Title: Land Tenure Reform under the Economic Liberalization Regime-Observations in Northern Tanzania
Paper Prepared for CODESRIA’s 10TH General Assembly on "Africa in the New Millennium", Kampala, Uganda, 8-12 December 2002.
Masao Yoshida
Visiting Professor
Dept. of History, Faculty of Arts, Makerere University
P.O. Box 7062 Kampala, Uganda
Tel. 256-41-531841.
masaoyos@infocom.co.ug
1. Issues in Land Tenure Debate.
There has been much debate on the nature of the communal land tenure as to whether it has seriously hindered agricultural development or it has actually allowed for a significant agricultural development in African context. The debate has been continuing also concerning the actual existing situation of the communal land tenure involving the access and security for the land holders of this type of tenure who see these values eroding.
Many special issues on land tenure by the internationally available journals have been published, such as the Vol.. 63, No. 3 (1992) of Africa. The debate is still going on、but there have been strong pressure from the ongoing economic liberalization process for enacting new land laws which calls for a radical reform of land tenure systems in favour of individualization and privatization of land.
Land tenure systems are quite varied in Sub-Saharan Africa, reflecting the natural differences in ecology which almost determine what kind of crops can be grown, and also reflecting the past history which moulded the social systems on which land laws were established. The access and security which had once provided the holders of land under communal tenure have been much influenced by the process of the rapid increase in population, the introduction of cash crops or commercialization of food crops, and the government policies in encouraging the commercialized crop farming or settled cattle herding. It is therefore very important that the debate must be clearly based on these ecological and social differences, and the existing political and economic configurations on which the problems are brought up.
It seems that there was a considerable influence by the World Bank/IMF policy of economic liberalization in initiating land reform process in many of the African countries in the 1990s. The liberalization hastened the growth of business interests, both domestic and international, in investing in land. It has created new competition over natural resources, between large-scale farmers and smallholder farmers, between pastoralists and farmers, between forest keepers and business interests etc. Incidents of land grabbing had been widely reported, and some of them developed into disturbances. In order to ascertain land policies which should guide the World Bank operations, it had encouraged the African government to hold workshops in which government officials, scholars, donor representatives, NGOs, and local stakeholders were represented. Its aim is to clarify problems, and to move the government to formulate new land tenure policies and possibly enact new land laws. A similar type of workshops were held in a number of countries, and in Tanzania, one called "Arusha Workshop on Land Policy" was held on Aug. 27-29 in 1991.(1)
In the 1990s quite a number of African countries started to formulate national land policies and legislate new land laws. Zambia enacted the Lands Act in 1995,,Uganda enacted its Land Act in 1998, Tanzania its Land Act and the Village Land Act in 1999, and Malawi published its National Land Policy in January 2002. This paper tries to examine the reasons for the new rush for legislating land acts, and tries to show who were the main actors behind this move. The paper concentrates its attention to the case of Tanzania, but the discussion is, I believe, applicable to many countries of the Sub-Saharan Africa.
2. World Bank’s Stance for Land Reform
World Bank’s stance in encouraging the African government to embark on the formulation of new land policy and new land legislation is rather cautious. Many of its staffs advocated the introduction of private land tenure and land titling as a guarantee of tenure security for farmers, often qualifying it as a long term objective(2). Some stressed that it might enable the farmers to use land as collateral for acquiring credit from financial institutions, and to invest more on the land to achieve higher yields of crops. The Bank may never have stated such objectives in its official statement. However, the actions that it promoted, namely the encouragement of free enterprise, and especially of free entry of foreign capital, gave a strong impetus for the African governments’ dealing with the land tenure issues.
In Tanzania, the encouragement of foreign investment led to the enactment of the National Investment (Promotion and Protection) Act, 1990, and the establishment of the Investment Promotion Centre(IPC) under the President. This government action spurred the investors for leasing the land in large scale. Already in 1982, Tanzanian government formulated the National Agricultural Policy which radically changed its previous policy, and advocated various modes of production in the agriculture sector. It clearly recognized the role of large-scale private farming. This new policy "directed that its allocation for agricultural development should be on a longer term basis (with a minimum of 33 years) in order to provide for the security of private investors"(3). This new land policy can be seen as a part of a package that constituted the structural adjustment programmes that the World Bank has pressed the Tanzanian government to adopt.
