Credit: Deborah Espinosa.
Customary Law and Community Land
Customary tenure refers to the traditional institutions and rules that communities around the world have created to administer land and natural resources. These practices are interwoven with traditional community governance and social systems, which give them great resilience and flexibility. Community land refers to land that has long been owned, managed, held, and/or used by local people.
Community land may be divided into parcels for individual or family use, but it remains in the ‘ownership’ of the larger community. Other community land is held in common for shared use. Community land and resources may include farm land, forests, range lands, fishing areas, watering points, wildlife habitats, and sacred areas.
In most African countries, the majority of the population lives in rural areas, and holds land based on undocumented customary arrangements. Customary systems can also hold sway in the rapidly growing peri-urban areas that fringe Africa’s cities and towns. They often provide the only means for local people to assert their rights.
But customary practices over land are not perfect. In some cases, they sustain inequitable or discriminatory practices. Conflicting statutory law or corrupt customary leaders can weaken customary systems. Customary practices often favor men, and thus reinforce women’s inequality and poverty. Such shortcomings can and must be addressed if customary systems are to effectively promote local people’s rights to land and resources.
And, today, strong customary institutions that stand on the side of local people are more important than ever.
As global competition for productive land and valuable natural resources increases, both domestic and foreign investors can too easily ignore or dismiss customary rights, especially when those rights are undocumented. Without urgent action to document customary lands, strengthen equitable land governance by customary institutions, and integrate customary and statutory law, millions of people are at risk of losing their rights to land and resources held under customary tenure.