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CT: This new law, the "Loi sur le Foncier Agricole" (LFA), was passed by parliament a few months ago. What benefits will it bring?

MD: The LFA will take us five significant steps towards securing the land rights of rural communities.

First, it redefines what is "state-owned land". Before this law was introduced, under the Code Domaniale et Foncier, all untitled land belonged to the state. That covered not only lands considered empty, or land without an owner, but also unregistered land governed by customary law. Now, those lands which have not been titled but over which there are recognised customary rights have been taken out of the state domain.

The new law has resolved what was a confusing situation: state land now only includes land that really does belong to the state – either land titled in the state's name, or where there is no owner and no one claims any rights to the land.

Now, customary unregistered land held under customary law is no longer recognised as belonging to the state.

Second, and leading on from the first point, rural communities can now own their traditional land and exercise rights over this land. Rural communities include both villages and herding groups. In farming areas, the village is the basic unit, in herding societies it is the fraction, while in urban areas we usually refer to the neighbourhood or quartier. A village is considered a 'community', even though there may be separate social and ethnic groups within the village.

It's very good news that rural communities can now have rights over the land on which they depend. In reinforcing these rights, the new law underlines the need to secure 'vital space' (espace vital) for rural communities. This includes common spaces in and around the settlement, pasture and woodland areas, and also the reserves of land needed for village expansion.

Third, the LFA provides the platform for setting up Village Land Tenure Commissions. These are local structures given the task of managing the lands and natural resources around the community, confirming who has rights to which areas, and resolving conflicts.

Fourth, we can see how this new law will change the way land is occupied and land rights are granted. For example, if for the last 20 years you have been occupying a plot of land without contest, you've not had to pay rent, nor protect yourself against violence, and you should be able to acquire rights over the land. This measure aims to protect more vulnerable groups, in particular incoming settlers who should be able to acquire rights through long-term use and occupation.

Fifth, there is a measure in place designed specifically to support women, whereby they are allocated at least 15 per cent of land developed by the state.

So, the LFA brings real advances, but much will depend on how the law is applied.

CT: Let's take the case of a village that has lands that have been in fallow for the last 30 years. Can the villagers claim these lands as theirs?

MD: If it's been 30 years since they were cultivated, customary rights still apply. As soon as you clear land, this establishes some form of right. But for land that has never been cleared, cultivated or used a villager can't claim this land to be theirs. We need to move towards an arrangement by which a wide range of rights are recognised, some based on historic claims, others on more recent occupation and use.

CT: Can a village get a certificate to affirm its customary rights?

MD: This can be done through enabling villages to register their lands. But as soon as you talk about titles and land registration, you leave customary rights behind and enter the world of modern law.

We need to start the vast process for registering and giving titles to village lands – the details for how this works will be in the decrees which are still to be drafted and agreed. Villages will register lands that belong to them, as collective property – it wouldn't be on a family-by-family basis, but rather held at village level. That's how I envision this working in practice.

CT: When we last discussed the law over customary land, you said there is often an issue about whether a village or herders' camp is seen as having a legal existence. Can you tell me more about this?

MD: Yes, that's true but it's mainly dogmatic lawyers who argue about this, saying "how can a village register its land, it is not a legal entity!". But let's remember, this is just a problem created by lawyers who do not recognise a village as having a legal existence.

Villages exist, they are real, they have a tangible presence. It's for the state to decide whether villages should be able to claim rights over land – not lawyers. There were a ridiculous number of amendments put forward in parliament by people who had once trained as lawyers. These would have taken us all back several decades had they been adopted.

The government may well regret losing its power over an increasingly valuable asset.

The LFA has the strength of being short, clear, and ambitious. The shorter the text, the less room there is for confusion to creep in. But we must recognise that the law was passed in part because of pressure from donors such as the World Bank, who made it a condition for the government to receive further financial support.

The price of land is increasing very rapidly. The value of my plot near Bamako has grown 10 times over the last five years, and the cost of titling and of registering transactions has risen in line with this. The government may well regret losing its power over an increasingly valuable asset.

It's important that everyone knows what the law says, so it must be translated into Mali's different languages. Civil society has been doing a great job in getting the voice of ordinary people into the national debate. It now needs to get the word back to the grassroots so everyone knows how to claim their rights.

CT: Thank you. I will be following with interest how the LFA takes effect. Good luck with your next steps!

 

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This blog was first published by the International Institute for Environment and Development, where Camilla is a senior fellow in the climate change research group.