International Context of land governance

Land tenure

International Context of land governance
A Land tenure issue is getting attention on international level. Land is no longer the exclusive right of states at national level. Land tenure is now indisputably across the continent and is supported on international level. The current trend of land internationalization with foreign land investments has revealed more important information in many ways that the legal barriers between international, sub-regional and country order are expected to disappear to give rise to a rational legal harmonization encompassing the different legal spheres in a real legislative syncretism. For now this legal harmonization is in an embryonic state. The international world has a rich texts and collection of instruments on land. But for methodological concern all these texts cannot be covered in this study. A choice is made to meet the challenges of the study. At the international level, specifically within the UN System, several texts relating to land exist, but we will focus on the FAO guidelines. In the African context, these are the preferred texts of the African Union, NGOs as well as ECOWAS.

1 – 1. The FAO Guidelines: Text Presentation and Analysis
The United Nations Food and Agriculture is an international organization that works to achieve food security through its border programs in the various member states of the United Nations. On land issues, FAO has taken several initiatives, including the guidelines on right to food adopted in 2004, International Conference on Agrarian Reform and Rural Development in 2006. These important initiatives, will be strengthened by the decision of the Committee on World Food Security (CFS) in the adoption of voluntary guidelines to responsible land tenure governance for land, fisheries and forests in the context of National Food Security. These guidelines are full of strong recommendations on land governance. They expose internationally accepted rules and principles for creating incentives to responsible land tenure governance. Their adoption is the result of a consultative process involving civil society, representatives of States, representatives of international organizations and academics. Launched in 2009, the process resulted in the adoption of the guidelines on March 9, 2012, officially approved by FAO on May 11, 2012. Several principles are raised by these guidelines. At this level, it should be noted that as their designation indicates, the application of voluntary guidelines is not mandatory for states. These are optional texts which set out principles accepted by the international community as useful for the development of the human condition whose application is subject to the discretion of states which may or may not incorporate them into their internal legal corpus. Obviously, the guidelines outline strong recommendations in relation to land.
In terms of inclusive and participatory approach in the process of land reform, voluntary guidelines from FAO stipulate that States should:
• Undertake consultation and active participation with full knowledge of legitimate land title holder’s rights that could be affected by any land decisions throughout the decision-making process.
National land policies should be transparent. The inclusive and participatory approach is a guarantee for essential transparency.
In terms of access to land, the guidelines pose the requirement of fairness and justice by inviting States to:
• recognize that equality between individuals may have to go through the recognition of differences between them and by the adoption of concrete measures, including measures of emancipation, to promote within the national context, equitable land rights and equitable access to land (…)for all: men, women, young, vulnerable people and the traditionally marginalized;
• ensure that women and girls enjoy equal land rights and equal access to land, fisheries and forests, regardless of their status with regard to civil or marital status;
The question of gender and social class is highly considered. Access to land is more extended to men than women independently of all social considerations. Vulnerable segments such as small scale farmers are thus eligible for access to land.
The recommendation of indiscriminate land access for all, results in recommendations made to the states to:
• Recognize and respect all legitimate land title holders and their rights, formally registered or not;
• Promote and facilitate the full exercise of legitimate land rights;
There are also recommendations for the protection of land rights that are addressed to states. These are to:
• Protect the legitimate land rights against arbitrary violations;
• Provide access to justice in cases of violation of legitimate land rights.
Land ownership is not an immutable law because, subject to the requirements and needs of the moment, it can be undermined by practices such as expropriation for public utility.
For states to provide guarantees for protection of land ownership, FAO recommends that:
• States should ensure that expropriations are planned and carried out in a transparent and participatory manner. Anyone likely to be affected should be identified and properly informed and consulted at all stages of the process;
• States should provide an accurate estimate of the property value and prompt compensation in accordance with national legislation. Compensation may for example take the form of cash benefits, certificate of occupancy in areas allocated in replacement, or both;
Of these recommendations it appears that expropriation is likely to undermine the land rights if it is not monitored and has no legal basis. West African countries, particularly those targeted by this study have provided all legal mechanisms for compensation in case of expropriation for public utility. This positive assessment is then a reminder to members of the organization to further adjust their legislation in relation to the need to protect land rights.
