Applying Property Rights Theory to Africa: The consequences of formalizing

informal land rights

Sandra Fullerton Joireman

[email protected]

Prepared for the 2006 meeting of the International Society for New Institutional
Economics in Boulder., Colorado. A longer version of the paper is available from the
author on request.

1
 Applying Property Rights Theory to Africa: The consequences of formalizing

informal land rights

Sandra Fullerton Joireman

Literature in the field of economics reveals the accepted wisdom that clearly

defined and enforced property rights contribute significantly to economic development

(Acemoglu, Johnson, and Robinson 2004; De Soto 2000; Libecap 2003; Norton 2000).

Anthropologists (Berry 1992; Chanock 1991; Platteau 1996) and political scientists

(Fukuyama 2004; Weimer 1997) have also noted the importance of property rights in

issues of economic and political development. Secure property rights encourage people

to invest their resources and protect their investments against expropriation. Scholars

have argued that economic efficiency requires a clear definition of the rights of ownership,

contract and transfer (Johnson 1972). Ambiguity in the definition or enforcement of any of

these rights leads to an increase in transaction costs in the exchange as well as residual

uncertainty after any contract.

Economic arguments for stronger property rights correspond with a demand for

clarity of property rights by people across the African continent. Evidence to this

demand is present in the plethora of legal disputes started in national courts, addressed in

alternative dispute resolution bodies and through local conflict resolution mechanisms

(Deininger and Castagnini 2004; Fenrich and Higgens 2001; Human Rights Watch 2003;

Joireman 1996; Toulmin, Lavigne Delville, and Traore 2002). Legal disputes heard in

national courts represent a costly allocation of state resources to the adjudication and

enforcement of ownership.

2
 If policy-makers and people in both rural and urban communities across Sub-

Saharan Africa believe that well-defined property rights are important then why have

they been so difficult to implement? Is it simply a problem of governance, as I have

argued elsewhere (Joireman 2000)? Governance may be one part of the problem, but

governments that have in good faith tried to implement new property rights and faced

limited success, such as those in Kenya and Uganda, suggest that we might look further

for more complete answers.

In the following discussion I will address two major impediments to the

implementation and enforcement of property rights on the African continent. My focus is

on the enforcement of law because this is the area of greatest challenge for many states.

Countries across the continent have exerted great effort and resources writing property

and inheritance laws that are conducive to economic growth. This is a necessary but

insufficient means of clarifying property rights. Effectively implementing laws that are

passed and then utilizing state resources to ensure their enforcement, particularly in areas

far from the center of power in a country is a pressing challenge to almost all African

states.1 This paper will seek to elucidate these issues by first giving some background

regarding the issue of property rights in Sub-Saharan Africa and their interaction with

customary law. A discussion of current realities in the allocation of property according to

customary law will follow. This leads to the second issue, the particular position of

women in African economies and culture, which is then linked to property rights in the

subsequent section. The paper will conclude by addressing how theories of property

rights depart from realties in Sub-Saharan Africa and what the potential effects of this

1
Ideally, law relating to property rights develops organically from the bottom (practice) up to statutory law.
There is ample evidence, some which will be discussed here, that the imposition of legal reforms from the
top down will not achieve the desired outcomes.

3
disconnect might be.

Property Rights and Customary Law

Customary law is a body of rules governing personal status, communal resources

and local organization in many parts of Africa. It has been defined by various ethnic

groups for their internal organization and administration. Customary law exists as a

second body of law (in addition to statutory law) governing citizens in countries of Sub-

Saharan Africa. It has the greatest control over people in rural areas, but also affects

urbanites as it regulates issues such as marriage and inheritance. In contemporary Sub-

Saharan Africa it is estimated that 90% of the land is held under forms of customary

tenure and 10% formalized title (Deininger 2003: 78).2 Since colonial times customary

law has existed as an alternative system of organization to national, statutory law,

administration and inheritance. However, it is important that we understand that

customary law is not a set of primordial principles or a body of unchallenged traditions

that predate colonization.

