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.
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 states 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  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 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).
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 dIvoire, 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 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) 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.
Three main groups of Pygmy peoples live in Cameroon. The Bagyeli/Bakola live in the southwestern region around Lolodorf, Bipindi and Kribi and extend over the border to Gabon and Equatorial Guinea. They are associated with Bulu, Ngoumba, Fang and Bassa Bantu farmers. The Bagyeli live in the northern part of this area, and the Bakola are farther to the south. The total population is about 3 500 - 4 000. The Baka, also known as the Bangombe and Babinga, numbering 40 000 - 50 000, live in the southern and southeastern areas towards the borders with Gabon, the Republic of the Congo and the Central African Republic. They are associated with Bangando, Bakwele, Konanbemebe, Vonvon, Zime and Dabjui farmers. In general the pygmy groups in Cameroon face severe marginalization and discrimination.
Since the late nineteenth century the land rights of all rural forest dwellers in Cameroon have not figured in the major decisions made by the rulers concerning forest lands. All unoccupied or undeveloped lands (vacant et sans maîtres) became the property of the state, and many lands were then opened for timber exploitation, which closed those areas for hunting by Pygmies. Meanwhile, local populations managed lands through community-based customary institutions, elaborated through agreements between the earliest inhabitants, the Pygmies, and the sedentary communities of farmers with whom they have long been associated. However, since colonialism, especially since France became the dominant colonial power early in the last century, all lands have been considered under national law to be the property of the state, even though almost all land is held under customary principles. Exceptions have been made for titled lands - only 2.3 percent of Cameroons lands have been titled since 1974, principally benefiting the elite - and cultivated and developed lands, whose owners are provided with inheritable usufructory rights as long as the government do not want to use the land for another purpose. Title, however, is not provided. Apart from the granting of alienable usufruct rights in forests, no provision is made in state law for huntergatherers to become identified with a definite territory where they produce and so gain inheritable rights, even though they are generally recognized by their neighbours to be the first inhabitants of the forest, their livelihoods are forest-based and they are heavily implicated in the trade of forest products with their more sedentary neighbours. Many rights to forest resources overlap with agricultural lands, and this forms the basis for much interaction between hunter-gatherers and farmers under customary principles.
The inevitable conflicts between local aspirations and national laws were meant to be addressed through 1994 reforms of the forest laws, which formalized the involvement of local people in forest management. Both the council forests (forêts communales) and especially the communal forests (forêts du domaine nationale) allowed for inputs by the local population into local forest management plans. Within this legislation there is also the provision for communities to apply for community forests for their own commercial exploitation, of up to 5 000 ha, which communities (which must be legalized entities) are allowed to manage for themselves on a 25- year renewable allocation. However, this legislation is not targeted at hunter-gatherers, despite the 1995 Wildlife Decrees mention of community hunting zones (territoire de chasse communautaire), and the gap between hunting rights as set out in the legislation and traditional hunting rights as they are actually practised by forest dwellers is excessively wide.
Some sedentary agricultural communities have begun to go through the cumbersome and expensive application process to secure rights to these areas for themselves through the community forest route. Many key components of this legislation are open to a high decree of local administrative interpretation, adding yet another level of external patronage and insecurity, especially since the forest services in Cameroon (Ministry for Environment and Forests, MINEF) have very low credibility in the eyes of locals. The insecurity that Pygmy groups in Cameroon have long faced with respect to their land is being perpetuated through their unequal access to the law and the fact that their hunting and gathering way of life is not recognized as a valid livelihood system. As the weakest members of a complex and heterogeneous social system in which overlapping rights are the norm, they risk having their rights extinguished by local communities dominated by agricultural and logging interests. Conservation projects are a key component of the system, and are rapidly stripping away Baka and Bagyeli rights to key hunting and gathering grounds. In many areas external commercial poaching pressure is leading to restrictions against hunting and gathering that are totally incompatible with hunter-gatherer livelihoods, including in forests upon which they have long relied.
