Introduction
Having looked at the period after independence in the previous chapter this chapter also focuses on the period after independence but with specific focus on the period from 1990s. This period is key to land law as it has specific impact to the current land law. Therefore, the chapter underpins the period towards economic liberalization and its effects to the development of land law in Tanzania. The chapter also provides the objectives of the National Land Policy of 1995. It should be remembered that in 1999 the Land Acts were enacted as a result of social pressure, the national Land Policy and some of the recommendations of the Presidential Land Commission. This chapter also attempts to provide some of the recommendations that were incorporated in the Land Acts and those that were rejected.
This scheme was characterized by granting or disposition of right of occupancy in town centres and surveyed areas. [1] There was also redevelopment process under the Town and Country Planning Act (TCPA)[2] in squatters and slum areas which were converted to built up or development areas.[3] As a result there has been general engulfing of peri-urban areas by the expanding town boundaries. This was achieved by declaring such areas to be planning areas under the TCPA[4] under the assumption that any pre-existing rights would be extinguished. During the colonial era efforts at urbanization were effected inter alia through Government Circular No. 4 of 1953 which provided that ‘the intention was that in a township all the land should be alienated from tribal tenure and that Africans should obey the same laws of the territory with regard to their occupation as members of any other race.’ The disposition of land in a township became largely a matter of town planning but administrative action lied with the District Commissioner in the case of expanding townships for which new and wider boundaries were proclaimed by the Governor in dealing with the question of rights of Africans living in accordance with African customary law on land which it became necessary to include within a township.[5]
The spirit of the circular was carried over even after independence. There were massive dispossessions on the assumption that once an area is declared to be a planning area customary rights were forthwith extinguished. Allocations have sometimes been preceded by surveys and at times the allocated land did not appear in the plans. New plots not appearing in the plans were created and the existing plots sub-divided. Pressure from authorities caused allocation in open spaces, recreational grounds, school compounds, cemeteries, ecologically fragile areas i.e beaches and natural drainage areas. There was also serious double allocation as one could be given the letter of offer and another the certificate of occupancy.[6]
The Liberalization Scheme
Under the liberalization scheme the objective was to create enabling environment for free market, encourage foreign investment and private companies. It was a period overshadowed by implementation of the IMF, and World Bank policies coined in the phrase SAPs (Structural Adjustment Programmes). Following the socio-economic challenges that unfolded at the time, a Presidential Commission was formed to look into land issues pertaining to land tenure and propose recommendations. Few days after the Commission’s Report was submitted the Regulation of Land Tenure (Established Villages) Act of 1992 was passed. The effect of the Act was the land mark case of AG v. Lohay Akonay & Joseph Lohay.[7]
Among the problems identified by the Commission were conflicts between granted right and customary right, shortfalls of villagization programme (operation Vijiji), increased land disputes, land speculation by reach folks, inadequate compensations, overwhelming control of the state over land (radical title) and engulfing of village land by expanding townships and cities (urbanization).
The Presidential Commission’s Recommendations
(i) Land to be Constitutional Category
In the Report of the Commission it was proposed that land had to be constitutional category. It was proposed so due to the fact that land is an important resource. Any process to alter its rules should be the subject of a checked procedure. But also in case land was to be acquired it had to be subject of the due process of law. Hence major principles governing land should be entrenched in the Constitution. According to the National land Policy (NLP) this implied that four basic land tenets were to be entrenched in the Constitution to ensure continuity. These tenets are:- (a) all land in Tanzania is public land vested in the President as a trustee on behalf of all citizens, (b) Land has value, (c) the rights and interests of citizens in land shall not be taken without the due process of law, and (d) full, fair and prompt compensation shall be paid when land is acquired.[8] This was intended to strengthen the security of land tenure. This could also protect land from political and administrative decisions as constitutional amendments attract broader public attention. Therefore it could bring land into the centre of democratic governance.