Customary law regulated access to land for Africans during the colonial era.

Virtually every colonized country had two systems of land holding, one which was

regulated by the state and one by customary law and traditional leaders.3 The land

regulated by the state was privately held by citizens of the metropole, settlers and

sometimes by Africans; but much of the land was governed by customary law since at

2
Even if these percentages are exaggerated, they mark the fact that customary control over land as
significant .
3
The exception would be India where there was not such a pronounced dichotomy between the property
rights of the colonizers and those of the colonized. That said, there was also not equality. For more
information see Joireman, Sandra F. 2006. The Evolution of the Common Law: Legal Development in
Kenya and India. Commonwealth and Comparative Studies 44 (2).

4
independence few countries had the capacity to embark on the Herculean effort of

unifying the disparate land holding institutions, even if there was the desire to do so.

Instead an institutional lock-in occurred and the existing, bifurcated, land holding system

remained intact with all of the resulting problems of definition and control.

Divergent Property Rights

Privatized and customary land tenure institutions articulated two very different

bundles of rights to land. In the colonial era this dual system followed racial lines; natives

used land, white colonizers owned it. Since colonial governments did not find

conceptions of land holding that were equivalent to that of fee simple or exclusive land

ownership among colonized peoples, it was assumed that landholding must be vested in

the community.4 Africans maintained rights to land as groups and those groups were

overseen by a chief who controlled land allocation. The belief in African communal land

rights was supported by two linked administrative impulses of the colonial government 1)

the colonial need to expropriate land and govern its occupation and exchange with some

degree of legality (even if this was merely a creation of their own administrative fiat);

and 2) the necessity of space for the indigenous population to live and to farm. Under the

demands of indirect rule, the best type of arrangement to meet the second need required

4
It would be more accurate to say that community rights and individual rights in pre-colonial Africa were
not mutually exclusive. The conception that Africans held all land communally was incorrect in two ways
1) it minimized the individual rights to land which existed short of alienation and 2) it disregarded the
multiple and overlapping forms of rights that might exist among separate individuals to the same plot of
land. Take as an example a farmer cultivating a crop near the side of a stream. She has been given the
right to use the field by the chief and to harvest the crop that she grows there. She anticipates maintaining
the use rights to this field well into the future. However, there are several fruit trees on her farm land which
belong to someone else. The owner of the fruit trees has the right to harvest his fruit and look after his tree.
There may also be another person in the area who has the right to graze cattle or goats on the crop residues
after the field is harvested. Here we have a complex array of long-term use rights (the farmer), ownership
(the tree owner) and seasonal privileges. Not all of these rights are equally protected in a system that
assumes group rights to resources; the rights of the individuals tend to be minimized or overlooked.

5
no administrative oversight by colonial officials, hence the creation of native reserves or

customary tenure areas. These areas could be administered by “traditional” leaders

without requiring expatriate civil servants working in the adjudicative and administrative

institutions of the colonial state. Where traditional rulers could not be found, they were

created. Where their previous powers did not relate to the administration of land, they

were given new powers. Firmin-Sellars notes the complicity of the colonial state in

supporting property rights claims proffered by traditional leaders when they served the

goals of administration and control. Her interesting study of Ghana also illustrates that

different versions ‘customary law’ were presented to colonial officials for their support

(Firmin-Sellers 1996).

In recognizing communal rights to land the colonial governments established an

institutional system that either governs directly or significantly influences the allocation

of land in many African countries to the present day. There are three effects of

customary law as it pertains to property rights that are worth noting; 1) the creation of an

understanding of land ownership as communal; 2) the creation of path dependent

institutions that are resistant to change; and 3) the enrichment and empowerment of those

individuals controlling the customary tenure systems.

Land Titling: Nettlesome and Unnecessary?

