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

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holdings so that immigration and settlement of newcomers could be monitored and

controlled by the Tati Land Board.

Surveying participants in the project two years later, the Applied Research Unit of the Ministry of Local Government and Lands found that there had been inadequate publicity and preparation before implementation of the project and that many people remained unclear as to what had occurred and how they might benefit. A sample of 28 participants in the area revealed that 75 percent did not know about the project. And while most agreed that it was beneficial to have boundaries clearly identified and marked, many complained that they could not extend their lands and that they had not been given notice by the Land Boards. The report also noted that it was too soon to measure if patterns of investment or inheritance had altered as a result of the project and that there was no correlation between knowledge of the project and investment patterns as yet. In its recommendations it suggested that in future both the Land Board members and the general public be educated as to the goals of the project and its procedures. In addition, and perhaps even more crucial, it recommended that the land registration and land allocation processes be coordinated. As it stands now, a new record of holdings has been created which is poorly understood and which will be virtually impossible to maintain in the future.

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BURKINA FASO

Although there is no system of registered individual freehold in Burkina Faso, a new decree, enacted in 1985, indicates the intention on the part of the government to create a national system of permits and rights to land as part of the establishment of a system of land-use planning for the entire country. All land in Burkina is State land (as decreed in 1984), and while the new proclamation in no way negates this principle, it provides for nationaland regional-level land surveys to be carried out, management plans drawn up, and titles and occupation permits issued to individuals and groups. The decree outlines several different rights of occupation for which application may be made. Among them are a permis d'occupation, which grants temporary rights to an individual who wishes to use to land for "une activité lucrative"; a permit to occupy urban land (permis urbain d'habiter), which conveys permanent right to land on which an individual may build housing for himself and his family; and a permis d'exploitation, giving permanent right to rural land or, more gen-

erally, to land to be used for profitable activities. From the language of the decree, the urban right appears to be an individual one, while rural land rights may be granted to either individuals or groups. Allocation committees are to be established at all levels to manage the process and to rule on disputes. (See Decree No. 85-404-CNR/PRES; for the complete text, see the Journal officiel du Burkina Faso, 22 August 1985.)

The decree thus calls for the implementation of a system of written permits and titles, and although the thrust of the legislation is on the drawing up of plans for rational management of pastoral, agricultural, irrigated, and urban lands, a written record of land rights, accorded to both individuals and groups, will also be created. To what extent such an ambitious program can ever be implemented, however, is an unanswered question. Before the coup which overthrew President Sankara, the World Bank had been consulting with members of the government and was considering carrying out a program of demarcation of rural plots. (Also under consideration was a separate project to register urban land, beginning first in Ouagadougou and Bobo-Dioulasso.) By working with village officials and by keeping other expenses to a minimum, the Bank hoped that the project might be done rather cheaply. It had apparently not yet decided if a formal land register would be one of the results of the program (although the decree discusses the procedures for the maintenance of one). President Sankara had declared that the demarcation was to be done rapidly throughout the entire country, in a nine-month period, but Bank officials remained skeptical. These projects are now up in the air with a new government in power--as indeed are the laws themselves.

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BURUNDI

Although registered land is no longer limited to urban areas or to land owned by Europeans as it was during the colonial period, it still remains relatively rare in Burundi. Registered rural land is largely limited to those holdings purchased by members of the urban elite, and there have been no studies of either the frequency or effects on production of registration. The new 1986 Code foncier du Burundi

of rural lands by its provisions for the establishment of new local land registries outside the capital. [The new code has been published in the Bulletin officiel du Burundi, v. 25, nos. 7-9 (September 1986), pp. 125-69.]

A thoughtful and lengthy discussion of the suitability of land registration for Burundi is found in the following:

BU1 Nimpagaritse, Didace-Olivier. "Organisation foncière et disparité des statuts immobiliers au Burundi." 2 vols. Doctor of Laws thesis, Université Libre de Bruxelles,

1983.

