pastoralists in Tanzania, a new trend of IDP,s

PROSTITUTIONS AND HOMOSEXUALITY IN TANZANIA

POSITION OF THE LAW IN TANZANIA ON HOMOSEXUALITY AND PROSTITUTIONS /COMMERCIAL SEX WORK

Introduction
International human rights law and the lesbian and gay rights movement have grown up together in the years since World War II. Both are still developing. Both are evolving from western initiatives to a world-wide presence.But there are international movement that advocate for the rights of Lesbians, International Gay and Lesbian Human Rights Commission (IGLHRC) and Global Rights. According to the culture and morality in Tanzania prostitutions/commercial sex work and homosexuality are totally prohibited by the law.
1. Prostitutions
Prostitution is translated in Kiswahili as umalaya and the prostitute as Malaya. Umalaya is used to refer to the sex life of an individual considered to be promiscuous or loose in sexual relations. Prostitution is mainly urban-based and usually refers to women; in the traditional African culture, promiscuous or “loose” men are not considered as prostitutes.
Prostitution is illegal in Tanzania. Thus, such individuals are from time to time rounded up by police and the locations known to house prostitutes are raided. However, the victims of these raids are always females, as the male partners and patrons are left untouched.
There are several forms of prostitution. The “classical” Malaya women operate indoors. They stay inside their rooms and wait for men to visit them.
Prostitution involves barmaids, guesthouse workers, and promiscuous married women. These types of women have their own residences like the classical Malaya; however, they may or may not invite their clientele to their places.
A new form of umalaya has emerged in Tanzania in the late 1990s, nicknamed Uchangu Doa (the person is nicknamed Changu Doa or CD. The name comes from a species of fish from the Indian Ocean. Payment for services is negotiable and depends on the duration of the service, the economic and social status of the customer, status of the urban area, the location where the CD was encountered, time of the night, and education level of the CD. The longer the duration of services, the higher the price. CDs operate in large or well-known urban areas like Dar es Salaam, Arusha, or Dodoma.

The kind of prostitutions which is prohibited by Tanzania penal Code is earning trough prostitutions.That,implies only those who gain money out of commercial sex are liable under the law. The Penal code prohibits earnings through prostitutions according to sections 146-148.This is among the offences categorized as offences against morality.
2. Homosexuality
In Tanzania, sex acts between men are illegal, and carry a penalty of Life imprisonment. Sex acts between women are not mentioned in Tanzanian law. In particular, sections 154 to 157 of the Penal Code criminalize sexual activity between men, stipulating a maximum sentence of 14 years in prison; Sexual acts between women are not mentioned in the Penal Code.
(1) Any person who- (a) has carnal knowledge of any person against the order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years. (2) Where the offence, under subsection (1) of this section is committed to a child under the age of ten years the offender shall be sentenced to life imprisonment.
Even the Law of Marriage Act of 1971 section 9 recognizes only one type of marriage, that is, marriage between male and a female. And marriage between people of the same sex is not recognized by the law.
A law imposing a prison term of up to 25 years for anyone convicted of having gay sex has gone into effect in Zanzibar... gay men could be sentenced to a quarter century… lesbian sex is seven years. The gay sex sentence is the same as that for murder. The law went into effect this week after it was signed by president, Amani Karume. Zanzibar‘s parliament, in a rare show of unity, passed the bill unanimously in April. There is no difference between sodomy and murder said Sheikh Muhammed Said, a Zanzibar Islamic leader. This is what we have been aspiring for, he said of the penalties.
3. Challenges
The United Republic of Tanzania acceded to the International Convention on Civil and PoliticalRights1 (ICCPR) on 11 September, 1976. These violations are based solely on a person‘s actual or suspected sexual orientation. The question is whether this behavior by a state party to the ICCPR is a violation of articles 2(1), 26, and 17 and whether it is a failure of the duty and obligation of the government to protect its citizens with no partiality.

Article 17(1) states that people should be free from arbitrary or unlawful interference with his [or her] privacy; family, home or correspondence. Article 17(2) additionally mandates that the law must protect all people from such interferences. The Constitution of the United Republic also provides for the guaranteed privacy of its people,

16. – (1) every person is entitled to respect and protection of his person, the privacy of his ownperson, his family and of his matrimonial life, and respect and protection of hi residence and private communications.
4. Conclusion
According to the culture and morality in Tanzania prostitutions and homosexuality are totally not practiced, and if the law prohibits such kinds of sexual behaviour in Tanzania, then the country doesn’t violates any rights as provided by ICCPR and other legal instruments. The rights of people are respected if they conducts themselves not against the culture and morality of their nations. That is why; homesexuality and prostitutions have been categorized as offences against morality.

untold story of the ngorongoro district

Bleak future for Loliondo Maasai on advent of UAE hunting company
THE livelihoods of members of the Maasai pastoral community within the Loliondo Game controlled area in Ngorongoro District, Arusha Region has of late become threatened by the antics of a certain foreign hunting company operating in the area, Ortello Business Corporation (OBC). Locals say the United Arab Emirates (UAE)-registered company is behind a recent sequence of events where hundreds of Maasai kraals (bomas) were set ablaze in order to protect OBC’s hunting operations, and the Maasai forcibly evicted. An on-the-spot survey showed at least three Field Force Unit (FFU) officers on guard at one of the OBC camp stations, two of them driving in a Nissan Patrol vehicle with private registration number T 179 AGX. Speaking during interviews with journalists and activists under the FemAct coalition, the villagers said they have been forced out of the villages they have lived in for years, into bone-dry areas with hardly any water or pasture for their livestock. ?We are now living in extreme poverty and not sure of our future, since we solely depend on livestock for our survival?It is just a matter of time before our cattle all die due to lack of water and grazing areas,? said Ephraim Kaura, an elder from Ololosokwan Village. The villagers from Ololosokwan, Olarien Magaidur, Soit Sambu, Ngirgir, Arash, Maaloni and Karkarrmoru Villages are seeking government intervention to come to their rescue and their livestock. However, Ngorongoro District Commissioner Elias Wawi Lali justified the eviction exercise, arguing that the villagers have been destroying the environment and carrying out farming activities along the wildlife migratory corridor - thus threatening the continued existence of wild beasts. Lali charged further that at the centre of controversy is a shortcoming in the laws governing the area. According to the DC: ?In 1959, Loliondo was declared a game-controlled area while Ngorongoro was declared a conservation area. Loliondo was allocated 41 per cent while Ngorongoro was allocated 59 per cent of the total land in the district. ?This meant that the land in Ngorongoro District is for wildlife purposes. But again in 1983, the villages within the district were also registered legally?which is the centre of the problem. ?The villages were registered while at the same time the law that declared Ngorongoro and Loliondo as conservation and controlled game areas respectively had not been amended or annulled.? The irony, however, is that even the DC’s own office and other government structures are situated within the game-controlled area, meaning that they could also be demolished at any time should the OBC deem it convenient. Speaking to THISDAY in Dar es Salaam yesterday, the Minister for Natural Resources and Tourism, Shamsha Mwangunga, said she will visit the area in the near future to assess the situation. ?I usually get varying views from the wananchi, government officials, and non-governmental organizations in the area?I will go to see for myself what is going on, so that we can come up with an amicable solution,? said the minister. According to the villagers, large groups of Arab royals and high-flying businessmen spend weeks in Loliondo each year, hunting antelopes, lions, leopards, and other wild animals. The commander of the eviction operation, Acting Inspector of Police Isaac Manoni, denied claims that members of the FFU raped a local woman during the exercise, but admitted that the force deployed to handle the operation had no female officer on board. ?We did not have any female officers during the operation, simply because we never expected a confrontation with the villagers,? Manoni said. On her part, Loliondo local councillor (Special Seats) Tina Timan said the eviction operation ?disturbed us very much psychologically.? She said the local community has looked after the wild animals and the surrounding environment for decades, and ?it is not true that the villagers have encroached the game controlled area.? Tina called on the government to consider the plight of the Maasai pastoralists, saying the area from which they have been evicted is the only one with grazing land and water to feed their livestock ?particularly at this time when the whole district is faced with drought.? ?No one talks of killing the wild animals, but rather environment degradation. We should also be left to benefit from the wildlife which we have taken care of for years,? lamented the councillor. An OBC official, said by locals to be the camp manager at one of the company’s sites in the area, declined to either identify himself or clarify on the issues brought up by the locals.

IHL ESSAY

INTERNATIONAL COMMITTEE OF THE RED CROSS
7TH ANNUAL ESSAY COMPETION FOR THE EAST AFRICA UNIVERSITY LAW STUDENTS.






UNIVERSITY OF DAR ES SALAAM SCHOOL OF LAW (FORMERLY FACULTY LAW)
P.O.BOX 35093.
DAR ES SALAAM
TANZANIA

NAME: PAUL ONESMO OLENGURUMWA
REG NO: 53890/T.2005
DATE 29/05/2009

QUESTION
DISCUSS THE INTERPLAY BETWEEN INTERNATIONAL HUMANITARIAN LAW AND OTHER LEGAL REGIMES IN SITUATIONS OF VIOLENCE INCLUDING ARMED CONFLICTS.









TABLE OF CONTENTS.
Page
1.0 Abbreviations…………………………………………………………..I-II
2.0 International Legal Documents……………………………………… ..III-IV
3.0 General Introduction ………………………………………………… .1-2
4.0 Interplay between IHL And Human Rights…………………………… .3-7
5.0 Interplay between IHL And Refugee Law…………………………… 8-9
6.0 Interplay between IHL And International Criminal Law…………….. 10-12
7.0 IHL And Other International legal regimes…………………………. ..13-14
7.1 International Environmental…………………………………………. 13
7.2 International Customary Law…………………………………………. 14
8.0. Conclusion…………………………………………………………… 15
9.0 References















1. 0 Abbreviations
API Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed
Conflicts (Protocol I), of 8 June 1977
APII Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II), of 8 June 1977
GCI Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, of 12 August 1949

GCII Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
of 12 August 1949
GCIII Geneva Convention relative to the Treatment of Prisoners of War, of
12 August 1949
GCIV Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949


CRC Convention on the Rights of the Child, United Nations, 20/11/
1989

1899 Hague Declaration Declaration concerning the Prohibition of Using Bullets which
Expand or Flatten Easily in the Human Body (International Peace
Conference, The Hague, 1899)

1925 Geneva Protocol Geneva Protocol of 17 June 1925 for the Prohibition of the Use in
War of Asphyxiating, Poisonous or other Gases and of
Bacteriological Methods of Warfare

1954 CCP Convention for the Protection of Cultural Property in the Event of
Armed Conflict, of 14 May 1954

ICCPR International Covenant on Civil and Political Rights of 1966
ICTY Statute Statute of the International Criminal Tribunal for the former
Yugoslavia
ICTR Statute Statute of the International Criminal Tribunal for Rwanda
ICL International Criminal law
IHL International Humanitarian Law
ICRC International Committee of the Red Cross
ICC Statute Rome Statute of the International Criminal Court, 17 July 1998
1999 CCP Optional Protocol to the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict, 26 March 1999
IAC International Armed Conflict
ICJ International court of Justice
NIAC Non international armed Conflict
SCSL Statute Statute of the Special Court for Sierra Leone, 16 January 2002
UDHR Universal Declaration of Human Rights, 1948
UNHCR United Nations High Commission for Refugees
UN United Nation
























2.0 List of international legal instruments
Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed
Conflicts (Protocol I), of 8 June 1977

Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol II), of 8 June 1977

Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, of 12 August 1949

Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
of 12 August 1949

Geneva Convention relative to the Treatment of Prisoners of War, of
12 August 1949

Geneva Convention relative to the Protection of Civilian Persons in
Time of War, of 12 August 1949


Convention on the Rights of the Child, United Nations, 20/11/
1989

Declaration concerning the Prohibition of Using Bullets which
Expand or Flatten Easily in the Human Body (International Peace
Conference, The Hague, 1899)

Geneva Protocol of 17 June 1925 for the Prohibition of the Use in
War of Asphyxiating, Poisonous or other Gases and of
Bacteriological Methods of Warfare

Convention for the Protection of Cultural Property in the Event of
Armed Conflict, of 14 May 1954

International Covenant on Civil and Political Rights of 1966
Statute of the International Criminal Tribunal for the former
Yugoslavia

Statute of the International Criminal Tribunal for Rwanda

15.Rome Statute of the International Criminal Court, 17 July 1998

16 Optional Protocols to the 1954 Convention for the Protection of
Cultural Property in the Event of Armed Conflict, 26 March 1999
International Armed Conflict

17. Statute of the Special Court for Sierra Leone, 16 January 2002

18. Universal Declaration of Human Rights, 1948

19. 1980 convention on prohibitions or restriction on the use of certain weapons, which may be deemed excessively injurious, or to indiscriminative effects. Geneva 1980

20. The convention against torture The Convention Against Torture and Other Cruel and Inhuman and degrading treatment or Punishment of 1984





















3.0 General introduction

International humanitarian law (IHL), often referred to as the laws of war, the laws and customs of war or the law of armed conflict, is the legal corpus "comprised of the Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and customary international law." It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other [1]

IHL also known as the law of armed conflicts or the law of war is the body of rules which, in wartime protects persons who are not or no longer participating in the hostilities. It limits the methods and means of warfare. The two branches of IHL draw their names from the cities where each was initially codified. But after establishment of additional protocols of 1977 the two branches wee combined, now that distinction is of merely historical and didactic value.

