Introduction
This posts is intended to give a conceptualized framework on the pre-colonial land systems in Tanzania
Overview of Land
Agriculture has always been considered as the backbone of the Tanzanian economy. More than 80% of Tanzanian population depends on agriculture for their livelihood. Agriculture contributes 46% to the Country’s GDP and about 60% of foreign exchange. Even the industrial sector has to a large extent depended on agriculture for its raw materials. It is estimated that Tanzania
The average land holding is 0.2 to 2 hectares per household. Limitation in availability and access to modern technology is a major obstacle to expansion of land under crop cultivation. For example, 70% of farmers still use a hand hoe for tilling the land, 20% use animal draught ploughs and only 10% use tractors. Irrigation technology, despite its potential in raising production, and its subsequent contribution in reducing poverty, is still underdeveloped. Tanzania Tanzania
Despite the various tribes and the population we have, only a small portion of the land has been occupied and put under effective use. The rest is unoccupied land. The significance of land in society puts it at the centre of debates as to the rules governing its ownership, management and disposition. Recent CIA report indicates that total Areas of Tanzania is 945,087 sq km. Out of that: Land occupies of 886,037 sq km while water occupies 59,050 sq km. On land use: arable land:4.23% permanent crops: 1.16% other crops 94.61%.
While that has been the trend in Tanzania Mainland, The land tenure history of Zanzibar Zanzibar Islands . They crossed over from the Mainland in canoes. Before 1830s the inhabitants of Zanzibar were: the Pemba on Pemba Island the Tumbatu on Tumbatu Island ; and the Hadimu-who inhabited most of the Zanzibar Island
Local custom regarded all land as being communal, incapable of permanent alienation and merely conferring upon its occupants a limited usufructuary right. The Hadimu had no concept of private ownership but regarded all their land as the permanent and inalienable property of the community. According to their custom land could be held by a person during his lifetime as long as he made use of it but it never became his private possession. Due to its proximity to the East African Coast Zanzibar Oman transferred his capital from Arabia to Zanzibar
Throughout its early history Zanzibar was organized by native kingships. People lived in self ruled villages. Shao suggests that before the arrival of the Arabs in Zanzibar
However, the oldest existing land rights originate from the Shirazi group. Without considering the many variations of land tenure of Shirazi it can be categorised as the first main type of pre-revolution land tenure. The second main type, the land tenure of the plantations, emerged from slavery and clove farming.[6]The main land tenure types and their brief history are presented in the next two chapters.
Shirazi tenure mainly existed in remote areas, such as coral rag areas that had no cloves. Farms were possessed and strongly guarded by the descendants of the founder of such property i.e. a person who first planted trees on it. There were systems of strong protection of this type of holding.[7]The group did not lose its possession even when moving away from the area in question. The land was also transferable through anonymous sale and in fact that was common in cases where the descendants moved away. The properties were not static and new ones were formed according to the need. The farming area was open for new settlements to be established. Only residential and graveyard sites were customarily to be kept solid.
Shao devides the Shirazi tenure into two types: the family ownership type and the group ownership type.[8]The bush and the garden lands were traditionally communally held and owned by a group whereas the wards were always family owned.[9]
Significance of Land
Socio-economic Significance
Generally, each tribe has been occupying land for various uses such as cultivation, grazing, hunting/gathering or residential. Since time in memorial land has been the subject of pride and symbol of wealth. It has economic value in term of use for agriculture and grazing; social value as it binds families together, clan and society across generations. It is the place of birth, living and even death. Ownership and control are about structure of social and cultural relations in struggle for livelihoods, Land tenure revolve around structure and dynamics of lineages and cultural communities. For land is regarded not merely as a factor of production, but first, and foremost, as the medium which defines and binds together social and spiritual relations within and across generations. Issues about ownership and control are therefore as much about the structure of social and cultural relations as they are about access to material livelihoods. This is one reason why debate about land tenure in Africa has always revolved around the structure and dynamics of lineages and cultural communities, rather than on strict juridical principles and precepts. For this reason, control over land and associated resources constitutes, in social and cultural terms, sovereignty over the very spirituality of society.[10]
For instance, in socio-economic terms the basic unit of production in the agricultural areas is the small-scale family holdings. Such holdings are typically held under customary tenure; a land rights system which varies from one ethnic community to another and from one region to the other. The majority of the ethnic communities, however, recognise continuous use of specific areas of land under the control of the family or some larger units as the basic land tenure principle. The right to hold and work such land is secured for as long as the land is occupied and cultivated. Generally, when such occupation and cultivation cease, the land reverts to common ownership and may be reallocated to other users.