Although Nimpargaritse's thesis was written before the passage of the most recent land legislation, the points he makes with regard to the application of written land law and the implementation of a country-wide program of land reg- istration remain relevant. Nimpagaritse does not favor replacing customary land law with a European-derived written code, maintaining that despite obvious changes that have taken place in the customary system in the twentieth system, it remains flexible and continues to provide landholders with quite adequate security of tenure. Implementation of a national program of land registration would not only prove both expensive and time-consuming, but might also bring unwanted changes in landholding patterns. Registration of individual rights, with its requirement that individual holdings be legally defined, Nimpagaritse suggests, even in areas where de facto individualization of holdings is already prevalent, may actually serve to increase problems of sub-economic holdings and militate against the adoption of more efficient agricultural practices. It may also act to increase rather than lessen the number of land disputes.

Nimpagaritse argues that it is not enough for the government to legislate changes in the land tenure system to achieve the desired ends. People must be willing to adopt the new system, and the necessary costs and complexities of land registration are likely to discourage them from doing so. Moreover, a certificate of registration is unlikely to confer additional legitimacy of title to a rural population that is largely illiterate and poor. Nimpagaritse also questions the ability of the state to provide the necessary manpower, facilities, and equipment either to carry out the initial surveying and registration operation or to maintain the necessary records subsequently. If the

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maintenance of records of births, marriages, and deaths provides any gauge, it is highly unlikely that the government will be able to maintain accurate, up- to-date registers of land transactions.

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CAMEROON

Two laws govern the process of land registration in independent Cameroon: the law of 9 January 1963, which establishes the registration system and outlines the conditions under which land may be acquired by individuals in definitive concession from the state, and the law of 7 July 1966 (and its amendments), which lays out the procedure for registration of title. A substantial proportion of lands registered by private individuals is in the cities, while the government has used registered land for resettlement projects in MarguiWandala Department, near Nkondjock, Mbongo/Eseka, and Goura. Between 1974 and 1979, 8,949 parcels of land were registered, with Douala accounting for half this figure (figures are from C5, below). There is, however, no publication which specifies how much land in which locations has been registered or discusses what the effects have been.

Written from a legal perspective, and listing no specific examples of registration or titling:

Cl Melone, Stanislas. La parentè et la terre dans la strat-giè du dèveloppement. Paris: Editions Klincksieck, 1972.

Melone traces the history and structure of both legal and customary land tenure in Cameroon. On pages 169-178, he discusses the effects of the law of 7 July 1966, a law intended to simplify land registration procedures. In essence, registration is made primarily a matter of administration, thus according a more active role for the state. In addition, holders of traditional tenure (for example, members of lineages) can more easily obtain "definitive and irrefutable" title to their land.

One step in the registration procedure includes the compilation of a file which records current land use, location and limits of land, names of neighbors with adjacent land, names of all persons who helped bring the land into production, and other contracts affecting the land. Other procedural steps include a demarcation of borders as agreed upon by all interested parties, and filing with the Prefect. Problems that arise are to be settled by a tribunal composed of members of the various ethnic groups in the area.

Finally, Melone touches on the lack of sufficient personnel to administer this system, as well as unresolved legal questions, which include the problem of different members of a lineage claiming the same parcel of land.

In contrast to Melone is the following article:

C2 Dikoume, Cosme, and Philippe Lippens. "Les problèmes fonciers au Cameroun Oriental." Douala: Institut Panafricain pour le Développement, 1970.

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Written by a sociologist and a lawyer, the article begins with a dis- cussion of traditional tenures. The authors state their view that the law of 9 January 1963 was a justification to mount resettlement programs by creating national lands through the appropriation of "unused" land, which could then be given to settlers under a "personal and definitive" title after a stipulated time period.

The following settlement projects involving titling are cited:

1)Department of Margui-Wandala: 46,000 Kirdi people moved from mountains to the plains_(1960-1969);

2)Bamilike area, Nkondjock region: 714 families moved and installed (by 1969);

3)Mbongo and Eseka: law used to establish large oil-palm plantations.

Lastly, reference is made to the law of 30 November 1966 that bars registration in the name of the collectivity (that is, ethnic groups).

