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Challenges to Tanzania`s land administration system and opportunities missed
2007-08-24 08:37:37
By Dr. Furaha Lugoe
Like others to be discussed in this paper, systemic problems have a known origin and effective climate that support their evolution, existence and growth.
These are, by and large, born of mindsets of land administration leaders to want to continue with past policies and regulations in administering land delivery and land-use processes, in spite of the outdatedness and inapplicability of the old arrangement.
The land administration personnel cling on to the `old order` often, under certain pretexts such as skewed understanding of the relationship between public and private interests in land or lack of appropriate education.
Nowhere is this attitude so prevalent as in the administration of village land that is now primarily governed by the Village Land Act No. 5 of 1999 that also includes the Fundamental Principles of the national land policy, NLP, and corresponding regulations and directives.
It is increasingly common to encounter decisions made on the basis of villagisation policy and laws that were repealed at the time that the new laws were enacted.
The study report of the third public expenditure review process (PER 4) of 2004 contains a long list of such laws.
Most notable are the Villages and Ujamaa Villages (Registration, Designation and Administration) Act No. 21 of 1975 and the Regulation of Land Tenure (Established Villages) Act No. 22 of 1992.
Violation of the fundamental principles:
There are several areas of land tenure that are encumbered and need focused interventions.
Firstly, the national land policy requires land administrators to `recognize land rights for long term land occupation, or use` and that these be secured by law.
However, participants to various seminars on land administration have witnessed cases where land rights have not only been ascertained but, land has been taken away from customary and other uses without due compensation in the post NLP era.
Often, the occupier or owner of land does not have a choice or objection.
Secondly, it is well known and acknowledged that land is a scarce resource but, at the same time, one that everyone must, in one way or another, have access to as source of the basic needs of shelter, food and income for all humanity.
Land for housing should be facilitated by land acquisition to developers from landowners who are willing to sell or lease out their properties.
It is logical to assert that not all people can be landowners and hence mechanisms ought to be put in place aimed at allowing land-use by the landless for the basics of life.
Thirdly, provisions should also allow for a third aspect of sustainable land use, namely; short-term leasing of agricultural lands aimed at putting land to productive use in times of economic or other difficulty confronting the landowner.
In this regard, a market in land should not only be facilitated but be allowed to flourish also.
Land markets should be regulated to guard against speculation and hence protect the poor against loss of this important asset.
Moreover, mechanisms should be put in place to enable such short-term leases without landowners losing their land rights or being branded as absentee landlords.
Finally, the road to women`s land rights is still bumpy in spite of pronouncements in the NLP regarding equitable distribution and land access.
The male dominant attitudes in traditions and customs, as well as in religious beliefs, are still a part and parcel of the mindsets in land administration policy to date.
There are clauses in the village land act for example, that specifically focus on participation of women in decision making with regard to land administration.
A number of critical statements against gender discrimination are provided in the Land Act no. 4, in the context of co-ownership and mortgages (see sections 85, 112, and 161 (2)), which apply to the Village Land Act as well.
The Village Land Act provides for a representation of women (at least 25%) on the Village Council, at least 4 members of the Village Adjudication Committee and at least 3 on the Village Land Council (dispute settlement) to guard against discrimination in access to land.
Public land in private domain?
Mindsets of people were grossly confused by the decision to uphold the principle that land vestment in the `sovereign` will continue in independent Tanzania and made `all land in Tanzania to continue as a public good`.
Confusion reigned when these were followed up with nationalization of assets and property a few years into independence.
To many, particularly those who witnessed the events at the time, public land became understood as communal land meaning also that it belongs to everybody.
As a consequence of this misconception, land ownership, occupation and land rights for individual citizens took on a secondary and marginal role when viewed in context of group or community rights.
The majority of people now still understand, misguidedly, that public land does not give anyone exclusive rights over any land parcel.
In practice today, and regardless of the new regulatory mechanisms in place, public land is freely being occupied.
Further, it is arbitrarily occupied and used when: (i) there seems to exist no visible alternative land uses, (ii) the land parcel seems to be vacant, or (iii) authorities do not show up to take administrative or legal action against the illegal occupier.
This skewed understanding is a major cause of illegal occupations and use and hence cause for untold disputes and conflicts particularly, where a personal need to use land arises.
It has been hinted above that land rights include protective rights against alien occupation and trespass, even by authorities who do not carry evidence or granted right to enter land while on government errands.
This position ought to be respected by all to minimise untold conflicts and cases of trespass many of which are ignored by authorities and marginalised by law enforcement agencies.
Neglected Instruments for Land Administration:
Systemic problems also include poor enforcement of land regulations and control of planned developments.
Land administration systems are duty bound to create land and appropriately deliver the same in accordance with existing rules and regulations.
The onus is on the system to assist the growth of legally accepted land markets and consolidate the security of land tenure.
Systemic problems manifest themselves in several ways: Firstly, the lacklustre attitude to land administration has led to land scarcity in urban areas and hence has caused people to build in open spaces, hazardous areas, blocking infrastructure and on marginal lands without regulation.
Settlements have sprung up as slums, sprawling, unplanned, poorly serviced and hurriedly constructed, as a result of such marginal performances of lands sector institutions.
The slums have attracted the urban poor for providing cheap, though not so healthy lifestyles.
Slums are also conducive to the proliferation of social problems associated with crime, drugs, prostitution, and other forms of lawlessness.
Secondly, there is the issue of unregulated market forces. Properties in irregularly occupied urban lands have marginal values and insecure.
They are hard to market because of poor services and accessibility and hence do not contribute much towards poverty alleviation.
Thirdly, there is also the issue of marginal security of tenure for the majority of properties in slums, as they are erected on land that was neither acquired nor properly granted by urban authorities. Urban authorities view these properties differently.
Some are a subject of demolition, with much loss of wealth to owners and the nation.
Some properties are up-gradable by introducing services and infrastructure.
In all cases any remedies do result in people being disturbed by displacements.
Land administration institutions do not respond in a timely manner and often and, probably too late, seek remedial interventions such as upgrading irregular tenure therein and servicing the land.
It is however, acknowledged that the cost of upgrading slums is much higher than going by the book to acquire, plan, survey, service and deliver land.
Upgrading also takes its toll on property losses during demolitions, which are inevitable.
Systemic Issues in a SPILL Perspective:A careful sample shows that systemic issues in SPILL are many in number and include: (i) an old mindset on a modern land dispensation as discussed earlier.
The general lack of awareness among many actors, particularly at the village and district level, regarding the history of reforms in the country and achievements accomplished in land regulation; (ii) Lack of will to address obvious trespass and encroachment as provided for in the laws.
These result of inaction. The roaming of the countryside by some pastoralists with little regard to existing land rights is a case to consider.
Also inaction to protect loss of crops and livestock against theft is fuelled by this lack of will to act; (iii) Poor enforcement of rules and regulations manifests itself in the preferred mode of top-down planning rather than participatory.
Also the, low capacity for development control that has left open spaces and way leaves prone to invasion is considered, as is an increase in land-use conflicts and disputes both in rural and urban areas; and (iv) A face value guarantee for land titles that manifests itself in law enforcement agents, particularly the police, not intervening directly in incidences of criminal trespass.
Land administrators encourage court action rather than executive action that could offer quick solutions particularly when land titles are openly questioned.
This study paper was researched, developed and prepared by Dar es Salaam Institute of Land Administration and Policy Studies( DILAPS).
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