Customary land management systems and urban planning in peri-urban informal settlements

Abstract

Chinese

Customary land management systems are informal, community-driven land-use regulation systems that adapt zoning regulations and customary tenure to cooperatively self-regulate land-use management in multi-ethnic peri-urban settlements. The research uses an integrative literature review to critically re-evaluate the various concepts and practices of customary land management, their impact on the unique morphology of peri-urban areas and their relationship with urban planning. The research results indicate that customary land management systems are intrinsically linked to peri-urban settlements due to their polymorphic spatial structure and complex social groupings. It provides a simplified accessible and affordable land management system with multiple avenues for agency and a balance of power between different authorities. This generates a new set of social relations around neo-customary tenure. Customary land management systems are also linked to urban planning within a dual regulatory structure, combining formal policies and informal customs and providing alternatives for exploitative and exclusionary processes in weak and inefficient states.

Keywords

customary land management systems informality peri-urban settlements urban planning

Introduction

In much of the Global South, including most of sub-Saharan Africa, land uses are managed through customary tenure. Over 80% of sub-Saharan Africa and 40% of the global population are subject to various forms of customary tenure (Wily, 2018). Moreover, up to 80% of sub-Saharan African cities consist of informal developments (Davies and Fourie, 2002). As sub-Saharan cities experience some of the highest urbanisation rates in the world, most urbanisation occurs in poorly regulated peri-urban settlements, often on vaguely entitled customary land beyond the original municipal boundaries of colonial-era settlements (Boone, 2017). In these settlements, communal land informally disenfranchised for urban development creates a polymorphic tapestry of unplanned organic mixed urban and agrarian land uses. Rapid in-migration to these areas also creates a heterogeneous population with highly diverse urban cultures, ethnicities and identities, complicating land use management issues.

In the absence of effective planning bylaw enforcement and coherent formal land-use management structures in informal peri-urban settlements, land use is effectively self-regulated through customary land management systems (CLMS) (Home, 2001). Customary land management systems can be defined as informal, community-driven land-use regulation systems, adapting and combining aspects of customary law, zoning regulations, various autochthonous customary tenures¹ and neo-customary tenures² to self-regulate land uses in the vague tenures and complex social contexts of informal peri-urban settlements (Dadashpoor and Ahani, 2019). Customary land management systems customarily negotiate different tenures, land rights claims and mixed land-use externalities between residents through the mediation of various community authorities and institutions. Such is the extent of this phenomenon that the African Union (2009) formally recognised the prominent role of customary tenure regulation in urban governance. Despite having limited legal authority in most national planning policies, CLMS forms de facto informal urban land management systems in most sub-Saharan African cities, operating in parallel with formal urban planning and autochthonous customary tenure.

The structure and character of customary land management systems, their impact on the unique morphology of peri-urban areas and their relationship with urban planning are still poorly researched (Onyebueke et al., 2020a). Although numerous authors such as Home (2001), Davies and Fourie (2002), Mattingly and Durand-Lasserve (2004), Durand-Lasserve (2005), Ubink and Quan (2008), Andersen et al. (2015a, 2015b), Onyebueke and Ikejiofor (2017), Bah et al. (2018), Dadashpoor and Ahani (2019), Chimhowu (2019), Agheyisi (2019), Onyebueke et al. (2020a, 2020b) and Geyer (2023a, 2023b) acknowledge the emergence of this phenomenon and adeptly describe its procedures, there is no standard conceptualisation of customary land management systems in urban theory, despite its widespread prevalence on the subcontinent. The research uses an integrative literature review to critically re-evaluate the various concepts and practices of customary land management from the academic literature. It defines the characteristics, historical development, operative structure and spatial influence of CLMS in peri-urban settlements. Furthermore, the paper also addresses the relationship between urban planning and CLMS.

Characteristics and historic development of customary land management systems

Customary land management systems (CLMS) are uncodified and non-statutory land-use regulation systems that operate through vernacular face-to-face interactions, since there is no legal basis to enforce these systems within planning frameworks (Geyer, 2023a). Due to their non-statutory status, their procedures are fluid and flexible, pragmatically adapting to the socio-political uncertainties in sub-Saharan African cities, and providing customary regulatory prescriptions to informal land uses because of a lack of formal entitlements (Chimhowu, 2019). They employ the common knowledge of customary law and tenure systems, local power relations and localised re-interpretations of planning bylaws and adapt these to new land use management challenges linked to polymorphic informal peri-urban activities (Agheyisi, 2019; Onyebueke and Ikejiofor, 2017). The participants are primarily composed of urban in-migrants³ who are partially detribalised in terms of their traditional ethnic customs but also have a limited comprehension of the codified zoning and planning policy guidelines adopted from the North (Pottier, 2005). Customary land management systems are idiosyncratic in the sense that each location adapts its land management procedures to the unique social contexts of its heterogeneous urban communities, local institutions and hierarchical power structures operative in the locality, so that no two CLMS operate the same, nor are there fixed rules to land use and tenure management in CLMS (Geyer, 2023a; Mattingly and Durand-Lasserve, 2004).

