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

AFRICA: GENERAL CITATIONS

The bulk of general material on Africa is conceptual in nature, most often a discussion of the disadvantages and advantages of title registration. Due to the varied nature of this conceptual material, this general section is arranged alphabetically, except where topical connections can be made. Articles dedicated to economic analysis and technical aspects of registration can be found near the end of this general section.

The following is a discussion of the history of the Torrens system:

Al Arter, F.W. "A Review of the Torrens System and Some Aspects of Title Survey." Australian Surveyor (June 1960): 108-118.

Arter begins by explaining the significance of a title and continues by relating the experience of implementation of title registration in Australia and the problems encountered. The author explores the concept of "limited title," whereby the government accepts claims to land pending further evidence, but allows transactions only with title. Arter concludes with his views on the technical needs of boundary survey.

Starting with a list of benefits derived from cadastral survey and titling,

A2 Austin, Jan. "Developing Cadastral Systems." Urban Edge

[World Bank], vol. 9, no. 6 (1985), pp. 1-6.

includes among them better tax assessment, increased efficiency of land markets, increased ease of assembling land for development programs, more incentive to improve housing, and better access to credit. Austin suggests that designing land information systems requires identifying specific needs of an area, real goals that avoid costly implementation mistakes, and simple procedures understandable by those required to register land. She further states that compulsory registration is necessary, as is recognition of existing tenures and customary transfer rights, and suggests the utilization of pilot projects.

To avoid common pitfalls encountered in the implementation process, Austin recommends that costs of surveying be tied to land value (that is, not exceed a certain small percentage), while appropriate relative accuracy be emphasized by tying parcels to their immediate surroundings rather than to remote points.

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Baron, in:

A3 Baron, Don. Land Reform in sub-Saharan Africa: An Annotated

Bibliography. Washington, DC: USAID, 1979.

sees consolidation and registration as a solution to uncertainty and fragmentation in current landholding systems. Citing excessive transaction costs due to group rights and judicial reliance on biased oral evidence as impediments to investment, Baron writes that registration will furnish "secure and enforceable rights to all who own interests in land, and ensure that all conveyances of land can be accomplished quickly, efficiently, and at low cost." It does so by encouraging successful farmers to expand their operations by acquiring additional land. However, the author concedes the need to guard against the creation of a land monopoly in the hands of a few.

The bibliography is a list of articles which address this subject, many of which are included elsewhere in this literature review.

Another author attempts to summarize the various explanations of what customary land tenure systems are and wny they inhibit agricultural development.

A4 Baron, Don. "A Survey of Land Reform Problems in sub-

Saharan Africa." Washington, DC: U.S. Department of Agriculture [?], 1977.

This paper discusses the various features of customary land tenure systems, especially in their relation to bush-fallow cultivation. Impediments to agricultural development include the restrictions on alienation, which have negative ramifications on the securing of loans and investment. At the same time, however, the author does not believe that those who have asserted that "stranger" farmers lack tenure security have proven their case. Lastly, an absence of clearly defined property rights and laws leads to inefficient land allocation and reduced value of any investment made in the land. Exacerbating this problem is the lack of written records and the "excessive" discretionary powers accorded administrators and courts in land matters.

Baron disagrees with the assessment that costs of registration of individual land rights often exceed the benefits of increased investment, increases inequality of land distribution, and eliminates peasants' rights to at least a subsistence living. Instead, he sees registration as a way of reducing costs and litigation, while increasing efficiency. Baron asserts that the primary fault of customary tenure is that it separates ownership (group) from control (individual/family) of the land.

In contrast to Baron is the following:

A5 Gershenberg, Irving. "Customary Land Tenure as a Constraint on Agricultural Development: A Re-Evaluation." East African Journal of Rural Development, vol. 4, no. 1 (1971), pp. 51-62.

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Gershenberg states that the emphasis on customary tenure as an impediment to agricultural development is misguided and counterproductive for African social, political, and economic well-being. He begins his analysis of the pros and cons of individual title with the question of security, arguing that customary tenure does provide security, including inheritance rights. In discussing credit, he claims that there has been an underestimation of Africans' disposition to save and invest, pointing to Kenya's development of smallholder coffee-growing. Further, according to the author, banks are reluctant to accept land as loan collateral because it does not easily convert to cash. Instead, other sourcess of credit could be used, such as cooperative lending institutions.

