the code pastoral of the islamic republic of mauritania

Transcription

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THE CODE PASTORAL
OF THE ISLAMIC REPUBLIC OF MAURITANIA
RETURN TO THE SOURCES:
REVIVAL OF TRADITIONAL
NOMADS' RIGHTS TO COMMON PROPERTY RESOURCES.
Hans-Werner Wabnitz1
1
Dr.jur.Albert-Ludwig Universität, Freiburg/Brg; LL.M. Tulane,
New Orleans, LA; former Senior Counsel, Africa Division, Legal
Department of the International Bank for Reconstruction and
Development and International Development Association, Washington
DC, (World Bank), www.worldbank.org responsible for, inter alia,
Mauritania, Mali and Niger. Drafts have been discussed with staff of the
World Bank and Gesellschaft fuer technische Zusammenarbeit (GTZ),
the German development aid agency, Eschborn, www.gtz.de. A summary
has been presented to the International Symposium, Montpellier, France,
on May 17-19, 2006: “At the frontier of land issues: Social
embeddedness of rights and public policy”.
Contact: [email protected].
Mauritania Pastoral Code
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Electronic copy of this paper is available at: http://ssrn.com/abstract=906985
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INDEX
Abstract
I.
II.
III.
IV
V
VI
VII
VIII
IX
Annex:
Economic and Administrative Context
Economic context
Administrative context
Ownership v. Use rights
Overview of the Mauritanian Code pastoral
Objective of the Code
Pastoral resources – water, salt licks
Avoidance of conflict
The Code as best practice
Application of the Code – Prospects
Environmental regeneration fostered by the Code
In general
In particular
The desert’s seed bank
Migratory birds
Indigenous crocodiles
Compliance with International Conventions
Comparable Legal Developments in Sahelian Countries
The Malian Charte pastorale
The Code rural of Niger
Conclusion
The Sources of Muslim Law – a Short Definition of Sharia
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Electronic copy of this paper is available at: http://ssrn.com/abstract=906985
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Tradition is not to watch over ashes.
Tradition is keeping the flame alive.
Henry David Thoreau.
ABSTRACT
Herders are generally neglected by country- and donor
administrations, despite their economic importance: nomadic livestock
raising accounted for 75% of Mauritania’s agricultural output, but
received only 10% agricultural budget and donor support in the 1990’s.
In the past there were few specific regulatory protections of nomadic
economic activities.
This paper outlines the content and impact of the Code Pastoral
(2000, effective 2004) of the Islamic Republic of Mauritania
(Mauritania) and qualifies the law as a prime example of adapted,
effective, legislature. The text recognizes the traditional common
property regime for nomads on pastoral lands, classified as public
domain (Art 9, 13), and validates use-rights, a shift from exclusive
ownership rights.
The law is pragmatic, having been drafted by herders themselves,
in defense against the increasing rangeland of farmers. It builds on
traditional rules and Islamic law (sharia, see Annex). Thus the right to
mobility (Art. 10) and access to pastoral resources (Art. 11) have priority.
The motives of the legislation declare nomadism “comme vecteur d’un
systeme de valeur culturelle”.
Clarity characterizes the Code. The 46 short articles define its
objective, legal and customary notions, lay down basic principles and
rights and provide for realistic, self-executory conflict resolution
procedures. Appeal to state tribunals is envisaged as last resort.
Herder’s associations and donors promote the “new-old”
legislation within the population through sketches, pictogrammes, poems
and songs. Early feed-back justifies a positive prognosis for its
application.
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La législation de la Mauritanie avant la mise en vigueur du Code
Pastoral ignore les spécificités du pastoralisme: le code forestier fut copié
des pays tropicaux, le droit foncier reproduit la propriété exclusive du
droit romain. Ces règles ne sont pas applicables à l’élevage. Situation
d’autant plus étonnante si on sait que le pastoralisme représente plus de
75% de la richesse agricole mauritanienne.
Les pasteurs se sont donc associés pour mieux défendre leurs
droits contre l’envahissement constant par les paysans de l’espace
pastoral et ont formulé « leur » Code Pastoral. C’est ce Code qui est
expliqué dans cet article.
Le texte frappe par sa clarté, brièveté et par la beauté du langage.
En seulement 46 paragraphes le Code clarifie son objectif, définit des
principes de base et réglemente la solution des conflits – prévoyant le
recours aux tribunaux comme ultime ressort.
Le Code peut se passer de solutions détaillées, puisqu’il peut se
référer a des procédures connues des pasteurs, comme les priorités
d’accès à l’eau et les dédommagements, qui sont « inscrites » dans la
tradition et dans le droit Islamique. Par l’introduction de la médiation et
de l’arbitrage, le Code compte sur la pression sociale pour garantir son
exécution, au lieu de dépendre du pouvoir de l’état (absent), car ce que la
population reconnaît comme “juste et bon” est devenu droit. Le Décret
d’application prévoit des conventions locales autorisant des accords
villageois sur l’utilisation de l’espace.
La dissémination du Code sous forme de poème et de
pictogramme familiarise les populations avec les anciennes règles
devenues droit. Le Code fut approuvé par le Parlement en 2000, publié
en 2002, et son Décret d’application fut publié en 2004.
I. THE ECONOMIC AND ADMINISTRATIVE CONTEXT
THE ECONOMIC CONTEXT.
Agriculture represents up to 30 % of GDP for Sahelian countries
and income for a majority of the population. About 75% of agricultural
activities involve livestock raising. In Mauritania, the figures were 27 %
and 71%, respectively in 1996. In comparison, mining contributed 1%
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less to GDP: 18 % versus 19%2. Even so, livestock raising received far
less funds by donors and government than sedentary agriculture 3.
The Code is the first law regulating nomadic livestock raising in
Mauritania. This is remarkable, because "the pastoral system"4, based on
mobility (regular east-west movements and annual north-south migration,
la transhumance5) constitutes the economic activity best adapted to arid
areas. Only mobility enables the exploitation of scarce, widely scattered
and shifting water resources, grazing grounds and salt licks. Mobility
ensures the sustainability of cattle production while preserving the
ecosystem.
THE ADMINISTRATIVE CONTEXT.
Traditionally, nomads were the ruling elite in the territory now
2
Mauritanian Office National de la Statistique (ONS) - as
reported by E. Boehnert and Ould Khtour D. (1999, unpublished).
Substantial stakes in gold and diamond fields in the north of the country,
and especially oil discovery off-shore of Chingetty, have changed the
relative economic weight of activities recently.
3
The World Bank funded agriculture with approx. 150 million
USD over the last 30 years. Of five credits, only one was dedicated to
herders, disbursing only about 10 million USD. Recently herders
received more attention, see: J. Hall and Le Gall, F: WEST AFRICAN
PILOT PASTORAL PROGRAM (WAPPP): PROGRAM ACHIEVEMENTS AND
FOLLOW-UP (1997) :
http://www.pppoa.org (last visited Nov. 2006)
4
Defined by A. M. Bonfiglioli in: "AGRO-PASTORALISM IN CHAD AS A
STRATEGY FOR SURVIVAL", World Bank Technical Paper Nr. 214
(1993), box 4 page 29, as: "The pastoral system is an economic
production system based on the herd, […] considered as capital, an
element of wealth, and as a factor of production…susceptible to produce
revenue. At the heart of this system the pastors search for strategies to
satisfy, in an unstable environment, a minimization of risk objectives
[...]"
5
“transhumance” was defined in an earlier draft of the Code as: “la
‘transhumance’ est le mouvement cyclique et saisonnier des animaux en
vue de l’exploitation des ressources pastorales d’un territoire donnée “.
(Art.3, alinéa 4, version 1998); see also the definition in the Mali Charte
pastorale, fn 70, see fn 16 at the end and page 14.
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known as Mauritania. Livestock, notably camels, were the backbone of
the region’s survival. The nomads’ culture evolved around the herd.
Rainfall, finding grazing grounds and watering places dominated life.
The arrival of the French changed this. A sedentary colonial
power, the French administration distrusted nomads because they are
difficult to identify, let alone to tax, they cherish freedom and are
quarrelsome.
The Mauritanian administration has inherited this attitude of
distrust.6 Neglect of herder’s interests has been further aggravated by
misguided donor intervention. Donors funnel their money through the
sedentary administration. Encroachment of planters into range-land areas,
unsuitable for rainfed agriculture, was the consequence. This trend is
responsible for substantial productivity loss 7.
6
See G. Conac, LE DEVELOPPEMENT ADMINISTRATIF DES ETATS
D'AFRIQUE NOIRE, in: G. Conac (editor) Les Institutions Administratives
Des Etats Francophones d'Afrique Noire, Paris, (1979) p. X: "Les
systèmes administratifs coloniaux obéissaient tous à une logique de la
domination. Il s'agissait avant tout d'assurer la sovereignité de l'Etat
colonisateur. Visant le maintien de l'ordre public et de la défense des
intérêts métropolitains, ces administrations étaient par nature
autoritaires". Conac continues to describe that the independent
governments adoted the institutions and regulations of the colonial
power, fearing otherwise desegregation (p. XV, XXX); this assessment is
shared by A. Daddah, LA MAURITANIE EN PANNE DE MODERNISATION,
Revue Internationale Des Sciences Administratives (1997) p. 199
sequitur: "La greffe institutionnelle opérée durant la phase coloniale et
au cours des premiers années d'indépendance s'est traduite par
l'émergence des traits partagés par nombre d'administrations africains.
Au plan endogène, notamment, la logique d'une administration
omnipotente et monopolisant la gestion des ressources nationales […] a
graduellement conduit à l'hypercentralisation […] de l'administration et
du pouvoir [...]" (p. 200).
7
H. E. Dregne and Chou, N. T. GLOBAL DESERTIFICATION
DIMENSION AND COSTS, in DEGRADATION AND RESTORATION OF ARID
LANDS (H. E. Dregne ed., (1992)) quoted in: Dryland Degradation and
Poverty, contribution by S. J. Scherr, University of Maryland, to the
World Bank sponsored Round Table "DRYLANDS, POVERTY AND
DEVELOPMENT”, June 15 and 16, 1999 in Washington, DC., Summary of
Proceedings, edited Nov. 1999, page 69, 70. Scherr expressly renders
"conversion of rangelands to grain production" responsible for
accentuated land degradation.
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Until recently the literature on dryland agricultural development
ignored pastoralism. However, the value of nomadic livestock rising is
slowly being recognized, as they are using marginal resources and "turn
wasteland into food"8.
Established legal traditions also account for the neglect of
herders.
II. OWNERSHIP V. USE RIGHTS
Roman law formed the western mind as to the meaning of
“ownership”: an exclusive possession of a res, the right to do whatever
one pleases, including willful destruction, to the exclusion of everybody
else. This notion also applies to land. The “owner” may, at his sole
discretion, exclude third parties from the use of his land, even if he has
no need for the land himself. Such legal system serves agrarian societies
with sedentary farmers well. Intensive agriculture requires capital
investments and work, and therefore needs protection against strangers
harvesting fruits they have not sown.
Given the influence of the Roman law on the French Code
Napoleon of 1801, it is only natural that the French colonial power
imposed this legal system on Mauritania. Such an approach is ill-suited,
however, for a population following a nomadic lifestyle.
Nomadic use rights may be defined as “permission to use a
common resource intermittently.” The concept of exclusivity is
unknown. Whether the resource base stretches over a vast area and is
unstable (e.g. grazing areas) or whether it is fixed, (e.g. watering places
and salt licks) not one single person or clan is entitled to exclusive use of
it, because its accessibility may be critical for the survival of other users
and their herds. Exclusiveness is also not required for the effective use of
the resource. A given resource may be sparse, while being also abundant,
because scattered over a wide geographical area and renewable over
time, if used “reasonably”. The periodic nature of the resource makes it
abundant when it exists (following rains), but too scarce for survival of
8
A.-M. Frérot, "IMPACT DE LA RÉFORME FONCIÈRE SUR LA GESTION DE
L'ESPACE PASTORAL EN MAURITANIE" in Options méditerranéennes,
Série A: Séminaires méditerranéenes, # 32 (1996) p 39 sequitur; see also
E. Mwangi and Dorn S.: BITING THE BULLET: HOW TO SECURE ACCESS
TO DRYLAND RESOURCES FOR MULTIPLE USERS, CAPRI Working Paper
No. 47, (2006).
