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Do African Systems of Land Tenure Require A Special Terminology?

Published online by Cambridge University Press:  28 July 2009

Kwamena Bentsi-Enchill
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Expressions Indicating varying degrees of dissatisfaction with systems of land tenure prevailing in sub-Saharan Africa are very common, and the view is widely held that the traditional institutions which govern land rights operate in a manner obstructive to agricultural development. “If enterprise is to be given an opportunity to express itself”, writes Dr. Yudelman in a recent book, “there must be a break with traditional institutions which govern land”.Views of this kind call for decisions regarding the substitution of one system of law for another, or for various kinds of radical reform including the engrafting onto the traditional system of legal expedients and devices proved useful in other systems of law. Such decisions, however, patently require much more than a mere nodding acquaintance with the existing local law, the changes sought to be introduced therein, and their functioning in the systems of law from which they are to be borrowed. Accordingly a need exists for a kind of comparative legal analysis of existing systems of landholding which can throw into relief the real points of weakness that need to be remedied or pruned away, while also indicating the elements that are worthy to be retained, if even only as the stock upon which novel arrangements may be engrafted.

Type
Research Article
Information
Journal of African Law , Volume 9 , Issue 2: SPECIAL NUMBER Customary Law in Contemporary Africa , Summer 1965 , pp. 114 - 139
Copyright
Copyright © School of Oriental and African Studies 1965

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References

2 Yudelman, , Africans on the land (Harvard, 1964), p. 225.CrossRefGoogle Scholar

page 115 note 1 Bohannan, P. J., “‘Land’, ‘Tenure’ and ‘Land Tenure’,“ in African agrarian systems (ed. Biebuyck, , 1963), p. 101.Google Scholar

page 115 note 2 Radcliffe-Brown, , Structure and function in primitive society (1953), pp. 113–114.Google Scholar

page 117 note 1 Brierly, Law of Nations (5th Ed. 1955), p. 150.

page 117 note 2 Howell, A Manual of Nuer Law, (1954) p. 182.

page 118 note 1 Even in communities of the type classified by Fortes and Evans-Pritchard as Class B, namely those lacking specialized governmental machinery, the literature on land tenure indicates identifiable areas of acknowledged jural relations. See, e.g., Fortes. The dynamics of clanship among the Tallensi (1945), pp. 180–181.

page 118 note 2 Hohfeld, Fundamental legal conceptions as applied in judicial reasoning and other essays, ed. Cook, 1923.

page 118 note 3 Hoebels, , “Three studies in African Law” (1961), 13 Stanford L., Vol. 13, No. 2, 418, 4 (1961).Google Scholar

page 119 note 1 Cf. Hart and Sachs, The legal process: basic problems in the making and application of law (1958), p. 142.

page 119 note 2 Cf., Noyes, The institution of property, p. 290 (1936), “In a frequently quoted passage the philosopher Kant says,‘…if a man were alone in the world he could properly hold or acquire nothing as his own; because between himself, as person, and all other outward objects, as things, there is no relation’. ‘The relation’, says Holland, ‘is between him and other people whom he excludes from the thing’. This is another characteristic of all rights. They are relations, negative or positive, between persons, though they may also exist with reference to things or material objects”.

page 119 note 3 Austin, Lectures on jurisprudence or the philosophy of positive law (3rd edn. 1869), p. 187.

page 120 note 1 Noyes,p. 87.

page 120 note 2 The word tide also can have a harmless but useful place in our shorthand. Recognition that X is the owner of a given interest in a parcel of land is recognition of X's title to that interest. The evidence that proves that X is the owner of such and such an interest is evidence of his title thereto. Title in this sense is another word for ownership in the senses explained above. By extension, title is also used by lawyers for the evidence or documents that establish ownership of a given interest.

page 121 note 1 Nadel, A black Byzantium (1942), p. 14. Also significant is Evans-Pritchard's definition of a Nuer tribe as the largest political segment whose members recognize themselves as a distinct local community and affirm the obligation to combine in warfare against outsiders and who acknowledge the rights of members to compensation for injury: The Nuer (1940), p. 5.

page 121 note 2 Cf. Lowie, “Some aspects of political organization among American aborigines”, 78 J. Royal Anth. Inst. 11; Schapera, Government and politics in tribal societies, 1–2 (1956); Kobben, , “ Land as an object of gain in a non-literate society, etc.”, in African agrarian systems, 248 (ed. Biebuyck, , 1963).Google Scholar

page 122 note 1 Fortes and Eyans-Pritchard regard as stateless, societies “which lack centralized authority, administrative machinery, and constituted judicial institutions-in sort which lack government-and in which there are no sharp divisions of rank, status or wealth”. African political systems (1940), p. 5. The reports regarding land tenure among the Tallensi and the Nuer, however, clearly indicate that these societies which they categorize thus are made up of communities within each of which acknowledged jural relations exist. Such units, no matter how small, are what we are referring to. Here again, the ethnic focus appears to colour the categorization of the appropriate functional unit (see, e.g., p. 118, note 1, ante).

