Land Tenure and Property Policies in East Africa

"Insecure land tenure and property rights and the inequitable access to land and natural assets are two of the leading triggers of violent conflict, population displacement, the over-exploitation of natural resources, and political instability throughout eastern Africa," asserted Peter Hetz of ARD, Inc. at "Land Tenure and Property Policies in East Africa," an event co-sponsored by the Environmental Change and Security Program and the Africa Program on April 23, 2008. Hetz and USAID's Gregory Myers explored how imprecise or inequitable systems of land tenure and property rights have helped precipitate conflict in Northern Uganda, Kenya, and Southern Sudan, and warned that lack of attention to these crucial issues will foster further violence in those volatile countries. For example, Myers called the Kenyan government's push to quickly resettle people displaced by the recent violence without addressing the causes "a recipe for disaster."

An Insecure Present and a Threatened Future

Insecure land and property rights and inequitable systems of land access and use have contributed to many conflicts, and without reform, may become even more likely to trigger violence, said Hetz. The rising demand for—and value of—Africa's natural resources will only intensify conflict over these assets. In addition, climate change, food insecurity, and the growing demand for alternative energy will further amplify tensions over land use and access.

Property rights regimes typically address four types of land rights: the right to use it; the right to manage and transform it; the right to transfer one's rights; and the right to own it. The two main systems of property rights are private, where individuals own the land, and customary, where the land is owned communally. Hetz stressed that although it is often assumed that these two types of systems are mutually exclusive, they can in fact complement one another. "The failure of governments to integrate customary tenure, traditional tenure, into formal frameworks…is contributing to the conflict that we witness in this part of the continent," said Hetz.

Customary land-use systems can be extremely complex, explained Hetz. For instance, in Kenya's Losai National Reserve, a conservation area established in 1976 to which local people retained their land use rights, the land rights negotiations had to take into account ethnicity, clan, matrilineal/patrilineal systems of inheritance, and rights that differ according to gender, season, and generation.

Kenya: Simmering Land Tensions Erupt Into Violence

The recent crisis in Kenya is an example of how land tenure can cause instability and conflict, said Myers, who had recently returned from three months in Kenya and Sudan. Although some date from the colonial period, most of the land grievances in Kenya emerged from the post-colonial government's efforts to establish three different land ownership systems: private, government, and customary. The government used this tripartite system to annex large areas of land under customary tenure—typically without informing or consulting local residents—by creating resettlement areas or selling the land to private commercial interests.

Customary land tenure systems have been unable to keep pace with the economic and political changes of the past several decades, and some "have completely broken down and are unable to resolve disputes, exclude other groups and individuals from overexploitation of their resources, or resist illegal takings of their land by government and private individuals," said Myers. In addition, "courts and administrative agencies, such as the land offices, the land registries, the county councils…responsible for resolving disputes, resolving contested land claims, and verifying rights are highly dysfunctional. Simply put, the courts do not work when it comes to land disputes, and people do not trust the administrative bodies responsible for securing or verifying the legitimacy of their rights." Customary and official institutions' failure to resolve land disputes has encouraged people to use violent means to protect their land rights.

In 2004, the Ndugu Commission, which was established to investigate illegal and irregular land grants, found thousands of instances of illegal concessions, most of which had been doled out to the political elite—including past presidents Daniel arap Moi, Jomo Kenyatta, current president Mwai Kibaki, and prime minister-elect Raila Odinga—and recommended the creation of a judicial body to seize or buy back illegally and irregularly granted land concessions. As with previous reports to the government on illegally and irregularly granted land, the commissions' recommendations were largely ignored by the government.

"Institutional failures and the inability to address past grievances…in a very real way brought Kenya to the verge of open civil war" following the December 2007 election, said Myers, when thousands of people were killed and hundreds of thousands were displaced. "The government of Kenya, perhaps aided by misguided international concern over food security and humanitarian conditions in the refugee camps, is overly focused on resettlement and moving people out of the camps as quickly as possible, rather than addressing the causes of displacement," explained Myers. Without a standard, transparent method for relocating internally displaced persons (IDPs), they could be moved into situations where they could be killed, or where their presence could ignite fresh violence—as occurred after Kenya's last two elections.

Myers emphasized that the true victims of Kenya's insecure land and property rights system are women, who constitute more than half of the agricultural workforce and are particularly dependent on secondary property rights—which allow them to sublet agricultural land, graze livestock, and collect wood, plants, and fruits—that are difficult to secure under both customary and statutory systems.

