Land as a Human Right

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Wherever there is a person's right, there is a corresponding duty imposed upon that person to respect the rights of others. This co-existence of rights and duties may be explained better by the principle of reciprocity of rights and duties. Such is the basis of Land as a Human Right: A History of Land Law and Practice in Tanzania. The esteemed author documents Tanzanian land law along its line of historical development (pre- and post-independence) whereby the thorny issues about 'rights' and 'duties' of the landed, landless and the intermediaries are elucidated.
This volume is not limited to events in Tanzania, but includes jurisprudence of land law of other countries in order to tap some interpretative devices of our own by way of analogies. Various case types- reported and unreported, local and foreign- provide a tangible content to what would otherwise be pure theory. He also makes references to local newspapers as a way of tapping the public responses about land-related matters.
His survey of such cases in and outside Tanzania led automatically to judgments touching on women's right to matrimonial property and inheritance; individual and collective rights to land; and the right to land of the indigenous peoples. It is the author's view that land law has remained poorly documented in Tanzania. There is plenty of literature about Land Law, yet these sources are not easily available or even accessible to every interested person. Equally, some of the available literature is so old that it may not always depict land law and/or practice as we tend to understand it today.
This volume is a comprehensive text on land law in which all the necessary land law principles are highlighted with great precision. Advocate Rwegasira does this with a human rights approach, believing that it is through this approach that a person's right to land, whether individual or collective, can best be explained, especially in this era when conflict over land is unabatedly becoming central in family, communal and societal relations. The language of human rights is for all of us to speak. It follows, therefore, that practitioners both of the bar and the bench will also find it useful for quick reference, much as will do policy makers, law reformers and the general public in and outside Tanzania.

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ABDON RWEGASIRA
LAND AS A HUMAN RIGHT
Wherever there is a person’s right, there is a corresponding duty imposed upon that
person to respect the rights of others. Tis co-existence of rights and duties may be
explained better by the principle of reciprocity of rights and duties. Such is the basis
of Land as as Human Right: A History of Land Law and Practice in Tanzania. Te
esteemed author documents Tanzanian land law along its line of historical development
(pre- and post-independence) whereby the thorny issues about “rights” and “duties” of
the landed, landless and the intermediaries are elucidated.
Tis volume is not limited to events in Tanzania, but includes jurisprudence of land
law of other countries in order to tap some interpretative devices of our own by way
of analogies. Various case types- reported and unreported, local and foreign- provide a LANDtangible content to what would otherwise be pure theory. He also makes references to
local newspapers as a way of tapping the public responses about land-related matters.
His survey of such cases in and outside Tanzania led automatically to judgments AS A HUMAN RIGHT
touching on women’s right to matrimonial property and inheritance; individual and
collective rights to land; and the right to land of the indigenous peoples. It is the A HISTORY OF LAND LAW AND PRACTICE IN TANZANIA
author’s view that land law has remained poorly documented in this country. Tere
is plenty of literature about Land Law of Tanzania, yet these sources are not easily
available or even accessible to every interested person. Equally, some of the available
literature is so old that it may not always depict land law and/or practice as we tend
to understand it today.
Tis volume is a comprehensive text on land law in which all the necessary land law
principles are highlighted with great precision. Advocate Rwegasira does this with a
human rights approach, believing that it is through this approach that a person’s right
to land, whether individual or collective can best be explained, especially in this era
when confict over land is unabatedly becoming central in family, communal and
societal relations. Te language of human rights is for all of us to speak. It follows,
therefore, that practitioners both of the bar and the bench will also fnd it useful for
quick reference, much as will do policy makers, law reformers and the general public
in and outside Tanzania.
Abdon Rwegasira is Assistant Lecturer and staff member of the School of
Law, University of Dar es Salaam where he teaches Public International Law,
International Humanitarian Law and the Law of Human Rights. He is also a
practicing advocate of the High Court of Tanzania and partner of Law Care
Chambers where he heads the litigation section.
