Legal experts Stéphane Brabant and Gisèle Dutheuil make the case for using digital land registry to secure land transactions in Africa
Is the African agricultural world on the cusp of an enormous transformation? The sector still employs over 60% of the continent's population, yet one of its primary characteristics is low productivity. Africa is the last continent not to have experienced a "green revolution", i.e. a leap in agricultural productivity that triggers food self-sufficiency and emancipates tens or even hundreds of millions of poor farmers. The stakes are high, as any genuine economic development is predicated on increased rural prosperity.
One reason the green revolution has not yet come to Africa: 60% of rural land is governed by customary law, yet the green revolution heavily depends on rural land ownership. The lack of formal land rights acts as a brake on investment in the agricultural sector. Trades, sales, leases, all more or less formal, are a risky business. Fraud is rampant, and far too often land is bought on the cheap on less than transparent terms. The lack of political will, daunting costs, interminable and complex administrative procedures, conflicts between customary and substantive law – the list of obstacles to establishing formal rural land rights is a long one.
Yet in this field as in so many others, Africa could benefit from the latest technological innovations. A simple GPS can already record traditional knowledge of the borders of family land. From this information, village maps can be created locally using free mapping software. Then an ordinary smartphone equipped with a scanning application can create a digital archive of this land data saved using free cloud storage.
But this is not enough. When we speak of secure agricultural investment in Africa, often only the title to land is mentioned. This may apply for many foreign investors, but more broadly speaking this is to ignore the context – the vast majority of "farming entrepreneurs" are African, and either tenants or good faith occupants rather than owners, traditionally understood as those who hold title to the land. To secure the investments of African farmers, then, a focus on contractual tools is essential.
In addition to the "traditional" methods of storing data, blockchain technology can offer considerable support to establishing more credible land transactions, because with blockchain archival storage is secure and all the changes made to an archived document are fully traceable. The objective here is to make customary ownership certificates and leases over rural land secure.
This secure basis for transactions using blockchain is likely to encourage investment and win the trust of banks. It is the solution Rwanda has opted to use for archiving its land registry data nationally. In Ghana, where access to land ownership is costly and complex, the Bitland initiative is enabling owners to record their plots in a register saved and secured through blockchain. The technology can help Africa move forward on the long road from customary to modern law with more serenity.
One question remains, however: how can we make sure the information saved in the chain is reliable? We believe that blockchain is particularly well-suited to the African context because it offers a way of overcoming the administrative failings that have so far made the problem worse. Block chain is a bottom up tool for securing data that can be used to clarify rights, assist traditional courts and government offices in managing land disputes, and offer protection from land grabs. Naturally notaires remain an obvious source of security in the property sector, mainly for changes of ownership. But the basic land data archived through blockchain could make their work easier.
In addition, the 40% of rural land currently registered in Africa was registered based on traditional knowledge of land borders held by the "living land record" represented by traditional chiefs. This is the knowledge that can be recorded and secured through blockchain technology. Given that administrative registration procedures are too expensive for most African farmers, for the remaining 60% of rural land the choice is often between blockchain or nothing.
The 2030 and 2063 Agendas [adopted by the UN and the African Union] treat agriculture as the basis for inclusive, sustainable development. As the continent spends several tens of billions of dollars each year importing food, the question of secure access to land is an essential one. It seems clear to us today that new technologies can break down one of the barriers to a green revolution in Africa.
Stéphane Brabant is a partner and co-head of the Africa group at Herbert Smith Freehills.
Gisèle Dutheuil is director of the think tank Audace Institut Afrique.
This article was first published in Le Monde on October 12th 2018
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© Herbert Smith Freehills 2018