Part 3.3 – Challenges of land management: a laboratory of normative pluralism / Tenurial reform in the context of southern africa Constraints and opportunities
Table of content
By Phillan Zamichia
Programme For Land And Agrarian Studies - PLAAS University of the Western Cape’s School of Government South Africa
Land reform refers to the redistribution and or confirmation of rights in land for the benefit of the poor (Adams 2000:1). In this context, land reform includes both: tenurial reform, which ‘concerns the terms on which the operational holding is held and worked and transacted (Byres 2004:3), and redistributive land reform, which ‘seeks to redistribute operational holdings, taking land from those with large operational holdings and transferring it to either those with no land at all…or those with tiny holdings…’ (Byres 2004:3). The need for both tenurial and redistributive land reform is evident in Southern Africa, given the unequal distribution of the resource. For example, in South Africa about 65 000 white farmers own about 80 per cent of the agricultural land whereas in Namibia about 4 000 white settler freeholders own 6 400 farms with an average of 5 700 hectares each (Moyo 2007). In Zimbabwe, until year 2000, about 4 500 whites (0.03 per cent of the Zimbabwean population) owned about 42 % of the prime agricultural land (Moyo 2007).
Southern Africa landscape
Most of the land in Sub Saharan Africa can be divided into two broad categories: The holding and the commons. The holding is used exclusively by individuals or households for various purposes that include housing, agricultural production or other entrepreneurial activities (Adams, Sibanda and Turner 1999). On the other hand the commons refer to land used and shared by multiple users for livelihood activities that include grazing and gathering veld products (Adams, Sibanda and Turner 1999). According to Deininger (2003) and Chimhowu and Woodhouse (2006), between 2-10 per cent of land in Sub Saharan Africa is held under freehold title. The remaining 90 per cent is held under communal or customary tenure. This shows that access to land in the largest proportion of Sub Sahara Africa is determined through the indigenous systems of land tenure (Chimhowu and Woodhouse 2006).
What type of tenure reform?
Most scholars generally agree that land tenure reform underpins any successful land and agrarian reform programme. However the key debate amongst scholars and policy makers has been: what type of tenure reform is well suited for Africa? This debate over tenurial reform largely focuses on the merits of converting informal traditional systems of communal rights into “modern” formal systems by a process of land adjudication and individual titling (Adams 2000).
Free market theories predict that agricultural growth will follow formalisation of land rights. De Soto (2000) 1 argues that prevailing poverty in Africa results from the failure of governing institutions to follow the legal property system of Western capitalism. De Soto (2000) asserts that the solution to tenurial reform, which seeks to improve productivity and the economy, stems from the need to integrate land held under the commons2 and formally into one property system as happened in the Western world. He argues for land titling in that it will “unlock the hidden assets of the poor”. Free market theories have influenced policy makers to such an extent that the United Nations Development Programme (UNDP) established a high-level commission on the legal empowerment of the poor which was launched in 2005 and De Soto is the co-chair. Dorner (1992); Rukuni and Jensen (2003) demystify the mythologies of America and provide a more convincing argument on why private land rights in western world have proved to be innovative:
“It is not very helpful, nor is it accurate to say that private property and enterprise made the United States great and that this is what the United States has to offer in the struggle for economic development around the world. In fact, it is our open and flexible political system that has allowed us to make private enterprise within the United States consistent with the general public interest, as Marx thought it would never be. However, there is no reason to expect that private enterprise will automatically function in the public interest in a system lacking political institutions” (Dorner 1992:10 cited in Rukuni and Jensen 2003:255).
The case for private titling
Critics of customary tenure argue that this system of land use provides poor incentives for farmers who use the land (Hudson 1996, De Soto 2000). To them, land held under these conditions is closely associated with cultural non-monetary values. The underlying philosophy is that individual land titling programmes provide farmers with security in land holding and enable the farmers to employ higher levels of agricultural investment and productivity. This would provide a firm basis for phenomenal economic growth and development for most African economies. How? Private titling promotes lending to the poor from banks through the use of land as collateral. Will banks open up credit for the poor? Banks often do not lend to the poor because of the risks of non-payment. Households earning less than US 500 per month are unlikely to get access to formal credit from banks using land or houses as collateral, whether or not their properties are formalized (Cousins et al 2005). If government policy can convince banks to lend to the poor, with the poor’s assets as collateral for the loans, foreclosure of bank loans would result in asset stripping of sources of livelihood. This may even result in homelessness amongst the poor (Cousins et al 2005).
