Ownership and security of land is central to the cultural survival of ethnic minorities in countries such as Tanzania. For the past decade, the struggle for the land rights of cultural minorities in Tanzania has, amongst many fronts, focused on obtaining legal rights from courts of law. The central aim of these efforts is to obtain "a community-based test case to establish the deemed Right of Occupancy," that is the legal embodiment of the common title to land for a "native community," as defined by Tanzania Land Law. The existing wisdom holds that once a precedent is established on the nature of the common title over, say rangelands, it will be much easier for communities, at least legally, to stop the continual encroachment on their extensive rangelands under the pretext that such land is terra nullius (no one's lands) or is underutilized.
True enough, precedents have been established during the years in a variety of Court cases on land, but whether these have enhanced the struggles of these communities remains doubtful.
Established Precedents over Customary Title to Land
The Tanzanian courts today recognize the equal status of the Deemed Right of Occupancy, or Customary Title vis-à-vis the Granted Right of Occupancy As a consequence of this recognition, the Customary Title to land may not be extinguished without following the provisions of the law that allow the state to acquire landed private property, (e.g. the Land Acquisition Act, 1967). Statutes that extinguish Customary Titles without adhering to constitutional protections are therefore null and void; also the mere administrative extinction of customary titles by using administrative mechanisms (e.g. declaration of planning areas), cannot effectively extinguish such titles in law.
Furthermore, the Tanzanian Courts recognize the native community's title to the commons (e.g. pasture land), upon proof of the existence of customary law within that community that recognizes ownership of the commons. Following this, the Courts today appear to have refused to recognize statutory corporate bodies, such as Village Councils, as customary holders of the collective Deemed Right of Occupancy over the commons. Where customary holders need to lodge a matter in Court relating to the particular commons, either a representative suit must be filed listing all the possible beneficiaries or all the beneficiaries must appear as plaintiffs. In matters related to damages, each plaintiff must prove the extent of damage. Time limitation is extremely important as the claim would be time barred in three years from the time the cause of action arose. And on questions regarding the social and cultural profile of communities, Courts are willing to receive experts' evidence from anthropologists, ethnologists, sociologists etc., provided it includes detailed ancestry, genealogies, names of landscapes, geographical marks, ancient paths and roads, common resources and their maintenance, cultural systems and artifacts, grave sites, sacred places, traditional property systems and resources, economic activities, nomadic cycles, etc.
Finally, the Tanzanian Courts have been willing to apply the relevant legal provisions that protect the property rights of natives resident in lands that are statutorily reserved for public purposes. The Mkomazi case, reviewed herein, is an example of this position. It is doubtful, however, if the Courts are willing to subject the statutes to constitutional standards that guarantee basic rights to life, movement, and property. In 1988, Shivji and Kapinga argued that if Courts have held that human rights provisions must be given a generous and purposeful interpretation then the term `property' in Article 24 of the Constitution of Tanzania, which guarantees the right to property, must include the `bundle of rights' that would encapsulate the pastoralists' concept of property. They argue that the Court of Appeal in Attorney General versus Lohay Akoonay in 1994 came close to that position.
The Mkomazi Game Reserve Eviction Cases
The early Barabaig pastoralists' cases, like the Mulbadaw case and Yoke Gwako case, deal with dispossession of pastoralists from their lands by a public corporation, NAFCO. Other cases have focused on the role of allocating authorities -- Village Councils, Ministry of Lands, etc. -- in allocating land to individuals and private `investors.' The dispossession of cultural minorities by the government for conservation has been authoritatively dealt with for the first time in the case of the pastoralists of Mkomazi Game Reserve, forcefully evicted in 1988. Two cases were filed in the High Court of Tanzania, Kamunyu and 16 Others versus Minister for Tourism and Natural Resources and Environment; and Kopera Keiya Kamunyu and 44 Others versus The Minister for Natural Resources Tourism and the Environment and Three Others. Both cases were later consolidated. The High Court, per Justice Edith Munuo, gave its decision in June 1998.
The Facts of the Case
The Maasai pastoralists testified in Court that they have been living in an area known in Maasai language as Alilalai Lamwasuni, covering the Umba and Same areas of the Mkomazi Game Reserve (MGR) area in northeastern Tanzania, and that the vast plains adjacent to and bordering the Tsavo National Park in Kenya, between the Usambara Mountains in Lushoto District (Tanga Region) and the Pare Mountains in Same District (Kilimanjaro Region), are customary Maasai lands. The MGR was established by the British Colonial Authorities in 1951 by a statute known as the Fauna Conservation Ordinance -- later repealed and replaced by the Wildlife Conservation Act of 1974.
After the reserve was established, the resident pastoralists were enumerated in 1952, and the authorities updated the list in 1963, 1968, 1971 and 1983. Both statutes -- the Fauna Conservation Ordinance and the 1974 Act -- provided for the recognition and preservation of preexisting customary land rights. The Maasai contended that such rights could not be extinguished or encroached upon without following the legal safeguards recognized by law. Nevertheless, in 1988, they were forcibly evicted from the reserve on orders and instructions of the Minister for Tourism, Natural Resources and Environment through the Director of the Wildlife Division and the Project Manager of the MGR.
