1 Generalised Informality, Institutional Weaknesses and Semi-formal Arrangements

Around 2000, land tenure informality (or semi-formality) was largely dominant. Across the entire country only 1,980 titles were issued between 1906 and 1967 (Comby, Reference Comby1998b, pp. 11–12). Demands for land titles, mostly from urban well-off citizens, have risen since the 1990s, along with economic liberalisation and democratic transition. However, in 2004 there were only 14,606 land titles (MUHRFLEC, 2009) for a population of 6,769,914 inhabitants in 2002 (Zossoungbbo, Reference Zossoungbbo2016). Titles covered less than 20,000 ha or 0.17 per cent of the national territory. They concerned fewer than 15,000 households (1.23 per cent of the total number; République du Bénin, 2004). In 2007, only 5 per cent of urban residents and 0.8 per cent of rural residents had land titles (INSAE, 2009, p. 166), with high inequalities by wealth level: 4.4 per cent of the ‘richest’ had a land title, compared to 1.1 per cent of the ‘poorest’ (INSAE, 2009, p. 167). While the demand for titles increases, the pace is slow: ‘the proportion of parcels or land with a land title rose from 2.1% in 2006 to 3.4% in 2010 and 3.0% in 2011’ (INSAE, 2012, p. 53).

The responsibility for the management of both the state domain and private land titles is entrusted to the Direction des Domaines, de l’Enregistrement et du Timbre (DDET, the Directorate of Land Tenure, Registration and Seals), within the Ministry of Finance. DDET is a highly centralised body: it has only two offices, in Cotonou and Porto Novo, for the full country. Under-equipped, the land administration delivers few titles. Many files are incomplete or outdated. A survey done for a World Bank Project (Comby, Reference Comby1998b) states that many old titles are practically unreadable, due to poor storage conditions, and that some are even destroyed or missing. In the absence of a cadastral plan, the existence of a land title can only be known through a survey among neighbours. The plot maps drawn up by the surveyors are not connected to a general system of topographical markers, and the location of some titled plots is inaccurate. A new title can thus be issued on a plot of land that has already been titled in whole or in part (see Comby, Reference Comby1998b and Lavigne Delville, Reference Lavigne Delville, Bourguignon, Houssa, Platteau and Reding2019 for details).

The titling procedure is supposed to guarantee the reliability of the information. However, the number of steps in that procedure increases its costs and duration. This also increases the risk of the file becoming bogged down, and therefore the opportunities for personalised and clientelist, if not corruptive, processing of the files. Contradictory demarcation on the plot itself is supposed to ensure the legitimacy of the claimed rights. However, demarcation notices are to be published in the State Gazette, and posted in the Court of First Instance and in the subprefecture or town hall. They are rarely posted on the plot of land itself. Information on neighbours and possible local rights holders is fragmentary or non-existent. Applicants can thus obtain a title even with incomplete or sometimes illegal files and/or without the customary holders of the land in question being informed. The impossibility of contesting a title, which is supposed to protect the owner, serves in practice to ratify errors, fraud, and spoliation.

Applicants for titles are essentially wealthy urban actors, who are familiar with land administration and who want to secure their rights on the plots they have purchased, mainly in peri-urban areas. However, many executives – and even lawyers – acknowledge that they do not go through with the procedure: they start it in order to have a surveyor demarcate the plot on the field to discourage possible claims. Then they stop. The state itself rarely carries out registration procedures on its own land and the consistency of the state’s domain is unclear. The text defining the price for buying state land has not been updated since the 1960s, allowing actors familiar with the procedures to buy at low prices portions of the private domain of the state, which has been largely discounted over the years (Lassissi, Reference Lassissi2006).

The revolutionary regime (1974–1990) did not bring significant changes. It did not nationalise the land and forbid land sales. The 1977 Basic Law recognised and protected private property. This period saw the creation of numerous state farms on land expropriated from farmers, and the allocation of ‘uncultivated’ land to state companies and administrative services, with redistribution to clients and political allies (Le Meur, Reference Le Meur1995). The promotion of palm groves led to the creation of cooperatives where state agents could gain land. Until today those cooperatives remain sites of conflict between members of cooperatives and former customary owners. Furthermore, the official ban on owning more than one urban plot of land has multiplied bypass strategies, at the risk of subsequent conflicts during succession when some plots were put into the name of children (Andreetta, Reference Andreetta2019, p. 118).

Sitting beside the land law, or reinterpreting it, various procedures, most of them dating from the colonial period, have gradually constituted a ‘semi-formal system’ (André, Reference André, Lavigne Delville and Mathieu1999; Mathieu, Reference Mathieu and de Villers1996) of land regulation; that is, a set of procedures and documents not explicitly integrated into the legal framework but nevertheless implemented in a relatively stable way, by official authorities. This is the case for customary/unregistered land. For example, local authorities (formerly the district heads, now the mayors) issue administrative certificates – normally after a field survey but not always – to attest the ownership of a plot of untitled land. They also validate sales contracts on untitled land by signing and stamping them, with reference to the colonial 1906 decree on agreements between indigenous people. Local authorities also widely distribute housing permits, including outside land registered in the name of the state, which is illegal (Le Meur, Reference Le Meur2008).

In other countries, transactions on unregistered plots can be formalised through written contracts, handwritten or typed, which are officialised with the signature of an administrative or communal authority. This is much more institutionalised in Benin, despite some variations: municipalities print and sell specific forms with the commune stamp. Most land sales are officialised this way, against payment of a tax. However, this institutionalisation does not prevent all conflicts over sales, for several reasons. Field surveys are not always done before issuing administrative certificates. When signing a land sale contract, the mayor has no means to ensure that the seller is really the owner and has the right to sell. A ‘certificate of non-litigation’ (attestation de non litige) is requested from the village chief, but is not enough as the chief has no obligation to check the property rights on the plot and to alert in case of risk. Moreover, while numerous sales concern family land, the form has room only for an individual seller, and there is no obligation to have formal approval of the sale by the family rights holder before endorsing a sale. Archives are not properly managed. Communes have multiple responsibilities in terms of housing and planning, without having the tools and staff that would be necessary to carry on these responsibilities. Commune leaders are often engaged in land business, due to its political and financial issues.

Outside buyers cannot rely on their knowledge networks to check whether the person claiming to sell a plot of land is really the owner and whether the plot is a family property or not, and are not on site after the purchase to protect the plot against fraudulent sales. They are thus are particularly vulnerable to conflict and insecurity. Palm plantations in the Ouémé Valley, and more generally all land purchased in peri-urban areas, are thus equipped with cement pillars, and panels indicating the name and telephone number of the owner, in the hope of avoiding having the plot taken over by others.Footnote ⁹

While lack of staff plays a role,Footnote ¹⁰ the weaknesses of untitled land management by communes come first from the fact that the state has never structured and supervised it. In practice, the land law only deals with titled land and the process of immatriculation. Untitled land (customary land, but also plots in housing estates having housing permits) is left to these commune-level semi-formal procedures. However, at the same time, the state recognises them: administrative certificates and endorsed land sales contracts are part of the necessary documents for requesting a land title. By acknowledging them, and even more so by leaving citizens’ needs in terms of securing unregistered land without a political and institutional response, the state endorses these practices.

As access to a title is in practice impossible for most citizens, these procedures are the only way by which most interested citizens – mainly urban or peri-urban – can obtain official documents attesting to their land rights. They can be seen as ‘palliative solutions’ that attempt to provide practical responses to the problems encountered, given the shortcomings of public services. As stated by Olivier de Sardan (Reference Olivier de Sardan2014), those behaviours are ‘unofficial’, ‘out of step with what the texts provide’, ‘at the limit of legality’ (and sometimes even illegal), but they provide informal solutions to bottlenecks in public services.