Customary land management systems are not static but evolve incrementally through numerous day-to-day land use practices (Chimhowu, 2019). As the character of the community changes with successive waves of in-migration, and as new markets, new land uses, and new health and safety threats emerge, the systems adapt to these changes, creating an effective and dynamic land management system (Hall and Kepe, 2017). Since CLMS regulations are flexible and adaptable to different socio-cultural contexts, they provide a form of cognitive coherence in land management that is often absent from the complex bureaucratic procedures of urban planning.

Customary land management systems are not unregulated but deregulated (Roy, 2009). Deregulation is a mode of informal urban control through purposeful community actions in the absence of coherent or responsive planning regulations in peri-urban settlements (Morrison, 2017). The complexity and fluidity of customary tenure make it difficult to plan and regularise informal land uses through formal policy structures (Platteau, 1996). Instead, CLMS use social relations to co-operatively regulate informal land uses in an underregulated socio-political environment. Instead of a rigid, bureaucratic regulatory structure, CLMS operate through vernacular interactions between local actors, legitimised through the mediation of a plurality of commonly recognised community authorities (Chimhowu and Woodhouse, 2006). This generally follows transparent, open-ended conflict resolution processes and operates through loose social networks in which multiple special interest groups agonistically negotiate land use activities (Skuse and Cousins, 2007). It employs different modes of regulation in different locations to adjudicate legitimate land use rights and responsibilities, to legitimise complaints regarding externalities from informal land uses and to obtain verbal community recognition of neo-customary tenure (Agheyisi, 2020). Deregulated land use and tenure regulatory mechanisms are active and spontaneous, consisting of simplified oral procedures which are appropriate to their local contexts. These procedures are also accessible to the urban poor due to their informal and cost-effective structures, and their procedures are often more democratic, organised and transparent than formal entitlement mechanisms.

The development of CLMS is linked to the historical development of autochthonous customary tenure in sub-Saharan Africa. In pre-colonial Africa, concepts of private land ownership and tenure were non-existent, since territoriality and usufruct were vested communally by the tribe based on familial and hereditary ties (Peters, 2009). Individual usufruct was customarily recognised over actively utilised land and structural improvements, however, all land was regarded as shared communal resources, similar to feudal European commons (Fitzpatrick, 2005; Pottier, 2005). Colonial authorities, however, transformed tribal territory into statutory communal property associations and granted patrimonial chiefs and clan heads hereditary trusteeship rights over communal property, giving them new customary tenure management functions over communal property associations (Peters, 2009).

In the post-colonial era, the rapid urbanisation of undeveloped customary land surrounding sub-Saharan African cities and the large influx of in-migrants has resulted in the increasing social and ethnic heterogeneity of the peri-urban fringe (Geyer, 2023a). The comparatively higher value of high-density informal urban land uses creates an incentive amongst the indigenous community to informally sell usufruct land use rights to rural communal land to in-migrants for informal urban development in peri-urban settlements. This process, known as neo-customary land delivery systems (Durand-Lasserve, 2005), transforms the autochthonous customary tenure in tribal land to neo-customary tenure to accommodate in-migrants. These neo-customary land delivery systems rarely result in formal entitlements. The outright sale of communal land is generally prohibited by customary and statutory law, since it undermines cultural notions of communal territoriality. Nor may those without autochthonous tribal relations join a communal property association, since tribal membership conveys shared communal rights over all other communal property as well. Moreover, territoriality is often associated with ancestor worship and cannot be alienated (Home, 2001). Although these peri-urban settlements contain the majority of urban populations in sub-Saharan African cities and are functionally part of the contiguous city, they often have separate legal standing as communal lands outside the scope of municipal planning and servicing regulations (Simon et al., 2004).

As in-migrants often numerically outnumber the local autochthonous indigenous population in peri-urban settlements, but do not have legal entitlements to the communal property on which they obtained neo-customary tenure, there often exist multiple and conflicting layers of overlapping legal, autochthonous customary and neo-customary land entitlements based on ancestry, historic occupation, informal appropriation, state allocation or informal land transactions (Fitzpatrick, 2005). Moreover, the multi-ethnic heterogenisation of the population, the polymorphic transformation of peri-urban spatial structures and the neo-customisation of tenures reduce the authority of historic autochthonous patrimonies (tribal chiefs and clan heads) over land use management functions, creating a range of new conflicts over who should be the primary beneficiaries of usufruct, who has legitimate land rights claims, who has the authority to adjudicate land use activities and by what process such adjudications should occur (Geyer, 2023a). The complexity of these challenges requires the development of customary land management systems under the supervision of different community authorities representing the different social groups and ethnicities in peri-urban settlements (Chitonge et al., 2017).

