The recent donor country pressure for African nations to adopt multiparty politics as the means to democracy has had its positive results. On the negative side, the rural majority are still peripheral to this process which, quite frankly, is rather alien to rural processes of democracy and transparency. The greatest need in rural areas seems to be the strengthening and development of rural communities and institutions into self-contained sustainable entities of society. Rural communities, even in the modern setting, still operate on principles of customary law or belief system and tradition still provides guidelines to legal and administrative processes outside government. These processes determine on one hand, the property rights regime including land tenure. On the other hand, this process has developed into an effective social security system that, from time immemorial, has allowed village people to look after the hungry, the poor, the old and the destitute without building separate structures such as orphanages, old people's homes or soup kitchens. The greater the pressure that comes to bear on rural communities and traditional institutions, the less able these communities are to deal with social problems of poverty and food insecurity. An understanding of African traditional land tenure systems and the management of common property are essential elements in designing successful smallholder irrigation systems.
The land tenure situation in most smallholder farming areas of Southern Africa is so insecure and fluid that influential politicians and bureaucrats wield considerable power and influence on land issues. The fact that this traditional land is still viewed as state land has allowed political interference in its management, administration and legal interpretation of rights over the land and the water that flows on that land. It can be argued, therefore, that land tenure reforms which give traditional land users both communal and individual de jure ownership rights, are essential in creating effective and democratic rural and irrigating communities. These communities are able to exercise choice, be innovative enough in protecting their property rights and safeguard their economic interests.
Corporative type of governments ought to negotiate and develop partnerships with these communities, to establish agriculture and irrigation policies and programmes for a sustainable future.
The transformation of agrarian systems into urban-industrial economies invariably requires fundamental changes in many institutions, including those of land tenure (Dorner, 1992). The distribution of landownership is a major factor that influences this transition from one form of social and political order to another. Moore (1996), quoted in Dorner (1992), sums up the experience of all industrializing countries in the separation of a substantial segment of the ruling classes from direct ties to the land. Peter Dorner in this classic entitled "Latin American Land Reforms Theory and Practice, A Retrospective Analysis" refers to the Asian experience in relation to Latin America. He cites the land reforms in Taiwan and South Korea as having occurred early in their growth and industrialization process and that the industrial sector was never as closely tied to the egalitarian rural structures as is often the case in Latin America.
The African legacy can also be summed up in the lack of political wisdom or vision in terms of public policies, particularly for agriculture and natural resource management. Erratic rural economic growth is today translated into pervasive poverty, hunger, unemployment and environmental decline. It is now widely accepted that rural economic development is ultimately dependent on building strong and effective rural institutions and empowered communities. Issues of agriculture and natural resource management, therefore, can no longer be separated from issues of politics, democracy and good governance. These issues are based on growing evidence that agricultural growth and efficient management of natural resources are dependent on the political, legal, and administrative capabilities of rural communities to determine their own future and to protect their natural resources and other economic interests. The lack of this power (or lack of democracy) is translated into insecure tenure rights, abuse of common property and resources, disenfranchisement of rural people, particularly women and the breakdown or weakening of rural economic institutions.
Land reforms and land tenure reforms are infamous in Latin America for their limited success, while such needed reforms are conspicuously absent in Africa. Where land distribution is highly inequitable, arguments against land reforms are basically ideological and private property is assigned near-sacred rights. Private property is then elevated to the status of the foundation of civilized society. But, as Dorner (1992) argues, if this premise holds, then it must likewise be accepted that private property cannot perform this noble function if most people are without it.
Land tenure, land reform and security of tenure
Land tenure institutions are invariably unique and develop out of historical patterns of settlement and conquest. Moreover, land tenure institutions are rooted in value systems and grounded in religious, social, political and cultural antecedents. Consequently, it is not always prudent to disrupt existing tenure systems in the process of developing irrigation systems.
The nexus between tenure and governance is found in the colonial and post-colonial belief that indigenous or traditional tenure systems are incompatible with western or 'modern' systems of government and its associated economic institutions. To examine the foregoing question and its implications, the concept of tenure security will be discussed first and then the various tenure systems and their possible evolution will be described.