ABDON RWEGASIRALAND AS A HUMAN RIGHT
A History of Land Law and Practice in TanzaniaLAND AS A HUMAN RIGHT
A History of Land Law and Practice in Tanzania
Abdon Rwegasira
LL.B [Hons] (Udsm), LL.M (Udsm),
Assistant Lecturer, School of Law (Formerly Faculty of Law),
University of Dar es Salaam, & Advocate of the High Court of Tanzaniapublished by
Mkuki na Nyota Publishers Ltd
Nyerere Road, Quality Plaza Building
P. O. Box 4246
Dar es Salaam, Tanzania
www.mkukinanyota.com
publish@mkukinanyota.com
© Abdon Rwegasira, 2012
ISBN 978-9987-08-152-3
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or
otherwise, without the prior permission of the Mkuki na Nyota Pulishers
Tis book is sold subject to the condition that it should not by way of trade or otherwise be
lent, re-sold, hire out or otherwise circulated without the publisher’s prior consent in any form
of binding or cover other than that in which it is published and without a similar condition
including this condition being imposed on the subsequent purchaser.Contents
Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .x
Preface . . . xi
Abbreviations and Acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
Human Rights Movement
and the Right to Land in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A General Overview on Political Discourse over the Right to Land. . . . . . . . . . .2
Land Question in Historical Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Land Conficts Arising from Colonial Occupation in Africa . . . . . . . . . . . . . . . .11
Te Concept of Human Rights: A General Overview . . . . . . . . . . . . . . . . . . . . . . .17
Land as a Human Right: Te Position in International Law . . . . . . . . . . . . . . . . .18
Land as a Human Right: Te Law and Practice in Tanzania 30
Land Law Reforms and Tenure Systems
in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Land, Land Tenure and Land Law Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Te Pre-Colonial Land Tenure Systems in Tanzania . . . . . . . . . . . . . . . . . . . . . . . .49
Tenure Systems and Land Law Reforms under German Colonial Rule. . . . . . .53
Tenure Systems and Land Law Reforms under British Rule . . . . . . . . . . . . . . . . .55
Te Post-Independence Land Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
Te Land Acts as the New Land Law of Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . .91Land Delivery Systems:
Te Acquisition of Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Land Allocation by the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94
Land Acquisition by Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
Land Acquisition by Adverse Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111
Land Acquisition by Inheritance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116
Land Acquisition by Gif . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
Co-occupancy and Partition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
Rights and Obligations of the Holder of a Right of Occupancy . . . . . . . . . . . . .126
Easement and Analogous Rights 128
Land Delivery Syetems: Disposition
of Land or Interests in Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Land Transfer by Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134
Transfer of Land Interests by Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152
Transfer of Land Interests by Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181
Compulsory Acquisition of Land by the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203
Succession and the Law
of Inheritance in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
Testacy, Intestacy and Freedom of Testation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .211
Laws of Inheritance and their Scope of Application . . . . . . . . . . . . . . . . . . . . . . .221
Rules of Procedure in the Administration of Estate . . . . . . . . . . . . . . . . . . . . . . . .234
Powers and Duties of Administrators of Estates . . . . . . . . . . . . . . . . . . . . . . . . . . .246
Te Role of an Administrator-General in Administration of Estate . . . . . . . . .251
Women and the Right to Land in Tanzania . . . . . . . . . . . . . . . . . . . . . 253
Te International Law Jurisprudence on Women’s Right to Land . . . . . . . . . . .254
Te Domestic Jurisprudence on Women’s Right
to Land before the Land Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259
National Jurisprudence on Women’s Right to Land under the Land Acts . . .278Te Right to Land of the Indigenous Minorities
in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
General Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284
International Concern on the Right to Land of Indigenous
and Minority People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284
Te Tanzanian Jurisprudence on the Right to Land
of the Indigenous Minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .299
Te Right to Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
Te Right to Compensation in International Law . . . . . . . . . . . . . . . . . . . . . . . . . .306
Compensation and the Law in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .308
Grey Areas in the Realization of the Right to Compensation . . . . . . . . . . . . . . .314
Land Disputes, Litigation and the Role
of Courts in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
General Overview on Land Disputes and the Role
of Courts in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .324
Establishment, Composition and Powers of Land Courts . . . . . . . . . . . . . . . . . .326
Legal Technicalities Afecting a Person’s Right to Land . . . . . . . . . . . . . . . . . . . .341
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .363
Appendixes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371
List of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .387
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .403To my wife Adrophina, for her concern and care
&
my daughter Aline
&
my son Allen,
for their loveForeword
Professor G. Mgongo Fimbo, Ph.D.
