Exploring the issue of land law consists of determining the connections existing between the land and one or more people, in order to establish who can claim rights over it and on what terms (Rochegude 1976). For Lorenzo Cotula (Reference Cotula2006) land rights – the system of rules, rights, institutions and processes that regulate how land is held, managed, used and transferred – are the backbone of any land tenure system. Land rights consist of the right of ownership and other forms of tenure and use – such as leasing, usufruct, servitude and grazing rights – that can coexist on the same plot of land. Land rights can be held by individuals or groups (as in private property) or by the state (state-owned land, trusteeship, et cetera). They can be based on national legislation, customary law or a combination of the two. In most areas of rural Africa, customary and statutory land tenure systems coexist in the same territory, often giving rise to overlap between rights, contradictory rules or rival authorities.
On the basis of Cotula's definition, the study of the dynamics of land tenure systems in the Niger Basin entails analysing not just the development of a whole system of land-related components (the resource area, comprising land and everything related to it), but also the relationships defined by state law inherited from the colonial eraFootnote 1 and customary laws about land that exist between individuals or groups.
The southern Mali cotton basin extends across all the flood-retreat and/or flooded regions of the inner Niger Delta in the north as far as Kénédougou (now the Sikasso Region), in the south towards the border with Côte d'Ivoire, passing through Bendougou north-east of Ségou and Yorosso south-east of Sikasso. In the south-west, this region is bounded by the cercles (prefectures) of Yanfolila and Bougouni and finally to the north-west by Kita, extending to Bèlèdougou and passing through Bamako and Koulikoro. The term ‘southern Mali cotton basin’ is based on a geographical and historical perspective, since prior to the creation of the Office du Niger (ON) in 1925, cotton was cultivated in the Niger Basin. The primary motive for creating the ON was to promote modern cotton cultivation. Today, the regions developed by the Malian Textile Development Company (Compagnie Malienne pour le Développement du Textile, CMDT) are considered by some researchers to be the southern Mali ‘cotton basin’. For the purposes of this article, the cotton basin includes both the Niger Loop (flooded and flood-retreat regions) and the areas currently being developed by the CMDT.
Several communities have lived side by side in this region for centuries and have established judicial and institutional systems to manage the resource area and disputes arising from it. These local mechanisms initially came into conflict with colonial systems, before later confronting the apparatus of the modern state. Defence of customary practice intensified after independence, but the power of the state and increasing globalization after the fall of the Berlin Wall mean that peasant practices and beliefs have gradually adjusted to an aggressive, globalized environment. This adjustment is taking place against a backdrop of legal pluralism and gives rise to conflicts between the various stakeholders in the Niger Basin. The main focus of this article is to provide a comparative study of land management methods in the ON zones and CMDT regions.Footnote 2
The Office du Niger is an industrial and commercial public undertaking (etablissement public à caractère industriel et commercial, EPIC) placed under the trusteeship of the Ministry for Agriculture, Livestock and Fisheries. The CMDT is a semi-public company, in which the state of Mali holds 60 per cent of shares, and a French partner DAGRIS (Développement des Agro-industries du Sud, formerly the Compagnie Française pour le Développement des Textiles, CFDT) 40 per cent of shares. However, it is also attached to the Ministry for Agriculture, Livestock and Fisheries. The objective of the ON is to extend improvements for rice growing in the Niger Loop, while the CMDT focuses on providing agricultural consultancy to peasant cotton growers in the areas of harvesting, marketing, ginning seed cotton, and selling cotton fibre for export or to the Malian textile industry. A key difference between the two companies is that while ON land is registered to the state, land in the CMDT region is national property (domaine national) managed by influential families under the system of customary laws. Although land tenure transactions and land-related conflict in the two regions are similar in many ways, they also differ in a number of respects because the status of the land is different. In both regions, the process of individualization of property ownership is under way and is evolving apace, with the help of state policies, towards a Malian land market.
In order to compare and contrast land tenure and land-related conflict in these two parts of Mali, this article analyses the impact of colonial and post-colonial policy on land management and land tenure trends in the Niger Basin. I attempt to answer the following questions: What is the legal status of the ON and CMDT companies, and what are their management methods? What are their objectives and their impacts on land management and social relationships? In order to address these questions effectively, the analysis draws both on desk research and qualitative field research.Footnote 3 I begin by focusing on the retention of colonial laws during the post-independence period, and on the legal and institutional reforms that were introduced later. Then I analyse land management in the Office du Niger zones and the CMDT regions. Finally, I explore conflicts and conflict management in the two regions studied.
FROM THE RETENTION OF COLONIAL LAWS TO LEGAL AND INSTITUTIONAL REFORMS
From independence in 1960 until 1986, in the field of land rights and in almost all Malian legislation, former colonial law (and more specifically the decree of 1932 on registration, the decrees of 1955 and 1956 on estates and inheritance rules and the regulation of urban residence permits) were still in force in Mali.Footnote 4 The period 1986–92 was dominated by the passing of Law No. 86-91/AN-RM, the Land Act (Code domanial et foncier), and the gradual withdrawal of the state from the management of certain areas of development, thus devolving responsibility to the relevant stakeholders.Footnote 5
Since the early 1980s, the government of Mali has launched a series of judicial and institutional reforms relating to rural land management that could be viewed as new strategies to reconcile an endogenous conflict management rationale with a modern state rationale inherited from the former colonial power, despite the obvious flaws of this French model. This earlier decade of reforms was a prelude to the major institutional reforms that took place in the 1990s, along with increasing state withdrawal from the management of public affairs. The first major change was the adoption of decentralization across the territory as a whole. In 1996, the country gained 703 urban and rural communes. In 2000, the Land Act was reviewed, culminating in Ruling No. 00-027 of 22 March 2000. In keeping with the spirit of decentralization,Footnote 6 this new law allowed the use of land by groups, whether they were resident lineage associations, villages, nomadic groups or communes. However, the issue of the status of these groups as legal and moral entities remained problematic. The definition of a group of this type is a dynamic process which raises questions about group membership spanning generations. Until groups register their land, they only retain rights of customary use over it (Benjaminsen Reference Benjaminsen2007).Footnote 7
In its new strategy of institutional reforms, the state decided to resolve this situation by bringing together the various land stakeholders to draft an ambitious law promoting the development of the agricultural sector: Law No. 06-045 of 5 September 2006, the Law on Agricultural Orientation (Loi d'Orientation Agricole). This law appears to take the rights of farmers into account, as nine measures in Chapter II of the law are devoted primarily to agricultural land.Footnote 8 The law addresses the major areas of development with potential implications for farmer organizations, including the status of farmers and farms, the organization of the farming profession, training, and the land tenure system. This law not only makes provision for the enactment of decrees and implementing legislation in the process of being drafted, but also provides the basis for the establishment of a land registry.
