Statutory recognition of customary land rights in Africa: An investigation into best practices for law making and implementation

Recognizing and protecting customary land rights is a critical component of protecting and defending the land rights of the rural poor. This study is founded upon the notion that protecting and enforcing the land claims of rural Africans may be best done by passing laws that elevate existing customary land claims up into nations’ formal legal frameworks and make customary land rights equal in weight and validity to documented land claims. Through a close examination of the text and implementation of the land laws of Botswana, Mozambique and Tanzania, this publication investigates various over-arching issues related to statutory recognition of customary land rights, notably:

• How best to integrate statutory and customary legal systems so as to most effectively strengthen tenure security, foster national and community prosperity, and take steps to extend all of the protections, rights and responsibilities inherent in the national legal system to rural communities;
• How to balance what happens on the ground, organically, against what the state views as “useful” or “valuable” and wants to preserve, enforce or encourage from above;
• How to write a land law that merges the practices of the people with the objectives of the state and arrives at solutions that will simultaneously: be used, adopted and successfully implemented on the ground; advance state interests; advance community interests; and advance individual interests;
• The factors that impact a law’s long-term, effective and equitable implementation.

The study takes as its starting point that rather than lawmakers inventing theoretical new legal frameworks or borrowing legal models from Western nations, land tenure systems must be based in the lived realities of the people, as practiced daily on the ground.  It suggests that customary and statutory legal systems are not as divergent as may be thought, and identifies areas of overlap that may be useful starting points for creative integration of statutory and customary land law. The analysis of the case studies in reveals that to successfully harmonize statutory and customary land rights, a law must do seven equally-important things well within its text:

1. Flexibly allow for the full range of customs within a nation to be expressed and practiced while implementing restrictions that impose basic human rights standards on customary practices, protect against intra-community discrimination, and ensure alignment with the national constitution.
2. Create local land administration and management structures that: come out of – and look much like – existing local and customary land management structures; are easily established; are low cost both to the state and for users; are highly accessible; and leverage local individuals’ intimate knowledge of local conditions.
3. Establish administrative processes that are simple, clear, streamlined, local, and easy for rural communities to use to claim and defend their land rights.
4. Establish appropriate checks and balances between customary/local leadership and state officials, create new, supervisory roles for land administrators, and ensure direct democracy and downward accountability to the people.
5. Include accessible, pragmatic and appropriate mechanisms to safeguard against intra-community discrimination against women, widows and minority groups.
6. Establish good governance in land administration by: creating appropriate mechanisms to ensure the law’s enforcement; penalizing state officials who are contravening the law’s mandates; and setting up dispute resolution mechanisms that allow for appeal of community-level decisions.
7. Protect community land claims and create real tenure security while allowing for investment in rural areas, ensuring that all development will be sustainable, integrated, and beneficial for local communities.

The study concludes that for a law that harmonizes customary and statutory systems to be well and widely implemented, there must be political will to do so; devolvement of power over land and natural resources down to local levels and away from the state is unlikely to garner sufficient long-term political support of central and decentralized state officials. It is therefore imperative to establish new roles for the state and public officials on the one hand, while hindering their possibilities of subverting the law’s intent on the other hand. Safeguards and oversight mechanisms must be included to make sure that the systems are integrated in a way that promotes justice and provides for both upward and downward accountability for both state officials and customary leaders. Such integration must also ensure that should the rural poor need to protect or enforce their land claims, they can easily access and successfully navigate land administration systems. This document is available directly from the FAO divided into 3 PDF files, found here: http://www.fao.org/docrep/013/i1945e/i1945e01.pdf http://www.fao.org/docrep/013/i1945e/i1945e02.pdf http://www.fao.org/docrep/013/i1945e/i1945e03.pdf