Property rights, customary law and ethnic identity in middle Africa

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Occasionally glimpsed in the lurid half-light of war reportage, or promoted in Economist prospectuses and encouraging brochures for the development industry, the societies and states of central Africa are rarely examined for their stable, enduring aspects of rule.

One feature of the local scene, common to several countries in the region, deserves particular note.

great-lakes-map

Mahmood Mamdani, a Ugandan political theorist at Columbia University and Makerere University in Kampala, has described how central and east African states have ‘legally enforced race and ethnicity as two salient political identities’.

Inheriting ‘distinctions crafted in colonial law’, post-independence Uganda, DRC/Zaire, Kenya, Tanzania and Rwanda have locked in ‘a mode of rule that accentuates difference’ based on ascriptive traits: ethnicity, religion, language, putative indigeneity, etc.

Their populations are divided, based on possession of such characteristics, into distinct institutional universes governing their economic entitlements, legal rights and political administration.

On one side sit those subject to customary law, which vests property rights and political authority in ‘traditional’ chiefs and elders, ‘stamped with an ethnic identity’. On the other stand members of those groups denied the rights of custom but granted, if lucky, the protection of civil law.

Around the African Great Lakes, writes René Lemarchand, ‘ranked societies’ have formed. A ‘two-tiered structure of ethnic domination tended to vest power and privilege’ in some identity groups. ‘Political exclusion’, in one form of another, is the fate for the rest.

At its worst, this ‘tiered’ citizenship brings ‘denial of political rights to specific ethnic or ethno-regional communities, most notably the right to vote, organize political parties, freely contest elections and thus become full participants in the political life of their country.’

The durability of these legal and political arrangements, following decolonization, seems to stem from a kind of institutional complementarity between them and the prevailing rules governing ownership of economic resources. Each contributes to the survival of the other.

Jean Ensminger has shown the existence, throughout sub-Saharan Africa, of a single broadly-defined set of property rights wherever there is subsistence farming supplemented by commercial cash crops. (Of course climate, terrain, resource endowments and population density vary widely over this continent-sized region, giving rise to diverse institutions and cultures. Nonetheless the common pattern is clearly observable.)

For any given resource, various property rights are ‘unbundled’ and assigned to distinct parties. None of these individuals or entities has the full bourgeois panoply of exclusive ownership.

Households or individual cultivators have disposition over the use of land and livestock; but inheritance of farm plots and security of tenure is controlled by chiefs and elders within a village or community, and may be allocated and transferred according to lineage or status. Income generated by the assets goes more-or-less undivided to the cultivator, though local notables may take rent and the state is entitled to a share through taxation.

In the more arid zones, with sparser populations, pastoralism or foraging holds sway. In these circumstances, land is a common-pool resource (e.g. involving water sharing and communal rights of way). Its use is governed by a mix of common property rights and open access.

Historically, within farming areas, the pre-existing ownership rights of chiefs and heads of lineages granted them the opportunity to extend their power and wealth under European ‘indirect rule’.

Their hereditary exercise of control rights over economic resources (granting legitimate decision-making authority over access, exclusion, transfer, etc.) allowed them to serve as delegated authorities for the colonial power. They were ideally placed to enforce tax payment. In return for this favour they often received a more complete set of private-property rights over land.

In 1900 the British colonial power struck the Buganda Agreement, in which local chiefs were granted large estates, converting their power to that of landholders over tenants. This involved sharecropping or fixed-rent payments:

At the head of each county shall be placed a chief who shall be selected by the Kabaka’s Government, but whose name shall be submitted for approval to Her Majesty’s representative. This chief, when approved by Her Majesty’s representative, shall be guaranteed from out of the revenue of Uganda a salary at the rate of E200 a year. To the chief of a county will be entrusted by Her Majesty’s Government, and by the Kabaka, the task of administering justice among the natives dwelling in his county, the assessment and collection of taxes, the upkeep of the main roads, and the general supervision of native affairs. On all questions but the assessment and collection of taxes the chief of the county will report direct to the King’s native ministers, from whom he will receive his instructions. When arrangements have been made by Her Majesty’s Government for the organization of a police force in the province of Uganda, a certain number of police will be placed at the disposal of each chief of a county to assist him in maintaining order. For the assessment and payment of taxes, the chief of a county shall be immediately responsible to Her Majesty’s representative, and should he fail in his duties in this respect, Her Majesty’s representative shall have the right to call upon the Kabaka to dismiss him from his duties and appoint another chief in his stead. In each county an estate, not exceeding an area of 8 square miles, shall be attributed to the chieftainship of a county, and its usufruct shall be enjoyed by the person occupying, for the time being, the position of chief of the county.

