Customary Tenure Research Articles

The Current Updates of the Progresses and the Challenges of Recognition of Customary Forests in Indonesia

Around 30 million Indonesians are forest-dependent, comprising a large portion of customary communities. For generations, customary communities managed forests using customary arrangements as the normative system. However, the state legal framework required the communities to obtain legal recognition to exercise these traditional forest rights. Over the last seven years, the state has formalized hundreds of thousands of hectares of customary forest, which was unprecedented. Some suggested that the number needed to be increased and far less than the potential customary forest areas. Therefore, this research aimed to examine the primary cause and the subsequent impacts on the low number of recognized customary forests. Relevant data were obtained for analysis from documents and direct interviews. The result showed that customary tenure on forest resources coexisted with the state arrangements. The state recognized those customary arrangements through formalization. However, the ideological and political perception and the state's interests regarding customary communities have brought obstacles to that sound policy regarding recognition. This perception and interest further raised three issues regarding the current legal framework and its implementation: complex regulation, delayed processing time, and ambiguous standards.

Large-scale agro-industries and host community land restitution demands: understanding the land-use conflicts between the CDC and Fako elites in the south west region, Cameroon

Large-scale land acquisition has been frequent in most parts of Africa. This frequently led to extensive dispossession among other pitfalls of violation of indigenous land ownership rights. A significant proportion of Fako division’s fertile slopes and plains were expropriated by the Germans for implantation and development of plantations. Ownership rights of indigenous community lands were transferred without the legal consent of the rightful native authorities. Against the backdrop of this colonial intrusion and consequential violations of local customary tenure rights, the growing need for justice and restoration of dignity has been a shared value among a preponderant proportion of the local Bakweri ethnic group. This culminated to a restitution decision of CDC leased lands to the Bakweri by the African Commission on Human and People’s Rights. Nonetheless, the proportion of restituted lands has not been significant and satisfactory enough to conciliate the expropriated host communities of the extensive CDC leaseholds. As such, landownership contestations and its consequential socio-political tensions still persist in Fako. This paper is centered on yet a more frequently expressed contestation: encroachment into and occupancy of CDC leaseholds by natives of Fako as a whole and Ndongo of Tiko sub-division in particular. Prior extensive documentary review was done which pointed to the locality of Ndongo as a suitable case of interest. Contrary to the general land grabbing tendencies of agro-businesses, community members here are accused of unauthorized intrusion into and tenancy of lands with legal ownership rights belonging to the CDC. The study was ethnographic comprising of individual in-depth interviews and observations.

Customary land management systems and urban planning in peri-urban informal settlements

Customary land management systems are informal, community-driven land-use regulation systems that adapt zoning regulations and customary tenure to cooperatively self-regulate land-use management in multi-ethnic peri-urban settlements. The research uses an integrative literature review to critically re-evaluate the various concepts and practices of customary land management, their impact on the unique morphology of peri-urban areas and their relationship with urban planning. The research results indicate that customary land management systems are intrinsically linked to peri-urban settlements due to their polymorphic spatial structure and complex social groupings. It provides a simplified accessible and affordable land management system with multiple avenues for agency and a balance of power between different authorities. This generates a new set of social relations around neo-customary tenure. Customary land management systems are also linked to urban planning within a dual regulatory structure, combining formal policies and informal customs and providing alternatives for exploitative and exclusionary processes in weak and inefficient states.

Privatisation of the commons: land ownership, access, and exclusion among the Karrayu pastoralists of eastern Ethiopia

ABSTRACT This study critically examines the effects of communal land privatisation and certification linked to the state-sponsored irrigation project in the pastoral area. It is based on ethnographic fieldwork among the Karrayu pastoralists in eastern Ethiopia. The findings indicate that subdivision and certification excluded many pastoral individuals and groups from accessing their ancestral land. Some were not allocated land; all, including those who were allocated a parcel, lost access to the rest of the land to which they previously had access; and some of those who were granted ownership rights were also unable to reap the full benefits of their holding due to structural-relational factors constraining their power to do so. Thus, the article suggests the importance of monitoring the process to protect the rights of disadvantaged groups as well as strengthening the customary tenure rather than rushing to replace it.

