usually based on indigenous norms and value systems. Today there is now widespread recognition that customary principles and dispute resolution processes represent the most relevant legal framework for rural communities in Sub-Saharan
Africa. Current literature emphasises the dynamic, adaptive and flexible capacity
of customary legal systems, dispelling widely held conceptions regarding their static,
‘traditional’ nature.
23
These authors also provide a further distinction between ‘communal tenure’ and
‘customary law’.
24 Customary law governs tenure over the commons in the majority
of rural Africa. Communal tenure can be defined as—community rights to common
property and resources—and customary law as—the indigenous norms and institutions that govern access and use. Despite a trend towards increasing formalisation of
land tenure, particularly in urban and peri-urban areas, customary land management
institutions are still the most important authority regulating communal land administration. Regardless of this reality, until recently customary authorities have been
severely marginalised in land reform policies, primarily due to the centrist nature of
reform and the presumed insecurity of tenure they afford.
In a positive shift, there is now greater recognition that communal tenure and
customary land institutions must be an integral part of land administration. Improving security of tenure in Africa has remained a controversial, politically charged and
potentially destabilising issue.
This is occasioned by the colonial legacy of legal pluralism, mass expropriation
of land, marginalisation of indigenous tenure systems, all leading to uncertainty over
land tenure.
Large-scale national reforms have been widely criticized in the literature.
25 In
most cases effective implementation has proved unachievable or has actually
resulted in increased tenure insecurity. Even after decades of reform towards
formalisation, it has been estimated that only 2–10 per cent of rural land across the
continent has been formally titled.
26 Numerous studies have demonstrated the
negative consequences that titling processes can cause. Meizen-Dick et al. demonstrate the risks inherent in titling policies, particularly for secondary rights users, due
to elite capture and increasing inequality in land ownership.
27 Nyamu-Mesembi
further highlights the failure of formal title to increase access to credit in rural Africa,
despite assumptions to the contrary.
28 As a result, current literature emphasises
reforms that build on existing indigenous practices, empower local communities,
avoid one-size- fits-all solutions, and appreciate the political and social dynamics
23 Schlager and Ostrom (1992), Ouedraogo and Toulmin (1999) and Cotula (2007).
24 Schlager and Ostrom (1992), Ouedraogo and Toulmin (1999) and Cotula (2007).
25 See i.a. Walsh (1993), Place and Migot-Adholla (1998) and Okoth-Ogendo (2014).
26 Clarke (2009).
27 Meizen-Dick et al. (2008).
28 Nyamu-Musembi (2006).
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M. Munyuki-Hungwe and M. Rukuni
Africa. Current literature emphasises the dynamic, adaptive and flexible capacity
of customary legal systems, dispelling widely held conceptions regarding their static,
‘traditional’ nature.
23
These authors also provide a further distinction between ‘communal tenure’ and
‘customary law’.
24 Customary law governs tenure over the commons in the majority
of rural Africa. Communal tenure can be defined as—community rights to common
property and resources—and customary law as—the indigenous norms and institutions that govern access and use. Despite a trend towards increasing formalisation of
land tenure, particularly in urban and peri-urban areas, customary land management
institutions are still the most important authority regulating communal land administration. Regardless of this reality, until recently customary authorities have been
severely marginalised in land reform policies, primarily due to the centrist nature of
reform and the presumed insecurity of tenure they afford.
In a positive shift, there is now greater recognition that communal tenure and
customary land institutions must be an integral part of land administration. Improving security of tenure in Africa has remained a controversial, politically charged and
potentially destabilising issue.
This is occasioned by the colonial legacy of legal pluralism, mass expropriation
of land, marginalisation of indigenous tenure systems, all leading to uncertainty over
land tenure.
Large-scale national reforms have been widely criticized in the literature.
25 In
most cases effective implementation has proved unachievable or has actually
resulted in increased tenure insecurity. Even after decades of reform towards
formalisation, it has been estimated that only 2–10 per cent of rural land across the
continent has been formally titled.
26 Numerous studies have demonstrated the
negative consequences that titling processes can cause. Meizen-Dick et al. demonstrate the risks inherent in titling policies, particularly for secondary rights users, due
to elite capture and increasing inequality in land ownership.
27 Nyamu-Mesembi
further highlights the failure of formal title to increase access to credit in rural Africa,
despite assumptions to the contrary.
28 As a result, current literature emphasises
reforms that build on existing indigenous practices, empower local communities,
avoid one-size- fits-all solutions, and appreciate the political and social dynamics
23 Schlager and Ostrom (1992), Ouedraogo and Toulmin (1999) and Cotula (2007).
24 Schlager and Ostrom (1992), Ouedraogo and Toulmin (1999) and Cotula (2007).
25 See i.a. Walsh (1993), Place and Migot-Adholla (1998) and Okoth-Ogendo (2014).
26 Clarke (2009).
27 Meizen-Dick et al. (2008).
28 Nyamu-Musembi (2006).
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M. Munyuki-Hungwe and M. Rukuni