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Zaire National Land Law System
A national system of land law exists in Zaire. However,
it is
based on a legal dichotomy, and its system of land
registration is
reported to be highly ineffective and insecure. The
Zairian land
law system was established by national legislation and is
based
legally and in practice on the legacy of Belgian
colonialism as
well as the Zairian customary system of land tenure. The
European
principle of individual ownership of land was unknown in
Zaire's
indigenous system. Instead, historically, land was the
property of
a lineage or
descent group
(see Glossary). In this system,
a "land
chief" exercised authority over land allocation in a
village, and
cultivators held usufruct rights to the land, which was
farmed
through shifting cultivation.
This indigenous system was transformed by the colonial
legacy
of the Congo Free State (1885-1908) and the Belgian Congo
(1908-
60), during which the land law system was established to
favor the
exploitation of the country's natural resources by the
Belgian
authorities. "Vacant lands" were decreed to belong to the
state,
with the lands "occupied by the native population, under
the
authority of their chiefs" continuing to be governed by
the
customary laws and customs of the lineage groups. However,
the
notion of "vacant land" was never clearly defined, and in
practice
land that lay fallow was considered "vacant," even though
it was
meant to be used eventually by indigenous cultivators.
Moreover,
the state completely ignored hunting and gathering rights,
which
were well-defined and governed by customary law.
Another element in this system favoring the colonial
authorities was the introduction of land registration,
with any
lands coming under the state's domain ceasing to be
governed by
customary law and thus eligible to be granted by the state
to
individuals and enterprises. It was estimated that by
1944,
Europeans controlled approximately 12 million hectares of
land, out
of a total land area of 234 hectares in the Belgian Congo.
The colonial period's land law system remained in force
following independence in 1960, at which time four broad
categories
of land-holding existed: state-owned lands, lands owned by
individuals and companies, concessions, and lands occupied
by
indigenous populations covered by customary law. The newly
independent state now had to resolve inherent conflicts,
in
particular the status of preindependence lands controlled
by
foreign interests as well as lands controlled by Congolese
under
customary law, and the applicability of the land
registration
system in determining the rights of nationals.
The Bakajika Law, enacted in June 1966, was the first
in a
series of laws designed to ensure government control of
the land
and its riches. It gave ownership of all wealth above and
below the
ground to the state, thus ensuring that the government
could claim
all public mineral rights. On December 31, 1971, the
enactment of
a constitutional amendment and promulgation of a law
empowered the
state to repossess all rights to the land. In July 1973,
the
General Property Law was enacted to organize the country's
new land
law system. With the enactment of the 1971 and 1973 laws,
all lands
now belonged to the state, with individual land rights
derived from
either concessions by the state or indigenous customary
law. The
new laws did not abrogate preexisting customary land
rights, but
they left unclear the future concessionary status of these
lands.
Another problem confronting practical application of
these
early 1970s laws is the fact that very little privately
owned land
is registered in Zaire, causing tenure to be precarious.
Lack of
clear title prevents land from being offered as collateral
for a
loan and discourages individual farmers from making the
capital
investment in land improvement needed to raise output. The
situation is exacerbated both by the limited government
resources
available to embark on a large-scale land registration and
the
practice by concessionaires of bribing local officials to
postpone
indefinitely investigations of further development
activities on
the concession. Political interference has also obstructed
the
resolution of land disputes. The theft of documents and
files
relating to land disputes is another common practice. The
irresolution of these problems has led to an increase in
the number
of land disputes in Zaire.
Data as of December 1993
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