Registering and Administering Customary Land Rights : PFRs in West Africa

1. Registering and Administering Customary Land Rights:PFRs in West Africa Conference « Land Policies & Legal Empowerment of the Poor » The World BankNovember 2 - 3, 2006 Ph.Lavigne Delville

2. Outline • Intro. Issues of Legal Empowerment • I. Identify and Formalise Local Rights : « Plans Fonciers Ruraux »/Rural Land Maps • II. Formalise “Customary Ownership” or Bundles of Rights? • Land Mastership and “Bundles of Rights”: A Conceptual Framework • Methodological Implications for Surveys • Implications for Land Administration Ph.Lavigne Delville

3. Intro : Issues of Legal Empowerment • In West Africa, most rural people’s rights to land and resources are “illegal” or at the least informal/extra-legal • Complexity and cost of legal procedures : the “glass bell jar” (De Soto) • -> Issues of productivity, social peace, poverty allevation and citizenship Ph.Lavigne Delville

4. Intro. Issues of legal empowerment • When does formalisation of rights lead to empowerment of the Poor ? • -> a debate on the impact of formalisation on productivity • -> a debate on the impact of land markets on the poor (distress sales, etc.) • -> risks of exclusion during adjudication processes • > a need to better assess the conditions and modalities of legal empowerment ? Ph.Lavigne Delville

5. Intro. Issues of legal empowerment • Besides that, two underestimated issues : • the nature of the rights to be recognised/formalised • is the implicit model one of private ownership, or does it really build on local rights and rules, which are more diverse? • the institutional framework able to administrate these rights • reliable, transparent, cost-effective, • and coherent with the nature of rights Ph.Lavigne Delville

6. I. Identify and Formalise Local Land Rights : « Plans Fonciers Ruraux » (PFR) (Rural Land Maps) Ph.Lavigne Delville

7. 1. In French Speaking West Africa : a legal dualism • « Immatriculation » and State Domain vs local customary rights : a legal dualism • Unregulated legal dualism often leads to unsecurity, conflicts and land grabbing • Contexts are highly diverse, and evolutive Ph.Lavigne Delville

8. 2. Plans Fonciers Ruraux (PFR)/ Rural Land Maps • Identify and map land rights as they are lived by people • Pilot projects since 1990 in Ivory Coast, and then Benin, Burkina Faso, Guinea (French Agency for Development and/or WB funding) • A procedure to identify, map and record consensual local rights over land • individual or collective rights • systematic contradictory survey at plot level, • plot demarcation • publicity, conflict resolution and adjudication • “land certificates” as a new land title Ph.Lavigne Delville

9. 2.Rural Land Tenure Maps • Obvious Interests • a pragmatic approach, based on what exists • ends the dead end of classic cadaster and titles and gives legal status to all rights • a response to land tenure insecurity, at plot level • an operational and relatively inexpensive methodology (cadastral survey: +/- USD 7-10 per ha) • (at least partly) decentralised management of land tenure information • can be used in different policy frameworks Ph.Lavigne Delville

10. But which rights are recorded and gain legal acknowledgement ? Ph.Lavigne Delville

11. II. Formalise “Customary Ownership” or Bundles of Rights? Ph.Lavigne Delville

12. 1. PFRs : An Hybrid Approach • Two conceptions of land tenure securisation • titles and legal acknowledgement of ownership rights, promoting investment and productivity • legitimacy of local/customary rights and the effectiveness of local land management institutions Ph.Lavigne Delville

13. 1. PFRs : An Hybrid Approach • PFRs, an hybrid approach, originating from a “topographic” conception of rights • Evaluations and studies raise the issue of rights • a structural ambiguity on the nature of rights • distorsions in the process • may lead to exclusion and conflicts • problems with natural resources and commons Ph.Lavigne Delville

14. 2. A Conceptual Framework for Customary Land Rights • Local/ customary land rights in West African savannas • (collective, family, village, etc.) holdings/estates and individual properties • bundles of rights • rights as “socially authorised actions” • different “bundles of rights” held by individuals or groups • What kind of rights are registered ? Which are forgotten/transformed ? Ph.Lavigne Delville

15. “Customary Landowner” Usus/Fructus (sometimes Abusus) Ph.Lavigne Delville transfer of land use rights Users family rights holders married women installed migrants renters, borrowers temporary land use rights Land Chiefs : ritual powers and arbitration Lineage Segment/Elder Transfer Rights Transmission Rights Inclusion/Exclusion Rights Internal Management Rights AdministrationRights Chief of Household lineage right holder Settled foreigner Investments Rights Cropping Rights Withdrawal Rights Operational Rights Derived rights holder(various statuses) Youths Married women Other right holders for renewable resources

16. 3. Methodological Implications for Surveys • Thinking in terms of (individual or even collective) “ownership” leads to selecting one level of rights holders and increasing its rights, to the detriment of other rights holders • at the risk of increasing exclusion and precariousness instead of security • and causing conflicts instead of resolving them • One must therefore • take the nature of local rights seriously • simplify, in a rational way, the complexity of rights enough so that information can be processed, but without altering ittoo much Ph.Lavigne Delville

17. 3. Methodological Implications for Law and Surveys • > issues about survey tools and methodologies • an applied ethnography of land rights, with skilled field surveyors and anthropologists working together • pay attention to identification, transcription, validation processes and to the content of registers and certificates Ph.Lavigne Delville

18. 4. Implications for Land Administration • How to design the « certificate » in the law, so that it can work for different kind of rights? • How to manage land certificates when bundles of rights are recognised? • In terms of « customary ownership », the certificate’s holder may legally act as a full owner, without reference to local norms and other right holders. He may sell or ask for private immatriculation in his own name. • Contradictions between the nature of recorded rights and the legal rights given by the law. New risks of opportunist behaviour and exclusion. Ph.Lavigne Delville

19. 4. Implications for Land Administration • In terms of « bundles of rights », the certificate’s holder can sell or ask for immatriculation only on private plots, or with theconsent of the other rights holders on family estates • The legal procedures for land rights administration have to be coherent with the nature of the rights recorded • People wanting to sale, immatriculate, or pledge a plot on a family estate must first negociate a formal agreement from the other family right holders Ph.Lavigne Delville

20. Conclusions • Legal empowerment of the Poor needs to take seriously the ambition of recording existing rights as they are • A necessity where poor people rights are complex, to avoid exclusion • A necessity to deal with rights over natural resources Ph.Lavigne Delville

21. Articulating local and public regulation • local land rights are dynamic and individualisation and commoditisation are historical processes • such a broad framework • can work for remote areas with few economic stakes and for highly individualised agriculture with dynamic land markets • and allows for evolutions and change • > the first stake of contemporary land policies is to buildthe bridge between legacy, legitimacy and practices Ph.Lavigne Delville

22. A practical approach • Applied ethnography to build methodologies • A learning process approach • for surveys • for land management • Also a political choice, regarding the definition of property rights and relations between State and citizens • Policy makers and surveyors are often not aware of these issues • A need for public debate on the policy choice • A need for coherence between objectives, tools and procedures Ph.Lavigne Delville