Évolution et Réformes Foncières de L'afrique Noire Francophone

Summary

Traditional African laws have up till now been little studied, because they are unwritten, adversely affected by the colonial experience, and seen through western categories. Before looking at African land law, one must sketch the main characteristics of African customary law generally—that it was oral; popular; intimately linked with the invisible world; based on the legal and social complementarity of individual and group; that it implied the interdependence of persons and things, and the reciprocity of rights and duties. Colonial contact emphasized the individual aspect at the expense of the community, thus provoking a reaction against individualism from many of the independent African states.

Customary land law in Africa operated against a supernatural background, and linked land and family. The first essential feature was that of lineage or family title to land; restriction of land rights within the lineage—“exo-intransmissibilité”, inalienability outside the family—corresponds to exogamy in the realm of marriage. The benefit of land confined within the lineage was periodically redistributed among its members through the law of succession, which was more precise in some societies than in others. The second main feature of customary land law was the role of the “land chief”, distinguishable from the political chief, who represented the first occupant of the land, and mediated between the occupiers and the spirit world through his control of land use. Colonial administrations largely neglected this functionary.