From independence to the present day, various policies relating to development and institutional reform have resulted in the appearance of non-governmental organizations (NGOs), of non-profit associations and farmer organizations (organisations paysannes, OP) in the ON and in CDMT regions, who work not only to promote private ownership of land, but also to protect the interests of farmers. This is the case with the ON farmers' union SEXAGON (Syndicat des Exploitants Agricoles de l'Office du Niger) and the cotton and food producers' union SYCOV (Syndicat des Producteurs de Coton et de Vivriers) in the CMDT cotton-producing region.
Moreover, decentralization has led to conflicts of interest between the various stakeholders. These conflicts mean that the devolvement of certain responsibilities to rural local authorities, such as the management of communal land, is difficult or even dangerous if certain conditions are not met. The difficulty lies at the level of establishing the physical boundaries of communes, since historical quarrels or old land disputes exist between certain villages. Most land – apart from the ON land in the Niger Loop – is managed under local laws, and the transfer of jurisdiction relating to the management of this land to rural communes could give rise to violent conflicts in the future. Even in the ON, conflicts of jurisdiction exist between this organization, prefects and mayors in relation to granting rural land concessions, residential plots and agricultural fields.
Currently, several types of conflict and transaction exist not only in CMDT regions, but also in the ON zones. These transactions and conflicts are often similar in nature, but can also differ. Even though both companies operate in the agricultural sphere, the difference between the two farming regions can be explained by the fact that the two state enterprises do not have the same legal status and purpose.
LAND MANAGEMENT IN THE OFFICE DU NIGER ZONES
Although both regions are managed under the Land Act and the Agricultural Orientation Law (Loi d'Orientation Agricole), their land management structures differ and their impact on farmers and social relationships varies in the two regions. The Office du Niger was created by a decree of French President Albert Lebrun on 5 January 1932. This decree conferred on it the status of a public organization with legal standing and financial autonomy. The ON was restructured in 1994 and is now, as mentioned above, an industrial and commercial public undertaking under the trusteeship of the Ministry of Agriculture, Livestock and Fisheries. This restructuring exercise was part of the liberalization of the economy and the devolvement of responsibility from the state to private stakeholders. In the case of the Office du Niger, this meant redesigning its role. Its activities now fall within the framework of improving and developing the central Niger Delta, and focus on water management and facilities maintenance. Under the terms of a contract to transfer public services, the ON took on a delegated project management role for planning and monitoring works, maintenance of primary infrastructures, land management, rural consultancy and providing assistance for land users on developed land with supplies, inputs and agricultural equipment.
In order to carry out its activities, the ON can draw on financial resources provided primarily by the licence fee paid by land users for water services; state subsidies for maintenance of the primary network, delegated project management work and rural consultancy; and funding for specific programmes (refurbishment, extension, institutional support and support measures).Footnote 9 The regions developed may extend to cover the entire flooded or flood-retreat region from the Niger Loop to Mali.
Land status in the Office du Niger differs from CMDT regions, because state ownership of land in the ON is effectively enforced and unambiguous. ON land is registered to the state. The ON Management Decree No. 96-188/PRM of 1996 and its implementing decree define the main rules for water and land management and specify various forms of land statute, notably by establishing joint management committees to enable farmers to participate in decision making in these areas. The Office du Niger's activities are scheduled within the framework of a contract plan, which defines commitments and targets existing between the state, ON and farmers over a three-year timeframe. The Decree makes provision for various forms of potential land tenure for irrigated land. As mentioned above, the state has delegated the management of this land to the Office du Niger, which is a state-owned enterprise.Footnote 10
When the ON was restructured in 1994, the state stopped providing sole funding for work to improve and extend its surface area. The example of the Mbéwani zone is instructive in this respect as the beneficiaries were offered the option to participate in the work. From this period onwards, therefore, all categories of Malians and non-nationals had access to land, provided they had the financial resources to improve the plot or plots allocated to them and make them productive. This demonstrates how the Malian state undertook a policy of incentivizing private ownership for people settling in the ON zones in order to achieve its aim of self-sufficiency. In the Management Decree of 1996, the state defined broad outlines for involving beneficiaries in the cost of improvements:
-
1 Community areas to provide security for the most vulnerable people to be set up, with the direct involvement of the beneficiaries of improvement works. They are responsible for improvements in their area (tertiary and quaternary networks and work on plots);
-
2 Private areas for which the improvement costs for secondary and tertiary networks and plots are the responsibility of private investors. State intervention is restricted purely to the construction of the primary network. After improvement and development, investors can then achieve land ownership. The land can only be reclaimed following a process of compulsory expropriation for public use for the following reasons: non-development of plots; non-payment of the licence fee after a formal demand for payment; or breach of other terms and conditions set out in the contract.Footnote 11
-
3 Hire-purchase areas in which the state carries out all the improvements on the basis of a hire-purchase contract on areas settled by land users who can repay investments made for improvement work on secondary and tertiary irrigation and drainage networks and work on plots. Access to land ownership only occurs when the investments have been repaid.Footnote 12
A fund has been set up to reinvest repayments by tenants into irrigation projects, thus accelerating development. This long-term vision aims to create a fully privately managed irrigation development company responsible for improving the land and collecting repayments from beneficiaries to reinvest in irrigation.
