Part 3.1 – Challenges of land management: a laboratory of normative pluralism / Synthesis of the debate
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The question is not “how to change the value or, are the values changing, but what is the value judgment [underlying] it, and which is attached to those practices by African people” (Dr. Emmanuel Tshikwatamba).
The third session of the Colloquium was dedicated to the concrete analyses of the articulations of the diverse sources of legitimacy through the land management issue. As a matter of fact, during the first and the second session participants analysed the very nature and type of three (four with constitutions) sources of legitimacy. Session two, indeed, had already opened the discussions on the coexistence and the articulation of different types of legitimacy due to the very particular nature of constitutions, being at the same time a source of legitimacy by themselves and a driver of articulation of the diverse sources of legitimacy.
In order to better understand and discuss the reality, a field trip was organized in the afternoon before session 3. This field trip aimed at meeting some of the authorities in charge of land management in the area of Polokwane, in this case, the Chief and the Mayor of the Municipality of Polokwane. As a matter of fact, because of last minute shift in the order of the agenda, (the group was asked to meet firstly the traditional authorities and secondly the Mayor), it was impossible to hold the expecting meeting in the City Hall, as the group was too late, still attending the meeting, and following the protocol in the traditional office (kraal). This was an opportunity for the participants to experiment GaMothiba’s Traditional governance.
Both events, the field trip and session 3, underlined that in spite of the apparent consensus on the modern legitimacy (through recognition and integration within state regulation) of tradition and traditional leadership, its concrete linkage with the so-called modern authorities is not so easy. Reality is characterized by: a lack of trust and common understanding on the roles of municipalities and tradition; a lack of common interpretation of the rules governing land management; contradictions and policy shifts on land management and its under utilisation because of skills shortage, resource, state subsidies, corruption, etc. Practical reflections on the functionality of the current institutional environment in South Africa joined considerations on historic and prospective modes of land management. Participants brought in critiques of regional land administration methodologies. We were reminded that land is an asset, and was a source of conflict even before colonisation when tribes fought over grazing lands. Participants showed that even the Scramble for Africa was about land. It was further presented that land was dispossessed from the indigenous people by colonisers and it became one of the sources of the armed struggles in some of the African countries. The confiscation process differed from country to country, from legislation to war. The discussion around the current situation on land management within the sub-region highlighted its diversity from one country to another.
Land management all over the world and particularly in Africa, is both a very sensitive issue and a fantastic laboratory of legal pluralism. What are the roles of authorities and sets of norms regarding land management for each source of legitimacy? Is there coexistence, hybridization and/or embeddedness of different sources of legitimacy? Land management is a symbolic field where different actors claim different sources of legitimacy, develop different logics, and where the questions of access, ownership and entitlement are particularly sensitive because they reflect differences between values and représentation in which these practices are rooted. All this tension appeared inthe colloquium when, for instance, the participants pointed out the existing gap between an often over-abundant legislation, originating in the historic mission of liberation movements to gain access to land, and its implementation. Analyzing more concretely the public management of land rapidly shows that coexistence and articulations between these different regulation systems are not so easy since they are rooted in values and interests that might not converge or complement each other.
The context of a non easy coexistence of the diverse sets of norms.
The difference between private property and economic targets on the one hand, and the collective use of land on the other, were core issues discussed during this session. Situating current land reform in controversies in the history of colonial dispossession, Dr. Emmanuel Tshikwatamba contended that contemporary government has continued these practices through adoption of western rational-legal governance structures which are driving current land policies and use of power. The creation of hierarchical ownership structures privileging title holding over other rights to land, he asserts, has nullified access to multi-level overlapping land use rights which had evolved to better administer the totality of community needs with regard to land. Dr. Emmanuel Tshikwatamba argues that the corporate ownership models now being promoted do not adequately embody the communitarian principles of collective management by focusing only on group ownership rather than truly reflecting the Ubuntu ideology. He pointed out a difference between cultural conceptions of ownership and identity stemming from traditional forms of regulation: “According to collectivism, the other is no other than me, it is harmony. In modern societies, the other is not me”. While a chief would say, “I am not different from my people and there is no difference between my and their land”, these concepts pose difficulty in a juridical framework oriented towards private ownership. In a response to critics who have seen Afrocentric land tenure as analogous to forceful restoration of land, Tshikwatamba rejects forceful repossession of land as a colonial, non-customary practice, instead advocating redistribution through the legitimate exercise of customary powers.
Kgoši Makgeru, discussing current land reform initiatives including the Communal Land Rights Act (CLRA) and the Land Management Bill in South Africa, noted that only limited land is held by indigenous communities. He reported that current instruments restrict bargaining rights against powerful mining interests and are still inadequate to equalize opportunity of land use. In his remarks, Phillan Zamchiya addressed the land privatization process in the region, which has been closely linked with redistribution planning. High expectations for large scale redistribution in Namibia, Zimbabwe and South Africa at the time of independence have been met with slow, small-scale initiatives, as governments facing daunting degrees of land inequity prioritized the health of land markets and ownership rights. He raised concerns about the reinvigoration of titling by De Soto’s popular formalization of property rights programs, and the possibility of large-scale foreclosures and distress sales. Challenging the utility of such capital formation programs, Phillan Zamchiya noted the impracticably high costs of titling and surveying, and questioned the benefit of titling for the poor, whose livelihood strategies are frequently reliant on common land. He cited the example of Kenya, which since initiating titling programs in the 1950s has seen increased land ownership by those with access to the political system; decreased land rights for those who rely on the social system, including women; and increases in landlessness, land disputes and speculation.
