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Réflexions sur l'information foncière et les stratégies adoptées en Afrique subsaharienne

La sécurisation foncière, en particulier celles des groupes les plus vulnérables du point de vue économique et social, commence à être prise au sérieux - d'une manière plus pragmatique et moins dogmatique - en matière de politiques foncières en Afrique subsaharienne. Ces politiques doivent reposer sur des analyses solides, qui doivent à leur tour être établies sur des données fiables en matière d'accès, de distribution et de transfert de droits fonciers. Il n'en reste pas moins que le problème de l'information foncière est en général méconnu, ou du moins sous-estimé. La plupart des Africains vivent dans une conjoncture caractérisée par l'absence de formalités juridiques ainsi que par la marginalité, et cet état de choses n'est établi que d'une manière abstraite et non dûment étayé, à titre d'exemple, pour autant qu'il s'agisse de concentration de terres ou de pluralisme juridique. La pénurie de données et l'absence de politiques foncières contribuent à maintenir des personnes sur les marges d'une véritable citoyenneté, où elles existent en tant que sujets et non en tant que citoyens. Envisager les politiques gouvernementales comme un processus de négociation et une stratégie visant à assurer une légitimité, exige inévitablement de repenser les attributions d'un système d'informations incorporé à un flux de pratiques, ainsi que la nature des acquis et des informations en matière foncière. Les questions fondamentales qui se posent aux gouvernements, tels les relations rurales par rapport aux relations urbaines, la nature des droits et des pouvoirs «coutumiers», le rôle et les possibilités offertes par les politiques de réforme et de décentralisation agraires, doivent être interprétées en ce sens.

La información agrícola y la toma de decisiones en África subsahariana

La cuestión de la garantía de la tenencia de la tierra, en especial para los grupos económica y socialmente más vulnerables, está empezando a ser considerada de una manera más pragmática y menos dogmática en las políticas de tenencia agrícola de los países del África subsahariana. Estas políticas deberían sustentarse en análisis exhaustivos, que a su vez deberían basarse en datos fiables sobre la distribución y las cesiones de los derechos territoriales. No obstante, la información territorial disponible es ampliamente ignorada o, como mínimo, desestimada. La mayoría de los africanos vive en una situación de abandono y marginalidad jurídica, que sólo es reconocida de manera abstracta pero no esté documentada, por ejemplo en lo que se refiere a la concentración de las tierras y al pluralismo jurídico. La escasez de datos y la falta de políticas de tenencia agrícola dan pie a que las personas se mantengan al margen de una auténtica ciudadanía, por lo que existen más bien como sujetos que como ciudadanos. La consideración de las políticas públicas como procesos negociados y de legitimización requiere una nueva orientación de la información sobre tenencia. Las cuestiones clave como las relaciones rurales/urbanas, la naturaleza de los derechos consuetudinarios y de las autoridades, el papel de la posible reforma agraria y las políticas de descentralización deben contemplarse desde esta perspectiva.

Reflections on land information and policy-making in sub-Saharan Africa

P.-Y. Le Meur
Pierre-Yves Le Meur, Anthropologist, Research and Technological Exchange Group (GRET); Research Fellow, Institut de
recherche pour le développement (IRD), “Land regulations, public policies, actors” logic

The question of securing land tenure, particularly for the most economically and socially vulnerable groups, is beginning to be taken seriously - in a more pragmatic and less dogmatic fashion - in land tenure policies in sub-Saharan Africa. These policies should rely on solid analyse that must, in turn, be based on reliable data on access to and distribution and transfers of land rights. However, the land information issue is largely neglected, or at least underestimated. The corresponding dearth of data and lack of land tenure policies help keep the majority of Africans, who live in a situation of legal informality and marginality at the margins of true citizenship. This article addresses the intersections of the fragmented state of available information, formal and informal data-collecting and storage procedures, and land tenure policy-making, and argues that key policy issues such as rural-urban relations, the nature of “customary” rights and authorities and the role and potential of land reform and decentralization policies must be viewed in this perspective.