The organisation of customary land management systems

The demographics in sub-Saharan African cities are extremely pluralistic in terms of race, languages, ethnicities and identities. Peri-urban settlements are embedded in dense networks of social relationships and patronages because of the absence of formally defined property entitlements, legal codes or policies or land use rights (Chitonge et al., 2017). The great variety of informal land uses, externalities, ethnicities, social classes, political agendas and identities require a regulatory structure far more complex than those provided by formal planning by-laws and policies (Lindell, 2010a). Most properties have layers of customary and legal property rights claims and thus regulation occurs through various patrimonial authorities and state bureaucracies (Syagga, 2011). The average poor in-migrant does not have the means to afford the high compliance costs of regularisation. Furthermore, underpaid and under-resourced state officials often extort exorbitant transaction fees, solicit bribes and sell or alter title deeds, especially where the legitimate entitlement is contested (Onyebueke et al., 2020b). Amid unsuitable and ineffective state policies and the widespread social distrust of the urban planning bureaucracy, CLMS provide a cost-effective and transparent alternative public platform to secure land use rights and minimise mixed land use externalities, even if it is not very reliable or necessarily equitable (Chimhowu, 2019; Pottier, 2005). Local actors prefer the familiar conditions of customary regulation because it has de facto community recognition. Furthermore, these arrangements are often more secure since public vernacular transactions are facilitated by locally recognised community authorities, providing public recognition of land use rights in contrast to often dubious title deeds and planning decisions (Chitonge et al., 2017).

Customary land management systems are set around a theodicy of myths and archetypes linked to kinship, ethnicity and religious structures (Lindell, 2010b). At the heart of the myths and archetypes is the customary relationship to property. Customs identify occupancy, assign a bundle of land use rights, and define social obligations towards neighbouring occupants similar to European common law (Blomley, 2008; Onyebueke and Ikejiofor, 2017). Customary land management systems are not based on a fixed set of rules but on constant negotiations between rival legitimacies (Agheyisi, 2019). Since it is based on distinctly local modes of behaviour and local land use customs, CLMS are idiosyncratic, that is, highly context-specific, creating highly flexible and adaptable land management procedures. Although customary tenure is communally recognised, land use rights rarely coincide with formal title deeds, zoning or connections to basic services (Home, 2001).

Since tenure and land use rights are not codified, the legitimacy of usufruct rights is secured through de facto community recognition and upon the consent of various community authorities (Lavigne Delville, 2007). Decisions are rarely arbitrary because the lingering social tensions from numerous property disputes could destabilise the inherent social cohesion within the community, and thus decisions are usually made following extensive in-house negotiations (Fitzpatrick, 2005). Since disputes are often very public and community-imposed penalties are often severe, actors are incentivised to self-regulate their actions and privately negotiate externalities before bringing a dispute to public arbitration. Thus, in CLMS, the onus often lies with the beneficiary not to generate excessive externalities and to share some benefits with the community (Agheyisi, 2019). Not only does this simplify land management processes, but disputes are reduced to the bare minimum, and only actors with warranted complaints are heard (Onyebueke et al., 2020a).

The multi-ethnic nature of peri-urban settlements creates an entirely new class system, composed of various historic patrimonial authorities representing the different ethnicities, economically mobile entrepreneurs with access to incomes; civil authorities with specialised knowledge of regulations and access to legal and counterfeit documentation; and landless proletariat rentiers, with small local kinship networks, limited tenure security and limited access to land and resources (Chimhowu and Woodhouse, 2006). The imperfect delineation of agency amongst actors requires that land use management be facilitated through intermediaries with authority in the community (Onyebueke et al., 2020a). Since the average resident has little personal agency, often having to navigate both obscure state policies and complex social relationships and patronages within multi-ethnic peri-urban settlements, most actors are compelled to collectivise behind persons who can rally community support or petition the state.

