Thursday, June 10, 2010
PUBLICATION: Whose land are you giving away, Mr. President?
Independent Land Tenure Specialist Liz Alden Wily writes:
Using Africa as example, this paper challenges the tenure grounds upon which third world governments are leasing land to foreign investors. It argues that most leased lands are ambivalently the property or right of governments to lease or alienate. The main basis of argument is that customary property rights have rarely been formally extinguished. Presumption by governments that this is unnecessary on grounds that the land is unowned or that customary land interests do not amount to property are egregiously flawed in historical and current reality. Even where customary ownership has been lawfully superseded by state ownership, the procedures followed have been
constitutionally questionable in most domestic laws and in international human rights law as necessarily encompassing land rights in agrarian societies.
There are also practical concerns of development and security soundness. With the exception of arrangements whereby farmers are directly contracted by investors, lazy, backward-looking approaches are being tolerated at the very time when felt gaps between rich and poor and state-people conflict makes an inclusive approach to natural asset-based capitalist transformation imperative. It is nonsensical for developing economies to once again miss the opportunity to equitably engage the majority rural poor as shareholders in agrarian enterprise (presuming this enterprise to be viable). While fault lies equally with the international aid and commerce community and with host governments which are putting their citizens’ lands in the global market place without their consent, the latter, not investors, are the land grabbers.
Codes of conduct and international trading regulation are insufficient brakes. More fundamental alteration is required in the identity of lessor and accordingly in the rights and duties of host governments. Remedy lies in accelerated domestic and international legal acknowledgement that customary and other longstanding unregistered land tenancy amounts to a real property interest, registered or not. This must be inclusive of collectively owned estates, a main casualty of large-scale leasing. Without this change, majority rural landholders remain little better than squatters on their own land, a condition already wrongfully endured for a century or more. Although some statutes in Africa have made this change, its pursuit is no easy challenge as more widely failing reformism demonstrates. While house plots and cultivated lands begin to be more easily secured, millions of hectares historically owned and use by rural populations are still being kept vulnerable to technically legal appropriation and reallocation by governments. While hardly new, the current wave of state-tostate backed leasing hardens an already dangerous dichotomy between the interests of governments and their people.
This reflects a thornier problem underwriting this issue; that tenure reforms and the democratizing trends within which they are nested continue to fail to challenge the embedded neo-patrimonialism upon which state-people relations are built in pre-open order societies (North et al., 2009) such as still dominate the agrarian world. In these countries, the rent-seeking marriage of political, traditional, and economic elites is so solidly embedded that there is little incentive for the kind of equitable participation which new generation capitalist transformation demands. Instead, in not grasping the nettle, governments are putting themselves in position for strife and civil war to eventually coerce this. In going along with the status quo the international community and investors share responsibility for this rising risk.