Land Tenure Governance in the First Decades of the 21st Century: Progress, Challenges, and Lessons from 18 Countries

1. Introduction

Around the world, the effective governance of secure land tenure is essential for the productive and sustainable use and protection of land and related natural resources. Having some rights to land is essential for ensuring people have homes, and for billions of people it is also a means to produce food and crucial to their livelihoods. Secure rights to land have been argued to be the basis, or potential basis, for economic growth and progress [1-4]. The best way to govern tenure rights, however, remains a challenge and subject of much debate in academia and amongst policy makers.

This article reviews progress on improving the governance of land tenure in 18 countries (Table 1), primarily in Africa, in order to find broad trends and lessons that can be of value to our understanding of land tenure and its governance, and inform policy debates. This comes 15 years since the adoption of the important continental guidelines on land policy in Africa and 12 years since the adoption of the Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT). The principles in these guidelines are used as benchmarks for assessing the progress in improving land policies and legislation.

In looking at the trends, one fundamental question stands out, which is the extent to which the privatisation of land that has been advocated for by some and seen as a threat by others is happening or not. We look at this question some 20 plus years since De Soto [5] and the World Bank [3] set out proposals for privatising land and promoting land markets. This is an opportune moment to contribute to debates on the status of land tenure governance, including whether the land commoditisation agenda has prevailed or not, and to identify the new challenges and opportunities for improving land tenure governance.

Below, we provide more background on the recent and current debates and guidelines for improving land tenure governance. These are the debates that we contribute to in this paper. Then the methodology is explained before the main findings are presented in various sections that give an overview of the situation today, the alignment of policies and practices with good governance principles, the influence of international land policy guidelines, and the successes and best practices. The article concludes with an overview of the trends, sharing of key lessons, and the main argument that the direction of land tenure governance, including the extent of privatisation, remains highly contested with countries taking a range of different approaches informed by their particular politics and local struggles.

2. Background and the Debates

At the turn of the century Hernando De Soto published his influential book “The Mystery of Capital” [5] in which he argues for the unlocking of ‘dead capital’ through the formal and private registration of land. At the heart of his argument is the commoditisation of land, which requires active land markets, so it can be used as capital and as collateral, or sold to access more capital. A few years later the World Bank published an important report “Land policies for growth and poverty reduction” [3], which set out the Bank’s position on land. This report was claimed, by its main authors and others working with the Bank, to represent an important shift with the bank acknowledging some of the failures of privatisation initiatives that they had wholeheartedly supported and the potential value of a broader range of ways of governing land, including through communal tenure systems [3, 6]. The World Bank report, however, still focussed on how land markets could be set up to work effectively, as a means to access capital and unlock the tradable financial value of land as an asset, and as such it still supported land commoditisation. The failures of land privatisation were attributed to problems in land markets and the wider socio-economic contexts within which market orientated land reforms were being implemented, rather than being attributed to any inherent problems of land privatisation. The focus on land privatisation and land markets are not simply on paper, they are carried forward in the policy positions promoted by the World Bank and many other policy makers. We, the authors of this article, have been part of international and national policy making processes where in numerous conferences, workshops and meetings we have observed senior World Bank officials consistently pushing for measures to facilitate land markets and the general treatment of land as a tradeable commodity. De Soto has also been influential in policy work, from the United Nations hosted Commission on the Legal Empowerment of the Poor, which he was part of, to advising Presidents and country level land titling programmes, where he consistently promotes his commoditisation of land and property position [7, 8].

Numerous authors and activists opposed the private property oriented approaches to land tenure reform espoused by De Soto and the World Bank [8-10]. Central to these views was that past experiences, especially in Africa, had shown that privatising land had not unlocked value, access to capital, or wider development, and had instead led to people losing land and an increase in landlessness and inequality. For some, the limits of De Soto’s arguments, which would prevent them achieving the much-needed socio-economic development, were that they did not take into account the wider socio-economic conditions or the complexity and challenges of achieving effective land rights administration in Africa [11, 12]. For others, it is the very nature of ‘property’ that would lead to land dispossession and greater inequality [13]. It was also argued that the privatisation and individualisation of land rights undermined women’s rights to land as land tenure formalisation tended to vest absolute land ownership rights in men, who are widely seen as household heads, at the expense of women who had other customary or informal ways of exercising rights to land [9]. The critics of privatisation argued instead for greater recognition of informal, customary and communal land rights and governance systems, the strengthening of women’s land rights, and more holistic approaches to development.

A lot of the debates in the literature then, and in our interviews for this research, revolve around a binary of “Customary vs Private Property Rights”, a debate that was sharpened by De Soto’s advocacy of private property rights, with assumptions on the one side that private property was essential for development, while on the other side the preservation of customary land tenure is an essential defence against land dispossession [12]. The Framework and Guidelines on Land Policy in Africa (F&G) pick up on this tension stating that “[m]any African countries perceive an apparent contradiction between the pursuit of pro-poor strategies of land development on the one hand and market-driven options on the other” [14 p. 15]. The guidelines go on to argue the need to ensure market-driven policies do not further marginalise vulnerable groups. Chimhowu and Woodhouse [12] conclude that neither title registration, given the challenges and costs of such registration in Africa, nor the ‘idealized communal tenure’ will bring the hoped for tenure security and development benefits.