A Fractured State: Local Powers and Mining Politics in Rural North-Western Zambia

This study employs an explorative case study methodology, which utilises interviews, historical analysis and observations to identify and analyse the local powers and politics that influence large-scale mining development in developing societies. It uses the Trident Mine Project in Kalumbila in rural North-Western Zambia as a case study. The Trident Project comprises an existing copper mining/processing operation at Sentinel Mine and a nickel mining development project at Enterprise Mine. It is owned by Kalumbila Minerals Ltd, a subsidiary of the Canadian-listed metal and mining company First Quantum Minerals Ltd. Situated on land previously managed under customary tenure, the Trident Project presents a useful case study to explore the tensions and contradictions that arose in this large-scale mining development. The findings reveal how several local actors influence large-scale mining and the nature and direction of the mining-induced socio-economic benefits. This implies that the state is not limited to a duality (civil and customary powers) of the type identified by Mahmood Mamdani. Instead, the paper explores several public and ‘private’ power poles that often function as a fractured state.

Risk Of Eviction And Women’s Technology Adoption: Some Evidence From Southwestern Nigeria

ABSTRACT: In the presence of tenure insecurity that many women face in developing societies because of patriarchal norms, farmers may not adopt farm technologies because there is no assurance of reaping the benefits. This article examines how the risk of eviction affects women’s fertilizer use and adoption of early maturing seed varieties. For the empirical analysis, I employ individual-level data that was collected from 180 women rice farmers in southwestern Nigeria with a multistage sampling technique and analyse the data with both econometric methods that address possible endogeneity issues and those that do not. I analyse the relationship between the risk of eviction and fertilizer use with the Two Stage Least Squares (2SLS) and Ordinary Least Squares (OLS) methods and analyse the relationship between the risk of eviction and the adoption of early-maturing seed varieties with the Two Stage Conditional Maximum Likelihood (2SCML) and probit methods. I find women who are cultivating family-allocated, husband-allocated and purchased plots to be significantly less likely to have fears of eviction than those who are cultivating fixed-rent plots, even as the risk of eviction have different effects on fertilizer use and on the adoption of early-maturing rice varieties respectively. While it makes the women spend less on fertilizer, it makes them more likely to adopt early maturing seed varieties. These would suggest that the women are responding to the unfavourable production environment from tenure insecurity with lower investments in soil fertility and shortened time horizons towards minimizing their losses in the event of eviction. The results also suggest that the women may invest in soil fertility if the operating environment becomes more favourable with better tenure. The policy implications of the findings are thus evident. Women are evidently not averse to adopting farm technologies by default; to thus improve adoption rates of farm technologies, policymakers should adapt technologies to local socioeconomic conditions, while exploring how to make tenancy contracts and the social norms that underpin customary tenure systems more amenable to granting women tenure security. These would help protect land resources from degradation, make agricultural incomes sustainable, and facilitate socio-economic development.

Analyzing Customary Tenure Practices for Enhanced Land security in Awka South L.G.A

This research paper explores existing perspectives on improving access to land security within the context of Customary tenure practice in Awka South L.G.A, Nigeria. Land security is a critical aspect of property ownership and tenure, influencing socio-economic stability and development. Through a comprehensive literature review and case studies, this paper aims to identify key challenges and potential solutions in Customary tenure practices to enhance land security. The findings contribute to the ongoing discourse on sustainable land management and policy development.

