An important element in legislation is the distribution of land ownership: Who formally owns the land determines – from a legal perspective – who manages and controls the land.
This article discusses the issue of land tenure and its impact on land-use, and management of natural resources in Sudan, Kenya and Tanzania as part of the Greater Horn of Africa Region (Sudan, Eritrea, Djibouti, Ethiopia, Somalia, Uganda, Rwanda, Burundi, Kenya and Tanzania) (Fig. 1). Before delving into the specific issues regarding land tenure and forest resource management in the selected countries, let us define certain relevant terminologies and explain concepts.
The concept of tenure describes the rights which different community members may have with regard to the access to and ownership of land and tree resources. Rights denote claims enforceable with the support of law, custom or convention. Access signifies the ability to benefit from things – where ability is broader than right and is evidenced by the fact or act of benefiting.
Land tenure denotes the methods, by which individuals or groups acquire, hold, transfer or transmit property rights in land. Property rights denote the right to the flow of benefits from a thing. Property rights may include a variety of different rights (e.g. to use, to transfer, to build on and to mine) commonly referred to as a ‘bundle of rights’.
Tree tenure refers to the bundle of rights which people may have with respect to the utilization and control of tree utilization. In this article, leasehold is defined as tenure for a specified period for payment of rent, conferred by the owner, whether state or private.
Security of land tenure is important for adoption of tree-based farming systems because of the long term nature of trees. Consequently, the following conditions are needed for adoption: Access to land on which the farmer has the right to plant trees; rights over trees must be sufficient to justify the effort of planting them; and the right to harvest and utilize trees must be exclusive enough to give a return on investment.
If the farmer does not have the security that the land will be his for a longer time, then he will not be interested in activities to improve the soil. As an example, in “agroforestry” − the growing of trees and crops on the same land with or without animals − a farmer will not plant trees if he is not sure he will also be able to harvest since the point of return of investment is more than a year away.
Although tree and land tenure are distinct, each affects the other. On the one hand, planting trees can be used to establish de facto private ownership of land. On the other hand, the right to land also affects the right to trees.
Where private rights to land are strong, the strength of a household’s or individual’s right to trees may depend on the strength of their right to the land. In this case, land owners are relatively advantaged, while those with temporary or weak claims to land may be relatively disadvantaged. But, where land tenure is communal and tree rights are strong, it appears that tree planters are advantaged in their right to trees. This is particularly so in the case of shifting cultivation.
This article provides an overview of the land tenure systems, forest resource management and the role of the state in land-use regulation in the Sudan, Kenya and Tanzania. It concludes with some suggestions for appropriate land tenure and land-use policies which define property rights in a way that incorporates the conservation ethic.
Sudan, with a population of 41 million (2009) covers a total area of approximately 2.5 million square kilometers. Majority of this country lies in arid, used primarily by pastoralists.
The country’s legislation in 1970 limited private ownership to the riparian Northern Sudan, where ownership of land had earlier been registered. The government owned all other land. The government makes land available for development projects and other agricultural schemes through a leasehold tenure system.
In the later part of the 1980s, much of the land used for pasture and for subsistence cultivation was communally owned under customary land laws that varied somewhat by location but followed a broadly similar pattern. With respect to agricultural communities, the right to cultivate an area of unused land became vested in the individual who cleared it for use. The rights to such land could be passed on to heirs, but ordinarily the land could not be sold or otherwise disposed of.
In 1905, the colonial administration decreed a Land Settlement Ordinance, with a provision that “waste, forest and unoccupied land shall be considered government’s property until otherwise proved.” This Ordinance was succeeded in 1925 by the Land Settlement and Registration Ordinance, which performed the same functions.
Land was registered in freehold in most major urban areas in Sudan, but it was practically impossible to identify government’s lands in most parts of the country. However, the state usually abstained from meddling in rights of tenants, whether group or individual, in unregistered land.
Studies have shown that Sudan had for a long time had a system of land registration and titling programmes for individuals, enterprises or the government. In 1970, the government of Nimery enacted the Unregistered Land Act which declared that all unregistered land of any kind whatsoever, occupied or unoccupied, belonged to the state and was considered to be registered in the name of the state.
The Local Government Act in 1971 eliminated the Native Authorities and traditional rulers through whom the colonial regime had ruled the Sudan. This being the case, however, land outside key development projects has continued to be administered by traditional authorities owing to the fact that the local government institutions envisioned to replace them were not found effective.
Disputes arising from land rights regarded as use rights are decided in customary or Islamic law courts located all over the country. The main objective of the 1970 legislation was to provide a stronger legal foundation for the use of leaseholds from the state as the tenure for farmers in development projects, and to facilitate the process of land acquisition for such projects.
