RES 2: Registering community rights: Legal issues, practical experience, and long-term challenges
Recognizing community rights in Africa
By R. Knight, IDLO and A. Salomao, Centro Terra Viva
The International Development Law Organization (IDLO) is currently concluding its 2-year Community
Land Titling Initiative in Mozambique, Uganda and Liberia. The Initiative’s goal was to investigate how
to best support communities to successfully navigate their nation’s community land titling and
documentation procedures and ensure that customary land rights are successfully claimed, protected, and
leveraged for local prosperity. The project’s objectives were to: 1) Facilitate the titling of customarilyheld community lands through legally-established community land titling processes; 2) Understand how
to best and most efficiently support communities throughout land titling processes; 3) Identify procedural
obstacles to fast, inexpensive and streamlined community land titling; 4) Devise and pilot strategies to
guard against intra-community injustice and discrimination during community-land titling efforts and
protect the land interests of vulnerable groups; and 5) Craft country-specific recommendations for the
improvement of community titling legislation so as to improve fairness and make titling procedures easier
for communities and land administrators alike. This presentation will report on the experiences and
findings of the Community Land Titling Initiative.
Land boards in Botswana and Namibia - A chance for integrating customary and modern land
tenure systems?
By T. Pickardt, GIZ
This paper will give a short overview about the communal land board approach in Botswana and its
recent installation in Namibia. It sets up the question if land boards may act as institutional bodies to
allocate and administer land in Southern African countries. The societies are highly dependent on
agriculture and land represents the fundamental resource of income generation and food production. A
fair access to land is often constrained through inherited colonial inequalities, overlapping law systems
and bureaucratic obstacles. A recent phenomenon is land grabbing. Large-scale agricultural areas are
purchased or leased to foreign investors or state actors for the purpose of extensive cultivation of biomass
for energetic use (i.e. Jatropha), food, and securing access to water. Legal insecurity is caused by a dual
land law system consisting of modern bureaucratic law and traditional customary law. These two systems
follow completely different logics in terms of design, administration, availability, rights, transfer and
security. A proper land reform and an improved resource management are needed to address the problems
concerning landless people, food security and stability of the law.
Customary land laws were shaped in the last 100 years during the colonial experience and the formation
of states. In this context persons with sacral, religious, political or economic influence served mostly in
British colonies as agents for the colonial administration and were installed as chiefs for their
communities. In other African colonies local leaders acted as a link between the colonizers and the
people. Till today, the so-called traditional authorities sum up social institutions which are related to the
customary system. One of their tasks is to administer customary land rights according to customary law –
a term which is flexible, negotiable and has been shaped over time. In many societies, decision about land
allocation is made by the chief, who may rule arbitrarily and who cannot be voted out of his office.
Moreover, the system privileges chiefs who claim legitimacy based on ancient practices.
Customary land law acts according to the subsistence strategies of the population, which are based on
different ways like hunting, agriculture, transhumance, shifting cultivation and the like. Land may be in
one season used as farm land by farmers, while in the next season cattle-breeders use the land for grazing
their animals. Communal land use is of major importance in customary land systems, while individual
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ownership is mostly associated to the modern system. However, most of the people express their wish to
obtain formal security for their fields and residence plots. Since both law systems are in existence at the
same time and create a legal pluralism, the population is faced with legal insecurities concerning land
access and transfer. While customary systems are accused to be insecure, do not create incentives, are not
marketable, rely on arbitrarily decisions of chiefs and headmen and are prone to bribery, modern
bureaucratic systems more often fit in the subsistence strategies and perceptions of the population.
An approach has been made to combine modern and traditional law and to set up communal institutions,
which are in charge for land administration: communal land boards. The idea of customary land law is
followed; however it is not carried out by the traditional authority but by a committee consisting of
community members. In addition to that, people can register their plots and obtain formal security for
inheritance and transfer of land. Land can also be leased and the lessee obtains a certificate, which may
help for investment in the land. However, the idea of communal areas which are under collective rights
and community members use common resources, are not abolished but strengthened.
Communal land boards were introduced in Botswana soon after independence. The country enacted a
robust land administration system in the year 1968 with the Tribal Land Act and introduced land boards
as non-political bodies to take over customary administrative functions from the chief and other
traditional authorities. Elected and nominated board members issue customary grants and leasehold
certificates. All unallocated land is common property. Botswana’s neighbouring country Namibia has just
established communal land boards with the Communal Land Reform Act in the year 2002. The process of
formation is still undergoing. In this paper, experiences, lessons learnt from Botswana are shared and
ideas for scaling up the approach of communal land boards are presented.
Creating a policy framework to register effectively the landholding rights of villagers: Experience
from Benin
By W. Valletta, MCC and J. Kougblenou, MCA Benin
For more than 15 years, Benin’s national and communal leaders have adapted and applied the Plan
Foncier Rural [PFR], as the mechanism to define and register customary landholding rights and make
them effective in legal, economic and social relations. This work combines in each village a series of
tasks that begins with social observation; continues with parcel survey, landholder census, mapping and
recording of rights; and then creates a communal PFR registry, consisting of the parcel map, the list of
landholders and an archive of subordinate agreements for use and occupancy of land. A village
committee is organized to assist the citizens when they make new acts and agreements. At the end of the
process, each registered proprietor can receive a Certificate of Rural Landholding [CFR] to present as
proof of rights in any court, mediation tribunal, administrative agency or transaction.
Benin’s leaders expect that the PFR will diminish disputes over land, strengthen tenure security, and
encourage investment and the expansion of credit. They recognize, however, that these results will not be
automatic and the effectiveness of the PFR will be found in the content of the rights and obligations that
are recorded; in the evidentiary status of its registry and CFR; in the rules of priority that will apply when
conflicting rights arise; and in the capability and willingness of the agencies and the judiciary to enforce
the rights and obligations. Reform requires the articulation of new policies of landholding and a
fundamental review of the law to determine how the regime of custom may continue to function in
parallel with the civil law and the domain.
