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

2.3. Land legislation and policy in Benin

Benin has put new accents into its land legislation since independence, in particular the promotion of cooperative forms and State farms in the Marxist phase. Parts of the legislation were cancelled after democratisation, or rather were not used again so that there is a discontinuous development in the legal and political framework in regard to state property of resources and the rights of utilization through individuals and groups.

On the other hand, the treatment of land belonging to both natural and legal persons, of land tenure in towns and for example the forest law show an astounding continuity which has its roots in colonial times (Crinot 199_). In face of dramatic changes in basic social and economic conditions since the 1950s through population growth, urbanization, foreign trade pressure and environmental problems, these laws are scarcely able to do justice to their original tasks

The fundamental principles of land tenure legislation are:

• Like every law, it is uniform and universally applicable over the entire national territory.

• It follows the French inspired classification according to 'domains'. Since no government, including the Kérékou regime has ever brought down an extensive land reform law, there is no article which explicitly states that all land which is not registered belongs to the state. The constitutional decree from 1977 defines 'uncultivated land' (terres incultes) as State land so that the delimitation problems of 'terres vacantes et sans maître' from colonial times merely turn up again under another name (Foli 1986). Thus autochthonous land tenure institutions still remain recognised even today, however only implicitly as an unnamed residual.

• Even if Benin lawyers do not see a legal basis for the primacy of state ownership, land tenure practice sees it differently: it is deeply rooted in the consciousness of all levels of administration that the State is, after all is said and done, the owner of all natural resources. Autochthonous land tenure justifies if need be, only ownership-like usufructuary rights. Peasants and livestock owners with formal education have also internalised this principle.

• Through the procedure of land registry, the State ensures an exclusive private land title for natural and legal persons (titre foncier).

• The State has a far reaching right even since democratisation to expropriate land which is cultivated in line with customary rules in the 'interests of the general public' and to confer titles in land through urban or rural concessions. In such a case there is no right of appeal for compensation.

2.3.1. Registration of private land rights

The law No. 65-25 from 14th August, 1965 regulates the access to private and exclusive land rights through the land registry and is a central point of the Benin land legislation. In form and content it has been directly taken over from the colonial decree of 1932, valid for the West African colonies. The basic colonial idea also remains valid: The establishment of European marked private property as an institution which is prepared to be recognised and protected by the State in the final instance.

In the face of land shortage and a growing interest in clearly defined and secured property rights of the urban and rural population, the limits and inadequacies of this law become overly clear:

• The complicated procedure requires a good formal education in order to be able to carry out all the steps.

• The procedure is extremely time consuming: from the first application till entry into the land registry takes about one year, provided that the applicant intensively pushes the progress of the administrative procedure ('suivre le dossier').

• The costs are high: to survey a simple, square piece of land valued at 500.000 FCFA, it costs at least 215.000 FCFA.

• The process is extremely centralised. There is only one land register in Cotonou.

• Correspondingly the law is extensively unknown in rural Benin. Primary urban dwellers, civil servants, lawyers and business men, because of their professions and standard of education, are in the best position to take advantage of the law.

The registration of ownership titles thus takes in no way into account the socio-cultural and economic situation of the population (Bio/Houngbo 199_). Accordingly, the effective area is limited to towns and their surrounds. In the time period between 1982 and 1992 a mere 796 entries were carried out. In the last ten years, the largest rate of growth is to be noted in particular in the zones of town enlargement and neighbouring places. For an owner of a plot can only claim compensation for expropriation of land when the land is entered in the land registry. Since land in villages in the vicinity of cities gets increasingly expropriated in the public interest for communal infrastructure measures (construction of roads and public buildings), the process is worth it for speculation purposes. Furthermore, it is the prerequisite for guarantying formal bank credit.

Assuring credit with real estate is seen more and more as an argument for the necessity of property titles recognised by the State. How far there is a hindrance to investment in the preservation of natural resources is difficult to estimate: in rural areas there is certainly access to informal credit (Neef/Heidhues 1993b). If civil servants or business people want to invest in the setting up of animal breeding operations, pineapple or oil palm plantations, they have either already registered acquired land, or own other securities in towns. Investments in small scale farming operations, on the other hand, are allowed to comprise strong non-monetary components (family workers, local seeds, etc.).