The law of Geneva was designed to safeguard the civilians and military personnel who no longer take part in hostility also known as While the law of The Hague establishes the rights and obligations of belligerents in the conduct of hostility, military operations and limits the means of harming the enemy. Currently the four Geneva conventions[2] and their additional protocols of 1977[3], 1980[4] and protocol of 2006[5] are the main principal instruments of IHL






Objectives of IHL
Restricts the right of the parties to a conflict to use the means and methods of warfare of their choice
Protects persons and property affected or liable to be affected by the conflict

Generally IHL was originally emerged as the branch of international law to care the wounded and sick at the time of war[6] IHL never work it self, there is general framework of relations between IHL and the other bodies of law .In this essay we shall discuss the way IHL interplay with branches of laws in violence situations. These branches are International refugee law, International Criminal law and International human rights law. My focus will base on protected persons, displaced persons, and deprivation of liberty, judicial guarantees, the use of force and Mechanisms for the implementation /enforcement and relief actions.

















4.0 The interplay between IHL and Human Rights Law
International human rights law and IHL are two branches of International law with common purpose. Human rights law establishes rules for harmonious development of individual in society. The main purpose is to safeguard dignity.[7]

4.1 Application
It is form 1940’s after 1984 UDHR that protection under human rights and IHL began to overlap. The 1864 convention sought to protect the combatant from state of action or the combatant. Following World War II the general conventions were revised to extend the protections of humanitarian law in light of experience. Then those expansions began to overlap with emerging schemes being the protection of individuals.[8]

States have obligation under the human rights law to protect the citizens. This principle is implicitly in famous obiter dictum of ICJ in the Barcelona Traction Case in which it classifies under the obligation Erga Omnes (the rule concerning the basic rights of human being[9] But the same regime in constitutional law and international instrument after World war two came with derogation clauses where during serious civil unrest or insurgency constitutional guarantee are suspended or made inoperative.

It is certainly no coincidence that common Article 3 to GC contains some rights, which were later, formulated as non-derogable rights under the human rights conventions. GC were adopted one year after UDHR.Then under common article 3 binding force was given to those provisions of UDHR, which were considered to be essential under all circumstances.

Myren says, human rights which apply at all times have often influenced humanitarian law which applies only to situations of armed conflicts and common article 3 (commonly small convention within a large convention). This offers a prime illustration on this two legal regime interplay. These provisions in GC’s mirror those of UDHR.[10] which were negotiated at the same time in peace as well as in time of armed conflicts for the preservation of peace, human life and integrity. Then we can say common article 3 is core legislation on human rights law.

Protocol II to GC is mixture of human rights and IHL. Part 1,III and IV deals with armed conflicts while part II contain genuine human rights law. Protocol 2 supplements principle of humane treatment by providing fundamental guarantee Art 4 and 1.

The question to determine the intensity of armed conflicts or threshold for the applicability still remain unresolved by IHL, but by human rights law the non-derogable rights - continue to govern the acts of violence committed during armed conflicts

4.3 Enforcement Mechanisms
While human rights regimes adopted the systems of individual complaints by having human rights commission 1969 individual application were declared admissible in Europe and additional protocol of ICCPR of 1973. But the GC drafters were not much claver to think on how those conventions can be implemented. Article one common to all four Geneva conventions provide that “High contracting parties undertake to respect and to ensure respect for the prevention of convention.

Christine Cerna [11] says human rights regime is an integral system, human rights regimes are instruments designed to apply to all human being in war and in peace. The majority of the provision of the regional human rights instruments set forth primarily civil and political rights to be observed in time of peace, however thus doesn’t not exclude the fact that such regime also comprehend during wars.
1964 International human rights Commission of Jurists at the time headed by Mack Bride said, that whenever an internal conflicts or disturbance arises in any party of the world, the Secretary General of the United Nations or some other UN officials should send to the belligerents a notice of the provisions of the law of Nation as elaborated by GC as well as provisions of the UDHR.[12]

GCI - Art. 49: "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article"

Once G.A.D. Draper said (1971) the 2 bodies of law have met and fusing together at some speed and speed that in number of practical instance the regime of human rights is setting the general direction and objectives for revision of the law of War. This can contemporarily be witnessed by emerging issues confronting IHL.We have peacekeeping operations and anti terrorism acts. USA operations in Afghanistan and Pakistan need multiple approaches to determine whether there is breach or violations of various rights.

Sean Mac Bride called for the body after tribunal with international criminal jurisdiction to receive complaints against violations of GC (supra at p 388). Then 1970 J.G second report on respect for Human rights in armed conflicts noted that in some instances, the protection of human rights instruments was greater than protection under GC [13] But Rosaly Higgins, says that not all human rights are jus Cogens and therefore permit of no derogation UDHR admit no derogation [14]

IHL doesn’t have permanent international penal tribunal/ specific Mandate to prosecute grave breaches of IHL, prosecutions are national-based. The historical evidence shows that states are unwilling to implement the general convention and since the mechanism of protecting power remains key to implementation of GC a case study the acts of Government of Sudan to prohibit humanitarian actictivies to victims of NIAC, inter government human rights organizations may substitute for neutral states. Therefore regional intergovernmental human rights bodies appear to be the appropriate and logical institutions to serve as protecting powers cooperate with the parties to an armed conflicts and the supervise the application of the GC.

These human rights bodies also have the necessary autonomy and independence to integrate the norms of human rights, international law and IHL into one coherent, integral system, which protect the rights of the individuals in war and in peace.


4.4 Treatment Protected persons like Combatants, Civilians and Prisoners Of War.

Under this role IHL and Human rights complement each other, almost in every point. What IHL prohibit or guarantee is purely what human rights law does. All persons take place in conflict shall remain to have status of prisoners of wars .Any person took part in hostility not falling in the category of prisoners of wars and not recognized and benefit from GC IV, shall be protected by Article 75 of protocol 1

Protection of civilian and humane treatment of prisoners of war or those who fall not under that category is highly preached by IHL conventions and Human rights International instruments like UDHRA, ICSPR and convention against torture[15]. For is instance the case of Guantanamo treating prisoners of the so-called war on terror they way they do, is purely violations of human rights law and IHL. And both regimes should condemn such kind of treatment given to prisoners of war on terror. Human rights law remains essential in order to ensure their legal protection.
Legality of these self-help or Measures in relation to the right of recourse to force (Jus ad bellum) must be governed not only by UN-Charter but also human rights law

Jean Pictet[16] Says that internationally, can be put into one port deals with human law covering both law of armed conflicts and human rights law. To show the way they interplay Pictet formulated fundamental principles of human law, which include both IHL and human rights. For instance military necessity and the maintenance of public order must always be compatible with respect for the human person. Another principal common to both IHL and human rights is the right to of life of individual must be respected and her integrity, also the principle of torture degrading or inhuman punishment are forbidden by protocol I Art 75 and the 1984 convention against torture. Article 2 of P 11, 10 AND 75 all people must be treated equally. The protocol has a number of provisions for speed protection of women and children, which human convents do as well.

Oraa says, there are four rights that are non-derogable, these are right to life, the right to be free from torture and slavery and principle of non retroactive of penal laws.[17]
The principle is proper to the victims of conflicts (law of Geneva) art 27 para 3 of GC I and Art 64, Para 1 of A P I and Art 70 allow humanitarian and impartial relief actions, this is where the law of refugee comes in the victims of conflicts should be provided with an international protector once they no longer have natural protector
Terrorism acts can occur during peace time and like what happened in USA 2001 and 2008 in India and as well as during armed conflicts. Then IHL can apply only during armed conflicts and human rights law may apply during peacetime.







5.0 Interplay between IHL and refugee law

What is refugee law? Refugee law can be defined to be the branch of international law that deals with the people of have lost protection of their government and have left their homes due to well founded fear created by situations of violence. In 1951 International convention on the status of refugee was introduced.

Art 1 A (2) of the 1951 UN Convention relating to the status of refugees, Person who owing to a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or due to such fear is unwilling to avail himself of the protection of that country[18]
Approximately 1.5 millions Hutus mostly civilians refugees, Fled into Zaire in July 1994, this then created immense humanitarian crisis. Then UN Rwanda emergence office had to summon UN –Agencies and International organizations like ICRC for humanitarian assistance.

The interplay between IHL and international refugee law can mainly be traced when the conflicts produced displaced people. For instance the case of refugees situated on the territory of a country in conflict or on borders.
IHL conventions seek to protect and care of people during armed conflicts particularly those who lost the protections of contracted state at the same footage refugee law cares those who lost protection of their government due to fear of violence.

IHL provides proper treatment of civilians while refugee protects the displaced[19] People whom, before the beginning of hostilities were regarded as stateless persons or refugees under the relevant laws shall be protected persons within part II and III of GC IV.

IHL aims at protecting victims of armed conflicts. Internal displacement due to armed conflicts falls within the scope of IHL.IDPs being victims of armed conflicts are therefore protected by IHL.IDPs are protected in IHL largely as civilians as well protected by refugee law as people who lost protection of their government.[20]

Refugee law becomes useful to IHL particularly when they want to grant an asylum seeker a legal status as a refugee. They have to make sure that there is violence at the country of origin. In doing so refugee organizations like UNHCR and ICRC have to find them selves working complimentarily.

The complementarity can mainly be noted where branch of law become weak to meet it objectives or similar objectives. For instance Refugee law aims to see all people displaced during conflicts are well gathered and receive humanly treatments, but on the other hand Refugee law cant trace or get proper records of missing persons or family reunification without depending on IHL. (ICRC tracing Agency)

This coordinated approach is useful especially when it comes that one branch is weak on a certain issue. Refugee law complements IHL provisions stated in Geneva Conventions and additional protocols on the rights of civilians, in particular the displaced persons in time of violence.





6.0 Interplay between IHL and International Criminal Law

When it comes to the questions how to treat those who violates Geneva conventions then both National and Internationals criminal law comes in. Most of the time in war transformed some of crimes into legitimate forms of conduct and suspend the application of criminal law.

It is time of war and not time of peace that the most numerous and most serous violation take place and go un punished. The GC provide for imposition of period sanctions against person committing grave breaches of their provision and thus include both at local and international levels. This is how then IHL interplay with ICL.

The charter Article 6(c) formulation was, the 1st instance in positive international criminal law which specific forms of crimes against humanity were used but the notions of protecting civilians in time of war was historically well established by International regulation of armed conflicts.[21]
Crimes against humanity can be committed against civilian’s population; both ICL and the laws of war and customs of war can have direct response. Many war crimes are crimes against humanity and many crimes against humanity are war crimes. Justice without force is important, force without Justice is tyrannical. Justice without force is infringed because there is always the mean, one must therefore combine justice and force and therefore make strong what is rights and make right what is wrong B. Pascal provisional letter (1991).

The evolution of IHL can never discussed, without taking into concern criminal responsibility for instance individual criminal responsibility is the result of IHL development. It is form the charter of Nuremberg and Tokyo, that the IHL and ICL was found to be of every important to each other. IHL provide rules and regulation to be adhered during the time of conflicts but when the those rules are breached then ICL and it is outstanding body of enforcement comes and prosecute those who committed war crimes and other violations of international criminal law and IHL. ICTR, SCSL are recent development that has shown that ICL and IHL are inseparable. Most of the time IHL became source of ICL as most of the crimes in ICC Rome Statute originate from GC’S
Therefore the Nuremberg and Tokyo charter which intended to deal with violation of laws of war came to be useful tool for individual enforcement of ICL. The seeds of the charter crimes against humanity were planted in the Hague convention of 1899 on the Laws and customs of war and the 4TH Hague convention 1907.[22]

The ICRC has always supported the creation of an international tribunal with jurisdiction over the most serious international crimes. For the ICRC, an international tribunal has the capacity to act as a catalyst and as an incentive for national courts to fulfill their obligation to prosecute those who commit war crimes (see for instance ICTR and Gachacha courts in Rwanda). It therefore welcomed the establishment of the ICC in July 1998. The ICC operates on the “complementarity principle,” which means it will act only if domestic courts are unwilling or unable to do so.