In a context of explosion of land investment, FAO encourages states to create favorable conditions for accountable and transparent land investment that does not undermine the legitimate and legal rights of land users and are beneficial to food security. In this respect, FAO considers that:
• States and non-state actors should recognize that public and private investment managers are essential for improving food security.
Furthermore, FAO supports agricultural investments by small scale farmers to guarantee food security. Indeed, FAO considers that the promotion of the development of investments in small scale farms is a guarantee for preservation and even strengthens of small scale farming. Small scale farms following the model of family enterprise are the cement for food security. In this respect,
• Given the fact that small scale producers in developing countries and their organizations provide a large share of agricultural investments that contribute significantly to food security, nutrition, elimination of poverty and the resilience of the environment, states should support investments produced by small scale farmers as well as public and private investments that reflect the interests of those operators.
This FAO recommendation is widely shared by the organizations of the West African Civil Society which require more recovery and securing of family farms particularly through access to bank credit. The expansion of investment in family farms should in no way undermine the land rights of small scale farmers. It is in this sense that the voluntary guidelines stipulate that “States should consider encouraging a range of investment and production models that do not lead to large-scale transfer of land rights to investors, and they should encourage partnerships with local title holders”.
In respect to the considerations developed in the preceding lines, it shows that the FAO recommend states to:
• promote inclusive and participatory processes in land policy;
• Ensuring equal access of all to land (men, women, youth);
• Establish accountable and transparent policies for land governance;
• Protect the legitimate land rights, registered formally or not;
• Provide mechanisms for fair and prior rapid compensation;
• Develop and promote agricultural investment at the level of family farms;
• Ensure the conservation of land rights of small scale farmers in large scale land investments;
These FAO recommendations are intended to bring about a responsible land tenure governance for achieving food security. West African organizations such as ECOWAS and WAEMU are in the evaluation phase of their agricultural policies to better align with international requirements.
In addition, land issues are also included in the political agenda of the African Union.

1-2.The Policies of the African Union: Texts Presentation and Analysis
The African continent is now one of the main targets of large-scale land investments. The lust for land has sparked a wave of distrust of large-scale land investments. At the continental level, there is still no uniform land policy designed for adoption by the various countries of the continent. But efforts to harmonize land policies exist. The most significant of this is undoubtedly the Framework and Guidelines on Land Policy in Africa (FGLP), adopted in September 2009. This land policy document at the continental level is the result of a work in consortium between the African Development Bank, the African Union and the Economic Commission for Africa.
Indeed, in 2006 the Commission of the African Union Commission (AUC), the Economic Commission for Africa (ECA) and the African Development Bank (AfDB) joined forces in an initiative now known as Joint Initiative on Land Policy in Africa. The objective of this initiative was to work on the problems and issues related to land policy in Africa, in the view of developping a framework to strengthen the framework of property rights, increase productivity and improve living conditions. This initiative led to the adoption of CLD in 2009 that was examined and a thorough review at the Joint Conference of Ministers responsible for agriculture, land affairs and livestock, held in April 2009 in Addis Ababa.
The CLD determines the general guidelines necessary for sustainable and sound national land policies. These texts are not mandatory. The objective is to provide a frame of reference to states on land policy.
The framework and guidelines for land policy in Africa offers states a set of major guidelines in land matters. In the formulation of land policies, a participatory and inclusive approach involving all land stakeholders is recommended by asking states to:
• Increase the involvement of civil society, whose contributions were ignored or poorly considered;
• Encourage and support participatory and inclusive land processes;
• Ensure the full participation of women being the main users of the land in Africa;
• Emphasize the need for public participation in the formulation and implementation of land policies to promote better governance of land resources. Popular participation in the process of formulating land policies can take into account the concerns of different land stakeholders to create a consensus on the content of land use policies as a guide to land legislation.
These guidelines have a significant impact on land policies. The consensus is the main objective sought throughout this process. There can be no effective land policy if the fundamental issue of universal access to land is not guaranteed. The CLD particular emphasis on women’s to access land in Africa. This is to address the marginalization of women access to land because [If we want the laws and policies to repair inequalities between men and women in the possession and use of land, it is necessary to deconstruct, reconstruct and rethink modern existing customary laws relating to land ownership, reformulate and rethink the current law for land, with a view to strengthening the rights of women access and control of land and doing so, in accordance with the local family and social networks]. The change in land tenure is the key solution for effective access of women to land. Despite the modernization of land tenure, customary relics are still obstacles to full access of women to land. In all West African countries within the framework of this study, there is an assumption of women’s access to land: no laws, neither regulation states explicitly women’s access to land. The principle of access is a doctrinaire application of the spirit and the letter of the existing texts. Access to land is stated in a generic sense, such as [access to natural resources is guaranteed to all]. Specifically, as recommended by the CLD, there is a need to review the rules to access land by giving an explicit legal basis to women’s access to land.