Another argument by free market theorists, that formalization will give the land the character of capital, is largely debatable. Recent empirical evidence shows the existence of rural land sales and rental markets well suited to the needs of the poor (Cousins 2005 et al; Chimhowu and Woodhouse 2006). This challenges the dead capital characterization of informal property systems.
One severe shock can result in permanent loss of livelihoods among the poor through the sale of land and it will be sold below market value.
Formalization can be expensive for many poor people. There is a correlation between the registration of title deeds and service delivery systems. Once the boundaries have been surveyed and formal plans prepared, then the local government becomes active in the management of the centralised property. This means that the poor will have to fork out money for services, and the rates remain a recurrent cost, which may be unaffordable for many poor people. Apart from the costs, the formal land use plans may not reflect practice on the ground; shared rights are a common feature of most communal areas, and in times of distress the poor rely on the open access or the commons for a living (Alcock and Hornby 2004).
Land titling: The evidence from elsewhere
There is no clear evidence to show that land titling has led to more efficient use of customary land or greater agricultural growth (Bruce 1986; Migot-Adholla et al 1991; Okoth-Ogendo 1982). In Kenya, the Swynnerton plan aimed to provide an individualized tenure system. However, results on the ground show increased concentration of land ownership amongst those who are in a position to manipulate the registration system. There is now diminished security of tenure for non title-holders who relied on social practices to get access to land (Quan 2000). Kenya’s experiences with private titling show that the livelihood insecurity of women, children and landless poor farmers has been exacerbated (Quan 2000). There is increased landlessness amongst the vulnerable through sales of land resulting in growing trends of rural-urban migration. In some cases there have been increased disputes over land use management since individual title deeds are imposed on multiple user rights.
In areas of the Malian cotton zone where land is being converted into private title, the process has widened inequality in land ownership. This is because the market value of one hectare of land after titling is now about US 15 000, whereas untitled land from a farmer costs between US 200-250 (Benjamnisen 2002). Speculators are winners because they buy and sell the land at 60-80 times what the customary holders get (Benjamnisen 2002). Titling can widen inequality between the rich and the poor, and eventually, as trends in the Malian cotton zones show, the prices of land may be out of reach to the poorer farmers.
Land titling requires a full cadastral survey and land rights have to be converted to a full certificate of title which can be extremely expensive for most of the poorer governments of Africa. In Uganda, the costs of land titling and ownership transfer alone have been estimated as in excess of UK280 million (Government of Uganda 1999). Moreover, maintenance of a land registry is a significant recurrent cost, and an inability to consistently fund this has been another reason for disastrous results (DFID 2003:15).
However, free market theorists can argue that land titling programmes have been successful in Thailand in the 1960s. The scholars argue that titling has increased farmers’ access to banks, raised the value of their land and agricultural production (World Bank 1999). The untold story is that the Thai government had no capacity to fund such a titling programme despite the fact that the Thai economy was much stronger at that time of implementation, compared to the current economies of Southern Africa. In fact, it was the World Bank that supported a 20 year programme to improve the land titling system. Policy makers need to consider the socio- economic contexts in which the changes are to be effected.
A shift in tenure systems
The World Bank’s 1975 Land Reform Policy Paper, which had an almost exclusive focus on land titling, recommended at great length the need for formal titling as a pre-condition for modern development. In light of recent empirical evidence across Africa, the World Bank has revised its recommendations and now widely acknowledges that land titling is not the way to improve security of tenure and ensure agricultural productivity (Deinenger 1998; Migot-Adholla 1999). The World Bank now recognises that communal tenure systems can be a more cost effective solution rather than formal titling programmes if land administration systems become more transparent.
