‘Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies

Abstract

Hernando de Soto, advocate of central registers of land rights, raised the possibility of Africans being culturally unsuited to property rights. This article argues that sub‐Saharan Africa's high proportion of tribal/communal land (as distinguished from private and public/state land) results from a combination of geography, history, and population distribution. External colonial rule created a dual system of land tenure that restrained private property rights in the tribal/communal land areas. The research draws upon archival evidence from the colonial land tenure panel chaired by Lord Hailey (1945–50). The finding is not that Africans are inherently culturally unsuited to property ownership, but that colonialism reinforced pluralistic forms of property rights, which create particular challenges to land law reform.

Full text

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JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 3, SEPTEMBER 2013
ISSN: 0263-323X, pp. 403±19
`Culturally Unsuited to Property Rights?': Colonial Land
Laws and African Societies
Robert Home*
Hernando de Soto, advocate of central registers of land rights, raised
the possibility of Africans being culturally unsuited to property rights.
This article argues that sub-Saharan Africa's high proportion of tribal/
communal land (as distinguished from private and public/state land)
results from a combination of geography, history, and population
distribution. External colonial rule created a dual system of land
tenure that restrained private property rights in the tribal/communal
land areas. The research draws upon archival evidence from the
colonial land tenure panel chaired by Lord Hailey (1945±50). The
finding is not that Africans are inherently culturally unsuited to
property ownership, but that colonialism reinforced pluralistic forms
of property rights, which create particular challenges to land law
reform.
`ARE AFRICANS CULTURALLY UNSUITED TO PROPERTY RIGHTS
AND THE RULE OF LAW?'
This was the challenging question posed in the title of an essay by Hernando
de Soto, the leading writer on property rights and legal empowerment of the
poor.
1
De Soto cites the assertion that African societies are `steeped in
traditional cultures and are unsuited to market-oriented development'. While
his essay, drawing upon his work in Tanzania, goes on to reject the assertion,
the question in the title is worth further exploration in its own right, and
403
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Anglia Ruskin University, Bishop Hall Lane, Chelmsford, Essex CM1 1SQ,
England
robert.home@anglia.ac.uk
1 H. de Soto, `Are Africans Culturally Unsuited to Property Rights and the Rule of
Law? Some Reflections Based on the Tanzanian Case' in Rights and Legal
Empowerment in Eradicating Poverty , ed. D. Banik (2008).

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because of de Soto's eminence in the global discourse around property
rights, and the considerable resources committed to land titling programmes.
Africa is the world's second-largest and second-most-populous continent,
containing a fifth of the planet's total land area, with a human population of
about one billion, which makes the investigation significant.
2
Africa (at least sub-Saharan Africa) has the highest proportion of tribal/
communal land, as distinguished from private and public/state land, of any
continent. This can be attributed to a combination of geography, history and
population distribution, and was reinforced by a history of external colonial
rule, which created a dual system of land tenure that restrained private
property rights in the tribal/communal land areas. This article argues, not
that Africans are inherently culturally unsuited to property ownership but,
rather, that colonialism resulted in pluralistic forms of property rights, which
has created particular challenges for land tenure reform.
The articles focuses upon the former British colonies of West, East,
South, and Central Africa, which represented the largest share (abut 40 per
cent by land area) in the European countries' `scramble for Africa' after
1885. British methods of colonial management were based on their experi-
ence in India and the Middle East, drawing upon the much older imperial
powers who had preceded them in the Mogul and Ottomans respectively. Of
particular relevance to property rights are British land policies deriving from
their ideology of indirect rule and the dual mandate, associated with Lord
Lugard and the so-called trusteeship principle.
The article first explores what might be distinctive about African pre-
colonial societies' attitudes to land, drawing upon research in social anthro-
pology. This discipline established itself largely from studies undertaken in
sub-Saharan Africa, often commissioned as a form of intelligence-gathering
in the `native reserves'.
3
These tended to see African society as static and
fixed, and drew upon structural-functionalist theory in social anthropology,
which confirmed that view. Much of this work was brought together by Lord
Hailey's Colonial Land Tenure Advisory Panel in 1945±51, a significant
source hitherto neglected by researchers, and its minutes, together with other
Colonial Office files in the United Kingdom National Archives (NA Kew),
offer a valuable record of British colonial land policy in Africa. Recording
property rights in a comprehensive state-controlled land registry, as discussed
by its advocates in Hailey's panel, was an approach which derived from
British colonial management in the Middle East, and predates Hernando de
Soto and World Bank land titling programmes by half a century.
Thus the legal history of the colonial engagement with land is key to
answering de Soto's question. After a century of dramatic change in Africa,
which saw the arrival and departure of European `colonial masters' over
404
2 UNDESA, World Population Prospects (2010).
3 For the relationship between anthropology and colonialism, see W.D. Hammond-
Tooke, Imperfect Interpreters (1997).
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most of the continent, the ever-changing tapestry of African land law has to
respond to intense and multiple pressures: population growth, urbanization,
environmental change, foreign inward investment, and global market
capitalism.
4
The concept of the rule of law is increasingly recognized as
critical for economic, political, and social development, and both the United
Nations and the World Bank, together with other aid agencies, are com-
mitted to such rule of law activities as strengthening institutions of justice
and dispute resolution processes.
5
The underpinning theory remains subject
to debate, especially how far the legal order should protect the human rights
of the poor, with major implications for land and property law reform.