Thus the most important Benin land regulation act only reaches a very small minority of citizens. Its effect is administratively and financially frightening if not prohibitive. It builds up and ever growing gap between everyday land sales practices and legal requirements. Thus the need for legal security on a less formalised level, accessible to all, is not achieved; rather a grey area with unclearly defined property rights is supported. Above all it offers no practicable basis for the legal and political assurance of investment in environmental preservation for the large majority of urban and rural resource users.

2.3.2. Animal husbandry and use of pastures

A need for legislation in the area of animal husbandry has been in existence since colonial times principally through mobile cattle keeping. Benin differentiates between national and transnational transhumance (Bourgeot 1990, Schleich et al. 1994a,b). Within the national framework, minor transhumance helps to avoid conflicts with peasants in more heavily settled regions in that cattle is kept at a sufficient distance to the villages during the cropping season. It is also institutionalised as part of the customary legal regulations

In comparison, major transhumance is pursued in the dry season, up to 100 km away and even exceeding province borders (Borgou/Zou). Transnational transhumance comes from neighbouring Sahelian countries and from Nigeria to Benin.

As a result of more intensified, more violent conflicts in large and transnational transhumance a law was passed in 1987 for the utilization of open pastures, uncontrolled grazing of domestic animals and of transhumance (Law No. 88-013 from 21th September, 1987). It was, however, hardly applied:

• the parties still oriented themselves to the decades-old, locality-specific regulations, as long as the power of the State was unable to enforce the new law locally;

• in its establishment at the conference table as a general blueprint the specific conditions of peasants and animal keepers in the North were hardly taken notice of. Nor was a regulation sought to reconcile different interests.

In contrast, it is also being attempted, in continuation from colonial times, to influence the pattern of utilization of pasture land and water sources, using veterinarian regulations with legal character. Even if no detailed investigation has been made, one should assume that above all it is a question of sufficient personnel in really being able to enforce limitations of utilization (seasonal and regional bans on grazing, animal health control of water holes, etc.).

One also tries to exert legal influence on transnational transhumance: the 'Communauté Economique du Bétail et de la Viande' (CEBV) is responsible for this, where Niger, Mali, Burkina Faso, Togo and Benin have banded together (Banque Mondiale 1992, Bourgeot 1990). The organisation is indeed known in expert circles, but there is hardly any information about the state of its legal preparatory work or its other activities.

Apart from these statutes and initiatives, mobile animal production is strongly indirectly influenced by forest regulations which explicitly dedicate paragraphs or whole sections to bans on access and utilization of herds of forests (see 2.3.5.). It is scarcely possible to comprehend all the currently dispersed legal regulations concerning animal husbandry and pasture utilization. A 'Code Pastoral' which is part of a more extensive 'Code Rural' does not exist, so it is not puzzling that the laws are even less well known by the population and the local administration than State land tenure in the narrowest sense (registry of titles).

2.3.3. Urban land tenure

In 1990, 32% of the population lived in places which were classified as urban. Its share is estimated at 45% for the year 2005 (Reap. du Bénin/MEHU 1993b). Not only uniform regulations for the utilization of residential areas have been shifted to the centre of attention, but also connected rights of access to an elementary communal infrastructure (water, electricity, road construction) and above all the duties concerning waste management. Since the establishment of property rights in urban centres spreads more and more into the surrounding villages, which in the case of Savalou is made very clear, there is also a direct connection to the organising of rights to resources in rural areas.

The permission of residence (permis d'habiter) in towns is regulated by the law No. 60-20 from 13th July, 1960. It covers merely land for residential purposes which is in State possession and is situated in towns, in which a plan for zoning (plan de lotissment) or an urban development plan (plan d'aménagement) exists. The zoning out of residential districts and the awarding of residential permits are dependent of one another. In a relatively unbureaucratic process, a property right for an already developed or undeveloped and marked plot is awarded to individuals. This is merely a usufructuary right which is temporary and can be recalled for example in a case of alterations of the city's development plans (change from residential to commercial areas). In such a case, compensation is paid, or another plot of land is allocated.

