Tanzania’s property rights and resource governance systems have been in flux for more than 50 years. Just prior to independence in 1961, the British colonial government attempted to introduce the concept of freehold land ownership, but the proposal was rejected by TANU, the Tanzanian political party that took power when independence was granted. Instead, the new President of Tanzania, Julius Nyerere, developed and applied the concept of “African socialism,” an initiative that transferred the customary land rights of ethnic groups and clans to newly established elected village councils and encouraged collective cultivation of the land. While this approach was embraced by some, such as women, who found their access to and security in landholdings improved, the new system did not foster greater investment, sound resource management, or adequate rates of economic growth. The sometimes-forced movement of people into villages under the policy of ujamaa (collective production) resulted in better health and education services and the creation of a “Tanzanian” identity, but it did not lead to broad-based economic growth. The country remained among the poorest in the world.
When President Nyerere left power in 1985, the government of President Mwinyi began to chart new directions for Tanzania’s economy and society. By the early 1990s, it was apparent that a new approach to property rights and resource governance was needed, and steps were taken, including the establishment of a Presidential Commission of Inquiry regarding Land Matters (the Shivji Commission), to define it. The government prepared Tanzania’s first National Land Policy in 1995, which led to the enactment of the Village Land Act and the Land Act in 1999. The Policy argued that procedures for obtaining title to land should be simplified, that land administration should be transparent; further, it recognized that secure land tenure plays a large role in promoting peace and national unity.
The Acts provide the legal framework for land rights, recognize customary tenure, and empower local governments to manage Village Land. This framework creates two main processes for securing land rights: in rural areas, village lands may be demarcated and land use plans created to provide for Certificates of Village Land (CVL). Once a village has a CVL, people living within the village may apply for Certificates of Customary Rights of Occupancy (CCROs). While the process has been slow, approximately 10,000 CVLs have been issued though few rural residents hold CCROs. In urban areas, people may apply for Certificates of Rights of Occupancy (CROs). In order to acquire both CCROs and CROs, parcel holders must have the boundaries of their lands mapped and their rights recorded and registered. Non-Tanzanians may not own land but may apply for derivative rights to use land for periods of time, for example, to develop an irrigated rice plantation or to build a factory in an urban area. This legal framework also retained the rights that women were granted and continued some of the laws regarding communal management of rangeland, forests and wildlife, especially with the idea of preserving Tanzania’s great national wealth of wild animals.
The approach also involved a gradual transition to a legal framework that supports private property rights. At the same time, all land in Tanzania is considered public land, which is held by the President of Tanzania, in trust for the people. Individualized (rather than collective) control of resources in farming areas is permitted and private investments that utilize Tanzania’s natural resources for economic gain are promoted. In some cases, land holders and users have been vulnerable to expropriation by the government if it is deemed necessary for the public interest.
Despite the progressive provisions of customary land rights and decentralization under the Village Land Act of 1999, land law has not yet been effectively integrated into the land governance framework: village authorities often lack the financial and human resources to effectively perform their duties. Furthermore, given the current global demand for land, the ease by which the executive branch can appropriate Village Land is also a concern, particularly since Tanzania is rich in natural resources, including abundant agricultural land, forests, water, and minerals. Overlapping roles of the Ministry of Land and the Prime Minister’s Office, Regional Administration and Local Government (PMO-RALG), and weak governance in land administration pose major concerns in terms of delivering land rights in an efficient and equitable manner.
The Strategic Plan for the Implementation of the Land Laws (SPILL), prepared in 2005 and revised in 2013, seeks to ensure that land law and governance better supports the current and future social, economic, and environmental development of the country. This will be crucial to the success of Tanzania’s ambitious Five Year Development Plan 2011-2016, which focuses on priority areas, including urban development, infrastructure, Information and Communication Technology, agriculture investments, mining, livestock and fishing, forestry and wildlife, and land and housing at the regional level. As part of the Tanzania Government’s effort to transition the country from low to middle-income economy, a program called Big Results Now, is working to accelerate achievement of middle income status by 2025 and transition out of aid dependency by identifying and resolving constraints to results delivery in the Government’s priority areas (initially: energy, water, transport, agriculture, education and resource mobilization, with more to be added in future years). The results-driven monitoring system will enable high-level oversight of progress, make the existing system work, and emphasize transparency and accountability for performance. In the agricultural sector the initiative seeks to support small holder farming covering 330,000 hectares of land by issuing Certificates of Customary Right of Occupancy (CCROs) to 52,500 smallholder farmers in rice irrigation and marketing schemes as well as constructing irrigation infrastructure for these areas (GOT 2015b).
