The Western Sahara Case: Land Reform and Pre-Colonial Land Rights in Namibia

by | Oct 13, 2019 | SADC, SADC 2014/15

The Western Sahara Case: Land Reform and Pre-Colonial Land Rights in Namibia

Authors Dr. Nico Horn

ISSN: 2026-8556
Affiliations: Faculty of Law, University of Namibia
Source: SADC Law Journal, The, 2014/15, p. 96 – 109

Abstract

Article 16 of the Namibian Constitution guarantees the property rights of property owners at the time of independence. However, it does not refer to the long pre-independence practice of disowning indigenous people, a practice which began with the Herrero/Nama genocide during the German/Herero war in 1904. Recent developments in the Mabo case in Australia could give Namibians a tool to have indigenous land rights acknowledged despite the constitutional rights of the present land owners. One may ask what do the small Murray Islands, in the Torres Strait off the Queensland coast, have in common with Namibia? Unlike the bloody German/Herero and Nama wars, no shot was fired when Her Majesty’s administration in Queensland declared the Murray Islands a crown colony. Yet, the two peoples had a common history of submission to a colonial power; and although allowed to remain on their ancestral lands, they were not informed that they had been colonised. The Mabo case, a lawsuit brought by the Meriam people, was instrumental in abandoning one of the oldest justifications for the occupation of inhabited land, the so-called terra nullius rule. The example of the Mabo case provides an opportunity to approach the land reform programme in Namibia from a different perspective, at least in the central and southern regions of the country. The Namibian Constitution guarantees private property rights. The idea that more than one right can exist over land is not unknown to both common law and statutory law in Namibia. The paper will propose a process where several strategies are used to obtain the final goal: a just distribution of land to all the peoples of Namibia in a way that contributes to prosperity and stability.

Seeking a Gender Equitable Customary System of Distributive Justice: The Case of the Lozi of Western Zambia

by | Oct 13, 2019 | SADC, SADC 2014/15

Seeking a Gender Equitable Customary System of Distributive Justice: The Case of the Lozi of Western Zambia

Authors Mulela Margaret Munalula

ISSN: 2026-8556
Affiliations: Associate Professor of Human Rights University of Zambia
Source: SADC Law Journal, The, 2014/15, p. 81 – 95

Abstract

This paper looks at African customary law as a system of distributive justice capable of fulfilling the just distribution of basic goods in state. In this case that good is the right to property (land) and those seeking a fair entitlement to it are women. The aim of the paper is to re-vision customary law to appropriately fulfill its mandate as an inclusive gender sensitive system of justice. The paper is premised on the fact that not only is land a pre-requisite for securing a livelihood, much of it is regulated by customary law. Furthermore, women’s land rights are mostly sanctioned by customary law. And yet the significance of customary law is not reflected in the dual legal system that applies which ranks customary law below state or general law, and thereby renders rather precarious any entitlements to land derived from customary law. If justice is to prevail, customary law should be accorded its rightful status. However that is not the primary concern of this paper. The appropriate recognition of customary law comes only later after customary law has adequately provided for women. Thus its recognition should be earned by its own renewal as a system that is not based on gender hierarchy or a denial of women’s status as persons under the law with a full set of rights and obligations. Thus prior to or through the process of recognition, customary law must pass the test required of a distributive justice system by feminist theory. Lozi (Western Zambia) customary law is used to illustrate this argument: First it reminds the reader that as originally conceived, customary law is a system of law capable of providing for the distribution of basic goods in society. Secondly and more significantly, Lozi customary law shows that whilst it has the potential to serve as a system of distributive justice, its orientation towards gender hierarchy undermines that capacity. Thus what follows is a proposal to move customary land tenure from a system that espouses bilateral traits with a bias towards the father-right to a truly equitable system capable of a gender-just distribution of land rights. In short, the paper is a proposal for effectuating gender justice.

The Role of Traditional Authorities in Land Allocation and Management in Lesotho

by | Oct 13, 2019 | SADC, SADC 2014/15

The Role of Traditional Authorities in Land Allocation and Management in Lesotho

Authors Kananelo E. Mosito KC

ISSN: 2026-8556
Affiliations: Dean, Faculty of Law, National University of Lesotho; President of the Court of Appeal of Lesotho
Source: SADC Law Journal, The, 2014/15, p. 68 – 80

Abstract

This paper examines the role of chiefs in land allocation and management in Lesotho and argues that, the process of the introduction of legal dualism and attempts at unification of the legal system through legislation has not brought about the complete transformation of the role of chiefs in land allocation and management. The fundamental principles of a customary land tenure system still permeate throughout the current land tenure system, with chiefs still performing important functions. The paper suggests that improving Lesotho’s land tenure system will depend on the integration of the customary land practices and how well the Sesotho customary legal practices are harnessed and developed.

