1 - Introduction: What We Talk About When We Talk About Land

Summary

No part of the law of Kenya has raised stronger emotions over the years than the law relating to land and its administration, and none is of more importance at present. (Ghai and McAuslan 1970: 79)

In many parts of Africa since 1990, the desirability of land reform has been a defining feature of political debates. Debates have raged about the purpose and direction of land reform with citizens calling for change and many governments resistant to calls for land grievances to be addressed. Nonetheless, many African countries have witnessed the appointment of commissions of inquiry into land matters, the formulation of national land policies and ultimately the enactment of new land laws. These countries include Eritrea, Ethiopia, Malawi, Mozambique, Namibia, Rwanda, South Africa, Tanzania, Uganda and Zambia. I have argued elsewhere (Manji 2006) that this has been the age not just of land reform but of land law reform.

The main thrust of land-related legal change has been the liberalisation of land tenure and the facilitation of markets in land. I have shown (Manji 2006, 2015) that international financial institutions such as the World Bank, international donors such as the British Department for International Development, African governments, legislators, non-governmental organisations, legal consultants, commercial lenders, and the judiciary have all played a role in land reform, and that a defining feature of contemporary land reform has been the effective translation of various and often contradictory concerns into land law reform.

At the level of international land policy, the enduring effect of the economist Hernando de Soto's ideas must be recognised. These were elaborated in his book, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else ( de S oto 2 000) w hich s ignificantly shaped the thinking of international financial institutions and bilateral donors. According to de Soto, the lack of formalised property rights accounts for much of the failure of development. According to this viewpoint the poor are not without assets. Indeed their ‘the entrepreneurial ingenuity … has created wealth on a vast scale’ (ibid.: 32). The reason why this has not translated into development is that the poor ‘hold these resources in defective forms’ so that ownership rights to land are not always properly recorded even when investments such as housebuilding have been carried out of it (ibid.).