Source: The Conversation – Africa – By Marc Wegerif, Senior Lecturer, Development Studies, University of Pretoria
Land tenure is the relationship, defined in law and customs, that people as individuals or groups have with land. It involves a bundle of rights to land, such as the right to use, sell, or bequeath land. Secure tenure is crucial for people to have secure homes, for food production, and for the economy. For many it is also central to their identity and culture.
While there is broad agreement on the importance of effective governance of secure land tenure, the best way to achieve this is the subject of much debate. The core contestation is between commodifying land through individual rights and markets, versus protecting it as a social good through communal rights to prevent landlessness and inequality. An overlapping debate is between more customary or traditional systems and those based on statutory law and democratic principles.
Food systems, economic justice, and agrarian reform have been the focus of my scholarship over the last 20 years. Seeing both progress and the same old debates continue, my two co-researchers and I felt it a good moment to examine what has happened with land tenure governance and what we can learn from that.
Our research involved conducting a comprehensive review of 18 countries – 16 in Africa and two in Asia – between 2021 and 2023.
Our study found a significant shift towards the recognition of customary rights and the strengthening of women’s land rights. These are driven by a wave of new policies, legislation and programmes such as those in Sierra Leone, Ethiopia and Malawi.
Although progress has been made, the struggle over land – balancing market interests with social protection, individual rights with communal governance – remains highly contested. Learning from the good examples and seeing what still needs to be done is crucial for further debates and action on the issue of land rights and governance.
The findings
Our review involved extensive interviews with a range of actors from government, civil society and academia in each country and a review of policies, legislation and other documents.
Our study also came just over ten years after the adoption of the Framework and Guidelines on Land Policy in Africa and the Voluntary Guidelines on the Responsible Governance of Tenure.
The two are internationally agreed guidelines intended to assist national governments to improve their land policies and governance. We used them as benchmarks against which to review the land tenure governance arrangements in each country.
We found that the past two decades have seen a remarkable surge in land policy and legislative activity. Fifteen of the 18 countries studied have adopted new or substantially amended land policies or laws since 2000. Twelve have done so since 2012.
Central achievements of these reforms have been the strengthening of women’s land rights and improved legal recognition of customary and communal land tenure systems. This is seen in the adoption of policies and legislation that recognise customary land rights and prohibit gender discrimination.
This has led to the increased inclusion of community participation in land decision making procedures. There are also programmes that have been implemented to register customary land rights.
Some countries, such as Zambia, have set targets for the minimum amount of land that should go to women. Such interventions have improved the land rights of millions who have historically been vulnerable to dispossession.
These shifts, in particular recognising communal and customary land rights, represent a move away from the wholesale individualisation, privatisation and commoditisation of land.
The proponents of land privatisation, most notably the World Bank, argue that it unlocks access to capital and leads to the transfer of land to those who can use it most effectively.
Those arguing against it claim that it has not worked, particularly in Africa, and leads to greater land inequality and landlessness.
Instead, the 15 countries in this study that have adopted new policies and legislation in the last two decades are forging a middle path. They are seeking to secure traditional rights while unlocking development potential, such as by securing farmers’ rights and enabling investments. The formal registration of individual rights to customary land has been achieved cost-effectively in several contexts, without a full privatisation of land and without leading to widespread landlessness.
Crucially, and contrary to earlier fears, recent land registration efforts have often benefited women more than men in several settings, such as Rwanda and Ethiopia.
The success stories
Two standout examples illustrate the potential of well-crafted and implemented reforms.
In Sierra Leone, the passage of the Customary Land Rights Act and the National Land Commission Act in 2022 set new benchmarks for protecting community and women’s rights. These laws entrench the increasingly recognised requirement of “free, prior and informed consent” from affected communities and families before any changes to their land rights or use can proceed.
The law breaks new ground by explicitly stipulating that such consent must be given by both “adult male and female members of the affected community,” ensuring women’s voices are heard. Furthermore, the Customary Land Rights Act mandates that a minimum of 60% of both women and men in families must approve decisions concerning family land. This is a potentially powerful measure to protect the interests of all dependants in extended families.
In Ethiopia, a different kind of success story has unfolded through a massive, state-driven land certification programme. This has resulted in the registration of individual community land rights to over 25 million land parcels.
This was achieved at a remarkably low cost of just US$8.50 per title and provided to beneficiaries for free. The programme has had a positive gender impact with 23%-24% of certificates issued in the names of women alone (compared to 14%-15% to men) and a further 55% issued as joint titles to couples.
This demonstrates that large-scale, cost-effective land registration that strengthens women’s tenure security is achievable.
Examples of stalled reform
Our study also revealed numerous implementation gaps. Policies and laws may align with international voluntary guidelines principles on paper. But translation into tangible security for citizens is often weak.
Furthermore, several countries, such as Cameroon and Senegal, are hampered by a failure to adopt new legislation altogether and still operate with land laws that are over 50 years old.
South Africa serves as a stark example of stalled reform. Following the end of apartheid over three decades ago, there was a flurry of post-liberation land legislation. However, the country has failed to finalise new legislation to address tenure insecurity on communal land, which is home to approximately 20 million people. The 2004 Communal Land Rights Act was declared unconstitutional, and a subsequent 2017 draft bill has yet to be passed.
Consequently, land governance in these areas remains in a legal vacuum.
South Africa also continues to rely on an outdated, slow and expensive land registration system for private land. The country has failed to implement a modern, fit-for-purpose national land registry that could serve all citizens. This legislative and administrative inertia has left the country’s land reform programme perpetually underperforming and land distribution as unequal as ever.
The journey is far from complete
The overall trajectory of land tenure governance in the first decades of the 21st century is one of cautious optimism. The examples of Sierra Leone’s progressive laws and Ethiopia’s mass certification show what is possible with political will and innovative approaches.
However, the journey is far from complete. The challenges of implementation are immense, and countries like South Africa, Cameroon and Senegal highlight the critical need to modernise legal frameworks and land administration.
– African land policy reforms have been good for women and communities – but review of 18 countries shows major gaps
– https://theconversation.com/african-land-policy-reforms-have-been-good-for-women-and-communities-but-review-of-18-countries-shows-major-gaps-268318