2 Land Markets, Conflicts, and Insecurity: A High Regional Diversity

In 2007, 40 per cent of plots of land in urban areas, and 10–13 per cent in rural areas, have been purchased (INSAE, 2009, p. 165). However, only 5 per cent of individuals have a land title in urban areas and 0.8 per cent in rural areas (INSAE, 2009, p. 106). In 2011, 6.6 per cent of plots had a housing permit and 44.4 per cent had a sale agreement from the town hall. In Cotonou, 72.0 per cent of individuals who own a plot of land have a sale agreement from the commune and 7.5 per cent a land title (INSAE, 2012, p. 53). The proportion of loan amounts secured by a land title is very low (1 per cent at most; Steward International, 2010, p. ix).

Legal uncertainty is widespread, due to an absence of legal documents or to poorly managed land information. However, this does not impede land transactions. Land markets are absent in most rural areas, but they are common in urban and peri-urban contexts, as well as in countryside in the south.Footnote ¹¹ Moreover, it does not always translate into real insecurity, or into a proven risk. Informality does not mean insecurity as long as land rights are not contested and legitimate authorities are able to solve conflicts. Insecurity and conflicts are concentrated in some areas, some configurations, and for the least powerful actors.

In the cities, a large part of the territory has been subdivided for housing, people’s rights on the plot they live on are quite stabilised by occupation, and the inhabitants frequently hold one or more documents: residence permits, sales agreements, and administrative certificates. Cases of conflicts or insecurity arise due to contradictory overlapping rights, or conflicts over inheritance or sales. Some houses in cities are marked ‘contentious, not to be sold’. Family rights holders may contest sales made without their consent, even a long time after the fact. Sellers’ heirs can even go to trial when they see that the value of land has dramatically increased and they can win in court. In some cases, buildings have to be destroyed because of a court decision, due to a conflict relating to a sale, but there are few reliable data on the number of such cases.

Conflicts frequently involve disputes over past sales, or inheritance disputes. Family houses are occupied by different family members and the eldest son often takes responsibility for them upon the father’s death, postponing the distribution among the heirs. He manages the income from the rented property for his benefit. The youngest, and especially women, are increasingly claiming their share of inheritance, based on the recent Family Code (2004), and are less hesitant to go to court, which has led to an increase in the number of such cases (Andreetta, Reference Andreetta2019).

In rural areas, land governance is largely by customary or neo-customaryFootnote ¹² norms and by ‘traditional’ authorities, whose power varies greatly from one area to another, with the intervention of state agents and the territorial administration or municipal elected officials in the event of conflicts. Depending on the region, population density and land-use patterns, land tenure relationships are more or less individualised. The contrast is striking between the southern regions (Mongbo, Reference Mongbo, Longbottom and Toulmin2002) – densely populated, highly individualised, where an inter-farmer land market for purchase and sale has existed for a long time – and the rest of the country, where such a market is non-existent or almost non-existent. Urban buyers, with financial resources that are disproportionate to those of rural families, are one of the major factors in the commodification of land, in – sometimes even remote – peri-urban areas, along roads and in pioneering areas, where land is still available. Sales contracts are sometimes based on a mutual agreement, but can also rely on corruption, manipulation, or even force (Kapgen, Reference Kapgen2012).

Investing in land is indeed one of the preferred strategies of urban elites and the middle classes. This rush on land fuels acute land speculation, which is felt far inland. All those who can afford it buy plots of land on the periphery or in remote suburban areas according to the available opportunities and their financial means. ‘Land mafias’ expand around large cities, which bring together landowners’ lineages and ‘canvassers’, surveyors, and municipal or state agents. Multiple sales of the same plot of land, and contestation of former sales by rights holders (shortly after a sale made without their knowledge, or years or even a generation later when they discover that the plot’s value has increased significantly) are frequent, causing insecurity for buyers. Nevertheless, these buyers rush to take advantage of all opportunities, hoping to secure at least part of the plots they buy.

Numerous actors highlight the high prevalence of land conflicts. However, solid figures are rare. Existing surveys are often ambiguous in their definitions of conflicts.Footnote ¹³ In 2007, a survey shows that the proportion of plots that have been the subject to a dispute is 1.4 per cent in urban areas and 1.1 per cent in rural areas, which is considered ‘a low proportion’ (INSAE, 2009, pp. 169–70), but the difference in figures between 2006 and 2007 is astonishing. The percentage of conflicts is highest in the urban and peri-urban departments of the south of the country (around 4 per cent) and very low elsewhere (less than 1 per cent). Numerous communes in rural areas recorded no land conflicts in 2007.

Contestation of property rights (inheritance, land sales, land grabbing) is the most frequent source of conflict (33.9 per cent; INSAE, 2012, p. 122).Footnote ¹⁴ Plots of land with a written document are less prone to conflict, but the title does not provide much more of a guarantee than other documents. Land conflicts affected 3.4 per cent of plots with no administrative documents, against 2.7 per cent for plots with a non-formal sales agreement, 2.4 per cent with a sales agreement established by municipal authorities, 2.3 per cent with a residence permit, and 2.0 per cent of plots with a land title (INSAE, 2012, p. 121). Having a document reduces the risk of conflicts, but a land title does not provide complete security.

These data show clearly that conflicts are more frequent in urban and peri-urban contexts. There is no direct link between informality and conflict, and a land title is not much more secure than a sales agreement issued by a commune. Most conflicts are solved outside courts and at a lower cost. Only 12 per cent of property rights disputes are settled by the courts (INSAE, 2012, p. 130). Most of them are solved at family level (26 per cent), at commune level (25 per cent), and at village or subcommune level (24 per cent).

3 Institutional Bottlenecks before Reforms: Vested Interests in Confusion

We can summarise the situation at the end of the 1990s as in Table 7.1, proposed by the research project.

Some forty years after independence, land governance is still based on the colonial duality between private titles for land and informal or semi-formal plots. Most of the country’s plots are governed following customary or semi-formal procedures at commune level. Instead of designing sound commune-level procedures to make them more reliable, and answer to the needs of the majority of citizens, government has allowed them to develop unchecked, leaving gaps for manipulation and power grabs. For Piermay (Reference Piermay1986, Reference Piermay, Frelin and Haubert1992), who studied urban land practices in central Africa, and Mathieu (Reference Mathieu and de Villers1996), who was interested in the rural situation in Sahelian Africa, the situation of informality and vagueness about the land rules does not result from chance. It is the product of a deliberate strategy of ‘managing confusion’ by political and administrative elites, who are well integrated into the political and administrative networks and able to take advantage of it.Footnote ¹⁵ The situation of Benin confirms this analysis. The obsolete nature of the texts, the vagueness of the rules, the institutional shortcomings, the complex procedures, the lack of resources for the administrations are greatly responsible for the current situation. These institutional deficiencies are partly the product of a lack of interest – and budgeting – on the part of the state. Constraints on human and financial resources in state administration bodies have been aggravated by structural adjustment.Footnote ¹⁶ However, their maintenance over time cannot be attributed solely to negligence and it is advantageous for certain parties. Informality in rural and peri-urban land allows urban dwellers to buy it at a cheap price; the lack of updating of the state property register and the obsolescence of the state land transfer scale clearly favour the grabbing of the state’s domain by actors who know the rules and have relations with land administration agents; land title registers are not maintained properly, which allows for manipulation.

