Contemporary Land Tenure Policy Frameworks: Analysis of Land Policy Directives on

African Socio-economic Development

African Studies 301 (L01)

Dr. C. Apentiik
December 5, 2007
 2

Land reform has become a very active area in the analysis of contemporary African

development. Different approaches and novel analyses on the growth potential of new land

tenure agreements have brought forth new optimism from policy analysts and governments

alike. This has not materialized separately from the international IPR (Intellectual Property

Rights) revolution, which started in the mid 1980s. The protection of property in all forms

has been advocated through many international agreements and international institutions.

Efficient use of resources, primarily land, has come to be seen as a means to an end, creating

efficiency and subsequently growth.1 Debates on the prospects of land privatization have

been very polarized, with many analysts either in support of legal administrative tenure

reforms, or strictly opposed. Although the issue of land reform seems to be a novel way of

approaching legal structures, and wider development issues as advocated by the work of

researchers such as De Soto, there is historical evidence to show the advent of such reforms

through indigenous mechanisms by Africans themselves.2 It is in this regard where the issue

of land privatization must be clearly examined. The advent of contemporary land reform

dictates in Africa has been advocated externally by international institutions as part of wider

liberalization mechanisms. Although the impetus for land reform itself began as a process of

demands by rural constituents in African countries, the issue has come to be analyzed not in

the allocation of tenure, but in the re- examination of the legal provisions of land tenure

itself.3 Thus land reform has not taken into consideration the effects on Africans, but instead

the prospects for macro-economic growth.

Legal protection given to one’s property has its roots in European political history in

the writings of philosopher John Locke. Locke believed that if one took land and mixed one’s

labour into it, the land would subsequently be justified to be one’s property, as the respective
 3

individual had toiled their labour into the land. In The Second Treatise of Government he

writes, “As much land as a man tills, plants, improves, cultivates, and can use the product of,

so much is his property. He, by his labour does, as it were, enclose it from the common.”4 It

is to this end that the idea of property ownership was brought in by colonial administrators to

their colonies.

By the late 1800s social dynamics in Britain changed the way in which colonial

administrators would oversee property. Urban unemployment was growing in Britain as

many rural migrants were moving to the city in search of work, to combat this phenomenon,

administrators in Africa made community control of land a means to help deter this rural

-urban migration.5 This mechanism was also used as a way to ensure easier administration, as

Africans were not allowed to have access to their own property. Thus despite London’s

disapproval of large holdings and condemnation of racial discrimination in land allocations in

Kenya for example, a sweeping land ordinance approved in 1915 gave white settlers almost

all they had hoped to gain.6 Thus the non-market mechanism employed by administers in

overseeing customary tenure in Africa is as much a colonial construction, as is the observation

made that is an extension of African value systems.7

The 1930s showed a growth in land degradation and poverty in many rural areas,

colonial powers thus moved to find ways to promote commodity production by providing

investment, and market regulation to help bolster economic progress.8 Thereby paving the

way to reorient the very system of land allocation the colonizers had helped instrument. Thus

individualization of land holdings was promoted as a mechanism for long-term growth. Yet

up until the 1980s customary tenure stayed the norm, except for cases where national
 4

governments saw it as an obstacle to agrarian reform, and tried to mend the system by

replacing tribal authorities with elected local officials (e.g. Mozambique, Tanzania). 9

By the 1980s polices began to shift and the idea of private tenure as a way to facilitate

investment, credit collateral etc was re-introduced as a postulation of overall market

liberalization as a means for economic growth.10 Institutions, mainly the World Bank, began

talking about the discernible link between property rights, and social/economic development;

the former being the precondition for the latter. The World Bank has come to tout secure

property rights as much as it mentions institutional governance and the rule of law.11 This

analysis has come to connect all shortfalls within major economic sectors as being directly

correlated to the lack of secure tenure. The idea behind the World Bank’s multi-pronged

development initiative was and still is that secure property will encourage investment and

thereby productivity; efficient markets are the only way for growth to occur from the

perspective of the bank.12 A key justification for secure property rights is that they provide

incentives for investment in land and sustainable resource management. An example is in

areas that are naturally suitable for arable cultivation, with low population densities

cultivators have no incentive to invest in soil fertility, and instead will practice shifting

cultivation.13 This is one of many examples used in World Bank policy reports to help

establish its claim for secure land as a means of increasing incentives in productivity. Yet the

main rhetoric within policy documents does not focus on mechanisms of how indigenous

