THE 1999 LAND ACT
AND VILLAGE LAND ACT
A technical analysis of the practical implications of
the Acts
Land disputes settlement in villages
The 1999 Land Act and Village Land Act
are arguably among the laws that most directly impact on the well-being of most
Tanzanians. They occasioned considerable debate when they were enacted,
particularly on aspects pertaining to gender. After enactment, the Land Acts
have made occasional appearances in the policy debates. Enactment on the Land
Act was one of the trigger points in the HIPC process and there was also
considerable debate surrounding the recent amendment of the Land Act that
sought to make titled land more useable as collateral.
Notwithstanding the centrality of land to
Tanzanian socio-political and economic life and the sporadic appearances of
land law in the policy debates, it is striking how little the Land Act and the
Village Land Act has changed the way that land is administered on the ground.
There is also a comparative paucity of technical or academic analysis of the
Land Acts. Although policy makers often refer to the Acts, it may be surprising
to some how little they actually know of the substance of the Acts. Part of the
reason for the substantial vacuity (excuse the term!) of the discourse around
the Land Acts, especially the Village Land Act, may be that they to a large
extent still aren’t being implemented. The purpose of this essay is to venture
a modest analysis of the Acts. The focus will be on the practical aspects of
the Acts, in order to provide a guesstimate of the Acts’ likely impact on the
administration of land in Tanzania.
The next part of this essay provides the
background to the Acts and a general discussion on their adoption. This is
followed by more detailed discussions of first the Land Act, and then the
Village Land Act. The last two sections of the essay considers alternatives to
the existing legislation and some strategic observations on how the debate and
policy process concerning land may be taken forward.
BACKGROUND TO THE ACTS
The National Land Policy was adopted 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 by
domestic and international experts and a National Workshop. Some controversy
surrounded the adoption of the Policy, as it ignored much of the
recommendations put forward by the Presidential Commission (hereafter referred
to as the Land Commission). The Land Commission had recommended a system that
vested rights in the users of the land and substantially reduced the
Executive’s administrative prerogatives over the use and ownership of land. The
National Land Policy, on the other hand, eschewed any effective attempt at
imposing new checks and balances on executive power.
In 1996, the Ministry of Lands hired a
British consultant to draft the Land Acts, with funding from DFID. He faced an
unenviable task in that he was strictly bound by the letter of the Land Policy,
with all its ambiguities and inherent contradictions. The two Acts reflect the
complexity of this task. They run to a formidable 800 pages, providing detailed legislation
for three categories of land: Village Land, General
Land and Reserve Land.
On the one hand, the Acts introduce a long overdue clarification of many of the
grey areas in the large body of legislation that it replaces. The Land Act
repeals no less than 10 Acts and defines in law many of the procedures which
had previously only been set down through administrative Directives. On the other hand, both Acts replicates many of the fundamental
problems of the system they replace. They continue to give considerable scope
for discretion and administrative directives.
Robin Palmer juxtaposes two diametrically
opposed interpretations of the Land Acts (1999). One is that presented by Liz
Wily, who did work on the Land Acts as a consultant for DFID and the Ministry
of Lands. Issa Shivji, who was the Chairman of the Land Commission, and who has
continued to do analytical work relating to land, puts the other forward. The
contrasting of these two scholars’ positions is instructive, particularly their
respective evaluations of the Acts’ treatment of the key issues of village land
and the safeguarding of customary tenure. Liz Wily comes down heavily in favour
of the new Acts, and classifies them as “basically sound”, arguing that they
are the best of their kind in Africa in terms of “vesting authority and control
over land at local level” (Palmer 1999: 2). Issa Shivji, on the other hand,
finds little to commend the Acts, and sees them to achieve little but to
consolidate the status quo:
the Acts now entrench in law what was
the practice. Which is to say that the administration, management and allocation
of land are placed squarely in the Executive arm of the Central Government
under a centralised bureaucracy (Shivji 1999: 3).
That the Acts can elicit such different
response is striking, but perhaps not so surprising considering the
considerable complexity of the Acts and some of their inherent contradictions
and ambiguities. We now turn to a more detailed examination of the legal
letters of the Acts. First the Land Act.
The Land Act provides the legal framework
for two of the three categories, namely General
Land and Reserved Land.
Reserved Land denotes all land set aside for special purposes, including forest
reserves, game parks, game reserves, land reserved for public utilities and
highways, hazardous land and land designated under the Town and Country
Planning Ordinance. The distinction of Reserved
Land from General Land
does not alter much in relation to the present system of tenure. It does little
more than to draw attention to the fact that Reserved Land
has been set aside for a special purpose under a different legislation. For
example, forestry reserves will continue to be administered according to the
legal provisions of the Forests Ordinance.
General Land is a
residual category. It includes all land that is not Reserved
Land or Village Land.
Or so it appears. The ambiguity stems from the definition of General Land
which is provided in the Land Act: “ ‘general land’ means all public land which
is not reserved land or village land and includes unoccupied or unused
village land” (s. 2, emphasis added). The part of the definition in
italics does not appear in the definition of General Land
in the Village Land Act. There are no provisions in either Act that clarify to
what exactly the former definition refers. There is little doubt that this
definition is yet another expression of the by now familiar concern of freeing
‘surplus’ land from villages for external investors. We will return to this in
the discussion of the Village Land Act.
As surprising as it may seem, there is
little in the Act that sets it apart from previous legislation. The Act retains
the basic features of the old system, such as Rights of Occupancy and the
imposition of Development Conditions and land rent. It retains most, if not
all, characteristics of the system it replaces by providing for detailed
bureaucratic control of all aspects of land use and ownership. In its more
detailed provisions, the Land Act does little more than partially to
consolidate earlier legislation, clarifying some grey areas and setting down in
law areas that have previously only been subject to administrative regulations.
Arguably, the most striking feature of
the Act is the manner in which it settles any previous conflict between the
Ministry of Lands and Local Authorities firmly and unambiguously in favour of
the Ministry. The Act clearly states that only the Ministry, through the
Commissioner of Lands, has the authority to issue Grants of Occupancy (s. 14).
