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

21

ANGOLA

The customary tenure systems of Angola vary among the different ethnic groups. Nevertheless they all share the notion of land being owned communally rather than individually. There has been no regis- tration of these lands.

During the colonial period the Portuguese government's main aim was to encourage Portuguese settlement of the colonies. In order to encourage this migration, legislation regarding land ownership was passed in 1901, 1919, 1933, 1954, and 1961. The law of 9 May 1901, established that all land which was not private property was state domain and could be granted to settlers. The status of Africans was not clear. The decree issued in 1919 tried to solve the problem of African land use by alloting specific areas for the exclusive use of Africans. Individual rights were granted to Africans in these areas but they did not hold legal titles for the land. The constitution of 1933 stated that the colonies were overseas provinces of Portugal and that land in these overseas provinces was divided into public domain of the Portuguese state, private property and vacant lands. Public domain lands were the continental shelf, the subsoil, natural wealth, and specific areas reserved for such purposes as conservation, scientific exploration, settlement, and occupation by Africans. Vacant

who accepted Portuguese civil law and culture (assimilated) could acquire full rights of ownership. The decree of 1961 did not change the principles involved but did try to solve some land problems. The decree distinguished between two categories of land rights: one applying to Portuguese citizens and African "Assimilados," and another applying to "Natives." The Portuguese would be given concessions which would grant them the right to use land permanently for agricultural purposes. They would pay rent for a particular time period (usually five years) and then receive full title.

From these laws it is clear that the Portuguese did show some concern for the rights of Africans but their main concern was to encourage Portuguese immigration. Nevertheless, concessions amounted to a small portion of the land and many Africans continued to hold land under customary land tenure rights throughout the colonial period. Also, despite the concern reflected in the legislation, nothing has been written in Portuguese or any other language which discusses the problem of registration.

At independence all land, with the exception of some foreign investments, was nationalized. The new government immediately began to administer the ex-Portuguese plantations as state farms. The state, however, did not intervene in the traditional sector because of their military and political concerns. Most post-independence literature about Angola also addresses these concerns rather than tenure issues.

23

BENIN

Land titling and registration take place in Benin only to facil- itate the consolidation and availability of land for governmentsponsored cooperatives. In the regions of Mono, Atlantique, and Oueme, 50,000 hectares had been consolidated and titled as of 1973. There are no published materials which analyze the effects of titling or discuss current status.

Although giving no analysis on its impact, Moise Mensah provides the only concrete examples of registration and titling in:

B1 Mensah, Moise C. "An Experience in Group Farming in Dahomey: The Rural Development Cooperatives." N.p., 1975.

This paper is primarily a description of the operation and rationale behind the institution of rural development cooperatives; it also discusses the land tenure arrangements for these cooperatives, which involved the survey, consolidation, and titling of land affected (see pp. 5-6).

Based on the authority of Law 61-26 (1961), the process of land acquisi- tion began with the government choosing an area for the development of oilpalm or improved food crop production. The landowners in the area were required to allow the cooperative the use of the land for a lease period of fifty years, during which time the owner would receive a small annual rent. To ensure the return of the land to the landowner upon dissolution of the cooperative, titles were issued. However, co-op profits were allocated on the basis of labor provided, not land. In this way, the landless could participate on an equal basis with landowners. Mensah further states that although initial opposition by landowners in affected areas was heavy, governmental pressure somewhat subdued such opposition.

As of 1973, in the Mono, Atlantique, and Oueme regions, these co-ops had 15,000 members working 28,000 hectares of oil-palm plantations and an additional 24,000 hectares of annual food crops.

Corroborating the discussion of registration procedure is:

B2 Food and Agriculture Organization. Comité Special pour la Réforme Agraire. "Note sur la reforme agraire au Dahomey."

Rome, n.d.

This paper describes the process of land acquisition by rural development coops, a process entailing survey, consolidation, and titling. In addition, FAO offers the explanation that the government established these coops because landowners in the southern oil-palm region did not offer enough security to those working the land to facilitate development.

A 13-page appendix on traditional forms of land transactions is also included.

24

A slightly different view is given by:

B3 Moussemkou, Nadjimou. "Le regime foncier en République du Dahomey." Paper presented at the UN Seminar on Cadastral Surveying and Urban Mapping in The Federal Republic of Germany, 24 June-5 July 1974.

The author states that registration occurs mainly in the urban areas since rural lands are difficult to value and very fragmented, and also be-cause rural inhabitants are suspicious of titling for tax reasons.

Without offering much in the way of analysis, the author extols the value of titling and registration as a means of ensuring the security of access to land that would facilitate the adoption of improved techniques necessary to increase agricultural propduction.

