A technical analysis of the practical implications of the Acts
28 February 2005
Working Draft – Comments welcome!
The 1999 Land Act and Village Land Act are arguably among the laws that most directly impact on the well-being of most Tanzanians. They occasioned considerable debate when they were enacted, particularly on aspects pertaining to gender. After enactment, the Land Acts have made occasional appearances in the policy debates. Enactment on the Land Act was one of the trigger points in the HIPC process and there was also considerable debate surrounding the recent amendment of the Land Act that sought to make titled land more useable as collateral.
Notwithstanding the centrality of land to Tanzanian socio-political and economic life and the sporadic appearances of land law in the policy debates, it is striking how little the Land Act and the Village Land Act has changed the way that land is administered on the ground. There is also a comparative paucity of technical or academic analysis of the Land Acts. Although policy makers often refer to the Acts, it may be surprising to some how little they actually know of the substance of the Acts. Part of the reason for the substantial vacuity (excuse the term!) of the discourse around the Land Acts, especially the Village Land Act, may be that they to a large extent still aren’t being implemented. The purpose of this essay is to venture a modest analysis of the Acts. The focus will be on the practical aspects of the Acts, in order to provide a guesstimate of the Acts’ likely impact on the administration of land in Tanzania.
The next part of this essay provides the background to the Acts and a general discussion on their adoption. This is followed by more detailed discussions of first the Land Act, and then the Village Land Act. The last two sections of the essay considers alternatives to the existing legislation and some strategic observations on how the debate and policy process concerning land may be taken forward.
BACKGROUND TO THE ACTS
The National Land Policy was adopted by the cabinet and was presented to Parliament in 1995. The policy had gone through a long gestation period, which involved numerous policy drafts, a Presidential Commission of Inquiry, a number of commissioned studies by domestic and international experts and a National Workshop. Some controversy surrounded the adoption of the Policy, as it ignored much of the recommendations put forward by the Presidential Commission (hereafter referred to as the Land Commission). The Land Commission had recommended a system that vested rights in the users of the land and substantially reduced the Executive’s administrative prerogatives over the use and ownership of land. The National Land Policy, on the other hand, eschewed any effective attempt at imposing new checks and balances on executive power.1
In 1996, the Ministry of Lands hired a British consultant to draft the Land Acts, with funding from DfID. He faced an unenviable task in that he was strictly bound by the letter of the Land Policy, with all its ambiguities and inherent contradictions. The two Acts reflect the complexity of this task.2 They run to a formidable 800 pages, providing detailed legislation for three categories of land: Village Land, General Land and Reserve Land. On the one hand, the Acts introduce a long overdue clarification of many of the grey areas in the large body of legislation that it replaces. The Land Act repeals no less than 10 Acts and defines in law many of the procedures which had previously only been set down through administrative Directives.3 On the other hand, both Acts replicates many of the fundamental problems of the system they replace. They continue to give considerable scope for discretion and administrative directives.
Robin Palmer juxtaposes two diametrically opposed interpretations of the Land Acts (1999). One is that presented by Liz Wily, who did work on the Land Acts as a consultant for DFID and the Ministry of Lands. Issa Shivji, who was the Chairman of the Land Commission, and who has continued to do analytical work relating to land, puts the other forward. The contrasting of these two scholars’ positions is instructive, particularly their respective evaluations of the Acts’ treatment of the key issues of village land and the safeguarding of customary tenure. Liz Wily comes down heavily in favour of the new Acts, and classifies them as “basically sound”, arguing that they are the best of their kind in Africa in terms of “vesting authority and control over land at local level” (Palmer 1999: 2). Issa Shivji, on the other hand, finds little to commend the Acts, and sees them to achieve little but to consolidate the status quo:
the Acts now entrench in law what was the practice. Which is to say that the administration, management and allocation of land are placed squarely in the Executive arm of the Central Government under a centralised bureaucracy (Shivji 1999: 3).
That the Acts can elicit such different response is striking, but perhaps not so surprising considering the considerable complexity of the Acts and some of their inherent contradictions and ambiguities. We now turn to a more detailed examination of the legal letters of the Acts. First the Land Act.
