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Customary law and land in Sierra Leone: From the mouth of the paramount chiefs

By Alison Rabe

Land ownership in Sierra Leone’s rural area is complicated. Rural land is owned by extended families that are attached to particular chiefdoms. All land is “vested” in the Chiefdom Council on behalf of community . The paramount chief (PC) is particularly important. He is leader of the chiefdom, head of the chiefdom council and “custodian of the land”. No significant decisions regarding land can be made without his or the council’s approval. In other words, even though landowners in communities have cultivated their land for centuries, ultimate determinations regarding their land are made at the behest of traditional authority.

SL-Land-Image-Daniel-SonkitaSierra Leone has a dualist legal system that recognizes both written statutes and custom. In the countryside, decisions on customary matters are often made by the paramount chief, whose word is considered final. By law, customary systems must comply with formal rules and PCs must consider principles of equity, natural justice, and good conscience in making their decisions. But it remains a challenge to ensure that paramount chiefs and their councils comply with statues.

With the recent influx of investors, customary law has created additional problems for local landowners and land users. In practice, paramount chiefs are the decision-makers in land disputes, and under statute they hold the land “in trust” for the people. In effect, this rule has allowed PCs to hold power of attorney on behalf of communities and sign lease agreements without properly consulting local land owners and users. As a result, traditional leaders hold a lot of power when it comes to potential land investment projects. Land owners and users, who customarily own and use the land and depend on it for their survival, are often excluded from negotiations around project details that affect their land and livelihoods.

Sierra Leone has a dualist legal system that recognizes both written statutes and custom.

Even statutory law, which contains some protection mechanisms regarding investments, does not outline how investors must interact with paramount chiefs or communities. As it is now, the easiest way for investors to acquire land is to go directly to the paramount chief. Working with each community – and its land owners and users – at the local level takes time and effort many companies do not wish to invest.

Namati is working directly with landowners and land users in communities affected by investment projects to enable them to reassert their rights in signed lease agreements covering their land. Leases often contain terms that do not benefit land owners and users, such as non-negotiated rent prices, the lack of provisions requiring investors to leave the land in tenantable conditions, and clauses allowing investors complete control over the commons. Namati works to renegotiate such terms.

Namati has already engaged many communities and is making efforts to involve paramount chiefs as well. Many of these paramount chiefs have recognized shortcomings in the lease agreements they signed and have acknowledged that they authorized projects without fully understanding the possible implications. Paramount chiefs are beginning to realize, it seems, that they must involve local land owners and users in decision-making around investments involving large swaths of community land.

Namati is working directly with landowners and land users in communities affected by investment projects to enable them to reassert their rights in signed lease agreements covering their land.

Namati has also been working at policy level, contributing to investment guidelines being drafted by the Sierra Leone government. The guidelines lay out how investors should work with the government at local and national levels, even in rural areas. As a result of Namati’s input, the most recent guidelines require that lease agreements be signed by all affected landowners and that investors draft detailed impacts and benefits agreements with each concerned community. Communities must also procure independent legal representation during the initial stages of investment to field negotiations with company attorneys.

These are concrete steps to ensure that investors in Sierra Leone directly engage with the people who own and use the land that will be affected. The measures also ensure that people’s land use decisions do not hinge exclusively upon the signatures of their traditional authorities.

How should Sierra Leone resolve the issue of customary law being vested in a few powerful actors? Do you think these draft guidelines will work in rural areas?

How do you think investment processes should be carried out between communities and investors? Should traditional authorities be involved?


ali rabe imageAlison has worked on land and human rights issues in Southeast Asia since 2009. From 2012-2013, she completed a Boren Fellowship in Cambodia working with indigenous peoples on communal land titling. She has also worked at the Lewis B. Puller Jr. Veterans Benefits Clinic, the United Nations Office of Drugs and Crime, and public defender offices at the state, federal, and international levels. As the 2013 summer law fellow in the Namati Sierra Leone office, Alison incorporated community legal empowerment principles into Sierra Leone’s new agribusiness and mining investment guidelines. She graduated summa cum laude from The College of Idaho in 2010, and will graduate with her J.D. from William & Mary Law School in December.

 


December 5, 2013 | Namati

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