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Article Excerpt
Abstract: Projects to secure land rights for the urban poor have been implemented in Sub-Saharan Africa for thirty years. A recurrent issue is providing sustainable land tenure for settlement residents/project beneficiaries. Commonly, individual titles have been used. Often recipients sell their land rights to more affluent city dwellers, exacerbating the growth of slums. Policymakers are investigating alternative tenure forms including community-based institutions. This paper presents a project in Kenya in which the Community Land Trust (CLT) model was used to provide tenure security as part of a settlement improvement project. The paper seeks to understand community decision-making on land tenure and why settlement residents selected a group or community-based title option over individual title when one theoretical perspective on property rights in Africa, the Evolutionary Theory of Land Rights, would predict a preference for individual ownership. The case study was constructed from qualitative interviews with settlement residents, coupled with informant interviews and document/archival analysis. The paper argues that Voi residents' decision to hold land together reflected their perception of themselves as a powerless group vulnerable to losing land to outsiders. The community, moreover, had a history of shared action to defend their land holdings that served to establish a level of trust which made the group tenure a possibility. The paper concludes that the decision to hold land together was entirely rational--a collective institution better served to protect their individual self-interest than the individual institution predicted by the ETLR. The Voi case underlines the notion that "history matters" in institutional analysis--to really understand institutional change we must understand the embedded context of decision-makers. The study also supports the perspective that there is no one-size fits all approach to land tenure. Policymakers should strive to provide a range of tenure options that can fit the context of the specific community.
INTRODUCTION
In March 2004, the Government of Kenya issued the terms of reference for a national level committee comprised of governmental officials, NGO representatives, private sector members, university faculty, and civil society groups. [1] The mandate of the committee was to resolve the country's land administration and management problems through the drafting of a National Land Policy. Key concerns highlighted for discussion by the National Land Policy group included: insecure land tenure for vulnerable groups such as women, pastoralists and the urban poor; poor land administration; weak dispute resolution mechanisms; and continued land fragmentation.
Kenya's land policy reform, notably, is not an isolated effort. Land policy discussions have been taking place in Sub-Saharan Africa since the 1990s in countries as diverse as South Africa, Ethiopia, Tanzania, Uganda, and Namibia. [2] Common to all these discussions is the question of what to do with customary or community-based land tenures, particularly whether to privatize or reform and retain these institutions.
That customary tenures are even a point of discussion in Kenya is in itself striking. In the mid-1960s when the newly independent Government of Kenya was determining its land reform policies, the question of what to do with community-based tenures was not open to debate--all customary rights and interests in land were to be extinguished. [3] Unabashedly market-oriented, the Kenyan government transformed community-based tenures to individual tenures through a protracted process of adjudication, consolidation, survey, registration, and titling. The rationale for the land tenure reform was simple: indigenous, community-based tenure forms were viewed as inhibiting economic growth because they provided insufficient "security of tenure" to allow for substantial investment in land necessary for agricultural production. [4]
By the late 1980s, after decades of governmental effort to convert tenures to leasehold and freehold, individual ownership of land appeared an unchallengeable method for registering ownership rights and providing security of tenure to Kenyans. Hence the decision in 1993 of a group of "squatters" illegally residing upon government land in Voi municipality to hold land together through a group ownership model known as the Community Land Trust (CLT) model came as a surprise both to local and central government officials and the expatriate technical advisors implementing a settlement improvement or upgrading project there. In contemporary Kenya land is a scarce resource and obtaining a title deed is for many Kenyans but a distant dream. Purchasing land on the market is prohibitively expensive, while the probability of obtaining government land under concessionary terms is highly unlikely, particularly given rampant land grabbing in the 1990s. [5] Why then, when given the opportunity for individual ownership, would community members decline this coveted offer?
The decision by residents of the Tanzania-Bondeni settlement in Voi, Kenya to formulate a community-based institution for land ownership based on the Community Land Trust (CLT) model is the subject of this paper. Specifically, this paper examines the decision from the context of economic theory and institutionalism. The paper argues that Voi residents' decision to hold land together reflected their perception of themselves as being a powerless group vulnerable to losing land to outsiders. The community, moreover, had a history of shared action to defend their land holdings that served to establish a threshold level of trust which made the group tenure a possibility. The paper concludes that the decision of the settlement's residents to hold land together was rational--a collective institution better served to protect their individual self-interest than the individual institution predicted by the Evolutionary Theory of Land Rights, ETLR. The paper concludes that "history matters" in institutional analysis--to really understand institutional change we must understand the embedded context of the decision-makers. The study also supports the policy perspective that there is no one-size fits all approach to land tenure. Policymakers should strive to provide a range of tenure options that can fit the context of the specific community. To achieve this, African land policies must include mechanisms for full community participation in crafting tenure regimes and making decisions that affect the ownership and use of land.
Following this introduction, the paper is split into four sections. The first section reviews an influential theoretical perspective on African customary land tenure and human decision-making embodied in the institutional and development economics literature. Section two presents the Tanzania-Bondeni settlement and the upgrading project. Section three outlines the methodology used for the case study and presents the findings of interviews conducted with residents of the settlement. The final section relates findings from the residents' interviews to economic theory and land tenure policy.