THE LAND ACT
The Land Act provides the legal framework for two of the three categories, namely General Land and Reserved Land. Reserved Land denotes all land set aside for special purposes, including forest reserves, game parks, game reserves, land reserved for public utilities and highways, hazardous land and land designated under the Town and Country Planning Ordinance. The distinction of Reserved Land from General Land does not alter much in relation to the present system of tenure. It does little more than to draw attention to the fact that Reserved Land has been set aside for a special purpose under a different legislation. For example, forestry reserves will continue to be administered according to the legal provisions of the Forests Ordinance.
General Land is a residual category. It includes all land that is not Reserved Land or Village Land. Or so it appears. The ambiguity stems from the definition of General Land which is provided in the Land Act: “ ‘general land’ means all public land which is not reserved land or village land and includes unoccupied or unused village land”(s. 2, emphasis added). The part of the definition in italics does not appear in the definition of General Land in the Village Land Act. There are no provisions in either Act that clarify to what exactly the former definition refers. There is little doubt that this definition is yet another expression of the by now familiar concern of freeing ‘surplus’ land from villages for external investors. We will return to this in the discussion of the Village Land Act.
As surprising as it may seem, there is little in the Act that sets it apart from previous legislation. The Act retains the basic features of the old system, such as Rights of Occupancy and the imposition of Development Conditions and land rent. It retains most, if not all, characteristics of the system it replaces by providing for detailed bureaucratic control of all aspects of land use and ownership. In its more detailed provisions, the Land Act does little more than partially to consolidate earlier legislation, clarifying some grey areas and setting down in law areas that have previously only been subject to administrative regulations.
Concentration of powers in the Ministry
Arguably, the most striking feature of the Act is the manner in which it settles any previous conflict between the Ministry of Lands and Local Authorities firmly and unambiguously in favour of the Ministry. The Act clearly states that only the Ministry, through the Commissioner of Lands, has the authority to issue Grants of Occupancy (s. 14). In an obvious reference to the legal wrangle, which ensued after the reintroduction of local authorities in the eighties, the Act firmly declares:
A local government authority, shall not, unless specifically authorised by this Act, make an offer of or grant any right of occupancy to any person or organisation and any such purported offer or grant shall be void (s. 14).
The Act further states that any local authority officer “shall comply with any directives of the Commissioner issued to him specifically or generally, and shall have regard to any circulars issued by the Commissioner” (s. 11(7)).
The Act provides for the establishment of Land Allocation Committees at the levels of local authorities “to advise the Commissioner on the exercise of his power to determine applications for rights of occupancy” (s. 12). It is explicitly stated in the Act that the Commissioner is not bound to act on the recommendations of the Land Allocation Committees (s. 26).
The provisions for a market in land
One issue, which has received some attention, is the much-vaunted allowance for a land market. Section 31 of the Land Act states that the “Minister may require the payment of a premium on the grant of a right of occupancy.” The premium shall be decided by the Minister, who is directed to have regard to factors such as prevailing market prices and the assessment of a qualified valuer. In section 52, we find that the Minister may direct that the land be sold at an auction or through a process of tendering, with the relevant procedures to be according to regulations made by the Minister. As we can see, the scope for discretion is considerable, and it is doubtful whether these provisions provide any strong guarantees against land being granted to companies or individuals at below market rate. The absence of any such guarantee, of course, continues to leave room for illicit rent seeking in the allocation of land.
For a holder of a Granted Right of Occupancy wishing to sell, there is still less evidence of anything approximating an open land market. Enigmatically, the Act provides that:
“Unless otherwise provided for by this Act or regulations under this Act, a disposition of a right of occupancy shall not require the consent of the Commissioner or an authorized officer” (Section 36 (2)).
The following sub-section provides the significant proviso that the seller is required to notify the Commissioner, and that the Commissioner needs to “endorse” the notification before the Registrar of land can register the transfer. The Act further explicitly states that grants that have been held for less than three years require prior approval from the Commissioner (s. 37). In section 38 we find that the Commissioner may, at his or her discretion, ask for any additional information relevant to the sale and direct that the sale shall not take place before approval is granted. In other words, no formal approval is required unless the Commissioner says otherwise. Grounds for refusing approval range from non-fulfilment of development conditions, any previous criminal record of the seller, suspicion that the land is being sold at below market value or that there is any form of corrupt influences involved. Approval may also be refused if there is a breach of the rights of any disadvantaged groups, such as women, children or low-income persons.4
Even after a sale has been formally registered, the Commissioner may, within two years of the transfer, move to annul it. In this period, the Commissioner may annul the sale if he or she “has reasonable cause to believe” that the sale has been “affected by fraud, or undue influence, or lack of good faith, or the fact that one party appears to have taken unfair advantage over another party...” (s. 38 (3)). It is indicative of the overall spirit of the Act that this kind of safeguard is put in the hands of the head administrator, rather than the courts. The provision of retroactive administrative scrutiny only serves to add an unnecessary layer of bureaucracy and uncertainty to what is already a dense wall of bureaucratic procedures and discretionary decision-making. Considering all the above, it is clear that the new Act provides no strong guarantee for would-be sellers and buyers of land that they will not be subjected to undue interference from the Authorities.
