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

Chapter Three - Land Delivery Systems: The Acquisition of Land

Chapter Three Land Delivery Systems: The Acquisition of Land Land has intrinsic value which cannot be likened to a bag of beans or maize which can easily be purchased from the market. - Judge H.R. Nsekela402 402 Mazaher Limited v Murray K. Chume and Another, High Court of Tanzania (Commercial Division) at Dar es Salaam, Commercial Case No. 89 of 2002 (Unreported). 94 LAND AS A HUMAN RIGHT The discussion on land delivery system, in this chapter centres on the processes involved in accessing land in Tanzania. The topic covers one main area, namely the acquisition of land, and answers the basic question: How does a person, who is in need of land get it? Traditionally, there have been in place several systems through which land can be accessed or acquired. Some of these systems in Tanzania recognised and, therefore, protected by the Land Acts. These include, for example, the system of land allocation by the State, and land purchase in the market. However, the Acts are silent with regard to other systems such as acquisition of land by adverse possession, inheritance, allocation by the head of the family or clan, and gift inter vivos. My pre-occupation in this chapter is to discuss these systems and show how they operate in law and in practice. Land Allocation by the State Application, Grant and Revocation of Title We learn from the Land Acts403 that a person who acquires title to the use and occupation of the land in Tanzania, including title of a Tanzanian citizen of African descent or a community of Tanzanian citizens of African descent using or occupying land in accordance with customary law, has a right of occupancy over that land. It follows that when such title is obtained through a process of application and the subsequent allocation or grant by the established authority such as the state or village government, then we say it is granted right of occupancy. When the title is granted to a person by virtue of customary law, or when a person occupies and uses land under native laws and customs, this is known in the land law jurisprudence, as customary right of occupancy. The history of granted right of occupancy in Tanzania dates back to 1923 when it was introduced as one form of land tenure system by the Land Ordinance404 . However, what was not in place until the coming in of the Land Acts was the framework on the legal procedures to be involved in the acquisition of a granted right of occupancy. In 1978, there was even an administrative attempt to address this lacuna. Precisely, the Ministry of Lands issued an important circular405 . The circular introduced, in the 403 See section 2 of both the Land Act and the Village Land Act. 404 Section 6 of the Ordinance provided for granted right of occupancy, while section 10 provided for its revocation by the Governor if such revocation was necessary for public interests. 405 This is Circular No. MLHUD-C-1133/11/23 of 13 November, 1978. See Colonel Kashimiri v Naginder [1988] TLR 163. CHAPTER THREE 95 first place, the procedure of issuing a letter of offer as a necessary step before a person was given a certificate of occupancy. In the second place, the circular established what was known as Plot Allocation Committees, such as the Urban Planning Committee, which were mandated to receive applications, make considerations and issue letters of offer to the successful applicants. However, we read from the literature406 that since the institution of Plot Allocation Committees was created, two problems remained intact. In the first place, plot allocations were sometimes made without the meeting of the committees. In the second place, there were serious double allocations which were mainly caused out of the existence of several institutions with concurrent jurisdiction to allocate land, such as the Plot Allocation Committees on one hand, and the District Land Officers on the other hand. It is also on record that corruption407 was another problem that adversely affected the process of land allocation. As can be seen from the foregoing discussion, one of the greatest achievements of the Land Acts is that the Acts now provide for a clearly detailed and succinct procedure for the application and grant of rights of occupancy.AccordingtotheLandAct,forexample,theprocedurebegins by a formal application of a right of occupancy in a prescribed form408 which is delivered to the Commission for Lands...