Land Affairs

Traditional Authorities: Do they Deliver Justice in Land Disputes?

The District Land and Housing Tribunal in Tanga.

Policy makers in developing countries face difficult choices when it comes to designing court institutions for settling land disputes. On the one hand, the state court systems are often overburdened with cases. They are often also too expensive to access for most citizens, in particular for women. In other words, to increase the number of courts and reducing the fees may not be a real option in cash-strapped countries with poor populations. Different approaches are required. However, the alternatives may be easier to access, but they often have other unintended consequences.

I was reminded about the dilemma when I read the article Government must consult rural women on the Traditional Court Bill, which criticises the South African government’s decision to vest responsibility over land disputes in customary authorities. A similar critique is raised in the book Land, Power and Custom: Controversies Generated by South Africa's Communal Land Rights Act by Aninka Claassens and Ben Cousins. It describes the customary authorities as being patriarchal and criticizes them for drawing on a repertoire of practices that discriminate against women. Another scholar, Richard Crook, based on his research in Ghana, also warns us against the romanticisation of traditional or customary institutions in his conference paper The state and local justice in Ghana: hybridity, legitimacy and popular values.

In Tanzania, the government in the 1999 Village Land Act and the 2002 Courts (Land Disputes Settlements) Act chose a middle way, prescribing the establishment of village land councils made up, not of professionals, but of appointed laymen and women. The acts also recognized the role of traditional authorities in settling land disputes, but prohibited all gender-discriminatory practices. In theory, these laws and regulations are sound and pragmatic. What the authorities do in practice, however, may be a different matter.

Decoupled Land Reform Implementation in Tanzania

This week I published an article in the Journal of Development Studies. It analyses the slow and eneven implementation of Tanzania’s of new-wave land reform today, more than ten years after its introduction in 1999. I argue that implementation is characterised by decoupling, involving a lack of coherence and of mechanisms of enforcement. It can be observed at all levels within the land administration structure. If Tanzania is to implement the reform on a larger scale, the country has to put greater emphasis on national initiatives to couple administrative layers. More money alone will not solve the problem.

Because of their novelty, our knowledge about current new-wave land reforms in sub-Saharan Africa has hitherto been limited. In the early 2000s land reforms were underway in more than 20 countries. Decentralisation of responsibility for land management has been an important intention in most reforms. How that spelled out in practice, however, remained unclear. Through implementation analyses conducted in rural areas in mainland Tanzania, the article analyses how a new-wave land reform is being implemented at the local level.

Read the article: Decoupled Implementation of New-Wave Land Reforms: Decentralisation and Local Governance of Land in Tanzania. In
Journal of Development Studies, Volume 48, Issue 2, 2012.



Encouraging Land Reform News from Rwanda

Sub-Saharan African countries have introduced a ‘new wave’ of land reforms in the last couple of decades (read about the reforms in this review). Unlike previous, more state-centric reforms, these new reforms decentralise responsibility for the administration of land to the local level and streamline disparate land law regimes. For instance, customary tenure and fully individualised freehold tenure may get converged into a single, more formal tenure system. Typically, reforms also aim at protecting the land rights of women and vulnerable groups.

So far, evidence has been scarce and land reform debates have largely been based on findings from past reforms. Slowly, however, results start appearing. And they are more positive than what many scholars expected. Recently, I received a Working Paper, Environmental and Gender Impacts of Land Tenure Regularisation in Africa, which presents evidence from pilot implementation projects in Rwanda, which is to carry out a nation-wide land tenure regularisation program. Its outcomes were positive, though I do not think they herald a revolution.

The paper concludes that Legally married women were significantly more likely to have their informal ownership rights documented and secured after registration. But women who were not legally married saw diminished property rights, in accordance with the law (p. 14). It is important that the pilot project has improved most women’s access to land. Titling programmes effect on gender equality was an important criticism in the past. Old-fashioned land reforms typically registered land in the name of the household head – the husband – and reduced women’s control over land (read, for instance, this working paper p. 19).

