Most of the information provided in this chapter is to be found in a report published by the IUCN (1988)[70]. Except for Congo (draft legislation, 1992)[71] and Cameroon (Plan de zonage : profect for the creation of zones being investigated for the southern half of the country, 1992), we do not have more recent documents. A new land and forest legislation is being set up in Cameroon ; a new forest code in Zaïre, and a proposal for a legislation pertaining to fauna in Equatorial Guinea.
At the time of their independance, the African countries referred to in this report (except Equatorial Guinea for which we have little data) were faced with "a system of land tenure characterized by the co-existence of customary ownership and tenure based on written law" (particularly where cash crops are concerned). Previously, land that was not titled or under cultivation was protected forest, according to colonial Belgian and French forest legislations. (IUCN, 1988 : 8-9)
Protected forests belonged to the colonial State, but local populations had rights equivalent to rights of use (for gathering, hunting, grazing, cultivation after clearing the land by burning). But the Administration did impose restrictions on customary rights if they were seen to threaten forest conservation. "In a context of swidden agriculture, the boundaries of protected forests were constantly moving. Clearing land withdrew it, while abandoning it brought it within the category of protected forests." (op.cit.)
This situation survives today, despite the promulgation of land and forest legislations. According to present African legislations, a forest is defined as a non-cultivated natural environment.
After attaining independance, Gabon, Cameroon and the Central African Republic maintained customary law (the latter two preserving more of it than Gabon did), while Zaïre and Congo abolished the private ownership of land.
Land law in Gabon has retained the customary rights applied to national forests belonging to the State (with land development as criterion for security of tenure). In Cameroon and the CAR, "written land law (...) formally recognizes customary ownership, but has provided it with a lower legal status than ownership under written law. In particular, there are very strict requirements as to the actual development of the land. As for forests, in Cameroon customary land is included in the domaine national, land that belongs to the State, and in the CAR, they are counted as customary forests."
Available data on land legislation is insufficient.
Forest legislation : a short decree, Law Ndeg.14/1981, September 29th, 1981,, mainly concerned with forest exploitation.
Legislation relating to fauna : there has been no confirmation as to the application of the proposal on this subject put forward by the Ministry for Waters, Forests and Forest Regeneration.
Traditional hunting : in terms of hunting, article 65 of the 1981 order in council specified that the licence for traditional hunting allows hunting for subsistence, using traps, and only covers the holder's area of residence.
Article 37 sprecifies which species are pests in specific areas and at particular times of the year. There are no restrictions on the desruction of such species (IUCN, 1988 : Eq. G. 13-5).
Representativeness of populations : the village headman is elected by a village council. Above him is the group's chief who has inherited powers that extend over a set of villages. He represents the community on a local level. Then there is the community chief and, above him, the chief of the area (referred to as "commissaire"), both designated by the government.
Land legislation
The main legislations are contained in : Ordinance-Law Ndeg.66-343, June 7th, 1966, Law Ndeg.71-008, December 31st, 1971, and Law Ndeg.73-02, July 20th, 1973.
According to the 1980 Amendment (Law Ndeg.80-008) :
1) All land belongs to the State.
2) Land rights given by the State to natural or legal persons are in the form of ordinary or life concessions and it is a right of enjoyment. Right of land ownership obtained before the 1975 law are automatically converted into concessions : life concessions for natural persons of Zaïrean nationality, on condition that the land has actually been developed, and ordinary concessions for foreigners and legal persons.
3) Land occupied by local communities and exploited individually or as a group, according to local customs and traditions, now belong to the State (art. 385 and 386). Rights of enjoyment lawfully acquired over this land are regulated by the Ordinance of the President of the Republic (art. 387)[72].
Since land occupied by local communities thus belongs to the State, traditional land rights are in no way a form of land ownership and customary chiefs (whom the law ignores) have no powers over it. Besides, new concessions are often granted though it may go against local traditional customary land rights. This creates conflicts between State representatives or new owners and those who traditionally have authority over decisions pertaining to land.
