Essays in African Land Law

Robert Home

Description

The importance of land law for the rule of law in Africa can hardly be questioned. Population pressures and competition over access to land and resources generate much conflict, complicated by the historical legacy of colonial laws and land-grabbing, and by post-independence land law reforms. The international development agencies increasingly fund projects related to land law, policy and administration, with the Food and Agriculture Organisation (FAO) and Habitat each maintaining specialist land tenure units, and the AU and SADC formulating land policy frameworks.This book on themes in African land law is one of a pair, the other presenting local case studies. It is not so easy to achieve an overview, nor to find specialist writers in the field. Land law has traditionally been regarded as a difficult subject to teach, and specialists are fewer in the law departments of African universities than one might expect. A quick scan of the index to fifty years of the Journal of African Law reveals less than one article a year with ‘land’ in the title, the most popular topics being the Nigerian Land Use Decree and tribal tenure in Botswana. Africa is less well served than other continents by specialist property law networks, and less represented at international academic conferences in the field. While Stellenbosch University in South Africa has a programme training academic land law specialists, that is an isolated initiative. The search for contributors to these books produced more non-Africans and those of the African diaspora than Africans working in their home country. Nor is African land law the exclusive preserve of lawyers, so other professions have represented, such as land surveyors, land economists and planners, as well as those working in NGOs. The list of authors thus includes a Cameroonian based in the USA, two Ghanaians and a Zimbabwean in UK academia, and within Africa a Tanzanian in Botswana and a Zambian in Namibia. With much research coming from outside the continent, non-African authors include three British, one French (geographer), one French-Canadian, one Texan (geographer), and one Dutch (land surveyor).The two books attempt a balanced regional and thematic coverage. The table below presents basic statistics on the countries discussed, giving some pointers to their diversity, in population size, land area and population density, but a dozen countries from a continent that has over fifty inevitably means omissions.About the editor:Robert Home is Professor in Land Management at Anglia Ruskin University (UK), and the books are part of a series on the rule of Africa, supported by the World Bank.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2011
• Nombre de lectures: 2
• EAN13: 9781920538002
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

ESSAYS IN AFRICAN LAND LAW

Robert Home (editor)

2011

Essays in African land law

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: ABC Press Cape Town

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights Cover photograph: Land Art, SurfGuard on Flickr

ISBN: 978-1-920538-00-2

© 2011

THE W ORLD BANK Washington, D.C. Essays in African land lawforms part of the Rule of Law in Africa Project funded by the World Bank

TABLE OF CONTENTS

PREFACE CONTRIBUTORS ACRONYMS AND ABBREVIATIONS INTRODUCTION ACKNOWLEDGMENTS Perceptions of legal and geographic clarity: 1 Defining international land boundaries in Africa John W Donaldson Towards a pro-poor land law in Sub-Saharan Africa 2 Robert Home International law and land rights in Africa: 3 The shift from states’ territorial possessions to indigenous’ people’s ownership rights Jérémie Gilbert and Valérie Couillard Indigenous peoples and ancestral lands: 4 Implications of theBakwericase in Cameroon’ Ambe J Njoh Not just another ‘custom’: Islamic influences on 5 African land laws Siraj Sait TheHumweprinciple: A social-orderinggrundnorm 6 for Zimbabwe and Africa? Ben Chigara Gender perspectives of property rights in 7 rural Kenya Leah Onyango, Anne Omollo and Elizabeth Ayo Legal challenges of land held in trust for orphans 8 and vulnerable children (OVCS) in Kenya George Anang’a; Colleta Otieno and Awuor Oluoch Compensation for compulsory acquisition of land 9 for mining activities in Nigeria: The search for a viable solution’ Oludayo Gabriel Amokaye

CONCLUSION BIBLIOGRAPHY

iii

v vii ix xi xv

1

25

47

69

91

113

135

155

171

189 191

Table 1: Table 2: Table 3:

Table 4:

Table 5:

Figure 1: Figure 2: Figure 3:

LIST OF TABLES

Basic statistics by country Humwein a selection of African States Type of farming in relation to the European and African zones (1962) Land Laws applied to different land management systems in Kenya Land Statutes Marital status of women in the Nyando river basin

LIST OF FIGURES

Land classification in Kenya Land ownership in the Nyando river basin? Ways through which women acquire land in the Nyando basin

iv

x 118 129

142

149

141 147 148

PREFACE

Anglia Ruskin University has a growing number of students – both undergraduate and postgraduate – from the African continent, and UK students of African descent, and is proud to promote research that may aid African development. Professor Home has long experience of research on land issues in Africa. Since joining the University in 2002 he has managed a research project for DFID on land titling, which resulted in the book Demystifying the Mystery of Capital (2004), and undertaken research and professional consultancies in several African countries. He was invited by the University of Pretoria to edit these two books on African land law, as part of a publishing project on the rule of law sponsored by the World Bank, and the University is pleased to be associated with the undertaking.

