The Politics of Land Reform in Africa: From Communal Tenure to Free Markets

by Ambreena Manji

Overview

Across Africa land is being commodified: private ownership is replacing communal and customary tenure; Farms are turned into collateral for rural credit markets.

Law reform is at the heart of this revolution. The Politics of Land Reform in Africa casts a critical spotlight on this profound change in African land economy. The book illuminates the key role of legislators, legal consultants and academics in tenure reform. These players exert their influence by translating the economic and regulatory interests of the World Bank, civil society groups and commercial lenders in to questions of law. Drawing on political economy and actor-network theory The Politics of Land Reform in Africa is an indispensable contribution to the study of agrarian change in developing countries.

Product Details

ISBN-13:	9781848137530
Publisher:	Bloomsbury Publishing
Publication date:	07/04/2013
Sold by:	Barnes & Noble
Format:	eBook
Pages:	160
File size:	431 KB

About the Author

Ambreena Manji is a Reader in the Department of Law, University of Keele. She is also a Fellow of the Institute of Commonwealth Studies, University of London. She has written extensively on land reform, gender and development, and the role of international financial institutions.
Ambreena Manji is Professor of Land Law and Development at Cardiff University. Prior to that, she taught law and development at the School of Law, University of Warwick. She is also a Fellow of the Institute of Commonwealth Studies, University of London. She has written extensively on land reform, gender and development, and the role of international financial institutions.

Read an Excerpt

The Politics of Land Reform in Africa

From Communal Tenure to Free Markets

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By Ambreena Manji

Zed Books Ltd

Copyright © 2006 Ambreena Manji
All rights reserved.
ISBN: 978-1-84813-162-0

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CHAPTER 1

Introduction

The politics of land reform in Africa

In many parts of Africa, the last two decades have been characterized by debates as to the purpose and direction of land reform, the appointment of commissions of inquiry into land matters, the formulation of national land policies and ultimately by the enactment of new land laws. In short, this has been the age not just of land reform but of land law reform. We have reached an important historical juncture: many countries – among them Eritrea, Ethiopia, Rwanda, Tanzania, Uganda, Malawi, Zambia, Mozambique, South Africa and Namibia – are now considering the implications of the new legislative changes in land relations with which they are faced. The main thrust of the new legislation is to liberalize land tenure and to facilitate the creation of markets in land.

My aim in this book is to explore the politics of land reform in Africa and, in particular, to understand the recent revival of interest in the role of law to bring about development. I seek to identify the elements of a network of African land law reform and to explore the ways in which the network is created and sustained. This network is made up of significant groups whose interests are translated into issues of land law reform. As I show, international financial institutions such as the World Bank, international donors such as the British Department for International Development, African governments, legislators, non-governmental organizations, legal consultants, commercial lenders and the judiciary have all been important actors over the past two decades. Their concerns have been translated into issues of land law reform.

Altering land relations

In his address to the British Labour Party in 2002, former US President Bill Clinton gave the following account of a recent African tour:

I have just come here from a trip to Africa which provided me with all kinds of fresh evidence of the importance of politics ... In Ghana ... a new President is working with a great Peruvian economist, Hernando de Soto, to bring the assets of poor people in to the legal system so they can be collateral for loans.

His comments are a reminder that, out of office, Clinton remains committed to the neo-liberal agenda pursued by his administration, as evidenced by the coming into being of the North American Free Trade Agreement and the establishment of the World Trade Organization. As 'World President of the Third Way' his words were designed to convey his commitment to inclusion: as long as poor people remain outside the legal system they are not able to participate in the free market. The thrust of Clinton's words was that although Ghana's citizens are poor they might be brought with some guidance to perceive their only asset, their land, as good collateral for loans. Indeed, he has described de Soto's work as 'the most promising anti-poverty initiative in the world'.

De Soto's project, as elaborated in his enticingly entitled book, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, has met with considerable interest from international financial institutions and bilateral donors. For this reason, it is important to set out the main contours of de Soto's argument here. According to de Soto, it is the lack of formalized property rights which explains the failure of non-western countries (the 'everywhere else' of the book's subtitle) to develop. It is not that the poor do not have assets. Indeed, we are told that 'the entrepreneurial ingenuity of the poor has created wealth on a vast scale'. The problem, however, is that 'they hold these resources in defective forms'. To take one example: 'houses built on land whose ownership rights are not adequately recorded'.

The solution advocated by de Soto reserves a central role for the law. His programme advocates legal solutions which entail bringing what are described as the assets of the poor into the legal system. This would entail submitting to the process of 'representation', to the process, that is, of registration and titling. When land, for example, is 'represented in a property document', it is enabled to lead 'a parallel life alongside [its] material existence. [It] can be used as collateral for loans.' This is the cause of wealth in 'the West' where there is 'an implicit legal infrastructure hidden deep within their property systems – of which ownership is but the tip of the iceberg. The rest of the iceberg is an intricate man-made process that can transform assets and labour into capital.'