An academic work does not always carry a Foreword. Te reason
being that the author would already have a considerable number of
publications in professional journals to his credit before being published
in book form. He would be fairly well known and would not, therefore,
require a senior academic to introduce him and his work. In this case
I have willingly provided this Foreword for two reasons: frst because
literature on land and Land Law in East Africa is scarce and secondly
because of the high calibre of the work of this relatively young academic.
Every one of us, except the present author, was intimidated by Megarry
who wrote that the law of real property (Land Law) is a subject of great
difculty for the beginner because of the complexity of the language,
which involves the use of many technical terms. In this book the author
roundly disapproves Megarry by adopting a reader-friendly language
and style. Te author has chosen his topics well and treated them
competently, drawing from international law, jurisprudence, human
rights law, consitutional law, law of succession, history, anthropology
and feminism. I am certain that this work will be of immense value in
the teaching of Land Law and to legal practitioners in their handling of
land issues and cases.
Dar es Salaam
2nd September 2011.Preface
Given the focus of the book, “Land as a Human Right: A History of Land
Law and Practice in Tanzania,” it is encouraging to state, at the outset, that
the use of the language of human rights to address various land issues
(particularly acquisition, occupancy, and transfer of land) is a developing
jurisprudence not only in Tanzania, but also at the international level. Tis
means that in all matters of property relations, the modern language of a
“human right” to access or deal with land by all is replacing the traditional
language of a “legal right” to own land by the few and to the exclusion of
many. However, we all know that rights (human or legal) and duties
coexist. It means that wherever there is a person’s right to deal with land,
there is a corresponding duty imposed upon that person to respect the
rights of others. Having this in mind, then, my task in writing this book
is made simple: to follow and document Tanzanian land law along its line
of historical development whereby the thorny issues about “rights” and
“duties” of the landed, landless and the intermediaries are demonstratively
captured. It is, therefore, my hope that the form and content of the book
will encourage students of land law, the practitioners in the Bar and the
Bench, and any other interested party along the path to the enjoyment of
land law (and practice) in all its aspects.
Te work is presented in simple language and systematic style,
whereby episodes and events are not only interconnected but also
interrelated. Moreover, I have not limited my attention only to events
in Tanzania, but have also traversed the jurisprudence of Land Law of
other countries in order to tap some interpretative devices of our own
land law by way of analogies. In this respect, I have referred to cases
(reported and unreported, local and foreign) knowing that case law
provides tangible content to what would otherwise be pure theory! At xii LAND AS A HUMAN RIGHT
times, I have made references to local newspapers as a way of tapping
public responses about land related matters. Te information therefrom
should not be taken as being authoritative; it simply stands as an
expression of the public’s attitudes towards the subject. Any defciency
or insufciency therein need not discourage you, but it should instead
breed into you new zeal and vigour as you refect on the subject and
consider making your own contribution to the discussion. I will have
succeeded if this book gives voice to the voiceless landless, catalyses
awareness on various aspects concerning the land rights, and sets plain
ground on which the right to land of the landed and landless may be
debated more fruitfully.
In writing this book I have relied not only on my own knowledge of
the law and practice about the subject (land), but also on the knowledge
of many others in and outside the legal profession who have equally
written in many areas into which this book has necessarily ventured.
Since I cannot fully record my indebtedness to the satisfaction of them
all, I should be forgiven as I mention only Professors Issa G. Shivji,
Gamaliel Mgongo Fimbo and Chris Maina Peter of the University of
Dar es Salaam School of Law. Te writing of this book was directed
to the many sources which the trio identifed. My learned brothers in
the Bar and Bench, Mr. Martin Rwehumbiza (Advocate) of Kesaria
and Company Advocates, Sigsbert Ngemera of Ntonge and Company
Advocates and Honourable Augustine Karichuba Rwizile (SRM)
provided me with some relevant authorities in the nature of unreported
cases. To them all, and to many other unnamed members of academia,
who have contributed to this publication with proposals, corrections
and comments, I owe a heavy debt of gratitude.
Special and many thanks, again, go to Maria Malingumu Kashonda
(Advocate) of Law Care Chambers and current chairperson of TAWLA
and Professor H.I Majamba of the University of Dar es Salaam School
of Law whose substantial review of the manuscript and comments
have signifcantly enriched its form and content. It cannot go without a
mention of my beloved family: wife and children. My wife, in particular
has been a responsible woman as she has tolerated all the inconveniences
involved in the preparatory work of the book. My children have been
a source of pleasure and comfort especially during break times that
followed the busy hours of writing.
