7.7.1 Security of tenure
7.7.2 Rights to land transactions
Thus far we have considered tenure issues which arise where livestock are produced on natural rangelands. However, tenure problems may arise where farmers undertake intensive livestock production, such as dairying, on small-scale, individual farms. Here, the policy analyst will usually be concerned with the effects of customary tenure rules on security of tenure and on the functioning of land markets.
A common criticism of customary tenures is that they do not provide farmers with sufficient assurance that their long-term land rights are secure, so that they will benefit over the long run from investments in fixed capital and other improvements.
This interpretation of the nature of farmer security under customary tenure is often based on an incorrect interpretation of individual land rights under customary tenure. Because original allocation rights are vested in the community (or delegated to the community by the state), there is a tendency for outsiders to attribute to the community or to its trustee the ability to act with the full force of ownership in the Western sense. In this view, farmers are sojourning on the land and can be ejected at the of the land authority. In practice, and in customary law, this is not an accurate characterisation.
Under most systems of customary tenure, an individual's long-term use rights are secure, and virtually permanent, as are his or her rights to the returns on any improvements. In most places, land is heritable. Usually, conditions for losing land are explicit and well understood. The most common condition for maintaining use rights is that the land be cultivated, taking account of periodic fallow. (In places, some classes of farmers have more limited rights. Stranger farmers, an important phenomenon in parts of West Africa, are treated as guests in the community. Undertaking permanent improvements may be interpreted as an assertion of permanent rights and will be resisted by the host community. Women do not usually qualify for independent use rights, but gain access through marriage and may lose them through divorce or death of the husband.)
When considering the effects of customary tenure on security of investment, the analyst should assess the tenure/security relationship. Appropriate questions would include:
· What are the individual farmer's land rights in relation to the community and the state? Are the farmer's long-term rights insecure? What are the specific tenure issues giving rise to insecurity?
· Are there factors other than tenure causing farmers not to invest in new technologies or practices, such as the unavailability of product markets or low returns to investment? If non-tenure factors become less constraining, will tenure still constrain adoption or might tenure rules themselves adjust?
· What are the options for enhancing security, taking into account the whole array of costs associated with any given strategy? Achieving tenure change is not a matter of simply changing land law. Land titling and registration systems based on Western models require establishment of costly administrative machineries which could place severe strains on many budgets.
A second common criticism of customary tenures is that prohibitions against land transactions mean that farmers better able to put land of a certain quality or in a certain location to more productive use than a farmer currently occupying it will be unable to buy or rent the land. Of course, this constraint affects both parties to prospective transactions. The current landholder may be able to realise higher income from the land by renting it out than he or she could by farming it, but is prohibited by customary tenure from doing so. Land as a factor of production is less mobile in relation to other factors. As such, customary tenure may be a source of inefficiency.
This could become a particular problem in the case of dairy production. Dairying is a relatively capital intensive activity and is economical near urban or other densely settled areas with a relatively high and reliable demand for milk. Two constraints must be overcome. First, the farmer will need assurance that returns to investments in fixed capital such as fencing, watering facilities, milking parlours etc will accrue to him or her over the long run. This is the security of tenure issue which was addressed above. The second constraint relates to rights to land transactions. This will be addressed in the following section.
The second constraint will arise when an entrepreneurial farmer, possessing skilled labour and sufficient capital to start a dairy enterprise, is unable to secure suitable land. The farmer might be a local person and already hold a small piece of land, but would need to rent or purchase a neighbouring field to expand forage production. The farmer may originate from a distant province and have no customary land rights in the farming areas near the town.
The farmer needs functioning markets in land rights to allow him or her to purchase or rent a holding of appropriate economic scale. In the absence of thorough-going land reform, the policy maker's options would appear to be severely constrained. However, options do exist.
First, the analyst should determine if formal or informal markets are not in fact operating. As farming land takes on increasing value near urban centres, customary tenure rules are accommodating a greater variety of transactions, including long-term rental and sale of customary land rights. For instance, in Lesotho, dairy producers are successfully negotiating purchase of customary land rights near urban areas (Lawry, 1988). Once purchased, they believe the customary right provides sufficient security to warrant all types of fixed investment.
Second, the state could sanction transactions in customary land rights, subject to certain conditions and limitations. For instance, approval for each transaction might be sought from local land allocation authorities. When the state or a local authority witnesses rental contracts and sale agreements, both parties to transactions will have greater assurance that the agreements will not be subject to subsequent dispute and litigation. By reducing uncertainty, the state enhances security.
Changes affecting tenure rights on the farm will have far-reaching consequences and must be carefully considered. An important social goal of customary systems is to provide the largest possible number of qualified members of a community with sufficient land to make a basic living. Where competitive land markets supplant traditional allocative principles, poorer households will undoubtedly find it more difficult to secure land.
Important points (7.5-7.7)
· One policy instrument to control overgrazing and land degradation is legislation to reform existing tenure systems.
· One tenure policy intervention is land legislation to convert communal tenures to individual tenure.
· An additional tenure policy intervention attempts to achieve better control over how individual herders utilise communal rangelands.
· Both types of 'Interventions have been tried in Africa. Individual tenure could deny smallholders access to extensive communal rangeland.
· Interventions aimed at resource conservation and economic efficiency may conflict with stability and equity objectives.
· Besides tenure reforms, two important measures to control overstocking are tax policy and stocking controls administered by national governments.
· A grazing tax may lead to optimal stocking rates from the national point of view, but it hurts herders. Further, implementing a grazing tax is not a simple task.
· Stock control could be exercised by assigning the right to graze a certain number of animals to Individual herders. This is again likely to be resented by herders.
· Spontaneous land enclosure and individualisation of rights may become more common in the future. However, spontaneous tenure reform may conflict with national objectives.
· Two main criticisms of the customary tenure system are:
- insecurity to long-term land rights
· Customary tenure is not usually as insecure as outsiders believe.
· Economic efficiency requires that the state sanction transactions in land rights subject to certain conditions and limitations.