Land Administration Systems and Legal Framework Reform Focussing on Constitutional Principles in Sub-Saharan Africa

Abstract

A nation’s constitution should be overtly pro-poor in its objectives. These should include how constitutional principles support land administration systems and their legal frameworks, their reform. Constitutions have, been long neglected. There is a need within developing nations to embed pro-poor objectives into land administration systems and their legal frameworks such that reforms meet the needs of the most vulnerable in society. Prior to reform of any system, understanding of that system is imperative. However, there is a lack of a context-specific frameworks to assess existing land administration systems in conjunction with constitutional law prior to a reform intervention. To develop a conceptual framework for the thorough evaluation of a country’s constitution in the context of Sub-Saharan Africa, secondary data and a text-based methodology were used. Sampling logic was applied to gather and analyse the data. A conceptual framework for accessing land administration systems and their legal frameworks, for use prior to land administration systems reform initiatives, is proposed in this chapter. To deliver pro-poor land administration systems and their legal frameworks, three fundamental constitutional tenets—human rights, the rule of law, and legal pluralism—were identified and inform the assessment of various country constitutions.

1. Introduction

This chapter identifies human rights, the rule of law, and legal pluralism as imperatives for successful, long-lasting land administration systems (LASs) and their legal frameworks in SSA. We examine whether a country’s constitution embeds or ignores human rights, the rule of law, and legal pluralism. Because the rule of law is one of the guiding concepts of human rights, both the rule of law and legal pluralism are important. Both structural and operational concepts make up legal pluralism [1]. A conceptual framework for evaluating LASs and their legal frameworks is developed taking into consideration these fundamental tenets [2].

Focusing on customary land law, land tenure, and LASs, researchers examined the significance of LASs and their legal frameworks for the advancement of human rights, the rule of law, and legal pluralism in SSA. We learn that a state’s responsibility for ensuring responsible land management (RLM) [3] is based on providing for human rights, ensuring the rule of law, and, in the context of customary societies, also embedding the principles of legal pluralism within LASs and their legal frameworks. When striving to attain RLM, Fit-For-Purpose Land Administration (FFPLA) identifies that spatial, institutional, and legal frameworks should be considered.

Some international human rights treaties [4, 5] include the guarantee of ‘land rights for all’, which includes the right to secure land tenure and appropriate housing. Land rights should be documented, respected, and acknowledged by the respective state; this is challenging in the context of African customary law. LASs may be ineffective if there is conflict between customary and statutory law, tenure, and land administration systems. Furthermore, human rights, the rule of law, and legal pluralism should be embedded within constitutions in support of RLM. Without these, realising RLM may be jeopardised.

2. Human rights and responsible land management principles

Human rights can be classified as structural or operational [1]. Within the laws of a country, structural aspects of human rights include universality, inalienability, indivisibility, interdependence, and interrelatedness. Participation, accountability, non-discrimination, transparency, and the rule of law are operational concepts of human rights (see Table 1). These should be applied with due consideration to context.

Structural principles	Universality	Without exception, human rights apply to everyone. Everyone is entitled to protection under the law, regardless of ethnicity, gender, or affiliation with a particular faith. Because they are people, everyone, wherever, is entitled to human rights [7, 8, 9, 10].
	Inalienability	No one’s human rights may be taken away or violated, but some may have their enjoyment temporarily or permanently limited for a reason, typically for the greater good [7, 10].
	Indivisibility	All human rights have equal status and cannot be ordered hierarchically [7, 10]. Human rights are not ranked in any hierarchy, and all have equal standing.
	Interdependence & Interrelatedness	All human rights—economic, social, cultural, political, or civil—are a part of every person’s intrinsic dignity. The accomplishment of one right depends entirely or partially on the achievement of other rights, and the enhancement of one right makes other rights easier to advance [7, 8, 9, 10].
Operational principles	Non-discrimination & equality	Apartheid is an example of intentional discrimination. Intentional or inadvertent effects of laws and behaviours that can have a discriminatory impact are prohibited. The equality principle complements non-discrimination [7, 8, 9, 10].
	Participation	Individuals have a right to participate in decisions that influence how their rights are protected, upheld, and realised. Furthermore, participatory processes should ensure that marginalised groups are included and that all voices are heard [7, 10].
	Accountability	Governments should be held accountable if they do not defend human rights. It is not enough for rights to be acknowledged in law or policy; there also needs to be a practical and realistic means of ensuring that these obligations are kept [7, 10].
	The rule of law	No person (natural or non-natural) is above the law. Governments should abide by the national and international legal requirements and norms that uphold and safeguard human rights. Rights holders who have been wronged should be able to seek compensation or suitable redress through legislated norms and procedures that are consistent with human rights principles [7, 10].
	Transparency	The public should have access to information about how key choices that affect their rights are made, and governments should be open about the decision-making processes they use [10].

