Tuesday, February 16, 2010

Pastoral land tenure vs new land laws

Table of contents page
1.0 Historical Background of Pastoral Land Tenure in Tanzania
1.2 During Colonial era…………………………………………. 1
1.3 Post Independence Period ………………………………….2
2.0 A Summary of the 1990’s Land Law Reforms……………………4
2.1 Presidential Commission on Land Matters Inquiry.
2.2 National Land Policy.
2.3 The 1999 Land and Village Laws.
3.0 Analysis of the New Land Laws in relation to the Pastoral Land
3.1 Policy implementation…………………….,…………………………5
3.2 Objectives of Land Law Reforms……………………………………5
3.3 Expansion of Protected Areas…………………………………… …5
3.4 Copping Mechanisms………………………………………………..7
3.5 Inheritance of colonial old rude Land Tenure……………………..8
3.6 Participation and Flow of information………………………………9
3.7 Land Dispute Settlement System………………………………….10
3.8 Inclusion of Unused Land in the Category of General land……..10
3.9 Resource based conflict and marginalization of the poor…… ..11
3.10 Overlapping of laws……………… ……………………………14
4. Conclusion…………………………………………………………………19
5. Recommendation……………………………………………………. …..19
6.0 References ……………………………………………………………….21
List of Abbreviations
DC District Commissioner
GCA Game Controlled Area
G.A General Assembly
LGCA Loliondo Game Controlled Area
MP Member of Parliament
NCA Ngorongoro Conservation Area
NGO’s Non-Governmental Organization
NAFCO National Agriculture and Food Corporation
NCAA Ngorongoro Conservation Authority
NLP National Land Policy
NP National Park
OBC Ortello Business Corporation.
PINGO’s Pastoralists Indigenous NGO’s
TANAPA Tanzanian National Parks
TBL Tanzania Breweries Limited.
UAE United Arab Emirates
URT United Republic of Tanzania
UNESCO United Nation Education, Science and Cultural Organization
WMA Wildlife Management Area
1.0 Historical Background of Pastoral Land Tenure in Tanzania
astoralism is a way of livestock production in which livestock keepers
move their cattle, sheep and goats from place to place to take
advantage of pasture and water which are available at different times
during the year. On the dry-land planes of Tanzania, livestock and their herders,
sometimes entire families, can move large distances to reach suitable pastures,
which causes some pastoralists to live a nomadic or semi nomadic existence.1
The development of pastoral land tenure can be traced from colonial era to the
present.Dr .Kennedy says; the pastoralist land tenure has been the subject of
conjecture and turbulence from the colonial trough the independence
era.2Subsistence farming and pastoralism constitute a substantial component of
the livelihoods of the people. At the global level, the pressures for liberalization of
land and natural resources, specifically with a view to putting land in the market
place have been critical in revisiting land legislations. Tanzania has almost 2
millions pastoralists scattered in several regions. The Maasai pastoralists are
large in number and widely known.
3.2 During Colonial Epoch
After the intrusions of Germans in East Africa all the Tanganyika land was taken
by German East Africa Company. Any land which was evidenced not to be
private was considered to be public property. German recognized the customary
land rights and tried to facilitate proof of them in order to integrate them into
formal production of western system3
Then the recognition of customary survived only for short time when German
East Africa declared that all land was un-owned. Then ownership of the land was
vested to German Empire and land title had to be obtained by conveyance of
ownership or leasehold. According to Dr G Kennedy the natives by then had only
1 Sendalo, D(2009).A Review of Land Tenure Policy Implication on Pastoralism
in Tanzania.p 7.
2 Kennedy, G.(2007).The Impact of Tanzania New Land laws on the customary Land rights of
Pastoralists.p 21
3 Ibid. p 24
user rights not ownership, and ownership had to be proved by documentation.
Then one of the major implications of this to pastoralism is the fact that
“occupancy of the land became narrowly defined as tilling where as pasturage
and fallow were not seen as occupancy.4
Sendalo reiterates that, the colonial legislation and programmes viewed pastoral
land as reserves awaiting proper allocation and exploitation. Wildlife reserves
and prime land for settlers were always cut-out of the rangelands.5 There is
plenty of indication to suggest that the primary objective of new land policy and
legislation at this point is not to secure the land rights or interests of the majority
poor but to make more land available for commercial and often foreign-backed
investment, I will later revert to this when discussing the impact of land law
reforms on pastoral land tenure.
