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

2.2. Experiences from West African countries

2.2.1. Legislation and policy of the independent states

Apart from Mali, for which there exists a specific land law (code domanial), land tenure questions are, at least in the remaining Sahelian countries, set down in differing legal statutes and regulations (CILSS 1988).

For the large majority of countries, not only French-speaking ones, the principle of state power and state ownership of all land which is not entered in the land registry was adopted after Independence (see Table 3 in the annex) (CILSS 1988, Coulibaly 1991, Lawry 1989b, Riddell/Dickerman 1986). Only few countries, however, base this decision in formal legislative procedures and statutes as in Senegal, Burkina Faso and Togo; the majority empowered it merely by decree (Müller 1988). In this fundamental question, which gives the State the widest possible powers of intervention and the final power of decision over access to land and its exploitation, a remarkable continuity of colonial political ideals is still today dominant.

Appropriately one can also see an almost unbroken development in the system of allocation of various resources to the respective holders of property rights.

Natural resources are combined in the public domain of the State (domaine public de l'Etat), such as areas specially mentioned by law (national parks, protected forests), water resources and mineral resources as well as artificial real estate such as canals, railroad lines etc. Administration and usage are exclusively in States hands; violation by other actors is punished and they are bound to pay compensation.

The private domain of the State (domaine privé de l'Etat) is delineated very varyingly from country to country, and is not at all clearly defined (Niger, Mauretania, Senegal). For it is precisely here that the bounds between State ownership of resources and customary common or private ownership become blurred. This form of state ownership is often defined as a residual, namely resources which do not come under the public domain, which are not recognisable in the land register as private property and therefore 'freely accessible and abandoned' (CILSS 1988). It is this very construction ('terres vacantes et sans maître') which has been the object of fierce discussions since colonial times (the problem of fallow land in agriculture, pastures). Accordingly there exists decidedly the problem of insufficiently defined property rights over resources which became aggravated in the recent past in the face of growing scarcity of land and conflicts over property rights (Hartje 1993).

Countries like Senegal, Burkina Faso und Mali which have pursued the nationalisation of land by law, or rather passed a code of land regulations, work with construction of 'national domains' (domaine [foncier] national). In Senegal it is more comparable to the private domain of the State, in Mali an expanded private domain; in Burkina both areas are covered to which the State claims an exclusive and extensive property right (CILSS 1988, Coulibaly 1991, Esser-Winkler/Sedogo 1991, Müller 1988).

A legal recognition of autochthonous rights can therewith if need be indirectly derived, which aggravates legal insecurity in a case of dispute. In Chad and Mali it is assumed that unregistered land is seen legally as openly available and abandoned and as State land as long as the opposite cannot be proved. Agricultural activities using methods common in an area (fallow) would be such a counterproof; thus it is the key for secret recognition of traditional property systems, with the limitation of course, that any customary usage can only occur when the state announces no need for the land (CILSS 1988, Coulibaly 1991).

The assessment of more than 30 years of legislation and land tenure related policy in Mali for example makes clear basic inadequacies in other countries as well: the uniform inflexible land tenure policy of the state has weakened social cohesion at the village level as well as group solidarity. In crises during the last droughts the inadequacies of the present land tenure situation have become clear (Coulibaly 1991:19). 'Modern' state law principally secures urban groups, business men, and retired civil servants in acquiring land, since all regulations are narrowly limited to farm land or urban land for construction. Regulations covering water resources, forests and in particular pasture land have been systematically neglected. This is not surprising since it has already been shown that these extensive resource stocks can scarcely be effectively administered and protected with European inspired concepts of ownership.

Only four of the nine CILSS countries deal explicitly with water in their resource regulations. Here we are dealing exclusively with recent statutes which are a reaction to the rationing of water and to conflicts arising out of uncoordinated, anarchistic use of water (CILSS 1988:34, Coulibaly 1991). Generally water is a common good (it belongs to the public domain of the State). Rights for the use of wells, etc. have strict conditions: they are temporarily retractable; the interests of various actors are of first consideration; their participation in investments and fees for usage are scheduled. For surface water, customary regulations are referred to, including the special treatment of 'strangers'. Thus the newest legislation shows itself not in the position to be able to explicitly recognise common property as a possible model for resource preservation.

Hefty critique from the economic, sociological and political side has in the recent past been inflamed particularly by French inspired forest law. The 'forêts classées' and 'forêts protégées' are State property, part of the public domain and objects of a centralist, exclusive state control. Their extent was established by the principle of exclusion: all land, apart from cultivated land, or land which has been fallow less than five years, registered land, agglomerations, streets, etc. belong to this category (CILSS 1988:22). In the process of classification, people affected from these measures de jure have at least the right to have a say; once set up this classification, the repressive character predominates in forest reserves. The protection motive is dominant, as a result of which forest departments have been turned into paramilitary units, for example armed force is used against neighbouring groups, of course also against wood and charcoal traders as well as livestock owners, but they also succumb to bribery (CILSS 1988, Coulibaly 1991, Lawry 1989b). Only rarely is the significance of forests for local user groups defeated in a statute. There are first signs of this in Chad, Mali and Niger.

Pasture areas, difficult to administrate through central power because they are typically large in area and spread out, are subsumed for the most part under 'land' and are rarely given explicit consideration. Veterinary laws and regulations for the use of water sources and trails for herds are more administratively suitable as a lever for indirectly guiding pasture use. The private appropriation of pasture is seldom, on the other hand, clearly defined private property rights over water sources and wells in the Sahel are the rule (Kirk 1993).

Thus, the majority of countries works in unbroken continuity with an incompletely defined legal situation and thus with legal insecurity in the case of increasing resource rationing or state greed in land. Senegal and Burkina Faso as two exceptions have drawn clear positions without groups or individuals being more long-lastingly cut back in their current property rights over land than in the other countries.