Source: Lulink and Kenrick (1998), Biesbrouck (1999), Lavigne-Delville (2000), Brown and Schreckenberg (2001), Djeumo (2001), Egbe (2001) and Jackson (2001).
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). 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, 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 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, for example via titling, the cooperativization of landholdings, the reform of inheritance rules, the nationalization and bureaucratization of land administration and, most importantly for indigenous peoples, re-institutionalization (Chanock, 1991; Bruce and Migot-Adholla, 1994; Pickney and Kimuyu, 1994; McAuslan, 2000).
San in Botswana, Namibia and South Africa
San from southern African are by tradition huntergatherers, inhabiting lands within the modern countries of Angola, Botswana, Namibia, South Africa and Zimbabwe. They share in common a history of dispossession from their land during the eighteenth and nineteenth centuries, driven by the quest for land, water and diamonds, and persistent discrimination from society and governments, which has kept them with a standard of living that is consistently lower than their compatriots. In Botswana, Namibia and South Africa, they are all now involved in processes to reclaim their land rights from the state, largely with promising results. In Botswana and Namibia, the Ju/hoansi San have established locally owned and managed community organizations that promote their interests, and in Namibia they have become actively involved in community-based natural resources management (CBNRM) and have gained secure possession of their lands through the government-sanctioned conservancy programme, in which Ju/hoansi were able to set up new communities based on traditional arrangements. In South Africa in 1994 the =Khomani San began to claim back their rights to their traditional lands in the southern Kalahari under South Africas new constitution. This led, a few years later, to the return to them of some lands from the Kgalagadi Transfrontier Park via a trust arrangement, and secure access to a large proportion of the park, where they are able to practise traditional culture. This process was aided by rapid constitutional changes stemming from the end of apartheid, and an innovative cultural and territorial recovery programme during which the government agreed to substitute San place names for those put in place by previous governments. This highlights the importance of governmental recognition of indigenous peoples - San imagery is now part of the new South Africa coat of arms, and the constitution recognizes indigenous peoples.
By contrast, in Botswana, the San community has faced serious threats of eviction from the land to which they gained access during post-independence reforms to land and wildlife legislation, especially in the Central Kalahari Game Reserve, from which many were relocated in 1997. They have now formed a team to negotiate with the government and secured legal assistance to help them pursue de jure legal control over their areas within the reserve through the courts. In all three of these cases, community-driven capacity building and development initiatives, coupled with support from external non-governmental organizations (NGOs), played a key role in fostering the unity and skills the San needed to address their quest for land.
Source: Hitchcock and Holm (1993), Hitchcock and Biesele (2000), NNDFN (2000), Chennells (2001) and J./Useb (personal communication, 2001).
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, 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 Nigers 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). 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, womens 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 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), 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.
Batwa and land pressure in Rwanda
There are an estimated 25 000 Batwa in Rwanda, predominantly in the mountainous and western parts of the country. They are widely considered to be the prior inhabitants of the country, preceding the settlement of the area by Hutu farmers and Tutsi herders. Traditionally forest-dwelling hunters and gatherers, the Batwa have progressively lost access to their lands and resources as forests were cleared for farmland and pasture. The last forest-dwelling Batwa were denied rights to their forests with the establishment of forest protected areas in the last few decades. Batwa survive as a highly marginalized and impoverished community, and are discriminated against by other ethnic groups who consider them to be backward and polluting.
In Rwanda, the average population density is 300 people/km2, and up to 800 people/km2 in some areas, with an average plot size of 0.5 ha. Population size is predicted to double to 16 million by 2020. The basis for Rwandas national land laws is derived from Belgian civil laws, and these have remained unchanged since independence. Although recognized by national tenure laws, customary rights are unregistered, with the state retaining total control over land. All statutes, decrees and customary laws were suspended after the 1994 war and genocide, pending approval of the draft National Land Policy. This proposes a form of communal rights by promoting families cultivating in common to prevent fragmentation through inheritance and to try to create a minimum landholding size of 1 ha. The draft land law specifies that people with customary holdings under 2 ha and those with customary holdings between 2 and 30 ha where the owner has a project and a development plan will revert to the state private domain after 3 years. Land will be tradeable, but not in a way that fragments plots below 1 ha.
