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

1.4. Autochthonous land tenure in Benin

The vast majority of the population above all in rural parts of Benin follows the autochthonous institutional regulations when allocating and transferring resources. Thus the prevailing land tenure practices determine most decidedly the sustainable use of resources or, at worst, their degradation.

1.4.1. Principles for sustainable resource use

The sacred character of the earth as a place for deities and ancestors has in the past formed, also in Benin, a basis for the maintenance of community based resources on a local level. Particularly in Southern and Central Benin, the fear of magic-religious punishment of the deities has guarantied the limitation on particular crops, the respecting of crop rotation systems, the observance of fallow periods, the protection of special tree types etc.

The god 'Sakpata', the Earth Vodun of the Fon group, who was originally attributed with the responsibility for the outbreak and spread of small pocks (Degla 1994), is still today a strong force in the area of Savalou (Central Benin). The era of 'marxist-leninist' military rule was marked by the attempt to destroy important traditional instruments used for resource protection, like the massive combating of 'fetishism' and 'sorcery' and the felling of holy forests which were assigned to the Vodun religion (Dissou 1992, Gräbner 1992). This intensified the process by which resources once protected by religious institutions were turned over to free exploitation. State intervention has led to the degeneration of common property into a system of free unhindered access; just such a development was also typical for pasture land in the Sahel (Bromley 1991, Kirk 1993).

In the course of democratisation and with the securing of freedom of belief, mystical-religious institutions, practices and their initiated representatives are experiencing, in contrast to the past, a resurgence and strengthening of their position. Displeasure and fear, in the area of Savalou, of to arguing the advanced commercialisation of land tenure relationships (sale, leasing), which is no longer concealable, also explains itself by the still functional sanctions in cases of infringements against traditional rules and norms (illness, death of a person or an animal).

The principle of common property of resources has corresponded in the past with the compulsion only to be able to ensure survival as a group and not as an individual. The principle derived from that, that family heads are able to achieve property-like usufructuary rights merely to make impossible the acquisition and splitting up of the communities inheritance continue in the North and to a limited degree in the Centre of the country, where sales are increasing. Common ownership has long delayed the division and splitting up of agricultural land (Dissou 1992).

Sacred justification and the common ownership of land account for the trustee character of each form of land allocation and land use for following generations. In the case of low population concentrations and the corresponding abundance of land this did not remain alone the leading norm for cropping and animal husbandry. It was possible to secure this norm in many parts of the country up until after Independence. At present, the will of many village chiefs and earth priests to protect this principle can still strongly be felt. Their chances in the South especially, however, are slight. For in view of changed agro-political conditions (market and export production), new technology (animal traction), a population growth of 3.2% and in-migration, the corresponding traditional farming practices can hardly keep up soil fertility.

Social cohesion but as well social pressure on those who violate the rules in the past have made it impossible for the individual family-, lineage- or village chief to dispose of community land. In the meantime, the individual is very much in the position to be able to do this without fear in every case of social ostracism or the threat of illness or death. Such a step is all the easier when the "ice is broken" at village level in that traditional local authorities have already sold plots of land for the most part to outsiders to the area.

Common ownership has also prevented in the past the accumulation of land beyond a level which can be managed by family workers and thus the possibility of exercising power through landed property. Unequal access to vital resources within kinship groups and the overuse of the soil by social strata with little access to land has long been delayed. But reality in Southern Benin shows that the accumulation of land and the concentration of ownership has become dominant in the meantime.

With the progressive softening up of the ban on land sales, groups of outsiders can now acquire property through purchase. Whoever tries to get usufructuary rights to land through the autochthonous institutions generally discovers increasing limitations with reference to the allowed ways of utilization and the investment in resource maintaining measures. The fear of losing land through the claims of 'strangers' can above all be seen in the strict supervision of the interdiction to plant permanent crops such as coffee and above all the planting of trees.

