Customary Tenure Systems Research Articles

Gendered Incidence and Impacts of Tenure Insecurity on Agricultural Performance in Malawi’s Customary Tenure System

Malawi’s recent passage of Land Acts provide an opportunity to clarify different aspects of the country’s land tenure in an integrated way. To assess whether doing so might be economically justified, we explore incidence and impact of tenure insecurity among smallholders. Insecurity is not only widespread, with 22 per cent of land users being concerned about losing their land, but is also associated with a productivity loss of 9 per cent for female operators, equivalent to US$ 11 million per year at the national level, enough to pay for a nation-wide tenureregularisation programme in two to three years.

Pastoralism and Land Tenure Transformation in Sub-Saharan Africa: Conflicting Policies and Priorities in Ngamiland, Botswana

In dryland Africa, access to land and water resources are central to pastoral livelihood activities. Policy intervention in these regions represents the outcome of concerted post-independence processes in which countries have committed to land tenure transformation as a policy objective. This was meant to create private, liberal property rights to replace communal customary tenure systems which were considered to be a constraint to development. Despite these efforts, decades of scientific research indicate that countries are still struggling to meet environmental sustainability objectives. Land degradation where it existed has not been halted and traditional pastoral livelihoods have been disrupted. The overall evidence base for policymaking remains weak as deficiencies in data or information on which management decisions were based led to poor policy performance. In a bid to strengthen understanding in this area, this study has a dual aim: 1. Using a systematic review of the literature, we examine the impact of land tenure transformation in pastoral areas in sub-Saharan Africa; 2. We analyse user-perspectives on land tenure transformation and pastoralists’ rights in Ngamiland, Botswana, so as to draw out the salient issues that must be addressed in order to reconcile pastoral tenure conflicts and land management in sub-Saharan Africa. Results from meta-analysis and case study show that land tenure transformation policies across pastoral areas are subject to similar challenges and consequences. Protecting pastoral land rights requires deliberate policy interventions that recognise pastoralism as a productive and efficient use of resources. Policymakers need to overcome anti-pastoral prejudice and focus on Sustainable Land Management goals. This entails establishing negotiated and flexible tenure frameworks that strengthen pastoralists’ participation in decision-making arenas by working with pastoral communities on the basis of understanding their livelihood system.

Youth Agricultural Land Access Dimensions and Emerging Challenges Under the Customary Tenure System in Ghana

The youth constitute an important human capital for the socio-economic growth and development of Ghana. As an agrarian economy, land remains a key resource in national economic development. Consequently, youth access to agricultural land is crucial in harnessing their potential for increased agricultural production. This study examines youth access to agricultural land dimensions under the customary system in Ghana. Using Techiman area as a case study, the study employed multiple sampling techniques to select the study communities and the respondents. In all, 455 youth and 23 elder respondents were covered. The results revealed that the youth have limited access to land for agricultural purpose on permanent basis. Land access mechanisms which convey temporary and limited rights such as licence and rentals were more popular among the youth respondents. This undermines their ability to make long-term investments and participate in cash crop cultivation. The study recommends a targeted youth agricultural land policy by government that will leverage the potential of the youth for increased agricultural production in the country.

Large-scale land acquisitions, state authority and indigenous local communities: insights from Ethiopia

The convergence of diverse global factors – food price volatility, the increased demand for biofuels and feeds, climate change and the financialisation of commodity markets – has resulted in renewed interest in land resources, leading to a rapid expansion in the scope and scale of (trans)national acquisition of arable land across many developing countries. Much of this land is on peripheral indigenous peoples’ territories and considered a common property resource. Those most threatened are poor rural people with customary tenure systems – including indigenous ethnic minority groups, pastoralists and peasants – who need land most. In Ethiopia large areas have been leased to foreign and domestic capital for large-scale production of food and agrofuels, mainly in lowland regions where the state has historically had limited control. Much of the land offered is classified by the state and other elites as ‘unused’ or ‘underutilised’, overlooking the spatially extensive use of land in shifting cultivation and pastoralism. This threatens the land rights and livelihoods of ethnic minority indigenous communities in these lowlands. This article argues that recent large-scale land acquisitions are part of state strategy for enforcing political authority over territory and people. It examines the implications of such strategy for indigenous ethnic minority groups, focusing particularly on the Benishangul-Gumuz region.

