Land Use Policy 94 (2020) 104521

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Land Use Policy

journal homepage: www.elsevier.com/locate/landusepol

Analyzing the Benin Land Law: An alternative viewpoint of progress T

Philippe Lavigne Delville*
Socio-anthropologist, Senior Researcher at Institut de Recherche pour le Développement (IRD), IRD/UMR GRED, Université PAUL-VALERY, Site St Charles, Route de
Mende, 34 199 MONTPELLIER Cedex 5, France

A R T I C LE I N FO A B S T R A C T

Keywords: Ekpodessi and Nakamura recently published in Land Use Policy a paper on the 2013 Benin Land Law, the stated
Land law objective of which was to evaluate its effectiveness. The 2013 Land Law is mainly limited to reforming land
Policy analysis administration bodies and does not alter the underpinnings of existing land law. On the contrary, it reaffirms the
Implementation focus on private ownership and aims at simplifying and reducing the costs for accessing a land title. A new
Evaluation
agency responsible for land administration has been created and just began to deliver titles, but needed policy
Legal pluralism
Research methodology
tools were not yet in place at time of writing. It is thus too early to evaluate the new law’s effectiveness. In any
event, this paper questions the assumptions and the content of the Benin Land Law and its ability to positively
address land issues. The paper argues that effectiveness cannot be assessed without a conceptual frame of re-
ference and associated methodology for critique. On the basis on the author’s in depth field research on land
policy processes in Benin over many years, another viewpoint is offered on key findings in Ekpodessi and
Nakamura’s paper.

In their published paper in Land Use Policy, Ekpodessi and
Nakamura (2018) aim to make « an evaluation of the effectiveness » of
the 2013 Land Law in Benin1 . The issue of policy effectiveness is indeed
an important issue, particularly in the field of land policies. As policy
scientists know, the reality of a policy is not so much in its programs
and laws as in its implementation, with often strong gaps between in-
tentions and reality (Bardach, 1977; Pressman and Wildavsky 1984
(1973)). As an anthropologist, I have been studying the Benin case for
the past 15 years, at national as well as local level, following policy
processes and field projects, tracing networks of actors, analyzing
controversies, policy debate and interpretations of law, with a metho-
dology based on an in-depth knowledge of actors, repeated interviews –
including with lawyers, either supporting or criticizing the reform -,
study of reports and legal texts2 . In this paper, I elaborate on my own
research to highlight some issues of this Law and and discuss the main
assumptions of the Beninese land reform. I then discuss some points in
the above-mentioned paper that, at the light of my own research, reveal
imprecisions and misinterpretations which risks consolidating an in-
accurate understanding of the intentions of the new land law in Benin.
The case of Benin is particularly interesting because land debate
began in the 1990s and because, within a few years (2007 and 2013),
Benin has adopted two different land reforms (Lavigne Delville, 2010).
Relying on an “adaptation paradigm” (Bruce et al., 1994), the first one
focused on rural areas, and constructed an alternative to classical re-
gistration and land title, which its promoters considered fundamentally
unsuitable for rural areas. It was prepared from the early 1990s on-
wards by rural development projects funded by European donors,
which created a specific methodology to identify and register farmers’
individual and collective land rights. The Rural Land Tenure Act 2007
created a new legal status, the Rural Land Certificate to legalize rural
plots registered this way and a new land administration framework,
anchored in rural communes.3 The second reform has a national focus.
It has been led by the Ministry of Urban Planning with the support of
the US Millennium Challenge Corporation (MCC).4 Initiated in

⁎
Corresponding author.
E-mail address: philippe.lavignedelville@ird.fr.
1
The 2013 law (http://www.droit-afrique.com/upload/doc/benin/Benin-Code-foncier-domanial-2013.pdf) and its 2017 revision (http://extwprlegs1.fao.org/
docs/pdf/Ben174252.pdf) are available online.
2
See Lavigne Delville (2018) for a reflexive analysis of my research methodology.
3
We use “communes “and not « municipalities » because in Benin most communes are rural and urban, and include a central town and a number of villages.
4
The MCA (Millennium Challenge Account) is the national team set up under the aegis of the Presidency of the Republic to develop and manage projects submitted
to the Millennium Challenge Corporation (MCC), an American aid agency founded following the Monterrey Conference in 2004.

