THE RESILIENCE OF CUSTOMARY LAW BASED COMMUNAL LAND TENURE.
First resilience of customary law based on communal land tenure simply means the changes of
the customary laws on the communal land tenure
Customary law-based communal land tenure refers to systems of land management and
ownership that are governed by traditional, often indigenous, legal norms and practices rather
than by formal statutory law
The fact that most resource users in Africa obtain access to land through local land tenure
systems and that land legislation frequently fails to be fully enforced is what precisely
contributes to the robustness of customary law based on communal land tenure. In recent years,
there has been a focus on how these customary rules are being superseded by contemporary
tenure systems, which have made room for the understanding that land policy and legislation
must be based on local custom.
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Major changes in African economies and cultures have resulted from the modification of
customary laws regarding communal land tenure. These changes include increased urbanization,
population expansion, economic monetarism, diversification of sources of income, increased
integration into the global economy, and cultural shifts. Major modifications to local land tenure
systems from communal land tenure systems have resulted from all these processes. Due to
decades of colonialism and government intervention after independence, these customary laws
which are founded on communal land tenure have undergone significant modification.
Additionally, they are constantly being adjusted and reinterpreted in light of social, economic,
political, and cultural developments.
The resilience of customary law based on communal land tenure in Africa is primarily due to the
following factors:
1. Ineffective Implementation of Modern Land Legislation: Despite the introduction of
modern land legislation in many African countries, these laws often struggle to be properly
implemented. This is due to various reasons, such as lack of resources, corruption, and resistance
from local communities. As a result, customary land tenure systems continue to be the primary
means of accessing and managing land in many regions.
2. Reliance on Local Land Tenure Systems: Most resource users in Africa gain access to land
on the basis of local land tenure systems. These systems have been in place for centuries and are
deeply ingrained in the social and cultural fabric of African communities. They provide a sense
of security, belonging, and identity for many people.
3. Recognition of the Importance of Customary Law: In recent years, there has been a
growing recognition that land policies and laws must be built on local practices. This has led to a
shift away from the approach of replacing customary laws with modern tenure systems. Instead,
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Land Tenure Rights by Prof Emmanuel Kasimbazi
the focus is on finding ways to integrate customary laws into modern land governance
frameworks.
4. Resilience of Customary Land Tenure Systems: Customary land tenure systems are often
highly resilient. They have evolved over time to adapt to changing circumstances, and they
continue to play a vital role in the lives of many people in Africa.
These factors together contribute to the resilience of customary law based on communal land
tenure in Africa. While modern land legislation may have been introduced in many countries,
customary land tenure systems remain the dominant means of accessing and managing land in
many regions in Africa .
Some of the major changes to customary laws on the communal land tenure include
1. URBANISATION.
Africa is experiencing rapid urbanization, with the percentage of the population living in cities
increasing dramatically since the mid-20th century. This growth is largely due to changes in land
laws, which have shifted from traditional communal ownership to more individualistic property
rights. While urbanization has brought economic benefits, it has also led to challenges, such as
the loss of agricultural land and potential conflicts over land use.
2.DEMOGRAPHIC CHANGE .
This is another factor that contributed to the changes in customary laws based on communal land
tenure. In some parts of Africa, there has been significant population growth, which has led to a
significant increase in population density. These countries may be occupied by deserts or other
barren areas, which forces people to live in productive areas because they are unable to simply
move to other people's territories, which have their own set of rules. Taking this into
consideration, it is natural for customary laws to change to allow people to purchase or sell land
in any location.
3.CONFLICT.
The main issues of armed conflicts in Africa are often over land. This has devastated many
regions, including the Great Lakes region, Sudan, Somalia, the Mano River regions, and Ivory
Coast. Examples include the conflict between the Kalenjins and Luos over land in Sondu. While
both groups know there are rules governing the border, they often ignore them in favor of their
customary laws. These customary laws may be outdated and not align with modern land laws.
Armed conflicts can also disrupt local land tenure systems and lead to changes in customary
rules and institutions. This can be seen in large-scale resettlement processes, as in Burkina Faso,
where the return of migrants from war-torn Ivory Coast increased pressure on land and led to
greater monetarization of land relations. Additionally, the chaos of war can weaken customary
institutions managing land rights, leading to changes in rules to maintain peace and regulate land
relations2.
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Changes in ‘customary’ land tenure systems in Africa edited by Lorenzo Cotula
