By Dr Caroline Wanjiku Kihato
All too often the analysis of urban land markets in Africa draws attention to the failure of the African state and its institutions to create an enabling environment for a robust 'efficient' land market. It is true that poor land administration and registration systems, together with limited human and financial resources, conspire to create obstacles to well functioning land markets that lead to highly bureaucratic, inaccurate and corrupt land practices. But as Caroline Wanjiku Kihato argues, viewing Africa's urban land challenges as simply a function of technocratic challenges and institutional weaknesses, obscures a much larger (and fundamental) discussion about the appropriateness of the conceptual tools often used to understand the continent's land markets.
Africa is increasingly becoming urban, with projections that by 2030, 50% of the continent's 1 billion people will live and work in towns and cities. The implications of this for urban land are significant. Growing populations imply that there is increasing pressure for cities to provide economic opportunities, housing, infrastructure and social services to existing and incoming urban dwellers. Naturally, these activities take place on urban land. The process by which urban land is acquired, held, exchanged and regulated in African cities is varied and complex. Part of the complication emanates from historical legacies in which African cities have inherited multiple legal systems of urban land supply based on pre-colonial and colonial practices. Many cities on the continent recognise common, customary, and religious law (in particular Sharia law in Northern Nigeria, the Sudan and coastal Kenya). Now, managing a single legal system is difficult enough, but when multiple legal systems, whose underlying tenets and principles differ significantly from each other apply, their administration and adjudication is extremely difficult. In common law regimes, for example, land is considered private property and therefore can be bought and sold on the market. In customary law however, land is not alienable, nor is it considered a market commodity. Rather, customary land is a resource that is inherited or granted by a chief or king. These substantively varied views on land imply that the state needs different rules and administrative actions to address the multiple systems of ownership - a capability that few states possess.
While it is important to understand the different tenets of customary/religious and common law, these categorisations of urban land tenure are not exhaustive of the range of contemporary urban land practices that exist for acquiring, holding and owning land in African cities. Thus, compounding the difficulties of administering and regulating multiple legal urban land ownership and rights in African cities, is the fact that the majority of urban land is acquired outside of these legal categories. As African cities have grown, so too have the modes with which people access, hold and trade urban land. These practices are not necessarily formally enacted in the legislation or recognised by the state, "but are norms that members of a community treat as binding upon them and which they observe in practice" (Gbaguidi et al, 2004: 336). Research conducted in six African cities - Gabarone in Botswana, Kampala in Uganda, Enugu in Nigeria, Lusaka in Zambia and Maseru in Lesotho - shows that 50% to 70% of land for housing is accessed informally (Rakodi & Leduka, 2004). Even in South Africa, a country with one of the most extensive formal land systems on the continent, a large number of land transactions in urban areas take place outside of officially recognised systems of land management and property ownership (Marx & Royston, 2007).
Urban land experts use various terms to describe contemporary social practices of accessing land, holding and trading urban land. Some call it "living law" (Gbaguidi et al, 2004:336), others, "neo-customary" tenure (Mattingly & Durand-Lasserve, 2004; Obala & Kinyunga, 2004) still others "informal" tenure (Kironde, 2004), illegal tenure, and "quasi customary" tenure (Kombe, 1995). However defined, these urban land practices use a combination of customary and common law practices as well as norms adapted by communities to keep pace with the needs of a rapidly changing urban environment. The fact that these hybridised ways of accessing urban land are not recognised in the statutes does not mean that state involvement is absent, nor does it mean that systems of record keeping and administration do not exist. Indeed, there are examples in South Africa, and Tanzania to name a few, which illustrate that state officials witness land sales and keep a register of land transactions (Kironde, 2004; Marx & Roysten, 2007). Moreover, procedures and mechanisms for legitimising and securing land sales in these informal regimes of practice can be sophisticated. In Cotonou Benin, for example, families selling customary land will issue buyers a certificat de non litige (lit. certificate of non-dispute) a document that reassures the buyer that the land transaction they are entering into protects their rights to the land. While the document is signed by local chiefs or officials, and recognised as a legitimate mode of documenting ownership in a neighbourhood, it remains an 'unofficial' document with little protective value from a legal perspective (Gbaguidi and Spellenberg, 2004: 116).