The ICRC was very active in the preparatory work leading to the Rome Statute (Statute of the ICC) and took part in drawing up the Elements of Crimes that the States Parties adopted in September 2000. These Elements of Crimes detail the definitions of genocide, crimes against humanity and war crimes that the ICC Statute contains[23]The ICC is a permanent court with worldwide jurisdiction for trying individual charged with the most serious breaches of IHL, ICL and Human Rights law. (Art 8 of Rome statute)
The work of the ICC and that of the ICRC constitute alternative approaches to preventing IHL violations, approaches we see as complementary. While the ultimate objectives are similar, the tools are quite different. The ICC prosecutes and sanctions, whereas the ICRC promotes respect for IHL through confidential dialogue and persuasion.
In addition to having supported the establishment of the Court, the ICRC promotes the ratification and implementation of the ICC Statute through its Advisory Service. In practical terms, the ICRC uses the ICC Statute when assisting States in their efforts to adopt and implement effective domestic measures for the prosecution of war crimes.[24] One very positive element of the ICC Statute is that it includes quite a comprehensive list of war crimes, covering both international and non-international armed conflicts. This is the first time that such a list has been enshrined in an international instrument.
Security Council under chapter VII of UN Charter has Power to establish an international tribunal. Antonio Casses former President of ICTY expanded the traditional of establishment of such Tribunal by treaty was discarded as being too slaw. (Art 39,41 and 48 of UN charter) The Security Council through UNHCR was convinced that the massive flow of refugee and remnants of Hutu militias to neighboring country was the threat to International peace.[25] Therefore because Security Council was not legislative body, then it authorized the Tribunal to applying existing IHL applicable in NIAC’S, these are like Common Art 3, A.P II and others were the Genocide Convention and Nuremberg Charter (charter on military Tribunal 1945











7.1 IHL and International Environmental Law.
Military have deliberately harmed the environment as the wartimes strategy Thought the 24th century, the scope for destruction increased with development of weapons of mass destruction. This was evidenced during Vietnam war when wide spread use of chemical defoliants destroyed entire ecosystem and lead to public health concern in US and in Vietnam due to exposure of individual to the chemical used. This is ecological quench of armed conflicts (UNESCO)[26].

This needs another legal regime to mitigate military actions to contaminate water, air and soil. Also form large number of refugee who end up forming huge camps, hence environmental degradation as what happened in Tanzania refugees zones.[27] ICRC has once asserted that International Environmental Law remains generally applicable[28] during armed hostilities. This can mainly be referred to the case In ICTY.

Also Art 35(3) of AP I prohibits the employment of methods or means or warfare intended, or may be expected to cause widespread and severe damage to the environment. IHL and Environmental law prohibit any act that becomes a threat to environment including the use of weapons of widespread damage they as well prohibit the destruction of cultural objects.[29]









7.2 IHL and International Customary Law

According to the ICJ statute on of primary sources of International law is Custom as evidence of general principle accepted as law .The custom must be practice, usage which is required (opinion juris cive necessitates) That is practice must be carried out by the convictions. Indeed in the law of war, custom is to be found more in acts by states and non-states actors.
Therefore in IHL Baxter Paradox is mainly applicable. This Paradox states the rationale behind the practice of non-party states is more reliable in ascertaining custom, because the party states may be following a practice in pursuit of treaty obligation.[30] But in IHL, according to Meron the formation of custom in humanitarian fields, the practices of parties as well as non-parties apply [31]

Jus cogens and Customary international law have great role to play in IHL.Genocide is now universally deemed as jus cogens and it is violations imposes on states certain duties and obligations Erga Omnes [32]Nicaragua case[33] simultaneously strengthens the importance of practice as one two elements necessary for the formation of international law.







8.0 Conclusion
Despite the fact that IHL develops and new instruments emerge every year, the complimentarity between IHL and other legal regimes can never be avoided. Contemporary or new emerging types of conflicts and other serious violation of human rights and laws of war need a multiple approach to combat. Interplay between IHL and legal regimes like ICL, refugee law, International customary law and international environmental law are of every crucial point in determine which and how deferent legal regimes can be suitable to end impunity and maintain peace and justice.













9.0 References:
Bassiimi,.Cheri M. (1992) Crimes Against Humanity in International Criminal Law Mertinus Nijhoff
Cerna,Christina .Human Rights in armed conflicts implementation of international humanitarian law norms by regional intergovernmental human rights bodies
Frits, K Yves, Sandoz (Ed) Implementation of international humanitarian law Martin Nijhof Publishers..(1989).
GIA.D Draper (1971) the relationship between human rights regime and the law of armed conflict, 11YBHR: 19.
Hewif, W.E. (1971) Respect Of Human Rights In Armed Conflicts. at 43 (in 4 NYV).
Higgins, R (1971). Derogation under human rights treaties BYIL: 281 at 282. Dunant, Hendry (1986) .A Memory of Selferin
ICRC (19990.Hand Book For Parliamentarian. Respect for International humanitarian Law No: 1
K. Suter, (1984) An International law of Guerilla warfare: The Global Politics of law Making London, P.3p

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua vs. USA). Merits, ICJ Report 1986 (Judgment of the 27 June)
Macalister, Smith Peter. (1985) International Humanitarian Assistance, Disaster, Relief Actions in International and Organization.Martinus Nijhoff.
Meron, T. (1987) Human Rights and Humanitarian Law. Growing Convergence. Cambridge
_________(1987) human rights in International strife: Their International Protection.
__________(1989). Human Rights and Humanitarian Law Norms. Oxford

OCHA (1999) Hand Book For Applying the Guidelines Principle of Internal Displaced Persons (ADP’S).
Oraa, J. (Ed). Human Rights in State of Emergence in International Law. Clarendon Press, Oxford, 1996
Paul, J.Monarrella (2000) Justice in Africa, Rwanda Genocide. It’s Courts and The UN Criminal Tribunal, Ashgate.Florida USA.
Pictet, Jean (1975). Humanitarian law and the protection of war victims. Leyden: Sijthoff.
Pictet, Jean (1985). Development and Principles of International Humanitarian Law. Martinus Nijhoff
.
__________ Commentary Vol. III (1960). 20
___________ Commentary Vol I (1952) at87
___________ Commentary Vol IV (1952) at 87

_________(1987) human rights in International law
Report of the Secretary General. A/8052, respect for human rights in armed conflicts 18 Sept 1970
West Arhur.Enviromental Protection from Wartime Damage. The role of International in N.P Gleiditsch, Ed., Conflict and Environment (1997) Pp 535-38
.


[1] ICRC Publications.
[2] 1949 Geneva Conventions (I – IV)
[3] 1977 1st and 2nd Additional Protocols to GCs
[4] 1980 convention on prohibitions or restriction on the use of certain weapons, which may be deemed excessively injurious, or to indiscriminative effects. Geneva 1980
[5] A P III on the use of ICRC Emblem
[6] Dunant, Hendry (1986) .A Memory of Selferino.
[7] ICRC (1999). Hand Book For Parliamentarian. Respect for International humanitarian, p 11
[8] Frits, K. Yves, Sandoz (Ed) Implementation of international humanitarian law.
[9] ICJ, Rep.1970, 34 at 32 .p 235.
[10] Meron, T. (1987) Human Rights and Humanitarian Law. Growing Convergence. Cambridge
[11] Cerna, Christina M. Human Rights in armed conflicts implementation of international humanitarian law norms by regional intergovernmental human rights bodies .p32

[12] Ibid
[13] Report of the Secretary General. A/8052, respect for human rights in armed conflicts 18 Sept 1970

[14] Higgins, R (1971). Derogation under human rights treaties.
[15] The convention against torture The Convention Against Torture and Other Cruel and Inhuman and degrading treatment or Punishment of 1984
[16] Pictet, Jean (1985). Development and Principles of International Humanitarian Law.
[17] Oraa, J. (Ed). Human Rights in State of Emergence in International Law.
[18] Art 1 A (2) of the 1951 UN Convention relating to the status of refugee
[19] The UN guiding principles on Internal displacement
(Art 2) "Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflicts, situations of generalized violence, violations of human rights or natural or human made disasters and who have crossed an internationally recognized state border

[20] OCHA (1999) Hand Book For Applying the Guidelines Principle of Internal Displaced Persons (ADP’S).

[21] Bassiuni, Cherif M ( 1992) Crimes Against Humanity in International Criminal.
[22] The Charter Of The International Military Tribunal For The Trial Of The Major War Criminals (1945) Article 6 And 5 Of Tokyo Charter.

[23] ICRC Publications
[24] Source ICRC
[25] Paul (2000) p 42
[26] UNEP (2002) International Environmental Law, (3rd Ed) Page 407
[27] See. Arthur, Westing. Enviromental protection from wartime damage.
[28] Agenda 21,para.39.6
[29] 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954
[30] Kwakwa, Edward. (1992) The International Law of Armed conflicts: Personal and Material Field of Application .M.N
[31] Ibid p 33
[32] Advisory Opinion of the International Court of Justice on Reservation to Genocide Convention 1951 ICJ.15
[33] Nicaragua vs. USA. Merits, ICJ Report 1986 (Judgment of the 27 June)

KAULI ZA VIONGOZI DHIDI YA WAFUGAJI

Wafugaji ni wavamizi warudi walikotoka?Je kauli hizi ni saw?
Mussa Juma.
KATIKA siku za hivi karibuni, wafugaji wamekuwa wakiondolewa maeneo mbalimbali nchini, kwa kuitwa wavamizi na kutakiwa warudi walikotoka.
Kauli za kuwafukuza wafugaji hawa, zimekuwa zikitolewa na viongozi wa ngazi za juu serikani hadi wa za chini hali ambayo imekuwa ikizua migogoro katika maeneo mengi.
Matamko ya viongozi hawa yanatokana na ukweli kuwa wafugaji kutoka mikoa ya kanda ya kaskazini na ziwa wamesambaa katika maeneo mengi nchini kusaka malisho. Wafugaji wa Kimasai, Kibarbeig na Kisukuma ndiyo ambao kwa kiasi kikubwa wamekuwa wakifukuzwa katika maeneo mengi kwa maelezo kuwa ni wavamizi.
Baadhi ya maeneo ambayo wafugaji hao wanafukuzwa kwa kuitwa wavamizi na kutakiwa kurudi walikotoka ni Kilosa, Mvomero mkoani Morogoro, Bunda mkoani Mara, Bagamoyo mkoani Pwani, Loliondo mkoani Arusha na maeneo ya Mikoa ya Rukwa na Iringa.
Hata hivyo, wakati wafugaji hawa wakifukuzwa kila eneo wanalokwenda bado hakuna utafiti wa kina ambao umefanywa na serikali na kubaini chanzo cha kuhama katika maeneo yao ya asili.
Nahisi haitaki kuwa wazi juu ya walikotoka, inajua kuwa ndiyo iliyowaondoa katika maeneo yao.
Kwa mfano, kuanzia mwaka 1959, wafugaji wa Kimasai walianza kuondolewa katika maeneo yao Serengeti ilipoanzishwa na kuwa Hifadhi ya Taifa baadaye. Wafugaji wa Kibargeig nao waliondolewa wilayani Hanang' miaka ya 1970 na kuanzishwa mashamba makubwa ya lililokuwa Shirika la Taifa la Kilimo (Tafco).
Haikuishia hapo, miaka iliyofuata wafugaji wa Kisukuma waliondolewa maeneo ya Maswa kupisha kuanzishwa kwa pori la akiba. Pia wafugaji waliondolewa Same na Mwanga na kuanzishwa Hifadhi ya Mkomazi.
Wafugaji hawa pia waliondolewa maeneo ya Tarangire, Manyara, Ruaha na kuanzisha pia Hifadhi za Taifa na kihistoria maeneo yote haya ambayo sasa yana wanyama yalikuwa ya wafugaji.
Licha ya kuanzisha hifadhi, pia upanuzi wa mashamba makubwa na ongezeko la watu kwenye maeneo mengi nchini, kumechangia kuwasukuma wafugaji kutoka katika maeneo yao ya asili ili kusaka malisho. Ufugaji huu wa Tanzania hauna tofauti na ule wa asili wa maeneo mengine duniani, kama Sudan, Ethiopia, Uganda Kenya na nchi nchi za magharibi.
Wafugaji wote wa asili wana tabia zinazofanana, wakati wote hutembea kutafuta malisho na maji na hii inatokana na kutambua kuwa kukaa sehemu moja kunasababisha athari za mazingira.
Wafugaji hata katika maeneo yao ya vijijini wamekuwa na tabia ya kuhamahama ili kuhakikisha wakitoka eneo moja wanapisha majani kuota. Ufugaji wa aina hii upo Wilaya ya Simanjiro ambako kuna maeneo ya Kata kama za Terati, Sukuro, Naberera na nyingine ambazo wafugaji hujipangia wakati wa kwenda kulisha mifugo.
Jambo hili la kuhamahama, limekuwa likitumiwa vibaya na wakulima. Wafugaji wanapohama, wakulima wamekuwa wajikatia ardhi na hata kuimiliki bila kujua desturi na mila za wafugaji wa asili.
Serikali inaweza kumaliza migogoro ya wafugaji na kufuta kauli za viongozi za kuwaita wavamizi, warudi walipotoka au kuwataka wauze mifugo yao kwa nguvu kama ilivyotokea Kilosa na Rukwa. Inaweza kutenga maeneo makubwa ya malisho ya mifugo na kutangaza kuwa ni ya wafugaji wa asili kwa kuyaanzishia ranchi ambazo licha ya kusaidia wafugaji kutohamahama pia itasaidia kubadilisha mifugo yao ya asili.
Maeneo mengi ya wafugaji hayana majosho, mabwawa na hakuna miundombinu ambayo inayoweza kuwafanya wafugaji kuaa bila kuhama. Ni kutokana na kuwekewa mazingira ya kutothaminiwa, wanaendelea kufilisika. Miaka 15 ijayo athari za kauli za kuwaita wafugaji wa asili ni wavamizi na kuwataka warudi walikotoka zitaonekana.
Athari za wazi kabisa ambazo zitawagusa watu wengi ni kupungua kwa nyama katika maeneo mengi nchini na hivyo kupanda bei maradufu. Naamini hii itawaathiri wananchi wa kawaida.
Viongozi waliopewa dhamana katika sekta ya mifugo wanapaswa kuacha kuhubiri siasa na badala yake waanzishe mkakati kuwasaidia wafugaji popote walipo ili wafuge kisasa badala ya kuwafukuza.
Madhara ya kutothaminiwa wafugaji yapo wazi. Hivi karibini tumeshuhudia mamia ya mifugo ikipotea wilayani Kilosa, makazi ya wafugaji yakiteketezwa kwa moto Loliondo huku maelfu ya mifugo ikiondolewa.
Wilayani Bunda kuna operesheni inayoendelea kuwaondoa wafugaji ambayo sasa imefikia hatua ya kutisha, kwa watoto wadogo wa wafugaji kufungwa kwa tuhuma za kuingiza mifugo eneo la pori.
Mkuu wa Wilaya ya Bunda, Chiku Gallawa naye amejiunga na kauli za viongozi wenzake kuwa kuna wafugaji wavamizi Bunda na sasa lazima waondoke. Kauli hii ya hivi karibuni inapingana na ukweli kuwa ukame uliopo sasa na kuanzishwa kwa pori la akiba la Grumet na kuwepo Hifadhi ya Serengeti katika wilaya hiyo kumepokonya maeneo mengi ya wafugaji.
Tuanze sasa kuwasaidia wafugaji ili waweze kufuga kisasa, kauli za kuwafukuza kila mahali wanapohamia na kuwataka warudi walikotoka si sahihi. Hivi wakiamua kurudi Serengeti, Maswa, Grumet, Ngorongoro na Hanang nani atawadhibiti?
Mussa ninaungana nawe moja kwa moja.
0754 296503 Email mussasiwa@gmail.com.
Tuma maoni kwa Mhariri

