Living outside the law?

Regulating informal and customary land delivery

Most land for residential development in African cities is developed outside state regulatory frameworks. The channels through which land is made available can even vary from city to city.

Sometimes residential areas develop in unsuitable locations such as marshy areas, settlements are poorly laid out and it is difficult to provide services such as water and sanitation once houses are developed. As areas consolidate and densities increase, environmental problems worsen and more disputes may occur. However, the informal systems of provision that enable many households to access land are generally neither chaotic nor wholly detached from the political and administrative system.

Research on informal land delivery processes in six African cities, co-ordinated by the universities of Birmingham, UK and Lesotho is investigating how land is provided for urban residential development outside the formal systems of state allocation and administration and how this is regulated. To what extent do these informal processes and rules enjoy social legitimacy? Do they enable the poor and other vulnerable groups, especially women, to access land with secure tenure?

Early findings from the case studies indicate that, contrary to de Soto’s position (see de Soto article), the semi-formal and customary patterns of land tenure surrounding cities are crucial elements in current land delivery systems. Where the British as colonisers appropriated only sufficient land for an urban settlement, little publicly-owned, undeveloped land remains and there are few opportunities today for poor urban residents to obtain plots for free.

However, where large areas of land were taken for settler farms, these have in the past provided a great deal of free (or almost free) land to urban house-builders through state allocation (Gaborone) or informal settlement (Lusaka). Today, the presence of large farms on the urban outskirts enables the state to acquire areas for urban expansion (Gaborone) and organised groups of middle-income residents or land-buying companies to purchase land for unauthorised subdivision (Eldoret, Kenya.)

Indigenous systems

Elsewhere, land on the outskirts of colonial townships remained under indigenous systems of land management, however much they were changed by colonial intervention. Here, modified customary arrangements continue to provide land to group members, including the poor (but rarely the poorest or women in their own right) and as a means of resolving disputes. In addition, groups and families with customary claims are increasingly subdividing and selling land, thereby providing plots to those with the means, including women.

Many semi-formal and customary arrangements work well, especially if they are recognised by land administration agencies and the courts. However, the rights to land they transfer are often insecure. In particular, the insecurity arising from multiple claims to land encourages many to seek ratification of their tenure rights by ensuring that local officials witness transactions or the registering of them. The time this takes, the complexity of bureaucratic procedures and the scope for corruption vary, depending on the details of local arrangements.

How can policy-makers ensure a supply of affordable and suitably located land for urban development?

A preliminary recommendation is that rather than opt for the immediate transfer to a formalised system of property rights, governments should make it easier to supply reasonably-priced land through subdividing land held by customary rights holders or purchased by co-operative groups, by:

• improving subdivision layouts by adopting modest and flexible planning standards and changing the emphasis of planners’ roles from regulation to advice
• using investment in main infrastructure such as roads and water mains to guide processes of land subdivision, while enabling incremental infrastructure improvement to occur within most informally developed residential areas. Initial improvements could include shared water connections, solid waste collection and basic drainage, based on user charges for appropriate services and land tax for the remainder
• requiring neighbourhood levels of local governance and customary or administrative courts to operate simple administrative procedures for witnessing and registering land transactions and resolving disputes and providing for recognition of their functions and decisions by higher levels of government and the courts.

Carole Rakodi
IDD
School of Public Policy
University of Birmingham
Edgbaston
Birmingham B15 2TT
UK

T +44 (0)121 414 7232
F +44 (0)121 414 7995

c.rakodi@bham.ac.uk

See also

‘Informal Land Delivery Processes and Access to Land for the Poor in Six African Cities: Towards a Conceptual Framework’. Birmingham: School of Public Policy, International Development Department, Informal Land Delivery Processes in African Cities WP 1, by C. Rakodi and R. C. Leduka, 2003

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