Online discussion: Customary law and institutions - Protecting or undermining community land rights in Southern Africa? | Land Portal
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The vision of the Portal is to improve land governance to benefit those with the most insecure land rights and the greatest vulnerability to landlessness through information and knowledge sharing.

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This online discussion is exploring two main questions:

  • How can customary law and governance institutions be strengthened to ensure social inclusion, secure community access to land and effective management of natural resources?
  • How can these institutions best be protected against corrupt and authoritarian leadership and capture by local elites and global business partners?

During the two weeks of discussion we will critically examine the role of customary institutions in protecting community land rights. We will also collect recommendations on these issues to support the design and implementation of policy, development initiatives and research for better land governance in the SADC countries and other regions with similar challenges.

Check the full concept note and questions to be discussed in each week on the right side.

 

How can I participate in the debate?

The discussion is now open until 9th July! Follow these steps to participate & post your comments:

  1. Login or register to Land Portal
  2. Visit this page again (you can open this page in a separate tab/window in your browser and reload it once you are logged in)
  3. Click on 'Reply' or 'Add a comment' at the bottom of the page

 

The structure of the discussion

The online discussion will be open for two weeks, until 9th July.

In the first week (28 June - 4 July) we focused on experiences from specific countries - see the Discussion threads below.

In the second week (5 - 9 July) we are concentrating the debate in this main page, reflecting on common challenges and recommendations for Southern Africa and other regions of interest for participants.

 

Discussion threads

See the earlier posts on specific country threads:

   Angola & Mozambique    
 

   Eswatini, Lesotho & Botswana   


   Namibia & South Africa   

 

   DRC, Madagascar & Mauritius   
 

   Tanzania, Zambia, Zimbabwe & Malawi   
 

   Other country experiences   
 

Daily summaries

Every day the moderators will post summaries of the different country threads in the plenary space (this page, see at the bottom).  We will pull out key issues and questions for wider discussion. In this way we hope to be able to enable detailed localised discussions to emerge in the country clusters and to draw on these to enrich and shape the overall debate.

 

Comentarios

Welcome to this two week online discussion focusing on the role that customary law and institutions play in community land rights management and governance within the different countries which make up the Southern African Development Community (SADC).

The idea for Land Portal to convene this online discussion emerged through the research process to prepare our Country Portfolios for SADC countries (check https://landportal.org/countries). This work was done by Rick de Satgé, one of our moderators for this debate. It became clear that there are strongly diverging opinions about the role played by customary law and institutions in governing land, including its allocation and administration.

While in some cases customary institutions play an important role in avoiding conflict within and between communities, in others, they have enabled local elites and global capital to grab land and put the livelihoods of land-dependent families at risk. As the region currently sees a rapid growth in Covid infections, having land often becomes their only means of shelter and protection against the virus.

As you can see, this is a rather ambitious and important discussion. And you will have two very experienced moderators and researchers on this topic over the next two weeks: 

 

Rick is a researcher and communicator who works part time for the Land Portal as a Country Research & Engagement consultant, with a focus on Southern Africa. Rick was born in Zimbabwe and lives in Cape Town. He has over 40 years of experience in the land sector working in South Africa, Zimbabwe and Botswana. Rick is a former Director of Research and Collaborative Learning with Phuhlisani NPC, a South African non profit company focused on land reform, to which he remains affiliated as a Senior Research Associate. He currently curates www.knowledgebase.land providing news and links on land issues in South African and the region.

Siyabulela has a strong transdisciplinary background, with expertise that goes from land governance, land administration and land reform to land data ecosystems. In the course of his 30 year career in the land sector, he has made an enormous contribution to a range of research, policy assessment and formulation assignments for various government entities. Since 2010 he has been involved in intricate land-legal ground breaking, supporting Water Services Authorities in the Eastern Cape Province navigate around land tenure hurdles on their infrastructure projects. Siyabulela has a PhD (Science) in Geography and is a research associate of Rhodes University.

We look forward to seeing your comments on this controversial, yet essential debate for Southern Africa and other regions in the world, to explore the granularities of customary institutions and ways in which they can work for (and not against) vulnerable groups.

 

Greetings to everyone joining this discussion wherever you may be.

Over the next two weeks we seek to explore and better understand the  contribution of customary law and institutions to the protection of key community land and resource rights in both rural and urban settings across the different countries in the SADC region. In this we will be drawing on the many contributionsof those who responded to the Google form(link is external) to help create a baseline of information to draw on in the days ahead. This form is still open if you have not had a a chance to contribute so far.

Unfortunately the rapid escalation in Covid-19 case numbers across the region fuelled by the highly infectious Delta variant casts a deep shadow over us all. Our thoughts are with all those battling with the impacts of the pandemic. Here is  South Africa we havejust entered Level 4 lockdown. Other countries in the SADC region like Namibia are facing rapidly intensifying health emergencies.

 

In addition SADC  countries face an interlocking array of complex issues:

  • Widening inequality

  • Rapid climate change

  • High levels of unemployment

  • Unplanned urbanisation 

  • Land, mineral and natural resource grabs by elites and corporations 

  • Social conflict

  • Displacement and migration. 

In these increasingly volatile settings secure access to land for livelihoods and settlement are of fundamental importance to vulnerable households.

There is an enormous diversity within the SADC member countries.The role of customary law and institutions in land governance and administration in Southern Africa remains deeply contested and highly context specific. Post-colonial governments have taken widely differing approaches with respect to the recognition of customary law and associated institutions. The region contains a full spectrum of policy approaches and political systems ranging from a ban on the institutions of chieftainship and the marginalisation of customary law in Tanzania, through to Eswatini - an absolute monarchy with a system of local government, based on chiefdoms and district assemblies.Located between these two poles within SADC are a variety of systems and institutional arrangements which we seek to better understand and learn from.

As you will have seen  we have clustered countries together so as to share experiences and create opportunities for more in-depth locally specific discussion.

We have also set up a central plenary discussion space where we will reflect on  the issues and debates surfaced through the country clusters and collectively engage with the big crosscutting questions which will arise.

Today we start the discussion in the different country clusters with three linked questions:

  • How has the relationship between the state and traditional leaders changed over time in different SADC countries pre and post-independence?

  • What changes have there been in the legal status of customary law? 

  • What has been the thinking behind  these changes? 

This debate is really very pertinent and rich as far as it allows to provide a general picture and from each country of the region about land governance in the SADC region. 

Mozambique is one of the countries in the SADC region with a considerable socio-cultural diversity.  Although the current land law takes care to reflect this diversity and create space for local communities to make decisions about the fate of their land, its implementation has been problematic mainly for political, economic and other reasons.  Local communities are ignored when it comes to the decision to grant land to investors. Here the traditional leaders are captured and corrupted by political power in combination with economic power.

We are experimenting with using Deepl for those countries where there are French and Portuguese speakers. If you want to write in either of these languages feel free. If you want to provide a translation at the same time go to Deepl  and copy in your text before choosing the language in which you wish to translate it. Otherwise the moderators can do this on your behalf. There may be some mistakes so we will rely on bilingual people to help correct these.

Good day all

Thanks a lot Rick and Siyabu, and I am excited and honoured to have been invited to participate in this important topic.

I look forward to a rewarding experience, not the least, to the wonderful facilitation of the forum by Rick and Siyabu.

 

Regards

Many thanks for your kind words. We are looking forward to your contribution as you have important knowledge from both South  Africa and Botswana to share. We need critical and informed inputs to help build up a picture of the key trends and issues across the SADC region so we hope to see you active in these two discussion spaces.  

Thank you for introducing this timely topic. It is concerning that Customary land rights in Southern Africa are increasingly vulnerable. The current efforts to secure land rights through titling and registration and the courts seem to have limited impact. I would like to know if there are any promising initiatives in other parts of the world.

Hi Gaynor.

Thank you for joining the conversation where you have a great deal to contribute.  it would be great if you could contribute insights from your research to the South African and Zimbabwean clusters. As we get further into the discussion we will be very intersted to pursue this statement made in your coauthored  2019 paper. 