SPIKA SITA SHUJAA

SPIKA SITA SHUJAA WA DEMOKRASIA BUNGENI WANAOMPINGA NI MAADUI WA NCHI.
“TUNAHITAJI SPIKA ASIYEKUWA NA CHAMA”
Kumekuwa na taarifa katika vyombo mbalimbali vya habari juma hili juu ya wajumbe wa halmashauri kuu ya Taifa ya Chama Cha Mapinduzi (CCM) na wajumbe wa kamati kuu ya Chama hicho (CC) kutaka kumwengua uanachama wa CCM na kumvua madaraka spika wa bunge la jamhuri ya muungano wa Tanzania Samwel Sita ambaye pia ni mbunge wa Urambo Mashariki kwa tiketi ya chama hicho.

Sababu zilizoelezwa na wajumbe hao ambao hata hivyo wengi wao hawakutajwa moja kwa moja majina yao kutokana na usiri wa vikao hivyo vilivyofanyika Dodoma,ni spika kuishambulia serikali kwa hoja ya kupambana na ufisadi huku akikidhoofisha chama (CCM),hafuati taratibu za mabunge ya jumuiya ya madola huku wengine wakitoa hoja kwamba spika Samweli Sita amekuwa akilitumia bunge kwa kuingilia hoja kishabiki badala ya kuviacha vyama vya siasa vipambane kwa hoja.

Wajumbe wa vikao hivyo vya juu vya CCM walionukuliwa na vyombo vya habari kumshambulia Sita kwa jazba walidai pia kuwa ana kundi lake bungeni linalokadiriwa kuwa na wanachama kumi na mmoja maarufu kama first eleven ambao amekuwa akiwapanga kutoa hoja zinazowalenga watu fulani na pia kuikosoa serikali bungeni kwa malengo binafsi.

Kufuatia malumbano haya yanayogusa hisia za watanzania na hasa kwa kuzingatia umuhimu wa uwakilishi wa wananchi katika chombo muhimu kwa utungaji wa sheria na hata utetezi wa maendeleo ya kiuchumi,kijamii na kisiasa kituo cha sheria na haki za Binadamu (LHRC) kinalaani hali hiyo ya kumsakama spika wa bunge kwa tuhuma mbalimbali kwani kwa kufanya hivyo ni sawa na kuingilia vipengele vya sheria kama ibara ya 100 ya katiba ya jamhuri ya muungano wa Tanzania inayotoa fursa kwa wabunge kuchangia hoja bungeni bila kuwekewa mipaka.

Wabunge wote wana uhuru wa kusemachochote bungeni kwa maslahi ya watanzania wanao wawakilisha.Spika kwamfumo wa Westminster ambao ndio bunge letu linaufuataanapaswa kutokuwa na upande wowote bungeni, na jukumu lake hasa likiwani kusimamia mijadala yoyote inaendana na katiba ya nchi.Na hakunakikundi au sheria yoyote itakayoondoa uhuru huo.
Kwa mara ya kwanza katika historia ya bunge watanzania wameshuhudia bunge likisimama kama chombo kitetezi kwa wanyonge na maslahi ya taifa kwa kutetea hoja zenye manufaa kwao kama vile mikataba ambayo hulenga kuwanufaisha wachache na kuliingizia hasara taifa kwa mfano mkataba wa Richmond,sakata la Buzwagi na mengineyo.

Katika haya tumemshuhudia spika Sita akitetea haki ya wananchi kama spika na aikitumia uhuru wake wa kutoa mawazo kama Samweli Sita(binafsi).Hoja za kumpunguzia makali Spika zinakuja baada ya bunge kuonekana msumari kwa wanaotaka kutumia vibaya fedha za umma,hili linatoa tafsiri kwamba amegusa penyewe na kwamba wachache wenye maslahi yao binafsi wanataka kuendelea kujinufaisha.

Ni rahisi kujiuliza kwanini spika aliyetangulia Pius Msekwa hakukumbana na haya? Kwa hoja hizi za wajumbe wa NEC na CC inaonyesha wazi kwamba Msekwa ambaye kwa sasa ni Makamu Mwenyekiti wa CCM bara alilinda maslahi ya wachache wenye lengo la kujinufaisha kwa kupitisha matakwa yao bila hata kuruhusu yahojiwe na wabunge wenye haki kimsingi kufanya hivyo kwa maslahi ya taifa bila kujali itikadi za vyama vyao.

Katiba ya jamhuri ya Muungano wa Tanzania inaweka bayana kwamba ili mtu awe mwakilishi wa wananchi katika bunge lazima atumie chama fulani cha siasa kilichosajiliwa.Ndiyo maana bunge letu limesheheni wabunge Kutoka vyama mbalimbali lakini hiyo haitoi fursa kwa bunge kuwa la chama fulani kama CCM hata kama kinaongoza kwa idadi ya wabunge kwani bunge ni la watu wote kwa maslahi ya waatanzania wote wenye itikadi mbalimbali za siasa dini na mengineyo.


Kwa mujibu wa taratibu za uongozi wa kikatiba (Constitutionalism) pamoja na democrasia ya vyama vingi, Mkutano wowote wa chama hauna uwezo wa kumuwajibisha mbunge au Spika wa Bunge kwa maamuzi au matamko yaliyofanyika ndani ya Bunge.Bunge lina uhuru na wabunge wanakinga kwa shughulizi zozote ndani ya bunge ilimradi wasiende kinyume na katiba.Hivyo basi NEC CCM na kamati kuu (CC), imekiuka katiba ya nchi kwa kuwawajibisha wabungeakiwemo spika kwa sababu ya umakini na uwazi wao wanapo kuwa bungeni.Uhuru na kinga kwa wabunge wanapokuwa bungeni haiwezi kuondolewa na sheria yoyote ile isipokuwa bunge lenyewe na katiba ya nchi.

Je CCM wamepata wapi mamlaka ya kuwawajibisha wabunge na Spika aliyechaguliwa na bunge lenyewe tena la vyama vyingi? Tokea lini chama kikawa na mamlaka ya Kumuondoa spika wa bunge?
NEC CCM ,imekosea na iwaombe radhi watanzania wote, kwa kutokujalimichango ya wabunge hao bungeni pamoja na kutokujali misingi ya kidemokrasia na kikatiba na utawala wa sheria.

Kwa hoja hizo hatuna budi kumpongeza spika kwa ujasiri wake wa kutanguliza mbele maslahi ya taifa na kumpa nafasi nyingine aongoze bunge na Si
kumkejeli,kumshambulia, kumzodoa na kumtisha.

resource baesd conflicts in tanzania

Download the original attachment

UNIVERSITY OF DAR ES SALAAM
SCHOOL OF LAW
(FORMERLY FACULTY OF LAW)
LW 400: LL.B. DISSERTATION
TOPIC: RESOURCE BASED CONFLICTS IN NORTHERN
TANZANIA: THE CASE OF SONJO/ BATEMI AND MAASAI OF
NGORONGORO.
NAME:
PAUL ONESMO
REG: NO.
53890/T.2005
SUPERVISOR:
DR. KHOTI CHILOMBA KAMANGA
Y EAR .
2008/2009
FOURTH YEAR COMPULSORY RESEARCH PAPER SUBMITED IN
PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE BACHELOR OF
LAWS DEGREE OF THE UNIVERSITY O DAR ES SALAAM.
1
Page 2
CERTIFICATION
The undersigned certifies that he has read and hereby recommends for examination
by the University of Dar es salaam the dissertation titled “Resource based conflicts
in northern Tanzania the case of Sonjo and Masaai of Ngorongoro” in partial
fulfillment of the requirements for the award of degree of Bachelor of laws (LL.B)
Of the University of Dar es salaam.
. .………………………………………………
Dr. Khoti Chilomba Kamanga
(Supervisor)
Date…………………………
2

DECLARATION
I, PAUL ONESMO, declare that this dissertation is my own work and it has not
been presented and it will not be presented to any other university for similar or any
other degree award.
Signature……………………….
Paul, Onesmo
( Candidate )
COPYRIGHT
This dissertation is copyright protected material under the Berne Convention, the
Copyright and Neighboring Rights Act of 1999 and other international and national
enactments on intellectual property law. Production by any means, in full or in part,
without the prior written permission of the Directorate of Undergraduate Studies, on
behalf of the author and the University of Dar es salaam, is strictly prohibited,
except for short extracts in fair dealing for research or private study, critical
scholarly review, or discourse with an acknowledgement
3
Page 4
ACKNOWLEDGEMENTS
Despite the great effort I sold to this peace of work, there are few people invariablywere ready to see the success of my work. The author is most grateful to the people who have contributed in one way or the other to the conception, preparation and eventually production of this work. Before all, my special thanks should go to my beloved wife Joyce Japhet Humbe for her moral and material support during my fieldwork, she made my trip to conflicts vicinity possible and she was tolerant of my frequent absence at home. I should as well cast my thanks to my beloved supervisor Dr Khoti Kamanga for his
constructive criticism and friendly supervision that made me to enjoy my work.
Not easy to mention all but the following, also had great role to make my work of high quality. Suzan Rhorer from USA for her moral and financial support, lecturer of law Makumira university Mr Elifurah Laltaika , Program Officer OXFAMTanzania Mr William Olenasha, Melau Alais , Legal Officer Ngorongoro DistrictMr Tluwah Otai, Chairman Ngorongoro District Council Hon S. Soinda , Ngorongoro Police Commissioner Mr. Mponjoli , Coordinator PINGO’S FORUM Mr Edward Parokwa, DC.Ngorongoro Honourable Jowika Kasunga.
4
Page 5
Ultimately, I have special thanks to almighty God for his love and care, fo
for without his care and guidance nothing would have been achieved.
DEDICATION
This dissertation is dedicated to my lovely parents Paul Kasale Olengurumwa and
Priscilla Ngurumwa for love and parental care they showed me before their Passing on .May their souls rest in peace.
CHAPTER ONE
1.0 INTRODUCTION
Tanzania is increasingly facing resource based conflicts mainly involving herders1 on one hand and farmers on the other hand. Such conflicts sometimes involve herders themselves (Intra-group), farmers or herders and investors. Morogoro, Mbeya, Arusha and Mara regions are notorious for such conflicts because the Ancholi, Wanchari, Sonjo and Maasai live and lead conflicting livelihoods. This research focuses on Ngorongoro District in Arusha Region where the sedentary Sonjo/Batemi and Maasai have historically been in confrontations.
Ngorongoro District is famous both in Tanzania worldwide due to variety of wildlife species. It is also in this District where the Ngorongoro crater which has been categorized as the world heritage sites2. The District divides into three Divisions, which are Loliondo, Ngorongoro, and Sale.
The District has a population of 129,000 people according to the 2002 census, 59% of the District's landmass falls within the famous Ngorongoro Conservation Area, which was established in 1959 to deal with matters related to the conservation of wildlife resources, promotion of tourism and the development of indigenous Maasai pastoralists living in the area.
Loliondo Division, which is divided into a number of wards and villages, is inhabited Mostly by Maasai who are traditionally pastoralist but who now practice farming as well. The Batemi (commonly known as Sonjo) and other groups also live in the area and they are mostly farmers even though they also keep domestic animals. The Division is made up of the villages of Loliondo , Sakala, Ngwarrwa/Enguserosambu, Oloirien/Magaiduru, Soitsambu, Ololosokwan, Oloipir, Arrash and Maaloni.
As for Sale division, most of its residents are agro-pastoralist. The Division is made up of the villages of Tinaga, Mgongo, Kisangiro, Samunge, Yasimdito, Digodigo, Malambo, Piyaya, Pinyinyi and Engaresero. The three Divisions are characterized by differences in natural resources endowments, modes of production, the history and cultures of their inhabitants. There are very complex and hostile socio-economic and political relations between Maasai and the Batemi of the Sale and Loliondo Divisions.
The ethnic relationship between Maasai and Sonjo has historically based on competitions. The utilizations of natural resources have been complimentary, the social activities and beneficial economic co-operation between them are as follows : the vital barter exchange of food as women conduct frequent trade between the communities, Maasai women frequently participate in Sonjo rituals and request from Sonjo priests3 .