KEY ISSUES AND INTERVENTION CONSTRAINTS
- Review and modify legal/regulatory framework for land to support transparent and inclusive transactions. There is a need to rethink the basic framework governing investments in land, and the ways local communities, outside investors, and government policymakers interact. Currently the policy and legal framework of Tanzania fail to minimize the risks and negative impacts, as well as maximize the benefits and potential of land investments. Donors should support initiatives that clarify ambiguities and inconsistencies in the regulatory framework. This includes harmonizing the definition of “General land” in Tanzania’s Land Act and Village Land Act. Community rights should be emphasized by integrating the principle of free, prior, and informed consent in national legislation and regulatory frameworks; providing capacity building to local communities, including legal literacy training, paralegal programs, training in negotiating skills, and ensuring legal and technical support during the acquisition process; understanding potential impacts of donor programming designed to support land registration activities to ensure unintended harms to smallholders and vulnerable groups do not occur; establishing mechanisms to ensure participation of all members of the community, including groups that are often silent in community meetings such as women, young people, and any minority groups depending upon the context; and developing tools for monitoring and evaluating land deals, including databases and inventories in order to improve transparency.
- Improve land use planning processes and implementation. Tanzania faces many challenges: from achieving food security to mitigating and adapting to climate change, protecting biodiversity while at the same time initiating economic growth. Land use planning is one of the tools that can help to meet these challenges because it helps people identify and negotiate future land and resource uses. Land availability and supply, especially in urban areas is, in part, contingent upon the efficient functioning of several processes including: (1) declaration and regulation of planning areas; (2) physical planning of land use through master planning or its alternatives; (3) detailed planning of residential, commercial and recreational layouts; (4) land development controls in urban and peri-urban areas; and (5) cadastral surveying. Improving these processes can help create more sustainable and inclusive cities. In rural areas, special attention should be paid to building the capacity of village governments to assist in land use planning and land management efforts to promote participatory planning and decision making. Reinforcement of the appropriateness of general boundary demarcation and mapping principles, as a suitable alternative to expensive and time-consuming cadastral surveys, is also seen as critical to supporting any significant scaling of land registration and regularization in Tanzania. Donors should support initiatives that build capacity for participatory, inclusive land use planning in urban areas and support efforts to build capacity that improves village-level land use planning and management. Every opportunity should be taken to reinforce the necessity of maintaining general boundary principles for rural land registration within Tanzania’s legal framework.
- Improve local land administration capacity. A significant hindrance to providing more secure to land rights is weak governance in land administration, particularly at the local level. There are a number of reasons for this including, but not limited to: availability of financial and material resources, capacity of human resources, complex procedures and multiple reporting lines, and overlapping decision making processes. Support for improvements in land administration cannot be expected in the absence of a functioning system of local government. Donors should support government efforts to decentralize land governance at the local level. The trend of decentralization and devolution of land administration and management creates the potential for more responsive and transparent governance. However effectively decentralizing and devolving land governance requires time and significant resource outlays. A significant part of this is in building human resource capacity in the land sector will have long-term payoffs. Where possible, donors should support training and professional development opportunities for government officials, civil society organizations, farmers’ organizations and others.