Land subdivisions are a privileged place for land corruption (Aboudou et al., Reference Aboudou, Joecker and Nica2003; Kakai, Reference Kakai2014, pp. 16–18). Surveyors apply an exaggerated ‘reduction coefficient’ that allows them to illegally create new plots that they share with local elected officials. The heads of communal land services and elected officials are also involved in land speculation. The ministry for urbanism states that ‘some land canvassers maintain a land mafia which sometimes leads to the counterfeiting of Land acts with the complicity of the Land affairs services of the Mayor Office’ (MUHRFLEC, 2011b, p. 58). These deficiencies and the lack of resources open up many opportunities for negotiation, privatisation, and informal transactions, and even manipulation or corruption. As Bayart (Reference Bayart1993) explained thirty years ago, in Africa land and property ownership is the wealth par excellence and the main source of accumulation for national and local politicians, and state agents and the institutional shortcomings do not only result in losers.

1 The Emergence of the Debate on Land Security in the 1990s

In Benin, the first seminar on housing and land tenure security, in 1984, is regularly quoted as the starting point for further reflection. But it was only around 1990 that the spoliations linked to a collapsing revolutionary regime, the land grabbing by the elite on the private domain of the state, and the abuses by state agents against the population led to the state’s land monopoly being called into question (Gbaguidi, Reference Gbaguidi1997). The context was one of economic liberalisation and democratic transition. Land rights’ informality and tenure insecurity started to be raised as a problem, in both urban (Comby, Reference Comby1998b) and rural areas (Hounkpodoté, Reference Hounkpodoté, Toulmin, Lavigne Delville and Traoré2002). In both contexts, the issue was to favour wide access to legal recognition and to prevent land conflicts. Several reform projects were raised in different ministries.

2 In Urban Areas, Tool for Commune-Level Land Taxation and Unsuccessful Discussions on Legal Reform

In the early 1990s, the French cooperation set up local land taxation tools, called Registres Fonciers Urbains (RFUs – urban land registers), in Cotonou and Parakou (Charles-Dominé, Reference Charles-Dominé2012). An RFU consists in a map of land occupations – regardless of their legal status – built from field surveys, allowing the issue of tax notices. The RFU allows a significant increase in tax resources, but remains incompletely mobilised by the municipalities, both because elected officials are reluctant to increase the pressure to pay taxes, and because of weak institutional anchoring in the municipalities’ administrative system (Simonneau, Reference Simonneau2015). RFUs have then been disseminated to other municipalities, by various donors, in various forms and with limited success (Simonneau, Reference Simonneau2015). While RFUs are primarily a fiscal tool, their designers thought they could help to register ownership: the presence on a plot for a sufficient period, as evidenced by the regular payment of property tax, could be considered after a given number of years as a proof of ownership, avoiding the complexity of immatriculation.

As part of the Urban Rehabilitation and Management Project (Projet de Gestion et de Réhabilitation Urbaine [PGRU], with World Bank financing), a series of studies conducted in the 1990s laid the groundwork for possible land reform. Comby (Reference Comby1998b) identified four possible strategies. The first was ‘an improvement of practices and reorganization of administrative means in compliance with existing law’. The second was ‘a policy of occasional improvements leading to a significant improvement’. The third built on the development of group registrations. The last strategy was based on deep modification of the conception of ownership and land rights legalisation: ‘in a more radical break with current legal and administrative practices, making ownership a matter to be settled between private persons. The State and its administrations no longer deal with the recognition and allocation of property. The peaceful owner of a piece of land is presumed to be the owner, with the burden of proof to any interested person to the contrary by taking legal action’ (Comby (Reference Comby1998b, p. 17). This would mean abandoning the colonial conception of state-guaranteed land ownership in favour of a contractual approach, like in the French Civil Code.

‘For many people’, according to Comby (Reference Comby1998b, p. 17), ‘all the current difficulties stem simply from a lack of respect for existing texts. They think that it is not the law that needs to be changed, but that it is the practices that must be brought into conformity with the law, all the evil coming from the fact that the law was no longer respected’. However, this expert supported the ‘bottom-up ownership’ perspective and thus an exit from the standard registration model. He explained that the scenario for implementing existing law was doubly unworkable: first, it would imply being able to prohibit sales of unregistered land, and then the cost and pace of issuing land titles are incompatible with a desire to address the problem on a significant scale.

Prepared by Beninese experts, the collection of legal texts compiled for the PGRU (SERHAU, 1999) timidly opens the question of alternatives to land titles, or in any case significant changes in procedures: ‘It may be necessary to study at the State level how to make it accessible to as many people as possible and if it must always be maintained as the mother of evidence of land ownership […]. There is a need to simplify the procedure along the lines of the procedure for establishing customary land rights […] and to restore the contract as an essential role in the acquisition of property’ (SERHAU, 1999, p. 350, emphasis added).

In practice, however, it is the first scenario that the Beninese authorities adopted, with the establishment in 2001 of a ‘Commission for the transformation of housing permits into land titles’, which was supposed to accelerate the issuance of land titles. The ‘Land and residential security’ programme driven by the Ministry for Urban Planning planned to issue 45,000 land titles between 2005 and 2007 (Le Meur, Reference Le Meur2008, p. 10). Blocked by complex procedures and by the entry of land professionals raising bids on procedures, this has been quite ineffective (see later). At the same time, the Ministry of Urban Planning launched a reflection on a possible reform of land and urban planning.

3 In Rural Areas, the PFRs and the Draft Rural Land Law: The Search for an Alternative to Land Title

In rural areas, two successive development projects, under the supervision of the Ministry of Agriculture and with French and German funding,Footnote ¹⁸ have integrated the issue of land tenure security, first as a tool for encouraging farmers to invest in anti-erosion techniques. The project began in 1992 and experimented in different regions in the country with the Plan Foncier Rural (PFR) approach, imported from Côte d’Ivoire, where it had been invented a few years earlier (Chauveau et al., Reference Chauveau, Bosc, Pescay and Lavigne Delville1998; Gastaldi, Reference Gastaldi and Lavigne Delville1998).

In the PFR approach, land rights are identified through cross-checked field surveys, conducted on a plot-by-plot basis. Each plot holder explains the rights he or she has and how – and from whom – he or she has obtained them. The boundaries of the plots are measured with a decametre and then drawn on an aerial photo.Footnote ¹⁹ Two types of situations are considered: those of individual owners (‘presumed owners’ in legal language) and those of family communities, represented by their ‘manager’, in other words the representative of the group of rights holders, who has authority to make decisions on the plot in question. The plot holder and the holders of the neighbouring plots sign the survey report. After a publicity phase, which is supposed to allow everyone to verify or correct the collected information, the final plot map and rights-holders’ register are given to the village committee, which is supposed to register future changes in rights (inheritances, sales, leases, etc.) and to keep the land documentation up to date. PFR is thus a kind of village land cadastre, without legal value. However, in the idea of its promoters, the demonstration that it is possible to map ‘informal’ customary rights, which are often considered difficult to understand from the outside, should contribute to promoting a legal reform. This reform could create a new and more appropriate legal status for rural land and thus enable rural actors to obtain legal recognition of their rights.Footnote ²⁰ Some forty pilot PFRs have been carried out in two successive projects in different regions of the country, which allowed the methodology to be put to the test and to be improved. However, the idea of a coherent village territory constituted of juxtaposed farmers’ plots is a simplification. It does not really consider the diversity of customary land rights (CIRAD-TERA, 1998); pastoral rights, commons, and agricultural areas where land rights are not stabilised (Edja et al., Reference Edja, Le Meur and Lavigne Delville2003) are not taken into account.

