Экзамен зачет учебный год 2023 / Dickerman, Land Registration in Africa

L T C P a p e r

Security of Tenure and

Land Registration in Africa:

Literature Review and Synthesis

by

Carol W. Dickerman

with

Grenville Barnes

John W. Bruce

Joy K. Green

Greg Myers

Richard Polishuk

Douglas Stienbarger

Andrew Sund

University of Wisconsin-Madison

175A Science Hall

550 North Park Street

Madison, WI 53706 http://www.ies.wisc.edu/ltc/

SECURITY OF TENURE AND LAND REGISTRATION IN AFRICA :

LITERATURE REVIEW AND SYNTHESIS

by

Carol W. Dickerman

with

Grenville Barnes

John W. Bruce

Joy K. Green

Greg Myers

Richard Polishuk

Douglas Stienbarger

Andrew Sund

iv

PREFACE

In 1984, the Land Tenure Center embarked on a project to evaluate the experiences with land registration and tenure reform in Africa. Had African states been able, through tenure reform and land registration, to provide greater security of tenure than was available through customary tenure systems? This literature review is one product of that four-year project on security of tenure and land registration, carried out under LTC's Cooperative Agreement (ACCESS I) with USAID's Bureau of Science and Technology. It was undertaken by Dr. Carol Dickerman with the assistance of several LTC staff and research assistants. The literature proved far more extensive than anticipated. While most of these annotations were completed in the first year of the project, additional titles have been added as the project moved into its field-research phase in Senegal, Uganda, Kenya, and Somalia. Simultaneously, a critical examination of the economic literature on these issues, by Professor Richard Barrows and Dr. Michael Roth, is being issued. These publications will be followed later this year by the four country reports and a final report.

Over four hundred items are annotated here, organized by country and indexed by subject matter and author. In spite of the number, a large part of the African literature is not included; this review focuses on the literature about tenure reform, and the annotations do not include the ethnographic and other analyses of customary land tenure systems. Each country section is not simply a collection of disconnected annotations but relates the items to one another, indicating how our current state of knowledge has developed. Stu-dents of tenure reform in Africa have often in the past been overwhelmed by the sheer extent of the literature. This review and synthesis should vastly simplify their task. Dr. Dickerman's introduction examines the motives behind and impacts of tenure reform and land registration in Africa with a breadth of coverage which our earlier command of the literature had not allowed.

Funding for this research was provided by AID's Africa Bureau from Strategic Studies funds and by the Bureau of Science and Technology. The Land Tenure Center appreciates the interest and support of many in AID/Washington, including David Atwood, Michael Yates, and Gloria Steele in the Bureau of Science and Technology; Pat Fleuret, Gerald Casnin, and Curt Reintsma in Africa Bureau; and Joan Atherton in PPC.

We would also like to express our thanks to Jane Dennis, whose work typing, formatting, and keeping track of many separate computer files was invaluable.

John W. Bruce, Project Coordinator Security of Tenure/Land Registration

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INTRODUCTION

by Carol Dickerman

In recent years there has been renewed attention on the parts of international development agencies to land registration in Africa. Organizations such as the U.S. Agency for International Development (USAID) and the World Bank have become increasingly interested in the effects that registration of individual titles to rural land may have on agricultural development. Their interest in registration in many ways complements that of a number of countries in Africa which since independence have sought to formulate coherent national land-use policies. Governments in Uganda, Senegal, and Zambia, to name just a few, have been concerned to regulate landholding and monitor development within the country through the registration of rights to land. For both groups registration has been the means to establish a formal, written record of rights to land. The kinds of rights to land to be established by the process, however, have not been identical. Donor agencies have focused their attention on the creation of individual freehold title, emphasizing the heightened security of holding, marketability, and access to credit under such tenure. National governments, on the other hand, have been more concerned to see that land is used productively rather than merely accumulated for purposes of prestige or inheritance or as a hedge against inflation, and for this reason have tended to favor granting more circumscribed rights such as leaseholds or rights of occupancy.

This renewed concern with land registration has generated interest in earlier programs of registration in sub-Saharan Africa and their effects. USAID has funded a program of comparative research by the Land Tenure Center, University of Wisconsin-Madison, and affiliated local research institutions in Senegal, Somalia, Swaziland, and Uganda. This research is assessing the impact on production and other development of a variety of attempts by the nation-state to

take over from traditional land-tenure systems the provision and protection of titles. This literature review and synthesis have been prepared as part of that effort. The World Bank's Economic Research Service has been pursuing a similar program of comparative research, funded in part by USAID, in Ghana, Rwanda, and Kenya. Preliminary results are now becoming available from both these efforts and will soon increase very substantially our knowledge, especially on a quantitative level, of tenure and development relationships in Africa.

