Экзамен зачет учебный год 2023 / Dickerman, Land Registration in Africa
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more or less efficient use of land, and therefore government decisions to evict depend on high potential development value of the land, low costs of eviction, and the irrelevancy of squatter well-being.
The second analysis focuses on squatters in Devco, Philippines, and attempts to measure tenure security:
A25 Jimenez, Emmanuel. "Tenure Security and Urban Squatting." Report No. UDD-46. Washington, DC: The World Bank, 1984.
The bulk of this article is devoted to an explanation of the assumptions and the model used in the analysis. The conclusion is drawn that formal sector unit-dwelling prices are 18-58% greater than equivalents in the informal sec-tor, with price differentials greater for lower income groups and larger house-holds. Jimenez states that this type of analysis could be used to design and price urban development projects which grant tenure security to beneficiaries.
A more technical discussion of registration is found in:
A26 Morgan, J.F. "The Western Australian Land Information
System: Digital and Numeric Capture of the Cadastral SubSystem." Paper presented at the Conference of Commonwealth Surveyors, Paper no. J.4, 1983. Mimeographed.
This paper describes the implementation of a computer-based land informa- tion system in Australia. Digitalizing existing maps is preferred over ground survey for cost-effectiveness (18 versus 137 man-years of labor). Actual surveying is reserved for future land transactions required to update the system. The paper includes a short section on the computer hardware used and the processes involved.
The use of aerial photogrammetric methods is discussed in:
A27 United Nations Centre for Human Settlement (Habitat). "Aerial Photography and Self-Help Surveys." UNCHS Technical Notes no. 2. Nairobi, n.d.
The paper focuses on a low-cost, low-technology approach to mapping used in a project in the Philippines. The technique involves the use of a regular 35 millimeter single reflex camera mounted in a crop-dusting plane flown at an altitude of 800 meters. Adequate resolution was obtained to combine the results with a detailed questionnaire on land tenure patterns, buildings, businesses, waste disposal methods, and water supply.
The potential contribution and relative cost of microcomputers as the basis of a land registration system is the focus of:
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A28 Greenwood, D.W. "Cheap Microcomputers and Land Registra- tion Systems." FAO Workshop on Land Tenure and Rural Development, Tonga, April 1984. Lae, Papua New Guinea: Papua New Guinea University of Technology.
The following article, although not specifically dealing with registration, makes some interesting observations about the role of technology which can be extrapolated to the discussion on titling and registration systems.
A29 Barnes, Grenville. "The Challenge of the Third World." Proceedings of the Colloquium on Survey and Mapping Education, June 1985. Frederickton, Canada: University of New Brunswick.
The following two articles appear to be of value but could not be obtained:
A30 Allott, Anthony. "Theoretical and Practical Limitations to Registration of Title in Tropical Africa." Paper presented at the Seminar on Problems of Land Tenure in African Development, December 1971. Leiden: Afrika-Studiecentrum, 1971.
A31 Warren, D.E. "Method of Survey Suitable for Registration Purposes." Paper presented at the Seminar on Cadastre, Addis Ababa, November-December 1970. Report no. E/CN.14/ CART/259. U.N. Economic Commission for Africa.
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FRANCOPHONE AFRICA
Under colonial rule, much of Francophone Africa was subject to a relatively uniform application of land laws that included stipulations for registering and titling land. Relevant laws include those in 1896, 1906, 1932, and 1955. Although most countries promulgated their own legislation following 'independence, many of these newer laws retain the major elements of the colonial land laws they re-place.
There have been several reviews of the imposed French system of land law, including:
FRi Dowson, Ernest, and V.L.O. Sheppard. Land Registration.
London: Her Majesty's Stationery Office, 1956.
