The Theoretical and Legal Foundations of Community-Based Property Rights in East Africa (original) (raw)
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The state of Community Land Rights in Africa
2016
Charles and Pioupare Françoise (Plate-forme de plaidoyer genre, changements climatiques et tenures foncières et forestières or TENFOREST-Burkina Faso), Maixent Fortunin Agnimbat Emeka and Dieuvel Steve Ata (Forum pour la Gouvernance et les Droits de l'Homme or FGDH-Congo), Felicien Kabamba and Serge Ngwato (Conseil pour la défense environnementale par la légalité et la traçabilité or CODELT-DRC) and Rita Uwaka (Environmental Rights Action or ERA-Nigeria). All ACRN members have endorsed this initiative from the starting point. But we are even more grateful to those who took some of their precious time to review the Index, comment on the report and share it in their respective countries. Those include: Samuel Nguiffo and Robinson Djeukam (Cameroon), Protet Ondo Essono (Gabon), Kyeretwie Opoku (Ghana) and Silas Siakor (Liberia). Finally, we thank our honorary African, Liz Alden Wily, who has helped us with the idea of the Index from the beginning and has been a firm supporter of the principle that African land issues should be in Africans' hands and dealt with from local perspectives. Saskia Ozinga, always our supporter, has also encouraged us. ii The state of Community Land Rights in Africa Preface Rural communities all over Africa are deeply concerned. Millions of people do not know whether or not their land rights are secure, especially their rights to their off-farm forests and rangelands. For decades, rural communities have been told that their customary rights do not count as property rights and are therefore not protected. Their lands may be taken at will. Communities are particularly alarmed by the current surge in large-scale land allocations. Will their lands be next? What can they do to prevent their land from being taken? Will their governments support them, or will they say they no land rights because they have no documents to prove ownership? At the same time, rural communities all over Africa are seeing more interest in their plight. They no longer feel so isolated. Many can access the internet, even in remote areas. They read about sister countries on the continent where rural populations have more legal land security than themselves. They want to get engaged in changing the situation in their own countries. The African Community Rights Network (ACRN) comprises around 40 NGOs working on these concerns. They, and the communities they work with, want to know more. They want to be empowered by knowledge. They want facts and figures about other countries to enable them to lobby their policy and decision-makers. They do not want to be fobbed off by claims that the current situation is good for business, and that they should not complain as jobs will result if they surrender their lands to commercial interests. Nor do they want to wait and do nothing for themselves while their governments claim they have matters under control. The African Community Land Transparency Index (ACLTI) has been developed with these needs in mind. First, it institutes a system through which accurate information on the status of the majority of rural land rights across the continent can be collected. The facts and findings will be updated every three years. These will be disseminated widely, including to rural communities. Second, the initiative will help build connections throughout Africa on community land rights through applying the Index and through this will strengthen pan-African commitment to resolved a common shared problemthe weak status of customary/community land rights. Why an Index, and how is it different? This initiative entails several innovations. First, ACLTI is an Africa-owned initiative with its roots in rural communities. ACRN comprises NGOs active on the ground and at the national level in their respective countries. The idea for the Index has evolved through meetings of these NGOs over a period of four years, through their shared analysis of concerns, and through grounded commitment to assist rural communities to better secure their land rights. This is not a donor-driven project. It comes from Africans working in Africa on African concerns with their rural communities. The second innovation is that the Index initiative is geared to involve affected communities from the outset. Much information has been collected on land matters by academics, INGOs and others, but often the local context is weak and the views of those affected are not considered. ACLTI offers a more grounded approach. It involves local organizations with strong connections in rural communities, collecting information on the ground, and sharing with those same communities the findings of more technically complex assessments of the legal status of their rights. A third innovation is that the Index adopts a comparative approach across countries. Realities and This report has been written for ease of reading, and without academic apparatus such as footnotes or references. At the same time, we have made every effort to ensure that it does not leave you feeling disappointed or doubtful. All the information it contains has been carefully checked. However, that does not mean that it is devoid of mistakes or misinterpretations. Therefore your input will be much appreciated, not only because of your ability to initiate and boost reforms, but also because you can help ACRN and its NGO members to increase their knowledge of issues regarding land rights, and about this initiative. Welcome to the first report of the African Community Land Index. We are embarking on an adventure.
