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

2. Land/resource legislation and policy

2.1. Colonial continuity

In hindsight, one can see an astounding continuity of central ideas and legally fixed principles in basic aspects of rural land and forest legislation (at least, in French-speaking West-Africa).

The British colonial power recognised autochthonous rights early on. With its 'indirect rule' and 'native administration', it strengthened the position of the senior authorities (kings, paramount chiefs) and shied for a long time away from the registration of private ownership for white settlers as well as for Africans. This guide-line, often described as 'pragmatic', was, however, pursued with a reservation on ownership by the colonial State for all settled, unsettled and uncultivated land for which there was no land registry entry (Coquery-Vidrovitch 1982, Noronha 1988, Kirk 1992/93). The French Colonial State, led by the idea of 'assimilation' of the colonised people and a consistent land tenure doctrine (one right for all), denied the ownership rights of tribes, lineages or families (droits indigènes). The 'backwardness' of the local property rights systems was emphasised early on and served partially as an ideological justification for colonisation (Hesseling/Ba 1993:35). Accordingly, the idea of having to assert individual private ownership of land amongst the local population appeared again and again in the policy of legislation until independence, based on the French 'Code Civil' (Coquery-Vidrovitch 1982, Dissou 1992, Crinot 199_).

Judging various systems of ownership in their effects on the utilization of resource nowadays is made easier by the classification of some historical developments which clarify the continuity of the legal and political framework even today (CILSS 1988, Coquery-Vidrovitch 1982, Crinot 199_, Dissou 1992, MDR/FAO 1992):

• Since the beginning of the 20th century, entries into the land registry (French: immatriculation) alone has assured a recognised and legally usable right of ownership to land from the Colonial State. At the same time it was made plain to all levels of administration that local groups and their authorities could lay claim to usufructurary rights of land if need be, however not to common ownership of tribal land. In the face of the relative wealth of land, functioning autochthonous legal systems and an orientation on subsistence production, the colonial power thus hardly pursued the goal of raising legal security and the fostering of the willingness to make investments. In Benin, the land register present with the law No. 65-25 from 14th August 1965 is till today the only way of laying claim to a right of ownership of land recognised by all legal courts. The situation is comparable in other French-speaking countries.

• Also the awarding of agro-industrial concessions to companies and individuals was tied to land registry entries (Dissou 1992, Coulibaly 1991). These entries were not legally valid until exactly fixed measures of investments in the land could be furnished. Here already in the colonial period a connection between forms of ownership desired by the state and the form of utilization of natural resources was explicitly created.

• With various formal legal arguments, the colonial power established state ownership of all non-registered land. They all assume, intentionally or unknowingly, the following false premises regarding ownership conditions: a) that land goes to the colonial power after a chieftain or king is subjugated. Their function as trustees is not recognised; b) land falls to the State where there are no heirs. In fact, land goes back into the community pool; c) the principle of unused and abandoned land (Colibaly 1991, Crinot 199_). That ignores farming systems with long fallow periods and above all, mobile pastoral systems and established legal insecurity when peasants were suddenly supposed to prove their rights to land.

• As a result of resistance or ignorance of a local population towards land tenure reforms, the principle has no longer been used since the 1950s. Instead, autochthonous rights began to be at least partially recognised. A simplified fixation of usufructuary rights and also the transfer of land rights were tolerated without formal registration. Who ever wanted to register land officially even had to prove that no customary rights from a third side already existed to the land (Coquery-Vidrovitch 1982:75, Dissou 1992:14). This improvement of legal security, while not equal in value in comparison to land register entries in court, was formalised by law in Benin for the urban areas after Independence. One finds this again in rural regions in the case of land transfers countersigned by the administration.

• The basis of forest law still valid in many countries till very recent times had already been formed by a colonial law on the 4th July, 1935, in which as uppermost goal the protection of forests was defined and as it was the procedure of its classification. As well, it defined the function of forest administration and police and thus secures far reaching ban on exploitation for neighbours, which still today is the main hindrance for the setting up of a system of individual and common property rights, which secure sustainable forest usage.

Still valid fundamental regulations of property, which directly touch on resource exploitation, can thus be traced back to colonial law. State law shows astounding continuity here. The basic principle of State ownership of unregistered land has been adopted by many independent states, with the consequence of justification of entry for all interested users, and "strangers" as well with the consequence of the eroding of local resource protection or also the isolation of local users (in the case of state forests). If bans on entry, as in the case of state forests by forest agents, cannot by enforced, but rather got around, both things leads to a 'tragedy of the commons', to systems of open, unlimited access and to rapid overuse of resources (Bromley 1991, Kirk 1993). Community control and self regulation have become ineffective. Whoever is not quick enough to plunder resources must expect to be beaten to it by others.