¹ This article is concerned with the findings and proposals set out in Report of the Presidential Commission of Inquiry into Land Matters, Vol. 1, Land Policy and Land Tenure Structure (Ministry of Lands, Housing, and Urban Development, Tanzania, in co-operation with the Scandinavian Institute of African Studies, Uppsala, Sweden, 1994), pp. xiv+350. Transcriptions of the evidence presented to the Commission have been collected in over 20 volumes. The distribution of Vol. 2, Selected Land Disputes and Recommendations, has been restricted.Google Scholar

² Some pre-existing German titles were recognised and converted to freehold and leasehold titles. These were in turn converted to statutory rights of occupancy after independence.

³ Nyerere, Julius K., Freedom and Socialism/Uhuru na Ujamaa: a selection from writings and speeches, 1965–1967 (Dar es Salaam, 1967), p. 348.Google Scholar

⁴ Ibid. p. 351.

⁵ Although much has been written about villagisation, including McHenry, Dean E. Jr., Tanzania's Ujamna Villages: the implementation of a rural development strategy (Berkeley, 1979),Google ScholarCollier, Paul et al., Labour and Poverty in Rural Tanzania: ujamaa and rural development in the United Republic of Tanzania (Oxford, 1986),Google Scholar and Putterman, Louis, Peasants, Collectives, and Choice: economic theory and Tanzania's villages (Greenwich, 1986), little has been written about the legal aspects.Google Scholar

⁶ The Commission received over 1,000 complaints from members of the public, and concluded both that grievances and disputes over land are substantial and that many of them have remained unresolved over a long period. Report, p. 101.

⁷ Ibid. p. 51.

⁸ James, R. W., ‘Implementing the Arusha Declaration – the Role of the Legal System’, in Dar es Saalaam University Law Journal, 1, 1975, p. 4.Google Scholar

⁹ Ibid. Telford Georges, C.J.

¹⁰ Report, pp. 54–6.

¹¹ Ibid. p. 22.

¹² Ibid. p. 100.

¹³ The Villages and Ujamaa Villages (Registration, Designation and Administration) Act (No 21 of 1975), subsequently repealed and replaced by the Local Government (District Authorities) Act (No 7 of 1982).Google Scholar

¹⁴ Report, p. 23.

¹⁵ Ibid. ch. 9.

¹⁶ Ibid. ch. 10.

¹⁷ Ibid. p. 189.

¹⁸ Ibid. p. 184.

¹⁹ Ibid. p. 143.

²⁰ Ibid. p. 192.

²¹ See ‘Tentative Government Position on the Report of Presidential Commission into Land Matters’, presented to the National Workshop on Land Policy held at Arusha on 16–18 January 1995, and kindly made available to the writer by Issa Shivji.

²² Report, ch. 20.

²³ Customary Land Tribunals were originally set up in the 1960s to deal with disputes arising in the West Lake Region out of the enfranchisement of nyarubanja tenancies, and were subsequently established in other areas to settle land disputes generally. Members are appointed by the Minister of Lands, and appeals from their decisions lie to the Minister, not to the courts. The Commission found that the Tribunals had either fallen into disuse or lost legitimacy with the people as a result of incompetence and corruption.

²⁴ According to the Report, p. 46, out of some 8,471 registered villages, 1,836 had been surveyed, 1,303 certificates prepared, and only 183 registered by June 1991. The Government rejects as inappropriate the idea that, in order to avoid any suspicion of malpractice, there should be popular participation in the survey procedures, but agrees that villagers should be involved in the formulation of land-use plans.

²⁵ Report, p. 131.

²⁶ Ibid. ch. 12.

²⁷ Ibid. pp. 152–3.

²⁸ In 1984 a fully justiciable Bill of Rights (including a right to property) was incorporated in the Constitution of Tanzania.

²⁹ Report, p. 55.

³⁰ Ibid. p. 190.

³¹ Ibid. pp. 191–2.

³² The Commission considers that ‘it is unlikely that there will be a very large number of claims given the hurdles that have to be overcome’, but does admit that in the case of large-scale alienations of village land it is impossible simply to freeze the status quo. Ibid. pp. 191 and 195.

³³ In fact, as Issa Shivji has pointed out in ‘A Legal Quagmire: Tanzania's Regulation of Land Tenure (Establishment of Villages) Act, 1992’, International Institute for Environment and Development, London, 1994, the definition of ‘village land’ creates some uncertainty as to the precise scope of section 3. It means land within a village established as the result of Operation Vijiji, which itself is defined in section 2 as ‘the settlement or re-settlement of people in villages during and at any time between the years 1970 and 1977, for the purpose of implementing the policy of villagisation’. Where villages were established without any settlement or re-settlement of people (e.g. by simply re-drawing boundaries), they would presumably fall outside the Act. Moreover, where lands were redistributed within existing villages, they would also seem to fall outside the Act, and yet it is in just such situations that some of the most bitter disputes have arisen.

³⁴ There still remains some doubt as to the nature of the ‘rights’ acquired during villagisation. Even on the questionable assumption that a village council had the power to allocate land to a villager, what kind of right did the villager obtain? Although the courts have held, and practice on the ground indicates, that land tenure within the villages is governed by customary law, the Act makes a distinction between customary land rights and those acquired during villagisation.

³⁵ Akonaay and Another v Attorney-General of Tanzania [1993, Mrs Justice Munuo], Law Reports of the Commonwealth (London), 1993, 4, p. 37.Google Scholar One dispute in the area which has attracted considerable publicity involved the alienation of Barabaig grazing lands for the establishment of large-sale wheat farming, and is discussed by Mwaikusa, J. T., ‘Community Rights and Land Use Policies in Tanzania: the case of pastoral communities’, in Journal of African Law (London), 37, 2, 1993, p. 144.CrossRefGoogle Scholar

³⁶ Civil Appeal No. 31 of 1994, unreported. This article is more concerned with the outcome of the case than with the legal merits of the decision, although the judgement of the Court given by Chief Justice Francis Nyalali is disappointingly superficial in its discussion of many of the issues.

³⁷ Article 24(a) of the Constitution provides that every person has the right to own or hold any property lawfully acquired, and article 24(2) protects such a person from deprivation of his property ‘without the authority of law which shall set out conditions for fair and adequate compensation’.

³⁸ The distinction being made by the Court seems insignificant. Once the state (the appellants) had conceded that the Act does not exclude the payment of compensation for ‘unexhausted improvements’, this ground of appeal falls away.

³⁹ Although the Court claims simply to be severing the offending words, in fact it is rewriting the provision to accord with the Constitution. Any merit inherent in such an unorthodox approach is somewhat undermined by Chief Justice Nyalali's statement that ‘courts would not normally entertain a matter for which a special forum has been established’.

⁴⁰ Ironically, the 1992 Act was effective to revoke the Extinction of Customary Land Rights Order, Government Notice No. 88 of 1987, under which the Government had formerly operated.

⁴¹ While the details of many of the Commission's proposals are obviously open to question, its methodology and general approach provide a model for other African countries contemplating land-tenure reform.

⁴² For an account of the tension between the courts and the Government, see Peter, C. M. and Wambali, M. K. B., ‘The Independence of the Judiciary in Tanzania: a critique’, in Verfassung und Recht in Übersee (Hamburg), 21, 1988, pp. 72–87.Google Scholar