Table 1.

Human rights principles (adapted after [6]).

Some countries address human rights principles in a dedicated chapter in their constitution. For instance, Chapter IV (Sections 33–46) of the Nigeria Constitution deals with Fundamental Rights [11]. This covers human rights principles relevant to that national context [12]. Comparing the Universal Declaration of Human Rights [5] and these Fundamental Rights, reveals commonalities and differences. Those aspects that address human rights principles are common, while differences are found in the context-specific aspects of the law. An example is in Sections 43 and 44 that address the right to acquire and own immovable and movable property and compulsory acquisition of property [11]. However, the definition of property is lacking. What constitutes property has been a significant debate [13, 14, 15, 16]. Although Sections 43 and 44 stipulate the human rights of Nigerian citizens [11]; there are several violations of these rights, including those relating to land [17, 18]. Such contradictions between constitutional principles and practice are not particular to Nigeria.

In the Constitution of South Africa, rights, duties and obligations, as well as the horizontal (public-public) and vertical (state-public) relationships are included and explained [6]. The South African state must respect, protect, promote, and fulfil human rights in the vertical relationship of responsibility towards citizens. In the horizontal relationship, rights holders must uphold the Bill of Rights [6]. These horizontal and vertical relationships are lacking in the Constitution of Nigeria. For instance, unlike the South African Constitutional Sections relating to Rights and Application (Sections 7 and 8), there are no comparable sections in the Constitution of Nigeria.

The RLM framework is developed based on eight normative notions and goals (8Rs) related to structures, processes, and impacts/outcomes [3]. These are resilience, robustness, reliability, respectfulness, reflexiveness, retraceability, recognisability, and responsiveness. They are indicators of RLM that also address the structural and operational principles of human rights (See Section 3 of this chapter) [1]. The indicators of RLM are explained thus [19, 20]:

• Resilient: In order to avoid failure, intervention structures should be sturdy enough to endure unforeseen events.

• Robust: The implementation of the intervention should be carefully planned, implemented, and strengthened into a system that can endure despite challenges.

• Reliable: Based on past performance, there is a reasonable expectation that the intervention mechanism will produce the desired outcomes.

• Respected: Any biases, corruption, or other activities that cast suspicion on the design of an intervention should be avoided.

• Reflexive: To enable individuals to genuinely contribute, intervention structures and management should inculcate the people and their ideas.

• Retraceable: Decision-makers should be identified; intervention structures should be clearly established. To allow for future referencing, the methods should be thoroughly documented.

• Recognisable: People can identify with the decisions; there is ownership of the project or intervention.

• Responsive: Including needs, requests, long-term views of stakeholders addressing urgency of need [20].

3. The link between human rights principles and responsible land management

Achieving some Sustainable Development Goals (SDGs) that support land rights for all requires RLM; this will help contribute to successful and significant LASs and their legal frameworks. Land management is described as the regulation of land use in connection with actions made to safeguard the land rights of specific vulnerable groups, such as women, children, pastoralists, and hunter-gatherers [21]. These actions include zoning, conditions, and environmental protection measures. The measures put in place to guarantee that policies are carried out in accordance with their stated objectives are equally important [22]. According to de Vries and Chigbu [3], this concept is the culmination of changes made to governance, law, socio-spatial relationships, economic possibilities, attitudes, and behaviour. In terms of this definition, RLM may help to regulate land use and protect the land tenure of vulnerable groups. Handling LASs and their legal frameworks as part of RLM is intertwined with the realisation of human rights. For instance, some rights, restrictions, and responsibilities (RRRs) can only be realised if a holistic approach to land administration includes a human rights perspective. Access to land and the way land is regulated can be negatively affected by non-adherence to human rights principles [23].