ON land access policy and all recent strategic innovations are based on measures in the Management Decree of 1996. This Management Decree and implementing decree provide a legal and institutional framework for the regions managed by the ON that are suitable for development. These legal texts regulate the management of land and water for irrigation.Footnote 13 Under the terms of the decree, the Office du Niger carries out maintenance of the primary network on behalf of the state based on an annual national budget allocation, and maintains the secondary network on its own behalf from the fund that collects the licence fee paid by farmers. The ON monitors whether land users carry out maintenance on tertiary networks, with failure to do so resulting in the relevant costs being passed on to them. In terms of water management, this is a genuine move towards decentralization, which has been made possible by delegating technical and financial management of maintenance to joint committees.
Land transactions take place under a contract between an individual or group of individuals and the ON. Access to ON land is based on two main models: an annual farming contract and leasing. It is important to note that in the case of annual farming contracts, the Management Decree stipulates that in the case of family farms (exploitations agricoles familiales or EAFs) joint committees must be set up in each ON zone. These committees are: the Joint Land Management Committee (Comité paritaire de gestion des terres, CPGT); the Joint Committee for the Secondary Hydraulic Network Maintenance Fund (Comité paritaire de gestion du fonds d'entretien du réseau hydraulique secondaire, CPGFE); and the Joint Partiteur Committee (Comité paritaire de partiteur, CPP). Furthermore, a Joint Committee for the Maintenance of the Tertiary Hydraulic Network (Comité paritaire d'entretien du réseau hydraulique tertiaire, CPE) must also be created for every partiteur.Footnote 14
The Implementing Order of the Management Decree also defines the terms under which plots of land are allocated to families attached to farms. Under the terms of the Order, the area allocated to an applicant is based on a weighted average of three surface areas; the surface area in hectares corresponding to the total population of the family divided by 3; the surface area corresponding to the number of working people multiplied by 1 hectare; and the surface area corresponding to the number of draft-animal teams multiplied by 3 hectares.
More than ten years after the implementation of the Decree, allocation criteria have become unenforceable and remain fundamentally theoretical due to demographic growth and land pressure against a backdrop of the very weak pace of improvement of new areas, which currently stands at fewer than 1,500 hectares per year. Current practice is a compromise between subsistence needs and working capacity, with some small account being taken of the equipment available to the farmer. This is especially obvious in the newly extended perimeters such as Mbéwani, which was improved with the physical assistance of several hundred or even several thousand applicants where the areas of land allocated for each farm were very small. The situation in Mbéwani must therefore be considered a failure as the land users do not have the physical resources to improve the land allocated to them.
Investigations show that there is very little sharecropping in the communes of Macina and Kokry in this ON zone. However, it is commonplace in the Niono zone. The method for acquiring plots in these developed areas ranges from a letter of allocation to a farming licence, depending on the size of the farm. The Management Decree therefore specifies that the occupation of land managed by the ON must take one of the following forms: annual farming contract (contrat annuel d'exploitation, CEA), farming licences (permis d'exploitation agricole, PEA), and residential, long, or common leases.Footnote 15 These modes of land tenure all have their own specific characteristics. We will analyse residential, long and common leases first, before considering annual farming contracts and farming licences.
Residential, long and common leases
Residential, long and common leases are granted on land which has not been improved. A residential lease is a contract to develop land for residential use by holders of a CEA or PEA. Holders of these contracts or permits can receive land for residential use in villages or agglomerations located on ON land. Any other person carrying out activities promoting the development of land or the economic and social needs of the inhabitants of the zone is also eligible for a residential lease. Such a lease gives the holder indefinite rights of use. It is transferable to his legal successors and is recognized by custom and practice. It can be transferred subject to ON approval. The eviction of the land user from the land under cultivation does not entail the termination of the residential lease.
If land with a residential lease is reclaimed on the grounds of public utility, compensation is paid for investments made. The level of compensation is fixed by agreement between the parties. If no agreement is reached, the matter is submitted to the Joint Land Management Committee (CPGT), which issues a ruling based on expert advice. If the dispute is not resolved, it is then submitted to the appropriate civil court. The Office du Niger is responsible for paying compensation in all cases.Footnote 16
A long lease is the contract used for setting up and operating agro-industrial businesses on ON territory. The ON can draw up a long lease on its land with any individual or company, allowing the lessee to set up a production, processing, commercial or service company, or any other agro-industry operation. The lessee undertakes to develop the land leased in accordance with the terms defined in the contract. Long leases are granted on land which has not been improved. The costs for improvement of the land, the creation of a hydraulic network, and other installations required for development of the land are incurred by the lessee. These must be carried out in accordance with the technical standards defined by the ON and are subject to technical monitoring and supervision. When the lease expires, the lessee leaves the installations and structures in situ, without entitlement to compensation from the ON. A long lease is valid for 50 years and can be renewed by agreement between the parties. The holder of a long lease is subject to the obligations and servitudes defined by the ON.
Long leases have enabled national companies and non-national companies from countries including China, Libya and Senegal and international organizations such as the Economic Community of West African States (ECOWAS) and the Community of Sahel-Saharan States (CEN-SAD) to acquire hundreds of thousands of hectares of land in the Niger Loop.
