Land Tenure – Part 3

What can be done for the land tenure systems in developing world contexts such as Uganda? What are the possible solutions?

Before I offer some commentary on this topic, I want to clarify one important item. I do not herein promote any specific solution and I do not claim to have anything like it. If there is anything my time in Uganda taught me, it is that it is impossible to offer any legitimate critique or commentary on a society unless one has lived there for a minimum of six months. I arrived in Uganda in early June, and when I left in December I was still learning new things about the culture each and every day.

Before offering my thoughts, it is helpful to examine the dominating theories of the day on land tenure reform in developing world contexts. We therefore start with Hernando De Soto’s tremendously popular 2000 publication The Mystery of Capital. In this book, De Soto recommends that the land assets of the poor should be transferred from outside the established legal sphere to inside it.  In other words, the land assets of the poor would be more profitable if they were incorporated into a modern, established legal system that turned their land assets into usable social and financial capital. He proposed that this could be accomplished by 1) conducting extensive research to discover the intricacies of the current/local land tenure systems, and 2) creating ways to integrate these systems into the established legal system. For De Soto, it is the failure of the land tenure system that is the predominant factor in keeping the poor away from opportunities and capital.

I agree with De Soto on two counts. First, I agree with him that the failure of the land tenure system is arguably the most important factor holding poor people groups back from opportunities to grow their local economies. I saw this firsthand in Uganda, where corruption of local government officials and a lack of interest in the land rights of poor farmers meant that they were not fairly represented and were overlooked by their economy. Secondly, I agree with De Soto that no bridges have been built between the poor and any sort of established legal system in large part because the law-makers and government officials have little interest or capacity to promote their interests. I saw every day the immense gap between the bureaucracy and the farmers I became friends with, which manifested itself in the continual corruption of local government officials and the constant dismissal of the farmers’ land rights.

However, I do not agree with several of the assumptions that De Soto makes in his theory. As Jan Otto points out in his analysis of De Soto’s theory (see the Sources page for the article title), he forgets that the linking of traditional or local land rights systems and established legal systems often leads to further marginalization of the poor, who do not know how to function within this new system, and further exploitation of them by the wealthy few, who utilize the increased range of the law to capitalize on their compatriots’ ignorance of the established system. I saw this happen many times during the months I lived in Uganda. Local government officials admitted to my face that land-grabbing by wealthy bureaucrats happens regularly with no regulation or enforcement reaction. Corruption at all levels of the system means that farmers are the least likely to have a claim to legitimate representation, and others in their society know this and capitalize on it.

Another assumption made by De Soto and by many others is that integrating local systems into an established legal framework will benefit the poor and will lead to development. This requires that the government be pro-poor – and therefore, in most cases in the developing world, pro-farmer – and that once they recognize the land rights of the poor that the poor will be free to thrive. This is simply not true in many contexts. Without the appropriate state recognition and an increased level of access to the law that must be parallel with the development of the legal structure, growth does not automatically happen.

While De Soto’s model is by far the most popular and the most often discussed, there are other models out there that are slowly gaining traction. For instance, the World Bank’s agricultural development model includes a land tenure reform plan of its own (http://www.worldbank.org/en/region/afr/publication/securing-africas-land-for-shared-prosperity). It focuses more on the governmental and administrative side of the issue and proposes that governments play a larger role in reform efforts. For instance, several of their objectives have to do with increasing recognition, authority, awareness, and transparency at the local and regional levels of state or country government. Land tenure documentation efforts, legal recognition of property, and representation of the poor’s land rights are all proposed as government-run efforts. While I agree that the government must be involved at some level in order to provide recognition for the land rights of farmers and the poor, one can’t assume that the state can reach through all levels of society. This is particularly true in contexts like that of East Africa, where corruption is an unfortunately very prevalent influence.

Another theory, put forth by the Overseas Development Institute and exemplified by a myriad of other NGO’s, is a completely bottom-up approach (https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/2883.pdf). Such approaches are oriented around maintaining all customary and traditional land rights practices and fitting the legal framework around them (not vice versa, as the World Bank model might say, or in conjunction with, as De Soto might say). This approach particularly values communal land-use arrangements such as those involving nomadic herders, and their efforts are concentrated around getting such communal land-use arrangements recognized in their own right and not necessarily under the formal legal system of the region. I agree that local recognition is important, but without state recognition and official legal protection the land rights of the poor are still vulnerable. Simply legitimizing the customary land rights of the poor in their own context does nothing when an outside influence comes in with no regard for any part of that region’s traditional system.

With this background, we finally come to the consideration of possible solutions. While we certainly cannot create an overarching framework that will enable every context to thrive, we can identify factors that are necessary for the implementation of any successful system.

  1. Access to the legal system means everything. In other words, without access to the legal system, all the land tenure reforms in the world mean nothing.
  2. Land tenure security must apply to poor small farmers in the same way they apply to large wealthy farmers. Small farmers are the ones who constitute the majority of many of these countries. They must be protected against infringement by wealthy elites.
  3. The land rights of small farmers must be recognized by the government. This does not necessarily mean, as De Soto would say, that their rights must be made a part of the formal legal system. State recognition will give the farmers a resource for protection when elites try to take their land.

Even with all of these requirements, there are other issues that may arise depending on context. For instance, what would a land tenure system in a developing world context do about nomadic herders? They have had customary contracts with the local people groups for many generations that ensure that they can graze their animals on their fields after harvest.

In all parts of the world, land tenure security could incentivize a long-term land use vision that would lead to more environmentally-friendly practices. It could also free up local markets for investment, enable poor farmers to have legitimate collateral, and build ties between the government and rural communities. Despite the difficulties involved, I believe that partnering in land tenure reform efforts in both national and international contexts is worth the investment.

 

 

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