International Institute for Justice and Development


The Neo-Rush for Land

Posted on May 17, 2016

By: Jillian Nowlin

This article in the IIJD's African Land Grab series addresses the most obvious of the injustices perpetrated by land grabs – loss of property rights.  Aside from economic, food, and environmental injustices, loss of the right to one’s land and to dictate its usage is at the foundation of the land grabs issue.  In the past decade thousands of Africans have been forced to leave their homes due to the land deals struck by their governments with various foreign investors.  In Ethiopia alone tens of thousands of people have been forced to leave their ancestral farmlands by the central government in Addis Abba.   In the following article, African property rights will be discussed as they pertain to land grabs and the measures that must be taken to ensure the protection of those rights.

 

African Philosophies on Land Tenure

The discrepancies between the African understanding of property and the Western understanding of property is an essential part of what jeopardizes Africans’ land rights and enables land grabs to take place by foreign parties.  Whereas statutory, or state-derived, land tenure systems dominate Western property law, African land tenure systems are based on the practice of customary land tenure.  A customary land tenure system is one in which land is informally controlled by the community and all uses of that land are decided upon collectively rather than individually.  Historically, African village elders, kings, or chiefs have always acted as land trustees with the power to allocate land to members of the community.  Those community members with land were able to utilize the land for their benefit, but could not dispose of the land without the consent of the community leader.  For most African communities land usage was usufruct meaning that individuals had the right to take advantage of the community land for their own benefit, but their usage of that land stopped short of waste or destruction.  These established, cultural views on land and property are still practiced in African society and dictate the average African’s understanding of land rights.   Because community ownership is at the foundation of customary land tenure and these philosophies are so dissimilar to Western land tenure philosophy, there is much friction between the African rural communities who operate based upon communal land ownership and Western dominated international markets demanding the titling of African land to individual owners.

This is not to say that Africans do not have a concept of individual ownership.  For the typical rural African, individual ownership is important as far as available land for individual planting, grazing, and water as well as land to give to future generations.  Little concern is given as to who holds the land title on which they live because ultimately land always goes back to the community from which they benefit as a member.  Instead of viewing land as a commodity for exchange, Africans view land as a symbol of wealth, prestige, and social status.   Most Africans identify with their land through ancestry as many times their deceased family members are buried on that land.  Thus, like many cultures all over the world, including Western cultures, Africans’ connections to land is cultural, and land grabs also infringe upon African cultural rights.

 

Demands of the Modern International Land Market

Many experts within the international development community believe that land reform is quintessential to African growth and development.  They argue that African states must establish land regulatory systems in which land ownership can be registered in order for that land to be traded as a commodity to fall in line with Western real estate markets.   While many African states have attempted to implement land registration systems within their borders, they have had little success.  These failures are a direct consequence of the deeply ingrained cultural concepts on land tenure.  One might argue that by selling or leasing land to foreign governments or corporations, African governments are in fact trying to bring sorely needed investment onto African soil.  However, investment in Africa should not come at the expense of ordinary Africans’ property rights.  This is injustice.  Additionally, most of the land deals struck by African governments are not in the best interest of their constituents. 

Many African states have laws that order community consultations to decide what the land may be used for, especially as it pertains to foreign investment.  For example, Mozambique’s Land Law calls for permission to occupy. This law states that foreign investors must consult with both the central government and the local communities living on the land in which the investor is interested in leasing.  Other African states such as Eritrea, Ghana, Angola, and Tanzania have similar land laws to Mozambique’s permission to occupy.  However, research shows that the number of land deals struck between investors and the Mozambican government are disproportionate to the number of community consultations that have actually taken place.  Furthermore, those community consultations that do take place are often not representative of the population that lives on the land in question.

 

Laws Protecting Land Rights 

Interregional laws such as Articles 13 and 14 of the Banjul Charter  and international laws such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) were also created to protect community property loss of those who consider their land integral to their cultural identity.  Article 25 of UNDRIP recognizes indigenous peoples’ spiritual connection to their land while Article 26 ensures the right to utilize the land and its resources in the ways that have been historically practiced by the people there.   Moreover, article 10 of UNDRIP states, “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”

Despite the fact that valid reasons exist for African land reform,  the current land grabs taking place are a far cry from the answer.  Instead, they rob people of their cultures and futures.  Any Western-based land registry systems established have floundered because they have failed to take into account the cultural land tenure philosophies that Africans have practiced for centuries.  Second, most African states have inefficient and dysfunctional government land registration framework, and many rural Africans do not have the means or finances required to register their land.  Last, both African governments and the foreign governments or businesses buying land are operating through undemocratic, corrupt channels.  Without cultural synthesizing there can be no sustainability, and without employing democracy there can be no justice.  Rather than a lack of legal precedence, land grabs come from a lack of enforcement.  As previously discussed, laws already exist to protect Africans from eviction without proper cause.  Instead, more needs to be done by African civil society to pressure their governments into acting ethically, and where property laws are lacking the utmost should be done to create hybrid laws that both answer to modern market demands while also utilizing the best of African property philosophies.

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In the next article of the African Land Grab series, we will discuss the economic injustices resulting from land grabs.

References

"Ethiopia: Thousands Driven out in Land Grab." United Press International, Inc. United Press International, Inc., 18 Jan. 2012. Web. 7 May 2012. <http://www.upi.com/Business_News/Energy-Resources/2012/01/18/Ethiopia-Thousands-driven-out-in-land-grab/UPI-60071326912191/print#ixzz1uC2CswwF>.
  Ssekandi, Francis M. "Social, Political and Equity Aspects of Land and Property Rights." African Law Reporter. African Law Reporter, 2002. Web. 4 June 2012. <http://jurisafrica.org/html/articles.htm>. 7.
  Ibid. 16.
  Ibid. 15.
  Alden Wily, Liz. Governance and Land Relations: A Review of Decentralisation of Land Administration and Management In Africa. Governance and Land Relations: A Review of Decentralisation of Land Administration and Management In Africa. International Institute for Environment and Development, 2003. Web. 9 Apr. 2012. 33.
  Ssekandi 4.
  United Nations Declaration on the Rights of Indigenous Peoples. 13 Sept. 2007. Convention. United Nations, New York.10.
  Ibid. 6.
  Ssekandi 18.