Local Case Studies in African Land Law , livre ebook
216
pages
English
Ebooks
2011
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216
pages
English
Ebooks
2011
YouScribe est heureux de vous offrir cette publication
Publié par
Date de parution
01 janvier 2011
Nombre de lectures
3
EAN13
9781920538019
Langue
English
Poids de l'ouvrage
2 Mo
The importance of land law for the rule of law in Africa can hardly be questioned. Population pressures and competition over access to land and resources generate much conflict, complicated by the historical legacy of colonial laws and land-grabbing, and by post-independence land law reforms. The international development agencies increasingly fund projects related to land law, policy and administration, with the Food and Agriculture Organisation (FAO) and Habitat each maintaining specialist land tenure units, and the AU and SADC formulating land policy frameworks.This book on themes in African land law is one of a pair, the other presenting local case studies. It is not so easy to achieve an overview, nor to find specialist writers in the field. Land law has traditionally been regarded as a difficult subject to teach, and specialists are fewer in the law departments of African universities than one might expect. A quick scan of the index to fifty years of the Journal of African Law reveals less than one article a year with ‘land’ in the title, the most popular topics being the Nigerian Land Use Decree and tribal tenure in Botswana. Africa is less well served than other continents by specialist property law networks, and less represented at international academic conferences in the field. While Stellenbosch University in South Africa has a programme training academic land law specialists, that is an isolated initiative. The search for contributors to these books produced more non-Africans and those of the African diaspora than Africans working in their home country. Nor is African land law the exclusive preserve of lawyers, so other professions have represented, such as land surveyors, land economists and planners, as well as those working in NGOs. The list of authors thus includes a Cameroonian based in the USA, two Ghanaians and a Zimbabwean in UK academia, and within Africa a Tanzanian in Botswana and a Zambian in Namibia. With much research coming from outside the continent, non-African authors include three British, one French (geographer), one French-Canadian, one Texan (geographer), and one Dutch (land surveyor).The two books attempt a balanced regional and thematic coverage. The table below presents basic statistics on the countries discussed, giving some pointers to their diversity, in population size, land area and population density, but a dozen countries from a continent that has over fifty inevitably means omissions.About the editor:Robert Home is Professor in Land Management at Anglia Ruskin University (UK), and the books are part of a series on the rule of Africa, supported by the World Bank.
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Publié par
Date de parution
01 janvier 2011
Nombre de lectures
3
EAN13
9781920538019
Langue
English
Poids de l'ouvrage
2 Mo
LOCAL CASE STUDIES IN AFRICAN LAND LAW
Robert Home (editor)
2011
Local case studies in African land law
Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.
For more information on PULP, see www.pulp.up.ac.za
Printed and bound by: ABC Press Cape Town
To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 pulp@up.ac.za www.pulp.up.ac.za
Cover: Yolanda Booyzen, Centre for Human Rights Cover photograph: Land Art, SurfGuard on Flickr
ISBN: 978-1-920538-01-9
© 2011
THE W ORLD BANK Washington, D.C. Local case studies in African land lawforms part of the Rule of Law in Africa Project funded by the World Bank
TABLE OF CONTENTS
PREFACE CONTRIBUTORS ACRONYMS AND ABBREVIATIONS INTRODUCTION ACKNOWLEDGMENTS
1
2 3
4 5
6
7 8
9 10
v vi viii x xiv
Post-conflict land in Africa: The liberal peace 1 agenda and the transformative alternative Patrick McAuslan Land issues in the Rwanda’s post conflict law reform 21 Geoffrey Payne Land law, governance and rapid urban growth: 39 A case study of Kisumu, Kenya Leah Onyango and Robert Home The impact of the Land Use Act upon land rights 59 in Nigeria Oludayo Gabriel Amokaye 79 The evolution of land law and policy in post-independence Namibia John Kangwa 97 Land registration from a legal pluralistic perspective: A case study of Oshakati - Namibia Paul van Asperen Limits of incremental land tenure reform in 117 Botswana Faustin Tirwirukwa Kalabamu 137 Understanding the coexistance of the Tribal Land Act and Town and Country Planning Act in Botswana’s urban villages Chadzimula Molebatsi 157 Land registration and poverty reduction in Ghana Raymond T Abdulai Gated communities in Ghana: A new institutional 171 economics approach to regulation Kofi Oteng Kufuor
CONCLUSION BIBLIOGRAPHY
iii
187 189
Table 1: Table 2: Table 3: Table 4:
Table 5:
Figure 1: Figure 2: Figure 3:
Picture 1: Picture 2:
LIST OF TABLES
Population and tenure in Oshakati Continuum of land rights in peri-urban Oshakati Land tenure categories in Botswana Overlapping functions provided by the TLA 1970 and the T&CPA 1977 Land development activities and institutions involved in urban villages
LIST OF FIGURES
Conceptual model Principles of FLTS Topographic map Oshakati (1996)
LIST OF PICTURES
Land classification in Kenya Land ownership in the Nyando river basin?