6
The
pluralistic system of property rights established in the colonial period still
exists, and indeed communal tenure may operate for the welfare of the poor.
AFRICAN CULTURES OF LAND
There are many British colonial reports on land matters, which frequently
refer to a distinctive African culture of land. The words attributed to `A
Nigerian Chief' were (and still are) often quoted as what that distinctive
culture meant: `I conceive that land belongs to a vast family of which may
are dead, few are living and countless are yet unborn.'
7
Land was thus not
merely a possession and a means of production, but an intrinsic part of
Africans' social, economic, political, and spiritual being, something to be
cherished, preserved, and responsibly enjoyed by present and future genera-
tions. Land belonged not to individuals but to the community, family or
lineage, and was so recognized by colonial case law.
8
As one paper to
Hailey's panel put it:
Land to the African is not what it is to the European: a possession, a source of
wealth, an economic asset or an object of investment . . . land to the African is
the very source and basis of the life and existence of his family or tribe, and is
something more personal and fundamental to him, and of almost literally
mystical significance.
9
According to a British Director of Lands and Mines for Tanganyika:
405
4 R.K. Home, Essays in African Land Law (2011).
5 United Nations, Approach to Rule of Law Assistance (2008).
6 B. Davy, `The poor and the land' (2009) 80 Town Planning Rev. 227; P. Nonet and P.
Selznick, Law and Society in Transition (1978).
7 This quotation prefaced C.K. Meek, Land Law and Custom in the Colonies (1949),
the classic study of British colonial land law. The chief in question was the Elesi of
Odogbolu in testimony before the West African Land Committee in 1917.
8 See, particularly, Amodu Tijani v. Secretary of Southern Nigeria (1921) A.C. 399.
9 Paper on Land Tenure and Land Policy in the British African Territories (1951) in CO
852/1085/6 (NA Kew).
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The Bantu had no idea of a right to the land itself in re, land was just there for
cultivation and was in no sense a chattel . . . A man had security of tenure as
long as he behaved himself and obeyed the chief, and, if the land was
agricultural, kept it in cultivation . . . The land was there for the community
and no-one could use it to the detriment of the community . . . The Land
Officer and myself are of the opinion that it would be a disaster to allow the
African to slide into possession of what would, to all intents and purposes, be
an absolute freehold over land which the African occupies under native law
and custom.
10
This kind of land law has been given various names: tribal, customary,
indigenous, aboriginal, or native. Glenn identifies it as a legal tradition
which he labels `chthonic', meaning in harmony with the earth:
Living close to the land and in harmony with it means limiting technology
which could be destructive of natural harmony. So there is no incentive for the
development of complex machines, and no way of accumulating wealth
through their use. There is therefore little reason to accumulate personal or
moveable property. For the same reason there is no reason to accumulate land,
or map it (other than to show trails); there is nothing to be done to it or with it,
except enjoy its natural fruits. Chthonic notions of property are therefore thus
of a chthonic life, and the human person is generally not elevated to a position
of domination, or dominium, over the natural world.
11
Such a legal tradition can be found in many parts of the world, not only in
Africa. It seeks to protect shared values and communal peace rather than
individual rights, and operates within homogeneous social groups, supported
by oral traditions and communal sanctions. In recent years it has been
accorded greater recognition as indigenous groups increasingly pursue legal
challenges and human rights arguments to assert claims to land against the
state, emboldened by the Australian Mabo case and the (admittedly rather
ineffective) United Nations Declaration on Indigenous Peoples.
12
The `colonial masters', however, rejected indigenous peoples' use rights
if they did not change the character of the land. Hunting and gathering, even
unfenced farming, were regarded as reflecting only an ephemeral attachment
to land, not enough to claim ownership. When a colonial power took control
of a territory under the Berlin Conference rules governing the `scramble for
406
10 `Native Land Tenure', memorandum by R.C.Northcote, 1 March 1945, in CO 993/2
(NA Kew).
11 H.P. Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2004) 66.
12 S. Motha and C. Perrin, `Deposing sovereignty after Mabo' (2002) 13 Law and
Critique 231; P.H. Russell, Recognizing Aboriginal Title (2005); M.A. Stephenson
and S. Ratnapala, Mabo (1993). For a South African case, see T.M. Chan, `The
Richtersveld Challenge: South Africa Finally Adopts Aboriginal Title' in Indigenous
People's Rights in Southern Africa , eds. R. Hitchcock and D. Vinding (2004) 114; M.
Barry, `Now Another Thing Must Happen' (2004) 20 South African J. of Human
Rights 355. Most of the land cases reported in the Commonwealth Law Bull. over the
last twenty years relate to indigenous people's land rights. United Nations,
Declaration on Rights of Indigenous People (UNDRIP) (2007).
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Africa', it might be legally obliged to recognize `pre-existing rights', but
could claim, as a 1919 decision from the Privy Council affirmed, that:
some tribes are so low in the scale of social organization that their usages and
conceptions of rights and duties are not to be reconciled with institutions or the
legal ideas of civilized society.
13
The African Commission on Human and People's Rights rejected such a
white supremacist approach, and identified three common characteristics of
indigenous peoples: self-identification, special attachment to and use of their
traditional land, and, crucially:
a state of subjugation, marginalisation, dispossession, exclusion, or
discrimination because these peoples have different cultures, ways of life or
mode of production than the national hegemonic and dominant model.
