¹ The research for this article was done under the auspices of the Sonderforschungsbereich 214 research programme at the University of Bayreuth, Department of Civil, International and Comparative Law, financed by the Deutsche Forschungsgemeinschaft (DFG), Bonn. Materials and documents gathered for this article reflect events up to August 1995. My heartfelt thanks go to the Attorney-General's Office and the Lands Office of Zanzibar.

² See protests against this policy in Zanzibar Protectorate, Debates of the Legislative Council, 29th Session, 1954–55, 162. Cf.Middleton, John, Land Tenure in Zanzibar, London, 1961, 75, n. 2Google Scholar; Shao, Ibrahim Fokas, The Political Economy of Land Reform in Zanzibar, Dar es Salaam, 1992, 21–25.Google Scholar

³ See Shao, op. cit., 49; Zanzibar Protectorate, Administrative Reports for 1931, Zanzibar, 1932, 65Google Scholar; Zanzibar Protectorate, Debates of the Legislative Council, 3rd Session, 1928–1929, 48–50; 25th Session, 1950–51, Zanzibar, 95.

⁴ “Shirazi” derives from the original settlers in Zanzibar from Shiraz in Persia, who are said to have founded the Zenj Empire on the coast towards the end of the 10th century, and intermarried with the peoples already on the island and peoples coming from the African mainland. As for the Afro-identity, see an attempt to wade through and reduce the complex group identity of Africans in Zanzibar to one definition in Middleton, op. cit., 7–9.

⁵ The Afro-Shirazi Party became the main ruling party in Zanzibar. According to its preindependence platform, the land was the property of the community and inalienable: “Land belonged to the Africans and the squatters, … [who] had inalienable rights to settle on and cultivate the plantations. … [It] contended that 80% of the fertile land and the bulk of the trade and industry were in the hands of the minority. …” (Shao, op. cit, 41–42). Cf. Sharifu bin Haji bin Fumu v. The Administrator-General, 8 Z.L.R. 282 (1951)Google Scholar, where Chief Judge Gray of the Sultan's court found that less fertile areas were occupied by the African indigenous tribes and held under “native customary tenure” and the more fertile lands held under “Muslim tenure analogous to English freehold” (at 285). He upheld a deed of sale executed by an Arab against counterclaims under African tenure (occupation claimed through an ancestor). See also The Descendants of Sheikh Mbaruk Bin Rashid v. Min. for Lands (1960) East Africa Law Reports 348 on whether Arabs settled by the German administration since 1896 on the mainland could be treated as Africans.

⁶ Moloney to Lees, Lagos Lands, 8 January, 1879, in Newbury, C.W., British Policy Towards West Africa, Select Documents, 1875–1914, Oxford, 1971, 518:Google Scholar “The question of Native holdings … will be found very complicated. … The King himself possessed merely a life interest and accordingly was only able to bestow a similar interest on his people. … The greater portion of the Native population have [sic] been allowed, as it is customary, to settle. … The difficulty to distinguish such cases from those of squatters and from occupations the result of squatting originally will be found very great.” For the relation between “private and common ownership”, see Tidiane Ngaido, “Land tenure and social structure of the Halaybe” in Park, Thomas K. (ed.), Risk and Tenure in Arid Lands: The Political Ecology of Development in the Senegal River Basin, Tucson and London, 1993, at 147–148.Google Scholar

⁷ Zanzibar Act, 1963 (c. 55).

⁸ Zanzibar Protectorate, Report of the Constitutional Commissioner (Sir Hilary Blood), Zanzibar, 1960, 11.Google Scholar

⁹ Act 22 of 1964; Lobulu, R.N. Ben, “The rule of law in Zanzibar”, (1973) 5 Journal of the Dar es Salaam University Law Society 74.Google Scholar

¹⁰ The [Zanzibar] Interpretation of Laws and General Provisions Act No. 7 of 1984, s. 17(1): “No Act enacted by the Union Parliament shall extend to Zanzibar unless the Act in question is specifically on Union matters and is passed in accordance with the requirements under the provisions of the Constitution of the United Republic.”

¹¹ Section 8 of Act No. 14 of 1979; Act No. 15 of 1984 (in force 1 March, 1985), Fifth Amendment of the State Constitution of the United Republic of Tanzania, First Addendum, Union Matters, No. 17; The Interpretation of Laws and General Provisions Act No. 7 of 1984, s. 1, “‘the Court of Appeal’ means the court to which appeals lie from the High Court under [sic] laws of Zanzibar”. For more recent literature see Shivji, Issa G., The Legal Foundations of the Union in Tanzania's Union and Zanzibar's Constitutions, Dar es Salaam, 1990Google Scholar; Bakary, Abubakr Khamis, “Post independence constitutional development in Zanzibar”, LL.M. Thesis for the University of West Indies, 1992Google Scholar; Kabudi, Palamagamba John, “The United Republic of Tanzania after a quarter of a century: a legal appraisal of the state of the union of Tanganyika and Zanzibar”, (1993) 5(2) Revue africaine de droit international et comparative 310–339.Google Scholar

¹² Act No. 15 of 1984 (in force 1 March, 1985), 5th Amendment of the State Constitution of the United Republic of Tanzania: Article 64(2), Bryde, Brun-Otto and Blaustein, Albert P., The United Republic of Tanzania No. 15 of 1984 Constitution: 5th Amendment of the State Constitution of the United Republic of Tanzania.Google Scholar

¹³ Act No. 15 of 9 October 1984 (in force 1 January, 1985), Laws of Zanzibar.