25

BOTSWANA

Registered rural land in Botswana is of two principal kinds, freehold and leasehold. Freehold areas, about which comparatively little has been written, are those land areas, amounting to some 7,500 square miles before independence, which were originally allocated for European settlement during the time of the Bechuanaland Protectorate. There are six such areas: the Gaborone-Lobatse Block,

as Colonial Development Corporation ranches, is in the south along the Molopo River. Ghanzi and Xanagas Farms are in the extreme western part of the country, bordering on Namibia. These farm blocks began as isolated settlements of Afrikaans-speaking farmers but now are neither as remote as they once were nor exclusively owned by Afrikaaners. Much of the freehold area around Gaborone, originally part of the Gaborone-Lobatse Block, has been converted into State land and absorbed into the expansion of the capital. There is also less freehold land in the Tati Block than there once was: some land has been returned to communal use, and in the area around Francistown 13,000 hectares have recently been acquired by the Department of Surveys and Lands for future urban expansion. In the Molopo Farms Block the southern area remains divided into freehold farms, while in the northern part, the farms have been held as leaseholds since the 1960s. The areas of freehold farms which remain in the Tati, Gaborone-Lobatse, Molopo, and Tuli Blocks specialize in beef pro- duction (as do the leasehold farms in Molopo) and are relatively close to the rail line; they have generally been more prosperous than

the southeastern part of the country. The leaseholds were originally granted in the late 1890s to Barolong royalty and headmen. In recent years the Barolong Farms area has had especially high agricultural yields, and its success, and the causes of it, have generated con- siderable interest and some controversy as well.

Leasehold is the preferred form of tenure innovation today in Botswana. While the colonial government favored freehold tenure as the means of placing land in private hands, the government of inde- pendent Botswana, not wishing to alienate land on a permanent basis, has preferred to grant leasehold tenure in both the urban and rural areas. The Tribal Land Act of 1968 makes provision for granting common law leases for purposes of industrial and commercial development in the tribal land areas. More relevant for the purposes of

26

designate areas for commercial livestock development for allocation to individuals and groups of individuals on a leasehold basis. There is as yet no authority for use of long-term leaseholds for commercial cultivation.

There has been little systematic study of agricultural development in the freehold farm areas, and most of the information avail-able is found in the context of broader analyses. One such study is the Russells' anthropological work in the Ghanzi Farms community.

B01 Russell, Margo, and Martin Russell. Afrikaners of the

Kalahari; White Minority in a Black State. Cambridge: Cambridge University Press, 1979.

Based on fieldwork carried out in the mid-1970s, Margo and Martin Russell's study describes the Afrikaner farming community in the Ghanzi region in northwestern Botswana. Their principal aim is to analyze the

changes that have taken place since independence within a group that has long maintained an isolated, separate existence from other groups, both racial and political. Their concern is largely with social change, and thus the information they present with regard to freehold tenure and agricultural change is provided largely as background. Nevertheless, their study is useful for its description of a specific agricultural community in Botswana in which land is held in freehold.

The first Afrikaner families to settle in Ghanzi arrived in 1898 and were given very generous allocations of land by the government of the Protectorate of Bechuanaland, as Botswana was then called. Each family (there were 41 in all) received use rights to 5,000 morgen (4,250 hectares) of Crown land in exchange for an annual rent. The original notion was that after 30 years these use rights would be replaced by freehold title, but few of the settlers actually arranged for the conversion, with the result that by the 1930s, the "majority of the farms remained Crown land, leased to a small shifting group of struggling, rent-evading stock keepers" (p. 122).

In the 1950s, in an attempt to force a more intensive pattern of land use and commercialization of production, the decision was made by the government to fence off, survey, and issue freehold title to the land, the rationale being that with title holders would have access to credit and be able to use this new security to capitalize production. In 1959, when applications for freehold title were first distributed, the two most important qualifications for selection were race and residence, with long-time Afrikaner settlers being given preference over newer arrivals. Of the 87 original applications, 19 were refused, apparently on the basis of a lack of either capital or farming experience. Conditions for approval and continued possession of the freehold title included adequate fencing and stocking, the existence of boreholes, and the reduction of farmers' households to appropriate levels ("appropriate," apparently, as determined by British colonial officials). Farmers who failed to meet these requirements forfeited their title, a condition that was rescinded in 1964.

Although the Ghanzi settlement is scarcely larger than it was at the beginning of the century, it is clearly a more prosperous area than in the past and far better integrated into the regional economy. The role of

27

freehold in creating this new affluence, however, is probably less important than the world-wide rise in beef prices. But what the British regulations accompanying the conversion to freehold have accomplished is to give white Afrikaner farmers a headstart in the scramble for freehold land tenure. In Ghanzi, the result has been to drive away all but the landowning few, who, despite independence in 1966 and the occasional sale of a farm to a non-white, are still predominantly Afrikaners. In addition, a certain number of the farms have been acquired by non-resident South African entrepreneurs and companies. Commercialization of production has brought new social relations and tensions; conflicts between employer and worker have replaced the uneasy truce that once existed between Bushmen hunters and Afrikaner cattlemen.

