Processing a Land Policy: The Case of Mainland Tanzania
Author : Ringo Tenga, Faculty of Law, University of Dar-es-Salaam
1. Introduction
This chapter looks at the evolution of Tanzania's reform of its land laws, an initiative embarked on as part of broad economic liberalization supported by donors and the World Bank Group. The land reform process has so far had three distinct outcomes: first, a Presidential Land Commission presented its report; second, the government issued a National Land Policy; and, third, a Draft Land Bill was completed. The next, and last step, will be the debating of the Draft Land Bill by Parliament and its adoption, following revision, as a Land Act to replace the moribund Land Ordinance of 1923. This chapter discusses the land reform process, including issues demanding further deliberation and action.
2. Pre-1992 Land Policy
Tanzania is largely a country of smallholders, with up to 80% of the population depending on agriculture for its livelihood. But even pastoralists and urban dwellers, who comprise the rest of the population, depend on agriculture to some degree. Land is a key asset, and all attempts to reform land laws are bound to have strong social, political and economic connotations.
The main characteristics of colonial land policy were as follows: first, ownership and possession of land was differentiated between formal informal sectors. In the urban sector and among plantations, land ownership was controlled by statute, and ownership was supported by documentary proof in the form of title deeds. Among peasants and pastoralists, ownership was established through membership of a "native" community. This type of entitlement was variously called native title, customary title, deemed rights of occupancy, etc. The majority of rural dwellers in Tanzania still only have these latter claims to land.
The British ruled Tanganyika as a Trust Territory and passed land laws which, prima facie, were to protect native interests.
The Land Ordinance of 1923 (2) which concretized the dual structure named above was, however, vague on "native" land ownership. (3) While written land title deeds were granted to foreigners in urban centres and to estates and plantations, the majority of citizens were limited to customary tenure under a system of informal law. Thus, under statute law the economically dominant classes in urban and rural areas come to dominate large-scale properties while the majority, under customary law, were restricted to ownership of small-scale landed property.
The second feature of this land policy was that nobody could own or possess land unless proof of use was evident. In other words, security of tenure was dependent on proof of use. Right of occupancy was defined as "title to the occupation and use of land". Native title, it was concluded, was essentially usufructuary i.e. provable on use (Lyall, 1967). (4) Through the principle that land use ensures entitlement sounds egalitarian, in practice it was difficult to implement fairly. The same principle was used to justify land confiscation from "natives" who were not putting land to "proper" use, that is not engaged in commercial activities. Similar justification was used in the classic case of land confiscation from the Meru (Kirilo and Seaton, 1976). Paradoxically, the Tanzanian government has used the same argument in expropriating land form pastoralists (Lane, 1996). However, the principle has also been used, positively, to enfranchise customary tenants, and to provide a basis for developing legal principles for granting "land to the tiller" (James and Fimbo, 1973). Still, with regard to gender, the principle of "land to the tiller" has historically been unfairly applied. Women are the majority "users" of land in the countryside but have little power over its ownership.
The third feature of land policy, contrasting markedly with the current emphasis on market liberalization, is the restriction put on land market transactions. This feature of land policy has had a variety of uses and manifestations in application. During the colonial period, it was used to exclude native Africans from the formal land market. But the same principle has also been used to restrict transfer of granted rights of occupancy by post-independence governments in their bid to monitor land speculations, control rents, or when they sought to acquire land or buildings for public use. (5)
The institution of communal land holding was based on the claim that individual proprietary land rights were unknown among African societies, and that land transfers did not exist before colonialism.
Although these claims fly against historical evidence (Lyall, 1980; Griffith, undated; Oldaker, 1957), fear of land transactions persists even today, stifling all attempts at modernizing agriculture or evolving an efficient land market. (6)
The need to prevent the specter of landless peasants, among land-grabbing foreigners, was a stark argument for preserving tight control on the land market. (7) For example, dissatisfied with the limited "window of intervention" accorded it under the system of freehold titles, the government banned them altogether with the institution of the Freehold Titles (Conversion to government Leases) Act, 1963. On the basis of superiority of its "development requirements" the state was now able to intervene in all land use.