¹⁴ Act No. 2 of 1992, “An Act to Amend the Constitution of Zanzibar, 1984 and Matters Connected Therewith”, s. 12 in Legal Supplement (Part I) to the Zanzibar-Revolutionary Government Gazette, v. CI, No. 5603 of 15 August, 1992.

¹⁵ Legal Supplement (Part I) to the Zanzibar Gazette, Vol. LXXIII, No. 4347 of 21 March, 1964Google Scholar. Repealed explicitly by Land Tenure Act No. 12 of 1992 (15 September, 1992) (s. 69(1)(e)).

¹⁶ S. 2(1). The President could waive compensation if the acquisition without compensation “would not cause undue hardship to the owner thereof”.

¹⁷ For example, the Confiscation of Immovable Property (No. 17) Order, 1966, L.N. 22, and 42 of 1966, etc.Google Scholar

¹⁸ Presidential Decree No. 13, made 18 May, 1965 (copy in Attorney-General's Office) and repealed expressly by the Land Tenure Act No. 12 of 1992 (15 September, 1992) (s. 69(l)(c), discussed below). “Developed” meant “land upon which building, structure or other erection has been constructed or over which engineering, mining, or agricultural operations have been carried out” (s.2(2)).

¹⁹ Section 2(1). This proviso is probably due to the influence of the even then less-than-revolutionary Attorney-General Wolfango Dourado, who drafted all legislation at that time. It conformed to Presidential Decree No. 1 of 1964 (Existing Laws Decree, 1964) (in Legal Supplement (Part I) to the Zanzibar Gazette Extraordinary, Vol. LXXIII, No. 4347 of 21 March, 1964)Google Scholar, whereby all laws in force before 11 January, 1964, were to continue to be in force and “read with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the republican status of Zanzibar”.

²⁰ Legal Supplement, Zanzibar-Tanzania Gazette, Vol. XCIII, No. 5364 of 6 October, 1984Google Scholar. But Decree No. 11 of 1979 (Legal Supplement, Zanzibar-Tanzania Gazette, Vol. LXXXVIII, No. 5176 of 14 July, 1979Google Scholar) required compensation for confiscated houses that were built with loans from the Tanzania Housing Bank. Unlike the Protectorate Government that had been faced with a similar problem, the Revolutionary Government did not take over the loan. Decree 11/79 has been repealed by the Land Tenure Act of 1992.

²¹ This Act has not been repealed explicitly by the Land Tenure Act No. 12 of 1992 (15 September, 1992) (s. 69(l)(e)), but could be deemed to have been repealed by the Land Tribunal Act No. 7 of 1994 (24 February, 1995) as it is inconsistent with the latter's provisions (s. 47(1)).

²² See explanations in Hamid Mahmoud Hamid, Attorney-General, Investment Act 1986 and Guidelines for Investors, Zanzibar Government, citing Article 17 of the Zanzibari Constitution of 22 January, 1986.

²³ A Decree to make provision for the distribution of land and plantations, Legal Supplement (Part I) to the Zanzibar Gazette, Vol. LXXV, No. 4461 of 26 February, 1966Google Scholar. For statistics on the number of confiscations see Shao, op. cit., 50–51. Because of financial and time constraints, Shao could not calculate the total acreage involved. The official figures show a total of 745 shambas formerly held by 72 landlords, mostly Arabs. The Act has been repealed by the Land Tenure Act No. 12 of 1992 (15 September, 1992), but “without prejudice to matters done under [this] Decre[e]” (s. 69(1)(d)).

²⁴ This is similar to the experience that the Tunisian government had already had with the fragmentation problems of the Islamic law of inheritance. See Jones, C.C., “Law and Development: The Law of Bequests in the Context of Land Reform in Tunisia”, University of London Ph.D. dissertation, 1974.Google Scholar

²⁵ Cf. Sharifu bin Haji bin Fumu and 4 Ors v. The Administrator-General of Zanzibar and 3 Ors, 8 Z.L.R. 283 (1951)Google Scholar, in which witnesses claiming that the shamba was a “kiambo” held under African customary tenure also asserted that the law of inheritance governing the shamba, however, was Islamic (at 290).

²⁶ Capt. Barton, First Minister of the Zanzibar Government v. Mahomed bin Diwani and Msengeni Wadi Shamte, 1 Z.L.R. 335 (1910)Google Scholar. See also The Government of His Highness the Sultan of Zanzibar v. Vasanji Gokaldas, Administration of the Estate of Damodar Jeram, 1 Z.L.R. 154, 3 March, 1903Google Scholar, at 156: Mr Cowan, the Government Rent Collector, gave evidence on some 5,000 inhabitants on the Sultan's lands.