The challenge is that the characteristics of women’s land challenges have, in almost all cases, been homogenised—as though all women share the same problems and opportunities across the developing world. This “homogenisation” of women or the habit of “homogenizing” women has led to misplacement of policy priorities concerned with improving tenure security for women in SSA. 

Chigbu, U. E., G. Paradza and W. Dachaga (2019). "Differentiations in Women’s Land Tenure Experiences: Implications for Women’s Land Access and Tenure Security in Sub-Saharan Africa." Land 8(2): 22.

Absolutely  Rick. Women are normatively presented in comparison to men which may give the impression that women's experience in acessing land is identical. Our research illustrated how various factors like age, lifecycle stage, marital status, education, economic status and relationship to those in power differentiate women' experiences in negotiating acess to land. Women are not homegenous in the way they experience laws and policies and institutions. This is one of the reasons that explains limits of " one size fits all" policy interventions aimed at securing women's land rights 

Gaynor you refer primarily above to state policy making processes. I take it this differentiation extends across varied customary law, patrilineal and matrilineal inheritiance systems and social settings where women of different ages, young, old, unmarried, unmarried with children, married, widowed will be accorded different rights ans social status. So again a caution against a homogenising view. We need to be asking which women and in what context in ordewr to better understand how local systems work. This poses significant challenges  as to many outsiders these arrangements and the values and ways of knowing that underpin them will remain opaque.

Land Portal is addressing an extremely important subject. I have produced a FREE 115,000-word manual addressing this subject for Zambia entitled: Guardians of Eden Manual. It can be downloaded by participants in epub from Kobo, plus a free app. It is relevant for much of Africa and for Indigenous Peoples generally.

Thank you also for contributing to the Google form survey to profile Zambia ahead of this discussion. It would be great if you could distil the essence of your work in the  country cluster which includes Zambia.

So our discussion is off to a good start with a number of interesting and provocative posts made on the first day. We have started out by trying to explore something of the colonial and postcolonial history of the different countries in the SADC region and the impact of colonial rule on customary law and institutions of traditional governance. In this we are trying to identify some of the forces which have shaped the evolution of customary law, the current form and relative influence of ‘traditional’ leadership in the different country contexts.

Angola and Mozambique

In this country cluster Allan Cain has provided insights into the massive disruption caused by the arrival of the Portuguese in all aspects of traditional society in Angola including widescale appropriation and alienation of land by Portuguese settlers and land speculators. He notes that the first post-Independence Land Law passed in 1992 did not give formal legal recognition to customary rights in land. Nor did it recognise the rights of those in urban informal settlements, or those who had reclaimed estates abandoned by the Portuguese.

Participants from Mozambique have yet to join the discussion online but had been very active in completing the Google form. A PDF with a summary of their responses has been posted on the country page. We will be picking up on their analysis in the days ahead.

Eswatini, Lesotho and Botswana

Sean Johnson has provided an important background piece comparing and contrasting customary law and institutions in Lesotho and Eswatini. He notes that “in both Kingdoms, chiefs are the 'pivot' on which both Liswati and Basotho define their collective need for land and how rural communities govern, manage, and administer land use, and the principal task of the chief, working with a council of elders, is to allocate land to families who are, or will become, part of the community and chiefdom.” He notes that in both kingdoms “traditional authority and customary law, land tenure, and governance are rooted in political struggles over limited land resources”.  He concludes with an important question:

Which is the right approach? Improving traditional authority or substituting the chieftaincy with ministerial authority? Both? After all, context is key. The conclusion is consequent on the outcomes and impact: on less land disputes, increased tenure security, good governance, reduced inequality, protection for vulnerable groups, and improved rural livelihood.

This will be a question we will need to keep in mind throughout this discussion. While the answers will vary the outcomes and impact seem centrally relevant.

In a follow up to his piece there are questions about the impacts of the codification of customary law and its relationship with ‘living customary law’ leading to bigger questions about how to make legal pluralism actually work in practice.

Namibia and South Africa

Romy Nghitevelekwa who is the author of a recently published book Securing Land Tenure: Communal Land Reform in Namibia has focused on how the functions of traditional authorities in Namibia are regulated by the Traditional Authorities Act and the Communal Land Reform Act. It seems that traditional authorities in Namibia have retained significant powers, allocating land, mediating disputes and levying fines for a range of offences. She mentions the role of Communal; Land Boards so it will be interesting to explore the relationship between the functions and composition of the Land Boards and the role of traditional leaders

In this section we republished an article from the Conversation by Ben Cousins which focuses on a recent legal case in South Africa ruling on the rights of people living on customary land in the Province of KwaZulu-Natal. He notes that in communal areas in this province, most daily land administration tasks, such as approving applications for allocations of land, are carried out by traditional leaders (amakhosi) and village-based headmen (izinduna). Customary land rights derive from locally accepted membership of rural communities, mostly through descent but also of newcomers. They are protected by the Interim Protection of Informal Land Rights Act 1996.

The judgment sets out how land is allotted to a family head as residential and arable plots and access to communal pasture; no financial payments are involved, and land rights are inheritable. Land becomes the property of the family, and nothing may be done with such land without the involvement and consent of the owner. The judgement notes that

Land rights are closely tied to social and cultural relationships, and tenure security is derived in large part from locally legitimate landholding.

Ben Cousins concludes that “the challenge for tenure reform policy is to express these principles in law in a way that provides certainty, and ensures the protection of land rights holders. This will lay a firm foundation for administrative systems focused on both support for rights holders (for example, in resolving disputes over land), and to facilitate development planning and service provision”.

Siyabu Manona has highlighted how there is currently no coherence in the different parts of the state concerning customary law and customary land rights.

Tanzania, Zambia, Zimbabwe and Malawi

Participants from Zambia are prominent on this page at present with Matt Sommerville highlighting the evolving role for customary law and the need for building more transparency and documentation within the customary structure. Betty Okero focuses on the place of women’s voices and visibility in customary structures – an issue that we will explore in more detail as the discussion unfolds.

Ian Manning provides historical background on how Zambia fell under colonial control, the establishment of ‘native reserves’ and the formalisation of ‘tribes’ and the appointment of chiefs by statutory appointment. He shines a light on the extraordinary level of detail which went into the colonial project of ‘native administration’.

So many issues are finding their way onto the table. One thing that merges strongly on Day One is how context is key and the risks associated with attempts to homogenise customary law and institutions, while at the same time finding ways to make institutions transparent and downwardly accountable.

While the discussion continued here, in South Africa former president Jacob Zuma was sentenced jail by the Constitutional Court.  This hopefully sends a signal that the unfettered corruption and capture nurtured during the past years and which has hollowed out the South African state and undermined the land and civil rights of many rural citizens will be brought back under control. At the same time news reports from Eswatini highlight mounting social unrest and dissatisfaction against the rule of King Mswati.

Angola and Mozambique

In this country cluster Simon Norfolk has contributed a rich piece which tracks the changing position of the state vis a vis customary structures and traditional authorities. In 1975 the Frelimo government nationalised all land and abolished all customary structures which fuelled conflict and civil war. By 1989 with the collapse of the Soviet bloc following the symbolic fall of the Berlin Wall socialist policies were replaced with neo-liberal turn. However, this did not affect Mozambique’s stance on customary authorities which remained marginalised. It took ten years for the state to recognise the de facto role of customary systems in local land administration, but for a long time it resisted conferring meaningful powers to local structures. Simon describes Frelimo’s schizophrenic journey alternating between centralisation and decentralisation. He notes that despite all the twists and turns customary authorities have remained resilient and positioned “to continue to provide a local, accessible, affordable land administration service, solving conflicts and witnessing transactions”.

At the same time the complex situation which has developed over the past few years in Cabo Delgado shines a light on the consequences of large scale investments and accompanying local land alienation and forced relocations. It raises the question of how land gets allocated for investment and who are the winners and losers as a consequence of these deals? Howe are local people and customary structures involved in these processes and their situation properly addressed?