The government's interventionist role in land management started early on in the colonial era. However, the state ensured itself all the instruments necessary to intervene in all aspects related to land holding and use. Under this system, the traditional principle of land ownership in market economies, i.e. that the owner is entitled to "peaceful enjoyment" of property, becomes precarious. Under the current system in Tanzania, even land under granted rights of occupancy is subject to conditions imposed by the state. Failure to follow them invited unilateral revocation of title by the President of the country. Though top intervention is rarely necessary, the system is still a source of much insecurity to tenure.
The urge to control land also extended to customary land tenure. Lack of formalized arrangements at the land user level meant that peasants were subject to a myriad of penal by-laws in the cultivation and conservation of agricultural land (Williams, 1982). Minimum acreage by-laws were used in the colonial period to ensure that peasants allotted minimum acreage to food or cash crops, failure to do so would be answered with penal sanctions, including imprisonment.
"An analysis of the Ordinance show that in reality it vested all necessary powers over land in the Government, the purpose being that although no large concessions were made to settlers at that time, apart from the land alienated by the Germans, future land policy might change. The function of the Ordinance was therefore to give specific powers to the government and be as vague as possible about African rights so that any shift of policy could easily be justified by a reinterpretation of the Act. Land policy was to be left as far as possible to administrative, not legal control. Later experience show that considerable modifications of policy were in fact made without the necessity of change in law."
Colonial circulars re-interpreted policy at every turn. For example, during the 1930's, when there was little white settlement, land alienation was restricted. However between the end of World War II and the early 1950's, when white settlement had increased, alienation policy was interpreted with much greater laxity (Tanganyika, 1941, 1953). According to Lyall (1973) the total area alienated under long-term rights of occupancy rose from 788,038 acres in 1946 to 2,533,966 acres by 1958, a more then three-fold increase.
Agrarian reform has been a key concern of the post-colonial government in Tanzania. This was because agriculture was seen as capable of generating growth from the country's own resources, while at the same time benefiting the majority of the people. In practice agrarian reform meant regulating the large-scale estate and plantation sectors, and transformation of small-scale agricultural and livestock activities in the country side. After independence in 1961, the state tried to modernize the peasantry, first through resettlement and service extension, and, subsequently, through more refined attempts at "capturing the peasants", notably the introduction of Ujamaa (or African Socialism). By the end of the 1970's both approaches had failed, however (Coulson, 1978, 1982).
3. Towards a National Land Policy
Between 1976 and 1980 Tanzania found itself in something of a dual crisis. On the one hand, the economy had gone into sharp decline, characterized by a large fiscal deficit, rising inflation and an expanding balance of payments deficit. The second crisis related to the financial aftermath of the war with Uganda, that dislodged Idi Amin, at the end of the 1970's. All this came at a time when the villagisation (Ujamaa) programme demanded a considerable amount of resources to remain on track (Havnevik, 1993). Further, fewer resources were now available for meeting the demands, for example food subsidies, of the politically powerful urban elite. The period thus saw Tanzania abandon its socialist-oriented economic policies, and embracing, rather reluctantly, those advocated by the IMF and the World bank. Since even Tanzania's traditional supporters, the Nordic countries, had marked their reluctance to disburse aid in the absence of broad agreement with the International Financial Institutions, the country was left with no option but to fall in line.
Once again concerns about agricultural performance became the focus of the reform measures. Donors and the World Bank blamed the poor state of agriculture on the earlier emphasis on import-substitution manufacturing. This indirectly taxed farmers, and switched the domestic terms of trade in favour of urban dwellers. In spite of a continued flow of resources to state farms and related institutions, government investment had tended to decrease over the years. In defining economic policy directions at the beginning of the 1980's, the World Bank and the donor community suggested a renewed focus on smallholders. It was argued that if the country's development was to be agriculture-led, then peasants had to be given the necessary incentives and support.
A strong element of the policy shift would relate increasingly to the role of market forces in setting farm-gate prices and in agricultural marketing as a whole.
