Valor económico del agua para irrigación: modelo de programación lineal

The Minister of Agriculture Harison was receptive to the pre-policy observations and problem framings brought forward by CSOs and technical experts. He spoke of having first sought remedies inside the state land service by closing the offices for a month to clear the backlogs, but this was not enough, and more comprehensive reform was required. He created a technical committee in the Ministry of Agriculture in 2004.

According to interviewees he gave carte blanche to this technical committee to conceive a land administration system that would reach the widest range of people with minimal costs.

This technical committee was composed of international and national experts, including the directors of the state land service and line Ministries. It held internal discussions and organised workshops and consultations through which it was open to locally-elected people, chiefs of regions, representatives of the Senate, National Assembly and farmers’

organisations (Teyssier et al. 2007). Nevertheless, as described by an international expert, the technical committee faced challenges in reaching a common conceptual understanding. For him, two schools of legal thinking opposed one another: one was in favour of private property with titles, while the other valued customary tenure rights, proposing certificates. The first group represented the prevailing titling system, while the second meant a conceptual change wherein locally legitimate rights to land were recognised legally by issuing certificates. The point here is that the basis for divergent conceptions and practices were materialised.

These divergencies are reflected in the principal policy objective of the 2005 LPF, which is formulated both around the safeguard and regularisation of written rights and the registration of unwritten rights (Repoblikan’i Madagasikara 2005a). The former directed technical approaches to the modernisation of the state land service and the latter initiated the registration of locally legitimate tenure rights by municipalities, based on the current appropriation and use of land. The latter was principally supported and stewarded by a handful of international and national experts outside the state land service. They wanted to go beyond the initial observations and ad hoc remedies proposed by the CSOs, previous development projects and Minister. They questioned the existing titling system

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that relied on the state land service. This is where approaches of decentralisation and certification materialised.

They [CSOs] had no solution. There was no technical solution, but they felt that the government was responsible to propose cheap titles, cheap cadastre. And they had financed little here and little there of participatory operations on state lands, but they had not thought of a change of paradigm, that is to say, to ensure that the registration of rights on land would not be the sole responsibility of the central state but also of decentralised bodies.

Interview with an international technical expert (GOVG001), 29.08.2016

5.2.1. Legal recognition of locally legitimate tenure rights

The policy innovation is part of a stream of thinking that foresees the legal recognition of locally legitimate tenure rights. It builds on the principles of the Gelose law that recognised local management rights, securing tenure (SFR, SFI and SFO) and the law on collective registration of land (loi 2003-029) (see section 4.1.3.). Furthermore, the notions of maîtrise foncier used by Le Roy and droit d’agir formulated by Rochegude inspired the policy (Teyssier et al. 2007).

Le Roy (2011) defines maîtrise foncier as the exercise of power and control over the use of land that in turn generates (management) responsibilities for the person who holds this power. He distinguishes different categories of control (minimal, priority, specialised, exclusive and absolute) that interact with the diverse bundles of rights (access, withdrawal, management, exclusion and alienation) of Schlager and Ostrom (1992). This model has been used in Madagascar in what Le Roy (2007 and 2011) calls the ‘patrimonial approach’ to the management of natural resources, where the multiple rights over natural resources are negotiated and mediated between the users and the statutory administration, and where natural resources as patrimonies have conservation, material, intellectual, cultural, and financial value, among others. These principles have been applied under the Gelose law.

Along similar lines, Rochegude (2005) explains that the concept of droit d’agir opposes rights on land (such as those allocated by a title where land becomes exclusive private property) to rights to do something on land, where the right makes sense of the utilitarian, symbolic, economic and social value of land. In Malagasy land policy, this is about the recognition of rights based on the appropriation and use of land. Indeed, the

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certificates take note of socially legitimate and pre-existing use rights, while the titles create rights (Comby 2011). Rochegude (2005) notes that droit d’agir targets social processes that are locally applied and legitimate, as well as accessible, indisputable and comprehensive for citizens in line with good governance. In the Malagasy policy, this is reflected by relying on local recognition commissions for validating the current appropriations and uses of land, and by ensuring that administrative processes are conducted close to people in an open manner.

The objective of the land policy has thus been to recognise social practices that exist on the ground rather than trying to adapt these practices to the requirements of the statutory law (Teyssier et al. 2007). These policy principles are expressed in the 2005 LPF:

The challenge of the land reform should thus be the reconciliation of the legitimacy of tenure practices of millions of local actors with the legality of regulatory texts of expensive and complicated application. It is about bringing closer the laws conceived at the central level, but little used at the local levels with generalized practices at the local level and make these recognised by public authorities.