Abdon Rwegasira
Dar es Salaam
June, 2011Abbreviations and Acronyms
AC Appeal Cases (Law Reports)
BC Before Christ
Bom Bombay
BRELA Business Licensing and Registration Agency
CA Court of Appeal
Cap Chapter of the Laws
CCM Chama Cha Mapinduzi
Ch Chancery (Law Reports)
CJ Chief Justice
Co Company
CSOs Civil Societies Organisations
CT Certifcate of Title
Doc Document
EA East Africa Law Reports
Law Reports of the Court of Appeal for
EACA
Eastern Africa
Ed. Editorxiv LAND AS A HUMAN RIGHT
Eds. Editors
ER English Reports
et al et alia (and other persons)
GA General Assembly
GN Government Notice
HC High Court
HCD High Court Digests
HC-Z High Court of Zanziber
i.e id est (that is to say)
IBDR International Bank for Rural Development
Ibid Ibidem (in the same place, book or source)
ICJ International Court of Justice
International Institute for Environment and
IIED
Development
ILO International Labour Organisation
International Work Group for Indigenous
IWGIA
Afairs
J Judge
JA Judge of Appeal
JJA Justices of Appeal
KB Kings Bench Division
LARRIT Land Rights Research Institute
LHRC Legal and Human Rights Centre
LL.B Latin Legum Bacclareus (Bachelor of Laws)
LL.M Latin Legum Magister (Master of Laws)
L.R.C Law Report of the Commonwealth
L.R.T Law Reports of Tanzania
Ltd. Limited ABBREVIATIONS AND ACRONYMS xv
Misc. Miscellaneous
NAFCO National Agricultural and Food Corporation
NBC National Bank of Commerce
NGO Non-Governmental Organisation
NHC National Housing Corporation
No. numero (number)
op cit opere citato (in the work already cited)
Organisation on Security and Cooperation
OSCE
in Europe
p.. page
para.. paragraph
PC Primary Court/Privy Council
PCIJ Permanent Court of International Justice
pp. pages
Presidential Parastatal Sector Reform
PSRC
Commission
QB Queens Bench
R.E Revised Edition
Resn. Resolution
S.M.Z Serikali ya Mapinduzi Zanzibar
SUKITA Shirika la Uchumi na Kilimo
supra Above
TAMWA Tanzania Media Women Association
TANU Tanganyika African National Union
TAWLA Tanzania Women Lawyers Association
TGNP Tanzania Gender Networking Programme
TLR (R) Tanganyika Law Reports Revised
TLR Tanzania Law Reportsxvi LAND AS A HUMAN RIGHT
Tshs. Tanzanian Shillings
UDSM University of Dar es Salaam
UK United Kingdom
UN United Nations
United Nations Working Group on
UNWGIP
Indigenous People
USD United States Dollars
v. versus (against)
Vol. Volume
WLR Weekly Law ReportsIntroduction
Human rights approach has not been immediately relevant
to arguments for particular types of land tenure systems.
Such an approach, however, is of value in determining the
moral weight of competing land rights, when claims made
by those who need land but do not own it, are pitted against
claims of those who own land but do not necessarily need it.