Pages 186-191 are devoted to a discussion of registration as reflected in the law of July 1906 and its July 1932 amendment. Based on the Torrens system, these laws established registration offices and registries to keep separate files on each parcel of land, recording all real rights as well as related deeds and transactions. Furthermore, registration of customary rights is allowed with adjudication; registered land "abandoned" for longer than thirty years is declared "vacant"; and registration is optional except in two cases: the alienation of State land and first transfers of customary rights to con-tract rights. In addition, registration confers upon the title holder definitive and unattackable rights and all rights of alienation, and is final and not subject to reversion to previous holding rights.
General works dealing with French colonial land law include:
FR2 Doublier, Roger. La proprieté foncière en A.O.F. Dakar:
Imprimerie du Gouvernement Générale, 1957.
Doublier describes from a legal perspective the various aspects of registration in French West Africa. Detailed are the administrative procedures, who must/may register, and judicial recourse. Additionally, the principles and effects of registration are considered, the latter in relation to and with customary tenures.
A particularly useful work, also written from a legal perspective, is:
FR3 Gasse, Victor. Les régimes fonciers africains et malgache. Paris: Librairie Générale de Droit et de Jurisprudence, 1971.
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Gasse provides a thorough history of the introduction of French law with reference to a number of countries: Cameroon, CAR, Congo, Chad, Ivory Coast, Gabon, Burkina Faso, Morocco, Niger, Togo, Tunisia, and Madagascar. (The large section on Madagascar is separate.) Gasse covers registration and its procedures, as well as its legal effects.
Similarly:
FR4 Angladette, A. "French Territories in Africa." Land Tenure Symposium, Amsterdam, 26-28 October 1950. Leiden: Universitaire pers Leiden, 1951.
Angladette uses various countries to illustrate French land law implementation. He emphasizes, however, the evolution of de jure tenure as it relates to the concepts of State land, public land, and private land. He notes that there were only 24,000 titles for private land (207,000 ha.) by 1948.
Many of these same points are discussed in the following:
FR5 Salacuse, Jeswald. French Speaking Africa. Vol. 1. Char- lottesville, NC: Michie Company, 1975.
Bachelet also deals with the key provisions of land legislation:
FR6 Bachelet, Michel. Systèmes fonciers et réformes agraires en Afrique Noire. Paris: Librairie Générale de Droit et de
Jurisprudence, 1968.
Bachelet attempts to show (pp. 189-201), how these laws were adapted to Africa. He further relates registration and titling to collective rights, as well as discussing adjudication procedures and the importance of an accurate register and surveying.
Another section deals with the concepts of both collective and individual land tenure by exploring their origins and evolution. Finally, the author weighs the advantages and disadvantages of individualisation, concluding that its adoption must depend on the degree to which farmers have entered the market economy and the strength of existing land control measures and authorities in a community.
A final group of documents places greater emphasis on postindependence trends vis-a-vis French-derived land law.
FR7 Christodoulou, D. Report of the Development Center on Land Policy for West African Countries. Rome: Food and Agriculture Organization, 1964.
A discussion of registration is nestled within a more general consideration of the importance of land tenure in Africa. The author states that
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registration is good only if it can be successfully implemented. Partial success results only in greater confusion. He sees a need for provision for "family" title that specifies who is empowered to deal with the land. However, the author recognizes the difficulty involved in clearly defining existing rights. Lastly, Christodoulou believes that "security of tenure" is a question of fact, whereas "proof of title" is a question of evidence that is necessary in changing the existing land situation.
A general overview is presented in:
FR8 Ofori, Issac M. "Agricultural Development and Land Tenure in Africa: The West African Experience." In Land Tenure and Small Farmer in Asia, edited by Jan Bay-Petersen, pp. 55-65. Taiwan: Food and Fertilizer Technology Center, 1983.
Ofori discusses the general principles of West African land tenure, current pressures on these tenures, and potential ways these may adjust. He advocates registration of titles as a means of alleviating insecurity of customary land holding and facilitating land classification. He also suggests in- corporating some form of title for group representatives in future legislation.
Kouassigan likewise presents an overview, albeit a more critical one, of French land law.
FR9 Kouassigan, Guy Adjété. "Agrarian Reform and Institutional Innovation in the Reconstruction and Development of Agriculture in French-Speaking Africa." Seminar Pa-per. Madison: University of Wisconsin, Land Tenure Cen-
ter, 1977.