²⁷ Shao, op. cit., at 54, reports shambas being taken over again by the Government for other reasons too, such as incapacity to work the land by reason of old age or imprisonment.

²⁸ Khatibu Abdallah Makame v. Said Idd Bavuai and Ors Civ. 32/1989, 26 February, 1990, High Court of Zanzibar (unreported).

²⁹ Shao, op. cit., describes the actual distribution process, and notes that there was no machinery for controlling corruption in the land distribution. The Revolutionary Council saw fit indeed to enact the Decree No. 4 of 1975 “to provide for the more effectual prevention of corruption” (in Zanzibar Laws, 1975) and established an Anti-Corruption Unit under the supervision of the Chairman of the Revolutionary Council (Revolutionary Council Decree No. 2 of 1980 (Prevention of Corruption (Amendment) Decree), Zanzibar Laws, 1980).

³⁰ “Family” was not denned. Shao, op. cit., at 51 and 57, says that while the size of the family was taken into account in the distribution of the land with a minimum of three acres, a family seems to have been deemed to consist only of four to six persons, and Revolutionary Councillors got nine acres. In an “average family”, two to three members perform the agricultural work together, but the “average family” cannot live from agriculture alone, so that most are also engaged in other seasonal or part-time occupations (e.g. charcoal production, weaving). See Wirth, F. et al. , A Baseline Survey for the Identification of Farming Systems in Zanzibar, Berlin, 1988, 30–31Google Scholar. Cf. Lofchie, Michael F., The Policy Factor: Agricultural Performance in Kenya and Tanzania, Boulder, 1989, 187–188Google Scholar, who is convinced that successful agriculture depends on governing elites with strong ties to the countryside who derive income from their investments in agricultural land and who can offer their government salaries as collateral for loans.

³¹ Zanzibar Revolutionary Government, Statistical Abstract 1991, Department of Statistics, President's Office, Ministry of State (Planning), Zanzibar, 1991, 1 (area) and 9 (population).

³² Wirth, op. cit., 20 and 173.

³³ The 40.6% excludes the student population, according to the 1993 statistics. Over 48.6% of the total population lives in the rural area (Zanzibar Revolutionary Government, Statistical Abstract 1991, Household Budget Survey 1991: Basic Social, Demographic and Housing Characteristics (Analytical Report), February, 1993, 10 and 4, respectively). The number of families and acreage involved in the distribution up to 1974 is taken from Shao, op. cit., 51. Shao thus concludes that “only a small portion of the fertile land that had shambas” was distributed. The rice valleys were not distributed (53). What has not yet been calculated is the total acreage and number of persons affected by the confiscations and to what extent the latter figures correspond to redistribution figures.

³⁴ I do not wish to draw here any conclusions about whether there were or are parallels between the notions of equity/justice in land distribution that informed the Zanzibar land tenure legislation and economic performance, given that the former is largely a result of internal dialectics, and the latter too interconnected with international economics. Cf. Tatu Vanhanen, The Emergence of Democracy: A Comparative Study of 119 States—1850–1979, Ann Arbor, 1984Google Scholar, and Shao, op. cit., 92. World Bank economists make a case for Ghana, Kenya and Rwanda that there is no correlation between productivity and land tenure systems. See Migot-Adholla, Shem et al. , “Indigenous land rights systems in sub-Saharan Africa. A constraint on productivity?” (1991) 5 The World Bank Economic Review 155–175.CrossRefGoogle Scholar Cf. Wirth et al., op. cit., who argue that potential production is lost when the land tenure system prohibits ownership of trees on land borrowed (20, 23, 132–133).

³⁵ Legal Supplement (Part I) to the Zanzibar-Revolutionary Government Gazette, Vol. XCVIII, No. 5498 of 7 January, 1989Google Scholar. The different names of the Decrees (“Presidential, Revolutionary Council, House of Representatives”) and of the Gazettes are immaterial for identifying the Act to be found. On the differing attitudes of farmers, see Nelson-Richards, Melsome, Beyond the Sociology of Agrarian Transformation. Economy and Society in Zambia, Nepal and Zanzibar, Leiden, 1988, 106–107.Google Scholar

³⁶ Shao, op. cit., 55 and 62.

³⁷ Commission for Land and Environment Act, 1989, Laws of Zanzibar, 1989, mimeo. (Not all laws have been bound or published yet in the Gazette since paper is terribly expensive.)

³⁸ Despite provisions in the Land Distribution Decree to the contrary, the Ministry of Agriculture has been receiving and granting applications for selling and leasing the grants of land received from the Government (Shao, op. cit., 62).