The Right to Own Property: Towards a just and fair Compensation in Uganda's Oil Sector
2012
As Uganda prepares for the construction of an oil refinery, there is a need to acquire land both for the building of the refinery and for associated supporting infrastructure like roads. Alongside this lies the Constitutional right not to be deprived of one’s property. Yet the law and policy is flawed; it does not comprehensively provide the procedure and process to follow and does not conform to the Constitution of Uganda of 1995. Worse still, most affected property owners do not understand their rights and the remedial process involved. This policy briefing argues for a fitting legal framework.
Securing community land and resource rights in Africa
Human Rights Documents online
The data and materials for this Guide were collected through a desk-based literature review. Country examples were selected based on available studies of Africa conducted by law and land tenure experts. One study in particular informed this Guide: Rachel Knight's Statutory recognition of customary land rights in Africa: An investigation into best practices for law making and implementation (FAO, 2010). The Guide also benefitted from the field experience of the SSAT project partners in their efforts to support civil society organisations in Central and West African countries engaged in VPA-related law reforms. The Guide was peer reviewed by an editorial committee of experts who are directly engaged in land tenure reform processes in Central and West Africa. Contents Contents 5.1 Ensure compliance with core principles 5.2 Clarify who has rights to land and resources and what these rights include 5.2.1 Recognise and validate existing land and resource tenure rights 5.2.2 Allow customary forms of evidence as proof of customary land claims 5.2.3 Resolve inconsistencies between reformed land laws and laws governing different land-use sectors Foreword Introduction 1 Why is land tenure security fundamental? 2 Legal systems and key legal concepts 2.1 The building blocks of law 2.2 Different legal systems 2.2.1 Customary law 2.2.2 National law 2.2.3 International and regional law 2.3 Legal pluralism: how different systems of law can co-exist 3 Using international and regional human rights laws to secure community land rights 3.1 Key internationally-protected human rights on community land and resource tenure 3.2 Key human rights concepts for securing community land and resource tenure 3.2.1 Does a community have a right to own its land, even though it does not have a written proof of ownership? 3.2.2 Does a community own the natural resources on its land? 3.2.3 Can the government simply take a community's land using powers of 'eminent domain'? 3.2.4 Do decisions on land and natural resources require the Free, Prior and Informed Consent (FPIC) of communities? 4 How to approach law and policy reform processes 5 Five key ingredients for land and resource tenure reform 3 Contents 5.3 Enable rights holders to secure and to use their land rights in relations with others 52 5.3.1 Clarify community rights to keep the land intact, including community rights over apparently 'unused' land 5.3.2 Ensure that community-investor agreements are considered formal contracts 54 5.3.3 Ensure that rental and benefit-sharing agreements are negotiated and agreed to by communities 54 5.3.4 Ensure Environmental Impact Assessments are available and conducted in a participatory manner 56 5.4 Clarify roles, responsibilities and procedures for implementing and enforcing community land and resource rights 58 5.4.1 Making sure customary and State institutions work well at the same time 59 5.4.2 Defining institutional responsibilities and procedures 60 5.4.3 Accessible institutions and procedures 62 5.4.4 Accountable institutions and procedures 62 5.4.5 Ensure political will to implement and enforce community tenure by making sure that State officials have adequate incentives to do so 68 5.5 Enable rights holders to claim, monitor, enforce and enjoy their land and resource rights 70 5.5.1 Participation in decisions that affect community land and resource rights 71 5.5.2 Access to justice 71 5.5.3 Access to Information 71 5.5.4 Scrutinising laws and making them effective 73 6 Opportunities for legal change and how to use them 76 6.1 Opportunities presented by VPAs 76 6.1.1 VPAs and tenure reform 78 Land that is possessed, occupied and used by communities according to 'customary law' is the most common system of land and resource ownership in Africa. Customary law is the framework of rights, rules and responsibilities based on community customs and practices, governing ownership and management of a community's lands, territories and resources. Customary land includes all land areas used and managed by communities in this way, including farms, forests, rangelands and wetlands. Despite the prevalence of customary law, the land and resource rights of most communities are not adequately recognised or protected by national laws-they lack security of tenure. This insecurity was exploited by colonial administrations, and has yet to be properly addressed by many postindependence governments in Africa.