Under “Redefining land rights”, the 1989 World Bank report Sub-Saharan Africa: from crisis to sustainable growth stated: “Agricultural modernization combined with population pressure will make land titling necessary. Traditional tenure Systems need to be codified” (quoted in Peters, 2004). Ten years later, as Quan (2000) shows in a review of later World Bank policy papers, “the World Bank continues to view a framework of secure, transparent and enforceable property rights as the critical precondition for investment and economic growth. But they now recognise that property rights need not necessarily be individualised, and that security can be provided within customary tenure Systems”. The recent research report Land policies for growth and poverty reduction (World Bank, 2003) does not depart from this line. It links secure property rights with economic growth, poverty reduction, sustainable development and good governance, but sees an obstacle to these goals in Africa in the lack of legal recognition of customary tenure rather than customary tenure per se: “While tenure security affects farmers' investment behaviour, this does not necessarily require fully individualized rights or land titles” (World Bank, 2003; Fitzpatrick, 2005). In other words, the question of securing land tenure for rural producers and city inhabitants, in particular the most financially and socially vulnerable, is beginning to be taken seriously - in a more pragmatic and less dogmatic fashion - in land tenure policies. “In the last two decades, almost ail countries in sub-Saharan Africa have been undertaking land reform in one guise or another. The aims have been to promote economic growth, encourage more sustainable management, and reduce poverty” (Toulmin and Quan, 2000; see also Okoth-Ogendo, 1993; de Janvry et al, 2001; Cotula, Toumin and Hesse, 2004). Policies aiming to improve land tenure governance, especially regarding access to land for the poorest people, should rely on solid analyses and therefore on reliable data on access to, and distribution and transfers of, land rights. However, the land information issue is largely neglected, or at least underestimated. It is the case, for instance, with Poverty Reduction Strategy Papers (PRSPs),1 a flaw stressed by FAO discussion on PRSPs. In the policy research report quoted above (World Bank, 2003), the theme is evoked without being systematically tackled.

This is also the case at the national level, as shown by country studies on both Benin and South Africa. Lahiff (2005) observes that, in South Africa, “while a certain amount is known, both in the literature and among practitioners and decision makers, about the broad outlines of land administration in freehold and communal areas, much less is known about tenure data in general”.

This means that the majority of African people live in a situation of legal informality and marginality, which is only understood in an abstract way (policy-makers know that such people and situations exist), but their situation is not acknowledged or documented. Missing information contributes to maintaining such people at the margin of a true citizenship, as subjects rather than citizens. In this respect, one can argue that land is a human rights issue (see Wisborg, 2002).


Addressing African land tenure in general terms is difficult. There are stereotypical representations, such as the ones Lund (2000) questions, showing how false description and narratives can produce social effects when used as (implicit) theoretical guidelines for policy-making.

The deep differences between Benin and South Africa, as far as political history and land policy are concerned, render comparison complicated. Nevertheless, as suggested by Mamdani (1996), South African exceptionalism (as a settler colony and apartheid country) should be questioned. For him, the apartheid regime belongs to a general mode of governance based on the notion of a “bifurcated state” that combines direct and indirect rule. “Direct rule was the form of urban civil power. It was about the exclusion of natives from civil freedoms guaranteed to citizens in civil society. Indirect rule, however, signified a rural tribal authority. It was about incorporating natives into a state-enforced customary order. Reformulated, direct and indirect rule are better understood as variants of despotism: the former centralized, the latter decentralized”. Colonial powers relied on decentralized despotism to deal with the native question in rural areas, superimposing a rural/urban divide onto the citizen/subject demarcation. Postcolonial regimes evolved from this colonial matrix, either towards a decentralized conservative variant of despotism or a centralized radical one.

Mamdani's provocative theses have been widely discussed and criticized.2 Of interest here is the double idea of decentralized despotism and legal dualism with regard to land issue. Mamdani's major weakness is to take colonial discourses for granted -hence he overestimates the strength of the colonial state. In other words, if legal dualism exists at the formal level, the reality of land access and control is much more one of legal and institutional pluralism and hybridity. A second element, the rural/urban relation, is rather one of connection and flows of people, ideas and resources, than one of separation. This means that many urban dwellers are no more “citizens” than are rural populations, especially as far as land rights are concerned.

Furthermore, the notion of legal dualism has a sort of colonial fLavour and must not be taken at face value. It implies the existence of two distinct bodies of rules and authorities, each governing a separate domain of land tenure, the “customary” and the “modem” or “statutory” one. Actually, both domains are integrated within a common framework under the aegis of the state. There is, in this respect, only one source of law or “legal order,” and one could interpret the situation as a case of state legal centrism rather than a plurality (Griffiths, 1986; see Chanock, 1991, on colonial customary law).

The degree of autonomy of a so-called “customary” land tenure System is different from one country to another. There is never a complete disconnection, at least because the dualistic framework inherited from the colonial era originated in the state. However, access to and claims over land and natural resources largely function outside the reach of state administrations, even though their representatives intervene more or less informally in the local politics of rights recognition.


