Consider this. It is 1607. The English have been taking lands in Ireland for several centuries. First written down in the 7th century, Irish customary law is sophisticated and still administered by trained traditional magistrates (Brehons). Now rulings in the English courts on Gavelkind (1605) and Tanistry (1607) finally deny that customary law delivers property rights. Family holdings are made tenancies of by now well established Anglo-Irish elites, and the commons, crucial to grazing and hunting, are made more absolutely the property of the elites and new waves of English and Scottish settlers. Irish communities may use the commons at the will of these new owners.

Now 1823 in America. Chief Justice Marshall rules that while Indian natives were rightfully in possession (“Aboriginal title”) of 43,000 square miles of disputed land – in a case he engineers to be brought before the Supreme Court (and in which he has a private interest) – they illegally sold this tract to developers. He argues that by virtue of conquest, the British Crown became the owner of North America (“the right of discovery”). Therefore only the Crown or its administrations may lawfully sell or grant lands. Possession is no more than lawful occupation and use, and doesn’t count. Forty-year-old opinions of the Privy Council in London aid Marshall’s argument. These opinions established in 1772 and 1774 that English law supersedes local law, and that for the purposes of property, land is “uninhabited” (unowned) when empty of civilized people (McAuslan 2006).

1845 in England. The villagers of Otmoor, Oxfordshire in England, as described by Linebaugh in this volume, have lost the fight to keep their commons, as have hundreds of other communities across the realm. In fact, feudal land law in England (and the rest of Europe) has dictated for some centuries (since 1285) that only those granted land by the king, i.e. the lords, own the land. Local populations hold no more than use rights. These legal realities have come harshly into focus only with industrialization and with private capital hungry for lands and the financial killings which may be made from selling the commons to railways and factories. Parliament, made up of wealthy landlords, is on their side, passing law after law since 1773 to legalize the dispossession of commoners. The Inclosure Act 1845 [sic] administers the coup de grace, speeding up the process. Of course private gains under these “parliamentary enclosures” are “in the public interest.”

1895 in Africa. A decade earlier the Plenipotentiaries of European Powers (as they refer to themselves) agreed to establish respective “spheres of economic influence” throughout the continent and make key entry points like the Niger and Congo Rivers free trade zones. As the newest industrial power and especially anxious to extend trade, Germany hosts the meeting in Berlin in 1884-85. Europe is in economic crisis (the Great Depression 1873-1896). Factory owners desperately need new markets for unsold textiles and other manufactures. Fabulously wealthy entrepreneurs, with “vast accumulations of capital burning holes in their owners’ pockets” (Hobsbawn 1987) also seek new enterprises to invest in. The new working classes, having lost their livelihoods and now dependent upon (failing) factory jobs are also in need of new locales to migrate to. The matter is so important that the Powers create an early international trade law, the General Act of the Berlin Conference on West Africa, 1885. In practice, opening markets and enterprise in Africa does not work out so well and free trade goes out the window. By 1895 the economic scramble for Africa has segued into a political scramble with the creation of colonies and protectorates to protect new markets and tap the increasingly apparent wealth of resources and cheap labor in the African hinterlands.

The problem from the 1890s is, How to acquire such massive lands cheaply? For some time traders, profiteers and missionaries have been buying lands from coastal chiefs to create trading posts, ports, missionary enclaves, and more recently, for anti-slavery monitoring posts. Companies backed by European governments have been doing the same. The British Royal Niger Company alone has several hundred land contracts made with West African chiefs guaranteeing access to land for mainly commercial oil palm production, supporting inter alia the burgeoning soap industry in Europe. Chiefs are now selling exploration rights to gold mining companies. Such purchases suggest that European governments are amply aware that Africa is far from unowned. There is also the 1844 Bond to consider. This is a bilateral investment treaty signed between “sovereigns of equal power” along the Gold Coast and the British Crown. Nor are such kings and chiefs naive, with a long history of slave and commodity trading behind them and well-established trade missions and embassies in European capitals.

Luckily the old feudal land laws of Europe along with the Marshall Ruling of 1823 mentioned above come to the rescue. These offer a clutch of routes to legalize dispossession at scale. Legality is of concern to colonizers and their parliaments, not least to appease humanist groups at home who count the abolition of slavery as a first success. But the “right of discovery” assures the colonizers undisputed ownership of the soil. This may not work so well along coastal areas but can be amply applied to hinterland areas. Natives themselves unwittingly open the way; many of them claim that only God can own the soil or that their communities, continuing from the past into the present and future, are the owners. While firm in their respective schemes of possession they admit the land itself cannot be sold, at least not without the consent of communities. To Europeans, this conceded lack of fungibility and tendency to communalism “proves” that Africans do not own their lands in the manner European property laws acknowledge. Where bills of sale have queered the pitch, natives may be guaranteed secure occupancy and use – for as long as they actively occupy and farm the land. It would not, in any event, be wise to make it difficult for natives to feed themselves.