In areas where land is relatively plentiful, customary law effectively regulates the

distribution of land in a way that has fewer transaction costs than going a more

bureaucratized registration system, if such a separate system exists. Where land is

plentiful, privatized, national systems of property rights show few benefits over

6
customary systems of land rights, so even when new systems of property rights are

adopted from the top down they are unlikely to be fully implemented. Jean Ensminger

has observed that

"Increasing evidence from Africa is calling into question …: (1) whether

the gains of new property rights justify the transaction costs and (2)

whether the fit between customary tenure, social norms and the new

property rights is sufficient to lend legitimacy to their enforcement"

(Ensminger 1997: 168).

Perhaps even more unsettling are assertions that rather than promoting security of

tenure titling efforts can lead to higher levels of conflict over land and thereby reduce

productivity (Deininger and Castagnini 2004). In areas where the value of land is

relatively low, the transaction costs of land registration appear to be too high to make it

worthwhile for people to register their land through formal channels. After the Ugandan

Land Act of 1998 made it possible for people on customary land to title their land and

exchange it through governmentally recognized methods, individuals in land abundant

areas still chose to go through locally recognized institutions of exchange rather than the

legal system to document land transfers. Their land was sufficiently secure to preclude

any need to go beyond the recognition of members of their local government in a land

exchange. Until the value of land or its attributes increases sufficiently to offset the

transaction costs, titling and more formalized land transfers will not be embraced

(Anderson and Hill 2004; Barzel 2002).

But not everywhere is land abundant. In areas of Africa where land is scarce and

population densities are higher, land allocation is more contested, conflict over land is

7
frequent and resort to government bureaucracies for dispute settlement and recognition of

land transfer is more likely. Consistent with the economic literature on institutional

change, ample evidence exists demonstrating the breakdown of institutions and the

innovation of new ones when land values increase in Africa (Bruce 1976; Joireman 1996;

Joireman 2000). In areas where land has a higher value, customary land ownership

patterns can empower and enrich those who make decisions regarding its allocation.

“Authority in land whether vested in the chiefs, or in the government officials and

political leaders, can in turn, lead directly to private economic benefits for these actors,

derived from land accumulation, patronage and land transactions" (Toulmin and Quan

2000). Traditional leaders can practice the politics of exclusion, denying resources to

groups with less political power, such as divorced women and migrants, who are easily

labeled and denied access to land communally held.5

There is a tremendous difference in the treatment of land in urban and rural areas

in Africa. In rural areas control over land is a means of gaining food. In urban areas

control over land is control over wealth. In Uganda conflict over land and corruption

with regard to the administration of land in the capital city is a matter of daily news. In

one high profile case, the Kampala City Council was accused of obtaining title to land on

which public schools were present, then selling the titled land. This particular case led to

a public statement by the Minister of Local Government, that anyone dealing with the

5
For a recent example of precisely this problem see the work of Marja Spierenburg on the Mid-Zambezi
Rural Development Project in Zimbabwe. In this case it was the government of Zimbabwe that in the
1990s recognized an area of communally held land in Dande. They sought to reallocate the land in a more
ecologically sustainable way that would be conducive to agricultural development and the resettlement of
families living on former European-owned land. In the process of doing so they effectively stripped land
rights from migrants who had been living in the area peacefully and cooperatively for years Spierenburg,
Marja J. 2004. Strangers, Spirits, and Land Reforms: Conflicts about Land in Dande, Northern Zimbabwe.
Boston: Brill.. By not recognizing that migrants were part of this community, and instead adhering to the
old idea of communally held lands belonging collectively to one people group, the government repeated the
error of colonization.

8
Kampala City Council does so “at his or her own risk” (2005)! In the case of urban

lands in Uganda, there is no doubt that the value of formal titling offsets the costs

incurred.

Current economic theories such as that of Hernando De Soto (2000), would posit

that customary land holding systems are less conducive to economic development

because they do not give those who are present on the land the power to acquire title and

mortgage their possessions. While this idea is true for areas in which land is in high

demand, in land abundant areas, any effort to formalize title may be undesirable because

of increased transaction costs and difficulties in enforcement therefore title would only

bring a limited benefit that would not outweigh its costs.

