State property vs. customary ownership: a comparative framework in West Africa

ABSTRACT

This article examines relations between state and customary land claims in Francophone West Africa. This region, despite a broadly common legal heritage at the time of independence, experienced a wide variety of changes at the national scale to the point where these countries now form a full spectrum of statutory/customary relations. After a historical review of rural property rights in Francophone West Africa, this article proposes a typology of State vs. Customary ownership in the region with a focus on four exemplary cases: Burkina Faso, Côte d’Ivoire, Senegal, and Mauritania.

KEYWORDS:

• Customary rights
• rural land
• state property
• legal pluralism
• French West Africa
• land reforms

Acknowledgments

The author would like to thank Çağlar Keyder, Ricardo Laremont and William G. Martin for their comments on an earlier version of this paper, as well as JPS’ anonymous peer reviewers for their insightful comments and suggestions. All errors that remain are by the author.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Different colonies experienced the implementation of identical colonial laws in different way, depending on the colonizer’s interest in the land in question. One could, for example, contrast colonial interests in Côte d’Ivoire with that of Haute Volta. Additionally, as mentioned later on the diagram, Togo is somewhat on the side-lines of this history as it was never part of French West Africa and does not as a consequence have the same legal history.

2 As argued below, resolving the situation of legal pluralism necessitates to strike a compromise between state claims and customary claims, and even in cases where the state ‘fully recognizes’ all customary claims, some customary claims are always ignored, specifically those that overlap public lands such as river banks, coasts or land that was improved by the state.

3 The cost of registration could run from one-third to one-quarter of the value of the land (Crinot 1990).

4 Translation adapted by the author from a 1827 translation of the original 1804 code (Code Napoleon: Or the French Civil Code 1999).

5 Directorate of Land and State Assets.

6 Until the June 2018 land reform, rural land property was regulated by Edict No 12 on ‘land property and domain reform in Togo’ from 6 February 1974 (as it has been the case multiple times in Ivory Coast). Edict No 12 states in its articles 2 and 3:

Article 2. – The State guaranties the property rights of individuals or collectives who own a deed delivered according to the law. The State also guarantees the property rights of persons or collectives who can present a claim on exploited land.

Article 3. – Claimants are given a five-year period from the time of publication of the present Edict in order to ascertain their claim on any land that has already been exploited and which bear the marks of permanent individual or collective possession.

7 Togo – Loi n°2018-005 du 14 juin 2018 portant code foncier et domanial, article 5.

8 Law No 29-63/AN from 24 July 1963 (Journal Officiel de Haute-Volta of 17 August 1963, p. 73).

9 This reduction of the public domain is equally severe in the case of Niger, with the difference that instead of a hybrid system between communal and state law, customary landholding rights are recognized and enforced as such, without any process of formalization.

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Antoine Dolcerocca

Antoine Dolcerocca is Assistant Professor in the Department of Sociology at Middle East Technical University. He holds a PhD in sociology from Binghamton University. His research interests include political economy, the sociology of development, and rural property relations.