Dispossession and Land Tenure in Tanzania: What Hope from the Courts?
Land tenure is essentially defined and regulated by the Land Ordinance of 1923 (Revised Laws of Tanzania), but since then, the entire body of land in Tanzania has been declared `public lands.' Rights over the land are under the control and direction of the President of the United Republic and those rights cannot be disposed of without the consent of the President. The President has radical title to all land in Tanzania and under the Ordinance, must ensure that the land is held and administered for the use and common benefit of Tanzanian natives. But in reality, village authorities have been giving away land -- previously used by villagers -- to commercial farmers and public corporations without such consent.
A native individual or community lawfully occupying land in accordance with native law and custom is deemed to have a "Right of Occupancy." It is worth noting, perhaps, that clans and tribes have been deprived of ultimate control and ultimate title to land. Such control and such title are still vested in the President.
The Socialist Disaster
In February, 1967, Tanzania adopted the Arusha Declaration -- a blueprint for Ujamaa or `familial unity' socialist development. Under the Arusha Declaration, major holdings were acquired and invested in public and statutory corporations like banks, insurance, merchant shipping, industries, and internal and external trade, as well as large commercial farms.
In 1974, following the same socialist path, the State embarked upon a Villagization Program. Millions of people were uprooted from their ancestral land and were resettled in communes, similar to Stalinist Russia. The idea behind this craze was that it would be easier to provide social services to people living together in a planned village than spread out over the countryside. Communal farming, as opposed to individual farming, would increase and rationalize production.
The Villagization Program was, in conception and implementation, high-handed, illegal, and criminal. As force was employed to group people together, the socialist dream changed into a socialist nightmare. There was no legislative basis for the program or its implementation; it was ill-conceived and ill-prepared; and it led many Tanzanians to become very bitter towards the State.
The Villagization Program was undoubtedly, a fiasco. Yet because of the highly oppressive political atmosphere at the time, no one tested the legal validity of the program in court. After all, Party Supremacy in 1997 was accorded de jure formality in the Constitution of Tanzania. All organs of the State were subjected to the sole political party, CCM, or Chama Cha Mapunduzi (meaning `Party of the Revolution'). Article 10 of the Constitution stipulated that:
"All political activity within and concerning the United Republic shall be conducted by, or under the auspices and control of the Party; Subject to this Constitution, all activities of all public institutions in the United Republic shall be conducted under the auspices and control of the Party; The Party shall have the duty to ensure that all organs and institutions entrusted with the discharge of public functions carry out those functions in strict adherence to the provisions of this Constitution and the laws of the land."
Accordingly, the judiciary was to operate under the supervision of the Party.
As the program lost steam, village authorities started their own reallocations. Prime land was taken out of communal ownership and allocated to favorite villagers. This, quite naturally, exacerbated the anger, frustration, and disaffection of those who were uprooted from their ancestral land and resettled in communes. They witnessed their land slowly slipping into the hands of others.
In 1985, Julius Nyerere, the architect of Ujamaa socialist policy, vacated the presidency, but continued as Chairman of the Party until 1987. The new government of President Mwinyi might have been socialist -- of sorts, but it had a streak of ambivalence. Mwinyi was more of a pragmatist and much less doctrinaire than Julius Nyerere. But the socialist cabal, however, was still calling the shots within the party leadership.
Because many viewed President Mwinyi as a liberal, people started to ask some pointed questions: Why should people be uprooted from their ancestral land -- and next year, the same land is allocated to someone else? Could this be legitimate? I was consulted on the matter by a few peasants from Mbulu, Babati, and Hanang Districts, Mareu Village, and Arumeru in Arusha Region. We eagerly looked into the matter since we had no sympathy for the socialist experiment and were disenchanted with the doctrine of Party Supremacy.
It became clear, in our humble view, that the Villagization Program had no legislative basis. Similarly, the form of tenure that would govern the new communes was not defined. It was noted that the Rural Lands Act (No. 14 of 1973) was in place, but not once was it ever invoked as the means by which the Villagization Program was to be implemented. In any event, we believed that properly construed, the Act does not empower any body to extinguish anyone's deemed Right of Occupancy. This Act could not be construed to encompass forcible expropriation of land without an opportunity to be heard and without compensation.
Having understood the legal position as we perceived it, some villagers instructed us to proceed to court and place the matter in the hands of the law. They wanted those who were occupying their ancestral land evicted and possession returned to them -- the die was cast.