The Forest Peoples Programmes surveys of 1993 and 1995 showed that 84.2 percent of the few Batwa who had land were living on land given to them by the Kings prior to 1959. So some Twa communities, at least, have obvious customary rights but they are vulnerable to being dispossessed by more powerful neighbours. Communities can create communal work groups (associations) and, providing the district authorities recognize the association, the association can be allocated use rights to marshland within the district. The new land policy states that marshland remains in the states private domain and will be allocated to individuals on a concession by the Ministry of Lands on condition of good management. Twa are now forming associations and gaining access to land in this way. How the Twa will fare under the new policy of recognizing customary rights in the long term is not known. However, given the persistent discrimination that Twa face in Rwanda, there is a clear risk that the surveys to settle titles, highlighted in Rwandas Poverty Reduction Strategy, will be biased against their communities, most of which still do not have secure access to lands where they live.
Source: Lewis and Knight (1995), Government of Rwanda (2001) and Wiley and Mbaya (2001).
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.
Anthony, K., Johnston, B., Jones, W. & Uchendu, V. 1979. Agricultural change in tropical Africa. Ithaca, USA, Cornell University Press.
Allen, W. 1965. The African husbandman. Edinburgh and London, Oliver and Boyd.
Bahuchet, S., Grenard, F. & de Maret, P. 2001. Tropical forests, human forests: an overview. Vol. 1. Brussels, Avenir des Peuples des Forêts Tropicales.
Berry, S. 1988. Property rights and rural resource management: the case of tree crops in West Africa. Cahiers des Sciences Humaines, 24(1): 3 - 17.
Berry, S. 1993. No condition is permanent: the social dynamics of agrarian change in sub- Saharan Africa. Madison, USA, The University of Wisconsin Press.
Biebuyck, D., ed. 1963. African agrarian systems. London, Oxford University Press for the International African Institute.
Biesbrouck, K. 1999. Agriculture among Equatorial African hunter-gatherers and the process of sedentarization: the case of the Bagyeli in Cameroon. In K. Biesbrouck, S. Elders & G. Roussell, eds. Challenging elusiveness: Central African hunter gatherers in a multidisciplinary perspective. Leiden, Netherlands, Research School, CNWS, Universiteit Leiden.
Bohannan, P. & Bohannan, L. 1968. Tiv economy. London, Longmans.
Bromley, D. & Cernea, M. 1989. The management of common property natural resources. World Bank Discussion Paper No. 57. Washington, DC, World Bank.
Brown, D. & Schreckenberg, K. 2001. Community forestry: facing up to the challenge in Cameroon. Network Paper 25a. Rural development forestry Network. London, Overseas Development Institute.
Bruce, J. 1986. Land tenure issues in project design and strategies for agricultural development in sub-Saharan Africa. Land Tenure Center 128. Madison, USA, University of Wisconsin Press.
Bruce, J. 1988. A perspective on indigenous landtenure systems and land concentration. In R. Downs & S. Reyna, eds. Land and society in contemporary Africa. Durham, USA, University Press of New England.
Bruce, J. & Migot-Adholla, S., eds. 1994. Searching for land tenure security in Africa. Washington, DC, and Iowa, USA, World Bank and Kendall/Hunt.
CED (Center for the Environment and Development). 2004. Projet Promo Bagyeli: cartographie participative dans la partie nord du parc national de Campo Maan. Yaoundé, Cameroon.
Chanock, M. 1991. A peculiar sharpness: an essay on property in the history of customary law in colonial Africa. J. African History, 32: 65 - 88.