Eswatini, Lesotho and Botswana

On this page there has been some discussion about the pros and cons of the codification of customary law. The status of customary law and its place in a pluralistic legal system is an important topic for discussion. Writing elsewhere about this relationship Laurence Juma has noted:

African customary law scholars have been preoccupied with finding points of convergence between two divergent paradigms instead of seeking to develop African customary law as a distinct legal tradition that espouses rules and supports institutions of its own kind.

 This raises important questions as the discussion unfolds:

  • How is customary law best developed as a distinct legal tradition?
  • What examples are there of processes to attempt this and with what result?

Ian Manning has picked up on analysis by Liz Alden Wily focusing on Botswana where Tribal Land allocation has been centralised under the land Boards. This has undermined opportunities for villages to formalize their traditional rights to specific rangelands and enabled individuals to access these lands under common law leases.

Again important questions arise:

  • Do institutions like Land Boards protect community land rights or create spaces where powerful people can appropriate resources?
  • Are people better protected by customary systems and locally developed and sanctioned access and exclusion rules grounded in customary law and practice?

Namibia and South Africa

In the run up to this discussion more than 50 people submitted responses to our Google form seeking to profile the status of customary law and institutions in each of the SADC countries. The form is still open for submissions. One of the contributors was Wolfgang Werner, a leading Namibian researcher. We published a narrative based on his form submission yesterday which provides a comprehensive picture of the Namibian journey. This is a highly recommended read.

In his piece Wolfgang notes that:

Despite the central role the traditional leaders play in the administration of customary land rights, the current legislation does not provide for improved accountability and transparency downward. Communal Land Boards have been introduced to ensure that land allocations and cancellations are done according to the law, i.e. introducing accountability towards the state. But traditional leaders are not obliged by law to consult members of their community on major land alienation decisions such as for large-scale irrigation projects or oil exploration.

One thing that stands out from this very helpful overview of the situation in Namibia is the lack of restrictions on the powers of traditional leaders to alienate land for investment. Such investment may create profit and jobs for a few but dispossess and removes people whose livelihoods depend on the land. This is a powerful theme that is starting to emerge in different country clusters.

In South Africa the Land and Accountability Research Centre and other civil society groupings have argued that clause 24 of the Traditional and Khoisan Leadership Act (TKLA) has empowered traditional councils to enter into agreements with external entities such as mining companies and did not take into account the need to obtain consent from land rights holders.  The objections of land rights activists and judgments in court cases finding that community consent was required to approve development on their land were ignored by the legislators and Section 24 stands.

In this instance it seems that the policy direction of the state is specifically delegating authority to fast track mining deals on communal land to the benefit of elites.

The issue raised by Wolfgang illuminates one of the central questions underpinning our discussion:

  • How can these institutions best be protected against corrupt and authoritarian leadership and capture by local elites and global business partners?

Tanzania, Zambia, Zimbabwe and Malawi

Matt Sommerville provides a caution against elevating customary law as a magic bullet to prevent elite capture. His post has relevance for the discussion as a whole and address the second core question framing this discussion

  • How can customary law and governance institutions be strengthened to ensure social inclusion, secure community access to land and effective management of natural resources?

Matt observes that:

I don't think we should expect that customary law will involve less elite capture than the state system in any country / context. While I think that some "codification" / system strengthening and formalized structures can help reduce some of the ambiguities and discretionary decisions that lead to elite capture. Customary systems have the benefit of being able to evolve extremely fast and I believe there is an appetite for bridging the customary and statutory systems, both from a legal perspective and from a socio-cultural perspective as well. There are the areas where there may be tensions for example in the application of justice,  inheritance, fee structures, etc., but these are places where dialogue, written rules,  can help to navigate what is an acceptable norm and how it interacts with the statutory law.   

Also on these pages Ian Manning poses a related question:

The question is: how to re-capture the spiritual kinship power of old and infuse it with true democracy. I believe this is possible if customary land is held sacrosanct, if the chiefs, headmen and spiritual guardians are democratically assisted by Citizens’ Assemblies, and manifestos produced that affirm the new kinship.

So the discussion advances but is clearly in need of wider participation to realise its potential.

Day 3

The high point from day three has been the closely researched think piece published by Dr Phillan Zamchiya on Zimbabwe – State politics and customary power of chiefs. Similar to Simon Norfolk’s earlier piece reflecting on Mozambique, Phillan unpacks the complex history underpinning the changing role and influence of Chiefs in Zimbabwean society. In both colonial and postcolonial settings, the state has set out to influence and manipulate chiefs and customary institutions in the service of very different political agendas. When Zimbabwe obtained independence in 1980 after fighting a bitter liberation war, many, though not all chiefs and customary institutions had been discredited, perceived to have been co-opted by the white Rhodesian regime. His post tracks how for almost two decades after independence chiefs were politically sidelined, and their functions were taken over by village  and ward development committees. However, with rising resistance to the ruling party in Zimbabwe, politicians decided to restore the powers of chiefs and headmen, who now ‘returned’ to the chair of the village and ward committees respectively. In more recent years there has been overt deployment of patronage to win the political support of chiefs who “were subordinated to a partisan state”.

In the new Zimbabwean Constitution passed in 2013, the powers of Chiefs were explicitly recognised. They have jurisdiction and control of communal land and powers to allocate residential and farming land. However, these powers are not unfettered, as land allocations are required to be approved by the Rural District Council and allocations must also be consistent with norms of customary law.

Phillan concludes that:

Any policy efforts to democratise Chieftaincy, preserve its authentic customary role of representation or gradually modify it will need to face the reality that it is shaped by the developmental visions of the State, the political interests of the ruling elites and contested versions of customary practices.

This supports earlier contributions in this conversation which highlight the overwhelming importance of context and the dangers in generalising about customary institutions which have been shaped in very different ways by the diverse developmental visions of SADC member states.

On the Namibia South Africa page Charl-Thom Bayer has highlighted that although traditional authorities are not required to consult with the community in decisions to alienate land for investment, their powers to independently approve such alienation are tightly constrained as approval from both the Land Board and the Minister are required before such transactions can be made. From a community land rights perspective questions must still be asked about the adequacy of this approval process and the extent to which it safeguards the majority interest.

Days 4&5

Protests against King Mswati III in Eswatini have meant that people participating/monitoring in the discussion from there have been cut off.

Thanks for your email. 

However, we are currently experience network problem. 

Our government has cut it off due to the political unrest situation in the Kingdom of Eswatini area. 

In the background to the discussion people are continuing to respond to our pre discussion survey examining the roles and legal status of customary law and governance institutions in the various SADC countries. We have been collating and amalgamating these responses as resources for an informed discussion.

So far more than 50 people have completed this survey with the majority of the responses coming from:

We have also had responses from:

In our Mozambique and Angola thread Lasse Krantz joined the discussion to examine the different powers and roles of chiefs or ‘regulos’ when it comes to administration and governance of land and how they articulate with government policy of formalising communities as collective landholding units.

In the Namibian and South African country threads different perspectives have emerged on whether traditional leaders are required to obtain informed consent of communities before divesting any community owned land for investment purposes. Charl Thom Bayer seems to differ with Wolfgang Werner concerning their obligations in this regard. Charl-Thom focuses on how the requirements to consult so easily ignored or set aside enabling elites to circumvent or break the law with minimal consequences. He asked whether the alienation of customary land should be regarded as equivalent to a process of expropriation which involves much stricter requirements with regards to valuation and compensation. In a context characterised by mounting pressure on natural resources and the search for lucrative land-based investment these are critical questions. Wolfgang Werner in his responses highlighted the uncertain relationship between customary and statutory law. He notes that although the legislation provides “traditional leaders with considerable powers in the administration of customary land rights, it does not provide for appropriate measures to enforce their decisions”. This suggests that there is a long way to go before systems of legal pluralism which recognise both statutory and customary law find ways to actually do this in practice. In the Namibian example there is a legal pyramid with statutory law at the apex.

