ETHNICITY AND COLONIAL HERITAGE IN TRADITIONAL LAND TENURE SYSTEMS

ETHNICITÉ ET HERITAGE COLONIAL DANS LES SYSTÈMES TRADITIONELS DE DROITS FONCIERS

DAS ETHNISCHE UND KOLONIALE ERBE TRADITIONELLER LANDBESITZ-SYSTEME

Klas Ernald Borges
and
Braima Biai

ABSTRACT

The traditional land tenure systems are based on ethnical concepts on social organization and land management. The national borders in Africa are unnatural limits, as the same ethnic group can belong to different countries. The Fula tribe is scattered around in Guinea-Bissau, Guinea-Conacry and Senegal, but keeps the ethnical tradition in a similar way. The colonization introduzed a Western concept of land tenure, though in different shapes. A common basis for colonization was the land concession system, based on a concept of non existing property rights. The Portuguese and French land concession systems had differences, which can be identified in the present land register systems of Guinea-Bissau and Guinea-Conacry/Senegal respectively. Since Independence the countries have made efforts to cater for the small scale farmers, who are out of reach of any formal land concession system. A comparison is made of the cadastral development for farmers in the different countries, though belonging to the same Fula ethnical group.

RESUME

Le système foncier traditionel est basé dans les concept éthnique d’organisation sociale et gestion de terre. Les frontières nationaux en Afrique ont des limites naturels, alors qu’un groupe éthnique peut appartenir differents pays. Le Fula (Fulani/Peul) resident en Guinée-Bissao, Guinée-Conakry et le Sénégal, mais gardent les mêmes traditions. La colonisation a introduit le concept ocidentalle de possession de terre, alors que en differents forms. Le basis comum pour la colonisation a été le système de concession de terre, basée dans le concept de non existance de droits foncièrs. Les systèmes Portugais et Français des concessions de terre ont des differences, ce que peut être identifié dans le présent système de concession de terre en Guinée-Bissao et Guinée-Conakry/Sénégal respectivement. Après l’independence les pays ont fait des efforts pour providencier pour les petits paysans, qui n’ont pas de accèss du système de concession officielle de terre. La comparison du développement cadastral pour les paysans est faite dans les differents pays, surtout pour le groupe ethnique Fula.

ZUSAMMENFASSUNG

Traditionelle Landbesitzsysteme basieren auf ethnischen Konzepten der sozialen Gesellschaftsordnung und der Landverteilung. Die Landesgrenzen in Afrika sind in der Regel willkürlich gezogen, so daß ethnische Gruppen häufig in unterschiedlichen Ländern beheimatet sind. So lebt die Volksgruppe der Fula in Guiné-Bissau, Guiné-Conakry und Senegal, ohne daß wesentliche Unterschiede in der Lebensweise oder ethnischen Tradition erkennbar sind. Mit der Kolonialisierung Afrikas sind westliche Vorstellungen hinsichtlich des Landbesitzes eingeführt worden. Die Landnahme bildete die Grundlage der Kolonialisierung und basierte auf dem Konzept nicht existierender Eigentumsrechte. Das portugiesische und französische Landnahmesystem weist Unterschiede auf, was sich sehr deutlich in den Katastersystemen Guiné-Bissaus, Guiné-Conakrys und des Senegals zeigen läßt. Seit ihrer Unabhängigkeit haben diese Länder versucht, den Kleinbauern mehr Rechte zu verschaffen, da diese formell über keinen Landbesitz verfügten. Im Folgenden wird die Entwicklung des Katasterwesens einiger Länder unter besonderer Berücksichtigung der Situation der Bauern aus der ethnischen Gruppe der Fula vorgestellt.