On the other hand, the World Bank started to ameliorate its activities for pro-poor stance. The change could be shown in the World Development Report 1990, which was a special issue devoted to the problem of "poverty". Dealing with the land tenure issues, it proposed the balancing individual and common property. It says that "shift toward individual land rights tends to undermine the ability of traditional systems to ensure that all members of the extended family have access to land. This feature of their land systems has helped some countries in Africa to avoid the extremes of poverty and landlessness - -. In such cases, encouraging individual land registration and titling may be undesirable. Where traditional systems have failed to provide clear land rights, land titles and registration are useful. - - Small farmers have sometimes been forced to sell their individual holdings. Common-property resources should receive greater attention. They need to be better protected and better managed" (4).
It is clear that by advocating the adoption of complete free economy as the condition of financial assistance, World Bank came to face a dilemma that it may not help the plight of the poor. Thus it started to show a concern that in the case of land tenure reform too it would have to provide an adequate social safety-net to the vulnerable people.
3. Government Bureaucrats and the Process of Land Tenure Reform
At the beginning of the 1990s, the government bureaucrats in many African countries have been facing various difficult questions concerning the workings of land tenure system. They had a backlog of anomalies accumulated during the past years(5).
In Tanzania, the former policy of Ujamaa village, and subsequent abandonment of its villagisation component, left the question of pre-villagisation customary landholding in a very ambiguous position. There were some attempts of village land surveys, and in 1987, Tanzanian government decided on the programme of surveying the village boundaries, ascertaining the land use in the villages, and registering the village land rights in to be completed in 5 years time. However, even in June 1991, only 1836 villages out of 8471 villages in Tanzania mainland (i.e. 22%) had completed the boundary survey, and only 183 villages had completed the registration (i.e. 2%) (6).
Meanwhile, some villagers were allowed to return to their old plot, only to find that the land had been given to those who had previously moved in (7). Some farmers whose land rights had been extinguished by the "Village and Ujamaa Village Act of 1975" brought the case to the law court against the government. In this confused situation, the Tanzanian government appointed the Presidential Commission of Inquiry into the Land Matters, headed by Prof. I. Shivji in 1991, which submitted its report in Nov. 1992.
The Presidential Commission reported that there were too many government bodies dealing with the land matters, and too much interference from different bodies. For instance there were two lines of land disputes settlement, one with the land tribunal and another with the ordinary local court. Double allocation of a same piece of land was rampant. The Commission advocated a separation of the body dealing with land cases from the executive arms, which would be answerable to the National Assembly. It also recommended that all land be divided into National Lands and Village Lands.
However, the Ministry of Lands, Housing and Urban Development at this time created a separate Committee to investigate the inconsistencies in the existing land law. It was instrumental in passing the law called Regulation of Land Tenure (Established Villages) Act, 1992. It extinguished the customary land rights which were affected during the villagisation. However, this law was declared unconstitutional by the High Court in 1994.
It is apparent that the Government bureaucracy was genuinely interested in correcting anomalies of land law brought about by the former villagization policy. However, they wanted to keep the control of land matters under the executive arm. They could not accept the main part of the recommendation of the Presidential Commission, which denied the intervention of the government (President) concerning the alienation of land for the development purposes or for investors who were approved by the Investment Promotion Centre. In this way, the government bureaucracy supported the interest of the World Bank, and became the prime mover of the formulation of the National Land Policy published in 1995(8).
It was also the government bureaucracy’s interest that the peri-urban village land could be alienated. Land market in urban, peri-urban, and some rural areas have developed in recent years, mainly for the wealthy bureaucrats and business people to buy plots for residential purposes and for farming(9). For the bureaucrats the land reform was not only to serve the purpose of economic development of the country through the path of liberal market economy, but to benefit personally using the position of state power in obtaining land for their personal gains.
The National Land Policy of 1995 became the basis for the enactment of the Land Act 1999, and the Village Land Act 1999. The creation of the category of Village Land may have given a deterrent to the kind of illegal alienation of the land belonging to the farmers and villagers which happened in the late 1980s, but the whole tenure reform process has been engineered to meet the interests of the bureaucracy in alliance with politicians and indigenous business interests. Foreign business penetrations were somewhat restricted by not providing freehold tenure in the Act, and by obliging them to get the approval of the village council and the Commissioner of Land, when they want to acquire the leasehold from any village land. However, the villagers may have a weak bargaining power, and the issue of secure land rights of the poor was somehow put aside in the process.
