- INTRODUCTION
1.1 MEANING OF LAND POLICY
Land policy can be defined as framework that aims to achieve certain objectives which will ensure the security and distribution of land rights, land use and land management at large, it also aims to increase access to land by majority in the community given through clear forms of tenure under which it is held[1].
1.2 BRIEF HISTORY OF LAND POLICY
Since Tanzania attained its political independence in 1961, it has been realized that there was a need to develop a coherent and comprehensive land policy that would define the land tenure and enable proper management and allocation of land in the urban and rural areas and provide a clear position on customary land tenure in the light of profound economic and social reforms that have been undertaken in the last 34 years[2].
The National Land Policy wasadopted by the cabinet and was presented to Parliament in 1995. The policy had gone through a long gestation period, which involved numerous policy drafts, a Presidential Commission of Inquiry, a number of commissioned studies bydomestic and international experts and aNational Workshop. Some controversy surrounded the adoption of the Policy, as it ignored much of the recommendations put forward by the Presidential Commission[3].
Thus a new land policy was needed among other things to: Accommodate changes in land use and increase in human population; Controllarge stock population which increases demand for grazing land and creates serious land degradation; Protect the environment from extension of cultivation to marginal areas; Reduce conflicts in land use between agriculturalists, livestock keepers, forest areas, wildlife areas, water sources and miners; Provide for increased urbanization requiring lands for settlements, industries and commerce and preserve valuable agriculture land; Facilitate prospective investors who require land as a result of liberalization of the economy and investment promotion[4].
2.0 MAINBODY
2.1 THE IMPLEMENTATION OF NATIONAL LAND POLICY UNDER THE LAND ACTS
The fundamental principles of the new national land policy have been incorporated and implemented in the new land laws that is the Land Act No.4 of 1999 and Village Land Act No.5 of 1999 passed by Parliament in 1999 as follows:-
2.1.1 LAND POLICY ON WOMEN ACCESS TO LAND (Paragraph4.2.19, 4.2.20 & 4.2.6)
The National land policy of 1995, covers a wide range of issues relating to women's equal right to own land. One of its objectives is to promote an equitable distribution of, and access by all citizens to land.
Paragraph 4.2.19 and 4.2.20 of the policy[5], recognize the existing problems relating to land. It states 'Under customary law, women generally have inferior land rights relative to men and their access to land is indirect and insecure'.
Paragraph 4:2:6 of the policy[6], continues to state further that 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'.
2.1.2 THE LAND POLICY ON WOMEN ACCESS TO LAND AS INCORPORATED IN LAND ACT & VILLAGE LAND ACT.
In order to insure that women enjoy the same rights over land as men the women land rights, the village Land Act and Land Act has incorporated the provisions of land policy and thus set out women land rights as follows;-
Section 3(2) of Village Land Act[7], states that,`` the right of every woman to acquire, hold, use and deal with land shall, to the same extent and subject to the same restrictions be treated as a right of any man". The provision clearly states and recognizes equal rights for both men and women to access and dispose off the land under the same terms and conditions.
In the case of Bi,Mwana Amina Mukubali v. SeverineShumbusho[8],The court had this to say, it is clear that traditional customs has outlined its usefulness, the age of discrimination based on sex is long gone for the world, it is now in the stage of full equality of all human being in irrespective of their sex, creed, race or color. On ground of natural and equality, daughters are like sons in every party of Tanzania hence should be allowed to inherit the property of the deceased father whether it is land or origin on the basis of equality.
Section 20(2) of the Village Land Act[9], protects women against discriminatory customs and traditions which restrict their lawful access to ownership, occupation and use of land. Section 23(2) (c) as in the case of Ephraim v. Pastory and Another[10], the court held that, rule 20 of local customary law declaration No. 4 order of 1963 was unconstitutional of the United Republic of Tanzania,
Section 57(2) Village Land Act[11], accords equal treatment of women in the application of customary right of occupancy by both the Village land Council and the adjudication committee. As in the case of Peter Byabato v.Pastory[12]the court held that, a customary law that barred women from disposing a clan land has been discretionary and is violation of the constitution.
