"The law does not speak the Samburu language or the Borana, or the Somali, or the Turkana, or the Maasai. The reason ? All these and other pastoralist groups are engaged in a battle for survival, not against adverse climatic conditions or hostile enemies, but the modern legal systems that seem to work against the traditional pastoralist socio-economic system."
Wangu Mwangi
 
"The Law does not speak the Samburu language..."
(Eco-News Africa, Vol. 3 No. 8, 29 Sept. 1994)
 
"I have to admit that no subject in the (Draft) bill has been more difficult to provide for than Pastoralism."
Prof. Patrick McAuslan
(ODA Land Law Consultant, The Draft Land Bill draftsman, 1996)

1. A Case of Official Abandonment
    
   It is a notorious fact in contemporary literature that pastoralists in Africa have been marginalized in the socio-economic space.² In Tanzania literature on this fact is consistent from the colonial times for all the Pastoralists be they Maasai, ³ the Arusha⁴ and the Barabaig. ⁵ That the institutions of the pastoralists need to be understood for what they are, and that they represent a case of what is practically feasible in their environment is also a line of thinking that has a long history amongst social anthropologists. At the Faculty of Law, University of Dar es Salaam, in the late 70's up to today course materials in "Legal Methods" and in "constitutions and Legal Systems" contain compulsory reading materials on how Dispute Processing is handled amongst the Pastoralists. The aim is to depict how mediation which is the method of dispute processing, namely adjudication. Up to early 70's the Faculty of law was the only graduate law teaching institution for the whole of East Africa. How then does the law fail to speak the language of the Pastoralists?
    
   Hand in hand with the trend above mentioned it is an admitted fact that what is known as indigenous or customary land tenure in Africa, and most colonized countries, has been left in a vague state devoid of a clear interpretation and/or understanding. A deliberate misunderstanding of poverty rights of the colonized peoples was an essential ideological package for the colonizers to justify alienation and control of land for their interests. That the native could not, or rather did not. Actually own the land but only its products on which the native has expended his labour finds philosophical justification as far back as the 18th Century in the writings of John Locke. ⁶ The Philosophical precedent/theme is reiterated in case law in such diverse places like Nigeria, Tanganyika, New Zealand, Australia until exposed as a lie by the famous MABO decision.
    
   In statutory law the philosophical lie is repeated under the Land Ordinance enacted by the Colonial British Government in 1923 where all land is vested in the state and individuals could supposedly own only improvements i.e. the fruits of their lobour upon the land. These products of labour are styled in the law as "unexhausted improvements" which again have been defined narrowly and scholars still wonder if they would include clearing of bush for pasture or against tsetse fly infestation, or they would only be limited to "visiblequot; improvements which a farmer would carry on the land: etc. In short, property rights of the Native are given a "vague" status which allows for a deliberate misconception convenient to the interests of whomsoever including the historic trespasser - the colonizer.
    
   For the case of pastoralist property rights the problem is far more complicated. In 1992 I wrote a paper for the IIED on Pastoral Land Tenure in Tanzania and the conclusion of the then up-date was that this common property regime was yet to be properly recognized by the law and its existence is "very precarious" in Tanzania.⁷ Subsequent literature has kept that viewpoint in focus.⁸ It is clear that within the system of indigenous land rights the pastoralists are worse off. If the colonizers were guilty of ignoring customary rights generally, the indigenous African officialdom is similarly guilty of ignoring pastoral tenure with the same air of prejudice, indifference, ethnic chauvinism and discrimination.⁹ The Range Development Schemes so popular in the last three decades have faced dismal failure largely because of official misconceptions about pastoral socio-economic system which run against all the evidence. It is as if the administrators, lawyers, judges, economists, etc. read the sociological evidence, push it under the table, and then execute and reinforce conceptions which are exactly the opposite.
    
   Yet certain things have been changing and all has not remained the same. The greater part of research community has worked as a singular army to debunk these dimple fallacies.¹⁰ Pastoralists have also come to realize that the law cannot speak their language unless they assert their position in the current power relations. These relations are between their organized communities and the state; and those of the state and powerful economic institutions of the current world order. This movement has been visible in the last decade and clear understanding is growing. The view of the World Bank has radically changed about the socio-economic raison d'être of customary property regimes.¹¹ Theories that were in praise of maximization of profits, modernization etc. have been replaced by a more dynamic flexible and evolutionary conception of customary property rights.
    
   In Tanzania the trend has also been encouraging, the scenario which has been unfolding is as follows:-
    
   First, the colonial legislation and programmes viewed pastoral land as reserves awaiting proper allocation and exploitation. Wildlife reserves and prime land for settlers were always cut-out of the rangelands.
    
   After independence, however, a realization that pastoralism was a way of life which had to be secured in official policy started to emerge in the conservation strategy of the Ngorongoro where multiple land-use plan recognized that wildlife and pastoral activities could be carried hand in hand.¹²
    
   Second, the post-independence state through the adoption of the World Bank's modernisation strategies enacted for the pastoralist development the Range Development Act, 196413 which constituted the official strategy of modernizing the Maasai, and other pastoralists.¹⁴ The debacle of the so-called range schemes is a lesson on not only the limits of legal engineering on social change but a revelation on how the officialdom completely misconceived pastoralism.¹⁵
    
   Third, the pastoralist strategies changed incrementally with the ujamaa villagisation policy. With its agricultural overtones the ujamaa strategy emphasized sedentarisation and in a large measure failed to benefit the pastoralist.¹⁶
    
   Fourth, the liberalisation of the economy and emphasis on privatisation fueled by the IMF/world Bank agenda on markets, privatisation through SAP's has increasingly opened the rangelands to a host of external forces hitherto working only subtly.¹⁷ Land acquired by the state either for direct economic activity or for the 'conservation' (e.g. Mkomazi game reserve and Ngorongoro conservation area); incremental settlement by villagers and state action requiring the sedentarisation of pastoralists; tilting, land use planning and privatisation.
    
