Land grabbing, land rights and the role of the courts.

Abstract

Rights-based approaches to development tend to emphasise human rights, the right

to participate in decision making, and rights to social services and goods such as

water, housing, and even the city. They tend to exclude land, while land rights

research tends to be focused on land law and law courts without analysing ‘the

right to land’. It is possible for the courts to play a key role to shape the current transformation of property relations, especially when private property appears to be failing its supposed role as a social trust but, as we show with an original institutional economics methodology, data from court cases, and results from Afrobarometer surveys, the contribution of the courts can be severely constrained. Existing approaches to contesting land grabs – centred on (a) popular protests (b) international guidelines and (c) national laws from the executive and the legislature – are inadequate without the courts, but what the courts can do is contingent on how well cases are presented, the orientation of judges, the resources of plaintiffs and, most fundamentally, the nature of their working rules.