Customary land management systems often operate through a polycentric network of authorities, with significant overlapping spheres of authority including regional chiefs and village headmen, local municipal authorities and state ministers, judges, religious leaders, the representatives of different in-migrant ethnic communities, gangsters and religious leaders (Vij et al., 2018). Mediating the complex land use challenges and fragmented social structures requires a plurality of community authorities to negotiate land use rights and responsibilities on behalf of community members. These authorities form the elite in CLMS urban regimes because the enforcement of land use rights must be ensured by actors in the strongest position to negotiate externalities and direct collective actions (Webster and Lai, 2003). Similar to municipal officials, these community authorities navigate the complex customary regulations and patronages in this new class system to regulate informal titling, tenure, land use arbitration, planning, regularisation and servicing (Altrock, 2016; Kreibich, 2016). They sometimes even replicate ceremonial practices such as official rubber stamps, letterheads, inspection tours and hosting public forums (Waldorff, 2016). In turn community authorities often require compensation in the form of a customary payment of cash or a gift for facilitating the negotiations (Payne, 2004). These reciprocal exchanges are universal in informal networking arrangements in which actors rely on social capital and where there is an inherent distrust of civil authorities (Aliyev, 2015). They also direct social coercion, pressuring actors to adhere to community-imposed social regulations. However, community authorities also reduce the cost of transactions, secure de facto recognition of land use rights, provide acceptable constraints on land use activities and adapt customary regulations to new land markets without the need for policy alignment (Chimhowu, 2019; Hansen and Verkaaik, 2009).

Despite conflicting special interests and agendas, customary land management systems function reasonably amicably because the different actors operate along multiple axes of power requiring constant trade-offs and negotiations based on multiple overlapping criteria (Lavigne Delville, 2007). Since CLMS procedures are based on recognised local customs, the transactions are transparent and democratic at the local level, but vague and partially incomprehensible to the state and capital, limiting external interferences in internal politics. Only local residents and local community leaders participate and therefore, the decreed land use rights are communally secured and legitimised through common public consent and not externally imposed by policy. The de facto community recognition in CLMS often provides a greater security of tenure than state entitlements and land-use rights, especially in an uncertain political environment (Chimhowu, 2019). Furthermore, since access is granted by association, entry into informal property markets is simplified and made affordable for the urban poor, but is often impenetrable for external capital. CLMS creates multiple pathways for in-migrants to access accommodation and economic opportunities outside of formal property markets (Chimhowu, 2019). Although the procedures are not codified, petitioning a specific land use or lodging a complaint regarding a specific externality is usually well established, based on recognised customary conventions and popular consent (Vij et al., 2018).

Yet, there are limits to equitable representation, as specific exclusions may exist based on gender, ethnicity, religion or nationality, resulting in stigmatisation and xenophobia (Lindell, 2010a). Even if formal land use rights are secured through title deeds, the actor still needs to negotiate with other actors regarding customarily defined land use rights imposed over the property because customary land management is a parallel regulation system often not subordinate to formal planning regulations (Fitzpatrick, 2005). These may include thoroughfare rights, water rights, or the usufruct of thatching grass, firewood, fruit, etc. (Chauveau et al., 2006). In fact, because of the ever-present corruption within the Global South, legal documentation such as a title deed, whether rightfully acquired or acquired through bribery or forgery, merely forms part of a series of negotiable claims amongst layers of overlapping de jure and de facto entitlements. Customary tenure and land use rights in CLMS remain purposefully ambiguous within vernacular agreements so they can be renegotiated or reinterpreted by the community (Chimhowu and Woodhouse, 2006).

On this basis, the more legitimate land use claims are supported over opposing claims, based on the reasoned validity of the claim, the community recognition of the claim, and upon the authority of those community leaders supporting the claimant (Peters, 2009). While CLMS transactions are primarily vernacular, transactions are also often secured through several layers of legal and semi-legal documents from a variety of authorities. Examples in the literature include title deeds, notarised contractual transfer agreements, bank receipts, police affidavits, utility records and other documentary evidence of possession/ownership (Chitonge et al., 2017; Geyer, 2023a). The means to support land use claims could be various: zoning, bribes to officials, vetted sales documents, witnessed verbal transactions, squatting rights, gifting by patrimonial authorities, historical use and ancestral inheritance claims. Whereas formal land use transactions depersonalise and distance the interactions between actors through bureaucratic legal procedures, CLMS embed land use management into social exchanges, absorbing indigenous knowledge and ethnic relationships based on mutual commitments, moral obligations, reciprocity and trust (Aliyev, 2017).

Consequently, the process of acquiring land becomes increasingly diverse, opening communal land to new property markets (Vij et al., 2018). This includes informal transactions, usufruct rights, long-term leases, sales of certain rights and shared use arrangements. Land is also recommodified in a variety of ways, often using money, but also tradable goods or the share of revenues (Peters, 2009). Under community sanction, neo-customary tenure and land-use rights become tradable entities in CLMS, transforming autochthonous customary tenure into privatised usufruct rights. This creates an informal property market that is sufficiently regulated to secure land use rights and tenure but sufficiently deregulated to reduce regularisation costs and prevent neoliberal land commodification by rentiers (Chimhowu, 2019). In this process, CLMS obscure the boundaries of old and new systems of tenure, public and private land use rights, and externalities because land use rights claims are subject to localised interpretations and pluralistic community authority structures (Cousins, 2009).

