Article 17 of the Universal Declaration of Human Rights (UDHR, 1948) provides that everyone has the right to own property alone as well as in association with others, and no one shall be arbitrarily deprived of his or her property.
At the national level, Article 24 of the Constitution of the United Republic of Tanzania (1977) stipulates that every person is entitled to own property and has a right to the protection of his property held in accordance with the law.
The primary legislation governing land ownership is the Land Act, No. 4 of 1999 and the Villages Act, No. 5 of 1999. Under the Land Act, there are several categories of land, including village land, administered at the grassroots level for which a certificate of title can be granted to the holder. On the other hand, in Tanzania the Land Acquisition Act of 1967 provides for the compulsory acquisition of lands for public purposes and in connection with housing schemes.
These laws mainly focus on unregistered land which is commonly known as customary land.
There are recent efforts conducted by various NGOs to acquire land certificates for villages. This was identified as a felt need through research that was carried out in 1997 by the Pastoralist Research and Development Project (PARDEP) and other stakeholders in Arusha region.
The research exercise uncovered various constraints and challenges.
“Among them is bureaucratic procedure in approving maps and issuing certificates, and lack of awareness on land rights issues among pastoral communities, which gives room for land grabbers to access more land in dubious ways,” said Mr. Shilinde Ngarula, an activist with the Legal and Human Rights Centre in Arusha, in an interview.
Lack of confidence among villagers is also a problem. Their leaders fail to use legal instruments to defend their land and demand rises particularly for building village registries. It is costly and requires office furnishing, purchasing of cabinets and stationery for registration and administration of customary rights of occupancy.
Other constraints were inadequate funding especially in the area of providing skills on issues pertaining to land laws and training of grassroots officials. Statutory conflicts particularly between land legislation and the Wildlife (Conservation) Act threaten the mandate of village authorities to govern resources efficiently. “We appeal to advocacy agencies to address and influence legislative bodies to settle the confusion,” the law activist noted.
Customary land rights are disregarded, especially when you don’t have title deeds or sometimes barely acknowledged user or occupancy rights.
All unregistered land (95 percent of the territory, and thus most rural land) is included in the state private domain and is presumably under state control. In practice, however, the land is run according to local rules, which are dynamic and reactive to change in the local economic and social context, largely transformed by public intervention.
Mr. David Igongo, a trader based in Arusha, explains that in some areas indigenous communities are still denied the right to own and use the land within their customary or traditional areas. Sometimes the land is arbitrarily seized, under the law that empowers the Tanzania Investment Center (TIC) to allocate land to investors without consulting villagers. He affirmed though that this usually applies to villages without title deeds to the land.
Mr. Saitoti Pamello, acting director of Association for Law and Advocacy on Pastoralists (ALAPA), another NGO working with indigenous people, observed that the government needs to provide indigenous people with title deeds to their land, so as to ensure the survival of the often marginalized communities.
Great achievements in securing village certificates have been registered, with about 200 villages having acquired the certificates.
Under the supervision of an NGO, Community Research and Development Services (CORDS) 99 villages secured land certificates (36 in Monduli, 31 in Longido, 20 in Arumeru and 12 in Kiteto district. The CORDS program is being implemented in 109 villages.
Issuing certificates of title will not end the problem, but at least it will reduce it to a certain level. Mr. Shilinde says that title deeds are issued after it is ascertained that there are no land conflicts in the village land involved, urging villagers to maintain the situation. With title deed documents, no one will come and encroach on the land, and if that were to happen, they will have documents to back their objection to land invasion.
“Title deeds will also help in solving and ending land conflicts. With the document, no one will be able to invade the land because it is legally identified as belonging to the communities,” he elaborated.
Pastoralist communities are the most affected, facing a number of development challenges. Land tenure insecurity surfaced as a major challenge since highly potential areas predominantly used for grazing have been allocated for other uses through various reforms influenced by conservationists and enacted by the Government. Thousands of acres in pastoralist areas were set aside for large scale farming, military camps, extended national parks, hunting blocks, game controlled areas and camp sites.
Due to this reason the communities cried to other stakeholders to halt further encroachment of their land. In response to community,
Experts has purposely addressed those challenges raised. The primary goal is to enhance security of resource tenure for the Maasai pastoral communities. The strategy has been to achieve this through securing certificate of village land as a prerequisite for legal ownership of land under the Village Land Act No. 5 of 1999 and to empower communities by raising awareness on pastoral land rights.
Various groups practice unique forms of pastoralism, ranging from the Maasai in Ngorongoro highlands and Longido plains nomadic cattle keepers to the Barbaig localised pastoralists. Depending on livestock for a significant level of income as well as social mobility is the key element in the pastoral mode of life.
NGOs point out that cattle keepers can move with their cattle because freedom of movement is enshrined in Article 17(1) of the Constitution of the United Republic, while mobility is an ecological necessity. “Mobile pastoralism is often the best way to manage dry environments sustainably, maximise livestock survival and productivity in harsh disequilibrium environments,” the advocacy official noted.
Due to seasonal movements of livestock under the transhumance system, seasonal grazing land has been labeled as no man’s land and legally or illegally alienated into larger plantations, mining caves or national parks, such as the Loliondo Game Controlled Area, Mkomazi Game Reserve, Serengeti National Park and Tarangire National Park.
The new Grazing Land and Food Resources Act of 2010 was a positive development towards pastoral land tenure in the country. The main objective of this law is to lay down clear mechanisms for the management and control of grazing lands and animal feed resources.
However, M2S has discovered that there is another challenge in the primary legislation governing land ownership. The problem is that the law appears to be too modern and ignorant of the type of pastoralist activity practiced in Tanzania. For instance, pastoralists generally keep large numbers of animals requiring huge portions of land for rotational grazing.
However, the new law requires grazing land to be demarcated and animals to be confined to one place depending on the land carrying capacity. Thus it becomes difficult to establish grazing lands within the limits of demarcated land.
UNDP studies say that mobile pastoral systems are more economically productive per land unit than the highly capitalized ranches in northern countries. “The main challenge is on how the law will address this situation, where pastoralists are forced by unavoidable circumstances such as drought to search for greener pasture lands,” Mr. Shilinde intoned.
LHRC efforts would continue being directed at working with its partners such as Community Research and Development Services (CORDS) to make sure that pastoral communities, like others across the country, regain their land rights, he added.