   Fifth; a consequent reaction to this process has been a process of land tenure reform which has been undertaken in Tanzania. A Presidential Commission appointed in 1991 has made extensive recommendations on the reform of land legislation and administration and in some core critical areas on pastoralists recourses and land rights it makes key proposals.
    
   
2. The language of the Law and Pastoralist Cases
    
   Practical issues where the law speaks one language and the recipients of it, i.e. pastoralist, speak another language have come to surface in essentially three areas. First, issues related to state action in land alienation where land is taken contrary to legal procedures or without consolation. Second, issue areas where land is alienated as Reserve/Conservation land but the preserved rights are not respected. Thirdly, issues concerning private individual alienation often blessed by the officialdom. A case to case review will shed light on the diametrically opposed world views. Six cases chosen here typify the core issues; all of them except the Mkomazi court cases have received scholarly attention.
    
   2.1 Issue No. 1: Land Alienation by the State
    
   The issue of state supervised land grabbing in Tanzania has been reviewed adequately.
   ¹⁸ It will suffice here to record only its highlights:
    
   

   Case No. 1:19
    
   A public agricultural corporation, NAFCO, is granted land sometimes in the late 70's in Hanang District, Northern Tanzania. The land is for wheat production and it alienates land amounting to 100,00 acres of land in prime pasture land belonging to the pastoralist Barabaig. About 10,000 acres of these are under the jurisdiction of a village government styled as Mulbadaw Village Council. Several individual members of the village together with the Council sue NAFCO on trespass over village land and interfering with customary land rights. The High court finds that a valid and legal property regime has been illegally invaded and declares NAFCO a trespasser.20 NAFCO appeals to the Court of Appeal which rules against the Villagers by holding that the Villagers did not prove that they are natives of Hanang and that for the Council it had no locus standing as it could not own customary land it was only an administrative unit.
    
   Case No. 2:21
    
   The Barabaig through the Legal Aid committee of the University of Dar es Salaam re-organize and bring 2 cases against NAFCO, concerning Gawal Farm comprising 10.000 acres of alienated land and Gidagamowd Farm comprising 12,000 acres. The Gawal Farm case was heard fist and the Plaintiffs applied for a representative suit to appear for all the native residents of Gawal. This was apparently granted. The representative Plaintiffs went through a grueling cross-examination to prove they are native residents of Gawal. Court testimony was strengthened by the oral evidence of Dr. Charles Lane the leading sociologist on Barabaig socio-cultural system. The Court held that yes NAFCO had trespassed over the Gawal land but only in relation to the Plaintiffs that appeared in Court since the representative capacity was not properly validated. The Plaintiffs could not get their common land back but would get monetary compensation. The Plaintiffs were dissatisfied. They have lodged an Appeal to the Court of Appeal. The Appeal is yet to be heard. The second case on Gidagamowd farm is still in the process of being heard in the High Court. Here again the first witness was Dr. Charles Lane who gave a through profile of pastoralist property tenure. The case is sub-judice and one cannot foretell the result.

   
    
   The result of the two cases, i.e. Mulbadaw and Gawal farms, where judgment has been obtained tow trends are clear. Whilst the law of the land i.e. the Land Ordinance, 1923 recognizes customary titles to land the definition is left wide enough to allow the officialdom to interpret ownership as it suits the existing policy. Consequently, the two cases do not say categorically that the Barabaig in Janang to not own the rangelands, they simply avoid the issue and deal with technicalities. Where both the native residents, the local government authority at community level, and scholarly study has clearly indicated ownership of the rangelands of Hanang is by pastoralists the Courts are vague and uncertain. It was proved in the Gawal case that actually when NAFCO took over the land and farmed it for about 5 years from about 1981 it did not even have a formal title! To the pastoralists the courts seem to recognize much more the superior non-legal interests of the state and external economic players.
    
   Issue No. 2 : Multiple Land -use in Pastoral Land
    
   The alienation of pastoral land also suffers from conservation policies of the Government. It has generally been noted that Wildlife protected areas take about 25% of Tanzania. Distinction is made between Nation Parks (which include the Ngorongoro Conservation Area). Game Reserves and Game Controlled Areas. ²² Whilst the national Parks exclude human settlement (except in the case of Ngorongoro), the Game Reserves and Game Controlled areas allow a multiple land-use arrangement whereby pastoralist maintain controlled access to resources. The case of Ngorongoro is unique for it is one of the earliest examples where a deliberate attempt was made to introduce a multiple land-use concept that allowed wildlife and pastoralists to co-exist. Yet the whole issue of multiple land-use concept has had surprising contradiction:²³
    
   

   Case No. 3: Involvement of Pastoralist in Evolving a Management Plan for Ngorongoro²⁴
    
   A case study of involvement of pastoralists in the management plans of the conservation area exposes how widely held belief, or participation, involvement of the recipients of programs in planning and execution, etc. are actually an empty claim. The NCA is run by the NCA Authority (NCAA) which over years has failed to adequately include pastoral development in its multiple land use-policy. Recently, with the assistance of IUCN, it has produced a highly lauded General Management Plan (1996). Researchers who have reviewed the participation standards etc. have found astonishing absence of participation. They recorded the views of the pastoralist, issue to issue, and found a big diversity between the views of the pastoralists and those of the Authority.²⁵ For example, whilst under the Ngorongoro Ordinance, 1959, cultivation could be banned, this was done only in 1975 without consulting the residents. The researchers found out that controlled cultivation, as practiced by the pastoralists, was compatible with wildlife conservation.²⁶
    
   Yet in an anti-cultivation operation in 1987 the NCAA Reports that it arrested 666 pastoralist of whom 9 were jailed for 3 months and 549 fined about Tshs. 515,600. Fosbrooke reported to the Presidential Land Commission that actually the so-called offenders were convicted of a non-existent offense! In a clear analysis of enabling statutory powers of NCA the Authority had no arrest and conviction powers.
    
   The Commission recommended that conservation as a matter of principle is not incompatible with human activity. Hence small-scale subsistence cultivation for the resident pastoralists be allowed. Yet the dispute goes on todate.
    