Conditionality of occupation and use leaves the attractive prospect that Europeans may claim ownership of several billon hectares of unsettled and unfarmed lands – in short, the communal property within their customary domains. Have not Smith, Locke, Mills and others established long ago that private property only comes into existence by the hand of man’s labor? The concept of “wastes” from feudal tenures is neatly applied to the continent by all colonizing powers. Counterpoint constructs of “effectively occupied lands” in the form of settlements and permanent farms, and “unowned and vacant lands” quickly evolve. In the absence of acknowledged owners, the commons fall directly to colonial administrations as their private property. And if there is still any doubt, it is obvious to the white men that the lucrative forests, wetlands and grasslands of Africa cannot amount to property as they are in communal possession; in Europe, private property means individual property. Moreover property obtains legal protection only when an individual person or company has a deed to prove it. Africans do not. In oddly mixed ways, these various proofs of terra nullius are applied.

Legal dispossession of Africans is more or less total. In practice, the ability of colonizers to settle and “develop” more than a million or so hectares in each new polity is constrained (South Africa aside). Natives continue to occupy and use lands which they no longer legally own.

Through the 20th century major colonial incursions are made into these lands. Although cities and towns multiply, they prove more notable for the conflicts they generate than the actual hectares they absorb. Settler schemes, commercial plantations run by parastatals and private enterprise, take a much greater toll, along with evictions caused by the issuance of concessions to foreign enterprises for oil, mining and timber exploitation. Laws are also passed declaring certain resources generically the property of the state; minerals (surface mined for centuries or not), waters, beachfronts, marshlands, mountains, forests and woodlands, fall like ninepins to the state, irrespective of local possession.

The 1960s in Africa. Liberation from Europe begins mid-century. Curiously, colonial notions of tenure are sustained in most post-independence land laws. Or perhaps not so curiously, for keeping rural majorities as tenants at will is as useful to new African governments as it had been to colonial masters. Class formation and land commoditization have grown apace since the 1940s. The new African middle class share not only political power and business interests, but the same deep commitments to market-led development so strongly advocated by the new donors (the former colonizers) and international agencies. Positions expressed in the landmark studies of late colonialism in Anglophone (1955) and Francophone officialdom (1959) become embedded national policies in Africa, reinforced by the land policies of the World Bank (1975). These read little differently from those of Malthus and Lloyd, as recorded by Linebaugh: land privatization is prerequisite to productivity.

Indigenous tenure regimes in general and communal landholding in particular are to be done away with as obstructions to individual-centric economic growth, to allow the polarization needed to produce a landless class for urban industrialization and fewer and larger native land owners assisted to produce food and commodities at scale. As is now so well known, Garrett Hardin, confusing collective group-owned property with open access regimes, adds his penny’s worth to destructively good effect (1968).

All over Africa (and Asia) privatization schemes are launched, aiming to individualize, title and register houses and farms (Alden Wily 2011). Where these work, such as in Kenya, commons are subdivided among wealthier farmers. Or they are handed over to governments as forest and wildlife reserves or state-run commercial agriculture developments. Ultimately the reach of privatization schemes is limited, so that by 1990 only around 10 percent of the rural lands of Africa are subject to statutory entitlement, and most of this in the white settler areas of southern Africa. But this is not problematic for African administrations who continue to dispose of untitled, customarily-owned lands at will, often to themselves or other private interests.

1990 in Africa. Despite privatization pressures the customary sector remains dominant. As the century nears end half a billion Africans are still regulating their land relations according to community-based norms, shaped by customs but adjusted regularly to meet changing realities. Despite significant failures in the 1970s and 1980s governments hold tenaciously to mechanized large-scale farming as the route to growth. Smallholder agriculture remains starved of investment even though customary smallholders represent the overwhelming majority. Families eke out a living on less and less farmland per capita. Levels of concentration and farm landlessness within the African peasant sector look increasingly like those of South Asia in the 1960s. But where the commons remain these routinely make the difference between pauperization and survival. As in Linebaugh’s village of Otmoor over a century past, the unfarmed commons continue to provide a host of services and products, from “pasture to pannage, to fish and fowl” and the waters needed to irrigate farms. Woodlands and forests are especially valuable, doubling the livelihood of the poor in many areas (IUCN 2010). And of course, the rural poor are the majority, some 75 percent of the rural population.

