7.3.1 Concept of tenure
7.3.2 Types of land tenure
Tenure refers to the nature and range of rights that individuals have to land, water and other natural resources in relation to rights exercised by other individuals, social groups and the state. Tenure to a given area of land may be vested in an individual, in some group of individuals who may exercise co-equal use rights to the land, in some corporate entity such as a co-operative or a church, or in the state, which may establish rules or regulations defining who may use the land and for what purposes.
Tenure is usefully described in terms of the bundle of rights an individual, group or the state holds to the land. With respect to individual tenure, the minimum, definitive right in the bundle of rights is the right of exclusive use for certain purposes. Other rights in the bundle might include the right to use the land in perpetuity, the right to designate heirs, the right to sell the land etc. Rarely, if ever, are an individual's rights unlimited. For instance, in the interests of public health or safety, it is common for states to prohibit certain uses which may cause pollution or injury. In many customary tenures, the local ethnic group retains the right to allocate individual farms only to qualified members of the group. Most states retain the right to confiscate land for public purposes, with or without compensation, if this should be deemed necessary. Thus, states invariably hold at least a few of the rights in the bundle. An individual's right to harvest for his or her exclusive use of a crop may be conditioned by the right of all stockholders in the community to graze their livestock on that crop's residues after harvest. Here, there are overlying individual and community use rights to the same area of land.
Individual tenure
There are different forms of individual tenure. However, two major forms of individual tenure are freehold and customary tenure.
Freehold tenure is common in Western countries. Freeholders have what are considered private property rights over the land, which include the ability to sell the land, rent it to others and to use it as collateral for a mortgage. Under most forms of customary land tenure in Africa, the bundle of rights farmers may hold over individual farms is not as large as those under freehold. Typically, land cannot be bought or sold. Rather, it is allocated to qualified applicants (e.g. bona fide members of the community or local ethnic group) by the local land trustee on the basis of need. Land is not alienable from the community trust, so it cannot be used as collateral for loans. Usually, however, an individual's land use rights are very secure, subject to certain conditions; i.e. that land be more or less continuously cultivated, subject to periodic fallow. Land is usually heritable, another measure of long-term, essentially perpetual, tenure.
Controversy surrounds the question of the effects of customary tenure on agricultural investment and productivity on the individual farm (Cohen, 1980). Some critics argue that customary tenure provides insufficient security, thus contributing to low levels of investment, is inflexible in responding to market signals affecting choice of technology and crops, and, because land is not marketable, better farmers have difficulty gaining access to land that they are capable of farming more productively than their fellows. Alternative views are that, although there are disadvantages for some people, customary tenures provide low-cost access to land for the majority of the rural population, that farmers have long-term and secure usufruct rights, and that in many places, customary tenures are evolving to accommodate new technologies and formal land markets, at costs lower than would state-run land titling and registration systems. This debate over the effects of customary tenure on investment on individual farms is particularly relevant when considering questions of investment in on-farm infrastructure and adoption of technologies necessary for intensive production, such as dairy.
Communal tenure
Communal tenure refers to situations where a number of people use the land simultaneously. In much of sub-Saharan Africa, livestock are grazed on communal pastures. Grazing rights, in terms of the number of livestock an individual may graze, or where they may graze at different times of the year, may or may not be limited by some local governing structure or by the state. A group's rights may extend to prohibiting non-group members from using the pastures. Alternatively, the pasture may be open to all who own livestock and have the labour and other necessary inputs to maintain them.
When considering communal tenure, it is useful to distinguish between two types of situations, namely common property and open access. In common property situations, there are relatively high levels of control over who has the right to use the resource and at what intensity. Common property situations are characterised by rules which define individual rights to a common resource. In open-access situations, individuals of any ethnic or other group have more or less unrestricted use rights to the resource. Open-access situations are characterised by an absence of defined property rights.
In most pastoral areas in sub-Saharan Africa, access to grazing is minimally restricted to members of the community or ethnic group which claims territorial rights over the area. In these cases the areas would be considered common property, in terms of the definitions offered for common property tenure and open access. However, an important concern for the analyst is the extent to which a common property system asserts effective controls over the range-use practices of those who have access to a given range. Very few of these systems apply such controls.