Customary Land at Crossroads: Contest for the Control of Customary Land in Zambia

by | Oct 13, 2019 | SADC, SADC 2014/15

Customary Land at Crossroads: Contest for the Control of Customary Land in Zambia

Authors Horman Chitonge

ISSN: 2026-8556
Affiliations: Researcher, Centre for African Studies, University of Cape Town
Source: SADC Law Journal, The, 2014/15, p. 45 – 67

Abstract

Customary land across Africa has come under increasing pressure over the past decade and a half from different angles. Among the factors which account for this growing pressure are population growth, sustained economic growth recorded in most countries over the past 15 years, and urbanisation. For instance in Zambia, the growing demand for land has manifested in the rapid increase of customary land being converted into leasehold tenure by well-resourced Zambians as well as foreign investors. But the practice of converting customary land into leasehold tenure is raising serious questions and concerns about the future of customary land. For some analysts, this is an auspicious moment marking the inevitable transition from communal to individualised land ownership. For example, the Zambian government has been promoting the conversion of customary land into leasehold tenure, arguing that this is the only way to ‘open up’ rural areas to investments, which is expected to bring development to these areas. However, some analysts argue that conversion of customary land into leasehold tenure undermines traditional authorities and the cultures of the Zambian people, as well as the fight against poverty in rural areas. This paper illustrates that while the privatisation of customary land may appear as a genuine attempt by the state to stimulate rural development, this practice is creating a contest for the control of customary land between traditional authorities (who have always been the custodians of customary land) and the state that seeks to extend its control over land resources in Zambia.

Large-Scale Land Investments and Customary Tenure: A Comparative Legal Study of Tanzania and Zambia

by | Oct 13, 2019 | SADC, SADC 2014/15

Large-Scale Land Investments and Customary Tenure: A Comparative Legal Study of Tanzania and Zambia

Authors Margherita Baldarelli

ISSN: 2026-8556
Affiliations: PhD Candidate, School of International Studies, University of Trento (Italy)
Source: SADC Law Journal, The, 2014/15, p. 26 – 44

Abstract

This paper analyses the norms that regulate the allocation of land to investors in Zambia and Tanzania, two members of the Southern African Development Community that in the last decade witnessed a significant increase in the flow of agricultural investments. The aim of this work is to compare the process through which land is allocated to investors by focusing on the alienation from the customary domain, in order to identify similarities and differences between the two countries. The paper argues that, notwithstanding the differences in the statutory framework of Tanzania and Zambia, the shift away from customary rights poses similar challenges to both countries. The reconciliation of development policies with local use rights ought to be addressed, especially when the land use transformations are permanent, as in the cases at study. The paper relies both on primary and secondary sources. After an analysis of the domestic legal sources, it discusses investment practices in order to provide a better understanding of the challenges posed by large-scale land acquisitions in both countries. This work aims to contribute to two broad fields of literature. First of all, it aims to advance knowledge on contemporary processes of large-scale land acquisitions by discussing the legal framework in which they take place. Secondly, it aims to contribute to the literature in comparative law by providing a critical comparison of selected aspects of land law in the countries of the study.

Interplay of the Customary Law of Testacy and Statutory Regulation of Intestacy with Respect to the Transfer of Customary Law Rights in Land in South Africa

by | Oct 13, 2019 | SADC, SADC 2014/15

Interplay of the Customary Law of Testacy and Statutory Regulation of Intestacy with Respect to the Transfer of Customary Law Rights in Land in South Africa

Authors Rebecca E Badejogbin

ISSN: 2026-8556
Affiliations: Doctoral candidate under the NRF Chair in Customary Law, Department of Private Law, University of Cape Town
Source: SADC Law Journal, The, 2014/15, p. 10 – 25

Abstract

Legal pluralism, as a feature of the legal systems in the SADC Region, presents real challenges with respect to the applicable laws to land rights. In South Africa in particular, a challenge exists with respect to the acquisition of land rights through customary testacy. Although customary testacy may not be prominently practiced in the country, its existence is acknowledged. The Interstate Succession Act and the Reform of Customary Law of Succession and Regulation of Related Matters Act have been interpreted as precluding the application of customary law of intestacy in the absence of a statutory will. Testacy as referred to in the laws is defined by the Act to mean statutory testacy. This paper however contends that the testacy capable of precluding the application of statutory intestacy law cannot be restricted to statutory testacy. The paper also contends that under South Africa’s pluralistic legal system, customary law testacy can preclude the application of these statutory provisions regarding intestacy, and determine ownership rights (whether statutory or customary) pertaining to land and its resources. There are however, problems associated with this argument, such as statutory provisions that have the effect of restraining the application of customary testacy. How this is resolved reveals an intriguing interplay of land devolution under customary law, statutory limitations and constitutional influence. This paper is focused on customary testacy on land rights and its resources.