Making the case for a legal and urban form for popular urban land rights in West Africa

Jean-François TRIBILLON, 2014

Many inhabitants of African cities have precarious housing situations, whether they are unstable tenants in often appalling rentals, at the mercy of their landlords, or whether they have built on land plots bought here and there from their alleged owners or from traditional chiefs - clandestine developers.

This article seeks to sketch out answers to the following question: what kind of land tenure recognition and registration¹ system would effectively enforce urban land rights? For lack of a more appropriate term, these rights are here further qualified as “popular” since they are meant to benefit the inhabitants of many neighbourhoods who do not have the social, cultural and economic possibility to make their land practices fit within the legal framework set out by written law and implemented by State bureaucracy.

This outline will draw on the lessons learned from recent experiences in Africa and Madagascar which aimed at securing these rights, without going into the details of these experiences.

Legal Aspect

From Urban Land Legitimacy to Urban Land Rights}

It seems impossible to legally secure urban land rights without appealing to popular urban land legitimacy, which must be accounted for in these rights.

Land users could thus claim a double legitimacy and express it most straightforwardly (this is the user speaking):

When I purchased my plot of land, I went through the administrative procedures and paperwork - such as: having the town register the acquisition title - which is something that any man or woman of my status must do (social and legal legitimacy);

then I did what any head of household my age does: I had to build a house for my family, since this is my duty as an adult. So I did as many others have done, I built my home on this land, which is located in our neighbourhood (most of us come from the same province so it is safer and easier to help each other out). This neighbourhood is connected to other neighbourhoods and is part of our city”. (urban legitimacy). All things being equal, the same rationale is valid for setting up a small house with a store or a small house with a workshop.

This legitimacy has to do with performing the “correct” land-related actions “properly”. It is part of non scholarly law, neither written nor customary (in the sense of African rural traditions) even though it is sometimes indirectly inspired by customary law. It is a law developed according to uses rather than traditions.

As a starting point, a radical contrast within African cities must be noted. This is the contrast between:

• on the one hand, a land legality (land law) and urban legality (urban planning laws and legally approved urban planning documents to implement this law) set forth by public institutions and authorities and present in the official or legal city;

• on the other hand, a popular land legitimacy (land appropriation) and popular urban legitimacy (land use and development of neighbourhoods) extant in the most underprivileged neighbourhoods - the illegal city, according to public institutions and authorities.

We are setting forth this hypothesis of legitimacy in a legal space opened by legal science: the law is not exclusively written law - which the most powerful economic or political African players refrain from applying to themselves as a way of demonstrating their strength and power - it also lies in the most commonly accepted behavioural standards. These standards are neither explicit nor organised. They are a source of “what should be done and how a reasonable man or woman of low income should behave”, rather than a set of organised and classified standards, which is the main characteristic of law and more generally legality.

So the question must be put differently: how can this land legitimacy be strengthened for city dwellers in underprivileged neighbourhoods, to guarantee minimum land tenure security? This means doing away with the permanent threat of eviction, defined as the obligation to vacate a location when ordered to by the holder of a legal title or a legal mandate for developing the area.

This legitimacy can be improperly described as the possibility of invoking legal principles from: - human rights declarations which have scattered different fundamental principles throughout the galaxy of universal law; - the persistence of rural customary land law even though it has been put at risk by urbanisation; - the “nature of things” (observing social practices and creating legal acknowledgments of those considered “fair”, as Roman jurists did) as it becomes “natural law”, which could give a legal grounding to existing popular urban land practices; - the “state of necessity” of households who wish to build their home but cannot find a matching legal land supply and end up having to take what they cannot obtain legally; - the Muslim legal doctrine of “vivification”: by settling and building on land, occupants “enliven” the soil and thus are worthy of certain rights.

A popular urban land law could be built on this legal foundation. This could be the basis used to identify and manage/preserve individual popular land rights.

The Obsessive Hunt for the Owner

Distracting the investigating jurist from his/her obstinate and somewhat neurotic hunt for the owner among the different users is a requirement to secure these rights. Ownership is promoted everywhere, even in popular land law which, for instance, simply refers to the “boss” of a place, someone people turn to in order to solve conflicts and organise the use of space. But this is far from making this person an owner endowed with Napoleonic exclusivity over the land. This conclusion should not be leaped to, especially in “poor” urban environments. Anyone can ask this boss for permission to settle somewhere out of the way or appeal to a land-based hospitality which can last.

In other terms, popular land law allows for significant flexibility in the forms of occupation of urban land, which is a quality that should be preserved.

Political and Urban Planning Aspects

According to the dictionary, security is akin to a “horizon”: it is an imaginary goal, impossible to achieve, which recedes as one moves towards it².

Experts, bankers and jurists all agree that land tenure security can only be maximal. What does maximal land tenure security mean? Registration on the Land Register. This is also the solution set forth by land administrations: registration is the only way to avert uncertainty and risk. In its current implementation, registration is an ideal far beyond the reach of popular land holders.

Security From Whom and Against What?

Experience shows that land tenure security is above all about being protected, defended. From whom? (i) neighbours, (ii) local authorities, (iii) state authorities, (iv) land wheeler-dealers.

Neighbours: Neighbours may try to push their fence back, they may cause all sorts of problems, as people say, but the bottom line is their solidarity. Therefore the technique of “participatory enumeration », based on neighbours’ consent, is not decisive since they always agree.

State authorities: Let’s face it: resisting state authorities’ claims with a land “title” grounded in popular land legitimacy is pretty much pointless. On the contrary, state authorities are less assertive when they face collective defence actions or when delegations are prepared to jostle authorities.

