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Allocation of Tanzanian Village Land to
Foreign Investors
Conformity to Tanzania’s Constitution and the African Charter on Human and Peoples’ Rights
Rebecka Isaksson and Ida Sigte
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Thanks First of all we would like to thank all the interviewed people who have shared their opinions
and experiences with us. This thesis could not have been conducted without your help.
Special thanks to Mr. Makala and Mr. Kirondomara for making the study in Kilwa and Rufiji
District possible.
We would also like to thank Mr. Hamisi, Mr. Lukwaro, Mr. Mango, Mr Roberntz and all the
friendly people working at Kilimanyika for helping us getting the useful contacts that we
needed in order to conduct this study.
Thanks to Kjell Havnevik and the Nordic Africa Institute for helping us when preparing the
field study.
Thanks to Carl Åke Gerdén for being our contact person in Tanzania.
We are also grateful for the advice and help from our tutor Erik Persson.
Finally we would like to thank Internationella programkontoret for the scholarship.
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Table of Contents Abbreviations........................................................................................................................... 3 Short Titles of the Laws and Regulations ............................................................................. 4 Intoduction............................................................................................................................... 5 Background ............................................................................................................................... 5 The Purpose of Our Study ......................................................................................................... 6 Definition of Terms Used in the Purpose .................................................................................. 6 Method and Material ................................................................................................................. 7 Basic Facts about Tanzania and the Institutions Involved in Village Land..................... 13 Basic Facts about the Nation................................................................................................... 13 Institutions Involved in Village Land Management ................................................................ 13 Schedule of Institutions Involved in Village Land Management ............................................ 14 A Brief Historical Background of Tanzania’s Land Tenure System................................. 15 Legislation .............................................................................................................................. 19 Management and Administration of Village Land............................................................. 20 Allocation of Village Land to Foreign Investors................................................................. 25 Schedule of How Foreign Investors Can Get Access to Village Land.................................... 36 Tanzania’s Constitution and the ACHPR ........................................................................... 37 Tanzania’s Constitution ........................................................................................................... 37 ACHPR.................................................................................................................................... 38 The Process Conformity with Tanzania’s Constitutiona and ACHPR............................. 39 Right to Equality ..................................................................................................................... 39 Right to Life ............................................................................................................................ 39 Right to Participation .............................................................................................................. 40 Right to Own Property ............................................................................................................ 43 Right to Dispose of Wealth and Natural Resources ................................................................ 44 Right to Development ............................................................................................................. 45 Conclusions ............................................................................................................................. 46 References .............................................................................................................................. 48
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Abbreviations
ACHPR African Charter on Human and Peoples’ Rights (1981)
BioShape BioShape Tanzania Ltd
CCM Chama Cha Mapinduzi (Party of the Revolution)
LEAT Lawyers Environmental Action Team
LHRC Legal and Human Rights Centre
MKURABITA Mpango wa Kurasimisha Rasilimali na Biashara za Wanyonge Tanzania
(Property and Business Formalisation Program)
NGO Non-Governmental Organization
NLUPC National Land Use Planning Commission
NVO Non-Village Organization
SEKAB Swedish Ethanol Chemistry AB (Svensk Etanolkemi AB)
TAWLA Tanzania Women Lawyers Association
TIC Tanzania Investment Centre
TSH Tanzanian Shilling
UN United Nations
WWF World Wide Fund for Nature
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Short Titles of the Laws and Regulations
Tanzania's Constitution The Constitution of the United Republic of Tanzania of
1977, Passed in the Constituent Assembly on the 25th
April 1977
Local Government Act The Local Government (District Authorities) Act, 1982,
Passed in the National Assembly on the 28th April 1982
Tanzania Investment Act The Tanzania Investment Act, 1997, Passed in the
National Assembly on the 25th August, 1997
Land Act The Land Act, 1999, Passed in the National Assembly on
the 11th February, 1999
Village Land Act The Village Land Act, 1999, Passed in the National
Assembly on the 11th February, 1999
Land Regulations The Land Regulation, 2001 (Supp, No. 16 of 4th May,
2001)
Village Land Regulations The Village Land Regulations, 2001 (Supp, No. 16 of 4th
May, 2001)
Land (Amendment) Act The Land (Amendment) Act, 2004, Passed in the
National Assembly on the 10th February, 2004
Land Use Planning Act The Land Use Planning Act, 2007, Passed in the
National Assembly on the 12th April, 2007
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Introduction
Background
The allocation of land for agricultural production to foreign investors has accelerated during
the recent years in Sub-Saharan Africa.1 Large-scale land investments can, according to the
UN Special Rapporteur on the right to food, enhance the nations’ development opportunities
but there is also the risk that the people, among other things, are deprived of their access to
productive resources.2
As there is a possibility that foreign investments increase the development in a nation, the
African governments are eager to attract foreign companies.3 This also seems to be the case in
Tanzania, where TIC, the government agency responsible for investment, claims that the
nation has abundant natural resources including untrapped arable land.4 Currently Tanzania is
promoting foreign companies to invest in various agriculture sectors in the nation such as
biofuel production.5 Up to now 640 000 hectares of land in Tanzania have been allocated to
foreign companies for biofuel production only.6
When conducting this field study our impression was that many people in the nation had high
expectations regarding foreign investments. For instance, the majority of the interviewed
representatives from the government authorities and NGOs shared the opinion that Tanzania
needed to attract foreign investments in order for the nation to develop. Also many people in
the rural areas were of the opinion that it was important to attract foreign investors.
Another impression was, however, that many of the villagers were disappointed with the
investments so far, since they did not feel that they had benefited. Many of the foreign
investments today are located on land controlled by villages, so called village land.7
Therefore the villagers are highly affected by how the investments are carried out. This
1 Havnevik, 2009, p. 3. 2http://www.unhchr.ch/huricane/huricane.nsf/view01/5A171ADA855BF615C12575D30010CEBF?opendocume
nt, 2009-12-25. 3 Havnevik, 2009, p. 8. 4 http://www.tic.co.tz/, 2009-12-20, See Why Invest in Tanzania. 5 Anonymous civil servant (1), TIC, 2009-10-02. 6 Cotula et al, 2009, s. 73. 7 Anonymous civil servant (2), TIC, 2009-10-02.
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people.
especially as the main activity in the rural areas is subsistence farming.8 About 70% of the
total land area is under the management of the nation’s 11 000 villages.9 Agriculture forms the
basis of the Tanzanian economy and it provides employment opportunities for about 80% of
the population.10 This means that the land itself is an essential resource for the nation and for
the large part of the population that lives on and off the land. It is therefore important that,
when a foreign investor wants to get access to village land, the legal process safeguards the
rights and the interests of the Tanzanian
The Purpose of Our Study
The purpose of this study is to examine the legal process, in theory and practice, when a
foreign investor wants to get access to village land in Mainland Tanzania and to analyse to
which extent the process conforms with the rights stated in Tanzania’s Constitution and in the
ACHPR.
Definition of Terms Used in the Purpose
Foreign Investor
Section 3 in the Tanzania Investment Act states that a natural person is a foreign investor if
the person “is not a citizen of Tanzania” and that a company is a foreign investor if it is
“incorporated under the laws of any country other than Tanzania in which more than fifty
percent of the shares are held by a person who is not a citizen of Tanzania”. Section 3 in the
act further states that a partnership is a foreign investor “if the controlling interest is owned by
a person who is not a citizen of Tanzania”.
Village Land
There are three different categories of land in Tanzania: general land, village land and
reserved land, Land Act section 4 (4). Section 7 in the Village Land Act regulates when land
falls within the boundaries of a village and therefore is considered to be village land. To
understand the definition of village land it is also necessary to study the definition of general
land in the Village Land Act and in the Land Act. Section 2 in the Village Land Act defines
general land as “all public land which is not reserved or village land”. On the other hand
section 2 in the Land Act defines general land as “all public land which is not reserved land or
8 http://landgudien.se, 2009-12-26, See Jordbruk och fiske. 9 Havnevik, 2009, p. 8. 10 http://www.tanzania.go.tz/agriculturef.html, 2009-12-20.
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village land and includes unoccupied or unused village land”. The two different definitions
make it unclear if unoccupied or unused village land is to be considered as village land or as
general land. Section 181 in the Land Act states that this act shall prevail in case of conflict or
inconsistency in any other written law applicable to land. This implies that the definition in
the Land Act should be used; however, it seems as if the definition in the Village Land Act is
the one used in practice. This was indicated in our study where we found that the different
villages often allocated land that was unoccupied or unused and this land was still considered
to be village land by the parties involved. In addition we were told by a civil servant at the
Commissioner for Lands that the definition in the Land Act is not used in practice and that the
definition is a technical mistake in the law.11 We have therefore chosen to use the definition in
the Village Land Act in our thesis which means that unoccupied or unused village land also
falls under the category of village land.
Mainland Tanzania
The United Republic of Tanzania is a union between the Mainland of Tanzania, former
Tanganyika, and Zanzibar. Land matters are not listed as a Union matter in the Constitution of
the United Republic of Tanzania of 1977.12 This thesis only deals with the legal process of
Mainland Tanzania and from now on Tanzania will mean Mainland Tanzania.
Method and Material
This Minor Field Study has been conducted in Dar es Salaam, the Rufiji District and the
Kilwa District in Tanzania. The field work was carried out from the 23rd of September to the
25th of November, 2009. We found it necessary to conduct part of our study in Dar es Salaam
since this is where most of the national government authorities are situated. In addition Dar es
Salaam has a big university and many NGOs have their main offices there. The reason for
visiting the Rufiji and Kilwa District was that foreign investors were in the process of getting
access to large land areas in some of the villages in these districts.
The purpose of our study has both theoretical and practical elements. When examining the
legal process in theory we have studied national legislation, literature and reports. The
examination of the process in practice has been carried out by using a qualitative method. We
found that a qualitative method was most suitable since we wanted to get a deep
11 David Mushendwa, Commisioner for Lands, 2009-11-10. 12 Shivji, 1998, s. 2.
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understanding of the process in practice. The qualitative part of our study has been to conduct
interviews.
We have used literature and reports written by Tanzanian authors as well as by authors from
other countries. Our aim has been to study literature and reports written by Tanzanian authors
in particular since we believe that it is difficult to grasp the whole picture otherwise.
However, finding such material has not been easy. Unfortunately non-Tanzanian authors are
therefore over-represented in the essay and this is a matter that we have had in mind when
conducting this study. Our ambition has also been to use texts by well-established authors. We
have therefore only used works which are frequently referred to in other material. Four of the
books we have used have been published by NGOs, which can be problematic since they have
set agendas. However two of the books were written by Issa G Shivji, a well-known Professor
of Law at the University of Dar es Salaam. The third book was written by Liz Alden Wily, an
independent land expert, who is often involved in research concerning land management in
Africa. The fourth book was written by Lorenzo Cotula et al and his work is often referred to
in literature concerning land and development issues. We therefore considered the value of the
mentioned books to be high even if they were published by NGOs.
