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

185 SEYCHELLES

The Seychelles have been both a French and a British colony, and this dual heritage has left its imprint on land law and registration. Until the passage of new land legislation in 1964 and 1965, land law was based on the French Civil Code.. A Deeds Registry had been es- tablished as early as 1790, but the records were scattered--early records were kept in Mauritius and only after 1903 were deeds recorded and the registry maintained in the Seychelles. The 1965 Land Registration Ordinance provided for the registration of title on a

the late 1970s, a project for the systematic and compulsory registration of title on Mahé was begun and is apparently still continuing.

Prior to the enactment of the 1965 legislation, two separate studies were made of the survey and deeds registration system and recommendations for its restructuring submitted. They are:

SY1 Mitchell, A.P. "Seychelles: A Report on Survey and Land Registration.' Unpublished report submitted to the Gov- ernor of the Island of Mahé, Seychelles, 1959. Mimeographed.

Although in the Seychelles much land was originally divided into strips using metes and bounds, the markers used were impermanent and of little use today in surveying for registration and titling. Land was originally divided into long, narrow strips from the coastal plain into the mountains. Subsequent divisions often maintained this pattern to assure each new holder a portion of the coastal plain, making resurvey efforts expensive and disputes frequent.

Mitchell calls the Deeds Registry a costly waste that does nothing to facilitate settling land disputes. However, he feels that the implementation of systematic adjudication and titling would not justify the costs involved unless the larger estates were partitioned. The author nevertheless makes suggestions for rearranging the current organizational structure.

The second study also provides additional background on previous surveys:

SYE McEwen, A.C. 'Land Survey and Land Registration in Sey- chelles.' New York: United Nations, Department of Eco- nomics and Social Affairs, 1961.

Written from his perspective as a surveyor, McEwen sees part of

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the problem as a lack of trained surveyors and regulations governing survey standards.

The author cites problems with deeds registration and states his opposition to piecemeal, voluntary registration of titles. He further suggests that arbitration would be a viable method of determining ownership in boundary disputes arising out of any adjudication and titling program.

A third report on the land registration system in the Seychelles was written by Lawrance in 1979, after title registration in Mahé had begun and in response to the govgrnment's interest in implementing systematic adjudication and registration of land on the island.

SY3 Lawrance, J.C.D. 'Note on a Visit to the Republic of Seychelles.' London: Overseas Development Administration, 1979. Mimeographed.

Lawrance notes that progress in registering land since 1965 has been slow and sporadic. Out of a total estimated 8,541 parcels on the whole of Mahé, only 3,940 had been surveyed and even fewer (660) registered by 1978; (7,800 parcels are estimated to be less than 1 acre in size). Lawrance also mentions that the government now favors systematic registration of land and he endorses this plan of action, citing benefits of titling for both individuals and government. For individuals, he sees reduced conveyancing costs, reduced litigation, and increased access to development credit. For government, the author envisions more reliable land statistics to aid land use planning or reform, more efficient control of land transactions, facilitation of government land acquisition, and registry fees that will finance the registration department. A substantial part of the report is devoted to estimates of the steps, costs, equipment, and staff a program of systematic land registration will require.

A summary of land surveying and registration procedures in Sey- chelles over the years is provided in:

SY4 Dale, P.F. Cadastral Surveys within the Commonwealth. Overseas Research Publication, no. 23, pp. 262-263. London: Her Majesty's Stationery Office, 1976.

Dale describes the surveying policy currently being applied in the Sey- chelles and adds the criticism that this policy is strong on technical details and completely divorced from human and land matters.

Of minor interest is a description of a survey/mapping project carried out on the island of Mahé beginning in 1980:

SY5 Opie-Smith' P. "The Organisation of Map Revision in a Small Country." Paper presented at the 1983 Conference of Commonwealth Surveyors, Paper No. D1. Mimeographed.

This document includes a map showing the areas already mapped.

187 SIERRA LEONE

A dual system of land tenure has existed in Sierra Leone since the middle of the nineteenth century. In Freetown and the surrounding Western Area, land can be registered as freehold and recorded as such in a deeds registry. No figures are available as to how much land this represents, but even if the entire Western Area were free-hold, this would amount to only about 250 mi2, or less than 1 per-cent of the area of the entire country. In the Provinces areas (the rest of the country), however, customary tenure systems have continued in force, with officials reluctant to extend freehold registration to this area lest local people lose their land rights altogether. Although most rural land transactions in Sierra Leone thus continue to occur under customary tenures and are not registered, there has been increasing discussion about the advisability of implementing a more "westernized" system of land management, including registration.