Forest legislation :
A Guide to forest exploitation (last edition 1986) serves as forest legislation. The Decree of April 11th, 1949, and the Ordinances published between 1947 and 1955 no longer apply. A new forest code is being prepared.
Conditions for the traditional exploitation of the various categories of forest :
According to the Decree of April 11th, 1949, the category of "classified native land" allows for the occupation of land by indigenous populations after obtaining a certificate from the administration. But the Decree is now obsolete, to such an extent that the forested areas of Zaïre that are not included in National Parks all belong to the State.
In practice, customary law still regulates forest exploitation. It is therefore necessary to reach an agreement with the customary chief on the one hand, and obtain permits for felling from the State on the other.
At best, a kind of balance has been instaured, an equilibrium which stands out in the case of permits for felling : whoever obtains such a permit from the State must then obtain permission from the customary chief to whom he will also pay "taxes" (IUCN, 1988).
Traditional hunting : sine diem suspension of hunting by decision of the Executive Council has paralysed the application of the 1982 Law on hunting (Ordinance-Law Ndeg.82-002).
According to the 1982 Law (art. 54, 55 and 56) the category of "community hunting permit" allows the inhabitants of a community to hunt as a group under the responsibility of the local chief, and this within the limits of their land and dietary requirements. However, as things stand at present, it is impossible to establish village hunting grounds. Community hunting permits limit their holders to land on which they traditionally have the means to hunt (art. 55) ; in other words, other permit holders may come to hunt on the land. The traditional community therefore has no exclusive rights of access to the animal resources of the area in question.
In terms of the protection of persons and goods from wild animals detrimental to their well-being, animals that destroy crops for example, legislators have withdrawn the category of pests (IUCN, 1988).
The code on land and State land (code domanial et foncier) (Law of April 21st, 1983) enables the State to carry out systematic distraints upon land and abolish all rights of ownership over land, especially customary rights.
According to the draft proposals (Breton, 1992), the new system of land tenure would include the reintegration of customary rights within the issue of land legislation. However, the legislation remains imprecise as to what exactly is meant by customary rights.
Land legislation
Article 2 of the code domanial et foncier (Law Ndeg.52/83, April 21st,1983) abolishes customary land rights, legally at least, and only allows a right of utilization and enjoyment : land belongs to the people of the country and they are represented by the State (art.1deg.). However, land is still regulated by the de facto co-existence of written and customary law. (MESSANVI FOLI, 1986 : 86)
Forest legislation
Article 13 of the code forestier (1974, reviewed in 1982 and 1984) establishes the traditional rights of customary use (clearing and cultivating the land).
Traditional exploitation in the various categories of forests. The legislation separates :
-Production forests (category of classified forests) : rights of use are limited to collecting deadwood, gathering fruit, food, medicinal or ritual plants and to the areas used by domestic animals (art. 14). Cultivation is forbidden. Clearing is forbidden "except in cases where the Minister uses his right to authorize temporary swidden agriculture, the Office for Waters and Forests being in charge of supervising the process." (IUCN, 1988)
-Development community forests are selected and ear-marked for providing the means of subsistence to those living in the area (art. 3, 6deg.). On this type of land, the State may set up programmes for the benefit of local populations, e.g. programmes developing forestry and animal husbandry. These forests more or less correspond to the area included by the buffer zones that are to be developed in the future. None of the countries concerned by this programme for the rational utilization of forest ecosystems, funded by the EEC, have actually implemented it yet. (Doumengue, IUCN ; pers. comm.)
-Protected forests : agriculturists are free to clear the forest (unless there are protected species or if there is obvious degradation or scarcity of forested land - art. 13).
In classifying the different categories of forests, the legislation does require that populations be consulted during the procedure, the ultimate decision being in the hands of the Prime Minister who issues a decree. Article 14 does actually also include the possibility of rights of use being authorized within a classified area under exceptional circumstances.