Customary land management systems and peri-urban settlements

Peri-urban settlements consist of informal mixed-use developments in unzoned and undertitled communal properties along the periphery of cities in the Global South, particularly in sub-Saharan Africa (Dadashpoor and Ahani, 2019). The rapidly increasing populations, informal mixed land use development and the increasing use of market mechanisms mean that peri-urban areas present a range of economic opportunities in otherwise depressed Southern economies. With an annual growth rate of approximately 5% (UN-HABITAT, 2008), peri-urban development is becoming the default mode of urbanism in the Global South (Simon et al., 2012).

Peri-urbanism directly intersects with customary land management systems, since most developable land surrounding African cities is under communal entitlements. Local governments are usually unable to provide sufficient housing and services for the numerous poor in-migrants in postcolonial cities. Neo-customary land delivery systems provide the urban poor with opportunities to affordably access land in the zoningless peri-urban periphery through the informal sale of usufruct land rights on autochthonous communal land (Mattingly and Durand-Lasserve, 2004). However, the lack of formal entitlements, zoning bylaws and weakened autochthonous tribal patrimonies create a regulatory vacuum in peri-urban settlements (Yaro, 2012; Zenou, 2005). The informal in situ densifications, heterogeneous land uses and laissez-faire spatial development patterns also require the development of informal land management systems to self-govern the complex informal land uses of these settlements. Furthermore, the great complexity of multi-ethnic social relationships, polycentric community authorities, classes, and identities require flexible, idiosyncratic, and vernacular processes of customary governance (Dadashpoor and Ahani, 2019). As a result, issues surrounding tenure, land use externalities, access to services, and the distribution of social, economic, and political resources are locally coordinated through CLMS (Chirisa, 2010; Vij et al., 2018).

The peri-urban fringe is an area where different ethnicities, classes, and social groups access employment, acquire resources, and invest incomes, and where household needs are affordably met (Bartels, 2020). Customary land management systems are a necessity because of the wide range of potential social conflicts between different races, languages, ethnicities and identities, since the contestation over land rights and market access serves as the primary arena for unresolved social conflicts (Dadashpoor and Ahani, 2019). Customary land management systems reduce these conflicts by providing multiple avenues for agency through various special interest groups organised around multiple powerbases and authorities (Onyebueke et al., 2020b). The deregulated character of peri-urbanism stems directly from the polycentric political structure of CLMS. With a plurality of competing community authorities, local ethnic subpopulations access resources and entitlements by varying their allegiances to these authorities, creating a balance of power (Huchzermeyer, 2014). Although the legal pluralism and overlapping land rights of CLMS are not ideal, they are preferable to often corrupt, weak and incoherent formal planning practices in sub-Saharan Africa.

Customary land use management enables peri-urban settlements to adopt a polymorphic spatial structure through numerous piecemeal informal developments (Follmann, 2022). Peri-urban settlements consist of dense, seemingly haphazard networks of mixed formal and informal land uses combining urban agriculture, traditional villages, dense shanty towns, semi-formal housing developments (albeit often without planning approval), informal and semi-formal retail and industries, rural factories and home industries (Simon et al., 2004). Customary land management creates a laissez faire spatial structure with no real differentiation between formal and informal development, between urban and rural topologies, or between commercial, industrial, and residential land uses (Follmann, 2022). This is because these theoretical distinctions (all of which are the product of formal zoning policies and entitlements) are superfluous in usufruct-based neo-customary tenure systems without codified land rights and title deeds (Allen et al., 2015; Simon et al., 2004). In peri-urbanism, informality is deeply enmeshed into the formal economy, and thus the distinctions between formal and informal land uses and topologies are porous (Millington and Lawhon, 2019). Due to the lack of effective state planning enforcement and strong customary land management, peri-urban zones can accommodate high population densities and mixed land uses, but also retain much of their rural and communal character (Bartels, 2020; Mortimore, 1998). Globally, peri-urban development has different names in different areas – favelas, barrios, perdidas, poblacións, bustees, shanties, kibera, gecekondu, bidonville, jhoppad-pattis, but the structure of the settlements remains relatively similar (Kudva, 2009).