Depending upon political orientation after Independence (capitalist-liberal, socialist) genuine alterations have been made in land tenure, which - independent of the economic system - have principally served the strengthening of State ownership of land. But inversely, nationalisation has brought very often the codifying of the 'African Principle' - the recognition of group rights - with it. In general, a fundamental turning away especially from French-colonial legal principles is not perceivable. These, however, have proved themselves to be disfunctional: when problems of legal security for resources in the face of increasing rationing grows in significance, the procedure of land registry is no start to a solution, since this time and cost intensive procedure plays a highly subordinate role in the rural sector (Crowley 1991:16).

2.2.2. Resource use and the preservation of the environment

Most countries pursued resource management or a resource policy mainly through land tenure policy, whereby the reform of colonial law was almost always aimed at concentrating the rights to resources in the hands of the State. These legal conditions for sustainable resource management in the Sahel countries are less encouraging:

• The state generally lays claim to former common resources and concentrates itself on the carrying out of national acts of law (e.g. forest law). In the face of bad institutional capacities, lacking logistics and misguiding models, it is rare if this does succeed.

• Local institutions which were central for the preservation of vital natural resources, receive no legal basis. Group-internal incentives for cooperation get weakened since the State removes from them the right to refuse the entry to strangers or to restrict it at least (Hartje 1993, Kirk 1993, Runge 1986). The social cohesion and the group solidarity as a basis for common action in times of crisis is endangered.

• First signs of a 'free for all' approach are spreading out: the free unlimited access to all citizens is becoming legal; the exclusion of outsiders by local users has no legal justification (Lawry 1989b).

• Legal uncertainty amongst this large mass of peasants and livestock owners is increasing. Investment in maintenance (replanting tree) is receding, limitations on utilization (length of fallow periods, time-limited grazing) are no longer taken notice of. The opportunity costs of a preemptory exploitation in the present, namely decreasing productivity or the complete destruction of resources in the future are less and less reckoned with by members of local user groups. For whoever does take notice can no longer be certain that this behaviour will be respected by others.

The "Tragedy of the Commons", much discussed and cursed because of its simplification (Hardin 1968, Bromley 1991) was often triggered off by a weak centralised state which had indeed claim to vital resources, but was not itself in the position, or was not prepared to be able to enforce it on the local population as well. A State which at the same time also excludes local institutions and authorities from resource management to creates a sphere free of law (Hesseling/Ba 1993:38).

From this we get learning processes which have an effect on resource management and spatial economics:

• In Senegal, the commercial use of agricultural and pasture land belonging to villages ('terroir') as a category of State land is explicitly marked, the pattern of use for this should be determined by village communities (communautés rurales).

• In Burkina Faso land use planning is not alone the prerogative of the state. NGOs also legally have a right to take part (CILSS 1988).

In spite of these modifications, the following is also valid: the deprivation of rights of local users and their inability to defend themselves against the unrestricted use of resources by individual members of a group or outsiders must be seen as the decisive effect of the land legislation of the past decade. The results of this are legal insecurity, overuse, and a weakening of the ability of land, pastures, water and forests to be able to regenerate themselves. The effects are as follows:

Urban areas of land: laws exist for zoning urban land for residential use and urban planning, however uncoordinated and anarchic development is dominant in Bamako as well as in other cities. Squatter settlements arise in conjunction with legal insecurity. A basis infrastructure like garbage removal, canalisation and water supply have seldom been set up (Coulibaly 1991). (The same is true for Benin).

Agricultural land: laws have also been passed in the conviction that autochthonous land tenure no longer offers legal security and interferes with or hampers investment in resources. In the face of the inability to carry out legal intentions it has not been possible to prevent the growing conflicts over drawing up boundaries between the plots of different owners, but also the boundaries of land use through farming and animal husbandry. Land reforms have been useful ex post predominantly to those who are sufficiently informed about new regulations (e.g. officials, urban strata) and has promoted land speculation around cities without offering incentives for changing cultivation practices in rural areas which is exemplarily clear in Benin's case.

Forest resources: local and regional users have lost their right to use forests and thus the incentive to manage them on a long term basis through control and limitations. The loss of power of local authorities has seldom been made good through effective resource management on the part of the State. The conditions for the exploitation of forest resources by external groups have improved rapidly (Lawry 1989b).

Pastures: decentralised local pasture regulations have not been replaced by comparably efficient State regulations, as in the Niger valley in Mali. Communication problems and the clumsiness of the administration regularly delay punctual information about seasonal rainfall, temporary pasture utilization and the availability of water (Lawry 1989b). Conflicts between different actors such as livestock owners and peasants or between autochthonous families and migrants have partly been the result of State laws (the establishing of corridors for transhumance and bans of cultivation without reference to local reality, which are accordingly not kept to), but they have already partially offered practical starting-points for their solution (functional committees for arbitration, etc.) (Coulibaly 1991).

30 years of land or rather resource legislation in the Sahel have meant attempts at reform, step-by-step adjustment and muddling through ('bricolage legislatif') (Hesseling/Ba 1993). National legislation is in itself only seldom consistent and is difficult to apply to local problems. It is seen as an impediment to balanced development which is shifting environmental questions into the spotlight. The legislation does not fit in terms of language, since it is only partially understood by those who are affected; it does not take into account the experiences of local resource administration and management; pastoralism gets forgotten - all a problem not only for the Sahel but also the coastal regions of Benin. Land tenure procedures like land registration are often complicated and thus discriminatory for large parts of the population. Questions of conflict settlement are treated abstractly, and local experience is also ignored here.