In the case of Ndewawiosio d/o Ndeamtizo v. Immanuel Malasi[13], The court held that, customary law that barred daughters from inheritance had no place in the Tanzania as it was discriminatory.
Section 22(1) of village Land Act[14], grants women to acquire land after divorce. Right to participate in decision making, Village Land Act establishes organs for dispute resolution that run from the village level to appellate court level. Women participation in village and ward level machineries is made mandatory.
Section 60 of the Village Land Act[15], requires that out of 5 to 7 members of the village land council women should not be less than 2 and out of 5 to 8 members of Ward Tribunal women should not be less than 3 as well. Here there is an affirmative requirement of women's representation in bodies that make decisions on land, including resolution of disputes, adjudication committees and village council committees.
Section 3(2) of Land Act[16] states that 'The right of every woman to acquire, hold, use and deal with land shall, to the same extent and subject to the same restrictions be treated as a right of any man.[17]
Section 108(1) (h) (iii) ofthe Land Act[18], protects women by requiring the court to have regard to women in considering whether to grant an order for determination of a lease or relief against such. Section 112 of the land Act[19],provides for the power of an occupier of land in creating mortgages. Sub-section 3 requires the consent of all the spouses before a matrimonial home is subjected to Mortgage[20].
Section 113(3) of the Land Act[21], empowers the dependant of a borrower whose land is likely to be permanently deprived to apply to court on the ground that its terms were of disadvantageous to him or her. And in considering that the court is obliged to have regarded to gender as well, also part X and Part xvii, allows women to own or occupy land jointly or in common with other persons[22].
Under joint occupancy, the law protects women as it provides that where the land as whole is occupied jointly under a right of occupancy, no occupier is entitled to any separate share in land, not even a transfer to an outsider unless there is a consent between the two occupiers. It is important to note that this is created mostly between spouses as per section 159(1),(8)[23].
Under the occupation in common, women are protected in that each occupier is entitled to an undivided share in the whole. Any disposal of land here requires consent as well. Spouses may be presumed to occupy land in common as per Section 160 (1) of the Land Act[24].
Section 161(3) (b) of the Act[25], requires that before any transfer or assignment is effected it is the duty of the assignee or the transferee to make inquiries as to the consent of the spouses as per Section 59 of the law of marriage[26].
Generally, the 1999 legislation adequately Incorporated and implemented the national land policy as it provides for a bunch of rights for women to access, own, and control land as equal as men. It also provides for the right to participate in decision making organs regarding land matters. They also provide for women right to dispose land and properties therein[27].
Despite all those legal provisions that guarantee women access to land, ownership and protection of their rights to land, the situation on the ground is proving otherwise as many women are still discriminated upon and denied their rights to land[28].
2.1.3 THE LAND POLICY ON COMPENSATION& LAND VALUE(Paragraph 4.2.19 & 4.2.20)
The land policy of 1995 identified the problem of inadequate and delay compensation and thus suggested the areas in which compensation should payable, as per paragraph 4.2.19 and 4.2.20of the policy[29],that compensation should base on, Market value of the real property(land), Disturbance allowances, Transport allowances, Profits of cultivations, Cost of acquiring, for getting another land and Any other cost, expenditure incurred for carrying development of that land.
2.1.4 THE LAND POLICY ON COMPASATION& VALUEAS IMPLEMENTED IN LAND ACT & VILLAGE LAND ACT.
After the enactment of land Act of 1999 and the village land Act of 1999 the new trend of compensation started to be used as provided under Section 3(1)(g)of the Land Act[30], provide that, payment of full fair and prompt compensation and also provided the areas/items in which compensation must be payable that are, the market value, disturbance allowance, transport allowances, cost of acquiring land, interest at market rate will be charged and any other cost. Other provisions are Section 4(3), Section 19 and Section 20(3), 156 of the Land Act.
Once the right of occupancy has been revoked, the former occupier is entitled or has right to compensation. This is clearly stipulated under Section 49 of Land Act[31].That a person shall not arbitrarily be deprived of his property for the purpose of acquisition or any other purpose without the authority of the law, which shall set out conditions for fair and adequate compensation.
