An introduction to African customary law Legal Resources Centre Litigation workshop on customary law and land tenure June 2011 Johannesburg
Outline What is customary law? (conceptual issues) Customary law and land tenure Historical perspectives: the impact of colonisation Current situation in Africa The clash of the two systems on the continent today Customary law and human rights (progressive realisation) Customary law and traditional leadership (who makes law?) Customary law and indigenous peoples Issues arising
What is customary law? Not a homogenous system Some similar and defining features (perhaps in opposition to western legal system?): Community based (vs individual) Unwritten Evolving Legal rules not separate from the rest of the lifeworld Not rule-based, but outcomes-based Resilient
community The law of small-scale communities (Bennett compare RBN) harmony implications for criminal law ubuntu Nature and source of rights Definition of the community: who is the community? Clash with liberal conception of human rights
unwritten Invisible Evolving Negotiable Local How do you prove it? Most written sources created during time of colonial rule
Customary law continued Accountability mechanisms Boundaries fluid Allegiance to the chief Secession Different levels of decision making and jurisdiction
Customary land tenure Bennett: Those who begin an investigation of customary tenure with the assumption that ownership is a universal phenomenon tend to represent the date as if one person, or body of people, holds a plenary right out of which fractions of rights are given to others. It then follows that lesser rights of use and enjoyment are conditional on grants by the owner. On this understanding, it is often said that ownership of land vests in the tribe, and that traditional rulers grant individuals lesser interest from this plenary right. From such a description, it seems as if the tribe has an absolute title, the traditional leader is trustee and individuals have usufructuary or some similar limited right. (Royal Bafokeng)
Land tenure continued Layers of accountability reflect the layered nature of units of social organisation of customary communities, or what some scholars have called the nested layers. This term refers to the fact that different organisational structures, for example the family, clan, village and the tribe, form units that nest within one another. At every one of these levels, land rights are vested. It is therefore impossible to understand customary ownership of land without understanding the social organisation of these communities.
Land continued Customary land rights may be traced with enquiries as to the membership status of the right holder, the content of his or her interest in the land, and the uses to which particular tracts of land are put. Land rights thus extend upwards from the household, through the family group, the neighbourhood, the village, and the ward, to the chieftaincy, depending on the resources in question. These rights are not absolute ; their content is dependent on other rights which exist within this layered system. This is what is meant when we describe individual land rights as nested within family rights. Similarly, family rights nest within those of the clan or the local user group, which in turn nest or operate relative to those of the wider community. This system of nested rights is reflected in the different levels at which decisions pertaining to land are taken, for example family meetings, clan meetings, village council meetings and tribal council meetings. There is a system of referral upwards of disputes concerning land. It is important to appreciate that disputes are referred upwards only when they cannot be resolved at the local level.
Okoth-Ogendo The most important feature of indigenous land tenure is the fact that, within indigenous regimes, access to land and control over land do not coincide as they do in the common law construct of ownership. This distinction has been explained by Prof Okoth-Ogendo as follows: access to land is (a) a function of membership in the family, lineage or community, and is hence available to any person on account of that membership and irrespective of gender; (b) specific to a resources management or production function or group of functions and (c) tied to and maintained through active participation in the processes of production and reproduction at particular stages and levels of social organisation. The right of access is thus a multiplex phenomenon which varies in nature and content with the range of production activities in which individuals or communities were involved. Thus in any given community a number of individuals could each simultaneously hold a right or bundle of rights expressing a specific range or variety of functions e.g. cultivation, grazing, mining, hunting or transit. Control of land is (a) always attached to sovereignty (in its juridical non-proprietary sense) and (b) in consequence vested in the political authority of society expressed at different levels of social organisation, (c) for the sole purpose of guaranteeing the rights of those who enjoy access by reason of membership at those levels, and (d) is distributive both in space and time and between generations and in response to changes in agrarian structure as a whole. In that sense, therefore, control of land resources is exercised in terms of a social hierarchy in the nature of an inverted pyramid with the tip representing the authority of individuals within families, the middle the clan or lineage, and the base, the community of nation; these being decision-making levels designed to respond to issues of allocation, distribution and management of resources on the basis of scale, need, function and process. Neither the right of access nor the power of control, therefore, should ever be equated with ownership of the physical solum under this arrangement; for no person or group of persons had the exclusive control of both categories.
