MZUMBE UNIVERSITY

FACULTY OF LAW

PROGRAMME: LL. B II

NATURE OF TASK: GROUPASSIGNMENT

COURSE: LAND LAW I

CODE: LAW 220

LECTURER: E. PROSPER

STREAM: A, GROUP 1

S/N NAMES REG: NUMBER SIGN

01. SAMUEL D. SHUMA 11301019/T.18
02. AZIZA S. MWINJUMA 11301066/T.18
03. WAMBURA W. MAGESA 11301089/T.18
04. MAKORI LUCAS MAKORI 11301002/T.18
05. AISHA H.JUMA 11301039/T.18
06. ALLY C.ADRIAN 11301005/T.18
07. DORCAS ABENEGO 11301026/T.18

QUESTION NUMBER: 01

The tension between customary tenure and formal tenure is a historical phenomenon. The
National and Land Policy of 1995 and the Land Acts of 1999 are the panacea for such tension.
Substantiate the above assertion.
 TABLE OF CONTENTS

1.0: INTRODUCTION ..............................................................................................................1

1.1: Meaning of Land tenure. ......................................................................................................1
1.2: Meaning of Customary tenure. .............................................................................................1
1.3: Meaning of formal tenure. ....................................................................................................2

2.0: THE HISTORICAL TENSION BETWEEN CUSTOMARY TENURE AND FORMAL

TENURE. .......................................................................................................................2
2.1: Pre-colonial era ....................................................................................................................2
2.2: The tension that existed during Germany colonial era (1884-1918).......................................2
2.3: The tension between Customary and formal Tenure during British Colonial era. ..................4
2.4: The tension between customary tenure and formal tenure during independence and post-
independence (from 1961-to 1980’s). ..............................................................................5
3.0: Enactment of Land Policy of 1995 and Land Acts of 1999. ..............................................7
4.0: The panacea brought by the Land Policy of 1995 and Land Acts of 1999 on the
problem of tension between customary tenure and formal tenure in Tanzania. ........7
4.1: The panacea brought by Land Policy of 1995. ......................................................................7
4.2: The panacea brought by the Land Acts .................................................................................9
5.0: Challenges on the tension between customary and formal land tenure despite of having
Land policy of 1995 and Land Acts of 1999. ............................................................... 10
6.0: CONCLUSION. ............................................................................................................... 11
BIBLIOGRAPHY ................................................................................................................... 12

1
1.0: INTRODUCTION

Before colonialism land was the instrument which were owned communally and the value of it
was very low in the extent that most of areas were virgin, this was due to the population size and
nature of activities conducted by people in that particular time, later on when the Germany came
early in 1884 and colonized Tanganyika up to 1818 there after the British took the reign from
1919-1961, after the coming of the two mentioned metropolitan powers, the value of land started
to be comprehended since for them land was very potential in satisfying their demand. The
coming of colonialists brought various problem since the formal land tenure were introduced and
seems to be superior than customary land tenure which was the only means for indigenous to
own land, Despite of various efforts done to enable the home-grown to own land via deemed
right of occupancy specifically in British period but the problem remains in place.

Later on after the attainment of independence in 1961, various approaches were taken by the
government of TANU to ensure the two system are well manipulated but still the challenges
remain there, due to that, the government decided to come up with the Land policy of 1995 and
the Land Acts (Act no. 4 and 5 of 1999).

The confab here under will focus on the extent to which the instruments enacted by the
government solve the said historical problem on the tension of customary and formal tenure
focusing on various issues which are closely connected with the general concept of land tenure in
Tanzania from pre-colonial era up to date.

1.1: Meaning of Land tenure.

The doctrine of tenure is delivered from latin ‘tenure’ meaning ‘to hold’. The concept connotes
not merely the holding of land rather; it implies also possession or occupying the same from the
paramount Lord. Therefore, Land tenure may be defined as the system in which property right to
land allocated, transferred and monopolized by individual, group of people or an institution1.

1.2: Meaning of Customary tenure.

