Mbane, Fanaye, Ndiaël, Diokoul, Dodel, yesterday and today, the coast of Dakar, Madina Wandifa or Ndengler; Here is a sample of the many land conflicts which, by their seriousness, have marked our country in recent years. The President of the Republic himself revealed to the Senegalese a few months ago that more than 90% of the conflict alerts he received were related to land. The first authority of our country recognizes that land has become one of the most serious factors of disturbance to public order with which our country is confronted.

However, since the first years of our independence, Senegal has had land legislation which aimed, while conforming to the political orientations then in force (socialism), to constitute a relevant framework for the promotion of economic development. and social of the country. This legislation, which has stood the test of time and the socio-political evolutions of our country, has revealed limits which have aroused mistrust in its regard.

Among these limitations, we can note that it has not succeeded, as it was intended, in replacing the traditional system of land management which is still very significant in many areas, has proved ineffective in some of its provisions, does not constitute an effective legal and institutional framework for promoting investment in agriculture, while safeguarding the interests of the populations, in general, and of small producers, in particular, generates many conflicts, sometimes bloody, and constitutes a factor serious social unrest.

What happened to bring us to this situation? What are the consequences of this crisis on the social climate of our country and on our economy? And, finally, what lasting solutions would be possible to stem the evil?

I: The sources of the land governance crisis

We understand, following the Ipar (Initiative, prospective agriculture), land governance as being the system composed of "Political and administrative structures and processes by which decisions relating to access and use of land resources are taken and enforced, including how land disputes are settled”.

In addition, we will focus our developments on the management of land in the national domain as defined by law 64-46 of June 17, 1964 relating to the national domain, i.e. all unclassified land in the public domain, not registered, and whose ownership has not been transcribed to the Registry of Mortgages on the date of entry into force of the law. They are classified into four distinct categories:

- urban areas;

- classified areas;

- land areas;

- pioneer areas.

The relevance of this classification also challenges us today.

I: The causes of the crisis

1.1 A flawed legal framework

Land governance in Senegal suffers from a weak and regularly violated legal framework. Professor Amsatou Sidibé, in the review of the Economic and Social Council, published in February 1997, defined the spirit of the law on the national domain in these terms: "The 1964 law on the national domain is an original synthetic law pursuing two essential objectives: the socialization of land ownership more in line with the Negro-African tradition and economic development”. She then reports the assertion of President Senghor, speaking of the law on the Dn (national domain). According to the latter, it was a question of “returning from Roman law to Negro-African law, from the bourgeois conception of landed property to the socialist conception which is that of traditional black Africa”.

It is clear that the socio-political context of the enactment of the law on Dn has changed. The last two regimes in Senegal made no secret of their liberal option. They have also placed agriculture at the forefront of Senegal's development priorities. However, precisely, the work held on May 2 and 3, 2016 in Dakar as part of the establishment of a platform to facilitate investments in agriculture in Senegal and which brought together farmers, loggers, pastoralists, breeders and bankers led to the conclusion that the land issue constitutes a real obstacle for the financing of Senegalese agriculture.

It therefore seems that our land legislation, which essentially dates from the first years of our independence, is today out of phase with the political orientations of our country and the demands of its development in terms of the institutional environment. Also, an increasingly acute civic awareness is being built in relation to aspects related to the rights of citizens over natural resources, reinforced by the constitutional reform of 2016, to the protection of nature and to sustainable development. The position of civil society on these issues amplifies this phenomenon, which must be taken into account by the public authorities.

This perhaps leading to this, the law on the national domain, in spite of its noble objectives, was a very brutal questioning of the traditional land tenure system. Political will was not enough to have this reform accepted by a large section of the population. The law on the national domain is, without doubt, one of the most decried laws in our history. As a result, traditional modes of land management remain.

The study on the development of "criteria and conditions for rational and sustainable land governance by eco-geographical zone in Senegal", carried out by Isra and Ensa, validated in March 2018, revealed that the The dominant access to land remains inheritance, which is banned by land legislation even if favorable provisions are made for the heirs in the reassignment of the land of a deceased assignee. Borrowing and renting are still appropriate, again according to this study, alongside allocation. We even note in the decisions of local authorities, a frequent substitution of customary norms for rules of positive law. The application of land legislation therefore remains problematic in our country.

