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

Chapter Two - Land Law Reforms and Tenure Systems in Tanzania

Chapter Two Land Law Reforms and Tenure Systems in Tanzania Thefirstthingtonoteaboutlandlawisthatnosubjectcanownland. - Judith-Anne Mackenzie.167 Land is the basis of human life and all Tanzanians should use it as a valuable investment for future development. Because the land belongs to the nation, the Government has to see to it that it is used for the benefit of the whole nation and not for the benefit of one individual or just a few people. -Julius Kambarage Nyerere.168 167 MACKENZIE, Judith Anne, (1993): A Practical Approach to Land Law, 4th Edition, Blackstone Press Ltd, at p. 1. 168 NYERERE, Julius Kambarage, (1968): Ujamaa: Essays on Socialism, Dar es Salaam, Oxford University Press. 44 LAND AS A HUMAN RIGHT Land, Land Tenure and Land Law Reforms Before going into a long discussion on the historical developments that gave rise to various tenure systems and land law reforms in Tanzania, it may be worthwhile to bring the readers’ attention to the basic concepts, that is: land, land tenure and land law reform. The Concept of Land The old maxim regarding land, quicquid plantatur solo solo cedit, means that whatever is attached to the soil becomes part of it. However, the term “land” is, more often than not, known differently to different people depending on one’s approach to the subject. What the term means to a lawyer is far more than what it does to a layman. But also the term may mean different things even among the lawyers themselves. The variation arises out of what I refer to as a broad (traditional) definition of land on one hand, and a narrow (non-traditional) definition on the other. Traditionally, therefore, the term land has a wide meaning and application. It includes the surface of the land (soil) and all other things on the soil which are considered to be part of the land by nature, such as rivers, streams, lakes, lagoons, creeks, mines and minerals, trees like palm trees, or by being artificially fixed to it like houses, buildings and any other structures whatsoever. It also includes any estate, interest or right in, to, or over the land or even any other things which the land denotes, for example, the right to collect herbs or to hunt. By this definition, a person may claim interest (s) in a piece of land without physically owning it! We explore the non-traditional definition of land by way of a reference the statutory definition of land as provided by the Tanzanian Land Act, 1999169 . In this Act: ...“land” includes the surface of the earth and the earth below the surface and all substances other than minerals or petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by water.170 169 [Cap. 113, R.E 2002]. 170 See Section 2. It is also important to note that even within legal systems; there are significant variations in the definition of the term land. For example, while the term “mines and minerals” do not fall under the definition of land in Tanzania, the same is included in the definition of “land” under the English Law of Property Act, 1925. See section 25 (1) (ix) of this Act which defines “land” to include, among other things, “mines and minerals whether or not held apart from the surface...” CHAPTER TWO 45 It means that under the statutory definition a person who owns land does not own any minerals or petroleum existing there. Once a discovery of minerals or petroleum is made into one’s land, the holder thereof shall be compulsorily required to transfer the same to the government to give room for the mining industry if need be. It is important to note, here, that all land in Tanzania is public land and falls into three categories: general land, village land and reserved land.171 As the names suggest, general land is public land, which is neither reserved nor village land, and includes any unoccupied land172 , while reserved land is land which is reserved for specific public uses including, for example, all land under the forestry and tourist industries.173 Understanding the classification of land is important to a lawyer, because each of the three categories presents its unique features when it comes to land use and control, including the body of laws that govern them as well as the...