Concerning the problem of fragmentation, Gershenberg presents several points. First, fragmentation most often results from ecological considerations and patterns of inheritance. Secondly, the operation of larger farms requires more than just a larger area made available through titling and subsequent sales. Lastly, the author believes that titling is not necessary to remedy fragmentation as long as there exist means of transferring or leasing land.

Gershenberg concludes that: (1) changing land tenure is insufficient to promote agricultural development, in as much as there is further need for agricultural research, greater effective demand, alternative employment opportunities, and improved domestic terms of trade; (2) lack of administrative capability augurs against a radical move away from customary tenure concepts; and (3) it is therefore most promising to rely on customary land tenure as much as possible.

The following article deals specifically with land records them- selves :

A6 Barr, MacDonald. "Comparison Among Land Records of the European Colonies and Other, Improved Systems Used in Developing Countries." Report prepared for the Water and Urban Development Department of the World Bank. Washington, DC, 1985.

Among the functions of land records Barr lists the determination of current rights, improving tax collection, regulation of land development and use, management of public services, and protection of customary rights. He also describes the contributions of Spanish-, English-, and French-speaking colonizers to developing country land systems, including a useful, succinct summary table of the level of registration/titling each group brought to its colonies. This is accompanied by a brief summary of developing countries which purport to use some form of titling or registration.

Binns also considers the role of lana records:

A7 Binns, Bernard O. Cadastral Surveys and Records of Rights in Land. FAO Agricultural Studies, no. 18. Rome: Food and Agriculture Organization, 1953.

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The first sections describe the history of mapping and cadastral systems, and the use of air photos. Binns states that a register of rights need not be based on individual ownership, and that such a variation could therefore reduce opposition to registration. In his discussion on adjudication, he suggests that initial efforts be aimed at registering occupation under a "presumptive title" for either individuals or groups. This would then be replaced by a more definitive title at a later time. Advantages of registration are seen to be its description of the exact disposition of land, protection for all classes of landholders, and facilitation of land transactions. Binns also stresses the necessity of preparation and maintenance of the record of rights.

The following article is devoted primarily to a discussion of the pros and cons of title registration:

A8 Henssen, J.L.G. "The Requirements and Significance of Land Registration and a Cadastre in Developing Countries." Apeldoorn, The Netherlands: International Office of Cadastre and Land Records, 1982.

Henssen lists security of tenure, better credit access, reduced litigation, and increased tax revenue as the primary advantages of registration. Freezing customary land tenure at one point in time, excessive government intervention, expense, and the lack of trained personnel are all listed as disadvantages. Henssen includes as a disadvantage fear by the wealthy that their holdings would be subject to public scrutiny with the advent of registration. The author also explains the difference between deeds and title registration as well as the legal basis necessary for titling.

Kitay is concerned with the difficulty faced by governments of many developing countries in acquiring land for public services:

A9 Kitay, Michael. "Land Financing by International Donor Agencies: Problems and Prospects." Paper presented at the Ninth EAROPH International Congress, Hong Kong, Au-gust 1984. Washington, DC, USAID.

The author talks about the potential role that aid and personnel donor agencies may play in the acquisition of land for public purposes. He sees only a limited role at present, but one tnat is likely to grow as the problem becomes increasingly acute.

In aadition to listing perceived advantages of registration, Larsson discusses the influence of registration on customary land tenure in:

A10 Larsson, Gerhard. "Land Registration as Part of a LandReform Program." Paper presented at the Seminar on Problems of Land Tenure in African Development, Leiden, 13-17 December 1971. Leiden, Afrika-Studiecentrum.

