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, rangeland 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 maintained by many African states after independence.
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 a dynamic approach to the 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 sustainable development providing that it is protected under statutory law.
The alternative is to continue with an outdated colonial-derived system that makes communities squatters on their own lands.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 resume within 5-10 years when such issues are left unresolved makes securing land rights an urgent necessity.
A critical role for the modern state is to establish ways of recognising and incorporating customary land tenure into national law, recognising that it is fair, adaptable, dynamic 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 and Communities’ Douala Conference on Community Rights make the following recommendations.
Recommendations to government to create the enabling conditions to:
1. Ensure that customary land rights are recognised as property rights in statutory law, not just as user or occupation rights, and have an equivalent force of law to private deeded property rights. Customary land must include not only the land of the family, house and farm but also forest, rangeland and other lands held collectively, including those that are currently considered as state-owned.
2. Ensure legal recognition of community governance, and ensure support for inclusive, transparent and democratic community governance.
3. Ensure that legal reform, in particular the reform to recognise customary land rights as property rights in statutory law, is based on public participation, especially that of indigenous peoples and other local communities, and that this same approach is taken to other national and international processes.
4. Ensure that procedures and processes by which laws are implemented are effective, timely, accountable and transparent, including through procedures guaranteeing access to information, participation and access to justice.
On the basis of the provisions 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 sustainable, fair, just and self-determined.