   Consequently, both at the level of land rights and cultivation the Authorities' perceptions are different from those of pastoralists. Whilst the NCAA sees the land tenure status of the pastoralists as "vague" the pastoralists "regard their customary rights to land as unambiguous and sacrosanct." While the authorities assume the pastoralists have "participated" in producing a General Management Plan the pastoralists say the have not been consulted!
    
   Case No. 4: Expulsion of Pastoralist from the Mkomazi Game Reserve²⁷
    
   The Mkomazi Game Reserve (MGR) is established in the north-east of Tanzania alongside the border with Kenya, south of the Tsavo National Park. It was established in 1952 and in the enabling Charter pastoralist rights were to be preserved. The Director for Wildlife, Mr. Costa Mlay, in his testimony before the Presidential Commission misled the commission by saying the pastoralists invaded the MGR in the 1960's and then later the Directorate of Wildlife had to enter into a compassionate agreement with the pastoralists to allow them to stay in the MGR for a while and hence the expulsions in 1987 were justifiable.
    
   The pastoralists are in Court where they have lodged 2 cases challenging the eviction. The facts in one of the cases are as follows:
    
   Lekengere Faru Parutu Kamunyu and 16 Ors Versus (1) Minister for natural Resources, Tourism and Environment, (2) the Director, Wildlife Division, (3) Project Manager, Mkomazi Game Reserve and (4) The Attorney General (HC-Moshi) Civil Case No. 33 of 199428
    
   The Applicant pastoralists claim to be native resident "for hundreds of years" of an area in north-east Tanzania known as "Alaililai lemwazuni" in Maasai language and today styled by the law as Mkomazi Game Reserve. The area was made a game reserve under the Fauna Conservation Ordinance, Chapter 302 of the laws of Tanzania, in 1951. However its creation did not affect pre-existing and future customary land rights of the natives as these were expressly safeguarded by statutory and positive assurances by the government that these rights would not be disturbed without the consent of the resident pastoralists. Neither did the legislative changes brought about by the Wildlife Conservation Act, 1974 affect the safeguards. The Game Division itself in 1952, 1963, 1968 and 1971 made a list of pastoralists who were found in the Game Reserve and whose rights wee safeguarded. The first government directive came out in 1987 to get all pastoralists out of the reserve. They however complained and got a brief extension. Nevertheless in 1988 by a directive from the Principal Secretary of MLUD, Mr. A. Mshangama, the Wildlife Division ordered all pastoralists out of the MGR.
    
   The Applicants claim in court that they were forcefully evicted from their ancestral lands, their homesteads were burnt down and livestock maimed or killed; and that their customary way of life has been broken down resulting into emigration of their members to Kenya and to urban areas. The Plaint filed in court particularizes 12 areas on which they have suffered damages:
    
   

   (i) Their constitutional right to live and enjoy their respective lives has been infringed.
    
   (ii) They have, without due process been denied their basic right to reside in their traditional and ancestral lands.
    
   (iii) Unlawful eviction constitute a serious infringement of the claimants' customary land rights of natives of Tanganyika as recognised by land laws of Tanzania.
    
   (iv) Claimants find themselves in drought condition, with their dwindling livestock lacking grazing and water and surrounding by settled villages.
    
   (v) No plans to relocate the claimants were made.
    
   (vi) Shortage of grazing for their livestock has attracted exorbitant fines of up to Tshs. 400,000/= for livestock straying into the MGR.
    
   (vii) Frequent beating and general harassment by employees of MGR.
    
   (viii) Loss by diseases and starvation of cattle, goats, sheep and donkeys estimated at 10 billion shillings.
    
   (ix) Loss of access to customary holy places and sacred shrines.
    
   (x) Loss of grazing lands has led to vicious deprivation of plaintiffs' employment, livelihood and ultimately, their right to life.
    
   (xi) Evictions without compensation and alternative grazing land has reduced the Maasai pastoralists into squatters surrounded by hostile agricultural communities.
    
   (xii) Criminalisation of claimants pastoral activities.

   
   The Case is sub-judice and awaits the courts decision.
    
   While the cases have been going the authorities have granted permission to the George Adamson Wildlife Conservation Trust to translocate to Mkomazi. Black rhino from south Africa and wild dogs from Naberera in the Maasai steppes to the MGR and also the Trust is constructing an electrified wire-fence of 41 kilometers powered by solar power which "produces enough voltage that is capable of causing a shock to the animals, but may result into death if the power is not switched of on time."²⁹ The press has voiced serious concern on the going-on at Mkomazi and the credentials of the "Trust" are highly questionable.³⁰ The pastoralists, through their advocates at the Legal Aid Committee, have also filed a temporary injunction application against the "Sanctuary programme" which excludes the pastoralists and, in effect, prejudices their case.
    
   And in both cases there is an interlocutory application challenging the introduction of black rhino and wild dogs to the utter exclusion of human beings. The last 'Civic project' of Henry Fosbrooke, before his death, was an attempt to introduce a multiple land-use programme for Mkomazi.
    
   The law clearly fails to speak the Maasai language in Mkomazi. Zebra and Giraffe are more prized than human beings. 31

   
    
   Issue No. 3 Land Alienation by Individuals and through "Privatisation" Initiatives
    
   Examples abound on how this process puts the Rangelands in high risk. Charles Lane and Richard Moorehead consider this incremental process as the most devastating to the rangelands.³² Whilst they agree with other researchers that in general Titling is false security they find it worthwhile, as a temporary measure, to stop the process of invasion of the rangelands by non-pastoralist groups or individuals. Two cases exemplify this phenomena.
    