A common lease is the contract for setting up and operating agro-sylvo-pastoral businesses on ON land. The ON can allocate unimproved land under contract to any individual or company to set up projects or businesses for production, processing, commercial activities and services connected to rice growing, or any other type of activity related to the agro-sylvo-pastoral sector. A common lease has a maximum duration of 30 years and can be renewed indefinitely by special agreement between the parties. It may contain clauses allowing the lessee to carry out works and build the structures and facilities required to operate the business. No works carried out within the period of the lease may be destroyed in the event of termination of the lease. A common lease is granted in exchange for an annual licence fee. The level of licence fee set depends on the land and water. The lessee is obliged to maintain the water network serving the land. The land covered by the lease is subject to servitudes as defined by ON technical departments. Non-payment of the licence fee and failure to maintain the hydraulic network entail termination of the contract.Footnote 17
The annual farming contract
The annual farming contract is granted for improved land. This is the primary ON land allocation contract. Under this contract, the Office allocates an irrigated plot, with or without an established seedbed (casier), to an individual or a company for rice cultivation. No distinction is made between male and female land users. Land users can also apply for a plot for market gardening or fruit growing, subject to availability. The CEA is tacitly renewable. It can be terminated by either party with a minimum of three months' notice. Holders of a CEA must farm and maintain the plots allocated on a regular basis and must also maintain the share of the hydraulic network serving their farms regularly and appropriately. In emergencies, the ON can, with prior formal notice, carry out works and services that would normally be the land user's responsibility on his behalf in order to avoid compromising harvests, damaging livestock health, curtailing the lifespan of hydraulic structures and harming the fertility and productivity of the land. Land users with annual farming contracts must pay a licence fee in cash based on the surface area of the plots allocated, taking into account the quality of the land.Footnote 18 The sanction for failure to meet hydraulic network maintenance obligations or non-payment of the licence fee is termination of the CEA. The holder of a CEA is subject to obligations and servitudes as defined in the Management Decree of the Office du Niger.
The farming licence
This licence confers the right to make use of land allocated under a CEA for an indefinite period. It is automatically granted by the ON to land users holding a CEA who can demonstrate their ability to meet increased production criteria and fulfil all contractual obligations. A PEA grants holders the right to make use of the land allocated to them for an indefinite period. The rights enjoyed by the holder of a PEA can be transferred to a spouse, descendant or recognized collateral relative in the customary manner, if they have helped to work this land. Land transfer is subject to compliance with all the contractual obligations on the part of the beneficiary. The PEA can only be shared with permission from the ON. It is granted for redeveloped or rehabilitated land or land which has recently been improved. However, in zones which have not been redeveloped or rehabilitated, land users can obtain a provisional PEA if they meet the criteria. Once the land has been improved or rehabilitated, it can be reallocated in accordance with the normal land allocation rules.
Land users whose cultivable area is reduced can choose which part of their land they wish to keep when it is reallocated. The chosen plot will be a single plot. The holder of a PEA can, with prior agreement from the Office du Niger, carry out works and build structures or facilities to promote farming. These works, structures and facilities must not degrade the land or alter or impair the hydraulic network. Provided that land users fulfil their contractual obligations, the land granted to them for farming purposes under a PEA cannot be withdrawn. When land is reclaimed for improvement purposes, compensation is paid to land users for the works they have carried out. When land is reclaimed for non-fulfilment of contractual obligations by land users, or for voluntary abandonment of the land, then land users are entitled to remove any works or facilities that can be dismantled. Buildings and facilities that cannot be dismantled and improvements that are fixed to the ground must not be destroyed or demolished by the evicted land user, and no compensation is paid.Footnote 19
Note that all measures relating to the CEA licence fee also apply to the PEA. It should also be noted that, in addition to official contracts, other forms of informal land contract exist in Office du Niger zones.
LAND MANAGEMENT IN THE MALIAN TEXTILE DEVELOPMENT COMPANY (CMDT) REGIONS
The Malian Textile Development Company was created in 1974. It is a semi-public company responsible for managing the cotton production sector in Mali. It has several roles: (1) agricultural consultancy services for small cotton producers; (2) harvesting, marketing, and ginning seed cotton; (3) the sale of cotton fibre for export and to Mali textile industries.Footnote 20 In contrast to tenures in the Office du Niger zones, land in the CMDT regions is managed by indigenous families under customary laws. Producers do not pay a licence fee to the cotton company, which acts only as a consultant, buyer and seller for the production of cotton.
CMDT regions occupy a fertile area in southern Mali, outside the Office du Niger zones. The company offers technical training for farmers and provides them with agricultural inputs. There are small irrigated areas in this region, but the scale of development is less extensive than in the ON's irrigated zones and no land licence fees are required since improvements are carried out by NGOs and/or by farmers themselves.
In recent years, land transactions have developed for a variety of reasons, including migration, demographics, and the liberal economic policy advocated by the state. Analysis of these transactions is significant as they often lead to land conflicts. In CMDT regions, transactions take place in the traditional way between members of two different families, between indigenous and non-indigenous people, or between two families or communities. In the past, these transactions in the form of land contracts were effectively a means of social integration, as land was sacred and could be leased and lent, but was never sold. However, contrary to this tradition, transactions are no longer restricted to the non-commercial approach represented by traditional land loans, and now also involve financial or commercial negotiations, although this aspect would appear to play a secondary role in some of the more remote rural regions. More often than not these financial transactions define the aim and result of the negotiations over land, and therefore express a consensus between two distinct parties on a specific subject. In the rural communes of CMDT regions, land occupation stems, in the case of autochthonous people, from the right of first occupation and, in the case of settlers, from loans, sharecropping or leasing. Farmland is therefore divided between various autochthonous lineage families in accordance with custom.Footnote 21 In these rural regions, land is obtained either by inheritance within a lineage group, by loan, by lease – or by hire-purchase, the latter model being a recent development.