- Winnie Bikaako and John Ssenkumba1 -
1 BIKAAKO, Winnie and SSENKUMBA, John, “Gender, Land and Rights: Contemporary
Contestations in Law, Policy and Practice in Uganda”, at p. 241.xviii LAND AS A HUMAN RIGHT
No idea comes from nothing. Te idea to write and the choice of the
subject matter in this work: Land as a Human Right: A History of Land
Law and Practice in Tanzania, was triggered by my own understanding
and belief that Human Rights, as a discipline, pervades all aspects of life
at all levels of human society. Understanding Human Rights is sine qua
non for the better understanding of society and of the laws governing
social relations, be it Land Law, Jurisprudence, Family law, Tax Law and
so on. As in any other country in the world, the History of Land Law
in Tanzania, especially, has been evolving along the axis of rights. Te
2intellectual works of resource persons such as Issa G. Shivji and Ringo
3W. Tenga are premised on the obvious fact that the land question has
always been a struggle for land rights between, on one hand, those who
need land but do not have it (the poor peasants; pastoralists; women;
the indigenous people and minorities, on a long list) and, on another
hand, those who have plenty of land but who do not necessarily need
it. Gamaliel Mgongo Fimbo sees this kind of struggle as a historical
phenomenon in the jurisprudence of land law when he notes very
correctly that:
Historically, land has always been an arena of struggles between
contending forces. From the 16th to the 19th centuries in England
ferce struggles between the emerging bourgeoisie on the one hand
and the feudal lords on the other culminated in land becoming a
commodity. In this way the bourgeoisie was able to access land
through the market. In Africa land was an arena of struggles
between the colonized and the colonizer with the colonizer seeking
to wrest control over land from the colonized. A Kenya settler,
Colonel Grogan, once remarked graphically, “We have stolen his
(Kikuyu’s) land. Now we must steal his limbs. Compulsory labour
is the corollary of our occupation of the country.” Likewise, in the
post-independent period the petty bourgeoisie in control of state
power has insisted on vesting the radical title in land in the President
4in order to maintain control over land as against the peasantry.
2 See, for example, SHIVJI, Issa G., (1998): Not Yet Democracy: Reforming Land Tenure in
Tanzania, London, Dar es Salaam: IIED, Faculty of Law, University of Dar es Salaam,
HAKIARDHI.
3 See, foe example, TENGA, Ringo W., “Legitimizing Dispossession: Te Tanzanian High
Court’s Decision on the Eviction of Maasai Pastoralists from Mkomazi Game Reserve”,
Cultural Survival Quarterly, Issue 22.4, January 31, 1999.
4 See FIMBO, G.M, (2004): Land Law Reforms in Tanzania, Dar es Salaam University Press Ltd. INTRODUCTION xix
W.R.Tenga and Sist J. Mramba consider struggle over land rights as
part and parcel of the human life when they state that:
Nobody can live without land, and most people have to share
it, creating competing rights. Disputes about rights in land
cannot be avoided. People’s relationships to land depend
5on many factors and have a strong cultural element.
Chris Maina Peter is even much more to the point when he establishes
the link between land and human rights as he observes that:
Land is an important resource in the world today. It is the
main source of livelihood and survival. Therefore, whoever
controls land logically controls the lives of others. This is
because that person or persons control what guarantees
survival of human beings. Due to the proximity of land
6to survival, it is frequently related to the right to life .
What is important to note here, is the fact that it is in the context
of human rights that we record many of what I may call the
groundbreaking or landmark cases; that is to say, the cases in which courts
have either expressly or implicitly invoked the human rights language
to deliver seminal decisions in favour of the marginalised landless or
against them for the sake of the status quo. A cursory survey of such
decisions in and outside Tanzania leads us automatically to judgements
7touching, for example, on women’s right to matrimonial property and
8 9 10inheritance ; individual and collective rights to land; and the right
5 TENGA, Ringo W and MRAMBA S.J., (2008): Manual on Land Law and Conveyancing in
Tanzania, Tumaini University, (Unpublished).
6 See PETER, Chris Maina, “Human Rights of the Indigenous Minorities in Tanzania and the
Courts of Law”, A Paper presented at the University of Bergen, Norway, February 2007, at p. 16.
7 Bi. Hawa Mohamed v Alli Seif [1983] TLR, No.32. Te full case also appears in Peter, C.M.,
(1997): Human Rights in Tanzania: Selected Cases and Materials, at pp. 396-405.
8 Bernado Ephrahim v Holaria Pastory and Another, High Court of Tanzania at Mwanza, Civil
Appeal No. 70 of 1989. Reported in [1990] LRC (Const.) 757, and reproduced in Peter, C.M.,
ibid, at pp. 385-396.
9 Te Attorney General of Tanzania v Lohay Akonay and Another [1995] TLR No. 80. See also
PETER, Chris Maina, ibid, at pp.236-247.