Sugarcane Plantations and the Alienation of Land from Smallholder Farmers through Out-grower Schemes in Busoga Sub-Region in Eastern Uganda

Despite wide research on land grabbing in Africa, much of the existing literature restricts the practice mainly to a situation where land is leased or sold to outside investors for the production of food and biofuel for export to the western world. This paper extends the debate further by examining how local sugarcane companies and individuals in Busoga Region in Eastern Uganda force smallholder farmers to surrender their land willingly through the out-grower schemes based on contract farming or private sugarcane production. Using a qualitative methodology that relied mainly on interviews of key informants and documentary reviews, the paper analyses the nature of the contemporary land alienations through contract farming between plantation agriculturalists and smallholder farmers, and how it has affected the livelihood of the peasants in the Busoga region especially when it comes to the production of sugarcane for sale at the expense of food for local consumption. The findings show that in the areas where sugarcane production through the out-grower schemes is the dominant economic activity, land alienation for sugarcane growing is rampant as the sugar companies and the agro-business farmers lure local peasants who mainly own land on customary tenure to grow sugarcane at the expense of producing food crops. The paper concludes that this is a new form of land grabbing in Uganda.

Governing land use planning in pursuit of customary tenure security: A case of Kilombero District in rural Tanzania

Purpose This paper aims to explore the role of participatory governance to actors’ participation in land use planning for tenure security in rural Tanzania. Three case studies where land use planning project implemented were selected to make assessment on how local actors were involved in the process. Design/methodology/approach This paper uses qualitative research methods, whereby semi-structured interviews with village landholders and key informants were conducted to get their perspectives on land use decisions and land tenure (in)security. Besides, focus group discussions with the village landholders were also used. Findings The research findings indicate low participation of local actors in land use planning process. Decisions on land use by the local actors were very minimal. Further, communication between the involved actors was also difficult. Originality/value The study offers insights on participatory governance into land use planning for tenure security. The study develops a framework to improve land use planning process toward tenure security outcome. A tri-partite strategy consisting of enabling mechanisms of governance capacity, institutional capacity and converging discourses articulates a framework for the evolution in the degree of local actors’ participation to improve security of land rights through land use planning process in rural Tanzania.

Overlapping land rights and deforestation in Uganda: 20 years of evidence

The majority of the world’s land is held in customary tenure systems, often with overlapping claims. Designing effective policy to reduce emissions from deforestation and degradation requires understanding land management choices within these systems. Using a nation-wide random sample of over 300,000 hectares of forested land in Uganda from 2000 to 2019, we examine how deforestation trends across a system of overlapping rights, known as mailo land tenure, change in response to legal amendments intended to increase land tenure security. Graphical analysis reveals that mailo land has always had higher deforestation rates, compared to private and customary land, which increased relative to other tenure systems beginning in 2010 when a law was passed to protect tenants on mailo land. Statistical analysis controlling for spatial and time effects shows that prior to 2010, trends across tenure systems were similar. After 2010, deforestation increased significantly on land with overlapping rights and then began to decrease after 2017 relative to rates on customary or fully privatized land. We hypothesize that the uptick in deforestation resulted from unintended, increased uncertainty generated by the 2010 law, which changed owner/tenant relations on land with overlapping rights. The decrease in deforestation rates after 2017 was consistent with increased tenure security from an acceleration in the uptake of permanent certificates of occupancy. These findings demonstrate that outcomes under systems of overlapping rights can be destabilized by well-intentioned reform, and that securing tenant rights can reduce deforestation.

Demystifying Contemporary Customary Land Tenure in Legally Plural Southern Africa

In this article, we seek to redebate the question: what actually do we mean when we talk of customary land tenure system in the post-independence southern African region? We frame the debate within the concept of legal pluralism and apply a critical hermeneutic approach to analyse terms and vocabulary that are often used to construct the meaning and discourse of customary tenure in Africa. Hermeneutics emphasises the role of meaning in enabling us to gain knowledge or constrain us from gaining knowledge of phenomena, objects and concepts. We ask very serious, but sometimes unconventional, questions about the way the concept of customary tenure gets to be framed in contemporary writings. The questions include whether terms such as “right”, “property”, “communal” and “traditional” are appropriate descriptors to use in the domain of customary land tenure. Yet a more controversial, albeit very important, question we raise is whether customary land tenure system is, a priori, discriminatory to women. In the article, we make two major conclusions: first, contemporary customary tenure is a fundamentally bastardised version resulting from several initiatives of state intervention, and second, uncritical deployment of foreign concepts by researchers has significantly constrained our opportunities to understand what customary tenure is. In the light of this, we recommend that future research critically scrutinise the meaning of terms and the impact of state policies on customary tenure.

