Land Rights under Stress in Darfur: A Volatile Dynamic of the Conflict

Abstract

The aggravation of land rights over time in Darfur was a primary factor in the initiation of the conflict, and has emerged as a particularly dif?cult set of issues in the search for viable peace. While the prospect of being able to keep land acquired in course of the conflict was a primary factor in recruitment for the Janjaweed, it came on the heels of a set of changes in the environment, land use and population patterns, institutions, law and governance that produced a highly unwieldy and volatile land rights scenario. This article explores the role of land tenure in the Darfur conflict, examining the aggravation of rights, custom, and law over time, and then focusing on two of the primary war-related tenure problems currently facing Darfur — use of land rights as tools of belligerence, and the land dispossession — secondary occupation problem.     

‘Best Practice’ Options for the Legal Recognition of Customary Tenure

Is there a ‘best practice’ model for the legal recognition of customary tenure? If not, is it possible to identify the circumstances in which a particular model would be most appropriate? This article considers these questions in the light of economic theories of property rights, particularly as illustrated by the World Bank's 2003 land policy report. While these theories have their flaws, the underlying concept of tenure security allows a typological framework for developing legal responses to customary tenure. In particular, this article suggests that the nature and degree of State legal intervention in a customary land system should be determined by reference to the nature and causes of any tenure insecurity. This hypothesis is discussed by reference to a wide variety of legal examples from Africa, Papua New Guinea and the South Pacific. The objective is not to suggest that law determines resource governance outcomes in pluralist normative environments, but to improve the quality of legal interventions in order to assist customary groups to negotiate better forms of tenure security and access to resources.     

Communal Tenure and Rural Poverty: Land Transactions in Svosve Communal Area,Zimbabwe

The idea of communal tenure has formed a key plank in the rural governance of Zimbabwe since independence, but its retention following the Fast Track land reforms of 2000–2002 perpetuates a distinction between ‘commercial’ land governed by a land market and ‘communal’ land on which market transactions are illegal. This article draws on recent research in Svosve Communal Area to examine the dynamics of land access and their implications for rural poverty in Zimbabwe. The authors argue that, as in many other parts of Africa, access to land governed by customary authority in Svosve is increasingly commoditized via informal, or ‘vernacular’, sales or rental markets. In failing to acknowledge and address this commoditization of land, the ‘communitarian’ discourse of customary land rights that dominates the politics of land in Zimbabwe — as elsewhere in much of Africa — undermines, rather than protects, the livelihoods of the rural poor.     

The Evolutionary Theory of Land Rights as Applied to Sub-Saharan Africa: A Critical Assessment

The evolutionary theory of land rights can be considered the dominant framework of analysis used by mainstream economists to assess the land tenure situation in developing countries, and to make predictions about its evolution. A central tenet of this theoryis that under the joint impact of increasing population pressure and market integration, land rights spontaneously evolve towards rising individualization and that this evolutioneventually leads rightsholders to press for the creation of duly formalized private property rights — a demand to which the state will have an incentive to respond. This article looks critically at the relevance of the evolutionary theory of land rights as currently applied to Sub-Saharan Africa. In particular, the question of whether the establishmentof private property rights is an advisable structural reform in the present circumstancesis examined, in the light of evidence accumulated so far. It will be argued that most of the beneficial effects usually ascribed to such a reform are grossly over-estimated and that, given its high cost, it is generally advisable to look for more appropriate solutions that rely on existing informal mechanisms at community level.     

Land,citizenship and the consolidation of constitutional democracy in Southern Africa

This review article discusses recent books on land reform and its implications for racial reconciliation and constitutional democracy in formerly white‐ruled states in Southern Africa. It is argued that President Mugabe's opportunistic use of the land issue in his power struggle with his domestic opposition—and propaganda warfare with his international critics—should not obscure the symbolic and material importance of Zimbabwe's highly unequal land ownership. Moreover, Mugabe's militant stance is having resonance in neighbouring South Africa and Namibia, where the racially skewed ownership of land—and other resources—could also become sites of struggle that, as in Zimbabwe, threaten not only economic growth, but also the construction of a broad (non‐racial) citizenship and the consolidation of constitutional democracy. Such a chain of events is also likely to have adverse consequences for western–African relations.     

