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

5. Land tenure problems and sustainable resource utilization in a West African context

This chapter is designed to give an overview of and to help to solve the following problems: which land tenure problems are dominant in other West African countries; in which ways do they impair the sustainable utilization of natural resources; how do the research results from Benin fit in here; which problem areas are applicable here and about which one can be generalised here within limits; where do the special features lie, in particular those between the Sahel and coastal countries?

5.1. The main problems

To sum up, the role of the State in the adapting or reforming of land legislation for the stronger inclusion of resource protection and the acceptance of environmental priorities will be critically judged. In doing this, the State would be given the responsibility of assuring equality for all citizens for their rights and obligations in resource utilization, to safeguard neutrality and justice in the application of the existing regulations and to offer coherent and efficient measures for the protection of the environment (Hesseling/Ba 1993).

In reality, a centralised State functions in almost all countries, a State which has always further built up this very historical inheritance of centralism. For one thing there exists an unrealistic overestimating of the possibilities of 'modern' law and the application of written land law locally. At the same time there is a naive underestimating or ignorance of the problems of local actors for the use of resources and the weakness of enforcement of State law locally.

Registration of land has not led in the majority of countries to secured property titles for most people, nor to long-term resource preserving investments. The hoped-for incentive function is only weak. Land registration entries secure primarily the rights of minorities like the urban elite in contrast to the rural population, of peasants in contrast to livestock owners, and of male family leaders in contrast to the young or women (Crowley 1991:17). First and foremost in the densely settled regions as on the coast, in the river valleys and in the proximity of towns land has not only become the object of economic transactions on formalised land markets, but rather a factor of power and an object of speculation (Neef/Heidhues 1993a).

Since Independence, land tenure policy and legislation follow a cycle in most countries, which is also true of Benin. This cycle partially develops itself continuously, and partly it has been forced through political changes of power: stepwise modifications of land tenure for the strengthening of State influence after Independence; frequently extensive reforms at the end of the 60s in the direction of State ownership or cooperative forms which were supposed finally to overcome the colonial inheritance and renewed alterations since the 80s under the pressure of international donors (Coulibaly 1991:28).

In the face of incalculable repercussions in times of economic crisis and the endangering of autochthonous institutions, Gambia has renounced planned extensive legislative reforms and now pursues locally specified initiatives. In Niger an extensive land reform has been in preparation for years with the 'Code Rural' including European (style) property titles. The resistance of those affected, in particular livestock owners, is predictable and the work of the reform progresses haltingly (Neef/Heidhues 1993a, Rochette 1993).

Development cooperation is conditioned: the reform of land legislation is expected, above all in the sense of promotion of private ownership of resources. With structural adjustment and the threat of its withdrawal donors appear as facilitators and guarantors of legal and political conditions to allow expectations of greater legal security and more favourable conditions for investment. The concepts are not alone limited to the spreading of land registries, the creation of more clarity in the land market and promotion of private ownership. They also favour the registering of rights in informal ways in connection with village land use planning (comparable to the PGRN in Benin) (Hesseling/Ba 1993:7).

The enforcement of State property claims to land has lastingly damaged local resource management particularly in the Sahel with its large pasture lands which were formerly common property and has promoted resource degradation: the keeping out of 'strangers' is no longer possible since State law gives the right of utilization to all citizens. There is neither the possibility for local users to keep others out, nor is there leeway for making new negotiations for the regulation of utilization, since this would counter State law (Hesseling/Ba 1993, Neef/Heidhues 1993a).

The legal insecurity of resource users is growing: new laws are only slowly spread to the local level, the regulations are too complicated, scarcely comprehensible and not always understandable even for those who understand the official language used. They always offer the local Administration a lot of leeway in judgement, even arbitrariness. State Administration and jurisdiction are in a permanent legitimatizing crisis which is accompanied by slowness, complicatedness, high costs and bribery. Laws are too seldom accompanied by practicable regulations for implementation which would assist district commissioners and judges. The consequence is uncoordinated improvisation, a muddling through. When the State Administration is incapable of managing natural resources in an sustainable way, the local population has possibly already resorted to 'self-help measures': poaching, tearing down hedges and fences around enclosed pastures or woods, or the bribing of the poorly paid supervisory personnel (Waters-Bayer 1992:6f.).