Women and Property Rights

Women in Sub-Saharan Africa face a distinctive social dilemma. Because of their

labor, they are the mainstay of the agricultural economies, yet legally, their position is

equivalent to those of women in Europe during the Victorian era.6 Women in Sub-

Saharan Africa do not share the same legal protections of their property and inheritance

rights as men, or women in other parts of the world such as the Global North or Latin

America.7 They face difficulty in representing themselves economically and legally, for

example in selling their own produce or in buying new fields on which to grow crops.8 In

6
In England women were not given co-ownership right to the homes in which they lived until The
Matrimonial Homes Act of 1967 which required that a wife protect her right to reside in her home through
registration. Double check this and expand if necessary
7
In Latin America women have more legal protections. This, combined with the absence of a competing
system of customary law had made their situation with regard to property ownership better than that of
women in Sub-Saharan Africa. See Deere, Carmen Diana, and Magdalena Leon. 2001. Empowering
Women: Land and Property Rights in Latin America. Pittsburgh: University of Pittsburgh Press.
8
In Uganda, while women grow food crops, many ethnic groups view it as the job of the husband to sell
the agricultural produce at the market.

9
Rwanda, women were not recognized as full citizens until the 1998 constitution.

Previous to that point they were legal minors. If a Rwandan woman wanted to buy a plot

of land, a building or even a home she had to either do so in the name of a male relative

or establish a corporation which could act as a legal person for her.

Even when law enables women to operate as legally recognized economic actors,

social impediments to their doing so are abundant. In Western cultures most married

women would not own property individually, but jointly with their husbands. In Africa,

the idea of co-ownership is an alien one. The idea of a woman acquiring property in her

own name during marriage is incendiary as it implies that she is not committed to the

husband or his family.9 In the few African countries where there are laws providing for

the co-ownership of marital property such as the family home or other assets; these laws

have proven very difficult to enforce because they go against the grain of cultural

practices (Fenrich and Higgens 2001; PlusNews 2006).

The position of women in Africa is so unusual as to merit special consideration.

Because of the women are supposed to provide food for their families either through their

farming or waged employment, they are involved in the market and have obligations in

the realm of production as well as reproduction.

“A distinguishing characteristic of SSA economies is that both men and

women play substantial economic roles. Data compiled by the

International Food Policy Research Institute (IFPRI) indicate that African

9
This point was driven home to me in conducting interviews on the new land law in Uganda in 2006. I
had an interview with a woman who was the regional gender officer for her part of the country, a fairly
elevated position and one in which she was required to assist women in defending their property rights.
She told me that "Women can't own land and have stable marriages." This is a sentiment that I had heard
before in many different contexts. See also Human Rights Watch. 2003. Double Standards: Women's
Property Rights Violations in Kenya. In Kenya. New York: Human Rights Watch.

10
 women perform about 90 percent of the work of processing food crops and

providing household water and fuelwood, 80 percent of the work of food

storage and transport from farm to village, 90 percent of the work of

hoeing and weeding, and 60 percent of the work of harvesting and

marketing” (The World Bank Group 1999).

In terms of property rights to land, women typically have secondary rights to land

access, meaning they can farm land because they have married a man who is of a

particular kinship group or they have children who are seen as belonging to a particular

kinship group (Bikaako and Ssenkumba 2003; Wanyeki 2003; Whitehead and Tsikata

2003; Yngstrom 2002). Women do not receive land access because they are not

recognized as having autonomous membership in a particular group and therefore have

only the right to till land owned by the group.10 Because they marry and go to live with

their husband’s family, women in most parts of East Africa are not viewed as having

membership in their lineage, but are seen, at best, as a member of their husband’s lineage

and at worst only as a means of perpetuating the kinship group.11 In West Africa and

among some ethnic groups in other parts of the continent, women are never considered to

have left their natal families and they have no share in his property even after marriage.