In an obvious reference to the legal wrangle, which ensued after the
reintroduction of local authorities in the eighties, the Act firmly declares:
A local government authority, shall not,
unless specifically authorised by this Act, make an offer of or grant any right
of occupancy to any person or organisation and any such purported offer or
grant shall be void (s. 14).
The Act further states that any local
authority officer “shall comply with any directives of the Commissioner issued
to him specifically or generally, and shall have regard to any circulars issued
by the Commissioner” (s. 11(7)).
The Act provides for the establishment of
Land Allocation Committees at the levels of local authorities “to advise the
Commissioner on the exercise of his power to determine applications for rights
of occupancy” (s. 12). It is explicitly stated in the Act that the Commissioner
is not bound to act on the recommendations of the Land Allocation Committees
(s. 26).
One issue, which has received some
attention, is the much-vaunted allowance for a land market. Section 31 of the
Land Act states that the “Minister may require the payment of a premium on the
grant of a right of occupancy.” The premium shall be decided by the Minister,
who is directed to have regard to factors such as prevailing market prices and
the assessment of a qualified valuer. In section 52, we find that the Minister may
direct that the land be sold at an auction or through a process of tendering,
with the relevant procedures to be according to regulations made by the
Minister. As we can see, the scope for discretion is considerable, and it is
doubtful whether these provisions provide any strong guarantees against land
being granted to companies or individuals at below market rate. The absence of
any such guarantee, of course, continues to leave room for illicit rent seeking
in the allocation of land.
For a holder of a Granted Right of
Occupancy wishing to sell, there is still less evidence of anything
approximating an open land market. Enigmatically, the Act provides that:
“Unless otherwise provided for by this
Act or regulations under this Act, a disposition of a right of occupancy shall
not require the consent of the Commissioner or an authorized officer” (Section
36 (2)).
The following sub-section provides the
significant proviso that the seller is required to notify the Commissioner, and
that the Commissioner needs to “endorse” the notification before the Registrar
of land can register the transfer. The Act further explicitly states that
grants that have been held for less than three years require prior approval
from the Commissioner (s. 37). In section 38 we find that the Commissioner may,
at his or her discretion, ask for any additional information relevant to the
sale and direct that the sale shall not take place before approval is granted.
In other words, no formal approval is required unless the Commissioner says
otherwise. Grounds for refusing approval range from non-fulfilment of
development conditions, any previous criminal record of the seller, suspicion
that the land is being sold at below market value or that there is any form of
corrupt influences involved. Approval may also be refused if there is a breach
of the rights of any disadvantaged groups, such as women, children or
low-income persons.
Even after a sale has been formally
registered, the Commissioner may, within two years of the transfer, move to
annul it. In this period, the Commissioner may annul the sale if he or she “has
reasonable cause to believe” that the sale has been “affected by fraud, or
undue influence, or lack of good faith, or the fact that one party appears to
have taken unfair advantage over another party...” (s. 38 (3)). It is
indicative of the overall spirit of the Act that this kind of safeguard is put
in the hands of the head administrator, rather than the courts. The provision
of retroactive administrative scrutiny only serves to add an unnecessary layer
of bureaucracy and uncertainty to what is already a dense wall of bureaucratic
procedures and discretionary decision-making. Considering all the above, it is
clear that the new Act provides no strong guarantee for would-be sellers and
buyers of land that they will not be subjected to undue interference from the
Authorities.
The other provision of the Land Act that
is seen to be a significant departure from the previous system is the
restriction against non-nationals from acquiring land. The one significant
exception to this rule is for land acquisitions connected to investments that
have Investment Approval. The bar against holding land also applies to companies where
non-citizens have a majority share holding. Civil activists in Tanzania have lauded
the restriction against foreigners holding land, although some might have liked
to see still stronger protection against foreigners amassing land at the
expense of nationals and smallholders.
Still, it may be argued that the
perceived threat of foreign mass-acquisition is easily over-stated. The main
threat against the landholdings of smallholders (and urban ‘squatters’ for that
matter) is not an unrestricted land market, with or without foreign
participation, but a regulated market that may be manipulated by politicians
and bureaucrats. There is a wealth of empirical evidence from comparable
countries to support this assertion.
Both the Land
Act and the Village Land Act have been hailed as a triumph for the women’s
rights movement in Tanzania.
Gender activists have been among the most active lobbyists in the national
debates surrounding the land acts. They successfully lobbied for the inclusion
in the Acts of provisions to ensure equality before the law for women in both
statutory and customary tenure. Land Act states as one of its fundamental
principles 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 (s. 3 (2)).
The same principle is explicitly laid down
in the village land Act to cover customary rights of land (see below).
The Land Act introduces little new in the
area of conflict resolution. Section 167 is the only one in the Land Act
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. There may be a virtue in creating special
divisions in the court for dealing with land matters, but it is doubtful
whether this in its own will have a substantial impact on the court system’s
processing of land cases. The Ward Tribunals are already virtually defunct as
argued in Chapter 5, and as we will see in the following section, the Village
Land Councils are not strictly judicial entities, and are not likely to have an
appreciable impact on the incidence of land litigation.
To summarise, the Land Act represents no
significant reform of the present system. One’s judgement of the new law,
therefore, would differ according to one’s assessment of the legal and
institutional set-up prior to the Act. If one accepts the diagnosis put forth
in much of the contemporary analysis of land in Tanzania (e.g. Bruce 1994 and
1994a, Hoben et. al. 1992, URT 1994, Sundet 1997, and Shivji 1998), that
the land administration is at various stages of breakdown, one’s inescapable
conclusion would be that the enactment of the Act provides no significant
improvement on the legislation it replaces. What is needed, and what the Act
fails to accomplish, is to address the fundamental problems of the system.
These are over-centralisation of the land administration and the amassing of
powers to control in detail the ownership and utilisation of land. Powers which
are either beyond the capacity of the land administration to enforce in a
professional and rational manner or which merely lend themselves to abuse.