The Tati Block, in the northeastern part of the country, is an area of mixed land tenure, and this combination of freehold and communal tenure forms has created some difficulties. Originally claimed by the British South Africa Company at the end of the nineteenth century, the land was partitioned into areas of contrasting land use over the next several decades: some of it was sold off as freehold farms, other parts designated as areas of communal holdings for Africans (known at the time as Native Reserves), and still other areas leased out by the Company, mostly to Africans who could not get land in the overcrowded Reserves. Throughout the colonial period overcrowding and overstocking in the Reserves remained an unresolved problem. Although the Reserves no longer exist in the strict sense of the term, communal and freehold areas continue to exist side by side in what is now known as the Northeast District.

The following report, which focuses on the communal rather than the freehold areas of Northeast District, alludes to some of the conflicts and disputes that can arise when the two kinds of tenure are interspersed:

BO2 Fortmann, Louise et al. A Study of Local Institutions and Resource Management in the North-East District CFDA. Gaborone: Applied Research Unit, Ministry of Local Gov- ernment and Lands, March 1983.

Since the 1930s the communal areas of Tati District (now Northeast District) have been overpopulated and overstocked, while the freehold farms, for the most part, have had to support fewer individuals and smaller livestock herds. As a result, much of the pasture land in the communal areas has been overgrazed, a stark contrast to the more than adequate pasture available on many of the freehold farms. This difference in carrying capacity is at the heart of the conflicts between the two tenure areas, and the situation is made all the more apparent to residents of the communal areas by the fact that the freehold and communal areas are interspersed and share many boundaries. The grass actually is greener on the freehold side of the fence.

Because grazing is generally better on the freehold farms, stock owners from the communal areas often let their animals wander onto the farms, and may even cut the fence to permit them to do so. In a number of areas free-hold farm owners have taken to holding the trespassing animals until their

28

owners pay a fine. In addition, they sometimes return the favor by letting their own animals onto the communal grazing areas thus saving their pasture. Grass is also needed in the communal areas as thatching, and because so little is available, residents often turn to the freehold farms for it. This too is a source of conflict: what is a free good in the communal areas must be paid for on the freehold farms, and some farm owners refuse make the grass available in any case. A third source of tension between the two areas is the pattern of interspersion, in which communal areas may be bounded on two or three sides by freehold farms. Such a settlement pattern, for example, prevents communal areas from expanding as their populations increase and cannot provide adequate grazing land for cattle. Instead, residents may be forced to rent pasture from freehold farm owners.

These conflicts between the two areas are longstanding and tend to worsen in times of drought. The problems are due less to the fact that one area is registered and held outright (and the other not) than to the fact that communal areas have many owners and support larger populations than do the freehold farms.

A description of present-day conditions in the Tuli Block of freehold farms is found in the following article:

BO3 Mazonde, Isaac. "Tuli Block Farms: Stars that No Longer

Shine." Kutlwano, July 1985, pp. 20-21.

Mazonde writes that the farmers in the Tuli Block, once a prosperous area of arable farming, are now abandoning agriculture and turning to live-stock production. The result is that farms are becoming overgrazed and that yields of such important crops as cotton have fallen dramatically in the past few years.

A number of factors are responsible for this shift, only some of which are related to the land tenure situation. As freehold farms, there are virtually no restrictions on their transferrability, and at independence many white owners, uncertain about the future, acted quickly to realize what profits they could. In many instances, farms were subdivided into smaller units, often without the riverfront footage that had been crucial for agri-

cultural irrigation in the past. Many of the buyers were without the agricultural or managerial experience that had been accumulated by the white owners, and as a result yields fell. Recent drought has accelerated this decline, as has the lack of an adequate marketing network for vegetables in Botswana. Another factor in this shift has been the government's emphasis on production in the communal areas, intended to reverse the focus of the

colonial years. And finally, there has been the favorable trade in beef with the EEC countries which has made cattle more profitable than crops.

Mazonde suggests that more assistance be made available to freehold farmers, who will, he believes, soon be forced to return to crop production as soaring farm prices (up from P20 per hectare in 1966 to P50 in 1984) bring pressure for smaller farm units and more intensive land use.