https://doi.org/10.1016/j.landusepol.2020.104521
Received 17 April 2019; Received in revised form 4 February 2020; Accepted 7 February 2020
Available online 15 February 2020
0264-8377/ © 2020 Elsevier Ltd. All rights reserved.
P. Lavigne Delville
2004–2005 and prepared between 2006 and 2011, this reform aims to
standardize land law and develop access to land title5 by reforming the
land administration. It was embodied in a Land Policy Statement
(MUHRFLEC, 2011, followed by the adoption of the Land and Domain
Code in 2013 (slightly revised in 2017), and the establishment in 2016
of a National Agency of Private and State Land (Agence Nationale du
Domaine et du Foncier – ANDF). Three years later, the new institutional
framework is largely in place and the first new titles have been issued.
However, needed procedures, devices and tools are not yet designed
and implemented. The digitalization of existing land information and
the preparation of the future cadastral tool are still in progress. The
reform is thus still in early implementation. Field research would be
useful to look at it first steps, analyse the practices of the new local Land
Boards, see what kind of people ask for a title and check whether the
stated willingness to improve rigor, reliability and rapidity in land
administration is concretized. It is too early to evaluate its effectiveness
with such information.
Nevertheless, it is possible to analyse the content of the 2013 law in
respect of the strategies and principles it promotes, and to detect their
underlying assumptions. This reform is found to conservatively con-
sider land rights and administration. It focuses on individual private
ownership and state-led registration. It does not take into account the
diversity of rights through the country and the fact that, in rural areas
at least, people’s rights are not everywhere individual ownership. Land
conflicts are seen as the consequence of informality and registration and
titling to individuals are retained as the answer. Reformers do not
question the very logic of the classical registration and titling, despite
the despite the fact that titled land ownership covers a small percentage
of the national territory: in 2004 there were only 14 606 land titles
(MUHRFLEC, 2009)5, for a population of 6,769,914 inhabitants in
2002. For them, the “semi-formal” procedures that municipalities (and
before them local administration) have put in place (signing land sales
contracts or ensuing administrative land certificates on untitled plots,
giving housing permits outside state land, etc.) are only a persistence of
outdated approaches and cannot be seen as pragmatic – even if not fully
satisfying - answers to shortcomings in the land law and state rule on
land. The sanctity of individual titling, the uniformity of the rules, have
been reaffirmed in circumstances where, on contrary, a diverse range of
titling options could be necessary to provide tenure security to most
citizens.
The reform is very ambitious, in a classical direction. It wants to
make access to land title quicker, cheaper and more reliable and
therefore to profoundly reform the land administration. Led by people
in the Ministry of Housing, it has been a war machine against the Land
Directorate (Ministry of Finance) that was responsible for issuing and
administrating land titles. Highly centralized, without human and fi-
nancial resources, subject to corruption, the Land Directorate strongly
resisted institutional change and decentralization. Issuing a single up-
to-date text, integrating private land and State ownership is seen as a
success by numerous Beninese actors. Reorganizing the land adminis-
tration and transferring the main responsibilities to a new agency, with
decentralized bodies and stronger human resources is a strong
achievement against administrative and corporatist interests and
powers. The land law also integrates several innovations, such as ex-
tinctive prescription on untitled land, provisions for collective housing,
rural land market regulation, and new and heavy sanctions against
fraud.
These are clearly novel. However, the effectivity and impact of these
provisions are still to be demonstrated. Moreover, it is clear that the
reform does not change fundamentally the obstacles to access to legal
documents on land for ordinary people. It still relays on multiple
5
In 2013, the classical Land title has been replaced by a “land ownership
certificate”, which could be contested during 5 years in case of fraud or mistake.
The 2017 revision came back to the Land title.
2
Land Use Policy 94 (2020) 104521
procedures where one needs first having a “document of presumption of
ownership”, with a plot map, to be able to ask for a title, for which
another plot map will be necessary. While the State reduced its taxes,
surveyors freely settle their prices and the full cost for getting a title is
still heavy for citizens. The reform seems to be tailored more for urban
well off people buying plots than for the greatest number of citizens.
Moreover, the law has several contradictions (Djogbénou, 2013) even
after its 2017 revision. It does not address the issue of equity nor the
one of the diversity of norms and rights which was at the heart of the
2007 reform (Lavigne Delville, 2014). It wants to overcome legal du-
alism but it does not succeed: it repeals administrative certificates and
rural land certificates but creates new documents like attestations of
customary possession or certificates of belonging. The law risks creating
new sources of insecurity for the people, including failures to sustain
legal recognition of documents already issued.
There are thus many possible issues for an analysis of the Benin
2013 land reform and research based on various disciplines and focus is
necessary. Whatever focus is chosen, policy analysis and evaluation
require relevant frames and methods. In this respect I have concerns
with Ekpodessi and Nakamura’s paper. Its stated objective is to “assess
the effectivity of the 2013 Land Law” and “to examines the Beninese
Land Law 2013-01 and its effects on land use and land ownership across
the Republic of Benin” (p.62), but their focus is very broad and they do
not explain their methodology. Their paper provides a broad historical