Present from the outset, the legal reform was put on the agenda in 1998 when a second project was negotiated between the Ministry for Agriculture and donors. Working under the supervision of several ministries (agriculture, justice, economy), a group of Beninese experts (lawyers, anthropologists, economists) drafted a law that was a potential legal revolution: it renounces the presumption of state ownership of unregistered land and provides that every plot subject to ‘rights established or acquired according to custom and, more generally, local practices and standards’ (art. 7) is part of private land. The draft law institutionalises PFRs and gives them, as an outcome, a new legal document, the CFR (certificate foncier rural, rural land certificate). A CFR is a ‘document of recognition and confirmation of land rights established or acquired according to custom or local practices and norms’ (art. 111). It can be individual or collective, it is transferable, assignable, and usable as collateral for credit (arts. 9 and 112). ‘A presumption of acquired rights is attached to it as proof until proven otherwise, established before the judge’ (art. 111).

In line with the recent administrative reforms creating elected local governments (1999), the draft law sets up a local land management framework, anchored in the communes and integrating village-level bodies. Communes deliver land certificates for plots registered in the PFR and maintain land information. Villages benefit from PFRs at their request and can define their own rules for managing natural resources on their territories. All transfers of land rights must be formalised at the village level, and permanent transfers (sales, heritage) have to be recorded at commune level, so that new certificates can be issued.

This reform clearly relies on an ‘adaptation’ paradigm. It rests on a legal innovation, thought to be more fitted to rural areas and much cheaper. The objective is to expand PFRs and thus land certificates with a progressive approach, relying on villages’ demand. Meanwhile, the institutional framework at commune and village level has to be put in place everywhere, to allow for local registration of land transfers even without PFR. The land certificate can be transformed into a land title but, for its promoters, most farmers will stay with a land certificate, which answers to their needs and is supposed to become dominant. With that draft law, new land legal and management frameworks are proposed for rural areas, alongside the land title and the state land administration.

The paradox is that this ambitious reform is made of a policy tool, the PFR, and a law, without a policy statement stating its objectives. It benefits from a relative consensus in MAEP (the Ministry of Agriculture, Herding and Fishing, where some actors support agribusiness and land titling) and more generally among the actors involved in the rural zones and decentralisation policies. Nevertheless, it faces opposition from actors in the Ministry of Urban Planning: for them, specifically rural legislation makes no sense and raises insoluble problems at the boundaries between rural and peri-urban areas; CFR can only be an intermediate document, of much lower status than the land title, and is contradictory to the provisions of the Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA, Organisation for Harmonising Business Law in Africa), which provides (art. 119) that only the land title (or failing that, an ongoing application) is recognised as the basis for a mortgage.

Partly because no policy statement defines the vision, different conceptions of the reform coexist. For its promoters, it creates a long-term alternative to land titles, allowing rural dwellers to have access to legal recognition of their rights. Among them, some want to quickly generalise PFRs over the country, while others prefer a more progressive strategy for expansion, depending on means and needs, starting from areas where PFRs are most useful (Lavigne Delville, Reference Lavigne Delville, Colin, Le Meur and Léonard2009). For those who support classic land titling, PFR is only a temporary framework, and land certificates must quickly be transformed into titles. The diversity of policy options that PFR can serve helps to build adhesion around it.

Ready since 2002, the ‘law on rural land tenure’ was initially blocked by the MCA team. It was finally passed in 2007 with MCA support. In the meantime, an action plan for implementation had been designed, which proposed a progressive strategy under the aegis of an Agency for Rural Land Tenure Management, to be created to take charge of coordination, technical support to communes, and management of a multidonor fund.

4 In the Mid-2000s: The MCA-Benin and the Emergence of a Global Reform Project

In the mid-2000s two separate policies were thus ongoing (Figure 7.1): in urban areas, the Committee for Transforming Housing Permits, which was practically ineffective (see Section II.B.2), and in rural areas, the PFRs, a draft law on which was ready (see Section II.B.3). A new initiative emerged at that time, carried out by the MCA-Benin, with a view to harmonising land law at the national level. Following the 2004 Monterrey Conference on aid funding, the US government created the MCC to support economic development projects proposed by beneficiary countries, officially selected based on good governance criteria. Benin was among the first countries selected. Its government set up a series of workshops to identify the themes around which to build a proposal. Land issues emerged from discussions between the government and the MCC. The Compact was signed in 2006 and implementation took place between 2007 and 2011. The Compact’s ‘Access to Land’ project aimed at overcoming the divide between rural and urban and promoting a global land reform, making access to land title easier and cheaper (Figure 7.1). It had two components: at institutional level, a legal reform that aims to standardise land law, overcome legal dualism, and provide the country with updated legislation; at operational level, field projects were supposed to scale up previous initiatives, in both rural and urban areas. Positioned under the aegis of the Presidency of the Republic, the MCA was the central actor, and the centre for the design and preparation of the land reform. In 2007, shortly after the launch of the Compact, the new President of the Republic, Boni Yayi, officially placed responsibility for land reform under the aegis of the Ministry of Urban Planning. These two bodies have steered the reform.

Figure 7.1 Chronology of land reforms in Benin.

The MCA project has been clearly oriented towards the promotion of land titling. During its formulation, the fight has been fierce between the Ministry for Agriculture, defending the PFR and the draft Rural Land Law, and MCA and the Ministry of Urban Planning, claiming leadership of the global reform and wanting to use PFRs as a tool for issuing land titles. Having high-level political support and a strong budget, the MCA reform took the lead after 2006 and signature of the Compact.

Several initiatives towards land reform emerged in Benin in the 1990s–2000s, from several ministries and with the support of different donors (Figure 7.1). All of them tried to answer the issues of informality and insecurity in a context of economic liberalisation and democratic transitions. All relate to what Muller (Reference Muller1990) calls a global/sectoral adjustment: a situation where a given policy sector, built and organised in coherence with a former global policy paradigm, has to adapt to a change in this paradigm, because its vision, tools, and institutions are now outdated. These competing reform projects were all attempts to adjust the land policy and administration to the liberalisation of the economy and to the democratic turn. However, the answers were different, illustrating the contrast between replacement and adaptation paradigms.

In rural areas, titling is almost non-existent, individual ownership is not the rule and most land is held by family groups, and the value of land does not justify supporting the high costs of titling. Specialists in rural areas promoted adaptative strategies, based on a new land administration and new legal documents, to allow for cheaper, affordable access to legal recognition of individual or collective land rights. While the centrality of the land title has been timidly questioned in urban areas, and the shortcomings of classic strategies for developing access to law have been explained by World Bank experts, state bodies clearly chose to push to titling.

1 The Institutional Component: Updating the Land Law and Negotiating the Agencification of Land Administration

While the will to reform the land administration was clear, the institutional vision was not yet designed at the beginning. The MCA team recruited an American consulting firm specialising in the sale of technological solutions for the legal security of land transfers to manage the process. The relationship between the MCA and the firm has been stormy, due to conflicts of vision. The diagnosis made (on conflicts, land speculation, women’s access to land) did not take into account current economic and social science results or field studies (Edja, Reference Edja, Bierschenk, Le Meur and von Oppen1996, Reference Edja2001; Mongbo, Reference Mongbo, Longbottom and Toulmin2002; Le Meur, Reference Le Meur2006; Magnon, Reference Magnon2013). It was based on the standard but biased assumptions that customary laws were outdated, and that informality was the source of the problems. The diagnosis partly included the misdeeds of surveyors during housing developments, the monopolisation of the private domain of the state by the elites, and the absence of regulation and supervision of real estate agents. Nevertheless, the operational strategies then took little account of these problems, and seemed to consider that legal and organisational change would suffice to prevent them in the future.

