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

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who received action on their CO applications earned more than N2,500/year. Last, the most common reason listed by officials for refusing CO applications was the lack of money to develop a plot. Thus, both urban and rural poor have been effectively barred from the land allocation process under the decree in these two states.

Okpala raises many of these points concerning unequal access in:

NI28 Okpala, Ifebueme. "The Land Use Decree of 1978: If the Past Should be Prologue..::" Journal of Administration Overseas 18 (1979): 15-21.

Generalizing for the whole of Nigeria, Okpala states that during a recent period, over 70 percent of State land allocations were made without advertising. He believes that these inequalities in land access could lead to landlessness, which had not been a significant problem before implementation of the Land Use Decree.

A relatively recent work reviews legal cases that have arisen with regard to the decree:

NIE9 Omotola, J.A. Cases on the Land Use Act with Supreme

Court Decision. Lagos: Lagos University Press, 1985.

Omotola has selected cases wnich refine and throw further light on the various provisions of the Land Use Decree. As he notes in his introduction, "The Act is accepted by all to contain many provisions which defy understanding. A

under such headings as validity of the decree, jurisdiction, effect of certificates of occupancy on land claims, customary tenancy, revocation of rights of occupancy, with a final section on a Supreme Court decision ruling which stated that the decree is an ordinary statute and not part of the constitution. This particular ruling is important as the legality of the Act has been frequently challenged since the return to civilian rule in 1979. Many ambiguities remain and these are highlighted by the many contadictory court decisions noted in this collection. Omotola supplies a brief introduction which summarizes and emphasizes the salient issues of each case.

A study conducted in gun, Ondo, and Oyo states in 1982 investigates the "extent of implementation as well as the administrative, political and human problems encountered in the process of putting the Act into effect." This study is:

NI30 Fabiyi, Yakub L. "Land Administration in Nigeria: Case Studies of the Implementation of the Land Use Decree (Act) in Ogun, Ondo and Oyo States of Nigeria." Agricultural Administration 17 (1984): 21-31.

Examining applications for certificates of occupancy in the three states of Ondo, Ogun, and Oyo for the period from October 1978 to the end of 1981,

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Fabiyi found varying rates of approval, with only 64 percent approved in Oyo State and 92 and 95 percent for Ogun and Ondo, respectively. He explains this difference by the fact that in Ondo state, with the highest rate of approval, there is no requirement that applications for certificates be publicly adver- tised, as is done in Oyo and Ogun. On the other hand, he attributes the low rate of approval for Oyo to the time delays caused by responding to the large number of objections filed against the applications. This explanation, though, is unsatisfactory for while it offers a reason for lengthy procedures, it throws little light on why Oyo applications are more often disputed than those in Ogun, where advertisement is also required.

Fabiyi believes that the implementation of the Land Use Act poses "almost intractable problems." These problems include: (1) the lack of a definition of what constitutes improvement to the land, (2) the need for an appropriate method for assessing the value of improvements, (3) the scarcity of replacement agricultural land for displaced individuals, (4) delays in and shortages of funds for compensation payments, (5) a shortage of trained personnel, and (6) official corruption. He recommends that the necessary training and funding be made available to see that the act is honestly and carefully implemented and that accurate records be kept of the application procedures. He thus sees that the problems can be remedied by a greater responsiveness and efficiency on the part of the administration rather than by any amendments to the act as it is now written. He concludes that "a successful land reform coupled with other agrarian reform measures . . . would go a long way towards revolutionalizing the country's agricultural sector."

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RWANDA

Registered land in Rwanda is largely limited to the urban areas, but population pressures on land have increased the numbers of dis- putes in recent years and in one commune in northern Ruhengeri in the late 1970s the residents themselves demanded that their fields be measured and registered in the presence of witnesses. This was done by commune officials at a cost of about S1 per family, and farmers in the area have handwritten notebooks in which are recorded their registered

schemes for smallholders. Although certain activities and services are

to comply with various regulations in the Ministry of Agri-culture concerning crops and production techniques. The 2-hectare holding is not divisible and only the wife has the strict right to inherit her husband's land in the paysannat. If both parents die, the son (usually the eldest) designated by the father before his death as the new head of the family reports the death to the commune authorities and signs a new contract with the government in order to legalize his rights to the land. Sales and rentals of parcels are not permitted, but rentals do nevertheless occur. Production levels on the paysannats are not higher than elsewhere in the country, but the reason for this is apparently less the tenure arrangements than the government's sometimes onerous regulation of crop selection and crop prices. (See James C. Riddell and Carol Dickerman, eds., Country Profiles of Land Tenure: Africa 1986, LTC Paper no. 127 (Madison: Land Tenure Center, University of Wisconsin, 1986).]