It however, can be shown in the case of Manyara Estate Ltd& Others v. The National Credit Agency[32]. In this case, in October 1994, coulters right of occupancy was revoked by the President, but under section 49 of the Land Act he was entitled to compensation for any unexhausted improvement existing on the land in dispute.
The Land Act also provides for payment of compensation to the former occupier whose right of occupancy has been revoked. Section 49 (3) provides inter alia that " there shall be payable to the former occupier whose right of occupancy has been revoked compensation which shall equal the value of unexhausted improvements made in accordance with the terms and conditions of the right of occupancy on the land at the time of revocation.
Also the Village Land Act[33] under section 3(1)(g) mention that the interest in land has value and under Paragraph(h) of the same Section provide for the prompt and fair compensation for any one whose customary use of land has been interfered by the state under the Act or the Land Acquisition Act.
The law also provides that all lands acquired by non-citizens prior to the enactment of the Land Act is deemed to have not value except for unexhausted improvements for which compensation may be paid as per section 20 (3) of the Land Act[34]
Following the enactment of the Land Act, two regulation were published to support the Act that are, Land (compensation Claims) Regulation of 2001[35], and Land (assessment of value of land compensation) Regulations of 2001[36].
2.1.5 LAND POLICY ON DISPUTE SETTLEMENT MACHINERY (Paragraph 4.2.25& 4.2.26)
The national land policy of 1995 under paragraph 4.2.25,recognised the problem of frequent land disputes which results from among other things, multiple allocation of land and poor record keeping. It further recognised the problem of delay of land cases in normal courts due to bulk log of the cases and thus under its policy statement under paragraph 4.2.26 recognised the need to have a well established land disputes settlement machinery and proposed to have mabarazayawazeeyaardhi to quasi-judicial bodies at district and national levels with appeals to high Court on point of law[37].
2.1.6 LAND POLICY ON DISPUTE SETTLEMENT MACHINERY AS IMPLEMENTED IN LAND ACT& VILLAGE LAND ACT.
The Land Act Cap 113 and The Village Land Act Cap 114 have provisions which provides for the courts responsible to solve those disputes and to some extent has implemented the policy and this is evident as follows:-
The Village Land Act[38]under Part V, provides for the dispute settlement mechanisms. It provides that every village shall establish a Village Land Council for assisting parties to settle their disputes amicably as per Section 60 (1) of the VillageLand Act[39].
This means the Village Land Council established consist of seven members[40], and have a role of a mediator to enable parties to reach at amicable solution. Principles of customary mediation will be paramount in mediation of those land disputes[41].
The Village Land Council is not a village land court like the Elders‟ Land Council recommended by the Land Commission (Baraza la Wazee la Ardhi). Firstly, its jurisdiction is severely limited, and secondly, it only functions in a mediating capacity. Its brief is to assist the aggrieved parties to arrive at a mutually acceptable solution. In the event that this is not possible, the conflict may be referred to the courts[42].
Moreover, Section 58 of the Village Land Act[43], provides for the methods to avoid and settle disputes between pastoralists and agriculturalists in case it arises. It provides that the Village Adjudication Committee shall determine the rights of each part in land to occupy and in case where the parties can cooperate to use the land the Committee will prepare a draft for that purpose.
On the other hand, the Land Act[44] under Part XIII, provides for Dispute settlement. It provide for the courts vested with exclusive jurisdiction in hearing and determining land disputes.
The Land introduces little new in the area of conflict resolution. Section 167 of theLand Act[45], is the only one dealing with dispute settlement, and it does no more than define which courts have jurisdiction of land cases.
These are in descending order, the Court of Appeal, the Land Division of the High Court, the District Land and Housing Tribunals, the Ward Tribunals and the Village Land Councils. Of these, the Land Division of the High Court and the District Land and Housing Tribunal are new bodies[46].