picture, a general overview of the content of the Law, and highlight
some contradiction with current practices. They do not study its im-
plementation, which is crucial to be able to discuss the issue of effec-
tiveness (is it implemented? Are procedures applied? To which extend?
Do citizens use and benefit it? Which ones?), and not only the one of
relevance (are the provision coherent with practices and problems and
able to provide answers to problems?). They study even less its “effects
on land use”. It is too early to assess this given the state of im-
plementation and it anyway requires in-depth field work on peoples’
and land administration field officers’ practices.
Several statements add to concerns. In light of the high land spec-
ulation in periurban (and in rural areas where urban elites are acquiring
land) (Adjahouhoué, 2013; Gbaguidi and Spellenberg, 2004; Sotindjo,
1996), one can must ask what is this “sociological land practice con-
sistent with urban expansion, under which an individual is unable to
appropriate land as a commodity” (p.68). It is true that the law relies on
the classical conception of land titling, but it is surprising to read that
“the new legislation doesn’t abolish past colonial and postcolonial laws”
when art. 537 explicitly abrogates the 1960, 1965, 2007 land law as
well as “every previous provision in contradiction with the present
code”. Or that “housing permits and certificates of sale remain official
land documents delivered by the land administration” (p.67) as the
2013 law explicitly repeals these documents: no new one can be issued;
existing ones can still be used in court (art. 375) but can no more be
used as “presumption of ownership” documents to apply for a land title
(art.4).
Several interpretations are also surprising. It is true that the reform
did not succeed in suppressing legal dualism, but this dualism has a
long history and has not been created by the law. Moreover, coexistence
of titles and land certificates is not a problem per se, if their articulation
is clear. On paper, this is the case: every plot will be recorded in the
cadaster whatever its legal status (art.457), customary rights may exist
as long as plots are not sold (art.351 and 17); customary owners can ask
for an “attestation of customary possession” to apply for a land title
(art.352). In the field, the reality will probably be different, but the
authors do not give any argument to support the fact that “in practice,
the impreciseness of these two types of rights leads to land insecurity”
(67) nor explain these impreciseness and whether it is in the law or
practice.
The authors state that “with decentralization reinforced by Law N°
2013-01, the responsibility of issuing and storing sale agreements the-
oretically passed to the local councils” (p. 68). Such a statement is true
P. Lavigne Delville
for the 1993 decentralization laws. However, far from reinforcing de-
centralization, the 2013 Law repeals this responsibility from the
councils and gives it to the Land Agency Local Offices. A head of
commune signing a sale contract or issuing a housing permit may now
be fined and jailed (art. 507–508).
The authors state that “no allusion is made on land selling proce-
dures in the new law” (p.68). It is true that the issue of sale’s nego-
tiation and contracting is not dealt with (what has to be in the contract
for it to be legal and to avoid later contestation?). Nevertheless, the
whole law is oriented toward private ownership rights and securing
land buyers. Can we accurately speak of “no allusion” when a full
section is devoted to “ownership through buying” (art. 12–18)? When
the Law clearly states that no land sale can be legal if the plot has not
been titled (art. 16–17) – which is supposed to solve the issue of the
seller’s ownership right - and that sale contracts have to be established
by notaries or at least recorded at their offices (art. 18)? Linked with a
too broad focus and an absence of methodology, these mistakes, in-
accuracies, and unjustified interpretations force the author to question
the soundness of this otherwise brave attempt to examine the impact of
the land law.
Requiring that every plot has to be registered before it is sold is a
founding assumption of the new Law. Ironically, it was the case in the
1965 law on ownership (art 5-2), but had never been applied in prac-
tice. In rural areas, most people sell their land because of an urgent
need. They do not know the legal procedures. They cannot wait for the
plot to be first registered. They often sell family land that does not
belong to a single indvidual. Access to a land title remains costly.
Because of all that, one can think that informal sales will continue. To
what extend? Will the Land agency officers confirm the nullity of the
contract (art. 16) even if the buyer is powerful? Will informal ar-
rangements allow legalizing illegal sales, undermining the very heart of
the reform? That is where the issue of effectiveness is important. The
capacity of the reform to reorganize the practices of all stakeholders
over time is still pending. There are also strong contradictions between
the intentions and requirements of the Law and existing practices. The
numerous actors that had vested interests in the former situation are
still there and will try to protect them (Lavigne Delville, 2019). It is in
the practices of the new land administration, and the way its staff will
more or less succeed in putting rigorous procedures in place, resisting to
pressures, adapting to unintended situations, and finally reorganizing
actor’s practices and routines that the effectiveness of the reform will be
constructed. And assessing this, first and foremost, requires fieldwork.
Author statement
The author thanks Clement Dossou-Yovo, lawyer, for their
Land Use Policy 94 (2020) 104521
numerous discussions throughout the years and his support in analysing
the 2013 Land law in Benin.
Acknowledgements
Material for this paper comes from several research projects, mainly
'Une Action Publique Eclatée?" (ANR 10 SUDS 15), funded by the
French National Agency for Research, and 'Economic Development and
Institutions' (Oxford Policy Management/PSE/ADE/Université de
Namur), funded by the UK Department for International Development.
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