There are studies from specific national contexts, such as extensive work in Tanzania [7, 15, 16], that argue the predicted land commoditisation and consequent increased inequalities are taking place. In other cases, however, land registration seems to be widely appreciated by those involved, including more marginalised members of society, and appears to have improved tenure security for people in customary land systems [2, 17]. Nevertheless, at a broad level, land inequality is increasing, especially if we consider land value instead of land area, and this is accompanied by growing landlessness [18]. What is not clear, however, is the extent to which land rights formalisation and registration is contributing to these processes. Land inequality is deeply integrated as a cause and effect with wider inequalities and driven by a range of socio-economic factors, such as abuse of political power, concentrations of production and ownership in the economy, and urbanisation [18-20].

The high costs of formal land registration and challenges in implementing at scale were also decried by some activists and academics [7, 21], contributing to arguments that this was, aside from the other more fundamental problems with it, not a feasible route to securing land rights. Large-scale land registration programmes in the last decade or so in China, Vietnam, Ethiopia and Rwanda have, however, shown that formal land registration can be done at scale and cost-effectively using fit for purpose approaches and new technology [1, 22, 23].

While some authors focus on the registration of customary rights as a route to privatisation and dispossession, others point to it being essential to secure people’s land rights in the face of increasing pressures on land, not least from urbanisation, natural resource extraction, and other investments [2, 17]. Other authors are clear on the need to give statutory law recognition of customary land rights to protect it from these increasing demands for land, but are less clear on whether this needs to include registration of individual customary rights and the potential advantages and disadvantages of that [21, 24, 25].

Contrary to earlier experiences of land titling where women were receiving a smaller proportion of certificates of land rights [7, 26], more recent experiences and studies across a number of countries are showing women benefitting more than men from land registration. This can be seen in Ethiopia and Rwanda where more women received certificates of customary land rights than men [1, 27]. Other recent studies have found that more women than men also benefited from the registration of customary land rights in some cases in Zambia [2] and in areas of Botswana where they have now almost reached gender parity with 49% of customary land rights certificates held by women (against 51% held by men) at a national level [28].

In her 2011 overview of Land Reform in Africa, Wily [21 p. 13] concluded that there were “mixed outcomes of new land reformism thus far in Sub-Saharan Africa”. On the positive side she noted laws were passed that might give more attention to the needs of the marginalised and there was an increased awareness of the problem of colonial paradigms that left the majority as only occupiers, not legal owners of the land. The “crux” of the problem was that in most cases customary rights still did not have the same “legal respect” as “private property” and it was still “extremely easy to take land away from untitled and customary landholders” in most countries [21 p. 14]. In a more recent review Wily [24] has found that there has been a significant shift to improving the legal recognition of communal land rights. Out of 100 national land laws she reviewed, 73, including the majority in Africa, now recognise communal land rights “as lawfully possessed property”. Wily [24] argues that while this is a ‘messy’ and contested process, there is momentum towards greater recognition of communal land rights, with less risk of unfair compulsory acquisition, and this will improve tenure security for millions and form the basis for a more inclusive society.

As a response to the 2007/08 food prices crisis and global financial crisis, interest in land as an investment opportunity for large-scale food production and speculation dramatically increased as the importance of land for production was seen and investors sought new opportunities for returns on capital. This resulted in a dramatic spike in land grabs, much of the land being grabbed was customary land in Africa and Asia that communities had little or no legally recognised rights to [29, 30]. Land, in particular customary land, with weaker tenure governance systems was found to be more vulnerable to these land grabs [29, 31, 32]. This led to something of a reassessment of the importance of land registration as it was more widely realised to be an important defence against land grabs that suddenly commoditised vast tracts of land in very few elite hands.

In response to the challenges of land tenure governance and development, policy makers developed guidelines to inform interventions. In 2006 the African Union (AU) started a process to develop guidelines for land policy in Africa which resulted in the establishment of the Land Policy Initiative, now converted into the African Land Policy Centre1, and the 2009 approval by the AU summit of the Declaration on Land Challenges in Africa [33] and with it the F&G [14]. In 2012, following in the footsteps of the AU, the World Committee on Food Security adopted the VGGT [34]. Land experts and African government representatives who had been part of the adoption of the African positions were active in the development and support for the VGGT. These guidelines provide a framework for assessing the state of land tenure governance in this article.

3. Materials and Methods

The information for this article, that informs the findings shared in the following sections, was gathered through two research projects that the authors implemented from 2021 to 2023. One was titled “Learning lessons from the implementation process of AU Agenda on land” [35], the other titled “Learning from ten years of implementing the Voluntary Guidelines on the Responsible Governance of Tenure” [27]. Both research projects involved looking at progress on land governance in relation to the VGGTs and the various African Union positions on land.

Assessments of the situation of land tenure governance were carried out in 18 countries, 16 in Sub-Saharan Africa and two in east Asia. The selection of the countries was largely informed by the work and interests of the organisations that commissioned the studies, primarily the African Civil Society Platform on Land and Welthungerhilfe. The sample of countries is not fully representative, with the focus being on sub-Saharan Africa, complemented with a wider perspective from the two countries in Asia. Despite the limitations, this does provide a good basis for identifying some of the trends and the identification of lessons and best practices arising from the experiences in these countries, which will be of interest to other countries grappling with similar issues.