The problem grew bigger at the time of making boundaries and formalization of village land in the Loliondo Division. However, at the same time we have to bear in mind that this problem was on track one century ago4. It is therefore misleading to brand name findings of various scholars in 1990’s 5as being the root causes of the problem; rather they are simply factors that facilitate the development of the problem.
Therefore, an assessment of the magnitude of the problem reveals more political and legal struggles with ecological reference. The conflicts as stated earlier are either Intra-group (Maasai vs. Maasai) or Entra-group (Maasai vs. Sonjo), for instance 2 years ago there was a conflict between Maasai clans Loita and Purko in Soit Sambu Ward mainly due the fact that great part of their land have been grabbed by government and granted to outsiders like United Arabs kings from Dubai; Brigadier Mohammad Ally and other companies like Cattle Products Ltd from Kenya and the Tanzania Breweries limited Company (TBL).
Various community meetings were conducted to settle the dispute but no sustainable solution was found. Before a brief of time an order from Ngorongoro District Authority to nullify the certificates of occupancy offered to Loliondo villages in 1990’s.And declared those villages to be resurveyed. Then again worsened the dispute between Sonjo and Maasai.
The rivals of ethnic animosity, tried to end their cattle and land disputes when 25 leaders from each faction signed a peace accord brokered by the Arusha Regional Commissioner, Mohamed Babu in Collaboration with Ngorongoro District Commissioner, Mr. Assey Msangi, District Executive Director (DED) Mr. Nicholaus Kileka, tradional leaders and experts from the Irish Embassy6 . However, with all those efforts still the problem continued and expanded to great magnitude.
1. 02 OBJECTIVES/JUSTIFICATIONS
This Research aimed to find out the role of laws and national policies in the said conflicts. It also aims at studying why the problem has acquired a persistent nature and why the Government has left the problem unattended for all those years. This research tried to find out, where these fighting groups get small firearms used during the conflicts. The research also addressed the case of illegal immigrants, as it has been associated with the conflict.7
The legal implications of the findings will help the policy and law enforcement organs to have the knowledge and insight of the problem. Such findings will also create awareness to people as to what is taking place in Ngorongoro. In the end, the community will understand sources of conflicts so that possible conflict resolution strategies in areas of heterogeneous communities with plural and land tenure systems will be suggested.

1.03 Statement of the Problem.
The problem has many causes. These are like poor management and
Administration of land ethnic hatreds; scarcity of land and population growth;
Diversification of livelihoods; and the role of politicians and the government bureaucracy. These are some of the causes according to various researchers’ findings. Therefore, the problem has never been looked in legal perspectives.
The main problem in Tanzania is ethnic and resource based between herders and farmers and the situation takes another shape as most of the time even pastoralist themselves have been in hostility. The disputes have been associated with land matters by many writers.
Sanna Ojalammi of Helsinki University8 in his work on semi arid parts of Northern Tanzania has shown that the dispute in Maasai and Sonjo land has relation to land dispute. Being a geographer, he tried to address the problem basing on properties in the changing geopolitical and economic system on varying geographical and historical scales.
The main problem that this research dealt with is the recurrent nature [Endemism] and over growing of these disputes in Ngorongoro. The conflict breaks almost every year and its magnitude became bigger when the Somali and Loita (Maasai from Kenya)9 immigrants took part10. To add salt on the wound, types of arms used are not expected to be used in a local conflict of this nature. Some of the said firearms include SMG, AK 47, RPG, LMG, and Rifle. These conflicts result into death of many people, destruction of their homes and properties like burning of crops and many people women and children ran away from their homes.
The then Ngorongoro District Commissioner Aseri Msangi11 and the former Ngorongoro MP, Mathew Taki ole Timan admitted that the conflict had eventually reached the great intensity of conflicts by considering the type of weapons being used. One of the victims of war also admits the same.12 It therefore appears that the problem receives many new players every year and make it grow bigger and bigger.
The District is rich of natural resources but surprisingly the people on the land still live in extreme poverties. This is what Ragna Tarvick and others baptized it as Resource curse.13They found that resource curse represents enormous impediments to development, yet it is important to understand that natural resources is not a problem, rather it is lack of good governance and democracy. Therefore remedying this institutional failure Ragna14 says we need change of law and practice but doesn’t require huge resource investment.
Despite several attempt to end the animosity still the problem breaks out often. Therefore the endemic nature of this problem with no doubt matured into legal problem to be researched. Only recently it was reported by Kuilikoni News paper of 22/04/2008 that one person named Lesingo Nanyoi (34) was brutally shot by Police Officers in resource based conflict with a foreigner investing on their land at Soitsambu Ward.15. Therefore the problem manifested that there are legal issues to be doubted with, as the combination of causes fueling the problem. The situation then manifests that there are laws or policies tend to collide each other, hence leave people into conflicts. For instance the Loliondo Division villages are recognized by Land laws and Local Government laws but Wild life laws and Policies recognize them as Game controlled area (LGCA).
The following questions were guidelines during research activities.
How does the law and National Policies respectively contribute to these endemic conflicts in Tanzania?
How do the issues of borders make the problem persistent?

1.0 4 BACKGROUND OF THE PROBLEM
Parties to the conflict believe that, the problem could have been contained if Government was serious and firm in addressing the problem. The Maasai pastoralists who constitute the majority and the Sonjo agro-pastoralists who constitute the minority, among other groups, inhabit the District. The two groups have a long history of hostile relations and tensions.16 The history behind the existing conflict goes back to 1975 when the most intense fight between was first recorded. Many lives were claimed in a fight that was triggered by cattle thefts. The conflicting situation was temporarily arrested in the late 70’s when the late Premier Edward Sokoine mediated the same by using traditional means of conflict resolution. 17
The conflict between the two sides gathered new momentum after 1990, when a highly disputed demarcation and issuance of title deeds to some villages, was done by Arusha Development Diocesan Organization (ADDO)), Korongoro Integrated Peoples Oriented to Conservation (KIPOC), International Union for Conservation of Nature (IUCN) and Serengeti Regional Conservation Strategy (SRCS).18 It however blew in 1995 in an occasion where a Maasai young man stole a shoe of a Sonjo trader in a local market, an incidence that quite surprisingly exploded in bloodshed of a magnitude not seen to date.
While the problem was not yet solved , the village land at Olososokwan with a long term licensed permit was granted to private non Tanzania in 1993 from United Arabs Emirates (UAE). 19 Then, citizens living in Loliondo Game Controlled Area (LGCA) created an open conflict due to the indigenous land dispossessions. Several debates were made questioning the property right of the Indigenous. This was followed by complains that the Government has not given the conflict its due weight to end it.
The co – existence of the two groups of people have always reflected certain ambiguity ranging from hostility to administration surrounding forest of Loita hills. Ole Nangoro in his book20 said that, the land dispute prevalent in Loliondo and Sale division occurred in the borderland area or in wildlife conservation area, such as Loliondo game controlled area, the most heavy violent disputes took place from 1980`s, involving heavy raiding, theft, by armed bandits destruction of homes, property and death of many.21
1.05 LITERATURE REVIEW
The field seems to be new to many writers but in the course of this readings I have managed to visit various publications that correlate to this matter and managed to find few authors as follows.
Sanna Ojalammi 22 deals with specific land disputes, which took place in 1990 in the Loliondo and Sale Divisions of Ngorongoro. The author being the geographer shows that territoriality, boundary, property and relations of power in geographical space as being the main reasons for the problems. He further opines that the reason behind the problem is the lack of communal land rights since the existing one is based on the English property law systems. However, as stated earlier on, these cannot be the root causes of the problem since the problem started many years before those transformations.
On his part, Shivji23 propounds that from 1990’S lands disputes have become common in Tanzania due to poor management of land matters.
Territoriality is an important part of social relations and implies the existence of equal social relations on deferent geography scales propounded by Holloway24. Therefore this defines human territoriality within this study as an attempt to effect influence or control actions, interactions (of people, things and relationship) by asserting and attempting to enforce control over specific geographical areas. Therefore what I noted is how this principle is applied or enforced sometime Government used it as the weapon to grab the land of the poor.
Blomley25 is of the opinion that law has a geographical aspect because it is formalized, implemented and enforced within a specific context. Generally law and property are both geographical and political. This is an assertion by Mustafa26 who says that law and state apparatus are inextricably linked in the process of production of social special patens of access to resources and empowerment of certain social agents in the process
Blomley 27 says that state has a legal monopoly over the land territory through legal enactments. In principle, law should provide tools for administrations and judicial procedure to protect the land rights.
The study shows the multiple legal situation in Tanzania, whereby land and resource property has accommodated notions of private, common /collective or granted law in land ownership in the beginning of the 1990’s. State law also lagged decades behind states policy changes. Tenga, 28 went on saying that changes in law and property have taken place with force and violence ever since the colonial time example the land ordinance 1923 remodified and re- co -structuring the local systems of customary land tenure from 1921 on wards.
Peter Maina29 says the 1997 Tanzania Investment Act has some glaring weakness like liberation of economy hailed as policy that will open avenues through which the local and foreign investors would walk together to prosperity but this has not been achieved because the law is silent on the joint ventures and obligation to investors.
Lane’s study (1991)30 shows that the disruption of the Barbeig people’s land use and their pastoral economic was due to allocated lands grant to National Food Cooperation (NAFCO) and Canada Tanzania wheat Programme.
Other writers like Potkanski31 argued that Sonjo and Maasai dispute was due to competitions over water, he made a study and found the resource based conflict between the two hostile group. Mbonile32 with the case of Pangani Basin says that immigrations of people should be taken as the major cause of resource based conflicts. 33
Mustafa34 argues that law can be contingent, political and contestable often perpetuating and legitimizing exploitative and oppressive geographies of social power.
Some people have translated to mean that there was no need to respect boundaries and it was great incentive to lawlessness. These local boundary problems seem to be maximized by conflict between customary law and land law.
Babiker 35 says the existing policies and legal institutional framework were put in place in 1950s and the tensions between the state legislations in Sudan and customary land regimes and continual grabbing of land and displacement of pastoralists was leading for conflicts among pastoralists, commercial farmers, sedentary farmers and state security forces.
1. 06 HYPOTHESES
The reasons behind the problem seem to be the state intervention by grabbing the land, imposing hard and unknown laws, squarely with unfair formulated policies to majority. Citizens from the grass root are not involved in policy making.
The Overlapping and failure of the following laws around and within the disputed areas, “the Local Government Laws, Forest Laws, Land Laws, Conservation Law, Environmental Law Wildlife Laws and Laws of Immigrations” manifested to be key players to the problem.
The rights to exercise permanent sovereignty over natural resources have been put in jeopardy. The parasitic stratum between Investors through Government manifests how Natural resource curse play a role to endlessly resource based conflicts in Tanzania and Africa in general.