³⁹ In England all lands are vested ultimately in the Crown (Gray, Kevin, Elements of Land Law, London, 2nd edition, 1993, 55Google Scholar). This approach has also been adopted in several Arab states, which have vested all lands in the government (see Ziadeh, Farhat J., Property Law in the Arab World. Real Rights in Egypt, Iraq, Jordan, Lebanon, Libya, Syria, Saudi Arabia and the Gulf States, Graham & Trotman, 1979, 36).Google Scholar

⁴⁰ S. 2. “Occupancy” is not mentioned in the Commission for Land and Environment Act of 1989, but is defined in the Interpretation and General Provisions Act No. 7 of 1984, s. 4: “‘occupy’ includes use, inhabit, be in possession of or enjoy the premises in respect whereof the word is used, otherwise than as a mere servant or for the m[e]re purpose of the care, custody or charge thereof”.

⁴¹ Cunnach v. Edwards 1896 2 Ch. (Chancery) 679 in Roger CotterellGoogle Scholar, “Power, property and the law of trust: a partial agenda for critical legal studies”, in Peter, Fitzgerald and Alan, Hund (eds.), Critical Legal Studies, Oxford, 1987, 77–90, at 88.Google Scholar The process of giving all land an owner in Zanzibar was already evident in the 1921 and 1951 Public Lands Decrees enacted by the Protectorate Government, by which the notion of public lands vested in the Government covered waste lands and all land occupied by “natives” (lands owned by Indians and Arabs being by implication “private land”). See Zanzibar Protectorate, Debates of the Legislative Council, 29th Session, 1954–55, 162; Middleton, op. cit., 71.

⁴² Cf. the assumption in Europe that ownership is distinct from occupation, in Alain Pottage, “The measure of land”, (1994) 57 The Modem Law Review 361–384, at 372.CrossRefGoogle Scholar

⁴³ Ibid., at 364, 369 and 373, on how investments in land in the second half of the 19th century in England were not hampered by less than impeccably secure titles.

⁴⁴ Muhammad ibn Isma'il Bukhari, Sahih, (Cairo), al Babi al Halabi, 1953, Vol. 2, 33Google Scholar (Kitab: wakalat; Bab: harth); and Sulaiman ibn al-Ash‘ath al-Sijistani Abu Da’ud, Sunan, (Cairo), al Babi al Halabi, 1983, Vol. 2, 253–257 (Kitab: buyu‘; Bab: muzara‘a).Google Scholar

⁴⁵ In England, although title to all lands vesting ultimately in the Crown is seen as a “technicality”, it has practical consequences in the law of escheat and foreshore and forecloses acquisition of ownership by working or settling on vacant land (Kevin Gray, op. cit, 55).

⁴⁶ “An Act to provide for land ownership, use and rights attached to land and matters connected or incidental thereto” (15 September, 1992).

⁴⁷ S. 3(1) and (2). Subsection (2): “Public land is declared to be vested in, and at the disposition of the President, to be held by him, for the use and common benefit, direct or indirect, of the people of Zanzibar.” Under the Decree No. 13 of 1965 all land was vested simply in the “Government”. The 1992 Land Tenure Act specifies the President. This is similar to mainland Tanzania. See Coldham, Simon, “Land tenure reform in Tanzania: legal problems and perspectives”, (1995) 33, 2The Journal of Motion African Studies 227–242, at 232.CrossRefGoogle Scholar

⁴⁸ “Land tenure in Zanzibar: a review of the Land Tenure Act of 199[2]”, mimeo, Department of Lands, Zanzibar, n.d.

⁴⁹ Parts III–VI of the Act. From the Department of Lands mimeo, ibid.: “All land [other than public land] is land owned by the Government but allocated to private persons who hold the land individually, jointly or as part of a group (communally).”

⁵⁰ S. 3(1) of the Land Tenure Act speaks of “occupied” and “unoccupied” lands in respect of vesting the President with all land of the islands of Zanzibar. See definition of “ownership” including “occupancy” under Commission of Land and Environment Act above. Cf. history of the notion of “occupancy” as set out in the Kenyan appeal case of Watcham v. The Attorney-General on behalf of the Government of the East Africa Protectorate, Privy Council Printed Cases in Appeals, 1918/Judgment No. 54, Vol. 14, in which evidence submitted revealed that the colonists could acquire land only by permit from the colonial government. The latter was prepared at the turn of this century (1900) to grant to European colonists only “permits to occupy land”. There were practical reasons for this (Exh. 18, 38). First, the land could not be easily and quickly surveyed. Secondly, Africans' concepts of seasonal or pastoral occupancy did not fit neatly into the British aims of selling title to so-called “vacant” lands to colonists. Africans were eventually given a right to compensation for cultivated land, but denied compensation for loss of grazing rights over larger stretches of land that came to be called “uncultivated” and thus “vacant public land” (6–7). Such “occupancy” rights further protected the colonial authorities from being sued by colonists for a guarantee of “title”.

⁵¹ S. 3(1). For definition of “natural” land see Commission of Land and Environment Act of 1989, above.

⁵² S. 4. The lands confiscated during this period remain confiscated, unless irregularities are proved and the matter reopened and adjudicated.

