Conversion of Tenure into Leaseholds? Lessons within Sub-Saharan Africa


By Prota Thomas (Part III) 4.4 Lessons from Fellow Sister Countries The rest of the research in committed to an analysis of land tenure and reforms in the three countries of Uganda, Kenya and the Ivory Coast. Kenya is a former British colony in east Africa. The country covers an area of 56.91 million hectares, regarded as arable with permanent cultivation. Additionally 21.3 million hectares comprise of permanent cultivation pasture (FEO, 1994). Currently, the population is estimated at 29.5 million. About 76% of Kenya’s population is employed in agriculture. The Kenyan economy showed a strong boom from the tenure of independence until 1990 (Central Bank of Kenya). The economy has experienced a slow boom since 1996 due to various factors and subsequently to corruption ( Ivory coast is a former French colony in West Africa. The country covers an area of 32 million hectares of which 3.7 million is said to be arable with permanent cultivation. In addition 13 million is said to be permanent pasture (FAO, 1994). The total population is said to be at 14.5 million people in agriculture, giving an agricultural population density of 2.0 per arable hectare (UNFPA, 1999). Uganda is a former British colony in east Africa. Uganda is a landlocked country. Its total area is 241.039 sq. km, of which 197,097 sq. km is land while the rest, which is approximately 43.942 sq. km is covered by water and swamps (CIA world book 2002). The population of Uganda is currently estimated at 22.5 million people (CIA world book, 2002) Uganda’s economy is dependant on agriculture, which contributed 43% of the total GDP of the country and over 90% of its total exports (Okoth-Ogendo, 2000). Since agriculture is the most important sector of the economy, it employs over 80% of the workforce. Although 42% of the total land area of the country is suitable for agricultural use, this is mostly in the southern regions (Okoth-Ogendo, 2002). Uganda is one of the few countries in Africa that is self-sufficient in food. 4.4.1 The Effect of Colonialism on Land Tenure When the European colonialists reached Kenya in the early part of the 20th century, they were given Kenya’s fertile land under grants on freehold (Okoth-Ogendo, 1981). The indigenous people were moved to the reserves of infertile lands where customary tenure was practised with many restrictions, including prohibition from cultivating cash crops. In 1944, the Kenya African national union, an African nationalist organization, was formed. Its main objective was to demand access to white colonizers’ owned land. In 1947, Jomo Kenyatta became president of the organization and in 1964 Kenyatta became president of Kenya. President Kenyatta held the view that every family living in Kenya had land rights of one form or the other; every inch of land had its owners (Osolo-Nasubo, 1977). However, after independence Kenya continued with the system of individual tenure and chose to implement market-oriented policies. This was surprising because the struggle for independence in Kenya was based on the promise that land taken away or alienated to European occupation was to be returned to the original occupants of the area (Osolo-Nasubo, 1997). This means that the promise was never fulfilled after independence as the policies the Kenyatta administration adopted to continue with the conversion of customary tenure into leaseholds. During the colonial era in the Ivory Coast, the French colonial government passed the code of assimilation. The colonial ideal pursued by the French, combined with their Jacobite and prefectorial tradition in the Ivory Coast, was to assimilate colonized people so as to integrate colonial territory with metropolitan France to the best possible extent (Bayart, 1989 quoted in Platteau, 1992). French colonial land policies in the Ivory Coast refused to recognize the existence of an indigenous customary system of land tenure and were entirely based on the notions of exclusive private property and the proof of title to land through formal registration and it was considered totally unfair and irregular since it was based on such a complete disregard for local customs, rights and realities. On the eve of the 20th century Uganda was declared a British colony. Colonialism had an important impact on land relations in Uganda. Through a series of agreements made with traditional rulers and their functionaries the British authorities granted a number of private estates called Mailo in Buganda (now called Uganda) and native freehold in Toro and Ankole that were broadly equivalent to the English freehold (Okoth-Ogendo, 2000). In the rest of Uganda, all land was declared crown land. It should be clear the land question in Uganda was no different from what they were during the colonial period. 4.4.2 Post- Independence Era The land issue has always been and remains central to the politics of development in Kenya (Okoth-Ogendo, 1981). Following the provisions of the Swynrton plan, the independent administration of Kenya determined to carry on development of the African reserves through registration and consolidation. To attain these objectives, the state had to look at capital and technical assistance from the former colonialist government (Osolo-Nasubo, 1997). After gaining independence in 1960, the Ivorian law on land provided for surveys and registration of land, which then became the irrevocable property of the owner and his successor (Furth, 1998). In order to lawfully register and own title to land in the Ivory Coast, it is necessary to have a piece of land inscribed in the land register. The rest of the land belongs to the government and can be granted a lease of 25 years subject to renewal. Uganda attained independence in 1962 under the leadership of Milton Obote. However, the Obote administration kept the colonial system of land tenure and the land question hardly featured in Ugandan politics. In 1975, President Idi Amin seized power by force. President Amin issued a decree called “The Land Reform Decree” which declared all land to be public land and vested the same in the state to be held in trust for the people of Uganda (Okoth-Ogendo, 2000). However, in 1986 the current president of Uganda forced Idi Amin out of power and started converting customary tenure in leaseholds. 