{"id":517,"date":"2024-10-18T19:16:12","date_gmt":"2024-10-18T19:16:12","guid":{"rendered":"https:\/\/ags-dici.com\/?p=517"},"modified":"2024-10-25T06:37:12","modified_gmt":"2024-10-25T06:37:12","slug":"access-to-land-in-ivory-coast-diversity-and-variability-of-pluralisms-by-prof-aline-aka-lamarche-maitre-de-conferences-agregee-des-universites","status":"publish","type":"post","link":"http:\/\/ags-dici.com\/fr\/access-to-land-in-ivory-coast-diversity-and-variability-of-pluralisms-by-prof-aline-aka-lamarche-maitre-de-conferences-agregee-des-universites\/","title":{"rendered":"Acc\u00e8s \u00e0 la terre en C\u00f4te d'Ivoire : diversit\u00e9 et variabilit\u00e9 des pluralismes par Pr Aline Aka Lamarche, Ma\u00eetre de conf\u00e9rences, Agr\u00e9g\u00e9e des Universit\u00e9s"},"content":{"rendered":"\t\t
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Introduction<\/a><\/h1>\n
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1<\/span>In Ivory Coast, as in many French-speaking countries of West Africa, social tensions are often related to a crisis of the rule of law. These socio-legal conflicts are given different names according to their subject matter, or the time and place of their formation\u00a0: law crises, the weakness of the State apparatus, the unsuitability and failure of institutions, etc. Yet in most cases, these conflicts come from a common phenomenon\u00a0: legal pluralism<\/span>1<\/a>, or rather legal overlap.<\/span><\/p>\n<\/div>\n

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2<\/span>Legal pluralism cannot be defined without understanding the nature of the legal rule. According to the\u00a0Lexique Juridique<\/em>, it is \u201ca general, abstract and bending rule within social relations, which is sanctioned by the public authority\u201d2<\/a>. A typical legal rule is one that is emitted by state institutions, either directly (primary and secondary legislation etc.) or by delegation (intra legem<\/em>\u00a0customs,\u00a0secundum legem<\/em>, internal regulations, regional and international directives etc.). Indeed, because of its sovereign power, the State would not admit legal rules that are independent of its own territory. The State will therefore try to either control or remove them. However, the latter is more difficult to implement and, in most cases, legal pluralism will remain in a more or less limited form.\u00a0Legal pluralism is usually divided into two forms\u00a0: weak pluralism and strong pluralism.\u00a0<\/span>Weak pluralism deals with\u00a0intra<\/em>\u00a0or\u00a0secundum legem<\/em>\u00a0non-institutional norms,\u00a0i.e<\/em>. recognised by or in interpretation of the law. Wherever they come from, these norms are all formally recognised by the main legal system, which is in principle the State law. Conversely, strong legal pluralism leads to the implementation of non-institutional customs and norms,\u00a0praeter<\/em>\u00a0or\u00a0contra legem<\/em>, meaning in the silence of the law or against it. However, in order to analyse the Ivorian situation, this binary opposition must be overcome.<\/p>\n<\/div>\n

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3<\/span>Indeed, in Ivory Coast, several types of linkages between rules seem to coexist. If institutional law makes it possible to regulate the linkages, it is usually unable to control it. The coexistence of different sources of norms (mainly local custom) and their implementation by the locals calls into question the omnipotence of the law. This can be illustrated through an analysis of land management3<\/a>\u00a0in both rural and urban areas4<\/a>.<\/p>\n<\/div>\n

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4<\/span>Land is very important issue in a country like Ivory Coast because the macroeconomic weight of agriculture5<\/a>. On a microeconomic level, land represents not only access to financial resources, but also access to food and housing, three fundamental elements for human survival.<\/p>\n<\/div>\n

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5<\/span>Finally, from a social perspective, land is considered as \u201cthe land of the ancestors\u201d. In a society firmly entrenched in traditions the legitimacy of this identity criterion seems far stronger than that of a simple nationality \u201cpaper\u201d<\/span>6<\/a>.\u00a0<\/span>The legitimacy of belonging to a native community is built on parentage, as opposed to the recent invention of a national legitimacy built on a virtual national tie.<\/p>\n<\/div>\n

6<\/span>Because of high land pressure, land management raises social, economic and political conflicts. While successive governments encouraged agricultural settlement for economic development, customary landowners viewed an attempt to steal their traditional heritage and violate their ancestral rights.<\/p>\n

7<\/span>The struggle between executive, legislative and judicial branches, and customary owners has led to a heterogeneous mechanism. The rejection of the principle of \u201ccustomary ownership\u201d is defeated by an administrative\u00a0laissez-faire<\/em>\u00a0and an accommodating judicial interpretation. Without updating legal texts, the State has left to locals, in practice, all latitude to \u201ccope\u201d with this heterogeneity. This \u201cself-help\u201d system allows potential buyers to directly contact customary owners, who are of course themselves free to supply the land market.<\/p>\n

