TRIBALISM IN AFRICA1
| DOI | http://doi.org/10.1002/j.1099-162X.1955.tb00078.x |
| Author | Vincent Harlow |
| Published date | 01 January 1955 |
| Date | 01 January 1955 |
TRIBALISM IN AFRICA 17
provides
that
"ownership of land may be acquired by peaceable, public
and
uninterrupted possession thereof by a person
not
being an usufructuary for a
period of ten years, provided
that
if ownership is claimed against
the
Govern-
ment the period shall be twenty years instead of ten." "Usufruct" is defined
as the right of using and enjoying land the bare ownership of which belongs
to another
and
"usufructuary" as the person having such right. Until the
contrary is established a person in possession, use or enjoyment of unregistered
land is deemed to be an usufructuary and, of course, it is only in settlement
proceedings
that
the contrary can be effectively proved, and a judgment
in
rem
finally given.
This ordinance was
not
intended to introduce any new principle or policy in
relation to the acquisition of ownership or other rights in land which in the
absence of registration or other proof of ownership was presumed to be the
property of
the
Government, for, as explained above, since 1899 uninterrupted
possession
had
been held to be evidence of ownership.
It
was pointed
out
by the Legal Secretary
that
this was merely one aspect of
what
had
been
the
basis of land policy from the very
start
"to
secure the native owner in his rights
of ownership, to establish these rights by registration whenever possible, to
encourage natives to become owners and to prohibit, or at any rate discourage,
them
from alienating
the
ownership of the land which they cultivate." He
emphasised
that
"if
we are going to recognize ownership of land or rights over
land by natives
at
all, as has been our basic policy in the past, then in un-
registered land in the majority of cases the only means the native owner has
of establishing his rights is by evidence of uninterrupted use."
Finally the position of native courts with regard to land cases should be noted.
The Native Courts Ordinance, 1932 provided
that
no native court should have
power
"to
hear any case concerning
the
ownership of land except a claim for
partition of land registered under the Land Settlement and Registration
Ordinance, 1925
and
owned in undivided shares by co-heirs." The Chiefs
Courts Ordinance, 1932which dealt with native courts in the southern provinces,
did not contain a similar proviso,
but
at
that
time there was little registered
land in the south. Jurisdiction in land matters is, of course, only one aspect
of the position of native courts in the judicial structure.
That
is another story
and
it will be sufficient for the purposes of this article to say
that
in practice
native courts have dealt with land disputes in unregistered land under the guise
of "rights of cultivation" or "rights of occupancy,"
but
have never heard
cases concerning registered land.
TRIBALISM IN
AFRICN
By Professor Vincent Harlow
CRITICAL
developments are taking place in the African territories for which
this country is responsible. Under
the
pressure of Western techniques
and
ideas the elemental forces of nationalism are being stirred into violent reaction
in such widely different regions as Uganda and Kenya, the Gold Coast and
Nigeria.
A similar process has been at work for some time throughout
the
Middle
and
the
Far
East. The process is familiar, and for
that
reason we tend perhaps to
think of nationalism as a phenomenon which is essentially the same in all
parts
of the world. Yet it is obvious enough
that
the African scene is profoundly
lReprinted
by
kind
permission of
the
Manchester Guardian.
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