(ii) Diversification of the Radical Title
Since the German colonialism land has been under the monopoly of the state. The Commission was of the view that monopoly over land should no longer be vested in the political entity, the President. Land had to be divided into national lands and village lands. The National Lands were to be under the National Land Commission which was to be governed by a Board of Commissioners in trust for the use and benefit of all Tanzanians.
(iii) The Status of the National Land
The National Land Commission was to be politically accountable to the National Assembly which actually meant its political trust was to the National Assembly. On the other hand it was to be legally accountable to the people of Tanzania
(iv) Management of Village Lands
Village lands were to be under the respective village assemblies in trust for the use and benefit of the villagers. The village assembly was considered to be more democratic as it is not an executive organ. The village assembly was deemed to have a legal trust and if it breached the trust it could be sued accordingly.
(v) Status of Village Lands
Village lands were to be inalienable to outsiders. One had to become a member of the particular village to be able to acquire title in a village land. The governance and regulation of village land was to be under customary tenure. Hence land could be claimed under customary law and was to be allocated by village authorities in this case village councils. Village land were to be capable of registration in the Register of village land and a certificate was to be issued HAM (Hati ya Ardhi ya Mila) i.e certificate of customary right of occupancy. Due to the need to watch against land speculation it was considered necessary to have limitation on the amount of land a person could hold and procedures for disposing the same. The amount proposed was 200acres.
It was also proposed that the certificate of customary right of occupancy had to be negotiable and transferable except to outsiders. All transfers were to be registered with the village land registry in order to make them legal. The certificate was capable of being used as collateral within village. Inalienability of certain lands eg conserved lands was to be observed. For the sake of sound management of land and environmental resources it was recommended that joint agreements for management of common areas e.g pasturelands were to be encouraged. Compulsory acquisition of land for public purposes had to be subject to compensation for unexhausted improvements. The phrase public purpose which had been inadequately defined should be clearly defined in law. Cognizant of the villagisation programme and the need to legitimize its outcomes in order to put to an end any possible litigation it was proposed that clear provisions had to be drafted to that effect.
(vi) National Lands
Two forms of tenure namely, granted right of occupancy and customary right of occupancy in urban periphery / squatter could exist. Customary right was to have the same security of tenure as granted right of occupancy in that it should be negotiable and act as useful collateral. Allocation should be guided by registration, planning, surveying and certification. Rights of occupancy should be transferable with the consent of the District / Ward Land Officer. In case of compulsory acquisition the victims have to be compensated for unexhausted improvement in a price which is closer to the market price and alternative land should be allocated.
Reaction to the Commission’s Report
Some recommendations were accepted and others rejected. These include:-
(i) Land being constitutional category as it is yet to be enacted into the law,
(ii) Diversification of the radical title e.g National Land and Village Land
(iii) Village land has been vested under Village Councils instead of Village Assemblies as was recommended,
(iv) The principal land officer is the Commissioner for land and not the National Land Commission and Board of Land Commissioners and the village assembly,
The Report however formed the basis for the National Land Policy (1995) and a considerable input from it informs the contents of the Policy.
The Land Policy 1995
Changes in land use and the increase in human population have increased the demand for land and competition for plots especially in and around major urban areas. Growth in livestock population which has caused conflicts with farmers, caused soil erosion, and increased the demand for grazing land, Increased urbanization which requires land for settlement, industries and commerce have intensified competition for land in urban areas. Upsurge of prospective investors wishing to acquire large pieces of land as a result of the investment promotional policy, un attended effects of operation vijiji, increased awareness of the people on the value of land; development of land markets which require recognition and regulation to enable the Government to benefit, variation in land prices which is contributed by location and land quality but not legally reflected; evolution of customary tenure to more individualized ownership which has increased land markets; adoption of political pluralism, new economic and social policies and uncertainty in land rights called for the need to protect individual land rights; Court decisions affirming the status of customary land right against the granted land rights.[9]
The Policy retains the four tenets of land maintained such as land is publicly owned and vested in the President as a trustee on behalf of the citizens; speculation in land is controlled; statutory and customary rights of occupancy to continue; title to land to be based on use and occupation.