The government responded in 1983 with a National Agricultural policy, in which private ownership of land was emphasized. Villagers would, for example, be able to own land privately within the boundaries of their villages. In the Ujamaa villages, the establishment of individually-owned units was also proposed. The period of lease would be of long-term duration, a minimum period of 33 years, to allow investment and conservation. It was hoped that this would increase rural productivity, and ensure owners a period long enough to recoup their investment. The type of tenure proposed for the village itself was a right of occupancy of 99 years, that is, for all practical purposes, equivalent to freehold. This concern for individual land security, in order to encourage agricultural investment and productivity, was not new, however. It was the subject of the Royal Commission Report of 1955, where the structures proposed to bolster up individual peasant production were pretty much the same as those listed above.
It was within this general search for a new modus operandi on land matters that the President appointed a commission, chaired by Prof. Issa Shivji, to study and make proposals for land tenure reform.
4. The Shivji Report 1992
The Presidential Commission of inquiry into Land Matters presented its report in November, 1992. The report identified five areas of concern:
- i. pervasive insecurity of tenure;
ii. radical title vesting in the presidency (powers of control and administration over land);
iii. overlapping institutional structures over land allocation and administration, and dispute adjudication;
iv. lack of transparency and popular participation in the administration of land;
v. poor institutional structure for adjudication of land rights and disputes.
National lands, would be administered by a Board of Land Commissioners under a National Lands Commission, holding national lands in trust of behalf of citizens. Village lands would be held by village assemblies, composing all adult members of the village. In an assessment Shivji (1996) (8) has written:
"The central recommendation however, was undoubtedly the divestiture of the radical title and de-linking of land from the Executive and vesting of village land with Village Assemblies. This recommendation is the most fundamental one and runs through all the more detailed recommendations of the Commission. Admittedly, this would have some significant impact on the organization of the state structure."
The idea of de-linking the President from land matters was radical and it is not surprising that the national Land Policy document, that partly evolved from the report's recommendations, avoided it entirely. It was felt that removal of presidential powers over land would, in the course of implementing development projects, make policy-makers seem like "beggars for land". However, the goal of democratizing the "eminent domain", while at the same time vesting ownership in the people themselves was laudable (Tenga, 1993).
Other recommendations on land tenure included formalizing customary titles by issuing customary certificates of title (Hati ya Mila ya Ardhi). The title would be, essentially, a derivative right granted by the village assembly, the owner of the general title, termed "certificate of village land", which defines and certifies the village boundaries. A process of popular adjudication was recommended and judicial confirmation in case of dispute was to be provided. Decisions concerning land were to be made at the village assembly's general meeting, while the dispute processing mechanism was to be in the hands of an elder's land council which would also administer a village land registry. Outsiders would be entitled to customary leases not exceeding 10 years. While transactions between village residents were to be allowed, those between outsiders were subject to the consent of the village assembly. Within the village, assignment of matrimonial property was subject to spouse consent.
The National Lands Commission was to administer the granted right of occupancy, as existing, but the allocation process would be elaborate, involving local communities through district land committees and urban ward land committees. The land grant would finally be certified by the land circuit courts.
In the area of land administrations and dispute adjudication the report noted that the existing, machinery had become inefficient, illegitimate and unjust, and thus incapable of "administering land rights/justice". A system comprising a traditional council of elders (Baraza ya Wazzee) was recommended.
(8) See also Shivji and Kapinga, 1997
Above them would be circuit land courts presided over by a professional magistrate with a jury-like panel of elders. Appeals at this level would be to the land division of the High Court where the presiding judge would sit with a panel of elders. Incorporating elders at the various stages was meant to involve ordinary Tanzanians in dispute processing, as a first step towards eradicating the "dual" system of land allocation, with customary law for rural dwellers and statutory law for the modern sector.
5. National Land Policy, 1995
The National Land Policy document addresses four major areas: land tenure and administration; surveying and mapping; urban and rural land use planning; and land use management. As already noted, the critical recommendation of the Shivji Report, regarding the removal of the executive's ultimate power on land, was not accepted. However, the land policy document agrees that land should be a constitutional category. Further, again contrary to the Shivji Report's recommendation, the village assemblies will not be the administrative instance, but rather the village councils i.e. the executive at the village level.