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The advantages include increased security, reduced litigation, cheaper transaction costs, increased credit access, expanded taxation, and better regulation and planning of land use. According to Larsson, registration does not change ownership, but only registers it (this can include group ownership). He further states that registration could accelerate trends toward individual ownership, while suppressing rights that are weak, without legal support, or unpleasant to the majority. Conceding that adjudication is heavily influenced by politics, the author nevertheless supports implementation of compulsory and systematic registration on the grounds that in the long-run the cost per unit is low and that simple methods of aerial surveying may be employed to overcome the obstacle of initial survey costs. '

Lawrance uses customary land tenure as a foil in his discussion:

All Lawrance, J.C.D. "Land Systems and Land Reform." Paper presented to the Seminar on Land Administration and the

Development of African Resources at Ibadan, 1972. Paper No. 5.1. Ibadan, U.N. Economic Commission for Africa.

Lawrance believes that most African land tenure problems stem from the continuing existence of customary land tenure systems, which has resulted in dual legal systems, fragmentation, and few written records for the majority of landholdings. Lawrance urges unifying land law via statutory regulation and suggests the need to have State or private interests take over unutilized land. He also calls for natural resource development tailored to farming needs.

A 1970 article discusses these same ideas:

Al2 . "The Role of Registration of Title in the Evolution of Customary Tenures and its Effect on Societies in Africa." Paper presented at the Seminar on Cadastre, Addis Ababa, 25 November-9 December 1970. Addis Ababa, U.N. Economic Commission for Africa.

The uncertainty of customary tenure is seen to be best addressed through the introduction of title registration, which would nevertheless have to be kept simple and easily understandable to succeed. The author further suggests that registration be used only when the economic advantages justify it. In addition, to be practical, such a system must also provide reasonable support for the

pros including the standard benefits of credit access, security, reduced litigation, development of land markets, and cash-cropping. Disadvantages include possible perpetuation of unsatisfactory ownership patterns, no automatic access to land, loss of community influence and lowered status of customary land law.

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Makings begins with a discussion of the problems of customary land law similarly covered by Lawrance and others, but then moves on to analyze the limitations of freehold.

A13 Makings, S.M. Agricultural Problems of Developing Countries in Africa. Lusaka: Oxford University Press, 1967.

Based on the assumption that the role of the state is to intervene in land tenure to promote conservation and the welfare of all sectors of a community, Makings first contrasts customary land tenure's right of access and freehold's exclusiveness. The security of subsistence users is also compared to the freehold security for market-oriented production. The author suggests that fragmentation could worsen under the early stages of freehold as farmers buy land wnen and where available. He proposes that leasehold might be a more effective way to promote agricultural development.

Makings lists three requirements of transitional tenure change: it must be suited to the requirements of those with interests in land, it should facilitate agricultural development, and it must be amenable to reasonable administrative control. He believes that this can be accomplished by promoting individual security for cropland while building on the communal interests in land for general agricultural development. This dual system of land tenure would be under local authorities with clearly defined powers. Functions of these local authorities would include: vested control over land in their area subject to customary control, registration of cropland and grazing rights and the maintenance of the register, participation in all transactions involving land rights, power to act for the benefit of the community in regard to the development of land not subject to crop user rights, and full participation in local land development and planning.

A very different perspective is presented in:

A14 Machyo, R. Chango. Land Ownership and Economic Progress.

London: Africana Study Group, 1963.

Machyo is opposed to individual ownership and titling, which he sees as a method for the continuation of metropolitan control over now-independent colonies. The author begins with a description of European concepts of land holding which is followed by a discussion of African land tenure systems. The arguments for title registration are given, but the author emphasizes the problems of sucn a system. He says that fragmented land holdings are often based on micro-environmental differences, while also stating that individualized land ownership will tend to increase fragmentation, not reduce it. In addition, Machyo believes that individual title will increase unemployment, the possible result of peasants' being dispossessed from their lands for indebtedness (debts they are able to contract as a result of using their registered land as col-lateral). Individual ownership is rejected by the author as a system that would destroy community integrity and introduce class distinctions.

Machyo suggests other options (small peasant farms, capitalist farms, state farms, and collective farms), as well as the criteria for choosing: economic efficiency, employment, social value, overall economic development,

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and living standards. He supports a combination of tenures which utilizes both communal and individual land ownership and farming.

The uncertainty "inherent" in customary tenures is explained in:

A15 Mifsud, F. Montanaro. "Some Legal Aspects of African Land Reform." Paper presented at the International Seminar on

Land Taxation, Land Tenure, Land Reform in Developing Countries, 17-21 October 1966. Hartford, CT, University of

Hartford.

