This second installment on land tenure will discuss international land tenure systems. I speak only from the limited experience I had conducting research on the topic as well as the months that I spent living and working with maize farmers in rural Uganda. My analysis of this subject is therefore likely to be biased toward the predominant land tenure issues in the East African context. However, I believe it is beneficial and important to be aware of the differences and similarities between national and international dynamics.
International land tenure systems span the entire breadth of the legal spectrum. Many countries in the developing world, like Uganda, have largely informal or customary land tenure systems. (I use the term informal not to designate it as lesser but simply to distinguish it from other systems of land tenure that are part of an official written legal system). Such informal land rights are usually not acknowledged by the government and are therefore ripe for abuse. In many ways, such informal land rights systems are separate from the legal sphere and operate entirely outside of its realm. Indigenous land rights systems might fall into this system, particularly in the case of a people group whose society is based on agricultural enterprise. Many countries blur the lines between such informal or customary land rights systems and formal or recognized land rights systems, and Uganda falls squarely into that group.
Access to land is one of the primary difficulties for small farmers in a system, like Uganda’s, in which they have no political or social capital with which to bargain and no established recognition of their land rights under law. Through their local customary land tenure systems, these farmers would normally acquire land through communal ties or customary conventions. The imposition of a formal legal system (which is the reality in many African countries due to past colonization by European monarchies) thus creates confusion and uncertainty for those without the capital necessary to utilize such a system.
An additional difficulty facing farmers in contexts like that of Uganda is the issue of land tenure security. Once a small farmer in a developing country has obtained land, he or she has very few resources for defending it. Land-grabbing public officials were a reality in Uganda and are, I am sure, a reality in other countries. The small farmer is left without recourse when quoted a long list of unfamiliar legalities that supposedly justify the official’s need for the land. The farmer’s customary land rights are unable to stand up to the foreign complexity of the formal system. A farmer from a remote bush tribe with only a tribal land tenure system at his or her disposal is helpless when confronted with the machinery of a formal legal system that does not recognize their rights. I did not see this happen in person, but I heard about it and saw the effects of its occurrence enough to know that it happened regularly. It opened my eyes to what a society without legal representation or property recognition would look like.
This helplessness can be taken advantage of by wealthy landowners, town officials, politicians, and other such individuals or entities that are aware of the plight of the small farmer (https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/2883.pdf). Tenure security can be defined as having the knowledge that one’s land will not be infringed upon by others. Tenure security can come from one’s community, a formal legal system, a set of traditions, a national-level system of oversight, and other such entities. Here in the United States, we have no concept of the difficulties associated with lacking tenure security, but not knowing whether your property will be recognized as your own leads to a host of issues, many of which are magnified by the difficulties inherent in living in a developing world context. For instance, the inability to know that one’s land won’t be taken away changes one’s perspective on time. This can, in turn, lead to poor soil care and environmentally unsafe farming practices because of the urgent need to get as much out of the land as possible. A person in a developing world context with only a few months of guaranteed land use will understandably try to grow as much as possible at the expense of the land, since after that time period they may not have the land at all.
Seeing firsthand the realities caused by the land tenure system in Uganda and other parts of East Africa was a significant factor in solidifying my desire to pursue a career in law. As I said before, it opened my eyes to what a system without property law might look like. One instance in particular stands out to me. A farmer friend from a remote village lamented to me that he had only four acres, none of which he owned, and four sons, all of whom would be customarily entitled to a portion of their father’s land. He hadn’t the money to buy land and the prospect of doing so did not seem to be in the near future, since maize prices were dropping and seed prices were rising. The hundreds of unfarmed acres farther out in the bush weren’t available to him because they were owned by a wealthy businessman in town who wouldn’t listen to any of the poorer farmers. After this season ended, he wasn’t going to have even the few rented acres he now used, and he didn’t stand a chance trying to lease any more land from a farmer in town. His customary land tenure system, based in his tribal tradition, didn’t have bargaining power with the wealthy businessmen who owned most of the local land and wasn’t recognized by the formal legal system in town. In other words, he had no way to obtain land because the traditional system was powerless and his social group wasn’t valued by the formal legal system. I didn’t know how to answer his questions, and I still have no answer for him. But whether the answer is 1) the incorporation of traditional land tenure systems into the formal legal system, 2) the separate recognition of traditional legal spheres as legitimate, or 3) the enforcement of property laws on the wealthy businessmen, the issue lies in the legal realm.