ETHNICITY AND COLONIAL HERITAGE IN TRADITIONAL LAND TENURE SYSTEMS

1. Introduction: The Ethnical Mosaic of the African Territory

The division of the African territory into geographical areas was decided at the Berlin conference in 1884/85. From a local African perspective the limits were unnatural, and designed by the colonial empires’ claims to the territories. The colonial delimitation did not take into consideration the limits of each ethnical group. The colonial borders were transformed to national borders at Independence of each country: in the 1950’s and 1960’s for the French and British territories, and in the 1970’s for the Portuguese territories. As independent nations, the ethnical groups became submitted to a new sovereign African state, constituted by various ethnical groups. As many of the ethnical groups are scattered in two or more countries, they became submitted to different national policies and laws. Nontheless, the traditional system is kept more or less intact, even though the systems normally adapt themselves to a certain degree to the changes of the surrounding society and its legal and political context.

This paper will make a description of one of these ethnical groups, the Fula, that is scattered in several West African countries. It will describe the traditional land tenure and land management system, and its relationship to the national/official land tenure system in two countries with different colonial background, namely Guinea-Bissau and Guinea-Conacry, previously belonging to the Portuguese respectively French colonial territories.

The traditional land tenure system is described for one Fula village, Sare Delo Maundé, situated 12 km from Gabú in Eastern Guinea-Bissau. The area of the village, as claimed by the traditional tenure system, has simultaneous claims through the national system of land concessions.

2. Access to Land in the Traditional Village Systems

In an African context, the access to land is of vital importance for the rural population, including the access to water. The villagers need land for a broad scope of activities, which makes the demand for land diversified. In Guinea-Bissau there are several categories of land, depending on the specific land use, eg, bolanha is the rice field, in rain fed areas burnt clearing is practised and a pampam for rice cultivation is achieved the first year, and it is then used for other crops during another 1-3 years in a shifting cultivation scheme (called lugar), followed by a fallow period of 5-8 years, pastorícias are the grazing areas, the common forest area is used for picking of wild berries and fruits, firewood and hunting. There are also sacred forest areas, where no other land use could be successful, through the power of the spirits, according to the people’s believe. In certain areas the access to land is becoming scarce. The rice fields are attractive, and the demand for them exceeds the actual need of the population. However, the rules for distribution of the bolanhas are strictly controlled by the local village community, initially by the founder of the village, and then by the village headman (normally in lineage structure from the founder) or eventually the village community board. Each ethnical group has its own traditional rules.

The household (fogão) members are submitted to the authority of its leader, who distributes land of different types to the women of the households and to the unmarried sons with capacity to cultivate land and take care of their own fields and the crops. The household leader is submitted to the leadership of the head of the morança, which is constituted of several households. The head of the morança had previously received the land from the village headman. The general land management is held by the village headman, but the practical land management is made by the head of the morança and the fogão.

It is hardly possible that the land granted to the head of the morança is cancelled and turned back to the village headman. Most ethnical groups consider this as a fundamental principle. The right of transfer through inheritance is also clearly defined, though there are some different customary rules. Sometimes, these rules are put in focus as they are brought in conflict with urban costums. In the Papel ethnical costum the nephew (from the mother’s family) inherits the land belonging to his uncle. However, some sons do not agree with this, and they claim that it is totally unacceptable that after many years of hard work of their father, all his "richness" is transferred to their cousin. But, they say that this is the tradition.

The field work in the different ethnical groups of Guinea has shown that in each village the land has been distributed to the different families by the family of the founder. This means that all area of the village theoretically belongs to this family, called djorçon, which is keeping the control by assuming the role as village headman. Each village has a good knowledge of the borders of its territory, which is can be confirmed by the neighbouring villages.

It could eventually happen that a family loses the right to the land, if it moves to another village. In this case, the land normally reverts to the control of the founding family, and it can be regranted to another family. However, in various ethnical groups, the right to land is recognized when a relative returns to the area of the family’s original settlement. In these cases, the elders assume an important role to recognize the historical claim to the specific area.

Some ethnical groups, eg, Balanta, consider that land cannot be sold, as it has to remain in the possession of the family. Some other groups, eg Manjaco and Mancanha, do not accept leasehold of land that is not used. However, unused land can be borrowed (free of charge) to other persons, but this habit is becoming less common. It is quite frequent that the family plants perennial trees at the boarder of the areas, as a kind of demarcation of the area with visible beacons.