The system of pastoral land ownership faces many challenges including the
categories of ownership. Land tenure in pastoral societies of Tanzania comprises
of two key concepts namely, territory which denotes land as defined by the
jurisdiction of state or community, etc.; and domain which refers to the range of
customary control or sphere of influence (Kaare, 1996, 5).Then due this huge
challenge Potnaski says It is this climate-driven mode of land and resource use
which has led to their lands being dubbed as uninhabited, barren or underutilized.
As a result, these lands have been confiscated without concern for the
pastoralist way of life on the pretext that they were ‘no man’s lands’. (To be
discussed later).
The reasons for these challenges are much more complex than experienced on
the farm. They reach back to land grievances that have a century-long history,
which remain unresolved and this will continue to resurface periodically, and with
greater and greater disturbance until they are resolved.
During German era pastoral land tenure was not properly legislated, Germans
were highly interested with plantation economy and oriented market economy.
After world wars Tanganyika became mandate territory and later trust territory
under British Governors. British rule struggled to favor the interest of natives in
4 Ibid. 25
5 Sendalo.Op.cit.,p 8.
land matters by enacting various laws including the land ordinance of 1923 Cap
113.Regardless the enactment of those laws; the land law Cap.113 had no
provisions relating to customary tenure. Dr Kennedy says, 1928 land law
amendments did not in practice protect natives and pastoral land tenure as a
whole.6Prof Juma elaborates that, British took advantage of this ambivalent and
tenous nature of customary tenure system to accommodate shifts of
administrative and economic policies at the expense of customary lands7Grazing
lands or rangelands became vulnerable to encroachment and remained insecure
against land alienation in favor of establishment or expansion of commercial
farming, wildlife reserves, or conservation schemes and all this were justified by
British rule.8Despite the efforts made by British to establish Maasai District in
1926 and Land (Pastoral Purposes) regulations of 1927 to defend Maasai land
rights, pastoral land tenure was still unsecured.
1.3 Post Independence Period
Land tenure regime in Tanzania never became new even after independence.
The independence government went on using the same land laws in land
administration by retaining the legal heritage left to it by British rule.
According to Dr Kennedy, during post independence period there was only one
attempt to regulate pastoral land under customary law until 1999 when the land
and village Land Acts were enacted. The only attempt made was the
introductions of rangelands under 1964 Range Development and Management
Act.9 Operation vijiji and creation of ujamaa village hardly took into account the
land rights of pastoralists.
6 Kennedy.,Op.city. p 30.
7 Juma, I.H. (2000),’’Extinctions of customary Land Rights in the Wildlife Conservation Areas of Tanzania:
The Case of Mkomazi Game Reserve. In Retch in Africa 2000:133-172, at p.142.
8 Ritcher,R.E.(1996),the land Law in Tanganyika since the British Military Occupation and under the
British Mandate of the Legue of Nation,1916-1946”,in Debusman , R and Anorld.S.(eds.) ,Land Law and
Land Ownership in Africa:The case Studies from Colonial and Contemporary Cameroon and
9 Kennedy., Op.cit.,p 37.
2.0 A Summary of 1990’s Land Law Reforms
(i)Presidential Commission on Land Matters
he 1990’s land reforms, was initiated by the commission of inquiry into
land matters in 1991.The commission was commonly known as Shivji
commissions due to the fact that Prof Issa Shivji was the chairperson of
the commission. The report was a gear towards all land reforms took place in
1990’s.In 1992 the findings of the report were submitted to the President
covering all legal, admistrative and institutional dimension on land.10The report
had good recommendations on pastoral land tenure like range mechanism to
protect pastoral land.11
(ii) The National Land Policy
Before enactment of any law it’s legally advised to have a policy in place
before.1995 in responding to presidential commission, Tanzania government
released a National Land policy basing on the recommendation of the
commission of inquiry on land matters of 1991.The policy admitted the existence
of the shortage of grazing land coupled with government policies that favored
cultivation at the expense of pastoralist.12The policy addressed the problem of
pastoralism without giving straight forward mechanisms to secure pastoral land
(iii)Land and Village Land Acts of 2009
In responding to the National Land Policy, the parliament of Tanzania enacted
two legislations i.e Land and Village land Acts of 1999 for the management of
land matters in Tanzania. According to Prof Fimbo the major concern of the
policy makers in the land law reforms has been the tensions between on the one
hand ,freedom to deal with the land in the market and on the other ,security of
tenure or protection of users and occupiers of land.
