Transitional Issues in Moving from Customary to Formal Systems

Whether through formal titling or other means, the transition out of customary systems to more formal land tenure systems is occurring all over the world. The process of transition itself, from one type of land tenure regime to another, can create uncertainty over rights to land, unless the transition is guided very carefully. Such uncertainty undermines the security of land tenure.

A concern that arises during transitions of this nature is how to ensure that new institutions and procedures for land management are not manipulated by the better-off segments in society, in order to deprive lower-income families of land rights. For example, 'experience in the former Soviet Union shows that even after legal reform is completed, bureaucrats are difficult to dislodge from their posts and misinform landowners in efforts to retain control, creating confusion and insecure land rights'.63 In the words of another observer:

In Eastern Europe ... a major reason for inefficiency in the allocation of resources in that politicians and bureaucrats have excessive control rights over much of the economy. . .. [in Russia] land reform has been . . . stymied by government agencies with effective control over all land transactions.64

60. G. K. Nkunya, 'Land Tenure and Agricultural Development in the Angola Area of the Volta Region', Land Tenure Center Paper No. 120, University of Wisconsin, Madison, WI, USA, 1974.

62. G. Feder and D. Feeny, 'Land tenure and property rights: theory and implications for development policy', The World Bank Economic Review, 5(1), January 1991, pp. 137-138.

63. Stevan Dobrilovic, 'Land Policy and Administration', peer review provided at the electronic forum on Land Policy Issues and Sustainable Development, coordinated by the World Bank, Washington, DC, USA, March 5 to April 1, 2001, p. 5.

64. Andrei Schleifer, 1994, pp. 93 and 114.

The problem also emerges in the context of transformations of customary land tenure regimes into modern systems with formal title, as in the case of Zambia:

There is a well-founded fear that proposed land reforms will make it easier for outsiders to get title deeds to land on reserves and trust land at the expense of the local people. When titling is introduced, wealthier and better-informed individuals may use their information advantages to claim land over which other, less informed individuals have customary rights.65

Platteau has commented:

.. . the superimposition of a new system of land rights backed by the State authority tends to create serious uncertainties about the application of indigenous rules while, conversely, the persistence of customary land arrangements has the effect of creating uncertainty about the actual validity of formal land legislation. A variety of efficiency costs, static and dynamic, result from this ambivalent situation of land rights dualism.66

S. Berry has called attention to the problem of 'politicized accumulation' of land in Africa.67 Platteau notes that often urban sector groups, especially public officials, are much more knowledgeable about land titling procedures than the average farmer, and thus can use the corresponding procedures to their advantage:

Real estate appears to be the privileged sector of accumulation for the political class and its allies. ... In Cote d'lvoire, for example, the Code foncier [Real estate code] of 1971 has trig-

... the process of land titling or registration can, as in Kenya, permit some individuals to appropriate for themselves exclusive ownership rights in commonlands previously open to any member of the community, or commonly owned family lands. . . . land titling or registration, when improperly administered or when customary rights have not served as the basis for registration, has allowed powerful people to take land from poor rural farmers in some African situations (D. A. Atwood, 1990, p. 661).

gered off a process of land appropriation by the politico-administrative élite. . . . [titling] requests, which were first confined to the periphery of big cities, were gradually extended to rural lands and, as a consequence, customary lands were increasingly transferred from village communities to the urban élite. ... In Senegal. .. under the [National Land Law] residents were allowed to establish title and request registration within six months from the date of passage of the law. This measure clearly worked to the advantage of the wealthier and the better informed people who used the transitory period allowed by the law to enlarge their land estates by resorting to every known trick: traditional pledging and borrowing of lands which, once brought under cultivation, would be considered as their property, when the [land law] comes into force; erection of makeshift structures on uncultivated lands; constitution of so-called agricultural associations or groupings purported to exploit the coveted land. .. . By contrast, most rural people were generally unaware of the new law provisions and they were not notified to present claims.68

67. S. Berry, 'The food crisis and agrarian change in Africa: a review essay', African Studies Review, 27(2), 1984 (cited in J.-P. Platteau, 1992, p. 177).

68. J.-P. Platteau, 1992, pp. 177 and 180. It should be noted that this kind of problem can occur even in the absence of titling projects as, for example, when influential interests start to fence off parts of communal lands for their own use.

Binswanger, Deininger and Feder summarized this problem in general terms by pointing out that titling can lead to greater concentration of landholdings and to the dispossession of those who held land rights under a previous customary system. With the introduction of titling, wealthier and better connected individuals take advantage of their better access to information to lay claim to land over which other, less informed, individuals have customary rights.69

An important policy conclusion is that the uncertainty associated with the change from one land tenure regime to another is lessened when the transition simply takes the form of legal recognition of customary rights.

Another problem that sometimes emerges in the transition process is that when a decision is made to title customary lands in favor of the State, the farmers' rights to those lands can be weakened. For example, they (or the community) may lose the right to decide who inherits each plot, and the option of selling or renting out land may become prohibited. Alden Wily has summarized this problem in the context of Eastern and Southern Africa:

Strategies for transforming customary land rights . . . have included . . . the subordination of customary rights [to] government land, as in the homelands of South Africa, the communal lands of Zimbabwe, Namibia and Malawi, the trust lands of Kenya, and until recently the 'public lands' of Uganda. These are customarily held lands vested in presidents and States, turning their inhabitants into landless 'occupants' on their ancestral lands.70

Even though the hazards associated with implementing a titling system are very real, not moving toward a titling system can create risks of its own. One such risk has been indicated by Alden Wily in the paragraph above. Another risk of not titling the land (whether to groups or individuals) is that farmers' decisions to improve the land may be inhibited because of uncertainty about the value of improvements to the land, and local power struggles over land may be encouraged. The problems associated with lack of formal title tend to worsen as land values rise. Disputes over land and land grabbing by more influential persons have been observed to grow more frequent as land values rise.71

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