Professor Alan Sibbald Deputy Vice-Chancellor

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CONTRIBUTORS

Oludayo G AMOKAYE(LLB (Hons), LLM (Lagos), is a Doctoral Candidate at Obafemi Awolowo University and Senior Lecturer in Property and Environmental Law at the University of Lagos, Nigeria.

George ANANG’Ahas worked for over 20 years with community groups and international NGOs facilitating and writing on processes and platforms through which young people can acquire knowledge and skills in order to be able to advocate on issues that are important to them. He holds a Master of Arts Degree in Development Studies (University of East Anglia). He is currently Adviser to Development Education and Child Participation at Plan International UK.

Ben CHIGARAis Research Professor of International Laws at Brunel University, West London. He also serves as a jurist consultant in the areas of international trade and foreign direct investment law, constitutional reform and WTO. In addition, he is a lecturer/guest lecturer in many other universities.

Valérie COUILLARDis a human rights lawyer with the Forest Peoples Programme. She specialises in indigenous peoples’ rights as well as gender and land rights. She worked at the African Commission on Human and Peoples’ Rights (2005-2007) and practiced criminal law and human rights law in Canada (1999-2005). She holds a Master of Laws from the European Academy of Legal Theory (Brussels 2004). She sits as an expert member of the African Commission’s Working Group on Extractives Industries, Environment and Human Rights Violations in Africa.

John W DONALDSONMA (Durham), PhD (Durham) is senior research associate at the International Boundaries Research Unit, Department of Geography, Durham University.

Jérémie GILBERTis a Senior Lecturer in Middlesex University (United Kingdom). He has published various articles and book chapters on the rights of indigenous peoples, looking in particular at territorial rights for indigenous peoples. His latest monograph isIndigenous Peoples’ Land Rights under International Law (2007). He regularly collaborates with the Forest Peoples Programme and he is a member of Minority Rights Group advisory board on the legal programme.

Robert HOME(MA, Cantab; PhD, London; DipTP, Oxford Brookes) is Professor in Land Management at Anglia Ruskin University, UK. His research interests are planning history and land management, with a strong international and African focus. His PhD was on the influence of colonial government upon Nigerian urbanisation. He has published books on British colonial town planning, land titling in Africa and the Caribbean, and planning regulations. He has also managed higher education link programmes with South Africa and Zambia, undertaken consultancies in several African countries, and supervised PhDs on African land topics.

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Ambe NJOH(PhD, London) is Professor of Urban & Regional Planning, University of South Florida, USA. He has written 8 books and published more than 50 articles in peer-reviewed journals and books. He was one of the contributors to the UN ‘Global Report on Human Settlements 2009: Planning Sustainable Cities’.

Awuor OLUOCHholds aBA in Anthropology (University of Nairobi) and is currently pursuing an MA in Anthropology (Maseno University). Ms Oluoch is a research officer with the Kenya Medical Research Institute, attached to the ITM (Institute of Tropical Medicine-Belgium) Youth Interventions programme. She has conducted ethnographic research and participated in applied medical research work in rural western Kenya.

Anne OMOLLOis an Assistant Lecturer at Maseno University, Kenya. She holds an LLB and LLM Degree in Environmental & Natural Resources Law, University of Nairobi. She is also a partner at Anne Omollo & Kowinoh Advocates Co.

Leah ONYANGOholds a PhD in Physical and Urban Planning (Maseno University). She is Senior Lecturer at Maseno University and previously occupied several positions in the Ministry of Lands. She is currently involved in collaborative interdisciplinary research and development and extensively involved in community work specifically in the areas of environmental conservation and youth programmes.

Colleta OTIENOholds a Master of Arts (Maseno University) Degree. She is currently Deputy High School Principal in Kisumu, Kenya. She has researched on issues facing vulnerable children and worked with institutions providing support to children for over 20 years.