The state then held ownership in trust for the people, who had customary rights to it. Before the promulgation of the Act, the government had avoided interfering with individual customary rights to unregistered land and in the late 1980s it again adhered to this policy.
In an effort to stem the deforestation in the Sudan, several initiatives have been undertaken at the state and national levels. One response was to designate certain areas of land as natural forest reserves under government control or responsibility of the Forests National Corporation (FNC).
This organization was thought to be the one best equipped to develop and implement multiple-use, sustained yield forest management practices, that could address the often conflicting demands for forest products and services. Major objectives of the FNC were also the production of industrial timber and the maintenance of protection forests.
A common consensus was that through the provision of raw material for industrial purposes, forestry would contribute to economic development as these industries would create new employment and income opportunities, although the forest-related needs were mostly considered to be subordinated to other national interests. Consequently, forest services often considered rural people as a threat to forest protection and assumed a territorial and policing role.
Results of Glover’s recent study in Gedaref show that while the government did in some cases lease land to local communities to cultivate their crops, e.g., as seen in the system of collaborative reserve farming in Elrawashda, these good intentions were often subverted to serve the interest of more powerful groups.
However, there are also success stories emerging from experience in other parts of the Sudan in relation to benefits and approaches to decentralization of ownership and control of forest resources. An example can be cited of the gum arabic gardens of North Kordofan State which demonstrates the importance of a symbiosis between farmers and local communities who own and manage the gum arabic woodlands, and the government which provides extension support and markets the gum.
|Arable and Permanent cultivation||12.98||4.52||3.50|
|Agricultural population/Arable HA||1.61||4.42||6.21|
Kenya covers a total area of 582,650 square kilometers (sq. km.) with land covering 569, 250 sq. km. and water 13,400 sq. km. It has a population of approximately 39 million residents, with an estimated growth rate between 3.9 and 4.1 percent (one of the highest growth rates in the world). While the majority of its population remain farmers, only about 20 percent of its land is suitable for cultivation. Kenya thus has an extremely dense agricultural population of 4.5 per arable hectare.
The Kenyan legal systems classified land tenure systems in Kenya into three basic categories, namely: private, communal or customary, and public or state. These various categories are further discussed in the following paragraphs.
The private tenure property type is characterized by the absolute proprietorship of an individual or a legal entity over a given parcel of land, with freehold tenure covering about 6 per cent of Kenya’s land area in 1990 (Table 1). This absolute control conferred on individuals and other legal entities is established by the Registered Land Act as a separate land tenure category and implicitly subject to superior rights (radical title) vested in the state.
This absolute proprietorship allows proprietors the power to single-handedly decide the use to which their land can be put. This means an individual farmer can hinder the development and management of forest resources, if he or she declines to take part in tree planting planned for any reason.
This being the case, however, the state holds the power to control the use of private land, if such regulation is believed to be in the interest of land preservation or development. It is important to note that incentives to land owners may prove more effective than legal sanctions in encouraging the adoption of agroforestry and afforestation.
Under the customary tenure system, rights are based on communal ownership of land where land is assigned to a clearly defined group of individuals or users. These users may belong to a clan or ethnic community. Resource utilization by this group is regulated by the rules and guidelines based on the traditional form of this regime, handed down from generation to generation.
In property jurisprudence, this property regime is referred to as customary tenure or communal land tenure. In theory this regime is no longer significant with the advent of land adjudication and consolidation programmes. Land adjudication refers to the process through which existing rights in a particular parcel of land are finally and authoritatively determined. The property regimes may, however, be functional at the local levels; it is significant here because it is linked to the application of indigenous knowledge to the management of natural resources.
As a distinct legal category, the communal tenure regime applies only to two categories of land areas. The first are Trust Lands, formerly known as Native Trust Land Areas or Native Reserves, where the land has not been adjudicated and consolidated. Trust land is the most extensive tenure category which is awaiting smallholder registration, accounting for 64 percent (Table 1) of Kenya’s area in 1990.
The second category involves the aggregation of all pieces of land over which each individual or group has rights and the allocation to the individual or group of a single consolidated piece approximately equivalent to several units, that is, the process of consolidation.
Land registration in the Native Trust Land Areas or Native Reserves (currently known as Trust Land and vested in the respective county council before registration) started in 1956 in Central Province. Presently, most of the agricultural areas with high potential, such as Central and Western Provinces (except for Busia District) and Kericho, Uasin Gishu, Embu, Meru and Kissi districts, have been completely adjudicated and registered.
With regard to the areas with lower agricultural potential, mostly arid and semi-arid parts of the country where the main land-use is pastoralism, a different registration system was introduced in 1968. This was the system of the Group Representatives Act.