The eviction was carried out in a military fashion, causing unprecedented loss and suffering to families and property. The evicted Maasai were neither compensated nor offered alternative residential or grazing lands, as the law required. As such they claimed damages worth billions of shillings. The Court accepted the testimony of damage in the following words:
"...game scouts and militiamen effecting the eviction assaulted pastoralists, harassed their families, mothers with newly born babies had to be carried and dumped into the bush in the rush of the eviction, cattle, donkeys and calves strayed into the wilderness where they were lost or devoured by beasts; bomas, huts, kraals, cattle, domestic articles, food stuffs, veterinary medicines, cash and ornaments got lost or razed down by the fires the game scouts started. Families were dislocated and broken up. In short the plaintiffs were seriously inconvenienced, put to a great crisis and thrown out of the reserve without assistance for resettlement in terms of alternative land."
The Court framed five legal issues: whether the plaintiffs as members of the Maasai Pastoralists Community had customary land rights in the MGR before their eviction; whether their eviction was lawful; whether they had suffered damages as enumerated in their claim; whether they were entitled to alternative land and compensation; and last, to what remedies were the parties entitled.
The Defendant's Case
The Attorney General, who represented the government as the defendant in the case admitted that the Maasai had been evicted in 1988. But he contended that the Maasai had been given notice to vacate but they did not (as alternative land in Handeni, Kiteto, and Ruvu areas were unsuitable due to lack of necessary resources for grazing, such as water). Further, he asserted that the Maasai were notified of the eviction operation, but the plaintiffs were adamant about not moving, hence the authorities had no choice but to use force. The Attorney General admitted that the use of force resulted in damage and loss, but claimed its value was nominal. He therefore asked the Court to order the Maasai to resettle themselves at Ruvu, Morogoro, Handeni, and Kiteto areas on the basis of self-reliance and the authorities would supplement their efforts!
The Attorney General, on the behalf of the authorities, further contended that the claim was not maintainable by law since the Maasai had only occupancy permits from the government to stay in the MGR. By law, they were mere licensees staying in the MGR by the good grace of the government, and when the permits were revoked, no one could question the discretion of the authorities. Alternatively, the Attorney General observed that the Maasai in court were residents of the Umba Game Reserve, a portion of the MGR in Tanga Region, but the claim related to a portion of the MGR that is in Kilimanjaro Region. Therefore, the Maasai had no basis for the legal claim. The area they were allowed to live and graze in was the Umba Mkomazi Reserve. Furthermore, since most Maasai claims concerned basic rights under the constitution, they should have presented a Constitutional Petition rather than a suit, as they had done. Lastly, the claim for damages was based on Law of Torts (or Civil Wrongs) and compensation under that category could not be entertained, as torts must be lodged in Court within three years of breach. The eviction happened in 1988 and the Maasai appeared in Court in 1994, and as such, their claim was time barred by the Tanzanian Statute of Limitations of 1971.
The Maasai Plaintiffs' Case
The advocates for the Maasai plaintiffs, Sifuni Mchome and Ibrahim Juma, of the Legal Aid Committee, Faculty of Law, University of Dar Es Salaam, submitted that the Land Ordinance of 1923 only required proof of occupation and use of land to establish a customary title to land. The Maasai plaintiffs established that they have been in MGR for generations, owning the vast plains of Alilalai Lamwasuni as common property of the community for grazing and community life. Further, the authorities had listed or registered them and allowed them to keep their pre-existing rights as required by the Fauna Conservation Ordinance and the Wildlife Conservation Act of 1974.
According to the established legal principles and constitutional protection of property, the only method of extinguishing and acquiring landed property rights by the state in Tanzania is under the Land Acquisition Act of 1967. The procedure requires establishing a public purpose that justifies the acquisition. Then a consultative process follows where, upon agreement, the rights-holders are compensated and/or given alternative land. In case of disagreement the parties have recourse in the Courts. The procedure was not followed in this particular case. The Court of Appeal of Tanzania, as recently as 1994, has established that failure to follow that procedure renders the outcome null, void, and unconstitutional.
Similarly in Tanzania, there are other statutory enactments that deal with conservation (Game Ordinance of 1949; National Parks Ordinance of 1959, Ngorongoro Conservation Area Ordinance, Public Land (Preserved Areas) Ord. Cap. 338; etc.), and all tend to accommodate and do not extinguish Customary Land Rights once land is subjected to conservation measures.
As for damages, the Maasai plaintiffs argued that since the eviction resulted in damage and loss, the Court could not make a technical separation on differences between a land claim and a tort claim; compensation to the Maasai was necessary on the common law principle of restitutio in integrum, or the `original position of the parties.'