⁵³ S. 56. Termination for reasons of national interest entitles a person to compensation for the land and unexhausted improvements. Otherwise compensation is only payable for unexhausted improvements, s. 63.

⁵⁴ S. 11(2) of the Registered Land Act of 1989 provides for establishing two separate registers, one for public land and one for private lands.

⁵⁵ Ss. 16 and 17. This provision of course still allows the Kadhi Court to apply the Islamic law of succession by assigning the shares in a property, but prevents the heirs from actually severing their part. Tunisia has a similar rule (Jones, C.C., “Law and Development: The Law of Bequests in the Context of Land Reform in Tunisia”, University of London, Ph.D. dissertation).Google Scholar

⁵⁶ S. 140(1) of the Registered Land Act bars entitlement to registered public land even after 12 years of uninterrupted occupation.

⁵⁷ In Legal Supplement (Part I) to the Tanzania-Zanzibar Gazette, Vol. LXXVIII, No. 4630 of 15 February, 1969.Google Scholar

⁵⁸ Ally Kombo Haji and Anor v. Haji Haji Ngwali and Anor, Civ. App. 21/1987, 21 January, 1988, High Court of Zanzibar (unreported), interpreting Decree No. 13 of 1965 that made the Government owner of all land in Zanzibar, and which has been repealed by the Land Tenure Act of 1992.

⁵⁹ Zanzibar Protectorate, Debates of the Legblative Council, 5th Session, 1930–31, 11; see Pottage, “The measure of land”, op. cit., 366, on the failure of registration under the Land Transfer Act of 1862 in England, owing to landowners wanting to keep boundaries conveniently vague; see Khadija Issa Sharif v. Abdulla Omar Hamis, Civ. 30/85,2 September, 1985, High Court of Zanzibar (unreported), on problems of forged and lost documents. Cf. Watcham v. The Attorney General on behalf of the Government of the East Africa Protectorate, Privy Council Printed Cases in Appeals, 1918/No. 54, Vol. 14, 98ffGoogle Scholar, in which the British complainant had lost the certificate of occupancy.

⁶⁰ Said bin Awad v. Mahfuz bin Ahmed, 1 Z.L.R. 189 (1905), at 190 and 193.Google Scholar But payment of rent in such “sales” was not required when the borrower needed the credit simply to stay alive (see Sheikh Burhan bin Abdulazizi el-Amawi v. Khalfan bin Salim el-Barwani and Anor., 4 Z.L.R. 90 (1929), at 95).Google Scholar

⁶¹ This would probably apply only to rights of occupancy over land not received as a grant from the Government, since the grantee pays, according to section 24(2) of the Land Tenure Act, only set fees, and not for the value of the land included in the grant.

⁶² Ss. 63 and 64. Ingrams, W.H., Zanzibar. Its History and its People (1931), London, 1967, 274–275Google Scholar, notes that traditionally no value attaches to the land itself, its price being determined not by the soil but by its accessibility and the economic trees and plants on it. The quality of the soil was to be counted indirectly, as a fruit tree in good soils yielded more than one in poor soils. Cf. Lalata Msangawale v. Henry Mwamlima in 1979 The Law Reports of Tanzania, No. 3, 13–26, where the High Court in Dar es Salaam ordered an Ujamaa village taking over an individual's land to pay compensation only for the unexhausted improvements, on the basis of the principle that each has the constitutional right to receive a just return for her or his labour spent in clearing the land, thus implying that the physical land in itself cannot/should not be taken into account (at 25).

⁶³ Ss. 63 and 64 of the Land Tenure Act No. 12 of 1992 (15 September, 1992). In s. 2 ”‘unexhausted improvement’ means anything permanently attached to the land resulting from the expenditure of capital or labour by a holder of a right of occupancy or a lessee, or any person authorized to act on their behalf which increases the productive capacity, utility or amenity of the land”.

⁶⁴ Following the rule of the Zanzibari appellate case of Secy. of State and Charlesworth, Pilling (1901) A.C. 373.Google Scholar

⁶⁵ S. 41(3) of the Land Tribunal Act No. 7 of 1994.

⁶⁶ Cf. Gordley, James, “Myths of the French Civil Code”, (1994) 42 American Journal of Comparative Law 459–505, at 503 on the diversity of law of mortgages in the American states.CrossRefGoogle Scholar

⁶⁷ Ibid., at 463ff, on property rights being subject to common good despite the rhetoric of the absolute and individualistic right to property.

⁶⁸ S. 42. Refusals of grant may be contested in the Land Tribunal which is to be set up (draft Act), subject to review by the High Court only if a point of law is involved (s. 38). Cf. “right to property” in Coldham, “Land tenure reform in Tanzania”, op. cit., 240.

