1

DEVELOPMENT OF AWQĀF IN TUNISIA (1784-1957)

BY

Muhammad Amin A. Samad

Dr. R.N. Verdery Social Institutions of Islam:

April 10, 1975 Awqāf (397-706D)

Institute of Islamic Studies

McGILL UNIVERSITY

2

INTRODUCTION

This paper attempts to give illustration on the condition of the waqf in

Tunisia since it became a French protectorate until its independence. I shall divide this paper into three parts: waqf before French protectorate,

during protectorate and after independence.

Before the establishment of the French Protectorate there were two

kinds of courts in Tunisia: a. religious court (chara, shar‘) which administered Islamic law and decided cases of personal status, succession,

private ownership, and habous (h.ubs); b. secular court (ouzara, wizārah),

which dealt with criminal and other civil cases.1 Those who were not

Muslims attached themselves to their own rules of personal statute2 that

created confusion. It was hoped that time would come where all Europeans

in Tunisia would follow French laws, except the Muslims and the Jews

who were to keep their personal statutes.3

There were three types of land in Tunisia:

a. Private property (melk, milk). It included public domain that was distributed among farmers by Minister Khayr al-Dīn, especially in

Zaghwan territory, where each of them received 20 hectares.4

Wasteland which was considered “dead” and belonged to no one could be possessed through cultivation. Melk land were subject to tithe

(achour, cushur), which resembled freehold property, while arch lands

which resemble leasehold property were subject to tribute (kharaj).5

b. Tribal or Communal lands. These lands belonged to tribes who lived

in them, whose boundaries were known by neighbouring people

without any need for erecting markers,6 and located in Southern

territory, occupied by nomads and semi-nomads. These tribal lands

could not be alienated.7 This Southern (High Steppes) territory was

poor,8 and only esparto and coarse scrubby grass grow, most of which

was used for sheep in winter, but was burned by sirocco, the hot wind

which blows from the sahara in summer.9

c. Habous lands. These lands at one time were not less than 4 million ha. soil of Tunisia.

10 Some of private lands were turned into habous

(especially the private habous) by their owners, either settlers or

nomads, to avoid the risk of confiscation by the ruler (the Bey) or a

3

powerful neighbour, as habous is perpetual, inalienable, and exempted from tax.

11

Public habous, until 1874, was entrusted to the management of oukils (wakīls) appointed by H.E. the Bey. They managed reports on the

estate, set the revenue apart for beneficiary works instituted by the

constituent. Due to mismanagement Khayr al-Dīn abolished the oukils administration of the public habous in March 19, 1874, and formed a

jemaia (jamciyyah) which controlled the revenue of the public habous.

12

The private habous was administered by a moqaddem. As he

received very little for his serviced he did not care and manage tao make the land productive. Therefore there was a great amount of unused lands.

13

French private colonization in Tunisia started in 1878, when the Société Marseillaise brought the great estate of Enfida from Khayr al-Dīn

which had an area about 96 000 hectares.14

The French took over Tunisia

in 1881 as their major step in building the Second French Empire.15

As their method of control was a Protectorate, they kept the existence of

Tunisian government under their control. They issued laws as beycal

decrees.16

To smooth native susceptibility the Resident issued all decrees in the name of Allah and His Highness the Bey.

17

It had been customary to draw up a sort of affidavit (outika, wathīqah) when a piece of land was bought or when the documents of the

title were lost.18

This system of wathīqah and shar‘ were not satisfactory

for the French in their land case. Therefore, Cambon19

set forth the Land Registration Act in July 1885, a degree introducing registration of land

founded on the Torrean system.20

All landowners were to register their

property through a special tribunal mixte (mah.kamah mukhtalat.ah),

consisting of three French and three21

Tunisian judges, in addition to three

French magistrates, i.e., a president, a vice-president, and a reporter. The owner of private lands, including habous were to apply to the protector of

land property. The application of the claim was announced through publication in Arabic and French in the Journal officiel tunisien, and a

period of 45 days was allowed to elapse to know if there was any

challenge or any consideration. Then a survey on the claim was made. If sixty days had passed without any challenge, and if the tribunal granted the

4

application, the protector (conservateur) issued a certificate known as a titre bleu (blue title) to the landowner. All rights of property were recorded

on the certificate and abrogated all previous claims. The Tunisians and all

other landowners and claimants took their cases before the Tunisian and French judges respectively, except in case a Tunisian was involved in a

dispute, two Tunisian and two French judges handled the case.22

As the decision was given by the tribunal was final, and the period

for the challenge or any other consideration was not enough for the Tunisians to present their supporting evidence of their property, if they had

any, many of them lost their lands.23

From 1886 to 1937 there were 22,897 applications for registration

which were received, covering the area of 6,071,112 acres with a value of

797,852,239 francs; 18,624 certificates of title were granted, covering the area of 3,722,486 acres with the value of 577,498,207 francs.

