gain or retain their communal land rights (e.g. Saul, 1993). These pressures mean that securing an immediate livelihood for their family usually takes precedence over longer-term strategies by indigenous men and women to promote their communities’ land and resource rights.

The idea that individual titling can provide adequate security^[15] of possession for African indigenous peoples runs counter to what we now know about the effects of individual titling schemes on these vulnerable groups (e.g. Shipton and Goheen, 1992; Sjaastad and Bromley, 1997). We now know that the promotion of individual land titling may cause more harm than good, leading to discrimination against subordinate rights-holders (or at least those perceived to be subordinate) - the urban poor, women, elders, people who rely on herding (including pastoralists, hunters, gatherers and other minorities) and, as in the Niger, the multiplicity of arbitration authorities can increase local insecurity (Shipton and Goheen, 1992; Lavigne-Delville, 2000; Platteau, 2000: pp. 66 - 67; Wiley and Mbaya, 2001). The fact that security of rights to land under African communal systems is usually based upon social identity (e.g. Anthony et al., 1979),^[16] and that the rules of social classification may be manipulated to suit certain groups (Berry, 1993), means that administrators must be careful when they start talking about fundamental reforms of the social relations governing communities’ access to land, the main source of indigenous peoples’ livelihoods.

The social and economic marginalization faced by many indigenous communities is often exacerbated by their distance from centres of power, both physically and politically. For example, the customary rights to the lands of Central African indigenous communities should be protected, but across this region conservation laws imposed by states generally preclude any subsistence activities within parks - even if parks overlap the traditional lands of huntergatherers, as is clearly the case for many existing parks, and for larger “landscapes” now targeted for extended conservation under the Congo Basin Forest Partnership. Across this region, community livelihoods are therefore under pressure from an unlikely source - the incredible biodiversity of their forests and the agencies sent there to protect them.

It is the view of many that numerous laws establishing protected areas are incompatible with international norms of indigenous peoples rights (MacKay, 2002), and there is growing agreement inside and outside sub-Saharan Africa that reform of conservation legislation is required. The global conservation community has agreed that strong guidelines to protect indigenous communities should be put in force, as again indicated at the World Parks Congress in September 2003.

REFORMING THE FUTURE

This brief survey raises a number of issues for policy-makers and researchers concerned with indigenous peoples’ land tenure in sub-Saharan Africa. Indigenous peoples in Africa facing discrimination and increasingly insecure tenure relationships will need to be supported to balance their relationships with their neighbours and governments in order to protect their interests (Chanock, 1991). Land security is central to livelihood security and therefore to poverty reduction, and most indigenous peoples in Africa hold land through customary principles. Researchers and policy-makers seeking to address poverty concerns need to take this as a starting point for their investigations of future reforms.

Indigenous peoples will also need to address questions about how to validate their claims to land and resource rights. Documentation of their customary arrangements, by community mapping, historical research or through the recording of oral history, is needed if they are to enter into constructive negotiation with states - and before they are totally disenfranchised because of the pressures bearing upon them and wider society as populations grow, towns extend and lands become more scarce.

A central platform of reforms now being proposed should emphasize the importance of community-based solutions, perhaps facilitated by outsiders, and a re-institutionalization of indigenous land tenure, without replacing existing customary systems (Hitchcock and Holm, 1993; Platteau, 2000). Governments should look to ways to legalize customary arrangements that protect indigenous peoples’ rights. The integration of received and indigenous law will be a corollary of this, and states will have to recognize community-based tenure and customary rights in law. This is possible - if governments are able to overcome the political obstacles now preventing the institutional reforms that are needed to address the chronic and growing poverty and land insecurity that indigenous communities now face in Africa.

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