⁶⁹ Zanzibar Protectorate, Debates of the Legislative Council, 3rd Session, 1928–1929, Zanzibar, 35 and 48Google Scholar; Administrative Reports, for the Year 1931, Zanzibar, 1932, 134 and 155.Google Scholar

⁷⁰ Saleh Lalji v. Mohomed bin Ahmed bin Hemid and Mula Mahomedbhai Adamji, 1 Z.L.R. 423 (1913)Google Scholar. Ingrams, Zanzibar. Its History and its People believed that pre-emption was, however, practised (at 267). The Land Tenure Act of 1992 limits pre-emption to trees.

⁷¹ Hassan bin Ante Shirazi v. Suheil bin Kirobo, 7 Z.L.R. 112 (1950).Google Scholar

⁷² Zanzibar Protectorate, Debates of the Legislative Council, Official Report, Session for 1926–1927, Zanzibar, 123–124Google Scholar; Session for 1927–1928 (2nd Session), 21.

⁷³ Hemeid bin Khalfan el-Naamani v. Mohamed Suleiman Nasser Lemki, 8 Z.L.R. 267, at 272.Google Scholar

⁷⁴ A full inventory of how much acreage lies under waqf has not been completed. The Register from 1923 is a starting point for the inventory.

⁷⁵ The waqf was for “defending [the El Wurdi tribe] from any ruler who attempts to exact taxes from them …”. Waqf served various social aims of various social groups. Omani Muscat families related to the former Sultan had created deeds of waqf for the maintenance of their family descendants or of graves and for protection against taxation (see for example, Suleman bin Ahmed v. Salem bin Abdalla el-Wardi, 1 Z.L.R. 328 (1910)Google Scholar; Bavuai and Ors v. Abdalla and Ors, High Court of Zanzibar, Civ. App. No. 16/1988, 17 November, 1988 (unreported). Khoja families from India, with a combined Hindu–Islamic tradition, secured themselves against foreclosures on mortgages and attachment for debts by putting their realty in waqf (see for example, Frammze, P. Doctor, Administrator of the Estate of Premji Khirnji, dec'dv. Mahomed Premji, Suria Sukum, Sikina Binti Allarakhia, 1 Z.L.R. 306 (1910), at 307Google Scholar. In Zanzibar the custom dictated that no rents be charged on such charitable lands. See The Government of His Highness the Sultan of Zanzibar v. Vasanji Gokaldas, Administrator of the Estate of Damodar Jeram, 1 Z.L.R. 154 (1903)Google Scholar; Wakf Commissioners v. Ramchor, 1 Z.L.R. 227 (1910).Google Scholar

⁷⁶ Legal Supplement (Part I) to the Zanzibar-Tanzania Gazette, Vol. LXXXIX No. 5198 of 26 January, 1980Google Scholar. See also Presidential Decrees No. 12 of 1966 and 7 of 1966, Laws of Zanzibar, 1966 and 1967.

⁷⁷ The Protectorate Government had left a legacy of increasing restrictions on the formation of waqfs. The Protectorate courts held provisions in waqf deeds diat prohibited alienation, attachment for debt or mortgaging as against public policy. See Framboze v. Premji, 1 Z.L.R. 306 (1910)Google Scholar; Fatmabai Essa Sulleman v. Administrator-General and Ors, 7 Z.L.R. 161 (1938)Google Scholar. The Protectorate Government was also careful to assure that the government members sitting on the Commission were sufficient in numbers not to be outvoted by the other private and religious members (Zanzibar Protectorate, Debates of the Legislative Council, Official Report, Session for 1926–1927, Zanzibar, 123–124Google Scholar; Session for 1927–28 (2nd Session), 21).

⁷⁸ The Wakf Validating Decree of 1946. See Saleh v. Administrator-General, 5 Z.L.R. 8 (1938)Google Scholar; Ali v. Zwena, 1 Z.L.R. 365 (1911)Google Scholar; Anderson, , Islamic Law in Africa, London, 1970, 64.Google Scholar

⁷⁹ Trusts include those made under English or Hindu laws (for example, Shiva Rao v. Nagapa (1905) 29 Madras 117 cited in The Wakf Commissioners, Zanzibar v. Shawana Binti Seif bin Hamound el-Busaidia and Ors, 8 Z.L.R. 187 (1946)).Google Scholar

⁸⁰ There is no explicit restriction in the Decree No. 5 of 1980 limiting the administration of estates or waqfs to only Muslims. Although questions of conflict of laws and customs are settled by the competent Secretary-General of the Wakf Commission, any further legal questions may go only to the High Court. Under Act 2 of 1985 (“The High Court Act”, Legal Supplement (Part I) to the Zanzibar-Tanzania Gazette, Vol. XCIV No. 5380 of 23 February, 1985Google Scholar), the High Court of Zanzibar is subordinate to the Court of Appeal for Tanzania, and the following courts are subordinate to the High Court: Magistrates' Courts, Kadhis' Courts, Juvenile Courts.

⁸¹ Wakf Commissioners v. Shawana binti Seif 8 Z.L.R. 187 (1946)Google Scholar. The Land Acquisition Decree of 1909 (s. 31) had permitted the government to confiscate waqf properties, even though the waqf deed specified the inalienability of the property, and to tender compensation therefor.