De Soto argues that research conducted by his Institute for Liberty and Democracy has estimated that the poor in developing countries own some 9.3 trillion dollars in assets to which they nevertheless do not have title. As a result, in confronting the problems of developing countries 'we shouldn't just focus on the macroeconomic side of the formula: stable money, fiscal equilibrium, and privatisation. The core of the capitalist system as I understand it, is that it is essentially a legal property system.' For de Soto, 'law is the instrument that fixes and realises capital'. The law plays a central role because 'assets need a formal property system to produce significant surplus value'. De Soto's project is summed up in the observation that: 'It is the property system that draws out the abstract potential from buildings and fixes it in representations that allow us to go beyond passively using the buildings only as shelters.' As I show below, de Soto's approach to land is echoed in recent documents of the World Bank in which land that is used 'merely as shelter' rather than a source of capital is similarly deprecated.

De Soto's work has met with widespread approval among policy-makers as I show in Chapter 3. Clinton's endorsement of his work was followed by high-level meetings in London between de Soto and members of the British government. His programme is thought to have had a considerable influence on thinking on land issues at the UK's Department for International Development. It is also certain that other African countries will be studying de Soto's project in Ghana. To aid this process and in order to disseminate his ideas on the formalization of property rights, de Soto has created the Foundation for Building the Capital of the Poor in Accra. One of the stated objectives of the Foundation is 'to establish a regional training centre ... for the benefit of other countries interested in the property reform programme'. Awareness of de Soto's project is spreading. The United Nations Development Programme (UNDP) has given its support to the quest to formalize land rights. Its resident representative in Ghana has sought to emphasize the broad political relevance of property rights, stating that they constitute a governance issue and that their acquisition can 'transform the ordinary folk into a potentially active economic agent, indeed a wealth creator, we are talking about the direct link between governance and wealth creation and poverty reduction.' Voicing his support for de Soto, Ghana's President Kufuor hailed the transformation of land into 'bankable property' which would give holders of land titles access to credit: 'this could prove the vital part of the missing link that might help generate the prosperity that we all yearn for.'

By the time of Clinton's visit to Africa, the World Bank was already working on the process of reviewing its global involvement in lending in the land sector. I discuss the role of the World Bank in promoting land law reform in Chapter 3, but a brief summary of its outlook on land relations is provided here. The last review of land issues by the World Bank was carried out in 1975. In 2001, it completed what it described as a 'lessons learned' study which formed the basis of an electronic consultation that year. The following year, the World Bank issued two draft reports on land policy. These reports were projects of the World Bank's Research Department with the collaboration of multilateral and bilateral organizations such as the Department for International Development (DfID); Germany's Gesellschaft für technische Zusammenarbeit (GTZ); and the United States' Agency for International Development (USAID). The draft reports were presented as the culmination of a two-year-long process of review by the Bank of its global involvement in lending in the land sector. As part of the World Bank's consultation process, it presented the first draft at four regional workshops. These workshops were promoted as opportunities to discuss the draft report with, and receive feedback from, civil society groups and other interested parties. The second draft of the report was then released by the World Bank which posted it on the internet and invited comments. It is on the basis of these two consultation periods that the Bank published the final policy research report, entitled Land Policies for Growth and Poverty Reduction, in 2003.

Policy research reports are the most important vehicles which the Bank's researchers can employ to attempt to influence thinking on a particular issue from within the institution. They are generally produced at a rate of only one a year. It can therefore be expected that the final policy research report will be influential in setting the policy agenda over the coming years. However, the World Bank was severely criticized by a number of civil society groups for failing to consult to any meaningful extent on the draft reports. Criticisms which were levelled at the Bank included its reliance on a small number of experts, its failure to invite civil society groups to attend workshops, the exclusion of landless peoples, the failure to circulate the drafts to interested parties, an over-reliance on the internet and the imposition of severe timeframes on the process of consultation. It is worthwhile to quote at length an open letter to the World Bank signed by a number of South African organizations which read:

We hereby express our profound concern about the land policies of the World Bank generally, and in particular, about the current process through which future World Bank land policies are being defined. This process of redefinition will not only be decisive for the future land programmes of the World Bank, but will also have a strong impact on co-operation policies at bilateral and multilateral level and on national agrarian reform policies. According to the information we have received, the World Bank will be organising regional seminars on different continents over the coming months to undertake the formulation and drafting of a 'Land Policy Research Report' ... This document – which is expected to have a wide international impact – will later be redrafted by a small group of experts. The Bank has announced that the process of redefinition will be transparent and will include the participation and consultation of civil society, and the new policies which emerge from this process are supposed to be 'defined with the participation of civil society'. If the above is true, it begs a number of questions, beginning with the question of 'who defines 'civil society'? We further would like to know what mandate such 'civil society' would have to help define a policy that is expected to be carried out by governments? We further note the absence of landless and peasant organisations on the list of invited participants. We believe it is impossible to embark on a 'participatory' process to define land policies without including the peasants' perspective. The presence and role of the few civil society organisations appears to be very limited by the current process. The organisations involved run the risk of being used to legitimate the claim of a 'consultative' process to justify the World Bank policies. We are also concerned about the lack of clarity regarding the manner and extent to which the seminars will influence the final product ... to be drafted by a few experts – in fundamental contradiction to the supposed participatory approach. Finally, even less clarity exists regarding this document's influence on the actual policies of the World Bank.

