Customary land tenure system

Land tenure systems are diverse and complex. They can be formal or informal; statutory or customary; legally recognized or not legally recognized; permanent or temporary; of private ownership or of common property; primary or secondary. Tenure systems in many developing countries have been influenced by former colonial land policies that overlaid established patterns of land distribution. Thus, many national and local systems are made up of a multiplicity of overlapping (and, at times, contradictory) rules, laws, customs, traditions, perceptions and regulations that govern how people’s rights to use, control and transfer land are exercised IFAD, (2008).

The legal system by which land is omen in the provinces is something to be discussed on a particular topic. Customary tenure is critical in both rural and urban areas. In many countries in the world the only tenure type available is customary tenure. This is true both in Africa as well as in Asia (e.g. India). Given the inability of the state to deliver security of tenure through existing statutory systems, customary tenure is critically important for food security, agricultural productivity, family and group right tenure approaches and protects the rights of secondary tenure rights holders (GLTN, Web page). It is believed that the provincial lands are shared among the community people when on the other hand Chapter 122 of the laws of Sierra Leone states that the chiefdom councils are the people who have the responsibility of taking care of the community lands. Even though there is the belief that land in the provinces is owned by families and individual, others believe that individual ownership exists Sierra Leone Constitution, (1991). Within the headquarters of the 12 districts in Sierra Leone, customary law has passed across the different laws of government. In those areas, land can be owned and sold off by individuals.

When a land is sold in the provinces, a contract, which sets out the names of the people, the date of the sale, the particular place that was sold and the price is completed. The completed agreement is signed and witnessed by the people involve and survey plan is attached to the document. The paper is then taken to the District office and can be used as evidence in a court of law as proof of transaction. Recently, in the provinces, the practice of drawing up the registering legal document that transfers property from one person to another has developed gradually and there is no legal authority for this type of practice.

However, recognizing the decision-making power of customary systems and authorities may have serious implications for women's land rights and those of the poor, as land allocation and dispute settlement tend to be dominated by elites, usually men. At planning level, it impacts negatively on urban management. Customary land development does not comply with formal planning regulations and norms, does not provide basic infrastructure and services, and the lack of transaction records generates a series of land disputes (GLTN, web page). Under this tenure, land is owned by a family or lineage in a particular area. Its utilization is usually controlled by elders, clan heads or group in its own well-defined administrative structures. In principle, the paramount chiefs hold the land in trust for those extended families or lineages attached to a particular chiefdom, no significant land related decision is final until a paramount chief approves Unruh and Turray, 2006).

Rules and laws in the customary and statutory land tenure system can be very different and also similar. Though however, in the customary system, they are not fixed, nut gradually developing based on the diverse factors like cultural interactions, population pressures, socio-economic change and political processes. And these laws L. Cotula, (2007) believed are typically bodied of (usually unwritten) rues founding its legitimacy in “tradition”, i.e. in its claim to have been applied for time immemorial. So, one will find that, the content of customary law is extremely diverse, possibly changing from village. Generally, this diversity is an upshot of series of cultural, ecological, social, economic and political factors. Because of this assortment, generalizing the system is not too necessary. Customary land tenure issues are linked as fundamental and economic Rosalind Hanson-Alp CARE-Sierra Leone, (2005). In Uganda over 70% of land is held on customary tenure system. In such cases, people own their land, have their rights to it, but do not have land titles. Some tenants on such land allocate specific areas to themselves with known and defined boundaries usually marked by ridges, trenches, trees etc.

Alconland, (2008). Customary tenure is critical in both rural and urban areas. In many countries in the world the only tenure type available is customary tenure. This is true both in Africa as well as in Asia (e.g. India). Given the inability of the state to deliver security of tenure through existing statutory systems, customary tenure is critically important for food security, agricultural productivity, family and group right tenure approaches and protects the rights of secondary tenure rights holders (GLTN, web page).