Amongst the large majority of the population there is the misunderstanding that such permission of residence establishes private exclusive property rights. There is a presumption of legal security which does not exist. Only the purchase of such a plot from the state and a land registry entry would establish private ownership. Accordingly large is the interest that land zoning is also encouraged in smaller towns (i.e. the district centres) even if the land has been used for agriculture

The law originally planned for cities also influences the agricultural pattern of utilization; loaned or leased land is taken back when zoning takes place for fear of ownership claims by tenants or borrowers. In the face of the increasing economic value of land and of urbanisation, this law acquires an influence which was hardly intended.

2.3.4. State farms and land of co-operatives

Agricultural state farms following the Soviet model were set up in the Marxist era of Benin. Plots vary in size from less than 100 ha up to cattle farms in the North of 30.000 ha. The taking of land by the State is based merely on a renewed decree from 1930 (!) for the expropriation of land in the public interest, and also on an arbitrary interpretation of the laws of 1961 about land perimeters and agricultural co-operatives (see below), so that it did not have to be confirmed with a special land reform act (Crinot 199_). The case also underlines the continuity in the legal and political framework and the ability of the central state to derive its supremacy over property rights in resources from a very small arsenal of written laws.

Even when the expropriation of land was legally assured, the populations of affected villages had to experience brutal expropriation. Important fallow and reserve land was lost, resettlement programmes were enforced. It was not until the end of the 80s that this was all revealed to the public.

By 1988 the running of state-owned enterprises had gradually been stopped. Their future is uncertain.

• Restitution to former owner groups would mean a formal recognition of their rights. It would weaken the State's property claim to natural resources.

• Privatisation of, and awards to business men is unrealistic in the face of the ailing condition of the operations.

• In at least one well known case, the local population is using a legal loophole. It is beginning to re-occupy their land and to re-cultivate it. The local administration is keeping quiet.

The legal basis for the concentration of resources in State property was achieved in Benin as in most other West African countries immediately after Independence:

• Law No.61-26 from 10th August, 1961 is for the creation of rural development perimeters and its utilization (Périmètres d'Aménagement Rural) and

• Law No.61-27 from 10th August, 1961 for the Statute of Agricultural Co-operatives.

These laws are closely related. With their application large oil palm plantations arose (at least 30). The unscrupulous expropriation of land marked the attitude of the affected people towards the Marxist State. With its breakdown, most of the plantations were abandoned and are in a pitiful state today. These plantations in the course of democratisation build up an enormous amount of tenurial and socially explosive material and became a measuring stick of the State's will for change. In the face of the unclear question of restitution of land, former land owners in the Altlantic Province and the Ouémé Province have already destroyed fruit, trees and technical installations, and have carried out sabotage at various levels ('What belongs to us, but which we don't get back shouldn't be used by the State either.'). In the area of investigation, at Sékou, where 10-15% of village land has been expropriated, the displeasure of the people is growing because of the dragging dealings with the State and its unsatisfying offers (new co-operative solutions).

In view of the bad state of many plantations, there is resistance in the Benin Government concerning a rapid restitution. It fears that farmers will immediately cut down trees with low productivity because they are old or overrun with weeds, in order to be able to immediately use the land for agriculture and thus give land erosion a boost. The tension surrounding land tenure and resource utilization which is increasing in the South, is even more aggravated by these historical burdens. A long-term solution is only possible when property rights and resource protection are consciously seen in alternating connection.

2.3.5. State forests and national parks.

As with scarcely any other resource, forest legislation in Benin carries on unbroken the colonial principles and regulations. This continuity can be seen even after the lifting of the forest code of the Marxist era only brought down in 1987 and its new version under the influence of international donors such as the World Bank. The legislation is dominated by thoughts of protection of forests against potential exploiters. In Benin as well the forest police was and is a paramilitary unit with far reaching powers.

Benin has only scattered remains of secondary forest available. According to the Forest Law No. 93-009 from 2nd July, 1993, State Forest ownership is divided into classified domains (domaine classé) and protected domains (domaine protégé). The classified domains cover classified forests, areas for reafforestation, national parks and hunting zones as well as reafforestation areas within the protected domains which serve the protection of the environment.