Customary tenure this is the traditional system of holding land, customary tenure is not subject to
title deed but its subject with deemed right of occupancy. Under customary land tenure the

1
Retrieved from https://www.land-links.org/what-is-land-tanure/ on 8th December,2019 0n 08:24 p.m.

1
procedure evolved are traditional in nature, and this form of tenure was the only tenure used in
pre-colonial African societies2.

1.3: Meaning of formal tenure.

Formal tenure this is a formal system of holding land. Formal tenure is subject to grant right of
occupancy; the system was introduced by the colonialists who came to colonize Tanzania.
Formal system of holding is subject to many procedures and implications that a person should
pass through before acquiring the right of holding land, even after acquiring land still a person is
subject to some conditions, for instance in Tanzania the formal tenure is subject to payment of
taxes.

2.0: The historical tension between customary tenure and formal tenure.

2.1: Pre-colonial era

Before colonialism there were no existence of tensions between customary tenure and formal
tenure as landholding was based on customary law and culture of each in tribe. Ownership of
land was communal in nature and every member of the community had equal access to land.
During pre-colonial era land could be acquired through allocation by Clan head or Chief, as a
gift, by clearing a virgin forest, or purchase. For instance in the case of Mtongori Nyamagani v.
Richi3,it was held that local elders had the power and right to Allocate vacant or abandoned
land but not occupied unless there was a rule limiting the area of land a person could possess.

2.2: The tension that existed during Germany colonial era (1884-1918)

By the year 1884 Tanganyika by then became a colonized country for the first time where by
Tanganyika territory by then became under Germany domination. Following the Berlin
conference Africa was divided into European country as an area of influence like area to access
raw materials, cheap labor and so on. The coming of Germany colonialist destructed completely
even the system of holding land where by several Legislations were enacted to govern the access
of Land.

2
Meaning of customary land tenure retrieved from https://landportal.org.topics/customary-land-rights.
3
(1973) James RW &Fimbo GM at 564

2
The first Germany law that was enacted to govern the system of holding land is the Imperial
Decree of 18954, where by section 1 of the decree provided that all the land in German East
Africa Tanganyika by then inclusive is regarded as the crown land except where the claims of
ownership could be proved by private persons or certain or specified persons.

The tension between customary land tenure and formal land tenure during German colonial era
can be derived from the extend that the first law which was enacted for recognize the formal
tenure that is the Imperial Decree of 1895 contradicted itself with another law enacted to
implement the Imperial Decree that is a Circular of 1896, this is due to the fact that the decree
recognized are the private change or other persons land, native land inclusive to be not of the
crown.

On the other hand the circular (rules to implement imperial decree) Distinguished between
ownership claims and mere rights of occupation where by ownership claims was to be proved by
documentary evidence and this instance shows that this was particularly set for German settlers
and mere right of occupation could be prove only by cultivation and were earned for native.
Therefore, native land was automatic held to be unowned land because the only way to justify
ownership was through documents of which natives could not possess, hence native land was
direct termed to be crown land5.Therefore, the tension between customary tenure and formal
tenure during Germany rule can be seen from the fact that, the legislation which provided the
recognition of formal tenure and customary tenure in Tanganyika it however picked away the
recognition of customary tenure by imposing conditions which could not be fulfilled by the
natives.

In practice only settlers engaged in plantation agriculture such as sisal, coffee, rubber and cotton,
could prove their title and enjoyed security of tenure. The indigenous people could not prove
ownership. Hence, they were left with permissive rights of occupancy.

The policy of the German colonial administration vacillated between plantation agriculture ran
by settlers and African small peasant cultivation. Generally, the policy favored alienating land to
the settlers by outright sale or lease. By the end of First World War some of the best lands in the
highlands and farm amounting to 1,300,000 acres had been alienated to foreigners.

4
Imperial decree regarding creation, acquisition and conveyance of Crown Land and regarding the acquisition and
conveyance of Lands in German East Africa, published on 26/11/1895
5
Tenga.W.R et al (2008) Manual on Land Law and Conveyancing in Tanzania

3
2.3: The tension between Customary and formal Tenure during British Colonial era.