A draft proposal for the system of land tenure in terms of customary rights[73] :
A draft proposal and an outlin law have been put forward pertaining to agricultural land.
The outline law
Community rights are not identified (art. 25).
The inheritance of a title is regulated by the code de la famille (modern legislation) and not by customary law (art. 25), and yet the inheritance system is not adapted to it.
Since the land title is issued to him, the community's representative could take advantage of the opportunity and take it over for his own benefit (art. 6).
The procedure for issuing community titles is ignored (art. 6).
"Pre-existing" customary rights are restricted so as to avoid "contradictions and incompatiblity with absolute titles.
Establishing and guaranteeing customary rights is the result of the issue of land rights (art. 25).
Customary land law is dependent on local agents who relate to the administration on different levels (art. 28, 29 and 30).
The classification of land is in the hands of a committee for the survey and classification of land. The committee's authority, attributions and implementation being defined by law (art. 37).
The draft proposal pertaining to the system of land tenure :
Local agents and institutions for implementing the legislation are the village councils, the main activities of which concern land (art. 6). The council has a president (the village headman), one or several representatives of land-owners (designated by the sub-prefect after consulting the village headman), and the representative of the local section chief for rural development (art. 54).
The village land council is involved in all the stages of decision-making (art. 28).
Whenever rights are being contested in courts of law, village councils may intervene.
Land legislation
Law Ndeg.14/63, May 8th, 1963 defines the composition of land belonging to the State and the regulations that will determine the methods and directions for its management and alienation. Law Ndeg.15/63 defines land tenure and is completed by the Ordinances of September 30th and October 30th, 1970 (52. PR). (IUCN, 1988)
Forest legislation
Customary land rights do not provide an adequate legal basis for the ownership of land ; they only apply to private land belonging to the State and are regulated by decree (1987).
It is mainly Law Ndeg.1/82, July 22nd,1982, and the Ordinance Ndeg.000184/PR/MEF-CR, Decree Ndeg.000192/PR/MECCR, March 4th, 1987, that regulate the enjoyment of customary rights of use. Other decrees deal with fauna and flora. Besides, an ITTO report (1988)[74] gives information on two draft decrees that define the terms and conditions for developing classified forests and thus extend forest exploitation.
The traditional exploitation of the different categories of forest.
The legislation includes two types of forests : protected forests, and protected national forests.
Article 22 guarantees customary rights by ensuring that the exploitation of the forests immediately surrounding the villages is carried out by the villagers themselves : they have priority. Article 6 in the Decree adds that these rights may even be exercised inland with forest permits, without small-holders being able to ask for any form of compensation.
The exercise of customary rights of use are forbidden on classified national forests (Decree Ndeg.000192/PR/MEFCR, art. 5), except for collecting deadwood lying on the ground (id., art. 5).
The definition of rights of use of the inhabitants of a village are based as much as possible on the size of the population in question and the traditional area which they exploit. The boundaries of surrounding classified forests must therefore allow for the necessary space for the exercise of these rights (id., SS 5).
The importance of local interests is also taken into account in the legislation pertaining to the definition of national forests. Committees are made up of representatives of the interests of the State and of the local communities concerned (village headman, head of the canton, mayor - Decree Ndeg.000184/PR/MEFCR within Law 1/82, art. 2). They "proceed to define the boundaries of an area and the rights of use and other rights exercised within this area (id., art. 3). But forests that have been classified as belonging to the State can be withdrawn from the classification should it serve public interests (id., art.1). (IUCN, 1988)
The 1982 law does not include particular legislations pertaining to forest clearing. Only Decree Ndeg.00184/PR/MEFCR imposes that forests belonging to the State be cleared in parallel strips.
Traditional hunting is free for all members of a village community living a traditional way of life, though they may not have a hunting permit or licence as such (Law 1/82 art. 54, Decree art. 5) (Decree Ndeg.000192/PR/MEFCR art. 1).
