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

135

LIBERIA

Liberia has had a deeds registration system--a system fraught with the difficulties of verifying title--since the early colonial period, and the result was a high frequency of litigation. The state asserts ownership of untitled land, and land nas come onto the register sporadically, upon application from private individuals to purchase land from the state. The registration of the purchase shifts the land from customary land tenure to freehold. A minimum of ten steps is necessary, each requiring a "dash" to the appropriate person, frequently doubling the effective cost of land. In 1974, a system of title registration based on systematic cadastral survey was enacted and implementation started in Monrovia. However, the pace of application is slow. and registered land outside Monrovia remains under the deeds registry system.

Tarpeh describes the deeds registration system in:

L1 Tarpeh, Dominic Nmah. "A Study of Liberia's Traditional and

Modern Land Tenure Systems." Senior thesis, Cutting-ton College, 1970.

After covering the various systems of traditional land tenure in Liberia, the author discusses purchase procedures for land in both urban and rural areas, both of which involve over ten distinct steps. For farmland, one starts with the town chief, working up to final signature by the President of the Republic. In town, one sees the county revenue agent, county commissioner, etc., up to the President's signature. Although not mandated by the law, each step necessitates a payment of varying amounts.

For Gbanga town in Bong County, the following data on land purchases/

Tarpeh explains the rush to register in 1963/64 as representing the wealthier, more informed elite who could best afford the payments and surveying costs. Further, the author suspects that land was being held for speculative purposes.

136

Social impacts of such registration include the weakening of tribal authorities as possession of deeds becomes increasingly necessary for establishing inheritance rights. Economically, Tarpeh believes that registration encourages the planting of cash crops (especially tree crops which require little attention) by customary holders to forestall others from purchasing the land.

In order to avoid some of these negative impacts, the author suggests the use of a tax graduated by both time and size to discourage holding unworked land or to make large holders pay more. However, Tarpeh admits that a tax might serve to discourage registration altogether.

The stages of land purchasing are also described in:

LE Cobb, Richard et al. "Liberia: Rural Roads." AID Impact

Evaluation Report, no. 6. Washington, D.C.: USAID, 1980.

This paper explores the impact of construction of rural roads on land ac- quisitions, noting that farm-to-market roads intended to benefit small farmers lead to a rush of purchases from the state by elites of land along the road, often even before the road is constructed.

In addition to those impacts of registration mentioned by Tarpeh, Cobb cites the increasing problem of multiple claims to land and the reduction of available subsistence lands as problems arising out registration.

A specific titling project is discussed in:

L3 Liberia. Department of Agriculture. Gbedin Program of Ag- ricultural Development and Rural Development. Monrovia: Government Printer, 1964.

This paper reports on a project in Gbedin started in 1962. The goal was to develop 3,000 acres (half irrigated, half dryland farming) involving 600 families working one 2-1/2-acre field of each type. An agricultural credit corporation was to have initial title to the land, but would transfer it to participating farmers when they paid for it with the earnings from their farming enterprises. No follow-up evaluation was reported for this project.

Delineation of the defects of existing law and how current law could integrate title registration are provided by:

L4 Bentsi-Entchill, Kwamena, and Gerald H. Zarr. "The Assur- ance of Land Titles and Transactions in Liberia." Libe- rian Law Journal, vol. E, no. 2 (1966), pp. 94-110.

The authors give a very brief description of land law, including laws of 1827, 1839, 1861, and 1958. The last required correct surveying of land as a precondition for eligibility for probate and registration. The 1958 law is also considered to be very broad in that it pertains to "every instrument affecting or relating to real property."

Bentsi-Entchill and Zarr see the major defects of current law to be the lack of rules for the priority of instruments to be registered and the lengthy

137

grace period (four months) given between application and action. They assert that the indexing system for tracing transactions in the land registry is inadequate.

While listing the major difference between deeds and title registration as one of State guarantee, the authors still believe that the current system lends itself to adaptation to title registration, especially in towns because of the pre-existence of tax maps.

The actual process of registration of deeds in Liberia before 1974 is detailed by:

L5 McBorrough, W.J. "Status of Cadastral Survey and Land

The differences between deeds and title registration are clearly presented in:

L6 Harrop, J.R.G. "The Introduction on Land Registration in

Liberia." N.p.: United Nations, 1972.

Harrop describes the preconditions necessary for implementing title reg- istration, the foremost being an adequate cadastral survey of any area to be registered. To maintain such a registration system, it must be kept up to date, secure, and purged of deed materials. In addition, the author believes that the system should be decentralized, while operating out of one agency to increase its efficiency. In order to finance a registration system, a tax could be levied based on land size and/or on each land transaction.

Although a title registration system was enacted in 1974, it has only been implemented on a piecemeal basis, starting with the city of Monrovia. The procedures involved are summarized in:

L7 Glay, J. "Country Report--Liberia." Paper presented at the Workshop on Cadastral Surveying, Mapping, and Land Information, Hanover, Germany, 1978.

Registration procedures include the adjudication of ownership by demarca- tion, recording of rights and interests in parcels, and registration of these rights and interests in a land register.

After the enactment of the new title registration law of 1974, the United Nations sponsored a project to title parts of Monrovia; the project is described in:

L8 United Nations. "Land Registration and Cadastral Survey Pilot Project." Draft Report on Project Results. New York, [1978?].

138

The project was begun in 1974 and assumed that title registration would increase security, decrease litigation, create reliable land markets with better credit facilities, stimulate land development, and provide the information necessary to implement registration in other parts of Liberia.

For the project, Monrovia was divided into adjudication areas. Area One consisted of 100 parcels of land and took one and one-half years to complete. Area Two, started in late 1975, involved 980 parcels and was incomplete when this report was written. Difficulties in implementation included problems of investigating titles, the shortage of administrative personnel, and an inade- quate indexing system.

An example of the effort to publicize the registration effort is the following publication:

L9 Liberia. "Republic of Liberia Land Registration Program."

N.p., n.d.

This pamphlet appears to be intended to inform the populace of the proce- dures to follow if they are in an adjudication area in Monrovia.

Another such publication is the following:

L10 Liberia. The Registered Land Law: A Handbook for the Guidance of Officers of the Adjudication Division. Monrovia: Government Printer, 1976.

This is a detailed, thirty-page description of the registration procedure written in non-technical language for government employees involved in the registration procedure.

139

MADAGASCAR

Land law in Madagascar, and regulations governing the procedure for registration of land, have undergone changes in several distinct phases. First, there were the French-based laws, during which time land in the central nighlands around Antananarivo was surveyed and registered beginning in 1929. 'this registration has not been kept up to date, and most of the records still list the person in possession of the property at the time of the original survey as the cur-rent property owner. After independence in 1960 the government placed increased emphasis on developing land by smallholders, and all estates over 5 hectares in size which remained uncultivated were to be broken into smaller units. After the coup in 1972, a reliance on state and/or communal farms developed. However, the dismal performance of these farms has led since 1982 to a de-emphasis on these forms of landholding.

There has been no systematic study of the effects of registration on agricultural production in Madagascar, and most of the literature dealing with land tenure discusses the legal framework of customary and written land law.

Two discussions of customary land tenure systems deal with the effects of the French-based registration system and the lack of suc- cess this latter system has had.

MA1 Blanc-Jouvan, Xavier. "Les droits fonciers collectifs dans les coutumes malgaches." Revue Internationale de Droit

Comparé 16 (1964): 333-368.

Blanc-Jouvan states that 96 percent of the land in Madagascar is held under customary land tenure, wherein the extended family plays a relatively independent role, and his analysis concentrates on the role of individual property rights within the framework of customary land tenure. He points out that individual property existed in the hign plateau region before the arrival of the French. The author says that the failure of legislators to clearly define customary tenure and recognize customary use rights exacerbated the problems in implementing land laws.

Although not specifically about registration, a book useful to the consideration of registration and titling is:

MA2 Rarijaona, Rene. Le concept de propriété en droit foncier de Madagascar. Besancon: Imprimerie de 1'Est, Université de Madagascar, 1967.

Rarijaona uses the first portion of his book to lay out the customary land tenure systems and concepts, such as means of acquisition, transactions

140

in land and succession. He then traces the evolution of land tenure through its interaction with judicial practices, as well as its response to both internal and external pressures. Among the trends in customary tenure systems that Marijuana notes are individualization of tenure and de-sacralization of process. He further states that the failure to implement land laws (such as registration) results from the following factors: (1) laws fail to account for social and economic realities; (2) they tend to address only certain segments of the population; (3) sporadic execution .of laws results in benefits for the few; and

(4) administrative rigidity, centralizatiion, and isolation of administrative departments limits application.

More specific treatment of registration and titling is given by:

MA3 Rabemanda, Andre. "L'evolution de la propriété immobiliare

a Madagascar." Revue Juridique, Politique, Indèpendance et

Cooperation 24 (1970): 723-734.

Rabemanda gives a brief history of land laws, starting with legislation

facilitate access to individual land ownership without completely repudiating customary tenures. Potential effects on customary tenure are given only cursory mention.

Specific information on titling before its de-emphasis after 1972 is provided in:

MA4 Gasse, Victor. Les regimes fonciers Africains et Malcache. Paris: Librairie Genérale de Droit de Jurispru- dence, 1971.

Between 1959 and 1966, 14,629 titles were issued for 178,400 hectares with the following distribution:

The author cites problems of expense, lack of personnel, and inability to keep the register current as impediments to increasing land registration. A short section is devoted to describing registration procedures and what land is registrable.

141

The most complete discussion of registration legislation is found

in:

MA5 Rakotonirainy, Germain. La dynamique des structures fon- cieres sur les hautes terres Malgaches. N.p.: Université de Madagascar, 1984.

The author traces the laws pertaining to registration and titling of land, which include the law of 9 March 1896; decrees of 4 February 1911, 28 September 1926, and 25 August 1929; and ordinances of 3 October 1960, 62-110 of 1962, 73073 of 1973, 74-021 of 1974, 74-022,of 1974, and 74-084 of 1974.

Under the French, the law of 1896 established registration for certain lands, while the decree of 1911 made registration obligatory for (1) lands alienated to the State, (2) lands acquired by Europeans from indigenous peoples, and (3) urban areas (at the discretion of the Governor-General). Furthermore, the decrees of 1926 and 1929 permitted granting indigenous people title if they had had the land longer than 20 years and if they had individually put (and kept) the land in production.

The period 1960-1972 saw ordinances aimed at establishing services to ensure titleholders' rights, spelling out procedures, and specifying the legal effects of registration. After the coup, the new government began to institute collective registration in 1974, managed by elected local governmental institu- tions (village councils or fokontonolona). With the failure of these councils to keep adequate records, a national Office of Lands, Survey, and Agrarian Reform was created.

In 1985, a sweeping reorganization of the land administration system was undertaken, but no analyses are as yet available on this development. This information and a short summary of land tenure in Madagascar can be found in James Riddell and Carol Dickerman, "Madagascar," Country Profiles of Land Tenure: Africa 1986, LTC Paper no. 127 (Madison: Land Tenure Center, University of Wisconsin, 1986), pp. 104-108.]

143 MALAWI

British colonial law in Malawi allowed for registration of deeds in land, a policy that benefited Europeans owning land in urban areas and agricultural estates and plantations. At one time, significant amounts of land had been allocated to Europeans for agriculture. Many of these estates .no longer exist, but of those that remain, held in freehold and devoted to the production of tea for export, most are located in the Southern Region of the country. In all, some 53,903 hectares are held in freehold, according to 1988 figures of the Department of Lands and Valuation.

laws affecting land use and allocation. These laws were the: (1) Registered Land Act, (2) Customary Land (Development) Act, (3) Local Land Boards Act, and (4) Land Amendment Act. The first law created the legal means for registration of title. The second established the means for adjudication of disputes over customary land and for its "conversion" for "better agricultural development." This bill was later supplemented in 1971 by the Adjudication of Title Act, which allowed for the adjudication of rights in land other than that held under customary tenure. The last act, the Land Amendment Act, established criteria for the privatization of customary land and vested control of customary land in the head of state.

At the time these acts were put into effect, Banda argued that the laws would "revolutionize our agriculture and transform our country from a poor one into a rich one" (quoted in S.R. Simpson, Land Laws and Registration, p. 457). Banda further stated:

Under our present system of land holding and land cultivation no one either as an institution or as an individual, will lend us money for developing our land because our present methods of land holding and land cultivation are uneconomical and wasteful. They put responsibility on no one. . . . No one holds lane as an individual. Land is held in common (ibid., p. 458).

Banda's comments set the stage for the debate on "customary" versus "modern" (including land registration) land tenure in Malawi.

The four acts enacted in 1967 have been reviewed by Rowton Simpson in the following article:

MW1 Simpson, Rowton. "New Land Law in Malawi." Journal of

Administration Overseas 7 (1967): 221-228.

Simpson covers the salient points of each act and compares each law to other land laws in East Africa and England. He also comments that a new or

144

additional land law is needed, one that converts existing documentary title to registered title. He writes that it is undesirable to have a distinction between titles issued under English law and titles issued under customary law. Consequently, it is imperative to devise a law that will convert title deeds recorded on the deeds registry to registered title. Simpson notes various precedents, from England and other African and Caribbean countries, which may serve as models for this new land law.

A brief outline of Malawi land tenure, registration and the government settlement programs is presented in:

MW2 Nothale, D.W. "Land Tenure Systems and Agricultural Pro- duction in Malawi." In Land Policy and Agriculture in Eastern and Southern Africa, edited by J.W. Arntzen, L.D. Ngcongco, and S.D. Turner, pp. 127-132. Tokyo: United

Nations University, 1986.

Nothale reviews the general land tenure types recognized in Malawi. Beginning in 1967, land in Malawi was classified as (1) customary (African Trust Land prior to independence), (2) public, and (3) private land. Customary land is largely regulated by village elders, headmen, etc., according to the rules and regulations specific to each group and is supposedly inalienable. Public land is land that is acquired and used by the State; it also includes all other land that is not designated as customary or private. Private land is held, used, or occupied under freehold, leasehold, or certificate of claim which is registered. Customary tenure is the most common form of tenure, comprising approximately 80 percent of the land in Malawi. Leasehold arrangements, how-ever, are becoming more prevalent, especially as a result of the large agri-

cultural settlement projects.

Nothale reviews the discussion concerning fragmentation of land holdings. At issue is the impact of fragmentation on production. Beginning in the colonial era, fragmentation was seen as a deterrent to agricultural production. Consequently various plans were designed to consolidate and register prime agricultural land. In the 1950s and early 1980s, the administration implemented policies to consolidate and redistribute plots of equal size to farmers. By 1959, more than 81,000 hectares of land had been registered under this plan. The premise that fragmentation adversely affects production has been a central argument in much of the literature on Malawi registration programs. Nothale briefly discusses the value of consolidation of land holdings and questions whether consolidation will diffuse the problems associated with fragmentation or merely create additional problems.

A more precise, anthropological/historical discussion of the evolution of Malawi land tenure policies was prepared for the World Bank in 1985:

MW3 Riddell, James C. "Customary Tenure in Malawi." Paper prepared for the World Bank. Washington, DC, 1985.

The paper focuses largely on customary tenure (pp. 3-13), rules of access and transfer, and specifically the differences and similarities in land tenure