‘The Law is to Blame’: The Vulnerable Status of Common Property Rights in Sub-Saharan Africa
Development and Change, 2011
The context of this article is the surge in large-scale land acquisitions of African lands by local and foreign investors for commercial food, livestock, oil palm and carbon trading purposes. Involuntary loss of rural lands at scale is not new to Africa's majority rural poor, nor is it driven by a single factor. Historically inequitable land relations within communities, compounded by a century of capitalist transformation, take their toll. This study argues, however, that the weak legal status of communal rights is the most pernicious enabler in their demise, allowing governments to take undue liberties with their citizens' lands, and particularly those which are unfarmed and by tradition held in common. While international acquiescence to abusive domestic law helps entrench the diminishment of majority land rights, the domestic laws themselves are principally at fault and necessarily the target for change. This legal vulnerability is explored here through an examination of more than twenty African land laws.
2014
Introduction Objective and structure Methodology and conceptual framework Concepts, meanings and definitions The chain of justice analytical framework The trajectory of women's land rights in Uganda and the place of CSOs CSO's synthesis PART II Enabling women's (widows) access to justice at the Administrator General's Office through information provision Uganda Women's Media Association (UMWA): Margaret Sentamu-Masagazi and May Nakyejwe Legal documentation and a strategic and practical approach towards land justice Microjustice (MJU) Uganda: Fredrick Walulya Uncovering and documenting customary rights in Lango, Teso/Kumam and Acholi Land Equity Movement Uganda (LEMU): Judy Adoko Women's land rights: promoting security of tenure and improving quality of life Uganda Land Alliance (ULA): Annociata Kampire Women as agents of change and societal transformation FIDA Uganda: Sarah Kerwegi PART III Lessons learned and perspectives Lessons learned Key messages for CSO's and policymakers Perspectives Bibliography Annexes Annex 1. Descriptions of participating organizations and co-authors 5 Executive summary to contribute to developing effective and context specific strategies to address gender, rights and land justice failures. Conceptual and analytical framework Different concepts and definitions such as custom, culture, patriarchy, ownership and even rights are used in literature, policies and laws-and even by international organizations and CSOs-in different ways, but often with fixed meanings. Yet, there is no universal agreement on the actual meaning of most of these concepts. We would like to contextualize existing terms and understand the nuances in the use of these concepts by different organizations. Thus we focus on the institutions women and men may be confronted with: on dispute resolution and land administration. The contradictions and gaps that exist between these two institutions sometimes derive from their own understanding and interpretation of 'fixed' concepts. The chain of justice framework uses a gender and rights based approach to understand injustices. By doing so the framework explores the different failures of recognition and redistribution, and their root causes (Fraser and Honneth, 2003), which women and men experience in the process of claiming and realizing their rights in the justice system. In Uganda, this process is marked by a plurality of systems which poses numerous obstacles, as well as opportunities, to manoeuvre (mostly within the justice system) to redress injustices. Many of the obstacles poor and marginalized people meet are beyond institutions and the law. They relate to the position and role of the people involved, and the social relations between the different systems, the beneficiaries and the institutions themselves. These factors affect people's ability to access justice before, during and after an injustice (dispute, conflict) occurs. KIT calls this process the 'chain of justice'. By using the chain of justice framework to look at different case studies, the CSOs have identified root causes of women's land rights failures and discussed whether these have been addressed by their interventions and how. Furthermore, this framework provides an overview of interventions along the chain of justice which could potentially contribute to strengthened collaboration and therefore more effective protection of people's rights to land. The organizations, their intervention and outcomes The five CSO contributors of this document hold vast knowledge which allows for a more focused analysis using a common analytical framework on gender, rights and access to justice. Representatives from each CSO have provided an analysis of their interventions. Enabling women's (widows) access to justice at the Administrator General's Office through information provision: Uganda Women's Media Association (UMWA) Margaret Sentamu-Masagazi, Executive Director of UMWA, and Program Officer May Nakyejwe, present a thorough reflection on UMWA's work to support women's access to justice, by bridging gaps between the Office of the Administrator General and women (widows in particular) whose rights to land have been neglected or eroded. Their approach and methodology relies mainly on the use of media as a useful mechanism to provide women with information and reach the often unreachable. 3 UMWA, ULA, FIDA Uganda, CBR and KIT. PART I 5 ULA contributed to this initiative from 2012 to 2013. At the end of 2013 ULA began a process of re-organisation which resulted in the creation of the Women's Land Rights Movement as a separate institution directly supported by ULA. From 2014 onwards the Women's Land Rights Movement will take over from ULA as the main collaborator in this initiative. 6 The organizations were previously identified based a KIT literature review which took place in January and February 2012 and a consequent scoping mission conducted in March 2012 when KIT met with several CSOs and other stakeholders working on land rights and gender in Uganda. See the Annex for a short description of each of the participants' organisations.