Tenure reforms in former homelands of South Africa
The South African government has enacted the Communal Land Rights Act (CLRA) of 2004 in order to secure land tenure rights for black South Africans. The CLRA extends private ownership of land to rural communities. In areas where land was owned communally, it establishes a register of new order rights. It also provides for traditional councils to act as land administration committees wherever they exist. The land administration committee will exert ownership on behalf of the community.
In April 2006, four rural groupings initiated a constitutional challenge to CLRA (Cousins 2008). The question of the legitimacy of traditional councils to act as land administration committees is one of the key challenges. In all the four cases, a history of manipulation of land rights by traditional authorities informs the mistrust in the communities. Moreover, the jurisdiction and legitimacy of the chiefs is being challenged in two of the cases. For example, the Kakfontein community is questioning the jurisdiction of the chief on the allégation that the chief was imposed by the colonial authorities. Claasens (2005) argues that this version of customary tenure results from colonial and apartheid polices. The colonial authorities believed that modernity rested on someone being appointed in supreme command over a given demarcated boundary (Crais 2006: 722-726 cited in Cousins 2008).
This tends to undermine rather than strengthen land rights as chieftaincy may trump land rights that exist at lower levels like households. However Cousins (2008) stresses that this challenge is not against the indigenous value system.
Bad for land reform: Bad for tenure reform
In Zimbabwe, the fast track land reform has undermined land rights of vulnerable groups. Control of land has been retained by existing powerful traditional, political, and social groups. The Zimbabwe government has initiated the A1 Model and A2 model with different tenure systems. Under the A13 model, the government issues 25 year permits which are not very secure. The state and traditional leaders are competing to control administrative arrangements. On the other hand, 99 year leaseholds are set to be issued to individuals who got land under the A24 model. According to Moyo (2007) the 99 year leaseholds are more secure than the 25 year permits. Under the Fast Track Land Reform up to 178 members of the elite got more than one land allocation covering more than 150 000 hectares. Dominant ZANU PF political elite members have accumulated more than one farm, especially under the A2 model, in defiance of the liberation war ‘slogan’ of ‘one man one farm’.
Other beneficiaries have been traditional chiefs. The government has set them as a priority: “All traditional chiefs without land but are interested in A1/A2 plots will be given preference in land allocation” National land audit (2006:78). 34 Chiefs have benefited from A2 Plots (ZI 2007). In Matabeleland South province many of the chiefs were given wildlife farms. Beneficiaries like chiefs gained a lot of power and could also allocate land. Some of the chiefs, such as in a case of four chiefs in the Zaka district, have re-allocated land to their sons (ZI 207). Chiefs were given plots outside their areas of jurisdiction and some failed to take up the plots. Beneficiaries question the jurisdiction of chiefs in displacing them and replacing them with their favourite subjects. Apart from that, traditional leaders have a strong alliance with governing party. They are on the government’s payroll and they were given new vehicles, piped water and electricity at the tax-payer’s expense.
The insecurity of tenure amongst the marginalised groups, such as farm workers and women, has been largely reproduced and exacerbated (Zamchiya 2007). The percentage of female beneficiaries under Model A2 was as follows: Midlands (5%), Masvingo (8%), Mashonaland Central (13%), Mashonaland West (11%), Matebeleland North (17%), and Manicaland (9%) (Utete 2003). The Women and Land in Zimbabwe lobby group has criticized government policy on land reform, stating that: “Although females heading households can access land and be given permits in resettlement areas, their married counterparts still had to access land through their husbands and have no security of tenure should their husbands die; there are not many women who own land in small scale commercial areas as most women are poor; the legal and policy framework has not incorporated inheritance rights pertaining to land for widows; the fact of women’s lack of access and control over land leads to them being excluded from credit, marketing facilities, decision-making powers over agricultural production activities and benefits, negatively impacting on the productive capacity of women” (SARDC 2005).
