African Curses: Communal Land Ownership

Communal land ownership is a curse. When everything belongs to everyone, then nobody owns anything. Each and everybody own nothing. That lack of legal ownership is at the core of lack of progress in Africa.

#This is the first article of a collection that will focus on reforms needed within the African culture.

Communal land in rural Zimbabwe

Communal land ownership is cultural. It is part and parcel of the African Culture. It was there before slavery and colonialism and still exists today. Africans have not dared to change the status quo even though it is no longer consistent with the times that we are living in. This land tenure system is prevalent in almost all African countries. It is a continental problem.

For most Africans, there is no problem with communal land ownership. Most do not even understand the legalese involved and those who understand don’t care. I intend to briefly graze on the following areas:

1. Problems inherent in the concept of communal ownership
2. Problems related to the law thereof
3. Reasons why Africa is stuck with communal land ownership
4. Solution — Repealing Communal Land Ownership Act and conferring Title Deeds
5. Benefits to be harvested from implementing the solution

Problems with Communal Land Ownership

• A huge percentage of land cannot be financialized. Although it is being utilized in sustaining peasantry livelihoods for rural population, it cannot be roped into the mainstream financialized economy. Thus, we have a huge asset that is not financialized. Why should assets be financializable? Financialization allows for assets and risks thereof to be readily exchangeable for currency. The presence of this optionality spurs trade. More trade translates to a higher GDP and higher welfare.
• Communal land is not legally recognized as a personal asset. As such it cannot be used as security in accessing capital and debt markets. Communal land is not bankable.
• It cannot be easily transferred to the next person (human or juristic) in a legally-binding manner.
• A huge portion of the population is left out of the modern economy. There is no cord tying the rural masses into the economy. This is in addition to the general lack of access to banking services. In contrast, commercial farmers (mostly white) have title deeds that act as financial cords in addition to robust supply chains that tie them into the mainstream economy.
• Colonial land divisions excluded black rural farmers from obtaining individual title for the land they occupy. This is not to say communal land ownership is a colonial construct. It isn’t, but colonial regimes perpetuated this absurdity and formalized it with poorly drafted laws.
• Communal Land Ownership is usually lopsided towards men and is unfair to women who mostly work on the land but are not recognized by tradition as rightful occupiers.

Problems with the Community Land Ownership Acts

• These patched-up laws exist is various forms across African continent and they are all as problematic as the community land ownership concept itself.
• The Communal Land Ownership Act in (insert your country) is a cover-up. It’s a shoddy law. It’s the equivalent of a conspiracy theory as far as property law is concerned. It’s not real. It’s all words and no substance. It does not confer absolute title. It’s an allegation. The occupants of the land are “alleged” to be owning the land, but they don’t really own it, they just occupy it. Its a fraud.
• The Act renders ownership to the community and custodianship to the community leader, who is usually the traditional leader. This is as confused and arbitrary as it can get for a law. Firstly, a community itself is a loose construct. It’s merely people living in the same place and having particular characteristics in common. Communities by nature are dynamic. They are not constants. They shrink and expand, geographically and numerically. New members are added, and others are subtracted. In some instances, entire communities are destroyed and in some instances entirely new communities are born. The idea, concept and definition of a community is slack whereas Property Law should be specific. Secondly, ownership cannot be communal. Ownership should be exclusive for it to be binding and for it to be real. Thirdly, the idea that a traditional leader can act as custodian on behalf of the community is enfeebled by the incompetence and irrelevance of traditional leaders vis-a-vis law in general and property law in particular. The concept of a traditional leader is at odds with the judicial system and constitutional democracies. It’s an entire topic that needs to be critiqued just like communal land ownership.
• It is not a legally enforceable law. It’s an absolute joke. A total farce. The Communal Land Ownership Act in (insert your country) is at odds with reality, has content that is ambiguous, has a lot of overlapping rights and tramples on the rights of rural women.
• The litmus test for communal land ownership is this: Can you obtain a bank loan using it as security? If you are lending, can you accept it as security. It’s yours, right? Can you monetize it? Communal land ownership fails this litmus test. The whole concept crumbles like a deck of cards.

Why do Africans love communal land ownership?