If one believes that the present system
is essentially sound, on the other hand, on may take a more positive view of
the Act. The people of this persuasion tend to view the main problem as one of
ensuring compliance with the laid-down regulations. This is the opinion voiced
by the Tanzanian administrators, who are the main authors of the National Land
Policy we encountered in earlier discussion of the making of the policy. If one
accepts this assessment, the daunting challenge remains one of bringing about
massive capacity building in the land administration. Not least, successful
implementation of the Policy and the Acts will depend on the establishment of
enforceable procedures to institute a satisfactory degree of transparency and
accountability in this high margin business.
Unlike the Land Act, the Village Land Act
has in it provisions which bear witness of some attempt to learn from past
problems and experiences. Indeed, an optimistic reading of the Act suggests
that the major parts of the administration of land has been decentralised to
the village and that there are solid guarantees in place to protect the
smallholder security of tenure. Essentially, the Village Land Act vests all
village land in the village. The precise distribution of authority between the
Village Council and the Village Assembly is not always defined, but the
underlying principle is clearly that village land is vested in the Village Assembly,
and that the Village Council administers the land through the authority of the
Village Assembly.
A more critical reading of the Act
exposes several problem areas and ambiguities. The legal provisions of key
aspects of the administration of village land are set out in some detail below.
We will see that elaborate processes of adjudication, registration and
safeguarding of land rights have been put in place. The provisions are long on
protocol and seek to incorporate security of tenure. At the same time, they
impose administrative controls to ensure that developmental policy concerns are
considered. In other words, ownership of land is not only determined by
pre-existing rights but also by the perceived capacity of the landowner to
develop the land in question. In order to safeguard against improper
manipulation of the bureaucracy required to impose developmental control of
land allocation, a complex layer of legal stipulations has been put in place to
block potential loopholes from abuse.
The reasoning behind this approach
appears to b that “more law is better law.” This is clearly illustrated by the
citation below, which is from a presentation by the drafter of the Act, in
response to criticism that the Act was undermined by a faulty policy:
The real revolutionaries therefore might
turn out to be not those who propose radical policies but those who, through
the NLP [National Land Policy], propose a radical legal methodology for
implementing policies; namely a detailed and inevitably lengthy new land code
in which legal rules and checks and balances replace reliance on administrative
and political action based on goodwill and common-sense. (McAuslan 1996, cited
in Shivji 1998, 107)
The problem with this kind of approach,
which comes right out of the British legal tradition, is that it presupposes
that villages possess the capacity to ensure that their land is administered
according to the letter of the law. Complex legal provisions are not
necessarily the best way to protect the security of tenure of smallholders in a
fragile and poorly developed political and administrative framework. Legal and
administrative complexity lends itself to exploitation and manipulation of
those in the local environment who are better endowed, informed and connected.
This is the case even if those legal provisions have been put in place to guard
against their manipulation. This observation is substantiated below through a
discussion of five key policy areas raised in the Village Land Act: transfers
to general lands, the registration of customary grants of occupation,
adjudication, gender and conflict resolution.
While attempting to make sense of what
follows, the reader is urged to keep in mind the context in which these
regulations apply. Namely, villages where administration and officialdom often
are exclusive arenas reserved for those with connections with the political and
economic elite of the district, and where there is no strong tradition of
transparent and inclusive governance and rule of law.
True to the letter of the National Land
Policy, the Village Land Act states that a “customary right of occupancy is in
every respect of equal status and effect to a granted right of occupancy” (s.18
(1)). The meaning of this statement is somewhat unclear, as the holder of
customary rights answers to a different set of rules with different
encumbrances and privileges than does a holder of a granted right of occupancy.
One can only assume that it is included in the Act to assert the Government’s
intention not to discriminate between customary rights of occupancy and granted
rights. Either way, the statement in its own right is inconsequential – the
status of customary rights will only be determined by the way in which the law
will be administered.
The definition and registration of
village land is provided in section 7. The authority to demarcate and register
villages lies with the Commissioner. In cases where the village is in dispute
with bordering villages or other landholders, the Minister shall appoint a
“mediator” to work with the conflicting parties to find a “compromise” (s.
7(2)(a)). Where the mediator is unable to find a compromise, the Minister shall
appoint an “inquiry” under section 18 of the Land Act (s. 7(2)(b)). According
to the Land Act, a judge of the High Court, selected on the advice of the Chief
Justice, shall hold the inquiry. The inquiry shall be held as a judicial
inquiry, shall be open to the public and, perhaps most importantly, the report of the inquiry shall be
published. The Minister is required to accept the recommendations of the
inquiry, “unless there are overriding reasons of public interest to the
contrary” (s. 7 (5)).
There is no definition of what such an
“overriding reason of public interest” may or may not be. It may be relevant,
however, that the definition of Public Interest provided in the 1967 Lands
Acquisition Act includes developmental and economic considerations or any other
concerns that the President considers to be in the public interest.
The procedure for registering village
land set out above does not differ significantly from the previous practice,
with the exception of the provision for inquiries. When the village has been
demarcated, the Commissioner issues to the village a certificate of village
land. The certificate confers upon the Village Council the authority to
manage the land. There is no provision that requires that the village formally
verify the boundaries stipulated in the certificate.
The relative weakness of the village in
determining its boundaries becomes still more obvious in the preceding sections
on transfer of village land to general land:
4 (1) Where the President is minded to transfer any area of village
land to general or reserved land for public interest, he may direct the
Minister to proceed in accordance with the provisions of this section.
(2) For the purposes of subsection (1), public interest shall
include investments of national interest.
The Minister shall consequently publish
in the Gazette the location and extent of land and a brief statement on the
reasons for the transfer. A copy of the Gazette shall be sent to the Village
Council. The Village Council is given a minimum of ninety days before the
transfer takes place.