3. The Fula Village Sare Delo

From this general of concept of land tenure in Guinea-Bissau, we will continue with an example from the Fula village Sare Delo in Eastern Guinea-Bissau.

Sare Delo is situated 12 km from the city of Gabú, being the commercial and administrative centre of Eastern Guinea-Bissau. There is one health centre, one school and one mosque in the village. The 1991 census indicates a population of about 550 inhabitants, being all of them Fula. The village is constituted by eight families, moranças, living quite close to each other. The word morança means place of living. These moranças are the only settlements, which means that the village is geographically concentrated.

There are in all 59 household units (fogão), which means an average of 9.3 persons per fogão. There must be at least one woman in each fogão, but a permanently living adult male is not needed. This can be understood as a practice of polygamy in these Muslims societies. The morança leader is always a man, and he can have several women in different fogão household units. However, the fogão is considered as a consumption unit.

There are in all ten neighbouring villages, without any vacant or unclaimed land in between. Some of these villages have rice fields in common along a low-lying area, with a natural access of water by the tide. As the rice fields require a common management of the water distribution, all villages with rice field in this area are considered as neighbours. The yield is mainly used for household consumption, but some cash crops are cultivated as well.

The origin of the village is not totally clear, but the elders confirm that it was funded by Malam Djamanca, who came from another village in the region of Gabú. The name of the village was derived from a person called Delo, who lived in this area before the arrival of Mr Djamanca. Sare is the Fula word for village. However, the elders could not give any further pieces of information about this previous settler and about the conditions for his granting of the land to Mr. Djamanca. The area was not used when Mr Djamanca arrived. He asked the headman (régulo) for the Gabú area, Mr Cantabá Embaló, for permission to settle down and occupy the area. The reason to move to this area was to find better land for cultivation and grazing. A skilled person in woodcraft, Mr Laibé, moved to the village when it was founded. There were no further migration movements to the village, as the Portuguese colonization did never reach the village in a direct way. During liberation war the village area was expanded, as many families searched for a refuge resort, but after Independence they returned to their own villages. However, the extended area was kept.

The social organisation of the village is following the traditional rules of Fula societies. The general land manager is the area headman, régulo, of Gabú. He is to some degree considered the general land owner, but he has handed over the management of the land to the village headmen. He delivered the land to the founder, Mr Djamanca in one specific cerimony. As a general manager of the land, he approves the borders of the village. He should be informed about land granted to persons alien to the village.

The actual village headman (Djarga in Fula) is quite young as a man, about 45-50 years. His father is still alive, but due to his age, he has retired and handed over the role as Djarga to his oldest son. Despite the age, the actual Djarga is respected by all members of the village. He is responsible for the daily land management, and he is assisted by the elders’ council and by the Muslim religious leader (Almami in Fula). The Djarga makes the distribution of land to the families (moranças), and participates in the delimitation of the borders between the different morança families and their household units (fogão). He authorizes the access to areas for extensive land use and for garden fields (small fields for intensive land use) for aliens. The Djarga is considered as owner and manager of the rice fields (bolanhas). He distributes area to each morança family. He is also in charge of the annual definition of the passages and areas for grazing. The Djarga is the village’s official representative in contacts with the local Government authority in Gabú. He is to a certain degree considered as the Government representative at the village level, though without any kind of formal denomination or remuneration.

The morança leader receives the morança area from the village headman, and distributes the fields according to the specific rules for each kind: quintal (garden plot) to the fogão household; lugar fields for intensive land use, to the fogão household and to aliens (informing the Djarga); and rice field to the women of the fogão household. The fogão household leader distributes the land that he receives from the morança leader. The male members of the fogão have access to the shifting cultivation fields (lugares) and garden fields (hortas) through less rigid rules. The access to forests, lala - extensively used area for reed and occasional crops and to palm trees is controlled by the Djarga.

Leasehold is normally not practised, but land can be borrowed free of charge. The women can lend part of their rice fields to other women, who do not have access to own fields. The men can lend their shifting cultivation fields (lugares) to other villagers, and even to aliens if the Djarga is informed.