10
Yngstrom argues that in Tanzania this was not always the case, that women used to be able to claim land
from their families, but secondary rights became standard practice by the late 1950s when men began to
‘assert greater control over land, by limiting land transfers made by lineage members to female family
members” Yngstrom, Ingrid. 2002. Women, Wives and Land Rights in Africa: Situating Gender Beyond
the Household in the Debate over Land Policy and Changing Tenure Systems. Oxford Development Studies
30 (1):21-39.
11
That said, it would be wrong to suggest that in all circumstances under customary tenure women have no
access to land through their own kin group. Often they will have some residual claim to land in their natal
kinship group or through wider social ties Whitehead, Ann, and Dzodzi Tsikata. 2003. Policy Discourses
on Women's Land Rights in Sub-Saharan Africa: The Implications of the Re-turn to the Customary.
Journal of Agrarian Change 3 (1 and 2):67-112.. However, this is more the exception than the rule.

11
 There is a fundamental conflict between gender equality and the upholding of

traditional customary law regimes – nowhere is this more apparent than South Africa

where there has been overt contestation over social rights as a result of constitutional

guarantees of gender equality. In South Africa women are guaranteed equal rights under

the law by a constitution which also recognizes the rights of traditional leaders to allocate

land. Given that in customary tenure systems women have no access to land in their own

right, it was inevitable that a case would be brought on behalf of a woman denied access

to land. In South Africa the decision of the constitutional court in the Bhe case argued

that a woman must be allocated land by a traditional leader.12 However, the reason given

in the ruling was not that she had equal standing as a citizen of South Africa and a

member of that kin group, but rather that she had children that were members of that kin

group and their rights could not be denied. What was important in the Bhe case was that

the children happened to be girls. A decision that these girls deserve access to land

because they are members of the kin group, was an affirmation of their membership in

the lineage – a membership which was not previously explicit in the case of girls or

women. While case law is being developed in South Africa that moderates the

differences between constitutional and customary law, evidence suggests that widowed

and divorced women with children obtain land under customary land tenure systems

while women without children do not (Terrell 2005).

Inheritance

12
Bhe and Others v. The Magistrate, Khayelitsha and Others

12
 Women’s property rights and access to land are linked to inheritance patterns. Under

customary law girls tend to inherit less than boys, and often nothing at all.13 In a

polygamous household, if the husband, or head of household dies, any childless wives

will receive nothing and will have to return to their natal family. Because these women

have not provided the lineage with heirs they have no status and no further link to any

member of the lineage. Women with children are in a slightly less precarious position.

They are still not regarded as members of the lineage, however, if they are taking care of

minors who are, their use rights to their husband’s land and house will often be respected.

The evidence regarding women’s inheritance rights after the death of a spouse in

Africa is mixed. Examining the Kenyan case Aliber et al. note that most women are able

to hold onto their land after the death of a husband by turning to the community as a

whole to gain support in legitimizing the wife’s claim to the land. In their study, a

woman losing home and land after a husband has died is the exception rather than the

rule (Aliber et al. 2004). This would be consistent with the findings of Rose and

Khadiagala that women are able to negotiate customary law and maintain usufruct rights

to land through social networking (Khadiagala 2002; Rose 2002). However, the weight

of evidence seems to emphasize the vulnerability of women’s property rights after the

death of a spouse. Human Rights Watch has documented findings in Kenya that argue

that spousal loss of property is a frequent occurrence (Human Rights Watch 2003). This

is further supported by anthropological studies such as that of Verma among the Maragoli

13
This is true even in Islamic areas where sharia law controls inheritance for women. In Nigeria in the
northern states where sharia law is recognized, women still do not inherit as dictated by sharia law. The
reason given is that according to the Maliki school of sharia law Nigeria is an area in which Islam was
imposed by conquest and therefore some allowance for pre-existing customs, urf, must be allowed.
Abdullah, Hussaina J., and Ibrahim Hamza. 2003. Women and Land in Northern Nigeria: The Need for
Independent Ownership Rights. In Women and Land in Africa, edited by L. M. Wanyeki. New York: Zed
Books, Ltd.