iv
109 113 125 144
146
98 101 103
152 152
PREFACE
Anglia Ruskin University has a growing number of students – both undergraduate and postgraduate – from the African continent, and UK students of African descent, and is proud to promote research that may aid African development. Professor Home has long experience of research on land issues in Africa. Since joining the University in 2002 he has managed a research project for DFID on land titling, which resulted in the book Demystifying the Mystery of Capital (2004), and undertaken research and professional consultancies in several African countries. He was invited by the University of Pretoria to edit these two books on African land law, as part of a publishing project on the rule of law sponsored by the World Bank, and the University is pleased to be associated with the undertaking.
Professor Alan Sibbald Deputy Vice-Chancellor
v
CONTRIBUTORS
Raymond Talinbe ABDULAI is Head of Research in Real Estate and Planning at Liverpool John Moores University, United Kingdom. His previous academic positions were at Wolverhampton University and at Kwame Nkrumah University of Science and Technology(KNUST) and Kumasi Polytechnic in Ghana. He holds a PhD in Real Estate, MPhil in Land Economy (Cantab), and BSc (First Class) in Land Economy. He has published extensively in academic books, journals and monographs, and is currently: the editor-in-Chief,Journal of International Real Estate and ConstructionStudies (JIRECS).
Oludayo G AMOKAYE(LLB (Hons), LLM (Lagos), is a Doctoral Candidate at Obafemi Awolowo University and Senior Lecturer in Property and Environmental Law at the University of Lagos, Nigeria.
Robert HOME(MA, Cantab; PhD, London; DipTP, Oxford Brookes) is Professor in Land Management at Anglia Ruskin University, UK. His research interests are planning history and land management, with a strong international and African focus. His PhD was on the influence of colonial government upon Nigerian urbanisation. He has published books on British colonial town planning, land titling in Africa and the Caribbean, and planning regulations. He has also managed higher education link programmes with South Africa and Zambia, undertaken consultancies in several African countries, and supervised PhDs on African land topics.
Faustin Tirwirukwa KALABAMU is Associate Professor at the University of Botswana. He holds a PhD from the University of KwaZulu-Natal, South Africa, and has taught, researched and worked in Tanzania, Bangladesh, Zimbabwe and Botswana. His research and publication activities focus upon housing, land management and gender as a cross-cutting issue.
John KANGWAis a Lecturer at Polytechnic Namibia in Windhoek. He was formerly Lecturer in Surveying at the Copperbelt University, Kitwe, Zambia, and holds in BSc Surveying and Mapping Sciences, University of East London, 1992 and MSc (Geography), University of Zambia, 2000 Research and consultancy on social and environmental impact of of mining activities in southern Africa, and contributed a chapter on Zambia to Demystifying the Mystery of Capital (2004).
Kofi Oteng KUFUORisProfessor of Law at the University of East London, where he is Director of the Law and Development Group. He holds a PhD from the University of Warwick and a LLM from London School of Economics, and is general editor of the African Journal of International and Comparative Law. His research interests include economic integration in West Africa, the new institutional economics, human rights in the developing world and Ghanaian environmental law.
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Patrick McAUSLAN is Professor of Law at Birkbeck College, London, and after his undergraduate studies at Oxford University has held academic positions at the University of Dar es Salaam, London School of Economics, University of Warwick and University College London. He has worked as a consultant for UN Habitat in many countries, and was awarded an MBE in 2001 for services to African land use and environment.His books includeBringing the Law Back In: Essays on Land, Law and Development(2003).