Mifsud sees the uncertainty as a function of conflict between different community land tenure systems. There is also tension between codified and customary tenure. Taking a more conciliatory stance than other authors, Mifsud believes that groups could be incorporated and given title, although a limit on group size would need to be established to prevent impediments to aliena-

tion. Additionally, adjudication need not be total, but should be sufficiently systematic to avoid problems. As does Lawrance, the author suggests that registration be implemented only in areas where land has become part of an exchange economy. Finally, Mifsud discusses consolidation and the potential of taxation from "vacant" lands.

Reiterating his argument above in:

A16 Mifsud, Frank M. Customary Land Law in Africa. Rome: Food and Agriculture Organization, 1967.

Mifsud continues his discussion on adjudication of rights. Citing examples from various countries, he suggests that registration be performed by local residents on the spot, be written, and systematic (ideally). The author concludes that because the trend to "individualization" is a general one, legislation should recognize it while also leaving room for other solutions.

Another paper follows this same line of reasoning:

A17 Pohoryles, A., and A. Szaskin. "Land Tenure and Its Effect on Economic Growth." Paper no. 3. Jerusalem: Land Use Research Institute, Tel Aviv University, 1973.

Tne authors discuss how customary land tenure patterns are affected by commercial agriculture, drawing on examples from Ghana and the Ivory Coast. They then go on to explore the effects of agrarian reform on both private and public land ownership with particular reference to Ethiopia, Kenya, and Ghana.

While listing the pros and cons of customary land tenure and individual title, the authors also suggest that group ownership could reduce fragmentation. Private ownership may produce an absentee owner class, necessitate registration which is slow and expensive, and result in land left idle for speculation purposes. The authors conclude that the introduction of individual titling depends on: (1) a relatively dense population, (2) the existence

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of commercial cropping, (3) a higher rate of permanent land rights, and (4) the consent of the populace for land reform. The appendix is a useful typology of land ownership with clear and concise definitions of the different ways land is held.

Set in a much more general framework of land reform is the following:

A18 West, Henry W. "Conceptions_ of Land Reform." Cambridge

Course in Development. Cambridge: Department of Land Economy, University of Cambridge, 1974.

West breaks agricultural development into two basic orientations: technical improvements designed to increase productivity, and technical reform that incorporates structural/social reforms. West also differentiates between the various terms of land reform, agrarian reform, redistribution, and so on.

The author describes two schools of land reform: the radicalist and the gradualist. Radicalist action relies on confiscation, nationalization, and collectivization of production. Application varies widely, as evidenced by the examples of Israel, the USSR, China, and Tanzania. Gradualists, however, strive to maintain property rights, while making selective use of consolidation, cooperative promotion, land market regulation, and stringent rules of expropriation. West prefers the latter approach, citing its greater flexibility, and stating that such efforts "should invariably be accompanied by land registration."

West evaluates both the radicalist and gradualist approaches vis-a-vis employment opportunities, production, wealth and income distribution, rural/ urban equality, promotion of secondary industry, and the character of rural society.

In a second document, West presents his views on the relative merits of title registration:

A19 West, Henry W. "Land Registration and Land Records: Their Role in Development." Teaching Forum, Land and Water Economics and Policies, no. 1 (1972).

The collection of revenue and the confirmation of landholders' proprietary rights are listed as the primary purposes of registration. The benefits of registration are seen to be the same as those suggested by Lawrance and others. West then outlines possible survey techniques, with ground survey being very time-consuming, photogrammetrical methods dependent on expensive machinery and air-visible boundary features, but with orthophoto maps promising a cheaper and faster method.

The important considerations in registration programs are: (1) when and how registration should be introduced, (2) what the unit of record should be, (3) what data should be recorded, (4) whether boundaries should be fixed or general, and (5) whether or not there should be public access to registry information.

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Simpson also talks about the functions of registration in:

A20 Simpson, S.R. "Objects and Purposes of Land Registration." Paper presented at the Seminar on Cadastre, Addis Ababa, 25 November-9 December 1970. Addis Ababa, U.N. Economic Commission for Africa.

