LAND LAW IN BURUNDI: LEGAL AND SOCIAL ORDERING OF LAND TENURE IN HISTORICAL AND CONTEMPORARY BURUNDI by Erangois-Ao Barras Thesis submitted for the Degree of PhD in the Department of Law, School of Oriental and African Studies, University of London June 1982 ProQuest Number: 11010588 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010588 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 TABLE OF CONTENTS Page ABSTRACT 3 ACKNOWLEDGEMENTS 10 LIST OF ABBREVIATIONS 1 1 LIST OF SKETCHES 13 LIST OF MAPS lU LIST OF PHOTOGRAPHS 15 LIST OF DOCUMENTS l 6 TABLE OF STATUTES AND ORDERS 18 TABLE OF CASES COLLECTED 23 Preliminary Remarks 31 1. General introduction 31 2. The use of Kirundi terminology ^3 3. Structure of the enquiry ^ PART I : SOME GENERAL INFORMATION ON BURUNDI IN 5 1 RELATION TO THE PRESENT STUDY Chapter 1 : Geography and Economy of Burundi 51 Chapter 2 : A Brief Account of the History of Burundi 5 6 A. Pre-colonial Burundi 5 6 B. The colonial Burundi period 6 3 C. Independent Burundi 6 6 Chapter 3 : Some Characteristics of Burundi Lav and 6 7 Administration of Justice A 0 Pre-colonial and colonial Burundi 6 7 B. Independent Burundi 71 Co The daily process of settlement of dispute in 75 contemporary Burundi 1. The unofficial mediation process of the abashingantahe 75 2. The various grades of court 80 3 Page Chapter h : The Significance of Land in Burundi and 8l Related Terminology A. Symbolic, social and economic significance of land 8 l Bo Terminology related to land 8 8 lo Geographical terminology 8 9 2. Vegetation terminology 90 3» Social terminology 93 Chapter 5 : Legal Pluralism and Interests over Land 95 PART II : THE FIELD OF WRITTEN LAW 99 Chapter 6 : Written Land Law during the Colonial Period 99 A. The German period 99 B. The Belgian period 101 1. Public land 106 2c Native land 109 3. Registered land 110 (i) Commercial, industrial and residential grants in urban districts and commercial centres (ii) Agricultural grants (iii) Grants to missions Chapter 7 : Written Land Lav in Present-day Burundi 122 A. Organization of the Department of Land Affairs 12U and Land Surveying B. The main types of interests over land granted 126 according to written law (1) Freehold ownership (droit de propriete) 127 (2) Tenancy (location) 131 (3) The droit de superficie 132 (U) The droit d1emphytheose 132 (5) The autorisation d*occupation et d*usage 133 Co Registered land in contemporary Burunti 13^ PART III : THE FIELD OF CUSTOMARY LAW 138 Chapter 8 : Various Approaches’ to Customary Land Law 138 A» The attitude of colonial authorities towards 138 customary land law Bo The fate of customary land law in independent Burundi 1^ C. Towards a definition of customary interests over land 1^8 the concept of nyen* itongo (1) The nature of the interests over'land he.Id by the ny. ut * itongo 1 5 3 (2 ) The origin of the interests over land held by the nyen ’ itongo 155 (3) The proofs of the interests over land held by the nyen 1 1 5 6 itongo: the customary procedure by which one becomes n y e n 1itongo. {h) The loss of the interests over land held by the nyen* 1 5 7 itongo. 4 Page Chapter 9 : ?o J. 1 1 i co-A dm i n £ & t ra t .i. ve Authorities as Holders p 6 t of Customary Interests over land Ao Interests over land held by political authorities l 6 U in pre-colonial and colonial Burundi lo The forms of native political control 1 7 I+ over L'..i: (a) Allotment of non-granted laud to subjects 17^ (b) Control over land abandoned by subjects (c) Control over land .loft without heirs 1 7 8 (d) Confiscation of landed property as penalty ( i.) The concept of kunyaga (ii) Limits on arbitrary actions of political authorities (e) Collection of tribute and performance of l 8 U work duties by subjects (f) Control over the legal ordering of land 1 8 7 tenure through the settlement of land disputes (g) Control over the conveyance of direct 1 8 8 control interests over land held by subjects by means of contract and will (i) Control over conveyance by means of contract (ii) Control over conveyance by means of will 2. Specific interests over land held by the Mwami, 191 chiefs and sub-chiefs I„ The MwamiTs interests over land 191 a. General remarks on the Mwami's interests over land b. The effective exercise of the Mwami’s 