State bodies and professionals involved in land management (surveyors, notaries) were involved in the ‘participatory’ process of policy formulation, civil society organisations, scholars, and other resource people being largely put aside. Debates between interest groups, state structures, and professional corporations were lively. While the initial principle had been to reform the DDET and push for creating local offices, DDET strongly resisted this to keep centralised control over titling. To overcome this blockage, the study on the institutional framework suggested in 2009 a more ambitious reform, with the creation of a National Agency for Land and Domain taking over a set of functions previously carried out by different technical departments spread over several ministries, and issuing and managing land titles, though local offices. Agencification is supposed to bring more professionalism, efficiency, and transparency in land administration.

The white paper (MUHRFLEC, 2011b) was adopted and translated into a policy document (MUHRFLEC, 2011a), itself adopted in June 2011. At the end of the contract with the consulting firm, only a first draft of the Code had been written. The process was then taken up directly by the MCA team, which enabled finalising a draft Code that was finally voted on in January 2013.

2 The Operational Component: Trying to Deliver Legal Documents at a Large Scale

Field operations were supposed to take place after the legal reform. In practice, both took place simultaneously, which led to institutional contradictions, in particular for PFRs. The progress and difficulties that MCA’s operations faced in the field highlight the practical and managerial issues of land rights registration, shedding light on issues that the reform’s implementation will also face.

3 After the End of the MCA Project (2012–2015): Uncertainties, Reconfiguration, and the Vote on the Code

At the end of the MCA project, the planned major reorganisation of land management had only been initiated. A geodetic station system had been set up. A preliminary draft Code had been drafted, but did not seem at that time to have strong political support and its adoption was uncertain. The delivery of titles and certificates fell far short of the targets. The rural land management system had been put in place in forty of the seventy-seven communes, but its future remained largely uncertain, and the whole system was in danger of rapidly collapsing due to a lack of institutional consolidation. The MCA team, which carried out all of these actions, had been dispersed. However, the reform process continued with the vote on the Land Code in early 2013, the redaction of the decrees in 2015, and the creation of ANDF in 2016.

4 The Gradual Implementation of the New Institutional Framework (2016–2018)

The years 2016–2018 saw the establishment and ramping-up of ANDF, the repositioning of the various actors, and the beginning of the actual implementation of the Code. The amount of work done during these years is impressive. The institutional landscape became clearer after the adoption of the decrees in January 2015 and the attribution of ANDF’s supervision to the Ministry of Finance. The state then took charge of the deployment of the institutional mechanism provided for by the reform, which took place in a coherent manner. The Ministry of Finance reorganised itself, dissolving DDET and integrating ANDF into its organisational chart. An action plan for implementing ANDF was defined in July 2015 (Gandonou, Reference Gandonou2015). The lawyer who led the reform at the MCA level was recruited as general director. While ANDF is supposed to have offices in every one of the seventy-seven communes, fourteen ANDF local offices (one per department, plus one for Abomey-Calavi and Ouidah) were officially opened in September 2016.

President Talon’s coming to power in 2016 gave a boost to the reform. His programme (Bénin révélé) provides for a faster and cheaper transformation of housing permits to land title, the creation, of a national cadastre and the operationalisation of ANDF. President Talon ordered taxes on land registration to be lowered to make access to title cheaper. The committee for the cadastre was created in November 2016.

In May 2017, the Parliament passed a law (no. 2017–15) amending and supplementing the 2013 Code. At the same time, a digitisation project for land documentation was launched from April 2017, implemented by a French consultancy firm, which collected all land information (titles, supporting documents such as sales agreements or administrative certificates, plot maps of PFRs and housing allotments) to digitise them and integrate them into a single geographic information system (GIS). The spatial calibration of land titles was a huge task, since the references used by surveyors were heterogeneous. Land subdivisions were relatively easily repositioned on satellite images, but for individual titles it could be more complex. The team almost succeeded in positioning existing maps and titles in the GIS, but the information on landowners was still indicative, as the data were sometimes fake (in cases where only the planned resettlement plan exists, and not the final one) or obsolete due to changes, inheritances, transfers, or even fragmentation since the time the maps were drawn up. The consulting firm also had to validate the demarcation plans for new titles before integrating them into the GIS, which led them to reject many plans and force surveyors to do their work again. Field experiments for the implementation of the land cadastre in areas without land information were launched in early 2019, as part of Dutch support.

At the end of 2018, the institutional framework and its tools and procedures were more or less in place, apart from the cadastre. 47000 titles had been digitalised. ANDF had just over 200 agents, many more than the former DDET. Land documentation had been transferred almost entirely to the BCDFs. ANDF began issuing new land titles in April 2018Footnote ²⁴ at a very slow pace (only 1,587 land titles were createdFootnote ²⁵). Applications for new land titles were being processed, with a view to meeting the tight deadlines imposed by the Code. Pending applications were processed gradually.

In October 2018, Benin national mayors’ organisation (Association Nationale des Communes du Bénin, ANCB), with the support of the Projet Foncier local (local land management project), funded by the Netherlands, organised a National Workshop on Land to assess the situation. It established a progress report on the reform five years after the vote on the Code and allowed a dialogue between commune heads, ANDF, and the projects (Boughedada and Lavigne Delville, Reference Boughedada and Lavigne Delville2021). A new support project for ANDF, the Land Administration Modernisation Project, was launched in December 2018, also funded by the Netherlands.

1 The Main Orientations of the Code

The 2013 Land and Domain Code is an ambitious text that aims at radically reforming the legal and institutional framework of land tenure in Benin. It includes 543 articles, organised into 10 titles and 31 chapters. It explicitly repeals the 1965 Ownership Act, the 1960 Housing Permits Act, the 2007 Rural Land Tenure Act, and also, implicitly, the 1955 and 1956 decrees.

The Code updates the 1965–25 law on ownership, adding specific provisions from the 2007 Rural Land Law, and reorganising land administration around ANDF. Focusing on private ownership, the Code intends to break with legal dualism and standardise the law. It recognises a single title of ownership, the Land Ownership Certificate (Certificat de Propriété Foncière). This new name for what is fundamentally the classic land title is the result of a compromise between land title and CFR, and an answer to criticisms on the intangible, unassailable nature of land title, which allows dispossession and enables impunity even in the event of fraud or error. The Land Ownership Certificate is still intangible, but it temporally violates this principle by assuming that it can be contested in the event of fraud or error within one year after the discovery of the fraud (art. 146). However, any action lapses after five years from the date of establishment of the Land Ownership Certificate.

The Code follows the logic of the ‘confirmation of land rights’, with two ways of obtaining a Land Ownership Certificate. One is on an individual basis and follows the former standard procedure of registration, while improving local information. This process must respect a maximum duration of 120 days (art. 139). The other is collective, via the PFRs or collective confirmation processes (art. 142 ss), at the request of local authorities or a group of urban owners organised in a land interest association. The Code creates an Attestation de Détention Coutumière (ADC, Attestation of Customary Possession) for the rural environment, a new intermediate document issued by the local land management offices. In individual applications, this attestation, relocation certificates (obtained after land subdivisions for housing), and tax notices for the last three years can be used as ‘presumption of ownership’ documents to initiate the confirmation request. The recognition of tax notices as implying a ‘presumption of ownership’ is an important step towards the recognition of peaceful occupation as a source of ownership. However, sales agreements, housing permits, administrative certificates, and CFRs – that were until now the most accessible documents and the most used by citizens – are no longer recognised as documents allowing a person to apply for a Land Ownership Certificate.

