Social, Political and Equity in Land Tenure

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Land tenure in Africa is complicated by overlapping legal regimes. The underlying customary tenure, which is essentially ill defined in terms of conferring ascertainable rights in written form and clearly marked boundaries is often undermined by
  1 F. Ssekandi _____________________________________________________________________________________________ S OCIAL , P OLITICAL AND E QUITY A SPECTS O F L AND AND P ROPERTY R IGHTS  P RESENTER : F RANCIS M. S SEKANDI 1   “  Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property.” 2  Locke Introduction. Land is a valuable commodity. Its fertile soil is the source of agricultural produce for our sustenance. The vast savannah grasslands provide fodder for our cattle. The mineral wealth beneath provides revenue and the rivers and lakes on it, provide both water to drink and fish to feed us. The forests produce timber and firewood. The control and use of this vast resource has been at the center of great political and philosophical debates. History informs us that land has also been at the core of most human conflicts, both minor and great. Land is and has been at the center of the ancient conflict in the Middle East. A Land boundary dispute pitted Ethiopian and Eritrean allies against each other resulting in great loss to life and human suffering, and it is land that has turned Zimbabwe into a pariah State. How we handle the burning problems of land, therefore, is important for present and future generations. Of Land, Ownership and Property Rights It is difficult to discuss the question of land, property rights and equity without thinking of the tragic events going on in Zimbabwe, where the right to property – a human right – claimed by the White farmers is seen to be threatened, and the plight of the landless peasants of Zimbabwe lends justification to ongoing expropriations of land, as a kind of restitution. Various reports indicate, for example, that as far back as 1965, there were 7,800 White farms (held by 1% of the population) from 2000 to 50,000 acres occupying nearly half of the available agricultural land area and the bulk of the fertile land. 3  And, yet one cannot but 1  Adjunct Lecturer-In- Law, Columbia University Law School. Former Justice of Appeal (Uganda) and General Counsel, African Development Bank. 2  Locke, Treatise of Government. 3  Downs and Reyns: “ Land and Society in Contemporary Africa ” , 1988; Downs and Reyns also report that in Kenya, “ one-tenth of a percent of the country ’ s farms occupy 14 percent of the arable land; 2.4 percent of the farms occupy 32 percent of the land. In the country as a whole, 54 percent of the holdings contain less than one hectare, and 30 percent under half a hectare; at the other end several hundred holdings exceed one thousand hectares and some exceed twenty thousand. ”  see also: Martin Adams, Sipho Sibanda and Stephen Turner “  Land Tenure Reform and  Rural Livelihoods in Southern Africa, in Evolving Land Rights, Policy and Tenure in Africa, Edited by Camilla Toulmin and Julian Quan.  Social, Political and Equity Aspects of Land Property Rights 2 _____________________________________________________________________________________________   fear that the illegal occupation of White farms by ex-freedom fighters was as much a rebellion against past colonial policies, which dispossessed the Black population of their land on the defeat of Chief Lobengula, as well as Mugabe ’ s own misdirected distribution of purchased land for white farmers after independence, to benefit the wealthy and privileged class, á  la Kenya. Early land reforms, in Latin America and Asia were ideologically driven. In Latin America, the reforms were egalitarian, in order to address a situation a meager part of the population, often times foreigners, occupied large estates, constituting the bulk of available agricultural land, taken away for peasant farmers. In Asia, on the hand, the reforms were intended to benefit the tillers of land, who often worked rented fields from wealthy landlords. Land Reform is needed in Africa and is long overdue. It is true that certain legislative measures have been adopted in some of the African countries to institute systems of individualization, registration and titling, but meaningful land reforms will not be complete until a more equitable system of land distribution is put in place and the traditional tenure is rationalized and given legal effect. The Idea of Individual Property In a most unusual submission, the Attorney-General of Tanzania, in Attorney General v. Lohay Akonnay and Joseph Lohay, 4  contented that the taking of land held under customary tenure without compensation, by the Government, was not a violation of the Bill of Rights provision under the Constitution, guaranteeing the right to property, because land held under customary tenure was not ‘ property ’ . 5  For this proposition, the Attorney General relied on an old Privy Council decision, in Amodou Tijani v. The Secretary, Southern Nigeria, where Viscount Haldane, quoted with approval the findings of Rayner C.J in the Report on Land Tenure in West Africa, as follows: “ The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is sometimes called the owner . 