Kouassigan points to the failure of French land law as reflected in the scant 3 percent of land registered at independence in Senegal. He then traces the evolution of land reform in independent Francophone Africa, which attempted to reorient significantly the legacy of French land law. His focus is on Senegal and Togo.
Using Ivory Coast, Senegal, and Cameroon, Verdier makes a similar analysis:
FR10 Verdier, R. "Evolution et réformes foncières de 1'Afrique Noire Francophone." Journal of African Law 15 (1971): 85-101.
A comparison between Niger and Nigeria is presented in:
FR11 Adegboye, R.O. "Land Tenure in Some Parts of West Africa." Ibadan: University of Ibadan, Department of Agricultural Economics and Extension, n.d.
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EAST AFRICA
This section reviews literature that covers land administration and registration in East Africa as a whole or that is theoretical and provides examples from more than one country. We discovered only three publications, all of them from before 1970. Two are products of the colonial period and deal with issues of land reform and British colonial attitudes toward and attempts to modify or regulate land administration prior to decolonization. In these publications we see the roots of land policies that emerged after independence in East Africa, and particularly in Kenya and Uganda (but see also under Malawi). The third publication, a collection of essays, was the product of a conference on land law reform held in Kampala in the late 1960s. The papers in this collection reflect a "modernist" approach to land law, being highly critical of customary and indigenous tenure institutions and recommending the imposition of individual title. More recent articles on land administration and registration, unfortunately, deal exclusively with particular countries, limited regions, or ethnic groups and lack the broader focus of the earlier literature.
A very influential British Command Paper, covering Kenya, Tanganyika, and Uganda, examines the social and economic situation of Africans in East Africa. This paper reviews British colonial land policy and recommends future courses of action in East Africa. These recommendations continued to shape land policy in East Africa (especially in Kenya) after independence as well.
EA1 Great Britain. East Africa Royal Commission, 1953-1955. Report. Command paper, Cmd. 9475. London: H.M.S.O., 1955.
This report, the product of two years' investigation and research in Kenya, Tanganyika, and Uganda, examines the social and economic situation of Africans in East Africa and recommends future directions for development and improvement of their position. Of particular interest is Chapter 23, "Tenure and Disposition of Land," which discusses and makes broad recommendations with regard to land policy for East Africa as a whole. The value of this chapter lies less in its description of specific tenure situations than in its recommendations, the assumptions of which guided the program of consolidation and registration shortly to be implemented in Kenya's Central Province.
The authors believe that customary tenure systems are by their nature resistant to change and tnat, because local customary authorities no longer exercise control over them as they once did in the past, these systems are often unable to provide adequate security of tenure. Although the authors do not believe it appropriate to impose individual tenure throughout the region, they recommend that laws be implemented which allow for the registration of
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exclusive individual ownership of land and provide for its orderly transfer. Such a system would permit a more productive, rational use of land and increase agricultural output. Moreover, adjudication and registration need not proceed district by district, but rather in its early stages could be made available to individual progressive African farmers, who then would serve as models and thus stimulate local support for a more systematic adjudication. The greater financial costs of proceeding in this fashion would be outweighed by the popular acceptance of adjudication and registration that the authors believe would ensue.
Adjudication and registration should be carried out so as to eliminate land fragmentation, and regulations could be implemented which would prevent the registration of sub-economic parcels in the future and thus the recurrence of the problem could be avoided. [See the section on Kenya below for subsequent studies that describe the recurrence of land fragmentation.] At the same time that fragmentation is eliminated, however, registration of individual title also introduces the possibility of chronic rural indebtedness resulting in the eventual transfer of land into the hands of a money-lending, non-farming class. Therefore, although credit must be made available to progressive African farmers, restrictions must be imposed to prevent landholders from mortgaging for purposes other than that of improving the land.
