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"A prominent socio-political trend in sub-Saharan Africa at the turn of the century is the development of new land tenure statutes. In general, these are intended to both reflect and promote changing property relations with strong directions towards increasing a market in land and to give statutory form to unregistered rights. Most of these rights arise and are maintained through customary regimes. In the process governments are being forced to determine the legal future of common property, a central construct of customary tenure. These include untitled commonage widely existing throughout the rural areas of Africa, often deemed 'public lands' with the implication of open access inherent. Attention is also being directed towards those conservation estates which governments have steadfastly secured to themselves [Forest and Game Reserves].
"In the meantime, a less pronounced series of adjustments are occurring in the laws of governance and state-people relations, with a trend towards further devolution and the strengthening of institutions at the local level. Frequently this is being driven or supported through the crafting of new Constitutions towards greater democratisation on the one hand and more profound recognition of social and property rights on the other. Emerging empowerment of local communities, beginning to be endowed with more governance powers, is playing an important role, helping to shift the tenurial focus from state to people, from centre to periphery. This paper examines these socio-legal developments with a view to assessing how rural commons in East and Southern Africa are being affected. The study draws upon tenure changes in twelve states: Kenya, Tanzania, Uganda, Malawi, Mozambique, Zambia, Zimbabwe, Namibia, Botswana, Swaziland, Lesotho, and South Africa.
"The conclusion drawn is that, intentionally or otherwise, rural commons in the region are gaining a great deal more recognition than was anticipated during the 20th century Alden Wily, Reconstructing the African Commons, IASCP Eighth Biennial Conference, Indiana, and will become a prominent property construct during the new millennium. The gain derives mainly from resigned recognition of the persistence of customary rights in land, despite decades of largely conversionary tenure processes aimed to extinguish customary regimes, and the need to now provide for these rights in national law. In the process, there is growing recognition of the utility of certain customary norms in tenure, not least being the capacity to hold property in common. For the fact remains that a good number of estates in land -- and forests, wildlife and pastoral range prime among them -- remain as unsuited to subdivision and individualisation in the 21st century as they were in the 20th century. Nor has appropriation of these properties by the state has not proved as successful as anticipated and development strategies look increasingly to the local level for reprieve.
"Through these factors, notions of tenure are themselves undergoing transition at the turn of the century. A central development is the emergence of a new statutory tenure forms which permits groups of people to hold property in common in registrable ways and in ways which new laws are beginning to suggest as equivalent to entitlement of individually-owned estates. This development is the focus of this paper. The paper closes with a reflection of these changes in one prominent sphere of common property in the region; forests and woodlands. New forest law, it is shown, is beginning to provide for community-based tenure of these resources. This realised in a highly tangible way the quite dramatic change in fortunes of a long-existing practice in the continent, the right to hold estates in common." |
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