Chennells, R. 2001. Indigenous peoples and conservation. Submission to Kigali Conference on Indigenous Peoples and Protected Areas in Africa, From Principles to Practice. Kigali, 4 - 7 September 2001. Moreton-in-Marsh, UK, Forest Peoples Project.
Cousins, B. 2000. Tenure and common propterty resources in Africa. In C. Toulmin & J. Quan, eds. Evolving land rights, policy and tenure in Africa. London, DFID/IIED/NRI.
Dembner, S. 1998. Forest peoples in the Central African Rainforest: focus on the Pygmies. Gland, Switzerland, World Conservation Union (IUCN).
Djeumo, A. 2001. The development of community forests in Cameroon: origins, current situation and constraints. Network Paper 25b. Rural Development Forestry Network. London, Overseas Development Institute.
Downs, R. & Reyna, S., eds. 1988. Land and society in contemporary Africa. Durham, USA, University Press of New England.
Egbe, S. 2001. The law, communities and wildlife management in Cameroon. Network Paper 25e, Rural Development Forestry Network. London, Overseas Development Institute.
Feder, G. & Noronha, R. 1987. Land rights systems and agricultural development in sub-Saharan Africa. Washington, DC, International Bank for Reconstruction and Development.
FPP. 2001. Indigenous peoples and protected areas: from principles to practice. September Conference Proceedings. Kigali, Rwanda, Forest Peoples Project.
Freudenberger, M., ed. 1993. Institutions and natural resource management in the Gambia: a case study of the Foni Jarrol District. LTC Research Paper 114. Madison, USA, Land Tenure Center.
Gluckman, M. 1941. Economy of the Central Barotse Plains. RLI Paper 7. Livingstone, Zimbabwe, Rhodes - Livingstone Institute.
Goody, J. 1980. Rice-burning and the Green Revolution in Northern Ghana. J. Development Studies, 16: 136 - 155.
Government of Rwanda. 2001. Poverty reduction strategy paper. Kigali.
Guyer, J. 1980. Food, cocoa and the division of labor by sex in two west African societies. Comparative Studies in Society and History, 22(3): 355 - 373.
Hailey, Lord. 1938. An African survey. London, Oxford University Press.
Hill, P. 1977. Population, prosperity and poverty: rural Kano, 1900 and 1970. Cambridge, UK, Cambridge University Press.
Hitchcock, R. & Biesele, M. 2000. Establishing rights to land, language, and political representation: the Ju/hoansi San at the Millennium (mimeo).
Hitchcock, R. & Holm, J. 1993. Bureaucratic domination of hunter-gatherer societies: a study of the San in Botswana. Development and Change, 24(2): 305 - 338.
Jackson, D. 2001. Indigenous peoples in Central Africa. A desk review for the International Labour Office (mimeo).
Kai Schmidt-Soltau. 2003. Conservation-related resettlement in Central Africa: environmental and social risks. Development and Change, 34(3): 525 - 551.
Lavigne-Delville, M. 2000. Harmonising formal law and customary land rights in French speaking West Africa. In C. Toulmin & J. Quan, eds. Evolving land rights, policy and tenure in Africa, pp. 97 - 121. London, DFID/IIED/NRI.
Lewis, J. & Knight, J. 1995. The Twa of Rwanda. Copenhagen, Forest Peoples Programme and International Work Group for Indigenous Affairs.
Lulink, V. & Kenrick, J. 1998. Forest foragers of tropical Africa. A dossier on the present condition of the Pygmy peoples. London, Survival International.
Lund, C. 1993. Waiting for the rural code: perspective on land tenure reform in Niger. IIED Drylands Networks Programme, Issues Paper No. 4. London, International Institute for Environment and Development.
Lynch, O.J. & Talbott, K. 1993. Balancing acts: community-based forest management and national law in Asia and the Pacific. Baltimore, USA, World Resources Institute.
MacKay, F. 2002. Addressing past wrongs. Indigenous peoples and protected areas: the right to restitution of lands and resources. Occasional Paper. Moreton-in-Marsh, UK, Forest Peoples Programme.
