“Le Ghana, la Tanzanie, le Mozambique, l’ Ouganda et le Soudan du Sud protègent mieux les droits fonciers des communautés dans leurs lois foncières”
Liz Alden Wily est une économiste indépendante spécialisée dans les questions de propriété foncière. Elle mène des recherches au niveau mondial sur les questions foncières et les ressources naturelles principalement dans les Etats post-conflits. Liz est également auteure de plusieurs publications.
- What is the meaning of “community land rights”?
Community land rights means rights to land and resources that are defined and upheld by rural communities. Usually, these rights are derived from traditions. Therefore community land rights are also often called ‘customary land rights’.
Community lands are the lands and resources that are subject to community based jurisdiction (i.e. subject to customary norms). Note that ‘customs’ change as conditions change. This means that the traditions or norms that a community follows today to allocate, regulate, and uphold land rights may be different from the norms that guided land matters in the past. For example, many living communities no longer follow traditional practices that excluded strangers or women from being owners of land rights. It is also more common today for ‘customs’ to allow families to ‘sell’ houses and farms they have developed. Community practices may also take more account of what the National Constitution and other laws say about land rights. What does not change in customary (or ‘community based’) tenure systems is the authority of the community. That is, the rules may change, but the authority of the community remains.
- Which countries best protect community land rights?
Ghana, Tanzania, Mozambique, Uganda and South Sudan are some of the countries which best protect community land rights in their new land laws. This is because they all have national laws which state in black and white that community land rights (or ‘customary land rights’) are property rights, and have the same force and effect as land rights granted in the form of titles granted by the government. They also state that this is upheld even when the owner of the right (e.g. a family or a community) have not got a certificate or other evidence of the right. If government or another person wants their land, they must prove that the owner of the right does not own the land. The community is likely to confirm that the right exists. These ‘best practice’ countries alongside others also make it possible for right holders to get such certificates free on application and from the most local government authority.
- What is the problem in countries community land rights (customary land rights) are not recognized?
Mass insecurity of tenure results. This means that customary landholders get no compensation when they are evicted from their traditional lands when government wants these lands for a public purpose. Also it means their land is treated as unowned so elites can apply for titles to those lands and become the legal owner. Up to half a billion Africans around the continent are still in this situation of acute land vulnerability.
- What do you say to governments which argue that the economic development of their countries relies on large-scale land use by multinationals?
Large-scale land use is not always bad. When the development is environmentally sound and when the income and side benefits are shared among citizens, then it is to reasonable to welcome such developments. Rural communities also badly need investments to build their land-based economies and to increase their incomes. The problem is that this can never be fair or lasting if it is the result of mass dispossession. Or where the community is not told they should be satisfied with a few meagre side benefits like a road, a bridge or a school, which they should have a right to anyway.
Very satisfactory results for everyone occur when a government recognizes the land as already owned by the community and helps the community to assess if the investment is of benefit to them, and how it should proceed. The community, not government will then become the lessor and receive the rent, and benefits. If it makes a lot of money, it will pay tax on its profits to the government, like all other big income earners should. In many countries, it is now common for the community to be a major shareholder in the development, where it decided the development will last, will not destroy other aspects of their livelihood, and will not ruin the environment. As a shareholder, they have a direct say in how the development proceeds. Government also gains from the peaceful society that results. People never forgive unjust land takings by government. This is one of the major causes of civil conflict and often civil war.
- Why is it important to protect community rights?
Over 90% of rural Africans (and up to 2+ billion people worldwide) own rights to lands through community-based systems (“customary land tenure”). Their national economies cannot develop properly without all citizens having secure rights to these lands. Insecure tenure by the rural majority is a major impediment to lasting economic growth, peaceful society, and good governance. One of the most destructive forms of bad governance is to fail to respect the land rights of your citizens. For as long as a government fails on this, it cannot make the progress it thinks it should make. Nor can it secure the best kind of investors, who really invest in the country. Instead they come only to see if they can make a quick buck before the local population rebels.
- Given commercial pressure on the arable lands of African countries, what do you thik the future holds for rural communities?
Greed and mis-governance have got a grip on most African economies. Land has more and more value and government officials and politicians are less and less willing to recognize that the lands are already owned on the basis of customary tenure. However, rural populations are becoming much more aware of how wrong this is, and they will become more and more demanding of their rights. They can also see that other rural populations have been recognized as landowners. One of the important roles of civil society today is to help policy makers see that investing in smallholder agriculture is a very strong and fair way forward. Why not help one’s own citizens to develop their lands? What better way can there be to a strong and modern agrarian society?
Entretien avec Mireille Tchiako