The local government authority does not play any role for the access of land within the village, as this access is controlled by costumary rules.

At Independence, the political mobilization was a predominant feature in the Guinean society. The previous colonial structure was suppressed, including the costumary system with area headmen (régulos) and village headmen. The ruling party was organized in local branches, with committees at each village (tabanca). Therefore, the Comité da tabanca was given the authority at the village level to be in charge of the land management on behalf of the State, and the costumary system was set aside. Sometimes, the Comité de tabanca was elected from the elders and the headman, but in other cases the Comité disregarded the costumary system. However, as the costumary system is based on lineage, it could survive the political and socio-economic changes of the society. In 1992 (when the democratization started with a multiparty system), the national policy changed in favour of the traditional structure, in order to promote better conditions for development in the rural areas. In some areas, the Comité da tabanca is still considered as a local adminstrative unit, while it has no real role in land management in other areas. The Comité da tabanca of Sare Delo is nowadays only a local political branch of the ruling party, PAIGC. As a result of the democratization, the previous Comité da tabanca cannot continue to have a role in land management. This year (1998), preparations are taken for elections to local authorities (municipalities), which will demand a definition of the role of the traditional headmen and the elected municipal board.

4. Traditional Land Management Units

The land management units, which are of interest from the cadastral perspective, are not easily defined as the land parcel owned by each single person or by a nuclear family. The land units are different for the various natural resources used by the household families (fogão), but being ultimately managed by the morança leader or the Djarga. The ultimate land management unit in Guinea-Bissau is the village (tabanca), which has kept its role as a social, administrative and economic unit through the years. Even though the traditional leadership set-up is questioned by some urban and political élite, but they do have a continued administrative and para-legal authority. The village headman (Djarga) can be considered as a formal land manager, and to a certain degree the "owner" of the total land area of the village. In comparison with eg Mozambique, the Guinean village has kept a very distinct role as social/adminstrative unit at the local level, and it is still considered as the main authority at this level. As stated above, the village headman is still the key institution for the land management, and any cadastral campaign must count on him as an owner of the total village land area, though with a considerable delegation to the subordinated management units (morança) and the household units (fogão). From a cadastral perspective, the total village area could be considered as operational as cadastral units, even though the morança leaders and household leaders have quite extended and locally recognized property rights.

5. The Development of Land Use in the Village of Sare Delo

A field survey of the village of Sare Delo was done with an objective to understand the present land tenure system. An active participation of the population was given highest priority, in order to get a thorough understanding of the costumary system and how a cadastral campaign should be designed. We used the methodology of a Participatory Rapid Rural Appraisal. One part of the survey uses the villagers to describe the development of the village, regarding the population, land use and access to land. They were given the task to describe in numeric terms the increase, decrease or status quo of the parameters given, in a scale 1-10. Four periods were defined: 1) the period of the founder Malam Djamanca (1930’s-1962); 2) the liberation struggle (1962-1973); 3) after Independence (1973-1994); 4) after the first multipartidary elections (1994- ). The population describe the development of their village in the following way:

This historical matrix shows how the population describe the development of the village, and how the parameters have changed during the sixty years that the village has existed. It indicates that the village area increased during the liberation struggle, but since then it has been the same. This means that the costumary village jurisdiction has been the same since then. As the costumary land tenure system has survived and it is still the predominant system, the village area is the main unit for land management. As described above, this unit could eventually be considered as the basis for cadastral registration, while the internal distribution of land to the morança family units is still predominantly an internal issue, or at least being much more difficult to identify for the cadastral authority. It should be noticed that the village area is very stable, and this is quite important for a cadastre of land units.

A special detail should be mentioned. There is a neighbouring village called Sare Delo Mamadú. The name Maundé means oldest, which indicates a mother (or original) Sare Delo in relation to Sare Delo Mamadú. The elders confirmed that Mamadú had been created by people from Maundé, with a recognized autonomy from the mother village. It might contradict the elders’ estimation of the same village area since the liberation struggle. The important cadastral observation is that a village can parcel out an area and a new independent village can be created.