   

   Case No. 5: Acquisitions of Tanzania Cattle Products Ltd in Simanjiro and Ololsokwan.³³
    
   A foreign company named Chase du Afrique had in 1981 approached the district authorities of Kiteto to get land. The district Authorities refused apparently because the company was goo foreign and in 1985 the company, after it had changed its name to Tanzania Cattle Products Ltd (TCP) and even included a local director in its director in its Board of Directors, make an application for a large tract of 200.000 acres for ranching purposes. However, when pastoralists realized they were being swindled into a strange land deal they protested to their member of parliament and whilst the Minister for Land, Getrude Mongella, had already approved TCP application, her successor Arcado Ntagazwa reduced the approval to 50,000 acres. The pastoralists refused to move form the area until the Prime Minister, Joseph Sinde Warioba, gave an order that the land should not be alienated. Testimony before the Presidential Commission is telling . Witness KIT. 6 stated:
    
   "....The cattle company just came in and grabbed a good portion of land in the Northern part of Kiteto, about 224,490 acres. Villagers were not involved and , in fact, the villages around the area, about thirteen in number, never approved such a large alienation to TCP.
    
   The disappointing thing is that although the villagers were not consulted on this issue, the regional and national land authorities approved the alienation. This was in total disregard of the procedure for acquiring land in or within village lands. The process must start from the village first and get approval of the villages."
    
   The witness even complained to the Commission that one of the members of the Commission was a Director of TCP. The Report does not say who this is. By 1991 TCP could not go, or staying in Simanjiro and they Decided to move to another area. Thus in December 1991 TCP lodges an application for land in a village called Ololosokwan for 1000,000 acres. The application is granted on condition that the company enters a joint-venture with the village and they were granted 25,000 acres through consultations with pastoralist village leaders. However the markings were made without tools and only by pointing at physical marks e.g. streams and trees, and the villagers were later appalled at what really amounted to 25,000 acres. When the Villagers increased their protest the ministry of land cancelled TCP's title which in turn went to court and won against the government. From then, TCP relegated all plans to establish a ranch and instead put up a private part in the name of "eco-tourism". It has ordered all the pastoralist out of the land and recently TCP has sold its land to a South African company which owns the Ngorongoro Crater Lodge. The pastoralists have gone to court and the case is still pending.
    
   Neither the villagers of Simanjiro nor those of Ololosokwan understand law. It speaks definitely a very different language from theirs.
    
   Case No. 6: Land Alienations in Lolkisale Village, Monduli District³⁴
    
   The Lolkisale area is located in Monduli District, Arusha Region, on the Rangelands of Northern Tanzania. The Village borders Simanjiro district to the South. It also borders the famous Tarangire National Park, whilst the village is within the so-called Simanjiro Game Reserve. It occupies an area which is used frequently by wildlife on seasonal migratory routes. Land alienations to non-pastoral groups have been carried out either officially or semi-officially so extensively that the Presidential Land Commission showed this to be a typical case of "land grabbing". Land granted to individuals with Title Deeds, under dubious procedures was more than 10,000 acres. The grantees included the Regional administrative officials (the Regional Commissioner heading the lest with 1,000 acres); military leaders, prominent businessmen etc.
    
   To cap it all the village was the victim of one of the largest single private alienations in Tanzania - the notorious Steyn farm case. Sometime in 1979 a European named Hermanus Phillip Steyn applied for 50,000 acres of land in the area. He formed a company named Rift Valley Seed Company and strangely was offered some 381,000 acres of land extending between Monduli and Kiteto District. Considerable investments were made by Mr. Steyn whose "concession", which he had fenced with barbed wire, interfered even with wildlife migration routes from Tarangire National Park. Due to public uproar the government nationalized the property in 198335 and declared Steyn persona non grata and by 1988 transferred the property to NAFCO. When the Presidential Commission went to Lolkisale they found the parties locked in raw dispute:
    
   

   "The disputants in this matter feel bitter. This is illustrated by the fact that Villagers have constantly resisted their displacement. Moreover, the area was the only place suitable for pastoralists because the other areas are normally invaded by calving wildebeest carrying with them a disease harmful to cattle."³⁶

   
    
   The acquisitions did not follow laid down legal procedures, or where they apparently fooled them did not include consultation with the villagers and clearly indicated how powerless the villagers were. The Commission observed that it demonstrated "the extreme insecurity of their land tenure....(and) ....to the lack of control of the villagers over their land which, in turn, leaves their land under the control of the executive officers of the government."³⁷
    
   

3. Securing Pastoral Land Rights in the Draft Land Bill (DLB)
    
   3.1 The 'Model' regulatory legal regime for the Pastoralists
    
   In the past decade scholarship has shifted from the old paradigm of disregarding the survival strategies of pastoralist to a new paradigm which incorporates the perceptions and strategies of the pastoralist.³⁸ The critical areas of concern are those which have generated issues which Lane and Moorehead have categorized in the three general areas reviewed in the last section. The new approach to range management is based on 3 key hypotheses which are firstly, that carrying capacity of livestock on the land has to take account of management objectives of the pastoralists themselves. The tenurial implication of this is that control and devolution of authority should go or be based on the local groups/communities. The second hypothesis is that on the rangeland productivity is normally unpredictable. Hence the tenurial implication would entail the ability to respond quickly in an adaptive strategy hat incorporates a corpus of rules which are simple, flexible and not rigid. The third hypothesis is that on the rangeland there exists resources that are heterogeneous in their nature. The tenurial implications here are that the tenure system must provide for access to or incorporation of a range of agro-ecological areas.³⁹
    
   The customary arrangements historically managed to take care of the three areas above mentioned. Today constraints related to lack of support from wider socio-economic structure, lack of political power which has been captured by sedentary population, heterogeneity of interests within pastoralist group; barriers to transhumant routes, civil conflicts, etc. have made it difficult to maintain the status quo. A new social contract for the pastoralist is necessary to evolve the new management strategy of the pastoralists.⁴⁰ Given the importance of rangeland resources the Government of Tanzania has issued a livestock Policy for Tanzania in the 1980's which adopts the recommendations of the 1983 Agricultural Policy of Tanzania and hence basically unsuitable for Pastoral Tenure.⁴¹
    
   An attempt has been made to see what a rule made for this would incoroprate.⁴² Admittedly the model has to include the dimension of variability which is associated with the pastoral lifestyle. Of these three have been found to be important: (I) Variability in ecological settings; (ii) Variability in land-use patterns among pastoralists, including requirements for resource access; (iii) Variability in mobility pattern among pastoralists.
    