A paysannat and ranching scheme in Mutara, in northeastern Rwanda, designed to provide individual title to land and various social and technical services for the very poor, was evaluated by Renè Lemarchand for the World Bank in 1978.

R1 Lemarchand, Rene. The World Bank in Rwanda; The Case of the Office de Valorisation Agricole et Pastorale du Mutara

(OVAPAM). Bloomington: African Studies Program, Indiana University, 1982.

Lemarchand's evaluation is a very critical one (so much so, apparently, that the World Bank preferred not to make use of it), for he charges that the Bank's OVAPAM project in Mutara, rather than alleviating rural inequalities by

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paysannat of some 6,000 families and the setting up of cattle ranches for approximately 3,000 families. In all, the project was to cover some 51,000 hectares. Paysannat families were to receive title to 2-hectare holdings; the holdings were inheritable, but could be passed on to only one heir. Ranching families were to be given pastureland for their exclusive use and thus encouraged to substitute a more sedentary existence for their traditional pattern of transhumance.

In his investigations Lemarchand discovered that very different people had benefited from the project than had originally been planned. The two principal categories of beneficiaries he found were (1) descendants of traditional landowning lineages in the area and (2) members of the emerging bureaucratic structure (teachers, extension agents, etc:). Many were absentee landowners, who then hired landless rural workers to farm their holdings. What had emerged, according to Lemarchand, was "a kind of retraditionalization of patron-client ties, with the beneficiaries acting as landed patrons vis-a-vis landless workers. The result, predictably, has been precisely the opposite of what the individualization of land tenure was supposed to achieve: to the extent that the relatively affluent were allowed to further enlarge their resource base, the rate of social inequality among the rural population has tended to increase accordingly" (p. 14).

Lemarchand attributes the failure of the project to reach the targeted beneficiaries to a lack of consideration of the social and political realities in Rwanda in general and in Mutara in particular. Project designers neglected to address very important questions of ethnic rivalries and power relations at both the national and local levels, questions of fundamental bearing on the operation of the project. As Lemarchand writes, "many fundamental issues--including access to land, price-setting for basic food crops, the distribution of social benefits, the recruitment of agricultural extension agents, and so forth--are often decided on the basis of sociopolitical considerations which bear only a distant relationship to the manner in which donor policies are conceptualized and implemented" (p. 2). By failing to address these issues, planners of the Mutara project (as elsewhere in the Third World) insured that the project would reinforce rather than alleviate the existing unequal relations between the powerholders and the powerless.

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SENEGAL

Although originally subject to the same land administration laws as the other francophone countries of West Africa, laws passed since independence have established in Senegal a new system of land tenure. As President Leopold Senghor commented at the time, it was the in- tention of the reformers to introduce a system which would provide for a middle course between the extremes of full individualization of title, on the one hand, and nationalization, on the other, a system which would encourage "free cooperation" (quoted in S3, p. 12). Under the National Domain Laws of 1964 and 1972 all land not previously registered is the property of the State. Moreover, there is to be no further registration of land. These laws also provide for the establishment of local councils to replace traditional authorities in supervising land use and distribution. These councils are empowered to draw up registries of land (livrets fonciers), which record allocations of land to individuals by the State. Although the two laws have now been applied throughout the country, only in rare cases have the councils begun to draw up the registries provided for by law. (For a fuller discussion of these laws, see James Riddell and Carol Dickerman, eds., "Senegal," Country Profiles of Land Tenure: Africa 1986, LTC Paper, no. 127 (Madison: Land Tenure Center, University of Wisconsin, 1986), pp. 158-163.]

