Since colonial times, landholding has been characterized by a situation of legal dualism, in which both a state-sanctioned property regime and a communal neocustomary regime coexist. This research constitutes an expansion of my dissertation research examining the 2009 Burkinabè land reform and its aftermath which shows the emergence of novel relations between state and common (i.e. between state and (neo)customary property regimes) with the emergence of unforeseen hybrid land management institutions. My work showed that in the Burkinabè case as well as in other West African settings, contrary to claims in much of the titling literature, the shift from a situation of ubiquitous state property in the 1980s to the legal or formal recognition of customary property rights in the 2000s, has failed to systematically improve the poor or landless peasants’ livelihood. This research instead draws attention to the limitations of the formal recognition of customary property rights. Although it probably constitutes a necessary step for rural social justice and economic development, the mere legal recognition of customary rights is insufficient: the role of the state has too long been minimized by northern-imposed neoliberal doctrines and internal conflicts over the use of state power, and ‘market-oriented’ land reforms have equally destabilized customary land ownership regimes, which has resulted in creeping processes of land commodification and proletarianization of the peasantry.
This article pursues two main objectives. First, it proposes to open an interdisciplinary dialogue between two literatures. The scholarship on rural land property rights has long argued for the necessary formal recognition of customary property in sub-Saharan Africa, either to accelerate land commodification or to protect users' land rights. Scholars of the agrarian question have claimed that changes in land use, the proletarianization of the peasantry, and the transformation of social and economic relations are but consequences of the penetration of capitalist relations in rural areas (Banaji, 1976; Bernstein, 2010; Byres, 1996). However, the literature on rural land property and titling has focused on legal and de facto property relations as the primary determinant of both economic inefficiency and social inequalities (Atwood, 1990; Cotula, Toulmin, & Hesse, 2004; De Soto, 2000), not taking sufficient account of long-run changes in agrarian class structures and social relations of production.
Second, this research examines the current state of rural land management in several sub-Saharan African countries at a time of profound transformations in rural land property relations. Land tenure laws and practices in sub-Saharan Africa have followed different paths in states’ attempts at solving or burying the tensions between neocustomary land tenure and statist property. We argue that the sub-Saharan countries studied here may be represented on a continuum of relations between state property and neocustomary landholding, where at one end of the spectrum, countries such as Mauritania abolished customary tenure and declared the state as sole owner of land. At the other end of the spectrum, Burkina Faso (following the footsteps of the landmark 1998 Uganda land reform) passed some of the most radical land reforms in Africa and fully recognize customary or community property, structurally reducing state property to meager areas.
Between these two extremes, Senegal represents a case where the State owns and manages the land in the general interest of the nation, but marginally recognizes customary rights and community land management at the local level. Still in between but much more favorable to customary rights are the case of Ivory Coast, in which the state does recognize customary land tenure, but only as transitory rights of inferior value to titled property, and that need to be formally registered within a certain time to be valid. This detailed and empirically grounded study of sub-Saharan African current agrarian transformations produces a novel analytical frame that envisions land law reforms as the outcome of competition and compromise between public and customary regimes. My previous research on the Burkinabè case notably points to the existence of new forms of state interventions that depart from the top-down approach of the developmental state, and build an unprecedented alliance with customary communal property and the peasantry.