Land, Law and Politics in Africa: Mediating Conflict and Reshaping the State Abbink, G.J.; Bruijn, M.E
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Land, law and politics in Africa: mediating conflict and reshaping the state Abbink, G.J.; Bruijn, M.E. de Citation Abbink, G. J., & Bruijn, M. E. de. (2011). Land, law and politics in Africa: mediating conflict and reshaping the state. Leiden: Brill. Retrieved from https://hdl.handle.net/1887/18534 Version: Not Applicable (or Unknown) License: Leiden University Non-exclusive license Downloaded from: https://hdl.handle.net/1887/18534 Note: To cite this publication please use the final published version (if applicable). Land, law and politics in Africa Land, law and politics in Africa: Mediating conflict and reshaping the state Edited by Jan Abbink & Mirjam de Bruijn Brill Copyright page In memory of Gerti Hesseling [Photo: Dick Schuijt, 2007] Contents Figures, tables and boxes ix 1 Introduction: Land, law and conflict mediation in Africa 1 Jan Abbink 2 Partenariat et interdisciplinarité: La voie alternative de Gerti Hesseling et du LASDEL 14 Jean-Pierre Olivier de Sardan & Mahaman Tidjani Alou HISTORICAL AND CULTURAL ASPECTS / ASPECTS HISTORIQUES ET CULTURELLES 3 Cultural models of power in Africa 25 Walter van Beek 4 Human rights in the traditional legal system of the Nkoya people of Zambia 49 Wim M.J. van Binsbergen 5 ‘Sons of the soil’: Autochthony and its ambiguities in Africa and Europe 80 Peter Geschiere 6 How can Africa develop? Reflections on theories, concepts and realities 99 Patrick Chabal LAND ISSUES AND ECONOMICS / PROBLEMES FONCIERS ET L’ECONOMIE 7 L’économie sociale et solidaire pour stimuler le développement ascendant et endogène 117 Abdou Salam Fall 8 Land conflicts in Senegal revisited: Continuities and emerging dynamics 141 Mayke Kaag, Yaram Gaye & Marieke Kruis vii 9 ‘More punitive penalties should be given to urban farmers’: Laws and politics surrounding urban agriculture in Eldoret, Kenya 162 Romborah R. Simiyu & Dick Foeken 10 Settling border conflicts in Africa peacefully: Lessons learned from the Bakassi dispute between Cameroon and Nigeria 191 Piet Konings POLITICS AND CONSTITUTIONAL LAW / POLITIQUE ET DROIT CONSTITUTIONNEL 11 Democracy deferred: Understanding elections and the role of donors in Ethiopia 213 Jan Abbink 12 La production d’un nouveau constitutionnalisme en Afrique : Internationalisation et régionalisation du droit constitutionnel 240 Babacar Kanté 13 Le juge constitutionnel et la construction de l’Etat de droit au Sénégal 258 Fatima Diallo 14 Sur les traces du droit vivant dans le labyrinthe du droit foncier et des pratiques locales au Mali 287 Moussa Djiré THE CHALLENGES OF LAW AND CONFLICT / LES DÉFIS DE DROIT FACE AU CONFLITS 15 Effectuating normative change in customary legal systems: An end to ‘widow chasing’ in northern Namibia? 315 Janine Ubink 16 Decentralization and the articulation of local and regional politics in Central Chad 334 Han van Dijk 17 Conflict mobility and the search for peace in Africa 353 Mirjam de Bruijn & Egosha E. Osaghae Appendix: Bibliography of prof. dr Gerti Hesseling 367 List of authors 381 viii Figures, tables and boxes Figures 3.1 A model of power relations 28 Tables 9.1 Urban farmers’ perceptions of UA’s environmental impact 177 15.1 ‘Does Uukwambi traditional authority have written customary laws?’ by age group 324 15.2 ‘Does Uukwambi traditional authority have written customary laws?’ by gender 324 Boxes 7.1 Sortir de l’impasse par une inspiration écologique et une orientation pro-pauvre 122 7.2 Les mesures politiques de croissance inclusive 124 7.3 Création de la pénurie, résistance de la production endogène en Inde 126 7.4 L’éducation à la santé : Aussi un rôle des mutuelles au Bénin 129 7.5 VILLA EL SALVADOR AU PÉROU, le bidonville de l’espoir 136 ix 1 Introduction: Land, law and conflict mediation in Africa Jan Abbink This volume presents a wide selection of original studies on issues of law, land disputes and conflict (mediation), and the role of state agents and local actors in Africa in these matters. The focus is not on problematizing contestation and conflict in Africa as such but on analyzing how citizens, state institutions and other concerned (inter)national actors are working to find solutions to social disputes and threats to (violent) conflict that are part of socio-political life everywhere. The antagonisms and inequalities of class, religion and ethnicity in Africa are still serious and repeatedly generate violent conflict. Despite the con- tinent’s recent economic growth and development dynamics, these antagonisms are not only a source of enduring struggle, abuse and personal drama, they also engender transformative political and socio-economic processes. The growing body of scholarly studies that highlight these phenomena of conflict and their wider societal and political impact has greatly enhanced our understanding of the historical, cultural, psychological and socio-economic conditions involved. Academic research aims not primarily to offer ‘ready-made solutions’ to the recurring disputes and conflicts that (inter)national development policies and donor countries in the developing world are so obsessed with and want to fix as quickly as possible but to promote in-depth understanding of the nature of the generative factors that produce conflicts. While a lot of knowledge in the form of facts and case descriptions of the number and extent of conflicts is now available, understanding may need to be promoted to call for and realize be- havioural, educational and judicial-legal change among the actors involved, from state elites, international players and donor countries to local people. The views and interests of local citizens could be highlighted much more, and this would be enhanced by more democratically structured accountability systems, and legal checks and balances. 