In CMDT regions, the main stakeholders in land transactions are the autochthonous holders of land reserves (lineages which founded villages) and non-national applicants for farming land (foreign communities, civil service employees and development project officers). Intermediaries act as middle men between the main stakeholders for loans, sharecropping and leases. Like landowners, these intermediaries are autochthonous people living in towns such as Bla.Footnote 22 They are party to information about all farmland or uncleared land and act as middlemen between land seekers and autochthonous landowners. They operate informally and their role is to advise new stakeholders on sites in terms of accessibility, hospitality of local inhabitants, the type of land sought and the procedures to follow. They also witness land transactions.
Inheritance of land and loans are most widespread in the cotton-producing zones of the Niger River Valley in rural and urban communes. (However, these forms of transaction are less frequent in Office du Niger zones.) Although in the past access to land for descendants of founding families was guaranteed by virtue of the extensive scale of family landholdings, today demographics, the vagaries of the climate and migration mean that land is becoming scarce. Moreover, lineage land is becoming increasingly fragmented by the division of farms within increasingly large families. In Bla, for example, certain kabila (founding families) have split into 10 or even 20 gwa (family units comprising husband, wife and children). This leads to the gradual overpopulation of certain lineage estates and the consequent outbreak of family land disputes.
Today, the traditional concept of the ‘landowner’, which used to be a synonym for ‘land manager’ on behalf of the community and spiritual protector of the village land, is changing as land has assumed value and is increasingly alienable in a globalized world. Loans, a form of contract under which a person transfers the use of land for a certain period to another person with a repayment obligation in money or kind, are a very common practice in CMDT regions. Like loans, leasing is also a means of making land available to individuals. Loans, which can be expensive and involve investing in land to try to make a profit, are not conducive to creating a land-based capitalist market. The lease system, however, is a means of dividing up land and regulating social relationships. Both forms of land relationship have elements that might be seen as inspired by socialism.
In the interactions between the various stakeholders, two forms of land leasing prevail: sharecropping and plot rental/leasing. It should be noted, however, that in CMDT regions the commodification of land is not really prevalent, despite certain black market practices. It is these rare incidences of buying, leasing or sharecropping land illegally in the ON zones and the CMDT regions of southern Mali that give rise to often violent land disputes.
LAND DISPUTES AND THEIR MANAGEMENT
In general, land disputes can occur within a family (lineage or clan) or a community, or between two or more communities though they do not necessarily escalate into violence. Despite the fact that it is not possible to suppress all types of conflict, their negative impact can be reduced to prevent them from becoming violent, and mechanisms for conflict prevention and management can be introduced or reinforced.
In the Niger Basin, land disputes are entrenched and are proliferating as land becomes degraded, the population increases, and the concept of the individualization of land ownership gains ground through state development policy, together with the activities of non-profit associations and farmer organizations in the ON and CMDT regions. In fact, these disputes affect society as a whole. They occur as a result of damage caused by animals; failure to observe field and village boundaries; failure to observe rules of precedence; violation of local rules by migrants or transhumant nomads; obstruction of access corridors by farmers; failure to observe the farming calendar; sharecropping practices; and non-compliance with the pastoral charter (Traoré Reference Traoré2008). These different types of dispute can be grouped into intracommunity and intercommunity conflicts.
Intracommunity conflicts in the CMDT regions and the ON zones
Land has become a major economic issue for rural and non-rural stakeholders. Competition for access to land leads to often violent clashes. These disputes are the logical expression of the diverse range of land interests at stake, and of conflicting strategies in terms of monopolizing land and appropriating resources (Barrière and Barrière 1997). These disputes – whether over water, land or trees – reveal the conflicting objectives pursued by the various stakeholders in natural resource management. They stem from the coexistence of different perceptions of land organization and reveal the problematic relationships between individuals, between groups, and between individuals and groups in relation to natural resources. These conflicts are therefore indicative of the way in which the overall land management system operates and of the internal disputes which it generates, as well as of the roles of the various stakeholders.
In the cotton-producing regions of the CMDT, cotton is known as ‘white gold’ and is one of the pillars of the Malian economy. The development of cotton in this region can be attributed to the CMDT, which prioritized this crop when it was established, set up supervisory structures and promoted development projects in rural communities such as creating rural tracks, introducing functional literacy programmes and providing financial support. After the droughts experienced by the country in 1972 and 1982, several waves of internal migrants came to the region in search of wealth; this explains why Bambara, Senoufo, Dogon and Fula ethnic groups now live side by side with the indigenous Minianka. These factors have not only facilitated development in the region as a whole, but have created a relatively harmonious ethnic mix in villages and towns such as Bla, M'PèssobaFootnote 23 and Yorosso.Footnote 24 Reliance on draft animals for cultivation, the demographic surge and the consequent pressure on natural resources in general and land in particular due to the curtailing or absence of fallow periods are factors that lead occasional isolated disputes to break out.
The issues involved in land pressure allow us to identify five scenarios: cotton-growing stakeholders in competition for access to land; disputes within extended clan families (kabila) divided over sharing cotton revenues; landowners who are trying to assert their authority through institutions and enforcement authorities; increased investment in land by farmer organizations; and administrators trying to assert their authority through legislation relating to estates. Disputes relating to land are omnipresent and permanent in both the ON zone and CMDT regions; in CMDT regions they are related to the importance of cotton production. Much of the conflict arises from disputes between farmers during the winter period over issues relating to field boundaries and pastoralism, with disputes occurring between farmers and livestock farmers.
The ON zones and the CMDT regions are both characterized by institutional pluralism. On the one hand, the state approach is represented by the civil service and its decentralized departments. On the other hand there are the representatives of local authorities and traditional institutions (land chiefs, village headmen, et cetera) and also farmer representatives in the form of farmer organizations and farming unions. These various stakeholders now rub shoulders in rural and peri-urban areas of the countryside. Their interactions give rise to conflicts of interest, which are not necessarily violent. In an environment characterized by such a wide variety of stakeholders a land dispute can involve several types of institutional protagonists or regulations. In these conflicts, the inadequacies of institutions can become apparent, thus demonstrating their limitations and exacerbating disputes.