Human rights principles are included in numerous national and international frameworks for sustainable development that would support RLM. A few noteworthy frameworks include Fit-for-Purpose Land Administration (FFPLA) and the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests (VGGT). The objective of FFPLA is inclined to pro-poor approaches based on human rights principles of non-discrimination and equality, participation, accountability, and transparency. These are embedded in the spatial, institutional, and legal frameworks of FFPLA, as reflected in each of the 12 associated indicators (four per framework) [24]. According to the VGGT, the objective is to enhance tenure management through the application of the Guidelines in all programmes, policies, and forms of technical assistance intended to assist states in meeting their current obligations under international law, such as the Universal Declaration of Human Rights and other international human rights instruments [25].

RLM, as indicative of the VGGT, is rooted in human rights obligations [26]. The objectives of RLM align with the goals of VGGT. In integrating human rights principles in land management, the VGGT set the standards and criteria for achieving these [26, 27]. Prominent is the provision of a flexible legal and organisational frameworks for the management of land tenure [see Section 5 of VGGT]. The legitimacy of tenure, including customary tenure, should be recognised and respected by the legal and organisational frameworks for land management [25]. Using the legitimacy of tenure, the VGGTs specify that the frameworks should provide non-discriminatory laws and promote social equity and gender equity by providing adequate protection for women with the enforcement and implementation of laws that recognise women’s tenure and land rights [25]. All these recognitions promote action that is aligned with human rights principles.

Due to pressures for land that are differently felt in rural and urban areas, RLM is becoming more and more necessary [27]. Person-to-land relationships, such as access, use, and ownership of land, are impacted by the differing needs of the urban and rural contexts [27]. RLM was designed to address needs while taking into account such contextual differences. Legitimate tenure and land rights of the most vulnerable and marginalised people are acknowledged for urban, peri-urban and rural areas. Although the principles of RLM align with human rights principles, violations of human rights principles are still increasing [26]. This may be addressed most effectively through constitutional change which directs all legislation and processes within a state. Changes to LASs and their legal frameworks may then result, leading to more effective RLM and VGGT implementation, which still need to be improved. The human rights-based approach to responsible and democratic land governance is advocated [6, 26].

4. Methodology

This study employed a desktop examination of secondary data and a text-based approach to identify gaps in land reform by consulting a variety of secondary data sources, including peer-reviewed journal articles, conference papers, PhD theses, books, and briefs on policy concerns. These sources discuss issues that are unique to the SSA environment, such as land reform, human rights, the rule of law, and legal pluralism. Secondary data sources on the topic of LAS reform, land tenure reform, legal frameworks, cadastral systems, human rights, legal pluralism, rule of law, and land laws were included in the subject search. The sources used contained records created after 2010.

The following search criteria are used to locate sources:

Search terms for peer-reviewed journal publications, conference papers, PhD theses, books, and briefs on policy topics included land, LAS reform, land tenure reform, rule of law, human rights, and legal pluralism, utilising JSTOR, ScienceDirect, Springer Link, and Google Scholar. Literature is restricted to works published in English. Peer-reviewed journal articles, conference papers, doctorate theses, books, and briefs on policy concerns are among the publications. The sources emphasise SSA and other emerging settings.

A final list of 16 publications was chosen by using a saturation sampling logic and reading the title and abstract. During the sampling process, new categories for texts that dealt with human rights and constitutions but were not specifically about land emerged. The sources were deemed enough to satisfy the research purpose since adding more sources is unlikely to have an impact on the study’s findings.

NVivo was used to code and categorise the source documents, aiding in data transparency and the accuracy of the conclusions. NVivo is a multitasking program that enables academics to interpret dense qualitative data. The procedure makes it possible for additional researchers to conduct similar study. There was information coding and categorisation done. Coding is the process of identifying important themes and briefly summarising them [28]. Similar codes are grouped into concepts, and concepts are divided into categories to pinpoint literary themes.

