Ancient societies in Tanzania did not design sophisticated rules in respect of land use and occupation. During early stone ages man was absolutely dependent on nature. At the
early Stone Age man was living by hunting and gathering. There was no permanent settlement and caves were used for accommodation by the early man. By this time science and technology is considered to be at the lowest level and the value of land is not likely to be perceived by the man of that age. Man was a „wondering animal‟. His mobility was activated by the fact that, his „daily cake‟ was determined by what was available by nature. Hunting and gathering was the main and principal activity of the time. It is not proper to talk of land tenure at this period since the system of tenure could not by any means exist.
By the end of the late Stone Age man had achieved the knowledge of making and use of stone tools; some of the tools were used for cultivation. At this time he reduced his mobility and formed permanent settlement. Simple crop cultivation and animal keeping were made. The value of land became viable due to these developments.
Invention of iron technology was a turning point in the history of man. Iron tools made him to master easily his environment including improving agriculture. Use of Iron tools made man to clear and cultivate large pieces of land. Development of agriculture encouraged permanent settlement and because of increasing number of the people man started to live in advanced communities. Land now became more valuable and each family unity secured its peace of land for family use and occupation. Close related families formed a clan and collectively they acquired clan land. The later was for the whole clan and strangers were barred from trespassing to the same. Later, customary rules were introduced to the effect that no family was to trespass to another one‟s land. The same rules applied to alien clans even tribes‟; trespassing to another‟s land was the main source of inter-clan and tribal wars.
B. FEUDAL COMMUNITIES
Traditional and customary tenure practices were sophisticated during feudalism. Number of the people had grown and the systems of organization were more advanced. Land holdings took different forms in different areas. Land was the major factor of production and it was the determinant of richness or otherwise of a person. In most of the societies
land was communally owned and individuals‟ entitlement to land was determined by membership to a particular family, clan or tribe. The chiefs (where they existed) were custodians of the (radical) title in trust for the whole tribe. These Chiefs (Kings in some societies) had powers with regard to access, use, control and administration of land; generally by clans, and, particularly to individuals. Basically land was for use by the family and, individuals‟ titles in the modern sense did not exist.1
Because a vast area of land was not occupied, most of the land was vacant. It was open for occupation and use. An individual could acquire interest in land through clearing a bush or virgin area which was not occupied.
3. OWNERSHIP OF LAND
„that is to say implicit in the word are all sorts of bundles or amalgams of right
(including privileges and powers) and duties over land primarily against persons.2
It has been proposed somewhere else that ownership in loosely used as it sometimes denotes what is in effect as absolute ownership but other times it is used in the context, which indicates that the reference is only to right of occupancy.3 Concerning land, „ownership‟ might refer to the interests or rights an individual have in respect of a certain peace of land. He might have the right to use, dispose or otherwise deal with the land for his social and economic development. From the historical conspectus, ownership of land has never been unlimited.4 Control mechanisms on the land have been common basing on its use, scope of ownership and sometimes on its disposition. Customs and legislation are the main principal agents for imposing restrictions and control over the land.
Before colonialism, the main form of agriculture was subsistence crop cultivation and animal husbandly. Land was highly needed for growing of food crops and for grazing animals. Because of the increasing pressure on the land, it became more valuable and to a large extent during feudalism it becomes commercialized.5 The dominant classes who were Kings and Feudal Lords did rent the land to the subordinates‟ classes known as tenants.6 They also were selling and transferring their interests in land on commercial bases. Passing of interests or rights in land by succession was generally regulated by traditional or social customs.7 A discussion need to be made here as to whether ownership of land had a place among customary systems of tenure. There are conflicting views on this matter. The first argument is that customary or native law does not recognize absolute ownership of land by individuals.8 From that line of argument the land did not have value unless developed. It is the development which is made over the land that counts. A native was not likely to advanced claims over the land which is bare, undeveloped or which is occupied by some one for the purposes of effecting some development over there. The contention that there was no ownership of land under Native laws and customs was broadly ignited by political aspirations escorted by judicial support.9 The former president of Tanzania. J.K. Nyerere who was among the strongest advocatist of the above view once had said that
”„… according to traditional customary law we are mere tenants over land that does not actually belong to us….‟10
Nyerere and others, supporters of that position stood on the conception that the land is the property of the community and the rights of individuals are confined only to its use and occupation. An individual right to land in considered to be merely usufructuary and subjected to ultimate control of the community which has overriding interest on the land.33 The second argument is that once an individual has acquired unoccupied area and developed the same, he will be the sole owner. He will have overriding interest against any one, whether individual or the general community. It was because of this right that a person was at liberty to pass his ownership of land at death without seeking permission or consulting any one.34 It is further advanced that customary succession to land does not invite or demand community authorization rather it depend on ones free will. Another indication of ownership of land by an individual can be determined by the fact that disposition of land was conducted freely contrary to the modern laws which impose some conditions such as approval in which case the default party can not successfully change hands his title or interest in land. Restrictions on disposition were only imposed on the land which was considered to be clan land.
