Looking back to see forward: the legal niceties of land theft in land rushes

Abstract

This paper aims to make a modest contribution to an overdue need to locate the current land rush in its historical context, less as a new phenomenon than as a surge in the continuing capture of ordinary people's rights and assets by capital-led and class-creating social transformation. It aims to do so by looking back to earlier land rushes, and particularly to those which have bearing upon sub-Saharan Africa, the site of most large-scale involuntary land loss today. In particular, the paper focuses upon a central tool of land rushes, property law. The core argument made is that land rushes past and present have relied upon legal manipulations which deny that local indigenous (‘customary’) tenures deliver property rights, thereby legalizing the theft of the lands of the poor or subject peoples. Even prior to capitalist transformation this feudal-derived machination was an instrument of aligned class privilege and power, later elaborated to justify mass land and resource capture through colonialism. Now it is routinely embedded in the legal canons of elite-aligned agrarian governance as the means of retaining control over the land resources which rural communities presume are their own.

Keywords:

• Africa
• law
• land rushes of the past
• dispossession
• customary land tenure
• commons
• property

Notes

¹Privy Council, 1921. The issue had already come before the Supreme Court of the Colony of Southern Rhodesia in 1912–1914, not decided upon until 1919, at which point native title was not acknowledged as existing (Re Southern Rhodesia (1919) A.C. 211,233–4).

²Such provisions are clear in the land laws enacted for the German territory of Tanganyika, Ruanda and Burundi (1891) and Cameroon (1896); laws enacted throughout the 13 French possessions (such as in Senegal in 1900, 1904 and 1906); laws enacted in the Belgium Congo Free State (1885, 1886, 1906), and Anglophone laws such as enacted in British Kenya (1901, 1902, 1915). See Alden Wily (2011b) for details.

³Cases of this have been documented in Sierra Leone (Da Via 2011), Kenya (FIAN 2010), Southern Sudan (Deng 2011), Ethiopia (Fisseha 2011), Ghana (Schoenveld et al.2010) and Rwanda (Veldman and Lankhorst 2011).

Additional information

Notes on contributors

Liz Alden Wily

The author is very grateful to Ian Scoones for his helpful comments on the first draft of this paper and to four anonymous reviewers of a subsequent draft.