Perspectivas comparativas de toda la comunidad de desarrollo de la SADC (Comunidad del África Meridional para el Desarrollo)
Este debate en línea explorará dos cuestiones principales:
- ¿Cómo pueden fortalecerse las instituciones de derecho consuetudinario y de gobernanza para garantizar la inclusión social, el acceso seguro de las comunidades a la tierra y la gestión eficaz de los recursos naturales?
- ¿Cuál es la mejor manera de proteger a estas instituciones contra el liderazgo corrupto y autoritario y la captura por parte de las élites locales y los socios comerciales globales?
Durante las dos semanas de debate examinaremos críticamente el papel de las instituciones consuetudinarias en la protección de los derechos comunitarios sobre la tierra. También recogeremos recomendaciones sobre estas cuestiones para apoyar el diseño y la aplicación de políticas, iniciativas de desarrollo e investigación para una mejor gobernanza de la tierra en los países de la SADC y otras regiones con retos similares.
Antecedentes
El papel del derecho y las instituciones consuetudinarias en la gobernanza y la administración de la tierra en el sur de África sigue siendo muy controvertido y depende en gran medida del contexto. Estas impugnaciones abarcan tanto la época colonial como la poscolonial.
El proyecto colonial pretendía implantar sistemas de gobierno indirecto sobre los pueblos sometidos, en los que los líderes locales eran elevados a la categoría de "jefes" para que actuaran como apoderados de las potencias coloniales. En la época poscolonial, algunos gobiernos limitaron severamente el poder de los caciques para reducir su influencia (Zimbabue y Mozambique) o trataron de burocratizarlos para que sirvieran a los intereses de las élites (Botsuana). Sin embargo, en el caso de Sudáfrica, las instituciones tradicionales se salvaguardaron en la Constitución en un intento de poner fin al conflicto y evitar la guerra civil en la década de 1990.
En toda la región de la SADC, las instituciones consuetudinarias han demostrado ser resistentes y adaptables, y los analistas apuntan a un resurgimiento de su influencia y sus poderes. Al mismo tiempo, los intentos de "reformar" la tenencia consuetudinaria han suscitado críticas por el modo en que han permitido a las élites locales y al capital global acaparar tierras y poner en peligro los medios de vida de los hogares que dependen del acceso a la tierra y los recursos naturales.
En un debate anterior en el Land Portal se examinó el papel de los jefes en la documentación de las tierras consuetudinarias en Zambia, mientras que el diálogo sobre la tierra y la corrupción en África se centró en parte en el papel de los líderes tradicionales en la administración de las tierras consuetudinarias, con foco en Ghana y Zambia. Este debate en línea profundizará en el papel de las instituciones consuetudinarias para los derechos comunitarios sobre la tierra en todo el sur de África.
¿Cómo puedo participar en el debate?
Crea un perfil en el Land Portal para unirte al diálogo a partir del 28 de junio.
¡Queremos saber de ti con antelación!
En el período previo al debate en línea, te pedimos que completes este formulario de Google para ayudar a cotejar la información actual sobre la situación del derecho consuetudinario y las instituciones en los diferentes países de la SADC. Esto ayudará a poner de relieve las cuestiones y tendencias clave que afectan a la gobernanza de la tierra bajo sistemas de tenencia consuetudinarios. Todos los participantes tendrán acceso a estos datos, que también se resumirán en un informe accesible.
La estructura del debate
El debate en línea estará abierto durante dos semanas. Tenemos previsto una combinación de debate, generación de conocimientos en colaboración y formulación de recomendaciones políticas. El facilitador se referirá a las aportaciones que ustedes hagan a través del formulario de Google para enriquecer el debate.
Examinaremos las siguientes cuestiones específicas:
Semana 1
1. ¿Cómo han cambiado las relaciones entre el Estado y los líderes tradicionales a lo largo del tiempo en diferentes países de la SADC antes y después de la independencia?
2. En los países en los que las autoridades coloniales se propusieron codificar el derecho consuetudinario (por ejemplo, Lesoto y Sudáfrica), ¿qué impacto tuvo esto en el liderazgo tradicional, los sistemas de gobernanza consuetudinarios y los derechos comunitarios sobre la tierra?
3. ¿Cuáles son los principales cambios en el acceso y la gestión de la tierra en régimen de tenencia consuetudinaria en los Estados miembros de la SADC como consecuencia de las políticas gubernamentales, las adquisiciones de tierras, las ONG y los movimientos sociales, los programas de los donantes y los compromisos constitucionales en materia de igualdad de género?
4. ¿En qué medida el derecho consuetudinario y las instituciones asociadas sirven para reconocer y proteger los derechos comunitarios sobre la tierra?
Semana 2
1. ¿Cómo se están adaptando el derecho consuetudinario vivo y las instituciones consuetudinarias contemporáneas para abordar los derechos de las mujeres a la tierra?
2. ¿Los procesos de cambio social, como la disminución de los matrimonios o de las formas consuetudinarias de matrimonio, están provocando cambios en los sistemas de tenencia de la tierra?
3. ¿Cuáles son las pruebas de diferentes países de que el derecho y las instituciones consuetudinarias han sido cooptados/corrompidos para facilitar el acaparamiento de tierras, los acuerdos mineros y la captura de recursos por parte de las élites?
4. ¿En qué medida los problemas que encuentran quienes tienen derechos consuetudinarios sobre la tierra se derivan de problemas más amplios en relación con los sistemas de administración de la tierra en general?
Comments
Welcome to this two week online discussion focusing on the role that customary law and institutions play in community land rights management and governance within the different countries which make up the Southern African Development Community (SADC).
The idea for Land Portal to convene this online discussion emerged through the research process to prepare our Country Portfolios for SADC countries (check https://landportal.org/countries). This work was done by Rick de Satgé, one of our moderators for this debate. It became clear that there are strongly diverging opinions about the role played by customary law and institutions in governing land, including its allocation and administration.