After the First World War Tanganyika became a Trust Territory under British Administration
which by International Agreement was required to take into consideration native laws and
customs in framing laws relating to the holding or transfer of land or natural resources and to
respect the rights and safeguard the interests present and future of the native population. No
native land or natural resources could be transferred to non – natives without prior consent of the
competent authorities6.

The British passed their major land tenure legislation in 1923 called the Land Ordinance Cap.
113 which declared all lands, whether occupied or unoccupied as public lands, except for the title
or interest to land which had been lawfully acquired before the commencement of the Ordinance.

All public lands and interests were vested under the control of the Governor to the held for use
and common benefits of the natives.

In 1928, The Land Ordinance was amended to formally recognize customary law. The right of
occupancy was re-defined to include the title of a native or a native community lawfully using or
occupying land in accordance with the native law and customs (deemed right of occupancy)
despite this recognition, a dualistic system of that government evolved, were by right granted by
the state where functionally, superior to customary right in land. Judicial decision clarified that
the two did not enjoy the same status in court of law. The native right or customary tenure was
seen as inferior in comparison to the granted rights. For instance, in the case of Mohamed
Nyakioze v. Sofia Mussa7, where the court was trying to show the equality of the right of the
holders of two tenures. The court state that Section 2 of The Land Ordinance defines a right of
occupancy as title to use and occupation of land and include title of a native or non-native
community lawful using or occupying land in accordance with the native law and customs…….It
would appear that a Certificate of Occupancy could be issued to a person whose title to the use
and occupation of land in accordance with the native laws and customs. Therefore, the tension
here can be seen from the word lawfully as a requirement to occupy deemed right of occupancy,
as the land could not be lawfully occupied without the certificate of occupancy granted by the
government.

6
Article 6 and 7 of The Trusteeship Agreement.
7
[1971]HCD 413.

4
Under the British the tension between formal tenure and customary tenure can be derived from
the fact that deemed right was not given the same status as granted right of occupancy. For
instance, in the case of Muhena bin Said v. Registrar of Titles8the appellant applied to the
Land Registry to be registered as an owner in fee simple. His application was rejected on the
grounds inter alia that there was no evidence to satisfy the registrar that his occupation was other
than the admitted general permissive occupation by all inhabitants of the territory. He added to
prove that he had been in possession of the land for 30 years prior to the coming of the Germans
and British. The court was of the view that although the proviso to section 3 of the Land Tenure
Ordinance 1923 did provide that nothing could affect any title or interest in land lawfully
acquired before the date of its commencement but the original tribal customs had no concept of
individual ownership in fee simple.

Again, in Mtoro Bin Mwamba v. Aattorney General9the applicant applied for first registration
as a beneficial owner of a land in fee simple under the Washomvi custom but was refused. He
brought the matter to court. In court he argued that the washomvi tribe recognized individual
ownership equivalent to freehold. It was decided inter alia that the Washomvi law or custom law
did not know individual ownership to land except individuals usufructuary rights10 and that
where land was held by a native the inference was that the possession was permissive and not
adverse.

2.4: The tension between customary tenure and formal tenure during independence and
post-independence (from 1961-to 1980’s).

The independent Tanzania Government maintained more or less the same colonial land policy
and practices with some minor reforms till 1995. After independent the Land Tenure Ordinance
of 1923 was retained with only few amendments. The land in Tanzania continue to be public
land and the president became the custodian of all land on behalf of the citizens of Tanzania. The
concept of tension between customary and formal tenure still existed.

In 1962 the government paper was issued to cease the free holding system and introduce the
government lease and this was implemented in 1963 by enacting The Free Hold Title
(Conversion) and Government Lease Act of 1963.

8
(1948) 16 EACA 79
9
(1953) 2TLR 327
10
Essentially this meant the right to use and occupy land but not ownership.

5
However, from 1961 to 1990’s TANU Government undertook strategies to boost the customary
land tenure and the struggle went through stages like the improvement and transformation
approach (1964-1969). The Improvement approach aimed at encouraging Agriculture
Development. However, it was criticized by the World Report that it focuses on Short time
solution.

