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4. LEGAL ASPECTS of community-based natural resource management


Without going at this point into a more detailed discussion of the spirit and disposition of recent decentralisation measures[68], it will be useful to briefly sum up the reasons generally underlying such interventions as they relate to the agricultural sector and to natural resource management. "Using the provision of agricultural support services [and specifically agricultural extension] the three major factors determining the desirability and degree of intergovernmental decentralisation are the extent of economies of scale, the nature of any spillover effects and the extent to which local needs differ from those of the nation in general" (Smith 1997). Whilst decentralisation is likely to reduce agro-ecological variability, and therefore facilitate the design of differentiated and more sensitive policies in locations other than the capitals, this will much depend on the gap between the policy priorities and goals at the national, regional and local levels.

The shift from command to market economies has triggered the gradual development of official land markets in a number of countries where these did not exist, and economic liberalisation and Structural Adjustment Programmes have further increased land titling and privatisation. There has consequently been a "delegitimisation of the state’s monopoly on land" (Le Roy et al. 1996), either legally, or in fact, or else both; the factors contributing to such a shift are complex and multifold, and defy cross -country generalisation[69]. However, local practices have always differed in their interpretation of government ownership of land and stewardship over natural resources, and have thereby been sustained by traditional community institutions, which much determine the scope, configuration and social morphology of tenure regimes. That these practices have - often supported by NGOs - recently been given relatively more space to unfold, has promoted the concept of "community-based natural resource management (CBNRM)" to a more important place in mainstream development.

For CBNRM to work effectively, some degree of authority must be shifted to community level. Nonetheless, locally elected community leaders have expressed their concern that more often than not, the domains over which responsibility is devolved are those that were giving a hard time to the central government, and, worse still, those where no significant financial gains can be made. In Senegal, for example, as in most of West Africa, the spheres over which the state has transferred liability to the rural communities (communautés rurales) include: land; the environment and NRM; health, population and social action; youth, sports and leisure; culture; planning; territorial organisation (aménagement du territoire); education; urbanism and habitat (but neither agriculture, nor forestry or fisheries). Activities related to any of these are to be carried out by the rural communities through the rural councils (conseils rurales). The role of such councils as new actors and what constitutes their "good governance", is increasingly under debate, as CBNRM is inextricable from the concept of "governance" in decentralised NRM[70]. "Governance" is, following a perspective derived from legal anthropology and political science[71], often encapsulated as consisting of: legitimacy of authority; public responsiveness; and public accountability, as well as of: tolerance of other actors with a public character; information openness; and public management effectiveness. Jacob et al. (1994) define "local governance" as "the totality of processes (or functions) which contribute to the development of a specific area as well as the norms necessary for mediating a harmonious integration of actions".

From the point of view of the legal foundations underlying the governance concept, the observation of daily juridical reality has led a number of researchers to recognise that all law is relative, that there exists a pluralism in the sources of law, and that there should thus be a return to pragmatism (Arnaud 1990). The available spectrum of legality and legitimacy related to local institutions often takes a form that includes, in most developing countries, at least the following three broad categories: modern, religious, and traditional norms, can be found in a tense triangle of factors that shape the local arena in which the institutional setting of development is negotiated locally. This situation is sometimes exacerbated even more by ill-informed (or uninformed) and culturally-insensitive projects that have set up their very own rules of access to natural resources, of in- and exclusion (Vel 1992, Benda Beckmann 1997, Onibon 1999), leading to further superimposition and confusion of authorised NRM rules. It has been argued - forcefully and convincingly - that this confusion has at times led to disincentives for sustainable management, anarchy and the abandonment of former rules and norms (Kéita 1985, Soumaré 1998), as in the case of traditional urf rangeland management in Yemen.

On the one hand, excessive legal pluralism may be paralysing, on the other, it may lead to a situation of cohabitation, syncretism and symbiosis, by which desirable elements of the different spheres of legitimacy are included and balanced in daily practice, be it from the point of view of NRM or of social equity and sustainability. Thus, in countries as different as Mali, (coastal) Mozambique, or Indonesia, the rules of access to natural resources are embedded in claims derived from national legislation (and/or other "modern" judicial and extra-judicial means such as political power, etc.), Islamic norms and customs, and traditional (pre-Islamic) norms and customs. Shrewd and well-informed villagers will draw on this broad repertoire to their own advantage (e.g., to capture project resources) and play out the different stakeholders against each other.

Le Roy (1996) therefore postulates that it is essential that the legitimacy of new local management institutions be based on a certain institutional autonomy, and, one may add, concurrent adaptability and flexibility.