While in some cases customary institutions play an important role in avoiding conflict within and between communities, in others, they have enabled local elites and global capital to grab land and put the livelihoods of land-dependent families at risk. As the region currently sees a rapid growth in Covid infections, having land often becomes their only means of shelter and protection against the virus.
As you can see, this is a rather ambitious and important discussion. And you will have two very experienced moderators and researchers on this topic over the next two weeks:
Rick is a researcher and communicator who works part time for the Land Portal as a Country Research & Engagement consultant, with a focus on Southern Africa. Rick was born in Zimbabwe and lives in Cape Town. He has over 40 years of experience in the land sector working in South Africa, Zimbabwe and Botswana. Rick is a former Director of Research and Collaborative Learning with Phuhlisani NPC, a South African non profit company focused on land reform, to which he remains affiliated as a Senior Research Associate. He currently curates www.knowledgebase.land providing news and links on land issues in South African and the region.
Siyabulela has a strong transdisciplinary background, with expertise that goes from land governance, land administration and land reform to land data ecosystems. In the course of his 30 year career in the land sector, he has made an enormous contribution to a range of research, policy assessment and formulation assignments for various government entities. Since 2010 he has been involved in intricate land-legal ground breaking, supporting Water Services Authorities in the Eastern Cape Province navigate around land tenure hurdles on their infrastructure projects. Siyabulela has a PhD (Science) in Geography and is a research associate of Rhodes University.
We look forward to seeing your comments on this controversial, yet essential debate for Southern Africa and other regions in the world, to explore the granularities of customary institutions and ways in which they can work for (and not against) vulnerable groups.
Greetings to everyone joining this discussion wherever you may be.
Over the next two weeks we seek to explore and better understand the contribution of customary law and institutions to the protection of key community land and resource rights in both rural and urban settings across the different countries in the SADC region. In this we will be drawing on the many contributionsof those who responded to the Google form(link is external) to help create a baseline of information to draw on in the days ahead. This form is still open if you have not had a a chance to contribute so far.
Unfortunately the rapid escalation in Covid-19 case numbers across the region fuelled by the highly infectious Delta variant casts a deep shadow over us all. Our thoughts are with all those battling with the impacts of the pandemic. Here is South Africa we havejust entered Level 4 lockdown. Other countries in the SADC region like Namibia are facing rapidly intensifying health emergencies.
In addition SADC countries face an interlocking array of complex issues:
Widening inequality
Rapid climate change
High levels of unemployment
Unplanned urbanisation
Land, mineral and natural resource grabs by elites and corporations
Social conflict
Displacement and migration.
In these increasingly volatile settings secure access to land for livelihoods and settlement are of fundamental importance to vulnerable households.
There is an enormous diversity within the SADC member countries.The role of customary law and institutions in land governance and administration in Southern Africa remains deeply contested and highly context specific. Post-colonial governments have taken widely differing approaches with respect to the recognition of customary law and associated institutions. The region contains a full spectrum of policy approaches and political systems ranging from a ban on the institutions of chieftainship and the marginalisation of customary law in Tanzania, through to Eswatini - an absolute monarchy with a system of local government, based on chiefdoms and district assemblies.Located between these two poles within SADC are a variety of systems and institutional arrangements which we seek to better understand and learn from.
As you will have seen we have clustered countries together so as to share experiences and create opportunities for more in-depth locally specific discussion.
We have also set up a central plenary discussion space where we will reflect on the issues and debates surfaced through the country clusters and collectively engage with the big crosscutting questions which will arise.
Today we start the discussion in the different country clusters with three linked questions:
How has the relationship between the state and traditional leaders changed over time in different SADC countries pre and post-independence?
What changes have there been in the legal status of customary law?
What has been the thinking behind these changes?
We are experimenting with using Deepl for those countries where there are French and Portuguese speakers. If you want to write in either of these languages feel free. If you want to provide a translation at the same time go to Deepl and copy in your text before choosing the language in which you wish to translate it. Otherwise the moderators can do this on your behalf. There may be some mistakes so we will rely on bilingual people to help correct these.
Good day all
Thanks a lot Rick and Siyabu, and I am excited and honoured to have been invited to participate in this important topic.
I look forward to a rewarding experience, not the least, to the wonderful facilitation of the forum by Rick and Siyabu.
Regards
Many thanks for your kind words. We are looking forward to your contribution as you have important knowledge from both South Africa and Botswana to share. We need critical and informed inputs to help build up a picture of the key trends and issues across the SADC region so we hope to see you active in these two discussion spaces.
Thank you for introducing this timely topic. It is concerning that Customary land rights in Southern Africa are increasingly vulnerable. The current efforts to secure land rights through titling and registration and the courts seem to have limited impact. I would like to know if there are any promising initiatives in other parts of the world.
Land Portal is addressing an extremely important subject. I have produced a FREE 115,000-word manual addressing this subject for Zambia entitled: Guardians of Eden Manual. It can be downloaded by participants in epub from Kobo, plus a free app. It is relevant for much of Africa and for Indigenous Peoples generally.
Thank you also for contributing to the Google form survey to profile Zambia ahead of this discussion. It would be great if you could distil the essence of your work in the country cluster which includes Zambia.
Hi Gaynor.
Thank you for joining the conversation where you have a great deal to contribute. it would be great if you could contribute insights from your research to the South African and Zimbabwean clusters. As we get further into the discussion we will be very intersted to pursue this statement made in your coauthored 2019 paper.
So our discussion is off to a good start with a number of interesting and provocative posts made on the first day. We have started out by trying to explore something of the colonial and postcolonial history of the different countries in the SADC region and the impact of colonial rule on customary law and institutions of traditional governance. In this we are trying to identify some of the forces which have shaped the evolution of customary law, the current form and relative influence of ‘traditional’ leadership in the different country contexts.
Angola and Mozambique
In this country cluster Allan Cain has provided insights into the massive disruption caused by the arrival of the Portuguese in all aspects of traditional society in Angola including widescale appropriation and alienation of land by Portuguese settlers and land speculators. He notes that the first post-Independence Land Law passed in 1992 did not give formal legal recognition to customary rights in land. Nor did it recognise the rights of those in urban informal settlements, or those who had reclaimed estates abandoned by the Portuguese.
