I enter this debate cognizant of the emotive feelings discussions about land
evoke. People are blowing each other up in Palestine because of land, among
other things of course. You go around the world, you discover a number of
conflicts whose origins can be traced to disputes about land. I hope the
Gambia situation NEVER reaches such catastrophic proportions. I do not in
any way want to sound alarmist, but I am afraid that if people do not
approach this subject objectively, we run the risk of festering an
uncontrollable situation back home. At the end of the day, the solutions
that is going to be reached might not be the politically correct solution,
but I hope it is going to be the JUST solution for the ENTIRE Gambian
population. Like Ms. Joh opined, the fairness issue has to be addressed.
Tough choices lay ahead for the coming government. A caveat from my end at
the onset. I am trying to look forward and am motivated to write because of
the vital point raised by Mr. Sidi Sanneh about how our land tenure system
might impact investor confidence. I am not trying to address the justice of
the Taf Construction Case. I do not know enough about the case. But I hope I
am well-positioned to address the issue of fairness raised by Ms. Joh and
Mr. Sanneh's point.

In my opinion, after we gained independence from the British and decided
that we wanted to belong to one country, The Gambia, we became wedded to a
unit. Our little Kingdoms in the past became absorbed into this country
called The Gambia. Now, this does not mean that people's property rights
that existed before and during colonialism became null and void and absorbed
as well. People's land rights should have been addressed adequately
post-independence. To some extent, those rights have been addressed. But
here is where we have some murkiness because decision makers were and are
still trying to be politically correct. The issue of land tenure in Gambia
and West African countries like Nigeria is very complex, to say the least. I
do not profess to be anything close to an authority in this field. In that
spirit, I also respectfully counsel people that do not know enough about
this field to tread carefully and not be lead by emotions to  say things
they will regret later or say things that will just divide us and would not
provide meaningful solutions to the problem. If my recollection serves me
right, I remember that with all their jurists in Nigeria, few like the
storied Taslim Elias (Late World Court Judge) was brave enough to write a
thesis on the land tenure system in Nigeria and exhaustively articulated the
issue of Customary Land Tenure. I must tell you that his book could easily
rank as the most difficult book I have ever read.

Going back to Gambia. When we gained independence and decided to form one
country, we also adopted a set of rules to govern us. Among other things, we
drew a Constitution and also adopted English Common Law as our residuary
law. We also maintain some of our customs to govern certain aspects of life
like marriage, land tenure, inheritance etc. for the predominantly Muslim
population. The challenge we faced was to try and mesh our customs with the
common law and our Constitution and other Acts passed by Parliament. This is
by no means an easy task. Its difficulty is more pronounced in the Zoo we
have back home where mediocrity is the order of the day. We have politicians
that do not have the wherewithal or the integrity to do what is right in
this situation.

Since we are one country, the ideal situation would have been for all the
land to belong to the Government (the whole country). The government will in
turn lease out the land to private citizens in order to develop the land.
That would hopefully take care of our present predicament where people will
claim that their ancestors have customary title to the land and prevent
others with means from developing the land. Have we reached that state yet?
Absolutely not. According to our laws, the government has to compensate the
former owners of the land before it can acquire the land. This clearly
requires the setting up of a mechanism to determine who the former owners
are in the first place. Then we have to determine what is fair compensation
for them. That is the only legal way our government can usurp 'people's
lands'. Otherwise, the government will have to pass undemocratic and
draconian decrees and use force to acquire 'people's lands'.

The task ahead is how to acquire this land for the common good of the
Gambian people and at the same time adequately compensating people that have
legitimate claims to the land as we speak. I think the point raised by Mr.
Sanneh about Local Government Decentralization will go a long way to
alleviating this problem. As I mentioned here the other day, in Burkina Faso
(Gastions des Terriors) children as young as ten were used by experts to
demarcate the boundaries of villages. The reasoning there was that these
children will not be motivated by politics to claim land that do not belong
to them. Children go beyond the land used by their parents for farming
purposes in order to play and wonder around. Not that what the children say
would be definitive, but their estimation of the boundaries of their
community would most likely be less tainted than that of the adults in the
community. In short, we can learn from the Burkinabe experience and craft
ways of determining some of the Customary Ownership Rights on lands that has
not been acquired by the government as we speak. Once those rights have been
determined, government need not compensate the previous owners with cash in
order to bring that land into the regime currently governing land in Banjul
and Kombo St. Mary.

For instance government can agree to acquire adjacent land that has not been
claimed by the community (and NOT currently developed) and develop that land
in a way that the property values of neighboring lands will skyrocket. For
example, government can agree to build roads, hotels, power stations etc. in
a given area and regard that as compensation to the inhabitants of that area
in order to bring their lands within the confines of our contemporary laws
(as opposed to customary laws). Brufut is a good example. Clearly the
proximity of the TDA helped enhance property values in that area. The
government created that and not the former customary rulers. That could have
been used in negotiations with customary rulers to bring Brufut into the
'Leasehold System'. In short, Recognize the legitimate claims of the
inhabitants of Brufut. Give them 99 year leases. Acquire the lands around
Brufut that the villagers cannot lay legitimate claims on. Give that land to
Taf, who has the resources to 'develop' the place.

Of course for this system to work, we must have a visionary government that
people have confidence in. Brufut people for instance have to be assured
that legitimate claims will be honored by the government and converted to 99
year leases. People should also be assured that the government will allocate
the land it acquired on an equitable and uniformed basis. In other words,
Gambians that can develop the land will be given the land for a nominal fee.

If we want to attract foreign direct investment, we must, among other
things, tackle our land tenure problem. This haphazard system whereby we
have different authorities allocating land, need to stop. We should not have
the government allocating land in certain areas and Local Authorities
allocating land in other areas. We need a uniformed system whereby the
government is the sole owner of the land and is free to lease (rent) the
land out to citizens that can develop the land (not just by building on it,
but farming on it as well). In order to reach that stage, we have to tackle
head-on the legitimate claims of customary owners. We have to do that in an
equitable manner to benefit ALL Gambians. If we do not do that, but go ahead
and 'seize' people's lands willy-nilly, we are just postponing a problem. No
one wants to have a Zimbabwe situation in Gambia. Investors (both foreign
and local) do not want to develop a piece of land just to be told thirty
years down the line that others have legitimate claims to the land.

Our future government needs to address this situation together with Local
Government Decentralization and ensure that people are clear about who owns
what. This is a gigantic task that awaits our next government.
KB



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