The literature review which follows is an attempt to gather in one place data about the diverse efforts at land registration and to describe briefly for each country the various registration programs that have taken place (if any), why they were undertaken, and what subsequent studies of these programs have found. Among other things, it will be seen that the intended benefits, and beneficiaries, of

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land registration have changed over the century or so since the first systems were put in place. In addition to these variations over time,

structure of registration systems established during the colonial era, but also continue to inform the kinds of registration systems adopted today.

A Historical Perspective

The earliest facilities for.the registration of land were established in West Africa in the second half of the nineteenth century. In Lagos (1883), Liberia (c. 1861), and Sierra Leone (1857?), provision was made for the registration of transactions in land. These three early registration systems were systems for the registration of deeds rather than titles, and thus what was recorded was the document evidencing the transaction of a particular piece of real property rather than ownership of the land itself. (Under a title registration system, registration clears and legally confirms the title acquired in a transaction or by inheritance; deeds registration has no such effect, though order of registration may determine which of two inconsistent deeds is enforced.) Deeds registration was, of course, the norm rather than the exception during the nineteenth century, but over the years, in Africa as elsewhere, it has presented various problems, especially when transactions have gone unregistered (as indeed has often been the case). Later attempts to modify the system of deeds registration in these three countries have focused on the need to convert to registration of title.

A second feature of these three registries, unusual in light of later colonial experience with registration, is that they were intended primarily for the recording of African rights to land. Al-most all land registration systems introduced in colonial Africa before 1950--Uganda is a notable exception--were primarily intended to secure European rights to land; in these three areas, in contrast, registered property was largely African-owned. This is not as anomalous as it might seem, however: Liberia, Sierra Leone, and Lagos all had significant nonindigenous African populations, foreigners whose rights to property were not governed by the customary tenure systems. There was thus a need to institute a formal system for the protection of rights to land held by these newcomers, and the result was the introduction of deed registration.

Some of the registration systems instituted in the following decades, though, did not follow this pattern of registration of deeds, but rather introduced the notion of registration of title, adapting a system first instituted by Robert Torrens in Australia in the mid1800s. The Torrens system has clear advantages over deed registration, most notably in the creation of a land register which provides an

legal assistance. Registration of title, to the extent that land was formally registered, soon became the norm in both Anglophone and Francophone colonial Africa.

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That the English should apply to African colonies a model from Australia is not unexpected, but that the French should be as quick to introduce such a system, especially given that it has no metropolitan precedent, is rather surprising. Although none of the sources that we read for this literature review gives an explanation for the early introduction of the Torrens system in French Equatorial and French West Africa (A.E.F. and A.O.F.) as well as in the Belgian Congo, it is possible to speculate that French application of the Torrens system was a product of, on the one hand, experience with attempts to acquire land for settlers in Algeria in the 1830s and elsewhere in North Africa and, on the other, awareness of continental European landregistration systems (in a number of German states, Switzerland, Austria, and Hungary) which, like the Torrens system, were systems of title registration.

In Algeria, after a decade of various, rather unsuccessful efforts to make land available to settlers from France, in 1841, the administration put forth the principle that the state had the power to dispossess indigenous landowners from their land on grounds of "public interest" and then to allocate the expropriated lands to colons. Land adjudged to be vacant similarly became part of the state's domain and could then be ceded to European settlers. The 1841 legislation which asserted this principle accomplished two goals. First, it provided the state with a mechanism for acquiring land to attract European settlers, seen to be a necessary condition for the development of Algeria but a problem that had not been solved in the first decade of French occupation. And, second, by acting as intermediary in the transfer of land from indigenous landholders to settlers, the state was able to validate and guarantee the title, a situation which permitted settlers to secure loans and, at least in theory, provided the necessary conditions for the development of the land. By the time the French began to establish a formal protector-ate in Tunisia in the 1880s, the Algerian solution of title registration backed by the authority of the state would have already proven its value, and as a result a system closely modeled on Torrens was introduced in Tunisia. It was the Tunisian system that was then applied to French West and Equatorial Africa in the late 1890s and early 1900s.1

Until the 1950s, registration of land in most African colonies, whether Francophone or Anglophone, was limited largely to Europeans and done on a one-off, voluntary basis rather than as a compulsory and systematic program. Only a tiny fraction of the total land in subSaharan Africa was actually registered, and those parcels of land that were brought on to the registers were generally of one of two kinds: landholdings in urban areas or, in the rural areas, large

1. For a history of French land policy in Algeria, see John Ruedy, Land Policy in Colonial Algeria; The Origins of the Rural Public Domain (Berkeley: University of California Press, 1967). Discussion of French colonial land laws is found in P. Dareste, Traite de Droit Coloniale, 2 vols. (Paris: n.p., 1932), in the chapter entitled "Propriete," in vol. 2.