In Niger, the traditional chieftaincy is an institution that is officially recognised by the national legal system, which grants it a role of conflict management. In effect, article 78 of law 62-11 of 16 March 1962, states that upon the (political-administrative) district chief (chef de canton) or group chief (chef de groupement), the village chief or tribal chief according to custom, are confered the power to reconciliate the conflicting parties in any customary, civil and commercial matters subject to a transaction (Synergies Africa/ACTN/IRED, 1996: 23). There may exist locally an institutional void due to relatively recent legislative changes (for example, in Burkina Faso after the agrarian and land reform in 1984), that is to say, traditional NRM rules, rights and power structures may have been abolished but not replaced by anything else (Le Roy 1996) - this institutional void may be apparent through the absence of a uniform power that is: strong enough; informed; and legitimate to regulate access to land and other natural resources.

The Decentralisation Mission (Mission de Décentralisation) of the third republic of Mali has elaborated a number of declarations since its creation in 1993 that determine the conditions of the free administration of the territorial collectivities (collectivités territoriales), the code of the territorial collectivities, and the principles of the constitution and management of the territorial collectivity domain[72]. Law NE93008 of February 11, 1993, specifies that the private domain of a territorial collectivity is managed by the president of the executive body under the conditions prescribed by the laws and rules and whose acts of acquisition or provision must be authorised by the deliberating body (art. 13). The land of Mali will be split up between the state and the decentralised collectivities, who will manage them at their will. The village (le village) in sedentary areas and the fraction (la fraction) in nomadic areas are defined as the local communities (les communautés de base) of those areas according to article 60 of law NE95-034 of April 12, 1995. But they are not recognised as decentralised territorial collectivities under the terms of law NE93008 of February 11, 1993. Thus arises the difficulty of exercising customary land rights and the responsibility of customary authorities in relation to natural resource management, since the villages in effect apply customary land laws.

The exercise of customary land rights, refered to in articles 127, and thereafter, of the CDF are threatened since the decentralised territorial collectivities will be responsible for the management of their domain. This implies that any activity concerning land will have to be done with the agreement, be it implicit, of the communal authorities. It does, however, not mean that current use rights will be systematically removed. The texts are not explicit on this point, but one can suppose that these use rights will be exerted according to principles to be worked out by the communal authorities after consulting customary leaders. The dispositions of the CDF make the consultation of the holders of customary land rights compulsory before such land can be assigned. Currently, following these provisions, the administration does not allot any land without listening to the opinion of the customary title holders. In the process, the latter are gaining increased respect and honour. But if article 136 of the CDF were applied, the domains of the collectivities would be purged of customary land rights, resulting in the suppression of the advantages, be they moral, until present attributed to the customary right holders. As far as land transactions are concerned (hiring, sale, royalty collection), carried out according to customary rules regardless of the law texts, they will have to cease after full implementation of decentralisation.

Law 95-034 of April 12, 1995, states in article 17 that: to deliberate on the matters hereafter, the communal consultation is held, to take into account the opinion of the communal council(s) of villages or/and of fractions or of the neighbourhood chiefs concerned[73]. The obligation of the communal council to consult the village, fraction or neighbourhood council is clearly expressed in article 72 (subparagraph 3) which explains that these bodies are obligatorily consulted on certain matters[74]. However, no obligation is made to the communal council to abide by the opinion of the village, fraction or neighbourhood councils or to those of the village, fraction or district chiefs (the communautés de base). Moreover, the communal council is not obliged to use the rights of collaboration confered to it by law NE96-050 of 16/10/96. Consequently, the application of the various provisions relating to the collaboration between the village, fraction or neighbourhood authorities on the one hand and territorial collectivities on the other, will depend only on the goodwill of the latter. The supervision of the territorial collectivities is enshrined in law[75].

In the case of Mozambique, J. Hanlon (1998) writes that: "Traditional leaders clearly retain power and influence in many areas, and marriage and inheritance are often covered by customary law. Practices vary widely throughout Mozambique, but in many areas women are discriminated against in terms of land and [other] inherited property. There was a strong move at the time of the end of the war in 1992 to pay more attention to traditional leaders and the land commission draft [of the new land law] specifically recognised "customary systems". This was criticised at the land conference as supporting discriminatory and backwards systems. The Council of Ministers withdrew these references and substituted [them with] the concept of "local community". This still leaves space for customary law where it retains a recognised role, but does not enshrine it in law. The concept of local community evolved during the debate this year, and is probably the most important concept added to the [land law] bill by the widespread public discussion"[76].

Today the reality of rural Mozambique consists of local communities that identify themselves with the land within the territorial limits of the former colonial regulado, which is usually a traditionally demarcated territory, where a chief exerts authority through the legitimacy conferred by the symbolic bond to the land. There are also communities that identify with a smaller territory, the lineage territory, like the muthethe lineage of the amakhuwa (Netia) or the mudzi lineage of the vangoni-achewa (Banga).

There persists a perception of power that is consolidated from top to bottom by administrative directives (Lundin and Alfane 1999). This is in contrast with the process of building citizenship from the bottom to the top which first guided the idea of decentralisation at the beginning of the 1990s, with the principle to decentralise to keep the national territory united and construct a citizenship with Mozambican nationality. From the point of view of this objective, traditional leadership, based on regional-ethnic criteria, and the creation of chasms between national institutions and institutions of local power, could endanger the fostering of this citizenship.