• Culture, that’s how it has always been. It has always worked for our grandfathers and great-great grandfathers. People like to keep things the way they have always been. Resistance to change.
• Leadership void. We have no leaders to lead us in initiatives like these and explain the merits and demerits. A huge percentage of our populations are “legally illiterate” with very little to non-existent knowledge of civilized land laws
• Colonization. This really damaged us psychologically. People were driven into overcrowded and infertile reserves whilst the white farmers pegged large pieces of land and obtained title. But why has Africa continued with communal land ownership long after independence? We have assimilated and copied many things from white people but have not copied the individualization of property title.
• Tribalism and clan culture. We have always been organised along tribal lines. We are a divided continent. We are a divided country. We are divided by tribes. We are divided by clans and by totems. We like the division and thrive in them because they give us identity. They give us a sense of uniqueness. We do not want to have a strange person from a different clan speaking a different dialect as a neighbor. We want to stay where our ancestors have always stayed, worshiping their graves, and performing rituals. This is what makes us Africans. Guess what, it is silly, backward, and anti-development. It has no place in a modern society.
• Civilization. We are not yet civilized. When we eventually become civilized, we will repeal the Communal Land Act, carry a land audit, and confer title to citizens. It’s a matter of time. Maybe the next generation, or the generation after the next will implement this. Or maybe this current generation can drop the culture and civilize like the rest of the world.
• Lack of Knowledge. Africans are obtuse. It’s not racism. It’s not self-hate. It is self-reflection and introspection. Yes, you might be individually brilliant and claim to be an exception. It’s okay, you are smart. However, we as Africans, are collectively not clever. Most of the world has moved towards individual ownership of land, but Africa has not. The explanations we put forward in trying to explain our backwardness are mere excuses and escapism. By and large, we Africans, are governed by stupid leaders because we are stupid. If we were smart,we would be governed by smart leaders. We complicate simple things and then shy away from complicated things.

Solutions

• Land Reform — The only absolute corrective measure available is land reform that confers title deeds to people who dwell in rural areas. This type of land reform will liberate millions of Africans.
• Referendum — Governments in African countries need to carry out countrywide referendums whereby people choose between communal land ownership and individual ownership. Given proper information, the majority might choose individual land ownership. Rural people are fed up of being bullied by traditional chiefs.
• Land Audit — A lot of these have been conducted before but most of them have not been comprehensively undertaken with special attention to communal lands, tribal trust lands and government-owned land. Land audits, geographical mapping and public land surveying are necessary steps leading to the conferring of title deeds.
• Conferring Title Deeds — a massive process of conferring title deeds should be carried out once a comprehensive land audit is done. Every space of land should have title deeds.
• Body Corporates— Areas that are referred to as communally-owned patches of land such as grazing areas should be handed over to Body Corporates that should replace the archaic village councils. Members of the said communities who are now title deed owners can utilize the areas controlled by the Body Corporate as per rules and regulations stipulated in each Body Corporate. It is not rocket science; villagers can easily grasp these concepts.
• Government Land — Land that is not being utilized should be handed over to the government. Unclaimed areas should also be in the government’s hands. The government should register title of this land, utilize it for the benefit of the public or to be kept as a national reserve to be freely distributed to future generations. Part of it can be sold to foreigners and proceeds vested in Sovereign Wealth Funds that will in turn invest funds in higher yielding liquid assets as a way of preserving diversified wealth for future generations. However, African governments are notorious for abuse of resources. This necessitates land distribution.
• Land Distribution — The government should distribute vast pieces of land to the millions that do not have land. There is enough land in Africa for everybody. The government should aim to own as little land as possible and have as much land as possible in the hands of the citizens. The government should not become a land baron.

What will these solutions achieve?

• Giving title deeds will be merely a book exercise of legally acknowledging that people own what they say they own. Though it is a book exercise, it has serious personal ramifications. It brings dignity to Africans.
• Creating a market for rural land. People should be able to buy and sell rural homesteads. This will unlock capital, foster integration, and go a long way in rooting out tribalism. Tribalism is a cancer that is perpetually eating away Africa.
• Empowering the rural masses (especially women). The exercise of conferring title will be responsible for bringing millions of Africans into contact with the mainstream financial economy thus empowering them with what they already have.
• Financialize a huge asset which unlocks billions in locked capital, trade, welfare, and GDP. The total bankable assets in Africa will rise tremendously.
• Title deeds will address the gender property ownership imbalance. At the same time it will blow “broken” African inheritance systems off-perch. Traditional inheritance laws in African societies are notorious for depriving women and children their rightful inheritance.
• Peace — Land allocation is a major source of conflict in rural areas with all sorts of disputes arising among families, neighbors, villagers, tribal authorities, headmen and chiefs. Conferring title deeds will be a contentious process but it will be the final conflict. the conflict that ends all land conflicts. It will bring finality to the matter.
• Integration — Free buying and selling of rural land will allow free migration of people which will allow for dilution of cultures, integration, tolerance, and diversity. We, Africans, might finally be able to see beyond race, tribe, dialect and see ourselves as one people.

“Chisi chako masimba mashoma” a Shona proverb translates to “You have little power over what is not yours”.

Food for thought.

Ciao!