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

1.2. Access to resources and transfer of resources

Table 1 in the appendix gives, on the basis of 15 selected West African countries, an impression of the enormous variety of local mechanisms for maintaining access to landed resources; but it also allows a reduction down to a few central basic types. Numerous case studies underline that these basic rights of access and transfer extend themselves regionally over very specific natural resources such as fertile flood lands, water points, high quality pasture, sections of rivers rich in fish, etc. (Hesseling/Ba 1993:30)

Clearing of land, first cultivation

Laying out fields or digging wells establishes ownership of resources (e.g. Benin, Chad, Gambia, Sierra Leone), as long as no competing or overlapping claims are made by another group. Generally it is about common property of a founding family or lineage; the rights can be bequeathed, they are temporarily transferable to non-members, however not disposable and alienable. Founding families enjoy a priority over rights compared with groups which settle later (Hesseling/Ba 1993:30). Ownership manifests itself in the visible results of the work effort, such as clearing of land, planting trees and/or sinking a well.

Allocation of land

Allocation of land is normally carried out by the local land tenure authority. A Differentiation must be made between the following:

a) The allocation of land from the common property pool of a group to members, in other words, the distribution of land portions to a family in the course of its life cycle (examples in almost all of the presented countries). Once land (including fallow land) has been distributed to and used by a group member, it can be bequeathed. Land which is no longer required for productive use returns to the common reserve. The lineage structure determines thereby the precise distribution of the patrimony between these families (Coulibaly 1991:59).

b) Allocation of land to non-members of owner groups. These are of a more provisional nature, once allocated land may not in principle be transferred or bequeathed to a third party. In the past, outsiders often overcame their guest status through marriage into an old family or through residence over many generations and have become absorbed into the group. Thus they became owners of their land, and thus also have rights to rent, lease and bequeath it (Lawry 1989a:11).

Loan

Owners give the right of use over land to an individual or a group on a time basis without a fixed or quantitively meaningful service in return. The borrower enjoys a relatively large freedom of choice in reference to the management of resources (Crowley 1991:13). However, two central limitations are valid (Esser-Winkler/Sedogo 1991):

1. It is forbidden to invest in the resources in such a way that their character is changed so that a claim to ownership could be established, such as planting trees, the construction of a house or well, the setting out of fish ponds. The interdiction of tree planting is currently seen as the central failure of autochthonous land tenure in maintaining and protecting natural resources.

2. The lender frequently retains the right to take land back unannounced. This is seen as a hindrance to many investments which increase productivity or maintain natural resources.

Except in cases where a loan has already existed over many generations and can be bequeathed (see above), nowadays the loaning of resources rarely leads to a long lasting claim to property, since owners make conditions more and more precise and limiting.

Lease/tenancy

In the case of leasing, the lessee/tenant, acquires the right of use of a resource in exchange for a regular payment of money or goods or amount of work, which is fixed at the outset. In favourable cases the period of the lease is fixed in advance, thus allowing the tenant a clear planning horizon for investment (Crowley 1991:14). The degree of autonomy with regard to cropping pattern, land use and management decisions is dependent upon the form of the lease and the agreed conditions. The bounds between loaning and tenancy are fluid if the services in return are not yet fixed, but if they already suppose a meaningful share of the returns or a sum of money.

In hierarchical societies with large differences in land ownership tenancy relations between persons or groups with varying social status have going way back into history, as in Mali and Senegal (Coulibaly 1991:11, Crowley 1991:14). In addition, the spread of share-cropping was relieved through Islam, the repercussions of which upon investment behaviour and resource protection are controversially discussed in the "principal-agent-approach" (Otsuka/Hayami 1988). The positions are reflected in Mali: share-cropping systems in the meantime are considered too risky by landlords because of their traditionally long duration of contract, since tenants claim the land and begin to invest in it by planting trees. Tenancy relations are therefore no longer extended or tenants must move to poorer land. On the other side, landlords fear going to court since share-cropping is forbidden by State law and tenants can be adjudicated the entire harvest in a trial (Coulibaly 1991:19, Crowley 1991:14)). Uncertain and imprecisely defined property rights negatively influence resource preservation.

Mortgage

Nowadays, arable land is mortgaged more than once because of individual liquidity problems. Property rights are transferred to the money lender. Within the framework of valid local norms and rules he has unlimited rights over the land (Crowley 1991:13). Frequently, however, with one exception: the right of possession over trees on the land and the fruit from them remain with the debtor. This underlines the key character of the trees. The rights of use over the land become bequeathable for the money lender. If the money is not repaid the resource in question becomes undeniably the property of the creditor. Mortgaging of landed property is becoming more and more the pre-stage for the permanent transfer of resources, also in Southern Benin.

Bequeathing

Bequeathing within the lineage or extended family is the most frequent form of transfer of natural resources in the course of time (see Table 1 in the annex). In most cases this ensues in the patrilinear, singularly male line. The rules of distribution of an inheritance are dependent on the number of women and their sons. In the application of Islamic law, the women are theoretically entitled to a defined share, but which in fact they usually (have to) waive.

Gift

This normally occurs as an anticipated inheritance within the life time of the person leaving an inheritance, for example when a grown son marries and requires more land (Coulibaly 1991). Or it occurs as a gesture from a land owner to a relative or a subordinate to whom he feels obligated (particularly in Islamic circles of law). The prerequisite for such gifts is more and more a very close family bonding; its significance is receding.

Autochthonous land tenure regulations are thus strongly differentiated. They establish outwardly exclusive and clearly defined property rights with respect to non-group members. They make possible within the inner relationship of group members a variety of individual or family use patterns as well as the transfer between individuals and between generations. They offer legal security and also guarantee to realise the yields of investment in the future and thus to pursue a sustainable and effective use of resources.

Their core is based in group-internal incentives for cooperation and the power of sanction the group has against deviant behaviour (Bromley/Cernea 1989, Hartje 1993, Runge 1986). With that purchase and sale are incompatible, since owner groups can no longer press conformist behaviour upon purchasers or outside groups who are neither economically nor socially dependent upon the group. Purchase endangers the protection of resources of a village patrimony.