1.2 Insufficiently elaborate wording of the texts

To these evils is added a not sufficiently elaborate formulation of the texts. The texts relating to the national domain and the attributions of local authorities in the land domain contain concepts that are not sufficiently precise. This makes their application difficult and opens the way to sometimes abusive interpretations that can generate conflicts. It is thus the notions of "member of the community", of "development", of "capacity of development" and "of land for cultivation and clearing".

We were a little surprised not to hear mentioned in the debates on the Ndengler affair, the provisions of article 3 of decree 72-1288 of October 27, 1972 relating to the conditions of allocation and decommissioning of lands in the national domain. included in the rural communities, amended, which provides, in its first paragraph, that “the assignment may be pronounced in favor either of a member of the community or of several members grouped together in an association or cooperative”. It should be noted immediately that this provision in no way means that a person who is not a member of the community cannot have access to land in it. We will return to the procedure provided for this purpose.

1.3 Legal discomfort

Another important limitation of land legislation relates to the vagueness and legal discomfort noted since the entry into force of the Cgct. This fact stems from the non-adoption of the implementing decrees of the Cgct, but also from the absence of reform of decree 72-1288 which specifies the procedures for implementing the powers of local authorities in the management of Dn lands. . The 1972 decree concerned land located in rural communities and related to the powers of the rural council. Rural communities having disappeared, this text should be adapted to the new situation. Which is not yet the case. No text therefore currently governs the powers of allocation and decommissioning of land in the national domain of the municipalities conferred by article 81 of the Cgct.

It is also necessary to note the seeds of conflict between the cities and the communes constituting these cities about competences in matters of subdivision (art 81 and art 169). Indeed, from the provisions of articles 81 and 169 of the Cgct, it follows that the powers in terms of subdivision are rather devolved to the cities. This causes teeth grinding in some localities.

1.4 Lack of control over land capital

Local authorities are also confronted with the lack of control of land assets Indeed, all the communes of Senegal, whether they are “urban” or “rural”, are confronted with the problem of control of their land assets. At the origin of this phenomenon, we must first note the lack of materialization of the physical limits of local authorities. It is, under these conditions, very difficult, even sometimes impossible, to identify, with precision, the lands which come under each local authority. This increases the risk of land conflict between local authorities.

To this must be added the absence of land use planning. However, this responsibility falls to the municipality. As a result, perhaps, of the absence of land use planning, there is no information system making it possible to monitor land management operations as well as the evolution of the land assets of municipalities. Even the file and the land register provided for by decree 72-1288 of October 27, 1972, which could help with this, have disappeared from most local authorities or are not up to date.

1.5 Flaws in the control of state acts

Another important factor in the generation of land conflicts is found in the flaws in the control of state deeds. The development of land disputes is largely encouraged by the inefficiency of the administrative control of state acts both at the level of State representatives to local authorities, namely prefects and sub-prefects, but also at the level of other decentralized services. involved in state affairs.

The effectiveness of the review of legality is often called into question, as is the involvement of high authorities in the decisions of CTs and BRPs The judgments rendered by the Supreme Court on disputes relating to the review of legality and acts of local authorities make enough account of what we have just stated.

Indeed, in a very high proportion, the deliberations of the local authorities brought before the administrative judge are annulled, whereas they had already received the approval of the representative of the State. However, the judge and the representative of the State have, within the framework of the control of the legality of the acts of the territorial collectivities, the same mission, namely: the verification of the conformity of the act of the territorial collectivity with the law. If there is such a discrepancy between the positions of the two "controllers", there is obviously a problem somewhere.

II: The consequences

2.1 A proliferation of land disputes

The many manifestations that we are currently registering, which are caused by not always satisfactory land management, are serious warnings and can degenerate if we are not careful. They translate, in places, outbursts of frustrations too long contained. The consequences of land disputes are sometimes very pernicious and even affect relations between members of the same family, the same village or neighboring villages who have always lived in peace because traditional mechanisms made it possible to settle conflicts.