Southern Sudan: A Struggle for Power

"Land tenure security is intrinsically connected to political, social, and cultural identity in Southern Sudan, and the conflict over land is symptomatic of the greater regional struggle for control over the south. As a result, land tenure and property rights is a key component of the Comprehensive Peace Agreement, the CPA, and is also a key component in the Interim Constitution for Southern Sudan," said Myers. The CPA mandated the creation of a commission to address land tenure issues, but the commission lacks the technical staff to develop policy and law or coordinate a national discussion of these issues. Land issues remain highly controversial: Agriculturalists and pastoralists have competing land claims, as do different ethnic groups. The return—or attempted return—of IDPs and the expansion of urban areas have also given rise to overlapping land claims.

Government institutions in Southern Sudan are extremely weak, and it is currently unclear which administrative body, ministry, or agency has the responsibility to develop and implement land tenure and property rights rules, policies, and laws. In the absence of clear jurisdiction, federal, state, and local institutions are competing over the right to distribute land. Furthermore, some groups and individuals have been forcing weaker ones off their land; this land grabbing "has a definite ethnic dimension and could undermine political cohesion in Southern Sudan or pit ethnic groups against ethnic groups, which together have previously fought hard to create a new state," said Myers, who warned that this situation "could lead to widespread violence, killing, and population displacement."

Northern Uganda: Tragedy Gives Rise to Opportunity

Ironically, the displacement of more than two million people in the decades-long conflict between the Ugandan People's Defence Force and the Lord's Resistance Army has fostered the recovery of previously degraded ecosystems, providing Northern Uganda with an opportunity to establish sustainable natural resource management practices and conserve biodiversity. But choosing the sustainable path will not be easy, said Hetz: "Despite the numerous lessons that we've learned from post-conflict resettlement and property rights in Africa, the National Policy for Peace, Recovery, and Development for Northern Uganda published by the Ugandan government still demonstrates a fundamental disregard for the importance and urgency associated with land tenure and property rights. It is barely addressed. So a major policy guideline and donor investment document still fundamentally disregards these basic rights." In addition, market incentives encourage environmentally destructive choices; for example, charcoal—a significant cause of deforestation, as it is traditionally produced by cutting down trees and burning the wood in a deoxygenated environment—fetches five to eight times the price in neighboring Southern Sudan as it does in Northern Uganda.

Hetz fears that if land tenure and property rights issues are not addressed before a final peace agreement is signed, they will be ignored in people's rush to return to their homes and reacquire land use rights. The failure to resolve these issues could stunt agricultural development and foster corruption, unemployment, crime, cross-border violence, and regional instability. Moreover, two decades of conflict and displacement have weakened the traditional social welfare and dispute resolution institutions of the Acholi, one of Northern Uganda's main ethnic groups, and the Ugandan government has launched an ambitious decentralization program that is competing with traditional authorities—as well as newer armed groups—for power and legitimacy.

Disadvantaged groups require special attention in land tenure and property rights systems, Hetz maintained. For instance, because Acholi society is patrilineal and patrilocal (i.e., a woman moves to her husband's household), the only land a woman has rights to is her husband's. If her husband dies, or if she is unmarried, she can acquire only rights to use land, not own it. If a widow is not taken in by her late husband's clan, her children lack property rights, as do children with unknown fathers.

The disabled—estimated at between 10 and 15 percent of the Northern Ugandan population—are also vulnerable. It is difficult or impossible for those with physical disabilities—including land mine injuries—to farm, gather fuelwood, or fetch water. In IDP camps, humanitarian organizations provide some level of care for those with physical and mental disabilities, as well as the approximately 50 percent of the population in the camps estimated to be infected with HIV. But this care is almost nonexistent in the remote rural areas to which the IDPs will return. Moreover, "land is a critical asset for those with HIV/AIDS because land and housing and other property constitute a resource base upon which the household can draw to cover HIV/AIDS-related costs, including the costs of medical treatment, the provision of care, and services related to deaths and funerals," said Hetz.

Toward a More Equitable Future

Myers closed with a series of recommendations for governments, donors, and NGOs:

• Refine international assistance frameworks to link related goals, such as humanitarian assistance and land tenure reform;
• Sequence land and property rights reforms properly—for instance, focus on land tenure issues during conflict, rather than waiting until IDPs have returned home;
• Avoid pressuring people to resettle as quickly as possible: "In many cases, people cannot go back to where they came from, even if you can agree on where they came from";
• Focus on the rights of vulnerable groups, including women, the disabled, and those with HIV/AIDS;
• Establish an informal but standardized method of recording legitimate customary land claims while conflict is ongoing to serve as a basis for further claims once the conflict has ceased;
• Inform people about their land tenure and property rights through public awareness and education campaigns; and
• Reform customary tenure—which is inexpensive to administer and trusted locally—to make it more equitable, rather than replacing it wholesale with statutory tenure, which seems simpler, but can often become a disaster.

"We must support legal and institutional reforms that give the most people the greatest number of opportunities to access resources and secure their rights," Myers concluded.

Drafted by Rachel Weisshaar and edited by Meaghan Parker.