The original text was imported into NVivo 12 and categorised under the headings of legal pluralism, human rights, and rule of law. Human rights, the rule of law, and legal pluralism are explored in line with the research’s main focus on the country in question’s constitution. These components are distinguished in the literature by distinct colours through coding. Potential indicators that could be used to assess the LAS from a constitutional (aspect) perspective emerged during the coding process, along with the elements. Section 6 provides a description of these indicators.

5. Evaluation framework for land administration systems and their legal frameworks in Sub-Saharan African countries

A constitution should express explicitly how it addresses human rights, the application of the rule of law, and the recognition of legal pluralism in respect of LASs [29, 30]. The supreme law of any nation is its constitution. This directs national land policy and land law which may not violate constitutional principles [2, 31, 32]. The intersection of the legal, political, and social systems in relation to land, which is of huge importance to societal stability and advancement, should be outlined in a country’s constitution [33]. Figure 1 illustrates the role of a constitution in a national LAS. At the apex of the triangle is the constitution. Land policy and land law must be drafted to be in line with constitutional principles and thus falls one level down. These, in turn, direct land administration and management whose structures and processes must also be in line with constitutional principles. It is clear that constitutional amendment may have far-reaching consequences in LASs reform. Constitutional amendment to recognise the rule of law, legal pluralism, and human rights should ensure that these are delivered through the LAS.

Figure 1.

LAS and their legal frameworks: Human rights, the rule of law, and legal pluralism in relation to a constitution [2].

The rule of law, legal pluralism, and human rights are the three tenets of constitutions that are identified and explored (see Figure 1). Several SSA constitutions uphold the rule of law and human rights, yet there is room for improvement in terms of acknowledging the realities of legal pluralism [29]. Breaches of human rights continue to be linked to land tenure and rights disputes, even where human rights are promoted in SSA [26]. Every nation’s constitution should include provisions for LAS reform, with state-citizen property relations serving as its foundation [34]. Constitutional change should address human rights, the rule of law, and legal pluralism if it is to be effective, long-lasting, and meaningful.

A conceptual framework that includes the constitution at the apex of the triangle, as illustrated in Figure 1, expands the ‘3S’ framework of success, sustainability, and significance developed by Hull [35]. The potential indicators relating to this additional level are therefore aligned to whether the principles of human rights, the rule of law and legal pluralism are embedded in the constitution and thus act as a directive for land law and policy as well as land management and administration. The subsequent sections discuss these proposed indicators in detail.

6. Human rights-based approach for improving responsible land management

The human rights-based approach (HBRA) with respect to the development of land is explained in the first part of this section. The second part describes reforms to strengthen RLM in the context of LASs and their legal frameworks.

The HRBA is outlined in the United Nations Common Understanding (UNCU) [1, 36]; three conditions should be satisfied. Human rights principles should inform all development initiatives, programmes should seek to improve the capacity of duty-bearers to maintain their obligations, and rights-holders to exercise their rights. These three requirements for understanding the HRBA to development are encompassed in the human rights, the rule of law and legal pluralism conceptual framework developed in this chapter. The human rights, the rule of law and legal pluralism conceptual framework furthers the realisation of development goals and is guided by human rights principles (see Table 2). It also contributes to improving duty-bearers’ obligations and right-holders’ claims. These requirements of the human rights principles are discussed below.

Elements	Potential indicators
Human rights	Few or no forced evictions Expropriation with adequate compensation Records of registered and unregistered land rights protection against state interference and powerful groups Recognition of indigenous laws Non-discrimination and human dignity Equitable rights and tenure Equitable access to land An integrated and sustainable approach to land administration.
The rule of law & legal pluralism	The clarity of the law Availability in a local language Enactment through democratic procedures Substantive demand (civil and political rights, justice, and social welfare) Accommodation of social rules and protection of social tenures The exclusive power to customary institutions Recognition of customary law Local dispute mechanisms and social justice Devolution of powers Hierarchy, and self-determination.