Several suits were filed. Some plaintiffs developed cold feet and quickly abandoned the suits since the sheer mention of Ujamaa was still sufficiently intimidating to some peasants. Two cases were successful in 1986 and 1987. We are proud to have been associated with those cases and generally with the endeavors to redress the injustice occasioned by the insanity of the socialist experiment. (As Chinua Achebe wrote in Things Fall Apart, "The lizard which successfully jumped from the high iroko tree to the ground said: I shall praise myself if no one else did.")
Our clients, Lohay Akonaay and his son Joseph, quickly repossessed their land. Kalist Antony, the other plaintiff, did not fare as well; a school had already been built on his land and therefore, executing the decree became problematic. In the meantime, the success of the two cases led to an avalanche of similar cases that sent shivers down the spine of the ruling party. The Ujamaa policy was now being discredited and they were exposed as not having adhered to the Rule of Law in implementing their ill-fated programs.
The State's first reaction was to use the Rural Lands Act No. 14 of 1973. In 1987, the Prime Minister attempted to extinguish customary rights in 106 villages by enacting Government Notice No. 88 of February 13, 1987 which represented an "Extinction of Customary Land Right Order. It stated that:
"All customary land rights within the areas specified in the Schedule to this Order which areas are in Arusha Region, are hereby extinguished; [And] where any customary land right is extinguished in accordance with paragraph 2, the land shall rest in the District Council which has jurisdiction over the area where the land is situated and that District Council may distribute that land in the way it deems fit."
This step was ill-conceived and too little and too late. We pointed out that the Rural Lands Act provides for planning and using land, not for acquiring and/or extinguishing tenure.
The validity of the Government Notices were considered in High Court Civil Case No. 27 of 1985, Tito Saturo and Seven Others versus Matiya Seneya and Others. This case emanated from Mareu Ujamaa village. The peasants sought to recover their ancestral land from the current occupants who were also the village leaders. The High Court accepted the contention that the Government Notices were ultra vires or beyond their control; only the minister responsible for regional administration could make the regulations and only after consulting the minister responsible for lands. The Government Notice did not, in any case, indicate that such consultation had ever taken place.
The court further upheld the unconstitutionality of the principal legislation and resulting notices for failure to provide those affected with an opportunity to be heard -- not to mention the unfair, slow, and inadequate compensation and for overriding the general principles of law.
Act No. 22/92 -- Panic Or Cool Headedness?
The ruling party panicked; the interests of local notables and party leaders were on line. These people, under the cover of the Villagization Program, had appropriated good and substantial land to themselves. Now they were being besieged and bombarded by lawsuits and these cases did not appear to be going their way. The Prime Minister and First Vice President, John Malecela, made a brave ministerial statement in parliament assuring parliament and the country that the gains of the Ujamaa socialist policy would not be reversed. The Minister for Lands, Edward Lowasa, and his predecessor Marcel Komanya, had expressed similar sentiments earlier on.
The Chief Justice issued a circular that all land cases in the areas affected by the Government Notices should not go on trial to give the government time to find a solution to what seemed an intractable problem. A Presidential Commission of Inquiry into Land Matters or "the Land Commission," was established in January, 1991 and chaired by Professor Issa Shivji, a noted Tanzanian jurist and legal scholar from the University of Dar es Salaam. The Land Commission presented two reports, one in November, 1992, the second in January, 1993. The former and more prominent of the two, focused on land policy and land tenure. The latter concentrated on selected land disputes. To date, however, no action appears to have been taken with respect to the two reports.
In the meantime, the government proposed a bill entitled the Regulation of Land Tenure (Established Villages) Bill, which was expected to solve all the problems of land tenure that arose from Villagization. If passed, this would violate the separation of powers by nullifying already obtained court decrees, violate the right to be heard before one is deprived of one's property, and deny access to ordinary courts of the land, the right to own property, and sustain life. Lohay Akonaay and his son Joseph promptly instructed us to do something about this injustice. We filed a Petition in the High Court alleging that, if the bill were tabled, it would certainly be passed; and that if passed, it would violate the constitutional rights of our clients.
We then informed the Party speaker and the press about the petition in hopes that the bill would not be discussed and passed, on the principle of sub-judice, since it would be before the courts. Not one single news medium informed the public of the petition, and no one mentioned it in parliament. Having enacted the bill into law, there was no option to withdrawing the petition.