14
With ever-increasing exploitation of natural resources, and the establishment
of protected areas for wildlife, indigenous peoples have found themselves
often displaced from their land without compensation or even the offer of
alternative land.
A traditional African concept of land tenure was strikingly captured by
the American social anthropologist Paul Bohannan, writing about the Tiv
tribe of Nigeria. He described it as `geometry on a rubber sheet':
[I]nstead of seeing their maps primarily in terms of `property', Africans see
something like a map in terms of social relationships in space. They emphasize
the spatial aspect of their social groups and provide themselves with a social
map . . . they were usually imprecise, because group membership was the
valued quality. Westerners, on the other hand, think about their map in terms
of property and values, and see the social system which results as funda-
mentally a series of contracts . . .
15
[W]hereas the Western map is rigid and precise, the Tiv map is constantly
changing both with reference to itself and its correlation with the earth. The
land may be fixed, but the people, their compounds and farms, shift around on
it.
16
This was far removed from the British approach to land tenure which they
brought to Africa. The concept of absolute and exclusive private property
drew upon a philosophy of possessive individualism deriving from John
Locke, a departure from feudal land law but with ownership still concen-
trated in a few hands. Land improvement came through legal processes of
enclosure and engrossment, as justified in the words, `the magic of property
407
13 Privy Council, In Re Southern Rhodesia (1919) A.C. 211, 233±4. See M.F. Lindley,
The Acquisition and Government of Backward Territory in International Law (1926).
14 African Commission on Human and Peoples' Rights, `Advisory Opinion on the UN
Declaration on the Rights of Indigenous Peoples', 41st Ordinary Session, Accra,
Ghana, May 2007.
15 P. Bohannan, Africa and Africans (1964) 178.
16 P. Bohannan, `Land', `Tenure' and Land-Tenure. (1973) 13.
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turns sand into gold'.
17
Niall Ferguson has gone so far as to claim Locke's
concept of property rights, guaranteed by representative self-government, as
one of his six so-called `killer apps' that gave the competitive advantage
separating `the West from the Rest', in his controversial interpretation of
world history.
18
Individual private property rights required defined or fixed
property boundaries enforced by the state. As an Ndebele chief in Southern
Rhodesia recognized as early as 1887: `In olden times . . . we never talked
about boundary lines . . . It is only now they [the British] talk about
boundaries.'
19
A distinctive African culture of land, and the tenacity of lineage and
community, can be attributed to the continent's particular combination of
relative geographical isolation, low population densities, and ethnic and
political fragmentation. The World Development Report offers a useful
perspective, by identifying these three `continentwide' challenges for
African development: `the triple disadvantages of low density, long distance
and deep division'.
20
Africa's large land mass creates what has been called
`the tyranny of distance',
21
with internal transport moving over great
distances, and separation from other continents by large oceans. Its human
population before colonization was probably less than a hundred million in
1800, and, even though that has grown ten-fold in the two centuries since, its
average population density is still among the lowest in the world. Another
divisive influence is the existence of over a thousand distinct languages, with
many countries containing twenty or more different ethnic groups within
their borders. Deep political and social divisions followed the European
partitioning of Africa after the Berlin Treaty, and have survived with over
fifty countries existing today, representing the most countries in relation to
land area of any region in the world.
Another, but often overlooked, influence upon African land tenure is
Islamic or Shari'a law, whose principles, concepts, and practices affect
countries such as Kenya, Nigeria, Senegal, and Tanzania. Sait identified the
similarities and differences:
408
17 A. Young, Travels in France (1792/1917) 229. This quotation was used to support
freehold tenure in Africa in Meek, op. cit., n. 7, p. 243, and by Lord Hailey, African
Survey (1956) 803. Arthur Young was an English agricultural economist of the
eighteenth-century enclosures movement, but came late in his life to reject enclosure
because it led to landlessness and poverty. See, also, J.M. Neeson, Commoners:
common right, enclosure and social change in England 1700±1820 (1993); R.C.
Allen, Enclosure and the Yeoman (1992); and K. Green, `Citizens and Squatters:
Under the Surfaces of Land Law' in Land Law: Themes and Perspectives, eds. S.
Bright and J. Dewar (1998) 229.
18 N. Ferguson Civilization: The West and the Rest (2011).
19 Quoted in D. Hughes, From Enslavement to Environmentalism: Politics on a
Southern African Frontier (2006) 7.
20 United Nations, World Development Report (2009) 121.
21 G. Blainey, The Tyranny of Distance: How Distance Shaped Australia's History
(1966). Admittedly he was writing about a different continent.
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The conversation between the spiritually sacred character of African communal
property and the religiously founded Islamic land tenure is striking . . . Land
was worshipped under traditional customs as the expression of the Gods, just as
Qur'an refers to land as God's bounty and a `sign' of divine gifts (ni'amah).
Though Islamic land tenures promoted individual (as well as communal) rights
these are not unconditional, as God alone has the right to absolute ownership of
all worldly things, and individuals merely have usufructuary rights. As such it is
widely recognised that `the Islamic philosophy of property is more similar to
the African way of thinking than the northern ideal of private property'.
22
THE COLONIAL IMPACT AND THE DUAL MANDATE
European colonial expansion into the African interior ± the `scramble for
Africa' ± claimed for itself a `civilizing mission' under international law.