McAuslan, P. 2000. Only the name of the country changes: the disapora of European land law in Commonwealth Africa. In C. Toulmin & J. Quan, eds. Evolving land rights, policy and tenure in Africa. London, DFID/IIED/NRI.
Matlon, P. 1994. Indigenous land use systems and investments in soil fertility in Burkina Faso. In J. Bruce & S. Migot-Adholla, eds. Searching for land tenure security in Africa. Washington, DC, and Iowa, USA, World Bank and Kendall/Hunt.
Migot-Adholla, S. & John, M. 1994. Agricultural production and womens rights to land in sub-Saharan Africa. Washington, DC, International Development Association.
Mortimore, M. 1997. History and evolution of land tenure and administration in West Africa. Issue Paper No. 71. London, International Institute for Environment and Development.
Mortimore, M., Tiffen, M., Boubacar, Y. & Nelson, J. 2001. Synthesis of long-term change in Maradi Department, Niger, 1960 - 2000. Working Paper 39e, Kano-Maradi Study of Long-term Change. Crewkerne, UK, Drylands Research.
Nafziger, E. 1977. African capitalism: a case study in Nigerian entrepreneurship. Stanford, USA, University of Stanford Press.
Nelson, J. & Hossack, L., eds. 2003. Indigenous peoples and protected areas in Africa: from principles to practice. Moreton-in-Marsh, UK, Forest Peoples Programme.
Nelson, J., Kenrick J. & Jackson, D. 2001. Report on a consultation with Bagyeli Pygmy communities impacted by the Chad - Cameroon oil-pipeline project. Moreton-in-Marsh, UK, Forest Peoples Project.
Netting, R. 1968. Hill farmers of Nigeria. Cultural ecology of the Kofyar of the Jos Plateau. London, University of Washington Press.
NNDFN. 2000. The Nyae Nyae Conservancy Progress. Windhoek, Namibia, Nyae Nyae Development Foundation.
Pickney, T. & Kimuyu, P. 1994. Land tenure reform in East Africa: good, bad or unimportant? J. African Economies, 3(1): 1 - 28.
Platteau, J.-P. 2000. Does Africa need land reform? In C. Toulmin & J. Quan, eds. Evolving land rights, policy and tenure in Africa. London, DFID/IIED/NRI.
RISD (Rwanda Initiative for Sustainable Development). 2001. Workshop report on culture practice and law: womens access to land in Rwanda. Kigali.
Sang, J. 2003. Kenya. In J. Nelson & L. Hossack, eds. Indigenous peoples and protected areas in Africa: from principles to practice. Moreton-in- Marsh, UK, Forest Peoples Programme.
Saul, M. 1993. Land custom in bare: agnatic corporation and rural capitalism in western Burkina. In T. Bassett & D. Crummey, eds. Land in African agrarian systems. Madison, USA, The University of Wisconsin Press.
Shipton, P. & Goheen, M. 1992. Understanding African land-holding: power, wealth and meaning. Africa, 62(3): 307 - 325.
Simpson, S. 1976. Land law and registration. Cambridge, UK, Cambridge University Press.
Sjaastad, E. & Bromley, D. 1997. Indigenous land rights in sub-Saharan Africa: appropriation, security and investment demand. World Development, 25(4): 549 - 562.
Tiffen, M., Mortimore, M. & Gichuki, F. 1994. More people, less erosion: environmental recovery in Kenya. Chichester, UK, John Wiley.
Toulmin, C. & Quan. J., eds. 2000. Evolving land
rights, policy and tenure in Africa. London, DFID/
Turnbull, C. 1965. Wayward servants: the two worlds of the African pygmies. London, Eyre and Spottiswoode.
Turnbull, C. 1983. The Mbuti pygmies. Change and adaptation. London, Holt, Reinhart and Wilson.