The matrix also shows that land use has changed, with an increased use of cultivated land (rice field, rain fed shifting cultivated fields, garden fields, caju plantations), while the extensively used areas (lala, grazing areas, forest) have decreased. Despite such decrease, the number of animals have increased, which is likely to challenge the ecological balance. The estimation of decreased production might be relative to the increased population, but there is also an inherent problem with the climatical conditions. The access of water has decreased in quite a dramatic way, according to the estimation of the population. It could also be remarked that the sacred forest has the same area since the foundation of the village. This area is of great cultural and religious importance for the population.

The description of the land use of the village area and the description of the land tenure system are important for an understanding of the conditions for a cadastral campaign. The village authority keeps a good control of the distribution of land within the village area, and the costumary rules are respected within the framework of the social organisation of the Fula society. We should not neglect that there are people who argue for an individualization of their land, but such a measure should require an agreement with the village authority. A premature splitting of land areas to individual cadastral units within the village would probably threaten the present social structure.

The traditional land tenure concept means that there is no land without claim of a village, which means that the entire Guinean territory is covered by village areas. This traditional claim is a kind of eminent domain, even though part of the area might not be used by the villagers. All land use is submitted to the conditions of the costumary land tenure system. The population’s estimation of the forest and grazing area of Sare Delo indicates that these areas were in excess from the beginning, but they do claim that these areas belonged to the village.

6. The Colonial Heritage

The colonialization required a way to by-pass this customary concept of land tenure. The military and economic dominance was crucial, but a legal concept was also necessary to justify the right of access to the land. The Portuguese Colonialism established a dual system with one European and one traditionally African land tenure system. The latter one was badly defined from the beginning, but there was at least some awareness and some kind of tacit recognition of the African land tenure costums.

The predominant principle was that the land belonged to the Colonial Government, and that the land could be granted to colonizers. These grants should not be a freehold right, but the concessions were conditioned by several restrictions and rules. The land was granted for a period of five years, which was the period considered sufficient to develop the land. If the land had not been developed, it should be annulled and returned to the Government. In such case, no compensation was paid to the grantee, as the concession still was temporary and conditioned by the development of the area. The right of compensation was only considered if the land had to be expropriated for public purposes, which is not the case of non development of a granted area. If the land was developed, the land concession should be converted to a definitive title, after a renewed application. This was very rare, as many grantees considered the temporary concession as sufficient, in particular with lacking resources for official inspections of granted areas.

The tenure security of land of the native population was guaranteed at an initial phase through the Civil Code of 1869. However, the Portuguese "discovery" of Guinea-Bissau dates from 1446, even though the main colonization was initiated some centuries later. In 1912, the policy of protection of the land of the native people was statued in a joint decree for Angola and Guiné (Regulamento das Circunscrições Civis para Angola e Guiné). In 1919, the Administrative Decree no. 597 for Guinea stated that the land occupied by the native people could not be part of a land concession. In 1938, a new Administrative Decree (no 27) was approved in order to permit a definition of areas reserved for the native population. The management of these areas should be according to the costumary rules.

The Decree nº 43 894 of 1961 (Regulamento de Ocupação e Concessão de Terras) provided a classification of the land in three categories, including extensively used areas. The so called 1st class land was defined as urban and peri-urban land, that was controlled by the Local Government Authorities (Câmara Municipais). 2nd class land was defined as land used by the natives (local population), submitted the costumary rules of the villages. All other land should be classified as 3rd class. It was this 3rd class land that theoretically was available for rural concessions. The categorization of the land class should be done for each case.

At Independence in 1973, it was necessary to define the legal right to the land. Thus, the first law (of Dec, 4th) stated that the colonial legislation should be kept until the promulgation of new laws. This law embraced the Land Decree of 1961. However, the Constitution stated that the land belongs to the state, which made all kind of claims of privat ownership unachievable.

During the first years after Independence in 1973, a new land law was given some attention, with a policy that the land should be used by the villages, and that the colonial land concessions was put into "brackets". Most Portuguese settlers left the country, and several colonial land holdings were abandoned and the previous Guinean labourers took them by adversed possession. New land concessions were rare during the first 10 years. However, the colonial land concessions were not officially annulled, and some people continued to use them.

