Enumerating customary and communal land in a RAP

Most land in rural East Africa is held under customary arrangements, and most compensation systems are built for registered title. The mismatch is not a technicality — it decides who gets paid, who signs, and whether the payment reaches the people whose use of the land was actually extinguished.

What customary tenure is, operationally

Customary tenure is not the absence of rights. It is a system of overlapping, socially recognised claims: a family holds land in perpetuity, individual members cultivate defined plots, others hold seasonal grazing or gathering rights over the same ground, and the authority to alienate it sits with a lineage head or a clan rather than with the cultivator.

National law in several jurisdictions recognises this expressly, giving customary holdings legal standing without registration.[4] The standards go further, requiring that people be compensated and assisted whether or not their claim is recognisable in law.[1]

The recording problem

A census form built around one parcel and one owner cannot represent what is on the ground. Attempting it produces one of two errors: the enumerator records the person present, who may be a cultivator with no authority to receive payment for the land; or records the family head, extinguishing the cultivator's claim entirely.

The fix is structural rather than procedural. The register needs to hold multiple claims against one parcel, each with a claim type — allocated cultivator, family holder, grazing right, gatherer, tenant — and each linked to a natural person. That is a data model decision made when the instrument is designed, and it cannot be retrofitted once thousands of single-owner records exist.[3]

If the enumeration instrument has one owner field, the RAP has already decided who is invisible.

Evidencing a claim without a document

Where no title exists, evidence is testimonial and needs to be gathered in a form that will hold up years later. Practice that works:

• Boundary walking with neighbours present. Adjacent holders confirming a boundary on the spot is the strongest available evidence and it resolves competing claims before they reach the grievance desk.
• Local authority or clan attestation, recorded with the name and position of the attesting person rather than as an anonymous endorsement.
• Physical evidence — planted boundary trees, graves, permanent crops — photographed and geolocated.
• Public display of the draft register in the settlement, with a stated period for objections. This is the step that surfaces both omissions and opportunistic claims, and it should occur before any payment.

Communal land and the payee question

Where land is genuinely communal — grazing commons, a burial ground, woodland used by a whole village — the loss is real and there is no individual payee. Paying a committee is fast, and in the absence of governance safeguards it converts a community asset into a discretionary fund.

Where a project takes communal land, three questions decide whether the remedy works: who holds the receiving vehicle and under what accountability; whether the users of the lost resource are identifiable as a class within it; and whether the remedy could instead be delivered in kind — replacement grazing access negotiated with a neighbouring community, a borehole for a lost water point — which removes the distribution problem entirely.[2]

Who signs

Payment requires a signature, and on customary land the person entitled to sign is frequently not the person cultivating. Two disciplines reduce the damage.

First, separate the entitlement from the payee: record who is entitled, then record separately who is authorised to receive, with the basis for that authority. A single name field collapses two facts that should be independently reviewable.

Second, where payment is made to a family or clan representative for land worked by several members, document what was communicated to those members about their share. This will not prevent intra-family disputes — nothing available to a project will — but it establishes what the project knew and disclosed, which is the question that will be asked.

Registration as an unintended consequence

Projects sometimes formalise customary holdings during acquisition, on the reasoning that a registered claim is easier to compensate. It is, and the formalisation typically registers one holder where the customary arrangement supported several. Formalisation programmes in the region have repeatedly produced exactly that narrowing.[5]

Where a project undertakes formalisation, the secondary claims — cultivators, women's use rights within the family holding, seasonal grazing — should be documented before registration proceeds, not after. The register that results will otherwise be the permanent legal record of a simplification the project made for its own convenience.