While government policy states that farm workers qualify for land, no commitment was made regarding a specific proportion of the land resettled. In fact about 200 0005 farm workers were displaced during fast track land reform and their access to land has been undermined (Sachikonye 2003; Zamchiya 2007). This has affected their livelihoods. Recently, the Commercial Farmers’ Union (CFU) president reported that 100 of the remaining farms had been invaded from 04-08 April 2008 resulting in further displacement of 40 000 farm workers.
It is imperative to note that even the A2 model tenure system has largely failed to achieve the intended results. Firstly, only 125 farms were issued with the lease at the launch of the 99 year leasehold in 2006 yet there are about 15000 A2 plots (ZI 2007). The 125 farms were not subdivided, which shows that the government is having problems in funding the cadastral surveys. Secondly, the A2 model was meant to provide collateral for farmers. However, some A2 farmers told the joint parliamentary portfolio committees on Lands, Land Reform and Resettlement and Agriculture and Public Service, Labour and Social Welfare that they had inadequate capital to venture into serious commercial farming, with others having difficulty in accessing bank loans. The committee was informed that some banks were not accepting the 99-year leases as collateral security as they felt that the leases had legal loopholes, hence they did not provide adequate security (Herald March 10 2007). The lease documents are not being readily accepted as collateral.
Tenure insecurity remains a thorn in the government’s land and agrarian reform programme. Fast track land reform beneficiaries rely on offer letters to access allocated land, but even though about 20 per cent of the beneficiaries do not have offer letters. The offer letters are highly insecure; between 2003- 2006 about 115 offer letters were withdrawn in Manicaland province alone (ZI 2007). From our survey, about 40% of the respondents also indicated tenure insecurity and security is linked to the existence of political order. “We live in fear once a new government takes over” (Land reform beneficiary 2007). The case of Zimbabwe particularly shows that tenure systems are most unlikely to work in the public interest if political institutions are neither accountable nor democratic.
Conclusion: Which way Southern Africa?
Southern African governments need to build on the initiatives in Lesotho and Botswana. In Lesotho, rural land is allocated by village development councils. The councils are composed of people elected in public meetings and chiefs sit in the councils as ex- officio members. Lesotho provides a critical lesson as it has gone a step further than other countries like Swaziland, where chiefs alone allocate land (Adams, Sibanda and Turner 1999). In Botswana, the Tribal Land Act of 1968 transferred authority from chiefs to Land Boards. This has minimized manipulation in land administration by the chiefs. Land boards are under the direction of district councils. However, these systems still have problems as farm workers (Basarwa) in Botswana are still denied their traditional rights.
Of significance is that no one size fits all for different countries in Southern Africa because they are at different stages in tenurial reform. Evidence presented in the paper shows that more often than not the consequences of trying to introduce private titling to land ownership have proved disastrous. Southern African governments must try to support existing social practices that have widespread legitimacy, rather than expensive solutions that are not grounded in local conditions. However, it is important to note that there are problems with the role of traditional chiefs in land management. Thus, there is need to have elected boards at a local level that are effective, accountable and accessible.
List of References
• Adams, M. 2000. Breaking Ground: Development Aid for Land Reform. London: Overseas Development Institute.
• Adams, M., Sibanda S., and Turner, S. 1999. Land tenure reform and rural livelihoods in Southern Africa. London: Overseas Development Institute.
• Alcock, R., and Hornby,D. 2004. Traditional land matters: A look into land administration in tribal areas in Kwazulu Natal. Pietermaritzburg.
• Bruce, J.W. 1986. Land tenure issues in project design and strategies for agricultural development in sub-Saharan Africa. Land Tenure Centre Paper, No. 128. Madison-Wisconsin: Land Tenure Centre.
• Byres, T.J. 2004. “Contextualizing and Interrogating the GKI Case for Redistributive Land eform”. Journal of Agrarian Change. 4(1-2). pp. 17-44.
• Chimhowu, A., and Woodhouse, P. 2006. Customary vs Private Property Rights? Dynamics and trajectories of vernacular land markets in Sub- Saharan Africa. Journal of Agrarian Change. 6 (3) p. 346-371.
