Clarke paints a picture of communities across Sub-Saharan Africa that are increasingly having an officially recognised role managing communal land and local natural
resources.
3 Most importantly, this acknowledges the clear links between land tenure
and how people relate to their environment. These and other scholars do recognise
the need for measured and wise interventions by governments, so as to improve
governance capabilities of local institutions, rather than substitute them.
2 Framing Customary Land Tenure in Context
of Customary Law
Because of the dominance of customary tenure in Africa, it becomes important to
locate customary tenure as part or sub-set of a customary law systems, which in turn
are part of traditional civilization, and belief/value systems or ‘world-views’. International experience shows the challenge in reforming customary tenure on the basis
of given (imposed) law, rather than reforming it in its own right and own evolutionary path.
4 In circumstances were given law drives reforms in customary law, the
envisaged gains may not materialise easily, and/or new challenges and conflicts arise
which also do not go away easily through a greater burden of statutory or given laws
and regulation. Some scholars are now arguing that until African countries adopt
legal pluralism, this challenge will not go away easily.
5 If the idea of legal pluralism
is to be upheld, then there ought “to be one legal system with two coequal sets of
legal rules—received law and customary law—and the judicial system is empowered
to fuse the systems over the long term. This equality means that communal and
collective rights in land are recognized and protected, and people can choose one
equal tenure and legal system over another.
There is also local-level land administration and registration, where all customary interests are recorded and protected in land adjudication and customary as well
as statutory alternative dispute resolution processes can be used. In addition,
pluralist tenure and land law extend to urban areas, along with land regularization
schemes and urban land adjudication”.
6
It is then feasible for the legal systems to draw from national goals and regulate so
that legal rules are adapted to meet constitutional and relevant international norms
relating to such priorities as gender equality, administrative justice, and protection of
private and communal property rights. Experiences with customary tenure reforms
show that African countries are increasingly adopting a pluralist approach. Africans
more and more try to cease attempts to abolish customary tenure—given that
abolition is an approach that is akin to ‘running way from one’s shadow’. Customary
3 Clarke (2009).
4 See Toulmin and Quan (2000) for further reference.
5 See McAuslan (2005).
6 McAuslan (2005).
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M. Munyuki-Hungwe and M. Rukuni
resources.
3 Most importantly, this acknowledges the clear links between land tenure
and how people relate to their environment. These and other scholars do recognise
the need for measured and wise interventions by governments, so as to improve
governance capabilities of local institutions, rather than substitute them.
2 Framing Customary Land Tenure in Context
of Customary Law
Because of the dominance of customary tenure in Africa, it becomes important to
locate customary tenure as part or sub-set of a customary law systems, which in turn
are part of traditional civilization, and belief/value systems or ‘world-views’. International experience shows the challenge in reforming customary tenure on the basis
of given (imposed) law, rather than reforming it in its own right and own evolutionary path.
4 In circumstances were given law drives reforms in customary law, the
envisaged gains may not materialise easily, and/or new challenges and conflicts arise
which also do not go away easily through a greater burden of statutory or given laws
and regulation. Some scholars are now arguing that until African countries adopt
legal pluralism, this challenge will not go away easily.
5 If the idea of legal pluralism
is to be upheld, then there ought “to be one legal system with two coequal sets of
legal rules—received law and customary law—and the judicial system is empowered
to fuse the systems over the long term. This equality means that communal and
collective rights in land are recognized and protected, and people can choose one
equal tenure and legal system over another.
There is also local-level land administration and registration, where all customary interests are recorded and protected in land adjudication and customary as well
as statutory alternative dispute resolution processes can be used. In addition,
pluralist tenure and land law extend to urban areas, along with land regularization
schemes and urban land adjudication”.
6
It is then feasible for the legal systems to draw from national goals and regulate so
that legal rules are adapted to meet constitutional and relevant international norms
relating to such priorities as gender equality, administrative justice, and protection of
private and communal property rights. Experiences with customary tenure reforms
show that African countries are increasingly adopting a pluralist approach. Africans
more and more try to cease attempts to abolish customary tenure—given that
abolition is an approach that is akin to ‘running way from one’s shadow’. Customary
3 Clarke (2009).
4 See Toulmin and Quan (2000) for further reference.
5 See McAuslan (2005).
6 McAuslan (2005).
122
M. Munyuki-Hungwe and M. Rukuni