Apart from egalitarian ethnic groups, for example the Somba in the north, all ethnics belonging to the Fon group, as well as the Bariba, have hierarchical social structures which dominate land tenure institutions and their authorities. At the base are the closer kinship groups like the extended families and lineages, over that on several levels the local chiefs and at the head, the 'king' - he is also the superior land allocation authority and channel of appeal, but he is not the owner of the land of the community (Crinot 199_:4). Because of his far reaching influence, sanctions are highly effective against nonconformist exploitation practices of common resources: from social isolation through the revocation of reciprocity or the assistance in emergency cases to ostracism and the removal of land.

Actually, however, the effectiveness of these sanctions which directly serve resource maintenance is strongly curtailed. On the one hand through the ability, protected by state rights, to accumulate individually land, on the other hand the ability to be able to escape from the influence of kinship groups through migration to cities (Elwert 1983:105). The more strongly distinct the traditional ruling structure is (as with the Mahi in comparison to the Bariba tribe), the more likely it is that conflicts and court cases will be dealt with and solved internally. One only bothers with state institutions like the Gendarmerie and the District Administration in land tenure disputes between autochthonous over field borders or between founding families and newcomers over tree planting when various customary legal procedures have been passed through. Marginalising these structures, as it happened under the different military regimes, means inversely that the population loses more and more strongly its forum at a local level, its ability to pursue decisions with regard to resource management (Gräbner 1992). Thus the chance of internal control of dealings and decisions by their own authorities becomes weakened.

1.4.2. Regional and socio-cultural differences three case studies

Three case studies in rural Benin show on the one hand regionally specific peculiarities in the practice of land tenure; on the other hand they make clear the similarities between central institutions in regulating resource exploitation and current changes (for choice of location, see figure 1, page 5).

The location in Northern Benin illuminates land tenure and resource use through the spreading out of tracts of land for agricultural use as well as the relationship between farming and transhumant animal husbandry; the location in the Centre of the country shows the effect of municipal growth on the surrounding countryside as well as on the transition from autochthonous land tenure to a market for land and new forms of utilization. Villages in Southern Benin show clearly the problem of uncertain property rights and the destruction of resources as well as the conflicts between state rights and autochthonous institutions. In each case the results will be compared with other published case studies in comparable locations in order to make their categorisation easier.

In all of the research areas there are similarities between central institutionalised rules for land tenure such as bequeathing, allocation of land, loan and also tenacy with reference to the property rights which they establish, the basic limitations and obligations and and the local authorities through which they are conveyed. Their relative significance changes from the north to the south of the country (see Table 2 in the appendix).

Population growth, in-migration from over-populated regions, altered farming techniques and mobile animal husbandry all strongly influence the change in the relative significance of the different rules about access to natural resources.The particularly conspicuous differentiation in the access and the transfer rules in the South is accompanied by changes in the social relationships between the involved actors, such as landowners, land users and the landless.

Individual exclusive property rights through purchase overlay and suppress here more and more common ownership. Also within customary patterns of bequeathing of land, a tendency towards sharing an inheritance and splitting up land can clearly be gauged. Rights of utilization in the Centre of the country are connected with increasing restrictions (the interdiction on the planting of trees, unlimited right of land recall). Cash and share tenancy also appear on the plan.

Northern Benin: Banikoara and Karimama

Here we are dealing with a savanna region with a precipitation period from June to October and an average precipitation of around 900 mm. It is in the transitional area going into the Sahel. The population density in the Banikoara District at 12 inhabitants/km2 is relatively slight, but it fits in with the province's average of 14 inhabitants/km2. Cotton production and animal traction have experienced a rapid expansion since the 60s. The area is in a contact zone between agriculturalists (Bariba) and transhumant Peulh.

Superficially seen, the common ownership of kinship groups still dominates where landed resources are concerned. It is the traditional local authorities (family and lineage chiefs) who control allocation, transfer and conflict arbitration. Land is bequeathed within the founding families of the villages, either as undivided inheritance, or as a divided inheritance dependent upon the number of wives and sons of the deceased. Old-established families which not only belong to a founding lineage receive a share of the village land reserves from the land priest of village chief. The land cannot be reclaimed and can be bequeathed.