24

To promote colonization the French used devices to overcome the prohibition of alienation of the habous, i.e., substitution, leases, and enzel

(inzāl).25

According to H.anafī school the habous is substitutable. This law was

adopted with issuing a decree in 1898, where the habous and the enzel could be exchanged for money to purchase a new property, which could be

in turn put into habous. In this way productive land could be exploited in

exchange for non-productive one.26

There are two kinds of substitution: substitution of the same nature,

i.e., one in which the habous land is exchanged with another at least of the same value; the jemaia give their evaluation, and if it is profitable for the

foundation it is submitted to the approval of H.E. the Bey. Otherwise, the

suggestion for substitution is rejected.27

The other kind of substitution is substitution in kind, i.e., with

something else of different kind, and this could happen only through public auction, preceded by sufficient announcement (advertisement), and

with fixed price set by experts and accepted by the demander.28

If the

habous land happened to be exchanged for a profitable building, then it

5

was rented to the administration of colonization (idārat al-isticmār) with

low price.29

Another device to overcome the prohibition of alienation of the habous is the use of lease. There are two kinds of lease: ordinary lease and

long-term lease:

a. Ordinary lease: urban estates were rented through public auction for a maximum period of three years. Actually, they could be rented for

three, six, and even nine years. 30

b. Long-term lease: the decree of January 31

st, 1898 provided this long-

term lease. Habous land suitable for agriculture could be rented, as the

initial period, for ten years. Then it could be renewed twice for a maximum of thirty years. At the end of the lease, the land returned to

the care of its mutawalli.31

According to the decree of 1898, a lease should be preceded by a

large publication and then public auction; at the expiration of the first ten

year period, the tenant can ask for renewal without auction for another ten year lease ‘on condition that he is to bear the addition of 20% of the rent.” 32

this long term lease can give the tenant, at the end of the first ten year

period, a right to transfer the lease into enzel without auction “and with the approval of technical people.”

33

A long-term lease which led to perpetuity is called enzel. The owner of a lease is held to pay a certain amount of money every year to the owner

of the habous. He is neither a tenant, for his title is not perpetual, nor an

owner, for the habous cannot be alienated.34

The decree of enzel rights issued by the Bey in 1888 was directed against the unused habous. The

holder of the enzel could build a building in the area.35

This public auction of the habous touched the natives’ religious

feelings and interest since, unlike the colons who were usually the highest

bidders in the auction, they could not compete with the higher prices bid by the colons.

36

According to a decree issued in 1898 the jemaia (the public habous administration) was to hand over 2,000 hectares of lands annually to the

6

State domains administration “for agricultural purpose”, which were in turn to be sold to settlers on easy terms of credit.

37

In 1903 the jemaia was directed to accept applications for enzel rights on cultivated land;

38 in July 17

th, 1908, a decree was issued in which

the activity of the jemaia was under the supervision of the Supreme

Council of the habous;39

by this year, 108,000 acres were handed over to Europeans, and 38,000 acres to Tunisians by means of enzel.

40

Theoretically, the habous (especially the public one) had been controlled by the state since 1830.

41 As for the private habous a decree was issued in

June 22, 1938, to reform its management in order to secdure good

adjustment and effective control of the mokaddem.42

The communal (tribal) lands in Tunisia were about four million

hectares, which were about one-third of the total lands of Tunisia.43

When the French came and bought lands including the habous at the High Tell,

44

summer grazing b3ecame less until there was not enough grass for the

flocks. Tribes which did not migrate to the north (the Tell) in summer remained in the Steppes faced disaster, as they had not enough grass for

their sheep. Many of them lost their sheep, and tried to find work in the

cities.45

In January 1901 the ruler issued a decree that all the collective lands

of the tribes belonged to the state.46

In February 22, 1904, this decree was

supported by a tribunal mixte, which declared that the tribes had no rights on these lands, as they had no legal status, and as they were not organized

groups. So, these lands were registered as state lands and subject to sale.47

The decree of 1926 abolished the inalienability of tribal lands, and this led to encouragement of private ownership.

48

In 1956 Tunisia became an independent state, and its first president was Bourguiba,

49 who tried to be a great Muslim reformer like

Muh.ammad cAbduh.

