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

4. Niger: Managing conflict

4.1 Land policy in Niger

Over the last three decades environmental degradation, population pressure, and the drive of urban elite to acquire land and invest in commercial agriculture have put new pressures on rural systems of resource control. Furthermore, heightened demand for prime agricultural land has fueled the emergence of a land market that may induce farmers to relinquish their lands, as official recognition of ownership rights reduces traditional restrictions on land sales. In rural Niger, as elsewhere in Africa, the conjunction of these pressures has led to increasing conflicts between family members, farmers, farmers and herders, and traditional chiefs and their dependents (Lund 1993; Terraciano 1994; Ngaido 1993a, 1993b). To address these different issues, the Government of Niger has since 1986 undertaken the formulation of a major land law, the Rural Code.

Land policies in Niger from 1960 to 1987 were reform initiatives aimed at increasing tenure rights to tenants and use-right holders. The first reform attempt was made by the Hamani Diori regime (1960–1974) which abolished tithe payments, [FN 5] recognized customary ownership rights, [FN 6] suppressed chieftaincy lands (terres de chefferie) and granted ownership right to cultivators of these lands, [FN 7] and asserted state ownership over all land. These different reforms have important implications, since the control of local institutions over use-right holders was being challenged by the state. Under Nigerien customary systems, tithe was the proof of ownership. Hence, nonpayment of tithe meant no ownership. However, even if lifting tithe payments was equivalent to recognizing ownership rights, the provisions made by the law did not give exclusive rights to use-right holders because they were not allowed to sell, rent, or even divide it among heirs. [FN 8] The land was to remain always as undivided among family members.

A recognition of customary ownership rights of aristocratic families and chiefs (Mariko 1985; Olivier de Sardan 1984; Raulin 1961) confused the tenure situation and created two classes of landowners: those that could alienate the land and those who could not. The first class included traditional landowners, who with the 1961-30 Law can confirm their customary rights and enjoy all the benefits and privileges of private property. The second class was composed of former use-right holders, who were no longer subject to tithe payment but who could not engaged in any transaction nor divide the lands they owned, according to Law 62-7.

On 26 May 1961, the Diori regime promulgated Law 61-5, which fixes the northern limit for cultivation (Delehanty 1988). This division of Niger into two production zones, an agricultural zone that is under the control of canton chiefs and a pastoral zone that is control by pastoral groups. In the pastoral zone, no agriculture other than herders was allowed. This area was transformed, according to Law 61-6 of 27 May 1961, into a zone of modernisation pastorale. In the agricultural zone, the interaction between livestock and agricultural production was recognized. Grazing areas and corridors for livestock production and movements were delimited and managed according to Decree 59-180 of 28 October 1959. [FN 9]

Following the April 1974 coup d’état, the new president, Seyni Kountche, tried to resolve the ambiguous situation of tenant farmers and use-right holders by declaring "land to the tiller." [FN 10] This decision, in principle, granted ownership rights to tenants and use-right holders. However, the devolution of conflict resolution at the level of chiefs hindered the effectiveness of the "land to the tiller" policy (Ngaido 1993a). Consequently, since the demise of the military regime in 1990, tenant farmers and use-right holders who beneficed from the 1974 declaration are being challenged by former landowners and chiefs (Ngaido 1993a; Lund 1993). [FN 11] The lack of a legal document confirming the declaration weakens the claims of tenants and use-right holders to ownership.

On 18 June 1987, the military regime adopted Decree 87-077, which (1) regulates livestock movements and grazing in agricultural areas, and (2) defines the procedures for resolving conflicts between herders and farmers. Under the decree, pastoral lands continue to be under the control of canton chiefs. Herding tribal leaders and groups have only limited authority over the transformation of these lands. For example, the canton chiefs can allocate pastoral lands to farmers and the only possible action for leaders of herding groups is to file a complaint at the arrondissement level. This situation creates animosity between herders and farmers, which sometimes can lead to violent conflicts such as in the Toda incident in 1991 where 2 farmers and 102 herders were killed (Sahel Dimanche 1991).

The confusion brought by these land policies was a source of conflict between traditional owners and tenant farmers claiming ownership over the land they cultivate (Delehanty 1993; Ngaido 1993a, 1993b; Lund 1993). Conflicts over land use arise when the state favors "intervention programs of land reform aimed at changing the rules governing access to land and introducing new institutions of land administration" (Migot-Adholla and Bruce 1994, p. 2). The opposition between traditional institutions, which rely on accepted and internalized resource management mechanisms, and government institutions, which aim at promoting new resource management strategies and abolish traditional social relations of production, has led to a situation of open access (McLain 1992).

This situation of open access, where social control of land use is absent, has an especially deleterious effect on the attitude of rural populations towards resource management. Officially, traditional chiefs can grant land, but they can no longer levy tithe nor evict use-right holders. Hence, in many cases, local institutions have lost their means of enforcement, which used to be socially based (Ngaido 1994). This is not to say that today local institutions do not have the means to coerce delinquent people, but just that it becomes more difficult as the society at large perceives that the government is the sole collector in cases of default (McLain 1992).

From 1982 to 1992, the arrondissement of Kollo recorded 151 land use conflicts, among which 77 occurred at the family level, 48 at the chiefs’ level, and 26 between different users. From 1985 to 1993, the arrondissement of Boboye recorded 139 land use conflicts, among which 35 were at the level of the chiefs, 14 at the level of the family, 35 between resource users, and 55 between owners and tenants. From 1989 to 1993, the arrondissement of Mirriah recorded 116 land use conflicts, among which 66 were claims of ownership. In addition, conflicts between herders and farmers have increased in recent years following the expansion of agriculture, the shortage of rains in the northern pastures, and the Tuareg uprising in the pastoral zone. From 1989 to July 1993, the six arrondissements recorded 121 conflicts between herders and farmers, of which 92 were over encroachment in grazing areas and corridors, and 23 over crop damage.