Custom, modernity, and stability of land rights in Ghana: An empirico-legal review

Land in Ghana is mostly governed by customary tenure systems. The sole purpose is ensuring the egalitarian use of land resources to secure the welfare of customary families and individuals with common interest in land. However, a confluence of issues including obstinate national policies on land, globalization, and land grabbing, and changing socio-economic context, have synergistically altered the customary regimes with varied and complex consequences for rural land access and use rights. This paper through narrative literature review unpacks the legal regime for customary land governance on the one hand, and empirical studies on the other, to understand the extent of destabilization of the bundle of rights in Ghana’s property rights regime. This review shows the different bundles of rights examined have different levels of stability. Access and use rights remain the most stable, use, and withdrawal rights are under severe stress, while exclusion and alienation rights seek to strengthen chief authority over land. The trusteeship role of chiefs has been replaced by powers resembling absolute ownership, thereby tacitly supporting the alienability of land by chiefs, a development unintended by customary land governance relations.

The recognition and formalization of customary tenure in the forest landscapes of the Mekong region: a Polanyian perspective

ABSTRACT Commodity-driven deforestation and forest conservation efforts in the Mekong region have placed multiple pressures on community-based resource systems, undermining tenure security and livelihoods. In response, several initiatives have been mobilized by states, communities, and civil society organizations which aim to recognize and formalize customary forest tenure rights. We draw on insights from Polanyi’s dialectical movement of market expansion and social protection to examine these protective measures as counter-movements that combine forms of state-controlled recognition, community pushback contestations, and more emancipatory movements. We show the omnipresence and contradictions of the state in shaping these counter-movements and the multiple ways in which communities construct new forest tenure arrangements. While there have been important forest tenure reforms and the setup of state-sanctioned mechanisms to give communities greater rights and responsibilities over forests, the process and outcomes of community rights formalization are found to be highly uneven and contingent.

Variations of Customary Tenure, Chiefly Power, and Global Norms for Responsible Land Investments in Sierra Leone

Abstract In response to debates around land grabbing, the international community has increasingly developed and promoted global governance norms and guidelines for more responsible land investments. This concern on the part of the international community has particularly taken hold in Sierra Leone—in a post-war context, in which international donor agencies are already steering much of the country’s politics. Yet, despite the enormous influence of international guidelines and the actors promoting their use, there is a spatial variation in the conformity to and effectiveness of such norms in cases of land investments. While some projects seem to resemble ‘showcases’ for their exemplary use, these guidelines seem to be absent in other projects. This article analyses the political economy of customary land tenure, land investments, and international ‘soft laws’ in Sierra Leone. Based on 6 months of fieldwork in Sierra Leone in 2019, I compare several cases of large-scale land investments. I argue that there are important variations in the customary tenure system in the degree to which political authority over land is centralized in the authority of the paramount chief or is devolved to landholding families. This, I suggest, holds important implications for the uptake of global norms for ‘responsible’ investments.

Post-conflict restitution of customary land: Guidelines and trajectories of change

Since the 1990s a body of soft international law and public policy has developed around property restitution after conflict. The Pinheiro Principles and the Voluntary Guidelines for the Responsible Governance of Tenure of Land, Fisheries and Forests (VGGT) both proffer remedies for property losses experienced due to violent conflict and forced displacement. These international guidelines for remediating harm caused by property loss or damage in conflict at best only partially address losses in customary tenure systems. This article has two goals: first, to delineate where the international guidelines are out of step with the nature of customary tenure; and second, to identify trajectories of change for customary land tenure systems after violent conflict. These two issues are fundamentally linked. The characteristics of post-conflict environments– contested authority structures, displaced and returning populations, and contentious land relations – make customary land vulnerable to expropriation and elevate the threat of asset loss for customary rights holders. This challenges the assumption that people can always return to rural agricultural livelihoods when displaced from customary land; that is only true if those customary land systems function the way they did before the violence. This article draws on a socio-legal analysis of secondary sources and qualitative data gathered by the authors through focus group discussions and semi-structured interviews in rural communities in Burundi, Liberia, and Uganda over the past decade. Because customary land tenure systems are prevalent over much of the territory currently affected by violent conflict in Africa, the Middle East, and Central Asia, the absence of specific restitution policies for customary tenure systems is a significant gap in international public policy.