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anyone depending on its exclusive use alone (during draughts).
Nomadic use rights illustrate that property rights are power
relations between people. Each tribe may exploit specific grazing
grounds, possibly far apart, and which may differ according to season
and rainfall. However, several tribes may share the same watering station
for their livestock. “Access” therefore does not mean free access for all:
who is authorized is regulated by tradition and custom.9
A common property management regime, subject to well defined
rules of access, guarantees optimal resource use, a "fair" sharing of
exploitation, to enable regeneration, critical for survival. According to
the "property-rights-theory" of the 1960s, social controls over the use of
resources in short supply define such optimal regulation10 . These
controls are established by traditions embodied in the Muslim law sharia
via principles consistent with common sense and equitable burden
sharing. Necessity of survival and fear of transgressing a religious
prohibition enforce these rules.
The sharia recognizes five principles:11
9
The so-called “curse of the commons” therefore does not apply here.
10
D. W. Bromley and Cernea M.M: "THE MANAGEMENT OF COMMON
PROPERTY NATURAL RESOURCES" World Bank discussion Papers # 57
(1989), p.48,: “The Swiss summer pastures are "collectively owned" but
can hardly be described as degraded; this points to a fundamental issue
[…] the summer pastures of Switzerland are collectively owned precisely
because they are of low productivity […]. Notice that we did not say that
such pasture lands are of low productivity because they are collectively
owned. In other words: common management is the most appropriate
form of ownership for optimal efficiency in use.“ (emphasis mine).
11
As regards the relevance of sharia principles, some doubt may arise
due to the fact that the express reference to Islamic law in the June 14,
1999 (second to last) draft of the text (Objet, Art 1: La présente loi
portant code pastoral en République Islamique de Mauritanie, a pour
objet: 1: La définition, conformément a la Chaaria islamique et a ses
pratiques coutumières, les principes d’une gestion rationnelle de
l’espace pastoral mauritanien, de manière a y assurer la préservation et
la promotion du pastoralisme dans le cadre d’une évolution dynamique
du développement rural. 2: […]) and Art 16 (Le séjour des animaux dans
les espaces vitaux des agglomérations rurales telles que prévues par la
réglementation en viguer, est régi par la Chaaria.) has been omitted in
the first case, and replaced by loi in the second case in the final version
of the Code. However, upon request, the author has been told that these
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First, recognition of collective use rights to pastoral resources (le
caractère collectif et l'usage commun des ressources pastorales).12
Second, recognition of the protection of vital space around
villages (la protection de l'espace (et, en partant, des ressources)
are only formal editing changes and do not touch the substance.
Indeed, the applicability of sharia principles to all legal issues has
been set forth in the 1991 Constitution (Ordonnance, 91-022 (July 20,
1991, J.O edition speciale du 30 juillet 1991, amended June 25, 2006).
The Constitution is preceded by a recital which proclaims, inter alia,
:"[...] Considérant que la liberté, l’égalité et la dignité de l'Homme ne
peuvent être assurées que dans une société qui consacre la primauté de
droit, soucieux de créer les conditions durables d'une évolution sociale
harmonieuse, respectueuse des préceptes de l'Islam, seule source de
droit, et ouverte aux exigences du monde moderne, le peuple mauritanien
proclame, en particulier, la garantie intangible des droits et principe
suivants: … " (emphasis mine).
Also, the civil law refers to sharia as the final resource if specific
regulations are not found: Ordonnance Nr.: 89-126 du 14 septembre
1989, portant Code des Obligations et des Contrats, (J.O. édition
spéciale du 25 octobre 25, 1989, modifiée par loi No 2001.031 du 7
février 2001 (Ministère de la Justice, mars 2005) : Art.: 1179
(dispositions finales) : "Pour combler les lacunes de cette ordonnance, il
est fait référence au rite malékite. Pour lever toute équivoque dans la
version française de ce texte, la version arabe fait foi." (the latter
stipulation complies with Art. 6 of the Constitution (2006, unchanged
from 1991) “la langue officielle est l’Arabe”.
See also Art.: 455, final article of chapter iv , on evidence by witness:
“Pour tout ce qui n’est pas été prévu dans ce chapitre, il est fait
référence au rite Malékite (sic)”. This clause serves as interpretation to
articles 451 – 454, which regulate the validity of a witness pursuant to his
“honorabilité” – which, under Islamic law, might exclude the witness of
women.
12
Hadith by the Prophet Mohammed: water, pastures and fire are
collective property (fire meaning firewood) “Les gens sont associés à
trois choses: l’eau, le fourrage et le feu”, Abu Dawud Ibn Majah and Al
Khallal, in: Verset Coraniques, Hadiths et Extraits des Conventions
Internationales
Relatives
a
l’Environnement,
Ministère
du
Développement Rural et de l’Environnement, Mauritanie, compiled by
C. A. Ould Cheikh, Mint Die L, Fichter J. & Thies F.D.(2006). Hadith
means a saying of the Prophet Mohammed and is considered a source of
law (see Annex).
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vital(es) de la cité - Hima. Nomadic camps must not be installed in this
zone.
Third, prevention of damages to planted fields by stray livestock.
Fourth, the right of a nomadic herder during the annual migration
(transhumance) to spend three nights within the vital space of villages,
an exception to the rule which protects the Hima.
Fifth, joint responsibility of herder and farmer to exercise
vigilance in the protection of livestock and crops.
State law regulating natural resources such as land, forest and
water in Mauritania followed the rules of exclusive ownership,
disregarding the time-honored customary and sharia principles, resulting
in hardships for the herder.
Access to land by traditional use rights was de facto and de lege
confiscated by the state in favor of exclusive ownership. The central
authority thus intended to demonstrate its power by redistributing land to
sedentary farmers. Since the state appeared as the source of rights, these
were derivative rights, stripped of all cultural and religious content. It left
the space otherwise available to herders vulnerable to “trespassing” by
farmers through progressive encroachment of (unsustainable) fields into
grazing zones.
Forests are regulated by Mauritanian Law No 97-007 of January
20, 1997 (Code forestier). Article 32 prohibits livestock to enter such
recognized forest. This ban applies only to nomadic herders, because the
legislation allows exploitation by flocks of neighboring village
populations.
Water use is regulated in a more comprehensive and inclusive
manner. The Code d'eau (Ordonnance 85-144 of July 4, 1985) protects
access of everyone, not just herders, to surface waters by declaring them
public goods (domain public).13 Conversion to private property by decree
13
The conflict of interests between farmers using receding waters of
ephemeral lakes in the east of Mauritania (Hodh Al Gharbi) called
Tamourt, for flood recession agriculture, and nomads who water their
herds there gave rise to disputes among donor’ supported projects
(GIRNEM, funded by GTZ, and PGRNP, funded by the World Bank),
favoring, respectively, the herders or the farmers (the latter through
financing fences around the Tamourt “Goungel”). Eventually passages
for the herds were negotiated.
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is not excluded, however, and it is left to ministerial discretion to define
the limits of the public interest.
Recently initiatives to accommodate both, the interests of
nomadic herders and those of sedentary farmers have sprung up. Several
West African herder's associations created a representative association
(L’Union Inter-africaine des Organisations Professionnelles de
l’Elevage – (U.I.O.P.E.) formally constituted in December 1999 in
Nouakchott, Mauritania’s capital city. The drafting of appropriate
legislation is one of the objectives of this associative movement.
III. OVERVIEW OF THE MAURITANIAN CODE PASTORAL
The Mauritanian Code Pastoral reflects Mauritanian traditions.
The drafting was preceded by country-wide, in-depth appraisals of the
situation "in the field". Representatives of all interest groups concerned
were consulted. It is therefore supported by its’ stakeholders and
sponsored by the Ulema 14.
The Code is a well-written piece of legislation.15 It is short (46
two or three line articles), concise, easy to read and understand and well
structured. It reflects the drafters’ priorities: a clear policy outline upfront
and an emphasis on conflict avoidance. If conflicts do occur, a realistic
path is provided for their resolution. The intent to avoid armed conflict
prompted the legislation. It is an age-old issue16.
14
Ulema are the authorities of Muslim faith.
15
drafted by a team of Mauritanian herders, jurists and (Islamic law)
jurisconsults, well versed in French law and the sharia, advised by
technical experts. For the text see:
www.glin.gov or www.glin.mr (last visited Jan. 2007).
16
See the murder of the peasant Abel by the herder Cain in THE BIBEL,
1Mose4; see THE KORAN, Sourate 21, The Prophets (Al-Anbiyâ), verse
78: “And remember David and Salomon – [how it was] when both of
them gave judgment concerning the field into which some people’s sheep
had strayed by night and pastured therein, and [how] We bore witness to
their judgment”. (Translation by Muhammad Asad: The Message of the
Qur’an, Dar Al-Andalus, Gibraltar (1980)).
Cp. also the story in the film “Shane” (1953) by George Stevans
with Alan Ladd, and “Rio Bravo” (1959) by Howard Hawks with John
Wayne and Steve Martin, or “Lucky Luke - Les barbelés des prairies”
(Morris & Goscinny, 1967).
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THE OBJECTIVE OF THE CODE
The objective of the Code is a rational administration of the
Mauritanian grazing range (espace pastoral), strengthening herder’s
rights. The principal concepts and rights of herding are defined. Thus,
Art 10 stipulates the mobility of herders and access to pastoral resources.
Pastoralism is defined as livestock raising based on permanent or
seasonal mobility17, and herders are those keepers of livestock who
depend on mobility for reaching “pastoral resources”. These are defined
in Art 4 as water (above and below surface level), grass and tree or brush
grazing areas (pâturages herbacés ou aériens), and salt licks (les carriers
d’amersal et les terrains à lécher). Pastoral resources are common goods,
accrued to the nation18. The area in which these goods occur, l’espace
pastoral, defined in article 5, is public domain and reserved exclusively
for mobile livestock keeping19. The Code emphasizes this essential
On a more serious note, the war between Mauritania and Senegal,
or rather the civil-war-like killing of citizens of the respective other
country in the spring of 1989 was triggered by a violent conflict between
nomadic Mauritanian herders and Senegalese peasants on the banks of
the Senegal river in the vicinity of Bakel.
This incidence recalls the legislation of Sheikou Amadou, émir of
the Islamic state Dina, in the inland delta of the river Niger (1818 –
1864). The centerpiece of his code of 1821, also called Dina, establishes
the rules for the annual crossing of the river by Fulbe (Peuhls in French)
herds, militarily protected, into the pasture land of the (hostile) Bambara.
The calendar and the modalities are respected to this day (see: A.H. Ba
and Daget, J: L’EMPIRE PEUL DU MACINA (1818-1853) pp 64, 65, Paris,
premiere ed 1955; J. Pagot: ANIMAL PRODUCTION IN THE TROPICS, pp
446 sequitur (with pictures), Paris (1985)).
Local conventions, entered into between the transhumant and and
the population of his expected trajectory, regulary updated to reflect
shifting power relations, ease potential tensions (see: T.J. Basset and
Kone, M: GRAZING LANDS AND OPPORTUNISTIC MODELS: the political
ecology of herd mobility in northern Cote d’Ivoire, contribution to the
Montpellier
Symposium.
see
fn
1
www.mpl.ird.fr/colloque_foncier/Communications/Resumes.pdf
(last visited Nov. 2006).
17
Art 7, Art 3.
18
Art. 8 :”Le principe de la communauté des ressources est de droit” ;
Art 9 : « Les ressources pastorales […] appartiennent à la Nation,
[…] ».
19
Art. 5, 13. A close reading of the definition reveals, though, that the
12
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principle by stipulating expressly that any appropriation of pastoral
resources by an individual person or entity is illegal20.
This protection extends to necessary access-ways to a particular
resource21. Obviously, a particular resource, even though technically
common property, cannot be exploited by the public when access is
blocked by surrounding private property. Article 11 defines “access to
the resource” as a guaranty of free access for the herder and his animals –
special circumstances defined by law excepted. Article 6, furthermore,
protects this access right by a lien (servitude).