The best summary of land registration, earlier studies of the systems, and recommendations for change is provided by L.C. Green, in the appendix to:

SL1 Harrell-Bond, Barbara, and Ulrica Rijnsdorp. "Family Law in Sierra Leone; A Research Report." Appendix A, "Land Law in Sierra Leone," by L.C. Green, pp. 118-136. Lei- den: Afrika-Studiecentrum, 1975.

Green discusses the application of freehold tenure and establishment of a deeds register in the Western Area, but notes that despite their existence, there remains unregistered land in this region today. There have been several recommendations and attempts to extend freehold title to the Provinces Area of Sierra Leone, but they have been resisted by customary chiefs and local popu- lations, who fear the loss of both power and land to the economically superior Creole population concentrated in the Western Area. Green himself favors some sort of registration of rights, whether freehold or customary, and suggests that the deed registry be replaced by a title registry. His belief is that customary systems do not provide adequate security of tenure and cannot change rapidly enough to meet changing conditions. He asserts that changing circumstances, including the spread of cash cropping, the development of land markets, greater complexity in land rights, the need to control the distribution of interests in land, increasing numbers of land disputes, and the expansion of agricultural credit, make the introduction of land registration (in the name of either the individual or the family) necessary.

In the main report itself, Harrell-Bond and Rijnsdorp support Green's recommendations, but caution that that stranger farmers may be victimized by the registration process as the original family reasserts its rights to land lent long ago. They suggest that a specified period of residence be set as

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the criterion for permanent rights over land. Otherwise, they warn, "under the present situation, land registration could only contribute to the existing confusion" (p. 65).

An earlier study of the customary land tenure system and its effects on agricultural production came to the opposite conclusion and recommended that registration of individual freehold not be instituted in the Provinces area of the country:

SL2 Barrows, Richard Lee. "Land Tenure and Agricultural De- velopment in Sierra Leone." M.A. thesis, University of Wisconsin-Madison, 1970. Published as "African Land Reform Policies: The Case of Sierra Leone," Land Economics 50 (1974): 402-410.

Barrows argues against the conversion of customary tenure to "legal, in- dividualized" tenure, asserting that the possible effects on the agricultural system have not been carefully studied, that the result is likely to be a few laxge farmers and many landless peasants, and that it will not prove a "significant aid to development" (p. 92). He points out that in the Western Area, where there is registered freehold land, there is also a substantial amount of landlessness. Rather, Barrows suggests that production can be raised with new inputs and that the question of credit and investment be solved in other ways such as through a program of government subsidies to farmers.

Attitudes toward registration are the subject of the following study:

SL3 Turay, Harry. "Land Tenure Systems in Sierra Leone: Per- ceptions of Land Owners of Problems Related to Land Tenure and Action Policies Toward Development; A Project Report." N.p.: Njala University College, 1980.

In a random survey of 4,503 households throughout Sierra Leone, Turay questioned subjects about their attitudes with regard to land registration. Respondents said that they favored registration for several reasons: to help prove ownership, to prevent quarrels over land, and to improve the possibility

in the name of the individual was overwhelmingly disapproved of by 87 percent of

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Generalizing from data on land acquisition collected for the 1970/71 Agricultural Statistical Survey, Kamara suggests that several steps be taken to regulate transactions in the future.

SL4 Kamara, James N. 'Marketing Transactions of Agricultural Land in Sierra Leone.' Paper presented at the Land Tenure Systems in Sierra Leone Conference, 8-9 February 1980. N.p.: Njala University College.

The Agricultural Statistical Survey data showed that only .42 percent of the total agricultural land in Sierra. Leone had been acquired by purchase. (Interestingly, in the Western Area, where most land is registered and the land market more active, 3.17 percent of the land had been purchased.) Kamara argues, however, that market transactions are likely to be increasingly impor- tant in the future and that individual ownership will become more prevalent. He also believes that customary land tenure practices, which forbid the sale of communally or family-held land, interfere with the operations of the land market. He therefore recommends that that a coherent national policy regarding land use and transactions be established and that as a first step, a careful study of land alienation be carried out. He also suggests that land use plans be established for each province. Kamara does not discuss land registration at any point in the paper.

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SOMALIA

There is little literature on land administration, land tenure systems, or processes of land registration in Somalia. This information is sensitive because the realities of land administration "do not necessarily conform to law, policy, or political ideology, and because

. . . [these] political processes involve the interests of influential individuals and powerful interest groups" (Hoben, S0l, p. 2)

It has been estimated that no more than 10 percent of the land under cultivation has been registered and that this 10 percent presents problems because government records are unreliable and diffi- cult to interpret. The Land Law of 1975 declares land in Somalia the property of the State, but permits registration of long-term leases. The first articles reviewed here deal largely with land issues raised by the 1975 Law.