On the DRC, Madagascar and Mauritius page to Teresa Connor has  posted a profile of Madagascar and the role of customary law and institutions in land allocation and governance. This complements the earlier contribution by Faly Ranaivoson. On the same page in response to the second question focusing on the main changes in how land is accessed and managed under customary tenure within SADC countries Ian Manning describes changing approaches to the management of forest resources in the DRC, providing a critique of the development framework known as integrated landscape management and casting light on a 2014 decree which enables a Forestry Law passed in 2002 to create a legal framework for community owned and managed forest areas in which communities are able to apply for customary ownership rights on forest areas not exceeding 50,000 ha.

Ian has also been very active on the pages focusing on Tanzania, Zambia, Zimbabwe and Malawi. Tanzania is the one country among the SADC member states where traditional leadership was banned in the 1960s and has never been reinstated. Ian provides a detailed post reporting on the findings of a 2015 Parliamentary Select Committee report in Tanzania which found that:

  • Tanzania has no comprehensive mechanism to deal with land.
  • There weas weak law enforcement, contradictory legal regimes and ineffective and incompetent leaders which were the main factors driving land conflicts.
  • Only 1200 villagers out of more than 10,000 had been surveyed, and only have a handful of these had land use plans.

Ian highlights how in terms of the 1999 Land Act in Tanzania  certificates of customary right of occupancy were issued on 162 000 hectares of land to the pastoralist Maasai, Barbaig and Hadzabe. He highlights how subsequently the processes of “neoliberal enforced development involving land evictions” had highlighted the precarious nature of pastoralist  land rights in the face of 'fortress conservation' programmes in the Ngorongoro conservation area.

Where to next?

While the country pages have provided a means to focus on particular local issues there is also a risk that they can fragment the discussion. For the second week of discussion starting on Monday we plan to bring all the participants back to a single plenary space. The country pages will remain open over the weekend before becoming ‘read only’ first thing on Monday morning.

All online conversation in Week two will be recorded on this page.

Next week we plan to look at three big questions:

  • How is living customary law adapting to  protect women’s land rights?
  • What good practices exist in linking state and customary institutions for improved land governance?
  • If SADC was to develop a policy on land governance what should be the role of customary law and traditional leaders?

ALLAN CAIN
Development Workshop Angola

Statutory vs Customary Land Rights
Angola is a post-war country, with weak land tenure legislation and limited local government management capacity. More than 62 percent of the population live in urban and peri-urban areas and are increasing and putting pressure on land and services. Much of the population in these areas lives in informal settlements with insecure land tenure under the threat of forced evictions. Land conflict is an issue affecting urban, rural and peri-urban areas. Poor communities affected by the expansion of cities and towns are particularly vulnerable. Of these, women are the most vulnerable. Access to land is a matter of survival, for those who’s only income and accumulated assets are drawn from their land. More than half of families depend on informal sector activities to sustain themselves. Securing rights to land and housing assets are important to livelihoods of women headed households by permitting access to financing that they require to grow their enterprises as well as for incrementally upgrading their housing.

The post-socialist inheritance has left the State as the formal owner of all land. In practice however there is an active informal land market, large scale-land grabs by urban elites, and increasing conflicts affecting communities, small holders and families, particularly those headed by women. While the existing land law recognizes customary land use (residential, traditional agriculture and access to water) customary traditions are practiced in the various regions and cultures of the country, women’s rights of ownership and inheritance are weakly protected and are often unrecognised.

The formal statutory systems governing land rights and transactions in Angola are more favourable to women than in many African countries, but they are not yet fully realized and implemented in practice. As it emerged from almost 30 years of civil war, Angola enacted legislation that articulates principles of non-discrimination and gender equity. A progressive family law proactively provides for the rights of women in common law marriages and the inheritance rights of daughters. However, despite the mandates of the formal law, customary laws and traditional practices prevail. Those customary laws and practices mostly favour men, and men dominate Angola’s political, economic, and social spheres. the majority of Angolan women remain trapped with a lack of assets, illiteracy, limited economic opportunities, and the need to care for children and relatives. Land rights provide a critical asset to all women regardless of their circumstances but most particularly those with the fewest options. The Government of Angola’s current land and decentralization reforms provide an opportunity to design a strategy for protecting and improving women’s rights to land and livelihoods potential.

Despite constitutional provisions, all citizens are not equal in practice before the law, due to inadequate information, limited resources, and weak local administrative systems. Traditional authorities, such as local chiefs (sobas) are often the only administrators, mediators, and adjudicators of land rights that women will ever encounter. Less than one percent of the traditional chiefs are women. These individuals and local institutions of governance and dispute resolution generally apply customary law and local practice to guide decisions regarding land rights. Under traditional succession practices, Angolan women generally do not have land access equal to men‘s, as family land passes to sons and male relatives of the deceased husband. Women generally move to her husband’s house upon marriage and often live on and cultivate land owned by the husband‘s family or granted by the family or soba (traditional authority) to the husband. If the women are subsequently widowed, abandoned, or divorced, the former husband or relatives of the husband may force the women from the husband‘s land and home.

The inheritance practices upon which customary law in Angola are based are often discriminatory towards women. However, women are responsible for generating income, from informal trading or cultivation providing for household food security, and raising children and caring for the ill and elderly. The proportion of women heads of household continues to grow. 34.5% of households and 46% of per-urban slum households are headed by women . They also form the majority of those families living in extreme poverty. The problem of poverty within communities is also a result of inability to develop alternative ways to generate income. More than half of families depend on informal sector activities to sustain themselves. Assisting women to explore alternative and improved income generating opportunities that may contribute diversify their income sources, providing them with knowledge to access financial services, as well as facilitating their access to loans for investing in their small businesses, will contribute to improve their abilities to increase their possibilities to reach economical independence for themselves and for their families. Land tenure security is important for securing credit for poor families and women-headed households.

In the central plateau of Angola, the implementation of national policies respecting women’s rights remains incomplete (specifically for small holdings and peri-urban occupations). The practice of the existing customary system are still widely observed specifically, territories are administered under the leadership of traditional leaders, the “Sobas” (at Ombala level, a kind of a traditional district) and of the “Seculos” (at community level).

Past land reform programmes, together with the break-up of communal land holdings, have led to the transfer of exclusive land rights to males as heads of households. This ignores both the existence of female-headed households and the rights of married women to a joint share. However women, living in the customary law system, are often unaware of their statutory rights. Poor access to information also contributes to the lack of knowledge by citizens of their rights. By providing adequate and better information to women about their rights and access to land, as well as providing knowledge on land rights to the communities where they are included, will result in an increased awareness among women of their right to equally access and control land and housing.

Land Conflicts
Angola’s four decades of armed conflict were characterized by land expropriation, forced removals, resettlement, and the massive internal displacement of rural and urban populations. Prior to independence Portuguese colonial settlers had appropriated over 40% of registered land and denied African occupation of much of the remaining forested and reserve land. During the civil war after independence in 1975, warring parties used forced removals of populations from their lands as tools of war (Cain 2012 p.173). Since the end of the war in 2002, the reintegration of politically divided populations and ex-combatants—was linked to access to land that became a primary factor in social reconstruction. However post-war land legislation did not provide the opportunity for Angolan peasants and communities to register their properties or gain restitution for their lands that had been expropriated during the colonial settlers’ landgrab. The government distributed the equivalent of 50 percent of the land held by commercial farmers in colonial times to a small number of mainly urban-based absentee owners, who paid insignificant prices for secure tenure rights in order to eventually exploit these lands commercially. As happened in colonial times, the modern commercial sector was allocated an excess of underused land, which was set aside by the new owners for possible future use or speculation. Local peasant farmers, on the other hand, were treated by the Angolan state much like they had been treated under the colonial regime (Pacheco 2002). They were left with small, often scattered parcels of land divided between tiny irrigated garden plots and less fertile, seasonally used lavras (plowed plots) for staple crops. Post-war legislation made no provision for existing or previous possession or occupants’ rights (usucapiao) by which property rights may be acquired through continued use over time. Therefore the main driving force for the rapid return of rural IDPs to their areas of origin was their need to reclaim family lands and the fear of finding it staked out by an intruder or usurper often holding title deeds issued by a government official. Resettlement of IDPs, excombatants, and returning refugees produced innumerable local conflicts over land allocation, often resulting in clashing interests between the returnees and those who had stayed behind in their areas of origin. The role of traditional authority in land management had been eroded through the years of colonial rule and civil war. However, the return and resettlement of almost 3 million people to their rural areas of origin provided a renewed role for traditional leaders in dealing with local land conflicts and providing testimony regarding families’ historical land claims.
Disagreements over land became more frequent as the scramble for land between powerful commercial interests and peasants threatened evictions of families who had fled the conflict-ravaged countryside to make homes on land without sufficient legal title. In rural communities, fertile agricultural land with relatively easy access to urban markets was in high demand. These sites frequently became the focus of disputes between residents and returning IDPs as well as more powerful commercial interests.