50 It was through his request that the article 1 in the

constitution read “The Tunisian state is free, independent, and sovereign.

Islam is its religion and Arabic is its language.”51

In May 31st, 1956, Bourguiba issued a decree to abolish the public

habous. The jemaia was abrogated, and 150,000 of its lands, which finance the mosque and other charitable institutions, were transferred into

7

the state property.52

The habous had been attacked a long time ago because of its economic ill management and being a very easy means to turn away

the law of succession.53

In July 18, 1957 Bourguiba issued a decree to abolish the private

habous. There were 1,500,000 hectares of private habous land at that time.

This land was divided among the heirs with fair share to women. As for the tenants who had long occupied the land, the government respected

their de facto rights.54

8

ENDNOTES

1Naval Intelligence Division, Tunisia (Geographical Handbook Series, for

official use only, February, 1945), p. 159. 2The Jews with Talmud, the Italian with Civil Code of Italy, the French with

continental law, and the Maltese with Maltese Code of the knight of Rohan (le code

maltais de chevalier de Rohan) which was modified by English ordonnance, see Paul

Leroy-Beaulieu, L’Algérie et la Tunisie (Paris: Guillaumin et Cie, 1897), p. 471. 3 Ibid.

41 hectare is equal to 2.471 acres. See al-H.abīb Thāmir, Hādhihī Tūnis (Cairo,

19438), p. 43. Jean Despois, L’Afrique du Nord (Paris: Presses Universitaires de

France, 1964), 3rd

ed., p. 151. Before French protectorate there was no “state

domain”, as “dead lands” were considered in the possession of the Muslim

community, see R. Jambu-Merlin, Le Droit Privé en Tunisie (Paris: Institut de Droit

Comparé de l’Université de Paris, 1960), p. 315 5Naval Intelligence Division, Tunisia, p. 160; Despois said that this “dead”

land belonged to tribal lands, see Jean Despois, L’Afrique du Nord, pp. 151 and 171. 6Charles C. Harber, “Tunisian Land Tenure in the Early French Protectorate”,

The Muslim World, vol. lxiii (July, 1973), p. 312; al-H.abīb Thāmir, Hādhihī Tūnis, p.

45. 7P. Gillin, “Histoire de la Colonisation Française” Encyclopédie de l’Empire

Français, l’ Encyclopédie Coloniale et Maritime: Tunisia (Paris: 1944), 4th ed. , p.

126. 8The annual rainfall is about 16 inches, and sometimes there is no rain at all,

see Thomas Hammerton, Tunisia Unveiled (London, 1959), p. 161. 9 Another harmful wind, tramontana, blows from the north, is cold and brings

no moisture with it, see ibid., pp. 73-74 and 161. 10

Al-H.abīb Thāmir, Hādhihī Tūnis, p. 42, and P. Gillin, “Histoire de la

olonisation,” p. 126. 11

Jean Despois, L’Afrique du Nord, pp. 151 and 172; Charles C. Harber,

“Tunisian Land Tenure”, p. 308; R. Jambu-Merlin, Le Droit Privé, pp. 293 and 300;

Wilfrid Knapp, Tunisia (London: Thames and Hudson, 1970), pp. 113-114. 12

Charles C. Harber, “Tunisian Land Tenure”, p. 308; R. Jambu-Merlin, Le

Droit Privé, p. 296; Mohamed Saadallah, “L’Œuvre des Habous”, ” Encyclopédie de

l’Empire Français, l’ Encyclopédie Coloniale et Maritime: Tunisia (Paris: 1944),

4th ed. , p. 162. 13

Charles C. Harber, “Tunisian Land Tenure”, p. 309. 14

Nicola A. Ziadeh, Origins of Nationalism in Tunisia (Beirut: American

University of Beirut, 1962), p. 39; another piece of land bought by the Société

Marseillaise was Sidi Tabet, see Charles C. Harber, “Tunisian Land Tenure”, p. 309. 15

Charles C. Harber, “Tunisian Land Tenure”, p. 307. 16

Dwight L. Ling, Tunisia, from Protectorate to Republic (Bloomington and

London: Indiana University Press, 1967), p. 51.

9

17

Herbert Vivitan, Tunisia and the Modern Barbary Pirates (London: C.