In this perspective, do we have the right to reduce the case of Ndengler and even others, to a conflict between traditional mode of land management and positive law? Isn't it also a confrontation between law and rights? In the Ndengler case and in other recent cases, certain parties have exhibited perfectly legal titles which confer on them rights. What would then establish the rights of protesters? The people's attachment to their land cannot be considered a whim. It has historical, cultural, economic, social and sometimes even religious roots.

The soil constitutes a vital space where the populations who live there have developed, since their ancestors, the activities necessary for their life and their survival (agriculture, breeding, fishing, harvesting of honey, fruits, leaves and roots to heal themselves). , find materials to build their shelters, etc.). Telling these populations that they no longer have rights to this land, in the name of the law on the national domain, seems to be a problem.

The State of Senegal made no mistake about it by proposing to the Senegalese people, who adopted it by referendum on March 20, a constitutional reform which enshrines the rights of the Senegalese people over natural resources in these terms: "Natural resources belong to the people. They are used to improve their living conditions. The exploitation and management of natural resources must be done transparently and in a way that generates economic growth, promotes the well-being of the population in general and is environmentally sustainable. The State and the local authorities have the obligation to ensure the preservation of the land heritage”.

The operationalization of this constitutional provision should make it possible to provide compensatory measures each time a portion of the land has to change destination to cover the impact of this change on the lives of the populations concerned. The formulas that allow it must be initiated.

2.2 The development of land speculation

Land areas, especially those bordering large cities, are the scene of a dazzling development of land speculation. Land transactions outside the legal framework are observed. Land in the national domain is sold to wealthy people who, on the basis of a simple “deed of transfer of pain and care”, obtain deliberations from municipal councils. The deliberations thus obtained constitute the basic documents for land title applications. What about a land title obtained under these conditions? This practice is nothing other than "laundering land speculation" and the deliberative bodies of local authorities, together with the authorities responsible for monitoring the acts of local authorities, are its accomplices. It should be recalled, in this regard, that article 3 of decree 72-1288 of October 27, 1972 prohibits any transaction on land in the national domain, in particular any sale or lease and that the penal code, in its article 423, punishes 'a prison sentence of six months to three years and a fine not less than 50,000 FCfa for anyone who concludes or attempts to conclude an agreement relating to such land.

The development of land speculation has given rise to a new breed of business agents known as "land coxeurs" whose job is to bring together, for remuneration, potential buyers with peasants whose social situation could push to sell their land. This practice, although widespread in certain areas, is morally reprehensible and legally reprehensible. It is fertile ground for the development of what is known as “land grabbing”. This refers to the controversial acquisition of large tracts of agricultural land from developing countries, by transnational and governmental companies (Wikipedia definition)

2.3 access to land made difficult

Senegal is a country where an important part of the economy is based on agriculture. However, agriculture is not practiced between heaven and earth but on earth. Access to land is therefore a challenge for the development of agriculture and all the infrastructure that must accompany this development. I recalled, above, the conclusions of the work held on May 2 and 3, 2016, in Dakar as part of the establishment of a platform to facilitate investments in agriculture in Senegal, which pointed to the land issue as being a real obstacle for the financing of Senegalese agriculture.

During a meeting on access to land held in Saint-Louis in 2016, a representative of the populations said: "the populations of the river have a phobia of agro-industry". Between the need to make land available to investors and the phobia caused by these investors at the population level, there is a gap to be filled. This, in my humble opinion, is the issue of access to land, because this is the nest of the seeds of many land disputes.

III: some areas of solutions

3.1 Reform in depth

land legislation

It follows from the foregoing that a profound land reform is necessary. This reform must be designed in a transparent and inclusive manner in order to promote land governance that is "socially acceptable, politically sustainable, economically profitable and ecologically sustainable" (as Mr. Cheik Omar, executive director of Ipar, pointed out in an interview given to Sud Quotidien on 01/25/2016).

