Land tenure systems implemented in Africa today find their roots-one way or the other- in the complex colonial history of the continent. By a similar token, most African countries have embarked on land policy reforms to meet their current socio-economic, cultural, environmental and political needs and aspirations. Evidence from different parts of sub-Saharan Africa (SSA) supports this claim. This paper attempts to review the body of literature around the intricate relationship that exist between land tenure systems practiced in SSA and the influence of colonialism in their creation and implementation. It is time for a systematic decolonization process of the discriminatory and oppressive land tenure systems that originate from the colonial era. It can be concluded that, an effective decolonization process for land tenure systems in SSA should not only involve the assessment of the socio-cultural, economic, and political attributes of different countries, but also a consideration for the extent to which modern land policy reform can be guided by and uprooted from it. This work uses a case study of a land tenure reform process in Mozambique to show that decolonization is arduous, but not impossible.
Colonialism and its omnipresent legacy in Africa have undoubtedly been one of the strongest features of the continents’ history. Generally involving the (in) direct domination of African nations by western powers, colonialism often resulted in the oppression of indigenous people, the exploitation of natural resources and the institution of new administrative regimes to govern the African people (Hansungule, 2000; Mengang, 1998). Colonization had profound implications for land tenure systems in Africa. With European powers seeking to stretch their colonial domination in different parts of the world, they pushed indigenous residents to marginal areas upon arriving into African and Asia territories (Colombijn, 2012). It should be noted that since colonialism, most African nations have seen major sections of its population systematically deprived of ancestral land, and access to new lands, especially in urban areas, through discriminatory land tenure systems.
In the decades following the second half of the 20th century, almost all European colonial empires in Africa were progressively phased out and replaced by new independent and often democratic entities (Bogaerts
and Raben, 2012; Klose, 2014). Hence, the term "decolonization" as used in this paper is associated predominantly with developments in African land tenure systems within this time period. While most African countries have today gained their independence from their former colonial masters, many institutional regimes, and practices established during the colonial era have affected the lives and future of the most SSA nations. Some (if not most) land tenure systems practiced in Africa find their roots and trajectory in colonialism (Cotula, 2007; Direito, 2013; Toulmin and Quan, 2000; Zambakari, 2017). The institution and promotion of discriminatory, oppressive, and contentious land tenure systems during the colonial period has generated complex problems to modern democracies in SSA Africa. This study defends this claim throughout in this paper, while emphasizing the dire need for a systematic decolonization process for land tenure systems in SSA Africa.
Decolonization has been invoked multiple times in the African continent in different contexts (Bogaerts and Raben, 2012; Chitonge, 2018; Cooper, 2013; Klose, 2014). With respect to the land question, decolonization has seen multiple directions. Some scholars argue that while several attempts to decolonize land tenure are ongoing, these efforts have not been radical enough to guarantee a logical completion (Chitonge, 2018). Others emphasize the challenges, including conflicts and war, that the decolonization of land tenure has brought with it (Davis, 2007). Modern land tenure systems in SSA should not only be decolonized, but also revised and implemented with special considerations for the socio-cultural, economic, demographic, and political attributes of different countries. More so, consideration for land policy reforms emanating from the decolonization of land tenure systems is of central importance. The colonial history of Africa since independence paints the rather distasteful picture of inexistent and lethargic government interventions to fairly redistribute land among the poor and historically disadvantaged populations (Hansungule, 2000). The result of inaction in reforming land tenure systems to meet contemporary needs, has generally resulted in land ownership disputes, land acquisitions, and populations displacements in many SSA Countries (Evers et al., 2013; Fassil, 2015; Hunt, 2004; Kalabamu, 2019). Nonetheless, in decades following the independence of most African countries, there has been a shift in the land question, how is land governed and who should be involved? with countries taking the lead on land reforms including but not limited to land nationalizations, tenure reforms (land registration and titling), the recognition of customary rights, agrarian reforms (land redistribution and settlement) and collectivization, and the institution of land development projects and protected areas (Quan, 1997; Toulmin and Quan, 2000: 33).
Using the example of Mozambique, the study showcases the benefit of adopting a systematic decolonization of land tenure within the African context. Mozambique was chosen as a case study to illustrate the decolonization process because of: a) its international reputation of having the most progressive land laws in Africa (LandLinks, 2019b; Palmer, 2000)that reflects many of the “international guiding instruments” norms (Nhantumbo and Salomão, 2010: 20); and 2) the amount of participatory (although consultative in nature) decision-making that went into its land tenure reform.