Defence against local authorities is undoubtedly both the core issue and its solution: they do not serve the same interests and therefore the same ideology as state authorities. Action should be first and foremost aimed at local authorities, which implies negotiating and reaching agreements with them. (see below).

Why Do People Need Land Tenure Security?

What would the major benefits be for the user (incentives to formally establish his/her rights), impelling him/her to achieve land tenure security for the property?

• Facilitate access to mortgage credit? The beneficiaries of this security are in a too dire economical and social situation for a mortgage to actually provide them with credits;

• Facilitate the transmission of inheritance to heirs? The legal facility provided includes numerous institutional and tax setbacks, it might not be worth the trouble;

• Keeping one’s home? This is definitely the kind of security people may seek.

The Instigator, an Outsider to the Social Fabric

The instigator of the campaigns in favour of popular urban land rights is in itself often a political problem, as current campaigns show. These are often international bodies which propagate ideologies far removed from the concerns of the country and are fond of steamroller campaigns which cannot be openly criticized since they know what is best for people. These are actually quite fragile programmes. Minor political shifts are enough to call them into question. More modest programmes, better adjusted to local social demands, would truly be a positive development.

Dangers and Risks of Blocking Urban Planning

Classical legalisation through the recognition of property rights obviously makes urban development projects more difficult and sometimes even impossible. By making occupants owners, subsequent development projects for districts created spontaneously and without any initial planning are de facto (and this “de facto” must be stressed) impossible unless the appropriation is immediately conditioned to planning and development projects. The price to pay for these projects is usually steep, meaning they are used to punish occupants and to force them to let other social groups settle on the land instead of them. Agnès Deboulet’s article on this topic criticizes the excessively large roads being opened in districts undergoing reorganisation in Cairo. She interprets this as a kind of punishment inflicted by the state technocracy on these ill-born and ill-faring neighbourhoods³.

The Extension of the Market Sphere

Legalising popular occupation entails a major risk: the theoretical and practical impossibility of limiting the effect of this policy to the already existing city. It leads to the accumulation of wealth for all urban and periurban popular tenure. This in turn obviously entails (de facto, once again) major difficulties for planning urban spreading and the city as it develops.

Four Ways to Sidestep these Problems

First Possibility: Land Law Conditioned by Urban Planning

From a legal standpoint, we have advocated a land tenure security policy based on the concrete expression of popular land legitimacy and stemming from a serious investigation, in compliance with due procedure, of land occupancy. This is what we are calling the legal principle.

We have also stressed the risks this involves for urban planning: land tenure security could jeopardise all projects for enhancing habitat and development at the district level, as well as all urban planning endeavours at the city level.

We are positing here a possibility: deliberately limiting the legal principle to avert the planning risk. Urban space is at stake, and urban planning is what makes urban space “civilised”. Otherwise, cities are just a shapeless cluster of activities and housing which are not productive and are not quality-oriented. A city is a framework for producing and living; it must be able to foresee its future to a certain extent and prevent serious complications. It is not a simple shelter or a field for building shacks.

A compromise could be reached by properly defining popular land law and its scope: it would only be effective if applied to a developed space, if possible with the support of the rights’ holders. Therefore, inasmuch as land law applies to a non developed or insufficiently developed space, it remains in reality (a right on a property) merely virtual (it is a virtual right constituted by the relationship between a specifically defined person and an imperfectly defined land tenure space). The difficulty is giving this idea a legal form.

A virtual right over an undefined plot of land located in a district most often created through spontaneous settlements would allow its holder to participate directly or indirectly in the development of the area or neighbourhood. Thus, the planning would strengthen this right and make it a real, complete and undividable right, which can be registered.

We must admit that there is no existing technical characterisation of this right pending equipped and developed land: would it be a rights-debt held against the local authority, which would have an obligation to perform the necessary planning? Would it be a real estate rights-debt that would have to be combined with the right to the city? This real estate right-debt must nevertheless be considered as a right public authority could only get rid of by expropriating or purchasing the land, even if the property rights over clearly defined plots would only become effective after the development works authorised by the public authority (the group of virtual rights’ holders can file a request for planning) or, as would be more likely, after a concerted development project is accepted as a public operation by the public authority.

Thus, the ultimate and definite protection of “popular” land law would crown a joint and successful planning endeavour. This protection is concretely expressed by the access of the beneficiaries themselves, or thanks to their efforts and their participation alongside public authority, to land rights which can be presented as real, complete, ownership rights over a surface area, maybe even property.

Second Possibility: Institutional Mechanisms

Experience has made one thing quite clear: up until now, land related administrations have not been able to carry out urban land reforms. They cannot be expected to suddenly break with this and do the opposite of what they have been doing for a century and a half: ignoring popular interest. The only institutions able to head similar operations are urban municipalities. These are the only authorities able to run restructuring operations in makeshift districts which already exist or are being created, to map out land tenure and establish registries for property and people.

Third Possibility: an Unlikely Urban Reform Law?

In order to recognize popular urban rights, bills would have to include:

• Allowing the poor to legitimately occupy nice locations and benefit from enforceable land rights;

• The principle of a virtual popular right which would become a consolidated popular right after the space has been organised;

• The principle of granting quasi-ownership rights to several users of the same plot without dividing it or creating undivided or joint ownership;

• The principle of municipal competence over these issues;

• Encouraging joint development initiatives

Let’s not get carried away, this is the kind of law which will never be voted in an ordinary situation. It could be passed forcefully but with administration deciding clearly not to enforce it. So we must do without it. The radical option of building doctrine around the notion of popular land legitimacy must be embraced. Experiences must be carried out before a law can be drafted enshrining these practices. Experiment first, legislate later; the law exists to set in stone the lessons learned from experience.</multi>