© 2005 Cheibane Coulibaly THE CHALLENGE OF PROPERTY RIGHTS LEGISLATION IN WEST AFRICA FOR THE NEW CENTURY By Cheibane COULIBALY 1 - We live in a time of revolutionary change that requires more than incremental adjustments For our developing economies which remain predominantly rural, land, as a production asset, must be considered nowadays both as one of the fundamental stakes and a limiting factor – more than labor and capital. Even in a context of economic crisis, where access to the capital is otherwise difficult, land tenure continues to appear as the main constraint to manage natural resources almost everywhere. The considerable increase of the human and animal population makes pressure for land resources, which had not been so prominent in the past, very strong and systemic in various zones. Continuous resource scarcity engenders more and more frequent conflicts between the populations. And when these conflicts concern cross-border spaces, States are very fast involved, and can thus pose serious threats to peace in West Africa. Under the double pressure of increasing urbanization in West Africa and globalization, current government policies are denying local communities control of the land, and therefore, control over their conditions of life. These policies are for the most part inspired solely by the logic of the market economy. This logic leads to attempts to create a free market in land and to establish a rural credit system based on private property in which land will become the collateral for obtaining loans that will provide capital for financing rural development. However, the ideal conditions for (rural) credit to work on the basis of land as a guarantee require at least the following two prerequisites. • the elimination of the contradictions and confusions now existing between customary, religious, and state laws and the elaboration of a coherent land tenure system that will be based on agreement of all the parties, resolve contradictions in existing property rights regimes, and be enforceable. • the sorting out of property rights and creation of a system of property rights that will give property rights to individuals or a collective body,2thus dispelling potential conflicts between different claimants on the land. With increasingly heavy population pressures on the land, it will become increasingly uneconomic to continue to fragment communal land. Is it possible to meet these two pre-conditions in our region? Has it been done elsewhere and at what cost? These reflections suggest that we must now think more about these land tenure issues and how to deal with them. 2 – From State-owned land codes to decentralization as a panacea The post-colonial period experienced by our countries, although not very long, is rich in lessons. It seems clear that the shift from the former French colonial concept of “vacant lands without masters” to that of the State as owner of all the land through the enactment as land codes did not provide a solution to the land issue. The various land codes enacted before the 1990s had major weaknesses which acted as a constraint on development. Here are some of the weaknesses. 1 - the existence of different perspectives and rationales between these texts and those using the space at the local level; 2 - the difficulties in implementing the texts; - the absence of specific laws and regulations describing how the laws were to be implemented. - long and complicated administrative procedures; - contradictions between various texts; - texts and concepts are too technical and far removed from the language used by the rural populations. 3- The contradictions between the texts and development rationality. For example, when texts designed to protect natural resources, in fact, prevent them from being exploited, thus thwarting development.3At the end of the 1980's, researchers on land tenure in Africa were hopeful about various decentralization programs set up in West Africa. Many had recommended the end of state-ownership of land, and state-directed land codes and the elaboration of texts that would guarantee more flexibility in taking into account both local natural resources management rules and the interests of local communities. Decentralization ought to also permit the parties concerned to make choices concerning different land tenure options. • Options concerning property rights. Which property rights to secure-- ownership, access, use, right to sell? To whom should they be granted? Farmers, herders, fisherman using same community space?. How will this be done? • Options concerning land resources management: state or local management? • Options concerning conflict resolution: state laws and courts or conflict resolution mechanisms embedded in local institutions? • - Options concerning the role of the State: interventionist State or liberal regime emphasizing privatization of land resources? - Options in legal structure: rural code elaborated solely by the state or a land tenure charter based on opinions and consent of the local populations? As a matter of fact, decentralization was conceived as a sort of panacea for all the natural resource management problems. However, the land conflicts which various countries encountered during the implementation of the programs of decentralization, revealed that decentralization, like any type of administration, does not, by itself insure success. The first problem encountered by decentralization programs in the management of land resources is derived from the fact that these programs are based on rigid uniform rules that cannot be applied successfully in a context where institutional life is rich and varied and where structures are characterized by their capacity of resistance due to their flexibility. Thus, in most of these programs, all collectively-held resources are transformed into public goods managed by the state or the municipality. Such a method necessarily creates problems in a context regularly marked by the scarcity of resources (the case of the countries of Sahel) and where communities have created a rich and a long institutional tradition.4The other difficulty which our States are still facing in the management of land resources is the definition of the domains of responsibility: those of the State, the decentralized local institutions and the communities. West Africa States and those in power rarely resist the “totalitarian temptation” to put the accent