At the level of tenure the National Land Policy agrees with the commission's report that the right of occupancy system be retained. This means in effect recognizing a statutory right of occupancy of not more than 99 years, and an unlimited customary title. The latter would be confirmed by a customary right of occupancy title (Hati ya Ardhi ya Mila) issued by the village council and registered at a district land registry.
The Commissioner for Lands shall be the chief administrator of land and shall appoint officers to administer land, other than village land. Village land shall be administered by village councils. All citizens are to be ensured equal access to land, but access by foreigners would be via stipulations of the Investment Promotion Act, but they would not be able to acquire customary land.
Women's access to land is guaranteed, although the law of inheritance "will continue to be governed by custom and tradition." It was further stipulated that ownership of land between husband and wife shall not be the subject of legislation. On land utilization and protection of sensitive areas, "special areas" would be put at the disposal of investors, while land ceilings, anti-speculation measures and environmental protection were included in the provisions. However, with regard to guidelines on disposal of land, the national Land Policy if full of contradictions. The government's powers of revocation and forceful acquisition of land are retained, however. This is compensated with the recognition of the principle of land value and that of fair and prompt compensation. The Land Policy also provides for a system of land registration for statutory and customary titles.
A new provision is that, having received an offer of right of occupancy and accepting it, and if after 180 days a certificate has not been issued, the letter of offer may be registered with the Registrar of Titles "as notice of impending ownership".
On dispute settlement, the National Land Policy agrees partially with the Shivji Report. It notes that the adjudication machinery should start at the level of "Mabaraza ya Wazee ya Ardhi" (elder's land council) and on the quasi-judicial bodies at the district, regional and national levels, with possible appeals to the High Court on points of law. On village land titling, the Land Policy provides no coherent directive, however.
Finally, on land use management the policy provides a significant policy statement on range lands and related conflicts over livestock access, and, similarly on conflicts arising from land use in protected areas such as game parks. There are also statements on environmental protection, notably on protection of game areas, wetlands, the coastline and fisheries.
However, because of the drawn out nature of the process, the debate over the national Land Policy was unexpectedly low key. Some women's groups, and pastoralists, through their NGO's, took exception to some of the provisions in the preparatory stages of the document, but that was all.
6. The Draft Land Bill
Processing of the Draft Land Bill, indeed the whole process, has been largely externally funded and it is feared by some that the outcome will be unduly influenced the donor agenda, especially with regard to markets, privatization (9) and the creation of a conductive environment for investors.
Fimbo (1996) summarizes these fears as follows:
"What cannot be masked is that the World Bank and the IMF are at the Centre of the Stage. It is not accidental that in 1991 a Presidential Commission was appointed. Its expenses were met from external funds and the printing of its report was also similarly funded by a donor and so was the publication of the National land Policy (NLP), 1995. On approvals of dispositions, the NLP significantly echoes the World Bank position. quot;The consent of the Minister or his appointed officers is not necessary for market transfers to take place." Now the British Overseas Development Administration has come in to complete the task of assisting in drafting a new land code of (or for) Tanzania.
The ODA has provided both funds and a consultant, Professor Patrick MacAuslan of Birbeck college, University of London." (10)
In the course of work on the Draft land, (11) MacAuslan (1996) was guided by six "inarticulate assumption": First, that as a major national resource, land must be used and managed in the national interest; second, the primary importance of providing accountability in the exercise of public power over land, including openness, fairness and impartiality in the administration of land; forth, they need to create conditions for the operation of an efficient and equitable land market; fifth, the need to bring about a greater involvement of the citizenry, both directly and through their representatives, in the management of land; sixth, the importance of providing an appropriate Tanzanian legal framework, and mechanisms, for dispute-settlement and redress of grievances in relation to land management. These principles indicated in turn the necessity of a detailed land law, detailing powers of land officials and the manner in which they exercise their power. It was also necessary to detail the steps needed to be taken before a person obtains rights in land, effect transactions or how to seek redress in case of deprivation of land rights.
With the above assumption s as a basis, nine key areas were covered:
- 1. The role of the Commissioner of Lands.
