Reconstructing the African commons

Abstract

Eastern and Southern Africa is seeing a wave of land law reform. While the motives may be more political than developmental, the extent of real change ultimately possibly limited, and realization of new law in practice another prospect altogether, certain striking positive changes are appearing. This paper focuses upon one of the more important to the majority of rural citizens in the region--the status of their common lands. What is occurring is this: after a century of suppression and demise, customary tenure regimes are beginning to find a place in state laws as a perfectly legal way to acquire, hold, and transfer land. In the process, the traditional capacity to hold land in common is acquiring new status and even being supported are constructs of statutory commonhold, a form of tenure which could well compete in the future with individual-centered regimes. The impact of these developments upon rural common property resources is potentially enormous. At least in law, citizens in a growing number of states are finding their unregistered common rights over pasture, forests, woodlands, and wildlife range accorded a security not seen before. This signals a dramatic reversal of fortune for remote rural poor who have seen these commons steadily slip into the hands of the state or be subject to the subdividing pressures of individualization, at least partly in default of viable legal means to retain these properties as local commons. Exploring this legal transformation is the subject of this article.