A recent diagnostic study carried out in Huambo province in Angola’s Central Highlands revealed that 75% of the peasant small holders said that they do not see any benefit from the commercial farms near the communities. Only 1% of respondents mentioned any benefit from commercial exchanges between the community and the commercial farmers and no-one reported that the proximity of commercial farms brought the community any improvement in access to services like water and electricity. Approximately 10% of small-holder respondents said that because many farms were acquired through forced expropriation of community lands they felt threatened by the presence of commercial farmers in their neighborhoods and that with the passage of time they feared conflicts which could lead to the further expropriation of local community’s lands.

Land conflict is an issue affecting urban, rural and peri-urban areas. In urban areas the poor risked being uprooted from their homes because their sprawling musseques frequently occupied ideal locations for elite housing developments, offices, and roads. Poor communities affected by the expansion of cities and towns are particularly vulnerable. Of these, women, elderly and people living with disabilities are the most vulnerable. Access to land is a matter of survival, for those who’s only income and accumulated assets are drawn from their land.

Advocacy and Public Policy Reform
Angola is currently undertaking major governance reforms to empower municipalities with elected local councils. A key to municipalisation will entail decentralising the management of land. It will be necessary to build the capacity of local administrations and local communities to strengthen family land tenure and protect the rights women. If the poor majority are to be the primary beneficiaries of land tenure reform, the design of tools for managing land rights must take this into account. Poorer groups will have more effective access to such procedures where they receive clear information about how the system is meant to operate, and where the local government institutions responsible are located close by, working in local languages using tools of mapping and recording, including accepting oral testimonies as evidence to support claims. Effective and responsive judicial and land administration systems which are accessible to poor people and vulnerable groups are therefore crucial components of successful, pro-poor land policy reform. Development Workshop is working at the public policy level with the Government’s National Land Commission developing a land policy reform that aims to address contradictions between formal, informal and customary tenure, which have lead to conflicts and inefficiencies. Women status in traditional rules is one area of contradiction that needs to be addressed.

Women have a lower level of knowledge about their land rights compared to men with the exception of the 15-17 age group. The recent study in Huambo province (Development Workshop 2018) revealed that of the men interviewed aged 18-25, 20% said they were aware of the existence of the land law, and only 15% of women respondents claimed to have knowledge about the law. The percentage difference between men and women over the age of 36 was 20% (see Figure 1).

Current Angolan municipalisation reforms present a unique opportunity to affect local practice on how community and individual land-holder tenure is administered and protected. The Ministry for Territorial Administration and the Ministry of Planning and Housing is developing a set of land-management and mapping tools for the use by local municipal administrations. The tools employ the principal of “social domain tenure” (STDM) promoted by the UN’s Global Land Tools Network GLTN, Participatory Inclusive Land Readjustment (PILaR) and rapid gender tenure assessments.

The protection of gender rights should be rolled out in the new municipal government reforms to be implemented across Angola. These reforms involve the election of municipal councils Autarquias. The raising of public awareness about the rights of women to equal access to assets such as land, housing and means of livelihoods will ensure that these issues are protected at the local government level.

Advocacy work is required by civil society organizations to combat gender inequality, to promote the status of women with a focus on cultural change particularly in communities where customary land traditions are still strong. Raising the awareness on the existing legal framework and rights of access to the land, housing and livelihoods, particularly for women, is a way to provide them with the tools to protect themselves against unfavourable rules set by customary practice and against land-grabs by urban elites. Women are too often discriminated against in terms of access and land tenure, although they are the ones who are mostly linked to the tasks of cultivating the land. Land conflicts are most often mediated by traditional leaders (see Figure 2) rather than government authorities who are more knowledgeable about legal rights. The encroachment by commercial real-estate developers and expropriation for plantation farming and mono-cropping limit further their access to land. Providing them with the information on their statutory land rights can contribute to safeguarding their tenure.

A participative framework for planning the use of land needs to be promoted, with the purpose to accommodate the diverse interests of different groups using the land, thereby preventing potential conflicts. Small-holder and family agricultural production still ensures food security for most communities and in the country as a whole. The political buy-in of municipal authorities and the involvement of local community organizations and farmers associations, will be key. By raising the general awareness about the civic rights of women in the community, and the importance of protecting them for general development the local decision makers need to be influenced to embrace more inclusive customary rules, free of gender discriminatory principles.

Angola is undertaking a major devolution of power and decision-making to municipalities . Civil society has advocated for strong participatory governance reforms. The adoption of participatory gender-sensitive land management tools can have a strong platform for implementation. The capacity of the structures in charge of implementing legislation, land management and arbitration of conflicts needs to be reinforced. Land use planning is currently an activity that lacks coordination among the different institutions at national, provincial, and local level, without clear limits of intervention among them. There is also limitation in terms of skilled human resources capable to provide technically adequate rules for this activity. As a result land grabbing and occupation from powerful groups result often in misappropriation of community land, affecting vulnerable people, among them women. The new elected municipal councils will be required to deal with conflicts resulting from land use and property and find consensual solutions.

Co-production with communities and local government
Co-production of knowledge on land tenure involving participation of communities and local government will require collaboration between municipal administrations and local community associations who are being trained in the use of participatory mapping tools (STDM). Data collected and the land tenure mapping produced is co-owned by the Municipalities and the community associations who engage in its production. The participatory diagnosis will be carried out after the training of local administrations and civil society. “Data ownership” means: the authority to allow or deny access to the data, and the responsibility for the data’s accuracy, integrity, and timeliness. The “cadastre” produced provides evidence of legitimate and verifiable land occupation that significantly improves legal tenure.

Women often lack knowledge of their legal rights, including their land rights, marital property rights, and inheritance rights. Similarly local authorities often do not have clear knowledge of statutory rights and may have a weak understanding of the situation related to land issues in their areas of jurisdiction. There is a general lack knowledge of the land law, regulations, and procedures for implementing the laws, including the formalization of land rights and granting of concessions. The strategy to support women’s rights to land should be linked with providing training on the laws impacting land rights (both formal and customary) and do institutional capacity building for the new municipal administrations. It is hoped that women’s participation in elected decision-making bodies will support efforts to strengthen women’s rights.

Land use planning and management is better addressed when there is the involvement of the different institutions in a concerted manner. Innovative co-participation engaging local government and traditional / customary leaders, the private sector, local associative groups, communities, will result in a participative way to approach and find solutions to the existing problems. Together with seeking experiences and lessons learned and shared at regional level or in other countries, will contribute to increase capacity of local networks to engage in and benefit from global and regional networks and knowledge sharing that supports land opportunities for rural women and men.