Defusing Land Disputes? The Politics of Land Certification and Dispute Resolution in Burundi

There is a growing interest in localized land registration, in which user rights are acknowledged and recorded through a community-based procedure, as an alternative to centralized titling to promote secure tenure in sub-Saharan Africa. Localized land registration is expected to reduce land disputes, yet it remains unclear how it impacts disputes in practice. This is an urgent question for war-affected settings that experience sensitive land disputes. This article discusses findings from ethnographic fieldwork in Burundi on pilot projects for land certification. It identifies three ways in which certification feeds into land conflicts rather than preventing or resolving them. First, land certification represents a chance for local people to enter a new round of claim making, as those ignored or disenfranchised in earlier rounds see new opportunities. Second, it offers an avenue for institutional competition between different land-governing institutions. Third, certification provides politicians with openings to interfere in tenure relations and to expand their support base. The authors conclude that these problems are not simply a matter of inadequate policy design. Rather, there are crucial political dimensions to land conflicts and land tenure in Burundi, which means that land registration programmes run the risk of inflaming conflictive property relations in rural communities.     

The Discourse that Silences: Beneficiaries' Ambivalence Towards Redistributive Land Reform in the Philippines

This article argues that the persistence of non-capitalist dimensions within land relations in the Philippines is basic to rural livelihood strategies, and has been a major but widely-neglected factor in the failure of land reform programmes. Addressing the issue of non-capitalist relationships brings into focus the indigenous or ‘customary’ land tenure relationships that exist in lowland land tenure arrangements, with the result that the conventional dichotomy between lowland and upland ‘cultural minority’ land relations becomes spurious. The article offers some suggestions as to why, for the major part of this century, the indigenous norms of lowlanders have been overlooked, with a discussion which links up to issues of national identity and nation building.     

Borrowing of Land,Security of Tenure and Sustainable Land Use in Burkina Faso

Lack of formal security of land tenure is often cited as a constraint for participatory land management programmes which try to motivate African farmers to grow trees and to realize other improvements in their fields in order to control soil erosion. According to this approach, the borrowing of land would represent an insecure form of land tenure hindering sustainable land use. However, on the basis of a case study in Burkina Faso, this article demonstrates that this is not necessarily so: borrowing arrangements may play a part in avoiding local overload of the carrying capacity and in an efficient distribution of village lands among the farming units. Furthermore, borrowing does not hinder some major intensification techniques of land use which are currently being applied in Burkina Faso. Legal interventions which aim to increase security of tenure and to create favourable conditions for sustainable land use may in fact have the opposite effect.     

Land as fictitious commodity: the continuing evolution of women's land rights in Uganda

In sub-Saharan Africa, colonial influences have altered traditional practices as a way to manage that which Polanyi labeled as ‘fictitious commodities’ of land, labor, and money. Land has now become a highly marketable commodity and an intrinsic part of the global economy. Over the past century, Uganda's land rights have evolved from communal rights to that of male-dominated, individual ownership practices that have excluded women. Despite constitutional provisions, which confer title of both a deceased husband's property rights and equal rights to property within a marriage to a wife, postcolonial patriarchal tradition prevails. This article examines historical changes in land rights in Uganda and discusses the impact of shifts in land rights from communal ownership to individual tenure, altering power structures and attempting to create marketable land title. The Ugandan women's movement's opposition to policies and implementation of laws that exclude women has been unable to facilitate the required changes in unbiased access to land rights, despite apparent victories in revisions to the letter of the law. Situated within contemporary interpretations of tradition and pressures of market demand, this article shows that women's access to landownership and use are restricted by misinterpretation of traditional law and a lack of enforcement of contemporary legal rights. To illustrate the impact of a lack of access to land, this article examines an empirical case study of widowed subsistence farmers in southern Uganda. Women in Uganda continue to lose ground, quite literally, decreasing the possibility of gender equity in terms of land.     