The name “primitive states” which they suggest for the vast class of societies having the requisite centralized government etc. is also open to the objection that the wide differences in their levels of development render valueless as an analytic tool the epithet “primitive”. A passage in Radcliffe-Brown's preface to the book is, we submit, apposite: “to try to distinguish, as Maine and Morgan did, between societies based on kinship (or, more strictly, lineage) and societies based on occupation of a common territory or locality, and to regard the former as more ‘primitive’ than the latter, leads only to confusion”: preface to African political systems, p. xiv.

page 122 note 2 The term “tribe” is also used by many for whole ethnic groups like the Yoruba or the Ibo.

page 122 note 3 Cf., Lloyd's account of the different Yoruba kingdoms in Yoruba land law (1962), pp. 97–276; also the effect of the autocratic powers (in late 19th century) of the Buganda monarch on the pattern of land-holding in Buganda; see, e.g., A. I. Richards in African agrarian systems, pp. 269–70.

page 124 note 1 [921] A.C. 399.

page 124 note 2 Co. Lite 65 a; Challis, Real Property, 5 (Sweet, 3rd ed.).

page 124 note 3 E.g., J. Casner and B. Leach, Cases and Text on Property. (1947), p. 257.

page 125 note 1 In such cases the state has sovereignty or jurisdiction over the territory, but owns only such land as it has acquired for owners within it. The chief usually belongs to a lineage that owns some of the land. Some Ghanaian examples are the Fanti states, Oguaa, Anomaboe and Mankessim, and the Ga Mashi state. Nigerian examples include: Ijebu (Lloyd op. cit., p. 151), and most Ibo “towns” (Obi, The Ibo law of property (1963), p. 45).

page 125 note 2 Casner and Leach, loc. cit.

page 125 note 3 Nor, for most African polities, be it remembered, did this exclude authorized settlement by strangers or guests.

page 125 note 4 M. Fortes, The dynamics of clanship among the Tallensi (1945), p. 178.

page 126 note 1 Cmd. 9475, p. 351, para. 15.

page 126 note 2 To similar effect but with respect to apportioned land is the following comment:

“It would also appear that the approach to the family has not been adequately considered. Travellers in Northern Nigeria have noticed large parcels of 50 acres or more of one crop such as guinea corn or cotton along the roadside. This often leads to assertions that certain farmers cultivate very large acreages. On investigation it is found that the ‘farm’ is being worked by related individuals. In neither case is my previous estimate of four acres per male adult vitiated. In such cases it might again be possible to bring about conditions, by consolidation of holdings, in which modern methods could more easily be introduced, if the head of the family group himself could be sought out and induced to attempt such methods. The possible success of such an approach is indicated again by experience at Shendam where the officer-in-charge formerly used to address public meetings to induce settlers to enter his scheme, the result of which was the entry of social misfits and objectionable characters and a very few who were ambitious. When he sought the heads of sub-clans and induced them to move with the whole of the related group of which he was by long tradition the head, the success was embarrassing and the officer found he had more people than he could handle.” (Baldwin, “Land tenure problems”, in African agrarian systems, ed. Biebuyck (1963), pp. 78–79.

page 126 note 3 Cf., the Communal Land Rights (Vesting in Trustees) Law, W.R. No. 45 of 1958, an interesting attempt to meet this problem in Western Nigeria.

page 127 note 1 Cf., Yudelman, op. cit., p. 14. Contrast White's review of the results of an official inquiry in Northern Rhodesia: “…In general, the sum total of rights which make up the features of African Land Tenure in Northern Rhodesia can only be regarded as equivalent to individual tenure“: African agrarian systems, p. 364.

page 127 note 2 For a useful summary of the position in parts of Tanganyika, see Dobson, “A comparative land tenure of ten Tanganyika tribes”. (1959) 6 J.A.A.

page 127 note 3 Shortage of land in Basutoland, for example, is in part the result of heavy losses of territory to what is now the Republic of South Africa.