Furthermore, the tension between Customary tenure and formal tenure can be seen from various
Land tenures reforms undertaken by TANU Government such as The Conversion of Freehold
Titles, whereby the Government enacted the Freeholds Titles (Conversion) Leases Act, No.24 of
1963 with aim to convert estate of fee simple into government leases, and the likes.

In 1967, the concept of communal ownership of land gained momentum and this was done
through Arusha Declaration.

In 1973, The Rural Land Planning and Urbanization Act, No.15 was enacted to implement
Socialism and Self Reliance and empowered the President to declare specific areas to be for
UJAMAA VILLAGE.

In 1975, The Ujamaa Villages (Registration, Designation and Administration) Act No. 21 was
enacted and empowered the district development council to allocate land to villagers.

The concept of villagization brought a lot of confusion between a right of occupancy brought by
the District Development Council and the existing customary tenure. The tension between
customary tenure and formal tenure grown up by the Government Notice11, which extinguished
customary right and this can be evidenced by the judicial decision in the case of Tito Saturo & 7
others v. Matiya Seneya and others12whereby in this case the plaintiff went before the court to
challenge the GN.25 of 1974 and the court held that notice to be a nullity because it was
depriving customary right.

In 1990’s Villagization Scheme was replaced by Urbanization Scheme, and the Government
decided to go back to colonial mode of occupancy that is Grant of Certificate of Right of
Occupancy. The Government formed The Presidential Commission for Land Tenure to
investigate the problem relating to land tenure and the commission identified the tension between
customary tenure and granted of right of occupancy. And commission said in order to overcome
those problems land must be constitutionalized, there must be abolition of political monopoly of

11
GN No.25 of 1974.
12
Civil case No.27 of 1985.

6
land and advised that land should not be under the president, there must be an establishment of
national land commission which is accountable to the parliament and not to the president, there
must be an establishment of urban land and village.

Therefore, the Government of Tanzania found that they cannot implement the found of the
commission, if there was no National Land Policy.

3.0: Enactment of Land Policy of 1995 and Land Acts of 1999.

After the appointment of Shivji commission which started working in June 1992, the commission
come up with a report Volume I of November 1992 and Volume II of January 1993.while
volume one contains recommendations on land policy and land tenure volume two contains
recommendations for likely resolution of certain land conflicts.

Recommendations which brought under volume one, are the ones which influenced the
enactment of land policy of 1995 since the commission was in the considered view that the
National Land Policy will be guideline framework for a considerable period of time. Apart from
that the commission recommends on the enactment of the basic land law and the suggested the
incorporation of the basic principles of the National Land Policy into our basic Land Laws.
Therefore, formulation of Land Policy paved the way to the enactment of Land Laws. Hence, in
1999 the Government via the Legislature enacted the two land laws which are Land Act Cap
11313 and Village Land Act Cap 11414, where by the two laws enacted in 11st February, 1999
assented by the President in 15th May,1999 and come into force in 2001 via G.N. No.485 and
486 of 2001.

4.0: The panacea brought by the Land Policy of 1995 and Land Acts of 1999 on the
problem of tension between customary tenure and formal tenure in Tanzania.

4.1: The panacea brought by Land Policy of 1995.

The formulation of Land Policy of 1995 enabled the government to focus on solving various
problems including the challenges of the said tension of customary and formal land tenure, due
to its objectives and policy statements as follows;

13
Act No.4 of 1999.
14
Act No.5 of 1999.

7
The policy aimed and promoted equitable distribution of and access to land by all citizens,
by doing so, the policy paved the way to cure the existed contradictions between customary
system of holding land and formal system of holding land because by insuring equal access to
land, the natives who acquired land through deemed right of occupancy could have equal access
to land like those who acquired the land through grant right of occupancy.

The policy ensured that existing right in land especially customary rights of small holders
(peasants and herdsman were the majority of population of the country) are recognized,
clarified and secured in law. In implementing this objective which stands as a solution to cure
the conflicts that existed between customary tenure and formal tenure, the policy was followed
by the enactment of the Village Land Act of 199915 so as to protect the customary rights of small
holders.