In the mid 1980’s, the national policy turned towards a more positive attitude for private investments, and credit facilities were given, in particular for agricultural entreprises. This caused a rush for titles to land, and a huge amount of applications were submitted. Temporary land concessions were granted, and the grantees could apply for bank credits for their pretended agricultural activities. Even though the land was granted as a state leasehold, the Bank relied on the concept of the real property value as a collateral for the credit. As the land had no official commercial value, the only collateral could be in the investments made in the land area. If the investment failed by some reasons, there was no collateral for the Bank credit.

The new demand for land concessions continued in the colonial shape. However, there was a need and a declared interest to elaborate a new land law. The first land law commission was created in 1976, but it was not able to complete its task, due to several reasons. The second and third Commission worked in the 1980’s, with some new policy orientations, but they still faced problems to reach the final stage and an approval at the Parliament. Finally, the forth Land Law Commission was created in 1995, and it worked during two years and submitted a final proposal to the Parliament in December 1997. Its approval is expected at the Parliament session in February 1998. The submitted proposal to a new Land Law maintains the concept of an eminent domain of the state, and that land should be granted with certain conditions. The State keeps the right to annul a land concession, if the grantee does not comply with the presented development plan of the property. However, the temporary concession is proposed to disappear, and the grants should be definitive, after a proper analysis of the viability of the concession. The reasons for annulation of a concession will still put pressure on the development of the area, though it will depend on the capacity of official inspections. There is also an area limit for the concessions, that is proposed to be much lower than the present one. The previous land concessions should be converted to the new property right. The legal status of the temporary concessions will be defined in the Land Law Regulations.

All concessions should be coordinated with the village authorities. This means that a written declaration should be enclosed to the application, confirming that the village members agree with the area to be granted to the person alien to the village.

Since the Colonial period, there is an inherent problem of the land concessions, and sometimes they interfere with the interests of the population. This was one of the reasons for the liberation war and the struggle for Independence. Still after Independence, one can find examples of conflicting interests between the village population and persons that apply for a land within the village area. For this reason, the requirement of a written declaration by the village committee was introduced after Independence, but it was not sufficient in some cases. Sometimes, the president of the village committee, or the village headman, could disregard the interests of the villagers.

The differents claims to land remain in an undefined situation until a field survey and cadastral registration is made. However, for the rural areas, there is only the 3rd class that is prepared for cadastral registration, as it is designed as a land concession system, with the previous colonial procedure as a general basis. The new Land Law pays make much attention to the agreement with the village authority.

The colonial class 2, village territories, is given a general framework by the concept of village delimitation, which will permit a legal procedure and some kind of cadastral registration. The detailed rules will be defined in the Land Law Regulations. The idea is to physically identify the area of the village, demarcate the limits and define the village as local land management unit. The identification of the limits will be done with georeferenced photos from satellite images (at a scale of 1:50,000) and GPS receivers of low accuracy (2-5 meters after processing).

The official status of an eventual cadastral registration of the village territories is still not defined. It will still be possible for villagers to make an individual application for a land concession of their specific land holding. At the Congress we will present the development in 1998 of the Land Law Act, its Regulations and the specific experiences of the field work.

The cadastral maps are based on the topographical maps at a scale of 1:50,000. They were made in the 1950’s, and they have continued to be the cartographic basis of the legal cadastre. The total amount of applications of land are about 6,400, being 3,000 of them applications before Independence. About half of the applications refer to urban plots. It should also be emphazised that a considerable part of the applications have not been granted. The number of definite concessions is very reduced, but there is a big group of temporary concessions. There is a very reduced number of colonial land holdings with continued activity with the same grantee (or legal successors). These should qualify to the conversion to the new leasehold, while the other colonial concessions must be processed in a other way, if they should be legally cancelled.

It could also be noticed that the proposed Land Law Act recognizes negociation on land transfer, and that cash payments or other types of compensation are allowed. According to the costumary system, the village should be included in this negociation. However, in case of non agreement, there is no provision for a village veto concerning a land concession.

