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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 PDF

282 Pages·2013·2.62 MB·English
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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 This page intentionally left blank 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.

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