Apart from the objectives provided by the Land Policy which have great connection with the
matter of land tenure but also the Policy had the so-called policy statements on land tenure
which also had the contributions to cure the tension between the customary and formal tenures
as follows;

Firstly, the policy proposed that the rights and interests of citizens in land shall not be
taken without the due process of law. by doing so, the policy is said to be the solution of the
existed legislations which interfered with customary rights and interests of citizens by allowing
the executive to evict any person from land with the view that it was for public interest even
without following due process of law like providing reasonable compensation.

Also, the policy provided that, the power of the executive with respect to land
administration will be subject to limitations embedded in laws and procedures. This is the
sign of solutions to the tension that faced natives with deemed right of occupancy from the
executive on the basis of claiming that the required land was for public interest.

Another solution brought by the policy can be derived from the point of view that, the
policy advocated that the village councils should administer village land. Since it is widely
known that most of village land are customarily occupied (occupation by deemed right of
occupancy) thus, the direction provided by the policy to have village council as the administrator
of village land intended and solved the tension subjected to customary tenure against formal

15
Act No. 4 of 1999.

8
tenure since in implementing the aforesaid, the policy advocated further that consultation and
consent of a village council was required whenever alienation village land was necessary, hence
the tension between customary tenure and formal tenure resolved.

Also, Land Policy proposed that all grants of land shall be done after the subject has been
full surveyed and approved by the Director of Survey and Mapping, basing on this policy
statement show that the policy became a solution of the preexisted contradictions between formal
and customary land tenure. Looking at the cause especially in this particular point no portion of
land could be granted the person wrongly as it was to be surveyed first.

Furthermore, the panacea of National Land Policy to the tension between customary and formal
tenure can be seen from the policy statement that land will be allocated to investors according to
the ability to develop it and that interest of citizens over their land shall be safeguarded.

4.2: The panacea brought by the Land Acts

As the result of the National Land Policy of 1995, in 1999 there were enactment of Land Acts
such as The Land Act Cap 113 and the Village Land Act Cap 114 of which both aimed to solve
the existed tension between customary and formal tenure as follows;

Recognition of Customary and formal tenure, under section 4(3) of the Land Act16,the Act
recognize both deemed right of occupancy and granted right f occupancy as the lawfully means
of holding land in Tanzania provided that such land is lawfully occupied. Therefore, basing on
the said provision the land Act has been a panacea to the pre-existed tension between the said
two land tenures.

Acknowledgement of the status of land tenure, the Land Act has been a solution to the existed
tension between customary and formal tenure as it recognizes and appreciate the two forms of
tenure to be of the same status as it is provided under section 18(1) of the Village Land Act17,this
is said to be a solution because formally particularly during the British rule the granted right of
occupancy was taken to be of high status than the deemed right of occupancy.

Recognition of Land Dispute Settlement by courts of law, prior to the enactment of Land Act,
particularly in 1992 the government enacted Legislation to stop filling of any land dispute and
cease cases which were already filled in the court of law. But this is cured by the Land Act which
16
[Cap 113 R.E 2002]
17
[Cap 114 R.E.2002]

9
allow the filling of land dispute in the courts of law as per Section 167 of The Land Act18, which
provide exclusive jurisdiction to certain policy to hear and determine all manner of disputes,
actions and proceedings concerning land.

Land Act provide the basic framework for the local community to manage and govern
customary village land. Importantly, it outlines specific procedure before the acquisition of the
village land and how it can be granted, therefore, the law allows for the application of any kind
of rights whether it is granted right or deemed right. For instance, under section 8 of The Village
Land Act, village council has the mandate to deal with all matters related to deemed right of
occupancy as well as granted right of occupancy.

Land Acts represents substantial reforms of the prior tenure framework that had been in
existence since the Land Ordinance of 1923. For example, by these laws, all Tanzanians above
18 years of age have rights to acquire and own land. All existing property right are recognized
and protected, including customary titles, and land should be used productively in such uses
should comply with principles of sustainable development.

5.0: Challenges on the tension between customary and formal land tenure despite of having
Land policy of 1995 and Land Acts of 1999.