4. Land in a North Pare Mountain Village and Emigration to a New Land
This researcher has made many visits and observed social changes in a village in the North Pare mountains in Kilimanjaro Region of Tanzania since 1991. This was to understand the nature of the village community, its land use, and its farmers’ organizations, especially in relation to the traditional furrow irrigation that the inhabitants have long practiced there, and to know ultimately the actual state of the communal land tenure.
Although in Tanzania, all the land is supposed to belong to the state, most of it is held in a communal type of tenure, and in her law it is often called the deemed right of occupancy. However, it has undergone a type of transformation by the policy of the state, namely by its Ujamaa villege policy. The actual outcome of this policy is that every Tanzanian village has come to have the same administrative structure. The village chairman is an elective position supported by a village executive officer who is a local civil servant, and controlled by the elected village council of 15 persons, who are responsible to the Village Assembly the membership of which is all the adult villagers, male and female. Communal type of land tenure continued to exist, but was modified by the new system of making the village council allocate land, and making it responsible for the first stage of arbitration when a land dispute arises. Such a local administration reform which has a bearing on communal land tenure system can be seen in many other African countries (e.g. Zambia), and is not a unique situation in Tanzania alone.
It has been observed and was well described that the individualization of land tenure has been proceeding as a result of the introduction of cash crops, and the increasing population pressure made the traditional bush-fallow type of agriculture difficult to practice, which caused the individual attachment to a specific piece of land strong. A lack of fallow land brought the practice of renting land very common, and the sales of land have appeared in the densely populated rural areas. Despite the continuous trend for individualization of land in the above sense, written land laws in Sub-Saharan African countries had not been made to adapt to the reality until the 1990s.
In the mountain village in the North Pare (Mwanga District) where I have been observing the land use, renting the land was practiced by 11 households out of 20 households I examined. This enabled the small farmers to cultivate the irrigated land during a dry season even if they did not hold these kind of lands. The rent is very low, usually a pot of local brew called "dengelua" for one year. The monetary value in this case is far less than the value of economic gains by the borrower, and no doubt this is more like a present as a recognition that the land is not his but a borrowed land. This practice led me to conclude that in this area the communal land tenure is existing in substance, and not as a name only.
However, I must hasten to add that this state of affairs can exist only when alternative lands are available for the young people who cannot expect to acquire the new lands of their own in the home village. There is no more land for a new allocation except in the dry low land which belongs to other villages. In the village on the mountain where rainfall is abundant in rainy seasons, the landholding per household is already very small and cannot support a family if subdivided. Almost every youngster, therefore, emigrate to other areas, many to the urban area, but not insignificant number emigrate to other rural areas of Tanzania to take up farming there. It is only because of this emigration that the communal land tenure is being upheld in the mountain village I have observed.
In this particular village, many former inhabitants and youngsters migrated to Morogoro Region. I was told by the villagers that a lot of people went to Mang’ula in the Kilombero valley area, where land is abundant, and the government encouraged settlers to come as the Tanzania-Zambia Railway (TAZARA) passed this area, and needed development along the line. However, the land tenure security for the new settlers are always precarious, as the old inhabitants in the area tend to claim the land belonged to them(10). This kind of movement of rural population seeking new land in Tanzania (rural-rural migration) is still vigorously practiced. The new settlers are usually strong advocate of new land policy, which might give them better security of tenure. They have been creating multi-ethnic type of villages, and have promoted the individualization of land rights. They are quite willing to register their land holding under the village certificate of occupancy.
5. Gender Issues
The relationship of women to land has been an important issue relating the land tenure reform. Under the customary land tenure, women were invariably put under an insecure position in comparison to men in the matter of land holding and use rights. In the communal systems when land is either clan land or lineage land women are put in a weak position as when her husband dies or when she is divorced, she is usually excluded from inheriting the land she used to cultivate. It is only when she herself purchased a parcel of land, or when there is no other person in the family to inherit a land except her, the clan or lineage allows her to hold the land. It is in this regard that the former president of Tanzania, Julius Nyerere, said that Tanzania should adopt the communal spirit that the people had held, but the position of women should be changed to give them the equal rights with men (11).