Here, the registration of group ranches was regarded as a compromise between individual ownership and the need for access to wider resources in the drylands. Rights to utilize the resources are distributed equitably among all group members who also have equal and guaranteed access to the resource in question. The management of the resource is entrusted in a team of representatives acting on behalf of the collective whole.
In Kenya, land adjudication has been an important process in the conversion of land held under customary tenure into individual holdings. Although the process has given rise to the registration of numerous land parcels, its potential has not been fully exploited. It is worth mentioning that due to incomplete land registers, pending adjudication appeals or absence of the land adjudication exercise altogether, vast areas of Kenya remain un-adjudicated.
The public or state land tenure system describes a tenure type in which the government is a private landowner. In Kenya, this system originated from the Crown Lands Ordinance of 1902, which declared that all “waste and unoccupied land” in the protectorate was “crown land.”
A dual society was established in this period where the colonial government set aside 3.1 million hectares in Kenya for 3,600 European farmers. A consequent result was the establishment of “scheduled” areas, known as the White Highlands, and the “non-scheduled” or African areas. Public tenure in the former Crown Lands accounted for 20 percent of Kenya’s area in 1990 (Table 1) and includes national parks, forest land, unalienated and alienated land.
The system of public land tenure is embodied in the Government Land Act and has constituted the principal framework used to gazette forests subject to the state’s monopoly rights. Under the Forests Act, vast areas of land may be declared a forest area or a national park by proclamation in the official Kenya Gazette, and by the same mechanism any forest area may be declared as a demarcated forest or a nature reserve.
In legal theory, it can be argued that the important quantum of property rights in land is ultimately a function of the scope of police power. The police power denotes the power of the state to regulate land-use in the public interest, as in the case of management and resource utilization to safeguard the resources. Police power always restricts the freedom of action available to tenurial right-holders. The greater its scope, the longer restricted the scope of individual property rights in land and the wider the chance the state has for implementing sustainable resource management and conservation policies.
As documented, Kenyan land-use legislation reveals a lack of public participation in the decision-making process. Under the current legislation, activities such as grazing, honey gathering, hunting, the taking, damaging or setting fire to any forest produce, staying in the forest overnight, clearing land, and constructing a road or path are strictly prohibited in gazette forests, unless licensed by the state. Unfortunately it has been argued here that the state has proved to be an inefficient custodian of the monopoly rights vested in it.
Examples abound in literature. Textual analysis of participatory forest management points out that the priorities of local people are not primarily directed towards fulfillment of forest- related needs, but rather towards different aspects of rural life. Prevention of local people from entering forest reserves, although one of the purposes of formal government management, usually leads to conflicts between the local people and the forest guards and officers.
The system of state ownership of forest reserves which often marginalizes local management is likely to fail unless it is closely linked to the social context of its operation. Owing to a lack of this linkage, large chunks of forest areas have been excised and converted, either legally or illegally, to agriculture and settlement to meet the needs of adjacent populations.
About 80 percent of the country comprising arid and semi-arid lands suffers from land tenure insecurity, deforestation, and overgrazing that, among other factors, are aggravating the problems of soil fertility depletion. For years the Baringo district, which lies in the northern part of Rift Valley Province in Kenya, has been regarded as one of the most severely degraded areas in Kenya, being variously described as the “agricultural slums of Kenya”, “one of the saddest sights in Kenya”, “an overgrazing endpoint where most of the grass and topsoil has already gone” and “an embarrassment to Kenya”.
This situation worsens, unless measures are taken to improve the use of land and allow farmers to produce food, fodder, firewood and building material on the farm without continuously opening up new lands, which causes deforestation with all its sequels. Against this background, there is a need to consider human issues as part of any proposed ameliorative and management measures. Such views focused national and international attention on Kenya.
It is suggested here that if human pressure on land is not eased, no amount of repression or regulation is likely to be an effective mechanism in an attempt to halt the apparently drastic environmental decline associated with agriculture and livestock, and for conserving and managing our forests. There is a need for policy changes to solve the problems of land/tree tenure and to encourage farmers, to practice tree planting and to participate in the management of the trees.
It is expected that current and future forestry planning will demonstrate a genuine commitment to the felt needs of local communities. However, unless the associated problems of dependency on forests for firewood, landlessness, and lack of alternative economic opportunities amongst communities adjoining forest reserves are solved, the stated objectives of the Forests Act will not materialize.
|Type of tenure||1980||1990||1990 (%)|
|Other government reserves||1,245||1,970||0.3|
|Trust Land (not for registration)||34,965||59,625||10.2|
|Trust Land (for smallholder registration)||425,341||397,366||68.2|
|Not yet registered||398,124||370,087||63.5|
The population of Tanzania is 29 million, of which 22 million depend directly on agriculture. The land area of the country is about 945,000 sq. km. About 5 percent of the land area is cultivated under customary tenure, and 1 percent under commercial agriculture, while 40 percent is in grazing and 25 percent gazetted as reserves or parks.