Further more, in pre-colonial era some of the lands were neither communally nor individually owned.11 There were unsettled places like natural forests, dry and unfertile areas, large water bodies such as oceans and lakes and, areas which were vacant, free and open for occupation by any one. These areas in fact were not subjected to customary rules of tenure simply because under no circumstances an individual or the community could claim exclusive interest over the area. Although occupation of the land by natives was either actual or potential since families, clans, tribes even Kingdoms were undergoing expansionism and because areas which were considered to be vacant were occupied due to the system of shifting cultivation practiced by some societies, it is illogical to say that the whole land of Africa, Tanzania in particular was under native occupation to attract application of customary laws.
It is pertinent here to advance that perception as to the nature of interest hold by an African native in Land has never been uniform. Not only that scholarly study and research provide clockwise the above observation but also natives themselves provide different and sometimes conflicting views on the matter. Sometimes it is very difficult to define the nature of interests held by some groups in the society such as the pastoralists who move freely over large areas in search of fresh grazing pasture and of water. Some of the pastoralists are not confined in a limited area in which case their grazing men do visit and graze in a certain area once without re-grazing in the same areas for years or even decades. The argument by Professor Raymond on the meaning of ownership is meritious when he pointed out that:
„… the precise meaning of ownership is different in every culture, varying according to custom, tradition and the relative social status of those who enjoy its privileges.‟12
It is stressed here that the comment by Professor Raymond must always be invited whenever ownership of land comes into question. Truly, ownership of land did exist in some areas of Africa at different degrees but also with different perception. In other places land was never considered to be a private property. A discussion on ownership of land will be more meaningful if it is made particular to a certain African Society or ethnic group. Any attempt to generalization is likely to mislead.
CITATIONS
1) M. Rwebangira, (1999) „Debating land on the Threshold of a New Tenure Reform from a Gender perspective‟ A paper presented to the parliamentary committee of the finance and the economy workshop.
2) Dodoma 26 – 27 January, 1992.
3) James and Fimbo. Op.cit.,P. 6
4) Nsirem. V. Nwakerendu (1955) 15. W.A.C.A 71 at P. 72
5) James and Fimbo 0p.cit., P. 7
6) C.K., Meek, Land Law and custom in the colonies 2nd Edition, Thomas Nelson Printers, London, 1968 P. XII There were three types of rent. These were rent in money, rent in kind and labour rent.
7) Meek, Loc.cit.
8) James and Fimbo.Op.cit P. 7
Example of cases that provide non-existance of ownership of land under customary jurisprudence are Muhena Bin Mwamba V.A.G (1953) 2 T.L.R 327 and Gathomo V. Murito 9 E.A.P.L.R. 102.
9) J.K., Nyerere Freedom and unity, Oxford University Press, Nairobi, 1967 Chapter 7.
10) Meek, Op.cit P. XIV.
11) Meek, at Pg. 23 provides that; the principle that he who clears land establishes right of a permanent character has existed all over the World from ancient times‟. „However, the rights he discusses are only limited to unexhausted development such as trees and not the land itself.‟
12) Meek, Ibid, P. 12.,Quoted from Meek Op.cit. P. 11
