- Social, Political and Equity Aspects of Land and Property Rights by Francis M. Ssekandi
This groundbreaking article examines the concept of "property" in law and as a tool of land management in Africa. The Universal Declaration of Human Rights recognizes the right of everyone to own property alone or in association with others. Despite this recognition of a right to individual as well as communal ownership of land, colonial courts and administrators in Africa introduced concepts and instituted laws that restricted land ownership to individual title and relegated traditional communal land ownership to "usufruct", which meant that the individuals on land could only own improvements on land and not the land itself. The value of the "usufruct" was considerably less and permitted the colonial governments and the African elites that succeed them to acquire at a pittance valuable property from natives for commercial use in name of development.
The article analyses cases from Nigeria and Tanzania where this heresy was first enunciated but later repudiated as disenfranchising whole populations and condemning them to perpetual tenants in their own country. However, Land Reform efforts pursued in Africa continue to place emphasis on individual titling of land as a preferred mode of property ownership to promote land value and development. The social impact of these reforms are considerable as communities continue to lose their land to individual wealthy and politically connected land owners thus driving great numbers of landless men and women to city slums.
The article also examines the land reforms promoted by donors in in Asia, Latin America and Africa and the consequences of exacted by titling on the overlapping interests of individuals and communities under customary tenure. In Africa, unlike in Latin America and Asia where land reforms were driven by "redistributive and restitutive" ideological pursuits, the land reforms were haphazard and donor driven, continuing the colonial framework of favoring titling land to individuals to the detriment of customary land ownership in the name of promoting land value and development. The article thus makes the following recommendations as the basis of any Land Reform in Africa:
- In order to be true to the African concept of land tenure, agricultural land (including pastoral land), covering the soil and water, excluding minerals, must be considered a national treasure, as proclaimed in the Ethiopian Constitution and the Land Law of Niger.
- True to custom, once land has been allocated and exploited, it then belongs to the ?tiller? absolutely, to the exclusion of others, except for the reserved commons which are preserved for common grazing or preserved forests which are used for timber, firewood and other natural fruits of the soil, and the interests of successors in title.
- The duty of Government should be to install institutions and mechanisms that facilitate the identification and enforcement and development of the customary rules.
- Legislation should ensure the continued application of known traditional rules of the community concerned on land use. For example, individuals traditionally were only allowed to own as much as is sufficient for themselves and their families. Excess land was distributed to families that needed it and to new comers if no community members needed it. It is important that such mechanisms ensure that the rules can be administered flexibly to allow for evolution of norms in keeping with changing times.
- To ensure certainty and avoid boundary disputes, governments should invest in land surveys, provide for issuance of Certificates of Customary Tenure on settled land along side registered titles on vacant land and adjudication of disputes by local tribunals manned by elders familiar with customs and area practices. Except for validated sales of land under customary tenure, titles should be issued for land owned under customary tenure to avoid massive conversion of customary lands.
The article by Ssekandi is followed by substantive reviews and comments notably by Jean-Pierre Chaveau who analyses the article in French and makes suggestions, Christian Graefen who adds his own observation on Discontinuity and Evolution-Colonialism and Beyond, as well as Martin Adam who discusses the case of Botswana. These complimentary articles and observations reinforce the importance and value of land as property and the need to promote land reforms that ensure equity and fairness to all its land users.