Online discussion: Customary law and institutions - Protecting or undermining community land rights in Southern Africa? | Land Portal

Comparative perspectives from across the SADC development community

 

This online discussion will explore two main questions:

  • How can customary law and governance institutions be strengthened to ensure social inclusion, secure community access to land and effective management of natural resources?
  • How can these institutions best be protected against corrupt and authoritarian leadership and capture by local elites and global business partners?

During the two weeks of discussion we will critically examine the role of customary institutions in protecting community land rights. We will also collect recommendations on these issues to support the design and implementation of policy, development initiatives and research for better land governance in the SADC countries and other regions with similar challenges.

 

Background

The role of customary law and institutions in land governance and administration in Southern Africa remains deeply contested and highly context specific. These contestations span both the colonial and post-colonial eras.

The colonial project sought to implement systems of indirect rule over subject peoples, whereby local leaders were elevated as ‘chiefs’ to act as proxies for colonial powers. In the post-colonial era, some governments severely limited the power of chieftainship to reduce their influence (Zimbabwe and Mozambique) or sought to bureaucratise them to serve elite interests (Botswana). However, in the case of South Africa, traditional institutions were safeguarded in the Constitution in a bid to end conflict and prevent civil war in the 1990’s.

Throughout the SADC region customary institutions have proved to be resilient and adaptive, with analysts pointing to a resurgence in their influence and powers. At the same time, attempts to ‘reform’ customary tenure have attracted criticism for the ways in which they have enabled local elites and global capital to grab land and place the livelihoods of households which depend on access to land and natural resources at risk.

A previous online discussion on the Land Portal examined the role of chiefs in the documentation of customary land in Zambia, while the dialogue on land and corruption in Africa focused in part on the role of traditional leaders in customary land administration with a focus on Ghana and Zambia. This online discussion will dive deeper on the role of customary institutions for community land rights for the whole Southern Africa.

 

How can I participate in the debate?

Create a profile on the Land Portal to join the dialogue as of 28th June.

 

We want to hear from you in advance!

In the run-up to the online discussion, we kindly ask you to complete this Google form to help collate current information on the status of customary law and institutions across the different SADC countries. This will help highlight key issues and trends impacting on the governance of land held under customary tenure systems. All participants will have access to this data which will also be summarised in the form of an accessible report.

 

The structure of the discussion

The online discussion will be open for two weeks. We are planning a mix of discussion, collaborative knowledge generation and formulation of policy recommendations. The facilitator will make reference to the inputs you provide via the Google Form to enrich the discussion.

We will examine the following specific questions:

 

Week 1

  1. How have relationships between the state and traditional leaders changed over time in different SADC countries pre and post-independence?
  2. In countries where colonial authorities set out to codify customary law (e.g Lesotho and South Africa) what impact did this have on traditional leadership, customary governance systems and community land rights?
  3. What are the main changes in access to and management of land under customary tenure within SADC member states resulting from government policies, land acquisitions, NGOs and social movements, donor programmes and constitutional commitments to gender equality?
  4. To what extent are customary law and associated institutions serving to recognise and protect community land rights?

 

Week 2

  1. How are living customary law and contemporary customary institutions adapting to address women’s land rights?
  2. Are processes of social change such as declines in marriage, or in customary forms of marriage, leading to changes in land tenure systems?
  3. What is the evidence from different countries that customary law and institutions have been co-opted/corrupted to facilitate land grabs, mining deals and elite capture of resources?
  4. To what extent do the problems encountered by those with customary land rights derive from wider problems in relation to land administration systems in general?

 

 

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