Customary Land Tenure in Africa

From P2P Foundation
Jump to: navigation, search


Discussion

Individual, Collective and Intergenerational Rights

The clan is the primary social institutions in the Cameroon-Gabon forest continuum. Based on exogamy and virilocality (which, combined, require women to marry outside of the clan and in their husband’s residence), it is segmented into patrikin groups of progressive inclusiveness. These groups, the lineages, are the essential units through which territorial and tenure rights transit.


These are founded upon genealogy and the valorization of human labor and are first made of three hierarchically interlinked series of rights, which have a ‘constitutional’ value in the traditional system:


Genealogical rights

These are constituted by the establishment of a territorial right of first occupation, symbolized by the ax right to virgin land and the establishment of a lineage (mvog). These rights are transmitted through the genealogical line to the male descendants of the founder. The rights of these first generations are not really lost with their death. The land remains the ultimate property, in individis, of generations dead, living and unborn; hence, the principle of “non exo-alienability” of land in African customary tenure systems (Verdier, 1971).


Productive rights

All individual rights to natural resources have a basis in usufruct. The first productive right is the right to live by one's own labor. All members of the community, including strangers to whom asylum has been accorded, are ‘constitutionally’ entitled to this right. The fundamental appropriation principle in this series of rights is the incorporation of labor into the resource. The enduring physical evidence of labor done on determines the duration and security of individual tenure. This is the second type of ax right, as an individual right of development.


Succession rights

These are determined by the principle of patrilineal descent, and guarantee the access of men to inheritance through their nuclear lineage. Because of virilocal exogamy, women are generally excluded from these successoral rights, although this principle may be changing (Diaw, 1997a). These three series of rights together guarantee the equilibrium between the universal right “to create” and to live by one's labor, and the imperative of conserving within the group the resource base necessary for its reproduction from one generation to the next.


“Nested Rights”, Land Conversion, and Productive Cycles

Chimere Diaw:


"These three series of rights are expressed in space through four distinct access and property regimes:


Collective ownership

This property regime applies to all areas under human influence, be they forests, rivers, swamps or farm land. It is the result of the genealogical rights held by the corporate lineage, that is, the operational unit that deals with land allocation, access, succession, litigation and other aspect of the tenure system. Several such lineages, endowed with their own exclusive land base, may coexist within the same community and share common pool resources (e.g., primary forest and fisheries) and common governance institutions (e.g., village councils).


Individual control

This is the domain of productive rights when they are associated with an investment in the resource. Crop fields, tree-plantations, fallow lands, swamp farms and women’s fishing barrages (fis) are all under this access regime. The lineage remains the collective owner of the resource base, but individuals within the framework of their household and nuclear lineage exercise actual exclusive control. In cases of perenial investment in the resource (cocoa or oil palm plantations, fishponds, etc.), this regime may have all the features of permanent ownership, except for the possibility of exo-alienability of the land base. Common pool access. This definition is more exact than that of ‘common property’, since it refers, as with the previous one, to an access regime based upon collective property. Access is free to all members of a territorially based group (the corporate lineage or the community, as a cluster of lineages) and restricted to outsiders. This access regime is the pivotal element in the dynamics of resource use and tenure conversion. All collectively owned resources are subjected to it, at some stage in their lifetime. There are only two fundamental ways of transforming the initial collective or open status of resources into an individually owned product: enclosure or extraction (figure 2). One unit of resource enclosed or subtracted by one individual from the common pool is not available to the next. Agricultural fields, tree farms or fishponds are typically subtracted through enclosure, whilst the appropriation of fish, wildlife and forest wild fruits can be accomplished only through the so-called ‘rule of capture’.


Free access

Areas exempt from exclusive control are quite rare in the forest zone. They consist mainly of arid zones, tracks and some rivers. Some forest products, such as esok, Garcinia lucida, are also subject to open access.


Conclusion

Chimere Diaw:

All these regimes interlink to form a prism of nested rights applying to nested eco-niches across the landscape, and overtime. This is because the land base and above ground vegetal and animal resources may be subjected to different tenure statuses and transformation conditions26. Several layers of rights are thus intertwined into different segments of the landscape. Agriculture in the area has also been historically built on long term productive cycles that imply several mutations and transmutations of the natural and social statuses of land (figures 3 & 4). This cycling is neither linear nor unique, and lead to numerous variants. It has, so far, permitted in most areas the reconstitution of secondary and mature primary forests, after a period of agricultural use." (https://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/312/diaw.pdf?sequence=1&isAllowed=y)