- Improve management of, and transparency around, valuable natural resources. Tanzania is one of the most biodiverse countries in the world and is also endowed with various environmental resources including land, air, atmosphere, water, wildlife, forests, mineral resources, wetlands, renewable energy sources, and oil and gas. Despite advances in environmental law and policy use, the protection of valuable natural resources is constrained by inadequate human, infrastructure and financial capacity for managing environmental assets at all levels; low levels of awareness by the public on environmental issues; and weak enforcement and compliance with policies and laws. Donors should encourage strong measures to protect and manage these resources to ensure continued support a healthy society and sustainable economy and striking a balance between conservation and sustainable utilization of natural resource. These include involving key stakeholders for effective implementation and monitoring of relevant policies, legislation, strategy and plans; promote public awareness and participation on environmental management; strengthen the implementation of action plans and strategies, particularly by Local Government Authorities (LGA’s) Donors should also promote regional and international cooperation on environmental management and research and dissemination of findings on natural resources management and conservation.
- Improve women’s de facto land rights. Land rights in Tanzania have been the subject of vigorous debate and remain a contested and divisive issue. Typically, marginalized people and populations, including women and young people, have had difficulty claiming and retaining land rights. Donors should support efforts that further strengthen women’s land rights in Tanzania by addressing both legal and customary gaps. This can be done through legal reforms, research on de facto land rights for women, community awareness building, strengthening of farmers’ associations and by improving the agricultural value chain so that women will not lose land rights in the wake of large scale agricultural development initiatives.
- Negotiate community driven solution to accommodate pastoralists. Livelihoods for pastoralists are at risk with the loss of grazing land often attributed to increasing pressure from other users and lack of secure rights within the communal lands upon which they depend. The result has been an increase in land use conflicts between pastoralists and other land users. n. However, if pastoralist groups lack title over their lands and if villages don’t have enforceable land-use plans that define the kind of activities permitted in certain zones, such as settlement, grazing and agriculture, then pastoralist groups may be at risk of losing control of the lands and the resources they need to survive. Donors should support existing and proven approaches to secure communal land rights. CCROs are an effective tool for strengthening community land rights by granting formal recognition of customary land rights. In this way the collective nature of the title means that negotiations to plan for and accommodate pastoralists can only take place with the consent of the entire group, thus providing greater tenure security to at-risk communities and minorities. In addition, while CCROs historically granted parcels of land to individuals for farming, some places within Tanzania have modernized the tool to formally secure land for collective use such as livestock grazing.
After gaining independence from Britain in 1961Tanzania, under its first President Julius Nyerere, embraced African socialism. The authority of the state (and specifically the President) was reinforced to allocate and designate the uses of Tanzania’s natural resources. At the same time, individual and family customary land rights were largely abolished and were transferred to newly established elected village councils. Collective cultivation of the land was encouraged as rural people from scattered settlements were consolidated into communal (ujamaa) villages to promote large-scale collective farming. A change of government in1985 led to a reversal of this policy. Customary law and individualized rights to farmland were again recognized, and efforts were made to enact laws that would promote investment and increases in productivity, including by foreign investors.
In many ways economic growth in the country is robust. Gross Domestic Product growth has averaged more 5 percent per year between 2007 and 2014 resulting in improvements in living conditions, access to basic education, health and nutrition and, labor force participation in non-agriculture employment. As of the last census in 2012, approximately 28.2 percent of the population lives below the poverty line, a reduction from 34 percent in 2007. However, these benefits have not been distributed equitably. Inequality has increased between the urban and rural population and approximately 12 million Tanzanians are still living in poverty. Additionally, not all Tanzanians are satisfied that the post-1995 framework provides a meaningful mechanism for the transparent and efficient purchase and sale of land, sufficiently supports gender equity, protects national interests in Tanzanian land and other natural resources, or fulfills its potential to support sustainable economic development.
Forty-four percent of Tanzania’s land is classified as agricultural and agriculture accounts for 24 percent of the GDP, 30 percent of total exports and 65 percent of raw materials for Tanzanian industries. Fifty-two percent of Tanzania’s total land area is classified as forest and it is one of the twelve mega-diverse countries of the world, endowed with natural ecosystems that contain a wealth of biodiversity. These resources are threatened by climate change, which has both impacted, and is impacted by, existing land use in Tanzania.
