Customary tenure across East Africa: the claim that the form does not show

This is a public-record case study. It uses the project context named in the title to examine a RAP problem; it does not claim access to a project register, confidential settlement or unpublished audit. Project documents and current lender requirements should be checked before relying on it.

Thesis

Customary tenure requires a layered eligibility inquiry because legal ownership, customary authority, household occupation, secondary use and economic dependence may all describe different dimensions of the affected interest. Uganda's legal framework expressly recognises customary tenure, while Kenya's Constitution recognises community land under Article 63 and the Community Land Act 2016 provides a statutory framework for community ownership and governance. Tanzania's Village Land Act 1999 similarly establishes a distinctive framework for village land. These regimes differ, so a project must not import one country's entitlement assumptions into another. Yet IFC PS5 and World Bank ESS5 provide a common safeguards principle: people affected by project-related land acquisition or restrictions on land use should be identified according to the actual displacement impact, not merely according to the easiest documentary category. The practical consequence is that a title search is one evidence source, not necessarily the whole eligibility test. A strong RAP should record the formal interest, customary or community relationship, actual use, duration of occupation, resource dependence, community verification, competing claims and the legal basis for the entitlement decision. This is especially important for women, tenants, pastoralists, seasonal users and other people whose interests may be weakly represented in formal records. The lawyer's proposition is straightforward: absence of registered title does not logically establish absence of economic impact. The project's obligation depends on the applicable national law and safeguard standard, but the evidentiary inquiry should be broad enough to identify the real affected interests. Authorities: Uganda Land Act 1998; Constitution of Kenya Art. 63; Kenya Community Land Act 2016; Tanzania Village Land Act 1999; IFC PS5; World Bank ESS5; IFC Guidance Note 5.

The legal issue in this case

Customary tenure requires the applicable national statute and community practice to be read together. Registered title, household use, inheritance, tenancy, communal access and income dependence can describe different legal or safeguard interests; none should be inferred from a single interview or title search.

The project question

The factual question is how a claim is verified and by whom. A credible process records the evidence, competing claims, local institution, decision-maker and unresolved dispute without pretending that a RAP interview adjudicates a court matter.

What the scholarship still needs to establish

The research gap is the claimant’s journey: most scholarship discusses plural tenure at system level, while less follows secondary users through census, eligibility, payment, grievance and restoration.

Evidence a lawyer would request

Compare registry, title, community verification, household interview, asset and livelihood records. Report both inclusion and uncertainty; a documented unresolved claim is more credible than a falsely precise ownership field.

Legal frame: East African and cross-border context

A regional project does not create one supranational land-acquisition law. Each affected jurisdiction retains its own rules on land, notice, valuation, acquisition, remedy and public administration, while the financing agreement may impose a common safeguard floor. The legally sound method is a matrix showing which national rule applies to which event and which project commitment goes further.

A regional comparison cannot resolve a claimant’s entitlement without the country, tenure, instrument and project documents. Cross-border reporting should therefore preserve local legal advice, translated disclosure and country-level grievance responsibility rather than present a regional generalisation as a rule of law.

The authorities below are starting points for verification. They are not a substitute for checking the consolidated law, regulations, cases and project agreements applicable to the specific acquisition.

• Uganda Legal Information Institute ↗
• Kenya Law ↗
• Tanzania Legal Information Institute ↗
• Rwanda Legal Information Institute ↗

The setting

Across East Africa, land records and lived land relationships do not always describe the same thing. A family member, tenant, cultivator, spouse, seasonal user or community institution may hold an interest that a title search cannot reveal.

The RAP problem

The case-study lesson is not that customary tenure has one model. It is that a RAP must ask how land and assets are actually accessed, inherited, shared, farmed and transferred before deciding who is eligible.

What the record should preserve

The census should record claimant relationships, community verification, secondary rights, disputes and the evidence used to reach each decision. A documented disagreement is safer than a false single owner.

