Contemporary Land Tenure Frameworks In Africa

Contemporary Land Tenure Policy Frameworks: Analysis of Land Policy Directives on African Socio-economic Development

African Studies 301 (L01) Dr. C. Apentiik December 5, 2007

2 Land reform has become a very active area in the analysis of contemporary African development. Different approaches and novel analyses on the growth potential of new land tenure agreements have brought forth new optimism from policy analysts and governments alike. This has not materialized separately from the international IPR (Intellectual Property Rights) revolution, which started in the mid 1980s. The protection of property in all forms has been advocated through many international agreements and international institutions. Efficient use of resources, primarily land, has come to be seen as a means to an end, creating efficiency and subsequently growth.1 Debates on the prospects of land privatization have been very polarized, with many analysts either in support of legal administrative tenure reforms, or strictly opposed. Although the issue of land reform seems to be a novel way of approaching legal structures, and wider development issues as advocated by the work of researchers such as De Soto, there is historical evidence to show the advent of such reforms through indigenous mechanisms by Africans themselves.2 It is in this regard where the issue of land privatization must be clearly examined. The advent of contemporary land reform dictates in Africa has been advocated externally by international institutions as part of wider liberalization mechanisms. Although the impetus for land reform itself began as a process of demands by rural constituents in African countries, the issue has come to be analyzed not in the allocation of tenure, but in the re- examination of the legal provisions of land tenure itself.3 Thus land reform has not taken into consideration the effects on Africans, but instead the prospects for macro-economic growth. Legal protection given to one’s property has its roots in European political history in the writings of philosopher John Locke. Locke believed that if one took land and mixed one’s labour into it, the land would subsequently be justified to be one’s property, as the respective

3 individual had toiled their labour into the land. In The Second Treatise of Government he writes, “As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He, by his labour does, as it were, enclose it from the common.”4 It is to this end that the idea of property ownership was brought in by colonial administrators to their colonies. By the late 1800s social dynamics in Britain changed the way in which colonial administrators would oversee property. Urban unemployment was growing in Britain as many rural migrants were moving to the city in search of work, to combat this phenomenon, administrators in Africa made community control of land a means to help deter this rural -urban migration.5 This mechanism was also used as a way to ensure easier administration, as Africans were not allowed to have access to their own property. Thus despite London’s disapproval of large holdings and condemnation of racial discrimination in land allocations in Kenya for example, a sweeping land ordinance approved in 1915 gave white settlers almost all they had hoped to gain.6 Thus the non-market mechanism employed by administers in overseeing customary tenure in Africa is as much a colonial construction, as is the observation made that is an extension of African value systems.7 The 1930s showed a growth in land degradation and poverty in many rural areas, colonial powers thus moved to find ways to promote commodity production by providing investment, and market regulation to help bolster economic progress.8 Thereby paving the way to reorient the very system of land allocation the colonizers had helped instrument. Thus individualization of land holdings was promoted as a mechanism for long-term growth. Yet up until the 1980s customary tenure stayed the norm, except for cases where national

4 governments saw it as an obstacle to agrarian reform, and tried to mend the system by replacing tribal authorities with elected local officials (e.g. Mozambique, Tanzania). 9 By the 1980s polices began to shift and the idea of private tenure as a way to facilitate investment, credit collateral etc was re-introduced as a postulation of overall market liberalization as a means for economic growth.10 Institutions, mainly the World Bank, began talking about the discernible link between property rights, and social/economic development; the former being the precondition for the latter. The World Bank has come to tout secure property rights as much as it mentions institutional governance and the rule of law.11 This analysis has come to connect all shortfalls within major economic sectors as being directly correlated to the lack of secure tenure. The idea behind the World Bank’s multi-pronged development initiative was and still is that secure property will encourage investment and thereby productivity; efficient markets are the only way for growth to occur from the perspective of the bank.12 A key justification for secure property rights is that they provide incentives for investment in land and sustainable resource management. An example is in areas that are naturally suitable for arable cultivation, with low population densities cultivators have no incentive to invest in soil fertility, and instead will practice shifting cultivation.13 This is one of many examples used in World Bank policy reports to help establish its claim for secure land as a means of increasing incentives in productivity. Yet the main rhetoric within policy documents does not focus on mechanisms of how indigenous African farmers can change their investment focuses, but rather on attracting outside investment. This in turn excludes small farmers, due to the inevitably high transaction costs for lending by credit issuers to poor rural farmers.14 Although the World Bank has advocated that the means to implement this legal administrative overhaul must not entail a ‘one size fits

