‘The Law is to Blame’: The Vulnerable Status of Common Property Rights in Sub-Saharan Africa Liz Alden Wily ABSTRACT The context of this article is the surge in large-scale land acquisitions of African lands by local and foreign investors for commercial food, livestock, oil palm and carbon trading purposes. Involuntary loss of rural lands at scale is not new to Africa’s majority rural poor, nor is it driven by a single factor. Historically inequitable land relations within communities, compounded by a century of capitalist transformation, take their toll. This study argues, how- ever, that the weak legal status of communal rights is the most pernicious enabler in their demise, allowing governments to take undue liberties with their citizens’ lands, and particularly those which are unfarmed and by tradi- tion held in common. While international acquiescence to abusive domestic law helps entrench the diminishment of majority land rights, the domestic laws themselves are principally at fault and necessarily the target for change. This legal vulnerability is explored here through an examination of more than twenty African land laws. THE CONTEXT The Argument Lands held customarily in Africa have always been vulnerable to involun- tary loss, particularly those which are unsettled or unfarmed; that is, lands normally held collectively by individual communities (‘the commons’). In- ternal inequities compounded by more modern class formation play their role. However, since the establishment of colonial then independent national states, the major appropriators of these lands at scale have been governments. While exceptions have begun to emerge, national land laws have generally been structured to make this appropriation possible, by denying that cus- tomary rights amount to real property rights, deserving of protection. This is a-historical in its implication that Africa was empty of owners prior to state-delivered entitlement. It is also unjust, all the more so given a century The author would like to acknowledge the useful comments of the referees on an earlier draft of this article. Development and Change 42(3): 733–757. C  2011 International Institute of Social Studies. Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main St., Malden, MA 02148, USA