7. The Official Land Claims of the Sare Delo Village

Facing the general situation of the land concession system, the new Land Law Act and Regulations and the costumary land tenure system, the village of Sare Delo will be used as one example of claims to the village area. Without a real sample, we cannot pretend any respresentativity.

The cadastral map for the area of Sare Delo does not show any specific registred claim. However, there is a huge area marked without any reference details, covering the total area of Sare Delo. Investigation showed that the area was marked when a forest company was preparing an application for a concession for clearing and exploitation of trees. The application was submitted to the Department of Forestry at the Ministry of Rural Development and Agriculture. Consulting the Department, no further pieces of information was provided, and no specific process file was found. The Cadastral Authority (Direcção do Serviço Nacional de Geografia e Cadastro) is the national entity and should have a coordinated cadastral atlas. However, some specific types of land concessions are given by other Government authorities, but these areas should be marked at the national cadastral atlas, in order to get a complete map with the different claims. Even without any no reference, the persons in charge at the Cadastral Authority and the Department of Forestry were able to identify the company that had submitted the application. The company was contacted, and documents was required in order to restitute the concession. As the concession was designed for only forest clearing and exploitation, it was in fact granted for a restricted period, ie, ad hoc for this specific occasion. At that time it was not required to replant the area, which was launched by a governmental decree at a later stage. As the grant was conditioned to that specific exploitation, there should not be any permanent clearing right. But if the company clears the area once, it will be easier for them to claim the clearing right the next time. The concession is specific for forest exploitation, without a proper demarcation, which could cause problems in case of competing rights. Being a temporary right, the concession cannot be considered as a definitive property right.

A further look at the cadastral map showed that some villages North of Sare Delo had been covered by a village demarcation programme at the beginning of the 1990’s. Further investigation lead to the discovery that the village of Sare Delo also had been covered by the program in 1992, but without being marked at the cadastral map. The reasons for this omittance are not clear. During the field work in 1996, the elders and the village headman did not mention about this programme. At a renewed visit in 1998, they confirmed that a Portuguese man was there once, and some weeks later a document was delivered to the president of the village committee (a cousin of the village headman), to be signed and returned. Being almost illiterate, he signed without understanding the meaning of the application, and no cadastral document was delivered the village. At the visit in 1998 it became evident that the campaign in 1992 had no real impact for the village.

In a neighbouring village, Sumukunda, the village programme had also made the survey, and not even taken into consideration a land holding of 11 hectares which was granted in 1987, ie, previous to the village programme. The grantee’s mother is living in the village, and thus he is not an alien, even though he is living in Bissau. The village area marked in the process file covers the land concession, which should not be accepted, as this area in a legal way has been excluded from the marked village area. There is no reason to mark an area if it does not provide any legal support for protection of the village area.

This programme was run during some years in the beginning of 1990’s as an attempt to provide the villages with a better tenure security. The programme was postponed after a few years, when it became evident that the programme for village delimitation must have a broader socio-economic perspective and a legal framework. A new programme, named Mise-en-Valeur des Ressources Foncières en Guinée-Bissau, was designed and funds were raised from the 7th European Development Fund. It started in 1996 with methodology design and case studies. The implementation of village delimitation is to be done after the approval of the new Land Law.

The first attempt for village delimitation was not successful, and it shows the difficulties to make isolated field surveys without an analysis of the costumary land tenure system and without a complete record of this costumary system in the official cadastral system.

8. Land Titling and Land Management in Guinea-Conakry

The neighbour Guinea-Conakry was colonized by France, who developed their specific land tenure system. The general concept of land concessions was used, in order to guarantee the access to land to the French (or other foreign) settlers. The concession was definitive and could be converted to freehold land.

After Independence in 1958, the new African Government found it necessary to change the policy in order to protect the local farmers. The land concessions should not be freehold rights, but a State leasehold. However, urban plots can be granted with freehold rights. There was even a prohibition for political leaders to be granted land, even though it could be by-passed by granting to family members. This rule continued until recently, when the equal right to the land was stated, which included political leaders. The new land policy stated that the concession should be temporary during the first three years, and the development of the land should be controlled before a definitive concession.