CUSTOMARY LAND TENURE AND DECISION-MAKING IN ECONOMIC THEORY
The discussion of customary tenures in African land policy reforms reflects one long-standing theoretical debate in the social science literature over the role of property rights in African development. [6] Essentially the debate is over whether customary or community-based tenures represent an obstacle to economic development and if African countries should implement reform programs to transform customary regimes to individual tenures. [7] On one side of the debate are adherents of the ETLR, whose ranks include neo-classical economists, Public Choice theorists, and some Neo-Institutionalists, who believe that property rights in any society evolve due to scarcity. [8] This theory predicts that as population pressure increases and land becomes an increasingly scarce resource, rights to land will individualize until private property exists. [9] This move to individual tenure is economically advantageous for both the land owner and the state since bestowing all property rights and decision-making powers in one person overcomes key economic inefficiencies such as transaction costs and free ridership. [10] For adherents of the ETLR, the move to individual tenures is inevitable since institutions are seen as evolving in order to maximize benefits and minimize costs. Institutions, moreover, have been described as moving toward greater efficiency over time. [11] The policy implications of the ETLR are clear: development-oriented governments should assist this evolutionary process by formulating and implementing individualization reforms. [12]
Those arguing for the retention of customary or community-based tenures, in contrast, represent a more multi-disciplinary group of scholars, including economic sociologists, anthropologists, and mainstream institutional economists. They make two primary arguments for community-based tenures. First, they contend that the function of land in African society is much more complex than granted by Western economic thought. [13] In Africa, they observe, land serves important social and political functions not common in the west. Land is the cultural basis of power and belonging. [14] The granting of land is a primary mechanism for structuring society and gaining political power and allegiance. The holding of land is the primary indicator of societal belonging. Second, these scholars argue that customary tenures have been mischaracterized and misunderstood. Customary tenures are not anachronisms impeding economic progress but instead are dynamic institutional arrangements characterized by a mix of property rights (some private, some shared) which has adapted over time to meet community needs. [15] Such tenures can be inherently secure and conducive to economic growth--nothing less than "private property for the group." [16] The failure of many African societies to move toward individual tenures is thus an indicator of the inappropriateness of these tenures for the African social context and a challenge to claims of universality for the ETLR. The land policy implications are also clear: forcible reform of land tenure using Western institutional models is not advisable. To improve tenure security governments should clearly define and enforce all property rights regimes, including indigenous institutions. [17]
Behind this debate on land tenure and land policy is an even more fundamental disagreement over human decision-making and rationality. Adherents of the ETLR view decision-making through the dominant theoretical model in economics, that of the "economic man." [18] As every Economics 101 student knows, economic man (and woman) is a self-interested, atomistic actor endowed with a set of preferences whose decision-making is expected to be "rational." Rational behavior is defined as utility-maximizing behavior, that is, behavior that makes the economic man better-off. [19] The evolution of land institutions described by the ETLR assumes the self-interested rationality of the economic man. Faced with scarcity and the difficulties of community-based tenures, a rational decision-maker will choose to hold land under individual tenure in order to maximize his/her utility.
Scholars skeptical of the ETLR, such as mainstream institutional economists and economic sociologists, not surprisingly are also quite critical of the economic man. They question the concept of human nature central to this paradigm. Human beings are cast as rational actors driven by the need to maximize their utility, yet every day one sees evidence in actual behavior that humans can and do act "irrationally" in the economic sense. [20] One also sees instances when people knowingly act against their individual self interest. [21] They argue that there is a range of motives for human behavior and decision-making in addition to self-interest. Humans are motivated by principles such as altruism, cultural constructs such as tradition and nationalism, as well as by ignorance and irrationality. [22] A second critique relates to the under-socialized or atomistic nature of the individual. Economic man is presented as a creature born with a given set of preferences. He is depicted as an individual acting in isolation, deliberating solely upon his own welfare and acting purposively to maximize that welfare. [23] Mainstream institutional economists, most vocally, find this presentation problematic because it does not explain where preferences--the source of purposive action--come from and why they change. In neo-classical economic theory, preferences are "immanently conceived" and fixed. [24] Without an explanation of why people have certain preferences and why preferences may change, mainstream institutionalists assert that economics offers little meaningful explanation for purposeful action. [25]
In contrast, mainstream institutional economists and economic sociologists have clear notions about the source of purpose. They argue that human beings are social animals born into a society endowed with culture, beliefs, and institutions. Human preferences and hence purpose are determined in an interactive process whereby the cultural and social factors that dictate what is considered acceptable or unacceptable behavior interact with individual perspectives and motivations. [26] Granovetter calls this view of human behavior "embeddedness." Embeddedness represents a middle way between the atomized, undersocialized perspective of neo-classical economics and the oversocialized concept of human nature once characteristic of sociology. [27] "Actors," Granovetter argues,
do not behave or decide as atoms outside a social context, nor do they adhere slavishly to a script written for them by the particular intersection of social categories that they happen to occupy. Their attempts at purposive action are instead embedded in concrete, ongoing systems of social relations. [28]
These on-going systems of social relations or institutions must be integrated into economic analysis in order to really understand purposive human behavior and predict economic outcomes.
These two debates--one over the evolution of property rights in Africa, the other an underlying disagreement on human decision-making--provide an interesting theoretical frame for examining the community decision-making that took place in the settlement upgrading initiative in Voi. Using the insights of ETLR, one would expect that given high levels of population growth, growing land scarcity, and the government's wholehearted embrace of private property and the market, any decision-maker offered the choice between individual or group leasehold would select individual title. The deviance--or irrationality--of the Voi community in selecting community-based property thus is striking. Why did their land tenure...
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