We would also like to point out that in three cases we have, unfortunately, been forced to
make references to secondary sources. Using a secondary source without being able to control
its accuracy of course affects the value of the material negatively. Two of the secondary
sources concern information that we have found in a book written by Sanna Ojalammi where
she refers to unpublished papers that we have not been able to find. The third secondary
source concerns a Presidential Order which, unfortunately, we did not get access to. We were,
however, informed by both the Director General at NLUPC and by a Senior Land Officer at
Commissioner for Lands about the existence and content of the order.13
In some cases we have collected information from internet sources. Concerning basic facts
about Tanzania we have used the National Website of the United Republic of Tanzania and
Landguiden. The information on Landguiden is produced by the Swedish Institute of
International Affairs, which is a politically independent institution that is engaged in
information and research about international political issues.14 Regarding the prevalence of
13 Gerald K. Mango, NLUPC, 2009-10-13 and David Mushendwa, Commissioner for Lands, 2009-11-10. 14 http://www.ui.se/defaultE.aspx, 2010-01-06.
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corruption in Tanzania we have used the Corruption Perceptions Index found on the website
of Transparency International, which is a politically non-partisan, anti-corruption,
organisation.15 The thesis also contains information from the website of TIC concerning the
agency’s activities, information from the website of the African Union regarding Tanzania’s
ratification of the ACHPR and information from the website of Office of the United Nations
High Commissioner for Human Rights concerning land investments and food security.
To examine the process in practice we have conducted interviews with the different
stakeholders; government authorities, district authorities, Village Council members, Village
Assembly members and investors. We have also conducted interviews with NGOs and
academics in order to get an outside perspective of the process. The interviews were semi-
structured with the aim of having a dialog with the interviewee. Some of the interviewee
groups were, however, asked the same questions. For example we posed the same questions to
all the Village Assembly members. This was done since we believed that this was the best
way of making sure that as many aspects as possible of the process were covered. Even if
some questions were set we tried to avoid directing the interviewee by welcoming them to
speak freely about their opinions and experiences. The questions were also adjusted to the
level of knowledge of the interviewee. In addition we tried to avoid leading questions and
questions that could be answered with just a yes or a no since we did not want to influence the
answers. We are, however, aware that there is a risk that the interviewee could notice what
answers we expected and therefore adjust the answers in that direction. Another issue which
needs to be considered when interviewing, for example government authorities and
representatives from NGOs, is that it can be difficult to know if the opinions and experiences
they express are their personal views or the view of the institution.
There is always a risk when conducting interviews that the interviewee does not feel
comfortable to answer the questions honestly and this especially when the questions concern
sensitive matters. In order to avoid situations where they would not be able speak sincerely
we tried to explain that our aim was not to make an investigation but to study their opinions
and experiences. In particular when we interviewed representatives of the two investors we
felt that they were not comfortable with the situation and in those cases we therefore made our
intention of the interview very clear and we also avoided asking some sensitive questions. In
15 http://www.transparency.org/about_us, 2010-01-06.
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addition we gave each person interviewed the option of being anonymous. This was done to
make it possible for them to participate and answer frankly and we considered that to be more
important than being able to publish all our sources.
When conducting interviews it is important to make the selection of interviewees as objective
as possible. The selection of our interviewees was based on the person’s position and not on
their opinions but we are aware that our study only covers the opinions and experiences of a
few people in each interviewed group. There is an over over-representation of men in the
interviews which is, of course, a weakness in our study. Our ambition, however, has been to
interview men and women to the same extent but often this has not been possible since men
are over-represented in many positions in Tanzania. We have interviewed men and women to
the same extent when this was possible and for example the Village Assembly members
interviewed consist of both men and women.
One part of our study is based on two cases that both serve as examples of what the process
can look like in practice. In addition the cases provide the opinions and experiences of the
stakeholders involved. In each case there is a foreign investor that is in the process of getting
access to village land and the cases therefore consist of one foreign investor, the Land Officer
in the concerned district and people from some of the villages concerned. The two investors
are SEKAB and BioShape which are both biofuel companies. SEKAB, which is a Swedish
owned company, is planning to cultivate sugarcanes in order to process it to ethanol and
BioShape, which is a Dutch company, is planning to cultivate jatropha for the same purpose.16
Our aim, however, is not to examine the biofuel industry or to investigate the companies’
businesses. The two biofuel companies have instead served as examples since it is not
possible to study a more large-scale sample of the investments in Tanzania. We thought that
the two investments could serve as interesting examples since they were both in the process of
getting access to large areas of village land. Another reason for choosing the two companies
was that that we were told by a civil servant at TIC that the villagers in the Rufuji District
were complaining about the investment while the villagers in the Kilwa District were
satisfied.17 We therefore wanted to see if that was the case and if so if it could be connected
to how the transfer of the land had been carried out.
16 Anders Bergfors, SEKAB, 2009-10-28 and Pius Cheche, BioShape, 2009-10-24. 17 Anonymous civil servant (2), TIC, 2009-10-02.
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BioShape has invested in the Kilwa District and the company has already started some
operations in the area. According to the Assistant Director at BioShape the company has been
allocated 34 000 hectares of land in four villages in total.18 We have visited three of these
villages; Liwiti, Mavuji and Migeregere. As already mentioned the company has started some
of its production but they have not gone through with the whole process yet. They have been
granted a Certificate of Incentives and the village land has been transferred into general
land.19 SEKAB has not come as far in the process as BioShape but there are villages in the
Rufiji District that have agreed on transferring land which can be allocated to the company.
Nyamwage, Nyanda and Utunge, which are the three villages that we visited, have all agreed
on the transfer of land. In total SEKAB is planning to get access to 180 000-200 000 hectares
in 18 villages in the Rufiji District.20 Since the company is planning on getting access to very
large areas of land we thought that it was an interesting case to study even if the process is
still at an early stage.
It is important to note that both these districts are situated on the coast of eastern Tanzania.
The districts have their own characteristics concerning for example sources and levels of
income, patterns of agriculture, education level and they are not necessarily representative of
the whole country. We have not examined all the foreign investments in the two districts
mentioned and we have only visited some of the villages in each district. Our study is
therefore limited and can only be seen as an example of what the process can look like in
practice.
When interviewing Village Assembly members we have encountered several difficulties. One
of the difficulties was connected with selection of interviewees. All the people in this category
have the same position of being a Village Assembly member and the selection of interviewees
could therefore not be based on their occupation. We decided to select the interviewees
randomly but that was problematic in some of the villages where the village leaders tried to
direct us to certain assembly members. It was important for us not to interview the persons
selected by the village leaders since we believed that there was a risk that only people with
the same opinions as the leaders had been selected. Another difficulty that we encountered
when visiting the villages was that in some cases it was hard to conduct interviews in private.
18 Pius Cheche, BioShape, 2009-10-24. 19 Anonymous civil servant (2), TIC, 2009-10-02. 20 Anders Bergfors, SEKAB, 2009-10-28.
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We tried to conduct the interviews in privacy since we believed that there could be a risk that
that the interviewed person would not feel comfortable to speak his/her mind if other people
were around. This, however, was not possible in all the cases since it was sometimes the wish
of the interviewed person to be accompanied by other villagers, a wish that we respected.
Few people in the villages visited spoke English and we therefore had to hire two interpreters,
one in each district. Our questions were translated into Swahili and the interviewees’ answers
were translated into English. The interpreters had no formal training or education in
translation but they both mastered Swahili and English very well. To use an interpreter makes
the risk for misunderstandings greater and there is also a risk that the translator makes his own
interpretations. To avoid such problems we tried to make it clear to the interpreters that we
wanted them to translate the interviewees as accurately as possible. Here we would also like
to point out that when quotations of the people in the villages are used it is the words of the
interpreters that we have quoted.
After examining the legal process in theory and practice we analysed the conformity of the
process with relevant regulations in Tanzania’s Constitution and the ACHPR. The reasons for
choosing the constitution were that it forms the basis of Tanzania’s legal system and it
regulates the basic human rights to its citizens. The reason for choosing the ACHPR was that
the charter is established at a regional level. The charter was established by the African States
members of the Organisation of African Unity.21 We believed that the charter would be more
deeply rooted in Tanzania and that Tanzania’s involvement in the shaping of the charter could
be less questioned than with for example an UN charter. We would like to point out that we
have not analysed all the regulations in the constitution and the charter and our aim is not to
make a full review of the regulations.
21 See Preamble of the ACHPR.
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Basic Facts about Tanzania and the Institutions Involved in Village Land
Basic Facts about the Nation
The official name of the nation is the United Republic of Tanzania. The nation is a union
between Main Land Tanzania and Zanzibar. The population was estimated at 41 500 000 in
the year 2008. As the official name indicates Tanzania is a republic and the highest political
body is the President. Tanzania has a multi party system since 1992 and CCM is the
dominating political party since 1977.22 Section 3 (1) in the Constitution states that “The
United Republic is a democratic, secular and socialist state which adheres to multi-party
democracy”.
Institutions Involved in Village Land Management
The public administration on the national level is lead by the President who is the head of the
Government. The Government functions are executed through ministries which are led by
Cabinet Ministers. The National Assembly is the organ that oversees and advises the
Government on behalf of the people.23 Mainland Tanzania is divided into 21 regions and 120
districts.24 The regions and the districts are lead by Regional and District Commissioners
which are the representatives of the President. The Commissioners are assisted by
Administrative Secretaries who are responsible for ensuring that the local government uses its
recourses in a sustainable way for the benefit of the people.25 The districts are divided into
divisions that consists of a number of wards and each ward contains of a number of villages,
according to the Local Government Act section 29 (1) (2), 30 (1). The population in a village
can be around 2000 to 4000 people.26 The smallest administrative unit is the so-called
Kitongoji. The Local Government Act section 30 (3) states that each village shall be divided
into not more than five Vitongoji, which is Kitongoji, in the plural.
22 http://www.landguiden.se, See Allmänt and Politiskt system, 2009-12-07 23 http://www.tanzania.go.tz/administrationf.htlm, 2009-12-08. 24 http://www.tanzania.go.tz/profilef.htlm, 2009-12-08. 25 Ministry of Foreign Affairs of Finland, 1998, p. 47. 26 Wily, 2003, p. 5.
Schedule of Institutions Involved in Village Land Management
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A Brief Historical Background of Tanzania's Land Tenure System Tanzania’s land tenure system is influenced by the local laws of the African communities,
religious laws and the laws of the colonial powers.27 The German and the British colonial
periods, the villagisation after the independence, the decentralisation of power to the local
governments and the liberalisation of the economy in the mid-1980s have all affected today's
land policy and laws.
Tanzania has been colonised by two states, Germany (1885-1919) and Great Britain (1919-
1961). Both these regimes aimed at exploiting raw materials and they therefore needed to
control the land.28 The two colonial authorities conveniently assumed that the indigenous
people had no right to own land and placed all land in the hands of the state.29 However both
of the colonial governments recognised customary rights to some extent but none of the
authorities issued any documents to prove the rights to the land.30
During the German period all land was Crown Land which was vested in the German Empire.
Individual rights to land had to be recognised by the Land Commissions. Only those who
could prove their ownership with documents from the German administration, the local chiefs
or the public authorities had security of title to the land. This requirement was integrated in
the colonial politics which encouraged European settlement.31 Like mentioned above the
German administration did not issue any documents regarding customary rights to land and
therefore it was probably difficult to prove such ownership. The German colonial period
ended with the Versailles Peace Treaty in 1919.32
After the Versailles Peace Treaty the biggest part of German East Africa which included
mainland Tanzania, former Tanganyika, became a British colony. All land in mainland
Tanzania was declared to be public land according to the Land Ordinance passed by the
British in 1923. The British regulation recognised customary rights and after an amendment in
1928, the customary land titles are called deemed rights of occupancy. Titles could also be
given by the Governor as so called granted rights of occupancy. The granted right of
27 Probst, Spittler, 2004, p. 232. 28 Ojalammi, 2006, p. 28. 29 Shivji, 1998, p 2. 30 Ojalammi, 2006, p. 28 f. Note: Secondary source. 31 James, 1971, p. 13 ff. 32 James, 1971, p. 13 ff.