Anticipating the possibility of large scale development schemes,
the Code prohibits such public enterprises if they are likely to harm the
vital interests of the herders22.
The Code avoids the issue of expropriation against
compensation23 by simply attributing specific use rights to herders,
instead of ownership. Also, the articles conferring these use rights
expressly provide for their execution within “the limits of the law”24.
This precaution ought to forestall potential claims.
The Code thus creates a hybrid new right: neither full common
property- nor exclusive property right: it is a common property right
granted by the state through a law, distinct from mere recognition of a
pre-existing right, but based on and closely modeled after it, and created
in favor of a specific socio-economic group.
PASTORAL RESOURCES – WATER, SALT LICKS
Water is the most precious pastoral resource. Articles 21 through
27 regulate and protect access to water by livestock. The principle of free
editing process was not quite as smooth as would be desirable. Whereas
Art 5 defines l’espace pastoral pursuant to its functions, Art 17 of the
Implementation Decree opens the possibility of defining such area by
decree. Art 9 and 17 of the Decree allow for other legal restrictions
which may, however, not infringe on pastoralism. A sensible
interpretation overcomes such hurdles.
20
Art. 14: "toute forme d'appropriation exclusive de l'espace pastoral est
illégale".
21
Art 5 alinéa 2, Art. 6 , Art 11 and Art.15.
22
Art 12.
23
Constitution of 2006, Art.15
24
Art. 6, 7, 10, 11, 12.
13
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access to a water source is already established in Art. 4, where "les eaux
superficielles ou souterraines" are included in the definition of
"resources pastorales", free access to which is guaranteed by Art. 6 and
Art. 11. The Code defines in Article 24 places where water accumulates,
and which serve to water herds as being of utilité pastorale. Such utilité
pastorale occurs automatically by law. However, artificially created
watering points destined specifically for the use by herders
(infrastructures hydrauliques et points d'eau à vocation pastorale) have
to be declared as such by administrative act. Such water points may not
be physically altered by private works to impede herder's access25.
Private water hauling installations on public wells automatically
become public goods, guaranteeing access for herder's animals26.
The same policy of unrestricted access for livestock applies to salt
licks (carrières d’amersal). These may not be privately appropriated or
managed, (Art 27), built-over, or otherwise rendered inaccessible (Art
28) 27.
AVOIDANCE OF CONFLICT
The Code’s center piece is its chapter five: Gestion Des Conflits
Pastoraux comprising eleven articles (Art 33 - 44).
The Code strives to avoid potential conflicts between herders and
settlers, and conflicts among different groups of herders28, through
separation of the conflicting parties wherever possible. Should conflict
arise, it is to be settled through arbitration. Going to court is only ultima
ratio. (Art 39).
Avoiding conflict through separation:
The authorité administrative may regulate through Arrêté specific
uses in specific geographical areas. E.g. Article 33, allows for the
prohibition of planting in certain pastoral zones. Inversely, the
installation of campsites in proximity to agricultural zones may also be
forbidden (Art. 37). These regulations may also be enacted for certain
periods of the year. The Implementation Decree encourages local
25
Art. 25
Art.22
27
Accessibility to saltlicks is treated like accessibility to water due to a
Hadith : J’ai demandé au Prophète […] la concession de la mine de sel
de Maarib, qu’il m’accorda. Mais les gens dirent qu’elle est comme de
l’eau de la source. Il revint alors dur sa décision. Al Beyhaghi dans
SOUANE EL KOUBRA Tome 3, in Verset Coraniques […] fn 12.
28
Art. 44.
14
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conventions among the stakeholders to regulate land use (Art. 17).
Conflict avoidance through separating incompatible users is in
particular encouraged by articles 18 (authorizing the Hakim to regulate
by Arrêté the planting of fields or the establishment of camps,
respectively, also with only temporary force); 19 (regulating areas of
permanent installation through development plans), 20 (establishment of
villages in zones with potential for pastoral uses), 25 (regulating
activities in the proximity of watering points), and 29, (establishing rules
protecting salt licks).
If conflict does occur, however, it is to be resolved first through
negotiations among the parties (à l’amiable).29 Should these direct
negotiations not lead to settlement, the second step is the appeal to a
lower and, by the loosing party, to a higher arbitral commission
consisting of representatives of the parties and the administration closest
to the place of discord30. Only if both arbitrations fail, the third step
authorizes submission of the case to the local court (tribunal de
Moughata) 31
The arbitral commissions are small and designed to find
compromise. Each commission renders its verdict on the spot.
Compensation is to be granted to the aggrieved party by the other party
pursuant to article 37.
If the conflict does go to court, judgment is rendered within
fifteen days.
The local level commissions respect the principle of
decentralization. The speedy rendering of decisions mirrors the sharia
courts, which deliver judgment session tenante, and serves the parties’
interests for reestablishing peace. According to Elisabetta Grande:
"What matters is the group, and what is important is either peace within
the group or between one group and its neighbors. After all,… the legal
process is designed to re-establish social peace in order to prevent
feuds" 32.
The Mauritanian tradition of informal conflict resolution, based
29
Art. 33, first sentence.
Art. 35 through 38
31
Art. 39
32
E. Grande, ALTERNATIVE DISPUTE RESOLUTION, AFRICA AND THE
STRUCTURE OF LAW AND POWER: THE HORN IN CONTEXT; 1999 Journal
of African Law, pp. 43, 63.
30
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on moral persuasion rather than forced execution, embodied in the
Code’s rules, distinguishes between the following outcomes: 33
Itidhar: withdrawal of the complaint, and mutual exchange of
excuses;
T'arguiba: symbolic amends through praise of the injured party
and offering of gifts;
Sorba: collective excuse of the transgressor's clan through the
visit of an important delegation to the opposed party;
Tawid: indemnification in kind or through money.
Conflicts may also arise among herders themselves, because of
improperly installed campsites resulting in the commingling of livestock,
or the blockage of another herd’s access to their watering site. Such
conflicts are to be resolved by a separate commission pursuant to article
44, created ad hoc by local Arrêté.
The rules of conduct during transhumance, the period most likely
to generate conflict, are precisely established by tradition in Mauritania:
Lemrah specifies the roaming zone of the herd during the night
next to the tent of the herder/owner;
Metlag specifies the most direct access path for the livestock from
camp to the grazing ground in the morning, and its return in the evening.
This corridor has to remain open.
Elmessyah specifies the nocturnal grazing area.
Elmirad indicates the space between the camp and the water
source. No camp may be set up there.
Tradition requests from herders mutual respect, hospitality and
positive intervention to prevent conflicts. Every herder must install his
camp so that his animals, on their march to pastures and watering spots,
do not cross, commingle or otherwise interfere with the animals of
another camp.
At the water hole tradition also regulates use priorities. Human
needs are served first, (Rwaya or Kharza ); followed by needs of herds in
emergency situations. Next come cattle, then sheep and goats, finally
camels. In the case of watering holes installed by villagers, the same
sequence is followed, but with village needs’ taking priority. When two
herds arrive at the well at the same time, these rules apply, with the
needs of the herd that arrived first taking precedence over a herd arriving
33
These references to sharia and those following have been provided by
Isselmou Abdel Kader, member of the drafting committee for the Code,
to the author in Nouakchott in 1999.
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later.
The drafters of the Code had confidence in the adherence to
“their” law because of:
* predictability. The text clearly stipulates what rights are granted
to whom, while remaining flexible in addressing issues of conflict
through reliance on customary regulations, known to the population.
* simple institutions to implement, oversee and execute its
regulations. Execution is key to any law. Imported texts and court
systems generally prove to be a poor fit with local culture, tradition,
learning experience and budgetary resources, and therefore fail. By
allowing regress to court only as “last resource” the Code reduces this
risk.
The arbitration rules of the Code split responsibility for solving
conflict between the two existing centers of power: the state authority
(through its local representative), and the stakeholders themselves (the
litigants). Combined, they are obliged to compromise, thereby reducing
friction between locals and the central power. This system also tends to
guarantee the respect of established rules, since both sides limit each
other’s leeway in reinterpreting them.
The appropriate combination of content with adapted institutional
support characterizes the Code. It fosters the self regulating powers of
society by providing the space, flexibility, rules and institutions tailored
to their needs. The society can live by its own principles, and solve its
problems first from within - a “bottom-up” approach. State authority only
assures the respect of the rules. It does not impose new foreign
obligations, or unfamiliar institutions to which the victim has to resort in
order to right a perceived wrong. The Code thus embodies a concept
phrased by Stephen Cornell and Joseph Kalt 34, that institutions only
work, when the system of power sharing and power generation provided
therein closely corresponds to the inherent traditional understanding of
34
S. Cornell and Kalt J. P., (Professors at the University of Arizona and
Harvard, respectively): "WHERE'S THE GLUE ? INSTITUTIONAL BASES OF
AMERICAN INDIAN ECONOMIC DEVELOPMENT" (presentation at the
World Bank spring 2000). See by the same authors: SOVEREIGNTY AND
NATION BUILDING: THE DEVELOPMENT CHALLENGE IN INDIAN
COUNTRY TODAY; Joint Occasional Papers on Native Affairs No 2002-
03; Native Nations Institute / The Harvard Project on American Indian
Economic
Development:
www.jopna.net/pubs/JOPNA03_sovereignty.pdf (last visited Nov. 2006)
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what is considered "the norm". "They key lies in culture: it is only the
implicit and informal contracts of culture that stand out as the metaenforcers of a society's mechanism of control and organization" [...]
"Cultural norms are the glue that holds a society's formal and informal
institutions of social control and organization together" … "successful
tribes have institutions that not only provide a match between cultural
norms and formal structures; they are also adequate to the task at
hand"35.
Thus the perceived weakness of the Code, namely that the content
of rules of behavior underlying judgment in the arbitration procedure are
not expressly spelled out, really constitutes its strength. Through reliance
on traditional knowledge, comprising culture and sharia, the drafters
have combined content regulation with an institutional framework apt to
enforce this regulation, acceptable in the cultural environment of its
applicability. This approach marks the Code’s difference from the
existing legislation. Ordinarily legislation follows "the simplifying logic
of the state shared by colonial and post-colonial leading elites…, (and
falls victim to) the illusion …that enactments are the law, and that an
enactment backed by the power of the state is enough to solve problems
…."36
However, the Code not only captures existing custom, regulations
and law. It carries them forward through inclusion within a coherent and
binding form. It gives tradition structure and life, respecting the wisdom
that, "in a traditional, very highly structured society…behavior cannot be
modified except within the framework of already existing conventional
social constraints".37
The Code embodies another, almost revolutionary, notion: that
different regulatory principles may be applicable to the same issue in
different localities within the national territory. The colonial doctrine,
adopted by the successor state, holds, that an issue has to be regulated
uniformly across the entire national territory. Land- or water rights and
obligations would have to be the same for everyone. This does not suit
issues of land use where ecological situations differ widely (highly
35
pages 10, 16 and. 22, respectively, of the paper delivered at the World
Bank, preceding fn.
36
E. Grande: supra, Fn 32, at p. 64; Cp. C. Levi-Strauss, TRISTES
TROPIQUES: “Chez les muselmans comme chez nous, j' observe la même
attitude livresque, le même esprit utopique et cette même conviction
obstinée, qu'il suffit de trancher les problèmes sur le papier pour en être
débarrassé aussitôt. »
37
A. M. Bonfiglioli, supra, fn. 4, page v, speaking of the "Sahelian
agropastoralists in Chad". I would like to add "and cultural
conditioning".
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valuable oasis- and irrigated lands, shifting rainfed pastures, dryland and
desert) and strong traditional attachment to land persists, deeply
embedded in customary and religious beliefs, which vary pursuant to
ethnic affiliation.
Uniformity of law creates benefits only when the law attaches to
identical facts, and is backed by strong executory force (effective courts).
This is not the case in Mauritania. By applying different rules tailored to
different circumstances, the Code, accomplishes an eminently sensible
thing. It adapts the law to reality. 38
IV. THE CODE AS BEST PRACTICE
The Code may be considered “best practice” in legal writing
because of:
1) normal language, following the Hadith of the Prophet
Mohammed: “always speak to the people in such a way that they can
understand you”39;
2) short and precise articles;
3) clear structure: policy choices are set out first, definitions of
notions with traditional/legal context are provided, and implementation
arrangements are all organized in logical sequence;
4) content is culturally embedded in the society's tradition (as
opposed to an imported ideology);
5) fair balance of interests of competing parties - nomadic herders
versus sedentary farmers;
6) simple, context adapted institutions that take advantage of
existing facilities and personal already on site. There is no need for
additional equipment, works, training or funds.