Another area in which land has long been registered and held on an individual basis is the Barolong Farms, first divided up into

29

leaseholds in 1892. Colonial policy was to grant white settlers freehold title, but Africans, in those few instances in which they were granted registered title, received leaseholds. Barolong Farms is now held up as an example of agricultural success and there have been a number of studies that have analyzed the basis for this prosperity. The oiiginal study of land tenure in the Barolong Farms, unfortunately unavailable to us, was done by Isaac Schapera for the Protectorate of Bechuanaland in 1 9 4 3 :

B04 Schapera, Isaac. Report on the Land-tenure System of the Barolong Farms in the Bechuanaland Protectorate. 1943. Reprinted by the School of African Studies, University of Cape Town.

John Comaroff has also studied the Barolong Farms area extensively and formed very strong ideas about the course of its development. In the following paper, he analyzes the impact of leasehold tenure and the economic and social changes that have come about in the ensuing years.

BO5 Comaroff, John L. "Class and Culture in a Peasant Economy: The Transformation of Land Tenure in Barolong." In Land Reform in the Making; Tradition, Public Policy and

Ideology in Botswana, edited by Richard P. Werbner, pp. 85-113. London: Rex Collings, 1982.

Comaroff's chapter traces the changing patterns of land tenure and land use over a period of 90 years and shows how the interaction of indigenous customs and economic and political change has resulted in a system of individual land rights and in wiaening class divisions between large landowners, small holders, and the landless.

Barolong Farms is an area of 430 square miles in the southeastern area of Botswana which was first divided up into individual leaseholds in 1892. Of the 41 farms that resulted, 25 were allocated to senior Barolong royalty, 9 went to headmen of large wards in Mafikeng, and 3 were made out in the name of wards rather than persons. Comaroff emphasizes that it was individual, and not group, rights that were granted, with the leasehold to last for the lifetime of the recipient; among the rights granted the leaseholder were the freedom to

to pay an annual rent of El 10s and could not be absent from their farms for longer than 12 months at a time. What was not clear was whether the leasehold could be inherited or if it could be sold to a non-Morolong.

Over the years, certain de facto rights of the leaseholder came into existence, rights which enabled the holder to act as though he owned the land. Once the allocations were made, they were never voluntarily alienated. As a rule, at the death of the leaseholder rights to the land were passed to the eldest son or closest lineal descendant, and the land was regarded as the personal property of the leaseholder. Although in theory the Barolong chief had the right to reallocate the lease to wnomever he chose, in actuality he declined to interfere in the process and no new certificates of occupation

30

were ever issued. The relationship between the leaseholder and the indigenous residents was never specified, either on the original certificate of occupation or subsequently, but over time certain powers accrued to the leaseholders. Perhaps most important was that they could sublease the land as they wished, even to whites, and might chose who might live on their land, claim rent from them, and act as headmen. Until the 1960s, however, few leaseholders exercised close control over the people on their land or derived substantial income from it. By the time of independence (in 1966), each farm was occupied by 40-250 people organized by family groups and farming roughly adjacent fields. Because the amount of land and the returns from it were adequate, there was little supervision of individual farms and few disputes.

Recent economic and political developments have altered this pattern, and rising land values and numbers of share-cropping arrangements have led to increasing notions of class and of affinities within these classes. The peasantry are more and more vulnerable to expropriation of their land (presumably by the leaseholders) and to being closed off from boreholes. For the wealthy, on the other hand, economic opportunities have increased as demand for various services and specialized pieces of equipment has risen. The most important factor in this course of events has been the passage of the Tribal Land Act in 1968, a piece of legislation which, by its arrogating to Land Boards responsibility for the allocation of land, has enabled the commercial farming class to consolidate its powers and promoted polarization in Barolong. (Comaroff unfortunately does not specify what has happened to the leaseholds and whether they remain in force or have reverted to another form of tenure.) The Land Board, originally under the chairmanship of the Barolong chief, is dominated by large landholders drawn from the commercial agricultural sector who are able to use the powers of the board to secure rights to large tracts of land for themselves and their associates. In addition, landholders now act as though they own the land outright, and land has been transformed into a readily negotiable resource that can be deployed for profit, a far cry from the old tenet that access to land is the right of every citizen. As Comaroff writes, "Albeit unwittingly, the Act imparted legitimacy to this transformation: by failing to envisage the implications of land scarcity or the ambiguities of the policy in which it was grounded, its architects gave state sanction to, and ready means for, the realisation of the peasant-capitalist formation--and, with it, the destruction of precisely those customary arrangements which were ostensibly to be protected" (p. 111).

(Note: Another version of this paper appeared with the same title in the Journal of African Law 24 (1980) : 85-113.)

Not all researchers agree with Comaroff's views on the role of land tenure in agricultural development in the Barolong Farms area. A different perspective is outlined in the following report:

BO6 Staps, Joep. Barolong Farms Geographical Structures and Land Use Policies; A Need for Realism. Good Hope, Botswana, December 1981.

Although Staps agrees that agricultural production levels in the Barolong Farms have been impressively high, he does not believe that yields have