The new thinking was gradually taking hold in the judgment of law court regarding land tenure dispute, but it was very slow, and depended much in the personal views of the judges and the local villagers’ views. In the Pare mountain area where I was observing changes, there was one case that a women’s appeal was accepted. In this case, a divorced woman who was denied the use of the cultivated land she used for 20 years appealed to a primary court. The husband said that this land was his borrowed land, and would like to return it to the real owner (this was found to be a lie later). She lost the case in the primary court, but later appealed to the land tribunal. The tribunal reversed the decision, arguing that the land was borrowed but a house and farms were created on it, and the women has worked there for 20 years. The value of the land was increased because her labour was put into it. Therefore, she was judged to have a right to occupy the land, and to keep using the land (12). In this case, the argument of the contribution of labour could turn the judgment around, but in the majority of cases, the women’s appeals were likely to be not heard. This kind of situation made the women strong advocate for a new land tenure law for which they expected that they could get a better security of tenure.
The new land act did strengthen the women’s position, at least in the wording of the law. For instance, the co-ownership clause was put as "family land protected by co-ownership in principle favouring both spouses". Consent by married women in case of disposition of land was also spelt out. Other clauses which strengthened the women’s position were: "a fair gender balance as to appointment to the National Land Advisory Council", "prohibition of discrimination against women as regards determination of application for customary rights of occupancy", "restriction of discrimination against women as regards determination of application for customary rights of occupancy", restriction on village councils to allow assignments that could undermine a right of a woman to occupy land under customary right of occupancy", "to ensure that special needs of women for land are adequately met when village councils approve a disposition of a derivative right of a customary right of occupancy", "offer first priority to wife when a husband surrender rights of occupancy", "minimum presentation of women in the Village Adjudication Committee" and "women’s participation in dispute settlement machinery" (13).
These are quite detailed protections of women’s land rights, but of cause the actual implementations must rest of the compliance of the local population who might be still imbued with the traditional male-dominated thinking. In this reference, the case of Uganda Land Act could be referred. Despite the strong presentation of women’s organizations to insert the co-ownership clause in the Land Act of 1998, it was not included in the final Act (14). This shows that women were a driving force for legislating new land laws, but they were often frustrated in the political arena.
6. The Compromises of Different Forces at Work
As was discussed above, in the 1990s, quite a number of countries started to formulate national land policies and have actually legislated new land laws. By giving attention to the economic and political situations of particular countries it becomes apparent that the drastic changes brought about by the liberalization of economy were responsible for this new rush for legislating land acts. However, by closer observations, several different factors seem responsible for the final outcome. These factors have not necessarily been sprung from the same roots, and to attribute this phenomenon to a single cause such as the pressure from the World Bank/IMF may mislead our understanding of the cross-current of the present political economy of land issues. To put it simply, there were following different lines of motivations in legislating new land laws, especially concerning the reform of communal land tenure.
(a) The desire to make the land tenure system uniform throughout a country, or at least provide a few different categories of land tenure systems but is uniformly administered by the state. Such a desire is held strongly by the ruling elite of the state, and where there existed many court cases in which past legislations or decrees were responsible for the confusion, such as the Ujamaa and Ujamaa Villages Act, 1975 of Tanzania, or the Land Reform Decree, 1975 of Uganda, these ruling elite became strong promoters of new reforms. Double allocations of a same piece of land, which often occurred, brought embarrassment to these elite, and compelled them to clarify the principles of law.
(b) The desire to attract foreign investment for agricultural or agro-industrial development. This is of course the direct result of the free market regime of the present international economic formation. The main actor in this move was the World Bank/IMF and its supporters of the so-called donor countries, but also the indigenous business groups. The latter see the chances of embarking on some ventures with or without in partnership with foreign firms or foreign donors. The agricultural land is a few resources which can be utilized with relatively small sum of investment for large and immediate gains. Under the philosophy of promotion of the liberalized economy, those persons who had the authority to administer the land tenure of a specific area, tended to connive at the practice of land grabbing by the businessmen, often in collusion with politicians, and bureaucrats, even when such actions were clear breach of customary practices.
(c) The farmers’ desire to emigrate and open up new lands for farming purposes. They are often youngsters from the area of high concentration of population, who find the new allocation within the home village impossible. Sometimes they migrated to areas where the government encouraged to establish new settlements. However, empty lands are often claimed by the first occupants of the area that they had established land tenure claims there, or it was their traditional home land. The communal type of land tenure cannot give these new comers strong rights where ethnic consciousness has politicized in recent years. These migrants expected a new land law to allow them a security of land tenure in the migrated area in a short time. Whether a new land law would actually give them such rights was another matter, which depended very much on the configuration of the power structure in the country.