page 127 note 4 In a few polities, such as among the Nyakyusa, there is a redistribution of land during each generation. See, e.g., M. Wilson, “Effect on the Xhosa and Nyakyusa of scarcity of land”. In a few others, notably Basutoland and some communities in the Republic of South Africa, and for similar reasons of scarcity, there is a noticeable official attempt (i.e., exercise of sovereign authority) to take land out of the regular inheritance scheme and to accord to the chief a kind of discretion whether or not to allow the family of a deceased allottee to inherit the allotment. This contrasts with the undisturbed position in Bechuanaland Protectorate: see Schapera, Motive land tenure in Bechuanaland Protectorate (1943), pp. 46–47. In others the abundance of land, its poor quality, plus extensive shifting cultivation, make land such a free good as not to attract inheritance rules.

page 129 note 1 Bentsi-Enchill, Ghana Land Law, 231 (1964).

page 130 note 1 Op. cit., p. 181.

page 131 note 2 In a highly instructive passage the Havers Report on the expenses incurred by litigants in the courts of the Gold Coast Colony (1945) listed the following as the principal factors that were causing a multiplicity of suits (page 34, para. 64) (1): Uncertainty as to boundaries between states, divisions of states and of lesser communities within them, and as to the boundaries of families and private individuals.(2) Uncertainty as to title to land generally and as to the estates and interests in land which at law are capable of subsisting and which do in fact at present subsist. (3)Uncertainty as to native customary law generally and particularly in relation to the inheritance of and succession to property both real and personal, and as to succession to property both real and personal, and as to succession to [chiefships]. (4) The absence of proper facilities for credit for cocoa farmers and agricultural farmers generally.

page 131 note 3 See, e.g., Dufour, “Quelques aspects juridiques du probleme foncier”, in African agrarian systems, 176.

page 131 note 4 For a recent statement see S.N.C. Obi, The Ibo law of property (1963), p. 32.

page 131 note 5 See e.g., Agricultural Holdings Act, 1948, s. 13; and rules relating to tenants’ fixtures, trade fixtures, ornamental and domestic fixtures.

page 132 note 1 Sheddick, , Land Tenure in Basutoland (London, 1954), pp. 2, 3.Google Scholar

page 133 note 1 Spiegel, Land tenure policies (1941), pp. 2–3.

page 133 note 2 Ministry of Economic Affairs, Report on an economic survey of Nyasaland, 1958- 1959 (1959) P. 41; quoted by Yudelman, op. cit., 14.

page 133 note 3 * E.g., the McArthur land reforms in Japan after the 2nd World War.

page 134 note 1 See e.g., Rule 7 (7) of the Laws of Lerotholi (1959 publication).“Land allocation for gardens and tree plantations”, etc.: On the death of a person who has been allocated the use of land for the growing of vegetables or tobacco, or for the purpose of planting fruit or other trees, or for residential purposes, the heir, or in the absence of the heir, the dependants of such deceased person shall be entitled to the use of such land so long as he or they continue to dwell thereon.”

page 134 note 2 This is subject to exceptions, especially where the allottee is away to work in the Republic of South Africa and maintains his attachment to his chief in various ways.

page 134 note 3 As my colleagues and I found in a survey of land tenure problems there in December, 1962.

page 134 note 4 Govt. Pub. “What the Land Husbandry Act means to the rural African and to Southern Rhodesia”, 1955, quoted by Garbett in his contribution to African Agrarian Systems, p. 191. See also Tudelman, op. cit., 124.

page 135 note 1 See Nelson, in African agrarian systems, p. 383.

page 135 note 2 Simpson, Report on the registration of titles to land in the Federal Territory of Lagos, 1957.

page 135 note 3 E.g., Hailey, Native Administration in the British African Territories, Part III (1951), p. 225.

page 135 note 1 In Ghana, for example, something approximating to this was instituted for Kumasi city, under the Kumasi Lands Ordinance of 1929 (cap. 145).

page 135 note 2 Quoted in Simpson, op. cit., p. 12.

page 136 note 1 By contrast, the inheritance rules in matrilineal communities in Ghana tend in the opposite direction. There is usually a precept in favour of holding the inheritance of land as one unit in charge of a “successor”.

page 137 note 1 Cf., White, “Factors determining the content of African land-tenure systems in Northern Rhodesia”, in African agrarian systems, p. 365: “The conception that Africans do not sell land cannot in my view be sustained. A sale is merely an outright transfer for valuable consideration in the form of cash; a gift is an outright transfer in which the consideration takes the form of good will between kinsmen or neighbours. Sale is therefore a simple development within a cash economy, and not a new and revolutionary principle, given the type of structure of villages found in Northern Rhodesia.”

page 139 note 1 Bascom, “Some problems of land tenure in contemporary Africa”, in Land Tenure, Proceedings of the International Conference on Land Tenure, Parsons, Penn, and Roup eds., 1951.