23
This was expressed in the doctrine of trusteeship after the First World War,
when the League of Nations (advised by Lugard) placed a fiduciary duty
upon colonial administrations towards the indigenous peoples they governed
because of those peoples' perceived peculiar vulnerability. As stated by
Lugard, the principal ideologue of indirect rule and the dual mandate:
The British role here is to bring to the country the gains of civilisation by
applied science (whether in the development of material resources, or the
eradication of disease, etc.), with as little interference as possible with Native
customs and modes of thought.
24
This ideology required customary land rights to be protected in special areas
± the so-called native reserves or trust lands. A series of Privy Council cases
in the 1920s held that customary land tenure did not confer ownership upon
the `native' occupiers, and so denied them the opportunity to create private
property rights, although the colonial administrations conferred upon them-
selves the right to `set aside' reserve lands for their own purposes (such as
townships or mining). The 1913 Natives Land Act in South Africa not only
prohibited Africans from buying land, but also initiated a systematic reserves
policy, which rapidly spread across Eastern and Central Africa, and more
widely across the British Empire.
25
In 1930 reserve lands for `indigenous
people' in the British African colonies of South Africa, Rhodesia and Kenya
comprised 18.6 per cent of their total land area and nearly half (46.6 per
cent) of the total for the British empire (56.7 million hectares), the rest being
409
22 S. Sait, ```Not just another custom'': Islamic influence on African land laws' in Essays
in African Land Law, eds. R.K. Home and H. Lim (2011).
23 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International
Law 1870±1960 (2002).
24 F.J.D. Lugard, Revision of Instructions to Political Officers (1919) 9. He was
Governor-General of Nigeria 1912±18.
25 Hailey, op. cit., n. 17, pp. 759±71 gives an account of reserves in Africa.
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located in Canada, Australia, New Zealand, Malaya, and Fiji.
26
(There were,
however, no reserves in British West Africa, which had no white settlers.)
The initial land allocations for reserves reflected the expedients of colonial
conquest and the surviving centres of chiefly power, and formal recognition
followed through a process of official surveying and gazetting in the 1920s,
with boundaries typically defined by those of adjacent white-settler estates,
even though these were often under-occupied and unfenced. `Land settle-
ment patterns in southern and eastern Africa remained a seemingly anarchic
tapestry of white farms, forest areas, unassigned land, and reserves.'
27
The result was to create two parallel land tenure systems, reinforced by
separate administrative arrangements and a policy of separate development
most famously articulated in apartheid South Africa.
28
European settlers and
corporations took for themselves through grants and sales from the colonial
administration much of the best land and mineral resources, to which a
different legal order applied. African `native reserves' or `trust land' were
managed by colonial officials and local leaders, and disputes were handled
by administrators and `native courts', from which lawyers and judiciary were
excluded as a matter of policy. Customary land tenure might be the subject
of anthropological research, but was overlooked in legislation, and often
misinterpreted and undermined by the colonial judiciary and admini-
strators.
29
In India and the Middle East, the colonizing British had
encountered sophisticated land-revenue systems based upon feudal tenure,
with detailed records of land-holding,
30
but the `scramble for Africa' found
little by way of such systems in the interior, and so revenue had to be
extracted through cruder measures such as hut tax or poll tax.
The task of demarcating the precise boundaries of landed property was
done by land surveyors through their `systematic survey' methods.
31
An
early Surveyor-General in New Zealand was apparently quite unconcerned
(or even unaware of) pre-existing indigenous land rights) when he described
his job thus:
The main object of a colonial survey is to enable the settlement of the Crown
lands to proceed on a system of survey and record, which, for the settler, will
410
26 A.J. Christopher, The British Empire at its Zenith (1988) 162
27 A. Che ater, `The Ideology of ``Communal'' Land Tenure in Zimbabwe:
Mythogenesis Enacted?' (1990) 60 Africa 188.
28 S. Dubow, Racial Segregation and the Origins of Apartheid in South Africa 1919±36
(1989).
29 M.J. Chanock, Law, Custom and Social Order (1985) and The Making of South
African Legal Culture 1902±1936 (2001).
30 R.S. Smith, Rule by records: Land registration and village custom in early British
Panjab (1996).
31 G. Byrnes, Boundary Markers: Land surveying and the colonisation of New Zealand
(2001); R.K. Home, `Scientific survey and land settlement in British colonialism,
with particular reference to land tenure reform in the Middle East 1920±50' (2006) 21
Planning Perspectives 1.
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give him possession of a definite piece of land which cannot ever after be
overridden by a rival claim.
32
A systematic central record of land rights, defined by fixed boundaries on a
map base, offered the promise (or illusion) of the `continuous finality of the
register', which was a very different concept from Bohannan's rubber sheet
of flexible social relations. An unambiguous map-based land parcel, entered
on an official register with a certificate of title, could then be easily amended
to accommodate changes, which surveyors referred to as `mutations' (a term
apparently borrowed from Darwinian evolutionary biology). Such was the
Torrens system of survey and registration, which originated in South
Australia and was disseminated across the dominions, colonies and
protectorates of the British Empire.
33
The colonial state enforced the rights of white settler land-owners to
exclude others, and also regulated where Africans were and were not
allowed to stay, through controls such as the pass laws of South Africa and
native registration (kipande) in Kenya.
34
It claimed all apparently vacant or
unused land for itself as `public land', so that occupiers lacking express
approval could be treated as squatters in the land of their birth, and evicted.
