Having looked at the period after independence in the previous chapter, this chapter also focuses on the period after independence but with specific focus on the period from 1990s. This period is key to land law as it has specific impact to the current land law. Therefore, the chapter underpins the period towards economic liberalization and its effects to the development of land law in Tanzania. The chapter also provides the objectives of the National Land Policy of 1995. It should be remembered that in 1999 the Land Acts were enacted as a result of social pressure, the national Land Policy and some of the recommendations of the Presidential Land Commission. This chapter also attempts to provide some of the recommendations that were incorporated in the Land Acts and those that were rejected.

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The Urbanization Scheme: Reversing Ujamaa

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This scheme was characterized by granting or disposition of right of occupancy in town centres and surveyed areas. There was also redevelopment process under the Town and Country Planning Act (TCPA) in squatters and slum areas which were converted to built up or development areas. As a result, there has been general engulfing of peri-urban areas by the expanding town boundaries. This was achieved by declaring such areas to be planning areas under the TCPA under the assumption that any pre-existing rights would be extinguished. During the colonial era, efforts at urbanization were effected inter alia through Government Circular No. 4 of 1953 which provided that ‘the intention was that in a township all the land should be alienated from tribal tenure and that Africans should obey the same laws of the territory with regard to their occupation as members of any other race.’ The disposition of land in a township became largely a matter of town planning but administrative action lied with the District Commissioner in the case of expanding townships for which new and wider boundaries were proclaimed by the Governor in dealing with the question of rights of Africans living in accordance with African customary law on land which it became necessary to include within a township.

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The spirit of the circular was carried over even after independence. There were massive dispossessions on the assumption that once an area is declared to be a planning area, customary rights were forthwith extinguished. Allocations have sometimes been preceded by surveys and at times the allocated land did not appear in the plans. New plots not appearing in the plans were created and the existing plots sub-divided. Pressure from authorities caused allocation in open spaces, recreational grounds, school compounds, cemeteries, ecologically fragile areas i.e. beaches and natural drainage areas. There was also serious double allocation as one could be given the letter of offer and another the certificate of occupancy.

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Under the liberalization scheme, the objective was to create an enabling environment for free market, encourage foreign investment and private companies. It was a period overshadowed by implementation of the IMF, and World Bank policies coined in the phrase SAPs (Structural Adjustment Programmes). Following the socio-economic challenges that unfolded at the time, a Presidential Commission was formed to look into land issues pertaining to land tenure and propose recommendations. Few days after the Commission’s Report was submitted the Regulation of Land Tenure (Established Villages) Act of 1992 was passed. The effect of the Act was the landmark case of AG v. Lohay Akonay & Joseph Lohay.

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Among the problems identified by the Commission were conflicts between granted right and customary right, shortfalls of villagization programme (operation Vijiji), increased land disputes, land speculation by rich folks, inadequate compensations, overwhelming control of the state over land (radical title) and engulfing of village land by expanding townships and cities (urbanization).

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In the Report of the Commission, it was proposed that land had to be a constitutional category. It was proposed so due to the fact that land is an important resource. Any process to alter its rules should be the subject of a checked procedure. But also in case land was to be acquired, it had to be subject to the due process of law. Hence, major principles governing land should be entrenched in the Constitution. According to the National Land Policy (NLP), this implied that four basic land tenets were to be entrenched in the Constitution to ensure continuity. These tenets are: (a) all land in Tanzania is public land vested in the President as a trustee on behalf of all citizens, (b) Land has value, (c) the rights and interests of citizens in land shall not be taken without the due process of law, and (d) full, fair and prompt compensation shall be paid when land is acquired. This was intended to strengthen the security of land tenure. This could also protect land from political and administrative decisions as constitutional amendments attract broader public attention. Therefore, it could bring land into the centre of democratic governance.

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Since the German colonialism, land has been under the monopoly of the state. The Commission was of the view that monopoly over land should no longer be vested in the political entity, the President. Land had to be divided into national lands and village lands. The National Lands were to be under the National Land Commission which was to be governed by a Board of Commissioners in trust for the use and benefit of all Tanzanians.

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The National Land Commission was to be politically accountable to the National Assembly which actually meant its political trust was to the National Assembly. On the other hand, it was to be legally accountable to the people of Tanzania. This was a legal trust and in case they disobeyed, they could be challenged in courts of law.

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Village lands were to be under the respective village assemblies in trust for the use and benefit of the villagers. The village assembly was considered to be more democratic as it is not an executive organ. The village assembly was deemed to have a legal trust and if it breached the trust, it could be sued accordingly.

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Village lands were to be inalienable to outsiders. One had to become a member of the particular village to be able to acquire title in a village land. The governance and regulation of village land was to be under customary tenure. Hence, land could be claimed under customary law and was to be allocated by village authorities in this case village councils. Village land was to be capable of registration in the Register of village land and a certificate was to be issued HAM (Hati ya Ardhi ya Mila) i.e. certificate of customary right of occupancy. Due to the need to watch against land speculation, it was considered necessary to have limitation on the amount of land a person could hold and procedures for disposing of the same. The amount proposed was 200 acres.

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It was also proposed that the certificate of customary right of occupancy had to be negotiable and transferable except to outsiders. All transfers were to be registered with the village