Chadzimula MOLEBATSI is Lecturer at the Department of Environmental Science, University of Botswana. His academic qualifications include a BA from the University of Botswana & Swaziland, MA in Environmental Planning for Developing Countries from University of Nottingham, and PhD in Town and Country Planning from Newcastle University. His academic publications include a chapter on Botswana inDemystifying the Mystery of Capital(2004).
Leah ONYANGOholds a PhD in Physical and Urban Planning (Maseno University). She is Senior Lecturer at Maseno University and previously occupied several positions in the Ministry of Lands. She is currently involved in collaborative interdisciplinary research and development and extensively involved in community work specifically in the areas of environmental conservation and youth programmes.
Geoffrey PAYNEholds a Diploma in Architecture (Nottingham) and MSc (London) in Built Environment Studies. He established Geoffrey Payne and Associates in 1995, which undertakes consultancy, training and research assignments throughout the world for a wide range of clients including national governments. The main focus of GPA activities is to improve options for the urban poor in developing countries to obtain access to land, housing, services and credit on terms appropriate and affordable to the poor. He has published widely in the field, including
Paul VAN ASPEREN is a part-time PhD researcher at the Research Institute of the Built Environment, Delft University of Technology (Netherlands). He is also employed as a senior consultant at the Ministry of Transport, Public Works and Water Management. Educated as a geodetic engineer at Delft University, he has held teaching positions at the University of Zambia and ITC (Enschede, Netherlands) and worked as a consultant. He is currently researching a PhD on pro-poor land registration tools in African peri-urban areas.
vii
ACRONYMS AND ABBREVIATIONS
AALS ACHPR AIDS AU AUBP BLCC CBD CBO CDC CEFRD
CEMIRIDE CLEP CRC DFID DRC EAC EDPRS EEBC FLTS FPIC GIS GLTN
HIV IACHR ICC ICCPR ICISS ICJ ICSID ILO LAC LPA LRO LRP LTO MCC MDG MINITERE
NGO NHAG NIE OAU OHSIP OLL OTC OVCs SADC SDFN SERAC SFT SG SWA SWAPO T&CPA TCCF TLA UK ULML
Affirmative Action Loan Scheme African Commission on Human and Peoples’ Rights Acquired Immune Deficiency Syndrome African Union African Union Border Programme Bakweri Land Claims Committee Convention on Biological Diversity Community-Based Organizations Cameroon Development Cooperation Convention on the Elimination of all Forms of Racial Discrimination Centre for Minority Rights Development Commission for the Legal Empowerment of the Poor Convention on the Rights of the Child Department for International Development Democratic Republic of Congo East African Community Economic Development and Poverty Reduction Strategy Eritrea-Ethiopia Boundary Commission Flexible Land Tenure System free prior informed consent Geographic Information System Global Campaign on Secure Tenure and the Global Land Tools Network Human Immunodeficiency Virus Inter-American Commission on Human Rights International Criminal Court International Covenant on Civil and Political Rights International Commission on Intervention and State Sovereignty International Court of Justice Settlement of Investment Disputes International Labour Organisation Legal Assistance Centre Liberal Peace Agenda Land Right Office Land Reform Programme Land Titles Ordinance Mogadishu City Charter Millennium Development Goals Ministry ofLand, Environment, Forestry, Water and Natural Resources Non-Governmental Organisations Namibia Housing Action Group New Institutional Economics Organisation of African Unity Oshakati Human Settlement Improvement Project Organic Land Law Oshakati Town Council Orphans and Vulnerable Children Southern African Development Community Shack Dweller Federation of Namibia Center and the Center for Economic and Social Rights Settlement Fund Trustee Surveyor General South West Africa South West Africa People's Organisation Town and Country Planning Act Technical Committee on Commercial Farmland Tribal Land Act United Kingdom Urban Land Management Law
viii
UN UNDP UNDHR UNDRIP
United Nations United Nations Development Programme Universal Declaration of Human Rights United Nations Declaration on the Rights of Indigenous Peoples
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EDITOR’S INTRODUCTION
The importance of land law for the rule of law in Africa can hardly be questioned. Population pressures and competition over access to land and resources generate much conflict, complicated by the historical legacy of colonial laws and land-grabbing, and by post-independence land law reforms. The international development agencies increasingly fund projects related to land law, policy and administration with the Food and Agricultural Organisation (FAO) and Habitat each maintaining specialist land tenure units, and the AU and SADC formulating land policy frameworks.