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occupancy was given for a period up to 99 years and this was the title that was given when
alienating land to non-natives. While the granted rights of occupancy were regulated by the
law the deemed rights of occupancy was recognised but not protected by the law.33 The
purpose of giving Tanzania’s natives rights of occupancy was to protect the titles to their land
but this intention failed since their titles were not safeguarded.34 Land alienation to non-
natives increased after a Government Circular was passed in 1953. The Circular claimed that
it was in the interest of the natives to modernise the production methods when using the land
and the statement served to legitimise further land alienations to foreigners.35
Tanzania gained independence in 1961. With the aim of building a socialist society the
government took over the concept of public land from the Land Ordinance of 1923 and all
land fell under the control of the President.36 The new government also kept the common law
system which was introduced during the British administration.37 Following independence
one major reform concerning land was the establishment of settlement schemes. The schemes
made it possible for the Minister to grant a right of occupancy for the purpose of village
settlement. One of the main aims was to concentrate investment and manpower in groups of
farmers living together in compact villages which would also reduce the governments cost of
providing social services.38 However the settlement schemes were not successful partly since
there was a lack of participation of the settlers and the schemes were managed from the top
rather than by the settlers.39
The Arusha Declaration of 1967 was a starting point of a new land tenure system in Tanzania,
known as the post-Arusha villagisation.40 The declaration provided a definition of the
Tanzanian socialism. There were three major principles concerning land that evolved from the
declaration. The principles were: equality, self-reliance and Ujamaa. The principle of equality
aimed at preventing exploitation between individuals and the principle of self-reliance stated
that the development should be based on the effort of the people. The principle of Ujamaa
declared that development must be through Ujamaa villages.41 The basis of Ujamaa villages
33 Shivji, 1998, p. 2ff. 34 James, 1971, p. 19 and 97. 35 Shivji, 1998, p. 4f. 36 Ojalammi, 2006, p.30. 37 Probst, Spittler, 2004, p. 232. 38 James, 1971, p. 23f. 39 United Republic of Tanzania, 1994, p. 41. 40 United Republic of Tanzania, 1994, p. 40. 41 James, 1971, p. 26f.
18
was that land should be owned communally in villages where people were living and working
together. Initially the government encouraged and facilitated the establishment of Ujamaa
villages and the programme initially started in areas affected by problems such as floods and
famine. Bureaucrats on different levels controlled almost all the decisions that were made and
the participation of the villagers was low. In order to improve the democracy and bring more
power to the people the government decentralised some of its functions in 1972. However, the
decentralisation increased the number of bureaucrats in the planning process and the people
were not involved to any large extent in that decentralisation process and it was only in a few
cases that the local needs were responded to.42
The process of villagisation was slow and in 1973 the President declared that it was from
thereon compulsory for the rural population to move into villages and considerable force was
used to implement the declaration. The existing customary land tenure system was completely
ignored and the land rights of the new villages were not legally secured.43 The villagisation,
which was said to promote the public interest, led to resettlement of millions of peasants and
land belonging to customary holders was often alienated by the government to parastatals.44 A
severe economic crisis in Tanzania during the 1970s and the 1980s forced the country to
abandon its socialist-oriented policies.45
From the mid-1980s Tanzania's economy went though a liberalisation process. This change
was partly due to the influence by various global institutions and donor organisations and
included an encouragement of foreign investments and private ownership. Land started to
gain value as marketable goods, the demand for land increased and so did the transfer of land
rights.46 During the liberalisation period more land disputes arose and the insecurity of land
rights was high.47
As a response to the insecurity of land tenure a Presidential Commission of Inquiry into Land
Matters was formed by the government in 1991.48 The aim of the Commission was to review
the existing land laws and policies. During this time different newspapers were reporting that
42 Ministry of Foreign Affairs of Finland, 1998, p. 19. 43 United Republic of Tanzania, 1994, p. 42f. 44 Shivji, 1998, p. 9 f. 45 Ojalammi, 2006, p. 31f. Note: Secondary source. 46 Probst, Spittler, 2004,p. 233 f. 47 Havnevik, Rwebangira, Tivell, 1999, p. 14. 48 Manji, 2006, p. 44.
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investors had taken land without regarding the interests of the local people. According to
Shivji, the chairman of the Commission, the procedures of getting land were claimed to be
slow, bureaucratic and cumbersome.49 One of the recommendations in the report of the
Commission was that the radical title to land should be removed from the President and it was
also recommended that two categories of land, public land and village land, should be
established and administrated by two different institutions.50 The government ignored the
report partly since it did not want to lose its power of having the radical title to land and
instead a National Land Policy was published in 1995.51 The policy was followed by the
passing of the Land Act and the Village Land Act in 1999 which are still in force.
49 Haramata, 1994. 50 Havnevik, Rwebangira, Tivell, 1999, p. 14. 51 Manji, 2006, p. 45.
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Legislation This section gives a short presentation of the policies, acts and regulations that are used in this
thesis. The Land Act and the Village Land Act were based on the National Land Policy from
1995.52 They were passed in 1999 and entered into force in May 2001.53 The Village Land
Act only regulates village land while the Land Act also regulates land outside the villages.54
Additional guidance to the Land Act and the Village Land Act can be found in the Land
Regulations and the Village Land Regulations. The Land Regulations have to be read together
with the Land Act since each regulation is linked to one or more sections in the Land Act.
Some sections of the Land Act were amended with the passing of the Land Amendment Act in
2004. Another act of importance in this thesis is the Land Use Planning Act from 2007 which
provides assistance when deciding about the land use in an area. The Local Government Act
of 1982 stipulates rules on how a village shall be organised and the forms for decision-making
on the local level. Finally Tanzania Investment Act from 1997 is also of relevance in this
thesis. The act regulates local and foreign investment and the functions of TIC, which is the
governmental agency responsible for both national and foreign investments.
52 Havnevik, Rwebangira, Tivell, 1999, p. 7. 53 Ojalammi, 2006, p. 33. 54 Wily, 2003, p. 14.
21
Management and Administration of Village Land As mentioned above there are three different categories of land in Tanzania: general land,
village land and reserved land, Land Act section 4 (4). All land in Tanzania, including village
land, is public and vested in the President as a trustee for and on the behalf of all the citizens,
Land Act section 3 (1) (a) and 4 (1), Village Land Act section 3 (1) (b). General land is
managed by the central government through the Commissioner for Lands and reserved land is
managed by different institutions depending on the purpose for which the land was reserved.55
Reserved land can be a national park for instance. Village land is managed on village level by
the village council, Village Land Act section 8 (2) but institutions on district and national
level are also involved to some extent. The interaction between the authorities regarding
village land matters will be more dealt with below.
Section 12 in the Village Land Act states that village land should be divided into three
categories. The first category is communal village land which is occupied and used or
available for occupation and use on a community and public basis. For example schools and
public markets can be built on communal village land. The communal village land shall not
be made available for individual occupation and use. The second category is land which is
being used or occupied by an individual or family or group of persons under customary law.
The third category is land which may be made available for communal or individual
occupation and use in the future, often referred to as reserved village land.
There are two major institutions in the villages: the Village Assembly and the Village Council.
The Village Assembly consists of all the residents in the village that have reached the age of
eighteen years, Local Government Act section 55. There must be a Village Assembly meeting
at least once in every three months, Local Government Act 103 (2). How often these Village
Assembly meetings are held in practice have varied in the villages we have visited and even
members from the same village have given diverse information concerning how many
meetings are held per year. When visiting Migeregere at the end of October we were told that
the Village Assembly had only met once during the year.56 The Village Assembly is the
supreme authority “on all matters of general policy making in relation to the affairs of the
village”, Local Government Act section 141.
55 Wily, 2003, p. 22f. 56 Zainabu Hasani Kuchu, Migeregere Village, 2009-10-23.
22
As mentioned above the Village Assembly consists of all the adult members of the village.
The Village Assembly meetings are, in theory, open to all the members but when interviewing
the NGOs an issue that was frequently brought up was that women do not attend the Village
Assembly meetings to the same extent as the men. It was also claimed that the women who
attend the meetings are less active and involved in the decisions than the men. For the
example the Director of Operations at MKURABITA, who has been in contact with many
villagers when promoting land use plans, said that in some areas women are allowed to speak
but in some other areas if a woman speaks at the Village Assembly she will be beaten by her
husband when she gets home. However, when asking about the women’s participation level in
the villages we were usually told that both men and women were involved in the decision-
making. For example in Utunge Village a female villager said “When the village had a
meeting about SEKAB the women were allowed to speak and they talked a lot during that
meeting”.57 Even if the women are allowed to speak their mind their participation can be
restrained since they have responsibilities that can interfere with their possibility to attend
meetings. A female Village Assembly member in Liwiti said “I usually do not stay for the
whole meeting since I have to go home and cook food for the family”.58 According to
Magdalena K. Rwebangira, member of TAWLA, women cannot attend the Village Assembly
meetings to the same extent as men because of their social responsibilities and therefore the
timing of the meetings is crucial.59 The level of women’s involvement and participation is
difficult to evaluate since we received contrary information about this matter. However, when
we interviewed villagers we got the impression that the knowledge level of the women
concerning land matters in most cases was considerable lower than the men’s.
The Village Council is elected by the Village Assembly, Local Government Act section 57 (1),
and shall consist of fifteen to twenty-five members, Local Government Act section 56 (1). At
least a quarter of the Village Council members must be women, Local Government Act
section 56 (1) (c). Section 8 (1) in the Village Land Act states that the Village Council is the
manager of all village land. The Village Council shall manage the land as a trustee on behalf
of the villagers and other persons resident in the village, Village Land Act section 8 (2). The
Village Council has the executive power in all the affairs and business in the village and shall
act in the manner which is necessary for the economic and social development of the village,
57 Fanyeje Onguru, Utunge Village, 2009-10-30. 58 Anonymous female member of the Village Assembly, Liwiti Village, 2009-10-23. 59 Magdalena K. Rwebangira, TAWLA, 2009-10-14.
23
Local Government Act section 142 (1) and (2) (a). The secretary of the Village Council is the
Village Executive Officer, Local Government Act 56 (2), who is employed by the District
Council.60 He/she is responsible for keeping a register of village land, Village Land Act
section 21 (1), which does not include any decision-making concerning village land.