The classified forests are most comprehensively protected through this law. They cover about 1.3 million ha which is about 12% of the surface of the country. National parks and protected hunting areas take in likewise about 12% (see map 2 in the appendix) (Banque Mondiale 1992, Bourreau/Sylla 1989:11, Zaki 1993:5). The rights for the use of this State property are starkly limited by classifications made in the 1940s and 1950s:

• All forms of cultivation, including clearing land are prohibited.

• The utilization of forests products fruits from trees is basically limited to collecting wood for non-commercial purposes and collecting fruit and herbs for personal use, tightly limited pastoral rights for particular breeds of animals in restricted zones as well as fishing.

• Uncontrolled grazing of domestic animals (divagation) is expressly forbidden. (The law has a special section devoted to this.) The law keeps open the possibility of opening up forests for grazing purposes on a local basis by decree.

Of particular significance is article 34 which gives the local population exclusive usufructuary rights:

• In contrast to earlier laws, local users are granted a tightly limited, but clearly defined usufructuary right. This is the first step towards re-recognising the rights of local groups , for before the decree of colonial law, forests were part of the village patrimony and were utilised in a variety of ways. The stripping or ignoring of these rights brought about the illegal continuation of these practices and decade-long skirmishes between neighbouring groups and the forest police.

• Rights of utilization are exclusive in that they exclude non-locals. On the one hand there is a legal lever against organised wood felling and against the settling of immigrants, on the other hand transhumant cattle keepers remain excluded from these resources.

Rights of utilization in protected forests are more comprehensive. The land may be cultivated: that is, farming and grazing of domestic animals is permitted, likewise the collection, cultivation and sale of forest products. Any new clearing is only possible with the permission of the forest administration. There is no limitation of user groups on neighbours.

Thus the law at least no longer hinders social forestry incentives and offers a legal framework which opens free room for sustainable models of utilization.

2.3.6. Growing inclusion of environmental aspects in legislation

According to official reports, Benin has already been giving importance to the maintenance of environmental qualities for a long time (Rép. du Bénin/MEHU 1993:40.). This interest is quantifiable in the laws brought down and in newly created organisations with a environmental nexus. In the first three decades after Independence this encompasses six statutes and one decree of which the following are of interest:

• the law for the organisation of land ownership (65-25),

• the decree for the ban on bush fires and burning on plantations (82-435),

• the forestry law of 1987 which has already been replaced by the one from 1993,

• the law for public grazing, supervision of domestic animals and transhumance (87-13),

• the law for conservation and hunting (87-14)

• the water law (87-16)

Older laws like the one from 1965 for recording land ownership in the lad registry deal in no way specifically with aspects of securing and preserving natural resources, and others than the mentioned touch environmental problems unconnectedly and unsystematically. It is acknowledged that environmental problems and the difficulties of applying legal regulations locally (forest and pasture laws) are immense, also that the most recent statutes, referring to the totality of development problems, are more likely to deal environmental problems defensively and subordinately.

After the beginning of democratisation in Benin in 1989, one can determine new accents of a particular inclusion of environmental destruction and preservation in legislation and policy:

• Article 27 of the Benin Constitution from 1990 states that one of the basic human rights is the right to a healthy, satisfying and sustainable environment.

• Both of the World Bank's and IMF's structural adjustment programs have taken into account since 1989, in the face of growing conflicts about resource exploitation and land rights, the over-exploitation of land as well as the degradation of the urban environment along with growth and distributional and economic objectives. Even if the protection of the environment has not been integrated into the general program as a general, sector-comprehensive category, it retains weight in sector politics and programs which strive to remove problems which have arisen, but which also carry out preventative measures through (Gräbner 1992):

• a program for resource management with the "Projet de Gestion des Ressources Naturelles" [PGRN] as a starting point. The support of international donors was conditioned to the revision of the forestry legislation of 1987 in order to allow participatory beginnings in forest utilization by neighbours.

• the working out of an Environmental Action Plan (Plan d'Action Environnemental [PAE]), beginning in April 1992, which was published in June 1993.

• The founding of a Ministry of the Environment (Ministère de l'Environnement de l'Habitat et de l'Urbanisme [MEHU]) in 1992, the work of which is closely oriented to the programmatic framework of the environmental action plan.

