Formalisation of Land Rights in Africa: Impact on Security of Land Tenure

Introduction

Millions of people live or have some rights or form of access to land that they have no legal title/rights over. Security of land rights is important for safety, security of the household, and care of vulnerable sections of society, such as children, elderly and women (Ubink et al, 2009, p.7). The absence of security results in diminished socio-economic security of the individual and the household. Furthermore, people lack the incentive to invest in their lands or properties when there is no tenure security. This leads to lower agricultural productivity, lower housing and a restricted land market, as transactions are fairly limited without formal documents (Wily, 2003, p.33). People cannot avail of credit against collateral upon which they have no tenure security. The formalisation of land rights was argued as a possible solution to tenure insecurity.

Traditionally, governments have led government formalisation programmes to provide individual titling and registration. This is in line with the classical theory of property rights (Assies, 2003). This is because of the assumption that individualised private property is the most secure form of property, which can improve access to credit through collateralisation and facilitate investments in the land (Loehr, 2012, p.837). These actions have been supported by Western government-backed development aid institutions, such as the IMF and World Bank, as well as some economists and scholars (Selod, 2012). While some cases of titling and registration have produced desired results, formalisation programmes have either shown no significant relationship with increased tenure security, credit availability or productivity, or have had a negative impact on them (Deininger, 2003, pp.469-84).

This research focuses on the relationship between formalisation programmes and their effect on tenure security. There is indeed an immense diversity in variables on either side of this relationship: formalisation programmes vary based on particularities, modalities, locations, communities and colonial/national histories, etc., and tenure security as the term raises questions like whose tenure security, tenure security of what kind of property, real and perceived aspects of ‘security’ etc. Therefore, it is imperative to define the scope of this article. First of all, this research is focused on the impact of formalisation programs as a developmental strategy. It will refer to formalisation programs undertaken as post-colonial measures in developing countries. Colonial histories are discussed to the extent that they are relevant to contextualise post-colonial actions. Furthermore, the aim of this research is not to question the core motivation behind formalisation policies. These include social justice and poverty alleviation, natural resource allocation and management (Putzel, 2015). It looks at formalisation programmes ipso facto. It hopes to better understand the role of formalisation in land policies, so that it can identify the appropriate conditions for enhancing tenure security.

Given the broad scope of countries and socio-legal contexts, the first part lays down the broad debate around formalisation that has developed over the last decades. This includes the principle-based differences between market-driven neoliberal programmes premised on Peruvian economist Hernando de Soto’s ideas of property versus critiques against his theory from economic, sociological and human rights spheres. In addition, this part includes a brief overview of the history of formalisation and the different approaches to it in different countries. The next part lays out a broad introduction to tenure security, its meaning and dimensions, and describes the visions different governments have had while implementing formalisation schemes.