Each country assessment involved a review of policy documents and literature as well as interviews and inputs from key informants on tenure issues from every country, some of the Regional Economic Communities (RECs) and the AU. The key informants approached were people from civil society, government, multilateral organisations and academia who were known to be working on land tenure governance issues. In total 73 key informants provided direct inputs by completing questionnaires with 55 of these participants also being interviewed at length. In addition to the interviews, multi-stakeholder dialogues were convened in 12 of the 18 countries to discuss the state of governance of land tenure and these dialogues included inputs and discussions on the draft country assessments. The outcomes of the dialogues have been considered in writing this article. Drafts of the two research projects were further presented to experts from the African Civil Society Platform on Land, Welthungerhilfe, International Land Coalition, Global Land Tool Network of UN Habitat and the Food and Agriculture Organisation of the United Nations (FAO). The feedback from these experts assisted in clarifying and correcting the reports and has been taken into consideration in writing this article. The content of this article and the views expressed here, while benefiting from the range of inputs received, remain the responsibility of the authors and do not necessarily reflect the views of any of those who contributed, or the organizations involved.

For more details of the findings and the country assessments, readers can go to the two reports that are freely available [27, 35]. The purpose of this article is to share key findings, contribute to debates on the directions of land tenure governance, and identify key lessons for work and struggles on improving land tenure rights and governance.

4. Results

4.1. Key historical and contextual factors

Of the 18 countries studied for this article, 16 have been colonised in the past by European powers, the exceptions being Ethiopia and Liberia. The colonised countries gained independence during the 1950s and 1960s except for South Africa that finally ended apartheid in 1994. Ethiopia was also affected by European military intervention, with the invasion by Italy in the 1930s and a brief period of British rule during the Second World War. Ethiopia also went through its own tumultuous and conflict-ridden changes, moving from a feudal state under an emperor in the early 1970s to become a communist regime and then a federal democracy. After freed slaves from the United States of America (USA) settled in Liberia, the country declared itself an independent nation in 1847 and was never colonised. But it has its own troubled history that includes conflicts between the descendants of the former USA slaves and the indigenous communities. The divisions between descendants of freed slaves and the indigenous people of the area have been one of the causes of brutal civil wars and continues to mark the country today, not least in relation to land rights. Seven of the countries assessed have a fairly recent history of violent conflict, with some conflicts persisting today in countries like the Democratic Republic of the Congo (DRC). The lengthy civil wars in Sierra Leone and Liberia, for example, only ended in the early 2000s. The violent conflict in the Tigray region of Ethiopia was underway and then came to an end during the research for this article.

Colonialism and conflicts have profoundly shaped and still affect land governance in these countries today. Seizure and other forms of control over land and natural resources were central to the logic and functioning of colonial regimes, and land issues were important drivers of many of the conflicts. The current politics and economic and social challenges in these countries also shape and are in turn influenced by tenure governance issues; inequalities often have roots in land inequalities, and challenges of corruption and elite capture profoundly affect governance of tenure. It is therefore essential that we analyse and address tenure challenges within these complex contexts.

A specific tenure-related impact of the colonial influence that is also common across all these countries is the introduction of statutory legal systems based on Western models, with related concepts of property and freehold title. These were quite different from existing customary tenure governance arrangements with their related, often more fluid and collective, principles of land use and rights. The resulting dual tenure systems – customary on the one hand and statutory on the other – continue to plague tenure governance in most of these countries. Many of the tenure reforms of recent decades, certainly in relation to customary land, have been efforts to address this duality and give improved recognition under statutory law to communal and customary tenure governance arrangements.

All 18 countries studied have forms of democratic government, although the level of effective democracy is a point of contention. The Lao People’s Democratic Republic (PDR), for example, holds elections for a parliament every five years but it is a one-party state, with the Lao People’s Revolutionary Party having held power since 1975 and currently holding 158 out of 164 seats in the parliament. The Kingdom of Cambodia is a constitutional monarchy with an elected National Assembly, but there is still an influential role for the king. Burkina Faso has tried to build a constitutional democracy, but experienced two seizures of power by military coup during 2022 alone and remained under military rule as this article was being written in 2024.

These 18 countries include some of the poorest in the world, with Burkina Faso ranking 185th out of 193 countries on the Human Development Index (HDI) and Sierra Leone not doing much better at 184th. The best-off country, according to the HDI, is South Africa ranked at 110th, ahead of Lao PDR at 139th. All these countries, except South Africa, are among the 27% of countries considered least developed in terms of their HDI score [36]. There are quite big differences between them, though, in terms of their levels of economic activity. Annual gross domestic product (GDP) per person for the economically poorest countries, Madagascar and DRC, are just $506 and $643 respectively, compared with $2,430 for Cambodia and $6,023 for South Africa, which are the two richest countries studied. For comparison, however, the GDP per capita for these countries is still only a fraction of that of the USA with its GDP per capita of $82,769 per annum [37].

Across the 18 countries assessed, agriculture is a major source of jobs and livelihoods and makes an important economic contribution. Ethiopia, for example, has a population that is around 80% rural, with about 70% of the total population employed in or deriving their livelihoods from agriculture. The most urbanised country in the group is South Africa with around 68% of its population in urban areas. The next most urbanised is Liberia with just over 52% of its population in urban areas, but still around 43% of all employment in agriculture.