Towards Reconciliation of the Land Issue in Namibia: Identifying the Possible,Assessing the Probable

This paper argues that the case against a major land reform in Namibia is overstated and inaccurate, and that, in spite of its relatively harsh climate, the country contains sufficient land of good enough quality, and a small enough population, to undertake a major land reform. The paper suggests that the reasons why there is generally a conservative estimate of possible solutions to land hunger are largely related to the prevalence of a conservative colonial intellectual legacy in spite of radical ambitions stated by the SWAPO (South West African People's Organization) government. Furthermore, many commentators and officials in Namibia are following a pattern in Africa of ignoring lessons (positive and negative) from other countries—in this case particularly from aspects of Zimbabwe's land reform. The paper explores the comparison with Zimbabwe in order to emphasize the political lessons available for Namibia's land reform, but it also highlights practical lessons which exist, in spite of the fact that most of Zimbabwe's environment is generally much better suited to agriculture than is Namibia's.     

Historical Perspectives on Pre-Colonial Irrigation in Southern Africa

Abstract

One of the basic areas of interaction between water as natural resource and human societies as agents of cultural transformation is the technology of irrigation. In Africa at least 66 per cent of the available water is used for purposes of irrigation. For more than 4 000 years irrigation has secured food supplies for humans on a continent that is noted for its relative shortage of sufficient natural water supplies.

There is a remarkable hidden power of water in the history of southern Africa. This is particularly the case when we consider the development of early irrigation technologies of Iron Age farmers. The small irrigation furrow of the subsistence farmer was just as important to an insular community of Bantu-speaking people in pre-colonial times, as is the sophisticated irrigation technology in present-day South Africa. Currently there is a paucity of information about pre-colonial indigenous irrigation technology. This can be ascribed to a number of factors of which the invasion of modern Western traditions in the nineteenth century is perhaps the most important. A number of other factors for the apparent blind-spot is also presented in this study.

In southern Africa there are traces of indigenous pre-colonial irrigation works at sites such as Nyanga in Zimbabwe; the Limpopo River Valley; Mpumalanga; and South Africa's eastern Highveld. Reference is also made in this article to specific strategies of irrigation used by Iron Age communities, prior to the advent of a colonial presence. Finally, attention is also drawn to pre-colonial land tenure and state formation against the backdrop of Wittfogel's theories on hydraulic society.     

The Role of Provinces,States, and Territories in Shaping Federal Policy for Indigenous Peoples’ Health

ABSTRACT

Under both Canadian and United States law, the availability and quality of healthcare and health services to Indigenous peoples are primarily a federal responsibility. Nevertheless, sub-national authorities—most importantly provinces, states, and territories—play a crucial role by virtue of covering (often through federal mandate) services, and regulating health facilities and health personnel off-reserv(ation). While both federal governments have undertaken efforts to transfer, within their fiduciary obligations, their responsibilities for Indigenous peoples’ health to the management of Indigenous peoples themselves, that transfer has considered or included provincial, state, and territorial authorities and resources unevenly, and, in some cases, in tension with the objectives of respecting standards for quality and access. This article applies the methodology used by Canadian researchers of the sub-national health authority issue to the health transfer experience in the United States. The article summarizes findings that demonstrate similar deficiencies as those present in the Canadian transfer process. The article further outlines the experiences of Hawai`i and Ontario as offering models through which to address some of these deficiencies. The article finally suggests that there is a positive relationship between greater participatory models adopted by provinces, states, and territories and better health outcomes among Indigenous groups so included.     

