Friday, July 16, 2010

COMPULSORY LAND ACQISITION IN TANZANIA

COMPULSORY LAND ACQISITION IN TANZANIA
1. Introduction to Compulsory Land Acquisition
Compulsory acquisition of land involves expropriation of private rights in the property; it is a restraint on the right of private owners to be able to dispose off property according to their wish. In Tanzania we have the Land Acquisition Act of 1967 CAP 118[RE 2002] which provides for the compulsory acquisition of lands for public purposes and in connection with housing schemes. The Law of Land Acquisition is intended to legalize the taking up, for public purposes, or for a company, of land which is private property of individuals the owners and occupiers, and pay equitable compensation therefore calculated at market value of land acquired, plus an additional sum on account of compulsory character of acquisition Section 3 of the land acquisition Act empower the president to acquire land compulsory.
2. Purpose of compulsory land Acquisition
The main purpose of compulsory acquisition by President according to section 3 of the LAA is for the Public interest.
The President may, subject to the provisions of this Act, acquire any land for any estate or term where such land is required for any public purpose.”

In a broader constructuin public purpose would include a purpose,in which the general interest of the community, as opposed to a particular interest of the individual, in generally and vitally concerne In a generic sense the expression public purpose would include a purpose in which where even a fraction of the community would be involved. despite the fact that It is not possible to give an exact and all-embracing definition of public purpose , Section 4 of The Land Acquisition Act defines public purpose as the expression ;

4 (1) Land shall be deemed to be required for a public purpose where it is–
(a) for exclusive Government use, for general public use, for any Government scheme, for the development of agricultural land or for the provision of sites for industrial, agricultural or commercial development, social services or housing;
(b) for or in connection with sanitary improvement of any kind, including reclamations;
(c) for or in connection with the laying out of any new city, municipality, township or minor settlement or the extension or improvement of any existing city, municipality, township or minor settlement;
(d) for or in connection with the development of any airfield, port or harbour;
(e) for or in connection with mining for minerals or oil;
(f) for use by any person or group of persons who, in the opinion of the President, should be granted such land for agricultural development.

(2) Where the President is satisfied that a corporation requires any land for the purposes of construction of any work which in his opinion would be of public utility or in the public interest or in the interest of the national economy, he may, with the approval, to be signified by resolution, of the National Assembly and by order published in the Gazette, declare the purpose for which such land is required to be a public purpose and upon such order being made such purpose shall be deemed to be a public purpose for the purposes of this Act.

Land acquisition is the process governed by multiple legislations with diverse objectives like;

1. Public purposes as defined by Act No.47 of 1967 and in Land Act No.4 of 1999
2. Transfer of categories of land under section 4(7) & 5(7) of the Land Act, 1999
3. Hazardous land under section 7(8) of Act No. 4
4. Regularization scheme as per section60 (1)(f) & 60(3)(c) of Act No. 4 of 1999
5. The Wild life Act of 2008


The motives behind acquiring public can be randomly being picked up from the mentioned legislations above as follows;

1. Which would preserve or promote public health, comfort or safety of the public, or a section of it, weather or not the individual members of public may make use of the property acquired ;
2. Which would serve the public, or a section of it, with some necessarily or convenience of life, which may be required by the public as such, provided that the public may enjoy such service as of right; or
3. expansion of existing facilities such as airdromes, widening roads, additional power or water lines and protected areas
4. Which would enable individuals to carry on a business, in a manner in which it could not be otherwise be done, if their success will indirectly enhance public welfare, even if the acquisition is made by a private individual, and the public has no right to any service from him, or to enjoy the property acquired; or
5. If the use to which the property would be put, is one of the widespread general public benefit not involving any right on the part of the general public itself, to use the property or;
6. Which would result in an advantage to the public; it is not necessary that the property, or the work upon it, should be available to the public as such; the acquisition may be in favour of individuals, but, in furtherance of scheme of public utility, which would result in enhancement of public welfare.
7. Which would promote public interest, or tend to develop the natural resources of the stat
8. Which would enable department of the government to carry on its governmental


2. Procedure for acquiring land compulsorily
The Land Acquisitions Act sections 6-8 stipulate that , if the President resolves that any land is required for a public purpose, the Minister shall give notice of intention to acquire the land to the persons interested or claiming to be interested in such land, or to the persons entitled to sell or convey the same, or to such of them as shall, after reasonable inquiry, be known to him.

1) Notification of Government’s intention to acquire the land
2) Explanation(workshop) to landowners on their compensation and resettlement rights
3) Assessment of compensation(identification and measurement of the affected assets)
4) Resettlement needs analysis
5) Approval mechanism for assessed sums
6) Payment procedures and allocation of new Lands to the affected population
7)

The court also in Mulbadaw Village Council v NAFCO [1984 TLR 15] discussed the mandatory requirements and procedures when acquiring land publicly.

4. Compensations and Rejections
Sections 11of LAA Stipulates
“Subject to the provisions of this Act, where any land is acquired by the President under section 3, the Minister shall on behalf of the Government pay in respect thereof, out of moneys provided for the purpose by Parliament, such compensation as may be agreed upon or determined in accordance with the provisions of this Act”
Under Section 13 any person interested in land which is notified under section 4 (who is entitled to claim an interest in compensation) can raise an objection, in writing and in person. Where any land is acquired under this Act is in dispute according to section 13 such dispute or disagreement is not settled by the parties concerned within six weeks from the date of the publication of notice, the Minister or any person holding or claiming any interest in the land may institute a suit in the Court for the determination of the dispute.

The high court once in Salum Juma Mzeru v Omari Ubaya [1984 TLR 31 (HC)] declared that the owner of the land must be compensated according to the market value of the land , the developed land includes land conservation.

The law of Land Acquisition jeopardizes private interest for public interest and hence it denies an individual his right to property as provided by the Constitution of Tanzania. It overrides the right of a person to own a property, so the law in general should be strictly construed. The strict construction of the Law of Land Acquisition has been emphasized by the court for the last 60 years as it does not hold the person whose property is being taken and state at par.Exprience from the practice reveals that most of the time objections have been directed to compensations and not to acquisitions. For instance the recent case of Kipawa residents , their main objection focused on miscalculations of compensations, on other hand the situations is different in areas around National parks and protected areas. Pastoralists in or around National Parks like Nkomazi game Serengeti,Ngorongoro Crater and Loliondo have always seen to resist the entire process of Land acquisition, the main reasons behind their rejection is the lack any sort of Compersation.Government official most of the time declared pastoralist grazing as no mans land.


By Onesmo Olengurumwa

9 comments:

Anonymous said...

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Anonymous said...

一個人就像一個分數,他的實際才能是分子,他對自己的評價是分母。分母越大,則分數的價值越小。..................................................

Anonymous said...

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Anonymous said...

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Anonymous said...

Practice what you preach...................................................

佩劉俊宇劉璇 said...

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Anonymous said...

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william masirory said...

But remember the adverse posseser has no right to be given a compansation.the compansation is always issued to the person who posses a title.

Deus Lutengano said...

Can you please put some examples of compulsory land acquisition which have already done in Tanzania and their purposes