Recht in Afrika-Law in Africa-Droit en Afrique, Forthcoming
50 Pages Posted: 13 Jun 2006
This paper outlines the content and impact of the Code Pastoral (2000, effective 2004) of Mauritania. The text recognizes the traditional common property regime for nomads on pastoral lands, classified as public domain (Art 9, 13), a shift from exclusive ownership rights. Nomadic livestock raising accounts for 75% of Mauritania's agricultural output, but receives only 10% of agricultural budget and donor support, compared to sedentary agriculture - a policy error.
The Code has been drafted by herders themselves, in defense against the increasing encroachment of farmers into rangelands. The arid climate of the Sahel forces herders to "follow the clouds" - search for pasture and water, to engage in distant extended north-south treks, the "transhumance", recognized by traditional rules and the Islamic law (Sharia). So the herders codified their right to mobility (Art. 10) and access to pastoral resources (Art. 11). The motives of the legislation declare nomadism "comme vecteur d'un systeme de valeur culturelle". The Code embodies the central notions of the UN environmental conventions.
The Code qualifies as "best practice" because of its clarity and. Its 46 short paragraphs spell out its objective, define 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. By resorting to mediation and arbitration, the Code relies on social pressure rather than state authority, fostering social peace.
The Code contrasts with existing legislation, modeled after French legal tradition, as well as the case-law-only textbooks of Islamic law. Its genesis, reliance on traditional rights, and its form are revolutionary - possibly explaining implicit hostility of the administration to achieve effectiveness (four years).
Herder's associations and donors promote the "new-old" legislation within the population through sketches, pictogrammes, poems and songs. Early experiences seem to justify a positive assessment of its application.
Keywords: African law, Mauritania, legal drafting, best practice in drafting, common property resources, herder's rights, pastoral rights, use rights, local conventions, environmental protection, drylands, sharia, islamic law, customary rights, arbitration, traditional rights, transhumance, indigenous rights
JEL Classification: K32, K49
Suggested Citation: Suggested Citation
Wabnitz, Hans-Werner, The Code Pastoral of the Islamic Republic of Mauritania Return to the Sources: Revival of Traditional Nomads' Rights to Common Property Resources. Available at SSRN: https://ssrn.com/abstract=906985