The Sultan's Domain: British Cyprus' Role in the Redefinition of Property Regimes in the Post-Ottoman Levant

This article argues that property law is the main means through which Britain built its imperial sovereignty on Cyprus and in the post-Ottoman Levant. It charts the development of an official British expertise in Ottoman land legislation following the so-called affair of the Sultan's claims to properties in Cyprus. To settle this matter in the island which they had obtained to ‘occupy’ and ‘administer’ through a treaty with the Sublime Porte, colonial authorities were compelled to become conversant with the 1858 Ottoman Land Code. Hence, the article argues that because of its ambiguous status – a province occupied and administered by Britain but under the nominal suzerainty of the Sultan from 1878 to 1914 – Cyprus, as the first Ottoman territory to pass under direct Western rule, played a decisive role in the elaboration of a colonial knowledge in Ottoman land laws. And this, despite long-standing economic and political ties between Britain and the Ottoman Empire and exposure to other settings where layered land tenure systems prevailed. Published in treatises authored by British administrators of Cyprus, the legal expertise in Ottoman land law thus acquired was then transposed to other territories which passed under British rule, such as Palestine.     

Zimbabwe's ‘Fast Track’ Land Reform: What about women?

The wave of occupations of commercial farms in Zimbabwe starting in the year 2000 captured worldwide attention. By the end of that year, the government of Zimbabwe initiated the ‘fast track’ land reform process meant to formalize the occupations, and encourage further land appropriation and redistribution. Where are women in this process? The Women and Land Lobby Group (WLLG) was formed in 1998 by Zimbabwean women activists committed to the land issue. Since 1998 they have lobbied government to include women's interests in the design of land reform, and have made some inroads in improving women's formal rights to land as stated in policy documents. However, the current ‘fast track’ practices continue to privilege men as primary recipients of resettlement land, and the emerging role of traditional authorities in the land reform process marginalizes women. Other legal provisions that may help women struggle for changes remain weak. The contradiction between customary law, practices and attitudes and modern individual rights represents a complex battleground for women and land in Southern Africa, and calls for new feminist conceptualizations of the state as a vehicle for gender justice.     

Post‐Conflict Ambon: Forced Migration and the Ethno‐Territorial Effects of Customary Tenure

In post‐conflict contexts characterized by large‐scale migration and increasing levels of legal pluralism, customary land tenure risks being deployed as a tool of ethno‐territorialization in which displaced communities are denied return and secure land rights. This thesis will be illustrated through a case study of the Indonesian island of Ambon where a recognition of customary tenure — also called adat — was initiated in 2005 at the end of a high‐intensity conflict between Christians and Muslims. Although a system of land tenure providing multiple forms of social security for the indigenous in‐group, adat in Ambon also constitutes an arena of power in which populations considered as non‐indigenous to a fixed historical territory are pushed into an inferior legal position. The legal registration of customary tenure therefore tends to be deployed to settle long‐standing land contests with a growing migrant community, hereby legally enforcing some of the forced expulsions that were brought about by the recent communal violence.     

Land Tenures as Policy Instruments: Transitions on Cape York Peninsula

Over the last four decades, Australia's most remote marginal lands have provided an expansive space towards realisation of emergent national goals, involving recognition of Aboriginal land rights together with protection of ‘wilderness’ and semi‐natural ecosystems. This has been achieved by the revival of land tenures as instruments for the delivery of public policy, requiring innovative federal and state legislation, often driven by judicial determinations. More so than any other bioregion, Cape York Peninsula has experienced radical shifts in landownership, land titles, and property rights, reflecting its pivotal role as an arena in which emerging national goals are contested. The most immediately visible evidence of these changes is depicted in the tenure maps for 1970, 1990, and 2010. However, these maps provide an incomplete account of tenure changes, including new titles such as non‐transferable communal freehold and common‐law recognition of traditional native title, requiring belated responses by state and federal governments. The three benchmark maps provide a starting point for an examination of the currently resurrected role of land titles and land rights as policy instruments. The time‐specific attributes of each tenure category are discussed and linked to the policies underpinning each tenure and to the communities, political constituencies, resources, enterprises, and national values engaged with each tenure. Land titles and land rights are pivotal in political contests about regional futures, with the peninsula acting as a crucible in shaping wider national directions.     

