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

security of tenure brought by registration, the reasoning goes, landowners will be more willing to make investments in the land, investments whose benefit they can be sure of reaping. Moreover, possession of a title will permit a farmer to turn to institutional lenders such as banks for loans that will be used for more expensive investments and innovations and result in increased agricultural production (A2, A8, A10, EA1, K10).

Another deficiency commonly attributed to customary land tenure systems is that specific kinds of transactions, most notably land sales, are often forbidden, and that as a result there is no land market. Here too the charge underrepresents the flexibility of the customary system, but once again registration is seen to be the remedy. With registration, it is argued, land can be freely exchanged by owners who no longer are constrained by customary rules and authorities (A2, A3, Al2, EA1, EA3). With the establishment of a market in land, with economics rather than kinship or ethnicity the guiding principle of access to land, it will ultimately be possible to concentrate holdings in the hands of the most efficient and innovative producers. Some, in fact, have seen this as more of a disadvantage than an advantage, fearing that creation of a land market will lead to displacement of poorer farmers and a rising incidence of landlessness (A14, EA2, U26).

Registration of land has often accompanied the initiation of certain kinds of special, often large-scale agricultural projects. Settlement and irrigation schemes, for example, may require resources and supervision that are beyond the capacity of local authorities-- indeed, the beneficiaries may not be indigenous people at all. It is often rights of occupation or leaseholds that are registered in these circumstances rather than the less circumscribed freehold. Landholders are frequently subject to restrictions on transferability and regulations governing land use in these situations, and the registration may serve more for administrative purposes (for example, enforcement of regulations) than for increasing economic initiative. A similar desire to monitor land use and development has often lain behind registration of leasehold titles, a form of title that a number of countries have made increasing use of since independence, as well as rights of occupation. Although leaseholds do not of them-selves

in Africa is significant. The interest in regulating development

can be seen to have several purposes: to avoid permanently alienating large tracts of land (as often happened under colonial rule), to compel individuals to put their holdings to productive use, and to direct development in ways consistent with national objectives. Conditions that demand development of land are also intended to dampen land speculation, which has become increasingly evident in many African countries.

Registration programs, then, have been instituted to accomplish a wide variety of goals, from correcting conditions detrimental to

agricultural production to permitting greater opportunity for development, from increasing individual initiative to limiting it. What have been the results, both foreseen and unforeseen, of registration projects? What do the studies summarized in this literature review show? The quick answer is that results of registration projects have been disappointing, that in general they have either not achieved what had been predicted or achieved it to a lesser degree than expected or, in some cases, have had undesirable consequences.

Land Markets and Security of Tenure. Failure to fulfill expectations is in part due to erroneous assumptions about the workings of the customary land tenure system and the benefits of registration. The greater security of tenure that registration of title is thought to convey is to some extent a reaction to the notion that customary systems lack security, something that--at least as a generalization-- has been increasingly called into question. Similarly, it has been shown that in many customary tenure systems, well-developed local markets in land rights already exist. Perhaps most disappointing are the expectations concerning credit. Registration has not proven to be the catalyst for securing credit for smallholders (A5, K35, K41, MW8, SO4, U23). Large holders remain relatively well positioned for access to credit, and their preferred status is often the product of other conditions beyond possession of a registered title, such as reliable income streams. It has become increasingly apparent that registration alone is not enough to induce banks and other such institutions to lend to smallholders; it is often necessary to establish other programs, including ones to provide short-term credit exclusively for smallholders, which most often make no use of col-lateral in land.

Land Disputes. With regard to land disputes, predictions have to some degree been fulfilled. In many areas their numbers have decreased as a result of registration, but this may be only a temporary phenomenon. There is some evidence from Kenya that the incidence of disputes may rise again as it becomes apparent that registration cannot satisfy conflicting expectations it has raised (K24, K26, K28, K33). And in at least one region (in Nyanza Province in Kenya), registration has also changed the nature of the disputes themselves. One author (K33) has noted that whereas before registration disputes were most often over boundaries, now ownership itself is at issue. A change of this kind is significant because these are often more intractable disputes than ones over boundaries and frequently are the product of two systems of land tenure and land rights coming squarely into confrontation with each other.

Fragmentation. Registration has also failed to eliminate problems of recurring fragmentation of holdings. Although consolidation radically reduced the number of separate fields a farmer was likely to have, the effect was only temporary. Research among the Embu in Kenya (K25) has found that no sooner had the program come to a conclusion than fragmentation was once again taking place despite legal restrictions against it, the reason being that the social and

enthusiastic proponent of land registration. Although he would be the first to acknowledge that it should not be undertaken everywhere and in every situation, he argues that there are certain conditions under which land registration is an appropriate undertaking, and his arguments are worth repeating.

Writing about the registration projects in Kenya, Lawrance enumerates four criteria which, he believes, should serve to indicate whether or not registration ought to be undertaken. First, are there improvements in agricultural production to be gained as a result of registration? Lawrance notes that registration by itself is not sufficient to bring about an increase in production but must be accompanied by programs of agricultural extension and credit. Second, is there evidence of a genuine demand for registration among the people whose land will be affected? Without their cooperation, a registration program can easily become excessively expensive. Third, will greater security of tenure result? Lawrance acknowledges that for some, individuals who cannot establish their rights to land at the time of adjudication, registration will result in landlessness and strongly recommends that alternative accommodations be made available to these people. Otherwise, the social problems which are created outweigh any advantages to be derived from con-

solidation and registration. And finally, what are the costs of carrying out a program of registration? Land registration is inevitably an expensive process, but careful planning and management of staff and equipment can keep costs down.

