Staking a claim: The slow implementation of the 1998 rural land code restricts the development of large-scale agriculture

Given the predominant role of small-scale agriculture, uncertainties over rural land rights and ensuing conflicts have limited the development of Côte d’Ivoire’s agricultural sector. The management of 98% of rural land is according to custom, while only 2% is with a title deed. Côte d’Ivoire essentially has a dual legal framework for rural land management, although in August 2003 the National Assembly voted in favour of a law designed to reform rural land ownership. The 1998 land code attempts to formalise all customary rights with a title deed, eliminating this parallel legal framework. Resulting complexities over land ownership have made it difficult for foreign investors to enter downstream activities independently. Investments in the sector must be structured according to foreigners’ limitations on owning land, hence the popularity of public-private partnerships. Other high-potential sectors, such as cattle and livestock farming in the north, are stymied by persistent disputes and conflicts over land use.

LAWS OF THE LAND: According to customary land law, land cannot be sold. However, mass migration and resettlement of the fertile western part of the country for agricultural development led to the rise of informal land ownership measures that clashed with traditional principles. In violation of customary and statutory law, informal land purchases created ambiguities about ownership, whereby buyers believed they had purchased the land while sellers argued that they had sold the right to cultivate. Such uncertainties led to tension and conflict in the 1980s when urban youth returned to the countryside to cultivate ancestral plots that were already being worked by migrants who claimed proprietary rights.

In order to resolve rural land disputes, the government passed the 1998 rural land code, which was the first law in Côte d’Ivoire that gave recognition to customary land rights that were previously not upheld in the court of law. Prior to the new code, only land deals concluded in the presence of a notary were authorised. The law first legitimised customary rights on transitional grounds through the granting of land certificates. After a three-year period, it would then grant title deeds that could be defended in a court of law. However, given the political instability of the 2000s, regularisation has moved very slowly, with the first land certificates being delivered in June 2009. To date, only 200 land certificates have been processed. A lack of institutional capacity and funding in the transitional conversion of customary land rights and ambiguities within the law itself have hindered its implementation.

LAND RIGHTS: While landowners are not permitted to sell their plots under customary land management, they are allowed to sell rights to cultivate the soil. Customary or formal law does not endow those who have worked the soil with ownership rights, regardless of the duration of time they have worked the land. The concept of guardianship is integral to regulating the relationship between managers of the plots and those who buy the rights to work the soil. Depending on the customs, buyers of rights to work the soil are forbidden to plant perennial cash crops like cocoa and rubber to avoid conflicts over ownership. Land transfers and confusion over ownership increased during the 1970s when the government encouraged migrants to farm cash crop plots in the west. Former President Félix Houphouët-Boigny further sowed the seeds for confusion with his slogan “The land belongs to those who put it to good use.” Although the majority of deals over land rights were concluded orally, many transactions were authorised through the signing of “small papers” by village authorities. These had no legal standing, however, as notaries needed to be present to execute deals.

FOREIGN OWNERSHIP RIGHTS: Non-Ivoirians lost the right to own land in 1990. Although the 1998 land code upholds the prohibition on non-Ivoirians owning land, they are permitted to hold long-term leases that can have a duration of up to 99 years.

However, the law does not address issues of compensation for migrants who invested in plots that they were later forced to abandon given that they are not recognised as legal owners. In addition, non-Ivoirians are not able to convert land acquisitions into certificates and then title deeds. This is a particularly salient issue in the western area of Côte d’Ivoire, which saw waves of migration from other parts of the country as well as from other West African nations. Furthermore, the land code does not grant rights for migrant citizens who acquired land through guardians that sold rights to cultivate the land in the case of the death of the plot’s owner. In this case, the guardian controls the recognition of migrants’ land rights, which could be manipulated due to rising ethnic and political tensions over the last decade.

TITLE PROCESS: Local government officials and village councils are responsible for determining customary land rights. The government set up village land committees that are responsible for overseeing the land surveyors who delimit plots of land for the land certificates. The local land management committee of the sub-prefecture will then award a land certificate provided the village council gives its consent. The land certificate can be sold for the land outright or as a long-term lease. Given that it is a temporary document, the certificate needs to be submitted to the authorities within three years before a title deed is issued.

Practical considerations may deter people from converting customary land into title deeds. First, registration costs are assumed by those seeking the land certificate and title deed, which could be prohibitive for many rural landowners. Furthermore, customary landowners might also bypass registration to avoid paying land taxes. Rural landowners may also not see the value in securing a title deed given that customary authorities are much more a part of the social fabric in villages than the government and courts. Lastly, many rural Ivoirians do not have the identity documents required for completing an application with the sub-prefecture for a land certificate.

A general lack of institutional capacity and funds has also prevented the conversion of customary land rights to title deeds. The government lacks a robust presence in the countryside, which is the key component for pushing the process forward. As a result, rural landowners and stakeholders rarely have accurate information about the 1998 rural land code, which has led to the flourishing of rumours and misinformation. Given that 23 surveyors are in charge of roughly 20m ha of countryside, significant funds are needed to press forward with the initial phase of granting land certificates. In addition, ambiguities within the law are likely to make its execution more difficult. Its drafting suggests that customary land deals that preceded the 1998 law would be recognised and eligible for title deeds.

LEGAL LOOPHOLES: There is no legal framework to regularise transactions that were executed over the past 15 years, which could lead to more conflicts. In addition, the law does not make clear whether non-Ivoirians can obtain land certificates. The Ministry of Agriculture’s Direction of Rural land and the Rural Land Registry have allowed for land certificates to be issued to non-Ivoirians. Decree 99-594 suggests that non-Ivoirians and private investors would have the same benefits from land certificates despite not owning the land. A land certificate allows non-Ivoirians to recover their initial investment in the land through the sale to an Ivoirian, in addition to acquiring long-term leases. Non-Ivoirians can transfer land certificates to Ivoirians, thereby recuperating investments in the land, or the land certificate can help them acquire a long-term lease from the state.

Non-Ivoirians who acquired rights to cultivate the soil are particularly vulnerable given that the 1998 law provides bearers of customary rights, as well as guardians, power in determining whether such transfers occurred or not. According to the law, the holder of a land certificate lists the farmers working the soil who would be able to acquire a long-term lease. Despite the Ministry of Agriculture’s position that the certificate holder must allow a long-term lease for occupants of the land, the legislation remains unclear.

As part of the National Agriculture Investment Programme (Programme National d’Investissement Agricole, PNIA), the government has underscored the need to address rural land reform, emphasising that proceeding with the demarcation of rural land remained a priority. It has also proposed the setting up of a rural land database that would be equipped with maps and statistics on available land. Notably, the forming of such a tool would be in preparation for the creation of a real estate bourse. Côte d’Ivoire currently has no way to assess the market value of land given that it has not resolved legal ownership issues. Under the PNIA, the government also aims to accelerate plans to create a rural land management agency, which would be responsible for large-scale land acquisitions and securing land titles.