The land use plan in a village is an important land management tool for the Village Council.61
The Village Council is the village land use planning authority in each village and the village
land use plan shall be approved by the Village Assembly, Land Use Planning Act section 22
(1) and (2). The village land use plans shall, among other things, secure the orderly and
environmental sustainable development in the village, ensure productive use of village land,
preserve village land resources and be used to review all applications for land in the village to
determine its conformity with the approved plan, Land Use Planning Act section 22 (3). A
land use plan shall, among other things, consist of a report of the physical characteristics and
resources of the land, a description and analysis of the current use of the land and the
community needs in that area, Land Use Planning Act section 27 (1). The land use plan shall
also give proposals relating to the determination or the designation of land for various uses,
Land Use Planning Act section 28 (1) (a). It is here important to note that the plan just
evaluates the needs in the villages for the next 20 years.62 In practice few villages have land
use plans according to a professor at ARDHI University.63 35 out of 98 villages in the Rufiji
District had a land use plan and in the Kilwa District there were land use plans in 21 out of 92
villages.64
The Village Council has the general power to make decisions concerning village land but the
Village Land Act also gives the villagers and the Village Assembly some powers in these
matters. The Village Council has to report to the Village Assembly at every ordinary village
meeting and take the views of the Village Assembly into account when managing and
administrating village land, Village Land Act section 8 (6) (a). The Village Assembly or not
less than one hundred villagers can make a complaint to the District Council concerning the
land management of the Village Council, Village Land Act section 8 (8). Any villager can also
sue the Village Council in respect to its management of village land, Village Land Act section
60 Shivji, Peter, 2003 p. 43. 61 Ojalammi, 2006, p. 34. 62 Gerald K. Mango, NLUPC, 2009-10-13. 63 J.M. Lusugga Kironde, ARDHI University, 2009-10-06. 64 Leo Rwegasira, Rufuji District, 2009-10-30 and Sadiki Boniface, Kilwa District, 2009-10-21.
24
8 (12). In addition there are situations were the approval of the Village Assembly is required.
For instance, as mentioned above, the village land plans have to be approved by the Village
Assembly. Another example is that the Village Council cannot grant a right of occupancy
without the Village Assembly's approval, Village Land Act section 8 (5). There are also rules
stipulated in the Village Land Act section 4 (6) concerning the approval or recommendation of
the Village Assembly when there is a request to transfer village land into general land.
The District Council is the major institution on district level. The Council is an elected body
that consists of members elected from each ward in the district and Members of the
Parliament who represent the district or who have been nominated by the district, Local
Government Act section 35 (1). The function of the District Council regarding village land
matters is to give advice and guidance to the Village Council but it does not have the authority
to make decisions concerning village land. Section 9 (1) in the Village Land Act states that the
advice or guidance can be either on request from the Village Council or of its own motion.
The section further states that the Village Council shall have regard to the given advice or
guidance. This statement makes it clear that the Village Council is not bound by the advice
and guidance. It can however be questioned if the village in practice is independent enough to
neglect the advice from the district. In Nyanda Village for example a Village Assembly
member said that they were forced to agree to give away land and they felt that it did not
matter what they thought since it seemed as if the decision was already made by the District
and by the authorities on national level.65
The District Council can hire technical advisers, such as a District Land Officer.66 The
District Land Officer shall, among other things, assist the Village Council to exercise its rights
under the Village Land Act and shall facilitate dispositions and transactions regarding interest
in land, Village Land Regulations section 78. Section 4 (5) in the Local Government Act
states that the Minister67 shall ensure that the personnel of the local government is trained,
skilled or qualified and that there are adequate financial resources in the local government.
Section 174A in the Local Government Act states that the central government shall facilitate
the exercise of the district authorities’ power, monitor the performance of the local
government authorities and provide necessary technical support to District Councils. In
65 Ramadhan, Nyanda Village, 2009-10-30. 66 Wily, 2003, p. 6. 67 The Minister responsible for local government, Local Government Act section 3 (1).
25
t purpose.68
pter.
practice it seems to be difficult for the Land Officer to fulfil his/her duties due to the shortage
of resources on district level. For instance, the District Land Officer in Kilwa told us that he
has not even visited all the villages in the district yet since there is not enough money set
aside for tha
The Central Government has more responsibilities than providing resources to the districts
and some of these responsibilities can be found in the Village Land Act and The Land Act. As
already mentioned all land is vested in the President. Section 4 (1) in the Village Land act
states that the President can transfer village land to general or reserved land if it is in the
public interest. Furthermore it is stated in Village Land Act section 4 (6) (b) that the
Minister69 is the one to refuse or approve a transfer of village land into reserved or general
land if the area is greater than 250 hectares. However, in practice, land is not transferred
without the approval of the Village Assembly.70 The transfer process will be more dealt with
in the following cha
The Commissioner for Lands is also involved in village land matters on national level. The
Commissioner is a person who is appointed by the President, Village Land Act section 2 and
Land Act section 9. The Commissioner for Lands has several functions according to the
Village Land Act. For example it is stated in the Village Land Act section 8 (7) that the
Commissioner for Lands may advise the Village Council on the management of village land.
One can therefore claim that the Commissioner supervises the management of village land.71
Another example is found in Village Land Act section 8 (10) that stipulates that the
Commissioner can take action when a Village Council “has taken or omitted to take any
action on village land which is contrary to law”.
68 Sadiki Boniface, Kilwa District, 2009-10-21. 69 The Minister for the time being responsible for land, Village Land Act section 2. 70 David Mushendwa, Commissioner for Lands, 2009-11-10. 71 Probst, Spittler, 2004, p. 236.
26
Allocation of Village Land to Foreign Investors Right to village land can only be obtained with a Customary Right of Occupancy.72 A granted
right of occupancy, which will be more explained below, and a customary right of occupancy
has the same legal status. The customary right of occupancy is governed by customary law
and the duration of the right can be indefinite, Village Land Act section 18. A foreign investor
cannot acquire Customary Rights of Occupancy since this right is only given to citizens,
Village Land Act section 22. Foreign investors cannot therefore get direct access to village
land but they have the possibility to get indirect access to village land by being a member of a
NVO where the majority of the shareholders are citizens, 17 (1) (c) and 17 (5). Our
experience from the study is that very few foreign investors get access to village land through
a membership of an NVO. If the foreign investor wants direct access to village land the area
has to be transferred into general land first. This is the process that we have encountered in
our study and in these cases the transferred land has been communal village land. This chapter
will therefore focus on the transfer of communal village land into general land and on how a
foreign investor can obtain a right in the transferred land.
A foreign investor that wants to get access to land has to start at TIC which is the agency that
controls the investments in the nation.73 The agency was established with the passing of
Tanzania Investment Act in 1997 and the act states that the centre shall be a one-stop centre
for investors, Tanzania Investment Act section 4 and 5. Firstly the investor has to apply for a
Certificate of Incentives.74 The application for such a certificate shall be sent to TIC and shall,
for example, include information about the management of the project, the nature and the
location of the proposed business and the financing of the investment, Tanzania Investment
Act section 17 (1) and (2). In addition the investor has to provide evidence that sufficient
capital is available for the investment, Tanzania Investment Act section 17 (2). If the investor
is granted a Certificate of Incentives the role of TIC is thereafter to assist the investor in
different ways. TIC shall among other things encourage, facilitate and promote investment in
the nation, Tanzania Investment Act section 5. That TIC role is to assist the investor and not
the villagers is clear in Tanzania Investment Act and that was also confirmed when
interviewing two civil servants at TIC. For instance we were told that TIC’s job is to make
72 No other rights are recognised in the Village Land Act. 73 Wily, 2003, p. 120. 74 Israel C. Simba, ARDHI University, 2009-10-07.
27
sure that the investors are satisfied and that Tanzania receives a lot of investors.75
In theory there are two procedures that can follow after the granting of the certificate. The
first procedure involving fewer steps is when TIC has already set aside land for investment in
the so called Land Bank. This land can be former village land but in that case the procedure of
transferring the land into general land has already been done before the investors come to
TIC. This procedure, however, is not in use in practice yet since TIC has not managed to
acquire any land for the Land Bank so far. The plan for the future is that foreign investors
shall only be allocated land from the Land Bank.76 The second procedure and the one used in
practice involves a long process of transferring village land into general land, which will be
described below.
Section 4 in the Village Land Act sets out the procedure of transferring village land into
general land. To start with village land can be transferred into general land by the President
providing that the transfer is in the public interest, Village Land Act section 4 (1). The same
section states that the President can direct the Minister77 to carry out this procedure. Section 4
(2) states that “public interest shall include investments, of national interest”. Therefore
village land can legally be transferred for investment purposes. It can be questioned how the
evaluation is made when deciding if an investment is of national interest. An issue that has
been brought up frequently in the interviews is that many of the foreign investments have not
been beneficial for the nation. For instance the opinion of the Executive Director at LEAT was
that the current foreign investments were not benefiting the nation.78 Even one of the civil
servants at TIC admitted that the evaluation of the foreign investors have not been made
carefully enough in all cases.79
In order to get access to village land the investor is required to contact the district where the
land is situated. At this stage the district evaluates the proposed project and directs the
investor to the village/villages concerned.80 In theory it is also at this stage that the land
needed for investment is identified but in practice this is sometimes done at an earlier stage.
In the two cases we have studied the investors identified the land in different ways. SEKAB
75 Anonymous civil servant (1), TIC, 2009-10-02. 76 Anonymous civil servant (1), TIC, 2009-10-02. 77 The Minister responsible for land. 78 Emmanuel Massawe, LEAT, 2009-10-09. 79 Anonymous civil servant (2), TIC, 2009-10-02. 80 Sadiki Boniface, Kilwa District, 2009-10-21 and Leo Rwegasira, Rufuji District, 2009-10-30.
28
told us that they had already designated some areas in Rufiji before contacting TIC and the
district and none of the authorities were therefore involved in the identification of land.81
BioShape, on the other hand, was directed by TIC to the Lindi Region, the region where the
Kilwa District is situated, and there they were directed to go the Kilwa District which in turn
suggested some villages.82 When identifying the land an important issue is the current use of
the land. If the land can be considered as used or unused is often debated and in our study we
found that the opinions regarding this often differ. The land areas identified by both SEKAB
and BioShape were not occupied or cultivated but this does not mean that all the land was
unused since land is often used for many purposes in Tanzania for example to fetch firewood.
Also future generations’ need for land has to be considered since land will be needed in the
future for Tanzania’s growing population.83 When interviewing NGOs the issue of food
security was often brought up and many had the opinion that the identification of village land
for investment purposes had to be made carefully since foreign investors will not safeguard
the population’s need for food. The village land use plan can provide guidance concerning the
current land use and future needs when identifying the land.
Another part of the transfer process is that the Minster shall publish a notice in the Gazette84
about the proposed transfer which shall be sent to the Village Council concerned, Village
Land Act section 4 (3). The same section states that the notice shall specify the location of the
land that is proposed to be transferred, the extent and boundaries of this land and briefly
provide the reasons for the proposal. The notice shall also specify the date of the proposed
transfer, which cannot be less than 90 days from the date of publication. This notice can
provide useful information if it is made clear that the purpose of the notice is to provide
information about the transfer proposed. We have found that many villagers feel that they
have no say in the process of transferring land and that the decision has already been made at
a higher level. Therefore there is a risk that the notice will be understood by the villagers as an
order from above to approve the transfer if the notice is not clear.
In addition to the mentioned notice in the Gazette, information on the transfer can also be
provided by the central government and by the investor as stated in Village Land Act section 4
81 Anders Bergfors, SEKAB, 2009-10-28. 82 Pius Cheche, BioShape, 2009-10-24. 83 Eugene H. Silayo, ARDHI University, 2009-09-29. 84 A official newspaper published by a particular organization containing important information about decisions
that have been made and people who have been employed, Oxford Advanced Learner’s Dictionary.
