African Land Rights Systems

Introduction

ix Introduction Land is a sensitive subject because it is one of the most valuable resources for survival. It provides food, water, energy, and other benefits to meet the needs of human beings. It is a resource from which many people make a living. Despite the importance of land, seemingly, most of the challenging questions about distribution, ownership, and management have not yet received adequate attention. At the moment there is a growing literature on landrelated disputes. But most of it is bereft of ethical analyses, conclusions, and recommendations. There is no attempt to establish the link between cause and effect with an intention to unveil the background of the problem and what could be done to produce a long-term solution. Many approaches concentrate on reporting what is happening without giving reasons underlying the root causes.1 Migrants, refugees, and internally-displaced persons “articulating claims around land rights are largely ignored as are the land rights programs of urban-based human rights organizations.”2 A reform of the existing land rights systems is required because they cannot guarantee security for vulnerable individuals, groups, and communities. There are few studies on land rights that have thoroughly examined the relationship between land, market, and morality.3 A critical reflection on this aspect could help us to know the extent to which the trend of land-grabbing has contributed toward the depletion of the farmland, landlessness, inequality, migration, and conflict. Meanwhile we need studies that can generate analyses, conclusions, and recommendations to support the effort of protecting forests x required for rain, public land for future development, and rights for the vulnerable communities.4 These studies must also be able to present something more than unexamined empirical data, an approach that has saturated the existing land rights literature. The issue of land rights is apparently neglected in African studies on ethics, culture, and religion. The reason is that land is understood as a matter to be exploited to satisfy human needs. Studies on land, from the perspective of the existing literature, have been left to geographers, historians, and sociologists who present land-related issues in terms of reports that lack critical analyses, hermeneutical insights, ethical questions, and transformative suggestions. The concept of land, seemingly, comes to the ethical discourse from the sidelines, not straightforwardly in the manner we expect because of its importance. Comparative approaches are mostly focused on reports and statistics without any concern for the reasons underlying the events they report about that raise questions or suggest ways that can change the situation. Land rights discourse must necessarily include ontological and teleological dimensions. It is an issue that brings together ideas, feelings, experiences, and expectations. It concerns systems of culture, belief, and economics. It is about raising questions and exploring reasons underlying land disputes accompanied with conclusions and recommendations that could enrich land rights debate and policymaking procedure. I agree with Jean-Philippe Platteau that “land ownership problems have become a source of the increasing inequality and food insecurity among the vulnerable sections of the rural population.”5 Even when the disputes have been resolved by the courts, “the bitterness lingers on in the minds of the litigants. The legal conflict may come to an end, but xi the real conflict lives on.”6 The increasing insecurity and conflict around the land question results from the lack of coordination among different land rights systems, namely, customary, private, and statutory. These differences enhance separate legislations that generate a barrier for initiatives intending to formulate a unified land law. In many African countries, observes Frank Byamugisha, “disputes related to land constitute a very high percentage of court cases. In Ghana, for example, fifty percent of all new civil cases lodged are related to land, while in Ethiopia, one-third to half of all cases within the formal judicial system are related to land.”7 Access to land has a profound impact on people’s ability to be self-sufficient. The historical background of the African continent shows that unlawful acquisition of land from traditional communities during the colonial period rendered many people landless, insecure, and vulnerable. Farmlands were arbitrarily taken from the indigenous people by colonial agents.8 Repossessing stolen lands, as a motive of the independence struggle, was regarded as a guarantee of autonomy and self-determination to the people. Since then land has continued to dictate the rhythm of social relations. Others would argue that land is the...