The way in which the village may deal
with such proposed transfer makes interesting reading. Firstly, the Village
Council shall inform any villager who have already been granted a certificate
of customary rights or a derivative right (see below) of the transfer. In other
words, only landholders holding a certificate issued by the Village Council
need to be notified. There is no requirement for the Village Council to inform
villagers that hold land under customary rights, but have not yet been issued
certificates. Any holder of registered rights to the land in question may
subsequently make “representations to the Commissioner and the village
council”. The Village Council and the Commissioner are then required to take
these representations “into account in any decisions or recommendations they
may make on the proposed transfer.” (s. 4 (5))
Where the land to be transferred is less
than 250 hectares, the Village Council shall submit its recommendation on the
transfer to the Village Assembly, for its approval or refusal. Where the land
in question is greater than 250 hectares, on the other hand, the Minister shall
consider any recommendation made by the Village Assembly through the Village
Council, and signify his or her approval or refusal (s. 4 (6)). It is striking
that the Village Assembly appears to have been given less say in the decision
on very large transfers, than in transfers below 250 hectares.
On a more positive note, the Act provides
one important improvement on the previous system, as it states that no village
land shall be transferred “until the type, amount, method and timing of the
payment of compensation has been agreed upon between … the village council and
the Commissioner…” (s. 4. (8)). If an agreement cannot be reached, the matter
is referred to the High Court for determination.
It is recognised that one of the main
weaknesses of customary rights vis-Ã -vis granted rights is that the
former are not formally documented. Both the Presidential Land Commission and
the National Land Policy recognised that formal registration of the customary
rights is much needed. The problem, of course, lies in the way in which
registration is brought about, what will be the privileges and limitations of
the registered rights and how the rights will be administered.
The procedure the Village Act lays down
for registration and issuing of ‘Certificates of Customary Right of Occupancy’
bears a striking similarity with the procedure for issuing Granted Rights of
Occupancy. Both villagers and non-villagers may apply. The applicant first
submits a prescribed application form to the village council. In the case of
non-village applicants, the Council is required to seek advice from the
Commissioner. The Council deliberates the application and takes into account, inter
alia, the availability of the land and the applicant’s ability to
make productive use of the land (s. 23). If the Village Council finds in favour
of the applicant, the Council issues a Letter of Offer, stating development
conditions, yearly rent and any fees, which the Village Council may stipulate.
The applicant shall pay the required fees and agree to the development
conditions on a prescribed form, after which the Village Council shall issue
the Certificate (s. 24). In no cases of a first time grant of a Certificate of
Customary Right of Occupancy is the Village Council required to seek approval
from the Village Assembly.
The Certificates are evidently meant as
an upgrading of customary tenure. The security of tenure is more robust when a
Certificate documents it and it avails the holder with access to credit. Overall,
it bears a passing resemblance with the system proposed by the Land Commission,
in which all villagers would be issued with similar certificates (Hati za
Ardhi ya Mila). A number of significant issues set the system provided by
the Village Land Act apart from the one described by the Land Commission.
Firstly, it concentrates considerable powers in the Village Council (akin to
those of the Commissioner at the national level) to impose detailed control of
the use of land and to define the terms and criteria for ownership of land. Secondly, issuing certificates on demand will invariably favour
well-off and well-connected villagers. If the village elite gets the first
opportunity to register their land, there is a real risk that an internal
process of landgrabbing will be set off. This is particularly the case, seeing
that there is no requirement for approval or even consultation of the Village
Assembly. It is obvious that there is little, if any, chance that all
landowners in the any of Tanzania’s
villages will receive Certificates in the near future. One may wonder how the
introduction of a second, no doubt superior, level of customary tenure in the
village will affect the relative security of tenure within the villages and the
internal distribution of land.
There are a number of further provisions
relating to the Certificates of Customary Rights of Occupancy that provide
detailed rules for the sale of ‘derivative rights’, grant of ‘derivative
rights’, breach of conditions and revocation. Only a few of these points will
be summarised here.
The case of derivative rights justifies some
elaboration. The Act defines a derivative right as “a right to occupy and use
land created out of a right of occupancy”, including any form of lease or
sub-lease (s. 1). It appears from the Act that as soon as you “do” anything to
the land, i.e. sell it or lease it, it becomes a derivative right. Meaning that
customary rights of occupancy can’t be sold or leased, except as rights derived
from the “original” customary right. Nevertheless, the granting (by the Village
council) or selling (by the holder of a customary right of occupancy or a
derivative right) of derivative rights, which constitute more than a ten-year
lease or a small mortgage, invokes a lengthy administrative procedure (see ss.
31-33). An application has to be submitted on a prescribed form to the Village
Council. The Council shall consider, inter alia, the grantee or buyer’s
ability to use the land for the benefit of the village, the rights of women,
and the availability of land for the village’s future needs. The procedure is
very similar to the process of granting customary rights of occupancy,
including the setting of fees, rent and development conditions. There is,
however, an added dimension to the case of derivative rights.
Derivative rights are divided into three
categories according to hectarage. Rights for land less that 5 hectares
classify as Class A. Land between 5 and 30 hectares are Class B, and land of
more than 30 hectares is graded as Class C. For Class A, only the approval of
the Village Council is required. Class B requires the additional approval of
the Village Assembly. Grants or sales of Class C require the approval of the
Village Assembly and the “advice” of the Commissioner (s. 32).
The following sections (ss. 34-47)
provide a detailed list of provisions relating to the duties of the holder of
rights, revocation, foreclosure, passing on rights to next of kin, breach of
conditions, fines and remedies for breach of conditions, appeals, etc. Each
type of action or process is laid down in detail, down to the stipulated mode of
consultation, maximum time allowed for processing and what form to fill in. One
may justifiably wonder how any village can be expected to comply with this law,
and how the law might be expected to assist Tanzania’s villages to administer
their land in a manner that is consistent with the principles of sound land
management and justice.