   The resultant rule model has the following salient features: First, there must be rules that establish conditions of collective choice within the group; second, rules of operation that regulate use of the common property and; third, rules that define external arrangements, i.e. the decision making structures outside the immediate group that impinge upon the use of the commons. The first type is a constitutive corpus of rules, whilst the second type covers the authority structures and access to common resources and the third type covers external arrangements particularly surrounding conflict management, e.g. with state when it seeks to create supra-group interests and rights.
    
   3.2 The 'Rule Model' compared with The Draft Land Bill
    
   Elsewhere extensive analyses have been made about the essential elements of the Draft Land Bill.⁴³ Suffice it to say the Bill covers all the major areas of land ownership except areas covered by the Town and Country Planning laws and Laws of Succession. It is submitted that this omission is fatal to the minimal effectiveness of the proposed land law. In the Rural areas disposition and transfer of property depends on customary Laws of inheritance which are patriarchical and may render useless all the high sounding egalitarian provision of the DLB when applied to Village land. Taking the Rule Model as a given the DLB provides for Pastoral Rights as follows:
    
   A: Constitution of Authoritative Bodies
    
   Clause 4(2) of the DLB defines precisely the Right of Occupancy as a specific category of land incorporating all forms of ownership, statutory and customary, and all categories of land are brought within the protection of Article 24 of the Constitution of Tanzania and further states:
    
   "...for purposes of that article, the Occupation of land shall be taken to include the use of land from time to time for depasturing stock under customary tenure applicable to pastoralists."
    
   That pastoralist land rights are specifically recognized by statute is a major step forward. The DLB then recognizes three categories of public land: (a) General land; (b) Village land and (c ) Reserved land. General land is land that is technically "free" for allocation. Village land means what it says and Reserved land is land preserved under Reserves Statutes (e.g. National Parks, Game Reserves, Forest Reserves, Marine Park, Public Recreation parks, etc.) Pastoral territory is hence largely within village land.
    
   The DLB recognizes the existence of pastoral land/territory as part of Village land. Clause 57(1)(e) states that village land shall consists, inter alia, land which the Villagers have been, during the twelve preceding years, occupying however such persons were allocated; and it would include:- (a) land lying fallow at any time during the said preceding twelve years; (b) Land used for depasturing cattle belonging to Villagers or to persons using that land with the agreement of the Villagers or in accordance with Customary law: (c ) Land customarily used for passage to land used for depasturing cattle."
    
   Once the proper boundaries of the village are identified and agreed upon the Commissioner for Lands issues a Certificate of Village Land (CVL). The Certificate is issued in the name of the President and identifies the Village Council as the overall authority in the Management of Village Land.⁴⁴ Where the villages are predominantly pastoralists the CVL shall affirm the use, for purposes of depasturing cattle, of land other than village land which is customarily so used by the pastoralists.⁴⁵ The Village Council has its corporate mandate under the Local Government (District Authorities) Act, of 1982. It is the lowest rung in the Local Government hierarchy in the rural areas. The Council is given authority to negotiate for land schemes, participate in and organize mediation when conflicts arise, regulate land use in the Village, make reports to the District authorities and the Commissioner for Lands etc. The assumption here is that the Village council is the democratic representative organ of the Villagers. One has only to revisit the Cases reviewed above to conclude that the assumption unfounded.⁴⁶
    
   The Villager who is dissatisfied with the manner in which the Village Council manages land in the Village is given by the DLB the "option" of suing the Council.⁴⁷ Furthermore, the Village Council is enjoined to report on the management of village land to the Village Assembly, comprised of all adult members of the Village, at least once in every two months. A similar report has to be made to the District Authority. Where the dissatisfied party is the Village Assembly (or where it is a group of individuals not less than 100) then the Minister for Lands has to be informed, who in turn shall consult with the Minister for Local Government on this undesirable state of affairs, and then he shall advise the District council concerned to try to resolve the issue with the Villagers Council.⁴⁸ Otherwise the Minister may direct the Commissioner for lands to issue directives to the Village Council or the Minister may appoint an Inquiry under the terms of the Act.⁴⁹
    
   The whole procedure is faulty in the sense that a solution to the Council's mismanagement s not grounded in the democratic powers of the Village Assembly but rather on the bureaucratic hierarchy of officials who are expected to rescue the 'captive' Village Assembly from its own Council!.⁵⁰
    
   B: Rules Regulating Use Of commons Under The DLB
    
   It is standard provision of the DLB that no grant of land for over 2,5000 ha shall be valid unless consented to by the President.⁵¹ The celining is presumably proposed to ensure that large grants of land are appropriately considered e.g. in the case of investors such as Steyn or the Loliondo Arab Sheikh.⁵² However, the provision misses the point in relation to pastoralists. If land is considered under the territorial conceptions it is obvious that to the pastoralist with a minimal herd of 100 units a grant of 2,500 ha is only a starting point.
    
   Pastoralists under the DLB may be granted customary titles peculiar to their dominant activity. What constitutes pasture/grazing land may be identified and authoritatively determined through meditation.⁵³ Where the land extends over several villages a joint management programme between the villages may be created within the terms of the DLB.⁵⁴ When the process of adjudication is being carried out pastoral land use and occupation uninterrupted for over 12 years is to be recognized as a valid benchmark for title recognition.⁵⁵
    
   A certificate of the Customary Right of Occupancy (CRO) may be granted and signed by the Chairman and Secretary of the Village council.⁵⁶ It is to be countersigned by the Commissioner for Lands and sealed. It is for an indefinite period for citizens of Tanzania.⁵⁷ Conditions for use may be imposed by the Village Council but statutory implied conditions include, inter alia, for pastoral land that the grantee:
    
   
   "... in the case of land to be used for pastoral purposes, use the land in a sustainable manner in accordance with the highest and best customary principles of pastoralism practiced in the area"
   
    
   It is submitted that this is a progressive provision in the sense that it contains an enabling statutory reference to the validity of customary rangeland management.
    