29
(7). The Commissioner for Lands or an authorized officer has the duty to explain the reasons
for the proposed transfer and answer questions during a Village Assembly or a Village
Council meeting. A foreign investor can also, after invitation, attend such a meeting to answer
questions from the Assembly or the Council. When visiting the different villages we have,
however, experienced that there is a lot of important information that has not been given from
either the government or the investors. An issue that could for example have been discussed
during these meetings is if the processing of the investors product will take place in the
village or elsewhere. This is an important issue since the location of the processing affects the
number of work opportunities that will come out of the investment. Both SEKAB and
BioShape had visited the villages concerned but our experience is that very few people in
those villages know where the product will be processed. In addition there also seems to be
some problems with how the investors act when meeting with the villagers. The Executive
Director at HAKIARDHI informed us that SEKAB had provided catering in some of the
villages in the Rufiji District when discussing about the transfer of land and according to him
this was undue influence.85
The next step concerns the approval of the transfer. An area less than 250 hectares cannot be
transferred without the approval of the Village Assembly, Village land Act section 4 (6) (a).
The same section states that the Assembly shall consider the recommendations of the Village
Council and any representations made by the District Council. When the area is greater than
250 hectares it is instead the Minister that approves or refuses the transfer and surprisingly the
Village Assembly can only give recommendations for the Minister to consider, Village Land
Act section 4 (6) (b). According to the same section the recommendation is channelled
through the Village and the District Councils. The section further states that any
representation made by the Village and District Councils shall be considered by the Minster.
In theory, the Village Assembly can only give its recommendation when the area is greater
than 250 hectares but in practice, as mentioned above, no land is transferred without the
approval of the Assembly according to a civil servant at the Commissioner for Lands.86 The
statement mentioned in the Village Land Act can cause confusion even if the approval of the
Village Assembly is always required in practice. Many villagers that we have met had been
told that it did not matter if they approved or not when the area was over a certain size. For
example, a member of the Village Assembly in Migeregere Village said “We were told that
85 Yfred E. Myenzi, HAKIARDHI, 2009-10-05. 86 David Mushendwa, Commissioner for Lands, 2009-11-10.
30
the land would be allocated even if we did not agree because the area exceeded the amount of
land that the village could give away and therefore I unwillingly approved”.87
We have also found that the villagers often do not have enough knowledge to make informed
decisions when approving to transfer the land and it can therefore be questioned what value
the approval has in practice. Many villagers do not even know that the village land is being
transferred into general land and that they will lose the right to that land. For instance a
member of the Village Council in Migeregere Village said that they had leased out their land
to BioShape for 33 years and that the land would go back to the village after the expiry of the
lease.88 Similar statements were made by Village Assembly members in several villages. In
addition many villagers do not seem to know how big land areas the agreement with the
investor concerns. For example a member of the Village Assembly in Liwiti Village said that
she had no idea of how much land they had agreed to give away.89 The district has, as already
mentioned, a responsibility to give advice and support to the villages but in almost all the
villages we visited the villagers told us that they had no knowledge about their land rights and
that they had not received any help from the district.
Another issue that can be questioned is if it the Village Assembly is able to make independent
decisions on giving away land. Our experience from the study is that authorities at higher
levels often influence the villagers. We were often told in the villages that the leaders had
their own interests regarding the investment and in some cases villagers claimed that the
leaders had been bribed. Corruption is widespread in Tanzania and there is a risk that the
decisions are influenced in an undue manner.90 In some villages there were members of the
Village Assembly who claimed that the Village Council had already made the decision and
that they had to approve. For instance in Mavuji Village this was implied by both a member if
the Village Council and a member of the Village Assembly. The member of the Village
Council said “Initially the people in the village did not want to give away their land to
BioShape while the Village Council thought it was a good idea but finally after discussing
they all agreed to give away the land”.91 The member of the Village Assembly told us that the
people in the village were forced by the village leaders to approve and that the decision was
87 Zainabu Hasani Kuchu, Migeregere Village, 2009-10-23. 88 Mfaume Rashidi Rehani, Migeregere Village, 2009-10-23. 89 Anonymous female member of Village Assembly, Liwiti Village, 2009-10-23. 90 See, http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table, 2009-12-28. 91 Pili B. Ngwena, Mavuji Village, 2009-10-22.
31
already taken by the Village Council.92 A member of the Village Assembly in Migeregere
Village had a similar opinion. He said that the Village Assembly meetings in general are not
conducted in a good way and that the meetings are just a formality where the villagers are
forced to approve of what the Village Council has already decided.93
In our study we have also experienced that the villagers are sometimes influenced by the
district administration. The Executive Director at HAKIARDHI showed us a letter sent from
the District Council in Rufiji to Nyamwage Village which he considered to be a top-down
order to the villagers to give away land to an investor. It was written in the letter that the
government had already assured an investor that 5000 hectares of land were available for the
investor in the village and that the village was required to allocate this land to the investor.94
In addition the District Land Officer in Kilwa told us “sometimes the villagers are afraid of
giving away their land to an investor and it is then my responsibility to ensure them that their
rights will be looked after and that nothing bad will happen if they agree to give away the
land”.95 The influence can also come from the national level. This was for instance indicated
when we interviewed the Member of Parliament from the Rufiji District who was very
positive about the foreign investments in the area. He said “I have a big influence on the
villagers in Rufiji but I influence them in a good way”.96
Even with the approval of the Village Assembly village land cannot be transferred unless a
village land use plan exists. This requirement is not spelled out in the law but in a Presidential
Order from 2007.97 This order fills an essential function in securing that sufficient land is left
for the villagers’ current and future needs after the transfer of the village land. However the
village land use plan only fills this function if the plan is approved by the Village Assembly in
accordance with the procedure set out in the law and provided that the villagers have enough
knowledge to make an informed decision about the land use in the village. As mentioned
above we have encountered a lack of knowledge concerning land management in the villages
which all had land use plans. It can therefore be questioned to which extent the villagers are
involved in the making of the plan.
92 Fatima Abdala Mpate, Mavuji Village, 2009-10-22. 93 Anonymous male member of Village Assembly. Migeregere Village, 2009-10-23. 94 Yfred E. Myenzi, HAKIARDHI, 2009-10-05. 95 Sadiki Boniface, Kilwa District, 2009-10-21. 96 Idris Ali Mtulia, Parlimaent, 2009-10-12. 97 Gerald K. Mango, NLUPC, 2009-10-13 and David Mushendwa, Commissioner for Lands, 2009-11-10.
32
Another issue that needs to be handled is the question of compensation. Section 4 (8) in the
Village Land Act stipulates that village land shall not be transferred until there is an
agreement between the Village Council and Commissioner for Lands about the type, amount,
method and time when the compensation should be paid. An investor who has been granted a
right of occupancy to the transferred land can be directed by the President to pay the above
mentioned compensation, Village Land Act section 4 (11). It can however be questioned if the
Commissioner is always involved in the compensation in practice since, as will be more dealt
with below, we have found that the investors usually make the agreement regarding
compensation directly with the villagers without going through the procedure set out in the
law.
When communal village land is transferred the Village Council can claim compensation on
behalf of the villagers, Village Land Regulations section 8. The compensation shall include
the market value of the land and the unexhausted improvements which shall be assessed by a
qualified valuer98, Village Land Regulations section 9 and 11. Normally the compensation
shall also include disturbance allowance, transport allowance, accommodation allowance and
loss of profits, Village Land Regulations section 13. However when the land is unoccupied
the compensation only covers the value of the land and the unexhausted improvements, see
Village Land Regulations section 18. The compensation for the transferred land is given once,
which is a weakness according to many people that we interviewed. For example, a legal
officer at the School of Law at the University of Dar es Salaam said “The compensation
should be paid annually. You can not asses the value of the land today and think that it will
have the same value later because land gains value almost every day”.99
Our experience when visiting the different villages is, as mentioned before, that the level of
knowledge regarding land rights is low and it is therefore unfortunate that the villagers right
to compensation has to be claimed and that it is not disbursed automatically. However, the
regulation provides that the village is entitled to assistance by the authorised officer100 with
this procedure, Village Land Regulation section 22. This assistance can hopefully secure the
villagers’ right to compensation. Even if there are regulations concerning compensation with
the aim to safeguard the right of the villagers there is still a risk that the amount of
98 A valuer with a professional or academic qualification in land valuation or in a subject that includes land valuation, see Village Land Regulations section 2 and Land Act section 2.
99 Daniel Lema, University of Dar es Salaam, 2009-10-06. 100 District Land Officer, see Village Land Regulations section 2.
33
compensation is not controlled, as the majority of the investors, in practice, pay the
compensation straight to the villages without going though the prescribed procedure.101 This
means that there is no guarantee that the value of the land is assessed by a qualified valuer, or
that the villagers will get any assistance with the issue of compensation. This can be very
problematic and our experience is that investors often make a lot of promises regarding for
example social services and work opportunities. We have found that the villagers are often
desperate to get what the investor promises and therefore there is a risk that the villagers
accept less compensation than they could be entitled to. For example a villager in Nyanda
Village said “We were very happy at first when we heard that an investor wanted to invest in
our village since we were thinking that we would get employed but now we are very
disappointed”.102 A similar statement was made by a Village Council member in Liwiti
Village who told us that he approved to give away the land because BioShape promised work
opportunities and that he was not happy at all since no one in the village had been
employed.103
According to a civil servant at the Commissioner for Lands no promises are enforceable
unless they are incorporated in the Certificate of Right of Occupancy which is something he
has never experienced.104 When we interviewed the Village Chairman in Nyamwage village
he claimed that the investor, SEKAB, had promised to build a school and a hospital, provide
water services and to give loans to the village.105 However, when we meet with SEKAB’s
managing director he claimed that they had not promised to provide any social services in the
villages.106 This shows that the involved parties can have completely different versions of
what has been agreed upon and in cases like this, when the promises are not incorporated in
the certificate, the claimed promises cannot be enforced. This means that the villagers can end
up with low compensation and unfulfilled promises.
How much of the compensation that goes straight to the villages is an issue of interest. When
we visited the two districts it was only the villages in the Kilwa District that had received any
compensation since the process of allocating the land to SEKAB in Rufiji District had not yet
reached far enough for the compensation to be disbursed. The examples regarding the division
101 David Mushendwa, Commissioner for Lands, 2009-10-09. 102 Ramadam, Nyanda Village, 2009-10-30. 103 Anonymous male member of Village Council, Liwiti Village 2009-10-23. 104 David Mushendwa, Commissioner for Lands, 2009-10-09. 105 Ibrahim Zaid Mboweto, Nyamwage Village, 2009-10-30. 106 Anders Bergfors, SEKAB, 2009-10-28.
34
and use of the compensation will therefore only be from Kilwa. The Village Executive Officer
in Mavuji village informed us that the compensation was 222 million TSH and that the village
only got 40% of the amount from Bioshape while the district received the remaining 60%.107
This was also confirmed by the Assistant Director at BioShape who told us that the District
instructed them to make such a division of the compensation. His opinion was that the
division was not fair and that the villages should get at least 60% of the compensation.108 In
this case the division was decided at the district level.109 When visiting the different villages
many people complained that they only received 40% of the compensation.
Another relevant issue is how the compensation is used in the villages and we have found that
the villagers have a lot of different opinions about the use. The Village Executive Officer in
Mavuji Village told us that the compensation had for example been used to buy a truck and to
construct a village market, a use that he was satisfied with.110 A Village Assembly member on
the other hand was not satisfied at all with how the compensation had been used. She said
“We wanted all the villagers to have a share of the money but the village leaders persuaded us
to agree on buying a truck. The truck breaks down all the time and we do not benefit from it.