In all these countries, except South Africa, most farming is carried out by small-scale farmers using pieces of land that average around one hectare. This is in line with analysis that shows that 84% of all farms around the world are less than two hectares in size [20]. By contrast, in South Africa approximately 80% of the value of agricultural production is estimated to come from just 7,000 of the largest commercial farmers [38]. This level of concentration in South Africa is the result of the history of widespread land dispossession of the African indigenous population and the failures of the post-Apartheid land reforms.

Globally, there is great pressure on land and related natural resources as industry and food companies seek raw materials and investors seek profits. It is these pressures that tend to undermine the good intentions written into policies and laws. The Land Matrix has recorded 1,865 large land deals (above 200 hectares each) on 33 million hectares of land globally since the food price and financial crisis-driven rush of 2007/2008. The surge in land deals from 2007 to 2013 saw 30 million hectares affected. The pace has slowed since then, but the deals continue and compliance with principles of responsible investment remains as scarce as benefits to local communities [31]. Investors appear to target, or at least benefit from, situations where there is weak land tenure governance, but even when reasonable policy frameworks are in place, the potential benefits for a few investors and their enablers in government seem irresistible. Threats, bribes and the manipulation of community consultation processes are all used to override the policies that should be protecting people’s rights.

The new land pressures often come on top of historically created land inequalities. For example, over 14% of the land area of Liberia, a total of 1,368,987 hectares, has come under contract in the past 15 years, in just 11 land deals2. This is in addition to a long history of large land concessions to international investors; notably Firestone Corporation was allocated 400,000 hectares of land in Liberia as early as 1926.

4.2. Overview of governance of land tenure

There has been significant work done on land policies and legislation during the last decades, with 15 of the 18 countries passing new policies and/or legislation or making major amendments since 2000 (Table 1). This is in line with Wily [24] who found 21 countries in Africa had passed new land laws since 2000. Most of the countries we assessed have passed new policy and/or legislation since 2012, showing an acceleration of policy and legislative work. Some such processes were under way as this study was being carried out. For example, significant amendments to six pieces of land-related legislation came into effect in Malawi in May 2022. The parliament of Sierra Leone also passed two new land laws in September 2022, and the Democratic Republic of Congo approved a new land policy in 2022.

While Ethiopia does not have any official document called a “national land policy”, the country has issued proclamations at the federal and regional levels (legislative work at the regional level is not reflected in Table 1) in recent decades that have fundamentally changed land law and practice. The federal Rural Land Administration and Land Use Proclamation of 2005 has been followed by new proclamations in most regions. These proclamations have mandated and created the powers and procedures needed for the country’s extensive land registration programme. Madagascar has also done significant recent policy work with its revised land policy (Nouvelle Lettre de Politique Foncière 2015–2030), the adoption of a five-year implementation plan (2016–2020) and revision of customary/untitled land laws (propriété privée non titrée).

In Table 1 we can see that of the 18 countries 13 have adopted new land policy and/or legislation since 2012, when the VGGT were adopted, which was three years after the 2009 adoption by the African Union of the Declaration on Land Challenges in Africa and with its related F&G. Three countries adopted new policies or legislation in the twenty years before that. Two of the countries, Cameroon, and Senegal, have not adopted any new land policy or legislation in the last 50 years. These two countries, along with the DRC, still rely on land legislation that is over 50 years old resulting in a continued failure to legally recognise customary tenure systems and customary rights, although the new policy in the DRC does call for such recognition. This leaves local communities and indigenous people with tenure insecurity, as the national domain regime continues to operate. Other countries that had similar regimes (i.e. Benin, Burkina Faso and Madagascar) have replaced them with “presumption of ownership”, which recognises customary rights and title of land users. These rights are then registered and made more defendable with new documents, such as attestations of possession, certificates of ownership or customary land rights certificates.

The failure to adopt new policies and legislation in some countries is not just an oversight, it is the result of political influences, including conflicts. Cameroon and Senegal had extensive consultative processes since 2010. Senegal started an inclusive land policy discussion and development process in 2012 that produced a draft land policy. But the draft policy was never adopted by the Government after its submission by the national land reform commission in 2017. Work and consultations on a new land policy for Cameroon have been largely driven by civil society and have not yet resulted in the adoption of policies or laws.

In South Africa the rush of post-Apartheid land reform legislation in the mid to late 1990s has been followed by the country’s land reform programme falling into a malaise. The government has not shown the will or wherewithal to bring about far-reaching land reforms. There is still no new, post-apartheid, legislation to address the land tenure situation on communal land which remains home to around 20 million black South Africans, while an outdated, slow and expensive land registration system still operates for the private land that remains overwhelmingly white owned [39].

The principles for responsible governance of tenure as set out in the VGGT (Table 2) are used as a guide for looking at the quality of the policies and legislation adopted. The F&G are not set out with such a succinct set of principles but cover most of the same issues as the VGGTs and have also been referred to in the work on this article. This brief overview, based on the 18 country assessments that inform this article, is of necessity for an article like this limited in detail, but gives a sense of the direction of change and progress. More details on some of the specific land tenure developments of interest are covered in the section on successes and best practices.