5 all solution’, this has seemed to be the case. Latin America has been used as a reference point for the policy reforms that have been advocated by the World Bank. Yet when examining the history of land reform in many Latin American countries of rents from the ruling class to tenant workers, it is not surprising that most large-scale land reforms were associated with revolts (Bolivia) and revolutions (Chile, China, Cuba, El Salvador, Mexico).15 Although the World Bank maintains that land reform toward private tenure rights is the only way to establish secure mechanisms for free markets, it overlooks the vigorous process in which this has been attained - especially in the context of Latin America.16 The World Bank has produced a variety of influential reports on the issue of land reform since the 1970s, with its policy recommendations influencing the type of development activity financed and supported throughout the world by international financial institutions (IFI’s) and donors.17 The roots of the impetus by external actors such as the World Bank in Africa must be looked at within the context of the overarching goal of these organizations to subject people everywhere to the disciplines of the global marketplace, as only a very strict free-market system is believed to create economic growth.18 Although land policy is advocated as taking into consideration the voices of those it will inevitably effect, beneficiaries have only been heard for brief periods, as was the case in Tanzania before the Village Land Act of 1998. Land tenure was primarily voiced by rural constituents who were looking for more equitable redistribution of land, based on existing common law.19 Yet what has happened is an overhaul of the administration of land laws and acts which have opened land to more favourable investment promotion and protection for foreign investors.20 Thus land policy has not addressed the primary issue for which it began: addressing land issues, primarily of rural

6 African farmers, but has encroached on a new road of land liberalization and means of establishing credit collateral. The urgency pushed forward by the World Bank can be explained by other dynamic macro-economic factors taking place within the African continent. The changing investment climate is being used as a way to attract foreign capital; according to the International Monetary Fund (IMF) real growth in the continent is projected to rise from 5.7% in 2006 to 6.1% this year and 6.8% in 2008. Only about 20% of families in Africa have bank accounts, with small and medium-sized firms struggling to borrow; as private credit accounts for only around 18% of GDP in Africa.21 Africa is thus being touted as a new market with high potential and emerging investment value. This is one dynamic that can explain the push toward reforming legal structures to protect private property, as only through such mechanisms will investors feel safe contributing capital. Therefore the question has been asked what the issue around land tenure in Africa actually is. Customary tenure contracts are already in place through the mechanisms of Africans themselves, and by the processes the colonial administrators themselves helped establish (discussed above), thus land policy has become not about the tenure itself, but on the concentration of tenure rights. This inevitably has only worsened the problems that land reform was to displace within the continent, as it has allowed internal mechanisms to be utilized to re-orient land allocation.22 Land policy has been advocated mainly by external actors such as the World Bank, yet the actual implications within African country contexts themselves have been seldom examined. The mechanism of land reform has come to take on a primarily legal administrative overhaul, and thus has created complex mechanisms, which have in many cases marginalized the poor. Examining the 1998 Tanzanian Land Act demonstrates the hidden conditions that inevitably work against poor peasants and women. The leasing

7 agreements allow for joint ventures of village societies and other investors for a term not exceeding 99 years, yet the implications create disadvantages for those who are not part of the village’s male elite who enter into these agreements.23 The creation of title deeds, as observed in the few African contexts they have been implemented have not shown a greater propensity of access to farm credit, as poor farmers do not understand many of the mechanisms of the new property laws.24 This is no surprise as many of the African policymakers themselves looked to consultants from the World Bank and the British Department for International Development to help translate complex land law. These same organizations have also played a major role in funding land reform since the early 1990’s.25 Furthermore, the major feature of the land reform process has been political, as rent-seeking bureaucrats have been able to use their influence within the land administration agencies to acquire title deeds in a nontransparent manner, confiscating existing informal property rights of local communities or unregistered state lands.26 This has extended into the legal administration of district land boards and committees themselves. In Uganda for example, the new land administration required the creation of forty-five new district land boards, and over 9,000 land committees.27 Thus even though the World Bank advocated land reform as a process to ensure proper governance and the rule of law, the massive creation of such committees may have inadvertently allowed for the abuse of how land holdings would be registered and administered by those appointed to carry out such processes. Lack of administrative capacity in keeping up to date records also posses a threat to mitigating inevitable land disputes, as many countries have not shown a propensity to achieve such administrative capacity. In addition the new land tenure frameworks were created in disregard for traditional local authorities and customary tenure agreements, thus consolidating more control to the state.28

8 Land reform has thus become political within the contexts of African states themselves, particularly when examining Uganda and Tanzania. Woman’s groups began to see the detrimental impacts the land bills would have on woman, especially spouses, due to the fact that commercial lenders found it to their advantage to not have statutory co-ownership provisions.29 Thus due to the lobby of the Bankers’ Association of Uganda for instance, the land act amendment allowing spousal co-ownership was disqualified; the president himself admitted that he had personally intervened to delete the amendment.30 The policy impetus to minimize all risk in commercial lending has been coordinated by those who stand to gain within the countries themselves, primarily commercial lenders. Yet such policies threaten those who are the most vulnerable – poor woman. By giving responsibilities to the husband, woman will have no say in the dealings of their land, posing a serious threat of dispossession to those who are already marginalized, losing the very thing they depend on for their livelihoods.31 The concerns voiced by many have in some cases been taken up government, for instance the Tanzanian government tried to undertake a thorough overhaul of the country’s land laws through the Presidential Commission in order to help appease the grievances of rural constituents. Yet the recommendations advocated were ignored primarily because the report was not as anticipated by the government, what was expected was a report “...that would rationalise and legitimate the impending liberalization of land in line with the policy diktat of the international financial institutions.”32 The interesting aspect to note in all of the land policy agreements is the justification and ultimate ends for these policies HIV/AIDS has posed a major impediment in the way that land is inherited. Traditional systems of land inheritance have been circumvented as the stigma of the disease has led to the dispossession of land by in-laws of widows and orphans.33 Provisions for this

