Legal Progress To Stop Land Grabbing in Benin
Éric AHOUMENOU, 2014
This article is part of the book Take Back the Land ! The Social Function of Land and Housing, Resistance and Alternatives, Passerelle, Ritimo/Aitec/Citego, March 2014.
A Situation Conducive to Land Disputes
During the colonial era, land was assigned for a trial period first: after a probationary period, the beneficiary was granted ownership if he had demonstrated his ability to value the land, by building on it or farming it.
Since 1965, the law allows the purchase of land tenure deeds. Several players intervened to transform the previous residential permits into land tenure deeds. Thus, today three different mechanisms for land tenure coexist: the customary system, based on oral tradition; the registration system; the residential permit system.
This diversity partly explains the regrettable land tenure insecurity: on the one hand, there is a lack of reliable and definite ownership deeds and on the other hand there are almost no graphic and literal documents inventorying all land properties and identifying their beneficiaries.
The following land tenure problems exist today in Benin:
People’s lack of knowledge of their rights and of the way judiciary institutions operate: this prevents people, especially the poorest, from obtaining their ownership deeds which prove ownership over their plots and allow them to perform the required administrative procedures.
The Beninese state’s inability to regulate land, to map out and keep a registry of urban centres which would, through the establishment of a permanent land agency, allow the implementation of a policy of granting ownership to the people to whom it may concern
A share of private savings is rendered useless because of land hoarding
Unbridled land speculation
The questioning of buyers’ rights by the vendors’ heirs.
In addition to these problems, other issues contribute to creating a situation of genuine land tenure insecurity:
Mistakes in rights bearers’ identification. There is no certainty regarding the vendor’s right to sell the land.
Poor identification of the land concerned by the transfer. The land people think they have bought is not always the same as that specified in the deed.
Even the administration considers that if a land tenure deed hasn’t been granted for 99% of the territory, it is still entitled to practice a kind of property right, which can include seizing the land if need be.
The New Land Code Seeks to Combat Land Grabbing
This is the context for the new law against mafia practices in rural and urban areas. This law aims at combating land swindling and limiting disputes which may be related to questioned property rights or to inheritance divisions as well as conflicts between land and livestock farmers over land.
The fact that only Beninese nationals can now purchase land in Benin, as long as the sale is for under 800 hectares of land and the aim is the direct use of the land, represents major legal progress.
The new land code establishes new bodies in charge of land matters: a Registry, in charge of all the administrative and technical certificates describing the land property; the National Land Agency (Agence nationale du domaine et du foncier, ANDF), the new land management agency; land management committees (Commissions de gestion foncière, CoGef) in each municipality.
It also creates sanctions and penalties if these provisions are not respected. This point caused heated debates during the National Assembly sessions on the adoption of this new land code.
Some articles in this code are truly groundbreaking:
Art.14: “Any Beninese national, whether physical or legal person, can purchase a building or land in the Republic of Benin. Non nationals may purchase buildings in urban areas in the Republic of Benin, subject to reciprocity agreements or international treaties or agreements. (…)”. One of the aims was to prohibit/limit sales of land to non-Beninese nationals.
Art. 42 and 43: “The right of property bestows upon its bearer the right to use, enjoy and dispose freely of the concerned property, in the most absolute manner provided the use given to it is not forbidden by laws or regulations” - “No-one can be deprived of his/her property except for reasons of public interest and in exchange for fair and prior compensation.”
Art.149 and following: They provide for the existence of a land registry, where these land certificates will be recorded along with other documents.
Art.196 and following: In rural areas “a rural land tenure plan is established upon the request of the village chief and after prior discussion within the village council…”. Each individual must then register as part of this rural land tenure plan. This rural land tenure plan can be referred to in judiciary decisions.
Chapter VI specifies the different models for managing natural resources in Benin “ All Beninese are equally destined to access natural resources in general and namely farm land, without discrimination based on gender or social origins, in the conditions laid out by the Constitution, the laws and regulations.” The will to provide equal access to natural resources for men and women is apparent here.
Art.351 and following: Explicitly acknowledge the existence of customary land tenure law in Benin: “The customary rights assumed to be practiced by individuals or groups on land not included in the rural land tenure plans and not registered are hereby confirmed. (…) Any bearer of at least one of the aforementioned rights, wishing to obtain an enforceable deed stating the existence and scope of his/her rights, shall file a request with the municipal office (…)”. It should also be noted that whoever has farmed land peacefully and without interruption for at least 10 years cannot be deprived of the concerned land without a valid reason. Lastly, rural land that has never been claimed as anyone’s property belongs de facto to the State. The State can then assign it to local authorities.
Forced Evictions and Expropriations: a More Solid Legal Framework
Customary law has led to many land sales and, thus, much fragmentation. When acting under customary law, nothing accounts for the vendor’s legal right to sell and whether the amount of the sale can be questioned or not.
The new land code prohibits these kinds of deals. It defines the right to inhabit, more akin to a property right than to a right to housing. Thus, article 51 provides that “the right to inhabit is the right to use a house attributed to a specific person, as needed by him/her and his/her family, and is established by a convention”.Article 52 states that “the right to inhabit cannot be yielded to a third party unless explicitly authorised by a specific clause.”
A New Law as a Result of Social Movements
The inhabitants who have been supported by social movements such as the No-Vox network, obtained the adjournment of all evictions until the adoption of the new land and public land code by the Assembly. From now on, evictions and expropriations are codified:
Art.523 and following: “any illegal or arbitrary eviction is banned in the Republic of Benin. The State must, in compliance with international conventions, take measures to prevent forced evictions and planned demolitions pursuant to court orders. (…) Development projects financed by international or multilateral organisations cannot imply or entail forced evictions. (…) In the event of illegal and/or arbitrary evictions, the amount of the compensation as well as the period and means of payment must be just and fair (…).
Nonetheless, in Benin, evictions are often the result of procedures started by heirs who question their parents’ sale of land because speculation has increased the land’s value-added. Thus these heirs obtain justice decisions which state that they have been dispossessed of their property and that the occupants of the land must clear the space.
Art.216 and following: “the expropriation process is set off by a declaration of public utility by the competent authority”. Depending on the territorial level involved in the expropriation, the competent authority is the President of the Republic, of the region or the municipality.
Art.245 “when urgent expropriation requires the population to move immediately, the expropriating authority must provide them with housing and/or a first payment of the eviction compensation”.
In Benin, there have been changes in habits and customs which have had an impact on the social and economic situation: the frenzied pursuit of unlawful wealth and the emergence of a new class of landowners have shattered the customary conception of land as sacred and non-saleable.
Despite the legal progress which has been made, there is still not enough land available to farm food-producing crops, necessary both for food sovereignty and for avoiding the famine and diseases caused by malnutrition.
Land is still farmed for intensive production rather than for families’ livelihood; too much money is spent on food imports; there are increasing conflicts over land tenure. These are all meaningful reasons which must impel social movements to continue fighting for more social justice, for a democratic, fraternal and ecological society able to safeguard its inhabitants’ rights.