   Further, who should consist the valid user-group that may be recognised by law as the legal entity entitled to the pastoral CRO? If the process is made through mediation the identification shall be made to an Adjudication Officer who must be satisfied of the existence of "a group of persons are and have been in peaceable, open and uninterrupted occupation of or have similarly used for pastoral purposes village land for not less than twelve years." And this group of persons is the one which shall determine the group of persons who may be entitled to a CRO over the pastoral land.⁵⁸ The group may then be advised of the benefits of incorporation under the Trustees' Incorporation Ordinance Cap.375; and the Administrator General has to be notified.⁵⁹
    
   Where an obvious conflict exists within the Village due to competing customary claims for pastoral or agricultural purposes and the Village Adjudication Committee, or the Adjudication Officer, is convinced that the groups may like to co-operate, may prepare a Co-Occupancy Scheme.⁶⁰ The Scheme would record the rights of each user group and create a basis for co-existence. Access to land shall be managed through legal concepts such as Easements and Co-Occupancy.⁶¹ The scheme will provide for a dispute processing mechanism about "the joint and shared land use and tenure."⁶² The draftsman of the DLB finds this provision on a Co-Occupancy Scheme to be original and "an effective mechanism to develop co-operative land sharing arrangements between pastoralist and agriculturists."⁶³ Accordingly, any scheme, once adjudicated, is to be registered with the Registrar of Land titles.⁶⁴
    
   The core proposal in the DLB which seeks to replace the Management Model incorporated in the Range Development and Management Act, 1964 (RDMA), is contained under sub-part 4 on "Land Associations". The draftsman of the DLB proposes these as "an alternative approach to pastoralists and other groups of persons wishing to occupy land on a Communal and Collective basis".⁶⁵ He rejects the RDMA for being excessively top-down; and the Kenyan Act i.e. the Land (Group Representatives) Act, 1968, for giving little organizational flexibility to the Groups. He approves the South African approach which apparently allows the group to choose whether to adopt the statutory model or formulate their own (i.e. the South African Communal Property Associations Act, 1966). In terms of defining who is to constitute the Group which would in turn form the Association the DLB identifies it with the tribal entity (either related through consanguinity or territory). The DLB established the office of the Administrator of Land Associations who is to regulate the Land Associations.⁶⁶ He shall deep a Register of Associations which shall contain all information on the said Associations and be open to the public for inspection.
    
   The Administrator may recognize traditional and other associations and incorporate their trustees under The Trustees' Incorporation Ordinance Cap. 375.67 For groups which are not traditional the Administrator shall assist them in constituting themselves as an association, incorporating them, the drafting of a constitution and electing their Trustees. Generally the Administrator has powers to undertake inquiries in cases of dispute, to advise the parties, even to de-recognize or de-register an association.
    
   The fact that the traditional associations are recognized under the DLB is a progressive provision. However, the omni-presence of an executive official of the government i.e. the Administrator-General, here baptized as the Administrator of Associations, leaves much to be desired.⁶⁸ The powers he exercises in terms of control, advise, registration, de-registration, etc. gives him legislative, executive and judicial powers in a single stroke. Let alone the fact that this bureaucrat has also other powers of control under the Trustees' Incorporation Ordinance Cap.375, which nothing in the law as it is stops him from using if he so wishes. The executive leanings of the DLB renders worthless much of its positive recommendations. The associations under the control of the Administrator would definitely be powerless against orders of the executive for otherwise they may be de-registered.⁶⁹
    
   The paradox of the recommendations contained in the DLB is that the statutory fallback has been tested before. R.W. James in 1970 was writing on the merits and demerits of the Range Management Statutes and also the possibility of villages incorporating themselves under the Trustees' Incorporation Ordinance. He found both statutes short of being an adequate statutory vehicle for registering and recognizing common property regimes.⁷⁰ The present recommendations cure some of the weaknesses pointed by James, but still fall under the bureaucratic scheme which fails to avoid the so-called "top-down" approach that presumably McAuslan sets out to avoid.
    
   C: Rules defining External Arrangements
    
   Apart form reading into the provisions of the DLB the structure of relationship between the villages and state authorities is clearly provided for as a separate category. The provisions regarding pastoralists actually appeared in the Original draft as addendum to each provision regarding Agriculturists. For example where clause 29 provided for access to land, Clause 29A would-be added to provide for Pastoralists. It was evident to the workshop participants that the "A" came in as an Afterthought! Hence the structural relations between Pastoralists, who occupy the rangelands which are extremely prone to alienation, and external authoritative bodies are not clear at all. The submission by Prof. Shivji and others that the structure of the DLB is actually a top-down one applies to organisations relating to herders. Even if the DLB had been the law when the cases presented herein occurred one is unsure whether the provisions in the DLB would have secured the rights of the pastoralists.
    
   
4. Conclusion
    
   The DLB contains some positive provisions for a rational, flexible and working structure for pastoralists. Yet it suffers from the general critique that as it leans for its support on the executive id disenfranchises the holders of land by making them powerless. The DLB does not go far from the creators of the Land Ordinance 1923 that it is, according to Andrew B. Lyall, an "exercise cynicism" appearing to grant rights whilst it takes them away.⁷¹
    
   The DLB appears to recognize Customary land Rights, the uniqueness of pastoral land tenure, the necessity of providing space for the devolution of tenurial arrangement rational to the present circumstances, etc.
    
   Yet it gives extensive powers of control, consultation and directive to an officialdom whose record is sadly despicable.
    
   Hence it is imperative to go back to the advise often repeated by researchers in the area. Rules per se cannot empower communities to secure their interests, rights and their human dignity. They may prove to be vehicles for that struggle but only if the recipients are politically organized to empower themselves in the process of asserting what is theirs. One must end with a sobering quote from Lane and Moorehead:
    
   Pastoralists are unlikely to be able to assert rights to communal lands in the push for privatisation that is well underway throughout Africa today. Without a shift in power from the state to local land users, from donors to recipients, from wealth to poor members of pastoral society, then the current confusion and damage can be expected to persist. Devolution of power is unlikely to occur without concerted pressure from below. Rangeland users must be empowered if they are to compete on equal terms with other land users, provide a challenge to the top down approach, and begin influencing land policies in their favour.⁷²

¹ McAuslan, Patrick. Notes on "A Draft Bill For a Land Act" a Presentation to the MLUD Workshop on the Tanzanian Land Act, Nov. 1996.
 
