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

6.4 Recent legislation

The 1991 Lands Act, the Physical Planning and Control Act, the Land Acquisition and Compensation Act, and the Surveys Act were legislated by the House of Parliament in late 1990, signed by the president in 1991, and entered into law on 22 January 1992. Technical assistance in developing the legislation was provided by the Gambian-German (GTZ) Urban Development Planning Project. The acts were designed primarily to resolve the uncontrolled expansion of urban centers in The Gambia. The State Lands Act replaced the previous Land Act for urban areas, though the Land (Provinces) Act is still operative in rural parts of the country. The new State Lands Act provides mechanisms for replacing the customary land tenure arrangements and with a leasehold system administered by the state in "designated" areas. For the moment it applies only to Banjul and Kombo Saint Mary, but the government intends to extend the law to the entire Greater Banjul area as well as other growth centers.

The Physical Planning Act provides for the systematic preparation and approval of plans as well as control of developments in Greater Banjul and other growth points. Planning authorities are to spell out guidelines regarding the location of urban and rural settlements, traffic and transportation routes, resource utilization and economic activities, and preservation of national and environmental reserves. The Land Acquisition Act permits government acquisition of land for "public purposes," though this is conditioned upon payment of compensation. Land acquired under the act is to be designated as State Lands and administered under the provisions of the State Lands Act. This action would abrogate customary tenure arrangements and permit the establishment of leases. The Surveys Act sets up a board that grants licenses to qualified private surveyors. The intention of the act is to facilitate land registration.

The tendency to strengthen leasehold arrangements may have either negative or positive consequences, depending on how and where it is applied. The acts are likely to be particularly useful in and around urban areas where land has high economic value and is subject to intense speculation. The laws offer considerable latitude in designating other areas for leasehold as well. Whether this freedom of scope is in the interest of local populations depends entirely on how the law is implemented. The laws could be used to take away lands which communities consider to be "theirs" to benefit private interests or to establish parks or other national domains. This application could reduce communities’ tenure security and their interest in protecting other resources in their territory that are viewed as vulnerable to expropriation. On the other hand, these same laws could be used to secure the villages’ rights to land by authorizing community leases over commons.

The State Lands Act, which stipulates that 99-year leases can be granted in "designated areas" to those holding customary claim to land and to those borrowing it on short-term tenancy, risks major conflicts. It may generate enormous litigation due to the complexity of rights under customary tenure arrangements and is likely to discourage all forms of land lending, with serious consequences for women and other borrowers.

The tendency toward a more centralized planning role for the state also portends ambiguous results. The acts vest considerable planning authority in state institutions and individuals. Government technicians are given responsibility for charting the future of rural and urban populations in provisions calling for the creation of national and local development plans. These designs risk being highly top-down, for the law contains few mechanisms to question and, if necessary, rescind the decisions of the planners. This is a serious omission since there are no guarantees that the planning authorities will have adequate financial and technical support to prepare flexible and sophisticated plans that deal fittingly with the diversity and complexity of local conditions. The National Natural Resource Policy Statement of February 1990 advocates decentralized and participatory approaches to resource management, but this orientation is largely lacking from the new legislation.

At the moment both rural populations and government administrators are confused about the implications of the laws on customary tenure arrangements. Whether justified or not, this uncertainty reduces peoples’ sense of tenure security.