The recently adopted Declaration of Policy for Landholding and the Domain has put into place the vision
of a unified or synthesized structure of law, in which all three regimes will be retained as the sources of
landholding rights. Each regime will generate secure rights of proprietorship and subordinate rights in
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land. Though variable in content and in the processes that originate and “formalize” them, these
proprietorship rights will be equivalent in status and equally protected in modern and simplified
procedures of administration, judicial review and transactions.
This unified or synthesized land tenure system will be accomplished by the refinement and introduction
of five institutes of law and related procedures: (i) In rural areas, agricultural/pastoral land parcels and
the rights and obligations of customary proprietorship will be formed and defined in the Plan Foncier
Rural [PFR]; (ii) In urban areas and for the holdings of commercial/industrial investors in all areas, the
parcels and the rights and obligations of civil law proprietorship will be formed by contract in direct
transactions between parties, then verified, certified and recorded in the land registry; (iii) In all areas,
lands not under custom or private civil law proprietorship will constitute the state and communal domain,
with the requirement that parcels be formed and recorded in state or communal proprietorship before
being transferred to investors by concession or lease, or to subsistence householders by un-paid
allocation; (iv)Landholders with “irregular” documentation will be protected by the status of presumed
proprietorship during the interim period before a PFR or civil law registration can be completed; (vi)
The legal institute of prescriptive acquisition will allow landholders, who have occupied and used land
peacefully for many years, to claim proprietorship, even if they have no documentation; (vii) A new
procedural category, called the certification of landholding rights, will encompass the two separate
procedures of PFR and civil law verification and registration. The accomplishment of either procedure
will result in the issuance of the same document of proof, to be called a certificate (or a title) of
landholding property rights [CPF].
By the end of 2011, Benin’s land agency officers and experts expect to have 400 villages with completed
PFR (just over 10% of the 3,400 villages in the nation) as well as substantial numbers of new urban titles
and “restituted” state land titles. They also expect the Parliament to take action (or be ready to take
action) on the new Land Tenure Code. These elements should establish a sustainable momentum of
reform activity, moving toward the long-term vision of a multi-origin, but unified, system of tenure.
Establishing communal land registration in Namibia: The process, cost and challenges
By M. Kasita, Namibia Land Boards
The Communal Land Reform Act, Act No 5 of 2002 established both the communal land registration and
the Communal Land Boards. There are many role players in the registration process; government
ministries, tradition authorities, tourism enterprise and the land right holders, residing communal areas.
The aim of registering land rights is to bring about tenure security and promote investment in land. The
registration is however, constrained by cultural, financial, logistical and manpower challenges.
Land in Namibia is divided into 44% freehold, (commercial) 36 % communal and 20 % state land. As it
can be seen in the distribution of tenure categories, land distribution is very much unequal, and it has been
the effort of the government to bring equity in land ownership, through land redistribution and tenure
reforms. The communal land registration is governed by the Communal Land Reform Act, Act 5 of 2002
which stipulates powers of the Traditional Authorities and Land Boards in the administration of
communal lands.
While the commercial or freehold land is surveyed and registered in the Deed Registry, the communal
land is not surveyed and is unregistered. This creates tenure insecurity presenting itself in self allocation,
boundary disputes, land grapping, low investment and poor land management.
To eliminate tenure insecurity in the communal areas, the government of Namibia had introduced the
registration of land rights in the communal areas through the Communal Land Reform Act, Act No. 5 of
2002, which provides for the establishment of Communal Land Boards (CLB), the institution tasks with
land administration.
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There are twelve (12) Land Boards in Namibia, established in each political region except the Khomas. A
Chairperson, who directs the activities of the Board, heads each Land Board. Membership to the
Communal Land Boards is as follows: (i) One representative from each Recognized Traditional Authority
within the Board's area; (ii) One member from the organized farming community representing the
interests of farmers; (iii) A regional officer of a regional council; (iv) Two women engaged in farming
activities,; (v)Two women with expert knowledge relevant to the functions of the Board; (vi) One person
representing a conservancy(s) jointly; (vii) One representative from the Ministry responsible for land
affairs , the Ministry responsible for agriculture, the Ministry responsible for regional government and the
Ministry responsible for environmental matters.
Communal land registration is important because it gives security to land holders, their spouses, children
and/or dependants; ensures documentary proof of the holder right to land; exact boundaries are known
and disputes are minimised. It allows each parcel of land to be owned by one person at a time which rules
out any form of land grabbing. It avails a right for compensation when the parcel or part of it is claimed
by the government for building of new roads or town expansion.
There are about 300,000 communal land rights to be registered in the communal areas. A total of 32,423
customary land rights have been verified in the field and 18,400 certificates of customary land rights had
already been registered and issued. There are about 270,000 land rights still to be verified in the field and
290,000 land rights to be registered and certificates to be issued.
It was initially planned for the registration to be outsourced to private companies, only two inexperienced
companies tendered as a result the registration could not be outsourced. The Ministry came up with a
different methodology. Whereby, temporary staffs are hired to assist MLR in the registration. The total
budget to finish the registration is estimated at N$122.1 Million.
In summary, the challenges to the registration include misconception and cultural practices, lack of
understanding, limited skilled manpower, natural events such as floods and harsh weather conditions and
high financial cost.
Despite many challenges, the Namibian government is committed to bring tenure security to the
communal areas. It is believed that security of tenure promotes socio-economic development of the
people as well as encourages natural resource management like grazing and water.
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