2 Abbink We plead here for a more holistic perspective on law, (land) conflicts and their mediation as well as on development policy in general. The authors have approached the subject from a variety of disciplinary angles: Political science, anthropology, law, sociology of development and human geography. And the title – Land, Law and Politics in Africa: Mediating Conflict and Reshaping the State – reflects the issues at stake: Land access and issues of land use, state politics and the effects of democratization, the relationship between constitu- tional/state law and customary law, cultural representations relevant to the poli- tical process, the changing nature of conflict in African rural and urban settings, border conflicts and their mediation, the autochthony debate, and conceptions of (human) rights. They interlock at various levels and are shaped by antagonistic economic interests between groups and elites, demographic pressures, resource competition and hierarchical state policies that have not devolved power to lower levels. It is apparent from the various case studies that discrepancies between Afri- can state politics and law-making on the one hand, and local-level political and community life on the other are significant. ‘Local knowledge’ and socio-cul- tural representations structure daily interaction, struggles for survival and com- munity relations, notably those centered on land: Land as a means of livelihood, as (national) territory with specific borders, or as ethnic patrimony. Regarding the first, we will see that what is usually known as ‘customary law’, namely law that has emerged in practice and is based on engrained local representations and values, is still widely popular and relevant (cf. Fenrich et al. 2011; Joireman 2011), and is maybe still the first form of dispute resolution for the majority of Africans. It should therefore be seen as a prime resource and not as a hindrance to the development of modern conflict resolution measures and state judicial development and law enforcement. The enduring challenge is for governments and donor countries to work towards a productive integration of the two streams. However despite legal pluralism, there is not necessarily a contra- diction between underlying principles of law and justice between ‘local’ and ‘universalist’ conceptions of what justice is and what rights are (cf. Hesseling 2006: 35, 39). What needs to be recognized though is the dynamic and flexible nature of legal conceptions and conflict solutions offered, rooted in power struggles between state elites and competing socio-political actors, and im- pacted on by the mobility of people and means of communication eluding state frameworks. That durable solutions are often hard to come by is connected to the often problematic and incomplete nature of the state itself: Models of the state in Africa differ and do not necessarily resemble a Western bureaucratic- legal edifice with a claim to the legitimate monopoly on the means of violence and the right to taxation. Many regions in Africa are not under the control of Introduction: Land, law and conflict mediation in Africa 3 state-like structures1 and, furthermore, those that exist often lack sufficient legi- timacy and representativeness. Before highlighting the three major themes that organize the contributions gathered in this volume, we will discuss the background to this bilingual col- lection. Background to the book This project was envisaged as a testimony to the inspirational legacy of Profes- sor Gerti Hesseling (1946-2009), the Dutch legal scholar and Africanist who had a successful career as a scholar of constitutional and land law, focusing on West Africa. She was also Director of the African Studies Centre in Leiden, the Netherlands, from 1996 to 2004. She contributed greatly to the development of African Studies in the Netherlands in both research and publications as well as in social-science policy and scholarly collaboration in Europe and Africa, forg- ing new links between the two. From 2006 until her death in March 2009,2 she was a research professor in human rights and peace building studies at Utrecht University. Her work3 touched on many of the topics discussed in this book, and several of the authors have taken up themes and ideas from her various studies. Gerti contributed much to the debate on law, constitutionalism and land issues in Africa, both in scientific and policy circles.