In this `squatter problem' (as colonial officials called it) lay the roots of the
Mau-Mau uprising which ultimately brought white settler rule in Kenya to a
rather ignominious end, with human rights abuses by the colonial police only
recently acknowledged by the United Kingdom judiciary and government.
Urban Africans risked eviction if they occupied land without permission
from the state or private landowners, and so erected only temporary
structures, which reflected not only their poverty and limited access to
building materials, but also the ever-present threat of demolition and
eviction. Such official disapproval and harassment of the poor in Africa,
problematized as squatters and slum-dwellers, has survived into the
independent period, and has only begun to moderate in recent years.
CUSTOMARY OR INDIVIDUAL RIGHTS? LORD HAILEY'S PANEL
Just at the time when British colonial rule was coming under increasing
challenge, and the end of empire was nigh, a panel of experts in London met
to consider African land tenure. Contradictions in the Lugardian dual
mandate were apparent half a century after the `scramble for Africa'. Labour
disturbances during the 1930s (in Rhodesia's Copperbelt in 1935, Trinidad in
411
32 J. McKerrow, `The New Zealand System of Survey' (1889) 1 New Zealand Surveyor
8, at 9.
33 J.E. Hogg, Registration of Title to Land throughout the Empire (1920); R. Stein and
M.A. Stone, Torrens Title (1991).
34 D. Hindson, Pass Controls and the Urban African Proletariat in South Africa (1987);
A.Clayton and D. Savage, Government and Labour in Kenya 1895±1963 (1974).
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1937, and Kenya in 1938) led to a programme of colonial (later rebadged as
Commonwealth) `development and welfare', in an ultimately failed attempt
to show the positive benefits of colonial rule and buy loyalty during the
Second World War. In the final year of that war, the Colonial Office began a
major policy review through various advisory committees and panels, one of
which was the Colonial Land Tenure Advisory Panel (1945±51).
35
Buried in
the archives of its deliberations one finds a precursor of the de Soto approach
to property rights.
Its chairman was Lord Hailey, whose direction of the monumental African
Survey in the 1930s made him `the logical successor' to Lord Lugard as
`official standard-bearer for the British Africanist establishment'.
36
The
African Survey devoted one of its longest chapters to `The Land', where
Hailey wrote of the emergence of `individualistic' tendencies in customary
land tenure:
[T]he individualization of rights in the land is only the first stage in the modern
departure from the customary system of landholding. There has been a more
pronounced reluctance [by colonial officials] to face the further stage,
described comprehensively as the commercialization of land rights, where
land is sold, mortgaged, leased, or given out in rent'.
37
The paternalistic Hailey noted that `a general understanding of the
indigenous systems of landholding has been felt to be essential to those
engaged in native administration'.
38
Africa consumed most of the time of Hailey's panel. The fluctuating
membership was, however, all British (no Africans), and were mostly social
anthropologists who had researched land tenure among various African
tribes, together with some lands and survey experts advocating land registra-
tion. Social anthropology was a new academic discipline, and its champions
on the panel were firmly on the tribal side of the dual mandate divide.
The panel's first meeting discussed the politically sensitive situation in
Northern Rhodesia, Nyasaland, and Kenya, where African opposition to
colonial land confiscation was strengthening. A revealing memorandum on
West Africa stated:
The alienation of tribal lands first to Europeans for mining purposes and later
to stranger Africans for cocoa farming has been one of the major problems of
the Gold Coast. The Colonial Government attempted to deal with this problem
412
35 The panel met eleven times between 1945 and 1951, and its main output was a
bibliography on African land tenure. See minutes in files CO 993/1±6 (NA Kew).
36 Hailey entry in Oxford Dictionary of National Biography (2004). Lord Hailey (1872±
1969) had retired in 1934 after nearly forty years with the Indian Civil Service,
latterly as Governor of the Punjab and United Provinces, and then for some two
decades directed the African Survey and advised the Colonial Office. As Hailey's
DNB entry noted, `decolonization proceeded with what to him seemed imprudent,
indecent and unnecessary haste . . . an imperialist to the end'.
37 id., p. 802.
38 Hailey's introduction to Meek, op. cit. n. 7, p. xi.
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by securing control over land generally in a manner similar to that now in
operation in Northern Nigeria and Tanganyika. Native resistance to such a
measure was so intense that it had to be dropped. Local native feeling has
always been extremely sensitive on land matters and any suggestion of
Government interference has been represented as an attempt to dispossess the
people of their lands . .. In the course of its efforts to establish a land policy the
Government has had to concede the two principles (a) that the Government has
neither claim nor right, ultimate or otherwise, to any land in the Gold Coast
which it has not acquired for some public purpose and (b) that there is no land
in the Gold Coast which has not a native owner.
39
Professor Firth reported to the panel after a visit to West Africa that `[T]he
Chiefs were . . . interested in increasing the security of tenure particularly in
connection with the ability to borrow on the security of land.' The panel's
secretary noted that:
It would seem probable that in the not too distant future the Panel will receive
requests for information regarding systems of land registration which might be
suitable for application in the Colonial territories . . . a question of policy
involved as to whether registration should be carried out by the native
authorities or by the Central Government.
40
Available to the panel were two experts on land registration systems, both
retired (like Hailey) but with decades of experience of recording property
rights in Egypt. These were Sir Ernest Dowson and Victor Sheppard, whose
encyclopaedic comparative researches into cadastral systems got them
invited by Hailey to prepare a memorandum to the panel, later expanded into
a text-book.