As in the 1965 law on land ownership, the confirmation of rights is not mandatory. This maintains a dualism between plots having a Land Ownership Certificate and other plots. A new ‘certificate of membership’ (mentioned but unspecified in the Code) may be issued by the Land Agency to allow the sale of a plot whose registration is ongoing, and to allow for a credit. As in the 1965 law, only sales create an obligation to obtain a certificate, under penalty of nullity. It remains to be seen whether ANDF will have the means to impose this rule, knowing that it imposes a deadline of several months, which is incompatible with the urgency of financial needs that frequently trigger sales. Any sale concerning a titled plot of land must be drawn up in the form of a notarial deed or, failing that, under private contract and deposited in the minutes of a notary (art. 18), before being copied and added to the Land Ownership Certificate by the local land office. The transition from ‘informality’ to land title is thus progressive, with a long period of coexistence between informal and titled plots.

In urban areas, possession of a Land Ownership Certificate is the norm. Housing permits have been abolished. The idea of a quasi-automatic transformation of existing housing permits into land ownership has therefore been abandoned. The Code reaffirms that housing permits can only be issued on state titled land. The future of the hundreds of thousands of housing permits issued by communes is thus unclear. In rural areas, the Code integrates PFRs and the institutional framework created by the 2007 law, with a land management committee at commune level with few prerogatives, having branches in every village. Every land transfer contract (final or temporary) relating to rural land must be registered at the village committee. PFRs now lead to Land Ownership Certificates issued by ANDF local offices. It is not clear whether obtaining a certificate for a plot registered in a PFR is automatic or upon request, but CFRs already issued are ‘upon simple presentation by the holder, transformed into a Land Ownership Certificate’ (art. 520). The Code therefore introduces some specificities for untitled rural land, which is inconsistent with its ambition to standardise the law and reproduces the problem of delimiting rural and urban land, which was criticised in the 2007 law.

The Code establishes a cadastre (Chapter 4, art. 452–481) with a triple purpose: technical (representing all the plots of land in the country), fiscal, and also legal, for land covered by a Land Ownership Certificate. The Code also defines the rules for the management of the public and private domains of the state and of local governments. ANDF is in charge of the state domain, and is supposed to hold the general picture of the state’s ownership, which the former DDET proved unable to do.

The Code incorporates an innovative principle of ‘extinctive’ prescription for customary land, in order to avoid former owners or relatives of former owners challenging the sale of plots of land. However, no prescription is possible for land titles, even if one existed in the 1965 law for the benefit of the state (art. 82). It also creates a right of pre-emption by the state, exercised by ANDF, in order to reconstitute a private domain of the state. However, the purposes and modalities of pre-emption are not defined either in the law or in a decree. The Code devotes a full section to the question of litigation and defines the methods of contestation and arbitration. It also introduces a criminal land law, which has not existed until now: to discourage fraud and errors, it provides for severe penalties, both for individuals and for officials (mayors, land administration officers; art. 487–515). The amount of penalties provided for land administration managers in the 1965 law had never been revised and were not dissuasive. The heavy threats may have a real deterrent effect on local elected officials in particular. New research will be necessary for assessing whether they materialise and make it possible to end the wide impunity that has so far been the rule.

2 Criticisms of the Code and the 2017 Review

The controversies during the negotiation of the Code did not stop after the vote. The preparation of the decrees raised various conceptual and practical problems. The need for a partial revision was quickly recognised and it occurred in 2017.

The professional organisations of specialists working in land issues had been largely involved in the preparation of the Code. However, two months after the law was passed, the organisations representing the professions working on land issues (notaries, surveyors, architects, etc.) published an open letter denouncing the inconsistencies and weaknesses of the text, and in particular calling into question the change from land titles to Land Ownership Certificates.Footnote ²⁶ For them, the Code made confusing terminological choices and introduced new legal concepts whose consequences had not been assessed. It did not remove legal dualism. More than that, it introduced new land insecurity by challenging the ‘inviolability and sanctity of ownership’ and by introducing a five-year time limit during which it is possible to contest a Land Ownership Certificate.

For these professionals, those few openings in the conception of land titles represented sources of insecurity and were unacceptable. They followed the analyses of lawyers (Djogbénou, Reference Djogbénou2013, p. 28) who, while acknowledging the innovations of the Code, also considered that the possibility of challenging a Land Ownership Certificates weakened it deeply and was ‘a step back from the 1965 law’. They considered that this measure would increase the number of disputes, and the risk of the certificates being challenged prevented banks from granting loans.

The communes had had little direct involvement in the preparation of the reform. Under the Code, they no longer have the right to endorse sales agreements and receive taxes for that. However, the revenues derived from their land responsibilities constituted a significant part of their resources: throughout the country, resources of land origin represented 14–18 per cent of communal revenues, half coming from taxes on land sales agreements (Gandonou and Dossou-Yovo, Reference Gandonou and Dossou-Yovo2013, pp. 29–30). The ANCB was particularly active after the Code vote. It engaged in efforts to secure a seat on the ANDF Board of Directors and the Land Advisory Council, and to recover some prerogatives for communes, mainly with ADCs.

Development projects carrying out PFRs and the ANCB had also invested in the new ADCs and insisted on the need to better define its content and modalities. They worked together to propose a methodology and format for ADCs and fought to ensure that their delivery – which must be paid for – is devolved to the municipalities.

The 2017 amending law tried to answer these issues. It provided for the return to the land title, with its intangible nature. Any fraud or error can again only give rise to compensation, paid by the state from the newly created land compensation fund (art. 147). The state may then claim compensation from the fraudster. The return to land title was legitimised by both the OHADA (French-speaking Africa’s regulations for business) and the fears expressed by professional organisations of lawyers and surveyors. The fact that the state should compensate victims is an innovation that might be costly for the state.

In accordance with the demands of the ANCB, the 2017 law recognises the responsibility of communes to issue ADCs, without explaining whether those ADCs are to be registered with ANDF and how. In the 2018 Finance Act, the state defined tariffs, preventing communes from setting them freely and reducing their expectations in terms of financial resources. An ADC would cost around CFA Franc 35,000 (€53), depending on the size of the plot. This is well above the cost of the former CFRs (between CFA Franc 2,000 and 5,000 – €3–7.50 – depending on the commune and the size of the plot) and quite expensive for rural people.

In practice, as lawyers involved in the Code recognise it, the ADC is nothing more than a renewed administrative certificate, with more formalised procedures and a mandatory field survey involving village land committees. The first requests registered in the municipality of Tchaourou were made by buyers looking for a ‘document of presumption of ownership’ to initiate a request for land title. As farmers’ interest in documents is not very high in most of the country, it is very likely that the ADC will mainly play this role, diverting it from its primary purpose.

The 2013 text was very restrictive and only a few documents could be used for requesting a land title. The documents giving presumption of rights and allowing a title to be applied for have been extended and now include again administrative certificates and CFRs. Sale agreements are still not recognised as giving a presumption of ownership.

An additional paragraph to article 112 should make it easier to transform housing permits into land titles. A first decree (No. 2018–473 of 10 October 2018) was promulgated that concerns housing permits established on land belonging to the state. Another one was scheduled for housing permits delivered by communes on non-state land, outside the law, which is a crucial issue for many urban dwellers, but it has not been released. The duration of the transition phase has been extended to ten years (art. 256) – that is, until 2023 – which will be barely sufficient for the actual deployment of the system.

