In defence of customary tenure

Customary-Tenure-LEMUCustomary tenure is the prevalent means of land ownership in Uganda, where land is typically held by families and communities rather than by individuals.

Customary land ownership simply means that someone (or a group of people) owns or has rights to land because their community accepts that they own or have rights to it. Customary ownership does not rely on documents to demonstrate legitimacy.

Established customary land governance systems are well placed to promote sustainable rural land management. The tenure incorporates the societal importance of family obligation into land ownership. For many holding land under customary tenure, it is part of their identity as well as their livelihood. Customary land deserves careful protection to support those who own land in this way.

Although provision is made in Ugandan law for the continued use of customary tenure, customary land is not well understood outside the communities who use it, nor by many youths and younger generations. For this reason, customary tenure has suffered various attempts to remove or replace it, usually with individualized means of land ownership such as freehold.

The customary method of land governance is sometimes mistaken for “communal” ownership or “open access”. However, communities using these forms of land tenure have established customary rules and responsibilities to ensure that land is managed for shared prosperity, and for the benefit of future generations rather than for individual gain.

The key strengths of customary land management are
flexibility, responsibility, and sustainability.

Flexibility
Customary laws were created over years as a way of life of self-determination, with communities agreeing how they would govern themselves in order to promote social harmony. This is the fundamental basis of any lawmaking society.
 
The customs and rules according to which customary land is held are traditionally held and shared orally. This means that there remains flexibility in changing custom to suit changing circumstances. That said, to achieve security and certainty over rights, some of the major tribes in Uganda have written down their own land rights and responsibility for land management, evidencing an evolution in customary governance. One of the benefits of an oral, un-codified system is that it is created by the very people it affects, and that it can adapt to ensure equitable outcomes in changing circumstances.
 
Responsibility
The governance of customary land requires the interaction of institutions and individuals to work together to uphold rights and responsibilities, through a network of obligations. At family level, each family head is responsible for protecting the rights of all the family members, but it is the clan’s responsibility to hold them to account and to ensure that the rights of the vulnerable are protected. Traditionally, the greatest responsibilities of the clan were to ensure that land did not leave the clan, and to amicably resolve disputes.
 
Sustainability
Careful land use management and self-determined rules protect shared resources from over-exploitation. Contrary to what many who are used to other systems of land tenure may think, many owners of land feel secure in their ownership even without documentary evidence of land rights. Rights are typically well respected, and land can be mortgaged, rented, and bought within the community. Land is held as a resource for income, either as the sole source of income, or for retirement from other work. Land held in this way provides a safety net, particularly when considering the protections made for vulnerable family members.