In contrast to that, the significance of local authorities for the regulation of access and utilization of resources are still highly esteemed in the Sahel. As long as land does not acquire a high market value in the proximity of towns, the traditional systems remain functional (Schoonmaker-Freudenberger 1993). Accordingly, State law comes into conflict with autochthonous institutions which administer justice and make solutions to conflicts. There are attempts made to get around or to ignore new legal requirements. In the extensive, open lands of the Sahel, resorting to State justice is rather the exception: informal arbitration through local conflict management is the norm. It is with this very solution of disputes that State law has failed in the past and has merely reacted with repression on this challenge which has enlarged the mistrust of those involved.

The State's claim to property can thus only be very incompletely implemented. The consequence of this is not only legal insecurity, but also attempts parallel to that to secure individual private property rights in these grey areas. More and more the sale of land in the urban context is spreading out into the villages (Coulibaly 1991). Land is becoming an object of investment and a source of profit. Upheavals of this sort are occurring in resource utilization and its management in Mali, Chad, Niger and Mauretania in the vicinity of towns: high civil servants, officers and business men buy land, partially use it (fruit or vegetable gardens) or keep it for speculation.

The competition for the purchase of land is also increasing in regions where common land tenure was dominant in the past. Strategies for securing rights to land are becoming more individualistic. Everyone tries early on to underpin a claim to land to the detriment of common solutions (Lawry 1989b, Hesseling/Ba 1993). Local authorities from time to time take advantage of their position and urge on the exploitation of collective goods: they further uncertainty of tenancy through taking advantage of emergency situations during droughts, claim village land for themselves or sell already land which is common land under the hand as in the Niger Delta in Mali (Coulibaly 1991, Crowley 1991).

When agricultural land, trees or grazing land are more strongly used for commercial purposes, conflicts between involved interest groups also increase. Old established inhabitants fear expropriation by down dwellers. In the middle of all this is the securing of marshy areas and fertile pastures. Disputes over the drawing up of borders increase, and especially when the commercial value of land rises as a result of projects (Hesseling/Ba 1993).

In regions such as Senegal where land gains in value, one can likewise observe the traditional practise of loaning land is rapidly losing significance and share-cropping is becoming more important. Loaning out land over several years brings with it the danger that the borrower will claim the land before the village committee and sometimes he is adjudicated the land. Everywhere in the Sahel the ban on planting trees is implemented (Coulibaly 1991:87, Schoonmaker-Freudenberger 1993). Whoever on the other hand acquires rights to valuable land invests immediately in agroforestry measures such as planting of fruit trees, hedges or wind breaks. This is an indicator that the promotion of private ownership of land can motivate resource preserving thinking and behaviour by land owners.

Correspondingly, various property systems not only for land but also for trees have been built up: trees as private property on farms are acquiring growing significance and positively influence resource protection; on the other hand, trees which are common property in village forests are more strongly endangered by disputes over land between competing parties (neighbouring villages, livestock owners) and diminishing protection from the community; trees in State forests are endangered by the insufficient protection of the State (Bruce/Fortman 1989:1).

The extensive introduction of cash crops (cotton, groundnuts) and animal traction has also led to more uniform extensive cultivation systems in farming regions in the Sahel as well as the receding of fallow land and the reduction of soil fertility. Parallel to this, the demand for fire wood and charcoal has grown rapidly and has encouraged erosion (Crowley 1991:47).

The most far-reaching effects can be thus summarised:

• Common land becomes privatised and individualized which does not further forms of sustainable utilization at least in the vicinity of towns. In rural regions there are the beginnings of strengthened agroforestry measures.

• Common land has become State-owned and in reality is plundered as though it were an openly accessible free resource. Its degradation is advancing rapidly.

• The rights and interests of livestock owners are thus quite inadequately taken into account. Massive, sometimes bloody conflicts, the termination of traditional common limitations upon utilization for farmers and livestock keepers and the over-utilization of grazing and water resources are only some of the consequences (see below).

• Concepts for the securing of property rights which go beyond the concept of private property are scarcely followed up.