It may, however, add clarity by differentiating between land reform and land tenure reform. Land reform encompasses change which redistributes land. Since land is a finite resource, its ownership is generally symbolic of wealth, social status and prestige which are the very basic elements or ingredients of politics. Land reform, by contrast, is a revolutionary process and passes power, property and status from one societal group to another. Land tenure reform usually involves changes in the rules that govern land and related property rights. Hence the close association between land reform and land tenure reform.
The literature on tenure emphasizes the need for tenure security and that the various types of tenure (including the "registered title") can be secure or insecure depending on social, legal and administrative institutions in a given society. Security of tenure is associated with four sets of rights. The basket of rights therefore indicates the relative security of a tenure system depending on secured rights from the four sets as follows:
· user rights are rights to grow crops, trees, make permanent improvement, harvest trees and fruits, and so on;· transfer rights are rights to transfer land or use rights, i.e. rights to sell, give, mortgage, lease, rent or bequeath;
· exclusion rights are rights by an individual, group or community to exclude others from the rights discussed above; and
· enforcement rights refer to the legal, institutional and administrative provisions to guarantee rights
The four major categories of property rights define uses that are legitimately viewed as exclusive and also define who has these exclusive rights (Feder and Feeny, 1991). Rights may also have a temporal dimension. In parts of Africa and South Asia, for instance (as was the case in medieval England) rights to the crop are private whereas rights to the stubble after harvesting are communal. In parts of Africa, land and tree tenure are separate. In addition, rights may specify conditions affecting types of rights transfer and parties to whom such transfers may be effected.
Institutional arrangements include instruments for defining and enforcing property rights (be they formal procedures, social customs, beliefs or attitudes), determining legitimacy and recognition of these rights (Taylor, 1988). Enforcement often requires a buttress of instruments such as courts, police, financial institutions, the legal profession, land surveys, cadastral and record keeping systems, and tabling agencies.
Tenure systems can be categorized on the basis of those who enjoy exclusive rights. On this basis all tenure systems fall into four broad categories: open access, communal, private and state (Table 2). For practical purposes, there a few areas left in most countries that are truly open access. As a general observation, some land may appear or be treated as open access but such land is usually state land or communal land. When the state or community lack adequate legal and enforcement capacity, or when such capacity comes under pressure, the resultant insecurity of tenure is evidenced through land use patterns that mimic open access systems.
TABLE 2 Categories of land tenure systems
|
Category |
Ownership of exclusive rights |
|
Open access |
None |
|
Communal |
Defined group |
|
Private |
Individual legal entity |
|
State |
Public sector |
Exclusivity (of individual or group) therefore defines the degree of tenure security. Under communal tenure, exclusive rights are assigned to a group. Individual or family rights are also assigned under most traditional tenure systems. This explains why Migot-Adholla et al. (1991) argued that indigenous African land rights systems have been incorrectly represented by most foreign anthropologists, colonial administrators and some nationalist ideologues who view these systems as static polar contrasts to Western property rights system.
Private property rights are the most prevalent form of tenure in industrialized western countries. As alluded to earlier, however, private land rights are not God-given or sacred rights, but rather that private property is a creation of the state. After all, private property is not and cannot be an absolute right (Dorner, 1992, page 10):
"It is not very helpful nor is it accurate, to say that private property and enterprise made the United States great and that this is what the United States has to offer in the struggle for economic development around the World. In fact, it is our open and flexible political system that has allowed us to make private enterprises within the United States consistent with the general public interest, as Marx thought it would never be. However, there is no reason to expect that private enterprise will automatically function in the public interest in a system lacking political institutions and the middle-class society in which they rest."
We will discuss later the fact that where private property rights are not viewed as legitimate, or not generally viewed as working in the public interest, or where they are simply not enforced adequately, de jure private property becomes de facto open access.
The Kenyan, and to some degree the Zimbabwean experience, with state-imposed change from traditional to registered title, have experienced problems based on the fundamental interpretation of these rights under customary law or belief. Often, traditional inheritance and succession laws will supersede the implied statutory laws of intestate inheritance. Moreover, in most matrilineal African societies, registered title usually means the individual name of the male head of household appearing on the title. Since such title is negotiable property, women and dependent children are often prejudiced when property is let or foreclosed on business in which they were not involved. Under most African customary laws, the male may be head of family but the land is property belonging to the whole family. Wives and dependent children, therefore, should have inalienable rights to sub-division or inheritance. As a minimum therefore, the immediate family has to be party to or concede to any land transactions or mutations that may affect their immediate and/or future rights or interests. The cultural laws and practices of family rather than individual rights are the basis of Africa's celebrated social security system; a system that is still relatively cost-effective and unlikely to be replaced by state social security system for quite some time into the future.