10 Mulbadaw Village Council and 67 Others v NAFCO [1984] TLR 15 (HC), See also Peter, C.M.,
ibid, at pp. 228-236. See also Likengere Faru Parutu Kamunyu and 52 Others v Minister for
Tourism, Natural Resources and Environment and 3 Others, Court of Appeal of Tanzania at
Arusha, Civil Appeal No. 53 of 1998 (Unreported).xx LAND AS A HUMAN RIGHT
11to land of the indigenous peoples . Not only that, but even the recent
land law reforms are inclined towards recognising, promoting, and
protecting the right to land of all people, the emphasis being on the
elimination of discrimination based, for example, on sex and status. Te
rights to land of the marginalised such as women, the disabled, and the
poor are now well recognised through the current land law reforms.
12A cross section examination of the Tanzanian Land Act, Village Land
13 14 15Act , Law of Marriage Act, and the Land Dispute Courts Act points to
this conclusion.
However, as we may all agree, the general principle of human rights
is that there cannot be rights without duties. It means, therefore, that
the current land policy and law reforms keep on changing not only to
respond to new demands, but also to ensure that the rights and duties of
the landholders and the landless are clearly defned and protected. All
these explain the meaning and essence of the choice of the topic, “Land
as a Human Right.”
Let me also say that my understanding and experience over the subject
of land, as well as my awareness of the legal wrangles that are being
encountered by the various stakeholders in the administration of land
law, make me believe that land law has remained poorly documented.
Indeed, there is plenty of literature on matters of great concern about
Land Law of Tanzania which appear in various forms including books,
seminar and research presentations, academic dissertations and theses,
and case law reports, and which are home to the old as well as new
principles on land law, yet these sources are not easily available or even
accessible to every interested person. Te reasons behind the malaise
include, among many, the fact that most of the sources are not meant
for publication, or if published only few copies appear in public. Equally,
some of the available literature is so old that it may not always depict
land law and/or practice as we tend to understand it today. In other
words, the available literature does not capture the latest reforms and
newest laws.
11 See Mabo and Others v Queensland (No. 2) [1993] 1 LRC 194, and; Alexkor Limited and the
Government of the Republic of South Africa v Te Rechtersveld Community and Others , Case
No. CCT 19/03. (South Africa).
12 [Cap. 113 R.E 2002].
13 [Cap. 114 R.E 2002].
14 [Cap. 29 R.E 2002].
15 [Cap. 216 R.E 2002]. INTRODUCTION xxi
Te inevitable consequence, then, is that teaching land law in our law
schools has always been uneasy task, not only on the part of the lecturers
who need to make research and prepare lectures for students, but also
to students who need in-depth understanding of the subject before they
undertake to sit for examinations or carry out research for the purpose
of writing compulsory papers (dissertations and theses). Te end result
is either poor training or training poorly. A similar story may be told of
the legal practitioners in the feld. At the end of it all, it becomes a case
of a vicious circle of poor practice in the feld of land administration
for the reason that the beacons of the law faculties are not shining a
light bright enough to lead to the next generation of law makers. It is
in the view of this observation that I attempt, in this book, to rewrite
land law of Tanzania in the context of its past and present forms. Tis is
the essence of the second part of the title, “A History of Land Law and
Practice in Tanzania”.
It is appropriate, at this point, to say what the book is, and what it is
not. It is not a comprehensive analysis of all land law legislation and how
it has been interpreted section by section in the courts of law. My limited
task is to unfold the history of land law in Tanzania and also to show how
the law has been applied in practice. I do this by tracing and discussing
land law along its line of historical development before independence,
at the time of independence, and in the post independence period. Te
main object of writing is to try to have a single but comprehensive text
on land law in which all the necessary land law principles are highlight
with great precision. I do this with a human rights approach, believing
that it is through this approach that the right to land, whether individual
or collective, can best be explained, especially in this era when confict
over land is unabatedly becoming central in the family, communal and
societal relations. I mean this era in which cases of a son rising against
the father, a wife against the husband, a brother against a brother, an
individual against the neighbour, a family against the community,
a community against the State or even a State against another, are
becoming the lifestyle of the time, all for the sake of securing land
rights. Tis is the case, even if it means bloody struggles and sacrifce
16of human life for the sake of seeking or securing the right to land!
Many scholars have explained the reasons behind the question of land
16 In Tanzania, we still have fresh memories about the recent brutal killings of innocent
people (about 7) as a result of the fght over land rights between the Mabwegere villagers
(pastoralists) and Mambegwa villagers (farmers) in Kilosa District, Morogoro, which
thoccurred on 27 October 2008.