Land Law in Francophone Africa
~ By Joyman Lee
6 October 2023
I recently returned from a short research trip to Dakar, Senegal as a part of a broader project on land law in Francophone Africa. The goal of the trip was to establish contact with legal historians and private law scholars at Université Cheikh Anta Diop, and I also spent some time at the Archives Nationales in Dakar.
My interest in property law in sub-Saharan Africa began a few years ago, when I was a visiting doctoral student in Paris, and came to be interested in this question: what does property law look like in the global South? I came to be interested specifically in Francophone Africa because it seems to be an area which very few Anglophone legal scholars have looked at. I came to realise that land law in Africa is best characterised by legal pluralism, that is to say the coexistence of “modern” property law with various forms of customary landholding. Legal pluralism is also the dominant mode in a number of other areas in private law, most notably in family law.
In Senegal, registered land accounts for less than 5% of the total land surface of the country. This means that most land, particularly those in rural areas and in the semi-urban and unplanned settlements that have sprung up around Dakar, falls under the regime of the domaine national. At a substantive level, the domaine national is hardly unique on a continent where most land is held on a customary basis. Yet, the formal nature of the domaine national is attributable to the ideas of Senegal’s founding president Léopold Sédar Senghor, better known in the Francophone world as a poet and the first Black member of the Académie Française than as a politician, who saw in Senegal’s pre-colonial heritage a philosophical worldview where men possessed only a right of “usage”, whereas “ownership” belonged to the realm of Mother Nature and spirits.
The domaine national is not an alternative structure of land law in the way we would understand it in English or Scots law. For one, it does not have the detailed legal rules that emerge gradually from litigation or legal doctrine; key institutions such as rural councils remain ill defined, and the state retains paramount control over the entire system. Rather, Senghor has always envisioned the domaine national to be a placeholder solution, to be used until the country is able to decide what is the best way of utilising the land. In the meantime, peasant cultivators would continue using “their” land as a free resource owned by the nation’s citizens as a collective whole.
In this system, the state’s “ownership” of land is largely nominal (akin to the Crown’s technical ownership of land in England), and users enjoy only a right of usage. They are required to farm the land personally and remain in occupation, and the land cannot be the subject of commercial transactions, for example a sale or a lease. Furthermore, it is also not available for succession, although the heirs of a deceased user can apply for the same rights from the rural council. Usage rights are given a level of protection from encroachment under the penal code.
To help us understand such a system, French jurists Monique Caverivière and Marc Deben, authors of the leading text on the subject (Le droit foncier sénégalais [1998]), have characterised rights under the domaine national as res nullius, or a thing outside of law, and res communis, a common resource which individuals can access for subsistence purposes.
Yet, while the domaine national is effective in giving users “free” access to land, such a system also has obvious drawbacks. Because rights held under the domaine national cannot be used in legal transactions, they cannot form the subject of a security right, for example a mortgage. This means that holders of usage rights under the domaine national cannot use what would otherwise be their most valuable asset to borrow money. In contemporary Western speak, they are simply not “on the property ladder”. Thus, the lack of clear property rights prevents Senegal’s peasant cultivators from using their land to help them advance economically, and acts as a brake on economic development.
It is not the case that formal legal rights do not exist in land in Senegal: against the background of economic development, it is inevitable that land transactions would involve progressively larger sums of money, with the resulting expectation that one would be able to depend on these purchases. Legally, most of the “innovations” are found in urban areas, where land is usually held as a part of the Domaine de l’État rather than the domaine national. While this is also not private ownership in the sense of registered land, subordinate real rights such as the emphyteusis (land contract allowing perpetual use on the condition of proper care and rent payments) or superficies (real right in buildings on top of land) can be created in land forming a part of the Domaine de l’État. Under the doctrine of superficies, a security charge can be created in the fruits of improvement to land, for example buildings, even though the value of such rights would be significantly lower than rights in registered land. Furthermore, as authorities may not be aware of the status of rules that remain largely informal in nature, these rights can be unstable, and users are vulnerable to the possibility that multiple rights may exist in the same piece of land.
It is against this socio-legal background that there have been a number of proposals for change. The most powerful among the forces clamouring for change has been that of investors. Under what was known as the Washington Consensus and working in tandem with international institutions such as the World Bank and the International Monetary Fund in the 1980s, the country’s Westernised elites pushed for the replacement of neo-customary landholding with a system of private property rights. This idea, however, has been definitively rejected by peasant cultivators, who fear that land privatisation would lead to their dispossession. Consequently, they support changes that would allow economic development at the same time that they want restrictions to be placed on the sale of land to investors from outside the community.
Remarkably for a sub-Saharan African country, the strength of civil society has allowed peasant cultivators in Senegal to find a voice through their own organisations, most notably the Cadre de réflexion et d’action sur le foncier au Sénégal (CRAFS) created in 2010. That year, the CRAFS intervened actively in presidential debates, which greatly increased the publicity of the peasant cause. In 2012, president Macky Sall created the Commission nationale de la Réforme foncière (CNRF) to come up with proposals for reform. The CRAFS participated actively in these efforts, both in a technical sense by engaging sociologists and agronomists sympathetic to their cause and participating in technical debates on what would offer the best formal legal structure to peasant cultivators, and at the level of political mobilisation.
My current research focuses on ways of better understanding the hybridity of the land system on the ground in Senegal, which some may see simply as a situation of “non-law”, or where informal administrative mechanisms prevail over the rule of law. In addition, I am also interested in the possibilities of reform. In particular, while the CNRF ultimately failed to offer a set of conclusive proposals for change, to my mind its failure also highlights a different dimension. Owing to an effective sharing of power since the days of Senghor between the Westernised elites and traditional authorities, particularly Muslim brotherhood leaders known as marabouts, the strength of civil society in Senegal is often seen as exceptional in the context of sub-Saharan Africa. From this perspective, the commission’s recognition of the need for more holistic reflection can itself be viewed as evidence of the increasing maturity of civil society in the country.
A perk of having completed this preliminary research was that I got to present my ideas to colleagues at the School of Law in our Work in Progress seminar last week, where I received some fantastic feedback from experts on different areas of law in our School. Previously I have also presented this research in other forums, most notably at the Law and Society Association in the US, which is the primary forum for socio-legal research on Africa. In the long run, I am considering whether it would be fruitful to compare the situation in Senegal with common law countries in the region, such as Nigeria or Kenya, as a way of engaging English legal scholars who may find Commonwealth jurisdictions more familiar. I hope one day to write a legal history book on this subject, which would serve two important goals: to demonstrate, first, that different yet formal alternatives to modern law exist in the global South, and secondly, that comparative law, which has developed almost exclusively in European academia, may in fact have a large latent role in reconciling vast legal divergences resulting from the European colonisation of the African continent in previous centuries.
Photo credit: Île de Gorée, an island off the coast of Senegal opposite Dakar, which was one of the largest slave-trading centres on the African coast between the 15th and 19th centuries (Photo: Joyman Lee)
Dr Joyman Lee is a Lecturer at the UofG School of Law and a member of the School’s Private Law Research Group.