Land has also been a symbol of political power as it constitutes sovereignty. Even before colonisation, land was always an important factor in the political organisation of societies, underlying and hence reinforcing the political significance of land. Land relations in pre-colonial era may be classified in a number of ways, some of which are unique to particular communities. The first were relations based on feudalism. An essential feature of this system was that access to land was controlled by an oligarchy in which political power in society was exclusively vested. Security of tenure for land users was, therefore, based on continuous loyalty to that oligarchy. The payment of tribute in the form of produce and gifts was therefore not unusual and, indeed, a requirement as evidence of that loyalty. At the time of colonization, this system of land relations was fully established in and unique to the areas like the Chagga under the kihamba and the nyarubanja tenure in Lake Zone.[11]
The second were systems based on territorial control in which access to land resources was governed by a complex network of reciprocal bonds within families, lineages and larger social units. The primary function of those organs, rather, was to protect and guarantee individual and community rights as prescribed by custom. As long as such bonds remained, any individual or group of individuals could secure access to the resources of that community.
The third were the systems of land tenure prevalent in the non-feudal sedentary communities. Because these communities were and still are agricultural or semi-agricultural, land relations were defined not only by the network of social relations prevalent in each community, but also by the specific uses to which parcels of land occupied by individual families, clans or lineages were put. Tenure relations, therefore, recognized individual rights as well as community obligation in virtue of access to such rights.[12]Common to all three systems of land relations was the fact that radical title to land was always vested in the community as a corporate entity rather that in the political organs through which control of the territory or the resources of the land was exercised or mediated.
Acquisition of Land Rights
Pre-colonial societies in Tanzania Mainland have had ways of acquiring and using land for different uses eg agriculture, hunting and gathering and grazing. Land holding was based on traditional law and the culture of each tribe. To a larger extent land was communally owned. Every member of the community had equal access to land. Land could be acquired through allocation by clan head/chief, as a gift, clearing virgin forest, or purchase. Land was managed under family unit, clan unit or communal unit. There were systems of managing land that derived from customs and taboos.[13] Thus the customary ways of acquiring ownership of land: (l) by cultivation, (2) by purchasing (3) by inheriting from one's elders and (4) as a gift. Nobody's permission is necessary in order to acquire ownership by any of these ways. Others include allocation by the relevant authorities.
Courts have held that although an individual's rights in land were dependent on the fact of beneficial occupation and use, the allocating authority lost its control to reallocate land granted as a kihamba and developed by planting permanent crops.[14]The improvement of the structure and durability of buildings have also tended to hasten the movement for the recognition of proprietary rights and have led to a new development of private law concerned with protecting rights of enjoyment in land and defining the restraints between one proprietor and another in the use of their lands.
Allocation
One of the ways of acquiring land has been through allocation by the relevant authority. This authority could be the chief, villager headman or chairperson. In most cases such allocation was accompanied by some restrictions which had to be observed by the occupier. In Mtongori Nyamagani vs Richi[15] it was held that local elders had the power and right to allocate vacant or abandoned land but not occupied land unless there was a rule limiting the area of land a person could possess. Such elders had no power or right to allocate someone’s land to another on the assumption that the former had too much land while the latter had none.
Clearing of Virgin Forest
Clearing of vacant areas has also been deemed to be on of the best ways of asserting ownership in land. The one who was first to clear and settle on the land was given priority in determining instances of ownership. Essentially the clearing of virgin forest was a crucial way of acquiring some form of permanent rights over land. Even grants were dependent on the cultivation of permanent crops or the construction of structures with a high degree of attachment to the soil before permanent rights could evolve. The buying and selling of land is a recent development.
Permanent rights to a plot of land could be acquired by an individual who was industrious and bold enough to clear a piece of virgin forest. The act of clearance and (in some areas) cultivation were conditions precedent to reducing virgin lands into ownership. When these conditions were satisfied the individual could charge a rent to anyone else wishing to use the land and he could also dispose of it according to the relevant rules of customary tenure.