A Long Time Gone: Post‐conflict Rural Property Restitution under Customary Law

ABSTRACTMass displacement of people due to violence poses a unique set of challenges for property restitution when people return to their homes after a long absence. This is particularly evident in rural areas where the dominant form of land holding is customary tenure. Violence‐induced displacement, unlike voluntary migration, challenges both customary and public legal‐administrative structures. The lack of written documentation of customary holdings and the importance of the support of community leaders means that incorporating returnees back into a community can be easier for those who choose to return, while reclaiming property without physical return is nearly impossible. This article seeks to make three contributions: 1) to note the diversity of return processes after long displacements in terms of timing and demographics; 2) to demonstrate that the nature of the claims people can make on customary tenure systems is at odds with international legal norms on property restitution after displacement; and 3) to introduce a set of observations and questions on how conflict can change customary law. The article is based on fieldwork conducted in Uganda, Liberia and Timor‐Leste, all countries with extended displacement where most of the rural land is held via customary claims.

Land consolidation, customary lands, and Ghana's Northern Savannah Ecological Zone: An evaluation of the possibilities and pitfalls

Land fragmentation has been identified to greatly undermine crop production in many countries. In the case of Ghana’s customary tenure system, household farmlands are relatively small and are highly fragmented. Recent agricultural drives, however, have focused on farm level interventions that are ad hoc with short-term benefits. A sustainable long-term application of land consolidation which reorganises farmlands may improve yields, reduce the cost of production and improve the incomes of farmers. The successful implementation of land consolidation depends greatly on the suitability of local conditions with respect to land tenure and land use. However, in Ghana’s customary lands, the alignment between the requirements for land consolidation and existing conditions remains unexplored. This study investigated the feasibility of land consolidation within the customary tenure by juxtaposing the local conditions of the study areas with the baseline conditions for land consolidation outlined in literature. Using both qualitative and spatial data, the study revealed some traits of convergence and divergence with respect to the baseline conditions in the study areas. For example, conditions such as the existence of land fragmentation, suitable topography and soil distribution were fully met. Conditions such as the existence of a land bank, technical expertise, and infrastructure and supportive legal frameworks were partially met. The remaining conditions such as the willingness to participate, availability of a land information system and favorable land ownership structure were non-existent. The circumstances surrounding these unmet conditions are deeply embedded in customs and traditions that hardly yield to change. Since these conditions are fundamental for land consolidation, their absence negates the feasibility of land consolidation under the current tenure system of the study areas.

Smallholders and Land Tenure in Ghana: Aligning Context, Empirics, and Policy

For decades, policymakers and development practitioners have debated benefits and threats of property rights formalization and private versus customary tenure systems. This paper provides insights into the challenges in understanding and empirically analyzing the relationship between tenure systems and agricultural investment, and formulates policy advice that can support land tenure interventions. We focus on Ghana, based on extensive qualitative fieldwork and a review of empirical research and policy documents. Comparing research findings is challenging due to the use of different indicators, the varying contexts, and the diversity of investments. The interaction between land rights and investment make establishing causality extremely difficult. Setting policy priorities and strategies requires more and better insights into the diverse responses of different stakeholders and the tenure and cropping systems involved.

Legal Pluralism and Tenure Security: Exploring the Relationship between Statutory and Customary Land Tenure in Zambia

In many parts of the developing world like sub-Sahara Africa, legal pluralism can be found where state and customary law co-exist as legal systems in land administration. On one hand, state law is used to administer state land under statutory tenure while on the other hand, customary law is used to administer customary land under customary tenure systems. However, for many decades now, governments have been reformulating land laws to provide for the transformation of customary land tenure systems into leaseholds under statutory tenure. The assumption behind this transformation is that it would lead to economic growth as the privately owned land can, among other things, be used as collateral to obtain loans. Nonetheless, state laws on land still provide for the statutory recognition of the customary tenure systems that the governments intend to transform. While the effects of the conversion of customary land to state land or leaseholds are well documented, the real root causes of these effects are not well documented. In this paper we postulate that the effects of the conversion of customary land emanate from legal pluralism. To this effect, we focus on the state land law of Zambia, the Lands Act of 1995 to: 1) investigate the meaning and interpretation of the sections in the Act that provide for the statutory recognition on one hand, and conversion of customary land, on the other; and 2) discuss the effects of the said sections on customary landholders. Methodologically, we use qualitative methods (largely in-depth interviews) to conclude that governments in sub-Sahara Africa are the architects of tenure insecurity because they (knowingly or otherwise) enact laws that are contradictory or conflicting in nature. In the case of Zambia, there are contradicting sections within the Lands Act 1995 where, while one section provides for the conversion of customary land, the other provides for statutory recognition of the same traditional tenure. This therefore casts a shadow of confusion regarding the meaning of “statutory recognition” in that in practice “legality”, by way of holding private title deed, always takes precedence over “social legitimacy”. The implication of this is tenure insecurity and an associated avalanche of evictions, elite capture, sub-division and enclosures of common pool resources, land grabs, and land conflicts. We recommend that, guided by research, concerned governments should consider emulating other countries like Tanzania and Botswana, which have enacted “bespoke” land laws that are specifically meant for state land, and other land laws specifically for customary land.