Land tenure systems and African colonial history
The land tenure discourse in Africa can be traced as far back as the colonial era, with the arrival and domination of indigenous groups by white settlers. The scramble for Africa that began in the 1880s did not only affect the political history of most SSA nations, but also shaped the socio-economic models by which the natural resources of these countries were governed. Land, one of the most historically important natural resource and the main source of livelihood-and power-for most sub-African subsistent nations was progressively lost under colonial regimes (Belaunde et al., 2010; Fisiy, 1992). The practice of communal (customary) land tenure systems previously used by most indigenous groups in Africa, slowly evolved towards private ownership, single management and the creation of newly formalized land administrative structures (such as land registration) with western influence (Belaunde et al., 2010; Colombijn, 2012; Mengang, 1998; Njoh, 2013; Platteau, 1996). This change in African land tenure align perfectly with the main precepts of the Evolutionary Theory of Land Rights, which prescribes that: in the face of increasing population pressure and competition, customary land rights spontaneously evolve towards rising individualization, usually prompting demands in the ranks of land rights holders for the creation of duly formalized private property land tenure system through state intervention (Cotula, 2007; Platteau, 1996: 29). This change in land tenure system during the colonial era manifested itself in the expropriation of large parcels of indigenous land for plantation agriculture and the construction of white settlements among other things (Fonjong et al., 2010). While, it should be noted that colonial influence around land tenure was different in different parts of SSA, the general tendency was a progressive (and sometimes swift) change in the status quo around land tenure governance and management.
Policy instruments appeared to be the main strategy used by the colonial masters to control the sovereignty of African nations around land tenure. With the introduction of new systems of administration and governance, the loss of African customs and traditions around land tenure was inevitable (Chitonge, 2018; Hansungule, 2000; Onoja and Achike, 2015). In Ghana, for example, the British land regime used two main policy instruments to govern national land: expropriation that included some kind of Compensation and appropriation without any compensation (Larbi et al., 2004). These practices were justified through discriminatory bills introduced by the colonial masters such as Public Lands Ordinance of 1876, the Northern Territories Ordinance of 1902, and the Public Lands Ordinance. The Northern Territories Ordinance for example prescribed that, " all the lands of the protectorate, whether occupied or not were put under the control and subject to the disposition of the Governor, to be held and administered for the use and common benefit, direct or indirect, of the natives" (Larbi et al., 2004: 118).
Over time, especially with the granting of independence to African colonies, most colonial practices were transferred into modern democracies with the enactment and implementation of discriminatory and oppressive land tenure policies and laws that dispossessed and limited accessed to native lands from local indigenous groups (Larbi et al., 2004; Njoh, 2013; Zambakari, 2017). The creation of formalized land titling laws, for example, under statutory land tenure systems created a myriad of problems for indigenous customary land rights holders. In Cameroon, for example, the post-independent land tenure formalization system (involving a land titling mechanism) introduced with the creation of 1974 Land Ordinances not only created substantial socio-economic inequalities around the land discourse (as it favored social elites including bureaucrats and politicians) but also dispossessed customary land right holders of their ownership and access to land (Njoh, 2013). Fundamentally a continuation of the colonial land administration regime, the postcolonial land legislation in Cameroon (the 1974 Land Ordinances) prescribed that “all interest in land be formally registered in the National Lands Registry” (Belaunde et al., 2010; Njoh, 2013: 758). The problem with the new land registration mechanism in Cameroon was the tedious and expensive process for registering and transferring customary lands rights under the legal statutory requirements (Belaunde et al., 2010: 20). This process has made it very difficult for low- and middle-income families to acquire legitimate land titles in Cameroon.
Decolonization of land tenure systems
The term “decolonization” as used in this paper depicts the process through which colonial rule is dissolved, with an emphasis for the various political, economic, cultural and social dimensions specific to the African continent (Klose, 2014). Although the focus is on land tenure systems, it is important to note that, the decolonization process in SSA transcends multiple scales and sectors of activities, directly or indirectly connected to land tenure. Agriculture, industrial development, settlement, and urban land use systems are all common sectors of activities that are (in) directly connected and affected by the forms of land tenure systems implemented within different SSA contexts. More so, the words land tenure systems and land regimes are used interchangeably in this section to mean the same thing.
The need for a decolonization of land tenure regimes in Africa finds its context and meaning in the controversial reaction to statutory land administration regimes introduced in almost all SSA countries towards and after independence. Statutory land tenure systems involve the administration of national land under a duly formalized legal framework governed by the state (Lund and Boone, 2013; Platteau, 1996; Toulmin, 1998). This meant that customary land rights previously observed by the indigenes would be lost, if they were not transferred through land registration under the new legal framework (Platteau, 1996; Zambakari, 2017). In Sudan, for example, the statutory land tenure regime brought with it two land legislations: The Unregistered Land Act of 1970 and the Civil Transaction Act of 1984 that left many communities landless and/or displaced (Zambakari, 2017). While some scholars argue for the recognition and formalization of customary land tenure regimes (Cotula, 2007), others call for the integration of both customary and statutory land tenure systems (Toulmin and Quan, 2000). However, it is important to note that every country has unique sets of attributes that might make the decolonization process either smooth or challenging (Table 1).