10 United Republic of Tanzania(1994),Report of the Presidential Commission of inquiry into the land
matters,Vol.1 & 2.
11 Presidential commission Report on land matters.Op.cit. ,Vol 1,Chapter 15-16.
12 National Land Policy, paras 7.3(iii)
13 Fimbo,G.(2003),Land Law Reforms in Tanzania. p 44
3.0 The Impact of Land Law Reforms on Pastoral Land Tenure
3.1 Policy implementation
oth the policy and the report of the presidential commission attempted to
address the problem of pastoral land tenure. The questions of issuance
of village land certificates and restoration of range lands were strongly
addressed by the policy. But in practice the situation is not the same due the fact
that the policy is silent on the mechanism to address those problems. With
regard to the nature of pastoral community, they need a vast area for grazing and
sometime to practice transhumance, but surprisingly the policy is silent on that.
NLP requires all range lands to be reverted to its original use as soon as existing
activities ceases14
But this is not the same in practice, look at the case of NAFCO as well the case
of Soit sambu grazing land (12,000 Acres) granted to TBL in 1980’s for for
commercial farming activities and when farming activities ceased, that land was
never reverted for pastoral activities instead the land was sold to Thomson
Safaris for tourism activities.
14 National Land Policy,para 7.3.1(a),p 35.
2 Objectives of Land Law Reforms
Tracing back the objectives behind Tanzania land law reforms, it is easily to note
what impact the law reforms will have on pastoral community. There is plenty of
indication to suggest that the primary objective of new land policy and legislation
at this point is not to secure the land rights or interests of the majority poor but to
make more land available for commercial and often foreign-backed investment.
The evolution of Tanzania's reform of its land laws is an initiative embarked on as
part of broad economic liberalization supported by donors and the World Bank
Group.The liberalization of the economy and emphasis on privatization fueled by
the IMF/World Bank agenda on markets and privatization has increasingly
opened the rangelands to a host of external forces. Land acquired by the state
either for direct economic activity)15
3.3 Expansion of Protected Areas
The Policy became a thorn to rural communities particularly pastoralists, as it
advocates for dispossessions and expanding of boundaries of protected areas at
the expense of pastoralist (e.g. Mkomazi game reserve and NCA). The Policy
has inherited the colonial system of land management from top to dawn. The
principle of the policy promoted by the land laws of 1999 clearly stipulates that all
the land in Tanzania is the public land, with radical title vested in the president as
the trustee on behalf of all citizens.16
The Land Policy turns against the pastoralists, blaming them for encroaching into
agricultural lands and causing conflicts with other communities and for land
degradation! It states that ‘the free movement of pastoralists with their cattle
brings about land ownership and land use conflicts with settled communities.
Furthermore, in the manner of the ‘old orthodoxy’, ‘unregulated movement of
livestock causes land degradation in areas through which they pass.’ The moral
is clear: pastoralism and pastoralists are the victims of who are degrading the
15 Sendalo.Op.cit.,p 8
16 Section 3(i)(a) and 4(1) Land Act, section 3(i)(b) Village Land Act,1999;National land Policy,para
environment. About 1/3of the country's total area is protected to a certain degree
as National Park,"Game Reserve", Marine Park, Forest Reserve17
The pastoral people in Tanzania have been the most prominent victims of
protected areas and wildlife conservation policies and practices widely
Acknowledged today. Today, they occupy less than two thirds of their former
territory and there are indications that this will go on dwindling. (Kaare, 1996,
Okoth-Ogendo, 1992).
Dealing with the impact of new land laws on the pastoral land tenure can’t be
done in isolation of new wildlife and environmental laws. Pastoral communities
have for many years been moving to the south, Tanzania tremendously faces
another kind of the Maasai migration to urban centers beginning during early
1990s in search of wage labour and other income earning activities. The reasons
for such movements include loss of livestock due to diseases, drought, and
limited land for livestock keeping, worshiped investors like OBC, extended
conservations , protected areas etc.
17 Ibid., 9
Sendalo proclaims that18, Pastoral areas continue to be viewed as
unproductive “wastelands”, and government investment is rarely proportionate to
the contribution made by these areas to local and national economies.