Recommendations:
There is a need for the inclusion of a co-ownership clause into Angolan the Land Law. Co-ownership of land between spouses and/or family members is an important principal of land reform. (South Africa and Tanzania that have enacted legislation requiring land co-ownership by married couples)

Development Workshop’s research provides evidence of the proportion of women-headed households in peri-urban areas (over 46% in slum areas of Luanda). Women’s land rights be reinforced and for land legislation to be brought into compliance with Angolan law. The equal rights of men and women to assets and resources, as supported by the Constitution of the Republic of Angola and the Family Code of Angola, extend to rights of land access and land tenure security (the Family Code, 1989). Marriage is defined in the Family Code and includes registered unions and de facto unions as set forth in Titles III-IV of the Family Code. Pursuant to the principles contained in the Constitution and Family Code, spouses in a marriage, whether a registered or in a de facto union, are presumed to have equal rights to the land and any buildings that they occupy, and the burden is on the spouse claiming otherwise to provide evidence of the claim. It is therefore necessary to create specific land protection programs for women, without neglecting the sources of facilitated access and recording of women's information. In addition, it is recommended to introduce in all registration and titling processes a requirement to include the wife's or partner’s name (conventional or traditional marriage) since the owners, man and woman share the same roof.

There is a need to eliminate sources of legal discrimination against women, ethnic and religious minorities, and other disadvantaged groups in economic matters. This includes de facto, as well as, de jure discrimination; this includes efforts to ensure equal rights for women in key economic areas such as land ownership and inheritance. Where the property rights adversely impacted are held by a married couple, whether in a registered or de facto union, payment of cash compensation shall be made jointly to the wife and husband. If the couple elects in-kind compensation, the title to the property transferred shall be in the names of both spouses.

Recommendations to improve women’s land rights in Angola include: implementing legislative and policy reform to remove legal constraints on women’s rights to land, promoting public information and awareness on women’s constraints and opportunities to land access, ensuring the participation of women in the land rights formalization and adjudication processes, and putting in place monitoring and enforcement systems to ensure that land rights formalization efforts successfully recognize and document women’s land rights, as well as enforce those rights.

Conclusions:
Angola has inherited a varied and complex set of landholding and land use practices, the evolution of which has been influenced by customary and cultural traditions, the colonial past, years of conflict and forced migrations, massive urbanization, and the socioeconomic development of the nation. From colonial times until the recent end of the conflict, Angolan legislators have demonstrated a consistent tendency to contain or circumscribe the land rights of the country’s rural and poor peri-urban populations and to direct land resources to the hands of a few, while at various times supporting the development of commercial farming and mineral extraction (Clover 2005).

The incorporation of international norms of good practice of civic and gender rights into Angolan legislation can result in real improvements in procedures for managing land and protecting the tenure rights of women and small-holders. The introduction of the concepts of public consultation and participatory planning in the post-war public discourse may have influenced the inclusion of these concepts in the land and planning laws. Public consultation on the 2004 Land Law was the first opportunity to lobby for the application of rights-based legislation. Angolan civil society advocates for the promotion of land tenure rights for women and the protection of the urban and rural poor against arbitrary and forced removals. Land has become a political issue debated in the parliament and is influencing the platforms of political parties. Opportunities are increasing for civil society and community representatives to employ emerging local spaces such as municipal forums and consultative councils in order to bring the debate on land rights into the public arena. Land issues are likely to be high on the agenda of elected municipal councils when they are instituted after the first local governmental elections in 2020 and the constitution of municipalities with decentralized authority and budgets.

Before one reflects on some of the issues coming from week 1 it is necessary to critique the very frame of customary law and customary institutions.  Firstly customary law cannot be conceptualised as an equivalent of the Western legal system.  Customary law is a key part of Indigenous Knowledge Systems (IKS)  an important knowledge reservoir.  IKS and customary law in particular constitute ways of knowing, which are pivotal in the processes of re-imagining people-land relationship (Ludwig & Macnaghten, 2019).

The point one is making is that the intersection between people and land is replete with physical, social as well and spiritual dimensions, which in the post-colonial context complexify public policy processes.  Some of the context complexities  arise from poor appreciation and understanding  of indigenous values, as well as how those can be mainstreamed into state led policy processes.  Directly linked to conflating customary law with chieftancy systems gives rise to a number of conceptual flaws. 

  • Firstly this frame incorrectly places chieftaincy systems at the centre of customary law, when they are are not - they are a very small part within a bigger system. 
  • Secondly such a frame essentialises chieftaincy system, by default. 
  • Thirdly such a conception forecloses onther more important institutions of customary such as marriage, inheritance and succession, which are centred around family, lineage and clan scales.  For example chieftaincy systems have no role in marriage rules - these operate outside of traditional leaders.  Much of the land is accessed via marriage and inheritance institutions, which are not controlled by chieftancy systems.  In a nutshell customary law institutions cannot be limited to a debate about chieftaincy systems. 
  • The fourth problem emanating from this conceptual flaw results in recognition of customary law as adjunct to chieftaincy systems instead of the other way round.  This anomaly is not only prevalent is South Africa, but unfortunately repeats itself in many countries in Southern Africa.  This  is particulalr evident in South Africa's constitution which also fall in this flaw, by recognising traditional leaders and then customary law as adjunct. 

In a nutshell debate about customary law should not revolve around traditional leadership institutions, but should explore the system of  customary law in its entirety -- go beyond the role of chieftaincy.  In my view this conceptual flaw constitutes the most fundamental flaw for policy development linked to customary law.   Fifthly,  this conceptual flaw does not only misdirect policy questions, but it limits policy debates to a narrow space. 

Policy debates should be about a cross-spectrum of institutions of customary law, hybridisation approaches, procedures and principles for ascertainment, etc.  In that way traditional leaders would emerge as only one small -- but important --  part of the system.   In essence our challenges in Southern Africa are essentially about managing dual legal systems within a single polity, rather thatn about the role of chieftaincy.   Notwithstanding my point, a policy discussion of the role of chiefly systems in land governance is important in its own right, without conflating it. 

So, just to signal my complete agreement with  Siyabu, who makes an extremely important point. The approach in Mozambique is perhaps a good example of how to go some way towards avoiding this, and other, conceptual traps. So the Mozambican legal framework is strong on recognising 'customary' rather than 'traditional', refers to 'norms and practises' rather than 'law', and provides space for the agency of customary institutions without this being linked to the institution of 'chieftancy'. This has helped to focus the debates on the real challenges of recognising legal plurality and what that means, without getting too diverted by the politics of how much power the 'chiefs' should wield.          

Debates about customary law in South Africa are driven by highly idealised, essentialist or ideological concerns. This is a response to extremely politicised concerns about rights, gender and traditional leadership or chiefs. These issues reflect political struggles, struggles around local power and the enforcement of Constitutional rights. The discourse is usually led by land activists or advocates of change. However, we should be mindful of developing more rigorous understanding of 'how we got here' to avoid the traps of reproducing an idealised notion of customary law or customary rights or living law that, though unintended, sets the scene for a goodies and baddies scenario. The disappointments of what some call 'elite capture' is then distilled into an idea that what we are seeing now is not 'the real customary law' but some madness or corruption that is driving these  power brokers; that somehow miscreants who do not represent the 'real customary law' have captured it and are betraying custom. This is simply an extension of the idea that there was in the past 'real customary law' that got 'distorted' by colonial regimes. This is foggy thinking which may serve ideological ends in helping to position 'good' customary law alongside state law on an equal footing, as the Constitution demands,  but does little to help us build strong governance institutions based on a sober understanding of the power struggles in the present, and which will continue in the future and forever more. This requires a grasp of the present moment based on a sober reflection of the past and its legacies, rather than harping to an idealised past. The latter only lends itself to further disappointments, since the geo-spatial world is in a constant process of motion as it interweaves with political movements. To extrapolate the past based on present systems of governance and a ‘rights' discourse without any empirical evidence to back it up, provides us with a simplistic notion that in the past customary law was good, then it was highjacked by the colonial settlers and their minority regimes and now it is again under threat of further distortion by patriarchs, elites or chiefs.

To go back to basics: firstly, on the question of rights, and this applies to gender too. The political economies of pre-colonial societies in sub-Saharan Africa were not based on a shortage of land, and there was no need for 'rights to land'. Labour was the key factor of production and women provided  the labour. Their status in society must be measured accordingly and according to the structure of kinship which was and still is different from kinship systems in the western world.  As my colleague, Siyabu Manona, rightly asserts, there are the “more important institutions of customary such as marriage, inheritance and succession, which are centred around family, lineage and clan scales” in which chiefs and traditional leaders play virtually no role. Family law is part of customary law and much of happens outside of chiefship powers.

