El concepto de valor económico

The development of the 2005 LPF was facilitated by a technical committee and its final version was validated by the Government Council in May 2005. The 2005 LPF outlines the principles of the policy, which aims to ‘respond to a massive demand for securing tenure […] through the formalisation of non-written tenure rights and through the safeguard and regularisation of written tenure rights’ (Repoblikan’i Madagasikara 2005a). To achieve this objective, the policy is designed around four strategies:

1. restructuration, modernisation and digitalisation of land administration and archives (titles and topographical maps);

2. enhancement and decentralisation of land administration;

3. revision of regulations on land tenure; and

4. establishment of education and training programme for land professions.

Repoblikan’i Madagasikara (2005a)

The above framing entails that the state land service continues to operate in parallel with the new decentralised administration. Indeed, the state land service received funds for the improvement of its titling and cadastre operations. (Strategies 1 and 4) Although these are important activities, in this research I focus on the novelties of the policy (Strategies 2 and 3) that proposed revised concepts of tenure security, generated changes

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in approaches and practices of securing tenure, and caused shifts in power dynamics between social actors and institutions, all of which questioned the sole authority of the state land service over land.

The policy framing also entailed a spatial distinction. In fact, the state land service kept responsibility for urban areas where titles are issued, and the municipalities gained authority mainly in rural areas where certificates can also be allocated (World Bank 2006). The World Bank (2006) justified this spatial choice through economic rationalities:

A modernized Torrens system is most appropriate for urban and other areas of high-value land where land markets are fully developed, and the volume of transactions against which fees can be charged is significant enough to make the system affordable and sustainable. However, a lower cost system is needed for other areas.

The policy therefore provides, in the spirit of the existing practice of “petits papiers”, a new and less onerous system, more appropriate for the smallholders of very modest means for whom the current system is too slow and too costly.

(Executive summary) This statement resonates with the orthodox practices of securing tenure that seek clarity over rights where the value of land is the highest (Rose 1994) but also with the ‘pro-poor’ practices underlining low-cost and flexible solutions (Zevenbergen et al. 2013;

Enemark et al. 2014). This leads us to make a distinction between three approaches stratified based on the costs: titles, certificates and petits papiers. Hence, a ‘gradual’

system was introduced from the outset where three institutions with different legal and customary standing recognise and guarantee rights. I return to this in section 5.3.2.

The validation of the 2005 LPF was followed up by the drafting of a framework law (loi cadre 2005-019) that institutes state land and private property as the two possible status of land in Madagascar (Repoblikan’i Madagasikara 2005b; see Table 4.2). Private properties can be either titled properties governed by the state land service or non-titled private properties (PPNT – Propriété privée non titrée) governed by local (municipal or inter-communal) land offices.²² The policy-makers interviewed argue that the introduction of the legal status of PPNT is the main policy innovation. The lands falling under it can be registered by local land offices that allocate certificates and record changes to them (Repoblikan’i Madagasikara 2005a). The certificates are issued based

22 Local land offices are known as guichets fonciers in French and Birao Ifotony amin'ny Fananan-tany (BIF) in Malagasy.

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on the current occupation of lands through a process of local recognition (ibid.).²³ Furthermore, information on parcel delimitations, parcel identification numbers and right-holders are inserted in Geographic Information System-based (GIS) local land occupancy status maps (PLOF – Plans Locaux d’Occupation Foncière).

Table 4.2. New statuses of land

i. There are lands that are held by the state domain, decentralised authorities or other subjects of public law. These lands can be either public or private.

a. If public, they are inalienable and imprescriptible even though they might be registered. The state can provide 30 years concession rights on these lands.

b. If private, they can be sold, leased (until 90 years), exchanged etc. These lands include those that have not yet been appropriated or occupied.

ii. There are lands that are held by private people. These lands are either recognized by a title or held as a non-titled private property.

a. If titled property, the lands have gone through an individual or collective registration process. The state land service and its deconcentrated offices are responsible for the allocation and administration of the titles under the Torrens system. The titles are definitive and indefeasible. A new law providing the details on titled property is being discussed by the state land service (situation in 2017).

b. If non-titled private property (PPNT), the lands are being held ‘individually or collectively in a real, evident and permanent manner, and according to the uses of the moment and of the place, and according to the use of the land’

(Article 33, Loi 2005-019). The decentralised authorities are responsible for the allocation and administration of certificates on these lands. The certificates provide proof of ownership unless there is evidence to overturn them. The specificities of the PPNT are further outlined in a law published in 2006 (Loi 2006-031).

Source: Repoblikan’i Madagasikara (2005; Framework law 2005-019)

Several observations emerge from this framework law. First, it differentiates land that is appropriated and used from land that is not. These are legal categories of land, not necessarily identified on the ground. Second, a slight difference in legal value is created between the titles and certificates where the former is definitive and indefeasible while the latter can be rebutted with evidence (such as a title provided on the same land earlier on). Third, the law introduces two authorities, in addition to the customary ones, even though complementarities and collaboration between them are required: i) state land service and its deconcentrated offices responsible for the state domain and titled private property; and ii) decentralised institutions, mainly local land offices, responsible for the

23 Local recognition is a process that land administrators would call adjudication process (see Simpson 1976).

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PPNT. Thus, there is considerable room for interpretation on the appropriation and use of land, and the value of the certificate.