6    In a similar vain Monique Caveriviere and Marc Debene in their book “ Le Droit foncier S é n é galais ”  assert of les syst é mes coutumiers ” : “  La notion d ’ exclusivit é  consubstantielle au 4  [1995] T.L.R. 80 5  Tanzania had no Bill of Rights in the Constitution until the early ‘ 90s and practices such as Ujaama, under which villagers were dispossessed of property without compensation for decades, suddenly became the subject of Constitutional challenge. 6  [1921] 2 A.C. 399, see also “ Le Droit Foncier S é n é galais ”  by Moniqe Caveriviere and Marc Debene.  3 F. Ssekandi _____________________________________________________________________________________________ droit de propri é t é  etait inconnue. Il est d ’ usage d ’ insister sur le choc des cultures que traduisit notamment l ’ introduction de la propri é t é  fonci è re individuelle. ” 7   The Court of Appeals of Tanzania rejected the Attorney General ’ s submission made in the Lohay Akonaay ’ s Case (1995). Writing for the majority, the Chief Justice stated: “… Article 24 of the Constitution of the United Republic of Tanzania recognizes the right of every person in Tanzania to acquire and own property and to have such property protected. Sub-article (2) of that provision prohibits the forfeiture or expropriation of such property without fair compensation …  It is the contention of the Attorney general, … that a ‘ right of occupancy ’ , which includes customary rights … is not property within the meaning of the Constitution. … We have considered this momentous issue with the  judicial care it deserves. We realize that if the Attorney General is correct, then most of the inhabitants of Tanzania mainland are no better than squatters in their country. It is a serious proposition. In the present case, for the reasons we have given earlier, we are satisfied that Sections 3 and 4 which provide for the extinction of customary rights in land but prohibit the payment of compensation with the implicit exception of unexhausted improvements only are violative of Article 24(1) of the Constitution and are null and void ” : Nyalali C.J. 8    The dispute over the interpretation of the word ‘ property ’  as reflected in the discussion in the Akonaay Case, is not semantic but fundamental. The Right to property, is enshrined in Article 17 of the Universal Declaration of Human Rights, in absolute terms. 9  It provides:  “ Everyone has the right to own property alone as well as in association with others. ”    “ No one shall be arbitrarily deprived of his property . ”  This notion of the absolute right to property is founded on the ‘ conception bourgeoisie ’ , prevalent in western Europe in the eighteenth and nineteenth centuries, glorifying the virtues and rights of the individual, a period generally known as the period of enlightenment that gave birth to the French Revolution. It still prevails as the cornerstone of capitalism and the free market. In this sense ‘ property ’  is defined as ” the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude every one else from interfering with it. ” 10  This definition, however, is not quite borne out by a reading of some of the works of the philosophers of the time. For example, the notion of the right to ‘ property ’  resulting from one ’ s labor, as propounded by Locke in the extract at the head of this paper, in his First Treatise on Government, had two limitations: –   7  Le  Droit foncier   S é n é galais: Monique Caveriviere and Marc Debene, paragraph 36. 8  [1955] T.L.R. 80 9  Universal Declaration of Human Rights adopted and proclaimed by the United Nations General Assembly Resolution 217 (III) on 10 December 1948. 10  Black  ’ s Law Dictionary.  Social, Political and Equity Aspects of Land Property Rights 4 _____________________________________________________________________________________________   the one relating to ‘ sufficiency ’ , the other to ‘ spoilage ’ . According to Locke, labor could supply the basis for property rights “ at least where there is enough, and as good left in common for others. ”  And, Lockean rights to land are also limited by the notion of waste: in Locke ’ s view, a person is entitled only to such land as he or she can use without spoilage. The value of the Labor theory of property rights in the context of the Akonaay Case, is the assertion by Locke that Labor “ puts the difference of value on everything ” , being responsible for “ 9/10 ”  and perhaps “ 99/100 ” , of the value derived from land. By Locke ’ s account, therefore, so great is the value added, and so inseparable is it from the object, that property rights as to the value added and the object itself vest in the individual supplying the labor. This theory alone justifies the finding of the Chief Justice that compensation that is limited just to the improvements over land violates the standard of just compensation and would be contrary to the Constitution. The question that arises from the differing perceptions of ‘ property ’  is whether