However to say that women should have equal rights based on 'real' customary law because in the past women had 'rights' to land is fallacious thinking.  To achieve equal rights to land for men and women (and other gender categories), we must develop a sound understanding of the political economy of the present, and why 'rights to land' has become a central tenet of access to land in the present. The same general argument applies to rights-based land law in general. The Constitution is a twenty first century institution and it represent a set of values, but not all of them are reflected in our systems of governance.

Secondly, there was no concept of 'customary law' in the pre-colonial past. The very term 'customary law' was invented by colonial authorities as should be abundantly evident in nineteenth century colonial commissions and laws regarding 'customary law'. Of course the various colonial regimes filtered custom and customary law through the eyes of contemporary  master-servant  relationships and ideas about civilisation, and later through capitalist relations of production. White minority regimes co-opted many African power structures into the structure of customary law in the twentieth century along the road of segregation and apartheid. That does not mean the concept  has no validity in modern day democracy. It has shown itself to be a rallying call for African values. It has been resurrected as part of the struggle to reconstitute customary norms and values and to find a place for these values in the Constitutional dispensation. 

I fully agree with Siyabu Manona when he writes that "[s]ome of the [post-colonial] context complexities  arise from poor appreciation and understanding  of indigenous values, as well as how those can be mainstreamed into state led policy processes". The issue is about how to restructure the current systems of governance to provide a framework to enforce rights and responsibilities in the present. That will involve, again, to quote Siyabu, "[p]olicy debates should be about a cross-spectrum of institutions of customary law, hybridisation approaches, procedures and principles for ascertainment, etc [to meet the] challenges in Southern Africa [that] are essentially about managing dual legal systems within a single polity". I would prefer the word 'hybrid' or ‘legal pluralism’ to 'dual' but be that as it may, if we built a unified system to meet the norms and values of the people of South Africa, the role of chiefs would be automatically be cut down to size, as their role in land governance would wither away as a unified state governance system develops capacity and infrastructure to provide equal services to all. The state would not require the land administration services of chiefs if state land governance was restructured. Chiefs have burned their way into political power structures and these will not disappear with court judgments and outcries alone. They will only be diluted if the polity itself is unified under more uniform systems of land governance that recognises customary norms and values. To achieve this requires rigorous analysis of the state and the struture of our society to find a pathway for inserting  land governance and land adminisration reform processes into it.

 

Rosalie's contribution above does much to enlarge this conversation and question core assumptions about customary law. She highlights the dangers of reproducing an idealised notion of customary law or customary rights or living law. She reminds us that  there was no concept of 'customary law' in the pre-colonial past. Customary law forms part of the colonial lexicon. It is customary norms and values that are key - the way these are imprinted the social fabric,  but which evolve and change in response to radically altered social circumstances.  There is much talk about legal pluralism, but as far as I can see very little about its practice. How are different legal systems, values and assumptions harmonised in our day to day world. What is the mechaism or process for their intermediation? 

Thanks to Siyabu Manona and respondents for this interesting and important part of the discussion.

I am always left wondering though, when listening to the land tenure debates and discussions about customary land tenure systems, about why ( perhaps its  a South African phenomena) we mostly seem to approach the plurality issue from the lens of the customary practice and how it should be embraced or reviewed or integrated or be included to operate within a unified system other "western systems". 

We seem to do this rather than look at "customary" practices from a wider lens of looking and revieiwing and analysing all the systems within the plural spectrum of property rights and tenure systems.  I would agree with what I think Rosalie Kingwill is suggesting, about not reifying "customary"  either,  as if it reperesents some kind of ideal. While customary practices are a critical element of identity and group identities, they are  very seldom an insular whole any more ie  our globalised world of nation states  has resulted in most people having a wide range of varying and evolving customs and identities.

Rather, in this land tenure discussion, we may call this term "customary" practice for what it is, which is often about a localised political and social system which has been colonised or consumed within a wider national political agenda of nation building.  

My understanding is that land that has been tied up as Property in the "western "system, has also evolved ( and continues to )  in practice over time and in different spaces aross the world. Land held in the form of property rights within various tenure systems have always been dynamically influenced by the prevalent social and, political and economic practices in that space.  Resulting in the many variations of what we now call the "western" system and many varying types of plural systems . 

So can customary practices around land or any other matter eg marriage survive unscathed outside of the Traditional authority system it may have been conceptualised and maintained in? I cant say .... but it is difficult to imagine that such practices even started or survived as a recognised "custom" without some kind of social and political system of authority system in place.  This is a bit uncomfortably close to the idea that it is possible to have a universal property system unbundled from its specific political or social or economic context. I dont this universal system believe it exists. At least, it doesnt exist uniformally.

Fundamentally property rights and land tenure systems require systems of authority, rules and regulations, as it is about relationships, whether in a small localiased "customary" type system or in a democratic or undemocratic nation state.  So the discussion about creating unified tenure systems  or enabling plural tenure systems to exist  surely has to include a discussion about traditional authority systems and their role in land governance if we dont unbundle the underlying norms and values in the Customary system. 

The idea that property rights or a land tenure system can exist as a universal system outside and across  each specific political state or society social practices is what Modern property economists would want us to believe. A tradeable asset neatly and wholly extracted from its specific context.  A recipe for deep inequality.

So when we tackle this question of Customary land tenure I believe we  need to do it from all angles, and especially from the lens of the appropriateness of the existing "western" system it is having to compete with in its specific country context.  As Rosalie Kingwill says a "rigorous analysis of the state and the structure of its society.." and I would add..its economy and its "western" legislated property system. 

 

A key element for me arising from Lisa's thoughtful contribution above is the statement that "fundamentally property rights and land tenure systems requires systems of authority, rules and regulation".  It is here that 'customary norms and practices', 'living customary law ', or howver else we describe this, intersects with the powers vested in local institutions, their leadership and functionaries  -  'traditional authorities' 'regulos', 'sobas', chiefs et al. 

While as Siyabu has argued  it is important not to conflate or subsume customary law with or under the positions and powers of those who enforce the rules, we cannot escape the fact that to be effective and fair, all systems of law require credible institutions to adjudicate, arbitrate and enforce. This brings us back to examining the roles and functions of those who are the face of these institutions and their relationship with the state.

Our small prediscussion survey  which represents

  • 13 responses from South Africa
  • 10 responses from Zambia
  • 6 responses from Mozambique
  • 5 responses from Namibia
  • 5 responses from Zimbabwe
  • 2 responses from Madagascar
  • 2 responses from Botswana
  • 1 response from Eswatini
  • 1 response from Uganda

The survey clearly indicates that there are established institutions playing a role in land allocation and governance on land under customary tenure. The charts below indicate the prevalence of the institutions, their relation with the state and the extent to which their functions are codified in law. 

It would be good to interrogate this relationship further, as the piece submitted by Monica de Souza Louw yesterday complements other submissions on the country pages. These indicate that that in some countries legal processes are increasingly bolstering the powers of local leadership , creating spaces to enlarge elites and displace accoutability upwards. The question remains as to whether customary law, norms and practices will themselves be subverted, or whether they can act as an effective brake on this concentration of power, while illuminating possibilities for the recognition of inclusive land access and ownership models which advance a different property rights paradigm.

Forms response chart. Question title: Are there established institutions such as chiefdoms, traditional leaders and customary decision making fora which play a role in land allocation and governance?. Number of responses: 52 responses.

 

The leadership of the majority of these institution receive salaries or stipends from the state.

Forms response chart. Question title: Do recognised traditional leaders receive salaries or stipends from the state?. Number of responses: 49 responses.

 

And in the majority of the countries surveyed there is national legislation governing the role of traditional leadershop institutions. Exceptions are Tanzania where traditional leadership was banned in the 1960's.

Forms response chart. Question title: Is there national legislation governing the role of traditional leadership institutions?. Number of responses: 52 responses.

