Legal empowerment for local resource control

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Legislation restricting compensation for land takings to private ownership
rights is common throughout Africa. In these cases, lack of legal titles
entails payment of compensation only for loss of assets other than land
(“improvements” such as buildings, wells, fences or other). This is because
the land taken is technically already owned by the state. In Cameroon, Law
85-09 of 1985 on expropriation clearly states that it only applies to private
ownership – as opposed to use rights on state-managed lands (the
“domaine national”) (section 2). Such use rights are taken through a
different process (“incorporation”), which follows steps similar to the
expropriation procedure but entails compensation only for improvements –
not for the land itself (article 23 of Decree 76-166 of 1976).
The implications of norms restricting compensation for loss of land rights to
registered ownership alone must be assessed in the light of the widespread
lack of land titles across rural Africa. As mentioned above, in Africa only
between 2% and 10% of the land has been registered (Deininger, 2003). In
Cameroon, for instance, only about 3% of rural land is registered (Egbe,
2001b, citing data from 1995). This is due to geographical and economic
inaccessibility of land registration agencies, as well as to cumbersome
procedures. The result is that much of the land lost to investment projects is
not compensated: local resource users are only compensated for the
improvements that they have built on the land. In the case of fallow or
unused land, they may not be compensated at all. They are thus deprived
of their source of livelihoods without adequate compensation. This
problem has been documented by the World Commission of Dams in
relation to several dam projects (WCD, 2000; for a specific example on the
Akosombo Dam in Ghana, see de Wet, 2000).
On the other hand, some African countries have adopted legislation that
requires payment of compensation for takings of customary rights. In Mali,
for instance, the Land Code 2000 (as amended in 2002) requires public
purpose (“utilité publique”) and “fair” compensation for the taking of
customary rights (article 43); and extends, with exceptions, the procedure
established for expropriation of private property to the taking (“purge”) of
customary rights (article 47).
In Tanzania, courts have required payment of compensation for loss of
customary rights (Attorney General v. Akonaay, Lohar and Another); and,