Abstract
Land registration and titling in Africa is often advocated as a pro-poor legal empowerment strategy. Advocates have put forth different visions of the substantive goals this is to achieve. Some see registration and titling as a way to protect smallholders’ rights of access to land. Others frame land registration as part of community-protection or ethno-justice agendas. Still others see legal empowerment in the market-enhancing commodification of property rights. This paper contrasts these different visions, showing that each entails tensions and trade-offs. The analysis helps explain why land law reforms aiming at legal empowerment may be controversial or divisive in African countries.
Acknowledgements
Earlier versions of these arguments appeared in Boone (Citation2007) and Boone (Citation2014) and I thank Rachel Gisselquist and UNU-WIDER for encouraging me to revisit and extend this work. A draft was presented at the TrustLand Workshop at Gulu University in Gulu, Uganda, on 5 January 2016. I acknowledge the support of the LSE International Inequalities Institute and LSE Suntory and Toyota International Centers for Economics and Related Disciplines (STICERD) for research support in 2015 and 2016 and the LSE CPAID project for support in 2017.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
2. The history of large-scale land expropriation by white settlers in eastern and southern Africa – especially in South Africa, Namibia, Zimbabwe, Mozambique, and Kenya – means that the highest rates of land titling are in these sub-regions. Rates of land titling are very low across most of the rest of the continent.
4. De facto forms of indirect rule prevailed across most of rural Africa during the colonial period (Boone, Citation2003, pp. 15–16), but of course not everywhere (as for example where statist land tenure regimes were imposed) (Boone, Citation2014).
5. On Kenya’s 1954 Swynnerton Plan, see Sorenson (Citation1967).
6. See Williams (Citation1981), as well as Amanor (Citation1999) and Boone (Citation2014). The World Bank was very much part of this discussion from 1960 onward. In an analysis of land policy in Tanzania, Askew, Owens, and Stein (Citation2010, p. 2) write that ‘[w]hile a major Bank policy stance on land reform was not fully established until 1975, earlier individual country economic reports noted complications arising from existing land institutions. For instance in Tanzania (then Tanganyika), the 1961 report on economic development identified existing land codes as a limiting factor on long-term economic development, yet it also acknowledged that the transition from traditional communal to formal individual title could result in a large class of landless peasants. The report notes that 80 per cent of land is under “native law and custom” that is not static or uniform.’ See Ng’ong’ola (Citation1982) for a partial exception: a frustrated case of World-Bank assisted experimentation with titling in central Malawi that started in 1967.
9. See Wily (Citation2003) for land law reform in Africa in the 1990s. As Kay (Citation2016, p. 511, citing Blomley, Citation2004, p. 614) explains, property is a central concept in neoliberal governance. ‘Neoliberalism is, in part, a language of property – a return to central axioms of eighteenth century liberalism which locates private property as the foundation for individual self-interest and optimal social good.’ Privatisation, enclosure, boundary drawing, new regulatory roll-outs, and roll-back of preexisting rules are ‘central tenets of neoliberal policy-making. [This involves] “framing and reconfiguring of what counts as property”’ (Kay, Citation2016, p. 511).
12. See Kydd, Dorward, and Morrison (Citation2004) on stabilising smallholder agriculture.
16. See Cotula and Mathieu (Citation2008) on the ‘formalisation agenda’.
17. Tanzania’s Certificates of Customary Right of Occupancy (CCROs) are an example. As Stein and Cunningham (Citation2015, p. 2) write, Tanzania’s 1999 Village Land Act fully recognised established user rights and placed them on an equal footing as statutory or granted rights. Under this law, elected Village Assemblies were empowered to manage village lands. In the period since 2004, Tanzania initiated two large-scale pilot programmes (one directly sponsored by the World Bank, the other designed and run in cooperation with De Soto’s Institute of Liberty and Democracy in Lima) to delimit the boundaries of village lands, and then to register, survey, and title individual holdings therein via the issuance of Certificates of Customary Rights of Occupancy, or CCROs. From 2011, it has been possible to obtain CCROs for group holdings. Askew et al. (Citation2010, pp. 16, 18) reported that by mid-2010, the World Bank programme had delivered 6800 titles to village offices, and that 17,500 CCROs had been delivered under the ILD-affiliated initiative. Villagers are encouraged to register spouses’ names on the land certificates.
18. In Uganda, after long debate, Museveni assented to the Land (Amendment) Act of 2004, which reinforced the (weak) land-transaction sanction powers of family members (wives and children) that existed in the market-promoting 1998 Land Act (Gay, Citation2016).
19. See Deininger, Ali, and Alemu (Citation2011). They define the non-alienability feature of Ethiopia’s programme as a departure from traditional approaches to land titling (2011, p. 312). They report that Ethiopia’s land registration programme was one of the largest in the world: between 2005 and 2010, Ethiopia registered more than 20 million parcels of rural land to some six million households (2011, p. 315). This followed a similar programme implemented in the Tigray region in 1998.