V. APPLICATION OF THE CODE - PROSPECTS
38
The Code only applies to areas qualified as espace pastoral, hence
not to oasis’ or irrigated areas.
39
Amadou Hampate´Bâ: "VIE ET ENSEIGMENT DE TIERNO BOKAR, Ed.
Seuil, Paris (1980) p. 127.
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The Code has been ratified following six months of discussion in
the National Assembly and the Senate 40 on the 26th of July 2000 and was
published on the 15th of July 2003. 41 The implementation decree
considered necessary for application42 was published on March 16th 2004
43
.
Official implementation started only in mid-2004. GTZ and
World Bank funded projects integrate its content into their projects and
actively promote knowledge about the law through sketches,
pictogram’s, community gatherings and other appropriate interventions.44
However, this may entail a long process, as a 2005 report by
PADEL/ICARDA45 reveals. The flipside of reliance on tradition is, that
also newly developed habits are given room, namely that the population
does not apprehend any new legislation unless it is brought to their
doorstep through ateliers, workshops and training sessions, and the local
authorities, expecting per diems, react likewise. As the authorities are
either not inclined to promote the Code or lack the funds and logistics to
do so, dependence on donor-funded project work will cause some time to
pass before full awareness and application.
But the innovative feature of expressly authorizing local
conventions on land use, with force against the administration, (Art 17
40
Such debate is unusual in Mauritania and demonstrates the
heightened interest the parliamentarians took in the text.
41
Following intervention by the World Bank.
42
This interpretation is not shared by the author, but also held by a
majority of French lawyers.
43
Following pressure by the World Bank.
44
Programme ProGRN “Natural Resources Management”
www.eco-consult.com/glc/ (visited Jqan 2007) in the regions
Guidimagha and Hodh el Gharbi, (the successor project to GIRNEM,
“Projet de Gestion des Ressources Naturelles de l’est de la Mauritanie”,
which closed in 2004); World Bank project « Community based
watershed management project” (2005).
45
C. Dutily-Diane and El Mourid M.: IMPLEMENTATION OF THE
PASTORAL CODE: towards the emergence of a local convention,
Ministère du Développement Rural et de l’Environnement, Mauritania /
PADEL / ICARDA (December 2005).
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Decree46) stipulated by the Implementation Decree might promote faster
adoption: Art 18 even exhorts the administration to encourage (favoriser)
the emergence of such conventions. Donors rely on this tool to promote
awareness of the Code and implementation of their community-based
projects47.
Sustainable natural resource exploitation has to start at the
community level. Changes result from “[…] conservation practices and
investments, and collective action”, says Sara Scheer48, in particular
when they entail consciously embracing traditional behavior. The Code
heeds this recommendation.
The Decree thus confirms a “bottom-up” approach encouraged by
46
Art 17 Implemetation Decree: Les conventions locales font foi entre
utilisateurs directs devant les institutions municipales et administratives.
47
K-P Kirsch-Jung and Soeftestad L.T.: REGULATING THE COMMONS IN
MAURITANIA: Local agreements as tool for sustainable natural resource
management, with a discussion on pp.12 ff. of the Decree, Presentation at
the 10th. Biannual Conference of IASCP, Bali, June 2006.
www.indiana.edu/~iascp/bali/papers/Kirsch_Jung_Karl.pdf; (last visited
Jan. 2007).
see also: C. Graefen, Kirsch-Jung K-P. & Banzhof M (ed.): LES IMPACTS
SOCIO-ECONIMIQUES DE LA GESTION DECENTRALISEE DES RESOURCES
NATURELLES; la contribution des conventions locales a la lutte contre la
pauvrete. GTZ publication (2005), see :
www.gtz.de/lamin (last visited Jan. 2007) for further references.
According to Kirsch-Jung, the local conventions have totally reduced
illegal wood-cutting and charcoal preparation in the areas they cover, by
giving “governance” back to the local users. A major success in the
resource-scarce habitat.
48
S. J. Scherr supra, Fn 7, at p. 70; Likewise, the Fourth Regional
Workshop on Natural Resource Management in West Africa held in
Niamey, October 12-17, 1998, recommended in its conclusions, inter
alia, to "strengthen the capacities of communities to play their role in the
planning and implementation of natural resource management actions as
well as to enhance their responsibilities"; see also J. Lindsay: DESIGNING
LEGAL SPACE: Laws As An Enabling Tool In Community-Based Natural
Resource Management, Plenary presentation at the International
Workshop on Community-Based Natural Resource Management (the
World Bank, Washington DC May 10-14, 1998) (John Lindsay is senior
lawyer with the Development law service of the FAO, Rome, Italy)
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some World Bank49 projects and sanctions the user conventions
generated by those projects. Due to the shortcomings of the
administration in general and lack of funds in particular, the burden of
training and promotion of said local conventions rests with donor-funded
projects. While such investment is to be appreciated, it also highlights a
crucial weakness in the concept of land management of the drylands:
practical coordination of such conventions. Encouragement of multiple
use of space is the right approach, and the assumption that the local users
know best how to go about it, based on their experience and tradition is
to be welcomed. Human nature being less than ideal, however, power
grabbing and greed by stronger neighbors may in practice result in the
extension of newly contractually legitimized extension of spheres of use
rights to the detriment of others, if the administration does not mediate
and plans ahead of time, as it is in theory called upon to do. Then, of
course, most damage was caused in the past by government agents
working for their own profit. The world not being ideal, it is probably
best to let the local population work out their power equilibrium, as they
always have.
Reports about express adherence to the rules of the Code – as
opposed to the us et coutumes underpinning its regulations, are not yet
known to the author50, neither arbitral decisions based on its Chapter V.
The author is confident that the Code will be honored, following
discussions with local stakeholders in Mauritania, because the law
embodies current wisdom on dryland management, namely to empower
49
Second Livestock Project (1985); Rainfed Natural Resource
Management Project (1994).
50
For studies analyzing the regulatory framework of the code and its
Decree, putting forth some judgment on the implementation issues,
problems and chances, see, inter alia: Khtour, D.O.: DROIT SUR TERRE
AUX HOMES DES NUAGES, elaboration et application du code pastoral
mauritanien; in: Elevage et gestion des parcours au Sahel, implications
pour le developpement. Edited by E. Thielkes, E. Schlecht and P.
Hiernaux, Verlag Ulrich E. Grauer, Beuren/Stuttgart (2001). Mohamed
Ahmed M.M.O and Sommerhalter T.: THE PEOPLE OF THE CLOUDS IN
SEARCH OF THEIR RIGHTS, First experience with the application of the
Mauritanien Pastoral Code, GIRNEM (2003); C. Hesse MANAGING THE
RANGE: whose responsibility, whose right ? Paper presented to the
regional workshop on “Les approches de la gestion des pâturages et les
projets de développement: quelles perspectives ?” Niamey, Niger, 2-6
(October 2000); and the PADEL/ICADA report (fn 45).
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local people to actively protect their own environment51.
A parallel may be drawn with the philosophy underlying current
natural resource protection, via "conservation by the people", in the
words of James Murombedzi52: involve the people who live in the area as
guardians, heighten their consciousness of the value of the environment
for their cultural identity, if not any longer for mere survival, and turn the
sustainable use into a monetary resource, either through guardian
salaries, sale of local products or tourism. The Arabian Oryx Project in
Oman53, a UNESCO World Natural Heritage Site, is such example:
threatened with extinction by poaching, a project to reinsert oryx was
initiated by Sultan Quabus in 1982, with the local tribe of the Harasi as
their guardians. The exclusion of a neighboring tribe (Benu Janabah)
created friction and caused some destruction Hence mutual
understanding of sharing the benefits of the “resource use” have to be
reached, akin to the local conventions proposed by the Code.
The design of the St. Katherine Natural Protectorate, established
in 1996 in the Sinai, may serve as another example that, by analogy, the
Code will be respected. The protectorate included, from the beginning,
the local Bedouins as guardians of flora and fauna. The "community
guards" (haris al biyah) are selected because of the esteem they are held
in by the tribe, their familiarity with the region and its wildlife, and their
commitment to preservation and restoration. The scheme relies on a
concept adapted from traditional tribal law, 'urf’, a rule indicating that
the protection of a certain area or species is the task of one particular
51
CAPRI Working Paper No. 47, see fn. 8.
52
52 J. C. Murombedzi, Program Officer in the Community and
Resource Development Program of the Ford Foundation in South Africa,
Plenary Presentation at the May, 1998, Washington D.C. Workshop:
THE EVOLVING CONTEXT OF COMMUNITY-BASED NATURAL RESOURCES
MANAGEMENT IN SUB-SAHARAN AFRICA IN HISTORICAL PERSPECTIVE
(1998) (on file with author). The four steps in the historical evolution of
environmental protection processes: (i) conservation against the people;
(ii) conservation for the people; (iii) conservation with the people; and
(iv) conservation by the people. (emphasis by the author).
53
www.oryoman.com (last visited Nov. 2006); J.A Spalton, Lawrence
M.W. & Brend S.A.: ARABIAN ORYX REINTRODUCTION IN OMAN:
SUCCESSES AND SETBACKS. Oryx 33(2) (1999), 168-175; D. Insall,
OMAN, in D. Mallon, and Kingswood, S. (eds.).: Antelopes Part 4: North
Africa, the Middle East and Asia p 69. IUCN Global Survey & Regional
Action Plans, Gland & Cambridge (2001).
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individual, and its destruction or infringement considered as aggression
on his personal honor, making the violator liable to pay him damages. 54
VI. ENVIRONMENTAL REGENERATION FOSTERED BY
THE CODE
A. IN GENERAL
The Code fosters mobility, essential for herders in drylands with
sporadic and erratic rainfall, north of the "isohyète 400 mm", the limit for
rainfed crops. The espace pastoral regulated by the Code lies primarily
in the east of Mauritania, encompassing the Wilayas (provinces) of Hodh
el Gharbi, Hodh Ech Chargui and Assaba. The area is characterized by
sparse grass cover and isolated occurrence of tree and bush. Valleys and
plains grow intense grass coverage following rains, with multiple species
and beautiful flowers that grow quickly and bear fruit, but to return to
barrenness within weeks.
The nomads are familiar with the ecological particularities of
these drylands. They realize the necessity to protect the vegetative cover
on which their herds rely. They practice “tetrag”, meaning that an area
must not be overgrazed to the point where plants are unable to regenerate
by producing seeds, are second nature to them. Before overgrazing
occurs, the herd moves on.
Tradition also dictates that water resources be exploited
prudently. The nomads will not let their beasts drink where wells are in
danger of running dry. This follows from the principe de zesou et ghab
according to which resources should never be totally depleted, but
allowed to regenerate, and according to which there should always be
something left for the most needy in case of emergencies.
Grass actually thrives when grazed: The animals fertilize the
ground through their droppings, a cropped plant regenerates faster when
not left exposed to the dehydrating forces of sun and wind, and some
species of grass, bushes and trees thrive on the saliva of the animals,
underscoring the symbiosis.
If la vocation de l’homme s’est parfaire la nature, the nomad
embodies this adage. They do improve on the environment, being
integrated into its biological cycles. They prevent desertification. The
54
J.J.Hobbs, SINAI'S WATCHMEN IN THE WILDERNESS, ARAMCO WORLD,
May/June 1999, at p. 12, 18–20.
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Pastoral Code thus promotes an activity fully compatible with
sustainable environmentalism.
One word of caution, however, may be in order. The ideal nomad
or “Bedouin” does not really exist any more, sedentarisation, the lure of
fast money through spoliation of the environment and the influx of
immigrants, have all changed the cultural context. Degradation by local
people occurs, otherwise there would have been no need to create the
parks mentioned above, or to legislate the rules set forth in the Code, in
the first place. Hence the necessity of sustained project work to promote
the Code, in view of the given constraints of the administration, primary
addressee to implement its own laws through appropriate institutions.