justifiable limits can be imposed on the freedom to acquire and dispose of property, even where such freedom results in other members of the community remaining, in this case, landless. And, where limits may be imposed, is it legitimate by law to adopt redistributive policies to achieve equitable distribution of vital resources, such as land. In brief, to what extent can market forces alone be the only determinant in the allocation, use and disposition of land rights. These questions go to the very core of modern Land Law Reforms and will be examined here in the context of the history of land management arrangements carried out during and after colonial rule. In this context, the African [Banjul] charter on Human and People ’ s Rights attempts to establish a balance between the absolute right to property and the need to achieve equity in the manner of access and distribution of such property for the common good. Articles 13(3) and 14 provide: Article 13 Every citizen shall have the right of access to public property and services in strict equality of all persons before the law. Article 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. ”   Colonial Land Policies The notion that customary tenure admitted of no individual ‘ property ’  became a convenient tool of the colonialist. The protection of the right to individual property known under most European legal systems did not extend to the ‘ usufruct ’  rights or ‘ communal ’  rights as the customary tenure was conceived. Instead of the individual, the Chief or Headman was said to posses the ‘ seigneurial ’  right to communal property. He could, however, conveniently transfer it, or sell it, upon requisition for a public purpose, in  5 F. Ssekandi _____________________________________________________________________________________________ accordance with the eminent domain ordinances, which called for acquisition of native lands upon ‘ payment of compensation ’ . The compensation to be paid, however, extended only to produce and constructions on land, and did not include the land itself, under the theory that such ‘ owners ’  had only an ‘ usufructuary right ’ . The compensation did not also extend to unoccupied land, as this was ‘ Crown Land ’ . It covered only occupied and used land and was limited to the value of developments on the land. These were the principles enunciated in the Tijani Case, the often-quoted decision of the Privy Council on the nature of African Customary Tenure. 11  In Tanzania, just as in all other former British Colonies and, indeed, all former colonies in Africa, land and rights in land were inseparable from the policy and political objectives pursued upon colonization. In order to acquire full sovereignty over a given territory, it became necessary to devise the concept of binding treaties and agreements with supposed ‘ Kings ’ , where possible, for conveyance of sovereignty over a given territory, by grant or conquest. This conveyance had the effect of ceding control over all ‘ unoccupied ’  lands to the Crown as ‘ Crown Land ’  under the British and, in the former French territories, a similar effect was achieved by application of Article 539 of the Code Civil, which provides, most succinctly: “ Tous les biens vacants et sans ma  î  tre, et ceux des personnes qui d é c è dent sans h é ritiers, ou dont les successions sont abandonn é es, appartiennent au domaine public ” . Apparently, only registered land was considered ‘ owned ’ , and land held under customary law was declared ‘ vacant et sans ma  î  tre ’ . The effects of these concepts were to permit the colonial administration to grant titles to large tracts of land for commercial agriculture and other uses to settlers or entrepreneurs, to generate revenue. The idea of ‘ individual ’  property to land other than by title from the Crown became a problem as land occupied by ‘ natives ’  became desirable for further appropriation. In introducing the concept of ‘ eminent domain ’ , with its attendant requirement for just compensation, the question arose whether having acquired sovereignty over the territory, the occupation by the natives had such value as was worth compensating in the same way as individual ‘ property rights ’ . The Privy Council addressed this question squarely in 1921, in a case arising from Nigeria concerning the status of the territory of Lagos. 12  The Privy Council held that the idea of ‘ estates ’  in fee simple, being the most comprehensive estate in land recognized by the law in England, is not recognized outside of England, and thus the Crown having acquired the root title purportedly by grant or conquest from the putative ruler. Accordingly, all other subordinate rights in property did not qualify as individual “ ownership ”  in the Austinian sense; that is, ownership, which is “ indefinite in point of use, unrestricted in point of disposition and unlimited in point of duration ” . In some areas, however, chiefs whose function 11  See also Sakiriyawo Oshodi v. Moriamo Dakolo and Others [1930] A.C. 667 12  Amodu Tijani v. The Secretary, Southern Nigeria [1921] 2 A.C. 399
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