2.3 Land Tenure Risks

2.3 Land Tenure Risks

By Alexandra Weller

Whilst this form of land tenure application under the National Domain Law of 1964 is standard in the rural regions of Senegal, it is the degree of ‘land tenure security’ which may enhance the risk of the tenure (Bruce & Migot-Adholla, 1994). Land tenure security is defined to exist when an individual perceives that they have the right to a piece of land on a continuous basis which is free from imposition or interference from outside sources, whilst containing the benefits of labour and capital invested in the land, either in use or upon transfer to another holder (Bruce & Migot-Adholla, 1994). However, as the land for the Women’s House of Baghere is granted the local usage rights, and does not contain relevance to the legislative removal of customary land rights of lineage groups and families in rural areas (Toure & Seck, 2005), nor has been bestowed for personal usage (Hesseling, 2009), it is acknowledged that the land is neither transferable nor transmissible at law. This highlights the risk of the perceived usage of the land to the rural council, as they have the power to withdraw plots of land (Faye, 2008). A rural council may withdraw a plot for four primary reasons: to sanction noncompliance with the conditions of the allocation, particularly the productive use requirement; and in the interest of the community; the absence of development or it is no longer fulfilling development conditions of the beneficiary (Faye, 2008 & Boulenger et al., 2005 & Hesseling, 1994). Should this occur in Baghere, it poses threat to the mission of the Women’s House; providing a physical space in which members of society will be able to promote and educate on the topics of gender equality, hygiene, sanitation and human rights, as the ability to provide discussions may be delayed or consequently abolished, resulting in conflict between the likely users of the centre and the rural council. Adding to this outcome, is the rural councils power for planning; territorial development; and town planning and housing under the 1996 Code (Faye, 2008). As the architectural design of the physical envelope is reliant on outside sources of the community and Senegal as a whole, the design may be rejected if the Baghere council or community do not recognise its value or appeal to cultural practices and norms. This has the consequence where the rural council can refuse the issuing of building permits (Faye, 2008). A third recognised risk in the land tenure for the Women’s House is the land-tenure system itself, as it is induced with inefficient allocation of resources due to the rights not clearly being defined, costs and rewards not being internalised and contracts are often not legal, or enforceable (Johnson, 1972 & Hesseling, 2009). This may be a result of the absence of basic theoretical knowledge, which impedes the discourse on plan policy formulation, implementation and evaluation. However, it may induce conflict within the community and again, the withdrawal of land due to conditions of land use and development programme not being understood, or evidently provided. The World Bank (2019) has recognised the key inconsistencies of understandings and practices in relation to the National Domain Law of 1964 in the context of rural communities:

Table 12 Key inconsistencies of understandings and practices in relation to the in National Domain Law of 1964 in the context of rural communities in Senegal

Principles of the 1964 law Legal reference Local practices and interpretations

Land use is reserved for Art. 8: “Agricultural land can only Land is allotted without taking the community members be used by community members.” origin of the claimant into account.

Notions of community and community membership are unclear, especially in the case of recently subdivided rural communities.

It is forbidden to lease land Art. 18 (decree): “Land abandonment may be declared … Leases are frequent within families or with third parties, and necessary in the case of a

if the interested party stops cultivating it himself/herself.” The sale of land is prohibited Art. 19 (decree): “Land use is personal …. It cannot be subjected to any transaction.”

Inheritances are controlled Art. 20 (decree): “Land use terminates with the death of the physical person. Art. 22 (decree): Heirs obtain the use of the land to their benefit … within the limit of their ability to cultivate it and … provided that it does not result in the formation of excessively small plots.” Note: Adapted from the World Bank by A.Weller (2021). temporary inability to develop the land. The ban on selling land is well known but a land market nevertheless exists.

The communities regularize sales after the fact by deliberation. In the case of death, the family agrees to the new titleholder. The family manages transmission issues. Land remains within the family and is not reallocated. If necessary, the community regularizes inheritances through deliberation.