State land is often used by the public sector but, more importantly for our discussion, most land under de facto indigenous or customary tenure, is usually de jure designated as state land. This situation poses the most serious source of tenure insecurity or lack of exclusivity.
Institutions, or rules of the game and how the rules are applied, are most important in determining how secure rights are and this goes for all tenure systems. Ultimately, and in the abstract, there is no tenure system that is good or bad, right or wrong, rather, any tenure system has to be secure, appropriate and able to facilitate the needs of a community or society.
Governance issues and implications for water rights
The majority of Africans hold their land under indigenous customary land tenure systems irrespective of the formal legal position under national law (Bruce et al., 1993). This applies to most irrigated land under smallholder cultivation. Most African governments, however, designate traditional land as state land. Most governments accept the de facto prevalence of customary tenure, while at the same time maintain the de jure state ownership, which it turn allows bureaucrats, politicians and influential people to exercise privilege and authority over traditional land and rural communities.
Most smallholder irrigation systems, therefore, are controlled and managed by state organs. Some governments have attempted to replace customary tenure with state guaranteed individual rights (registered titles). The general experience, however, has been that state imposed individualized tenurial systems do not necessarily offer greater security for African land users, because of weaknesses of government institutions in Africa.
Communal tenure and common property management
African tenure systems have erroneously been explained through the notion of "tragedy of the commons". Observers believed that these systems of tenure assign land rights to the community and ultimately land users would not risk long term investment into improving the land and land based resources. More careful analysis of traditional tenure systems, however, shows that this tenure is composite, with clear freehold rights usually for arable and residential land, as well as group rights for pastures, forests, mountain areas, waterways, sacred areas and so on. The robustness of the tenure system, however, is dependent on the strength of the traditional institution in place, and degree to which state and other local government institutions interfere or supersede traditional rights and administrative process.
Most African governments, after political independence from colonial masters, have maintained the colonial legacy of inadvertent undermining of indigenous tenure systems. This undermining has occurred through two major approaches. Most prevalent is the practice that all land with no registered title is, ipso facto, state land. The second approach is the attempt to replace customary land tenure with state-imposed individual property rights to land and the land based resources. This change, it is assumed, is more compatible with the intensification and commercialization of agriculture.
There is mounting evidence, however, that land titling and registration programmes have generally not yielded positive benefits. Moreover, formal title did not necessarily mean an increase in tenure security (Roth et al., 1989).
There is also growing evidence that indigenous tenure systems are dynamic and evolve with changing social, economic and political circumstances. Boserup (1981) and Feder and Noronha 1987 provide evidence corroborated by Bruce et al. (1993) that customary tenure rights evolve towards more alienable individual rights as population pressure increases and as agriculture becomes more commercialized.
Legal and administrative processes and water rights
A fundamental problem is the clash between customary laws governing tenure, vis-a-vis statutory laws which often are based on European or North American legal principles. A general observation is that customary laws tend to confer greater recognition to group rights, whereas western laws emphasize individual rights. These differences also lead to further differences in other elements of property rights institutions such as inclusion, exclusion, succession and inheritance. Water rights under traditional customary law is common property, managed for the greater good of the community. Most state laws, however, assign water rights to commercial (title deed) land, while the state enjoys water rights over traditional land. Smallholder irrigation, therefore, generally enjoys water rights via a third party, usually a state bureaucrat holding such rights in trust for the community. This situation exacerbates the already insecure land tenure situation and smallholder irrigators' rights are often susceptible to state and political interference.
Need to decentralize government and strengthen traditional institutions (including ability to resolve conflicts)
Highly centralized systems of government were judged as the most serious threat to tenure security for land users under all types of tenure in Zimbabwe (Rukuni, 1994). This problem is more serious for communally held land and state land occupied by communities under customary rights. Communities occupying such land have limited exclusivity of rights because state bureaucrats and related politicians also claim institutional authority over such land and in the worst of cases these state functionaries may be the de facto landlords. Ministries of Local Government in most African countries have responsibility for enforcing the state controlled system and often subordinate traditional institutions to the state bureaucracy. In some cases, Kenya for example, traditional leadership structures were dismantled after independence. To varying degrees, these traditional leadership structures have been weakened or disenfranchised after independence. The political justification for this disenfranchisement has been the historical association of traditional leaders with the colonial administration.