Democratization in the 1990s provokes tenure reforms, often following years of bitter social conflict. A handful of governments, most notably Uganda, Mozambique and Tanzania, acknowledge that Africans cannot remain forever squatters of their own land (Alden Wily 2011). They pass new land laws which for the first time endow customary rights with the legal force of real property, and irrespective of whether or not these interests are formally titled and registered, or owned by individuals, families or communities. The last opens the way for communities to secure thousands of hectares of commonage as acknowledged collective property. However, as well as being flawed in diverse ways, these cases are the exceptions. Most governments continue to avoid real change to their land laws. World Bank structural adjustment programs aid and abet this, coercing governments to accelerate privatization and sell off untitled lands (including the commons) to foreign investors.

Now consider this. It is 2011. Hundreds of rural communities in Africa – as well as parts of Asia and Latin America – are physically confronted with eviction or displacement or simply truncation of their livelihoods and lands they customarily presume to be their own. These lands are willfully reallocated by their governments to mainly foreign investors to the tune of an estimated 220 million hectares since mainly 2007, and still rising. Two thirds of the lands being sold or mainly leased are in poverty-stricken and investment-hungry Africa. Large-scale deals for hundreds of thousands of hectares dominate, although deals for smaller areas acquired by domestic investors run apace (World Bank 2010).

This is the global land rush, triggered by crises in oil and food markets of the last decade, and compounded by the financial crisis. The latter adds backing and raises the speculative stakes enormously. The crisis provides lucrative new investment opportunities to sovereign wealth funds, hedge funds and global agribusiness, the new entrepreneurs with “accumulated capital burning holes in their owners’ pockets.” Global shifts in economic power are evident; while western actors continue to dominate as land acquirers, the BRICs (Brazil, Russia, India, China) and food-insecure Middle Eastern oil states are active competitors. A regional bias is beginning to show; China and Malaysia dominate land acquisition in Asia while South Africa shows signs of future dominance in Africa. Two South African farmer enclaves already exist in Nigeria, and Congo Brazzaville has granted 88,000 hectares with promises of up to ten million hectares to follow. Negotiations are ongoing in at least 20 other African states (Hall 2011).

What foreign governments and other investors primarily seek are lands to feed the lucrative biofuel market by producing sugar cane, jatropha and especially oil palm at scale. They also want to produce food crops and livestock for home economies, bypassing unreliable and expensive international food markets. Additionally, investors seek to launch lucrative horticultural, floricultural and carbon credit schemes. For all this cheap deals are needed: cheap land (US$0.50 per hectare in many cases), duty-free import of their equipment, duty-free export of their products, tax-free status for their staff and production, and low-interest loans, often acquired from local banks on the basis of the new land titles they receive.

This rush for land, the new landgrab, does not stand alone. Local banks, communications, infrastructural projects, tourism ventures and local industry are also being bought up with a vengeance. These take advantage of the new market liberalization that poor agrarian governments now finally provide after decades of nagging by international financial institutions. For host governments, foreign investment is the new aid and path to economic growth, firmly facilitated by international agencies (Daniel 2011). Local land speculation flourishes in its service. The promise of jobs is more or less the only immediate benefit to national populations, and experience thus far suggests these are not materializing.

Nor is the phenomenon a one-way street. Extending and entrenching competitive “spheres of economic influence” is also on the agenda. Foreign capture of population-rich new markets for home manufactures is actively sought alongside land deals. This is best illustrated in the largely foreign capital buy-in and buy-up of Special Economic Zones (SEZ), most advanced in India but emerging elsewhere, such as in the Chinese “Shenzhen” planned in eight African states (Brautigam 2011). Should these develop they will provide tariff-free entry for Chinese goods at scale and locales for Chinese producers and laborers seeking to escape the saturation of home markets. Bilateral investment treaties, of which nearly five thousand have been signed between North and South states over the last decade, provide the governing framework for these developments.

In short, economic crises and shifts in the balance of political power once again produce seismic shifts in who owns and controls land, resources and production. But where are the poor and the commons in all this?

The commons and commoners

The answer is quite simple. Much of the lands being sold or leased to entrepreneurs are commons. This is not surprising because lands defined as commons in the modern agrarian world generally exclude permanent farms and settlements. Governments and investors prefer to avoid settled lands as their dispossession is most likely to provoke resistance. They also want to avoid having to pay compensation for huts and standing crops, or for relocation. Only the unfarmed commons – the forest/woodlands, rangelands and wetlands, can supply the thousands of hectares large-scale investors want. But most of all, the commons are deemed “vacant and available.” For the laws of most host lessor states still treat all customarily-owned lands and unfarmed lands in particular as unowned, unoccupied and idle. As such they remain the property of the state. This makes their onward sale or lease to private investors perfectly legal. Indeed, without such legality in domestic land law, and investor-friendly international trade law to take their side in international courts if needed, no international or local investor would proceed.