Participants from Mozambique have yet to join the discussion online but had been very active in completing the Google form. A PDF with a summary of their responses has been posted on the country page. We will be picking up on their analysis in the days ahead.
Eswatini, Lesotho and Botswana
Sean Johnson has provided an important background piece comparing and contrasting customary law and institutions in Lesotho and Eswatini. He notes that “in both Kingdoms, chiefs are the 'pivot' on which both Liswati and Basotho define their collective need for land and how rural communities govern, manage, and administer land use, and the principal task of the chief, working with a council of elders, is to allocate land to families who are, or will become, part of the community and chiefdom.” He notes that in both kingdoms “traditional authority and customary law, land tenure, and governance are rooted in political struggles over limited land resources”. He concludes with an important question:
This will be a question we will need to keep in mind throughout this discussion. While the answers will vary the outcomes and impact seem centrally relevant.
In a follow up to his piece there are questions about the impacts of the codification of customary law and its relationship with ‘living customary law’ leading to bigger questions about how to make legal pluralism actually work in practice.
Namibia and South Africa
Romy Nghitevelekwa who is the author of a recently published book Securing Land Tenure: Communal Land Reform in Namibia has focused on how the functions of traditional authorities in Namibia are regulated by the Traditional Authorities Act and the Communal Land Reform Act. It seems that traditional authorities in Namibia have retained significant powers, allocating land, mediating disputes and levying fines for a range of offences. She mentions the role of Communal; Land Boards so it will be interesting to explore the relationship between the functions and composition of the Land Boards and the role of traditional leaders
In this section we republished an article from the Conversation by Ben Cousins which focuses on a recent legal case in South Africa ruling on the rights of people living on customary land in the Province of KwaZulu-Natal. He notes that in communal areas in this province, most daily land administration tasks, such as approving applications for allocations of land, are carried out by traditional leaders (amakhosi) and village-based headmen (izinduna). Customary land rights derive from locally accepted membership of rural communities, mostly through descent but also of newcomers. They are protected by the Interim Protection of Informal Land Rights Act 1996.
The judgment sets out how land is allotted to a family head as residential and arable plots and access to communal pasture; no financial payments are involved, and land rights are inheritable. Land becomes the property of the family, and nothing may be done with such land without the involvement and consent of the owner. The judgement notes that
Ben Cousins concludes that “the challenge for tenure reform policy is to express these principles in law in a way that provides certainty, and ensures the protection of land rights holders. This will lay a firm foundation for administrative systems focused on both support for rights holders (for example, in resolving disputes over land), and to facilitate development planning and service provision”.
Siyabu Manona has highlighted how there is currently no coherence in the different parts of the state concerning customary law and customary land rights.
Tanzania, Zambia, Zimbabwe and Malawi
Participants from Zambia are prominent on this page at present with Matt Sommerville highlighting the evolving role for customary law and the need for building more transparency and documentation within the customary structure. Betty Okero focuses on the place of women’s voices and visibility in customary structures – an issue that we will explore in more detail as the discussion unfolds.
Ian Manning provides historical background on how Zambia fell under colonial control, the establishment of ‘native reserves’ and the formalisation of ‘tribes’ and the appointment of chiefs by statutory appointment. He shines a light on the extraordinary level of detail which went into the colonial project of ‘native administration’.
So many issues are finding their way onto the table. One thing that merges strongly on Day One is how context is key and the risks associated with attempts to homogenise customary law and institutions, while at the same time finding ways to make institutions transparent and downwardly accountable.
While the discussion continued here, in South Africa former president Jacob Zuma was sentenced jail by the Constitutional Court. This hopefully sends a signal that the unfettered corruption and capture nurtured during the past years and which has hollowed out the South African state and undermined the land and civil rights of many rural citizens will be brought back under control. At the same time news reports from Eswatini highlight mounting social unrest and dissatisfaction against the rule of King Mswati.
Angola and Mozambique
In this country cluster Simon Norfolk has contributed a rich piece which tracks the changing position of the state vis a vis customary structures and traditional authorities. In 1975 the Frelimo government nationalised all land and abolished all customary structures which fuelled conflict and civil war. By 1989 with the collapse of the Soviet bloc following the symbolic fall of the Berlin Wall socialist policies were replaced with neo-liberal turn. However, this did not affect Mozambique’s stance on customary authorities which remained marginalised. It took ten years for the state to recognise the de facto role of customary systems in local land administration, but for a long time it resisted conferring meaningful powers to local structures. Simon describes Frelimo’s schizophrenic journey alternating between centralisation and decentralisation. He notes that despite all the twists and turns customary authorities have remained resilient and positioned “to continue to provide a local, accessible, affordable land administration service, solving conflicts and witnessing transactions”.
At the same time the complex situation which has developed over the past few years in Cabo Delgado shines a light on the consequences of large scale investments and accompanying local land alienation and forced relocations. It raises the question of how land gets allocated for investment and who are the winners and losers as a consequence of these deals? Howe are local people and customary structures involved in these processes and their situation properly addressed?
Eswatini, Lesotho and Botswana
On this page there has been some discussion about the pros and cons of the codification of customary law. The status of customary law and its place in a pluralistic legal system is an important topic for discussion. Writing elsewhere about this relationship Laurence Juma has noted:
African customary law scholars have been preoccupied with finding points of convergence between two divergent paradigms instead of seeking to develop African customary law as a distinct legal tradition that espouses rules and supports institutions of its own kind.
This raises important questions as the discussion unfolds:
Ian Manning has picked up on analysis by Liz Alden Wily focusing on Botswana where Tribal Land allocation has been centralised under the land Boards. This has undermined opportunities for villages to formalize their traditional rights to specific rangelands and enabled individuals to access these lands under common law leases.
Again important questions arise:
Namibia and South Africa
In the run up to this discussion more than 50 people submitted responses to our Google form seeking to profile the status of customary law and institutions in each of the SADC countries. The form is still open for submissions. One of the contributors was Wolfgang Werner, a leading Namibian researcher. We published a narrative based on his form submission yesterday which provides a comprehensive picture of the Namibian journey. This is a highly recommended read.