(d) Desire to empower certain strata of the population who have been denied the right to hold land under customary practices, or were kept in a weak position. The most apparent case is where women have been denied holding of land in many traditional customs. New land law was advocated by women’s civil groups such as NGOs, and especially by Women members of the Parliament, who proposed that there should be specific written clause for giving women stronger land rights. There efforts gained some success, but were largely frustrated.
These various cross-current of factors were responsible for the final outcome of the Government Land Policies and the legislated Land Acts. It is the products of compromise, but The on-going liberalized economic regimes that the African countries had enclosed had influenced strongly the outcome of the political struggle of the land tenure issues.
7. Concluding Remarks
The reasons for the moves for land tenure reform by legislating new law are many. However, there are also the forces to oppose these changes, and the most apparent reason for no change is that the communal type of land tenure is still giving the important safety-net to the poor people in the less populated, vast area of rural Africa. Any land reform which may be carried out must bear this important fact, and must care for the preservation of this safety-net of access to land by the rural poor.
It is important to have a flexible approach as indigenous land tenure and traditional leaders in some communities are still legitimate, and much supported by vulnerable groups such as women, while in other communities they are more discriminatory and corrupt, without accountability for the community. Land sales by traditional authorities or elected councilors without consulting the villagers are much documented as the lack of legitimacy of the leaders. It could be said that, for many women even the traditional institutions are much closer to get access, and they are more understanding to their day to day problems, which concern their land rights, than the new institutions which were supposed to be more protective. Very often, the new arrangements are slow in starting, often due to lack of government funds. It is important that a care must be exercised to protect the poor section of community from losing the land rights they now possess.
Notes:
(1) Tanzania, Ministry of Land, Housing and Urban Development, Proceedings of the Arusha Workshop on Land Policy, August 27-29, 1991.
(2) Such views were expressed for instance in, A. Keck, N.P. Sharma, and G. Feder, Population Growth, Shifting Cultivation, and Unsustainable Agricultural Development: A Case Study in Madagascar, World Bank Discussion Papers 234, Washington D.C.: World Bank, 1994, pp. 39-42.
(3) Kiondo,A.S.Z., "Structural Adjustment and Land Reform Policy in Tanzania: A Political Interpretation of the 1992 National Agricultural Policy", in Forster, P.G. and S. Maghimbi (eds.), Agrarian Economy, State and Society in Contemporary Tanzania, Aldershot: Ashgate, 1999, p.48.
(4) World Bank, World Development Report 1990, Washington D.C.: World Bank, 1990, p. 65.
(5) In Uganda, there was a question of reviving customary land tenure. It was extinguished by President Idi Amin through the Land Reform Decree, 1975, which vested all the land in Uganda in the State. This caused many disputes. See Oyene, J.E., Recent Trends in the Lango Land Tenure System, Centre for Basic Research, Working Paper No.36, Kampala, n.d.
(6) Tanzania, Report of the Presidential Commission of Inquiry into Land Matters (often referred as Shivji Report), Uppsala: Scandinavian Institute of African Studies,1994. p. 49.
(7) Chachage, C.S.L., "Land Issues and Tanzania’s Political Economy", in Forster,P.G. and S. Maghimbi (eds.), Op.cit., p. 67.
(8) Ibid., p. 69.
(9) Kiondo, A.S.Z., Op. cit., p.48.
(10) Such cases were reported in Morogoro Region. See Izumi, K., Economic Liberalisation and Land Question in Tanzania, Ph.D. dissertation, Roskilde University, 1998 (Unpublished).
(11) Nyerere, J.K., Ujamaa: Essays on Socialism, Dar es Salaam: Oxford University Press, 1970.
(12) Information from a cartography technician in the Mwanga District office, August 1993.
(13) Havnevik, K.J. and M. Harsmar, The Diversified Future: An Institutional Apprpach to Rural Development in Tanzania, Department of Rural Development Studies, Swedish University of Agricultural Sciences, 1999, pp. 101- 102.
(14) Mugambwa, J.T., Source Book of Uganda’s Land Law, Kampala: Fountain Publishers, 2002, pp.82- 95.