Guiding Principles:
Land Tenure in Development Cooperation

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Orientierungsrahmen:
Bodenrecht und Bodenordnung

Deutsche Gesellschaft
für Technische Zusammenarbeit
Abt. 45 / Div. 45

 

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3.5.4 Efficiency of Autochthonous and "Modern" Institutions

Reforms of the legal and regulatory framework very often demand the inclusion of autochthonous instruments for conflict arbitration and the participation of local authorities in the legal process. This can reduce the direct costs of a functional administration considerably, for example, if intimate knowledge of the problem situation or short, informal channels are utilized. However, a lack of democratic transparency may be the price.

Autochthonous law and reformed legal framework

The concrete acknowledgment of autochthonous instruments for conflict arbitration in state law and the practical boundary between the two legal spheres remain a challenge to be dealt with. Autochthonous law is only mentioned vaguely, for example, in land laws or in the ordinances for implementation. The danger exists, therefore, that the autochthonous law will neither be taken seriously or it will not be applied. The attempt to codify "customary law" explicitly as a part of the legal bodies, for example, to erect inflexible patterns thus, robs autochthonous law of its adaptability as was the case in Laos.

Should autochthonous methods of conflict resolution be embedded in modern state land tenure regulations?
Indigenous conflict solutions and modern state land tenure in Mozambique

In one fascinating case, local state officials in Inhambane Province were forced to call upon customary leaders to resolve several land disputes, as the local population was unwilling to accept their decisions. The decisions made by the customary officials were later "recorded" by local government officials and granted some degree of official status

(Myers 1995:16)

The percentage of those working in agriculture in village committees for conflict arbitration is declining especially in South and Southeast Asia due to socio-economic development. Correspondingly, values, goals and the type of arbitration decision have changed often to the benefit of the non-agricultural portion of the population. Increasingly, the law of the central government will go into effect.

Effect of social mobility

Conflict arbitration which is based on autochthonous rights treats the involved parties differently in Africa. "Equal in the eyes of the law" according to Euro-American understanding is only rarely ensured. Women usually receive rights to land only via their husbands; the young are in a weaker position compared to the older generations in land conflicts; the old-established have legal priority over immigrants; and the crop farmers possess more comprehensive and better defined land rights than pastoralists. The conflict between state law which is based on equality regardless of who the person is, his sex, his ethnic group, etc., and the legal reality is virtually insolvable.

Inequality of legal entities on autochthonous law

Autochthonous land tenure can rarely be applied to settle conflicts that reach much further than the community. It often cannot be applied in the following conflict situations: between neighboring communities whose (often fuzzy) boundaries were created by administrative actions, between smallholders and expanding agricultural enterprises, or between smallholders and the government.

As long as functional lower court authorities are non-existent and professional associations of attorneys are not permitted, then the effect of state conflict arbitration will be limited to the cities. If only loose connections between both systems exist, then the positive aspects of each will be systematically played off against one another and undermined. The discrepancy between the demands of reform and the legal reality creates new conflicts.

Both systems have a limited "range"

 

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