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The Commons and Customary Law in Modern Times: Rethinking the Orthodoxies

By: Liz Alden Wily

Customary domains are territories over which a given community possesses and exerts jurisdiction. Within customary domains, a diversity of tenure arrangements may be present: parcels may be owned by individuals, families, or particular groups within the community. Customary domains may also contain common properties: properties such as woodlands, pastures, or swamplands owned by all members of the community in undivided shares.

This draft for a presentation delivered at a 2005 UNDP conference on “Land Rights for African Development” emphasizes the urgent need to define and secure customary domains for communities in Africa. Furthermore, the author argues that for rural communities to effectively guard against dispossession and to obtain genuine benefits from their common properties, commons must be clearly defined and recognized as the private group-owned property of rural communities. The draft culminates in a practical model based upon the principles of local consultation, inclusivity, and community participation, describing essential steps whereby customary domains and commons can be effectively delimited and secured for communities. Community ownership of the process, including the creation of boundary committees and community land councils, is key in establishing secure tenure.

Keywords: commons, customary domain, registration, community land councils, practical guidelines.