Michael Kirk (1996):
The Role of Land Tenure and Property Rights in Sustainable Resource Use: The Case of Benin

1. The current significance of autochthonous land tenure

1.1. Basic principles and institutions

The access to resources as well as the rights to their use and transfer are established in institutions. The conditions for the allocation of rights changes in the course of time in autochthonous systems. They are the result of negotiations (e.g. between family groups with different interests), and also the result of conflicts (between agriculturalists and animal keepers), of new conditions through the spread of new technologies and the inclusion of new actors such as the State, or of projects which enter a claim to resources valid. Accordingly, autochthonous institutions are flexible and dynamic.

Being member of a basic social unit determines people's access to essential resources such as arable land, pasture and water in all the West African countries taken into account here. As the primary institutions dealing locally they control the distribution, the pattern of use, the resource management and the transfer within the groups which go to make up such a unit. Groups are defined by type (kinship or residential groups), size (extended family, lineage, village) and internal structure (hierarchical, egalitarian); in common they have clear criteria for membership, distinction from other groups, a minimum amount of common interest and interaction between its members on the basis of common cultural norms and values. But also a system of authority as well as proven processes and rules for making decisions and above all incentive and sanction mechanisms with reference to claims to various resources (Bromley/Cernea 1989:15).

Common property, the group possession of resources is dominant. It includes the region over which a community, -agricultural or pastoral-, has property rights, and which it both manages and makes use of for economic as well as social, political and cultural reasons. In view of the great socio-cultural and agro-ecological differentiation in West Africa, this comprises the village region of sedentary agriculturalists, the farm and grazing land of agropastoralists in the Sahel and in the North of the coastal countries, the grazing lands and wells only temporarily used by mobile livestock owners, as well as lakes, rivers and lagoons for which fishermen have property rights (Gajo 1993:8, Goumandakoye/Bado 1991:13f., Rochette 1993:2). Land tenure institutions are in the position to keep out non-group members, -'strangers'- when the use of resources and the related decision-making processes are concerned. Amongst themselves, group members have rights and duties with respect to the use of resources (Bromley/Cernea 1989). Where there is strong population growth and migration, specific spheres of influences overlap more and more, conflicts, negotiations and arbitration requirements increase and make greater demands on the abilities of these institutions.

Groups of common descent (lineages, clans) have priority over property rights in natural resources and through their authority system determine the access of both group members and non-members to arable and grazing land, forest and water. Membership to a kinship group decides the type, extent and strength of rights in its area of influence. In the majority of ethnic groups (see Table 1 in the annex), patrilinear decendance alone justifies the control over land. In settlements where immigrant groups dominate in numbers, the founding lineage also continues to control the allocation of resources and the mechanisms for solving conflicts and the sanctioning of misdemeanours (Crowley 1991:7). The combining of resource rights and kinship is central to the prevailing moulding of land tenure regimes as an expression of social relationships (Tobisson 1992:11).

Authority is based on seniority: there are still rustic elders of the kinship groups who take upon themselves the allocation of common land to both group members and non-members. The functions of land priests (chef de terre) and village chiefs can be carried out in a personal union, however they are often separated, mostly as the result of the appointment of villages chiefs by the state authorities.

A magical and sacred importance is attached to the earth and its associated resources, such as forests: it is the home of deities and ancestors. This has three consequences:

1.) With respect to non-group members there exists an exclusive property right covering natural resources. With respect to dead, and in particular to unborn future generations there is only a temporary usufructuary right of a perpetual resource stock.

2.) The local authorities administrate as trustees the resources entrusted to them for the living as well as for future generations of users.

3.) Land is not alienable. Long-term surrender or sale to an outsider of the group is against all ideals as it can mean the loss of the material life basis of the living and future generations.

'Strangers' are generally allotted property rights for resources in the form of conditional usufructuary rights. The procedure here is widely standardised (presentation to the land priest, guarantors inside the ranks of the owner group, symbolic service in return). With respect to the autochthonous population, the rights in respect to type and length of use are more restricted (see 1.1.2.).

It is scarcely possible for women in the majority of (patrilinearly structured) lineages to get access to land directly through the land priest. The allocation of plots occurs predominantly through the family of the husband. Frequently it is land of poorer quality, or in an unfavourable site. The rights expire automatically in the case of divorce or death of the husband. In Sahelian countries, Islam has opened - theoretically at least - an opportunity for them through the right of inheritance.

Obligations and bans explain themselves partially through their significance for the protection of natural resources (prohibition of clearing holy forests, maintenance of trees, entrance taboos). Sanctions in the case of breaking rules are clearly effective through social pressure (social ostracism, banishment), but also through threats to life (poisoning). Behaviour which conforms to the rules is only assured as long as the chiefs, land priests and councils of elders are in the position to be able to enforce such sanctions.