Case 1 above is expanded upon by Hoben in:

C3 Hoben, Allan. "Social Soundness Analysis of the West Benoue Integrated Rural Development Proposal, and Suggestions for Alternative Interventions in Margui-Wandala." Washington, DC: USAID, 1976.

In his broader analysis, the author notes on pages 41-43 a resettlement project in northern Cameroon involving land titling. Located at Mokyo, 20 kilometers north of Maroua, this project encompassed 2,200 hectares and 2,200 people, who were relocated from the mountains to the west. Rectangular plots of 4 hectares each were marked, numbered, and registered to settler farmers. By 1967, 594 households had been settled in the area. However, by 1976, official support had ended, services were deteriorating, and some settlers had already returned to their home villages. No further mention is made of the status of the titled land.

Yet another specific example is the project discussed in:

C4 Cameroon, United Republic of. Ministry of Social Affairs. "Programme for Socio-Economic Development Through Assistance to Young Farmers in the Mbam Department." Yaounde,

November 1977.

In this project, young farmers are to be settled with the aim of improving cultivation techniques. Located in Goura and Mont-Tama in the Ntui arrondissement, land in the project is to be given to each farmer through "permanent and hereditary" title in two stages. For the first five years, the farmer receives a provisional title. After this time, if all conditions of occupancy are met, the title becomes permanent.

No indication is given as to whether this project has moved out of the planning stages.

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On a country-wide scale, Tah presents total figures for land registered through 1979:

C5 Tah, Zachariah Ngoh. "The Effects of the Cameroon 1974 Land Ordinances." Ph.D. dissertation, American University, 1980.

Despite the author's weak methodology and the fact that he does not analyze the effects of registration itself, Tah makes some interesting comparisons between registrants and non-registrants. Within a non-randomly selected sample of fifty people, the eight who had registered land were generally literate, aware of the registration ordinances, and tended to register primarily homes and businesses in urban areas. (These tables can be found on pp. 138-40.)

The author found that only about 20 percent of the general population had knowledge of land ordinances, though registrants represent only 0.338 percent of Cameroon's population. During the 1974-79 period, 8,949 people registered land, with the following breakdown by region:

However, the author provides no information on parcel sizes, and the trends indicated by the respondents cannot be easily extrapolated to the general population of registrants.

Other, less useful documents include:

C6 Lawrance, J.C.D. "Report on a Visit to the Federal Repub- lic of Cameroon." International Office of Cadastre and Land Records. London: Ministry of Overseas Development Administration, 1970.

Lawrance distinguishes between the registration of deeds in anglophone Cameroon and the registration of titles found in the francophone sections and argues that deed registration only registers transactions in land without establishing the legal right of the interested parties to the land affected. [Unification of the two sections of Cameroon has rendered this moot since 1970 as legal codes were unified at the same time.]

A brief synopsis of advantages of title registration is given, and these include: clearer legal definition of parcels; quicker, easier, and cheaper

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land transactions; and decreased litigation. General procedures for regis- tration are adjudication of existing rights, boundary survey, registration and control of dealings in land.

A similar discussion centering on colonial era laws is presented

in:

C7 Angladette, A. "Note sur les conditions, modalités et effets comparés des règimes de 1'immatriculation des immeubles et constatation des'droits fonciers des indigènes dans les territoires tropicaux de 1'Union Frangaise." Land Tenure Symposium, Amsterdam, 26-28 October 1950. Leiden: Universitaire per Leiden, 1951.

Angladette discusses the legal aspects of the outmoded dichotomy between land registration and "verification" of land rights (the latter accorded indigenous populations). He outlines basic statutes important to both of these concepts, with a brief mention given the Cameroonian law of 21 July 1932, which was the basis of land registration in Cameroon and stated the guarantees explicit in registered land.

Registration is contrasted with the verification of rights (constatation). This verification was an intermediate step between outright registration and traditional rights to land. Verification served to legitimize traditional land rights and was intended to facilitate agricultural development through increased security in the holding of land. [Please note that laws in 1963, 1966, and 1980 have superseded this old legislation.]