In conflicts in agrarian regions, jurisdictional disputes between the various institutions (chiefs, decentralized local government authorities, decentralized departments, the civil service and the justice system) are a frequent occurrence. In the CMDT regions, despite the development and proliferation of institutions, especially since the advent of decentralization, land remains in the control of landowners who are traditionally recognized as holding the rights to the land.
Disputes between farmers and between farmers and livestock farmers in CMDT regions
In CMDT regions, court records for the period 2000–7 indicate the types of dispute that occurred and were ruled on in these regions. They can be divided into two groups: disputes between farmers and disputes between farmers and livestock farmers, including migrant transhumant pastoralists.
Disputes between farmers fall into the category of claims on farmland based on customary rights. This type of dispute almost always involves two individuals. First, there are issues surrounding agricultural land boundaries. Land boundaries are contested because the traditional rules for demarcation of plots and village land are often rather approximate. The boundary markers might be a tree, a pond or a boulder and are not recorded in writing, less still marked on a map. Second, there are issues of transmissions of rights such as challenging an indefinite loan, challenging the ‘sale’ of part of a lineage estate by a beneficiary without the agreement of the other parties involved, and inheritance issues (disputes over inheritance and breach of inheritance rules).
In the first instance above, the nature of the laws relating to traditional transactions (loans and gifts) is often challenged. This situation is rendered even more acute when the main players in these transactions are deceased and their descendants then become involved in a pitched battle over the land.
There is also friction between farmers and livestock farmers over grazing land. In order to resolve these disputes, farmers are increasingly turning to the courts, thus demonstrating that traditional arbitration bodies have lost some of their authority.
Furthermore, it is crucial to note that, as in all rural regions where more customary land tenure regimes prevail, land is still held by a minority of the population, namely the indigenous population, who only transfer precarious rights of use of land to non-indigenous peoples. This situation creates a social distinction between landlord and stranger communities, discouraging to some extent agricultural investment projects by individuals, which has the knock-on effect of compromising agricultural development in the commune.
Disputes in the ON zones
In the Office du Niger zones, land disputes are frequent and take as many different forms as in CMDT regions. Some disputes present similarities, but others differ because ON land is irrigated by the state and registered in its name. Here, as often as not, disputes between farmers arise from land transactions or speculation, and inheritance issues on family farms. They can also be the result of unneighbourly behaviour on the part of farmers with adjoining plots, entailing disputes over water management in their various fields. Poor planning of these new developments means that fields may be flooded at certain times while others do not receive sufficient water. This situation can give rise to baseless accusations. Sometimes farmers destroy the small border dykes separating them from their neighbours, thus provoking an angry response. It is increasingly common to promote recourse to cooperation and dialogue to overcome this type of issue, which has a negative impact on the yield of the affected seedbeds. Each zone has its own particular characteristics. In the Massina zone,Footnote 25 for example, disputes between farmers and livestock farmers occur most frequently because the cercle of Massina is a national transhumance zone and herd movement area for the West African sub-region.Footnote 26
As stated above, ON land, unlike the fertile CMDT regions, is registered to the state and allocated to colonist farmers or private individuals. Disputes on farms sometimes occur after the death of the head of the landholding who is registered as the beneficiary of the plot. The landholding of a farm comprises residential land and productive land, with or without established seedbeds. Productive land comprises land for rice cultivation and land for market gardening. However only market gardening land can be shared between family members (the head of the landholding, his wives, brothers and sons) to provide an individual income.
All other land is farmed collectively by the family. This is why, in the event of family disagreement, this joint family capital is divided up or ‘segmented’. Plot division is becoming an increasingly common practice in ON zones. After farming with an uncle or brother for several years, many heads of landholdings now decide to set up on their own on a completely autonomous farm. The division is carried out according to the same criteria as the allocation of new developed plots in the zones based on the total population of the various households of heirs to the farmer, the number of workers in each household that has become a new farm, and available agricultural equipment.Footnote 27
After investigations bringing together different village bodies, the land is shared proportionately based on the criteria given above. However, some smallholders who are dissatisfied with the allocation often approach the courts, which frequently refer them directly to ON zone authorities. As in CMDT regions, recourse to the courts is frequent. However, an important difference is the non-violent character of conflict in the ON zones, where this category of dispute rarely leads to direct confrontation.
In economic terms, dividing up a farm has pernicious consequences. It is generally an indicator of lack of cohesion or economic decline on the farm. More often than not, families that are created by a division of this type have serious difficulty in achieving food self-sufficiency. Some believe that a change of attitudes in favour of greater individualism explains this tendency towards dividing land. Others explain it in terms of jealousy between members of large polygamous African families in which children identify with their mothers. A reluctance on the part of some workers on the farm to carry out collective tasks, especially tertiary tasks incumbent on farms after improvement works, can also be observed. The grant of a partial plot to this latter group as part of a division process can be a source of frustration to the others and create tension. Furthermore, in the ON, land speculation is growing and land disputes are endemic because the ON has become a focus for national and international investors and economic operators.