An illustrative case of decentralization and empowerment of local communities is the Communal Areas Management Programme for Indigenous Resources (CAMPFIRE) programme in Zimbabwe. CAMPFIRE is also under adoption in a few other Southern African countries. Under CAMPFIRE local communities manage and utilize their natural resources to their exclusive economic benefit. This approach has been most effective in the management of wildlife held on communal land. As a result of the financial incentives gained, these communities now take the initiative to protect and conserve the wildlife which in the past they would have poached. This experience confirms the need for greater empowerment of communities over the conservation of their environment. This is only possible through delegation of responsibility and authority and creating administrative and institutional mechanisms that are legitimate, effective and accountable in the control of land use and natural resource utilization. Rural communities, therefore, can own and utilize common property resources effectively and sustainable, provided they clearly benefit from the resources and they (the communities) are empowered through local level institutions. This concept needs to be extended to the use and management of water resources by irrigating communities.
Land tenure and economic efficiency
A growing body of research based knowledge on tenure demonstrates that the most important characteristic of tenure security under indigenous systems is the ability to bequeath land. Pace et al. (1993) examined studies by the World Bank and the Land Tenure Center and they also studied a number of African countries to derive a comparative analysis of Burkina Faso, Ghana, Rwanda, Kenya, Senegal, Somalia and Uganda. This analysis confirmed that indigenous systems do not hinder productivity or investment. In addition, land registration has not necessarily led to tenure security. Government intervention, therefore, makes sense only after establishing causes of tenure insecurity, and also bottle-necks to rural development. As productivity of land and natural resources increases, agriculture becomes more commercialized and as population densities increase then appropriate registration efforts bear positive results. The same may apply where land grabbing by powerful elite's is unchecked. Recent research also demonstrates that the high productivity increases enjoyed by smallholders in Kenya and Zimbabwe had and still have less to do with individual tenure. Rather, the removal of prohibitions and other bottlenecks for smallholders were more important than land tenure changes.
Research has also exposed two other economic fallacies associated with state imposed individual tenure reforms. First is the fallacy of economies of scale in agricultural production. Worldwide evidence shows no real scale economies, and if anything, small farms can be as highly economically efficient as any sized farm. The second fallacy is the traditional state view that multiple parcels of land in separate locations are inefficient for production. Once again evidence is showing that there is great wisdom in smallholders having multiple parcels of varying potential and/or suitability for a wide spectrum of crops grown. These two fallacies lead governments into pursuing policies for consolidating holdings and policies against subdivision of land. This policy has also been a drawback for smallholder irrigation as most governments discourage irrigators from cultivating several parcels of land. Often, smallholder irrigators are discouraged or prohibited from rainfed agriculture or other non-irrigation activities. These policies are not based on established fact, and often hinder the economic strengths of traditional practices.
Land tenure, in summary, is a complex issue which should be allowed to develop or evolve with changing socio-economic and cultural conditions of a given community. Traditional or customary tenure systems offer as much security as any other system provided that communities have legal ownership and authority over their land and irrigation system. Governments can strengthen this tenure system by supporting and empowering local communities. Highly centralized systems of governance, combined with bureaucratic top down decision making tend to impose decisions on people at the grassroots level. This system of government is weak in terms of effectiveness, impact, accountability and transparency and it denies people the chance to be self-innovative. Governments have to fully understand traditional and indigenous tenure systems before radical attempts are made to alter them for ideological or purely political reasons. These tenure systems have survived a century of neglect, abuse and exploitation by colonial and contemporary governments. Above all, these tenure systems require support to strengthen local institutions and empower local communities in administering tenure and allowing the tenure system to evolve over time. Tenure security in terms of exclusive rights of groups and individuals it has hopefully been argued, are the very basis of political and social power and status. When such rights are overly subordinated to the state, it follows that the political rights of rural people are diminished and that democratic processes and institutions are undermined. This diminution of rights and undermining of democracy is a major cause of tenure insecurity, with resultant negative impact on agricultural productivity and the management of natural resources, particularly on communally held land and irrigation systems.