African farmers can change their investment focuses, but rather on attracting outside

investment. This in turn excludes small farmers, due to the inevitably high transaction costs

for lending by credit issuers to poor rural farmers.14 Although the World Bank has advocated

that the means to implement this legal administrative overhaul must not entail a ‘one size fits
 5

all solution’, this has seemed to be the case. Latin America has been used as a reference point

for the policy reforms that have been advocated by the World Bank. Yet when examining the

history of land reform in many Latin American countries of rents from the ruling class to

tenant workers, it is not surprising that most large-scale land reforms were associated with

revolts (Bolivia) and revolutions (Chile, China, Cuba, El Salvador, Mexico).15 Although the

World Bank maintains that land reform toward private tenure rights is the only way to

establish secure mechanisms for free markets, it overlooks the vigorous process in which this

has been attained - especially in the context of Latin America.16

The World Bank has produced a variety of influential reports on the issue of land

reform since the 1970s, with its policy recommendations influencing the type of development

activity financed and supported throughout the world by international financial institutions

(IFI’s) and donors.17 The roots of the impetus by external actors such as the World Bank in

Africa must be looked at within the context of the overarching goal of these organizations to

subject people everywhere to the disciplines of the global marketplace, as only a very strict

free-market system is believed to create economic growth.18 Although land policy is

advocated as taking into consideration the voices of those it will inevitably effect,

beneficiaries have only been heard for brief periods, as was the case in Tanzania before the

Village Land Act of 1998.

Land tenure was primarily voiced by rural constituents who were looking for more

equitable redistribution of land, based on existing common law.19 Yet what has happened is an

overhaul of the administration of land laws and acts which have opened land to more

favourable investment promotion and protection for foreign investors.20 Thus land policy has

not addressed the primary issue for which it began: addressing land issues, primarily of rural
 6

African farmers, but has encroached on a new road of land liberalization and means of

establishing credit collateral. The urgency pushed forward by the World Bank can be

explained by other dynamic macro-economic factors taking place within the African

continent. The changing investment climate is being used as a way to attract foreign capital;

according to the International Monetary Fund (IMF) real growth in the continent is projected

to rise from 5.7% in 2006 to 6.1% this year and 6.8% in 2008. Only about 20% of families in

Africa have bank accounts, with small and medium-sized firms struggling to borrow; as

private credit accounts for only around 18% of GDP in Africa.21 Africa is thus being touted as

a new market with high potential and emerging investment value. This is one dynamic that

can explain the push toward reforming legal structures to protect private property, as only

through such mechanisms will investors feel safe contributing capital. Therefore the question

has been asked what the issue around land tenure in Africa actually is. Customary tenure

contracts are already in place through the mechanisms of Africans themselves, and by the

processes the colonial administrators themselves helped establish (discussed above), thus land

policy has become not about the tenure itself, but on the concentration of tenure rights. This

inevitably has only worsened the problems that land reform was to displace within the

continent, as it has allowed internal mechanisms to be utilized to re-orient land allocation.22

Land policy has been advocated mainly by external actors such as the World Bank, yet

the actual implications within African country contexts themselves have been seldom

examined. The mechanism of land reform has come to take on a primarily legal

administrative overhaul, and thus has created complex mechanisms, which have in many

cases marginalized the poor. Examining the 1998 Tanzanian Land Act demonstrates the

hidden conditions that inevitably work against poor peasants and women. The leasing
 7

agreements allow for joint ventures of village societies and other investors for a term not

exceeding 99 years, yet the implications create disadvantages for those who are not part of the

village’s male elite who enter into these agreements.23 The creation of title deeds, as observed

in the few African contexts they have been implemented have not shown a greater propensity

of access to farm credit, as poor farmers do not understand many of the mechanisms of the

new property laws.24 This is no surprise as many of the African policymakers themselves

looked to consultants from the World Bank and the British Department for International

Development to help translate complex land law. These same organizations have also played

a major role in funding land reform since the early 1990’s.25 Furthermore, the major feature

of the land reform process has been political, as rent-seeking bureaucrats have been able to

use their influence within the land administration agencies to acquire title deeds in a non-

transparent manner, confiscating existing informal property rights of local communities or

unregistered state lands.26 This has extended into the legal administration of district land

boards and committees themselves. In Uganda for example, the new land administration

required the creation of forty-five new district land boards, and over 9,000 land committees.27

Thus even though the World Bank advocated land reform as a process to ensure proper

governance and the rule of law, the massive creation of such committees may have

inadvertently allowed for the abuse of how land holdings would be registered and

administered by those appointed to carry out such processes. Lack of administrative capacity

in keeping up to date records also posses a threat to mitigating inevitable land disputes, as

many countries have not shown a propensity to achieve such administrative capacity. In

addition the new land tenure frameworks were created in disregard for traditional local

authorities and customary tenure agreements, thus consolidating more control to the state.28
 8