4.4.3 The Driving Force for Change In Kenya, as the programme of converting customary tenure into leaseholds had already commenced even before independence, the challenge for the independent administration was to ensure continuation of the reform. In the Ivory Coast the pressure for conversion of traditional tenure into leaseholds has its associated constraints for various reasons. The primary reason is the uncertainty associated with traditional tenure. Additionally, if a farmer does not title his/her land, the government is regarded as the lawful owner. The conversion of customary tenure into leaseholds in Uganda started in 1986 and it is still at the initial stage due to lack of funds. The structural adjustment policy led by the International Monetary Fund added pressure on the Ugandan government to convert customary tenure into leaseholds. There are good lessons for Namibia from the countries case studies. It seems that Kenya and the Ivory Coast forcefully carried out land reform soon after they attained their independence, with a general movee towards converting customary tenure into leaseholds. However, the conversion of customary tenure into leaseholds in Kenya caused a deterioration and loss of food security. In the Ivory Coast the state declared that if a farmer does not title his/her land, the government is regarded as the lawful owner and this has encouraged people to convert their customary tenure into leaseholds. In Uganda, it can be argued that since agriculture is the main economic backbone, the Museveni administration wants to encourage foreign investment in land and hence bring foreign currency for the country. However, in Uganda the state of landlessness is not yet recorded due to the fact that customary tenure is still recognized as demonstrated in the following statement. “Nothing in the act will hinder or limit the exercise by traditional authorities of the functions of determining disputes over customary tenure of acting as mediator between persons who are in dispute over any matter arising out of customary tenure”(Okoth-Ogendo, 2000:17). 5. Conclusion and Recommendations 5.1 Conclusion The fundamental need for land reform is mostly a result of the need for economic development, certainty and social justice. Economic development has to be argued as the main catalyst behind many land reforms. The social justice argument is founded on the basis that inequality and exploitation are not desirable elements. In sub-Saharan Africa, the conversion of customary tenure into leaseholds has taken place at a slow pace. Out of more thane forty sub-Saharan African nations, only three countries, namely, Malawi, Kenya and Ivory Coast have notably progressed in converting customary tenure into leaseholds. If Namibia will pass and implement this policy, the policy will be strongly criticized and resisted by the indigenous people who will be concerned about preserving customary tenure. Kings will take the center stage in resisting the winds of change as they draw their political powers from their god-given indigenous institutions. Their main motivations will be that converting customary tenure into leaseholds will reduce the size of their kingdoms and destroy their culture. Kings will no linger have the authority to control people who will convert customary tenure into leaseholds in kings’ areas apart from taking away the lands from kingdoms. 5.2 Approach to Customary Tenure Although few of the criticisms mentioned against customary land tenure are valid, others are over-generalizations. They often overlook that customary law in general is capable of development and adaptation to altering social-economic circumstances. Customary tenure is part and parcel of Namibians’ culture. The idea that customary law is immutable and static has been seen to be empirically inaccurate. If the Namibian government is to go ahead with the idea of converting customary tenure into leaseholds, kings should be permitted to keep part of the initial consideration paid for the land in their kingdom as a means of compensation for the loss of political power and customary tenure. Decentralizing of countryside land management is one means of attaining this way of minimizing the costs of land titling. Concluding Remarks: The author observed that the expansion of capitalism in the Western world was the accumulation of wealth by only very few, leaving the majority in a landlessness state. In sub-Saharan Africa, similar lessons can be learned from the examples of the Ivory Coast, Kenya and Malawi, where remarkable success in converting customary tenure into leaseholds has led to indigenous landlessness. The land of the brave is blessed with vast resources. What is the motivation? Land redistribution is the name of the game. The author could argue that the Namibian government will not hurry to convert customary tenure into leaseholds because such reform is complex and the policy formulation process needs to tread delicately around the fragile system of vested interests and societies’ safety nets in the communal areas. It is also observed that in sub-Saharan Africa land reforms follow the political philosophies of the countries’ heads of state and are hindered by political ideologies. Pro-capitalism has converted customary tenure into leaseholds whereas advocates of socialism have preserved customary tenure. – Prota Thomas is a Land Economist who graduated from the University of Aberdeen in the United Kingdom and is employed as a Professional Valuer responsible for Rating and Taxation in the Ministry of Lands and Resettlement. Views expressed are those of the author.