Apart from the two laws the Land Dispute Courts Act[47], is the main law which provides for the land disputes machinery in Tanzania. The Act define dispute to includes any case where a person complains of and is aggrieved by the actions of another person or any case in which a complaint is made in an official capacity or is a complaint against an official act[48]. It enumerate Courts having jurisdiction to hear and determine land disputes, namely, the Village Land Council, the Ward Tribunal, the District Land and Housing Tribunal, the High Court and the Court of Appeal of Tanzania[49].
Despite all these, land disputes are still persistent as it is affirmed in the case of LekengereFaruParatukamunyu&52 others vMinister for Tourism, Natural Resources and Development & 3 others[50], whichprovide for a clear example of unlawful removal with harassment to Maasai from Mkomazi game reserve which was their ancestral area. This case showsthe continuationof the problem even after the enactment of the Land Act and Village Land Act in 1999.
2.1.7 LAND POLICY ON REVOCATION (Paragraph 4.2.13&4.2.14)
The Land policy of 1995 under paragraph 4.2.13 recognised the problem of non-development of land after one has given a certificate of occupancy and thus fail to comply with the conditions attached to it. Thus under paragraph 4.2.14 retained the power of President to revoke such right of occupancy serve for public interest and calls for a definition of what actually amounts to public interest. And the revolution of village land to be determined by village Assemblies[51].
2.7.8 IMPLEMENTATION OF LAND POLICY ON REVOCATION BY THE LAND ACTS
Sections 45 of Land Act[52], empowers the President to revoke the right of occupancy saved for good cause. Good cause includes breach of term or condition contained in the certificate of occupancy or breach of any regulations under that Act relating to the transfer or dealing with rights of occupancy or interest therein.
Section 45(3)of the said Act, empowers the President to revoke granted right of occupancy in a public interest. Revocation is the serious punishment which is imposed in the Land Act. It is the last resort to be taken because it takes away the right of occupancy.[53]
The President may revoke a right of occupancy granted to a non-village organization or a group of persons who are not villagers as per section 44 of Village Land Act[54].
One of the good causes that led to the revocation has been seen in the case of RajabuHassara v. Saraya Rashid[55], in this case the appellant was offered the right of occupancy in a certain plot at Ilala District in the City of Dar es salaam in 1968. The right of occupancy was eventually revoked by the President for alleged non-compliance with the conditions stipulated in the right of occupancy in question. The court held that, non compliance with the condition stipulated in the right of occupancy constitutes "good cause" for the right to be revoked.
2.7.9 LAND POLICY ON LAND ACQUISITION (Paragraph 4.2.15 & 4.2.16)
The national land policy of 1995 under paragraph 4.2.15 recognised the Land acquisition by the president for public purpose or for re-development and also identified the problem of our laws being silent on what actually amounts to public interest and people being unable to appeal against the compulsory acquisition of the Land and therefore on its policy statement under paragraph 4.2.16, maintained the power of president to acquire the Land but requires a clear definition of "public interest" and argued for acquisition be challenged before the court of law[56].
2.7.10 IMPLEMENTATION OF THE LAND POLICY ON ACQUISITION BY LAND ACTS
The main purpose of compulsory acquisition by President according to Section 3 of the Land Acquisition Act[57], is for the Public interest as the president may acquire any land for any estate or term where such land is required for any public purpose. The expression for public purpose has been clarified under, Section 4 of The Land Acquisition Act[58]. For example under this section Land shall be deemed to be required for a public purpose where it is for exclusive Government use, for general public use, for any Government scheme, for the development of agricultural land or for the provision of sites for industrial, agricultural or commercial development, social services or housing.
2.7.11 LAND POLICY ON ADMINISTRATION & LAND ALLOCATION (Paragraph 4.2.0, 4.2.1 & 4.22 (i)-(iv)
The National land policy of 1995 under paragraph 4.2.1, identified the problem of absence of clearly defined institutional Framework for the administration of land a thing that normally results to multiple and complicated land disputes, and thus on its policy statement under paragraph 4.2.2, requires the commissioner for land to be responsible for land administration and he will appoint other officials to assist him and the administration of village land to be under village councils and to report their decisions to village assemblies.
