Land Law Reform in Eastern Africa: Traditional or Transformative?: A critical review of 50 years of land law reform in Eastern Africa 1961 - 2011

282 Pages·2013·2.62 MB·English

Land Law Reform in Eastern Africa:
Traditional or Transformative?
Land Law Reform in Eastern Africa reviews development and changes in
the statutory land laws of seven countries in Eastern Africa over the period
1961–2011. The book is divided into two parts. Part I sets up the conceptual
framework for consideration of the reforms, and pursues a contrast between
transformational and traditional developments; where the former aim at
change designed to ensure social justice in land laws, and the latter aim to
continue the overall thrust of colonial approaches to land laws and land
administration. Part II provides an in-depth and critical survey of the land law
reforms introduced into each country during the era of land law reform which
commenced around 1990. The overall effect of the reforms has, Patrick
McAuslan argues, been traditional: it was colonial policy to move towards land
markets, individualisation of land tenure and the demise of customary tenure,
all of which characterise the post-1990 reforms. The culmination of over
50 years of working in this area, Land Law Reform in Eastern Africa will be
invaluable reading for scholars of land law, and of law and development more
generally.
Patrick McAuslan MBE is Professor of Law at Birkbeck College, University
of London.
Law, development and globalization
Series Editor: Julio Faundez
University of Warwick
During the past decades, a substantial transformation of law and legal
institutions in developing countries has taken place. Whether prompted by
market-based policies or the international human rights movement, by the
relentless advance of the process of globalization or the successive waves of
democratization, no area of law has been left untouched. The aim of this series
is to promote cross-disciplinary dialogue and co-operation among scholars and
development practitioners interested in understanding the theoretical and
practical implications of the momentous legal changes taking place in
developing countries.
Titles in the series:
State Violence and Human Rights: State Offi cials in the South
Andrew M. Jefferson and Steffen Jensen (eds)
The Political Economy of Government Auditing: Financial
Governance and the Rule of Law in Latin America and Beyond
Carlos Santiso
Global Perspectives on the Rule of Law
James J. Heckman, Robert L. Nelson and Lee Cabatingan (eds)
Marginalized Communities and Access to Justice
Yash Ghai and Jill Cottrell (eds)
Law in the Pursuit of Development: Principles into Practice?
Amanda Perry-Kessaris (ed.)
Governance Through Development: Poverty Reduction Strategies
and the Disciplining of Third World States
Celine Tan
Lawyers and the Rule of Law in an Era of Globalization
Yves Dezalay and Bryant Garth (eds)
Policing and Human Rights: The Meaning of Violence and Justice in
the Everyday Policing of Johannesburg
Julia Hornberger
Lawyers and the Construction of Transnational Justice
Yves Dezalay and Bryant Garth (eds)
Forthcoming titles in the series:
Social Movements, Law and the Politics of Land Reform
George Meszaros
From the Global to the Local, How International Rights Reach
Bangladesh’s Children
Andrea Schapper
Gender, Justice and Legal Pluralities: Latin American and African
Perspectives
Rachel Sieder and John McNeish
Justice and Security Reform: Development Agencies and Informal
Institutions in Sierra Leone
Lisa Denney
Multinational Integration, Cultural Identity and Regional Self-
Government, Comparative Experiences for Tibet
Roberto Toniatti and Jens Woelk
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Land Law Reform in
Eastern Africa: Traditional
or Transformative?
A critical review of 50 years of
land law reform in Eastern
Africa 1961–2011
Patrick McAuslan
First published 2013
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2013 Patrick McAuslan
The right of Patrick McAuslan to be identifi ed as author of this work has been
asserted by him in accordance with sections 77 and 78 of the Copyright, Designs
and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now known
or hereafter invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in writing from the
publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identifi cation and explanation without intent to
infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
McAuslan, Patrick.