A joint title or seperate property?

The Rwandan findings are largely in line with my findings from implementation projects in Tanzania. But based on my research I would also emphasise that there are significant differences within the groups of married and unmarried women. Single women, I would say, may even be in better off than married women if they get registered as household heads. Women who get single due to divorce, on the other hand, may be worse off. Reform, in other words, polarises women’s positions.

Bottom-line is that new wave land reforms seem to improve most women’s access to land. It does not happen automatically, however. The authors of the working paper warn that ‘careful design based on local conditions, and continued monitoring during implementation’ are required. It is also my impression that the approach of implementers – whether they emphasise women’s rights to land during training sessions and implementation – is important.

Despite these significant findings, the working paper has a serious methodological weakness. It seems to me that the conclusion is based on changes in perceptions only. In other words, the researchers have been looking at whether more women are ‘entitled’ to equal ownership rights (p. 13). It does not tell us whether their actual ability to defend their rights if they have to, for instance in case of divorce. If you have more information about the Rwandan land reform and whether it has actually improved women’s tenure security it is most welcome.

Brief on Tanzania’s Land Reform out now

I have published the Policy Brief The Forgotten Villages. Land Reform in Tanzania. Click here to download it free of charge.

Tanzania's 1999 land reform has decentralised land administration to the rural local village governments, but implementation so far has been slow and uneven. The local authorities rarely get the support they need to make it work. As a consequence, the benefits promised by the reform - economic growth and improved tenure security - do not happen.

There has already been an abundance of donor driven projects to implement the reform, but they have been short-sighted and have tended to forget the local authorities that carry out the actual implementation. Much could be achieved if higher level authorities and NGOs systematically strengthened the village authorities and enabled them to deliver their services. This would be a long-term process and more money alone would not solve the problem. But as long as this level of administration is forgotten, the land reform will not work in practice.

Good news from the Tanzanian Government?

It is not often that I praise the Tanzanian government. But good news appeared from there recently. Maybe. At a conference for land stakeholders the Minister of Lands, Housing and Human Settlements Development, Mrs. Tibaijuka, decried the bitter conflicts between villagers and investors. Her comments were, I believe, aimed at the land grabbing debate. In order to end these conflicts, she said, according to an article in the Citizen, the Ministry of Lands had made rules to ensure that no land is allocated and no deals are made unless local representatives are made part of the process and play a part in signing the documents. If that means that the village authorities are guaranteed a role and final say in land deals, this is good news!

In a previous blog post I have written about the lack of sustainability which characterises deals made without proper involvement of the village authorities. I have also written about the amendments of the Village Land Act, currently underway, which are rumoured to aim at facilitating land deals by bypassing the villages authorities. If Mrs. Tibaijuka’s announcement means that the village authorities’ role in land deals will be strengthened, it is a new signal and a very positive one. But maybe that was not what Mrs. Tibaijuka meant. According to the article in the Citizen she said that local representatives should be made aware and play a part in the deals and then she continued: Councillors and MPs should attend all the meetings in which plans to offer land to an investor are discussed. They should comply with the plans before any deal is signed. But are district councillors and MPs ‘local representatives’ when it comes to land deals? I am not so sure.

What made the Village Land Act so significant, when it was passed in 1999, was the decentralisation of power over land to the village level authorities, that is, to the people living on the land. By then, Tanzania had witnessed several incidents of land grabbing where corrupt district leaders and district land officers had sold village land without consulting the communities. Some of these shady deals were documented in the reports by the Land Commission, headed by Professor Shivji. If the new system referred to by Mrs. Tibaijuka means that the village authorities will, now again, be bypassed when land deals are made, it is not a step forward. It is the opposite.

Decentralisation and State Involvement

In a newly published FAO Working Paper, Communal Tenure and the Governance of Common Property Resources in Asia, Kirsten Ewers Andersen concludes that the establishment of new, formal tenure institutions at the local level requires a great deal of social engineering. That sounds frightening.