In Rashidi bin Ali v. Bakari bin Kayanda[16] the dispute concerned an area of land under rice cultivation which formed part of a larger area over which the appellant exercised the rights of a 'Mzengakaya' in Tabora. The Board understood that the term designated an individual who by reason of the fact he or his ancestors first cleared and occupied land in a particular area had, by custom and with the consent of the Chief, acquired a right to grant or refuse-permission to others to cultivate in the same area. With respect to such parts of the area as where appropriated by the process of cultivation for the individual use of himself and his family, he-was regarded as virtually the owner of such area. The portion in dispute was part of the area which had been appropriated by the Mzengakaya and had been cultivated by his sister. About eight years before the dispute occurred the respondent married that sister and the appellant then permitted him to occupy the area.
It was common ground that during that period the respondent had remained in effective occupation and had improved its agricultural value. The appellant wished to eject the respondent from the area. It appeared to the Board that by strict application of native custom the Mzengakaya had full rights of disposal over land (such as that now in dispute) which he has appropriated for the exclusive use of himself and his family. Such a right must however be exercised with due regard to the obligations arising out of a contractual relationship. It appeared to the Board (as it has appeared to the three courts which have heard this case) that in the circumstances in which the respondent obtained possession of the land and having regard to the beneficial use which he had made, of it over a long period, it would be inequitable to eject him. It appeared to the Board also that there was a close analogy between the case and the disposition of usufructuary rights over communal land by a chief.
In such a case he could not be dispossessed at the whim of the chief. In all the circumstances of the case it was difficult to resist theconclusion that the respondent's tenure was originally intended by both parties to be of the stated description and the appellant could not be permitted to interrupt it on the ground of some private quarrel.
According to the case of Silanga Kimenanga vs. Mevongori mosoni[17] it was stated that under local customary law land belonged to the first person who, actually cleared it unless he had abandoned his rights thereto completely.
In the case of Ishaku vs. Hadejia[18]according to Islamic Law, if a person brought into cultivation any uncultivated land, that place belonged to him and even an Emir could not take it from him.
In Mariam bin Chaulembo vs. Hamisi Waziri[19]involving Rufiji law, the plaintiff claimed the disputed land by inheritance. There were 400 coconut trees on the land and it was established that these were planted by the defendant who had been on the land for a long period, including a period during the lifetime of the deceased owner. At the time when the defendant took possession there were eight coconut trees on the land. The plaintiff claimed that the defendant was a trespasser and had to vacate the land on receiving compensation for the improvements which he had effected. According to the court, the plaintiffs claimed ownership of an area of land to which they said they were entitled by inheritance from Mwanaisha Mwichande. The area was never demarcated but was described as a fairly large area on which some four hundred coconut trees were planted and, except for the trees, there was no other material cultivation upon it. It was admitted that during a long period, including the lifetime of Mwanaisha, the defendant was in occupation of the area in dispute and that the only effective cultivation at the time when he assumed possession was the existence of eight coconut trees. Except for those eight trees the defendant claimed to have himself planted all the four hundred or so trees by virtue of which the area in dispute was capable of identification. There was no effective rebuttal of such a claim, and the courts below rightly assumed that, that was the case… Under native law and custom land could only be acquired by effective cultivation, and cultivation to the extent only of eight trees could not be permitted to establish a claim to an area containing four hundred trees. Since the exact situation of the original eight trees could not be ascertained, the defendant had to be regarded as in lawful possession of the whole area in dispute, but he had to compensate the plaintiffs in respect of the eight trees which were in existence when he assumed possession.
Purchase
Under customary law land could also be acquired through purchase.[20]In any case where there was an allegation that a claimant or his predecessor in title had acquired permanent rights in land by purchase or gift there could be a preliminary issue as to whether customary land tenure recognized the buying and selling or other disposition of land at the alleged date. This necessity for historical data cannot be over-emphasised, for an action can always be dismissed when one claims, as his root of title, a sale or gift at a time when those institutions were unknown.[21]
Oldaker, ('Tribal customary law in Tanganyika' (1957) T.N.R. 117) in his paragraph entitled 'individual ownership' states that sales of land have been taking place among the Wachagga and Wahaya before the arrival of the Germans but such sales were restricted to fellow tribesmen. Dodson ('Comparative Land Tenure of Ten Tanganyika Tribes' (1954) 10 J.A.A. SO at p. 81) made similar claims for the Wasambara and Warusha; while Cory and Hartnoll Customary Lazo of the Haya Tribe para. 923) assert that sales of land were practically unknown among the Haya until about sixty years ago. Sales are now prevalent among the various communities in Tanzania
InBartholemew Ndyanabo vs. Bi. Petronida Ndyamukama[23]the appellant Bartholemew sold a plot of land on 18 March, 1967 to the respondent Bi. Petronida for Shs. 600. They executed a written document, Exhibit B, attesting the sale and stating the dimensions of the land to be 40 x 60 paces. Subsequently, when Bi. Petronida began cultivating the shamba, she was informed by Bartholemew's caretaker, Philibert, that the dimensions of the land are 40 x 60 feet and he prohibited her from cultivating in excess thereof. It appeared that Bartholemew bought the plot of land in question for Shs. 700 from one Sosthenes in December, 1960, evidenced by a written document, Exhibit A, which describes the dimensions of the land as 60 ft. x 40 ft. According to Bartholemew's testimony, his son showed the land to Bi. Petronida but not its boundaries. The only person knowing the true boundaries was the caretaker, Philibert, and he was not present at the time.