Although the 1964 law disallows any further registration of land ownership rights, the new system provides for formal recognition of occupancy rights. This is discussed in:

Sl Niang, M. "Reflexions sur la réforme foncière sénégalaise

de 1964." In Enjeux Fonciers en Afrique Noire, edited by E. Le Eris, E. Le Roy, and F. Leimdorfer, pp. 219-227.

Paris: Karthala, 1982.

Niang likens the new system to a form of registration of rights to "occupy" rather than to own land, and sees the legislation as an attempt to unify customary, colonial, and Muslim land tenure systems. He states that the lack of specific legal and administrative frameworks in the 1964 law resulted the enactment of the 1972 law, which provided for rural councils to implement the laws.

The author believes that this new system is subject to abuse since legiti- mate land rights of customary holders may be undermined by those who better understand the law or who can better afford to undertake. the stipulated de- velopment. Further, this law is seen to disadvantage pastoralists who do not continually occupy their land. The article includes the text of the 1964 law.

Possible consequences of these two laws on the land tenure practices of one particular ethnic group are the subject of the following article:

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S2 Van der Klei, Jos. 'Customary Tenure and Land Reform: The Rise of New Inequalities among the Diola of Senegal." African Perspectives, no. 2 (1978), pp. 35-44.

The author repeats Niang's assertion that loaning systems are being undermined by the Domain laws, and predicts the elimination of loans of land, thereby increasing inequalities among the population. He also predicts that town dwellers will lose rights to village land since they are not there most of the year to "occupy" it.

A broader study of the impact of the National Domain Law in the Basse Casamance in both rural and urban areas was carried out in 1982/83:

S3 Hesseling, G., with M. Sypkens Smit. Le Droit Foncier au Senégal; L'impact de la réforme foncière en Basse Casa- mance. Leiden: African Studies Centre, n.d.

Gerti Hesseling's inquiry into the impact of the land reform is constructed around two hypotheses: that application of the 1964 Law has been accompanied by economic and social change resulting in increasing numbers of conflicts and that the application of the law has varied widely, influenced by the composition of the rural council itself as well as by customary and Islamic practices. To test these hypotheses, she interviewed the presidents of twentyfive rural councils, analyzed records of rural council proceedings, and conducted more detailed research into land transactions and disputes in three specific locations, one in Ziguinchor, a second near the town, and a third in a rural village.

Hesseling found that the implementation of the 1964 Law (applied in Basse Casamance since 1979) has indeed been uneven, with very little centralized guidance given to rural councils and with a greater impact in the more urban- ized areas. All of the presidents of rural councils voiced complaints about how the law has been implemented, many focusing on financial and administrative bottlenecks. In addition, rural council members are often without much experience in handling land matters and lack detailed knowledge about the 1964 Law, what little information they possess often having been acquired in a three-day seminar. This has led to instances of land allocations contrary to both the

said they knew nothing about the rural council and its activities, while others said they did not go to the council to get land. In this village, apparently, Diola customary practices have adapted to permit land rentals to outsiders. In other ways, however, individuals are very much aware of the law and its potential impact: the incidence of land disputes has increased since 1979, with disputes over loaned land increasingly common. In some instances, these loans are several generations' old, and awareness of the law's provisions has pushed the parties to clarify their positions. Hesseling notes that most of the decisions have gone in favor of the borrower.

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In Ziguinchor itself, there has been greater adherence to the provisions of the law, albeit unevenly. Virtually everyone is aware of the law, and individuals assume that it will eventually replace customary practices, although it has not as yet done so entirely. Many apparently attempt to ensure the validity of land transactions by resorting to particular features of both customary and "modern" systems.

In the more isolated rural areas, by way of contrast, the 1964 Law has had little effect on land use patterns and transactions. Smit, an anthropologist,

of flooded rice fields had actually increased since his original study. This was not expected, and he explains this result by the fact that endogamous marriage patterns have created close and overlapping family ties which support loans of rice fields. Loans of peanut fields, on the other hand, have fallen. Peanuts are a newer crop, and their cultivation is not closely linked with the social structure of the village. Then, too, peanut cultivation is not as profitable as it has been in the past. But Smit does not believe that individuals are unaware of the potential impact of the 1964 Law. Disputes over land are rare in this small village, and when they do occur, they are likely to be resolved by authorities such as senior family members, village elders, or the village chief and not by the rural council. Smit concludes that when change does come to land use patterns in the village, it will be introduced from the outside by development projects, by outsiders who wish to acquire land, or by "évolués" with "grandiose projects" in mind (p. 77).