Recent newcomers, on the other hand, have great difficulty in getting land near to the village; if the land is available at all, it is granted to them as a loan and only under restrictive conditions:

• The lender expects a 'voluntary' crop share as a gesture of thanks, which from its size is more than just a present, or unpaid work is expected. The boundary between inherited forms of loaning and share-cropping or occupational tenancy is achieved. Thus questions of the willingness to invest into resource restoring measures come to the fore.

• In Karimara the change in land tenure institutions from loans to share-cropping and cash tenancy with clearly fixed components has been completed.

• Owners retain the right of repossession at any time. Thus far the demand for such returns has been seldom, but they already contain the core of legal insecurity.

• A central hindrance to sustainable management of natural resources is the strict interdiction on the planting of trees on loaned land. Out of fear of ownership claims on land by the person making the loan, founded in the possession of newly planted trees, this ban is suspiciously supervised.

Until the recent past, the Bariba land owners still permitted the planting of trees under the explicit condition that their possession would fall to the land owner, while the rights of the fruit harvest remained with the planter. The complexity and local differentiation of the rights of ownership and use in the case of trees and their yields underline their key role for property rights also in Benin (Fahrenhorst/Altan 1992, Fortman/Bruce 1988). For the neighbouring Dendi at Karimama the land owner is obligated to pay the borrower a compensation for planted trees if he demands the return of the land, which emphatically makes clear the claim to ownership by the borrower.

The combined introduction of cotton and animal traction since the 1960s has brought with it a considerable enlargement of cultivated land per household. In reaction to the scarcity of land close to villages, there is a switch to so-called 'fermes', freshly cleared tracts of land far away from the village (up to 40 km). The identical regulations come quickly into force here.

In the contact zones between agriculturalists and livestock keepers, property rights reach out to the use of pastures and of water sources. Peulh who have become settled are treated like in-migrated non-members of a founding lineage: in the past they received farming tracts of arable land through allocation, which have in the meantime become their property. Whoever settles here nowadays gets access to the land only through loans.

Fallow and abandoned land outside the villages are looked upon by seasonal Peulh as pasture land with free access. Grazing on harvested fields and the use of crop residues is dependent upon the agreement of the owners of the fields. The familiar institutional regulations between the different actors, as hand hoe cultivators, peasants with draught animals and/or small herds of cattle, settled as well as transhumant livestock owners have forfeited more and more their function in the recent past, the mechanisms for solving conflicts on a local level, as in the Sahel, are inadequate.

Central Benin: the region of Savalou/Dani

The region is characterised by tree and shrub savannas with two not very marked rainy periods, which from time to time overlap each other. The precipitation amounts to about 1000 mm. The population density is 23 inhabitants/km2. Both out-migration and immigration are becoming more significant. The average farm size varies between 1.5 and 3 ha; the land is cultivated with hand hoe-farming. Yams, mais and manioc are dominant. The influence of the rapidly growing town of Savalou on the surrounding area is great.

The access to land within the autochthonous population is no different from the way it is in Banikoara at first glance: bequeathing within the village-founding families, allocation of land and loaning are the dominant institutions.

However, land is being bequeathed more and more to smaller social units like nuclear families. More and more the functions of distribution and control of land are going from groups of decision makers over to the individual household head. In this respect it is also justified to talk about the advancing individualisation of property rights in the autochthonous system without written fixed legal titles.

Along with the Mahi, a hierarchically structured ethnic group is dominant in the Savalou region. The influence of the royal family as the central authority for resource allocation is recognisable. The king remains the last channel of appeal for the allocation and distribution of land and thus also exercises regional influence. He and his board of advisers are well informed about land transfers and must be given priority in consultation where significant transactions and disputes occur.

Here as well the lending of land is strictly bound to the interdiction on planting trees. While the lending of land is still an expression of collective ownership of the group and the inalienability of vital resources, the tacit sale of tracts of land already takes place, less between long established families as between local families and outsiders. These are primarily town-dwellers from the coastal region and is concerned with business men or higher civil servants, both active and retired who invest in land. Currently the transformation from institutions of customary law to anonymous, individual land markets takes place, through purchasing as well as through a strengthened formalising of owner-tenant-relationships is being completed.

