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

Introduction

Introduction Human rights approach has not been immediately relevant to arguments for particular types of land tenure systems. Such an approach, however, is of value in determining the moral weight of competing land rights, when claims made by those who need land but do not own it, are pitted against claims of those who own land but do not necessarily need it. - Winnie Bikaako and John Ssenkumba1 1 BIKAAKO, Winnie and SSENKUMBA, John, “Gender, Land and Rights: Contemporary Contestations in Law, Policy and Practice in Uganda”, at p. 241. xviii LAND AS A HUMAN RIGHT No idea comes from nothing. The idea to write and the choice of the subject matter in this work: Land as a Human Right: A History of Land Law and Practice in Tanzania, was triggered by my own understanding and belief that Human Rights, as a discipline, pervades all aspects of life at all levels of human society. Understanding Human Rights is sine qua non for the better understanding of society and of the laws governing social relations, be it Land Law, Jurisprudence, Family law, Tax Law and so on. As in any other country in the world, the History of Land Law in Tanzania, especially, has been evolving along the axis of rights. The intellectual works of resource persons such as Issa G. Shivji2 and Ringo W. Tenga3 are premised on the obvious fact that the land question has always been a struggle for land rights between, on one hand, those who need land but do not have it (the poor peasants; pastoralists; women; the indigenous people and minorities, on a long list) and, on another hand, those who have plenty of land but who do not necessarily need it. Gamaliel Mgongo Fimbo sees this kind of struggle as a historical phenomenon in the jurisprudence of land law when he notes very correctly that: Historically, land has always been an arena of struggles between contending forces. From the 16th to the 19th centuries in England fierce struggles between the emerging bourgeoisie on the one hand and the feudal lords on the other culminated in land becoming a commodity. In this way the bourgeoisie was able to access land through the market. In Africa land was an arena of struggles between the colonized and the colonizer with the colonizer seeking to wrest control over land from the colonized. A Kenya settler, Colonel Grogan, once remarked graphically, “We have stolen his (Kikuyu’s) land. Now we must steal his limbs. Compulsory labour is the corollary of our occupation of the country.” Likewise, in the post-independent period the petty bourgeoisie in control of state power has insisted on vesting the radical title in land in the President in order to maintain control over land as against the peasantry.4 2 See, for example, SHIVJI, Issa G., (1998): Not Yet Democracy: Reforming Land Tenure in Tanzania, London, Dar es Salaam: IIED, Faculty of Law, University of Dar es Salaam, HAKIARDHI. 3 See, foe example, TENGA, Ringo W., “Legitimizing Dispossession: The Tanzanian High Court’s Decision on the Eviction of Maasai Pastoralists from Mkomazi Game Reserve”, Cultural Survival Quarterly, Issue 22.4, January 31, 1999. 4 See FIMBO, G.M, (2004): Land Law Reforms in Tanzania, Dar es Salaam University Press Ltd. INTRODUCTION xix W.R.Tenga and Sist J. Mramba consider struggle over land rights as part and parcel of the human life when they state that: Nobody can live without land, and most people have to share it, creating competing rights. Disputes about rights in land cannot be avoided. People’s relationships to land depend on many factors and have a strong cultural element.5 Chris Maina Peter is even much more to the point when he establishes the link between land and human rights as he observes that: Land is an important resource in the world today. It is the main source of livelihood and survival. Therefore, whoever controls land logically controls the lives of others. This is because that person or persons control what guarantees survival of human beings. Due to the proximity of land to survival, it is frequently related to the right to life6 . What is important to note here, is the fact that it is in the context of human rights that we record many of what I may call the groundbreaking or landmark cases; that is to say, the cases in which courts have either expressly or implicitly...