A tragedy of errors? Institutional dynamics and land tenure in Finnmark, Norway

Reindeer herding in Finnmark has been widely perceived during the last few decades as a perfect example of the tragedy of the commons. The present article claims that this discourse relies on flawed assumption regarding land tenure. Our historical analysis of the term 'common' in relation to resources in Finnmark shows the term to reflect a misunderstanding of local categories, practices, and concerns related to pastures, territories, and natural resources more generally. In this sense, it exposes a case of 'mistaken identity' between the formal legal conception of 'commons' and the customary rules and thinking of reindeer herders. We turn to different strands of critical institutionalism to analyse the processes of institutional change that have allowed these errors and misunderstandings to be formalised and naturalised in the current governance system. We show that a process of institutional bargaining between the Norwegian Parliament, the Sami Parliament, and the International Labour Organisation has recently re-enforced an alien conception of a 'commons' to which ambiguous groups of people have equivocal rights. In parallel, a process of institutional layering of new regulatory actors and rules on top of existing ones has taken place. This regulatory ratcheting has resulted in the blurring of the authorities and jurisdictions intrinsic in the customary tenure system. Moreover, the new layers of regulations have actively overemphasized the Sami customary obligation of sharing resources to legitimize

A tragedy of errors? Institutional dynamics and land tenure in Finnmark, Norway

Reindeer herding in Finnmark has been widely perceived during the last few decades as a perfect example of the tragedy of the commons. The present article claims that this discourse relies on flawed assumption regarding land tenure. Our historical analysis of the term ‘common’ in relation to resources in Finnmark shows the term to reflect a misunderstanding of local categories, practices, and concerns related to pastures, territories, and natural resources more generally. In this sense, it exposes a case of ‘mistaken identity’ between the formal legal conception of ‘commons’ and the customary rules and thinking of reindeer herders. We turn to different strands of critical institutionalism to analyse the processes of institutional change that have allowed these errors and misunderstandings to be formalised and naturalised in the current governance system. We show that a process of institutional bargaining between the Norwegian Parliament, the Sámi Parliament, and the International Labour Organisation has recently re-enforced an alien conception of a ‘commons’ to which ambiguous groups of people have equivocal rights. In parallel, a process of institutional layering of new regulatory actors and rules on top of existing ones has taken place. This regulatory ratcheting has resulted in the blurring of the authorities and jurisdictions intrinsic in the customary tenure system. Moreover, the new layers of regulations have actively overemphasized the Sámi customary obligation of sharing resources to legitimize the new, ambiguous, conception of commons. This process is explained as one of institutional bricolage based on naturalisation by analogy and authority processes that allow certain powerful actors to influence the production of institutional arrangements favourable to them. All three processes underline the negotiated, dynamic nature of institutional change. We propose this integrative analysis of institutional and general social dynamics is beneficial in studying commons as everyday practices affecting natural resource governance.

Lineage and land reforms in Malawi: Do matrilineal and patrilineal landholding systems represent a problem for land reforms in Malawi?

Based on government statistics and interviews with villagers across Malawi this article argues that customary matrilineal and patrilineal land tenure systems serve to weaken security of land tenure for some family members as well as obstructing the creation of gender-neutral inheritance of lands. Data from the National Census of Agriculture and Livestock 2007and the 2008 Population and Housing Census are used to characterize marriage systems and landholding patterns of local communities. Marriage systems correspond to customary land-tenure patterns of matrilineal or patrilineal cultures. The differences between the two ways of land holding represent a challenge for land reforms aimed at unifying rules for land tenure and land devolution. Drawing on an analogy of the resilience of the patrilineal land holding system in Norway, we argue that it will be difficult to remove the preferential rights of lineage members directly. We recommend that, instead of creating a unified national system, existing land rights should be formally recognized and circumscribed by fair procedures. A well-designed landholding system should aim to ease the transitions of diverse customary tenure systems towards the requirements of a modern large-scale society.