What Lawrance is recommending, then, is that registration be undertaken selectively. That is, that the best approach is a grad- ualist one, in which selected districts are registered as conditions become favorable. That is not to say, however, that it should be done on a voluntary basis. Lawrance favors systematic registration, with most of the costs of registration borne by the government rather than the individual. Because the benefits of registration are usually not immediately apparent to the landowner, he suggests that fees not be collected from titleholders until such time as possession of a title brings some advantage to the landowner. At the time the land is sold, for example, fees for registration of the transaction should be collected.

The benefits of registration that Lawrance enumerates are those discussed earlier in this introduction: access to credit, security of tenure, reduced litigation, development of land markets, and cashcropping. In the case of the Central Province area of Kenya, where registration was begun in the 1950s, local conditions made registration all the more timely. The customary system of land tenure among the Kikuyu had begun to break down and assertion of individual rights to ownership of land was becoming more common. A further complication was the high incidence of fragmentation of holdings, requiring that a program of consolidation accompany registration.

Lawrance is far too experienced an observer to depict registration as an instantaneous cure for ills of customary land tenure systems. While he clearly believes that the benefits of land registration outweigh any disadvantages, he acknowledges that registration does away with the automatic access to land provided under most

customary systems. In addition, he insists that registration in and of itself is not adequate and that if agricultural production is to be increased, programs of agricultural extension and credit must also be established.

A number of writers have criticized individual programs of land registration, questioning either their goals or the extent to which they have actually achieved what was planned, and their studies add up to an extensive body of literature disputing the efficacy of registration. Few, though, have taken as broad a perspective as H.W.O. Okoth-Ogendo, professor and former dean of law at the University of Nairobi, who must be considered the leading critic of land registration. Okoth-Ogendo agrees that land reform may convey certain advantages, admitting that initially it may have a positive impact on agricultural planning, but any benefit in terms of agricultural production, he believes, is outweighed by distinct disadvantages: the redistribution of political power, the emergence of economic disparities, and a disequilibrium of socio-cultural institutions. In addition, failure to establish follow-up programs of extension and credit, a not uncommon occurrence, has meant that projected in-creases in agricultural production often do not materialize. Even when credit is available to smallholders, he points out, there is no guarantee that loans will be invested in agriculture--in practice, many choose to use the money for nonagricultural, off-farm enter-pr ises.

Formal legal structures, he argues, have little impact on a farmer's decision-making processes, and thus the changes introduced by land registration do little to alter perceptions about land rights and values. Rather, the social, economic, and political functions of customary tenure arrangements continue to influence production decisions. Moreover, as the example of Kenya shows, supervisory bodies such as local land boards often continue to settle land disputes according to older norms of social justice rather than in response to the demands of economic efficiency, a fact which inhibits the growth of a land market and at the same time creates conflicts between local authorities and national institutions.

This is not to argue, however, that registration changes nothing. Okoth-Ogendo contends that the new system goes beyond merely perpetu- ating inequalities between the large and small farm sectors of the economy by also creating new forms of stratification and status differentials within the latter. Individualization of title provides the landowner with certain exclusive powers over the land that may be exercised at the expense of those whose use and cultivation rights are ignored by registration--women and children, for example. The new patterns of land distribution also support the rise of a new, rural landowning class which exercises increased political influence gained at the expense of traditional authorities. Registration of individual title, which introduces legal and political changes, thus accelerates the destruction of customary structures and authority already begun in the colonial era. In summary, Okoth-Ogendo's opposition to land registration centers on its failure in practice to achieve the desired objectives of increased agricultural production

while at the same time producing unforeseen and undesirable social and political consequences.

Lawrance and Okoth-Ogendo represent the two opposing schools of thought about registration of land, the one advocating it for its positive effects on agricultural development, the other rejecting it for the distortions it introduces in rural society. Between them lie a large number of authors who have carried out specific studies which have looked at registration projects in the different countries in Africa, described them, and analyzed their impact. As this introduction has attempted to show, the kinds of situations in which reg- istration has been undertaken have varied widely, and the expecta- tions have also differed. Nevertheless, as can be seen in literature review which follows, there are important similarities that emerge.

These differences can be seen in the sections for individual countries that form the core of this literature review. There is a great deal more literature on registration in Anglophone countries. Not only has land registration been more extensive in these coun- tries, but it has also been more widely studied and reported on. A quick survey of the summary paragraphs at the beginning of each country's section reveals this, as does the length of each section. These introductory summaries are also useful guides to the various kinds of land registration that have taken place in individual coun- tries, the dates of the programs, and (where available) the amount of land that has been registered.

Within each individual section; the discussion of the literature is organized in such a way as to provide a logical progression from general surveys and overviews of programs and policies within a given country, to material discussing the earliest registration programs, to studies of the latest. We felt that such an organization would present a coherent picture of changes in attitudes and objectives better than a strictly alphabetical ordering. Our objective has been a literature synthesis rather than a set of annotations. Author and subject indexes at the end of the volume are intended to provide the reader with access to works by specific authors and with similar themes and to draw together material from different countries.