1.07 METHODOLOGY
The case study area was the Sale Division and Loliondo Division in Ngorongoro district. This study has been substantively selected due to the following reasons. The area has been historically facing the dispute between Maasai and Sonjo/Batemi and sometime Maasai themselves. The following villages are victims of conflicts. Loosoito, Malon, Eyasi/Mdito(Sonjo), Kisangoro( Sonjo) ,Mughole (Sonjo) and Nga’rwa. The dispute most of the time breaks along the border land areas of these villages and wildlife conservation area like Loliondo Game Controled Area.
Substantive field research was conducted to generate primary. Participatory methodologies were employed, such as interviews, questionnaire, and story telling and group discussion. The field work meant to meet Government officials, communities and civil society operating in the area. These methods have been selected because of the nature of the area and people. Sometime you need to meet elders and have group discussion with them and have their testimonies as they have long experience of the conflicts, questionnaires were directed to Police officers, leaders and district council officers. Library research was used as another method of collecting data, libraries visited including University of Dar es Salaam libraries.

CHAPTER TWO
2.00 AN OVERVIEW ON THE LAWS AND NATIONAL POLICIES RELATING RESOURCE BASED CONFLICTS IN NORTHERN TANZANIA.
2.01 Introduction
Policies and laws are the tools that a society, through the institutions of Government, use to regulate the use, management, and ownership of its resources. It is important, however, to distinguish between the purposes and functions of a policy, on the one hand, and a law, on the other. A policy describes the objectives and aims for a given sector such as land, education, health care, etc. A policy describes how the management of a sector will be organized, what roles different stakeholders will play, and the principles that should govern decision-making.
Laws determine the rights possessed by different institutions and individuals. Laws provide the penalties for violating their provisions and provide guidance for courts to enforce them; laws also restrict any kind of illegal practice. Courts in terms of interpreting laws, by contrast, can only use policies.
At the same time laws and National policies in deferent places and time can be seen as the factor behind ending conflicts within our communities. This can be manifested from initial point of policy formulation and implementation of the law. To reveal this, the following laws and national policies in relation Resource based conflict in Tanzania were revised: Mustafa36 argues that law can be contingent, political and contestable, often perpetuating and legitimizing exploitative and oppressive geographies of social power.
These local boundary problems seem to be maximized by conflict between customary law, Wild life law and Land law.
2.02 Land Law and National Land Policy.
According to the National Land Policy of 1995, all land is public and the President is the trustee on behalf of all citizens. The policy identifies several land categories like general land, reserve land (Over 25 % of Tanzania’s land mass is devoted to national parks, most of which are at present delineated from the general land) and village land. General land, which includes unoccupied or unused, is currently the one available to pastoralists for grazing their animals and smallholder farmers for harvesting forage. However, the land can always be allocated to reserves, national parks or villages to the pastoralist’s disadvantage.
The land has for several decades been shrinking through reallocation and expansion of cultivation while livestock population has increased. There are very few, if any, areas that have been set aside and protected by law for communal grazing lands for pastoral communities, to add salt to the wound Tanzania 1997 Investment Act provided all lands for investors. No effective land use planning and village land gazettement have been undertaken and this has allowed processes of encroachment to develop unabated.
Tanzanian Land law, prior to 1895, was under customary rule by respective tribes or communities. In 1895, following the onset of German colonial rule, an Imperial Decree was issued on Land. After 1920 the British administration began passing several laws to govern, land including the Land Ordinance Cap 113 in 1923. This law governed land in Tanganyika/Tanzania until May 1, 2001, when the Land Act No. 4 of 1999 and the Village Land Act No. 5 of 1999 came into operation. This has provided a new framework for Land tenure in Tanzania. 37
The Land Act of 1999 and Village Act of 1999 now govern all land in Tanzania. These laws state that all land is public land vested in the President as trustee on behalf of the country’s citizens land is divided into three categories: reserved land, village land, and general land, which are managed according to differing provisions.38
The acts provide for different powers in different Government institutions, including the President, the Commissioner, and the Minister for Lands. District Councils and Village Councils also have powers for land management, and the latter are the principle management institution for village lands. Dispute settlement institutions are also provided for in terms of different courts and a new village institution, the Village lands Council, as well as a District Land and Housing Tribunal.
A number of central aspects of land tenure also remain relatively unchanged as compared to the situation under the Land Ordinance, including:39 The corpus of land tenure regime developed during the colonial times continued to apply fully after independence with only one change: ‘President’ replaced ‘Governor’
All land in Tanzania remains public land under the President.
Village land management remains under community authority.
The President retains the authority to revoke rights of occupancy in the public interest (subject to compensation).
Land tenure is still defined by either granted rights of occupancy or customary rights of occupancy (now defined as equal under the law).
Many people are not aware of the existence or content of the new legislation.
A number of the new institutions do not exist and their formation will be time-consuming.
Certain new institutions, such as the District Land and Housing Tribunal, are not provided for in terms of composition by the laws and not found down to people .
Prior to the new land acts, Tanzania had already adopted a National Land Policy in 1995, which the country had not previously had in the years since independence. A number of land management problems spurred the adoption of the Land Policy, including population growth, increasing demand for agricultural land, expansion of urban areas, need for investment, increasing disputes over land, the need for a land market, and uncertainty in land tenure in rural areas. The National Land Policy is concerned primarily with four key issues: land allocation, land ownership, land use, and land dispute settlement. However, it also touches on fundamental issues such as land management and administration, rights of women to use and own land, land use and conservation, land transfers or sales, land acquisition, revocation of rights of occupancy and compensation, land dispute settlements, documentation of land rights, and surveying and mapping.
2.03 Forest Law, Wild Life Law and Policy
The documentation and legislation supports forestry activities in Tanzania, including Forest legislation from 1957, the Tanzania Forest Action Plans from the 1980’s and 1990’s, the National Environment Action Plan of 1994, and the National Environmental Policy of 1997. In 1998 the National Forest Policy was released, and in 2001 the Ministry published Community-based Forest Management Guidelines.
The management of Tanzania’s wildlife resources has for the past quarter century been based on the legal content of the Wildlife Conservation Act of 1974. The Wildlife Conservation Act represents the ‘fences and fines’ approach to wildlife management. The two core elements of the Act are:
Provisions for establishing and managing protected areas such as Game Reserves and Game Controlled Areas.
Provisions for regulating the use and consumption of wildlife and wildlife products.

Game Controlled Areas are described in the Wildlife Conservation Act as areas where hunting is regulated by the Director of Wildlife. No restrictions are placed on the land uses of people living in Game Controlled Areas- only their rights to use and consume wildlife resources. By contrast, in Game Reserves restrictions are placed on entry, cutting of vegetation, and grazing of livestock.40
The Wildlife Conservation Act provides the legal framework for regulating the main form of wildlife utilization in Tanzania, which is tourist hunting. Tourist hunting is carried out in much of the nation in areas such as Game Reserves, Game Controlled Areas, and Open Areas. The basis of tourist hunting management is that the Wildlife Division of the Ministry of Natural Resources and Tourism leases a block- a designated hunting area in reserved or village land- to a commercial tourist hunting company.
The Policy describes the problems facing the wildlife sector as including:
The failure of wildlife conservation as a form of land use to compete adequately with other forms of land use, especially for rural communities.
The loss of wildlife habitats to settlement, agriculture, grazing, mining and logging due to human population increase.
Escalating illegal wildlife off-take and trade.
The existing land tenure system and the wildlife resource ownership by the State hinder investment in and development of wildlife-related industry by the private sector.
Inadequate wildlife user rights granted to rural communities.
These legal opportunities have existed for years. Local communities have not used them due to the dominance of the state-centered conservation paradigm, which restricted Community participation in wildlife and natural resource management.
The current policy also does not adequately recognize the transhumant, or nomadic, nature of many communities living within or near wildlife areas and Tanzania's protected estate. Pastoralism in semi-arid environments requires regular movement and flexibility in order to utilize the different climate-driven resource niches this as been proclaimed even by Potkanski41
2.04 Investment Law and Policy.
A number of developing countries recently have been busy enacting laws and amending the existing one in order to provide incentives to investors and giving them a red carpet treatment. 42
The main objective of Tanzania investment policy in tourism industry is to expand a diversify tourism industry, encourage foreign and local investors, On the other hand this is not what is in the practice, local investors are ignored and indigenous do not benefit from their resources, only foreign investors investing on their land. The only song by government leaders is that pastoralist are enemies of environment which is quite wrong as it’s all known pastoralism and wild life coexist.43
No promotion and equitable growth through the country. Peter44 said the Tanzania investment Act 1997 No 26 was aimed to attract foreigners to invest in our country and few local people got in by accident. Under 1997 Act everything is up for grabs without any inhibition, the 1990 investment promotion Act45 which was repealed by 1997 Act, was some how fair to our land as it indicated reserved areas for public activities.
2.05 Firearms Laws and Policies.
The problem of the proliferation, misuse and illicit trafficking in small arms and light weapons in Tanzania has had a tangled history due to the country’s unique geographic location and its role in African liberation wars. During the 1970s and 1980s, Tanzania was the centre of liberation movements for Southern African countries that were under colonial rule. Tanzania offered military training to freedom fighters belonging to these movements. However, these liberation movements also had their own command and organizational structures and were solely responsible for the distribution of small arms, light weapons and ammunition to their troops without interference by the host country. Other reasons behind, is Tanzania being surrounded by war torn countries.
Tanzania doesn’t have an effective legislation to eradicate the illicit trade of firearm. The Arms and Ammunition Act of 1991 regulates the acquisition of firearms in Tanzania. A license or permit is required for all types of firearms, and there are mandatory waiting periods, training certifications and background checks. Tanzania is also signatory of the Nairobi Declaration on the problem of the proliferation of illicit small arms and light weapons in the Great Lakes region and the Horn of Africa.46
Grace, Mujuma a Tanzania delegates to United Nation General Assembly 47 said that, following the adoption of the 2001 Programme of Action, her country had formed its own national strategy and joined other regional initiatives including the SADC Firearms protocol.48 In 2003, the Government reviewed its national firearms legislation to ensure that it was in line with the Programme and the SADC initiative. It had also committed resources to addressing the development-related aspects of the illegal small arms trade, which fuelled conflict and hindered socio-economic development and, in war-torn areas, hindered humanitarian access.
The United Republic of Tanzania believed that efforts to track the spread of the weapons would be greatly improved, with the adoption of an internationally binding agreement. And, while some instruments of a political nature and character had been somewhat helpful, it was clear that more needed to be done.49


CHAPTER THREE
3.0 PRESENTATION, DISCUSSIONS AND ANALYSIS OF THE FINDINGS.
3.01 The issue of international border and illegal immigrations.
Loliondo and Sale Divisions of Ngorongoro District closely border Narok County Council in neighboring Kenya. The nature of people living across this international boundary is almost the same. People found in Kenya Masaai region are almost the same people found in Loliondo divisions. The 3 Maasai clans who are Loita, Purko and Laitayok commonly found on the land of both countries. The territory of Loita Maasai of Tanzania is a part of the greater Loita territory, which extends deeply into Kenya. Artificial borders50 created by colonial masters have theoretically remained. The Loita continue to move across borders as if they did not exist in the first place.
This situation has been further complicated by the factor of illegal arms, attributed to illegal trade with Somali bandits who flocked the district in the late 1980s and early 1990s. Guns have been used in recent conflicts, raising the stakes for both the protagonists and local administration officials. It is also observed that the Batemi are more militaristic than the Maasai, with a number of Batemi having been members of the armed forces.51
There are claims that during skirmishes between the two sides, Kenyan Loita Maasai are ferried across the border to fight the Batemi. A further complication comes from the proximity of this area to the border with Kenya, and the fact that the Loita Maasai traverse this border to Loliondo on the Tanzania side
Moreover52, the Batemi claim that additional pressure on land and natural resources comes from the large number of Kenyan Loita Maasai who have migrated into Loliondo division. Furthermore, the informal and unregulated cross-border trade that constitutes a major component of the local economy on both sides of the border is controlled largely by the Loita, as a result of which the agricultural produce of the Batemi has often failed to find market as they would have to cross over ‘enemy’ territory on both sides of the border53.
We can therefore say with nature of people living in Loliondo and sales divisions the laws of migrations have failed to accommodate the nature of this problem around this international boundary.