In section 48 we find that, except where
“boundaries in land are fully accepted and agreed to”, no grant of customary
occupancy shall be made until the land has been adjudicated according to the
provisions laid out in Sub-Part C, Part IV of the Village Land Act (ss. 48-59). There are two main alternatives. Either the person applying to
register a customary right of occupancy may apply to the Village Council for
“spot-adjudication” on a prescribed form (s. 49). If the Village Council is
satisfied that it will not be necessary to first adjudicate the larger area
contiguous to the land in question, it may approve the application. In which
case it may proceed to the process of adjudication (see below). If the Village
Council rules that a more comprehensive process of adjudication is required, it
needs to submit its decision to the Village Assembly for approval. The Village
Council is also required to inform the District Council of its decision. If the
Village Assembly rejects the Village Council’s recommendation, the Village
Council shall inform the District Council. At this stage, the District Council
may order the Village Council to proceed with spot-adjudication.
When the Village Assembly has approved
adjudication, a process of “village adjudication” may begin. First, the Village
Council appoints a villager with good knowledge of the issues at hand, or an
official from outside the village to be the village adjudication advisor. The
appointment requires approval from the Village Assembly. The Village Assembly
shall also elect a “village adjudication committee.” The committee shall proceed with the adjudication process, with the
village adjudication adviser as its chair. The committee will hear all claims
to the land in question and seek to settle any disputes that arise. After the
committee has reached its final decision, this shall be recorded and posted in
a prominent place in the village. If there are no appeals after thirty days,
the decisions shall be deemed accepted and be recorded in the village land
register. Appeals go to the Village Land Council in the first instance and
further appeals go to Court (presumably at District level).
If the District Council receives
complaints at any stage in the adjudication process, from “not less than 20
persons” whose interests in land are affected, the District Council may take
over the process of adjudication and conduct a process of “district
adjudication” (s.50 (4)). In that case, it appoints a public officer to
supervise the village adjudication advisor (or dispense with the advisor all
together), and has the option of replacing elected members from the village
adjudication committee with candidates of its choice. The District Council will
subsequently supervise and direct the adjudication process. The final decision
shall be posted in the same manner as for the “village adjudication”, with the
difference being that in this case appeals go to the Commissioner or the High
Court.
The basic structure of the village
adjudication process is sound. It is participatory and transparent, and the
outcome is relatively likely to be considered legitimate. The process of
district adjudication (in the village), on the other hand, is a problematic
one. It would seem that the District Council’s role in this situation is seen
as that of an impartial umpire, who is brought in if the village adjudication
committee is not performing competently. To expect the district authorities to
act in such a disinterested capacity in determining the ownership of a
commodity as valuable as land is naïve. It is difficult to see the
justification for putting the District Council’s decision above any challenge at
the local level. It would be much easier for local communities to tolerate what
they might justifiably see as undue interference, if the Council’s decision
needed the approval through a majority vote in the Village Assembly. After all,
if such a vote were not forthcoming, what basis would there be for the District
Council’s ruling on a matter of customary law?
The Village
Land Act does break new ground in women’s rights to land. With the stroke of
the pen the Act renders as invalid any customary practices that discriminates
against women:
[Any] rule of customary law or any such
decision in respect of land held under customary tenure shall be void and
inoperative and shall not be given effect to by any village council or village
assembly or any person or body of persons exercising any authority over village
land or in respect of any court or other body, to the extent to which it denies
women, children or persons with disability lawful access to ownership,
occupation or use of any such land (s. 20 (2)).
This is taking
a more radical approach than the Land Commission on the issue of gender
equality. In the national debate preceding the finalisation of the National
Land Policy, a group based at the University
of Dar es Salaam,
criticised the Land Commission’s conservative approach (see Sundet 1997). The
group, which was chaired by Prof. Anna Tibaijuka, had challenged the
Commission’s advocacy for an ‘evolutionary approach’, arguing that ‘hard law’
was the only way to deal effectively with gender discrimination in land
ownership (LTG 1995, 44).
It is not
likely that this important provision will lead to an overnight revolution in
the rights of women to land in rural Tanzania. The capacities
effectively to oversee and enforce the law are not there and, as argued below,
the established system of mediation, conflict resolution and enforcement are
ill suited to tackle what are bound to be highly controversial issues. This
notwithstanding, the fact that gender equality has been laid down firmly in
law, also in reference to customary rights, represents an important advance.
There is little doubt that it might have a real effect on the situation on the
ground in the longer term.
The Act makes special provisions for the
establishment of a Village Land Council “to mediate between and assist parties
to arrive at a mutually acceptable resolution on any matters concerning village
land” (s. 60). For some reason, its jurisdiction has been limited to cases
related to land sharing arrangements with other villages (s. 11), or land
sharing arrangements between pastoralists and agriculturalists (s. 58). The
Village Land Council shall consist of seven people, to be nominated by the
Village Council and approved by the Village Assembly. Three of the members
shall be women.
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. In other
words, the parties to the dispute are not compelled to follow the
recommendation of the Village Land Council. It is also noteworthy that the Act
explicitly states that: “No person, or non-village organization shall be
compelled or required to use the services of the Village Land Council for
mediation in any dispute concerning village land.” (s. 61 (6)).
The latter provisions make it quite clear
that the Village Land Council is only to provide the service of arbitration
between consenting parties. Strictly speaking, it is not even a quasi-judicial
body. It seems surprising that while going to the pains of creating a
potentially useful body as the Village Land Council, the Government should
choose to delimit its powers to the extent of stripping it of any legal
judicial standing. The Land Commission’s principal purpose behind establishing
the Elders’ Land Council, for example, was to bring the judicial system within
the reach of the common villager, and to set it in a context that would be more
understandable and legitimate. The Village Land Council will not serve this
bridging function, as long as any party to a dispute can lawfully choose to
ignore it.
As can be seen from the above, the legal
and regulatory framework for village land lays down extraordinarily complex
procedures of land administration. The sheer weight of the technical paper work
prescribed is perhaps best illustrated by the enabling legislation. The 1999
Village Act became effective with the enactment of the Village Land Regulations
passed in May 2001. The Regulations provide for no less than 50 different forms to be
used by the villagers in the administration of their land.
Recently, I was discussing with a group
of extension workers and local government officials on ways to assist village
governments run their affairs in an open and competent manner. Part of our
discussion centred on what tools and resources that could best be provided.