Time will pass. But the familiarity with the content of the regulations
facilitates their adoption and observation.
B. IN PARTICULAR
The drylands of eastern Mauritania harbor precious natural
resources, which are threatened by encroaching farmers: (1) the desert’s
seed bank; (2) migratory bird sanctuaries and (3) indigenous crocodiles.
The desert’s seed bank
Contrary to common perception, the Sahara desert has not moved
south in recent times, but oscillates. The density of the acacia flava forest
around the city of Timbedra, for instance, meets the same description
given to it by authorities of the colonial administration in 1912. The same
holds true regarding the density of the fauna around the well of Fougues
which was dug under the Sultanat Oulad M'Barek in the 18th century55.
Variations of dry spells and more humid periods alternate
56
and
55
55 A. W. Ould Cheikh, ELEMENTS D'HISTOIRE DE LA MAURITANIE,
Institut Mauritanien de Recherche Scientifique, Centre Culturel Français,
Nouakchott p. 110 (- no date -).
56
see, e.g. Washington Post Jan. 20, 2000 "Running hot and cold", p. 1 &
A11: "[…] it is possible that [Pacific Decadel Oscillation] PCD phase
effects such remote events as rainfall in China and the periodic droughts
in the Sahel region in Africa. Rainfall in the Sahel has been low for 20
years" Leetmaa (Ants Leetmaa, head of the National Oceanic and
Atmospheric Administration's Climate Prediction Center) said, "but
started coming up in 1994". The accelerated warming of the earth over
the last decade may alter these facts, but make preservation of the
wetlands even more important.
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following rains green grass reappears. This ability of grasses to
regenerate after prolonged dry spells (bushes and trees are adapted to
sustain dry spells thanks to their extensive root systems and by shedding
leaves) is due, in a large part, to the endurance of the seeds in the ground.
The southern frontier of the Sahelian dunes along the route de l’espoir
from Noaukchott to Nema is rimmed by ephemeral, flat but extended
lakes. These wetlands, boosting large acacia trees and bushes, are called
“Tamourts”. They have existed since millennia. These wetlands preserve
the humidity of the soil even during the most severe draughts. They
preserve the seeds, and also shelter fauna and other flora which can
readily re-populate the drier places around them at the next rains.
Recession crop farming, however, and untimely drainage of these
lakes for irrigation threatens this revival cycle of nature and risks
depletion of the water table beyond its natural regeneration capacity and
ecological cycles. Farming around the Tamourts also deprives the herder
of a watering place, of course, taking hundreds of kilometers of
surrounding grasslands out of the economic and ecological cycle.57
Planting in lands too dry for sustained farming greatly accelerates
desertification 58.
Reckless exploitation of the Tamourts, a millennia-old resource,
saps the vegetation’s regenerative vigor, hurts its resistance during dry
spells. Articles 23, 26 and 27 of the Code provide for procedures to
prevent the construction of permanent hydraulic facilities that would
reduce the water levels of these lakes and wetlands.
2.
Migratory birds
The Tamourts are important feeding grounds and resting places
for migratory bird species, such as the European stork. The migration of
the European stork stops at the Tamourts of the southernmost fringe of
57
See for a dispute between farmers and herders around the Tamourt
“Goungel” close to Aioun Al Atrouss in the years 2002-04 supra, fn 13.
58
See S. J. Scherr, supra, Fn 7: “ [. . .] many of the global ‘hot spots’ for
land degradation are in the drylands, threatened by salinization, nutrient
depletion, conversion of rangelands to grain production.”(emphasis by
the author) Id. at 3 (quoting S.J. Scherr & Yadav, S. : Land Degradation
in the Developing World: Implications For Food, Agriculture and the
Environment to 2020, Food, Agriculture and the Environment Discussion
Paper 14 (International Food Policy Research Institute ed., 1996)).
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the Sahara, while other continue southward to more plentiful grounds.
The Tamourts, like the Natural Park of the Banc d'Arguin, at the northwest coast of Mauritania59, constitute an important ornithological “hot
spot”. The promotion of its regional biodiversity has not yet received the
local and international attention and protection it deserves. By species
and quantities they would qualify to be protected under the Ramsar
Convention 60.
3.
Indigenous crocodiles.
The Tamourts are home to an indigenous crocodile species61 that
has survived there for thousands years from the days the area received
more average rainfall. Needless to say, this species is acutely endangered
if its habitat is drained for cultivation and dries up. Hunting by farmers
who have immigrated from Mali further threatens the species, whereas
the local herders never bothered them. If the Tamourts were left alone in
their natural state according to the principles set forth in the Code, the
herds would benefit, and the survival of this rare species would be
protected.
59
T. Monod, L'ILE D'ARGUIN, Paris (1983); République Islamique de
Mauritanie, Parc National du Banc D'Arguin, Rapport de Coordina (Mars
1997); see also E. Mahe, CONTRIBUTION A L’ETUDE SCIENTIFIQUE DE LA
REGION DU BANC D’ARGUIN (1985), (unpublished doctoral thesis,
Académie de Montpellier, Université des Sciences et Techniques du
Languedoc) (on file with author).
60
www.ramsar.org (last visited Jan. 2007)
61
On recent findings concerning these crocodiles see: T. Shine, Boehme
W., Boehme H., Nickel H., Thies D.F., and Willms T.: REDISCOVERY OF
RELICT POPULATION OF THE NILE CROCODILE CROCODYLUS NILOTICUS
IN SOUTH-EASTERN MAURITANIA, WITH OBSERVATIONS ON THEIR
NATURAL HISTORY; in Oryx, Vol. 35 No 3, July 2001, p. 260, with
pictures; P. Lluch, Robin, S. and Lescure, J.: LE CROCODILE DU NIL,
CROCODYLUS NILOTICUS LAURNETI, 1768 DANS LE TAGANT, in Bull. Soc.
Herp. Fr. (2004) 111-112: 5-23; see E.W. Bovill : THE GOLDEN TRADE
OF THE MOORS, 1978, p. 14, 183, citing Herodotus, THE HISTORY IV;
these crocodiles are “cousins” of the ones surviving in permanent lakes
in Chad, and the mountains in the west of Mauritania around Atar. See
National Geographic at :
http://news.nationalgeographic.com/news/2002/06/0617_020618_croc.ht
ml?fs=www3.nationalgeographic.com&fs=plasma.nationalgeographic.co
m (last visited Jan 2007).
27
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Next to the protection of the herder’s economic base, one of the
main anticipated benefits of the Code would therefore be the preservation
of "the intrinsic value of biodiversity"62, and the protection of ecosystem
integrity. Indeed, there will not be pastures worth protecting if the local
environment cannot regenerate according to its ecological cycles and
access to them would be rendered a moot issue. Thus the Code complies
with and heeds - quasi en passant – the admonitions of the three major
environmental conventions, namely the Convention on Biological
Diversity, the Convention on Climate Change and the Convention to
Combat Desertification.
VII.
COMPLIANCE
CONVENTIONS
WITH
INTERNATIONAL
The three UN environmental conventions: - on Biological
Diversity, the UN Framework Convention on Climate Change and the
UN Convention to Combat Desertification in Countries Experiencing
Serious Drought and/or Desertification, Particularly on Africa, all have
the same basic purpose: sustainable environmental protection in order to
preserve and foster human survival within the environment63.
The objectives of the Convention on Biological Diversity64,
(Art. 1) include: "[…] the conservation of biological diversity, the
sustainable use of its components and the fair and equitable sharing of
the benefits […]"
The objective of the Convention on Climate Change65 (Art 2):
62
I. Seralgedin, at the time Vice President Special Programs of the
World Bank, "CULTURE AND DEVELOPMENT AT THE MILLENIUM",
Photodocumentary to accompany an exhibition, The World Bank,
introduction, p. 10 (September 1999).
63
For graphic descriptions of the disasters befalling human society when
ecological determinants are ignored see: J. Diamond, COLLAPSE, How
Societies Choose to Fail or Succeed, Viking, 2005.
64
Convention on Biological Diversity, Rio de Janeiro, June 5, 1992;
www.biodiv.org/convention/articles.asp (last visited Jan. 2007).
Mauritania signed on June 12, 1992, and ratified on August 16, 1996.
65
Climate
Change
Convention,
New
York,
May
9,
www.unfccc.int/essential_background/convention/background/items/134
9.php (last visited Jan 2007); Mauritania signed on January 20, 1994 and
28
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"[…](allow) a time-frame sufficient to allow ecosystems to adapt
naturally to climate change, […] to enable economic development to
proceed in a sustainable manner."
Article 2 of the Convention to Combat Desertification66 has as
objective: "[…] to combat desertification and mitigate the effects of
drought […] through effective action at all levels [...] with a view to
contributing to the achievement of sustainable development in affected
areas."
All three conventions apply to arid Mauritania. The Code heeds
the conventions’ objectives by establishing a framework for exploitation
of natural resources consistent with the preservation of the local ecology,
and by protecting natural habitats against destruction through farming.
VIII. COMPARABLE LEGAL DEVELOPMENTS IN
SAHELIAN COUNTRIES
Mauritania’s Sahelian neighbors share to various degrees its
ecological characteristics, nomadic livestock raising, traditions and
beliefs and have likewise developed, or are in the process of developing,
legislation addressing pastoralism67
A. THE MALIAN CHARTE PASTORALE.
The Malian Charte Pastorale has been promulgated in 2000, but
has not yet been formally implemented, because its implementation
decree has not yet been published 68. The text was preceded by intensive
in-field preparatory work. It is a clear, precise, and yet detailed law of 71
articles. The Mali Charte pastorale pursues the same policy and protects
the same values as the Mauritanian Code pastoral, namely 69:
ratified on June 12, 1994.
66
Convention to Combat Desertification, Dec. 26, 1996,
www.unccd.int/convention/menu.php (last visited Jan 2007); Mauritania
signed December 26, 1996, and ratified on Aug. 7, 1996.
67
Burkina Faso, Chad, Guinea and Senegal, all either have enacted, or
are in the process of enacted pastoral legislation. I shall only discuss Mali
and Niger here.
68
Last checked by the author in June 2006.
69
Exposé des motifs, p 2.
29
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(1) mobility of herds;
(2) sustainable use of the resources;
(3) equitable access to the resources;
(4) decentralization and participative management of ressources
pastorals required for the survival of the herders' animals
(5) recognition of the tasks and responsibilities of herder's
associations;
(6) peaceful exploitation of the resources, and the avoidance of
conflicts.
The Charte distinguishes itself from the Mauritanian Code in a
number of ways.
First, it contains more elaborate and detailed definitions: e.g. it
defines transhumance70 and cross-border movements (déplacements
internationaux) 71.
Second, all stakeholders have to agree on the path of the
transhumance, and its calendar. The pathways (pistes pastorales) are
specifically protected72 against encroachment by farmers.
Third, the Charte stipulates in its Art. 36, that classified forests
are open to herders in accordance with the regulations leading to their
establishment. In addition, these forests are accessible in hardship times
either through ministerial decree or a decision of the respective local
administrative entity in charge. The Charte allows access into protected
areas, primarily reserved for local use, if at all, also to "foreign" herds,
not belonging to the community. This is a remarkable gesture of
generosity.
As does the Mauritanian Code pastoral, the Charte contains
detailed conflict avoidance and -resolution provisions73. As in
Mauritania, the text provides for extra-judicial solutions à l'amiable.
However, the emphasis and the tone differ:
the Code provides for an appeal to a state tribunal as ultima ratio
70
Art. 3 (4): "La "transhumance" est le mouvement cyclique et
saisonnier des animaux en vue de l'exploitation des ressources pastorales
d'un territoire donné". The movement of animals within the territory,
districts and villages of Mali is also regulated, Art. 19-26.
71
Art 28 though 31.
72
Art. 60 through 62. See supra Fn 5 and p. 14. The inclusion of these
clauses have been praised in regional workshops and Mauritania may reinsert a definition (see supra, fn 5)
73
Titre VII, art. 71 through 76.
30
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- when all other negotiated avenues have been exhausted, 74 whereas the
Charte provides for judicial procedure as the normal conflict solution
method, which must be preceded by a consultation effort 75. The different
approach is more likely to foster the communal solution in the case of
Mauritania, and render the consultation effort a mere formality in Mali.