The Toro Agreement and Ankole Agreement (1901) followed as the British expanded their Ugandan protectorate and constructed the railroad.

For the same period, Kathryn Firmin-Sellers has described how chiefs in the colonial Gold Coast (now Ghana) sought political authority and gained privileged claims over economic assets by cynically invoking cultural ‘tradition’ to their favour:

Throughout Africa, customary land tenure laws evolved when land values appreciated at the turn of the century. Individuals and groups competed to appropriate the newly valuable resource by “reinventing tradition,” defining a version of customary land tenure favorable to themselves… British colonial authorities had neither the incentive nor the capacity to impose a new system of private property rights in the Gold Coast Colony… Officials of the colonial state announced that they would uphold customary land tenure and delegated enforcement powers to the Chiefs of the colony’s many traditional states.

Paramount chiefs thus avoided the dilution of their power that would have ensued from sale to immigrant farmers of freehold title to land suitable for the cocoa cash crop, or from concessions to Europeans seeking mineral and timber rights.

Thus, in seeking to subdue and extract income from African societies, rather than sending out their own civil servants to remake rural property relations entirely, European colonial states followed the advice of Machiavelli:

Whenever those states which have been acquired as stated have been accustomed to live under their own laws and in freedom, there are three courses for those who wish to hold them: the first is to ruin them, the next is to reside there in person, the third is to permit them to live under their own laws, drawing a tribute, and establishing within it an oligarchy which will keep it friendly to you. Because such a government, being created by the prince, knows that it cannot stand without his friendship and interest, and does its utmost to support him; and therefore he who would keep a city accustomed to freedom will hold it more easily by the means of its own citizens than in any other way

And in fracturing ‘native’ populations into different ethnicities, each ruled by its own customary authority, they also plainly followed the Florentine’s divide-and-rule prescription, as given in the Art of War:

A Captain ought, among all the other actions of his, endeavor with every art to divide the forces of the enemy, either by making him suspicious of his men in whom he trusted, or by giving him cause that he has to separate his forces, and, because of this, become weaker.

Yet the colonial era is long gone and, as Mamdani describes, post-independence elites continue to partition populations on the basis of group membership and ascriptive characteristics.

Citizenship rights may be allocated (as in Mobutu’s Zaire and its successor states) on the basis of ancestry rather than residence (so that the Banyarwanda of Kivu were defined as ‘foreigners’ because their forebears had arrived a mere century earlier).

Customary entitlements to ‘traditional’ land, and to political authority, may be granted to elite members of some groups, yet denied to those of other groups deemed ‘non-indigenous’. Assets held by members of such ethnic groups (e.g. south Asians in Uganda, Arabs in Zanzibar, Tutsis in Rwanda) may be expropriated and assigned to members of other (usually ‘indigenous’) groups.

Parochialism and in-group favouritism may determine:

  • the provision of infrastructure and delivery of public goods (irrigation, electricity, sanitation services, education);
  • beneficial granting of civil-service jobs and (through quotas) university entry;
  • patron-client relationships.

A view favoured and promoted by USAID and the World Bank suggests that complete, secure, well-defined property rights increase agricultural yields: transfer rights will allow land to be held by its most productive and efficient users, security of tenure will allow land to be offered as collateral for loans used to fund improvements, and a farmer who can capture all the rewards generated by his work has more incentive to expend effort.

Bolstered by such arguments, various central African states have sought, especially in the past three decades, to convert customary tenure to freehold title, through land registration and titling projects. The Ugandan Ministry of Land has put the case for a transition in property rights in its latest version of a national land policy.

The result [of lingering customary tenure] is legal dualism in the property system, a multiplicity of tenure regimes, multiple rights and interests overlapping in the same piece of land, and a heritage of evictions, arbitrary dispossession, land disputes and conflicts. The phenomenon of land disputes and conflicts have broken across national boundaries, spread to tribal and ethnic groupings, and merged with contemporary phenomena such as the discovery of extensive deposits of mineral wealth to generate overwhelming uncertainties in land rights resulting in tenure insecurity. In addition, land rights of vulnerable groups and land resource-dependent communities are either inadequately protected or poorly enforced… In the current era, Uganda has to face the challenges of a rapidly growing population by devising means to relieve pressure and competition over scarce land resources.