The wording, though not her later conclusion, is in line with much literature within the study of land reform with its strong tradition of state critique. I believe they are wrong, a point I shall elaborate on at the end of this blog post.

Thomas Sikor and Daniel Müller’s article, The Limits of State-Led Land Reform, from 2009 is a prime example of the tradition critical towards the state. It argues that empirical and conceptual insights suggest the benefits of a shift in emphasis from state to community in land reform. They do not, however, take into account that most of the last two decades’ land reforms in Sub-Saharan Africa already aim at strengthening the local level in the management of land. In Tanzania, for instance, responsibility over the administration of land in rural areas has been devolved to the village authorities.

That does not mean that the decentralized administration works in practice. John W. Bruce and Anna Knox’s article, Structures and Stratagems: Making Decentralization of Authority over Land in Africa Cost-Effective, points out that it is expensive to make decentralisation work. They, too, suggest building on existing traditional authorities because traditional authorities are remarkably cost effective in delivering local land administration….

To strengthen the role of traditional authorities, however, should not mean withdrawal of the state though that is often what is implied in the critique of the state. As Kirsten Ewers Andersen points out communities often need support and recognition by the state in order to manage effectively… (page 2). Her observation is in line with one of the main findings from my research, namely that decentralisation of responsibility for the administration of land requires active involvement by outside actors.

It is counter-intuitive, but to make decentralisation work is not merely a matter of state withdrawal. NGOs can do their bit, but their reach is limited to geographically limited interventions. If decentralisation of natural resource management is to work in an entire country, engagement of state authorities is key. Both community and state institutions will have to learn the new rules of the game. Social engineering or not.

Decentralised Land Management: Guidelines for Public Servants

It's all theirs.

I still remember how surprised I was when I overheard a Tanzanian district land officer telling village leaders not inform villagers about decisions related to land. Since then I have come across participatory land use planning which does not involve the locals, court verdicts which are not made public and land deals which are public secrets. It is all a bit confusing for a guy like me, who naively believes that the public servants should serve the people, not the other way around.

The more so because the Tanzanian land acts from 1999 make it very clear that village land is to be managed by the village authorities which include the village councils and village assemblies. The latter are forums where all grown-up persons in a village can participate. District officials are only supposed to provide advice to the villagers.

News stories from the last couple of weeks reveal similar problems within the forest sector. The Guardian, on 30th June, brought the front page story ‘Illegal Logging Rages, Blamed on Corruption’ which reveals that forest officials are involved dubious logging activities in forest reserves in Tanga Region. Villagers are now afraid to report illegal logging because of threats. Two weeks later the Citizen brought two similar stories (read here and here) from Lindi and Kilindi Districts, where the district forest offices have issued logging permits without consulting villagers, and despite the forest conservation project which had been carried out in one of the districts.

It is not only in Tanzania that it is hard to make decentralisation reform work in practice. Senegal has some of the best forest laws in Sub-Saharan Africa, which devolves power to the communities. However, a study by Jesse Ribot has shown that officials in the old forest service find it very hard to change the way they work and hand over power over resources to the local communities.

This brings me to a somewhat overlooked aspect of the reforms aiming at decentralising management of land and natural resources which have been passed in many developing countries the last couple of decades. For good reasons there has been much focus on the community level afterwards. But there has been too little focus on the higher levels within the administrative framework. They also have to change practices if decentralisation is to work. Here are some some guidelines to the public servants who are employed at these upper echelons of the bureaucracy:

- Responsibility over the administration of land has been decentralised to the local level. Get used to it. The communities are the ones to control their land, not you.

- You are still important, but your job has changed. Now, your main work task is to facilitate activities in the communities. Give them the necessary information about the new legal framework and support them in taking hand of their new rights and responsibilities.

- Stop telling the communities what to do with their land. Ask them what they want to do with it instead.