• Claasens, A. 2005. “The Communal Land Rights Act and women: Does the Act remedy or entrench discrimination and distortion of the customary?” Occasional paper no. 28. Programme for Land and Agrarian Studies. Cape Town: University of the Western Cape
• Cousins, B. 2007. “Agrarian Reform and the two economies; transforming South Africa’s countryside”. In Hall R et al (eds).The Land Question in South Africa. HSRC Press.
• Cousins, B. 2008. Democracy and Land Questions in Southern Africa. Paper for workshop on “Agrarian Questions: Lineages and Prospects”. London.
• Cousins, B., Cousins, T., Hornby, D., Kingwill, R., Royston, L., and Smit, W,. 2005. Will formalizing property rights reduce poverty in South Africa’s second economy? Questioning the mythologies of Hernando de Soto. PLAAS Policy Brief 18, Programme for Land and Agrarian Studies, University of the Western Cape.
• Deininger, K. 2003. Land policies for growth and poverty reduction. Washington DC and New York: World Bank and Oxford University Press.
• De Soto, H. 2000. The mystery of Capital. London: Bantam.
• Hudson, J. 1996. Land Title. Profit Dec 1996. pp.44-45.
• Karimakwenda, T. 2008. 100 farms invaded in 4 days. Shortwave Radio Africa Website. Accessed on 8 April 2008.
• Migot-Adholla, S., Hazell, P., Blarel, B. and Place, F. 1991. Indigenous land rights systems in sub-Saharan Africa: A constraint on productivity? The World Bank Economic Review. 5 (1): 155-175.
• Moyo, S. 2004. African Land Questions, The State and Agrarian Transition: Contradictions f Neo-Liberal Land Reforms. CODESRIA.
• Moyo, S. 2007. “The Land Question in Southern Africa: A Comparative Review”. In Hall R et al (eds). The Land Question in South Africa. HSRC Press.
• Okoth- Ogendo, H. 1982. The perils of land tenure reform: the case of Kenya. Paper presented at the workshop on Land Policy and agricultural production in eastern and southern African countries. Gaborone, Botswana.
• Okoth-Ogendo,H. 1998. “Agrarian Reform in Sub-Saharan Africa: An assessment of state responses to the African agrarian crisis and their implications for agricultural development”. In Basset T,J et al (eds). Land in African Agrarian Systems. University of Wisconsin Press.
• United Nations Development Programme (UNDP) (2002). Land Reform and Resettlement: Assessment and Suggested Framework for the future: Interim Mission Report. New York.
• Utete, C. 2003. Report of the Presidential Land Review Committee under the chairmanship of Dr Charles M.B. Utete, Vol 1 and 2: Main report to The President of The Republic of Zimbabwe.
• Quan, J. 2000. “Land Tenure, Economic Growth and Poverty in Sub- Saharan Africa”. In Toulmin, C. et al (eds). Evolving land rights, policy and tenure in Africa. DFID/IIED/NRI. London.
• Sachikonye, L.M. 2003. “From growth with equity to fast track reform: Zimbabwe’s land question”. Review of African Political Economy. p.96, pp. 227-240.
• Rukuni, M., and Jensen S. 2003. “Land, Growth and Governance: Tenure reform and visions of progress in Zimbabwe”. In Hammar et al (eds). Zimbabwe’s Unfinished Business: Rethinking Land, State and Nation in the Context of Crisis. Harare, Zimbabwe: Weaver Press.
• Zamchiya, P. 2007a. “Farm Workers: Forgotten by the Highway”. Accessed on www.newzimbabwe.com>.
• Zamchiya, P. 2007b. “How many farms is enough?” In Moyo et al (eds). The Day After Mugabe: Prospects for Change in Zimbabwe. Africa Research Institute. pp. 78-82.
• Zimbabwe Institute (ZI), 2007. “Understanding the impact of the fast track land resettlement programme”.
1 A leading free market thinker.
2 He calls this land extra legal.
3 Most of the poorer households were allocated land under the A1 model.
4 Most of the politicians and traditional leaders were allocated land under the A2 model.
5 Which constitutes about 70 per cent of the original farm workers.