² Galaty J.G. and Johnson D.L (eds) 1990 The World of Pastoralism: Herding Systems in Comparative Perspective (The Guilford Press, London). Also Scoones, I. (ed) 1994) Living with Uncertainty: New Directions in Pastoral Development in Africa (ITP, London).
 
³ Sear T. and R. Waller (eds) 1993. Being Maasai: Ethnicity and Identify in East Africa. (Mkuki na Nyota, Dar es Salaam).
 
⁴ Gulliver, P.H. Social control in an African Society (Routledge & Kegan Paul, Lond. 1963)
 
⁵ Wilson, G. "The Tatoga of Tanganyika" 33 & 34 Tanganyika Notes and Records (1952/53).
 
⁶ Tully, James: "Aboriginal Property and Western Theory. Recovering a Middle Ground" in Paul et al. (1994) Property Rights (CUP, London)p. 153; at pp. 158-162.
 
⁷ Tenga, Ringo. Pastoral Land Rights in Tanzania; A Review (IIED, Land. 1992)
 
⁸ Lane, Charles 1996. Pastures Lost: Barabaig Economy, Resource Tenure, and the Alienation of their Land in Tanzania (Initiative Publishers, Nairobi); Mwaikusa J.T. "Community Rights and Land Use Policies in Tanzania: The Case of Pastoral Communities" Journal of African Law (1993) Vol. 37 No. 2
 
⁹ Aneclet, A.O. (1977) "Is Pastoralism a Problem? An Overview of Opinions and views on Pastoralism and Pastoralists in Tanzania since 1870" (Jipemoyo Seminars, UDSM, 1977) Mimeo.
 
¹⁰ Platteau Jean-Phillipe, 1995. Reforming Land Rights in Sub-Saharan Africa; Issues of Efficiency and Equity Discussion. Paper No. 60 UNRISD.
 
¹¹ Migot-Adholla, S. et al. (1991) "Indigenous Land Rights Systems in Sub-Saharan Africa: A Constraint on Policy?" 5(1) World Bank Economic Review 155-75.
 
¹² Arhem, K (1985) Pastoral Man in the Garden of Eden: The Maasai of the Ngorongoro conservation Area, Tanzania (Uppsala research Reports in cultural Anthropology)
 
¹³ See analysis in Tenga R.W. (1992) Ibid.
 
¹⁴ See graduate dissertations at UDSM in 1970's: Ndagala, D.K. 1974 Social and Economic Change among the Pastoral Wakwavi and its impact on Rural Development (MA, Dissertation, UDSM); Parkipuny, M.L. 1975 Maasai Predicament Beyond Pastoralism (MA Dissertation, UDSM); and A. Odhiambo Anacleti 1975 Pastoralism and Development: Economic Changes in Serengeti District 1750-1961 (MA, dissertation,UDSM)
 
¹⁵ Hoben, Allan 1976 "Social Soundness of the Maasai Livestock and Range Management Project" (Mimeno). Paper prepared for USAID Mission, Tanania.
 
¹⁶ Ndagala D. (1982) "Operation Imparnati: The Sedentarisation of the Pastoral Maasai" 10 Namadic Peoples.
 
¹⁷ Lane, Charles and Moorehead, R. "Who should Own the Range? New Thinking on Pastoral resource in Drylands Africa" Pastoral Land Tenure Series No. 3 (IIED, London, 1994) pp. 18-20.
 
¹⁸ Lane (1996) supra in pastures Lost; See also Tenga, R.W. and kakoti, G. "The Barabaig Land Case: Mechanics of State Organized Land Grabbing in Tanzania" in IWGIA's (1993) Never Drink form the same Cup Published proceedings of the Conference on Indigenous People of Africa in Tunne, Denmark.
 
¹⁹ NAFCO vs. Mulbadaw Village Council and Others (CA) Civil Appeal No. 3 of 1986.
 
²⁰ See D'Souza, Ag.J. in Mulbadaw Village Council and 67 Others vs. NAFCO (HC-arusha) Civil Case No. 10 of 1981. The judgement was delivered on 3 of December 1984. (A published report of the Case is to be found in Peter, Chris Maina Fundamental Rights and Freedoms in Tanzania: Case Law (Max-Plank Institute, Heidelberg, Germany)
 
²¹ Yoke Gwaku & Ors vs. Gawal Farms and NAFCO (1988) and Ako Gembul & Ors vs. Gidagamowd Farm, Waret Farm & NAFCO (1989).
 
²² Chachage, C.S.L. "The Land Policy Paper and the Tenure in National Parks, Game and forest Reserves" Paper presented at LARRI Workshop on the National land Policy, held at the British Council Conference, Dar es Salaam, 3rd of April, 1996 (Mimeo).
 
²³ Rugumayo, Caroline R. 1997 The Politics of Conservation Area Management: On Actors, interface and Participation - The Case of Ngorongoro Conservation Area, Tanzania [First Draft for Comments - Ph.D. Dissertation] contains exhaustive material on the whole process of involving herders, officials, donor agencies etc. in the process of producing a Multiple-Land -Use management Plan for Ngorongoro.
 
²⁴ URT: Presidential Land Commission Report. Vol. 2 Dispute No. 9 "The Case of the Maasai of the Ngorongoro Conservation Area" pp.37-41.
 
²⁵ Lane, Charles, "Ngorongoro Voices: Indigenous Maasai residents of Ngorongoro Conservation Area in Tanzania give their Views on the Proposed General Management Plan." Working Paper of Forests, Tree and People Programme, SLU, Uppsala (1997).
 
²⁶ Lane (1997), ibid., pp.17-20; also Caroline Rugumayo, 1997 Supra et passim.
 