Impact of colonisation Terra nulius Insensitive imposition of common law Codification vs evolving Skewed in favour of traditional leadership that favoured the state Leadership became absolute Boundaries fixed; leadership fixed systems of accountability and decision making negated. a complex, overlapping and insecure system of land rights, the dislocation of land resources from the social, cultural and spiritual life of indigenous inhabitants, the suppression and subversion of indigenous land governance structures, institutions and laws. emergence of the state and its agents as the dominant factor in land relations. the virtual disappearance of common property resources as a result of the drive towards privatization, and marginalisation of social and economic minorities especially women, pastoral
Colonial courts Bennett: intended not only to settle disputes but also to proclaim the reach of government and the values of western civilisation Courts created pretense of recognition of indigenous law repugnancy provisions Creation of separate and unequal legal systems
Colonial impact on land tenure Because the customary system of land holding is different to the exclusive ownership paradigm of the common law, misperceptions about customary land holding were inevitable, and were only aggravated by colonial and post-colonial legislation. Among these misperceptions, Prof Okoth-Ogendo listed the following: that indigenous populations had no rights constituting property in land, this being possible only under Western property law and in terms of ownership conceptualised in terms of jurisdiction coupled with exclusive control. The ideology behind this reasoning is that property in land exists only if it is derived from some sovereign authority and if it vests exclusive rights of use, abuse and disposition in individuals; specifically that at family or individual levels, indigenous populations had, through customs and usage, not law, mere usufructuary rights in such land, such rights being held at the whim of traditional authorities or petty chiefs ; that in any event, indigenous communities qua communities had no juristic persona and hence could not legally hold any rights in the land occupied by them; and even where in the course of colonization, some land was reserved for their occupation these could only be held on their behalf either by traditional chiefs or statutory boards or other office-bearers; Notably, Prof Okoth-Ogendo has interpreted the vesting of title to the land resources of indigenous communities in chiefs or traditional authorities, as a strategy for the administrative subjugation and control of indigenous populations. (Royal Bafokeng)
Land tenure continued Because this system of land holding is different to the exclusive ownership paradigm of the common law, misperceptions about customary land holding were inevitable, and were only aggravated by colonial and post-colonial legislation. Among these misperceptions, Prof Okoth- Ogendo listed the following: that indigenous populations had no rights constituting property in land, this being possible only under Western property law and in terms of ownership conceptualised in terms of jurisdiction coupled with exclusive control. The ideology behind this reasoning is that property in land exists only if it is derived from some sovereign authority and if it vests exclusive rights of use, abuse and disposition in individuals; specifically that at family or individual levels, indigenous populations had, through customs and usage, not law, mere usufructuary rights in such land, such rights being held at the whim of traditional authorities or petty chiefs ; that in any event, indigenous communities qua communities had no juristic persona and hence could not legally hold any rights in the land occupied by them; and even where in the course of colonization, some land was reserved for their occupation these could only be held on their behalf either by traditional chiefs or statutory boards or other office-bearers; Notably, Prof Okoth-Ogendo has interpreted the vesting of title to the land resources of indigenous communities in chiefs or traditional authorities, as a strategy for the administrative subjugation and control of indigenous populations. He wrote extensively about the impact of the colonisers post the Berlin conference of 1884-1885 upon land administration systems in Africa. As he explained, these powers needed to resolve two basic legal issues relating to access to and control of what was essentially foreign territory. They did so by taking the view that political sovereignty in and of itself vested radical title to land just as if the foreign land was a domestic possession. That meant that the colonial power would have the right to confer property rights of any specie on whomever it may choose * + That imposition was everywhere enforced by a complex regime of property law founded on the common or Roman-Dutch law doctrines.