Overall, Mali's Charte reveals a less liberal approach than the
Code. The Charte places more reliance on state authorities by making
actions and permissions dependant on agents of state agencies. The Code
by contrast acknowledges that the rights which herders request are
already vested in them in principle, the state simply lends its authority to
their protection.
Though this may appear a rather intangible difference, it is a
decisive one, which reflects on the mentality of the respective
governments (councils of ministers), parliaments and drafting teams:
practitioners in Mauritania, professionals in Mali. Another reason may be
that the Mauritanian Code expressly relies on traditional rules and
implicitly on the sharia, and therefore does not need to regulate a
variance of cases, whereas the Mali Charte seemingly tries to cover the
subject matter comprehensively. 76
This outcome is ironic because Me. Hubert Ouadrago, a codrafter of the Charte, justified the term "charte" instead of "code" by
arguing that “charte” conveys more a flexible guideline whereas “code”
implies comprehensiveness77. It appears that the opposite result has been
74
Art. 39 Mauritanian Code Pastoral.
Art. 71 Mali Charte Pastorale
76
For instance: Art. 18 provides for the herders' obligation to alert
the authorities to brush fires; art. 22 forbids the blockage of a recognized
path for animals; Art. 25 notes that the herd in movement needs to be
accompanied by <a sufficient number of herders> - all seemingly
obvious rules in the self interest of herders and farmers alike.
See also: Art. 31: "Les pasteurs accèdent aux pâturages et les
exploitent conformément aux dispositions ci-après" - and it follows a
number of regulations (until art. 45) stipulating various kinds of possible
uses - differentiated by resource (grasses, trees, fields, bourgoutiers, and
property type (forêt classé, bourgoutières communautaires, etc.).
And compare with the style of the Mauritanian text, for instance:
Art. 6: « Le droit d'accès aux ressources pastorales est entendu comme la
garantie pour le pasteur de la liberté de passage vers la ressource
naturelle […]".
75
77
Email from Hubert Ouadraogo, to Isselmou Abdel Kader (co-drafter of
the Code) and John Hall, (at the time task manager for the Mauritanian
31
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achieved.
B. THE CODE RURAL OF NIGER
In Niger the Code Rural 78, together with a number of
implementation decrees 79, with notably the Decree "fixant le statut des
Terroirs d'Attache des Pasteurs from January 199780 regulates herder's
rights, obligations and interests. .Contrary to the other two laws, the Code
Rural does not only address herders, but also regulates all rights in
pastoral World Bank projects) (Sept. 28, 1999) on file with the author.
The Council of Ministers contemplated to call the text “loi”.
78
Ordonnance No. 93-015, March 2, 1993, "fixant les Principes
d'Orientation du Code Rural (No. 622.3 Recueil des Lois & Règlements,
2nd. ed., 1994) (Niger).
79
Laws and Decrees (not exhaustive) governing the rural sector in Niger
cited here for information only to indicate the wide scattered and
differentiated range, resourced by Moussa Yacouba (lawyer, legal
counsel auprès du Secrétariat Permanent du Code Rural du Niger, when
visited by the author in 2001):
- Ordonnance, 93-015, Fixant les Principes d’Orientation du Code
Rural (March 2, 1993) (Niger);
- Order No. 93-01 of March 2, 1993, portant régime de l'Eau;
- Order No. 196-067 of November 9, 1996, portant Régime des
Coopératives Rurales ;
- Decree No.96-430/PRN/MAG/EL of November 9, 1996,
déterminant les modalités d'application de l'ordonnance portant régime
de coopératives rurales ;
- Decree No. 97-006/PRN/MAG/EL of January 10, 1997, portant
réglementation de la mise en valeur des Ressources Naturelles Rurales;
- Decree No. 97-007/PRN/MAG/EL of January 10, 1997, fixant le
statut des terroirs d’attache des pasteurs ;
- Decree No. 97-008/PRN/MAG/EL of January 10, 1997, Portant
organisation, attributions et fonctionnement des institutions chargées de
I'application des principes d'orientation du Code Rural ;
- Decree No.97-367/PRN/NIAG/EL of October 2, 1997, déterminant
les modalités d'inscription des droits fonciers au Dossier Rural ;
- Decree No. 97-368/PRN/N41AE/E of October 2, 1997, déterminant
les modalités d'application de l'Ordonnance n"93-014 du 2 mars 1993
portant régime de l’Eau.
80
Decree No.: 97-008/PRN/MAG/EL, January 10, 1997.
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relation to land tenure and natural resource exploitation.81
The law has been researched and prepared since 1985. As is the
custom in francophone countries, numerous national and international
ateliers, round tables and workshops have been held, discussing
proposals and drafts. The resulting text, however, is inadequate at least as
far as livestock raising is concerned. Respective clauses are scattered
over a number of regulations. The governments’ purported intent is to
concentrate all regulations pertaining to “land” in the Code Rural,
thereby guaranteeing cohesiveness among them and facilitate access to
them in one place. A noble objective. However, with the ambition to
regulate every detail, the result would either be an unwieldy code, or the
multitude of scattered decrees we have now.
More disturbing than the form is the heavy hand of the state
evident in the letter and the spirit of the law. For example, whereas Art. 5
of the Code Rural proclaims the principle that all rights to natural
resources are equally protected, whether they originate in traditional
rights or written law, Art. 3 of the Decree of January 10, 199782
stipulates: " Les ressources naturelles font partie du patrimoine commun
de la Nation. Une obligation de mise en valeur pèse sur toute personne
titulaire des droits reconnus par la loi sur l'une quelconque de ces
ressources." and its Art. 13 continues, with a certain logic, "les
communautés pastorales qui ne respectent pas les obligations légales ou
réglementaires de mise en valeur peuvent être privées de leur droit de
jouissance prioritaire".
A detailed procedure is set up for state agents to supervise these
provisions and to order sanctions, if required 83. This of course, recalls
socialist supervision by “big brother”, but more to the point, offers
perfect legitimacy for the hassling of the local population by government
employees, in particular as the concept of “mise en valeur”, coded for
planters, leaves ample room for discretion when applied to livestock
herders.
81
Since about 2000 numerous endeavors are underway in Niger to
legislate specifically for herders. Mamalo Abdoul, Directeur auprès du
Secrétariat Permanent du Code Rural du Niger has delivered a
presentation in 2006 at the Montpellier Symposium (see Fn. 1) outlining
that a draft text is now in its final stages. A summary is available at:
www.mpl.ird.fr/colloque_foncier/Communications/Resumes.pdf
(last
visited Jan 2007)
82
83
Decree Nr. 97-006/PRN/MAG/EL
Articles 36 sequitur.
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IV. CONCLUSION
In Sahelian countries we can see a trend to draft legislation
setting out rules for nomadic herders and their livestock, based on
traditional law. This is positive trend. Recognition of community-based,
common property resources' management concepts is essential for the
preservation of the renewable, yet scarce, natural resources in the area. It
is also essential for the survival of herders and their animals. The
legislation not only secures the economic base for mobile livestock
agriculture, north of the 400 mm/a isohyète much more profitable than
planting (be it rainfed or irrigated), but also serves to protect the
environment. Further, recognition of use rights granting access to the
resource, as opposed to exclusive ownership rights, is more appropriate
to achieve these goals, and more adaptive to the Sahel's particular
environment. At the same time such legislation complies to a large extent
with the obligations under the three international conventions aimed at
protecting the environment.
The Mauritanian Code pastoral convinces because of its clarity of
language laying out clear policy priorities. The Code is the more liberal
of the three texts discussed, confirming mobility and access to pastoral
resources as a traditional, pre-existing right. While also based on the
custom prevailing in their countries, the Malian Charte pastorale allows
for more discretion of the administration to regulate herders' movements,
and the Niger Code rural appears to make the exercise of the rights
subject to administrative approval. This would seem like a gradient form
the more liberal to the more authoritarian approach, changing the liberty
of the herder to access “his” resource into a revocable permission by the
state.
The Mauritanian Code pastoral embodies its own executory
regulations by relying on existing structures, involving state authorities
only to the extent that their co-management responsibility is engaged.
Through reliance on customary rules and behaviorisms, and the
principles of sharia, the Mauritanian Code avoids the enumeration of
lengthy casuistic regulations. With only 46, short articles, complemented
by 28 articles of its implementation decree, the Mauritanian legislation is
by far the shortest and most appropriate legislation in the Sahel.
Hans-Werner Wabnitz
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ANNEX
The Sources of Muslim Law – a Short Definition of
"Sharia"
The term sharia (“the way”) describes the body of Islamic Law,
the rules and principles that derive from a variety of sources, hierarchical
in nature and grouped into two categories: the perfect, immutable and
divine law of God as revealed to the Prophet Mohammed in the Koran;
the Sunna (the binding authority of the Prophet’s decisions, as reflected
in his actions) including the Hadiths (the binding authority of the
Prophets dicta), on the one hand, and the sum of human comprehension
of these on the other hand, namely the fiqh (“understanding”) divided
into Idjmâ ( consensus of the community of scholars) and Ijtihad
(“effort” in finding the right solution by a scholar, based on the primary
sources).
The concept of law in Islam differs fundamentally from the
western understanding of law. To the Muslim mind, particularly the Arab
Muslim mind, religion and law are inseparable.
Whereas the modern western understanding of society, framed
by two centuries of Enlightenment, naturally considers religion and law,
Church and State as two separate spheres of life and cherishes their
separation as one of the main accomplishments in liberating the
individual, a cornerstone for the organization of the public space (e.g. loi
de la laicité de 1905 in France), the Muslim sees both spheres converge
to guide the daily life of the faithful. Mohammed himself was Prophet
and Commander in Chief, founder of a religion and a state. In his reign
religious belief is not a private affair, but the glue of the community,
since he is the leader of the community of believers (oumma).
Under this worldview the state is not meant to simply guarantee
peace, security, property rights and individual freedom, but to facilitate
and protect the exercise of the faith. The Caliph, the wordly and spiritual
leader of the faithful, successor of Mohammed, directs prayer as imam
and enforces the sharia. However he has no authority to interpret the
texts, the latter being the reserve of the legal scholars or oulema. The
exercise of the faith in common public ritual is cherished as
reinforcement of the faith and of a sense of community. Laws,
regulations and guidelines for human behavior in private, in public and
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for the community itself all converge around the basic values of the
Muslim faith, worldly regulations and sacred rules both form an
integrated whole.
Thus Islamic Law has to be understood and interpreted keeping in
mind that it is a value system first, essentially, the word of God himself.
As such it is immutable, eternal, and not subject to omission or
extension. This does not preclude the application of Islamic law in a
secular state, but the holistic claim to guide all aspects of human
behavior, moral and social, remains a guiding principle. “The sacred law
of Islam is an all-embracing body of religious duties rather than a legal
system proper; it comprises on an equal footing ordinances regarding
cult and ritual, as well as political and(in a narrow sense) legal rules”
(Joseph Schacht in “THE ORGINS OF MOHAMMADAN JURISPRUDENCE”,
Oxford, reprint 1975, Preface).
Similarly, Amadou Hampaté Ba, begins the definition of sharia
with the enumeration of the five pillars of Islam, namely: shahada, the
profession of the faith (in the unity of God and Mohamed as his Prophet);
salat the prayer five times a day; zakat, the duty for exercising charity;
saum, fasting during the holy month of Ramadan, the tenth month in the
Islamic calendar; and hadj, the pilgrimage to the holy Kaba' in Mecca
once in a lifetime. (VIE ET ENSEIGNEMENT DE TIERNO BOKAR, Le Sage
de Bandiagara, Seuil, 1980, p. 130, Fn. 1). This aura of sanctity (cp the
introduction to the Medjelle, below on page 8) renders legal disputes
delicate, because the opponent is easily accused as “apostate”. A nonbeliever is considered unable to understand the Koran. In both cases the
opposing argument s disqualified.
