John W. Bruce, Mark S. Freudenberger and Tidiane Ngaido (1995):
Old Wine in New Bottles:

3.1 Rural communities: Legal framework and practice

From the turn of the century to the mid–1950s, the French colonial government shaped the legal framework and laws of the colony of Senegal to support an export-oriented agriculture, based primarily on groundnut production, and to bring the "civilizing" influence of the Napoleonic Code to France’s overseas territories. Various legal texts were introduced at the turn of the century to try to introduce to the French West African colonies the concept of the "domain" of the state. A decree in 1904 stated that all "vacant and unowned land" (terres vides et sans maîtres) belonged to the state. This legislation provided the colonial government with considerable latitude to determine what constituted privately owned and public lands. The "public domain" of the state was later modified by the "Loi no. 76–66 du 2 juillet 1976" to include off-shore waters, ocean shores, and natural inland water points, all subsurface land, and air space (Journal Officiel 1976, pp. 1478–86).

Throughout the colonial period the administration attempted to promote the privatization of landholdings. The registration of customary land use rights (immitriculation) was promoted on several occasions. Despite the efforts to register ownership of customary lands, rural populations largely resisted these initiatives. As late as 1955, the colonial government tried to register "collective" rights to land, but this, too, failed. To this day, rural populations express strong opposition to land titling programs.

During the socialist fervor of the independence period in Senegal, the government of Prime Minister Mamadou Dia enacted the 1964 Loi Relative au Domaine National. The legislation introduced the legal concept of "national domain." In effect, the state nationalized most of the land in Senegal, except for those lands privately owned and titled at the time of the passage of the law. The role of the state, as embodied in the concept of national domain, is that the state is to manage responsibly the land for the public good while granting use rights to those who employ land in a productive way.

The Senegalese government promulgated the Loi Relative au Domaine National for two reasons: to standardize the land-allocation system of the country, and to create an economic environment conducive to agricultural exports. Once again, the state attempted to devise a unified tenure system. Contrary to the aborted attempts in the late 1950s to codify the "customary" land tenure regimes of Senegal’s different ethnic groups, the 1964 law abolished traditional tenure regimes. Land duly registered during the colonial period (roughly 2 percent of the land mass) was left in private hands. But in contrast to many other West African countries, the Senegalese innovation consisted of retroceding land-allocation prerogatives to elected representatives of administrative districts.

The dream of the socialist reformers was to create a more participatory and democratic land allocation system. The writers of the Loi Relative au Domaine National were convinced that the traditional forms of land acquisition and transfer were inherently unjust. Within the densely populated Peanut Basin, for instance, the Wolof and the Serer nobility were both demanding high rents to cultivate land while also keeping large tracts out of production. The intention of the law was thus to break traditional institutional structures governing land allocation and provide democratically elected rural representatives the powers to allocate land to those individuals and groups capable of fully developing (mettre en valeur) agricultural lands (Niang 1982).

The 1972 Loi Relative aux Communautés Rurales set up the institutional structure of the rural community councils and defined the attributes of the members (conseils ruraux). Village representatives, elected to five-year terms on political party slates, can allocate land based on the condition that it is exploited in an economically productive fashion (mise en valeur) in conformity with national and local development criteria. If land is used in a manner deemed nonproductive by the rural community council, it can be retroceded to the council and reallocated to other users. Officially, all land transactions, such as the borrowing and transfer of fields from one farmer to another, must pass through the rural community council. All transactions are to be kept in a land register and allocated lands are to be surveyed and demarcated.

The Loi Relative aux Communautés Rurales explicitly promotes a local-level resource management planning process. The law vests in 318 rural councils the responsibility to allocate land to individuals and groups residing in the administrative district "as a function of the beneficiaries to assure, either directly or with the aid of their family, the development of their lands according to a program established by the council." The community council determines the minimal conditions for productive development by preparing local development plans. Much legal ambiguity, nevertheless, surrounded the concept of mise en valeur (Traoré 1992). Nowhere in the legislation is the term explicitly defined. In an attempt to rectify this uncertainty, Decree no. 80–1051 of 14 October 1980 gives the préfet the authority to define, if necessary, the minimal conditions of mise en valeur as a function of the economic and ecological specificity of the district. This provision could be used by the authorities to require farmers to adopt certain sustainable agricultural technologies as a condition of acquiring and using land, though the administration has not yet invoked this option—and it is not clear how soundly it would be used, if it were so employed.

Both the Loi Relative au Domaine National and the Loi Relative aux Communautés Rurales grant rural community councils the right to allocate land, plan local development activities, employ as much as 75 percent of the rural tax for these development projects, and resolve land disputes. Several provisions vest in the community councils the power to express resource use preferences. One of these is that the "community council determines all rights of usage in the interior of its territory" and that the "rural council expresses its wishes on all regulatory measures that it judges useful to apply within its territory in order to obtain a judicious exploitation of resources and an effective protection of agrarian resources of all kinds…" (Journal Officiel 1972, p. 755). An amendment later passed by the National Assembly adds that "the rural councils deliberate everything that is within the jurisdiction granted by the laws and notably … the fight against fires and forest fires; the regime and the modalities of access to water points of all types; the creation and the installation of livestock paths within the interior of the territory of the rural community; planning for the exploitation of all forest gathering products and wood cutting." [FN 3]

Senegalese natural resource policy and legislation articulate an ideology of decentralization and local-level empowerment of resource user groups. For example, the 1984 national agricultural policy proposed that rural populations be granted an increased degree of responsibility in the development process and that the state should be no more than a catalyst for local initiatives (Sy 1988). Recent modifications of the Forest Code reinforce this approach in that, among other new provisions, the forest service can cede control over forests to "rural collectives" (that is, rural community councils, rural federations, or legally recognized economic interest groups) following the preparation of a forest management plan designed and approved by the forestry service itself. Similarly, legislation passed in the early 1980s gives pastoralist communities the opportunity to create pasture reserves. Reforms in the early 1990s much greater financial autonomy to the rural councils by allowing them to control the distribution of district-level tax revenues.

The policy of decentralized resource management so well articulated in the Loi Relative au Domaine National and the Loi Relative aux Communautés Rurales clashes with administrative practice. Even though the rural community councils possess the authority to craft local rules regulating the usage of natural resources, the administration (the sous-préfets and the préfets of the Ministry of Interior) may in fact veto any of their decisions. The law is clear on this point. The deliberations of the community council cannot be executed until they are approved by the appropriate supervision. This measure may be construed as a check placed on local communities by a government fearful that district level governance institutions would pass by-laws leading to the rapacious exploitation of the environment. In practice, however, the provisions grant the administration enormous powers to block local-level initiatives deemed contrary to state interests. Préfets have stymied initiatives by rural community councils to protect their resources against excessive exploitation by non-resident agricultural and commercial interests. While the council may appeal through legal grievance procedures the vetoes as an "arbitrary exercise of power," this appeal process is rarely invoked as it is legally complicated and time-consuming.