We were also persuaded to agree on building a village market. The quality of the village
market is very poor and we have been told not to use it since it might fall apart. I also think
the money has been used for building an office for the Village Council”.111
As mentioned above the transfer of the land is done by the President and this is the last step of
transferring the land into general land. The land then becomes general land and a foreign
investor can get a right to this land in three different ways. They can either get a right of
occupancy, a derivative right or an interest in land through a joint venture with a citizen, Land
Amendment Act section 3. The section also stipulates that these rights can only be obtained
for investment purposes. Right of occupancy is “a title to the use and occupation of land”,
Land Act section 2. This definition includes both customary right of occupancy and granted
right of occupancy. A foreign investor cannot obtain a customary right of occupancy, see Land
Act section 2.112 A derivative right is “a right to occupy and use land created out of a right of
occupancy”, Land Act Section 3. The option of obtaining an interest in land through joint
107 Saidi A. Njenga, Mavuji Village, 2009-10-22. 108 Pius Cheche, Bioshape, 2009-10-24. 109 Sadiki Boniface, Kilwa District, 2009-10-21. 110 Saidi A. Njenga, Mavuji Village, 2009-10-22. 111 Fatima Abdala Mpate, Mavuji Village, 2009-10-22. 112 See the definitions of right of occupancy, customary right of occupancy and deemed right of occupancy.
35
ventures does not seem to be common. According to a civil servant at TIC they encourage
joint ventures as much as possible but the problem is that foreign investors are not so inclined
to pair up with local investors.113 Foreign actors that do not wish to be part of a joint venture
with a citizen can therefore only get a granted right of occupancy or a derivative right to
general land. The granted right of occupancy and the derivative right are administered by two
different government institutions. The right of occupancy is administered by the
Commissioners for Lands, Land Act section 26, while the derivative right is administered by
TIC, Land Act section 20 (2). The reason for that both derivative rights and right of
occupancy are given to foreign investors seems to be unclear at the moment but if the system
with the land bank is put in use in the future foreign investors will probably only be granted a
derivative right.
A granted right of occupancy is granted by the President for a period up to but not exceeding
99 years, Land Act section 22 (1). The section further states that this right can be the subject
of dispositions and that the holder of the right is entitled to compensation in the case of a
compulsory acquisition by the state. Land Act section 25 sets out the application procedure
and states that the application for a granted right of occupancy shall be sent to the
Commissioner for Lands and that the application of a non-citizen shall include a Certificate of
Approval granted by TIC. A Certificate of Approval has the same meaning as a Certificate of
Incentives.114 When it has been determined that a right of occupancy shall be granted the
Commissioner for Lands shall make a Letter of Offer to the applicant which shall include all
the terms and conditions of the right, Land Act section 27. The letter of offer then has to be
accepted by the applicant before the certificate of occupancy is issued by the President, Land
Act section 28 and 29. The holder of the right of occupancy may be required by the Minister
to pay a premium and the holder shall also pay an annual rent for the right of occupancy to the
Commissioner for Lands, Land Act section 31 and 33. It is here important to note that none of
these payments go to the villages that held the right to the land before the transfer.
Section 34 (1) in the Land Act stipulates that conditions of a right of occupancy can be
prescribed. When, for example, the right of occupancy is granted for agricultural purposes the
occupier has to cultivate a certain area of the land each year, Village Land Regulations section
7 made under sections 34 and 179 in the Land Act. As already discussed above, it can be
113 Anonymous civil servant (2), TIC, 2009-10-02. 114 Anonymous civil servant (2), TIC, 2009-11-12.
36
problematic when a foreign investor promises to provide for example social services if these
promises cannot be enforced. In order for the promises to be enforceable they have to be
included in the certificate as a condition for the right of occupancy. A breach of any of the
conditions in the certificate can eventually lead to the right of occupancy being revoked by
the President, Land Act section 45. This means that the investor could even lose the right to
the land if not fulfilling its promises to the villagers if they were included as conditions in the
certificate. It is unfortunate that this is rarely or never the case in practice since that would put
more pressure on the investors to follow what has been agreed upon with the villagers.
As mentioned above a derivative right is a right to occupy and use land created out of a right
of occupancy. A foreign investor can get a derivative right from TIC, Land Act section 20.
TIC is then the primary holder of the right of occupancy and the agency in turn grants a
derivative right to the investor. All the conditions concerning the right of occupancy are
directly transferred from TIC to the investor.115 An investor cannot get a derivative right to the
land for longer than 99 years since the right is created out of a right of occupancy. The land
that has been held by a foreign investor with a right of occupancy or a derivative right shall at
the expiry, termination or extinction of this right be vested in TIC or any other authority that
the Minister has prescribed in the Gazette, Land Act section 20 (5). This means that the
villagers will not be involved in the process of reallocating the land even if the decision
probably will affect them.
Land Amendment Act section 3 clearly states that a foreign investor can obtain a right of
occupancy or a derivative right, but it is unclear what determines which of the two rights a
foreign investor gets. When interviewing a civil servant at TIC we were told that the investor
will get a derivative right if the land is allocated through TIC and that the investor will get a
right of occupancy if the land is allocated through the Commissioner for Lands.116 There
seems to be a lot of confusion about which of the two rights should be given to foreign
investors. According to the director at BioShape they have been informed by the government
that they can only obtain a derivative right since BioShape is a foreign investor.117 This shows
that there is still a lot of work to be done concerning the implementations and the knowledge
level of the land laws from 1999 and having this in mind it is not a surprise that there is also a
115 Anonymous civil servant (2), TIC, 2009-11-12. 116 Anonymous civil servant (2), TIC, 2009-11-12. 117 Willfred Onyony, BioShape, 2009-11-12.
lack of knowledge about land issues at the village level.
In summary the procedure starts at TIC where the investors apply for a Certificate of
Incentives. Since there is no Land Bank in practice the next step is to transfer the land from
village land to general land. The transfer process itself includes several steps where
authorities at the national, district and village levels are involved. After the land has been
transferred the investor can obtain a right to the land in three ways; a granted right of
occupancy, a derivative right or as an interest through joint ventures with a citizen.
Schedule of How Foreign Investors Can Get Access to Village Land
37
38
Tanzania’s Constitution and the ACHPR In order to analyse the process conformity with the right stipulated in Tanzania’s Constitution
and the ACHPR there is a need to present the relevant articles in the two regulations. The
relevant articles in Tanzania’s Constitution and in the ACHPR will be presented below.
Tanzania’s Constitution was passed in 1977 and stipulates the basic rights of all persons in the
United Republic of Tanzania, which, as mentioned above, includes both Mainland Tanzania
and Zanzibar. The ACHPR from 1981 consists of human and peoples’ rights which have been
recognised by the member parties. The charter has been ratified by 53 African states including
Tanzania.118 As the name of the charter implies it contains both individual rights and group-
rights. There are a number of regulations both in Tanzania’s Constitution and in the ACHPR
that are relevant when analysing to which extent the process conforms with the rights stated in
the two regulations. Similar types of rights can sometimes be found in both regulations.
Tanzania’s Constitution
The first regulation of importance in Tanzania’s Constitution is article 12, which states that all
human beings are equal. The right to life, which is also relevant, is secured through article 14
which stipulates that “Every person has the right to live and to the protection of his life by the
society in accordance with the law”. Article 21, which needs to be studied together with
articles 145 and 146, states that the citizens of Tanzania have the freedom to participate in
public affairs either directly or through representatives. The article further states that “Every
citizen has the right and the freedom to participate fully in the process leading to the decision
on matters affecting him, his well-being or the nation”. There shall be a local government
authority in every village according to article 145 and article 146 states that the purpose of
having local authorities is to transfer authority to the people. Another relevant regulation in
Tanzania’s constitution is article 24 that stipulates the right to own property. According to
article 24 (1) every person is entitled to own property and the property held in accordance
with the law shall be protected. It is further stated in article 24 (2) that “it shall be unlawful
for any person to be deprived of his property for the purpose of nationalization or any other
purpose without the authority of law which makes provisions for fair and adequate
118http://www.africaunion.org/root/au/Documents/Treaties/List/African%20Charter%20on%20Human%20and%
20Peoples%20Rights.pdf, 2009-12-20.
39
compensation”. Lastly article 29 states that all people have the right to enjoy the benefits
accruing from the fulfilment of the rights stipulated under article 12 to 28.
ACHPR
Article 3 in the ACHPR is a regulation of relevance since it stipulates that all people are
equal. The article states that all individuals shall be equal before the law and that they are
entitled to equal protection of the law. Article 4 is also of importance and stipulates that
“Every human being shall be entitled to respect for his life and the integrity of his person”.
Another right of relevance is the right to participation which is secured through article 13 (1).
It is provided in the article that “Every citizen shall have the right to participate in the
government of his country, either directly or through freely chosen representatives in
accordance with the provisions of the law”. The right to property is also relevant in this study
and is secured in article 14. The article states that the right “may only be encroached upon in
the interest of public need or in the general interest of the community and in accordance with
the provisions of appropriate laws.” Article 21 (1) contains an important statement that “All
peoples shall freely dispose of their wealth and natural resources”. The article also stipulates
that the right shall be exercised exclusively in the interest of the people. It is further stated in
article 21 (5) that all forms of foreign exploitation shall be eliminated so that the people are
able to fully benefit from the advantages derived from their national resources. The last
regulation of interest is article 22, which recognises all peoples’ right to their economic, social
and cultural development.
40
The Process Conformity with Tanzania’s Constitution and the ACHPR
Right to Equality
There are statements in both Tanzania’s Constitution and the ACHPR about equality. The
main problem regarding equality that we have encountered in our study is women’s
involvement and participation. It can be questioned if women have the same possibility to be
active at the Village Assembly meetings as the men and if they are involved in decision-
making concerning land matters to the same extent as men.
The opinion of many representatives from NGOs that we interviewed was that the question of
women participation and involvement was a problem area while the interviewed villagers did
not think that the women were less involved. However some of the interviewed women told
us that they sometimes did not attend the Village Assembly meetings or that they could not
attend the whole meetings since they were occupied with other issues such as cooking for the
family. One indication that women are not participating and involved to the same extent as
men is that the women’s knowledge level concerning land matters is not as high as the men’s.
We cannot clearly say that the process does not conform with the regulations regarding
equality but there are indications that this is a problem area that needs to be looked into in
Tanzania.
Right to Life
The right to life is also safeguarded in both of the Tanzania’s Constitution and the ACHPR. If
right to life should be interpreted as the mere right to live or if it the term should be
interpreted in a wider sense can be discussed. In the doctrine studied we have found that the
right to life is often considered to have a wider meaning including the right to basic needs
such as food and shelter.119 When studying the right to life in the constitution one can find
guidance in article 29. The article implies that the right to life should be given a wider
interpretation since the right to enjoy the benefits of life is included. The regulations
concerning right to life can be of relevance when analysing the process if the term is given a
wider meaning.
The representatives for NGOs that we interviewed were often concerned about the food
119 See Shivji, Kapinga, 1998, p. 38 and Evans, Murray, 2008, p. 184.
41
security in the nation and in the villages since their opinion was that the foreign investors
would not safeguard access to food. According to many people that we interviewed this
matter did not only concern the villagers but the nation as a whole since the urban population
is dependent of the food produced in the rural areas. Since SEKAB and BioShape are in the
process of getting access to land that currently is neither occupied nor cultivated our opinion
is that the food security is not directly threatened at the moment in the villages visited.