The 2017 version of the Code also contains a strange, long new section of eleven articles on ‘land ownership in border areas’. According to some informants, a specific law on borders had been prepared but had not been put on the agenda of the National Assembly. The content of this draft law in this new section was incorporated into the Code at the request of the National Border Management Agency, and the Members of Parliament hardly noticed it during the debate in the Assembly.

Several contradictions or inconsistencies (or even French-language mistakes) identified earlier have not been addressed and new ones have been introduced, showing the limited ambition and care of this review.

1 A Struggle between Two Visions of Problems and Solutions

The first controversy was between PFR promotors and the MCA formulating team, on the way to adapt to the new context of the 1990s–2000s. While some experts timidly tried to discuss the centrality of the land title in the urban context, they did not constitute a real force, and it does not seem that associations representing urban populations mobilised on the subject or criticised the focus on land title in terms of inclusion.

The historical network of actors supporting PFRs as an alternative to land title was partly anchored within MAEP, and partly within the various projects implementing PFRs under its supervision. They highlighted the specificities of land tenure in rural areas and they contested the land title, both in its logic of exclusive private property guaranteed by the state, and in its procedures, cost, and defects in terms of people’s security of rights. Some of them joined the MCA team and were considered as traitors by the others, who continued to challenge the very logic of the reform promoted by MCA or to negotiate compromises, using their position as experts in field projects, anchored in communes, to emphasise concrete problems linked to the implementation of the Code. These opponents tried to preserve CFRs as a durable solution for farmers and a commune-level management system for those certificates, autonomous vis-à-vis the national land administration. For them, a Land Code only had to be a hat, encompassing various sectorial texts including the 2007 Rural Land Law.

While farmers’ organisations had not been involved in the design of the PFR and the drafting of the 2007 law, a young farmers’ union quickly mobilised against the risk of land grabbing linked to the emphasis on titling and fought to obtain better control over those risks. The umbrella farmers’ organisation explicitly entrusted the land reform issues to this farmers’ union. However, its leaders, who are big farmers, did not necessarily contest the land title itself. On the other hand, livestock associations were rightly concerned about the future of pastoral areas, mobility, and access to crop residues in a Code based on private ownership that does not say a word about their existence.

Even if their priorities were different, the network of experts defending historical PFRs, MAEP, and the farmers’ organisations thus shared interests in working together, exchanging information on a process that they found very opaque and trying to influence the draft Code. After the vote of the Code, each of them repositioned themselves around the issue of implementation and its practical problems. The project teams made a new alliance with communes. The new issues related to the future of existing CFRs and completed PFRs, the future role of communes in land management, technical criteria for the implementation of PFRs, modalities for the integration of PFRs, and the future cadastre. These were all points of contention with an ANDF that had just being set up and was seeking to assert itself. Those tensions reflected both different conceptions of reform, a defence of PFRs (which seemed threatened by the ANDF), and a demand for the autonomy of projects and their programming from ANDF. In particular, the end of 2016 saw a major conflict between ANDF and the projects: ANDF wanted to stop every cadastral operation until its own cadastral software was ready; while the project teams agreed that while new PFRs had to be integrated later into the cadastre, they refused to stop making new PFRs because of their own objectives and contractual commitments.

After the vote on the Code, the issue of the desirability of formalising land rights, which had been raised in the early 2000s around the scope of validity of PFRs and the case of pioneer areas and village reserves (Edja et al., Reference Edja, Le Meur and Lavigne Delville2003), had largely disappeared from the debate. The latter then concentrated on the spaces left by the Code for other options: was it still possible to deliver CFRs on PFRs that were already finished? Were PFRs without legal formalisation useful for securing farmers’ rights? In private, some stakeholders questioned the relevance of continuing to conduct PFRs in the new context. Others tried to address the issue of user rights, and the relationship between rights holders and farmers, in conjunction with the Ministry of Agriculture. This related issue of land tenure security had always existed in historical PFRs but had remained secondary.

2 Inter-institutional Struggles to Protect Interests

A second front of struggles opposed the reformers to existing land management bodies. They first faced DDET, responsible for the issuance and administration of land titles within the Ministry of Finance. We saw that DDET’s lack of equipment and its practices, but also its high degree of centralisation, were one of the causes of the problems identified. The decentralisation of DDET was already planned in 2004. The MCA team fought throughout the Compact for the opening of district offices, which DDET slowed down as much as it could. Such decentralisation was essential to bring land administration closer to the people, but it meant cutting the power of the DDET head, who had control over title application files for almost all the country and in particular on the periphery of Cotonou where the land issues are most intense. The strong resistance of DDET to any decentralisation finally convinced the MCA team that internal reform was impossible and that land administration should be entrusted to an autonomous agency.

The Ministry of Finance did not seem to be very active in formal debate arenas, preferring to follow the process, negotiate directly at a high political level, and assess the risks without being overly visible. DDET exercised strong passive resistance during the first phase. After the reform was adopted, the Ministry of Finance invested heavily to win the battle for the agency’s supervision. Having won, it became a supporter, undertook a series of internal reforms to integrate the ANDF into its organisational structure, reformed the scope of DDET’s competence, and organised the transfer of files.

The Institut Géographique National du Bénin (IGN) is part of the inefficient public structures in a situation of monopoly rent. The entire history of PFRs has been marked by complicated relations with the IGN, which did not provide – or only did so very late – the services that were required of it in terms of the provision of aerial photographs or satellite images. During the MCA project, the IGN was responsible for the quality control of the PFR maps produced, which it did with very variable rigour. Without real success, the reform tried from the outset in the early 1990s to reform the IGN by integrating it into the ANDF. The IGN finally avoided it.

The reformers also opposed the communes. The MCA team and land specialists strongly criticised their land practices (allotments, issuing administrative certificates, asserting sales agreements without real rigour, and issuing housing permits outside the legal field). Mayors rightly consider that the reform represents a deliberate desire of the legislator to reduce the prerogatives of communes in land management (Gandonou and Dossou-Yovo, Reference Gandonou and Dossou-Yovo2013, p. 24). As we have seen, the reformers condemned communes’ land practices without taking into account the institutional deficiencies of the state, which partly explains their ‘semi-formal practices’, and without attempting to reorganise and upgrade them. The Code removes most of the land responsibilities of communes, also greatly reducing their resources. After the vote on the Code, communes fought to recover some responsibilities and incomes.

The reform also challenges the role played by MAEP on rural land. MAEP is divided between the promotion of family farming – and thus the protection of peasant rights – and of agri-business. While the 1999 policy paper supported family farming, the first draft of its 2005 policy document was clearly pro-agri-business and the official position is now mixed. From an institutional point of view, the fact that the management of the reform has been entrusted to the Ministry of Urban Planning extends its prerogatives to the rural world. MAEP tried to maintain control over rural land, mainly in supporting the PFRs, the supervision of which was explicitly assigned to it in the 2007 law. Its defence of this Rural Land Law is as much about this institutional challenge as it is about a vigorous defence of peasant rights. However, the Ministry is politically and technically quite weak and it could not really influence the reform. After the vote on the Code, MAEP repositioned itself around the productive dimensions of land and invested in the theme of tenure contracts, totally neglected by the Code.