Arthur Pearson Ltd., 1899), p. 32. 18

Naval Intelligence Division, Tunisia, p. 160. 19

Paul Cambon was Resident General of France in Tunisia from March 1882

till November 1886, see” Encyclopédie de l’Empire Français, l’ Encyclopédie

Coloniale et Maritime: Tunisia, p. ix. 20

Sir Robert Torrens, a governor of Southern Australia created the Torrens

Land Act in Australia and had been applied since 1885. This system was adopted

partially in Tunisia and without compulsion, see Naval Intelligence Division, Tunisia,

p. 185; Dwight L. Ling, Tunisia, p. 65; Wilfrid Knapp, Tunisia, p. 114. 21

According to Thāmir, there were two Tunisian judges, see al-H.abīb Thāmir,

Hādhihī Tūnis, p. 42 (footnote). 22

Naval Intelligence Division, Tunisia, p. 185; Charles C. Harber, “Tunisian

Land Tenure”, p. 310; al-H.abīb Thāmir, Hādhihī Tūnis, p. 42. 23

Al-H.abīb Thāmir, Hādhihī Tūnis, p. 42 (footnote). 24

Naval Intelligence Division, Tunisia, p. 185. 25

Ibid., pp. 185-6. 26

Dwight L. Ling, Tunisia,p. 64; P. Gillin, “Histoire de la Colonisation,” p.

126; R. Jambu-Merlin, Le Droit Privé, p. 327; and Nicola A.. Ziadeh, Origins of

Nationalism, p. 42. 27

Mohamed Saadallah, “L’Œuvre des Habous”, p. 163; Naval Intelligence

Division, Tunisia, p. 186. 28

Mohamed Saadallah, “L’Œuvre des Habous”, p. 164; Naval Intelligence

Division, Tunisia, p. 186. 29

Al-H.abīb Thāmir, Hādhihī Tūnis, p. 47. 30

Mohamed Saadallah, “L’Œuvre des Habous”, p. 163. 31

Ibid. Dwight L. Ling, Tunisia ,p. 64. 32

“à condition de supporter une majoration de 20% sur le loyer”, see

Mohamed Saadallah, “L’Œuvre des Habous”, p. 163. 33

“et à simple dire d’experts,” see ibid. 34

Herbert Vivitan, Tunisia, p. 625; Naval Intelligence Division, Tunisia, p.

160. 35

Charles C. Harber, “Tunisian Land Tenure”, p. 311. 36

Ibid., pp. 311 and 315; Naval Intelligence Division, Tunisia, p. 186; P. Gillin,

“Histoire de la Colonisation,” p. 128. 37

Clement Henry Moore, Tunisia since Independence (Berkeley and Los

Angeles, University of California Press, 1965), p. 50; R. Jambu-Merlin, Le Droit

Privé, pp. 327-328; al-H.abīb Thāmir, Hādhihī Tūnis, pp. 46-47. 38

Charles C. Harber, “Tunisian Land Tenure”, p. 311. 39

R. Jambu-Merlin, Le Droit Privé, pp. 327. 40

Charles C. Harber, “Tunisian Land Tenure”, p. 311. 41

Ibid., p. 309.

10

42

. Jambu-Merlin, Le Droit Privé, pp. 327. 43

Al- H.abīb Thāmir, Hādhihī Tūnis, p. 46. 44

Tunisia is cut into two districts by the Atlas Mountains: the High Tell in the

north and the High Steppes in the south. The High Tell is fertile area (“Tell” means

“rich” in the Berber dialect) as there is enough rain for crops and grass, and is

protected by the mountains from the burning sirocco wind in summer. Nomads used

to drive their flocks into this area for grazing. The High Steppes is only suitable for

grazing in winter; see Thomas Hammerton, Tunisia Unveiled, pp. 161-162. 45

Ibid. 46

Al- H.abīb Thāmir, Hādhihī Tūnis, p. 45; Charles C. Harber, “Tunisian Land

Tenure”, p. 312; Ih.sān H.aqqī, Tūnis al-cArabiyyah (Beirut: n.d.), p. 221.

47Nicola A. Ziadeh, Origins of Nationalism, p. 42; l- H.abīb Thāmir, Hādhihī

Tūnis, p. 46. 48

Jean Despois, L’Afrique du Nord, p. 174. 49

Connaissance du Monde Arabe, “La Tunisie” (Ottawa: Documentaire Publié

par le Centre d’Information Arabe, n.d.), p. 69. 50

Clement Henry Moore, Tunisia since Independence, p. 49. 51

Ibid., p. 50. 52

Ibid; Jambu-Merlin, Le Droit Privé, pp. 335, see also the footnote; Jean

Despois, L’Afrique du Nord, p. 174. 53

Jambu-Merlin, Le Droit Privé, pp. 335. 54

Ibid; Clement Henry Moore, Tunisia since Independence, p. 53.

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