In his piece Wolfgang notes that:
One thing that stands out from this very helpful overview of the situation in Namibia is the lack of restrictions on the powers of traditional leaders to alienate land for investment. Such investment may create profit and jobs for a few but dispossess and removes people whose livelihoods depend on the land. This is a powerful theme that is starting to emerge in different country clusters.
In South Africa the Land and Accountability Research Centre and other civil society groupings have argued that clause 24 of the Traditional and Khoisan Leadership Act (TKLA) has empowered traditional councils to enter into agreements with external entities such as mining companies and did not take into account the need to obtain consent from land rights holders. The objections of land rights activists and judgments in court cases finding that community consent was required to approve development on their land were ignored by the legislators and Section 24 stands.
In this instance it seems that the policy direction of the state is specifically delegating authority to fast track mining deals on communal land to the benefit of elites.
The issue raised by Wolfgang illuminates one of the central questions underpinning our discussion:
Tanzania, Zambia, Zimbabwe and Malawi
Matt Sommerville provides a caution against elevating customary law as a magic bullet to prevent elite capture. His post has relevance for the discussion as a whole and address the second core question framing this discussion
Matt observes that:
Also on these pages Ian Manning poses a related question:
So the discussion advances but is clearly in need of wider participation to realise its potential.
Day 3
The high point from day three has been the closely researched think piece published by Dr Phillan Zamchiya on Zimbabwe – State politics and customary power of chiefs. Similar to Simon Norfolk’s earlier piece reflecting on Mozambique, Phillan unpacks the complex history underpinning the changing role and influence of Chiefs in Zimbabwean society. In both colonial and postcolonial settings, the state has set out to influence and manipulate chiefs and customary institutions in the service of very different political agendas. When Zimbabwe obtained independence in 1980 after fighting a bitter liberation war, many, though not all chiefs and customary institutions had been discredited, perceived to have been co-opted by the white Rhodesian regime. His post tracks how for almost two decades after independence chiefs were politically sidelined, and their functions were taken over by village and ward development committees. However, with rising resistance to the ruling party in Zimbabwe, politicians decided to restore the powers of chiefs and headmen, who now ‘returned’ to the chair of the village and ward committees respectively. In more recent years there has been overt deployment of patronage to win the political support of chiefs who “were subordinated to a partisan state”.
In the new Zimbabwean Constitution passed in 2013, the powers of Chiefs were explicitly recognised. They have jurisdiction and control of communal land and powers to allocate residential and farming land. However, these powers are not unfettered, as land allocations are required to be approved by the Rural District Council and allocations must also be consistent with norms of customary law.
Phillan concludes that:
Any policy efforts to democratise Chieftaincy, preserve its authentic customary role of representation or gradually modify it will need to face the reality that it is shaped by the developmental visions of the State, the political interests of the ruling elites and contested versions of customary practices.
This supports earlier contributions in this conversation which highlight the overwhelming importance of context and the dangers in generalising about customary institutions which have been shaped in very different ways by the diverse developmental visions of SADC member states.
On the Namibia South Africa page Charl-Thom Bayer has highlighted that although traditional authorities are not required to consult with the community in decisions to alienate land for investment, their powers to independently approve such alienation are tightly constrained as approval from both the Land Board and the Minister are required before such transactions can be made. From a community land rights perspective questions must still be asked about the adequacy of this approval process and the extent to which it safeguards the majority interest.
Days 4&5
Protests against King Mswati III in Eswatini have meant that people participating/monitoring in the discussion from there have been cut off.
In the background to the discussion people are continuing to respond to our pre discussion survey examining the roles and legal status of customary law and governance institutions in the various SADC countries. We have been collating and amalgamating these responses as resources for an informed discussion.
So far more than 50 people have completed this survey with the majority of the responses coming from:
We have also had responses from:
In our Mozambique and Angola thread Lasse Krantz joined the discussion to examine the different powers and roles of chiefs or ‘regulos’ when it comes to administration and governance of land and how they articulate with government policy of formalising communities as collective landholding units.
In the Namibian and South African country threads different perspectives have emerged on whether traditional leaders are required to obtain informed consent of communities before divesting any community owned land for investment purposes. Charl Thom Bayer seems to differ with Wolfgang Werner concerning their obligations in this regard. Charl-Thom focuses on how the requirements to consult so easily ignored or set aside enabling elites to circumvent or break the law with minimal consequences. He asked whether the alienation of customary land should be regarded as equivalent to a process of expropriation which involves much stricter requirements with regards to valuation and compensation. In a context characterised by mounting pressure on natural resources and the search for lucrative land-based investment these are critical questions. Wolfgang Werner in his responses highlighted the uncertain relationship between customary and statutory law. He notes that although the legislation provides “traditional leaders with considerable powers in the administration of customary land rights, it does not provide for appropriate measures to enforce their decisions”. This suggests that there is a long way to go before systems of legal pluralism which recognise both statutory and customary law find ways to actually do this in practice. In the Namibian example there is a legal pyramid with statutory law at the apex.
On the DRC, Madagascar and Mauritius page to Teresa Connor has posted a profile of Madagascar and the role of customary law and institutions in land allocation and governance. This complements the earlier contribution by Faly Ranaivoson. On the same page in response to the second question focusing on the main changes in how land is accessed and managed under customary tenure within SADC countries Ian Manning describes changing approaches to the management of forest resources in the DRC, providing a critique of the development framework known as integrated landscape management and casting light on a 2014 decree which enables a Forestry Law passed in 2002 to create a legal framework for community owned and managed forest areas in which communities are able to apply for customary ownership rights on forest areas not exceeding 50,000 ha.