Siraj SAIT(MA, London; LLM, Harvard), is Reader in Law at the University of East London, United Kingdom. He previously worked as State Public Prosecutor in Tamil Nadu, India and as legal officer for UN-HABITAT, Nairobi, Kenya.

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ACRONYMS AND ABBREVIATIONS

AALS ACHPR AIDS AU AUBP BLCC CBD CBO CDC CEFRD

CEMIRIDE CLEP CRC DFID DRC EAC EDPRS EEBC FLTS FPIC GIS GLTN

HIV IACHR ICC ICCPR ICISS ICJ ICSID ILO LAC LPA LRO LRP LTO MCC MDG MINITERE

NGO NHAG NIE OAU OHSIP OLL OTC OVCs SADC SDFN SERAC SFT SG SWA SWAPO T&CPA TCCF TLA UK ULML

Affirmative Action Loan Scheme African Commission on Human and Peoples’ Rights Acquired Immune Deficiency Syndrome African Union African Union Border Programme Bakweri Land Claims Committee Convention on Biological Diversity Community-Based Organizations Cameroon Development Cooperation Convention on the Elimination of all Forms of Racial Discrimination Centre for Minority Rights Development Commission for the Legal Empowerment of the Poor Convention on the Rights of the Child Department for International Development Democratic Republic of Congo East African Community Economic Development and Poverty Reduction Strategy Eritrea-Ethiopia Boundary Commission Flexible Land Tenure System free prior informed consent Geographic Information System Global Campaign on Secure Tenure and the Global Land Tools Network Human Immunodeficiency Virus Inter-American Commission on Human Rights International Criminal Court International Covenant on Civil and Political Rights International Commission on Intervention and State Sovereignty International Court of Justice Settlement of Investment Disputes International Labour Organisation Legal Assistance Centre Liberal Peace Agenda Land Right Office Land Reform Programme Land Titles Ordinance Mogadishu City Charter Millennium Development Goals Ministry ofLand, Environment, Forestry, Water and Natural Resources Non-Governmental Organisations Namibia Housing Action Group New Institutional Economics Organisation of African Unity Oshakati Human Settlement Improvement Project Organic Land Law Oshakati Town Council Orphans and Vulnerable Children Southern African Development Community Shack Dweller Federation of Namibia Center and the Center for Economic and Social Rights Settlement Fund Trustee Surveyor General South West Africa South West Africa People's Organisation Town and Country Planning Act Technical Committee on Commercial Farmland Tribal Land Act United Kingdom Urban Land Management Law

ix

UN UNDP UNDHR UNDRIP

United Nations United Nations Development Programme Universal Declaration of Human Rights United Nations Declaration on the Rights of Indigenous Peoples

x

EDITOR’S INTRODUCTION

The importance of land law for the rule of law in Africa can hardly be questioned. Population pressures and competition over access to land and resources generate much conflict, complicated by the historical legacy of colonial laws and land-grabbing, and by post-independence land law reforms. The international development agencies increasingly fund projects related to land law, policy and administration, with the Food and Agriculture Organisation (FAO) and Habitat each maintaining specialist land tenure units, and the AU and SADC formulating land policy frameworks.

This book on themes in African land law is one of a pair, the other presenting local case studies. It is not so easy to achieve an overview, nor to find specialist writers in the field. Land law has traditionally been regarded as a difficult subject to teach, and specialists are fewer in the law departments of African universities than one might expect. A quick scan of the index to fifty years of theJournal of African Lawreveals less than one article a year with ‘land’ in the title, the most popular topics being the Nigerian Land Use Decree and tribal tenure in Botswana. Africa is less well served than other continents by specialist property law networks, and less represented at international academic conferences in the field. While Stellenbosch University in South Africa has a programme training academic land law specialists, that is an isolated initiative. The search for contributors to these books produced more non-Africans and those of the African diaspora than Africans working in their home country. Nor is African land law the exclusive preserve of lawyers, so other professions have represented, such as land surveyors, land economists and planners, as well as those working in NGOs. The list of authors thus includes a Cameroonian based in the USA, two Ghanaians and a Zimbabwean in UK academia, and within Africa a Tanzanian in Botswana and a Zambian in Namibia. With much research coming from outside the continent, non- African authors include three British, one French (geographer), one French-Canadian, one Texan (geographer), and one Dutch (land surveyor).

The two books attempt a balanced regional and thematic coverage. The table below presents basic statistics on the countries discussed, giving some pointers to their diversity, in population size, land area and population density, but a dozen countries from a continent that has over fifty inevitably means omissions.

xi