Pastoralism and Land‐Tenure Change in Kenya: The Failure of Customary Institutions

Until recently, the Pokot in the highlands of the Baringo area in Kenya have practised semi‐nomadic pastoralism. Today they are rapidly sedentarizing and in many areas suitable for farming, they are adopting rain‐fed agriculture. As a result of these dynamics, claims to individual property on de facto communal rangelands have arisen, and to such an extent that they seriously threaten the peace of the community. This article explores the conflicts that emerge in the transition from common property to private tenure. Using locally prominent land disputes as exemplary cases, it focuses on the role of traditional gerontocratic authorities in the attempt to resolve a growing number of land disputes; on the emerging power of patrilineal clans and local elites in the enforcement of access to land; and on the incompetence of government agencies to intervene. The failure of customary institutions to ensure land tenure security leads to a situation in which women and marginalized actors in particular are threatened with displacement, and in which most local actors want the state to intervene and establish formal property rights.     

Reproducing the Plot: Making Life in the Shadow of Premature Death

A protracted process of policy development has been underway in Jamaica to curtail the widespread incidence of informal settlements. Against the logic of emerging policy, this article aims to reconnect present-time unauthorised use of space to ancestral refusals of plantation land monopoly. Through ethnographic research and a reconsideration of historical texts, the article situates insecure tenure in a long history of conflict over land and livelihood—conflict that produces a boundary around the authorised use of space. That boundary is porous and mobile, the outcome of a palimpsest of colonial violence and its negation. This argument interrogates the gap between “landless” and “ownershipless”, revealing both the role of incomplete dispossession in racialised social reproduction and the spatial practices through which Jamaicans “make life” even in the shadow of premature death.     

No Change for Thirty Years: The Renewed Question of Women's Land Rights in Rural China

Since the mid‐1990s, a new land‐use rights regime has gradually come into effect in China. It follows upon a series of earlier changes — land reform, collectivization and the first wave of contracting land to households — that paid attention to women's role in publicly recognized work and provided access to land. The new regime, which has gradually come into effect as previous (usually fifteen‐year) terms expired, authorizes an adjustment in land allocation which is then normally frozen for thirty years. An apparently inadvertent effect of this policy is not only the exclusion of young people from direct access to land for up to thirty years from birth, but the de facto separation of the majority of women who marry or remarry patrilocally from allocated land. ‘No change for thirty years’ (sanshi nian bu bian) has thus become the distinctive feature for women of China's current land‐use regime. The state has renounced its potential to reallocate land periodically and there is no indication that market mechanisms are filling, or are capable of filling, the void thereby created. This article examines local conceptions, responses and practices regarding land‐use rights and their transfer within this new framework, using field evidence from three upland agricultural communities in Chongqing and Sichuan (studied in 2003, 2004 and 2005), where land allocations were fixed in 1995, 1999 and 2001 respectively. The ethnographic findings are further explored in relation to contemporary research on gender and land rights.     

Gender,Traditional Authority,and the Politics of Rural Reform in South Africa

The new South African Constitution, together with later policies and legislation, affirm a commitment to gender rights that is incompatible with the formal recognition afforded to unelected traditional authorities. This contradiction is particularly evident in the case of land reform in many rural areas, where women’s right of access to land is denied through the practice of customary law. This article illustrates the ways in which these constitutional contradictions play out with particular intensity in the ‘former homelands’ through the example of a conflict over land use in Buffelspruit, Mpumalanga province. There, a number of women who had been granted informal access to communal land for the purposes of subsistence cultivation had their rights revoked by the traditional authority. Despite desperate protests, they continue to be marginalized in terms of access to land, while their male counterparts appropriate communal land for commercial farming and cattle grazing. Drawing on this protest, we argue that current South African practice in relation to the pressing issue of gender equity in land reform represents a politics of accommodation and evasion that tends to reinforce gender biases in rural development, and in so doing, undermines the prospects for genuinely radical transformation of the instituted geographies and institutionalized practices bequeathed by the apartheid regime.