41
They advanced similar arguments to Hernando de Soto years
later, and what later became known as the evolutionary theory of land rights.
This saw customary tenure as a vestige of the past, bound for extinction
through an inevitable historical process `towards a greater concentration of
rights in the individual and a corresponding loss of control by the community
as a whole'.
42
Dowson and Sheppard advocated a process known as `land settlement',
which drew upon British enclosure practice as well as Indian and Ottoman
precedents, but then was little known in sub-Saharan Africa. It was defined
as:
the examination of rights to land and the solution of disputes about the owner-
ship, boundaries, category and other registerable rights in land, its cadastral
413
39 CO/993/1. The last point in effect repudiated the colonialist's terra nullius claim that
unoccupied land was crown land and so available for disposal.
40 id.
41 E. Dowson and V.L.O. Sheppard, Land Registration (1956).Sir Ernest Dowson
(1876±1950) was Director-General of the Survey of Egypt 1909±23, and subsequently
advised on land matters in Palestine, Iraq, Tanganyika, Zanzibar and Kenya.
42 J.R. Simpson, Land Law and Registration (1976) 225; J.-P. Platteau, `The
evolutionary theory of land rights as applied to Sub-Saharan Africa' (1996) 27
Development and Change 29.
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survey for the purpose, and the eventual recording of the rights in Land
Registers. It must not be confused with the settlement of people on the land.
43
According to Dowson (who had long experience in the matter), land
settlement required:
practical operations of an intricate nature dependent upon the conscientious
execution of a steady programme of investigation and survey carried out day
by day in the field for a great many years in co-operation with landholders and
people.
44
Dowson and Sheppard's relentless advocacy of land registration was not
always shared by British lands officials in Africa. An official from
Tanganyika (a trust territory) sounded a warning:
The Land Officer and myself are of the opinion that it would be a disaster to
allow the African to slide into possession of what would, to all intents and
purposes, be an absolute freehold over land which the African occupies under
native law and custom.
45
Even Dowson and Sheppard themselves, reporting on the Gold Coast,
recognized that:
vacant land should be safeguarded against the encroachment of individual
quasi freeholds and that all claims should be treated as native customary rights
unless the claimant could show that he actually held more.
46
Yet this `slide' from customary to individual freehold tenure is exactly
what happened soon after in Kenya, Tanganyika's neighbour. There the
Swynnerton Report, a response to the Mau-Mau uprising, recommended that
an African landed class be created by allowing individual African ownership
in the trust lands, and this policy was brought into law by the Native Lands
Registration Ordinance of 1959 (subsequently the Registered Lands Act
1963), which has been called an `ambitious programme of social engineer-
ing, aimed at the total extinction of customary land law'.
47
After Kenyan
independence the Land Adjudication Act 1968 provided for the `ascertain-
ment and recording of rights and interests in Trust land' through the
414
43 F.M. Goadby and M.J. Doukhan, The Land Law of Palestine (1935) 269. This book
was commissioned by the British mandate administration in Palestine. `Once imbued
with the spirit of English law, Egyptian and Palestinian students passed the test of
civilisation', according to J. Strawson, `Orientalism and legal education in the Middle
East: reading Frederic Goadby's Introduction to the Study of Law' (2001) 21 Legal
Studies 663.
44 E. Dowson, An Inquiry into Land Tenure and related questions: Proposals for the
Initiation of Reform (1931) 57. This report on Iraq presents many of the same
arguments for centralized land registers as de Soto seventy years later.
45 Northcote memorandum (1945) in CO 993/2 (NA Kew).
46 Notes of 6th meeting 27 September 1946 in CO 993/2 (NA Kew).
47 S. Coldham, `The effect of registration of title upon customary land rights in Kenya'
(1978) 22 J. of African Law 110. R. Swynnerton, A plan to intensify the development
of African agriculture in Kenya (1954).
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systematic adjudication of boundaries, consolidation of holdings, and regis-
tration of individual ownership. This ultimately led to a situation of corrupt
land allocations and legal manipulations such that a Kenyan property lawyer
could claim that `[t]he land owning ethic has now become a national mania
whereby everyone dreams of owning land.'
48
Thus, a confusion over what land rights Africans have underlay the dual
mandate and racially-based policies of separate development. As late as
1986, a white judge in apartheid South Africa could confidently assert from
the bench a white supremacist view that `whites own land by law, whether
they are industrious or not, while non-whites must demonstrate their
worthiness to own land through their labor.'
49
DE SOTO AND THE POSTCOLONIAL LAND DEBATE
Some African countries have now been independent for as long as they were
colonies, while others (especially in south-central Africa) resolved their
independence struggles only more recently. All are experiencing an
unprecedented demographic surge that poses great challenges to land law
and management.
50
Iliffe opines that Africa is experiencing `the great
transition which has dominated the history of the poor in every continent',
from land-rich poverty (where labour is scarce and the poor lack access to
labour) to land-scarce poverty (where the poor lack viable land-holdings,
cannot sell their labour, and increasingly have to migrate to the towns).
51
Such is the effect of population growth and pressure upon land resources.
A confused legacy of colonial land laws persists. The new constitutions of
independent African states followed international norms in guaranteeing
private property rights, limited by the state's right to regulate land use
through planning regulations, and to acquire land compulsorily in the public
interest subject to appropriate compensation. Some developing countries
seeking radical land redistribution after independence, such as India and the
former white-settler colonies in Africa, found themselves frustrated by these
constitutional guarantees of private property rights ± as indeed the outgoing
colonial administrations had anticipated when they were framed.