How this contributes to persistent nature of the conflicts?
Proliferation of Firearms.
The same border is freely used by both Sonjo and Maasai to import illegal firearms to be used during the conflicts.54 OCD during interview said that, up to July 2008 Loliondo Police station managed to receive surrendered fire arms 18 in total and these are SMG.SAR, AK 47 and G3 from Arash,Oldosambu,Kisangiro,Oloirien,Yasimdito,Oloipiri,Enguserosambu and Maaloni.
TABLE 1: A LIST OF ILEGALY POSESED WEAPONRY/SHELLS COLLECTED ON APRIL –AUGUST 2008
NO
DATE
TYPE OF FIRE ARM
QUANTITY
PLACE FOUND
1
5/4/2008
SMG NO.3321
2
Enguserosambu village
2
07/04/2008
SMG NO.56-13009895
6
Maaloni village
3
08/04/2008
SAR NO. 25032510
2
Enguserosambu
4
30/06/2008
--------------
15
Eyasi Mdito
5
30/06/2008
SMG NO.6049924
15
Piyaya
Compiled From Data Provided by Ngorongoro OCD Mr. Mponjoli
The proliferation of firearms is associated with Kenya Fire arms policy during 1980’s where the policy in Kenya by then allowed every Kenyan to posses firearms purposely to fight common enemies who were the Somali bandits. There are many people who posses firearms illegally from neighboring country.
The use of firearms has risen to alarmingly high levels in Kenya during the past decade, a trend blamed on the easy availability of small arms, mostly pistols and assault rifles55. Armed conflicts in the Horn of Africa, especially in Somalia, some parts of Ethiopia and the Great Lakes region, have been cited as one way through which illegal guns have fallen into the hands of gangsters and livestock thieves. Eregae56 said most of the weapons used in urban crime, cattle rustling and poaching were smuggled into Kenya from neighboring countries that have experienced civil strife. According to a source within the Kenyan law enforcement, an illegal pistol would sell in some Nairobi suburbs for about 10,000 shillings (US$140). Larger weapons, such as AK-47s, which are not readily available from smugglers in the city, would cost three times more.
Conflicts have been also caused by cultural differences and influx of immigration that have resulted into competition over resources57Also the same border allowed the Somali bandits to cross the border in 1980’s and later became a source of weapons to the fighting groups in Ngorongoro. Mbonile (2003) examines how immigration and other processes have exacerbated the water use problems in the Pangani Basin and have led to a resource-based conflict. Mbonile found that the major processes that have intensified the water conflicts in the Pangani Basin were the high and rapid increases in both human and livestock populations.
Babikeri58 said the disorder, poor policies and insecurity has encouraged pastoralist Gadaref in Sudan to posses arms for deffence.Francis, K59 says the deadly pastoral conflicts in Kenya are further compounded by massive armament and the corresponding rise in civil militarism among pastoralist communities.
3.02 Lack of Land Use Planning and Proper Resource Management
Proper land use planning at both the District and village levels is the major
Contributing factor to such conflicts.60 Certainly one would even suspect the lack of land use planning capacity at district level. The little land use planning that is being done is actually a simple demarcation of boundaries between villages.
Disorder in land tenure and regime61’, is responsible for many conflicts in land in the country. The situation in Ngorongoro and especially in Loliondo and Sale Divisions is a living example of the subject chaotic and disorderly arrangement in land management and administration Sale and Loliondo Divisions have no clear boundaries to the extent that administrators do not even know the geographical limits of their jurisdictions.
There has never been a systematic demarcation of the two Divisions. The boundaries of villages in the two Divisions are consequently contested and are a major cause of the escalating violence. Babiker 62 says the existing policies and legal institutional framework were put in place in 1950s and the tensions between the state legislations in Sudan and customary land regimes and continual grabbing of land and displacement of pastoralists was leading for conflicts among pastoralists, commercial farmers, sedentary farmers and state security forces.
Current law does not define the boundaries between the two conflicting sides. The land regime in our republic knows nothing about tribal land boundaries but village land boundaries. The situation in the two Divisions is such that people do not talk of village boundaries but those of Loita Maasai and the Batemi. The interest of the two groups is to protect and expand their traditional territories, much against the interest of the other.
In Kilosa some of the areas that constitute the District are surveyed or have at least been declared as planning areas. However a large portion of District is unsurveyed ,and as results we now see daily bloodshed in Kilosa.A study by Misana and other (1997)63 in three village in Kilosa District namely Ilongea, Msalalani and Msingisi revealed that all the 3 villages lacked certificates of titles land is governed by virtue of the district and the village councils.
The situation found in Kilosa is similar to what found in Ngorongoro. Villagers have only derivative rights only to use land not to own land this is the great source of conflicts. In Ngorongoro only 2 villages out of 37 villages possess the certificate of land ownership these are Ololosokwan and Engaresero.The rest of the area are not surveyed or planned for multiples uses.
The range land act of 1973 and village and Ujamaa village act of 1975 both aimed at eliminating customary rights through process of law.
The latter category of conflicts is caused almost entirely by disputes about village boundaries. As villages seek to plan the use of their land, they reserve specific areas for different purposes such as dry season grazing areas. Conflicts arise when pastoralists from neighboring villages seek to have access to such reserved areas in contravention of village land use plans or without the authority of respective village councils. Such village land use plans often change the traditional pattern of access to land, and in the absence of wide consultations across villages, they become a basis for conflict with those who still ascribe to traditional mechanisms of land use.
In practice however, disputes about village boundaries often interface with traditional rivalries between different sections, as appears to be the case between Arash and Piyaya or Soitsambu and Oloipiri.64 Where such traditional rivalries do not exist, neighboring villages are able to reach agreements on the use of land with relative ease.
However, such conflicts are routinely dealt with through traditional dispute resolution and conflict management mechanisms involving elders, traditional institutions, systems and practices.
Apart from conflicts that can be traced to historical rivalries, there are new forms of conflict arising within Maasai society as a result of modern influences and practices.
With break down of traditional practices and penetration of global economics forces to the local level such conflicts in many society as for spatial differences are concerned
Human population increases
Increasing demand for agricultural land and increasing conflicts between farmers and pastoralists
Uncertainty and confusion in land tenure in many rural areas
Increasing pressure to make land available for investment purposes following liberalization of the economy
The need to regulate land transactions through a market in land
Increasing disputes over land tenure and ownership


3.04 Natural Resource Curse
Ngorongoro District is the richest District in Tanzania in terms of natural resources but surprisingly the district is leading in resource based conflicts and poverty. In 1987 NLUPC from Dar es Salaam prepared land use plan for Loliondo Division but was not gazetted. The land was to be divided into land allocation for cultivation, pastoralism and conservation.
As stated earlier, the majority of Tanzanians live far below the “poverty line” earning less than US $ 1 per day; Remember the average income per capita is obtained by an arithmetically equal distribution of wealth, which no Utopia is expected to achieve.
This is a parasitic stratum. It strengthened tour and travel companies in the same way in which local communities are weakened. It is polarisation of wealth and poverty at two opposite extremes. It is all sheer robbery, criminal plunder of the weak by the strong. To borrow the late Dr. Rodney’s (1970: 254) phrase, “capitalism is parading in without even a loin cloth to cover its nakedness.”
Condemnation of pastoralists and cultivators as simply trouble-mongers who must be dealt with, has never ceased since 1992 when the Rio Conference 65came up with the CBC philosophy ,Principle 21 emphasizes that in sustainable development everyone is a user and provider of information. For example, Dr. Jafar Kideghesho of Wildlife Management at Sokoine University of Agriculture has written a number of papers clamouring for CBC. Yet he writes, “Habitat degradation attributable to severe overgrazing by livestock was the major cause for the decline. The eviction of Maasai pastoralists from the reserve [Mkomazi] in 1988 reversed the situation by lessening the degradation and thus restoring the conducive environment for wildlife species” (Kideghesho, 2001).66 He does not seem to have even a clue that eviction of people from their land, under any cover, is a “gross violation of human rights.” Praising such crimes should not come from someone who is trumpeting for CBC, this is what Stoclohm Declaration67 and Arthur Convention68 provide against.
In reference to the Ramsar Site Convention 197169 the lake Natron area was declared to be Ramsar site without peoples concern and hence became a threat to presence of pastoralist living around the lake on their jurisdiction and sovereignty over natural resources.
The director of wildlife has more power to grant concession for exclusive hunting rights without involving villagers .Practically this has taken place in Loliondo where the whole Loliondo Game Controlled area was granted to OBC and left indigenous as squatters on their land. OBC hunting activities have long struggled to get accommodated within traditional grazing patterns of pastoralists in the area, which struggle has at times precipitated into sore relationships and open conflicts. The land leased to OBC and the other sold to Thomson Safari in Loliondo are seasonal migrated corridors. The same situation was found taking place in Sudan whereby most of the pastoralist seasonal migrated corridors were granted to investors from U.A.E, Saudi Arabia and Egypt.70
The Ngorongoro Conservation Authority (NCA) occupies more than a half of the District land (59%). All people within the conservation area have no right of ownership and even villages are not recognized.
Mount Lengai and Lake Natron Game controlled have been hunted by NCA, WMA and hash Project companies.The erosion of pastoralist land to the hand of outsiders did not cease, currently Thomson Safaris an American company possess 12000 acres of pastoralists grazing land.
Box 1: the uses proposed for farm No. 373 in Soitsambu71
2250 acres shall be used for campsites in several areas
1500 acres will be used for building Tourism Hotel and Lodge
500 acres will be used for building cultural Bomas to the residence
250 acres shall be used for curio shops
7500 acres are for game driving and walking
200 acres for staff village
OBC has not only impinged on Maasai grazing rights, the company has attempted to restrict freedom of human movement regardless of the presence of cattle. In 1998, OBC erected a gate on the only road to the northern part of LGCA. They controlled access to the road. Those living north of Loliondo town needed special permission to go through the gate; otherwise, they would have to take a route that was twice as long. The road was finally opened in 1999, after the matter being taken to the parliamentary debates.
This reality has prompted a number of studies and investigations over conflict in Ngorongoro in recent years, mostly by development partners, students and civil society or organizations active in the district or concerned with pastoralism, development and conflict management.
It is not at all surprising that resource-based conflicts should constitute one of the major development challenges in Ngorongoro. Indeed, this is consistent with the reality all over the dry lands of Africa where conflict has become endemic. In a global review of pastoralism and conflict, have shown how areas occupied by pastoralists are characterised by conflicts emanating from competition for natural resources72. In a sense the survey does no more than update and confirm what previous studies, including those by Kratli and Swift,73 already concluded and asserted: that competition for access to range resources leads to conflict among pastoralists and between them and other livelihoods and land use systems that seek the use of the same resources.
Major challenges to the security of pastoral land tenure include expansion of agriculture, oil and mineral extraction, tourism-driven conservation policies, and Western notions of private property and resource ownership, which promote individualization and privatization of pastoral commons.
In response to pressures for privatization and individualization, Governments, including that of the United Republic of Tanzania, have often implemented sweeping changes in land tenure with the support of international donors, particularly the World Bank.
The situation in Ngorongoro District is defined by competition for access to land and natural resources underpinned by competing land uses and livelihoods. The land use competition, which often translates into conflict, can be classified into four major categories, namely:74
Although of a much smaller scale, there are also conflicts in Ngorongoro which pit pastoralists against pastoralists. Such conflicts occur either between different sections of the Maasai community, for example between the Purko and the Loita or between Laitayok and Purko.
The former category of conflicts is explained largely by historical rivalries which create latent animosity capable of flaring up into violence at the
slightest excuse. It is difficult with such latent rivalries to distinguish between instances where individual differences are “communalized” by either side to feed their historical differences and instances of real inter-sectional disputes or conflicts. There is a clear tendency in such cases for individual differences, especially where they result in any form of violence to be enlarged into communal conflicts as both parties mobilize the support of their families and relatives