Customary land management systems create a new set of social relations where in-migrants are freed from the customary constraints of autochthonous tribal patrimonies in their places of origin. Peri-urban settlements are places where economically mobile populations access employment, places of production, places of investment and places where household needs are affordably supplied (Bartels, 2020). The customary commodification of informally disenfranchised communal land produces new markets for goods, services, labour and production inputs (Yaro, 2012). This enables the accumulation of petty commerce, housing development, local industries and services through innumerable piecemeal land transformations (Agheyisi, 2019; Sherman, 2016; Vij et al., 2018). The rapid growth in peri-urban zones would not be possible without the absence of statutory regulatory constraints, fluid boundaries, and weak planning controls in CLMS. However, the rapid urban development of peri-urban settlements also generates land shortages, urban poverty, social friction and pollution (Phillips, 2011). Because in-migrants regard peri-urban settlements as an abode and source of income rather than a home and because the opportunity cost of economic development significantly outweighs the private costs of informal land use externalities, there is a greater toleration of land use externalities in peri-urban settlements, enabling rapid economic growth. Peri-urban development may not be very aesthetically pleasing with high-density informal urban islands in rural areas, vast swathes of poverty-stricken shanty settlements, and congested roadside trade (Simon et al., 2012); however, it does provide a comparatively affordable and efficient mix of social and economic activities in otherwise functionally inefficient Southern cities.

Customary land management systems also create opportunities for the new urban middle class to invest their resources in the underregulated peri-urban periphery (Follmann, 2022; Mazzolini, 2016). According to Mbiba and Huchzermeyer (2002), this is linked to the corruption endemic in large cities, where the rents generated from pilfering state coffers, misappropriating official development assistance, and soliciting bribes are funnelled into developments in the regulatory no-man’s-land of the peri-urban periphery. The political and economic instability in sub-Saharan Africa means that investments in the underregulated peri-urban periphery lie outside the purview of the state since occupation rights are customarily protected through CLMS (Schindler, 2017). These investments are also more secure because, unlike other capital assets, primary residential properties in customary property associations are rarely nationalised by the state, and CLMS enable the investor to generate additional income through rental housing and commercial activities (Briggs and Mwamfupe, 2000).

Customary land management systems and urban planning

Customary land management systems operate semi-autonomously to urban planning, adapting codified bylaws and policies to customary law to manage the various informal land uses in peri-urban settlements (Peters, 2009). This creates a complex, counterhegemonic planning praxis that generates polymorphic peri-urban settlements (Onyebueke and Ikejiofor, 2017). It is thus neither an alternate formal land use management system to planning, nor an extension of autochthonous customary law, nor a linear evolutionary transition from neo-customary land delivery systems to regularised settlements. Instead, CLMS operate in a ‘tenurial shell’ outside the full sovereignty of either civil authorities or autochthonous tribal patrimonies. This is because CLMS lie in a legal grey area: land parcels legally owned by the state or autochthonous ethnic communities, but tacitly disenfranchised to private individuals through neo-customary tenure (Ankersen and Barnes, 2004; Geyer, 2023b). Their powers are both complementary, enabling effective state land management where existing land use policies are ineffective, and adversarial, undermining the legitimacy of the formal regulations (Altrock, 2016). They range from benign facilitators to corrupt despots and can at times operate in collusion with the state and capital and may display prejudice and violence (Ranganathan, 2014).

Because of its non-statutory and mutable character, CLMS isomorphically adapt to conform to certain zoning regulations that are necessary for public health and safety, and implementing customary practices to substitute for the more onerous zoning restrictions such as boundary lines, densities and building codes (McAuslan, 2013). Urban planning and CLMS operate on the principle of a difference between rules-in-use and rules-in-form (Ostrom, 2014). Rules-in-form, like bylaws, provide strong rights to tenure and use, but they are static and inflexible. Rules-in-use, like customs, are informal conventions that do not provide absolute security of tenure and land use, but they conform to accepted modes of social interaction and are thus adaptable and flexible (Dadashpoor and Ahani, 2019). While planning bylaws and property titles provide land use rights and security of tenure in form, the problem is that these policies are not adapted to the heterogeneous social contexts and polymorphic structure of peri-urban settlements. Few actors acquire formal rights through title deeds and zoning, because they do not have the social legitimacy that CLMS have (Hornby et al., 2017). Customary land management systems, functioning according to rules in use, are more effective in peri-urban settlements because these practices are based on accepted historical and cultural practices, are commonly respected by the community, and are adaptable to the complexity of local contexts (Sibanda, 2018).

The deregulated nature of CLMS complements urban planning by enabling the urban poor to access social justice and meet their basic housing and income needs, protecting them from market exploitation in a neoliberal economy (Payne, 2004). Being deregulated, CLMS implement common law principles where planning bylaws cannot adequately regulate land uses or tenure (van Gelder, 2013). Customary land management systems do not deviate from all formal planning regulations and only do so when state functions are ineffective, when urban planning policies are socially and financially onerous, and the moral duty of securing incomes and affordable housing overrides obeisance to legal prescriptions (Agheyisi, 2020). Customary land management systems logically contradict certain planning regulations because these are specifically tailored for specific local contexts, whereas planning tends to generalise the rules for all within a single national planning system. Thus, the conflict between formal zoning and informal CLMS is a conflict between the general ethics of the national population and the specific ethics within small, localised groups (van Gelder, 2013).