It is fundamental to revisit the main types of land tenure regimes implemented in modern SSA and how they emanate or not from colonial rule. Communal customary land tenure has unequivocally been the most popular land tenure system practiced in many parts of SSA prior to colonial rule (Cotula 2007; Feder and Feeny, 1991; Zambakari, 2017). This practice involves the shared responsibility of communities (often headed by a chief) to protect and use indigenous lands (Belaunde et al., 2010) under a set of unwritten laws guided by traditional custom and traditions (Cotula, 2007). With the arrival of the colonial masters, the local groups’ (including the chiefs) ability to own, use, and protect indigenous land under customary land tenure was adulterated. In Cameroon for example, colonial masters maintained customary laws around land (governed by the local chiefs) by introducing a plural system of land tenure administration which included a statutory framework for managing land governed by appointed authorities (Belaunde et al., 2010; Fonjong et al., 2010). This was done in a bit to maintain social order and cohesion in the phase of colonial domination. Other forms of land tenure systems identified within SSA include; open access (none), private property, and state (statutory) property (Feder and Feeny, 1991: 137).
A brief case study of land tenure decolonization (The Mozambique experience)
What can we learn from African countries who have attempted to decolonize their land tenure systems? The answer is a handful. The claim that a decolonization process for land tenure is possible can lead one to the assumption that everything becomes rosy for those African countries. This is clearly not the stance or perspective this study takes. The study however seeks to lay emphasis on the possibility that establishing goals and adopting a strategy during the decolonization process, can produce policy outcomes that are effective and durable. The author believes this assessment might serve as a road map for other aspiring SSA nations to taken-on similar goals.
In Mozambique the decolonization process has been fueled by the need to veer away from the colonial footprint of their Portuguese colonial masters who introduced discriminatory institutions like the ‘indigenato’, which divided the Mozambican people into settler citizens and native subjects (O’Laughlin, 2000). Colonial domination was also manifested in expropriative land practices like the creation of native reserves where indigenes could farm and live on land but could never own it (Direito, 2013). After the departure of colonial masters following the war of independence in 1975, many Mozambicans lost their identity around land as many were displaced from their lands and homes (Unruh, 1998). Nonetheless, this also meant that the fate of land legislation rested in the hands of the newly created government. One of the first approach taken by the government, was to nationalize all colonial plantations and farms units while organizing subsistence farmers into agricultural cooperatives (LandLinks, 2019b).
The 1997 Land Law in Mozambique can be considered as the landmark in the decolonization process as it guided the creation of a national land policy reform. The success of Mozambique came as a result of the application of a participatory framework around land legislation, involving an NGO Land Campaign which promoted and informed rural people about their rights under the new law (Negrao, 1999) and a debate between multiple stakeholder groups around the land question (Palmer, 2000). Prior to this land law were the 1979 and 1986 land laws which permitted individuals to acquire government-issued titles as the only mechanism for foreign access to land (Toulmin and Quan, 2000). These two laws were not very popular as they restricted access to land for many groups, especially the rural poor, women, and peasant farmers. Two pivotal changes provided by the 1997 law required that: communities participate in the administration of natural resources and the resolution of conflicts (Arts. 10 and 21); and communities, as well as individuals, may hold land and may obtain legal title (Art. 7) (Palmer, 2000; Toulmin and Quan, 2000, pp. 284–286) even without formal documentation of those rights. These requirements are very different from what prevailed in the colonial era like the native reserves, whereby communities could use land but could not hold or own it. More so, a central theme of this case study is that community consultations around land policy formulation and implementation are indispensable in creating social cohesion between different stakeholders (Palmer, 2000). Negrao (1999) maintains that the considerable level of consultation involved in Mozambique had the effect of diluting consistent policy and rendering the law "more a platform for understanding between the different actors and interests" than a strategy of reform (Palmer, 2000, p. 285). Multiple studies across Africa reveal that in several instances where new laws promoting land registration have been established, most people-especially the poor in rural as well as in urban areas-have been unaware of it (Atwood, 1990; Barrows and Roth, 1990; Njoh, 2013; Palmer, 2000; Platteau, 1996). In Mozambique for example, in order to educate the people on the 1997 land law, a national land campaign was organized (Negrao, 1999)
More recently in 2010, the Mozambican government created a Consultative Forum on Land, as a platform for multisector dialogue on land issues and to assist in the legislative reform process (LandLinks, 2019b). After nine sessions were held between 2010 and 2017, there was a broad consensus among forum participants that the essentials of the 1997 Land Law should not be changed. While this shows level trust and commitment of stakeholders in this land law, it also demonstrates the peculiarity of the systematic approach taken by the Mozambican government to eradicate colonial influence around its national land legislature. As Mozambique moves into the future, it is certain that they will continue to face challenges pertaining to the land question. However, if they continue on the current path of public consultation and participatory collaboration on land issues, these challenges might rapidly find practical and effective solutions.