Simpson first discusses the nature of land ownership, with security of tenure possible "whether there is documentary evidence to prove it or not." He writes that registration only becomes desirable when social and economic pressures reduce the ability of another system to safeguard rights and it ceases to command respect within the community. Transition is made most difficult on the question of deciding who has what rights on a parcel of land. A brief comparison of deeds and title registration is also provided.

A more extensive work, written from a legal viewpoint, but with clear definitions in a layman's terms, is:

A21 . Land Law and Registration. Cambridge: Cambridge

University Press, 1976.

Although most chapters deal at least in part with issues of registration, certain chapters are of particular interest. Chapter 2 presents the overall framework of the special processes needed for dealing in land. Private conveyancing without recourse to any public documents, deeds registration, and title registration are compared. Chapters 3 and 4 show the historical evolution of registration in England and different forms of English conveyancing, while Chapter 5 provides a history of the Torrens system and its application outside Australia (in the U.S., Canada, France and its colonies). A comparison of the English and Torrens systems centers around: the form of the register, public access to the register, caveats, qualified titles, and sealing a deed of transfer. Simpson illustrates deeds registration in Chapter 6 through examples from the U.S., England, Scotland, and South Africa.

The role of title registration in regard to customary land tenures is discussed in Chapter 12. After describing and defining the concepts of customary land tenures, Simpson says that title registration may be necessary to replace customary tenure when socio-economic conditions change too quickly for these customary tenures to evolve. Espousing similar views on the preconditions for successful registration as Lawrance in his 1970 piece (see Al2, above), the author goes on to list three problems inherent in registering customary land holdings: unused land, group ownership, and customary land on the register. Potential negative effects of registering customary land include the perpetuation of current landholding patterns, loss of land due to indebtedness, elimination of automatic entitlement to land, and loss of community influence.

Chapter 13 offers a discussion of multiple ownership, fragmentation, and consolidation. After defining these terms, Simpson then talks of their causes and possible "cures." Cures for multiple ownership include partition, appointment of trustees, incorporation of co-owners, and compulsory sale of uneconomic shares. Concerning fragmentation, the author discusses the British enclosure

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movement, as well as modern efforts at consolidation, which follows a three-step process: a plan of proprietary units and owners, classification and valuation, and a plan and schedule of proposed new parcels. Ways to prevent fragmentation are also presented.

Actual adjudication procedures are covered in Chapter 15 and revolve around the legal basis of registration; selection of adjudication areas; participants, appeals and rectification; and possible combination with consolidation. Chapter 21 provides examples of laws used to set up title registration systems in Kenya, Lagos, Seychelles, Sarawak, Malawi, Ethiopia, and Malaysia.

Many of these same ideas are presented in an abbreviated form in:

A22 Simpson, S.R. "Adjudication of Title and First Regis- tration." "Systematic Adjudication." "Land Law and Reg- istration." Presented in the land registration course at Marlborough House, October 1964-March 1965. Mimeographed.

A very different perspective is contained in the following:

A23 Thome, Joseph R. "Are Titling Programs Always Good?" Paper presented at the International Workshop on Land Tenure Administration, Salvador, Bahia, Brazil, 20-24 August 1984.

Thome states that the emphasis of titling programs tends to be on func- tional and technical aspects without recognition of the socio-political issues. He says that titling does not necessarily benefit everyone. Instead, it can dispossess smallholders, or titles may not be available to smallholders due to the cost and complexity of the process. Indeed, the assumption that titling enhances credit access may be invalid. If titling does take place, the author suggests the following: use simple administrative procedures with few documents, institute legal services for peasants, and provide for an adequate level of credit, technical, and other services to allow smallholders to compete with larger, established farmers.

Two articles attempt to analyze from an economic perspective the alternatives in tenure schemes:

A24 Hoy, M., and Emmanuel Jimenez. "Analytical Issues in Urban Land Tenure in Developing Countries." Research Report (draft), October 1984.

This article examines the alternatives in urban tenure schemes and the government's role (especially pertaining to squatters) and aims to identify factors that influence government decisions on eviction and whether these are counterproductive. After a description of the model and its assumptions, the authors conclude that transfer of property rights to land may lead to either