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Formalisation of customary land rights might dispossess the poor



WHILE the common belief is that property rights are the key to overcoming poverty, especially in the developing world, a new study by the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape in South Africa says title deeds and formalisation of customary land rights are not a magic wand on their own.


In his widely acclaimed book, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, economist Hernando de Soto says property rights are key in land ownership and to overcoming poverty in the impoverished developing nations.

“The hour of capitalism’s greatest triumph,” writes de Soto, “is, in the eyes of four-fifths of humanity, its hour of crisis”.

The world-famous Peruvian economist takes up one of the most pressing questions the world faces today: Why do some countries succeed at capitalism while others fail?

In strong opposition to the popular view that success is determined by cultural differences, de Soto finds that it actually has everything to do with the legal structure of property and property rights.

Every developed nation in the world at one time went through the transformation from predominantly extra-legal property arrangements, such as squatting on large estates, to a formal, unified legal property system.

In the West, it is understood that creating this system is what allowed people everywhere to leverage property into wealth. De Soto’s book revolutionised people’s understanding of capital and points the way to a major transformation of the world economy.

However, a research paper on this subject presented by Zimbabwean academic Dr Phillan Zamchiya at a regional land policy brief on 29 March in Johannesburg, South Africa, says property rights alone do not address poverty, especially among rural women.

The conference was attended by delegates, including policymakers, from South Africa, Mozambique, Zambia and Zimbabwe.

The research is an outcome of a project conceived in 2020 to investigate how and why the formalisation of customary land rights is affecting tenure security for women living in rural areas in Mozambique, Zimbabwe, South Africa and Zambia and the relational implications for policymakers.

“Customary land rights are often multiple (a bundle of land rights), nested, shared (even with seasonal users) and overlapping in character and therefore difficult to individualise and record,” Zamchiya said.

“The processes can make customary tenure more legible and available on the open markets (which are not gender neutral) dominated by wealthier big private companies, more educated and more powerful women and men with social and political networks at the expense of the poor households with traditional elites selling land.

“This can lead to market-driven displacements of the poor and vulnerable.”

However, the research across four countries in the region, including Zimbabwe, says property rights are not simply the magic wand to this problem.

“Formalisation has also proven not to be a magic bullet to unlock lending to the poor by commercial banks,” Zamchiya said.

“Commercial banks do not lend to the poor because of the high risk of not repaying the loan, the low value of their household assets, and high transaction costs. Families earning less than around US$2 400 per month are unlikely to get access to formal credit using land or housing as collateral, whether or not they hold state leaseholds/title deeds/duats or rural certificates to their homes and land.

“Even if the government was to make it legally mandatory or persuade the commercial banks to lend to the poor using their land, houses or assets as collateral, failure to repay the loans would result in possession of their homes leaving them landless and homeless. They have other informal networks where they borrow as we have seen.

“Technically fixing land governance without agrarian support is not likely going to lead to increased productivity, investments, economic development and poverty reduction. In fact, there is a danger to institutionalise gendered inequalities.”

Formalisation, he further said, can cause conflict such as gender-based violence through introducing simplified and alien categories such as the “owner” which tend to contradict local custom and to exclude the husband and other family and community land users.
Documentation of land rights has also helped to enhance the territorial interests of the state and traditional authorities to govern, control people and consolidate authoritarian power,” he said.

“Registered title deeds creates unaffordable costs for many poor people. They have to pay rates and most end up losing their land. The associated land registers are a recurrent cost and difficult to maintain to an extent that they lose track over time and fail to reflect the contemporary accurate record of changing local land relations,” Zamchiya said.

“Titling is probably useful to elite and middle-income men and women who can afford financial leverage, risk and real estate markets. For the poor, whose concerns are more about day-to-day survival, direct access to livelihood and keeping costs down it may provoke their further descent into poverty.

Most countries including in the Global North are struggling with how to reform tenure to improve land tenure security for all – especially women – and deepen democracy.

A number of global instruments have been put in place to secure women’s land rights.

However, in sub-Saharan Africa and in the Global South one of the most dramatic developments is the rapid drive towards formalisation of property rights in land  through surveying of boundaries, registration and documentation of customary land rights as a way to improve tenure security.

This proposition is embedded in the gender-blind Evolutionary Theories of Land Rights whose central overt and covert logic is a drive towards Western forms of individualised private property.

This can be conceptualised as evolutionary development and is mainly supported by some free market economists and African feminist lawyers.

To signify this trend, between 1990 and 2018 there were 33 new land laws enacted across sub-Saharan Africa, much of them with a focus on formalising property rights in land under customary tenure.

Aspiration six of the African Union Agenda 2063 also stipulates that 90% of rural women must have access to productive assets, including land, by 2025 which remains pie in the sky.
Formalisation takes different dimensions in different countries depending on local circumstances and the different interests of stakeholders.

However, the formalisation programmes seem to be largely embedded in Western evolutionary models of land tenure rights that draw from a narrow construction of legality, which presumes that individual ownership is ultimately inevitable for all social contexts.

“In all four countries, formalisation is accelerating the commodification of customary land, leading to the rise of informal ‘land markets’,” said Zamchiya.

‘This is despite the fact that land laws in all four countries do not permit the selling of customary land. The processes of commodification are starker in our study sites in South Africa where over three quarters (75.25%) of our respondents who ac- quired residential plots or arable land in the past ten years paid for it in cash to the traditional authority or individuals.

“This is followed by Zimbabwe where 59% of our respondents had bought land in the past five years. In our study sites in Mozambique and Zambia informal land markets are also established. Traditional leaders are primarily the ones selling land in South Africa, Zambia, and Zimbabwe outside the law, while in Mozambique it is mainly individuals and domestic elites.”

Zamchiya added: “Land prices are also increasing, to the disadvantage of many vulnerable women. Some urban elites, salaried local workers, migrants, and the local big shots – mainly men – acquire land in corrupt exchanges for speculative and not production purposes.

“In many cases, the poor women could not afford the costs involved, putting land rights beyond the reach of many, especially in a region where close to 88 million people (translating to 45.5% of the population in rural areas) live in extreme poverty with the highest number being among the female-headed households.

The emerging new land rights property system is becoming a mechanism to redistribute land from the poor to the rich and from farmers to speculators.” Commodification of land is resulting in a new question of elite concentration in southern Africa.

“The privatisation of customary land shows that there is an evident shift in decision-making power from families and communities to the state officials, private consultants, traditional leaders and local big ‘men’ sometimes connected to the ruling parties who challenge the authority of the traditional ‘rural big men’,” said Zamchiya.

“Emerging is a hybrid of traditional, elected and appointed institutions to govern customary land whose nature and characteristics we still need to fully understand.

“The research found no evidence of certificates or customary land and houses being used to apply for loans from commercial banks. The land laws in Mozambique, Zimbabwe and Zambia do not provide for the use of customary land as collateral.”

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