Mr. President of the Republic, Macky Sall, had, by decree n° 2012-1419 of December 6, 2012, set up a National Land Reform Commission (Cnrf) with the following missions:

• conduct all studies and research relating to the occupation of State and national land;

• to analyze the legislative and regulatory texts in force and to make proposals for modification;

• identify the constraints and put in place an attractive legal and institutional framework, offering guarantees to investors and ensuring security and social peace, with a view to rational management of the State and national domains;

• to propose lasting solutions to land conflicts resulting from the occupation of the aforementioned areas;

• to propose implementation measures for the application of Law No. 2011-07 of March 30, 2011 on the land ownership regime (transforming occupancy permits and authorizations into land titles);

• and, more generally, to carry out all missions entrusted to it by the President of the Republic.

The Cnrf submitted on April 20, 2017, during a special session, its final report to the Head of State. The action taken by the authorities on this report is still awaited. However, the resolution of the crisis of land governance could begin with the implementation of the proposals of this Cnrf which would be deemed relevant and achievable.

3.2 Inventing new partnership formulas

The second line of research for solutions to land disputes could concern the search for partnership formulas beneficial to all, between populations and local authorities, on the one hand, and investors, on the other, with the State playing a facilitator role.

For this, two formulas seem interesting to me to explore.

• Formula 1

– The land is registered by the State and ceded to the local authority. The purpose of the transfer will be the provision of these lands for the realization of a project.

– The local authority rents the land ceded to the investor for at least a period allowing the return on investment.

– The proceeds of the rental will be intended exclusively for the construction of basic socio-economic infrastructure and the promotion of income-generating activities for the populations. The deliberation authorizing the signing of the rental contract will state this expressly.

– The rental contract must provide for a technology transfer mechanism for the benefit of small producers.

– At the end of the project, fixed investments, such as land, remain the property of the local authority

• Formula II

– The land is registered by the State and ceded to the local authority. The purpose of the sale will be to use the land as a contribution to the capital of the company set up by the investor.

– The local authority is thus a shareholder of the company and participates in its governing bodies.

– The dividends collected will be intended exclusively for the construction of basic socio-economic infrastructure and the promotion of income-generating activities for the populations. The deliberation authorizing the acquisition of a stake in the capital will state this expressly.

– When the company is liquidated, the land will be given priority to the local authority.

Formulas of this nature would contribute to reassuring both investors and populations and would contribute to bridging the chasm that we mentioned above.

3.3 Return to orthodoxy in the implementation of land legislation

While waiting for the hoped-for reforms to see the light of day, the authorities should ensure a return to orthodoxy in the application of land legislation. The impression that emerges, in view of the many grievances formulated, is that the actors of land governance have settled illegally. The criteria for allocating land in the national domain, in particular that of belonging to the community, are violated every day and the authorities in charge of control close their eyes by approving the deliberations allocating land to people outside the territorial community .

Concerning this precise question, Mr. Jean Colin, then Minister of the Interior, by circular N° 4593/M.INT/DAGAT of August 21, 1987, specified the following: "As regards the allocation of land to persons not members of the rural community, the rural council, in the current state of the regulations, is not competent to make such assignments. It is advisable in such cases, especially when the application for allocation concerns large areas, to apply the registration procedure provided for by articles 30 to 39 of decree 64-573 of July 30, 1964. The rural council does not is seized in this case only for opinion…”.

The regularization of land sales in the national domain, which we have called "laundering of land speculation", is a common practice that no longer disturbs anyone. The responsibility of the deliberative bodies, which take the decisions and of the representative of the State who approves the said decisions, is strongly challenged. Technicians who are often consulted for advice also have their responsibilities to assume. But, the responsibility of the technicians cannot exempt the decision-makers from theirs.

To facilitate better application of current land legislation, all the texts impacted by law 2013-10 of December 28, 2013, on the General Code of Local Authorities, must be updated, in particular decree 72-1288 of October 27, 1972 relating to the conditions for the allocation and decommissioning of lands in the national domain included in rural communities.

In conclusion, the in-depth reform of our land legislation is essential. The modalities or methods of this reform must be developed with all the seriousness required given the complexity of the matter and the issues involved. The process should be inclusive. The terms of the reform will need to be understood and accepted by all stakeholders. The interest of Senegal and its people, especially future generations, should be the ultimate standard, while taking into account the interests of the various partners involved. The land capital of the country is the most precious asset we have, we must safeguard it.

"We don't inherit the earth from our parents, we borrow it from our children."