Objectives of the Land Policy (1995)
The overall aim of the policy is to promote and ensure secure land tenure system, encourage the optimal use of land resource and facilitate broad-based socio-economic Development without affecting the environment. The policy provides the specific objectives which are:- Promote equitable distribution and access to land by all. Ensure existing rights in land especially customary rights are recognized and secured in law. Set ceiling on land to control grabbing. Ensure land is productively used, Improve the efficiency of land delivery systems, Improve the institutional set-up of land administration and adjudication, The Policy has elaborate statements on issues of land tenure, gender, access/ownership, constitutionality, compensation, disputes settlement etc. The Land Commission and the NLP informed the process of the enactment of the Land Acts. Although some of the recommendations were not considered but most of the issues were covered in the Acts.
Categories of Public Land
All land is public land vested in the president as a trustee for and on behalf of all the citizens of Tanzania.[10] Public lands have been divided into three: (i) Village land, (ii) General land
Transfer of General or Reserved Land
General and reserved lands can be transferred to village land. Transfer of any area of general or reserved land to village land require the Minister to do the following:- (i) cause a notice to be published in the Gazette and sent to the Village Council of the village to which general or reserved land may be transferred. The notice must specify (a) the location of the transferred land; (b) the boundaries and extent of the transferred land; (c) a brief statement of the reasons for the proposed transfer; (d) the duration of the notice being not less than sixty days from the date of the publication of the notice, before the President can transfer the transferred land or part of it.
Transferred of reserved land, require a copy of the notice to be sent to (i) the Minister responsible for that reserved land; or (ii) a local authority where a local authority is responsible for that land; and (iii) persons occupying and using that land. The language must be simple to be understood by such affected persons. Transfer of general land, require a copy of the notice to be served upon the (i) local authority in whose area the land is situated; (ii) the holder of any right of occupancy in that land; (iii) the holder of any derivative right in that land; and (iv) any person occupying or using that land under customary law. Where there are persons who will be affected the notice must equally be in a simple language to be understood by those persons.[13] A transfer of general or reserved land to village land must be notified in the Gazette and will come into effect 30days after the date of the publication of the notice.[14]
Any person who has received a notice may between 20 and 40days from the date of the receipt of the notice, may make representations to the Commissioner or an authorised officer who shall hear and record the representations and take them into account in any report prepared for the President on the proposed transfer. The Commissioner will then prepare a report for the Minister to submit to the President on the proposed transfer. In case the matter relates to reserved land, a copy of the report has to be conveyed to the Minister responsible for that reserved land.[15] After the President has read the report he may continue transferring the land as planned.[16] The President can also require an inquiry to be made and during such period no action can be undertaken regarding such land.[17] If the transferred land includes a land held under the granted right of occupancy unless the instrument of transfer provides otherwise, the transfer operate as a compulsory acquisition of that right of occupancy and compensation on it has to be paid.[18]
Where a general land which was being occupied under customary right of occupancy has been transferred to village land, the mere transfer of that land to a village land does not automatically operate to determine or affect the rights of such persons to continue to occupying and using that land although the land will be under the jurisdiction of the Village Council of the village to which the land has been transferred.[19]
A village land may also be transferred to general or reserved land in accordance with the provisions of the Village Land Act.[20] Such transfer can be for public interest which includes investments of national interest. The law requires the Minister to cause a notice specifying the location, the boundaries, and reasons for the transfer and the minimum duration of 90 days before the transfer.[21] In case a village land is transferred to general or reserved land under section 4 of the Act or is declared to be hazard under section 6 of the Act and the village council has determined that the villagers shall be required to vacate that hazard land or part thereof, compensation has to be paid. Such compensation can be paid to:- (a) the village council on behalf of the villagers in respect of the loss of communal land, assets and benefits derived from that communal land; or (b) any villager occupying transferred land or hazard land under a customary right of occupancy whether that customary right of occupancy is registered or not.