2.7.12 IMPLEMENTATION OF LAND POLICY ON LAND ALLOCATION BY THE LAND ACTS
Section 9 (1) of the land Act[59], provides for commissioner for Land who is appointed by the President and he is the principal land administrator as per section 10 (1) of the Land Act.[60] He is an administrative and Professional Officer and adviser to the Government on all matters connected to the administration of land; for example he must ensure that all local government authorities and associations of local authorities are consulted and kept informed about the administration and the commissioner may appoint other officials as per section 11 of Land Act[61]. These provisions seems to implement the provisions of land policy under paragraph 4.2.2 (i) & (ii).
The provisions of section 8 (1) of the village Land Act[62], establishes the village council which shall, subject to the provisions of the Act, be responsible for the management of all village land. The village council shall also exercise the functions of management in accordance with the principles applicable to a trustee managing property on behalf of a beneficiary as if the council were a trustee of, and the villagers and other persons resident in the village were beneficiaries under, a trust of the village land[63].
LAND POLICY ON ACCESS TO LAND (Paragraph 4.2.3, 4.2.4)
The policy under paragraph 4.2.3 identified the problem of less restrictions to access to Land to all citizens and non-citizens a thing that has facilitated acquisition of land for speculative purposes. Thus on its policy statement under paragraph 4.2.4 imposes some restrictions especially to non-citizens.
IMPLEMENTATION OF THE POLICY ON ACCESS TO LAND
Section 20 (1) of the Land Act[64], puts some restrictions as to access to Land by non-citizens. The section is to the effect that "For avoidance of doubt, a non-citizen shall not be allocated or granted land unless it is for investment purposes under the Tanzania Investment Act". Thus It should be noted that land can be allocated to non-citizens by the Tanzania Investment Center (TIC) which creates derivative rights[65], which mean a right to occupy and use land created out of a right of occupancy and includes a lease, a sub-lease, a license, a usufructuary right and any interest analogous to those interests and sub-leases created out of granted right of occupancy by the private sector[66].
It is also possible for a foreign investor to acquire village land for purposes of investment. However, such an investor will not be able to acquire the designated village land as it is, it must be transferred from village land to general land as per Section 4 of the Village Land Act[67].
When the National Land Policy of 1995 was drafted, it made further clarification by making a policy statement to the effect that, "(vi) A dual system of tenure which recognizes both customary and statutory rights of occupancy as equal in law will be established."The National Land Policy became the core document to the drafting of the Land Acts as it contains the Government position.
The Village Land Act, 1999 tries to implement the above policy statement. Under section 18[68]it states that: customary rightofoccupancy is in every respect ofequal status and effect to a granted right of occupancy.It can be said that section 34 (3) of the Land Act[69], evades tenure security of customary title, and progressively replaces it by granted right of occupancy.
Land Act under sections 3 (1)& 4 (1)and the Village Land Actunder section 3 (1) (b) maintains thatalllandispublic land vested in thepresident as a trustee for and on behalf of all thecitizens of Tanzania. It is obvious therefore that, individuals do not own land rather interests in land ortermofyears. Thus these provisions seems to implement the land policy under paragraph 4.1.1 (i) (a).
The work prepared by Mwakisiki E. Mwakisiki, third year student at moshi cooperative university
REFERENCE
BOOKS
Fimbo, G. Mgongo, (2003). Land Law Reform in Tanzania. University of Dar es-Salaam, Tanzania.
Jesse, J.M. &Chalambo, J. (2009).Background to the Land Law in Tanzania, Faculty of Law, Dar es Salaam.
STATUTE
The Land Act [Cap. 113 R.E 2002]
The Village Land Act [Cap. 114 R.E 2002]
The Land Disputes Court Act[Cap. 216R.E. 2002]
Land Acquisition Act [Cap 118 R.E 2002]
Land (Compensation Claims) Regulation, 2001 G.N no.79 0f 2001
Land (Assessment of value of land compensation) Regulations, 2001 G.N 78 of 2001.