First and foremost, I was told, they need writing material, pens and daftaris
(exercise books), and a place to keep their records. Villages often don’t
have a village office, and there is little tradition of keeping and using
records and forms. The typical procedure adopted for the annual collection of
the development levy is a good illustration of village government at work:
The District Council or the Ward Executive
Officer provides Village Executive Officers and Kitongoji Chairmen with receipt
books and a simple summary form. The village executives then collect the
development levy, providing each taxpayer with a simple receipt. The tax
collection is then recorded on the forms they have been provided with, a
portion may be kept as an allowance for the Village Executive Officer, and the
rest is sent to the District Council, through the Ward Development Council. The
used receipt books and summation forms are sent back together with the cash tax
collection, as a proof of the amount collected. It is exceptional that any
record is kept at village level, and villagers are hardly ever informed of the
amounts collected.
Put in this context, it quickly becomes
obvious that it is hardly realistic to expect the Village Council to maintain a
land tenure system that requires 50 different forms for its correct
application. The task of training village officials in the correct use of the
forms and to understand the system in which they operate will be formidable.
Even if this were to be accomplished, the challenge would remain one of
ensuring that the common villagers understand the basic features of the new
system. Unless people understand it, they will not accept it as legitimate and
they will not be able to guard against improper manipulation of the system by
the village and district leaders.
The Village Land Act is a step in the
right direction in terms of devolving authority to the local level. As set out
above, there are important aspects of the prescribed adjudication process that
has the potential for providing transparent and credible decisions. The problem
is that the act as it stands is largely unworkable. The level of investment
required in basic training of officials at district level and in Tanzania’s
11,000 villages is almost certainly beyond the means of the Government. In
addition to the basic training, there would also be a need for massive public
education programmes to ensure that common villagers are in a position to hold
village leaders accountable in the administration of the new system. It is
highly unlikely that whatever improvements in land management that such a
massive operation would deliver would be commensurate with the investment
required.
The key problem areas of the act may be
summarised as follows:
§
The inappropriateness of the
administrative system described above is obvious. There is little justification
for replicating the system used for national lands at village level. Much more imaginative use could be made of public hearings and
public posting of information. A requirement of the sanction of the village
assembly for the first time registration of land would resolve most concerns of
ensuring transparency, justice and legitimacy;
§
The consideration of
“developmental concerns” in the allocation of land adds an unnecessary
dimension to the procedures of adjudication, registration and allocation. The overriding deciding factor in the process should be the local
consensus of existing ownership under customary law;
§
The introduction of
Certificates of Customary Rights of Occupancy as an intermediary level of
tenure does not seem appropriate. Registration of
customary rights should be seen as tool for formalising and documenting
existing patterns of ownership. It should not be approached as an opportunity
to create an entirely new regime of tenure rights. The process of registration
should be seen as a step in a “fluid” formalisation of the customary system of
tenure, with precautions put in place to ensure that the process does not
undermine existing rights. This would entail adjudication and registration, at
whatever pace is possible, of all existing rights to land in the village;
§
The role that the District
is ascribed in the Act as an external and impartial adjudicator is not
appropriate. The vesting of land in villages would
necessarily mean that the Village Assembly is the highest executive authority
on matters relating to land. Appeals to decisions made by the Village Assembly,
therefore, should go the courts, not to the District Council;
§
The system of conflict
resolution and mediation with the Village
Land Council is not
likely to reduce the incident of land conflict or reduce the growing backlog of
land related cases in the courts. What is needed is
a village institution with judicial status. This institution would need the
necessary authority to back its decisions in a way that would make its
decisions credible. It should be based on open and accepted practices in order
for its decisions to be seen as legitimate;
§
The relative ease with which
the executive can appropriate village land is the aspect of the Village Land Act that has been criticised most. This is grounded in several areas of the legislation. Firstly, the
statement in the Land Act that “unoccupied or unused village land” is defined
as General Land is problematic. This means that
what is seen as ‘excess’ village land falls under the jurisdiction of the Land
Commissioner rather than the village authorities. Secondly, not requiring the
Village Assembly to verify the village boundaries misses a valuable opportunity
to ensure public legitimacy of the process of first time adjudication. Thirdly,
the procedures outlined for transfer of Village Land to General Land provide no
strong guarantee that most villagers are informed and does not give the village
the final say in whether the land may be transferred or not.
The above factors and other aspects that
have been touched upon suggest that the Village Land Act will not be possible
to implement. If a serious attempt were made to implement it, the likely
outcome would be an increase in the incidence of land litigation. There would
also be a considerable risk in further proliferation of the violent conflicts
over land. The impact on smallholder security of tenure will probably be
negative. It follows that it does not seem likely that the Village Land Act
will be conducive to economic growth and/or improved food security.
Land and land rights have a very real
impact on virtually all aspects of social and economic development. Nowhere is
this more relevant than at the various levels of local government. In a
consultancy report to the Government in the preparation of the National Land
Policy, the renown expert on land, John Bruce, asserted that:
control of land and viable local
government seem to be inextricably tied together in rural Africa.
A local government which does not control land is almost irrelevant, given that
the concerns of rural people are so focused on land. (1994: 4-5)
Virtually all expert commentary that went into the drafting of the
National Land Policy made similar observations and recommendations in relation
to the land policy (see Sundet 1997). At the time, such recommendations were
successfully pushed to the side by the civil servants who were tasked with
drafting the policy.
The Land Acts are a logical outcome of a deeply flawed policy. As we
have seen in the discussion above, the Acts consolidate the powers of the
Commissioner of Lands to regulate every aspect of land use and ownership. The
powers that have been delegated to the local Land Allocation Committees are
effectively only advisory. Also, when it comes to the Village Land Act, local
authorities and/or the Central Government through the Ministry easily supersede
the powers that are vested with the villages. The basic problem with the Land
Act and the Village Land Act is that they rely on administrative procedures
rather than market forces, and that they make highly unrealistic assumptions of
administrative capacities. The net result of this is likely to be the
continuation of inefficient and non-transparent administration of land. This
will not be conducive to economic growth, justice or equality.