Decolonization process in Sub-Saharan Africa
Considering that there is a need to adapt African land tenure regimes to the current needs of different countries, I proposed a systematic decolonization process, which is in no way panacea for all African nations, but a procedural approach, adaptable to different SSA countries. A systematic approach that considers the uniqueness of individual countries is indispensable for an effective decolonization process of land tenure. The study identified four main stages for an effective decolonization of land tenure in Africa. They include: the identification and thorough review of colonial land tenure systems by the population; the assessment of societal challenges around current land tenure regimes; the co-creation of a comprehensive, inclusive, feasible, and acceptable land tenure legislation (land policy reforms) that reflects current needs and aspirations of individual entities; and the implementation of the newly co-created land reforms in a strategic manner.
The identification and review of the colonial land tenure regime by the population is a critical first step in the decolonization process. If a major portion of the population does not know or understand the current land regimes by which land is governed in their country, then a critical problem subsists. Evidence from many parts of Africa shows that most indigenous and local groups (like the pastoral nomads, subsistent farmers, and uneducated urbanites) that generally observe customary land rights are not always aware of changes in national land tenure systems (Atwood, 1990: 662; Pierce, 2013; Platteau, 1996: 43-44). The argument here is simply that, new land tenure systems must be defined (including the most specific requirements of each statute) and made accessible to all citizens. This lack of information about changing land tenure regimes is often followed by terrible consequences in the ranks of minority groups-manifested in the form of land insecurities (Colombijn, 2012; Ubink, 2007), land ownership conflicts (Kalabamu, 2019; Platteau, 1996), and land dispossession through forceful land acquisitions (Hansungule, 2000; Larbi et al., 2004; Zambakari, 2017). Once the current land tenure regimes have been identified and understood by the population, they can begin to isolate eminent benefits as well as challenges that it provides for them.
Just as understanding the legal framework by which land is governed is important, assessing societal challenges around these systems is even more significant in the decolonization process. Since most SSA African countries have different colonial histories, geographical, cultural, socio-economic, and political attributes, evaluating the societal challenges that each has around land tenure is critical in the road to decolonization. Some scholars have identified societal challenges around colonial land tenure regimes to include the lack of fairness, justice, equity, and inclusion in their creation, enforcement, and implementation (Njoh, 2013; Peters, 2002). Njoh argues for example, that the new land tenure formalization requirements, whereby the procurement of government-issued land titles is the primary (unique) route to landownership, in Cameroon has contributed to aggravated socioeconomic inequalities between the indigenous communities and the social elites (including bureaucrats and entrepreneurs) who tend to control the system in their personal interest (Njoh, 2013: 760). In some instances, the new land regimes include specific provisions that upholds and strengthen the position of the state vis-à-vis other societal actors (Njoh, 2013).Other scholars have also supported this argument by asserting that political and bureaucratic leadership in many parts of Africa has often taken advantage of such legal provisions to allocate land for personal gain, political domination, or as a reward for political support (DeLancey, 1989; Fisiy, 1992; Njoh, 2013; Ntsebeza, 2007). Understanding and working towards the resolution of some of these societal challenges is indispensable.
The decolonization process of land tenure regimes becomes effective and inclusive when a new and comprehensive system for managing and distributing national land resources is co-created by multiple stakeholders and actors within the country through an inclusive participatory framework. This is certainly the most important stage of the decolonization process as the voices, needs, and concerns of different parties will be perceived, understood, and taken into consideration in formulation of new land legislation. Several scholars have advocated for a holistic approach to land tenure reform involving the incorporation and increased government attention to public participation in the process (Alden and Mbaya, 2001; Okoth-Ogendo, 1998; Toulmin and Quan, 2000). In some African countries like Mozambique, Malawi, South Africa, and Tanzania, the level of public consultation in the formulation of new land policies and laws have been phenomenal (Alden and Mbaya, 2001; Toulmin and Quan, 2000). It should be noted that these countries have nonetheless been confronted with implementation challenges rendering the process slow, expensive, and complex (Okoth-Ogendo, 1998; Toulmin and Quan, 2000: 270). In Uganda, for example, upon the introduction of a participatory approach, the process of land reform not only lacked in stakeholder commitment to it, but also needed to be strengthened with respect to the devolution of authority over land management (Nsamba-Gayiiya, 1999: 11). Hence, while it is important to draw on multiple perspectives in the decolonization process, it is fundamental to look for ways in which to bridge pre-existing socio-economic, political, and cultural differences between the different stakeholders involved.