The Impact of Land Property Rights Interventions on Investment and Agricultural Productivity in Developing Countries: a Systematic Review

We conducted a systematic review on the effects of land tenure recognition interventions on agricultural productivity, income, investment and other relevant outcomes. We synthesise findings from 20 quantitative studies and nine qualitative studies that passed a methodological screening. The results indicate substantial productivity and income gains from land tenure recognition, although gains differ markedly by region. We find that these effects may operate through gains in perceived tenure security and investment; we find no evidence for a credit mechanism. The qualitative synthesis highlights potential adverse effects. A conclusion emphasises the need for further research on inter-regional differences and on the role of customary tenure arrangements.

Who Owns the Land? Perspectives from Rural Ugandans and Implications for Large-Scale Land Acquisitions

Rapidly growing demand for agricultural land is putting pressure on property-rights systems, particularly in Sub-Saharan Africa, where customary tenure systems have provided secure land access. Rapid and large-scale demands from outsiders are challenging patterns of gradual, endogenous change toward formalization. Little attention has focused on the gender dimensions of this transformation. However this contribution, based on a 2008–09 study of land tenure in Uganda, analyzes how different definitions of land ownership – including household reports, existence of ownership documents, and rights over the land – provide very different indications of the gendered patterns of land ownership and rights. While many households report husbands and wives as joint owners of the land, women are less likely to be listed on ownership documents, and have fewer rights. A simplistic focus on “title” to land misses much of the reality regarding land tenure and could have an adverse impact on women's land rights.

Exploration of rainfed rice farming in Uganda based on a nationwide survey: Evolution, regionality, farmersand land

Based on a nationwide survey of rice growing households, this paper explores how rainfed rice cultivation evolved in Uganda, how diverse it is in different regions of the country, what categories of farmers have adopted it, and how it has been integrated into their traditional cropping patterns. We find that the diffusion of rainfed rice cultivation accelerated at around the turn of this century when upland New Rice for Africa (NERICA) was introduced in the agro-ecological zones receiving annual rainfall of 1000 mm or more. The growth rate of area under rainfed rice cultivation from 2000 to 2009 was 14% year-1 in the lowest zone and as high as 31% year-1 in the highest zone. Rice was grown predominantly by smallholders. Farmers growing rainfed rice, upland and lowland alike, cultivated on average 2 ha of farm land, of which one-third (0.6 ha) was planted to rice, and the sizes of cultivated area and rice planted area of around 70% of farmers were below these averages. In terms of land tenure systems, rice was a crop of more importance in areas where the traditional customary tenure systems still remained, and the incidence of leasehold land tenure was higher for rice cultivation than for other crops. Key words: Agro-ecological zone, farming system, land holding, land tenure, lowland, New Rice for Africa (NERICA), size distribution, upland.

Tenure Constraints and Carbon Forestry in Africa

Our analysis shows that landowners with customary tenure in Africa can be efficient providers of carbon forestry if tree planting helps secure their permanent claims to the land. If the farmer's tree planting can reduce the threat of eviction, the amount of land allocated to carbon forestry may be greater or lesser than under private ownership, but it is always more than if tenure security is completely absent. Our results support the view that carbon forestry schemes should accommodate traditional African customary tenure systems, and if designed successfully, can both promote carbon forestry and benefit the poor.

Artisanal chainsaw milling to support decentralized management of timber in Central Africa? An analysis through the theory of access

During the last decade, in Central Africa, timber volume of the artisanal chainsaw milling (CSM) sector, mainly for domestic markets, has exceeded that processed by the export-oriented industrial sector. However, due to lack of legal alternatives, CSM is largely an informal activity. We rely on the theory of access to understand the mechanisms of access to timber resources, and to the income derived from their use, implemented by local actors to participate in the growth of this informal sector. Among eight common access mechanisms, two have played a particularly important role in the development of CSM for the benefit of rural economies. On the one hand, the growth of CSM was built on the customary tenure system, by valuing traditional knowledge and abiding by the traditional rules of access to trees. On the other hand, domestic timber markets remained accessible to independent operators in Cameroon, in Central African Republic and in Gabon, but the situation is less true in Republic of Congo and in Democratic Republic of Congo.Even if the financial impacts of CSM are substantial for rural economies in Central Africa, the application of the theory of access cannot conclude that this activity supports a decentralized, democratic and sustainable management of timber resources. Two elements lack in this analysis, the accountability of resource managers and the ecological sustainability of the harvest. These issues could be better addressed through a fine-tuned formalization of the CSM sector that would not compromise its present positive impact on rural people's livelihoods.