The nature of land tenure, the functioning of access and control of land, land policy and modalities of intervention ail influence information production and use. Ideally, public policies consist of choices made by decision-makers relying on the cross-cutting of available information and desirable outcomes. What is the relative weight of each factor in the process? Are decisions guided by a careful analysis of reliable data, or do they follow other agendas? Beyond the land tenure issue, this is a matter of conceptualizing policy production, particularly as regards the relationship between information and decision, or knowledge and power.

The linear progression from information production to decision-making and then assessment does not account for the much more diffuse, fragmented and negotiated reality. Mosse (2005), in his ethnography of policy and practice, goes one step forward: “Policy primarily functions to mobilise and maintain political support, that is to legitimate rather than to orientate practice”.3 The link between information and decision-making is a matter of negotiation, alliance and compromise, not a smooth and linear process of conceiving, programming and implementing. The nature of public policies as negotiated processes and legitimation strategies inevitably requires rethinking the position of information in the flow of practices that form them and the nature of land tenure knowledge and information. One dimension is the private or public character of the information on land tenure. This knowledge takes various forms and is used in different contexts for policy production and land management. Information can be strategically manipulated, controlled or monopolized by social actors depending on their interests, positions and goals. Ruptures in the chain of land data production and circulation can reflect technical and institutional dysfunction (staff recruiting, data conservation, actualization, etc.) as well as individual or collective strategies of control over information flows.

The state of both archives and the land information storage devices themselves is an indicator of whether land data are considered as a common, or public, good - a good that belongs to everyone, and therefore one for which no one feels responsible. Actually, beyond the inherent property of a common good (non-rivalness and non-excludability), one can define a common good by the fact that its value increases with the number of its users (Rose, 1994). In the case of land information, one could assert that free - or at least fluid - access to land tenure data (especially legal information) should globally increase land tenure security and thus equity, social peace, investment and wealth. But is this the case? Which actors and institutions would find their advantage in the common good of land tenure data? The common/individual and public/private divides are socially constructed and, as such, are a central policy issue.

Both a common good and privatized resource, land tenure is never an autonomous or free object. It is embedded in specific institutions and procedures ruling the way information will be processed and used. This means that a specific cut-out is presented according to the needs and functions of the institution producing land tenure data. This selectivity, in turn, contributes to the fragmentation of information and knowledge about land, and thus to a specific way of organizing, remembering and forgetting the very function of institutions, as Douglas (1987) aptly reminds us.

Furthermore, behind the seemingly “technical” procedures of specific data production for specific uses (e.g. taxation, legal, economic, land development), one can decipher a - generally latent, sometimes more explicit - conceptual or theoretical basis. What is often missing in formal land tenure data is the very fact that land tenure is a matter of social relations between social actors or groups about land or, more precisely, about knowledge, access, control and rights over landed resources. This raises questions about what land tenure data are, in relation to the embeddedness of land rights in specific social and political contexts, or what Lund (2002) calls “the symbiosis of property and authority”.4

In the case of South Africa, Lahiff (2005) comes to a similar conclusion with regard to land tenure data:

“In ways, it is misleading to speak of tenure data, in the conventional sense, with regard to South Africa's communal areas. Land rights in the communal areas generally derive from an individual's embeddedness within a given social context, be it a village, a tribe or other form of community. Unlike more formal, modem, Systems of tenure, communal land rights do not depend on an objective, verifiable document or other artefact, such as a title deed. Communal land rights are often effectively personal rights, only loosely connected to specific parcels of land. Land parcels may be demarcated on the ground, but are not necessarily measured, and neither the exact location, nor the boundary nor the extent of the plot may be recorded in any other form. Thus, for purposes of our analysis, it is important to distinguish between tenure data which is not easily available, due to poor recording or communication Systems, and data that simply does not exist in any objective sense.”


Land tenure information is heterogeneous, fragmented and scattered, as shown in the cases of both Benin and South Africa. Different categories of land tenure data have to be distinguished according to how they are produced.

Primary data are directly generated through procedures implemented or controlled by the land administration System: legislative texts (laws, decrees, acts); policy frameworks and texts (for instance, the White paper on South African land policy, Department of Land Affairs, 1997); land titles, deeds and administrative certificates (for instance, the Permit to Occupy in South Africa, the permis d'habiter in Benin); land sales agreements; cadastral maps; taxation registers; and written documents and decisions linked to the processing of confLicts by the land administration or courts of justice.

Other primary data are produced outside the formal land administration: “small papers” and various informal acts aiming at validating, at least locally, a land transaction; local conventions ruling the relations between autochthonous “customary landowners” and migrants; and written complaints and claims related to a land conflict.

