Dialogue on the Future of Africa!

May PEACE Prevail in Sierra Leone!
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The Sierra Leone Digest

In sponsoring the Sierra Leone Digest, the Center for Alternative Development Strategies (CADS) Sierra Leone aims to meet the need for a journal of significant thought and opinion on social, political, economic, cultural and development issues in Sierra Leone.

The digest of difference views represent the opinions of the contributing authors and does not necessarily reflect the center's
viewpoint or position.

The sponsorship of the Sierra Leone Digest by the Center is in line with its journalistic program to research and propound issues of developmental value to the Government and people of Sierra Leone, and foster interdependence and international cooperation, protect human rights and promote Sierra Leonean cultural interest and creative achievement in the world.

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The Land Tenure System in the Provinces
... An Anachronism
By Amadu Koroma
Mr. Koroma is CADS General Coordinator/Legal and Administrative Affairs. He holds a Bachelor of Arts degree from Fourah Bay College (1986) and a LLB from the Sierra Leone Law School (1994). He had also recently completed a 4-month course on Human Rights and related Issues at Columbia University in the United States (April 2001). He also runs
his private law practice in Freetown - Sierra Leone.

Among the many factors ear-marked as being responsible for Sierra Leone's inability to achieve sustainable agricultural development and food production, is the land tenure system in the provinces where incidentally ninety eight per cent of the land suitable for agriculture can be found. Mr. Koroma has therefore taken up this issue of land tenure in the provinces, helping to help us understand its implications and what needs to be done to improve the situation.

The issue of land tenure in the provinces has always been a subject of great controversy and heated debate at times heavily charged with emotion whenever it is brought up for discussion irrespective of the venue.

The fact that Sierra Leone after almost three decades of independence is still unable to produce sufficient food to feed its population of about four and half million people is a serious cause for concern and it should be a consideration that should occupy a priority position in any agenda for the economic advancement of Sierra Leone. The country's dependence on other nations for a regular supply of rice, the staple food, has seriously exposed the country to the whims and caprices of donor countries thus derogating its independence in a serious fashion.

Unfortunately, Sierra Leone is still clinging tenaciously to an outdated and retrogressive plural legal system in the provinces which is just another example of the numerous unfortunate legacies inherited from our colonial master.

In the western area, the colonial government imposed the system whereby anyone can own land absolutely. Even foreigners were allowed to do so. But after independence, as a result of legislation, only citizens of Sierra Leone can purchase land in the Western Area, foreigners are now not allowed to do so. The best interest in land a foreigner can now hold in the Western Area is a leasehold interest not exceeding ninety-nine years. In the provinces on the other hand only indigenous natives are allowed to purchase land.

Non-natives are not allowed to acquire absolute title to land or what is called in legal parlance the fee simple ownership. Fee Simple means an interest in land that confers on the owner absolute ownership to dispose of it by outright sale, lease, mortgage, gift or otherwise without impediment.

Diversity

Land in the provinces is primarily in the hands of the land-owning families or villages, townships, clans or chiefdoms. Each member of the family or clan, is entitled to a piece of land to farm but have no legal title to the land which he cannot sell, lease, mortgage or dispose of in any other way. The legislation which presently regulates the occupancy of land in the provinces by non-natives, the Provincial Land Act Cap. 122 of the Laws of Sierra Leone (formerly known as Protectorate Land ordinance of 1927 as extended by Ordinance 32 of 1933) defines a non-native as "Any person who is not entitled by customary law to right in land in the provinces".

From this definition, it is abundantly clear that for the purposes of land tenure in the provinces unless one is a native he cannot purchase land in the provinces - the best interest that non-native can have closer to a fee simple is a leasehold interest.

The above Act vested all land in the provinces in the Chiefdom Council who holds such land for and on behalf of the native community concerned. In this respect, the Chiefdom Council can rightly be referred to trustee for the native community. Unfortunately, for the purposes of CAP 122, the Creole community mostly resident in the Western Area are not regarded as natives, they are foreigners just like the Lebanese, Nigerians or Germans.

But even where the foreigner desires to acquire a leasehold interest in the provinces, the legal huddles that are placed on his way are legion. In the first place, he must get the assent of the Chiefdom Council.

Next, before he occupies the land, he must get the approval of the District Officer or else he will hold his title as a mere tenant at will. Also, his lease must not exceed fifty years, although he has an option to renew for a further twenty-one years. As if all these bottlenecks are not enough, the annual ground rent is subject to revision every seven years by the District Officer.

Although the Provincial Land Act does not prohibit the sale of land by a native to another native as for example between a Limba and a Mende or a Temne and a Kono, one cannot rightly say that at the conclusion of an outright sale, a fee simple interest in the real sense of the word, will pass from the vendor to the purchaser. To appreciate this fact, we only need to look at the Customary Law vis-à-vis land tenure which varies from one area to another. It must be emphasized that Customary Law form part of the recognized Laws of Sierra Leone.

In fact, section 76(1) of the Courts Act 1965 gives it legal effect. It will appear that absolute sale of land is only possible in the Southern and Eastern provinces amongst the Mendes, Konos, and Kissi. The only qualification is that the purchaser must be a native and every member of the family must give his or her consent before such conveyance can be valid. On the other hand, under Temne Customary Law in the North, a stranger can only purchase land and utilize it during his lifetime. After his death, his family would have to seek permission from the original owners to continue to work on it. Even Case Law have lend credence to this point. In the case of KARGBO V. KANU (1979/71) ALRSL Page 378, the High Court of Sierra Leone held that in Temne Customary Law, after the death of a stranger, the land reverted to the original owners and therefore, the son of the deceased, a Loko man had no right to claim ownership thereof.

