1.
Land Rights in Tanzania
A Brief Review of the Shivji
Report and Comment on Recent Trends
by Dr. R. W. Tenga
1. The Shivji Commission
The Official title of the Shivji Report is "The Report of the Presidential
Commission of Inquiry into Land Matters" and was submitted to the President
of Tanzania on the 11th of November, 1992. The Commissioners, Led by Prof.
I. G. Shivji, were appointed on 3rd following terms of reference.
(i) To hear complaints from the general public concerning land and plots into
he rural areas and urban centers and to make recommendations for
solutions thereto;
(ii) To identify the basic causes of land disputes and to propose remedial
measures for solving the same and to recommend ways and means,
including the establishment of machinery and procedures, for settling
disputes;
(iii) To review matters of policy/land laws currently in force concerning
allocations of land, land tenure, land use and land development and
recommend changes thereto wherever necessary;
(iv) To analyse the functions, jurisdiction and organisational structures of
institutions involved in land matters, its allocation and development, and
in the settlement of land disputes with a view of identifying any
deficiencies and problems of overlapping of powers and to remommend
clear demarcation of the jurisdiction of the existing organs;
(v) To look into any other matters and issues connected with land which the
commission deems fit for investigation.
The Shivji Commission managed to produced a formidable report and inteviewed people
across the country. The author here appeared twice before the commission. In this work
the Commission identify 90 issues 'from the mass of complaints and evidence
received .......... in public hearings' (p.2). The 90 issues covered five major interrelated
areas :
1. Wide spead and perrasive insecurity of (land) tenure
2. Single source of Radical (or ultimate) title rested in the Executive Arm of the
state by (a) declaration of all lands as "public lands" and (b) vesting the control
and administration of "Public lands" nominally in the President.
3. Overlapping institutional structure involved in the administration allocation of,
and adjudication over land.
4. Lack of openness, transparecy and participation in the Administration of land.
5. Lack of accessibility, finality and certainty int he adjudication of land rights and
disputes.
The five areas admittedly overlap. Yet No. 1 and 2 could be said to relate to Tenure.
No. 3, 4 and 5 to the Institutional set-up in administration, allocation and adjudication of
land. The effect of these problem, the Commission observes, is largely to produce fear
amongst land holders, especially villages, who are "under serious threat of alienation,
expropriation and encroachment" (p.3)
Changes int he Administration of Central and Local Governments coupled with
villagisation were identified as the major sources for the worsewing of the position of
customary land-holders.
The Report gives a specific emphasis on the villagisation process and the demand for
Village Titling. The debacke of villagisation has to be redeemed by "a new dispensation
on land tenure" (p.5). And Titling cannot provide security of tenure, the Commission
observes. The Kenyan exprience is taken to be a good example where titling did not
become the panacea of all evils related to land.
1.2 Re commendations
First, the Shivji Report makes an argument for a National Land Policy. The
policy should be merged to a "vision of the future path of development:. The
Report suggests that two points of departure are critical : That the countryside
is organised in villages and that the rural economy is basically that of a small
holder (peasant or herdsman). On the basic of this the Report recommends the
Basic Principles of National Land Policy.
Second, a new Land temine structure:
(a) Basic foundations of a Land termine system be provided for in the
Constitution of the U.R.T (Chpt.19).
(b) Detailed provision be made for the administration of Land in one statute
styled as the basic Land Law Act.
(c) Two termine categories to be recognised
(i) National Lands: alienated lands, under statutory allocations and
other unoccupied lands.
(ii) Village lands; under certificate of villages.
The formed will be vested in a Board of Land Commissioner. (BLC) in turn and for the
benefit of the people; whilst the latter will be vested in their respective Village
Assemblies. The BLC would constiate a National Lands Commission which will be
under parliament. In this way the report expects to do away with the visiting of the
radical title in an individual.
Third forms of Land Interests will be as follows:
(a) Village Lands - Right of Customary Ownership.
-Form of Customary Leases licenas and
concession.
(b) National Lands -Right of Occupancy
-Customary rights.
These will be registrable in their respective registries called the Registry of Titles and
Registry of Customary Rights "The right of Occupancy will be governed by statutory
Law while the Customary right will be governed my customary Land and earton which is
given a wicler meaning then native Law custom (P.9) maximum period for both shall be
99 years.
Forth, registration, planning and allocation. This shall cover land use planning and
allocation of land through naurs plivent procedures (PP9-10) Fifth, the Report
reconcuenal modalities of saving the villagisation programme through
(a) To save customary rights, which were not disturbed by villagisation
which will be deemed to be held of the village assembly in the new
system.
(b) To extinguish customary rights which were disturbed by the villagisation
programs and.
(c) To validate allocations made by relevant authorities during villagisation;
such allocations will be deemed to be held of the village as assembly and
registrable as "Hati ya Ardhi ya Mila".
Sixth, dispute settlement machinery is recommended
Village level.................................BARAZA LA WAZEE WA ARDHI
APPEL TO
SENIOR MAGISTRATES...............CIRCUIT LAND
SITTING WITH ELDER COURTS (CLC)
APPEAL
HIGH COURT.................................. HIGH COURT
JUDGE
Sitting with Elders.
Seventyly, Inheritence system be refarimed in caution.
Trends:
