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

155

MAURITANIA

The information on titling and registration in Mauritania is scant, although there are laws in effect which provide for the reg- istration of both urban and rural land. Under a 1960 decree, title can be granted for urban parcels. The critical legislation for rural land is Ordonnance 83.127 of 5 June 1983 and its implementation decree 84.009 of 19 January 1984, which abolish traditional tenures and provide for the registration of rural holdings. In providing for the establishment of a land registration system, the law mandates that a land register be established in each dèpartement. All subdivisions of collective land must be approved and supervised by administrative authorities and registered. For collectives to retain their lands, they are required to form cooperatives.*

The main emphasis of the legislation, however, is on the state's ability to acquire needed land for development projects. This aspect of the law and its potential effects are discussed in the following:

MR1 Park, Thomas K., ed. Land Tenure and Development in the Islamic Republic of Mauritania: Fuuta Tooro and the Gorgol Region. Madison: Land Tenure Center, University of Wisconsin, 1988. [Relevant sections are pp. 14-18, 23, and 32-37.]

The principal advantage of the legislation is its framework for the set- tlement of conflicts with regard to land rights between the needs of the state, on the one hand, and the dictates of shari'a [Islamic law] and customary tenure systems, on the other. A series of articles in the 1983 ordinance sets the basis for the state's establishment of domain land and provides for the possibility of its reallocation as concessions. The state is thereby empowered to acquire land for development projects without "being hindered by refusals or speculative demands of particular individuals" (p. 23). Although Article 3 unequivocally states that the customary Land tenure is abolished, other provisions of the law make it clear that what is really cancelled is the right to appeal to customary tenure rules to counter the state's declaration of domain land; customary tenure, thus, remains in effect except where it comes into conflict with the development effort (p. 15). The legislation also declares that the state

recognizes private property as the standard form of ownership and, by providing for land registration, institutes a means for the establishment of individual title. But here, too, the language of the law is equivocal;

* The full text of both of these laws has been published by the Government Printer in Nouakchott. Translations may be found in Thomas K. Park et al., Land Tenure Study of the Dirol Plain (Madison: Land Tenure Center, University of Wisconsin, 1987), Attachment 2.

156

as Park notes, "Registration is encouraged but does not entirely replace the standard shari'a procedures" (ibid.).

It is not clear as yet what the effects of this legislation will be. The potential for its misuse is great, but at the time that the data for this study were gathered (in 1985), there "was no convincing evidence that the legislation was being used systematically to allow groups that had no traditional claim to allow [flood plain] lands to acquire such a claim" (ibid.).

[For a further discussion of the impact of this legislation on development, see S10 in the Senegal section, especially pp. 58-71.]

157

MOZAMBIQUE

Land registration in Mozambique is rare. At independence, in 1975, all land was nationalized and there is no system of registration for customary land. Some private farms were respected by the new government but they only occupy a very small percentage of the land.

During the colonial period legislation regarding land ownership varied. In the early years, land which was considered unused by the Portuguese--that is, it was not settled by Portuguese--belonged to the crown. The King of Portugal could then make concessions to settlers and these concessions had perpetual hereditary rights. How-ever, since agriculture in Mozambique was not important to Portugal until the twentieth century, few Portuguese people settled in the colony for this purpose.

In 1881 all the land was granted to three companies: the Companhia do Mozambique, the Companhia da Zambezia and the Companhia do Niassa. These companies could then sub-grant land to other companies or individuals for limited time periods. The companies were subject to the laws passed by the Portuguese government during the twentieth century with the goal of encouraging Portuguese people to settle in the colonies.

Rigoberto Sandoval in his article ["A New Hope, A New Country: Mozambique's Land Reform," Land Settlement and Cooperatives, no. 1/2 (1974), pp. 43-51] states that a dual agricultural system developed in Mozambique. One sector was geared towards producing export crops using capital-intensive techniques and another sector characterized by small peasant units practicing subsistence agriculture. Sandoval concludes that the colonial system created a minority of well-to-do landowners and a majority of poor peasants. This situation was not a direct result of the registration system. There were other fac-

tors involved, such as the amount of capital, the technology and the forced labor used in the private export-oriented sector which caused this disparity.

At independence the government's policy was to create state farms and agricultural cooperatives, support for which--it should be em- phasized--has varied throughout the last ten years. Although state farms and agricultural cooperatives receive government support, there is a small private sector. This sector has its land rights guaranteed by the state, which ultimately owns the land. Since the government's emphasis has been on land use rather than land registration, the literature of post-independence Mozambique deals mainly with the former.

159

NAMIBIA

The worldwide interest in the issue of Namibian independence and the validity of the mandatory powers held by South Africa has generated a large volume of literature on this African country. However, very few references deal even obliquely with the subject of land registration in Namibia--probably in large part due to the primacy of the political issues and the fact that the country's wealth is mineral rather than agricultural. Namibia has an extremely low population density and a shortage of arable land (even dryland cropping is impossible in 70 percent of the country).

The best introduction to the history of land alienation in Nami- bia is provided by the following dissertation:

NA1 Crowell, W.U. "The Evolution of South African Control over South West Africa (Namibia)." Ph.D. dissertation, St.

John's University [New York], 1975.

Crowell provides an historical account of the issues surrounding the proposed independence of Namibia and the efforts of the UN and local political groups to terminate South African rule. On the subject of land acquisition, he describes the alienation of land from indigenous Namibian peoples during both the German and South African colonial periods.*

NA2 Anschel, Kurt R., and Russell H. Brannon. "The Agricultural

The purpose of this report is to provide current information on the agricultural sector in Namibia and to suggest a framework for analyzing the requirements for the development of agriculture in an independent Namibia. Very little attention is paid to land registration, but it is pointed out that all white-owned farms are held privately, whereas in the "homelands" land is held communally and distributed in accordance with customary practices (pp. 29-30). The report recognizes that a major problem facing an independent Namibia is the redistribution of land and the social and economic consequences of different land reform options. The authors assert that the indigenous land tenure system

* For details on physical aspects, such as land potentialities (Chapter 5), as well as the cultural and political composition of Namibia, see J.H. Wellington, South West Africa and Its Human Issues (Oxford: Oxford University Press, 1967).

160

is one of the "constraints resulting from the socio-economic character of the indigenous population" (p. 49). In the penultimate chapter various agrarian reform policy options are discussed, including freehold, customary communal tenure, nominal public ownership and public ownership. In each case reference is made to the experiences of other African countries.

NA3 Duggal, N.K. "Toward Agrarian Reform: Policy Options for

Namibia." Report published by U.N. Institute for Namibia.

Lusaka, 1979.

The Prohibited Areas Proclamation of 1928 divided Namibia into distinctive black and white areas in accordance with the separate development policy of South Africa. The report lists the land policy objectives of the two political parties at opposite ends of the political spectrum. SWAPO demands the aboli-

tion of the "Bantustans" and a vigorous land reform program to return land to the indigenous people, whereas the DTA advocates minor reforms with the reten- tion of the separate development policy.

NA4 U.N. Institute for Namibia. "Agrarian Reform Options for an Independent Namibia." Discussion Paper for Seminar on Agrarian and Land Reform Programmes for an Independent

Namibia, Lusaka, 22-26 January 1979.

Describes the ecology and development potential, different land categories, current agrarian structure and future reform options, production organization and agrarian reform auxiliary measures (including credit institutions, extension and education). Types of land tenure considered in the paper include leasehold, state ownership and freehold (pp. 57-61).

One of the few papers that deals with land registration practices in Namibia is Van den Huevel:

NA5 Van den Heuvel, P.A.L. "A Short History of the Survey and Registration of Land in South West Africa." South African Survey Journal, 19/20, 114/115 (1983/1984): 4-15/20-29.

the South African takeover. The mandate granted to South Africa by the League of Nations included the right to "apply the laws of the Union of South Africa to the territory" (p. 20). The German method of registration, based on methods used in Germany, was gradually replaced by the registration of deeds system operating in South Africa. The author refers briefly to registration in the area occupied by the Rehoboth people, but otherwise gives no details of land tenure or registration in the regions occupied by the indigenous people of Namibia. The major portion of this paper deals with survey techniques, admin-

istrative details on record-keeping practices and with legislation affecting surveying and, to a lesser extent, registration.

161 NIGER

Registration of land was first introduced into Niger by the French shortly after the turn of the century, but during the colonial period few titles were actually registered (2,040 by 1957, fifty years after the first title was issued) and most of these were of urban land in Niamey. Since independence, the pace of registration

has accelerated somewhat (5,891 titles issued by 1970) , but there has not been as yet any study of the effects of registration or even a breakdown as to the location and size of registered holdings. (Figures are from N1, below.)

An overall description of the different customary and written systems of land tenure is provided in:

N1 Niger. "Note sur: Le régime foncier au Niger; Les droits coutumiers; Les domaines public et privé." Paper presented at the Seminar on Cadastre, Addis Ababa, 25 November-9 December 1970. Addis Ababa, U.N. Economic Commission for Africa.

Registration of land imposes on the landholder development conditions. At the time the initial application is made, title is held by the State, which only turns it over to the individual upon fulfillment of the development conditions. Once land is registered, no other claims to that land are legally recognized. It is noted that most registered land is urban, with only a few registered rural parcels. Lastly, this document describes in detail how surveying is to be carried out.

Less useful in terms of registration, but interesting from the perspective of surveying is:

N2 Kaouge, Moumouni. "Cartography, Topography, Land Regis- tration and Town Planning: Review of Methods Used in Ni- ger." Published article, source unknown.

The author talks about the status of mapping and surveying in Niger. Kaouge also mentions that the land register is kept under the Real Estate, Registration, and Conservancy Service.

163

NIGERIA

There are as many different customary tenure systems in Nigeria as there are ethnic groups (approximately 400). Colonial and later independent governments designed different land tenure policies for the three major regions of the country. Land policy was based on (1) political and economic goals of the state in each specific region of the country, and (2) the state's ability to enforce land policy in each region. In the north, policy evolved largely as a result of the Crown's relationship with the emirates. The emirates provided a conduit through which the British could control peasants and thus guarantee uninterrupted extraction of commercial and agricultural surplus. In 1900, the British enacted the Native Land Proclamation, which stipulated that only natives of the north could acquire interests in land in northern Nigeria. This law helped to prevent the emergence of landless peasants. In 1910, the British went a step further and ostensibly nationalized all land in the Northern Protectorate with the enactment of the Land and Native Rights Proclamation. The law vested control and administration of all land in the government of northern Nigeria. Title to land became vested in the state and the occupier's interest was defined as a right of occupancy. The law was revised and reenacted in 1916 as the Land and Native Rights Ordinance and again later reproduced and reenacted in 1962 as the Northern Nigerian Land Tenure Law. There are almost no socioeconomic data available on the effects of these laws.

In the southern regions of the country, attempts to reform land tenure were a response to the needs of commercial interests in the area. Property, and particularly land, was becoming more commercialized in both urban and rural areas. Rapid economic development, particularly in Lagos, fueled immigration and congestion. Land for residential and commercial purposes became increasingly scarce and valuable. In rural areas, the development of the cocoa industry fueled the commercialization of land. The resulting changes in socioeconomic relationships led to tension and conflict over land. Attempts to impose a "uniform land policy," like the one in the north, were stymied by an unusual union of colonial and African entrepreneurs. Consequently, the history of land administration in southern Nigeria is more a patchquilt of law and policy than is the history of land policy in northern Nigeria.

Different systems of land registration were also developed and implemented in the different regions. In the north, there were two systems of registration, a regional government system of registration of instruments and a local government system for the registration of transactions. A land registry for the north was established first in Kaduna in 1915. There are also very little data on the success of these registration programs. In the south, both title and deed registries were developed concurrently (and continue to exist) while in the Southern Protectorate, a deed registry was implemented. After the amalgamation of the Northern and Southern Protectorates in 1914,

164

the Land Registration Ordinance of 1915 was promulgated. It was later reenacted in 1924 and remained in force until 1945 when it was repealed and replaced by provisions of the Richards Constitution.

Beginning in the 1950s government officials began to consider establishing a more uniform system of land tenure in the country, and a series of committees was appointed to look into this possibility. The reports of these committees, together with commentaries on land legislation (both proposed and enacted), constitute the core of literature dealing with registration of land in Nigeria. The per- spective of these reports and articles is decidedly legalistic, and questions of agricultural productivity remain largely unstudied. Unfortunately, little concrete change in land registration procedures resulted from these reports, but what is particularly noteworthy is the consistency in the recommendations for change. Perhaps most important is that the authors urged that both family and individual lands be made registrable. They also recommended that title registration replace deed registration and that registration be systematic rather than sporadic.

These issues remained unresolved, and in the 1960s and 1970s, additional problems began to emerge. First, the southern part of the country witnessed a tremendous increase in land disputes, resulting in costly litigation; second, the state had difficulty acquiring land for development purposes; and, finally, the absence of a uniform statutory land policy in the south frustrated the acquisition of land by competing military and civilian interests. These issues gave rise to a number of books and articles calling for the enactment of new legislation. In contrast to the earlier literature, these publications are more empirical and less legalistic in their perspectives, and their authors are more often trained in the social sciences than in law.

In 1977, the government established the Land Use Panel to study the various land tenure systems in the country and to develop a plan to incorporate them into one national system. The committee issued two reports: a majority report, which argued against the extension of the 1962 Land Tenure Law of northern Nigeria to the entire country; and a minority report, which advocated land nationalization. The minority report, prepared by R.K. lido, from the Department of Geography, University of Ibadan, was accepted by the government. In 1978, the military promulgated the Land Use Decree, which reproduced most provisions of the 1962 Land Tenure Law of northern Nigeria. The decree vests all land in the military governor of each state and provides for the issuance of certificates of occupancy for urban land and rights of occupancy for rural land. The law sets maximum holding sizes at 500 hectares for agricultural purposes and 5,000 hectares for grazing purposes. Undeveloped urban holdings are limited to 0.5 hectare. The law establishes terms for access, succession, duration of certificates, and ground rents. Land rights may be revoked for improper land use, that is, failure to fulfill the conditions of use for which the certificate was awarded or for over-riding public interests.

Customary tenure relationships continue notwithstanding the stat- utory laws; however, these relationships are not unaffected. We have