Unsurprisingly none of the 18 countries assessed have governance of tenure in full conformity with all the VGGT principles or all the guidelines in the F&G. This is especially the case when considering not just the laws and policies but also their implementation and people’s actual experiences of the practice of land tenure governance. Across all the countries, the experts interviewed felt that the level of compliance with the VGGT and F&G was better in policy and legislation than it was in practice.

In most of the countries the legal frameworks, including constitutions, are in line with the first four VGGT principles – human dignity, non-discrimination, equity and justice, and gender equality. Most, however, while prohibiting discrimination based on gender do not require affirmative actions to ensure more gender-equitable outcomes.

Principle 5, on taking a holistic and sustainable approach to tenure governance, is not well achieved in any of the countries. Even where there are good intentions, the challenges that undermine the principle include a lack of coordination across government departments, lack of effective land use planning in most contexts, pressures on land from investors, and rapid urbanisation.

The principle of the rule of law is written into policy and legislation in all the countries. Unfortunately, however, this is also one of the principles most widely reported as not being a reality in practice. As a respondent in Cambodia put it: “In Cambodia there is only law enforcement against the poor and indigenous communities, but not when the rich and powerful take over the land of indigenous people… Whenever you have the money you have the power.” Talking about the courts, a respondent from Uganda said simply: “Only those who have means get their way.” The same sentiment was shared in other countries, with corruption and elite influence leaving many people in poverty feeling that they could not get justice in the courts if their tenure rights were violated.

The principles of transparency, consultation and participation are relatively strong in policy and in law across the countries, but with mixed experience in their implementation. In countries where reforms have taken place in the past ten years, there has been a good level of stakeholder consultation and participation in national policy development processes. In Laos, for example, the new land and forest laws were adopted after a three-year process that entailed wide consultations at national and provincial levels, strong civil society engagement and participation and inputs from development organisations and donors. Every country reported some level of stakeholder involvement. The concerns were whether such involvement was actually influential, and whether real grassroots representation had been achieved.

One gap is the lack of clear regulations and agreed procedures for meaningful consultation at community level. In practice, local consultation processes are often reported as being more about forcing through predetermined outcomes than truly involving those affected in decision-making. Transparency is often limited, especially when it comes to information on mining and large land deals. Positive experiences of meaningful community involvement have tended to come when there are NGOs and international organisations involved.

The ideal of inclusive and consultative processes that draw on internationally agreed guidelines, have expert and community input, and emulate established best practices are rare. Such processes in practice involve compromises and the balancing of different interests. An interesting example of this has been the mobilisation of traditional leaders in defence of their roles in land governance. Notable examples took place during the period of our research in Sierra Leone and Malawi. Traditional leaders won concessions, especially in Malawi, that increased the recognition of customary tenure systems, added more limits on land sales, and increased the power of traditional leaders in relation to more inclusive land management structure.

Unfortunately, good policy processes are at times completely overridden by political interventions that are informed by different sets of interest or are simply disrupted by political changes and conflicts. This is clearly seen in the failure of some countries – e.g. Cameroon and Senegal - to adopt new land policies and legislation. In Zambia political interests overrode a thorough policy development process with the quick adoption of a land policy that emerged without consultation in an election year.

Of particular interest are the recent groundbreaking commitments in legislation to Free Prior and Informed Consent (FPIC) in Liberia and Sierra Leone. These countries have gone further than the VGGT (FPIC is not included in the F&G) in making FPIC applicable not only to “indigenous” communities, but to any situation where community and family land is affected. If implemented, these laws will significantly raise the level of meaningful community participation in decision-making. Sierra Leone’s new National Land Commission Act of 2022 also sets fresh benchmarks in relation to transparency by explicitly requiring land structures, from local to national levels, to publish activity and financial reports and to make available and searchable the land registry and cadastre information.

Most countries are not living up to the principle of continuous improvement in the VGGT or the guidelines in section 6 of the F&G on “Tracking Systems”, which include the objectives of ensuring learning and making needed adjustments. Clearly, momentum on tenure reforms can be lost, and there is little built into policies and laws that requires continuous improvement. While most countries have some form of monitoring and evaluation (M&E) system, these are often not being well implemented in the sphere of land tenure governance. There are some good examples, such as Madagascar and Burkina Faso, which have both inserted M&E into their policies and are periodically evaluating to learn from implementation. Burkina Faso’s most recent evaluation in 2021 made key recommendations for improvement. Madagascar drew lessons from the first ten years of reform to inform new land policy and implementation measures, and it also revises its implementation programme every five years. The lack of unified national land registries across all the countries does, however, leave an information gap, which undermines effective planning and monitoring of progress.

While not in the principles, part 3 of the VGGT calls for the legal recognition of all ‘legitimate tenure rights’, including for women and communities. Section 2.5.2 of the F&G recognises discrimination against women and the need for legal and other reforms to “strengthen women’s access and control of land”. Part 5 of the VGGT talks to the administration of tenure including the keeping of records. All the countries that have adopted new policies and laws have improved the legal recognition of customary and communal tenure rights, as well as the recognition of women’s tenure rights. Most of these have also committed to new tenure administration structures, but most have not managed to put in place the required institutional capacity or to roll out widespread land rights registration. There are no unified national land registries functioning in any of the 18 countries yet (Rwanda is the only country in Africa that has this), but there are programmes working to put these in place and to digitise them in most countries, including Benin, Burkina Faso, Ethiopia, Madagascar, Malawi and Uganda. In Senegal and Cameroon, outdated legislation continues to prevent the recognition of customary land rights.

