Download the file - United Nations Rule of Law

Security of tenure: Conditions and trends117Customary tenure arrangementsThe role of customary law in the regulation of tenure andsecure tenure rights is far more widespread than is generallyunderstood. This is particularly true in Africa where noncustomary(formal) tenure arrangements generally cover lessthan 10 per cent of land (primarily in urban areas), withcustomary land tenure systems governing land rights in 90per cent (or more) of areas. 7 In some countries, the proportionsare slightly different; yet, customary land remains byfar the largest tenure sector (such as Botswana, where 72per cent of land is tribal or customary, 23 per cent state land,and freehold some 5 per cent).One of the characteristics of customary tenurearrangements is that there may be no notion of ‘ownership’or ‘possession’, as such. Rather, the land itself may be consideredsacred, while the role of people is one of a stewardprotecting the rights of future generations. Thus, undercustomary tenure systems, rights to land may be characterizedas:• User rights: rights to use the land for residential oreconomic purposes (including grazing, growing subsistencecrops and gathering minor forestry products).• Control rights: rights to make decisions on how the landshould be used, including deciding what economicactivities should be undertaken and how to benefitfinancially from these activities.• Transfer rights: rights to sell or mortgage the land, toconvey the land to others through intra-communityreallocations, to transmit the land to heirs throughinheritance, and to reallocate use and control rights. 8Rights are determined by community leaders, generallyaccording to need rather than payment. Customary systemsof tenure are often more flexible than formal systems,constantly changing and evolving in order to adapt to currentrealities. However, this flexibility, as well, can be highlydetrimental to the rights of poorer groups and great caremust be taken in areas governed by customary land relationsto ensure that these groups are adequately protected. 9Traditionally, such customary tenure systems havebeen found mostly in rural areas. Continued populationgrowth in urban areas, however, has often implied thaturban areas have spread into areas under customary tenuresystems. This influx of migrants has frequently led toconflicts over the role of local chiefs, who traditionallyallocate land to members of their community under wellestablishedand officially recognized arrangements. It is notsurprising that people living in such areas object to beingconsidered illegal occupants of their land, even though theylack official titles to prove ownership. The inability of thelocal authorities or governments, as well as the unwillingnessof the formal market to increase the supply of plannedresidential land at prices which the poor can afford, hasperpetuated the dependence upon customary tenurearrangements. In many instances, urban sprawl into suchareas has even led to the introduction of entirely new tenurearrangements. 10Box 5.1 Tenure categories for the urban poorThe table below outlines the main tenure options available to the urban poor. As the tableindicates, most urban areas are comprised of an urban core and an urban periphery, both ofwhich may be the location of both formal and informal neighbourhoods.Formal neighbourhoodsInformal neighbourhoodsUrban core Tenements: Squatters:• Hand-me-downs • Authorized• Units built for the poor • UnauthorizedPublic housingPavement dwellersHostels, flophousesUrban periphery Private rental housing Illegal subdivisions:Public housing • Owner occupied• RentalSquatters:• Authorized (including site and service)• UnauthorizedIn addition, it should be noted that in some cities camps for refugees and displaced personscomplete the tenure picture.In the urban core, most of the formal neighbourhoods outlined above do not providethe degrees of security of tenure envisaged under human rights law. Similarly, the informal areasmay or may not provide for legal or quasi-legal security of tenure, although in many instancesunofficial forms of security of tenure may be in place due to localized political agreements andexpediency.As with the urban core, some individuals residing in the periphery may enjoy a measureof legal or quasi-legal security of tenure; but the norm tends to be a combination of inadequatephysical housing conditions coupled with inadequate degrees of tenure sufficiently strong toprotect dwellers against forced evictions and secure and stable enough to encourage them tomake the necessary investments in their own homes to improve conditions of housingadequacy.Source: Davis, 2006a, p30WHAT IS SECURITY OFTENURE?Each type of tenure provides varying degrees of security. Thespectrum ranges from one extreme of no de facto or de juresecurity, to the other end of the continuum, where thosewith legal and actual secure tenure can live happily withoutany real threat of eviction, particularly if they are wealthy orpolitically well connected.So, what is security of tenure? It has been describedas:… an agreement between an individual orgroup [with respect] to land and residentialproperty which is governed and regulated by alegal [formal or customary] and administrativeframework. The security derives from the factthat the right of access to and use of the landand property is underwritten by a known set ofrules, and that this right is justiciable. 11The security of the tenure can be affected in a wide range ofways, depending upon constitutional and legal frameworks,social norms, cultural values and, to some extent, individualpreference. In effect, security of tenure may be summarizedas ‘the right of all individuals and groups to effective protec-Customary systemsof tenure are oftenmore flexible thanformal systems