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plantation tracts or concessions held by European individuals and companies. In some colonies there were actual laws prohibiting Africans from owning and registering land in certain areas (for example, in A.E.F. prior to 1920, in the Belgian Congo and RuandaUrundi until the late 1950s, and in the settler colonies of Kenya and Southern Rhodesia), but in most cases it was a question of economics: few Africans were sufficiently well-off to afford either the cost of purchasing such land or the expense of registration.

There are, however, a few important exceptions to this picture: in Uganda, Madagascar, the Sudan, and what was then Southern Rhodesia. These exceptions not only serve as illustrations of the conditions under which it was considered appropriate to register African-held lands throughout most of the colonial period but also provide valuable evidence of the some of the effects of registration over long periods of time. In Uganda, for instance, registration was introduced in the Kingdom of Buganda as a result of the 1900 Buganda Agreement. It was largely motivated by the need to restore stability in a kingdom that had been bitterly divided by civil war and to shore up the position of the kabaka or king. The principal motivation was thus political rather than economic, and the agreement provided for the allocation of large tracts of land (up to 8 square miles in area and hence the name mailo land) to members of the royal family, nobles, and 1,000 chiefs and leading private citizens. In Madagascar, systematic registration of land in the central high-land area around Antananarivo was carried out beginning in 1929. In both cases, the land registered, though only a fraction of the total land areas of the colonies, was centrally located and considered to be of crucial importance in the administration and development of the colony.

The need to ensure political stability also contributed to the

the areas registered were, nevertheless, the most valuable in the country, and the British authorities felt it necessary to emphasize that security had returned to the region after the chaos of the Mandist state. As in Uganda and Madagascar, the program of registration was compulsory and systematic--in contrast to the deed registers in Anglophone West Africa--and all land not occupied, and thus not registered, was declared state or crown land. Political considerations were obviously central to the program of registration, and most scholars have chosen to emphasize this line of reasoning, but at least one author has argued that one must also consider the economic benefits to the colonial administration, not the least of which was the subsequent establishment of commercial cotton production on land found to be unoccupied and thus the property of the crown.

In Southern Rhodesia as well, political considerations underlay the establishment beginning in 1930 of what were called Native Purchase Areas, rural areas where Africans might purchase registered freehold land. Creation of these areas was the result of a compromise whose principal goal was to assure Europeans exclusive access

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to freehold agricultural land in the most productive areas of the country by providing separate locales outside the European areas where Africans might purchase land. But in contrast to Sudan, Uganda, and Madagascar, the land set aside for the Native Purchase Areas was hardly central and was, moreover, only marginally fertile and inadequately endowed with infrastructure such as roads and marketing facilities.

These four programs of systematic registration were unusual, and it was only in the years after World ,War II that colonial authori- ties, in East Africa in particular, began to interest themselves in registration of agricultural land as an instrument in the promotion of

disintegrating and that longstanding customs were changing provided the incentive for the consideration of new ideas and innovative solutions, while the Mau Mau crisis and subsequent declaration of the emergency in Kenya in 1952 introduced a note of urgency. The East Africa Royal Commission, appointed in 1953 to consider the social and economic problems confronting the region, offered a number of wideranging proposals for development, changes which it hoped would launch an agrarian and industrial revolution in Kenya, Uganda, and Tanganyika. With regard to agricultural development, the commission recommended that wide-scale programs of individualization and registration of title be carried out in selected areas (EA1).2 Registration of individual title would, it believed, provide greater security to landholders, enhance the freedom to transfer land, and serve as the basis for a system of agricultural credit, all of which were crucial for a transition from subsistence to commercial produc- tion

These recommendations, strengthened by the proposals of the Swynnerton Plan (subtitled "A Plan to Intensify the Development of African Agriculture"), were put into effect in the mid-1950s in Kenya with the introduction of a broad program of land registration in the Kikuyu areas of central Kenya. Land consolidation to counter fragmentation of holdings had not been a part of earlier registration efforts in Africa but figured prominently in the early years of the Kenya program. The program was far from being merely economic in its goals, however. A central objective was the creation of a class of African freeholders, yeoman farmers who would have a stake in the system of property and the governments which sustained it. In the Kikuyu areas of Kenya, the Mau Mau crisis made the changes instituted very much a part of the system of rewards and punishments carried out by the administration in the emergency; political considerations were no more absent from this program of land registration than they had been from earlier ones. It is significant that in much of the literature the program is referred to as a land reform, an accurate description of the far-reaching goals it was hoped to achieve through consolidation and registration.

2. Reference numbers are to citations in the literature review which follows.

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