LITERATURE REVIEW OF LAND TENURE IN NIGER, BURKINA FASO, AND MALI CONTEXT AND OPPORTUNITIES August 2014 This study was produced with funding from the UK Department for International Development (DFID) as part of the project development phase for Scaling Up Resilience for Over One Million people in the Niger River Basin of Niger, Burkina Faso, and Mali (SUR1M), one of 10 projects across the Sahel Region for which a Concept Note has been approved by the DFID-funded Building Resilience and Adaptation to Climate Extremes and Disasters (BRACED) Programme. The SUR1M consortium is led by Catholic Relief Services, and brings together CAFOD (Catholic Agency for Overseas Development), Caritas Développement (CADEV) Niger, Catholic Organisation for Development and Solidarity (Organisation Catholique pour le Développement et la Solidarité) OCADES Burkina Faso, Caritas Mali, Farm Radio International (FRI), United Nations Development Programme (UNDP), Agrometeorology, Hydrology, Meteorology (AGRHYMET) Regional Centre, Research Programme on Climate Change, Agriculture and Food Security (CCAFS), and Tulane University. The opinions expressed in this paper are those of the author and do not necessarily represent those of CRS, DFID, or any other organizations mentioned herein. Cover photo: Men and women from the village of Tourbey in western Niger work to build a water catchment basin ahead of the annual rainy season. The villagers are beneficiaries of a CRS Cash-for-Work project, in which land improvements are undertaken for cash payments. 16 April 2014, Tourbey, Ouallam department, Tillaberi region, Niger. Photographer: François Therrien for CRS Copyright © 2014 Catholic Relief Services For any commercial reproduction, please obtain permission from [email protected] or write to: Catholic Relief Services 228 West Lexington Street Baltimore, MD 21201-3413 USA LITERATURE REVIEW OF LAND TENURE IN NIGER, BURKINA FASO, AND MALI CONTEXT AND OPPORTUNITIES August 2014 Author: Oliver Hughes, CRS Niger i TABLE OF CONTENTS EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 LIST OF ACRONYMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 ASSESSMENT OBJECTIVES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 METHODOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 FINDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 SECTION A. The current land tenure context – legal frameworks and customary practice.................. ... ..... ... ..... ... ...9 NIGER.................. ... ..... ... ..... ... ..... ... .10 BURKINA FASO.................. ... ..... ... ..... ... ...16 MALI ......... .... ... ..... ... ..... ... ..... ... ..... .24 SECTION B. Land tenure-related development interventions..........30 NIGER.................. ... ..... ... ..... ... ..... ... .30 BURKINA FASO.................. ... ..... ... ..... ... ...34 MALI ......... .... ... ..... ... ..... ... ..... ... ..... .38 CONCLUSION: OPPORTUNITIES FOR INTERVENTION . . . . . . . . . . . . . . . . 46 Recognizing and recording local land rights ... .. ...... ... .... .46 Strengthening capacity to develop effective land management systems .. ... ....... .. ...... .. ..... .... ...47 Interventions that improve women’s land rights, including legislative reform .... .. ...... .. ...... .. ..... ....47 Enabling herders to access grazing resources through locally-negotiated resource management agreements............48 RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 ii EXECUTIVE SUMMARY This paper seeks to lay out options for engaging with the complex issue of land tenure as it relates to broader social, economic, and environmental resilience in the Sahel regions of Niger, Burkina Faso and Mali. Particular focus is given to vulnerable groups such as women and pastoralists and to interventions that would ensure that these groups are not disproportionately impacted by the pressures on land and climactic change that threaten tenure security in the region today. A review of existing statutory and customary land tenure systems in the three countries reveals broad similarities. Customary tenure systems continue to predominate, especially in rural areas, in spite of statutory efforts to ‘modernize’ the tenure landscape in recent decades. Efforts to devolve land management responsibilities to local institutions have not been wholly effective, as local administrative bodies often lack the resources and capacity to realize the provisions of land legislation. In this context, the clash of traditional and modern systems can cause long-term uncertainty, result in conflicts over resources, and undermine land tenure security for rural communities. Two groups are especially vulnerable to tenure insecurity: women and pastoralists. Women suffer disproportionately as a result of long-standing practices in which they are routinely disadvantaged in land inheritance. In the few cases where customary practice has allowed for women’s access to land, moreover, increasing pressures on land are combining to erode this access. Pastoralists, meanwhile, are often excluded from local decision-making bodies, leaving them politically disadvantaged in newly devised means for negotiating land use. Decreased land availability is limiting grazing areas available to transhumant and nomadic herders, leading to a rise in resource conflicts and eroding the traditional systems of negotiation that have provided for movement of herds – the critical factor in enabling pastoralist resilience to long-term climate change and weather events such as droughts. Interventions that have sought to address these challenges have employed a variety of approaches. The lessons they offer are not always intuitive. Efforts to seek full land ownership titles are not common, reflecting the prevailing legal frameworks. Instead, projects have focused on aligning customary and statutory systems through registration of customary rights. Even where this is advocated, prospective projects 1 are advised to remain flexible in how customary practices are captured, allowing for variety of local conventions and norms rather than trying to ‘fit’ existing practices to modern statutory categories. Women’s land tenure security has not been successfully transformed in many cases, which reflects deeply rooted social and cultural opposition to the idea of women’s equality in land tenure. Of the many programs that tried to address this problem, Mali’s Alatona Irrigation Project was probably the most successful. This project opened women’s access to limited titling to irrigated plots, promoted joint titling for farming households, and allocated shared lands to women’s organizations. Another finding is that making water access points open access resources does not necessarily benefit pastoralist mobility, but in fact is more likely to lead to environmental degradation through over-intensive grazing. Pastoralists’ access to land is best conceived of through the lens of water access, negotiated through traditional ‘home area’ grazing privileges between herder groups and sedentary farming communities. The review suggests that there are few ‘quick wins’ in land tenure for the Sahel region. Instead, progress may better be achieved through process-oriented interventions that focus on fostering local dialogues: implementing conflict resolution mechanisms, developing local land use charters through participatory approaches, and engaging women and men in discussions on the gender dimensions of land ownership and access. These approaches, coupled with capacity building of local decentralized institutions, would lay the groundwork for long-term transformations of the realities of land tenure for the Sahel’s communities. 