8<\/span>However, over the years, the issue of land has become the object of many violent conflicts not only between individuals but also between communities. The State has therefore given up the wait-and-see attitude it had adopted since the country\u2019s independence (in 1960). In 1998, the State decided to stop removing or reducing customary rights and chose to adopt a pragmatic attitude by reorganising legal pluralism within a statute that includes customary norms.<\/p>\n

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9<\/span>Nevertheless, however brave that decision might be, it only deals with one aspect of land management\u00a0: rural land. Indeed, Statute n\u00b0\u00a098-750 of 23 December 1998<\/span>7<\/a>\u00a0is not applicable to urban land.<\/span><\/p>\n<\/div>\n

10<\/span>As for urban land, the legislator does not seem keen to negotiate with local customs. Or at least, they are not close to recognising it in an official statute. Legal pluralism therefore remains de facto pluralism, because customary land rights in urban areas have remained trapped in a legal gridlock. Though officially inaccessible, these rights actually govern the majority of the land market in urban areas and are the object of a specific collaboration between owners of customary rights and the administration.<\/p>\n

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11<\/span>In both urban land and rural land practices, normative regime do not only coexist but are complementary. Even if this complementarity seems now to be inescapable, it threatens the security of land transactions. In the context of weak economic control8<\/a>\u00a0and an unstable socio-political situation, legal pluralism in land transactions is one more potential factor of social disruption. Reflecting upon the diversity and variability of legal pluralism is therefore a key issue in the domain of Ivorian land management.<\/p>\n<\/div>\n

12<\/span>The analysis of land transactions shows that legal pluralism has been treated unequally between urban and rural areas and between regulation and practice. The following section will tackle this diversity of legal pluralism through studying the various ways of access to land (I) and land conflicts (II).<\/p>\n

I. The plural modes of land access<\/span><\/a><\/h1>\n

13<\/span>In land law, State performs legal pluralism differently in the case of rural areas which are governed by legal regulation (A), and urban areas which are ignored by public authorities.\u00a0<\/span>(B).<\/p>\n

A. Legal pluralism in access to rural land<\/span><\/a><\/h2>\n

The village of Djrogobit\u00e9<\/p>\n

Usually, we grow trees for rubber and palm oil.\u00a0<\/span>We also sell land because a lot of people want the fields in order to build houses or grow crops.<\/p>\n

The procedure is simple\u00a0: it is a sale between a client and a seller, without any help of a notary because the legal procedure is too expensive for the landowner who is selling his property.\u00a0<\/span>So we close the deal and the client takes care of the legal procedure. Sometimes, buyers request the kind of notification that a notary produces. In such a case, we go to a notary. But the buyer is the one who pays.<\/p>\n

We would rather not register the land by ourselves because the procedure is too long and costly. We deliver a village certificate to the buyer. With this certificate, the buyer take steps to obtain the legal papers.<\/p>\n

On the question of implementing either the law or traditional customs, the answer is still pending. The government should have taken decisions on this matter after the country became independent. Right now, we are almost running out of land, especially since the highway of the third bridge is taking over our fields.<\/p>\n

Selling the same piece of land to several people used to be quite common around here, under the former village chief in particular. He sold altogether 180 lots to several people without any written document. These are issues that we, the new team, deal with on a daily basis.<\/p>\n

The village of Andokoua<\/p>\n

We have owned the land of our parents for ages.<\/p>\n

We used to grow crops on it. But today, due to economic development, we sell our land to build houses.<\/p>\n

In order to do that, we use an informal procedure. This means that when someone has chosen his lot and offers to buy it, the landowner turns to me. I deliver to the buyer a village certificate, and then he has to go to the Ministry for the remaining documents.<\/p>\n

Personally, I am informed of the legal procedure, but this was not the case of my parents’ generation, who was illiterate. So they were not able to understand the benefits of registering their land. However we are aware of the heavy bureaucratic burden and the cost of the proceedings. We can hardly go through the whole procedure. So the buyer pays for the identification and registration of the sale.<\/p>\n

We would rather use the customary procedure, because once the plot of land has been given to the buyer, the chieftaincy has nothing to do with it any more. If we had to carry out all these proceedings (identification and registration), the final cost of a plot of land would be too high.<\/p>\n

About multiple sales of the same plot of land, yes I know several cases and this is a real issue for us.<\/p>\n

14<\/span>Ivorian land law has undergone different types of pluralism.\u00a0<\/span>The colonial era established the basis for a pluralism referred to as \u201cstrong\u201d, because of the lack of accommodation between various forms of normativity (1). The reform initiated by the Act of 1998 was designed to favour such an accommodation. However, its implementation suffers from recent conflicts (2).<\/p>\n

1. A \u201cstrong\u201d pluralism originating from colonial times<\/span><\/a><\/h3>\n
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