Post-colonial 1 Entrenchment of colonial laws Entrenchment of created power structures South Africa post-1994
Post-colonialism 2 1961: First Development Decade of UN Customary law is an obstacle: conservative; anti-market Customary law seen as a symbol of the tribal past and had to be modified and abolished (Bennett) Development coupled with need for African state unity customary law seen as pluralistic and divisive
New wave Return to recognition of the importance of customary law Framework and Guidelines on Land Policy in Africa, the African Union Commission, the African Development Bank and the UN Economic Commission for Africa encouraged countries to acknolwedge the legitimacy of indigenous land rights and recognize the role of local and community-based land adminsitration/management institutions and structures, alonside those of the State.
New wave cont Green paper for land reform in South Africa General comments on SER cultural appropriateness
New wave cont FAO, IFAD, UNCTAD and the World Bank Group have proposed the following Principles for agricultural investment that respect rights, livelihoods and resources: 1. Existing rights to land and associated natural resources are recognized and respected. 3. Processes for accessing land and other resources and then making associated investments are transparent, monitored, and ensure Statutory recognition of customary land rights in Africa accountability by all stakeholders, within a proper business, legal, and regulatory environment. 4. All those materially affected are consulted, and agreements from consultations are recorded and enforced. 5. Investors ensure that projects respect the rule of law, reflect industry best practice, are viable economically, and result in durable shared value. 6. Investments generate desirable social and distributional impacts and do not increase vulnerability.
alternative Recognition of customary law in its difference (vs titling as solution; codification) Recognition of the system as equal statutory regulation minimalist Bargaining power of communities Economic sustainability
Current situation Generally two ways that customary law systems react fly below the radar/disappear Currently 70-80% of Africans regulate their lives in terms of customary law Rural vs urban Outside mainstream human rights debate
Raechel Knight Ghana and Botswana first to undertake effort to acknowledge customary law soon after Independence since then a number of countries including Namibia, Niger, Uganda, Burkina Faso, Mali, Lesotho, Malawi, Swaziland, Mozambique, Tanzania, South Africa and others have followed, adopting a wide range of mechanisms of recognition of customary law and strategies to varying degrees of success. Some of these nations have created or are in the process of creating new administrative bodies that are not customary in structure but have taken over the management of customary rights (Botswana, Niger, Namibia, Tanzania, Burkina Faso, Mali, Senegal, Uganda) while others have made customary leadership structures the community-level managers of decentralized state land administration (Mozambique and South Africa). Many nations have declared customary land rights to be equal in weight and validity to formal, state-issued land rights, and some have made local-level customary dispute resolution bodies the lowest rung of the national court system, their decisions appealable up to the highest court.
The clash of two systems Yorta yorta point of intersection? Richtersveld: It is important to note that indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life. In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. Alexkor at paras 52-3 Customary law as complex system
How to find customary law The Constitutional Court held in Shilubana and Others v Nwamitwa - An enquiry into the position under customary law will therefore invariably involve a consideration of the past practice of the community. Such a consideration also focuses the enquiry on customary law in its own setting rather than in terms of the common law paradigm, in line with the approach set out in Bhe. Equally, as this court noted in Richtersveld, courts embarking on this leg of the enquiry must be cautious of historical records, because of the distorting tendency of older authorities to view customary law through legal conceptions foreign to it.
Customary law and land: Tanzania and South Africa Tanzania customary ownership rejected; only weak rights in land recognised. Kenya no customary/communal tenure rights recognised Richtersveld recognised aboriginal title (note SA Constitution) Endorois Most Constitutions acknowledge cultural diversity/right to culture/right to respect custom
Customary law and human rights Neo-colonialism? Fundamental rights as organising principles or environment to the system? Harmful practices immediately outlawed; progressive realisation of other customary rights as system evolves? Shilubana immediate realisation of equality vs custom
Who makes the law? Shilubana Relative power of chiefs vs traditional checks and balances Powerful chiefly lobby in SA TCB according to custom
Customary law and indigenous peoples right Powerful lobby Various international instruments (eg FPIC) Definition: False distinction? Broaden to accommodate all customary communities?
Issues arising Politics of chieftainship Ethnicity Inc Small community based to superpowers
outsourcing International phenomenon Power imbalance South African example fourth tier of government Tribal levies