The High Court had upheld our contention that, in substance, the entire Act was beyond the legal powers of the Constitution of Tanzania. A deemed Right of Occupancy was held to be `property' within the ambit of Article 24 of the Constitution. Therefore, one cannot be deprived of that interest without due compensation. The High Court also ruled that occupants have the right to be heard before expropriation of property, and that the Court's jurisdiction in respect to land claims could not be removed, therefore providing access to ordinary courts and rejecting the breach in the principle of the separation of powers. Other points concerned discrimination against the peasantry, nullification of court decrees by the legislature, and the right to sustain life.
The State appealed this decision. We researched the points of law. We thought that this was an opportunity for the Courts to give protection to the peasants and, more importantly, to pastoralists. We argued that one does not have to have made improvements on the land to receive compensation when deprived of it. The mere right to use, as in the case of pastoralists, should fall under the definition of `property,' hence requiring reparations in the event of acquisition or forfeiture.
The Court of Appeal held that the "deprivation of a customary or deemed right of occupancy without fair compensation is prohibited by the Constitution." The effect of this pronouncement, however, was watered down in the subsequent remarks of the same court, in the same judgment:
"We are also of the firm view that where there are no unexhausted improvements, but some effort has been put into the land by the occupier, that occupier is entitled to protection under Article 24(2) and fair compensation is payable for deprivation of property."
The Court's ruling states that compensation is only payable when there are unexhausted improvements and/or someone is occupying the land and had put some effort -- perhaps clearing it into a farm; there must be value added to the land.
Will this cover the pastoralists? Our contention was that a mere right to use land should be construed as `property' hence attracting compensation in the event of forfeiture. We are sad to note that the Court of Appeal has not clearly ruled on this issue. The point remains unanswered and the pastoralists' plight hangs in the balance. If they were to be evicted from their pastoral land would they be entitled to compensation?
Land ownership is increasingly becoming a national obsession. It is a source of friction between families, between communities, and even between communities and State or public corporations. Commercial farming has displaced peasants and pastoralists. In numerous cases pitting Village Councils and villagers against national corporations, and there has been no pattern to the courts' rulings.
In one decision, National Agricultural and Food Corporation (NAFCO) versus Mulbadaw Village Council and 66 Villagers, the courts ruled that Village Councils hold land and could allocate land within its geographical jurisdiction "provided it does so bona fide and pays prompt and adequate compensation for unexhausted improvements," which might exclude pastoralists or foragers from any compensation. Therefore, villages have the right to allocate land, despite rights held by ordinary people if it does so in `good faith' and pays compensation; but compensation will only be paid for "improvements" to the land (e.g. buildings, plowed fields), not for the land itself. The key issue is if a pasture is an `improvement;' if not, pastoralists receive nothing!
In Mulbadaw, it suited the courts to say that (and we believe this is the correct view), the Village Council could acquire land only if it were allocated by the District Development Council. Astoundingly, the villagers in Mulbadaw lost the appeal because "none of the villagers who had testified could be said to have held land on customary tenure as none had established, or even averred, that he was a native. They were thus not `occupiers' in terms of Land Ordinance." The Land Ordinance defines a native as "any native of Africa not being of European or Asiatic origin or descent and includes a Swahili but not a Somali." NAFCO had not contested the villagers' claim on the ground that the villagers were not natives. The Court of Appeal was not prepared to take judicial notice of the fact that peasants in a remote village in Hanang in the heart of Tanzania are natives. In the end, those villagers who testified were held to be mere licensees. They were therefore lawfully evicted by NAFCO and had to find settlement elsewhere.
Several cases between villagers and corporations (the Mulbadaw case, Yoke Gwaku and Five Others, and others) involved Canadian wheat projects and included over 788 villagers who had an interest in the land under dispute. The High Court, in the Yoke Gwaku case, took a somewhat liberal approach in resolving the dispute. It held that the villagers:
"...are members of the Barbaig tribe who are acknowledged to be one of the African tribes in Tanzania, even though there was no evidence that they are citizens of Tanzania. I therefore take judicial notice, in the absence of evidence to the contrary, that they are also citizens of the United Republic and hence natives within the meaning of the term under the Land Ordinance."
The High Court proceeded to rule that customary land titles are as good as a granted Right of Occupancy. These customary titles must first be revoked under the Land Acquisition Act of 1967, before NAFCO could have title to this particular piece of land so NAFCO was held to be trespassers on those pieces of land.
The court, however, did not evict NAFCO and did not restore the land to the plaintiffs because:
"Considering that only less than 300 acres of the Gawal farm area has been proved to belong to all the plaintiffs together out of an area of over 10,000 acres of land, restoring the lands to the respective plaintiffs would mean that there would be small patches of private land inside the farm and if each of the plaintiffs brought back their livestock -- a very inconvenient situation would be created for both sides in the case."
Only Shs. 10,000 or approximately US$20 was awarded for each acre!
What Hope From The Courts?
We have seen how the courts are adept at skirting around issues. They have ducked the question relating to compensation for expropriation of a mere "right" to use land. They have avoided a situation whereby eviction orders would have to be made against new settlers and in favor of the dispossessed.
There is a reluctance on the Courts' part to ameliorate the plight of the dispossessed by granting appropriate relief; at the same time, pressure for land is increasing by leaps and bounds. Infringing on customary land rights continues at fevered pitch. Professional hunters, mineral prospectors, commercial farmers, those who hunger for Canadian wheat, and foreign adventurers reminiscent of, and encouraged by the spirit of Christopher Columbus, Ferdinand Magellan, and Marco Polo are on the rampage. Pastoral land is fast disappearing, and why not, if parks, graveyards, school playgrounds could be, and have been expropriated? This land-grabbing mania is fueled by politicians and their lackeys who are in the business of lining their pockets. They find ready support from a civil service that is bereft of professional ethics and morality and which readily sells its conscience in return for the biblical 30 pieces of silver.
The judiciary will either be kowtowing to the executive branch, as exemplified by the legally incompetent circulars and directives issued by the Chief Justice. If it were not pandering to State interests, the judiciary is generally, in the business of making money. It is a business rooted in corruption and extortion. It is a business which has grown by leaps and bounds and is now at the commanding height of the economy. Delays in hearing cases are the norm. It took over three years and extensive pressure from us to have the Ndekerei Ole Matasya file removed from the Resident Magistrates registry to the High Court registry -- and both registries are housed in the same building. In Jella Kalinga the judge took 15 months to deliver judgment and in Nangwa it took over six years for the court to supply a copy of proceedings enabling an appeal. The highest court in the land is not famous for being consistent.
The threat posed to the country by social destabilization, a widening poverty gap, and environmental degradation by illegal land grabbing appears to be acknowledged by the new government of Tanzania. It has intended to streamline land law to avoid corruption in land dealings, limit speculation, and protect village land. But not much will be achieved in terms of effectiveness if we do not have a judiciary branch to enforce the law honestly. Professor McAuslan, a British expert recruited to assist in drafting new land legislation, observed: "...it will require vigorous and honest administration of the law to make a new and transparent land policy work." Professor McAuslan could not have been more right!
Court of Appeal of Tanzania. Civil Appeal No. 31 of 1994. Hon. Attorney-General vs. Lohay Akonaay & Another.
High Court (Arusha Registry). Civil Case No. 39 of 1994. Alameni Kambini & 14 Others versus Orkesumet Village Council & 2 Others.
RM Civil Case No. 4 of 1987. Lohay Akonaay & Another versus Tluway Massay & Others. RM Civil Case No. 68 of 1987. Kalist Anthony versus Kambi ya Simba Village Council & Others.
High Court (Arusha Registry) Civil Cause No. 1 of 1993. Lohay Akonaay & Another vs. Hon. Attorney-General.
Court of Appeal of Tanzania. Civil Appeal No. 3 of 1985. National Agricultural and Food Corporation versus Mulbadaw Village Council & Others.
High Court PC Civil Appeal (Mwanza Registry) No. 266 of 1989. Rosa Petrol and Leonard Kashmiry.
High Court PC Civil Appeal (Tabora Registry) No. 13 of 1983. Ahmad Nyoni and Rashidi Mrisho & Three Others.
August, 1975 "Villages and Ujamaa (Registration, Designation and Administration) Act, 1975." in Government Notice No. 168.
High Court (Arusha Registry) Civil Case No. 52 of 1988. Yoke Gwaku & Five Others versus The National Agricultural and Food Corporation (NAFCO) & Another.
"Village Land Cases Doomed." The Guardian 11th April 1996.
Lobulu, Ben. "The Legal Profession in Tanzania: Rule of Law or Rule of Money?" unpublished manuscript.
Lobulu, Ben. "Litigating Tanzania's Bill of Rights", unpublished manuscript.
The East African. April, 1996.
Article copyright Cultural Survival, Inc.