The document discusses key principles for strengthening community land rights through legal and policy reforms. It emphasizes that reforms should ensure legal recognition and protection of customary land ownership, clarify who has rights to land and enable rights holders to use their land. It also stresses the importance of clarifying roles and procedures for upholding rights, and enabling communities to claim, monitor and enforce their rights. The document provides examples from countries like Tanzania, Mozambique, South Sudan and Liberia of reforms that incorporated these principles successfully.

2. Download the full guide:
www.fern.org/securing-communityrights

3. 1
Why is land tenure security fundamental?
Land tenure systems determine who can own, use and
manage which land areas and resources, for how long
and under what conditions.
It guarantees the existence, recognition and
protection of land rights.
It can help to protect biodiversity and improve
livelihoods by reducing conflict over resource control
It encourages responsible investment by providing
certainty about whose consent is needed to use the land.

4. 2
The building blocks of law
For a legal system to work well, it needs three key
elements. Laws are ineffective if they do not establish
procedures and responsibility to making sure they are
enacted.
Substantive rights - the right to have or do something.
Procedural rights - a process that supports the claim to
a right. They enable you to exercise your substantive
rights.
Institutional responsibilities - to provide effective,
transparent and accountable enforcement of substantive
and procedural rights.

5. 2
Legal Pluralism
In practice, different systems of law co-exist and operate
in the same place, at the same time, over the same
issues. Finding a way to integrate these different systems,
using the best elements of each, offers the best chance
of achieving a clear, socially just system.
Customary law
Established
community rules,
continually
evolving.
National law
The written (statutory)
law of a country’s
constitution, legislation
and court judgements.
International law
Principles that
countries commit to
upholding,
including human
rights principles.

6. Cameroon: customary, national and
international law in conflict
Under national law, the government can
reallocate unregistered land that is without
houses, farms or grazing to other uses –
mining, logging, national parks etc.
Under customary law, many communities
claim collective rights over their traditional
land, even if it has never been registered in
national law. This includes most of the
traditional territories of the Baka and Bagyéli
hunter-gatherer peoples.
International laws which Cameroon has signed
up to affirm communities’ right to own land,
territory and resources that they have
traditionally owned, used or occupied,
including that claimed under customary law.
Cameroon’s constitution recognises the legal
priority of international law over national law.
Cameroon’s national law is in
conflict with the constitution, with
customary and international law.
In practice, this conflict leads to
large-scale dispossession and
impoverishment of communities
because the land they own under
customary and international law is
considered available for reallocation
by the state.

7. 3
Using human rights laws to secure
community land rights
Protection for communities’ land and resources rights
in international law is often based on human rights.
Reform processes provide an opportunity to embed
human rights principles into both national and customary
laws, through ‘domestication’ of international law.
Under international law, customary ownership of
community lands and resources must be recognised,
respected and protected by States.
The concept of Free Prior and Informed Consent (FPIC) derives from
international law. It is increasingly being applied to communities
whose customary lands are sought by outsiders.

8. 4
How to approach law and policy reform
processes
Clarify key objectives and principles at the outset – if all
rights holders and stakeholders agree on these at the
beginning, the reform process can proceed more
smoothly.
Make customary land ownership rights equal in weight
and validity to documented land ownership claims.
Incorporate overarching principles expressed in the
constitution as well as international law in to reforms.

9. South Sudan: Land act 2009
South Sudan’s Land Act sets out several
key land tenure objectives, including:
• Resolving land disputes in line with
customary practices and community
interest
Southern Sudan’s Land Act is an
example of the kinds of objectives
that could be included in a law or
policy.
• Integration of customary law into
national statutory law
• Incentivising investment and economic
growth
• Creating a decentralised system for
land administration, based on
community participation
• Reintegration and resettlement for
those displaced by civil war

10. 5
To strengthen community rights through
land and resource tenure reforms:
Ensure legal reforms comply with core principles,
including when customary traditions are in tension with
these principles.
Tanzania: incorporating women’s rights in
land reform
Tanzania’s Village Land Act protects women’s land rights in the event of land
sale, transfer, surrender, as well as in cases of divorce and widowhood. If a man
surrenders his land, his wife has the right to be offered that land before anyone
else.
The act also mandates for gender balance on land administration and
management bodies.

11. 5
To strengthen community rights through
land and resource tenure reforms:
Clarify who has rights to land, and what kinds of
evidence should be accepted as proof of land claims.
Suggested two-step process of clarification:
1. Confirming existing, collective community rights
2. Authorising customary law and procedures for
administering tenure rights within communities.

12. 5
To strengthen community rights through
land and resource tenure reforms:
Enable rights holders to use their land rights in relations
with others, meaning that parties outside the customary
community, including investors, must respect and
understand those rights.
Mozambique: Community as a legal entity
Mozambique’s land law recognises a ‘local community’ as a formal legal entity,
whose borders are clearly protected from infringement by outsiders and within
which traditional mechanisms of land use and management prevail.
The definition of ‘local community’ is grounded in community occupation and
use of land, and is designed for use in the wide variety of cultural and ecological
contexts of Mozambique.

13. 5
To strengthen community rights through
land and resource tenure reforms:
Clarify roles, responsibilities and procedures for
upholding land and resource rights, ensuring that
institutions and processes responsible for implementing
the laws are accessible and accountable.
Legal reforms can incorporate checks and balances to ensure:
Upward accountability: accountability to the state to ensure
compliance with core principles
Downward accountability: accountability from customary
authorities to communities, emphasising that the rights belong to
communities not traditional leaders.

14. 5
To strengthen community rights through
land and resource tenure reforms:
Enable rights holders to claim, monitor, enforce and
enjoy their land and resource rights
Legal reform must include procedural rights which make it possible
for rights holders to claims their tenure rights.
• Transparency – community and civil society access to information
• Participation – communities play a real role in decisions that
impact their rights
• Access to justice – systems that communities can use to enforce
their rights

15. 5
To strengthen community rights through
land and resource tenure reforms:
Ensure legal reforms comply with core principles
Clarify who has rights to land
Enable rights holders to use their land rights in
relations with others
Clarify roles, responsibilities and procedures for
upholding land and resource rights
Enable rights holders to claim, monitor, enforce and
enjoy their land and resource rights

16. 6
Opportunities for legal change and how to
use them
When legal reform is based on a multi-stakeholder
process, with the support of communities, NGOs and
others, they are more likely to be implemented
effectively
Multi-stakeholder engagement in Voluntary Partnership
Agreement (VPA) legal reform processes, and increased
transparency and accountability achieved through that,
can contribute to positive tenure reform.
VPA negotiations have tended to focus on national law,
to the detriment of international and customary law. This
should change in future.

17. Liberia: Stakeholder participation in through VPA
processes
Regulations in Liberia acknowledge
that meaningful public participation
in decisions related to forests is
essential to the long-term success of
forestry reforms.
Community Forestry Development
Committees (CFDC) in Liberia provide a
structure for communities to
meaningfully participate in national
processes related to their land and
resource tenure rights.
Communities were able to take part in
FLEGT VPA negotiations through CFDCs
right from the start, enabling community
representatives to take an
unprecedentedly active and influential
role in shaping policy and objectives for
legal reform.

18. Download the full guide:
www.fern.org/securing-communityrights