2. The role of civil society in implementation of the law.
3. Protection of village land and the national interest.
4. Women's right to equality in land matters.
5. Operation and regulation of the land market.
6. Village land administration.
7. Pastoralism.
8. Validating informal tenure transactions.
9. Defining a Tanzanian common law of land.
While the Draft Land Bill concurs with the National Land Policy document and the recommendations of the Shivji Report that village land be administered by village authorities, it emphasized that the functions should be exercised by the village council on a professional basis. In setting out the "legal framework for the exercise by village councils and officials of their powers over land", the Draft Land Bill demonstrates a different view of land management form that of the Shivji Report. (12) Whereas the latter sought to give all powers to village assemblies., constituted of all adults in a village, MacAuslan is dismissive of popular management:
"Whatever might be the theoretical case for mass democracy, it is not practical. Village assemblies consist of all adults in the village; is it really conceivable that such a body could administer village land? The Bill in other words does not subscribe to the thesis of 'the noble peasant'; left alone, peasants will always act for the local good."
MacAuslan argues instead for facilitating the growth of good land managers. Further that if village land management is organized under the assumptions of mass control, simpler titles, simple procedures for processing etc., the colonial duality would be perpetuated. Abolition of this duality form the structure of the tenure system would be a notable achievement of the Land Bill.
The "security to land is dependent on proof of use" principle is also supported by the Draft Land Bill. Definition of the granted right of occupancy is grounded on "occupation and use", and revocation of title is largely due to breach of "use" requirements. Revocation of title "in public interest" is abolished. Customary right of occupancy will now be subject to use conditions, breach of which would have penal consequences, different from those of the granted right of occupancy. This provision is similar in spirit to the minimum acreage bye-laws of the colonial past.
However, while the Shivji Report recommended revocation in cases of breach relating to land under village title, the Draft Land Bill suggests sanctions that fall short of revocation, such as supervision orders or temporary assignment of the customary right of occupancy. Considering the fact that customary title is indefinite and is usually a grant to a person and his heirs in perpetuity, this approach is positive.
With regard to market dealing in land, the pre-1992 land policy had an "anti-commoditization" stance. The National Land Policy document is, however, not clear about this issue, even at times contradictory. However, the Draft Land Bill, comes out clearly in favour of land transactions on the basis of demand and supply. Clause 39 of the Bill provides for the basic thrust: unless specifically required by the Act, no consents or approvals for dispositions are required, even for petty transactions. Only substantial dispositions would require consents.
The role of the Commissioner for Lands in overseeing "just and "unjust" transactions was a key issue at the Second Land Workshop. It was suggested then that the executive would be assuming functions that were beyond its role. In the Bill, land officers and the courts are give supervisory powers.
Finally, the pre-1992 land policy accorded the state an extended role in matters of land allocation and administration. This concept is strengthened in several ways by the Bill. The Bill's stance on this issue seems to run counter to the principles of openness, fairness, impartiality and security of tenure, that underlay the Land Commission's work. It spells our the role of the President as trustee of the land of Tanzania and the rest of the Bill seems to be based on this fundamental principle.. Thus the idea of a National Land Commission as a trustee of the land proposed by the Shivji Report was rejected.(13) Making the executive the sole arbiter and administrator of land can however, not guarantee achievement of the objectives of land reform. With the ambition of creating "conditions for the operation of an efficient and equitable land market" the author of the Draft Land Bill misses the main thrust and spirit of the Land Commission's work.
The Draft Land Bill also suggests a powerful role for the Commissioner of Lands in the whole process of land administration. The powers of the commissioner supersede those of the bureaucrats in the Land Ministry. At every stage of land processing the commissioner has power to intervene, power over consultative process, power to recommend revocations and acquisitions etc.
A number of entirely new features were introduced by the Draft Land Bill, some already noted above. Among the best received ones was the inclusion of women's rights to land in the Bill, equating women's rights of access to land with that of men. Further, it preserves the property rights of women as already provided in the Law of Marriage Act, 1971, including separate property rights between husband and wife, and granting to each spouse the right to acquire, hold and dispose of property or contract, sue or be sued; and the protection of the right of spousal interest in the matrimonial home, including the obligation to give consent on its disposition.