A broad, anthropological review of land tenure issues is pre- sented by Allan Hoben:

SO1 Hoben, Allan. "Resource Tenure Issues in Somalia." Paper prepared for USAID/Somalia, January 1985. Boston: Boston University, African Studies Center.

Hoben writes that information about land tenure systems and processes of land registration is scarce. The realities of land administration are not necessarily in line with legal dictates, but rather are dominated by the interests of influential individuals and powerful interest groups. He notes that there has not been a cadastral survey or comprehensive land-use plan drawn up for Somalia. Hoben's estimate is that no more than 10 percent of the land under cultivation has been registered. These government records are unreliable and difficult to interpret.

Hoben's paper covers a variety of topics, including an overview of Soma- lia's indigenous tenure systems and Somalia's experience with refugee settle- ments. The most relevant parts of the paper cover the legal and political instruments that have been used to alter the indigenous system (Section two) and the Land Reform Law of 1975 (Section three). The author notes that successive governments, colonial and Somali, have attempted to substitute central authority for the decentralized authority of the "traditional" clan system. These governments have sought to reduce the influence of the clans in conflict resolution and political control. Consequently, national law gives virtually no recognition to customary rights or to the institutions that have enforced them. He writes that at many points, custom and law contradict one another.

In a discussion of legislation (pp. 31-39), Hoben reviews the land laws of

customary rules and procedures. These older rules and procedures, however,

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still influence access to, and disputes over, land. Further, not only does the law provide insufficient attention to the problem of registration, it also creates conflict between the State and the clans. Although the State desires to reduce clan influence, the law relies on clans at the local level to enforce policy. Consequently, the process of registration has generated conflict over the allocation of land.

As regards registration procedures (pp. 35-39), Hoben states that there are no land maps and thus no way of knowing how much of the arable or culti- vated land in a district has been leased. Additionally, agricultural coordi- nators are poorly trained and underpaid. The registration process itself also presents problems. The policy objective of preventing concentration of land in private hands appears to be easily circumvented: the Ministry of Agriculture is not equipped to prevent people from registering more than one block of land in different names or through other corporate or cooperative entities. Hoben writes:

The indeterminacy of land records presents difficulties for land use planning and generates conflicts which inhibit project implementation and rural development. In the absence of a cadastral survey and adequate assessment of land potential, government officials have no way of knowing how much land has been registered or what portion of the cultivated or arable land it represents. Nor has it proven pos- sible to avoid overlapping and duplicate claims to land [p. 39].

[Note: A revision has been published as "The Political Economy of Land Tenure in Somalia," in Land and Society in Contemporar9 Africa, edited by R.E. Downs and S.P. Reyna (Hanover, NH: University Press of New England, 1988), pp. 192-220.]

Recent Somali land legislation, including the 1975 Land Law, has been translated into English:

S02 Beileh, Abdirahman, trans. 'Somali Legislation Relating to Land.' Paper prepared for the Land Tenure Center, February 1985. Madison: University of Wisconsin.

The four land laws translated from Somali to English are: (1) Law 73 of 21 October 1975 (Agricultural Land Law), (2) Decree of 16 October 1976 (Law 23 on Agriculture), (3) Law 41 of 13 September 1973 (Urban Land Distribution), and

(4) Decree 31 of 31 December 1973 (Nomination of Chairpersons of Regions and Districts).

The first law, noting that the Somali constitution provided that all land is owned by the government and managed by the Secretary of Agriculture, stipu- lates that all land must be registered. It states that all parties, whether private or public, must possess land-use permits. Duration of the permit and maximum size of holdings allowaole are covered in Articles 7 and 8, respec- tively. Other issues covered by the law include: nationalization of excess land (Art. 9), restrictions on the use of land (Art. 12), rights and responsibility of the farmer (Art. 13 and 14), and most importantly, registration procedures (Art. 19 and 20).

The second piece of legislation, Law 23 on Agriculture, briefly deals with the procedures for acquisition of land by special agencies (defined as an

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agency in which the government is part owner). It also covers the circumstances that result in repossession of land. Land that is not used for agriculture or livestock for a period of two years, for example, can be repossessed and reallocated. The law discusses issues of compensation for repossessed land as well as taxation of allocated land.

The third law, Urban Land Distribution, addresses issues of urban land tenure. Articles 27 and 28 cover registration, but unfortunately, like many of the provisions in the other laws, the articles are extremely brief and not easily interpreted--i.e., Article 27 states that all land must be registered and that this is the responsibility of the Administrative Department and its district and regional representatives and Article 28 states that the land reg- ister is open for public examination during office hours and that it is only open to those who pay the land taxes.