3 Professionals: Between Carrying Out the Reform and Protecting Vested Interests

The last group of actors is made up of the various professionals working in the land sector, in particular surveyors and notaries. Surveyors have a very strong position in Benin. They are at the heart of the defence of the classic land titling procedure, which offers them a comfortable income. Indeed, for each plot they have to do two delimitations, the first to make the map that is part of the application, the second during the titling procedure. The decree regulating their profession gives them a monopoly over all topographical work even where less skilled professionals could do it cheaper (we have seen how they fought for leadership over land operations in MCA PFRs). They are also among the actors who benefit greatly from the confusion by managing land subdivisions in a discretionary manner, manipulating registries and selling the land information they keep for themselves. IGN surveyors frequently hold positions both in the public service and in private practice, with obvious conflicts of interest. They have been at the forefront of demands to apply urban standards to rural areas, and to take advantage of the use of high-precision GPS to impose unnecessary accuracy. MCA commissioned the President of the Order of Surveyors for the study on PFR techniques (Steward International, 2009), which, not surprisingly, advocated the application of titling standards to PFRs.

Land professionals can be considered as co-authors of the reform, including when they have hindered any simplification of procedures that would be against their interests. One can wonder if and how far extending their role and clarifying the rules of the game will be sufficient to stop their illegal practices. Notaries also benefit greatly from the reform: at the end of the transition period, no plot of land can legally be sold without the sale being carried out in the form of an authentic deed or in any case registered in the minutes of a notary. This increases notaries’ volume of activities and allows them to develop their intervention outside urban centres. Although they were involved in the drafting of the Code, surveyors and notaries were both signatories in April 2013 to the open letter vigorously contesting the Code.

1 The Issue of Inclusion

Providing that ANDF is able to deliver quickly reliable land titles and to manage them soundly, the main issue of the reform is inclusiveness. Real efforts are being made to reduce the fees of the titling process. ANDF’s services and various taxes should not cost more than CFA Franc 100,000 (€150). However, the overall reduction in the cost for citizens is doubly limited: first, surveyors freely fix the cost of demarcation, which is one of the major costs of the procedure, and frequently exceeds CFA Franc 300,000 (€450). Second, the registration procedure requires several steps (purchase, having a certificate, etc.) and the full cost for users includes the cost of those steps, as well as other indirect expenses (travel to the office, etc.). Introducing notaries as a mandatory step for transfers adds significant costs upstream. The total cost continues to be high regarding the value of plots in towns outside major urban centres and may be even more in rural areas.

Standard land registration and land title have historically been designed to be in the service of colonial officers and their allies, and then of national elites after independence, and are by no means meant to be in the service of the entire population. The possibility of really lowering the costs is limited as long as that still is the reference. The problem is considerable for the urban poor or small middle class. It is crucial for rural dwellers. Therefore, the ability of the reform to make title largely accessible to the population risks being hampered, to a level that is still difficult to predict.

2 The Issue of Cadastre

Created by the Land Code, the cadastre is supposed to provide information also on untitled plots of land, thus avoiding the problems linked to the fact that legal dualism is maintained. Multifunctional, it has technical, fiscal, and legal roles. It is supposed to cover the entire territory. By assigning a unique number to any plot of land in the country, whether or not it is the subject of a land title, the cadastre is intended to avoid ambiguities about presumed owners and facilitate the transition to title of unregistered plots.

The first step, which is in progress, is to digitise information on existing titles and geo-localise them. The second step is to gather and compile existing land information wherever there has been work to map plots and identify the rights holders, such as subdivisions, PFRs, and urban land registers. The question here is the reliability of the information, and especially its accuracy when the documentation is old or incomplete: there is a very high risk of creating an obsolete database from the outset, putting wrong names in the software. The third step concerns the creation of land information on areas on which there is currently no information, which form the vast majority of the national territory. The approach was tested in early 2019 by ANDF and the Dutch-funded Projet de Modernisation de l’Administration Foncière (PMAF) project. The PFR methodology, which combines the identification of plot boundaries and the investigation of rights held, could provide most of the necessary tools. Identification of the presumed owners may be trickier, as the difficulty in transforming housing permits into land titles has shown. In rural areas, developing the cadastre will face the same difficulties as PFRs for areas that are not individually owned (land reserves controlled by customary authorities, lineage heritages, etc.) and for plots where rights are not quasi-ownership. Even more than PFRs, the future cadastre will reduce overlapping rights into a single registered property right and exclude other rights holders since there is no provision for registering them. It will not be able to avoid the risk of generating conflicts and spoliations.

In addition, the real problem of any cadastral system is updating it. When it is not possible to ensure the registration of changes, a land information system quickly becomes obsolete. Registering millions of plots of land in a few years is a challenge that only two authoritarian countries (Rwanda and Ethiopia) have succeeded with in Africa. Success in ensuring updating is another question: in Rwanda, in some municipalities, the rate of unregistered transfers is very significant (Ali et al., Reference Ali, Deininger, Mahofa and Nyakulama2021). The ability of the future cadastre to register changes is all the more uncertain since the registered land will not have legal status.

Assuming that the obligation to title a plot of land before it is sold can be guaranteed and that every sale is recorded (which is not evident, as we have seen), the legal cadastre will slowly expand and update with the rhythm of sales (and recorded inheritances). But a large part of the territory, where the land is transmitted by inheritance, will remain for several decades outside the updating mechanisms and therefore with obsolete land information, which raises questions about the opportunity of systematic mapping, at least for a significant part of the countryside.

The future of the land cadastre therefore depends first on Benin’s ability to mobilise the necessary resources to implement it, and thus on the willingness of donors to provide the corresponding resources. But it depends even more on the ability to ensure that information on ‘presumed owners’ – with or without presumed ownership documents – is accurate and updated, which could be problematic where sound information does not exist and where there are few or no incentives for citizens.

3 The Issue of the Transition: Length and Management

The reform strategy initiated in 2004–2005 was both proactive and extremely ambitious. It was designed based on both a quite technocratic vision of change and an overly optimistic timetable. This desire for a rapid changeover was also reflected in the 2013 Code, which provided for a transitional phase of five years before all the measures would be in force, and in particular that any sale would be carried out in an authentic form or recorded in the minutes of a notary. This corresponded to the logic of the replacement paradigm, which promotes a rapid switch from ‘informal’ rights to generalised formal ownership and aims to prevent the persistence of intermediate situations and devices, on the margins of the law. However, the time needed to implement the measures provided for in the Code and necessary for such a switch is in contradiction with this five-year transition phase. Besides the creation and deployment of ANDF, the full deployment of the new institutional framework requires having surveyors and notaries available in every region: in 2013, there were only thirty-five notaries in Benin, all or almost all of them based in the south of the country. The state opened new offices in the regions, but these remain largely insufficient. Consequently, the compulsory registration of any sale by an authentic instrument or by an agreement recorded in the minutes of a notary will remain difficult to achieve in a significant part of the country for several years. The 2017 revision extended the deadline to ten years (art. 516) – that is, 2023 – which was still a very short timescale.

The Code opened up the possibility of defining transitional arrangements, but this was not taken up, which caused institutional uncertainty, particularly on the issue of sales of plots of land: were sales agreements signed by communes forbidden from the Code’s promulgation or only after the five-year transition? The shortcomings in thinking about the temporality of the reform (and more generally the temporality of institutional change) are also reflected in ANDF’s aborted desire to suspend topographical operations until the cadastral software is ready, as if land dynamics could be stopped until the new system is set up. Since the transition inherent in such a reform can probably not last for less than 15 or 25 years, it seems important to think of it as such, by dealing with intermediate situations, which are inevitable. Failing to do so leads to the risk of leaving a legal and institutional fog, and the risk of seeing new unregulated, adaptative semi-formal solutions redeployed during this time.