African land tenure: the options for more efficient regulation
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Biaou, Gauthier. 1993. African land tenure: the options for more efficient regulation. Spore 48. CTA, Wageningen, The Netherlands.
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Gauthier Biaou, an agronomist, was in charge of agricultural extension in Benin before taking up his present position as deputy head of the Department of Rural Economy and Sociology at the Faculty of Agricultural Sciences. The traditional land...
Gauthier Biaou, an agronomist, was in charge of agricultural extension in Benin before taking up his present position as deputy head of the Department of Rural Economy and Sociology at the Faculty of Agricultural Sciences. The traditional land tenure systems are not the cause of the low rate of investment in agriculture and forestry, nor of the degradation of the environment, nor yet of the rivalry between tribes. It would therefore be better to develop the traditional systems rather than try to work them in with a modern system, or to get rid of them altogether. African systems of land tenure are complex. They vary from country to country, and even within the same country where there are different ethnic groups. In Benin for example, the law of 1965 did not put an end to traditional land tenure law, but brought in an optional land registration scheme on condition that the land was neither disposed of by deed nor grant, and that it should no longer be regulated by common practice but be subject to a written contract drawn up in accordance with the principles of civil law. This is an example of the coexistence of modern and traditional land tenure law. In many other African countries common law predominates. Rightly or wrongly, common law is often accused of being poorly defined, passed on by word of mouth and thus subject to different interpretations, causing disputes and perpetuating clan rivalry. It is blamed for the inefficient allocation of agricultural resources and poor levels of investment since farmers cannot be sure of their rights, and it is seen as the reason why the conservation of natural resources is not undertaken. In short, it is said to hinder agricultural development. Nevertheless, common law land tenure has its advantages. It is flexible and can be adapted to circumstances and thus make a positive contribution to socioeconomic change. Common law also permits the settlement of non-indigenous people on land belonging to native communities, and this does not militate against agricultural development, though it rightly requires foreigners to submit to local customs and usage regarding land use. It prevents, or at least reduces, the emergence of a class of landless peasantry which is the result of accumulation of land by the rich, facilitated further by the registration procedures under modern law. It also prevents both absentee landlords, and extortionate rents being charged to peasant farmers. It stops native peoples becoming the tenants of outsiders on the land of their ancestors. Lastly, it puts a brake on farmers who want to use, land which is vital for agricultural production for other purposes. Common land tenure law does not forbid new-comers to plant trees, but it prevents them from becoming landlords and the land being taken into private ownership. Obviously control procedures must be included as an integral part of local law so that the law does not lead to environmental destruction or to low investment on land worked by imigrants, or to disagreements between newcomers and local people. Furthermore, common land tenure law can be amended and improved as circumstances dictate. Land tenure systems in many parts of Africa are evolving and it is vital that regulations keep pace with the changing situations encountered today. Modern law is at present inadequate to resolve questions of tenure satisfactorily, especially in rural areas. What should be done? Regulation must be in sympathy with the reality of contemporary society, it must have something to contribute in response to society's basic problems. Two major steps could be taken; firstly, define the areas where the two different legal systems will be applied (modern in urban zones; common in rural areas). Next, give local communities jurisdiction over matters of land regulation, and improve the common law code which applies in these cases. Common law will benefit from being enriched by some of the more positive aspects of modern law. But the difficulty lies in the fact that local communities have different sets of rules, and it is therefore impossible to enforce the same code of land tenure law in all of them. Instead of meddling with existing village systems by imposing modern regulations which have been copied from imported models, it would be better to allow local common law to regulate questions of land tenure, since common law is flexible and is capable of adapting to the socio-economic and cultural changes in a country. Limited assistance from outside aimed at enriching local law in particular, and defining circumstances when necessary, will increase the effectiveness of the local system. The views expressed are those of the author and do not necessarily reflect those of CTA.
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