Reading the case through the standards

The legal and safeguards question is not whether a project can produce a compensation schedule. It is whether the schedule can be connected to a lawful acquisition process, a fair valuation method, an eligibility decision and an outcome that the affected person can actually experience. In Uganda, Article 26 of the Constitution places prompt, fair and adequate compensation before compulsory taking; the Land Act adds the tenure and disturbance-allowance context. Across the lender standards, the inquiry is wider still: people without formal title, economic displacement, replacement cost, livelihood restoration, consultation and grievance access all need a place in the project record.

That does not mean that every project is governed by Ugandan law or that a lender standard replaces national procedure. It means the case has to be read at the intersection of the applicable regimes. A title search may be legally necessary and still be an incomplete census. A signed agreement may prove that a document was executed and still be weak evidence that the amount was understood or that a livelihood was restored. A grievance may be closed administratively and still reveal a repeated design failure. Credibility comes from showing which proposition each document proves and which proposition requires a different kind of evidence.

What a serious case analysis would test

The first test is the impact boundary. Compare the engineering footprint with the social footprint: parcels, structures, crops and trees, but also access, customers, employees, common resources, seasonal users and people who depend on an affected household. The second is the decision chain. For each person or asset, can a reviewer move from identification to measurement, valuation, entitlement, approval, payment and remedy without relying on an unexplained spreadsheet change? The third is time. Notice, payment, possession, relocation, reinstatement and livelihood recovery are different events, and a project that reports only the earliest completed event will overstate its performance.

The fourth test is distribution. Aggregate completion figures can hide delayed claimants, women whose interests were recorded under another household member, tenants without title, vulnerable people who could not use the complaint channel, or communities waiting for a shared commitment. A credible monitoring sample should therefore be designed to find the difficult cases, not only to confirm the median case. It should preserve the reason an exception was made, who approved it, what the affected person received and what evidence supports closure. This is also where corruption risk becomes an evidence question rather than a rhetorical accusation: unexplained overrides, duplicate claims, missing measurements, payment mismatches and suppressed complaints are control signals that require investigation, not automatic conclusions of misconduct.

Research gap and practical implication

Public project material usually tells us what an instrument promised and, sometimes, what was paid. It rarely follows the same household from the baseline through implementation and into a measured outcome. That is the significant research gap running through East African RAP practice. A stronger study would combine the public legal and project record with anonymised household interviews, geospatial change, grievance trends and livelihood indicators. It would distinguish documented fact, reported allegation, project assertion and independent finding. It would also state what cannot be known from the available record.

Sources and limits of the public record

The article’s cited materials establish the standards, legal context or public accountability framework; they do not necessarily establish every factual proposition about the named project. A scholar should separate a primary legal rule, a lender requirement, a project disclosure, a reported allegation and an independently verified finding. That separation is not pedantry: it is what prevents a case study from laundering an assertion into a fact. It also identifies the next research step, whether that is a court record, a disclosed RAP, a monitoring report, a household interview or a project response.

• Performance Standard 5: Land Acquisition and Involuntary Resettlement ↗ — International Finance Corporation, 2012.
• Guidance Note 5: Land Acquisition and Involuntary Resettlement ↗ — International Finance Corporation, 2012.
• Good Practice Handbook: Land Acquisition and Involuntary Resettlement ↗ — International Finance Corporation, 2023.
• Uganda legislation — Constitution of the Republic of Uganda (1995) and Land Act (1998) ↗ — Uganda Legal Information Institute (ULII), 2023.

For practitioners, the implication is immediate: design the register as a chain of evidence before the first payment. Give every affected person and asset a stable identifier. Keep versions of the footprint and entitlement decision. Store the source of each rate and the reason for each exception. Record consultation in a way the affected person can use, protect sensitive grievances without making them invisible, and assign every livelihood or reinstatement commitment an owner, date, indicator and closure document. A case study is useful when it changes those controls, not when it merely provides a memorable project name.

Questions that test the thesis

• Who uses the land and assets in practice?
• Which community or household process verifies a claim?
• How are competing claims held and resolved without premature payment?