Land Law Reform in Eastern Africa, traditional or transformative? : a critical
review of 50 years of land law reform in Eastern Africa,1961–2011 / Patrick
McAuslan.
pages cm.—(Law, development, and globalization)
Summary: “Introduction: The conceptual framework of the paper;
PART 1: From c.1961 to c.1990:Chapter 1: An overview of the land laws
at independence; Chapter 2: 1961–c.1990: The lack of any land reform;
Chapter 3: Two case studies from this era; PART 2: The era of land law reform
c.1990 onwards; Chapter 4: The global intellectual climate for land law
reform; Chapter 5: Zanzibar; Chapter 6: Mozambique; Chapter 7: Uganda;
Chapter 8: Tanzania; Chapter 9: Somaliland; Chapter 10: Rwanda; Chapter 11:
Kenya; Chapter 12: Urban planning law reform in the region; Chapter 13:
Gender and land law in the region; Chapter 14: Transformational, traditional or
political: the reforms assessed; Appendix; Table of principal land laws
1961–2012; References”—Provided by publisher.
Includes bibliographical references and index.
ISBN 978-0-415-83143-7 (hardback) — ISBN 978-0-203-49186-7 (ebk)
1. Land reform—Law and legislation—Africa, Eastern—History. 2. Land
tenure—Law and legislation—Africa, Eastern—History. 3. Customary law—
Africa, Eastern—History. I. Title.
KQC672.M33 2013
346.67604'409045—dc23
2013011312
ISBN 978-0-415-83143-7 (hbk)
ISBN 978-0-203-49186-7 (ebk)
Typeset in Garamond
by Keystroke, Station Road, Codsall, Wolverhampton
Contents
Preface ix
Introduction 1
The conceptual framework of the book 3
1. The transformative approach 9
2. The traditional approach 12
PART I
The position at independence 17
1 A survey of the land laws 19
1.1 Kenya 19
1.2 Tanzania 20
1.3 Zanzibar 22
1.4 Uganda 25
1.5 Rwanda 28
1.6 Mozambique 30
1.7 Somaliland 34
2 The lack of any drive for land reform 1961–c.1990 42
3 Two case studies from this era 46
PART II
The era of land law reform c.1990 onwards 57
4 The global intellectual climate for land law reform 59
5 Zanzibar 66
viii Land law reform in Eastern Africa: traditional or transformative?
6 Mozambique 74
7 Uganda 83
8 Tanzania 96
9 Somaliland 117
10 Rwanda 127
11 Kenya 138
12 Urban planning law reform: a regional overview 161
13 Gender and land law reform 199
14 Transformational, traditional or political: an overview
of the reforms 227
Appendix: Principal land laws enacted in states since 1961 241
Bibliography 250
Index 262
Preface
This book started its life as a response to a request from John Kabudi, the then
Dean of the law school in the University of Dar es Salaam, to give a paper on
teaching and research on land and natural resource law in Africa at a conference
to celebrate the 50th anniversary of the establishment of the then faculty of
law of the University College of Dar es Salaam in September 1961, of which
I was one of the three founder members. I demurred to that request as I did
not and do not know enough about the subject from an Africa-wide perspective.
I offered instead a paper on land law reform in Eastern Africa over the 50 years
of the operation of the law school, which more or less coincided with the
period of time I have been working on the subject of land law within the
region. I assumed that the paper would be fairly short but as I began to pull
together the information needed to write it, I realised that I had taken on a
major commitment. This book is the result.
I began my involvement with land law in East Africa in late 1965 purely
and literally by accident. The late Dean, Professor A. B. Weston was teaching
land law and suffered a horrifi c car accident which put him in hospital for
many weeks. I volunteered to take over the course. I was due to leave Dar to
take up a post as lecturer in law at LSE in December 1965 but the then
convenor of the law department, Professor Ash Wheatcroft, and the then
Director of the school, Sir Sydney Caine, the ex-Vice Chancellor of the
University of Malaya, agreed that, in the circumstances, I could stay on in
Dar until the end of the university’s then academic year to complete the
teaching of the course on land law. At the end of that academic year, in April
1966 the law faculty mounted a seminar on Law and Social Change in
East Africa to which I contributed a paper on the control of land and
agricultural development in Kenya and Tanzania – my fi rst published venture
into the fi eld.1
1 McAuslan, P. (1967) ‘Control of Land and Agricultural Development in Kenya and
Tanzania’, in Sawyerr, G.F.A. (ed.) East African Law and Social Change, Contemporary African
Monographs Series No.6, Nairobi, East African Institute of Social and Cultural Affairs,
172–257.