Legal empowerment for local resource control

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Clear, long-term and enforceable use rights may offer a degree of tenure
security that does not significantly differ from full ownership – particularly in
those countries where land is nationalised, and private land ownership does
not exist at all (e.g. Mozambique). But much depends on the specific content of
those use rights, and on the conditions under which the state as holder of the
radical title may withdraw them.
Full ownership rights may still be withdrawn (“expropriated”), but only under
restricted conditions (typically including payment of compensation, nondiscrimination,
public purpose and due process; see below, section 3.3).
Security of use rights vis-à-vis withdrawals from the state depends on the extent
to which the safeguards typically found in expropriation of ownership rights
also apply to withdrawals of use rights. In Senegal, the central state can
withdraw land not only through expropriation for a public purpose (in which
case the land enters its “domaine public”) but also through registering it in its
name (“immatriculation”, which transfers the land into the state’s “domaine
privé”; article 3 of Law 64-46 of 1964). In the latter case, no public purpose is
required, and the central state can transfer the land on to third parties. In both
cases, compensation is limited to improvements (buildings, crops, trees) and
excludes the land itself (see below, chapter 3.3). This weakens the security of
local resource rights and the negotiating power of local resource users.
In addition, where continued enjoyment of local resource use rights is subject
to administrative ascertainment of vaguely defined “productive resource use”
requirements (such as the so-called “mise en valeur” found across Francophone
Africa, including Cameroon and Senegal), the security of those use rights tends
to be undermined.
Productive use requirements are particularly problematic for certain types of
resource use that are traditionally not deemed as “productive enough” for the
purposes of land legislation – such as, in many parts of Africa, pastoralism. In
these cases, conditioning protection of local resource rights to productive use
requirements may leave such rights without legal protection. Some countries
have recently taken steps to recognise pastoralism as a form of productive use.
In Mali, for instance, the Pastoral Charter 2001 and its Decree 06-439 of 2006
provide that the “habitual and prolonged exercise of pastoral activities”
constitutes “mise en valeur” and entails use rights protected against third
parties (articles 15, 17 and 18 of the Decree).