Land reform has thus become political within the contexts of African states themselves,

particularly when examining Uganda and Tanzania. Woman’s groups began to see the

detrimental impacts the land bills would have on woman, especially spouses, due to the fact

that commercial lenders found it to their advantage to not have statutory co-ownership

provisions.29 Thus due to the lobby of the Bankers’ Association of Uganda for instance, the

land act amendment allowing spousal co-ownership was disqualified; the president himself

admitted that he had personally intervened to delete the amendment.30 The policy impetus to

minimize all risk in commercial lending has been coordinated by those who stand to gain

within the countries themselves, primarily commercial lenders. Yet such policies threaten

those who are the most vulnerable – poor woman. By giving responsibilities to the husband,

woman will have no say in the dealings of their land, posing a serious threat of dispossession

to those who are already marginalized, losing the very thing they depend on for their

livelihoods.31 The concerns voiced by many have in some cases been taken up government,

for instance the Tanzanian government tried to undertake a thorough overhaul of the country’s

land laws through the Presidential Commission in order to help appease the grievances of

rural constituents. Yet the recommendations advocated were ignored primarily because the

report was not as anticipated by the government, what was expected was a report “...that

would rationalise and legitimate the impending liberalization of land in line with the policy

diktat of the international financial institutions.”32 The interesting aspect to note in all of the

land policy agreements is the justification and ultimate ends for these policies

HIV/AIDS has posed a major impediment in the way that land is inherited.

Traditional systems of land inheritance have been circumvented as the stigma of the disease

has led to the dispossession of land by in-laws of widows and orphans.33 Provisions for this
 9

have been put in place, in Uganda for instance, which requires consent by spouses and

children before family land can be transferred.34 Yet the pandemic has also been used as a

way to hide the commoditization of communal land, particularly working against widows of

AIDS victims.35 Due to the fact that the new land laws themselves exclude woman, yet the

impetus to change from customary law was to guarantee rights to spouses.36 These particular

issues reveal a marked irony in the implementation of new land policy frameworks. The main

impetus is to guarantee protection for the most vulnerable groups, primarily being poor

woman. Yet after examining specific land policies implemented within African contexts

themselves, it seems to reveal the opposite.

Land reform has been looked at as the contemporary answer to the problems of

poverty for the African continent, as echoed in the words of Alan Budd, former chief

economic advisor to the British Treasury declaring, “what Hernando De Soto has done is to

solve the mystery of poverty.”37 Although the conceptualization of such frameworks were

moulded on the basis of creating a new means for lifting the poorest of the poor out of

poverty, empirical evidence has shown otherwise. By not taking into account the effects on

woman, and overlooking existing customary tenure agreements, land policies have in many

cases been detrimental to the livelihoods of individual Africans.38 Land policy has not been

allowed to evolve in response to local dynamics, but has been created through external policy

mechanisms. These policies have focused their attention on aggregate growth, rather then on

the implications for local individuals. By not including all relevant stakeholders, mainly the

recipients themselves, land reform has become contentious, and ironically has worked to

marginalize those it purports to be the long-run beneficiary.