Intercommunity conflicts
Disputes between villages or groups of villages
Sharp contrasts exist between CMDT regions vis-à-vis land tenure, and traditional and modern practices are deeply enmeshed. Four different situations are identified in studies by Bagayoko et al. (Reference Bagayoko, Keita and Diakon2004) carried out in the Koutiala prefecture. These situations relate to traditional hinterland land tenure which has changed little and is still subject to customary law. In many areas, the principle of non-owner land use predominates, allowing permanent users to transfer traditional rights of use. Agricultural land has been transformed into plantations (orchards, et cetera) or been put to residential use. This transformation generates inflation and land speculation, and applies especially to peri-urban land, reflecting the attitude of city dwellers keen to appropriate a space that has been profoundly transformed by the proximity of conurbations (such as Sikasso, Koutiala, Molobala or M'Pèssoba). Finally, above and beyond the recurring interventions of the state or the break-up of agricultural land, there is a tendency for one or more indigenous lineages (and their descendants) to appropriate land and set themselves up as sole owners of estates. In general, these estates encompass several villages. In these cases, disputes which involve two villages, groups of villages, or villages and one or more individuals are frequent. Like conflicts between farmers and between farmers and livestock farmers, these disputes are managed by state, customary or municipal institutions.
Management of disputes by customary and municipal institutions
Arbitration by customary authorities is the first stage in the conflict resolution process in CMDT regions and other zones in which neo-customary or lineage-based authorities retain considerable land prerogatives and exercise considerable influence in land matters. Depending on the scope or complexity of the case, this conciliation process can call for assistance on an influential local resource person, such as an imam or a marabout. Notables and resource persons who are well acquainted with the realities of life in the commune try to reconcile the parties in conflict. According to the village headman of Bla and his advisers, for example, their intervention has resolved a good number of disputes. This method of conflict resolution by traditional bodies presents the advantage of resolving land disputes amicably. In the rural commune of Bla, the source of disputes is almost always related to reclaiming plots that have been loaned for several generations. In these circumstances, the village headman must advocate the return of land to its indigenous owner, a process that does not find favour with non-indigenous borrowers, who feel slighted. They therefore often have recourse to the municipal authorities. This process is usually effective, as in most cases the protagonists can be reconciled without resentment or incurring legal costs. However, it has some weaknesses and limitations that reduce its effectiveness and mean that it is not appropriate for more serious types of dispute.
In terms of customary dispute management and prevention, there is also the ‘animist’ procedure. In several village territories in the regions of Koulikoro, Ségou, Sikasso and Mopti, people have recourse to land chiefs after the failure of conciliation attempts by the village council (where both village headmen and land chiefs exist). Invested with occult powers, they can manage disputes according to animist procedures, which can be disastrous for the party who has unfairly tried to appropriate his neighbour's land. A strong belief in the impartiality and infallibility of this local judicial procedure makes it an effective instrument for managing disputes. Many protagonists circumvent it by refusing to submit to its authority on the basis of their Muslim faith, which does not approve of practices that are deemed to be ‘animist and evil’.
In communes in Mali in general and in the Niger Basin in particular, municipal authorities resolve many land disputes. Their strategies are an extension of those employed by the traditional authorities, but are more diplomatic. One councillor in a rural town hall used to say, ‘We tell the parties in conflict that we do not settle disputes but act as facilitators.’ Some conflicts are therefore resolved at the town hall, but the most serious disputes are brought before the courts. It should be acknowledged that some mayors are actually the source of disputes in their local areas by virtue of their own activities or their manipulation of the local population for political ends. All things considered, however, within the institutional process of decentralization and democratization mayors contribute not only to preventing and managing local disputes, but also to the economic development of the local area.
Yet situations in which traditional and modern legal systems interact and coexist mean that one party must yield ground in favour of the other. Institutions that were traditionally responsible for dispensing justice have experienced a real decline in popularity because increasingly materialistic populations prefer to have recourse to bodies delivering clear and decisive rulings rather than promoting dialogue and seeking consensus in order to create a more harmonious social climate.
Resolution by state jurisdiction: courts of law
Prior to the adoption of the Land Act in 1986, land disputes were dealt with by the administrative authorities in the person of the prefect (commandant de cercle) or sub-prefect (commandant d'arrondissement). At that time, prefects were invested with investigative police powers. Mediation and attempted mediation were organized by the civil service, assisted by assessors at prefecture or sub-prefecture level. Post-1986, in certain areas, especially in the vicinity of urban centres, farmers began to have recourse to tribunals with jurisdiction over land tenure matters. However, between 1986 and 1992, very few land disputes bypassed the customary authorities and were brought before the prefect. Some regions or cercles did not experience these types of disputes at all. It was not until after decentralization, which began in 1992, but only became permanently established in 1999, that this process began, thus weakening commandants' authority when they became prefects and sub-prefects. As has already been shown, these laws devolved investigative police work to mayors, who then withdrew responsibility for it from prefects.
When the town hall failed to resolve a dispute, protagonists went to court. Furthermore, they often bypassed the mayor and customary authorities altogether and went straight to the courts. Therefore, since the changes occurring in 1986 and 1992, farmers have shown a growing preference for recourse to judicial settlements over customary settlements, which generally do not return a clear-cut verdict. This has led to the erosion of the influence of customary authorities. Customary laws are in fact often vague and informal and they sometimes lack objectivity, fairness and transparency.
Agreements as methods for preventing and managing land disputes
Local resource management agreements (conventions locales), formerly used by communities as mechanisms to prevent or manage disputes linked to natural resources and land, already existed with endogenous names such as ben-kan Footnote 28 in Bamana Malinké areas (Djire and Dicko 2007). The term ‘local resource management agreement’ has recently been adopted by NGOs. The aim of these agreements is similar to the old farmers' agreements: to prevent and manage disputes, or to reduce recurrences exacerbated by population increases or climate events.