Furthermore, the contribution that pastoralism makes to the national economies
is rarely quantified in national development statistics. For example, there is little
recognition of the fact that pastoralism is the backbone of the commercial
livestock sector for both domestic and foreign markets, or that almost all the
wildlife that attracts significant foreign earnings is located in pastoral areas. The
fact that pastoralism is able to make profitable use of the million people in
Tanzania, is also often not recognize
18 Sendalo.,Op.cit., 19
3.4 Copping Mechanism
Literature shows that the pastoral community have been forced to develop
copping mechanisms against these changes of land reforms. The copping
mechanisms include;Migrations to new areas of the country and diversification of
productive activities, a good example are evictions of pastoralist from Ihefu valley
to Lindi. These changes could mean greater insecurity or greater vulnerability for
certain social groups, while bringing prosperity for other groups.During Ihefu
evictions many pastoralists lost their livestock due to long walking distance.
3.5 Inheritance of Old and Impolite Colonial Land Tenure
The land tenure in Tanzania never change, the new land laws retain right of
occupancy as the sole systeme of land holding or land tenure. Right of
occupancy is a dual system divided into Granted and Customary rights of
occupancy. Customary right of occupancy include issuing of certificate and
deemed right of occupancy according section 25 of Village Land
Act,1999.However , the issue of deemed right of occupancy is nowhere to be
seen as secured by the land laws due to the controversy surrounding section 18
of the village land Act,1999.
Dr Kennedy reiterates, validation of land use occupation into granted right of
occupancy infringes the rights of customary land owners.19 This is more
practicable in many pastoral villages, particularly in Northern Tanzania where
quite substantial areas of land have been alienated to companies like
OBC,Thomson Safari ,individual etc under granted right of occupancy.
Pastoralist in Simanjiro District faced with severe challenges; the most acute is
shortage grazing land as the result of land alienation. Due to seasonal
movements of livestock under transhumance system seasonal grazing land have
been labeled as terra nullus(no man’s land) and legally or illegally alienated
into larger plantations, mining caves or creation of National Parks Like
19 Kennedy., Op.cit.,p 64, see also Lane, C. (ed).(1994),Pasture Lost alienation of Barbeig Land in the
context of Land Policy and Legislation in Tanzania,Op.cit.
20 Kennedy., Loc.cit., p 105.
The usual daily and seasonal migrations have been rendered difficulty by the
present land laws and wild life laws. For instance, during periods of serious
conditions, pastoralist have attempted to utilize some of this alienated areas for
dry season grazing but have found them inaccessible.Inturn they have been
brutally treated to the extent of being called foreigners from Kenya.( refer the
loliondo saga 200921 and the case of Simanjiro 2006.)
21 Olengurumwa,P.(2009)”Untold Story of the Ngorongoro District”, p 15.
3.6 Participation and Flow of information
The NLP advocates for the participation of people in land management and
admistration.In practice there is huge evidence that up to date pastoral
community are still un aware of new land laws reforms. This subsequently has
negative impact on pastoral land tenure as they still practice what can’t be
enforceable into the court of law in case of any interventions.
The land laws advocate for a villagers to secure their land, they need first to get
certificate of village land granted by commissioner for land. The whole process
certification according to my own experience and studies made by other
researchers like Dr Kennedy and W.Olenasha is very problematic due to
cumbersome procedures which seem to be, expensive and prohibitive. For
instance up to date only 3 villages in Ngorongoro out of 34 villages have
managed to have village land certificates.
3.7 Land Dispute Settlement System
The system of land dispute settlement under new land laws is still a theory to
pastoral community. In many pastoral areas this system is not yet established
and whenever established it happens to be unworkable. The involment of
Ministry of Land in land matters and at the same time involved in appointment of
chairpersons of the District Land Tribunal overrides the principle of impartiality.22
3.8 Inclusion of Unused Land in the Category of General land
The inclusion of unused or unoccupied lands in the category of general Land has
negative impact on pastoral land tenure.PINGOS therefore argues that the land
laws lean favorably towards foreign investors, there is a lack of land security for
land owners reside in different villages when their land is labeled as unoccupied.
This question was even discussed before the enactment of new land laws. For
instance in the parliamentary debate on land bill, the chairman of the Economic
and Finannce Commmittee,Hon Late Juma J. Akukweti (MP),raised the concern
that the Bill had not clarified pastoralists lands.He said pastoral lands need legal
22 National Land Policy,para 4.2.25
protection due rotational grazing system23.According to Dr Kennedy many official
justified the inclusion of unused land into general land as it simplifies the creation
of land bank to be granted to investors without going into detailed procedures of
transfer of village land and payment of any compersation.24These have been the
same justifications used by colonialist to expropriate and plunder the land of the
poor. Customary law/tenure has functioned at the level of peoples’ communities
and statutory law has operated on the national level.