Neo-customary tenure in CLMS does not have the same degree of statutory recognition as formal entitlements or autochthonous customary tenure, requiring tacit recognition from both systems for legitimisation (Berrisford and McAuslan, 2017). However, since the legitimate tribal members holding autochthonous customary tenure are often a numerical minority, and since formal planning authorities require the participation of the community and find it difficult to integrate various customary practices and land use rights into zoning, both the autochthonous tribal patrimonies and urban planning officials need to cooperate with CLMS to maintain some form of public legitimacy (Bartels, 2020; Dadashpoor and Ahani, 2019). The state, therefore, generally tolerates CLMS conducts and procedures (Chimhowu, 2019; Yaro, 2012). Furthermore, because of the legacy of colonial injustices and the legislative recognition of customary tenure, the postcolonial state is mandated to assume a facilitative role in planning by securing occupation rights for the urban poor and allowing the ill-informed public to actively self-regulate informal peri-urban settlements (Durand-Lasserve and Royston, 2002/2012). Consequently, many sub-Saharan African countries have a dual regulatory structure in which urban areas statutorily fall solely under planning regulations or autochthonous tribal patrimonies, but in practice, peri-urban land use is primarily regulated through CLMS. Whilst the state rarely recognises the legal authority of CLMS, civil authorities are required to recognise customary land ownership and the validity of community authorities as legitimate public representatives of the community in urban planning, leading to the coexistence of both planning and CLMS in much of the city (Onyebueke et al., 2020a).

Peri-urbanism is a particular challenge for the state since the extremely high densities, laissez-faire spatial structure, and informal land uses intrinsically contradict the rights and regulations in planning (Geyer, 2023b). Regularisation is exceedingly difficult, requiring the codification and renegotiation of innumerable individual property claims over very small parcels of land and the wholesale resettlement of haphazardly distributed individual properties and structures within a formal grid system of street blocks and servitudes (Earle, 2014). Furthermore, most peri-urban settlements often have a separate legal standing within customary property associations and are thus outside the scope of municipal planning and servicing mandates (Wily, 2018). While the right of occupancy is statutorily protected against eviction, this does not provide specific private property rights concerning specific land use activities (Wily, 2012). Thus, peri-urban settlements become a legislative no-man’s-land in which civil authorities have limited statutory rights to formalise occupation rights into zonable land use rights; and are without a financial mechanism to claim property taxes for improvements (Geyer, 2023b). Since neo-customary tenure and communal land use rights are not recognised as legal tenure, but merely as communally recognised usufruct, these limit property taxation and bylaw enforcement (Chimhowu, 2019). The lack of formal entitlements also creates uncertainty regarding future occupancy rights, property boundaries and land use rights. Customary rights may be subject to adverse local reinterpretations, poor regulatory oversight, and a lack of clarification regarding the correct regulatory procedures (Dadashpoor and Ahani, 2019). This also reduces the value of property and limits the individual from implementing capital improvements to the property.

However, the formal bylaws and policies of urban planning form a necessary counterbalance to failed CLMS by providing an alternative recourse to acquire security of tenure and land use rights, and to mediate conflicts between community groups. Customary land management systems are not necessarily democratic or equitable and these systems can be exploitative or exclusionary (Ranganathan, 2014). In a complex environment of legal, normative, and institutional pluralism, customary land use rights are often subject to arbitrary outcomes and community-imposed restrictions (Fitzpatrick, 2005). Since there is not one set of procedures or legal principles upon which decisions are based, the customs are subject to reinterpretations, reversals and renegotiations over time. Community-sanctioned legitimacies can be biased in terms of status, ethnicity, gender, income or religion (Agheyisi, 2019; Vij et al., 2018). These systems can also generate high levels of social and economic restrictions regarding the types of land uses permitted and who is permitted to conduct these activities (Aliyev, 2015). In many cases, community authorities work against public interests by preventing the regularisation of services and undermining certain land use activities (Ranganathan, 2014). The losers in these transactions invariably are those that have less community support, particularly the urban poor, females and minorities (Chimhowu, 2019; Onyebueke et al., 2020b). Neighbourhoods can even be internally fragmented into ethnic factions that operate against each other within the same system (Earle, 2014; Onyebueke et al., 2020b).