Despite that Tanzania has a National Land policy and Land Acts that aimed at promoting
harmonious land ownership in the Country, there exist numerous challenges which are closely
connected to the administrative and adjudicative issues, the recent challenges on the tension
between the said tension are like the following;

Alienation of the people through accumulation of Land in the hands of big national and
multinational companies leaving small scare producers landless. Under such situation people
who are closely affected are the ones who own land via deemed right of occupancy.

Absence of adequate and coordinated land information. This is mainly manifested in the lack
of awareness about land information amongst the people, such a problem has created enormous
poor planning for land utilization and it has eventually lead to the building the houses without
planning especially in the area which have group of people who own land via deemed right of
occupancy.

18
[Cap 113. R.E. 2002]

10
Cumbersome procedures of accessing right occupancy, after the enactment of land Acts, still
the procedures of accessing either customary right of occupancy or granted right of occupancy
are subjected to heavy qualifications/conditions. For instance, under section 22(2) and (3) of the
Village Land Act19 provides for the conditions which must met by an applicant to be granted the
customary right of occupancy, this includes the application which should be made in a prescribed
form send by the applicant and so forth.

Retaining of basic features and characteristics of the old systems. Consistent with the old
system, the Land Act places the ultimate land ownership (radical titles) in the president as the
trustee for all Tanzanians as stipulated under section 4(1) of the Land Act20, hence, making land
tenure a matter of usufruct rights as defined by various lease hold.

6.0: CONCLUSION.

Since the process of creating Land Policy and Land Acts has not been smooth one. A number of
observers have even doubted how much the final product reflects the needs of ordinary
Tanzanians, as the process, was donor-driven, and that ultimate power over remained in the
executive arm of government. Therefore, it high time for policy and legal reformist to pay
attention to the voices of the poor which are increasingly demanding, people they should be
engaged in various dialogue that could enable the government to solve various problems that
they have great connection with land tenure and other issues relating to land in rural and urban
areas. Through public debates, differences could be realized in local areas. Furthermore,
national, regional and municipal government should increasingly provide support to rural
communities on matters relating to land ownership.

It is important that these bodes of government should tirelessly provide regulations and
guidelines to ensure fairness in the handling of land matters. Besides, Tanzania need to have a
village land topographical mapping, especially for rural areas. This will enable village authorities
and villagers in general to build their land in organized way, and it will limit the issues of illegal
land ownership.

19
Cap [114 R.E.2002]
20
Cap 113[ R.E 2002]

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 BIBLIOGRAPHY

The Constitution of the United Republic of Tanzania of 1977.

LEGISLATIONS
The German East Africa Imperial Decree of 26th Nov.1895
The Land Registry Ordinance 1923
The Land Act Cap 113 [R.E 2002]
The Village Land Act Cap 114 [R.E 2002]

CASE LAWS
Mohamed Nyakioze v. Sofia Mussa [1971] HCD 413.
Muhena bin Said v. Registrar of Titles (1948) 16 EACA 79.
Mtoro Bin Mwamba v. Aattorney General (1953) TLR 327.
Tito Saturo & 7 others v. Matiya Seneya and others, civil case No.27 of 1985. (Unreported).

BOOKS
James, R.W. and G.M. Fimbo, (1973), Customary Law of Tanzania: A Source Book, Nairobi:
East African Publishing House.
Tenga, Ringo W.and Mramba, S.J, (2008), Manual on Land Law and Cconveyancing in
Tanzania: Dar es Salaam: Law Africa Publishing Ltd.

POLICY
United Republic of Tanzania (1995), National Land Policy, Government Printer, Dar es Salaam.

JOURNALS
Lyall, A.B., (1973). "The Foundation of Land Law and Policy in colonial Tanganyika", History
Research Seminars, University of Dar-es-Salaam.
Pinckney, C.P. and P. Kimuyu, (1994). "Land Tenure Reform in East Africa: Good, Bad or
Unimportant", Journal of African Economies, Vol. 3, No. 1.
Shivji, I.G., (1996). "Contradictory Perception on Rights and Justice in the Context of Land
Tenure Reform in Tanzania", Paper presented at the TAWLA Workshop on the Land
Bill.

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