Globally, between 1 and 2 billion people define their right to the land through what the community says, which means that the commons estate is huge. In sub-Saharan Africa, 1.6 billion hectare, 75% of the land area, is held by communities under customary law, around 1.4 billion ha is land that is not cultivated but is collectively held forest, range land etc. In most of Africa, private title is only on average between 2 and 10% of the land (e.g. Cameroon 2%). The colonial legacy led to the rest of the land being considered ‘without owner’. This land was therefore expropriated by the colonial power – a situation that was not changed but maintained by many African states after independence.
The most fundamental way in which this situation needs to be changed is for customary land rights to be recognised as property rights in statutory law, not just as user or possession rights; and that it applies not only to family lands but to lands held collectively, including the forests and range lands that are currently considered to be state not community lands.
The vast majority of forest, pastoral, farming and other land in Africa has been managed by communities in accordance with their customary law, which is an efficient approach to management of natural resources that continues to develop and respond to modern realities, including issues of population growth and movement, shifting resource use, and food sovereignty. Customary land tenure provides a secure foundation for development providing that it is protected under statutory law.
The alternative is to continue with an out-dated colonial-derived system that makes communities squatters on their own lands. In this context, the biggest driver of social conflict, and in extreme cases civil war, is the denial of rights to land and resources. We have seen conflict of this kind in recent times in both Central and West Africa. The fact that 50% of civil wars go back to war within 5-10 years where such issues are left unresolved makes securing land rights an urgent necessity.
A critical role for the modern state is to make progress in establishing ways of recognising and incorporating customary land tenure into national law, recognising that – in contrast to a system that’s been imposed from the outside – it is fair, efficient and legitimate. However, many countries are far behind and have an urgent need for reform. The recognition of customary land tenure provides a route to food sovereignty and secure basis for development, particularly in the context of large-scale land acquisition by domestic and international actors, resource depletion, population growth and climate change.
Mobilised by the need to address the urgency of these threats, communities and civil society are increasingly recognising that a legitimate solution lies in protecting and strengthening customary land tenure and community governance.
The community and civil society representatives at this African Community Rights Network Douala Conference on Community Rights make the following recommendations.
Recommendations to communities and civil society NGOs
1. Work to define and demarcate community land areas, and raise awareness of the disparity between national law and customary reality, and thereby mobilise communities to seek change.
2. Call for national statutory legal protection for customary lands, and work for active participation by communities in national legal reform processes to achieve this.
3. Work to enable community governance that is transparent, participatory, accountable and inclusive, including in determining individual and family areas and land use within the inalienable community commons.
4. Work to enable the full participation of diverse groups, whether pastoralists, hunter-gathers, and agriculturalists, including men and women and all age groups
5. Recognise that NGOs have an important place in helping to make political space for necessary change, but that space must be made for the wider public to occupy, especially communities themselves.
On the basis of the clear statement of the African Charter on Human and Peoples’ Rights, that natural resources should be managed for the exclusive benefit of the people; and,
recognising the enormous benefits of recognising customary land tenure systems, and the huge problems created by giving primacy to foreign-derived law;
we seek to build strong partnerships across the region between communities, civil society, governments, and international organisations, to ensure that this enduring solution can successfully address current problems and approaching crises, and guarantee a long-term development path that is fair, just and self-determined.