The issue of customary lands

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Re: Questions about the idea of leasing customary land

My reading of Section 102 prevents the transfer of ownership of customary land causing alienation, basically, control of the land stays in the family.

However, the part of S102 you didn’t mention is as follows;

“PROVIDED THAT an Act of Parliament may authorize:

(a) the granting of a lease or license of any customary land or of any interest therein;

(b) the taking of any customary land or any interest therein for public purposes.”

This specifically opens the door for leases or the resumption of customary lands by the Government.

A lease does not transfer ownership of the land, but is a contract for the use of that land for a period and consideration. LTRA 2008 is the vehicle that enables the easier leasing of customary lands, while Customary Land Advisory Commission Act 2013 introduced an amendment in 2012/13 to the Alienation of Customary Land Act 1965 adding the following paragraphs to S4 - Power to grant lease or license;

“(2) For the avoidance of doubt, an interest in the lease or license of customary land that the Minister can grant by subsection (1) includes a mortgage of the interest of the lessee or licensee. 

(3) The process of registration and discharge of mortgages in the Land Titles Registration Act 2008 applies to the registration and discharge of such mortgages. 

(4) Nothing in this Act may be construed or implied:”

I am no lawyer, but the very mention of Mortgage and Lessee in the same sentence rings alarm bells. I believe this is the legal mechanism that allows a Lessee to take a mortgage on someone else’s customary land.

The bottom line is that L.T.R.E. 2008 provide a legal means for a single individual to effectively alienate from use, the family’s customary land, but it is other legislation that has quietly amended the Alienation of Customary Land Act 1965 to potentially enable alienation of ownership, by a Lessee who has used the lease as collateral to a mortgage, defaulting and therefore the mortgage holder foreclosing and disposing of the land to recoup losses.

There may not be any incidents of this happening to date, but because the legal framework is there, there is no guarantee that such a situation will not happen in the future.

 

Kevin Hartin

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