To better understand the system of land tenure in Africa, the view of the anthropology of social change and development provides useful insight. This is particularly the case for the question of formalizing (or registering) customary rights, which is considered as a major issue for securing the rights held by the vast majority of African farmers.
It also constitutes a real historic challenge, as despite the fact that this has been discussed for over a century and that titling programs have been launched, the situation has not changed significantly: only a tiny minority of customary-based land rights have been legally recognized and registered in rural Africa and the sustainability of the titles that have been issued is as fragile as ever.
If we adopt the (non-prescriptive) perspective of the anthropology of social change and development, this issue may not have the uniform and dramatic character that it is made out to have. Indeed, the phenomenon of the pluralism of standards and institutions (notably in the land sector) is a constant and universal phenomenon in the processes of change in the area of land rights. The question and issues of the pluralism of the sources of rights only really mean something if they are broken down into the various relevant “strategic groups”: grassroots farmers (according to whether they are natives of the area or migrants), buyers from cities, the members of the political and economic elite, governments, development projects, local or international firms, etc. Moreover, any reflection on the land situation in Africa includes the system of interaction that exists between local land users and all stakeholders who have an interest in being involved in land: national public actors, international development institutions, donors, consultants and applied research… Finally, development anthropology attaches great importance to the empirical data acquired by a detailed knowledge of research fields, on the one hand, and to putting contemporary processes into a historical perspective on the other hand.
Placing myself in the perspective I have just mentioned, I would like to discuss the conditions for collaboration between researchers and development operators on the land issue in Africa, and more specifically with regard to formalizing customary rights. I will support the argument that since the colonial period, there has been a constant gap between the knowledge acquired by an entire section of field research on the one hand, and the hypotheses on which public policies in the land sector have been and continue to be based, on the other hand. I discuss the implications of this observation on the ability to renew analyses, both on the research side and on that of development operators and I draw some practical lessons from this.
The social recognition of rights must precede legal recognition.
The absence of private property rights, an obstacle towards development?
Since the colonial period, land policies have increasingly focused on the idea that the absence or weakness of endogenous private property rights in Africa are the main obstacle to helping land practices evolve toward growth and development, with full-scale experiments in some countries from the 1900s to 1950s. While they have always been presented as simple legal tools that are socially and politically neutral, these policies were devised as deliberate attempts to “depoliticize” land relationships through titling, with the formalization under the authority of the State intended to definitively extricate the registered rights from the influence of customary, community and family legitimacies.
What is at stake is “What are we asking?”
Field research criticized this idea even before countries became independent and demonstrated that it was more relevant to seek to understand the processes of change in customary land systems in a contextualized manner and for themselves rather than assessing them purely on the basis of the criterion of the generalization of individual private property. The key research question is not: Why is it so difficult to establish “modern” property rights in Sub-Saharan Africa? But: Why do so-called customary rights continue to exist while experiencing transformations?
Field research has thus been able to offer analytical perspectives that recent research often only rediscovers. I summarize some of the main contributions:
- 1. A move away from culturalist interpretations;
- 2. An approach that gives priority to the point of view of stakeholders, their ability to manipulate customary rules and their room for manoeuvre in this respect;
- 3. The fact that private property does not exist in the legal sense and the prevalence of the status of belonging to groups in the rules for assigning rights do not mean that individual interest, the quest for profit and market transactions are ignored by African systems;
- 4. The observation of a strong individual component in the bundle of local land rights, in conjunction (and often in tension) with their collective or community component (“common assets”) to which these land regimes are not restricted;
- 5. A process-based and contextualized approach to their change, which cannot always be determined in advance for issues such as the possibility to dispose of the land;
- 6. The fact that the area of land relationships is a political force field in which the government of men and the government of resources are closely intertwined via various registers of citizenship (local and national), identities and adherence, particularly in view of the many forms of mobility that have characterized the history of rural Africa.
The important point in understanding the “land game” is that the sociopolitical relationships among men over land determine the relations between men and the earth as an economic resource. Land rights contain inextricably linked bundles of rights of access to land resources (for example, by inheritance, sale or loan) and bundles of rights that are a sign of belonging to a community (by descent, adoption, voluntary or forced reception…) on which the effective securing of access to rights depends. The social recognition of rights must precede legal recognition, except in the case of the always possible powerful over the weak practices.
How capitalizing on the results?
Despite these results, which have been cross-checked many times, qualitative social science research in the land sector has encountered difficulties in capitalizing on its results and renewing past intuitions. The intuition, in particular, by which institutional change does not take place according to a logic of the gradual replacement of a normative and institutional system by another, as suggested by the orthodox theory of property rights, but according to a logic of the “stacking” of heterogeneous normative systems, which interact with each other without making each other disappear. The best example of this is the land situation in Côte d’Ivoire, where monetary land transactions in a neo-customary framework are very similar to acquisitions-sales, but remain embedded in sociopolitical relationships which are likely to be reactivated in crisis situations. Fifty years after countries gained independence, the analytical framework and diagnostic of the land situation in the literature on qualitative land research has not changed significantly. However, the need to renew research paradigms by breaking away from the formatting by paradigm of the inevitable transition towards private property titles faces the pervasiveness of the latter in the opinions of international decision-makers, African executives… and of the experts who determine research funding.
What place for the issues of identity and citizenship?
At the same time, land policies, still seen from the narrow viewpoint of ownership or titling, have not integrated the issues of identity or citizenship, which are equally important elements of a “land reform”. Yet it is the recognition and securing of the sociopolitical dimension of the bundle of rights and obligations towards local authorities that constitute the conditions for securing the strictly land dimension of the bundle of rights through legal recognition. In a sociopolitical context where identity, local citizenship, social conditions for access to land and the content of rights can hardly be dissociated, it is more urgent to pacify and secure the relationships between people over land than to formalize the rights that people think they have over land.
This is particularly the case in the now frequent situations whereby transfers of rights between natives and migrants are common and monetarized. In such situations, the following lessons can be learned from qualitative social science research:
- 1. It is not during the registration phase that rights can be clarified in the best conditions, but during a transition pre-legalization phase for rights where public action should assume its full importance (example of Côte d’Ivoire);
- 2. The identification of land rights and local land information management would benefit from taking account of the principles of justice generally accepted locally;
- 3. Land reforms would benefit from being combined with a democratization of the village and communal mode of governance so that the government of resources and that of men evolve at the same time.