Wiley, L. & Mbaya, S. 2001. Land, people and forests in eastern and southern Africa at the beginning of the 21st century: the impact of land relations on the role of communities in forest future. Nairobi, World Conservation Union (IUCN) - Region for Eastern Africa.
 The collection of rights
pertaining to any one land parcel may be likened to a bundle of sticks. From
time to time the sticks may vary in number (representing the number of rights),
in thickness (representing the size or quantum of each right) and in
length (representating the duration of each right). Sometimes the whole bundle
may be held by one person or it may be held by a group of people such as a
company, family, clan or tribe, but often separate sticks are held by different
people. Sticks out of the bundle can be acquired in many different ways and held
for different periods, but ownership of the land is not itself one of the
sticks; it must be regarded as a vessel or container for the bundle, the owner
being the person (individual or corporate) who has the right of
disposal (Simpson, 1976).|
 Public goods which are used simultaneously or sequentially by different users because of difficulties in claiming or enforcing exclusive rights, or because they are so sparse or uncertain that it is not worth doing so. (Cousins, 2000).
 Close relationships between pygmies and farmers extend to their perception of rights to land. Each farmer clan has rights which are recognized by all neighbouring farmers clans to a specific area of forest, which they may clear for crop cultivation or where they may hunt, fish, gather and extract the materials required. The clan of pygmies traditionally associated with that same farmer clan also has recognized rights to exploit the same area of forest. The farmers assist their pygmy partners in maintaining exclusive rights to this area, and violations by either pygmies or other farmers are contested through negotiation, or sometimes violence. (Dembner, 1998: p. 67). Bahuchet, Grenard and de Maret (2001) make a similar point regarding forest peoples in general.
 Allen (1965: p. 364) also stated that the hierarchy of estates is paralleled by primary and frequently fuller grades of estates in land, echoing Gluckman (1943): the law of property is intricately intertwined with the law of status.
 ... a transition from status to contract could not be accomplished as long as the material basis of life, access to land, depended upon status. It is this contradiction that remains the basis of the continuing importance of customary law. (Chanock, 1991).
 The redefinition of terms and conditions on which land is held, rather than a straightforward redistribution of the land itself. (Bruce, 1986: p. 51).
 The 1955 report of the Royal Commission on East Africa advocated a swift move towards freehold titles, as it was perceived to increase tenure security and support investment.
 In Kenya, land titling started in 1956 and continues to this day.
 This includes the United Republic of Tanzanias programme of ujaama villagization, and other top-down approaches put into place (e.g. in Ethiopia during the 1970s) to centralize labour and capital.
 In Kenya, it is now possible for the courts to recognize indigenous land allocation rules in wills.
 This occurred in a number of countries, including Nigeria, Senegal, the Sudan and Zaire (now the Democratic Republic of the Congo). In these instances most land was nationalized, but in fact the customary systems of arbitration continued to dominate at the community level, leading to a situation of legal pluralism.
 Literally, lands without masters - much of this land was already claimed and used by local people, but the state did not recognize this at the time.
 ... the land laws of Mozambique, Tanzania and Uganda make it explicit that not only one person or even two, but any group of persons (family, clan, community, village, tribe) may be recognized as owning land, and able to register this fact and receive a title deed expressing it. (Wiley and Mbaya, 2001: p. 16). new inheritance law in 1999 did much to equalize rights of women to own and manage property and resources, but it is ambiguous whether this applies to land as land still legally belongs to the state (RISD, 2001). The new land policy will give women equal rights of access to land (Government of Rwanda, 2001: p. 61).
 ... it is reasonable to consider tenure security more practically as the socially sanctioned ability to make productive use of specified land resources, to dispose of the produce therefrom without challenge from any source, and to engage in transactions involving more or less permanent transfers. (Migot-Adholla and John, 1994: p. 24) (see also Matlon, 1994).
 In most traditional African economies, the security of rights in land is guaranteed and protected by the very principle under which the initial rights were acquired (Anthony et al., 1979: p. 213) - the key is to maintain the social relations that give rights to land.