52
Land
415
48 S.C. Wanjala, Essays on Land Law: The Reform Debate in Kenya (2000) 177. For
corrupt land allocation, see A. Southall, `The Ndungu Report' (2005) 103 Rev. of
African Political Economy 142.
49 Quoted in T.W. Bennett, `Historic Land Claims in South Africa' in Property Law on
the Threshold of the 21st Century, eds. G.E. van Maanen and A.J. van der Walt (1996)
544.
50 The population of Africa grew from 90 million in 1800 to 990 million in 2010: R.
Cameron, Concise Economic History of the World (1993) 193.
51 J. Iliffe, The African Poor (1987) 4.
52 T. Allen, Property in Commonwealth Jurisdictions (2000).
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ownership remained concentrated in a few hands, whether foreign or those of
new indigenous elites.
In the years since independence most African countries have reviewed
and attempted to reform their complex land laws, with the direction of
reform influenced by the priorities of foreign aid programmes.
53
Among
such reforms one can mention the following: the military government of
Nigeria nationalizing land in its 1977 Land Use Decree; Uganda reforming
its feudal mailo land tenure with its 1998 Land Act; Lesotho reforming its
land law on a British model in 1979; Botswana strengthening customary
tenure with its 1968 Tribal Land Act; and Tanzania retreating from socialism
with new land laws in 1990±93. Perhaps the most comprehensive reform was
after 1994 in the post-apartheid Republic of South Africa, which sought
radical transformation through its new constitution and numerous new land
laws. The most recent reform has been in Kenya, where the 2010 constitution
(promulgated in response to the post-election violence of 2008) has been
followed by legislation.
54
The current discourse on land and property rights is dominated by the
ideas of de Soto. Development policymakers already regarded a framework
of secure, transparent, and enforceable property rights as a critical pre-
condition for investment, economic growth, and poverty alleviation, but it
was de Soto's best-seller, The Mystery of Capital (2000), that transformed
the largely closed discourse with his `magic bullet' approach to property
rights. He argued that, unless recognized by a formal legal system, the
property held by the world's poor is merely so much `dead capital', locking
them in the `grubby basement of the pre-capitalist world'.
55
He sees formal
property rights as being enjoyed by colonial and postcolonial elites, the main
beneficiaries of globalization and the rule of law, while outside their
exclusive metaphorical `bell-jar' most of the population are trapped in
poverty, physically marginalized in peri-urban squatter areas with little legal
protection. His remedy would be to integrate all property rights into one
unified formal record system under state control, thus conferring rights and
responsibilities upon property-owners both rich and poor. He went on to
promote a high-level international `Commission for the Legal Empowerment
of the Poor' (with himself as a member), and its report made `secure and
accessible property rights' one of four so-called `pillars' for the legal
empowerment of the poor.
56
416
53 A. Manji, `Land reform in the shadow of the state' (2001) 22 Third World Q. 327.
54 Kenya Constitution (2010) articles 60±61. The constitution classified all land as either
private, public, or `community', community land was defined on the basis of
`ethnicity, culture or similar community of interest', and included community forests,
grazing, shrines, land for hunter-gatherers, ancestral lands, and also private land held
for a community.
55 H. de Soto, The Mystery of Capital (2000) 55.
56 Commission for Legal Empowerment of the Poor, Making the Law Work for
Everyone (2008).
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De Soto's optimistic language conceals the reality that a system for
securing property rights ± converting oral into written, informal into formal,
local into national ± is not uniformly benign, neutral, or free of power
relationships and exploitation. Those living with informal systems may resist
integration into such a system, preferring to preserve communal and
customary values as a defence against the penetrative forces of global
capitalism and the modernizing nation state.
57
De Soto has been criticized
for reinforcing a narrative of inferiority in the `global South', promoting neo-
liberal reforms that increase rather than reduce poverty, and assuming that
the rule of law and the market will protect private property rights and expand
personal wealth.
58
Legal pluralism, however, remains the reality for most of
the world's national legal systems, and such diversity in Africa offers a
particular challenge for de Soto's centralist approach.
59
De Soto is promoting formal property systems at a time when the
dominance of individualized land tenure in the policy prescriptions of donor
agencies is increasingly seen as having negative consequences for the poor.
Customary or communal land practices are now being revived in a post-
colonial world of legal pluralism, and withholding land from titling
processes may be seen as a means of preserving cultural identity and family
and community cohesion. Tribal or customary land tenure can have an
important welfare function, and serve as a common property resource and a
reservoir of cheap, unserviced land in peri-urban areas. As a result it is not
surprising that indigenous groups should increasingly pursue legal chal-
lenges and human rights arguments to reassert their land claims, emboldened
by the Australian Mabo case.
60
Many nation states in Africa have embarked
upon expensive land titling programmes, which have been perceived as part
of a wider neo-liberal project to facilitate the spread of global capitalism and
open markets. Yet, practices of `counter-mapping' are seeking to reclaim
communal value systems hitherto disavowed by state institutions, examples
of which include cooperative land in South Africa and the social tenure
domain model.
61
State and society are thus involved in a continuing struggle over their
respective roles and entitlements. The new Kenyan constitution, for
example, commits Parliament to many ambitious tasks, such as to `revise,
417
57 The tension is explored in P. Karsten, Between Law and Custom: `High' and `Low'
Legal Cultures in the Lands of the British Diaspora ± US, Canada, Australia, New
Zealand 1600±1900 (2002).
