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:
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:
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:
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