The inevitable conclusion emanating from this is that both Acts are
ill conceived. Their guiding principles, which are found in. the National Land
Policy, are centralising, anti-market and make assumptions on the impartiality
of civil servants that accord poorly with realities and good economic practice.
This is not a cheerful conclusion, considering that this system is the product
of more than a decade of intensive consultations, expert deliberation and
continuous drafting and fine-tuning of policy and legislation. The question of
how such a seemingly meticulous process of policy making could produce such a
result is the question that the main body of this work has sought to answer. I
will not belabour the answer to that question any further in this postscript.
Instead, I will conclude with a few suggestions of what kind of system of land
tenure could work in Tanzania.
The basic principles of the Tanzanian land policy need to be
reviewed. Tinkering with minor legal amendments and regulatory adjustments is
not going to address the fundamental problems affecting the Tanzanian system of
land tenure and its administration. The problem lies in the sheer complexity of
the present system. Only a complete overhaul could succeed in doing away with
the present ambiguities and multi-layered provisions for discretionary
controls.
Firstly, there is a need to acknowledge that there is no capacity in
the land administration to regulate the use of land in detail. The present use
of “development conditions” only provides for unnecessary discretionary powers. There is no capacity to enforce the development conditions in a
professional manner. There is ample evidence of this in the analysis and the
cases presented in the earlier chapters. Development conditions were originally introduced as a means of
discouraging speculation in land. This is also the modern justification for
their application, or as it is often put: ‘ensuring that the land is developed
in the interest of the country’. The imposition of development conditions is
not the best way of achieving this purpose.
The main cause of land speculation is allocation of land at below
market value. The most economical and most
effective way of staving off speculation in land would be to ensure that there
is an effectively operating land market. This would mean that sales of land
should be de-regularised, and that first-time allocation of land should always
be by public auction.
The common argument against this approach is that it would lead to
greater inequality in land holdings and produce a large class of landless,
rural poor. Imposing discretionary controls on land markets is not the best
way of protecting the rights of the poor. Measures to favour the poor need to
be context specific, transparent and predictable. There are at least two
scenarios that need to be addressed. The first, which is the most common and
easily addressed, is the protection of existing rights to land. The second
relates to the need to redress existing imbalances in landholding.
Most of the poor in Tanzania
live in the villages, and most of them already own land under customary tenure.
We have seen in the previous chapters how rural small holders loose land to
Government and/or donor initiated development projects, to expansion of urban
borders, declaration of national parks or reserved areas, and increasingly
through ‘landgrabbing’ by local and international ‘investors’ who are allocated
land by local or central administrators. The introduction by the Village Land Act
of a new tier of Registered Customary Rights of Occupancy through a demand
driven process is likely to add another threat to the land rights of the rural
poor. The process of first-time registration in villages should not be
demand-driven. This is only likely to favour the best connected and best
resourced, at no demonstrable gain in terms of development. Protecting the
rights of the rural poor must be a priority in the process of registering
customary rights in the village.
Rather than a demand driven process of adjudication and titling,
therefore, the approach adopted should be inclusive and comprehensive on a
village-by-village basis. Titling on a first come
first serve basis will inevitably exacerbate existing inequalities in land
holdings and add another threat of the land holdings of the poorer segments of
the population. The Village Land Act’s process of “village adjudication”,
outlined above, would seem to provide a good methodology for open and fair
adjudication based on common perceptions of existing patterns of ownership.
Although, as is argued above, the role accorded the District Commission as an
impartial arbitrator is not appropriate. The decision of the Village Assembly
should be binding, and the only recourse to appeal should be to the courts.
It needs to be recognised that the primary purpose of this exercise
would be to register existing customary rights to land and to prepare for the
ultimate transfer of the rights to statutory and fully marketable rights to
land. It should not be seen as a method for
addressing any need for land reform in order to achieve a more equitable
pattern of landholding. Nor should it be used as a means of releasing “surplus
land” (vide the repeated calls for this from the land administrators, as
documented throughout this work). Either of these objectives would necessitate
the application of a more discretionary process of registration and would be
more open to abuse.
This is not to say that there is no need or room for land reform. On
the contrary, land reform and the achievement of a more equitable pattern of
land holding should be important objectives of the introduction of a new land
regime. As we have seen, the two Land Acts make no provisions for land reform,
and would almost certainly lead to a still more inequitable pattern of land
ownership.
Land reform needs to be specifically targeted as such and should
take as the point of departure under-utilised areas under public or private
ownership that lay adjacent to populated areas.
Likely targets would include:
§
Previously allocated plots
to private owners who have failed to make effective use of the land – an example being the farms in Babati district, where smallholders
were first forcefully settled during villagisation only to be evicted from
again in the eighties when the banks foreclosed on the land and sold it to
wealthy individuals, many of whom simply proceeded to charge rent from the
farmers that were already settled on the land (see Sundet 1997).
§
Large tracts of land owned
by the Government, either through (now mostly defunct) parastatals or by public
bodies, such as the army or prisons, where these are not making effective use
of the land. There are several such areas
identified by the Land Commission (Volume Two, URT 1993). Such areas are now
usually put up for sale for so-called investors. They are typically allocated
through a highly discretionary process, and less emphasis seems to be put on
the price gained (public auctions are very rare) than on the “investor’s”
assessed ability to “develop the land”.
Both the above scenarios present tailor-made opportunities for land
reform that are not being used at the moment. The main argument against such
reforms from the authorities would be developmental. They would argue that it
is not in the national interest to allocate these tracts of land to
smallholders, as they do not possess the capacity to develop the land. This
assertion is poorly substantiated by existing empirical evidence on the
relative economic efficiency of smallholders versus large-scale commercial
farming in the African context and elsewhere (Binswanger et al. 1993;
Bruce and Migot-Adholla (eds.) 1994).). It also accords poorly with the Land
Policy’s stated objective of ensuring an equitable pattern of landholding.