While not one of the countries focussed on in this study, Rwanda is important to mention for its comprehensive and cost-effective programme of land rights registration that has covered the whole country and captured all the data in a central land registry. The challenge of covering the costs of land registration, including keeping records up to date, including by registering any new land transfers, has emerged as an issue [23]. Rwanda is trying to charge for registering new transfers in order to cover the cost, but some argue this is making it too expensive and not all transfers are being registered. Not charging for the land registration service, as is the approach in Ethiopia, may be unsustainable.

Part 4 of the VGGT deals with transfers of land rights, including ‘fair land markets’, expropriation and compensation issues, and the need in some situations for redistribution and restitution. The F&G also argue that tenure reforms should be accompanied by redistribution when necessary to ensure sure land access and security for vulnerable groups. In several countries there is debate about the extent to which land markets are desirable, given both the need for investments and the risks of landlessness and land inequality. These contesting interests have played out in the recent reforms. Most countries prohibit the sale of customary land, but informal land markets still emerge. Malawi has attempted to counter the opening up of land markets with 2022 legislative amendments that explicitly prohibit the sale of customary land and undeveloped freehold land. This is part of a process effectively phasing out freehold land in the country as the recent legislation also prohibits the granting of freehold land to any person and empowers the minister responsible for land to expropriate undeveloped freehold land without compensation.

In Ethiopia people with registered rights to customary land are not allowed to sell the land, but are now allowed to lease or mortgage the use rights of land for a maximum of 10 or 12 years depending on the region. This is an attempt to facilitate limited land use rights markets that can enable the use land as a capital asset while also preventing land dispossession. There are different views on whether this is succeeding, with some arguing that it allows a level of market functioning without risking land loss by small-scale farmers, while others claim that it is too restrictive and does not allow for effective land markets that could improve land utilisation by those with resources.

The experts interviewed across the countries believe that where land rights are not registered there is a greater risk of land being taken by others or expropriated by the state and there is less chance of being able to claim compensation. In quite a few countries it was reported that land expropriation also takes place with no, or inadequate, compensation even when the land rights are registered. In Cameroon, Ethiopia and Senegal, compensation does not cover land as it belongs to the state or the nation. Compensation is therefore only paid for improvements on the land. In Ethiopia, complaints about this have led to the provision of alternative land in such cases, but there are still complaints that this alternative land is not equivalent to what was lost. Botswana have addressed this compensation challenge in recent amendments to the Tribal Land Act to require that compensation is paid for the land as well as improvements on it [28]. In contrast to these experiences, the payment of compensation for private land if expropriated has been identified as a hindrance to land reforms in South Africa and Zimbabwe and subject to much political debate. There are also disputes in all the countries about the value of compensation for improvements and about what constitutes “public purpose”, which provides grounds under law for expropriating land. These factors, combined with the already mentioned difficulties of obtaining justice in the courts, result in many people losing out when there are land expropriations.

Land redistribution and restitution are overlooked in all the policy and legislation adopted in the last two decades, despite being mentioned in the VGGT (along with redistribution in the F&G), as being necessary in some situations. These are not pressing issues in some countries where small-holder farmers still dominate land holding in a relatively equitable way, but provisions on redistribution and restitution have also been neglected in countries with serious land inequality and past land dispossession challenges. The now aging South African land reform laws did focus on restitution and redistribution but have been slow in achieving their aims. The explicit exclusion of opportunities for land restitution was controversial, given the history of dubious largescale land deals, in the otherwise well received 2018 Liberia Land Act [40].

4.3. Role of international guidelines

It is always challenging to attribute specific policy processes and outcomes to particular influences, nevertheless it is clear that the range of land policy guidelines and declarations in Africa and the VGGTs have contributed directly and indirectly to the land policy work undertaken across most of these countries assessed. The acceleration of development of new policy and legislation, including discussions that have happened even in countries where policies have not yet been adopted, following the adoption of the F&G and the VGGTs is a first indicator. Numerous respondents also mentioned ways that these guidelines have been used and seen to have influence. As one civil society representative from Ethiopia said “now whenever we discuss these issues, VGGT is at the centre… We check our laws in relation to these principles.” This recognition of influence is also explicit in some of the policy documents developed. For example, the new National Land Policy introduced in Sierra Leone in 2015 states that the VGGT “helped in the making of this comprehensive and substantive land policy reform”. Uganda’s Land Sector Strategy Plan 2013–2023 states that the VGGT were “central to land sector reforms initiated”. The land policy adopted in Madagascar in 2015 explicitly took up seven of the ten guiding principles in the VGGT. Such international guidelines can also evoke resistance; key informants in Cambodia said they avoid mentioning the VGGT in debates as they are seen as a form of outside interference.

Donor and multilateral agency support for the VGGT has clearly helped to promote them. FAO has played an important role in promoting the VGGT from country to international levels. Important funders of tenure reform, such as GIZ and the World Bank, explicitly reference the VGGT. In some cases, such as United States Agency for International Development’s Land Governance Support Activity in Liberia, referencing of the VGGT was part of the funding conditions.