However, the population of Tanzania is growing and it is difficult to make an assessment
today about the future needs for land to cultivate food on.
The question of food security is also linked to the issue whether and how the land is used. We
have found in our interviews that people have different opinions whether Tanzania has a lot of
unused land and whether there will be enough land for food cultivation if large areas of land
are allocated to foreign investors. Whether there is a lot of unused land or not is difficult to
establish and it is therefore problematic that the villagers lose their right to the land for good
when it is transferred. The above-mentioned Presidential order which states that no village
land shall be transferred if the village does not have a village land use plan can be a way of
safeguarding the access to food. In order for a land use plan to have this function it has to
include an adequate assessment of the villagers needs for land. In general villagers are eager
to get investments and it is important that the village land use plans are not made right before
the transfer, as there is then a risk that the land use plans are adjusted to make the investment
possible rather than assessing the villagers’ future needs for food. One weakness of the land
use plans is that the plans only evaluate the use of the land for the following 20 years. This is
especially problematic since villagers, as already mentioned, lose the land for good.
Right to Participation
The right to participation is secured in both Tanzania’s Constitution and ACHPR. Since the
Village Assembly has to approve the transfer of village land to general land one can argue that
the people concerned participate in the process. In addition the Village Land Act secures the
villagers right to participate since they elect the members of the Village Council, which is the
authority that manages village land. In practice the right to participation has little value if one
cannot participate in a meaningful way.
When carrying out our study we found that there were some limitations in the Village
Assembly members’ right to participate. One of the weaknesses concerns women’s
42
participation, which is a matter that has been discussed above. Another weakness is linked to
the knowledge level in the villages regarding land matters and land rights. The statements
about the Gazette and the assistance from the Commissioner for Lands or an authorised
officer in the Village Land Act are examples of how the legislator has tried to make sure that
the villagers receive information about the transfer. We have, however, experienced that many
of the villagers do not have enough knowledge to make informed decisions about transferring
the land. When conducting the interviews we found that in general the villagers did not even
know that the land would be transferred and that they would lose the right to the land for
good. Often there was also confusion about the size of the land that was going to be allocated
to the foreign investor and many villagers told us that they did not know how much land the
agreement with the investor concerned. If the villagers cannot make informed decisions one
can question to what extent they participate in practice in the decision-making. It is obvious
that the value of the villagers’ participation is low when they do not know what they approve
of and the consequences of the approval. It is therefore unfortunate that many villagers have
not received any education about their land rights from the district.
Another limitation concerning participation that we have encountered is that the Village
Assembly members are not always independent enough to make their own decisions as their
decisions are often influenced by authorities at higher levels. We have frequently been told by
Village Assembly members that they were forced or dragged to approve the allocation of land
and that the decision was already made at a higher level. We have also seen that there is a risk
that these decisions are influenced by corrupt leaders. The villagers had in some cases been
informed that the land would be allocated even if they did not approve since the area
exceeded the amount of land that the village could allocate. This issue is also linked to the
knowledge level, which has been discussed above, since it is easier to influence people that
are not aware of their rights. It can also be linked to the history of Tanzania where the
decisions concerning land have mostly come from the top. It is here important to note that
both the district and the national government have financial interests in allocating land to
foreign investors. The district can get part of the compensation and the government can be
provided with several income sources from the investment such as the premium and the rent
connected with the granted right of occupancy. For those reasons there can be a risk that the
advice given by these authorities are not always beneficial to the villagers.
Since there is a lack of knowledge in the villages concerning land rights there is a need for
43
assistance and advice from authorities at higher levels. It is, however, important that the
villagers are not prevented from making independent decisions and therefore the advice have
to be carried out carefully so it is not understood as orders form above. Several of the
interviewees were of the opinion that the government needs to be involved to protect the
villagers’ rights but that the involvement today is mainly to safeguard other interests.120 The
assistance should, in our opinion, be focused on educating the villagers about their land rights
in order to strengthen their possibilities to participate and should not serve as a tool for
influencing the villagers.
We have also found that villagers often have not received enough information from the
investor about how the investment will be carried out and how the investment will affect
them. In many of the villages that we visited people did not know the basic facts about the
investment. For example they did not know where the product would be processed. There is a
risk that the villagers are not provided with enough information to be able to make informed
decisions and it can therefore be questioned how much the participation is worth in practice.
In addition there is a risk that the villagers are influenced not only by the higher authorities
but also by the investors. It is here important to note that the villagers and the investor are not
two equal parties. The investor is the one with economic recourses and they have the support
from TIC. The villagers, on the other hand, are in a weaker position since they usually do not
have the same economic recourses as the investor and no authority which solely looks after
their interests.
Another weakness concerning participation is linked to how the compensation is used in the
village. We have experienced that many of the Village Assembly members feel that they had
no possibility to participate in the decision concerning the use of the compensation. Some
villagers told us that they were forced or persuaded to agree to the village leaders’ proposition
on how to use the compensation. Since the question of compensation concerns the villagers to
a great extent it is very unfortunate that all the members of the Village Assembly do not seem
to participate.
It can be questioned whether the Village Assembly members have the right to participate in
the process but that does not mean that the process does not conform with the regulations
120 For example Daniel Lema, University of Dar es Salaam, 2009-10-06 and Godfrey, Mpandikiai, LHRC, 2009-
09-30.
44
regarding participation. The participation can be indirect through elected representatives and
there is no statement in either the constitution or the charter that the local communities shall
participate directly in all decision-making. However, Tanzania’s Constitution stipulates that
the purpose of having local authorities is to transfer the authority to the people. Since the
process, as discussed above, has weaknesses concerning participation it can be questioned if
the process conforms with this requirement.
Right to Own Property
The right own property is secured in both Tanzania’s Constitution and the ACHPR. In
Tanzania’s Constitution it is stated that every person is entitled to own property and the
regulation also deals with allowed forms of expropriation. Even if one can argue that the
participation level of the villagers is low when village land is transferred into general land the
process can hardly be considered as a form of expropriation. Since the process cannot be
considered as a form of expropriation we will only analyse the conformity of the process with
the first part of the article in the constitution that states that people are entitled to own
property. The right to own property stated in the ACHPR also regulates expropriation but the
charter is not limited to regulate interference by the state. The right also includes protection
against interference from third parties.121
It can be discussed if a customary right of occupancy, which is the right that the villagers have
to the land, can be considered to be a right of property that is protected by the two regulations.
According to the Court of Appeal in Tanzania customary rights to land are real properties that
are protected in the constitution.122 The term property in the charter has been interpreted in a
wide sense and the right to property can be enjoyed individually or collectively.123 One can
therefore argue that customary right of occupancy can be regarded as a property. It can be
questioned if the villagers’ rights to property are protected and if the state protects this right
from third party interference. We have encountered a number of limitations concerning the
villagers’ possibility to decide about their land. In some cases we have been told by villagers
that they are not the ones who make decisions regarding the land and that they are being
forced to allocate their land to foreign investors. If the villagers do not have the possibility in
practice to decide about their land one cannot say that their right to property is protected. In
121 Evans, Murray, 2008, p. 238. 122 Attorney General v. Aknonaay and Lohay. 123 Evans, Murray, 2008, p 239 f.
45
addition we have found that there is a lack of knowledge amongst many of the villagers about
their land rights and about the transferring process. The value of the right to property is low if
the villagers do not have enough knowledge to make informed decisions how to dispose of
their land.
One matter that is closely linked to the right to own property is if interference of the right
gives entitlement to compensation. The charter does not clearly provide any right to
compensation and it is unclear if the right also includes the right to compensation.124 One can
however argue that the right to own property has no value if people do not have the right to be
compensated for their property. The constitution only clearly entitles people to compensation
in case of expropriation but when studying the right to property together with article 29 it is
provided that people have the right to enjoy the benefits of their right to the land. It is difficult
to see how the villagers benefit from their right to the land in case of allocation if they are not
compensated adequately. If the right to property stated in the constitution and the charter
includes a right to compensation then we have found weaknesses in the villagers’ right to own
property.
One weakness is that there is no guarantee in practice that the villagers receive any or
adequate compensation for the land transferred if the compensation is not made in accordance
with the procedures set out in the law, something which can often be the case. We have found
in our study that there is a risk that villagers accept less compensation if promises are made
by a foreign investor about social services and employment opportunities. Usually the
promises cannot be enforced and it is therefore unfortunate that the procedure concerning
compensation often is not followed in practice since that means that the size of the
compensation is not controlled. It can also be questioned to which extent the villagers benefit
from the right to the land when the district can get the major part of the compensation.
Right to Dispose of Wealth and Natural Recourses
The right to dispose of wealth and natural recourses is found in the ACHPR. The regulation
includes a right be protected by the state from damaging acts committed by private parties.125
Land can be considered as a national resource.126 Since the villagers are the ones that have the
124 See Evans, Murray, 2008, p. 240. 125 Evans, Murray, 2008, p. 263. 126 See Evans, Murray, 2008, p. 265.
46
right to village land they are the ones who should dispose of the land and fully benefit from it.
The villagers have to approve the transfer of land and it can therefore be claimed that they are
able to dispose of their land to some extent. Although in some cases we have found that the
villagers feel pressured to make certain decisions concerning the land and in those cases one
can hardly say that they are able to dispose of the land.
In the cases where the villagers are not pressured to allocate the land one cannot say that they
do not have the right to dispose of their land. It can, however, be debated whether the right is
exercised in the exclusive interest of the people and if the villagers are able to dispose of their
land in a way that benefits them. In some cases, as discussed above, the villagers do not have
enough knowledge about the transfer and their land rights to make informed decisions about
their land. It can therefore be questioned whether they can fully benefit from the advantages
derived from the land. In addition, it can be questioned whether the allocations of land are in
the interest of the villagers or in someone else’s interest. For instance, we have found that the
villagers are not aware that promises made by the investor are not enforceable if not included
in the Certificate of Right of Occupancy. Thus there can be a risk that the interests of the
villagers are overshadowed by the interest of other actors. There is, in our opinion, a need for
more education and information concerning land rights to increase the villagers’ possibilities
to benefit from their land.
Right to Development
The ACHPR secures the right to economic, social and cultural development. The term
development means an improvement in well-being.127 In the charter the right is addressed
solely to peoples but it can be argued that also the individual’s right to development is
included.128 Rights to land and natural resources can be considered as a right to economic
development.129 We will therefore only discuss to which extent the process conforms with the
right to economic development and both the villagers’ and the nation’s possibility to develop
will analysed.
We have found that there are several weaknesses in the villagers’ and the nation’s ability to
benefit from the land allocations to foreign investors, which in turn affect their possibility to
127 Evans, Murray, 2008, p. 274. 128 See Ouguergouz, 2003, p. 305f. 129 See Evans, Murray, 2008, p. 273.
47
develop economically. One weakness concerning the villagers’ possibility to develop that we
have encountered in our study concerns the compensation when land is transferred. Many of
the interviewees said that one of the major problems with the process was that the
compensation is only paid once. The value of the land changes with time and depending on
how the land is used it could provide an income for the villagers for generations. If the
agricultural methods in Tanzania are improved there is a possibility that larger land areas than
today can be used for cultivation, which could increase the income in the villages. When land
is allocated the possibility of getting an income from that land is lost. The compensation
therefore has to cover that loss and it can be questioned if a one time payment generates
development to the same extent as increased cultivation would do. This can especially be
questioned in the cases where the villagers feel that the compensation has not been used in a
way that benefits them. In addition, the future generations’ right to development is weakened
if the compensation is not used in a way that generates development for a longer period.
