3.1 Need for ‘Tailored’ Government Intervention
Cotulla goes on to argue that there is need for ‘tailored’ government action that
builds on local practice, even where customary systems seem to work well at the
local level.
18 This has become important lately as powerful outsiders such as urban
elites and foreign investors who do not feel bound by those systems are exerting
demand pressure, and government intervention may be required in these circumstances. In these cases, lack of legal protection for local land rights based on
customary systems may result in local resource users losing land access. And,
whether customary systems are still working well or not, Cotulla continues his
argument, government intervention may be necessary to secure the resource claims
of weaker and more vulnerable groups.
19 Government intervention in customary
systems often also comes with attempts to further reform the inequitable aspects of
customary tenure such as social status, age, gender and other aspects. Poor conceptualization and poor implementation of reforms, however, often lead to ‘capture’ by
local elites (political, business, and NGOs) who then steer that change to suit their
interests, while weaker groups lose out.
3.2 De jure and de facto Rights
One of the challenges in formalized reforms of communal tenure is failure to
acknowledge the important distinction and dichotomy between de facto and de
jure rights to the commons.
20 While according to formal legal instruments the
state generally has primary ownership of the commons across Sub-Saharan Africa,
de facto rights originate from users and generally do not receive state recognition.
Although de facto rights are contained within a group-based system, individual
access rights generally co-exist within the broader communal framework. Importantly, for the majority of Sub-Saharan African communities, these de facto rights
are grounded in customary norms, enforced by indigenous legal systems and may
receive state recognition only to the extent customary law is recognised. Any
analysis of tenure arrangements over the commons therefore requires engagement
with customary, indigenous law or non-state law. Customary law has been the
subject of increasing scholarship in recent decades.
21 It can be defined as legal
rules and processes that have become an intrinsic part of accepted legal conduct and
arise from social practices rather than positive law.
22 For Sub-Saharan contexts it is
18 Cotula (2007).
19 Cotula (2007).
20 Clarke (2009).
21 See i.a. Bennett (2004), Cotula (2007) and Tobin (2013).
22 For a more extensive analysis of the nature of customary law in the African context see
Elias (1956).
Overview of Main Challenges with Regards to Land Tenure in Africa:. . .
127
Cotulla goes on to argue that there is need for ‘tailored’ government action that
builds on local practice, even where customary systems seem to work well at the
local level.
18 This has become important lately as powerful outsiders such as urban
elites and foreign investors who do not feel bound by those systems are exerting
demand pressure, and government intervention may be required in these circumstances. In these cases, lack of legal protection for local land rights based on
customary systems may result in local resource users losing land access. And,
whether customary systems are still working well or not, Cotulla continues his
argument, government intervention may be necessary to secure the resource claims
of weaker and more vulnerable groups.
19 Government intervention in customary
systems often also comes with attempts to further reform the inequitable aspects of
customary tenure such as social status, age, gender and other aspects. Poor conceptualization and poor implementation of reforms, however, often lead to ‘capture’ by
local elites (political, business, and NGOs) who then steer that change to suit their
interests, while weaker groups lose out.
3.2 De jure and de facto Rights
One of the challenges in formalized reforms of communal tenure is failure to
acknowledge the important distinction and dichotomy between de facto and de
jure rights to the commons.
20 While according to formal legal instruments the
state generally has primary ownership of the commons across Sub-Saharan Africa,
de facto rights originate from users and generally do not receive state recognition.
Although de facto rights are contained within a group-based system, individual
access rights generally co-exist within the broader communal framework. Importantly, for the majority of Sub-Saharan African communities, these de facto rights
are grounded in customary norms, enforced by indigenous legal systems and may
receive state recognition only to the extent customary law is recognised. Any
analysis of tenure arrangements over the commons therefore requires engagement
with customary, indigenous law or non-state law. Customary law has been the
subject of increasing scholarship in recent decades.
21 It can be defined as legal
rules and processes that have become an intrinsic part of accepted legal conduct and
arise from social practices rather than positive law.
22 For Sub-Saharan contexts it is
18 Cotula (2007).
19 Cotula (2007).
20 Clarke (2009).
21 See i.a. Bennett (2004), Cotula (2007) and Tobin (2013).
22 For a more extensive analysis of the nature of customary law in the African context see
Elias (1956).
Overview of Main Challenges with Regards to Land Tenure in Africa:. . .
127