Agreements are produced in collaboration with farmers and the process is initiated at the request of famers. Non-governmental organizations such as JÈKASSI in the cercle of Koutiala (Sikasso) support the request, and farmers follow the entire process. The NGO is responsible for organizing consultations about the natural resources at issue, such as African locust beans,Footnote 29 livestock routes, ponds, et cetera. The farmers produce the maps themselves. The NGO in question produces accurate maps on the basis of these results and consultations. After each consultation restitution is made at every level to stakeholders in the locality. This restitution culminates in the drafting of an agreement. At a later stage, a major meeting is arranged at which the prefect, mayor, chiefs of the villages involved and project manager approve and sign it. Local resource management agreements defined as agreements between local stakeholders, notably communities, rural socio-professional groups, local authorities, territorial authorities, technical services and NGOs have emerged as an alternative means of promoting shared management of natural resources.
Since the drafting of agreements and the introduction of the Pastoral Charter in CMDT regions, disputes have decreased significantly in some communes. This is also true in the ON region where, for example, the adoption of a local agreement by the prefecture of Massina has led to a significant decrease in disputes. However, it should be acknowledged that not all agreements operate as intended. Some agreements are poorly implemented, clauses are not complied with, and the oversight mechanism is inadequate. This puts local rules at risk. Implementation issues should be resolved within a participatory framework in order to make them more effective. This type of approach should be preceded by an in-depth diagnosis of the situation. It is therefore important to reinforce local regulations by integrating them where possible into a framework corresponding more closely to state law, while retaining their roots in local culture.
As stated above, land is registered to the state in the ON and in CMDT regions it is part of the national estate and is managed by major families under a regime of customary laws. Although land tenure transactions and disputes exhibit similarities in the two regions, they also differ in a number of respects as the status of the land is not the same. Nevertheless, individualization of land tenure is gaining ground in both zones, promoted by state policy, which is clearing the way for the creation of a land market in Mali.
However, it must be recognized that these state development policies have come under threat since the fall of Colonel Gaddafi in Libya, and with the rise of Touareg irredentism and the occupation of regions in northern Mali by Islamists and MNLA Touareg rebels. This occupation of the regions of northern Mali is having a negative effect on yields of certain types of natural resources such as pastureland. Since January 2012, hundreds of pastoralists from the Mopti region in central Mali have become trapped between the flood plains of the south and the Islamists and rebels. Accustomed to successive periods of drought in the Sahel, and confronted by very limited access to pastureland, some of these pastoralists are reaching the point where they will not be able to graze their livestock.Footnote 30
CONCLUSION
In the inland Delta and flood-retreat zones, the general causes of conflict are virtually identical, with the exception of cases that are specific to various regions in the Niger Basin. As has been shown, these conflicts demonstrate, on the one hand, that the decentralization intended to resolve or diminish land tenure disputes has in fact exacerbated them, and on the other hand that local institutions are undergoing a process of change that is gathering pace with the economic development and democratization set in motion in the 1990s.
The examples of disputes discussed above demonstrate the problems associated with the coexistence of two forms of legitimacy in a pluralist legal system. The potential for disputes linked to land tenure becomes significant when a gulf exists between land tenure issues and the law. These problems create confusion and make land rights ambiguous, while increasing insecurity relating to land tenure. Achieving security is based not just on legality or land registration, but on an assurance that the state (which exercises direct land authority in the ON) or customary authorities (who are central to land mediation in other zones, including the CMDT region) are able to protect these rights.
Furthermore, people are not familiar with the large number of complex laws. In practice, legal mechanisms for restitution in the event of loss of land access do not operate sufficiently well to enable communities to be better informed. The complexity of the legal texts precludes communities from mastering them, hence the need to make them easier to understand and assimilate, not only through rules and local resource management agreements based on people's everyday experience, but also by translating the legal texts into national languages. In fact, power struggles between jurisdictions illustrate an initial level of complexity, as each assumes the other is usurping its legal status or even posing a threat to its leadership or property. The problem is then exacerbated when populations try to play jurisdictions off against each other for maximum benefit. The values on which their relationship with material goods and money was formerly based has evolved significantly over time and under the influence of ‘modernity’.
The process of the individualization of land tenure which began in the colonial era continues today and has accelerated over the last twenty years with new state development policies. This phenomenon is demonstrated by the proliferation of stakeholders and their increasingly complex role in land tenure. In recent years, agricultural modernization and privatization policies have led to large-scale investment by large and small national and international companies in the Office du Niger region. This raises questions about the impact of these investments on the people of the Niger Basin in the future (Diawara Reference Diawara2011).
Furthermore, major clan families known as kabila are fragmenting as a result of disputes linked to sharing income from farming. Land tenure disputes that used to be managed via traditional mechanisms are increasingly being brought before the courts, which deliver clear-cut verdicts – with the limitation that usually these cannot be applied on the ground. Alongside traditional farmers and pastoralists, new national and international NGOs, non-profit associations, local government authorities and large and small private farmers are making an appearance.
The emergence of these stakeholders, state institutional reform policies relating to decentralization and fine-tuning of laws, and the drafting of legislation are helping to promote cooperation and reinforce economic liberalism and individualism, and thus potentially democracy. This situation is complex, however: it is characterized by a restructuring of customary land tenure, but also by the partial or full recognition of certain customary laws relating to land tenure. This inevitably reinforces legal pluralism or the creation of a hybrid legal system.
Thus analysis of the dynamics of land tenure systems on the Niger Basin in Mali shows us that the trend in the development of land tenure systems is towards greater privatization by groups or individuals. This situation is inevitable in the context of changes in attitude and the monetarization of land transactions. Although the process of individualization of land tenure management in farming communities may possibly be irreversible, institutional reforms must be carried out cautiously, methodically, and with patience and determination. It is necessary to adopt a pragmatic approach in order to reduce their impact on rural populations. If this is not the case, political authorities run the risk of provoking popular uprisings that may culminate in violent social, economic and political crises.
SUPPLEMENTARY MATERIAL
This article was translated from French by Marianne Chalmers. The original French version ‘La dynamique des systèmes fonciers dans le bassin du fleuve Niger au Mali’ is available via the journal website at http://journals.cambridge.org/AFR.
