Land as a Human Right: A History of Land Law and Practice in Tanzania

Preface

Preface Given the focus of the book, “Land as a Human Right: A History of Land Law and Practice in Tanzania,” it is encouraging to state, at the outset, that the use of the language of human rights to address various land issues (particularly acquisition, occupancy, and transfer of land) is a developing jurisprudence not only in Tanzania, but also at the international level. This means that in all matters of property relations, the modern language of a “human right” to access or deal with land by all is replacing the traditional language of a “legal right” to own land by the few and to the exclusion of many. However, we all know that rights (human or legal) and duties coexist . It means that wherever there is a person’s right to deal with land, there is a corresponding duty imposed upon that person to respect the rights of others. Having this in mind, then, my task in writing this book is made simple: to follow and document Tanzanian land law along its line of historical development whereby the thorny issues about “rights” and “duties” of the landed, landless and the intermediaries are demonstratively captured. It is, therefore, my hope that the form and content of the book will encourage students of land law, the practitioners in the Bar and the Bench, and any other interested party along the path to the enjoyment of land law (and practice) in all its aspects. The work is presented in simple language and systematic style, whereby episodes and events are not only interconnected but also interrelated. Moreover, I have not limited my attention only to events in Tanzania, but have also traversed the jurisprudence of Land Law of other countries in order to tap some interpretative devices of our own land law by way of analogies. In this respect, I have referred to cases (reported and unreported, local and foreign) knowing that case law provides tangible content to what would otherwise be pure theory! At xii LAND AS A HUMAN RIGHT times, I have made references to local newspapers as a way of tapping public responses about land related matters. The information therefrom should not be taken as being authoritative; it simply stands as an expression of the public’s attitudes towards the subject. Any deficiency or insufficiency therein need not discourage you, but it should instead breed into you new zeal and vigour as you reflect on the subject and consider making your own contribution to the discussion. I will have succeeded if this book gives voice to the voiceless landless, catalyses awareness on various aspects concerning the land rights, and sets plain ground on which the right to land of the landed and landless may be debated more fruitfully. In writing this book I have relied not only on my own knowledge of the law and practice about the subject (land), but also on the knowledge of many others in and outside the legal profession who have equally written in many areas into which this book has necessarily ventured. Since I cannot fully record my indebtedness to the satisfaction of them all, I should be forgiven as I mention only Professors Issa G. Shivji, Gamaliel Mgongo Fimbo and Chris Maina Peter of the University of Dar es Salaam School of Law. The writing of this book was directed to the many sources which the trio identified. My learned brothers in the Bar and Bench, Mr. Martin Rwehumbiza (Advocate) of Kesaria and Company Advocates, Sigsbert Ngemera of Ntonge and Company Advocates and Honourable Augustine Karichuba Rwizile (SRM) provided me with some relevant authorities in the nature of unreported cases. To them all, and to many other unnamed members of academia, who have contributed to this publication with proposals, corrections and comments, I owe a heavy debt of gratitude. Special and many thanks, again, go to Maria Malingumu Kashonda (Advocate) of Law Care Chambers and current chairperson of TAWLA and Professor H.I Majamba of the University of Dar es Salaam School of Law whose substantial review of the manuscript and comments have significantly enriched its form and content. It cannot go without a mention of my beloved family: wife and children. My wife, in particular has been a responsible woman as she has tolerated all the inconveniences involved in the preparatory work of the book. My children have been a source of pleasure and comfort especially during break times that followed the busy hours of writing. Abdon Rwegasira Dar es Salaam June...