Aspects and Characteristics of State-Owned Land in West Africa 1 by Gérard Chouquer , January 2011

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BRIEFING NOTES to improve our understanding and “Land Tenure and Development” Technical Committee ability to ask the right questions and take effective action on land matters in West Africa Aspects and characteristics of State-owned land in West Africa 1 by Gérard Chouquer , January 2011

West African land regimes are W hen we talk about ‘State-owned  goods assigned for individual pub- based on particular constructs of land’ we mean the regime for lic use (cemeteries, market places, State-owned land. This paper goods that belong to public bodies. metered parking, etc.); This regime has a long and very rich aims to clarify the different  goods allocated for a public serv- history, and encompasses a wide vari- conceptions of State-owned land ice, provided they relate to the ety of realities on different continents. so that we can better assess their public service in question and are implications for land policies and In European countries and their former developed for this purpose (such as understand the nature of this colonies, State-owned land has taken the land needed to build and de- various forms according to the nature velop railways, gas pipelines, elec- type of land in Africa. of the rights held by the public author- tric lines, etc.). ities: semi-feudal (seigneurial), colonial, public, private, and so on. But even Depending on the type of use for this historical typology could be im- which it is allocated or the type of proved, and the need for clarifi cation space concerned, public land is cat- is growing as new concepts emerge egorised as maritime, aerial, riverine, in Africa, since the existence of sev- terrestrial, personal or military. eral defi nitions can lead to ambiguity Public land is defi ned in contrast to State land, which refers to the State’s Public lands private assets: goods that belong to the State and which it holds and manag- In many countries, land assets that be- es under the same conditions as goods long to the State but are allocated for held by individuals. Unlike goods in the public use are known as public lands. public domain, those in the private do- Public land assets are covered by a par- main can be transferred, which means ticular regime of public law, which is that the State can rent or sell its own designed to protect and maintain their Production coordinated by: assets to individuals. This category also allocation for public use. Therefore, includes rural land that the State can goods in the public domain are inal- assign to individuals, or urban land that ienable (the State cannot sell them or communes can transfer to individuals transfer their ownership). by parcelling it up and selling it off for Public lands include: development (lotissement).  goods designated for collective 1 Gérard Chouquer, Historian, CNRS and France public use, such as roadways and International Expertise Foncière (FIEF): sea shores; [email protected] 2 BRIEFING NOTES to improve our understanding and ability to ask the right questions and take effective action on land matters in West Africa

Land monopolies

Apparently not content with the clas- sic distinction between public and private State land, African countries have invented new concepts of State land. These need to be clarified and ex- plained, especially the concept of national lands. The notion of national lands or public national lands that appeared in the legislation of numerous African countries in the mid-1960s represented a major, but far from homogenous, in- novation. National lands amount to a State monopoly on land since the State holds all or some of the land in the country, not in its own name, but Fouta Djalon, Guinea. Diffuse land occupation creates an appearance of vacant lands. in the name of the nation that it rep- capture of Google earth resents. A. Rochegude and C. Plançon defi ne this kind of land as follows: >> National lands: “A new concept Examples of total State vate local government lands, and frequently used in Africa (or at least monopolies on land land held by other natural and le- francophone Africa), which can cov- gal bodies. Certain countries have opted for com- er a wide range of legal situations. For  As in Mali, national lands in Mo- prehensive State ownership of land, example, in Mali national land consti- zambique constitute a broader cat- such as the Fundo Estatal de Terras in tutes a whole legal framework cover- egory than public lands, expressed Mozambique, the Património comun ing every status of land (which means in the concept of Fundo Estatal de de todo o Povo in Guinea Bissau, or that all land is included in this catego- Terras, (Domínio Público). There- the domaine national in Mali. A com- ry), while in Senegal it refers to the sta- fore, public lands should not be parison of the regimes in some of tus of all lands that are not part of the confused with the larger, overarch- these countries clearly illustrates the public domain or any legally appropri- ing category of national lands, to potential for ambiguity in the concept ated holding (that is to say titled pri- which the Mozambican State has of national lands. vate property).” a clear (and unusual) constitution-  In Guinea Bissau, the law states If we take this defi nition as our starting al claim, and which encompasses that land is “the property of the point we can envisage two hypotheti- a public domain that is not funda- State and the common heritage cal situations. One where there is a to- mentally different to that of many of the entire population”. The tal monopoly on land, and all lands fall other countries. State may grant individuals private into the legal category of national land; use rights to facilitate productive and the other where there is a partial and social activities on land. This Examples of partial State monopoly, and only certain areas are is mainly done through common monopolies on land incorporated into national lands. This use or by assigning land. concept of national land is usually ac- In some countries certain lands are companied by a system of concessions  Mali’s Land Code stipulates that classifi ed as national land (domaine or use rights which regulate the way all land is included in its nation- foncier national or domain national). that the State makes land available for al lands; that is to say, public and This category, which does not cover use by other, mainly individual, actors. private State lands, public and pri- all the land in the country and should Aspects and characteristics of State-owned land in West Africa 3