However, hunting with drugs or poisoned baits (some of which are actually traditional) is forbidden (id., art. 52). Traditional hunting is restricted to providing for personal requirements and those of the community. Selling and bartering meat is forbidden outside the village community (id. art. 2). Traditional hunters may not kill more game than is allowed by the daily quotas (id., art. 11 and 6) : i.e. adult males of non-protected or partly protected species, no more than three mammals of the same species or four of different species within the same day (id., art. 5). "Article 45 allows for an interesting perspective in the management of hunting for local hunters. Local communities that are implementing such practical measures as would increase the faunistic capital on the land they exploit, witll be able to obtain the classification of the area in which they carry out this rational exploitation of the fauna ; the conditions of this classification being those that usually apply following the regulations." (IUCN, 1988). It is important to stress that there is no clear statement as to who should put forward these practical measures.
Animals that have been repeatedly destroying crops may be killed (Law 1/82, art. 61).
Populations were represented, after 1945 by the Organisation du Commandement National which had first a clan-, then a village-basis (on the Christol system). At present, it is a municipal system with chefs de canton et de groupement which represent village headmen.
There is a big disparity between on the one hand, the 31,53 % of forests which have been included in the area of human exploitation (Plan de zonage : a project for zoning part of southern Cameroon, 1992)[75], while on the other hand 43 % have been planned for forest exploitation. The division into zones which will deeply affect future regional development, is based on ecological and commercial criteria that completely ignore customary land law, whether that of swidden agriculturists or hunter-gatherers.
A new land and forest legislation is being put forward at present. The legal texts will no doubt be altered shortly.
Land legislation.
Land legislation in Cameroon is based on 15 texts published between 1974 and 1985, among which Ordinances Ndeg.74-1, 74-2 and 74-3, July 6th, 1974, deal with the system of land tenure, whether for individuals or the State, and with theexpropriation procedures ; Decree Ndeg.76-165, April 27th, 1976, deal with the conditions for obtaining land titles.
Land tenure in forested areas and customary ownership :
Three types of ownership[76] are recognized by law, among which the domaine national now applies to what used to be covered by customary ownership.
Customary property is based on the actual development of the land (according to art. 15 in Ord. 74-1) ; it is made up of :
1) Areas of residence, cultivation, plantations, grazing and travelling, activities which illustrate the definite hold that human societies have over land and their effective exploitation of it.
2) Land free of any form of occupation. It may be granted through concessions, leases or allocations (id. art. 17).
Forest legislation
Law Ndeg.81-13, November 27th,1981, defines forest areas and establishes a legal framework for the management of forest, faunistic and halieutic territories. Decree Ndeg.83-169, April 12th, 1983, deals with forest regulations ; Decree Ndeg. 83-170 with regulations pertaining to fauna. Law Ndeg.80-22 of the 4th July 1980 provides regulations for the protection of forests (including punishments for incursions on private land or land belonging to the State).
The category of <<national forest>> allows traditional communities to continue hunting and gathering as long as the land has not been precisely allocated by the State (Ord. 74-1 art. 17).
Traditional forest territories are not as protected as they are when belonging to the State : forest products of any nature which are to be found there belong to the State, unless they come from trees that were planted by individuals or a community (art. 21).
The buffer zone has still to appear (decree Ndeg.83-170). These buffer zones are protected by law in the same way as a park. They are not real buffer zones (they would then be referred to as transitional zones with a gradual transition from non-utilization to free utilization of land). In theory, only a few carefully controlled activities would be permitted (IUCN, 1988b). Indemnification of local populations has been provided for, should the creation of a park lead to them being resettled elsewhere (IUCN, 1988 : 32).
The traditional exploitation of various forest categories :
Nine types of national forests are recognized, three of which (prodution forests, protected forests and forests for regeneration) allow local populations to maintin their rights of use : they collect foodproducts and secondary forest products (raffia, palm, bamboo, rattan, firewood) (decree Ndeg.83/169 art. 3).
