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

4.3 Rural Code, 1993

The latest effort of the Nigerien government, initiated in 1986 to alleviate problems plaguing rural areas and foster private investment in the land, is the 2 March 1993 Ordinance (93-015), Principes d’Orientation du Code Rural. The Ordinance provides a legal framework for the elaboration of a Rural Code. The Rural Code aims at providing tenure security to rural operators, organizing and managing rural areas, promoting better natural resources management and conservation practices, and helping to plan and manage country-wide uses of natural resources.

The proposed Rural Code recognizes that to meet these objectives previous mistakes must be avoided. Therefore, law-making should be pragmatic by recognizing customary rights and the possibility for chiefs to grant exclusive rights, drafting complementary texts [FN 17] that will clarify different provisions of the law, and promoting new mechanisms of resource management. The law is articulated around the creation of local land boards (Commissions foncières), which will register land rights, control land use, and help in conflict resolution.

The Rural Code process is accompanied by the creation of three structures, the National Rural Code Committee, the Secretariat Permanent of the Rural Code, and Tenure Commissions.

National Committee of the Rural Code and the Permanent Secretariat of the Rural Code were created by the 28 July 1989 Decree [FN 18] and were appended to the Prime Minister’s cabinet. It involved officials and technicians from the different ministries. Their roles as defined by the decree were:

• to reflect on existing rural management systems;
• to collect, analyze, and disseminate tenure information;
• to define access rules to land and natural resources;
• to clarify and counsel the different intervening structures (for example, donors, NGOs, and the like);
• to assist project and program decision making on allocation and management of natural resources;
• to develop legal texts and regulations to implement the Principes d’Orientation du Code Rural; and
• to popularize the program and make people aware of these texts and regulations.

To carry on these functions, the National Committee relies on the Permanent Secretariat of the Rural Code. The National Committee of the Rural Code was actively involved during the conception of the Principes d’Orientation du Code Rural and its dissemination throughout the country in December 1993. However, the Committee was not effective in controlling the actions of the Secretariat of the Rural Code. As a result, the activities of the Committee became a function of the needs of the Secretariat. During the August 1994 Evaluation-Workshop on the Rural Code process in Dosso, many committee members resented this situation and felt that they should play a greater role in control of the Rural Code process. Shortages of human and financial resources in the Secretariat have impeded the completion of the complementary texts and the implementation of pilot tenure commissions in the seven regions of the country.

The membership of the Tenure Commissions expanded the 1987 Commissions to include all technical services. [FN 19] Art. 119 of the Principes d’Orientation du Code Rural conferred on Tenure Commissions both a consultative function and a decision-making power. The consultative function requires, on risk of nullification, the opinion of the Tenure Commission for any activity related to (1) determining the contents of "mise en valeur" on arrondissement and common lands, and (2) elaborating rural concessions leading to the acquisition of property rights. [FN 20] The latter allows Tenure Commissions to recognize tenure rights and transform rural concessions to ownership rights. Furthermore, Tenure Commissions determine the strength of rights claimed by litigants and fixes the amount to be paid for eventual indemnity. In addition, Tenure Commissions are endowed with a general power to control development of arrondissement lands. They can transfer the use of this land to a third party if the Commission finds that the land is not developed. [FN 21]

The composition of these commissions, the roles assigned to them, and their location at the arrondissement level raised many concerns as to their appropriateness and effectiveness. The critics of Tenure Commissions urge the necessity of creating similar institutions at the village and canton levels (Loofboro 1993; Terraciano 1993). However, the core concern is the composition of Tenure Commissions. The members of Tenure Commissions who were members of the 1987 Commissions, resent the fact that they no longer have a power of conciliation. Their new role is reduced to helping by determining the strength of rights being claimed, but not conciliating. This is one of the major problems because, for example, the Tenure Commission of Mirriah still views itself as similar to the 1987 Commission, and still resolves conflicts. It is difficult for these technicians, who have been involved in conflict resolution for a long time, to find themselves reduced to simple providers of information.