In this context, the debates also highlighted the tendency for some actors to wish traditional regulation to have more importance in land management. The traditional chiefs asked for more formal power as they are convinced that their greater proximity to the population enables them to be more efficient. From this perspective, some of the participants insisted on the importance of taking into account the deeply rooted tradition of the collective and participatory management of land in southern Africa. Some of them directly expressed the value of traditional management of land because the land has always been the property of the people and that the traditional leaders presided over the land on behalf of the people. From this perspective, Emmanuel Tshikwatamba argues for participatory land management within a larger communitarian approach and for a revitalization of customary governance of land.
The need for more cooperation between the diverse authorities: which articulations?
The debates clearly brought out and expressed the more general issue of the necessity of a concrete cooperation between the state and the traditional regulation system and authorities, and this, despite the existing gap between the values each one represents. Emmanuel Tshikwatamba and Kgoši Makgeru shared views on the need for cooperation between traditional leaders and elected officials, in consideration of their now interrelated roles in the custodianship of land and the distribution of resources for economic development, going further to recommend knowledge transfer from traditional leaders to guide governance and land management reforms. Several initiatives were mentioned as being good examples of what can be done in order to better link up diverse authorities.
Kgoši Makgeru advocated collective land management to permit effective collaboration by the array of actors and governmental departments now charged with land administration. Currently the Departments of Land Affairs, Agriculture, Provincial and Local Governance, and Housing are all charged with working together with local municipalities and traditional councils. From a vantage point of view, the perspective of a traditional leader active in Provincial-level activities, on the dysfunctions of the current system, is illuminating: in the absence of common understanding and clear definition of the roles of these stakeholders, communities are not beneficiaries, and a better collaboration is possible. He attributed delays in the implementation of CLRA to its low legislative priority, despite strong support among traditional leaders. Nevertheless, rather than the retreat of the state from the local, he spoke of the possibility of collective management not at the community level, but among the administrative stakeholders. Reflecting his access to the solidarity of traditional leaders in the region, he observed that these communities see themselves, rather than the state, as the legitimate owners of the land, but currently lack the capacity to act on an equal footing with the central government. Because municipalities serve to distribute resources over areas effectively governed by traditional leaders, a common vision on development strategy has become essential. He observed that reconciliation of traditional identities and cultural practices with the new Constitution will take time, yet remains a bright prospect for effective local governance.
Phillan Zamchiya explained why for him CLRA could be a move for South Africa to secure rights for the poor, providing space for traditional leaders to serve on Land Administration Committees, as well as safeguards for those who do not want their land rights mediated by traditional leaders. Some examples have to be taken within the sub-region. Notably in Botswana and Lesotho, where they have used variants of land administration boards to avoid personal allocation to individuals by chiefs, while maintaining many principles of customary tenure. Botswana’s locally elected land boards have increased the information available to the state about land in rural areas without the costs of large-scale surveying, and have contributed significantly to rural land planning through customary tenure systems. Lesotho’s popularly elected land advisory boards provide an advisory function to chiefs, intended to echo traditional community roles. In both systems, freehold is unavailable in the areas served by the boards, and does not conflict with privatization scheme.
Emmanuel Tshikwatamba emphasized the redistributive properties of a prototypical African and tenure system, finding improved management, greater socio-economic stability, and adaptability in a communitarian system, which permits ‘multiple access’ possibilities for members. Through reative empowerment, flexibility, and shared accountability, group identity is enhanced, with customary allocation of land bearing longer-term benefit for the larger community than a single-period exchange of money between individuals. He argues for a more democratic reading of the tenets of traditional leadership, expanding notions of power beyond control and coercion to creative and mutually-determined empowerment and argues for the value of a spiritual leadership better aligned with the economic and social realities of the population. He sees the establishment of the Provincial Houses of Traditional Leaders as positive national-level recognition of the traditional land governance mechanisms, a challenge to chronic de-legitimization of unelected leaders by proponents of electoral democracy.
From this session dedicated to land management came out the need for “further examination of African management principles (…), rather than cosmetic inclusion of these concepts in a framework of western principles” (Dr. Tshikwatamba). From this point of view, analysis of the third session confirmed that of the session on Constitutions. But, during this last session, an additional step was reached in the comprehension of the hybridization process of sources of legitimacy. One main issue is that it is not only the values represented by one source of legitimacy that has to be taken into account, but the “value judgment underlying (the practice of this source of legitimacy) it, and which is attached to those practices by African people” (Dr. Tshikwatamba). These symbolic expectations of people are part of the drivers of hybridization dynamics.