9 have been put in place, in Uganda for instance, which requires consent by spouses and children before family land can be transferred.34 Yet the pandemic has also been used as a way to hide the commoditization of communal land, particularly working against widows of AIDS victims.35 Due to the fact that the new land laws themselves exclude woman, yet the impetus to change from customary law was to guarantee rights to spouses.36 These particular issues reveal a marked irony in the implementation of new land policy frameworks. The main impetus is to guarantee protection for the most vulnerable groups, primarily being poor woman. Yet after examining specific land policies implemented within African contexts themselves, it seems to reveal the opposite. Land reform has been looked at as the contemporary answer to the problems of poverty for the African continent, as echoed in the words of Alan Budd, former chief economic advisor to the British Treasury declaring, “what Hernando De Soto has done is to solve the mystery of poverty.”37 Although the conceptualization of such frameworks were moulded on the basis of creating a new means for lifting the poorest of the poor out of poverty, empirical evidence has shown otherwise. By not taking into account the effects on woman, and overlooking existing customary tenure agreements, land policies have in many cases been detrimental to the livelihoods of individual Africans.38 Land policy has not been allowed to evolve in response to local dynamics, but has been created through external policy mechanisms. These policies have focused their attention on aggregate growth, rather then on the implications for local individuals. By not including all relevant stakeholders, mainly the recipients themselves, land reform has become contentious, and ironically has worked to marginalize those it purports to be the long-run beneficiary.

1

Stefan Andreasson, “Stand and Deliver: Private Property and the Politics of Global Dispossession,” Political Studies, 54 March 2006, http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=19500730 &site=ehost-live (27 November 2007). 2 Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006, http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6e7254fdd0a7d%40sessionmgr109 (1December 2007). 3 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 47 4 John Locke, “Second Treatise of Government,” Culture and Values, Vol. I, Lawrence S, Cunningham and John J. Reich, 6th ed, (Belmont, Calif.: Thomson Wadsworth, 2006), 170 5 Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006, http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6e7254fdd0a7d%40sessionmgr109 (1December 2007). 6 John Weaver “Great Land Rush and the Making of the Modern World, 1650-1900.” (Montreal: McGill-Queen's University Press, 2003), 50. 7 Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006, http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6e7254fdd0a7d%40sessionmgr109 (1December 2007). 8 Ibid 9 Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006, http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6e7254fdd0a7d%40sessionmgr109 (1December 2007). 10 Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 4. 11 Kristin Hallberg, “Improving Investment Climates: An Evaluation of World Bank Group Assistance,” (Herndon, VA, USA: World Bank Publications 2006), 70. 12 Ibid 13 World Bank, “Land Policies for Growth and Poverty Reduction,” (Washington, DC, USA: World Bank Publications, 2003), 9 14 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 58 15 Ibid, 15 16 Stefan Andreasson, “Stand and Deliver: Private Property and the Politics of Global Dispossession,” Political Studies, 54 March 2006, 17 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 54 18 Simeon Ilesanmi, “Leave No Poor Behind: Globalization and the Imperative of Socio-Economic and Development Rights from an African Perspective,” Journal of Religious Ethics, 32 April 2004, http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=9&hid=117&sid=743fb039-114b-4346-bf8faa46380af039%40sessionmgr104 19 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 67 20 Ibid, 89 21 Diana Hunt, “Some Outstanding Issues in the Debate on External Promotion of Land Privatization,” Development Policy Review, 23 March 2005 22 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 37 23 Ibid, 69 24 Diana Hunt, “Some Outstanding Issues in the Debate on External Promotion of Land Privatization,” Development Policy Review, 23 March 2005,

http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=16146123 &site=ehost-live (26 November 2007). 25 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 87 26 Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 12 27 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 88 28 Ibid 29 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 132 30 Ibid, 105 31 Ibid, 104 32 Economist, “On the Frontier of Finance,” Nov 15, 2007, http://www.economist.com/printedition/index.cfm?d=20071117 (25 Nov 2007). 33 Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 14 34 Ibid 35 Stefan Andreasson, “Stand and Deliver: Private Property and the Politics of Global Dispossession,” Political Studies, 54 March 2006, http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=19500730 &site=ehost-live (27 November 2007). 36 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 121 37 Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 103 38 Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed Books, 2006), 132

Bibliography

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