Ian has also been very active on the pages focusing on Tanzania, Zambia, Zimbabwe and Malawi. Tanzania is the one country among the SADC member states where traditional leadership was banned in the 1960s and has never been reinstated. Ian provides a detailed post reporting on the findings of a 2015 Parliamentary Select Committee report in Tanzania which found that:
Ian highlights how in terms of the 1999 Land Act in Tanzania certificates of customary right of occupancy were issued on 162 000 hectares of land to the pastoralist Maasai, Barbaig and Hadzabe. He highlights how subsequently the processes of “neoliberal enforced development involving land evictions” had highlighted the precarious nature of pastoralist land rights in the face of 'fortress conservation' programmes in the Ngorongoro conservation area.
Where to next?
While the country pages have provided a means to focus on particular local issues there is also a risk that they can fragment the discussion. For the second week of discussion starting on Monday we plan to bring all the participants back to a single plenary space. The country pages will remain open over the weekend before becoming ‘read only’ first thing on Monday morning.
All online conversation in Week two will be recorded on this page.
Next week we plan to look at three big questions:
So, just to signal my complete agreement with Siyabu, who makes an extremely important point. The approach in Mozambique is perhaps a good example of how to go some way towards avoiding this, and other, conceptual traps. So the Mozambican legal framework is strong on recognising 'customary' rather than 'traditional', refers to 'norms and practises' rather than 'law', and provides space for the agency of customary institutions without this being linked to the institution of 'chieftancy'. This has helped to focus the debates on the real challenges of recognising legal plurality and what that means, without getting too diverted by the politics of how much power the 'chiefs' should wield.
ALLAN CAIN
Development Workshop Angola
Statutory vs Customary Land Rights
Angola is a post-war country, with weak land tenure legislation and limited local government management capacity. More than 62 percent of the population live in urban and peri-urban areas and are increasing and putting pressure on land and services. Much of the population in these areas lives in informal settlements with insecure land tenure under the threat of forced evictions. Land conflict is an issue affecting urban, rural and peri-urban areas. Poor communities affected by the expansion of cities and towns are particularly vulnerable. Of these, women are the most vulnerable. Access to land is a matter of survival, for those who’s only income and accumulated assets are drawn from their land. More than half of families depend on informal sector activities to sustain themselves. Securing rights to land and housing assets are important to livelihoods of women headed households by permitting access to financing that they require to grow their enterprises as well as for incrementally upgrading their housing.
The post-socialist inheritance has left the State as the formal owner of all land. In practice however there is an active informal land market, large scale-land grabs by urban elites, and increasing conflicts affecting communities, small holders and families, particularly those headed by women. While the existing land law recognizes customary land use (residential, traditional agriculture and access to water) customary traditions are practiced in the various regions and cultures of the country, women’s rights of ownership and inheritance are weakly protected and are often unrecognised.
The formal statutory systems governing land rights and transactions in Angola are more favourable to women than in many African countries, but they are not yet fully realized and implemented in practice. As it emerged from almost 30 years of civil war, Angola enacted legislation that articulates principles of non-discrimination and gender equity. A progressive family law proactively provides for the rights of women in common law marriages and the inheritance rights of daughters. However, despite the mandates of the formal law, customary laws and traditional practices prevail. Those customary laws and practices mostly favour men, and men dominate Angola’s political, economic, and social spheres. the majority of Angolan women remain trapped with a lack of assets, illiteracy, limited economic opportunities, and the need to care for children and relatives. Land rights provide a critical asset to all women regardless of their circumstances but most particularly those with the fewest options. The Government of Angola’s current land and decentralization reforms provide an opportunity to design a strategy for protecting and improving women’s rights to land and livelihoods potential.
Despite constitutional provisions, all citizens are not equal in practice before the law, due to inadequate information, limited resources, and weak local administrative systems. Traditional authorities, such as local chiefs (sobas) are often the only administrators, mediators, and adjudicators of land rights that women will ever encounter. Less than one percent of the traditional chiefs are women. These individuals and local institutions of governance and dispute resolution generally apply customary law and local practice to guide decisions regarding land rights. Under traditional succession practices, Angolan women generally do not have land access equal to men‘s, as family land passes to sons and male relatives of the deceased husband. Women generally move to her husband’s house upon marriage and often live on and cultivate land owned by the husband‘s family or granted by the family or soba (traditional authority) to the husband. If the women are subsequently widowed, abandoned, or divorced, the former husband or relatives of the husband may force the women from the husband‘s land and home.
The inheritance practices upon which customary law in Angola are based are often discriminatory towards women. However, women are responsible for generating income, from informal trading or cultivation providing for household food security, and raising children and caring for the ill and elderly. The proportion of women heads of household continues to grow. 34.5% of households and 46% of per-urban slum households are headed by women . They also form the majority of those families living in extreme poverty. The problem of poverty within communities is also a result of inability to develop alternative ways to generate income. More than half of families depend on informal sector activities to sustain themselves. Assisting women to explore alternative and improved income generating opportunities that may contribute diversify their income sources, providing them with knowledge to access financial services, as well as facilitating their access to loans for investing in their small businesses, will contribute to improve their abilities to increase their possibilities to reach economical independence for themselves and for their families. Land tenure security is important for securing credit for poor families and women-headed households.
In the central plateau of Angola, the implementation of national policies respecting women’s rights remains incomplete (specifically for small holdings and peri-urban occupations). The practice of the existing customary system are still widely observed specifically, territories are administered under the leadership of traditional leaders, the “Sobas” (at Ombala level, a kind of a traditional district) and of the “Seculos” (at community level).
Past land reform programmes, together with the break-up of communal land holdings, have led to the transfer of exclusive land rights to males as heads of households. This ignores both the existence of female-headed households and the rights of married women to a joint share. However women, living in the customary law system, are often unaware of their statutory rights. Poor access to information also contributes to the lack of knowledge by citizens of their rights. By providing adequate and better information to women about their rights and access to land, as well as providing knowledge on land rights to the communities where they are included, will result in an increased awareness among women of their right to equally access and control land and housing.