State officials thus have a wide latitude of freedom in how they choose to deal with CLMS, but are abrogated from any real responsibility over unregulated activities outside municipal boundaries. The typical state response is to tacitly assent to the customary regulation of informal land use activities by allowing the public to self-regulate communal tenure (Durand-Lasserve and Royston, 2002/2012). The state also selectively implements hybridised forms of local regulations, officially implementing planning bylaws in certain instances and tacitly permitting customary regulation in other instances, contrary to policy (Berrisford and McAuslan, 2017; Dadashpoor and Ahani, 2019). In this manner, they can secure customary occupation rights for the public and cooperate with community authorities to enforce certain bylaws through CLMS in a clientelist system (Azuela and Meneses-Reyes, 2014). This facilitates maximal housing and economic development in peri-urban settlements rather than implementing absolute planning control.

Although customary tenure is statutorily recognised by many countries, in practice, the recognition and protection of those land use rights are often questionable in developing countries (Onyebueke et al., 2020b). Customary rights are often superseded by the state or external capital when the value of the land significantly increases above its customary usufruct value (Hufe and Heuermann, 2017). There are also numerous fraudulent practices among both autochthonous tribal patrimonies and civil authorities, selling land titles without the foreknowledge of the community and land is often forcibly appropriated by in-migrant squatters (Agheyisi, 2020). Since neo-customary tenure is not protected by statutory law, significant challenges arise when land is formally planned, such as the compulsory acquisition of land for infrastructure upgrading, formal housing and industrial development (Ty et al., 2013). In these cases, the state often summarily deems CLMS-regulated tenure and land use activities illegal and undesirable, enabling neo-liberal land appropriations (Onyebueke et al., 2020b). While most national governments tolerate customary rights when the land values are low, the vague and ambivalent definition of these rights, coupled with a lack of codified documentation, means that customary rights can easily be disregarded when there is significant financial interest in usurping land. In these cases, achieving justice is exceedingly difficult because of the numerous conflicting land rights claims and the inefficiency and corruption amongst civil authorities (Paton and Cooper, 2016). Invariably, the net losers in such interventions tend to be those most vulnerable and marginalised community members, minorities, and the urban poor who cannot obtain statutory recognition of their customary claims (Onyebueke et al., 2020b). Despite most sub-Saharan African countries ratifying the International Covenant on Economic, Social, and Cultural Rights (ICESCR), these are still subject to the highly defective local administrative, institutional, and legal interpretations thereof (Ssenyonjo, 2017).

Conclusions

Customary land-use management systems (CLMS) are informal, community-driven land-use regulation systems that adapt zoning regulations and customary tenure to co-operatively self-regulate land-use management in multi-ethnic peri-urban settlements. These systems negotiate different tenures, land rights claims, and mixed land-use externalities through idiosyncratic, non-statutory, and vernacular interactions mediated by a polycentric network of community authority figures. These systems are flexible, adapting to demographic and economic changes using transparent negotiation processes. Since peri-urban settlements are ethnically diverse, the complex social challenges of informal land uses require familiar local customs to simplify land management processes. This creates an entirely new class system, dominated by community authorities who navigate complex customs and patronages on behalf of the actor. Since actors operate along multiple axes of power, CLMS creates multiple pathways to access markets and obtain land use rights. This generates new forms of property markets, without the use of formal tenure, and obscuring autochthonous customary tenure and neo-customary tenure.

Peri-urbanism is linked to CLMS since the lack of entitlements, zoning and patrimonies require customary mechanisms to self-govern the polymorphic spatial structure and complex social groupings. Since these settlements lack a functional differentiation between formal and informal, and rural and urban topologies, they require a complex land management system that is also simplified, accessible and affordable. Customary land management systems provide multiple avenues for agency, allowing actors to vary their allegiances to different authorities to create a balance of power. This also creates a new set of social relations, in which intra-migrants are absorbed into the local economy and provided with an affordable and efficient mix of social and economic activities. It is also associated with a growing new urban middle class that invests in peri-urban settlements because of regulatory freedoms.

Customary land management systems operate semi-autonomously to urban planning. This creates an alternative land management system that is complex and counterhegemonic. It both complements and undermines formal regulatory policies. Ironically, both the autochthonous tribal patrimonies and state officials need to cooperate with CLMS to maintain some form of public legitimacy, and the CLMS needs the cooperation of patrimonies and state officials because of its lack of statutory authority. This creates a dual regulatory structure with both formal policies and informal customs. This is necessary because of the challenges in regularising the fragmented social and spatial structure of peri-urban settlements. Furthermore, the dual regulatory structure prevents CLMS from implementing exploitative or exclusionary processes, and CLMS provide the urban poor with the means to access their basic needs and protects them from market exploitation in a weak and inefficient state.

Footnotes

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Herman Geyer

Notes

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