Fair Land Governance. How to Legalise Land Rights for Rural Development

Abstract

The Leiden University Press series on Law, Governance, and Development brings together an interdisciplinary body of work about the formation and functioning of legal systems in developing countries, and about interventions to strengthen them. The series aims to engage academics, policy makers and practitioners at the national and international level, thus attempting to stimulate legal reform for good governance and development. All rights reserved. Without limiting the rights under copyright reserved above, no part of this book may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book. Contents In the Face of Two ParadigmsIn this volume of essays the authors reflect on legal means to improve the position of the many smallholders in the developing world who live and work on land that they do not officially own. From quite different perspectives they explore how to provide more tenure security through better land law. The authors recognise that for rural development an appropriate land law is necessary but not sufficient. They also realise that ideas about what precisely constitutes an appropriate land law have for too long been informed by two contradictory paradigms, namely the 'install full private property' paradigm and the 'leave customary law undisturbed' paradigm. The essays in this volume demonstrate that the full private property approach, which has come to dominate international and domestic land policies over the last decades, has major drawbacks. It has often done little good for rural smallholders as it neglected existing land management and land use practices which were embedded in local circumstances. The main assumption on which it rests -legal institutions can protect the poor man's legal rights -has unfortunately proved to be a gross overestimation of state capacities for effective and just land governance.On the other hand, the authors do not trust approaches which recommend 'leaving customary law undisturbed' either. Proponents of such approaches have tended to perceive rural communities as culturally distinct and tied to their land with collective landholding as the centrepiece of their arrangements. They favour rigorous legalisation of collective holding of land, by which the land is declared collective and inalienable. In the face of large-scale dispossession of local communities by state and corporate actors, this approach is often advocated as the only effective way to protect existing land rights. A Leiden-Based Research Project Featuring 'Third Ways'This book is the result of a Leiden-based research project on legalisation of land tenure. The project already resulted in a volume with studies from eight countries in Africa, Asia and Latin America entitled Legalising Land Rights (Ubink, Hoekema & Assies 2009).2 Both volumes show a tremendous variation in local circumstances as well as in t...

Urbanisation-induced displacements in peri-urban areas: Clashes between customary tenure and statutory practices in Ugbo-Okonkwo Community in Enugu, Nigeria

“…while in others, they are juxtaposed with their statutory equivalents in form of legal pluralism (Otto & Hoekema, 2012;Berrisford & McAuslan, 2017;Bah, et al, 2018, p. 111). Possibly in most peri-urban contexts, they are witnessing a neo-customary turn -the increasingly adaption to land market pressures through community co-produced land subdivisions with assorted socio-economic and institutional transformations (Onyebueke & Ikejiofor, 2017;Chimhowu, 2019).…”

“…Scholars have attributed such beneficial outcomes to reforms that incorporate enhanced tenure security (Otto & Hoekema, 2012;Alden Wily, 2018a;Boone, 2019) as well as integrated planning solutions (Allen et al, 2015). While the former option aims to empower customary landholders and the poor through property rights determination, the latter seeks to integrate urban, rural, and regional perspectives of planning in a way that respects enterprise, livelihood, and reciprocal flows between the urban, peri-urban, peri-rural, and rural domains (see Figure 2).…”

Land Grabbing, Sustainable Development and Human Rights

“…214 It is also argued that individual titling may result in conflict between members of communities that had in the past shared communal land. 215 Individual titling would also affect the ability of pastoralists and other groups like fishers to access land to make it possible for them to continue with their traditional way of life. There are also concerns that individual titling would exclude women and other vulnerable groups.…”

“…216 An alternative approach is to formally recognize existing community-based tenure systems and protect traditional patterns of land use through legislation, 217 although this approach is vulnerable to the argument that it may entrench discriminatory practices by excluding women and other minorities. 218 There is a growing consensus that any changes to land tenure systems should be based on a detailed assessment of the specific local circumstances. 219 The SD-HR framework has the potential to ensure that the protection of human rights and the environment are given due consideration in the development of local approaches to land rights.…”