Demystifying Contemporary Customary Land Tenure in Legally Plural Southern Africa

Abstract

In this article, we seek to redebate the question: what actually do we mean when we talk of customary land tenure system in the post-independence southern African region? We frame the debate within the concept of legal pluralism and apply a critical hermeneutic approach to analyse terms and vocabulary that are often used to construct the meaning and discourse of customary tenure in Africa. Hermeneutics emphasises the role of meaning in enabling us to gain knowledge or constrain us from gaining knowledge of phenomena, objects and concepts. We ask very serious, but sometimes unconventional, questions about the way the concept of customary tenure gets to be framed in contemporary writings. The questions include whether terms such as “right”, “property”, “communal” and “traditional” are appropriate descriptors to use in the domain of customary land tenure. Yet a more controversial, albeit very important, question we raise is whether customary land tenure system is, a priori, discriminatory to women. In the article, we make two major conclusions: first, contemporary customary tenure is a fundamentally bastardised version resulting from several initiatives of state intervention, and second, uncritical deployment of foreign concepts by researchers has significantly constrained our opportunities to understand what customary tenure is. In the light of this, we recommend that future research critically scrutinise the meaning of terms and the impact of state policies on customary tenure.