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

1. West African experience

The essential aspects of the current discussion of the type and the level of the establishing of external cooperation are:

• Pros and cons of the support of extensive land reforms.

• Further development of strongly formalized instruments to increase land security (land register) or the promotion of extensive, informal, village based instruments.

• Concentration on the promotion of private property and/or the equally just support and revitalisation of communal institutions

• The setting of main areas of concern on a local, regional or national level; problems of the institutionalising of information flow and of learning processes.

• Along with that the establishing of a minimal requirement for the decentralisation of the decision and planning process for the management of resources.

• Strengths and risks in the promotion of village land use planning for resource protection (gestion de terroir).

• As well, the overcoming of project related initiatives for a stronger process orientation with external facilitating for the development of institutional structures.

1.1. Areas of potential cooperation

Donors are very sceptical as to whether complex, environmentally oriented land tenure reforms which would have to include forest, pasture and water with equal weight, can be extensively realised in phases of transition of many countries to democratic forms, the reorientating of their politics as well as structural adjustment and worsening export conditions. With external support, there is also a great danger that the institutional capacities of legislators will be overtaxed and that only a part of the existing problems such as agricultural zones or the urban surroundings will be perceived, and for example that pastoralism will be systematically neglected (Coulibaly 1991:82, Lawry 1989a:16, Rochette 1993:14).

To date the fundamental prerequisites for the implementation of environmental oriented reforms have not been fulfilled: centrally organised bureaucracies are too little aware of local institutions for allocation and for solving conflicts as well as the priorities of local populations to be able to form a basis for drafting legislation (Hesseling/Ba 1993:50, Runge 1985). For in many ways it is not clear which are currently their central problems and where institutions fail. At best the dimensions of these problems become distinct: the cohabitation of peasants and livestock owners, village overlapping problems of land use, migration to richer regions, the inability of State resource management, and also international disputes over resources. Here an external support of procedures will be able to deliver partial contributions, as they were applied to the elaboration of national environmental action plans, in Benin for example: regional and national workshops for the acquisition of environmental information with the inclusion of all actors; case studies in typical regions for the drawing up of environmental profiles with the utilization of indigenous knowledge.

With that, development cooperation on the national level has the task of promoting and accompanying discussions and learning processes for legislators in order to be able to work out a new guide-line for legislation: are extensive laws with precisely detailed regulations practicable and universally applicable, or does a broader framework of orientation offer advantages? Is such a framework desired by the Administration, and what would be the motives for refusing it? The discrepancy is often great: partner countries prefer a framework of legislation which minutely tries to regulate details and leaves little leeway for interpretation and flexibility regionally and locally. Donors favour basic laws with only a few clear and simple principles such as the guaranty of rights of access without discrimination against race, religion, sex, etc., the priority but not exclusiveness of the rights of local users, simple formulation and the willingness of the State to take on arbitration functions (Hesseling/Ba 1993:65).

A further area of work for development cooperation in the Sahel is in the furthering of the security of ownership and usufructuary rights in situations of growing resource restrictions: this belongs on a national level to the policy dialogue between government and donors whereby starkly diverging priorities and perceptions are involved. For both sides a mutual learning process will take place: allaying the fears of State officials of loss of authority through the shifting of competence over decisions on lower levels in the course of decentralisation and the openness of international donors towards common institutions and less formal solutions than land registry titles. The World Bank has made this learning process public at the latest in the World Development Report for 1992 (Weltbank 1992, Bromley/Cernea 1989, Jodha 1992, Stamm 1993).

The prerequisite for this is sound information about the origins of uncertain and weakened rights to resources as well as the extent of regional differences. Which parties have to live and to work with legal uncertainty (migrants, tenants, livestock owners, etc.)? Is primarily private ownership affected which is expected to be assured by the State, or rather utilization rights (Hesseling/Ba 1993:51)? Applied participatory research can work out in an exemplary way which rights an individual has with respect to a group and to the state, why rights are endangered in the long term and how the options for increased legal security as well as the costs and willingness of the effected groups to participate in measures to increase legal security are involved.

This will only already be possible in the diagnosis phase through strengthened involvement of communal institutions at village or town level in order to be able to carry out decentral action and steps for planning. Here the field of tension between State control requirements and decentral actions becomes clear, by which actions external cooperation must recognise ways of behaviour which impede common resource management (blockades from 'above', fears of decision making 'below') and must also offer alternatives or be able to support the communication.

In dialogue on a local, regional, national and also international level between involved actors and donors, guide-lines should be worked out about under which conditions the promotion of individual private ownership appears to have turned out as sustainable resource preservation. External donors behave here more and more like lawyers for intermediary solutions through long-lasting ownership-like usufructuary rights such as long-term leases and hereditary leasehold per contract between municipality and user, which would be cheaper and quicker to carry out than a land registration entry (Crowley 1991:18, Hesseling/Ba 1993:57f.). Along with that, a precisioning of State functions is necessary, e.g. for the securing of the coexistence of diverse systems of land ownership and utilization rights, the creation and promotion of a transparently clear, unified land market, the limiting of land speculation, locally appropriate channels of appeal for registration of lease titles, etc.. Which are the minimal requirements which will keep common institutions functioning in the future? If the local population is to take over responsibility as a whole, it must also receive recognisable and lasting benefits in the form of legally secured rights for the utilization of natural resources (Waters-Bayer 1992:7).

Currently particularly positive project experience is being made with participatory village land use planning and the forming of committees for solving conflicts in Mali, and Burkina Faso (Coulibaly 1991, Esser-Winkler/Sedogo 1991, Waters-Bayer 1992). Existing integrated rural development and resource protection projects strengthen their activities in this field. Before them had to come a basic rethinking process particularly in resource protection projects so that local communities are no longer looked upon as the 'enemy' of resource protection; rather the attempt is being made to promote active participation and co-administration which makes better resource protection possible (CILSS 1988:62, Hesseling/Ba 1993, Tobission 1992:29). The strengthening of institutional structures and work of convincing remain as future challenges for cooperation so that Governments also accepts long-term, local newly created rules after the withdrawal of the donors, and also respects and tolerates or supports their further development.