Secondary land tenure data are also diverse. They are based on the processing of primary information: statistical databases; cadastral maps, global positioning Systems data and geographic information Systems; complex procedures - “chains of translation” - of land tenure data production and management (for instance the rural land plan and urban land register in Benin); results of quantitative surveys and qualitative enquiries, including studies carried out by or for development projects or natural resources management programmes; social science literature on land tenure; colonial and postcolonial archives; and texts produced locally or by native intellectuals about land tenure, settlement history, customary authorities and natural resources management. These sources often function as justifying discourses or local charters in the management of land, natural resources and migrants.

The diversity of land tenure data is matched by a corresponding diversity of data collection and localization (storage location and conditions). For some of these data, there is also a question of actualization, of the maintenance of a land information System, that should ideally take into account the question of land information accessibility. This brings us back to the double nature of land tenure data, as a common good and a strategic resource.

Also worth noting is that the primary and secondary data listed above are ail materialized as written objects or computerized data. But the actors involved in the land tenure arena have been developing a knowledge about land, as extremely diverse, unevenly distributed, often not formalized, and even not completely verbalized, and oriented towards practical ends.5 This less visible - and indeed invisible for many projects and administrations - part of land knowledge is intrinsically part of “everyday land governance” (Le Meur and Lund, 2003; Woodhouse, Bernstein and Hulme, 2000).


The development of a formal System of land ownership registration reflects a specific state project of territorial and local anchoring. In both countries (and the same observation could be made for the rest of sub-Saharan Africa), the formal System accounts for only one part of land property realities. There is, however, a big difference of scale and efficiency between Benin and South Africa.

The South African System of registration is described as highly efficient and reliable. However, it is:

…characterised by its exclusivity - a relatively low volume of transactions is being registered as a result of transactions between a relatively small part of the population. It is therefore easy to maintain a procedure of thorough examination of deeds by deeds registry personnel, resulting in the maintenance of the accuracy and reliability of the System. But a large part of the population - notably people in informal urban settlements and in rural areas where a System of communal property still prevails - is excluded from the deeds registration System.

(Pienaar, 2000, quoted in Lahiff, 2005)

Lahiff (2005) less identifies two major weak-nesses in the formal System based on the cadastre and the deeds registry:

The case of commercial farms is revealing. Farm dwellers constitute a vulnerable social group because they live under the threat of eviction. Furthermore, as their rights are encapsulated in a privately owned commercial farm, they actually do not have any visibility outside the boundaries of the farm and beyond their personal relationship with the landowner. They remain beyond the reach of state administration and decentralized bodies.

The diverse modalities of land tenure data production generate heterogeneous, dispersed files or fragments of files that have little connection (or poor connections) with each other. The state of each file depends on the combination of type of information and production and storage site. The combination of a sum of non-coordinated formal procedures and institutions results in a rather informal situation.

The limits of the formal and informal realms are not clear-cut, and in fact the two are often intertwined. To a certain extent, the distinction between formal and non-formal (or “customary”) land tenure Systems is linked to the urban-rural divide, which has framed the colonial, and, to a certain extent, postcolonial, legal history of many African countries. The categories cannot be superimposed, however. The degree of formality of urban land arrangements is very low in Benin, as well as in South African urban settlements, whereas commercial farming areas in South Africa combine formal and informal features. Although the farm boundaries and landowner are officially registered, what happens inside the limits remains out of the reach of formal procedures and is a matter of patron-client relationships between the landowner and the farm dwellers.

The last example leads us to the question of land tenure data in the informal or customary realm. As evoked above, it is not only a matter of degree of formality of land rights definition or registration. The polarity formal/informal requires clarification as far as land tenure data are concerned. Beyond the dual frame of reference conceptualizing a neat divide, the concrete functioning of land access and property is situated on a continuum of varying combinations of formal and informal, state and non-state, customary and modem, commoditized and non-commoditized elements.

In South Africa, the distribution of land administration institutions does not coincide with the divide between communal and non-communal land. This discrepancy generates confusion, ignorance of land tenure situations on the part of the administration, a lack of land tenure security and a great heterogeneity in the formalization of land rights. The polarity formal/informal is not a clear divide. The blurring of boundaries has several features:

Any attempt to reform land governance must take into account this pervasive legal and institutional pluralism. As Cousins puts it, following Berry's discussion on the failure of land reforms in Africa (see Berry, 2002a; 2002b), “Land conflicts are the outcomes of social processes, negotiations, and conflict resolution, and thus & institutions to mediate these processes, rather than the legal redefinition of rights, should be the focus of intervention” (Cousins, 2002). The statements may be too radical; however, the issue is crucial as far as land policy is concerned.