Compulsory Acquisition and Urban Land Delivery in Customary Areas in Ghana

Most land in Ghana is held by communities under customary tenure. About 20% of land in Ghana was acquired through a legal process of compulsory acquisition by the government. This process extinguishes all proprietary and jurisdictional rights, titles, or other interests vested in the stool (traditional authority) or any other person. Among other things, compulsory acquisition aims to provide land for public purposes, to correct economic and social inefficiencies in the use of land and also to deliver on broader goals of social justice and equity in the land sector through the redistribution of land. Most compulsory acquisition laws make provision for prompt payment of adequate compensation for those who are dispossessed, but this has not always been the case resulting in disputes. This paper adopts a case study approach in Tema (Accra) and Aprade (Kumasi), Ghana, to investigate compulsory acquisition and to assess the consequences of this process on urban land delivery. The study seeks to understand why the affected communities have re-occupied land that was acquired from them through compulsory acquisition many years ago. The paper concludes that the general policy on compulsory acquisition is in need of review while the payment of compensation requires further detailed investigation. Keywords :Customary land, customary tenure systems, traditional authorities, peri-urban land, land tenure, good governance, land administration, compulsory acquisition

Land sales and the transformation of social relations and landscape in peri-urban Mali

Small-scale land acquisitions are transforming long-standing human–land relations in West Africa. In particular, high rates of urban population growth lead to the transfer of land from non-market customary tenure systems to market-based, formal land tenure regimes on the edges of cities. The literature suggests that the conversion process from inalienable land to private property is highly contested, locally specific, and historically contingent. However, little is known about how this process affects a community. In the Kati cercle on Bamako’s peri-urban eastern edge with exponential growth in land registration, this village case study examines: (1) how residents secure livelihoods, and (2) how the advent of a land market affects livelihood strategies. Interviews conducted in 2011 in the village of Soro complement data collected in 1996 and 1987. The longitudinal data show increases in population as well as indicators of relatively stable livelihood strategies. Since 2001 only men in the chieftancy lineage and families close to it have sold land, and that land was of least value to them using the subsistence logic of grain production. Those authorizing land sales at the local level are also the immediate beneficiaries. Land privatization reduces access to resources for those with secondary land rights recognized through social relations in a customary tenure system. This study concludes that public policy in areas undergoing land conversion – especially peri-urban areas – should consider the impact of social differentiation in communities and how new land values will change land use and access.

The political ecology of land management in the oil palm based cropping system on the Adja plateau in Benin

The Adja plateau (Benin) is densely populated by tenant and landowner farmers engaged in oil palm based cropping. Landowners use oil palm sap for the production of sodabi (a local spirit), and an oil palm fallow (if no crops are grown beneath the palms) to restore soil fertility. In this area, growing oil palm for its oil is uncommon. Tenants access the land under specific contracts but are not allowed to plant oil palm. They grow food crops beneath the oil palm and extend the cropping period by severely pruning the palms because their right to grow food crops terminates when the palms reach a height of 2m. The competing claims between landowners and tenants and between oil palm and annual food crops result in conflicts over practices that either degrade or restore soil fertility. Using a political ecology perspective, we examined how two overlapping institutions shape access to and management of the land: the customary tenure system and the legal system that was introduced to regulate titling and contracting. These institutions have divergent implications for tenants and landowners, in terms of both social equity and land management practices. The implications of this institutional patchwork (bricolage) for joint learning to achieve sustainable agriculture are discussed.

Customary tenure systems under siege: contemporary access to land in Northern Ghana

Land in most of Africa is controlled under the customary tenure system which is governed by well intentioned social and cultural rules meant to grant equal access to families within groups with common interest in land. Rapid changes in the domestic situation of countries resulting from both refractions of policies and influences from the global economy and emerging complexities within the local socio-economic context has altered the traditional land tenure systems in most parts of Africa. In the rural setting and for agricultural purposes, the customary tenure system seems to be crumbling slowly, while in the urban centres and for housing, industrial and commercial purposes the system has collapsed in favour of a commoditised one. The emerging patterns of access in Northern Ghana show growing inequalities in access, control and ownership. There is the need for a new architecture of land rights negotiated by a participatory process and regulated by both state and traditional institutions.