The Issue of Property Rights and the Rule of Law

In most of Africa, property in terms of land, was almost always held under communal tenure. The reasons were cultural but based economically on the need for open access. Precolonial USA, Canada and Australia were the same and only after colonization did the issue of private tenure become an issue. In many cases, even conflict. In nearly all situations in so far as rural land, fences became a symbol of settler oppression and greed. In the USA, Canada and Australia the indigenous populations were eventually restricted to some form of “homeland” or Tribal Reservations. Their wider rights of access to all the land were just brushed aside by the settler populations, supported by superior force and growing populations. The traditional principle of communal ownership was maintained in these reservations.

In Africa, when the smaller settler populations were eventually overthrown by diplomacy or force of arms, land rights were in nearly all cases simply abolished. In Zimbabwe the colonial system of tenure over rural land was gradually dismantled – at first by State acquisition and resettlement and then after 2000, by a chaotic “fast track land reform program” which almost destroyed the agricultural industry. A similar process is underway in South Africa, retarded by the much larger settler population with much deeper historical roots.

In Africa this process has often been accompanied by the use by ruling elites to control rural populations on insecure settlements, for political purposes. This is clearly shown in South Africa and Zimbabwe where the newly settled indigenous people on both rural and urban land are being settled without security of tenure. Millions of people are involved, and the political, social and economic consequences are enormous.

This is by no means an issue restricted to a few countries. Only 18 per cent of the total area of land available in the world for agriculture is held under a sound, lawfully protected, system of tenure – corporate or individual. Africa, with 60 per cent of all available rain fed agricultural potential in the world, has the smallest proportion of titled land in the world. The statistics tell the story – Africa lags behind all other continents in agricultural yields, production and remains the only continent with a persistent shortage of basic foods.

We should not be surprised – a superficial examination of all the tribal reservations in the developed world will reveal conditions similar to those prevailing in Africa. Degraded land resources, low yields, high levels of erosion and declining fertility associated with abject poverty and malnutrition, even hunger. The reasons are not linked to any fundamental weaknesses in the populations involved, they are directly linked to the absence of security of tenure. A clear example of this is the recent issue of title rights to 8 million land holders in Rwanda. This has resulted in an explosive growth in rural investment, an upsurge in production and rising incomes across the country. The cost, the price of 8 million pieces of paper with the backing of a new set of laws, granting title rights to farmers.

In South Africa, a close examination of the settlement of both urban and rural populations since 1994 shows that the State has probably built close to 5 million homes in urban areas – the RDP Program, but not sold them to the occupants or offered anything more than a lease to rent. The result is that every town in South Africa has large areas of housing – without gardens, trees or any other form of development, just brick under roof shacks in long lines.

In the rural areas the State has acquired, at great cost, several million hectares of agricultural land from the white farmers (who are down from 60 000 to just over half that number today) and settled the “indigenous” people on the land, but without tenure. The consequences can be seen everywhere, estates abandoned, plantations dying from lack of water, abandoned farm buildings replaced with hovels in the open veld. It’s not due to the inability of the beneficiaries to farm, although that may be the case in some instances (as only 3 per cent of all Americans are farmers by choice), but it’s due to the fact that nobody owns anything.

When I was growing up in Zimbabwe, I was raised, effectively by my mother who had 4 children to contend with. The reason was that my father had become an alcoholic and had lost everything. We grew up in what was a “white slum” in Bulawayo. Low income, subsidized housing, rented from the City. No fences or hedges, broken windows, unpainted walls, cracked, leaking roofs. Then one day we got a letter from the City converting our status to that of home owners. We received the title deeds and our monthly rentals became rates.

The changes were instantaneous – fences went up, hedges were planted, houses repaired and painted, flowers and fruit trees planted. It was dramatic and in six months you could not recognise the area. Just a piece of paper. It enabled us to sell the house and buy a better property and it gave us security and dignity. Tenure.

In South Africa the new leader of the ANC has announced that they are going to start taking land from white farmers without compensation, but are going to do it “sustainably”. What does that mean? Any attempt to take land away from legitimate, legal owners of land without compensation just will not fly. They would be violating their own Constitution, domestic law, violating property rights and breaking any number of international laws and rules.

Such actions would put the skids under the South African economy, further undermine business confidence and halt all long-term development of agricultural land. The knock-on effect on the State would be very considerable. Agriculture in South Africa is only 8 per cent of GDP but the collateral damage would affect all sectors and almost certainly raise food prices in a country that is used to the lowest costs of food in Africa.

To change the racial composition of the commercial farming community in South Africa, all you have to do is to provide low cost, long term loans for the purchase of land from existing owners by people who want to farm for a living. If there are not enough of the latter (a real possibility) then expand farmer training. Then the program would be sustainable in every way. Any other solution would be catastrophic for the whole economy and the South African people.

But what Africa needs to face up to is the question of providing security of tenure to all who own property. It is not a matter of choice, it is essential if the continent is going to make progress. Granting tenure rights would create billions of real value, and empower hundreds of millions of people. It would raise productivity and lower prices, improve living standards and help us reduce absolute poverty.

The price to be paid is the creation of communities who are independent of political parties or personalities. Communities who will demand delivery, transparency and accountability from those they pay taxes to. For many in our political establishment, especially those with power and control, this is a nightmare scenario. But it is a battle to be won, a struggle in which we all have a stake, rich and poor and one on which the future of Africa depends.

Eddie Cross
Harare, 14th January 2018