In practice, property rights in many developing countries reflect a diversity of tenure regimes. Customary regimes based on local traditions, institutions, and power structures such as chiefdoms and family lineages may exist alongside the formal legal tenure system sanctioned by the state. Customary tenure systems have evolved and adapted over time to meet the needs of community members, and they continue to do so in response to modern-day pressures (Elbow et al. 1998:10). This includes the introduction of more individualized property rights arrangements in traditional communal arrangements.
A rural community’s customary tenure system is often composed of several different kinds of tenure, each of which defines different rights and responsibilities for the use of diverse resources. Clear individual or household rights are generally allocated for more or less exclusive use of arable and residential land, while group rights may prevail for use of pastures, forests, mountain areas, waterways, and sacred areas (Rukuni 1999:2).
But customary tenure systems today do not exist independently. They inevitably live in relationship—often uneasily—with modern state-sanctioned tenure systems. The upshot is that in many parts of the developing world, land tenure systems exhibit a dual nature—that is, property rights that are partly individualized and formalized in legal statutes, and partly community-based and grounded in customary practices (Elbow et al. 1998:16).
For example, in many African countries—including the Republic of the Congo, Cote d’Ivoire, Ghana, Mali, and Togo—land markets based on individualized tenure have developed in response to a perceived commercial potential. For instance, in Cote d’Ivoire, immigrants to forest areas “buy” land from the local population in order to produce cash crops (Elbow et al. 1998:10).
Tenure systems are also evolving because of changing patterns in herding versus sedentary agriculture. In parts of Burkina Faso, Mali, Mauritania, and Niger, tenure systems traditionally have been based on overlapping rights to use land. For example, herders might leave their animals on croplands during the dry season, effectively exchanging the soil nutrients in animal manure for the right to graze their animals on crop stubble, while sedentary farmers might grow crops on pasture land during the rainy season. Increasingly, however, cultivators are expanding into herding, and herders into sedentary agriculture. This has led to a breakdown in traditional tenure arrangements, growing tensions between competing groups, and an apparent shift from overlapping rights to exclusive rights over particular land parcels (Elbow et al. 1998:10).
The state frequently adds to these conflicts through changes in national land policies that weaken customary or community-based tenure practices. In Niger, tenure reforms in the 1960s and 1970s abolished the system of “tithe” payments that tenant farmers paid to local chiefs under customary tenure practice and asserted state ownership over all lands. The intent was to give greater land rights to tenant farmers. However, later reforms in the 1980s reasserted the right of traditional chiefs to control land use by allocating pasture and agricultural land. The confusion brought on by these land policies has created conflicts between farmers, pastoralists, and customary chiefs and landowners, and has weakened tenure security for all parties (Bruce et al. 1995:19-21).
The dual nature of land tenure arrangements persists whether national policies explicitly recognize customary tenure systems, ignore them, or actively work to dismantle them. Attempts to completely overturn customary tenure systems and replace them with formalized systems of purely individual property rights have rarely been effective, prompting a shift in approach from replacement to adaptation (Bruce 1998b:81). For instance, in the case of forest land claimed by the state, the state may grant individuals from a community the right to collect medicinal plants or fallen branches for firewood, and local groups might have the right to plant trees, but the state might reserve the right to approve any felling of trees and to collect revenue from timber users (Meinzen-Dick et al. 2004:7). Joint forest management agreements between communities and state governments in India often follow this pattern, recognizing in law certain community use-rights but retaining for the state many of the other prerogatives of property ownership, including ultimate title.
The balance between the two components of dual tenure systems is dynamic and ever-shifting. In general, however, customary systems operate as the de facto allocators of land and natural resources in rural areas, with the rules of such allocation increasingly subject to modification by national policies and institutions and in response to changing economic conditions (Elbow et al. 1998:16-17).