3.8 Marginalization and Conflict over natural resources
Chachage and Shivji (2001)25 concede 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. On his part, Shivji propounds
that from 1990’S lands disputes have become common in Tanzania due to poor
management of land matters.
Land conflicts can be put into various categories as follows;conflicts between
pastoralists and farmers, conflicts between indigenous and investors , conflict
between central government and citizens and conflicts between reserved areas
authorities and citizens. .26These conflicts matured to be a threat to peace, loss
of life and properties.Pastoralists lost their homes and properties during evictions
in many parts of the county.For instante in Kilosa, evictions left many pastoralist
homeless.Many of them lost their cattle and money.27
One of the memeber of perliament had this tosay;
“Wafugaji wanazunguka bila ya kuwa na maeneo maalum ya kufugia. Kila
wanapokwenda wanaambiwa ni hifadhi. Wengine wameishi maeneo hayo kwa
muda mrefu zaidi ya miaka 20 leo wanaambiwa ni hifadhi”.28
23 Hansards, Parliamentary Debate,pp 27 and 61.
24 Section 4 Village Land Act,1999, see also Kennedy.,Op.cit.,p 178
25 Mtwale.,Op.cit., pp. 29-40.
26 Hansard., 16th session–27th Meeting .p.67
27 Ibid
28 Hansard.,Op.cit.16th Session – 14th Meeting. p 129
The Constitution, make it clear that everyone has the right to own or hold any
property lawfully acquired, and that the deprivation of such a right must be done
lawfully and compensation paid. Pastoralists have continued to traverse the
whole country or continue to have their land encroached upon, both processes
lead regular conflicts.
On the same agender another member of perliament had this to say;
“Wafugaji wamenyanyaswa kupitakiasi. Hivi ukinyang’anywa mifugo 400
uliyonayo ikauzwa, ukabaki maskini, ni sheria gani hiyo…….Kinachonisikitisha ni
swali linaloulizwa kwamba hivi wametoka wap…. Huu ni ukiukwaji wa Katiba na
haki za binadamu.?” 29
This is a parasitic stratum. It strengthened tour and travel companies in the
same way in which local communities are weakened. It is polarization 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 in his book How Europe
underdeveloped Africa “capitalism is parading in without even a loin cloth to
cover its nakedness.”30
Blomley 31 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, 32 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.
29 Ibid.,20th Meeting.p 115
30 Olengurumwa,Op.cit., p 10
31 Blomley,K. (2004).Unsettling The City, Urban Land and the Politics on Property.
32Tenga, R.(1991).“Tanzania Land Law, A Paper Presented in Proceedings of Arusha Workshop
on land Policy” August 27-29 -1991.
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.33
It is not at all surprising that resource-based conflicts should constitute one of the
major development challenges in Tanzania. 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 characterized by conflicts emanating from competition for natural
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.
According to Helland,36 Land tenure systems must be linked to a number of
organizational features (social, political, economic) of pastoral society; on the
other hand land tenure arrangements are also assumed to have evolved in
response to the nature of the resources involved. The main contemporary
problem in Ethiopian pastoral societies, however, is that various indigenous
forms of tenure that no doubt evolved as indicated above now are increasingly
subordinated to unitary national land tenure legislation
33 Babiker, M. (2007), Fighting For Inclusions Conflicts Among Pastoralists in Eastern Africa and the Horn.
pp 94-95.
34 Michele, Nori. Jason Switzer and Alec Crawford (undated). Herding on the Brink: Towards a Global
Survey of Pastoral Communities and Conflict. (An Occasional Working Paper from the IUCN
Commission on Environmental, Economic and Social Policy)
35 Babiker., Op.cit., pp 103-104.
36 Helland,J.(2006), “Pastoral Land Tenure in Ethiopia.p 3.
3.10 Overlapping of laws
Olenasha37 articulates that, the WCA is in conflict with the VLA and LGA when it
comes to the administration of village land. Village Councils upon being
incorporated have given powers of management of village lands for and on
behalf of villagers. According to the LGA38 one of the functions of the Village
Council is to ‘initiate and undertake any tasks, venture or enterprise designed to
ensure the welfare and well-being of the residents of village and participate by
way of partnership or any other way, in economic enterprises with other Village
The VLA has placed village lands under the administration of Village Councils.
