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Clarifying tenure rights

August 12, 2016
A participant contributes to a focus group discussion in Siaya County, Kenya

The issue

In postcolonial Africa, formal legal frameworks coexist with traditional land governance. Where formal laws and rules do not protect customary tenure and usage rights, tensions can arise over who has legitimate control over lands. Tenure rights are also undermined by gaps and weaknesses in legal frameworks, and by a failure to implement or enforce them.

What research is finding

In several countries under study, the government relies on formal laws to assert control over land, while rural people rely on customary rules to manage and assert claims to lands. In Liberia, about half of communities surveyed reported they had a council (of elders and traditional custodians) responsible for managing communal resources. But it is not always clear where one system begins and ends, or who has control over lands.

Gaps have also been found in legal frameworks and in the implementation of laws, which can undermine the accountability and legitimacy of land investment processes. In Kenya, for example, researchers observed that land acquisition projects are being undertaken against a background of weakly enforced, failing, or overlapping land administration mechanisms.

Women can be disadvantaged under both formal and customary systems. Even in countries under study where statutory law is gender neutral, it is often applied within a gender-biased social context. Aspects of customary law can also render women’s land rights conditional on their male relations.

The response

A number of projects are working with communities to find the best balance between customary and legal mechanisms, to secure land tenure rights and settle disputes reliably and fairly. In Liberia, Mozambique, and Uganda, community land rights laws may help secure formal land titles while preserving customary rules and practices. In Cameroon, memoranda of understanding between communities, investors, and local authorities reflect both statutory and customary frameworks. 

This is one of five cross-cutting issues that have emerged from early research findings on large-scale land acquisitions in Africa. Read more about how researchers are working with communities to increase their ability to protect their rights.