[22] The basis for assessment of the value of any land and unexhausted improvement for purposes of compensation, under the Act shall be the market value of such land.[23] Also the Commissioner must serve a notice to the village councils and on all persons occupying land under a customary right of occupancy or a derivative right within the area of land covered by a the notice of proposal to transfer village land or, as the case may be, a notice to declare land as hazard land inviting the village council and all such persons to submit claims for compensation.[24] A claim for compensation has to be submitted on the appropriate form within not less than 60 days of the receipt of the notice.[25] The Commissioner is required within not more than ninety days from the date on which the claims of compensation are submitted determine whether to accept or reject those claims or any of them.[26]
In case a land which is subject of the transfer is allocated to a villager or group of villagers under customary right of occupancy the Village Council of the respective village has to notify the occupier(s) of such notice. In case the occupier is absent they have to inform a member of the family occupying or using the land with the villager of the notice.[27]
Any person dissatisfied can make representations to the Commissioner and the village council on the proposed transfer and such representations must be taken into account in any decisions or recommendation that may be made.[28] Where the land to be transferred is less than 250 hectares the village council must seek a recommendation of the district council before submitting to the village assembly for approval but where the land exceeds 250 hectares, it has to be approved by the Minister after considering recommendations of the village assembly, village council and district councils as the case may be.[29]
Prior to the transfer, the type, amount, method and timing of the payment of compensation must have been agreed upon.[30] After the relevant body has, by resolution, approved the transfer of the village transfer land or a part of it, the President may exercise his Power to transfer that village land or a part of it to general or reserved land.[31] Also the President may direct the transfer of any area of general or reserved land[32] to village land subject to the provisions of Section 6 of the Land Act.[33]
The Land Policy puts it emphatically that in allocating land, village councils have been guided by customs and have continued to discriminate against women by allocating land to heads of households who are usually men… thus in order to enhance and guarantee women's access to land and security of tenure, women will be entitled to acquire land in their own right not only through purchase but also through allocation.[34] Subsequently the Acts have recognized the right of every adult woman to acquire, hold, use, and deal with land to be of the same extent and subject to the same restrictions as a right of any man.[35] Accordingly, any discriminatory customary rule that contravenes this principle is illegal. Although the Policy acknowledges application of customs and traditions in inheritance of clan or family land[36] such application is subject to being non-discriminatory. Even where it is discovered that a decision of a public officer vested with functions to administer land or an adjudicating authority was actuated by bias or favouritism it can be challenged for being illegal.
The Presidential Commission of Enquiry into Land Matters recommended two forms of tenure that is to say the right of occupancy and customary right. On the relationship between the two it stated that…the land tenure system is based on multiple land regimes all existing side by side and none of which shall be considered superior to the other and interests under each of the shall enjoy equal security of tenure under the law… The National Land Policy (1995) provide further that a dual system of tenure which recognizes both customary and statutory rights of occupancy as equal in law should be established. Eventually the Land Acts retain the two forms of tenure namely, the granted right of occupancy and customary right of occupancy. Section 2 of the Land Act provide that a right of occupancy means a title to the use and occupation of land and includes the title of a Tanzanian citizen of African descent or a community of Tanzanian citizens of African descent using or occupying land in accordance with customary law; it also define the deemed right of occupancy as the title of a Tanzanian citizen of African descent or a community of Tanzanian citizens of African descent using or occupying land under and in accordance with customary law. Thus, customary right of occupancy includes the deemed right of occupancy although it is not allocated by the Village Council. To make it clear section 2 of the Village Land Act defines customary right of occupancy as a right of occupancy created by means of the issuing of a certificate of customary right of occupancy under section 27 of this Act and includes deemed right of occupancy.