3.05 Privatation, Acquisition and Investment Policy.
Potkanski 75 says From the 1990s onwards, land disputes between settled agricultural and mobile pastoral people have become more common in Tanzania. These land disputes have been due to land alienation and multiple allocations of land/resource rights on village lands.
From the end of the 1980s this has been the case especially in Tanzania, in the Districts of Monduli, Kiteto and Siman-jiro,Kilosa and Usangu. Conflicts occurred in places where large-scale agriculture and/or mining rights have been granted to private investors by the State. In Arusha Region underlying causes to conflict include both territorial issues and property claims where the access and control to critical resources has been very important. Conflicts on village lands have developed when State authorities have favored land allocations to cultivators at the expense of the pastoralists or offered to investors at the expense of pastoralists.
In land disputes, villagers use territorial strategies to guard their village land and property rights against encroachment by “outsiders’
The village Land Act makes it legally for village lands to be alienated to non village private investor it has a potential for further approbation of common land and privatization .76
Chachage and Shivji (2001) 77concede that liberalization has prompted high marginalization of the rural poor as a lot of pieces of land are being alienated from peasants and pastoralists. Thus causing conflicts over natural resources. This was possible because when they move elsewhere in order to secure for forming and grazing are, they cause conflict with people they meet, we have at hand live examples at Rufiji, Ihefu, Kilosa and lindi.
Shivji and Kapinga78 states that a number of controversial alienation have justified over past few years in forms of promoting investment and attracting foreign investment and attracting foreign investor land has been alienated to hoteliers for purpose of tourism in and around National parks as will as on prime beach later.
We currently have great conflicts with hoteliers at Ngorongoro who wants to build hotels almost every where at conservation area while the laws prohibits indigenous to build modern buildings. Also exclusive hunting right granted to outsider like (OBC) in loliondo all these is evident from discussions with villagers and other stakeholders in the District, that a major cause of conflict between conservation related investors and local communities in the district is the information gap that surrounds the grant of licenses to the investors, the terms under which the licenses are granted, and the benefits that communities are supposed to get from the operations.
A key cause of this situation is the lack of clarity about the legal status of the land and the relative powers and responsibilities of the central government and the village authorities regarding the management of access to the land for purposes of conservation related investments. A key example is OBC in 1992 was granted the land without people’s consultation and District council signed on behalf of villages. The above act of District councils amounts to violation of constitutional rights. 79 The situation is further complicated by the multiplicity of policy, legal and institutional mandates surrounding the Loliondo Game Controlled Area.
The allocation of hunting blocks is done by the Director of Wildlife in exercise of powers that are not clearly regulated under the Wildlife Conservation Act. In fact, complaints have been raised to the effect that “in practice, the allocation of hunting blocks has reflected the Director's personal whim rather than the consistent application of” guidelines.80 While such complaints come from professional hunters and hunting companies, which feel that there is inadequate clarity about the criteria for the granting of hunting licenses and the allocation of hunting blocks, they in part reflect the information gap referred to above. The entire process takes place in Dar es Salaam without any reference to the local communities. In particular, village councils complain that they are never consulted even though the operations of the hunting blocks ultimately touch on lands that fall under their mandates within the meaning of the Village Land Act.81
Loss of Land though Government acquisition and creation of conservation areas and game reserves have deprived people’s Land. Such measurers have created Land less mobile pastoralists and farmers. Shivji (1998)82 says Government leaders serve only government interests and policies and put aside majority interest.
At another level, the competition for tourist business is feeding on old animosities and creating more conflict. Moreover, there are now claims that some tour operators are using villagers to fight their competitors83. During the Soitsambu village assembly on August 2008 I managed to attend the meeting and noted some grievances as follows: one old man named Oletoroge complained “we are not ready to live with Investors like OBC and Thomson but our fellow Laitayok have been corrupted to sale the land” In fact, the ongoing dispute between Thomson Safaris and the village of Soitsambu is explained in some quarters by reference to competition between tours operators, as those with existing businesses seek to protect their turfs.
Lack of community participation in land use planning and zoning for different use is the main source of conflicts Shiviji (1998). The central focus of the large majority of complaints received of concision on land was not considered (hatushirikishwi) that was a constant cry. The result of that to people will take law in their own hand to raid and killing one other.
Peter Maina84 says the 1997 Tanzania investment Act has some glaring weakness like liberation of economy hailed as policy that will open avenues through which the local and foreign investors would walk together to prosperity but this has not been achieved because the law is silent on the joint ventures and obligations to investors.
3.06 Dispute Settlement Mechanisms
There is a lack of conflicts management in multiple resources user. This should be resolved by mix institutions comprised both customary and formal system.
LC (1994) has indicated that there are many authorities dealing with land matters. This has brought more problem than even before because there is no clear authority dealing within land matter especially in areas with multiple land use and resources like Ngorongoro. Investigation comes out and revealed that people with land dispute don’t send their cases anywhere for deliberation this is because of lack of clear authority to deal with land matters. Courts do not resolve many land problems.
Mwamfupe and Mg’ong’o said85, the persistence of open clashes in many
villages of Kilosa District for example is an indication of the weaknesses in the reconciliatory bodies. In Kambala village, for example, Maasai pastoralists complained of biased judgments that favor crop cultivators. As one pastoralist put it “Only in one case out of 10 will a Maasai win a dispute against crop cultivators”. On the other hand,
however, crop cultivators argue that pastoralists are, in most cases, the main
offenders as echoed by one villager “It is very rare that crop cultivators invade the Maasai’s grazing lands”.
Also some complainants cannot afford to report their complaints to courts. This is because courts are not easily accessible to ordinary people. Also poor behavior of leaders who lack accountability, people loose trust on the Government machinery and it is bureaucrats at various levels. The gross negligence in settling lands use conflicts has led to the persistent of conflicts for long time without any solution. Kapinga (1995)86 says these include undermine of local tenure arrangement land appropriation and misuse of leadership position to grab land.
The experience and discussions with key informants in the study villages further revealed that the machinery used to solve conflicts helped the growth of the conflicts .For instance in 2004 the District high leadership and Police force was condemned of arresting only one side of the fighting groups,the prisoners were the Maasai leaders ;Tadei Olekoiye (ward councilor) and others.
The traditional institution and methods used in Maasai and Barbeig shows that the traditional conflicts resolution processes with society in Tanzania have capacity to have conflicts solved.
Maina (supra) says the major weakness of Tanzania investment Act is the lack clear dispute mechanism for dealing with disputes arising out of investment , it addresses only foreigners and local investors totally excluded .It also silence on the conflicts that arise between the foreigners and indigenous.
Police as enforcement organ is condemned for not being strategic in curing the problem but we can’t blame the Police force because their role in solving conflicts in Loliondo is basing on temporal measurers, only to cool the dispute but not to end the animosity.
3.07 Villagization
Maganga (1995), Shivji (1994), Mvungi and Mwakyembe (1994)87 discussed problem of villagization at different perspective. Said to bring land struggle as well as conflict of various magnitudes to coexist side by side with statutory ownership and incompatible differences modes of economy were more mixed than ever before, exacerbation resource use conflicts.
Maganga (1995) says, thus happened because villagization was carried out without any enabling legislation, therefore this alteration lead conflicts and endless disputes. In other words one of the fundamental contradictions of villagization in Tanzania appears to be that of aggravated lands use conflicts and pressure and weakening institutional capacity in solving those conflicts.
Operation Vijiji was carried out without any enabling legislation under the premise that since all the land could be allocated and re-allocated without legal consequences.Shivji (1994) Says;
“Re-allocation and settlement was affected through the use of force. Allocation of the villages was done by executive bodies such as DC, RC no one new what legal refine will govern them.
The National Land Policy -1995 and Land Act -1999
Land Act was drafted and reaffirmed land continue to be vested in the President and will be regulated on his behalf by the commissioner for lands. But there is no difference with previous land refine. The only departure was to assert that “Land has value” “become a market commodity”.The same thing to Village Land Act 1999 provides for possibility of adjunctions and titling of village lands within village lands but under supervision and ultimate power.
Tenga -1987(Supra) suggested that an important condition for resolving the apparent conflict over land is to change land use and management policies land laws should allow individual or groups to establish exclusive rights over land .
Sanna Ojalamm(Supra) says in social native space, zoning policies have also caused increased tenure insecurity and uncertainty of property due to land alienation, which has led to varied land disputes in different places.

3.08. Overlapping of Laws
Existence of numerous pieces of land legislation.
Sanna Ojalammi(Supra) says when thinking about law, it is also important to remember that Africa has often had two parallel legal systems functioning at the same level: state law and customary law. Also, overlap-ping land claims (modern and customary) have existed side by side in social space. Customary law/tenure has functioned at the level of peoples’ communities and statutory law has operated on the national level.
Mr. Nelson of Sand County Foundation presented an apparent contradiction in the legislation with respect to Game Controlled Areas and village lands. Game Controlled Areas are created by the Wildlife Conservation Act88, and according to the Land Act is therefore included under the definition of reserved lands.89 At the same time, Game Controlled Areas in northern Tanzania overlap with demarcated and registered village lands and are therefore included under the Village Land Act’s definition of village lands.
Mr. Stolla stated that the legislation did not intend land to be both reserved and village lands, and that this was a contradiction and a flaw in the laws.90 Concern was expressed as to the tenure security implications of this contradiction, and Mr. Stolla advised that the only recourse would be harmonization of the laws by Parliament.
One factor that brings about land conflict is existence of numerous pieces of legislation controlling deferent land resources that apart from contradicting each other, often clash with indigenous property management system hence result into insecurity to land tenure leading to unsustainable land use practices making policies as well as legislation over resources ineffective and irrelevant to actual situation (Maganga 1995)91
This study shows the multi-legal situation in Tanzania where land and resource property has accommodated notions of private, common/collective or granted rights in land ownership.
The Wildlife Conservation Act does not define a game-controlled area, and its provisions thereon are not very illuminating as regards the status of persons who live within these areas. The Act merely provides that the Minister may, by order in the Gazette declare any area of Mainland Tanzania to be a game controlled area92; and then places certain restrictions aimed at ensuring that animals are not trapped, wounded or killed.93 Such is the ambiguity about the import of these provisions that one hears claims among certain groups in Loliondo that the local people have no rights to the land on which they live. On the other hand, villagers in the area have applied for and obtained certificates of village land under the Village Land Act.94. Nevertheless, the multiple, policy, legal and institutional mandates of the Land Act, the Village Land Act and the Wildlife Conservation Act combined with the government’s aggressive pursuit of foreign investments in the wildlife sector add to the sense of insecurity and uncertainty that surrounds land rights in Ngorongoro district, and is one of the key factors engender resource-related conflicts in the area. Recently Serengeti National Parks (SENAPA) in collaboration with land surveyors from land ministry mercilessly grabbed the richest part of Ololosokwan Village pretending that they are adjusting parks borders. While the village certificate of ownership from the same ministry shows those areas belongs to the village95.
Juma and Maganga (2000)96 their studies on local resource management at Mbarali District in irrigated areas revels that water utilization (control and regulation) Act of 1979 and other piece of legislation that they have become source of land use conflicts it is therefore questionable whether or not system that ignore customary laws over resource appeal to people and will be implementable. Because those who were protected by customary law will not secure protection under new legal system.
The National Land Policy does not 'recognize, clarify, and secure in law' customary land Rights vs the wildlife conservation strategy predicated on the state's allocation of customary lands. On the contrary, it enables further dispossession of rural communities' lands. For example, the Land Policy recognizes overlapping and sometimes conflicting land uses, including wildlife use, in many districts such as Kiteto, Monduli and Ngorongoro. 'Some of the game controlled areas are critical habitats for wildlife and also form wildlife migration routes .Those areas have serious land use conflicts and Dispute.
In Tanzania we have Environmental Managements Act of 1997 which works simultaneously with Environmental sector Policy and Legislations like Forest law, Mining, Wildlife, Agriculture and Land laws. Therefore to avoid overlapping of any kind, all these laws must be properly implemented. This was recently manifested where the Deputy Minister for Natural Resources and Tourism under the coercive force of International environmental law insisted that we have to see people around Ngorongoro crater evicted to avoid threats from UNESCO.97 "We have already directed the Ngorongoro Authority to conduct census for both human population and livestock in the areas so that we can take appropriate measures”
CHAPTER FOUR
4.00 CONCLUSIONS AND RECOMMENDATIONS
4.01 The way forward
On the basis of the foregoing analysis and findings, the following interventions are recommended as a way of addressing the conflicts in Ngorongoro:
Establishment of a District-wide conflict management framework which incorporates all the major stakeholders, especially central and local government, traditional leadership and institutions, civil society, the private sector and religious organizations, and ensures the effective participation of men, women and youth, if the initiative could be enlarged beyond its present focus on humanitarian crises, and to incorporate traditional mechanisms of conflict management and dispute resolution.
A comprehensive education and awareness creation exercise should constitute a core part of this strategy to confront and address different aspects of conflict in Ngorongoro, including historical rivalries and perceptions that derive from them, prejudice, especially as between the Batemi and the Loita, enhancing awareness about land and natural resources policy and law and land rights. Students in schools should be skilled to live as one and united.
Systematic and comprehensive resolution of disputes regarding village boundaries in the District in order to bring closure to this long-standing issue.This need to be done by making sure all villages are surveyed and posses certificate of ownership.
Participatory land use planning at the Village and District levels with the informed participation of all villagers and the relevant institutions. In particular, such land use planning should be informed by and take into account historical access to common property resources across villages and even districts.
Reconcile natural resource management and development policy and institutional imperatives with pastoralism and reduce the perceived hostility of key policy actors in the District to pastoralism as a land use and livelihood system. A key issue in this regard is the need for an improved understanding of pastoralism among key policy actors in the District and people should be seen benefiting from resources.
Find a lasting solution to the pending land claims whether through court action, negotiated settlement (ADR) or government intervention. Leaving these claims pending for long periods only serves to perpetuate feelings of hostility between the protagonists, and encourages impunity in some quarters.
To cure the problem of porous border between Tanzania and Kenya Government should enact laws which can accommodate the problems arising from the border of Loliondo category where one clan extends to neighboring country. Customs and immigration offices need to be established at Loliondo.
The Government should improve the capacity law enforcement organ to confiscate firearms held illegally.
4.02. Conclusions.
Conclusively the above study reveals the real situations taking place in Ngorongoro. The district is notorious of the above categories of resource based conflicts, and the escalation of violence in the district has been precipitated by Laws and National Policies operating over the whole District. A number of factors such as proliferations of firearms , natural resource curse, overlapping of laws ,lack of land use planning, lawlessness, porous boundaries, evictions, investment activities, poor dispute settlement mechanisms have been found to be the main reasons for persistence nature.