⁸² Interviews, August 1994.

⁸³ Under the Protectorate compensation paid for Government acquisition/confiscation of waqf properties was then used by the Wakf Commission to purchase other lands, and if this were not possible, to invest the monies in securities, the interest from which was to be distributed among necessitous Muslims unable to pay rent for their dwelling houses. See The Wakf Commissioners, Zanzibar v. Shawana binti Seif bin Hamound el-Busaidia, 8 Z.L.R. 187 (1946)Google Scholar, in which the persons inhabiting the waqf land rent-free protested against the compensation monies going to the heirs of the deceased dedicator of the waqf.

⁸⁴ Even before the Protectorate, the Sultan of Zanzibar had already established the practice of intervening in waqf properties by permitting reasonable changes in the use of the waqf properties if the original purpose could no longer be fulfilled (Suleman bin Ahmed v. Salem bin Abdalla el-Wardi, 1 Z.L.R. 328 (1910), at 332).Google Scholar A qadi could take over the administration of the waqf in case the dedicator had not appointed a trustee (Tatu bin Said v. The Wakf Commissioners, 4 Z.L.R. 7 (1929)Google Scholar; Shinudav. Wakf Commissioners, 5 Z.L.R. 1 (1934).Google Scholar

⁸⁵ More Muslim lay members with opinions independent of those of the Government and of the qudah were demanded (Zanzibar Protectorate, Debates of the Legislative Council, Official Report, Session for 1926–1927, Zanzibar, 123–124Google Scholar; Session for 1927–28 (2nd Session), 21).

⁸⁶ An Act to Provide for the Adjudication and First Registration of Rights and Interests in Land, and for Matters Connected Therewith and Incidental Thereto, Laws of Zanzibar, 1990 (mimeo).

⁸⁷ Under Act No. 9 of 1990, the Land Surveyors Act (Laws of Zanzibar, 1990, mimeo), only surveyors licensed by the Land Surveyor's Board may survey land for purposes of registration. The Board may hear disputes between a licensed surveyor and the client, subject to appeal to the High Court (but the Court of Appeal is expressly excluded) (ss. 5 and 10).

⁸⁸ S. 23. Cf. Lord Lugard castigating the High Court for ordering the seizure of land from an African judgment debtor out of ignorance of African land law. The Court, he opined, had reached this disastrous decision because it had excluded the evidence of executive officers, who were closer to the ground and presumably less ignorant (The Dual Mandate in British Tropical Africa (1922), London, 5th edition, 1965, 285).Google Scholar

⁸⁹ Compensation for reasons of adjustment is to be distinguished from the issue of compensation for confiscation. The latter could be barred under Act No. 10 of 1983 (see paragraph above on post-revolutionary confiscation decrees), but any problems in this area are to be regulated through the Land Tribunal (see below).

⁹⁰ S. 19(1).

⁹¹ See termination conditions under the Land Tenure Act above.

⁹² Laws of Zanzibar, 1990 (mimeo).

⁹³ This extends the rule of C.R. De Souza v. Pestanji Dhanjibhai, 1 Z.L.R. 22 (1884)Google Scholar. Just as a sale may not terminate a lease, neither may subdivision of the parcel leased.

⁹⁴ Definition of occupancy in Part I of the Land Adjudication Act: “‘Occupation of land’ includes the receipt of rents or profits from the land.”

⁹⁵ Definition of proprietor in Part I of the Act: “ ‘proprietor’ means—(a) in relation to land or lease, the person or body of persons named in the register as the proprietor thereof; and (b) in relation to a charge of land or of a lease, the person or body of persons named in the register of the land or lease in whose favour the charge is made.” S. 28 protects the rights of a proprietor as “rights not liable to be defeated”, but subject to encumbrances.

⁹⁶ As described in Sharifu. v. The Administrator-General of Zanzibar and 3 Ors, 8 Z.L.R. 282 (1951), at 287.Google Scholar

⁹⁷ But which is inconsistent with the Land Tenure Act that does not specify this method of acquisition.

⁹⁸ Assented to 1 March, 1995.

⁹⁹ The remedy was the Alienation of Land (Restriction and Evidence) Decree of 1934 that prohibited any African or Arab from permanently alienating land without the approval of the British Resident. Four out of the 60 applications to the Land Alienation Board in the first year of its existence were refused for lack of agricultural intentions of the transferee (Zanzibar Protectorate, Debates of the Legislative Council, 10th Session, 1935–1936, Zanzibar, 63–64).Google Scholar

¹⁰⁰ The original draft of the Land Transfer Act had provided for the Act to apply retroactively to the redistributed parcels.

¹⁰¹ Sheikh Burhan bin Abdulazizi el-Amawi v. Khalfan bin Salim el-Barwani and Anor, 4 Z.L.R. 90 (1929), at 95.Google Scholar

¹⁰² “‘Transfer’ means the passing of land, a lease or a charge by act of the parties. …”

¹⁰³ Act No. 7 of 1994 (24 February, 1995).