20. See Anthias (Citation2016) on Bolivian indigenous communities’ quest for territorial recognition as the basis of a range of rights, including land rights, and for political autonomy that exceeds autonomy over land. See also Engle (Citation2010); Brinks (Citation2016).
21. As for example in the case of the Ogiek in Kenya. See Di Matteo (Citation2017).
23. Some group-based land registration strategies are not founded on the principle of shoring up ‘natural’ or descent-based groups, and some are not linked to individualisation and titling. For example, Kenya’s Community Land Law of 2016 allows ‘registered groups’ who are not defined in terms of ethnicity or cultural distinctiveness to obtain corporate land titles for ‘community lands’. These are to be managed by elected individuals who act as the group’s agents, and who follow decision-making rules stipulated by law (formal meetings, quorum, voting). Tanzania and Mozambique register and certify village agricultural lands governed by secular councils of village members who are defined by residence, not ethnicity (Greco, Citation2016; Loure & Kekaita, Citation2017; Quan, Monteiro, & Mole, Citation2013; Shivji, Citation1999). In Côte d’Ivoire, Benin, and Burkina Faso, Plans Fonciers Ruraux (PFRs) have documented and demarcated customary village (customary or neocustomary) and lineage lands, building on the principle of neocustomary village-centred land management (but in some circumstances as a half-way house to individualisation and privatisation) (Boone, Citationforthcoming; Colin et al. Citation2009; Lavigne-Delville, Citation2009, p. 76–81; 2015). In Sierra Leone and Liberia, there are programmes to protect community lands by delimitation and documentation of village or community land perimeters (see Waldorf, Citation2016, p. 12).
24. These risks are especially acute where risk-mitigating institutions and policies are absent (insurance, price stabilisation schemes, and so forth).
25. Glaeser, Giacomo, Ponzetto, and Shleifer (Citation2016, p. 22) report that ‘in the WJP [World Justice Project] general survey [of 2015], respondents in developing countries see courts as among the least trusted institutions, and judges and magistrates among the most corrupt officials.’ On corruption in the legal profession itself, see Manji (Citation2012); Joireman (Citation2011); and Askew, Maganga, and Odgaard (Citation2013).
26. For example, land cultivated by a household may be opened to other community members for post-harvest grazing; a community’s reserve land may be subject to legitimate claims from multiple claimants; an extended family may have exclusive control over land, but individual family members may own crops (or trees, grazing rights, forest-collection rights, watering rights, and so forth) upon that land. See Downs and Reyna (Citation1988) and Bassett and Crummey (Citation1993).
27. See Atuahene (Citation2016) on expanding the legal definition of ‘takings’ to cover these sorts of losses.
28. Kjær (Citation2017) explained that in both northern Uganda and Buganda, many people feared that the 1998 Land Law would open the door to land-grabbing by government and politically-connected individuals, including politicians. See also Joireman (Citation2011). Do and Iyer (Citation2008) found in a study of rural Vietnam that politically-connected households were the most likely to have land titles.
29. Drawing on the work of Linda Engström (Citation2013), they describe a Kigoma, Tanzania case in which, as part of the formalisation process, a village’s land was surveyed by the regional commissioner. Nearly 7700 hectares were carved out of the village and put into the general land category, and thus available to investors. The ‘new’ border was moved away from the river which is now outside the village. A joint Belgian-Tanzanian company obtained a 99-year lease covering 4258 hectares and has called upon the police to evict unauthorised users from this space. The process has been contentious.
32. Some strategies to register community or group land rights are agnostic about the essential character of the ‘community’. See above, note 23, which describes group registration strategies that are not founded on the principle of shoring up ‘natural’ or descent-based groups.
33. Some analysts may also highlight the market-constraining and rent-generating aspects (as for example in restricting land ownership and land transactions to ethnic insiders) of these tenure systems.
34. Anthias’s (Citation2016) case studies of ‘The New Extraction’ in Bolivia suggest that realisation of indigenous autonomy via state-recognised communal control over natural resources may empower local leaders to act as brokers vis-à-vis outsiders, and that as brokers, they may be relatively unconstrained when it comes to leasing-out or otherwise contracting-out community assets. Mechanisms of downward accountability are not necessarily guaranteed.
35. See Boone et al. (Citationforthcoming) on the autochthony discourses around land in Kenya’s new counties.
37. Stein and Cunningham (Citation2015, p. 8) write that ‘[t]he idea that formalization is the best route to prevent land grabbing is a simple one which abstracts from the real power dynamics embedded in rural Africa.’
38. See Manji (Citation2006, p. 2012); and McAuslan (Citation2013). All three visions of land registration, as Platteau (Citation1996, p. 42) suggested, entail expansion and intensification of the role and presence of the state in land administration. State agents and agencies must not only supervise, enforce, and adjudicate contracts, and so forth, but also regulate land valuation, registration itself, demarcation, and presumably taxation.
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Funding
This work was supported by the UK ESRC grant to the LSE Centre for the Study of Public Authority in Africa (CPAID) [grant number ES/P008038/1].
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