In addition to the recommendation of universal access to land in particular women, there are also guidelines on investment. For this reason, it is required of states to [find the right balance between industrial investment, health requirements and human security as well as environmental protection]. Industrial investment has become irreversible, land policies of states should also take into account the protection of land rights of vulnerable groups in addition to the requirements of human health, safety and environmental. In this respect, the FAO voluntary guidelines are more explicit on the issue of the protection of indigenous rights against the growing phenomenon of land grabbing populations.
• However, the CLD addresses the issue of securing land rights of users by inviting states to provide compensation mechanisms in case of expropriation for public utility.
Highlighting the rapid increase in direct land investments, CLD states that [a significant challenge for African states will be to implement appropriate policies to ensure that the risks associated with these changes (caused by increased direct investment), and in particular the risk of the poor losing their land rights without compensation, are avoided or effectively managed].
Compensation is an effective guarantee against the loss of land. Large-scale land based investments are encouraged by liberal land policies which hardly excludes land capitalism. But whatever the scale of investment in the land, there must be a balance between the interests of the state, citizens and investors. This requirement involves “the development of effective land policy, achieving balance between the rights and interests of all users and to the consideration of all members of society, especially women, people with disabilities and the poor that have no land”. It comes at this level to further reconcile the investment and socioeconomic development. Indeed, “Instead of uncritically endorsing large-scale plantations, host governments should exploit the incentive mechanisms to promote business models whose values overlap with those local businesses, as owners of small scale farms. These initiatives may involve contract farming structured in an equitable manner. Local people provide their land in exchange for participation in the project. ”
To a large extent, the African framework takes into account significant land issues, including
• The adoption of land policies in an inclusive and participatory approach encompassing all land actors;
• Equal access of women and men to land;
• Securing land rights of small farmers;
• Management of large-scale land investments;
• The establishment of compensation mechanisms;
The sub-regional context is also left with respect to the management of land issues.
• Sub-regional Context of Land Governance
Intermediate level between the international order and the sub-regional framework developed initiatives related to land. Sub-regional organizations have several legal land instruments for member countries. These institutions with regards to land have a vital role to support and facilitate national processes by states, to ensure that land policies are consistent with the principles and rules for sub-regional integration. In the West African area, WAEMU and ECOWAS have established or are in the process of putting in place several instruments to remediate land governance for West African States. Some of these tools are jointly initiated and others are specific to each institution.
Among the joint initiatives, we retain the draft land charter on land policy in West Africa. The idea of a land charter was first launched in 2003 at the sub-regional forum organized by the Inter-State Committee for the Fight against Drought in the Sahel (CILS), on “rural land and sustainable development in the Sahel and in West Africa “, held in Bamako, Mali.
In 2006, the workshop to revive the idea of the charter, still held in Bamako, where the Heads of State, Government of ECOWAS and WAEMU marked their membership. A consortium is thus created involving CILS, ECOWAS and WAEMU. CILS was committed to complete the process of adoption for the charter. At the beginning of the process in 2003, the sub-regional forum heckled political authorities in the sub-region on “the need to find an urgent durable solution for effective land issues in order to ensure peace and stability to the people without whom development and poverty reduction is not possible “. The proposed joint charter on land policies aimed primarily at:
• The proposal to the states on founding principles of integrated and secure management of land and natural resources in the sub region. This is to promote optimal land tenure concerned with the preservation of land rights of indigenous peoples in various countries of West Africa.
• The development of a community land law in the sub-region, particularly in the context of the WAEMU and ECOWAS;
• The formulation of legal compliant for citizens both at national and sub-regional levels.
These objectives are part of a roadmap in an interval ranging from 10 to 20 years and that the process of implementation must be “cautious borrowing, progressiveness and flexibility.” The roadmap consisted of three phase 1 – ownership and control of the process, 2-concertation around the stakeholders of the charter, 3-the development, adoption, ratification and implementation.