This book on local case studies in African land law is one of a pair, the other presenting more general themes. It is not so easy to achieve an overview, nor to find specialist writers in the field. Land law has traditionally been regarded as a difficult subject to teach, and specialists are fewer in the law departments of African universities than one might expect. A quick scan of the index to fifty years of theJournal of African Law reveals less than one article a year with ‘land’ in the title, the most popular topics being the Nigerian Land Use Decree and tribal tenure in Botswana. Africa is less well served than other continents by specialist property law networks, and less represented at international academic conferences in the field. While Stellenbosch University in South Africa has a programme training academic land law specialists, that is an isolated initiative. The search for contributors to these books produced more non-Africans and those of the African diaspora than Africans working in their home country. Nor is African land law the exclusive preserve of lawyers, so other professions have represented, such as land surveyors, land economists and planners, as well as those working in NGOs. The list of authors thus includes a Cameroonian based in the USA, two Ghanaians and a Zimbabwean in UK academia, and within Africa a Tanzanian in Botswana and a Zambian in Namibia. With much research coming from outside the continent, non-African authors include three British, one French (geographer), one French-Canadian, one Texan (geographer), and one Dutch (land surveyor).
The two books attempt a balanced regional and thematic coverage. The table below presents basic statistics on the countries discussed, giving some pointers to their diversity, in population size, land area and population density, but a dozen countries from a continent that has over fifty inevitably means omissions.
x
Table: Basic statistics by country Source: 2008-2010 official statistics
Country
Botswana Cameroon Ghana Kenya Liberia Namibia Nigeria Rwanda Senegal Somalia Tanzania Zimbabwe
Area (000 sq.km.)
581.7 475.4 238.5 580.4 111.4 825.4 923.8 26.3 196.7 637.7 945.2 390.8
Population (million)
1.9 18.9 23.8 39.0 3.9 2.1 154.7 10.7 13.7 9.4 43.8 12.5
Density per sq.km
3.4 39.7 99.9 67.2 35.5 2.5 167.5 401.4 69.7 6.7 46.3 26
GDP per capita per annum US$000 14.1 2.1 1.6 1.7 0.4 6.6 2.3 1.1 1.8 0.6 1.4 0.4
Chapter one (by Patrick McAuslan) draws upon his recent experience in post-conflict Liberia, Somalia and Somaliland to develop a critique of the modern peace-making and state-building ‘industry’. Since the early 1990s this has developed as a branch of international administration, returning to the trusteeship/mandate system and civilising mission of the League of Nations and UN, and with the interventionist aim of creating Weberian-style states that will facilitate free-market economies. In post-conflict situations customary rights may have to be rewritten, frustrating the neoliberal emphasis on restitution of property to pre-conflict elites. He is sceptical about the attempt in Somalia to create a western-style Mogadishu city council which ignores the realities of local community politics, and contrasts it with the attempt by Somaliland to indigenise a transformational approach to state-building. He advocates the ‘right to the city’ (applied in Brazil and Turkey), identifying four dimensions: recognising the social function of property, more participatory budgeting, processes for democratic management, and regularisation of informal settlements.
Chapter two (by Geoffrey Payne) examines the land tenure reform programme in Rwanda, whose population density is probably the highest in Africa, and whose Government has the ambitious aim to register eight million land parcels in three years. The chapter examines how this programme is being implemented, and its effects upon the urban areas where population pressure, land scarcity and economic development are concentrated. The chapter concludes with comments on the implications for policy and practice for other countries in the region facing similar challenges.
Chapter three (by Robert Home and Leah Onyango), after outlining the colonial legacy of laws of urban governance in Kenya, presents a local case study of Kisumu, the country’s third largest city, which well exemplifies
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