Hesseling focuses on the impact of the 1964 Law in Ziguinchor alone in the following:

S4 Hesseling, Gerti. 'Land Law in a Semi-Urban Context: The Case of Ziguinchor." In Aspecten van Staat en Maatschap- pig in Africa, pp. 367-390. Leiden: African Studies Cen- ter, 1984.

As part of a study of the nature and interaction of the customary and national land tenure systems in a peri-urban area, Hesseling describes the process of obtaining newly demarcated urban land from the State. Implemented in the 1970s in Ziguinchor, the program aimed in particular at the regularization of land rights in the lower-class compounds of the town. A n applicant first went to a land allocation board, from which he received a "ticket" with the plot name and number written on it. A n y person who could prove that he was a family head and that he lived in the compound with his family was entitled to a plot approximately 400 mE. The next step required the applicant to obtain an official occupancy permit, an expensive and time-consuming procedure, and it was at this point that most people stopped. By the the early 1980s less than 3 percent of ticket holders had acquired the official permit, believing that the ticket conferred title.

Hesseling provides examples of four cases from Ziguinchor in which cus- tomary notions of land tenure are at odds with the modern, statutory system and s h o w s h o w these four individuals respond differently to challenges to their land rights.

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In the following paper, Hesseling investigates in greater detail the disputes arising from the allocation process in Ziguinchor:

S5 Hesseling, Gerti. "Land Conflicts and the Law in Ziguin- chor (Senegal)." Paper presented at the Second Interna- tional Symposium on Urban Anthropology, Leiden, 16-18 July 1985.

Allocation of land in the newly subdivided quarters of Ziguinchor was highly contentious. Many houses were demolished (60 percent) as land was assigned to individuals who had not previously occupied it. In addition, in almost a third of the instances, the allocations gave rise to disputes. In this paper Hesseling discusses the nature of these disputes as well as the institutional framework for their resolution.

Most of the disputes are the product of what, under Senegalese law, is termed "illegal occupation," occupation of land to which one does not possess formal legal rights. In many countries squatting is not prosecuted, but in Senegal this is a criminal offense, and the infraction is made all the more common by the fact that the National Domain Law of 1964 does not recognize either customary rights to land or land rights acquired through transactions not formally registered with the appropriate government offices. In Ziguinchor, allocation of plots to individuals as compensation for land lost elsewhere meant that a significant number of residents were displaced and many chose to dispute the decisions of the Plot Allocations Board.

Few, however, resorted to the courts, and instead pressed their claims through a series of administrative commissions established to review the cases. In general, the commissions upheld the decisions of the Plot Allocations Board, reaffirming the rights of the allocatees over those of the occupants and the primacy of the 1964 Law. But most of those deprived of land and houses have not been reconciled to their loss and have continued to dispute the allocations. In 1983, a new review commission was appointed, and its decisions and proceedings indicate a greater willingness on the part of the government to acknowledge the continued adherence of much of the population to customary procedures and land rights. Unlike previous commissions, this one includes, in addition to officials, representatives of local residents; it also conducts its proceedings more in accordance with customary norms than did its predecessors, using local languages rather than French and holding open meetings. Al-though Hesseling acknowledges that it is still too soon to see what the impact of this new

commission will be, she notes that "as far as form is concerned some concessions have been made to traditional law."

Other studies have considered the application of the new land laws in the rural areas of Senegal. The following two articles focus on the Siné Saloum region:

S6 Faye, J., and Niang, M. An Experiment in Agrarian Re- structuration and Senegalese Rural Space Planning." Afri- can Environment E:4 (1977): 143-153.

and

S7 Stanley, Bob. 'Senegal Tackles Land Issues." International Development Research Reports 4:4 (December 1975): 10-11.