The development of the charter has not yet exhausted the limits set by the roadmap, preceding the assumption of the ratification for a probable land charter of the state harmonizing land rights in West Africa space. However, separate initiatives from ECOWAS and WAEMU are carriers of essential recommendations for the entire land management in their member countries.
2-1. ECOWAS: Text Presentation and Analysis
Economic Community of West African States (ECOWAS) is a regional group of fifteen countries, founded in 1975. Its mission is to promote economic integration in all fields of economic activities, particularly industry, transport, telecommunications, energy, agriculture, natural resources, commerce, monetary and financial matters , social and cultural issues. The Economic Community of the West African States has a useful policy tool for land management and is currently engaged in a process of adopting a land guideline which has not yet been completed.
The policy instrument is the common agricultural policy (ECOWAP) adopted in Accra on the 19th of January 2005. The modernization of agriculture remains the overall objective of this policy.
Development and access to finance for family farms are part of this overall objective. The ECOWAS member states should thus “promote fair trade and economic integration of agricultural holdings in all markets.” Still, securing agricultural operations for greater economic return on all markets cannot be done without securing land. The latter strongly influences agricultural productivity. It is only if arable lands are secured that agricultural production can be profitable, which implies a prior security of land. Obviously, the common agricultural policy of ECOWAS is much more oriented towards the development of agriculture as a driver of economic growth in the West African area. Land occupies a place in the implicit as no provision is explicitly relative. This does not mean that ECOWAS disregard or he is not interested on land policy.
In fact, ECOWAS is currently engaged in a process of adoption for sub-regional land directive. A first draft of this directive was presented to the Ministerial Committee specialized in agricultural, environmental and water resources. Met in Lome, Togo September 27, 2013, the Inter-ministerial Committee, noting that the draft guideline was developed without the consultation of all stakeholders on land both at national and sub-regional level, the Ministerial Committee urged ECOWAS Commission to:
• Elaborate a draft directive on land that is inspired from the framework and the guiding principles adopted at the African Union for a responsible land tenure governance and a deadline for adopting the regional directive on land;
• Send text to countries and all stakeholders for possible amendments before the end of March 2014;
• revise the document taking into account the amendments proposed by countries and organize a workshop for validation;
• Ensure the involvement of producer organizations and civil society in the discussion and validation of the Directive;
• Ensure that simple mechanisms are in place to enable families have access to finance;
• Adopt a Directive to take into account gender issues in all national and regional initiatives;
• Develop strategies for effective participation of private sector in financing agriculture;
These recommendations of the Interdepartmental Committee are rich in meaning. The sub-regional and international legal ideas are incorporated via a reference to the framework and guideline adopted by the African Union to elaborate a sub-regional directive on land tenure. This methodological approach reflects the political will to create a harmonized legal framework for land. The participatory approach is also required in the development of land directive. Advocating for access to funding for family farms ensure the modernization of family farming and offer some legal land security for small scale farmers who could thus develop agribusiness from their secured land. Gender issues were prominently discussed at the level of orientations posed by the special committee. In reality it is the gender issues that are addressed at this level. It has to be admitted that they have a fairly limited access to land considered as the main tool for production in Africa. Sociological considerations are still holding women’s full access to land. The recommendation on gender transcends land issues and expands to all other matters in which women are involved.
Participatory processes, women’s access to land, security of family farms, and harmonization of legal instruments or policies relating to land are the basis of the draft directive of ECOWAS on land. WAEMU has also developed principles of land governance through its Common Agricultural Policy.

2 – 2. WAEMU: Texts Presentation and Analysis
The West African Economic and Monetary Union (WAEMU) is a West African organization whose mission is to achieve economic integration of its member states through the strengthening of economic competitiveness in the context of an open market and streamlined legal competitive and harmonized environments.
Succeeding the West African Monetary Union (WAMU), created in 1962, the WAEMU was created in Dakar (Senegal) on January 10, 1994 with its headquarter located in Ouagadougou (Burkina Faso).