In response to the recommendations regarding land tenure contained in the report of the East Africa Royal Commission, colonial officials from Kenya, Uganda, Tanganyika, Northern and Southern Rhodesia, and Nyasaland met to discuss the implications of land registration in their areas, the situations under which it might be implemented, and the process by which such programs might be carried out. Their proposals are contained in the following:
EA2 "African Land Tenure: Report of the Conference on African Land Tenure in East and Central Africa, February, 1956." Journal of African Administration, vol. 8, no. 4, special supplement (October 1956).
Although conference participants recognize that African land tenure systems are not inflexible and immutable, they believe that trends toward individualization of title in some areas of Africa point to the need for registration of holdings, a step which will allow governments to guide and control the process of change. Conditions under which registration becomes an appropriate step include: excessive land litigation, fragmentation of holdings, increasing land transactions, changes in land use patterns, emergence of an exchange economy, and availability of agricultural credit. The participants also point out, however, that registration should be carried out only as it becomes appropriate and warn that governments must guard against it resulting in indebted- ness on the part of the land holder and against excessive concentration of large amounts in the hands of a few. The process of registration should include consolidation of fragmented holdings where necessary and provide for the demarcation of holdings with permanent identifiable boundaries on the ground. To be effective, registration must be undertaken with the participation of local authorities and an informed public, and its continuation can only be insured if records and conveyancing procedures are simple, accessible, and, in the case of the latter, cheap.
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Over a decade later, the need for appropriate systems of land tenure concerned African civil servants and professionals much as they had colonial officials earlier. At a conference on land law reform held in Kampala in the late 1960s, East Africans from Kenya, Uganda, and Tanzania, and with a wide range of technical expertise, presented papers and discussed the problems and need for land law reform and proposals as to how it might be implemented.
EA3 Obol-Ochola, James, ed. Land Law Reform in East Africa;
Papers delivered to a seminar organized bz the Milton
Obote Foundation, Adult Education Center. Kampala: Milton Obote Foundation, 1969.
This collection of papers covers land tenure and land law in Uganda, Kenya, and Tanzania. The first chapter presents a historical discussion of customary land tenure in East Africa up to the time this report was written. Most of the other articles discuss current problems with customary tenure and with the laws regulating land. Many papers advocate "modernization" of the tenure system, positing that communal tenure is part of the old, inappropriate system that inhibits socio-economic development. Individual title and private property, on the other hand, modeled on Western concepts, are viewed as more advanced and appropriate to agricultural development. Several chapters are especially useful:
The third chapter in the collection is a discussion of private tenure in Tanganyika. Although there is no mention of registration, there are comments on rights of occupancy for private, individual tenure during colonial occupation.
The fourth chapter discusses briefly the Registration of Titles Act that British colonial administration applied to the three territories of Kenya, Tanganyika and Uganda. The law stipulated that all transactions must be reg- istered and that registration would be conclusive evidence of title.
Chapter 11 focuses on registration laws in Kenya from 1908 to 1968. The evolution of tenure laws and problems and mistakes in their implementation are covered. The author proposes unification of all tenure laws in Kenya, suggesting the abolition of the separate systems of customary and received law. A more detailed discussion of registration laws in Kenya can be found in Chapter 12. (Chapters 2 and 13 pertain to land registration in Uganda and are discussed in the separate section on that country.)
In the conclusion to this collection, Obol-Ochola attempts to draw together some of the important observations of the papers and suggestions for land tenure reform. There are a number of suggestions regarding registration of land, the most important being that (1) programs of land consolidation and registration should be pursued in areas that are densely populated; (2) in areas that are not densely populated leases should be granted for the development of virgin land;
(3) the East African courts should abandon their conservative attitudes toward customary land tenure and recognize the evolutionary emergence of individual, private rights; and (4) dual systems of land rights should be incorporated into one system of laws.
Obol-Ochola underlines the participants' call for the unification of land laws in East Africa; he also emphasizes that alienation of land should be encouraged as this would maximize land use and socio-economic development. It is also suggested that fragmentation can be resolved by consolidation and registration of holdings.