Land Conflicts
Angola’s four decades of armed conflict were characterized by land expropriation, forced removals, resettlement, and the massive internal displacement of rural and urban populations. Prior to independence Portuguese colonial settlers had appropriated over 40% of registered land and denied African occupation of much of the remaining forested and reserve land. During the civil war after independence in 1975, warring parties used forced removals of populations from their lands as tools of war (Cain 2012 p.173). Since the end of the war in 2002, the reintegration of politically divided populations and ex-combatants—was linked to access to land that became a primary factor in social reconstruction. However post-war land legislation did not provide the opportunity for Angolan peasants and communities to register their properties or gain restitution for their lands that had been expropriated during the colonial settlers’ landgrab. The government distributed the equivalent of 50 percent of the land held by commercial farmers in colonial times to a small number of mainly urban-based absentee owners, who paid insignificant prices for secure tenure rights in order to eventually exploit these lands commercially. As happened in colonial times, the modern commercial sector was allocated an excess of underused land, which was set aside by the new owners for possible future use or speculation. Local peasant farmers, on the other hand, were treated by the Angolan state much like they had been treated under the colonial regime (Pacheco 2002). They were left with small, often scattered parcels of land divided between tiny irrigated garden plots and less fertile, seasonally used lavras (plowed plots) for staple crops. Post-war legislation made no provision for existing or previous possession or occupants’ rights (usucapiao) by which property rights may be acquired through continued use over time. Therefore the main driving force for the rapid return of rural IDPs to their areas of origin was their need to reclaim family lands and the fear of finding it staked out by an intruder or usurper often holding title deeds issued by a government official. Resettlement of IDPs, excombatants, and returning refugees produced innumerable local conflicts over land allocation, often resulting in clashing interests between the returnees and those who had stayed behind in their areas of origin. The role of traditional authority in land management had been eroded through the years of colonial rule and civil war. However, the return and resettlement of almost 3 million people to their rural areas of origin provided a renewed role for traditional leaders in dealing with local land conflicts and providing testimony regarding families’ historical land claims.
Disagreements over land became more frequent as the scramble for land between powerful commercial interests and peasants threatened evictions of families who had fled the conflict-ravaged countryside to make homes on land without sufficient legal title. In rural communities, fertile agricultural land with relatively easy access to urban markets was in high demand. These sites frequently became the focus of disputes between residents and returning IDPs as well as more powerful commercial interests.
A recent diagnostic study carried out in Huambo province in Angola’s Central Highlands revealed that 75% of the peasant small holders said that they do not see any benefit from the commercial farms near the communities. Only 1% of respondents mentioned any benefit from commercial exchanges between the community and the commercial farmers and no-one reported that the proximity of commercial farms brought the community any improvement in access to services like water and electricity. Approximately 10% of small-holder respondents said that because many farms were acquired through forced expropriation of community lands they felt threatened by the presence of commercial farmers in their neighborhoods and that with the passage of time they feared conflicts which could lead to the further expropriation of local community’s lands.
Land conflict is an issue affecting urban, rural and peri-urban areas. In urban areas the poor risked being uprooted from their homes because their sprawling musseques frequently occupied ideal locations for elite housing developments, offices, and roads. Poor communities affected by the expansion of cities and towns are particularly vulnerable. Of these, women, elderly and people living with disabilities are the most vulnerable. Access to land is a matter of survival, for those who’s only income and accumulated assets are drawn from their land.
Advocacy and Public Policy Reform
Angola is currently undertaking major governance reforms to empower municipalities with elected local councils. A key to municipalisation will entail decentralising the management of land. It will be necessary to build the capacity of local administrations and local communities to strengthen family land tenure and protect the rights women. If the poor majority are to be the primary beneficiaries of land tenure reform, the design of tools for managing land rights must take this into account. Poorer groups will have more effective access to such procedures where they receive clear information about how the system is meant to operate, and where the local government institutions responsible are located close by, working in local languages using tools of mapping and recording, including accepting oral testimonies as evidence to support claims. Effective and responsive judicial and land administration systems which are accessible to poor people and vulnerable groups are therefore crucial components of successful, pro-poor land policy reform. Development Workshop is working at the public policy level with the Government’s National Land Commission developing a land policy reform that aims to address contradictions between formal, informal and customary tenure, which have lead to conflicts and inefficiencies. Women status in traditional rules is one area of contradiction that needs to be addressed.
Women have a lower level of knowledge about their land rights compared to men with the exception of the 15-17 age group. The recent study in Huambo province (Development Workshop 2018) revealed that of the men interviewed aged 18-25, 20% said they were aware of the existence of the land law, and only 15% of women respondents claimed to have knowledge about the law. The percentage difference between men and women over the age of 36 was 20% (see Figure 1).
Current Angolan municipalisation reforms present a unique opportunity to affect local practice on how community and individual land-holder tenure is administered and protected. The Ministry for Territorial Administration and the Ministry of Planning and Housing is developing a set of land-management and mapping tools for the use by local municipal administrations. The tools employ the principal of “social domain tenure” (STDM) promoted by the UN’s Global Land Tools Network GLTN, Participatory Inclusive Land Readjustment (PILaR) and rapid gender tenure assessments.
The protection of gender rights should be rolled out in the new municipal government reforms to be implemented across Angola. These reforms involve the election of municipal councils Autarquias. The raising of public awareness about the rights of women to equal access to assets such as land, housing and means of livelihoods will ensure that these issues are protected at the local government level.
Advocacy work is required by civil society organizations to combat gender inequality, to promote the status of women with a focus on cultural change particularly in communities where customary land traditions are still strong. Raising the awareness on the existing legal framework and rights of access to the land, housing and livelihoods, particularly for women, is a way to provide them with the tools to protect themselves against unfavourable rules set by customary practice and against land-grabs by urban elites. Women are too often discriminated against in terms of access and land tenure, although they are the ones who are mostly linked to the tasks of cultivating the land. Land conflicts are most often mediated by traditional leaders (see Figure 2) rather than government authorities who are more knowledgeable about legal rights. The encroachment by commercial real-estate developers and expropriation for plantation farming and mono-cropping limit further their access to land. Providing them with the information on their statutory land rights can contribute to safeguarding their tenure.