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Both articles describe field consolidation in the Siné Saloum region of Senegal whose objective was to facilitate the intensification of agriculture. Stanley's article is a brief, informal description of the consolidation process in the village of Thyssé-Kaymor, where 322 fields with and average size of 2.7 hectares were consolidated into 248 fields with an average size of 3.2 hect- ares, while Faye and Niang discuss a broader study of land tenure practices before and after consolidation that they carried out. In all, some E,500 hectares of land holdings (including Thyssé-Kaymor) were consolidated. In both studies the authors found that the farmers participated in consolidation as a way to secure their rights to land through the quasi-official demarcation and mapping process, rather than from a desire to become more economically efficient. Nevertheless, consolidation is starting to show some of the benefits planners had originally hoped for. According to Faye and Niang "we are beginning to perceive changes in the attitude of the peasants who, after two crop-years, are appreciating the new shapes and sizes of the plots which facilitate the use of

Law on particular irrigation projects and the ways in which the provisions of the law may work to the detriment of the success of the schemes.

S8 Diao, Mbaye. "Le projet de wise en valeur de la vallée de Baila en Basse-Casamance (Senegal)." In Enjeux Fonciers en

Afrique Noire, edited by E. Le Bris, E. Le Roy, and F. Leimdorfer, pp. 228-239. Paris: Karthala, 1982.

a survey of farmers in the area, he writes that most villages are not happy with the rural councils that have been established to supervise the land tenure system and to centralize control over land allocation. Many farmers in the area would like to see land restored to its "owners," and to limit tenants' access to land through the owners themselves. Diao also notes that holdings are highly

In order to provide for the management of water distribution and control over problems of salinization, necessary activities in the rice cultivation project during the interim period before the rural councils become fully func- tional, Diao suggests the appointment of a committee consisting of both cus- tomary land authorities (chefs de terre) and rural council members. Such a committee, by providing a forum for landholders to make known their views, would ensure an orderly transition to the new system of land tenure and at the same time enable the rice cultivation project to proceed effectively.

The largest and most expensive irrigation schemes are those along the Senegal River, and here, too, researchers have considered the potential impact of the national law.

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S9 Weigel, Jean-Yves. "Organisation fonciere et opération de developpement; le cas des Soninke du Sénegal." In Enjeux

Fonciers en Afrique Noire, edited by E. Le Bris, E. Le Roy, and F. Leimdorfer, pp. 315-323. Paris: Karthala, 1982.

Considering the effects of an irrigation project in the Bakel area of Senegal on the customary land tenure system of the Soninké, Weigel concludes that the project's system of land allocation, carried out in accordance with the 1964 Land Law, has permitted a more egalitarian distribution of land. Whereas the customary system was an extremely hierarchical one, in which land-less individuals of lesser status (including descendants of captives and artisans) derived land rights only through relations of dependence with members of the noble caste, the new legislation has permitted allocation of land irrespective of social status. As a result, although nobles continue to exercise control over recession-agriculture land, lesser groups predominate among those allocated irrigated land. This in turn has permitted them to escape the control of the nobles and led to the diminution of the tatter's authority. Weigel points out, however, that the irrigation scheme is new, and that any analysis of its effects can be only provisional.

S10 Seck, Sidy M. 'Aspects fonciers et organisationnels dans le développement de la culture irriguée." Saint Louis: Organisation pour la Mise en Valeur du Fleuve Senégal, March 1985.

Seck focuses on land tenure and organizational factors in the development of irrigation projects on both sides of the Senegal River, in both Senegal and Mauritania. Although the two countries have national land tenure laws quite different in their emphasis, Senegal's with its emphasis on use rights and Mauritania's with its provisions for individualization and privatization of title, similar land tenure concerns and problems have emerged in the implemen- tation of irrigation projects. On both sides of the river the potential for social and political change resulting from projects is very great; introduction of more egalitarian access to land will alter the hierarchical structure of local society--a result that few would find objectionable. At the same time, however, the organizations established to manage the projects have sometimes found their efforts blocked by local groups and authorities who are reluctant to permit their land to be used for expansion of projects or who refuse to conform to the mandated development conditions. Projects also suffer from a lack of clear definition of participants' rights; in many instances disposal rights and conditions for forfeiture of allocations have not been spelled out. Seck also sees the need for more cooperation between the governments of Senegal and Mauritania to ensure, among other things careful harmonization of land tenure policies in the irrigation schemes.