• Working out an environmental basic law which is thus for only in the first draft (Adokpo-Migan 1993). Regulations for property rights to natural resources are not integrated. The historically grown acts for land ownership, forest, pasture and water utilization are supposed to remain valid.

2.3.7. The National Environmental Action Plan

The Environmental Action Plan embraces seven program areas for concerted action; the planning horizon is 15 years. They are taken from the analysis of central environmental problems of the country, whereby this problem analysis was obligated to a participatory and multi-disciplinary approach. The different elements and the steps with reference to the inclusion of actors and stake-holders and the search for the formation of consensus between diverging interests are of an exemplary character (Müller-Glodde 1994):

a) Exchange of information and free speech about regional and local problems as well as suggestions for solutions in regional workshops (Rép. du Bénin/MEHU 1991 a,b,c, 1992a). Participants were actors to the process of utilizing and thus also the destruction of natural resources. At the same time they were addressed as actors affected by or participating in the planning processes for the preservation of the environment and sustainable utilization of natural resources: rural producers (peasants, livestock owners, forest users, fishmen), representatives of various segments of the urban population as well as those responsible for State Administration, of projects and NGOs.

b) Case studies in rural and urban areas, carried out in four agro-ecological zones by multi-disciplinary teams with the help of the Participatory Rural Appraisal (PRA) approach. The aim was to complement and to test information gained in the regional workshops. Women and young people who were not given sufficient chance to articulate themselves in the workshops were supposed to be given a greater say.

c) Work groups with thematic emphases, amongst others institutional and legal framework conditions, environmental planning (Rep. du Bénin/MEHU 1992b)..

d) A national workshop which brought together actors from Ministries and other State authorities, NGOs, representatives from the private sector, and alliances from universities and research, from regional administrative and international donors. The aim was to form opinions concerning diagnosis, strategy and the setting of priorities.

e) The analysis of 202 development projects with an environmental element.

f) Summarising statutes with environmental relevance from the period between 1898 and 1992 (Rép. du Bénin/PAE 199_). This work is a basic prerequisite for the planning of an environmental basic law, and also for a re-formulation of inadequate current laws and regulations.

Tenure related measures will be explicitly set out in two packets, namely land tenure policy and security of legal titles:

1) The improvement of rural conditions with participatory approaches recognising local norms and customs. The definition and commencement of a land tenure policy are planned, the aims of which are the setting up of mechanisms for insuring long-term rights of resource users at low cost, and the increase of investment in natural resources on plots of land with secure titles. Further the creation of land registries at the provincial level (there are currently six provinces in Benin) and their coordination at the national level as well as sensibilisation measures for the improved utilization of legally secured plots of land.

2) The Improvement of urban conditions. An urbanisation rate of 5.1% from 1980 to 1991 per year underlines its future significance. In a good ten years, 45% of the people will live in towns (Weltbank 1993, Rép. du Bénin/MEHU 1993b). The attempts to secure land rights are comparable to those in rural areas. Measures are as well the accelerated installation of urban land registries, starting with the towns of Cotonou and Parakou and the widening of the municipal register to further towns (SERHAU 1993).

The aims and measures for the urban and rural area are almost identically formulated. Thus there is a danger of underestimating the necessity for differentiated approaches: utilization as land for construction requires other instruments than those for utilization for farming and grazing. The securing of mortgages and credits are of priority in towns; in rural areas long-term cultivation and utilization security as well as the upkeep of soil fertility is required. Individual private property is a significant concept; individual and group usufructuaryrights are another.

Questions of altering consciousness and of suitable agricultural research will be given high importance in the Environmental Action Plan (upkeep of ecological diversity, education, training, sensibilisation and communication, training the trainers, action research about village resources).

The environmental action plan was first presented in autumn 1993. The degree and success of its application can therefore not yet be assessed. It should be emphasised that there is an attempt to deal with environmental problems in a multi-disciplinary and sector-comprehensive way in analysis and planning. Likewise that property rights in resources take in a central position in their interaction with sustainable resource management at all village levels right up to ministerial coordination. The plan underlines the fact that legal measures will be ineffective without changes in the consciousness and behaviour of the various actors; it emphasises the striking deficit of appropriate agricultural research in Benin aimed at the preservation of resources. The plan avoids clear statements about the necessary decentralisation.