THESIS/DISSERTATION
Kennedy, G. (2007), "The Impact of Tanzania's New Land Laws on the Customary Land Rights of Pastoralists"; a case study of the Simanjiro and Bariadi districts, University of Bayreuth, Bayreuth.
[1]Kennedy, G. (2007), "The Impact of Tanzania's New Land Laws on the Customary Land Rights of Pastoralists"; A case study of the Simanjiro and Bariadi districts, University of Bayreuth, Bayreuth.
[2]Fimbo, G. Mgongo, (2003). Land Law Reform in Tanzania. University of Dar es Salaam, Tanzania.
[3]Ibid
[4]Fimbo, G. Mgongo, (2003). Land Law Reform in Tanzania. University of Dar es Salaam, Tanzania.
[5]National Land Policy of 1995
[6]National Land Policy of 1995
[7][Cap.114 R.E 2002]
[8]Digest of Appeal,Local courts 055-1956-No.88
[9][Cap.114 R.E 2002]
[10][1990] LRC 757
[11][Cap.114 R.E 2002]
[12]Civil Appeal No.252/1986,The High Court of Tanzania atMwanza.(unreported)
[13][1968] HCD 127
[14][Cap.114 R.E 2002]
[16]Ibid
[17]Ibid
[18]Ibid
[19]Ibid
[20][Cap 113 R.E 2002]
[24]Ibid
[25][Cap 113 R.E 2002]
[26][Cap 113 R.E 2002]
[27]Fimbo, G. Mgongo, (2003). Land Law Reform in Tanzania. University of Dar es Salaam, Tanzania.
[28]Fimbo, G. Mgongo.(2003). Land Law Reform in Tanzania. University of Dar es Salaam, Tanzania.
[29]National Land Policy of 1995 under paragraph 4.2.19 & 4.2.20 (i)-(ix)
[30][Cap 113 R.E 2002]
[31][Cap 113 R.E 2002]
[32][1990] T.L.R 9
[33][Cap114RE 2002]
[34][Cap 113 R.E 2002]
[35]G.N no.79 of 2001
[36] G.N 78 of 2001.
[37]National Land Policy of 1995
[38][Cap. 114 R.E 2002]
[39]Ibid Section 60 (1)
[40]Ibidi Section 60 (2)
[41]Ibidi Section 61 (4)
[42]Jesse, J.M. &Chalambo, J. (2009), Background to the Land Law in Tanzania, Faculty of Law, Dar es Salaam.
[43][Cap. 114 R.E 2002]
[44][Cap. 113 R.E 2002]
[45]Ibid
[46]Ibid Section 167
[47]Act No. 2 of 2002, [Cap. 216 R.E. 2002]
[48]Ibid Section 2
[49]Act No. 2 of 2002, [Cap. 216 R.E. 2002] Section 3 (2)
[50]Civil Case No.53 of 1998(unreported) reported in Fimbo, M.G. (2006), The Land Law of Tanzania, A Case Book, p. 69
[51]Land Policy of 1995 under Paragraph 4.2.13 &4.2.14 (i) & (ii)
[52][Cap. 113 R.E 2002]
[53]As was held in Patman Garments Case
[54][Cap 114 R.E 2002]
[55][1983] TLR 111
[56]Land policy of 1995 under Paragraph 4.2.15 & 4.2.16 (i), (ii), (iii), & (iv)
[57][Cap. 118 R.E 2002]
[58]Land Acquisition Act [Cap 118RE 2002]
[59][Cap. 113 R.E 2002]
[60]Ibid
[61][Cap. 113 R.E 2002]
[62][Cap. 114 R.E 2002]
[63]Ibid Section 8 (2) & (3)
[64][Cap 113 R.E 2002]
[65]Section 2 of Land Act No. 4 of 1999 R.E 2002
[66]W.R Tenga and J Mramba (2008). Manual on Land Law and Conveyancing in Tanzania, Dar es salaam University Press, Dar es salaam at p 102
[67][Cap. 114 R.E. 2002]
[68][Cap 114 R.E 2002]
[69][Cap 113 R.E 2002]
