Realising Justice? Reflections on Negotiating Land Reform in Southern Africa

On 16 May 2016 the University of Edinburgh hosted a workshop funded by the British Academy and organised by Professor Anne Griffiths and the Benelex Project Research group, coordinated by Professor Elisa Morgera.

The full-day workshop addressed the issue of access to land as means to realise justice. The workshop intended to discuss four key questions:

1. the norms that underpin international and transnational governance regimes regulating access to and use of land and the extent to which they have an impact on individual countries’ jurisdictions on land;
2. who are the actors who are engaged in this field and to what extent do their perspectives overlap or conflict with one another when it comes to promoting equitable and sustainable governance over land;
3. what impact does globalisation have on the recognition of the legitimacy of plural orders, such as statutory, religious or customary law, and the authority that is accorded to them?; and
4. what are the most pressing challenges that counties face in administering land and implementing reform given the global pressures that are brought to bear by international and transnational agencies and institutions.

In this post, two visiting postgraduate students – Marghertia Brunori and Komlan Sangbana – offer some reflections from the day.

Marghertia Brunori

The four presentations of the workshop portrayed the same sensible question of access to land by four different angles, allowing to appreciate the subject in its multifaceted complexity.

The two morning presentations offered the picture of the synergies and evolutions of policies and regulations at international level on the issue, and described how the interactions of branches of law, together with the interpretative and progressive function of soft law instruments, allow to reconfigure the long discussed land question in light of the emerging scenarios and needs. On the one hand, the survey of the United Nations General Assembly Resolutions that dealt with agrarian question since the creation of the UN System allowed to put the question into a historical perspective, evidencing what is intrinsically enshrined in the matter and what on the contrary progressively contributed to enrich the subject of new considerations. On the other hand, the investigation on how the increasingly relevant concept of benefit-sharing can operate with regard to land matters offers an opportunity for international lawyers to collocate the transversal yet unitary subject of land tenure and access to natural resources in the broader debate of strengthening homogeneity in international law, with the objective of promoting justice by bridging different branches of international law.

While the reactions to the morning presentations brought the participants to interrogate about the meaning and the usefulness of abstract legal concepts such as legitimacy and overarching public interest, with the attempt of conceptualising access to land in the international law system, the afternoon panel brought the discussion on the empirical problems triggered by the land question. The first presentation brilliantly showed the discrepancies between the intention of land reform and its results, pointing out that the law cannot forget the social and cultural context in which it applies. The second presentation let the audience confront with the discouraging reality of a country like Zimbabwe, where a beautifully drafted constitution and land act is left on paper, because the unwillingness of the political power to implement the norms frustrates any hope of change. The two case studies raised the dilemma of how to reconcile the legal with the political world, and what are the instruments and the opportunities offered at the international, regional, national and local level to let a good law perform its aim.

The debate ultimately grafted in the participants a healthy awareness of what are the limitations of the law, but also the evidenced what are the opportunities deriving from this picture. As the current international community relies on national institutions to let the internationally achieved progress to be implemented on the ground, the findings of the workshop stress on the importance of reframing the process, harvesting the potential of local communities to create a collaboration between the local and the international level, and giving a stronger voice to the recipients of the efforts of realising justice.

 

Komlan Sangbana

The morning session enshrined the challenges related to the distribution of land benefices in the international legal system notably the identification of beneficiaries. The weakness of the legal system on these issues raises the importance of more research on broader concepts and legal mechanisms that can take into account the different type of beneficiaries. The afternoon session was very pertinent to understand the socio-political factors that contribute to the justice/injustice in land benefices sharing in Southern Africa.

The Botswana case, for example, underlined struggles between the customary norms and formal rules in access and uses of land. Instability in the land issues created by this struggle shows the need to understand Africa specificities in order to provide legal responses to improve the management of the land and guarantee a social peace. Therefore, the workshop offered guidance in terms of reflection for my future work on the relation between formal and informal rules in the management of water resources. Further workshops that examine the link between water and land would give a more holistic tone to the discussion around justice over natural resources.