The WCA has on the other had placed powers of control and administration of
wildlife under the Director of Wildlife. The Director has sweeping powers in
issuing hunting licenses. Game Controlled Areas (GCA’s) is one category of
protected areas where the Director has sweeping powers over GCA’s also
happen at the same time to be village lands. The Director has powers to give
hunting licenses for wildlife in village lands. Hunters are not required to get the
consent of Village Councils. This will outright be in contradiction with the powers
that Village Councils have been given under the provisions of the WCA and LGA.
Sanna Ojalammi39 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.
37 Olenasha, W. (2006), “Reforming Land Tenure in Tanzania: For Whose Benefit?”p 31
37 Section 142(2)
38 Ojalammi, S. (2005), Contested Land Disputes in Semi Arid Parts of Northern Tanzania, pp 90-10 see
also Olengurumwa ,P(2009),”Resorce baesd conflict in Nothern Tanzania;The case of Maasai and Sonjo
of Ngongorongoro”,p 53.
Sourcen.Sanna Ojalammi
Mr. Nelson of Sand County Foundation presented an apparent contradiction in
the legislation with respect to Game Controlled Areas and village lands. Game
Maasai Pastoralists grazing livestocks in Loliondo Division. This reveals main activities of
people living in Loliondo and the way they coexist with environment.
Sourcen.Sanna Ojalammi
Controlled Areas are created by the Wildlife Conservation Act40 and according to
the Land Act is therefore included under the definition of reserved lands41. 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. Stolla42 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.
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. Mtwale says one factor that brings
about land conflict, is the existence of numerous pieces of legislation controlling
deferent land resources. 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.
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 gamecontrolled
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 area, and then places certain restrictions aimed at
40 The Wildlife Conservation Act 1974(R.E.2002)
Report on a Workshop on Land & Natural Resources Laws & Policies, Held in Arusha April 11 & 12,
Peter, Stolla. (2005). “A Comparative Analysis of The Land Acts of 1999 and
The Land Ordinance 1923
40Mtwale., Op cit.
44Section 6
Section 11
Act No. 5 of 1999
ensuring that animals are not trapped, wounded or killed. 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 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 pastoral land rights in Tanzania, and this 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 village.
Mtwale44 discussed the work of Juma and Maganga on local resource
management at Mbarali District in irrigated areas noted 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.
44 Mtwale.Op.cit ,p. 19
In Tanzania we have Environmental Managements Act of 2004 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.
45 Olengurumwa. ,Op.cit .,p 63
4.0 Conclusion
s time goes on, the question of pastoral land tenure remains to be a history.
Many land laws reforms have been made since colonial time through
independence up to now, without any positive concern to improve pastoral land
tenure. Tanzania 1990’s land laws reforms have been noted to have negative implication
on pastoral land tenure. Pastoralism needs a vast chunk of land to practice rotational
grazing. The new land is silent on the question of pastoral land rights. The pastoral
livelihood and lifestyle have been forced to change to meet the requirement of the new
land laws. Copping mechanism like migrations to cities and economic diversification
have been the best options for pastoralist to secure their lives. Pastoralist land has been
named as No man’s land and categorized into group of general land. Encroachment of
the pastoral lands to allow huge investment and expansions of the protected areas has
been and order of the day and leave pastoralist as internally displaced people. The
National Land Policy condemns pastoralist as unfriendly to environment. The given
process of certification of the village land by the new land laws to secure their village
lands is cumbersome, prohibitive and bureaucratic.
5.0 Recommendations
The 1990’s Land Law Reforms are the most far-reaching land reform projects
implemented in Tanzania. However, the reforms have been most of the time condemned
to be in disfavor of pastoral community. Therefore, the following recommendations are
put forward to adjust the situation.
1. Because Land is the overwhelmingly most important, valuable and scarce
capital asset for pastoralism to flourish, the new land laws should be amended
to address the question of pastoral land tenure.
2. The state and policy makers should understand that pastoralists need a vast chunk of
land to secure their lives against tremendous increase of global climate change.
3. In any case there is no logic in having General Land in Village land. This will
be double categorization and it will invite collision of jurisdictions. Therefore,
the land Laws should be amended to address the question of inclusion of
unused village land into general. The so called unused land, to pastoralist in
real sense is not unused land but it is question of rotational grazing.
4. Village certification process should be removed from the administration of
commissioner for land and handled it under district or regional administration
to reduce bureaucracy and unnecessary expenses.
5. The retention of the radical title is the land tenure is a serious anomaly. For
complete democracy to be effected, the radical title should be divested.
6. The government should take all necessary initiatives to implement all
recommendation related to pastoral land tenure given by Presidential
commission on land matters.
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