Herein lies the paradox of urban land in African cities. While informal urban land practices provide a system for the majority of urban dwellers, including the poor, to occupy, or own land, their rights to land and any property they may have invested on it remain fragile and insecure. Although there may be a multitude of local practices that adjudicate rights and protect them, the fact that these practices remain outside of the law mean that they are technically illegal, and not recognised in the statutes. In addition, the ambiguity in the processes of acquiring land opens up opportunities for corruption, which works against the poor who are unable to obtain legal representation.
Economists tell us that insecure land tenure and rights, coupled with weak land administrative and registration systems, a mistrust of courts, and corruption do not provide a suitable environment for an active urban land market. Indeed, although Africa's urban land markets are growing, they remain relatively small when compared to other parts of the world. Investment in land is considered a risky business.
Notwithstanding this, there is a growing and active market in peri-urban areas which cannot be explained in conventional neo-classical economic terms. Numerous authors have written about the growth of the peri-urban land market and commodification in these areas of customary land. In Tanzania for example, about 80% of households purchased land in peri-urban areas in 2001, whereas in 1994, over 70% were allocated land through inheritance or the village government (Kironde, 2001). Research on slums in Nairobi and Kampala show that the land markets are active, as people move to these areas seeking plots and rooms to rent. Investment returns in informal settlements in Nairobi show that the rate of return in Kibera (Africa's largest slum) is 102%, paid back in 9 months. Slums are big business for those with the right political networks and ability to own land. In investment terms, the informal market performs better economically than the formal market. There is no doubt that the nature of land markets is changing everyday in African cities. The growing commodification of land, and the increasing sophistication of socially recognised mechanisms of legitimating ownership and rights to land, show that ordinary urban dwellers are developing mechanisms of securing their land investments where the state has failed, or responded too slowly. Despite a growing body of literature on the daily practices of land exchange and transactions in African cities, we still need data on how the informal market works. Knowledge on how the majority of urban residents access land not only tells us what their obstacles and opportunities are, but also sheds light on how we think about land economics in the twenty-first century. Understanding urban land markets on the continent is not so much an exercise in retrofitting existing neo-classical explanatory devices, but rather analyzing these markets in their own terms and developing a new vocabulary for explaining what we see on the ground.
- Gbaguidi A N & Spellenberg U (2004) 'Benin: Globalisation and land tenure changes in peri-urban areas'. In Woodman G R Wanitzek U & Sippel H (eds.) Local land law and globalization: A comparative study of peri-urban areas in Benin, Ghana and Tanzania. Munster: Lit Verlag pp. 81-152.
- Kironde J M L. (2004) Current Changes in Customary/Traditional Land Delivery Systems in Sub-Saharan African Cities: The Case of Dar Es Salaam.
- Kironde, J.M.L. (2001), Peri-urban Land Tenure, Planning and Regularisation: Case Study of Dar es Salaam, Tanzania, Study carried out for the Municipal Development Programme, Harare, Zimbabwe.
- Kombe W. (1995), Formal and Informal Land Management in Tanzania, The Case of Dar es Salaam City, SPRING Research Series No. 13, University of Dortmund
- Marx C & Roysten L. (2007) Urban land markets: How the poor access, hold and trade land. Pretoria: Urban LandMark.
- Mattingly, M. & Durand-Lasserve A (2004) Sticking with tradition How effective are new customary land delivery systems? ID 21 Insights Iss 48.
- Obala L. & Kinyungu N. (2004) 'Current changes in customary/traditional land delivery systems in Sub Saharan African cities - case study of Nairobi'.
- Rakodi C & Leduka C (2004) Informal land delivery process and access to land for the poor: A comparative study of six African cities Birmingham: International Development Department, University of Birmingham.