The primary court was of the opinion that Bartholemew deliberately wrote 60 x 40 'paces' instead of 'feet' so that he could obtain the Shs. 600 and it ordered its refund to Bi. Petronida in two monthly instalments of Shs. 300. The district court on appeal upheld the primary court judgment. The Court agreed with the judgment of the lower courts. Bartholemew and Bi. Petronida were obviously not ad idem as to the thing bought; she thought she was purchasing a shamba measuring 60 x 40 paces while he had no such shamba to sell and intended to dispose of a plot of land measuring only 60 ft. s 40 ft. The district magistrate who visited the site found that had the land been in town, he would have believed that Bi. Petronida had intended to build a house thereon. As it was in the rural area, her intention to cultivate thereon was demonstrated. As Bi. Petronida's consent to the contract was induced by fraud, she was entitled to repudiate on discovering the true situation. The appeal was accordingly dismissed with no order as to costs.[24]
Gift
Customary law recognized granting of land as a gift subject to certain formalities as the case could be. In the case of Herbert Rugizibwa s/o Ruhorana vs. Mushumbusi s/o Mavesi on Haya law, the appellant claimed the return of a piece of land given by his father around 1906 to an ancestor of the infant defendant. The Appellant alleged that the gift was not an outright gift but only of limited interest in the land and therefore recoverable. The evidence, which was accepted by the Court, of formalities necessary to pass absolute title by gift was set out in the judgment… ‘the presumption is that a gift of land in the circumstances of the case must be treated as a gift for a limited interest only unless there was evidence of compliance with the three formalities necessary to establish an outright -gift. These formalities were:- (a) the giving of buhaisa by the donee to the donor; (b) the sharing in the buhaisa by someone who witnessed the giving thereof; and (c) the showing of the boundaries of the land by the donor to the donee. As to the first two formalities there was the evidence of Katundu s/o Lushinga, the cook to the donor, who said that the buhaisa was a goat which he slaughtered and in which he shared. So far as the giving of the buhaisa was concerned the evidence of Katundu was corroborated by Karokora. As to the third formality there was ample evidence that within a short time of the giving of the buhaisa Katundu the donor marked the boundaries by means of a fence which was still in existence. One witness Mabare s/o Kyamajamba stated that he saw the donor setting up the fence in the presence of the donee. That evidence was contradicted by a number of witnesses who asserted that no buhaisa could have been given because the gift was not intended to be an outright gift. Such testimony was not evidence of facts but only negative testimony based on personal belief as to the nature of the transaction: It could not displace the positive evidence of facts constituting the three formalities required to establish an outright gift.’
In Mutesiga Mpohi v. Felician Barthazar[25]a gift of land prima facie passes everything attached to it. The appeal arose out of a suit brought in the primary court by Mutesiga claiming Shs. 100 compensation for reeds cut by Felician the respondent. The primary court found that Felician had interfered in the plaintiff's land and had cut the reeds, as well as planted bananas unlawfully. Accordingly, Felician was ordered to pay Shs. 100 to the Plaintiff. The District Court upheld that part of the lower court judgment which ordered the payment of compensation but went on to note that the land holding the reeds belonged to Felician as he inherited it from his father Mpohi and that upon Mutesiga's death, Felician could utilise both the land and the reeds. The learned district magistrate observed in his judgment that reeds were invaluable in Buhaya for such purposes of building huts and firewood. He considered reeds to be similar to coffee plants which some parents gave to their respective daughters. Hence, the learned magistrate concluded that reeds might be inherited by one person and the land on which they grow be inherited by another person. Whether or not such could be the position regarding ownership of reeds in Buhaya, there was no evidence of such separate ownership in the present case. The court delivered its judgement on the basis that; in the preceding years, Mpohi had given a portion of land with reeds, to Mutesiga, for the purpose of building a house, etc. This finding was supported by the preponderance, of evidence, which was to the effect that the reeds as well as the land on which they are growing belonged to Mutesiga. There was accordingly no justification for the learned district magistrate to note that the land holding the reeds belonged to Felician…the reeds belonged to the plaintiff, Mutesiga, except that only one man, Martin Mpila, had disclosed that a portion belonged to the defendant, Felician. However, the court was satisfied from the evidence recorded that the judgment of the primary court was correct on the balance of probabilities.[26]
InRashidi vs Bakari Kayanda[27] while discussing a nyamwezi custom the court provided that occupation and cultivation of land gives the occupier rights tantamount to those of an owner. According to the case of Jafenia Simba vs Musuka Nyanda[28] illegal act could not justify a right as where a person has been given permission to use and occupy land with limitation. If he contravenes the limits of that permission he cannot expect the law to lend it had to help such unjust act.