Tanzania has been classified as a country where land policy is being built on what can be described as the most decentralized and devolved regime of governance in the Greater Horn of Africa: governance is lodged first and foremost at the village level.
Textual analysis indicate that two of Africa’s most serious attempts to collectivist solutions took place in this country during the 1960s and 1970s in the context of programmes of ujamaa (communal farming) and vijiji (villagization). Also, an initial attempt to consolidate the control of local people over their land was outlined in the 1983 National Agricultural Policy, which launched a programme of village titling. The new Land Policy (1995) and new Land Law (1999) have now restructured the tenure environment of Tanzania and with it, the nature and expression of rights at the local level.
The village remains central in the new land policy and legal framework and is in fact strengthened. The links between the village and its land have been given a clear and strong legal foundation by the introduction into the Law of the “village land” as one of the three land management categories.
Village land denotes land area within margins of villages, demarcated according to the previous legislation or agreements on land held between village councils entrusted with jurisdiction over that land, which the villagers have regularly occupied and used as village land in a period of 12 years prior to 1999. The other two are general and reserved land. General land refers to land that is unreserved and not a village land (Land Act No. 4, 1999), while reserved land describes land that is designated in line with specific laws, e.g., the Forest Act and National Parks Act (Village Land Act No. 5, 1999).
In Tanzania, local authorities such as chiefs and elected village elders form the village assembly which governs the village. Village council members are granted executive powers and are designated as lawful land managers in areas where forests not under reservation and woodlands are situated adjacent to village lands. The village council acts as a trustee of the villagers for parts of their local environment for common use and natural resource management.
By-laws could be enacted by village councils and these laws can play a role in enforcing local rules and regulations. According to the Local Government Act 1982, by-laws need to be endorsed and approved by district councils.
A study carried out by Wily and Mbaya found that village forests in Tanzania are more effective in bringing about a real community involvement in forest management compared to those in other countries where forests are still owned by the state. They also concluded that while community benefits and rights may be more secure, it is not certain as to whether the conservation status has been maintained or improved.
It could be concluded that the government of Sudan has utilized a leasehold regime for most of the land in project areas, both in irrigated and rain-fed mechanized farming. Sudan has provided some level of legal recognition to customary and state land tenure.
Only Kenya has consistently adopted a policy of tenure of individualization and privatization, but Tanzania has abolished private ownership and sought to replace indigenous tenure systems with alternative, community-based tenure forms.
Indeed, the analysis carried out in this study has shown very serious implementation problems in a variety of policy areas especially with regard to existing land-use arrangements and forest resource management. Land laws and policies must be adopted with a meaningful civil society participation in order to effectively address the land question in the Greater Horn of Africa.
Besides developing appropriate policies and laws, it is crucial to ensure the correct implementation of these instruments in order to be able to intervene in land relations at local level. Any management strategy must be sensitive to the social problems of the surrounding communities, in particular their dependence on forest resources.
Dr. Sc. (Agriculture & Forestry); LLD Candidate.
Faculty of Law, P.O. Box 4, FI-00014 University of Helsinki, Finland.
Bruce, J. W. (1998). Country profiles of land tenure: Africa, 1996. Research Paper No. 130. Land Tenure Center, University of Wisconsin-Madison.
Glover, E. K. (2005). Tropical dryland rehabilitation: Case study on participatory forest management in Gedaref, Sudan. Doctoral Dissertation, Viikki Tropical resources Institute. Helsinki: University of Helsinki.
Glover, E. K. (2010). Approaches to Halt and Reverse Land Degradation in Kenya: Agroforestry Development and Environmental Sustainability. Germany: VDM Verlag Müller.
Glover, Edinam & Olavi Luukkanen & Elnour Elsiddig (2010). Community-based forest management strategies for increasing forest cover in Gedaref, Sudan. Sudan Journal of Desertification Research 2: 86−104.
Glover, Edinam & Yomo Lawrence (2010). Agroforestry Practices among Smallholder Farmers of Southern Sudan: Sustainable Land-use, Agrobiodiversity and Food Security. Germany: VDM Verlag Müller.
Wily, Liz & Peter Dewees (2001). From users to custodians: Changing relations between people and the state in forest management in Tanzania. Environment and Social Development Unit, Africa Region, World Bank.
Wily, Liz & Sue Mbaya (2001). Land, people and forests in Eastern and Southern Africa at the beginning of the 21st Century. The impact of land relations on the role of communities in forest future. IUCN Eastern Africa Programme, Nairobi, Kenya.