A participative framework for planning the use of land needs to be promoted, with the purpose to accommodate the diverse interests of different groups using the land, thereby preventing potential conflicts. Small-holder and family agricultural production still ensures food security for most communities and in the country as a whole. The political buy-in of municipal authorities and the involvement of local community organizations and farmers associations, will be key. By raising the general awareness about the civic rights of women in the community, and the importance of protecting them for general development the local decision makers need to be influenced to embrace more inclusive customary rules, free of gender discriminatory principles.
Angola is undertaking a major devolution of power and decision-making to municipalities . Civil society has advocated for strong participatory governance reforms. The adoption of participatory gender-sensitive land management tools can have a strong platform for implementation. The capacity of the structures in charge of implementing legislation, land management and arbitration of conflicts needs to be reinforced. Land use planning is currently an activity that lacks coordination among the different institutions at national, provincial, and local level, without clear limits of intervention among them. There is also limitation in terms of skilled human resources capable to provide technically adequate rules for this activity. As a result land grabbing and occupation from powerful groups result often in misappropriation of community land, affecting vulnerable people, among them women. The new elected municipal councils will be required to deal with conflicts resulting from land use and property and find consensual solutions.
Co-production with communities and local government
Co-production of knowledge on land tenure involving participation of communities and local government will require collaboration between municipal administrations and local community associations who are being trained in the use of participatory mapping tools (STDM). Data collected and the land tenure mapping produced is co-owned by the Municipalities and the community associations who engage in its production. The participatory diagnosis will be carried out after the training of local administrations and civil society. “Data ownership” means: the authority to allow or deny access to the data, and the responsibility for the data’s accuracy, integrity, and timeliness. The “cadastre” produced provides evidence of legitimate and verifiable land occupation that significantly improves legal tenure.
Women often lack knowledge of their legal rights, including their land rights, marital property rights, and inheritance rights. Similarly local authorities often do not have clear knowledge of statutory rights and may have a weak understanding of the situation related to land issues in their areas of jurisdiction. There is a general lack knowledge of the land law, regulations, and procedures for implementing the laws, including the formalization of land rights and granting of concessions. The strategy to support women’s rights to land should be linked with providing training on the laws impacting land rights (both formal and customary) and do institutional capacity building for the new municipal administrations. It is hoped that women’s participation in elected decision-making bodies will support efforts to strengthen women’s rights.
Land use planning and management is better addressed when there is the involvement of the different institutions in a concerted manner. Innovative co-participation engaging local government and traditional / customary leaders, the private sector, local associative groups, communities, will result in a participative way to approach and find solutions to the existing problems. Together with seeking experiences and lessons learned and shared at regional level or in other countries, will contribute to increase capacity of local networks to engage in and benefit from global and regional networks and knowledge sharing that supports land opportunities for rural women and men.
Recommendations:
There is a need for the inclusion of a co-ownership clause into Angolan the Land Law. Co-ownership of land between spouses and/or family members is an important principal of land reform. (South Africa and Tanzania that have enacted legislation requiring land co-ownership by married couples)
Development Workshop’s research provides evidence of the proportion of women-headed households in peri-urban areas (over 46% in slum areas of Luanda). Women’s land rights be reinforced and for land legislation to be brought into compliance with Angolan law. The equal rights of men and women to assets and resources, as supported by the Constitution of the Republic of Angola and the Family Code of Angola, extend to rights of land access and land tenure security (the Family Code, 1989). Marriage is defined in the Family Code and includes registered unions and de facto unions as set forth in Titles III-IV of the Family Code. Pursuant to the principles contained in the Constitution and Family Code, spouses in a marriage, whether a registered or in a de facto union, are presumed to have equal rights to the land and any buildings that they occupy, and the burden is on the spouse claiming otherwise to provide evidence of the claim. It is therefore necessary to create specific land protection programs for women, without neglecting the sources of facilitated access and recording of women's information. In addition, it is recommended to introduce in all registration and titling processes a requirement to include the wife's or partner’s name (conventional or traditional marriage) since the owners, man and woman share the same roof.
There is a need to eliminate sources of legal discrimination against women, ethnic and religious minorities, and other disadvantaged groups in economic matters. This includes de facto, as well as, de jure discrimination; this includes efforts to ensure equal rights for women in key economic areas such as land ownership and inheritance. Where the property rights adversely impacted are held by a married couple, whether in a registered or de facto union, payment of cash compensation shall be made jointly to the wife and husband. If the couple elects in-kind compensation, the title to the property transferred shall be in the names of both spouses.
Recommendations to improve women’s land rights in Angola include: implementing legislative and policy reform to remove legal constraints on women’s rights to land, promoting public information and awareness on women’s constraints and opportunities to land access, ensuring the participation of women in the land rights formalization and adjudication processes, and putting in place monitoring and enforcement systems to ensure that land rights formalization efforts successfully recognize and document women’s land rights, as well as enforce those rights.
Conclusions:
Angola has inherited a varied and complex set of landholding and land use practices, the evolution of which has been influenced by customary and cultural traditions, the colonial past, years of conflict and forced migrations, massive urbanization, and the socioeconomic development of the nation. From colonial times until the recent end of the conflict, Angolan legislators have demonstrated a consistent tendency to contain or circumscribe the land rights of the country’s rural and poor peri-urban populations and to direct land resources to the hands of a few, while at various times supporting the development of commercial farming and mineral extraction (Clover 2005).
The incorporation of international norms of good practice of civic and gender rights into Angolan legislation can result in real improvements in procedures for managing land and protecting the tenure rights of women and small-holders. The introduction of the concepts of public consultation and participatory planning in the post-war public discourse may have influenced the inclusion of these concepts in the land and planning laws. Public consultation on the 2004 Land Law was the first opportunity to lobby for the application of rights-based legislation. Angolan civil society advocates for the promotion of land tenure rights for women and the protection of the urban and rural poor against arbitrary and forced removals. Land has become a political issue debated in the parliament and is influencing the platforms of political parties. Opportunities are increasing for civil society and community representatives to employ emerging local spaces such as municipal forums and consultative councils in order to bring the debate on land rights into the public arena. Land issues are likely to be high on the agenda of elected municipal councils when they are instituted after the first local governmental elections in 2020 and the constitution of municipalities with decentralized authority and budgets.
