Other country experiences - Online discussion on customary law - 28 June - 9 July | Land Portal

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2nd Week

5 - 9 July

In the 2nd week, the discussion took place in the plenary space


1st Week

28 June - 4 July


This is the discussion thread on other country experiences, as part of the Online Discussion "Customary law and institutions - Protecting or undermining community land rights in Southern Africa?"


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We have had several inputs into our prediscussion survey from countries elsewhere in Africa and beyond. This is the space where you can tell your country story. What role are customary law and institutions playing in recognising and protecting land rights? Are these institutions being captured by elites and used to capture resources?  What are the key changes you are seeing over time?

We are posting country summaries based on the data submitted as part of our pre discussion profiling survey. Responses have been anonymised. 

Land Portal Online Discussion 2021

Customary law and institutions - Protecting or undermining community land rights in Southern Africa?


Google form returns summarised

Approximately what percentage of land used for grazing, farming, forests and conservation is held under customary tenure systems? 

  • 70%

Data source

FAO - http://www.fao.org › land-tenure-and-related-institutions  

Are there established chiefdoms and customary decision making fora playing a role in land allocation and governance?

  • Yes. Local district governments, traditional kingdoms

Is there national legislation governing the role of traditional leadership institutions?

Status of customary law

  • There are legally recognised customary courts

Is traditional leadership hereditary?

  • Yes

Are there instances when traditional leaders are locally elected by their community?

  • Yes

Are there mechanisms in customary law to replace a hereditary traditional leader if they lose the confidence of the community?

  • No

Can women assume traditional leadership positions?

  • Yes

Do recognised traditional leaders receive salaries or stipends from the state?

  • Don't know

Can they legitimately impose levies or fines on communities they represent?

  • Yes. Details unknown as yet

How would you rank the political influence of traditional leadership institutions?

  • [6] Since 1995, traditional leadership has been re-instated

What role do traditional leaders and customary institutions play in allocating land to those living in areas under customary tenure?

  • This varies

How is land inherited and passed down the generations?

  • Fathers pass land to children, now an issue as population doubling in 14 years so land scarce

Do customary law and institutions enable women to access land independently of men?

  • Generally no

How would you rank the security of women's land rights under customary tenure systems in Madagascar?

  • [2] Only 7% of land is owned by women who do 94% of the agriculture work. 

What role do traditional leaders and customary institutions play in mediating land related disputes?

  • An important role - albeit informally. 

Which statement best describes customary institutions in the country under review?

  • There are examples of both types of practice - accountable and responsive and corrupt and authoritiarian

General remarks and additional information

  • Kafuga Forest is a potential buffer to Bwindi Impenetrable Forest.  local district government has won a court battle to keep Kafuga forest protected from farmer/ land owners but it must be gazetted by Sept 2021, they don't have the funds to do this - US$14,000


The Congo Republic began an ICDP project called ECOFAC in 1992 as part of a six-country moist tropical forest program funded by the European Union. Unusual for an ICDP, the project’s terms of reference were to establish a highly devolved administration of the Odzala National Park and the surrounding forest areas – which included a safari-hunting block – for the benefit, and considerable responsibility of the customary residents, the Pygmy, and the local Bantu settled on the roads. As the original inhabitants of the moist forest, the Pygmy customary areas were not formally recognized by the state.

In 1993, the state reneged on the ECOFAC terms of reference, saying that they had no intention of fully empowering customary people (Bantu and Pygmy) and that they would only ‘consult them’. The EDF project director resigned in protest (IM).

It took until 2010 for a management plan to be produced. As revealed in Redd-Monitor.org, this plan supposedly ensured that local communities would gain benefits generated from the conservation of the national park. In the same year African Parks - a privatization NGO from South Africa with numerous projects in Africa - signed a 25-year agreement with the government for the management of the Odzala. The MOU stated that revenue from the park would not be distributed to local communities. The agreement also allowed AP to trade carbon in the park. The Congolese Human Rights Observatory (Observatoire congolais des droits de l’Homme) produced a position paper on the agreement in 2011 questioning the World Bank’s Forest Carbon Partnership Facility on the matter of just who owns, regulates and benefits from the carbon. They then called for the Congolese government to:

"State the illegality of the agreement. Indeed, the nature of it is not in compliance with the law on wildlife and protected areas; respect the wishes of the communities expressed in the management plan for the park approved in 2010 by ECOFAC; obtain the free and prior consent of the communities in case of revision of the management plan that ensures their involvement and participation unconditionally in the benefits generated by conservation activities; refrain from making commitments in the carbon market before the national process of developing the mechanism which is being implemented by the National REDD committee."

In 2011, the state introduced a law on the rights of Indigenous Peoples and the ownership of customary land (law N.5). This has not been implemented.

It is now clear that the Odzala–Kokoua National Park’s participatory management was removed illegally and unconstitutionally from the 2011 law promoting indigenous rights. The United Nations Special Rapporteur on Indigenous Rights, James Anaya, noted that the underlined part of the following sentence was omitted from the law’s adoption by parliament and its promulgation by the President of Congo Republic: ‘In the case where protected areas are created on lands occupied or traditionally utilized by indigenous peoples, the state has an obligation to consult them and take measures to guarantee their access to those areas for traditional activities or subsistence needs, and include them in the management of the resources’.

In 2015 Rights & Resources reported that the government had regulations for local community forestry concession implementation, was drafting legislation on the rights of customary people, and had developed a draft decree for the implementation of customary rights.  It is not being implemented. And in 2011 the Rainforest Foundation further exposed the neocolonial activities of outsiders and their impact on the local inhabitants, in particular, the Pygmy.

Wilmar International Land grabbing activities. See: Environmental Justice Atlas >ejatlas.org 

Dear participants,

For the second week of discussion starting on Monday (5h July) we will move the conversation back to the plenary space. The country pages will remain open over the week as 'read only’. 

Let us know your thoughts! This week we will talk about:

1. How customary law is adapting to protect women's land rights?

2. What good practices exist in liking statutory and customary institutions?

3. If SADC was to develop a policy on land governance, what would be your recommendations so that it recognises customary law and institutions?

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