and other lands held collectively, including those that are currently considered as
state-owned.
• Government should recognise enormous benefits of recognising customary land
tenure systems, and the huge problems created by giving primacy to foreignderived law.
The best-case scenarios would start with legal pluralism as the long-term answer,
with customary law and given/imposed law equal and the judiciary able to interpret
both and fuse these as a long-term strategy.
12 This can lead into 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. Pluralist tenure and land law would extend to all
areas—rural areas, rural towns and municipalities and urban areas. Participatory
community planning replaces top-down master planning. Formal market institutions
would come on board, and officials are advisers and facilitators of lay people who all
are part of the decision-making process. There are clear rules for actions and transactions, as well as mechanisms for enforcement. That is mortgage law adapts to
customary tenure.
The spirit of empowering rural people is noble. The devil is in the HOW.
Governments need to learn from international good practice and some of it is
covered below as follows
13 :
• The starting point is the statutory law recognising customary tenure rights before
registration process. Registration should protect existing unregistered rights
rather than undermine them (Uganda).
• Pilots used as a first step to implementation, with a strong monitoring and
learning component to feed into subsequent planning and role out (Uganda,
Mozambique).
• Creation of an outside boundary recorded/registered in the Surveyor General,
with the rights on the inside held locally/by local office protects people from land
theft by the State or investors. Information on the land rights of investors, state
and the poor must be kept on the same record (Mozambique, Uganda, Namibia,
South Africa).
• Registration is more effective when phased generally as follows:
– Establish a decentralized system of land administration and adjudication down
to community level.
Demarcate and register the land administration zones and formalize land
governance structures for each zone
– Commence voluntary registration based on need.
12 See McAuslan (2005).
13 See Augustinus (2003).
124
M. Munyuki-Hungwe and M. Rukuni
state-owned.
• Government should recognise enormous benefits of recognising customary land
tenure systems, and the huge problems created by giving primacy to foreignderived law.
The best-case scenarios would start with legal pluralism as the long-term answer,
with customary law and given/imposed law equal and the judiciary able to interpret
both and fuse these as a long-term strategy.
12 This can lead into 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. Pluralist tenure and land law would extend to all
areas—rural areas, rural towns and municipalities and urban areas. Participatory
community planning replaces top-down master planning. Formal market institutions
would come on board, and officials are advisers and facilitators of lay people who all
are part of the decision-making process. There are clear rules for actions and transactions, as well as mechanisms for enforcement. That is mortgage law adapts to
customary tenure.
The spirit of empowering rural people is noble. The devil is in the HOW.
Governments need to learn from international good practice and some of it is
covered below as follows
13 :
• The starting point is the statutory law recognising customary tenure rights before
registration process. Registration should protect existing unregistered rights
rather than undermine them (Uganda).
• Pilots used as a first step to implementation, with a strong monitoring and
learning component to feed into subsequent planning and role out (Uganda,
Mozambique).
• Creation of an outside boundary recorded/registered in the Surveyor General,
with the rights on the inside held locally/by local office protects people from land
theft by the State or investors. Information on the land rights of investors, state
and the poor must be kept on the same record (Mozambique, Uganda, Namibia,
South Africa).
• Registration is more effective when phased generally as follows:
– Establish a decentralized system of land administration and adjudication down
to community level.
Demarcate and register the land administration zones and formalize land
governance structures for each zone
– Commence voluntary registration based on need.
12 See McAuslan (2005).
13 See Augustinus (2003).
124
M. Munyuki-Hungwe and M. Rukuni