Taking the public debate as a starting point, this paper analyses the merits and shortcomings of the Bill and especially looks at whether the Bill fulfils its promise of enhancing tenure security. Since conflict and tenure insecurity generally have a significant productivity-reducing impact and discourage landrelated investment, the latter is of great practical interest.
The paper shows that the proposed provisions concerning so called bona fide and lawful occupants will not enhance tenure security because they do not address the real cause of evictions and the main problem of the current law which lies with the contradictory relationship of rights of registered owners and bona fide and lawful occupants on so called mailo land and the lack of a functioning land administration and registration system. Instead, the proposed amendment simply replicates the current law and introduces institutional changes which are either unconstitutional or impractical. To actually enhance tenure security, it is suggested that the relationship between owners and occupants would need to be redesigned more fundamentally. Further, the land administration and registration system as established by the Land Act would need to be equipped with the resources necessary to carry out its functions.
The paper further shows that the provisions concerning customary tenure are likely to reduce tenure security since they weaken traditional dispute mechanisms and are ambiguous as to their scope of application and their relationship to other provisions. They should therefore not be adopted. Instead, it is suggested that traditional dispute mechanisms should be strengthened as proposed by the Draft National Land Policy and that the current law which provides for the issuance of certificates of customary ownership should be simplified and implemented.