* Cultivation of land where it belongs to the State is restricted by
decree, Ndeg.76-166 (art. 4 and 5) : it requires procedures based on
consultation and it grants temporary concessions that may then be turned into
permanent concessions. Any natural or legal person hoping to develop land
belonging to the State that is neither occupied or exploited, must provide an
application that includes a development programme.
* A right of use for cultivation therefore only applies if the
legislation considers traditional forms of agriculture as a form of
development . Though opening up new land for agricultural exploitation
must be authorized before it is carried out, "the existing legislation does not
mention whether this applies to temporary and shifting cultivation". (IUCN,
1988).
* Permission from a national technical committee and local consultation are
required to obtain a forestry licence applying to national forests (the central
authorities-prefects-mayors-traditional headmen and notables) (Decree
Ndeg.83/169 art. 33).
Traditional hunting is allowed all over the country, except in protected areas.
The definition of traditional hunting is not based on the hunters food subsistence (as in the legislation in Gabon), but on the type of arms used (whether they be made with materials of plant origin, such as bows and arrows, and spears with poisoned tips) (Decree 83/170 art. 21). There do not seem to be any limitations (for season, techniques, type of game) except in the case of firearms (id. chap.II of the title and II) (IUCN, 1988)
Land legislation
The ownership of land is defined by both the code foncier and customary law which is included in written law.
Forest legislation
Forest legislation is defined by the law Ndeg.61/273, February 5th, 1962, which provided the basis for the Code forestier Centrafricain. Ordinance Ndeg.84-045, July 27th, 1984, applies to matters pertaining to the fauna and flora.
Traditional communities or individual holders enjoy their cusutomary rights to their full in these forests (art. 25).
"However, cultivation is restricted, article 28 forbidding the pulling up, felling or serious mutilating of shea and cola trees, rubber lianas and trees, roniers, oil palm." The holders of customary rights have a right to keep an eye on forest exploitation in this category of forest. The profits from the management of these forests is allocated to these same holders (art. 29).
"Bush fires are allowed if they aim at renewing pasture, preparing land for cultivation or cleaning settled areas and tracks". These fires may only be lit between November 15th and March first, in good weather, with permission from the customary headman, and with all the village's able-bodied men present at the scene.
Customary forests may change category, either through procedures for its classification as described in article 4 of the Code Forestier, or through the conditions described in Section 2 of the Code Foncier. (IUCN, 1988)
Traditional hunting for subsistence is permitted.
It therefore applies to those who do the hunting and the other members of the village community to whom the hunting territory belongs. It is forbidden to hunt. Animal species that are totally or partly protected (art. 37deg.. Weapons must be of local production and must not include using either firearms, poison, fire, pits or metallic or synthetic cables (art. 38). The Minister may supplement and regulate customary hunting." (IUCN, 1988)
[70] The right to forest, fauna and flora in the countries of Africa's tropical rainforest, in the context of the programme for the "Conservation and rational use of forest ecosystems in Central Africa".
[71] Source : Proposals for a reform of agricultural and land legislation. BRETON, J.M., 1992 (September). Réforme de la législation agro-foncière au Congo, Rapport intermédiaire, United Nations Organization for Food and Agriculture (Programme for techical cooperation, LEG : TCP/PRC/2252 (A) -) : Rome.
[72] This Ordinance still did not exist at the end of 1989, which leaves customary land laws in a confused and undetermined state (de MAHIEU & TSHAMALA KAZADI, 1950 : 55).
[73] Comments by Pierre BUCH, jurist, researcher at the Law Faculty of the Université Libre de Bruxelles.
[74] RIETBERGEN, S. (march). Preliminary report for the ITTO : Rainforest management for sustained production of timber, ITTO.
[75] CÔTÉ, S. (Poulin Theriault Inc. Canada), 1992 (november). Preliminary zoning project. Case of Southern Cameroon. Objectives and methodology. Ministry for the environment and forests of Cameroon, Republic of Cameroon.
[76] Property of the State and of government bodies - "domaine public" and "domaine privé" ; private ownership - based on title deeds - ; and costumary ownership.