Debates about customary law in South Africa are driven by highly idealised, essentialist or ideological concerns. This is a response to extremely politicised concerns about rights, gender and traditional leadership or chiefs. These issues reflect political struggles, struggles around local power and the enforcement of Constitutional rights. The discourse is usually led by land activists or advocates of change. However, we should be mindful of developing more rigorous understanding of 'how we got here' to avoid the traps of reproducing an idealised notion of customary law or customary rights or living law that, though unintended, sets the scene for a goodies and baddies scenario. The disappointments of what some call 'elite capture' is then distilled into an idea that what we are seeing now is not 'the real customary law' but some madness or corruption that is driving these power brokers; that somehow miscreants who do not represent the 'real customary law' have captured it and are betraying custom. This is simply an extension of the idea that there was in the past 'real customary law' that got 'distorted' by colonial regimes. This is foggy thinking which may serve ideological ends in helping to position 'good' customary law alongside state law on an equal footing, as the Constitution demands, but does little to help us build strong governance institutions based on a sober understanding of the power struggles in the present, and which will continue in the future and forever more. This requires a grasp of the present moment based on a sober reflection of the past and its legacies, rather than harping to an idealised past. The latter only lends itself to further disappointments, since the geo-spatial world is in a constant process of motion as it interweaves with political movements. To extrapolate the past based on present systems of governance and a ‘rights' discourse without any empirical evidence to back it up, provides us with a simplistic notion that in the past customary law was good, then it was highjacked by the colonial settlers and their minority regimes and now it is again under threat of further distortion by patriarchs, elites or chiefs.
To go back to basics: firstly, on the question of rights, and this applies to gender too. The political economies of pre-colonial societies in sub-Saharan Africa were not based on a shortage of land, and there was no need for 'rights to land'. Labour was the key factor of production and women provided the labour. Their status in society must be measured accordingly and according to the structure of kinship which was and still is different from kinship systems in the western world. As my colleague, Siyabu Manona, rightly asserts, there are the “more important institutions of customary such as marriage, inheritance and succession, which are centred around family, lineage and clan scales” in which chiefs and traditional leaders play virtually no role. Family law is part of customary law and much of happens outside of chiefship powers.
However to say that women should have equal rights based on 'real' customary law because in the past women had 'rights' to land is fallacious thinking. To achieve equal rights to land for men and women (and other gender categories), we must develop a sound understanding of the political economy of the present, and why 'rights to land' has become a central tenet of access to land in the present. The same general argument applies to rights-based land law in general. The Constitution is a twenty first century institution and it represent a set of values, but not all of them are reflected in our systems of governance.
Secondly, there was no concept of 'customary law' in the pre-colonial past. The very term 'customary law' was invented by colonial authorities as should be abundantly evident in nineteenth century colonial commissions and laws regarding 'customary law'. Of course the various colonial regimes filtered custom and customary law through the eyes of contemporary master-servant relationships and ideas about civilisation, and later through capitalist relations of production. White minority regimes co-opted many African power structures into the structure of customary law in the twentieth century along the road of segregation and apartheid. That does not mean the concept has no validity in modern day democracy. It has shown itself to be a rallying call for African values. It has been resurrected as part of the struggle to reconstitute customary norms and values and to find a place for these values in the Constitutional dispensation.
I fully agree with Siyabu Manona when he writes that "[s]ome of the [post-colonial] context complexities arise from poor appreciation and understanding of indigenous values, as well as how those can be mainstreamed into state led policy processes". The issue is about how to restructure the current systems of governance to provide a framework to enforce rights and responsibilities in the present. That will involve, again, to quote Siyabu, "[p]olicy debates should be about a cross-spectrum of institutions of customary law, hybridisation approaches, procedures and principles for ascertainment, etc [to meet the] challenges in Southern Africa [that] are essentially about managing dual legal systems within a single polity". I would prefer the word 'hybrid' or ‘legal pluralism’ to 'dual' but be that as it may, if we built a unified system to meet the norms and values of the people of South Africa, the role of chiefs would be automatically be cut down to size, as their role in land governance would wither away as a unified state governance system develops capacity and infrastructure to provide equal services to all. The state would not require the land administration services of chiefs if state land governance was restructured. Chiefs have burned their way into political power structures and these will not disappear with court judgments and outcries alone. They will only be diluted if the polity itself is unified under more uniform systems of land governance that recognises customary norms and values. To achieve this requires rigorous analysis of the state and the struture of our society to find a pathway for inserting land governance and land adminisration reform processes into it.
Customary law and institutions are often the most accessible and available remedies for vulnerable rural women and men facing land rights violations in Southern Africa. However, it is also true that without adequate and proper oversight and accountability mechanisms in place, the same laws and institutions can lead to violation of the same rights. It is important that instead of outrightly dismissing these laws and institutions, we acknowledge their benefits and positive aspects and align them with constitutional and human rights imperatives. Once that alignment in law and policy is done, the responsible traditional authorities would need training on these principles and support through properly positioned state institutions.
One good practice at customary law in Southern Africa is that traditional leaders make decisions through a consultative process and often have an inner council to provide advice and help with decision-making. This should be re-purposed to ensure that the inner council includes people with approriate knowledge in human rights, including land rights to advice the traditional authorities. This can assist in removing arbitrariness in decision-making but also in guarding against corruption and abuse of authority as decision-making will not be concentrated in one individual. The SADC region should therefore use the positive aspects of customary law and institutions in coming up with a land policy.
In addition, the increasing use or abuse of traditional authorities for political ends needs to be addressed. This has contributed to authoritarianism by traditional authorities who feel that governments are indebted to them for helping them stay in power and they in turn abuse their power when dealing with issues affecting local populations such as land rights. Constitutions and laws in SADC must therefore provide that traditional leaders must be non-partisan and must not align with political parties.