It is still far from clear what
impact the Land Acts will have on life in Tanzania. Neither Act is being
properly implemented. What is perhaps more surprising is how little debate the
Acts have occasioned since they have been turned into law, and how little
concern there appears to be that little seems to be changing in the lands
sector.
Only on one issue, has there been some level of public debate. This
is concerning push from the private sector, notably banks, and the donor
community, notably the World Bank, to amend the Land Act to make it easier for
banks to foreclose on bad mortgages where land is put up as collateral. A
number of civil society activists have lobbied vigorously against the
amendment, arguing that it would unfairly exposed disadvantaged farmers to
being tricked into loosing their land by the banks. The Ministry of Lands have
also urged caution for the same stated reasons.
The banks and the pro-amendment lobby are arguing that the Land Act
puts in place too onerous safeguards against unfair appropriation by the banks.
The effect of this, it is argued, is to raise the risk, and therefore the price
of giving loans against land as collateral. This, it is argued, puts needless
breaks on economic growth. The anti-amendment lobby, civil society activists
and Ministry, cautions against uncritical and hasty reform that could put the
disadvantaged at risk. They argue that there is a need for special safeguard to
ensure that banks ensure that clients who put up their land as collateral fully
understand the consequences of foreclosure. They are particularly concerned
about what is termed ‘small mortgages’, which refer to mortgages of less than
500,000 Shillings (approx. $500). The anti-amendment lobby agrees that there is
a need to amend the reform in order to facilitate access to credit, but they
disagree with the pace of reform.
The fact that there is public debate around the Land Acts and that
the Government recognises that there will be need to adjust the Acts through
further amendments is positive. Having said that, it is striking how little in
the Acts has been subject of debate since they legally came into force. It
could be argued that the extensive reforms that Tanzania are in the process of
implementing – notably Local Government Reform, Public Sector Reform, Financial
Management Reform and Legal Sector Reform – as well as the National Strategy
for Growth and Reduction of Poverty (NSGRP), have focused all public attention
on those respective sectors. In the NSGRP process, for example, land is not
singled out as one of the priority areas, and it is striking how little
acknowledgment there is of the importance of land ownership arrangement and
security of tenure in economic development.
As it stands, the Land Act is not likely to have any appreciable impact.
It primarily serves to iron out a few earlier inconsistencies, by effecting a
further concentration of powers in the Commissioner of Lands. Procedures of
allocation and administration of land rights continue to be highly
discretionary and aimed at effecting detailed regulation of land use by the
owner of the land. The emphasis remains one of ensuring economic development
rather than on guaranteeing ownership. This approach has failed singularly in
the past, and there is no reason why it would work in the future.
It is a truism that the principal problem in the land administration
today is corruption in the allocation of titles and a complete lack of capacity
to oversee and enforce the elaborative regulatory framework of the land
administration. There is little in the Land Act that promises to redress these
problems. The allowance for a premium of land is intended to facilitate a land
market and forestall administrators doling out land in return for illicit
payments. The mere fact that it is at the Commissioner’s discretion whether the
land will be put out for public auction renders this provision without much
value. Although it needs to be recognised that the Ministry of Lands and many
politicians will find it politically problematic to put up land for public
auction, as this would draw attention to the high premium on prime land. The
fear is that too much land will be bought by foreign investors or
non-indigenous nationals. These are political problems, but to avoid
acknowledging them will not make them go away.
The impact of the Village Land Act is a bit harder to foresee. It is
quite possible that the Act will have no appreciable impact on the way land is
administered in Tanzania’s
villages. To the extent that it will have an impact, it is more likely further
to undermine existing patterns of tenure rights rather than to provide the much
needed consolidation of land rights of poor small holders and livestock
keepers. The enactment of the Village Land Act, therefore, would seem to be an
opportunity missed. On the one hand, it incorporates much of what is required:
it vests powers in villages to administer their own land, sets out sound
adjudication procedures and puts in place what could have been a much-needed
village based land court. But, as is argued above, these provisions are set in
a context that most likely renders them ineffective.
Having said that, the manner in which the Village Land Act is
implemented and enforced is likely to vary significantly across the country.
There could be considerable mileage in public awareness campaigns that seek to
build on the positive aspects on the Act and attempt to put in place procedures
of land adjudication that are transparent and well understood. In other words,
the Village Land Act, albeit deeply flawed, can be seen as an opportunity
presented. Its enactment could be used as a springboard for a new attempt at
making sense of land rights in rural Tanzania. Such a drive would be
more effective, if given a high profile and if a concerted effort was made to
collect relevant information and experiences to enhance the understanding of
policy makers and practitioners of the challenges that are at stake.
Is it politically realistic to call for a return to the drawing
board for the National Land Policy and the Land Acts? On the face of it,
probably not. What could be expected, on the other hand, is that the questions
related to land and land tenure are accorded the attention they deserve in the
national policy process and that much more concerted efforts are made to understand
how a viable system of land tenure can evolve that protects rather than
undermines existing rights of smallholders and livestock keepers. At the very
least, one would hope to be able to assess to what extent the new Acts are a
step in the right direction.
References
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printed in MLHUD 1994).
Bruce, J.W. 1994a. “Review: The Report of
the Presidential Commission of Inquiry into Land Matters,” prepared for the
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Bruce, J.W. and S.E. Migot-Adholla (eds.).
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The Village Land Act can be seen to take
the basic pronciples of the 1975 Village Land Act to its logial conclusion by unequivocaly
concentrating the ownership of land in the hands of the Village Council. The
1975 Act followed the villagisation drive in the early 1970s, which at the time
evoked the following observation on its effect on land rights from a common
villager:
“In the old
days, that is before Villagization, people owned the land. You could sell the
house and the earth because no man would buy a house without first looking at
the land with it. But most people cleared their own land, and even when people
began to come and buy houses here they got more land by asking people with a
lot of land to give them some, or they borrowed it. Today you can’t do anything
with your land. It is not our land anymore.” (Wily
1988: 288)
