Human Rights and Land in Africa: Highlighting the Need for Democratic Land Governance

Abstract

Human rights principles form the foundation for the move towards responsible land administration. They are embedded in such international treatises as the Sustainable Development Goals, New Urban Agenda, and Voluntary Guidelines on the Responsible Governance of Tenure, among others. These treatises provide the backdrop to the development of land policies and administration systems that seek to secure land tenure and land rights for all through adherence to human rights principles such as non-discrimination, equity and justice, gender responsiveness, transparency and accountability. Yet the human rights tradition is built on Western values and biases, and there is some contention as to the universal acceptance of this. In discussing land rights in Africa, assumptions about the universality of human rights should be weighed against such contentions if land reform programmes are to sustainably succeed. In this chapter, the arguments around human rights are presented in the context of African land reform, and a model of democratic land governance is proposed.

Do Design Science Research and Design Thinking Processes Improve the ‘Fit’ of the Fit-For-Purpose Approach to Securing Land Tenure for All in South Africa?

“…This is a focus of Moreri et al [60], who highlight that a strategy for public participation is needed. Hull and Whittal promote a Human-Rights-Based Approach that views participants in the process as active rights-holders rather than passive beneficiaries [42]. Top-down and bottom-up processes of engagement and formulating goals, objectives, and strategy should be considered [60]-the duties of the state are paired with citizen and community rights [42].…”

“…In many cases, the increasingly popular systems thinking approaches are used to describe and assess frameworks, for example legislative, technical, and political systems; e.g., [13,29,41]. The Human-Rights-Based Approach is endorsed as promoting integration between these systems while also promoting the acknowledgement and fulfillment of the South African State's vertical obligations [42] (i.e., the obligations of the state towards their citizens). Unfortunately, a Human-Rights-Based Approach is seldom or only very briefly mentioned in State policy (e.g., in the Communal Land Tenure Policy [43]) with a shift away from this approach to one of indirect rule used in past oppressive regimes [26].…”

“…A combined approach involving description and analysis of the context, while empathizing to include sensitivity to stakeholder needs, would be more useful than any of the approaches alone. This would help in complex cases, where there are unhelpful power relations, and to understand the impact of new technologies in the context [25,26,41,42]. It would include identification of the drivers of change in context-this is an important aspect that influences design later on in the process [14,26].…”

“…It would include identification of the drivers of change in context-this is an important aspect that influences design later on in the process [14,26]. Hull and Whittal [42] highlight that conceptions of human rights and land rights are culturally nuanced-land rights should be viewed through a socio-cultural lens in the understanding of context. Seeing through a socio-cultural lens different from your own is the essence of empathy, endorsing the DT approach.…”

“…The problems identified in South Africa with respect to land delivery have been extensively reviewed [1, 6,8,9,19,42,44,48,[53][54][55][56][57][58]. With comprehensive reports forming part of the review, saturation sampling was reached-the list of problems is comprehensive and spans those identified in the early stages prior to the implementation of land reform, as well as those identified reflectively.…”