With this new form of transaction, the function of the local land tenure authorities has fundamentally changed: the land priest, the village chief or the 'king' are rather if need be, witnesses - if they themselves are not party to the contract as vendors of community land. The legitimacy of hand-written contracts is confirmed by the local administration, be it the elected village chief (Délégué), the mayor of a municipality or the District Commissioner (Sous-Préfet). This safeguarding by the administration is not legitimated by any legal basis.

The local population is perfectly aware that purchase brings an unlimited individual private property right over resources, be it for diversified agriculture, for plantations, a cattle farm or fallow land as insurance for old age. In face of the experiences in the coastal region, acts of purchase in the transitional phase of until the establishment of a well functioning land market are very alertly tracked by the local population. In spectacular individual cases, as in that of a former Minister, the local population prevented the legitimating of the gradual buying up of about 600 ha of land for the setting-up of an cattle breeding farm through their advisory committee at the District level.

Southern Benin: Sékou/Atotinga

The villages lie in a wet savanna region with two rainy periods (from March to July and from September to December). The rainfall is 1100-1200 mm, the population density is very high at 100-140 inhabitants/km2.

Next to already known forms of access to resources, the purchase of land is already taking on a dominant role in the South, be it between autochthonous families or through traders, civil servants or other urban groups. A land market has already been established. These transfers are spoken about openly in the villages. Purchase and sale are a part of everyday reality. The prices differ according to the quality of the land, the site of the plots, and also according to how closely the vendor and buyer are related, as well as the current financial situation of the vendor. There is a differentiation between tracts with or without stocks of palm trees, and the age of these trees. Land sales are the last means in situations of acute money shortages (deaths, marriages, illness, ceremonies). In times of economic crisis, as at the beginning of the 80s, such cases increased in number.

The regulations of inheritance are comparable to these in the rest of the country, but a special attention is given to the first born, who has already furnished extensive work services for the parents and can lay claim to an over-proportional share of the inheritance. Land market and purchase also enable women to get access to land and then to be able to bequeath it specifically to women.

The mortgaging of land in financial emergencies is gaining significance and is being deliberately encouraged by moneylenders. The lender can even lease the land further or sub-mortgage it (MDR/FAO 1992). Often, the failure to pay back credit is the first step for generations to be perpetually dependent and to lose land in the long term. To loan the land is strictly conditioned: it is limited to the support of poor or landless relatives who are often allotted not very fertile plots, or tracts which are intended to lie fallow. The strict ban on tree planting is also in force here. Loans help to overcome short-term emergencies, but at the same time they endanger more and more the maintenance of soil fertility and the ability of the land to regenerate itself.

Tenancy conditions have also become more restrictive. Cash tenancy (Zounda) is very widespread. The duration is already set at a maximum of five years for fear that a tenant will make ownership claims. This and the ban on tree plantation have a directly negative effect on the willingness of the tenants to make investments. Share-cropping is gaining popularity with immigrants and the landless, though the concrete conditions of leasing vary strongly. The duration of the lease is often undefined and the rights over the land or not bequeathable (MDR/FAO 1992). Altogether uncertainty concerning conditions of utilization (type of crops permitted, duration of leases and loans, security of yield in the face of marginal lands, the output-sharing rate in the case of share-cropping) is growing. The effect is being reinforced by the rapidly growing demand for land.

Autochthonous institutions in the South have forfeited a good part of their influence over land tenure in spite of the presence of the Vodun religion, the perceptible holding together of families and the hierarchical ethnic structures. In the meantime they are faced with the institution of a market with anonymous resource transfers, which are legitimated by the local State administration. In favourable cases, land is transferred between relatives or villagers where the transfer is still exposed to a certain social control; in unfavourable cases, the land becomes the object of speculation or investment in real estates without priorities and a clear planning for sustainable agricultural use.