The fourth law, Nomination of Chairpersons, has no direct bearing on reg- istration issues in Somalia.

A paper by Marco Guadagni reviews the origins of land law in Somalia in the brief period from 1892 to 1912.

S03 Guadagni, Marco M.G. "Colonial Origins of the Public

Domain in Southern Somalia (1892-1912)." Journal of African Law 22 (1978) : 1-29.

Although the paper does not directly discuss registration issues or provide specific examples of the registration process in Somalia, it does provide an excellent overview of the early development of land law in Somalia and its relationship to European, and specifically Italian, law.

Recently the Land Tenure Center carried out a study for USAID in Shalambood on the lower Shebelli in Somalia to evaluate land and water resource issues in an 8,500 hectare area that has been proposed for agricultural rehabilitation. Results of the research are presented in:

SO4 Roth, Michael et al. An Analysis of Land Tenure and Water

Allocation Issues in the Shalambood Irrigation Zone, Somalia. Paper prepared for USAID/Somalia, March 1987. Madison: Land Tenure Center, University of Wisconsin.

The goals of the study were to (1) evaluate security of tenure, the system of land registration, and mechanisms for dispute resolution in the project area;

(2) analyze the demographic composition of households with respect to economic size of land holdings and the willingness and ability of farmers to take advantage of the opportunities offered by the scheme; (3) provide infor-

mation on the current system of water distribution; and (4) analyze problems related to livestock damage to canals and irrigation infrastructure. Most relevant from the perspective of land registration are the second and third sections of the paper, which discuss land tenure structure and organization, and security of tenure and land registration, respectively. The second section contains a review of the legal framework for land tenure (including the Agricultural Land Law of 1975), geographical characteristics of the region, and large farm and smallholder characteristics.

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The third section of the paper analyzes data collected in a survey of 56 smallholder farmers in the Shalambood Irrigation Zone and from interviews of government officials and local authorities in the area. Their findings suggest that registration of land does not necessarily guarantee either security of tenure or credit for the landholder--although farmers' perceptions are that registration can protect them against land-grabbing by outsiders. The incidence of outsiders actually taking land in the area is quite low--in the one case in the area that the researchers were told of, local authorities ruled against the outsider--but farmers believe the threat to be a real one. More frequent are disputes over use rights, which may arise when a renter refuses to relinquish land acquired on a temporary basis, and it is usually unregistered land that is at issue.

Farmers believe that registration will give them security, but in practice most smallholders have not registered their land. Roth et al. estimate that only 5 percent of smallholder farms are registered whereas all of the large private farms have been. In 1986, 350 instances of registration in the project area were noted in the local Land and Water Office in Genale, almost all of which involved larger areas of land. In the survey area, registered farms averaged 5.5 hectares in size, and non-registered holdings only 1.6 hectares; women were especially unlikely to register their holdings. When asked why they had not registered their land, farmers cited problems of nigh costs, complicated procedures, and long delays. (The procedure should take only several

and a lack of information on the part of farmers. It is probably true that farmers are not always well-informed about the process, but it is also clear true that registration is expensive and time-consuming. Particularly costly is the need for the landholder to pay for having a map of his holding made. It may also be necessary for the applicant to make one or more trips to Mogadishu to move the papers along to the Ministry of Agriculture, where final approval is given. Another factor that may discourage registration is the provision of the 1975 Land Law that limits registered title to one per house-hold. One-third of the households in the survey area, the researchers found, had multiple parcels, and were the provisions of the law to be strictly en-forced, they could not be registered.

Among the claims made for the benefits of registration is that landholders are likely to use their land more productively, investing in inputs and having access to credit to make more costly, long-term improvements. Roth et al. could not test this, however, because of several important complicating factors. Because registered land in Shalambood also had the best access to irrigation, it could not be compared with unregistered land. Moreover, access to credit was more often a function of farm size than of registration status. Land is seldom used to secure a loan. The attractiveness of registered land as collateral is limited by the fact that under the 1975 Land Law, land cannot be sold, rented, sublet, or otherwise transferred. Instead, other assets such as bank accounts, cattle, or buildings are put up as collateral. Small farmers who lack capital or other mortgageable assets use group guarantees or risk-snaring through a cooperative to secure credit. Another complicating factor in attempting to measure the value of registration, Roth et al. found, was that the farmers with the best production and marketing arrangements were those on cooperativeaffiliated farms who lacked the individual title which registration advocates proclaim necessary.