One issue that concerns the nations’ right to development is if the process safeguards that a
part of the income from the allocated land stays within the nation. Foreign investors are given
a possibility to get access to land through a joint venture with a citizen but in practice this is
rare. Many interviewees were of the opinion that the nations’ economy would develop more if
foreign investors would pair up with Tanzanian investors since it would lead to some of the
income being reinvested in the country. One can therefore argue that the regulations
concerning the process should contain either requirements or encouraging regulations
regarding joint ventures. This can be argued especially since it is stated in the Village Land
Act that village land can only be transferred for investments of national interest and it can be
questioned if investments are of national interest if only small parts of the investors’ income
are reinvested in the country.
Conclusions
Both of the regulations dealt with above safeguard the right to equality but in our study we
have found some limitations regarding women’s participation and involvement. The two
regulations also contain statements regarding the right to life. We have found some
weaknesses in the process concerning right to life, if the term life is interpreted in a wide
sense, since it can be questioned if the process protects the Tanzanian population’s needs for
food.
48
Another right which is safeguarded in both regulations is the right to participation. In our
study we have found implications that this right is protected. One example is that the Village
Assembly has to approve of the transfer of village land and another example is that the
Village Assembly elects the members of the Village Council. However we also found
limitations regarding the right to participation. One limitation was that the level of knowledge
in the village was low regarding the process, their land rights and the investment. We also
found weaknesses regarding the villagers’ possibility to make independent decisions and their
possibility to participate in the decision-making about the use of the compensation.
The right to own property is also safeguarded in the two regulations but it can be questioned if
the process conforms with this right. Some villagers have told us that they were forced to
agree on allocating land and the process does not, in practice, safeguard that the villagers
receive adequate compensation for their land. In addition the level of knowledge is of interest
also regarding this right.
The right to dispose of wealth and natural recourses is found in the ACHPR but it can be
questioned if the process conforms with this right. In the case where the villages are not
pressed or forced to agree to the allocation they have the right to dispose of their land. It can,
however, be questioned whether the right is exercised in the exclusive interest of the people,
since we have found that villagers do not always have enough knowledge to make informed
decisions and since the land allocations are not always made in the interest of the people.
Finally the right to development is protected in the ACHPR but it can be questioned if this
right is fulfilled since we have found weaknesses in the villagers’ and the nation’s ability to
benefit from the land allocations.
We have found that, in some cases, it can be questioned if the process conforms with the
rights stated in Tanzania’s Constitution and the ACHPR but we cannot say that the process is
in clear breach of any of the relevant rights in the two regulations. In most of the cases where
we have found that the process might not conform with these rights, the weaknesses
concerned the right of the villagers, but some of the weaknesses have concerned the nation as
a whole.
49
References
International Regulations
African Charter on Human and Peoples’ Rights (1981)
National Policies
The United Republic of Tanzania, National Land Policy, Ministry of Lands and Human
Settlement Development, Dar es Salaam Tanzania, June, 1995
National Legislations
The Constitution of the United Republic of Tanzania of 1977, passed in the Constituent
Assembly on the 25th April, 1977
The Local Government (District Authorities) Act, 1982, passed in the National Assembly on
the 28th April, 1982
The Tanzania Investment Act, 1997, passed in the National Assembly on the 25th August,
1997
The Land Act, 1999, passed in the National Assembly on the 11th February, 1999
The Village Land Act, 1999, passed in the National Assembly on the 11th February, 1999
The Land (Amendment) Act, 2004, passed in the National Assembly on the 10th February,
2004
The Land Use Planning Act, 2007, passed in the National Assembly on the 12th April, 2007
National Subsidiary Legislations
The Land Regulation, 2001 (Supp, No. 16 of 4th May, 2001)
The Village Land Regulations, 2001 (Supp, No. 16 of 4th May, 2001)
50
National Judgements
Attorney General v. Aknonaay and Lohay, Civil Appeal No. 31 of 1994, Court of Appeal
Literature
Cotula, Lorenzo, Vermeulen, Sonja, Leonard, Rebeca, Keeley, James, Land grab or
development opportunity – Agricultural investments and land deals in Africa, FAO, IIED,
IFAD, 2009
Evans, Malcolm, Murray, Rachel, The African Charter on Human and Peoples’ Rights – the
System in Practice 1986-2006, Cambridge University Press, Cambridge, 2008
Havnevik, Kjell, Outsourcing of African lands for energy and food – challenges for
smallholders, Nordic Africa Institute, Uppsala, 2009, unpublished paper
Havnevik, Kjell J, Hårsmar, Mats, The Diversified Future An Institutional Approach to Rural
Development in Tanzania, Almqvis & Wiksell International, Stockholm, 1999
Havnevik, Kjell J, Rwebangira, Magdalena, Tivell, Anders, Land Management in Tanzania,
Sida, Department for Natural Resources and the Environment, Stockholm, 1999
Hornby, A S, Oxford Advanced Learner’s Dictionary of Current English, Oxford University
Press, Oxford, 2005
James, R. W., Land Tenure and Policy in Tanzania, East African Literature Bureau, Dar es
Salaam, 1971
Manji, Ambreena, The politics of land reform in Africa From communal tenure to free
markets, Zed Books Ltd, London, 2006
Ojalammi, Sanna, Contested Lands: Land Disputes in Semi-arid Parts of Northern Tanzania,
Department of Geography Faculty of Science University of Helsinki, Helsinki, 2006
Ouguergouz, Fatsah, The African Charter on Human and Peoples’ Rights – A Comprehensive
Agenda for Human Dignity and Sustainable Democracy in Africa, Kluwer Law International,
51
The Hague, 2003
Probst, Peter, Spittler, Gerd, Between Resistance and Expansion Explorations of Local Vitality
in Africa, LIT Verlag, Munster, 2004
Shivji, Issa G, Not yet democracy reforming land tenure in Tanzania, IIED, HAKIARDHI,
Faculty of Law, University of Dar es Salaam, Nottingham, 1998
Shivji, Issa G, Kapinga, Wilbert B, Maasai Rights in Ngorongoro, Tanzania, IIED,
HAKIARDHI, Nottingham, 1998
Wily, Alden, Liz, Community-based land tenure management, Questions and Answers about
Tanzania’s new Village Land Act, 1999, IIED, 2003
Reports
Ministry of Foreign Affairs of Finland, Department for International Development
Cooperation, Paths for Change Experience in Participation and Democratisation in Lindi and
Mtwara Regions, Tanzania, Rural Integrated Project Support (RIPS) Programme Phase II,
Oy Finnagro AB, 1998
Shivji, Issa G, Peter Maina Chris, Village Democracy Initiative Report, The President’s Office
– Regional Administration and Local Government, 2003
United Republic of Tanzania, Report of the Presidential Commission of Inquiry into Land
Matters Volyme 1 Land Policy and Land Tenure Structure, The Ministry of Lands - Housing
and Urban Development, 1994
Articles
Haramata - Bulletin of the Drylands: People, Policies, Programmes, Interview Land Policy in
Tanzania with Professor Issa G Shivji, No 25, September 1994
Internet Sources
52
African Union:
http://www.africaunion.org/root/au/Documents/Treaties/List/African%20Charter%20on%20H
uman%20and%20Peoples%20Rights.pdf, 2009-12-20
Landguiden, länder i fickformat:
http://www.landguiden.se, 2009-12-07
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http://www.unhchr.ch/huricane/huricane.nsf/view01/5A171ADA855BF615C12575D30010C
EBF?opendocument, 2009-12-25
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http://www.ui.se/defaultE.aspx, 2010-01-06
Tanzania Investment Centre:
http://www.tic.co.tz/, 2009-12-20
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http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table, 2009-
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http://www.transparency.org/about_us, 2010-01-06
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Interviews
53
Government Authorities
Anonymous civil servant (1), Tanzania Investment Centre, 2009-10-02
Anonymous civil servant (2), Tanzania Investment Centre, 2009-10-02 and 2009-11-12
David Mushendwa, Senior Land officer, Land Development Services Department
(Commissioner for Lands), Ministry for Lands and Human Settlements, 2009-10-09 and
2009-11-10
Idris Ali Mtulia, Professor and Member of Parliament for the Rufiji District, 2009-10-12
Gerald K. Mango, Director General, National Land Use Planning Commission, 2009-10-13
District Authorities
Sadiki Boniface, District Land Officer, Kilwa District, 2009-10-21
Leo Rwegasira, District Land Officer, Rufiji District, 2009-10-30
Members of Village Council and Village Assembly
Saidi .A. Njenga, Village Executive Officer (member of the Village Council), Mavuji Village,
Kilwa District, 2009-10-22
Pili B. Ngwena, member of the Village Council, Mavuji Village, Kilwa District, 2009-10-22
Fatima Abdala Mpate, member of the Village Assembly, Mavuji Village, Kilwa District, 2009-
10-22
Anonymous male member of the Village Council, Liwiti Village, Kilwa District, 2009-10-23
Anonymous female member of the Village Assembly, Liwiti Village, Kilwa District, 2009-10-
23
Zainabu Hasani Kuchu, member of the Village Assembly, Migeregere Village, Kilwa District,
2009-10-23
54
Mfaume Rashidi Rehani, member of the Village Council, Migeregere Village, Kilwa District,
2009-10-23
Anonymous male member of the Village Assembly, Migeregere Village, Kilwa District, 2009-
10-23
Ibrahim Zaid Mboweto, Chairmen of the Village Council, Nyamwage Village, Rufiji District,
2009-10-30
Ramadhan, member of the Village Assembly, Nyanda Village, Rufidji District, 2009-10-30
Fanyeje Onguru, member of the Village Assembly, Utunge Village, Rufidji District, 2009-10-
30
NGOs
Godfrey Mpandikiai, Legal Officer, Legal and Human Rights Centre, 2009-09-30
Yfred E. Myenzi, Executive Director, Hakiardhi, Land Rights Research and Resources
Institute, 2009-10-05
Dr. Hussein Sosovele, Programme Coordinator, World Wide Fund for Nature Tanzania
Programme Office, 2009-10-05
Emmanuel Massawe, Executive Director, Lawyers Environmental Action Team, 2009-10-09
Magdalena K. Rwebangira, Advocate at M. K. Rwebangira & CO. Advocates, Corporate,
Gender, Human Rights and Legal Consultants and member of Tanzania Women Lawyers
Association, 2009-10-14
Stephan Rusibomayle, Director of Operations, Mpango wa Kurasimisha Rasilimali na
Biashara za Wanyonge, Tanzania 2009-10-15
Academics
55
Eugene H. Silayo, Specialist in Cartography, Cadastral Surveying and Land Administration,
ARDHI University, 2009-09-29
J.M. Lusugga Kironde, Associate Professor, Land and Urban Economics, ARDHI University,
2009-10-06
Daniel N. Lema, Legal Officer, University of Dar es Salaam, School of Law, 2009-10-06
Israel C. Simba, Lecturer in Land Law and Land Administration, ARDHI University, 2009-
10-07
Investors
Pius Cheche, Assistant Director, Bioshape, 2009-10-24
Anders Bergfors, Managing Director, Swedish Ethanol Chemistry AB, 2009-10-28
Willfred Onyony, Director, Bioshape, 2009-11-12