REPUBLIC OF NAMIBIA, Africa – Africa is home to one in four of the world’s hungry and is the only continent which fails to grow enough food to meet its own needs. The continent also has half of the world’s arable land, that is, land suitable for farming. If the crop yields on this land increased only 50 percent, Africa would be able to grow enough food to feed its population and also export the surplus, helping to boost the African economy. Assuming Africa is capable of capitalizing on its arable land, the state of land rights within the continent would still present a significant problem in the quest to develop a sustainable food supply in Africa.
The concept of land rights in most countries is a subset of property law. This right typically encompasses the ability to use the land, exploit its resources, generate revenue from the land and exclude others from entry. While land rights are ingrained in United States history, a significant portion of the world’s population does not have access to land rights, and such rights are virtually nonexistent in many African regions.
The lack of land rights in Africa may affect the continent’s small-scale farmers the most. For example, farmers in sub-Saharan Africa produce 80 percent of the region’s food and support 65 percent of the region’s population. However, these farmers are extremely susceptible to a practice known as land grabbing. Local and community farmers who have been on their land for years have been evicted, and farmland that was once productive has been left idle. What this means is each time land grabbing occurs, the amount of arable land in Africa is at great risk of being permanently reduced, which in turn limits the amount of food that can be produced.
As much as 90% of the land in sub-Saharan Africa is untitled, meaning that families who have passed land down from generation to generation could have their land taken from them and would have no enforceable legal claim against the taker. Another possibility is that the land could be taken by governments and sold off without any hope of compensation.
It is unclear whether the majority of these takings are by other individuals, corporations or governments. What is clear, however, is land purchases which ignore the interests of local communities and landscapes ignore the long-term benefits of many for the short-term gains of some.
To put the gravity of the situation into perspective, it is important to note that such a practice in the United States is virtually unimaginable. The Fifth Amendment to the United States Constitution guarantees the right to due process of law. This right is multifaceted, preventing police from shooting an individual without justification as well as prohibiting states from requiring an individual to confess to a crime in open court. But the right also prevents state and federal governments from taking private land without due process and just compensation.
There are subtle differences between the rules of each state, but the ability of the federal or state government to take an individual’s private land is tied to a legal doctrine known as eminent domain. Furthermore, though the doctrine has been established by years of litigation, it continues to remain complex.
But generally, before a governmental entity can take an individual’s land, it must be established that what is built in its place will be available to the public or will benefit the public in some way. Additionally, the landowner must be compensated for the taking.
However, the Fifth Amendment only applies to governmental entities. It does not prevent an individual from taking the property from another individual. Instead, property rights, while differing from state to state, ensure that individuals cannot simply begin occupying the land of others. In fact, criminal laws ensure that individuals cannot be forcibly removed from their land by other individuals. Titles and deeds help to ensure that landowners are protected against others who would otherwise claim a strip of land is theirs. Furthermore, landlord and tenant laws help protect individuals from illegal evictions.
Eminent domain and property law, which includes land rights, separate many African nations from other developed countries and may very well be preventing the continent from breaking out of poverty and into economic prosperity. But these rights are scarce in many poor nations throughout the world. One potential solution is for lawyers and legal scholars, from the United States and other developed nations, to assist the leaders of poor African nations in developing strong yet simple policies on the issue of land rights. Providing these nations with old, unused legal books or publicly accessible cases may also help begin the process of establishing solid land rights laws.
According to Landesa, 75% of the world’s poor live in rural areas where land is a fundamental asset and a primary source of income, security, opportunity and status. This is especially true in Africa. Nonetheless, the land’s benefits cannot be fully exploited when individuals have no security in the land they have spent decades developing and cultivating. Developing land rights in African nations will help improve the resiliency of families and increase food security so the continent’s residents can climb out of extreme poverty.
– Cavarrio Carter
Sources: United Nations Regional Information Centre, Landsea, University of Minnesota, The Guardian, United States Constitution: Bill of Rights – Fifth Amendment, Columbia University, Uniform Law Commission, SF Gate