Reforms raise specific questions as far as land tenure data are concerned. Depending on the procedures and objectives, they create new rights either ex nihilo or by identifying and recognizing existing rights. This has consequences for the type of information needed and produced. Quan (2000) distinguishes six types of land reform undertaken in sub-Saharan Africa over the past 50 years (2000): (1) land nationalization; (2) tenure reform: land registration and titling; (3) agrarian reform: land redistribution and resettlement; (4) agrarian collectivization; (5) land development projects and protected areas; and (6) efforts to reaffirm and recognize customary rights. Land reform in the sense of a reallocation of land rights in order to effect the distribution of property within the society - whatever the orientation of the redistribution (towards more equity or more inequity) and its conception of property (more or less focused on ownership) -constitutes a specific policy option.

Lavigne Delville (1999), following Le Roy, noted three main trends in the legislative reforms of the 1990s in French-speaking West Africa (see Mortimore, 1997, on English-speaking West Africa), aimed at harmonizing the different landholding Systems (and thus close to Quan's sixth type):

The last option, subsidiarity, leads us to the political decentralization issue. Alden Willy (2003), in her review of decentralization of land administration and management in Africa, highlights the duality or plurality arising from the different modalities chosen:

One crucial issue for decentralized bodies is their ability to gain a central position within political arenas and, as a legitimate (democratically elected) institution, to polarize the debate and the circulation of information This means finding a way out of the current situations of non-hierarchized and poorly regulated institutional polycentrism that characterize political arenas in many African countries.

A last point about decentralization policy regards the polarity rural/urban. Development literature often emphasizes the phenomena of rural exodus and urbanization as being major trends everywhere in the developing world. In reality, these processes are composite and non-linear. Secondary poles are often the ones that develop the most rapidly, and population flows are fluctuating and reversible. Return to villages, cyclic migrations between cities and the countryside and intrarural migrations can also be seen. These phenomena make it difficult to grasp clearly the distinction between rural and urban. For these reasons, the problem of managing peri-urban areas is becoming central. It is not a matter of “peripheral areas” or “urban fringes”. It is at the heart of land tenure because it cuts across an ensemble of distinctions that influence public policy choices without truly being made explicit. The rural/urban pair forms the matrix of other duos implicitly seen as its counterparts - non-agricultural/agricultural, modern/customary, subdivided/unsubdivided, taxable/non-taxable - that in a way also reflect the citizen/subject distinction and the old (but renewed with the city/countryside pair) distinction between mastered/humanized space and not fully controlled space. Decentralized bodies could play a key role in bridging these gaps between urban and rural worlds, which are actually not lived as gaps.


Beyond differences among African countries, one can discern common issues concerning land tenure policy and information:

These points are to various extents linked to the subject/citizen debate, and thus to land as a human rights issue. This big question has to be reformulated into a series of concrete propositions to be tackled at the policy level: supporting decentralized bodies in their attempts at centralizing information produced by various state and non-state institutions; emphasizing the importance of storage and maintenance in land information Systems; making access to land information as easy as possible for institutions and persons; and training administration, court of justice, non-governmental organization and project staff in land issues. However, any recommendations must take into account that land information is a political affair that has to be dealt with through political choices, not only technical measures.


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1 The PRSP model, originally endorsed by the World Bank and the International Monetary Fund, was conceived to enhance the interaction between donors and recipient countries and to lead to greater effectiveness in poverty reduction.

2 See, for instance, Politique africaine No. 73 (1999) with critical comments by Ralph Austen, Frederik Cooper, Mariane Ferme and Jean Copans.

3 Mosse adopts a broad conception of “policy”: “embracing global policy as well as strategies, models and designs which express this locally”.

4 “The process of recognition of property rights by a politico-legal institution simultaneously constitutes a process of recognition of the legitimacy of this institution” (Lund, 2002).

5 See Ellen's definition of local knowledge (reply to Sillitoe, in Sillitoe, 1998): “local, orally transmitted, a consequence of practical engagement reinforced by experience, empirical rather than theoretical, repetitive, fluid and negotiable, shared but asymmetrically distributed, largely functional, and embedded in a more encompassing cultural matrix”.

6 “Today the administration of communal land is spread across a range of institutions such as tribal authorities and provincial departments of agriculture, but is in a state of collapse in most areas” (Lahiff, 2005).

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