The debate has gone pearshaped for a number of reasons.  I do not think this debate is about customary lend tenure systems nor traditional leadership.  Customary law is a broad subject on its own which is part of indigenous knowledge systems.  The veryc concept of customary law needs much scrutiny because it is anchored in particular world views.  Simply accepting the concept without scrutiny is tantamount to allocating to the West the exclusive franchise for thinking tools which we should use to understand not only our situation but also how to change our situation.  Without deconstructing many of these concepts we are unable to shift the locus of knowledge generation away from the West and thereby disrupt longstanding power relations emanating from colonialism.  Without any inclination to romanticise customary law, for the majority of South Africans, it constitutes a way of understanding and interacting with the world around us.   When the concept arose has not bearing on this reality which many Africans live (worl view), which is irrelevant, because we all agree it arose on account of colonialism.  The role of customary institutions in enhancing or undermining land rights is another.  Note by systems and institutions I am refering to applicable sets of norms and rules, not traditional leadership structures.  For example do we classify the Traditional Leadership Framework Act as a customary insitution or as common law institution?  this is a reflection of a small part of codification of customary law which often is not in sink with reality on the ground.  does In my view policy discussions start with understanding the nature and extent of the problem requiring a solution, before any preoccupation with questions of "who will bell the cat"?  

 

Developing a shared understanding of customary norms and practices and how these evolve and change and the extent to which they are recognised and valorised in different country settings is the starting point for thinking about policy options at national and regional scales.  Across the region the evidence is clear that community land rights are under threat: Contributions from the different countries illuminate the different ways in which this is happening. The social values and ways of seeing which are at the heart of living customary law intrinsically resist this dispossession and marginalisation. But we are left with the challenge of

  • how to enlarge the legitimacy and reach of this body of knowledge and practice to strengthen the defences and rights of those whose land and livelihoods are under threat.
  • avoidthe pitfalls and distortions which have characterised attempts to formalise customary law (and tenure systems) via statute and which in South Africa have inflated the powers of 'traditional leaders'

Indeed, the challenge in most Southern African contexts is essentially about managing dual legal systems within a single polity, but perhaps in the Eswatini context it is more about managing dual legal systems in a plural polity and the inevitable tensions between traditional and modern. As the Constitution of the Kingdom of Eswatini clearly states, there is a "traditional government…administered according to Swazi law and custom and the traditional institutions that are pillars of the monarchy…" and these 'pillars' include the chieftaincy. The Constitution goes on to state that "Chiefs are the footstool of iNgwenyama and iNgwenyama rules through the Chiefs" and "the powers and functions of chiefs are in accordance with Swazi law and custom". Thus, the chief, acting in consultation with and on the advice of counsel (as does the iNgwenyama) manages and administers the chiefdom's lands. The Constitution also defines 'executive authority', with the King as head of state, the appointment of a prime minister, cabinet, and civil service – a 'modern government' in other words. Not unsurprisingly, the traditional and modern forms often collide (one manifestation can perhaps be seen in present day events) and land is invariably the cause. The inevitability of this contest over land matters is manifest in the Constitution itself, which created a Land Management Board, appointed by and accountable to the iNgwenyama, and "responsible for the overall management, and for the regulation of any right or interest in land whether urban or rural" (my emphasis). Furthermore, "the State shall endeavour to settle the “land issue” and the issue of land concessions expeditiously". The 'State' in this context being modern government. In 1997 the ministry responsible for natural resources (there is no ministry responsible for land, per se) initiated a land policy process with the aim, among other things, to settle "the land issue". The final 2009 draft proposed a raft of policies giving modern government a mandate over matters traditionally reserved for the chieftaincy. At the policy launch workshop, a senior prince remarked to a government official that the country didn't need a land policy because it already had one.

It would be good to situate the above against the mounting social challenges to the monarchy and the rise of the pro democracy movement in Eswatini and the current state crackdown. Can the system you describe above be sustained? Where are the fracture points?

Customary practices are localised and nuanced to accomodate peculiar circumstances of domestic unit. My research in Zimbabwe (Makura-Paradza 2010) and others in the region have highlighted that the domestic unit has evolved beyond the marital to an increase in single women and child- headed households. This evolution is in part a result of increased autonomy of women, independence, HIV and AIDS induced mortality and work by advicates for women' s land rights. As a result evidence on the ground shows that traditional leaders are allocating land to unmarried women,  allowing widows to continue using land after their marriage and orphans have been able to " inhetit " land. When divorced daughters return to their  villages of birth - they too have bedn accomodated and allocated a place to run their independent household. These practices have increasingly been observed as a norm rather than an exception

Access to arable land is premised mainly on need and community; that is, land is required for a livelihood and sustenance of a family, and that the family, if not already part of the community, is accepted into the community through a ritual of allegiance to the community leader (chief). Traditionally, a community will not allocate arable land to unmarried persons – male or female – however, a family may, but not usually, subdivide their land and allocate to an unmarried family member (the tradition is that a recently married son will be apportioned a part of the landholding that will, in time, become a separate family homestead). More recently, communities in Eswatini are allocating plots for commercial and residential use to youth and women; there are cases where land for commercial agriculture has been allocated to unmarried women. It is also possible for unmarried or widowed women to access arable land through a male relative.

Tenure insecurity for women is a big issue when they are widowed or divorced. Traditionally, a widow may either remain on a family landholding or return to her original community. The old custom of marrying a brother of the deceased now seems quite rare. Issues arise if the widow or divorcee wishes to remarry a foreigner (someone from another community); traditionally, this can be perceived as alienating the landholding to a foreign family and another community. Insecurity is now compounded by 'modernist' views of inheritance, that upon death the homestead is inherited by the eldest son or divided among all the (male) siblings; the traditional outcome is always that the homestead remains a family asset, a new family head recognised, and the widow provided sufficient fields in the homestead's landholding for subsistence. A recent EU supported land governance project in Eswatini, mandated to help strengthen women's land rights,  adopted, adapted and promoted the monarchic custom that upon the death of the iNgwenyama, the Ndlovukazi  (queen mother) assumes the role of Regent during the succession and remains a senior member of the family thereafter. The project also helped traditional leaders to reach out to  younger members of their community, many now working in urban centres,  to raise awareness of traditional norms and customs. Unfortunately, tradition  has less traction in peri-urban areas and along transport corridors where community land is becoming increasingly monetised.

Customary law and institutions are often the most accessible and available remedies for vulnerable rural women and men facing land rights violations in Southern Africa. However, it is also true that without adequate and proper oversight and accountability mechanisms in place, the same laws and institutions can lead to violation of the same rights. It is important that instead of outrightly dismissing these laws and institutions, we acknowledge their benefits and positive aspects and align them with constitutional and human rights imperatives. Once that alignment in law and policy is done, the responsible traditional authorities would need training on these principles and support through properly positioned state institutions.

One good practice at customary law in Southern Africa is that traditional leaders make decisions through a consultative process and often have an inner council to provide advice and help with decision-making. This should be re-purposed to ensure that the inner council includes people with approriate knowledge in human rights, including land rights to advice the traditional authorities. This can assist in removing arbitrariness in decision-making but also in guarding against corruption and abuse of authority as decision-making will not be concentrated in one individual. The SADC region should therefore use the positive aspects of customary law and institutions in coming up with a land policy.

In addition, the increasing use or abuse of traditional authorities for political ends needs to be addressed. This has contributed to authoritarianism by traditional authorities who feel that governments are indebted to them for helping them stay in power and they in turn abuse their power when dealing with issues affecting local populations such as land rights.  Constitutions and laws in SADC must therefore provide that traditional leaders must be non-partisan and must not align with political parties. 

Welcome to the discussion. Makanatsa places emphasis on the value of the consultative processes which underpin decision making within customary systems and suggests that members of the inner council which provides advice on decisions includes those with knowledge of human rights, including new norms in approaching the rights to land. Is this a practical way to make systems of legal pluralism work better? Is there a reverse linkage where customary norms and values can shape statutory law?