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

7. Conclusions and recommendations

The Senegalese and Botswana institutions have common elements. Both have approached tenure reform through the creation of new public institutions, which have introduced democratic processes into local land administration. Both have sought not to generally replace customary law, but to change customary rules in specific priority areas. Both continue to deal with village-level traditional authorities in land matters, though they have formally deprived them of their traditional authority over land.

In the case of Senegal, this happened legally at the outset, though in practice that authority is progressively declining. In the case of Botswana, the law reduced the chiefs initially to ex-officio members of the Land Boards, and amendments later deleted those ex-officio posts. In either country, chiefs can, of course, serve as members or chairpersons, if elected, and this does occur in some cases. But in both cases the new institutions have continued working with the lower level of the traditional hierarchy, the village and ward chiefs, acting often as an appellate body for those dissatisfied with their dispositions. The collaboration with local traditional authorities has meant that these countries have not incurred the cost of a large land-administration bureaucracy. The Botswana program has been better financed than that of Senegal, as might be expected given the relative resources of the two countries. But both countries have treated land tenure reform as a high national priority and have committed major national (nondonor) funding to the reforms.

In both countries, in spite of the decentralized intention of the laws concerned, the state has maintained strong controls. In the case of Senegal, the sous-préfet must approve actions by the executive committee of the community. In Botswana, this control takes the form of the authority of the Minister to hear appeals from Land Boards, and the duty of the Land Boards to obey orders from the Minister—as they did, however reluctantly, in implementing TGLP. It is not difficult to imagine how these legal impediments to autonomy could be reduced or eliminated, and perhaps that will come as these systems mature. In the Botswana case, there has been considerable progress toward direct election of board members, albeit in a gradual fashion. These trends need to be encouraged, and removal of all control may be difficult. It is, after all, not simply a matter of law but of bureaucratic culture, which may, in Senegal, be particularly resistant to change.

One distinguishing factor between the two cases—the fact that the executive committees of the rural communities are elected on a party slate while party affiliation is not relevant in Botswana—has been relatively unimportant given the dominance of Senegalese politics by the ruling party. While the authors are inclined to think that party politics may not be helpful in such local institutions for land administration, this is an area which has not been given much attention and deserves further study.

A final parallel between Senegal and Botswana can be noted, one which will carry us into the discussion of Niger. In both Botswana and Senegal, the system of decentralized land administration is nationally uniform, as are the rules applied by the institutions. In the case of Botswana, this reflects the ethnic homogeneity of the country, but, in the case of Senegal, it was clearly the intention to create an unified national system of land tenure. Niger breaks with this pattern, enacting the Rural Code as a "framework law," allowing the Commissions in the several regions to fill in the detail, not all in the same way. This is what will make the ongoing Rural Code process worth following. Tanzania’s Presidential Commission report similarly would allow village custom, different in different parts of the country, to govern allocation of village land. It is important because it would create the new institution at village level; in the Senegalese and Botswana cases, the new institutions are well above village level.

The case of The Gambia rounds out the discussion. There the community-based system shows considerable vitality, but is under pressure because of growing demands for land from urban centers and other outside sources. How are such demands to be mediated? In The Gambia, there is no institutional answer, no organization in which local people have a direct say, whose responsibility encompasses both land held under community-based tenure and land held under western tenures. The Botswana Land Boards appear to have something to offer in this context: they handle both land under customary tenure and land under western tenure forms such as freehold and leasehold. Indeed, since they allocatee land in both customary and western tenures, depending upon the use of the land, they are the gatekeepers that allow land to move from one legal category to the other. Since the Land Boards began to function twenty-five years ago, legal reforms have made leasehold from the Boards, which was originally only for commercial and industrial plots, available for commercial ranches and residential plots with houses in major villages.

In all these cases, it should be noted, little is accomplished by way of increasing women’s rights and access to land. All these systems rely to a significant extent upon customary rules and institutions. It is difficult to plan for extensive revision of custom under them, though it may be possible to achieve modest gains. Those gains may in the end be comparable to those which would actually be achieved under more radical policies. The Tanzanian Commission on Land Matters seems to point toward some minimum, achieveable targets: the requirement that women who are not part of a man’s household receive land in their own right, and protection for wives against alienation of the family’s land by the husband.

What constitutes a sound approach to these complex issues? For country land managers, donors, and NGOs implementing programs on the land, we recommend:

1. recognition that for the indefinite future, most countries will be working with dual land tenure systems, one involving tenures such as freehold and leasehold in urban and peri-urban areas, the other based upon customary norms of community-based tenure;
2. support for upgrading land tenure and administration under both systems, resisting commitments of resources exclusively for work with the urban and peri-urban problems, and seeking clarity in issues of the interface between the two systems and interactions between them; and
3. encouragement and support of initiatives such as those described above through pilots or broader programs, with donor support for such efforts through funding for studies to design and evaluate such systems, training of staff, and one-time establishment costs of such systems.
4. Within the rural sector, it is critical to:

• continue to seek means by which local people can increasingly participate in selection of the management of the institutions, and greater internal democracy within the new institutions can be promoted;
• seek clear recognition by national law of customary rules as the residual land law for rural land, except where displaced by specific legislative provisions, accepting that uniformity in land tenure nationally is not an urgent objective and that acceptance of diversity can enhance the stability of a country more readily than overambitious attempts to enforce uniformity;
• seek modalities that are effective and mutually advantageous for collaboration between new institutions and traditional authorities, especially those at local level, in the interest of an efficient and economical land administration system;
• seek to identify frankly elements in the community-based systems that contravene important national, sometimes constitutional, policies, such as discrimination against women in access to land, and develop strategies for addressing these issues through legislation or in other manners;
• refine criteria and processes by which land can, as necessary, be shifted to more formal tenure arrangements and outsiders accommodated in the interest of development, ensuring local control over that process and increasing local control of the more formal system as well; e) target very specific, attainable objectives in acheiving greater access to land for women, including the right to be allocated land as household head and a right to block alienation of the household’s land by the husband; and
• seek innovative approaches to dispute resolution, in which resolutions reflect local norms concerning land and emphasize mediation rather than strict rule enforcement.