The promotion of the AU declaration and guidelines had less direct support from multilateral institutions, but they have been accompanied by a range of initiatives to promote improved land tenure governance. The process of developing the various guidelines in Africa involved a range of land experts who have become a cohort of people with a commitment to land governance issues. Across countries and RECs, in civil society and government, this research came across people who had over the years been part of discussions on different elements of the African agenda on land and were still active in shaping land policy and legislation. Indeed, African experts and country representatives who had been involved in developing the African land declaration and guidelines also played an active role in shaping and supporting the development and adoption of the VGGTs. The AU bi-annual conference on land policy in Africa has also become a key meeting and discussion space where new developments in land policy are shared and the importance of land tenure governance is reenforced among government decisions makers, civil society groups, academics and others.

4.4. Successes and best practice examples

This section elaborates on some of what we believe are successful initiatives that are important best practice examples. While these all look promising and can be learned from, it is not yet clear how some will work out in practice, and what works in one country or context will not necessarily work elsewhere.

New land legislation, the Customary Land Rights Act (CLRA) [41] and the National Land Commission Act (NLCA) [42], was passed in Sierra Leone in 2022. Issues of particular interest are: 1) the requirement of FPIC from affected communities and families before changes are made to their land rights or use; 2) the requirement for wide involvement of both women and men in families in land decision-making on family land; and 3) a provision for the inclusion of landless land users in local land decision making structures.

The CLRA in Sierra Leone requires FPIC from families and communities before developments or changes in tenure status can be finalised (sections 28, 32(1) and 43(6)b) of the CLRA). This follows the lead of Liberia, which included a similar requirement in their 2018 Land Rights Act (Article 33.3) [40] for FPIC from communities before developments that interfere with land use can proceed. The new Sierra Leone law goes further by requiring FPIC from “adult male and female members of the affected community” (section 43(6)b) [41].

A requirement is also established by the CLRA for at least 60% of both women and men in families to approve important decisions concerning family land (sections 11(1) and 28) [41]. This is an interesting attempt to address a weakness seen in legislation in other countries that provides protection for spouses in decision-making on land but leaves out other family members who access land, especially unmarried women.

In the face of the threat, and in some cases the reality, of increasing landlessness across many countries, Sierra Leone’s NLCA provides for landless land users to be part of local land decision-making structures [42]. Chiefdom Land Committees are required to have both a “land owner” and a “land user” who is not a land owner, as members (Section 43(10) b and c of the NLCA).

All the countries in the study have moved from past practices of explicit discrimination against women to now prohibiting discrimination based on gender. All the new or amended policies and/or legislation passed strengthen the recognition of women’s land rights and some countries have gone further than prohibiting discrimination to now require affirmative action to improve women’s tenure rights. In this regard, Ethiopia is a positive example, with provisions on women’s land rights including a commitment in the constitution to affirmative action to address gender imbalances. The federal land laws also explicitly give women the right to land for free if they want to engage in agriculture. These commitments are reflected in a land registration process that has seen more women become registered land rights holders than men. Of the certificates of land rights issued 23–24% of titles are in the names of women alone compared with 14–15% in the names of men alone, while 55% of land parcels are held in joint title with both spouses named.

Most of the countries that adopted new land policies or laws in the past decade require minimum numbers of women in land management and governance structures and set targets for a minimum proportion of new land allocations to go to women. This is in line with the African Union call for a minimum of 30% of land allocations to go to women [43]. The Rural Land Tenure Law in Burkina Faso, for example, calls for actions to improve the position of women and youth and sets a target of 30% of developed land allocated by government going to women and young farmers. The new National Land Policy adopted in Zambia in 2021 has a commitment to “ensure 50% of available land for alienation is allocated to women”.

All of the countries that brought in new or amended policies and/or legislation have given improved legal recognition to customary and communal tenure systems. The securing of customary land rights has also been given effect in some land registration processes. Ethiopia has rolled out substantial land rights certification for over 25 million land parcels, which has been free to beneficiaries and has been done at a total cost per title of just $8.50.

Changes in policy and approach have given greater recognition to the importance of effective, transparent and non-discriminatory land governance and administration. Generally, policy processes have become more consultative with more stakeholder involvement, more dialogue, and the increased use of multi-stakeholder platforms (MSPs). 13 of the 18 countries have established MSPs or had other processes of extensive stakeholder involvement in land policy discussions. This does not mean that processes are ideal in terms of inclusion; more work is needed to ensure that participation of the most marginalised is truly influential, the inclusive processes themselves have in some cases (e.g. Zambia and Senegal) been overridden by other political considerations. There is, however, still a clear and positive trend, which can be built on, towards more inclusive decision-making processes.

5. Discussion and conclusion

There has been a remarkable amount of work done across most countries to develop and put in place new or amended policies and legislation this century, especially since the adoption of the AU declaration and guidelines on land policy and the VGGT. It seems clear that the adoption of these African and international guidelines has contributed to that policy work happening and the quality of the policies and legislation adopted.

These new policies and laws have brought substantial improvements to land tenure rights and governance when measured against the principles contained in the VGGT specifically in terms of progress in the areas of strengthening of women’s land rights, the recognition of customary and other communal land tenure systems, and making land policy development more transparent and inclusive. These are all moves in the right direction according to the land experts interviewed and most authors writing on land tenure rights and governance.