Attempts to establish private ownership in land have often proceeded in two stages, with an initial period when property is vested in the state. (This may be an attempt to avoid the enforcement problems which sometimes occur if land is simply re-allocated between private parties. Rearrangement of property rights by fiat is conferred with popular legitimacy if it is done in the cause of a putative ‘socialism’ or ‘national strength’.)

It regularly involves the kind of land dispossession that occurs during armed conflict and political violence. It was suggested during the past decade that the Museveni government’s forced internment of Acholi people in northern Uganda had as an objective (whether primary or auxiliary) the separation of farmers from their plots.

As Kampala’s land policy states, the push to define and enforce formal property rights in land and water comes with the growing scarcity and value of these inputs.

Commercial farming of cash crops is slowly filling the vast space between Kenya and the Ivory Coast. Perhaps more important are the quickly increasing number of exploration and production projects in minerals and energy which now run from Angola, up past the Gulf of Guinea to Sudan.

Labour has become a relatively plentiful and cheap input to production and land relatively scarce, and consequently more valuable. In such circumstances, it has become increasingly important to delineate for the owner, rather than the diffuse future benefits due the holder of customary title, precise contractually-specified terms concerning who is entitled to what (and who is obliged to do or contribute what) and under which circumstances:

The recent discovery of oil and petroleum deposits in the Albertine Graben has generated excitement in Uganda regarding the promise the resource may yield and the probable economic windfall in the energy sub-sector, its contribution to national economy and social well-being… As anticipated, the rush to secure land in these oil-rich areas is threatening communal lands which are neither demarcated/surveyed nor titled… In the event of oil companies and/or Government acquiring the land for production or processing of petroleum, the owners of land need to have ascertainable interests in land to benefit from the market value of the land.

Let’s quickly look at why an elite coalition of propertyholders and politicians might now expect to benefit from such a property-rights transition, just as many once did from the enforcement of ‘traditional rights’ under colonialism.

Compared to the full bundle of private ownership rights, customary property with fixed-rent tenancy confers a kind of insurance on the chief/landlord. (This is because, in the latter case, residual claimancy – the right to net cash inflows generated by an asset after all promised payments have been made – is assigned to the cultivator. Residual income is frequently negative in farming, thanks to weather-related fluctuations in output). Customary property thus reduces exposure to risk (in the form of income variation), yet at the price of a lower expected income.

But this hedge against uncertainty becomes less attractive as land values appreciate and the potential reward from full private ownership grows. Risk aversion is known to decrease as the level of wealth increases.

This isn’t to say that there’s a cohesive elite project in support of a transition to full private property rights, or that the latter are on the march across sub-Saharan Africa.

Elite bargaining over such a change, between chiefs, heads of lineages, local political authorities, military officers and bureaucrats, takes the form of an assurance game, in which an individual’s payoff to adopting a particular strategy is increasing in the number of others who follow the same strategy.

Each individual would willingly convert his land or water holdings to full private ownership because their potential rewards are highest in that state. But support for such an institutional transition is conditional on knowing that others will commit to do their part. Each party must be assured that a centralized coercive authority (the state) will uphold property rights against the threat of seizure or confiscation, and that other private actors will recognize (either voluntarily or through compulsion) the incumbent individual’s title as legitimate, ‘fair’ and acceptable.

If, instead, the fixed costs of enforcement would fall on private owners themselves, formal property rights may be a relatively unappealing option.

Moreover, where the scale of economic activity isn’t large (e.g. in small agrarian villages with low yields to tilling), the lowest-cost means of enforcing contracts may not be through formal ownership upheld by legal-judicial instruments.

The chief or clan leaders’s authority is based partly on informal or personalized arrangements whereby the landlord or local notable controls his own coercive apparatus, or through the social sanctions and reputational incentives enabled by small communities. Tenants and their families may be tied to a landlord for generations.

This mix of rights and durable obligations is difficult to re-create, at low cost, through formal rules and contracts. Low-productivity agriculture affords no economies of scale. The resulting absence of barriers or costs to entry would allow, under ‘ordinary’ economic conditions, a proliferation of small landowners. On the other hand, under ‘customary’ law, the accumulated power and social status of the chief or lineage head does form a barrier to entry by competitors.