FOOT NOTES
[1] Consider the cases of Suzan Kakubukubu, Methusela Nyagwaswa and Mwalimu Omari supra which virtually involved urbanization.
[2] Cap 355 RE 2002
[3] Land can be acquired under section 34 of the land Acquisition act 47/1967.
[4] See sectionn 27 of the TCPA and the third schedule to the Act
[5] Para 12 of the Circular.
[6] See Anna Benedict vs Sefu Mrisho alias Shaffi mrisho CA, DSM Civil Appeal No 41 (1976) unreported and Hamisi Sinahela vs. Hasan Mbwele (1974) LRT 28, Premji,vs Calico Textile Industries Ltd High Court DSM Civil Case No. 5 of 1978, Patman Garments Industries Ltd vs Tanzania Manufacturers Ltd (1981) TLR 303.
[7][1995] TLR 80
[8] See NLP Clause 4.1.1
[9] See AG v. Lohay Akonay and Joseph Lohay [1995] TLR 80
[10] Section 4(1) of the Land Act
[11] Ibid section 4 (4) of the Land Act
[12] Ibid section 5 (1) and (7), and section 4&5 of the Village Land Act.
[13] Ibid section 5(5)
[14] Ibid section 5(11)
[15] Ibid section 5(6)
[16] Ibid section 5(9)
[17] Ibid section 5(10)
[18] Ibid section 5(7)
[19] Ibid section 5(8)
[20] Section 12(1) of the Village Land Act, see also Village Land Form No. 8 and 9 on notice of intention to transfer village land to general land or reserved land
[21] Ibid section 12(3)
[22] See Reg 8 GN 86/2001
[23] Ibid Reg 9
[24] Ibid Reg 20
[25] Ibid Reg 21
[26] Ibid Reg 23(1)
[27] Ibid section 12(4)
[28] Ibid section 12(5)
[29] Ibid section 12(6)
[30] Ibid section 12(8)
[31] Ibid section 12(9), see form no 12 on application for compensation by village council
form no 13 on approval for compensation, form no 14 on notice to land occupier to apply for compensation, form no 15 on application to apply for compensation by land occupier.
[32] Reserved land refers to land reserved under any of the conservation laws. It includes:-(a) land reserved, designated or set aside under the provisions of the:- (I) Forests Act (10); (ii) National Parks Act (11); (iii) Ngorongoro Conservation Area Act (12); (iv) Wildlife Conservation Act (13); (v) Marine Parks and Reserves Act (14); (vi) Town and Country Planning Act (15); (vii) Highway Act (16); (viii) Public Recreation Grounds Act (17); (ix) Land Acquisition Act (18); (b) land parcel within a natural drainage system from which the water resource of the concerned drainage basin originates; (c) land reserved for public utilities; (d) land declared by order of the Minister, in accordance with the provisions of this Act, to be hazardous land.
[33] Section 5 of the Land Act.
[34] National Land Policy (1995) at 12.
[35] Ibid section 3(2) of the Land Act and the Village land Act.
[36] National Land Policy (1995) at 12.
Report on Presidential Commission of Inquiry into Land Matters (1994) Vol I & II
- Fimbo, G.M. (1997) "The Making of a New Land Act in
- Fimbo, G.M. (2000) "The Land Delivery Systems in the Two Acts: The Land Act 1999 and the Village Land Act 1999", the Tanzania Lawyer, January 2000 p.11-24; UDSM ,Nyerere law Journal Vol. 1 NO. 9 November, 1999.
- Shivji, Not yet Democracy: Reforming Land Tenure in
- Shivji, I.G. (1994) A Legal Quagmire:
- Fimbo, G.M. (1997) "The Making of a New Land Act in
- Lawyer, February May, 1997, p. 30-41.
- Tenga, R.W., (1988) Land Policy and Law in
- Gondwe, Z. S. Land Allocation in
- Gondwe, ZS. (1993) Planned Development in
- WR Tenga Processing a Land Policy: The Case of Mainland
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