According to the final policy research report published in 2003, land does more than simply provide a shelter and a means of livelihood. It is also to be understood as 'a main vehicle for investing, accumulating wealth, and transferring it between generations'. Access to land affects incentives to make investments and the ability of the poor to access financial markets. Thus, for the World Bank, land is fundamental not just to poverty reduction but to economic growth. Policies that make it possible to use land as a means to access credit turn it into an economically viable resource resulting in what the Bank terms 'equity benefits'. The ability of households to access credit using their land as collateral has widespread implications on two levels according to the World Bank. First, it affects the household's ability to make indivisible investments and, second, it affects the emergence and working of rural credit markets. From this perspective, economic growth as a whole is held back if the assets of the poor are allowed to remain outside the system of formal credit.

The acquisition of secure tenure rights not only increases investment in land, for example in the form of labour inputs, it is also seen as increasing the supply of credit from formal credit institutions using land as collateral. Although it admits the empirical evidence to support it is scant, the Bank believes that the ability to use land as collateral for raising credit and the existence of a well developed land sales market could enhance social mobility. The emergence of financial markets to parallel and support markets in land is seen as having a beneficial impact on the broader rural economy by raising funds for both agricultural and non-agricultural activities, by providing working capital and by enabling access to credit as insurance. Incomplete credit markets are thus seen as imperfections in wider markets.

This approach to land has been summed up in the characteristically succinct words of The Economist as follows:

Africans find it hard to use what they have to best advantage because they lack secure property rights. Very few can prove that they own their land or their homes, because they do not have title deeds. This matters, because without a reliable system for ascertaining who owns what, assets cannot be used as collateral. In rich countries, if a farmer wants to invest in better seeds or bigger tractors, he can probably borrow the necessary cash using his land as security. If he fails to honour his debt, the bank takes the land. If all does well, however, his easy access to credit allows him to make his land more productive, which in turn increases its worth. Asset-backed lending is a crucial element in the dynamism of advanced capitalist countries. In America, for example, the most common way for an entrepreneur to raise start-up capital is by mortgaging the family home.

Transparently taking its cue from the recently published World Bank global land policy, The Economist argues that the future lies in a transition from peasant subsistence to petty bourgeois entrepreneurship. The Bank's overall advocacy of rural credit markets is summed up in the suggestion that without them 'poor people would fail to get out of poverty °t because they are unproductive or lack skills, but because, due to credit market imperfections, they never get the opportunity to utilise their innate ability'.

Land Policies for Growth and Poverty Reduction is richly suggestive. It brings religious imagery to the business of economics. Land which is unused (or unusable) because it has not been brought into the legal system by registration and titling is described as a dead asset. Africa's entrepreneurial spirit and the innate ability of poor people will only flourish with the liberation of dead capital. The influence of de Soto on the World Bank's thinking is clear: in both its language and its substantive content the report draws on de Soto's work.

It should not surprise us to find that Clinton's support for the formalization of land rights as a means to access credit – which was articulated in the language of poverty reduction to the British Labour Party Conference – is accurately reflected in the World Bank's global land policy document. As Callinicos has pointed out, there is a close relationship between the promotion of neo-liberal economic programmes by US governments and by international financial institutions.

At the global level, the imposition of neo-liberal orthodoxy at least in part reflected a conscious strategy pursued by successful American administrations in order to maintain US hegemony in the post-Cold War era: the very name attached to these policies – the Washington Consensus – is symptomatic of the role played in their implementation by the institutional complex binding together the US treasury, the IMF, and the World Bank.

(Continues...)

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Excerpted from The Politics of Land Reform in Africa by Ambreena Manji. Copyright © 2006 Ambreena Manji. Excerpted by permission of Zed Books Ltd.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Part I: Introduction
The Politics of Land Reform in Africa
Altering Land Relations
The Revival of 'Law and Development'
Structure and Agency in 'Law and Development'
Collateral Damage
Conclusion

Part II: Contemporary Land Reform in Africa

Defining Land Reform
Afrian Land Questions
Chronologies of Land Reform
Conclusion

Part III: Paying for Law: The World Bank and Bilateral Donors

Promoting the Rule of Law
The Role of the World Bank in the Privatisation of Land
The Role of Bilateral Donors
Linking the Global and the Local
The Global Land Reform Network
Conclusion

Part IV: Making Law: Inside the 'Law Laboratory'

The Role of Lawyers
The 'Law Laboratory' in the Network of Land Reform
The Politics of Legal Methodology
Conclusion

Part V: Contesting Law?: 'Gender Progressive' Groups and Rural Movements

Case Studies: Gender Progressive Groups in East Africa
Ideologies and Tactics of Rural Movements
Conclusion

Part VI: The Future of Land Relations

Problems of Implementation
Worsening Gender Relations
The Role of Commercial Lenders and the Judiciary

Conclusion
Index