‘Customary’ transactions thus involve personalized patron-client relationships, marked by reciprocity and mutual help. As Firmin-Sellers describes, full capitalist-type property rights promise to dissolve such personal, informal ties between chiefs and subjects. The prestige and status due, as a matter of convention, to lineage heads and chiefs would be ‘now measured in terms of monetary wealth’ and would have ‘little to do with his subjects’ success.’ This may disrupt the norms of reciprocity that (together with the chief’s coercive power) previously ensured compliance with chiefly authority and respect for his ownership. (This may be why the development of market-based economic activity, and creation of private ownership, is often accompanied by the reinvention of ‘traditional’ authority, and the invocation of old rituals and superstitious practices as a guide to current behaviour, and as a means to adjudicate disputes over boundaries, etc. See the spread of witchcraft cults in the colonial Gold Coast following the development of cocoa as a cash crop). This then may lead to quarrels and contests over claims to property. In contemporary Ghana, there is a ‘constant stream of litigation over land and chieftaincy.’

Thus, in the absence of credible guarantees that private property rights will be secure and not too costly, the risk-dominant strategy for each individual is to retain ‘ancestral’ (informal) control rights over land, along with the political authority, and the claim to a portion of the surplus product, that may flow from them.

Ensminger describes how even in Kenya – where privatization has been a consistent policy goal of colonial and post-colonial authorities since at least 1956 – customary tenure on farming land predominates. On the other hand, she notes, it’s been far easier to transfer the commons (e.g. the large parcels of open-access or common-property lands and water used by pastoralists and foragers in northern Kenya) to private ownership.

The post-colonial proprietary classes of central and east Africa (together with those instances mentioned from west Africa) thus find themselves with a similar mix of institutions governing their appropriation of economic resources to those that existed at independence. It’s no surprise that, as Mamdani writes, their legal, military and political apparatuses (which exist above all to pursue or prevent unilateral transfers of property ownership) are similarly unchanged. The ‘decentralized despotism’ of customary authority remains, with populations ‘legally fractured into so many different ethnic minorities’:

The consequence is to divide the population ethnically, empowering those considered indigenous and disempowering others considered nonindigenous… [Ethnic] clashes are more and more about rights, particularly the right to land and to a native authority that can empower those identified with it as ethnically indigenous… leading to a proliferation of armed militia in the context of ethnically driven clashes around land and other rights.

As a result, those societies have been trapped in negative-sum rent-seeking. The potential prizes over which rival elites contend are frequently eliminated by bouts of mutual distrust, antagonism, civil strife, state breakdown, ethnic cleansing, resource destruction and plunder; the costs paid by all parties thus surpass the benefits accruing to the successful party.

The results, it goes without saying, are both inefficient and unjust, implementing a vastly unequal division of the social product. They convey no clear advantage over other feasible arrangements. How then to account for their stability over decades? Throughout the past 50 years, the countries of central Africa have undergone a succession of deliberate attempts to reorganize society along markedly different lines: decolonization, coups, civil wars, etc. Despite these shocks, the assignment of rights and duties to people based on group membership, the devolution of coercive authority to ethnic-based administrative units, and customary law all have survived intact. How to explain this perplexing institutional durability and robustness?

It’s possible to identify one reason.

Note that, because property rights to land are often assigned according to ethnicity or similar group membership, between-group inequality often exceeds inequality within groups.

Consider what this means for the vast majority of the population of these countries: poor farmers and herders, urban petty proprietors and wage workers. Members of these groups hope to secure their livelihood, and that of their families, by getting and keeping access to land, water, tools, farm equipment, shelter, employment, public goods (education, healthcare, sanitation) as well as religious freedom and citizen rights. Under present conditions, such people will find it sensible to agitate for an ethnic ‘homeland’, complete with customary laws and their own administrative authority. If the social rules governing access to livelihood and entitlement to citizen rights are such that each individual’s best response (in current circumstances) is to parochially support the ambitions of elites from his own lineage, clan or ethnic group (and if each expects most of the others to behave parochially for the same reason) then parochialism will persist.

Members of the non-propertied classes will form political alliances on the basis of identity rather than class membership, instead of casting their lot with similarly placed people from other clans or ethnic groups.

Hence, by preventing the multicultural solidarity necessary for the assetless classes to mobilize and act in political concert, the conventions that ‘enforce race and ethnicity as salient political identities’ preserve the power and privileges of the wealthy. The prerogatives of ownership – though informal and ill-defined – survive.

I’ll end by returning to Machiavelli’s famous dictum, quoted above: division is functional for maintaining status-quo institutions. That this is especially true for rule by a propertied elite over a large asset-poor majority – political hierarchy and economic inequality – was later argued by James Madison in The Federalist Papers, has recently been taken up by Eric Posner and Adrian Vermeule, and is demonstrated by the reservation system in post-independence India. I’ll write more about this in the following post.

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5 Responses to “Property rights, customary law and ethnic identity in middle Africa”

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