not be confused with public or private registry” when the law came into belong the State’s public or pri- State lands, includes any land that is force. Therefore, national lands in vate domain. In reality, this means not registered and is therefore consid- Senegal include lands formerly held that national lands are made up of ered vacant and ownerless. This type according to customary principles former customary lands (which are of regime exists in countries such as that the State holds in the name of not registered in the name of the Senegal, Togo, Cameroon and Gabon. the nation in order “to ensure that State or individuals). they are used judiciously and pro- Based on the principles of customary ductively, in accordance with de- land management, this approach to Ideas implicit in the State velopment plans (…)”. land management aims to establish monopoly on land some kind of ‘national land reserves’ With such use in mind, national by incorporating customary lands that lands are classifi ed in four catego- According to H. Ouedraogo, the no- are deemed to be unused or insuf- ries: urban areas, classifi ed areas, tion of ‘national lands’ is tied up with fi ciently used into a ‘national estate’ village lands and pioneer zones. the post-colonial history of the states that can be allocated for rural devel- This last category mainly relates to concerned. opment operations. land that can be developed in ac- >> “Emerging from independ- cordance with development plans;  In Senegal, which was the first ence with dreams of economic de- land in these areas is allocated by West African country to enshrine velopment powered by an agricultur- decree to rural communities, co- this concept in law in 1964, na- al base, States in the [West African] operative associations or organisa- tional land automatically includes sub-region preferred to work with land tions created by the government. “all land that is not classifi ed as maps so that they could redistribute being in the public domain, is not  In Togo, ‘national lands’ include all land to actors deemed capable of en- registered or whose ownership has land that has not been appropri- gaging with modern methods of ag- not been recorded in the mortgage ated by individuals and does not ricultural production”.

The concept of State-owned land was originally unilateral, in that the State Impression of vacancy contradicts with the detailed study of land plots. capture of Google earth could use the notion of vacant lands to decide that it alone had the right

Togo Togo to determine how such land is used. Designating land as vacant and incorporating it into the national domain avoided the need to go through strict and restrictive procedures for expropri- ation on the grounds of public utility. These were the after-effects of colonial processes: reasoning based on the colonial regime of registration as the source of all legal land tenure. Every- thing was done as if this had regulat- ed the status of all land that was nor- mally occupied, while other land was deemed to be free and vacant. It is said that things would be different if the people who exercised customary rights could produce titles, but since they cannot do so—due to the failure of the registration process launched 4 Aspects and characteristics of State-owned land in West Africa

during the colonial period—govern- ments can automatically assume that FOR FURTHER INFORMATION any unregistered land belongs to the State. However, various countries are >> Large-scale land appropriations. Analysis of the phenomenon and starting to make perceptible progress proposed guidelines for future action, “Land Tenure and Development” Technical Committee (AFD-MAEE), June 2010, 56 p. in recognising customary rights. www.foncier-developpement.org/vie-des-reseaux/le-projet-appui-a-lelaboration- The assertion that land is unoccu- des-politiques-foncieres/les-appropriations-de-terres-a-grande-echelle-analyse-du- phenomene-et-propositions-dorientations pied—regardless of whether or not this is actually the case—leads to its >> OUEDRAOGO Hubert, La question foncière rurale face aux défi s de l’intégration régionale dans l’espace UEMOA, WAEMU, World Bank, appropriation through colonial or post- Ouagadougou 2009, 77 p. colonial State ownership. Land is given www.hubrural.org/IMG/pdf/Rapport_UEMOA_Finalise_0809_Edited.pdf State-owned status because it is seen >> ROCHEGUDE Alain and PLANÇON Caroline, Décentralisation, acteurs or deemed to be unoccupied. There- locaux et foncier, Fiches Pays, “Land Tenure and Development” Technical fore, putting the concept of State or Committee, November 2009, 445 p. State-owned lands into practice is an www.foncier-developpement.org/outils/cadres-legislatifs-et-institutionnels/index.html extremely delicate matter. 

ORIGINAL VERSION IN FRENCH “Aspects et particularités de la domanialité en Afrique de l’Ouest”, translated by Lou Leask.

These pedagogic factsheets were produced with the support of the Technical Committee on “Land Tenure & Develospment” and the “Land Technical Committee Tenure Policy Elaboration Support” mobilizing project ﬁ nanced by the MINISTÈRE Agence Française de Développement. These factsheets can be downloaded DES AFFAIRES ÉTRANGÈRES in their entirety from the www.foncier-developpement.org web portal. ET EUROPÉENNES

BRIEFING NOTES to improve our understanding and ability to ask the right questions and take effective action on land matters in West Africa