However, on customary land tenure, the Bill still refers to clan land, ownership of which discriminates women. A number of laws, including those of succession, probate and even the law of marriage are currently not in line with the provisions of the Draft land Bill. Notably, the rights of children born out of wedlock as well as the status of divorced women are not clearly spelt out (Rwebangira, 1997, Shaba, 1996).
The Bill provides for pastoralism in three ways; first, by the creation of corporate forms under which pastoralists may organize themselves, with supervisory powers over these entities entrusted with the Administrator General.
Second, statutory pre-conditions are set-out to for meeting the requirements of pastoralists when decisions on land management are made including mechanisms for conflict resolution when their interests collide with those of other land users. Third, provisions are made for an inter-village mechanism for reaching land use agreements.
However, NGO's working with pastoralists were unimpressed by the provisions, which the felt would have little positive impact on their constituency, especially in light of earlier abuse of pastoral schemes. It was also felt that the needs of the pastoralists were given little consideration . For example, though the land needs of a pastoralist are far above those of ordinary peasants or urban dweller, a similar limit of land holding of 2,500 hectares was imposed on them. In this regard, the Bill should be revised as far as the whole question of pastoralist tenure is concerned.
Recent years have seen a rapid growth of rural-urban migration, and growth of informal settlements. There have also been a number of other land transactions that needed formalisation. The Bill seeks to regularize these settlements and transactions. In the rural areas, a major area for regularization regards the 'Ujamaa Vijijni' exercise, which involved compulsory collectivisation of peasants. The exercise lacked legal backing. To regularize this exercise ex post the Draft Land Bill makes provision for a special fund for compensation, with a time limit for claims set at the year 2000.
The Draft Land Bill recognizes the urgency expressed in the National Land Policy document on the importance of environmental protection and makes provisions for them.
Central to the land law process has been the debate on whether statutory changes brought about by legal reforms bring about sustainable improvements. Through donors and international financial institutions opted for evolutionary processes; they differ on who must intervene to bring about change. That donors and financial institutions earlier abandoned the modernization experiment, based on individualization, titling and registration, for evolutionary approaches, makes their case suspect. Shivji and Kapinga (1997) note:
"The result has been an overnight conversion of IFI consultants and do-gooder academics from the West to celebration of customary systems, organic evolution, preservation of indigenous communities and so on. But this conversion is as suspect as the earlier secpticism".
6. Conclusion
The process of creating a new Land Policy and a new Land Act has not been smooth one. A number of observers have even doubted how much the final product reflects the needs of ordinary Tanzanians, as the process, was donor-driven, and that ultimate power over remained in the executive arm of government. Fortunately, the Shivji Commission Report derived form a broad canversing of views and addresses a broad number of popular issues. When the Draft Land Bill is debated and finally passed into a formal statute, it will be possible to subject it to the rigorous critique that such important legislation calls for. Thus while much has been done in the past decade to reform land law in Tanzania, much more awaits to be done.
-
(2) This is still the standard Land Statute. See Chap. 113 of the Laws of Tanzania.
(3) In this "dual economy" the Land Ordinance provided for granted rights of occupancy (a periodic system of land ownership of up to 99 years) for the dominant classes and deemed that the "natives" had customary titles known as deemed rights of occupancy.
(4) It was intimated that in non-literate societies the only evidence of title is proof of use. See "Mtoro Bin Mwamba vs. AG, 1953", Tanganyika Law Reports, p. 327
(5) See for instance The Restriction Act, 1984, and The Acquisition of Buildings Act, 1971.
(6) See Pinckney and Kimuyu, 1994.
(7) See Nyerere, 1966.
(9) See for example Tanzania, 1994.
(10) The "Draft of a Bill for the Land Act" contains 262 Sections in 15 parts with 4 Schedules at the end. The Draft was also reviewed at the Second National Workshop in Arusha where the Tanzanian advisory support group, led by Prof. Fimbo, submitted its report for discussion. Significantly, Prof. I.G. Shivji was absent.
(11) The draft was prepared for the Ministry of Lands, Housing and Urban Development, under an ODA contract, 1996.
(12) See MacAuslan's "Clause by Clause Commentary on a Draft Bill for the Land Act" prepared for the Ministry of Lands, Housing and Urban Development, December, 1996.
(13) See also Shivji, 1996
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