In addition to being a natural space (that can be characterised through agro-ecological data), a territorial area is a social product, and it is necessary to specify which is the traditional unit of social organisation for agricultural production, as this will have repercussions on managing food security and rural development. Genuinely participatory planning should take into account not only important local conceptions of poverty and well-being, but also those of "space" and spatial organisation.

In order to better grasp the interlinkages between space and social organisation, the concept of "territory" is useful, and local "territoriality" must be examined beyond strictly legal land demarcations. Traditional authorities may be very useful interlocutors and partners to initially trace out local land tenure relations and territoriality, in their role as mediators between a given territory and population group. Thereby - if land is held by the lineage (or a segment thereof) as a social and productive unit - the most pertinent authorities are the tribal or lineage chiefs or leaders. Who such traditional authorities comprise will vary by locality; for example, in Mali, the land chief or chief of cults in addition to the lineage chief, or the chief of the production space (hooré gollé, in Mopti), should be approached; in Yemen, the akel.


[68] For a number of definitions and concepts, such as "decentralisation", see for example Messer 1997.
[69] They may also be specific to particular domains of natural resource tenure. Karsenty (1996) postulates that from a point of view of positive law, a fundamental incompleteness persists in forestry: state forest tenure regimes are mostly applied on tracts of land that have never been registered as state property.
[70] On this issue see, e.g., Tendler 1997.
[71] See, e.g., Le Roy et al. 1996 for the former and Charlick 1991 for the latter viewpoint.
[72] Respectively, decrees NE93-008 of 11 Februray 1993, NE95-034 of 12 April 1995 and NE96-050 of 16 October 1996. On the constitution of the domain of the decentralised territorial collectivities, according to article 1 of law NE 96-050 of 16 October 1996, it comprises both a public and a private one. The domain of public real estate (domaine public immobilier) of the territorial collectivities includes a public natural domain (domaine public naturel) and a public artificial domain (domaine public artificiel). The former domain consists of all the outlays (dépendances) of the public natural domain of the state situated within the territories of the collectivities and over which the state has transfered the tasks of conservation and management to these collectivities. They are: waterways; ponds, lakes and pools; underground sheets of water; the perimeters of protection; natural sites declared public domain by law (articles 6 and 7 of law NE96-050 of 16 October 1996). According to article 8 of the same law, the public artificial domain of the collectivities relates to land use planning (les aménagements) and works that are of interest to the Region, Circle or Commune, as well as to the territories supported thereby, determined by law or having been classified (as protected area). Within the private domain of the communities, the real estate of the local collectivities includes: the registered land of the private domain of the state that the latter has transfered against payment or for free; the unregistered land located within the limits of the territorial collectivities, assigned or transfered to them by the state according to the interest of the region, circle or commune within this land; and the acquired real estate acquired through payment or not, or earmarked by the state (art. 9 of law 96-050). This article, which subsumes within the private domain of the collectivities, the unregistered land located within the boundaries of the collectivities, is in contradiction with article 136 of the Domain and Land Tenure Code (CDF - Code Domanial et Foncier) which specifies that only land that is subject to a land title established or transfered in their name following a transfer by the state, of an acquisition subject to a payment or not or following the transformation of a rural concession after investment on the land, can be part of the private real estate domain of decentralised collectivities.
[73] In relation to: - the road system, drainage and sewage collection; -public transport; - protective activities of the public domain; - the cadastre - the organisation of agricultural, pastoral, forest, fishing or hunting activities; -the construction of wells and water points; - communal land use planning and land settlement plans; - environmental conservation and natural resource management; - the management of the public and private communal domain; -the establishment and management of communal equipment.
[74] Such as: -the organisation of agricultural, pastoral, forestry, fishing and hunting activities; -the procurement and management of communal equipment; - the development and implementation of the diagrammes of communal land use planning and land settlement plans; - environmental conservation and natural resource management; - domanial and land disputes; and - the component of the development programme concerning their village, fraction and neighbourhood. In addition, the village, fraction or neighbourhood chief chairs the council of his commune and takes part in the development and implementation of the development initiatives affecting it.
[75] (Art. 230). Also, article 229 of law NE95-034 of April 12, 1995 lays out that: the Minister in charge of the territorial collectivities will ensure the supervision of the regions. The representative of the state at the regional level ensures the supervision of the circles of the region and of the commune of the regional capital. The state representative at the circle-level ensures the supervision of the communities.
[76] The Land Law (Law 19/97 of 7/10/1997), Art. 1 pt. 1, defines a ‘local community’ effectively as: "groupings of families and individuals living in a territorial circumscription at the locality level or lower, which aims at safeguarding its common interests through the protection of habitat areas, agricultural areas, cultivated or idle, forests, sites of cultural importance, pastures, water points and areas of expansion". However, the communities related to here are in reality more extensive than the definition provided by this concept, and the "common interests" imply loyalties and group solidarity that physically exceed the identified land areas.

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