13
(Verma 2001). In Uganda in 1995, FIDA reported that 40% of the cases they handled

were related to the harassment of widows and property grabbing by their husbands

relatives (Bikaako and Ssenkumba 2003: 250). Evidence from other parts of Africa

supports the finding that women’s property rights and use rights to land are insecure after

the death of a husband. This evidence is further detailed in the longer version of this

paper.

The theoretical and practical disconnect

De Soto has argued that “The only way to touch capital is if the property system can

record its own economic aspects on paper and anchor them to a specific location and

owner” (De Soto 2000: 63). His idea is that formalizing the informal property rights that

already exist will empower people with access to capital provided by way of mortgage

and sale. Yet, ‘formalizing the informal’ could have potentially disastrous consequences

where customary law regulates access to land and where the co-ownership of women is

not legally recognized or enforced.

In many African contexts where customary law is regulating the access to land,

formalizing existing property rights will effectively alienate women from access to

capital. This was precisely what occurred in the titling of land in Kenya. Under

customary tenure Kenyan women had use rights and 'considerable management control

over plots allocated to them by household heads'. When land was registered in the name

of the male household head they lost that control (Ensminger 1997). As long as land is

untitled women have usufruct rights. They may not be able to control all aspects of the

land use, but they also may have relative security of occupation as long as land values

14
remain relatively low. If there is an effort to formalize the informal customary law that

exists in Africa, the land becomes titled but not in the names of women.14 This makes

them vulnerable to loss of their use rights if those in whose name the land is titled seek to

sell or mortgage it without their consent.15 This dilemma would be surmounted by

national laws ensuring joint ownership of land.

The dual systems of law in Africa may have a positive benefit in allowing flexible

responses to regional and ethnic differences in custom. However, customary law

throughout Sub-Saharan Africa is inadequate for the protection of women’s property

rights in areas where there is a high demand for land. Formalizing customary law

without providing for joint ownership will undermine both the ownership and use rights

of those most involved in the production of food crops and other agricultural products.16

In summary there are two fundamental problems regarding women’s land rights in

many parts of Africa. The first is the absence of autonomous property rights to either

customary or privately held land and the second is the lack of enforcement of women’s

inheritance rights. In the first case the absence of law guaranteeing co-ownership is the

problem, in the second case the law exists in many places and is sufficient for the

protection of women and children, but it is sporadically enforced. Creating law regarding

co-ownership without effective enforcement of that law will not better the current

situation.

14
Either in their own name or jointly with spouses.
15
The Ugandan Land Act of 1998 has attempted to surmount this problem by requiring the consent of the
spouse on land sales. However, in a polygynous society it is relatively easy to get around this problem by
having another spouse sign the consent form, or even marrying another woman in order to ensure a spousal
consent.
16
John Locke in his Second Treatise on Government argued that property rights naturally accrue to an
individual as a result of the contribution of his or her labor Locke, John. 1764. Two Treatises of
Government. London: A. Millar et al. This idea is alien to the kinship based customary land institutions in
Sub-Saharan Africa in which a man may possess land but his children and wives are supposed to provide
the labor for the production of crops without gaining any interest in the land for themselves.

15
Enforcing Property Rights

Many scholars approach the issue of property rights assuming that legislative

decisions will be enforced throughout a country by states that have effective control over

the entirety of their territory. The belief that states automatically enforce decisions

regarding property rights leads to seriously misplaced policy initiatives that focus more

on the issue of law-making than on law enforcement or implementation.17 Absent a

strong local administrative structure, enforcement of laws regarding property is far less

certain and the transaction costs are much higher.