CITATION
[1] Agrarian Reform And Rural Development In Tanzania; A Country Paper Presented by Charles R. Tulahi and Perpetua M. Hingi, at the International Conference on Agrarian Reform and Rural Developmet, Porto Alegre, Brazil, (7-10 March, 2006)
[2] Ibid
[3] see Map below
[4] Land Issues And The National Development Strategy: The Tanzania Experience, A Paper prepared for a Regional Workshop on Land Issues in Africa, Kampala
[5]Land Tenure System and Land Reform in Zanzibar
[6]Middleton J. Land Tenure in Zanzibar (Colonial Research Studies No. 33 Publisher, Her Majesty’s Stationary Office, (1961) at 16
[7] Ibid at 24
[8]Shao op.cit at 26
[9] See further discussion on the Zanzibar land tenure under chapter 22.
[10] Okuku JA ‘The Land Act (1998) and Land Tenure Reform in Uganda’ In Africa Development (1) Vol XXXI, 2006 1 at 10
[11] Ibid
[12] Ibid
[13] See Abbi vs Matle (1971) HCD 341 and Medadi vs Name (1971) HCD 333
[14] See cases like Yohanes Matsudike v. Yohanes Morutvera (1955)App No 1/1955,JamesRW & FimboGM at 80
[15] (1973) James RW & Fimbo GM at 564
[16] (1941) James RW & FimboG M at 298.
[17] James R. W and Fimbo G.M at 299.
[18] Ibid at 300.
[19] Ibid at 301
[20] Land denotes the improvements; land (the soil) is owned by the state and cannot be the subject of sale. Improvements include the clearing of the soil.
[21] James R.W and Fimbo G.M Customary Land Law of Tanzania
[22] Adopted from James R.W and Fimbo G.M
[23] (1968) HCD 339, see James R.W and Fimbo G.M at 305
[24] Adopted from James R.W and Fimbo G.M pp 305-306
[25] (1968) CA M/143/68
[26] Adopted from James R.W and Fimbo G.M at 313
[27]James R.W and Fimbo G.M at 298
[28] (1968) HCD No. 10, James R.W and Fimbo G.M at 612.
John Gray, History of Zanzibar
Michael F. Lofchie, Zanzibar
Kjekshus, H., (1977), Ecology, Control and Economic Development in East African History, The case of Tanganyika, 1850-1950, Heinemann, London, 1977.
Illife, J., (1971), Agricultural Change in Modern Tanganyika , an Outline History, East African Publishing House, Nairobi
Cory., (1955)Report on Nyarubanja System in Bukoba,1955
Reining, Priscilla, C., (1962), Haya land Tenure: land Tenancy, Anthropological Quarterly,Vol.35/2(April 1962)
Rweyemamu, J. F., (1973), Underdevelopment and Industrialization in Tanzania, A Study of Perverse Capitalist Industrial Development, Oxford University Press, Nairobi.
Lofchie, M.F., (1965) Zanzibar : Background to Revolution, Princeton University Press, Princeton N.J.
Shao I.F., Land Tenure System and Land Reform in Zanzibar (1820 - 197 Dissertation, UDSM).8) (M.A.
Singerm, Norman J. (1994) Adjudication manual for the systematic Parcel by parcel Adjudication for Zanzibar: Commencing in 1994, June 1994.
Jones, Chris (1996), the New Zanzibar Land
Jones-Pauly, Chris, Old Problems and new Ideologies in Land Reform in Tanzania paper presented at the Capetown Conference on Land Tenure Issues: 31. (2003)