In an area of sub-regional economic integration, WAEMU develops policies in several areas, to impact national policies of its member countries. This is the Common Agricultural Policy (PAU) of the WAEMU adopted on the 10th December 2001 on the sub-regional economic integration through the harmonization of agricultural policies of member countries. PAU aims to contribute sustainably to meet the food needs of the population, the economic and social development of member states and the reduction of poverty. It supports issues related to agricultural production with WAEMU. As to the land issue, it is shyly treated in the Additional Act No. 03/2001 of 19 December 2001 supplementing the act adopted on the 10th December 2001. There is a question of organizing the management of rural land and taxing land development in different countries of the union. The questions relating to access of land, the inclusive nature of the land reform process, compensation mechanisms are not explicitly addressed in the common agricultural policy, even if access to land is a necessary condition to the operation of the mobility system of rural populations.
However, at the institutional level, WAEMU is putting up a Regional Observatory for Rural Land (RORL). This structure will be responsible for coordinating the actions of the member countries of the Union relating to land and operates a monitoring land policy to facilitate harmonization.
This initiative in its reflection phase, is based on the recommendation of the African Union on the continuous improvement of land policies in providing permanent changes to mechanisms for monitoring and land policies analysis. The initiative launched in 2009 was the subject of a study whose final report was validated by experts in the conclave at Dakar on the 26th of June 2013. The report is sent to the states for comments and amendments. Pending the establishment of the structure, the WAEMU has already taken other initiatives related to land.
Indeed, among these initiatives we can retain the study involving “Rural land issue facing the challenges of economic integration in WAEMU”, sponsored by WAEMU after the adoption of the Framework and Guidelines on Land Policy by the heads of government. This study is based on the following observation: “In the area of land, many risk of slippage have been identified. This is in particular the tendency to make local interests prevail to the detriment of the public interest (including the exploitation of natural resources), marginalization of certain social groups (transhumant pastoralists in particular) or even dissemination of corrupt practices “.The study recall the universal land issues following cultural diversity. In sub-Sahara, land has a value of identity, the practices change with the sociological realities of the environment, resulting in a mosaic of land tenure, which means that “land system for a given society is difficult to transpose successfully to another. The study recommends a common logic for land through several recommendations. Thus, in terms of access to land, WAEMU is requested to adopt by its member states land policies to improve access of vulnerable groups to land, especially women. These are:
• Improve access rights of rural women producers to land;
• Abort the process of marginalization and land exclusion of certain vulnerable groups, such as pastoralists, migrants, women and youth;
Prioritization of women’s access to land is based on the place occupied by women performing agricultural production in WAEMU. But in a context of land grabbing, simple access to land is not enough to secure small scale farming. It is in this context that it is recommended to the WAEMU to:
• Ensure improved supervision of land grabbing in protecting the interests of family farmer, by consulting them before any allocation of land within their environment and involving them in decision-making.
Securing land of small scale farmers cannot be done without the participation of indigenous peoples in decision-making. Inclusive and participatory approach is therefore required. Partnership models are proposed, such as rural tenancies that allow rural landowners to retain the right of preemption on their land under operating contract. Access to land and land tenure security are inseparable and indispensable for farm profitability. The large-scale land investment is to reconcile with the consideration of the interests of local users and the state. The development of land market requires the insertion of land in the economic system as a commodity to be bought and sold freely. But the rural land market players are placed in a situation of economic and social inequality: on one hand, poor small scale farmers generally access and own land through customary principles and rules; on the other hand, investors in general from the urban environment, have substantial financial resources, are highly aware of the economic challenges of the rural land ownership and knowledgeable about the procedures implemented to acquire the land. A Consideration of these observations proposes a required solution for correcting disparities in legal land security. Access to land credit for small scale farmers proves to be based on secure land. The study recommends:
• The development of a pilot program to promote appropriate land credit systems.
These initiatives of WAEMU highlight a willingness to supervise land policies of West African States to make effective economic and social integration within the Union. The partitioning of land policies may tend to gradually disappear.
From the international level to the sub-regional level, land issues are addressed with acuity. Harmonization is the key to full international and sub-regional initiatives on land issues. Access to land for women, small scale farmers and other vulnerable social groups such as youth securing rural land rights against the phenomenon of land grabbing, access to credit and supervision of large-scale land investments are strong principles developed by the various texts relating to land both at the level FOA, the African Union, ECOWAS and WAEMU.
At the national level, land issues are addressed differently by states. Challenges and priorities differ. There is no land policy or fortified land tenure legislation. National public policies fall within different agendas. However, land continues to be governed in all West African countries.

This is the English version of a chapter of the Legal Comparison of Tenure Systems of ECOWAS member states, Amadou Kanouté in behalf of the Heinrich Boell Foundation

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