Kenya being a diverse country in terms of its ethnic composition has multiple customary tenure systems, which vary mainly due to different agricultural practices, climatic conditions and cultural practices. However, most customary tenure systems exhibit a number of similar characteristics in Kenya; to start with, individuals or groups by virtue of their membership in some social unit of production or political community have guaranteed rights of access to land and other natural resources. Individuals or families thus claim property rights by virtue of their affiliation to the group. Secondly, rights of control are rested in the political authority of the unit or community. This control is derived from sovereignty over the area in which the relevant resources are located. Thirdly, rights similar private property accrues to individuals out of their investments of labour in harnessing, utilizing and maintaining the resource. Lastly, resources that do not require extensive investment of labour or which by their nature had to be shared, for example, common pasturage re controlled and managed by the relevant political authority. Every

individual member of the political community has guaranteed equal rights of access thereto. The regulatory mechanisms imposed by the political units such as exclusion of outsiders, seasonal variations in land use and social pressure ensured sustainable resource utilization. This mode of ownership in Kenya is currently governed by the Trust Land Act by which all land in the rural areas which is either government land nor individually owned is vested in the country council trust for the residents living there. Waiganjo and P.E.N Ngugi, (2001).

Constitutions, Statutory Law, Titling and Registration Constitutional provisions serve as an important justification for trying to improve women’s interests in the context of reforms. It all depends on how the constitution is used depending on the strategies adopted within that country for securing women's rights. Somehow, these constitutional provisions largely require some form of effective monitoring and scrutiny in order for them to be properly applied in the countries and for the benefit of all. The processes which challenge the constitutionality of laws and practices or re-examine the constitution itself in the light of its principles raise questions about the use of the courts and state processes. Some feminist lawyers have brought out some very critical limitations in the use of law to produce gender equity. In the first place there is a problem of access. Time and again, the point has been made about women’s distance from legal processes and their inability to access the courts. This is underlined by how celebrated the cases of the few women who do go to the courts become. It has been reported that women have been saying they need ways of resolving disputes which are accepted by male relatives and members of the community Odgaad, (2000), Leonard and Toulmin, (2000).

It is true that formal legal cultures and institutions are women friendly, despite them claiming their impartiality and neutrality. Women and feminist lawyers in the world at large have exposed gender bias in legal cultures and the law, criticising not just lawmakers and legal practitioners, but many legal concepts. One of the paradoxical features of Africa’s legal cultures and law is that some of the gender bias in formal law arises precisely from the construction of ‘lawyers customary law’. As well, women’s claims under modern legal systems in African states are undermined when men argue that their positions are contrary to 'custom'. The language of custom here is being used politically in national level discourses to undermine the legitimacy of women’s claims within modern legal frameworks using a rights discourse Stewart, (1996). This creates a hard job for women’s activist.

Also, some of the tenets of the formal equality and individual person’s rights does not posit easily within customary practices that are embedded in social relations. This is so in so many African settings. More than that, those principles, when applied to conflict adjudication or law making, may lead to outcomes that ignore social relations. The discussions around women's interests in the context of land reforms raised the issue of the breadth and depth of approaches to women’s interests in land, i.e. whether to focus solely on gender equality or take also into account more general issues which could undermine women’s gains. The implication here was that the law reforms had to be judged by multiple criteria, that are women’s interests were best served by simultaneously addressing broader local and community interests as well as gender discrimination. Within such an approach, commentators have suggested that the Land Acts of Tanzania have been a setback for local communities in spite of what women have gained. As noted by Mbilinyi, ‘the irony is that whereas women’s rights to land e.g. as wives seem to be protected under the new Village Land Law, their rights as members of communities are at risk given the liberalization principles and the administrative structure established’ Mbilinyi, (1999, 5). According to Wily and Hammond, similar concerns have been voiced in relation to land tenure reforms in Ghana, that as designed, they were likely to hurt the interests of groups with insecure land interests Wily and Hammond, (2001).