From early times on Islamic scholars have developed a great deal
of thought, skill and philosophical endeavor to escape rigidity, justify
reasonable interpretation of the law in order to arrive at acceptable
conclusions for a specific issue. A certain methodology (usul al-fiqh –
the roots of the law) of interpretation has to be respected, foremost the
hierarchy of the sources of the law (comparable to the architecture of
Constitution versus law versus Decree). These sources and their ranking
are laid down in the Koran itself:
"Oh you believers! Obey God and obey the Messenger and
those of you who are in charge of affairs. If you have a dispute
concerning any matter, refer it to God and to the Messenger"
(Surate 4, "Women", lines 59 ff.
which is interpreted to refer to, in this order: (1) the Koran (obey
God); (2) the Sunna and Hadîth (the messenger); (3) the Ijma (those [...]
in charge of affairs) and (4) the Ijtihad.
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interpretation based on all of the three other sources. (Mohammed
Hashem Kamali, PRINCIPLES OF ISLAMIC JURISPRUDENCE, (rev. ed.)
Cambridge, (1991) p. 10
This last source of law, the weakest, provides flexibility to adapt
interpretation to changing circumstances. The “doctrine of necessity”
(mabda’ ad-darura) eases such adaptation, comparable to the concept of
equity in the common law or the “general terms” in German law
(Generalklauseln), it allows for solutions in a given situation which
would normally contradict formal law. Islamic law or sharia is therefore
rather a body of thought than a code or a collection of statutes. As will be
seen in the following, differences among the various schools of legal
thought, and the contemporary struggle for an Islamic renaissance all
evolve around the concept of ijtihad.
(1) The Koran is the holy book of Islam, bedrock of its faith. It is
the word of God as dictated by archangel Gabriel to Mohammed, the
Prophet, over a period of some twenty years. The beauty of the language
is considered proof of divine origin. (This beauty is, however, disputed
by some Orientalists). The Koran has been compiled from memory
within twenty years of Mohamed's death in 632 by his followers.
The Koran is collection of stories and exhortations, moral precepts,
polemics and threats against the adversaries of the new faith, which are
neither poetry, nor prose, the Sura. They are organized not by subject or
date, but length: the longest ("the cow") being the first. Because the
Koran is the word of God, it's true meaning cannot be translated.
Difficulty of translation also resides in the fact that in Arabic the
meaning of a word may change according to context, the occasion, or
audience. Consequently translations of the same Sura, by different
interpreters in the same language, or in different languages, sometimes
have almost nothing in common.
(2) The Sunna and the Hadîth are the sum total of all the
teachings of the Prophet Mohammed, comprising the lessons his
behavior taught his followers. The strength and legal persuasiveness of a
rule thus derived at depends on the credibility of the witness who first
reported the rule, and every learned jurist thereafter who has used this
specific rule.
The Sunna - custom or the "beaten path" – referred initially to the
customs and tradition prevalent among the tribes, but was restricted
under the influence of the scholar Idris al Shâfi’i in the 8th century to the
behavior and acts of the Prophet, which the faithful have to imitate (Noël
J. Coulson, “A HISTORY OF ISLAMIC LAW”, Edinburgh, 1964, French
edition, Presses Universitaires de France, 1995, p. 40, 60) (the word
"sunnite" derives from this definition of the group of the (orthodox)
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faithful. The term was keyed for those “who followed tradition” when a
majority recognized the Omayid Caliph Moawiyyah ibn Abi Sufian in
Damascus following the battle at Siffin in 656 with its ensuing arbitral
decision. The opposing minority followed the fourth Caliph Ali ibn Abou
Taleband thereby became “shia” (shi at Ali partisans of Ali).
In the years following the consolidation of the various legal schools
and their competition for influence and power, many such Hâdiths and
rules supposedly rooted in the sunna are said to have been invented or
quoted out of context (Schacht, supra, pp. 151 ff; Kamali, supra,pp. 65
ff.). The shia legal doctrine disregards Hadiths and Sunna reported by the
first three Caliphs (see below) which causes a major gap within this
source.
(3) Consent (Idjmâ, of all faithful) is the behavior and the opinion
of the Prophet's most faithful followers, and generally, the learned initially those of Medina (the city in which Mohammed lived). The legal
force of this source of wisdom has been sanctioned by Mohamed himself,
who once said that "my followers will not unanimously agree on an
error". (Saïd Ramadan.: “SHARÎ’A - ISLAMIC LAW : ITS SCOPE AND
EQUITY”, French translation Al Qalam, Paris, 1997, p. 113, quoting
Mustafa Zayid, AL-MAÇLAHA, pp. 121-127.) The early legal schools do
not rely on this doctrine, however, the validity of which has been
disputed, and it is held by some that the doctrine was developed later
only to avoid dispersion of legal thought.
(4) The own, considered legal reasoning (Ijtihad) - this is the least
persuasive source of law, obviously. It implies the opinion of a scholar,
his well researched and inner conviction, reflecting the morality of Islam
(an mujtahid). The legitimacy of this source is also based on a Hadîth of
the Prophet: when he sent his student Mo'az boun Jabal to Yemen to
preach, and relied on his considered opinion - because he trusted his
student to be able to draw the correct conclusions from the other three
sources of law. (Saïd Ramadan, supra p. 89). The legal reasoning has to
follow a certain established methodology, applying qiyas, analogical
deductions. The scholar needs to scrutinize each source in sequence to
find the solution; if this fails, he examines weather all sources seen
together provide an answer; he then proceeds to analogy, following the
same path; and only if this also fails he may invoke his own opinion,
“refined and disciplined by the intense and profound contemplation of
the law in its entirety”. Herbert J. Liebesny: THE LAW OF THE NEAR AND
THE MIDDLE EAST, State University of New York Press, NY, p.19
(1975).
It is not an easy matter to destill the correct advise for appropriate
conduct from these sources. A tension exists between the Koran and the
Prophet's teachings on the one hand, holy and final, any deviation being
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susceptible to be punished as heresy, and, on the other hand, sources
interpreting those, themselves amenable to a wide array of
interpretations. Besides, the references to strictly legal injunctions, as
opposed to moral or social guidelines in the Koran itself, are relatively
limited: 70 verses concerning family law; 70 verses concerning civil law;
30 verses concerning penal law; 13 verses concerning procedural law; 10
verses concerning (administrative and) constitutional law; 25 verses
concerning international law and 10 verses concerning economic and
financial law: 228 Surates out of a total of 6.219 (Ramadan, supra, p.48).
A correct interpretation will bear in mind that one of the principle
teachings of Mohammed was tolerance - to always strive to do the right
thing, and not to follow a dogmatic rule.
Not surprisingly, several schools of legal interpretation developed
over time around the quest of finding the correct answer to questions
concerning individual, or community conduct. The treaties of Islamic
scholars or jurisconsults combine theoretical discussions of doctrine and
compendiums of case law. The better know sunni schools are four:
(1) the oldest is the school of Malik bin Anas, based on his work
AL-MOWATTA (Around 770 AD). The book contains interpretations of
the Koran, the Sunna, the customary law of Medina and it's interpretation
by their scholars. The teachings are rather orthodox and dogmatic. This is
the rite malekite followed in Mauritania (and Upper Egypt, North Africa
and Sudan).
(2) Almost at the same time another school developed in Syria and
Iraq, represented by Abou Hanifa. This school admits the personal
judgement upon consideration of analogies as a valid source. The Sunna
is not restricted to custom in Medina. The rite hannafite is more tolerant
and adaptable than the former (followed mostly in Turkey, India and
China (spread by the Ottoman empire).
(3) somewhat later (810 AD) Ach Châfi attempted to reduce the
subjectivity of judgment in the finding of the right decision by admitting
only the consensus of a given group of scholars on a specific topic as
source of law besides the Koran and the Hadîth. In its application, this
method (rite chafite) allowed his followers to develop legal doctrine by
initiating discussion on a topic within the learned community and then
preserving the emerging consensus as new law. (followed mostly in
Lower Egypt, Arabia (Hedjaz), Yemen, Palestine and East- and Central
Africa).
(4) the forth of the legal traditions was founded by Ahmed bin
Hanbal around 830 AD. It is more rigorous, hostile to innovation,
considering Koran and sunna as only valid sources of law and admitting
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"judgement" only in extremis. The rite hanabalite flourished in the
twelfth century in Syria and Iraq and is now followed in Arabia (Nedj).
Whereas these schools do not differ fundamentally, their
followers soon entered into intense competition about minor,
interpretative matters, which mixed legal rigor, religious zealotry and
support in power struggles among the various Islamic branches and
dynasties. The theoretical and doctrinal door through which individual
variations entered the debate was the question of admissibility if ijtihad,
the autonomous reasoning and the definition of the qualities of character
required to authorize anyone to engage in such exercise.
The shia developed their own schools. Although the basic tenets of
the belief of both groups are the same, the shia distinguish themselves by
the recognition of a clergy (the ayatollahs), and a separate interpretation
of the sharia. Orthodox sunnis consider the shia heretics, but a 1959
fatwa of the Grand Sheikh of Cairo’s al-Azhar University, the foremost
seat of sunni doctrine and learning (founded by the shia dynasty of the
Fatimids in the 12th. Century) recognized mainstream Shiism as a
legitimate school of thought.
The three most influential shia schools are: the Jafari, the Usuli,
and the Akhbari. They distinguish themselves in arcane doctrinal
differences. The main point of discord is the authority, or not, to use
ijtihad in adapting religious and legal doctrine to contemporary
circumstances, the dominant Usuli school being the more liberal, and
politically active, whereas the Akhbari school is more restricted.
All schools embrace the so-called doctrine of The Twelvers, (ithma
ashariya) which teaches the believe in twelve rightful Imams (leader of
the faithful), beginning with Mohammeds’ son-in-law and cousin Ali ibn
Abou Taleb, husband of his daughter Fatima Zahra, and ending with the
death in 941 of the twelfth imam Muhammad Al Mahdi. He is also called
Muhammad Al Muntzar, the “awaited”, because he decreed on his
deathbed that no further imam should be appointed, the faithful ought to
await his reappearance on judgment day. He is therefore revered as the
“hidden” imam. Due to persecution by the Abassid Caliphs (the two
foregoing imams were imprisoned; the holy mosque built over their tomb
in Samarra has been destroyed on 22. February 2006 by sunni Al-Quaida
fanatics), he had already spent his life in hiding, communicating with his
followers through messengers or “babs” (doors).
The line of the twelve imams is disputed among various schools,
and central to their respective definition. The concept of The Twelvers is
followed by about 80% of shia muslims and state religion in Iran since
1979.
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(1) Jafar As-Sadiq (665 – 699), the sixth iman, also known as “the
truthful” was respected for his wisdom and religious knowledge. He is
the founder of the Jafari school. He taught Abu Hanifa and Malik ibn
Anas, who proceeded to found their own (sunnite) schools of legal
thought. The main difference between the madhab Jafari and the sunni
schools consists in:
- the rejection of those “hadiths” reported through the first
three imams and their teachings: Abu Bakr, Omar and Othman, all
considered hostile to Ali ibn Ali Talib, whom the shia revere as
the first imam;
- the concept of “infallibility” to the rulings of the Twelve
Imans and Mohammed (obviously) but also his daughter Fatima
Zahra, wife of Ali.
The Jafari school accepts the opinion of a contemporary learned
legal scholar (“of known virtue”, a mujtahid) as guidance for the ordinary
faithful. In essence this is a confirmation and an extension to the
legitimacy of ijtihad.
The scope and legitimacy of ijtihad constitutes the distinction
between the other two shia schools, who were founded in Persia in the
17th. century. Legal thought is interwoven with political aspirations,
drawing legitimacy from historic context.
(2) The Usuli (usul-i-fiqh means principles of jurisprudence)
school is the dominant line of thought to-day. It embraces the concept of
taqlid and makes liberal use of ijtihad. Political activity is encouraged for
the legal scholars (an active caste of priests, the ayatollah).
(3) The Akhbari (communicators of tradition) restrict ijtihad
during the time when the twelfth imam is hidden (i.e. from the tenth
century to to-day), proclaim a strict adherence to the teachings of the
twelve imams only and consider that jurisconsults ought to abstain from
exercising power.