¹⁰⁴ See for example, s. 6(1) requiring that the Chair have knowledge of land issues and have general leadership abilities; and subsection (2) requiring the Assessors to be learned in social practices with a special knowledge of land matters.

¹⁰⁵ S. 13: claims to or termination of a right of occupancy, recovery of public lands, demarcation, registration, development of land, land valuation, compensation, eviction, expropriation, agroindustrial contracts, transfers, leases, subdivisions, sales.

¹⁰⁶ Abdulla Omar Khamis v. Khadija Issa Sharif, Civ. App. 39/87, 6 May, 1988, Court of Appeal of Tanzania at Zanzibar (unreported); Bi. Hawa Mohamed and Ally Sefu, Civ. App. 9/83, 29 November, 1983, Court of Appeal of Tanzania at Dar es Salaam (unreported).

¹⁰⁷ Hart, H.L.A., Essays in Jurisprudence and Philosophy, Oxford, 1983, 201.CrossRefGoogle Scholar

¹⁰⁸ In Zanzibar, both land and education are regarded as sources of security and identity (interviews, 1993). Roger Cotterell, “Power, property and the law of trusts: a partial agenda for critical legal scholarship”, in Peter Fitzpatrick and Alan Hunt (eds.), Critical Legal Studies, at 87, where he contrasts property as security and property as power (in the context of capital) and argues that no adequate distinction has been made between these two dimensions of property. An even more sweeping question was posed by H.L.A. Hart: “Why should rights be limited … to … the negative (e.g. right not to have use of property limited). … Why should property rights, to be morally legitimate, have an absolute, permanent, exclusive, inheritable, and unmodifiable character which leaves no room for … a basic right to the positive service of the relief of great needs or suffering …?” (Essays in Jurisprudence and Philosophy, 203 and 207). It should be noted, however, because of the close aid connection between China and Tanzania, that the notion of land as security was already part of the traditional Chinese land law insofar as land was seen as both security for feeding the nation and as an object of exchange, thus leading at various times in the history to nationalization of land (nearly 200 years ago) or limiting accumulation of land so that the poor would have a greater share (Senger, Harro von, Chinesische Bodeninstiiutwnen im Taiho-Verwatiungskodex. Niida Noborus Beitrag zur Rekonstruktion der Bodeninstitutionen der Tang-Zeit, Wiesbaden, 1983, 30, 33, 42, 43).Google Scholar

¹⁰⁹ Pottage, op. cit., on the reduction of land to paper in the history of registration in England, where “Ownership … [is] … a purely ‘formal’ attribute—freed from the intricacies of a local market (383) …” where local memory was “… the only practicable resource of authentication” (373), so that land has become “a calculable and finite surfact rather than a lived and remembered medium” (381).

¹¹⁰ It can be debated whether the right to work is written into the Fourth Republican Constitution of Ghana (Art. 24(1) (For “pro”: Kufuor, Kofi O., (1993) 26, 4Verfassung und Recht in Übersee 362–371, at 369)CrossRefGoogle Scholar. Cf. Mozambican land law, whereby one has the “right to work the land” (Sachs, Albie and Welch, Gita Honwana, Liberating the Law: Creating Popular Justice in Mozambique, London, 1990, 31–33).Google Scholar For a generality of the demand of land as of right, see Max Gluckman, “Property rights and status in African traditional law”, in Max, Gluckman (ed.), Ideas and Procedures in African Customary Law, Oxford, 1979, 252–265, at 256.Google Scholar

¹¹¹ Jones, Chris, “How the human rights charters neglect women's rights”, in Salau, Fatai K. (ed.), Crisis in Africa, München, 1992, 53–63, on agrarian women.Google Scholar

¹¹² Fisy, Cyprian F., “Power and Privilege in the Administration of Law: Land Law Reforms and Social Differentiation in Cameroon”, Doctorate Dissertation, Leiden University, Leiden, Afrika Studiecentrum, 1992, i and 6.Google Scholar

¹¹³ Differences in approach between the High Court of Zanzibar and the Court of Appeal of Tanzania at Zanzibar are clearly illustrated in the case of Abdulla Ahmed and Khatibu Abdulla Makame, Civ. App. No. 29/1990, Court of Appeal, 5 December, 1990 (unreported). The High Court of Zanzibar had found that one of the parties occupied the land and had planted trees on it, but that the land had in fact been inherited by the opposing party. The parties were relatives. The occupant was ordered to pay compensation for unexhausted improvements to the heir so that he could keep the land. If the occupant failed to pay, then the heir could occupy and would have to pay for the trees planted. The High Court saw no need to award occupation of the land to the heir, since the latter had already had land and would not “suffer much by parting with that portion now in Plaintiff's hands”. The Court of Appeal saw no “justice” or “law” in the “equity” of the High Court's judgment, overturned the order for compensation and awarded the land to the heir. Cf. the Interpretation of Laws and General Provisions Act No. 7 of 1984, s. 6: “Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects as intended by the legislator.”