58 E. Fernandes, `The Influence of de Soto's The Mystery of Capital' (2002) 14 Land
Lines 5; A. Gilbert,'On the Mystery of Capital and the Myth of Hernando de Soto'
(2002) 24 International Development Planning Rev. 1.
59 R.K. Home and H. Lim (eds.), Demystifying the Mystery of Capital: Land Titling and
Peri-Urban Development in Africa and the Caribbean (2004).
60 R. Hitchcock and D. Vinding (eds.), Indigenous People's Rights in Southern Africa
(2004).
61 C. Lemmen, The Social Tenure Domain Model (2000).
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consolidate and rationalise existing land laws', `prescribe minimum and
maximum land holding acreages in respect of private land', protect matri-
monial property upon the termination of marriage, regulate access to public
land, and protect the property of dependants. The new National Land
Commission's remit includes many tasks: land policy, management of public
land, `investigations, on its own initiative or on a complaint, into present or
historical land injustices', traditional dispute resolution, assessment of
property tax, and oversight of the land-use planning system.
62
The sub-
sequent legislative reform process seems not to have not fulfilled the high
hopes, and the Western-influenced formal legal system in African countries
still reaches only a few, remaining largely irrelevant to customary land
tenure.
The challenges of land law reform require a change in legal thinking. The
concept of transformative constitutionalism appeared in post-1994 South
Africa, trying to offer some hope of social transformation through processes
grounded in law.
63
In Zimbabwe land redistribution has been justified by
formulating an African jurisprudence through a humwe doctrine of consent,
which (it is argued) endorses a `rejection of private property rights that were
forcibly or immorally instituted under the shield of colonialism', while also
arguing post-Mabo that pre-existing indigenous land rights had not been
extinguished.
64
Customary or communal land tenure, until recently regarded in global
discourses on land tenure as a vestige of the past bound for extinction, is now
being rediscovered and promoted. In recent years there has been increased
policy interest in the United Kingdom in community ownership or
management of land and buildings; the Scottish Land Reform Act 2003,
for instance, abolished feudal land tenure and empowered communities to
acquire land with the benefit of tax concessions. Two initiatives from UN-
Habitat directly concern land law in Africa: the Global Campaign for Secure
Tenure and the Global Land Tools Network (GLTN); the GLTN, launched at
the 2006 World Urban Forum, seeks to formulate legal instruments for land
tenure that are innovative, pro-poor, affordable, and scalable.
CONCLUSIONS
To return to the question posed by de Soto, whether Africans are culturally
unsuited to property rights, one should recognize that `culture' is not fixed,
418
62 Kenya Constitution, op. cit., n. 54.
63 K. Klare, `Legal Culture and Transformative Constitutionalism' (1998) 14 South
African J. of Human Rights 146.
64 B. Chigara, Land Reform Policy: The Challenge of Human Rights Law (2004) 31.
Humwe is an African version of the principle quod omnes tagit (that which touches all
must be agreed by all).
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even though social anthropologists working in colonial Africa might have
interpreted tribal societies as such a way. Before colonialism, the availability
of land and low population densities contributed to an African land tenure
that was flexible and lineage-based (Bohannan's flexible rubber sheet), and
did not place much significance upon private property rights. But Africans
learned fast, as Hailey's land tenure panel found when encountering
increased individualization of land rights. The shift from communal to
individual tenure may indeed be an evolutionary process, but the shift need
not be inevitable or irreversible: large private estates get broken up to create
family or communal ownerships. Recent theories of colonialism and post-
colonialism have allowed the possibility of a wider spectrum of land rights,
in which communal, individual and state tenures coexist under conditions of
legal pluralism.
African countries often debate `the land question' or `the land issue',
which may refer either to more equitable land distribution (the more radical
approach), a spectrum of land tenure types, or reforming the processes of
land administration. The pressing need to deliver land to the poor may be
met from land held in either private, state or communal ownership, and the
delivery process comes typically through confirmation of effective
occupation or possessory title, together with protection from arbitrary forced
eviction and systems for adjudication and dispute resolution.
Meanwhile, new challenges are being posed by social change, particularly
rapid population growth, the changing role of women, and the impact of
HIV/AIDS upon families and property. The Kenyan constitution is a recent
case where these challenges have at least been recognized. It professes a
number of worthy governing principles for land law: equitable access and
secure land rights; sustainable and productive land management; transparent
and cost-effective land administration; elimination of gender discrimination;
and community-based land dispute resolution.
65
Unfortunately the law
reform process and the implementation capacity of land governance are often
inadequate to the challenge, increasing rather than reducing conflicts over
land, and appearing remote and irrelevant to the everyday lives of the poor.
If land tenure can be reduced to three basic types (private, public, and
community land), then what is distinctive about sub-Saharan Africa is its
relatively high proportion of community land (usually the former native
reserves), controlled neither by the state nor by private individuals, and
largely falling outside the control of the land-use planning system. This, in
part, results from colonial policy that sought to limit or even deny Africans
private ownership rights to land. Community-based or grass-roots organiza-
tions are growing stronger in resisting land confiscation from above. The
situation remains dynamic and complex, with unresolved tensions between
customary, state, and individual tenures, so that the struggle for more
responsive law and regulatory frameworks will continue.
419
65 Kenya Constitution, op. cit., n. 54, p. 43.
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