Fisheries tenure arrangement in China: Legislative ambiguity, judicial settlement conflicts, and the gap in protecting traditional fishers’ rights

With fish stocks declining and fishing control improving, the delineation of rights and restrictions over fisheries resources for small-scale fisheries needs to be attached with more attention globally. As China’s social and economic environment changes, Chinese traditional fishers have also been facing growing challenges in maintaining their customary fisheries operation. With this as the core issue to be addressed, this paper examines the legislative status of fisheries tenure rights in China and the judicial opinions on disputes involving overlapping users’ rights to fisheries-related resources. It adopts a qualitative empirical analysis by reviewing two cases between long-practicing fishers and other entities and by generalizing nine other cases with similar factual backgrounds. It finds that the ambiguous tenure rights legislation in China cannot provide a solid basis for Chinese traditional fishers to affect fisheries-related decision-making processes. As a result, Chinese courts give incompatible judgments without sufficient consideration of traditional fishers’ customary tenure rights. A normative analysis of traditional fishers’ tenure arrangement in China is also rendered, mainly by drawing on the guidelines of FAO on sustainable small-scale fisheries. Then, this article provides suggestions for legislative improvement with a human rights dimension, including enhancing traditional fishers’ participation in decision-making processes and strengthening their property rights protection. This article offers a new perspective on the relationship between traditional fishers’ well-being, administrative powers, and legislative and judicial protections.

Safeguarding customary forest tenure in the Mekong Region: a legal analysis

ABSTRACT Customary forest tenure is under increasing pressure from various actors for economic, political, and environmental purposes. The erosion of customary forest tenure can impair societal nature relations, erode traditional practices, and contribute to environmental degradation. In the Mekong Region, customary forest tenure largely remains unprotected through national laws. This article presents a legal analysis examining the extent to which the legal frameworks of Cambodia, Lao PDR, Myanmar, and Vietnam contain legal provisions for safeguarding customary forest tenure within different resource systems, agricultural land, swidden land and forests, drawing on Schlager and Ostrom’s bundle of property rights. The legal analysis shows significant gaps exist in legal frameworks to safeguard customary tenure. We recommend that policies toward statutory recognition be developed from the ground up and consider the harmonisation between land and forest laws and relevant implementing ministries.

Exploring the Tenure - Democracy Nexus on Customary Land Right Holders

In Zimbabwe, as in many African countries, land remains a basic strategic asset for those who live in the rural areas. Particularly, for those people in customary tenured areas, access to land is negotiated through identity. Most Zimbabweans either live or have land rights in customary tenure areas. Here, land is not a commodity that can be traded nor is it regarded as an individual asset. Disputes related to access, ownership and use of customary tenure land are handled in traditional courts presided over by chiefs and their subordinate structures. Those who dwell in customary tenure areas have no direct relationship with civil courts, where private property disputes are resolved, but instead, must go through the traditional courts. In one of my earlier publications, I have argued that the involvement of traditional courts in customary land tenure issues is the hallmark of classical citizenship. While I continue to proffer this argument in the current study, the study also illustrates how traditional authority has, over the years become an appendage of the state through strategic measures which include salaries for chiefs, vehicles, rural electrification, and power that comes with being entrusted with the role of distributing subsidies. Additionally, the exclusion of customary tenure areas from formal financial services means that households are at the mercy of government led subsidies which are steeped within the political interests of the ruling party ZANU-PF. In many cases, government subsidies end up being used as incentive to support the incumbent party. In such instances, elected officeholders take the lead in the distribution of these subsidies. The relationship between land tenure and democracy is perhaps the most compelling for reforms, but rarely discussed. In this study I expand on my previous interventions by arguing that the ways in which land is held in customary tenure areas and the existing subsidy regimes have played a critical role in restricting rural residents’ autonomy to make autonomous political choices. I further argue that the autonomy to choose is mostly compromised in contexts where access to productive resources such as land, markets, mechanical, financial, and physical capital are negotiated through subservience to traditional authorities who are politically affiliated.

