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3.2 Key human rights concepts for securing community land and resource tenure
3.2.1 Does a community have a right to own its land, even though it does not have a written proof of ownership?
Rural and forest communities in Africa, including indigenous peoples, often do not have a written deed or similar document ‘proving’ the ownership of their
communityancestral lands. Yet they may have collectively occupied and used that land for centuries in accordance with customary laws, justifying a legitimate
‘customary’ ownership right. Historically, the lack of written proof has translated into a denial of community property rights, making their lands vulnerable to
being taken by companies, government or private individuals. However under international law, customary ownership of community lands and resources
must be recognised, respected and protected by States. International law is therefore a key tool in seeking secure community rights.
Communities in Africa vary widely in their respective social and cultural contexts but this need not preclude them from gaining appropriate protection
for their land and resource rights under international human rights law where circumstances demand such protection. Although the paragraph above refers
to mainly rural communities with long-standing ties to land under customary law, other communities may have developed rights over land even where their
occupation is comparatively recent and where the land is in a more urban setting. For example, the Nubians, whose ancestral lands are in the Nuba Mountains in
what is now South Sudan, have arguably acquired land rights deserving of legal protection in Kenya due to their historical association with the Kibera slums in
Nairobi, even though very long-standing occupation and customary ties are not present.
4
Rights to property, food, culture, housing, self-determination, non-discrimination and development are some key rights from international law that commonly
justify protection for the rights of communities to own, access and use the land and resources that they rely on for their day-to-day physical andor
cultural survival. he exact nature and extent of the legal protection that a
4
See he Nubian Community in Kenya v. he State of Kenya, Communication 31706, African
Commission on Human and Peoples’ Rights. While the Nubian legal struggle currently before the African Commission chiely turns on the issue of statelessness, the case nevertheless raises
collective land claims over the Kibera slums in Nairobi in view of the Nuba’s historical association to that land, and the issue of citizenship and ‘belonging’ in the Kenyan context. See
http:www. ihrda.org201209nubian-community-in-kenya-nubian-adults-v-kenya-communication-31706
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25 community needs for its land and resource rights will depend on their particular
circumstances. In general terms, the strength of a communities’ right to land and resources will normally be proportionate to the harm that would be experienced
if some or all of that land and resources were taken away from them. he greater the harm, the stronger the legal protection required. In summary, international
law therefore provides that the ownership rights of communities over lands and resources on which their physical or even cultural survival depends, and
that they have acquired, or traditionally owned, used and occupied regardless of whether they hold a deed or not must be protected for a great many
communities in Africa who currently do not have their land and resource rights recognised by national laws.
Peoples identifying as indigenous are often the most discriminated and marginalised communities. heir entire culture – language, traditional knowledge
and identity – can be put at risk when their lands, territories and resources are lost or damaged, such is the strength of their connection to land and place.
Discussions about the land rights of indigenous peoples in Africa deserve careful attention. his is because the issue can be a contentious one, with some African
states denying indigenous peoples exist at all, or claiming that all Africans are indigenous. In either case, the reality on the ground is that these communities’
cultural and physical survival is at stake and policy and law reforms must therefore take special measures to address the discrimination they face.
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o land
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