193 interests over land (i) Territories conceded to chiefs (ii) The M w a m i !s chiefdom (ii.i) The various royal estates scattered all over Burundi IIo The chief’s interests over land 198 III. The sub-chief’s interests over land 20^ B. Interests held over land by political administrative 206 authorities in independent Burundi Chapter 10 : Groups as Holders of Customary Interests over Land 21^ A. Interests over land held by the whole community 2lb 1. Grazing rights 2lb 2. Hunting rights 217 3. Rights over mineral deposits 217 b. Rights to collect firewood 218 5u Rights over water 218 6 . Rights of way 218 B. Interests over land held by kinship groups 219 1. The clan 219 2. The localized patrilineage 220 3. The local kin group 223 b. The household 225 5 Page Chapter 11 : Individuals as Holders of Customary Interests 226 over Land originating in Kinship A. The concept of itongo ry'umuryango 229 (1) Its definition 229 (2) The father as nyen'itongo ry1umuryango 230 B. The distribution of benefit interests over itongo 235 umuryango lc The distribution of benefit interests within the family 236 (a) Allocation of a plot to children for 237 educational purposes (b) Allocation of a plot to one of the spouses 238 (c) Allocation of land to sons who are about to 239 get married (d) Allocation of a plot to a married daughter 2^1 (e) Allocation of a plot to a married daughter 2k2 who does not receive the customary visits and gifts from her paternal family (f) Allocation of a plot to a divorced, widowed 2kk or unmarried daughter (g) Allocation of land to a repudiated woman 251 with children who remains on her husband's holding (h) Allocation of land to the various wives of 253 a polygamous household (j) Allocation of land to a relative 25^ C. The main principles related to the conveyance of a 255 direct control interest over itongo ry'umuryango 1. Gift of land which is part of itongo ry*umuryango 255 (a) Gift of land within the family 256 (b) Gift of land outside the family 257 2. Sale of land which is part of itongo ry*umuryango 2 5 8 3. Conveyance of direct control interest over land 259 by way of succession (a) The basic principles of the inheritance of 2 6 0 landed property (b) Particular situations related to the 2 6 2 inheritance of landed property (i) Children.'issued frosa polygamous unions as* 2 6 3 .heirs to landed property (ii) Daughters as heirs to landed property 26k (iii) Children of diYorced parents as heirs 268 to landed property (iv) Natural children as heirs to landed 271 property (v) Orphans as heirs to landed prope, rty 2 7 8 (vi) Family members as heirs to landed 28l property when the nyen'itongo has died without offspring (vii) The widow as heir to landed property 2 8 3 6 Page (c) The powers of the testator 286 (i) The will in Burundi customary law 286 (ii) The main acts of the testator 2 8 9 (1) The allocation of specific shares to legitimate heirs (2) The appointment of heirs other than the legitimate heirs (3) Disinheritance of a legitimate heir (d) The various states of distribution of landed 2 9 9 property through succession (e) Some effects of the development of the customary 3 0 3 rules governing inheritance on land tenure (i) The influence of the new types of land 3 0 U exploitation on inheritance rules (ii) The influence of the evolution of 3 0 5 inheritance rules on land tenure Chapter 12 : Individuals As holders of Customary Interests 306 over Land originating in a Grant from a Political Authority A. The various ways of obtaining land from a political 306 authority in Burundi before Independence B. The allotment procedure 3 0 9 C. The grant of uncleared land (itongo ry^nyicire) 3 1 ^ D. Grants by the State in present-day Burundi 3 1 5 Chapter 13 : Individuals as Holders of Customary Interests 3 1 7 over Land originating in Contract A. Direct control interest over land acquired by 3 1 9 way of exchange Bo Direct control interest over land acquired by way 3 2 1 of purchase Co Direct control interest over land acquired by way of gift 3 3 0 Do Benefit interest over land acquired by way of loan 3 3 1 Eo Benefit interest over land acquired by way of renting 3 3 5 lo The traditional renting agreement with a rent in kind 3 3 6 2„ The modern renting agreement with a rent in cash 3 3 8 F.