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

3.2 Changing needs and growing pressure on resources

Customary land tenure regimes remain remarkably strong in rural areas of Senegal despite the thirty-year presence of the two laws. In those areas where land and other natural resources are not highly valued for commercial agricultural purposes, traditional land tenure regimes continue to operate much as they have in the past. Customary land tenure regimes generally function unencumbered on marginal lands and farmers perceive that they possess relatively secure rights to the land. While customary rules are technically no longer in force, they continue to govern access to land, including inheritence and terms of access to land for women. Access to land for women continues to be for the most part through husbands and fathers.

Other changes are taking place. Recent field research shows that many communities are abandoning cash crop production of groundnuts and diversifying into other income-generating activities ranging from fruit tree production to employment in the cities and overseas. [FN 4] The value of particular types of natural resources is changing as a result of shifts in regional as well as household economies.

In many parts of the country, the rural populations are investing surplus financial resources into livestock production, however small the sums. The northern reaches of the peanut basin are evolving into pastoralist areas as field crop production becomes increasingly marginal. Struggles to define rights of access among various user groups to water and valuable pastures is thus becoming increasingly important while tenure arrangements to the once productive preferred sites for groundnut production wither away. In other parts of the country, land once highly valued for peanut production is declining but at the same time lands highly regarded for fruit tree orchards, irrigated agriculture, horticulture, or urban land speculation are rising rapidly in value. Land markets are emerging around these lands even though the sale of land is expressly forbidden by law. Tenure insecurity is high in those parts of the country where the value of land is rapidly rising.

Conflicts emerge in these transitional areas as various user groups attempt to place exclusive claims to the valued resources. Tenure insecurity in these areas is high because long-term residents find their land threatened by nonresident individuals and organizations. At this juncture, the legal influence of the Loi Relative au Domaine National becomes a dominant force. Institutions and individuals seeking to obtain highly valued lands manipulate the law to serve their particular objectives. External interests utilize the ambiguous legal concept of mise en valeur (productive development) to argue that land should be granted by the rural community council to entrepreneurs possessing the capital and the labor to promote economically viable commercial agriculture. Land held under customary ownership, but not legally recognized, has been granted by rural community councils to external entrepreneurial interests. Traditional landowners resist the expropriation of their land by various means.

Customary landownership is not recognized by law, but traditional landowners nevertheless utilize a repertoire of techniques to protect their customary holdings. Land of considerable economic value, like lowlands or areas near cities, is no longer lent out on a long-term basis. In addition, land owners are forbidding land borrowers, a significant portion of rural communities, from planting trees and making other permanent investments in soil and water conservation. As a result, land borrowers have no incentive to conserve the land. Customary landowners themselves utilize the concept of mise en valeur to protect traditional rights to land. Land is cleared and planted with little or no intention of harvesting crops, just to show that the land is in production. Fruit trees and hedges are planted in a haphazard fashion over large expanses of land simply to demonstrate full-time land occupation.

The failure successfully to adjudicate land disputes and devise new rules of resource utilization results in the outbreak of violence. Tenure pressure points exist in many parts of Senegal, simmering places of unresolved land disputes that suddenly erupt into explosive violence. The severe civil disturbances in the southwestern Casamance of the past few years are in part an expression by the native Diola that natural resources are being irrevocably lost to new migrants from northern Senegal, themselves fleeing from decades of drought and environmental degradation. The Senegal-Mauritania crisis of the early 1990s can in part be linked to the frustrations stemming from the expulsion by Senegal in April 1988 of the numerous Mauritanian camel herds grazing in the rich grasslands of the Ferlo. Tensions building up around the destruction of gardens and fields by livestock congregating around the shores of the Senegal River triggered cataclysmic violence and massive social dislocation between the peoples of Senegal and Mauritania.

The future political stability of Senegal depends to a large extent on the capacity of local level rural institutions to resolve conflicts over natural resources. Through the many and varied acts of dispute resolution, various levels of Senegalese civil society construct through both formal state institutions as well as through traditional institutions new rules for resource use and hence new tenure regimes. It is thus important to monitor the extent and dynamics of resource conflicts as this is an indicator of the functionality of both state and traditional tenure systems. Numerous recent case studies on the land tenure situation in Senegal clearly show that a wide range of disputes, sometimes violent, occur over property rights. For this reason, policymakers and donor institutions should confront squarely the causes and possible responses to the land tenure pressure points identified in this review.

Conclusions

The fundamental precepts of the Senegalese legal framework for land seem likely to remain intact. Radical changes in the legal structure would result in greater confusion and misapplication of the law. The Loi Relative au Domaine National can best be retained in its entirety, though measures should be taken to strengthen the role of the rural community council in the management of land and other natural resources. The Loi Relative aux Communautés Rurales should remain the cornerstone of community governance of natural resources, though various reforms should be instituted to strengthen the rule-making and rule-enforcement powers of the council.

But there is a need for government finally to devolve real resource management authority to local collectives. Devolution of resource management control implies granting community councils the legal powers to determine conditions for using resources by both residents and nonresidents of the community council. This implies searching for ways to increase the capacity of the rural community councils to make and enforce rules governing the use of land and other natural resources. For instance, the power of the sous-préfets and préfets to veto community council by-laws could be removed or restrained by streamlining the appeals process utilized by the community council to contest adverse decisions. Community councils might be granted greater powers to enforce decisions. Measures might be taken by government to encourage community councils to define, in locally appropriate terms, the concept of mise en valeur, a function clearly theirs within the bounds of the law but until now rarely encouraged by central government. Setting definitions for this legal concept, appropriate to the ecological and social context of the different agro-ecological regions of the country, could go a long ways towards providing security of tenure to rural populations.

The membership of the rural community councils rarely represents the broad spectrum of rural interests due to the structure of the electoral system. Rural community councils lack legitimacy in many cases because rural constituencies do not feel that the councils either make decisions of importance or represent well-diverse points of view. Lack of public support for the community councils is in part due to the legal stipulation that candidates be voted into office by party slate. This assures the dominance of a single party platform and minimizes the expression of dissenting points of view. Greater legitimacy might be engendered if the populace is allowed to vote for particular candidates, though on non-party lines.

Donor development agencies can work with government, academic, nongovernmental development organizations, and rural federations to promote dialogue on legislative changes affecting land. Donor support for workshops, conferences, and applied research can be effective mechanisms for levering participation by a multiplicity of stake holders in the debate on necessary reforms to the Loi Relative au Domaine National and the Loi Relative aux Communautés Rurales.