law and beliefs that drive them never go away, and eventually governments are
engaging rather than trying to abolish customary tenure. Moreover, customary
tenure also has some strength that governments need to understand better and
harness in the reform process.
The literature is also inconclusive when it comes to attributing major economic
recovery of smallholder agriculture mainly to a land tenure reform.
7 This is increasingly seen as is rather unrealistic, given that secure land tenure will not resolve
legacy issues of economic exclusion, poor infrastructure and remoteness from main
markets, and the general inadequacy of public sector investment into these poor
communities.
8 It can also be argued that absence of formal registration does not
automatically mean insecure tenure. Moreover, the extent to which envisaged legal
reform will unlock financial and economic value of land is also an issue that does not
have much evidence of success in the international experience with customary
tenure.
9 It would appear that most attempts to reform aim for the homogenization
of national land laws so as to align all land with mortgage law. Customary land
rights—however well protected and secured—don’t appear to ever fulfill the requirements of commercial banks.
10 It can be argued therefore that it is conservative state
bureaucracy and private mortgage practices and attitudes that need fundamental
reform rather than customary tenure.
There is gravitation towards improving financial viability of rural businesses as
the main means of improving competitiveness and bankability.
It would appear that where regulation is needed, the issue is what type of
regulation as follows
11 :
• Government should avoid outdated colonially derived system that turn communities into squatters on their own lands, otherwise ‘no regulation’ may be better
option;
• A critical role for the modern state is to establish ways of recognising and
incorporating customary land tenure into national law, so that it is adaptable,
dynamic and legitimate.
• Communities and civil society are increasingly recognising that a legitimate
solution lies in protecting and strengthening customary land tenure and community governance.
• Government should therefore ensure that customary land rights are recognised as
property rights in statutory law, not just as user or occupation rights, and have an
equivalent force of law to private deeded property rights. Customary land must
include not only the land of the family, house and farm but also forest, rangeland
7 A discussion revived by the work of de Soto (2000).
8 See i.a. Cousins (2002), Nyamu-Musembi (2006), Sjastaat and Cousins (2009) and
Broomley (2009).
9 Cousins (2002).
10 Broomley (2009).
11 See African Community Rights Network (2011).
Overview of Main Challenges with Regards to Land Tenure in Africa:. . .
123
engaging rather than trying to abolish customary tenure. Moreover, customary
tenure also has some strength that governments need to understand better and
harness in the reform process.
The literature is also inconclusive when it comes to attributing major economic
recovery of smallholder agriculture mainly to a land tenure reform.
7 This is increasingly seen as is rather unrealistic, given that secure land tenure will not resolve
legacy issues of economic exclusion, poor infrastructure and remoteness from main
markets, and the general inadequacy of public sector investment into these poor
communities.
8 It can also be argued that absence of formal registration does not
automatically mean insecure tenure. Moreover, the extent to which envisaged legal
reform will unlock financial and economic value of land is also an issue that does not
have much evidence of success in the international experience with customary
tenure.
9 It would appear that most attempts to reform aim for the homogenization
of national land laws so as to align all land with mortgage law. Customary land
rights—however well protected and secured—don’t appear to ever fulfill the requirements of commercial banks.
10 It can be argued therefore that it is conservative state
bureaucracy and private mortgage practices and attitudes that need fundamental
reform rather than customary tenure.
There is gravitation towards improving financial viability of rural businesses as
the main means of improving competitiveness and bankability.
It would appear that where regulation is needed, the issue is what type of
regulation as follows
11 :
• Government should avoid outdated colonially derived system that turn communities into squatters on their own lands, otherwise ‘no regulation’ may be better
option;
• A critical role for the modern state is to establish ways of recognising and
incorporating customary land tenure into national law, so that it is adaptable,
dynamic and legitimate.
• Communities and civil society are increasingly recognising that a legitimate
solution lies in protecting and strengthening customary land tenure and community governance.
• Government should therefore ensure that customary land rights are recognised as
property rights in statutory law, not just as user or occupation rights, and have an
equivalent force of law to private deeded property rights. Customary land must
include not only the land of the family, house and farm but also forest, rangeland
7 A discussion revived by the work of de Soto (2000).
8 See i.a. Cousins (2002), Nyamu-Musembi (2006), Sjastaat and Cousins (2009) and
Broomley (2009).
9 Cousins (2002).
10 Broomley (2009).
11 See African Community Rights Network (2011).
Overview of Main Challenges with Regards to Land Tenure in Africa:. . .
123