The so-called Traditionalists enforced a conservative trend in the
11th. century, fearing too much liberty of interpretation, by insisting on
the fact that all rules have to be traced back directly to either the Koran or
a transmitted word or act by the Prophet, (back to the roots) gradually
stymieing all further legal development. This is called “the closing of the
door” of ijtihad and ushered in centuries of intellectual starvation and
decadence. (Kamali, supra, Preface xvii, pp. 386 ff.; Coulson, supra,
p.71). Jurisprudente did continue, though, rendered by cadis or muftis,
and were incorporated into the handbooks of the respective legal schools.
A number of Islamic sects have developed their own set of
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guidelines for their faithful. The Sufi are mystics, drawing mostly shia
followers. Wahabism in Saudi Aabia, at the other end of the spectrum, is
orthodox, rigorous and agressive; in West Africa the Mourids and the
followers of Sheikh Tidjani preach to large communities. These and
other sects combine their own tribal custom with the more generally
accepted teachings.
A revival of legal doctrine through interpretation occurred
in the later half of the 19th century driven by Muslim intellectuals who
wanted to resurrect Islamic independence and line of thought, spurred on
in opposition to western, and Christian, doctrine and hegemony (and
economic and military success). As was the case following the
development of the early legal schools, the interpretation of the law was
closely mingled with religious outlook and attempts to attain political
power. The proponents were motivated by the correct understanding that
simple imitation of western ways, technology and administration would
not lead to true modernization, unless the underlying values were also
transposed. Since they opposed such adaptation and assimilation, they
attempted to revive the Islamic philosophy by an opening of ijtihad –
adaptation of the old rules to new circumstances.
Among the first were the Iranian Jamal al-Din “al-Afghani”,
(1839-97); the Egyptian Muhammad Abdu (1849-1905); the Egyptian
journalist Rashid Rida (1865-1935); the Indian poet and philosopher
Muhammed Iqbal (1876-1938); followed by the Egyptian teacher Hasan
Al-Banna (1906-49, the founder of the Muslim Brothers, (concerning
their genesis and current history see: Le Monde of 14 January 2002:
“focus” p. 22.) The Egyptian Saïd Ramadan (1926-1995), installed in
Geneva since 1958, father of Tariq Ramadan, Professor in Geneva and
Oxford, continued the trend of intellectual liberalization of the doctrine.
Dedicated to an internal renaissance of Islam, drawing on the
strength of the openness of the teachings of the Prophet, (when viewed
against his contemporary background, the customs of polytheistic
Bedouin), these men tried to develop a moral and legal doctrine able to
withstand the western onslaught and become a unifying and inspiring
force for the Muslim world again. However, fiercely attacked by
religious conservatives and political opponents (who held power) alike,
these attempts to open ijtihad were soon replaced by many followers
with violence: President Sadad of Egypt was assassinated in 1981 by
Muslim Brothers ; Abdullah Azzam, a Muslim Brother, founded one of
the resistance movements against the Russian invasion of Afghanistan in
Peshawar where Osama Bin Laden became his most infamous student.
Violence nourished by religious fanatism turned into terrorism – opposite
to, but equally destructive as religious fundamentalism. Both search and
obtain justification for their violent acts through their own particular
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reading of the Koran or the “source” (hence “Al Quaida”, the source),
construing their own unholy fundamentalist doctrine, such as Omar ibn
Mahmoud Abou Omar, jurisconsult and imam in London, founding
member of Al Quaida’s committee for delivering fatwas justifying the
murder of innocent civilians.
In Europe the liberal revival of Islamic thought also found
followers, among which Muhammad Asad alias Wolfgang Weiss, (1903
– 1996) who transcribed the Koran into English and added extensive
interpretations (THE MESSAGE OF THE QUR’AN, translated and explained
by Muhammad Asad, Dar Al-Andalus, Gibraltar, 1980).
Characteristically the motto he chose for the first page says: “For people
who think”. The Tunesian, Mohamed Talbi, defends the adaptation of
sharia to modern reality: “PLAIDOYER POUR UN ISLAM MODERNE”,
Desclée de Brouwer (1998). The French, Malek Chebel, defends the
same approach in his “MANIFESTE POUR UN ISLAM DES LUMIÈRES”
(Hachette Littérature, 2001), namely the adaptation of Islamic law to
modern times, and notably the recognition of equal rights for women.
Recently a number of Muslim women associations have
been started in recent times to make this struggle their own. A number
met at the 2nd International Congress on Islamic Feminism in Barcelona
Nov 3-5, 2006 (see
http://www.middle-east-online.com/English/?id=18136 (last visited Jan.
2007). Heba Raouf Ezzat, Professor of political science at the Cairo
University, defends an opening of Islamic doctrine and women rights.
She co-authored an article: TOWARDS AN ISLAMICALLY DEMOCRATIC
SECULARISM (in Faith and Secularism, Rosemary Bechler (ed), a British
Council Counterpoint book, Bedford, UK, (2006). See also the site of
Irshad Manij, a Canadian Muslim engaged in the fight for equal rights,
author of the book “MUSELMANE MAIS LIBRE”, Livre de Poche, Paris,
2006, at. :
http://www.muslim-refusenik.com (last visited Jan. 2007).
The moderate and tolerant Topkai Declaration of July 2nd. 2006,
drafted by Tariq Ramadan in the name of a majority of Muslim leaders to
promote mutual understanding, exchange and respect, and notably
condemning all form of violence may well be interpreted as a sign that
indeed the doors of ijtihad are opening up again and that the struggle for
equal rights of women may not be as painful as it sometimes seems to be.
See :
http://www.arabia.pl/english/content/view/74/16/ (last visited Jan. 2007).
The fact that Islamic law finds its’ roots in the immutable word of
God, does not, in legal doctrine, hinder the enactment of modern laws
through parliaments and the ensuing obligation of Muslims to respect
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these laws. As only relatively few strictly legal precepts have been given
in the Koran, and the sunna and Hadîths necessarily restrict themselves
to topics relevant at the lifetime of the Prophet, new issues may be
addressed by new laws – provided they do not contradict the basic
Islamic tenets.
In the Mauritanian Constitution (see Fn 11) this duality is
expressed in its’ Preamble:
“Confiant dans la Toute Puissance d’ALLAH, le
peuple mauritanien proclame […]
“Fort de ses valeurs spirituelles et du
rayonnement de sa civilisation, il proclame en outre, solennellement, son
attachement à l’Islam et aux principes de la démocratie [...] “
“Considérant que la liberté, l’égalité et la dignité
de l’Homme ne peuvent être assures que dans une société qui consacre la
primauté du droit, soucieux de créer les conditions durables d’une
évolution sociale harmonieuse, respectueuse des préceptes de l’Islam,
seule source de droit, et ouverte aux exigences du monde moderne […]“
(emphasis mine), and see : Art 4: “ La loi est l’expression suprême de la
volonté du people. Tous sont tenus de s’y soumettre. », and Art 5 : “
L’Islam est la religion du peuple et de l’Etat. “
Furthermore, Art 1179 of the Code des Obligations et des Contrats (see
Fn 11) stipulates: “Pour combler les lacunes de cette ordonnance, il est
fait référence au rite malékite. Pour lever toute équivoque dans la
version française de ce texte la version arabe fait foi. “
In the late 19th century the Ottoman Empire, in an effort to
modernize its administration and economic exchanges, codified the
sharia pertaining to civil law and commercial law, the so-called
“Medjelle”. The codification orients itself at western codes and
transforms the compendia of fiqh islamique, which consisted in
collections of case law. The civil code (which calls itself Loi Sacrée)
begins with a definition in its Art 1:
“La science du Droit Musulman (ilmi fikih) est la
connaissance des préceptes de la Loi Sacrée par rapport à leur
application aux actions humaines.
Les dispositions de la Loi Sacrée se rapportent à la vie future et
comprennent la matière du culte, ou bien concernant la vie
temporelle et se divisent en trois catégories, à savoir : 1. Le
mariage. 2. Les obligations en général et les conventions, 3. Les
peines.
Selon la volonté divine, la Création doit subsister dans l’état ou
elle se trouve jusqu'à l’époque fixée par les décrètes suprêmes ;
[…] »
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Despite this obvious and repeated reference to the sacred, Art. 2
copies a stipulation of the French code civil:
“Art 2: Pour apprécier une action on doit en rechercher
l’intention. C’est-à-dire, l’appréciation qu’on fait d’une action doit
s’appuyer sur le but qu’elle avait en vue. (cp Code Napoléon, art.
1156).
French translation of the Turkish text, dated 1.er Muharram 1287 AH (1871 AD),
published in 1881 as appendix to the “Legislation Ottomane d’Aristarchi”.
The Madjelle was the law of the country in Iraq until 1951, when a
new Civil Code was enacted on 18 September 1951, (Off. Gazette #3015,
dated 8 September 1951) and compiled from two sources, the Islamic
sharia as edited through the “Majallat Al Akhma Al ‘Adliyya’” and the
Civil Code of Egypt. The Ottoman Code is still in force, in amended
form, in Syria and Palestine. The Syrian civil code of 18. Mai 1949
(Décret legislative # 84; copying the Egyptian Civil Code of 1949)
postulates the inverse order of priority to the Mauritanian Constitution:
Art 1: “1) […]
2) A défaut d’une disposition législative applicable, le juge
statuera d’après les principes du droit musulman et, à son défaut,
d’après la coutume, et, à son défaut, suivant le droit naturel et les
règles de l’équité. “
In Tunesia, a civil code (among others) was enacted under French
sponsorship in 1906, edited by David Santillana and an illustrious group
of Islamic jurisconsults, (les muftis et qadis des deux rites hanéfites et
malékites - Doctoral theses by Sana Ben Achour, dated 24 January 1996,
currently Professeure agrégée de droit à Tunis, Secrétaire générale de
l’Association Tunisienne des Femmes Démocrates).
Santillana went on to work also on the reforme of the Civil Code
of Maroc (see: V.J. Moneger, BIOGRAPHIE DU CODE DES OBLIGATIONS
ET DES CONTRATS, DE LA RECEPTION A L’ASSIMILATION D’UN CODE
ETRANGER DANS L’ORDRE JURIDIQUE MAROCAIN, in : Revue marocaine
de droit et d’économie du développement 1984 Nr : 7, Nr.19 and
following.
In Mauritania efforts to harmonize Islamic law with modernity,
adopt it to contemporary life, and simultaneously present it in accordance
with western methodology, continues (Mohamed Mahmoud Ould
Mohamed Saleh, (Professeur agrégé de droit à l’Université de
Nouakchott et à l’Université Sophia-Antipolis à Nice, avocat : DROIT DES
CONTRATS EN MAURITANIE (especially Sections I and II, serving as
introduction), Publication of the Ordre National des Avocats,
Nouakchott, Mai 1996).
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Also in Mauritania, open-minded jurisconslts, such as
Hamden Ould Tah, Mohammed Salem Ould Adout, have, despite the
strict tenants of the malikite school, not hesitated to use the “doctrine of
necessity” to arrive at reasonable results. For instance, in the late 1990s a
fatwa authorized the consumption of frozen chicken meat, even though
the birds had not being slaughtered according to the established ritual and
were therefore haram, forbidden, when the prizes for local meat where
unattainable for the poor and Chinese chicken cheap and abundant.
Another fatwa authorizes Mauritanian waiters abroad to serve alcohol to
their clientele, if otherwise their families would have no source of
income.
It is regrettable that the compilation of these fatwas, while
widely known among the people, are ignored by the establishment, not
published in Arabic, let alone French, and generally not evoked in
discussions of societal- or legal reform. This behaviour undermines
efforts to harmonize both legal strands, the so called modern and the
Muslim law.
The Code Pastoral of Mauritania, however, is a vivid example of a
successful effort of adaptation Islamic legal tradition to changing realities
within the modern context.
The beauty and the difficulty of interpreting the law in Islam is
best illustrated by a poem of the Persian philosopher and mystic ElRoumi :
“Le livre de Dieu repose sur quatre bases:
L’expression, l’allusion, les plaisanteries, les vérités.
L’expression est pour le peuple ;
L’allusion pour les gens distingués ;
Les plaisanteries pour les saints ;
Les vérités pour les prophètes. »
Djalal El-Din El-Roumi (605-672H/1207-1273AD)
HWW (18 XII 06)
All websites visited November , 2006
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the code pastoral of the islamic republic of mauritania

Transcription

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