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May 17th, 2012

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Q7: - 2009/04/15 10:31 GMT Is there a need for tenure reforms in areas with customary tenure?
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Re:Q7: - 2009/04/23 11:29 GMT I think we need to distinguish between old-style customary tenure and (lets call it) neo-customary tenure (newer customary tenure tools).

In the former, it is safe to say that gender equality was/is generally not observed, and democratic principles not upheld. However, in neo-customary tenure, it is possible to uphold gender equality, democatic principles, etc. So perhaps there is not only one answer to the question.

The extent to which a particular customary situation is in line with principles to which we aspire, will determine the extent to which change is required. Certainly, tenure security is desirable for all customary occupants (not only owners, as this may preclude children and others).

We have to start to think more creatively about customary land holding and not simply thow it out in favour of freehold. I believe that the latter fails to consider the land rights of those yet to be born - perhaps customary tenure is closer to protecting these?
God bless Africa, guard her children, guide her leaders, and give her peace
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Re:Q7: - 2009/04/23 18:35 GMT If a customary land tebure is not pro-poor in practice, it deserves to be reformed. Most are not very gender-responsive and that is the aspect that could be reformed. It is all about land!
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Re:Q7: - 2009/04/24 05:20 GMT Yes there is a need for reforms. Land use practices certainly need reforms from one generation to the other so that it responds to the challenges of each era. Some customary land tenure practices are in conflict with the MDGs and without the much needed reforms taking place such land use practices will hinder the actualization of the MDGs in such communities
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Stein Holden

 
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Re:Q7: - 2009/04/24 17:52 GMT There seems to be agreement that there is a need for reforms of customary tenure systems. It would be great if you could provide examples of such systems and possibly how you think these specific customary systems should be reformed. Try to be as concrete as possible.
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Re:Q7: - 2009/04/27 18:03 GMT For instance, in addressing the issue of gender and access to land, there are communities in various parts of Nigeria where women do not have access to land by inheritance as their male counterparts and can only acquire land by direct purchase. This put undue financial pressures on them notwithstanding the fact that they are usually in a less advantaged financial position.

In other communities women can only acquire or use family land through adult male members 'brothers' of the family. Social and domestic conflicts are typical of such patterns

Considering that land under customary tenure patterns still forms the larger expanse of land in most developing countries like Nigeria, and the fact that the subdivision of such lands still follows the traditional male dominated patterns prior to the application for formal title documents, the national land use policy (the Land Use Act) should be reformed to specifically address the issue of gender and access to land.
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Stein Holden

 
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Re:Q7: - 2009/04/27 21:12 GMT Such a reform of the customary tenure system would it e.g. imply;
a) Equal sharing of land among children whether they are boys or girls?
b) The oldest child should inherit the land whether she/he is a girl or boy.
c) The land should be kept by those not marrying out and who take care of the parents when they are old,
d) Other alternatives?
How acceptable would such a change in rules be in the local culture?
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Re:Q7: - 2009/04/29 05:44 GMT According to Nasani Batungi [Land Reform in Uganda: Towards a Harmonised Tenure System, Kampala 2008] 80% + land in Uganda is held under customary tenure. The author cites Obol-Ochola’s reference to customary land rights as signifying a deep relationship between autochthons and land and to Njonjo‘s indication that this relationship expresses both “social and spiritual relations within and across generations.” Here we see the germs of an argument that might view customary and community land in a more positive light. Certainly, in the West, in the rush to accumulate surplus, conceptions about the sanctity of space have long since given way to the commercial and juridical: modern, secular notions have been seen as superior to the customary and very few modern observers have reported the associated cultural impoverishment. Despite these insights, Nasani Batungi argues in favour of a move to freehold tenure (though the gender issue barely registers in his argument).
The Ugandan government has been consulting widely on its proposed land reform and it will be interesting to see its conclusions on customary tenure. As against Nasani Batungi’s, one of the interested consultees, The Land and Equity Movement in Uganda, suggests that women’s rights will best be served by the enforcement and not the abolition of customary principles.
Land reform needs to be conducted for a clear purpose. It is not a substitute for gender reform, though any reform in Uganda must acknowledge the dominant role of women on the land.
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