Table 2.

Constitutional provisions relating to legal pluralism, the rule of law, and human rights [2].

There are four distinct ways to implement development using a HRBA [37]. These are: as a set of normative principles to guide development; as a set of instruments to develop assessments, checklists, and indicators against which interventions may be assessed; as a component to be incorporated into programmes; and as the underlying justification for interventions to strengthen institutions, such as whether to increase the advocacy skills of organisations.

Human rights are put at the heart of development by providing a framework through the HRBA for development [37]. In development processes, there are winners, but there may also be losers due to power imbalances and potential disempowerment [12]. Reform may entail shifting power dynamics where these are negative, empowering marginalised groups, and combating injustice and exclusion [38]. Creating a rights-based approach to development entails transferring authority to the beneficiaries of a development initiative and also to rights-holders [12]. This empowers beneficiaries and rights-holders; consequently, a state is under greater pressure to fulfil its obligations to citizens [12].

A human rights tradition enjoins states to be duty-bearers. Individuals are holders of rights, not just recipients. Governments have a responsibility to respect, preserve, and fulfil people’s human rights as service providers and duty bearers. With respect to Nigeria, the fundamental rights of citizens are outlined in Chapter IV of the Constitution of the Federal Republic of Nigeria [11]. Although the Nigerian State is obligated to uphold and protect human rights, in practice it falls short. Section 7 (2) of the Constitution of the Republic of South African, 1996, specifies the duty to respect, safeguard, and fulfil human rights. Moreover, Section 9 (2) mandates that services be promoted that help Disadvantaged persons assert their claims which promote equality.

The duties of states are discussed below [12]. A state should

1. assure that all rights can be enjoyed without being subjected to discrimination,

2. promote moving swiftly towards the full realisation of economic, social, and cultural rights,

3. refrain from taking any actions that would prevent the full realisation of economic, social, and cultural rights,

4. use all of the resources at its disposal to fulfil duties; giving priority to helping the most disadvantaged groups, and

5. ensure that a minimum core commitment is met in order to satisfy the minimum requirements of each right.

Suppose that a state fails in these duties? In such a case, the HRBA emphasises the accountability of policymakers and other role-players whose actions can affect people’s rights [39]. Accountability in this regard requires fulfilling three conditions: responsibility, authority, and adequate resources. Responsibility means that the state should accept their obligations. Authority means that the state has the right to carry out the obligation. In addition, the state needs to have the necessary supplies to act on their responsibility.

Accountability and participation are essential to a state pursuing a HRBA to development that includes the people in the process [12]. This aims to empower citizens to recognise and claim their rights rather than relying only on the state assessing their needs. This takes place simultaneously with duty-bearers honouring their responsibilities. This fulfils the vertical obligation [37]. In realising human rights, a community needs to be empowered to take responsibility for identifying their needs and taking steps to have these needs met. This meets the horizontal obligation in a constitution [12]. Community participation in development processes puts pressure on a state to fulfil its vertical obligations [12].

Human rights to land (land access) are globally contested and not recognised. A human right to property protects a person against state intervention and has nothing to do with how a person interacts with land. Instead, it concerns how a person interacts with the state [40]. Protection measures should focus on curbing illegitimate and illegal state meddling and coercive influences from powerful elite groups [40].

Both substantive and procedural aspects [40] of human rights concerning LASs and their legal frameworks should be included in constitutions [2]. Substantive aspects include the respect for land rights, whether registered or unregistered or extra-legal, individual or communal. These should be reflected in the constitution of every country [40]. Both in terms of legislation and customary law, land tenure and land rights should be defined in constitutions [ 6, 12]. How land tenure and land rights are constitutionalised for achieving HRBA to land development in SSA is of primary importance to peri-urban development [12, 41].