Where there is less agreement on what represents progress is around the extent of commoditisation of land and the related debates on the creation of land markets and the registration of individual customary land rights. There are also no consistent international trends on these issues; they remain contested especially at national level. The all-out privatisation and commoditisation of land, along with formal land markets, have not materialised; overall De Soto and the World Bank have not got their way.

We are not arguing that commodification is not happening in some places, but it is not uniform, there are ‘flanking’ manoeuvres [26] that change the outcomes and other forms of resistance; the outcomes are not inevitable, they are all there to be struggled over. Struggle taking many forms from community action, lobbying and advocacy, the work of independent academics, to the efforts of committed civil servants and policy makers.

We have found a significant move towards the recognition and strengthening of customary and other forms of communal land rights. This is in line with the analysis by Wily [24] of land legislation in 100 countries. This recognition of communal forms of tenure is a clear counter to commodification of land.

The formalisation and registration of individual community land rights has picked up pace, but it is not part of a clear linear move to privatisation. The formalisation programmes have been accompanied by measures to limit land privatisation, as seen in Malawi and Ethiopia for example, and to recognise wider community rights and customary land administration systems. The arguments for the registration of customary land rights, including for individuals, is no longer so much about unlocking development potential as it is about people having secure land tenure in the face of increasing pressures on land from factors such as urbanisation and investments. The land registration, that some have argued is a step to privatisation and dispossession, is in many contexts a level of defence against the more dramatic land privatisation of land grabs.

The capacity to do land surveying and registration has increased and the costs of doing it have come down with the use of fit for purpose land surveying and registration and new technology as has been seen in Ethiopia and Rwanda. We have also seen that women can benefit from land registration with a number of examples of women receiving more of the certificates of land rights than men, such as in Ethiopia, Rwanda, Botswana and in some cases in Zambia.

A fundamental aspect of customary tenure that has been retained across these countries is the principle that all adult members of a community, in some cases only when they have a family, are entitled to an allocation of a piece of land in that community, regardless of their wealth. This is an important counter to the threat of landlessness and inequality. The challenge, whether land is formally registered or not, is if communities run out of land for these allocations. It is notable that Botswana accompanied its formalisation and registration of customary land rights with an increase in the overall amount of customary (‘tribal’) land. They did this by stopping any allocation of freehold land and converting state land to customary land [44]. This makes more land available for communities to allocate. This is contrary to moves in, for example, Tanzania, which combined its land formalisation with reducing ‘village land’ available to communities by putting it under state control as ‘general land’, too often for purposes of making it available to large investors [16]. A simple lesson is that the distributive outcomes of formalisation of customary land rights will depend on the nature of the rights formalised and other factors, such as land availability and the management of land grabs.

Land grabbing, both domestic and foreign, remains a serious threat to the land rights of the majority, especially to the vulnerable. Most national governments continue to seek foreign investment, including for ‘large-scale land deals’ (grabs). The risks of this are, however, being countered by the strengthening of customary and community land rights and especially recent requirements in law for FPIC by affected communities before changes in land rights and use can go ahead, as in Liberia and Sierra Leone. These FPIC provisions are a clear challenge to land markets and land dispossession. Ensuring the effective promotion of such provisions in other countries, and their implementation, needs to be a priority.

Despite progress, it is essential that the challenges are not forgotten. The actual registering of communal land rights has been slow in almost all the countries. Likewise, in all the countries gendered power relations and inequalities continue to marginalise women. Some countries still need to update legislation that is more than half a century old. Other countries have new policies and legislation, but have not put in place the regulations to give effect to new laws and have not established the institutions needed for implementation. Challenging as this will be, wider issues of good governance will have to be addressed in all countries if there is to be effective land tenure governance. These good governance issues include ensuring improvements in the functioning of justice systems, building effective government administration, improving coordination among government land agencies and, ending corruption that undermines good land governance.

There is an almost complete lack of redistributive and restitutive measures in the new land policies and legislation, which is a major gap given past land dispossessions, whether due to colonialism or more recent land grabs, and the risk of new land inequalities emerging. It would be a much-improved situation, at least for equity and justice, if all the land tenure reforms were accompanied by redistributive measures, as both the VGGT and the F&G have suggested they should be.

Our point with the positive aspects of the conclusions shared above is to recognise the real progress that has been made and that needs to be defended and built on. The successes show us what is possible, and we do believe the overall trends are in the right direction.

There is much more research that could be usefully done now and in the near future to learn and share from experiences of how the new land tenure developments work out in practice, such as the implementation of Sierra Leone’s requirement of FPIC, the efforts in many countries to set up national and digital land registries, the different ways countries are managing the tensions between more communal and more individual land rights, and with that threading a path between more marketized and more socialised forms of land tenure rights and governance. We have a richness of varied real-world experiments going on in different countries that are trying to grapple with these issues. Learning more from how these experiments work out will be invaluable to future land reforms.

Land tenure rights are complex and context-specific, requiring approaches that take into account the different interests involved. The solutions that can be sustained are unlikely to be ideal; they will be shaped by power relations and what can work in difficult situations that often have their origins in troubled histories, high levels of poverty, and current contestation over natural resources. What encourages us is that countries are exercising agency by trying different approaches to balancing the contesting interests and priorities involved to find solutions that might work for their contexts.