As regards other forms of tenure in the Provinces, as for example, a tenant renting a house for a specific period, in such a case, it is the English Law which we have inherited from Britain that is applicable exclusively. This intermingling of Customary and English Law with respect to land in the provinces has been a rich source of confusion and uncertainty.

To conclude this part of the article, it will be profitable to mention briefly an interesting form of land ownership in the provinces. It frequently happens that a land-owning family will give some parts of its land to a stranger who has married a daughter of the family. Some of these strangers have occupied these land from time immemorial. But the position is that these strangers are still not regarded as the rightful owners of such land because the concept of prescription as exist in English Law has no place in Customary law. But as it happens in the case of FULLA V. KONDOWA the principles of equity in regard to fair dealing could be invoked by the stranger in his favor though his occupancy will not ripen to absolute ownership.

Serious Implications

From the above discussion, we can see that the present land tenure system in the provinces has serious implications. The most obvious today is the refusal of the commercial banks and other financial institutions to accept title deeds of land in the provinces as collateral security for loans because title to such land is uncertain. This has also discouraged potential foreign investors in the rural agrarian industry which is a pre-requisite for any developing nation like Sierra Leone. It also has a tendency of destroying the large scale use of mechanized agriculture that will boost agricultural productivity. The land tenure system in the provinces has also caused great confusion and misconceptions among lawyers, magistrates, and judges. Even leading scholars and erudite Barristers in Real Estate Property like Dr. Ade Renner Thomas, Edmond Labib Michael, Esq., Prof. Joko-Smart, to name but a few have admitted this. Perhaps, the most serious implication is that the land tenure system in the provinces has a tendency of breeding tribalism, rivalry, suspicion and tension between ethnic groups, a situation which is adverse to national development.

Current Trend

The current practice with regards to land holding in the provinces is a source of hope, for a brighter future. Now land owning families have successfully concluded sale transactions in land with non-natives especially with Creoles and members of the Lebanese community. Over the recent years, strangers have been allowed to acquire interest in land that one can be correct to say that they have become absolute owners of thereof. They have developed such acquired lands to such extent that, and manipulated them in such a way that in practice, their interest have become absolute. For instance, they can readily dispose of their acquired piece of land without prior consultation with the Paramount Chief or the original owners.

This is the situation now prevailing especially in the big towns such as Makeni, Bo, Kenema, port Loko to name a few.

The Need for Reform

The theory of native ownership of land in the provinces has been jealously guarded from time immemorial and rigidly acknowledged by the colonial government of Sierra Leone. Perhaps a possible explanation for this was the apprehension entertained by the colonial government by then that if the rural people - poor, illiterate and backward are left unprotected of their only source of livelihood, the land, they will be invaded by their fortunate counterparts in the colony and in no time they will be lured into dispossession by the wealthy Creole, Lebanese and Syrian merchants.

If this situation is allowed to exist, it will trigger the mass exodus of rural peasants to the urban areas and consequently cause depopulation of the rural areas, increase the poverty and marginalization of the rural folk; disintegration of rural communities and perhaps more importantly aggravate the existing antagonism between the hinterland and the colony. Because of these fears, even at present, the socio-economic and political tendencies of the subject has compelled governments to take a neutral stand hoping that events will take a natural turn as it happened in England where a few hundreds years ago, all land belonged to the King. But as time went on individuals were allowed to acquire interest in land and today it cannot be said that in practice that all land in England is owned by the Queen.

But perhaps one thing that needs to be done is the promulgation of a uniform legislation for land holding in both Western Area and the provinces, and to ensure that proper surveying of all lands in the provinces and the proper registration of the title deeds to such lands as it operates in England as opposed to registration of instruments as exist in Sierra Leone, a situation which has been a fertile source of confusion and incessant dispute among land owners. It must be appreciated that this kind of progressive reform may likely provoke pervasive response from traditional rulers as it will greatly reduce their power and influence over their subjects.

Whatever the feelings from any quarter, it is high time we realize the need for a change because it is only freehold tenure that will encourage and raise competition on the available land among potential users which will automatically raise the overall agricultural productivity.

Balancing the Budget or Unbalancing Human Lives: Structural Adjustment in Africa - An Analysis
An article on IMF and World Bank structural adjustment programs in Africa. It gives a theoretical and historical background to stuctural adjustment in Africa -- Joe A.D. Alie, Phd. Department of History, Fourah Bay College (USL) was commissioned by CADS Sierra Leone to write this article for the Sierra Leone Digest: Published, August 1994.

An Interview With Dr. James Jonah -- Chairman, Interim National Electoral Commission (INEC)
As the date scheduled by the NPRC regime to return Sierra Leone to democratic civilian rule drew closer, increased attention was being focused on INEC, the body on which so much depended to transform that objective to reality. Read what the head of INEC then, Dr. James Jonah, told the Sierra Leone Digest -- August 1994.

University Unwanted!
The Center for Alternative Development Strategies (CADS) Sierra Leone, through its journalistic program (the Sierra Leone Digest) now endeavors to encourage erudite scholars to come up with concrete recommendations to help restore the integrity of a once respectable institution of higher learning on the West Coast of Africa. In this article, Elvis Gbanabom Hallowell presents a critical diagnosis of the University of Sierra Leone.

To Know More About Our Programs, Send Us an Email at: CadsIntlPrograms@aol.com or Call Our CADS Global Network -- USA Office at:
1-720-351-5520 or Our CADS Sierra Leone Headquarters at (232 22) 224839.