A decentralization of the land concession system has been done, which is of much more importance in Guinea-Conakry with almost 7 times the size of Guinea-Bissau. The regional and local government authorities (Prefectures and Communes) have been empowered to grant land, though submitted certain conditions.

The concept of freehold land is defined in another way in Guinea-Conakry. Even though the land is officially held with a State leasehold, in practice all land is considered in possession of the costumary societies. This means that there should be a negociation for land acquisition, and the agreement should be stated on a written declaration and then recorded at the official Notariate. The regional department of Agriculture should deliver a stated opinion, to be enclosed to the official application to the Prefecture. After a land survey, the application has to be sent to the Ministry in Conakry for final approval.

Compared to Guinea-Bissau, Guinea-Conakry has the double age as independent nation. The Code Foncière and some Governmental regulations have defined rules for land concessions and land transfer, and a comprehensive Land Law Act is in progress in order to create an improved system for rural land management and the subsequent cadastral registration. More efforts have been made for urban land management through local plans and other urban planning tools.

9. Concluding Remarks

The tenure security of rural areas depends on the legal framework and its implementation in reality. The concept of state leasehold was conceived by the respective colonial governments, and has been maintained after Independence, though with changed policies in favour of the local farmers. There is no freehold right, but there is a right to negociation in both countries. The costumary land tenure rights are recognized, which entitles the village authority (or a specific land owner) to take part of the land concession process. Thus, there are three parties involved: the costumary owner (to be identified), the person claiming an area and the (different) governmental authorities.

The description above of the costumary land tenure system of Sare Delo in Guinea-Bissau shows some important conditions for a cadastral campaign. A registration of land must define adequate cadastral units, and define the rules for management of the land within these units, if not managed by the State Authorities. The proposed model for cadastral registration will count on the village as the most adequate land management unit, which could be used as cadastral unit. There could be a problem to emphazise the costumary village authority, but the alternative of individualized land areas would also create a certain disturbance in the traditional village structure. The capacity of the National Land Survey Authority is limited, and it would be unrealistic to aim at an individualized cadastral programme. One paragraph in the proposed Land Law Act invites the village members to apply for an individual land concession, which opens an intermediate way between the two options. The perspective must be realistic on the capacity of the Land Survey Authority. A privatization of the technical land survey services would not overcome this capacity issue, but might be an alternative to consider. A cadastral campaign must have an institutional basis, as the surveyed cadastral units must be officially recognized. Even with a simplified field survey, there must be given considerable attention to the joint analysis of the land management system, so that the village authority and the morança family and fogão units fully agree with the cadastral and land management concepts. Otherwise, one could run cadastral programmes for some years without any change of the present duality in the land tenure systems. The land concessions will continue, but they must be coordinated with the local village systems for land tenure. An official recognition of these local tenure rights should be beneficial for rural development. A cadastral campaign could try to use the village units in this recognition of the rural tenure rights.

Biographical notes

Mr. Braima Biai, MSc in Land Surveying/Cartography (1991) at the Moscow Land Surveying Institute, is the Deputy Director of the National Land Survey Authorithy of Guinea-Bissau. He is actively involved in the Projet de Mise-en-Valeur des Ressources Foncières en Guinée-Bissau. Address: SEOPCU/Direcção do Serviço Nacional de Geografia e Cadastro; C.P. 14; Bissau; Guinea-Bissau; Phone: +245 253615; fax: +245 253614.

Mr. Klas Ernald Borges, MSc in Land Surveying (1981) and PhD in Real Estate Planning (1996) at the Royal Institute of Technology, Stockholm, Sweden, is actually the long term technical assistant for Kampsax International A/S at the Projet de Mise-en-Valeur des Ressources Foncières en Guinée-Bissau until 1999. His permanent business address is Kampsax International A/S; Stamholmen 112; 2650 Hvidovre; Denmark; Phone: +45 36390700; fax +45 36772829. His address until 1999: see above.