Approximately 90 percent of Tanzania’s poor people live in rural areas. At the same time by 2030, it is estimated that more than 25 million Tanzanians will be living in urban areas. The demand for urban land is significantly exceeding the formal supply—and the gap is widening. Expanding demand is resulting in escalating land prices, urban informality, and proliferating peri-urban development.
The Land Act of 1999 and the Village Land Act (VLA) of 1999 provide the overarching legal framework for land governance and administration. The two land laws establish three basic categories of land: General, Reserved and Village Land. General land is surveyed land that is usually located in urban and peri-urban centers such as legally designated municipalities. Section 2 of the Land Act defines general land as all public land which is not reserved land or village land and it includes unoccupied or unused village land. Reserved land includes that reserved for forestry, national parks, and areas such as public game parks and game reserves. Other categories of reserved land include land parcels within a natural drainage system from which water basins originate, land reserved for public utilities, land declared by order of the minister to be hazardous and public recreation grounds. The Land Act provides the legal framework for General Land and Reserved Land. Under the Land Act, only the Ministry of Lands, through the Commissioner of Lands, has the authority to issue grants of occupancy.
The Village Land Act provides the legal framework for village land. Under the Village Land Act, land is classified as: Communal land, Occupied land, and Vacant land. Village Land is managed by a Village Council elected by a Village Assembly. A Village Council is the corporate entity of a registered village; the Village Assembly includes all residents of a village aged 18 years and above. The Village Council is accountable to the Village Assembly for land management decisions. The Village Land Act gives village government the responsibility and authority to manage land, including issuing Certificates of Customary Right of Occupancy within their boundaries and establishing and administering local registers of land rights. They must apply local customary law, provided it does not conflict with the prohibition of gender discrimination. Some village land has been demarcated but much still needs to be mapped and registered. While some legal experts in Tanzania have argued that villages can lease their lands directly to investors, this position is not universally accepted and is ambiguous under the VLA.
Tanzania’s land laws contain progressive elements in terms of recognizing customary land rights and granting them equal weight and validity to formally granted land rights. However, land insecurity in rural areas is high among small landholder farmers, pastoralists, and women. In urban areas, land is secured through formal and informal land transactions including land allocation from a municipality in an urban or peri-urban area and land purchase, but it is estimated that nearly 60 percent of urban dwellers live in informal settlements and lack tenure security. In general, women’s rights to land are relatively well supported in Tanzania’s formal legal framework. However, despite helpful laws, women continue to face the threat of losing their land as customary laws and norms favor male inheritance. Widowhood or divorce leads to some women losing their land to other, more powerful family members.
Global interest in investing in Tanzania’s rural and urban land has grown in recent years and hundreds of thousands of hectares of land have been acquired by companies in the biofuel, sugarcane, and forestry sectors. The formal land market is very limited and so while some investors follow formal procedures to obtain land rights others may obtain rights informally (without following the statutory processes for acquiring rights to land). In such cases investors may negotiate with traditional village authorities and local government bodies. Under the 1967 Land Acquisition Law the government may also convert lands held by villages to General Land to make it available to investors. If the investment fails, the land, once transferred to General Land, will not revert to back to Village Land because the customary rights that the communities have in Village Land are formally extinguished by the transfer. This leaves communities at risk.
Tanzania is rich in water, and natural resources. For the past decade, the resurgence in global demand for natural resources, including minerals, has been escalating, largely driven by foreign investors. The search for commercial natural resources is now expanding into more remote, and often extremely fragile, regions. At the same time Tanzania is the only country in the world to allocate more than 25 percent of its total area to national parks and other protected area status. It has 14 National Parks, 17 Game Reserves, 50 Game Controlled Areas, 1 Conservation Area, 2 Marine Parks and 2 Marine Reserves. It includes the second largest protected area in the world, the Selous Game Reserve, which is a World Heritage Site. With so much land protected for conservation purposes, and demands for resource exploitation expanding, the government needs to address how to handle competing demands for land to help mitigate or avoid conflicts over increasingly scarce land.