The Courts' Decision
The Court refused the Attorney General's objection that there was no cause of action before the Court. Judge Edith Munuo held that there was a valid claim of title to land before the Court, however, she agreed with the Attorney General that the claim for damages arose from tort and hence was barred by the statute of limitation.
The Court observed that the suit was not filed as a representative suit, so as such, stated on page 34 of the Judgment, that the "judgment shall not canvass the pastoral Maasai community en masse." Clearly the Court avoided conceiving that rights in the commons claimed by any member of the community were capable of establishing the rights of all members. A narrow positivistic approach was taken by the Court to avoid the obvious sociological interpretation of rangeland rights in a pastoral community.
The Court held further that the Maasai plaintiffs established the existence of their Customary Land Rights in the Umba Game Reserve, in a portion of the MGR. Because the Customary Land Rights of the Maasai plaintiffs at Umba Game Reserve were not revoked in compliance with the Land Acquisition Act of 1967, their eviction from the MGR was unlawful. However, since the eviction occurred in May 1988, the case had been overtaken by events (the Court is not specific what kind of events) and therefore the claim for the return of their lands could not to be granted.
Furthermore, under Article 24 of the Constitution, the Maasai plaintiffs are indeed entitled to alternative land and compensation from the acquisition of their land, then each of the deserving plaintiffs who actually testified in Court (15 out of 53 did not testify) was awarded compensation of Tshs. 300,000, or about US$450!
The authorities, the Court finally directed, should relocate the Maasai plaintiffs to areas that have sufficient grazing land "so that the pastoral plaintiffs can resettle on self-help basis." The Court finally stated that the suit partially succeeded on the ground of alternative land and compensation.
It is noteworthy that the Court stated that some claims were constitutional in nature, and as such, they should have been lodged by way of petition -- those were struck out. Then, on the question regarding which rights were superior, either those of the game reserve or those of the Maasai pastoralists, the Court refused to make a declaration, but nevertheless stated on page 38 of the Judgment that the MGR "is for wildlife so any Customary Land rights therein have ceased to exist."
Shivji and Kapinga state that the community-based test case is not the best method of advancing the common rights of a community. The forum is wrong and those who may have no interest in advancing the course of the community determine the rules. Too many disappointments occur in the process and the focus is not on the community but on a Court drama dominated by lawyers. They advise that piecemeal cases against individuals in the officialdom, and a step-by-step legal approach may be better. Alternatively, systemic legal reform that is community focused may bring better results. Yet, in the epilogue to their book, on the Ngorongoro authorities' attempts to get a title for their whole area, they suggest pursuing a community-based Court action. It seems the answer depends on which right the community needs to enforce. It also shows that lawyers are still uncertain as to how they may advance the struggle of these communities through legal channels.
In the Mkomazi case, clearly the community could not proceed in a piecemeal fashion. Nevertheless the Court's judgment is a disappointment on several levels. First, while the Court deals with established case-law precedents and statutory authorities clearly establish the Customary Rights of the Maasai pastoralists in the MGR and that their occupancy in the reserve has been wrongfully determined, it completely fails to give obvious remedies. Once the Court had declared breach of a Basic Right, (unlawful acquisition of land in this case), the remedy was to order reoccupation. By not granting the obvious, the Court's pretext is that this remedy has been overtaken by events; no legal authority, either in case law or statute, is referred to. This solution seems to be one peculiar to this case. The Court avoids the cardinal principle of justice -- treat like cases alike.
Second, whilst the authorities had failed completely to relocate the Maasai plaintiffs or compensate them, the Court undertook this task despite the government's failure. The result, however, was sadly lacking. The Maasai plaintiffs were all compensated a paltry monetary sum without reference to what they have actually lost. The criterion for equal compensation is not explained anywhere. No precedent or statutory authority is quoted for this `unique' solution. Regarding alternative land, the Court attempts to give a directive to the authorities that has no legal or practical force. The Maasai plaintiffs have to practically assist the authorities in seeking alternative land "on self-help basis" -- the victims have to seek their own remedy! The injury is proved, yet the Court avoids the obvious remedy!
Third, categorizing damages as `tortious' is clearly debatable. While the case is about a land claim arising from trespass, the consequent damages are severed from the whole claim by a technicality. It is obviously advantageous to the Authorities to take the consequences of the injury proved against them out of the purview of the Maasai claimants, by alleging that they are time barred, otherwise the authorities were liable for colossal amounts of compensation. The Court legitimizes the eviction indirectly. The case, in no way, punishes the perpetrators of a massive injury against a defenseless people.
It seems, therefore, the Mkomazi case is one step forward in that the recognition of customary resource rights in game reserves has been established and that extinction of such rights must follow due process based on constitutional safeguards. Yet the case is two steps backwards in the sense that the community is left to wonder how this `legal victory' can be translated into positive benefits when they are left to fend for their own remedies without returning to their lands. At the end of the day, the dispossession remains untouched. The Maasai plaintiffs have appealed to the Court of Appeal of Tanzania. Maybe that Court will now clear up doubts prevalent in similarly placed communities about the worth of these "test-cases" and "precedents."
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