1
Stefan Andreasson, “Stand and Deliver: Private Property and the Politics of Global Dispossession,” Political Studies, 54
March 2006,
http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=19500730
&site=ehost-live (27 November 2007).
2
Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of
Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006,
http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6-
e7254fdd0a7d%40sessionmgr109 (1December 2007).
3
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 47
4
John Locke, “Second Treatise of Government,” Culture and Values, Vol. I, Lawrence S, Cunningham and John J. Reich,
6th ed, (Belmont, Calif.: Thomson Wadsworth, 2006), 170
5
Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of
Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006,
http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6-
e7254fdd0a7d%40sessionmgr109 (1December 2007).
6
John Weaver “Great Land Rush and the Making of the Modern World, 1650-1900.”
(Montreal: McGill-Queen's University Press, 2003), 50.
7
Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of
Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006,
http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6-
e7254fdd0a7d%40sessionmgr109 (1December 2007).
8
Ibid
9
Admos Chimhowu, and Phil Woodhouse, “Customary Verses Private Property Rights? Dynamics and Trajectories of
Vernacular Land Markets in Sub-Saharan Africa,” Journal of Agrarian Change, 6 July 2006,
http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-4403-a6a6-
e7254fdd0a7d%40sessionmgr109 (1December 2007).
10
Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan
Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 4.
11
Kristin Hallberg, “Improving Investment Climates: An Evaluation of World Bank Group Assistance,” (Herndon, VA,
USA: World Bank Publications 2006), 70.
12
Ibid
13
World Bank, “Land Policies for Growth and Poverty Reduction,” (Washington, DC, USA: World Bank Publications,
2003), 9
14
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 58
15
Ibid, 15
16
Stefan Andreasson, “Stand and Deliver: Private Property and the Politics of Global Dispossession,” Political Studies, 54
March 2006,
17
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 54
18
Simeon Ilesanmi, “Leave No Poor Behind: Globalization and the Imperative of Socio-Economic and Development Rights
from an African Perspective,” Journal of Religious Ethics, 32 April 2004,
http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=9&hid=117&sid=743fb039-114b-4346-bf8f-
aa46380af039%40sessionmgr104
19
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 67
20
Ibid, 89
21
Diana Hunt, “Some Outstanding Issues in the Debate on External Promotion of Land Privatization,” Development Policy
Review, 23 March 2005
22
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 37
23
Ibid, 69
24
Diana Hunt, “Some Outstanding Issues in the Debate on External Promotion of Land Privatization,” Development
Policy Review, 23 March 2005,
http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=16146123
&site=ehost-live (26 November 2007).
25
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 87
26
Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan
Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 12
27
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 88
28
Ibid
29
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 132
30
Ibid, 105
31
Ibid, 104
32
Economist, “On the Frontier of Finance,” Nov 15, 2007,
http://www.economist.com/printedition/index.cfm?d=20071117 (25 Nov 2007).
33
Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan
Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 14
34
Ibid
35
Stefan Andreasson, “Stand and Deliver: Private Property and the Politics of Global Dispossession,” Political Studies, 54
March 2006,
http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=19500730
&site=ehost-live (27 November 2007).
36
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 121
37
Rogier van den Brink Et Al, “Consensus, Confusion, and Controversy: Selected Land Reform Issues in Sub Saharan
Africa,” (Herndon, VA, USA: World Bank Publications, 2005), 103
38
Ambreena S, Manji, “The Politics of Land Reform in Africa: From Communal Tenure to Free Markets,” (New York: Zed
Books, 2006), 132

Bibliography
Andreasson, Stefan. “Stand and Deliver: Private Property and the Politics of Global Dispossession.”
Political Studies, 24 March 2006,
http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=a
ph&AN=19500730&site=ehost-live (27 November 2007).

Chimhowu, Admos, and Woodhouse, Phil. “Customary Verses Private Property Rights? Dynamics and
Trajectories of Vernacular Land Markets in Sub-Saharan Africa.” Journal of Agrarian Change, 6 July
2006,
http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=3&hid=101&sid=e06d720b-25fb-
4403-a6a6-e7254fdd0a7d%40sessionmgr109 (1December 2007).

Economist. “On the Frontier of Finance.” Nov 15, 2007,

http://www.economist.com/printedition/index.cfm?d=20071117 (25 Nov 2007).

Hallberg, Kristin. “Improving Investment Climates: An Evaluation of World Bank Group Assistance.”
Herndon, VA, USA: World Bank Publications 2006.

Hunt, Diana. “Some Outstanding Issues in the Debate on External Promotion of Land Privatisation.”
Development Policy Review, 23 March 2005,
http://ezproxy.lib.ucalgary.ca:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=a
ph&AN=16146123&site=ehost-live (26 November 2007).

Ilesanmi, O. Simeon. “Leave No Poor Behind: Globalization and the Imperative of Socio-Economic
and Development Rights from an African Perspective.” Journal of Religious Ethics, 32 April 2004,
http://web.ebscohost.com.ezproxy.lib.ucalgary.ca/ehost/pdf?vid=9&hid=117&sid=743fb039-114b-
4346-bf8f-aa46380af039%40sessionmgr104

Locke, John. “Second Treatise of Government,” Culture and Values, Vol. I, Lawrence S, Cunningham
and John J. Reich, 6th ed, Belmont, Calif.: Thomson Wadsworth, 2006.

Manji, Ambreena S. “The Politics of Land Reform in Africa: From Communal Tenure to Free
Markets.” New York: Zed Books, 2006.

Van Den Brink, Rogier Et Al. “Consensus, Confusion, and Controversy: Selected Land Reform Issues
in Sub-Saharan Africa.” Herndon, VA, USA: World Bank Publications, 2005.

Weaver, John. “Great Land Rush and the Making of the Modern World, 1650-1900.”
Montreal: McGill-Queen's University Press, 2003.

World Bank. “Land Policies for Growth and Poverty Reduction.” Washington, DC, USA: World Bank
Publications, 2003.