Enforcement of existing laws is a general problem in under resourced areas

(Boone 2003). Enforcement is a particularly salient issue with regard to the property

rights of women and migrants who are less powerful and more vulnerable to the

expropriation of their property should they face a major life change. In Namibia, the

Married Persons Equality Act of 1996 and the Communal Land Reform Act of 2002

protected women by allowing them to remain in their houses and on their land after the

death of a spouse. However, this legislation has had little impact as women do not know

their rights under statutory law and customary law continues to control the dispossession

of property (PlusNews 2006). The Namibian government has not made the necessary

investment in civic education to promote the enforcement of these laws. Without both

the laws in place and the education of legal and traditional authorities, women will

continue to face insecurity in their control over property.

17
Enforcement is dependent on a local administration that has the capacity to police and administer its
areas and a judiciary that is free to make decisions in accordance with the law.

16
Conclusion

Well defined and protected property rights are critical to achieving the best use of

resources and promoting the economic development of a country, though no one form of

property rights is best suited to all countries and contexts.18 In developing countries the

property rights of the poor must be adequately defined and protected so that they are able

to leverage the capital they have to take advantage of economic opportunities outside the

locus of family and community.

Where women are active participants in the rural economy it is important to

define and protect their property rights specifically and not to simply view them as

members of a household. Co-ownership of marital property is a place to begin in the

creation of new law, or the enforcement of co-ownership where laws protecting it already

exist. Where customary law governs land allocation, efforts must be made to ensure in

the process of codifying those rights, women are not completely without access to capital

in land. If customary law has been defined in such a way as to prohibit women’s access

to land or eliminate women’s ability to pursue title, then customary law must be changed

to bring it in line with constitutional provisions of equality. Since customary law is

typically uncodified it may be changed through the education and enlightenment of the

leaders who control land allocation and set the rules governing communal land holdings.

New laws designed to formalize informal property rights and free up capital for

the poor in Africa must give attention to both customary law and women’s property

rights. But law alone is not the solution unless it is combined with enforcement.

Effective law enforcement assumes that state strength is sufficiently capable of

18
Terry Anderson and Fred McChesney provide a comprehensive introduction to property rights and law in
a variety of settings. Anderson, Terry, and Fred McChesney. 2003. Property Rights: Cooperation, Conflict
and Law. Princeton, NJ: Princeton University Press.

17
penetrating into rural areas where conflict between statutory and customary law will be

most pronounced. It also assumes that there is an effective and independent judiciary.

With a few exceptions, state capacities in Sub-Saharan Africa do not meet this

threshold.19 Moreover, the property law that is most conducive to economic growth is

that which develops organically (Anderson and Hill 2004; De Soto 2000). Custom and

history in Sub-Saharan Africa have created a set of circumstances in which the most

beneficial types of property rights are unlikely to develop on their own due to preexisting

institutions of customary law. Under certain circumstances it may be necessary to

undermine customary law to promote an alternative understanding of customary land

ownership that protects women’s property rights. However, civic education campaigns

that emphasize the importance of women’s statutory rights to property may help as may

concerted efforts to educate traditional leaders (Strickland 2004) or other efforts that

could be made to strengthen the negotiating abilities of women so that they might make

the case for the particular set of property rights that would be most helpful.

19
For example, in East Africa Uganda and Kenya are adjacent to one another and have radically different
judicial capabilities. Judicial independence in Uganda is one of the most positive results of the
democratization process there, while in Kenya the judiciary has been notoriously corrupt and under the
control of the government. In both countries, however, state strength in the countryside is limited. In
Uganda the government barely functions in the northern parts of the country where a civil conflict has been
raging and in Kenya, the strength of the state in the West is certainly not what it is in the capital. Catherine
Boone and Jeffrey Herbst have both written about the challenges of local administration in African states
from very different perspectives. Boone, Catherine. 2003. Political Topographies of the African State:
territorial authority and institutional choice. New York: Cambridge University Press, Herbst, Jeffrey.
2000. States and Power in Africa: Comparative Lessons in Authority and Control. Princeton,, NJ:
Princeton University Press.

18
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