Outside of national parks and private land, roughly 90 percent of sub-Saharan Africa’s land is administered under customary tenure—arrangements based on a society’s customs and history. In a highly uncertain economic environment, a customary land right has proven for many poor people to be the one reliable asset over which they have secure control. Yet despite its pervasiveness as the principal institutional arrangement for providing access to secure land rights, customary tenure is rarely recognized under statutory law.
Statutory recognition of customary tenure would afford customary rights holders many economic and social advantages. Of immediate benefit would be the potential to halt the growing phenomenon of state-owned land being sold or leased to large-scale investors even while it is held in common trust under customary tenure arrangements. Statutory recognition also has the potential benefit of bringing customary land administration under the domain of civil law, giving equal rights to women on matters of property ownership, inheritance, and use.
Customary tenure arrangements represent intact systems of economic, social, and cultural rights—so why not focus on protecting and deepening those rights? Neither the Universal Declaration of Human Rights nor the International Covenant on Economic, Social, and Cultural Rights recognize the right to land among the rights that signatories agree to recognize and uphold. However, many of the protected rights, including the rights to shelter, food and livelihoods, arguably are contingent upon the right to land.
Several sub-Saharan African countries have taken important steps toward extending statutory recognition to customary land rights, on par with freehold and public tenure. Botswana was a pioneer in this movement; its 1968 Tribal Land Act placed customary rights at the center of the national tenure system, and made the administration of customary rights subject to civil authority, removing traditional authorities from the land administration process. Recent land policy reforms in Kenya, Mozambique, and South Sudan have similarly extended full statutory recognition to customary tenure arrangements.
International human rights law should codify the Right to Land, including the right to land held under customary tenure arrangements. This measure is long overdue and makes good sense, especially for sub-Saharan Africa, where a plurality of tenure systems—customary, freehold title, and public—should enjoy equal recognition before the law.