²⁷ URT. Presidential Land Commission Vol. 2 Dispute No. 21 pp. 83-86 "Mkomazi Game Reserve Boundary Dispute". Unfortunately the Commission treated the dispute as a boundary issue.
 
²⁸ The other Mkomazi pastoralists' case which is similar to this one and also lodged in Court by Legal Aid Committee Advocates is styled: Kopera Keiya Kammunyu & 44 Ors vs. The Minister for Natural Resources Tourism and the Environment & 3 Ors [HC-Moshi] Civil Case No. 33 of 1995. This also sub-judice in Moshi.
 
²⁹ "The Guardian" Daily Newspaper p. 5, July 5, 1995 "The First Tanzanian Rhino Sanctuary Coming" by Patrick Mgawangi.
 
³⁰ See Chachage (1996), Supra, pp. 16-17, where he discusses the Mkomazi issue and clearly show how officials of the Wildlife Department and the Minister had even allowed Big Hunting to go on by operators who include their own relatives.
 
³¹ Another "Mkomazi Case" more in line with the "Boundary Dispute" as seen by the Presidential Land Commission has been filed in the High Court Registry in Moshi styled as: Hussein Kambio & 179 Others vs. Attorney General and 2 Ors. Civil Case No. 23 of 1995
 
³² Charles Lane and Moorehead. Who should own the Range? New Thinking on Pastoral Resource Tenure in Drylands Africa. (Pastoral Land Tenure Series, No. 3 IIED) pp. 18-19.
 
³³ Shivji's Commission Report, Vol. 2 dispute No. 5 "The Dispute Between Kiteto villagers and the Tanzania Cattle Products Ltd" pp. 26-30
 
³⁴ URT: Shiviji Land Commission, Vol. 2 pp. 31-33; Reviewed extensively by Halvor Woien (personal Communication) July 1997, and see Chachage (1996), supra, p. 16.
 
³⁵. Act No. 20 of 1983.
 
³⁶ Presidential Commission, Vol. 2 Dispute No. 7 "The Rift Valley Seed Company Ltd (The Steyn Farm) Dispute p. 35
 
³⁷ Ibid., p.33
 
³⁸ Behnke, R.H. (1992) New Directions in Africa Range Management Policy. Pastoral Development Network Paper 32C (Overseas Development Institute, London).
 
³⁹ Lane and Moorehead (1994) pp. 20-28
 
⁴⁰ Lane & Moorehead give 12 points to be considered, pp.28.
 
⁴¹ Koggani, D.M.K. 1995, Range Management in Development of Land Use Planning and Land Tenure System in Tanzania. (URT: Range management FAO-NLUPC Project Report)
 
⁴² Rose, Laurel (1994) "Study on Pastoral Land Use and Common Property Regimes". [URT: A MLUD Project Report-Land Component]. The study adopts with approval the Common Property Rules Model designed by Oakerson: See Oakerson, R.J. 1986. "A model for the Analysis of Common Property Problems". In Proceedings of the Conference on Common Property Resource Management. (National Academy Press, Washington DC).
 
⁴³ McAuslan, P. 1996 "Making Law Work: Restructuring Land Relations in Africa" Third Alistair Berkeley memorial Lecture (30th May 1996) London School of Economics (London); G.M. Fimbo, "Land Tenure and Land Relations: Restatement or Reform Through Case Law" (University of Warwick, 1996) Mimeno, Tenga, Ringo 1997 "Processing a Land Policy: The Case of Mainland Tanzania", Paper presented to the Partnership Africa Conference (25-27 June, 1997), Stockholm; I.G. Shivji, 1997, supra.; Sundet, Geir. 1997. The politics of Land in Tanzania [D. Phil Dissertations submitted to the University of Oxford]
 
⁴⁴ Clause 57(7)(b) and Clause 58.
 
⁴⁵. Clause 57(7) ( c ) of the DLB.
 
⁴⁶ Shivji, I.G. 1997 "Contradictory Perspectives on Rights and Justice in the Context of Land Tenure Reform in Tanzania" (Mimeo, DSM) - pp. 25-26 shows fundamental shortcomings of an executive driven process reminiscent of the Kenyan debacle.
 
⁴⁷ Clause 58(11).
 
⁴⁸ Clause 58 (7).
 
⁴⁹ Clause 58(8) and (9).
 
⁵⁰ Shivji (1997 ibid.
 
⁵¹ Clause 21.
 
⁵² Chachage (1996) Supra.
 
⁵³ Clause 57 (2).
 
⁵⁴ Clauses 58(10) and 59.
 
⁵⁵ Clause 106(1)( c ) and (7).
 
⁵⁶ Clause 72.
 
⁵⁷ Clause 74.
 
⁵⁸ Clause 106(1) ( c ).
 
⁵⁹ Clause 107(7).
 
⁶⁰ Clause 107.
 
⁶¹ Part XII and XIII of the DLB.
 
⁶² MaAuslan, P. (1986) Clause to Clause Commentary of the DLB p. 53.
 
⁶³ Ibid.
 
⁶⁴ Clause 107(4).
 
⁶⁵ McAuslan; Commentary on DLB, p. 54.
 
⁶⁶ Clause 109, The Administrator is the Administrator-General.
 
⁶⁷ Clause 110.
 
⁶⁸ See Shivji 1997, Supra, p. 26
 
⁶⁹ See Fimbo G. Mgongo. "The Making of a New Land Act in Tanzania: Towards Containment of Corruption?" The Tanzania Lawyer (February - May 1997 Issue) pp. 30-41. This paper seems to argue that the Rules in the DLB are adequate for the Control of the Executive against corruption.
 
⁷⁰ James, R.W. 1971, Land Law and Policy in Tanzania (EALB. Nairobi) p. 235.
 
⁷¹ Lyall A.B. 1973 "The Foundations of Land Law and Policy in colonial Tanganyika" History Research Seminars. UDSM (Mimeo).
 
⁷² Lane, C and Moorehead, R., 1994, supra, at p. 28