2 LIST OF ACRONYMS AFD A gence Française de Développement (French Development Agency) AFPR A ttestation de Possession Foncière Rurale (Rural Land Certificate) BRACED Building Resilience and Adaptation to Climate Extremes and Disasters CCFV Commission de Conciliation Foncière Villageoise (Village Land Conciliation Commission) CFR C harte Foncière Rurale (Rural Land Charter) COFOCOM C ommission Foncière Communale (Communal Land Commission) CRS Catholic Relief Services CVD Conseil Villageois de Développement (Village Development Council) CVGT Commission Villageoise de Gestion des Terroirs (Village Land Management Commission) DFID Department for International Development DRR Disaster risk reduction ECOWAS Economic Community of West African States EWRG Early warning/response groups GIZ Deutsche Gesellschaft für Internationale Zusammenarbeit (German Society for International Cooperation) GRAF Groupe de Recherche et d’action sur le Foncier IGB Institut Géographique du Burkina (Burkina Geographic Institute) IIED International Institute for Environment and Development LOA Loi d’Orientation Agricole (Agricultural Framework Law) MCA Millennium Challenge Account MCC Millennium Challenge Corporation NGO Non-governmental organization NRM Natural resource management 3 PACT Programme d'Appui aux Collectivités Territoriales (Program to Support Local Government) PADON P rojet d'appui au développement économique de l'Office du Niger (Project for support to the economic development of the Office of Niger) PAP Project-affected person RLGP Rural Land Governance Project SFR Service Foncier Rural (Rural Land Service) SILC Savings and Internal Lending Communities SNV Stichting Nederlandse Vrijwilligers (Netherlands Development Organization) SUR1M Scaling Up Resilience for Over One Million people in the Niger River Basin of Niger, Burkina Faso, and Mali TGI T ribunal de grande instance (Local court, Burkina Faso) UEMOA Union économique et monétaire ouest-africaine (West African Economic and Monetary Union) USAID United States Agency for International Development 4 ASSESSMENT OBJECTIVES Scaling Up Resilience for Over One Million people in the Niger River Basin of Niger, Burkina Faso, and Mali (SUR1M) is one of 10 projects across the Sahel Region for which a Concept Note and Project Development Grant have been approved by the DFID-funded Building Resilience and Adaptation to Climate Extremes and Disasters (BRACED) Programme. SUR1M is designed to reduce one million people’s risk to drought and flood hazards in 30 communes in the Niger River Basin. Project interventions will focus on livelihoods and malnutrition, natural resource management (NRM) and climate adaptation, governance with disaster risk reduction (DRR), women’s participation and leadership in community-level decision-making structures and bodies, collective learning, and evidence-based decision-making, positioning communes and villages to make behavioural and institutional changes. This will be evidenced by an uptake in sustainable natural resource management, participation in Savings and Internal Lending Communities (SILC) groups and early warning/response groups (EWRGs), strengthened market linkages, use of climate data for decision making, improved nutrition, diversified and improved revenues, more equitable land usage and ownership, and more secure assets. In preparation for the full project implementation phase, CRS/SUR1M has commissioned a literature review to inform inclusive approaches to land tenure in the Sahel based on local experiences and successes. The focus is on the most inclusive options for women and pastoralists in particular, while identifying and analysing costs and success factors that can strengthen communes’ capacity to manage livestock mobility, customary land rights, and conflict. 5 INTRODUCTION In Niger, Burkina Faso, and Mali, increasing land pressure and insecure land tenure are compromising agro-pastoral production systems as they seek to adapt to climatic variability. These systems, which have proved highly resilient over centuries, have enabled both pastoralist herders and sedentary farmers to mitigate the impacts of long-term climate change and environmental shocks such as drought. Increasingly, however, the socio-economic mechanisms that underpin these systems are coming under threat. Mobile livestock keepers are finding it harder to maintain rights of passage in an agricultural landscape increasingly tightly occupied by fields, whilst land tenure insecurity amongst dryland farmers discourages adaptation efforts aimed at increasing crop productivity. The removal of common lands containing higher-value resources such as wetlands, land close to water sources, and woodlands has further impacted the ability of the Sahel’s sedentary and nomadic populations to sustain their dryland livelihoods. The International Institute for Environment and Development (IIED) Issue Paper, Managing the Boom and Bust: Supporting Climate Resilient Livelihoods in the Sahel, pinpoints demographic change, urbanization, greater market integration, and large-scale investment flows as the reasons behind rising land values in the Sahel. Increasing fragmentation of family farms resulting from demographic growth and farm subdivision through inheritance is creating a long- term trend towards ever-smaller plots, as documented in Mali’s irrigated Office du Niger scheme. The pressure for land has its greatest impact in areas held under customary tenure. In Mali, Burkina Faso, and Niger, these are overwhelmingly in rural areas. This situation persists despite the efforts of decentralization policies, which have sought to devolve management of land tenure systems to the local level. In many cases, efforts to impose modern statutory reforms over customary practices have led to conflict over resources. Women and pastoralists are particularly affected as vulnerable members of society whose access to rights in practice often fall short of those enshrined in law. (Hesse et al, 2013.) 6