A state should perform both positive and negative obligations with regard to land tenure and land rights [42]. The adoption of a legal framework that accommodates legal pluralism is required. Citizens should have the right to access land, with adequate land tenure and land rights, without discrimination in terms of customary law [2]. Negative obligations include that a state refrains from acquiring land without permission, engaging in forced evictions, and enforcing unreasonable land use restrictions [43]. There should be an explicit clause in the respective constitution specifying sufficient compensation to cover all forms of property deprivation [34]. Human rights can be violated when a state fails to provide adequate compensation [34, 40]. The expectation of citizens is that their state will not deprive them of land rights for arbitrary reasons unrelated to universally applicable laws [2]. Such trivial defences might be based on social constructs such as status, gender, or ethnicity [40]. A state’s primary duty is to respect, defend, and advance the land tenure of its residents in order that they may exercise their land rights. A state may recognise access to land as a human right, but states are not compelled to provide access to land for all because the premise of the positive responsibility calls for a state to regulate rather than do something. Instead, states are supposed to safeguard landholding [40].

Strengthening RLM requires a HRBA to development. In designing or reforming LASs and their legal frameworks, the indicators as to whether human rights principles are enshrined in a country’s constitution will reveal possible improvements in this regard. For instance, the Fundamental Rights of citizens are specified in Chapter IV of the Constitution of the Federal Republic of Nigeria. However, these Fundamental Rights still need to have human rights principles of LASs and their legal frameworks embedded. Section 43 gives citizens the right to own immovable property anywhere in Nigeria. In contrast, Section 44 (1) says that no such moveable or immovable property may be compulsorily acquired without following the prescribed law. In addition, prompt payment of compensation is required when a citizen’s land interest is compulsorily acquired. This Chapter of the Constitution of the Federal Republic of Nigeria needs to incorporate human rights principles in order to enhance the significance and sustainability of the Nigerian LAS and its legal frameworks.

7. The rule of law and legal pluralism in improving responsible land management

The rule of law and legal pluralism are identified as operational and structural principles of human rights in Section 1 of this chapter. Hence the need to discuss this duo in terms of its twofold effect in achieving RLM through LASs and legal reform aligned to human rights principles.

Based on theoretical underpinnings and actual applications, the rule of law and legal pluralism are normative concepts in non-Western law, especially in Sub-Saharan Africa [44]. Both play a role in the instrumentality of law and in legal institutions and processes [44]. Successful constitutional states share cultural commitment to the rule of law [45]. The areas embodying conflict and opportunity in statutory legal reform that begin with constitutional reform are described by Schmid [46] and Berman [47] as being part of legal pluralism.

To describe the rule of law, thinner and thicker ideas are crucial [48]. The idea of the thinner means that the law must be followed and obeyed by both citizens and public servants [48]. Democracy and human rights are not included in the minimalist definition of the rule of law used in this section, which means that since law is the foundation of governance, it should be accessible to the public, consistent, and non-contradictory [48]. The process of law-making and operation should be inclusive in a thicker conception of the rule of law. This should also include substantive content relating to social justice, constitutionality, and good governance [44]. Without a written and unambiguous law, the legitimacy of states and institutions may be called into question, according to the thinner definition of the rule of law [49, 50]. When institutions adopt a thicker understanding of the rule of law, they are more likely to safeguard the interests of all land rights holders.

Social justice can be used as a gauge of the quality of state service delivery. Thus, a constitution that reflects a thicker conception of the rule of law is expected to advance social justice more than one that reflects only the thinner conception [51]. It is recommended that the rural and peri-urban population receive assistance in their quest for social justice [52]. In recognition of the right to culture, a constitution should acknowledge and preserve customary law and the system of customary justice [2].

Those who challenge the necessity for legal pluralism in land administration use the hierarchy between state and non-state actors to argue against a positive role of legal pluralism in a post-colonial constitutional state. It is argued that customary law in land administration is suppressed using statute law and that there is no true legal pluralism [2]. Others argue that all legal regimes are by necessity plural [2].

Legal pluralism is first described based on studies on land disputes [53]. The categorisation of legal pluralism on a scale of strong to weak is advocated by its supporters [54, 55]. Strong legal pluralism is when customary, indigenous, and religious laws are used in land administration without state recognition [56]. State recognition exists under the weak categorisation of legal pluralism and may be backed by the law (de jure) as well as taking place extralegally (de facto) [see also 42]. In weak legal pluralism other laws and state agencies promote the constitutional enshrinement of customary law [57].