The other provision of the Land Act that is seen to be a significant departure from the previous system is the restriction against non-nationals from acquiring land. The one significant exception to this rule is for land acquisitions connected to investments that have Investment Approval.5 The bar against holding land also applies to companies where non-citizens have a majority share holding. Civil activists in Tanzania have lauded the restriction against foreigners holding land, although some might have liked to see still stronger protection against foreigners amassing land at the expense of nationals and smallholders.
Still, it may be argued that the perceived threat of foreign mass-acquisition is easily over-stated. The main threat against the landholdings of smallholders (and urban ‘squatters’ for that matter) is not an unrestricted land market, with or without foreign participation, but a regulated market that may be manipulated by politicians and bureaucrats. There is a wealth of empirical evidence from comparable countries to support this assertion.6
Women’s rights to land
Both the Land Act and the Village Land Act have been hailed as a triumph for the women’s rights movement in Tanzania. Gender activists have been among the most active lobbyists in the national debates surrounding the land acts. They successfully lobbied for the inclusion in the Acts of provisions to ensure equality before the law for women in both statutory and customary tenure. Land Act states as one of its fundamental principles that:
The right of every woman to acquire, hold, use, and deal with, land shall to the same extent and subject to the same restrictions be treated as a right of any man (s. 3 (2)).
The same principle is explicitly laid down in the village land Act to cover customary rights of land (see below).
The Land Act introduces little new in the area of conflict resolution. Section 167 is the only one in the Land Act dealing with dispute settlement, and it does no more than define which courts have jurisdiction of land cases. These are in descending order, the Court of Appeal, the Land Division of the High Court, the District Land and Housing Tribunals, the Ward Tribunals and the Village Land Councils. Of these, the Land Division of the High Court and the District Land and Housing Tribunal are new bodies. There may be a virtue in creating special divisions in the court for dealing with land matters, but it is doubtful whether this in its own will have a substantial impact on the court system’s processing of land cases. The Ward Tribunals are already virtually defunct as argued in Chapter 5, and as we will see in the following section, the Village Land Councils are not strictly judicial entities, and are not likely to have an appreciable impact on the incidence of land litigation.
Concluding comments on the Land Act
To summarise, the Land Act represents no significant reform of the present system. One’s judgement of the new law, therefore, would differ according to one’s assessment of the legal and institutional set-up prior to the Act. If one accepts the diagnosis put forth in much of the contemporary analysis of land in Tanzania (e.g. Bruce 1994 and 1994a, Hoben et. al. 1992, URT 1994, Sundet 1997, and Shivji 1998), that the land administration is at various stages of breakdown, one’s inescapable conclusion would be that the enactment of the Act provides no significant improvement on the legislation it replaces. What is needed, and what the Act fails to accomplish, is to address the fundamental problems of the system. These are over-centralisation of the land administration and the amassing of powers to control in detail the ownership and utilisation of land. Powers which are either beyond the capacity of the land administration to enforce in a professional and rational manner or which merely lend themselves to abuse.
If one believes that the present system is essentially sound, on the other hand, on may take a more positive view of the Act. The people of this persuasion tend to view the main problem as one of ensuring compliance with the laid-down regulations. This is the opinion voiced by the Tanzanian administrators, who are the main authors of the National Land Policy we encountered in earlier discussion of the making of the policy. If one accepts this assessment, the daunting challenge remains one of bringing about massive capacity building in the land administration. Not least, successful implementation of the Policy and the Acts will depend on the establishment of enforceable procedures to institute a satisfactory degree of transparency and accountability in this high margin business.