Of course the commons are neither unutilized or idle, nor unowned. On the contrary, under local tenure norms virtually no land is, or ever has been, unowned, and this remains the case despite the century-long subordination of such customary rights as no more than permissive possession (occupancy and use of unowned lands or lands owned by the state).

In practice, customary ownership is nested in spatial domains, the territory of one community extending to the boundaries of the next. While the exact location of intercommunity boundaries are routinely challenged and contested, there is little doubt in the locality as to which community owns and controls which area. Within each of these domains property rights are complex and various. The most usual distinction drawn today is between rights over permanent house and farm plots, and rights over the residual commons. Rights over the former are increasingly absolute in the hands of families, and increasingly alienable. Rights over commons are collective, held in undivided shares, and while they exist in perpetuity are generally inalienable. This is not least because the owner, the community, is a continuing, intergenerational entity. This does not mean that in the right circumstances, parts or even all of a community’s commons cannot be leased. Whether the community wishes to do so or not, is, communities believe, a matter for commoners to decide. Clearly, most domestic statutory legislation does not agree, let alone consider these critical estates in land to be community assets in the first instance.

The results of this continuing denial that property ownership exists except as recognized by “imported” European laws are clear for all to see in the current land rush. Not just commons but occupied farms and houses are routinely being lost as investors move in. In Democratic Republic of the Congo, for example, villagers with homesteads scattered in the forest have lost their entire domains to commercial crop farmers and now squat in a neighboring National Park from whence they will in due course also be evicted (Mpoyi 2010). In Ethiopia, communities are already being relocated from 10,000 hectares allocated to a Saudi-Ethiopian company with many more relocations anticipated as its lease is extended to 500,000 hectares (Oakland Institute 2011). Elsewhere communities are merely dramatically squeezed, retaining houses and farms but losing their woodlands and rangelands. Investors are clearing forests, damming rivers and diverting irrigation from smallholders, causing wetlands crucial to fishing, seasonal fodder production and grazing to dry up and enclosing thousands of hectares of grazing lands for mechanized farming for export. All this happens in Ethiopia, where local food security is already an issue and the specter of famine looms. The Ethiopian government is meanwhile expanding areas designated for investors to grow oil and food crops for export by 900,000 hectares in another region.

Sometimes villagers tentatively welcome investors in the belief that jobs, services, education and opportunities will compensate for the loss of traditional lands and livelihoods. The reality can be very different. Villagers in central Sierra Leone, Rwanda, and Kenya are among those not told that canal construction for industrial sugar cane production would dry up their wetlands, critical for seasonal rice production, fishing, reed collection, hunting and grazing. Deng (2011) records the case of a community in South Sudan agreeing to hand over 179,000 hectares to a Norwegian company for an annual fee of $15,000 and construction of a few boreholes; the company aims to make millions on both production and carbon credit deals.

In such cases, traditional leaders and local elites are often facilitators of deals, making money on the side at the expense of their communities. Reports abound of chiefs or local elites in Ghana, Zambia, Nigeria and Mozambique persuading communities of the benefits of releasing their commons to investors, and even reinterpreting their trusteeship as entailing their due right to sell and benefit from those sales. Central government officials, politicians and entrepreneurs are routinely on hand to back them up. Such accounts are repeated throughout Africa, and in some Asian states such as Indonesia and Malaysian Borneo, where 20 million hectares have been scheduled for conversion into oil palm plantations (Colchester 2011). Everywhere the story is more or less the same: communal rights are being grossly interfered with, farming systems upturned, livelihoods decimated, and water use and environments changed in ways which are dubiously sustainable.

Clearly possession is no more sufficient today than it was for the English villagers of the 17th and 18th centuries of enclosure. Only legal recognition of commons as the communal property of communities is sufficient to afford real protection. A handful of states in Africa (and somewhat more in Latin America) have taken this crucial step, setting aside fungibility and formal registration as prerequisites to admission as real property. The land rush instead not only activates the effects of failing to make such changes a thousandfold. It also raises concern that fragile reformist trends will not be sustained. Governments appear to find leasing out their citizens’ land too lucrative to themselves and aligned elites, and too advantageous to market-led routes of growth, to let justice or the benefits of the commons stand in their way.

References