The post-colonial state’s reluctance to recognise collective tenure in its constitution is a significant legal exclusion [58]. Land in Guyana must belong to the tiller because it is for communal use [59]. Since 1994, South Africa’s land policy has evolved from the “land to the tillers” principle proposed in the African National Congress’ Freedom Charter of 1955 to one that is more convoluted [60]. The post-colonial state constitutions should uphold the ideals of human rights and include democratisation, agricultural reform, and restitution [61, 62, 63]. To recognise legal pluralism within a legal framework [64], the human and social rights provisions of a constitution, such as the recognition of customary law, are crucial. The significance of the constitutional connection between customary law and cultural rights should be emphasised [65].

A HRBA to LASs using the rule of law and legal pluralism will shift focus away from a legal framework focussed on statutory law and a market-based approach to land access and land value. It will likely shift towards one that acknowledges customary law and is likely to include a socio-institutional approach to land access and value [66]. Legislation can also recognise customary law [29, 66]. This process is termed codification – a process that is not value-free. Customary land laws were developed and continue to change as a result of social processes and social constructions. These are context-specific and constantly alter in response to changing society [67, 68, 69]. Customary land laws become less flexible and less nuanced once customary land law is codified in legislation [2]. They also then lose their essential characteristic of adaptability.

Alden Wily [70] advocates a pro-poor approach to customary rights which supports a HRBA to land value and land access — this protects social tenure. The reasons for pursuing a pro-poor policy for customary rights are [70] that the majority of people in the customary sector are poor (75% according to international measurements [70]). Also, the poor are most dependent on shared natural resources. These are the easiest for states and private sector organisations to appropriate. Not only state institutions, but also local elites have been shown to manipulate customary norms in their favour at the expense of customary (poor) societies [70]. Elites are often able to avoid the recognition of customary land rights [70].

Decentralisation of land administration from state to local, possibly non-state, entities is made possible by a HRBA for development (see [29, 71, 72]). Where decentralisation is employed, local-level land administration systems could be electronically linked to a national recording system for security purposes. A flexible, simple, gendered [73] and affordable system for maintaining land rights is necessary in an uncertain environment to secure the land tenure and rights of people, families, and communities that possess unregistered land rights and interests [73, 74].

8. Conclusion

This chapter focuses on the reform of LASs and their respective legal frameworks through embedding the principles of human rights, the rule of law, and legal pluralism within constitutions, in order to strengthen RLM. The chapter develops a conceptual framework for assessing a constitution with respect to these principles in the context of meeting the land tenure and land rights needs of peri-urban and rural residents. This considers customary law as an important aspect that should be explicit in a constitution. Recognising the significance of this can enable reforms that last and deliver on the identified reform goals over time.

Adhering to the HRBA for strengthening RLM empowers the customary land administration legal framework, which will provide for local land management. This is expected to reduce forced evictions, provide adequate compensation when land is expropriated, record land rights and interests, whether registered or unregistered, and protect land rights holders against interference by the state and powerful groups. Strengthened land tenure and rights of access to land are more likely to be achieved, while indigenous laws in land administration are expected to be promoted.

Principles of human rights, the rule of law, and legal pluralism align with the objectives of RLM in addressing pro-poor objectives. The significance and sustainability of LASs and their legal frameworks should be at the forefront of the reform of LASs and associated legislation, especially to address the tenure insecurity of rural and peri-urban dwellers. Constitutional reform should lead the way through consideration of the tenets of human rights, the rule of law, and legal pluralism.

Acknowledgments

Kehinde Babalola appreciates the financial assistance granted by the FIG Foundation PhD Scholarship and the International Postgraduate Funding Office of the University of Cape Town. This chapter is a revised version of the authors’ conference paper, declared the best article in September 2022 by the International Federation of Surveyors (FIG).

Conflict of interest

The authors declare no conflict of interest. The funders had no role in the study’s design; in the collection, analyses, or interpretation of data; in the writing of the manuscript, or in the decision to publish the results.