The relationship of land tenure, land use and land cover changes in Lake Victoria basin

Water basins characterise both physical and social environmental aspects such as land tenure. As such, the basins extend beyond spatial units of physical resources and human relations analysis to policy research and reform units. The comprehensive view of water basins in research goes along with an observed increase in anthropogenic-driven changes, such as land use and land cover changes, and cases of ineffective remedial measures to the adverse change, such as through applying integrated watershed management approaches. The human-induced land cover changes affect the water basin’s biodiversity, for instance, contributing to an increase in zoonotic disease outbreaks like coronaviruses. The Lake Victoria basin exhibits similar patterns of change and effects due to, among other factors, land tenure, whose contribution is less known empirically. Therefore, this paper integrates satellite imagery and catchment survey data to examine the relationship between land tenure and land uses and land cover changes in the Lake Victoria basin of Eastern Africa.Additionally, explore the contextual character and role of three land tenure systems of Customary, Native freehold and Mailo found in the Uganda country segment of the basin in explaining the outcomes. The aim is to provide information that, among other benefits, improves water basin management and governance. The results indicate a statistically significant relationship exists between the perceived extent of land use and land cover change; drivers of change; the extent of adopting sustainable land-use practices, and the prevailing land tenure. Though with different tenure systems, the three case study water catchments experienced adverse land use and cover changes. The changes mainly affected land tenure indicative land use and cover classes, prominently on the Customary, Mailo, and Native freehold land tenure systems. However, marginal differences occur among the land tenure systems, as the systems feature both de jure and de facto systems and an orientation towards customary tenure characters. The situation likely explains the observed closeness in perceptions regarding the role and relationship between land tenure and land use and cover changes, tenure systems character, perceived drivers of change and eventual outcomes, including the sustainable land use practices adoption. In addition to explaining the land use and cover change, land tenure is an essential tool for restoration and sustainable basin development and sustainability. We, thus, recommend land tenure responsiveness in water basin management approaches for sustainable societal development.

Women and Land Tenure in Zambia: Legal and Customary Challenges for Women

Zambia has a dual land tenure system recognized by the constitution and land policy which govern land in all parts of the Country. The Customary system governs the land under the control of traditional leaders while the statutory tenure system governs all land that is titled. In 2021, just before the general presidential and parliamentary elections, a new land policy was launched in Zambia with a 50% provision of land to all women. The new land policy aims at gender equality in land ownership in line with the Southern African Development Community (SADC) and African Union (AU) protocols. This policy has a gender component that deals specifically with the requirement of allocating land to women, the youth and disabled people. Even under statutory land, gender inequalities still remain minimally challenged same despite policy pronouncements which are rarely transformed into political actions intended to deal with gender inequalities in land ownership which is a serious problem among poor women in all the ten provinces. In all these provinces, women are the minority in terms of land ownership in both urban and rural communities. This situation is compounded by the high poverty levels and illiteracy among both urban and rural women. Provisions of gender equity measures in policies are important steps towards gender equality and should be encouraged all the time and policy reviews should equally take on board emerging issues from time to time. However, the current situation in the country of formulating policies with gender inclusive measures seems to be an end itself because policies are not accompanied by practical programmes aimed at dealing with gender inequalities in different locations and remote communities where the customary tenure system remains unchallenged. Government interventions through land policies have achieved some gains but more would have been achieved if deliberate programmes were instituted on land redistribution especially on statutory land to ensure that the disadvantaged groups even among women benefit from policy changes. Ratification of international conventions that are aimed at combating gender discrimination should be accompanied with practical programmes and policies which should be monitored and evaluated from time to time to ensure that practical progress is made in eliminating gender inequalities in land ownership.