A guide to property law in Uganda
2007
This guide has been written as an information resource for government officials, community leaders, humanitarian aid workers, judges, lawyers and others whose responsibilities include upholding land and property rights in Uganda. It outlines the main provisions of Uganda’s constitutional and legal framework and the protection these provide to property rights. It briefly outlines the historical background to existing land tenure relations, describes the constitutional provisions relating to land in the 1995 Constitution and sets out the main provisions of the Land Act 1998.
Understanding the evolution of property rights to land in Uganda, 1900-2010
2014
It is a nearly established fact in the literature on economic growth and development that institutions, particularly well – defined and enforced property rights are vital for economic growth. Accordingly, knowing the right institutions to establish and understanding how to secure them is important to any country seeking economic advancement. Yet even among institutionalists, there are wide ranging controversies regarding the definition of institutions, how to identify the right institutions and obtain them. Further, there exists much uncertainty regarding the interaction between formal and informal institutions in engendering the de facto institutional environment. Existing research and practice do not shed much light on the immense challenge of transforming bad institutions into good institutions.This study investigates the evolution of property rights to land in Uganda during the period 1900 to 2010 in order to understand why, when, in what direction, and how property rights emerg...
International Journal on Minority and Group Rights, 2020
Despite the constitutional and legislative guarantee to land in Uganda, customary land tenure seems to suffer from inadequate legal protection, a situation that is analogous to that in the colonial and the immediate post-independence era. This article critically examines the normative content of the constitutional and legislative right to land in Uganda and argues that the customary land right is not adequately protected as the other categories of land tenure, in which land is owned and legally recognised in Uganda. It also serves to illustrate that the inadequate protection of customary land rights is analogous to the situation in the colonial and immediate post-independence era, and that weak customary land rights could be susceptible to the occupants’ deprivation during land grabbing. There is a need to address this situation in order to holistically ensure and promote an effective land governance regime that respects and protect customary land tenure.
Securing land rights for the poor in Africa — Key to growth, peace and sustainable development
2006
This paper has been prepared for the Commission on the Legal Empowerment (Legal Empowerment) of the Poor.. It argues for a particular focus on securing land and property rights for the poor in sub-Saharan Africa. It presents the key challenges faced in achieving such an objective and outlines proposals for action, combining the strong body of existing work underway across the continent with the added energy generated by the current Legal Empowerment initiative.
Walking the Talk: Are Land Evictions in Uganda in Line with Human Rights Standards?
Social Science Research Network, 2009
International and selected national standards in respect of land evictions 3.1 Introduction 22 3.2 Position of international law in Uganda 22 3.3 International instruments 3.3.1 International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights 23 3.3.2 Basic Principles and Guidelines on Development-Based Evictions and Displacement 26 3.4 National standards in South Africa 29 3.5 Conclusion Chapter 4 Causes of evictions and case studies on land evictions in Uganda 4.1 Introduction 37 4.2 Main causes of land evictions 37 4.3 Land evictions by the State 4.3.1 Benet community eviction 40 4.3.2 Kaweri Coffee Plantation 42 4.4 Evictions by private individual 4.4.1 Kirubo-Garilaya eviction 4.5 Analysis of case studies 4.6 Conclusion Chapter 5 Conclusion and recommendations 5.1 Conclusion 49