The final stage if the decolonization process necessitates a strategic implementation of the newly co-created land tenure policy. The actors involved at this stage are pivotal in the success or failure of the implementation process. I believe that these actors whether in governmental or non-governmental positions need to have a shared vision and work collaboratively (Gruber, 2010). The trend in Africa today shows that most previous colonial masters tend to assist (in the form of financial and technical capital) in the process of land policy reforms and implementation even after independence (Hunter and Mabbs-Zeno, 1986; Toulmin and Quan, 2000: 268). While many SSA African countries need this assistance, this process tends to limit the capacity of these independent nations to control and determine their future around the land question, generally resulting in negative outcomes. In Zimbabwe, for example, controversies over land has strained relations between the British and Zimbabwean governments (Palmer, 1990), demonstrating that foreign aid, on a subject as politically contentious as the land question, usually leads to problems, especially with the involvement of ex-colonial powers (Toulmin and Quan, 2000: 268). While the study is not stating the case for a complete divorce from western influence around African land policy implementation, it advocates for the observation and use of local strengths, knowledge, and forces in the implementation of land policies.
Opportunities and challenges to land tenure decolonization
While the colonial masters have left the African continent, colonial hegemony is ever-present, controlling multiple sectors of activities and contemporary discourses-including the land question. The fact the most SSA African countries have embarked on some kind of land policy reform in the decades following their independence (Quan, 1997; Toulmin and Quan, 2000)shows that there are tremendous opportunities for the decolonization of land tenure regimes. To a greater extent, this trend demonstrates the intrinsic value African nations perceive in operating land tenure regimes that reflect their socio-cultural, political, economic, and environmental values. The transition to new land legislation should be guided by democratic and decentralized ways of governing and managing land. Just as the colonial period lasted a long time in Africa (19th century into the 20th century), the decolonization process will as well. The time factor is a vital resource that can play in the favor (disfavor) of African democracies in the road to land tenure independence.
However, the influence of western powers in guiding these modern transitions seems to present challenges to the decolonization process-especially in countries were democracy is weak and financial stability is uncertain.
The example of Zimbabwe described above is classic case in point. Because most of SSA remains heavily dependent on development assistance from the West, these African governments have been forced to abide by the standards and processes of their donor countries around the importance of the land question and how it should be addressed (Toulmin and Quan, 2000, p. 3). But because most African governments need the assistance it becomes difficult to divorce from these contemporary agreements with former colonizers. Palmer (2000) maintains for example that, land policy implementation becomes problematic in Africa because of "the contentious and highly political nature of land, and current financial constraints on governments" (p.275). The empowerment and protection of African government officials around new land legislation by Western powers in post-colonial times tends to hamper the decolonization process of land tenure as it maintains a stronghold of colonialism in the modern era. In the case of Cameroon, the creation of a discriminatory land legislation after independence favored bureaucrats, politicians and business people (Njoh, 2013). To a certain extent, the influence of the West in guiding African land policy reform appears to mimic colonial practices. During colonial rule, the incorporation of traditional rulers into the ruling structure of the colony was done with the goal of maintaining greater control over the native population (Mamdani, 2001). While this argument does not reject the ability of western powers to guide African progress around the land question, it certainly condemns the neo- colonial domination of these countries by the West.
Another important challenge to the decolonization process relates to the nature of the new land legislation and how it would be implemented to govern national land. Given that most SSA countries (especially tribal groups) have different relationships with land, finding a common law that meets the needs of both customary and statutory land right holders could be challenging process. It is commonplace in SSA to find tenure dualism in practice (Cousins, 2000). Cameroon for example practiced a dual land tenure system in the colonial era (Njoh, 2013). While some scholars support this argument by claiming that tenure dualism can be a source of tension, often resulting to conflict over land (Chitonge, 2018: 31; Cousins, 2000), others relish the possibility of integrating both systems as a feasible way forward (Cotula, 2007)in addressing the land question. This challenge presents an amazing opportunity for collaboration and discussions amongst stakeholders around the most effective approach for govern land tenure.