Repoblikan’i Madagasikara (2005a)

The specificity of the Malagasy land policy consequently lies in the legal recognition of the locally legitimate appropriations and uses of land. It replaced the presumption of state domain with a presumption of land use. In interviews, the technical experts qualified this as the innovative and the revolutionary part of the policy. As one interviewee expressed it, the policy considers that a farmer who is using a piece of land has more rights to it than the state. Indeed, such pieces of land in the category of PPNT are protected by state-backed legal structures. Tenure security is then linked to a guarantee of being recognised and protected as the legal holder of land based on social legitimacy. This means that the policy engaged with the debate on legal plurality, reducing confusion emerging from situations where someone could have had state enforced rights (titles) on lands occupied by others under customary tenure systems (see Toulmin 2008; Lavigne Delville 2010).

5.2.2. Decentralisation and certification

Legal innovations were followed with international ideals on the registration of customary tenure rights by decentralised authorities (see Benjaminssen et al. 2008; Colin et al. 2009; Knight 2010; Rochegude 2011b) and through certification as a

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adapted approach (see Zevenbergen et al. 2013). The policy allocated land administration responsibilities to municipalities rather than holding everything within the state land service. This meant the opening of local land offices operating under the supervision of mayors and delivering certificates to farmers on demand.

The decentralisation of land administration is a key policy achievement mentioned in interviews with international and national technical experts. They see working with municipalities as viable options for administering, managing and securing land in line with international ideals.

Yes, so it was to find simpler solutions, cheaper, faster than the title, which is quite complicated with the state land service that is concentrated and not in all districts. It was complicated. Therefore, a decentralised system had to be found, hence the idea of giving municipalities the capacity to issue property certificates. That was the revolution.

Interview with an international technical expert (FTECHG004), 30.11.2016 The principles of equitability, efficiency and cost-effectiveness justified the decentralisation of land administration (Teyssier et al. 2007; Jacoby and Minten 2007).

The idea has been that the access to land is more equitable when handled locally, as there is social control through which people hold constituents accountable (Teyssier et al.

2007; Ribot et al. 2006). By being physically closer and having better access to information, local governments should also be able to understand and consider more profoundly the aspirations and needs of people (Droy et al. 2006; Ribot et al. 2006;

Bidou et al. 2008; Toulmin 2008). In turn, the administration of land is considered more efficient thanks to the proximity, inclusive procedures, simpler technological solutions and lower costs that are generally linked to decentralisation (Teyssier et al. 2007;

Toulmin 2008). Finally, the land administration should respond to principles of cost-effectiveness to be worthwhile (Jacoby and Minten 2007).

Responsibility for the registration of rights were decentralised through issuing certificates as legal proofs of ownership, guarantees of tenure security and means to increase investments, as described here by an international actor:

It meant that one was going to do the certification, one was going to make it accessible to many more people, one was going to do it nearby the municipalities etc. And that would lead to increased tenure security. And so obviously to an investment in land etc. I think that in the beginning one took this as an achievement, as achievement given in advance.

Interview with an international technical expert (ORGINT001), 19.09.2016

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Some technical experts highlighted the importance of having a state-registered paper proof of tenure rights. For them, oral knowledge, petits papiers or solely legal recognition were not enough. Rights had to be written down, identified on the ground and registered in national systems. Similarly, recording the names of women on the certificates together with those of their spouses was considered to enhance the position of women compared to a situation where only a legal prescription would exist.

I insist on having a paper. A paper. Now if you see in relation to the certificate, you can have collective certificates too. You can be part of it. That is a question of organisation within the community. But for me, what I insist is that the rights must be written. […] Does the woman know that she has hidden rights behind [rights mentioned in the law]. No, I say. You lawyers know that, but not the people, so you always have to write the woman's name next to it [write in certificates, next to spouse’s name].

Interview with a national technical expert (FTECHN001), 20.10.2016

A system of certification was consequently created. For Teyssier et al. (2009) it represented another novelty as it allowed the recognition and registration of private property without a title. It took inspiration from the petits papiers (Burnod, Andrianirina-Ratsialonana et al. 2014) by relying on the work of local recognition commissions and thus creating a link with local pre-existing practices. It also relates to international ideals of pro-poor registration of rights, based on simple low-cost administrative practices that can become more sophisticated with time (Zevenbergen et al. 2013). As expressed here by a local technical expert, the certification rendered the registration of rights more robust compared to petits papiers and more accessible, cheaper and quicker compared to titles.

On the other hand, the granting of a title is very slow so that during 100 years of existence the state land service could deliver only hundreds of titles. So, the state had to have a different vision, to decentralise and reduce the cost so that people could have a paper, that's the overall goal of the program. To regularise the petits papiers at the level of the farmers, once regularised one can consecrate them a right.

We want to give them a right, in the event of opposition or conflict or problem, at least they have that. That is the overall objective.

Interview with a local technical expert (ECOR002), 18.05.2016

Based on this analysis, I identify the legal innovations of recognising locally legitimate tenure rights, decentralisation and certification as the key elements of policy change and constitutive of the dominant policy narrative. Minister Harison, technical experts from outside of the state land service, members of the coordination unit, CSOs and donors have assembled around this narrative and stewarded it. Nevertheless, some differences

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exist in how tenure security is conceived, and it has also faced resistance from the state land service.